1
Exhibit 10.27
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
by and between
Integrated Device Technology, Inc.
("Seller")
and
Cadence Design Systems, Inc.
("Buyer")
December 15, 1998
2
TABLE OF CONTENTS
PAGE
----
1. PURCHASE AND SALE OF PROPERTY........................................................1
1.1 Purchase and Sale.............................................................1
1.2 Description of Property.......................................................2
2. PURCHASE PRICE.......................................................................2
2.1 Amount........................................................................2
2.2 Deposit.......................................................................2
3. BUYER'S CONTINGENCIES................................................................3
3.1 Initial Contingencies.........................................................3
3.2 Decommissioning Contingency...................................................6
3.3 Buyer Improvements During Decommissioning Contingency Period.................10
3.4 Dispute Resolution...........................................................11
4. CONDITIONS TO CLOSING...............................................................12
4.1 Buyer's Closing Conditions...................................................12
4.2 Buyer's Remedies.............................................................13
4.3 Seller's Closing Conditions..................................................14
4.4 Seller's Remedies............................................................14
4.5 Liquidated Damages...........................................................15
5. SELLER'S COVENANTS AND AGREEMENTS...................................................16
5.1 Other Contracts..............................................................16
5.2 Mechanic's Liens.............................................................16
5.3 Existing Service Contracts...................................................16
5.4 Access to Property...........................................................16
6. REPRESENTATIONS AND WARRANTIES......................................................16
6.1 Seller's Representations and Warranties......................................17
6.2 Seller's Knowledge...........................................................19
6.3 Seller's Indemnification Against Breaches by Seller..........................19
6.4 Seller's Indemnification Regarding Hazardous Materials.......................19
6.5 Buyer's Representations and Warranties.......................................20
6.6 Survival.....................................................................20
7. CLOSING.............................................................................20
7.1 Escrow.......................................................................20
7.2 Closing......................................................................20
7.3 Seller's Closing Obligations.................................................21
7.4 Buyer's Closing Obligations..................................................22
7.5 Close of Escrow..............................................................22
7.6 Termination of Escrow........................................................22
7.7 Possession...................................................................22
7.8 Prorations...................................................................22
7.9 Closing Costs................................................................23
7.10 Commissions..................................................................23
7.11 Parties to Bear Own Expenses.................................................24
7.12 Acceptance of Title..........................................................24
8. RISK OF LOSS........................................................................24
8.1 Condemnation.................................................................24
8.2 Damage and Destruction.......................................................24
9. MISCELLANEOUS.......................................................................24
9.1 Definitions of Environmental Laws and Hazardous Material.....................24
9.2 Assignment; Binding Effect...................................................25
9.3 Severability.................................................................26
9.4 Entire Understanding.........................................................26
9.5 Amendments...................................................................26
9.6 California Law...............................................................26
9.7 Waiver.......................................................................26
9.8 Notices......................................................................26
9.9 Captions.....................................................................28
9.10 Exhibits.....................................................................28
9.11 Time of the Essence..........................................................28
9.12 Additional Cooperation.......................................................28
9.13 Confidentiality..............................................................28
9.14 Counterparts.................................................................28
9.15 Survival.....................................................................28
9.16 Extensions for Holidays......................................................28
3
TABLE OF EXHIBITS
EXHIBIT INTRODUCED
IN SECTION
Exhibit A Description of the Land Recital A
Exhibit B Grant Deed 1.2(b)
Exhibit C Access Agreement 3.1(d)
Exhibit D Regulatory Closure Plan 3.2(b)
Exhibit E IDT Building Condition/Statement of General 3.2(b)
Understanding
Exhibit F Architectural and MEP Plans 3.2(b)
i
4
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
This Purchase and Sale Agreement and Joint Escrow Instructions (the
"Agreement"), dated as of December 15, 1998 (the "Effective Date"), is made
between Integrated Device Technology, Inc., a Delaware corporation ("Seller"),
and Cadence Design Systems, Inc., a Delaware corporation ("Buyer").
RECITALS
A. Seller is the owner of certain real property located at ▇▇▇▇ ▇▇▇▇▇
▇▇. in the City of San ▇▇▇▇ ("City"), County of Santa ▇▇▇▇▇ ("County"), State of
California ("State"), Assessor's Parcel No. ▇▇▇-▇▇-▇▇▇, which consists of
approximately 9.23 acres of land (the "Land") improved with a two-story building
containing approximately 136,602 square feet (the "Building"). The Land is more
particularly described in Exhibit A attached hereto. As used herein, references
to the "Property" refer to the Land and the Building, together with the
Improvements and the Appurtenances (as defined in Section 1.2 below).
B. The Property is currently used by Seller as a semiconductor chip
wafer manufacturing plant, and the Building contains equipment (including both
fixtures and personal property) consistent with this use.
C. Seller desires to sell and Buyer desires to purchase the Property
after all manufacturing and other equipment has been removed therefrom and
Seller has decommissioned the Property as a semiconductor chip wafer
manufacturing plant as described below. Seller and Buyer intend that the
Building at Closing shall consist of a "warm shell" suitable for use as a
flex-office building with base building utilities, electrical, sprinkler,
plumbing and other such systems intact.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, Seller and Buyer agree as follows:
1. PURCHASE AND SALE OF PROPERTY
1
5
1.1 Purchase and Sale. Upon the terms and subject to the conditions of
this Agreement, Seller shall sell to Buyer, and Buyer shall purchase from
Seller, the Property at the Closing (as defined in Section 7.2(a)).
1.2 Description of Property. The Property includes, in addition to the
Land and the Building as described in Recital A above, all of the following:
(a) Improvements. All improvements which are now located on the
Land other than fixtures in the Building which Seller is required to remove
therefrom as part of the Decommissioning (as defined in Section 3.2(a))
("Improvements"). Except as otherwise expressly stated, or as required by the
context, references to Improvements shall include the Building.
(b) Appurtenances. The interest of Seller in all rights,
privileges and easements appurtenant to the Land and Improvements, including all
minerals, oil, gas and other hydrocarbon substances on and under the Land, as
well as all development rights, air rights, water, water rights and water stock
relating to the Land and Improvements and any other easements, rights-of-way or
appurtenances used in connection with the beneficial use or enjoyment of the
Land and Improvements and, to the extent that they relate to the Land and
Improvements, all of Seller's rights, easements or other interests, if any, in
and to adjacent streets, alleys and rights-of-way, and water and sewer taps,
sanitary or storm sewer capacity or reservations and rights under utility
agreements with any applicable governmental or quasi-governmental entities or
agencies with respect to the providing of utility services to the Land
(excluding, however, termination of permits necessary for the operation of the
Improvements as a semiconductor chip wafer manufacturing plant) (collectively,
the "Appurtenances"). The Property shall be transferred to Buyer at the Closing
pursuant to a grant deed in the form of Exhibit B (the "Grant Deed").
2. PURCHASE PRICE
2.1 Amount. The purchase price for the Property (the "Purchase Price")
shall be Twenty-Seven Million Five Hundred Thousand Dollars ($27,500,000.00).
2.2 Deposit. Upon the full execution of this Agreement by the parties,
Buyer shall deliver to Chicago Title Insurance Company, Attn: ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Escrow Holder") cash in the amount of
Five Hundred Fifty Thousand Dollars ($550,000) (the "Initial Deposit"). In
addition, if Buyer's Initial Contingencies (as defined in Section 3.1) are
satisfied or waived during the Initial Contingency Period (as defined in Section
3.1), Buyer shall deliver to Escrow Holder an additional Nine Million
Seventy-Five Thousand Dollars ($9,075,000) (the "Additional Deposit") within two
(2) business days after the last of the Initial Contingencies has been waived or
satisfied. The Initial Deposit and Additional Deposit (when and if made),
together with all interest thereon, are collectively
2
6
called the "Deposit." The Deposit shall be deposited by the Escrow Holder in an
escrow account at a bank and invested in investments, approved by Buyer and
Seller, whose approval shall not be unreasonably withheld. The Deposit shall be
(1) paid to Seller at Closing as a portion of the Purchase Price, (2) paid to
Seller as liquidated damages pursuant to Section 4.5, (3) returned to Buyer in
the event of Seller's breach in accordance with Section 4.2(b), the failure of
any Initial Contingency in accordance with Section 3.1, the failure of the
Decommissioning Contingency in accordance with Section 3.2 or the failure of
Buyer's Closing Conditions in accordance with Section 4.1, or (4) returned to
Buyer in the event Buyer terminates this Agreement pursuant to Section 8.1.
3. BUYER'S CONTINGENCIES
3.1 Initial Contingencies. Buyer's obligation to purchase the Property
is expressly conditioned on the matters ("Initial Contingencies") described in
this Section 3.1. Buyer shall deliver written notice to Seller that it (a)
approves or waives the Initial Contingencies or (b) disapproves the Initial
Contingencies, on or before 5:00 p.m. (California time) on the day that is
thirty (30) days after the Effective Date (the "Initial Contingency Date"), with
the period from the Effective Date to the Initial Contingency Date being the
"Initial Contingency Period".
(a) Title Matters
(i) ALTA Survey and Preliminary Report
(A) Buyer has obtained a preliminary report for the
Land dated as of August 28, 1998 ("Preliminary Report") from the Escrow Holder.
Buyer shall obtain a survey of the Land meeting the requirements for issuance of
an American Land Title Association policy of insurance ("ALTA Survey") at
Buyer's sole cost and expense during the Initial Contingency Period. It shall be
an Initial Contingency that Buyer approve the condition of title as reflected by
the ALTA Survey and the Preliminary Report.
(B) By 5:00 p.m. (California time) on the day which
is twenty (20) days after the Effective Date, Buyer shall review and inform
Seller of its approval or disapproval of title by giving Seller notice ("Buyer's
Title Notice") of any objection to the Preliminary Report or the ALTA Survey
(the "Title Objections"). Buyer shall review title in its sole discretion.
Buyer's Title Notice also shall identify such endorsements ("Required
Endorsements") as Buyer will require to be included in the Title Policy (as
defined in Section 4.1(a)). If Buyer fails timely to deliver Buyer's Title
Notice, Buyer shall be deemed to have approved the condition of title.
(C) If Buyer timely delivers Buyer's Title Notice,
then, by 5:00 p.m. (California time) on the day which is five (5) days after
receipt of Buyer's Title Notice ("Seller's Notice Period"), Seller shall notify
Buyer in writing whether Seller will eliminate or
3
7
cure any Title Objections and/or whether Seller objects to any of Buyer's
Required Endorsements (the "Seller's Title Notice"). If Seller elects to
eliminate or cure one or more Title Objections, the elimination or curing by
Seller of the Title Objections shall be completed on or before the Closing. If
Seller elects to eliminate or cure a Title Objection but fails to do so by the
Closing, Buyer may pursue its remedies pursuant to Section 4.2 and the Deposit
and Additional Deposit shall be refunded.
(D) If Seller (1) does not deliver timely Seller's
Title Notice within Seller's Notice Period, or (2) notifies Buyer that Seller is
unable or unwilling to cure the Title Objections and/or that Seller objects to
any of the Required Endorsements, Buyer shall elect in its sole and absolute
discretion by 5:00 p.m. (California time) on the day which is five (5) days
after receipt of Seller's Title Notice (or, if Seller has failed to give
Seller's Title Notice, by 5:00 p.m. (California time) on the day five (5) days
after the expiration of Seller's Notice Period) either to waive such existing
Title Objections and/or Required Endorsements or deliver to Seller written
notice terminating this Agreement pursuant to Section 4.2(a). If Buyer fails to
give Seller notice of its election within the required period, Buyer shall be
deemed to have elected to waive such existing Title Objections and/or Required
Endorsements.
(ii) Additional Title Objections
(A) If, after issuance of Buyer's Title Notice,
Buyer receives notice from the Escrow Holder that it intends to revise the
Preliminary Report to include one or more additional exceptions to title, Buyer
may, within five (5) days of such notice, notify Seller ("Buyer's Amended Title
Notice") of the additional title exceptions to which it objects ("Additional
Title Objections"), provided, however, that (i) Buyer may object only if Buyer
reasonably determines that the exceptions materially and adversely affect the
use, value and enjoyment of the Property for Buyer's contemplated use and (ii)
the Additional Title Objections shall not include any matter approved by Buyer
pursuant to Section 3.1(a) (i). If Buyer fails to deliver timely notice within
the required period, Buyer shall be deemed to have approved the additional title
exceptions.
(B) Seller shall have the shorter of five (5) days
after Buyer's Amended Title Notice, or until two (2) days before the Closing
Date (as defined in Section 7.2(b)), within which to deliver to Buyer a notice
("Seller's Additional Title Notice") indicating whether Seller will eliminate or
cure such Additional Title Objections by the Closing. If Seller elects to
eliminate or cure an Additional Title Objection, the elimination or curing by
Seller of the Additional Title Objections shall be completed on or before the
Closing. If Seller elects to eliminate or cure a Title Objection but fails to do
so by the Closing, Buyer may pursue its remedies pursuant to Section 4.2. Seller
may cure Additional Title Objections relating to mechanic's liens arising from
the Decommissioning of the Property by posting a mechanic's lien release bond.
4
8
(C) If Seller (1) does not deliver such Seller's
Additional Title Notice within the required time, or (2) notifies Buyer that
Seller is unable or unwilling to cure such Additional Title Objections, Buyer
shall have the lesser of three (3) days or until one (1) day before the Closing
to elect to waive such Additional Title Objections or deliver to Seller written
notice terminating this Agreement pursuant to Section 4.2(a). If Buyer fails to
give Seller notice of its election within the time set forth in the previous
sentence, Buyer shall be deemed to have elected to waive such Additional Title
Objections.
(iii) Permitted Exceptions. The term "Permitted
Exceptions" shall mean (i) the exceptions to title set forth on the Preliminary
Report and approved or deemed approved by Buyer; (ii) all matters shown on the
Survey unless objected to in Buyer's Title Notice or Buyer's Amended Title
Notice and cured by Seller; (iii) subsequent or revised non-delinquent
installments of taxes and assessments referred to in the Preliminary Report; and
(iv) any matter that is caused by Buyer, its employees, agents, representatives
or affiliates (including, without limitation, any matter arising out of Buyer's
performance of improvements on the Property in accordance with Section 3.3). The
standard printed exceptions that are deleted in an extended coverage policy
shall be Permitted Exceptions solely for purposes of the Preliminary Report.
(iv) Monetary Liens. Notwithstanding the foregoing, Seller
shall eliminate any and all title exceptions consisting of mechanics liens,
judgment liens, delinquent tax liens and/or loans secured by mortgages, deeds of
trust, security agreements or fixture filings, other than those caused or
permitted by Buyer, its employees, agents, representatives or affiliates.
(b) Environmental Review. It shall be an Initial Contingency that
Buyer investigate and approve, in its sole and absolute discretion, the
environmental condition of the Property, including the presence of Hazardous
Material (as defined in Section 9.1(b)) on the Property, and the results of all
tests, inspections, investigations and studies regarding the Property that Buyer
may elect, in its sole discretion, to obtain.
(c) Physical Inspection. It shall be an Initial Contingency that
Buyer investigate and approve, in its sole and absolute discretion, the soils,
location, access and the structural and physical condition of the Property.
(d) Books and Records. Within five (5) days after the Effective
Date, Seller shall deliver to Buyer at the address listed in Section 9.8, or
make available at the Property for inspection and copying by Buyer or Buyer's
authorized agents, originals or true and correct copies of all surveys,
subdivision applications, agreements, contracts, property tax bills for the past
three years, plans, construction drawings, licenses, permits, insurance policies
and other documents relating to or concerning the Property (the "Books and
Records") in Seller's possession, and Seller shall use its best efforts to
deliver to Buyer or make available at the Property for inspection and copying by
Buyer or Buyer's authorized agents within ten (10) days after the Effective
Date, originals or true and correct copies of all Books and Records not
5
9
in Seller's possession but under Seller's control. The Books and Records shall
exclude all materials that are confidential communications between Seller and
its attorneys, the work product of Seller's attorneys, and Seller's internal
financial documents regarding the Property. Seller also shall make available for
interview(s) by Buyer and Buyer's authorized agents those personnel of Seller
who are responsible for the maintenance and operation of the Property,
including, without limitation, compliance with Environmental Laws (as defined in
Section 9.1(a)) affecting the Property. It shall be an Initial Contingency that
Buyer review and approve, in its sole and absolute discretion, the Books and
Records and the data gained through interviews with Seller's personnel. Access
to, and review and use of, the Books and Records and data gained through
interviews shall be subject to the terms and conditions of that certain Access
and Confidentiality Agreement dated as of November 25, 1998 between Seller and
Buyer (the "Access Agreement"), a copy of which is attached hereto as Exhibit C.
(e) Governmental Requirements. It shall be an Initial Contingency
that Buyer review and approve, in its sole and absolute discretion, all
operative or proposed governmental laws and regulations to which the Property
is, or may be, subject and that Buyer obtain or approve such permits,
entitlements, rezoning, agreements and assurances from the City as Buyer, in its
sole discretion, may require.
(f) Economic Analysis. It shall be an Initial Contingency that
Buyer review and approve, in its sole and absolute discretion, all economic,
financial and accounting matters relating to or affecting the Property or its
value, including without limitation the costs of converting the Property for use
as an office building.
(g) Disapproval of Initial Contingencies. If Buyer disapproves
any Initial Contingency, or if Buyer fails to deposit timely the Additional
Deposit in accordance with Section 2.2 despite having duly approved or waived
the Initial Contingencies, this Agreement will automatically terminate, and
thereafter the parties shall have no further obligation or liability under this
Agreement other than Buyer's indemnity obligation contained in Section 5.4, the
confidentiality provisions of Section 9.13, Buyer's obligations under the Access
Agreement, and as otherwise provided in this Section 3.1(g). Subject to Buyer's
remedies for Seller's default under Section 4.2, the Deposit shall be returned
to Buyer. Any cancellation fee or other costs of the Escrow Holder shall be
borne equally by Seller and Buyer and each party shall pay its own expenses.
3.2 Decommissioning Contingency. Buyer's obligation to purchase the
Property is further expressly conditioned on the matters described in this
Section 3.2 (collectively, "Decommissioning Contingency"). Buyer shall deliver
written notice to Seller that it (a) approves or waives the Decommissioning
Contingency or (b) disapproves the Decommissioning Contingency (which
disapproval may be given only in accordance with Section 3.2(i)) on or before
5:00 p.m. (California time) on the date which is thirty (30) days after receipt
of Seller's Decommission Notice (as defined in Section 3.2(g)) (the
6
10
"Decommissioning Contingency Date"), with the period from the date on which
Buyer delivers the Additional Deposit to Escrow Holder to the Decommissioning
Contingency Date being the "Decommissioning Contingency Period".
(a) Decommissioning of Property. Seller shall decommission the
Property as a semiconductor chip wafer manufacturing facility ("Decommission" or
"Decommissioning") at its sole cost and expense, and Seller shall use all
reasonable efforts to complete the Decommissioning on or before April 12, 1998
(the "Decommissioning Completion Deadline"). The Decommissioning Completion
Deadline may be extended with Buyer's prior written approval, which approval
shall not be unreasonably withheld. The purpose of the Decommissioning shall be
to remove from the Property all manufacturing and other equipment associated
with the Property's use as a semiconductor chip wafer manufacturing facility, to
remove or remediate all Hazardous Material associated therewith in accordance
with applicable Environmental Laws, and to convert the Building into a "warm
shell" consisting of core, shell and base building utilities (including without
limitation the electrical, sprinkler, plumbing, mechanical and other base
building systems), all as more particularly set forth in the Closure Plan as
defined in Section 3.2(b), and the scope of work set forth in the Closure Plan
shall take precedence over the generalized description of the Decommissioning
set forth in this Section 3.2(a).
(b) Closure Plan. Seller has prepared and Buyer has approved the
Regulatory Closure Plan that is attached as Exhibit D to this Agreement. Buyer
and Seller jointly have prepared the document entitled IDT Building
Condition/Statement of General Understanding that is attached as Exhibit E to
this Agreement. Buyer and Seller also have jointly marked copies of the
Building's Architectural and MEP Plans to further identify changes to the
Building that are part of the Decommissioning, and these marked plans consisting
of six separate sheets executed on behalf of Buyer and Seller on December 4,
1998 are attached as Exhibit F to this Agreement. The items attached to this
Agreement as Exhibit D, Exhibit E and Exhibit F are collectively referred to
herein as the "Closure Plan." The Closure Plan encompasses activities required
by certain Environmental Laws applicable to the decommissioning of a
semiconductor chip wafer fabrication facility (the "Mandated Activities"), which
will be subject to approval by governmental agencies and authorities that are
responsible for assuring compliance with such Environmental Laws (the
"Responsible Agencies"). Additionally, the Closure Plan encompasses activities
beyond the Mandated Activities which have been agreed upon by Seller and Buyer
(the "Additional Activities"). From and after the Effective Date, no changes may
be made to the Closure Plan except for: (i) modifications to the Mandated
Activities which are required by the Responsible Agencies and are either (A)
immaterial, in that such changes pose no detriment to Buyer, or (B) have the
effect of enlarging, rather than diminishing, Seller's scope of work in
connection with the Decommissioning; and (ii) modifications to the Additional
Activities which are approved by Buyer in the exercise of Buyer's commercially
reasonable judgment. Buyer shall deliver to Seller written notice approving or
disapproving of any modification to the Closure Plan
7
11
described in clause (ii) above within five (5) business days after Seller
delivers to Buyer a written request describing in reasonable detail the nature
of such modification. Buyer's failure to deliver to Seller written notice
disapproving such modification within such five (5) business day period shall be
conclusively deemed Buyer's approval thereof. In the event of any dispute
concerning or relating to whether or not Buyer's disapproval of any such
modification is reasonable, such dispute shall be resolved by binding
arbitration in accordance with the provisions of Section 3.4. References
elsewhere in this Agreement to the Closure Plan shall mean the Closure Plan and
such modifications thereto as are authorized by this Section 3.2(b).
(c) Performance of Decommissioning. In all events, the scope of
work for the Decommissioning shall include, without limitation, the remediation
of any Hazardous Material and corrections of any violations and threatened
violations of any Environmental Laws relating to the Property that may be
identified prior to or discovered during the Decommissioning, whether
preexisting or caused by the Decommissioning or otherwise occurring after the
Initial Contingency Period and prior to the Closing, excluding only such
Hazardous Material and violations of Environmental Laws that are demonstrated to
Buyer's reasonable satisfaction to have been present on or affecting the
Property prior to Seller's acquisition of the Property. Buyer hereby agrees that
all Hazardous Material and violations of Environmental Laws described in that
certain Environmental Property Assessment, prepared by ▇▇▇▇▇▇▇▇ Environmental,
dated March 26, 1990, were present on or affected the Property prior to Seller's
acquisition of the Property.
(d) Evidence of Completion. Subject to the provisions of Section
3.2(i), Seller's obligation to complete the Decommissioning shall be satisfied
when Seller has performed the scope of work set forth in the Closure Plan in all
material respects, and has delivered to Buyer the following documents evidencing
satisfactory closure of Seller's semiconductor chip wafer manufacturing
facility: (i) copies of each of Seller's permit submittals and notifications to
the San ▇▇▇▇ Fire Department, the Santa ▇▇▇▇▇ County Environmental Resources
Agency Department of Environmental Health ("DEH"), the California Department of
Toxic Substances Control, the Environmental Protection Agency, the Bay Area Air
Quality Management District, and the City of San ▇▇▇▇ Department of Water
Pollution Control; (ii) the written certification by Seller's consulting
Professional Engineer, PES Environmental, Inc. ("PES") to the San ▇▇▇▇ Fire
Department that Seller's semiconductor chip wafer manufacturing facility has
been closed in compliance with the Regulatory Closure Plan; (iii) a report
issued by PES containing all data obtained relative to all soil and groundwater
sampling of the Property conducted by Seller, PES or any other consultant on
behalf of Seller; (iv) the San ▇▇▇▇ Fire Department's written acknowledgment
that Seller's semiconductor chip wafer manufacturing facility has been closed in
accordance with the Regulatory Closure Plan, together with any related report
issued by the San ▇▇▇▇ Fire Department; and (v) the California Department of
Toxic Substances Control's and/or DEH's written acknowledgment that all
permitted units over which it has jurisdiction have been closed in accordance
with the Regulatory Closure Plan (collectively, the "Responsible Agencies'
Approvals"). Notwithstanding the foregoing, Seller
8
12
shall not be obligated to deliver the acknowledgments described in Sections
3.2(d)(iv) and 3.2(d)(v) and such acknowledgments shall be excluded from the
Responsible Agencies' Approvals if it is not the standard practice of the San
▇▇▇▇ Fire Department, the California Department of Toxic Substances Control or
DEH, respectively, at the time of Seller's request to issue such documentation,
and under such circumstances Seller's obligation to complete the Decommissioning
shall be satisfied if Seller has performed the scope of work set forth in the
Closure Plan in all material respects and has delivered to Buyer the documents
described in Sections 3.2(d)(i)-(iii),
(e) Compliance With Laws. In completing the Decommissioning,
Seller shall comply in all material respects with all applicable federal, state
and local laws (whether under common law, statute, rule, ordinance, agreement,
regulation or otherwise), including without limitation all Environmental Laws.
(f) Buyer's Observation. Seller and Buyer acknowledge that it is
Buyer's intention to cause Buyer's consultant, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, Inc., to
prepare a report upon delivery of the Decommission Notice as defined in Section
3.2 (g) assessing the Decommissioning work, including without limitation the
site conditions encountered and the remediation measures implemented in the
course thereof. Seller shall keep Buyer informed of the work schedule for the
Decommissioning, and shall permit Buyer's designated representatives to observe
the Decommissioning work (provided that Buyer's representatives comply with
Seller's construction safety rules and regulations and do not unreasonably
interfere with the Decommissioning work) and to confer with any contractors
performing the Decommissioning work, subject to Buyer's indemnity as provided in
Section 5.4. In addition, Buyer at its option shall be entitled to have its
designated representatives make test borings on the Property during the
Decommissioning Contingency Period subject to compliance with Seller's
construction safety rules, Buyer's indemnity as provided in Section 5.4, and the
Access Agreement, and provided that such representatives do not unreasonably
interfere with the Decommissioning work.
(g) Seller's Notice of Completion. On or before the
Decommissioning Completion Deadline, Seller shall deliver notice to Buyer that
the Decommissioning has been completed as described in Section 3.2(a) (the
"Decommission Notice"). The Decommission Notice shall be accompanied by the
Responsible Agencies' Approvals.
(h) Buyer's Additional Environmental Due Diligence. Between the
date of Seller's delivery of the Decommission Notice and the Decommissioning
Contingency Date, Buyer may inspect the Property to confirm that Seller has
performed the work set forth in the Closure Plan in all material respects as
provided herein, and may in Buyer's sole discretion conduct an additional
investigation of the environmental condition of the Property. It is the intent
of Buyer and Seller that Buyer have sufficient time during this period to
complete a Phase II environmental survey of the Property and other appropriate
investigations to (i) verify
9
13
remediation of any Hazardous Material conditions arising from or discovered
during the Decommissioning, and (ii) to confirm that there are no Hazardous
Material conditions on or otherwise affecting the Property that were not known
to Buyer at the conclusion of the Initial Contingency Period, other than
Hazardous Material conditions that Buyer or its consultants discovered, or in
the exercise of reasonable diligence should have discovered, during the Initial
Contingency Period (the "Additional Environmental Investigation"). Buyer agrees
to diligently pursue such Additional Environmental Investigation. However, if
for reasons outside Buyer's control Buyer is unable to complete such Additional
Environmental Investigation within thirty (30) days of delivery of Seller's
Decommission Notice, the Decommissioning Contingency Date shall be extended for
such additional time (but in no event more than an additional thirty (30) days)
as is reasonably required to permit completion of the Additional Environmental
Investigation in the exercise of due diligence.
(i) Approval of Decommissioning Contingency. Buyer shall approve
or disapprove the Decommissioning Contingency in writing during the
Decommissioning Contingency Period. Buyer's failure to give notice of approval
or disapproval of the Decommissioning Contingency by the end of the
Decommissioning Contingency Period shall be conclusively deemed to be Buyer's
approval of the Decommission Contingency. Buyer may disapprove the
Decommissioning Contingency only if the Decommissioning has not been completed
in accordance with the Closure Plan in all material respects, or if Buyer
reasonably disapproves of any Hazardous Material condition on or affecting the
Property that was not known to or reasonably discoverable by Buyer or its
consultants during the Initial Contingency Period.
If Buyer gives timely notice disapproving the Decommissioning
Contingency ("Decommissioning Disapproval Notice"), Buyer shall specify in the
Decommissioning Disapproval Notice in reasonable detail the reasons and bases
for such disapproval (including, without limitation, the evidence that the
Decommissioning work has not been properly completed in accordance with this
Agreement) and all corrective or additional work Buyer reasonably requires for
satisfaction of the Decommissioning Contingency. Within five (5) business days
after receipt of the Decommissioning Disapproval Notice, Seller shall, by
written notice to Buyer, either: (i) undertake to complete such corrective or
additional work within a reasonable period of time (but in no event to exceed
eighteen (18) months from the date of Seller's receipt of the Decommissioning
Disapproval Notice); or (ii) dispute the corrective or additional work specified
in the Decommissioning Disapproval Notice on the grounds that (A) it is outside
the scope of work of the Decommissioning, or (B) it pertains to a Hazardous
Material condition on or affecting the Property (1) which was known to or
reasonably discoverable by Buyer or its consultants during the Initial
Contingency Period, or (2) as to which Buyer has no reasonable basis for
objecting. If Seller delivers a notice under clause (i) of the preceding
sentence, the Closing Date shall be extended until that date which is seven (7)
days after Seller demonstrates, to Buyer's reasonable satisfaction, that Seller
has completed in all material respects all corrective or additional work
required by Buyer's
10
14
Decommissioning Disapproval Notice; and if Seller delivers a
notice under clause (ii) of the preceding sentence, the dispute shall be
resolved in accordance with the dispute resolution provisions in Section 3.4 of
this Agreement.
In no event shall Seller be in default of or in breach of this Agreement
for failure to complete the Decommissioning work unless and until either Seller
fails to complete in all material respects, within the eighteen (18) month
maximum period described above, the corrective or additional work that Seller
has undertaken to perform in accordance with clause (i) above, or an arbitrator
engaged to resolve a dispute between the parties under Section 3.4 has
determined that Seller must perform additional work and Seller has failed to
perform such work in all material respects within the later of (i) eighteen (18)
months after the date of Seller's receipt of the Decommissioning Disapproval
Notice or (ii) sixty (60) days after the arbitrator has issued such
determination.
3.3 Buyer Improvements During Decommissioning Contingency Period. Seller
anticipates that it will vacate between 40,000 and 60,000 square feet of open
office area located in that portion of the Building classified for occupancy
purposes as "B-2" under the Uniform Building Code (the "B-2 Space") before
December 31, 1998. In the event that the B-2 Space is vacated in part or in
whole during the Decommissioning Contingency Period, Buyer and Buyer's
representatives, consultants and contractors shall have access to such vacated
B-2 Space for the purpose of performing such improvements therein as may be
desirable for Buyer's intended use of the Property; provided, however, that as a
condition precedent to the exercise of Buyer's rights under this Section 3.3,
(a) Buyer shall deliver to Seller and Seller shall approve in writing (such
approval not to be unreasonably withheld or delayed) a written description of
the improvements to be performed; and (b) Buyer shall defend, indemnify and hold
Seller harmless from all claims (including claims of lien for work or labor
performed or materials or supplies furnished at Buyer's direction), demands,
liabilities, damages and expenses, including Seller's reasonable attorneys'
fees, costs and expenses, arising out of Buyer's entry onto and/or activities
in, on or about the Property as permitted under this Section 3.3. Buyer's work
under this Section 3.3 shall not unreasonably interfere with or disturb Seller's
employees in the Building. Buyer shall not be entitled to any compensation for
the value of any improvements made by Buyer in accordance with this Section 3.3,
and all such improvements shall become the property of Seller, in the event the
transaction described in this Agreement is not consummated.
3.4 Dispute Resolution. In the event of a controversy, dispute or claim
arising out of, from or relating to Seller's obligation to perform the work set
forth in the Closure Plan or Buyer's approval rights thereof pursuant to Section
3.2(i) (collectively, a "Dispute"), the parties' appointed representatives (the
"Designated Representatives") shall meet as often as reasonably possible (either
in person or by telephone) during the five (5) day period commencing on the date
that either party delivers to the other written notice of a Dispute to attempt
to resolve the Dispute in good faith. The Designated Representatives shall make
every
11
15
effort jointly to reach a resolution of the Dispute. Seller's Designated
Representative shall be ▇▇▇▇ ▇. ▇▇▇▇▇, and Buyer's Designated Representative
shall be ▇▇▇▇ ▇▇▇▇▇. Either party may change its Designated Representative by
delivering to the other party written notice of the new Designated
Representative. If the Designated Representatives are unable to resolve a
Dispute within that five (5) day period, either party may seek to resolve the
Dispute in accordance with Section 3.4(a) of this Agreement.
(a) Seller and Buyer agree that any Dispute which cannot be
resolved pursuant to the first paragraph of this Section 3.4 above shall be
settled at the request of any party to this Agreement by final and binding
arbitration conducted in the City and County of San Francisco, California,
administered by and in accordance with the Comprehensive Arbitration Rules and
Procedures of J.A.M.S./Endispute, or, if such rules no longer exist, the then
existing rules of practice and procedure of J.A.M.S./Endispute (both sets of
rules are collectively referred to as the "Rules of J.A.M.S./Endispute"), and
judgment upon any award rendered by the arbitrator may be entered by any state
or federal court having jurisdiction thereof. The single arbitrator shall be a
retired California or federal judge selected in accordance with the Rules of
J.A.M.S./Endispute. The arbitrator and not a jury will decide the Dispute. The
arbitrator shall be directed: (i) to require all testimony to be transcribed;
(ii) to require any award or decision to be accompanied by findings of fact and
a statement of reasons for such award or decision; (iii) not to award any
remedies available in court for breach of contract actions (including, without
limitation, damages) other than remedies (including damages) expressly set forth
in this Agreement and not vary the provisions of this Agreement; and (iv) to
allow reasonable discovery.
(b) The arbitrator shall determine the prevailing party and the
prevailing party of any Dispute submitted under this Section 3.4 shall be
entitled to recover out-of-pocket costs reasonably expended in the arbitration
proceeding (including the fees of J.A.M.S./Endispute) as well as in any
subsequent proceeding required to enforce the arbitration award, but each party
shall bear its own attorneys' fees.
(c) Except as otherwise required by law, the parties agree that
the arbitration procedure will be confidential, all conduct, statements,
promises, offers, views and opinions, oral or written, made during the
arbitration by any party or a party's agent, employee or attorney will remain
confidential and, where appropriate will be considered work product and
privileged, and the existence and the results of the arbitration will be
maintained by the parties and their respective agents, employees and attorneys
as confidential at all times.
(d) In the event that J.A.M.S./Endispute is no longer in
existence at the time that arbitration is requested, the Dispute shall be
submitted to arbitration in accordance with the rules and procedures of the
American Arbitration Association.
4. CONDITIONS TO CLOSING
12
16
4.1 Buyer's Closing Conditions. Buyer's obligation to purchase the
Property is expressly conditioned on the satisfaction or written waiver of each
of the conditions precedent set forth in this Section 4.1 ("Buyer's Closing
Conditions"). Buyer's Closing Conditions are solely for Buyer's benefit and any
and all of Buyer's Closing Conditions may be waived in writing by Buyer in whole
or in part without prior notice. After the Closing, any Buyer's Closing
Condition that has not been satisfied shall be treated as having been waived in
writing. In the event that one or more of Buyer's Closing Conditions have not
been satisfied or waived in writing by Buyer prior to the scheduled Closing Date
as described in Section 7.2(b), upon Seller's delivery to Buyer of written
notice that Seller shall cause such Buyer's Closing Condition(s) to be
satisfied, the Closing Date shall be extended for such additional time (but not
to exceed ninety (90) days) as is reasonably required to permit Seller to
satisfy such Buyer's Closing Condition(s) in the exercise of due diligence.
(a) Title. Title to the Property shall be conveyed to Buyer by
Grant Deed subject only to the Permitted Exceptions. The Escrow Holder shall be
irrevocably and unconditionally committed to issue to Buyer an ALTA Extended
Coverage Owner's Policy (B-1970 form) insuring title to the Property in an
amount not exceeding the Purchase Price, subject only to the Permitted
Exceptions and the printed exclusions contained in such policy, together with
the Required Endorsements (the "Title Policy"). Except as provided in Section
5.2, indemnification of the Escrow Holder to induce it to insure any otherwise
unpermitted exception to title shall not be allowed except with the prior
written consent of Buyer after full disclosure to Buyer of the nature and
substance of such exception and indemnity, which consent shall not be
unreasonably withheld or delayed by Buyer for exceptions not material to
marketable title to the Property.
(b) Delivery of Closing Documents. Seller shall deliver through
Escrow the documents specified in Section 7.3.
(c) Representations and Warranties. Seller's representations and
warranties contained in Section 6.1 shall be true and correct in all material
respects when made and as of the Closing Date.
(d) Performance of Covenants. Seller shall have performed the
material covenants of Seller under this Agreement to be performed by Seller
before Closing.
(e) Adverse Actions. There shall exist no actions, suits,
arbitrations, claims, attachments, proceedings, assignments for the benefit of
creditors, insolvency, bankruptcy, reorganization or other proceedings, pending
or threatened against Seller or respecting the Property that would materially
and adversely affect Seller's ability to perform its obligations under this
Agreement or Buyer's title to the Property and there shall exist no pending or
threatened action, suit or proceeding with respect to Seller before or by any
court or administrative agency which seeks to restrain or prohibit, or to obtain
damages or a discovery
13
17
order with respect to, this Agreement or the consummation of the transactions
contemplated hereby.
4.2 Buyer's Remedies
(a) Termination for Failure of Condition. If any of Buyer's
Closing Conditions is not satisfied, Buyer shall have the right, at its sole
election, either to waive the condition in question and proceed with the
purchase of the Property pursuant to all of the other terms of this Agreement,
reserving all of its other rights and remedies available to it under this
Agreement by reason of such failure of condition, or, in the alternative, to
terminate this Agreement upon giving notice of termination to Seller. Upon
termination under this Section 4.2(a), Seller and Buyer agree that Buyer shall
be entitled to immediate refund of the Deposit without offset for any charges or
claims, and each party shall bear its own expenses incurred in connection with
this Agreement.
(b) Termination Due to Seller's Breach. In the event of a
material default by Seller under any of its covenants, representations,
warranties or other obligations set forth in this Agreement, and if Seller does
not cure such default within five (5) days after notice is given by Buyer to
Seller specifying the basis for claiming the default and Buyer's intention to
invoke the provisions of this Section 4.2(b) (or within such other time period
as may be specified in this Agreement including, without limitation, Section
3.2(i)), Buyer may elect (i) nevertheless to proceed with the purchase of the
Property (it being expressly agreed that Buyer shall be entitled to specific
performance under this Agreement) or (ii) to terminate this Agreement by written
notice to Seller delivered on or before the later of one (1) business day before
the Closing Date or expiration of the applicable period to cure the default, and
upon such termination, Buyer shall be entitled to immediate refund of the
Deposit without offset for any charges or claims and be relieved of all further
obligations hereunder. If Buyer proceeds under clause (i) above, Buyer shall
retain the right to collect damages directly resulting from Seller's breach
including, without limitation, damages based upon the difference between the
value of the Property on the Closing Date in the absence of any breach by Seller
and the Purchase Price. However, Buyer shall not be entitled to recover (and
Buyer hereby waives) any consequential, indirect or special damages resulting
from Buyer's breach of this Agreement including, without limitation, lost
profits.
4.3 Seller's Closing Conditions. Seller's obligation to sell the
Property is expressly conditioned upon the satisfaction or written waiver by the
time periods described below of each of the conditions precedent set forth in
this Section 4.3 ("Seller's Closing Conditions"). Seller's Closing Conditions
are solely for Seller's benefit and any or all of Seller's Closing Conditions
may be waived in writing by Seller in whole or in part without prior notice.
(a) Waiver of Initial Contingencies. On or before 5:00 p.m.
Pacific Time on the Initial Contingency Date, Buyer shall have delivered to
Seller written notice approving or
14
18
waiving all of the Initial Contingencies, and within two (2) business days
thereafter, Buyer shall have deposited the Additional Deposit in Escrow.
(b) Waiver of Decommissioning Contingency. Buyer shall have
delivered to Seller written notice approving or waiving the Decommissioning
Contingency before 5:00 p.m. Pacific Time on the last day of the Decommissioning
Contingency Period (as it may be extended).
(c) Delivery of Closing Documents and Funds. Buyer shall deliver
through Escrow the documents and funds specified in Section 7.4.
(d) Representations and Warranties. Buyer's representations and
warranties contained in Section 6.5 shall be true and correct when made and as
of the Closing Date.
(e) Performance of Covenants. Buyer shall have performed the
material covenants of Buyer under this Agreement.
4.4 Seller's Remedies
(a) Termination for Failure of Condition. If any of Seller's
Closing Conditions is not satisfied, Seller shall have the right, at its sole
election, either to waive the condition in question and proceed with the sale of
the Property pursuant to all of the other terms of this Agreement, reserving all
of its other rights and remedies available to it under this Agreement or
otherwise at law or in equity by reason of such failure of condition, or, in the
alternative, to terminate this Agreement upon giving notice of termination to
Buyer.
(b) Termination Due to Buyer's Breach. Notwithstanding anything
to the contrary elsewhere in this Agreement, in the event of a default by Buyer
of any of its covenants, representations, warranties or other obligations set
forth in this Agreement, and if Buyer does not cure such default within five (5)
days after notice is given by Seller to Buyer specifying the basis for claiming
the default and Seller's intention to invoke the provisions of Section 4.5,
Seller may elect to terminate this Agreement by written notice to Buyer
delivered on or before the later of Closing Date or expiration of the period
given under this Section 4.4(b) to cure the default, in which case Seller's
damages and remedies shall be governed by Section 4.5.
4.5 Liquidated Damages. IF THE CLOSING FAILS TO OCCUR BY REASON OF
DEFAULT OF BUYER UNDER THE TERMS OF THIS AGREEMENT, BUYER SHALL BE RESPONSIBLE
FOR ALL CANCELLATION CHARGES REQUIRED TO BE PAID TO ESCROW HOLDER AND ANY ESCROW
AND TITLE CHARGES. IN ADDITION, THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES SHALL TERMINATE AND THE DEPOSIT SHALL BE IMMEDIATELY DELIVERED BY
15
19
ESCROW HOLDER TO SELLER ON SELLER'S REQUEST WITHOUT ANY FURTHER INSTRUCTIONS
FROM BUYER AND DESPITE ANY CONTRARY INSTRUCTIONS FROM BUYER. THE DEPOSIT SHALL
BE DEEMED LIQUIDATED DAMAGES FOR BUYER'S NONPERFORMANCE AS SELLER'S SOLE AND
EXCLUSIVE REMEDY AGAINST BUYER (INCLUDING, WITHOUT LIMITATION, SELLER'S RIGHTS
TO SEEK SPECIFIC PERFORMANCE OF THIS AGREEMENT AND TO RECEIVE DAMAGES) FOR
BUYER'S FAILURE TO PURCHASE THE PROPERTY, WHICH SUMS SHALL BE PRESUMED TO BE A
REASONABLE ESTIMATE OF THE AMOUNT OF ACTUAL DAMAGES SUSTAINED BY SELLER BY
REASON OF BUYER'S BREACH OF ITS OBLIGATION TO PURCHASE THE PROPERTY. FROM THE
NATURE OF THIS TRANSACTION, IT IS IMPRACTICABLE AND EXTREMELY DIFFICULT TO FIX
THE ACTUAL DAMAGES THAT SELLER WOULD SUSTAIN SHOULD BUYER BREACH SUCH
OBLIGATION. THE IMPRACTICABILITY AND DIFFICULTY OF FIXING ACTUAL DAMAGES IS
CAUSED BY, WITHOUT LIMITATION, THE FACT THAT THE PROPERTY IS UNIQUE. GIVEN THE
FOREGOING CONSIDERATION, AMONG OTHERS, BUYER AND SELLER AGREE THAT LIQUIDATED
DAMAGES ARE PARTICULARLY APPROPRIATE FOR THIS TRANSACTION AND AGREE THAT SAID
LIQUIDATED DAMAGES SHALL BE PAID IN THE EVENT OF BREACH BY BUYER OF ITS
OBLIGATION TO PURCHASE THE PROPERTY, NOTWITHSTANDING ANY WORDS OR
CHARACTERIZATIONS PREVIOUSLY USED OR HEREIN CONTAINED IMPLYING ANY CONTRARY
INTENT. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A
FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275
OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO
CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. NOTHING HEREIN SHALL,
HOWEVER, BE DEEMED TO LIMIT BUYER'S LIABILITY TO SELLER FOR DAMAGES OR
INJUNCTIVE RELIEF FOR BREACH OF BUYER'S INDEMNITY OBLIGATIONS UNDER SECTION 5.5
OR UNDER THE ACCESS AGREEMENT.
Seller's initials: /s/ AFK Buyer's initials: /s/ RLMK
------- --------
5. SELLER'S COVENANTS AND AGREEMENTS
5.1 Other Contracts. During the term of this Agreement, Seller shall
obtain Buyer's prior written consent before entering (or causing to be entered)
into, amending, modifying, extending or terminating (except as provided in
Section 5.3) any contracts, leases, agreements or understandings for or
pertaining to the Property or any portion thereof, which consent shall not be
unreasonably withheld or delayed; provided, however, that this Section 5.1 shall
not apply to any contracts or agreements entered into with respect to
performance of the Decommissioning work.
16
20
5.2 Mechanic's Liens. On or before the Closing, Seller shall (i) pay for
all materials, supplies and work provided or ordered for the Property by Seller
or for which a labor, materialman's or mechanic's lien may be claimed under
applicable law with respect to work contracted for by Seller and (ii) if
required by the Escrow Holder, provide the Escrow Holder with such
indemnifications or security as it may require to insure title to the Property
at the Closing without exception for any unrecorded labor, materialman's or
mechanic's claim of lien other than those created by, through or under Buyer.
5.3 Existing Service Contracts. Effective as of the Closing Date, Seller
shall terminate or cause to be terminated any and all contracts for the
management, operation, repair, maintenance and security of the Property.
5.4 Access to Property. Buyer and Buyer's representatives, agents and
designees shall have the right at all reasonable times to enter upon the
Property, at Buyer's own cost, for any purpose in connection with its proposed
purchase or development of the Property, including, without limitation, the
right to make any inspections, examinations, tests, analyses, studies, surveys,
evaluations or any other investigations of the Property as Buyer may elect, all
on the terms of, and subject to the conditions set forth in, the Access
Agreement and, to the extent applicable, Section 3.3 of this Agreement. The
exercise by Buyer of any of the preceding or any other act by Buyer shall not
negate any representation, warranty or covenant of Seller or modify any of
Buyer's rights or Seller's obligations in the event of any breach by Seller of
any of its representations, warranties or covenants under this Agreement. Buyer
shall defend, indemnify and hold Seller harmless from all claims (including
claims of lien for work or labor performed or materials or supplies furnished),
demands, liabilities, damages and expenses, including Seller's reasonable
attorneys' fees, costs and expenses, arising out of Buyer's entry onto and/or
activities in, on or about the Property arising in connection with such entry as
permitted under this Section 5.4.
6. REPRESENTATIONS AND WARRANTIES
6.1 Seller's Representations and Warranties. Seller hereby warrants and
represents as of the date hereof and as of the Closing that:
(a) Due Incorporation. Seller is duly organized, validly existing
and in good standing under the laws of the State of Delaware, and is in good
standing and qualified to do business in the State of California.
(b) Authority of Seller. This Agreement and the performance of
Seller's obligations hereunder and all the documents executed by Seller which
are to be delivered to Buyer at the Closing are, or on the Closing Date will be,
duly authorized, executed and delivered by Seller and are, or at the Closing
Date will be, legal, valid and binding obligations of Seller, and do not, and on
the Closing Date will not, violate any provisions of any
17
21
agreement or judicial order to which Seller is a party or to which Seller or the
Property is subject. No consent of any partner, shareholder, creditor, investor,
judicial or administrative body, government agency or other party is required
for Seller to enter into and/or to perform Seller's obligations under this
Agreement, except as has already been obtained.
(c) Condition of Property. To Seller's knowledge, there are now,
and at the Closing Date there will be, no structural or mechanical defects of
the Property, all systems and facilities in or serving the Property are in good
operating condition and repair and in material compliance with all applicable
laws and regulations and there are no other material physical defects or unusual
soil conditions on the Property.
(d) Compliance with Laws. Seller has received no written notice
from any governmental agency or private person that the condition, use or
operation of the Property violates any applicable laws or regulations. To
Seller's knowledge, the condition, use and operation of the Property now do not,
and at the Closing Date will not, violate any applicable laws, regulations and
ordinances in any material respect.
(e) Governmental Proceedings. Seller has received no notice of
any condemnation, environmental, zoning or other land use regulation
proceedings, either instituted or planned to be instituted, which could
detrimentally and materially affect the use of the Property or the appraised
value of the Property, nor any notice of any special assessment proceedings
affecting the Property.
(f) Books and Records, Contracts and Other Documents. All Books
and Records and other contracts or documents authored by Seller and delivered or
made available to Buyer are, and at the Closing Date will be, true and correct
copies. To Seller's knowledge, all Books and Records and other contracts or
documents authored by third parties and delivered or made available to Buyer
are, and at the Closing Date will be, true and correct copies.
(g) Contracts and Other Agreements. Seller has no agreement with,
and has not granted any rights to nor assumed any obligations for the benefit
of, any other party which in any way would, or will, burden or otherwise affect
Buyer or all or part of the Property.
(h) Litigation. To Seller's knowledge, there are no pending or
threatened actions, inquiries, suits, arbitrations, claims or proceedings, at
law or in equity that arise out of the ownership of the Property or that might
detrimentally and materially affect the use or operation of the Property for its
intended purpose or the appraised value of the Property or adversely affect the
ability of Seller to perform its obligations under this Agreement. No
attachments, execution proceedings, assignments for benefit of creditors,
insolvency, bankruptcy, reorganization or other proceedings are pending or, to
Seller's knowledge, threatened against Seller nor are any of such proceedings
contemplated by Seller.
18
22
(i) Other Contracts to Convey Property. There are no rights to
purchase, lease or otherwise acquire any right, title or interest in or to the
Property held by any person other than Buyer and Seller has not committed nor
obligated itself in any manner whatsoever to sell the Property to any party
other than Buyer, and except as set forth in the Preliminary Report, Seller has
not hypothecated or assigned any interest in the Property in any manner.
(j) Hazardous Material. Other than as may be disclosed in the
Books and Records, all of Seller's operations or activities upon, or use of the
Property, or any portion thereof, are in all material respects in compliance
with the Environmental Laws, and Seller has not engaged in or permitted any
release, dumping, discharge, disposal, spillage or leakage (whether legal or
illegal, accidental or intentional) of Hazardous Material in any material
quantity at, on, in or about the Property, or any portion thereof.
(k) Property Tax Assessment. Other than as set forth in the
preliminary Report and the amounts disclosed by the tax bills delivered to Buyer
by Seller, no other real property taxes have been or, to Seller's knowledge,
will be assessed against the Property for the current year. With the exception
of (i) charges and assessments disclosed in the public records and (ii) charges
incurred by Seller in connection with the Decommissioning of the Property, there
are not any special assessments or charges which have been levied against the
Property or, to Seller's knowledge, which will result from work, activities or
improvements done to the Property by Seller. Seller has received no notice from
any governmental agency of any planned or completed public improvements which
will result in any charge being levied against or in the creation of any lien
upon the Property or any portion thereof. Notwithstanding any other provision of
this Agreement to the contrary, if Buyer shall become liable after the Closing
for payment of any property taxes assessed against the Property for any period
of time prior to Closing Date, Seller shall immediately pay to Buyer on demand
an amount equal to such tax assessment in accordance with Section 7.8(b).
(l) Foreign Person. Seller is not a foreign person and is a
"United States Person" as such term is defined in Section 7701(a)(30) of the
Internal Revenue Code of 1986, as amended (the "Code").
6.2 Seller's Knowledge. As used in this Agreement, the phrase "Seller's
knowledge" shall be limited to the actual knowledge, without inquiry or
investigation, of the following persons: ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
6.3 Seller's Indemnification Against Breaches by Seller. Seller shall
indemnify, defend and hold Buyer and its officers, directors, shareholders,
employees, agents and affiliated entities (collectively, "Buyer's Affiliates")
harmless from and against all claims, demands, liabilities, actions, causes of
action, losses, damages to which Buyer may be entitled under Section 4.2(b),
costs, fees and expenses, including, without limitation, reasonable attorneys'
fees and disbursements (collectively, "Claims") which arise out of, result from
or
19
23
are related to Seller's breach of any representations, warranties or
covenants of Seller under this Agreement (subject to the limitations set forth
in Section 6.6). Seller's duty to indemnify and hold Buyer harmless under this
Section 6.3 shall include, without limitation, losses, damages, fees and
disbursements sustained and/or incurred by Buyer due to diminution in the value,
utility, marketability or financeability of the Property resulting from the
matters described in the first sentence of this Section 6.3. If Buyer receives
notice of a Claim by a third party against which Buyer is entitled to
indemnification, Buyer shall promptly give written notice thereof to Seller, and
Seller shall promptly take such measures as may be reasonably required to
properly and effectively defend such Claim, and may defend with counsel of its
own choosing approved by Buyer (which approval shall not be unreasonably
withheld or delayed). If Seller fails to properly and effectively defend such
third party Claim, then Buyer may defend such Claim with counsel of Buyer's own
choosing at Seller's expense.
6.4 Seller's Indemnification Regarding Hazardous Materials. Seller shall
indemnify, defend and hold Buyer and Buyer's Affiliates harmless from and
against all costs associated with (i) all remediation of the condition of the
Property required by any Responsible Agencies, (ii) all remediation of the
condition of the Property necessary to restore the Property to the condition
contemplated by the Decommissioning as described in Section 3.2(a) and Section
3.2(c), and (iii) any Claims by third parties concerning Hazardous Material
present on or migrating from the Property; provided, however, that Seller's duty
to indemnify, defend and hold harmless Buyer and Buyer's Affiliates under the
preceding clauses (i), (ii) and (iii) shall arise only to the extent that such
Claims result from acts or omissions of Seller relating to the Property
(including, without limitation, the presence, use, generation, manufacture,
storage, release or disposal of Hazardous Material) first occurring during the
period of Seller's ownership of the Property. It is the intention of Buyer and
Seller that the scope of the indemnity contained in this Section 6.4 be limited
to costs of remediation of the condition of the Property or of any other
property affected by Hazardous Material present on or migrating from the
Property, and Seller shall not be required to indemnify Buyer against other
Claims, harm or damages to Buyer or Buyer's Affiliates resulting from the
matters described in this Section 6.4, including, without limitation, death or
injury to any person, loss in value of the Property, or other consequential,
indirect or special damages (including, without limitation, lost profits).
6.5 Buyer's Representations and Warranties. In addition to its
representations and warranties made elsewhere in this Agreement, Buyer hereby
warrants and represents as of the date hereof and as of the Closing Date that:
(a) Organization; Authority. Buyer is a corporation organized,
validly existing and in good standing under the laws of the State of Delaware,
and is in good standing and qualified to do business in the State of California.
This Agreement and all documents executed by Buyer which are to be delivered to
Seller at the Closing are, or at the Closing Date will be, duly authorized,
executed, and delivered by Buyer, and are, or at the Closing Date will be,
20
24
legal, valid and binding obligations of Buyer, and do not, and at the Closing
Date will not, violate any provisions of any agreement or judicial order to
which Buyer is a party or to which it is subject. No consent of any partner,
shareholder, creditor, investor, judicial or administrative body, governmental
agency or other party is required for Buyer to enter into and/or to perform
Buyer's obligations under this Agreement, except as has already been obtained.
(b) Litigation. Buyer has received no written notice of any
pending litigation or government proceeding to which Buyer is a party that may
affect this Agreement or the transaction contemplated hereby.
(c) Property Acquired "As Is". Except for the express covenants,
representations and warranties of Seller set forth in Section 6.1, Buyer is
acquiring the Property "as is," without any covenant, representation or warranty
of any kind or nature whatsoever, express or implied, and Buyer is relying
solely on Buyer's own investigation of the Property. In accordance with
California Health & Safety Code section 25359.7, Seller has delivered to Buyer a
copy of the report described in Section 3.2(c) and Seller has made available to
Buyer Seller's Books and Records containing certain environmental information
about the Property.
6.6 Survival. All representations, warranties and indemnities contained
in this Section 6 shall survive the Closing; provided, however, that each
party's representations and warranties (but not Seller's indemnity) shall
terminate on the day which is twelve (12) months after the Closing Date.
7. CLOSING
7.1 Escrow. An escrow ("Escrow") shall be opened with the Escrow Holder
upon the execution of this Agreement. Buyer and Seller shall promptly upon
request therefor execute such additional escrow instructions as are reasonably
required to consummate the transaction contemplated by this Agreement and are
not inconsistent herewith.
7.2 Closing.
(a) The "Closing" means the exchange of money and documents as
described herein, and will be deemed to have occurred when Seller's Grant Deed
to Buyer has been recorded, the Escrow Holder holds and can record and deliver
the remaining documents described in this Section 7, the Escrow Holder is
irrevocably and unconditionally committed to issue the Title Policy and Escrow
Holder has delivered the Purchase Price in immediately available funds to
Seller.
21
25
(b) Seller and Buyer agree that the Closing shall occur on the
Closing Date. If Buyer has approved (or is deemed to have approved) the
Decommissioning Contingency during the Decommissioning Contingency Period, the
"Closing Date" shall be a date mutually agreeable to Buyer and Seller that is no
later than fifteen (15) days after the Decommissioning Contingency Date. If
Buyer has timely delivered the Decommissioning Disapproval Notice as provided in
Section 3.2(i) and Seller has undertaken to complete all corrective and/or
additional work required by Buyer thereunder, the Closing Date shall be a date
mutually agreeable to Buyer and Seller that is no later than seven (7) days
after Seller has demonstrated to Buyer's reasonable satisfaction that Seller has
completed in all material respects all such corrective and/or additional work.
In no event shall the Closing Date exceed eighteen (18) months from the date of
Seller's receipt of the Decommissioning Disapproval Notice. The Closing will be
at the offices of Escrow Holder or such other place as the parties may agree.
7.3 Seller's Closing Obligations. Not later than 1:00 pm on the business
day prior to the Closing Date, Seller shall deliver to the Escrow Holder for
delivery to Buyer (or the party noted below) through Escrow the following:
(a) The Grant Deed, duly executed and acknowledged by the Seller
and in recordable form;
(b) A certification or payoff demand from each lender holding a
deed of trust on the Property to secure a loan, stating the amounts required to
pay each such loan in full and to receive an executed request for reconveyance
of such deed of trust;
(c) Certificates required by Section 1445 of the Internal Revenue
Code of 1986, as amended, and California Revenue and Taxation Code Section 18815
executed by Seller and in a form satisfactory to Buyer, to relieve Buyer of any
potential transferee withholding liability under such Section;
(d) Such proof of Seller's authority and authorization to enter
into this Agreement and perform hereunder, and such proof of power and authority
of the individuals executing and/or delivering any instruments, documents or
certificates on behalf of Seller to act for and bind Seller as may reasonably be
required by Buyer or the Escrow Holder; and
(e) Other documents reasonably required to properly consummate
this transaction.
7.4 Buyer's Closing Obligations. Not later than 1:00 pm on the business
day prior to the Closing Date, Buyer will deliver to the Escrow Holder for
delivery to Seller through Escrow the following:
22
26
(a) Immediately available federal funds in the amount of the
Purchase Price minus the amount of the Deposit, plus Buyer's closing costs in
accordance with Section 7.9;
(b) Such proof of Buyer's authority and authorization to enter
into this Agreement and perform hereunder, and such proof of power and authority
of the individuals executing and/or delivering any instruments, documents or
certificates on behalf of Buyer to act for and bind Buyer as may reasonably be
required by Seller and the Escrow Holder; and
(c) Other documents reasonably required to properly consummate
this transaction.
7.5 Close of Escrow. If on the Closing Date (i) the Escrow Holder holds
and can deliver the documents described in Sections 7.3 and 7.4, (ii) the Escrow
Holder is irrevocably and unconditionally committed to issue the Title Policy
with respect to the applicable Property, (iii) the Buyer has delivered the
applicable Purchase Price, in immediately available federal funds to the Escrow
Holder, and (iv) the Escrow Holder can record the Grant Deed for the Property,
then the Escrow Holder shall:
(a) Record the Grant Deed;
(b) Deliver the Purchase Price to Seller by wire transfer, less
Seller's share of proration and Closing costs;
(c) Deliver the remaining documents to the parties specified in
Sections 7.3 and 7.4; and
(d) Deliver the remaining funds to Seller or Buyer, as the case
may be, after taking into account all items chargeable to the account of Seller
and Buyer pursuant to Sections 7.8 and 7.9.
7.6 Termination of Escrow. If the Closing does not take place as set
forth in Section 7.2, then the Escrow shall terminate, all documents deposited
into Escrow shall be returned to the respective parties, this Agreement shall
terminate and, subject to Section 4.2 and 4.4, the Deposit shall be returned to
Buyer.
7.7 Possession. Seller shall retain possession of the Property until
Closing and shall deliver possession thereof to Buyer upon Closing, subject only
to the Permitted Exceptions.
7.8 Prorations.
(a) Prorations Paid Through Escrow. Real property taxes and
current installments of assessments applicable to the Property and other
expenses applicable to the
23
27
Property and all income from the Property (if any) shall be prorated as of the
Closing Date with income and expenses allocable to the period on and after the
Closing Date to be for Buyer's account, and income and expenses allocable to the
period before the Closing Date to be for Seller's account. Any property taxes
assessed against the Property after the Closing Date, with respect to any period
of time before the Closing Date, shall be paid by Seller on demand. All
prorations shall be made as of 12:01 a.m. on the Closing Date, and Buyer shall
bear the burden of the expenses for such day.
(b) Adjustment After Closing. Any revenue or expense which cannot
be ascertained with certainty as of the Closing Date shall be prorated on the
basis of the parties' reasonable estimates of such amounts and shall be the
subject of a final proration as soon thereafter as the precise amounts can be
ascertained but in no event later than one hundred and eighty (180) days after
the Closing. A statement setting forth such agreed proration shall be delivered
to the Escrow Holder, provided Escrow Holder shall not be required to calculate
any prorations. Seller and Buyer shall each cooperate with the other diligently
and promptly to correct any errors in computations or estimates under this
Section 7.8 and shall promptly pay to the party entitled thereto any refund,
credit or other payment necessary to comply with this Section 7.8. This Section
7.8 shall survive the Closing. Either party owing the other party a sum of money
based on adjustments made to prorations after the Closing shall promptly pay
that sum to the other party, together with interest thereon at the rate of ten
percent (10%) per annum from the date of demand of payment to the date of
payment if payment is not made within ten (10) days after demand therefor.
7.9 Closing Costs. Seller shall pay the premium for a standard form
(CLTA) owner's policy of title insurance in the amount of the Purchase Price,
the county real property transfer taxes on this transaction, any prepayment fees
due under any loan secured by a deed of trust on the Property, any sales tax for
the Property and all escrow fees charged by Escrow Holder. Buyer shall pay any
additional premiums or charges with respect to the Title Policy, including the
excess of the ALTA premium over the CLTA premium and the costs of any
endorsements. Seller and Buyer shall each pay one-half of the city real property
transfer taxes, the costs of recording any necessary releases or reconveyances,
and the costs of recording the Grant Deed and any other documents. All other
Closing costs shall be split equally between Buyer and Seller.
This Section 7.9 shall survive the Closing.
7.10 Commissions. Buyer and Seller acknowledge that the transaction
contemplated by this Agreement is a principal-to-principal transaction. Both
parties represent that they have not been and will not be represented by any
real estate broker, finder or any other person or entity that might be entitled
to a commission or other compensation as a result of the this transaction.
Seller and Buyer each agrees to defend, indemnify and hold harmless the other
from and against any and all liabilities, claims, demands, damages, or costs of
any kind (including attorneys' fees, costs and expenses) arising from or
connected with any broker's or finder's fee or commission or charge claimed to
be due by any person or entity arising from or
24
28
by reason of the indemnifying party's conduct with respect to this transaction.
The provisions of this Section 7.10 shall survive the Closing hereunder.
7.11 Parties to Bear Own Expenses. Each of the parties hereto shall pay
all the costs and expenses incurred or to be incurred by them in negotiating and
preparing this Agreement and in carrying out the transaction contemplated
hereby.
7.12 Acceptance of Title. Buyer's acceptance of the Grant Deed from the
Seller for the Property at the Closing on the Closing Date and the issuance of
the Title Policy to Buyer by the Escrow Holder on the Closing Date shall
conclusively establish that Seller conveyed the Property to Buyer as required by
this Agreement and shall discharge in full Seller's obligations under this
Agreement with respect to title to the Property.
8. RISK OF LOSS
8.1 Condemnation. By notice to Seller given within 10 days after Buyer
receives notice of proceedings in eminent domain that are contemplated,
threatened or instituted by any body having the power of eminent domain, and if
necessary the Closing Date shall be extended to give Buyer the full 10-day
period to make such election, Buyer may: (i) terminate this Agreement and the
Deposit shall be immediately returned to Buyer; or (ii) proceed under this
Agreement, in which event Seller shall, at the Closing, assign to Buyer its
entire right, title and interest in and to any condemnation award, and Buyer
shall have the sole right during the pendency of this Agreement to negotiate and
otherwise deal with the condemning authority in respect of such matter.
8.2 Damage and Destruction. Except as provided below, this Agreement
shall be governed by the provisions of California Civil Code Section 1662 in
effect as of the Effective Date. For the purposes of this Agreement, a
destruction is material if the cost of repairing or replacing it, without
deduction for depreciation, exceeds the sum of Two Million Seven Hundred Fifty
Thousand Dollars ($2,750,000) provided that, if the applicable building codes or
other laws or regulations require work exceeding the repair or replacement of
the actual damage, the cost shall be considered to include all of the work. If
before Closing a nonmaterial part of the Property is destroyed, any insurance
proceeds, (or, if not theretofore received, the right to receive such proceeds)
payable on account of the damage shall be transferred to Buyer and the amount of
any deductible under the insurance policy (or, in the case of an uninsured
casualty, the restoration cost as reasonably estimated by Seller and Buyer)
shall be a credit to Buyer against the Purchase Price.
9. MISCELLANEOUS
9.1 Definitions of Environmental Laws and Hazardous Material.
25
29
(a) Environmental Laws. "Environmental Laws" shall mean any and
all present and future federal, state and local law (whether under common law,
statute, rule, ordinance, agreement, regulation or otherwise), requirement under
any permit issued with respect thereto, and other requirements of agencies
having jurisdiction thereunder relating to the protection of human health or the
environment, including (without limitation) the Federal Insecticide, Fungicide,
and Rodenticide Act, 7 U.S.C. Sections 136, et seq.; the Toxic Substances
Control Act, 15. U.S.C. Sections 2601, et seq.; Federal Asbestos Hazard
Emergency Response Act, 15 U.S.C. Sections 2641 et seq.; the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
Sections 9601, et seq. ("CERCLA"); the Resource Conservation and Recovery Act,
42 U.S.C. Sections 6901 et seq. ("RCRA"); the Federal Water Pollution Prevention
and Control Act, 33 U.S.C. Sections 1251 et seq. (the "Clean Water Act"); the
Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801, et seq.; the
Solid Waste Disposal Act, 42 U.S.C. Sections 6901, et seq.; the Federal Water
Pollution Control Act, 33 U.S.C. Sections 1321; 42 U.S.C. Sections 7401 et seq.
(the "Clean Air Act"); the California Hazardous Waste Control Act, Cal. Health &
Safety Code ("H.&S.C.") Sections 25100 et seq.; the California Hazardous
Substance Account Act, H.& S.C. Sections 25300 et seq.; the California Safe
Drinking Water and Toxic Enforcement Act, H.& S.C. Sections 25249.5, et seq.
("Proposition 65"); the California Hazardous Waste Management Act, H.&S.C.
Sections 25170.1 et seq.; H.&S.C. Sections 25501 et seq. (Hazardous Materials
Response Plans and Inventory); the ▇▇▇▇▇▇- Cologne Water Control Act, Cal. Water
Code Sections 13000 et seq. H.&S.C. Sections 25280, et seq. (Underground Storage
of Hazardous Substances); H.&S.C. Section 25915 et seq. (the "▇▇▇▇▇▇▇▇ Act");
H.&S.C. Section 25359.7; H.&S.C. Sections 2595 et seq; Cal. Labor Code Sections
6501 et seq.; and Title 22 of the California Code of Regulations; all as amended
to the date hereof.
(b) Hazardous Material. "Hazardous Material" shall include any
chemical, compound, material, mixture or substance which is now or hereafter
defined or listed in, or otherwise classified pursuant to, any Environmental Law
as a "hazardous substance," "hazardous material," "reproductive toxicant,"
"hazardous waste," "extremely hazardous waste," "infectious waste,"
"biohazardous waste," "medical waste," "toxic substance," "toxic pollutant,"
"pollutant, contaminant" or any other formulation intended to define, list, or
classify substances by reason of deleterious properties to human health, safety
or the environment, such as ignitability, corrosivity, reactivity,
carcinogenicity, radioactivity or toxicity, including all petroleum hydrocarbon,
petroleum-derived material, natural gas, natural gas liquids, liquefied natural
gas, or synthetic gas usable for fuel (or mixtures of natural gas and such
synthetic gas), asbestos and those substances listed in the United States
Department of Transportation Table (49 CFR 172.101, as amended).
9.2 Assignment; Binding Effect. From the Effective Date through the date
on which Buyer deposits the Additional Deposit with Escrow Holder, Buyer may
assign this Agreement only with Seller's consent, which shall not be
unreasonably withheld or delayed. From and after the day immediately following
the date on which Buyer deposits the Additional Deposit with Escrow Holder,
Buyer may assign this Agreement in its sole and absolute discretion.
26
30
Notwithstanding anything to the contrary contained in this Section 9.2, Buyer in
its sole and absolute discretion may assign this Agreement at any time to a
corporation, partnership or limited liability company which acquires a
controlling interest in Buyer or in which Buyer holds a controlling interest.
Any assignment by Buyer shall not release Buyer from any of the obligations on
Buyer's part to be performed under this Agreement. This Agreement shall be
binding on and shall inure to the benefit of the parties to it and their
respective legal representatives, successors and assigns.
9.3 Severability. If any term, covenant, provision, paragraph or
condition of this Agreement shall be illegal, such illegality shall not
invalidate the whole Agreement, but, to the extent permitted by law, the
Agreement shall be construed to give effect to the intent manifested by the
portion held inoperative or invalid and the rights and obligations of the
parties shall be construed and enforced accordingly.
9.4 Entire Understanding. This Agreement and the Access Agreement
represent the entire understanding of the parties hereto and supersede all prior
written or oral agreements or representations, if any, relative to the subject
matter involved.
9.5 Amendments. This Agreement may not be modified, changed or
supplemented except by written instrument signed by both parties.
9.6 California Law. The interpretation and performance of this Agreement
shall be governed by the laws of the State of California applied to agreements
to be performed entirely within the State of California by residents of the
State of California.
9.7 Waiver. Other than deemed waivers provided for herein, all waivers
by either party shall be in writing. The waiver by either party of any breach of
any term, covenant or condition of this Agreement shall not be deemed a waiver
of such term, covenant or condition or any subsequent breach of the same or any
other term, covenant or condition of this Agreement.
9.8 Notices. Any and all notices or other communication required or
permitted by this Agreement or by law to be served on or given to a party hereto
by the other party shall be in writing and given personally (including overnight
courier), by facsimile transmission (evidenced by a facsimile machine-generated
confirmation of delivery) or by registered or certified mail (postage fully
prepaid) addressed as follows:
To Seller: Integrated Device Technology, Inc.
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Vice President and Chief Financial Officer
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
27
31
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Copy To: Integrated Device Technology, Inc.
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Vice President and General Counsel
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Copy To: Pillsbury Madison & Sutro LLP
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
To Buyer: Cadence Design Systems, Inc.
Attn: Mr. ▇▇▇▇ ▇▇▇▇▇
Vice-President, Real Estate and Facilities
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to: Crosby, Heafey, ▇▇▇▇▇ & May, Professional Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
To Escrow
Holder: Chicago Title Insurance Company
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇, Ext. 314
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
28
32
Either party may change such address by written notice to the other. Any
notice delivered as described above shall be deemed received on the date of
delivery. Any notice under this Agreement may be given on behalf of a party by
the attorney for such party. Any notices or other communication required or
permitted by this Agreement or by law to be served on Seller shall be deemed
effective on the date of delivery to ▇▇▇▇ ▇▇▇▇▇, but Buyer shall promptly
deliver copies to the other Seller parties noted in this Section 9.8. Any
notices or other communication required or permitted by this Agreement or by law
to be served on Buyer shall be deemed effective on the date of delivery to ▇▇▇▇
▇▇▇▇▇, but Seller shall promptly deliver copies to the other Buyer parties noted
in this Section 9.8.
9.9 Captions. The captions inserted herein are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope
of this Agreement or the intent of any of the provisions hereof.
9.10 Exhibits. All exhibits and schedules referred to herein are
incorporated by reference as though fully set forth herein.
9.11 Time of the Essence. Time is of the essence in this Agreement and
failure to comply with this provision shall be a material breach of this
Agreement.
9.12 Additional Cooperation. Seller and Buyer will execute such additional
documents or take such additional action, without cost or expense, as may be
reasonably necessary or desirable to carry out the provisions of this Agreement
or to further perfect the conveyance, transfer and assignment of the Property to
Buyer. This provision survives the Closing.
9.13 Confidentiality. The provisions of the Access Agreement concerning
confidentiality are incorporated by reference.
9.14 Counterparts. This Agreement may be executed in counterparts, each of
which when executed shall be deemed an original and all of which counterparts
taken together shall constitute but one and the same instrument. Signature pages
may be detached from the counterparts and attached to a single copy of this
Agreement to form one document.
9.15 Survival. Subject to the limitations set forth in Section 6.6, the
provisions of this Agreement shall survive the termination of the Agreement and
Closing.
9.16 Extensions for Holidays. If the Closing, Closing Date or any other day
for the performance of any act or delivery or recordation of any instrument or
document falls on a Saturday, Sunday or holiday on which the Santa ▇▇▇▇▇ County
Recorder's office is closed, the time for performance, delivery or recordation
shall be extended to the next day which is not a Saturday or such holiday.
29
33
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
"Seller"
Integrated Device Technology, Inc.
a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ 12/15/98
-----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
Its: Vice President and Chief Financial
Officer
"Buyer"
Cadence Design Systems, Inc.
a Delaware corporation
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇ 12/15/98
-----------------------------------------
▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Its: Senior Vice President and General
Counsel
CONSENT OF ESCROW HOLDER
Chicago Title Company (the "Escrow Holder") accepts the foregoing Purchase
and Sale Agreement and Joint Escrow Instructions as escrow instructions, agrees
to act as escrow holder and agrees to be bound by the provisions therein
applicable to it as Escrow Holder.
Dated:_________________
Chicago Title Company,
a California corporation
By: _______________________________________
30
34
Title: ____________________________________
31