AGREEMENT FOR PURCHASE AND SALE
OF
REAL PROPERTY
BY AND BETWEEN
WHTS FREEDOM CIRCLE PARTNERS II, L.L.C.,
a Delaware limited liability company,
AS SELLER
AND
PMC-SIERRA, INC.,
a Delaware corporation,
AS BUYER
DATED JULY 2, 2003
PROPERTY LOCATED AT:
3985 FREEDOM CIRCLE
SANTA CLARA, CALIFORNIA
AGREEMENT FOR PURCHASE AND SALE
OF
REAL PROPERTY
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY (the
"Agreement") is dated as of the 2nd day of July, 2003 (the "Contract Date"), by
and between WHTS FREEDOM CIRCLE PARTNERS II, L.L.C., a Delaware limited
liability company ("Seller"), and PMC-SIERRA, INC., a Delaware corporation
("Buyer").
RECITALS
WHEREAS, Seller desires to cause the sale, assignment and
transfer of its interests in and to the Property (as hereinafter defined) to
Buyer and Buyer desires to purchase such interests from Seller upon the terms of
this Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Seller and Buyer hereby agree as
follows:
1. Definitions. Unless the context otherwise specifies or requires, for
the purposes of this Agreement all words and phrases having their initial
letters capitalized herein shall have the meanings set forth below:
"Adjacent Property" shall mean the real property owned by WHTS Freedom
Circle Partners, L.L.C., a Delaware limited liability company, commonly known as
3975 Freedom Circle, Santa Clara, California, and more particularly described in
Exhibit R to this Agreement.
"Buyer Party" shall mean one unaffiliated third party designated by
Buyer prior to the Scheduled Closing Date.
"Closing Certificate" will be the WHTS Closing Certificate to be
delivered to Buyer on the Closing Date in the form of Exhibit O.
"Closing Date" shall mean the date of recordation of the Deed.
"Closing Documents" shall mean the Closing Certificate, the Parking
Easement Agreement, the Reliance Letter, and the Development Indemnity Agreement
and, if applicable, the WHTS Modification Indemnity.
"Contingency Period" shall mean the period commencing on the Contract
Date and terminating at 5:00 p.m. Pacific Time on July 2, 2003.
"Contract Date" shall mean May 12, 2003.
"Development Indemnity Agreement" shall mean a Development Indemnity
Agreement in the form set forth in attached Exhibit S, to be executed and
recorded in the office of the Santa Clara County Clerk Recorder, on or prior to
the Closing Date, by Seller and WHTS Freedom Circle Partners, L.L.C. a Delaware
limited liability company (as the owner of the Adjacent Property).
"Environmental Insurance Policy" shall mean an insurance policy
acceptable to Buyer insuring against loss and liability as a consequence of the
presence of legionella bacteria in the Property after the Closing Date in such
form and from such insurer and with such coverages, deductibles, and exclusions
as Buyer shall approve during the Contingency Period and insuring Buyer and such
other parties as Buyer shall designate during the Contingency Period as
additional insureds.
"Environmental Laws" shall mean any and all federal, state and local
laws, statutes, rules, regulations, requirements under permits issued with
respect thereto, and other requirements of any federal, state or local
governmental agency, court, board, bureau or other authority having jurisdiction
with respect to or relating to the environment, to any Hazardous Substance or to
any activity involving Hazardous Substances, and shall include, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. Section 9601, et seq., the Federal Resource
Conservation and Recovery Act (42 U.S.C. Section 6901, et seq.) and all
amendments thereto in effect as of the Closing Date.
"Hazardous Substances" shall mean and include any chemical, compound,
material, mixture, waste or substance that is defined or listed in, or otherwise
classified pursuant to, any Environmental Laws as a "hazardous substance,"
"hazardous material," "hazardous waste," "extremely hazardous waste,"
"infectious waste," "toxic substance," "toxic pollutant" or any other
formulation intended to define, list, or classify substances by reason of
deleterious properties such as ignitability, corrosivity, reactivity,
carcinogenicity, or toxicity including any petroleum, natural gas, natural gas
liquids, liquified natural gas, or synthetic gas usable for fuel (or mixture of
natural gas and such synthetic gas) and including legionella bacteria.
"Hazardous Substances" shall include, without limitation, any hazardous or toxic
substance, material or waste or any chemical, compound or mixture which is (i)
asbestos, (ii) designated as a "hazardous substance" pursuant to Section 1317 of
the Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.), (iii)
defined as a "hazardous waste" pursuant to Section 6903 of the Federal Resource
Conservation and Recovery Act, (42 U.S.C. Section 6901 et seq., (iv) defined as
"hazardous substances" pursuant to Section 9601 of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601
et seq.), or (v) listed in the United States Department of Transportation Table
(49 CFR 172.101) or by the Environmental Protection Agency as hazardous
substances (40 CFR part 302); or in any and all amendments thereto in effect as
of the Closing Date; or such chemicals, compounds, mixtures, substances,
materials or wastes otherwise regulated under any applicable local, state or
federal Environmental Laws.
"Hillmann" shall mean Hillmann Environmental Company, Inc., now known
as Hillmann Environmental Group.
"Improvements" shall mean all improvements and fixtures now or
hereafter located on the Land including, without limitation, the twelve (12)
story building (the "Building") constructed on the Land, together with all
appurtenances thereto and all apparatus, equipment and appliances located on the
Land and owned by Seller and used in connection with the operation and occupancy
thereof such as systems or facilities for heating, ventilation, air
conditioning, climate control, utility services, parking services, garbage
disposal, irrigation and/or recreation, and all landscaping.
"Intangible Property" shall mean Seller's rights, title and interests
in: (a) any and all transferable or assignable permits, building plans and
specifications, certificates of occupancy, operating permits, sign permits,
development rights and approvals, certificates, licenses, warranties and
guarantees, trade names, service marks, engineering, soils, pest control and
other reports relating to the Property, tenant lists, advertising materials, and
telephone exchange numbers identified with the Property; and (b) all other
transferable intangible property, miscellaneous rights, benefits or privileges
of any kind or character with respect to the Property.
"Land" shall mean the real property commonly known as 3985 Freedom
Circle, Santa Clara, California, and more particularly described in Exhibit A to
this Agreement, and all rights and interests appurtenant thereto, including but
not limited to rights under the Parking Easement Agreement and all other
easements, riparian or other water rights, rights of way and other interests
appurtenant thereto, and all right, title and interest of Seller in and to any
land lying in the bed of any street, road, highway or avenue, open or proposed,
in front of, adjacent to or adjoining such real property and in all strips and
gores.
"Laws and Restrictions" shall mean all applicable federal, state, local
and other laws, statutes, regulations, codes, orders, ordinances and rules
including, without limitation, those relating to fire, safety, land use,
subdivision, health, labor, environmental protection, seismic design,
conservation, parking, handicapped access, zoning and building, and all
restrictive covenants (if any), other title encumbrances and other obligations
affecting the Property, all Environmental Laws, all applicable provisions of the
Fair Housing Act of 1968 and the Americans With Disabilities Act of 1990, and
all amendments thereto.
"Material Exception" is defined in Section 4(c)(viii).
"PMC Lease" shall mean that certain lease dated July 20, 2000 between
Seller, as landlord and PMC-Sierra, Inc., as tenant (the "Tenant"), as amended
by First Amendment to Lease dated November 6, 2000.
"Parking Easement Agreement" shall mean that certain Easement Agreement
dated July 6, 2000, and recorded on September 22, 2000 as Document No. 15400202
in the office of the Santa Clara County Clerk Recorder, as amended by First
Amendment dated October 31, 2000, recorded as Document No. 15445030 on November
2, 2000, by and between Seller and WHTS Freedom Circle Partners, L.L.C., as the
same shall be amended and restated (and recorded in the office of the Santa
Clara County Clerk Recorder) on the Closing Date as set forth in attached
Exhibit J.
"Permitted Exceptions" shall mean the exceptions to title identified as
items 1 through 16, inclusive, on Schedule B Part 2 of the Title Commitment
attached hereto as Exhibit I.
"Personal Property" shall mean all personal property now or hereafter
owned by Seller, which is used in connection with the Land, the Improvements
and/or the Intangible Property or the ownership or operation thereof including,
without limitation, all furniture, fixtures, machinery, appliances and equipment
located on the Property, other than personal property owned by tenants of the
Property. A list of the Personal Property is attached hereto as Exhibit C.
"Property" shall mean collectively the Land, the Improvements, the
Personal Property, and the Intangible Property and all of Seller's interest, as
landlord, in and to the PMC Lease.
"Reliance Letter" shall mean the letters in the form of Exhibit Q
attached hereto and duly signed by Hillmann.
"Scheduled Closing Date" shall mean July 7, 2003.
"Title Commitment" shall mean that title commitment issued by the Title
Company for an ALTA Extended Coverage Owner's Policy of Title Insurance (Form B,
Rev. 10/17/70), and including a commitment for the following endorsements: CLTA
endorsements numbered 100 (modified) 100.6, 103.4, 103.7, 116, 116.1, 116.4,
116.7 and 123.2, a "Fairway" endorsement, and a "separate tax parcel"
endorsement, which is attached hereto as Exhibit I.
"Title Company" shall mean First American Guaranty Company whose
address for this transaction is as follows:
First American Guaranty Company
1737 North First Street, Suite 100
San Jose, California 95112
Attn: Mike Hickey
Fax No. (408) 451-7836
"Title Policy" is defined in Section 4(c)(i).
"WHTS Modification Indemnity" shall mean a WHTS Modification Indemnity
in the form set forth in attached Exhibit T as described in Sections 4(c)(viii)
and (ix).
2. Purchase And Sale. Seller agrees to sell the Property to Buyer, and
Buyer agrees to purchase the Property from Seller, on all of the terms,
covenants and conditions set forth in this Agreement.
3. Purchase Price. The total purchase price for the Property (the
"Purchase Price") shall be the sum of $133,000,000 which, subject to all
prorations and adjustments provided in this Agreement, shall be paid by Buyer to
Seller through escrow on the Closing Date as follows:
3.1 Deposit. Prior to the expiration of the Contingency Period,
provided Buyer does not elect to terminate this Agreement in accordance with
Section 4 below, Buyer shall deposit with the Title Company the amount of
$2,000,000 (the "Deposit"), which sum the Title Company shall deposit in a
federally insured interest-bearing "money market" account at a financial
institution reasonably acceptable to Seller and Buyer with the interest from
such account to be credited to Buyer.
3.2 Cash Payment. The balance of Purchase Price shall be paid to
Seller by wire transfer in immediately available federal funds on the Closing
Date.
4. Review And Inspection; "As-Is" Purchase; Conditions To Agreement.
(a) Review And Inspection. During the Contingency Period, Buyer
and, if applicable, any Buyer Party designated by Buyer prior to the close of
escrow, shall have the right to conduct, at its sole cost and expense, such
investigations, studies, surveys, analyses and tests on and of the Property as
it shall, in its sole discretion, determine are necessary or desirable,
including, without limitation, soil tests, environmental audits and studies, and
make such evaluations as Buyer may, in its sole and absolute discretion,
determine are necessary or desirable under the circumstances, provided that (i)
Buyer and any such Buyer Party shall only have the right to conduct soils and
groundwater tests and borings regarding the environmental condition of the
Property with the Seller's prior written consent, which shall not be
unreasonably withheld or delayed, (ii) Buyer shall maintain, or in the case
Buyer Party is the entering party, cause Buyer Party to maintain, a Three
Million Dollar ($3,000,000) combined, single limit, comprehensive general
commercial liability insurance policy with respect to the Property, issued by a
licensed insurance company naming Seller and Seller's property manager as
additional insureds; and (iii) Buyer shall defend, indemnify, protect and hold
Seller and the Property and Seller's affiliates, members, subsidiaries,
officers, directors and agents harmless from and against any loss, cost, damage,
or expense (including without limitation, reasonable attorneys' fees) incurred
by Seller as a result of property damage, personal injury, or mechanics' liens,
to the extent arising out of Buyer's or Buyer Party's inspections of the
Property and Improvements. Without limiting the generality of the foregoing,
Buyer agrees to pay Seller, or cause a Buyer Party to pay Seller, upon demand,
the cost of repairing and restoring any damage or disturbance which Buyer, Buyer
Party or their respective agents or contractors cause to the Property.
Notwithstanding the foregoing, Buyer Party shall have no liability for the
discovery of any matters in, on, at, or relating to the Property. The indemnity
contained in this Section 4(a) shall survive the close of escrow or termination
of this Agreement. In order to perform the foregoing investigations, during the
Contingency Period, Buyer, Buyer Party (if applicable), their respective
potential lenders, and the agents, contractors, and employees for said parties,
shall have reasonable access to the Property, all for the purposes of inspecting
the same and conducting tests, inspections, and analyses thereon and making
evaluations thereof, all at the Buyer's, or Buyer Party's (if applicable),
expense. In particular, Buyer and Buyer Party shall be permitted to conduct the
borings, drillings, soils tests and groundwater tests described on Exhibit N
attached hereto. Buyer and Buyer Party shall not be permitted to conduct any
other borings, drillings, soils tests, or groundwater tests on the Property in
connection with the preparation of an environmental audit or in connection with
any other inspection of the Property without the prior written reasonable
consent of Seller. Buyer or Buyer Party, as the case may be, shall schedule and
coordinate all inspections, including, without limitation, any environmental
tests, with Seller and shall give Seller at least one (1) business day's prior
notice of such test. Seller shall be entitled to have a representative present
at all times during each such inspection. Seller has made available to Buyer the
documents, plans, studies (environmental or otherwise) and reports listed on
Exhibit M attached hereto. Except as expressly provided to the contrary in the
Seller Certificate or this Agreement, Seller makes no representation or warranty
relating to the validity of such information and Buyer (or Buyer Party as the
case may be) is responsible to verify such information at its discretion. In
conducting the inspection of the Property, Buyer shall at all times comply with
all laws and regulations of all applicable governmental authorities, and Buyer
shall not contact or have any discussions with any of Seller's employees, agents
or representatives, or with any contractors providing services to the Property
unless in each case Buyer obtains the prior consent of Seller, which consent
shall not be unreasonably withheld, it being agreed that all such contacts or
discussions shall, pending any such approval, be directed to Carl Shannon ((415)
536-1850).
(b) Termination During Contingency Period. Buyer may, at any time
during the Contingency Period, for any reason or no reason, (i) terminate this
Agreement by delivering to Seller its written notice of termination prior to the
expiration of the Contingency Period, or (ii) waive its right to terminate this
Agreement by, prior to the expiration of the Contingency Period, (a) waiving its
termination right in writing and delivering such waiver to Seller, and (b)
timely delivering the Additional Deposit to the Title Company. In the event
Buyer (1) fails to provide a written waiver of its right to terminate in
accordance with the foregoing no later than 5 p.m. Pacific Time on the last day
of the Contingency Period, or (2) fails to deposit the Additional Deposit with
the Title Company no later than 5 p.m. Pacific Time on the last day of the
Contingency Period, then this Agreement shall automatically terminate. In the
event of any automatic termination or other termination by Buyer pursuant to
this Section 4(b), (x) the Initial Deposit and all other funds deposited in
escrow by Buyer and all interest accrued on such funds (less Buyer's share of
any escrow and title cancellation fees) shall be returned immediately to Buyer,
(y) all documents deposited in escrow by Buyer or Seller shall be returned to
the depositing party, and (z) Buyer shall promptly deliver to Seller, at no cost
to Seller, and without representation or warranty, the originals or copies of
all tests, reports and inspections of the Property, which do not restrict such
delivery to a third party, made and conducted by Buyer, Buyer Party or for
Buyer's benefit or for Buyer Party's benefit which are in the possession or
control of Buyer and promptly return to Seller copies of all materials delivered
by Seller to Buyer and shall destroy all copies and abstracts thereof, and
except for this Section 4(b) and the provisions of this Agreement that expressly
survive the termination of this Agreement, this Agreement shall be null and void
and of no further force and effect, and neither Seller nor Buyer shall have any
further rights or obligations hereunder.
(c) Conditions Precedent. Buyer's obligation to purchase the
Property shall be conditioned expressly upon the fulfillment of each of the
following conditions precedent on or before the Closing Date:
(i) The issuance by the Title Company, or the irrevocable
binding commitment of the Title Company to issue, on the Closing Date,
conditioned only upon payment of the Title Company's regularly-scheduled
premium, the title policy ("Title Policy") described in the Title Commitment,
including the endorsements described in the Title Commitment, insuring fee
simple absolute title to the Property, free and clear of all liens and
encumbrances except for the Permitted Exceptions.
(ii) Subject to Section 8 of this Agreement, there shall have
been no material adverse change in the condition of the Property or any portion
thereof.
(iii) There are no contracts, other than the PMC Lease, the
Permitted Exceptions, and any other agreements approved in writing by Buyer,
which will affect the Property or be binding upon Buyer on or after the Closing
Date.
(iv) From and after the Contract Date, Seller has not failed
in any material respect to perform the items described in clauses (i) through
(vi) of Section 5.3(a) below.
(v) From and after the Contract Date, Seller has not removed
or permitted the removal of any Personal Property or any fixtures from the
Property except to the extent such items were replaced with Personal Property or
fixtures of equal or greater value.
(vi) The execution, acknowledgement, and delivery by Seller
and the owner of the Adjacent Property of an Amended and Restated Parking
Easement Agreement in the form attached hereto as Exhibit J, the recordation
thereof in the office of the Santa Clara County Clerk Recorder and the recorded
subordination thereto by the holder of any deed of trust or other foreclosable
document or instrument currently encumbering the Adjacent Property, all on or
prior to the Closing Date.
(vii) The execution and delivery by Hillmann to Buyer and
Buyer Party (if applicable) of the Reliance Letter.
(viii) The execution and delivery to Buyer of the Closing
Certificate. Notwithstanding the foregoing, if Seller includes any matter on
Schedule 2 to the Closing Certificate and all matters on Schedule 2 to the
Closing Certificate, when taken together, constitute a "Material Exception" (as
hereinafter defined), Buyer shall have the right to terminate this Agreement.
Upon any such termination, the Deposit will be returned by the Title Company to
Buyer (and Seller shall so instruct the Title Company) and, subject to the
provision for reimbursement of expenses under certain circumstances set forth in
this Section 4(c)(viii), this Agreement shall terminate and be of no further
force or effect, except for those provisions that expressly survive the
termination hereof. If this Agreement is not so terminated by Buyer, then Seller
and Buyer shall consummate this transaction in accordance with this Agreement.
If Seller includes any matter on Schedule 2 to the Closing Certificate, but all
of the matters on Schedule 2 to the Closing Certificate do not in the aggregate
constitute a Material Exception, then (1) Buyer shall have no right to terminate
this Agreement pursuant to this Section 4(c)(viii), (2) the additional condition
precedent described in Section 4(c)(ix) shall apply, and (3) subject to the
terms and conditions of this Agreement, Seller and Buyer shall consummate this
transaction without any abatement in the Purchase Price as a result of that
matter (so long as the condition precedent described in Section 4(c)(ix) is
satisfied). Furthermore, if Buyer terminates this Agreement pursuant to this
Section 4(c)(viii) and a matter set forth on Schedule 2 to the Closing
Certificate, which alone or together with other matters thereon, gave rise to
the termination right, makes the representations and warranties made by Seller
in Section 5.1 false as of the Contract Date, then Seller, upon Buyer's written
request, shall pay to Buyer an amount equal to all of the Buyer Party's
out-of-pocket costs incurred in connection with or related to the Property,
including without limited to legal expenses, non-refundable loan fees, and
studies, inspections and investigations of the Property during the Contingency
Period, but in no event to exceed $250,000. For the purposes of this Section
4(c)(viii), the matters set forth on Schedule 2 to the Closing Certificate shall
be deemed a "Material Exception," if, but only if, all of the matters included
on Schedule 2 to the Closing Certificate, when taken together, would reasonably
be expected to result in additional cost, expense, liability and/or damage to
Buyer (after factoring in all cost of litigating, resolving, and/or defending
the matter, any reduction in the fair market value of the Property, any
contingent liability, and the cost of any delay in the lease-up of the Property)
in excess of Five Hundred Thousand Dollars ($500,000). The provisions of this
Section 4(c)(viii) shall survive the close of escrow or the termination of this
Agreement. In addition, the provisions of this Section 4(c)(viii) shall be
subject to Section 8 of this Agreement and shall not apply to any events covered
thereunder.
(ix) If, but only if, required pursuant to Section 4(c)(viii)
above, the delivery to Buyer of the WHTS Modification Indemnity. The WHTS
Modification Indemnity shall be subject to the limitations set forth in the
Closing Certificate.
(x) The execution, acknowledgement, and delivery by Seller
and the owner of the Adjacent Property of the Development Indemnity Agreement
and the recordation of the Development Indemnity Agreement in the office of the
Santa Clara County Clerk Recorder, all on or prior to the Closing Date.
(xi) The issuance of the Environmental Insurance Policy.
Buyer shall use, or shall cause Buyer Party to use, good faith efforts to obtain
the Insurance Policy.
At any time or times on or before the Scheduled Closing Date, Buyer may waive
any of the foregoing conditions by written notice to Seller. Other than Buyer's
close of escrow pursuant to this Agreement, which shall waive all such
unfulfilled conditions, no waiver shall be effective unless made in writing
specific as to the conditions or matters so waived.
(d) AS IS Purchase. Buyer acknowledges that Buyer will have had
the opportunity to conduct prior to the Closing Date, such studies and
investigations of the Property as Buyer desires, and that Buyer will have had
the right to observe to its satisfaction, and will have observed to its
satisfaction, the physical characteristics and condition of the Property. Except
as expressly set forth in the Closing Documents, Buyer acknowledges and agrees
that the Property is to be purchased and accepted by Buyer in its condition as
of the Closing Date, "AS IS", without any implied or express warranty or
representation by Seller or anyone acting or purporting to act on Seller's
behalf ("Seller's Agents"), and with all patent and latent defects. No
representations or warranties, express or implied regarding the Property or
matters affecting the Property have been or will be made with respect to the
Property or the subject matter of this Agreement, by Seller or Seller's Agents,
or by any other person or entity, except as expressly set forth in this
Agreement or the Closing Documents. Without limiting the foregoing, Buyer
acknowledges that no representation is or will be made concerning the physical
condition, environmental, economic, or legal condition of the Property, title to
or the boundaries of the Property, topography, climate, air, water rights,
utilities, leases, water, present and future zoning, physical condition, soil
condition, pest control matters, engineering characteristics, traffic patterns,
purposes to which the Property may be suited, value, potential for development,
contamination, drainage, access to public roads, proposed routes of roads or
extensions thereof, and compliance with building, health, safety laws,
Environmental Laws, land use laws and regulations to which the Property may be
subject or any other matter in any way affecting the Property, or the use or
ownership thereof (herein collectively the "Property Matters") by Seller,
Seller's Agents, or by any other person or entity, except as expressly set forth
in this Agreement or the Closing Documents. Buyer acknowledges that, although
Seller has disclosed or made available documents and reports concerning the
Property, other than those specifically set forth in this Agreement and the
Closing Documents, (i) that Seller cannot and does not make any warranty or
representation whatsoever concerning the completeness or the accuracy of
information contained in such documents and reports and (ii) that Buyer is not
relying upon any such representations and warranties made by Seller, Seller's
Agents, or any other person or entity. Buyer further acknowledges that it has
not received from Seller or anyone acting or claiming to act on Seller's behalf,
any accounting, tax, legal, architectural, engineering, property management,
environmental or other advice with respect to this transaction and is relying
solely upon the advice of its own accounting, tax, legal, architectural,
engineering, property management, environmental and other advisors.
THEREFORE, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR THE CLOSING
DOCUMENTS, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
DIRECTLY OR INDIRECTLY, TO BUYER, AND SELLER IS TRANSFERRING TO BUYER, AND BUYER
IS PURCHASING THE PROPERTY FROM SELLER, IN ITS "AS IS' CONDITION ON THE CLOSING
DATE, AND BUYER IS ASSUMING ON THE CLOSING DATE THE RISK THAT ADVERSE PHYSICAL,
ENVIRONMENTAL, ECONOMIC OR LEGAL CONDITIONS MAY NOT HAVE BEEN REVEALED BY ITS
INVESTIGATION.
Notwithstanding the foregoing, but subject to any Release executed as of the
Closing Date in the form attached hereto as Exhibit U, nothing contained in, nor
any of the statements made or actions taken by either party in connection with,
this Agreement shall be deemed to have in any manner waived, released, modified
or discharged Buyer and Seller of their respective rights and obligations under
the PMC Lease or under applicable statutory or common law with respect to the
Property, the Property Matters or the undertakings and rights of the parties as
set forth in the PMC Lease.
This Section 4(d) shall survive the close of escrow. Buyer hereby specifically
acknowledges that Buyer has carefully reviewed this subsection and discussed its
import with legal counsel and that provisions of this subsection are a material
part of this Agreement.
5. Representations, Warranties, Covenants And Agreements.
5.1 Representations And Warranties Of Seller. Seller hereby makes
the following representations and warranties to and for the benefit of Buyer,
each of which representations and warranties (i) is material and being relied
upon by Buyer, (ii) is made as an inducement to Buyer to enter into this
Agreement and consummate the transaction contemplated hereby, (iii) is true in
all respects as of the date of this Agreement, and (iv) shall survive the close
of escrow but such survival shall be limited as set forth in this Section 5.1.
(a) Seller is a Delaware limited liability company and has
the full power, authority and legal right to enter into and perform this
Agreement. The execution, delivery and performance of this Agreement have been
duly authorized by all necessary action on the part of the Seller.
(b) Seller has no actual knowledge of any pending or
threatened actions or proceedings before any court or administrative agency
which could reasonably be expected to materially and adversely affect the
ability of Seller to perform Seller's obligations under the Purchase Agreement.
(c) To the best of Seller's actual knowledge, there are no
pending or threatened condemnation or similar proceeding affecting the Property
or any portion thereof.
(d) To the best of Seller's actual knowledge, other than
claims made by PMC under the PMC Lease, there are no third party claims, legal
actions, suits, or other legal or administrative proceedings, pending or
threatened against the Property.
(e) To the best of Seller's actual knowledge, there is no
unrecorded or undisclosed legal or equitable interest in the Property owned or
claimed by any party other than Seller or Buyer.
(f) Seller has not received any written notices from any
governmental agencies of any condition, or defects with respect to any
violations of building codes and/or zoning ordinances, Environmental Laws or
other governmental laws, regulations or orders with respect to the Property that
remain uncured. Seller shall promptly notify Buyer of any violations or
conditions of which Seller becomes aware.
(g) To the best of Seller's actual knowledge, except for the
PMC Lease (as defined in the Purchase Agreement), there are no leases or adverse
or other parties in possession of the Property or any part thereof.
(h) Seller has made available or shall make available to
Buyer on or prior to June 16, 2003 all reports and documents in Seller's
possession or control with respect to the physical, environmental and legal
condition of the Property, and Seller is not aware that any other reports or
documents regarding such matters, and generated or dated after Seller's initial
acquisition of title to the Property, exist.
(i) Except for the PMC Lease, the Permitted Exceptions, that
certain Master License Agreement dated May 4, 2001 by and between TishmanSpeyer
Properties and Ad Walls, LLC, that certain Information Services Agreement dated
August 2000 between WHTS and Elevator News Network (the "Elevator News
Agreement"), and other agreements or obligations referred to or contemplated by
this Agreement, there are no leases, contracts, employment agreements, service
contracts, utility contracts, construction contracts, maintenance agreements,
leasing and brokerage agreements or any other contracts, agreements and
obligations, whether or not in writing, which relate to Seller's ownership,
operation, management, maintenance and use or occupancy of the Property which
will be binding on the Property, Buyer or any Buyer Party after the Closing
Date. On or prior to the Closing Date, WHTS shall terminate the Elevator News
Agreement.
(j) Seller is not a "foreign person" as defined in Internal
Revenue Code Section 1445 and any related regulations. At the closing, Buyer
will have no duty to collect withholding Taxes for Seller pursuant to the
Foreign Investment in U.S. Real Property Tax Act of 1980, as amended.
(k) Seller has not (i) made a general assignment for the
benefit of creditors, (ii) filed any voluntary petition in bankruptcy or
suffered the filing of any involuntary petition by its creditors; (iii) suffered
the appointment of a receiver to take possession of all or substantially all of
its assets; or (iv) suffered the attachment or other judicial seizure of all or
substantially all of its assets.
(l) Seller hereby represents that that certain License
Agreement dated August 17, 1999, by and between the City of Santa Clara and WHTS
Freedom Circle Partners, L.L.C., is the document which is referred to as an
"agreement to landscape and maintain" on page 9 of the Project Conditions to
Development Plan, and on page 14, Special Provision No. 11, of the Property
Development Agreement between TishmanSpeyer and City Public Works; and to the
best of Seller's actual knowledge, there is no other agreement with the City of
Santa Clara with respect to the Property regarding maintenance and landscaping
of City-owned property.
Any and all uses of the phrase, "to the best of Seller's actual knowledge" or
other references to Seller's knowledge or Seller's awareness in this Agreement
shall be limited to the actual, present, conscious knowledge of Carl Shannon and
Yolanda Faile (the "Seller Knowledge Individuals") which either of them has, or
should have had after reasonable investigation and inquiry, as to a fact as of
the date hereof. Seller hereby represents and warrants that the Seller Knowledge
Individuals are the persons affiliated with Seller most likely to have knowledge
of the matters which are the subject of the representations. Subject to the
first sentence of this paragraph with respect to reasonable investigation and
inquiry, neither the actual, present, conscious knowledge of any other
individual or entity, nor the constructive knowledge of the Seller Knowledge
Individuals or of any other individual or entity, shall be imputed to the Seller
Knowledge Individuals.
The representations, warranties, covenants and agreements of Seller contained in
this Section 5.1 shall survive the Closing for one (1) year following the
Closing Date (the "Limitation Period") except that the Limitation Period with
respect to the representations and warranties of Seller contained in clauses
(b), (d), (f) and (h) of this Section 5.1 shall be two (2) years. Each such
representation and warranty shall automatically be null and void and of no
further force and effect following the expiration of the applicable Limitation
Period unless, prior to such expiration, Buyer shall have provided Seller with a
written notice alleging that Seller shall be in breach of such representation or
warranty and specifying in reasonable detail the nature of such breach. Any
legal proceeding against Seller for such breach must be commenced, if at all,
within ninety (90) days after the expiration of the applicable Limitation
Period.
Notwithstanding anything to the contrary set forth in this Agreement, Seller's
liability for breach of any covenant, obligation, representation, agreement or
warranty of Seller contained in this Agreement and in any document executed by
Seller pursuant to this Agreement, including any instruments delivered at
Closing, shall, subject to the limitations of survival set forth in this Section
5.1 be limited to claims in excess of One Hundred Thousand Dollars ($100,000) in
the aggregate (but once the aggregate exceeds $100,000, Seller shall be liable
to the full extent of such claims), and Seller's aggregate liability for any and
all claims arising out of any such covenants, obligations, representations,
agreements and warranties shall not exceed Five Million Dollars ($5,000,000).
5.2 Representations And Warranties Of Buyer. Buyer hereby makes
the following representations and warranties to and for the benefit of Seller,
each of which representations and warranties (i) is material and being relied
upon by Seller, (ii) is made as an inducement to Seller to enter into this
Agreement and consummate the transaction contemplated hereby, (iii) is true in
all respects as of the date of this Agreement, (iv) shall be true in all
material respects on the Closing Date, and (v) shall survive the close of
escrow:
(a) Buyer is a Delaware corporation and it has the full
power, authority and legal right to enter into and perform this Agreement. The
execution, delivery and performance of this have been duly authorized by all
necessary action on the part of Buyer.
(b) Buyer has not (i) made a general assignment for the
benefit of creditors; (ii) filed any voluntary petition in bankruptcy or
suffered the filing of any voluntary petition by its creditors; (iii) suffered
the appointment of a receiver to take possession of all or substantially all of
its assets; or (iv) suffered the attachment or other judicial seizure of all or
substantially all of its assets.
(c) Until the Closing Date, Buyer shall continue to pay,
under protest and without waiver or derogation of any of its rights or defenses
to the PMC Lease, all rents and other sums specified as payable by the lessee
under the PMC Lease and to perform, under protest and without waiver or
derogation of any of its rights or defenses to the Lease, all of obligations of
the lessee otherwise specified in the PMC Lease. Payment of such sums and
performance of such obligations by Buyer shall not waive but shall be subject to
all rights of reimbursement and all claims and defenses under the PMC Lease to
which the Tenant is or may be entitled.
The representations and warranties of Buyer contained in this Section 5.2 shall
survive the Closing for two (2) years following the Closing Date.
Notwithstanding anything to the contrary set forth in this Agreement, Buyer's
liability for breach of any covenant, representation or warranty of Buyer
contained in the Agreement, shall be limited to claims in excess of One Hundred
Thousand Dollars ($100,000) in the aggregate, and Buyer's aggregate liability
for any and all claims arising out of any such covenants, representations and
warranties shall not exceed Five Million Dollars ($5,000,000).
5.3 Agreements. Each of Buyer and Seller hereby specifically
agrees as follows:
(a) From the date of this Agreement to the Closing Date,
Seller shall (i) manage, maintain, operate, and service the Property, to the
same standard as existed at the Contract Date so as to keep the Property and
every portion thereof in the same working order and repair as existed on the
Contract Date, (ii) not remove or permit the removal of any Personal Property or
any fixtures from the Property unless such items are replaced immediately with
Personal Property or fixtures of equal or greater value, (iii) comply, in all
material respects, with all Laws and Restrictions with respect to the Property,
(iv) not modify, terminate, cancel, extend, or amend any lease, contracts or
arrangements which will affect the Property or be binding upon the Buyer on or
after the Closing Date, without the consent of Buyer, which consent shall not be
unreasonably withheld, conditioned or delayed, (v) not enter into any leases or
other agreements with respect to the occupancy, maintenance or improvement of
the Property that continue after the Closing Date without Buyer's prior written
approval (which Buyer may withhold in its sole discretion), and (vi) maintain in
full force and effect all of the insurance policies and coverages currently in
effect with respect to the Property. From the date of this Agreement to the
earlier of the Scheduled Closing Date or the termination of this Agreement,
Seller shall not lease or otherwise transfer the PMC Lease, the Property, or any
portion thereof or interest therein (except to a party which has assumed the
obligations of Seller under this Agreement).
(b) Seller shall promptly after the Contract Date turn on
(and shut down daily for approximately 12 hours at night to simulate night time
conditions but not flush more than once per week) all water systems at the
Property, including without limitation hot water, HVAC, heating, and air
conditioning systems, to permit the testing described in Exhibit N hereto.
(c) Seller shall promptly notify Buyer in writing of any
event or circumstance known to Seller which materially adversely affects
Seller's ability to perform its obligations under this Agreement in a timely
manner or the likelihood of timely satisfaction of the conditions precedent set
forth above.
(d) Seller shall promptly notify Buyer in writing if Seller
becomes aware of any fact or occurrence that would render any of its
representations or warranties under Section 5.1 above untrue, or would render it
unable to deliver the Closing Certificate on the Closing Date.
(e) Seller shall use good faith efforts to obtain from the
holder of any deed of trust or other foreclosable document or instrument
currently encumbering the Adjacent Property the subordination set forth in
Section 4(c)(vi). Seller shall reasonably cooperate with Buyer in Buyer's
efforts to obtain the Insurance Policy.
(f) Seller shall pay at the close of escrow fifty percent
(50%) of the cost of the one-time premium for the Environmental Insurance Policy
(the "Insurance Premium") up to a maximum of One Hundred Fifty Thousand Dollars
($150,000) (i.e., up to an Insurance Premium of $300,000) and Buyer shall pay at
the close of escrow the cost of the Insurance Premium in excess of said amount.
(g) Prior to the Closing, Seller shall have the right, to the
extent permitted under and in accordance with the terms of the PMC Lease, to
apply any security deposits held under the PMC Lease in respect of defaults by
Tenant under the PMC Lease. At the Closing, Seller shall deliver to Buyer the
letter of credit held by Seller as security under the Lease and not applied to
defaults as above provided.
6. TITLE, ESCROW AND CLOSING.
6.1 Conditions Of Title.
(a) On the Scheduled Closing Date, Seller shall convey title
to the Property to Buyer free and clear of all liens and encumbrances except the
Permitted Exceptions, the PMC Lease, the Parking Easement Agreement and the
Development Indemnity Agreement.
(b) Seller shall deliver to Escrow Holder a deed in the form
attached hereto as Exhibit E (the "Deed") conveying title to the Property to
Buyer. The Title Company shall issue, or shall be irrevocably bound and
committed to issue, on the Closing date, conditioned only upon payment of the
Title Company's regularly-scheduled premium, the Title Policy.
6.2 Closing Date. Subject to the conditions precedent herein set
forth, through an escrow established with the Title Company, Buyer and Seller
shall consummate this transaction on the Scheduled Closing Date or such other
date upon which Buyer and Seller may mutually agree.
6.3 Deposits And Deliveries By Seller. Subject to the terms and
provisions of this Agreement, unless this Agreement is terminated by Buyer in
accordance with the terms hereof, Seller shall deposit or cause to be deposited
into escrow with the Title Company for delivery to Buyer or such person as Buyer
shall designate, or deliver directly to Buyer outside of escrow, on or before
the Scheduled Closing Date, the following documents duly executed and
acknowledged as required:
(a) The Deed.
(b) A Bill of Sale and Assignment of Intangible Property in
the form attached hereto as Exhibit F transferring the Personal Property and
Intangible Property to Buyer (the "Bill of Sale").
(c) An Assignment and Assumption of Lease in the form
attached as Exhibit G (the "Assignment and Assumption of Lease").
(d) An Affidavit of Non-Foreign Status in form attached
hereto as Exhibit H (the "Non-Foreign Affidavit) and a California Form 593-W
(the "California Affidavit").
(e) A Closing Certificate in the form of attached Exhibit O.
(f) The Amended and Restated Parking Easement Agreement in
the form attached hereto as Exhibit J or as otherwise approved in writing by
Buyer.
(g) Seller's written escrow instructions to close escrow in
accordance with the terms of this Agreement.
(h) The Development Indemnity Agreement in the form attached
hereto as Exhibit S.
(i) A Release in the form of the attached Exhibit U (the
"Release").
(j) The WHTS Modification Indemnity (if the additional
condition precedent described in Section 4(c)(ix) shall apply in accordance with
Section 4(c)(viii)) in the form of Exhibit T.
(k) Evidence reasonably acceptable to Buyer's counsel that
the documents delivered to Buyer by Seller at closing have been duly authorized
by Seller, and duly executed on behalf of Seller.
(l) The letter of credit, and any proceeds thereof, held by
Seller as security under the PMC Lease and not applied to defaults in accordance
with the PMC Lease.
(m) Wire transfer of immediately available funds in the
amount of Seller's obligation pursuant to Section 5.3(f).
(n) Such other documents, resolutions, consents and
affidavits required to effect the valid consummation of the transaction
evidenced by this Agreement.
6.4 Deposits And Deliveries By Buyer. Subject to the conditions
precedent herein set forth, Buyer shall deposit or cause to be deposited into
escrow with the Title Company for delivery to Seller or such person as Seller
shall designate, or deliver directly to Seller outside of escrow, on or before
the Scheduled Closing Date, each of the following documents duly executed and
acknowledged as required and funds:
(a) Wire transfer of immediately available funds, which,
together with the Deposit, shall equal the Purchase Price (the "Purchase
Funds").
(b) Cash, wire transfer, cashier's check, or other
immediately available funds covering Buyer's share of closing costs and
prorations.
(c) The Assignment and Assumption of Contracts and Intangible
Property.
(d) A closing certificate confirming the accuracy and
completeness, in all material respects, as of the Closing Date of each
representation and warranty made herein by Buyer.
(e) A Release in the form of the attached Exhibit U (the
"Release").
(f) Buyer's written escrow instructions to close escrow in
accordance with the terms of this Agreement.
(g) Evidence reasonably acceptable to Seller's counsel that
the documents delivered to Seller by Buyer at closing have been duly authorized
by Buyer, and duly executed on behalf of Buyer.
(h) Such other documents, resolutions, consents and
affidavits required to effect the valid consummation of the transaction
evidenced by this Agreement.
6.5 Closing. Upon satisfaction of the conditions to the Closing,
the parties shall instruct the Title Company to close escrow by concurrently:
(a) Recording and arranging for delivery to Buyer of the duly
executed original Deed.
(b) Issuing to Buyer the Title Policy.
(c) Recording the originals of, and arranging for delivery to
each of Buyer and Seller of one certified copy of the duly executed and
recorded, Parking Easement Agreement and Development Indemnity Agreement and the
subordinations and recognitions thereto required by Sections 4(c)(vi) and (x).
(d) Delivering or arranging for delivery to Buyer of an
original, duly executed Assignment of the PMC Lease, Bill of Sale, the
Non-Foreign Affidavit, the California Affidavit, the Closing Certificate, WHTS
Modification Indemnity (if applicable), the Reliance Letter, and the Release.
(e) Delivering to Seller (or as directed by Seller) the
Purchase Price as adjusted pursuant to the terms of this Agreement.
(f) Taking of all actions, and delivering to Buyer and Seller
of copies of all other documents and things deposited and/or delivered through
escrow as directed by the parties pursuant to their mutually consistent escrow
instruction.
6.6 Prorations. The costs and expenses of the Property shall be
prorated as follows:
(a) Upon delivery of the Release, (i) any and all rents
(including, without limitation, operating expense escalation payments, and real
estate tax escalation payments payable under the PMC Lease) ("Rents") and
amounts payable by Tenant, shall be prorated between Seller and Buyer as of July
31, 2003 (i.e., Buyer shall not be entitled to the return of any July Rents paid
by Tenant); (ii) if any Rents due for periods prior to July 31, 2003 have not
been paid by Tenant, Seller shall receive a credit to the Purchase Price for
such Rents; and (iii) Buyer shall receive a credit towards the Purchase Price
for any overpayments or prepaid Rents. Any proration of rent or other sums shall
be on the basis of the actual number of days of the month which shall have
elapsed and a 365 day year.
(b) All items subject to proration pertaining to the period
prior to the Closing Date shall be credited to Seller, and all such prorations
pertaining to the period on or following the Closing Date shall be credited to
Buyer. Seller, Buyer and Title Company shall cooperate to produce prior to the
Closing Date a schedule of prorations to be made as of the Closing Date as
complete and accurate as reasonably possible. All prorations which can be
liquidated accurately or reasonably estimated as of the Closing Date shall be
made in escrow on the Closing Date. All other prorations, and adjustments to
initial estimated prorations, shall be made by Buyer and Seller with due
diligence and cooperation within 30 days following the Closing Date, or such
later time as may be required to obtain necessary information for proration, by
cash payment to the party yielding a net credit from such prorations from the
other party. Such cash payment shall be made within ten (10) business days of
demand for payment by the party entitled to receive such payment.
(c) The provisions of this Section 6.6 shall survive the
close of escrow.
6.7 Closing Costs. Seller shall pay (i) the cost of the County of
Santa Clara transfer tax, (ii) the basic CLTA portion (with no endorsements) of
the title insurance premiums for the title insurance described in the Title
Commitment, (iii) one-half of all escrow fees, and (iv) Seller's legal fees and
costs incurred in connection with the contemplated transaction. Buyer shall pay
(i) the balance of the title insurance premium (including costs for
endorsements), (ii) recording fees, (iii) one-half of all escrow fees, (iv)
Buyer's legal fees and costs incurred in connection with the contemplated
transaction, and (v) all costs and expenses incurred in connection with any
financing obtained by Buyer, including without limitation, loan fees, mortgage
recording taxes, financing costs and lender's legal fees. Any applicable city
transfer tax shall be shared equally by Buyer and Seller. All other closing
costs shall be borne by Seller and/or Buyer in the manner which is customary in
the county where the Land is located. Notwithstanding the foregoing, if close of
escrow fails to occur as a consequence of the default by a party, then such
party shall pay all escrow fees and cancellation fees owing to the Title
Company.
6.8 Possession. Right to possession of the Property shall transfer
to Buyer on the Closing Date subject to the PMC Lease.
6.9 Filing Of Reports. Title Company shall be solely responsible
for the timely filing of any reports or returns required pursuant to the
provisions of Section 6045(e) of the Internal Revenue Code of 1986 (and any
similar reports or returns required under any state or local laws) in connection
with the closing of the transaction contemplated in this Agreement.
6.10 Cooperation. Without further consideration, each of Seller
and Buyer shall execute, acknowledge and deliver to the other party on or after
the Closing Date any and all other instruments or documents, and do and perform
any other acts which may be required or which the other party may reasonably
request in order to fully assign, transfer and/or convey to Buyer, and vest in
Buyer, the Property, and each and every part and component thereof.
7. Liquidated Damages. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE
THAT, IN THE EVENT THE TRANSACTION PROVIDED FOR IN THIS AGREEMENT FAILS DUE TO A
DEFAULT BY BUYER OF AN OBLIGATION TO PURCHASE THE PROPERTY AFTER (i) ALL OF THE
CONDITIONS TO THE BUYER'S OBLIGATION TO PURCHASE THE PROPERTY SHALL HAVE BEEN
SATISFIED, OR WAIVED IN WRITING BY BUYER, AND (ii) THE SELLER SHALL HAVE
PERFORMED, TENDERED, OR OFFERED TO TENDER, PERFORMANCE OF ALL OF ITS
OBLIGATIONS, SELLER'S DAMAGES WOULD BE DIFFICULT OR IMPOSSIBLE TO DETERMINE AND
THE AMOUNT OF THE DEPOSIT IS THE PARTIES' BEST AND MOST ACCURATE ESTIMATE OF THE
DAMAGES SELLER WOULD SUFFER. ACCORDINGLY, THE PARTIES AGREE THAT, IN SUCH EVENT
THE DEPOSIT SHALL BE PAID BY TITLE COMPANY TO SELLER AS LIQUIDATED DAMAGES UNDER
THE FOREGOING CONDITIONS, AND THAT SUCH PAYMENT IS REASONABLE UNDER THE
CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT. BUYER AND SELLER AGREE
THAT THE SELLER'S RIGHT TO RETAIN THE DEPOSIT SHALL BE THE SOLE AND EXCLUSIVE
REMEDY OF SELLER IN THE EVENT OF SUCH A BREACH OF THIS AGREEMENT BY BUYER
FOLLOWING SATISFACTION OF SUCH CONDITIONS.
----------------------------- ----------------------------
BUYER SELLER
8. Damage And Destruction; Condemnation. Seller shall notify Buyer
immediately of the occurrence of any damage to or destruction of the Property,
or the institution or maintenance of any condemnation or similar proceedings
with respect to the Property prior to the Closing Date of which Seller is aware.
In the event of any damage to or destruction of the Property prior to the
Closing Date for which the cost to repair in the aggregate exceeds $500,000, or
in the event any condemnation or similar proceedings are instituted or
maintained prior to the Closing Date, Buyer at its option either (i) may
terminate this Agreement by written notice to Seller prior to the Scheduled
Closing Date, or (ii) may consummate the purchase evidenced by this Agreement.
With respect to any damage to or destruction of the Property prior to the
Closing Date for which the cost to repair does not in the aggregate exceed
$500,000, Buyer shall have no right to terminate this Agreement pursuant to the
preceding sentence, this Agreement shall continue in accordance with its terms
and the Purchase Price shall be reduced by the Restoration Funds (as defined
below). As used herein, "Restoration Funds" shall mean an amount equal to the
actual costs and expenses directly and indirectly related to the restoration of
the Property, including the costs of permits less the actual proceeds of
insurance assigned to Buyer at the Closing, but not exceeding the estimated cost
of the restoration as reasonably determined and agreed upon by Buyer and Seller
based on bids for a guaranteed maximum price contract for the restoration, which
may include appropriate contingencies for cost overruns reasonably agreed upon
by Buyer and Seller. If Buyer and Seller do not reasonably agree on the amount
of the Restoration Funds and reasonable contingencies in connection therewith
prior to the Closing Date, then Buyer shall have the right to terminate this
Agreement as described above on or before the Closing Date. If this Agreement is
not terminated by Buyer pursuant to this Section 8, then (i) Buyer shall accept
possession of the Property in such damaged condition and/or subject to such
condemnation or other proceeding on the Closing Date, (ii) as of the Closing
Date, Seller shall assign to Buyer all insurance proceeds or condemnation
proceeds received or to be received by Seller as a result of such damage or
taking, and (iii), if applicable, the Purchase Price shall be reduced by the
amount of the Restoration Funds. If this Agreement is so terminated by Buyer,
then Buyer shall be entitled to an immediate return of the Deposit.
9. Commissions. Each party to this Agreement warrants to the other
that, except to the extent payable solely by the warranting party, no person or
entity can properly claim a right to a real estate commission, real estate
finder's fee, real estate acquisition fee or other real estate brokerage-type
compensation (collectively, "Real Estate Compensation") based upon the acts of
that party with respect to the transaction contemplated by this Agreement, and
each party hereby agrees to indemnify, defend and protect the other against and
to hold the other harmless from any loss, cost or expense (including but not
limited to attorneys' fees and returned commissions) resulting from any claim
for Real Estate Compensation by any person or entity based upon such acts.
10. General Provisions.
10.1 Notices. Any notice required or permitted to be given under
this Agreement shall be in writing and (i) personally delivered, (ii) sent by
United States mail, registered or certified mail, postage prepaid, return
receipt requested, (iii) sent by Federal Express or similar nationally
recognized overnight courier service, or (iv) transmitted by facsimile with a
hard copy sent within one (1) business day by any of the foregoing means, and in
all cases addressed as follows, and such notice shall be deemed to have been
given upon the date of actual receipt or delivery (or refusal to accept
delivery) at the address specified below (or such other addresses as may be
specified by notice in the foregoing manner) as indicated on the return receipt
or air bill:
TO SELLER: Tishman Speyer Properties, L.P.
525 Market Street, Suite 3720
San Francisco, California 94105
Attention: Carl Shannon
Fax: (415) 536-4139
with a copy to:
Tishman Speyer Properties
520 Madison Avenue
New York, New York 10022
Attention: General Counsel
Fax: (212) 935-8239
and
Schulte Roth & Zabel LLP
919 Third Avenue
New York, New York 10022
Attention: Jeffrey A. Lenobel, Esq.
Fax: (212) 593-5955
and
Whitehall Street Real Estate
Limited Partnership IX
85 Broad Street
New York, New York 10004
Attention: Patricia Geery
Fax: (212) 357-5505
With a copy to:
Mr. Todd Williams Goldman, Sachs &
Co. 100 Crescent Court, Suite 1000
Dallas, TX 75201 Fax: (214) 855-6305
Stone Street Real Estate Fund 1998, L.P.
85 Broad Street
New York, New York 10004
Fax: (212) 357-5505
Bridge Street Real Estate Fund 1998, L.P.
85 Broad Street
New York, New York 10004
Fax: (212) 357-5505
Stone Street WHTS Corp.
85 Broad Street
New York, New York 10004
Fax: (212) 357-5505
TO BUYER: PMC-Sierra, Inc.
8555 Baxter Place
Burnaby, British Columbia V5A 4V7
Canada
Attn: Manager, Corporate Real Estate
and Facilities
Fax: (604) 415-6161
with a copy to: Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, California 94304
Attention: Norman Cruz, Esq.
Fax: (650) 493-6811
10.2 Entire Agreement; No Modifications. This Agreement, together
with the schedules and exhibits attached hereto, incorporates all agreements,
warranties, representations and understandings between the parties to the
Agreement with respect to the subject matter hereof and constitutes the entire
agreement of Seller and Buyer with respect to the purchase and sale of the
Property. Any prior or contemporaneous correspondence, memoranda,
understandings, offers, negotiations and agreements, oral or written, are merged
herein and replaced in total by this Agreement and the exhibits hereto and shall
be of no further force or effect. This Agreement may not be modified or amended
except in a writing signed by Seller and Buyer.
10.3 Time. Time is of the essence in the performance of the
parties' respective obligations set forth in this Agreement.
10.4 Attorneys' Fees. In the event any action or proceeding at law
or in equity between Buyer and Seller (including an action or proceeding between
Buyer and the trustee or debtor in possession while Seller is a debtor in a
proceeding under the Bankruptcy Code (Title 11 of the United States Code) or any
successor statute to such Code) to enforce or interpret any provision of this
Agreement or to protect or establish any right or remedy of either Buyer or
Seller hereunder, the unsuccessful party to such action or proceeding shall pay
to the prevailing party all costs and expenses including, without limitation,
reasonable attorneys' and paralegals' fees and expenses, incurred by such
prevailing party, in such action or proceeding and in any appeal in connection
therewith, whether or not such action, proceeding or appeal is prosecuted to
judgment or other final determination, together with all costs of enforcement
and/or collection of any judgment or other relief.
10.5 Specific Performance. The parties understand and agree that
the Property is unique and for that reason, among others, Buyer will be
irreparably damaged in the event that this Agreement is not specifically
enforced. Accordingly, in the event of any breach or default in or of this
Agreement or any of the warranties, terms or provisions hereof by Seller, Buyer,
in addition to a claim for damages for such breach or default (subject, however,
to the limitations set forth in Section 5.1), and in addition and without
prejudice to any right or remedy available at law or in equity, shall have the
right (i) to seek to obtain specific performance of Seller's obligations
hereunder, provided that any action for specific performance shall be commenced
within sixty (60) days after such default. If Buyer elects to seek specific
performance of this Agreement, then as a condition precedent to any suit for
specific performance, Buyer shall on or before the Closing Date, time being of
the essence, fully perform all of its obligations hereunder which are capable of
being performed (other than the payment of the Purchase Price, which shall be
paid as and when required by the court in the suit for specific performance).
10.6 Successors And Assigns. Except as permitted by this Section
10.6, this Agreement may not be assigned by Seller or Buyer without the prior
written consent of the other party which may be granted or withheld by the other
party in its sole discretion. Subject to the foregoing provision, this Agreement
shall inure to the benefit of and be binding upon the parties to this Agreement
and their respective successors and assigns. Buyer shall have the right to
assign its rights and obligations under this Agreement to an affiliate of Buyer,
provided that the assignee assumes for Seller's benefit all of Buyer's
obligations hereunder. For the purposes of this Section 10.6, "affiliate of
Buyer" shall mean an entity controlling, controlled by or under common control
with Buyer. "Control" shall mean the possession, directly or indirectly, of the
power to direct the management and policies of an entity, whether through the
ownership of voting securities, by contract or otherwise.
10.7 Counterparts. This Agreement may be executed in one or more
counterparts and each such counterpart shall be deemed to be an original; all
counterparts so executed shall constitute one instrument and shall be binding on
all of the parties to this Agreement notwithstanding that all of the parties are
not signatories to the same counterpart.
10.8 Construction. This Agreement shall be governed by and
construed under the laws of the State of California. The parties acknowledge
that each party and its counsel have reviewed and revised this Agreement and
that no rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall be employed in the interpretation of
this Agreement or any schedules or exhibits to it or any document executed and
delivered by either party in connection with this Agreement. All captions in
this Agreement are for reference only and shall not be used in the
interpretation of this Agreement or any related document. If any provision of
this Agreement shall be determined to be illegal or unenforceable, such
determination shall not affect any other provision of this Agreement and all
such other provisions shall remain in full force and effect.
10.9 Confidentiality. Seller shall keep all information obtained
from or about Buyer or the transaction contemplated by this Agreement strictly
confidential and will not disclose any such information to any other person or
entity without first obtaining the prior written consent of Buyer.
Notwithstanding anything to the contrary contained in this Agreement, Buyer and
Buyer's Agents and Seller and Seller's Agents may disclose the tax treatment
(i.e., the purported or claimed Federal income tax treatment) or the tax
structure (i.e., any fact that may be relevant to understanding such treatment)
of the transaction contemplated by this Agreement, and all materials of any kind
(including opinions or other tax analyses) provided by Seller to Buyer relating
to such tax treatment and tax structure. Furthermore, each of Buyer and Seller
acknowledges and agrees that it has not made or provided a statement to the
other party with respect to the tax consequences for the other party of the
transactions contemplated by the Purchase Agreement.
10.10 Exculpation. Buyer agrees that it does not have and will not
have any claims or causes of action against any disclosed or undisclosed
officer, director, employee, trustee, shareholder, partner, member, principal,
parent, subsidiary or other affiliate of Seller, including, without limitation,
Tishman Speyer Properties, L.P. and Goldman, Sachs & Co., or any officer,
director, employee, trustee, shareholder, member, partner or principal of any
such parent, subsidiary or other affiliate (collectively, "Seller's
Affiliates"), arising out of with this Agreement or the transactions
contemplated hereby. Buyer agrees to look solely to Seller and its assets for
the satisfaction of any liability or obligation arising under this Agreement or
the transactions contemplated hereby, or for the performance of any of the
covenants, warranties or other agreements contained herein, and further agrees
not to sue or otherwise seek to enforce any personal obligation against any of
Seller's Affiliates with respect to any matters arising out of this Agreement or
the transactions contemplated hereby. The provisions of this Section 10.10,
however, shall not apply to Tishman Speyer/Travelers Real Estate Venture, L.P.
and Whitehall Street Real Estate Limited Partnership IX (collectively, the
"Members") to the extent of the amount any of the Members has received from the
proceeds of the transactions which is the subject of this Agreement, if the
remaining funds available to Seller to satisfy the obligations of the Seller
pursuant to this Agreement or the transactions contemplated hereby are not at
least equal to Five Million Dollars ($5,000,000) or such lower amount of
liability or potential liability as the Seller may have under such agreements.
The provisions of this Section 10.10 shall survive the termination of this
Agreement and the Closing. This Section 10.10 will not apply to the parties to
the Parking Easement or the Development Indemnity Agreement to the extent such
claim or cause of action relates solely to the Parking Easement Agreement or the
Development Indemnity Agreement, as applicable.
IN WITNESS WHEREOF, Buyer and Seller have executed this Agreement as of
the date and year first written above:
SELLER:
WHTS FREEDOM CIRCLE PARTNERS II, L.L.C.,
a Delaware limited liability company
By: Tishman Speyer/Travelers Real Estate
Venture, L.P., a Delaware limited
Partnership
By: ____________________________________
Name:
Title:
and
By: Whitehall Street Real Estate Limited
Partnership IX, a Delaware limited
liability partnership
By: Whitehall Advisors, L.L.C. IX, a
Delaware limited liability company, its
general partner
By: Whitehall Street IX/X, Inc.,
a Delaware corporation,
its managing member
By:_______________________
Name:
Title:
BUYER:
PMC-SIERRA, INC.,
a Delaware corporation
By: _____________________________________
Name:
Title: