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EXHIBIT 10.14
AGREEMENT OF PURCHASE AND SALE
BETWEEN
CONNECTICUT GENERAL LIFE INSURANCE COMPANY, a Connecticut
corporation, on behalf of its Closed-End Real Estate Fund II,
SELLER
AND
INTEGRATED SYSTEMS, INC., a California corporation, PURCHASER
215 Moffett Park Drive
Sunnyvale, California
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TABLE OF CONTENTS
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Article 1 Property 1
Article 2 Purchase Price and Deposits 3
Article 3 Failure to Close 5
3.1 Purchaser's Default 5
3.2 Seller's Default 5
Article 4 Closing and Transfer of Title 6
4.1 Closing 6
4.2 Closing Procedure 7
4.3 Purchaser's Performance 8
4.4 Evidence of Authority; Miscellaneous 8
Article 5 Prorations of Rents, Taxes, Etc. 8
Article 6 Purchasers Inspections and Contingencies 10
6.1 Document Inspection 10
6.2 Physical Inspection 11
6.3 Feasibility Period 12
6.4 Survey Contingency 13
6.5 Title Contingency 14
6.6 Radius Lease Termination Contingency 16
Article 7 Loss due to Casualty or Condemnation 16
7.1 Loss due to Condemnation 16
7.2 Loss due to Casualty 17
Article 8 Maintenance of the Property 18
Article 9 Broker 19
Article 10 Representations and Warranties 20
10.1 Limitations on Representations
and Warranties 20
10.2 Representations and Warranties 21
10.3 Seller's Knowledge 23
10.4 Survival 23
Article 11 Intentionally Omitted 24
Article 12 Assignment 24
Article 13 Notices 24
Article 14 Expenses 26
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TABLE OF CONTENTS (Continued)
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Article 15 Miscellaneous 26
15.1 Successors and Assigns 26
15.2 Gender 27
15.3 Captions 27
15.4 Construction 27
15.5 Entire Agreement 27
15.6 Recording 27
15.7 No Continuance 28
15.8 Time of Essence 28
15.9 Original Document 28
15.10 Governing Law 28
15.11 Acceptance of Offer 28
15.12 Confidentiality 29
15.13 Surviving Covenants 29
15.14 Intentionally Omitted 29
15.15 Attorneys' Fees 29
15.16 ERISA 30
Exhibit A - Description of Land
Exhibit B - Intentionally Omitted
Exhibit C - Grant Deed
Exhibit D - Bill of Sale
Exhibit E - Service and Maintenance Contracts
to be Assumed by Purchaser
Exhibit F - Indemnification Agreement
Exhibit G - Form of Seller's Affidavit of
Non-Foreign Status
Exhibit H - Pending Litigation
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AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE is made by and between CONNECTICUT
GENERAL LIFE INSURANCE COMPANY, a Connecticut corporation, on behalf of its
Closed-End Real Estate Fund II ("Seller"), and INTEGRATED SYSTEMS, INC., a
California corporation ("Purchaser"), as of the "Effective Date" (as defined
below).
Article I.
Property
Seller hereby agrees to sell, and Purchaser hereby agrees to buy, all
of the following property: (a) a parcel of real property (the "Land"), located
in the City of Sunnyvale, County of Santa Clara, State of California, more
particularly described on Exhibit A attached to this Agreement; (b) the
buildings and other improvements located on the Land, including an office
building of approximately 152,844 square feet generally known as 215 Moffett
Park (the "Improvements") (the Land and Improvements are referred to herein,
collectively, as the "Real Property"); and (c) all fixtures, equipment, and
other personal property (both tangible and intangible, including, without
limitation, any service and maintenance agreements applicable thereto which are
either approved by Purchaser or which by its terms does not permit Seller to
terminate the agreement without cause or which cannot be terminated by its
terms in the time period between the expiration of the Feasibility Period and
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Closing, a list of which are attached hereto as Exhibit E, other than the
property management agreement, which shall be terminated) owned by Seller and
contained in or related to the Improvements, including any rights of Seller to
any tangible personal property left or abandoned in the Improvements by Radius
(as hereinafter defined) (the "Personal Property") (collectively, the Real
Property and the Personal Property are sometimes referred to herein as the
"Property").
The Improvements are currently occupied by a single tenant, Radius,
Inc. ("Radius"), under a Lease Agreement between Seller and Radius'
predecessor-in-interest, SuperMac Technology, Inc. ("SuperMac") dated as of
November 13, 1992, as amended by a First Amendment to Lease Agreement dated as
of May 4, 1993, by a Second Amendment to Lease Agreement dated as of December
21, 1993, and by a Third Amendment to Lease Agreement dated as of May 2, 1995
(collectively, the "Radius Lease"). Radius has acquired all of the outstanding
stock of SuperMac and succeeded to all of the rights and assumed all of the
obligations under the Radius Lease. Seller and Radius have currently
negotiating a Lease Termination Agreement (the "Lease Termination Agreement")
which shall be entered into prior to Closing and contingent upon the Closing of
the sale of the Real Property from Seller to Purchaser pursuant to this
Agreement, whereby at the time of the sale contemplated herein there shall be
no tenant leases relating to the Improvements. The parties agree that Purchaser
will not be a party to the Lease Termination Agreement and that Purchaser shall
not in any way be liable or responsible for the obligations of
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Radius or Seller under the Lease Termination Agreement. Radius and Purchaser
are concurrently negotiating an agreement (the "Radius/ISI Agreement") to set
forth an exit strategy for Radius whether through a lease by Radius of a
portion of the Improvements from Purchaser and to use certain personal property
of Purchaser after the Closing, or some other exit arrangement, contingent on
the Closing taking place. The parties agree that Seller will not be a party to
the Radius/ISI Agreement and that Seller shall not in any way be liable or
responsible for the obligations of Radius or Purchaser under the Radius/ISI
Agreement. Seller and Purchaser both covenant to use best efforts to
respectively negotiate and agree upon the terms of the Lease Termination
Agreement and the Radius/ISI Agreement.
Article II.
Purchase Price and Deposits
The purchase price which the Purchaser agrees to pay and the Seller
agrees to accept for the Property shall be the sum of Eleven Million, Nine
Hundred Twenty-One Thousand, Eight Hundred Thirty-Two Dollars ($11,921,832)
(hereinafter referred to as the "Purchase Price"), subject to adjustment as
provided in Article V hereof, payable as follows:
(a) An earnest money deposit ("Deposit") of Fifty Thousand
Dollars ($50,000), in cash, to be deposited with Santa Clara Land
Title Company (the "Title Company") within three (3) business days after
execution hereof by both
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parties, such amount to be held in escrow and deposited in an
interest-bearing account;
(b) An additional earnest money deposit (the "Additional
Deposit") or Fifty Thousand Dollars ($50,000), in cash, to be deposited
by Purchaser with the Title Company, within three (3) business days
after expiration of the Feasibility Period (hereinafter defined), such
amount to be held in escrow and deposited in an interest-bearing
account (the Earnest Deposit and the Additional Deposit, with interest
thereon, will be referred to hereinafter, collectively, as the
"Deposit"); and
(c) The balance of the Purchase Price shall be paid at time of
Closing by Federal wire transfer, with the transfer of funds to Seller
to be completed on the day of the Closing.
The Deposit shall be paid to Seller at the Closing as a credit against
the Purchase Price. Purchaser shall provide the Title Company with its tax
identification number, and all interest shall be for Purchaser's account for
tax purposes.
In addition to the Deposit, Purchaser shall deposit five fully executed
copies of this Agreement with the Title Company immediately after both parties
have executed it. The date of such deposit shall be acknowledged by the Title
Company on all copies, and such date shall be the "Effective Date" of this
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Agreement. The Title Company shall retain one copy of this Agreement and
deliver two copies hereof to each of Purchaser and Seller.
Article III.
Failure to Close
3.1 Purchaser's Default. IF SELLER HAS COMPLIED WITH ALL OF THE
COVENANTS AND CONDITIONS CONTAINED HEREIN AND IS READY, WILLING AND ABLE TO
CONVEY THE PROPERTY IN ACCORDANCE WITH THIS AGREEMENT AND PURCHASER FAILS TO
CONSUMMATE THIS AGREEMENT AND TAKE TITLE, THEN THE PARTIES HERETO RECOGNIZE AND
AGREE THAT THE DAMAGES THAT SELLER WILL SUSTAIN AS A RESULT THEREOF WILL BE
SUBSTANTIAL, BUT DIFFICULT IF NOT IMPOSSIBLE TO ASCERTAIN. THEREFORE, THE
PARTIES AGREE THAT, IN THE EVENT OF PURCHASER'S DEFAULT, SELLER SHALL, AS ITS
SOLE REMEDY, BE ENTITLED TO RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES, AND
NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS WITH RESPECT TO THE
OTHER UNDER THIS AGREEMENT, EXCEPT FOR THE SURVIVING COVENANTS (HEREINAFTER
DEFINED).
Seller's Initials: ________ Purchaser's Initials: ________
3.2 Seller's Default. In the event that Purchaser has complied with
all of the covenants and conditions contained herein and is ready, willing and
able to take title to the Property in accordance with this Agreement, and
Seller fails to
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consummate this Agreement and convey title as set forth herein, then Purchaser
may, as its sole remedy, elect to either (i) terminate this contract and
recover the Deposit and all expenses incurred by it in connection with this
Agreement or (ii) bring an action against Seller for specific performance of
this Agreement.
Article IV.
Closing and Transfer of Title
4.1 Closing. The parties hereto agree to conduct a closing of this
sale (the "Closing") on or before the date thirty (30) days after the
expiration of the Feasibility Period as defined in section 6.3 below ("Closing
Date") in the principal office of the Title Company, or at such other place as
may be agreed upon by the parties hereto. This Agreement shall terminate if
transfer of title is not completed by the Closing Date (unless such failure to
close is due to Seller's default, the date for Closing is extended pursuant to
any provision hereof, including, without limitation, the matters described in
Sections 6.3, 6.4, 6.5 and Article VII hereof, or the date for Closing is
extended by agreement of the parties, which agreement shall be confirmed in
writing). Notwithstanding the foregoing, or any other provision herein, Seller
shall have no obligation to close if the closing and transfer of title does not
occur on or prior to April 30, 1996, unless such failure to close is due solely
to the default of Seller.
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4.2 Closing Procedure. Seller shall execute and deliver or cause to
be delivered (a) a Grant Deed limiting the Seller's warranties to title matters
claimed by, through or under Seller but not otherwise, in the form attached
hereto as Exhibit C, proper for recording and acceptable to the Title Company,
conveying Seller's interest in the Real Property to Purchaser; (b) a Bill of
Sale in the form attached hereto as Exhibit D, dated as of the date of Closing
conveying to Purchaser any and all Personal Property; (c) an Owner's Title
Insurance Policy (the "Owner's Title Policy") dated no earlier than the date of
the recording of the Deed, in the full amount of the Purchase Price, insuring
that good and indefeasible fee simple title to the Property is vested in
Purchaser, containing no exceptions to such title other than the standard
printed exceptions (provided, however, that (i) the printed survey exception
must be deleted, except for matters shown on the Survey and either approved by
Purchaser or as to which objection has been waived by Purchaser, and (ii) the
exception as to ad valorem taxes shall be limited to taxes for the current and
subsequent years), those items listed on Schedule "B" of the Title Commitment
that either were approved by Purchaser or as to which objection has been waived
by Purchaser; (d) to the extent in Seller's possession or under Seller's
control, the originals of all as-built plans and specifications and maintenance
and service contracts that are to be assumed; (e) an indemnification agreement
(the "Indemnification Agreement") in the form attached as Exhibit F, dated the
date of Closing; (f) an affidavit that Seller is not a "foreign person" in the
form attached as Exhibit G; (g) a master
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key or duplicate key for all locks in the Improvements; (h) to the extent in
the possession of Seller or Seller's property management company, all
construction and maintenance records; and (i) the Lease Termination Agreement.
4.3 Purchaser's Performance. At the Closing, Purchaser will cause
the Purchase Price to be delivered to the Title Company, will execute and
deliver the Indemnification Agreement, the Bill of Sale and the Radius/ISI
Agreement.
4.4 Evidence of Authority; Miscellaneous. Both parties will deliver
to the Title Company and each other such evidence or documents as may
reasonably be required by the Title Company or either party hereto evidencing
the power and authority of Seller and Purchaser and the due authority of, and
execution and delivery by, any person or persons who are executing any of the
documents required hereunder in connection with the sale of the Property. Both
parties will execute and deliver such other documents as are reasonably
required to effect the intent of this Agreement.
Article V.
Prorations of Taxes, Etc.
Real estate taxes for the year of closing shall be prorated as of the
date of Closing either using actual tax figures or, if actual figures are not
available, then using as a basis for said proration the most recent assessed
value of the Real Estate
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multiplied by the current tax rate, with a subsequent cash adjustment to be
made between Purchaser and Seller when actual tax figures are available.
Personal property taxes, annual permit or inspection fees, sewer charges and
other expenses normal to the operation and maintenance of the Property shall
also be prorated as of the date of Closing. Because there will be no tenants as
of Closing, there will be no prorations of rent.
Final readings on all gas, water and electric meters shall be made as
of the date of closing, if possible. If final readings are not possible, gas,
water and electricity charges will be prorated based on the most recent period
for which costs are available. Any deposits made by Seller with utility
companies shall be returned to Seller. Purchaser shall be responsible for
making all arrangements for the continuation of utility services.
All items (including taxes) that are not subject to an exact
determination shall be estimated by the parties. When any item so estimated is,
after the Closing capable of exact determination, the party in possession of
the facts necessary to make the determination shall send the other party a
detailed report on the exact determination so made and the parties shall adjust
the prior estimate within thirty (30) days after both parties have received
said reports.
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ARTICLE VI.
Purchaser Inspections and Contingencies
6.1 Document Inspection. Seller has made or will make available within
ten (10) days from the Effective Date of this Agreement the following items
relating to the Real Property for review by Purchaser:
(1) Copies of all service and maintenance agreements, including those
to be assumed by Purchaser as listed on Exhibit E hereto;
(2) Copies of any certificates of occupancy, licenses, permits and
approvals (to the extent in Seller's or its property manager's
possession);
(3) Books and records of the Property in Seller's or its property
manager's possession including copies of tax and utility bills and
all operating reports for the last two years, any governmental
notices, copies of any correspondence or memoranda pertaining to
the condition of the Property or the need for any repair, and
copies of any estoppel certificates;
(4) Copies of any environmental or engineering studies or feasibility
studies in Seller's possession, Seller's existing survey, and all
plans, drawings and specifications and "as-built" plans or drawings
in Seller's possession; and
(5) a copy of Seller's policy of lender's title insurance.
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If Seller or its management company is aware of any information of the
kind described in subsections 1-7 which is not in its possession, Seller will
so notify Purchaser when it delivers the available materials. Seller or its
management company will also promptly deliver any other material in its
possession which reasonably pertains to the Property upon written request of
Purchaser.
Purchaser agrees that if for any reason the Closing is not consummated,
Purchaser will immediately return to Seller all materials furnished to
Purchaser pursuant to this Section 6.1.
6.2 Physical Inspection. In addition to the items set forth in
Section 6.1, Seller will make the Property available for inspection by
Purchaser and Purchaser shall, at Purchaser's risk, conduct an engineering
and/or market and economic feasibility study of the Property and undertake such
physical inspection of the Property as Purchaser deems appropriate as soon as
possible after the Effective Date of this Agreement. Such inspection shall be
conducted at reasonable times upon reasonable oral or written notice to
Seller's property manager. Seller shall have the right to designate a
representative to accompany Purchaser's employees, agents, and independent
contractors on any such inspections.
Purchaser hereby agrees to pay, protect, defend, indemnify and save
Seller harmless against all liabilities, obligations, claims (including
mechanic's lien claims), damages, penalties
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causes of action, judgments, costs and expenses (including, without limitation,
attorneys' fees and expenses) imposed upon, incurred by or asserted against
Seller in connection with or arising out of the entry upon the Real Property by
Purchaser's employees, agents or independent contractors and the actions of
such persons on the Real Property. In the event any part of the Property is
damaged or excavated by Purchaser, its employees, agents or independent
contractors, Purchaser agrees in the event its purchase hereunder is not
consummated, to make such additional payments to Seller as may be reasonably
required to return the Property to its condition immediately prior to such
damage or excavation or, at Seller's option, to cause such work to be done.
Notwithstanding any provision to the contrary herein, Purchaser's obligations
under this subparagraph shall survive the expiration or termination of this
Agreement, and shall survive Closing.
6.3. Feasibility Period. Purchaser shall have a period ending 30 days
after the Effective Date of this Agreement to conduct its inspection of the
documents delivered in accordance with Section 6.1 and to conduct a physical
inspection of the Property as set forth in Section 6.2 (the "Feasibility
Period"). On or before the last day of the Feasibility Period, Purchaser may, in
its sole discretion without obligation to specify which aspect of its inspection
was unsatisfactory, terminate this Agreement by providing a written notice to
Seller so providing. Upon receipt of such notice, this Agreement shall terminate
and Seller shall instruct the Title Company to return the Deposit to
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Purchaser, and neither party shall have any obligation to the other, except for
the Surviving Covenants. If Purchaser fails to provide such notice of
termination on or before the last day of the Feasibility Period, Purchaser
shall be deemed to have approved such inspections and this contract shall
remain in full force and effect.
6.4 Survey Contingency. Purchaser's obligation to purchase the
Property is subject to its receipt, within fifteen (15) days of the Effective
Date of this Agreement, of a survey of the Real Property by a registered
surveyor (the "Survey"). The Survey shall show the location of all improvements,
structures, driveways, parking areas, easements, rights of way, and any
encroachments and shall specify whether the Property is within the 100 year
flood plain or flood way. The Survey shall further set forth a legal description
of the boundaries of the Real Property in accordance with local practices.
Purchaser shall have until the earlier to occur of the last day of the
Feasibility Period or the date fifteen (15) days after the receipt of the
Survey by Purchaser to object in writing to the Survey, including any objection
to the boundaries set forth in the Survey and to the legal description. This
contingency shall be deemed satisfied or waived if Seller has not received
written notice of Purchaser's objection before such date. Any such written
notice shall state all of Purchaser's objections with specificity. Upon receipt
of such notice, Seller may, but shall not be obligated to, cure such
objections. If Seller cures
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such objections within fifteen (15) days, or, if such objections are such that
they cannot be cured within fifteen (15) days and Seller has commenced curing
such objections and thereafter diligently proceeds to perfect such cure (but in
no event beyond forty-five (45) days unless agreed to by Purchaser), then this
Agreement shall continue in force and effect, and the Closing Date shall be
adjusted accordingly. If Seller is unable to, or chooses not to, cure such
objections within the time permitted, this Agreement shall terminate, Seller
shall instruct the Title Company to return the Deposit to Purchaser, and neither
party shall have any further obligations hereunder except for the Surviving
Covenants. Notwithstanding the foregoing, however, Purchaser may waive such
objections that Seller is unable to or chooses not to cure, and upon receipt by
Seller of such waiver in full from Purchaser within ten (10) days of notice from
Seller that it is unable or chooses not to cure such objections, this Agreement
shall remain in full force and effect with no reduction in the Purchase Price.
If requested by Seller, Purchaser will confirm in writing whether this
survey contingency has been satisfied and, if so, the date on which it was
satisfied.
6.5. Title Contingency. Purchaser's obligation to purchase the
Property is subject to its receipt of a preliminary title report (the "Title
Report"), issued by the Title Company, together with legible copies of all
items and documents referred to in the Title Report. The Title Report and
accompanying
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documents shall be delivered by Seller within fifteen (15) days after the
Effective Date of this Agreement. Upon receipt of the Title Report and
accompanying documents by Purchaser, Purchaser shall have until the earlier to
occur of the last day of the Feasibility Period or the date fifteen (15) days
after receipt of all such items to state any objections in writing. This
contingency shall be deemed satisfied or waived if such written notice of
objection is not received by Seller before such date. Such written notice of
objection shall state all of Purchaser's objections with specificity. Upon
receipt of such notice, Seller may, but shall not be obligated to, cure such
objection. If Seller cures such objections within 15 days, or, if such
objections are such that they cannot be cured within 15 days and Seller has
commenced curing such objections and thereafter diligently proceeds to perfect
such cure (but in no event beyond forty-five (45) days unless agreed to by
Purchaser), then this Agreement shall continue in full force and effect and the
Closing Date shall be adjusted accordingly. If Seller is unable or chooses not
to cure such objections within the time permitted, then this Agreement shall
terminate, and Seller shall instruct the Title Company to return the Deposit to
Purchaser, and neither party shall have any further obligations hereunder
except for the Surviving Covenants. Notwithstanding the foregoing, however,
Purchaser may waive such objections that Seller is unable or chooses not to
cure within 10 days after receipt of a notice that Seller is unable or chooses
not to cure such objections, and upon receipt by Seller of such waiver in full
from Purchaser, this
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Agreement shall remain in full force and effect with no reduction in the
Purchase Price.
If requested by Seller, Purchaser will confirm in writing whether this
title contingency has been satisfied and, if so, the date on which it was
satisfied.
6.6 Radius Lease Termination Contingency. Purchaser's obligation to
purchase the Property and Seller's obligation to sell the Property are subject
to the receipt by each of a copy of a fully executed Lease Termination
Agreement and a fully executed Radius/ISI Agreement prior to the expiration of
the Feasibility Period, the terms of which agreements shall be reasonably
satisfactory to both Seller and Purchaser.
Article VII.
Loss due to Casualty or Condemnation
7.1 Loss due to Condemnation. In the event of a condemnation of all or
a Substantial Portion of the Real Property which condemnation shall or would
render a Substantial Portion of the Real Property untenantable, or if any
portion of the building or parking area is taken, either party may, upon
written notice to the other party given within 10 days of receipt of notice of
such event, cancel this Agreement, in which event Seller shall instruct the
Title Company to return the Deposit to Purchaser, this Agreement shall
terminate and neither party shall have any rights or obligations hereunder
except for the Surviving.
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Covenants. In the event that neither party elects to terminate, or if the
condemnation affects less than a Substantial Portion or does not affect the
building or parking area, then this Agreement shall remain in full force and
effect, and Seller shall be entitled to all monies received or collected by
reason of such condemnation prior to closing. In such event, the transaction
hereby contemplated shall close in accordance with the terms and conditions of
this Agreement except that there will be an abatement of the Purchase Price
equal to the amount of the net proceeds, less costs and attorney's fees, which
are received by Seller by reason of such condemnation prior to closing. If the
condemnation proceeding shall not have been concluded prior to the Closing,
then there shall be no abatement of the Purchase Price and Seller shall assign
any interest it has in the pending award to Purchaser. For purposes of this
Section 7.1, a Substantial Portion shall mean a condemnation of in excess of
$500,000 in value of the Real Property.
7.2 Loss due to Casualty. In the event of Substantial Loss or Damage
to the Real Property by fire or other casualty (not resulting from acts of
Purchaser), either party may, upon written notice to the other party given
within 10 days of receipt of notice of such event, cancel this Agreement in
which event Seller shall instruct the Title Company to return the Deposit to
Purchaser and this Agreement shall terminate and neither party shall have any
rights or obligations hereunder except for the Surviving Covenants. In the
event that neither party elects to terminate, or if the casualty results in
less than Substantial
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Loss or Damage, then this Agreement shall remain in full force and effect and
Seller shall be entitled to all insurance proceeds received or collected by
reason of such damage or loss, whereupon the transaction hereby contemplated
shall close in accordance with the terms and conditions of this Agreement
except that there will be abatement of the Purchase Price equal to the amount
of the net proceeds, less costs and attorney's fees, which are received by
Seller as a result of such damage or loss, provided that such abatement will be
reduced by the amount expended by Seller in accordance with Article VIII hereof
for restoration or preservation of the Property following the casualty.
Alternatively, Purchaser may, in its discretion, have Seller repair or replace
the damaged Property, and there shall be no abatement of the Purchase Price in
such case. However, Purchaser shall not be entitled to require Seller to effect
repair or replacement unless the loss is entirely covered by insurance (except
for any applicable deductible) and the repair or replacement will take no more
than three (3) months to complete. For purposes of this Section 7.2,
"Substantial Loss or Damage" shall mean loss or damage, the cost for repair of
which exceed $500,000.
Article VIII.
Maintenance of the Property
Between the time of execution of this Agreement and the Closing, Seller
shall maintain the Property in good repair, reasonable wear and tear excepted,
shall perform all work
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required to be done under the terms of any lease or agreement relating to the
Property, and shall timely make all repairs, maintenance and replacements of
equipment or improvements, the same as though Seller were retaining the
Property; except that in the event of a fire or other casualty, damage or loss,
Seller shall have no duty to repair said damage. However, Seller may repair any
such damage with Purchaser's prior, written approval and may, without
Purchaser's approval, repair damage where such repair is necessary in Seller's
reasonable opinion to preserve and protect the health and safety of tenants of
the Property or to preserve the Property from imminent risk of further damage
or if required to do so by Seller's insurance carrier. Any such emergency
repairs shall be reported to Purchaser within 48 hours of their completion.
After the Effective Date, Seller shall not lease any portion of the Real
Property unless such lease has been approved in writing by Purchaser. Any such
proposed lease shall be on Seller's standard form of lease and shall be
reviewed and approved or rejected within five (5) business days after receipt
thereof by Purchaser. Failure to approve or reject such proposed lease within
such period shall be deemed approval. If the proposed lease is rejected, then
Seller shall not enter into such lease.
Article IX.
Broker
Purchaser represents to Seller that it has not engaged any broker,
finder or agent in connection with this transaction
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other than Commercial Property Services Company ("Purchaser's Broker") and that
it has not dealt with any broker, finder or agent other than Purchaser's Broker
and Seller's Broker (as hereinafter defined). Seller represents to Purchaser
that it has not engaged any broker or agent in connection with this transaction
other than SBC&D Company, Inc. ("Seller's Broker") and that it has not dealt
with any broker, finder or agent other than Purchaser's Broker and Seller's
Broker. Seller shall pay Seller's Broker a commission at Closing pursuant to a
separate agreement. Seller's Broker shall pay Purchaser's Broker a commission
pursuant to a separate written agreement. Each party will indemnify and hold
the other party harmless from all loss, cost and expense (including reasonable
attorney's fees) arising out of a breach of its representation or undertaking
hereunder. The provisions of this Article IX shall survive the Closing and any
termination of this Agreement.
Article X.
Representations and Warranties
10.1 Limitations on Representations and Warranties. Purchase hereby
agrees and acknowledges that, except as set forth in Section 10.2 below,
neither Seller nor any agent, attorney, employee or representative of Seller
has made any representation whatsoever regarding the subject matter of this
sale, or any part thereof, including (without limiting the generality of the
foregoing) representations as to the physical nature or condition of the
Property or the capabilities thereof,
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and that Purchaser, in executing, delivering and/or performing this Agreement,
does not rely upon any statement and/or information to whomever made or given,
directly or indirectly, orally or in writing, by any individual, firm or
corporation. Purchaser agrees to take the Real Property and the Personal
Property "as is," as of the date hereof, reasonable wear and tear, and minor
damage caused by the removal of any personal property or fixtures not included
in this sale, excepted. EXCEPT AS SET FORTH IN SECTION 10.2 BELOW, (i) SELLER
MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE PHYSICAL CONDITION OF THE
PROPERTY OR THE SUITABILITY THEREOF FOR ANY PURPOSE FOR WHICH PURCHASER MAY
DESIRE TO USE IT; (ii) SELLER HEREBY EXPRESSLY DISCLAIMS ANY WARRANTIES OF
MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE AND ANY OTHER
WARRANTIES OR REPRESENTATIONS AS TO THE PHYSICAL CONDITION OF THE PROPERTY; AND
(iii) PURCHASER, BY ACCEPTANCE OF THE DEED, AGREES THAT IT HAS INSPECTED THE
PROPERTY AND ACCEPTS SAME "AS IS" AND "WITH ALL FAULTS".
Purchaser understands that any financial statements and data,
including, without limitation, gross rental income, operating expenses and cash
flow statements, to be made available by Seller to Purchaser, will be unaudited
financial statements and data not prepared or reviewed by independent public
accountants, and that Seller makes no representation as to the accuracy or
completeness thereof.
10.2 Representations and Warranties. Seller makes the following
representations and warranties and agrees that
Page 21
25
Purchaser's obligations under this Agreement are conditioned upon the truth and
accuracy of such representations and warranties, both as of this date and as of
the date of the Closing:
(a) Seller has the corporate power and authority to enter into this
Agreement and convey the Property to Purchaser.
(b) Seller has received no notice of any existing, pending or
threatened litigation, administrative proceeding or condemnation or sale in
lieu thereof, or cancellation of insurance coverage, with respect to any
portion of the Real Property, except as noted on Exhibit H attached hereto.
(c) Except for Radius, who at Closing shall have terminated its lease,
there are no parties in possession of, or claiming any possession to, any
portion of the Real Property as lessees, tenants at sufferance, licensees,
trespassers or otherwise.
(d) Intentionally Omitted.
(e) There are no attachments or executions affecting the Property,
general assignments for the benefit of creditors, or voluntary or involuntary
proceedings in bankruptcy, pending or, to the best of Seller's knowledge,
threatened against Seller.
(f) During the period of Seller's ownership of the Property Seller has
not itself, and to the best of Seller's knowledge no prior owner or current or
prior tenant or other occupant of all
Page 22
26
or any part of the Property at any time has, used Hazardous Materials
(hereinafter defined) on, from, or affecting the Property in any manner that
violates federal, state, or local laws, ordinances, rules, or regulations
governing the use, storage, treatment, transportation, generation, or disposal
of Hazardous Materials (collectively, the "Environmental Laws"), and to the
best of Seller's knowledge no Hazardous Materials have been disposed of on the
Property. "Hazardous Materials" shall mean any flammable substances,
explosives, radioactive materials, hazardous wastes, toxic substances,
pollutants, pollution, or related materials regulated under any of the
Environmental Laws.
10.3 Seller's Knowledge. Whenever the term "to the best of Seller's
knowledge" is used in this Agreement or in any representations and warranties
given to Purchaser at Closing, such knowledge shall be the actual knowledge of
Michael J. Riccio and Leon Pouncy (the "Key Personnel"), the asset managers
assigned to the Real Property by CIGNA Investments, Inc., authorized agent for
Seller, after review of the files of Seller and CIGNA Investments, Inc. and
inquiry of Seller's property manager Scott Trobbe of South Bay Construction and
Development Company. Seller shall have no duty to conduct any further inquiry
in making any such representations and warranties, and no knowledge of any
other person shall be imputed to the Key Personnel.
10.4 Survival. All representations and warranties contained in Section
10.2 will survive the Closing of this transaction (but
Page 23
27
only as to the status of facts as they exist as of the Closing, it being
understood that the Seller makes no representations or warranties which would
apply to changes or other matters occurring after the Closing), but shall
expire on the date one year from the date of Closing, and no action on such
representations and warranties may be commenced after such expiration.
Article XI.
Intentionally Omitted
Article XII.
Assignment
This Agreement may not be assigned or transferred by Purchaser without
prior written consent of Seller. No assignment shall relieve Purchaser of any
of its obligations under this Agreement.
Article XIII.
Notices
All notices hereunder or required by law shall be sent via United States
Mail, postage prepaid, certified mail, return receipt requested, or via any
nationally recognized commercial overnight carrier with provisions for receipt,
addressed to the parties hereto at their respective addresses set forth below or
Page 24
28
as they have theretofore specified by written notice delivered in accordance
herewith:
PURCHASER: Narenda K. Gupta, Chairman
Integrated Systems, Inc.
3260 Jay Street
Santa Clara, CA 95054
with a copy to: David Healy
Fenwick & West
2 Palo Alto Square
Palo Alto, CA 94306
SELLER: Connecticut General Life Insurance
Company
c/o CIGNA Investments, Inc.
900 Cottage Grove Road
Hartford, CT 06152-2311
Attn: Asset Management, S-311
with a copy to: CIGNA Corporation
Investment Law Department
Mortgage and Real Estate Group, S-215A
900 Cottage Grove Road
Hartford, CT 06152-2215
Delivery will be deemed complete upon actual receipt or refusal to accept
delivery.
Page 25
29
Article XIV.
Expenses
Seller shall pay (i) its own attorney's fees, (ii) the real estate
transfer stamp, documentary or conveyance taxes, (iii) the cost of an Owner's
title insurance policy without extended coverage or special endorsements issued
in connection with this transaction, and (iv) one-half of the Title Company's
escrow fee. Purchaser shall pay for (a) all of Purchaser's attorneys' fees and
expenses, (b) costs of Purchaser's inspecting architect and engineer, if any,
(c) recording charges, (d) survey costs, (e) one-half of the Title Company's
escrow fee, and (f) the cost of any title insurance in excess of the cost of an
Owner's policy without extended coverage or special endorsements, including any
additional premium charges for endorsements and/or deletions of exception
items. Any cancellation charges imposed by any title company in the event a
title insurance policy is not issued shall be split evenly, unless caused by
willful default of one party, in which case such charges shall be borne by the
willfully defaulting party.
Article XV.
Miscellaneous
15.1 Successors and Assigns. All the terms and conditions of this
Agreement are hereby made binding upon the executors, heirs, administrators,
successors and permitted assigns of both parties hereto.
Page 26
30
15.2 Gender. Words of any gender used in this Agreement shall be held
and construed to include any other gender, and words in the singular number
shall be held to include the plural, and vice versa, unless the context
requires otherwise.
15.3 Captions. The captions in this Agreement are inserted only for
the purpose of convenient reference and in no way define, limit or prescribe
the scope or intent of this Agreement or any part hereof.
15.4 Construction. No provision of this Agreement shall be construed
by any Court or other judicial authority against any party hereto by reason of
such party's being deemed to have drafted or structured such provisions.
15.5 Entire Agreement. This Agreement constitutes the entire contract
between the parties hereto and there are no other oral or written promises,
conditions, representations, understandings or terms of any kind as conditions
or inducements to the execution hereof and none have been relied upon by either
party.
15.6 Recording. The parties agree that this Agreement shall not be
recorded. If Purchaser causes this Agreement or any notice or memorandum
thereof to be recorded, this Agreement shall be null and void at the option of
the Seller.
Page 27
31
15.7 No Continuance. Purchaser acknowledges that there shall be no
assignment, transfer or continuance of any of Seller's insurance coverage or of
the property management contract.
15.8 Time of Essence. Time is of the essence in this transaction.
15.9 Original Document. This Agreement may be executed by both
parties in counterparts in which event each shall be deemed an original.
15.10 Governing Law. This Agreement shall be construed, and the rights
and obligations of Seller and Purchaser hereunder, shall be determined in
accordance with the laws of the State of California.
15.11 Acceptance of Offer. This Agreement constitutes Seller's offer
to sell to Purchaser on the terms set forth herein and must be accepted by
Purchaser by signing four copies hereof and returning two copies to Seller no
later than February 9, 1996. If Purchaser has not accepted this Agreement by
such date, then this Agreement and the offer represented hereby shall
automatically be revoked and shall be of no further force or effect.
15.12 Confidentiality. Purchaser and Seller agree that all documents
and information concerning the Property delivered to
Page 28
32
Purchaser, the subject matter of this Agreement, and all negotiations will
remain confidential. Purchaser and Seller will disclose such information only
to those parties required to know it, including, without limitation, employees
of either of the parties, consultants and attorneys engaged by either of the
parties, and prospective or existing investors and lenders.
15.13 Surviving Covenants. Notwithstanding any provisions hereof to
the contrary, the provisions of the second paragraph of Section 6.2 hereof and
the provisions of Article IX hereof (collectively, the "Surviving Covenants")
shall survive the closing and any termination of this Agreement.
15.14 Intentionally Omitted.
15.15 Attorneys' Fees. If either party hereto fails to perform any of
its obligations under this Agreement or if any dispute arises between the
parties hereto concerning the meaning or interpretation of any provision of
this Agreement, then the defaulting party or the party not prevailing in such
dispute, as the case may be, shall pay any and all costs and expenses incurred
by the other party on account of such default and/or in enforcing or
establishing its rights hereunder, including, without limitation, court costs
and reasonable attorney's fees and disbursements. Any such attorneys' fees and
other expenses incurred by either party in enforcing a judgment in its favor
under this Agreement shall be recoverable separately from and in addition to
any other amount included in such judgment, and such
Page 29
33
attorneys' fees obligation is intended to be severable from the other
provisions of this Agreement and to survive and not be merged into any such
judgment.
15.16 ERISA. Purchaser acknowledges that Connecticut General Life
Insurance Company is entering into this Agreement on behalf of its Closed-End
Real Estate Fund II ("CERF II"). According to Seller, CERF II is a separate
account as defined in Section 3(17) of the Employee Retirement Income Security
Act of 1974 ("ERISA"). Under ERISA and under United States Department of Labor
Prohibited Transaction Class Exemption 78-19, Seller is prohibited from
entering into transactions with certain classes of parties ("parties in
interest") with respect to any participant in CERF II holding an interest in
excess of 10%. Seller represents to the Purchaser that the only such 10%
participants in CERF II are the State of Connecticut Pension Fund, Pension Plan
of United Technologies Corporation, United States Pension Plan of CIGNA
Corporation, and the Pension Plan of Unisys (the "Plans"). In order to assist
Seller in determining that Seller is not engaging in a prohibited transaction
under ERISA by entering into this Agreement, Purchaser hereby represents to
Seller that Purchaser:
1. Is not a fiduciary who exerts discretion, control or
authority over the Plans; or an administrator, officer,
trustee or custodian of such fiduciary; or counsel to,
or an employee of, the Plans;
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34
2. Is not owned, 50% or more, by any fiduciary, counsel or
employee described in subparagraph 1;
3. Is not an employee, officer, director, 10% shareholder
or 10% partner of any "owning" entity described in
subparagraph 2.
In addition, only the assets of CERF II shall be bound for the
obligations under this Agreement and any agreements contemplated hereby, and no
recourse shall be had to the general assets of Connecticut General Life
Insurance Company for any such obligation.
EXECUTED BY PURCHASER this 9th day of February, 1996.
PURCHASER:
INTEGRATED SYSTEMS, INC.
By: /s/ Narendra Gupta
----------------------
Name:
Title: Chairman
Page 31
35
EXECUTED BY SELLER this _______ day of February, 1996.
SELLER:
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY, on behalf of its Closed-
End Real Estate Fund II
By: CIGNA Investments, Inc.
By: /s/ Leon Pouncy
--------------------------------
Name: Leon Pouncy
Title: Managing Director
Receipt of original copies of this Agreement executed by Seller and Purchaser
is acknowledged this _______ day of ________________________, 19____.
TITLE COMPANY:
SANTA CLARA LAND TITLE COMPANY
By: ______________________________
Name:
Title:
Page 32
36
EXHIBIT A
TO
AGREEMENT OF PURCHASE AND SALE
Description of Land
37
Page No. 6
File No. 116511
SCHEDULE A
LEGAL DESCRIPTION
All that certain property situate in the City of Sunnyvale, County of Santa
Clara, State of California, described as follows:
Parcel 1, as shown on that Parcel Map filed for record in the office of the
Recorder of the County of Santa Clara, State of California on November 9,
1976, in Book 383 of Maps, page(s) 19.
ARB No: 110-3-62
38
EXHIBIT B
TO
AGREEMENT OF PURCHASE AND SALE
Intentionally Omitted
39
EXHIBIT C
TO
AGREEMENT OF PURCHASE AND SALE
Grant Deed
[The form of Grant Deed follows this page.]
40
GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
________________________________________
________________________________________
________________________________________
Documentary Transfer Tax is not of public record and is shown on a separate
sheet attached to this deed.
_______________________________________________________________________________
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
____________________, a ____________________, hereby grants to
____________________, a ____________________, the real property located in
____________________, County of ____________________, State of California,
described on Exhibit A attached hereto and made a part hereof.
Subject, however, to Exhibit A attached hereto and made a part hereof.
Executed as of this ____ day of ____________________, 19__.
_____________________________________, a
________________________________________
By: ____________________________________
Name:
Its:
MAIL TAX STATEMENTS TO:
[Buyer's Address]
________________________________________
________________________________________
________________________________________
________________________________________
41
EXHIBIT A
TO
GRANT DEED
REAL PROPERTY
[TO COME]
Subject to:
(a) all real property taxes and assessments not delinquent, and all easements,
liens, covenants, conditions and restrictions of record and (b) any and all
matters referenced or indicated on that certain survey prepared by
, dated , under Job No. .
- ---------------------- ---------------------- ---------
42
EXHIBIT B
TO
GRANT DEED
PERMITTED TITLE EXCEPTIONS
[TO COME]
43
EXHIBIT D
TO
AGREEMENT OF PURCHASE AND SALE
Bill of Sale
[The form of Bill of Sale follows this page.]
44
BILL OF SALE AND GENERAL ASSIGNMENT
STATE OF ________________________ )
)
COUNTY OF _______________________ )
Concurrently with the execution and delivery hereof, ________________,
a ________________ ("Assignor"), is conveying to ________________, a
________________ ("Assignee"), by Grant Deed, that certain tract of land
together with the improvements thereon (the "Property") lying and being
situated in ________________, ________________ and being more particularly
described in Exhibit A, attached hereto and made a part hereof.
It is the desire of Assignor to hereby assign, transfer, setover and
deliver to Assignee all furnishings, fixtures, fittings, appliances, apparatus,
equipment, machinery and other items of personal property, if any, affixed or
attached to, or placed or situated upon, the Property, except those not owned
by Assignor but including all of Assignor's interest in and to any tangible
personal property left or abandoned in or on the Property by Radius, Inc., and
any and all other incidental rights and appurtenances relating thereto, all as
more fully described below (such properties being collectively called the
"Assigned Properties").
NOW, THEREFORE, in consideration of the receipt of Ten Dollars ($10.00)
and other good and valuable consideration in hand paid by Assignee to Assignor,
the receipt and sufficiency of which are hereby acknowledged and confessed by
Assignor, Assignor does hereby ASSIGN, TRANSFER, SET OVER and DELIVER to
Assignee, its successors and assigns, all of the Assigned Properties, without
warranty (whether statutory, express or implied), including, without limitation
the following:
1. All furnishings, fittings, equipment, appliances, apparatus,
machinery fixtures and all other personal property of every kind and character
(both tangible and intangible), if any, owned by Assignor and located in or on
the Property;
2. All of Assignor's interest in and to all use, occupancy, building and
operating permits, licenses and approvals, if any, issued from time to time
with respect to the Property or the Assigned Properties;
3. All of Assignor's interest in and to all maintenance, service and
supply contracts, if any, relating to the Property or the Assigned Properties
(to the full extent same are assignable) listed on Exhibit B hereto;
45
BILL OF SALE AND GENERAL ASSIGNMENT
(Continued)
4. All of Assignor's interest in and to all existing and assignable
guaranties and warranties (express or implied), if any, issued in connection
with the construction, alteration and repair of the Property and/or the
purchase, installation and the repair of the Assigned Properties;
5. All rights which Assignor may have to use any names commonly used in
connection with the Property, if any; and
6. All rights, which Assignor may have, if any, in and to any tenant
data, telephone numbers and listings, all master keys and keys to common areas,
all good will, if any, and any and all other rights, privileges and
appurtenances owned by Assignor and related to or used in connection with the
existing business operation of the Property.
ASSIGNOR MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE PHYSICAL
CONDITION OF THE PROPERTY OR THE ASSIGNED PROPERTIES OR THE SUITABILITY THEREOF
FOR ANY PURPOSE THAT ASSIGNEE MAY DESIRE TO USE IT. ASSIGNOR HEREBY EXPRESSLY
DISCLAIMS ANY WARRANTIES AS TO MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR
PURPOSE AND ANY OTHER WARRANTIES OR REPRESENTATIONS AS TO THE PHYSICAL
CONDITION OF THE ASSIGNED PROPERTIES. ASSIGNEE ACKNOWLEDGES AND AGREES THAT IT
HAS INSPECTED THE ASSIGNED PROPERTIES AND ACCEPTS SAME IN THEIR PRESENT
CONDITION, "AS IS" AND "WITH ALL FAULTS."
Assignor on behalf of itself and its successors and assigns does hereby
agree to indemnify and hold Assignee, its successors and assigns, harmless from
all obligations accruing under the maintenance, service and supply contracts
assigned hereby and any liabilities arising thereunder, prior to the date
hereof but not thereafter.
Assignee on behalf of itself, its successors and assigns, hereby agrees
to assume and perform all obligations accruing under the maintenance, service
and supply contracts from and after the date hereof, the Assignee on behalf of
itself, its successors and assigns does hereby agree to indemnify and hold
Assignor, its successors and assigns, harmless from all such obligations and
any liabilities arising thereunder from and after the date hereof.
If either party hereto fails to perform any of its obligations under
this Agreement or if any dispute arises between the parties hereto concerning
the meaning or interpretation of any provision of this Agreement, then the
defaulting party or the party not prevailing in such dispute, as the case may
be, shall pay any and all costs and expenses incurred by the other party on
account of such default and/or in enforcing or establishing its
46
BILL OF SALE AND GENERAL ASSIGNMENT
(Continued)
rights hereunder, including, without limitation, court costs and reasonable
attorneys' fees and disbursements. Any such attorneys' fees and other expenses
incurred by either party in enforcing a judgment in its favor under this
Agreement shall be recoverable separately from and in addition to any other
amount included in such judgment, and such attorneys' fees obligation is
intended to be severable from the other provisions of this Agreement and to
survive and not be merged into any such judgment.
This document may be executed in any number of counterparts, each of
which may be executed by any one or more of the parties hereto, but all of
which shall constitute one instrument, and shall be binding and effective when
all parties hereto have executed at least one counterpart.
IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment
to be executed as of the ______ day of ________________________, 19___.
ASSIGNOR:
ASSIGNEE:
47
BILL OF SALE AND GENERAL ASSIGNMENT
(Continued)
EXHIBIT A
TO
BILL OF SALE AND GENERAL ASSIGNMENT
REAL PROPERTY
[TO COME]
48
BILL OF SALE AND GENERAL ASSIGNMENT
(Continued)
EXHIBIT B
TO
BILL OF SALE AND GENERAL ASSIGNMENT
SERVICE AND MAINTENANCE CONTRACTS TO BE ASSUMED BY PURCHASER
[TO COME]
49
EXHIBIT E
TO
AGREEMENT OF PURCHASE AND SALE
Service and Maintenance Agreements
to be Assumed by Purchaser
50
EXHIBIT F
TO
AGREEMENT OF PURCHASE AND SALE
Indemnification Agreement
[The form of Indemnification Agreement follows this page.]
51
INDEMNIFICATION AGREEMENT
Concurrently with the execution and delivery hereof, ___________________
______________, a _________________________________________________ ("Seller"),
is conveying to _______________________________________________, a _____________
_______________ ("Purchaser"), by Grant Deed, that certain tract of land
together with the improvements thereon (the "Property"), lying and being
situated in ____________________________________________, ______________________
__________________ and being more particularly described on Exhibit A attached
hereto and made a part hereof. It is the desire of Seller and Purchaser to
deliver a mutual cross-indemnification pertaining to the expenses relating to
the ownership, management and operation of the Property.
NOW, THEREFORE, in consideration of the receipt of Ten Dollars ($10.00)
and other good and valuable consideration in hand paid, the receipt and
sufficiency of which are hereby acknowledged, Purchaser and Seller hereby agree
as follows:
1. Seller on behalf of itself and its successors and assigns does
hereby agree to indemnify and hold Purchaser, its successors and assigns,
harmless from and against all costs, charges and expenses related to the
ownership, management and operation of the Property prior to the date hereof
but not thereafter.
2. Purchaser on behalf of itself, its successors and assigns does
hereby agree to indemnify and hold Seller, its successors and assigns, harmless
from and against all costs, charges and expenses relating to the ownership,
management and operation of the Property from and after the date hereof, Except
for pre-closing contractual obligations in connection with the Property not
assumed by Purchaser.
The foregoing indemnities shall not imply any warranties or indemnities
with respect to compliance with environmental and land use laws or disposal of
hazardous materials, such matters being governed solely by the terms of that
certain Agreement of Purchase and Sale between Seller and Purchaser having an
Effective Date (as defined therein) of February __, 1996.
If either party hereto fails to perform any of its obligations under
this Agreement or if any dispute arises between the parties hereto concerning
the meaning or interpretation of any provision of this Agreement, then the
defaulting party or the party not prevailing in such dispute, as the case may
be, shall pay any and all costs and expenses incurred by the other party on
account of such default and/or in enforcing or establishing its rights
hereunder, including without limitation, court costs and reasonable attorneys'
fees and disbursements. Any such attorneys' fees and other expenses incurred by
either party in enforcing a judgment in its favor under this Agreement shall be
recoverable separately from and in addition to any other amount
52
included in such judgment, and such attorneys' fees obligation is intended to
be severable from the other provisions of this Agreement and to survive and not
be merged into any such judgment.
This document may be executed in any number of counterparts, each of
which may be executed by and one or more of the parties hereto, but all of
which shall constitute one instrument, and shall be binding and effective when
all parties hereto have executed at least one counterpart.
IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to
be executed as of the ____ day of _______________________, 19__.
SELLER:
PURCHASER:
53
EXHIBIT G
TO
AGREEMENT OF PURCHASE AND SALE
Form of Seller's Affidavit of Non-Foreign Status
STATE OF ____________________________)
) (insert date)
COUNTY OF ___________________________)
I, (proper name of Seller's officer), as (office held) of (Seller),
being duly authorized to make this affidavit on behalf of (Seller) and being
duly sworn, do depose and say, that:
1. (Seller's) taxpayer identification number is
_______________________.
2. (Seller) is not a "foreign person" within the meaning of Section
1445(f)(3), of the Internal Revenue Code of 1954 (the "Code"), as amended; and
(Buyer) is not required, pursuant to Section 1445 of the Code, to withhold ten
percent (10%) of the amount realized by Seller on the disposition of the
Property to (Buyer).
3. I understand that I am making this Affidavit under penalty or
perjury pursuant to the requirements of Section 1445 of the Code.
(Seller)
By:
______________________________________________
SWORN TO and subscribed before me this _____________ day of
___________________, 199_.
_____________________________________________
Notary Public
My Commission Expires:
54
EXHIBIT H
TO
AGREEMENT TO PURCHASE AND SALE
Pending Litigation
NONE.