1
Exhibit 10.35
AGREEMENT FOR PURCHASE AND SALE
OF REAL PROPERTY WITH REPURCHASE OPTION
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY WITH REPURCHASE
OPTION (the "Agreement") is made and entered into as of the 10th day of
September, 1996 by and between JTS CORPORATION ("Seller" or "JTS"), and JACK
TRAMIEL ("Buyer" or "Tramiel").
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 in SCHEDULE 1
attached hereto.
2. PURCHASE AND SALE. Seller agrees to sell the real property described
on the attached EXHIBIT A (collectively 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 Ten Million Dollars ($10,000,000) which,
subject to all prorations and adjustments provided in this Agreement, shall be
paid by Buyer to Seller through escrow on the Closing Date in cash.
4. CONDITIONS TO AGREEMENT.
4.1 BUYER'S CONDITIONS PRECEDENT. Buyer's obligation to purchase
the Property or otherwise to perform any obligation provided in this Agreement
shall be conditioned expressly upon the fulfillment to Buyer's reasonable
satisfaction of each of the following conditions precedent:
4.1.1 The due and timely performance by Seller of each and
every covenant, undertaking and agreement to be performed by Seller as provided
in this Agreement.
4.1.2 As of the Closing Date, there shall have been no
material adverse change in the condition of the Property, or any portion
thereof.
4.2 SELLER'S CONDITIONS PRECEDENT. Seller's obligation to sell the
Property shall be conditioned expressly upon the fulfillment to Seller's
reasonable satisfaction of each of the following conditions precedent:
1.
2
4.2.1 Buyer's due execution and delivery to Seller on
the Closing Date of a Memorandum of the Option to Repurchase in the form
attached hereto as EXHIBIT B for each county in which any of the Property is
located (COLLECTIVELY THE "OPTION MEMORANDA").
4.2.2 The due and timely performance by Buyer of each
and every covenant, undertaking and agreement to be performed by Buyer as
provided in this Agreement.
4.3 REMOVAL OF TITLE CONDITIONS. Buyer has notified Seller of
its objections to the disapproved exceptions listed on Schedule 2 attached
hereto (the "Disapproved Exceptions"). Following the Closing Date Seller shall,
at its sole cost and expense, remove the Disapproved Exceptions.
4.4 TERMINATION. In the event any of the foregoing conditions
are neither fulfilled, nor waived as provided above, Buyer, at its election by
written notice to Seller, may terminate this Agreement and be released from all
obligations under this Agreement. In the event of termination by Buyer all funds
deposited in escrow by Buyer or paid by Buyer to Seller outside of escrow and
all interest accrued on such funds shall be returned immediately to Buyer, and
all documents deposited in escrow by Buyer or Seller shall be returned to the
depositing party.
5. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS.
5.1 SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS. Seller
hereby makes the following covenants, representations and warranties to and for
the benefit of Buyer:
5.1.1 Seller will convey to Buyer all its right,
title and interest in the Property to Buyer, including the assignment of all
right, title and interest Seller may have as landlord under the Tenant Occupancy
Leases.
5.1.2 Neither Seller's execution of this Agreement
nor performance by Seller of any of its obligations hereunder (i) violates or
shall violate any written agreement to which Seller is bound, or (ii) shall
constitute a violation or breach by Seller of any judgment, order, writ,
injunction or decree issued or imposed upon Seller, and no approval, consent,
order, authorization, designation, filing (other than recording), registration,
notification of, by or with any judicial or governmental authority is required
in conjunction with Seller's execution of this Agreement and performance of its
obligations hereunder.
5.1.3 Seller shall deliver to Buyer on the Closing
date a certified copy of the resolution of its board of directors authorizing
the transactions contemplated by this Agreement.
5.1.4 At any time following the Closing Date and
during the term of this Agreement, Buyer shall, upon the written request of
Seller, cause the Property or any portion of it, to be listed for sale, and
shall cooperate fully with Seller in the marketing of the Property.
2.
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5.2 BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer hereby makes
the following representations and warranties to and for the benefit of Buyer:
5.2.1 Neither Buyer's execution of this Agreement nor
performance by Buyer of any of its obligations hereunder (i) violates or shall
violate any written agreement to which Buyer is bound, or (ii) shall constitute
a violation or breach by Buyer of any judgment, order, writ, injunction or
decree issued or imposed upon Buyer, and no approval, consent, order,
authorization, designation, filing (other than recording), registration,
notification of, by or with any judicial or governmental authority is required
in conjunction with Buyer's execution of this Agreement and performance of its
obligations hereunder.
5.2.2 Buyer is fully familiar with the Property due
to Buyer's affiliation with the previous owner of the Property. Buyer is
purchasing the Property based solely on his own knowledge and investigation of
the Property (to the extent he deems any such investigation necessary in light
of his prior knowledge of the Property), in its "as-is, where-is" condition,
without reliance upon any representation or warranty of Seller.
6. TITLE, ESCROW AND CLOSING.
6.1 CONDITIONS OF TITLE. Seller shall convey title to the
Property upon the close of escrow by grant deeds (the "Deeds") subject to no
exceptions other than the following (the "Conditions of Title"):
6.1.1 The lien for local real estate taxes and
assessments not yet due or payable;
6.1.2 All items set forth in Schedule B of the Title
Reports for the portions of the Property located in California and all items set
forth in Schedule C of the Title Reports for the portions of the Property
located in Texas, with the understanding that Seller, following the Closing
Date, shall remove the exceptions described on the SCHEDULE 2, attached hereto;
6.1.3 Interests of tenants pursuant to Tenant
Occupancy Leases; and
6.1.4 The Option Memoranda.
6.2 TITLE INSURANCE. Buyer's obligation to purchase the
Property shall be subject to the irrevocable commitment of the Title Company to
issue upon payment of its normal premium on the close of escrow of the
transaction contemplated by this Agreement its CLTA Owner's Policy of Title
Insurance for each portion of the Property located in California and its
standard form of Texas Land Title form of owner's policy of title insurance for
each portion of the Property located in Texas, insuring Buyer in the aggregate
amount of $10,000,000, that fee simple title to the Property is vested in Buyer
subject only to the Conditions of Title. Buyer shall be entitled to direct the
Title Company to allocate the amount of insurance to individual parcels for the
purpose of issuing individual policies of title insurance if Buyer so chooses.
3.
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6.3 CLOSING DATE. Through an escrow established with the Title
Company, Buyer and Seller shall consummate this transaction on September 12,
1996, or such later date as the parties shall mutually agree upon (the "Closing
Date").
6.4 DEPOSITS AND DELIVERIES BY SELLER. Seller shall deposit or
cause to be deposited into escrow with the Title Company, or deliver directly to
Buyer outside of escrow, on or before the Closing Date, the following documents
duly executed and acknowledged as required:
6.4.1 The Deeds.
6.4.2 An Assignment of Leases in the form attached
hereto as EXHIBIT C transferring to Buyer all of Seller's interest as landlord
under the Tenant Occupancy Leases, and all guarantees thereof, if any, (the
"Assignment of Leases").
6.4.3 An Affidavit of Non-Foreign Status.
6.4.4 Seller's written escrow instructions to close
escrow in accordance with the terms of this Agreement.
6.4.5 Counterpart originals of the Option Memoranda.
6.4.6 Such other documents, resolutions, consents and
affidavits necessary or advisable to effect the valid consummation of the
transaction evidenced by this Agreement.
6.5 DEPOSITS AND DELIVERIES BY BUYER. Buyer shall deposit or
cause to be deposited into escrow with the Title Company, or deliver directly to
Seller outside of escrow, on or before the Closing Date, each of the following
documents duly executed and acknowledged as required and funds:
6.5.1 Cash, wire transfer, cashier's check, or other
immediately available funds, which shall equal the Purchase Price (the "Purchase
Funds").
6.5.2 A counterpart original of the Assignment of
Leases.
6.5.3 Counterpart originals of the Option Memoranda.
6.5.4 Buyer's written escrow instructions to close
escrow in accordance with the terms of this Agreement.
6.6 CLOSING. The Title Company shall close escrow on the
Closing Date when and if it is irrevocably committed to issue the title
insurance described in SECTION 6.2 above and has received all of the documents
and funds listed in SECTIONS 6.4 and 6.5 above. The Title Company shall close
escrow by:
4.
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6.6.1 Recording the Deeds and the Option Memoranda,
in that order.
6.6.2 Issuing to Buyer the owner's policy of title
insurance described in SECTION 6.2 above.
6.6.3 Delivering to Buyer the original of the
Assignment of Leases and Non-Foreign Affidavit, each duly executed by Seller.
6.6.4 Delivering to Seller both original counterparts
of the Option Memoranda, and the Purchase Funds, after taking into account
Seller's share of prorations.
6.6.5 Delivering to Buyer and Seller copies of all
other documents and things deposited and/or delivered through escrow, the
originals of which are not being delivered by the Title Company to such parties,
together with Title Company's final closing statement for the subject
transaction.
6.7 PRORATIONS.
6.7.1 Rents and other income, current taxes,
insurance premiums and management, service, operating and maintenance expenses
shall be prorated between Seller and Buyer as of the Closing Date. All bonds,
assessments, encumbrances and other charges against the Property levied on or
before the Closing Date shall be assumed by Buyer.
6.7.2 All deposits made by tenants of the Property as
security for rent, cleaning or any other purpose and prepaid rents and all
interest accrued or due on such sums shall, at the sole option of Buyer, be
credited against the Purchase Price to be paid by Buyer.
6.8 CLOSING COSTS. Seller shall pay the cost of all transfer,
sales and conveyance taxes imposed by any governmental authority upon this
transaction, title insurance and endorsement premiums for the title insurance,
recording fees and escrow fees incurred in connection with the contemplated
transaction.
6.9 POSSESSION. Right to possession of the Property shall
transfer to Buyer on the Closing Date, subject to the rights of the tenants
under the Tenant Occupancy Leases.
7. COMMISSIONS.
7.1 BROKERAGE COMMISSION AND FINDER'S FEE. Each party to this
Agreement warrants to the other 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.
5.
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7.2 GRANT OF OPTION TO REPURCHASE. Tramiel does hereby grant
JTS an option to purchase the Property from Tramiel upon the following terms and
conditions:
7.2.1 PURCHASE PRICE. In the event the option is
exercised the purchase price for the Property shall be Ten Million Dollars
($10,000,000) (THE "OPTION PRICE"), subject to reduction in accordance with the
provisions of Section 7.2.5, below.
7.2.2 TITLE AND COSTS. In the event that the option
is exercised, the Property shall be conveyed free and clear of all liens and
encumbrances other than the lien for current real property taxes not yet due and
the Conditions of Title and the Tenant Occupancy Leases, and any other leases or
rental agreements relating to the property entered into by Tramiel with the
approval of JTS following the Closing Date, shall be assigned to JTS. JTS shall
pay the transfer tax upon conveyance of the Property, recording costs, and the
cost of any title insurance and escrow fees. Current taxes, insurance, premiums
and management, service, operating and maintenance expenses shall be prorated
between JTS and Tramiel as of the date Tramiel conveys the Property to JTS.
7.2.3 EXERCISE OF THE OPTION. The option may be
exercised at any time prior to the first anniversary of the Closing Date, but in
no event shall the closing take place until after such first anniversary. The
Property shall be conveyed to JTS, the purchase price shall be paid by JTS to
Tramiel, and the Tenant Occupancy Leases, and any other leases or rental
agreements entered into by Tramiel with the approval of JTS following the
Closing Date, shall be assigned to JTS by Tramiel, no later than thirty (30)
days following the first anniversary of the Closing Date. The option shall be
exercised by giving written notice of JTS's election to exercise the option to
Tramiel. If the option is not exercised within the time provided, unless the
date for the exercise of the option shall be extended in writing, the option
shall terminate.
7.2.4 ADDITIONAL ENCUMBRANCES, ALTERATIONS. Tramiel
shall not further encumber the Property, grant any easements, or agree to any
restrictions upon the Property without the prior written consent of JTS. Tramiel
shall not make any alterations to the Property nor convey title to the Property
to any third person until such time as the option shall have expired, except as
provided in Section 7.2.5 below.
7.2.5 SALE OF 11820 W. OLYMPIC BOULEVARD, LOS
ANGELES, CA. Atari Corporation entered into a purchase agreement with The Oved
Intervivos Trust Dated May 12, 1988, The Frederick H. Leeds Intervivos Trust of
November 30, 1990 and the Sheila L. Greger Intervivos Trust dated May 12, 1989
for the sale of that portion of the Property known as 11820 W. Olympic
Boulevard, West Los Angeles, California (the "West Los Angeles Site") for a
purchase price of $2,400,000. In the event Tramiel completes this transaction,
or any other transaction for the sale of the West Los Angeles Site with the
approval of JTS, the Option Price shall be reduced by the net sales proceeds
received by Tramiel upon his sale of the West Los Angeles Site. Tramiel has
indicated to JTS that he has negotiated a transaction with Kim Dunitz, the owner
of a one twenty-fourth interest in the West Los Angeles Site, to pay her a total
of $100,000 in exchange for her interest. The net sales proceeds shall be the
gross sales price less the sum of all Tramiel's expenses, taxes, commissions,
costs, transfer fees, closing
6.
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costs incurred in connection with such sale and any amount up to $100,000 (or
greater amount if agreed to in writing by JTS) paid by Tramiel to Kim Dunitz in
exchange for her interest in the West Los Angeles Site.
7.2.6 RECORDING. The parties agree to record a
memorandum of this Agreement. If the option is not exercised JTS agrees to
deliver quitclaim deeds for the Property to Tramiel.
8. RIGHT OF FIRST OFFER. The property located at 7060 W. Sunset
Boulevard, Los Angeles (the "Sunset/LaBrea Site") is encumbered by that certain
Declaration of Establishment of Restrictions and Covenants Affecting Land (the
"Declaration") recorded March 23, 1988 as Document #88-396092 in which a certain
person has a right of first offer concerning the Sunset/LaBrea Site. Because
Tramiel's offer to purchase each parcel comprising the Property is not
severable, JTS must notify the holder of such right of first offer of the terms
of this Agreement. In the event that, after the closing of the sale to Tramiel,
such person elects to purchase the Property, Tramiel, at the direction of JTS,
shall convey the Property either directly to such person or to JTS, upon payment
to Tramiel of the amount of Ten Million Dollars.
9. GENERAL PROVISIONS.
9.1 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: JTS CORPORATION
166 Baypointe Parkway
San Jose, CA 95134
Attn: Chief Financial Officer
With a copy to: Andrei Manoliu, Esq.
Cooley Godward
5 Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
Fax No. (415) 857-0663
Phone No. (415) 843-5000
7.
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To Buyer: MR. TRAMIEL
18331 Lexington Drive
Monte Sereno, CA 95030
With a copy to: Adron W. Beene, Esq.
6453 Hidden Creek Court
San Jose, CA 95120
Fax No. (408) 997-8439
Phone No. (408) 323-9223
9.2 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.
9.3 TIME. Time is of the essence in the performance of the parties'
respective obligations set forth in this Agreement.
9.4 ATTORNEYS' FEES; VENUE. In the event any action or proceeding at
law or in equity between Buyer and Seller 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. Venue shall be in
Santa Clara County.
9.5 SUCCESSORS AND ASSIGNS. This Agreement may not be assigned by Buyer
without the prior written consent of Seller which may be granted or withheld by
Seller 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.
9.6 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 signatory to the same counterpart.
8.
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9.7 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.
9.8 FURTHER ASSURANCES. The parties agree to enter into such further
documents as may be necessary to effect the transactions contemplated hereby.
IN WITNESS WHEREOF, Buyer and Seller have executed this Agreement as of
the date and year first written above:
SELLER: BUYER:
JTS Corporation
By /s/ W. Virginia Walker /s/ Jack Tramiel
______________________________ ____________________________
Jack Tramiel
Its Executive Vice President
_____________________________
9.
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SCHEDULE 1
DEFINED TERMS
For the purposes of this Agreement, the following words and phrases shall have
the following meanings unless the context otherwise specifies or requires:
"TENANT OCCUPANCY LEASES" shall mean all leases, work letter
agreements, improvement agreements, and other rental agreements, if any, listed
in SCHEDULE B TO THE ASSIGNMENT OF LEASES (which is attached to this Agreement
as EXHIBIT C) with respect to occupancy or use of the Property by tenants.
"TITLE COMPANY" shall mean Stewart Title Company whose address for this
transaction is as follows:
Stewart Title Company
180 Montgomery Street, Suite 840
San Francisco, CA 94104
Attn: Terry Duwell, Escrow Officer
Escrow No. 20101847
Fax No. (415) 986-5973
Phone No. (415) 705-8970
"TITLE REPORTS" shall mean the preliminary title reports with respect
to the Property described as follows:
40020708 8/25/96 (West Los Angeles, Los Angeles County)
80127028 8/8/96 (Costa Mesa, Orange County)
40020707 8/12/96 (Sunset/La Brea, Los Angeles County)
96116311B 8/14/96 (Champions Terrace, Harris County)
96116311A 8/14/96 (Deerbrook, Harris County)
96302992 8/9/96 (Mesquite and Carrollton, TX, Dallas County)
1.
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SCHEDULE 2
DISAPPROVED EXCEPTIONS
Title Report No. Disapproved Exceptions
West Los Angeles #6,7,8,9,12 of Schedule B
40020708
Sunset LaBrea #13 (but only to the extent of the right of first
40020707 offer contained therein), 15 of Schedule B
Costa Mesa #8 of Schedule B
80127028
Champions Terrace #6,7,8,10 of Schedule C
96116311B
Deerbrook #6,7,8,9,10 of Schedule C
96116311A
Mesquite and Carrollton #5,6,7,10,11,12,13 of Schedule C
96302992
2.
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EXHIBIT A
LEGAL DESCRIPTION
[to be attached]
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EXHIBIT A
Legal Description of Orange County Property
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EXHIBIT A
DESCRIPTION: THE LAND REFERRED TO HEREIN IS SITUATED IN THE COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
A PORTION OF BLOCK 34 OF PACIFIC FARMS, IN THE CITY OF LOS ANGELES, AS PER MAP
RECORDED IN BOOK 1 PAGE 43 AND 44 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE SOUTHERLY LINE OF OLYMPIC BOULEVARD, AS
DESCRIBED IN THE DEED TO THE STATE OF CALIFORNIA, RECORDED IN BOOK 17331 PAGE
349, OFFICIAL RECORDS OF SAID COUNTY, WITH A LINE WHICH IS PARALLEL WITH AND
DISTANT 308.19 FEET SOUTHWESTERLY (MEASURED ALONG THE NORTHWEST LINE OF SAID
BLOCK FROM THE NORTHEASTERLY LINE OF SAID BLOCK 34; THENCE EASTERLY ALONG SAID
SOUTHERLY LINE ON A CURVE, CONCAVE TO THE NORTH, HAVING A RADIUS OF 2055 FEET, A
DISTANCE OF 162.72 FEET, MORE OR LESS, TO A POINT DISTANT WESTERLY 158.86 FEET,
MEASURED ALONG SAID SOUTHERLY LINE FROM THE NORTHEASTERLY LINE OF SAID BLOCK 34;
THENCE SOUTHERLY PARALLEL WITH SAID NORTHEASTERLY LINE, 58.97 FEET, MORE OR
LESS, TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A
RADIUS OF 308.6 FEET, WHICH SAID CURVE INTERSECTS THE SOUTHERLY LINE OF SAID
BLOCK 34 AT A POINT DISTANT WESTERLY THEREON 110.65 FEET FROM THE MOST EASTERLY
CORNER OF SAID BLOCK; THENCE SOUTHEASTERLY ALONG SAID CURVE 180.74 FEET, MORE OR
LESS, TO SAID SOUTHERLY LINE; THENCE WESTERLY ALONG SAID SOUTHERLY LINE, 221.28
FEET, MORE OR LESS, TO A LINE WHICH IS PARALLEL WITH THE NORTHEASTERLY LINE OF
SAID BLOCK 34 AND PASSES THROUGH THE POINT OF BEGINNING; THENCE NORTHWESTERLY
ALONG SAID PARALLEL LINE, 199.35 FEET, TO THE POINT OF BEGINNING.
PARCEL 2:
AN EASEMENT FOR SPUR TRACK PURPOSES, OVER A STRIP OF LAND, 9 FEET IN WIDTH,
MEASURED AT RIGHT ANGLES, OR RADIALLY, EXTENDING FROM THE SOUTHERLY LINE OF SAID
OLYMPIC BOULEVARD, TO THE SOUTHERLY LINE OF SAID BLOCK 34, THE SOUTHWESTERLY
LINE OF SAID STRIP OF LAND BEING THE NORTHEASTERLY LINE OF THE HEREINBEFORE
DESCRIBED PARCEL 1.
PARCEL 3
PARCEL D OF PARCEL MAP L.A. NO. 5795, IN THE CITY OF LOS ANGELES, AS PER
MAP FILED IN BOOK 205, PAGES 27, 28 AND 29 OF PARCEL MAPS, IN THE OFFICE
OF THE COUNTY RECORDER OF SAID COUNTY.
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EXHIBIT A (CONTINUED)
PARCEL 4
NON EXCLUSIVE EASEMENTS FOR ROADWAY, WALKWAY, SURFACE DRAINAGE AND INGRESS AND
EGRESS AND PARKING OF MOTOR VEHICLES AND INCIDENTAL PURPOSES OVER THOSE PORTIONS
OF PARCELS A, B, C PARCEL MAP L.A. NO. 5795, IN THE CITY OF LOS ANGELES, AS PER
MAP FILED IN BOOK 205, PAGES 27, 28, AND 29 OF PARCEL MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY AS MORE FULLY SET IN PARAGRAPH 3A AND 3B AND
DELINEATED ON EXHIBIT "A" IN THE DECLARATION OF ESTABLISHMENT OF RESTRICTIONS
AND COVENANTS AFFECTING LAND RECORDED MARCH 23, 1988, AS INSTRUMENT NO.
88-39602.
PARCEL 5
AN EXCLUSIVE EASEMENT IN, TO, OVER, UNDER AND ACROSS THOSE PORTIONS OF PARCEL A,
B, C SHOWN ON PARCEL MAP NO. 5795 AS RECORDED IN BOOK 205, PAGES 27-29 OF PARCEL
MAPS, (THE "SERVIENT PROPERTY") AS REQUIRED FOR THE EXISTENCE AND MAINTENANCE OF
ANY AND ALL IMPROVEMENTS WHICH ENCROACH AS OF THE DATE HEREOF UPON THE SERVIENT
PROPERTY FROM ANY PORTION OF PARCEL D AS SHOWN ON PARCEL MAP NO. 5795 AS
RECORDED IN BOOK 205, PAGES 27-29, INCLUSIVE, AS OF THE DATE HEREOF. GRANTOR
FURTHER CONFIRMS AND AGREES THAT GRANTEE HAS THE RIGHT TO ENTER THE SERVIENT
PROPERTY TO REPAIR, MAINTAIN SUCH ENCROACHING IMPROVEMENT WHICH EXIST AS OF THE
DATE HEREOF, AS GRANTED IN DEED DATED MARCH 17, 1988, RECORDED MARCH 23, 1988 AS
INSTRUMENT NO. 88- 396094, OFFICIAL RECORDS.
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EXHIBIT A
Legal Description of Los Angeles County Property
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EXHIBIT "A"
A METES AND BOUNDS DESCRIPTION of a tract or parcel of land containing 0.9189
acres (40,028 square feet) located in the Wherry B. Adams Survey, Abstract No.
95, Harris County, Texas; being that portion know as Reserve "G" in Deerbrook
Mall, a subdivision of 95.1343 acres approved by the city of Humble, Texas, on
March 11, 1984 (not yet recorded) the 95.1343 acre tract described in deed of
record under File Code No. 070-00-0208, Clerk's File No. J331875 of the Harris
County Official Public Records of Real Property; said 0.9189 acre parcel being
more particularly described as follows:
BEGINNING at a 1-inch iron pipe with cap found at the most westerly southwest
corner of Deerbrook Mall, same being the southeast corner of Lot 10, Block 9 in
the Second Replat of Northshire Section 3, a subdivision of record in Volume
306; Page 124 of the Harris County Map Records; said iron pipe parking the
southwest corner of the herein described parcel;
THENCE, North 20(degree) 53' 25" West, 116.00 feet along the east line of the
aforementioned Lot 10, to a 1-inch iron pipe with cap found on the southerly
right-of-way line of Canterbury Driver (60-foot wide);
THENCE, North 20(degree) 00' 44" East, 43.57 feet to an "X" mark found in
concrete for the northwest corner of the parcel being described;
THENCE, North 69(degree) 05' 29" East, 109.82 feet to a 5/8 inch iron foot set
at an angle point;
THENCE, North 36(degree) 24' 19" East, 59.36 feet to a nail set for corner in
the arc of a non-tangent curve to the left;
THENCE, 13.12 feet along the arc of said non-tangent curve to the 1 ft. having a
radius of 547.58 feet, a central angle of 01(degree) 2" and chord bearing South
57(degree) 04' 48" East, 13.12 feet to a nail set at the end of said curve and
point of tangency;
THENCE; South 57(degree) 45' 59" East, 224.17 feet to a 5/8-inch iron rod set
for the southeast corner;
THENCE; South 69(degree) 06' 35" West 303.80 feet to the POINT OF BEGINNING AND
CONTAINING 0.9189 acre (40,028 square feet) of land area.
18
EXHIBIT A
Legal Description of Orange County Property
19
EXHIBIT A
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF
ORANGE, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1 OF LOT LINE ADJUSTMENT NO. LL-92-03, IN THE CITY OF COSTA MESA,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER INSTRUMENT RECORDED
SEPTEMBER 3, 1992 AS INSTRUMENT NO. 92-596398 OF OFFICIAL RECORDS OF SAID
ORANGE COUNTY.
20
EXHIBIT A
Legal Description of Dallas County Property
21
EXHIBIT A
Legal description of land:
TRACT I
Lots 7A and 7B, in Block A, of TREASURY ADDITION, an addition to the
City of Mesquite, Dallas County, Texas, according to the Map or Plat
thereof recorded in Volume 84240, Page 3231, Map Records, Dallas
County, Texas, and Certificate of Correction of Error, filed 12/15/89,
recorded in Volume 89243, Page 2092, Real Property Records, Dallas
County, Texas.
TRACT II, PARCEL I
BEING a track of land in the M.P. Green Survey, Abstract No. 519,
Dallas County, located in the city limits of Carrollton, Texas, and
also being a part of Lot 1, Block 2, CAPITAL CENTER - PHASE I, as filed
for record in Volume 83168, Page 2036, Plat Records, Dallas County,
Texas and being more particularly described as follows:
BEGINNING at a found iron rod in the west right-of-way of Interstate
Highway 35-E, said point being the southeast corner of Lot 1, Block 2
"Capital Center Phase I" as filed for record in Volume 83168, Page
2036, Plat Records, Dallas County, Texas;
THENCE South 59(degree)19'36" West, departing said right-of-way line, a
distance of 575.75 feet to a set iron rod for a corner, said corner
being on the east right-of-way line of Crescent Drive (60 feet wide);
THENCE North 30(degree)40'24" West, along said east right-of-way line,
a distance of 483.74 feet to a set iron rod for a corner;
THENCE North 59(degree)19'36" East, a distance of 595.32 feet to a set
iron rod for a corner, on the west right-of-way line of said Interstate
Highway 35-E;
THENCE Southeasterly, along said right-of-way and along a circular
curve to the left, having a radius of 11,609.16 feet whose back tangent
bears South 27(degree)09'44" East, through a central angle of
2(degree)23'22", an arc distance of 484.17 feet to the POINT OF
BEGINNING AND CONTAINING 282,432 square feet or 6.484 acres of land
more or less.
1.
22
TRACT II, PARCEL II
BEING a tract of land in the M.P. Green Survey, Abstract No. 519,
Dallas County, located in the City of Carrollton, Texas, and also being
a part of Lot 1, Block 2, CAPITAL CENTER - PHASE I, as filed for record
in Volume 83168, Page 2036, Plat Records of Dallas County, Texas, and
being more particularly described as follows:
BEGINNING at a set iron rod in the common east line of proposed
Crescent Drive (60 foot R.O.W.) and the west line of Lot 1, Block 2
"Capital Center Phase I" and said POINT OF BEGINNING being North
30(degree)40'24" West, along said common line a distance of 483.74 feet
from the southwest corner of Lot 1, Block 2 "Capital Center - Phase I";
THENCE North 30(degree)40'24" West, continuing along said common line a
distance of 209.17 feet to a set iron rod for a corner;
THENCE North 59(degree)19'36" East, departing said common line a
distance of 610.05 feet to a set iron rod for a corner in the west
right-of-way line of Interstate Highway 35-E;
THENCE Southeasterly, along said right-of-way line and along a circular
curve to the left having a radius of 11,609.19 feet whose black tangent
bears South 26(degree)07'38" East, through a central angle of
1(degree)02'06" an arc length of 209.69 feet to a set iron rod for a
corner;
THENCE South 59(degree)19'36" West, departing said west right-of-way
line, a distance of 595.32 feet to the POINT OF BEGINNING AND
CONTAINING 125,997 square feet or 2.893 acres of land more or less.
2.
23
EXHIBIT A
Legal Description of Harris County Property
24
EXHIBIT A TO SPECIAL WARRANTY DEED
PARCEL 1
ALL OF RESERVE "B" OF CASHEL FOREST, SECTION ONE, ACCORDING TO THE MAP OR PLAT
THEREOF RECORDED IN VOLUME 176, PAGE 35 OF THE MAP RECORDS OF HARRIS COUNTY,
TEXAS
PARCEL 2
ALL OF RESERVE "G" OF DEERBROOK MALL, ACCORDING TO THE MAP OR PLAT THEREOF
RECORDED IN VOLUME 334 PAGE 1 OF THE MAP RECORDS OF HARRIS COUNTY, TEXAS, AND
BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS ON EXHIBIT "A" ATTACHED
HERETO.
25
EXHIBIT B TO PURCHASE AGREEMENT
FORM OF MEMORANDUM OF OPTION
TO REPURCHASE IN RECORDABLE FORM
attached
26
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
COOLEY GODWARD & CASTRO
HUDDLESON & TATUM
5 PALO ALTO SQUARE
3000 EL CAMINO REAL
PALO ALTO, CA 94306-2115
ATTN: ANNA B. POPE, ESQ.
MEMORANDUM OF OPTION
THIS MEMORANDUM OF OPTION (the "Memorandum") is entered into as of
, 1996 between JTS CORPORATION ("JTS"), and JACK TRAMIEL ("Tramiel"), in
reference to the following:
1. OPTION. JTS and Tramiel entered into that certain AGREEMENT
FOR PURCHASE AND SALE OF REAL PROPERTY WITH REPURCHASE OPTION (the "Purchase
Agreement") as of the day of September, 1996.
2. GRANT OF OPTION TO REPURCHASE. Pursuant to the Purchase
Agreement, Tramiel did and does hereby, grant JTS an option to purchase the
property described on the attached Exhibit A (the "Property") from Tramiel upon
the terms and conditions set forth in the Purchase Agreement.
3. ADDITIONAL ENCUMBRANCES, ALTERATIONS. Tramiel agreed in the
Purchase Agreement, among other things, that Tramiel shall not further encumber
the Property, grant any easements, or agree to any restrictions upon the
Property without the prior written consent of JTS. Tramiel shall not make any
alterations to the Property nor convey title to the Property to any third person
until such time as the option shall have expired.
4. NOTICE. The purpose of this Memorandum is to identify the
Purchase Agreement for the purposes of information and notice. The sole
instrument for determining the terms, conditions and provisions of, and the
parties' rights under, the Purchase Agreement is the Purchase Agreement itself.
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum as
of the day and year first hereinabove written.
JTS Corporation
By
------------------------------- ---------------------------------
Jack Tramiel
Its
------------------------------
1.
27
STATE OF ______________________________ )
) ss.
COUNTY OF _____________________________ )
On _______________________, 19___, before me,_______________________________,
personally appeared _______________________________________________,
[ ] personally known to me
-OR-
[ ] proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the
entity upon behalf of which the person(s) acted,
executed the instrument.
Witness my hand and official seal.
___________________________________
Signature of the Notary
This certificate must be attached Title or Type of Document:
to the document described at right: Number of Pages: Date of Document:
Signer(s) other than named above:
(C)1993 National Notary Association, Canoga Park, CA
CAPACITY CLAIMED BY SIGNER
Though statute does not require the
Notary to fill in the data below, doing so
may prove invaluable to persons relying
on the document.
[ ] Individual
[ ] Corporate Officer(s)
[ ] Partner(s) [ ] Limited
[ ] General
[ ] Attorney-in-Fact
[ ] Trustee(s)
[ ] Guardian/Conservator
[ ] Other:
SIGNER IS REPRESENTING:
Name of person(s) or entity(ies)
STATE OF ____________________________ )
) ss.
COUNTY OF ___________________________ )
On _______________________, 19___, before me,_____________________________,
personally appeared _______________________________________________,
[ ] personally known to me
-OR-
[ ] proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the
entity upon behalf of which the person(s) acted,
executed the instrument. SIGNER IS REPRESENTING:
Witness my hand and official seal.
___________________________________
Signature of the Notary
CAPACITY CLAIMED BY SIGNER
Though statute does not require the
Notary to fill in the data below, doing so
may prove invaluable to persons relying
on the document.
[ ] Individual
[ ] Corporate Officer(s)
[ ] Partner(s) [ ] Limited
[ ] General
[ ] Attorney-in-Fact
[ ] Trustee(s)
[ ] Guardian/Conservator
[ ] Other:
SIGNER IS REPRESENTING:
Name of person(s) or entity(ies)
2.
28
This certificate must be attached Title or Type of Document:
to the document described at right:
Number of Pages: Date of Document:
Signer(s) other than named above:
(C)1993 National Notary Association, Canoga Park, CA
3.