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AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (the "Agreement") is made
and entered into as of this 6th day of September, 1996, by and between DEL
MONTE CORPORATION, a New York corporation ("Del Monte"), and PIXAR ANIMATION
STUDIOS, a California corporation ("Pixar").
RECITALS:
This Agreement is entered into on the basis of the following
facts, understandings and intentions of the parties:
A. Del Monte is the owner of certain real property more
particularly described in Exhibit A hereto (the "Real Property"). Pixar
desires to purchase from Del Monte the Real Property, all appurtenances to the
Real Property (the "Appurtenances"), and all intangible property pertaining to
the Real Property and Appurtenances (the "Intangible Property"; the Real
Property, Appurtenances and Intangible Property being hereinafter collectively
referred to as the "Property").
B. Pixar desires to develop the Real Property for its
headquarters facility (the "Headquarters Facility"). Such development is
dependent upon Pixar assuring itself, in its sole discretion, that the Real
Property, and Appurtenances and Intangible Property, to the extent applicable,
may be developed for the Headquarters Facility. Specifically, but without
limiting the generality of the foregoing, Pixar desires to assure that it can
obtain the governmental and other approvals necessary
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or appropriate to develop and construct the Headquarters Facility; that the
soils and environmental conditions on, and access and utilities available to,
the Real Property are suitable for development, construction, operation and use
of the Real Property for the Headquarters Facility; and that the state of title
of the Property is acceptable to Pixar. Pixar desires to enter into this
Agreement to purchase the Property, subject to performance of due diligence
necessary in Pixar's sole discretion to satisfy itself with respect to such
matters.
C. Del Monte is willing to sell the Property to Pixar,
subject to Pixar satisfying itself with respect to such matters. In order to
effectuate the foregoing, the parties desire to enter into this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the foregoing Recitals,
and the mutual covenants and obligations of the parties herein contained, the
parties agree as follows:
1. Purchase and Sale. Del Monte shall sell the Property to
Pixar, and Pixar shall purchase the Property from Del Monte, upon all of the
terms, covenants and conditions set forth in this Agreement.
2. Purchase Price. Pixar shall pay, as the "Purchase Price" for
the Property, the sum of Six Million Three Hundred Thirty-Two Thousand Forty
Dollars ($6,332,040.00). Pixar shall pay the Purchase Price, after crediting
against the Purchase Price the Deposit paid under Section 3(a) below (the "Net
Purchase Price"), and subject to any withhold effected pursuant to Section 8(c)
below, in cash through escrow as hereinafter provided.
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3. Deposit: Liquidated Damages.
(a) Deposit. As an earnest money deposit on account of
the Purchase Price, Pixar shall, (i) concurrently with the execution of this
Agreement by the parties, deposit with Chicago Title Company of Alameda County,
One Kaiser Plaza, Oakland, California ("Title Company"), the sum of One Hundred
Fifty Thousand Dollars ($150,000.00) (the "Initial Deposit"); and (ii) within
ninety (90) days after the date of this Agreement, if Pixar has not previously
terminated this Agreement pursuant to Section 4(c) below, instruct Title
Company to (A) pay to Del Monte the Initial Deposit, and (B) pay to Del Monte
the additional sum of One Hundred Fifty Thousand Dollars ($150,000.00) (the
"Additional Deposit"; the Initial Deposit, Additional Deposit and, if made
pursuant to Section 8(b) below, the Demolition Contribution, being hereinafter
collectively referred to as the "Deposit"; and the date on which Pixar is
obligated to pay the Additional Deposit to Del Monte or may terminate this
Agreement pursuant to Section 4(c) below being hereinafter referred to as the
"Additional Deposit Date"). The Deposit shall be applied against the Purchase
Price for the Property. If Pixar terminates this Agreement pursuant to Section
4(c) below within the time period therein specified, then the Initial Deposit
shall be promptly repaid by Title Company to Pixar.
(b) Non-Refundable Deposit: Liquidated Damages. THE
PARTIES ACKNOWLEDGE THAT, AS OF THE ADDITIONAL DEPOSIT DATE, AND AT ALL TIMES
THEREAFTER, THE DEPOSIT IS NON-REFUNDABLE,
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EXCEPT IN THE EVENT OF A DEFAULT BY DEL MONTE ON ITS OBLIGATIONS UNDER THIS
AGREEMENT WHICH PREVENTS THE CLOSE OF ESCROW. UPON ANY TERMINATION OF THIS
AGREEMENT FROM ANY CAUSE WHATSOEVER AFTER THE ADDITIONAL DEPOSIT DATE
(INCLUDING THE DEFAULT OF PIXAR ON ITS OBLIGATIONS UNDER THIS AGREEMENT, SUCH
AS THE OBLIGATION TO MAKE THE ADDITIONAL DEPOSIT IF PIXAR DOES NOT TIMELY
TERMINATE THIS AGREEMENT PURSUANT TO SECTION 4(c) BELOW), DEL MONTE SHALL HAVE
THE ABSOLUTE, UNCONDITIONAL RIGHT TO RETAIN THE DEPOSIT AS COMPENSATION IN FULL
FOR ALL COSTS, EXPENSES AND DAMAGES RESULTING FROM TERMINATION OF THIS
AGREEMENT, INCLUDING ON ACCOUNT OF THE DEFAULT OF PIXAR IN THE PERFORMANCE OF
ITS OBLIGATIONS UNDER THIS AGREEMENT. THE PARTIES HAVE DETERMINED, AFTER DUE
CONSIDERATION OF ALL FACTS AND CIRCUMSTANCES PERTAINING AS OF THE DATE OF THIS
AGREEMENT THAT, IN THE EVENT OF A DEFAULT OF PIXAR IN THE PERFORMANCE OF ITS
OBLIGATIONS UNDER THIS AGREEMENT, THE DAMAGES WHICH DEL MONTE WOULD SUFFER AS A
RESULT OF SUCH DEFAULT WOULD BE IMPRACTICABLE OR IMPOSSIBLE TO ASCERTAIN.
THEREFORE, AFTER DUE CONSIDERATION OF ALL SUCH FACTS AND CIRCUMSTANCES, THE
PARTIES HAVE DETERMINED THAT THE AMOUNT OF THE DEPOSIT IS A FAIR AND REASONABLE
AMOUNT TO COMPENSATE DEL MONTE FOR ALL SUCH DAMAGES AND SHALL CONSTITUTE DEL
MONTE'S LIQUIDATED DAMAGES ON ACCOUNT OF SUCH DEFAULT IN LIEU OF ANY OTHER
RIGHT OR REMEDY AVAILABLE AT LAW OR IN EQUITY (INCLUDING THE RIGHT TO PURSUE
SPECIFIC ENFORCEMENT OF THIS AGREEMENT OR OTHER EXTRAORDINARY EQUITABLE RELIEF)
WHICH DEL MONTE MIGHT HAVE ON ACCOUNT OF SUCH DEFAULT OF PIXAR, AND DEL MONTE
HEREBY KNOWINGLY, AFTER FULL ADVICE FROM COUNSEL AND OTHER CONSULTANTS
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OF ITS CHOICE, WAIVES ANY RIGHT TO PROCEED IN LAW OR IN EQUITY ON ANY CAUSE OF
ACTION OR FOR EXTRAORDINARY RELIEF, OTHER THAN TO RECOVER THE AMOUNT OF THE
DEPOSIT HEREUNDER AS LIQUIDATED DAMAGES PURSUANT TO THIS SECTION 3(b). TO
EVIDENCE THE FOREGOING AGREEMENT, THE PARTIES HAVE INITIALED THIS Section 3(b)
WHERE INDICATED BELOW.
_______ INITIALS OF DEL MONTE ______ INITIALS OF PIXAR
4. Conditions Precedent.
(a) Right to Review Property. Pixar's obligation to
purchase the Property is conditioned upon Pixar's review and approval, in
Pixar's sole discretion, of all aspects of the Property related or germane, in
Pixar's sole judgment, to Pixar's contemplated development, construction, use
and operation of the Property for the Headquarters Facility. Specifically, but
without limiting the generality of the foregoing, Pixar shall have the right to
review and satisfy itself, in its sole discretion, that (i) it will have the
ability to obtain all governmental and quasi-governmental (such as public
utilities) approvals, consents and permits upon terms and conditions acceptable
to Pixar, in its sole discretion, necessary or appropriate to develop,
construct, use, operate and maintain the Headquarters Facility; (ii) the soils
and environmental conditions on, under and about the Real Property are
satisfactory for development, construction, use, operation and maintenance of
the Headquarters Facility; (iii) utilities and services sufficient to support
the Headquarters Facility are available and with sufficient capacity; (iv) Del
Monte is in a position to
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fulfill the covenants concerning title set forth in Section 5 below in the
manner and within the time periods therein specified; (v) the cost to Pixar for
the design, construction, development, use, operation and maintenance of the
Headquarters Facility is feasible and appropriate; and (vi) all other matters
germane to Pixar's decision to proceed with the purchase and sale of the
Property pursuant to this Agreement in order to develop, construct, use,
maintain and operate the Headquarters Facility on the Real Property are
satisfactory.
(b) Efforts to Review Property. Pixar shall conduct and
complete its review of the Property under Section 4(a) above with due diligence
and within ninety (90) days after the date of this Agreement (the "Review
Period"). Should Pixar determine at any time during the Review Period not to
purchase the Property as a result of its due diligence review under Section
4(a) above, Pixar shall promptly so notify Del Monte. The parties shall
cooperate in Pixar's review of the Property, communicating with each other on
the progress of such review and making timely requests for cooperation where
such cooperation would be useful in such review. Del Monte shall execute any
and all documents reasonably necessary to assist Pixar in conducting such
review, including serving as the applicant for governmental approvals to the
extent required by applicable laws, ordinances, rules and regulations. Del
Monte's cooperation with Pixar hereunder shall be without cost or expense to
Del Monte, and to the extent such cooperation creates any liabilities for Del
Monte, Pixar shall indemnify, defend, protect
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and hold Del Monte harmless from any and all such liabilities, including
losses, claims, damages, causes of action, costs and expenses (such as
reasonable attorneys' fees), associated with such liabilities.
(c) Fulfillment and Waiver. If Pixar determines within
the Review Period not to purchase the Property as a result of its due diligence
review of the Property pursuant to Section 4(a) above, then Pixar shall
terminate this Agreement by notice to Del Monte given within and prior to the
expiration of the Review Period. The due diligence review of the Property is
solely for the benefit of Pixar, and Pixar may waive such review at any time
during the Review Period, but only by a notice signed by Pixar. If Pixar has
not given notice of its approval of the Property or termination of this
Agreement within the Review Period, then Pixar shall be deemed to have approved
the Property, Pixar shall have no further right to terminate this Agreement
pursuant to this Section 4(c), and the Deposit shall become nonrefundable as
specified in Section 3(b) above. If Pixar terminates this Agreement as
provided in this Section 4(c), then the parties shall have no further rights,
obligations or liability hereunder, except for the express indemnity
obligations contained in this Agreement.
(d) Right of Entry: Applications for Approvals
Indemnification. Del Monte shall at all times allow Pixar, and its authorized
representatives and agents, full and complete access to all documents and
records prepared by or on behalf of Del Monte, and surveys, inspection reports,
tests and test
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results, relating to the physical and environmental condition, and utility
availability and capacity, of the Real Property, (the "Property Data"). Del
Monte shall, within one (1) week after the execution of this Agreement by the
parties, deliver to Pixar true, correct and complete copies of all Property
Data (i) previously delivered to Del Monte by Kaiser Foundation Health Plan,
Inc. ("Kaiser"), in connection with Kaiser's due diligence investigation of the
Property for Kaiser's contemplated acquisition of the Property, or (ii)
received, prepared or generated by, or on behalf of, Del Monte in connection
with its ownership, occupancy, use or sale of the Property. In addition to the
Property Data from Kaiser delivered pursuant to clause (i) above, Del Monte
shall, from time to time upon request of Pixar, use reasonable good faith
efforts to obtain such additional surveys, inspections, reports, tests and test
results from Kaiser which Kaiser may have prepared or received from consultants
in connection with Kaiser's due diligence investigation of the Property for
Kaiser's contemplated acquisition of the Property, but, except for using such
good faith due diligence efforts, Del Monte shall have no liability to Pixar
for any refusal or failure of Kaiser to supply such Property Data to Del Monte
for delivery to Pixar. Pixar, and its authorized representatives and agents,
shall have the right at all times, after reasonable advance notice to Del Monte
and, at Del Monte's option, in the company of a Del Monte representative, to
enter the Property in order to perform such tests, inspections, sampling or
surveys deemed necessary or appropriate by Pixar, in its sole discretion, in
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connection with Pixar's analysis of the Real Property or attainment of
governmental or other approvals for its development. As soon as reasonably
practicable after performing any test, inspection or survey hereunder, Pixar
shall restore the affected portion of the Real Property to a condition
reasonably similar to that immediately prior to such test, inspection or
survey, taking into consideration the Demolition Work to be performed by Del
Monte pursuant to Section 8(b) below. Pixar shall effect entry under this
Section 4(d) so as to minimize any interference with the performance of Del
Monte's remediation of the Real Property under the Remediation Plan pursuant to
Section 7(a)(iii) below, or with the performance of the Demolition Work. Del
Monte shall cooperate with Pixar in connection with any sampling, test,
inspection or survey hereunder. Del Monte shall be responsible for disposal of
any drilling spoils which are generated as a result of any test, inspection or
survey undertaken by Pixar hereunder, if such spoils contain hazardous
materials. Del Monte shall effect such disposal pursuant to the applicable
provisions of Section 7(a)(ii) below. Pixar shall indemnify, defend, protect
and hold Del Monte harmless from and against any and all claims, losses,
damages, liabilities, injuries, costs or expenses (including reasonable
attorneys' fees) arising out of or related to such entry, or performance of
such tests, sampling, inspections or surveys, except that Pixar shall have no
liability under this Section 6 for any decrease in the value of the Real
Property due to the discovery of any previously undiscovered hazardous
materials contamination or
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other previously undiscovered property defect.
(e) Hazardous Materials Tests. Notwithstanding the
provisions of Section 4(d) above, if Pixar desires to perform any test,
sampling or inspection with respect to the presence of hazardous materials (as
defined in Section 7(a)(vi) below) in, about, on or under the Real Property,
then Pixar shall so notify Del Monte, and Del Monte shall promptly perform such
testing, sampling or inspection on behalf of Pixar in accordance with Pixar's
specifications, utilizing Del Monte's consultants, and shall provide Pixar with
the results of such testing, sampling or inspection. The reasonable cost and
expense of such testing, survey or inspection (and restoration of the Real
Property, if necessary) shall be paid by Pixar. Prior to commencing any
testing, survey or inspection hereunder, Del Monte shall deliver to Pixar the
estimate of costs and expenses thereof, and Pixar shall have the right to
review and approve the amount of such costs and expenses; and if Pixar
disapproves, then it shall have the right to modify the scope and/or
specifications of such testing, survey or inspection, or decline to have such
testing, survey or inspection performed. Pixar shall have the right to have
its consultants observe, review and approve any testing, sampling or inspection
performed on Pixar's behalf by Del Monte hereunder and to require Del Monte's
consultants to perform at Pixar's cost as herein provided any additional
testing, sampling or inspection resulting from such observation, review and
approval. If Del Monte believes that performing such testing, sampling or
inspection is unreasonable, it shall so
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notify Pixar and the parties shall confer and consult in good faith (together
with their respective consultants, if necessary or appropriate) to attempt to
agree on whether or what testing, sampling or inspection is reasonable. If the
parties are unable to agree within five (5) days of Del Monte's notice to
Pixar, the issue of the reasonableness of the testing, sampling or inspection
requested by Pixar shall be submitted to arbitration pursuant to Section 15
below. For purposes of the foregoing, it shall be reasonable for Pixar to
request and Del Monte shall not refuse to approve, as unreasonable, the
following testing, sampling or inspection: (i) testing requested by any
governmental agency to allow Pixar's development of the Real Property pursuant
to applicable law, ordinance, order, policy, rule or regulation; (ii) soil
sampling and analysis for halogenated volatile organic compounds, petroleum
hydrocarbons, and/or industrial solvents, or other chemical compounds that may
be related to historic activities at that location, in the vicinity of the
former paint and oil storage area, located north of the former boiler house on
the Real Property; (iii) sampling and analysis for polychlorinated biphenyls in
the vicinity of any former or existing electrical transformers; (iv)
groundwater sampling and analysis for volatile organic compounds and/or
petroleum hydrocarbons on the northern and eastern property boundaries; and (v)
testing, sampling, analysis and/or inspection for newly discovered conditions
as a result of performance by Del Monte of the Demolition Work pursuant to
Section 8 below.
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5. Title Matters.
(a) Manner of Conveyance. Title to the Real Property and
Appurtenances shall be conveyed from Del Monte to Pixar by grant deed in fee
simple absolute (the "Deed"), subject to no exceptions to title of any kind or
character other than: (i) a lien to secure payment of real estate taxes not
delinquent; and (ii) the exceptions to title listed in Exhibit B hereto
(collectively, the "Conditions of Title").
(b) Survey. At any time within forty-five (45) days
after the date of this Agreement, Pixar may, at Pixar's cost and expense,
procure an ALTA survey of the Real Property, prepared by a licensed surveyor or
civil engineer acceptable to Pixar, and in form and substance acceptable, and
properly certified, to Pixar and Title Company, so as to enable Title Company
to issue to Pixar an Owner's ALTA 1970 Form B extended coverage title insurance
policy on Close of Escrow pursuant to Section 6 below. If (i) the results of
such survey show an encroachment, easement or other title defect not comprised
in the Conditions of Title, and (ii) any such matter is not acceptable to Pixar
in its sole discretion, Pixar shall notify Del Monte of such unacceptable
condition within thirty (30) days after Pixar's receipt of the survey
hereunder. Del Monte shall have thirty (30) days after receipt of Pixar's
notice to cure the unacceptable defect in title to Pixar's sole satisfaction.
If within such 30-day period Del Monte cannot make reasonably adequate
arrangements to remove and/or relocate such matter, or obtain title insurance
protection with respect thereto, then
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Pixar may either terminate this Agreement or consummate the purchase of the
Property pursuant to this Agreement. If Pixar elects to consummate this
transaction, any matter disclosed by the Survey shall constitute a Condition of
Title.
(c) Intangible Property. Del Monte shall convey the
Intangible Property to Pixar by the Assignment of Intangible Property attached
hereto as Exhibit C (the "Assignment").
(d) Title Insurance. Evidence of delivery of title to
the Real Property in accordance with this Section 5 shall be the willingness of
Title Company to issue, upon payment of its regularly scheduled premium, its
Owner's 1970 Form B ALTA extended coverage policy of title insurance, with any
endorsements specified by Pixar, in the amount of the Purchase Price (or such
greater amount as Pixar may specify and Title Company may accept), showing
title to the Real Property and Appurtenances, as applicable, vested of record
in Pixar, subject to no exceptions, conditions, easements, reservations or
encumbrances of any kind or character, other than the Conditions of Title (the
"Title Policy").
6. Consummation of Transaction Through Escrow. The parties shall
consummate the transactions under this Agreement through escrow established at
the offices of Title Company. The parties shall close escrow (the "Close of
Escrow") on the date which is not later than (i) the date which is six (6)
months after the date of this Agreement, or (ii) if Pixar exercises its right
to cause Del Monte to commence the Demolition Work prior to the close of escrow
pursuant to Section 8(b) below within ten
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(10) days after the Additional Deposit Date, then the later of (A) the date
established under clause (i) above, or (B) the date of full and final
completion of the Demolition Work by Del Monte pursuant to Section 8(b) below
(the date established under either of the foregoing clauses (i) or (ii) being
hereinafter referred to as the "Closing Date"). The parties shall make the
following deposits and close escrow in the following manner:
(a) Del Monte. Del Monte shall deposit into escrow: (i)
the Deed, duly executed and acknowledged by Del Monte; (ii) the Assignment,
duly executed and acknowledged by Del Monte; and (iii) such other documents as
are necessary to close escrow in accordance with the terms and conditions of
this Agreement, including appropriate escrow instructions.
(b) Pixar. Pixar shall deposit into escrow: (i) the Net
Purchase Price, together with such other funds as are required to pay Pixar's
share of closing costs and prorations, all in immediately available funds; and
(ii) such other documents as are necessary to close escrow in accordance with
the terms and conditions of this Agreement, including appropriate escrow
instructions.
(c) Close. Title Company shall close escrow by
performing the following steps in the order set forth below:
(i) Record Deed. Record the Deed in the
appropriate Official Records and deliver it to Pixar;
(ii) Delivery of Assignment. Deliver the
Assignment to Pixar;
(iii)Purchase Price. After deducting Del
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Monte's share of closing costs and prorations, and effecting any withhold
required pursuant to Section 8(c) below, pay the balance of the Net Purchase
Price to or for the account of Del Monte;
(iv) Title Insurance. Issue and deliver to Pixar
one (1) original and two (2) duplicate copies of the Title Policy; and
(v) Conformed Copies. Deliver to each party
certified and conformed copies of all documents and instruments deposited by
either party in escrow under this Section 6.
(d) Costs and Fees. Del Monte shall pay one half (1/2)
of the escrow fee, the premium for the CLTA premium attributable to the Title
Policy in the amount of the Purchase Price and the cost of any endorsements to
ensure against title defects under Section 5(b) above, recording costs for the
Deed, all documentary transfer taxes and conveyancing taxes (other than
transfer taxes imposed by the City of Emeryville), and one half (1/2) of any
transfer taxes imposed by the City of Emeryville. Pixar shall pay the cost of
any survey procured by it under Section 5(b) above, one half (1/2) of the
escrow fee, and one half (1/2) of any transfer taxes imposed by the City of
Emeryville, the premium for the Title Policy above the CLTA premium
attributable to the Title Policy in excess of the Purchase Price and for ALTA
extended coverage thereunder, together with endorsements requested by Pixar as
part of the Title Policy. Any other costs or expenses of escrow shall be paid
in accordance with custom and usage in the County of Alameda, California. Real
estate taxes and assessments for the
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Real Property shall be prorated as of the date the Deed is recorded.
(e) Delivery of Possession. Upon Close of Escrow, Del
Monte shall deliver to Pixar exclusive possession of the Real Property and
Appurtenances, free and clear of any rights, claims or occupancy of third
parties, subject, however, to the Conditions of Title.
7. Del Monte's Covenants. Warranties and Representations. Del
Monte covenants, represents and warrants to Pixar as follows:
(a) Hazardous Materials.
(i) Warranty and Representation. To Del Monte's
knowledge, and except as disclosed by the "Environmental Reports" listed in
Exhibit D hereto, there are no hazardous materials on, in, under, at or from,
the Real Property, nor has any release of hazardous materials occurred or come
to be located on, in, under, at or from the Real Property, and no such release
threatens to enter the Real Property. Del Monte shall be solely responsible
for the investigation, monitoring, removal, treatment, disposal, transport, and
remediation, in accordance with all applicable laws, ordinances, rules and
regulations, of all hazardous materials located on, in, under, at or from, the
Real Property, or of those hazardous materials which come on to, or are
released on, in, under or at the Real Property, on or before the Close of
Escrow under this Agreement. Del Monte shall undertake and accomplish the
foregoing in a manner acceptable to, and obtain no further action letters from,
all governmental
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agencies having jurisdiction over such hazardous materials under applicable
laws, ordinances, rules and regulations.
(ii) Remediation of Real Property. Except as
otherwise provided in Section 7(a)(iii) below, if, after the Close of Escrow
under this Agreement, any hazardous material covered by this Section 7(a)(ii),
regardless of whether it was previously disclosed to Pixar, remains on the Real
Property, or is uncovered, encountered or discovered or otherwise revealed
(including as a result of Pixar's development of the Real Property, such as
grading of the Real Property for construction of improvements thereon), and
Pixar is either required to perform or undertake some act or prevented from
undertaking or doing some act by a governmental agency (including undertaking
development, construction, use, operation or maintenance of the Headquarters
Facility) on account of such hazardous materials under any applicable law,
ordinance, order, policy, rule or regulation, then Pixar shall so notify Del
Monte. At Pixar's option, Pixar may prepare a construction and
post-construction risk management plan in consultation with governmental
agencies having jurisdiction which, if prepared by Pixar, Pixar shall submit to
Del Monte for review and comment and, to the extent it relates to performance
by Del Monte of its obligations under this Section 7(a)(ii), for approval by
Del Monte. Upon approval thereof by governmental agencies having jurisdiction
and Del Monte, such risk management plan shall govern, to the extent
applicable, performance by Del Monte of its obligations following Close of
Escrow under this Section 7(a)(ii). Del Monte shall review,
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comment on, and approve, such risk management plan within ten (10) days after
receipt thereof from Pixar and, if Del Monte fails to notify Pixar of any
comment or approval thereon within such 10-day period, Del Monte shall be
deemed to have approved the same. Upon receipt of Pixar's notice, Del Monte
shall promptly apply for and obtain any and all necessary permits and approvals
from governmental agencies having jurisdiction (including remediation,
monitoring, removal, treatment, health and safety risk management and other
plans related to the presence of hazardous materials on, in, under, at or from
the Property) and, immediately after obtaining such permits and approvals,
perform its obligations under this Section 7(a)(ii) using all due diligence.
Prior to submitting any application or other information to any governmental
agency to fulfill its obligations under this Section 7(a)(ii) following Close
of Escrow, Del Monte shall submit such application and/or information to Pixar
for review, comment and approval. Pixar shall render any approval within five
(5) business days after receipt thereof from Del Monte; Pixar shall approve
such application and/or information if it is consistent with the obligations of
Del Monte and the applicable standards and requirements of this Section
7(a)(ii); and if Pixar has not approved such application and/or information
within such 5 business-day period, then Pixar will be deemed to have approved
such application and/or information. Pixar will cooperate with Del Monte in
Del Monte's efforts to obtain the necessary permits and approvals from
governmental agencies having jurisdiction. If
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Del Monte does not, within ten (10) days after obtaining such permits and
approvals (or if none are required, within thirty (30) days after receipt of
notice from Pixar), commence to perform such obligations and thereafter
diligently pursue such obligations to completion, then Pixar shall have the
right, at its sole option, to perform on behalf of Del Monte the obligations of
Del Monte under this Section 7(a)(ii), utilizing those methods Pixar reasonably
deems acceptable, and Del Monte shall promptly upon demand reimburse to Pixar
all reasonable costs and expenses incurred by Pixar in the performance of such
obligations on behalf of Del Monte. Pixar grants a non-exclusive license to
Del Monte, and its authorized representatives and agents, to enter the Real
Property under such terms and conditions as Pixar may from time to time
reasonably prescribe to perform Del Monte's obligations hereunder. Prior to
effecting such entry, Del Monte shall notify Pixar of its request to enter the
Real Property hereunder, describe the purpose for which entry is requested and
the activities to be undertaken by Del Monte, and provide to Pixar for its
review and approval all plans, specifications, reports, criteria or other
relevant information with respect to such activities on the Real Property
hereunder. Pixar shall have ten (10) business days after receipt to comment on
and approve such information; and if Del Monte has not received such comment
and approval within such ten (10) business day period, then Pixar will be
deemed to have approved such information. Del Monte shall effect entry solely
to perform the activities described in its notice hereunder, and solely within
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the scope of the information approved by Pixar hereunder. If any portion or
condition of the Real Property, or any improvements then located thereon, are
damaged by any activities of Del Monte in effecting such entry or carrying out
its activities hereunder, Del Monte shall restore the affected portion of the
Real Property and/or improvements to the condition which existed immediately
prior to such entry utilizing methods and within a time frame for performance
acceptable to Pixar. Del Monte shall effect entry under this Section 7(a)(ii)
so as to minimize any interference with the use and occupancy by Pixar of, or
conduct of business by Pixar on, the Real Property and the improvements then
located thereon. Del Monte shall indemnify, defend, protect and hold Pixar
harmless from and against any and all claims, liens, losses, damages,
liabilities, injuries, costs or expenses (including reasonable attorneys' fees)
arising out of or related to any entry effected hereunder. To the extent
applicable, transportation and disposal of hazardous materials from the Real
Property (including pursuant to Section 7(a)(iii) below) shall take place under
a hazardous waste manifest designating Del Monte as the generator and utilizing
Del Monte's hazardous waste generator number or, if a hazardous waste manifest
is not applicable to the hazardous material, pursuant to a substantially
equivalent non-hazardous material manifest showing that Del Monte is the party
responsible for the generation, shipment, transportation and disposal of the
hazardous material. All costs and expenses of compliance by Del Monte with its
obligations under this Section 7(a)(ii) shall be borne solely by Del Monte.
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In addition, if as a result of an occurrence or circumstance pursuant to which
Del Monte must perform its obligations under this Section 7(a)(ii) and (i) as a
result thereof, Pixar is required to uncover or reperform work of construction
in its Headquarters Facility, or (ii) the completion of the critical path
construction schedule for construction of the Headquarters Facility is delayed
by more than five (5) days, then in either such event Del Monte shall reimburse
Pixar for all actual, reasonable out-of-pocket expenses incurred by Pixar on
account of such occurrence or events. Subject to the foregoing, Del Monte
shall have no liability to Pixar for consequential damages arising out of any
occurrence or events giving rise to performance by Del Monte, or the actual
performance by Del Monte, of its obligations under this Section 7(a)(ii).
(iii) Remediation of Existing Conditions. With
respect to the conditions identified in the Environmental Reports (other than
the Asbestos Reports identified in Exhibit F hereto), Del Monte has developed
and implemented a plan to remediate all such conditions (the "Remediation
Plan"). The Remediation Plan has been preliminarily approved by the California
Regional Water Quality Control Board for the San Francisco Bay Region (the
"Regional Board") and Alameda County Department of Environmental Health (the
"Alameda County DEH") and Del Monte is in the process of obtaining, and shall
obtain as soon as possible after the date of this Agreement, the Regional
Board's and Alameda County DEH's final approval of implementation of the
Remediation Plan. Promptly after obtaining such final
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approval, Del Monte shall complete implementation of the Remediation Plan as
required by the Regional Board, Alameda County DEH and any other agencies
having jurisdiction over such activities (the Regional Board, Alameda County
DEH and such other agencies being hereinafter collectively referred to as the
"Jurisdictional Agencies"), and shall diligently continue to perform the
Remediation Plan to completion in accordance with its terms, subject only to
the monitoring and any further actions hereinafter specified. If Pixar elects
to require Del Monte to perform the Demolition Work prior to the Close of
Escrow pursuant to Section 8(b) below, then Del Monte shall complete the
Remediation Plan as herein specified on or before Close of Escrow (subject to
extensions only for force majeure causes beyond Del Monte's reasonable control,
in which event the Closing Date determined in accordance with Section 6 above
shall be delayed by one day for each day of delay in completion of the
Remediation Plan in accordance with the foregoing provisions); and if Pixar
does not elect to require Del Monte to perform the Demolition Work prior to the
Close of Escrow pursuant to Section 8(b) below, then Del Monte shall complete
the Remediation Plan as herein specified as soon as possible after the
completion of the Demolition Work. Upon completion of the Remediation Plan
hereunder, Del Monte shall obtain and provide to Pixar a true, correct and
complete copy of all no further action letters from the Jurisdictional
Agencies, in standard form and substance (exemplars of which are attached
hereto as Exhibit E), which approves Del Monte's remediation activities, the
Remediation
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Plan, and the implementation of the Remediation Plan, and which requires no
further remediation action, other than monitoring of wells, if any, pursuant to
the Remediation Plan (the "No Action Letters"). Del Monte shall continue to
undertake those actions (including monitoring of wells if required) necessary
to complete the Remediation Plan, obtain any final approvals or sign-offs from
any Jurisdictional Agencies as may be required under applicable laws,
ordinances, rules and regulations, and remediate all hazardous materials as
required by the Remediation Plan, consistent with the requirements of all
Jurisdictional Agencies. If, after completion of the Remediation Plan and
issuance of the No Action Letters, monitoring, remediation, removal or
investigatory work is required by the Jurisdictional Agencies for any hazardous
materials which were located on, in, under, at or from the Real Property on or
before the Close of Escrow under this Agreement, whether or not covered by the
Remediation Plan, then Del Monte shall promptly perform such work pursuant to
Section 7(a)(ii) above. If any of the Jurisdictional Agencies requires
continued maintenance or installation of monitoring wells on the Real Property
which will remain in place after Close of Escrow, Pixar shall have the right to
review and approve the location of such monitoring wells and shall have the
right to decline to approve the location of such monitoring wells if such
monitoring wells are to be located under planned buildings, improvements or
structures which Pixar intends to locate on the Property. If, after approval
of the location of such monitoring wells, a Jurisdictional Agency requires that
a monitoring well be
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relocated, then Del Monte shall be responsible for affecting such relocation
pursuant to Section 7(a)(ii) above and shall pay the cost of such relocation;
but if Pixar desires to relocate a monitoring well after Pixar's approval of
the location thereof, then Pixar shall, subject to obtaining the prior approval
of the Jurisdictional Agencies, be responsible for affecting such relocation
and the cost thereof. Upon approval by the Jurisdictional Agencies of closure
of any monitoring well maintained hereunder, Del Monte shall effect such
closure in accordance with the applicable requirements of the Jurisdictional
Agencies, and any other governmental agencies having jurisdiction. To the
extent applicable, the provisions of Section 7(a)(ii) shall apply to Del
Monte's obligations hereunder, including the access license granted thereunder
and the use of Del Monte's hazardous waste generator number for effecting the
Hazardous Materials Plans described hereunder. Del Monte shall bear all costs
and expenses of performing its obligations under this Section 7(a)(iii).
(iv) Disclaimer. Subject to the matters set forth
in Sections 7(a)(i) and (iii), Del Monte has not received any notice of any
action or proceeding relating to any hazardous materials or any release thereof
on, in, under, at or from the Real Property. Except as disclosed by the
Environmental Reports, neither Del Monte, nor to Del Monte's best knowledge,
any predecessor in interest as owner, occupant or operator of the Real
Property, or any portion of the Real Property, or any facility located thereon,
nor any other third person, used,
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generated, manufactured, stored, released or disposed of on, in, at or under
the Real Property, or transported to or from the Real Property, any hazardous
materials.
(v) Indemnification by Del Monte. Del Monte
shall retain and assume responsibility for, and shall indemnify, defend,
protect and hold harmless, Pixar and its directors, officers, employees,
agents, licensees, invitees, contractors, and their respective directors,
officers, employees and agents, from and against any and all liabilities,
losses, damages, claims, causes of action, costs or expenses arising out of or
relating to the presence or release of hazardous materials on, under, at or
from the Real Property on or before the Close of Escrow under this Agreement,
including: (i) all damages directly or indirectly arising out of the use,
generation, storage, release or disposal of hazardous materials; (ii) all
reasonable attorneys' and consultants' fees; and (iii) the costs of preparing,
obtaining approval of and implementing the Remediation Plan or the measures
described in Section 7(a)(ii), or of any other repair, cleanup, removal or
decontamination required of Del Monte by this Section 7(a), and the preparation
and implementation of any closure plans, whether such action is required of Del
Monte prior to or following transfer of title of the Real Property to Pixar or
the issuance of any No Action Letter.
(vi) Definition of Hazardous Materials. As used
herein, "hazardous materials" includes: petroleum; asbestos; radioactive
materials; and all substances defined as
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"hazardous substances," "hazardous materials," "hazardous wastes," "solid
wastes," "pollutants" or "contaminants" (or words of similar import) in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended (42 U.S.C. Section 9601, et seq.), the Hazardous Materials
Transportation Act (49 U.S.C. Section 1801, et seq.), the Resource Conservation
and Recovery Act (42 U.S.C. Section 6901 et seq.), the Porter-Cologne Water
Quality Control Act (California Water Code 13000, et seq.), the Hazardous Waste
Control Law (California Health and Safety Code 25100, et seq.), and any other
similar applicable laws or the regulations promulgated thereunder.
(vii) Successors Bound. In addition to the
provisions of Section 13 below regarding successors to and assigns of the
parties, if a third-party acquires all or substantially all of Del Monte's
assets by a transaction other than the acquisition of all or substantially all
of the outstanding shares of Del Monte (or such portion thereof that such
third-party obtains effective control of the management and affairs of Del
Monte), then Del Monte shall in connection with such transaction require that
such third-party assume in writing all of the obligations and be bound by the
provisions of this Section 7(a). In the event of such a transaction, Del Monte
shall deliver to Pixar such written assumption agreement promptly after the
consummation of such transaction.
(b) Pending Assessments and Eminent Domain. Del Monte
has no knowledge, and has received no notice, of any pending proceeding for the
imposition of any special assessment,
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or the formation of a special assessment district, or for a proceeding in
eminent domain, any of which would affect in any manner the Real Property, or
any portion thereof.
(c) Copies of Documents. All of the plans,
specifications, documents, reports, studies and other materials which Del Monte
has prepared and provides to Pixar under this Agreement are complete, true and
correct copies thereof; and all of the plans, specifications, documents,
reports, studies and other materials prepared by third parties which Del Monte
provides to Pixar under this Agreement are, to Del Monte's knowledge, complete,
true and correct copies thereof.
(d) Non-Foreign Status. Del Monte is not a foreign
person, foreign corporation, foreign partnership, foreign trust or foreign
estate, as those terms are defined in the Internal Revenue Code and Regulations
thereunder. At the Close of Escrow, Del Monte shall deliver to Pixar a fully
executed affidavit in the form attached hereto as Exhibit H.
(e) Authority. Del Monte has full power and authority,
and has obtained all necessary consents, to enter into this Agreement, to sell
and transfer the Property to Pixar and to otherwise perform its obligations
under this Agreement. The persons executing this Agreement on behalf of Del
Monte have full power and authority so to do in accordance with the foregoing.
(f) No Litigation or Other Breach. No litigation,
proceeding (administrative or otherwise), order, or judgment is pending or
outstanding against, or affects, Del Monte, or the Real Property, or any
portion thereof, and Del
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Monte has not committed any breach of any agreement, document or instrument to
which Del Monte is a party, any of which could in any manner adversely affect
the Real Property, or any portion thereof, or adversely affect Del Monte's
ability to perform its obligations under this Agreement.
(g) Compliance With Laws. To Del Monte's knowledge, the
Real Property, and every portion thereof, is in compliance with all laws,
ordinances, rules and regulations governing the use and operation thereof and
Del Monte has not received any notice of violation of any such laws,
ordinances, rules or regulations, except as disclosed in the Environmental
Reports.
(h) Agreements With Respect to Property. On or before
the Close of Escrow, Del Monte shall not enter into any contracts, agreements
or leases which would create any rights in or encumbrance on the Property, or
any portion thereof or interest therein, which would survive the Close of
Escrow. On or before the Close of Escrow, Del Monte shall terminate all
contracts, agreements or leases which would create any rights in or
encumbrances on the Property, or any portion thereof or interest therein. On
or before the Close of Escrow, Del Monte shall perform all obligations which
pertain to the Property, or the ownership, use or occupancy thereof, and shall
indemnify, defend, protect and hold harmless Pixar, and its directors,
officers, employees, agents and authorized representatives, from and against
any and all claims, liabilities, losses, damages, causes of action, costs or
expenses (including reasonable
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attorneys' fees), arising out of or in connection with the Property, or the use
or occupancy thereof, and accruing on or before the Close of Escrow, other than
those arising out of Pixar's entry of the Real Property pursuant to Section
4(d) above.
(i) Disclosure by Del Monte of Material Information. To
Del Monte's knowledge, Del Monte has, or will, prior to the Close of Escrow,
disclose to Pixar all material information regarding the physical condition and
state of title of, and utility availability to, the Real Property.
The warranties and representations of Del Monte under this Section 7 shall be
deemed restated and remade by Del Monte in their entirety as of Close of Escrow
under this Agreement. In addition to the other indemnities contained in this
Section 7, Del Monte shall indemnify, defend, protect and hold harmless Pixar,
and its directors, officers, employees, agents, and authorized representatives,
from and against all liabilities, losses, damages, claims, causes of action,
costs or expenses (including reasonable attorneys' fees), arising out of or
relating to any breach by Del Monte of any of the warranties, representations
or covenants contained in this Section 7. Whenever in this Section 7 reference
is made to the "knowledge" of Del Monte in connection with Del Monte's
warranties and representations contained in this Section 7, such reference
shall mean the actual knowledge, as of the date of this Agreement, of Steven P.
Ronzone, Director of Property Management of Del Monte,
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and any former and current employee of Del Monte that Del Monte could
reasonably expect to have such knowledge and in connection with the
environmental condition of the Real Property also the knowledge of CH2MHill,
Inc., or any other consultant retained by Del Monte in connection with
rendering services to Del Monte on the environmental condition of the Real
Property, which has been communicated in writing or otherwise by such
consultant to any employee of Del Monte.
8. Demolition and Asbestos Removal: Pixar Right to Grade Site.
(a) Del Monte Demolition Work and Asbestos Removal. Del
Monte has informed Pixar that the improvements on the Real Property contain
asbestos, and that some asbestos has been removed by Environmental Control
Industries under the supervision of Clayton Environmental pursuant to the
requirements of governmental agencies having jurisdiction over such activities
and pursuant to the Asbestos Reports and specifications prepared by Clayton
Environmental identified in Exhibit F hereto (the "Asbestos Specifications").
Except as otherwise provided in Section 8(b), Del Monte shall, using a
qualified, reputable, experienced, licensed contractor or contractors selected
by Del Monte in its sole discretion, promptly after the Close of Escrow,
demolish all improvements located on the Real Property (the "Demolition Work")
in accordance with the specifications attached hereto as Exhibit G (the
"Demolition Specifications") and, in connection with the Demolition Work,
remove and dispose of all debris and all asbestos from the Real Property in
accordance with
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the requirements of the Demolition Specifications and of governmental agencies
having jurisdiction, all applicable laws, ordinances, rules and regulations,
and the Asbestos Reports and Asbestos Specifications. Prior to bidding or
negotiating a contract for performance of the Demolition Work, Del Monte shall
provide to Pixar complete copies of all plans and specifications prepared by or
on behalf of Del Monte for the Demolition Work; and Pixar shall have the right
to review and comment on such plans and specifications to ensure consistency
with the Asbestos Specifications and Demolition Specifications. Pixar shall
complete such review and comment within ten (10) days after receipt of such
plans and specifications from Del Monte and, if Pixar has not notified Del
Monte of any comments thereon within such 10-day period, then Pixar shall be
deemed to have no comments thereon. Del Monte shall complete the Demolition
Work (including removal and disposal of all debris and all asbestos from the
Real Property) not later than four (4) months after the Close of Escrow
(subject to extensions only for force majeure causes beyond Del Monte's
reasonable control). Transportation and disposal of the asbestos from the
demolished improvements shall take place under a hazardous waste manifest
designating Del Monte as the generator and utilizing Del Monte's hazardous
waste generator number. Upon completion of the Demolition Work, Del Monte
shall deliver to Pixar all permits, notices, approvals and sign-offs required
from or by governmental agencies having jurisdiction under applicable laws,
ordinances, rules and regulations and copies of all manifests and receipts with
respect
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to completion of the Demolition Work and the removal and disposal of asbestos
and other materials from the Real Property. If, after the Close of Escrow,
Pixar discovers during the course of initial development of the Real Property
for Pixar's intended purposes any materials or structures which were required
to be removed by Del Monte in accordance with the Demolition Specifications,
Pixar shall so notify Del Monte and shall upon giving such notice have the
right to effect such removal, transport and disposal, and Del Monte shall
reimburse Pixar for all reasonable costs and expenses incurred by Pixar for
such removal, transport and disposal; or, upon written notice from Pixar to Del
Monte, Del Monte shall promptly effect such removal, transport and disposal at
Del Monte's sole cost and expense, but without undue interference with the
performance by Pixar of its development activities on the Real Property. If,
upon receipt by Del Monte of Pixar's notice hereunder, Del Monte disputes that
it was required to remove any or all of the materials or structures identified
in Pixar's notice in accordance with the Demolition Specifications, such
dispute shall be resolved by arbitration pursuant to Section 15 below.
(b) Performance of Demolition Work and Asbestos Removal
Prior to Close of Escrow. Pixar may elect, at any time after the date of this
Agreement and before ten (10) days after the Additional Deposit Date, to
require that Del Monte perform the Demolition Work (including removal and
disposal of all debris and all asbestos from the Real Property) pursuant to
Section 8(a) above, in accordance with the terms and conditions of this
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Section 8(b). Pixar shall make such election by written notice to Del Monte
and, if Pixar makes such election prior to the Additional Deposit Date, such
election shall be accompanied by the Additional Deposit, the instructions to
title company to pay to Del Monte the Initial Deposit and a waiver by Pixar of
any right to terminate this Agreement pursuant to Section 4(c) above. Promptly
after receipt of Pixar's notice, Del Monte shall commence the Demolition Work
and complete the Demolition Work not later than four (4) months after the date
of Pixar's notice (subject to force majeure causes beyond Del Monte's
reasonable control) in accordance with the provisions of Section 8(a) above.
Pixar shall reimburse Del Monte for fifty percent (50%) of the cost of
performing the Demolition Work up to an amount not exceeding Two Hundred
Thousand Dollars ($200,000) (the "Maximum Reimbursement Amount").
Reimbursement to Del Monte by Pixar of the cost of the Demolition Work
hereunder shall be effected on a progress payments basis as the Demolition Work
proceeds upon receipt by Pixar of Del Monte's contractor's applications for
payment, conditional (or final, if applicable) lien releases and waivers from
such contractor and all subcontractors and material suppliers in the form
required by applicable California law, and a certification by an authorized
officer or representative of Del Monte that the costs shown due by the
contractor's application for payment have been duly incurred and are due and
owing by Del Monte, and that the Demolition Work has progressed to the point
indicated in accordance with the contractor's application in accordance with
the
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requirements of Section 8(a) above. Within twenty (20) days after receipt of
such information by Pixar, Pixar shall reimburse Del Monte for fifty percent
(50%) of the amount shown due on the contractor's application for payment up
to, but not exceeding in the aggregate, the Maximum Reimbursement Amount. Upon
reimbursement by Pixar of the Maximum Reimbursement Amount, Del Monte shall
bear all further costs for performance of the Demolition Work hereunder. All
amounts paid by Pixar to Del Monte as reimbursement for the cost of the
Demolition Work hereunder shall be credited against the Net Purchase Price at
the Close of Escrow.
(c) Establishment of Cost of Demolition Work and Asbestos
Removal: Withhold at Escrow. The cost for performance of the Demolition Work
by Del Monte pursuant to Section 8(a) shall be established either by
competitive bidding, or by a negotiated bid. Del Monte shall have the right,
in its sole discretion, to utilize either procedure, and shall establish the
cost for the performance of the Demolition Work in all events prior to the
Close of Escrow (or if Pixar elects to cause Del Monte to perform the
Demolition Work prior to the close of escrow pursuant to Section 8(b) above, in
a manner which enables Del Monte to perform the Demolition Work in accordance
with the time period for completion therein specified). Upon establishment of
the cost of the Demolition Work hereunder, Del Monte shall provide to Pixar a
copy of the contract with the contractor performing the Demolition Work,
setting forth the cost of the Demolition Work. Unless Pixar exercises its
option to require
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Del Monte to commence the Demolition Work prior to the Close of Escrow pursuant
to Section 8(b) above, an amount equal to one hundred-twenty-five percent
(125%) of the cost of the Demolition Work as established hereunder shall be
withheld with Title Company in escrow until completion by Del Monte of the
Demolition Work pursuant to the provisions of Section 8(a) above. Upon
submission by Del Monte to Title Company and to Pixar of the final application
for payment from the contractor performing the Demolition Work, final lien
releases and waivers in accordance with applicable California law from such
contractor and all subcontractors and material suppliers, and a certification
by an authorized officer or representative of Del Monte that final payment is
due such contractor, and that the Demolition Work (including removal and
disposal of all debris and all asbestos from the Real Property) has been
completed in accordance with Section 8(a) above, then the amount withheld in
escrow hereunder shall be released and paid to Del Monte within five (5)
business days after such submission in accordance with its instructions.
(d) Pixar Right to Grade Site. Upon completion by Del
Monte of the Demolition Work, Pixar shall have the right to enter the Real
Property in order to commence grading of the Real Property pursuant to Pixar's
grading specifications therefor. Pixar shall effect entry hereunder pursuant
to the applicable provisions of Section 4(d) above (including the indemnity
provisions therein contained), shall pay all costs and expenses of its grading
activities hereunder (unless such cost or expense is attributable to, or any
other liability arises as a
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consequence of, the presence of hazardous materials on, in, under or about the
Real Property covered by Section 7(a)(ii) above), and shall perform grading
activities in order to prepare the Real Property for development by Pixar of
the improvements thereon for Pixar's intended use of the Real Property in
accordance with applications made by Pixar for .applicable governmental permits
and approvals for such development. Pixar shall provide to Del Monte copies of
all specifications for such grading work for Del Monte's review and approval
prior to effecting entry to commence grading hereunder.
9. Pixar Covenants, Warranties and Representations. Pixar
covenants, represents and warrants to Del Monte as follows:
(a) Authority. Pixar has full power and authority, and
has obtained all necessary consents, to enter into this Agreement, to purchase
the Real Property to Pixar and to otherwise perform its obligations under this
Agreement. The persons executing this Agreement on behalf of Pixar have full
power and authority so to do in accordance with the foregoing.
(b) No Litigation or Other Breach. No litigation,
proceeding (administrative or otherwise), order, or judgment is pending or
outstanding against, or affects, Pixar, and Pixar has not committed any breach
of any agreement, document or instrument to which Pixar is a party, any of
which could adversely affect Pixar's ability to perform its obligations under
this Agreement.
(c) Agreements with Respect to Property. Except as
provided in Sections 7(a) and (h) and Section 8s, after the
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Close of Escrow, Pixar shall assume all obligations with respect to the
Property transferred to Pixar under this Agreement, and shall, except as
otherwise provided in Sections 7(a) and (h) and Section 8 above, indemnify,
defend, protect and hold harmless Del Monte, and its directors, officers,
employees, agents and authorized representatives, from and against any and all
claims, liabilities, losses, damages, causes of action, costs or expenses
(including reasonable attorneys' fees), arising out of or in connection with
the Property, or the use or occupancy thereof, and accruing after the Close of
Escrow.
(d) As-Is Transaction. Except for the warranties and
representations made by Del Monte under Section 7 above, Pixar understands and
acknowledges, and hereby warrants and represents, that it is purchasing the
Property in its "as-is" condition as of the date of Close of Escrow and that,
except for Del Monte's warranties and representations contained in this
Agreement, it has relied entirely on its own independent investigation of the
condition of the Property and the utility of the Property for Pixar's intended
use.
The warranties and representations of Pixar under this Section
8 shall be deemed restated and remade by Pixar in their entirety as the date of
Close of Escrow under this Agreement. In addition to the other indemnity
contained in this Section 9, Pixar shall indemnify, defend, protect and hold
harmless Del Monte, and its directors, officers, employees, agents, and
authorized representatives, from and against all liabilities, losses,
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damages, claims, causes of action, costs or expenses (including reasonable
attorneys' fees), arising out of or relating to any breach by Pixar of any of
the warranties, representations or covenants contained in this Section 8.
10. Exclusive Rights. The parties understand and acknowledge
that, prior to the Additional Deposit Date (or earlier waiver of the right of
Pixar to terminate this Agreement pursuant to Section 4(c) above), the parties
have a material interest in not actively negotiating with third-parties, in the
case of Pixar for alternative sites for its Headquarters Facility, and in the
case of Del Monte for backup offers for the purchase and sale of the Property.
Accordingly, prior to the Additional Deposit Date (or if earlier, the date
Pixar waives its right to terminate this Agreement pursuant to Section 4(c)
above), Pixar shall not pursue or investigate any alternative sites for its
Headquarters Facility, or respond to proposals for, or engage in, negotiations
for such acquisition, or physical or environmental review of any such
alternative sites, and Del Monte shall not undertake any activities to market
the Property to third-parties, including negotiation with third-parties who may
have an interest in acquiring the Property, soliciting offers therefore or
engaging real estate brokers or finders for such purpose.
11. Confidentiality Agreement. Concurrently with the execution of
this Agreement by the parties, the parties shall enter into the Confidentiality
Agreement in the form attached hereto as Exhibit I, pursuant to which the
information,
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documents, data, studies and reports covered by the Confidentiality Agreement
shall be kept confidential. The provisions of the Confidentiality Agreement
are incorporated into and made a part of this Agreement as if set forth in full
in this Agreement. Pixar shall provide its consultants and agents who inspect,
study and evaluate the Property with a copy of this Section 11 and the
Confidentiality Agreement and obtain such consultants and/or agents' agreement
to be bound by the terms of this Section 11 and the Confidentiality Agreement.
12. Brokerage Commission. Pixar has informed Del Monte that Pixar
retained AMB Corporate Real Estate Advisors ("AMB") as a real estate broker in
connection with the transactions contemplated by this Agreement. Del Monte has
informed Pixar that Del Monte has retained the Koll Company ("Koll") and Gray &
Reynolds ("G&R") as real estate brokers in connection with the transactions
contemplated by this Agreement. Pixar shall pay to AMB any commissions or fees
due AMB on account of the transactions under this Agreement pursuant to
separate agreements entered into between Pixar and AMB; and Del Monte shall pay
to Koll and G&R any commissions or fees due Koll and/or G&R on account of the
transactions under this Agreement pursuant to separate agreements entered into
between Del Monte and Koll and G&R. Subject to the foregoing, Pixar and Del
Monte each warrant and represent to the other that they have dealt with no real
estate broker, agent or finder in connection with the transactions contemplated
by this Agreement, in a manner which would give rise to a claim by any such
person as a procuring
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cause of the transactions contemplated by this Agreement, or payment of any fee
or commission on account thereof. Each party shall indemnify, defend, protect
and hold the other party harmless from and against any and all claims,
liabilities, losses, causes of action, costs or expenses (including reasonable
attorneys' fees), arising out of- the breach by the indemnifying party of the
foregoing warranty and representation.
13. Successors and Assigns. Neither party shall have the right to
assign this Agreement, or any of its rights, duties, or obligations hereunder,
except that Pixar shall have the right, without Del Monte's written approval,
to assign this Agreement, or any of its rights, duties or obligations
hereunder, or to direct that title to the Property be conveyed directly without
an assignment of this Agreement to any of the following (each of which is
referred to herein as a "Permitted Pixar Transferee"): (i) a subsidiary or
affiliate of Pixar formed for the purpose of acquiring the Property pursuant to
this Agreement, or to a third party which acquires all or substantially all of
Pixar's assets or stock, or into which Pixar is merged (a "Pixar Entity"); or
(ii) an entity, whether or not a Pixar Entity, in connection with the
implementation of any financing for the purchase of the Property, including a
sale/leaseback, any transaction commonly known as a "synthetic lease," "tax
ownership/operating lease," or "off balance sheet financing," or any other
arrangement with a related or unrelated entity pursuant to which the assignee
grants to Pixar (or any Pixar Entity) the right to lease the Property following
Close of Escrow under this Agreement. In connection
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with any assignment by Pixar permitted by this Section 13, Pixar shall not be
required to delegate any of its duties under this Agreement, nor shall the
Permitted Pixar Transferee be required to assume any of the obligations or
liabilities of Pixar under this Agreement (including liability for Pixar's
representations, indemnity obligations and warranties under this Agreement,
except the obligations of Pixar under Section 7(a)(ii) which arise after the
Close of Escrow, which the Permitted Pixar Transferee shall either assume or
expressly delegate to Pixar the responsibility and obligation for performance
of such obligations), but whether or not such duties are delegated or assumed,
the obligations, indemnities, representations and warranties made by Del Monte
pursuant to this Agreement (including the provisions of Section 7(a) above)
shall inure to the benefit of and be enforceable by any Permitted Pixar
Transferee to the extent of the assignment thereof effected by Pixar to such
Permitted Pixar Transferee hereunder. Del Monte shall have the right, without
Pixar's written approval, but subject to the provisions of Section 7(a)(vii),
above to assign this Agreement, and the rights and obligations of Del Monte
under this Agreement, to any parent, subsidiary or affiliate of Del Monte,
which concurrently receives title to the Real Property. In the event either
party effects an assignment of this Agreement in whole or in part, pursuant to
the foregoing provisions, then the assigning party shall provide to the other
party notice of such assignments, together with the name and principals of the
assignee, a copy of the documents assigning the Agreement in whole or in part
(including any rights
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assigned), and the basis on which the assignee satisfies the conditions of this
Section 13. Subject to the foregoing, the terms, covenants and conditions
herein contained shall be binding upon and inure to the benefit of the parties,
and their respective heirs, successors and assigns, except that (i) the
obligations of a party shall only be binding on an assignee of such party to
the extent they are expressly assumed in writing by such assignee, (ii) no
assignment effected by a PARTY SHALL diminish the rights of either Del Monte or
Pixar or enlarge the obligations of either Del Monte or Pixar under this
Agreement, and (iii) the assigning party shall remain personally liable for the
performance of all of its obligations under this Agreement following any such
assignment. Any assignments made in violation of the provisions of this
Section 13 shall null and void and in no force or effect.
14. Notices. All notices required to be given, or otherwise
formally given, under this Agreement shall, to be effective, be in writing.
The address of each party for the purpose of all notices permitted or required
by this Agreement is as follows:
To Del Monte: One Market Plaza
P.O. Box 193575
San Francisco, California 94119
Attn: Steven P. Ronzone,
Director of Property Management
With copies to: Del Monte Corporation
One Market Plaza
P.O. Box 193575
San Francisco, California 94119
Attn: Janet E. Shestakov,
Associate Counsel
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To Pixar: 1001 West Cutting
Richmond, California 94804
Attn: Thomas G. Carlisle,
Facilities Director
With copies to: Cassidy, Cheatham, Shimko & Dawson
20 California Street, Suite 500
San Francisco, California 94111
Attn: Stephen K. Cassidy
The notice address of either party set forth above may be changed by written
notice given not less than five (5) days prior to the date such change is to be
effected. All notices under this Agreement shall be in writing, shall be
properly addressed and shall be sent by personal delivery, by United States
Mail (registered, certified, or Express Mail, return receipt requested and
postage prepaid), or by courier delivery service. All such notices shall be
considered delivered: (i) if personally delivered, on the date of delivery;
(ii) if sent by United States Mail in the manner prescribed above, on the date
shown on the return receipt for acceptance or rejection; or (iii) if sent by
courier delivery service, on the date of delivery as shown by the written
delivery record of such service.
15. Arbitration of Dispute. All disputes ensuing under this
Agreement shall be made by arbitration, conducted in accordance with this
Section 15, except that a party may seek prohibitory injunctive relief without
first submitting such matter or dispute to arbitration. The parties may
mutually agree to a different alternative dispute resolution mechanism by
jointly executing an agreement in writing describing such alternative
mechanism.
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(a) Selection of Arbitrators. By written notice to the
other party, a party shall request a meeting to be held within twenty (20) days
after sending such notice, to be attended by the other party for the purpose of
resolving any such dispute. At such meeting, the parties shall attempt in good
faith to resolve the dispute. If the dispute is not resolved at such meeting,
or if the meeting is not held, either party may, within ten (10) days after the
date of (or set for) such meeting, make a written request to resolve such
dispute by arbitration.
(b) Selection of Arbitrators. Within ten (10) days after
the date of receipt of such notice, each party shall select an arbitrator.
Such arbitrators shall meet within twenty (20) days after selection for the
purpose of resolving the dispute. If, within such 20-day period such
arbitrators are unable to resolve the dispute, then within an additional 5-day
period after the expiration of such 20-day period, they shall select a third
neutral arbitrator. If such arbitrators are unable, within such 5-day period,
to appoint the third arbitrator hereunder, the parties shall jointly appoint
such third arbitrator within an additional 5-day period. If the parties are
unable to appoint such third arbitrator within such additional 5-day period,
then either party may request appointment of such third arbitrator by the then
head official of the San Francisco office of the American Arbitration
Association, and neither party shall raise any objections as to the appointment
made by such official or as to such official's full power and jurisdiction to
entertain the application for and make the appointment. Within
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twenty (20) days after selection of the third arbitrator hereunder, the
arbitrators shall meet for the purpose of resolving the dispute and shall
render a decision resolving the dispute within thirty (30) days after the
selection of the third arbitrator hereunder. Upon appointment of a third
arbitrator hereunder, a majority decision shall be final at any stage of the
proceeding, absent fraud or gross error. The arbitrators shall resolve the
dispute solely in accordance with the applicable provisions of this Agreement
with respect to the matter or dispute in arbitration, and the arbitrators shall
have no power to modify any of the provisions of this Agreement. If an
arbitrator appointed hereunder dies, resigns, refuses to act or becomes legally
incapacitated, his or her replacement or successor shall be appointed in like
manner specified in this Section 15. In any arbitration proceeding hereunder,
each arbitrator shall have substantial training and professional experience in
the subject matter of the arbitration, but shall not have been employed by a
party for at least five (5) years prior to the arbitration proceeding. The
losing party in the arbitration as determined by the arbitrators shall bear the
costs and expense of all arbitrators.
(c) Decision: Effect of Decision. The arbitrators shall
render their decision in writing and as promptly as possible after the
designation of the last arbitrator, but in no event later than
one-hundred-eighty (180) days after the date of the designation of the last
arbitrator. A copy of the decision of the arbitrators shall be signed by at
least a majority of the
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arbitrators and given to each party in the manner provided in Section 14 for
the giving of notice. The decision of the arbitrators shall be final,
conclusive and binding on the parties, absent fraud or gross error. The
decision of the arbitrators may be entered as a judgment in a court of
competent jurisdiction.
(d) Procedural Rules. All arbitration under this Section
15 shall be conducted in accordance with the applicable rules of the American
Arbitration Association, to the extent such provisions do not conflict with the
procedures herein set forth. Except as provided in this Section 15, compliance
with this Section 15 is a condition precedent to the commencement by a party of
judicial proceeding arising out of a matter or dispute which is subject to
arbitration hereunder. All statutes of limitation that would otherwise be
applicable shall apply to any arbitration proceeding hereunder. Any
attorney-client privilege and other protections against disclosure of
confidential information, including any protection afforded by the work product
privilege for attorneys that could otherwise be claimed by a party shall be
available to and may be claimed by such party in any arbitration proceeding
hereunder. California Code of Civil Procedure 1283.05, and any successor
statute, shall apply to any and all discovery matters in any arbitration
proceeding hereunder. Neither party waives any attorney-client privilege or any
other privilege against disclosure of confidential information by reason of
anything contained in or done pursuant to or in connection with this Section 15.
All arbitration
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proceedings hereunder may be reported by a certified shorthand court reporter
and written transcripts of such proceedings made available to a party at its
cost:. Any arbitration proceeding hereunder shall be conducted in the City and
County of San Francisco, California.
16. Entire Agreement; Amendment. This Agreement, together with
the Exhibits hereto, contains all the representations and the entire
understanding between the parties with respect to the subject matter hereof.
Any prior correspondence, memoranda or agreements are replaced in total by this
Agreement and the Exhibits hereto. This Agreement may be amended only by a
written agreement so specifying, executed by both parties.
17. Construction and Interpretation. This Agreement has been
fully negotiated at arms' length between the parties, after advice by counsel
and other representatives chosen independently by each party, and the parties
are fully informed with respect thereto. Therefore, neither party shall be
deemed the scrivener of this Agreement, and the provisions of this Agreement
and Exhibits hereto shall be construed as a whole according to their common
meaning and not strictly for or against either party. The captions preceding
the text of each Section and subsection are included for convenience of
reference only and shall be disregarded in the construction and interpretation
of this Agreement. Use in this Agreement of the words "including", "such as",
or words of similar import, when following any general term, statement or
matter, shall not be construed to limit such
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statement, term or matter to the specific items or matter, whether or not
language of non-limitation such as "without limitation" or "but not limited
to", or words of similar import, are used with reference thereto, but rather
shall refer to all other terms or matters that could reasonably fall within the
broadest possible scope of such statement, term or matter. Unless otherwise
stated, all references to "Sections" and "Exhibits" are references to the
Sections and Exhibits of this Agreement.
18. No Merger. Notwithstanding anything to the contrary contained
in this Agreement, all representations, warranties, indemnities and obligations
contained in this Agreement, intended by their terms to survive the Close of
Escrow hereunder, shall survive the Close of Escrow and shall not merge into
any instrument conveying the Property, or any interest therein, to Pixar.
19. Exhibits. The following Exhibits, to which reference is made
in this Agreement, are deemed incorporated into this Agreement in their
entirety:
Exhibit A - Description of Property
Exhibit B - Conditions of Title
Exhibit C - Assignment
Exhibit D - Environmental Reports
Exhibit E - Exemplar Closure Letters
Exhibit F - Asbestos Reports and Specifications
Exhibit G - Demolition Specifications
Exhibit H - Non-Foreign Status Affidavit
Exhibit I - Confidentiality Agreement
20. Standard of Approval and Performance. Unless otherwise
provided in this Agreement, (i) each party shall act in a reasonable manner in
exercising or undertaking its rights,
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duties and obligations under this Agreement, and (ii) whenever approval,
consent or satisfaction (collectively, an "approval") is required of a party
pursuant to this Agreement, such approval shall not be unreasonably withheld or
delayed. Unless provision is made for a specific time period, approval (or
disapproval) shall be given within thirty (30) days after receipt of the
request for approval. Nothing contained in this Agreement, however, shall
limit the right of a party to exercise its business judgment, or act, in a
subjective manner, with respect to any matter as to which it has specifically
been granted the right to act in its sole discretion or sole judgment, whether
"objectively" reasonable under the circumstances, and any such exercise shall
not be deemed inconsistent with any covenant of good faith and fair dealing
otherwise implied by law to be part of this Agreement. Where the parties have
stated a specific standard or procedure with respect to their rights, duties
and obligations in this Agreement, the parties intend such standard or
procedure to set forth their entire understanding with respect to which those
rights, duties and obligations are to be judged and the performance of those
rights, duties and obligations are to be measured.
21. Governing Law. This Agreement shall be construed and enforced
in accordance with the laws of the State of California.
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IN WITNESS WHEREOF, Del Monte and Pixar have executed this
Agreement as of the day and year first above written.
"DEL MONTE"
DEL MONTE CORPORATION, a New York
corporation
By [SIG] 9-5-96
--------------------------
Its DIR. / PROP. MGMT.
--------------------------
By [SIG]
--------------------------
Its EXEC. VICE PRESIDENT
--------------------------
"PIXAR"
PIXAR ANIMATION STUDIOS,
a California corporation
By [SIG]
--------------------------
Its CEO
--------------------------
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EXHIBIT A
(Description of Property)
REAL PROPERTY in the City of Emeryville, County of Alameda, State of California,
described as follows:
PARCEL ONE:
Commencing at a point on the eastern line of Hollis Street, distant thereon Two
Hundred and Fifty feet northerly from the northern line of Park Avenue; thence
northerly along said eastern line of Hollis Street, Seventy-five feet; thence at
a right angle easterly One Hundred Twenty-five feet; thence at a right angle
southerly Seventy-five feet; thence at a right westerly One Hundred Twenty-five
feet to the point of commencement.
Being a portion of Block Numbered 16, as said block is laid down on that
certain map entitled "Map of Part of Plot 6, Kellersberger's Survey of Vicente
& Domingo Peralta Rancho Property of J.S. Emery, June 1876, T.J. Arnold C.E.
Oakland" - filed March 1, 1889 in the Office of the County Recorder of Alameda
County in Liber 19 of Maps, Page 68.
A.P. No. 049-1031-004
PARCEL TWO:
Beginning at a point on the western line of Haven Street, distant thereon One
Hundred Twenty-five feet northerly from the point of intersection of said
western line of Haven Street with the northern line of Park Avenue, as said
Haven Street and said Park Avenue are laid down, delineated and so designated
upon that certain map entitled, "Map of Part of Plot 6" etc., hereinafter
referred to; and running thence northerly along said westerly line of Haven
Street Two Hundred feet; thence westerly and parallel with said northerly line
of said Park Avenue One Hundred Twenty-five feet; thence southerly and parallel
with said westerly line of said Haven Street, Two Hundred feet; and thence
easterly and parallel with said northerly line of said Park Avenue One Hundred
Twenty-Five feet to the point of beginning.
Being a portion of Block Numbered 16, as said block is laid down, delineated and
so designated upon that certain map entitled, "Map of Part of Plot 6,
Kellersberger's Survey of Vicente & Domingo Peralta Rancho, property of J.S.
Emery" etc. filed March 1, 1889 in the Office of the County Recorder of said
County of Alameda.
52
PARCEL THREE:
Beginning at a point on the easterly line of Hollis Street, distant thereon One
Hundred Twenty-Five feet northerly from the point of intersection of said
eastern line of said Hollis Street with the northern line of Park Avenue, as
said Hollis Street and said Park Avenue are laid down, delineated and so
designated upon that certain Map entitled, "Map of Plot 6" etc. hereinafter
referred to: and running thence northerly along said easterly line of said
Hollis Street Forty feet; thence easterly and parallel with said northern line
of said Park Avenue One Hundred Twenty-five feet, thence southerly and parallel
with said eastern line of said Hollis Street Forty feet; and thence westerly
and parallel with said northerly line of said Park Avenue. One Hundred
Twenty-five feet to the point of beginning.
Being a portion of Block Numbered 16, as said block is laid down, delineated
and so designated upon that certain Map entitled, "Map of Part of Plot 6,
Kellersberger's Survey of Vicente & Domingo Peralta Rancho, property of J.S.
Emery", etc. filed March 1, 1889, in the Office of the County Recorder of the
said County of Alameda.
PARCEL FOUR:
Beginning at a point on the eastern line of Hollis Street, distant thereon Two
Hundred Fifteen feet northerly from the point of intersection of said easterly
line of said Hollis Street with the northerly line of Park Avenue, as said
Hollis Street and said Park Avenue are laid down, delineated and so designated
upon that certain Map entitled, "Map of Part of Plot 6", etc. hereinafter
referred to; and running thence northerly along said eastern line of Hollis
Street Thirty-five feet; thence easterly and parallel with said northerly line
of said Park Avenue One Hundred Twenty-five feet, thence southerly and parallel
with said easterly line of said Hollis Street Thirty-five feet, and thence
westerly and parallel with said northern line of said Park Avenue One Hundred
Twenty-five feet to the point of beginning.
Being a portion of Block Numbered 16 as said block is laid down, delineated and
so designated upon that certain Map entitled, "Map of Part of Plot 6,
Kellersberger's Survey of Vicente & Domingo Peralta Rancho, property of J.S.
Emery" etc., filed March 1, 1889, in the Office of the County Recorder of the
said County of Alameda.
PARCEL FIVE:
Beginning at a point in the easterly line of Hollis Street, distant thereon One
Hundred and Sixty-five feet northerly from the point of intersection of said
easterly line of Hollis Street with the northerly line of Park Avenue as said
Hollis Street and said Park Avenue are delineated and designated upon that
certain Map entitled, "Map of Part of Plot 6" etc., hereinafter referred to;
running thence northerly along the easterly line of said Hollis Street Fifty
feet; thence easterly and parallel with said northerly line of said Park Avenue
One Hundred and Twenty-five feet; thence southerly and parallel with said
easterly line of said Hollis Street fifty feet; and thence westerly and
parallel with said northerly line of said Park Avenue One Hundred and
Twenty-five feet to the point of beginning.
53
Being a portion of Block Numbered 16, as said Block is delineated and so
designated upon that certain Map entitled, "Map of Part of Plot 6,
Kellersberger's Survey of Vicente & Domingo Peralta Rancho, property of J.S.
Emery" etc. filed March 1st, 1889 in the Office of the County Recorder of
Alameda County.
PARCEL SIX:
Beginning at the point of intersection of the northern line of Park Avenue,
with the eastern line of Hollis Street, as said avenue and street are shown on
the Map hereinafter referred to; and running thence northerly along said line
of Hollis Street, One Hundred Twenty-five feet; thence at right angles easterly
One Hundred feet, thence at right angles southerly one Hundred Twenty-five feet
to said line of Park Avenue; and thence westerly along said line of Park Avenue
One Hundred feet to the point of beginning.
Being a portion of block numbered 16, as said block is delineated and so
designated upon that certain map entitled, "Map of Part of Plot 6,
Kellersberger's Survey of Vicente & Domingo Peralta Rancho" - filed March 1,
1889 in Book 19 of Maps, at Page 68, in the Office of the County Recorder of
Alameda County.
PARCEL SEVEN:
All those certain lots, pieces or parcels of land, situate, lying and being in
the Town of Emeryville, County of Alameda, State of California, and bounded and
particularly described as follows to-wit:
Parcel A: Beginning at a point on the northern line of Park Avenue, distant
thereon One Hundred Sixty-seven and 50/100 feet easterly from the point of
intersection thereof, with the eastern line of Hollis Street; and running
thence easterly along said line of Park Avenue Fifty-seven and 50/100 feet;
thence at right angles northerly One Hundred and Twenty-five feet; thence at
right angles westerly Fifty-seven and 5/100 feet; and thence at right angles
southerly One Hundred Twenty-five feet, to the point of beginning.
Being a portion of Block numbered 16, as said block is delineated and so
designated upon that certain Map entitled, "Map of Part of Plot 6,
Kellersberger's Survey of Vicente & Domingo Peralta Rancho property of J.S.
Emery, etc.", filed March 1, 1889 in Book 19 of Maps, at Page 65, in the Office
of the County Recorder of Alameda County.
Parcel B: Beginning at a point on the northern line of Park Avenue, distant
thereon easterly one hundred feet from the intersection thereof with the
eastern line of Hollis Street; running thence easterly along said line of Park
Avenue Sixty-seven feet, six inches; thence at right angles northerly One
Hundred Twenty-five feet; thence at right angles westerly Sixty-seven feet, six
inches; and thence at right angles southerly One Hundred Twenty-five feet to
the point of beginning. Being a portion of Block numbered 16, as the said block
is delineated and so designated upon that certain Map entitled, "Map of part of
Plot 6, Kellersberger's Survey of Vicente & Domingo Peralta Rancho, property
of J.S. Emery, June 1876, T.J. Arnold C.E. Oakland filed March 1, 1889 in the
Office of the County Recorder of Alameda County.
54
PARCEL EIGHT:
Beginning at the intersection of the northern line of Park Avenue with the
western line of Haven Street, as said avenue and street are shown on the Map
hereinafter referred to; running thence westerly along said line of Park Avenue
25 feet, thence northerly parallel with said line of Haven Street 125 feet,
thence easterly parallel with said line of Park Avenue 25 feet, to said western
line of Haven Street, thence southerly along said last named line, 125 feet to
the point of beginning.
Being a portion of Block 16, as said block is shown on the "Map of Part of Plot
6, Kellersberger's Survey of Vicente and Domingo Peralta Rancho, property of
J.S. Emery", filed March 1, 1889, in Book 19 of Maps, at Page 68, in the
Office of the County Recorder of Alameda County.
PARCEL NINE:
That portion of Haven Street lying northwesterly on the northwestern line of
Park Avenue, as said street and avenue are shown on the "Map of Part of Plot 6,
Kellersberger's Survey of Vicente & Domingo Peralta Rancho, property of J.S.
Emery", filed March 1, 1889 in Book 19 of Maps, at Page 68, in the Office of
the County Recorder of Alameda County.
A.P. No. 049-1031-003-01 Affects Parcels 2 thru 9
PARCEL TEN:
Beginning at a concrete monument set at the southeast corner of angle point of
the property of the Mee Estate at Emeryville, Alameda County, California;
running thence along the easterly boundary line of said property of the Mee
Estate north 28 degrees 17' west One Hundred Ninety-eight and 178/1000 feet to
the south line of 45th Street; thence parallel with the south line of the said
property of the Mee Estate south 72 degrees 28' west Four Hundred Thirty-one and
178/1000 feet to the easterly boundary line of the property of the Southern
Pacific Company; thence at a right angle and along said easterly boundary line
of said Southern Pacific Company land and to a point on the southern boundary
line of the property of the Mee Estate south 17 degrees 32' east One Hundred
Ninety-four and 70/100 feet, said point being north 72 degrees 28' east
Twenty-one and 5/10 feet from the point of intersection of the center line of
Haven Street and the south line of the Mee Estate property; thence along said
southern boundary line of the property of the Mee Estate north 72 degrees 28'
East Four Hundred Sixty-eight and 50/100 feet to the point of beginning.
PARCEL ELEVEN:
Beginning at the intersection of the western line of Harlan Street with the
northern line of Park Avenue; running thence westerly along said northern line
of Park Avenue Two Hundred Seventy feet to the eastern line of Haven Street;
thence northerly along said eastern line of Haven Street Four Hundred
Twenty-eight feet; five inches, more or less, to the northern line of Plot
Numbered 6, as said plot is shown on the Map hereinafter referred to; thence
easterly along the last named line Two Hundred Seventy feet, more or less, to
the western line of Harlan Street; thence southerly along the western line of
Harlan Street Four Hundred Forty-two feet, more or less to the point of
beginning.
55
Beginning Block Numbered 23, as said block is delineated and so designated upon
that certain Map entitled, "Map of Part of Plot 6, Kellersberger's Survey of
Vicente & Domingo Peralta Rancho property of J.S. Emery, June 1876, T.J.
Arnold, C.E. Oakland", filed March 1, 1889 in the Office of the County
Recorder of said County of Alameda.
PARCEL TWELVE:
Beginning at a point on the eastern line of Harlan Street, distant thereon
northerly Two Hundred Seventy-five feet from the intersection thereof with the
northern line of Park Avenue; running thence easterly at right angles to said
eastern line of Harlan Street One Hundred Thirty feet; thence at right angles
northerly One Hundred Eighty feet, more or less, to the northern line of Plot
Numbered 6, as said Plot is shown on the Map hereinafter referred to; thence
westerly along said last named line One Hundred Thirty feet, more or less, to
said eastern line of Harlan Street; thence southerly along said eastern line
of Harlan Street One Hundred Seventy feet more or less, to the point of
beginning.
Being a portion of Block Numbered 10, as said block is delineated and so
designated upon that certain Map entitled, "Map of Plot 6, Kellersberger's
Survey of Vicente & Domingo Peralta Rancho, property of J.S. Emery, June 1876,
T.J. Arnold, C.E. Oakland", filed March 1, 1889 in the Office of the County
Recorder of Alameda County.
PARCEL THIRTEEN:
Beginning at a point on the eastern line of Harlan Street, distant thereon
northerly Two Hundred Fifty feet from the intersection thereon with the
northern line of Park Avenue, as said street and avenue are shown on the map
hereinafter referred to; running thence northerly along said line of Harlan
Street, Twenty-five feet; thence at right angles easterly One Hundred Thirty
feet; thence at right angles southerly Twenty-five feet; thence at right angles
westerly One Hundred Thirty feet to the point of beginning.
Being a portion of Block Numbered 10, as said block is delineated and so
designated on that certain Map entitled, "Map of Plot 6, Kellersberger's Survey
of Vicente & Domingo Peralta Rancho, Property of J.S. Emery", filed March 1,
1889 in Liber 19 of Maps, at Page 68 in the Office of the County Recorder of
said County of Alameda County.
PARCEL FOURTEEN:
Beginning at a point on the eastern line of Harlan Street, distant thereon
northerly One Hundred Twenty-five feet from the intersection thereof with the
northern line of Park Avenue, as said street and avenue are shown on the Map
hereinafter referred to; running thence northerly along said line of Harlan
Street One Hundred Twenty-five feet; thence at right angles easterly One
Hundred Thirty feet thence at right angles southerly One Hundred Twenty-five
feet; thence at right angles westerly One Hundred Thirty feet to the point of
beginning.
56
Being a portion of Block Numbered 10, as said block is delineated and so
designated upon that certain Map entitled, "Map of Part of Plot 6,
Kellersberger's Survey of Vincent & Domingo Peralta Rancho Property of J.S.
Emery" filed March 1, 1889 in Liber 19 of Maps, at Page 68 in the Office of the
County Recorder of the said County of Alameda.
PARCEL FIFTEEN:
That portion of Harlan Street which lies northwesterly of the northwestern line
of Park Avenue, extended across said street, as said street and avenue are shown
on the "Map of Part of Plot 6, Kellersberger's Survey of Vincent & Domingo
Peralta Rancho, property of J.S. Emery" filed March 1, 1889 in Book 19 of Maps,
at Page 68, in the Office of the County Recorder of Alameda County.
PARCEL SIXTEEN:
Portion of Block 10, as said block is shown on the "Map of Part of Plot 6,
Kellersberger's Survey of Vicente & Domingo Peralta Rancho, property of J.S.
Emery" - filed March 1, 1889 in Book 19 of Maps at Page 68, in the Office of
the County Recorder of Alameda County, described as follows:
Beginning at the intersection of the northern line of Park Avenue with the
eastern line of Harlan Street, as said avenue and street are shown on said map;
running thence along said line of Harlan Street northerly 125 feet; thence at
right angles easterly 60 feet; thence at right angles southerly 125 feet to said
line of Park Avenue; thence along the last named westerly to feet to the point
of beginning.
A.P. No. 049-1029-001-04 Affects Parcels Ten thru Sixteen and a portion of
Parcel 17.
PARCEL SEVENTEEN:
Lot 3 and a portion of Lot 2 in Block 4, as said lots and block are shown on the
"Map of Portion of the Coggseshell Tract, lying west of San Pablo Avenue", filed
May 14, 1883 in Book 4 of Maps, at Page 13, a portion of Plot 38, as said plot
is shown on the "Map of Ranchos of Vicente & Domingo Peralta", filed January 21,
1857, in Book 17 of Maps, at Page 12 and a portion of Block 10, as said block is
shown on the "Map of Part of Plot 6, Kellersberger's Survey of Vincent & Domingo
Peralta Rancho, property of J.S. Emery" filed March 1, 1869 in Book 19 of Maps,
at Page 68, in the Office of the County Recorder of Alameda County, described as
follows:
57
Beginning at a point on the western line of Watts Street, distant thereon
southerly 65 feet from the southern line of 45th Street, as said streets are
shown on the first mentioned map; and running thence along said line of Watts
Street southerly 579.12 feet to the northern line of Park Avenue, as said
avenue is shown on said "Map of Part of Plot 6"; thence along the last named
line westerly 200 feet to a point distant thereon easterly 60 feet from the
eastern line of Harlan Street, as said street is shown on said "Map of Part of
Plot 6"; thence at right angles northerly 125 feet; thence at right angles
easterly 65 feet; thence at right angles northerly 150 feet; thence at right
angles easterly 5 feet; thence at right angles northerly 176.60 feet to the
northern line of said Block 10; thence along the last named line easterly 5
feet to a line drawn parallel with and distant at right angles 125 feet westerly
from said western line of Watts Street; thence along the line so drawn
northerly 127.27 feet to a line drawn westerly from the point of beginning
parallel with said line of 45th Street; thence along the last drawn line
easterly 125 feet to the point of beginning.
PARCEL EIGHTEEN:
Lot 1 and portion of Lot 2, in Block 4, as said lots and block are shown on the
"Map of a portion of the Coggeshall Tract lying west of San Pablo Avenue,
Oakland Township", filed May 14, 1883, in Book 4 of Maps, at Page 13, in the
Office of the County Recorder of Alameda County, described as follows:
Beginning at the intersection of the southern line of 45th Street with the
western line of Watts Street; said streets are shown on said map; and running
thence along said line of Watts Street southerly 65 feet; thence parallel with
said line of 45th Street westerly 125 feet; thence parallel with said line of
Watts Street northerly 65 feet to said line of 45th Street; and thence along
the last named line easterly 125 feet to the point of beginning.
PARCEL NINETEEN:
Beginning at a point on the southern line of 45th Street, distant thereon south
75 degrees 20' 10" west one hundred and twenty-five feet from the point of
intersection thereof with the western line of Watts Street, as said streets are
delineated and so designated upon that certain map entitled, "Map of a portion
of the Coggeshall Tract lying west of San Pablo Avenue Oakland Township", filed
May 14, 1883 in Book 4 of Maps at Page 13, in the Office of the County Recorder
of Alameda County; running thence south 75 degrees 20' 10" west along the
southern line of 45th Street Fifty-One and 73/100 feet to the western boundary
line of Plot Numbered 38, as said plot is shown on the Map hereinafter referred
to; thence south 28 degrees 12' east along the last named line One Hundred
Ninety-eight and 03/100 feet to the southern boundary line of said Plot Numbered
38; thence north 72 degrees 28' east along the last named line Five and 39/100
feet to a line drawn south 14 degrees 39' 50" east from the point of beginning
thence north 14 degrees 39' 50" west one hundred ninety-two and 27/100 feet to
the point of beginning.
Being a portion of Plot Numbered 38, as said plot is delineated and so
designated upon that certain Map entitled, "Map of the Ranchos of Vicente &
Domingo Peralta", filed January 21, 1857, in Book 17 of Maps at Page 12 in the
Office of the County Recorder of Alameda County.
A.P. No. 49-1029-1-3
58
PARCEL TWENTY:
Beginning at the point of intersection of the easterly line of Watts Street,
with the northerly line of Park Avenue, as said Watts Street and said Park
Avenue are laid down, delineated and so designated upon that certain Map
entitled, "Map of Part of Plot 6, Kellersberger's Survey of Vicente & Domingo
Peralta Rancho Property of J.S. Emery, etc," filed March 1, 1889 in the Office
of the County Recorder of Alameda County; and running thence along said easterly
line of Watts Street north 14 degrees 30' west 465.10 feet to the point of
intersection of said easterly line of Watts Street, with the dividing line
between Plots 6 and 38, as said Plots 6 and 38 are laid down and delineated upon
that certain Map entitled "Map of the Ranchos of Vicente & Domingo Peralta,"
etc., hereinafter mentioned; thence north 75 degrees 30' east 200 feet to a
point distant at right angles westerly 390 feet from the westerly line of San
Pablo Avenue as said San Pablo Avenue is laid down, delineated and so designated
upon that certain Map entitled, "Map of Part of Plot 6" etc. hereinafter
mentioned; thence south 14 degrees 30' east and parallel with said westerly line
of San Pablo Avenue 465.19 feet to said northerly line of said Park Avenue; and
thence along said northerly line of said Park Avenue south 75 degrees 31-1/2'
west 200 feet to the point of beginning.
Being a portions of Plot 6, as said plot is shown on "Map of the Ranchos of
Vicente & Domingo Peralta, containing 16970.68 acres, surveyed by Julius
Kellersberger", etc., filed January 21, 1857 in the Office of the County
Recorder of Alameda County, State of California.
A.P. No. 049-1027-022-01
PARCEL TWENTY-ONE:
Portion of Lots 23 and 24 in Block 5, as said lots and block are shown on the
"Map of a Portion of the Coggeshell Tract lying west of San Pablo Avenue,
Oakland Township", filed May 14, 1883 in Book 4 of Maps, Page 13, in the Office
of the County Recorder of Alameda county, described as follows:
Beginning at the intersection of the southern line of 45th Street, with the
eastern line of Watts Street, as said streets are shown on said map; running
thence along said line of 45th Street easterly 50 feet; thence parallel with
said line of Watts Street southerly 54 feet; thence parallel with said line of
45th Street westerly 50 feet to the eastern line of Watts Street; thence along
the last named line northerly 54 feet to the point of beginning.
59
PARCEL TWENTY-TWO:
Portion of Lot 23 in Block S, as said lot and block are shown on the "Map of a
portion of Coggeshall Tract lying west of San Pablo Avenue, Oakland Township",
filed May 14, 1883, in Book 4 of Maps, Page 13, in the Office of the County
Recorder of Alameda County, described as follows:
Beginning at a point on the eastern line of Watts Street distant thereon
southerly 54 feet from the southern line of 45th Street, as said streets are
shown on said Map; and running thence along said line of Watts Street southerly,
31 feet; thence parallel with said line of 45th Street easterly 50 feet, thence
parallel with said line of Watts Street northerly 31 feet; thence parallel with
said line of 45th Street westerly 50 feet to the point of beginning.
PARCEL TWENTY-THREE:
A portion of Lot 22 in Block S, as said lot and block are shown on the "Map of
a portion of the Coggeshall Tract, lying west of San Pablo Avenue, Oakland
Township, filed May 1, 1883 in Book 4 of Maps, at Page 13, in the Office of
the County Recorder of Alameda County, and also
A portion of Plots 6 and 38, as said Plots are shown on the "Map of the Ranchos
of Vicente & Domingo Peralta", filed January 21, 1857 in Book 17 of Maps, at
Page 12, in the Office of the County Recorder of Alameda County, described as
follows:
Beginning at a point on the eastern line of Watts Street, distant thereon south
14 degree 30' east 85.00 feet from the southern line of 45th Street, as said
streets are shown on the said "Map of a portion of the Coggeshall Tract";
running thence along the said line of Watts Street and along the eastern line
of Watts Street, as said street is shown on the "Map of Part of Plot 6,
Kellersbergers Survey of Vicente & Domingo Peralta Rancho Property of J.S.
Emery", filed March 1, 1889 in Book 19 of Maps, at Page 68, in the Office of
the County Recorder of Alameda County, south 14 degree 30' east 94.00 feet to a
point on the line dividing said Plots 6 and 38; thence north 75 degree 30' east
150.00 feet; thence north 14 degree 30' west 54.00 feet; thence south 75 degree
30' west 50.00 feet to a point on the eastern boundary line of that certain
parcel of land described in Deed from Mario Chembero and Jean Chembero, husband
and wife, to Louis A. Lavenbarg and wife, dated March 30, 1953 and recorded
April 9, 1953 under Recorder's Series No. AH/31359 in Book 6997 of Official
Records of Alameda County, Page 244, and/or of the direct production southerly
of the said eastern boundary line; thence along the said last mentioned line
north 14 degree 30' west 40.00 feet, more or less, to a point on the northern
boundary line of the said Lavenbarg parcel of land; thence westerly along the
said last mentioned line and parallel with the said southern line of 45th
Street, 100.00 feet to the point of beginning.
A.P. No. 049-1027-028
*****
EXHIBIT A
60
FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
THIS FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (the
"Amendment") is made and entered into as of this 1st day of November, 1996, by
and between DEL MONTE CORPORATION, a New York corporation ("Del Monte"), and
PIXAR ANIMATION STUDIOS, a California corporation ("Pixar").
RECITALS:
This Amendment is entered into on the basis of the following facts,
understandings and intentions of the parties:
A. Del Monte and Pixar have previously entered into that certain
Agreement of Purchase and Sale, dated September 6, 1996 (the "Agreement"),
pursuant to the terms and conditions of which Del Monte has agreed to sell to
Pixar, and Pixar has agreed to purchase from Del Monte, the Property therein
identified.
B. Due to the occurrence of certain circumstances, the parties desire
to extend the Review Period for completion by Pixar of its due diligence
investigation of the Property and related time periods with respect to review
and investigation of the state of title of the Real Property.
C. In order to effectuate the foregoing, the parties desire to enter
into this Amendment.
NOW, THEREFORE, IN CONSIDERATION of the foregoing Recitals, and the
mutual covenants and promises of the parties contained in this Amendment, the
parties agree to amend the Agreement as follows:
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61
1. Defined Terms. Unless otherwise specified in this Amendment, all
terms defined in the Agreement shall have the same meaning when used in this
Amendment.
2. Extension of Additional Deposit Date. The phrase reading "ninety
(90)" in clause (ii) of Section 3(a) is amended to read "one-hundred-nineteen
(119)".
3. Extension of Review Period. The first sentence of Section 4(b) of
the Agreement is amended in full to read as follows:
Pixar shall conduct and complete its review of the Property under
Section 4(a) above with due diligence and within one-hundred-nineteen
(119) days after the date of this Agreement (the "Review Period").
Based on the foregoing amendment to Section 4(b), the last day of the Review
Period is January 3, 1997, and Pixar shall give any notice of termination under
Section 4(c) not later than the close of business on January 3, 1997.
4. Extension of Time for Procurement of Survey. The introductory
phrase of Section 5(b) of the Agreement reading, "At any time within forty-five
(45) days after the date of this Agreement,..." is hereby amended in its
entirety to read as follows: "At any time on or before November 1, 1996,..."
5. Interpretation of Amendment. This Amendment and the Agreement shall
be construed as a whole in order to effectuate the intent of the parties to
amend the Agreement in the manner specified in this Amendment. All provisions of
the Agreement affected by this Amendment shall be deemed amended regardless of
whether so specified in this Amendment. Subject to the foregoing, if any
provision of the Agreement conflicts with
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62
any provision of this Amendment, the provision of this Amendment shall control.
6. No Further Amendment. Except as amended by this Amendment, the
Agreement shall continue in full force and effect in accordance with its terms.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day and year first above written.
"DEL MONTE"
DEL MONTE CORPORATION, a New York
corporation
By ______________________________
Its _____________________________
By ______________________________
Its _____________________________
"PIXAR"
PIXAR ANIMATION STUDIOS, a
California corporation
By ______________________________
Its _____________________________
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