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Exhibit 10.21
FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AND ESCROW
INSTRUCTIONS ("First Amendment") is made as of this ___ day of December, 1998,
by and between MARTIN/CROSSMAN, LLC, a California limited liability company
("Seller"), and NETWORK APPLIANCE, INC., a California corporation ("Buyer").
R E C I T A L S:
This Agreement is entered into on the basis of the following facts,
understandings and intentions of the parties:
A. Seller and Buyer entered into a certain Purchase and Sale Agreement
and Escrow Instructions dated July 31, 1998 (the "Agreement") (with an Effective
Date of August 5, 1998) for that certain real property located in the City of
Sunnyvale, County of Santa Clara, State of California, consisting of certain
property commonly known as 1275 Crossman Avenue, as more particularly described
therein
B. Seller and Buyer desire to amend the Agreement upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants of the
parties herein contained and other valuable consideration, the parties agree as
follows:
1. Defined Terms. Except as expressly provided in this First Amendment
to the contrary, terms which are defined in the Agreement shall have the same
meaning when used in this First Amendment.
2. Section 2.2.1. Section 2.2.1 of the Agreement is hereby deleted in
its entirety and the following is inserted in place thereof:
"2.2.1 Deposit. Buyer has previously delivered to Title Company a
cashier's check or wire transfer in the amount of One Million and
00/100 Dollars ($1,000,000.00) (the "Initial Deposit"), as an
earnest money deposit on account of the Purchase Price. Buyer
acknowledges that the conditions precedent set forth in Sections
4.1.1 and 4.1.2 of this Agreement have been waived or satisfied
and in connection therewith: (i) Buyer delivered directly to
Title Company an additional deposit in the amount of Five Hundred
Thousand and 00/100 Dollars ($500,000.00) (the "Additional
Deposit"), and (ii) the Initial Deposit and Additional Deposit
became nonrefundable, except as otherwise provided for in this
Agreement. Buyer hereby notifies Seller that it has waived any
financing contingency. Upon full-execution of this First
Amendment, Buyer shall deliver directly to Title Company a
cashier's check or wire transfer as a third deposit in the amount
of One Million and 00/100 Dollars ($1,000,000.00) ("Third
Deposit").
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As used in this Agreement, the term "Deposit" means the Initial
Deposit and the Third Deposit.
"If the Termination Date (as defined in Section 4.1.3) occurs
prior to the Closing Date, a portion of the Additional Deposit
shall be released to Seller at Closing for payment of (a)
one-half of the Income Loss (as defined in Section 4.1.3) due
Seller by Buyer pursuant to Section 4.1.3 and incurred by Seller
prior to the Closing Date, in the amount of Seventy One Thousand
Four Hundred Twenty Three and 00/100 Dollars ($71,423.00) per
month and (b) one-half of the attorney's fees incurred by Seller
in connection with the Termination Agreement, in the amount of
Three Thousand Seven Hundred Fifty and 00/100 Dollars
($3,750.00). The remaining balance of the Additional Deposit in
the amount of Four Hundred Twenty Four Thousand Eight Hundred
Eighteen and 00/100 Dollars ($424,818.00) shall be returned to
Buyer at Closing. The balance of the Purchase Price due Seller
pursuant to Sections 2.2.2 and 11.3.1 shall be reduced by the
amount of Two Hundred Eighty Five Thousand Six Hundred Ninety Two
and 00/100 Dollars ($285,692.00) (which is the equivalent of four
months of one-half of the monthly Income Loss). Such amount
represents payment by Seller to Buyer of Seller's one-half of the
Income Loss to be incurred by Buyer after the Closing Date
through August 31, 1999.
"If the Termination Date occurs after the Closing Date, a portion
of the Additional Deposit shall be released to Seller at Closing
for payment of one-half of all reasonable attorney's fees
incurred by Seller in connection with the Termination Agreement,
in the amount of Three Thousand Seven Hundred Fifty and 00/100
Dollars ($3,750.00). The remaining balance of the Additional
Deposit in the amount of Four Hundred Ninety Six Thousand Two
Hundred Fifty and 00/100 Dollars ($496,250.00) shall be returned
to Buyer at Closing. From the sale proceeds due Seller, Two
Hundred Eighty Five Thousand Six Hundred Ninety Two and 00/100
Dollars ($285,692.00) (which is the equivalent of four months of
one-half of the monthly Income Loss) shall remain in escrow as a
hold back of the proceeds of the sale for payment by Seller of
its one-half of the Income Loss incurred by Buyer for the period
from the Termination Date through August 31, 1999. On the
Termination Date, the Title Company shall release (i) to Buyer,
the amount equal to Seventy One Thousand Four Hundred Twenty
Three and 00/100 Dollars ($71,423.00) per month for the period
from the Termination Date through August 31, 1999 and (ii) to
Seller, the remaining balance of the sale proceeds which have
been held back."
"As security for the release of the Initial Deposit, the
Additional Deposit and the Third Deposit in accordance with the
Agreement, Buyer shall deposit with Seller, upon full-execution
of the First Amendment, an irrevocable standby letter of credit
("L-C") in the amount of Two Million Five Hundred Thousand and
00/100 Dollars ($2,500,000.00). The L-C shall be issued by a bank
reasonably acceptable to Seller, shall be issued for a term of at
least seven (7) months and shall be in a form and with such
content reasonably acceptable to Seller. The L-C
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shall not be mortgaged, assigned or encumbered in any manner
whatsoever by Buyer without the prior written consent of Seller.
The retention or application of the L-C, or any portion thereof,
by Seller shall not prevent Seller from exercising any other
right or remedy provided by this Agreement. The L-C shall be
payable at sight upon presentation of a signed statement by a
president or vice president of the managing member of Seller
certifying that the Seller is not in default under the Agreement,
that the Buyer is in default under the Agreement, and that the
Initial Deposit, Additional Deposit and/or the Third Deposit have
not been released to Seller by the Title Company pursuant to the
terms of the Agreement. Upon release of the Initial Deposit, the
Additional Deposit and the Third Deposit (either (i) in the case
of the Initial Deposit and the Third Deposit as a credit against
the Purchase Price on the Closing Date and in the case of the
Additional Deposit as payment of Buyer's portion of Income Loss
if the transaction contemplated by this Agreement is consummated,
or (ii) as payment of liquidated damages to Seller if Buyer
defaults hereunder or as a refund to Buyer if Seller defaults
hereunder), Seller shall return the L-C to Buyer. Prior to
presentment of the L-C, Seller shall provide written notice to
Buyer that the Initial Deposit, the Additional Deposit and/or the
Third Deposit were not released to Seller by the Title Company
pursuant to the terms of this Agreement. In the event Seller
draws on the L-C, Seller shall deliver to Title Company a release
of any interest in the Initial Deposit and the Third Deposit. Any
draw on the L-C shall be deemed for all other purposes under this
Agreement to be the Deposit."
3. Section 3.2. Section 3.2 of the Agreement is hereby deleted in its
entirety and the following is inserted in place thereof to provide that both the
Initial Deposit and the Third Deposit shall be treated as liquidated damages in
the event of a default by Buyer:
"BUYER ACKNOWLEDGES THAT THE CLOSING OF THE SALE OF THE PROPERTY
TO BUYER, ON THE TERMS AND CONDITIONS AND WITHIN THE TIME PERIOD
SET FORTH IN THIS AGREEMENT, IS MATERIAL TO SELLER. BUYER ALSO
ACKNOWLEDGES THAT SUBSTANTIAL DAMAGES WILL BE SUFFERED BY SELLER
IF SUCH TRANSACTION IS NOT SO CONSUMMATED DUE TO BUYER'S DEFAULT
UNDER THIS AGREEMENT. BUYER FURTHER ACKNOWLEDGES THAT, AS OF THE
DATE OF THIS AGREEMENT, SELLER'S DAMAGES WOULD BE EXTREMELY
DIFFICULT OR IMPOSSIBLE TO COMPUTE IN LIGHT OF THE UNPREDICTABLE
STATE OF THE ECONOMY AND OF GOVERNMENTAL REGULATIONS, THE
FLUCTUATING MARKET FOR REAL ESTATE AND REAL ESTATE LOANS OF ALL
TYPES, AND OTHER FACTORS WHICH DIRECTLY AFFECT THE VALUE AND
MARKETABILITY OF THE PROPERTY. IN LIGHT OF THE FOREGOING AND ALL
OF THE OTHER FACTS AND CIRCUMSTANCES SURROUNDING THIS
TRANSACTION, AND FOLLOWING NEGOTIATIONS BETWEEN THE PARTIES,
BUYER AND SELLER AGREE THAT THE AMOUNT OF THE INITIAL DEPOSIT AND
THIRD DEPOSIT REPRESENTS A REASONABLE ESTIMATE OF THE
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DAMAGES WHICH SELLER WOULD SUFFER BY REASON OF BUYER'S DEFAULT
HEREUNDER. ACCORDINGLY, BUYER AND SELLER HEREBY AGREE THAT, IN
THE EVENT OF SUCH DEFAULT BY BUYER UNDER THIS AGREEMENT, SELLER
MAY TERMINATE THIS AGREEMENT BY GIVING NOTICE TO BUYER AND TITLE
COMPANY. IN THE EVENT OF SUCH TERMINATION, SELLER SHALL RETAIN
THE INITIAL DEPOSIT AND THIRD DEPOSIT AS LIQUIDATED DAMAGES IN
LIEU OF ANY OTHER CLAIM SELLER MAY HAVE AT LAW OR IN EQUITY
(INCLUDING, WITHOUT LIMITATION, SPECIFIC PERFORMANCE) ARISING BY
REASON OF BUYER'S DEFAULT. THE PARTIES HAVE INITIALED THIS
SECTION 3.2 TO ESTABLISH THEIR INTENT SO TO LIQUIDATE DAMAGES.
NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED IN THIS SECTION
3.2 SHALL BE DEEMED TO LIMIT: (i) BUYER'S OBLIGATION TO PERFORM
THE "CONTINUING OBLIGATIONS" DEFINED IN SECTION 4.5 BELOW; OR
(ii) BUYER'S INDEMNIFICATION OBLIGATIONS CONTAINED IN THIS
AGREEMENT, INCLUDING THOSE CONTAINED IN SUBSECTION 4.3.3, SECTION
9.3 and ARTICLE 12.
Seller's Buyer's
Initials: _________________ Initials: ___________________"
4. Section 4.1.3. Section 4.1.3 of the Agreement is hereby deleted and
the following is inserted in place thereof:
"4.1.3 Termination of Existing Lease. Seller has negotiated an
agreement between Seller and the current tenant of the Property,
TRW, Inc., an Ohio corporation ("TRW"), providing for the
termination of the lease between Seller and TRW (the "TRW Lease")
to be effective as of a date not earlier than April 1, 1999 and
not later than August 31, 1999 (the "Termination Date") in the
form attached hereto as Exhibit F (the "Termination Agreement").
Notwithstanding anything to the contrary in this Agreement, in no
event shall Buyer be obligated to release TRW, or indemnify or
otherwise incur expenses or liabilities to TRW (other than the
Termination Costs as defined in Section 2.2.1) in connection with
the termination of the TRW Lease. In the event the Termination
Date occurs before the August 31, 1999, Seller and Buyer shall
share equally the loss of basic rent, additional rent, taxes,
utility costs and other operating expenses relating to the
Property that would have been payable by TRW to Seller under the
TRW Lease through and including the Closing Date if the TRW Lease
had not been terminated (collectively, "Income Loss"); provided,
however, that the portion of such Income Loss to be borne by
Buyer shall in no event exceed Five Hundred Thousand and 00/100
Dollars ($500,000.00). The Seller and Buyer agree that the total
monthly Income Loss is equal to One Hundred Forty Two Thousand
Eight Hundred Forty Six and 00/100 Dollars ($142,846.00)."
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5. Section 11.1. Section 11.1 is hereby deleted in its entirety and the
following is inserted in place thereof:
"11.1 Closing. The transaction contemplated by this Agreement
shall be consummated through escrow at the office of Title
Company on May 3, 1999 (the "Closing Date"). For purposes of this
Agreement, the term "Closing" shall mean the consummation of the
sale and conveyance of the Property to Buyer as evidenced by
recordation of the Deed."
6. Interpretation of Amendment. This First 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 First Amendment. All
provisions of the Agreement affected by this First Amendment shall be deemed
amended regardless of whether so specified in this First Amendment. Subject to
the foregoing, if any provision of the Agreement conflicts with any provision of
this First Amendment, the provision of this First Amendment shall control.
7. No Further Amendment. Except as amended by this First Amendment, the
Agreement shall continue in full force and effect and in accordance with its
terms.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
dates set forth below.
SELLER: MARTIN/CROSSMAN, LLC,
a California limited liability company
By: THE MARTIN GROUP OF COMPANIES, INC.,
a California corporation
Its: Managing Member
By: ______________________________
Its: _____________________________
Date: ____________________________
By: ______________________________
Its: _____________________________
Date: ____________________________
BUYER: NETWORK APPLIANCE, INC.,
a California corporation
By: ______________________________
Its: _____________________________
Date: ____________________________
By: ______________________________
Its: _____________________________
Date: ____________________________
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EXHIBIT F
TERMINATION OF LEASE AGREEMENT
THIS TERMINATION OF LEASE AGREEMENT ("Agreement") is made and entered
into this _____ day of December, 1998, by and between MARTIN/CROSSMAN, LLC, a
California limited liability company ("Landlord"), and TRW, INC., an Ohio
corporation ("Tenant").
R E C I T A L S:
This Agreement is entered into on the basis of the following facts,
understandings and intentions of the parties:
A. Landlord's predecessor in interest and Tenant's predecessor in
interest entered into that certain Indenture of Lease dated as of June 12, 1975,
as amended by (i) the Extension of Lease dated June 16, 1980; (ii) the Extension
of Lease dated March 20, 1985; (iii) the Lease Amendment dated August 1, 1989;
and (iv) the Lease Amendment dated September 1, 1991, for certain premises
located at 1275 Crossman Avenue, Sunnyvale, California (the "Premises"), as more
particularly described therein.
B. Landlord and Tenant entered into that certain Third Amendment to
Lease dated July 6, 1998 (the Indenture of Lease, as amended, is hereinafter
referred to as the "Lease").
C. Landlord and Tenant desire to terminate the Lease upon the date
Tenant vacates and surrenders the Premises and to release each other from their
respective obligations under the Lease with respect to the Premises arising
after such date, upon the terms and conditions provided herein.
NOW, THEREFORE, in good consideration of the mutual covenants set forth
below and other good and valuable consideration, the parties agree as follows:
1. Termination of the Lease. The Lease is hereby terminated and canceled
on and as of the Effective Date. The "Effective Date" shall be the date on which
Tenant vacates and surrenders the Premises pursuant to the terms hereof, which
date shall be no earlier than April 1, 1999 and no later than August 31, 1999.
Tenant shall provide written notice to Landlord of the Effective Date on or
before February 26, 1999. If Tenant fails to deliver such notice on February 26,
1999, Tenant may thereafter provide notice of the Effective Date at least thirty
(30) days on or before such Effective Date. Tenant's failure to give any notice
with respect to the Effective Date shall be conclusively deemed to mean that the
Effective Date shall be August 31, 1999. The rights of Tenant to occupy the
Premises, and the rights of Tenant under the Lease, shall automatically and
without further action on the part of Landlord terminate at 11:59 p.m. on the
Effective Date. Not later than 5:00 p.m. on the Effective Date, Tenant shall
surrender possession of the Premises, and shall deliver exclusive possession and
occupancy thereof and all keys thereto, to Landlord. The Premises shall be
surrendered in the condition required under the Lease. Tenant shall remove the
personal property to which it is entitled pursuant to the
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provisions of the Lease before the Effective Date. Upon surrender of the
Premises, as provided in this Agreement, all rent and other amounts payable by
Tenant under the Lease, including, without limitation, rent and Tenant's share
of taxes, utility costs and other operating expenses, shall be prorated through
the Effective Date and paid by Tenant.
2. Termination Documents from Tenant. During regular business hours, but
no later than 5:00 p.m. on the Effective Date, Landlord and Tenant shall conduct
an inspection of the Premises. If the condition of the Premises is reasonably
satisfactory to Landlord, Tenant shall deliver to Landlord, duly executed and
acknowledged and in recordable form, (i) an Acknowledgment of Termination and
Surrender of all of the right, title and interest of Tenant in and to the Lease
and the Premises in the form attached to this Agreement as Exhibit A; and (ii) a
Quitclaim Deed and Warranty to Landlord of all of the right, title and interest
of Tenant in and to the Premises and the personal property remaining on the
Premises, in the form attached to this Agreement as Exhibit B.
3. No Other Payment. No payment shall be made by or due from Landlord in
connection with any of the matters which are the subject of this Agreement,
other than reimbursement by Landlord of any rent or operating expenses paid by
Tenant and applicable to any period after the Effective Date.
4. Tenant's Obligations. Tenant shall pay all rents and additional rent
and all other amounts of every kind and nature whatsoever payable by Tenant
under the Lease and shall comply with all of Tenant's other obligations under
the Lease through the Effective Date. In addition, if Tenant has not fully
complied with the terms of this Agreement and the Lease on the Effective Date,
then Landlord shall have the right, in its sole discretion, either to: (i)
terminate the Lease as of the Effective Date and thereafter pursue all of
Landlord's rights and remedies against Tenant arising out of Tenant's default
under the Lease and this Agreement, or (ii) terminate this Agreement as of the
Effective Date, but not the Lease, and thereafter pursue all of Landlord's
rights and remedies against Tenant arising out of Tenant's default under the
Lease and this Agreement.
5. Default. A default by Tenant under this Agreement shall constitute a
default under the Lease.
6. Remedies. Tenant acknowledges and agrees that Landlord has entered
into an agreement to redevelop the property within which the Premises are
located. In connection with the redevelopment, it is necessary for Landlord to
obtain possession of the Premises no later than the Effective Date. If Landlord
is not able to obtain exclusive possession of the Premises on or before the
Effective Date, then Landlord shall incur substantial damages, costs and losses.
Tenant understands and agrees that Tenant's failure to deliver possession of the
Premises as provided in this Agreement and to perform its other obligations
under this Agreement may cause Landlord to be unable to fulfill its obligations
with respect to the redevelopment, which failure would cause material damage to
Landlord. Tenant also understands and agrees that Landlord is relying on
Tenant's performance of the terms and conditions of the Lease and this Agreement
and that Tenant's failure to strictly perform in accordance with the terms and
conditions of the Lease and this Agreement may cause Landlord to be unable to
fulfill its obligations with respect
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to the redevelopment. In accordance with the foregoing understandings, as of the
Effective Date, Landlord shall have the right to prosecute any proceeding at law
or equity, in the event of any default or breach of the obligations of Tenant
contained in this Agreement. If Tenant does not vacate the Premises, terminate
the Lease or perform Tenant's obligations under the other terms of this
Agreement on the Effective Date, then in addition to all other rights and
remedies of Landlord under applicable law or in equity, Landlord shall be
entitled to receive from Tenant all direct and consequential damages resulting
from or arising out of Tenant's failure to vacate the Premises, terminate the
Lease or perform Tenant's obligations under the terms of this Agreement,
including, without limitation, loss of income, damages owed to a prospective
tenant, loss of prospective tenants or financing arrangements for the Premises,
costs or other damages from any expiration or termination of a construction
contract, lease or financing commitment related to Tenant's failure to terminate
the Lease, surrender the Premises or perform Tenant's obligations under the
terms of this Agreement. All rights, privileges and elections of remedies set
forth in this Paragraph 6 are cumulative and not alternative to the extent
permitted by law or equity.
7. Holding Over. If Tenant remains in possession of the Premises after
the Effective Date, with Landlord's consent, such possession by Tenant shall be
deemed to be a month-to-month tenancy terminable on thirty (30) days' notice
given at any time by either party. Tenant acknowledges that Landlord's cost of
owning and carrying the Premises is substantially in excess of the rent payable
by Tenant under this Lease. Accordingly, during such month-to-month tenancy the
total rent payable pursuant to the terms of the Lease for the Premises shall be
One Hundred Ninety Five Thousand Seventy Five and 00/100 Dollars ($195,075.00)
per month. Tenant shall pay such monthly rental and all other sums required to
be paid under the Lease monthly on or before the first day of each month. All
other provisions of the Lease, except those pertaining to the term, shall apply
to the month-to-month tenancy.
8. Amendment to Lease. This Agreement is and shall constitute an
amendment to the Lease and shall be effective as of the date of this Agreement.
Except as modified hereby, all of the terms and conditions of the Lease shall
remain in full force and effect.
9. Representations and Warranties of Tenant. As a material inducement to
Landlord to enter into this Agreement, Tenant represents and warrants to
Landlord that, as of the date of this Agreement:
9.1. No Defaults. The Lease is in full force and effect. There
are no defaults by Landlord or Tenant under the Lease, and no circumstance has
occurred which, but for the expiration of an applicable grace period, would
constitute an event of default by Landlord or Tenant under the Lease. Tenant has
no defenses or rights of offset under the Lease.
9.2. Authority. Tenant has full right, power and authority to
enter into this Agreement, and has obtained all necessary consents and
resolutions from its members required under the documents governing its affairs
in order to consummate this transaction, and the persons executing this
Agreement have been duly authorized to do so. The Agreement and the Lease are
binding obligations of Tenant, enforceable in accordance with their terms.
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9.3. No Assignments. Tenant is the sole lawful tenant under the
Lease, and Tenant has not sublet, assigned, conveyed, encumbered or otherwise
transferred any of the right, title or interest of Tenant under the Lease or
arising from its use or occupancy of the Premises, and no other person,
partnership, corporation or other entity has any right, title or interest in the
Lease or the Premises, or the right to occupy or use all or any part of the
Premises.
10. Release. Tenant hereby generally releases and discharges Landlord
and all of its officers, directors, shareholders, agents, representatives,
employees and attorneys, both present and past, of and from any and all claims,
debts, liabilities, obligations, and causes of action of any kind or nature,
whether known or unknown, based on, arising out of, or connected with, either
directly or indirectly, any term, provision, matter, fact, event or occurrence
related to or contained in the Lease, or to any landlord/tenant relationship
between Tenant and Landlord. This general release shall be governed by the laws
of the State of California. It is understood by the undersigned Tenant that the
facts with respect to which this general release is given may hereafter turn out
to be other than or different from the facts in that connection now known to it
or believed by it to be true, and Tenant therefore expressly assumes the risk of
the facts turning out to be so different and agrees that the foregoing general
release shall be in all respects effective and not subject to termination or
rescission by any such difference in facts. This general release shall bind all
persons or business entities claiming any rights under or through Tenant whether
as stockholders or otherwise.
Tenant specifically waives the protections of California Civil Code
Section 1542, which reads as follows:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor.
Tenant specifically acknowledges Tenant's understanding and waiver, after
consultation with counsel, of the foregoing provision of California Civil Code
Section 1542 and assumes the risk of the existence of any unknown or unsuspected
claims.
11. Indemnity. Tenant covenants with Landlord that Landlord shall not be
liable for, and Tenant shall defend, indemnify and protect Landlord from any
claim, demand, judgment, award, fine, mechanics' lien or other lien, loss,
damage, expense, charge or cost of any kind or character (including actual
attorney fees and court costs) arising prior to the Effective Date directly or
indirectly from (i) any labor dispute involving Tenant or its contractors and
agents, or (ii) the construction, repair, alteration, use, occupancy or
enjoyment of the premises (collectively, "Claims"), including without
limitation, Claims caused by the concurrent negligent act or omission whether
active or passive of Landlord or its agents; provided, however, Tenant shall
have no obligation to defend or indemnify Landlord for damage or injury
occasioned by the sole negligence, willful or criminal act of Landlord or its
agents.
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12. Condition Precedent. The effectiveness of this Agreement is
expressly conditioned on Landlord's obtaining the consent of the mortgagee or
beneficiary of any mortgage or deed of trust encumbering the Premises as of the
Effective Date.
13. Attorneys' Fees. If either party should bring an action to enforce
the terms of this Agreement or declare rights under this Agreement, the
prevailing party in such action shall be entitled to reasonable attorneys' fees,
costs and expenses to be paid by the losing party in such action.
14. Construction. Counsel for all parties have read and approved the
language of this Agreement. The provisions of this Agreement shall be construed
as a whole according to their common meaning and not strictly for or against
Tenant or Landlord.
15. Miscellaneous. This Agreement shall inure to the benefit of, and
shall be binding upon, the parties hereto and their respective successors and
permitted assigns. This Agreement may not be amended, changed or waived except
by a writing signed by the parties hereto, and shall be construed and enforced
in accordance with the laws of the State of California. This Agreement
supersedes any prior oral agreements between the parties with respect to the
subject matter hereof, and the parties acknowledge that there are no oral
agreements between them with regard to such subject matter. This Agreement may
be executed in multiple counterparts, each of which shall be deemed a duplicate
original, but all of which taken together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement on the
date first written above.
LANDLORD: MARTIN/CROSSMAN, LLC,
a California limited liability company
By: THE MARTIN GROUP OF COMPANIES, INC.
a California corporation
Its: Managing Member
By:
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Name:
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Title:
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TENANT: TRW, INC.,
an Ohio corporation
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By:
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Name:
------------------------------------------
Title:
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By:
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Name:
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Title:
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EXHIBIT A
ACKNOWLEDGMENT OF TERMINATION AND SURRENDER
The undersigned hereby acknowledges:
1. The Lease dated as of June 12, 1975, as amended by (i) the
Extension of Lease dated June 16, 1980; (ii) the Extension of Lease dated March
20, 1985; (iii) the Lease Amendment dated August 1, 1989; (iv) the Lease
Amendment dated September 1, 1991; (v) Third Amendment to Lease dated July 6,
1998 for certain premises located at 1275 Crossman Avenue, Sunnyvale, California
(the "Premises"), is terminated as of the date set forth below and is of no
further force or effect with respect to the Premises.
2. The Premises have been surrendered as of the date set forth
below and exclusive occupancy thereof is hereunder being delivered to
Martin/Crossman, LLC.
3. This Acknowledgment of Termination and Surrender is dated
__________ ___, 1999.
TRW, INC.,
an Ohio corporation
By: ________________________________
Its: ________________________
By: ________________________________
Its: ________________________
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EXHIBIT B
Recorded at the Request of:
Martin/Crossman, LLC
and When Recorded, Return to:
Mandel Buder & Verges
101 Vallejo Street
San Francisco, CA 94111
Attention: Scott c. Verges, Esq.
QUITCLAIM DEED AND WARRANTY
For One Dollar ($1.00) and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, TRW, INC., an Ohio corporation
("Grantor") hereby quitclaims, demises and releases to MARTIN/CROSSMAN, LLC, a
California limited liability company ("Grantee"), all of Grantor's right, title
and interest in and to or any right, title and interest claimed by, under or
through Grantor to that certain improved real property or any premises therein
and any personal property located thereon commonly known as 1275 Crossman
Avenue, Sunnyvale, California, more particularly described in Exhibit A attached
hereto and incorporated herein by this reference ("Property").
Grantor represents and warrants to Grantee, its successors and assigns,
that Grantor is the lawful owner of, and has not sublet, assigned or otherwise
transferred, the interest of Grantor under the lease dated June 12, 1975, as
modified and amended, with respect to the Property, that the interest is free of
all encumbrances, that Grantor has not made, done, committed or suffered any act
or thing whereby the interest, or any part thereof, now or at any time hereafter
shall or may be charged or encumbered in any manner, and that Grantor warrants
and will defend title and hold Grantee harmless against the claims and demands
of all persons in relation to the foregoing.
IN WITNESS WHEREOF, Grantor has executed this Quitclaim Deed and
Warranty this _____ day of ____________, 1999.
"Grantor"
TRW, INC.,
an Ohio corporation
By: ________________________________
Its: ________________________
By: ________________________________
Its: ________________________
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STATE OF CALIFORNIA )
)
COUNTY OF _________________ )
On this ______ day of _________________, 1998, before me,
_______________, the undersigned Notary Public, personally appeared
_________________________, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that she/he/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS MY hand and official seal.
--------------------------------
Notary Public
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