PURCHASE AND SALE AGREEMENT
By and Between
181 Investors
-Seller-
and
TENFOLD CORPORATION,
a Delaware corporation
-Buyer-
February 14, 2000
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of February
14, 2000, by and between 181 INVESTORS, a California general partnership
("Seller"), and TEN FOLD CORPORATION, a Delaware corporation (the "Buyer").
RECITALS
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A. Seller owns all of that certain real property located in San Rafael,
Marin County, California, commonly known as at 171 and 181 Carlos Drive, as more
particularly described on Exhibit A attached hereto (the "Real Property").
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B. Seller desires to sell to Buyer, and Buyer desires to purchase from
Seller, said Real Property and all rights and interests appurtenant thereto, all
on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the respective agreements hereinafter
set forth, Seller and Buyer agree as follows:
1. PROPERTY INCLUDED IN SALE Seller hereby agrees to sell and convey to
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Buyer, and Buyer hereby agrees to purchase from Seller, the following:
1.1. Real Property All of the land comprising the Real Property, as
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described on Exhibit A attached hereto.
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1.2. Appurtenances All rights, privileges and easements appurtenant
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to the Real Property to the extent owned by Seller, including, without
limitation, all minerals, oil, gas and other hydrocarbon substances on the Real
Property, as well as all air rights, solar rights, water, water rights and water
stock relating to the Real Property, and all easements, rights-of-way or other
appurtenances used or intended to be used in connection with the beneficial use
and enjoyment of the Real Property (the "Appurtenances").
1.3. Improvements All improvements and fixtures located on the Real
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Property (the "Improvements"). The parties acknowledge that the improvements
include, without limitation, two (2) - two (2) story wood-frame office buildings
containing approximately 13,714 rentable square feet in the aggregate. This
recital is not a representation of square footage and the purchase price is not
predicated upon the amount of square footage.
1.4. Permits, Development Approvals and Fees All permits and
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development rights, agreements, entitlements and approvals relating to the Real
Property.
1.5. Personal Property All personal property used in connection with
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or located on the Real Property, including, but not limited to, the items
specifically listed in Exhibit B attached hereto.
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All of the items described in Sections 1.1 through 1.5 above are
hereinafter collectively called the "Property."
2. PURCHASE PRICE
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2.1 The purchase price for the Property shall be $3,100,000.00
("Purchase Price").
2.2 Buyer agrees to deposit One Hundred Thousand Dollars
($100,000.00) in cash with the Title Company within three (3) business days
following Seller's execution of this Agreement. Funds deposited with the Title
Company pursuant to this Section 2.2, together with all earnings from the
investment of those funds while they are held by the Title Company, are referred
to in this Agreement as the "Deposit." All sums comprising the Deposit shall be
held in an interest-bearing account and interest accruing thereon shall be held
for the account of Buyer. In the event the sale of the Property as contemplated
hereunder is consummated, the Deposit (plus interest accrued thereon) shall be
credited against the Purchase Price. In the event the sale of the Property is
not consummated because of the failure of any condition or any other reason
except a default under this Agreement solely on the part of Buyer, the Deposit
(plus interest accrued thereon) shall immediately be returned to Buyer. If said
sale is not consummated because of a default under this Agreement solely on the
part of Buyer, the Deposit, but not the interest accrued thereon, shall be paid
to and retained by Seller as liquidated damages. THE PARTIES HAVE AGREED THAT
SELLER'S ACTUAL DAMAGES, IN THE EVENT OF A DEFAULT BY BUYER, WOULD BE EXTREMELY
DIFFICULT OR IMPRACTICABLE TO DETERMINE. THEREFORE, BY PLACING THEIR INITIALS
BELOW, THE PARTIES ACKNOWLEDGE THAT THE DEPOSIT HAS BEEN AGREED UPON, AFTER
NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF SELLER'S DAMAGES AND AS
SELLER'S EXCLUSIVE REMEDY AGAINST BUYER, AT LAW OR IN EQUITY, IN THE EVENT OF A
DEFAULT UNDER THIS AGREEMENT SOLELY ON THE PART OF BUYER.
/s/ RPH /s/ PFW /s/ AC /s/ ARN /s/ IM
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Buyer's Initials Seller's Initials
3. TITLE TO THE PROPERTY On the Closing Date (as hereinafter defined),
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Seller shall convey to Buyer marketable and insurable fee simple title to the
Real Property, Appurtenances and Improvements by duly executed and acknowledged
grant deed in the form attached hereto as Exhibit B (the "Deed"), free and clear
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of any known exceptions save and except those to which Buyer has not objected
pursuant to this Agreement. Evidence of delivery of marketable and insurable
fee simple title shall be the issuance by Title Company of an ALTA Owner's
Policy of Title Insurance (the "Title Policy") in the amount of the Purchase
Price, insuring fee simple title to the Real Property and Appurtenances in the
Buyer.
3.1. Buyer, during the Review Period but in no event later than ten
(10) business days following delivery of the preliminary title report covering
the Property and meeting the requirements of Section 6.1(a) below, shall give
written notice to Seller of any exception to title to which Buyer objects.
3.2. If Seller is unable to (or unwilling, based upon the cost of
removing an exception being disproportionate in relation to the Purchase Price)
remove the objectionable exception(s), Seller shall give notice to Buyer,
specifying the exception and the reason for Seller's inability or unwillingness
to remove same, within five (5) business days following
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Buyer's notice given pursuant to Section 3.1 above, and Buyer may, within seven
(7) business days of such notice, Buyer may either to waive its objection to the
exception(s), or terminate this Agreement, in which event all deposits shall be
refunded to Buyer. Buyer's election to waive its objection to the exception or
terminate shall be delivered in writing to Seller no more than seven (7)
business days from delivery of Seller's notice.
3.3. In the event of an exception to title to which Buyer has objected
and which Seller is willing to remove, but is unable to remove prior to close of
escrow, or any extension thereof to which both parties have agreed, Buyer may
withdraw the exception, or terminate this Agreement, in which event all deposits
shall be refunded to Buyer. Buyer agrees to extend closing of escrow, once, for
a period of no less than and no more than 20 calendar days, in the event such
additional time may, in Seller's reasonable opinion, enable Seller to remove the
excepted exception.
4. CONDITIONS TO CLOSING
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The following conditions are conditions precedent to Buyer's obligation to
purchase the Property:
4.1. Approval of Property Buyer shall have approved the Property
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pursuant to Article 6 below.
4.2. Financing Buyer's procurement, on or before the expiration of
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the Review Period, of a loan commitment to finance a portion of Buyer's purchase
of the Property at terms acceptable to Buyer in its sole and absolute
discretion.
4.3. Title Policy Title Company shall issue the Title Policy to Buyer
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at the closing of the purchase and sale of the Property (the "Closing").
4.4. Estoppel Certificates Seller delivers fully executed estoppel
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certificates in form and substance reasonably satisfactory to Buyer on or from
each tenant under the Leases (defined below) on or before the Closing Date
(defined below)
4.5. Representations and Warranties All of Seller's representations
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and warranties contained in or made pursuant to this Agreement shall have been
true and correct when made and shall be true and correct as of the Closing Date,
as defined below.
4.6. Board Approval Buyer's Board of Directors shall, on or before
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the expiration of the Review Period, have authorized the purchase of the
Property by Buyer.
The foregoing conditions in this Section 4 are intended solely for the
benefit of Buyer. If any of the foregoing conditions are not satisfied, Buyer
shall have the right at its sole election either to waive in writing the
condition in question and proceed with the purchase or, in the alternative,
terminate this Agreement.
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5. THE CLOSING
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5.1. Closing Date The Closing hereunder shall be consummated through
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an escrow ("Escrow") to be opened with Title Company. All of the documents
required for the Closing and the funds required for the payment of the Purchase
Price shall be delivered into the Escrow on or before the date that is thirty
(30) days following Buyer's approval of the Property pursuant to Article 6 below
(provided, that if such thirtieth (30/th/) day is a weekend or holiday then such
documents and/or sums shall be due on the next succeeding business day), or such
other date prior thereto as Buyer and Seller may mutually agree in writing (the
"Closing Date"). Such date may not be extended without the approval of both
Seller and Buyer, except as otherwise expressly provided in this Agreement. The
Closing shall commence on the Closing Date and shall be completed on the Closing
Date or the business day following the Closing Date upon recordation by the
Title Company of the Deed and disbursement by the Title Company of the Purchase
Price to Seller. Buyer and Seller shall each submit to the Title Company, not
less than two (2) business days prior to the Closing Date, escrow instructions
consistent with the provisions of this Agreement.
5.2. Seller's Documents At the Closing, Seller shall deliver to Buyer
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through escrow the following:
(a) a duly executed and acknowledged Deed;
(b) a duly executed counterpart of an Assignment of Permits and
Other Intangible Property in the form of Exhibit D attached hereto;
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(c) a duly executed Bill of Sale in the form of Exhibit E
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attached hereto;
(d) a duly executed Affidavit of Non-foreign Status in the form
of Exhibit F attached hereto;
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(e) estoppel certificates, duly executed by the tenant under each
of the Leases, in the form of Exhibit G hereunder; and
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(f) a duly executed Assignment of Leases in the form of Exhibit H
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attached hereto.
(g) any other documents, instruments or agreements called for
hereunder which have not previously been delivered.
Buyer may waive compliance on Seller's part under any of the foregoing
items by an instrument in writing.
5.3. Buyer's Documents and Funds At the Closing, Buyer shall deliver
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to Seller through escrow the following:
(a) the Purchase Price, subject to the prorations and credits
hereinafter provided for; and
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(b) any documents, instruments or agreements expressly called for
hereunder which exist and have not previously been delivered.
Seller may waive compliance on Buyer's part under any of the foregoing
items by an instrument in writing.
5.4. Other Documents Seller and Buyer shall each deposit such other
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instruments as are reasonably required by the escrow holder or otherwise
required to close the escrow and consummate the purchase of the Property in
accordance with the terms hereof.
5.5. Prorations Rents, real property taxes, and other items of income
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and expense of ownership of the Property shall be prorated as of 12:01 a.m. on
the date the Deed is recorded on the basis of a 365-day year.
5.6. Closing Costs Transfer taxes applicable to the sale of the
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Property (if any), the fee for the Title Policy, escrow charges and other costs
of the Closing shall be paid one-half (1/2) by the Seller and one-half (1/2) by
the Buyer. Each party shall pay its own attorneys' fees in connection with the
sale.
6. REVIEW PERIOD
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6.1. To assist Buyer in evaluating the Property, Seller will deliver
to Buyer within ten (10) calendar days after the date of Seller's execution and
delivery of this Agreement to Buyer (the date of Buyer's actual delivery being
referred to herein as the "Delivery Date") the following (collectively, the
"Review Materials"):
(a) A preliminary title report and offer of title commitment,
issued by the Title Company, indicating the condition of title to the Property
(the "Preliminary Report"), accompanied by legible copies of all documents
listed as exceptions to coverage in the Title Report.
(b) Copies of (i) all maintenance, repair and operating records
relating to the maintenance, repair and operation of the Property which have
been maintained by Seller in the business records of Seller in the ordinary
course of business, (ii) all documents evidencing permits, licenses, approvals,
utility rights, development rights and similar rights relating to ownership,
operation and/or maintenance of the Property, if any, whether granted by
governmental authorities or private persons that are in the possession of
Seller, (iii) all assignable warranties and guaranties covering all or any part
of the Property that are in the possession of Seller, and (iv) any leases or
occupancy agreements affecting the Property.
(c) A copy of ad valorem tax bills (both real and personal
property taxes) for the Property for the current tax year (if available to
Seller) as well as the immediately preceding tax year.
(d) To the extent not already provided to Buyer, copies of all
environmental reports and test results for the Property or neighboring property
performed by or for Seller or any of its affiliates or Seller's property manager
or otherwise in Seller's possession.
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(e) All service contracts, maintenance contracts, management
contracts, certificates of occupancy, audits of the compliance of the
Improvements with applicable laws (including, without limitation, the Americans
with Disabilities Act), warranties, soils and geologic reports, hazardous
materials reports or audits, insurance policies, operating statements for the
Property for the prior two (2) years.
(f) All existing and pending leases (and any amendments,
modifications, and letter agreements relating thereto) affecting the Property,
as well as a current rent roll for the Property, listing for each tenant the
name, rent, obligation for reimbursement for expenses, amount of deposit and
prepaid rent, if any, lease commencement date, lease termination date, lease
options, option rent, and cost of living or other rent escalation clauses; and
(g) All "as-built" plans and specifications for the Property,
which shall include, without limitation, any mechanical, electrical, HVAC,
plumbing and life safety system plans, specifications and drawings, and service
records for the building systems in the Improvements and the operating and
maintenance statements and manuals therefor.
All Review Materials shall be delivered by Seller to Buyer at one time,
under cover of a letter signed by Seller specifying by category the documents
provided and containing Seller's representation that due diligence was used in
the effort to locate the documents herein identified and that such documents as
were located, are to the best of Seller's knowledge after diligent search and
inquiry, all of the herein identified by Seller.
6.2. Buyer and its representatives, consultants and contractors may
enter upon the Property at any time and make inspections and tests (including
soil borings and environmental tests) regarding the Property as Buyer deems
necessary or desirable; provided that Buyer must obtain Seller's approval of any
intrusive or destructive testing. Damages to the Property resulting from any
inspection or testing conducted by or at the direction of Buyer will be repaired
by Buyer so that the Property is restored to its original condition. Buyer will
indemnify, defend and hold harmless Seller against any claim arising out of
activities conducted at the Property pursuant to this Section 6.2 by Buyer and
its representatives, consultants and contractors and related damage, cost or
expense (including fees and disbursements of attorneys and other professionals
and court costs).
6.3. Buyer may terminate its obligation to complete the Purchase at
any time during the 45-day period commencing on the Delivery Date (the "Review
Period") if Buyer, in its sole discretion, is not satisfied with the Property or
any matter relating to the Property, including the physical or environmental
condition of the Property, title to the Property or the Property's operating
history, or if Buyer is unable to procure the Loan Commitment. Buyer may
exercise its right under this Section 6.3 by giving Seller written notice so
long as actually delivered during the Review Period. Upon delivery of the
notice, Seller shall direct the Title Company to return the Deposit to the
Buyer. Failure to timely approve the Property in writing shall constitute an
election by Buyer to terminate this Agreement in which event the title company
shall return to Buyer the Deposit.
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7. REPRESENTATIONS AND WARRANTIES OF SELLER
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Seller hereby represents and warrants to Buyer as follows:
7.1. Seller is a general partnership duly organized and validly
existing and in good standing under the laws of the State of California and all
documents executed by Seller which are to be delivered to Buyer at the Closing
are or at the time of Closing will be duly authorized, executed and delivered by
Seller, and are or at the Closing will be legal, valid and binding obligations
of Seller, and do not and at the time of Closing will not violate any provisions
of any agreement, mortgage, deed, note or other document or instrument to which
Seller is a party or to which it is subject.
7.2. There are no known claims, suits or proceedings which are pending
against Seller or which relate to the Property or the use or operation thereof
and, to the knowledge of Seller, no such claims, suits or proceedings are
threatened or anticipated against Seller.
7.3. All contracts or documents delivered by Seller to Buyer pursuant
to this Agreement or in connection with the execution hereof are and at the time
of Closing will be, so far as is known to Seller at the time of delivery, true,
complete and correct copies.
7.4. At the time of Closing there will be no outstanding contracts
made by Seller for any improvements to the Property which have not been fully
paid for and Seller shall cause to be discharged all mechanics' or materialmen's
liens arising from any labor or materials furnished to the Property prior to the
time of Closing.
7.5. There are no leases or occupancy agreements of any kind
recognized by Seller relating to the Real Property or any portion thereof other
than those delivered and identified on the rent roll.
7.6. Seller is not aware of any actually communicated assertion by any
party that the Property is in material violation of any laws. Seller has not
ever been subject to or received any notice of any private, administrative or
judicial action, or notice of any intended private, administrative or judicial
action relating to code violations, or of the presence or alleged presence of
Hazardous Material in, under, upon or emanating from the Property. There are no
known pending or threatened actions or proceedings from any governmental agency
or any other entity involving remediation of any condition of the Property,
including, without limitation, petroleum contamination, pursuant to
Environmental Laws. (As used in this Agreement, "Hazardous Material" shall mean
the substances (i) defined as "Hazardous Waste" in 40 CFR 261, and substances
defined in any comparable California statute or regulation; (ii) any substance
the presence of which requires remediation pursuant to any Environmental Laws;
and (iii) any substance disposed of in a manner not in compliance with
Environmental Laws.) the federal Resource Conservation Recovery Act, 42 USC
(S)6901 et seq. ("RCRA").
7.7. No underground storage tanks containing petroleum products or
wastes or other hazardous substances regulated by 40 CFR 280 or Environmental
Laws have been installed or discovered on the Property during Seller's ownership
thereof.
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7.8. The Property is not the subject of, or would be affected by, any
pending condemnation or eminent domain proceedings, and to the knowledge of the
Seller, no such proceedings are threatened.
7.9. All documents executed by Seller which are to be delivered to
Buyer at the Closing are or at the time of Closing will be duly authorized,
executed and delivered by Seller, are or at the time of Closing will be legal,
valid and binding obligations of Seller, and do not and at the time of Closing
will not violate any provisions of any agreement, mortgage, deed, note or other
document or instrument to which Seller are a party or to which the Property is
subject.
8. REPRESENTATIONS AND WARRANTIES OF BUYER Buyer hereby represents and
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warrants to Seller that Buyer is a Delaware corporation duly organized and
validly existing and is in good standing under the laws of the State of
California and all documents executed by Buyer which are to be delivered to
Seller at the Closing are or at the time of Closing will be duly authorized,
executed and delivered by Buyer, and are or at the Closing will be legal, valid
and binding obligations of Buyer, and do not and at the time of Closing will not
violate any provisions of any agreement, mortgage, deed, note or other document
or instrument to which Buyer is a party or to which it is subject.
9. REMEDIES
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9.1. If, following approval of the Property, Buyer fails to purchase
the Property in default of this Agreement, Seller, as its sole and exclusive
remedy, may terminate its obligation to consummate the Closing and, upon doing
so, shall be entitled to receive the Deposit.
9.2. If Seller fails to perform its obligations to convey the Property
to Buyer, Buyer, at Buyer's option, may enforce specific performance, seek
monetary damages, and/or terminate its obligation to purchase the Property. The
foregoing remedies are meant to be cumulative, and not exclusive, nor shall this
Section 9.d serve to limit Buyer's options to seek relief at law or in equity in
the event of Seller's default hereunder. If Buyer terminates its obligation to
purchase the Property under this Section 9.2, (a) the Deposit shall be returned
to Buyer, and (b) Buyer shall be entitled to recover from Seller its out-of-
pocket costs in negotiating this Agreement and reviewing the Property up to
$25,000.00 in the aggregate.
10. INDEMNIFICATION Each party hereby agrees to indemnify the other party
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and hold it harmless from and against any and all claims, demands, liabilities,
costs, expenses, penalties, damages and losses, including, without limitation,
reasonable attorneys' fees, resulting from any material misrepresentations or
breach of warranty or breach of covenant made by such party in this Agreement or
in any document, certificate, or exhibit given or delivered to the other
pursuant to or in connection with this Agreement. The indemnification provisions
of this Section 10 shall survive beyond the delivery of the Deed and transfer of
title so long as applicable limitations statutes permit for said breach or
misrepresentation.
11. CASUALTY OR CONDEMNATION In the event that, prior to Closing, the
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Property, or any material part thereof, is destroyed or damaged, or if
condemnation proceedings
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are commenced against the Property or any material part thereof, Buyer shall
have the right, exercisable by giving notice of such decision to Seller within
ten (10) business days after receiving written notice from Seller of such
damage, destruction or condemnation proceedings, to terminate this Agreement, in
which case, neither party shall have any further rights or obligations
hereunder. If Buyer elects to accept the Property in its then condition, all
proceeds of insurance or condemnation awards payable to Seller by reason of such
damage, destruction or condemnation shall be paid or assigned to Buyer.
12. POSSESSION Possession of the Property shall be delivered to Buyer on
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the Closing Date. Prior to the closing, Seller shall afford Buyer or authorized
representatives of Buyer reasonable access to the Property for the purposes of
conducting soils tests, surveys or other physical inspections of the Property.
Buyer shall indemnify Seller and hold Seller harmless against all loss, cost,
damage and expenses, including reasonable attorneys' fees, arising from or
related entry onto the Property by Buyer and its representatives.
13. BUYER'S CONSENT TO NEW CONTRACTS AFFECTING THE PROPERTY Seller shall
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not, after the date of Seller's execution of this Agreement, enter into any
agreement affecting the Property or any aspect thereof without obtaining Buyer's
consent thereto, which consent Buyer may withhold only in its reasonable good
faith discretion. Notwithstanding the foregoing, in no event will Seller enter
into a new lease for space in the Property or any amendment of any existing
lease for space in the Property which extends the then-current term of such
lease or expands the premises leased thereunder, without Buyer's advance written
consent thereto.
14. AS-IS The Property is being sold AS IS and without any warranty other
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than those expressly included in this Agreement. BUYER, in removing the review
contingency, agrees that they have relied solely and exclusively upon their own
or their employed agents and/or experts inspections, inquiries, and
investigation, and have not relied upon anything said by or on behalf of SELLER.
Except with respect to the representations contained herein, SELLER has not
authorized ANY PERSON to make any representation on behalf of SELLER and any
reliance by BUYER upon any person who purports to represent SELLER is
unreasonable. It is understood and agreed that, although SELLER has employed a
real estate agent and attorney to facilitate this transaction, neither have been
authorized to make any factual representations, promises, or provide any factual
or legal warranties.
15. MISCELLANEOUS
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15.1. Notices Any notice, consent, approval, waiver or other
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communication required or permitted to be given under this Agreement shall be in
writing and shall be (i) delivered personally, (ii) deposited with the United
States Postal Service, all charges and first class postage prepaid or (iii)
delivered by nationally recognized overnight courier, addressed as follows:
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If to Seller:
Name:___________________________________
Street Address:_________________________
City, State, Zip Code:__________________
If to Buyer:
Tenfold Corporation
181 West Election Road
Draper, Utah 84020
Attn: General Counsel
With a copy to:
Tenfold Corporation
100 Foster City Boulevard
Suite 200
Foster City, CA 94404
Attn: Lease Administrator
and to:
Shartsis, Friese & Ginsburg LLP
One Maritime Plaza, 18th Floor
San Francisco, California 94111
Attention: Jonathan M. Kennedy, Esq.
or such other address as either party may from time to time specify by notice
hereunder to the other. Notice shall be deemed given on the date of delivery
(or the date delivery is refused by addressee) unless such date is a weekend or
holiday, in which event the Notice shall be deemed given on the next succeeding
business day.
15.2. Brokers and Finders Seller acknowledges that Seller has been
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represented by Keegan & Coppin & Company ("KCC"), and Buyer acknowledges that
Buyer has been represented by Cushman & Wakefield, ("C&W") (KCC and C&W being
referred to collectively herein as "Brokers") in the negotiation of the this
transaction. Brokers shall be paid a commission by Seller pursuant to a
separate agreement. Neither party has had any contact or dealings regarding the
Property, or any communication in connection with the subject matter of this
transaction, through any licensed real estate broker or other person who can
claim a right to a commission or finder's fee as a procuring cause of the sale
contemplated herein. If any broker or finder perfects a claim for a commission
or finder's fee based on any such contact, dealings or communication, the party
through whom the broker or finder makes such claim shall be responsible for said
commission or fee and all costs and expenses, including reasonable attorneys'
fees, incurred by the other party in defending against the same.
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15.3. Successors and Assigns This Agreement shall bind and inure to
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the benefit of the parties hereto and their respective successors, heirs,
administrators and assigns. Without being relieved of any liability under this
Agreement, Buyer reserves the right to take title to the Property in a name or
assignee other than Buyer.
15.4. Amendments This Agreement may be amended or modified by, and
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only by, a written instrument executed by Seller and Buyer.
15.5. Governing Law This Agreement shall be governed by and
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construed and interpreted in accordance with the laws of the State of
California.
15.6. Merger of Prior Agreements This Agreement contains the entire
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agreement of the parties and supersedes all prior negotiations, correspondence,
understandings and agreements between the parties relating to the subject matter
hereof.
15.7. Attorneys' Fees In the event of litigation between the parties
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hereto arising from this Agreement or the performance of either party hereunder,
and whether in contract, tort, or in equity, the prevailing party shall be
entitled to recover their reasonably expended attorneys' fees. This right to
attorneys' fees shall be forfeited by any party who fails to demand and
participate in mediation, in advance of filing a lawsuit.
15.8. Time of the Essence Time is of the essence of this Agreement.
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15.9. Specific Performance Seller acknowledge that in the event of a
--------------------
breach or default or threatened breach or default under this Agreement by Seller
prior to the Closing, damages at law will be an inadequate remedy and,
accordingly, without in any manner limiting any other remedies available to
Buyer, Seller's obligations under this Agreement may be enforced by specific
performance.
15.10. Interpretation Whenever used herein, the term "including"
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shall be deemed to be followed by the words "without limitation." Words used in
the singular number shall include the plural, and vice-versa, and any gender
shall be deemed to include each other gender. The captions and headings of the
Articles and Sections of this Agreement are for convenience of reference only,
and shall not be deemed to define or limit the provisions hereof.
15.11. Counterparts This Agreement may be executed in any number of
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counterparts which together shall constitute the Agreement.
15.12. Exhibits The following exhibits are attached hereto.
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Exhibit A Description of Property
Exhibit B Schedule of Personal Property
Exhibit C Deed
Exhibit D Assignment of Permits and Other Intangible Reports
Exhibit E Bill of Sale
Exhibit F Affidavit of Non-Foreign Status
Exhibit G Estoppel Certificate Form
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
BUYER:
TENFOLD CORPORATION,
a Delaware corporation
By: /s/ Robert P. Hughes
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Its: Chief Financial Officer
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SELLER:
181 INVESTORS,
a California general partnership
By: /s/ Peter F. Walz
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Its: Partner
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By: /s/ Allen Cristofani
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Its: Partner
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By: /s/ Arthur R. Nicolaisen
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Its: Partner
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By: /s/ Ian MacLeod
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Its: Partner
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Exhibit A
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DESCRIPTION OF REAL PROPERTY
All of that certain real property situated in the City of San Rafael,
County of Marin, State of California, described as follows:
LOT 6C, as shown upon that certain Map entitled "Map of Smith Ranch -
Southerly Portion", filed for record June 9, 1978 in Volume 17 of Maps, at Page
40, Marin County Records.
EXHIBIT A
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Exhibit B
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SCHEDULE OF PERSONAL PROPERTY
None
Exhibit C
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DEED
Recording Requested By and
When Recorded Return To:
Shartsis, Friese & Ginsburg LLP
One Maritime Plaza, 18th Floor
San Francisco, CA 94111
Attn: Jonathan M. Kennedy, Esq.
Mail Tax Statements To:
Tenfold Corporation
____________________________
____________________________
____________________________
Attn:_______________________
________________________________________________________________________________
(Space above this line for Recorder's use only.)
TRANSFER TAX NOT TO BE DISCLOSED
OF PUBLIC RECORD - SEE STATEMENT
SUBMITTED HEREWITH
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
_______________________________, a _____________ ("GRANTOR"), hereby
GRANTS to
TENFOLD CORPORATION ("GRANTEE"),
all the real property situated in Marin County, California described in
Exhibit A attached hereto and incorporated herein by this reference.
IN WITNESS WHEREOF, the undersigned has executed these presents this _____
day of ______________, 2000.
________________________________________,
a_______________________________________
By:_____________________________________
Name:___________________________________
Its:____________________________________
Recording Date: _____________ Official Record No.: ______________
EXHIBIT C
1
STATEMENT OF TAX DUE
AND
REQUEST THAT AMOUNT PAID NOT BE MADE A PART OF THE PERMANENT
RECORD IN THE OFFICE OF THE RECORDER
(Pursuant to Section 11934 of the Revenue & Taxation Code)
To: Marin County Recorder
Request is hereby made, in accordance with the provisions of the
Documentary Transfer Tax Act, that this form showing the amount of tax due not
be made part of the permanent record in the Office of the Recorder.
Grantor: ___________, a ___________ limited partnership
Grantee: TENFOLD CORPORATION, a Delaware corporation
The property described in the accompanying document is located in:
( ) Unincorporated area. (X) City of: San Rafael
Declaration: Documentary Transfer Tax: $
( ) Computed on full value of property
conveyed
or
( ) Computed on full value less liens and
encumbrances remaining at the time
of sale.
NOTE: After the permanent record is made, this form will be affixed to the
conveying document and returned with it.
EXHIBIT C
2
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
State of California
County of
On __________, before me, _______________________________________________,
Date Name and Title of Officer (e.g., "Jane
Doe, Notary Public")
Personally appeared ______________________________________________________
Name(s) of Signer(s)
[_] personally known to me
[_] proved to me on the basis
of satisfactory evidence
to be the person(s) whose name(s) is/are
subscribed to the within instrument and
acknowledged to me that he/she/they
executed the same in his/her/their
authorized capacity(ies), and that by
his/her/their signature(s) on the
instrument the person(s), or the entity
upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
--------------------------------------
Place Notary Seal Above Signature of Notary Public
____________________________________OPTIONAL__________________________________
Though the information below is not required by law, it may prove valuable
to persons relying on the document and could prevent fraudulent removal
and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:________________________________________________
Document Date:_____________________ Number of Pages:_____________________
Signer(s) Other Than Named Above:_________________________________________
Capacity(ies) Claimed by Signer
Signer's Name:__________________________________________________
[_] Individual
[_] Corporate Officer - Title(s)____________________________________
[_] Partner - [_] Limited [_] General
[_] Attorney in Fact
[_] Trustee
[_] Guardian or Conservator
[_] Other___________________________________________________________
Signer is Representing:______________________________________________
EXHIBIT C
3
Exhibit A
---------
to Deed
LEGAL DESCRIPTION
[Insert Legal Description]
EXHIBIT C
4
Exhibit D
---------
ASSIGNMENT OF PERMITS
AND OTHER INTANGIBLE PROPERTY
THIS ASSIGNMENT dated _____________, 19__ (the "Assignment"), is made by
181 INVESTORS, a California general partnership ("Assignor") to TENFOLD
CORPORATION, a Delaware corporation ("Assignee").
FOR GOOD AND VALUABLE CONSIDERATION, the receipt of which is hereby
acknowledged, Assignor hereby assigns and transfers unto Assignee all of its
right, title, claim and interest in and under any and all governmental permits
and other intangible property owned by Assignor in connection with that certain
real property described in Exhibit A attached hereto (the "Real Property") or
any improvements or personal property located thereon, including without
limitation, any of Assignor's interest in or rights under licenses or planning
approvals and any contract rights, agreements, utility contracts, warranties,
guaranties, general intangibles or other rights relating to the ownership,
development, use or operation of Real Property.
Assignor warrants and represents that as of the date the Real Property is
conveyed to Assignee there are no assignments of or agreements to assign the
foregoing permits and other intangible property to any other party.
The Assignment shall be binding on and inure to the benefit of the parties
hereto and the successors and assigns.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as
of the date and year first above written.
ASSIGNOR:
181 INVESTORS,
a California general partnership
By: ___________________________________
Its: __________________________________
ASSIGNEE:
TENFOLD CORPORATION,
a Delaware corporation
By: ___________________________________
Its: __________________________________
1
Exhibit A
---------
to Assignment of Permits and Other Intangible Property
LEGAL DESCRIPTION
All of that certain real property located in Marin County, California
described as follows:
[Insert Legal Description]
2
Exhibit E
---------
BILL OF SALE
None
Exhibit F
---------
AFFIDAVIT OF NON-FOREIGN STATUS
INTERNAL REVENUE CODE SECTION 1445
Section 1445 of the Internal Revenue Code provides that a transferee of a
U.S. real property interest must withhold tax equal to ten percent of the
purchase price if the transferor is a foreign person. Such transferee is exempt
from such obligation to withhold if the transferor provides the transferee an
affidavit that the transferor is not a foreign person.
To induce TENFOLD CORPORATION, a Delaware corporation ("Transferee"), to
not withhold tax under such Section 1445 upon the transfer by 181 Investors, a
California general partnership ("Transferor"), of a U.S. real property interest
located in Marin County, California, as more particularly described in Exhibit A
attached hereto, the following affidavit is made on behalf of Transferor under
penalty of perjury and with knowledge that Transferee will rely thereon.
1. Transferor is not a foreign person or foreign corporation, foreign
partnership, foreign trust (as those terms are defined in the Internal Revenue
Code);
2. The tax identification number of the Transferor is _____________; and
3. The Transferor resides at the following addresses: __________________
._________________________________________________________________________
Transferor understands that this certification may be disclosed to the
Internal Revenue Service by Transferee, and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalty of perjury, the undersigned declares that he/she has examined
this certificate and to the best of his/her knowledge and belief it is true,
correct and complete.
Date: _____________, 19__
181 INVESTORS,
a California general partnership
By: _____________________________________
Its: ____________________________________
1
Exhibit A
---------
to Affidavit of Non-foreign Status
Internal Revenue Code Section 1445
LEGAL DESCRIPTION
All of that certain real property located in Marin County, California,
described as follows:
[Insert Legal Description]
2
Exhibit G
---------
TENANT'S ESTOPPEL CERTIFICATE
AND
ATTORNMENT AGREEMENT
To: ____________________
____________________
____________________
Re: ____________________
The undersigned (the "Lessee") understands that you are presently
negotiating the purchase of the certain real property commonly known as
_________________________ of which the Lessee is a tenant pursuant to the terms
of that certain Lease dated _______, by and between Lessee and
______________________ ("Lessor"), including any amendments to or modifications
of the same. The Lessee hereby certifies the following information with respect
to the Lease under which the Lessee is a tenant and agrees that you may rely
upon the same in purchasing said real property:
1. The copy of the Lease attached hereto as Exhibit A is a true, correct
and complete copy of the Lease, and the Lease is in full force and effect and
has not been modified or amended except as specifically set forth below.
2. The Lessee asserts no claim of default or offset or defense against
the payment of rent or other charges payable by the Lessee and asserts no claim
against the Lessor under the Lease in regard to the premises occupied by Lessee.
There is no default by Lessor under the Lease.
3. All fixed minimum rental has been paid to the end of the current
calendar month, which is fixed rent presently in the following sum: $_________,
and no rent under the Lease has been paid more than one month in advance of its
due date.
4. The Lease commencement and termination dates are: _______________ and
_______________.
5. Date of original Lease: ________________________ Dates of any
amendments or modifications: _________________________________________________
_____________________________________.
6. Current annual fixed minimum rental: _______________________________
___________________________________________________.
7. Lease termination date: _______________________________.
8. The Lease provides _____ (number of options) option(s) to renew for
additional term(s) of __________.
9. The Lease contains no first right of refusal, option to expand, or
option to terminate, except as follows: ______________________________________
_______________________________________. No notice to terminate has been given
by the undersigned.
10. Lessor is holding a security deposit of $____________.
11. The undersigned is not in default under the Lease and is current in
the payment of any taxes, utilities, common area maintenance payments, or other
charges required to be paid by the undersigned.
12. The improvements and space required to be furnished according to the
Lease have been duly delivered by the Lessor and accepted by the Lessee.
13. Lessee has no defenses as to its obligations under the Lease and
claims no setoff or counterclaim against Lessor.
14. Lessee has not received notice of any assignment, hypothecation,
mortgage, or pledge of Lessor's interest in the Lease or the rents of other
amounts payable thereunder.
15. Lessee has not entered into any sublease, assignment or other
agreement transferring any of its interest in the Lease or the leased premises.
16. Lessee agrees to attorn to any successor-in-interest to Lessor and be
bound by all the terms, covenants and conditions of the Lease for the balance of
the term thereof.
17. The Lessee certifies that he is required to pay a pro rata share of
real property taxes, as well as a pro rata share of the following operating
expenses: ____________________________________________________________________
_______________________________________________________________________________.
Moreover, the Lessee is required to pay or all utilities, including water and
sewer, used in and upon the leased premises and is responsible for all repairs
and maintenance to the HVAC/mechanical systems.
18. Under the Lease the Lessee is entitled to the use of _____________
parking spaces.
Dated: _____________, 19__.
Very truly yours,
By____________________________
Its___________________________
Exhibit H
---------
ASSIGNMENT OF LEASES
THIS AGREEMENT dated _________, 2000 (the "Agreement"), is entered into by
and between 181 INVESTORS, a California general partnership (collectively,
"Assignor") and TENFOLD CORPORATION, a Delaware corporation ("Assignee")
WITNESSETH:
----------
WHEREAS, Assignor is the lessor under certain leases executed with respect
to that certain real property commonly known as 171-181 Carlos Drive, San
Rafael, California, which leases are described in Schedule 1 attached hereto
(the "Leases"); and
WHEREAS, Assignor desires to assign its interest as lessor in the Leases to
Assignee, and Assignee desires to accept the assignment thereof;
NOW, THEREFORE, in consideration of the promises and conditions contained
herein, the parties hereby agree as follows:
1. Assignor hereby assigns to Assignee all of its right, title and
interest in and to the Leases herein described.
2. Assignor warrants and represents that as of the date hereof:
(a) The attached list includes all of the Leases affecting the
property being acquired by Assignee from Assignor. As of the date hereof,
there are no assignments of or agreements to assign the Leases to any other
party.
(b) The Leases are in full force and effect and there exist no
default on the part of Assignor thereunder, nor does Assignor have any
actual knowledge of any defaults or any acts or events which with the
passage of time or the giving of notice could become defaults thereunder on
the part of any tenant thereunder.
3. Assignee hereby assumes all of the landlord's or lessor's obligations
under the Leases described in Schedule 1 and agrees to indemnify Assignor
against and hold Assignor harmless from any and all cost, liability, loss,
damage or expense, including without limitation, reasonable attorneys' fees,
originating subsequent to the date hereof and arising out of the lessor's
obligations under the Leases.
4. In the event of any litigation between Assignor and Assignee arising
out of the obligations of the parties under this Assignment or concerning the
meaning or interpretation of any provision contained herein, the losing party
shall pay the prevailing party's costs and expenses of such litigation,
including, without limitation, reasonable attorney's fees.
1
5. This Agreement shall be binding on and inure to the benefit of the
parties hereto, their heirs, executors, administrators, successors in interest
and assigns.
IN WITNESS WHEREOF, the Assignor and Assignee have executed this Agreement
the day and year first above written.
ASSIGNOR:
181 INVESTORS,
a California general partnership
By: _______________________________
Its: ______________________________
ASSIGNEE:
TENFOLD CORPORATION,
a Delaware corporation
By: _______________________________
Its: ______________________________
2
SCHEDULE 1
Tenant Premises Lease Date Amendment Date(s)
- ------ -------- ---------- -----------------
[to be completed]
3