Exhibit #10.44
PURCHASE AGREEMENT
between
FAIR, ISAAC AND COMPANY, INC.
and
SAN RAFAEL CORPORATE CENTER, LLC
June 28, 2000
Lindaro Office Park
San Rafael, California
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TABLE OF CONTENTS
Page
ARTICLE 1 Purchase and Sale....................................................1
1.1 The Property....................................................1
1.2 Property Approval Period........................................2
ARTICLE 2 Purchase Price.......................................................3
2.1 Amount and Payment..............................................3
2.2 Deposit.........................................................3
2.3 Liquidated Damages..............................................3
ARTICLE 3 Completion of Sale...................................................4
3.1 Place and Date..................................................4
3.2 Exchange........................................................4
ARTICLE 4 Title and Condition..................................................4
4.1 Title to the Property...........................................4
4.2 Acceptance of Title.............................................5
4.3 Condition of the Property.......................................5
ARTICLE 5 Representations and Warranties.......................................6
5.1 Seller..........................................................6
5.2 Buyer...........................................................7
ARTICLE 6 Covenants............................................................8
6.1 Seller..........................................................8
6.2 Buyer...........................................................9
6.3 Eminent Domain.................................................10
ARTICLE 7 Conditions Precedent................................................10
7.1 Seller.........................................................10
7.2 Buyer..........................................................12
ARTICLE 8 Closing ............................................................13
8.1 Procedure......................................................13
8.2 Possession.....................................................13
8.3 Closing Costs..................................................14
8.4 Prorations.....................................................14
ARTICLE 9 General ............................................................14
9.1 Notices........................................................14
9.2 Attorneys' Fees................................................15
9.3 Governing Law..................................................15
9.4 Construction...................................................15
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9.5 Terms Generally................................................15
9.6 Further Assurances.............................................15
9.7 Partial Invalidity and Waiver..................................16
9.8 Waiver of Jury Trial...........................................16
9.9 Miscellaneous..................................................16
Exhibit A Preliminary Report
Exhibit B Permits
Exhibit C Agreements
Exhibit D Plans and Specifications
Exhibit E Environmental Assessments
Exhibit F Grant Deed
Exhibit G PG&E Assignment
Exhibit H General Assignment
Exhibit I Seller's Closing Certificate
Exhibit J Sublease Estoppel Certificate
Exhibit K Development Agreement Estoppel Certificate
Exhibit L Buyer's Closing Certificate
Exhibit M Amendment to Development Agreement
Exhibit N Consent and Agreement
Exhibit O Certificate of Nonforeign Status
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PURCHASE AGREEMENT
THIS AGREEMENT, made as of June 28, 2000, by and between FAIR, ISAAC
AND COMPANY, INC., a Delaware corporation ("Seller"), and SAN RAFAEL CORPORATE
CENTER, LLC, a Delaware limited liability company ("Buyer"),
W I T N E S S E T H:
In consideration of the covenants in this Agreement, Seller and Buyer
agree as follows:
ARTICLE 1
Purchase and Sale
1.1 The Property. Seller agrees to sell to Buyer and Buyer agrees to
purchase from Seller, in accordance with this Agreement, all of the following
property (collectively, the "Property"):
(a) The real property in the City of San Rafael, Marin County,
California, comprising approximately 12.9 acres, more or less, commonly known as
the Lindaro Office Park site, described in Preliminary Report No. 8-208866SB
Second Supplemental dated as of June 14, 2000 (the "Preliminary Report"),
prepared by First American Title Insurance Company (the "Title Company"), a copy
of which is attached hereto as Exhibit A, together with all improvements on such
real property and all easements and rights appurtenant to such real property
(all such real property, improvements, and easements and rights are collectively
the "Real Property");
(b) All development approvals, entitlements and permits (the "Permits")
relating to the Real Property described in Exhibit B attached hereto;
(c) Seller's interest in all agreements (the "Agreements") relating to
the Real Property described in Exhibit C attached hereto;
(d) All plans and specifications (the "Plans and Specifications")
relating to the Real Property described in Exhibit D attached hereto;
(e) Seller's interest in the Sublease (the "Sublease") dated June 13,
2000, between Seller, as landlord, and the City of San Rafael, a charter city
(the "City"), as tenant, relating to the Real Property;
(f) Seller's interest in all soils, environmental, engineering and
other reports of consultants relating to the condition or development of the
Real Property but only to the extent Seller has the right to assign such soils,
environmental, engineering and other reports of consultants to Buyer; and
(g) Seller's interest in the name "Lindaro Office Park" relating to the
Real Property.
EXHIBIT O
1.2 Property Approval Period.
(a) During the period from the date of this Agreement to July 28, 2000
(the "Property Approval Period"), Buyer shall, in good faith and with diligence,
at Buyer's expense, review and investigate the Permits, the Agreements, the
Plans and Specifications, the environmental reports (the "Environmental
Assessments") relating to the Real Property described in Exhibit E attached
hereto, the physical and environmental condition of the Real Property, the
character, quality and general utility of the Property, the zoning, land use,
environmental and building requirements and restrictions applicable to the Real
Property, the state of title to the Real Property, and the Sublease. Seller
shall, on or before the first day of the Property Approval Period, furnish to
Buyer a current ALTA survey of the Real Property for review by Buyer during the
Property Approval Period. Buyer shall determine whether or not the Property is
acceptable to Buyer within the Property Approval Period. If, during the Property
Approval Period, Buyer determines, in the sole discretion of Buyer, that the
Property is not acceptable for any reason, Buyer shall have the right, by giving
notice to Seller on or before the last day of the Property Approval Period, to
terminate this Agreement. If Buyer exercises the right to terminate this
Agreement in accordance with this section 1.2, this Agreement shall terminate as
of the date such termination notice is given by Buyer, in which event the
Initial Deposit (as hereinafter defined) and all interest thereon shall be
returned to Buyer. If Buyer does not exercise the right to terminate this
Agreement in accordance with this section 1.2, this Agreement shall continue in
full force and effect, and Buyer shall have no further right to terminate this
Agreement pursuant to this section 1.2.
(b) During the Property Approval Period, Seller shall permit Buyer and
Buyer's representatives to inspect and copy the files of Seller relating to the
Property, including the Permits, the Agreements, the Plans and Specifications,
the Sublease, the Environmental Assessments, soils and engineering reports, and
construction cost estimates, but excluding appraisal and valuation reports and
similar information, and Seller shall provide Buyer and Buyer's representatives
with access to the Property at reasonable times during normal business hours on
business days for the purposes of carrying out the responsibilities of Buyer
pursuant to this section 1.2. Buyer acknowledges that the materials relating to
the Property to be furnished by Seller to Buyer contain confidential and
proprietary information. Buyer agrees to keep all such information confidential
and not to disclose any such information to any third party except to the extent
necessary to carry out the responsibilities of Buyer pursuant to this section
1.2 or to obtain financing for the Property. If Buyer exercises the right to
terminate this Agreement in accordance with this section 1.2, Buyer shall,
within five (5) days after the termination date, return to Seller all copies of
all materials relating to the Property theretofore furnished by Seller.
(c) Buyer shall indemnify and defend Seller against and hold Seller
harmless from all claims, demands, liabilities, losses, damages, costs and
expenses, including reasonable attorneys' fees and disbursements, arising from
any entry on the Property by Buyer or any of Buyer's representatives. The
foregoing indemnification covenant shall survive any termination of this
Agreement. Buyer shall, promptly after completion thereof, provide Seller with
copies of all studies, tests, reports and other documents or materials relating
to the Property that are prepared, conducted or made by, for or on behalf of
Buyer (excluding revisions made to the Plans and Specifications by Buyer and
additional plans and specifications for improvements on the Real Property
prepared by Buyer).
EXHIBIT O
ARTICLE 2
Purchase Price
2.1 Amount and Payment. The total purchase price for the Property shall
be thirty million two hundred fifty thousand dollars ($30,250,000). At the
Closing (as hereinafter defined) on the Closing Date (as hereinafter defined),
Buyer shall pay the total purchase price for the Property to Seller in cash in
immediately available funds.
2.2 Deposit. Within two (2) business days after the date of this
Agreement, Buyer shall deposit the sum of one million dollars ($1,000,000) (the
"Initial Deposit") in cash in immediately available funds in escrow with the
Title Company. If Buyer does not exercise the right to terminate this Agreement
in accordance with section 1.2 hereof, Buyer shall, within two (2) business days
after the last day of the Property Approval Period, deposit the sum of four
million dollars ($4,000,000) (the "Additional Deposit") in cash in immediately
available funds in escrow with the Title Company. The Initial Deposit and the
Additional Deposit are collectively the "Deposit." The Deposit shall be held by
the Title Company in an interest-bearing account designated in writing by Buyer
and approved in writing by Seller. If Seller and Buyer complete the purchase and
sale of the Property in accordance with this Agreement, the Deposit and all
interest thereon shall be applied to payment of the total purchase price for the
Property in accordance with section 2.1 hereof. If the purchase and sale of the
Property is not so completed and this Agreement terminates for any reason other
than a default by Buyer under or a breach by Buyer of this Agreement, then the
Deposit and all interest thereon shall be returned to Buyer upon such
termination of this Agreement.
2.3 Liquidated Damages. SELLER AND BUYER AGREE THAT, IF BUYER DEFAULTS
UNDER OR BREACHES THIS AGREEMENT AND FAILS TO PURCHASE THE PROPERTY IN
ACCORDANCE WITH THIS AGREEMENT SOLELY BY REASON OF SUCH DEFAULT OR BREACH,
SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT BY GIVING A NOTICE OF
TERMINATION TO BUYER AND, UPON SUCH TERMINATION OF THIS AGREEMENT, THE DEPOSIT
AND ALL INTEREST THEREON SHALL BE PAID TO SELLER AND RETAINED BY SELLER AS
LIQUIDATED DAMAGES AND AS SELLER'S SOLE REMEDY AT LAW OR IN EQUITY. SELLER AND
BUYER AGREE THAT, UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS
AGREEMENT, ACTUAL DAMAGES MAY BE DIFFICULT TO ASCERTAIN AND THE DEPOSIT AND ALL
INTEREST THEREON IS A REASONABLE ESTIMATE OF THE DAMAGES THAT WILL BE INCURRED
BY SELLER IF BUYER DEFAULTS UNDER OR BREACHES THIS AGREEMENT AND FAILS TO
PURCHASE THE PROPERTY IN ACCORDANCE WITH THIS AGREEMENT.
SELLER'S INITIALS: _____ BUYER'S INITIALS: _____
EXHIBIT O
ARTICLE 3
Completion of Sale
3.1 Place and Date. The purchase and sale of the Property shall be
completed in accordance with Article 8 hereof (the "Closing"). The Closing shall
occur through escrow No. SP-302905-KT with the Title Company at 345 California
Street, Suite 2400, San Francisco, California 94104, on the date that is five
(5) business days after the ordinance adopted by the City approving the
Amendment to Development Agreement (as hereinafter defined) described in
sections 7.1(a) and 7.2(a) hereof becomes effective in accordance with
California Government Section 36937 (the "Closing Date"), or at such other place
or on such other date as Seller and Buyer agree in writing. Prior to the Closing
Date, Seller and Buyer each shall give appropriate written escrow instructions,
consistent with this Agreement, to the Title Company for the Closing in
accordance with this Agreement.
3.2 Exchange. If requested by Buyer, Seller shall cooperate in
reasonable ways with Buyer to effect an exchange of the Real Property for real
property owned by Buyer pursuant to section 1031 of the Internal Revenue Code
and the Income Tax Regulations. Buyer shall be solely responsible for
negotiating the terms of any exchange and preparing and furnishing to Seller all
agreements, escrow instructions and other documents related to any exchange.
Seller shall not be required to take title to any exchange property. All
documents to be executed by Seller in connection with any exchange shall be
subject to the prior written approval of Seller. Seller shall not be required to
assume or incur any additional obligation or liability in connection with any
exchange. Any exchange shall not delay or postpone the Closing Date, Seller
shall have no liability to Buyer if any exchange fails to qualify for
nonrecognition treatment under the income tax laws, and Buyer shall not be
released from its obligations under this Agreement to purchase the Property from
Seller if any exchange fails for any reason. Buyer shall reimburse Seller at the
Closing on the Closing Date for all additional costs and expenses, including
reasonable attorneys' fees and disbursements, incurred by Seller in connection
with any exchange, whether or not any exchange is completed. Buyer shall
indemnify and defend Seller against and hold Seller harmless from all claims,
demands, liabilities, losses, damages, costs and expenses, including reasonable
attorneys' fees and disbursements, arising from or related to any participation
by Seller in any exchange, whether or not any exchange is completed.
ARTICLE 4
Title and Condition
4.1 Title to the Property. Seller shall convey to Buyer good and
marketable fee title to the Real Property, by a duly executed and acknowledged
Grant Deed (the "Grant Deed") in the form of Exhibit F attached hereto, free and
clear of liens, encumbrances, leases, easements, restrictions, rights, covenants
and conditions, except the following (the "Permitted Exceptions"): (a) the
matters shown as exceptions 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16,
17, 25, 26, 27 and 28 in the Preliminary Report, (b) the Sublease, (c) matters
shown by the current ALTA survey of the Real Property or a physical inspection
of the Real Property, and (d) any other matters created, permitted or approved
by Buyer. Seller shall transfer to Buyer good title to the
EXHIBIT O
Agreements to which Pacific Gas and Electric Company, a California corporation
("PG&E"), is a party, by a duly executed and acknowledged Assignment (the "PG&E
Assignment") in the form of Exhibit G attached hereto, free and clear of liens,
security interests and adverse claims. Seller shall transfer to Buyer good title
to the Permits, the Agreements other than the PG&E Agreements, the Plans and
Specifications and the Sublease, by a duly executed Assignment (the "General
Assignment") in the form of Exhibit H attached hereto, free and clear of liens,
security interests and adverse claims.
4.2 Acceptance of Title. Buyer's acceptance of the Grant Deed from
Seller for the Real Property at the Closing on the Closing Date and the issuance
of the title insurance policy described in section 7.2 hereof to Buyer by the
Title Company on the Closing Date shall conclusively establish that Seller
conveyed the Real Property to Buyer as required by this Agreement and shall
discharge in full Seller's obligations under section 4.1 hereof with respect to
title to the Real Property.
4.3 Condition of the Property. Except for the express representations
and warranties of Seller set forth in section 5.1 hereof and in Seller's Closing
Certificate (as hereinafter defined), Buyer is acquiring the Property "AS IS,
WHERE IS, AND WITH ALL FAULTS," without any covenant, representation or warranty
of any kind or nature whatsoever, express or implied, and Buyer is relying
solely on Buyer's own investigation of the Property. Except for such express
representations and warranties, Seller makes no covenants, representations or
warranties, express or implied, of any kind or nature whatsoever with respect to
the Property. Buyer acknowledges that defects, deficiencies or flaws may exist
in the quality, legal compliance, physical condition or general utility of the
Property and Buyer acknowledges that Buyer has been given the opportunity to
investigate and evaluate any such defects, deficiencies and flaws. Buyer
expressly assumes all risks of any such defects, deficiencies and flaws and
Buyer agrees that Seller shall have no liability whatsoever for any such
defects, deficiencies or flaws, except only for such express representations and
warranties made by Seller in section 5.1 hereof and in Seller's Closing
Certificate. Without limiting the foregoing, in connection with Buyer's
investigation of the Real Property during the Property Approval Period, Buyer
shall investigate the presence of hazardous substances (as hereinafter defined)
in, on or under the Real Property and the violation of environmental laws (as
hereinafter defined) at the Real Property. As used in this Agreement, "hazardous
substance" means any substance or material that is described as a toxic or
hazardous substance, waste or material or a pollutant or contaminant, or words
of similar import, in any environmental law and "environmental law" means all
federal, state and local laws, ordinances, rules and regulations now or
hereafter in force, as amended from time to time, in any way relating to or
regulating human health or safety, or industrial hygiene or environmental
conditions, or protection of the environment, or pollution or contamination of
the air, soil, surface water or groundwater. Except only for the express
representations and warranties relating to the Environmental Assessments made by
Seller in section 5.1 hereof and in Seller's Closing Certificate, Buyer hereby
expressly, fully, forever and irrevocably waives and releases all claims,
demands, liabilities, losses and causes of action against Seller that in any way
(directly or indirectly) arise out of, result from or relate to the presence of
any hazardous substance in, on or under the Real Property or the violation of
any environmental law at the Real Property. Buyer intends this Agreement to be a
general release that covers all such claims, demands, liabilities, losses and
causes of action, whether known or
EXHIBIT O
unknown or suspected or unsuspected. Buyer hereby waives all rights under
California Civil Code Section 1542, which provides:
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.
Buyer agrees that this Agreement is a full and final general release of all such
claims, demands, liabilities, losses and causes of action against Seller.
ARTICLE 5
Representations and Warranties
5.1 Seller. The representations and warranties of Seller in this
section 5.1 and in Seller's Closing Certificate are a material inducement for
Buyer to enter into this Agreement. Buyer would not purchase the Property from
Seller without such representations and warranties of Seller. Such
representations and warranties shall survive the Closing for only one (1) year
after the Closing Date, at which time such representations and warranties shall
terminate. No claim for a breach of any such representations and warranties
shall be actionable or payable, and Seller shall have no liability, if the
breach in question results from or is based on any fact or circumstance that was
known to Buyer prior to Closing or if Buyer fails to commence a legal action in
a proper court against Seller for breach of the specific representation and
warranty in question before the expiration of such period of one (1) year. As
used in this section 5.1, "current actual knowledge of Seller" means the actual
knowledge (not imputed knowledge or constructive knowledge) of the fact or
circumstance in question by Michael C. Gordon, Vice President of Seller, with no
duty, express or implied, to undertake independent inquiry or investigation to
ascertain any fact or circumstance or the absence thereof. Seller represents and
warrants to Buyer as of the date of this Agreement as follows:
(a) Seller is a corporation duly incorporated and organized and validly
existing and in good standing under the laws of the State of Delaware. Seller is
duly qualified to do business and is in good standing in the State of
California. Seller has full corporate power and authority to enter into this
Agreement and to perform this Agreement. The execution, delivery and performance
of this Agreement by Seller have been duly and validly authorized by all
necessary action on the part of Seller and all required consents and approvals
have been duly obtained. This Agreement is a legal, valid and binding obligation
of Seller, enforceable against Seller in accordance with its terms, subject to
the effect of applicable bankruptcy, insolvency, reorganization, arrangement,
moratorium or other similar laws affecting the rights of creditors generally.
(b) Seller has delivered an accurate and complete copy of the Sublease
to Buyer. The Sublease has not been amended or modified. No security deposit is
held by Seller under the Sublease. To the current actual knowledge of Seller,
neither Seller nor the tenant under the Sublease is materially in default in the
performance of any material covenant to be performed by
EXHIBIT O
the landlord or the tenant, respectively, under the Sublease and the tenant
under the Sublease has no material claims or offsets against Seller pursuant to
the Sublease.
(c) Seller is not a "foreign person" as defined in Section 1445 of the
Internal Revenue Code of 1986, as amended, and the Income Tax Regulations
thereunder.
(d) Except for Colliers International, Seller has not dealt with any
real estate broker or finder in connection with the sale of the Property to
Buyer or this Agreement.
(e) There is no litigation, arbitration or other legal proceeding
pending (as to which Seller has been served with process as required by law) or,
to the current actual knowledge of Seller, threatened against Seller that would,
if determined adversely to Seller, materially adversely affect the Property or
the sale of the Property pursuant to this Agreement.
(f) Seller is not a debtor in any bankruptcy case or insolvency
proceeding.
(g) The documents listed in Exhibits B, C and D are all of the material
Permits, Agreements, and Plans and Specifications, respectively, relating to the
Real Property.
(h) Seller has paid for all improvement work performed on behalf of
Seller on the Real Property and no mechanics' liens presently exist based on
such improvement work.
(i) To the current actual knowledge of Seller, the documents listed in
Exhibit E are all of the material Environmental Assessments relating to the
presence of hazardous substances on the Real Property.
(j) To the current actual knowledge of Seller, Seller has not received
any written notification from any governmental authority that the Real Property
is in violation of any applicable law, where such violation remains outstanding
and, if not corrected, would have a material adverse effect on the Real
Property.
5.2 Buyer. The representations and warranties of Buyer in this section
5.2 and in Buyer's Closing Certificate (as hereinafter defined) are a material
inducement for Seller to enter into this Agreement. Seller would not sell the
Property to Buyer without such representations and warranties of Buyer. Such
representations and warranties shall survive the Closing for only one (1) year
after the Closing Date, at which time such representations and warranties shall
terminate. Buyer represents and warrants to Seller as of the date of this
Agreement as follows:
(a) Buyer is a limited liability company duly organized and validly
existing under the laws of the State of Delaware. Buyer has a duly issued and
presently effective certificate of registration for a foreign limited liability
company to transact intrastate business in California from the Secretary of
State of California. Buyer has full power and authority to enter into this
Agreement and to perform this Agreement. The execution, delivery and performance
of this Agreement by Buyer have been duly and validly authorized by all
necessary action on the part of Buyer and all required consents and approvals
have been duly obtained. This Agreement is a legal, valid and binding obligation
of Buyer, enforceable against Buyer in accordance with its terms, subject to the
effect of applicable bankruptcy, insolvency, reorganization, arrangement,
moratorium or other similar laws affecting the rights of creditors generally.
EXHIBIT O
(b) Except for Colliers International, Buyer has not dealt with any
real estate broker or finder in connection with the purchase of the Property
from Seller or this Agreement.
ARTICLE 6
Covenants
6.1 Seller. Seller covenants and agrees with Buyer as follows:
(a) Seller shall use reasonable efforts, in good faith and with
diligence, to cause all of the representations and warranties made by Seller in
section 5.1 hereof to be true and correct on and as of the Closing Date. At the
Closing on the Closing Date, Seller shall execute and deliver to Buyer a
Seller's Closing Certificate ("Seller's Closing Certificate") in the form of
Exhibit I attached hereto, certifying to Buyer that all such representations and
warranties are true and correct on and as of the Closing Date, with only such
exceptions therein as are necessary to reflect facts or circumstances arising
between the date of this Agreement and the Closing Date which would make any
such representation or warranty untrue or incorrect on and as of the Closing
Date.
(b) Seller shall indemnify and defend Buyer against and hold Buyer
harmless from all claims, demands, liabilities, losses, damages, costs and
expenses, including reasonable attorneys' fees and disbursements, that may be
suffered or incurred by Buyer if any representation or warranty made by Seller
in section 5.1 hereof or in Seller's Closing Certificate was untrue or incorrect
in any material respect when made or that may be caused by any material breach
by Seller of any such representation or warranty. The foregoing indemnification
covenant shall survive the Closing for as long as Seller is liable for a breach
of any such representation or warranty.
(c) Seller shall use reasonable efforts, in good faith and with
diligence, to obtain an Estoppel Certificate (the "Sublease Estoppel
Certificate") substantially in the form of Exhibit J attached hereto executed by
the City and to deliver the Sublease Estoppel Certificate to Buyer before the
Closing Date.
(d) If the purchase and sale of the Property is completed in accordance
with this Agreement, Seller shall pay the commission due Colliers International
in accordance with the separate written agreement between Seller and such real
estate broker.
(e) From the date of this Agreement through the Closing Date, (i)
Seller shall not market the Property to others or enter into any other agreement
to sell the Property and (ii) Seller shall not execute any agreements (except
the agreements described in sections 7.1 and 7.2 hereof) that will affect the
Property after the Closing Date.
(f) From the date of this Agreement until the Closing Date, Seller
shall (i) maintain in force insurance policies with coverages and amounts
substantially the same in all material respects as the insurance policies
carried by Seller on the date of this Agreement, (ii) cooperate with Buyer in
reasonable ways, without incurring any significant expense, to obtain land use
approvals for the development of the Real Property by Buyer, (iii) comply in all
material respects
EXHIBIT O
with laws or governmental regulations applicable to Seller relating to the use
of the Real Property in substantially the same manner as Seller complied with
such laws or governmental regulations prior to the date of this Agreement and
maintain the Real Property in substantially the same manner as Seller maintained
the Real Property prior to the date of this Agreement, (iv) not transfer or
assign the Permits, the Agreements, the Plans and Specifications or the
Sublease, or any interest therein, or further encumber the Property in any way,
(v) perform all material obligations of Seller, and comply in material respects
with all requirements of Seller, under the Permits, the Agreements and the
Sublease, and (vi) give notice to Buyer reasonably promptly after Seller
discovers any fact or circumstance that would make any representation and
warranty made by Seller in section 5.1 hereof untrue or incorrect in any
material respect or that would cause Seller to materially default in the
performance of any material covenant to be performed by Seller under this
Agreement.
(g) Seller shall use reasonable efforts, in good faith and with
diligence, to obtain an Estoppel Certificate (the "Development Agreement
Estoppel Certificate") substantially in the form of Exhibit K attached hereto
executed by the City and to deliver the Development Agreement Estoppel
Certificate to Buyer on or before the Closing Date.
(h) On the Closing Date, Seller shall pay to the City the amount of two
million dollars ($2,000,000) (the "$2,000,000 Payment") in accordance with
Section 1.3 of the Amendment to Development Agreement.
(i) On the Closing Date, Seller shall donate to the City the amount of
one million three hundred thousand dollars ($1,300,000) (the "$1,300,000
Donation") in accordance with Section 1.4 of the Amendment to Development
Agreement.
6.2 Buyer. Buyer covenants and agrees with Seller as follows:
(a) Buyer shall use reasonable efforts, in good faith and with
diligence, to cause all of the representations and warranties made by Buyer in
section 5.2 hereof to be true and correct on and as of the Closing Date. At the
Closing on the Closing Date, Buyer shall execute and deliver to Seller a Buyer's
Closing Certificate ("Buyer's Closing Certificate") in the form of Exhibit L
attached hereto, certifying to Seller that all such representations and
warranties are true and correct on and as of the Closing Date, with only such
exceptions therein as are necessary to reflect facts or circumstances arising
between the date of this Agreement and the Closing Date which would make any
such representation or warranty untrue or incorrect on and as of the Closing
Date.
(b) Buyer shall use reasonable efforts, in good faith and with
diligence, to obtain the approvals from the City and the Redevelopment Agency
(as hereinafter defined) described in sections 7.1(a), 7.1(b), 7.2(a) and 7.2(b)
hereof as soon as reasonably practicable but in any event by the date set forth
in sections 7.1(a), 7.1(b), 7.2(a) and 7.2(b) hereof.
(c) If the City requires payment to the City of the sum of two hundred
fifty thousand dollars ($250,000) (the "Mahon Creek Contribution") prior to the
Closing Date pursuant to the Development Agreement (as hereinafter defined) and
Seller pays the Mahon Creek Contribution to the City and furnishes reasonable
written evidence confirming such payment to Buyer before
EXHIBIT O
the Closing Date, then, on the Closing Date, Buyer shall reimburse Seller for
the Mahon Creek Contribution.
(d) If the Closing Date does not occur on or before October 31, 2000,
then Buyer shall pay to Seller on the Closing Date or the date on which this
Agreement terminates, whichever occurs first, the costs (the "Carrying Costs")
incurred by Seller for property taxes levied against the Real Property and
interest, rent and other charges (excluding principal) payable to Lease Plan
North America, Inc. or ABN AMRO Bank, N.V. in accordance with the "synthetic
lease" financing of the Real Property disclosed in the Preliminary Report during
the period from and including November 1, 2000, to but excluding the Closing
Date or the date on which this Agreement terminates, whichever occurs first.
Seller shall furnish a reasonable written accounting showing in reasonable
detail the calculation of the Carrying Costs to Buyer.
(e) Buyer shall indemnify and defend Seller against and hold Seller
harmless from all claims, demands, liabilities, losses, damages, costs and
expenses, including reasonable attorneys' fees and disbursements, that may be
suffered or incurred by Seller if any representation or warranty made by Buyer
in section 5.2 hereof or in Buyer's Closing Certificate was untrue or incorrect
in any material respect when made or that may be caused by any material breach
by Buyer of any such representation or warranty.
6.3 Eminent Domain. If, before the Closing Date, proceedings are
commenced for the taking by exercise of the power of eminent domain of all or a
material part of the Property which, as reasonably determined by Buyer, would
render the Property unsuitable for Buyer's intended use, Buyer shall have the
right, by giving notice to Seller within thirty (30) days after Seller gives
notice of the commencement of such proceedings to Buyer, to terminate this
Agreement, in which event this Agreement shall terminate. For the purposes of
this Agreement, a taking is "material" if it would prevent construction of one
or more of the buildings planned for the Real Property. If, before the Closing
Date, proceedings are commenced for the taking by exercise of the power of
eminent domain of less than such a material part of the Property, or if Buyer
has the right to terminate this Agreement pursuant to the preceding sentence but
Buyer does not exercise such right, then this Agreement shall remain in full
force and effect and, on the Closing Date, the condemnation award (or, if not
theretofore received, the right to receive such award) payable on account of the
taking shall be transferred to Buyer. Seller shall give notice to Buyer
reasonably promptly after Seller's receiving notice of the commencement of any
proceedings for the taking by exercise of the power of eminent domain of all or
any part of the Property. If necessary, the Closing Date shall be postponed
until Seller has given any notice to Buyer required by this section 6.3 and the
period of thirty (30) days described in this section 6.3 has expired.
ARTICLE 7
Conditions Precedent
7.1 Seller. The obligations of Seller under this Agreement are subject to
satisfaction of all of the conditions set forth in this section 7.1. Seller may
waive any or all of such conditions in whole or in part but any such waiver
shall be effective only if made in writing.
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After the Closing, any such condition that has not been satisfied shall be
treated as having been waived in writing. No such waiver shall constitute a
waiver by Seller of any of its rights or remedies if Buyer defaults in the
performance of any covenant or agreement to be performed by Buyer under this
Agreement or if Buyer breaches any representation or warranty made by Buyer in
section 5.2 hereof or in Buyer's Closing Certificate. If any condition set forth
in this section 7.1 is not fully satisfied or waived in writing by Seller, this
Agreement shall terminate, but without releasing Buyer from liability if Buyer
defaults in the performance of any such covenant or agreement to be performed by
Buyer or if Buyer breaches any such representation or warranty made by Buyer
before such termination.
(a) On or before November 20, 2000, the City shall have finally adopted
an ordinance approving the Amendment to Development Agreement (the "Amendment to
Development Agreement"), in all material respects substantially in the form of
Exhibit M attached hereto, which amends the Development Agreement (the
"Development Agreement") dated February 17, 1998, among Village Builders, L.P.,
a California limited partnership, the City and Seller, and recorded April 9,
1998, as Document No. 1998-023245 the Official Records of Marin County,
California.
(b) On or before November 20, 2000, the San Rafael Redevelopment
Agency, a public body, corporate and politic (the "Redevelopment Agency"), shall
have finally adopted a resolution approving the Consent and Agreement (the
"Consent and Agreement"), in all material respects substantially in the form of
Exhibit N attached hereto, which amends the Owner Participation, Disposition and
Development Agreement dated May 18, 1998, between the Redevelopment Agency and
Seller, as amended by the First Amendment to Owner Participation, Disposition
and Development Agreement dated September 7, 1999, between the Redevelopment
Agency and Seller.
(c) On or before December 21, 2000, the ordinance adopted by the City
approving the Amendment to Development Agreement shall have become effective in
accordance with California Government Code Section 36937.
(d) On or before the last day of the Property Approval Period, Seller
shall have received written consents or approvals from PG&E for the assignment
by Seller and the assumption by Buyer (or a permitted assignee as described in
section 9.9 hereof) of the Permits and the Agreements to which PG&E is a party,
but only to the extent that such Permits or such Agreements expressly require
such consent or approval.
(e) On the Closing Date, Buyer shall not be materially in default in
the performance of any material covenant to be performed by Buyer under this
Agreement.
(f) On the Closing Date, all representations and warranties made by
Buyer in section 5.2 hereof shall be true and correct in all material respects
as if made on and as of the Closing Date and Seller shall have received Buyer's
Closing Certificate, executed by Buyer, in which Buyer certifies to Seller that
all representations and warranties made by Buyer in section 5.2 hereof are true
and correct on and as of the Closing Date, without material adverse exceptions.
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7.2 Buyer. The obligations of Buyer under this Agreement are subject to
satisfaction of all of the conditions set forth in this section 7.2. Buyer may
waive any or all of such conditions in whole or in part but any such waiver
shall be effective only if made in writing. After the Closing, any such
condition that has not been satisfied shall be treated as having been waived in
writing. No such waiver shall constitute a waiver by Buyer of any of its rights
or remedies if Seller defaults in the performance of any covenant or agreement
to be performed by Seller under this Agreement or if Seller breaches any
representation or warranty made by Seller in section 5.1 hereof or in Seller's
Closing Certificate. If any condition set forth in this section 7.2 is not fully
satisfied or waived in writing by Buyer, this Agreement shall terminate, but
without releasing Seller from liability if Seller defaults in the performance of
any such covenant or agreement to be performed by Seller or if Seller breaches
any such representation or warranty made by Seller before such termination.
(a) On or before November 20, 2000, the City shall have finally adopted
an ordinance approving the Amendment to Development Agreement.
(b) On or before November 20, 2000, the Redevelopment Agency shall have
finally adopted a resolution approving the Consent and Agreement.
(c) On or before December 21, 2000, the ordinance adopted by the City
approving the Amendment to Development Agreement shall have become effective in
accordance with California Government Code Section 36937.
(d) On or before the last day of the Property Approval Period, Buyer
shall have received written consents or approvals from PG&E for the assignment
by Seller and the assumption by Buyer (or a permitted assignee as described in
section 9.9 hereof) of the Permits and the Agreements to which PG&E is a party,
but only to the extent that such Permits or such Agreements expressly require
such consent or approval.
(e) On the Closing Date, Seller shall not be materially in default in
the performance of any material covenant to be performed by Seller under this
Agreement.
(f) On the Closing Date, all representations and warranties made by
Seller in section 5.1 hereof shall be true and correct in all material respects
as if made on and as of the Closing Date and Buyer shall have received Seller's
Closing Certificate, executed by Seller, in which Seller certifies to Buyer that
all representations and warranties made by Seller in section 5.1 hereof are true
and correct on and as of the Closing Date, without material adverse exceptions.
(g) On the Closing Date, the Title Company shall be prepared to issue
to Buyer an American Land Title Association Owner's Policy of title insurance,
with liability equal to the total purchase price for the Property, insuring
Buyer that fee title to the Real Property is vested in Buyer subject only to the
Permitted Exceptions.
(h) On the Closing Date, Buyer shall have received the Sublease
Estoppel Certificate substantially in the form of Exhibit J attached hereto,
without material adverse exceptions, executed by the City.
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(i) On the Closing Date, Buyer shall have received the Development
Agreement Estoppel Certificate substantially in the form of Exhibit K attached
hereto, without material adverse exceptions, executed by the City.
(j) On the Closing Date, Seller shall have delivered the $2,000,000
Payment to the City.
(k) On the Closing Date, Seller shall have delivered the $1,300,000
Donation to the City.
ARTICLE 8
Closing
8.1 Procedure. Seller and Buyer shall cause the following to occur at
the Closing on the Closing Date:
(a) The Grant Deed for the Real Property, duly executed and
acknowledged by Seller, and the PG&E Assignment, duly executed and acknowledged
by Seller and Buyer, shall be recorded in the Official Records of Marin County,
California.
(b) Seller shall date as of the Closing Date, execute and deliver to
Buyer (i) the PG&E Assignment, (ii) the General Assignment, (iii) Seller's
Closing Certificate, (iv) a Certificate of Nonforeign Status in the form of
Exhibit O attached hereto, and (v) a California Form 590-RE Withholding
Exemption Certificate for Real Estate Sales.
(c) Buyer shall date as of the Closing Date, execute and deliver to
Seller (i) the PG&E Assignment, (ii) the General Assignment, and (iii) Buyer's
Closing Certificate.
(d) Seller and Buyer each shall execute the Amendment to Development
Agreement and deliver the Amendment to Development Agreement to the City.
(e) Seller and Buyer each shall execute the Consent and Agreement and
deliver the Consent and Agreement to the Redevelopment Agency.
(f) Buyer shall pay to Seller in cash in immediately available funds
(i) the purchase price for the Property in accordance with section 2.1 hereof,
(ii) if applicable, the Mahon Creek Contribution, and (iii) if applicable, the
Carrying Costs.
(g) The Title Company shall issue to Buyer the title insurance policy
described in section 7.2 hereof.
(h) Seller shall deliver to the City (i) the $2,000,000 Payment and
(ii) the $1,300,000 Donation.
8.2 Possession. Subject to the Sublease, Seller shall transfer
possession of the Real Property to Buyer on the Closing Date. Seller shall, on
the Closing Date, deliver to Buyer originals (or copies if Seller does not have
originals) the Sublease, the Permits, the Agreements and the Plans and
Specifications in the possession of Seller and copies of any other documents
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relating to the Real Property in the possession of Seller requested by Buyer. On
the Closing Date, Seller shall send a letter to the City, as the tenant under
the Sublease, notifying the City that the Real Property has been sold to Buyer
and directing the City to pay future rent and other charges under the Sublease
to Buyer at the address to be furnished by Buyer.
8.3 Closing Costs. Seller shall pay the Marin County documentary
transfer tax in respect of the Grant Deed and one-half of the City of San Rafael
conveyance tax in respect of the Grant Deed. Buyer shall pay one-half of the
City of San Rafael conveyance tax in respect of the Grant Deed, the premium for
the title insurance policy described in section 7.2 hereof, the escrow fee
charged by the Title Company, and the recording fee for the Grant Deed. When the
Grant Deed is submitted to the Recorder for recordation, Seller shall, in
accordance with California Revenue and Taxation Code Section 11932, request that
the amount of the documentary transfer tax due be shown on a separate paper
which shall be affixed to the Grant Deed by the Recorder after the permanent
record is made and before the Grant Deed is returned to Buyer. On the Closing
Date, Buyer shall reimburse Seller for the cost of the current ALTA survey of
the Real Property furnished by Seller to Buyer pursuant to section 1.2 hereof.
8.4 Prorations. At the Closing on the Closing Date, the current rent
under the Sublease and other revenues, the current installment of real property
taxes and assessments levied against the Real Property, current utilities, and
other current operating and maintenance expenses of the Real Property shall be
prorated between Seller and Buyer as of the Closing Date on the basis of the
actual number of days in the month.
ARTICLE 9
General
9.1 Notices. All notices and other communications under this Agreement
shall be properly given only if made in writing and mailed by certified mail,
return receipt requested, postage prepaid, or delivered by hand (including
messenger or recognized delivery, courier or air express service), or
transmitted by facsimile (provided the facsimile is sent during normal business
hours on business days and confirmation of good and complete delivery is
produced by the sending facsimile machine) to the party at the address set forth
in this section 9.1 or such other address as such party may designate by notice
to the other party. Such notices and other communications shall be effective on
the date of receipt (evidenced by the certified mail receipt) if mailed, or on
the date of such hand delivery if hand delivered, or on the date of delivery
(confirmed by the sending facsimile machine) if transmitted by facsimile. If any
such notice or other communication is not received or cannot be delivered
because the receiving party changed its address and failed to give notice of
such change to the sending party or due to a refusal to accept by the receiving
party, such notice or other communication shall be effective on the date
delivery is attempted. Any notice or other communication under this Agreement
may be given on behalf of a party by the attorney for such party.
(a) The address of Seller is Fair, Isaac and Company, Inc., 200 Smith
Ranch Road, San Rafael, California 94903-1996, attention: Peter L. McCorkell,
Esq., Executive Vice President and General Counsel, facsimile (415) 492-5688,
with a copy given simultaneously to
EXHIBIT O
Pillsbury Madison & Sutro LLP, 50 Fremont Street, San Francisco, California
94105, attention: Frederick D. Minnes, Esq., facsimile (415) 983-1200.
(b) The address of Buyer is San Rafael Corporate Center, LLC, c/o
Equity Office Properties Management Corp., Two North Riverside Plaza, Chicago,
Illinois 60606, attention: Stanley M. Stevens, Vice President, facsimile (312)
559-5021, with a copy given simultaneously to The Wilson Group, Inc., 120 Howard
Street, San Francisco, California 94105, attention: Thomas P. Sullivan,
President, facsimile (415) 543-9437, with a further copy given simultaneously to
DR Young Associates, 57 Inverness Drive, San Rafael, California 94901,
attention: Donald R. Young, facsimile (415) 456-5753, and with a further copy
given simultaneously to Farella Braun & Martel, 235 Montgomery Street, 30th
Floor, San Francisco, California 94104, attention: Craig P. Wood, Esq.,
facsimile (415) 954-4480.
9.2 Attorneys' Fees. If there is any legal action or proceeding between
Seller and Buyer arising from or based on this Agreement, the unsuccessful party
to such action or proceeding shall pay to the prevailing party all costs and
expenses, including reasonable attorneys' fees, incurred by such prevailing
party in such action or proceeding and in any appeal in connection therewith. If
such prevailing party recovers a judgment in any such action, proceeding or
appeal, such costs, expenses and attorneys' fees shall be included in and as a
part of such judgment.
9.3 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
9.4 Construction. Seller and Buyer acknowledge that each party and its
counsel have reviewed and revised this Agreement and that any rule of
construction to the effect that ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any document executed and delivered by either party in connection with the
transactions contemplated by this Agreement. The captions in this Agreement are
for convenience of reference only and shall not be used to interpret this
Agreement.
9.5 Terms Generally. The defined terms in this Agreement shall apply
equally to both the singular and the plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The term "person" includes individuals, corporations,
partnerships, trusts, other legal entities, organizations and associations, and
any government or governmental agency or authority. The words "include,"
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation." The words "approval," "consent" and "notice" shall be deemed to be
preceded by the word "written." As used in this Agreement, "business day" shall
mean a day on which banks and government offices in California are open for
business.
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9.6 Further Assurances. From and after the date of this Agreement,
Seller and Buyer agree to do such things, perform such acts, and make, execute,
acknowledge and deliver such documents as may be reasonably necessary or proper
and usual to complete the transactions contemplated by this Agreement and to
carry out the purpose of this Agreement in accordance with this Agreement.
9.7 Partial Invalidity and Waiver. If any provision of this Agreement
is determined by a proper court to be invalid, illegal or unenforceable, such
invalidity, illegality or unenforceability shall not affect the other provisions
of this Agreement and this Agreement shall remain in full force and effect
without such invalid, illegal or unenforceable provision. No waiver of any
provision of this Agreement or any breach of this Agreement shall be effective
unless such waiver is in writing and signed by the waiving party and any such
waiver shall not be deemed a waiver of any other provision of this Agreement or
any other or subsequent breach of this Agreement.
9.8 Waiver of Jury Trial. Seller and Buyer each hereby expressly,
irrevocably, fully and forever releases, waives and relinquishes any and all
right to trial by jury in any claim, demand, action, suit, proceeding or cause
of action in which Seller and Buyer are parties, which in any way (directly or
indirectly) arises out of, results from or relates to any of the following, in
each case whether now existing or hereafter arising and whether based on
contract or tort or any other legal basis: This Agreement; any document executed
or delivered pursuant to this Agreement; any past, present or future act,
omission, conduct or activity with respect to this Agreement; any transaction,
event or occurrence contemplated by this Agreement; the performance of any
obligation or the exercise of any right under this Agreement; or the enforcement
of this Agreement. Seller and Buyer each agrees that this Agreement constitutes
written consent that trial by jury shall be waived in any such claim, demand,
action, suit, proceeding or other cause of action pursuant to California Code of
Civil Procedure Section 631 and agrees that Seller and Buyer each shall have the
right at any time to file this Agreement with the clerk or judge of any court in
which any such claim, demand, action, suit, proceeding or other cause of action
may be pending as statutory written consent to waiver of trial by jury in
accordance with California Code of Civil Procedure Section 631.
9.9 Miscellaneous. The Exhibits attached to this Agreement are made a
part of this Agreement. Neither Seller nor Buyer shall make any public
announcement of this Agreement or the transactions contemplated by this
Agreement without the prior consent of the other, unless any such announcement
is reasonably necessary to comply with applicable law. Buyer shall not assign or
transfer this Agreement, or any interest in or part of this Agreement, without
the prior consent of Seller. Notwithstanding the foregoing, Buyer may assign
this Agreement, without Seller's consent, to any affiliate of Buyer. An
"affiliate" shall mean any entity controlling, controlled by, or under common
control with the applicable party or person. Furthermore, Seller hereby consents
to the following assignments of this Agreement: (a) assignment by Buyer to EOP
Operating Limited Partnership, a Delaware limited partnership ("EOP"); (b)
assignment by Buyer or EOP to an entity ( "Devco") that is entirely owned by an
affiliate of EOP and an entity more than fifty percent (50%) of which is owned
by William Wilson III and other individuals who were formerly officers and
employees of Cornerstone Properties Inc. or any of its affiliates or
subsidiaries; and (c) assignment by Devco to an entity entirely owned by Devco
alone or by Devco and one of its members or affiliates of such members or by
just one member of Devco and that member's affiliates. The foregoing approval of
certain assignments shall include transfer of the interests in the identified
entities. Buyer shall give notice of any such assignment, with a full
description of the assignee and a copy of the assignment executed by Buyer and
the assignee, to Seller at least ten (10) business days before the Closing Date.
No such assignment or transfer shall release Buyer from any obligation or
liability under this Agreement. Notwithstanding the foregoing, if the assignee
executes an assumption agreement in favor of Seller, in form and
EXHIBIT O
substance reasonably satisfactory in all respects to Seller, in which the
assignee assumes all obligations of Buyer under this Agreement, then the
assignor shall be released from liability for performance of the obligations
assumed by the assignee. Subject to the foregoing, this Agreement shall benefit
and bind Seller and Buyer and their respective successors and assigns. Time is
of the essence of this Agreement. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which shall
constitute one and the same Agreement. This Agreement may not be amended or
modified except by a written agreement signed by Seller and Buyer. This
Agreement constitutes the entire and integrated agreement between Seller and
Buyer relating to the purchase and sale of the Property and supersedes all prior
agreements, understandings, offers and negotiations, oral or written, with
respect to the sale of the Property.
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of
the date first hereinabove written.
FAIR, ISAAC AND COMPANY, INC., a Delaware
corporation
By
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Henk J. Evenhuis
Chief Financial Officer
SAN RAFAEL CORPORATE CENTER, LLC, a
Delaware limited liability company
By EOP OPERATING LIMITED PARTNERSHIP,
a Delaware limited partnership,
its sole Member
By EQUITY OFFICE PROPERTIES TRUST,
a Maryland real estate investment
trust, its sole General Partner
By
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Title
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