SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): FEBRUARY 17, 2000
INPRISE CORPORATION
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(Exact Name of Registrant as Specified in Charter)
DELAWARE 0-16096 94-2895440
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
100 ENTERPRISE WAY, SCOTTS VALLEY, CALIFORNIA 95066-3249
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(Address of principal executive offices) (zip code)
Registrant's telephone number, including area code: (831) 431-1000
NOT APPLICABLE
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(Former Name or Former Address, if Changed Since Last Report)
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On February 18, 2000, Inprise Corporation ("Inprise") announced that
it had entered into an agreement to sell its corporate headquarters campus
in Scotts Valley, California (the "Campus") to ScanlanKemperBard Companies
("SKB") for $47 million in cash. The Campus spans approximately 25 acres
of land and includes the buildings which comprise Inprise's corporate
headquarters (including furniture and fixtures not used by Inprise) and an
adjacent, unimproved land parcel consisting of approximately 6.7 acres.
The transaction is currently scheduled to close in mid-March 2000.
As part of its agreement with SKB, Inprise will enter into a ten year
lease, leasing back approximately 142,000 square feet of office space and
approximately 19,000 square feet of storage space, out of a total of
approximately 365,000 rentable square feet (approximately 44% of the
Campus) in Inprise's corporate headquarters building. Inprise will have
the right to sublease its portion of the Campus upon the earlier to occur
of (i) the corporate headquarters building becoming 95% leased and (ii)
the second anniversary of the signing of the lease agreement. In addition,
Inprise has agreed to set aside a reserve of $2.5 million to pay for
certain costs incurred in connection with making the Campus suitable for
multiple tenants. This reserve will only be used after SKB has spent $2.5
million of its own funds for such purposes.
As part of the agreement with SKB, Inprise also acquired the option to
require SKB to purchase for $17 million in cash the real property that
Inprise owns in Scotts Valley, California, at 1700-1800 Greenhills Road.
This option is for one year following the closing of the sale of the Campus
and is subject to certain terms and conditions.
The above summary does not purport to be complete and is qualified in
its entirety by reference to the complete text of the Agreement of Purchase
and Sale and Joint Escrow Instructions, dated as of December 30, 1999, by
and between Inprise and SKB and amendments thereto, copies of which are
filed hereto as Exhibits 99.1 through 99.7 and are incorporated herein by
reference.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS.
(c) Exhibits
99.1 Agreement of Purchase and Sale and Joint Escrow
Instructions, dated December 30, 1999, by and between
Inprise Corporation and ScanlanKemperBard Companies.
99.2 First Amendment to Agreement of Purchase and Sale and
Joint Escrow Instructions, dated January 27, 2000, by and
between Inprise Corporation and ScanlanKemperBard
Companies.
99.3 Second Amendment to Agreement of Purchase and Sale and
Joint Escrow Instructions, dated February 8, 2000, by and
between Inprise Corporation and ScanlanKemperBard
Companies.
99.4 Third Amendment to Agreement of Purchase and Sale and
Joint Escrow Instructions, dated February 11, 2000, by and
between Inprise Corporation and ScanlanKemperBard
Companies.
99.5 Fourth Amendment to Agreement of Purchase and Sale and
Joint Escrow Instructions, dated February 15, 2000, by and
between Inprise Corporation and ScanlanKemperBard
Companies.
99.6 Fifth Amendment to Agreement of Purchase and Sale and
Joint Escrow Instructions, dated February 16, 2000, by and
between Inprise Corporation and ScanlanKemperBard
Companies.
99.7 Sixth Amendment to Agreement of Purchase and Sale and
Joint Escrow Instructions, dated February 17, 2000, by and
between Inprise Corporation and ScanlanKemperBard
Companies.
99.8 Press Release of Inprise Corporation issued on
February 18, 2000.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
By: /s/ JoAnne M. Butler
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Name: JoAnne M. Butler
Title: Vice President, General
Counsel and Secretary
Date: March 2, 2000
EXHIBIT INDEX
Exhibit No. Description
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99.1 Agreement of Purchase and Sale and Joint Escrow
Instructions, dated December 30, 1999, by and between
Inprise Corporation and ScanlanKemperBard Companies.
99.2 First Amendment to Agreement of Purchase and Sale and Joint
Escrow Instructions, dated January 27, 2000, by and between
Inprise Corporation and ScanlanKemperBard Companies.
99.3 Second Amendment to Agreement of Purchase and Sale and Joint
Escrow Instructions, dated February 8, 2000, by and between
Inprise Corporation and ScanlanKemperBard Companies.
99.4 Third Amendment to Agreement of Purchase and Sale and Joint
Escrow Instructions, dated February 11, 2000, by and between
Inprise Corporation and ScanlanKemperBard Companies.
99.5 Fourth Amendment to Agreement of Purchase and Sale and Joint
Escrow Instructions, dated February 15, 2000, by and between
Inprise Corporation and ScanlanKemperBard Companies.
99.6 Fifth Amendment to Agreement of Purchase and Sale and Joint
Escrow Instructions, dated February 16, 2000, by and between
Inprise Corporation and ScanlanKemperBard Companies.
99.7 Sixth Amendment to Agreement of Purchase and Sale and Joint
Escrow Instructions, dated February 17, 2000, by and between
Inprise Corporation and ScanlanKemperBard Companies.
99.8 Press Release of Inprise Corporation issued on February 18,
2000.
Exhibit 99.1
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
THIS AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS
(this "Agreement") is made as of the 30th day of December, 1999,
by and between Inprise Corporation, a Delaware corporation ("Seller") and
ScanlanKemperBard Companies, an Oregon corporation ("Buyer").
RECITALS
A. Seller is the owner of an office complex consisting of a 3-story
office building containing approximately 512,791 square feet of office
space and approximately 6.77 acres of adjacent unimproved land at 100
Enterprise Way, Scotts Valley, California;
B. Buyer desires to purchase and Seller desires to sell the above
property for the purchase price and on the terms and conditions herein set
forth.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and conditions contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller and Buyer agree as follows:
1. Sale.
1.1 Seller agrees to sell and convey to Buyer, and Buyer agrees
to purchase from Seller, on the terms and conditions set forth herein, the
following:
1.1.1 The real property described on the attached
EXHIBIT "A" (the "Land"), together with all buildings, improvements and
fixtures thereon (collectively, the "Improvements") and all rights,
privileges and easements appurtenant to the Land and the Improvements,
including without limitation all of Seller's right, title and interest in
and to all minerals, oil, gas and other hydrocarbon substances on and under
the Land, as well as all development rights, air rights, water, water
rights and water stock relating to the Land and Improvements (collectively,
the "Real Property");
1.1.2 Seller's right, title and interest in the
furniture, equipment, supplies, inventory and other personal property
presently located on or used in connection with the ownership and operation
of the Real Property, excluding, however, only such personal property as
is located as of the date of this Agreement in the Leaseback Premises (as
defined in Paragraph 4.6, below) and such personal property, furniture,
equipment, supplies and inventory of any tenants of Seller occupying or
using any portion of the Improvements (the "Personal Property"). On or
before January 10, 2000, Seller shall deliver to Buyer a signed written
inventory of all Personal Property included in this purchase and sale.
Buyer shall notify Seller in writing of any objections to the Inventory
prior to the Contingency Deadline (as hereinafter defined) and Buyer and
Seller shall attempt in good faith to resolve any such objections prior to
the Contingency Deadline. Following its approval of the inventory, Buyer
shall sign a copy of the inventory and deliver the signed copy to Seller.
If Buyer delivers a Notice to Proceed, Buyer shall be deemed to have
approved the latest inventory delivered to Buyer prior to sending the
Notice to Proceed.
1.1.3 Seller's right, title and interest as landlord in
all leases, rental agreements and other occupancy agreements for the Real
Property, and any agreements ancillary thereto such as lease guaranties and
work letter agreements (collectively, "Leases"). On or before January 7,
2000, Seller shall deliver to Buyer a rent roll for the Real Property
certified by Seller to Seller's actual knowledge, to be accurate and
complete ("Rent Roll"), together with copies of all Leases. As used in
this Agreement, the phrase "to Seller's actual knowledge" means to the
actual knowledge of any one or more of Hobey Birmingham, Joanne Butler and
Sam Farb. The Rent Roll shall include as to each tenant the tenant's name,
the location of the tenant's premises, the base rent, basis of base rent
escalations, additional rent (components and percentage) to the extent
applicable, outstanding concessions, lease commencement date, lease
expiration date, renewal options (number and length), and a description of
any purchase or early termination rights.
1.1.4 Seller's right, title and interest, to the extent
transferable, in those service, maintenance and construction contracts
relating to the Real Property ("Contracts") that Buyer elects, as
hereinafter provided, to continue following the Close of Escrow. On or
before January 7, 2000, Seller shall deliver to Buyer a list of all
Contracts together with complete copies of all Contracts (including any
modifications or amendments thereto). Buyer shall notify Seller in
writing, within ten (10) days following Buyer's receipt of both the list
and copies of Contracts of those Contracts which Buyer elects to continue
and assume (with regard to obligations which accrue after the Close of
Escrow) following the Close of Escrow (collectively, "Approved Contracts").
Within five (5) days following receipt of Buyer's notice of Approved
Contracts, Seller shall notify Buyer in writing of (i) any Contracts other
than Approved Contracts which Seller believes cannot be terminated on
thirty (30) days' or less notice and (ii) any Contracts other than Approved
Contracts which Seller believes are not terminable without liability or
cost to Seller (collectively, "Non-Terminating Contracts"). Seller shall,
on or before the Close of Escrow, take such action as shall be necessary to
terminate effective no later than thirty (30) days following the Close of
Escrow all Contracts other than Approved Contracts and Non-Terminating
Contracts, except to the extent that Seller, at its sole cost and expense,
wishes to continue such Contracts following the Close of Escrow with
respect to the Leaseback Premises only and such continuation of Contracts
does not violate any term of Seller's Lease (as defined in Paragraph 4.6,
below); and
1.1.5 Seller's right, title and interest, without
representation or warranty as to accuracy or completeness, and to the
extent transferable, in all guarantees, warranties, surveys, engineering
studies and reports (including, without limitation, soils, environmental,
geotechnical and structural studies and reports), permits (other than such
permits as are required by Seller in connection with the operation of its
business on the Real Property under the Lease), licenses, certificates,
franchises, building plans and specifications and building name relating to
the Real Property (collectively, the "Documents"). On or before January 7,
2000, Seller shall deliver to Buyer a list of all Documents together with
complete copies of all Documents.
The Real Property, the Personal Property, the Leases, the Contracts and the
Documents are hereinafter collectively referred to as the "Property."
2. Purchase Price.
2.1 The purchase price for the Property is the sum of Forty-
Seven Million and No/100 Dollars ($47,000,000.00) (the "Purchase Price").
Subject to prorations and adjustments as hereinafter set forth, the
Purchase Price shall be paid by Buyer to Seller as follows:
2.1.1 A cashier's check payable to Escrow Holder (as
such term is defined in Paragraph 10.1) in the sum of Five Hundred Thousand
Dollars ($500,000.00) shall be delivered to Seller by Buyer concurrently
with Buyer's delivery to Seller of an executed counterpart of this
Agreement. Seller shall deliver Buyer's cashier's check to Escrow Holder
concurrently with the Opening of Escrow (as such term is defined in
Paragraph 11.1). In lieu of depositing such amount by cashier's check,
Buyer may wire transfer such amount into Escrow within two (2) business
days following the Opening of Escrow. Escrow Holder shall place the Five
Hundred Thousand Dollars ($500,000) deposit, together with such other sums
deposited into Escrow by Buyer, into an interest-bearing account for the
benefit of Buyer. The Five Hundred Thousand Dollar ($500,000) deposit,
together with accrued interest thereon, is hereinafter referred to as the
"Initial Deposit."
2.1.2 If Buyer shall deliver to Seller a Notice to
Proceed, then within two (2) business days after the date Buyer delivers
the Notice to Proceed, Buyer shall wire transfer such additional amount as
is necessary ("Additional Deposit") to bring the total funds on deposit in
Escrow (as defined in Paragraph 10.1, below) to One Million Dollars
($1,000,000.00). The Initial Deposit and the Additional Deposit, together
with accrued interest thereon, is hereinafter referred to as the
"Deposit"). Upon and after Buyer's delivery to Seller of a Notice to
Proceed, if any, the Deposit, or so much thereof as shall have been
deposited by Buyer into Escrow, shall become nonrefundable to Buyer except
in the event of (i) failure of Escrow to close due to a default of Seller
or (ii) as otherwise expressly provided in this Agreement. Notwithstanding
anything to the contrary in this Agreement, if Buyer does not deliver the
Initial Deposit or the Additional Deposit within the respective periods
required therefor pursuant to Paragraph 2.1.1 and this Paragraph 2.1.2,
Seller may at any time thereafter, upon written notice to Buyer, terminate
this Agreement and, thereupon, neither party shall have any further
obligation to the other, except for such obligations which, pursuant to the
express terms of this Agreement, survive termination of this Agreement.
2.1.3 The balance of the Purchase Price shall be wire
transferred by Buyer into escrow on or before the Closing Date (as such
term is defined in Paragraph 10.3).
2.2 On any occasions when Escrow Holder is required to pay funds
under this Agreement to Buyer or Seller, it shall transmit such funds by
check, delivered by messenger, overnight express mail or, if instructed by
the party entitled to the funds, by federal wire transfer.
3. Title.
3.1 At the Close of Escrow (as such term is defined in
Paragraph 10.2 hereof), Seller shall deliver to Buyer a grant deed (the
"Grant Deed") conveying fee simple title to the Real Property. The Grant
Deed shall be prepared by Seller prior to the Contingency Deadline and
shall be reasonably satisfactory to Buyer. Subject to Buyer's approval in
accordance with the provisions of Paragraph 4.2 hereof, Buyer agrees to
accept title to the Real Property subject to the Permitted Exceptions (as
defined in Paragraph 4.2(c), below).
3.2 At the Close of Escrow, Escrow Holder shall cause Chicago
Title Company, San Jose, California (the "Title Company") to deliver to
Buyer an ALTA extended coverage owner's policy of title insurance insuring
fee title to the Real Property in Buyer with liability equal to the
Purchase Price ("Title Policy"). Buyer shall obtain, at its sole cost and
expense, any survey of the Real Property that may be required for the
issuance of an ALTA extended coverage owner's policy of title insurance
("ALTA Survey"). Buyer and Seller shall each pay fifty percent (50%) of
the cost of issuing to Buyer a CLTA standard coverage owner's policy of
title insurance insuring fee title to the Real Property in Buyer with
liability equal to the Purchase Price. Buyer shall pay one hundred percent
(100%) of any additional cost of an ALTA extended coverage owner's policy
and the cost of any endorsements requested by Buyer, except for any
endorsements offered by Seller to cure title objections of Buyer (which
endorsements shall be paid for by Seller).
3.3 At the Close of Escrow, Seller shall transfer its right,
title and interest to the Personal Property pursuant to a bill of sale (the
"Bill of Sale") in a form to be prepared by Seller prior to the Contingency
Deadline and which shall be reasonably satisfactory to Buyer, and Seller
shall transfer and assign its right, title and interest in the Leases and,
to the extent transferable, Approved Contracts and Documents pursuant to an
assignment (the "Assignment of Leases, Approved Contracts and Documents")
in a form to be prepared by Seller prior to the Contingency Deadline and
which shall be reasonably satisfactory to Buyer. Seller shall exercise
good faith efforts to obtain, at its sole cost and expense, any consents
needed for assignment to Buyer of the Leases, Approved Contracts and
Documents.
4. Buyer's Due Diligence.
4.1 Contingency Deadline. Except as otherwise provided in this
Agreement, Buyer shall have until 5 p.m. (Pacific Time) on January 29, 1999
("Contingency Deadline"), to review all materials provided or made
available by Seller to Buyer pursuant to the terms of this Agreement, to
review the state of title to the Property, to negotiate the Seller's Lease
and to perform such other due diligence with respect to the Property as
Buyer determines in its sole discretion to perform. If Buyer, in its sole
and absolute discretion, elects to proceed with its purchase of the
Property, Buyer shall deliver written notice (the "Notice to Proceed") to
Seller prior to the Contingency Deadline that it elects to proceed with the
purchase of the Property. If Buyer timely delivers a Notice to Proceed,
Buyer shall be deemed to have approved all aspects of the Property except
for those aspects which this Agreement expressly provides remains subject
to Buyer's approval following the Contingency Deadline, and Buyer shall
have no further right to terminate this Agreement except as otherwise
expressly provided in this Agreement. If Buyer fails to timely deliver a
Notice to Proceed or if, prior to the Contingency Deadline, Buyer, in its
sole and absolute discretion, delivers to Seller a notice of its intention
not to proceed under this Agreement, then this Agreement shall
automatically terminate, the Initial Deposit shall be returned to Buyer,
and thereafter the parties shall have no further obligation or liability
under this Agreement except for obligations which this Agreement provides
expressly survive termination. In the event of any termination of this
Agreement pursuant to the terms of this Paragraph 4.1 or any other
provisions of this Agreement, any cancellation fee or other costs of the
Escrow Holder shall be borne equally by Seller and Buyer, unless such
termination is due to the default of a party, in which event the defaulting
party shall bear all such costs and fees.
4.2 Title.
(a) Escrow Holder shall instruct the Title Company to
issue a preliminary title report (the "PTR") with respect to the Real
Property and deliver the PTR, together with legible copies of all exception
instruments referred to therein, to Buyer within five (5) days following
the Opening of Escrow or as soon thereafter as reasonably possible. If
Buyer shall timely deliver to Seller a Notice to Proceed, Buyer shall be
deemed to have approved all title exceptions reflected in the PTR, the ALTA
survey and any supplemental title report ("Supplemental PTR") received by
Buyer at least five (5) business days prior to the date of the Contingency
Deadline. If Buyer shall not receive the ALTA survey and a Supplemental
PTR listing all survey exceptions at least five (5) business days prior to
the date of the Contingency Deadline, Buyer shall note this fact in the
Notice to Proceed and the Contingency Deadline with respect to the ALTA
survey and any survey exceptions, only, shall be extended for a period of
fifteen (15) days. Such extension shall not extend the time for depositing
the Additional Deposit under Paragraph 2.1.2. After the original
Contingency Deadline but before the extended Contingency Deadline, Buyer
may terminate its purchase of the Property and this Agreement only if Buyer
objects to the ALTA survey or any survey exceptions, or if Buyer has not
received the ALTA survey or all survey exceptions. Buyer shall give Seller
written notice of such termination on or prior to the extended Contingency
Deadline and shall specify in such notice the reason for terminating. If
Buyer shall fail to give such notice, Buyer shall be deemed to have
approved the ALTA survey and all survey exceptions. If Buyer shall timely
provide such notice of termination, then this Agreement shall terminate,
the Deposit (or so much thereof as shall have been deposited in Escrow)
shall be returned to Buyer, and thereafter the parties shall have no
further obligation or liability under this agreement except for obligations
which this Agreement provides expressly survive termination.
(b) If the Title Company raises any new or additional
title exceptions later than the fifth (5th) business day prior to the date
of the original Contingency Deadline (other than survey exceptions, which
are addressed in Paragraph 4.2(a), above), Buyer shall have five (5)
business days following receipt of the Supplemental PTR raising such
exception to notify Seller and Escrow Holder in writing ("Buyer's Title
Notice") of any objections thereto. Buyer's failure to deliver Buyer's
Title Notice within the applicable time period shall be deemed Buyer's
disapproval of and objection to such new or additional exceptions. On or
before the date ("Seller's Notice Date") which is the third (3rd) business
day after (i) Seller's receipt of Buyer's Title Notice or (ii) the last day
of the period prescribed above for delivering a Buyer's Title Notice if no
Buyer's Title Notice is received by Seller within such period, Seller shall
notify Buyer in writing ("Seller's Title Notice") whether Seller elects to
eliminate or cure title objections described in Buyer's notice(s) or deemed
made by Buyer's failure to deliver the Buyer's Title Notice. If Seller
elects to eliminate or cure a title objection, the elimination or curing by
Seller of the title objection shall be completed on or before and shall be
a condition to Buyer's obligation to buy the Property. If (i) Seller does
not deliver Seller's Title Notice on or before Seller's Notice Date or (ii)
Seller notifies Buyer that Seller is unable or unwilling to cure any title
objections, Buyer may either (i) waive such objections in writing and
accept such title as Seller is able to convey, without recourse against
Seller at law, in equity or otherwise, or reduction in the Purchase Price;
or (ii) terminate this Agreement by delivering written notice to Seller and
Escrow Holder of such termination on or before the earlier of (A) five (5)
days following receipt of Seller's Title Notice or (B) five (5) calendar
days following Seller's Notice Date. Buyer's failure to deliver such
notice shall conclusively be deemed Buyer's waiver of any such title
objections. If the Closing Date is scheduled to occur prior to expiration
of the period specified in the immediately-preceding sentence for
delivering Buyer's notice of waiver or termination, the Closing Date shall
automatically be extended until the second (2nd) business day following
such expiration.
(c) The term "Permitted Exceptions" shall mean all
exceptions to title approved or deemed approved by Buyer pursuant to this
Paragraph 4.2. Notwithstanding anything to the contrary in this Agreement,
Seller shall eliminate any and all title exceptions consisting of
mechanic's liens, judgment liens, delinquent tax liens, loans secured by
mortgages, deeds of trust, security agreements or fixture filings and/or
any other monetary liens or encumbrances voluntarily created or caused by
the Seller, other than those caused by Buyer or Buyer's Representatives or
as a result of a claim against Buyer, which removal shall be a condition to
Buyer's obligation to purchase the Property.
(d) Buyer shall promptly following the date by which
both parties have executed this Agreement ("Date of Full Execution")
engage, at Buyer's sole cost, a licensed surveyor to prepare the ALTA
Survey. Buyer shall instruct the surveyor to prepare the ALTA Survey in a
form acceptable to the Title Company and shall further instruct the
surveyor to prepare and submit the ALTA Survey to the Title Company as
expeditiously as possible.
4.3 Inspection Rights.
(a) Subject to the terms and conditions of this
Paragraph 4.3, Buyer and Buyer's consultants, agents, engineers,
inspectors, contractors and employees directed by Buyer (collectively,
"Buyer's Representatives") shall have reasonable access to the Property
upon not less than 24 hours' prior notice (which may be written or oral)
prior to the Contingency Deadline for the purpose of performing such
inspections and investigations of the Property as Buyer may deem necessary
and desirable ("Inspections"). Notwithstanding the foregoing, Buyer shall
not make excavations or test borings, drill wells, materially disturb any
plants, trees or shrubs, or engage in any other activities in, on or around
the Property that materially damage the Property, absent specific written
consent from Seller, which consent shall not be unreasonably withheld,
conditioned or delayed. Inspections shall be performed at Buyer's sole
cost and expense and subject to such reasonable conditions as Seller may
impose. Upon advance written request by Seller and at Seller's cost, Buyer
shall divide and share with Seller all environmental testing samples taken
from or related to the Property for the purpose of performing separate
testing.
(b) Buyer shall indemnify, defend with counsel
reasonably acceptable to Seller and hold Seller harmless from all damage,
claims, injuries, actions, causes of action, liability, loss, claims and
expenses (including reasonable attorneys' fees) resulting from physical
injury or property damage (but excluding damage or injury caused by the
negligence or willful misconduct of Seller) arising out of the acts or
activities of Buyer, or Buyer's Representatives in, on or about the
Property or arising in connection with the Inspections performed pursuant
to this Paragraph 4.3. Buyer's indemnification obligations under this
subparagraph (b) shall survive the Close of Escrow or the earlier
termination of this Agreement.
(c) Upon any termination of this Agreement, other than
due to the default of Seller hereunder, Seller, at its option, has the
right to request, and Buyer shall promptly thereafter deliver to Seller, at
no cost to Seller any copies of environmental, geotechnical, water or soils
reports or studies and surveys and all other studies or reports prepared
for Buyer by third parties (other than Buyer's attorneys) and relating to
the Property ("Buyer's Reports"). Buyer shall have the right to retain a
copy of all of Buyer's Reports. Buyer's obligations under this
subparagraph (c) shall survive the Close of Escrow or the earlier
termination of this Agreement.
(d) Prior to undertaking any Inspections of the
Property, or any portion thereof, Buyer shall procure and maintain, and
cause any and all of Buyer's Representatives to procure and maintain,
commercial general liability insurance insuring against injuries to person,
death or property damage on or about the Property and identifying Seller as
an additional insured. Such commercial general liability insurance shall
be on an occurrence basis and shall be in a combined single limit of not
less than Two Million Dollars ($2,000,000). Such liability insurance shall
provide that is shall not be modified or canceled without at least thirty
(30) days prior written notice to Seller. Such commercial general
liability insurance maintained shall contain a severability of interests
provision and shall specifically insure Buyer's contractual liability under
the provisions of Section 4.3(b), above.
4.4 Books and Records. Up to and including the Close of Escrow,
Seller shall make available without representation or warranty as to
accuracy or completeness (except as otherwise expressly set forth in this
Paragraph 4.4) for inspection, review and copying by Buyer, at Buyer's sole
cost and expense, such documents, plans, records, files and other
information respecting the Property as are listed on Exhibit "B" attached
hereto (collectively, the "Books and Records"). If such list is not
attached to this Agreement when executed by the parties, Seller shall
deliver such list to Buyer on or before January 7, 2000. Seller shall
either deliver the Books and Records to Buyer or make them available to
Buyer at 100 Enterprise Way, Scotts Valley, California for inspection on
reasonable prior notice, which may be written or oral. The term "Books and
Records" specifically excludes: corporate, financial and accounting records
and documents regarding the operations of Seller or its predecessor in
title or their affiliates or subsidiaries as an entity, as opposed to
records concerning only the Property; appraisals, financial projections or
proformas prepared by Seller; privileged attorney-client communications,
and attorney work product which is not related to the condition of the
Property; loan documents regarding loans no longer encumbering any of the
Property; information regarding potential buyers; marketing records; and
Books and Records that have been lost or destroyed or are in the
possession of others. Seller represents and warrants that it has
undertaken reasonable efforts to locate and make available to Buyer all
Books and Records and, to the actual knowledge of Seller, the list set
forth on Exhibit "B" lists all of the Books and Records. Within five (5)
business days following the Date of Full Execution, Seller shall deliver to
Buyer a copy of all certificates of occupancy for the Real Property.
4.5 Buyer's Independent Investigation.
(a) Buyer shall be given by Seller before the
Contingency Deadline, a full opportunity to inspect and investigate each
and every aspect of the Property ("Condition of the Property"), either
independently or through agents, employees, contractors or consultants of
Buyer's choosing, including, without limitation:
(i) All matters relating to title, together with all
governmental and other legal requirements such as taxes, assessments,
zoning, use permit requirements and building codes.
(ii) The physical condition of the Property, including,
without limitation, the interior, the exterior, the structure, the paving,
the utilities, and all other physical and functional aspects of the
Property. In the event Buyer enters onto the Property to perform any test,
inspection or investigation of the Property, Buyer shall do so in a manner
that causes the least interference possible to any tenants occupying space
within the Property. Any examination of the physical condition of the
Property may include an examination (the "Toxics Examination") for the
presence or absence of Hazardous Materials as defined in Section 18.1.2),
which Toxics Examination shall be performed or arranged by Buyer for the
benefit of Buyer and Seller at Buyer's sole expense. As provided in
Section 4.3(a) above, Buyer agrees not to undertake any invasive testing or
investigation of the Property with respect to its Toxics Examination unless
and until Seller has approved (which shall not be unreasonably withheld)
the scope of such invasive testing or investigation and the contractor or
consultant to undertake performance of the same. Seller shall receive
copies of all reports issued, and shall be entitled to the return, if
available, of all water or soils samples taken from the Property, in
connection with the Toxics Examination.
(iii) Any easements and/or access rights affecting the
Property.
(iv) All other matters of material significance affecting
the Property.
Subject to the other provisions of this agreement, Buyer agrees, represents
and warrants that (i) it will purchase the Property subject to each and
every Condition of the Property and (ii) Seller has no obligation to repair
correct or compensate Buyer for any Condition of the Property. Seller
shall, from the date of this Agreement to the Close of Escrow, at Seller's
sole cost and expense, maintain the Property in the same general condition
as Seller maintained the Property during the ninety (90) day period ending
upon the date of this Agreement. Seller's covenant in the immediately-
preceding sentence shall survive the Close of Escrow for ninety (90) days.
(b) WITHOUT LIMITING THE EFFECT OF SELLER'S
REPRESENTATIONS, WARRANTIES, COVENANTS AGREEMENTS AND OBLIGATIONS SET FORTH
IN THIS AGREEMENT, OR ANY STATEMENTS CONTAINED IN TENANT ESTOPPEL
CERTIFICATES SIGNED BY SELLER AND DELIVERED TO BUYER PURSUANT TO PARAGRAPH
5.1.7, BELOW, BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT SELLER IS
SELLING AND BUYER IS PURCHASING THE PROPERTY ON AN "AS IS WITH ALL FAULTS"
BASIS AND THAT BUYER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF
ANY KIND WHATSOEVER, EXPRESS (EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT OR IN SUCH TENANT ESTOPPEL CERTIFICATES SIGNED BY SELLER) OR
IMPLIED, FROM SELLER, ITS AGENTS, OR BROKERS AS TO ANY MATTERS CONCERNING
THE PROPERTY, INCLUDING WITHOUT LIMITATION: (I) THE QUALITY, NATURE,
ADEQUACY AND PHYSICAL CONDITION OF THE PROPERTY, INCLUDING, BUT NOT LIMITED
TO, THE STRUCTURAL ELEMENTS, IMPROVEMENTS, FOUNDATION, ROOF, ROOF MEMBRANE,
APPURTENANCES, ACCESS, LANDSCAPING, PARKING FACILITIES AND THE ELECTRICAL,
MECHANICAL, HVAC, PLUMBING, SEWAGE, AND UTILITY SYSTEMS, FACILITIES AND
APPLIANCES, (II) THE QUALITY, NATURE, ADEQUACY, AND PHYSICAL CONDITION OF
SOILS, GEOLOGY AND ANY GROUNDWATER, (III) THE EXISTENCE, QUALITY, NATURE,
ADEQUACY AND PHYSICAL CONDITION OF UTILITIES SERVING THE PROPERTY, (IV) THE
DEVELOPMENT POTENTIAL OF THE PROPERTY, AND THE PROPERTY'S USE,
HABITABILITY, MERCHANTABILITY, OR FITNESS, SUITABILITY, VALUE OR ADEQUACY
OF THE PROPERTY FOR ANY PARTICULAR PURPOSE, (V) THE ZONING OR OTHER LEGAL
STATUS OF THE PROPERTY OR ANY OTHER PUBLIC OR PRIVATE RESTRICTIONS ON USE
OF THE PROPERTY, (VI) THE COMPLIANCE OF THE PROPERTY OR ITS OPERATION WITH
ANY APPLICABLE CODES, LAWS, REGULATIONS, STATUTES, ORDINANCES, COVENANTS,
CONDITIONS AND RESTRICTIONS OF ANY GOVERNMENTAL OR QUASI-GOVERNMENTAL
ENTITY OR OF ANY OTHER PERSON OR ENTITY, (VII) THE PRESENCE OF HAZARDOUS
MATERIALS ON, UNDER OR ABOUT THE PROPERTY OR THE ADJOINING OR NEIGHBORING
PROPERTY, (VIII) THE QUALITY OF ANY LABOR AND MATERIALS USED IN ANY
IMPROVEMENTS ON THE PROPERTY, (IX) THE CONDITION OF TITLE TO THE PROPERTY,
AND (X) THE ECONOMICS OF THE OPERATION OF THE PROPERTY. BUYER ACKNOWLEDGES
THAT IT SHALL USE ITS INDEPENDENT JUDGMENT AND MAKE ITS OWN DETERMINATION
AS TO THE SCOPE AND BREADTH OF THE DUE DILIGENCE INVESTIGATION WHICH IT
SHALL MAKE RELATIVE TO THE PROPERTY. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, BUYER SHALL RELY UPON ITS OWN INVESTIGATION OF THE PHYSICAL,
ENVIRONMENTAL, ECONOMIC AND LEGAL CONDITION OF THE PROPERTY (INCLUDING,
WITHOUT LIMITATION, WHETHER THE PROPERTY IS LOCATED IN ANY AREA WHICH IS
DESIGNATED AS A SPECIAL FLOOD HAZARD AREA, DAM FAILURE INUNDATION AREA,
EARTHQUAKE FAULT ZONE, SEISMIC HAZARD ZONE, HIGH FIRE SEVERITY AREA OR
WILDLAND FIRE AREA, BY ANY FEDERAL, STATE OR LOCAL AGENCY). BUYER
UNDERTAKES AND ASSUMES THE RISKS ASSOCIATED WITH ALL MATTERS PERTAINING TO
THE PROPERTY'S LOCATION IN ANY AREA DESIGNATED AS A SPECIAL FLOOD HAZARD
AREA, DAM FAILURE INUNDATION AREA, EARTHQUAKE FAULT ZONE, SEISMIC HAZARD
ZONE, HIGH FIRE SEVERITY AREA OR WILDLAND FIRE AREA, BY ANY FEDERAL, STATE
OR LOCAL AGENCY. THE PROVISIONS OF THIS SECTION 4.5(b) SHALL INDEFINITELY
SURVIVE THE CLOSE OF ESCROW HEREUNDER OR TERMINATION OF THIS AGREEMENT AND
SHALL NOT BE MERGED INTO THE GRANT DEED.
(c) As of the Close of Escrow, Buyer waives on behalf
of itself and its agents, employees, affiliates, partners, officers,
directors, shareholders, members, successors and assigns, any and all right
to recover from Seller and from the affiliates of Seller and the members,
partners trustees, shareholders, directors, officers, employees and agents
of each of them (collectively, the "Seller Related Parties"), and forever
releases and discharges Seller and the Seller Related Parties from any and
all damages, claims, losses, liabilities, penalties, fines, liens, actions,
causes of action, judgments, costs or expenses whatsoever (including,
without limitation, attorneys' fees and costs), whether direct or indirect,
known or unknown, foreseen or unforeseen (collectively, "Claims"), other
than "Excluded Claims" (as hereinafter defined) that may arise on account
of or in any way be connected with the Property (including, without
limitation, the Improvements) or any law or regulation applicable thereto
(including, without limitation, any Environmental Law (as defined in
Paragraph 18.1.1, below)). The term "Excluded Claims" means (A) any Claims
related to or arising out of Seller's active concealment or fraud and (B)
other Claims, excluding Claims relating to the presence of Hazardous
Materials at the Property, related to or arising out of (i) Seller's pre-
Close of Escrow gross negligence or wilful misconduct, (ii) Seller's post-
Close of Escrow negligence or wilful misconduct, (iii) representations,
warranties, covenants, agreements and other obligations of Seller under
this Agreement, to the extent surviving the Close of Escrow, (iv)
representations and statements in any Tenant Estoppel Certificate signed by
Seller, and (v) obligations of Seller under the Seller's Lease.
(d) In connection with subparagraph (c), above, Buyer
expressly waives the benefits of Section 1542 of the California Civil Code,
which provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
Buyer's Initials: T.G.
4.6 Seller Leaseback. Buyer and Seller shall enter into a lease
(the "Seller's Lease") providing for Seller's lease from Buyer, commencing
on the Close of Escrow, of space within the real property (the "Leaseback
Premises") upon the terms and conditions set forth on Exhibit "C" attached
hereto, and such additional terms and conditions as Buyer and Seller may
agree upon. Buyer and Seller shall expeditiously and in good faith
negotiate and document the Seller's Lease and use reasonable efforts to
execute the Seller's Lease prior to the Contingency Deadline. Each party
shall, within one (1) business day following execution of the Seller's
Lease, deposit its executed counterpart of the Seller's Lease into Escrow.
If the parties shall fail to execute the Seller's Lease prior to the
Contingency Deadline, then this Agreement shall automatically terminate
(except with respect to rights and obligations that expressly survive
termination of this Agreement) and Escrow Holder shall immediately return
to Buyer its Initial Deposit (plus interest accrued thereon)].
5. Conditions to Closing.
5.1 Buyer's Closing Conditions. Buyer's obligation to purchase
the Property is expressly conditioned on the fulfillment at or before the
Close of Escrow (or such earlier date specified below for fulfillment of
such conditions) of each of the conditions precedent described below
("Buyer's Closing Conditions"). Buyer's Closing Conditions are solely for
Buyer's benefit and any and all of Buyer's Closing Conditions may be waived
in writing by Buyer in whole or in part.
5.1.1 Title. Title to the Property shall be conveyed to
Buyer by Grant Deed (with documentary transfer tax information to be filed
separately) subject only to the Permitted Exceptions. It shall be a
Buyer's Closing Condition that the Title Company shall be irrevocably and
unconditionally committed to issue to Buyer the Title Policy, subject only
to the Permitted Exceptions.
5.1.2 Delivery of Closing Documents. It shall be a
Buyer's Closing Condition that Seller shall deliver through Escrow the
documents specified in Section 6.
5.1.3 Performance of Covenants. It shall be a Buyer's
Closing Condition that Seller shall have performed in all material respects
the covenants of Seller under this Agreement to be performed by Seller
before the Close of Escrow.
5.1.4 Contingencies. It shall be a Buyer's Closing
Condition that Buyer delivers a Notice to Proceed to Seller prior to the
Contingency Deadline.
5.1.5 Representations and Warranties. It shall be a
Buyer's Closing Condition that all of the representations and warranties of
Seller set forth in Paragraph 12 hereof shall be true and correct in all
material respects as of the Close of Escrow.
5.1.6 Seller's Lease. It shall be a Buyer's Closing
Condition that Buyer and Seller shall have each executed and deposited into
Escrow the Seller's Lease.
5.1.7 Tenant Estoppel Certificates. It shall be a
Buyer's Closing Condition that Buyer shall have received (i) signed tenant
estoppel certificates, in form and substance approved during the
Contingency Period by Buyer, in its reasonable discretion, and Buyer's
lender, if any, in its sole discretion, from tenants who, in the aggregate
occupy not less than eighty-five percent (85%) of the leased square footage
at the Real Property and from each tenant who occupies more than five
percent (5%) of the rentable square footage at the Real Property and (ii)
an estoppel certificate, in form and substance approved by Buyer, in its
reasonable discretion, and Buyer's lender, if any, in its sole discretion,
completed and signed by Seller (and which contains statements that survive
for a period of two years following the Close of Escrow and which are made
"to Seller's actual knowledge," as such phrase is defined in Paragraph
1.1.3, above) with respect to any Lease for which an estoppel certificate
is not obtained from the tenant. Within ten (10) days following the Date
of Full Execution (or later if requested by Buyer, but not after the
Contingency Deadline), Seller agrees to deliver an estoppel certificate in
the form attached hereto as EXHIBIT "D" to each tenant of the Property with
a request for each tenant to complete and return the estoppel certificate
with ten (10) days. Upon request by Buyer or Buyer's lender, if any,
Seller shall deliver to each tenant designated by the requesting party a
subordination/non-disturbance agreement in form and substance approved by
Buyer, in its reasonable discretion, and Buyer's Lender, if any, in its
sole discretion, with a request for each such tenant to sign and return
such document within ten (10) days.
5.2 Seller's Closing Conditions. Seller's obligation to sell
the Property is expressly conditioned upon the fulfillment at or before the
Close of Escrow of each of the conditions precedent described below
("Seller's Closing Conditions"). Seller's Closing Conditions are solely
for Seller's benefit and any or all of Seller's Closing Conditions may be
waived in writing by Seller in whole or in part without prior notice.
5.2.1 Purchase Price. It shall be a Seller's Closing
Condition that Buyer shall have delivered to Seller through Escrow the
Purchase Price.
5.2.2 Delivery of Closing Documents and Funds. It shall
be a Seller's Closing Condition that Buyer deliver through Escrow the
documents and funds specified in Section 7.
5.2.3 Performance of Covenants. It shall be a Seller's
Closing Condition that Buyer shall have performed the covenants of Buyer
under this Agreement to be performed prior to the Close of Escrow.
5.2.4 Seller's Lease. It shall be a Seller's Closing
Condition that Buyer and Seller shall have each executed and deposited into
Escrow the Seller's Lease.
5.3 Termination. If Buyer's Closing Conditions or Seller's
Closing Conditions, as the case may be, are not satisfied or waived by the
Closing Date, this Agreement may be terminated by the party in whose favor
the Closing Condition runs by written notice to the other. If this
Agreement is so terminated, the parties shall have no further obligation or
liability under this Agreement, except for obligations which, pursuant to
this Agreement, expressly survive termination of this Agreement; provided,
however, any party not in default under this Agreement shall have such
rights and remedies as are available under the laws of the State of
California and this Agreement against any party that is in default. In the
event this Agreement is terminated due to a failure of a Buyer's Closing
Condition to be satisfied, then the Deposit (or so much thereof as shall
have been deposited by Buyer, with interest thereon) shall be returned to
Buyer. In the event this Agreement is terminated due to a failure of a
Seller's Closing Condition to be satisfied, then Seller shall be entitled
to retain the Deposit (or so much thereof as has been deposited into
Escrow) to the extent provided in Paragraph 15, below. Any cancellation
fee or other costs of the Escrow Holder shall be borne equally by Seller
and Buyer, unless this Agreement is terminated due to a default of either
party, in which event the defaulting party shall bear such costs and fees.
6. Seller's Delivery Into Escrow.
6.1 On or before the Closing Date, Seller shall deliver into
escrow:
6.1.1 The Grant Deed;
6.1.2 Two (2) executed counterparts of the Assignment of
Leases, Approved Contracts and Documents and the Bill of Sale;
6.1.3 Two (2) executed counterparts of the Seller's
Lease;
6.1.4 Originals of the Leases, the Approved Contracts
and the Documents (to the extent in Seller's possession or control);
6.1.5 Such other instruments or instructions as are
reasonably necessary or appropriate in order to complete Seller's
performance hereunder and to consummate this transaction; and
6.1.6 Such other documents required of Seller under the
terms of this Agreement.
7. Buyer's Delivery Into Escrow.
7.1 On or before the Closing Date, Buyer shall deliver into
escrow:
7.1.1 Such sums as are required to be deposited by Buyer
pursuant to Paragraph 2 hereof, plus such additional funds as are required
to pay charges payable by Buyer hereunder, less any credit to which Buyer
is entitled under the terms hereof;
7.1.2 Two (2) executed counterparts of the Assignment of
Leases, Approved Contracts and Documents and the Bill of Sale;
7.1.3 Two (2) executed counterparts of the Seller's
Lease;
7.1.4 Such other instruments or instructions as are
reasonably necessary or appropriate in order to complete Buyer's
performance hereunder and to consummate this transaction; and
7.1.5 Such other documents required of Buyer under the
terms of this Agreement.
8. Closing Costs.
8.1 The fees of Escrow Holder shall be borne equally by Seller
and Buyer.
8.2 The Title Policy premium shall be borne by the parties as
provided in Paragraph 3.2 hereof.
8.3 Seller shall pay the preparation and recording charges for
the Grant Deed.
8.4 Any documentary transfer taxes shall be paid by Seller.
8.5 All other charges, fees and costs incident to the Close of
Escrow shall be borne by Buyer and Seller in the manner customary in Santa
Cruz County, California (the "County").
8.6 Each party shall pay its own attorneys' fees.
9. Prorations And Adjustments.
9.1 Prorations Paid Through Escrow. Real property taxes and
current installments of assessments applicable to the Property, rent
(including common area maintenance charges) paid under the Leases, and
other income and expenses applicable to the Property shall be prorated as
of the Closing Date with expenses allocable to the period on and after
Closing Date to be for Buyer's account, and expenses allocable to the
period before the Closing Date to be for Seller's account. Any property
taxes assessed against the Property after the Closing Date, with respect to
any period of time before the Closing Date, shall be paid by Seller on
demand. All prorations shall be made as of 12:01 a.m. on the Closing Date
and Buyer shall bear the burden of the expenses and shall receive the
benefit of revenues for such day.
9.2 Adjustment After Close of Escrow. Any income or expense
which cannot be ascertained with certainty as of the Closing Date shall be
prorated on the basis of the parties' reasonable estimates of such amounts
and shall be the subject of a final proration as soon thereafter as the
precise amounts can be ascertained but in no event later than one hundred
eighty (180) days after the Close of Escrow. A statement setting forth
such agreed proration shall be delivered to the Escrow Holder, provided
Escrow Holder shall not be required to calculate any prorations. Seller
and Buyer shall each cooperate with the other diligently and promptly to
correct any errors in computations or estimates under this Paragraph 9.2
and shall promptly pay to the party entitled thereto any refund, credit or
other payment necessary to comply with this Paragraph 9.2. Either party
owing the other party a sum of money based on adjustments made to
prorations after the Close of Escrow shall promptly pay that sum to the
other party, together with interest thereon at the rate of Ten Percent
(10%) per annum from the date of demand of payment to the date of payment
if payment is not made within thirty (30) days after demand therefor.
9.3 Prepaid rents for the period after the Close of Escrow and
all security deposits under the Leases held by Seller shall be credited to
Buyer, and the Escrow closing statement shall constitute Seller's receipt
for such rents and deposits. Rents in arrears prior to the Close of Escrow
shall not be prorated, but shall be paid to Seller by Buyer when and if
collected by Buyer, such payment to occur every thirty (30) calendar days
following the Closing Date to the extent of any collected funds at such
times. The first monies received by Buyer from each tenant after the
Closing Date shall, unless designated otherwise by the tenant, be applied
first to current rent due after the Close of Escrow, and the balance, if
any, shall be paid to Seller for rent in arrears.
9.4 Seller reserves all claims and causes of action against
tenants and others who are in arrears as of the Closing Date, and Buyer
shall reasonably cooperate with Seller in pursuing such arrearages and
shall promptly remit arrearages and other sums due to Seller upon receipt
thereof. If Buyer is holding a security deposit as to any tenant who owes
money to Seller, then, upon expiration of that tenant's Lease, Buyer shall
apply the security deposit to the payment of any sum due Seller to the
extent the security deposit is not otherwise applied to payment of sums due
Buyer. Buyer shall have no obligation to collect all sums in arrears as of
the Closing Date due to Seller. Seller may commence and prosecute
litigation against any tenant or others for such arrearages.
9.5 Seller shall provide to Buyer, at least five (5) business
days prior to the date of the Contingency Deadline, copies of any new
Leases or Contracts, or amendments to existing Leases or Contracts, entered
into by Seller and not previously provided to Buyer together with an
updated Rent Roll reflecting new Leases or changes to existing Leases.
From and after the date which is five (5) business days prior to the date
of the Contingency Deadline through the Close of Escrow or any earlier
termination of this Agreement, Seller shall not enter into any new Leases
or Contracts, or amend any existing Leases or Contracts without the prior
written consent of Buyer (which consent shall not be unreasonably
withheld).
9.6 Seller shall be responsible for all commissions due with
respect to Leases entered into by Seller prior to the Close of Escrow.
9.7 On or before the Closing Date, Seller shall prepare or cause
to be prepared notices addressed to each tenant of the Property, in form
reasonably approved by Buyer, to be signed by Seller and Buyer advising
tenants that the Property has been sold to Buyer, that security deposits
have been transferred to Buyer and that all rents shall thereafter be paid
to Buyer. Such notices shall be delivered by Seller or Seller's agent to
the tenants immediately following the Close of Escrow and such notices
shall comply in all respects with California Civil Code
Section 1950.7(d)(1).
9.8 All prorations, unless otherwise provided herein, shall be
on an accrual basis and based upon actual a thirty (30) day month. Buyer
and Seller shall allow the other access to their respective books and
records relating to the Property to verify the prorations and adjustments
provided in this Agreement.
9.9 The provisions of Paragraph 9 shall survive the Close of
Escrow.
10. Opening And Closing Of Escrow.
10.1 Within two (2) days after the Date of Full Execution, Seller
shall cause escrow ("Escrow") to be opened by delivering the fully executed
Agreement, together with Buyer's check representing the Deposit (if
supplied pursuant to Paragraph 2.1), to Chicago Title Company, San Jose,
California, or such other company that the parties may agree upon in
writing, which shall act as escrow holder ("Escrow Holder") ("Opening of
Escrow"). Seller shall immediately notify Buyer of the Opening of Escrow.
Escrow Holder is hereby authorized and instructed to act in accordance with
the provisions of this Agreement which, together with Escrow Holder's
standard general provisions, shall constitute Escrow Holder's instructions.
In the event of any conflict between the terms of this Agreement and the
terms of Escrow Holder's standard general provisions, the terms of this
Agreement shall control. Buyer and Seller shall each deposit such other
documents and instruments as are reasonably necessary to close escrow and
complete the sale and purchase of the Property in accordance with the terms
of this Agreement. If any requirements relating to the duty of Escrow
Holder under this Agreement are not reasonably acceptable to Escrow Holder,
or if Escrow Holder determines that it requires additional or amended
instructions in order to perform its duties hereunder, the parties agree to
make such additions and amendments to these escrow instructions as may be
mutually agreed upon by the parties, provided such additions and amendments
do not substantially change this Agreement or its intent. Buyer and Seller
agree to hold Escrow Holder harmless from and against any action taken by
Escrow Holder in accordance with the terms of this Agreement not requiring
further instructions from the parties or actions taken based upon Seller's
unilateral instructions, including, without limitation, the release of
funds in accordance with Paragraph 15 hereof.
10.2 The term "Close of Escrow" shall mean the date upon which
the Grant Deed is recorded in the Official Records of the County.
10.3 The term "Closing Date" shall mean the date upon which the
Close of Escrow shall occur, which date shall be the first business day
occurring not less than thirty (30) days following the Contingency
Deadline, as such date may be extended pursuant to the terms of this
Agreement. The Closing Date shall occur on any weekday from Tuesday
through Friday. If the Closing Date (or any extension or postponement
thereof) is scheduled for a Monday for any reason, the Closing Date shall
be automatically postponed until the next business day.
10.4 Possession of the Property, subject to the Leases shown on
the Rent Roll furnished by Seller to Buyer pursuant to Paragraphs 1.1.3 and
9.5, shall be delivered to Buyer on the Close of Escrow.
11. Disbursements And Other Actions By Escrow Holder.
11.1 On the Close of Escrow, Escrow Holder shall promptly
undertake all of the following in the manner hereby indicated:
11.1.1 Disburse all funds deposited with Escrow Holder by
Buyer in payment of the Purchase Price as follows:
(a) Deduct therefrom all items chargeable to the
account of Seller pursuant to this Agreement; and
(b) Disburse to Seller the remaining balance of the
funds deposited by Buyer for the Purchase Price, except as may otherwise be
required by these instructions.
11.1.2 Record the Grant Deed, together with any other
documents or instruments which the parties may mutually direct to be
recorded in the Official Records of the County;
11.1.3 Deliver to Buyer and Seller duplicate originals of
the Bill of Sale, the Assignment of Leases and the Seller's Lease; and
11.1.4 Deliver to Buyer those items deposited into escrow
by Seller, and deliver to Seller any other items deposited into escrow by
Buyer, as provided herein.
12. Representations and Warranties.
12.1 Seller's Representations and Warranties. Seller hereby
represents and warrants as of the Date of Full Execution to Buyer the
following:
12.1.1 To Seller's actual knowledge there is no claim,
action, litigation, arbitration or other proceeding pending against Seller
which relates to the Property or the transactions contemplated hereby
except as disclosed in writing to Buyer and, to Seller's actual knowledge,
there is currently no governmental investigation, litigation or arbitration
proceedings to which Seller is a party which relate to the Property. As
previously disclosed to Seller, one or more property owners who own real
property adjacent to and north of the Property have contended that they
hold a prescriptive or implied easement over a portion of the Property. To
the actual knowledge of Seller, such adjacent property owners who have
previously claimed a prescriptive or implied easement have not filed any
lawsuit to attempt to quiet title to such easement. Buyer shall have the
opportunity to investigate this matter during its Contingency Period and
shall not be deemed to have approved same unless and until it delivers a
Notice to Proceed.
12.1.2 To Seller's actual knowledge there are no
attachments, execution proceedings, assignments for the benefit of
creditors, insolvency, bankruptcy, reorganization or other proceedings
pending against Seller.
12.1.3 To Seller's actual knowledge, true and correct
copies of all of the Leases, Contracts and Documents that are in Seller's
possession, custody and control have been delivered or made available to
Buyer.
12.1.4 To Seller's actual knowledge there are no pending
or contemplated condemnation or annexation proceedings affecting the
Property or any part thereof.
12.1.5 Seller has all necessary corporate power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder and this Agreement shall be the valid and binding
obligation of Seller enforceable against Seller in accordance with its
terms, subject to the effect of applicable bankruptcy, insolvency,
reorganization or other similar laws affecting the rights of creditors
generally.
12.2 Buyer's Representations and Warranties. Buyer hereby
represents and warrants as of the Date of Full Execution to Seller the
following:
12.2.1 Buyer has all necessary corporate power and
authority to execute and deliver this agreement and to perform its
obligations hereunder. This Agreement is the valid and binding obligation
of Buyer enforceable against Buyer in accordance with its terms, subject to
the effect of applicable bankruptcy, insolvency, reorganization or other
similar laws affecting the rights of creditors generally.
12.3 Survival. The representations of Buyer and Seller in this
Agreement shall survive the Close of Escrow for a period of two (2) years.
13. Casualty Loss.
13.1 If the Property is materially damaged or destroyed prior to
the Close of Escrow, Seller shall, within five (5) days of such damage or
destruction, give written notice to Buyer of the date and nature of such
damage or destruction and of Seller's election to repair or not to repair
such damage or destruction. Seller shall have no obligation to repair such
damage or destruction. "Material damage" shall mean damage which costs in
excess of $50,000 to repair.
13.2 If Seller elects not to repair such damage or destruction,
Buyer may, by delivering written notice to Seller within five (5) calendar
days following receipt of Seller's notice, elect to terminate this
Agreement or accept title to the Property subject to such damage or
destruction, without recourse against Seller or reduction in the Purchase
Price. In the event Buyer elects to accept title to the Property, Seller
shall assign to Buyer any and all rights Seller may have to insurance
proceeds payable in connection with such damage or destruction (except for
rental loss insurance proceeds applicable to the period prior to the Close
of Escrow, which shall be retained by Seller).
13.3 If Buyer elects to terminate this transaction, this
Agreement shall be deemed canceled and of no further force or effect
(except for obligations under this Agreement which expressly survive
termination), the Deposit and all accrued interest thereon shall be
refunded to Buyer, and the parties shall have no recourse against each
other at law or in equity, or otherwise be liable to the other, for any
reason relating to this Agreement.
14. Condemnation.
If any part of the Property is condemned prior to the Close of
Escrow, Seller shall, within five (5) days of Seller's knowledge of the
condemnation proceeding, give Buyer written notice of such condemnation and
Buyer shall have the option of either purchasing the Property and receiving
the proceeds from such condemnation with no further recourse against Seller
(at law, in equity or otherwise) or declaring this Agreement terminated by
delivering written notice of termination to Seller. If so terminated, this
Agreement shall be deemed canceled and of no further force or effect, the
Deposit and all accrued interest thereon shall be refunded to Buyer, and
the parties shall have no recourse against each other at law or in equity,
or otherwise be liable to the other, for any reason relating to this
Agreement.
15. Default And Liquidated Damages.
15.1 THE PARTIES HERETO, BEFORE ENTERING INTO THIS TRANSACTION,
HAVE BEEN CONCERNED WITH THE FACT THAT SUBSTANTIAL DAMAGES WILL BE SUFFERED
BY SELLER IN THE EVENT ESCROW SHALL FAIL TO CLOSE AS PROVIDED IN THIS
AGREEMENT DUE TO A DEFAULT BY BUYER UNDER THIS AGREEMENT. IN LIGHT OF
FACTORS THAT DIRECTLY OR INDIRECTLY AFFECT THE VALUE AND MARKETABILITY OF
PROPERTY, IT IS ACKNOWLEDGED BY THE PARTIES THAT IT WOULD BE EXTREMELY
DIFFICULT AND IMPRACTICABLE, IF NOT IMPOSSIBLE, TO ASCERTAIN WITH ANY
DEGREE OF CERTAINTY, PRIOR TO EXECUTION OF THIS AGREEMENT, THE AMOUNT OF
DAMAGES THAT WOULD BE SUFFERED BY SELLER IN THE EVENT OF ANY FAILURE OF
ESCROW TO CLOSE DUE TO A DEFAULT BY BUYER.
15.2 THE PARTIES, HAVING MADE DILIGENT BUT UNSUCCESSFUL ATTEMPTS
TO ASCERTAIN THE ACTUAL COMPENSATORY DAMAGES SELLER WOULD SUFFER IN THE
EVENT OF BUYER'S NONPERFORMANCE OF ANY OBLIGATION HEREUNDER, OR THE FAILURE
OF BUYER TO PERFORM UNDER THE TERMS OF THIS AGREEMENT, HEREBY AGREE THAT
THE REASONABLE ESTIMATE OF SAID DAMAGES IS THE AMOUNT OF THE DEPOSIT.
THEREFORE, PROVIDED SELLER IS NOT IN DEFAULT, IN THE EVENT OF BUYER'S
DEFAULT UNDER THIS AGREEMENT AND, BY REASON OF SUCH DEFAULT, THIS ESCROW
SHALL FAIL TO CLOSE ON THE CLOSING DATE OR IS CANCELED OR TERMINATED:
(a) SELLER MAY RETAIN THE DEPOSIT (TOGETHER WITH ACCRUED INTEREST THEREON)
AS LIQUIDATED DAMAGES AND AS SELLER'S SOLE AND EXCLUSIVE REMEDY, WHETHER AT
LAW OR IN EQUITY, FOR BUYER'S FAILURE OR REFUSAL TO CONSUMMATE THE PURCHASE
AND SALE TRANSACTION; AND (b) ESCROW HOLDER IS HEREBY IRREVOCABLY
INSTRUCTED TO IMMEDIATELY RELEASE THE DEPOSIT (IF NOT PREVIOUSLY RELEASED)
TO SELLER UPON RECEIPT OF WRITTEN DEMAND FROM SELLER, WITHOUT LIABILITY OR
FURTHER NOTICE TO OR INSTRUCTIONS FROM BUYER (AND NOTWITHSTANDING ANY
INCONSISTENT UNILATERAL INSTRUCTION WHICH MAY BE DEPOSITED INTO ESCROW BY
BUYER). THE PROVISIONS OF THIS SECTION 15 SHALL NOT BE APPLICABLE TO, AND
THERE SHALL BE NO LIMITATION ON THE AMOUNT OF SELLER'S DAMAGES, IN THE
EVENT OF A BREACH BY BUYER OF ANY INDEMNIFICATION OBLIGATION OF BUYER UNDER
THIS AGREEMENT.
15.3 BY PLACING THEIR INITIALS AT THE PLACES PROVIDED BELOW, EACH
PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENT MADE ABOVE AND
THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL AND THAT SUCH COUNSEL
EXPLAINED THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION AND OTHER
PROVISIONS OF THIS AGREEMENT AT THE TIME SAME WAS EXECUTED.
Buyer's Initials T.G. Seller's Initials H.McK.B.
15.4 Buyer's Indemnity. Buyer shall indemnify Seller from and
against any and all Claims arising out of or in connection with (i) the
obligations of Buyer under any contracts or agreements regarding the
Property respecting or pertaining to the period of time occurring on or
after the Closing Date (excluding contracts or agreements which are
required to be terminated pursuant to Paragraph 1.1.4 or which were in
existence prior to the Close of Escrow but were not disclosed on the list
of Contracts provided by Seller in accordance with Paragraph 1.1.4), (ii)
any personal injury or property damage that occurred on the Property on or
after the Closing Date, except to the extent caused by the grossly
negligent or willful acts or omissions of Seller or its agents or employees
either after the Closing or prior to the Closing, (iii) any liability to
any contractor, subcontractor, supplier or any other person or entity
related to work performed at the Property for Buyer and (iv) any act or
omission respecting the Property of Buyer, its agents, employees,
successors or assigns occurring after the Close of Escrow, except to the
extent caused by the negligent or wilful acts or omissions of Seller.
Buyer shall immediately take such measures as may be reasonably required to
defend a Claim properly and effectively, and may defend same with counsel,
consultants and experts of its own choosing approved by Seller (which
approval shall not be unreasonably withheld or delayed). If Buyer fails to
defend such Claim properly and effectively, then Seller may defend such
Claim with counsel, consultants and experts of its own choosing at the
expense of Buyer, provided Seller gives Buyer prior written notice thereof.
15.5 Seller's Indemnity. Seller shall indemnify Buyer from and
against any and all Claims arising out of or in connection with (i) the
obligations of Seller under any contracts or agreements regarding the
Property respecting or pertaining to the period of time occurring before
the Closing Date unless such obligations were expressly assumed by Buyer
prior to the Close of Escrow, (ii) any personal injury or property damage
that occurred on the Property prior to the Close of Escrow except to the
extent caused by the negligent or willful acts or omissions of Buyer or its
agents or employees and (iii) any liability to any contractor,
subcontractor, supplier or any other person or entity related to work
performed at the Property for Seller or prior to the Close of Escrow
(except for work performed at the Property for Buyer). Notwithstanding
anything in this Agreement to the contrary, Seller is not indemnifying
Buyer against any Hazardous Materials condition that occurred on the
Property prior to, or that exists as of, the Close of Escrow. Seller shall
immediately take such measures as may be reasonably required to defend a
Claim properly and effectively, and may defend same with counsel,
consultants and experts of its own choosing approved by Buyer (which
approval shall not be unreasonably withheld or delayed). If Seller fails
to defend such Claim properly and effectively, then Buyer may defend such
Claim with counsel, consultants and experts of its own choosing at the
expense of Seller, provided Buyer gives Seller written notice thereof.
15.6 Survival of Indemnities. The agreements in Paragraphs 15.4
and 15.5 shall survive the Closing for a period equal to the greater of
(i) five (5) years or (ii) with respect to any third-party claim for which
a party is seeking indemnification thereunder, expiration of the statute of
limitations applicable to such claim.
16. Put Option. Buyer grants Seller the option ("Put Option") to put
and sell to Buyer for a price of Seventeen Million and No/100 Dollars
($17,000,000.00) that certain real property commonly known as "the
Greenhills Property" and described on EXHIBIT "D" attached hereto
("Greenhills Property"). Seller shall exercise the Put Option, if at all,
by delivering written notice of such exercise ("Option Exercise Notice") to
Buyer on or before the first (1st) anniversary of the Close of Escrow.
Within ten (10) business days following Buyer's receipt of the Option
Exercise, Buyer and Seller shall enter into a purchase agreement for the
Greenhills Property ("GP Purchase Agreement") which purchase agreement
shall be in form and substance identical to this Agreement except (i) the
"Property" shall be the Greenhills property, (ii) the purchase price shall
be as specified in this Paragraph 16, (iii) no additional put option shall
be included, (iv) there shall be no Seller leaseback, and (v) the "Books
and Records" to be delivered or made available to Buyer by Seller shall be
as set forth in Exhibit "F" attached hereto. Notwithstanding anything to
the contrary herein, Buyer's obligation to purchase the Greenhills Property
following Seller's exercise of the Put Option shall remain subject to the
contingencies and closing conditions set forth in the GP Purchase Agreement
including, without limitation, contingencies relating to Buyer's review and
investigation of the Greenhills Property. The provisions of this Paragraph
16 shall survive the Close of Escrow, but shall not survive any termination
of this Agreement prior to the Close of Escrow.
17. Broker's Commission.
17.1 Buyer and Seller acknowledge that The Williams Company
represents both Buyer and Seller in connection with this transaction. If,
and only if escrow closes under this Agreement, Seller shall pay The
Williams Company a consulting fee as specified in a separate agreement
between such parties.
17.2 Other than the consultant set forth in Paragraph 17.1 above,
Buyer and Seller each represent to the other that neither has had any
dealings with any person, firm, broker, consultant or finder in connection
with the negotiation of this Agreement and/or the consummation of the
purchase and sale contemplated hereby, and no broker or other person, firm,
consultant or entity is entitled to any commission or finder's fee or other
compensation in connection with this transaction. Buyer and Seller do each
hereby indemnify, defend and hold the other harmless from and against any
costs, expenses or liability for compensation, commissions or charges that
may be claimed by any broker, finder or other similar party, by reason of
any dealings or actions of the indemnifying party.
18. MISCELLANEOUS
18.1 Definition of Environmental Laws and Hazardous Material.
18.1.1 Environmental Laws. "Environmental Laws" shall
mean any and all present and future federal, state and local law (whether
under common law, statute, rule, ordinance, agreement, regulation or
otherwise), requirement under any permit issued with respect thereto, and
other requirements of agencies having jurisdiction thereunder relating to
the protection of human health or the environment, including (without
limitation) the Federal Insecticide, Fungicide, and Rodenticide Act 7
U.S.C. Section 136, et seq.; the Toxic Substances Control Act, 15 U.S.C.
Section 2601, et seq.; Federal Asbestos Hazard Emergency Response Act, 15
U.S.C. Section 2641 et seq.; the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601, et seq.
("CERCLA"); the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901 et seq. ("RCRA"); the Federal Water Pollution Prevention and
Control Act, 33 U.S.C. Section 1251 et seq. (the "Clean Water Act"); the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1801. et seq.;
the Solid Waste Disposal Act, 42 U.S.C. Section 6901, et seq.; the Federal
Water Pollution Control Act, 33 U.S.C. Section 1321; 42 U.S.C. Section 7401
et seq. (the "Clean Air Act"); the California Hazardous Waste Control Act,
Cal. Health & Safety Code ("H.&S.C.") Section 25100 et seq.; the California
Hazardous Substance Account Act, H.& S.C. Section 25300 et seq.; the
California Safe Drinking Water and Toxic Enforcement Act, H.& S.C. Section
25249.5, et seq. ("Proposition 65"); the California Hazardous Waste
Management Act, H.&S.C. Section 25170.1 et seq.; H.&S.C. Section 25501 at
seq. (Hazardous Materials Response Plans and Inventory); the Porter-Cologne
Water Control Act, Cal. Water Code Section 13000 et seq.; H.&S.C. Section
25280, et seq. (Underground Storage of Hazardous Substances); H.&S.C.
Section 25915 et seq. (the "Connelly Act"); H.&S.C. Section 25359.7;
H.&S.C. Section 2595 et seq.; Cal. Labor Code Section 6501.5 et seq.; and
Title 22 of the California Code of Regulations; all as amended to the date
hereof.
18.1.2 Hazardous Material. "Hazardous Material" shall
include any chemical, compound, material, mixture or substance which is now
or hereafter defined or listed in, or otherwise classified pursuant to, any
Environmental Law as a "hazardous substance," "hazardous material,"
"reproductive toxicant,""hazardous waste," "extremely hazardous waste,"
"infectious waste," "biohazardous waste," "medical waste," "toxic
substance," "toxic pollutant", "pollutant", "contaminant" or any other
formulation intended to define, list, or classify substances by reason of
deleterious properties to human health, safety or the environment, such as
ignitability, corrosivity, reactivity, carcinogenicity, radioactivity or
toxicity, including all petroleum hydrocarbon, petroleum-derived material,
natural gas, natural gas liquids, liquified natural gas, or synthetic gas
usable for fuel (or mixtures of natural gas and such synthetic gas),
asbestos and those substances listed in the United States Department of
Transportation Table (49 CFR 172.101, as amended).
18.2 Definition of Business Day. For purposes of this Agreement,
"business day" means any day other than Saturday, Sunday or a holiday
observed by national or federally chartered banks. Any event specified to
occur on a non-business day shall be extended automatically to the end of
the first business day thereafter.
18.3 Binding Effect. Subject to the restrictions on assignment
contained in Paragraph 19.4, this Agreement shall be binding on and shall
inure to the benefit of the parties to it and their respective legal
representatives, successors and assigns.
18.4 Assignment. Buyer shall have the right to assign or
delegate its rights hereunder (i) without the need for Seller's consent, to
another person or entity with respect to which ScanlanKemperBard Companies
has an economic interest in the profits and losses and which, either
directly or through its principals, has at least five (5) years experience
in the operations and maintenance of office buildings or (ii) if Seller's
prior written consent is obtained, to any other person or entity
("Designee"), provided that no assignment, delegation, or other transfer
shall be effective against Seller unless the Designee has assumed, in
writing, in a form reasonably acceptable to Seller, all of Buyer's rights
and duties hereunder, and no such assignment, delegation, or other transfer
shall release the Buyer of its obligations under this Agreement. Buyer
shall not have the right to make any partial assignment, delegation or
other transfer of its rights, duties, and obligations under this Agreement.
Seller shall not assign this Agreement.
18.5 Severability. If any term, covenant, provision, paragraph
or condition of this Agreement shall be illegal, such illegality shall not
invalidate the whole Agreement, but, to the extent permitted by law, the
Agreement shall be construed to give effect to the intent manifested by the
portion held inoperative or invalid and the rights and obligations of the
parties shall be construed and enforced accordingly.
18.6 Entire Understanding. Except as provided in this paragraph,
this Agreement represents the entire understanding of Buyer and Seller and
supersedes all prior and concurrent written or oral agreements or
representations, if any, relative to the purchase of the Property.
18.7 Amendments. This Agreement may not be modified, changed or
supplemented except by written instrument signed by both parties.
18.8 California Law. The interpretation and performance of this
Agreement shall be governed by the laws of the State of California applied
to agreements to be performed entirely within the State of California by
residents of the State of California.
18.9 Waiver. Other than deemed waivers provided for herein, all
waivers by either party shall be in writing. The waiver by either party of
any breach of any term, covenant or condition of this Agreement shall not
be deemed a waiver of such term, covenant or condition or any subsequent
breach of the same or any other term, covenant or condition of this
Agreement.
18.10 Notices. Any and all notices or other communication
required or permitted by this Agreement or by law to be served on or given
to a party hereto by the other party shall be in writing and given
personally (including overnight courier), by facsimile transmission
(provided a copy of such notice is given by one of the other means
described herein within one day following such notice sent by facsimile
transmission) or by registered or certified mail (postage fully prepaid)
addressed as follows:
To Seller: Inprise Corporation
100 Enterprise Way
Scotts Valley, California 95066
Attention: Hobey Birmingham
Telephone: 831-431-1515
Facsimile: 831-431-4190
Copy to: Berliner Cohen
10 Almaden Blvd., 11th Floor
San Jose, California 95113
Attention: Sam L. Farb, Esq.
Telephone: 408-286-5800
Facsimile: 408-998-5388
To Buyer: c/o ScanlanKemperBard Companies
2650 Pacwest Center
1211 SW Fifth Avenue
Portland, Oregon 97204
Attention: Todd M. Gooding
Telephone: 503-220-2600
Facsimile: 503-220-2648
Copy to: Kaye, Scholer, Fierman, Hays & Handler, LLP
1999 Avenue of the Stars, Suite 1600
Los Angeles, CA 90067
Attention: Barry H. Lawrence, Esq.
Telephone: 310-788-1010
Facsimile: 310-788-1200
Escrow Chicago Title Company
Holder: [address to be provided]
San Jose, California
Attention: [to be provided]
Telephone: [to be provided]
Facsimile: [to be provided]
Either party may change such address by written notice to the other. Any
notice delivered as described above shall be deemed received on the date of
delivery. Buyer and Seller hereby agree that notices may be given
hereunder by the parties' respective counsel and that, if any communication
is to be given hereunder by Buyer's or Seller's counsel, such counsel may
communicate directly with all principals as required to comply with the
provisions of this Section.
18.11 Captions. The captions inserted herein are inserted
only as a matter of convenience and for reference and in no way define,
limit or describe the scope of this Agreement or the intent of any of the
provisions hereof.
18.12 Exhibits. All exhibits and schedules referred to
herein are incorporated by reference as though fully set forth herein.
18.13 Attorneys' Fees. Should any party institute any
action, proceeding, suit, arbitration, appeal or other similar proceeding
or other non-judicial dispute resolution mechanism ("Action") to enforce or
interpret this Agreement or any provision hereof, for damages by reason of
any alleged breach of this Agreement or of any provision hereof, or for a
declaration of rights hereunder, the prevailing party in such Action shall
be entitled to receive from the other party(s) all reasonable attorneys'
fees, accountants' fees, expert witness fees, and any and all other similar
fees, costs and expenses incurred by the prevailing party in connection
with the Action and preparations therefor ("Fees"). If any party files for
protection under, or voluntarily or involuntarily becomes subject to, any
chapter of the United States Bankruptcy Code or similar state insolvency
laws, any other party shall be entitled to any and all Fees incurred to
protect such party's interest and other rights under this Agreement,
whether or not such action results in a discharge.
18.14 Additional Cooperation. Seller and Buyer agree to
execute such additional documents or take such additional action, without
cost or expense as may be reasonably necessary or desirable to carry out
the provisions of this Agreement or to further perfect the conveyance,
transfer and assignment of the Property to Buyer. This provision survives
the Close of Escrow.
18.15 Confidentiality. Seller and Buyer agree that neither
Seller nor Buyer shall disclose to any third party the Purchase Price or
the non-public terms and conditions of this Agreement. This provision
shall not limit disclosure to the Escrow Holder, to Buyer's prospective
partners or lenders, or to the agents, consultants and attorneys retained
by Seller and Buyer in connection with this transaction or to the extent
that such disclosure is reasonably appropriate to facilitate the
consumption of the transactions contemplated by this Agreement or to whom
disclosure is reasonable in the performance of services for or on behalf of
Buyer or Seller, or disclosure required by applicable laws, securities law
compliance or other compliance due to Seller being a publicly-traded
corporation, legal process or Buyer's or Seller's efforts to enforce its
rights under this Agreement.
18.16 Consent to Jurisdiction. Seller and Buyer consent to
suit with respect to this Agreement and the transaction contemplated
hereby, and accept the jurisdiction of the Superior Court for the County of
Santa Cruz, California, and the U.S. District Court for the Northern
District of California, and the courts to which appeals would be taken from
each of the foregoing.
18.17 Counterparts. This Agreement may be executed and
delivered by fax and in counterparts, each of which when executed shall be
deemed an original and all of which counterparts taken together shall
constitute but one and the same instrument. Signature pages may be
detached from the counterparts and attached to a single copy of this
Agreement to form one document.
18.18 Revocation. If this Agreement is presented to Seller
by Buyer with signatures on behalf of Buyer, Buyer may revoke this
Agreement by written notice from Buyer to Seller at any time prior to
Seller delivering an executed copy of this Agreement to Buyer. Upon such
revocation, the Initial Deposit (if delivered by Buyer) shall be returned
to Buyer and Buyer shall have no further obligation in connection with this
Agreement.
18.19 Time Of Essence. Time is of the essence in the
performance of the obligations hereunder and the Close of Escrow.
18.20 Exclusivity. In view of the substantial time and
expense which Buyer anticipates investing in preparing for the acquisition
of the Property, Seller agrees not to enter into any purchase and sale
agreements relating to the Property, unless and until the earlier of (i)
any termination of this Agreement or (ii) January 30, 2000.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first written above.
SELLER:
INPRISE CORPORATION, a Delaware
corporation
By /s/ Hobart McK. Birmingham
-----------------------------------
Print Name: Hobart McK. Birmingham
Title: Chief Administrative Officer
BUYER:
SCANLANKEMPERBARD COMPANIES, an
Oregon corporation
By /s/ Todd M. Gooding
------------------------------------
Print Name: Todd M. Gooding
Title: Vice President
EXHIBIT "A"
LEGAL DESCRIPTION OF THE REAL PROPERTY
EXHIBIT A
OLD REPUBLIC TITLE COMPANY
ORDER NO. 202564-V
UPDATE I
The land referred to in this Report is situated in the County of Santa
Cruz, City of Scotts Valley, State of California, and is described as
follows:
Parcel 1 as shown upon that certain Parcel Map filed for record on
December 15, 1994 in Volume 53, Page 36 of Parcel Maps, Records of
Santa Cruz County.
Excepting therefrom all minerals, oil, gases and other
hyrcarbons by whatsoever name known that may be within or under
the parcel of land herein described without, however the right to
drill, dig or mine through the surface thereof, as contained in
the Deed from the State of California, to Mary Jo Martindale, a
widow, recorded June 11, 1963 in Volume 1546, Page 541, Official
Records of Santa Cruz County.
Also excepting therefrom all minerals, oils, gases and other
hydrocarbons, as reserved in the deed from the State of
California, to Tommy Barnett, recorded June 11, 1963 in Volume
1546, Page 545, Official Records, Santa Cruz County.
Assessor's Parcel Number: 024-031-16
EXHIBIT A (CONTINUED) OLD REPUBLIC TITLE COMPANY
- ---------------------
ORDER NO. 208782-V
The land referred to in this Report is situated in the County of Santa
Cruz, City of Scotts Valley, State of California, and is described as
follows:
Parcel 2 as shown upon that certain Parcel Map filed for record on December
15, 1994 in Volume 53, Page 36 of Parcel Maps, Records of Santa Cruz
County.
Assessor's Parcel Number: 024-031-17
EXHIBIT "B"
BOOKS AND RECORDS
EXHIBIT "C"
TERMS OF SELLER'S LEASE
1. Landlord: ScanlanKemperBard Companies, or designee.
2. Tenant: Inprise Corporation.
3. Square Feet: 148,144 SF - See Exhibit B-1
4. Additional Space: Within twelve months of closing, tenant shall have
a one-time option to lease an additional 56,050 SF
located in Modules C-1 (Half floor), C-2 and C-3,
at a rental $2.30 per SF per month, all other
terms shall remain the same. If such option is
exercised within 10 days prior to closing Landlord
will pay Tenant a $1.5 million move in fee. If
such option is exercised within six months after
closing Landlord will pay Tenant a $500,000
million move in fee. If tenant exercises option
after six months, tenant will not be entitled to a
move in fee.
5. Initial Term: Ten (10) years.
6. Extension Terms: Two (2) periods of five (5) years.
7. Monthly Rent
Schedule: $2.00 per SF per month.
The Minimum Rent shall be increased at the
commencement of each lease anniversary by 3.0%.
8. Guarantee and
Security Deposit: At lease execution, Inprise shall produce a
security deposit or letter of credit (Deposit)
equal to 12 months' rent. Such Deposit will be
reduced to one month's rent when Inprise can
produce a BB or better credit rating from Standard
& Poors or an equivalent rating agency for a
period of 18 consecutive months.
9. Expense Pass
Through: Tenant's pro rata share of all increases in
operating expenses including, but not limited to,
property taxes, property maintenance, landscaping,
janitorial, insurance and management expenses over
the operating expenses for 2000. Capital
Improvements during the lease term will be
amortized over their useful life and passed
through to Tenant based on Tenant's pro rata
share.
10. Subleasing: Tenant shall not sublease any space in the
building without Landlord consent. Landlord will
not approve any subleases for the tenant until one
of the following occurs, two years have passed or
the balance of the Landlord space 95% leased and
occupied by other tenants, whichever is earlier.
Landlord will not unreasonably withhold consent
provided the proposed sublease terms are equal to
market terms. Tenant shall bear all costs
associated with subleasing space including
Landlord's legal review. Rents received in excess
of Tenant's rents will be split 50% to Landlord
and 50% to Tenant. Once sublease tenant is
approved by Landlord, in occupancy and paying
rent, Tenant shall be released from its rent
obligations for sublease tenant's space.
11. Storage Space: Landlord shall lease to tenant 29,816 SF of storage
space for a period of two years. The rental rate
for the first year shall be $0.50 per SF per month
for the first year and $0.515 per SF per month for
the second year.
12. Cafeteria Subsidy: Tenant agrees to pay landlord $6.75 per employee
per month for every employee that works on the
premises as a subsidy for the cafeteria. Such
subsidy shall remain in place until the cafeteria
has shown a profit or achieves "breakeven" for
twelve consecutive months.
13. Other: The leases will contain other provisions,
establishing the rights and obligations of the
Landlord and Tenant, as are typically included in
commercial retain or office leases.
EXHIBIT "D"
FORM OF TENANT ESTOPPEL CERTIFICATE
To: ____________________________
____________________________
____________________________
____________________________
Attn:______________________
Re: Lease Dated:________________________________
Landlord:___________________________________
Tenant:_____________________________________
Premises: ______________ Square Feet,
100 Enterprise Way, Suite _____
Scotts Valley, CA.
The undersigned tenant (herein called "Tenant") is the lessee of
certain space (the "Premises") located at the above-captioned address (the
"Property") under the terms of a lease (the "Lease") with __________________,
a California _____________________ ("Landlord"). Landlord intends to transfer
the Property and assign the Landlord's interest in the Lease to
_____________________________________________________ ("Buyer").
At Buyer's request, and knowing that Buyer will rely upon the accuracy
of the information contained herein in connection with Buyer's acquisition
of the Property, Tenant certifies to Buyer as follows:
1. The Lease is dated _______________ 19___. A true, correct and
complete copy of the Lease is attached hereto and incorporated herein by
this reference.
2. The commencement date of the Lease is _______________, 19__, and
the expiration date of the current term of the Lease is ___________ 19_.
The commencement of occupancy was ________________, 19____.
3. (a) The fixed monthly rental presently payable under the Lease is
$_________ and has been paid through ___________, ____.
(b) All additional rent (including, as applicable, operating costs,
common area expenses, taxes, utilities, adjusted base rents, inflation
adjustments, percentage rents, etc.) payable under the terms of the Lease
has been paid through _______________, 19__, and the Tenant is not
presently contesting any amount or Tenant's share thereof.
(c) Tenant has paid all taxes, charges, maintenance, insurance,
utilities and other costs or expenses payable by Tenant under the terms and
provisions of the Lease and no amounts remain unpaid as of the date hereof.
4. The amount of security deposit being held by Landlord is $_______.
No interest is or will in the future become due or payable in connection
with the security deposit.
5. The Lease is in full force and effect and is binding and
enforceable against Tenant in accordance with its terms.
6. The Lease constitutes the entire agreement between Landlord and
Tenant with respect to the Premises and the Lease has not been amended,
modified, supplemented, renewed or otherwise changed in any way, and there
are no agreements or obligations between Tenant and Landlord, either oral
or written, to amend, renew, supplement, change or modify the terms or
provisions of the Lease.
7. All work and tenant improvements required by the Lease to be
completed have been completed in the manner and in accordance with the
terms, conditions and covenants set forth in the Lease to the satisfaction
of Tenant, and no payments are required to be made to Tenant in connection
therewith. Tenant is not aware of any defects in the Premises or in the
Building of which the Premises are a part.
8. Tenant has accepted the Premises and is in full and complete
possession thereof.
9. Tenant has not assigned, sublet, or encumbered its interest in the
Lease.
10. Tenant has performed no alterations or works of improvement upon
the Premises for which any contractor, workman or supplier is still unpaid
or for which any mechanic or materialman may be entitled to file a lien
against the Premises.
11. Tenant claims no offsets, set-offs, rebates, concessions, "free
rent" or defenses to the enforcement of the agreements, terms, covenants or
conditions of the Lease, including, without limitation, with respect to any
base rent, additional rent, or other amount payable under the terms of the
Lease. No rent under the Lease has been paid other than as is currently
due, and there exist no credits or allowances to which Tenant is entitled.
12. Neither Landlord nor, to the best of Tenant's knowledge, Tenant is
in default in the performance or observance of any of its obligations under
the Lease, and no event has occurred and no conditions exist that, with the
giving of notice or the passage of time, or both, would constitute a
default under the terms of the Lease.
13. Tenant has no option to renew the Lease, or to lease any other
space in, or to purchase all or any part of, the Property, except as set
forth in the Lease.
Tenant understands that Landlord intends to convey the Property and
assign the Lease to Buyer, and that Buyer will rely upon this certificate
in deciding whether or not to purchase the Property. Notice of acceptance
of this certificate by Buyer is waived. Tenant agrees that this Certificate
shall be binding upon the Tenant and its successors and assigns, or heirs
and personal representatives, as applicable, and shall inure to the benefit
of Buyer, its successors and assigns.
Dated:_______________________
TENANT
By______________________________
________________________________
[Printed Name and Title]
EXHIBIT E
(GREENHILLS PROPERTY)
(LEGAL DESCRIPTION)
PARCEL ONE
Situate in the City of Scotts Valley, County of Santa Cruz, State of
California and described as follows:
Lots 3 and 4, of the parcel map, in the City of Scotts Valley, County of
Santa Cruz, State of California, per the map filed February 3, 1982 in Book
40, page 17 of parcel maps, in the office of the County Recorder of said
County.
PARCEL TWO
Situate in the City of Scotts Valley, County of Santa Cruz, State of
California and described as follows:
As appurtenant to parcel one above, an easement for the general purposes of
use and distribution of water from the well and access thereto, as
contained in that certain grant of easement and maintenance agreement
recorded May 7, 1987 in Book 4155 page 686 Official Records of Santa Cruz
County.
PARCEL THREE
Situate in the City of Scotts Valley, County of Santa Cruz, State of
California and described as follows:
As appurtenant to parcel one above, an easement for the general purposes of
pedestrian and vehicular ingress and egress, and access necessary to
maintain such easement as contained in that certain "Grant of Easement
Agreement", recorded May 7, 1987 in Book 4155 Page 663 Official Records of
Santa Cruz County.
EXHIBIT "F"
BOOKS AND RECORDS FOR GREENHILLS PROPERTY
Exhibit 99.2
FIRST AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
THIS FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE AND JOINT
ESCROW INSTRUCTIONS (this "Amendment") is made as of the 27th day of
January, 2000, by and between Inprise Corporation ("Seller") and
ScanlanKemperBard Companies, an Oregon corporation ("Buyer").
RECITALS
A. Buyer and Seller are parties to an Agreement of Purchase and Sale
and Joint Escrow Instructions, dated as of December 30, 1999 ("Original
Agreement"), pursuant to which Seller agreed to sell to Buyer, and Buyer
agreed to purchase from Seller, certain real and personal property located
at 100 Enterprise Way, Scotts Valley, California, and certain related
rights, all as more particularly described in the Original Agreement
(collectively, the "Property"); and
B. Buyer and Seller desire to amend the Original Agreement as provided
in this Amendment.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and conditions contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller and Buyer agree as follows:
1. Definitions. Capitalized terms that are used but not defined in
this Amendment, shall have the respective definitions given to such terms
in the Original Agreement. As used herein, the term "Agreement" shall mean
the Original Agreement, as amended by this Amendment and any subsequent
amendments.
2. Extension of Contingency Deadline. The first (1st) sentence of
Section 4.1 of the Original Agreement is hereby deleted and, in lieu
thereof, the following shall be inserted: "Except as otherwise provided in
this Agreement, Buyer shall have until 5 p.m. (Pacific Time) on February 8,
2000 ("Contingency Deadline"), to review all materials provided or made
available by Seller to Buyer pursuant to the terms of this Agreement, to
review the state of title to the Property, to negotiate the Seller's Lease
and to perform such other due diligence with respect to the Property as
Buyer determines in its sole discretion to perform."
3. Certain Leasing Costs. Section 9.6 of the Original Agreement is
hereby deleted and, in lieu thereof, the following shall be inserted:
"9.6 Except as otherwise provided in the remainder of this Section
9.6, Seller shall be responsible for all commissions and tenant
improvement costs (and allowances) with respect to leases entered
into by Seller prior to the Close of Escrow. Notwithstanding the
foregoing, in the event Seller, after the Opening of Escrow and
prior to the Close of Escrow hereunder, enters into any lease(s)
covering any portion of the Improvements, and such applicable
lease(s) and associated work letter(s) and commission agreement(s)
are approved by Buyer (whether or not such approval is otherwise
required under this Agreement), then Buyer shall be responsible
for a portion ("Buyer's Share") of the total leasing commissions
and tenant improvement costs (or allowances) in connection with
such applicable lease in the proportion that the amount of base
monthly rent to be paid under such lease (during the initial term
of such lease) accruing after the Close of Escrow bears to the
total amount of base monthly rent to be paid under the applicable
lease (during the initial term of such lease). To the extent
Buyer's Share of any leasing commissions and tenant improvement
costs (or allowances) are due and actually paid by Seller prior to
the Close of Escrow, Buyer shall reimburse Seller such amount in
full at the Close of Escrow. To the extent Buyer's Share of any
leasing commissions and tenant improvement costs (or allowances)
are not due and payable until after the Close of Escrow, Buyer
shall pay such costs directly to the parties to whom such costs
are owing as they become due and payable."
4. No Other Changes. Except as expressly modified or amended by this
Amendment, the Original Agreement shall remain in full force and effect and
be binding upon the parties in accordance with its terms.
5. Counterparts. This Amendment may be executed in two or more
counterparts each of which shall be an original and all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
SELLER:
INPRISE CORPORATION, a Delaware
corporation
By /s/ Hobart McK. Birmingham
----------------------------------
Print Name: Hobart McK. Birmingham
Title: CAO
BUYER:
SCANLANKEMPERBARD COMPANIES, an
Oregon corporation
By /s/ Todd M. Gooding
----------------------------------
Print Name: Todd M. Gooding
Title: Vice President
Exhibit 99.3
SECOND AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
THIS SECOND AMENDMENT TO AGREEMENT OF PURCHASE AND SALE AND JOINT
ESCROW INSTRUCTIONS (this "Amendment") is made as of the 8th day of
February, 2000, by and between Inprise Corporation ("Seller") and
ScanlanKemperBard Companies, an Oregon corporation ("Buyer").
RECITALS
A. Buyer and Seller are parties to an Agreement of Purchase and Sale
and Joint Escrow Instructions, dated as of December 30, 1999, as amended by
a First Amendment to Agreement of Purchase and Sale and Joint Escrow
Instructions, dated as of January 27, 2000 ("Original Agreement"), pursuant
to which Seller agreed to sell to Buyer, and Buyer agreed to purchase from
Seller, certain real and personal property located at 100 Enterprise Way,
Scotts Valley, California, and certain related rights, all as more
particularly described in the Original Agreement (collectively, the
"Property"); and
B. Buyer and Seller desire to amend the Original Agreement as provided
in this Amendment.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and conditions contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged. Seller and Buyer agree as follows:
1. Definitions. Capitalized terms that are used but not defined in
this Amendment, shall have the respective definitions given to such terms
in the Original Agreement. As used herein, the term "Agreement" shall mean
the Original Agreement, as amended by this Amendment and any subsequent
amendments.
2. Extension of Contingency Deadline. The first (1st) sentence of
Section 4.1 of the Original Agreement is hereby deleted and, in lieu
thereof, the following shall be inserted: "Except as otherwise provided in
this Agreement, Buyer shall have until 5 p.m. (Pacific Time) on February
11, 2000 ('Contingency Deadline'), to review all materials provided or made
available by Seller to Buyer pursuant to the terms of this Agreement, to
review the state of title to the Property, to negotiate the Seller's Lease
and to perform such other due diligence with respect to the Property as
Buyer determines in its sole discretion to perform."
3. No Other Changes Except as expressly modified or amended by this
Amendment, the Original Agreement shall remain in full force and effect and
be binding upon the parties in accordance with its terms.
4. Counterparts. This Amendment may be executed in two or more
counterparts each of which shall be an original and all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
SELLER:
INPRISE CORPORATION, a Delaware
corporation
By /s/ Hobart McK. Birmingham
---------------------------------
Print Name: Hobart McK. Birmingham
Title: Chief Administrative Officer
BUYER:
SCANLANKEMPERBARD COMPANIES,
an Oregon corporation
By /s/ Todd M. Gooding
---------------------------------
Print Name: Todd M. Gooding
Title: Vice President
Exhibit 99.4
THIRD AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
THIS THIRD AMENDMENT TO AGREEMENT OF PURCHASE AND SALE AND JOINT
ESCROW INSTRUCTIONS (this "Amendment") is made as of the 11th day of
February, 2000, by and between Inprise Corporation ("Seller") and
ScanlanKemperBard Companies, an Oregon corporation ("Buyer").
RECITALS
A. Buyer and Seller are parties to an Agreement of Purchase and Sale
and Joint Escrow Instructions, dated as of December 30, 1999, as amended by
a First Amendment to Agreement of Purchase and Sale and Joint Escrow
Instructions, dated as of January 27, 2000, and a Second Amendment to
Agreement of Purchase and Sale and Joint Escrow Instructions, dated as of
February 8, 2000 ("Original Agreement"), pursuant to which Seller agreed to
sell to Buyer, and Buyer agreed to purchase from Seller, certain real and
personal property located at 100 Enterprise Way, Scotts Valley, California,
and certain related rights, all as more particularly described in the
Original Agreement (collectively, the "Property"); and
B. Buyer and Seller desire to amend the Original Agreement as
provided in this Amendment.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and conditions contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller and Buyer agree as follows:
1. Definitions. Capitalized terms that are used but not defined in
this Amendment, shall have the respective definitions given to such terms
in the Original Agreement. As used herein, the term "Agreement" shall mean
the Original Agreement, as amended by this Amendment and any subsequent
amendments.
2. Extension of Contingency Deadline. The first (1st) sentence of
Section 4.1 of the Original Agreement is hereby deleted and, in lieu
thereof, the following shall be inserted: "Except as otherwise provided in
this Agreement, Buyer shall have until 5 p.m. (Pacific Time) on February
15, 2000 ('Contingency Deadline'), to review all materials provided or made
available by Seller to Buyer pursuant to the terms of this Agreement, to
review the state of title to the Property, to negotiate the Seller's Lease
and to perform such other due diligence with respect to the Property as
Buyer determines in its sole discretion to perform."
3. No Other Changes. Except as expressly modified or amended by
this Amendment, the Original Agreement shall remain in full force and
effect and be binding upon the parties in accordance with its terms.
4. Counterparts. This Amendment may be executed in two or more
counterparts each of which shall be an original and all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
SELLER:
INPRISE CORPORATION, a Delaware
corporation
By /s/ Hobart McK. Birmingham
--------------------------------
Print Name: Hobart McK. Birmingham
Title: CAO
BUYER:
SCANLANKEMPERBARD COMPANIES, an
Oregon corporation
By /s/ Todd M. Gooding
------------------------------
Print Name: Todd M. Gooding
Title: Vice President
Exhibit 99.5
FOURTH AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
THIS FOURTH AMENDMENT TO AGREEMENT OF PURCHASE AND SALE AND JOINT
ESCROW INSTRUCTIONS (this "Amendment") is made as of the 15th day of
February, 2000, by and between Inprise Corporation ("Seller") and
ScanlanKemperBard Companies, an Oregon corporation ("Buyer").
RECITALS
A. Buyer and Seller are parties to an Agreement of Purchase and
Sale and Joint Escrow Instructions, dated as of December 30, 1999, as
amended by a First Amendment to Agreement of Purchase and Sale and Joint
Escrow Instructions, dated as of January 27, 2000, a Second Amendment to
Agreement of Purchase and Sale and Joint Escrow Instructions, dated as of
February 8, 2000, and a Third Amendment to Agreement of Purchase and Sale
and Joint Escrow Instructions, dated as of February 11, 2000 ("Original
Agreement"), pursuant to which Seller agreed to sell to Buyer, and Buyer
agreed to purchase from Seller, certain real and personal property located
at 100 Enterprise Way, Scotts Valley, California, and certain related
rights, all as more particularly described in the Original Agreement
(collectively, the "Property"); and
B. Buyer and Seller desire to amend the Original Agreement as
provided in this Amendment.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and conditions contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller and Buyer agree as follows:
1. Definitions. Capitalized terms that are used but not defined
in this Amendment, shall have the respective definitions given to such
terms in the Original Agreement. As used herein, the term "Agreement" shall
mean the Original Agreement, as amended by this Amendment and any
subsequent amendments.
2. Extension of Contingency Deadline. The first (1st) sentence of
Section 4.1 of the Original Agreement is hereby deleted and, in lieu
thereof, the following shall be inserted: "Except as otherwise provided in
this Agreement, Buyer shall have until 5 p.m. (Pacific Time) on February
16, 2000 ('Contingency Deadline'), to review all materials provided or made
available by Seller to Buyer pursuant to the terms of this Agreement, to
review the state of title to the Property, to negotiate the Seller's Lease
and to perform such other due diligence with respect to the Property as
Buyer determines in its sole discretion to perform."
3. No Other Changes. Except as expressly modified or amended
by this Amendment, the Original Agreement shall remain in full force and
effect and be binding upon the parties in accordance with its terms.
4. Counterparts. This Amendment may be executed in two or more
counterparts each of which shall be an original and all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first above written.
SELLER:
INPRISE CORPORATION, a Delaware
corporation
By /s/ Hobart McK. Birmingham
---------------------------------
Print Name: Hobart McK. Birmingham
Title: Chief Administrative Officer
BUYER:
SCANLANKEMPERBARD COMPANIES, an
Oregon corporation
By /s/ Robert Scanlan
---------------------------------
Print Name: Robert Scanlan
Title:
Exhibit 99.6
FIFTH AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
THIS FIFTH AMENDMENT TO AGREEMENT OF PURCHASE AND SALE AND JOINT
ESCROW INSTRUCTIONS (this "Amendment") is made as of the 16th day of
February, 2000, by and between Inprise Corporation ("Seller") and
ScanlanKemperBard Companies, an Oregon corporation ("Buyer").
RECITALS
A. Buyer and Seller are parties to an Agreement of Purchase and Sale
and Joint Escrow Instructions, dated as of December 30, 1999, as amended by
a First Amendment to Agreement of Purchase and Sale and Joint Escrow
Instructions, dated as of January 27, 2000, a Second Amendment to Agreement
of Purchase and Sale and Joint Escrow Instructions, dated as of February 8,
2000, a Third Amendment to Agreement of Purchase and Sale and Joint Escrow
Instructions, dated as of February 11, 2000, and a Fourth Amendment to
Agreement of Purchase and Sale and Joint Escrow Instructions, dated as of
February 15, 2000 ("Original Agreement"), pursuant to which Seller agreed
to sell to Buyer, and Buyer agreed to purchase from Seller, certain real
and personal property located at 100 Enterprise Way, Scotts Valley,
California, and certain related rights, all as more particularly described
in the Original Agreement (collectively, the "Property"); and
B. Buyer and Seller desire to amend the Original Agreement as
provided in this Amendment.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and conditions contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller and Buyer agree as follows:
1. Definitions. Capitalized terms that are used but not defined in
this Amendment, shall have the respective definitions given to such terms
in the Original Agreement. As used herein, the term "Agreement" shall mean
the Original Agreement, as amended by this Amendment and any subsequent
amendments.
2. Extension of Contingency Deadline. The first (1st) sentence of
Section 4.1 of the Original Agreement is hereby deleted and, in lieu
thereof, the following shall be inserted: "Except as otherwise provided in
this Agreement, Buyer shall have until 5 p.m. (Pacific Time) on February
17, 2000 ('Contingency Deadline'), to review all materials provided or made
available by Seller to Buyer pursuant to the terms of this Agreement, to
review the state of title to the Property, to negotiate the Seller's Lease
and to perform such other due diligence with respect to the Property as
Buyer determines in its sole discretion to perform."
3. No Other Changes. Except as expressly modified or amended by
this Amendment, the Original Agreement shall remain in full force and
effect and be binding upon the parties in accordance with its terms.
4. Counterparts. This Amendment may be executed in two or more
counterparts each of which shall be an original and all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
SELLER:
INPRISE CORPORATION, a Delaware
corporation
By /s/ Hobart McK. Birmingham
--------------------------------
Print Name: Hobart McK. Birmingham
Title: CAO
BUYER:
SCANLANKEMPERBARD COMPANIES, an
Oregon corporation
By /s/ Todd M. Gooding
-------------------------------
Print Name: Todd M. Gooding
Title: Vice President
Exhibit 99.7
SIXTH AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
THIS SIXTH AMENDMENT TO AGREEMENT OF PURCHASE AND SALE AND JOINT
ESCROW INSTRUCTIONS (this "Amendment") is made as of the 17th day of
February, 2000, by and between Inprise Corporation ("Seller") and
ScanlanKemperBard Companies, an Oregon corporation ("Buyer").
RECITALS
A. Buyer and Seller are parties to an Agreement of Purchase and Sale
and Joint Escrow Instructions, dated as of December 30, 1999, as amended by
a First Amendment to Agreement of Purchase and Sale and Joint Escrow
Instructions, dated as of January 27, 2000, a Second Amendment to Agreement
of Purchase and Sale and Joint Escrow Instructions, dated as of February 8,
2000, a Third Amendment to Agreement of Purchase and Sale and Joint Escrow
Instructions, dated as of February 11, 2000, a Fourth Amendment to
Agreement of Purchase and Sale and Joint Escrow Instructions, dated as of
February 15, 2000, and a Fifth Amendment to Agreement of Purchase and Sale
and Joint Escrow Instructions dated as of February 16, 2000 ("Original
Agreement"), pursuant to which Seller agreed to sell to Buyer, and Buyer
agreed to purchase from Seller, certain real and personal property located
at 100 Enterprise Way, Scotts Valley, California, and certain related
rights, all as more particularly described in the Original Agreement
(collectively, the "Property"); and
B. Buyer and Seller desire to amend the Original Agreement as
provided in this Amendment.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and conditions contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller and Buyer agree as follows:
1. Definitions. Capitalized terms that are used but not defined in
this Amendment, shall have the respective definitions given to such terms
in the Original Agreement. As used herein, the term "Agreement" shall mean
the Original Agreement, as amended by this Amendment and any subsequent
amendments.
2. Entitlements. The following new Section 1.1.6 shall be added to
the Agreement immediately following Section 1.1.5:
"1.1.6 Seller's right, title and interest in and to any
and all rights and entitlements solely to the extent relating to
development of the Real Property (and not the Polo Ranch
property) (collectively, the 'Entitlements') including, without
limitation, (i) Seller's rights solely related to the Real
Property under that certain Owner Participation and Development
Agreement, dated December 25, 1991, by and between Borland
International, Inc., a Delaware corporation and the Redevelopment
Agency of the City of Scotts Valley, a public body, corporate and
politic of the State of California ('Agency'), and the City of
Scotts Valley, a municipal corporation ('City'), as amended from
time to time ('Development Agreement'), (ii) any development fee
credits and other credits toward fees relating to development of
the real property (collectively, 'Fee Credits') including,
without limitation, that certain off-site fee credit of $889,303
referred to in Resolution No. 1539 of the City Counsel of the
City of Scotts Valley and that certain development fee credit of
$288,243 referred to in that certain letter, dated April 28,
1995, from the Planning Director of the City of Scotts Valley to
Borland International (a copy of such Resolution and letter are
attached as Exhibit "A" to the Sixth Amendment to Agreement of
Purchase and Sale and Joint Escrow Instructions, dated as of
February 15, 2000, by and between Buyer and Seller). Prior to
the Close of Escrow, Seller shall, at Seller's expense but with
Buyer's cooperation, exercise commercially reasonable best
efforts to obtain the written consent of the City and Agency to
the assignment of all of Seller's rights to Buyer under the
Development Agreement and the assignment of the Fee Credits to
Buyer (the 'Transfer of Entitlements Consent'). Seller is not
making any representation or warranty that the Fee Credits are
transferable. Buyer shall provide to the City and Agency any and
all documents, including financial statements and/or tax returns,
reasonably requested by the City or Agency in connection with
their review of the assignment of Seller's rights to Buyer under
the Development Agreement."
3. Transfer of Entitlements. Section 3.3 of the Original Agreement
is hereby deleted and, in lieu thereof, the following shall be inserted:
"3.3 At the Close of Escrow, (i) Seller shall transfer its
right, title and interest to the Personal Property pursuant to a
bill of sale (the 'Bill of Sale') in a form to be prepared by
Seller prior to the Contingency Deadline and which shall be
reasonably satisfactory to Buyer, (ii) Seller shall transfer and
assign its right, title and interest in the Leases, and, to the
extent transferable, Approved Contracts and Documents pursuant to
an assignment (the 'Assignment of Leases, Approved Contracts and
Documents') in a form to be prepared by Seller prior to the
Contingency Deadline and which shall be reasonably satisfactory
to Buyer and (iii) Seller shall transfer and assign its right,
title and interest in the Entitlements, and Buyer shall assume
Seller's obligations under the Development Agreement to the
extent related to the Real Property, pursuant to an assignment
(the 'Assignment of Entitlements') in a form to be prepared by
Seller prior to the Contingency Deadline and which shall be
reasonably satisfactory to Buyer. Seller shall exercise good
faith efforts to obtain, at its sole cost and expense, any
consents needed for assignment to Buyer of the Leases, Approved
Contracts, Documents and Entitlements."
4. [Intentionally Omitted.]
5. Additional Buyer's Closing Condition. The following Section
5.1.8 shall be added to the Agreement immediately following Section 5.1.7:
"5.1.8 Transfer of Entitlements Consent. It shall be a
Buyer's Closing Condition that Buyer shall have received the
Transfer of Entitlements Consent, duly executed on behalf of the
City and the Agency."
6. Closing Deliveries. Section 6.1.2 of the Original Agreement is
hereby deleted and, in lieu thereof, the following shall be inserted:
"6.1.2 Two (2) executed counterparts of (i) the
Assignment of Leases, Approved Contracts and Documents, (ii) the
Bill of Sale and (iii) the Assignment of Entitlements."
Section 7.1.2 of the Original Agreement is hereby deleted and, in lieu
thereof, the following shall be inserted:
"7.1.2 Two (2) executed counterparts of (i) the
Assignment of Leases, Approved Contracts and Documents, (ii) the
Bill of Sale and (iii) Assignment of Entitlements."
7. Closing Date. Section 10.3 of the Original Agreement is hereby
deleted and, in lieu thereof, the following shall be inserted:
"10.3 The term 'Closing Date' shall mean the date upon
which the Close of Escrow shall occur, which date shall be
Friday, March 17, 2000, as such date may be extended pursuant to
the terms of this Agreement. The Closing Date shall occur on any
weekday from Tuesday through Friday. If any extension or
postponement of the Closing Date is scheduled for a Monday for
any reason, the Closing Date shall be automatically postponed
until the next business day."
8. Disbursements. A new subsection (b) shall be added to Section
11.1.1 of the Original Agreement as follows, and existing subsection (b)
shall be changed to subsection (c):
"(b) Retain Two Million Five Hundred Thousand Dollars
($2,500,000) of the Purchase Price in the Post-Closing Reserve in
accordance with the provisions of Section 11.2, below."
9. Post-Closing Reserve. The following new Section 11.2 shall be
added to the Agreement immediately following Section 11.1:
"11.2 Post-Closing Reserve.
"11.2.1 Establishment of Reserve. Upon the Close of
Escrow, Two Million Five Hundred Thousand Dollars ($2,500,000.00) of
the Purchase Price shall be retained in Escrow for the purposes
described in this Section 11.2 (the 'Post-Closing Reserve').
"11.2.2 Investing Funds in the Reserve. Escrow Holder
shall initially invest all funds held in the Post-Closing Reserve in
an interest-bearing bank account at a bank that Buyer and Seller
approve. Thereafter Escrow Holder may invest and reinvest the funds
held in the Post-Closing Reserve in bonds, notes, treasury bills or
other securities constituting direct obligations of, or fully
guaranteed by, the United States of America (and provided, further,
that such direct obligations or guarantees, as the case may be, are
entitled to the full faith and credit of the United States
government), or in certificates of deposit issued by Bank or any other
U.S. bank having assets not less than $500,000,000 and net worth not
less than $100,000,000 (provided, however, that not more than
$1,000,000 shall be invested in certificates of deposit in any one
bank without the prior written consent of Buyer and Seller (which may
be granted or withheld in their respective sole discretion). All of
the securities and investments described in the immediately preceding
sentence shall have a maturity of three (3) months or less, and all of
which shall mature on or prior to the second anniversary of the Close
of Escrow (the "Second Anniversary"). All interest, dividends and
other income or proceeds earned on funds in the Post-Closing Reserve
("Reserve Income") shall be allocated/taxed to Seller for all income
tax purposes. Escrow Holder shall disburse to Seller, within five (5)
days following written request by Seller, which request shall not be
made more frequently than once per calendar month, any Reserve Income
in Escrow. Neither Buyer nor Seller shall be liable in any manner to
the other as a result of any investment decision made, or any approval
of or failure to approve any investment decision, with respect to the
Post-Closing Reserve.
"11.2.3 Claims on Reserve.
"11.2.3.1 Entitlement to Funds. After Buyer has
incurred Two Million Five Hundred Thousand Dollars ($2,500,000.00) for
'Stated Expenditures' (as hereinafter defined), Buyer shall be
entitled to draw funds from the Post-Closing Reserve, up to the
maximum amount on deposit therein (exclusive of any Reserve Income),
to pay for, or reimburse itself for, any additional Stated
Expenditures that Buyer may reasonably incur; provided, however, the
maximum aggregate amount of funds that Buyer may draw from the Post-
Closing Reserve for 'Deferred Maintenance Items' (as defined below)
shall be Five Hundred Thousand Dollars ($500,000.00). After Buyer has
incurred $2,500,000 of Stated Expenditures, Buyer shall deliver
written notice to Seller stating that Buyer has incurred such amount
of Stated Expenditures and that Buyer will seek reimbursement for
additional Stated Expenditures (to the extent permitted under this
Agreement) from the Post-Closing Reserve. Such notice shall be
accompanied by reasonable back-up documentation (such as invoices
and/or copies of checks) identifying the Stated Expenditures incurred
to date. As used herein, the term 'Stated Expenditures' means: (1)
any repairs or improvements to, or replacements of, any portion of the
Property to the extent reasonably deemed necessary by Buyer as a
result of any deferred maintenance at the Property as of the Close of
Escrow ("Deferred Maintenance Items"), (2) any tenant improvement
costs or allowances with respect to any space at the Property;
provided, however, that any proposed tenant improvement cost or
allowance in excess of Ten Dollars ($10) per rentable square foot
shall be subject to approval by Seller, which approval shall not be
unreasonably withheld, delayed or conditioned, and which approval
shall be deemed granted if Seller fails to object in writing to such
cost or allowance within five (5) Business Days following delivery to
Seller of notice of such proposed tenant improvement cost or
allowance, (3) any leasing commissions with respect to leases for
space at the Property to the extent paid or payable by or on behalf of
Buyer to independent third parties, and (4) those certain retrofit
costs (including, without limitation the cost of demising space in
Modules A, B and C) as are referred to in that certain letter, dated
January 27, 2000, from Buyer to Seller, a copy of which is attached
as Exhibit "B" to the Sixth Amendment to Agreement of Purchase and
Sale and Joint Escrow Instructions, dated as of February 15, 2000, by
and between Buyer and Seller.
"11.2.3.2 Disbursement Notice. If Buyer believes
in good faith that it is entitled to draw funds from the Post-Closing
Reserve for Stated Expenditures, it shall deliver a written notice
('Disbursement Notice') to Escrow Holder, with a copy to Seller. The
Disbursement Notice shall (i) state the amount of disbursement Buyer
is seeking, (ii) specify the date such disbursement should be made
(which shall be no sooner than three (3) Business Days after the date
the Disbursement Notice is delivered to Escrow Holder), (3) contain
Buyer's statement that Buyer has previously incurred (and has not been
reimbursed for) $2,500,000 of its own funds for Stated Expenditures,
and that the requested disbursement is to pay or reimburse Buyer for
additional Stated Expenditures reasonably incurred by Buyer to the
extent reimbursable under this Section 11.2.3, (4) be signed by Buyer
and (5) be accompanied by copies of reasonable back-up documentation
(such as invoices and/or copies of checks) identifying the
expenditures for which the disbursement will be used and showing that
such expenditures have been paid or are payable. Except as expressly
provided in Section 11.2.3.3, below, Escrow Holder shall disburse
funds from the Post-Closing Reserve to Buyer (or as otherwise directed
by Buyer) in accordance with any Disbursement Notice delivered by
Buyer to Escrow, and Buyer and Seller hereby irrevocably instruct
Escrow Holder to make such disbursement. Escrow Holder shall have no
obligation or right to verify or question the accuracy or sufficiency
of information set forth in or accompanying any Disbursement Notice.
In addition, no consent or further instructions from Seller shall be
required as a condition to any such disbursement and, except as
expressly provided in Section 11.2.3.3, below, such disbursement shall
be made notwithstanding any contrary instructions that may be
delivered by Seller to Escrow Holder. In the event Seller disputes
any Disbursement Notice or Buyer's entitlement to funds from the Post-
Closing Reserve, Seller shall not be entitled to prevent disbursement
in accordance with the Disbursement Notice, whether through demand
made upon Escrow Holder or by injunction or other equitable remedy,
but Seller may cause certain future disbursements to be suspended
pending resolution of such dispute to the extent expressly provided in
Section 11.2.3.3, below. Escrow Holder shall not be liable with
respect to the sufficiency of or correctness as to form, manner of
execution of or validity of any Disbursement Notice deposited with
Escrow Holder, nor with respect to the identity, authority or rights
of any person executing the same.
"11.2.3.3 Disputes. In the event Seller shall in
good faith object to any Disbursement Notice, Seller shall deliver
written notice ("Dispute Notice") of such objection to Buyer and
Escrow Holder within ten (10) Business Days after delivery of the
disputed Disbursement Notice. Seller may object to a Disbursement
Notice only for the following reasons: (i) the disbursement is sought
for purposes other than paying or reimbursing Stated Expenditures,
(ii) Buyer is seeking disbursement for Deferred Maintenance Items
after Buyer has already received aggregate disbursements for Deferred
Maintenance Items which exceed $500,000, (iii) the requested
disbursement otherwise violates the terms of this Agreement, (iv)
Buyer has not applied prior disbursements in accordance with the
Disbursement Notices relating to such disbursements, or (v) the costs
incurred by Buyer for which it is requesting disbursement were not
reasonably incurred by Buyer. Notwithstanding anything to the
contrary in this Agreement or in the Dispute Notice, Escrow Holder
shall disburse to Buyer the full disbursement sought in the disputed
Disbursement Notice but Escrow Holder shall suspend future
disbursements (i.e., those requested in Disbursement Notices delivered
subsequent to Escrow Holder's receipt of a Dispute Notice) until
either (i) Buyer and Seller deliver to Escrow Holder a notice that
they have resolved their dispute (a 'Resolution Notice') or (ii) a
'Determination Notice' (as defined below) shall be delivered to Escrow
Holder. A Resolution Notice or Determination Notice need not be given
until any disbursements which Buyer has received in error (as agreed
upon by the parties or as determined by arbitration) shall have been
re-deposited by Buyer in the Post-Closing Reserve together with
interest thereon from the date of the disputed disbursement until re-
deposit at the rate of eight percent (8%) per annum.
"11.2.3.4 ARBITRATION OF DISPUTES. IF SELLER
SHALL DELIVER A DISPUTE NOTICE AND THE PARTIES ARE UNABLE TO RESOLVE
THE DISPUTE WITHIN FIVE (5) BUSINESS DAYS FOLLOWING DELIVERY OF THE
DISPUTE NOTICE, AT EITHER PARTY'S ELECTION, THE DISPUTE SHALL BE
RESOLVED EXCLUSIVELY BY BINDING ARBITRATION BEFORE A SINGLE ARBITRATOR
CONDUCTED ACCORDING TO THE EXPEDITED PROCEDURES OF THE COMMERCIAL
ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION THEN IN
EFFECT ("AAA RULES"). UNLESS THE PARTIES OTHERWISE AGREE BETWEEN
THEMSELVES, THE ARBITRATOR SHALL BE SELECTED ACCORDING TO THE AAA
RULES. AS FAR AS IS PRACTICABLE, THE ARBITRATOR SELECTED SHALL HAVE AT
LEAST TEN YEARS' EXPERIENCE IN COMMERCIAL REAL PROPERTY MATTERS
INCLUDING AT LEAST FIVE YEARS' EXPERIENCE IN CONNECTION WITH REAL
PROPERTY CONSTRUCTION IN THE STATE OF CALIFORNIA. EITHER PARTY MAY
COMMENCE THE ARBITRATION BY FILING A DEMAND FOR ARBITRATION WITH THE
AMERICAN ARBITRATION ASSOCIATION AT ANY TIME FOLLOWING THE FIFTH (5th)
BUSINESS DAY AFTER SELLER DELIVERS A DISPUTE NOTICE AND PRIOR TO
DELIVERY OF A RESOLUTION NOTICE RELATING TO SUCH DISPUTE. THE
DETERMINATION OF THE ARBITRATOR SHALL BE FINAL AND BINDING UPON THE
PARTIES HERETO AND MAY NOT BE APPEALED. IT IS INTENDED THAT THE
DETERMINATION OF THE ARBITRATOR SHALL BE GIVEN FULL FAITH AND CREDIT
BY THE COURTS AND THAT THE COURTS SHALL ENTER ENFORCEABLE, RECORDABLE,
EXECUTABLE JUDGMENT GIVING EFFECT TO THE ARBITRATOR'S DETERMINATION
UPON THE REQUEST OF ANY PARTY HERETO. UPON CONCLUSION OF THE
ARBITRATION, AND FOLLOWING BUYER'S DEPOSIT INTO THE POST-CLOSING
RESERVE OF ANY DISBURSEMENT WHICH THE ARBITRATOR DETERMINED WAS
DISBURSED IN ERROR (TOGETHER WITH INTEREST AS PROVIDED IN SECTION
11.2.3.3, ABOVE) THE PARTIES HERETO SHALL CAUSE THE ARBITRATOR TO FILE
WITH ESCROW HOLDER WRITTEN NOTICE THAT THE ARBITRATION HAS BEEN
CONCLUDED AND THAT DISBURSEMENTS FROM THE POST-CLOSING RESERVE SHALL
RESUME ('DETERMINATION NOTICE'). ARBITRATION SHALL OCCUR IN SANTA
CRUZ COUNTY, CALIFORNIA. THE COST OF THE ARBITRATION SHALL BE FIXED
BY THE ARBITRATOR AND BORNE BY THE LOSING PARTY. ONLY LIMITED
DISCOVERY SHALL BE PERMITTED, WITH SUCH LIMITED DISCOVERY CONSISTENT
WITH THE EXPEDITED NATURE OF THE PROCEEDING AND THE PARTIES' DESIRE
ONLY TO HAVE LIMITED DISCOVERY.
"NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY
DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF
DISPUTES' PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY
CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO
HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN
THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY
AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE
'ARBITRATION OF DISPUTES' PROVISION. IF YOU REFUSE TO SUBMIT TO
ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO
ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL
PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
"WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT
DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF
DISPUTES' PROVISION TO NEUTRAL ARBITRATION.
"BUYER: T.G. SELLER: H.McK.B.
-------- -------------
"11.2.3.5 Disbursement Delays. Notwithstanding
anything to the contrary in this Agreement, if the time for
disbursement pursuant to this Section 11.2.3 occurs prior to maturity
of investments by Escrow Holder in an amount sufficient to pay the
amount then due to Buyer, Escrow Holder shall pay to Buyer such
portion of the amount due as can then be paid without penalty and with
neither loss of principal nor loss of interest thereon at the rate
provided for on such investment, and shall pay the balance due to
Buyer as and when the balance can be paid without penalty or such loss
and shall also pay to or as directed by Buyer the interest earned,
from the 'Requested Disbursement Date' (as hereinafter defined) to the
payment date, on the portion of such investment which is equal to the
outstanding unpaid balance due to Buyer from time to time after the
Requested Disbursement Date. As used in this Section 11.2.3.5, the
'Requested Disbursement Date' with respect to a particular
Disbursement Notice means the date set forth in the Disbursement
Notice for disbursement of funds from the Post-Closing Reserve.
"11.2.4 Final Release of Funds from the Post-Closing
Reserve. Any Disbursement Notices must be delivered to Escrow Holder
on or prior to the Second Anniversary. All funds on deposit in the
Post-Closing Reserve on or after the Second Anniversary, except for
any funds remaining to be disbursed pursuant to any Disbursement
Notices delivered to Escrow on or prior to the Second Anniversary
('Pending Disbursements'), shall be disbursed to Seller within five
(5) Business Days following the Second Anniversary. In the event
that, after the Second Anniversary, Escrow Holder is notified (through
Resolution Notices delivered by Buyer and Seller or a Determination
Notice) that any funds being held as Pending Disbursements shall not
be disbursed as originally sought by Buyer in a Disbursement Notice,
such funds shall be disbursed within five (5) Business Days following
Escrow Holder's receipt of such notice to Seller.
"11.2.5 Escrow Fees. Escrow Holder's escrow fees and
charges relating to the Post-Closing Reserve shall be borne equally by
Buyer and Seller. Escrow Holder may withhold such fees and charges,
to the extent earned, out of disbursements to Buyer and Seller as
follows: (1) Escrow Holder may withhold Seller's share of such fees
from any disbursements to Seller under this Section 11.2 and (2)
Escrow Holder may withhold Buyer's share of such fees from any
disbursements to Buyer under this Section 11.2."
10. Assignment. The second to last sentence of Section 18.4 of the
Original Agreement is hereby deleted and, in lieu thereof, the following
shall be inserted: "Buyer shall not have the right to make any partial
assignment, delegation or other transfer of its rights, duties and
obligations under this Agreement; provided, however, notwithstanding any
assignment and delegation by Buyer of its rights, duties and obligations
under this Agreement, ScanlanKemperBard Companies shall have the right to
retain all rights, duties and obligations of Buyer under Section 16 of the
Agreement (the Put Option with respect to the Greenhills Property) and may
separately assign such rights, duties and obligations of Buyer under
Section 16 of the Agreement to any entity to whom an assignment is
permitted under this Section 18.4."
11. No Other Changes. Except as expressly modified or amended by
this Amendment, the Original Agreement shall remain in full force and
effect and be binding upon the parties in accordance with its terms.
12. Counterparts. This Amendment may be executed in two or more
counterparts each of which shall be an original and all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
SELLER:
INPRISE CORPORATION, a Delaware
corporation
By /s/ Hobart McK. Birmingham
----------------------------------
Print Name: Hobart McK. Birmingham
Title: Chief Administrative Officer
BUYER:
SCANLANKEMPERBARD COMPANIES, an
Oregon corporation
By /s/ Todd M. Gooding
---------------------------------
Print Name: Todd M. Gooding
Title: Vice President
EXHIBIT "A"
DOCUMENTATION REGARDING FEE CREDITS
[SEE ATTACHED]
CITY OF SCOTTS VALLEY
ONE CIVIC CENTER DRIVE SCOTTS VALLEY, CALIFORNIA 95066 (408) 438-2324
April 28, 1995
Linda Gilcrest, Director of Corporate Real Estate
Borland International
100 Borland Way
Scotts Valley, CA 95066
Ref: Borland Campus Phase I Development Fees
Dear Linda:
In response to your letter of April 24, 1995, and based on the letters of
Craig Ivancovich, the architect for the Borland Headquarters, the City
acknowledges a development fee credit to Borland of $288,243. In the event
you proceed with the construction of Phase II in the future, that
construction will be given development fee credit in the amount of $288,243
consistent with the Development Agreement.
Sincerely,
/s/ Robert J. Hanna
---------------------------
Robert J. Hanna
Planning Director
RJH:sa
cc: Chuck Comstock, City Manager
Bob Logan, City Attorney
Ken Anderson, Public Works Director
RESOLUTION NO. 1539
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF SCOTTS VALLEY
ESTABLISHING THE AMOUNT OF CREDIT DUE
BORLAND INTERNATIONAL FOR OFF-SITE IMPROVEMENTS
WHEREAS, the City of Scotts Valley ("City") and the Redevelopment
Agency of the City of Scotts Valley ("Agency") entered into an Owner
Participation and Development Agreement ("Agreement") with Borland
International, Inc. ("Property Owner") regarding the development of the
former Santa's Village site; and
WHEREAS, the Property Owner agreed to seek reimbursements established
under that Agreement by way of a credit against development impact fees for
related traffic impacts regarding the development of Phase II of the
remaining property owned by Property Owner; and
WHEREAS, the Property Owner has completed all of the improvements with
a total cost of improvements of One Million One Hundred Eighty-nine
Thousand Three Hundred Three Dollars ($1,189,303.00); and
WHEREAS, the City/Agency obligation, pursuant to the Agreement,
established the amount of the credit by deducting from the actual cost of
improvements the amount of $300,000; and
WHEREAS, the remaining amount due which may be credited to the Phase
II part of the development is Eight Hundred Eighty-nine Thousand Three
Hundred Three Dollars.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Scotts Valley, having been advised by its Public Works Department that the
amount of Eight Hundred Eighty-Nine Thousand Three Hundred Three Dollars
($889,303.00) has been established as the fee credit which may be used
toward construction of Phase II of Borland Headquarters, as per the
Agreement.
This Resolution was PASSED and ADOPTED on the 5th day of April 1995,
at a duly held meeting of the City Council of the City of Scotts Valley,
California, by the following vote:
AYES: Miller, Lopez, Cavallaro, Schmidt, Shulman
NOES: None
ABSENT: None
ABSTAIN: None
Approved: /s/ Michael Shulman
--------------------------
Michael Shulman, Mayor
Attest: /s/ Judi Coffman
--------------------------
Judi Coffman, City Clerk
EXHIBIT "B"
LETTER REGARDING RETROFIT COSTS
[SEE ATTACHED]
January 24, 2000
Mr. David Pogue
Insignia/ES6
160 West Santa Clara Street
San Jose, CA 95113-1735
Re: Budget Estimate
Dear David,
Devcon is please to provide a budget estimate for various improvements at
Inprise, located in Scotts Valley, CA. Our budget estimate is based on
sketches provided by Nille Ostrgren & Associates. We offer the following
pricing:
1. Provide approximately 2,600 lf of 1-hour rated
tunnel corridors including demolition and
replacement of finishes. $1,522,700.00
2. Add three (3) each stairways to the second and
third floors. $732,000.00
3. Add one (1) each freight elevator where an
existing passenger elevator exists. $273,000.00
4. Add three (3) each stairways to the second and
third floors using the existing atrium openings
at each floor. $526,260.00
5. Provide glass walls at tunnel corridors where
they pass by atriums (200 lf total).
a) hollow metal and wire glass $91,300.00
b) fire light glass $270,900.00
6. At the exterior landscape around the lake, add
two (2) ea. stairways from grade elevation to
the second floor, and two (2) ea. Stairways
from the second floor to the third floor. $541,200.00
All work is intended to match the existing architecture. Design, permit
and fees are not included.
If you have any questions, please call me at (831) 462-4333.
Very Truly Yours,
DEVCON CONSTRUCTION, INC.
/s/ Ron Huett
------------------------------
Ron Huett
Project Manager
cc: Gary Fillzetti
EXHIBIT 99.8
Inprise/Borland Sells Scotts Valley Building to
ScanlanKemperBard
SCOTTS VALLEY, Calif., Feb. 18 /PRNewswire/ -- Inprise/Borland (Nasdaq:
INPR - news) today announced it has entered into an agreement to sell its
Scotts Valley facility to ScalanKemperBard Companies (SKB) for $47 million.
As part of the agreement, Inprise/Borland will sign a long-term lease,
leasing back approximately 44% of the facility. Included in the $47 million
purchase price is a $2.5 million reserve which can be used by SKB for
certain improvements should they be required. The transaction is scheduled
to close in mid-March. (Photo: NewsCom:
http://www.newscom.com/cgi-bin/prnh/20000117/SFM040 )
"The proceeds from the sale of the building will significantly add to
our current cash position," said Dale Fuller, interim president and
CEO of Inprise/Borland. "We anticipate the use of these proceeds as
well as other savings from operating and non-cash expenses to further
our drive towards profitability, while enabling us to invest in
Internet Access Infrastructure; applications and development tools
for all major platforms including: Linux, Solaris and Windows as well
as other emerging technologies."
"SKB is very excited to add the extraordinary Inprise/Borland
corporate campus to its portfolio. We have already had significant
tenant interest and we look forward to playing a role in the Scotts
Valley community," said Bob Scanlan, principal with ScanlanKemperBard
Companies.
About SKB
ScanlanKemperBard Companies was founded in 1993 and is actively engaged in
a wide range of real estate investment banking, advisory and development
throughout the Western United States. SKB is dedicated to creating and
retaining wealth through real estate for its investors and principals, in
that order. The firm is based in Portland, Oregon.
About Inprise/Borland Corporation
Inprise/Borland is a leading provider of Internet access infrastructure and
application development tools and services for all major platforms,
including Linux, Solaris and Windows. Earlier this month, Inprise/Borland
agreed to merge with Corel Corporation. The merger is expected to be
completed in the late spring. Founded in 1983, Inprise/Borland is
headquartered in the Silicon Valley, California, with operations worldwide.
To learn more, visit Inprise/Borland at http://www.borland.com, the
community site at http://community.borland.com or call the company at
800-632-2864.
NOTE: Inprise/Borland product names are trademarks or registered trademarks
of Inprise/Borland. Other names mentioned herein may be trademarks of the
party using such names.
Forward-looking statements in this release, including but not limited to,
those concerning Inprise's future financial performance, product
development plans, and the potential features of or benefits to be derived
from the Company's products, involve a number of uncertainties and risks,
and actual events or results may differ materially. Factors that could
cause actual events or results to differ materially include, among others,
the following: possible disruptive effects of organizational or personnel
changes by the Company, shifts in customer demand, market acceptance of the
Company's new or enhanced products, delays in scheduled product
availability dates, actions or announcements by competitors, software
errors, general business conditions and market growth rates in the
client/server and Internet software markets, and other factors described in
the Company's S.E.C. reports on Forms 10-K and 10-Q.
