EXHIBIT 10.23
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PURCHASE AGREEMENT
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between
INTERNATIONAL BUSINESS MACHINES CORPORATION
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and
EQUINIX, INC.
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May 23, 2000
Land Near Highway 85
and Great Oaks Boulevard
San Jose, California
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TABLE OF CONTENTS
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Page
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ARTICLE 1 Purchase and Sale.............................................. 1
1.1 The Property................................................ 1
1.2 Confirmation of Acreage..................................... 1
ARTICLE 2 Purchase Price................................................. 1
2.1 Amount and Payment.......................................... 1
2.2 Deposit..................................................... 2
2.3 Liquidated Damages.......................................... 2
ARTICLE 3 Completion of Sale............................................. 2
3.1 Place and Date.............................................. 2
ARTICLE 4 Title and Condition............................................ 3
4.1 Title to the Real Property.................................. 3
4.2 Acceptance of Title......................................... 3
4.3 Condition of the Property................................... 3
4.4 Assessment Districts........................................ 4
ARTICLE 5 Representations and Warranties................................. 5
5.1 Seller...................................................... 5
5.2 Buyer....................................................... 6
ARTICLE 6 Covenants...................................................... 6
6.1 Seller...................................................... 6
6.2 Buyer....................................................... 7
6.3 Eminent Domain.............................................. 8
6.4 Utilities Easement Over Real Property....................... 9
6.5 Use of Entrance Road........................................ 9
6.6 Great Oaks Extension........................................ 9
6.7 Easement over Retained Property............................. 10
6.8 Easement over White Plains Road............................. 10
6.9 Cooperation in Development.................................. 10
6.10 Definition of Force Majeure................................. 10
ARTICLE 7 Conditions Precedent........................................... 10
7.1 Seller...................................................... 10
7.2 Buyer....................................................... 11
ARTICLE 8 Closing as to Real Property.................................... 12
8.1 Procedure................................................... 12
8.2 Possession.................................................. 12
8.3 Closing Costs............................................... 12
8.4 Prorations.................................................. 12
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ARTICLE 9 Reconveyance of Extraneous Parcel............................ 13
9.1 Lot Line Adjustment....................................... 13
9.2 Title to the Extraneous Parcel............................ 13
9.3 Closing................................................... 13
ARTICLE 10 General..................................................... 14
10.1 Notices................................................... 14
10.2 Attorneys' Fees........................................... 15
10.3 Governing Law............................................. 15
10.4 Construction.............................................. 15
10.5 Survival.................................................. 15
10.6 Terms Generally........................................... 15
10.7 Further Assurances........................................ 16
10.8 Partial Invalidity and Waiver............................. 16
10.9 Waiver of Jury Trial...................................... 16
10.10 No Third-Party Beneficiaries.............................. 16
10.11 Confidentiality........................................... 16
10.12 Miscellaneous............................................. 17
Exhibit A Preliminary Report
Exhibit B Map of Real Property
Exhibit C Permits
Exhibit D Agreements
Exhibit E Grant Deed
Exhibit E-1 Grant Deed (Extraneous Parcel)
Exhibit F Assignment
Exhibit G Seller's Closing Certificate
Exhibit H Sewer Connection Easement
Exhibit I Utility Easement
Exhibit J Buyer's Closing Certificate
Exhibit K Entrance Road Easement
Exhibit L Certificate of Nonforeign Status
Exhibit L-1 Certificate of Nonforeign Status (Extraneous Parcel)
Exhibit M White Plains Road Easement
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PURCHASE AGREEMENT
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THIS AGREEMENT, made as of May 23, 2000, by and between INTERNATIONAL
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BUSINESS MACHINES CORPORATION ("Seller"), and EQUINIX, INC. ("Buyer"),
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W I T N E S S E T H:
In consideration of the covenants in this Agreement, Seller and Buyer
agree as follows:
ARTICLE 1
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Purchase and Sale
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1.1 The Property. Seller agrees to sell to Buyer and Buyer agrees to
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purchase from Seller, in accordance with this Agreement, all of the following
property (collectively, the "Property"):
(a) The real property in the City of San ▇▇▇▇, Santa ▇▇▇▇▇ County,
California, comprising 78.446 acres, described in Amended Preliminary Report No.
518173 dated as of April 21, 2000 (the "Preliminary Report"), prepared by First
American Title Insurance Company (the "Title Company"), a copy of which is
attached hereto as Exhibit A, but excluding the Extraneous Parcel (as defined in
section 9.1), together with all improvements on such real property and all
easements and rights appurtenant to such real property (all such real property,
improvements, and easements and rights are collectively the "Real Property");
(b) All development approvals, entitlements and permits (the
"Permits") relating to the Real Property described in Exhibit C attached hereto;
and
(c) Seller's interest in all agreements (the "Agreements") relating
to the Real Property described in Exhibit D attached hereto.
1.2 Confirmation of Acreage. Buyer and Seller acknowledge that the
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land area of the Real Property is 78.446 acres, as shown on the boundary survey
of the Real Property dated May 16, 2000 (the "Boundary Survey"), prepared by
▇▇▇▇▇ & Associates (the "Surveyor"). Buyer and Seller agree to be bound by the
Surveyor's calculation of the land area of the Real Property, as shown on the
Boundary Survey. Buyer shall pay the cost of the Boundary Survey.
ARTICLE 2
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Purchase Price
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2.1 Amount and Payment. The total purchase price for the Property
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(the "Purchase Price") shall be eighty million seven hundred twelve thousand
eighty-five and 29/100 dollars ($80,712,085.29). At the Closing (as hereinafter
defined) on the Closing Date (as hereinafter
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defined), Buyer shall pay the total Purchase Price to Seller in cash in
immediately available funds.
2.2 Deposit. Prior to the date of this Agreement, Buyer has deposited the
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sum of five hundred thousand dollars ($500,000) (the "Initial Deposit") in cash
in immediately available funds in escrow with the Title Company. Buyer shall,
within one (1) business day after Buyer and Seller shall have executed and
delivered this Agreement, deposit the sum of three million five hundred thirty-
five thousand six hundred four and 26/100 dollars ($3,535,604.26) (the
"Additional Deposit") in cash in immediately available funds in escrow with the
Title Company. The Initial Deposit and the Additional Deposit are collectively
the "Deposit." The Deposit shall be held by the Title Company in an interest-
bearing account designated in writing by Buyer and approved in writing by
Seller. If Seller and Buyer complete the purchase and sale of the Property in
accordance with this Agreement, the Deposit and all interest thereon shall be
applied to payment of the Purchase Price in accordance with section 2.1 hereof.
If the purchase and sale of the Property is not so completed and this Agreement
terminates for any reason other than a default by Buyer under or a breach by
Buyer of this Agreement, then the Deposit and all interest thereon shall be
returned to Buyer upon such termination of this Agreement.
2.3 Liquidated Damages. SELLER AND BUYER AGREE THAT, IF BUYER DEFAULTS
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UNDER OR BREACHES THIS AGREEMENT AND FAILS TO PURCHASE THE PROPERTY IN
ACCORDANCE WITH THIS AGREEMENT, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS
AGREEMENT BY GIVING A NOTICE OF TERMINATION TO BUYER AND, UPON SUCH TERMINATION
OF THIS AGREEMENT, THE DEPOSIT AND ALL INTEREST THEREON SHALL BE PAID TO SELLER
AND RETAINED BY SELLER AS LIQUIDATED DAMAGES AND AS SELLER'S SOLE REMEDY AT LAW
OR IN EQUITY. SELLER AND BUYER AGREE THAT, UNDER THE CIRCUMSTANCES EXISTING AS
OF THE DATE OF THIS AGREEMENT, ACTUAL DAMAGES MAY BE DIFFICULT TO ASCERTAIN AND
THE DEPOSIT AND ALL INTEREST THEREON IS A REASONABLE ESTIMATE OF THE DAMAGES
THAT WILL BE INCURRED BY SELLER IF BUYER DEFAULTS UNDER OR BREACHES THIS
AGREEMENT AND FAILS TO PURCHASE THE PROPERTY IN ACCORDANCE WITH THIS AGREEMENT.
SELLER'S INITIALS: _____ BUYER'S INITIALS: _____
ARTICLE 3
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Completion of Sale
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3.1 Place and Date. The purchase and sale of the Property shall be
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completed in accordance with Article 8 hereof (the "Closing"). The Closing shall
occur through escrow No. 518173 with the Title Company at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on June 15, 2000 (the "Closing Date"), or at
such other place or on such other date as Seller and Buyer agree in writing.
Prior to the Closing Date, Seller and Buyer each shall give appropriate
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written escrow instructions, consistent with this Agreement, to the Title
Company for the Closing in accordance with this Agreement.
ARTICLE 4
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Title and Condition
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4.1 Title to the Real Property. Seller shall convey to Buyer good and
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marketable fee title to the Real Property, by a duly executed and acknowledged
Grant Deed (the "Grant Deed") in the form of Exhibit E attached hereto, free and
clear of liens, encumbrances, leases, easements, restrictions, rights, covenants
and conditions, except the following (the "Permitted Exceptions"): (a) the
matters shown as exceptions 1 (lien of property taxes and assessments not yet
delinquent), 2 (as modified by that certain letter dated May 15, 2000 from
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ (the "Title Letter")), 3, 4,
5, 6 and 7 (as modified by the Title Letter) in the Preliminary Report, (b)
matters shown by the ALTA Survey or by a physical inspection of the Real
Property, (c) any liens, assessments or other liabilities arising by virtue of
the Real Property's being located within any present or future improvement
district or assessment district, and (d) any other matters created, permitted or
approved by Buyer. Buyer has engaged the Surveyor to produce an ALTA/ACSM Survey
of the Real Property (the "ALTA Survey"), which shall be complete prior to
Closing but in no event later than June 15, 2000. Buyer shall pay the cost of
the ALTA Survey. Buyer and Seller acknowledge that the ALTA Survey could reveal
a Material Encumbrance (as hereinafter defined) not shown on the Boundary
Survey. In such event, Buyer and Seller agree that (i) if the Material
Encumbrance results in an FAR Reduction (as hereinafter defined) of less than
ten percent (10%), then the Purchase Price shall be reduced by a percentage
equal to the FAR Reduction and (ii) if the Material Encumbrance results in an
FAR Reduction of more than ten percent (10%), then Buyer shall have the right to
(x) reduce the Purchase Price by ten percent (10%) and purchase the Real
Property at such reduced Purchase Price or (y) terminate this Agreement and
receive a refund of the Deposit. As used herein, the term "Material Encumbrance"
shall mean an encumbrance on the Real Property that has the effect of reducing
the floor area ratio that can be developed by Buyer on the Real Property and the
term "FAR Reduction" shall mean the percentage by which the floor area ratio
that can be developed by Buyer on the Real Property is reduced as a result of
any Material Encumbrance. Seller shall transfer to Buyer good title to the
Permits and the Agreements, by a duly executed Assignment (the "Assignment") in
the form of Exhibit F attached hereto, free and clear of liens, security
interests and adverse claims. Buyer's acceptance of title from Seller subject to
future assessment districts does not constitute Buyer's approval of any such
future assessment districts.
4.2 Acceptance of Title. Buyer's acceptance of the Grant Deed from Seller
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for the Real Property at the Closing on the Closing Date and the issuance of a
title insurance policy to Buyer by the Title Company on the Closing Date shall
conclusively establish that Seller conveyed the Real Property to Buyer as
required by this Agreement and shall discharge in full Seller's obligations
under section 4.1 hereof with respect to title to the Real Property.
4.3 Condition of the Property. Except for the express representations and
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warranties of Seller set forth in section 5.1 hereof and in Seller's Closing
Certificate (as hereinafter
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defined), and except for the express covenants of Seller in this Agreement,
Buyer is acquiring the Property "AS IS, WHERE IS, AND WITH ALL FAULTS," without
any covenant, representation or warranty of any kind or nature whatsoever,
express or implied, and Buyer is relying solely on Buyer's own investigation of
the Property. Except for such express representations, warranties and covenants,
Seller makes no covenants, representations or warranties, express or implied, of
any kind or nature whatsoever with respect to the Property. Buyer acknowledges
that defects, deficiencies or flaws may exist in the quality, legal compliance,
physical condition or general utility of the Property and Buyer acknowledges
that Buyer has been given the opportunity to investigate and evaluate any such
defects, deficiencies and flaws. Buyer expressly assumes all risks of any such
defects, deficiencies and flaws and Buyer agrees that Seller shall have no
liability whatsoever for any such defects, deficiencies or flaws, except only
for such express representations and warranties made by Seller in section 5.1
hereof and in Seller's Closing Certificate and except for the express covenants
of Seller in this Agreement. Without limiting the foregoing, in connection with
Buyer's investigation of the Real Property, Buyer has investigated the presence
of hazardous substances (as hereinafter defined) in, on or under the Real
Property and the violation of environmental laws (as hereinafter defined) at the
Real Property. As used in this Agreement, "hazardous substance" means any
substance or material that is described as a toxic or hazardous substance, waste
or material or a pollutant or contaminant, or words of similar import, in any
environmental law and "environmental law" means all federal, state and local
laws, ordinances, rules and regulations now or hereafter in force, as amended
from time to time, in any way relating to or regulating human health or safety,
or industrial hygiene or environmental conditions, or protection of the
environment, or pollution or contamination of the air, soil, surface water or
groundwater. Buyer hereby expressly, fully, forever and irrevocably waives and
releases all claims, demands, liabilities, losses and causes of action against
Seller that in any way (directly or indirectly) arise out of, result from or
relate to the presence of any hazardous substance in, on or under the Real
Property or the violation of any environmental law at the Real Property. Buyer
intends this Agreement to be a general release that covers all such claims,
demands, liabilities, losses and causes of action, whether known or unknown or
suspected or unsuspected. Buyer hereby waives all rights under California Civil
Code Section 1542, which provides:
A general release does not extend to claims
which the creditor does not know or suspect to exist
in his favor at the time of executing the release,
which if known by him must have materially affected
his settlement with the debtor.
Buyer agrees that this Agreement is a full and final general release of all such
claims, demands, liabilities, losses and causes of action against Seller.
4.4 Assessment Districts. Buyer acknowledges that the City of San ▇▇▇▇ is
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reviewing the possibility of forming one or more assessment districts which may
include the Real Property. Buyer has satisfied itself as to the benefits and
burdens of such possible assessment districts, and agrees that Seller shall have
no liability to Buyer with respect to any assessments or other obligations
relating thereto.
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ARTICLE 5
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Representations and Warranties
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5.1 Seller. The representations and warranties of Seller in this section
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5.1 and in Seller's Closing Certificate (as hereinafter defined) are a material
inducement for Buyer to enter into this Agreement. Buyer would not purchase the
Property from Seller without such representations and warranties of Seller. Such
representations and warranties shall survive the Closing for only one (1) year
after the Closing Date, at which time such representations and warranties shall
terminate. The term "Seller's actual knowledge" means the current actual
knowledge of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, and ▇▇▇▇ ▇▇▇▇▇▇▇, without duty of
inquiry. Seller represents and warrants to Buyer as of the date of this
Agreement as follows:
(a) Seller is a corporation duly incorporated and organized and validly
existing and in good standing under the laws of the State of New York. Seller is
duly qualified to do business and is in good standing in the State of
California. Seller has full corporate power and authority to enter into this
Agreement and to perform this Agreement. The execution, delivery and performance
of this Agreement by Seller have been duly and validly authorized by all
necessary action on the part of Seller and all required consents and approvals
have been duly obtained. This Agreement is a legal, valid and binding obligation
of Seller, enforceable against Seller in accordance with its terms, subject to
the effect of applicable bankruptcy, insolvency, reorganization, arrangement,
moratorium or other similar laws affecting the rights of creditors generally.
(b) The Agreements have not been amended or modified. To the current
actual knowledge of Seller, Seller is not materially in default in the
performance of any material covenant to be performed by Seller under the
Agreements.
(c) Seller is not a "foreign person" as defined in Section 1445 of the
Internal Revenue Code of 1986, as amended, and the Income Tax Regulations
thereunder.
(d) Except for Cornish & ▇▇▇▇▇ Commercial ("Seller's Broker") and CRESA
Partners ("Buyer's Broker"), Seller has not dealt with any real estate broker or
finder in connection with the sale of the Property to Buyer or this Agreement.
(e) To Seller's actual knowledge, Seller has not received any written
notice of any violation of laws applicable to the Property, including
environmental laws, except as disclosed in any Phase I environmental assessment
obtained by Buyer or as disclosed to Buyer in writing on or prior to the date of
this Agreement.
(f) To Seller's actual knowledge, there is no pending litigation regarding
the Property, and Seller has not received any written notice of any threatened
litigation regarding the Property.
(g) To Seller's actual knowledge, Seller has delivered or made available
to Buyer all written reports or documents in Seller's possession regarding
presently existing soils condition of
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the Property or any presently existing hazardous materials on the Property
(other than naturally occurring).
(h) To Seller's actual knowledge, there are no material contracts or
agreements that will be binding on the Property after the Closing other than the
Agreements.
5.2 Buyer. The representations and warranties of Buyer in this section 5.2
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and in Buyer's Closing Certificate (as hereinafter defined) are a material
inducement for Seller to enter into this Agreement. Seller would not sell the
Property to Buyer without such representations and warranties of Buyer. Such
representations and warranties shall survive the Closing for only one (1) year
after the Closing Date, at which time such representations and warranties shall
terminate. Buyer represents and warrants to Seller as of the date of this
Agreement as follows:
(a) Buyer is a corporation duly incorporated and organized and validly
existing and in good standing under the laws of the State of Delaware. Buyer is
duly qualified to do business and is in good standing in the State of
California. Buyer has full corporate power and authority to enter into this
Agreement and to perform this Agreement. The execution, delivery and performance
of this Agreement by Buyer have been duly and validly authorized by all
necessary action on the part of Buyer and all required consents and approvals
have been duly obtained. This Agreement is a legal, valid and binding obligation
of Buyer, enforceable against Buyer in accordance with its terms, subject to the
effect of applicable bankruptcy, insolvency, reorganization, arrangement,
moratorium or other similar laws affecting the rights of creditors generally.
(b) Except for Seller's Broker and Buyer's Broker, Buyer has not dealt
with any real estate broker or finder in connection with the purchase of the
Property from Seller or this Agreement.
ARTICLE 6
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Covenants
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6.1 Seller. Seller covenants and agrees with Buyer as follows:
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(a) Representations. Seller shall use reasonable efforts, in good faith
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and with diligence, to cause all of the representations and warranties made by
Seller in section 5.1 hereof to be true and correct on and as of the Closing
Date. At the Closing on the Closing Date, Seller shall execute and deliver to
Buyer a Seller's Closing Certificate ("Seller's Closing Certificate") in the
form of Exhibit G attached hereto, certifying to Buyer that all such
representations and warranties are true and correct on and as of the Closing
Date, with only such exceptions therein as are necessary to reflect facts or
circumstances arising between the date of this Agreement and the Closing Date
which would make any such representation or warranty untrue or incorrect on and
as of the Closing Date.
(b) Indemnity. Seller shall indemnify and defend Buyer against and hold
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Buyer harmless from all claims, demands, liabilities, losses, damages, costs and
expenses, including reasonable attorneys' fees and disbursements, that may be
suffered or incurred by Buyer if any
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representation or warranty made by Seller in section 5.1 hereof or in Seller's
Closing Certificate was untrue or incorrect in any material respect when made or
that may be caused by any material breach by Seller of any such representation
or warranty.
(c) Broker Commission. If the purchase and sale of the Property is
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completed in accordance with this Agreement, Seller shall pay the commission due
Seller's Broker in accordance with the separate written agreement between Seller
and Seller's Broker.
(d) Closure of Test ▇▇▇▇▇. After the Closing Date, Seller shall close the
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groundwater test ▇▇▇▇▇ at the locations shown on Exhibit B attached hereto and
designated thereon as "Test ▇▇▇▇▇." Such closure shall be carried out in
compliance with all applicable laws, and shall be completed as promptly as
practicable after the Closing Date and in any event within one hundred eighty
(180) days after the Closing Date, subject to delays due to Force Majeure.
(e) Closure of Water ▇▇▇▇▇. After the Closing Date, Seller shall close the
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irrigation water ▇▇▇▇▇ at the locations shown on Exhibit B attached hereto and
designated thereon as "Water ▇▇▇▇▇." Such closure shall be carried out in
compliance with all applicable laws, and shall be completed as promptly as
practicable after the Closing Date and in any event within one hundred eighty
(180) days after the Closing Date, subject to delays due to Force Majeure.
(f) Removal of Contractor Yard Equipment. After the Closing Date, Seller,
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at its expense, remove from the portion of the Real Property designated on
Exhibit B as the "Contractor Yard" all personal property of Seller or its
contractors. Such removal shall be completed as promptly as practicable
thereafter and in any event within one hundred eighty (180) days after the
Closing Date, subject to delays due to Force Majeure. From and after the Closing
Date until the date that such removal is complete, Seller shall be responsible
for monitoring the activities of the contractors on the Contractor Yard.
(g) Access and Indemnity. After the Closing Date, Seller and its agents,
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employees and contractors shall have a right of access onto the Real Property in
order to perform the work contemplated under sections 6.1(d), 6.1(e) and 6.1(f)
hereof (the "Access Right"). In addition, until the completion of the work
contemplated by section 6.1(f), Seller and its agents, employees and contractors
shall have a right of access to and from the Contractor Yard from and over
Tucson Road through the gate at the intersection of Tucson Road and Little Road.
Seller shall indemnify and defend Buyer against and hold Buyer harmless from all
claims, demands, liabilities, losses, damages, costs and expenses, including
reasonable attorneys' fees and disbursements, that arise out of or result from
the use or misuse of the Access Right by Seller or Seller's employees, agents,
operators, licensees or contractors, except that Buyer shall not be indemnified
for any such claim, demand, liability, loss, damage, cost or expense that arises
out of or results from the negligent or willful act or omission of Buyer or
Buyer's employees, agents, operators, licensees or contractors.
6.2 Buyer. Buyer covenants and agrees with Seller as follows:
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(a) Representations. Buyer shall use reasonable efforts, in good faith and
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with diligence, to cause all of the representations and warranties made by Buyer
in section 5.2 hereof to be true and correct on and as of the Closing Date. At
the Closing on the Closing Date, Buyer
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shall execute and deliver to Seller a Buyer's Closing Certificate ("Buyer's
Closing Certificate") in the form of Exhibit J attached hereto, certifying to
Seller that all such representations and warranties are true and correct on and
as of the Closing Date, with only such exceptions therein as are necessary to
reflect facts or circumstances arising between the date of this Agreement and
the Closing Date which would make any such representation or warranty untrue or
incorrect on and as of the Closing Date.
(b) Indemnity. Buyer shall indemnify and defend Seller against and hold
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Seller harmless from all claims, demands, liabilities, losses, damages, costs
and expenses, including reasonable attorneys' fees and disbursements, that may
be suffered or incurred by Seller if any representation or warranty made by
Buyer in section 5.2 hereof or in Buyer's Closing Certificate was untrue or
incorrect in any material respect when made or that may be caused by any
material breach by Buyer of any such representation or warranty.
(c) Broker Commission. If the purchase and sale of the Real Property is
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completed in accordance with this Agreement, Buyer shall pay the commission due
Buyer's Broker in accordance with the separate written agreement between Buyer
and Buyer's Broker.
(d) Indemnity Against Increased Costs. Buyer agrees that Seller shall not
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be required to pay any costs or expenses arising from or related to Buyer's
development or improvement of, or activities on, the Real Property. Buyer shall
pay, and shall protect, indemnify and defend Seller from and against any costs,
expenses, liabilities or obligations arising from or related to Buyer's
development or improvement of the Real Property, including any assessment or
improvement district assessments attributable to such development, improvement
or activities but excluding any costs Seller voluntarily incurs or that result
from Seller's actions. The foregoing indemnity shall be a covenant running with
the land and shall be binding on Buyer's successors-in-title to the Real
Property until the earlier of (i) twenty (20) years after the date hereof, or
(ii) two (2) years after the completion of development of the Real Property
under then applicable land use rules. In the event Buyer transfers any or all of
its interest in or to the Real Property, Buyer shall cause Buyer's successors-
in-title to the Real Property to assume the foregoing indemnity in writing for
the benefit of Seller.
6.3 Eminent Domain. If, before the Closing Date, proceedings are commenced
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for the taking by exercise of the power of eminent domain of all or a material
part of the Property which, as reasonably determined by Buyer, would render the
Property unsuitable for Buyer's intended use, Buyer shall have the right, by
giving notice to Seller within thirty (30) days after Seller gives notice of the
commencement of such proceedings to Buyer, to terminate this Agreement, in which
event this Agreement shall terminate. If, before the Closing Date, proceedings
are commenced for the taking by exercise of the power of eminent domain of less
than such a material part of the Property, or if Buyer has the right to
terminate this Agreement pursuant to the preceding sentence but Buyer does not
exercise such right, then this Agreement shall remain in full force and effect
and, on the Closing Date, the condemnation award (or, if not theretofore
received, the right to receive such award) payable on account of the taking
shall be transferred to Buyer. Seller shall give notice to Buyer reasonably
promptly after Seller's receiving notice of the commencement of any proceedings
for the taking by exercise of the power of eminent domain of all or any part of
the Property. If necessary, the Closing Date shall
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be postponed until Seller has given any notice to Buyer required by this section
6.3 and the period of thirty (30) days described in this section 6.3 has
expired.
6.4 Utilities Easement Over Real Property. At the Closing, Buyer shall
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grant Seller an easement for underground utilities benefiting the Retained
Property over a ten (10) foot wide strip of land along the northwestern boundary
of the Real Property. Such easement shall be evidenced by a Utility Easement
substantially in the form attached hereto as Exhibit I (the "Utility Easement"),
which shall be executed, acknowledged and delivered by Seller and Buyer at the
Closing.
6.5 Use of Entrance Road. Seller intends, after the Closing Date, to
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re-route Manassas Road to run along the entire southeastern boundary of the
property to be retained by Seller after sale of the Real Property (the "Retained
Property"), which route will be substantially as shown on Exhibit B attached
hereto (the "Manassas Extension Project"). Buyer will have no responsibility for
the costs of completing the Manassas Extension Project. Buyer shall grant Seller
access to the Real Property after the Closing Date to the extent necessary to
enable Seller to perform the work involved in the Manassas Extension Project.
Until the Manassas Completion Date (as defined below), Seller shall have the
exclusive right (to the exclusion of all other persons, including Buyer) to use
the road designated as "Existing Entrance Road" on Exhibit B for ingress and
egress to and from the Retained Property. Such right shall be evidenced by the
"Entrance Road Easement" substantially in the form attached hereto as Exhibit K,
which Seller and Buyer shall execute, acknowledge and deliver at the Closing.
The term "Manassas Completion Date" shall mean the earlier of (i) the date on
which the Manassas Extension Project is completed, as evidenced by Seller's
notice thereof to Buyer, or (ii) the date one hundred eighty (180) days after
the Closing Date (which latter date shall be extended by the number of days the
completion of the Manassas Extension Project is delayed due to Force Majeure).
6.6 Great Oaks Extension. Buyer shall, at its expense, use commercially
--------------------
reasonable efforts to cause to be constructed an extension of Great Oaks
Boulevard, as shown on Exhibit B attached hereto provided, however, that Buyer's
obligations to construct the extension shall not exceed the requirements of the
City of San ▇▇▇▇ (the "Great Oaks Extension Project"). The Great Oaks Extension
Project will include obtaining all studies and reports required by applicable
law or governmental authorities; obtaining all required governmental permits,
licenses and approvals; Buyer or the City of San ▇▇▇▇ obtaining title to the
portions of the route of the extension which lie on property of the Uchiyama
family; and constructing the roadbed and related facilities. Buyer shall keep
Seller apprised of the progress of the Great Oaks Extension Project. Seller
shall cooperate in carrying out the Great Oaks Extension Project, but shall not
be required to incur any expense. Buyer shall assure that, upon completion of
the Great Oaks Extension Project, Seller shall have a permanent direct right of
access over Great Oaks Boulevard to the Retained Property, either by virtue of
public dedication or private recorded right-of-way. If the City of San ▇▇▇▇
requires that the extension be a private road, (1) Seller shall pay to Buyer
fifty thousand dollars ($50,000) in exchange for Buyer's obligation to maintain
Great Oaks Boulevard in perpetuity and (2) Buyer and Seller shall enter into an
easement agreement substantially on the terms of the White Plains Easement
Agreement.
-9-
6.7 Easement over Retained Property. To the extent necessary to enable
-------------------------------
Buyer to connect sewer systems on the Real Property to public storm water sewer
and/or sanitary sewer facilities, Seller shall grant Buyer an easement for
underground pipes over the Retained Property at a location to be agreed between
Seller and Buyer. Such easement shall be evidenced by a Sewer Connection
Easement substantially in the form attached hereto as Exhibit H, which shall be
executed, acknowledged and delivered by Seller and Buyer if such an easement is
necessary.
6.8 Easement over White Plains Road. At the Closing, Buyer and Seller
-------------------------------
shall execute and acknowledge and cause to be a recorded an easement in the form
of Exhibit M attached hereto (the "White Plains Road Easement"), granting Seller
a non-exclusive easement for ingress, egress and access over White Plains Road
and an easement to place underground utilities under White Plains Road, all as
set forth in the White Plains Road Easement. At the Closing, Seller shall pay to
Buyer fifty thousand dollars ($50,000) in exchange for Buyer's obligation to
maintain White Plains Road in perpetuity, as set forth in the White Plains Road
Easement Agreement.
6.9 Cooperation in Development. Each party (each, a "Cooperating Party")
--------------------------
shall cooperate with the other party in connection with (1) all land use
activities required to proceed with the development of either the Real Property
or the Retained Property and (2) accomplishing the Great Oaks Extension Project,
so long as such cooperation shall be at no expense to nor to the detriment of
the Cooperating Party. The covenants contained in this section 6.8 are separate
from and in addition to the obligations set forth in section 6.5 hereof or
elsewhere contained herein.
6.10 Definition of Force Majeure. As used in this Agreement, the term
---------------------------
"Force Majeure" shall mean fire, flood, earth movement, inclement weather or
other act of nature, accidents, riots, wars, delays in transportation,
interference by government action, changes in applicable laws, unusual delay in
governmental proceedings, strikes, lock-outs, picketing or other form of labor
trouble (whether or not participated in by the employees of a party to this
Agreement or arising from a dispute with or unfair labor practices charged
against a party to this Agreement) or any other causes beyond the reasonable
control of the party delayed by such cause, whether similar or dissimilar to the
causes specifically mentioned above.
ARTICLE 7
---------
Conditions Precedent
--------------------
7.1 Seller. The obligations of Seller under this Agreement with respect to
------
sale of the Property are subject to satisfaction of all of the conditions set
forth in this section 7.1. Seller may waive any or all of such conditions in
whole or in part but any such waiver shall be effective only if made in writing.
After the Closing, any such condition that has not been satisfied shall be
treated as having been waived in writing. No such waiver shall constitute a
waiver by Seller of any of its rights or remedies if Buyer defaults in the
performance of any covenant or agreement to be performed by Buyer under this
Agreement or if Buyer breaches any representation or warranty made by Buyer in
section 5.2 hereof or in Buyer's Closing Certificate. If any condition set forth
in this section 7.1 is not fully satisfied or waived in writing by Seller, this
Agreement
-10-
shall terminate, but without releasing Buyer from liability if Buyer defaults in
the performance of any such covenant or agreement to be performed by Buyer or if
Buyer breaches any such representation or warranty made by Buyer before such
termination.
(a) On the Closing Date, Buyer shall not be materially in default in the
performance of any material covenant to be performed by Buyer under this
Agreement.
(b) On the Closing Date, all representations and warranties made by Buyer
in section 5.2 hereof shall be true and correct in all material respects as if
made on and as of the Closing Date and Seller shall have received Buyer's
Closing Certificate, executed by Buyer, in which Buyer certifies to Seller that
all representations and warranties made by Buyer in section 5.2 hereof are true
and correct on and as of the Closing Date, without material adverse exceptions.
7.2 Buyer. The obligations of Buyer under this Agreement with respect to
-----
the purchase of the Property are subject to satisfaction of all of the
conditions set forth in this section 7.2. Buyer may waive any or all of such
conditions in whole or in part but any such waiver shall be effective only if
made in writing. After the Closing, any such condition that has not been
satisfied shall be treated as having been waived in writing. No such waiver
shall constitute a waiver by Buyer of any of its rights or remedies if Seller
defaults in the performance of any covenant or agreement to be performed by
Seller under this Agreement or if Seller breaches any representation or warranty
made by Seller in section 5.1 hereof or in Seller's Closing Certificate. If any
condition set forth in this section 7.2 is not fully satisfied or waived in
writing by Buyer, this Agreement shall terminate, but without releasing Seller
from liability if Seller defaults in the performance of any such covenant or
agreement to be performed by Seller or if Seller breaches any such
representation or warranty made by Seller before such termination.
(a) On the Closing Date, Seller shall not be materially in default in the
performance of any material covenant to be performed by Seller under this
Agreement.
(b) On the Closing Date, all representations and warranties made by Seller
in section 5.1 hereof shall be true and correct in all material respects as if
made on and as of the Closing Date and Buyer shall have received Seller's
Closing Certificate, executed by Seller, in which Seller certifies to Buyer that
all representations and warranties made by Seller in section 5.1 hereof are true
and correct on and as of the Closing Date, without material adverse exceptions.
(c) On the Closing Date, the existing agricultural agreement on the Real
Property shall be cancelled.
(d) On the Closing Date, the Title Company shall be prepared to issue to
Buyer an American Land Title Association Owner's Policy of title insurance, with
liability equal to eighty million seven hundred twelve thousand eighty-five and
29/100 dollars ($80,712,085.29), insuring Buyer that fee title to the Real
Property is vested in Buyer subject only to the Permitted Exceptions, with
California Land Title Association Form 100 (modified), 103.7, 110.1 (with
respect to exception 4), 116.1, 116.4 and 116.7 Endorsements.
-11-
ARTICLE 8
---------
Closing as to Real Property
---------------------------
8.1 Procedure. Seller and Buyer shall cause the following to occur at the
---------
Closing on the Closing Date:
(a) The Grant Deed for the Real Property and the Extraneous Parcel, duly
executed and acknowledged by Seller, and the Utility Easement, the Entrance Road
Easement and the White Plains Road Easement, duly executed and acknowledged by
Buyer and Seller, shall be recorded in the Official Records of Santa ▇▇▇▇▇
County, California.
(b) Seller shall date as of the Closing Date, execute and deliver to Buyer
(i) the Assignment, (ii) Seller's Closing Certificate, (iii) a Certificate of
Nonforeign Status in the form of Exhibit L attached hereto, (iv) a California
Form 590-RE Withholding Exemption Certificate for Real Estate Sales and (v) a
closing statement consistent with this Agreement (the "Closing Statement").
(c) Buyer shall date as of the Closing Date, execute and deliver to Seller
(i) the Assignment, (ii) Buyer's Closing Certificate, and (iii) the Closing
Statement.
(d) Buyer shall pay to Seller the purchase price for the Property in
cash in immediately available funds in accordance with section 2.1 hereof.
(e) The Title Company shall issue to Buyer the title insurance policy
described in section 7.2 hereof.
8.2 Possession. Seller shall transfer possession of the Real Property to
----------
Buyer on the Closing Date. Seller shall, on the Closing Date, deliver to Buyer
all of the Permits and the Agreements in the possession of Seller.
8.3 Closing Costs. Seller shall pay the Santa ▇▇▇▇▇ County documentary
-------------
transfer tax in respect of the Grant Deed, one half (1/2) of the City of San
▇▇▇▇ conveyance tax in respect of the Grant Deed, the premium for a standard
CLTA title insurance policy with liability in the amount described in section
7.2 hereof, the escrow fee charged by the Title Company, and the recording fee
for the Grant Deed. Buyer shall pay one half (1/2) of the City of San ▇▇▇▇
conveyance tax in respect of the Grant Deed, and the premium for the title
policy described in section 7.2 to the extent in excess of the premium for a
standard CLTA policy. When the Grant Deed is submitted to the Recorder for
recordation, Seller shall, in accordance with California Revenue and Taxation
Code Section 11932, request that the amount of the documentary transfer tax due
be shown on a separate paper which shall be affixed to the Grant Deed by the
Recorder after the permanent record is made and before the Grant Deed is
returned to Buyer.
8.4 Prorations. At the Closing on the Closing Date, the current
----------
installment of real property taxes and assessments levied against the Real
Property, current utilities, and other current operating and maintenance
expenses of the Real Property shall be prorated between Seller and Buyer as of
the Closing Date on the basis of the actual number of days in the month.
-12-
ARTICLE 9
---------
Reconveyance of Extraneous Parcel
---------------------------------
9.1 Lot Line Adjustment. Buyer and Seller acknowledge that a portion of
-------------------
that certain Assessor's Parcel No. ▇▇▇-▇▇-▇▇▇ ("Parcel 014"), identified as the
"Extraneous Parcel" on Exhibit B attached hereto (the "Extraneous Parcel") is
not intended to be included in the Real Property. Accordingly, Buyer shall
reconvey to Seller the Extraneous Parcel by means of a lot line adjustment after
the Closing. Seller has engaged the Surveyor to survey Parcel 014 and to produce
the maps (the "Lot Line Maps") necessary under the California Subdivision Map
Act (the "SMA") and other applicable state and municipal laws, codes,
ordinances, rules and regulations to obtain a lot line adjustment making the
Extraneous Parcel a part of the legal parcel immediately to the northwest of the
Extraneous Parcel (the "Adjacent Parcel") which is part of the Retained
Property. Buyer shall prepare and file the necessary applications and notices,
and pursue the necessary approvals of the City of San ▇▇▇▇, in order to complete
a lot line adjustment in accordance with the SMA to make the Extraneous Parcel a
part of the Adjacent Parcel (the "Lot Line Adjustment"), and Seller shall
cooperate in such process and, if necessary or helpful, join in such
applications and notices. At the Extraneous Parcel Closing, Seller shall
reimburse Buyer for all reasonable costs incurred in the Lot Line Adjustment.
Buyer and Seller shall use their diligent efforts to complete the Lot Line
Adjustment by the date seventy-five (75) days after the Closing Date. Buyer and
Seller acknowledge that no consideration shall be given for the reconveyance of
the Extraneous Parcel.
9.2 Title to the Extraneous Parcel. Promptly after the date of this
------------------------------
Agreement, Seller shall obtain from the Title Company a preliminary report on
Parcel 014. At the Extraneous Parcel Closing, Buyer shall convey to Seller good
and marketable fee title to the Extraneous Parcel, by a duly executed and
acknowledged Grant Deed (the "Extraneous Parcel Grant Deed") in the form of
Exhibit E-1 attached hereto, free and clear of liens, encumbrances, leases,
easements, restrictions, rights, covenants and conditions, except the following
(the "Extraneous Parcel Permitted Exceptions"): (a) matters of public record as
of the Closing Date immediately prior to transfer of title to Buyer, (b) matters
shown by the Survey or a physical inspection of the Extraneous Parcel, and (c)
any other matters created, permitted or approved by Seller. On the Extraneous
Parcel Closing Date, the Title Company shall be prepared to issue to Seller a
California Land Title Association title policy, with liability equal to one
million two hundred seventy-seven thousand eight hundred seventy-seven and
90/100 dollars ($1,277,877.90), insuring Seller that fee title to the Extraneous
Parcel is vested in Seller subject only to the Extraneous Parcel Permitted
Exceptions and Seller shall receive from the Title Company a letter
acknowledging that for purposes of such title policy, the value of the
Extraneous Parcel is one million two hundred seventy-seven thousand eight
hundred seventy-seven and 90/100 dollars ($1,277,877.90).
9.3 Closing.
-------
(a) Time and Place. The reconveyance of the Extraneous Parcel (the
--------------
"Extraneous Parcel Closing") shall be completed through an escrow with the Title
Company on the date of recordation of the Lot Line Maps (the "Extraneous Parcel
Closing Date"), or at such other place or on such other date as Seller and Buyer
agree in writing. Prior to the Extraneous Parcel
-13-
Closing Date, Seller and Buyer each shall give appropriate written escrow
instructions, consistent with this Agreement, to the Title Company for the
Extraneous Parcel Closing in accordance with this Agreement.
(b) Procedure. Seller and Buyer shall cause the following to occur at the
---------
Extraneous Parcel Closing on the Extraneous Parcel Closing Date:
(i) The Extraneous Parcel Grant Deed, duly executed and acknowledged
by Buyer, shall be recorded in the Official Records of Santa ▇▇▇▇▇ County,
California.
(ii) Buyer shall date as of the Extraneous Parcel Closing Date,
execute and deliver to Buyer (i) a Certificate of Nonforeign Status in the
form of Exhibit L-1 attached hereto, and (ii) a California Form 590-RE
Withholding Exemption Certificate for Real Estate Sales.
(iii) The Title Company shall issue to Seller the title insurance
policy described in section 9.2 hereof.
(c) Closing Costs. Seller shall pay the Santa ▇▇▇▇▇ County documentary
-------------
transfer tax in respect of the Extraneous Parcel Grant Deed, the City of San
▇▇▇▇ conveyance tax in respect of the Extraneous Parcel Grant Deed, the escrow
fee charged by the Title Company, the recording fee for the Extraneous Parcel
Grant Deed and the premium for the title policy described in section 9.2 hereof.
When the Extraneous Parcel Grant Deed is submitted to the Recorder for
recordation, Buyer shall, in accordance with California Revenue and Taxation
Code Section 11932, request that the amount of the documentary transfer tax due
be shown on a separate paper which shall be affixed to the Extraneous Parcel
Grant Deed by the Recorder after the permanent record is made and before the
Extraneous Parcel Grant Deed is returned to Seller.
(d) Acceptance of Title. Seller's acceptance of the Extraneous Parcel
-------------------
Grant Deed from Buyer at the Extraneous Parcel Closing on the Extraneous Parcel
Closing Date and the issuance of a title insurance policy to Seller by the Title
Company on the Extraneous Parcel Closing Date shall conclusively establish that
Buyer has reconveyed the Extraneous Parcel to Seller as required by this
Agreement and shall discharge in full Buyer's obligations under section 9.2
hereof with respect to title to the Extraneous Parcel.
ARTICLE 10
----------
General
-------
10.1 Notices. All notices and other communications under this Agreement
-------
shall be properly given only if made in writing and mailed by certified mail,
return receipt requested, postage prepaid, or delivered by hand (including
messenger or recognized delivery, courier or air express service) or by
facsimile transmission to the party at the address or facsimile number set forth
in this section 10.1 or such other address or facsimile number as such party may
designate by notice to the other party. Such notices and other communications
shall be effective on the date of receipt (evidenced by the certified mail
receipt) if mailed or on the date of such hand delivery if hand delivered or by
telephone confirmation of receipt if by facsimile transmission, so
-14-
long as a copy is also delivered via U.S. mail, postage prepaid. If any such
notice or other communication is not received or cannot be delivered because the
receiving party changed its address or facsimile number and failed to give
notice of such change to the sending party or due to a refusal to accept by the
receiving party, such notice or other communication shall be effective on the
date delivery is attempted. Any notice or other communication under this
Agreement may be given on behalf of a party by the attorney for such party.
(a) The address of Seller is IBM Real Estate Services, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇, attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇;
with a copy given simultaneously to IBM Real Estate Services, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇, attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Esq.; and with a copy given simultaneously to Pillsbury Madison & Sutro LLP, ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, facsimile number (415) 983-
1200, attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
(b) The address of Buyer is Equinix, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇. ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇;
with a copy given simultaneously to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & Sutcliffe, LLP, Old
Federal Reserve Bank Building, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇, attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq.
10.2 Attorneys' Fees. If there is any legal action or proceeding between
---------------
Seller and Buyer arising from or based on this Agreement, the unsuccessful party
to such action or proceeding shall pay to the prevailing party all costs and
expenses, including reasonable attorneys' fees, incurred by such prevailing
party in such action or proceeding and in any appeal in connection therewith. If
such prevailing party recovers a judgment in any such action, proceeding or
appeal, such costs, expenses and attorneys' fees shall be included in and as a
part of such judgment.
10.3 Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of California.
10.4 Construction. Seller and Buyer acknowledge that each party and its
------------
counsel have reviewed and revised this Agreement and that any rule of
construction to the effect that ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any document executed and delivered by either party in connection with the
transactions contemplated by this Agreement. The captions in this Agreement are
for convenience of reference only and shall not be used to interpret this
Agreement.
10.5 Survival. All covenants in this Agreement that are not fully
--------
performed at or before Closing shall survive Closing.
10.6 Terms Generally. The defined terms in this Agreement shall apply
---------------
equally to both the singular and the plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The term "person" includes individuals, corporations,
partnerships, trusts, other legal entities, organizations and associations, and
any government or governmental agency or authority. The
-15-
words "include," "includes" and "including" shall be deemed to be followed by
the phrase "without limitation." The words "approval," "consent" and "notice"
shall be deemed to be preceded by the word "written."
10.7 Further Assurances. From and after the date of this Agreement, Seller
------------------
and Buyer agree to do such things, perform such acts, and make, execute,
acknowledge and deliver such documents as may be reasonably necessary or proper
and usual to complete the transactions contemplated by this Agreement and to
carry out the purpose of this Agreement in accordance with this Agreement.
10.8 Partial Invalidity and Waiver. If any provision of this Agreement is
-----------------------------
determined by a proper court to be invalid, illegal or unenforceable, such
invalidity, illegality or unenforceability shall not affect the other provisions
of this Agreement and this Agreement shall remain in full force and effect
without such invalid, illegal or unenforceable provision. No waiver of any
provision of this Agreement or any breach of this Agreement shall be effective
unless such waiver is in writing and signed by the waiving party and any such
waiver shall not be deemed a waiver of any other provision of this Agreement or
any other or subsequent breach of this Agreement.
10.9 Waiver of Jury Trial. Seller and Buyer each hereby expressly,
--------------------
irrevocably, fully and forever releases, waives and relinquishes any and all
right to trial by jury in any claim, demand, action, suit, proceeding or cause
of action in which Seller and Buyer are parties, which in any way (directly or
indirectly) arises out of, results from or relates to any of the following, in
each case whether now existing or hereafter arising and whether based on
contract or tort or any other legal basis: This Agreement; any document executed
or delivered pursuant to this Agreement; any past, present or future act,
omission, conduct or activity with respect to this Agreement; any transaction,
event or occurrence contemplated by this Agreement; the performance of any
obligation or the exercise of any right under this Agreement; or the enforcement
of this Agreement. Seller and Buyer each agrees that this Agreement constitutes
written consent that trial by jury shall be waived in any such claim, demand,
action, suit, proceeding or other cause of action pursuant to California Code of
Civil Procedure Section 631 and agrees that Seller and Buyer each shall have the
right at any time to file this Agreement with the clerk or judge of any court in
which any such claim, demand, action, suit, proceeding or other cause of action
may be pending as statutory written consent to waiver of trial by jury in
accordance with California Code of Civil Procedure Section 631.
10.10 No Third-Party Beneficiaries. No person other than Buyer and Seller
----------------------------
shall have any rights under this Agreement, it being the intention of Buyer and
Seller that this Agreement have no third-party beneficiaries whatsoever.
10.11 Confidentiality. The terms of that certain Agreement of Nondisclosure
---------------
of Confidential Information dated April 13, 2000 between the parties shall
remain in full force and effect until the Closing Date. In addition, Seller and
Buyer each agree not to disclose the terms of this Agreement to any person,
other than to its respective employees, agents, consultants, contractors and
outside counsel, without the other party's prior written consent except as may
be required by applicable law or by Buyer's lending institution.
-16-
10.12 Miscellaneous. The Exhibits attached to this Agreement are made a
-------------
part of this Agreement. Buyer shall not assign or transfer this Agreement, or
any interest in or part of this Agreement, without the prior consent of Seller,
except that Buyer may, without Seller's consent, assign its rights and
obligations hereunder at Closing in connection with a synthetic lease,
sale/leaseback transaction or any other financing upon written notice to Seller
not less than five (5) business days prior to Closing, provided, however, that
Equinix, Inc. remains primarily liable for fulfilling the obligations of Buyer
under this Agreement and Seller shall continue to deal with Equinix, Inc. on all
closing and post-closing matters contemplated by this Agreement. No such
assignment or transfer shall release Buyer from any obligation or liability
under this Agreement. Subject to the foregoing, this Agreement shall benefit and
bind Seller and Buyer and their respective successors and assigns. Time is of
the essence of this Agreement. This Agreement may be executed in counterparts,
each of which shall be an original, but all of which shall constitute one and
the same Agreement. This Agreement may not be amended or modified except by a
written agreement signed by Seller and Buyer. This Agreement constitutes the
entire and integrated agreement between Seller and Buyer relating to the
purchase and sale of the Property and supersedes all prior agreements,
understandings, offers and negotiations, oral or written, with respect to the
sale of the Property.
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of the
date first hereinabove written.
INTERNATIONAL BUSINESS MACHINES
CORPORATION, a New York corporation
By ______________________________________
Title_________________________________
EQUINIX, INC., a Delaware corporation
By_______________________________________
Title__________________________________
-17-
PRELIMINARY REPORT
------------------
EXHIBIT A
---------
[MAP OF REAL PROPERTY]
----------------------
EXHIBIT B
---------
PERMITS
-------
None
EXHIBIT C
---------
AGREEMENTS
----------
None
EXHIBIT D
---------
Recorded at Request of:
First American Title Insurance Company
When Recorded Mail to:
_______________________________
_______________________________
_______________________________
Mail Tax Statements to:
_______________________________
_______________________________
_______________________________
GRANT DEED
----------
For valuable consideration, receipt of which is acknowledged, INTERNATIONAL
-------------
BUSINESS MACHINES CORPORATION, a New York corporation, hereby grants to EQUINIX,
----------------------------- -------
INC., a ______________________ the real property in the City of San ▇▇▇▇, County
---
of Santa ▇▇▇▇▇, State of California, described in Exhibit A attached hereto and
made a part hereof.
Dated: ___________, 2000.
INTERNATIONAL BUSINESS MACHINES
CORPORATION, a New York corporation
By_________________________________
Title____________________________
EXHIBIT E
---------
EXHIBIT A
---------
GRANT DEED
----------
All of the real property in the City of ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, described as follows:
EXHIBIT E
---------
STATE OF CALIFORNIA, )
) ss.
County of ____________________. )
On ____________, 2000, before me, _______________________________________,
a Notary Public in and for the State of California, personally appeared
_____________________ __________________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person whose name
is subscribed to the within instrument, and acknowledged to me that he or she
executed the within instrument in his or her authorized capacity and that, by
his or her signature on the within instrument, the person or entity upon behalf
of which he or she acted executed the within instrument.
WITNESS my hand and official seal.
Signature _________________________ (Seal)
EXHIBIT E
---------
Recorded at Request of:
First American Title Insurance Company
When Recorded Mail to:
______________________________
______________________________
______________________________
Mail Tax Statements to:
______________________________
______________________________
______________________________
GRANT DEED
----------
For valuable consideration, receipt of which is acknowledged, EQUINIX,
-------
INC., a Delaware corporation, hereby grants to INTERNATIONAL BUSINESS MACHINES
---- -------------------------------
CORPORATION, a New York corporation, the real property in the City of San ▇▇▇▇,
-----------
County of Santa ▇▇▇▇▇, State of California, described in Exhibit A attached
hereto and made a part hereof.
Dated: ___________, 2000.
EQUINIX, INC., a Delaware corporation
By __________________________________
Title ____________________________
EXHIBIT E-1
-----------
EXHIBIT A
---------
GRANT DEED
----------
All of the real property in the City of San ▇▇▇▇, County of Santa ▇▇▇▇▇,
State of California, described as follows:
EXHIBIT E-1
-----------
STATE OF CALIFORNIA, )
) ss.
County of ____________________. )
On ____________, 2000, before me, _______________________________________,
a Notary Public in and for the State of California, personally appeared
_____________________ __________________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person whose name
is subscribed to the within instrument, and acknowledged to me that he or she
executed the within instrument in his or her authorized capacity and that, by
his or her signature on the within instrument, the person or entity upon behalf
of which he or she acted executed the within instrument.
WITNESS my hand and official seal.
Signature _________________________ (Seal)
EXHIBIT E-1
-----------
ASSIGNMENT
----------
THIS ASSIGNMENT, made as of ___________, 2000, by and between INTERNATIONAL
-------------
BUSINESS MACHINES CORPORATION, a New York corporation ("Seller"), and EQUINIX,
----------------------------- -------
INC., a ___________________ ("Buyer"),
----
W I T N E S S E T H:
For valuable consideration, receipt of which is acknowledged, Seller and
Buyer agree as follows with respect to the real property (the "Real Property")
in the City of San ▇▇▇▇, Santa ▇▇▇▇▇ County, California, described in Exhibit A
attached hereto and made a part hereof:
1. Assignment and Assumption.
-------------------------
(a) Seller hereby assigns, transfers and delivers to Buyer all right,
title and interest of Seller in and to (i) all development approvals,
entitlements and permits relating to the Real Property described in Exhibit B
attached hereto and made a part hereof, and (ii) Seller's interest in all
agreements (the "Agreements") relating to the Real Property described in Exhibit
C attached hereto and made a part hereof.
(b) Buyer hereby accepts the foregoing assignment, and assumes and agrees
to perform all of the covenants and agreements in the Agreements to be performed
by Seller thereunder from and after the date of this Assignment.
2. Indemnification.
---------------
(a) Seller shall indemnify and defend Buyer against and hold Buyer
harmless from all claims, demands, liabilities, losses, damages, costs and
expenses, including, without limitation, reasonable attorneys' fees and
disbursements, that are caused by any failure by Seller to perform the
obligations of Seller under the Agreements before the date of this Assignment.
(b) Buyer shall indemnify and defend Seller against and hold Seller
harmless from all claims, demands, liabilities, losses, damages, costs and
expenses, including, without limitation, reasonable attorneys' fees and
disbursements, that are caused by any failure by Buyer to perform the
obligations of Seller under the Agreements on or after the date of this
Assignment.
3. Further Assurances. Seller and Buyer agree to execute such other
------------------
documents and perform such other acts as may be reasonably necessary or proper
and usual to effect this Assignment.
4. Attorneys' Fees. If there is any legal action or proceeding between
---------------
Seller and Buyer arising from or based on this Assignment, the unsuccessful
party to such action or proceeding shall pay to the prevailing party all costs
and expenses, including, without limitation, reasonable attorneys' fees and
disbursements, incurred by such prevailing party in such action or proceeding
and in any appeal in connection therewith. If such prevailing party recovers a
judgment in any such action, proceeding or appeal, such costs, expenses and
attorneys' fees and disbursements shall be included in and as part of such
judgment.
-1-
EXHIBIT F
---------
5. Governing Law. This Assignment shall be governed by and construed
-------------
in accordance with the laws of the State of California.
6. Successors and Assigns. This Assignment shall be binding upon and
----------------------
shall inure to the benefit of Seller and Buyer and their respective successors
and assigns.
IN WITNESS WHEREOF, Seller and Buyer have executed this Assignment as of
the date first hereinabove written.
INTERNATIONAL BUSINESS MACHINES
CORPORATION, a New York corporation
By ________________________________
Title __________________________
EQUINIX, INC., a _______________
corporation
By ________________________________
Title __________________________
-2-
EXHIBIT F
---------
EXHIBIT A
---------
ASSIGNMENT
----------
Real Property
-------------
All of the real property in the City of ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, described as follows:
EXHIBIT F
---------
EXHIBIT B
---------
ASSIGNMENT
----------
Permits
-------
EXHIBIT F
---------
EXHIBIT C
---------
ASSIGNMENT
----------
Agreements
----------
EXHIBIT F
---------
SELLER'S CLOSING CERTIFICATE
----------------------------
For valuable consideration, receipt of which is acknowledged, INTERNATIONAL
-------------
BUSINESS MACHINES CORPORATION, a New York corporation ("Seller"), hereby
-----------------------------
certifies to EQUINIX, INC., a _______________ ("Buyer"), that all
-------------
representations and warranties made by Seller in section 5.1 of the Purchase
Agreement (the "Purchase Agreement") dated ________ __, 2000, between Seller and
Buyer are true and correct on and as of the date of this Certificate. This
Certificate is executed by Seller and delivered to Buyer pursuant to the
Purchase Agreement.
Dated: ____________, 2000.
INTERNATIONAL BUSINESS MACHINES
CORPORATION, a New York corporation
By ____________________________________
Title ______________________________
EXHIBIT G
---------
SEWER CONNECTION EASEMENT
-------------------------
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
_____________________
_____________________
_____________________
Attn: ______________________
Easement Agreement
------------------
(Sewer and Electrical Connection)
This Easement Agreement (this "Agreement") is made as of this ___ day of
____________, 2000 by and between INTERNATIONAL BUSINESS MACHINES CORPORATION, a
-------------------------------------------
New York corporation ("IBM"), and EQUINIX, INC., a ________ corporation
-------------
("Equinix").
WHEREAS, is Equinix the owner of that certain real property described in
Exhibit A attached hereto (the "Dominant Tenement"); and
WHEREAS, IBM is the owner of that certain real property described in
Exhibit B attached hereto (the "Servient Tenement"); and
WHEREAS, IBM desires to grant to Equinix, and Equinix desires to accept, an
easement for underground pipes necessary in order to connect sewer systems on
the Dominant Tenement to public storm water and sanitary sewer facilities,
subject to the conditions, obligations and rights set forth in this Agreement.
The parties hereto hereby agree as follows:
1. Sewer Connection Easement. IBM, as the owner of the Servient Tenement,
-------------------------
hereby grants to Equinix, as the owner of the Dominant Tenement, an easement to
construct, lay, inspect, maintain, operate and replace sewer pipes, and
appurtenances and appliances related thereto, within that certain strip of land
ten (10) feet in width shown on the map contained in Exhibit C attached
---------
hereto(the "Easement Area") and to connect such pipes, appurtenances or
appliances to the public storm water and sanitary sewer facilities (the "Public
Facilities") at the location(s) shown on Exhibit C attached hereto, together
---------
with a right of way along the Easement Area and the right of ingress to, egress
from and access to the Easement Area, from, over and across the Servient
Tenement for the purpose of exercising the rights granted herein, subject to the
conditions, obligations and rights set forth in this Agreement (the "Sewer
Connection Easement").
EXHIBIT H
---------
2. Electrical Connection Easement. IBM, as the owner of the Servient
------------------------------
Tenement, hereby grants to Equinix, as the owner of the Dominant Tenement, an
easement (the "Electrical Connection Easement") to construct, lay, inspect,
maintain, operate and replace underground electrical transmission lines, and
appurtenances and appliances related thereto, from the existing substation on
the Servient Tenement along White Plains Road to the Dominant Tenement in a
location and manner to be reasonably agreed between IBM and Equinix (the
"Easement Area"). The Electrical Connection Easement shall include a right of
way along the Easement Area for the ingress to, egress from and access to the
Easement Area, from, over and across the Servient Tenement for the purpose of
exercising the rights granted herein, subject to the conditions, obligations and
rights set forth in this Agreement
3. Restrictions on IBM. IBM shall not erect, construct or place, nor
-------------------
permit the erection, construction or placement of, any building or other
structure within either of the Easement Areas, nor shall IBM drill or operate
any well, plant any trees or excavate within either of the Easement Areas.
3. Obligations of Equinix. Equinix, and any of its contractors, agents
----------------------
or employees, in exercising the rights granted herein, shall give reasonable
prior notice to IBM specifying the dates and times of entry and Equinix's
intended activity on the Easement Area. Prior to entry on the Easement Area,
Equinix shall obtain the prior written consent of IBM, which consent shall not
be unreasonably withheld. Equinix, and any of its contractors, agents or
employees, shall replace any earth removed by it and restore the surface of the
ground around any excavation of either of the Easement Areas or around the
Public Facilities to as near the same condition as it was in prior to such
excavation as is practicable. Equinix shall cause all construction to be
conducted in a good workmanlike manner and shall use its reasonable efforts to
minimize any disruption of use of the Servient Tenement, including, without
limitation, the activities of IBM or its employees, agents or contractors.
4. Indemnification. Equinix shall hold harmless, indemnify, protect and
---------------
defend IBM against any claim, demand, action, cause of action, damage, loss,
liability, cost and expense (including reasonable attorneys' fees) that arises
out of or results from the use or misuse of the Sewer Connection Easement or the
Electrical Connection Easement by Equinix or its employees, agents, operators,
licensees or contractors, except that IBM shall not be indemnified for any such
claim, demand, action, cause of action, damage, loss, liability, cost or expense
that arises out of or results from the negligent or willful act or omission of
IBM or its employees, agents, operators, licensees or contractors. During any
period of construction, Equinix shall carry such liability insurance as may be
reasonably required by IBM.
5. Binding Effect. The rights, obligations, terms and conditions of the
--------------
easement, covenants and restrictions described in this Agreement shall run with
the Servient Tenement and shall be binding upon the persons holding any interest
in the Servient Tenement and upon their respective heirs, personal
representatives, successors and assigns and shall inure to the benefit of the
persons holding any interest in the Dominant Tenement and to their respective
heirs, personal representatives, successors and assigns.
6. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of California.
EXHIBIT H
---------
7. Amendment. This Agreement may be amended only by an instrument in
---------
writing signed by the owners of the Servient Tenement and the Dominant Tenement
and recorded in the Official Records of Santa ▇▇▇▇▇ County, State of California.
EXHIBIT H
---------
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first hereinabove written.
INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York corporation
By _________________________________________
Its _____________________________________
EQUINIX, INC., a _____________ corporation
By _________________________________________
Its _____________________________________
EXHIBIT H
---------
STATE OF CALIFORNIA )
) ss.
COUNTY OF ___________ )
On ___________ ___, 2000, before me, ____________________________________,
a Notary Public in and for the State of California, personally appeared
________________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument, and acknowledged to me that [he] executed the within instrument in
[his] authorized capacity and that, by [his] signature on the within instrument,
the person or entity upon behalf of which [he] acted executed the within
instrument.
WITNESS my hand and official seal.
(Seal) __________________________
Signature
STATE OF CALIFORNIA )
) ss.
COUNTY OF ___________ )
On ___________ ___, 2000, before me, _____________________________________,
a Notary Public in and for the State of California, personally appeared
________________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument, and acknowledged to me that [he] executed the within instrument in
[his] authorized capacity and that, by [his] signature on the within instrument,
the person or entity upon behalf of which [he] acted executed the within
instrument.
WITNESS my hand and official seal.
(Seal) __________________________
Signature
EXHIBIT H
---------
Exhibit A
---------
[Legal Description - Dominant Tenement]
EXHIBIT H
---------
Exhibit B
---------
[Legal Description - Servient Tenement]
EXHIBIT H
---------
Exhibit C
---------
[Sewer Connection Easement]
EXHIBIT H
---------
UTILITY EASEMENT
----------------
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Pillsbury Madison & Sutro LLP
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Easement Agreement
------------------
(Utilities)
This Easement Agreement (this "Agreement") is made as of this ___ day of
____________, 2000 by and between INTERNATIONAL BUSINESS MACHINES CORPORATION, a
-------------------------------------------
New York corporation ("IBM"), and EQUINIX, INC., a ________ corporation
-------------
("Equinix").
WHEREAS, IBM is the owner of that certain real property described in
Exhibit A attached hereto (the "Dominant Tenement"); and
WHEREAS, Equinix is the owner of that certain real property described in
Exhibit B attached hereto (the "Servient Tenement"); and
WHEREAS, Equinix desires to grant to IBM, and IBM desires to accept, an
easement for underground utilities benefiting the Dominant Tenement, subject to
the conditions, obligations and rights set forth in this Agreement.
The parties hereto hereby agree as follows:
1. Utilities Easement. Equinix, as the owner of the Servient Tenement,
------------------
hereby grants to IBM, as the owner of the Dominant Tenement, an easement to
construct, place, inspect, maintain, replace and remove underground utilities
within that certain strip of land ten (10) feet in width shown on the map
contained in Exhibit C attached hereto(the "Easement Area"), together with a
right of way along the Easement Area and the right of ingress to, egress from
and access to the Easement Area, from, over and across the Servient Tenement for
the purpose of exercising the rights granted herein, subject to the conditions,
obligations and rights set forth in this Agreement (the "Utilities Easement").
2. Restrictions on Equinix. Equinix shall not erect, construct or place,
-----------------------
nor permit the erection, construction or placement of, any building or other
structure within the Easement Area, nor shall Equinix drill or operate any well,
plant any trees or excavate within the Easement Area.
EXHIBIT I
---------
3. Obligations of IBM. IBM, and any of its contractors, agents or
------------------
employees, in exercising the rights granted herein, shall give reasonable prior
notice to Equinix specifying the dates and times of entry and IBM's intended
activity on the Easement Area. Prior to entry on the Easement Area, IBM shall
obtain the prior written consent of Equinix, which consent shall not be
unreasonably withheld. IBM, and any of its contractors, agents or employees,
shall replace any earth removed by it and restore the surface of the ground
around any excavation of the Easement Area to as near the same condition as it
was in prior to such excavation as is practicable. IBM shall cause all
construction to be conducted in a good workmanlike manner and shall use its
reasonable efforts to minimize any disruption of use of the Servient Tenement,
including, without limitation, the activities of Equinix or its tenants,
contractors or agents thereon.
4. Indemnification. IBM shall hold harmless, indemnify, protect and
---------------
defend Equinix against any claim, demand, action, cause of action, damage, loss,
liability, cost and expense (including reasonable attorneys' fees) that arises
out of or results from the use or misuse of the Utilities Easement by IBM or its
employees, agents, operators, licensees or contractors, except that Equinix
shall not be indemnified for any such claim, demand, action, cause of action,
damage, loss, liability, cost or expense that arises out of or results from the
negligent or willful act or omission of Equinix or its employees, agents,
operators, licensees or contractors. During any period of construction, IBM
shall carry such liability insurance as may be reasonably required by Equinix.
5. Binding Effect. The rights, obligations, terms and conditions of the
--------------
easement, covenants and restrictions described in this Agreement shall run with
the Servient Tenement and shall be binding upon the persons holding any interest
in the Servient Tenement and upon their respective heirs, personal
representatives, successors and assigns and shall inure to the benefit of the
persons holding any interest in the Dominant Tenement and to their respective
heirs, personal representatives, successors and assigns.
6. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of California.
7. Amendment. This Agreement may be amended only by an instrument in
---------
writing signed by the owners of the Servient Tenement and the Dominant Tenement
and recorded in the Official Records of Santa ▇▇▇▇▇ County, State of California.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first hereinabove written.
INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York corporation
By ____________________________________
Its ________________________________
EQUINIX, INC., a _____________ corporation
EXHIBIT I
---------
By ____________________________________
Its ________________________________
EXHIBIT I
---------
STATE OF CALIFORNIA )
) ss.
COUNTY OF ___________ )
On ___________ ___, 2000, before me, _____________________________________,
a Notary Public in and for the State of California, personally appeared
________________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument, and acknowledged to me that [he] executed the within instrument in
[his] authorized capacity and that, by [his] signature on the within instrument,
the person or entity upon behalf of which [he] acted executed the within
instrument.
WITNESS my hand and official seal.
(Seal) __________________________
Signature
STATE OF CALIFORNIA )
) ss.
COUNTY OF ___________ )
On ___________ ___, 2000, before me, _____________________________________,
a Notary Public in and for the State of California, personally appeared
________________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument, and acknowledged to me that [he] executed the within instrument in
[his] authorized capacity and that, by [his] signature on the within instrument,
the person or entity upon behalf of which [he] acted executed the within
instrument.
WITNESS my hand and official seal.
(Seal) __________________________
Signature
EXHIBIT I
---------
Exhibit A
---------
[Legal Description - Dominant Tenement]
EXHIBIT I
---------
Exhibit B
---------
[Legal Description - Servient Tenement]
EXHIBIT I
---------
Exhibit C
---------
[Utilities Easement]
EXHIBIT I
---------
BUYER'S CLOSING CERTIFICATE
---------------------------
For valuable consideration, receipt of which is acknowledged, EQUINIX,
INC., a _______________ ("Buyer"), hereby certifies to INTERNATIONAL BUSINESS
MACHINES CORPORATION, a New York corporation ("Seller"), that all
representations and warranties made by Buyer in section 5.2 of the Purchase
Agreement (the "Purchase Agreement") dated ___________ __, 2000, between Seller
and Buyer are true and correct on and as of the date of this Certificate. This
Certificate is executed by Buyer and delivered to Seller pursuant to the
Purchase Agreement.
Dated: ____________, 2000.
EQUINIX, INC., a __________________
corporation
By _____________________________________
Title _______________________________
EXHIBIT J
---------
ENTRANCE ROAD EASEMENT
----------------------
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Pillsbury Madison & Sutro LLP
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Easement Agreement
------------------
(Existing Entrance Road)
This Easement Agreement (this "Agreement") is made as of this ___ day of
____________, 2000 by and between INTERNATIONAL BUSINESS MACHINES CORPORATION, a
-------------------------------------------
New York corporation ("IBM"), and EQUINIX, INC., a ________ corporation
-------------
("Equinix").
WHEREAS, IBM is the owner of that certain real property described in
Exhibit A attached hereto (the "Dominant Tenement"); and
---------
WHEREAS, Equinix is the owner of that certain real property described in
Exhibit B attached hereto (the "Servient Tenement"); and
---------
WHEREAS, IBM is selling to Equinix the Servient Tenement pursuant to that
certain Purchase Agreement dated as of _________, 2000 (the "Purchase
Agreement"), under which Equinix agreed to grant to IBM the exclusive right to
use the road designated as the "Existing Entrance Road" on Exhibit C attached
---------
hereto for ingress to and egress from the Dominant Tenement for the term set
forth in Paragraph 2 hereof; and
WHEREAS, Equinix desires to grant to IBM, pursuant to the Purchase
Agreement, an exclusive easement for ingress, egress and access to, from, over
and across the Existing Entrance Road, subject to the conditions, obligations
and rights set forth in this Agreement.
The parties hereto hereby agree as follows:
1. Existing Entrance Road Easement. Equinix, as the owner of the
-------------------------------
Servient Tenement, hereby grants to IBM, as the owner of the Dominant Tenement
and for the use of IBM and its employees, agents, operators, licensees and
contractors, an exclusive easement for vehicular and pedestrian ingress to,
egress from and access to the Dominant Tenement, from, over and across the
Existing Entrance Road, together with the right to maintain IBM's manned
security gate located on the Existing Entrance Road, subject to the conditions,
obligations and rights set forth in this Agreement (the "Existing Entrance Road
Easement"). Throughout the
EXHIBIT K
---------
duration of the Existing Entrance Road Easement, no persons other than IBM and
its employees, agents, operators, licensees and contractors shall be permitted
to use the Existing Entrance Road and IBM personnel or contractors shall have
the right to exclude other persons, including Equinix; provided that after
reasonable notice, IBM shall provide Equinix, its agents and contractors access
to the area covered by this Existing Entrance Road Easement to the extent
reasonably necessary for surveying or testing in connection with Equinix's
development of the Servient Tenement. Notwithstanding the foregoing, IBM shall
have the right to exclude any construction vehicles or construction equipment
from access across the Existing Entrance Road Easement area.
2. Duration. Upon the earlier of (i) one hundred eighty (180) days after
--------
the date hereof (which date shall be extended by the number of days the
completion of the Manassas Extension Project is delayed due to Force Majeure) or
(ii) completion of the Manassas Extension Project, the Existing Entrance Road
Easement shall automatically terminate and the terms and provisions contained
herein shall cease to burden the Servient Tenement. In such event, upon written
request from Equinix, IBM shall execute a document evidencing the termination of
the Existing Entrance Road Easement. As used herein, the terms "Manassas
Extension Project" and "Force Majeure" shall have the meanings ascribed to them
in the Purchase Agreement.
3. Obligations of Equinix. Equinix shall maintain, repair and replace
----------------------
and shall be liable for and pay for the entire cost of reasonable and normal
maintenance, repair and replacement of the Existing Entrance Road.
4. Indemnification. IBM shall hold harmless, indemnify, protect and
---------------
defend Equinix against any claim, demand, action, cause of action, damage, loss,
liability, cost and expense (including reasonable attorneys' fees) that arises
out of or results from the use or misuse of the Existing Entrance Road Easement
by IBM or its employees, agents, operators, licensees or contractors, except
that Equinix shall not be indemnified for any such claim, demand, action, cause
of action, damage, loss, liability, cost or expense that arises out of or
results from the negligent or willful act or omission of Equinix or its
employees, agents, operators, licensees or contractors.
5. Binding Effect. The rights, obligations, terms and conditions of the
--------------
easement, covenants and restrictions described in this Agreement shall run with
the Servient Tenement and shall be binding upon the Servient Tenement and the
persons holding any interest in the Servient Tenement and upon their respective
heirs, personal representatives, successors and assigns and shall inure to the
benefit of the persons holding any interest in the Dominant Tenement and to
their respective heirs, personal representatives, successors and assigns.
6. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of California.
7. Amendment. This Agreement may be amended only by an instrument in
---------
writing signed by the owners of the Servient Tenement and the Dominant Tenement
and recorded in the Official Records of Santa ▇▇▇▇▇ County, State of California.
EXHIBIT K
---------
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first hereinabove written.
INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York corporation
By __________________________________________
Its ______________________________________
EQUINIX, INC., a _____________ corporation
By __________________________________________
Its ______________________________________
EXHIBIT K
---------
STATE OF CALIFORNIA )
) ss.
COUNTY OF ___________ )
On ___________ ___, 2000, before me, _____________________________________,
a Notary Public in and for the State of California, personally appeared
________________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument, and acknowledged to me that [he] executed the within instrument in
[his] authorized capacity and that, by [his] signature on the within instrument,
the person or entity upon behalf of which [he] acted executed the within
instrument.
WITNESS my hand and official seal.
(Seal) __________________________
Signature
STATE OF CALIFORNIA )
) ss.
COUNTY OF ___________ )
On ___________ ___, 2000, before me, _____________________________________,
a Notary Public in and for the State of California, personally appeared
________________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument, and acknowledged to me that [he] executed the within instrument in
[his] authorized capacity and that, by [his] signature on the within instrument,
the person or entity upon behalf of which [he] acted executed the within
instrument.
WITNESS my hand and official seal.
(Seal) __________________________
Signature
EXHIBIT K
---------
Exhibit A
---------
[Legal Description - Dominant Tenement]
EXHIBIT K
---------
Exhibit B
---------
[Legal Description - Servient Tenement]
EXHIBIT K
---------
Exhibit C
---------
[Existing Entrance Road]
EXHIBIT K
---------
CERTIFICATE OF NONFOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a transferee of a
U.S. real property interest must withhold tax if the transferor is a foreign
person. To inform the transferee that withholding of tax is not required upon
the disposition of a U.S. real property interest by INTERNATIONAL BUSINESS
----------------------
MACHINES CORPORATION, a New York corporation ("Seller"), the undersigned hereby
--------------------
certifies the following on behalf of Seller:
1. Seller is not a foreign corporation, foreign partnership, foreign
trust or foreign estate (as those terms are defined in the Internal Revenue Code
and Income Tax Regulations);
2. Seller's U.S. employer identification number is ___________; and
3. Seller's office address is ____________________________________.
Seller understands that this certification may be disclosed to the Internal
Revenue Service by the transferee and that any false statement contained herein
could be punished by fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined this certificate
and to the best of my knowledge and belief it is true, correct and complete, and
I further declare that I have authority to sign this document on behalf of
Seller.
Dated: ____________, 2000.
INTERNATIONAL BUSINESS MACHINES
CORPORATION, a New York corporation
By ____________________________________
Title ______________________________
EXHIBIT L
---------
CERTIFICATE OF NONFOREIGN STATUS
================================
Section 1445 of the Internal Revenue Code provides that a transferee of a
U.S. real property interest must withhold tax if the transferor is a foreign
person. To inform the transferee that withholding of tax is not required upon
the disposition of a U.S. real property interest by EQUINIX, INC., a Delaware
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corporation ("Seller"), the undersigned hereby certifies the following on behalf
of Seller:
1. Seller is not a foreign corporation, foreign partnership, foreign
trust or foreign estate (as those terms are defined in the Internal Revenue Code
and Income Tax Regulations);
2. Seller's U.S. employer identification number is ___________; and
3. Seller's office address is ____________________________________.
Seller understands that this certification may be disclosed to the Internal
Revenue Service by the transferee and that any false statement contained herein
could be punished by fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined this certificate
and to the best of my knowledge and belief it is true, correct and complete, and
I further declare that I have authority to sign this document on behalf of
Seller.
Dated: ____________, 2000.
EQUINIX, INC., a Delaware corporation
By __________________________________
Title ____________________________
EXHIBIT L-1
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WHITE PLAINS ROAD EASEMENT
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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Pillsbury Madison & Sutro LLP
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Easement Agreement
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(White Plains Road)
This Easement Agreement (this "Agreement") is made as of this ___ day of
____________, 2000 by and between INTERNATIONAL BUSINESS MACHINES CORPORATION, a
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New York corporation ("IBM"), and EQUINIX, INC., a ________ corporation
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("Equinix").
WHEREAS, IBM is the owner of that certain real property described in
Exhibit A attached hereto (the "Dominant Tenement"); and
WHEREAS, Equinix is the owner of that certain real property described in
Exhibit B attached hereto (the "Servient Tenement"); and
WHEREAS, IBM is selling to Equinix the Servient Tenement pursuant to that
certain Purchase Agreement dated as of _________, 2000 (the "Purchase
Agreement"), under which Equinix agreed to grant to IBM the right to use the
road designated as the "White Plains Road" on Exhibit C attached hereto for
ingress to and egress from the Dominant Tenement and for underground utilities,
as more particularly set forth herein; and
WHEREAS, Equinix desires to grant to IBM, pursuant to the Purchase
Agreement, a non-exclusive easement for ingress, egress and access to, from,
over and across White Plains Road and an easement for underground utilities,
subject to the conditions, obligations and rights set forth in this Agreement.
The parties hereto hereby agree as follows:
1. White Plains Road Easement. Equinix, as the owner of the Servient
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Tenement, hereby grants to IBM, as the owner of the Dominant Tenement and for
the use of IBM and its employees, agents, operators, licensees and contractors,
a non-exclusive easement for vehicular and pedestrian ingress to, egress from
and access to the Dominant Tenement, from, over and across White Plains Road as
shown on the map attached hereto as Exhibit C (the "Easement Area"), subject to
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the conditions, obligations and rights set forth in this Agreement (the "White
Plains Road Easement").
EXHIBIT M
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2. Utilities Easement. Equinix, as the owner of the Servient Tenement,
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hereby grants to IBM, as the owner of the Dominant Tenement, an easement to
construct, place, inspect, maintain, replace and remove underground utilities
within the Easement Area, together with a right of way along the Easement Area
and the right of ingress to, egress from and access to the Easement Area, from,
over and across White Plains Road for the purpose of exercising the rights
granted herein, subject to the conditions, obligations and rights set forth in
this Paragraph 2 (the "Utilities Easement").
3. Restrictions on Equinix. Equinix shall not erect, construct or place,
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nor permit the erection, construction or placement of, any building or other
structure on White Plains Road or within the Easement Area, nor shall Equinix
drill or operate any well, plant any trees or excavate in or under White Plains
Road or within the Easement Area.
4. Obligations of IBM. IBM, and any of its contractors, agents or
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employees, in exercising the rights granted in Paragraph 2 hereof, shall replace
any earth removed by it and restore the surface of the ground around any
excavation of the Easement Area to as near the same condition as it was in prior
to such excavation as is practicable. IBM shall cause all construction to be
conducted in a good workmanlike manner and shall use its reasonable efforts to
minimize any disruption of use of White Plains Road or the Servient Tenement.
5. White Plains Road Maintenance. Prior to and until the Manassas
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Completion Date (as defined in the Purchase Agreement), IBM shall maintain,
repair and replace and shall be liable for and pay for the entire cost of
reasonable and normal maintenance, repair and replacement of White Plains Road
to the extent within the Easement Area. From and after the Manassas Completion
Date, Equinix shall maintain, repair and replace and shall be liable for and pay
for the entire cost of reasonable and normal maintenance, repair and replacement
of White Plains Road.
6. Duration. The covenants created herein shall be perpetual, unless
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modified pursuant to Paragraph 10 below.
7. Indemnification. IBM shall hold harmless, indemnify, protect and
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defend Equinix against any claim, demand, action, cause of action, damage, loss,
liability, cost and expense (including reasonable attorneys' fees) that arises
out of or results from the use or misuse of the White Plains Road Easement or
the Utilities Easement by IBM or its employees, agents, operators, licensees or
contractors, except that Equinix shall not be indemnified for any such claim,
demand, action, cause of action, damage, loss, liability, cost or expense that
arises out of or results from the negligent or willful act or omission of
Equinix or its employees, agents, operators, licensees or contractors. During
any period of construction related to the rights granted in Paragraph 2 hereof,
IBM shall carry such liability insurance as may be reasonably required by
Equinix.
8. Binding Effect. The rights, obligations, terms and conditions of the
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easement, covenants and restrictions described in this Agreement shall run with
the Servient Tenement and shall be binding upon the Servient Tenement and the
persons holding any interest in the Servient Tenement and upon their respective
heirs, personal representatives, successors and assigns and
EXHIBIT M
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shall inure to the benefit of the persons holding any interest in the Dominant
Tenement and to their respective heirs, personal representatives, successors and
assigns.
9. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of California.
10. Amendment. This Agreement may be amended only by an instrument in
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writing signed by the owners of the Servient Tenement and the Dominant Tenement
and recorded in the Official Records of Santa ▇▇▇▇▇ County, State of California.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first hereinabove written.
INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York corporation
By ____________________________________
Its _______________________________
EQUINIX, INC., a _____________ corporation
By ____________________________________
Its _______________________________
EXHIBIT M
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STATE OF CALIFORNIA )
) ss.
COUNTY OF ___________ )
On ___________ ___, 2000, before me, _____________________________________,
a Notary Public in and for the State of California, personally appeared
________________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument, and acknowledged to me that [he] executed the within instrument in
[his] authorized capacity and that, by [his] signature on the within instrument,
the person or entity upon behalf of which [he] acted executed the within
instrument.
WITNESS my hand and official seal.
(Seal) __________________________
Signature
STATE OF CALIFORNIA )
) ss.
COUNTY OF ___________ )
On ___________ ___, 2000, before me, _____________________________________,
a Notary Public in and for the State of California, personally appeared
________________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument, and acknowledged to me that [he] executed the within instrument in
[his] authorized capacity and that, by [his] signature on the within instrument,
the person or entity upon behalf of which [he] acted executed the within
instrument.
WITNESS my hand and official seal.
(Seal) __________________________
Signature
EXHIBIT M
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Exhibit A
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[Legal Description - Dominant Tenement]
EXHIBIT M
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Exhibit B
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[Legal Description - Servient Tenement]
EXHIBIT M
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Exhibit C
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[White Plains Road]
EXHIBIT M
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