EXHIBIT 10.1
AGREEMENT OF PURCHASE AND SALE
000 XXXXXXXXXX XXX
XXX XXXXXX, XX
By and Between
COMMUNICATIONS & POWER INDUSTRIES HOLDING CORPORATION
a Delaware corporation
("SELLER")
and
PALO ALTO MEDICAL FOUNDATION,
a California nonprofit public benefit corporation
("BUYER")
Dated: February 7, 2003
TABLE OF CONTENTS
Page
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ARTICLE 1. BACKGROUND AND GENERAL...................................... 1
1.01 Land. ..................................................... 1
1.02 Purchase Property. ........................................ 1
1.03 Purpose. .................................................. 1
1.04 Definitions; Index.......................................... 1
1.05 Effective Date.............................................. 1
1.06 Earlier Agreement........................................... 1
ARTICLE 2. PURCHASE AND SALE........................................... 2
2.01 Purchase and Sale........................................... 2
2.02 Purchase Price.............................................. 2
2.03 Payment..................................................... 2
2.03.A Deposit.............................................. 2
2.03.B Balance of Purchase Price............................ 3
2.04 Liquidated Damages.......................................... 3
2.05 Memorandum of Agreement..................................... 4
2.06 Tax-Deferred Exchange....................................... 4
2.07 Buyer's Remedies............................................ 5
ARTICLE 3. ESCROW...................................................... 5
3.01 Opening..................................................... 5
3.02 Instructions................................................ 5
3.03 Close of Escrow; Buyer's Termination Notice................. 5
3.03.A Generally............................................ 5
3.03.B Seller's Right to Extend............................. 5
3.03.C Seller's Failure to Comply........................... 5
3.03.D Buyer's Obligations on Full Satisfaction of
Note................................................. 6
3.04 Costs....................................................... 6
3.04.A Seller's Costs....................................... 6
3.04.B Buyer's Costs........................................ 6
3.04.C Miscellaneous Costs.................................. 6
3.05 Prorations and Adjustments.................................. 6
3.06 Deliveries to Escrow by Seller.............................. 7
3.06.A Grant Deed........................................... 7
3.06.B Nonforeign Certification............................. 7
3.06.C California Franchise Tax Withholding................. 7
3.06.D Miscellaneous........................................ 7
3.07 Deliveries to Escrow by Buyer............................... 7
3.07.A Closing Payments..................................... 7
3.07.B Miscellaneous........................................ 7
ARTICLE 4. CONDITIONS TO CLOSE OF ESCROW............................... 7
4.01 Buyer's Conditions to Close of Escrow....................... 7
4.01.A Feasibility.......................................... 8
4.01.B Title; Title Policy.................................. 11
4.01.C Additional Agreements................................ 12
4.01.D Varian............................................... 12
4.01.E Altair Technologies Lease............................ 12
4.01.F Consents/Compliance.................................. 12
4.01.G Xxxxxx Health Approval............................... 13
4.01.H Seller's Performance................................. 13
4.01.I Representations and Warranties True.................. 13
4.02 Seller's Conditions to Close of Escrow...................... 13
4.02.A Buyer's Performance.................................. 13
4.02.B Additional Agreements................................ 13
4.02.C Varian............................................... 13
4.02.D Altair Technologies Lease............................ 14
4.02.E Consents/Compliance.................................. 14
4.02.F Representations and Warranties True.................. 14
ARTICLE 5. DISCLOSURES, DISCLAIMERS, REPRESENTATIONS AND
WARRANTIES.................................................. 14
5.01 Natural Hazard Report....................................... 14
5.02 Representations and Warranties in General................... 14
5.02.A Knowledge Representations............................ 14
5.02.B Restatement.......................................... 14
5.03 Representations and Warranties by Seller.................... 14
5.03.A Organization......................................... 15
5.03.B Owner/Authority...................................... 15
5.03.C Parties in Possession................................ 15
5.03.D Hazardous Materials.................................. 15
5.03.E No Default........................................... 15
5.03.F No Condemnation...................................... 16
5.04 Buyer's Representations and Warranties...................... 16
5.04.A Organization......................................... 16
5.04.B Authority............................................ 16
5.04.C Financing............................................ 16
5.04.D As-Is................................................ 16
5.05 Discovery of Inaccuracy..................................... 18
5.05.A Notice............................................... 18
5.05.B Right to Terminate................................... 18
5.05.C Other Rights......................................... 18
5.05.D After Closing........................................ 18
ARTICLE 6. COOPERATION; CASUALTY/CONDEMNATION.......................... 18
6.01 Seller's Cooperation........................................ 18
6.02 Casualty/Condemnation....................................... 19
ARTICLE 7. HAZARDOUS MATERIALS REMEDIATION AND DEMOLITION.............. 19
7.01 Hazardous Materials Remediation............................. 19
7.01.A Remediation Plan..................................... 19
7.01.B Remediation.......................................... 19
7.01.C Termination on Determination of Seller's
Inability to Complete Remediation.................... 20
7.02 Demolition and Removal of Improvements...................... 20
7.03 Hazardous Materials Indemnification......................... 20
ARTICLE 8. MISCELLANEOUS............................................... 21
8.01 Brokers; Commissions........................................ 21
8.01.A Brokers.............................................. 21
8.01.B Representations; Indemnity. ........................ 21
8.02 Notices. .................................................. 21
8.03 Legal; Interpretation....................................... 22
8.04 Successors Bound............................................ 22
8.05 Resolution of Disputes...................................... 22
8.05.A Negotiation.......................................... 23
8.05.B Provisional Remedies................................. 23
8.05.C ARBITRATION OF DISPUTES.............................. 23
8.06 Time of Essence............................................. 25
8.07 Attorneys' Fees............................................. 25
8.08 Integration................................................. 26
8.09 Dependency and Survival of Provisions....................... 26
8.10 Risk of Loss; Possession.................................... 26
8.11 Counterparts; Facsimile Signatures.......................... 26
8.12 Force Majeure............................................... 26
8.13 Title Claims................................................ 27
8.14 Assignment.................................................. 27
8.14.A By Buyer............................................. 27
8.14.B By Seller............................................ 27
8.15 Confidentiality............................................. 27
8.16 No Obligations to Third Parties............................. 28
AGREEMENT OF PURCHASE AND SALE
000 XXXXXXXXXX XXX, XXX XXXXXX
THIS AGREEMENT OF PURCHASE AND SALE ("AGREEMENT") is made by and between
COMMUNICATIONS & POWER INDUSTRIES HOLDING CORPORATION, a Delaware corporation
("SELLER"), and PALO ALTO MEDICAL FOUNDATION, a California nonprofit public
benefit corporation ("BUYER"), of which Xxxxxx Health, a California nonprofit
public benefit corporation ("XXXXXX HEALTH"), is the sole member, who agree as
follows:
ARTICLE 1. BACKGROUND AND GENERAL.
1.01 Land. Seller is the owner of that certain real property located
in the City of San Xxxxxx (the "CITY"), County of San Mateo (the "COUNTY"),
State of California (the "STATE"), commonly known as 000 Xxxxxxxxxx Xxx,
designated San Mateo County Assessor's Parcel No. 000-000-000 and 000-000-000
(the "LAND"). The Land contains approximately 18.092 acres of land, zoned for
industrial uses, currently improved with one or more industrial buildings.
1.02 Purchase Property. For purposes of this Agreement, the
"PURCHASE PROPERTY" means the Land and all improvements, if any, thereon,
subject to Seller's obligation to remove certain improvements, and all of
Seller's interest in all easements, rights-of-way, transferable permits,
approvals, privileges and entitlements appurtenant thereto.
1.03 Purpose. The purpose of this Agreement is to set
forth the terms and conditions of the purchase and sale of the Purchase
Property.
1.04 Definitions; Index. Capitalized terms used in this Agreement
shall have the meanings ascribed to them by the section in which such term is
first defined. An index listing the page numbers for such definitions is
attached to this Agreement. This "AGREEMENT" includes all exhibits, schedules
and other attachments hereto.
1.05 Effective Date. The "EFFECTIVE DATE" of this Agreement shall be
the date on which two originals of this Agreement have been fully signed by both
Buyer and Seller and with the liquidated damages provision and arbitration
provision initialled by both Buyer and Seller, has been delivered to First
American Title ("ESCROW HOLDER") at 0000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000,
Attn: Xxxx Xxxxx. Upon such receipt, Escrow Holder shall execute and deliver to
Buyer and Seller the Acceptance by Escrow Holder in the form attached hereto.
1.06 Earlier Agreement. Buyer and Seller have previously entered
into an agreement regarding due diligence matters (the "DUE DILIGENCE
AGREEMENT"). The terms of this Agreement shall supercede and replace the
provisions of the Due Diligence Agreement, except that Buyer and Seller shall
remain liable under the Due Diligence Agreement for all matters arising
thereunder prior to the Effective Date.
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ARTICLE 2. PURCHASE AND SALE.
2.01 Purchase and Sale. Seller shall sell the Purchase Property to
Buyer, and Buyer shall purchase the Purchase Property from Seller on the terms
and conditions specified in this Agreement.
2.02 Purchase Price. The purchase price ("PURCHASE PRICE") for the
Purchase Property shall be $30,000,000.
2.03 Payment. The Purchase Price shall be paid as follows:
2.03.A Deposit. Buyer shall deposit the sums set forth below
during the course of this Agreement. Escrow Holder shall notify both parties in
writing immediately after receipt of any of such sums.
(1) Initial Deposit. Within three business days
following the Effective Date, Buyer shall deposit with Escrow Holder the sum of
$200,000, which Escrow Holder shall deposit into an interest-bearing account
pending Escrow Holder's receipt of the Buyer Approval Notice described below, or
termination of this Agreement. This deposit, and all interest earned thereon, is
hereinafter called the "INITIAL DEPOSIT". If the Initial Deposit is not
deposited with Escrow Holder within such three business days, Seller's
obligations under this Agreement shall terminate.
(2) Additional Deposit. In the event Buyer
elects to proceed with this transaction and sends the "Buyer Approval Notice"
required by Section 4.01.A, prior to the end of the "Feasibility Period" (as
described therein) and Seller has delivered the Seller Approval Notice described
in Section 4.02, Buyer shall deposit sufficient additional funds (the
"ADDITIONAL DEPOSIT") to bring the funds in Escrow to a total of $17,500,000.
(3) Deposit Note and Deed of Trust. Immediately
after Buyer's deposit of the Additional Deposit, Seller shall deliver to Escrow
Holder a promissory note in the form attached as EXHIBIT A (the "DEPOSIT NOTE")
signed by Seller and a deed of trust encumbering the Purchase Property (the
"DEPOSIT DEED OF TRUST") in a form to be agreed to by the parties, in their sole
discretion, during the Feasibility Period and once approved, initialed by the
parties and attached to this Agreement as EXHIBIT D, signed by Seller and
notarized. The Deposit Note shall bear interest at the Deposit Interest Rate as
defined below and shall be payable, if at all, to Buyer within 150 days after
delivery of Buyer's Termination Notice, as defined below. The Deposit Note and
Deposit Deed of Trust are intended to secure Seller's obligation to return the
Full Deposit to Buyer if and when required to do so as set forth in Section
3.03.C.
(4) Satisfaction and Reconveyance. Buyer shall
deposit with Escrow Holder concurrently with the Additional Deposit: (a) a fully
executed and notarized Substitution of Trustee and Full Reconveyance (the "FULL
RECONVEYANCE") with respect to the Deposit Deed of Trust; (b) the fully executed
and notarized Termination of Buyer's Rights described below; and (c)
instructions to Escrow Holder to record the Full Reconveyance and Termination of
Buyer's Rights after Seller's delivery of funds to Escrow Holder with
appropriate instructions to pay Buyer in full under the Deposit Note when
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Escrow Holder is prepared to release such funds to Buyer, and to return the
Deposit Note to Seller marked "Paid in Full".
(5) Disbursement of Full Deposit; Recordation of
Deposit Deed of Trust. Escrow Holder shall immediately: (a) use the Initial
Deposit and the Additional Deposit (collectively, the "FULL Deposit") to fully
satisfy the existing loan secured by a first deed of trust (the "EXISTING FIRST
DEED OF TRUST") on the Purchase Property, (b) retain the Deposit Note and (c)
record the Deposit Deed of Trust. If the Full Deposit is insufficient to satisfy
the Existing First Deed of Trust, Seller shall deposit any required additional
funds to satisfy the Existing First Deed of Trust. If the Full Deposit is more
than is required, then the remainder of the Full Deposit shall be released to
Seller.
(6) Nonrefundable; Applicable. Once deposited
with Escrow Holder, the Full Deposit shall become nonrefundable, except as
otherwise provided in this Agreement. The Full Deposit shall earn interest from
the time the Additional Deposit is deposited with Escrow Holder at a rate equal
to the prime interest rate in effect (as published in the Western Edition of the
Wall Street Journal) at the time the Additional Deposit is deposited into Escrow
(the "DEPOSIT INTEREST Rate"). If the Escrow closes, the Full Deposit and
accrued interest shall be allocated to and applied to the Purchase Price as set
forth below.
2.03.B Balance of Purchase Price. Buyer shall pay the balance
of the Purchase Price in full, by Federal wire transfer, at the Close of
Escrow. Funds must arrive in time to permit recording and delivery of funds to
Seller on the Close of Escrow.
2.04 LIQUIDATED DAMAGES. BY INITIALLING THIS SECTION 2.04 IN THE
SPACE PROVIDED BELOW, BUYER AND SELLER AGREE THAT IF THE CLOSING FAILS TO OCCUR
BY REASON OF THE DEFAULT OF BUYER, THE FULL DEPOSIT, INCLUDING INTEREST THEREON
AT THE RATE SET FORTH IN THE DEPOSIT NOTE, SHALL BE DEEMED LIQUIDATED DAMAGES
FOR BUYER'S NON-PERFORMANCE AS SELLER'S SOLE AND EXCLUSIVE REMEDY AGAINST BUYER
FOR SUCH DEFAULT. ACCORDINGLY, SELLER SHALL HAVE NO FURTHER OBLIGATION UNDER THE
DEPOSIT NOTE (WHICH SHALL BE DEEMED SATISFIED) OR DEPOSIT DEED OF TRUST, WHICH
SHALL BE RECONVEYED. BUYER AND SELLER AGREE THAT IT WOULD BE IMPRACTICAL AND
EXTREMELY DIFFICULT TO FIX ACTUAL DAMAGES RESULTING FROM SUCH DEFAULT, DUE TO
THE NATURE OF THIS TRANSACTION AND THE UNIQUE NATURE OF THE PURCHASE PROPERTY,
AND THAT A REASONABLE ESTIMATE OF SELLER'S DAMAGES IN SUCH EVENT IS THE FULL
DEPOSIT ($17,500,000.00), INCLUDING INTEREST THEREON AT THE RATE SET FORTH IN
THE DEPOSIT NOTE, IN VIEW OF, AMONG OTHER THINGS, THE OBLIGATIONS IMPOSED ON
SELLER UNDER THIS AGREEMENT, THE AMOUNT OF THE DEBT SECURED BY THE PURCHASE
PROPERTY, AND SELLER'S AGREEMENT TO ACCEPT A LIQUIDATED SUM IN LIEU OF ITS
REMEDY OF SPECIFIC PERFORMANCE. BUYER AND SELLER AGREE THAT LIQUIDATED DAMAGES
ARE PARTICULARLY APPROPRIATE FOR THIS TRANSACTION AND AGREE THAT SAID LIQUIDATED
DAMAGES SHALL BE PAID IN THE EVENT OF
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BUYER'S BREACH OF ITS OBLIGATION TO PURCHASE THE PURCHASE PROPERTY,
NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT. THE PAYMENT OF SUCH AMOUNT
AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OF PENALTY WITHIN THE
MEANING OF CALIFORNIA CIVIL CODE SECTION 3275 OR 3369, BUT IS INTENDED TO
CONSTITUTE LIQUIDATED DAMAGES TO SELLER UNDER CALIFORNIA CIVIL CODE SECTIONS
1671, 1676 AND 1677. NOTHING IN THIS PROVISION SHALL, HOWEVER, BE DEEMED TO
LIMIT BUYER'S LIABILITY TO SELLER FOR DAMAGES OR INJUNCTIVE RELIEF FOR BREACH OF
BUYER'S OBLIGATIONS UNDER SECTION 4.01.A (INDEMNITY RE: BUYER'S ACTIVITIES AT
THE PROPERTY), SECTION 8.15 (CONFIDENTIALITY) OR SECTION 8.07 (ATTORNEYS' FEES).
IN THE EVENT ANY PORTION OF THE FULL DEPOSIT REMAINS IN ESCROW AT THE TIME OF
BUYER'S DEFAULT, BUYER AND SELLER HEREBY INSTRUCT AND AUTHORIZE ESCROW HOLDER TO
RELEASE SUCH PORTION TO SELLER. FURTHER, BUYER AND SELLER HEREBY INSTRUCT AND
AUTHORIZE ESCROW HOLDER TO RETURN TO SELLER THE DEPOSIT NOTE MARKED "SATISFIED"
AND RECORD THE FULL RECONVEYANCE AND THE TERMINATION OF BUYER'S RIGHTS, WHICH
ARE BEING HELD BY ESCROW HOLDER.
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BUYER SELLER
2.05 Memorandum of Agreement. If Buyer delivers the Additional
Deposit, prior to the release of the Full Deposit, (i) Buyer and Seller shall
execute a Memorandum of this Agreement which shall be recorded concurrently with
the recordation of the Deposit Deed of Trust, and (ii) Buyer shall execute (in
recordable form) a Termination of Buyer's Rights under this Agreement
("TERMINATION OF BUYER'S RIGHTS") to be held by Escrow Holder and recorded in
the event this Agreement is terminated and the Deposit Note is fully satisfied,
either by repayment or as Seller's liquidated damages as provided in Section
2.04.
2.06 Tax-Deferred Exchange. If either Seller or Buyer wishes to
enter into a tax-deferred exchange for the Purchase Property, then each of the
parties hereto agrees to cooperate reasonably with the other in connection with
such exchange, including, without limitation, the execution of such documents as
may reasonably be necessary to effectuate the same. Such obligations shall,
however, be subject to the following conditions: (a) the party not initiating
the exchange shall not be obligated to delay the Close of Escrow; (b) all
additional costs in connection with the exchange shall be borne by the party
initiating the exchange; (c) the party not initiating the exchange shall not be
obligated to take title to any property in connection with any such exchange
(other than the Purchase Property, as provided for in this Agreement) or to
incur any liability whatsoever in connection therewith by way of note, contract
or otherwise; and (d) the party initiating the exchange shall defend, indemnify
and hold the other party harmless from and against any and all claims, demands,
liabilities, costs, expenses, damages and losses (including, without limitation,
attorneys' fees and costs) which, in any way, arise out of or relate to the
indemnified party's participation in such actual or proposed exchange.
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2.07 Buyer's Remedies. Except as provided in Section 5.05.C, Section
5.05.D, the Deposit Note and the Deposit Deed of Trust, in the event of Seller's
default under this Agreement, Buyer's sole and exclusive remedy shall be to
terminate its obligation to purchase the Purchase Property and, only if provided
for elsewhere in this Agreement, to receive the return of the Full Deposit
within 150 days from notice of Buyer's election to terminate. Nothing herein
shall be deemed to give Buyer a right to terminate this Agreement or to the
return of the Full Deposit, unless such right is expressly set forth elsewhere
in this Agreement.
ARTICLE 3. ESCROW.
3.01 Opening. The purchase and sale of the Purchase Property shall
be consummated through an escrow (the "ESCROW") opened with Escrow Holder by
depositing this Agreement in accordance with Section 1.05.
3.02 Instructions. This Agreement constitutes escrow instructions to
Escrow Holder. Any supplemental escrow instructions given to Escrow Holder shall
be consistent with the terms of this Agreement and shall provide that, as
between the parties, the terms of this Agreement shall prevail if there is any
inconsistency.
3.03 Close of Escrow; Buyer's Termination Notice.
3.03.A Generally. "CLOSING" or the "CLOSE OF ESCROW" shall
mean the date upon which the deed to the Purchase Property is recorded with the
San Mateo County Recorder. Closing shall occur on or before the date 15 days
after the date Seller gives Buyer Notice that Seller has complied with all of
Seller's obligations which are to be complied with prior to the Close of Escrow
under Sections 7.01 and 7.02, but no later than September 30, 2004 (the
"OUTSIDE CLOSING DATE"), as may be extended under this Agreement. Within one
business day after receiving Seller's notice, Buyer shall notify Seller and
Escrow Holder of the actual day for Close of Escrow. Notwithstanding any other
provision of this Agreement, in conjunction with the negotiation of the
Remediation Plan (described in Section 7.01), Buyer and Seller may agree to
extend the Outside Closing Date prior to the end of the Feasibility Period.
3.03.B Seller's Right to Extend. By written notice to Buyer,
Seller may extend the Outside Closing Date by no more than three 90-day periods
(each a "CLOSING EXTENSION PERIOD"). The first two Closing Extension Periods
may be exercised if Seller has been unable to vacate the Purchase Property or
complete Seller's other obligations under this Agreement prior to the Outside
Closing Date, and the third Closing Extension Period may be exercised only if
Seller has been unable to vacate the Purchase Property and complete the
Demolition as described in Section 7.02 prior to the Outside Closing Date, as
previously extended.
3.03.C Seller's Failure to Comply. If, as of the Outside
Closing Date or, if Seller has extended, the end of the relevant Closing
Extension Period, an uncured Repayment Event, as defined below, has occurred,
then provided Buyer is not in material default of this Agreement, Buyer may
notify Seller in writing that Buyer has elected to terminate this Agreement (a
"BUYER'S TERMINATION NOTICE"). Seller shall return
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the Full Deposit to Buyer within 150 days after delivery of Buyer's Termination
Notice, in accordance with the terms of the Deposit Note. A "REPAYMENT EVENT"
shall mean only the following: (i) Seller has failed to complete the
Remediation as required by the Remediation Plan or otherwise comply in all
material respects with the material terms of the Remediation Plan pursuant to
Section 7.01; (ii) Seller's and Buyer's environmental consultants have, or if
they cannot agree, an independent professional environmental consultant
selected by Seller and Buyer, has concluded that Seller will be unable to
complete the Remediation as provided in Section 7.01.C; (iii) Seller has failed
to complete the Demolition as required by the Demolition Plan pursuant to
Section 7.02; or (iv) Seller has failed to vacate the Purchase Property and
deliver the Grant Deed in accordance with this Agreement. Notwithstanding
anything in this Agreement to the contrary, however, Buyer shall not have the
right to terminate this Agreement, or the right to the return of the Full
Deposit in the event that Escrow fails to close as the result of the breach by
Buyer of a material obligation under this Agreement. In the event Buyer's
Termination Notice is given pursuant to this Section 3.03.C, Escrow Holder
shall deliver the Deposit Note to Buyer.
3.03.D Buyer's Obligations on Full Satisfaction of Note. If
the Deposit Note is repaid by Seller or otherwise satisfied pursuant to Section
2.04 whereby Seller retains the Full Deposit as liquidated damages for Buyer's
non-performance, Buyer shall, or cause Escrow Holder to, deliver the original
Deposit Note to Seller, and record the Full Reconveyance and the Termination of
Buyer's Rights.
3.04 Costs. Charges and expenses incurred in the Escrow are
to be borne by the parties as follows:
3.04.A Seller's Costs. Seller shall bear the following costs:
the CLTA portion of the title insurance premium attributable to the title
policy issued at the Close of Escrow; the cost of any title endorsements, if
any, agreed to by Seller in response to objections to title made by Buyer; all
County documentary transfer taxes; and one-half of the Escrow fees and other
related closing costs. If the City should adopt a documentary transfer tax,
Buyer and Seller will bear the cost of such tax equally.
3.04.B Buyer's Costs. Buyer shall bear the following costs:
the incremental title insurance premium for any ALTA Owner's Extended Coverage
desired by Buyer; the cost of all title policy endorsements other than those,
if any, agreed to by Seller under Section 3.04.A; the cost of all lender's
title insurance coverage; and, the remaining one-half of the Escrow fees,
recording fees and other related closing costs.
3.04.C Miscellaneous Costs. All other fees and miscellaneous
costs not specifically allocated above, other than fees and costs related to a
tax-deferred exchange which shall be allocated in accordance with Section 2.06,
shall be borne in accordance with the custom in the County, as determined by
Escrow Holder.
3.05 Prorations and Adjustments. Real property taxes shall be
prorated as of the Close of Escrow, based upon the latest available tax bills.
With respect to any prorations based on estimates rather than bills for the
period covered by the proration, if and when the actual xxxx for the tax,
assessment or other charge related thereto is finally issued by the appropriate
agency, the parties shall adjust said proration, as necessary, within 30
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days of such xxxx becoming available, based on such final billing. The party
owing reimbursement following any such adjustment shall make full payment within
30 days following the date written notice containing the basis for the
adjustment and the amount due is sent by the other party. If the party owing
reimbursement fails to make such payment within such period, the amount unpaid
shall bear interest at 10% per annum from the date of such written notice.
Notwithstanding the foregoing, Seller shall retain the right to pursue a
property tax refund and/or reassessment for any period prior to the Close of
Escrow and Buyer agrees to cooperate with Seller in its pursuit of any such
refund and/or reassessment. Any refund relating to the period prior to Close of
Escrow shall belong exclusively to Seller.
3.06 Deliveries to Escrow by Seller. Prior to Closing, Seller shall
deliver into Escrow the following items to be delivered and/or recorded at
Closing:
3.06.A Grant Deed. A duly executed and acknowledged grant deed
for the Purchase Property. The grant deed shall not show the amount of transfer
tax paid or any other indication of the Purchase Price. The amount of transfer
tax paid shall instead be shown by off-record affidavit.
3.06.B Nonforeign Certification. A sworn Affidavit stating
under penalty of perjury that Seller is not a "foreign person" as such term is
defined in Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended
(the "CODE"), or such other evidence as Buyer and Escrow Holder may require
showing that Buyer is not required to withhold taxes from the Purchase Price
under Section 1445(a) of the Code.
3.06.C California Franchise Tax Withholding. Evidence
reasonably satisfactory to Buyer and Escrow Holder that Seller is exempt from
the provisions of Section 18662 of the California Revenue and Taxation Code and
that neither Buyer nor Escrow Holder is required to withhold any amounts from
the Purchase Price pursuant thereto.
3.06.D Miscellaneous. Such other documents and instructions as
may be reasonably required by the Escrow Holder in order to close Escrow in
accordance with the terms of this Agreement.
3.07 Deliveries to Escrow by Buyer. Prior to Closing, Buyer shall
deliver into Escrow the following items to be delivered and/or recorded at
Closing:
3.07.A Closing Payments. The balance of the Purchase Price,
and Buyer's share, if any, of any then-known prorations, fees and costs, in
immediately available funds.
3.07.B Miscellaneous. Such other documents and instructions as
may be reasonably required by the Escrow Holder in order to close Escrow in
accordance with the terms of this Agreement.
ARTICLE 4. CONDITIONS TO CLOSE OF ESCROW.
4.01 Buyer's Conditions to Close of Escrow. Buyer's obligation to
purchase the Purchase Property and close Escrow is subject to the fulfillment of
each and
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every one of the conditions in this Section 4.01. Except where a different time
period is specifically set forth, satisfaction of each condition shall occur no
later than the Close of Escrow. If any of the conditions to be satisfied prior
to the end of the Feasibility Period are not satisfied or waived by Buyer by the
date for satisfaction, then Buyer shall have the right to terminate this
Agreement and receive back the Initial Deposit in accordance with the terms of
this Agreement, by giving timely written notice to Seller and Escrow Holder, in
which case the parties shall have no further obligation hereunder to each other
except for Buyer's obligations under Sections 4.01.A and 8.15.
4.01.A Feasibility. During the Feasibility Period, as defined
below, Buyer shall have the right to conduct such investigations, studies and
examinations with respect to the Purchase Property and such other matters
related to the Purchase Property as Buyer, in its sole and absolute discretion,
deems appropriate. Feasibility issues shall include all issues which Buyer, in
its sole and absolute discretion, determines to be relevant and material to its
determination to purchase the Purchase Property, including, without limitation,
political, planning, zoning and entitlement matters, geology, environmental,
economic and marketing issues, wetlands and protected species matters, and
eventual utility access.
(1) Feasibility Period. Buyer shall have until
5:00 p.m. Pacific Time on the date 120 days after the Effective Date (the
"FEASIBILITY PERIOD" or "END OF FEASIBILITY"), to give written notice ("BUYER
APPROVAL NOTICE") that Buyer has approved its feasibility review and elected to
proceed with this transaction. Should Buyer fail to deliver the Buyer Approval
Notice to Escrow Holder and Seller prior to the End of Feasibility in accordance
with Section 8.02, this Agreement shall automatically terminate, the Initial
Deposit shall be returned to Buyer, and the parties shall have no further
obligation to each other hereunder except for Buyer's obligations under Sections
4.01.A and 8.15. The parties may, in their discretion, agree to extend the
Feasibility Period by providing a written notice of the extended expiration date
of the Feasibility Period executed by Seller and Buyer to Escrow Holder prior to
the end of the Feasibility Period. In the event of an extension of the
Feasibility Period, the Outside Closing Date specified in Section 3.03.A shall
be extended by a corresponding period of time.
(2) Documents and Materials. Within 5 business
days following the Effective Date, Seller shall furnish Buyer with copies of all
reports listed on EXHIBIT B and Buyer may, upon 5 business days' prior notice,
inspect Seller's files described on Exhibit B. The reports and other materials
described on Exhibit B are collectively referred to as the "DOCUMENTS AND
MATERIALS". In addition, within 5 business days of a reasonable specific request
from Buyer, Seller shall make available to Buyer at the Purchase Property
address all other documents and materials (other than (i) attorney-client
privileged information and (ii) information which Seller is required by a third
party to maintain as confidential) which are within Seller's possession or
control relating to the Purchase Property. The Documents and Materials consist
of: (a) copies of any approvals, entitlements, permits or applications relating
to the future development of the Land; (b) copies of soils, environmental/toxic,
geological, and engineering studies and reports relating to the Purchase
Property; and (c) copies of surveys, maps and plans of the Purchase Property in
Seller's possession. Buyer and Seller agree that by Seller providing the
foregoing information, Seller does not intend and shall not be deemed to waive
its attorney-client
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privilege or any attorney work product privilege, other than with respect to
Buyer and the actual document provided.
(3) Right of Entry. Seller hereby grants to
Buyer a license to enter upon the Purchase Property from the Effective Date
through the Close of Escrow or sooner termination of this Agreement for the
purpose of conducting engineering surveys, investigations, soil tests and other
studies, provided that Buyer provides two (or in the case of proposed intrusive
testing, seven) business day's prior notice to Seller of its entry upon the
Purchase Property. Such entry shall be subject to the following covenants of
Buyer.
(a) Buyer shall bear the entire cost of all tests,
investigations, surveys and studies performed by Buyer or at Buyer's direction.
(b) Buyer shall use (and cause its contractors to
use) all due care and consideration, including, without limitation, attention
to safety of persons and property, in connection with all of its inspections or
tests and those on its behalf and shall in all instances comply and cause
others to comply with all applicable laws and rights of and obligations owed to
third parties and shall not interfere with Seller's or any tenant's use and
occupancy of the Purchase Property. Any intrusive or invasive testing by Buyer
shall be subject to Seller's prior written approval, which approval, among
other things, shall be subject to Seller satisfying its obligations to obtain
prior approval of Varian Associates, Inc. ("VARIAN") pursuant to that certain
Stock Sale Agreement, as amended ("VARIAN STOCK SALE AGREEMENT"), and the Site
Access Agreement, as amended (if amended) ("VARIAN SITE ACCESS AGREEMENT"),
each between Varian and Communications & Power Holding Corporation and/or its
affiliate. Prior to conducting any intrusive or invasive testing or
inspections, Buyer shall obtain any and all permits and approvals required for
such testing and inspections, and shall notify all required agencies,
utilities, service providers and holders of easements, leases and licenses
affecting the Purchase Property which may be impacted as a result of such tests
or inspections. Buyer shall promptly restore the Purchase Property to its
condition prior to any intrusive or invasive tests and/or inspections.
(c) Buyer shall not enter the Purchase Property
nor permit any contractor to enter the Purchase Property until it (and such
contractor) has obtained a liability insurance policy covering liability to
persons or property for the activities contemplated hereunder in an amount of
not less than $1,000,000.00 per injury or occurrence and worker's compensation
and employer's liability insurance in accordance with California law. Any
contractor performing any intrusive testing shall maintain pollution liability
insurance in an amount of not less than $3,000,000.00 per injury or occurrence.
Prior to entering the Purchase Property, Buyer shall provide Seller with a
current certificate of such insurance, and in the case of a contractor's
insurance, the certificate shall name Seller and Varian Medical Systems, an
affiliate of Varian, as additional insureds on the liability coverage.
(d) Buyer agrees to indemnify, defend (with
counsel selected by Buyer and reasonably acceptable to Seller) and hold Seller
and its affiliated entities, and all of Seller's and such affiliated entities'
respective shareholders, members, managers, officers, directors, employees and
agents and the Purchase Property
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harmless from any and all liability, claims, damage and expense (including but
not limited to attorney's fees) caused by or resulting from Buyer's and its
consultants' activities on or in connection with the Purchase Property.
Notwithstanding the foregoing, however, Buyer shall not be obligated to defend
or indemnify Seller, nor to repair any damage resulting from any one or more of
the following: (1) the discovery of Hazardous Materials (as defined in Section
5.03.D) on the Purchase Property; (2) the discovery of a pre-existing latent
defect in the Purchase Property; (3) the spread of Hazardous Materials already
present on the Purchase Property despite the use of reasonable care consistent
with the standard of care used by competent environmental professionals; or (4)
the act or omission of Seller or its agents.
(e) Buyer shall promptly pay and discharge
all demands for payment relating to work performed on the Purchase Property by
Buyer or at Buyer's direction, including without limitation, work relating to
Buyer's investigation of the Purchase Property and take all other steps to
avoid the assertion of claims or liens against the Purchase Property. In the
event a claim or lien is recorded with respect to any such work on the Purchase
Property, Buyer, within two days of Buyer's receipt of notice of such
recordation shall either: (a) pay such claim or lien in full or (b) record or
deliver a surety bond sufficient to release such claim or lien in accordance
with applicable law.
(4) Governmental Inquiries. Buyer shall not
begin any zoning or other approval process without Seller's prior written
approval. Buyer shall advise Seller in advance of any proposed formal meeting
with the City of San Xxxxxx or any other local governmental or
quasi-governmental agency regarding the change of use or redevelopment of the
Purchase Property. Seller may, at its option, be present at any such meeting
through its designated representative.
(5) Reports. Prior to Close of Escrow, Buyer
agrees to provide Seller (within two business days of Buyer's receipt or
generation of such information or the occurrence of the subject meeting, as the
case may be) with copies of all applications, permits, environmental surveys,
surveys, soil tests, engineering reports, resolutions and similar third party
documents prepared, obtained, or developed in connection with the Purchase
Property, including summaries of meetings with the City of San Xxxxxx and local
governmental and quasi-governmental agencies, without cost or expense to Seller.
Buyer acknowledges that Seller may disclose such information to Varian.
(6) Status Reports to Seller. Every two weeks
during the Feasibility Period and monthly thereafter until Close of Escrow,
Buyer shall submit to Seller a written status report regarding Buyer's due
diligence investigation and pursuit of entitlements, including without
limitation its inquiries with local governmental and quasi-governmental
agencies, together with a list of Buyer's consultants. Buyer and Seller agree to
meet at least every two weeks or more often as necessary to discuss the status
of Buyer's investigation and progress with respect to the City of San Xxxxxx. On
May 1, 2003, Buyer shall provide Seller with a written notice ("FEASIBILITY
STATUS NOTICE") (i) identifying any matters which remain to be resolved to
Buyer's satisfaction prior to Buyer giving the Buyer Approval Notice, and (ii)
indicating whether Buyer desires an extension of the Feasibility Period. The
Feasibility Status Notice shall be for the purpose of informing Seller of the
status of Buyer's investigations and shall not bind Buyer. If Buyer requests an
extension of
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the Feasibility Period to complete its investigations (it being acknowledged
that Seller is not obligated to agree to such an extension), Buyer shall
increase the Initial Deposit to $500,000 and authorize Escrow Holder to release
up to all of the Initial Deposit for Seller's benefit to the holder of the
Existing First Deed of Trust in the amount of the consideration required for an
extension of the due date (currently on or about June 1, 2003) of the note
secured by the Existing First Deed of Trust, upon receipt by Escrow Holder of a
promissory note from Seller to Buyer in such amount.
Buyer's liability under this Section 4.01.A shall survive the termination
of this Agreement.
4.01.B Title; Title Policy. At Close of Escrow, Seller shall
convey the Purchase Property to Buyer by grant deed, subject only to the
"PERMITTED EXCEPTIONS" defined below, and, at the Close of Escrow, shall cause
the Escrow Holder's underwriter to issue the "Buyer's Title Policy" described
below.
(1) Preliminary Report; Buyer's Title Notice. Seller has
provided Buyer an amended preliminary title report covering the Purchase
Property, and legible copies of all documents referred to therein (collectively,
the "PRELIMINARY REPORT"). Buyer shall have until the 30th day following the
Effective Date (the "INITIAL TITLE REVIEW DATE"), to give Seller written notice
("BUYER'S TITLE NOTICE") of Buyer's approval or disapproval of each and every
item or exception set forth in the Preliminary Report. Buyer's failure to give
the Buyer's Title Notice by the Initial Title Review Date shall be deemed to be
Buyer's disapproval of title to the Purchase Property and this Agreement shall
terminate, Buyer shall receive back the Initial Deposit and the parties shall
have no further obligation hereunder to each other except for Buyer's
obligations under Sections 4.01.A and 8.15.
(2) Seller's Title Notice. In the event that the Buyer's
Title Notice disapproves any exception, Seller shall have until 5:00 p.m. on the
10th day following the Initial Title Review Date (the ("SELLER'S TITLE RESPONSE
DATE") to give Buyer written notice ("SELLER'S TITLE NOTICE") of those
disapproved title matters, if any, which Seller is willing to remove or cause to
be insured over. If Seller fails to deliver Seller's Title Notice, Seller shall
be deemed to have refused to remove all disapproved title matters. If Seller's
Title Notice refuses to remove any items disapproved by Buyer, Buyer shall have
until 5:00 p.m. on the 10th day following Seller's Title Response Date to give
Seller written notice ("BUYER'S TITLE WAIVER NOTICE") that Buyer waives its
prior disapproval with respect to all items which Seller has refused (or is
deemed to have refused) to remove. If Seller has not received Buyer's Title
Waiver Notice by 5:00 p.m. on the last date for Buyer to give Buyer's Title
Waiver Notice under this subsection 4.01.B(2), this Agreement shall terminate,
Buyer shall receive back the Initial Deposit, and the parties shall have no
further obligations hereunder to each other except for Buyer's obligations under
Sections 4.01.A and 8.15. Seller shall have until the end of the Feasibility
Period to remove those exceptions which Seller agrees to remove.
(3) Permitted Exceptions. (i) a lien to secure payment
of taxes, not delinquent, (ii) the Title Company's standard and customary
exceptions set forth in Buyer's Title Policy, (iii) matters affecting the
condition of title created by or with the consent of Buyer or as a result of
Buyer's (or any party on behalf of Buyer) acts or omissions, (iv) matters
identified on the Preliminary Report and approved or deemed
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approved by Buyer hereunder, (v) matters which would be reflected on a current
ALTA survey, (vi) matters which would be disclosed by physical inspection of the
Property, (vii) planning, zoning, land use and subdivision laws, ordinances,
regulations and requirements, (viii) the Deposit Deed of Trust, and (ix)
Varian's access rights pursuant to the Varian Stock Sale Agreement and Varian
Site Access Agreement (all of the foregoing in clauses (i) through (ix) herein
referred to as the "PERMITTED EXCEPTIONS").
(4) Buyer's Title Policy. The title insurance policy
issued at Close of Escrow (the "BUYER'S TITLE POLICY") shall be a CLTA Owner's
policy of title insurance, with liability in the amount of the Purchase Price
insuring title in Buyer to the Purchase Property, subject only to: (a) the
Permitted Exceptions; (b) the printed exceptions and exclusions common to CLTA
policies; and (c) the other matters affecting title provided for elsewhere in
this Agreement. Additionally, Buyer, at Buyer's cost, may obtain an ALTA
Lender's policy of title insurance, with liability in the amount of the Deposit
Note, insuring the priority of the Deposit Deed of Trust, subject only to the
same matters.
(5) ALTA Policy. Notwithstanding the foregoing, at
Buyer's election to be made as part of Buyer's Title Notice, the Buyer's Title
Policy shall be an ALTA Extended Coverage Owner's policy, so long as Buyer
furnishes any ALTA Survey required by Escrow Holder as set forth below (or, at
Buyer's election, agrees to accept the survey exception required by the title
insurer), and so long as the issuance of such coverage does not delay Buyer's
Title Notice or the Close of Escrow. If Buyer does elect to obtain an ALTA
Extended Coverage Owner's title policy, the printed exceptions and exclusions to
the Buyer's Title Policy would be those common to ALTA Extended Coverage
policies.
4.01.C Additional Agreements. Prior to the end of the
Feasibility Period, Buyer and Seller, in their discretion, shall have agreed on
the form of the Remediation Plan in accordance with Section 7.01 and the
Demolition Plan in accordance with Section 7.02.
4.01.D Varian. Prior to the end of the Feasibility Period, and
thereafter, as applicable, Varian, to Seller's reasonable satisfaction, shall
have approved all testing and remediation activities to be undertaken pursuant
to Section 7.01 and all demolition activities to be undertaken pursuant to
Section 7.02. Prior to Close of Escrow, Varian shall have released, to Seller's
reasonable satisfaction, Seller, its successors and the Purchase Property from
all development, use, remediation, access, testing and other obligations and
restrictions set forth in the Varian Stock Sale Agreement and Varian Site
Access Agreement, and from any claims for a breach of such agreements or
otherwise arising under applicable law related to Hazardous Materials.
4.01.E Altair Technologies Lease. Prior to the end of the
Feasibility Period, Seller shall have entered into an amendment to the lease
with Altair Technologies described on EXHIBIT C to provide for a right of the
lessor to terminate such lease on or before the Close of Escrow.
4.01.F Consents/Compliance. Seller shall have received any
consents and/or opinions required by, and otherwise have complied with, on
terms acceptable to Seller in its discretion, all loan agreements, indentures
and certificate of
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incorporation provisions regarding preferred stock of Seller or its affiliates,
as they may relate to the transactions which are the subject of this Agreement,
including without limitation the Deposit Note and Deposit Deed of Trust, the
sale of the Purchase Property and the termination of the master lease with
Seller's affiliate described on Exhibit C.
4.01.G Xxxxxx Health Approval. Prior to the end of the
Feasibility Period, Buyer shall have obtained the approval of the boards of
directors of Buyer and Xxxxxx Health regarding all feasibility issues.
4.01.H Seller's Performance. A Repayment Event which
remains uncured shall not exist as of the Close of Escrow.
4.01.I Representations and Warranties True. Each and every one
of Seller's representations and warranties contained in Section 5.03 shall be
true and correct in every material respect, subject to the provisions of
Section 5.05.
4.02 Seller's Conditions to Close of Escrow. Seller's obligation to
sell the Purchase Property and to close Escrow is subject to the fulfillment of
each and every one of the conditions in this Section 4.02. Buyer and Seller each
covenants to use good faith efforts to cause the conditions in this Section 4.02
to be satisfied. Except where a different time period is specifically set forth,
satisfaction of each condition shall occur no later than the Close of Escrow. If
any of such conditions are not satisfied or waived by Seller by the date for
satisfaction, then Seller shall have the right to terminate this Agreement, by
giving written notice to Buyer, whereupon the parties shall have no further
obligation to each other except for Buyer's obligations under Sections 4.01.A
and 8.15. If Seller terminates this Agreement at a time when Buyer is not in
default under this Agreement, Buyer shall be entitled to the return of the Full
Deposit. Seller shall not have the right to terminate this Agreement, however,
where the failure of a condition resulted from the breach by Seller of an
obligation under this Agreement. Provided that the conditions in favor of Seller
that are to be satisfied prior to the end of the Feasibility Period have been
satisfied or waived by Seller, Seller shall deliver to Buyer and Escrow Holder a
notice that such Seller's conditions have been satisfied or waived ("SELLER'S
APPROVAL NOTICE"). If Seller fails to deliver Seller's Approval Notice on the
later of the end of the Feasibility Period or within five days after a request
from Buyer, this Agreement shall terminate, the Initial Deposit shall be
returned to Buyer and the parties shall have no further obligation hereunder to
each other except Buyer's obligations under Sections 4.01.A and 8.15.
4.02.A Buyer's Performance. Buyer shall have timely performed
all of its material obligations under this Agreement.
4.02.B Additional Agreements. Prior to the end of the
Feasibility Period, Buyer and Seller, in their discretion, shall have agreed on
the form of the Remediation Plan in accordance with Section 7.01 and the
Demolition Plan in accordance with Section 7.02.
4.02.C Varian. Prior to the end of the Feasibility Period, and
thereafter, as applicable, Varian, to Seller's reasonable satisfaction, shall
have approved all testing and remediation activities to be undertaken pursuant
to Section 7.01 and all
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demolition activities to be undertaken pursuant to Section 7.01. Prior to Close
of Escrow, Varian shall have released, to Seller's reasonable satisfaction,
Seller, its successors and the Purchase Property from all development, use,
remediation, access testing and other obligations and restrictions set forth in
the Varian Stock Sale Agreement and Varian Site Access Agreement, and from any
claims for a breach of such agreements or otherwise arising under applicable
law related to Hazardous Materials.
4.02.D Altair Technologies Lease. Prior to the end of the
Feasibility Period, Seller shall have entered into an amendment to the lease
with Altair Technologies described on Exhibit C to provide for a right of the
lessor to terminate such lease on or before the Close of Escrow.
4.02.E Consents/Compliance. Seller shall have received any
consents and/or opinions required by, and otherwise have complied with, on
terms acceptable to Seller in its discretion, all loan agreements, indentures
and certificate of incorporation provisions regarding preferred stock of Seller
or its affiliates, as they may relate to the transactions which are the subject
of this Agreement, including without limitation the Deposit Note and Deposit
Deed of Trust, the sale of the Purchase Property and the termination of the
master lease with Seller's affiliate described on Exhibit C.
4.02.F Representations and Warranties True. Each and every one
of Buyer's representations and warranties contained in this Agreement shall be
true and correct in every material respect.
ARTICLE 5. DISCLOSURES, DISCLAIMERS, REPRESENTATIONS AND WARRANTIES.
5.01 Natural Hazard Report. Seller shall cause Escrow Holder
to deliver to Buyer a Natural Hazard Report within 15 days after the
Effective Date.
5.02 Representations and Warranties in General.
5.02.A Knowledge Representations. Whenever the words "BEST OF
SELLER'S KNOWLEDGE", "SELLER'S KNOWLEDGE," "SELLER'S BEST KNOWLEDGE" or words
of similar import are used in this Agreement, they shall mean the knowledge of
Xxxx Xxxxx (Eimac Division President), Xxxx Xxxxxxxxx (Facilities Manager), Xxx
Xxxxxxxxxx (Chief Executive Officer) and Xxxx Xxxxxxx (Chief Financial Officer)
who are the employees, officers and agents of Seller who have participated in
the management or operation of the Purchase Property after inquiry of each of
them which was undertaken for the purpose of confirming the accuracy of the
representations and warranties of Seller contained in this Agreement.
5.02.B Restatement. Except as otherwise provided in Sections
5.03 and 5.05, the representations made by Seller in Section 5.03 shall be
deemed to be restated by Seller immediately prior to Close of Escrow. The
representations made by Buyer in Section 5.04 shall likewise be deemed to be
restated by Buyer immediately prior to Close of Escrow.
5.03 Representations and Warranties by Seller. Seller acknowledges
that the execution of this Agreement by Buyer is made in material reliance by
Buyer on each and
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every one of the representations and warranties made by Seller in this Section
5.03. Except as set forth on Exhibit C, Seller hereby represents and warrants to
Buyer that:
5.03.A Organization. Seller has been duly organized and is
validly existing as a Delaware corporation, in good standing and fully
qualified to do business in the State of California.
5.03.B Owner/Authority. Seller is the owner of the Purchase
Property. Seller has the right, power and authority to enter into this
Agreement and to perform its obligations subject to the terms and conditions
hereunder, and the person(s) executing this Agreement on behalf of Seller have
the right, power and authority to do so. This Agreement constitutes the legal,
valid and binding obligation of Seller enforceable against Seller in accordance
with its terms. As of the end of the Feasibility Period, this Agreement will
not violate any provision of any other agreement or document which affects the
Purchase Property to which Seller is a party or to which Seller is bound.
5.03.C Parties in Possession. To the best of Seller's
knowledge, as of the Effective Date, no party has any interest in the Purchase
Property or any portion thereof, except as disclosed by the Preliminary Report
and on Exhibit C.
5.03.D Hazardous Materials. Seller has delivered or will
deliver to Buyer within five business days after the Effective Date final Phase
I and Phase II environmental assessment reports respecting Hazardous Materials,
as defined below, concerning the Purchase Property in Seller's possession. To
the best of Seller's knowledge, other than as set forth in the Reports
identified on Exhibit B or in any other writing delivered to Buyer, Seller has
no knowledge respecting the general nature of Hazardous Materials located on,
in or adjacent to the Purchase Property, it being understood that the
individuals identified in Section 5.02.A are not environmental professionals
familiar with all Hazardous Materials present at the Purchase Property or their
distribution in soil or ground water. For purposes of this Agreement,
"HAZARDOUS MATERIALS" means any flammable materials, explosive, hazardous or
toxic substances, or related materials defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as now or
hereafter amended (42 U.S.C. Sections 9601, et seq.), the Hazardous Materials
Transportation Act, as now or hereafter amended (49 U.S.C. Sections 1801, et
seq.), the Resource Conservation and Recovery Act, as now or hereafter amended
(42 U.S.C. Sections 9601, et seq.), and in the regulations promulgated pursuant
thereto, or any other federal, state or local governmental law, ordinance, rule
or regulation, petroleum and petroleum products (collectively, "ENVIRONMENTAL
LAWS"), and such other substances, chemicals and materials which are or may be
deleterious to human health or the environment.
5.03.E No Default. Except as disclosed on Exhibit B or Exhibit
C, Seller has received no written notice of a default under any contract,
agreement, covenant, restriction, easement or encumbrance pertaining to the
Purchase Property, which default would adversely affect Buyer's use of the
Purchase Property, and which is not cured prior to or as of the Closing.
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5.03.F No Condemnation. To the best knowledge of Seller, there
are no pending condemnation proceedings against the Purchase Property and
Seller has received no notice of any such proceedings.
5.04 Buyer's Representations and Warranties. Buyer acknowledges that
the execution of this Agreement by Seller is made in material reliance by Seller
on each and every one of the representations and warranties made by Buyer in
this Section 5.04. Buyer hereby represents and warrants to Seller that:
5.04.A Organization. Buyer has been duly organized and is
validly existing as a California nonprofit public benefit corporation, in good
standing and fully qualified to do business in the State of California.
5.04.B Authority. Buyer has the right, power and authority to
enter into this Agreement and to perform its obligations hereunder, and the
person(s) executing this Agreement on behalf of Buyer have the right, power and
authority to do so. This Agreement constitutes the legal, valid and binding
obligation of Buyer enforceable against Buyer in accordance with its terms.
This Agreement does not violate any provision of any other agreement or
document to which Buyer is a party or to which Buyer is bound.
5.04.C Financing. Buyer has the funds necessary to consummate
this transaction and financing is not a condition to Buyer's obligation to
deliver the Additional Deposit or consummate the purchase of the Purchase
Property.
5.04.D As-Is. As a material inducement to the execution and
delivery of this Agreement by Seller and the performance by Seller of its
duties and obligations hereunder, Buyer does hereby acknowledge, represent,
warrant and agree, to and with Seller, that, except as otherwise expressly
provided for in Sections 5.03, 7.01, 7.02 and 7.03, (i) Seller makes no
representation or warranty of any kind whatsoever, express or implied, with
respect to the Purchase Property or this transaction and, in furtherance of
(and not in limitation of) the foregoing, it is expressly acknowledged and
agreed that Seller makes no representation or warranty respecting the quality,
quantity, value, condition, habitability or suitability of the Purchase
Property for any intended use; marketability of the Purchase Property or any
governmental requirements or restrictions with respect to the use, improvement
or sale of the Purchase Property; the size, dimensions or physical condition of
the Purchase Property; the land, topography, climate, air, water, water rights,
utilities, air rights, present or future planning or zoning restriction or
requirements, soils, sub-soil, drainage, compaction, subsidence, access to
public roads, proposed routes of roads or extensions thereof, concerning the
Purchase Property; parking ordinances, regulations and requirements; the
condition of title to the Purchase Property; the presence of any endangered or
protected plant, animal, insect or organism or habitat for such endangered or
protected plant, animal, insect or organism; the presence of any item or matter
of archeological significance; or the historical significance of the Purchase
Property; the availability of utilities (water, sewer, gas, electricity,
telecommunication, cable, etc.) to the Purchase Property or the cost thereof;
(ii) except as set forth in Sections 5.03.D, 7.01, and 7.03, Seller makes no
representation or warranty regarding, and hereby expressly disclaims any
responsibility for any loss, claim, cost or liability with respect to the
presence, release, handling, use, generation, processing, production,
packaging, treatment, storage, emission,
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discharge, investigation, removal or remediation of any Hazardous Materials in,
on or in the vicinity of the Purchase Property; (iii) Buyer has fully
investigated the Purchase Property, its applicable zoning and its prospects;
(iv) Buyer is purchasing the Purchase Property in an "AS IS, WHERE IS and WITH
ALL FAULTS" condition as of the date of the Close of Escrow with respect to any
facts, circumstances, conditions and defects, including, without limitation,
any matters disclosed by Seller to Buyer herein; (v) Seller has no obligation
to repair or correct any such facts, circumstances, conditions or defects or
compensate Buyer for same; (vi) Seller has no liability for any information
made available to Buyer by Varian Associates, Inc. or any of its successors or
affiliates; (vii) in acquiring the Purchase Property, Buyer will be relying
strictly and solely upon its own investigations, inspections and examinations
as to all matters relating in any manner to the Purchase Property or any
interest therein, including, without limitation, the items listed above and the
advice and counsel of its own agents (but not Seller's agents or any other
person or party affiliated with Seller) and Buyer is and will be fully
satisfied that the Purchase Price is fair and adequate consideration for the
Purchase Property; and (viii) by reason of all of the foregoing, Buyer hereby
assumes the full risk of and does hereby fully release Seller and its
affiliated entities and Seller's and such affiliated entities' shareholders,
officers, members, managers, employees, directors, attorneys and agents from
and against any loss, damage, claims, liabilities, costs, expenses or judgments
of any kind, whether known or unknown, suspected or unsuspected, occasioned by
any fact, circumstance, matter, condition or defect (patent or latent)
pertaining to the Purchase Property (and including without limitation, matters
relating to Hazardous Materials in, on or in the vicinity of the Purchase
Property) but excluding any claims based upon a breach by Seller of a
representation, warranty or indemnity expressly set forth in this Agreement.
All materials, including but not limited to the Documents and Materials
prepared by third parties and delivered or made available to Buyer by Seller or
any other person acting for or on behalf of Seller, whether in the form of
maps, surveys, reports, plans, studies or otherwise, have been furnished by
Seller to Buyer solely as a courtesy, without warranty or representation, and
neither Seller nor its agents has verified the accuracy of such information or
the qualifications of the persons preparing such information.
Buyer hereby acknowledges that it has read and is familiar with the provisions
of California Civil Code Section 1542 ("SECTION 1542"), which is set forth
below.
"A general release does not extend to claims which the creditor does not
know or expect 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 hereby WAIVES the benefit of the provisions of Section 1542, and of any
statute, principle of common law or case law which would limit the scope of the
foregoing waiver and release, in connection with matters which are the subject
of the foregoing waiver and release.
The provisions of this Section 5.04 shall survive the Close of Escrow and any
termination of this Agreement.
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5.05 Discovery of Inaccuracy.
5.05.A Notice. If, after the date of this Agreement and prior
to Closing, either party discovers any inaccuracy in any representation or
warranty of Seller under Section 5.03, the discovering party shall promptly
notify the other party in a written notice setting forth the particular
representation or warranty which is inaccurate, and the nature of the
inaccuracy discovered. Buyer's sole remedies for such inaccuracy are set forth
in Sections 5.05.B and 5.05.C below.
5.05.B Right to Terminate. If (i) the inaccuracy was unknown
to Buyer prior to the delivery of the Additional Deposit, (ii) Seller does not
agree to cure or correct any material adverse affect on the Purchase Property
arising from such inaccuracy prior to or as of Close of Escrow, and (iii) the
inaccuracy materially adversely affects the value of the Purchase Property
(collectively, a "MATERIAL Inaccuracy"), then Buyer, provided Buyer is not in
material default of this Agreement, shall have the right to terminate this
Agreement, within 10 calendar days of learning of such inaccuracy by giving
Buyer's Termination Notice. Failure of Buyer to terminate this Agreement within
such 10-day period shall be deemed a waiver of the right to terminate and a
waiver of and release of Seller for any claim arising out of the inaccuracy. If
Seller had no knowledge of the inaccuracy on the date of Seller's execution of
this Agreement, then Buyer's sole remedy shall be to terminate this Agreement
as aforesaid, and if Buyer does terminate this Agreement, the Full Deposit
shall be returned to Buyer within 150 days after delivery of Buyer's
Termination Notice in accordance with the terms of the Deposit Note, and the
parties shall have no further obligation hereunder to each other except for
Buyer's obligations under Section 4.01.A and 8.15.
5.05.C Other Rights. If the inaccuracy is a Material
Inaccuracy and Seller did have knowledge of the inaccuracy on the date of
Seller's execution of this Agreement, then Buyer shall also have all other
rights and remedies afforded by law and equity.
5.05.D After Closing. If the inaccuracy is discovered after
Closing and is not a Material Inaccuracy, Buyer shall have no right or remedy
against Seller for such inaccuracy. If the inaccuracy is discovered by Buyer
within six months after Closing and is a Material Inaccuracy, Buyer shall have
all of its rights and remedies against Seller as provided in and subject to the
terms and conditions of this Agreement, other than a right of rescission.
ARTICLE 6. COOPERATION; CASUALTY/CONDEMNATION.
6.01 Seller's Cooperation. If requested to do so, prior to the Close
of Escrow, Seller shall reasonably cooperate with Buyer (but at no cost, expense
or liability to Seller or the Land and improvements thereon) in connection with
Buyer's inquiries of local governmental or quasi-governmental agencies with
respect to the Land and the Purchase Property, and with respect to Buyer's
efforts to obtain further entitlements for the Purchase Property.
Notwithstanding the foregoing, prior to the deposit of the Additional Deposit,
Seller shall have the right, in its discretion, to approve any proposed
application, permit, condition, dedication or exaction. Following the deposit of
the Additional Deposit, Seller
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agrees not to unreasonably withhold its approval of any application or any
proposed permit, condition, dedication or exaction, provided that no condition,
dedication, covenant or exaction shall become final or binding prior to the
Close of Escrow.
6.02 Casualty/Condemnation. Seller shall promptly notify Buyer of
any casualty to the Land or any condemnation proceeding commenced prior to the
Close of Escrow. If any damage caused by such casualty is material or such
condemnation proceeding relates to or may result in the loss of any material
portion of the Land, Buyer shall, within 10 calendar days after receipt of such
notification, elect in writing either (a) provided Buyer is not in material
default of this Agreement, to terminate this Agreement (Buyer's Termination
Notice), in which event the Full Deposit shall become due to Buyer within 150
days after delivery of Buyer's Termination Notice in accordance with the terms
of the Deposit Note, each party shall bear one-half of the Escrow costs incurred
to date and neither party shall have any further rights or obligations
hereunder, except for those obligations expressly stated as surviving
termination of this Agreement, or (b) to continue to proceed under this
Agreement to Closing without adjustment to the Purchase Price, in which event
upon the Close of Escrow, Seller shall assign to Buyer any insurance proceeds,
compensation, award or other payments or relief resulting from such casualty or
condemnation proceedings to the extent applicable to the Land. In the event
Buyer fails to deliver either such election in writing prior to the expiration
of the 10-day period, Buyer shall be deemed to have elected to continue with the
Closing under clause (b) immediately preceding. For purposes of this Section
6.02, "material" shall mean in the case of (1) damage to the Land, damage which
would require additional repair in connection with Buyer's development of the
Land, which cost to repair would be in excess of Buyer's development costs
without such damage by at least $3,000,000; and (2) the portion of the Land
affected by the condemnation proceeding, 10% of the Land. Notwithstanding
anything herein, in the event of damage to the Land, if Buyer elects to
terminate the Agreement as provided hereinabove, Seller may elect within 10
calendar days to repair such damage prior to Closing or agree to a credit
against the Purchase Price for the cost of repair, in which case Buyer's
Termination Notice shall be of no effect and the parties shall proceed to
Closing.
ARTICLE 7. HAZARDOUS MATERIALS REMEDIATION AND DEMOLITION.
7.01 Hazardous Materials Remediation.
7.01.A Remediation Plan. During the Feasibility Period, Buyer
and Seller shall negotiate the terms of a plan (the "REMEDIATION PLAN") for the
remediation of contamination of the Purchase Property by Hazardous Materials as
identified in investigations conducted by Buyer or Seller and disclosed to the
other (the "REMEDIATION"). After approval by both parties in their sole
discretion, and to Seller's reasonable satisfaction by Varian, the Remediation
Plan shall be initialed by the parties, attached to this Agreement as EXHIBIT E
and incorporated herein as though set forth in full.
7.01.B Remediation. Seller shall cause completion of the
Remediation in accordance with the terms of the Remediation Plan prior to the
Outside Closing Date, as may be extended as provided herein.
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7.01.C Termination on Determination of Seller's Inability to
Complete Remediation. If Buyer determines no earlier than 60 days prior to the
Outside Closing Date that Seller will be unable to complete the Remediation
prior to the Outside Closing Date as extended by any permitted extensions,
Buyer shall give Seller notice of such determination (the "COMPLETION NOTICE").
Unless Seller provides Buyer, within 30 days after receiving the Completion
Notice, with adequate assurances of Seller's ability to timely complete the
Remediation, Buyer may obtain a signed statement from Northgate Environmental
Management, Inc., Buyer's environmental consultant, and from Xxxxxxxxx & Xxxxx,
Seller's environmental consultant, stating that the Remediation cannot be
timely completed (including any permitted extensions) and such delays are not a
result of force majeure events. If such statement cannot be obtained because
such consultants do not agree, then a statement to the same effect from an
independent professional environmental consultant selected by Buyer and Seller
may be substituted by Buyer. If Buyer desires to terminate its obligations
under this Agreement in reliance on such third party statement(s), provided
Buyer is not in material default of this Agreement, such statement(s) shall be
attached to a Buyer's Termination Notice and delivered to Seller, in which
event the Full Deposit shall be returned to Buyer within 150 days of delivery
of such Buyer's Termination Notice, as provided in the Deposit Note. In
addition to the foregoing, Buyer and Seller may agree, in their discretion, to
invoke the provisions of this Section 7.01.C prior to the 60th day prior to the
Outside Closing Date.
7.02 Demolition and Removal of Improvements. Prior to the end of the
Feasibility Period, Buyer and Seller shall negotiate the terms of a plan for the
demolition ("DEMOLITION") of all buildings and some or all improvements on the
Purchase Property (the "DEMOLITION PLAN"). After approval by both parties, in
their sole discretion, and to Seller's reasonable satisfaction by Varian, the
Demolition Plan shall be initialed by the parties, attached as EXHIBIT F to this
Agreement and incorporated herein as though set forth in full. Prior to the
Close of Escrow, Seller shall cause the completion of the Demolition in
accordance with the terms of the Demolition Plan.
7.03 Hazardous Materials Indemnification. Seller's obligations
pursuant to this Section 7.03 shall be effective only during the three year
period that commences upon the Close of Escrow and that terminates upon the date
that is three years after the Close of Escrow. During this period of time only,
Seller, at its sole cost and expense, hereby agrees to indemnify, defend (with
counsel reasonably acceptable to Buyer), protect and hold harmless Buyer and any
successors to Buyer's interest in the Purchase Property (excluding Varian
Associates, Inc., Varian Medical Systems, Varian Semiconductor Equipment
Associates, Inc. or their successors, and each of them) and their respective
directors, officers, employees and agents from and against any and all claims,
demands, losses, damages, liabilities, fines, penalties, charges, administrative
and judicial proceedings and orders, judgments, remedial action and compliance
requirements, enforcement and clean-up actions of any kind, and all costs and
expenses incurred in connection therewith, including, without limitation,
reasonable attorneys' fees and costs of defense and reasonable costs and
expenses of experts and consultants, arising from claims asserted by any
governmental authority or any third party, but only to the extent such claims
relate to the presence of Hazardous Materials on, in or under the Purchase
Property which Hazardous Materials were to have been removed or remediated by
Seller pursuant to the Remediation Plan described in
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Section 7.01.A or to the failure to properly dispose of such Hazardous Materials
in accordance with such Remediation Plan.
ARTICLE 8. MISCELLANEOUS.
8.01 Brokers; Commissions.
8.01.A Brokers. Seller is represented in this transaction by
Xxxxx Xxxx of Eastdil ("SELLER'S BROKER"). Buyer is represented in this
transaction by BT Commercial Real Estate ("BUYER'S BROKER"). If, but only if
Escrow closes, Seller shall pay Seller's Broker a commission at the Close of
Escrow in the amount set forth in their separate written agreement. If, but
only if Escrow closes, Buyer shall pay Buyer's Broker a commission at the Close
of Escrow in the amount set forth in their separate written agreement.
8.01.B Representations; Indemnity. Each party represents to
the other that the representing party has not had any contact or dealings
regarding the subject matter of this transaction through any other licensed
real estate broker or other person who can claim a commission or finder's fee
as a procuring cause of the sale contemplated herein. The representing party
agrees to defend and indemnify the other party against any claim for commission
or other compensation based upon dealings between the representing party and
the broker or other person making such claim.
8.02 Notices. Any notices, requests, demands or other communications
required or permitted to be given under this Agreement shall be in writing and
shall be deemed to have been duly given on the date of service if served
personally (FedEx and similar services shall be considered to be personal
service) or by telephone facsimile or other electronic transmission (provided
that the sender of a telephone facsimile or other electronic transmission has
received a return receipt signed by the party so notified, or has other written
evidence of receipt), and upon the fourth business day after mailing, if mailed
to the party to whom notice is to be given, by first-class mail, registered or
certified, postage prepaid, return receipt requested, and properly addressed as
follows:
SELLER: Communications & Power Industries
Holding Corporation.
Attn: Xxxx Xxxxxxx
000 Xxxxxx Xxx,
Xxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
e-mail: xxxx.xxxxxxx@xxxx.xxx
with a copy to: Xxxxx Xxxxx, Esq.
Irell & Xxxxxxx LLP
0000 Xxxxxx Xx Xxx Xxxxx, Xxx. 000
Xxx Xxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
e-mail: xxxxxx@xxxxx.xxx
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BUYER: Palo Alto Medical Foundation
Attn: Xxxxx Xxxx
000 Xxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
e-mail: xxxxx@xxxx.xxx
with a copy to: Xxxxxxxx X. Xxxxxxx, Esq.
XxXxxxxxx, Xxxxxxx & Xxxxx
000 Xxxxxxx Xxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
e-mail: xxxxxxxx@xxxxxx.xxx
ESCROW HOLDER: First American Title
Attn: Xxxx Xxxxx
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xx. XXX-00000-XX
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
e-mail: xxxxxx@xxxxxxx.xxx
Any party may change its address or the person designated to receive notice for
purposes of this section by giving the other party written notice of the new
information in the manner set forth above. E-mail addresses are given for
purposes of convenience only, and shall not be used for purposes of notice under
this Agreement.
8.03 Legal; Interpretation. This Agreement shall be governed by the
laws of the State of California and venue for any dispute arising hereunder
shall be Santa Xxxxx County, California. The headings and captions of articles
and sections used in this Agreement are for convenience only, and this Agreement
shall be interpreted without reference to any headings or captions. Similarly,
the presence or absence of language in prior drafts of this document shall not
be used to interpret any provision hereof. This Agreement has been prepared and
revised by attorneys for both parties, so any rule of law or construction that
ambiguities are to be construed against the party responsible for drafting the
Agreement or a provision hereof shall not apply.
8.04 Successors Bound. The provisions hereof shall be binding upon
and inure to the benefit of the successors and assigns of Buyer and Seller, as
provided herein.
8.05 Resolution of Disputes. Any dispute, controversy or claim
arising out of or relating to this Agreement, including any dispute relating to
interpretation of or performance under this Agreement ("DISPUTE"), shall be
resolved in the manner set forth in this Section 8.05, which shall be in lieu of
litigation in any court (except as provided in
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Section 8.05.B regarding provisional remedies), and the parties specifically
waive any right to a jury trial of any dispute between them.
8.05.A Negotiation. A party contending that there is a Dispute
shall notify the other party of the Dispute in writing explaining the nature of
the Dispute ("DISPUTE NOTICE"). The parties will attempt in good faith to
resolve the Dispute promptly (but no later than 30 days after receipt of the
notice of such Dispute) by negotiations between senior representatives of the
parties who have authority to settle the Dispute (each, a "REPRESENTATIVE").
Prior to expiration of the 30-day negotiation period, the party who has first
notified the other party of the Dispute shall submit a written offer to settle
the Dispute that includes a specific dollar amount.
8.05.B Provisional Remedies. At any time after expiration of
the 30-day negotiation period and prior to selection of the Arbitrator, a party
requiring provisional relief to maintain the status quo, may seek provisional
relief in court. The granting of such provisional relief shall not constitute a
waiver of the parties' obligations to resolve the Dispute by arbitration as
described in Section 8.05.C and the Arbitrator shall not be deemed deprived of
jurisdiction to award or modify any provisional relief. Once the Arbitrator has
been selected, the Arbitrator shall promptly determine if any existing
provisional relief should remain in effect and may continue, terminate or
modify such provisional relief.
8.05.C ARBITRATION OF DISPUTES. In the event the
Representatives have not resolved the Dispute within the 30-day negotiation
period, the Dispute shall be resolved by binding arbitration before the
arbitrator (the "ARBITRATOR") identified in subsection 8.05.C(10) below, in
accordance with the following provisions:
(1) The parties stipulate and agree that any and
all necessary parties may be joined in the arbitration, but the parties agree to
proceed with arbitration of all Disputes between themselves even if other
parties refuse to participate. The parties specifically waive any objection to
arbitration based on the failure or refusal of any other party to be joined.
(2) Within 60 days after the expiration of the
30-day negotiation period, the arbitration shall be initiated by written notice
(the "ARBITRATION NOTICE") of a demand to arbitrate by registered or certified
mail sent by one party to the other party or parties. If an Arbitration Notice
is not given within the 60-day period, then the right to make a claim based on
the Dispute described in the Dispute Notice shall be forever waived. The
Arbitration Notice shall include a plain statement of the Dispute and the relief
requested and shall select to be governed by either AAA (as described below) or
JAMS (as described below). Within 30 days of receipt of the Arbitration Notice,
each responding party or parties shall provide its own plain statement of the
Dispute and the bases of any defenses it intends to assert in response to the
demand. Seller and Buyer shall each advance one-half of the Arbitrator's fee, as
fixed and required by the Arbitrator in order to initiate the arbitration,
although the parties shall ultimately bear responsibility for such fee as
determined by the Arbitrator.
(3) The parties shall attempt to agree on a
retired judge to be the Arbitrator. If they are unable to agree, the parties
shall simultaneously exchange the
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names of three available retired judges and a judge appearing on both lists
shall be selected. If there is no common available Arbitrator and the parties
still cannot agree on an Arbitrator, the parties shall submit further lists
until one is selected. If the parties have not selected the Arbitrator within 15
days following the responding party's statement of its position, the arbitrator
shall be selected in accordance with the applicable rules of arbitration (AAA or
JAMS, as the case may be). The Arbitrator so selected shall be notified
immediately and a date for the arbitration shall be set within six months (if
the Close of Escrow has not occurred) or nine months (if the Close of Escrow has
occurred) after selection of the Arbitrator. The Dispute shall be resolved by
binding arbitration under the American Arbitration Association's ("AAA")
Commercial Arbitration Rules or the arbitration rules of JAMS (whichever is
elected by the party giving the Arbitration Notice) then in effect, as
supplemented by this Section 8.05. To the extent this Section 8.05 is
inconsistent with the applicable arbitration rules, the provisions of this
Section 8.05 shall control.
(4) The Arbitrator shall schedule a pre-hearing
conference to resolve procedural matters and arrange for the exchange of
information.
(5) Prior to the arbitration, the parties shall
be allowed the following limited discovery: each party shall be entitled to
receive relevant non-attorney-client privileged documents and to take up to
three fact and/or expert witness depositions in the discretion of the
Arbitrator. Any further discovery shall only be allowed by order of the
Arbitrator upon a showing that it is critical to the presentation of a party's
claims or defenses. All discovery shall be completed 30 days prior to the
arbitration.
(6) The arbitration shall be completed in no
more than five full consecutive days, if possible. The following is the
timetable preferred by the parties and which the parties agree cannot be varied
except by the Arbitrator upon a showing that it is critical to the presentation
of a party's claims or defenses. Each party shall have two days to present its
position using documentary and testimonial evidence. The party giving the
Arbitration Notice shall present its case first. One day shall be reserved for
argument or the taking of such further evidence as the Arbitrator may require.
(7) The Arbitrator shall have the power to grant
all legal and equitable remedies, including, but not limited to, injunction,
specific performance, reformation, cancellation, accounting and compensatory
damages, except only that lost profits, consequential damages and punitive
damages shall not be awarded. The Arbitrator shall issue a binding decision
within 30 days of the conclusion of the arbitration. The Arbitrator's
interpretations of California law or applicable federal law shall form the basis
of the decision. The Arbitrator's decision shall be conclusive and binding, and
it may thereafter be confirmed as a judgment by the Superior Court of the State
of California, subject only to challenge on the grounds set forth in California
Code of Civil Procedure Section 1286.2. The validity and enforceability of the
Arbitrator's decision is to be determined exclusively by the California courts
pursuant to the provisions of this Section 8.05.
(8) The Arbitrator shall award reasonable
attorneys' fees and costs, including the Arbitrator's fees and expert fees, to
the "Prevailing Party." For purposes of this section, the "PREVAILING PARTY"
shall be the party which obtains a net monetary recovery, exclusive of
attorneys' fees and costs UNLESS the net monetary
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recovery is equal to or less than the amount of a written offer from the
opposing party made after the negotiations described in Section 8.05.A. The
Arbitrator shall have exclusive and binding authority to determine entitlement
to attorneys' fees and costs, including Arbitrator's and experts' fees, under
this section.
(9) The arbitration shall be conducted in Santa
Xxxxx County, California. Any party may be represented by counsel or
other authorized representative.
(10) The Arbitrator shall be a retired judge of
the Federal District Court or Court of Appeal or the Superior Court,
Appellate Court or Supreme Court of the State of California.
"NOTICE: BY INITIALLING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY
DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF
DISPUTES' PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY
CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE
THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALLING IN THE
SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND
APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE 'ARBITRATION
OF DISPUTES' PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER
AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE
AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO
THIS ARBITRATION PROVISION IS VOLUNTARY. YOU ACKNOWLEDGE THAT YOU HAVE
REVIEWED THE "ARBITRATION OF DISPUTES" PROVISION WITH COUNSEL OR HAVE HAD
AN OPPORTUNITY TO REVIEW IT WITH COUNSEL AND HAVE CHOSEN NOT TO DO SO.
"WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT
DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF
DISPUTES' PROVISION TO NEUTRAL ARBITRATION."
------------------------- ----------------------------
Buyer's Initials Seller's Initials
8.06 Time of Essence. Time is of the essence of this Agreement and
of the Escrow provided for herein.
8.07 Attorneys' Fees. In the event any of the parties shall commence
legal proceedings for the purpose of enforcing any provision or condition
hereof, or by reason of any breach arising under the provisions hereof, then the
successful party in such proceeding shall be entitled to court costs and
reasonable attorneys' fees to be determined by the Court or Arbitrator. Without
limiting the generality of the foregoing, the prevailing party shall be
-25-
entitled to recover its attorneys' fees and other legal expenses incurred in
connection with a bankruptcy or other insolvency-related proceeding of the other
party (and including such fees and expenses incurred in efforts, whether
successful or not, to obtain adequate protection, annulment, modification or
termination of the automatic stay).
8.08 Integration. Except for the Due Diligence Agreement, this
Agreement and the Exhibits hereto contain the entire agreement of the parties
hereto, and supersede any prior written or oral agreements between them
concerning the subject matter contained herein, including, without limitation,
any letters of intent or letters of interest between the parties. THERE ARE NO
REPRESENTATIONS, AGREEMENTS, ARRANGEMENTS OR UNDERSTANDINGS, ORAL OR WRITTEN,
RELATING TO THE SUBJECT MATTER WHICH ARE NOT FULLY EXPRESSED HEREIN, OR IN THE
DUE DILIGENCE AGREEMENT.
8.09 Dependency and Survival of Provisions. The respective
warranties, representations, covenants, agreements, obligations and undertakings
of each party hereunder shall be construed as dependent upon and given in
consideration of those of the other party. The representations and warranties
given in Section 5.03 and Section 5.04 shall survive the Close of Escrow and the
delivery of the Grant Deed for six months. Seller's indemnification set forth in
Section 7.03 shall survive the Close of Escrow and delivery of the Grant Deed
for a period of three years, as provided therein. In addition, the provisions of
Sections 2.06, 3.05, 4.01.A, 5.04.D, 5.05.D, 8.01, 8.02, 8.03, 8.04, 8.05, 8.07,
8.08, 8.09, and 8.13 shall survive the Close of Escrow and delivery of the Grant
Deed, without limitation. Notwithstanding anything in this Agreement, if Buyer
proceeds to and consummates the Close of Escrow, Buyer shall be deemed to have
waived any claim against Seller for and released Seller from any breach of this
Agreement, of the Deposit Note and the Deposit Deed of Trust arising out of any
matter, fact or circumstance known to Buyer prior to the Close of Escrow.
8.10 Risk of Loss; Possession. Risk of loss with respect to the
Purchase Property shall remain with Seller until the Closing, in accordance with
this Agreement. Possession of the Purchase Property and the risk of loss with
respect to the Purchase Property shall pass to Buyer at the Closing.
8.11 Counterparts; Facsimile Signatures. This Agreement may be
executed in counterparts, each of which shall be deemed to be an original, but
which together shall constitute a single document. Signatures transmitted by
facsimile shall be binding; provided, however, that any person transmitting his
or her signature by facsimile shall promptly send an original signature to the
other parties in accordance with Section 8.02. If a facsimile signature is used
for purposes of executing this Agreement, then the party executing by facsimile
shall also promptly send an original signature to Escrow Holder at the address
specified in Section 1.05.
8.12 Force Majeure. Any prevention, delay or stoppage due to
strikes, lockouts, labor disputes, acts of God, inability to obtain labor or
materials or reasonable substitutes therefor, governmental restrictions,
regulations or controls, enemy or hostile government action, civil commotion,
fire or other casualty, and other causes beyond the reasonable control of the
party obligated to perform, shall excuse the performance by such
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party for a period equal to that resulting from such prevention, delay or
stoppage. The foregoing shall not apply to the end of the Feasibility Period,
and the Feasibility Period shall not be extended as a result of force majeure,
without the express consent of the parties, in their discretion.
8.13 Title Claims. Notwithstanding anything herein or in the Grant
Deed, Buyer and Seller agree that any claim Buyer may have after Close of Escrow
relating to title to the Purchase Property shall first be pursued by Buyer
against the Title Company under the Buyer's Title Policy prior to recovering
from Seller.
8.14 Assignment.
8.14.A By Buyer. Other than as provided in this Section 8.14.A
or in furtherance of a tax-deferred exchange in accordance with Section 2.06,
Buyer may not assign its rights or delegate its obligations under this
Agreement, the Deposit Note or the Deposit Deed of Trust, without the prior
written consent of Seller, which consent may be withheld in Seller's
discretion. Seller's prior consent shall not be required for a complete
assignment, after the deposit by Buyer of the Additional Deposit, of all of
Buyer's right, title and interest in and to this Agreement, the Purchase
Property, the Deposit Note and the Deposit Deed of Trust, provided that Buyer
notifies Seller in advance of any such complete assignment, the assignee has
the resources available to perform Buyer's obligations under this Agreement,
and the assignee executes, for Seller's benefit, a written assumption and
agreement to perform all of the obligations of Buyer under, and to remain
subject to all of the conditions of, this Agreement, as may be amended, the
Deposit Note and the Deposit Deed of Trust.
8.14.B By Seller. Buyer acknowledges that this Agreement is
not intended to restrict any transfers of ownership interests in Seller, change
of control, merger, acquisition, sale of all or substantially all of Seller's
assets or other similar transaction affecting Seller. In addition,
notwithstanding anything herein, including without limitation Sections 5.03.B
and 5.03.C, Seller shall have the right to transfer or assign the Purchase
Property and any such transfer or assignment shall not be a default under this
Agreement, provided that Seller notifies Buyer in advance of any such
assignment and the acquiring party expressly assumes and agrees, in writing for
the benefit of Buyer, to be bound by the obligations of Seller under this
Agreement, the Deposit Note and the Deposit Deed of Trust and the acquiring
party has the resources available to perform Seller's obligations under this
Agreement.
8.15 Confidentiality. Buyer and Seller each agrees to treat as
confidential all information, whether written or oral, designated as
confidential in connection with this transaction, including, without limitation,
any documents or information relating to the parties, negotiations between the
parties, the terms and conditions of the letter of intent and this Agreement and
the condition of the Purchase Property. Notwithstanding the foregoing, the
following disclosures are permitted: (a) such disclosures to third persons
(including, in the case of Seller, to Varian) as may be reasonably necessary in
order to consummate the transaction contemplated by this Agreement; (b)
privileged communications by the respective parties, including communications
with the parties' respective counsel and advisors; (c) such disclosures as may
be necessary or required by those governmental
-27-
agencies, authorities, or examiners having jurisdiction over Seller and Buyer,
respectively; and (d) such disclosures as may be required by subpoena or any
other similar court order or discovery request in any civil or criminal
proceeding or investigation. In the event either party desires to disclose any
confidential information or to publicly disclose the pendency of this
transaction, prior to any such disclosure or communication, the party seeking to
make such disclosure or communication shall (1) prior to the deposit of the
Additional Deposit, obtain the consent of the other party, which consent will
not be unreasonably withheld, and (2) consult with the other party regarding the
content of any press release or other public disclosure. Prior to the deposit of
the Additional Deposit, each party shall inform each and every party receiving
confidential information that such information is confidential and is subject to
a prohibition on further dissemination or circulation by any means. Upon
termination of this Agreement other than as a result of the Close of Escrow,
upon request each party shall promptly return to the other party all documents
and materials provided to such party and all copies thereof made by it or its
representatives. The parties acknowledge and agree that remedies at law for
breach or threatened breach of this Section 8.15 are inadequate, and that in
addition to such remedies, each party shall be entitled to equitable relief,
including injunctive relief and specific performance, in the event of any such
breach or threatened breach without the need to demonstrate that monetary
damages are inadequate.
8.16 No Obligations to Third Parties. Except as otherwise expressly
provided herein, the execution and delivery of this Agreement shall not be
deemed to confer any rights upon, nor obligate any of the parties hereto, to any
person or entity other than the parties hereto.
(Signatures on following page.)
-28-
DATED: February 7, 2003
SELLER:
COMMUNICATIONS & POWER INDUSTRIES HOLDING
CORPORATION, a Delaware corporation
By:____________________________________________
Print Name_____________________________________
Its____________________________________________
BUYER:
PALO ALTO MEDICAL FOUNDATION, a California
nonprofit public benefit corporation
By:____________________________________________
Print Name_____________________________________
Its____________________________________________
-29-
ACCEPTANCE BY ESCROW HOLDER
The undersigned Escrow Holder hereby acknowledges that on February ____,
2003, which, pursuant to Section 1.05, is the "EFFECTIVE DATE," the undersigned
received a fully executed duplicate original (with Sections 2.04 and 8.05
initialled by both parties) of the foregoing Agreement of Purchase and Sale by
and between Communications & Power Industries Holding Corporation, as Seller,
and Palo Alto Medical Foundation, as Buyer. Subject to Escrow Holder's receipt
of acceptable supplemental escrow instructions, Escrow Holder agrees to act as
the Escrow Holder under this Agreement, and to comply with these instructions.
Escrow Holder has assigned Xxxxxx Xx. XXX-00000-XX to this transaction for that
purpose.
FIRST AMERICAN TITLE COMPANY
By:_______________________________
Date:_____________________________
EFFECTIVE DATE: __________________
-30-
INDEX OF DEFINED TERMS
PAGE
----
AAA.................................................................... 24
Additional Deposit..................................................... 2
Agreement.............................................................. 1
Arbitration Notice..................................................... 23
Arbitrator............................................................. 23
Buyer.................................................................. 1
Buyer Approval Notice.................................................. 8
Buyer's Broker......................................................... 21
Buyer's Termination Notice............................................. 5
Buyer's Title Notice................................................... 11
Buyer's Title Policy................................................... 12
Buyer's Title Waiver Notice............................................ 11
City................................................................... 1
Close of Escrow........................................................ 5
Closing................................................................ 5
Closing Extension Period............................................... 5
Code................................................................... 7
Completion Notice...................................................... 20
County................................................................. 1
Demolition............................................................. 20
Demolition Plan........................................................ 20
Deposit Deed of Trust.................................................. 2
Deposit Interest Rate.................................................. 3
Deposit Note........................................................... 2
Dispute................................................................ 22
Dispute Notice......................................................... 23
Documents and Materials................................................ 8
Due Diligence Agreement................................................ 1
Effective Date......................................................... 1
End of Feasibility..................................................... 8
Environmental Laws..................................................... 15
Escrow................................................................. 5
Escrow Holder.......................................................... 1
Existing First Deed of Trust........................................... 3
Feasibility Period..................................................... 8
Feasibility Status Notice.............................................. 10
Full Deposit........................................................... 3
Full Reconveyance...................................................... 2
Hazardous Materials.................................................... 15
Initial Deposit........................................................ 2
Initial Title Review Date.............................................. 11
Land................................................................... 1
Material Inaccuracy.................................................... 18
Outside Closing Date................................................... 5
Permitted Exceptions................................................... 11
Preliminary Report..................................................... 11
Prevailing Party....................................................... 25
Purchase Price......................................................... 2
Purchase Property...................................................... 1
Remediation Plan....................................................... 19
Remediation............................................................ 19
Repayment Event........................................................ 6
Representative......................................................... 23
Section 1542........................................................... 17
Seller................................................................. 1
Seller's Approval Notice............................................... 13
Seller's Broker........................................................ 21
Seller's knowledge or Seller's best knowledge.......................... 14
Seller's Title Notice.................................................. 11
Seller's Title Response Date........................................... 11
State.................................................................. 1
Xxxxxx Health.......................................................... 1
Termination of Buyer's Rights.......................................... 4
Varian................................................................. 9
Varian Site Access Agreement........................................... 9
Varian Stock Sale Agreement............................................ 9
SEVENTH AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE
This Seventh Amendment to Agreement of Purchase and Sale ("SEVENTH
AMENDMENT") is entered into as of November 12, 2003, by and between
COMMUNICATIONS & POWER INDUSTRIES HOLDING CORPORATION, a Delaware corporation
("SELLER"), and PALO ALTO MEDICAL FOUNDATION, a California nonprofit public
benefit corporation ("BUYER"), who for consideration, the receipt and adequacy
of which is agreed between them, agree as follows:
1. Original Agreement. Seller and Buyer are the parties to that certain
Agreement of Purchase and Sale dated February 7, 2003, which was reinstated and
amended by that certain First Amendment to Agreement of Purchase and Sale dated
June 9, 2003, and further amended by that certain Second Amendment to Agreement
of Purchase and Sale dated June 30, 2003, that certain Third Amendment to
Agreement of Purchase and Sale dated July 23, 2003, that certain Fourth
Amendment to Agreement of Purchase and Sale dated August 29, 2003, that certain
Fifth Amendment to Agreement of Purchase and Sale dated September 30, 2003, that
certain Sixth Amendment to Agreement of Purchase and Sale dated October 31,
2003, and those certain extension letters between Xxxxxxxx X. Xxxxxxx, Esq. on
behalf of Buyer and Xxxxx X. Xxxxx, Esq. on behalf of Seller dated November 7,
2003 and November 11, 2003 (the "AGREEMENT"), which affects the property
("PROPERTY") commonly known as 000 Xxxxxxxxxx Xxx, designated San Mateo County
Assessor's Parcel No. 000-000-000 and 000-000-000. Capitalized terms not defined
in this Seventh Amendment shall have the meaning given to them in the Agreement.
2. Feasibility Period. The Agreement provides that the End of the
Feasibility Period shall be 5:00 PM Pacific Time on November 12, 2003. Buyer has
requested additional time to agree with Seller on the Remediation Plan and the
Demolition Plan and (a) file and pursue an application to the City of San Xxxxxx
seeking a future change of the City General Plan, Specific Plan, zoning and use
permit for the development by Buyer of the Property as a medical/hospital
facility (collectively, the "ENTITLEMENTS"), and (b) obtain preliminary approval
of the Regional Water Quality Control Board to the Remediation Plan before
depositing the Additional Deposit. Seller is willing to agree to extensions
relating to those conditions, on the terms of this Seventh Amendment, provided
that Buyer agrees that all conditions to be satisfied prior to the end of the
Feasibility Period have been satisfied or waived subject to the provisions of
this Seventh Amendment.
3. Buyer's Approval Notice and Seller's Approval Notice. The parties
agree that for all purposes under the Agreement, the Feasibility Period has
ended and all conditions to have been satisfied prior to the end of the
Feasibility Period have been satisfied or waived; provided however, that this
Seventh Amendment specifies additional or extended conditions. Buyer hereby
gives Buyer's Approval Notice as to all matters other than those matters
described in Sections 6, 7, 8, 9 and 10 herein. No further Buyer's Approval
Notice is required as a condition to Buyer's obligations under the Agreement.
Section 4.02 of the Agreement relating to the Seller's Approval Notice shall be
modified by deleting the phrase
1
"prior to the end of the Feasibility Period" in the 14th and 17th lines of the
Section and replacing it with the phrase "prior to February 27, 2004" in each
instance.
4. Deposit. Section 2.03A of the Agreement is modified as
follows:
A. Initial Deposit. The Initial Deposit ($200,000, plus
accrued interest) shall be released to Seller by Escrow Holder and shall
hereafter be non-refundable, except as otherwise expressly provided in the
Agreement. It is expressly agreed that the failure of any condition to
Buyer's obligations under the Agreement, including without limitation the
failure of the City of San Xxxxxx to approve or indicate approval of the
Application (defined below), the RWQCB Preliminary Approval or the parties
to agree on the Remediation and Demolition Plan shall not entitle Buyer to
a refund of the Initial Deposit.
B. Second Deposit. On February 17, 2004, unless Buyer has
terminated this Agreement as provided in Section 7 below, Buyer shall
deposit with Escrow Holder the sum of $1,000,000 (the "SECOND DEPOSIT"),
which Escrow Holder shall deposit into an interest-bearing account.
C. Additional Deposit. Within five (5) business days of
obtaining the RWQCB Preliminary Approval, the Additional Deposit (i.e.,
sufficient funds to bring the total of the Initial Deposit, the Second
Deposit and the Additional Deposit to $17,500,000) shall be deposited by
Buyer with Escrow Holder into an interest-bearing account.
D. Deposit Note and Deed of Trust. The form of the Deposit
Deed of Trust is attached hereto and incorporated herein as EXHIBIT D.
E. Full Deposit. The "FULL DEPOSIT" shall mean the Initial
Deposit, the Second Deposit and the Additional Deposit. The "EXISTING
FIRST DEED OF TRUST" means the Deed of Trust recorded December 22, 2000 as
document number 2000-162764 in San Mateo County official records for the
benefit of Xxxxx Fargo Bank, a National Association, and securing payment
of a promissory note in the original principal amount of $18,000,000, or
any replacement deed of trust. If upon the deposit by Buyer of the
Additional Deposit, the funds on deposit with Escrow Holder are
insufficient to satisfy the Existing First Deed of Trust, Seller shall
deposit with Escrow Holder any required funds, including without
limitation any portion of the Full Deposit previously released to Seller
pursuant to the Agreement, as amended hereby, necessary to satisfy the
Existing First Deed of Trust. If there is no Existing First Deed of Trust,
the Full Deposit shall be released to Seller upon recordation of the
Deposit Deed of Trust.
5. Close of Escrow. Section 3.03A of the Agreement is modified to
provide that the "OUTSIDE CLOSING DATE" shall be the date twenty-four (24)
months after the Additional Deposit is deposited with Escrow Holder by Buyer.
Section 3.03B of the Agreement is modified to provide that all three possible
Closing Extension Periods may be exercised by Seller if Seller has been unable
to complete Seller's obligations under the Agreement, as modified hereby, prior
to the Outside Closing Date.
6. Remediation Plan and Demolition Plan. Buyer and Seller shall have
until November 25, 2003 to agree on the Remediation Plan and the Demolition
Plan, in their
2
discretion, it being understood that Seller's agreement shall be subject to
obtaining, to Seller's reasonable satisfaction, Varian's approval, as provided
in the Agreement as amended hereby. Section 4.01C, Section 4.02B and Section
7.02 of the Agreement shall be modified by replacing the phrase "Prior to the
end of the Feasibility Period" with "Prior to November 25, 2003". Section 7.01
shall be modified by replacing the phrase "During the Feasibility Period" with
"Prior to November 25, 2003". In the event the parties do not agree on the
Remediation Plan and/or Demolition Plan by November 25, 2003, either party may
elect to terminate the Agreement by providing written notice of such termination
to the other and to Escrow Holder, whereupon the Agreement shall terminate,
except for Buyer's obligations under Sections 4.01A and 8.15 of the Agreement.
7. Application for Zoning Change. Buyer will submit, on or before
December 15, 2003, an application to the City of San Xxxxxx for a future zoning
change to permit a medical/hospital facility to be developed on the Property
("APPLICATION") and use its commercially reasonable efforts to determine the
City of San Xxxxxx' intent to approve and grant the Entitlements. Seller,
through its specifically authorized representatives, will be supportive of the
Application (once approved by Seller) in any contacts with representatives of
the City and Seller's employees. Seller, through its specifically authorized
representatives, will express in writing to the City if reasonably necessary,
Seller's desire that the Application be approved. Seller shall not unreasonably
withhold its approval of the Application (subject to obtaining Varian's
approval). Buyer and Seller hereby waive the provisions of Section 8.15 of the
Agreement with respect to the filing of the Application. If on or before
February 17, 2004, the City of San Xxxxxx has not indicated its support of the
Application to Buyer's satisfaction, this condition shall be deemed to have not
been satisfied. If the City of San Xxxxxx either has failed to indicate its
support of the Application to Buyer's satisfaction or has indicated that it does
not intend to approve the Application, Buyer may terminate the Agreement (except
for Buyer's obligations under Sections 4.01A and 8.15 of the Agreement) upon
written notice to Seller and Escrow Holder given on or before February 17, 2004.
If Buyer does not so elect to terminate the Agreement, Buyer shall deliver the
Second Deposit. Notwithstanding anything herein, prior to the Close of Escrow,
Buyer shall not cause the current designation/permitted uses of the Property to
change or any imposition or restriction to be imposed on the Property or Seller.
Nothing in this Section shall be deemed to modify Buyer's obligations under the
Agreement, including without limitation those obligations set forth in Section
4.01A(4) of the Agreement. For the purposes of this Section 7, Seller's
specifically authorized representatives shall mean O. Xxx Xxxxxxxxxx, Xxxxxx
Xxxxxxx, Xxxx Xxxxxxx and Xxxx Xxxxx.
8. RWQCB Preliminary Approval. The parties agree, provided Seller has
obtained Varian's approval of the Remediation Plan, to present the Remedial
Action Plan (Table 1 to be attached to the Remediation Plan) to the San
Francisco Regional Water Quality Control Board ("RWQCB") for preliminary
confirmation that RWQCB will enter into a Voluntary Cleanup Agreement with
Seller in connection with the performance of the Remedial Action Plan ("RWQCB
PRELIMINARY APPROVAL"). Seller shall use its commercially reasonable efforts to
obtain Varian's approval of the Remedial Action Plan and shall advise Buyer by
November 25, 2003, December 15, 2003 and February 17, 2004 or at any time prior
to any of these dates if Seller believes Varian will not support the proposed
Remedial Action Plan. Seller shall have no obligation to relieve Varian of any
of its obligations owed to Seller or its affiliates, to pay any monies to Varian
or to incur any
3
other liability or obligation to Varian in order to obtain Varian's approval of
the Remedial Action Plan. The parties agree that it is not necessary or even
desirable to obtain a written response from RWQCB, although the parties agree
that Seller shall submit a written confirmation letter to RWQCB following the
meeting in collaboration with Buyer. Buyer's environmental consultant,
Northgate, shall be present at the RWQCB meeting, shall observe and not take any
active participation unless otherwise agreed in advance by Buyer and Seller, and
shall be publicly supportive of the Remedial Action Plan. If the Second Deposit
has been made and the RWQCB Preliminary Approval is obtained (Varian's approval
of the Remedial Action Plan having been obtained), the Second Deposit shall be
non-refundable and Buyer shall promptly deposit the Additional Deposit as
described above. If the RWQCB Preliminary Approval is not obtained by March 31,
2004, the Second Deposit shall be refundable to Buyer upon written notice to
Seller and Escrow Holder given on or before April 5, 2004 that Buyer elects to
terminate the Agreement (except for Buyer's obligations under Sections 4.01A and
8.15 of the Agreement). If Buyer does not so elect to terminate the Agreement,
Seller may at any time elect to terminate the Agreement (except for Buyer's
obligations under Sections 4.01A and 8.15 of the Agreement) upon written notice
to Buyer and Escrow Holder, whereupon the Second Deposit shall be refunded to
Buyer.
9. Varian. Section 4.01D and Section 4.02C of the Agreement shall be
modified by replacing the phrase "Prior to the end of the Feasibility Period"
with "Prior to February 27, 2004".
10. Xxxxxx Health Approval. Section 4.01 G of the Agreement shall be
modified by replacing the phrase "Prior to the end of the Feasibility Period"
with "Prior to February 17, 2004".
11. Owner/Authority. Section 5.03B of the Agreement shall be modified
by replacing the phrase, appearing in the last sentence, "As of the end of the
Feasibility Period" with "As of February 27, 2004".
12. Documents and Materials. Attached hereto and incorporated herein is
an amended EXHIBIT B listing Documents and Materials provided or made available
to Buyer.
13. Effect. As modified by this Seventh Amendment, the Agreement
remains in full force and effect. In the event of any inconsistency between the
Agreement and this Seventh Amendment, the provisions of this Seventh Amendment
shall control.
14. Counterparts and Facsimiles. The parties hereto may execute this
Seventh Amendment simultaneously, in any number of counterparts, and/or upon
facsimile copies, each of which shall be deemed to be an original, but which
together, shall constitute one and the same Seventh Amendment. Each party shall
be entitled to rely upon the facsimile signature of the other party.
[Signatures on next page.]
4
In witness whereof, the parties have executed this Seventh Amendment.
Dated: November 12, 2003
SELLER:
COMMUNICATIONS & POWER INDUSTRIES HOLDING
CORPORATION, a Delaware corporation
By:____________________________________________
PRINT NAME_______________________________
Its____________________________________________
BUYER:
PALO ALTO MEDICAL FOUNDATION, a California
nonprofit public benefit corporation
By:____________________________________________
PRINT NAME_______________________________
Its____________________________________________
5
ACCEPTANCE BY ESCROW HOLDER
The undersigned Escrow Holder hereby acknowledges that on November ____,
2003, the undersigned received a fully executed duplicate original of the
foregoing Seventh Amendment to Agreement of Purchase and Sale by and between
Communications & Power Industries Holding Corporation, as Seller, and Palo Alto
Medical Foundation, as Buyer. Escrow Holder agrees to release the Initial
Deposit (including accrued interest) to Seller in accordance with Seller's wire
instructions.
FIRST AMERICAN TITLE COMPANY
By:________________________________
Date:______________________________
6
NINTH AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE
This Ninth Amendment to Agreement of Purchase and Sale ("NINTH AMENDMENT")
is dated June ___, 2004 for reference purposes and is entered into effective as
of January 30, 2004, by and between COMMUNICATIONS & POWER INDUSTRIES, INC., a
Delaware corporation ("SELLER"), as successor in interest by merger to
COMMUNICATIONS & POWER INDUSTRIES HOLDING CORPORATION, a Delaware corporation,
and PALO ALTO MEDICAL FOUNDATION, a California nonprofit public benefit
corporation ("BUYER"), who for consideration, the receipt and adequacy of which
is agreed between them, agree as follows:
1. Original Agreement. Seller and Buyer are the parties to that
certain Agreement of Purchase and Sale dated February 7, 2003, which was
reinstated by that certain Reinstatement of Agreement of Purchase and Sale
dated March 17, 2003 and amended by that certain First Amendment to
Agreement of Purchase and Sale dated June 9, 2003, and further amended by
that certain Second Amendment to Agreement of Purchase and Sale dated June
30, 2003, that certain Third Amendment to Agreement of Purchase and Sale
dated July 23, 2003, that certain Fourth Amendment to Agreement of
Purchase and Sale dated August 29, 2003, that certain Fifth Amendment to
Agreement of Purchase and Sale dated September 30, 2003, that certain
Sixth Amendment to Agreement of Purchase and Sale dated October 31, 2003,
those certain extension letters between Xxxxxxxx X. Xxxxxxx, Esq. on
behalf of Buyer and Xxxxx X. Xxxxx, Esq. on behalf of Seller dated
November 7, 2003 and November 11, 2003, that certain Seventh Amendment to
Agreement of Purchase and Sale ("SEVENTH AMENDMENT") dated November 12,
2003, that certain extension letter from Xxxxxxxx X. Xxxxxxx, Esq. on
behalf of Buyer to Xxxxx X. Xxxxx, Esq. on behalf of Seller dated November
25,2003, that certain Eighth Amendment to Agreement of Purchase and Sale
dated November 26, 2003 and those certain extension letters between
Xxxxxxxx X. Xxxxxxx, Esq. on behalf of Buyer and Xxxxx X. Xxxxx, Esq. on
behalf of Seller dated December 10, 2003, December 15, 2003, December 19,
2003 and January 20, 2004 (the "AGREEMENT"), which affects the Purchase
Property. Capitalized terms not defined in this Ninth Amendment shall
have the meaning given to them in the Agreement.
2. Feasibility Period. The Agreement provides that the End of the
Feasibility Period shall have ended on January 30, 2004. Since that time, Buyer
and Seller have been negotiating to satisfy Buyer's and Seller's conditions to
the purchase of the Purchase Property by Buyer. Those conditions have been
addressed by the parties as provided in this Ninth Amendment. Accordingly, the
Feasibility Period has terminated and Buyer agrees to proceed with the purchase
of the Purchase Property on the terms of the Agreement, as modified by this
Ninth Amendment..
3. Buyer's Approval Notice and Seller's Approval Notice. The parties agree
that for all purposes under the Agreement, the Feasibility Period has ended and
all conditions to have been satisfied prior to the end of the Feasibility Period
have been satisfied or waived; Buyer hereby gives Buyer's Approval Notice as to
all matters other than the approval of the RWQCB as provided in Section 11
herein. No further Buyer's Approval Notice is required
1
as a condition to Buyer's obligations under the Agreement, except as provided in
Section 11 herein.
4. Purchase Price. Section 2.02 of the Agreement shall be modified to
provide that the Purchase Price for the Purchase Property is reduced to Twenty
Three Million Seven Hundred Fifty Two Thousand Five Hundred Dollars
($23,752,500), subject to further adjustment as described in this Ninth
Amendment.
5. Deposit. Section 2.03.A of the Agreement, as previously
amended by the Seventh Amendment, is further modified as follows:
A. Second Deposit. In lieu of the Second Deposit in the amount
of $1,000,000, upon execution of this Agreement, Buyer shall deliver to
Seller, outside of Escrow, but with full credit as a deposit in Escrow the
sum of Two Hundred Fifty Thousand Dollars ($250,000) (the "SECOND
DEPOSIT"). It is expressly agreed that the failure of any condition to
Buyer's obligations under the Agreement, including without limitation the
failure to obtain the RWQCB approval described in Section 11 of this Ninth
Amendment shall not entitle Buyer to a refund of the Second Deposit, or
the Initial Deposit. Upon Closing, the Initial Deposit and Second Deposit
shall be credited against the Purchase Price.
B. Additional Deposit. In lieu of the Additional
Deposit described in the Seventh Amendment, within five (5)
business days of obtaining the RWQCB Approval, Twelve Million Five
Hundred Thousand Dollars ($12,500,000) shall be delivered to
Seller, outside of Escrow, but with full credit as a deposit in
Escrow, as the Additional Deposit (i.e., for a Full Deposit of
Twelve Million Nine Hundred Fifty Thousand Dollars ($12,950,000)).
No interest shall accrue on the Full Deposit.
C. Deposit Note and Deed of Trust. All references in
the Agreement to the Deposit Note, the Deed of Trust, Exhibit D to
the Agreement, and the Full Reconveyance are hereby deleted.
D. Existing First Deed of Trust. The "Existing First
Deed of Trust" has been satisfied and released of record.
6. Liquidated Damages. Section 2.04 of the Agreement is
deleted and replaced with the following:
"2.04 LIQUIDATED DAMAGES BY INITIALLING THIS SECTION 2.04 IN THE SPACE
PROVIDED BELOW, BUYER AND SELLER AGREE THAT IF THE CLOSING FAILS TO OCCUR BY
REASON OF THE DEFAULT OF BUYER, THE FULL DEPOSIT SHALL BE DEEMED LIQUIDATED
DAMAGES FOR BUYER'S NON-PERFORMANCE AS SELLER'S SOLE AND EXCLUSIVE REMEDY
AGAINST BUYER FOR SUCH DEFAULT. BUYER AND SELLER AGREE THAT IT WOULD BE
IMPRACTICAL AND EXTREMELY DIFFICULT TO FIX ACTUAL DAMAGES RESULTING FROM SUCH
DEFAULT, DUE TO THE NATURE OF THIS TRANSACTION AND THE UNIQUE NATURE OF THE
PURCHASE PROPERTY, AND THAT A REASONABLE ESTIMATE OF SELLER'S DAMAGES IN SUCH
EVENT IS THE FULL DEPOSIT ($12,950,000.00), IN VIEW OF, AMONG OTHER THINGS, THE
ANCILLARY AGREEMENTS
2
UNDERTAKEN BY SELLER IN CONNECTION WITH THIS AGREEMENT (INCLUDING WITHOUT
LIMITATION, THE ENVIRONMENTAL AGREEMENT AND OTHER AGREEMENTS WITH VARIAN AND/OR
RELATED TO RELOCATING SELLER'S BUSINESS OPERATIONS) AND SELLER'S AGREEMENT TO
ACCEPT A LIQUIDATED SUM IN LIEU OF ITS REMEDY OF SPECIFIC PERFORMANCE. BUYER AND
SELLER AGREE THAT LIQUIDATED DAMAGES ARE PARTICULARLY APPROPRIATE FOR THIS
TRANSACTION AND AGREE THAT SAID LIQUIDATED DAMAGES SHALL BE PAID IN THE EVENT OF
BUYER'S BREACH OF ITS OBLIGATION TO PURCHASE THE PURCHASE PROPERTY,
NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT. THE PAYMENT OF SUCH AMOUNT
AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE
MEANING OF CALIFORNIA CIVIL CODE SECTION 3275 OR 3369, BUT IS INTENDED TO
CONSTITUTE LIQUIDATED DAMAGES TO SELLER UNDER CALIFORNIA CIVIL CODE SECTIONS
1671, 1676 AND 1677. NOTHING IN THIS PROVISION SHALL, HOWEVER, BE DEEMED TO
LIMIT BUYER'S LIABILITY TO SELLER FOR DAMAGES OR INJUNCTIVE RELIEF FOR BREACH OF
BUYER'S OBLIGATIONS UNDER SECTION 4.01A (INDEMNITY RE: BUYER'S ACTIVITIES AT THE
PROPERTY) OR SECTION 8.07 (ATTORNEYS' FEES). IN THE EVENT ANY PORTION OF THE
FULL DEPOSIT REMAINS IN ESCROW AT THE TIME OF BUYER'S DEFAULT, BUYER AND SELLER
HEREBY INSTRUCT AND AUTHORIZE ESCROW HOLDER TO RELEASE SUCH PORTION TO SELLER.
FURTHER, BUYER AND SELLER HEREBY INSTRUCT AND AUTHORIZE ESCROW HOLDER TO RETURN
TO SELLER THE DEPOSIT NOTE MARKED "SATISFIED" AND RECORD THE FULL RECONVEYANCE
AND THE TERMINATION OF BUYER'S RIGHTS, WHICH ARE BEING HELD BY ESCROW HOLDER."
__________________________ ____________________________
Buyer Seller
7. Memorandum of Agreement. Section 2.05 of the Agreement is modified to
provide that simultaneously with delivery of the Additional Deposit to Seller,
Seller and Buyer shall execute a Memorandum of the Agreement which shall be
recorded. The Memorandum of Agreement shall provide notice of Buyer's right to
purchase the Property in accordance with the terms of the Agreement. Buyer shall
deposit with Escrow Holder an executed (in recordable form) Termination of
Buyer's Rights under the Agreement to be held by Escrow Holder and recorded in
the event the Agreement is terminated as a result of Buyer's default.
8. Buyer's Remedies. Section 2.07 of the Agreement is modified to provide
that in the event of Seller's default under the Agreement, Buyer shall have the
remedy of specific performance, in addition to its right to terminate its
obligations under the Agreement. These remedies shall be exclusive and only one
such remedy may be elected by Buyer. In the event Seller fails to vacate the
Purchase Property as provided in Section 7.02 of the Agreement as modified by
this Ninth Amendment (see Section 14 below) prior to the Outside Closing Date,
as may be extended as provided in Section 3.03.B of the Agreement, as modified
by this Ninth Amendment, Buyer shall have the right to evict Seller and deduct
3
from the Purchase Price any reasonable out of pocket costs incurred by Buyer in
such eviction.
9. Close of Escrow. Sections 3.03A of the Agreement is modified to provide
that the "OUTSIDE CLOSING DATE" shall be the date twenty four (24) months after
the Additional Deposit is delivered to Seller by Buyer. Section 3.03.B of the
Agreement is modified to allow Seller to extend the Closing beyond the Outside
Closing Date, up to six (6) additional months to enable Seller to vacate the
Property in accordance with Sections 7.01and 7.02 of the Agreement, as modified
by this Ninth Amendment. In the event the Outside Closing Date is so extended by
Seller, Buyer shall receive a credit against the Purchase Price of One Hundred
Thousand Dollars ($100,000) for each month the Closing is extended beyond the
Outside Closing Date, prorated on a daily basis for any portion of the extension
period which is less than one full month. Similarly, if Seller provides Buyer
notice that it has vacated the Property in compliance with Sections 7.01 and
7.02 of the Agreement, as modified by this Ninth Amendment, prior to the Outside
Closing Date, the Purchase Price shall be increased by One Hundred Thousand
Dollars ($100,000) for each month prior to the Outside Closing Date that the
Closing occurs, prorated on a daily basis for any portion of the period which is
less than one full month.
10. Seller's Failure to Comply. Section 3.03.C of the Agreement is
modified to provide that a "REPAYMENT EVENT" shall mean only that Seller has
failed to vacate the Purchase Property and deliver the Grant Deed in accordance
with the Agreement, as modified by this Ninth Amendment.
11. Environmental Agreement. Attached hereto as EXHIBIT G is a form of
agreement ("ENVIRONMENTAL AGREEMENT") relating among other things to Hazardous
Materials on the Purchase Property, the implementation of a Remedial Action Plan
(therein and herein defined as "RAP") and the purchase of an Insurance Policy,
to be entered into by Seller, Buyer, Varian, and others. The Environmental
Agreement provides that the RAP will be submitted to the Regional Water Quality
Control Board for the San Francisco Bay area ("RWQCB") for its approval. Buyer
agrees to comply or cause the applicable party to comply with the obligations to
timely submit the RAP and seek the approval of the RWQCB to such RAP and
Prospective Purchaser Agreement. In the event that the approval of the RAP by
the RWQCB is not obtained within 120 days of the effective date of the
Environmental Agreement, and for no other reason, Buyer may, by prompt (two
business days) written notice to Seller and Escrow Holder, terminate its
obligation to purchase the Purchase Property under the Agreement, and the
parties to the Agreement shall have no further obligations under the Agreement,
except Buyer's obligations under Sections 4.01A and 8.15 of the Agreement.
Without limiting the provisions of the Agreement as modified by this Ninth
Amendment, Buyer expressly acknowledges to Seller that no change in circumstance
(including with regard to the status of entitlements for redevelopment of the
Purchase Property), other than a failure of an express condition set forth in
the Agreement as modified by this Ninth Amendment, shall entitle Buyer to
terminate its obligations under the Agreement.
12. Buyer's Conditions to Closing. The conditions to Buyer's obligation to
purchase the Purchase Property set forth in Sections 4.01.C, 4.01.D, 4.01.E,
4.01.F, and 4.01.G of the Agreement and in Sections 7 and 8 of the Seventh
Amendment, are hereby waived and satisfied. There shall be added to the
Agreement Section 4.01.J, as follows:
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"4.01.J Compliance with Environmental Agreement. Seller shall have timely
performed all of its obligations under the Environmental Agreement which were to
be performed prior to the Closing."
13. Seller's Conditions to Closing. The conditions to Seller's
obligation to sell the Purchase Property set forth in Sections 4.02.B,
4.02.C, 4.02.D, and 4.02.E to Buyer's obligation to purchase the Purchase
Property, are hereby waived and satisfied. There shall be added to the
Agreement Section 4.02.G, as follows
"4.02G Compliance with Environmental Agreement. Buyer shall have timely
performed all of its obligations under the Environmental Agreement which were to
be performed prior to the Closing."
14. Hazardous Materials Remediation, Demolition and Vacation. .
Article 7 (Sections 7.01, 7.02 and 7.03 and any subsections thereof) of
the Agreement is deleted and replaced with the following:
"7.01 Hazardous Materials Remediation. Buyer agrees that Seller shall have
no obligation to undertake any remediation of Hazardous Materials existing on
the Purchase Property, except (A) in connection with the decommissioning and
closure of its facility in accordance with the provisions of Appendix III D to
the Environmental Agreement and incorporated herein and (B) "New Contamination".
"NEW CONTAMINATION" means any Hazardous Materials which are introduced onto the
Property after the Effective Date of this Agreement and before the Close of
Escrow by any party other than Buyer or an agent of Buyer, and of which Seller
is notified by Buyer within five (5) years after the Close of Escrow."
"7.02 Seller to Vacate the Purchase Property. Prior to the Outside Closing
Date, as may be extended by Seller as provided in Section 3.03.B of the
Agreement, as amended by this Ninth Amendment, Seller shall cease its operations
at the Purchase Property and complete its obligations specified in Appendix III
D to the Environmental Agreement relating to decommissioning and closure of its
facilities. Seller shall remove all personal property and equipment, including
trade fixtures, other than those identified in Appendix V D to the Environmental
Agreement, which items may remain on the premises. Upon request, Seller shall
advise Buyer of the status of its activities including the status of any permit
process in the City of Palo Alto, California in which Seller intends to relocate
its business from the Purchase Property and Buyer may periodically attend
meetings between Seller and the City of Palo Alto to monitor the status of the
permit process."
15. Owner/Authority. Section 5.03B of the Agreement shall be modified by
replacing the phrase, appearing in the last sentence, "As of the end of the
Feasibility Period" with "As of execution of the Ninth Amendment".
16. Documents and Materials. Attached hereto and incorporated
herein is an amended EXHIBIT B listing Documents and Materials provided or
made available to Buyer.
17. Assignment. Section 8.14.A of the Agreement is modified to provide
that Buyer may not assign the Agreement or any of its rights thereunder nor may
it delegate its obligations thereunder to any person or entity other than to 301
Industrial, LLC ("301"), which is a party to the Environmental Agreement. Any
assignment to 301 shall be pursuant to the form of Assignment attached as
Appendix III A to the Environmental Agreement.
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18. Confidentiality. Section 8.15, of the Agreement is deleted.
19. Effect. As modified by this Ninth Amendment, the Agreement remains in
full force and effect. In the event of any inconsistency between the Agreement
and this Ninth Amendment, the provisions of this Ninth Amendment shall control.
This Ninth Amendment including the Exhibits hereto contains the terms, promises,
representations and understandings between Buyer and Seller relating to the
subject matter of this Ninth Amendment, and supercedes any other oral or written
agreement or understanding between Buyer and Seller regarding the subject matter
of this Ninth Amendment. Buyer and Seller each agrees that no promises,
representations or inducements have been made to it by the other which caused it
to sign this Agreement other than the promises which are expressly set forth
herein or in any writing entered into contemporaneously herewith or which
writing is referred to herein. This Ninth Amendment is the result of
negotiations among and has been reviewed by each party and its respective
counsel; accordingly, this Ninth Amendment shall be deemed to be the product of
both parties, and no ambiguity shall be construed in favor or against either
party.
20. Counterparts and Facsimiles. The parties hereto may execute this Ninth
Amendment simultaneously, in any number of counterparts, and/or upon facsimile
copies, each of which shall be deemed to be an original, but which together,
shall constitute one and the same Ninth Amendment. Each party shall be entitled
to rely upon the facsimile signature of the other party.
21. Headings. The headings in this Ninth Amendment are inserted
for convenience only and are not intended to describe, interpret, define,
or limit the scope, extent or intent of this Ninth Amendment or any
provision hereof.
[Signatures on next page.]
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In witness whereof, the parties have executed this Ninth Amendment.
Dated: June ___, 2004
SELLER:
COMMUNICATIONS & POWER INDUSTRIES, INC., a
Delaware corporation
By:____________________________________________
PRINT NAME_____________________________________
Its____________________________________________
BUYER:
PALO ALTO MEDICAL FOUNDATION, a California
nonprofit public benefit corporation
By:____________________________________________
PRINT NAME_____________________________________
Its____________________________________________
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ACCEPTANCE BY ESCROW HOLDER
The undersigned Escrow Holder hereby acknowledges that on _________, 2004,
the undersigned received a fully executed duplicate original of the foregoing
Ninth Amendment to Agreement of Purchase and Sale by and between Communications
& Power Industries, Inc., as Seller, and Palo Alto Medical Foundation, as Buyer.
FIRST AMERICAN TITLE COMPANY
By:__________________________________
Date:________________________________
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