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Equinix / IBM - Property Purchase Agreement
EXHIBIT 10.23 ================================================================================
PURCHASE AGREEMENT
------------------
between
INTERNATIONAL BUSINESS MACHINES CORPORATION
-------------------------------------------
and
EQUINIX, INC.
-------------
May 23, 2000
Land Near Highway 85
and Great Oaks Boulevard
San Jose, California
================================================================================
TABLE OF CONTENTS
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Page
---- ARTICLE 1 Purchase and Sale.............................................. 1
1.1 The Property................................................ 1
1.2 Confirmation of Acreage..................................... 1
ARTICLE 2 Purchase Price................................................. 1
2.1 Amount and Payment.......................................... 1
2.2 Deposit..................................................... 2
2.3 Liquidated Damages.......................................... 2
ARTICLE 3 Completion of Sale............................................. 2
3.1 Place and Date.............................................. 2
ARTICLE 4 Title and Condition............................................ 3
4.1 Title to the Real Property.................................. 3
4.2 Acceptance of Title......................................... 3
4.3 Condition of the Property................................... 3
4.4 Assessment Districts........................................ 4
ARTICLE 5 Representations and Warranties................................. 5
5.1 Seller...................................................... 5
5.2 Buyer....................................................... 6
ARTICLE 6 Covenants...................................................... 6
6.1 Seller...................................................... 6
6.2 Buyer....................................................... 7
6.3 Eminent Domain.............................................. 8
6.4 Utilities Easement Over Real Property....................... 9
6.5 Use of Entrance Road........................................ 9
6.6 Great Oaks Extension........................................ 9
6.7 Easement over Retained Property............................. 10
6.8 Easement over White Plains Road............................. 10
6.9 Cooperation in Development.................................. 10
6.10 Definition of Force Majeure................................. 10
ARTICLE 7 Conditions Precedent........................................... 10
7.1 Seller...................................................... 10
7.2 Buyer....................................................... 11
ARTICLE 8 Closing as to Real Property.................................... 12
8.1 Procedure................................................... 12
8.2 Possession.................................................. 12
8.3 Closing Costs............................................... 12
8.4 Prorations.................................................. 12
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ARTICLE 9 Reconveyance of Extraneous Parcel............................ 13
9.1 Lot Line Adjustment....................................... 13
9.2 Title to the Extraneous Parcel............................ 13
9.3 Closing................................................... 13
ARTICLE 10 General..................................................... 14
10.1 Notices................................................... 14
10.2 Attorneys' Fees........................................... 15
10.3 Governing Law............................................. 15
10.4 Construction.............................................. 15
10.5 Survival.................................................. 15
10.6 Terms Generally........................................... 15
10.7 Further Assurances........................................ 16
10.8 Partial Invalidity and Waiver............................. 16
10.9 Waiver of Jury Trial...................................... 16
10.10 No Third-Party Beneficiaries.............................. 16
10.11 Confidentiality........................................... 16
10.12 Miscellaneous............................................. 17
Exhibit A Preliminary Report Exhibit B Map of Real Property Exhibit C Permits Exhibit D Agreements Exhibit E Grant Deed Exhibit E-1 Grant Deed (Extraneous Parcel) Exhibit F Assignment Exhibit G Seller's Closing Certificate Exhibit H Sewer Connection Easement Exhibit I Utility Easement Exhibit J Buyer's Closing Certificate Exhibit K Entrance Road Easement Exhibit L Certificate of Nonforeign Status Exhibit L-1 Certificate of Nonforeign Status (Extraneous Parcel) Exhibit M White Plains Road Easement
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PURCHASE AGREEMENT
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THIS AGREEMENT, made as of May 23, 2000, by and between INTERNATIONAL
------------- BUSINESS MACHINES CORPORATION ("Seller"), and EQUINIX, INC. ("Buyer"), ----------------------------- ------------
W I T N E S S E T H:
In consideration of the covenants in this Agreement, Seller and Buyer agree as follows:
ARTICLE 1
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Purchase and Sale
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1.1 The Property. Seller agrees to sell to Buyer and Buyer agrees to
------------ purchase from Seller, in accordance with this Agreement, all of the following property (collectively, the "Property"):
(a) The real property in the City of San Jose, Santa Clara County, California, comprising 78.446 acres, described in Amended Preliminary Report No. 518173 dated as of April 21, 2000 (the "Preliminary Report"), prepared by First American Title Insurance Company (the "Title Company"), a copy of which is attached hereto as Exhibit A, but excluding the Extraneous Parcel (as defined in section 9.1), together with all improvements on such real property and all easements and rights appurtenant to such real property (all such real property, improvements, and easements and rights are collectively the "Real Property");
(b) All development approvals, entitlements and permits (the "Permits") relating to the Real Property described in Exhibit C attached hereto; and
(c) Seller's interest in all agreements (the "Agreements") relating to the Real Property described in Exhibit D attached hereto.
1.2 Confirmation of Acreage. Buyer and Seller acknowledge that the
----------------------- land area of the Real Property is 78.446 acres, as shown on the boundary survey of the Real Property dated May 16, 2000 (the "Boundary Survey"), prepared by Nolte & Associates (the "Surveyor"). Buyer and Seller agree to be bound by the Surveyor's calculation of the land area of the Real Property, as shown on the Boundary Survey. Buyer shall pay the cost of the Boundary Survey.
ARTICLE 2
---------
Purchase Price
--------------
2.1 Amount and Payment. The total purchase price for the Property
------------------ (the "Purchase Price") shall be eighty million seven hundred twelve thousand eighty-five and 29/100 dollars ($80,712,085.29). At the Closing (as hereinafter defined) on the Closing Date (as hereinafter
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defined), Buyer shall pay the total Purchase Price to Seller in cash in immediately available funds.
2.2 Deposit. Prior to the date of this Agreement, Buyer has deposited the
------- sum of five hundred thousand dollars ($500,000) (the "Initial Deposit") in cash in immediately available funds in escrow with the Title Company. Buyer shall, within one (1) business day after Buyer and Seller shall have executed and delivered this Agreement, deposit the sum of three million five hundred thirty- five thousand six hundred four and 26/100 dollars ($3,535,604.26) (the "Additional Deposit") in cash in immediately available funds in escrow with the Title Company. The Initial Deposit and the Additional Deposit are collectively the "Deposit." The Deposit shall be held by the Title Company in an interest- bearing account designated in writing by Buyer and approved in writing by Seller. If Seller and Buyer complete the purchase and sale of the Property in accordance with this Agreement, the Deposit and all interest thereon shall be applied to payment of the Purchase Price in accordance with section 2.1 hereof. If the purchase and sale of the Property is not so completed and this Agreement terminates for any reason other than a default by Buyer under or a breach by Buyer of this Agreement, then the Deposit and all interest thereon shall be returned to Buyer upon such termination of this Agreement.
2.3 Liquidated Damages. SELLER AND BUYER AGREE THAT, IF BUYER DEFAULTS
------------------ UNDER OR BREACHES THIS AGREEMENT AND FAILS TO PURCHASE THE PROPERTY IN ACCORDANCE WITH THIS AGREEMENT, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT BY GIVING A NOTICE OF TERMINATION TO BUYER AND, UPON SUCH TERMINATION OF THIS AGREEMENT, THE DEPOSIT AND ALL INTEREST THEREON SHALL BE PAID TO SELLER AND RETAINED BY SELLER AS LIQUIDATED DAMAGES AND AS SELLER'S SOLE REMEDY AT LAW OR IN EQUITY. SELLER AND BUYER AGREE THAT, UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT, ACTUAL DAMAGES MAY BE DIFFICULT TO ASCERTAIN AND THE DEPOSIT AND ALL INTEREST THEREON IS A REASONABLE ESTIMATE OF THE DAMAGES THAT WILL BE INCURRED BY SELLER IF BUYER DEFAULTS UNDER OR BREACHES THIS AGREEMENT AND FAILS TO PURCHASE THE PROPERTY IN ACCORDANCE WITH THIS AGREEMENT.
SELLER'S INITIALS: _____ BUYER'S INITIALS: _____
ARTICLE 3
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Completion of Sale
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3.1 Place and Date. The purchase and sale of the Property shall be
-------------- completed in accordance with Article 8 hereof (the "Closing"). The Closing shall occur through escrow No. 518173 with the Title Company at 1737 North First Street, San Jose, California 95112, on June 15, 2000 (the "Closing Date"), or at such other place or on such other date as Seller and Buyer agree in writing. Prior to the Closing Date, Seller and Buyer each shall give appropriate
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written escrow instructions, consistent with this Agreement, to the Title Company for the Closing in accordance with this Agreement.
ARTICLE 4
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Title and Condition
-------------------
4.1 Title to the Real Property. Seller shall convey to Buyer good and
-------------------------- marketable fee title to the Real Property, by a duly executed and acknowledged Grant Deed (the "Grant Deed") in the form of Exhibit E attached hereto, free and clear of liens, encumbrances, leases, easements, restrictions, rights, covenants and conditions, except the following (the "Permitted Exceptions"): (a) the matters shown as exceptions 1 (lien of property taxes and assessments not yet delinquent), 2 (as modified by that certain letter dated May 15, 2000 from William Murray to Glenn Snyder and Christine Shen (the "Title Letter")), 3, 4, 5, 6 and 7 (as modified by the Title Letter) in the Preliminary Report, (b) matters shown by the ALTA Survey or by a physical inspection of the Real Property, (c) any liens, assessments or other liabilities arising by virtue of the Real Property's being located within any present or future improvement district or assessment district, and (d) any other matters created, permitted or approved by Buyer. Buyer has engaged the Surveyor to produce an ALTA/ACSM Survey of the Real Property (the "ALTA Survey"), which shall be complete prior to Closing but in no event later than June 15, 2000. Buyer shall pay the cost of the ALTA Survey. Buyer and Seller acknowledge that the ALTA Survey could reveal a Material Encumbrance (as hereinafter defined) not shown on the Boundary Survey. In such event, Buyer and Seller agree that (i) if the Material Encumbrance results in an FAR Reduction (as hereinafter defined) of less than ten percent (10%), then the Purchase Price shall be reduced by a percentage equal to the FAR Reduction and (ii) if the Material Encumbrance results in an FAR Reduction of more than ten percent (10%), then Buyer shall have the right to (x) reduce the Purchase Price by ten percent (10%) and purchase the Real Property at such reduced Purchase Price or (y) terminate this Agreement and receive a refund of the Deposit. As used herein, the term "Material Encumbrance" shall mean an encumbrance on the Real Property that has the effect of reducing the floor area ratio that can be developed by Buyer on the Real Property and the term "FAR Reduction" shall mean the percentage by which the floor area ratio that can be developed by Buyer on the Real Property is reduced as a result of any Material Encumbrance. Seller shall transfer to Buyer good title to the Permits and the Agreements, by a duly executed Assignment (the "Assignment") in the form of Exhibit F attached hereto, free and clear of liens, security interests and adverse claims. Buyer's acceptance of title from Seller subject to future assessment districts does not constitute Buyer's approval of any such future assessment districts.
4.2 Acceptance of Title. Buyer's acceptance of the Grant Deed from Seller
------------------- for the Real Property at the Closing on the Closing Date and the issuance of a title insurance policy to Buyer by the Title Company on the Closing Date shall conclusively establish that Seller conveyed the Real Property to Buyer as required by this Agreement and shall discharge in full Seller's obligations under section 4.1 hereof with respect to title to the Real Property.
4.3 Condition of the Property. Except for the express representations and
------------------------- warranties of Seller set forth in section 5.1 hereof and in Seller's Closing Certificate (as hereinafter
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defined), and except for the express covenants of Seller in this Agreement, Buyer is acquiring the Property "AS IS, WHERE IS, AND WITH ALL FAULTS," without any covenant, representation or warranty of any kind or nature whatsoever, express or implied, and Buyer is relying solely on Buyer's own investigation of the Property. Except for such express representations, warranties and covenants, Seller makes no covenants, representations or warranties, express or implied, of any kind or nature whatsoever with respect to the Property. Buyer acknowledges that defects, deficiencies or flaws may exist in the quality, legal compliance, physical condition or general utility of the Property and Buyer acknowledges that Buyer has been given the opportunity to investigate and evaluate any such defects, deficiencies and flaws. Buyer expressly assumes all risks of any such defects, deficiencies and flaws and Buyer agrees that Seller shall have no liability whatsoever for any such defects, deficiencies or flaws, except only for such express representations and warranties made by Seller in section 5.1 hereof and in Seller's Closing Certificate and except for the express covenants of Seller in this Agreement. Without limiting the foregoing, in connection with Buyer's investigation of the Real Property, Buyer has investigated the presence of hazardous substances (as hereinafter defined) in, on or under the Real Property and the violation of environmental laws (as hereinafter defined) at the Real Property. As used in this Agreement, "hazardous substance" means any substance or material that is described as a toxic or hazardous substance, waste or material or a pollutant or contaminant, or words of similar import, in any environmental law and "environmental law" means all federal, state and local laws, ordinances, rules and regulations now or hereafter in force, as amended from time to time, in any way relating to or regulating human health or safety, or industrial hygiene or environmental conditions, or protection of the environment, or pollution or contamination of the air, soil, surface water or groundwater. Buyer hereby expressly, fully, forever and irrevocably waives and releases all claims, demands, liabilities, losses and causes of action against Seller that in any way (directly or indirectly) arise out of, result from or relate to the presence of any hazardous substance in, on or under the Real Property or the violation of any environmental law at the Real Property. Buyer intends this Agreement to be a general release that covers all such claims, demands, liabilities, losses and causes of action, whether known or unknown or suspected or unsuspected. Buyer hereby waives all rights under California Civil Code Section 1542, which provides:
A general release does not extend to claims
which the creditor does not know or suspect to exist
in his favor at the time of executing the release,
which if known by him must have materially affected
his settlement with the debtor.
Buyer agrees that this Agreement is a full and final general release of all such claims, demands, liabilities, losses and causes of action against Seller.
4.4 Assessment Districts. Buyer acknowledges that the City of San Jose is
-------------------- reviewing the possibility of forming one or more assessment districts which may include the Real Property. Buyer has satisfied itself as to the benefits and burdens of such possible assessment districts, and agrees that Seller shall have no liability to Buyer with respect to any assessments or other obligations relating thereto.
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ARTICLE 5
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Representations and Warranties
------------------------------
5.1 Seller. The representations and warranties of Seller in this section
------ 5.1 and in Seller's Closing Certificate (as hereinafter defined) are a material inducement for Buyer to enter into this Agreement. Buyer would not purchase the Property from Seller without such representations and warranties of Seller. Such representations and warranties shall survive the Closing for only one (1) year after the Closing Date, at which time such representations and warranties shall terminate. The term "Seller's actual knowledge" means the current actual knowledge of Victor Weinstein, Craig Nemson, and Alan Wolfert, without duty of inquiry. Seller represents and warrants to Buyer as of the date of this Agreement as follows:
(a) Seller is a corporation duly incorporated and organized and validly existing and in good standing under the laws of the State of New York. Seller is duly qualified to do business and is in good standing in the State of California. Seller has full corporate power and authority to enter into this Agreement and to perform this Agreement. The execution, delivery and performance of this Agreement by Seller have been duly and validly authorized by all necessary action on the part of Seller and all required consents and approvals have been duly obtained. This Agreement is a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
(b) The Agreements have not been amended or modified. To the current actual knowledge of Seller, Seller is not materially in default in the performance of any material covenant to be performed by Seller under the Agreements.
(c) Seller is not a "foreign person" as defined in Section 1445 of the Internal Revenue Code of 1986, as amended, and the Income Tax Regulations thereunder.
(d) Except for Cornish & Carey Commercial ("Seller's Broker") and CRESA Partners ("Buyer's Broker"), Seller has not dealt with any real estate broker or finder in connection with the sale of the Property to Buyer or this Agreement.
(e) To Seller's actual knowledge, Seller has not received any written notice of any violation of laws applicable to the Property, including environmental laws, except as disclosed in any Phase I environmental assessment obtained by Buyer or as disclosed to Buyer in writing on or prior to the date of this Agreement.
(f) To Seller's actual knowledge, there is no pending litigation regarding the Property, and Seller has not received any written notice of any threatened litigation regarding the Property.
(g) To Seller's actual knowledge, Seller has delivered or made available to Buyer all written reports or documents in Seller's possession regarding presently existing soils condition of
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the Property or any presently existing hazardous materials on the Property (other than naturally occurring).
(h) To Seller's actual knowledge, there are no material contracts or agreements that will be binding on the Property after the Closing other than the Agreements.
5.2 Buyer. The representations and warranties of Buyer in this section 5.2
----- and in Buyer's Closing Certificate (as hereinafter defined) are a material inducement for Seller to enter into this Agreement. Seller would not sell the Property to Buyer without such representations and warranties of Buyer. Such representations and warranties shall survive the Closing for only one (1) year after the Closing Date, at which time such representations and warranties shall terminate. Buyer represents and warrants to Seller as of the date of this Agreement as follows:
(a) Buyer is a corporation duly incorporated and organized and validly existing and in good standing under the laws of the State of Delaware. Buyer is duly qualified to do business and is in good standing in the State of California. Buyer has full corporate power and authority to enter into this Agreement and to perform this Agreement. The execution, delivery and performance of this Agreement by Buyer have been duly and validly authorized by all necessary action on the part of Buyer and all required consents and approvals have been duly obtained. This Agreement is a legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
(b) Except for Seller's Broker and Buyer's Broker, Buyer has not dealt with any real estate broker or finder in connection with the purchase of the Property from Seller or this Agreement.
ARTICLE 6
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Covenants
---------
6.1 Seller. Seller covenants and agrees with Buyer as follows:
------
(a) Representations. Seller shall use reasonable efforts, in good faith
--------------- and with diligence, to cause all of the representations and warranties made by Seller in section 5.1 hereof to be true and correct on and as of the Closing Date. At the Closing on the Closing Date, Seller shall execute and deliver to Buyer a Seller's Closing Certificate ("Seller's Closing Certificate") in the form of Exhibit G attached hereto, certifying to Buyer that all such representations and warranties are true and correct on and as of the Closing Date, with only such exceptions therein as are necessary to reflect facts or circumstances arising between the date of this Agreement and the Closing Date which would make any such representation or warranty untrue or incorrect on and as of the Closing Date.
(b) Indemnity. Seller shall indemnify and defend Buyer against and hold
--------- Buyer harmless from all claims, demands, liabilities, losses, damages, costs and expenses, including reasonable attorneys' fees and disbursements, that may be suffered or incurred by Buyer if any
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representation or warranty made by Seller in section 5.1 hereof or in Seller's Closing Certificate was untrue or incorrect in any material respect when made or that may be caused by any material breach by Seller of any such representation or warranty.
(c) Broker Commission. If the purchase and sale of the Property is
----------------- completed in accordance with this Agreement, Seller shall pay the commission due Seller's Broker in accordance with the separate written agreement between Seller and Seller's Broker.
(d) Closure of Test Wells. After the Closing Date, Seller shall close the
--------------------- groundwater test wells at the locations shown on Exhibit B attached hereto and designated thereon as "Test Wells." Such closure shall be carried out in compliance with all applicable laws, and shall be completed as promptly as practicable after the Closing Date and in any event within one hundred eighty (180) days after the Closing Date, subject to delays due to Force Majeure.
(e) Closure of Water Wells. After the Closing Date, Seller shall close the
---------------------- irrigation water wells at the locations shown on Exhibit B attached hereto and designated thereon as "Water Wells." Such closure shall be carried out in compliance with all applicable laws, and shall be completed as promptly as practicable after the Closing Date and in any event within one hundred eighty (180) days after the Closing Date, subject to delays due to Force Majeure.
(f) Removal of Contractor Yard Equipment. After the Closing Date, Seller,
------------------------------------ at its expense, remove from the portion of the Real Property designated on Exhibit B as the "Contractor Yard" all personal property of Seller or its contractors. Such removal shall be completed as promptly as practicable thereafter and in any event within one hundred eighty (180) days after the Closing Date, subject to delays due to Force Majeure. From and after the Closing Date until the date that such removal is complete, Seller shall be responsible for monitoring the activities of the contractors on the Contractor Yard.
(g) Access and Indemnity. After the Closing Date, Seller and its agents,
-------------------- employees and contractors shall have a right of access onto the Real Property in order to perform the work contemplated under sections 6.1(d), 6.1(e) and 6.1(f) hereof (the "Access Right"). In addition, until the completion of the work contemplated by section 6.1(f), Seller and its agents, employees and contractors shall have a right of access to and from the Contractor Yard from and over Tucson Road through the gate at the intersection of Tucson Road and Little Road. Seller shall indemnify and defend Buyer against and hold Buyer harmless from all claims, demands, liabilities, losses, damages, costs and expenses, including reasonable attorneys' fees and disbursements, that arise out of or result from the use or misuse of the Access Right by Seller or Seller's employees, agents, operators, licensees or contractors, except that Buyer shall not be indemnified for any such claim, demand, liability, loss, damage, cost or expense that arises out of or results from the negligent or willful act or omission of Buyer or Buyer's employees, agents, operators, licensees or contractors.
6.2 Buyer. Buyer covenants and agrees with Seller as follows:
-----
(a) Representations. Buyer shall use reasonable efforts, in good faith and
--------------- with diligence, to cause all of the representations and warranties made by Buyer in section 5.2 hereof to be true and correct on and as of the Closing Date. At the Closing on the Closing Date, Buyer
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shall execute and deliver to Seller a Buyer's Closing Certificate ("Buyer's Closing Certificate") in the form of Exhibit J attached hereto, certifying to Seller that all such representations and warranties are true and correct on and as of the Closing Date, with only such exceptions therein as are necessary to reflect facts or circumstances arising between the date of this Agreement and the Closing Date which would make any such representation or warranty untrue or incorrect on and as of the Closing Date.
(b) Indemnity. Buyer shall indemnify and defend Seller against and hold
--------- Seller harmless from all claims, demands, liabilities, losses, damages, costs and expenses, including reasonable attorneys' fees and disbursements, that may be suffered or incurred by Seller if any representation or warranty made by Buyer in section 5.2 hereof or in Buyer's Closing Certificate was untrue or incorrect in any material respect when made or that may be caused by any material breach by Buyer of any such representation or warranty.
(c) Broker Commission. If the purchase and sale of the Real Property is
----------------- completed in accordance with this Agreement, Buyer shall pay the commission due Buyer's Broker in accordance with the separate written agreement between Buyer and Buyer's Broker.
(d) Indemnity Against Increased Costs. Buyer agrees that Seller shall not
--------------------------------- be required to pay any costs or expenses arising from or related to Buyer's development or improvement of, or activities on, the Real Property. Buyer shall pay, and shall protect, indemnify and defend Seller from and against any costs, expenses, liabilities or obligations arising from or related to Buyer's development or improvement of the Real Property, including any assessment or improvement district assessments attributable to such development, improvement or activities but excluding any costs Seller voluntarily incurs or that result from Seller's actions. The foregoing indemnity shall be a covenant running with the land and shall be binding on Buyer's successors-in-title to the Real Property until the earlier of (i) twenty (20) years after the date hereof, or (ii) two (2) years after the completion of development of the Real Property under then applicable land use rules. In the event Buyer transfers any or all of its interest in or to the Real Property, Buyer shall cause Buyer's successors- in-title to the Real Property to assume the foregoing indemnity in writing for the benefit of Seller.
6.3 Eminent Domain. If, before the Closing Date, proceedings are commenced
-------------- for the taking by exercise of the power of eminent domain of all or a material part of the Property which, as reasonably determined by Buyer, would render the Property unsuitable for Buyer's intended use, Buyer shall have the right, by giving notice to Seller within thirty (30) days after Seller gives notice of the commencement of such proceedings to Buyer, to terminate this Agreement, in which event this Agreement shall terminate. If, before the Closing Date, proceedings are commenced for the taking by exercise of the power of eminent domain of less than such a material part of the Property, or if Buyer has the right to terminate this Agreement pursuant to the preceding sentence but Buyer does not exercise such right, then this Agreement shall remain in full force and effect and, on the Closing Date, the condemnation award (or, if not theretofore received, the right to receive such award) payable on account of the taking shall be transferred to Buyer. Seller shall give notice to Buyer reasonably promptly after Seller's receiving notice of the commencement of any proceedings for the taking by exercise of the power of eminent domain of all or any part of the Property. If necessary, the Closing Date shall
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be postponed until Seller has given any notice to Buyer required by this section 6.3 and the period of thirty (30) days described in this section 6.3 has expired.
6.4 Utilities Easement Over Real Property. At the Closing, Buyer shall
------------------------------------- grant Seller an easement for underground utilities benefiting the Retained Property over a ten (10) foot wide strip of land along the northwestern boundary of the Real Property. Such easement shall be evidenced by a Utility Easement substantially in the form attached hereto as Exhibit I (the "Utility Easement"), which shall be executed, acknowledged and delivered by Seller and Buyer at the Closing.
6.5 Use of Entrance Road. Seller intends, after the Closing Date, to
-------------------- re-route Manassas Road to run along the entire southeastern boundary of the property to be retained by Seller after sale of the Real Property (the "Retained Property"), which route will be substantially as shown on Exhibit B attached hereto (the "Manassas Extension Project"). Buyer will have no responsibility for the costs of completing the Manassas Extension Project. Buyer shall grant Seller access to the Real Property after the Closing Date to the extent necessary to enable Seller to perform the work involved in the Manassas Extension Project. Until the Manassas Completion Date (as defined below), Seller shall have the exclusive right (to the exclusion of all other persons, including Buyer) to use the road designated as "Existing Entrance Road" on Exhibit B for ingress and egress to and from the Retained Property. Such right shall be evidenced by the "Entrance Road Easement" substantially in the form attached hereto as Exhibit K, which Seller and Buyer shall execute, acknowledge and deliver at the Closing. The term "Manassas Completion Date" shall mean the earlier of (i) the date on which the Manassas Extension Project is completed, as evidenced by Seller's notice thereof to Buyer, or (ii) the date one hundred eighty (180) days after the Closing Date (which latter date shall be extended by the number of days the completion of the Manassas Extension Project is delayed due to Force Majeure).
6.6 Great Oaks Extension. Buyer shall, at its expense, use commercially
-------------------- reasonable efforts to cause to be constructed an extension of Great Oaks Boulevard, as shown on Exhibit B attached hereto provided, however, that Buyer's obligations to construct the extension shall not exceed the requirements of the City of San Jose (the "Great Oaks Extension Project"). The Great Oaks Extension Project will include obtaining all studies and reports required by applicable law or governmental authorities; obtaining all required governmental permits, licenses and approvals; Buyer or the City of San Jose obtaining title to the portions of the route of the extension which lie on property of the Uchiyama family; and constructing the roadbed and related facilities. Buyer shall keep Seller apprised of the progress of the Great Oaks Extension Project. Seller shall cooperate in carrying out the Great Oaks Extension Project, but shall not be required to incur any expense. Buyer shall assure that, upon completion of the Great Oaks Extension Project, Seller shall have a permanent direct right of access over Great Oaks Boulevard to the Retained Property, either by virtue of public dedication or private recorded right-of-way. If the City of San Jose requires that the extension be a private road, (1) Seller shall pay to Buyer fifty thousand dollars ($50,000) in exchange for Buyer's obligation to maintain Great Oaks Boulevard in perpetuity and (2) Buyer and Seller shall enter into an easement agreement substantially on the terms of the White Plains Easement Agreement.
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6.7 Easement over Retained Property. To the extent necessary to enable
------------------------------- Buyer to connect sewer systems on the Real Property to public storm water sewer and/or sanitary sewer facilities, Seller shall grant Buyer an easement for underground pipes over the Retained Property at a location to be agreed between Seller and Buyer. Such easement shall be evidenced by a Sewer Connection Easement substantially in ...
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