<PAGE>   1
                                                                   Exhibit 10.11



                           PURCHASE AND SALE AGREEMENT



                                 By and Between

                           AGILENT TECHNOLOGIES, INC.

                                   ("SELLER")



                                       and



                                BEA SYSTEMS, INC.

                                    ("BUYER")

<PAGE>   2


                                TABLE OF CONTENTS
<TABLE>
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<S>     <C>                                                                    <C>
1.      PURCHASE AND SALE......................................................  1

        1.1    Property........................................................  1
        1.2    Excluded Property...............................................  1

2.      PURCHASE PRICE.........................................................  2

        2.1    Deposit.........................................................  2
        2.2    Interest on Deposit.............................................  2
        2.3    Disposition of Deposit..........................................  2
        2.4    Cash Balance....................................................  2

3.      TITLE..................................................................  2

        3.1    Vesting of Title................................................  2
        3.2    Buyer's Title Insurance.........................................  3
        3.3    Permitted Exceptions............................................  3
        3.4    Covenants, Conditions and Restrictions..........................  4
        3.5    Telecommunications Utility Easement.............................  4

4.      ESCROW.................................................................  4

        4.1    Opening of Escrow...............................................  4
        4.2    Instructions to Title Company...................................  4

5.      CLOSING................................................................  4

        5.1    Closing.........................................................  4
        5.2    Failure to Close................................................  5

6.      DUE DILIGENCE..........................................................  6

        6.1    [Intentionally omitted].........................................  6
        6.2    Available Information...........................................  6
        6.3    Title Review....................................................  6
        6.4    Inspection; Right of Entry......................................  7
        6.5    Buyer's Reports.................................................  8
        6.6    Indemnity.......................................................  9
        6.7    Approval by Buyer...............................................  9

7.      CONDITIONS TO CLOSING.................................................. 10

        7.1    Seller's Conditions............................................. 10
        7.2    Buyer's Conditions.............................................. 10
        7.3    Failure of Conditions........................................... 11
        7.4    Satisfaction of Conditions...................................... 11
</TABLE>

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                               TABLE OF CONTENTS
                                  (CONTINUED)

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8.      DELIVERIES INTO ESCROW................................................. 11

        8.1    Deliveries by Seller............................................ 11
        8.2    Deliveries by Buyer............................................. 12
        8.3    Delivery to Buyer Upon Closing.................................. 12

9.      PRORATIONS; CLOSING COSTS; CREDITS..................................... 12

        9.1    Prorations...................................................... 12
        9.2    Closing Costs................................................... 13
        9.3    Other Expenses.................................................. 14

10.     OPERATION OF PROPERTY PENDING THE CLOSING AND POST-CLOSING OBLIGATIONS. 14

        10.1   Normal Course of Business....................................... 14
        10.2   Further Encumbrances............................................ 14
        10.3   Leasing......................................................... 14
        10.4   New Obligations................................................. 14
        10.5   Construction/Subdivision Obligations............................ 14
        10.6   Tax Parcel Segregation.......................................... 23
        10.7   Relocation of Substation........................................ 23
        10.8   Species of Special Concern...................................... 23
        10.9   Real Property Taxes for Tax Year 2001/2002...................... 23

11.     REPRESENTATIONS AND WARRANTIES......................................... 24

        11.1   No Representations or Warranties by Seller...................... 24
        11.2   Seller's Representations and Warranties......................... 24
        11.3   Buyer's Representations and Warranties.......................... 26
        11.4   Knowledge Defined............................................... 26

12.     INDEMNIFICATION........................................................ 27

        12.1   Indemnification of Buyer........................................ 27
        12.2   Defense of Claims Against Buyer................................. 27
        12.3   Indemnification of Seller....................................... 27
        12.4   Defense of Claims Against Seller................................ 27

13.     CASUALTY OR CONDEMNATION............................................... 28

        13.1   Casualty........................................................ 28
        13.2   Condemnation.................................................... 28

14.     BROKERS................................................................ 28


15.     NOTICES................................................................ 29
</TABLE>

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                               TABLE OF CONTENTS
                                  (CONTINUED)

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16.     LIMITATIONS ON REPRESENTATIONS AND WARRANTIES.......................... 30

        16.1   No Reliance on Documents........................................ 30
        16.2   As-Is Sale: Disclaimers......................................... 30
        16.3   Material Change................................................. 31
        16.4   Survival of Seller's Representations and Warranties............. 32
        16.5   Survival of Limitations......................................... 32

17.     MISCELLANEOUS.......................................................... 32

        17.1   Time............................................................ 32
        17.2   Attorneys' Fees................................................. 32
        17.3   No Waiver....................................................... 32
        17.4   Entire Agreement................................................ 32
        17.5   Survival........................................................ 33
        17.6   Successors and Assigns.......................................... 33
        17.7   Severability.................................................... 33
        17.8   Captions........................................................ 33
        17.9   Exhibits........................................................ 33
        17.10  Relationship of the Parties..................................... 33
        17.11  Governing Law................................................... 33
        17.12  Review by Counsel............................................... 34
        17.13  Counterparts.................................................... 34
        17.14  Filing of Reports............................................... 34
        17.15  1031 Exchange................................................... 34
        17.16  Third Party Beneficiaries....................................... 34
        17.17  Facsimile Signatures............................................ 34

18.     DEFAULT................................................................ 35

        18.1   Liquidated Damages.............................................. 35
        18.2   Default by Seller............................................... 35
</TABLE>


                                     -iii-

<PAGE>   5


                           PURCHASE AND SALE AGREEMENT

        THIS PURCHASE AND SALE AGREEMENT ("AGREEMENT") is made and entered into
as of February 1, 2001 (the "EFFECTIVE DATE") by and between Agilent
Technologies, Inc., a Delaware corporation ("SELLER"), and BEA Systems, Inc., a
Delaware corporation ("BUYER").

                                    RECITALS

        This Agreement is made with respect to the following facts and
circumstances:

        A. Seller owns certain property consisting of approximately forty (40)
acres described in Exhibit 1.1.1 (without representation by Seller as to exact
area) that has been legally subdivided from Seller's adjacent property
("SELLER'S RETAINED PROPERTY") by the recordation of the Final Map (defined
below), and located abutting North First Street in San Jose, Santa Clara County,
California, which property is referred to in this Agreement as the "PROPERTY"
and is more particularly defined below. The Property is shown as Parcel 2 on the
Final Map, and Seller's Retained Property is shown as Parcel 1 on the Final Map.

        B. Subject to the terms and conditions herein, Seller desires to sell
and Buyer desires to purchase the Property.

        NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Seller and Buyer agree as follows:

        1. PURCHASE AND SALE.

            1.1 Property. Subject to the terms and conditions hereof, Seller
hereby agrees to sell, convey and assign to Buyer, and Buyer hereby agrees to
purchase and accept from Seller on the Closing Date (as defined below) the
following (collectively, the "PROPERTY"):

                1.1.1 That certain tract or parcel of land situated in the City
of San Jose, County of Santa Clara, California, which is described on Exhibit
1.1.1 attached hereto, together with any and all rights, privileges and
easements appurtenant thereto, which are owned by Seller (collectively, the
"LAND"); and

                1.1.2 All improvements of every kind and description affixed to
or located in, on, over, or under the Land (all of which are collectively
referred to as the "IMPROVEMENTS").

            1.2 Excluded Property. Notwithstanding anything to the contrary set
forth herein, the Property being conveyed pursuant to this Agreement does not
include (and Seller expressly reserves all rights with respect to) any existing
claims or causes of action with respect to the Property to the extent
attributable to the period prior to the Closing Date including, without
limitation, any tax rebates attributable to the period prior to the Closing and
claims with respect to previous tenants.

<PAGE>   6

        2. PURCHASE PRICE. Buyer shall pay as the purchase price for the
Property ("PURCHASE PRICE") the sum of Two Hundred Ninety-Two Million Eight
Hundred Six Thousand Three Hundred Forty Dollars ($292,806,340) (as it may be
increased pursuant to Section 5.1.2). Buyer and Seller acknowledge that the
amount of the Purchase Price has been calculated as the product of (i) Two
Hundred Six Dollars ($206) multiplied by (ii) One Million Four Hundred
Twenty-One Thousand Three Hundred Ninety (1,421,390), which is the maximum
number of FAR square feet permitted to be developed on the Property pursuant to
the PD Permit (as defined in Section 10.5.1.1). As used herein, "FAR" shall mean
the maximum floor area ratio permitted to be constructed by the PD Permit and
has been defined, calculated and determined in accordance with the standards
used by the City of San Jose (the "CITY") in expressing maximum density for
development of buildings. The Purchase Price shall be paid as follows:

        2.1 Deposit. On or before one (1) business day following the Effective
Date, Buyer shall cause Ten Million Dollars ($10,000,000) (the "DEPOSIT") in
immediately available funds to be delivered into Escrow (as defined below). The
failure of Buyer to timely deliver the Deposit shall be a material default, and
shall entitle Seller, at Seller's sole option and as Seller's sole remedy for
such default, to terminate this Agreement immediately by giving written notice
of such termination to Buyer and the Title Company (as defined below);

        2.2 Interest on Deposit. The Deposit shall be held by the Title Company
as an earnest money deposit towards the Purchase Price. The Deposit shall be
held in Escrow in accordance with the provisions of this Agreement in a
federally insured interest bearing account or other investment suitable for
daily investment reasonably acceptable to Seller and Buyer (and in any event
with any risk of loss for the account of Buyer) with any interest accruing
thereon to be paid or credited, except as otherwise provided in this Agreement,
to Buyer. The term "DEPOSIT" shall include any and all interest then accrued;

        2.3 Disposition of Deposit. At the Closing (as defined below), the
Deposit shall be paid to Seller and shall be applied and credited toward the
payment of the Purchase Price. If Escrow does not close, and this Agreement is
terminated in a manner governed by Sections 7.3 or 13.2, the Deposit will be
disbursed to Buyer as provided in such Sections. If the Escrow does not close
and none of Sections 7.3 or 13.2 applies, the Deposit shall be returned to Buyer
unless the provisions of Section 18.1 are applicable, in which case the
disposition of the Deposit shall be governed by the provisions of Section 18.1;
and

        2.4 Cash Balance. On or before the Closing, Buyer shall pay Seller the
balance of the Purchase Price, net of any prorations and closing costs to be
paid by Seller as provided in this Agreement, by federal wire transfer of
immediately available funds to a bank account(s) designated by Seller in a
written notice to Buyer.

        3. TITLE.

            3.1 Vesting of Title. At Closing, Seller shall convey fee simple
title to the Property to Buyer by execution and delivery of the Deed (as defined
below). Issuance by the Title Company (or


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<PAGE>   7


an unconditional commitment to issue) as of the Closing of the Buyer's Title
Policy (as defined below) shall constitute evidence of delivery of title by
Seller.

            3.2 Buyer's Title Insurance. Buyer's obligation to purchase the
Property shall be conditioned upon the Title Company issuing at Closing to Buyer
a CLTA standard coverage owner's form of title insurance policy (or, if Buyer so
elects pursuant to the next succeeding sentence, an ALTA owner's form of title
insurance policy) in the amount of the Purchase Price insuring that fee simple
title to the Property is vested in Buyer subject only to the Permitted
Exceptions (as defined below) ("BUYER'S TITLE POLICY"). Buyer shall be entitled
to request that the Title Company provide an ALTA title insurance policy and/or
such endorsements to the Buyer's Title Policy as Buyer may reasonably require,
provided that such ALTA policy and/or endorsements shall be at no cost or
additional liability to Seller and the Closing shall not be delayed as a result
of Buyer's request.

            3.3 Permitted Exceptions. As a condition precedent of Buyer's
obligations as provided in Section 7.2.4 but not as a covenant of Seller, Seller
shall convey the Property and Buyer shall accept the Property subject only to
the following matters, which are collectively referred to as the "PERMITTED
EXCEPTIONS":

                3.3.1 all exceptions to title shown in the amended pro forma
owner's policy of title insurance issued by the Title Company and bearing No.
844989 distributed January 29, 2001 (the "TITLE REPORT"), a copy of which is
attached hereto as Exhibit 3.3.1, and all matters shown on the Survey of the
Property dated January 24, 2001, prepared by Nolte Associates, Inc., bearing Job
No. SJ0705 (the "SURVEY").

                3.3.2 the lien of non-delinquent real and personal property
taxes and assessments;

                3.3.3 local, state and federal laws, ordinances or governmental
regulations, including but not limited to, building and zoning laws, ordinances
and regulations, now existing or hereafter in effect with respect to the
Property;

                3.3.4 matters affecting the condition of title created by or
with the written consent of Buyer;

                3.3.5 water rights, and claims of title to water, whether or not
shown by the public records (provided, however, that Seller shall not claim or
reserve any water rights on or with respect to the Property);

                3.3.6 unless Buyer elects to obtain an ALTA policy of title
insurance, discrepancies, conflicts in boundary lines, shortages in area,
encroachments, and any state of facts which inspection of the Property would
disclose and which are not shown by the public records;

                3.3.7 standard printed exclusions generally included in a CLTA
owner's policy (or ALTA owner's policy, as the case may be); and


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<PAGE>   8

                3.3.8 the CC&Rs and easements referred to in Sections 3.4, 3.5
and 10.7 hereof.

            3.4 Covenants, Conditions and Restrictions. At the Closing, Seller
and Buyer shall each execute, deliver to each other, and cause to be recorded
the covenants, conditions and restrictions in the form attached hereto as
Exhibit 3.4 (the "CC&RS"), which shall be recorded concurrently with, but
immediately following, the recordation of the Grant Deed.

            3.5 Telecommunications Utility Easement. At the Closing, Seller and
Buyer shall each execute, deliver to each other, and cause to be recorded the
utility easement in the form attached hereto as Exhibit 3.5 (the
"TELECOMMUNICATIONS UTILITY EASEMENT"), which shall be recorded currently with,
but immediately following, recordation of the Grant Deed and the CC&Rs.

        4. ESCROW.

            4.1 Opening of Escrow. Seller shall deliver a copy of a fully
executed counterpart of this Agreement into escrow ("ESCROW") to be established
at Chicago Title Company, 110 W. Taylor Street, San Jose, California 95110,
Attention: Sharman McKenna ("TITLE COMPANY") on or before one (1) business day
following the Effective Date.

            4.2 Instructions to Title Company. Seller and Buyer shall each be
entitled to submit escrow instructions to the Title Company in connection with
the Closing of the Escrow. Seller and Buyer shall, in addition, execute such
further escrow instructions as the Title Company may reasonably require in
connection with the Closing so long as such instructions are consistent with the
provisions of this Agreement and the escrow instructions of Seller and Buyer. In
the event of any conflict between the terms and conditions of this Agreement and
the provisions of any escrow instructions prepared by Seller, Buyer or the Title
Company, the terms and conditions of this Agreement shall control.

        5. CLOSING.

            5.1 Closing. The purchase and sale of the Property as contemplated
by this Agreement, including but not limited to the delivery of the Deed,
payment of the Purchase Price and receipt thereof by Seller, and the completion
of the other matters required by this Agreement to be done contemporaneously
(the "CLOSING") shall occur at the offices of the Title Company, and be
completed by 5:00 p.m. on February 8, 2001 (the "Required Closing Date"), or
such earlier date approved by both Buyer and Seller. The date on which the
Closing actually occurs shall be referred to as the "CLOSING DATE". Seller and
Buyer shall utilize either a "New York" closing procedure or a "California"
closing procedure, depending upon which procedure will permit the closing to be
completed on February 8, 2001. The parties acknowledge that Seller recorded the
Final Map on January 30, 2001.

                5.1.1 Buyer shall have the right to extend the Required Closing
Date until any business day on or before March 2, 2001, provided that Buyer
strictly complies with all of the following conditions:


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<PAGE>   9

                    5.1.1.1 No later than 5:00 p.m., California time, on the
second (2nd) business day prior to the then-scheduled Required Closing Date,
Buyer shall give, and both Seller and the Title Company shall actually receive,
Buyer's written notice (an "EXTENSION NOTICE") specifying the business day on
which the Closing will occur, which shall then become the new Required Closing
Date; and

                    5.1.1.2 Concurrently with Buyer's delivery of an Extension
Notice, Buyer shall deposit an Additional Deposit (as hereinafter defined) into
the Escrow in immediately-available funds. As used herein, an "ADDITIONAL
DEPOSIT" shall equal the product of Sixty-Four Thousand Dollars ($64,000)
multiplied by the number of calendar days that the Required Closing Date is
extended by an Extension Notice. Upon Buyer's deposit of any Additional Deposit
into the Escrow, such Additional Deposit shall immediately and automatically
become a part of the Deposit, and all references in this Agreement to the
"Deposit" shall thereafter include such Additional Deposit for all purposes,
including, without limitation, for purposes of calculating liquidated damages
under Section 18.1 of this Agreement.

                5.1.2 Immediately upon Buyer's giving any Extension Notice, the
Purchase Price shall automatically be increased by an amount calculated as
follows: Sixty-Four Thousand Dollars ($64,000) for each calendar day that such
Extension Notice extends the Required Closing Date from and including February
9, 2001, through and including February 15, 2001, and One Hundred Sixty-Four
Thousand Dollars ($164,000) for each calendar day that such Extension Notice
extends the Required Closing Date from and including February 16, 2001, through
and including March 2, 2001.

                5.1.3 Buyer shall not have the right to give more than three (3)
Extension Notices. Any purported Extension Notice given by Buyer after Buyer's
third Extension Notice shall be null and void.

                5.1.4 In addition to the manners provided for giving notices
under Section 15 of this Agreement, (i) Buyer may give Extension Notices by
facsimile transmission to Seller at 240/359-7444, attention James A. Schnur,
with copies to 650/752-5742, attention Roxanne R. Rapson, and to 650/493-6811,
attention Bradford C. O'Brien, and to the Title Company at 408/282-1404,
attention Sharman McKenna, and (ii) Seller may give Buyer any notices with
respect to any proposed extension by facsimile transmission to Buyer at
408/570-8923, attention Frank Jesse, with a copy to 415/391-8269, attention
Charles H. Seaman. Any notices given by facsimile transmission pursuant to this
Section 5.1.4 shall be deemed effectively given upon transmission with
confirmation of the addressees' receipt.

            5.2 Failure to Close. If the Closing does not occur on or before the
Required Closing Date (as such date may be extended pursuant to the express
provisions of this Agreement), then in the absence of a written agreement
between the parties to extend the Closing Date, either party hereto (so long as
such party is not then in default pursuant to this Agreement), without waiving
any rights it may otherwise have pursuant to the Agreement (including, without
limitation, Seller's right to collect liquidated damages for Buyer's default
pursuant to Section 18.1), may elect to terminate this Agreement by giving
written notice of such termination to the other and to the Title Company.


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        6. DUE DILIGENCE.

            6.1 [Intentionally omitted. ]

            6.2 Available Information. Buyer acknowledges that Seller has
delivered or caused to be delivered to Buyer copies of all of the documents and
materials relating to the Property listed on Exhibit 6.2 attached hereto
(collectively, the "DUE DILIGENCE MATERIALS"). Seller has not undertaken any
independent investigation as to the truth or accuracy of the documents and
materials to be delivered and is providing same solely as an accommodation to
Buyer. Buyer and its representatives shall hold in strictest confidence all data
and information obtained with respect to Seller or the Property whether obtained
before or after the execution and delivery of this Agreement, and shall not
disclose the same to others; provided, however, that it is understood and agreed
that Buyer may disclose such data and information (i) to the employees, lenders,
investors, consultants, appraisers, accountants and attorneys of Buyer provided
that such persons agree to treat such data and information confidentially and
(ii) to the extent such data and information is generally known to the public or
discoverable through a search of the public records. Further, data and
information obtained by Buyer with respect to Seller or the Property may be
disclosed to the extent required by applicable law including, without
limitation, as a response to service of process or subpoena or pursuant to
public reporting requirements applicable to Buyer by reason of its status as a
publicly traded company, and shall be further subject to disclosure in
connection with any litigation between Seller and Buyer. In the event this
Agreement is terminated or Buyer fails to perform hereunder, Buyer shall
promptly return to Seller any statements, documents, schedules, exhibits and
other written information obtained from Seller in connection with this Agreement
or the transaction contemplated herein. It is understood and agreed that, with
respect to any provision of this Agreement which refers to the termination of
this Agreement and the return of the Deposit to Buyer, Twenty-Five Thousand
Dollars ($25,000) of the Deposit shall not be returned to Buyer unless and until
Buyer has fulfilled its obligation to return to Seller the materials described
in the preceding sentence and the Buyer's Reports in accordance with Section
6.5. The provisions of this Section 6.2 shall survive Closing or any termination
of this Agreement, provided that following the Closing, Buyer shall be entitled
to employ all data and information with respect to the Property as reasonably
required in connection with the ownership and operation of the Property.
Disclosure by Buyer in addition to that allowed above pursuant to provisions of
this Section 6.2 will be allowed upon the prior consent of Seller, which consent
shall not be unreasonably withheld.

            6.3 Title Review. Buyer acknowledges that, prior to the Effective
Date, Buyer has had a full and complete opportunity to examine and review all
matters with respect to title to the Property and all matters that would be
disclosed by an accurate survey of the Property. Accordingly, subject only to
Section 6.3.3, Buyer waives any objection that Buyer has or may have to any such
title and survey matters. Buyer acknowledges that Seller's sale and conveyance
of the Property to Buyer will be subject to, and Buyer hereby approves, all
Permitted Exceptions.

                6.3.1 Title Material. As part of the Due Diligence Materials,
Seller has provided to Buyer a survey of the Property as part of a survey of the
adjacent land owned by Seller ("SELLER'S SURVEY"). As set forth above, Seller
has not undertaken any independent investigation as


                                      -6-
<PAGE>   11

to the accuracy of Seller's Survey and has provided the same solely as an
accommodation to Buyer. As a further accommodation to Buyer, and without
limiting the disclaimers set forth above with respect thereto, Seller has caused
the engineering company that prepared Seller's Survey to add Buyer and such
other entities reasonably requested by Buyer to the certification on Seller's
Survey. Buyer shall be solely responsible for all costs associated with such
additional certification. Buyer acknowledges that Buyer has elected not to
obtain a separate survey of the Property and has instead satisfied itself as to
the completeness and accuracy of the Seller's Survey.

                6.3.2 [Intentionally omitted.]

                6.3.3 Subsequent Title Defects. Buyer may, at or prior to
Closing, notify Seller in writing (the "SUBSEQUENT TITLE DEFECTS NOTICE") of any
objection(s) to title exceptions (a) raised by the Title Company between the
Effective Date and the Closing and (b) not disclosed by the Title Company or the
Survey or otherwise known to Buyer prior to the Effective Date, provided that
Buyer must notify Seller of such objection(s) to title within two (2) business
days of being made aware of the existence of such exception. If Buyer gives a
Subsequent Title Defects Notice to Seller, Seller shall have two (2) business
days after receipt of the Subsequent Title Defects Notice to notify Buyer (a)
that Seller will remove such objectionable exceptions from title on or before
the Closing, provided that Seller may extend the Closing for such period as
shall be required to effect such cure, but not beyond ten (10) days; or (b) that
Seller elects not to cause such exceptions to be removed. If Seller fails to
timely give such notice to Buyer, Seller shall have been deemed to have given
notice to Buyer under clause (b). Seller shall have no obligation to remove any
title exceptions to which Buyer objects; provided however, that Seller shall
remove, as of the Closing, all liens evidencing any deed of trust (and related
documents) securing financing, all mechanics' liens arising under Seller and all
judgment liens. The procurement by Seller of a commitment of the Title Company
for Buyer's Title Policy or an endorsement thereto insuring Buyer against any
title exception which was disapproved pursuant to this Section 6.3.3 shall be
deemed a cure by Seller of such disapproval. If Seller gives or is deemed to
have given notice under clause (b) above, Buyer shall have two (2) business days
from the date on which such notice to Buyer is given in which to notify Seller
that Buyer will nevertheless proceed with the purchase and take title to the
Property subject to such exceptions or that Buyer will terminate this Agreement.
If Buyer fails to timely give such notice, Buyer shall be deemed to have elected
to proceed with the purchase and take title to the Property subject to such
exceptions. If this Agreement is terminated pursuant to the foregoing provisions
of this Section 6.3.3, then neither party shall have any further rights or
obligations hereunder (except with respect to those matters expressly set forth
to survive such termination), the Deposit shall be returned to Buyer and each
party shall bear its own costs incurred hereunder.

            6.4 Inspection; Right of Entry. Buyer acknowledges that (i) Buyer
and Buyer's agents, contractors, engineers, consultants, employees and other
representatives (collectively, "BUYER'S REPRESENTATIVES") have had the right,
prior to the Effective Date and subject to the terms and conditions of Section
6.6 below, to enter the Property to inspect the same (including the performance
of environmental audits of the Property in accordance with the terms of Section
6.4.1 below), and to conduct and carry out any and tests and studies as Buyer
has deemed appropriate in connection with Buyer's acquisition of the Property,
and (ii) Buyer has had a full and complete


                                      -7-
<PAGE>   12

opportunity to satisfy itself with respect to, and Buyer has approved, all
matters relating to the Property and all matters relevant to its use, including,
without limitation, the condition of soils and sub-surfaces and the status of
all zoning, permitting, and other entitlements relevant to the use or
contemplated use of the Property. From and after the Effective Date, Buyer shall
have no further right to enter upon the Property or to conduct any further
inspections, tests, or studies regarding the Property.

                6.4.1 Environmental Testing. Without limiting the generality of
the foregoing, Buyer acknowledges that Buyer has had the right, prior to the
Effective Date, to conduct (or have conducted on its behalf by an environmental
auditor) environmental audits of the Property, subject to the terms and
conditions of this section and Section 6.6 below. Buyer has elected not to
conduct any such environmental audit of the Property. From and after the
Effective Date, Buyer shall have no further right to conduct environmental
audits or inspections of the Property. All environmental studies, evaluations,
audits and surveys shall be collectively referred to herein as "ENVIRONMENTAL
SURVEYS".

                6.4.2 Western Burrowing Owls. Buyer acknowledges that, as
described more fully in Section 10.9 below, (a) there may be present on the
Property Owls (as defined below), (b) earlier this year, Seller conducted a
survey of the location of the Owls on the Property at that time, a copy of which
has been provided by Seller to Buyer as part of the Due Diligence Materials, (c)
Seller has entered into a Mitigation Agreement (as defined below) with respect
to the Owls, a copy of which is attached hereto as Exhibit 10.9, (d) the
Mitigation Agreement contains certain restrictions on the use of the Property to
protect the Owls, including restrictions on evicting Owls from their burrows and
the obligation to create buffer zones within which no activity is permitted of
(i) 75 meters (250 feet) in radius between activities and Owls between February
1 and August 31 and (ii) 50 meters (165 feet) in radius between activities and
Owls between September 1 through January 31. Buyer shall not do anything, and
shall prevent Buyer's Representatives from doing anything, that might disturb
the Owls or their burrows or otherwise violate the terms of the Mitigation
Agreement. In particular, Buyer shall observe, and cause Buyer's Representatives
to observe, the buffer zones described above and the other terms set forth in
Section 3 of the Mitigation Agreement.

                6.4.3 [Intentionally omitted]

                6.4.4 [Intentionally omitted]

            6.5 Buyer's Reports. If the purchase and sale described in this
Agreement fails to close for any reason other than Seller's material breach of
this Agreement, then all studies, surveys (including, without limitation, the
Survey), if any, reports, test results and analyses concerning the Property
prepared by, for or on behalf of Buyer in connection with the Property
(collectively, "BUYER'S REPORTS") shall at the option of Seller, immediately be
delivered and assigned, to the extent assignable, to Seller free and clear of
all claims and at no cost, expense or liability to Seller. Buyer shall not be
required to deliver to Seller internally prepared reports or analyses concerning
the valuation or potential performance of the Property, nor shall Buyer be
required to deliver to Seller


                                      -8-
<PAGE>   13

any document which is privileged or is otherwise legally protected from
disclosure. Any Buyer's Reports delivered to Seller at Seller's request pursuant
to this Section 6.5 shall be delivered without representation or warranty, nor
shall Seller assert any warranty or rights against the consultants of Buyer who
have prepared such Buyer's Reports. Buyer shall not disclose or permit Buyer's
Representatives to disclose to any third party, other than Buyer's consultants,
agents and attorneys associated with the applicable investigation of the
Property and other than as may be required by applicable law, the results of any
of Buyer's inspections or testing of the Property. Buyer shall, in addition, be
entitled to disclose the results of Buyer's inspections or testing to investors
and potential lenders with respect to the Property and shall further be entitled
to disclose such information as required by applicable law including, without
limitation, as required by service of process or subpoena, and in connection
with any litigation between Seller and Buyer. Following the Closing, Buyer shall
further be entitled to use and disclose such information as reasonably required
in connection with its ownership and operation of the Property. Prior to
performing any inspections or testing of the Property, Buyer shall obtain any
required permits and authorizations and shall pay all applicable fees required
by any public body or agency in connection therewith.

            6.6 Indemnity. Buyer shall indemnify, protect, defend by counsel
reasonably acceptable to Seller, and hold Seller harmless from and against any
and all costs, expenses, claims, demands, liabilities, damages, losses or liens
(including, without limitation, mechanics' liens), including reasonable
attorneys' fees, arising from or in any fashion related to the entry by Buyer or
Buyer's Representatives on the Property or the performance by Buyer or Buyer's
Representatives of any testing or investigations of the Property except with
respect to any loss or liability incurred by Seller resulting from the mere
discovery by Buyer or Buyer's Representatives of the presence of hazardous
materials at the Property or the existence of other defects with respect to the
Property. Without limiting the scope or generality of the foregoing indemnity,
Buyer shall not permit any mechanics', materialmen's, or other lien against all
or any part of the Property to exist as the result of any activity by Buyer or
Buyer's Representatives undertaken in connection with the Property. If any such
lien shall be filed against the Property or any portion of the Property, Buyer
shall cause the lien to be discharged within five (5) business days after the
filing thereof. The provisions of this Section 6.6 shall survive the Closing and
delivery of the Deed and shall further survive any earlier termination of this
Agreement.

            6.7 Approval by Buyer. Buyer acknowledges that Buyer has had the
right to review, in its sole, absolute and subjective discretion, and hereby
approves, as of the Effective Date all aspects of the Property, including but
not limited to, (i) the Due Diligence Materials, (ii) the physical and
environmental condition of the Property, including, without limitation, the
condition of the Improvements, the condition of the soil at the Property, the
condition of the ground water at the Property, and the presence or absence of
any hazardous materials at the Property, (iii) the financial condition of the
Property, including, without limitation, the feasibility, convertibility,
desirability and suitability of the Property for Buyer's intended use and
purposes, (iv) the legal condition of the Property, including, without
limitation, the Property's compliance or non-compliance with all statutes,
ordinances, codes, regulations, decrees, orders and laws applicable to the
Property, (v) the existence or non-existence of any governmental or
quasi-governmental entitlements, if any, affecting the Property or any portion
of the Property, (vi) any dimensions or specifications of the Property or


                                      -9-
<PAGE>   14

any part thereof, (vii) the zoning, building and land use restrictions
applicable to the Property or any portion thereof, and (vii) all other matters
which Buyer has deemed relevant to its purchase of the Property. Accordingly,
Buyer hereby waives any objection to any of the foregoing matters and
acknowledges that Buyer shall have no right to terminate this Agreement, or to
require that Seller or any other party take any action with respect to any such
matters, except to the extent expressly provided in this Agreement.

        7. CONDITIONS TO CLOSING.

            7.1 Seller's Conditions. The obligation of Seller to sell and convey
the Property pursuant to this Agreement is subject to the satisfaction on or
before the Closing Date (or such earlier date as is specifically set forth in
this Agreement) of all of the following conditions precedent, which conditions
are for the benefit of Seller only and the satisfaction of which may be waived
only in writing by Seller:

                7.1.1 Buyer's Deliveries. Delivery and execution by Buyer of all
monies, items and instruments required to be delivered by Buyer pursuant to this
Agreement;

                7.1.2 Buyer's Representations. Buyer's warranties and
representations set forth herein shall be true and correct in all material
respects as of the Closing Date;

                7.1.3 Buyer's Performance. Buyer shall have performed each and
every agreement to be performed by Buyer pursuant to this Agreement;

                7.1.4 [Intentionally omitted];

                7.1.5 [Intentionally omitted].

            7.2 Buyer's Conditions. The obligation of Buyer to acquire the
Property pursuant to this Agreement is subject to the satisfaction on or before
the Closing Date (or such earlier date as is specifically set forth in this
Agreement) of all of the following conditions precedent which conditions are for
the benefit of Buyer only and the satisfaction of which may be waived only in
writing by Buyer:

                7.2.1 Seller's Deliveries. Delivery and execution by Seller of
all instruments and other items required to be delivered by Seller pursuant to
this Agreement;

                7.2.2 Seller's Representations. Seller's warranties and
representations set forth herein shall be true and correct in all material
respects as of the Closing Date;

                7.2.3 Seller's Performance. Seller shall have performed each and
every agreement to be performed by Seller pursuant to this Agreement;


                                      -10-
<PAGE>   15

                7.2.4 Buyer's Title Policy. As of the Closing, the Title Company
shall have issued or shall have committed to issue, upon the sole condition of
the payment of its regularly scheduled premium, the Buyer's Title Policy;

                7.2.5 [Intentionally omitted];

                7.2.6 [Intentionally omitted].

            7.3 Failure of Conditions. If any of the conditions set forth in
Sections 7.1 or 7.2 are not timely satisfied or waived, for any reason other
than the default of Buyer or Seller under this Agreement, then this Agreement
and the rights and obligations of Buyer and Seller shall terminate and be of no
further force or effect except as to those matters as specifically stated in
this Agreement to survive termination, in which case the Title Company is hereby
instructed to return promptly to the party which placed such items into Escrow
all funds (including the Deposit which is to be promptly returned to Buyer) and
documents which are held by the Title Company on the date of termination.

            7.4 Satisfaction of Conditions. The occurrence of the Closing shall
constitute satisfaction of conditions set forth in Sections 7.1 and 7.2 not
otherwise specifically satisfied or waived by Buyer or Seller.

        8. DELIVERIES INTO ESCROW.

            8.1 Deliveries by Seller. At the Closing, Seller shall deliver or
cause to be delivered to Buyer the following documents duly executed and
acknowledged where appropriate:

                8.1.1 Deed. A grant deed (the "DEED") in the form attached
hereto as Exhibit 8.1.1 conveying the Property to Buyer (or its permitted
assignee) as provided in this Agreement which Deed is to be duly executed and
acknowledged by Seller;

                8.1.2 FIRPTA. A certificate of non-foreign status to confirm
that Buyer is not required to withhold part of the Purchase Price pursuant to
Section 1445 of the Internal Revenue Code of 1986, as amended which is to be
duly executed by Seller;

                8.1.3 Form 590. Franchise Tax Board Form (590) which is to be
duly executed by Seller;

                8.1.4 Seller's Authority. Such proof of Seller's authority and
authorization to enter into this Agreement and consummate the transaction
contemplated hereby and such proof of the power and authority of the
individual(s) executing and/or delivering any instruments, documents or
certificates on behalf of Seller to act for and bind Seller as may be reasonably
required by the Title Company;

                8.1.5 CC&Rs. The CC&Rs in the form attached hereto as Exhibit
3.4, which CC&Rs are to be duly executed and acknowledged by Seller;


                                      -11-
<PAGE>   16

                8.1.6 Easements. The Telecommunications Utility Easement and the
Substation Utility Easement (defined below) in the forms attached hereto as
Exhibits 3.5 and 10.7, which easements are to be duly executed and acknowledged
by Seller; and

                8.1.7 Other Documents. Such other documents as may be reasonably
necessary and appropriate to complete the Closing of the transaction
contemplated herein, including, without limitation, an owner's affidavit, if
required by the Title Company to issue to Buyer or its permitted assignee an
ALTA owner's title insurance policy.

            8.2 Deliveries by Buyer. At the Closing, Buyer shall deliver or
cause to be delivered to Seller the following funds and documents duly executed
and acknowledged where appropriate:

                8.2.1 Cash. The cash portion of the Purchase Price and such
additional sums as are necessary to pay the Buyer's share of closing costs,
prorations and any fees as more particularly set forth in Section 9 below;

                8.2.2 [Intentionally omitted];

                8.2.3 Buyer's Authority. Such proof of Buyer's authority and
authorization to enter into this Agreement and consummate the transaction
contemplated by this Agreement, and such proof of the power and authority of the
individual(s) executing and/or delivering any instruments, documents or
certificates on behalf of Buyer to act for and bind Buyer as may be reasonably
required by the Title Company or Seller;

                8.2.4 CC&Rs. The CC&Rs in the form attached hereto as Exhibit
3.4, which CC&Rs are to be duly executed and acknowledged by Buyer;

                8.2.5 Easements. The Telecommunications Utility Easement and the
Substation Utility Easement in the forms attached hereto as Exhibits 3.5 and
10.7, which easements are to be duly executed and acknowledged by Buyer;

                8.2.6 [Intentionally omitted]; and

                8.2.7 Other Documents. Such other documents as may be reasonably
necessary and appropriate to complete the Closing of the transaction
contemplated herein.

            8.3 Delivery to Buyer Upon Closing. Seller shall deliver possession
of the Property to Buyer upon the Closing.

        9. PRORATIONS; CLOSING COSTS; CREDITS.

            9.1 Prorations.

                9.1.1 Taxes and Assessments. All nondelinquent real estate taxes
on the Property shall be prorated based on the actual current tax bill as of
12:01 a.m. on the Closing Date with Seller responsible for all such taxes
attributable to the period prior to such date and time and


                                      -12-
<PAGE>   17

Buyer responsible for all such taxes attributable to the period following such
date and time. If after the Closing, supplemental real estate taxes are assessed
against the Property by reason of any event occurring prior to the Closing Date,
Buyer and Seller shall adjust the proration of the real estate taxes following
the Closing. Buyer acknowledges that the Property has not yet been reassessed as
a result of the transfer of title to the Property to Seller in November 1999.
Accordingly, Seller anticipates that there will be a supplemental assessment
related to the period between the transfer of title to the Property to Seller
and the Closing Date. Seller shall be responsible for the payment of such
supplemental taxes as set forth in the second sentence of this section. Any
delinquent taxes on the Property shall be paid at the Closing from funds
accruing to Seller. Any current installments with respect to assessments on the
Property shall be prorated through Escrow as of 12:01 a.m. on the Closing Date
and Seller shall have no obligation to pay any amount with respect to any such
assessments other than the prorated current installment. Any refund in
connection with real estate taxes relating to the Property attributable to the
period prior to the Closing Date shall be paid to Seller.

                9.1.2 Calculation of Prorations. All prorations shall be made on
the basis of the actual number of days of the month which have elapsed as of
12:01 a.m. on the Closing Date provided that the cash portion of the Purchase
Price is received by Seller's depository bank in time to credit to Seller's
account on the Closing Date. If the cash portion of the Purchase Price is not so
received by Seller's depository bank on the Closing Date, then the day of
Closing shall belong to Seller and such proration shall be made as of the end of
the day that is the Closing Date.

                9.1.3 Proforma Closing Statement. Buyer and Seller shall
reasonably cooperate to produce at least one (1) business day prior to the
Closing Date, a schedule of prorations in accordance with the provisions of this
Agreement which is as complete and accurate as is then reasonably possible. All
prorations which can be reasonably estimated as of the Closing Date shall be
made on the Closing Date. All other prorations and any adjustments to the
initial estimated prorations, shall be made by Buyer and Seller within thirty
(30) days following the Closing or such later time as may be reasonably
required, in the exercise of due diligence to obtain the necessary information.
Any net credit due one party from the other as the result of such post-Closing
prorations and adjustments shall be paid to the other in cash immediately upon
the parties' written agreement to a final schedule of post-Closing adjustments
and prorations. The provisions of Section 9.1 shall survive the Closing and the
recordation of the Deed.

            9.2 Closing Costs.

                9.2.1 Seller's Costs. Seller shall pay (i) the premium for the
standard coverage CLTA portion of the Buyer's Title Policy; (ii) fifty percent
(50%) of all documentary and transfer taxes; (iii) fifty percent (50%) of all
escrow fees, costs and recording costs; and (iv) its own attorneys' fees.

                9.2.2 Buyer's Costs. Buyer shall pay (i) fifty percent (50%) of
all escrow fees, costs and recording costs; (ii) the incremental premium for the
ALTA portion of Buyer's Title Policy, if applicable, and the premium for any
endorsements; (iii) the premium for the Buyer's


                                      -13-
<PAGE>   18

lender's title policy, if any; (iv) fifty percent (50%) of all documentary and
transfer taxes; (v) the cost of the Survey, if applicable; and (vi) its own
attorneys' fees.

            9.3 Other Expenses. Buyer and Seller shall each pay all legal and
professional fees and fees of other consultants incurred by Buyer and Seller,
respectively.

        10. OPERATION OF PROPERTY PENDING THE CLOSING AND POST-CLOSING
OBLIGATIONS. Following the Effective Date and pending the Closing, the Seller
shall operate the Property in accordance with the following:

            10.1 Normal Course of Business. Seller shall use commercially
reasonable efforts to continue to operate, manage and maintain the Property in
such condition so that the Property shall be in substantially the same condition
as of the Closing Date as it is as of the Effective Date, reasonable wear and
tear and casualty excepted; provided, however, Seller shall not be required to
perform any capital repairs or improvements. Seller shall not make any material
alterations to the Property, except as may be set forth expressly in this
Section 10, without the prior written approval of Buyer, which approval shall
not be unreasonably withheld or delayed.

            10.2 Further Encumbrances. Except as set forth in Sections 10.5 and
10.8, Seller shall not execute any documents or otherwise take any action which
will have the result of further encumbering the Property in any fashion without
the prior consent of Buyer, which consent shall not be unreasonably withheld or
delayed.

            10.3 Leasing. Seller shall not enter into any new lease without the
prior consent of Buyer, which consent may be withheld in Buyer's sole
discretion.

            10.4 New Obligations. Except as set forth in Sections 10.5 and 10.9,
without the prior written consent of Buyer, which consent shall not be
unreasonably withheld or delayed, Seller shall not enter into any maintenance
contract, service contract or any other contract affecting or relating to the
Property or any portion thereof which cannot be canceled upon thirty (30) days
(or less) prior written notice.

            10.5 Construction/Subdivision Obligations.

                10.5.1 Entitlement Process. Buyer acknowledges that (a) the
Property has been subdivided from Seller's Retained Property, (b) Seller has
submitted to the City applications dated August 11, 2000 (as amended most
recently by submissions on November 21, 2000 and December 7, 2000) for a PD
Permit and a vesting tentative subdivision map to subdivide the Property into
five (5) parcels (the "ORIGINAL APPLICATION"). In order to cause a subdivision
creating the Property as a separate legal parcel to be completed by January 30,
2001 so that the transactions described by this Agreement can be closed by
February 8, 2001, Seller has submitted to the City amendments to the Original
Application (the "AMENDED APPLICATION"), which request approval of a vesting
parcel map creating two separate legal parcels consisting of the Property and
Seller's Retained Property. On January 17, 2001, the City approved the Amended
Application, and thereby approved the vesting tentative parcel map and PD Permit
described in the Amended Application.


                                      -14-
<PAGE>   19

The parties agree as follows with respect to the land use entitlements for which
application has been made by Seller, and the entitlements that are issued in
response thereto:

                    10.5.1.1 As used herein, the following terms shall have the
following meanings: (i) the term "TENTATIVE MAP PERMIT" (or "TMP") shall have
the meaning ascribed to it by Exhibit 10.5.1, and a true copy of the TMP is
attached as Exhibit 10.5.1.1; (ii) the term "TENTATIVE MAP" (or "TENTATIVE
PARCEL MAP") shall mean the Tentative Vesting Parcel Map approved by the City in
connection with the approval of the TMP on or about January 17 2001; (iii) the
term "FINAL MAP" shall mean the final Parcel Map recorded January 30, 2001, in
the Official Records of Santa Clara County, California, at Book 736 of Maps, at
pages 30, 31 and 21, to implement the Tentative Map and the TMP; and (iv) the
term "PD PERMIT" is defined in Exhibit 10.5.1, and a true copy is attached as
Exhibit 10.5.1.2.

                    10.5.1.2 Seller shall have exclusive and complete power and
authority to take all action necessary to implement the Permit Required
Improvements (as that term is defined in Section 10.5.2.1) imposed in connection
with or authorized by the PD Permit, the TMP, and the Final Map, including the
negotiation and execution of subdivision agreements, obtaining bonds, and the
preparation and development of design documents for improvements that must be
constructed to implement such Permit Required Improvements. Buyer shall have the
right to reasonably approve any material change to the Subdivision Agreement to
which Seller is a party (subject to Seller's right to obtain extensions of time
for performance pursuant to Section 10.5.2.3) and to any subsequent subdivision
or improvement agreement with the City, which relates to any other Permit
Required Improvements.

                    10.5.1.3 The PD Permit, the TMP, the Final Map, and the
Permit Required Improvements shall not be legally challenged or contested,
changed, modified, or waived without the prior written consent of (i) Seller,
which Seller may withhold in its sole discretion (as to changes, modifications
or waivers prior to the Closing) and (ii) Seller and Buyer, which either party
may withhold in its sole discretion (as to changes, modifications or waivers
after Closing). Notwithstanding the foregoing, upon the full and complete
performance of all of the Permit Required Improvements by Seller and Seller's
other performance of all of its obligations under this Section 10.5, the
restrictions set forth in this Section 10.5.1.3 shall terminate.

            10.5.1.4 Seller has caused or will cause Nolte Associates, Inc.
("Nolte") to submit to the City plans for the Permit Required Improvements and
Component Drive. To the extent the plans submitted or to be submitted are
changed or supplemented during the City approval process, Seller shall cause
Buyer to receive design documents generated by the City or by Nolte during the
plan development process so that Buyer has the opportunity to review and comment
upon the development of the plans for such improvements. During this plan
development process, Buyer may propose changes to plans, and Seller shall use
reasonable efforts to incorporate changes requested by Buyer in such plans,
subject to the following: (i) any change requested by Buyer must be done at a
point in time when it may be implemented without materially delaying the plan
development and approval process; (ii) any change proposed by Buyer may not
materially change the alignment, configuration, or location of any improvements,
and must be consistent with the


                                      -15-
<PAGE>   20

requirements of the Final Map, the TMP, and the PD Permit; and (iii) if any
change requested by Buyer has an impact on the cost or schedule to complete the
improvements, then Seller is only obligated to incorporate the requested change
if Buyer agrees to pay any additional cost resulting from the proposed change
and so long as Buyer agrees that Seller shall have such additional time as is
needed to incorporate the change and the change may be completed within the
schedule for performance required by the City. Seller shall have the right to
make changes to such plans so long as such changes (i) are consistent with City
requirements for such improvements and are consistent with the PD Permit, the
TMP, and the Final Map, and (ii) are not materially inconsistent or materially
different in scope or quality than the improvements described by the plans
prepared by Nolte and submitted to the City for such improvements prior to the
Effective Date of this Agreement.

                10.5.2 Implementation of Permit Conditions. Regardless of cost,
Seller shall implement (including design, construction, and completion), and pay
for costs and expenses incurred or which must be paid for, all Permit Required
Improvements.

                    10.5.2.1 As used herein, the term "PERMIT REQUIRED
Improvements" shall mean all off-site improvements (such as traffic mitigation
measures), in-tract improvements (such as public streets, private roads,
underground utilities, storm drainage and sanitary sewer lines, and
signalization), and dedications of Seller's Retained Property, and payment of
fees that are required, imposed or authorized by the City that are listed as
"Permit Required Improvements" on Exhibit 10.5.1, and the installation of
Component Drive in accordance with the TMP, the Final Map, and the PD Permit.

                    10.5.2.2 The PD Permit authorizes the construction of a
private roadway within the Property known as Component Drive. Seller shall at
its cost install Component Drive in accordance with the design permitted by the
PD Permit and as described in the Original Application. Seller shall be
obligated to install landscaping (but not street trees) and irrigation systems
related to Component Drive. The following subsections (a) through (g) shall
govern Component Drive:

                    (a) Buyer shall cooperate with Seller to give Seller (and
its agents, employees, and contractors) such rights of access as are necessary
for the construction of Component Drive (including land for staging, storage,
and temporary locations for fill material or soil to be relocated or removed
from the site as a result of grading). To the extent Buyer is constructing
improvements at the same time Component Drive is being installed, the projects
of Buyer shall be coordinated with Seller's construction of Component Drive so
that interference with either is minimized, and Seller is able to complete its
construction obligations in an orderly and efficient manner and within the time
frames required by this Agreement.

                    (b) In connection with its entry on the Property to
construct Component Drive, Seller shall keep the Property free and clear of any
mechanic's liens, materialmen's liens or claims arising out of Seller's
activities on the Property in connection with such construction. All work done
by Seller in connection with the construction of Component Drive shall be at
Seller's sole cost and expense, shall be done in a workmanlike manner in
accordance with all


                                      -16-
<PAGE>   21

applicable codes, statutes, ordinances, rules, regulations and laws. Seller
shall be solely responsible for the health and safety of any of its employees,
agents, or contractors who enter the Property pursuant to this Section.

                    (c) Seller shall indemnify, protect, defend by counsel
reasonably acceptable to Buyer, and hold Buyer harmless from and against any and
all costs, expenses, claims, demands, liabilities, damages, losses or liens
(including, without limitation, mechanic's liens), including reasonable
attorneys' fees, arising from or in any fashion related to the entry by Seller
or its Representatives on the Property pursuant to this Section.

                    (d) At all times during the construction of Component Drive
or while any of Seller's Representatives are on the Property for such purpose
pursuant to this Section, Seller shall purchase and maintain and cause Seller's
Representatives to purchase and maintain (a) worker's compensation and
occupational disease insurance in statutory minimum amounts, and (b) commercial
general liability and auto liability insurance with a combined single limit of
not less than One Million Dollars ($1,000,000), per occurrence, for bodily
injury, death, property damage, completed operations for at least one year after
completion of Seller's construction of Component Drive, auto and auto
non-ownership, and blanket contractual liability. This liability insurance shall
name Buyer as an additional insured and be issued by an insurance company
reasonably approved by Buyer. Seller shall be responsible for and take all
necessary safety and security precautions relating to the location and
identification of underground utilities that may be affected by the construction
of Component Drive. In this regard, Seller shall promptly repair or have
repaired any damage to such utility services caused by the action of Seller or
Seller's Representatives.

                    (e) As soon as Component Drive is substantially completed,
Seller and Buyer shall together inspect such improvements so completed, using
reasonable efforts to discover all uncompleted or defective construction. After
such inspection has been completed, each party shall sign an acceptance
agreement in a form reasonably acceptable to each, which shall include a list of
all "punch list" items which the parties agree are to be corrected by Seller.
Seller shall complete and/or repair such "punch list" items within a reasonable
period of time after executing the Acceptance Agreement.

                    (f) Seller warrants that Component Drive shall be
constructed substantially in accordance with plans approved by the City and
consistent with the TMP, the Final Map, and the PD Permit, and all applicable
laws in a good and workmanlike manner. The foregoing warranty shall be subject
to, and limited by, the following: (i) once Seller is notified in writing of any
breach of the above-described warranty, Seller shall promptly commence the cure
of such breach and complete such cure with diligence at Seller's sole cost; (ii)
Seller's liability pursuant to such warranty shall be limited to the cost of
correcting the defect for the matter in question, and in no event shall Seller
be liable to Buyer for any damages or liability incurred by Buyer as a result of
such defect or other matter, including without limitation consequential damages;
and (iii) notwithstanding anything contained herein, Seller shall not be liable
for any defect in design or construction which is discovered and of which Seller
receives written notice from Buyer after the


                                      -17-
<PAGE>   22

first (1st) anniversary of the recordation of a notice of completion for the
work of improvement affected by the defect. With respect to defects for which
Seller is not responsible pursuant to this section, Buyer shall have the benefit
of any construction warranties existing in favor of Seller that would assist
Buyer in correcting such defect. Upon request by Buyer, Seller shall inform
Buyer of all written construction warranties existing in favor of Seller which
affect the construction of Component Drive. Seller shall cooperate with Buyer in
enforcing such warranties and in bringing any suit that may be necessary to
enforce liability with regard to any defect for which Seller is not responsible
pursuant to this Section so long as Buyer pays all costs reasonably incurred by
Seller in so acting. Seller makes no other express or implied warranty with
respect to the design, construction or operation of Component Drive except as
set forth in this Sub-Section 10.5.2.2.

                    10.5.2.3 As soon as reasonably practicable following the
Closing, Seller shall commence and use commercially reasonable efforts to
diligently and continuously prosecute to completion the design, approval,
construction and/or implementation of all Permit Required Improvements and the
construction of Component Drive substantially in accordance with the
requirements of the City (excluding requirements related to time for performance
or completion date). Such obligations of Seller shall be extended by events of
"Force Majeure" described in Section 10.5.2.4. Seller shall implement and
complete all Permit Required Improvements within the time periods required by
the City pursuant to any Subdivision Agreement or other agreement to which the
City is a party that is adopted or implemented pursuant to the TMP, the PD
Permit or the Final Map, or in implementation of any Permit Required
Improvements; provided, however, that Seller may seek and obtain from the City
waivers or extensions of time in which to perform pursuant to any Subdivision
Agreement so long as such waiver or extension of time is consistent with the
obligation of Seller set forth in the first sentence of this Section. If Buyer's
cooperation is required for Seller to implement any Permit Required
Improvements, Buyer shall cooperate reasonably to permit Seller to implement
such Permit Required Improvements, provided that such cooperation be at Seller's
sole cost and expense and Seller shall indemnify, defend, protect and hold
harmless Buyer from any losses, costs, claims, liabilities or damages in
connection therewith.

                    10.5.2.4 The time period for completion of Permit Required
Improvements or the construction of Component Drive specified in Section
10.5.2.3 shall be extended by any prevention, delay or stoppage due to strikes,
unanticipated or unusual inclement weather, labor disputes, reasonably
unanticipated inability to obtain or delays in obtaining labor, materials,
fuels, or reasonable substitutes therefor, governmental restrictions,
regulations, controls, action or inaction (including, without limitation, delays
in obtaining necessary governmental approvals from the City, CalTrans, or any
other governmental agency having jurisdiction over any of the improvements
required to be constructed), civil commotion, fire or other peril, and other
causes beyond the reasonable control of the party obligated to perform (except
financial inability) ("FORCE MAJEURE"). If an event of Force Majeure occurs, the
party obligated to perform shall be excused from the performance for a period
equal to the period of any such prevention, delay, or stoppage, but only so long
as such party delivers to the other party who is to be benefited by such
performance notice within a reasonable period of time specifying the nature of
the Force Majeure and the estimated duration.


                                      -18-
<PAGE>   23

                    10.5.2.5 The parties acknowledge that the City requires, as
part of the Permit Required Improvements, that Seller (i) pay certain fees and
other amounts immediately as a condition to the recordation of the Final Map,
(ii) enter into a construction or subdivision agreement in which Seller agrees
to perform some or all of the Permit Required Improvements (the "SUBDIVISION
AGREEMENT"), and (iii) provide the City with bonds, letters of credit, or other
security to secure the performance of the subdivider under the Subdivision
Agreement. Buyer shall take such actions and execute such additional documents
on and after the Closing as Seller may reasonably require to the extent
reasonably needed to implement Seller's obligation to satisfy at Seller's cost
all Permit Required Improvements.

                    10.5.2.6 Intentionally Deleted.

                    10.5.2.7 To the extent any Subdivision Agreement or any of
the Permit Required Improvements require that bonds, letters of credit, or other
security be provided to secure the performance of the subdivider under the
Subdivision Agreement (the "SECURITY REQUIREMENT"), Seller shall take such
action as is necessary to satisfy the Security Requirement and shall pay all
costs associated therewith and shall provide all collateral required by the
provider of the security instrument in order to obtain the security instrument
required to satisfy the Security Requirement.

                    10.5.2.8 At such time as Seller has fully and completely
performed all of the Permit Required Improvements, upon not less than thirty
(30) days prior written request by Seller, Buyer shall provide a certification,
in recordable form, that, to its knowledge, based on information obtained from
the City, the Permit Required Improvements have been completed. Buyer shall also
provide, upon not less than thirty (30) days prior written request by Seller, an
estoppel certificate in a form reasonably satisfactory to Buyer as to its
knowledge, based on information obtained from the City, as to the state of
completion of the Permit Required Improvements.

                    10.5.2.9 As more fully set forth in Exhibit 10.5.1, it is
anticipated that the City will require dedications of the Property and Seller's
Retained Property both before and after the Closing in connection with the
implementation of the Permit Required Improvements and in accordance with the
Tentative Parcel Map, Final Map, the TMP, and the PD Permit. As set forth in
Exhibit 10.5.1, each of Buyer and Seller, as applicable, shall cause the
required dedication to be made from the property owned by it or any required
easement to be created and conveyed over the property owned by it, and neither
party shall have the obligation to reimburse the other for the cost to create
such easement or make such dedication, including the loss of use of any land
resulting from the creation of such easement, or the value of any land required
to be so dedicated. Without limiting the generality of the foregoing, it is
anticipated that further dedications following Closing will be required in
connection with the re-alignment of Orchard Parkway, certain boundary
modifications along North First Street, and traffic signalization improvements
that must be installed within Component Drive. Notwithstanding the foregoing,
this Agreement shall not obligate Buyer to make any dedication of land which
would result in the reduction of the maximum FAR permitted to be constructed on
the Property unless (i) the dedication requirement cannot be satisfied


                                      -19-
<PAGE>   24

by a dedication of Seller's Retained Property, and (ii) Seller agrees (without
the obligation to do so) to either transfer replacement FAR entitlement to Buyer
so that Buyer suffers no net loss of FAR entitlement, or (but only if Seller
cannot so transfer replacement FAR entitlement to Buyer) pay to Buyer a fee
equal to Two Hundred Six Dollars ($206) per square foot of reduction of FAR
directly caused by the required dedication of the Property.

                10.5.3 Remedies and Security. The following provisions shall
govern the remedies of the parties hereto in the event of a default of an
obligation contained in this Section 10.5:

                    10.5.3.1. A party to this Agreement shall not be in default
of any obligation contained in this Section 10.5 unless and until such party
shall have failed to perform any such obligation involving the payment of money
within five (5) days after delivery of written notice from the other party
specifying such failure to pay, or, in the case of a failure to perform an
obligation that does not involve the payment of money, such party shall not have
cured such failure to perform within thirty (30) days after written notice from
the other party specifying the nature of such failure where such failure could
reasonably be cured within such thirty (30) day period, or if such failure could
not reasonably be cured within said thirty (30) day period, such party shall
have failed to commence such cure within such thirty (30) day period and
thereafter continue with due diligence to prosecute such cure to completion
within such time period as is reasonably needed to effect the cure.

                    10.5.3.2 In order to provide security to Buyer for the
performance of Seller's obligations pursuant to this Section 10.5, Seller shall
deliver to Buyer at the Closing and maintain in effect until Seller has fully
performed its obligations under this Section 10.5 a performance bond in the
principal amount of Eight Million Dollars ($8,000,000) as security for the
performance of Seller's obligations under this Section 10.5 (and the
corresponding provisions set forth in the CC&Rs) (the "BOND"), which meets all
of the following conditions: (i) the Bond is irrevocable and in form reasonably
satisfactory to Seller and Buyer; and (ii) the Bond is drawn upon or issued by a
financial institution reasonably acceptable to Buyer. Buyer shall be entitled to
commence action to enforce the Bond, upon the occurrence of a default by Seller
of its obligations under this Section 10.5 (after notice and opportunity to cure
pursuant to Section 10.5.3.1). To the extent that Buyer receives proceeds from
the Bond and the proceeds are not needed to satisfy Seller's obligations under
this Section 10.5, Buyer shall hold such cash proceeds that are not so needed in
a separate interest-bearing account as security for the further performance of
such obligations by Seller. Upon full performance of all obligations of Seller
under this Section 10.5, the Bond (or any cash proceeds resulting from a draw
upon the Bond with any interest earned thereon) shall be returned to Seller. The
obligation to provide a Bond pursuant to this section shall not reduce or
otherwise affect the obligation of Seller to provide Security Instruments
required by the City, nor shall either the Bond or such Security Instruments
limit the personal liability of Seller for the performance of its obligations
under this Agreement, and in the event of default, Buyer may seek recourse
against any security for such obligations or personal liability, or both, in any
order.


                                      -20-
<PAGE>   25

                    10.5.3.3 In the event that Seller is in material default of
its obligations under this Section 10.5, Buyer shall have the right (without the
obligation) to perform, satisfy or fulfill such obligations and to recover from
Seller all costs (including penalties and fees) incurred by Seller in connection
therewith, which amount shall be due immediately upon written demand therefor
from Buyer to Seller. In this regard, each third party contract to which Seller
is a party that relates to the satisfaction of Permit Required Improvements
(e.g., architects' agreements, sub-consultant agreements, and construction
contracts) shall specifically provide, in form reasonably acceptable to Buyer,
that upon an event of material default by Seller of its obligations under this
Section 10.5, and upon demand of Buyer, such contracts shall be assigned to
Buyer to enable Buyer to exercise its self-help remedy described in this
Section. The form and structure of such assignment provisions shall be
consistent with documentation and lending practices of institutional
construction lenders who obtain such rights of assignment in connection with
construction loans made to commercial developers. In the event Buyer properly
seeks the assignment of any such contracts to enable it to exercise its
self-help remedy, Seller shall act reasonably to facilitate the transfer of such
contract rights, and shall be responsible for any damages incurred by Buyer
caused by its failure to do so.

                    10.5.3.4. Buyer shall have the remedies of injunctive relief
and specific performance to compel Seller to perform its obligations under this
Section 10.5, in addition to any other remedies specifically provided for in
this Section 10.5.

                    10.5.3.5. IN THE EVENT SELLER IS IN MATERIAL DEFAULT OF AN
OBLIGATION UNDER THIS SECTION 10.5 REGARDING THE DESIGN, APPROVAL, CONSTRUCTION
AND/OR COMPLETION OF A PHYSICAL IMPROVEMENT (E.G., COMPONENT DRIVE, ORCHARD
PARKWAY, THE 96-INCH STORM DRAIN LINE, AND THE OFF-SITE TRAFFIC MITIGATION
MEASURES DESCRIBED IN THE TMP AND PD PERMIT) (A "CONSTRUCTION DEFAULT"), AND IF
BUYER BECOMES ENTITLED TO AND ELECTS TO EXERCISE BUYER'S SELF-HELP REMEDY SET
FORTH IN SECTION 10.5.3.3, THEN, IN ADDITION TO THE REMEDY OF SPECIFIC
PERFORMANCE SPECIFIED IN SECTION 10.5.3.4, THE RIGHT TO RECOVER THE COST OF
CURING SUCH DEFAULT AS SPECIFIED IN SECTION 10.5.3.3, THE RIGHT TO INTEREST
SPECIFIED IN SECTION 10.5.3.6, AND THE RIGHT TO RECOVER ATTORNEYS' FEES PURSUANT
TO SECTION 17.2, SELLER SHALL PAY TO BUYER THE AMOUNT OF TEN MILLION DOLLARS
($10,000,000) AS LIQUIDATED DAMAGES FOR SUCH CONSTRUCTION DEFAULT. THE PARTIES
ACKNOWLEDGE THAT BUYER'S ACTUAL DAMAGES IN THE EVENT OF SUCH CONSTRUCTION
DEFAULT BY SELLER WOULD BE EXTREMELY DIFFICULT OR IMPRACTICAL TO DETERMINE,
PARTICULARLY BECAUSE OF THE POTENTIAL EFFECT SUCH CONSTRUCTION DEFAULT MAY HAVE
UPON THE ABILITY OF BUYER TO UTILIZE OR DISPOSE OF BUYER'S PROPERTY, AND
ACCORDINGLY THE PARTIES AGREE THAT THE AMOUNT SO SPECIFIED AS LIQUIDATED DAMAGES
IS A REASONABLE AMOUNT UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE THIS
AGREEMENT IS EXECUTED. BUYER AND SELLER AGREE THAT BUYER'S RIGHT TO RECOVER SUCH
LIQUIDATED DAMAGES IS IN LIEU OF, AND ACCORDINGLY BUYER HEREBY WAIVES ITS RIGHT
TO RECOVER, DIRECT, CONSEQUENTIAL AND


                                      -21-
<PAGE>   26

PUNITIVE DAMAGES RESULTING FROM SELLER'S CONSTRUCTION DEFAULT; PROVIDED,
HOWEVER, THAT BUYER DOES NOT WAIVE, AND THIS SECTION SHALL NOT AFFECT, BUYER'S
RIGHT TO RECOVER THE COST OF CURING SELLER'S CONSTRUCTION DEFAULT WHICH BUYER
HAS THE RIGHT TO RECOVER PURSUANT TO SECTION 10.5.3.3, THE REMEDY OF SPECIFIC
PERFORMANCE SPECIFIED IN SECTION 10.5.3.4, BUYER'S RIGHT TO INTEREST DUE
PURSUANT TO SECTION 10.5.3.6, AND BUYER'S RIGHT TO ATTORNEYS' FEES PURSUANT TO
SECTION 17.2. BY THEIR SEPARATELY EXECUTING THIS SECTION BELOW, BUYER AND SELLER
ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTOOD THE ABOVE CONCERNING LIQUIDATED
DAMAGES, AND THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED THE
CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION AT THE TIME THIS AGREEMENT WAS
EXECUTED. IF FOR ANY REASON THIS SECTION 10.5.3.5 CONCERNING LIQUIDATED DAMAGES
FOR A CONSTRUCTION DEFAULT IS DETERMINED TO BE UNENFORCEABLE IN ANY RESPECT
BECAUSE OF A CHALLENGE THERETO BROUGHT BY SELLER, THEN THE WAIVER CONTAINED IN
THE IMMEDIATELY PRECEDING SENTENCE SHALL BECOME VOID AND OF NO EFFECT, AND BUYER
SHALL HAVE ALL RIGHTS AND REMEDIES AVAILABLE AT LAW OR IN EQUITY AS A RESULT OF
SELLER'S CONSTRUCTION DEFAULT, INCLUDING THE RIGHT TO RECOVER DIRECT,
CONSEQUENTIAL, AND PUNITIVE DAMAGES RESULTING FROM ANY SUCH CONSTRUCTION
DEFAULT.


-----------------------                       --------------------
/s/ WK                                        /s/ MOH
-----------------------                       --------------------
   BUYER'S INITIALS                            SELLER'S INITIALS
-----------------------                       --------------------

                10.5.3.6 Except where otherwise provided in this Section 10.5,
whenever one party owes an amount to the other party pursuant to this Section
10.5, such amount shall be due within ten (10) days after written demand
therefor, accompanied by reasonable documentary evidence therefor. To the extent
any amount due under this Section 10.5 is not paid when due, the delinquent
party shall also pay interest on the amount so delinquent from its due date
until paid at a rate of interest equal to the lesser of (i) the maximum
permissible rate of interest allowed by California law, or (ii) an annual rate
of interest equal to four (4) percentage points over the prime rate of interest
then published by The Wall Street Journal from time to time.

            10.5.4 Survival. The provisions of this Section 10.5 shall survive
the Closing and delivery of the Deed; provided, however, that notwithstanding
any subsequent sale of Seller's Retained Property or any part thereof by Seller,
Seller shall remain personally liable for the performance of all obligations set
forth in this Agreement, including all provisions of this Section 10.5.

            10.5.5 Assignment: Following the Closing, all of Buyer's rights,
duties, and obligations under this Section 10.5 may be assigned to any entity
who becomes an owner of fee title


                                      -22-
<PAGE>   27

to the Property. In the event of any inconsistency between this Section and
Section 17.6, the terms of this Section shall prevail.

            10.6 Tax Parcel Segregation. Buyer acknowledges that the Property is
not currently segregated into a separate tax parcel that is separate from
Seller's Retained Property and that such segregation is expected to occur upon
the recording of the Final Map. Seller may seek a revaluation or other
reassessment of Seller's Retained Property to reflect, among other things, the
varied level of entitlements on Seller's remaining property. Buyer shall not
contest the values proposed by Seller for Seller's Retained Property in
connection with the transactions contemplated by this Agreement.

            10.7 Relocation of Substation. Buyer acknowledges that Seller has
disconnected the power at the main switch gear and re-routed the power source in
the private electrical substation currently located on the Property to Seller's
Retained Property. As a result of such re-routing work, Seller will require a
utility easement across a portion of the Property as described in the easement
attached hereto as Exhibit 10.7 (the "SUBSTATION UTILITY EASEMENT"). At the
Closing, Seller and Buyer shall each execute, deliver to each other and cause to
be recorded the Substation Utility Easement, which shall be recorded currently
with, but immediately following, recordation of the Grant Deed, the CC&Rs and
the Telecommunications Utility Easement. Seller shall have the right, but not
the obligation, to remove or relocate from the Property the private electrical
substation itself and/or related cabling.

            10.8 Species of Special Concern. Buyer acknowledges that (i) there
may be present on the Property Western burrowing owls ("OWLS"), which have been
designated by the State of California as a "Species of Special Concern", (ii)
Seller has entered into a mitigation agreement with the California Department of
Fish and Game with respect to such Owls, a copy of which is attached hereto as
Exhibit 10.9 (the "MITIGATION AGREEMENT") and (iii) the Mitigation Agreement
contains certain restrictions on the use of the Property to protect the Owls,
including a prohibition on evicting Owls from their burrows during the nesting
season (February 1 through August 31) and the obligation to create buffer zones
around Owl burrows and to create compensatory mitigation habitat. Seller shall
pay the amounts required to implement the Mitigation Agreement as described in
Section 7 thereof. Seller shall further use commercially reasonable efforts to
evict the Owls from the Property prior to Closing as permitted under the
Mitigation Agreement. Buyer shall otherwise be bound by and responsible for
complying with the terms of the Mitigation Agreement as to the Property
following Closing. Seller further discloses to Buyer that the Santa Clara County
District Attorney is considering filing charges against Seller and certain of
Seller's employees arising from a claim that an Owl burrow on the Property was
destroyed in connection with trenching work performed on behalf of Seller in
September 2000. The provisions of this Section 10.8 shall survive the Closing
and the recording of the Deed.

            10.9 Real Property Taxes for Tax Year 2001/2002. Buyer acknowledges
that, in connection with recording the Final Map, prior to the Closing Date,
Seller intends to put up a bond with the County of Santa Clara in the amount of
the estimated real estate taxes for the tax year 2001/2002, to secure the
payment thereof. Notwithstanding such bond, Buyer shall be solely


                                      -23-
<PAGE>   28

responsible for payment on a timely basis of all real property taxes allocable
to the Property from and after the Closing Date. Buyer shall indemnify, defend,
protect and hold harmless Seller from all losses, costs, claims, liabilities and
damages, including reasonable attorneys' fees, related to such bond if Buyer
fails to pay on a timely basis any property taxes allocable to the Property
following the Closing Date.

            10.10 Neither Seller nor Buyer shall take any action, or fail to
take any action, which would cause the revocation, termination, or suspension of
effectiveness of the PD Permit.

            10.11 Use of Component Drive. Seller and Buyer acknowledge that the
Final Map contains a "Covenant of Easement" that creates an easement over
Component Drive for ingress for the benefit of the Property and Seller's
Retained Property (the "COMPONENT DRIVE EASEMENT"). The City has required the
creation of this easement to provide traffic circulation to mitigate the effects
of traffic to be generated by the development of the Property and Seller's
Retained Property, which traffic mitigation measure is a prerequisite to further
discretionary land use approvals that may be required by the owner of the
Property or the owner of Seller's Retained Property. To implement the purpose of
the Component Drive Easement, Buyer agrees as follows: (i) except as otherwise
specifically provided by this Section, Buyer shall be responsible for the
operation, maintenance, repair, and replacement of Component Drive following its
completion; (ii) the design, alignment, and configuration of Component Drive, as
it exists following its completion by Seller, shall not be materially changed or
altered without the consent of Seller, which consent shall not be unreasonably
withheld; (iii) no gate, control device, or other barrier shall be erected along
any part of Component Drive and the Component Drive Easement shall provide
unrestricted access from the public street known as Orchard Parkway to the
public street known as North First Street and vice versa; (iv) the Component
Drive Easement may not be terminated or changed without the consent of Seller;
and (v) to the extent the City requires any modification of the Component Drive
Easement to implement its original purpose of providing traffic circulation
benefiting both the Property and Seller's Retained Property as a traffic
mitigation measure imposed to permit the entitlement for the FAR permitted on
the Property and Seller's Retained Property, Seller and Buyer shall take such
action as is reasonably requested by the City to implement such change to the
extent necessary to protect the FAR entitlement allocated to the Property and
Seller's Retained Property; provided, however, that if the change is
precipitated by a land use approval application, the applicant for such approval
shall pay the cost of implementing the change, and otherwise such cost shall be
equitably shared by Seller and Buyer.

        11. REPRESENTATIONS AND WARRANTIES.

            11.1 No Representations or Warranties by Seller. Except as expressly
set forth in this Agreement, Seller has not made any warranty or representation,
express or implied, written or oral, concerning the Property.

            11.2 Seller's Representations and Warranties. Seller represents and
warrants to Buyer that:


                                      -24-
<PAGE>   29

                11.2.1 Authority. This Agreement constitutes the valid and
binding obligation of Seller and is enforceable against Seller in accordance
with its terms, subject to bankruptcy, insolvency and similar laws affecting the
enforcement of creditors' rights generally and general equitable principles.
Seller is a corporation, validly formed, duly organized and in good standing
under the laws of the State of Delaware. Seller has full power, right and
authority to enter into and perform this Agreement. The execution and delivery
of this Agreement, delivery of money and all required documents, Seller's
performance of this Agreement and the transaction contemplated hereby have been
duly authorized by the requisite action on the part of Seller. Neither the
execution and delivery of this Agreement, nor the transaction contemplated by
this Agreement will conflict in any material respect or constitute a breach
under any agreement or instrument by which Seller or the Property is bound.

                11.2.2 Condemnation. To Seller's knowledge, Seller has received
no written notice of any pending condemnation proceedings relating to the
Property. Seller has no knowledge of any threatened condemnation proceedings
relating to the Property.

                11.2.3 Litigation. To Seller's knowledge, except as set forth in
Section 10.8, Seller has not received written notice of any litigation which has
been filed against Seller that arises out of the ownership of the Property and
would materially affect the Property or use thereof, or Seller's ability to
perform hereunder. Except as set forth in Section 10.8, Seller has no knowledge
of any threatened litigation relating to the Property.

                11.2.4 Violations. To Seller's knowledge, Seller has not
received written notice of any uncured violation of any federal, state or local
law relating to the use or operation of the Property which would materially
adversely affect the Property or use thereof, or Seller's ability to perform
hereunder, including the matter referred to in the second to last sentence of
Section 10.8. To Seller's knowledge, Seller has not received written notice of
any alleged building code violations, health and safety code violations,
federal, state or local agency actions regarding environmental matters or zoning
violations currently affecting the Property which remain uncured.

                11.2.5 Foreign Person. 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 issued thereunder.

                11.2.6 Archeological Resources. Buyer acknowledges that the
Property is located adjacent to the Guadalupe River and that Native American
artifacts are often located adjacent to waterways.

                11.2.7 Hazardous Materials. Buyer acknowledges that the Property
is located in an industrial area and that there are multiple users of hazardous
materials in the area, including Seller. Buyer further acknowledges that Seller
has disclosed that a diesel fuel spill occurred in the northern portion of
Seller's Retained Property in August 2000 that was reported to the Santa Clara
Valley Water District on September 25, 2000. The spill is more particularly
described in the letter dated November 22, 2000 from SECOR International
Incorporated, a copy of which Buyer acknowledges that it has received.



                                      -25-
<PAGE>   30

                11.2.8 Species of Special Concern. Buyer acknowledges that it is
aware that there may be currently Owls present on the Property as described in
Section 10.8 hereof. Seller has delivered to Buyer a true, complete and correct
copy of the Mitigation Agreement, and the Mitigation Agreement is in full force
and effect and has not been modified from the form delivered to Buyer. On or
before the Closing Date, Seller shall have paid $414,000 into an escrow as
required by Section 7.D of the Mitigation Agreement.

                11.2.9 Flood Control Act. Seller discloses that the Property is
located in a "flood zone", as set forth on HUD "Special Flood Zone Area Maps".

                11.2.10 Special Studies Zone Act. Seller discloses that the
Property is not situated in a Special Study Zone as designated under the
Alquist-Priolo Special Studies Zone Act, Section 2621-2630, inclusive, of the
California Public Resources Code, or otherwise in an area of high geologic
hazard.

                11.2.11 Occupancy Rights. There are no leases or tenancies
affecting the Property that will remain in effect after the Closing. Except with
respect to the Permitted Exceptions, possession of the Property will be
delivered to Buyer or its permitted assignee at the Closing free of any
possessory rights of third parties claiming by or through Seller.

            11.3 Buyer's Representations and Warranties. Buyer represents and
warrants to Seller that:

                11.3.1 Authority to Execute; Organization. This Agreement
constitutes the valid and binding obligation of Buyer and is enforceable against
Buyer in accordance with its terms, subject to bankruptcy, insolvency and
similar laws affecting the enforcement of creditors' rights generally and
general equitable principles.

                11.3.2 No Encumbrance. Prior to Closing, Buyer shall neither
encumber nor cause any liens to be created against the Property in any way, nor
shall Buyer, at any time, record this Agreement or a memorandum thereof.

                11.3.3 Principal; Financial Resources. Buyer is acting as a
principal in connection with the transaction as contemplated by this Agreement
and presently possesses, and will possess as of the Closing, the financial
resources to timely consummate the purchase and sale transaction contemplated by
this Agreement.

            11.4 Knowledge Defined. References to the "knowledge" of Seller and
phrases of similar import shall refer only to the current actual (not
constructive) knowledge of Jim Schnur, and shall not be construed, by imputation
or otherwise, to refer to the knowledge of any affiliate of Seller, to any
property manager, or to any other officer, agent, manager, representative or
employee of Seller or any affiliate thereof or to impose upon such persons any
duty to investigate the matter to which such actual knowledge, or the absence
thereof, pertains. Seller represents that Jim Schnur is a Global Real Estate
Manager of Seller.


                                      -26-
<PAGE>   31

        12. INDEMNIFICATION.

            12.1 Indemnification of Buyer. Seller hereby agrees to indemnify,
defend and protect Buyer against, and to hold Buyer harmless from, all losses,
claims, liabilities, damages, costs and expenses whatsoever including without
limitation reasonable legal fees and disbursements, incurred by Buyer relating
to the Property which arise, result from or relate to any material breach of any
of the representations or warranties of Seller set forth in Section 11.2 of this
Agreement subject, however, to the limitations of Section 16.4.

            12.2 Defense of Claims Against Buyer. With respect to any claim for
which Buyer has requested indemnification under Section 12.1, Seller shall be
entitled to assume the defense of any related litigation, arbitration or other
proceeding, provided that Buyer may at its election and expense, participate in
such defense, and provided further that if there is any difference of opinion or
strategy with respect to the defense of such action or the assertion of
counterclaims to be brought with respect thereto, Seller's counsel will, after
consultation with Buyer's counsel, determine the actual strategy, defense or
counterclaim to be employed. At Seller's reasonable request, Buyer will
cooperate with Seller in the preparation of any defense for any such claim and
Seller will reimburse Buyer for any reasonable expenses incurred in connection
with such request. If Seller does not elect to assume the defense of any such
matter and such matter is defended by Buyer, Seller shall have the right, at its
sole expense, to employ separate counsel acceptable to Buyer and participate in
such defense, provided that if there is any difference of opinion or strategy
with respect to the defense of such action or the assertion of counterclaims to
be brought with respect thereto, Buyer's counsel will, after consultation with
Seller's counsel, determine the actual strategy, defense and/or counterclaim to
be employed.

            12.3 Indemnification of Seller. Buyer hereby agrees to indemnify,
defend and protect Seller against, and to hold Seller harmless from, all losses,
claims, liabilities, damages, costs and expenses whatsoever including without
limitation reasonable legal fees and disbursements, incurred by Seller relating
to the Property which arise, result from or relate to any material breach of any
of the representations or warranties of Buyer set forth in Section 11.3 of this
Agreement.

            12.4 Defense of Claims Against Seller. With respect to any claim for
which Seller has requested indemnification under Section 12.3, Buyer shall be
entitled to assume the defense of any related litigation, arbitration or other
proceeding, provided that Seller may at its election and expense, participate in
such defense, and provided further that if there is any difference of opinion or
strategy with respect to the defense of such action or the assertion of
counterclaims to be brought with respect thereto, Buyer's counsel will, after
consultation with Seller's counsel, determine the actual strategy, defense or
counterclaim to be employed. At Buyer's reasonable request, Seller will
cooperate with Buyer in the preparation of any defense for any such claim and
Buyer will reimburse Seller for any reasonable expenses incurred in connection
with such request. If Buyer does not elect to assume the defense of any such
matter, and such matter is defended by Seller, Buyer shall have the right, at
its sole expense, to employ separate counsel acceptable to Seller and
participate in such defense, provided that if there is any difference of opinion
or strategy with respect to the defense of such action or the assertion of
counterclaims to be brought with respect thereto, Seller's counsel will,


                                      -27-
<PAGE>   32

after consultation with Buyer's counsel, determine the actual strategy, defense
and/or counterclaim to be employed.

        13. CASUALTY OR CONDEMNATION.

            13.1 Casualty. Prior to the Closing, and notwithstanding the
pendency of this Agreement, the entire risk of loss or damage by earthquake,
flood, landslide, fire or other casualty shall be borne and assumed by Buyer.
If, prior to the Closing, any part of the Property is damaged or destroyed by
earthquake, flood, landslide, fire or other casualty, Seller shall immediately
notify Buyer of such fact. Neither party shall have the right to terminate this
Agreement, but Seller shall assign and turn over to Buyer, and Buyer shall be
entitled to receive and keep all insurance proceeds payable to it with respect
to such destruction (but not in excess of the Purchase Price) and the parties
shall proceed to the Closing pursuant to the terms hereof without modification
of the terms of this Agreement and without any reduction in the Purchase Price.
Buyer shall have the right to participate in any adjustment in the insurance
claim.

            13.2 Condemnation. In the event that all or any substantial portion
of the Property shall be taken in condemnation or under the right of eminent
domain after the Effective Date and before the Closing, Buyer may, at its option
either (a) terminate this Agreement by written notice thereof to Seller and
receive an immediate refund of the Deposit, together with any interest earned
thereon, or (b) proceed to close the transaction contemplated herein pursuant to
the terms hereof in which event Seller shall assign and turn over to Buyer, and
Buyer shall be entitled to receive and keep all awards for the taking by eminent
domain which accrue to Seller and there shall be no reduction in the Purchase
Price. For purposes of this provision, a "substantial portion" of the Property
shall mean (i) any portion of the Property is taken that would materially
interfere with the use and development of the Property as a corporate campus;
(ii) more than five percent (5%) of the Property is taken; or (iii) the access
to the Property is materially reduced or restricted. In the event that a portion
of the Property less than a substantial portion is taken, or Buyer elects not to
terminate this Agreement, Buyer shall proceed to close the transaction
contemplated herein and there shall be no reduction in the Purchase Price and
Seller shall assign and turn over to Buyer and Buyer shall be entitled to
receive and keep all awards for the taking by eminent domain which accrue to
Seller.

        14. BROKERS. Buyer represents and warrants to the Seller that no real
estate broker or agent has been authorized to act on Buyer's behalf except for
Cornish & Carey Commercial (Phil Mahoney) ("BUYER'S AGENT"). Buyer shall pay
through Escrow at Closing to Buyer's Agent as a real estate brokerage commission
an amount as separately agreed between those two parties. Buyer shall be solely
responsible for all fees or other consideration owed to Buyer's Agent as an
obligation separate and independent from Buyer's obligation to pay Seller the
Purchase Price hereunder. Buyer acknowledges that neither Seller nor Seller's
Agent shall have any obligation to pay any fees or other consideration to Buyer
or Buyer's Agent in connection herewith. Seller shall be responsible upon
Closing of the proposed transaction for the payment of any real estate brokerage
commission due Seller's Broker, Cornish & Carey Commercial (Mike Brand, Corey
Brand and Scott Carey) ("SELLER'S AGENT"). Buyer and Seller each indemnifies the
other party and agrees to defend and hold the other party harmless from any and
all demands or claims which now or hereafter may be asserted


                                      -28-
<PAGE>   33

against the other party for any brokerage fees, commissions or similar types of
compensation which may be claimed by any broker as a result of the indemnifying
party's acts in connection with this transaction, except as otherwise provided
herein.

        15. NOTICES.

            All notices, requests or demands to a party hereunder shall be in
writing and shall be given or served upon the other party by personal service,
by certified return receipt requested mail, postage prepaid, or by Federal
Express or other nationally recognized commercial courier, charges prepaid,
addressed as set forth below. Any such notice, demand, request or other
communication shall be deemed to have been given upon the earlier of personal
delivery thereof, three (3) business days after having been mailed as provided
above, or one (1) business day after delivery through a commercial courier, as
the case may be. Each party shall be entitled to modify its address by notice
given in accordance with this Section 15.

               If to Seller:        Agilent Technologies, Inc.
                                    10 N. Martingale, Rd. Suite 550
                                    Schaumburg, IL 60173
                                    Attention: Jim Schnur

                                    And to:
                                    Agilent Technologies, Inc.
                                    395 Page Mill Road, MS A3-10
                                    Palo Alto, CA  94306
                                    Attn: Roxanne Rapson

               With a copy to:      Wilson Sonsini Goodrich & Rosati
                                    650 Page Mill Road
                                    Palo Alto, CA  94304
                                    Attn: Bradford C. O'Brien

               If to Buyer:         BEA Systems, Inc.
                                    2315 North First Street
                                    San Jose, CA 95131
                                    Attn: Frank Jesse

               With a copy to:      Crosby, Heafey, Roach and May
                                    Two Embarcadero Center, Suite 2000
                                    San Francisco, CA 94111
                                    Attn: Charles H. Seaman


                                      -29-
<PAGE>   34


        16. LIMITATIONS ON REPRESENTATIONS AND WARRANTIES.

            16.1 No Reliance on Documents. Except as expressly stated herein,
Seller makes no representation or warranty as to the truth, accuracy or
completeness of any materials, data or information delivered by Seller or its
agents to Buyer in connection with the transaction contemplated hereby. Buyer
acknowledges and agrees that all materials, data and information delivered by
Seller to Buyer in connection with the transaction contemplated hereby are
provided to Buyer as a convenience only and that any reliance on or use of such
materials, data or information by Buyer shall be at the sole risk of Buyer.
Neither Seller, nor any affiliate of Seller, nor the person or entity which
prepared any report or reports delivered by Seller to Buyer shall have any
liability to Buyer for any inaccuracy in or omission from any such reports.

            16.2 As-Is Sale: Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, IT IS UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING AND HAS NOT AT
ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO,
ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.

        BUYER ACKNOWLEDGES AND AGREES THAT UPON CLOSING, SELLER SHALL SELL AND
CONVEY TO BUYER AND BUYER SHALL ACCEPT THE PROPERTY "AS IS, WHERE IS, WITH ALL
FAULTS", EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT.
BUYER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND
BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS
OR INFORMATION PERTAINING TO THE PROPERTY OR RELATING THERETO (INCLUDING
SPECIFICALLY, WITHOUT LIMITATION, OFFERING PACKAGES DISTRIBUTED WITH RESPECT TO
THE PROPERTY) MADE OR FURNISHED BY SELLER OR ANY EMPLOYEES OR AGENTS
REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN,
DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS SPECIFICALLY SET FORTH IN
THIS AGREEMENT. BUYER ALSO ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS AND
TAKES INTO ACCOUNT THAT THE PROPERTY IS BEING SOLD "AS-IS."

        BUYER REPRESENTS TO SELLER THAT BUYER HAS CONDUCTED SUCH INVESTIGATIONS
OF THE PROPERTY, INCLUDING BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL
CONDITIONS THEREOF, AS BUYER DEEMS NECESSARY OR DESIRABLE TO SATISFY ITSELF AS
TO THE CONDITION OF THE PROPERTY AND THE EXISTENCE OR NONEXISTENCE OF CURATIVE
ACTION TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR
DISCHARGED FROM THE PROPERTY, AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY
INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS OR EMPLOYEES WITH
RESPECT THERETO, OTHER THAN SUCH REPRESENTATIONS, WARRANTIES AND COVENANTS OF
SELLER AS ARE EXPRESSLY SET FORTH IN THIS


                                      -30-
<PAGE>   35

AGREEMENT. UPON CLOSING, BUYER SHALL ASSUME THE RISK THAT ADVERSE MATTERS,
INCLUDING BUT NOT LIMITED TO, DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL
CONDITIONS, MAY NOT HAVE BEEN REVEALED BY BUYER'S INVESTIGATIONS, AND BUYER,
UPON CLOSING (EXCEPT WITH RESPECT TO THE EXPRESS REPRESENTATIONS, WARRANTIES AND
COVENANTS OF SELLER SET FORTH IN THIS AGREEMENT AND THE CC&RS), SHALL BE DEEMED
TO HAVE WAIVED, RELINQUISHED AND RELEASED SELLER (AND SELLER'S OFFICERS,
DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) FROM AND AGAINST ANY AND ALL
CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT), LOSSES,
DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES)
OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH BUYER MIGHT HAVE
ASSERTED OR ALLEGED AGAINST SELLER (AND SELLER'S OFFICERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES AND AGENTS) AT ANY TIME BY REASON OF OR ARISING OUT OF
ANY LATENT OR PATENT DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF ANY
APPLICABLE LAWS AND ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR
MATTERS REGARDING THE PROPERTY; PROVIDED, HOWEVER, THE FOREGOING PROVISION SHALL
NOT BE CONSTRUED AS A RELEASE OF SELLER WITH RESPECT TO ANY ACTS OR OMISSIONS OF
SELLER OCCURRING AFTER THE CLOSING DATE . BUYER HEREBY WAIVES THE PROVISIONS OF
CALIFORNIA CIVIL CODE SECTION 1542 WHICH PROVIDES THAT:

        "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."

-----------------------                       --------------------
/s/ WK                                        /s/ MOH
-----------------------                       --------------------
   BUYER'S INITIALS                            SELLER'S INITIALS
-----------------------                       --------------------

            16.3 Material Change. Seller shall promptly notify Buyer of any
material change in any condition with respect to the Property or any event or
circumstance which makes any representation or warranty of Seller as set forth
in Section 11.2 of this Agreement materially untrue or misleading or any
covenant of Seller under this Agreement incapable of being performed. In no
event shall Seller be liable to Buyer for, or be deemed to be in default
pursuant to this Agreement by reason of any inaccuracy of a representation or
warranty which results from any change that (i) occurs between the Effective
Date and the Closing Date; and (ii) is expressly permitted under the terms of
this Agreement or is beyond the reasonable control of Seller to prevent;
provided, however, that the occurrence of a material change which is not
permitted hereunder shall constitute the non-fulfillment of the condition set
forth in Section 7.2.2 hereof. If, in spite of such nonfulfillment of the
conditions set forth in such Section 7.2.2 the Closing occurs, Seller's
representations and warranties set forth in this Agreement shall be deemed to
have been modified by all statements made in any


                                      -31-
<PAGE>   36

notice or notices of modification as given by Seller to Buyer pursuant to this
Section 16.3 prior to the Closing.

            16.4 Survival of Seller's Representations and Warranties. The
representations and warranties of Seller set forth in Section 11.2 hereof (as
such may have been updated as of the Closing in accordance with Section 16.3) in
accordance with the terms of this Agreement, shall survive Closing for a period
of eight (8) months. No claim for a breach of any representation or warranty of
Seller shall be actionable or payable if the breach in question results from or
is based on a condition, state of facts or other matter which was known to Buyer
prior to Closing. Seller shall have no liability to Buyer for a breach of any
representation or warranty (a) unless the valid claims for all such breaches of
any representations or warranties collectively aggregate more than One Hundred
Thousand Dollars ($100,000), in which event the amount of such valid claims in
excess of One Hundred Thousand Dollars ($100,000) shall be actionable, and (b)
unless written notice containing a description of the specific nature of such
breach shall have been given by Buyer to Seller prior to the expiration of said
eight (8) month period and any action shall have been commenced by Buyer against
Seller within ten (10) months of Closing. Buyer agrees to first seek recovery
under any insurance policies prior to seeking recovery from Seller, and Seller
shall not be liable to Buyer if Buyer's remaining claim after recovery from such
insurance policies is less than One Hundred Thousand Dollars ($100,000). The
limitations set forth in this Section 16.4 shall not apply, however, to any
claims against Seller for the breach of its obligations under Section 10.5.2.

            16.5 Survival of Limitations. The provisions of this Article 16
shall survive Closing or any termination of this Agreement.

        17. MISCELLANEOUS.

            17.1 Time. Time is of the essence in the performance of each party's
obligations hereunder; however, if the final date of any period which is set out
in any provision of this Agreement falls on a Saturday, Sunday or legal holiday
under the laws of the United States or the State in which the Property is
located, then, in such event, the time of such period shall be extended to the
next day which is not a Saturday, Sunday or legal holiday.

            17.2 Attorneys' Fees. If any legal action, arbitration or other
proceeding is commenced to enforce or interpret any provision of this Agreement,
the prevailing party shall be entitled to an award of its attorneys' fees and
expenses. The phrase "prevailing party" shall include a party who receives
substantially the relief desired whether by dismissal, summary judgment,
judgment or otherwise.

            17.3 No Waiver. No waiver by any party of the performance or
satisfaction of any covenant or condition shall be valid unless in writing and
shall not be considered to be a waiver by such party of any other covenant or
condition hereunder.

            17.4 Entire Agreement. This Agreement contains the entire agreement
between the parties regarding the Property and supersedes all prior agreements,
whether written or oral, between the parties regarding the same subject. This
Agreement may only be modified in writing.


                                      -32-
<PAGE>   37

            17.5 Survival. The provisions of this Agreement shall not merge with
the delivery of the Deed but shall, except as otherwise provided in this
Agreement, survive the Closing.

            17.6 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the heirs, executors, administrators and successors
and assigns of Seller and Buyer; provided, however, that Buyer shall not, prior
to the Closing, assign Buyer's rights and obligations pursuant to this Agreement
to any party without the prior written consent of Seller which consent may be
withheld in its sole and absolute discretion. Seller acknowledges that Buyer is
considering financing its acquisition of Property through an off-balance sheet
financing. Notwithstanding the foregoing limitations on Buyer's ability to
assign its interest in this Agreement, Buyer shall have the right, upon receipt
of Seller's prior written consent, which consent shall not be unreasonably
withheld, to assign its interest in this Agreement to the subsidiary of the
institutional lender from which Buyer obtains the off-balance sheet financing or
other special purpose entity formed for the purpose of holding title to the
Property as part of such off-balance sheet financing arrangement. Seller hereby
consents to the assignment of Buyer's interest in this Agreement to ABN AMRO
Leasing, Inc. so long as such entity is providing off-balance sheet financing to
Buyer for the acquisition of the Property. In the event of such an assignment in
connection with such off-balance sheet financing, Buyer's assignee will not be
required to assume any liability under this Agreement; provided, however, that
Buyer's assignee, if it takes title to the Property, must execute, deliver, and
be bound by the CC&Rs, the Telecommunications Easement, and the Substation
Utility Easement. Notwithstanding any assignment of Buyer's interest, rights or
obligations under this Agreement (whether or not in connection with any such
off-balance sheet financing), Buyer shall remain fully liable for all of its
obligations under this Agreement. No assignment shall release Buyer from any
such obligations. If Buyer assigns any interest in this Agreement and leases,
occupies, or otherwise acquires any interest in the Property, it shall be bound
by the CC&Rs as if it were a party thereto.

            17.7 Severability. In the case that any one or more of the
provisions contained in this Agreement are for any reason held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.

            17.8 Captions. Paragraph titles or captions contained in this
Agreement are inserted as a matter of convenience only and for reference, and in
no way define, limit, extend or describe the scope of this Agreement.

            17.9 Exhibits. All exhibits attached hereto shall be incorporated
herein by reference as if set out herein in full.

            17.10 Relationship of the Parties. The parties acknowledge that
neither party is an agent for the other party, and that neither party shall or
can bind or enter into agreements for the other party.

            17.11 Governing Law. This Agreement and the legal relations between
the parties hereto shall be governed by and be construed in accordance with the
laws of the State of California.


                                      -33-
<PAGE>   38

            17.12 Review by Counsel. The parties acknowledge that each party and
its counsel have reviewed and approved this Agreement, and the parties hereby
agree that the normal rule of construction to the effect that any ambiguities
are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any amendments or exhibits hereto.

            17.13 Counterparts. This Agreement may be executed in counterparts,
each of which shall constitute an original. This Agreement shall only be
effective if a counterpart is signed by both Seller and Buyer.

            17.14 Filing of Reports. The Title Company shall be solely
responsible for the timely filing of any reports or returns required pursuant to
the provisions of Section 6045(e) of the Internal Revenue Code of 1986 as
amended (and any similar reports or returns required under any state or local
laws) in connection with the Closing.

            17.15 1031 Exchange. In connection with the transactions
contemplated by this Agreement, Seller may wish to engage in a tax deferred
exchange pursuant to Section 1031 of the Internal Revenue Code of 1986 as
amended. Buyer agrees to reasonably cooperate with Seller in connection with
such exchange, provided, however, that (i) Buyer will not be required to take
title to any other property; (ii) Buyer shall not incur any additional liability
or cost by reason of such exchange; (iii) Seller will indemnify and hold Buyer
harmless for, from and against any claim, demand, cause of action, liability or
expense (including attorney's fees) in connection therewith, including, without
limitation, any increase in escrow fees or charges resulting from such exchange;
and (iv) Seller acknowledges and agrees that Buyer has not made and will not
make any representation or warranty as to the effectiveness for tax purposes of
any such exchange. Without otherwise restricting Seller's right to assign its
rights and obligations under this Agreement, the parties hereto acknowledge that
Seller may assign some or all of its rights hereunder, without a related
assumption of obligations by the assignee, and receive an assignment back after
Closing of some or all of such rights so assigned that survive the Closing
(other than the right to receive payment of the Purchase Price), in connection
with the implementation of a tax deferred exchange; provided, however, that any
such assignment shall not relieve Seller of its personal liability under this
Agreement (and in this regard, the assignment shall provide that Seller retains
all obligations under Section 10.5 hereof), and the assignee shall not be bound
to perform any obligation of Seller unless it expressly assumes such obligation
in writing. The parties acknowledge that Seller, as the owner of Seller's
Retained Property, is obligated to execute and deliver to CC&Rs, the
Telecommunications Utility Easement, and the Substation Utility Easement. If
Seller gives Buyer (and/or any assignee of Buyer) notice of an assignment and
requests of Buyer (and/or such assignee) an acknowledgement of such assignment,
Buyer (and its assignee) shall provide such acknowledgement in writing prior to
Closing.

            17.16 Third Party Beneficiaries. This Agreement is for the benefit
of Buyer and Seller and their respective shareholders, partners and successors
and no third party shall be entitled to the benefit of any of the provisions of
this Agreement.

            17.17 Facsimile Signatures. Seller and Buyer each (a) has agreed to
permit the use from time to time, where appropriate, of telecopy signatures in
order to expedite the transaction


                                      -34-
<PAGE>   39

contemplated by this Agreement, (b) intends to be bound by its respective
telecopy signature, (c) is aware that the other will rely on the telecopied
signature, and (d) acknowledges such reliance and waives any defenses to the
enforcement of this Agreement and the documents affecting the transaction
contemplated by this Agreement based on the fact that a signature was sent by
telecopy only.

        18. DEFAULT.

            18.1 Liquidated Damages. FROM AND AFTER THE EFFECTIVE DATE, IN THE
EVENT THE SALE OF THE PROPERTY AS CONTEMPLATED HEREUNDER IS NOT CONSUMMATED DUE
TO A DEFAULT OF BUYER, THE DEPOSIT (INCLUDING ALL ADDITIONAL DEPOSITS MADE BY
BUYER PURSUANT TO SECTION 5.1.1 AND ALL INTEREST EARNED FROM THE INVESTMENT OF
THE DEPOSIT) SHALL BE PAID TO AND RETAINED BY SELLER AS LIQUIDATED DAMAGES. THE
PARTIES ACKNOWLEDGE THAT SELLER'S ACTUAL DAMAGES IN THE EVENT THAT THE SALE IS
NOT CONSUMMATED WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE.
THEREFORE, BY SEPARATELY EXECUTING THIS SECTION 18.1 BELOW, THE PARTIES
ACKNOWLEDGE THAT THE NONREFUNDABLE DEPOSIT HAS BEEN AGREED UPON, AFTER
NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF SELLER'S DAMAGES AND AS
SELLER'S EXCLUSIVE REMEDY IN LAW OR IN EQUITY AGAINST BUYER IN THE EVENT THE
CLOSING DOES NOT OCCUR DUE TO THE DEFAULT OF BUYER AND AS SELLER'S SOLE AND
EXCLUSIVE REMEDY AGAINST BUYER ARISING FROM SUCH FAILURE OF THE SALE TO CLOSE.
IN ADDITION, BUYER SHALL PAY ALL TITLE, SURVEY AND ESCROW CANCELLATION CHARGES.
NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL THIS SECTION 18.1 LIMIT THE
DAMAGES RECOVERABLE BY EITHER PARTY AGAINST THE OTHER PARTY DUE TO (A) THE OTHER
PARTY'S OBLIGATION TO INDEMNIFY SUCH PARTY IN ACCORDANCE WITH THIS AGREEMENT, OR
(B) THIRD PARTY CLAIMS. BY THEIR SEPARATELY EXECUTING THIS SECTION 18.1 BELOW,
BUYER AND SELLER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTOOD THE ABOVE
PROVISION COVERING LIQUIDATED DAMAGES, AND THAT EACH PARTY WAS REPRESENTED BY
COUNSEL WHO EXPLAINED THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION AT
THE TIME THIS AGREEMENT WAS EXECUTED.


-----------------------                       --------------------
/s/ MOH                                       /s/ WK
-----------------------                       --------------------
  SELLER'S INITIALS                            BUYER'S INITIALS
-----------------------                       --------------------

            18.2 Default by Seller. In the event the sale of the Property as
contemplated hereunder is not consummated due to Seller's default hereunder,
Buyer shall be entitled, as its sole remedy, either (a) to receive the return of
the Deposit and to recover from Seller Buyer's actual, reasonable, out-of-pocket
costs incurred by Buyer in performing its inspections, investigations and other
due diligence review of the Property, which return and recovery shall operate to
terminate this


                                      -35-
<PAGE>   40

Agreement and release Seller from any and all liability hereunder, or (b) to
enforce specific performance of Seller's obligation to convey the Property to
Buyer in accordance with the terms of this Agreement, it being understood and
agreed that the remedy of specific performance shall not be available to enforce
any other obligation of Seller hereunder, except as otherwise expressly provided
in Section 10.5.3.4. Buyer expressly waives its rights to seek damages if the
Closing does not occur in the event of Seller's default hereunder. Buyer shall
be deemed to have elected to terminate this Agreement and receive back the
Deposit if Buyer fails to file suit for specific performance against Seller in a
court having jurisdiction in the county and state in which the Property is
located, on or before thirty (30) days following the date upon which Closing was
to have occurred.



                                      -36-
<PAGE>   41


        IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.


                                            SELLER:


                                            AGILENT TECHNOLOGIES, INC.,
                                            a Delaware corporation


                                            By: /s/ Marie Oh Huber
                                                --------------------------------
                                            Name: Marie Oh Huber
                                                 -------------------------------
                                            Title: Vice President, Assistant
                                                   Secretary and Assistant
                                                   General Counsel
                                                  ------------------------------
                                            Date: 2/1/01
                                                  ------------------------------





                       [SIGNATURES CONTINUED ON NEXT PAGE]


                                      -37-
<PAGE>   42


                                            BUYER:


                                            BEA SYSTEMS, INC.,
                                            a Delaware corporation


                                            By: /s/ William M. Klein
                                               ----------------------------
                                            Name: William M. Klein
                                                 --------------------------
                                            Title: Executive Vice President
                                                   and Chief Financial
                                                   Officer
                                                  -------------------------
                                            Date: 2/1/01
                                                  -------------------------


                                      -38-
<PAGE>   43


                                LIST OF EXHIBITS


<TABLE>
<S>                   <C>           <C>
Exhibit 1.1.1         -             Legal Description of Land
Exhibit 3.3.1         -             Preliminary Title Report [omitted]
Exhibit 3.4           -             Form of Covenants, Conditions and Restrictions (CC&Rs)
Exhibit 3.5           -             Form of Telecommunications Utility Easement
Exhibit 6.2           -             Due Diligence Material [omitted]
Exhibit 8.1.1         -             Form of Grant Deed
Exhibit 10.5.1        -             Tentative Map Permit, Final Map, PD Permit, and Permit
                                    Required Improvements
Exhibit 10.5.1.1      -             Tentative Map Permit [omitted]
Exhibit 10.5.1.2      -             Planned Development Permit [omitted]
Exhibit 10.7          -             Form of Substation Utility Easement
Exhibit 10.9          -             Mitigation Agreement [omitted]
</TABLE>



                                      -39-
<PAGE>   44


                                  EXHIBIT 1.1.1

                            LEGAL DESCRIPTION OF LAND


        All that certain property in the City of San Jose, County of Santa
Clara, State of California, described as follows:

All of Parcel 2 as shown on that certain Map, entitled "Parcel Map", which Map
was filed for record in the Office of the Recorder of the County of Santa Clara,
State of California, on January 30, 2001, in Book 736 of Maps, at pages 30, 31
and 32.



<PAGE>   45


                                   EXHIBIT 3.4

             FORM OF COVENANTS, CONDITIONS AND RESTRICTIONS (CC&RS)

RECORDING REQUESTED BY
AND, WHEN RECORDED, RETURN TO:

Agilent Technologies, Inc.
395 Page Mill Road, MS A3-10
Palo Alto, CA  94306
Attention: Roxanne Rapson
--------------------------------------------------------------------------------

                         AGREEMENT CONTAINING COVENANTS
                              RUNNING WITH THE LAND

        THIS AGREEMENT CONTAINING COVENANTS RUNNING WITH THE LAND (this
"Agreement") dated ____________, 2001, for references purposes only, is made by
and between AGILENT TECHNOLOGIES, INC., a Delaware corporation ("Seller"), and
ABN AMRO LEASING, INC., an Illinois corporation ("Buyer").

        1. Recitals: The Agreement is made with reference to the following facts
and objectives:

            (a) Seller is the owner of that certain real property located in the
City of San Jose, County of Santa Clara, State of California, as more
particularly described in Exhibit A attached hereto.

            (b) Buyer has purchased from Seller that certain real property
abutting North First Street, in the City of San Jose, County of Santa Clara,
State of California, as more particularly described on Exhibit B attached
hereto.

            (c) Buyer and Seller desire to enter into certain agreements
relating to the improvement of the Buyer's Property and the development of the
Seller's Property which Buyer and Seller desire be binding upon each successive
owner of the Buyer's Property as covenants running with the land and,
accordingly, the parties hereto enter into and record this Agreement in the
Official Records of the County of Santa Clara, California, to implement the
foregoing intentions.

        2. Definitions: The following terms shall have the following meanings
when used in this Agreement:

            (a) Agreement: The term "Agreement" shall mean this Agreement.


                                      -2-
<PAGE>   46


            (b) Buyer Owner: The term "Buyer Owner" shall mean an Owner of any
portion of the Buyer's Property, including Buyer.

            (c) Buyer's Property: The term "Buyer's Property" shall mean all
that real property described on Exhibit B attached hereto.

            (d) City: The term "City" shall mean the City of San Jose,
California.

            (e) Floor Area: The term "Floor Area" shall mean the floor area
within buildings as defined, calculated and determined in accordance with the
standards used by the City of San Jose, California, in expressing maximum
density for the development of buildings.

            (f) Mortgagee: The term "Mortgagee" shall mean a beneficiary under
or a holder of a deed of trust, mortgage, or other security instrument
encumbering the Buyer's Property, Seller's Property, or any portion thereof.

            (g) Owner: The term "Owner" shall mean any person or entity owning
of public record legal title to a fee estate in either the Buyer's Property or
the Seller's Property, or any portion thereof.

            (h) Seller Owner: The term "Seller Owner" shall mean an Owner of any
portion of the Seller's Property, including Seller.

            (i) Seller's Property: The term "Seller's Property" shall mean that
real property owned by Seller more particularly described on Exhibit A attached
hereto.

            (j) Tenant: The term "Tenant" shall mean any tenant, subtenant, or
any other party who has been given the right by any Owner of the Seller's
Property or the Buyer's Property to use or otherwise occupy any portion of the
Seller's Property or the Buyer's Property, respectively.

        3. Buyer's Agreement Not to Oppose Development: Each Owner and Tenant of
any portion of the Buyer's Property shall not oppose, object to, or interfere
with, in any manner whatsoever, any future development of the Seller's Property
or any portion thereof, including, without limitation, any construction of
improvements (whether on-site or off-site), any application for land use or
development rights or approvals, any change of access, and any measures
regulating traffic. Without limiting the generality of the foregoing, each Owner
and Tenant of the Buyer's Property shall not directly or indirectly through any
employee, agent, or representative acting within the scope of its employment,
agency, or engagement (i) appear in opposition to any proposed development of
the Seller's Property, or any portion thereof, at any public hearing called by
the City, County or State or any division of the foregoing, (ii) join in any
petition to the City, County or State or any division of the foregoing objecting
to any proposed development of the Seller's Property or any portion thereof, or
(iii) on behalf of the public, commence any legal proceeding or administrative
action objecting to any proposed development on the Seller's Property or any
portion thereof. The restrictions contained in this


                                      -3-
<PAGE>   47

Paragraph 3 shall extend to all matters of public concern, not just the impact
the proposed development may have on traffic flow in the area, including,
without limitation, concerns regarding design, coverage, zoning, and the
environment. The covenants and restrictions contained in this paragraph 3 shall
remain in full force and effect through the date (the "Sunset Date") that Seller
and all other Seller Owners have finally completed construction of buildings on
the Seller's Property that constitutes full development of such property such
that no further buildings could be built on such property under the then
existing land use entitlements affecting such property. After the Sunset Date,
Seller and all other Seller Owners shall execute and deliver to Buyer a document
in recordable form acknowledging that the covenants and restrictions contained
in this paragraph 3 have ceased to be effective.

        4. No Limitation on Seller's Property: It is specifically agreed by the
parties hereto that this Agreement is strictly for the benefit of the Seller's
Property and the Owners thereof and does not, in any manner whatsoever, place
any restrictions, obligations or liabilities of any type whatsoever (including,
but not limited to, density restrictions and/or limitations) upon the Seller's
Property, any Seller Owner, or any Tenant of the Seller's Property.

        5. Restriction on Development of Buyer's Property:

            (a) Floor Area: Neither Buyer nor any other Buyer Owner shall, and
no Buyer Owner shall permit or suffer any Tenant of any portion of the Buyer's
Property or suffer or permit any agent, representative or contractor of such
Buyer Owner or any such Tenant to, take or omit to take any action regarding the
development of the Buyer's Property, or any portion thereof, that could,
individually or in the aggregate, directly or indirectly reduce the maximum
Floor Area of buildings that may be constructed on the Seller's Property below
the amount that is permitted by the Planned Development Permit and the Tentative
Map described in Section 7. In particular, but without limitation, no such party
shall construct, or apply for or implement any permit or approval of any
governmental authority to construct, any building(s) on the Buyer's Property if
the then Seller Owners determine, in their sole discretion, that such
construction or permits to construct on the Buyer's Property could reduce the
maximum Floor Area of any buildings that may be constructed on the Seller's
Property below the amount that is permitted by such Planned Development Permit
and such Tentative Map. The covenants and restrictions contained in this
paragraph 5(a) shall remain in full force and effect through the Sunset Date.
After the Sunset Date, Seller and all other Seller Owners shall execute and
deliver to Buyer a document in recordable form acknowledging that the covenants
and restrictions contained in this paragraph 5(a) have ceased to be effective.

            (b) Burrowing Owls: Buyer acknowledges that certain parts of the
Buyer's Property may be occupied by Western burrowing owls ("Owls"). Neither
Buyer nor any other Buyer Owner shall, and no Buyer Owner shall permit or suffer
any Tenant of any portion of the Buyer's Property or suffer or permit any agent,
representative, or contractor of such Buyer Owner or any such Tenant to, take or
omit to take any action that could evict any Owls from burrows on the Buyer's
Property during Owl nesting season (from February 1 through August 31). Any
eviction of Owls from burrows during the non-nesting season (from September 1
through


                                      -4-
<PAGE>   48


January 31) may be conducted only upon receipt of formal written approval from
the California Department of Fish and Game (the "Department"). In addition,
Buyer, all other Buyer Owners, and every Tenant of any portion of the Buyer's
Property shall maintain protected areas around Owl burrows within which no
grading, clearing, landscaping, construction or other development activities may
be conducted. During each Owl nesting season (from February 1 through August 31,
or, at the Department's discretion, until any young Owls are foraging
independently), such protected areas shall consist of all areas on the Buyer's
Property within a seventy-five (75) meter (or two hundred fifty (250) foot, if
greater) radius of each Owl burrow located on the Buyer's Property or the
Seller's Property. During the non-nesting season (from September 1 through
January 31, subject to Department modification as described above), such
protected areas shall consist of all areas on the Buyer's Property within a
fifty (50) meter (or one hundred sixty-five (165) foot, if greater) radius of
each Owl burrow located on the Buyer's Property or the Seller's Property. No
grading, clearing, landscaping, construction or other development activities
shall be conducted within any such protected areas without the prior written
approval of the Department. Buyer, all other Buyer Owners, and all Tenants of
any portion of the Buyer's Property shall immediately notify the Department, in
writing, of any violation of the terms or conditions of this paragraph 5(b).

        6. Restrictions on Use:

            (a) Prohibited Uses: Under no circumstance shall any of the Buyer's
Property be developed, improved or used for, nor shall any operations be
conducted upon any of the Buyer's Property, for any of the following purposes:

                (1) residential (including, without limitation, single and
multi-family housing and hotels, inns, shelters and other facilities for
transient occupancy);

                (2) schools or instructional or education facilities or programs
for boys and/or girls of age eighteen (18) years or younger (including, without
limitation, nursery, elementary, middle, secondary and post-secondary schools);

                (3) child care, day care, or facilities or uses of any kind
involving the care, supervision, housing, or education of boys and girls of age
eighteen (18) years or younger;

                (4) hospitals, medical, dental or veterinary clinics and any
other health care facilities;

                (5) nursing homes, assisted living facilities, hospices,
sanitoria, and other elder or senior care facilities; or

                (6) any use prohibited or restricted by any Law that prohibits
or restricts uses within a specified distance of a site where Hazardous
Materials of a type and quantity used for manufacturing or research and
development purposes are present; provided, however, in no event shall this
Section 6(a)(6) be construed to restrict general office, research and
development or manufacturing use.


                                      -5-
<PAGE>   49


            (b) Changed Use of Seller's Property: Notwithstanding the use
restrictions set forth in Section 6(a) hereof, if at any time, all of Seller's
Property has permanently ceased to be used or occupied for industrial,
manufacturing, or research and development purposes, any Buyer Owner shall have
the right to request that one or more of the use restrictions set forth in
Section 6(a) be terminated. No Seller Owner may unreasonably withhold its
consent to such request; provided, however, that no termination of a use
restriction shall be valid unless and until all then-current Seller Owners
consent.

            (c) Hazardous Materials: All Hazardous Materials at any time present
at the Buyer's Property must be used, stored, handled and disposed of in strict
compliance with all laws, rules, regulations, orders and requirements of all
governmental authorities (collectively, "Laws"). For purposes of this Agreement,
"Hazardous Materials" shall mean any substance, material or waste now or
hereafter regulated under any applicable Laws for the protection of health,
safety or the environment.

        7. Construction/Subdivision Obligations:

            (a) Entitlement Process. Buyer acknowledges that (a) the Buyer's
Property has only recently been subdivided from the Seller's Property, (b)
Seller submitted to the City applications dated August 11, 2000 (as amended most
recently by submissions on November 21, 2000 and December 7, 2000) for a PD
Permit and a vesting tentative subdivision map to subdivide the Seller's
Property and the Buyer's Property into five (5) parcels (the "ORIGINAL
APPLICATION"). In order to cause a subdivision creating the Buyer's Property as
a separate legal parcel to be completed by January 30, 2001 so that the Buyer's
Property could be conveyed to Buyer by February 8, 2001, Seller submitted to the
City amendments to the Original Application (the "AMENDED APPLICATION"), which
requested approval of a vesting parcel map creating two separate legal parcels
consisting of the Buyer's Property and the Seller's Property. On January 17,
2001, the City approved the Amended Application, and thereby approved the
vesting tentative parcel map and PD Permit described in the Amended Application.
The parties agree as follows with respect to the land use entitlements for which
application has been made by Seller, and the entitlements that are issued in
response thereto:

                (1) As used herein, the following terms shall have the following
meanings: (i) the term "TENTATIVE MAP PERMIT" (or "TMP") shall each have the
meaning ascribed to it by Exhibit C, and a true copy of the TMP is attached as
Exhibit C-1; (ii) the term "TENTATIVE MAP" (or "TENTATIVE PARCEL MAP") shall
mean the Tentative Vesting Parcel Map approved by the City in connection with
the approval of the TMP on or about January 17, 2001; (iii) the term "FINAL MAP"
shall mean the final Parcel Map recorded January 30, 2001, in Book 736 of Maps,
at pages 30, 31 and 32, in the Official Records of Santa Clara County,
California, which was recorded to implement the Tentative Map and the TMP; and
(iv) the term "PD PERMIT" is defined in Exhibit C, and a true copy is attached
as Exhibit C-2.

                (2) Seller shall have exclusive and complete power and authority
to take all action necessary to implement the Permit Required Improvements (as
that term is


                                      -6-
<PAGE>   50

defined in Section 7(b)(1)) imposed in connection with or authorized by the PD
Permit, the Tentative Map, and the Final Map, including the negotiation and
execution of subdivision agreements, obtaining bonds, and the preparation and
development of design documents for improvements that must be constructed to
implement such Permit Required Improvements. Buyer shall have the right to
reasonably approve any material change to the Subdivision Agreement to which
Seller is a party (subject to Seller's right to obtain extensions of time for
performance pursuant to Section 7(b)(3)) and to any subsequent subdivision or
improvement agreement with the City, which relates to any other Permit Required
Improvements.

                (3) The PD Permit, the TMP, the Final Map, and the Permit
Required Improvements shall not be legally challenged or contested, changed,
modified, or waived without the prior written consent of Seller and Buyer, which
either party may withhold in its sole discretion. Notwithstanding the foregoing,
upon the full and complete performance of all of the Permit Required
Improvements by Seller and Seller's other performance of all of its obligations
under this Section 7, the restrictions set forth in this Section 7(a)(3) shall
terminate.

                (4) Seller has caused or will cause Nolte Associates, Inc.
("Nolte") to submit to the City plans for the street improvements that are part
of the Permit Required Improvements and Component Drive. To the extent the plans
submitted or to be submitted are changed or supplemented during the City
approval process, Seller shall cause Buyer to receive design documents generated
by the City or by Nolte during the plan development process so that Buyer has
the opportunity to review and comment upon the development of the plans for such
improvements. During this plan development process, Buyer may propose changes to
plans, and Seller shall use reasonable efforts to incorporate changes requested
by Buyer in such plans, subject to the following: (i) any change requested by
Buyer must be done at a point in time when it may be implemented without
materially delaying the plan development and approval process; (ii) any change
proposed by Buyer may not materially change the alignment, configuration, or
location of any improvements, and must be consistent with the requirements of
the Final Map, the TMP, and the PD Permit; and (iii) if any change requested by
Buyer has an impact on the cost or schedule to complete the improvements, then
Seller is only obligated to incorporate the requested change if Buyer agrees to
pay any additional cost resulting from the proposed change and so long as Buyer
agrees that Seller shall have such additional time as is needed to incorporate
the change and the change may be completed within the schedule for performance
required by the City. Seller shall have the right to make changes to such plans
so long as such changes (i) are consistent with City requirements for such
improvements and are consistent with the PD Permit, the TMP, and the Final Map,
and (ii) are not materially inconsistent or materially different in scope or
quality than the improvements described by the plans prepared by Nolte and
submitted to the City for such improvements prior to the date of this Agreement.



                                      -7-
<PAGE>   51

            (b) Implementation of Permit Conditions. Regardless of cost, Seller
shall implement (including design, construction, and completion), and pay for
costs and expenses incurred or which must be paid for, all Permit Required
Improvements.

                (1) As used herein, the term "PERMIT REQUIRED IMPROVEMENTS"
shall mean all off-site improvements (such as traffic mitigation measures),
in-tract improvements (such as public streets, private roads, underground
utilities, storm drainage and sanitary sewer lines, and signalization), and
dedications of the Seller's Property, and payment of fees that are required,
imposed or authorized by the City that are listed as "Permit Required
Improvements" on Exhibit C, and the installation of Component Drive in
accordance with the TMP, the Final Map, and the PD Permit.

                (2) The PD Permit authorizes the construction of a private
roadway within the Buyer's Property known as Component Drive. Seller shall at
its cost install Component Drive in accordance with the design permitted by the
PD Permit and as described in the Original Application. Seller shall be
obligated to install landscaping (but not street trees) and irrigation systems
related to Component Drive. The following subsections (a) through (g) shall
govern Component Drive:

                    (a) Buyer shall cooperate with Seller to give Seller (and
its agents, employees, and contractors) such rights of access as are necessary
for the construction of Component Drive (including land for staging, storage,
and temporary locations for fill material or soil to be relocated or removed
from the site as a result of grading). To the extent Buyer is constructing
improvements at the same time Component Drive is being installed, the projects
of Buyer shall be coordinated with Seller's construction of Component Drive so
that interference with either is minimized, and Seller is able to complete its
construction obligations in an orderly and efficient manner and within the time
frames required by this Agreement.

                    (b) In connection with its entry on the Buyer's Property to
construct Component Drive, Seller shall keep the Buyer's Property free and clear
of any mechanic's liens, materialmen's liens or claims arising out of Seller's
activities on the Buyer's Property in connection with such construction. All
work done by Seller in connection with the construction of Component Drive shall
be at Seller's sole cost and expense, shall be done in a workmanlike manner in
accordance with all applicable codes, statutes, ordinances, rules, regulations
and laws. Seller shall be solely responsible for the health and safety of any of
its employees, agents, or contractors who enter the Buyer's Property pursuant to
this Section.

                    (c) Seller shall indemnify, protect, defend by counsel
reasonably acceptable to Buyer, and hold Buyer harmless from and against any and
all costs, expenses, claims, demands, liabilities, damages, losses or liens
(including, without limitation, mechanic's liens), including reasonable
attorneys' fees, arising from or in any fashion related to the entry by Seller
or its representatives on the Buyer's Property pursuant to this Section.


                                      -8-
<PAGE>   52

                    (d) At all times during the construction of Component Drive
or while any of Seller's representatives are on the Buyer's Property for such
purpose pursuant to this Section, Seller shall purchase and maintain and cause
Seller's representatives to purchase and maintain (a) worker's compensation and
occupational disease insurance in statutory minimum amounts, and (b) commercial
general liability and auto liability insurance with a combined single limit of
not less than One Million Dollars ($1,000,000), per occurrence, for bodily
injury, death, property damage, completed operations for at least one year after
completion of Seller's construction of Component Drive, auto and auto
non-ownership, and blanket contractual liability. This liability insurance shall
name Buyer as an additional insured and be issued by an insurance company
reasonably approved by Buyer. Seller shall be responsible for and take all
necessary safety and security precautions relating to the location and
identification of underground utilities that may be affected by the construction
of Component Drive. In this regard, Seller shall promptly repair or have
repaired any damage to such utility services caused by the action of Seller or
Seller's representatives.

                    (e) As soon as Component Drive is substantially completed,
Seller and Buyer shall together inspect such improvements so completed, using
reasonable efforts to discover all uncompleted or defective construction. After
such inspection has been completed, each party shall sign an acceptance
agreement in a form reasonably acceptable to each, which shall include a list of
all "punch list" items which the parties agree are to be corrected by Seller.
Seller shall complete and/or repair such "punch list" items within a reasonable
period of time after executing the acceptance agreement.

                    (f) Seller warrants that Component Drive shall be
constructed substantially in accordance with plans approved by the City and
consistent with the TMP, the Final Map, and the PD Permit, and all applicable
laws in a good and workmanlike manner. The foregoing warranty shall be subject
to, and limited by, the following: (i) once Seller is notified in writing of any
breach of the above-described warranty, Seller shall promptly commence the cure
of such breach and complete such cure with diligence at Seller's sole cost; (ii)
Seller's liability pursuant to such warranty shall be limited to the cost of
correcting the defect for the matter in question, and in no event shall Seller
be liable to Buyer for any damages or liability incurred by Buyer as a result of
such defect or other matter, including without limitation consequential damages;
and (iii) notwithstanding anything contained herein, Seller shall not be liable
for any defect in design or construction which is discovered and of which Seller
receives written notice from Buyer after the first (1st) anniversary of the
recordation of a notice of completion for the work of improvement affected by
the defect. With respect to defects for which Seller is not responsible pursuant
to this section, Buyer shall have the benefit of any construction warranties
existing in favor of Seller that would assist Buyer in correcting such defect.
Upon request by Buyer, Seller shall inform Buyer of all written construction
warranties existing in favor of Seller which affect the construction of
Component Drive. Seller shall cooperate with Buyer in enforcing such warranties
and in bringing any suit that may be necessary to enforce liability with regard
to any defect for which Seller is not responsible pursuant to this Section so
long as Buyer pays all costs reasonably incurred by Seller in so acting. Seller
makes no other express or


                                      -9-
<PAGE>   53


implied warranty with respect to the design, construction or operation of
Component Drive except as set forth in this Section 7(b)(2).

                    (3) As soon as reasonably practicable after the date hereof,
Seller shall commence and use commercially reasonable efforts to diligently and
continuously prosecute to completion the design, approval, construction and/or
implementation of all Permit Required Improvements and the construction of
Component Drive substantially in accordance with the requirements of the City
(excluding requirements related to time for performance or completion date).
Such obligations of Seller shall be extended by events of "Force Majeure"
described in Section 7(b)(4). Seller shall implement and complete all Permit
Required Improvements within the time periods required by the City pursuant to
any Subdivision Agreement or other agreement to which the City is a party that
is adopted or implemented pursuant to the TMP, the PD Permit or the Final Map,
or in implementation of any Permit Required Improvements; provided, however,
that Seller may seek and obtain from the City waivers or extensions of time in
which to perform pursuant to any Subdivision Agreement so long as such waiver or
extension of time is consistent with the obligation of Seller set forth in the
first sentence of this Section. If Buyer's cooperation is required for Seller to
implement any Permit Required Improvements, Buyer shall cooperate reasonably to
permit Seller to implement such Permit Required Improvements, provided that such
cooperation be at Seller's sole cost and expense and Seller shall indemnify,
defend, protect and hold harmless Buyer from any losses, costs, claims,
liabilities or damages in connection therewith.

                    (4) The time period for completion of Permit Required
Improvements or the construction of Component Drive specified in Section 7(b)(3)
shall be extended by any prevention, delay or stoppage due to strikes,
unanticipated or unusual inclement weather, labor disputes, reasonably
unanticipated inability to obtain or delays in obtaining labor, materials,
fuels, or reasonable substitutes therefor, governmental restrictions,
regulations, controls, action or inaction (including, without limitation, delays
in obtaining necessary governmental approvals from the City, CalTrans, or any
other governmental agency having jurisdiction over any of the improvements
required to be constructed), civil commotion, fire or other peril, and other
causes beyond the reasonable control of the party obligated to perform (except
financial inability) ("FORCE MAJEURE"). If an event of Force Majeure occurs, the
party obligated to perform shall be excused from the performance for a period
equal to the period of any such prevention, delay, or stoppage, but only so long
as such party delivers to the other party who is to be benefited by such
performance notice within a reasonable period of time specifying the nature of
the Force Majeure and the estimated duration.

                    (5) The parties acknowledge that the City requires, as part
of the Permit Required Improvements, that Seller (i) pay certain fees and other
amounts immediately as a condition to the recordation of the Final Map, (ii)
enter into a construction or subdivision agreement in which Seller agrees to
perform some or all of the Permit Required Improvements (the "SUBDIVISION
AGREEMENT"), and (iii) provide the City with bonds, letters of credit, or other
security to secure the performance of the subdivider under the Subdivision
Agreement. Buyer shall take such actions and execute such additional documents
as Seller may reasonably require


                                      -10-
<PAGE>   54

to the extent reasonably needed to implement Seller's obligation to satisfy at
Seller's cost all Permit Required Improvements.

                    (6) Intentionally omitted.

                    (7) To the extent any Subdivision Agreement or any of the
Permit Required Improvements require that bonds, letters of credit, or other
security be provided to secure the performance of the subdivider under the
Subdivision Agreement (the "SECURITY REQUIREMENT"), Seller shall take such
action as is necessary to satisfy the Security Requirement and shall pay all
costs associated therewith and shall provide all collateral required by the
provider of the security instrument in order to obtain the security instrument
required to satisfy the Security Requirement.

                    (8) At such time as Seller has fully and completely
performed all of the Permit Required Improvements, upon not less than thirty
(30) days prior written request by Seller, Buyer shall provide a certification,
in recordable form, that, to its knowledge, based on information obtained from
the City, the Permit Required Improvements have been completed. Buyer shall also
provide, upon not less than thirty (30) days prior written request by Seller, an
estoppel certificate in a form reasonably satisfactory to Buyer as to its
knowledge, based on information obtained from the City, as to the state of
completion of the Permit Required Improvements.

                    (9) As more fully set forth in Exhibit C, it is anticipated
that the City will require dedications of the Buyer's Property and the Seller's
Property in connection with the implementation of the Permit Required
Improvements and in accordance with the Final Map, the TMP, and the PD Permit.
As set forth in Exhibit C, each of Buyer and Seller, as applicable, shall cause
the required dedication to be made from the property owned by it or any required
easement to be created and conveyed over the property owned by it, and neither
party shall have the obligation to reimburse the other for the cost to create
such easement or make such dedication, including the loss of use of any land
resulting from the creation of such easement, or the value of any land required
to be so dedicated. Without limiting the generality of the foregoing, it is
anticipated that further dedications will be required in connection with the
re-alignment of Orchard Parkway, certain boundary modifications along North
First Street, and traffic signalization improvements that must be installed
within Component Drive. Notwithstanding the foregoing, this Agreement shall not
obligate Buyer to make any dedication of land which would result in the
reduction of the maximum Floor Area permitted to be constructed on the Buyer's
Property unless (i) the dedication requirement cannot be satisfied by a
dedication of Seller's Property, and (ii) Seller agrees (without the obligation
to do so) either to transfer replacement Floor Area entitlement to Buyer so that
Buyer suffers no net loss of Floor Area entitlement, or (but only if Seller
cannot so transfer replacement Floor Area entitlement to Buyer) pay to Buyer a
fee equal to Two Hundred Six Dollars ($206) per square foot of reduction of
Floor Area directly caused by the required dedication of the Buyer's Property.


                                      -11-
<PAGE>   55

            (c) Remedies and Security. The following provisions shall govern the
remedies of the parties hereto in the event of a default of an obligation
contained in this Section 7:

                (1) A party to this Agreement shall not be in default of any
obligation contained in this Section 7 unless and until such party shall have
failed to perform any such obligation involving the payment of money within five
(5) days after delivery of written notice from the other party specifying such
failure to pay, or, in the case of a failure to perform an obligation that does
not involve the payment of money, such party shall not have cured such failure
to perform within thirty (30) days after written notice from the other party
specifying the nature of such failure where such failure could reasonably be
cured within such thirty (30) day period, or if such failure could not
reasonably be cured within said thirty (30) day period, such party shall have
failed to commence such cure within such thirty (30) day period and thereafter
continue with due diligence to prosecute such cure to completion within such
time period as is reasonably needed to effect the cure.

                (2) In order to provide security to Buyer for the performance of
Seller's obligations pursuant to this Section 7, Seller has delivered to Buyer
and will maintain in effect until Seller has fully performed its obligations
under this Section 7 a performance bond in the principal amount of Eight Million
Dollars ($8,000,000) as security for the performance of Seller's obligations
under this Section 7 (the "BOND"), which meets all of the following conditions:
(i) the Bond is irrevocable and in form reasonably satisfactory to Seller and
Buyer; and (ii) the Bond is drawn upon or issued by a financial institution
reasonably acceptable to Buyer. Buyer shall be entitled to commence action to
enforce the Bond, upon the occurrence of a default by Seller of its obligations
under this Section 7 (after notice and opportunity to cure pursuant to Section
7(c)(1)). To the extent that Buyer receives proceeds from the Bond and the
proceeds are not needed to satisfy Seller's obligations under this Section 7,
Buyer shall hold such cash proceeds that are not so needed in a separate
interest-bearing account as security for the further performance of such
obligations by Seller. Upon full performance of all obligations of Seller under
this Section 7, the Bond (or any cash proceeds resulting from a draw upon the
Bond with any interest earned thereon) shall be returned to Seller. The
obligation to provide a Bond pursuant to this section shall not reduce or
otherwise affect the obligation of Seller to provide Security Instruments
required by the City, nor shall either the Bond or such Security Instruments
limit the personal liability of Seller for the performance of its obligations
under this Agreement, and in the event of default, Buyer may seek recourse
against any security for such obligations or personal liability, or both, in any
order.

                (3) In the event that Seller is in material default of its
obligations under this Section 7, Buyer shall have the right (without the
obligation) to perform, satisfy or fulfill such obligations and to recover from
Seller all costs (including penalties and fees) incurred by Buyer in connection
therewith, which amount shall be due immediately upon written demand therefor
from Buyer to Seller. In this regard, each third party contract to which Seller
is a party that relates to the satisfaction of Permit Required Improvements
(e.g., architects' agreements, sub-consultant agreements, and construction
contracts) shall specifically provide, in form


                                      -12-
<PAGE>   56


reasonably acceptable to Buyer, that upon an event of material default by Seller
of its obligations under this Section 7, and upon demand of Buyer, such
contracts shall be assigned to Buyer to enable Buyer to exercise its self-help
remedy described in this Section. The form and structure of such assignment
provisions shall be consistent with documentation and lending practices of
institutional construction lenders who obtain such rights of assignment in
connection with construction loans made to commercial developers. In the event
Buyer properly seeks the assignment of any such contracts to enable it to
exercise its self-help remedy, Seller shall act reasonably to facilitate the
transfer of such contract rights, and shall be responsible for any damages
incurred by Buyer caused by its failure to do so.

                (4) Buyer shall have the remedies of injunctive relief and
specific performance to compel Seller to perform its obligations under this
Section 7, in addition to any other remedies specifically provided for in this
Section 7.

                (5) IN THE EVENT SELLER IS IN MATERIAL DEFAULT OF AN OBLIGATION
UNDER THIS SECTION 7 REGARDING THE DESIGN, APPROVAL, CONSTRUCTION AND/OR
COMPLETION OF A PHYSICAL IMPROVEMENT (E.G., COMPONENT DRIVE, ORCHARD PARKWAY,
THE 96-INCH STORM DRAIN LINE, AND THE OFF-SITE TRAFFIC MITIGATION MEASURES
DESCRIBED IN THE TMP AND PD PERMIT) (A "CONSTRUCTION DEFAULT"), AND IF BUYER
BECOMES ENTITLED TO AND ELECTS TO EXERCISE BUYER'S SELF-HELP REMEDY SET FORTH IN
SECTION 7(c)(3), THEN, IN ADDITION TO THE REMEDY OF SPECIFIC PERFORMANCE
SPECIFIED IN SECTION 7(c)(4), THE RIGHT TO RECOVER THE COST OF CURING SUCH
DEFAULT AS SPECIFIED IN SECTION 7(c)(3), THE RIGHT TO INTEREST SPECIFIED IN
SECTION 7(c)(6), AND THE RIGHT TO RECOVER ATTORNEYS' FEES PURSUANT TO SECTION
8(e), SELLER SHALL PAY TO BUYER THE AMOUNT OF TEN MILLION DOLLARS ($10,000,000)
AS LIQUIDATED DAMAGES FOR SUCH CONSTRUCTION DEFAULT. THE PARTIES ACKNOWLEDGE
THAT BUYER'S ACTUAL DAMAGES IN THE EVENT OF SUCH CONSTRUCTION DEFAULT BY SELLER
WOULD BE EXTREMELY DIFFICULT OR IMPRACTICAL TO DETERMINE, PARTICULARLY BECAUSE
OF THE POTENTIAL EFFECT SUCH CONSTRUCTION DEFAULT MAY HAVE UPON THE ABILITY OF
BUYER TO UTILIZE OR DISPOSE OF BUYER'S PROPERTY, AND ACCORDINGLY THE PARTIES
AGREE THAT THE AMOUNT SO SPECIFIED AS LIQUIDATED DAMAGES IS A REASONABLE AMOUNT
UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE THIS AGREEMENT IS EXECUTED.
BUYER AND SELLER AGREE THAT BUYER'S RIGHT TO RECOVER SUCH LIQUIDATED DAMAGES IS
IN LIEU OF, AND ACCORDINGLY BUYER HEREBY WAIVES ITS RIGHT TO RECOVER, DIRECT
CONSEQUENTIAL AND PUNITIVE DAMAGES RESULTING FROM SELLER'S CONSTRUCTION DEFAULT;
PROVIDED, HOWEVER, THAT BUYER DOES NOT WAIVE, AND THIS SECTION SHALL NOT AFFECT,
BUYER'S RIGHT TO RECOVER THE COST OF CURING SELLER'S CONSTRUCTION DEFAULT WHICH
BUYER HAS THE RIGHT TO RECOVER PURSUANT TO SECTION 7(c)(3), THE REMEDY OF
SPECIFIC PERFORMANCE SPECIFIED IN SECTION 7(c)(4), BUYER'S RIGHT TO INTEREST DUE
PURSUANT TO


                                      -13-
<PAGE>   57


SECTION 7(c)(6), AND BUYER'S RIGHT TO ATTORNEYS' FEES PURSUANT TO SECTION 8(e).
BY THEIR SEPARATELY EXECUTING THIS SECTION BELOW, BUYER AND SELLER ACKNOWLEDGE
THAT THEY HAVE READ AND UNDERSTOOD THE ABOVE CONCERNING LIQUIDATED DAMAGES, AND
THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF
THIS LIQUIDATED DAMAGES PROVISION AT THE TIME THIS AGREEMENT WAS EXECUTED. IF
FOR ANY REASON THIS SECTION 7(c)(5) CONCERNING LIQUIDATED DAMAGES FOR A
CONSTRUCTION DEFAULT IS DETERMINED TO BE UNENFORCEABLE IN ANY RESPECT BECAUSE OF
A CHALLENGE THERETO BROUGHT BY SELLER, THEN THE WAIVER CONTAINED IN THE
IMMEDIATELY PRECEDING SENTENCE SHALL BECOME VOID AND OF NO EFFECT, AND BUYER
SHALL HAVE ALL RIGHTS AND REMEDIES AVAILABLE AT LAW OR IN EQUITY AS A RESULT OF
SELLER'S CONSTRUCTION DEFAULT, INCLUDING THE RIGHT TO RECOVER DIRECT,
CONSEQUENTIAL, AND PUNITIVE DAMAGES RESULTING FROM ANY SUCH CONSTRUCTION
DEFAULT.


-----------------------                       --------------------

-----------------------                       --------------------
   BUYER'S INITIALS                            SELLER'S INITIALS
-----------------------                       --------------------

                (6) Except where otherwise provided in this Section 7, whenever
one party owes an amount to the other party pursuant to this Section 7, such
amount shall be due within ten (10) days after written demand therefor,
accompanied by reasonable documentary evidence therefor. To the extent any
amount due under this Section 7 is not paid when due, the delinquent party shall
also pay interest on the amount so delinquent from its due date until paid at a
rate of interest equal to the lesser of (i) the maximum permissible rate of
interest allowed by California law, or (ii) an annual rate of interest equal to
four (4) percentage points over the prime rate of interest then published by The
Wall Street Journal from time to time.

            (d) Survival. The provisions of this Section 7 are intended to be
covenants running with the land; provided, however, that notwithstanding any
subsequent sale of the Seller's Property or any part thereof by Seller, Seller
shall remain personally liable for the performance of all obligations set forth
in this Agreement, including all provisions of this Section 7. Notwithstanding
the foregoing, upon the full and complete performance of all of the Permit
Required Improvements by Seller and Seller's other performance of all of its
obligations under this Section 7, (i) the provisions of this Section 7 shall
cease running with the land, and (ii) Buyer and all other Buyer Owners shall
execute and deliver to Seller a document in recordable form acknowledging that
the covenants and restrictions of Seller contained in this Section 7 have ceased
to be effective.

        8. Compliance with PD Permit. Neither Seller nor any other Seller Owner
nor Buyer nor any other Buyer Owner shall, nor shall any Seller Owner or Buyer
Owner permit any


                                      -14-
<PAGE>   58


of its Tenants to, take any action, or fail to take any action, which would
cause the revocation, termination, or suspension of effectiveness of the PD
Permit.

        9. Use of Component Drive. Seller and Buyer acknowledge that the Final
Map contains a "Covenant of Easement" that creates an easement over Component
Drive for ingress for the benefit of the Buyer's Property and the Seller's
Property (the "Component Drive Easement"). The City has required the creation of
this easement to provide traffic circulation to mitigate the effects of traffic
to be generated by the development of the Buyer's Property and the Seller's
Property, which traffic mitigation measure is a prerequisite to further
discretionary land use approvals that may be required by the owner of the
Buyer's Property or the owner of the Seller's Property. To implement the purpose
of the Component Drive Easement, Buyer agrees as follows: (i) except as
otherwise specifically provided by this Section, Buyer shall be responsible for
the operation, maintenance, repair, and replacement of Component Drive following
its completion; (ii) the design, alignment, and configuration of Component
Drive, as it exists following its completion by Seller, shall not be materially
changed or altered without the consent of Seller, which consent shall not be
unreasonably withheld; (iii) no gate, control device, or other barrier shall be
erected along any part of Component Drive and the Component Drive Easement shall
provide unrestricted access from the public street known as Orchard Parkway to
the public street known as North First Street and vice versa, (iv) the Component
Drive Easement may not be terminated or changed without the consent of Seller,
and (v) to the extent the City requires any modification of the Component Drive
easement to implement its original purpose of providing traffic circulation
benefiting both the Buyer's Property and the Seller's Property as a traffic
mitigation measure imposed to permit the entitlement for the Floor Area
permitted on the Buyer's Property and the Seller's Property, Seller and Buyer
shall take such action as is reasonably requested by the City to implement such
change to the extent necessary to protect the Floor Area entitlement allocated
to the Buyer's Property and the Seller's Property; provided, however, that if
the change is precipitated by a land use approval application, the applicant for
such approval shall pay the cost of implementing the change, and otherwise such
cost shall be equitably shared by Seller and Buyer.

        10. Miscellaneous:

            (a) Constructive Notice and Acceptance: Every person who now or
hereafter owns, occupies or acquires any right, title or interest in or to any
portion of the Buyer's Property shall conclusively be deemed to have consented
and agreed to every covenant, condition and restriction contained herein,
whether or not any reference to this Agreement is contained in the instrument by
which such person acquired an interest in the Buyer's Property.

            (b) Rights of Mortgagee: No breach of this Agreement, or any
enforcement thereof, shall defeat or render invalid the lien of any mortgage or
deed of trust now or hereafter executed upon any land subject to this Agreement;
provided, however, that if any portion of the Buyer's Property or the Seller's
Property is sold under a foreclosure of any mortgage or under the provisions of
any deed of trust, any purchaser at such sale and its successors and assigns
shall hold any and all property so purchased subject to the terms of this
Agreement.


                                      -15-
<PAGE>   59

            (c) General Declaration: Buyer and Seller hereby declare and agree
that (i) the Buyer's Property shall be conveyed, encumbered, leased, and
otherwise used subject to this Agreement, and (ii) the agreements set forth
herein shall be "covenants running with the land" burdening each portion of the
Buyer's Property for the benefit of each portion of Seller's Property the
burdens of which shall be binding upon each Owner and Tenant of each portion of
the Buyer's Property, and their respective successors and assigns, for the
benefit of each Owner of each portion of Seller's Property, and its successors
and assigns.

            (d) Equitable Relief: To the fullest extent permissible by Law and
without limiting any other rights or remedies that may be available to Seller or
any other Seller Owner pursuant to this Agreement, Seller and all other Seller
Owners shall be entitled, as a matter of right, to specific performance and
other equitable relief to protect their interests, including, without
limitation, preliminary and permanent injunctive relief. Buyer and all other
Buyer Owners hereby consent to the issuance by any court of competent
jurisdiction of both temporary and permanent injunctions in the event of such
breach or threatened breach restraining and prohibiting Buyer and all other
Buyer Owners, and their respective Tenants, agents, representatives and
contractors, from violating any of the provisions of this Agreement.

            (e) Attorneys' Fees: If any party(ies) hereto, or bound hereby,
commences an action against any other such party(ies) arising out of or in
connection with this Agreement, the prevailing party(ies) shall be entitled to
recover from the losing party(ies) reasonable attorneys' fees and costs of suit.
The term "prevailing party" shall include a party who obtains legal counsel or
brings an action against the other by reason of the other's breach or default
and obtains substantially the relief sought, whether by compromise, settlement
or judgment.

            (f) Counterparts: This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall comprise but a single instrument.

            (g) Notices: All notices required or permitted by this Agreement
shall be given in writing, and served by personal delivery or by United States
Express Mail or similar courier delivery service, or by United States registered
or certified mail. Notices by personal delivery shall be deemed given when
received. Notices by United States Express Mail or courier delivery service
shall be deemed given when received. Notices by United States registered or
certified mail shall be deemed given on the date shown on the return receipt or,
if no date is shown, then four (4) business days after mailing. Notices shall be
addressed as set forth below, but any Owner may change its address by giving
written notice thereof to each other Owner in accordance with the provisions of
this paragraph. If any Owner has not notified another Owner of its address for
notices, then such non-notified Owner may deliver notices to the address of the
Owner of record of the parcel in question at the most recent address maintained
by the County Tax Assessor's Office for the owner of record for such parcel. The
address for notices (i) for Seller is 10 N. Martingale Road, Suite 550,
Schaumburg, IL 60173, Attn: Real Estate Department, with a copy to 395 Page Mill
Road, Palo Alto, CA 94306, Attn: Legal Department (Real Estate) and (ii) for
Buyer is ABN AMRO Leasing, Inc., 135 South LaSalle Street, Suite


                                      -16-
<PAGE>   60

740, Chicago, IL 60603, Attn: General Counsel, with a copy to BEA Systems, Inc.,
2315 North First Street, San Jose, CA 95131, Attn: Real Estate Department.

        11. Choice of Law; Severability: This Agreement shall in all respects be
governed by and construed in accordance with the laws of the State of
California. If any provisions of this Agreement shall be invalid, unenforceable,
or ineffective for any reason whatsoever, all other provisions hereof shall be
and remain in full force and effect.

                             [SIGNATURES TO FOLLOW.]



                                      -17-
<PAGE>   61


        IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.

                                            SELLER:

                                            AGILENT TECHNOLOGIES, INC.,
                                            a Delaware corporation


                                            By:_________________________________

                                            Name:_______________________________

                                            Title:______________________________



                             [SIGNATURES CONTINUE.]



                                      -18-
<PAGE>   62


                                            BUYER:

                                            ABN AMRO Leasing, Inc.,
                                            an Illinois corporation


                                            By:_________________________________

                                            Name:_______________________________

                                            Title:______________________________


                                      -19-
<PAGE>   63


State of _____________________) ss.
County of ___________________)


        On , 2001, before me, ________________________________, Notary Public,
personally appeared ___________________________________________________,
personally known to me or proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.


WITNESS my hand and official seal.


------------------------------
Signature of Notary



                                      -20-
<PAGE>   64

State of _____________________) ss.
County of ___________________)


        On , 2001, before me, ________________________________, Notary Public,
personally appeared ___________________________________________________,
personally known to me or proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.


WITNESS my hand and official seal.


-------------------------------
Signature of Notary




                                      -21-
<PAGE>   65


                                    EXHIBIT A

                                Seller's Property



        All that certain property in the City of San Jose, County of Santa
Clara, State of California, described as follows:

        All of Parcel 1 as shown on that certain Map, entitled "Parcel Map",
which Map was filed for record in the Office of the Recorder of the County of
Santa Clara, State of California, on January 30, 2001, in Book 736 of Maps, at
pages 30, 31 and 32.



                                      -22-
<PAGE>   66


                                    EXHIBIT B

                                Buyer's Property



        All that certain property in the City of San Jose, County of Santa
Clara, State of California, described as follows:

        All of Parcel 2 as shown on that certain Map, entitled "Parcel Map",
which Map was filed for record in the Office of the Recorder of the County of
Santa Clara, State of California, on January 30, 2001, in Book 736 of Maps, at
pages 30, 31 and 32.



                                      -23-
<PAGE>   67



                                    EXHIBIT C

                   TENTATIVE MAP PERMIT, FINAL MAP, PD PERMIT,
                        AND PERMIT REQUIRED IMPROVEMENTS

        1. Tentative Map Permit: As used in the foregoing Agreement, the terms
"Tentative Map Permit" and "TMP" shall mean that Tentative Map Permit bearing
File No. PT00-08-106 issued and approved January 17, 2001, a copy of which is
attached as Exhibit C-1.

        2. Final Map: As used in the foregoing Agreement, the term "Final Map"
shall mean that Parcel Map recorded January 30, 2001, in the Official Records of
Santa Clara County, California, in Book 736 of Maps, at pages 30, 31 and 32.

        3. PD Permit: As used in the foregoing Agreement, the term "PD Permit"
shall mean that Planned Development Permit bearing File No. PD00-08-063,
approved and issued January 18, 2001 by the City of San Jose, a copy of which is
attached as Exhibit C-2.

        4. Permit Required Improvements: As used in the foregoing Agreement, the
term "Permit Required Improvements" shall mean the obligations or actions to be
performed by Seller that are described by the following Sections 4.B and 4.C
made part of this Section 4 (with reference to the indicated Conditions of
either the Tentative Map Permit or the PD Permit), but subject to the
limitations contained in Section 4.A:

            A. Limitations: The scope of the Permit Required Improvements to be
constructed or implemented by Seller shall be limited by the following:

                (1) Wherever in Section 4.B or 4.C there is a reference to
"General Requirement", it is intended to mean that (i) Seller shall comply with
such "General Requirement" in connection with its construction of the physical
improvements it is required to construct as part of the Permit Required
Improvements only if and to the extent the City requires compliance as a
condition to the construction of such physical improvements that are part of the
Permit Required Improvements; and, (ii) such "General Requirement" will or may
be imposed in connection with any future land use approval or permit sought by
either the owner of the Buyer's Property or the owner of Seller's Property with
respect to construction of buildings and other improvements in the future (e.g.,
a PD permit or a site development permit for buildings on either property), and
that the applicant for such approval will be responsible for complying with such
"General Requirement" at its cost without reimbursement from Seller (except to
the extent Seller is the applicant for such future land use approval for the
development of improvements on property owned by it).

                (2) Wherever in Section 4.B or 4.C of this Exhibit it is stated
that "each of Seller and Buyer shall cooperate and make dedications or grant
easements required of it to implement the purpose of this Condition" (or words
of similar import), it is intended to mean that if further dedications or
easements are required by the City to be conveyed affecting either


                                      -24-
<PAGE>   68


the Buyer's Property and/or Seller's Property to implement the purpose of the
Condition in question, then Seller and/or Buyer, as applicable, shall cause the
required dedication to be made from the property owned by it or the required
easement to be created and conveyed over the property owned by it, and neither
party shall have the obligation to reimburse the other for the cost to create
such easement or make such dedication, including the loss of use of any land
resulting from the creation of such easement, or the value of any land required
to be so dedicated (subject to the limitation contained in the last sentence of
Section 7(b)(9) of the foregoing Agreement).

                (3) Where a condition of the Tentative Map Permit or the PD
Permit is specifically made an obligation of Buyer by Section 4.B or 4.C of this
Exhibit, it shall be excluded from the Permit Required Improvements and shall be
an obligation of Buyer (or any subsequent owner of the Buyer's Property).

            B. Tentative Map Permit (the following paragraph references are to
the enumerated conditions stated in the Tentative Map Permit):

                (1) Improvements: Seller shall construct the improvements
described by Condition 1 of the TMP.

                (2) Improvement Contract: Seller shall comply with Condition 2
of the TMP.

                (3) Public Use Easements: Seller shall make the dedications
required by Condition 3 of the TMP; provided, however, that if further
dedications are required affecting the Buyer's Property or Seller's Property,
each of Seller and Buyer shall cooperate in making any dedication or grant of
easement required to implement the Final Map and the PD Permit.

                (4) Conveyance of Easements: Seller shall comply with Condition
4 of the TMP by making the required conveyance of easements; provided, however,
that if further easements are required to be created and conveyed affecting the
Buyer's Property and/or Seller's Property, then each of Seller and Buyer shall
cooperate to make any dedication or grant of easement required by this Condition
4.

                (5) Sewage Treatment Demands: Condition 5 of the TMP is a
General Requirement.

                (6) Distribution Facilities: Seller shall comply with Condition
6 of the TMP to the extent the City requires that such facilities be installed
in Orchard Parkway, Component Drive, or any public utility easement that is
created in connection with the Final Map. Condition 6 of the TMP shall not be
construed to obligate Seller or Buyer to put underground the existing
above-ground electric power lines generally located along the alignment of
proposed Component Drive, or any other existing above-ground electrical
facilities.


                                      -25-
<PAGE>   69

                (7a) Storm Drainage, Sewer Fees: With respect to Condition 7a of
the TMP, Seller shall pay storm drainage area fees imposed by the City in
connection with the implementation of the Final Map, and Seller shall receive
the benefit of all credits associated with the installation of storm drainage
facilities; provided, however, that to the extent such credits exceed all storm
drainage area fees, sanitary sewer connection fees, and sewer treatment plant
fees that Seller is obligated to pay with respect to the Permit Required
Improvements, then such excess credits shall be shared by Buyer and Seller in
proportion to the Floor Area built or permitted to be built on the Buyer's
Property and Seller's Property if and to the extent the City will permit the
reallocation of such net credits. All sanitary sewer connection fees and sewage
treatment plant fees not required by the City to be paid as a condition to the
construction of the Permit Required Improvements shall be paid by the applicant
for any land use approval for the development of buildings on the Buyer's
Property or Seller's Property, to the extent they relate to the improvements for
which the applicant seeks such approval.

                (7b) Soils Report: Seller shall comply with Condition 7b of the
TMP to the extent it relates to the installation of Orchard Parkway, Component
Drive, or any other street improvements otherwise required of Seller as a Permit
Required Improvement.

                (7c) Grading Permit: Condition 7c is a General Requirement.

                (7d) Tentative Map: Seller shall cause the Final Map to satisfy
Condition 7d of the TMP.

                (7e) Storm: Seller shall cause the Final Map to satisfy the
requirements of Condition 7e of the TMP. In addition, Seller shall be
responsible for the construction of the 96" diameter storm drain pipe described
in Condition 7e of the TMP.

                (7f) Abandonment: Seller shall comply with Condition 7f of the
TMP.

                (7g) Street Improvements: Seller shall be responsible for
constructing all improvements described in Condition 7g of the TMP, and for
making such dedications as are required to implement this requirement; provided,
however, that if after Closing any dedication is required by this Condition 7g
and it affects either the Buyer's Property or Seller's Property, then each of
Seller and Buyer shall cooperate in making such dedication or grant of easement
necessary to satisfy such Condition 7g.

                (7h) North San Jose Deficiency Plan Fee: It is anticipated that
the fee described in Condition 7h of the TMP will be payable, and shall be
payable by, the Owner of the Buyer's Property or the Owner of the Seller's
Property, as applicable, in connection with an application for a land use
approval for the development of buildings on the property affected. However, if
the City imposes such fee in connection with the implementation of the Final
Map, the TMP, or the PD Permit as it relates to the Permit Required
Improvements, such fee shall be allocated between the Owner of the Buyer's
Property and the Owner(s) of the Seller's Property in proportion to the Floor
Area entitlements for such properties.


                                      -26-
<PAGE>   70

                (7i) Stormwater Management: Condition 7i of the TMP is a General
Requirement.

                (7j) Conceptual Alignment of Street: Seller shall comply with
Condition 7j of the TMP; provided, however, that if any street that is part of
the Permit Required Improvements needs to be realigned at the requirement of the
City, and any further dedication or adjustment of boundaries is required to
implement such realignment, then each of Seller and Buyer shall cooperate to
make such dedication of land from the Buyer's Property and Seller's Property as
is necessary to implement such realignment.

                (7k) Private Driveway: Seller shall comply with Condition 7k of
the TMP, to the extent a driveway is shown on the Final Map.

                (7l) Construction Agreement: Seller shall comply with Condition
7l of the TMP.

                (7m) Landscaped Median Island: Seller shall comply with
Condition 7m of the TMP.

                (8) Street Trees: Seller shall comply with Condition 8 of the
TMP to the extent it affects any frontage along, or the median strip within,
Orchard Parkway, or Atmel Way. Buyer shall be responsible for complying with
this requirement to the extent it is applicable to Component Drive (and in this
regard, Seller is responsible for irrigation systems and landscaping, but not
street trees, required along Component Drive).

                (9) Conformance With Other Permits: Condition 9 of the TMP is a
General Requirement.

                (10) Expiration of Permit: Condition 10 of the TMP is a General
Requirement.

                B. PD Permit (the following paragraph references are to the
enumerated conditions stated in the PD Permit):

                (1) Sewage Treatment Demand: Condition 1 of the PD Permit is a
General Requirement.

                (2) Permit Expiration: Condition 2 of the PD Permit is a General
Requirement.

                (3) Conformance with Plans: Condition 3 of the PD Permit is a
General Requirement.

                (4) Revocation: Condition 4 of the PD Permit is a General
Requirement.


                                      -27-
<PAGE>   71


                (5) Conformance with Municipal Code: Condition 5 of the PD
Permit is a General Requirement.

                (6) Acceptance: Seller shall comply with Condition 6 of the PD
Permit.

                (7) Planned Development District Effectuated: Condition 7 of the
PD Permit is a General Requirement.

                (8) Construction Hours: Condition 8 of the PD Permit is a
General Requirement.

                (9) Landscaping: Condition 9 of the PD Permit is a General
Requirement. However, Seller shall be responsible for the installation of
landscaping (other than street trees if required by the City) relating to the
installation of Component Drive.

                (10) Certification: Condition 10 of the PD Permit is a General
Requirement.

                (11) Discretionary Review: Condition 11 of the PD Permit is a
General Requirement.

                (12) Lighting: Condition 12 of the PD Permit is a General
Requirement.

                (13) Refuse: Condition 13 of the PD Permit is a General
Requirement.

                (14) Utilities: Condition 14 of the PD Permit is a General
Requirement; provided, however, that neither Seller nor Buyer shall be
responsible, and Condition 14 shall not be construed to mean that either Buyer
or Seller is responsible, for the undergrounding of the existing high-tension
power lines generally following the course of Component Drive existing on the
Buyer's Property as of the date of the foregoing Agreement.

                (15) Outside Storage: Condition 15 of the PD Permit is a General
Requirement.

                (16) Sign Approval: Condition 16 of the PD Permit is a General
Requirement.

                (17) Hazardous Materials Storage: Condition 17 of the PD Permit
is a General Requirement.

                (18) Fire Flow: Condition 18 of the PD Permit is a General
Requirement.


                                      -28-
<PAGE>   72


                (19) Fire Hydrants: Condition 19 of the PD Permit is a General
Requirement; provided, however, that Seller shall use reasonable efforts to
coordinate the development of Component Drive with Buyer to permit Buyer to
efficiently comply with the requirements of Condition 19 to the extent it
applies to improvements to be constructed by Buyer on the Buyer's Property.

                (20) Fire Hydrants and Driveways: Condition 20 of the PD Permit
is a General Requirement.

                (21) Fire Lanes: Condition 21 of the PD Permit is a General
Requirement.

                (22) Emergency Vehicle Accessibility: Condition 22 of the PD
Permit is a General Requirement.

                (23) Tree Removals: Condition 23 of the PD Permit is a General
Requirement.

                (24) Public Works Clearance: Condition 24 of the PD Permit
generally requiring a Development Clearance from the Public Works Department is
a General Requirement; provided, however, that the sub-conditions described in
subparagraphs 24(a) - (p) shall be addressed as specified in this Exhibit.

                    (a) Storm Drainage, Sewer Fees: Condition 24(a) of the PD
Permit shall be addressed in the same manner as Condition 7a of the TMP.

                    (b) Municipal Water Fees: With respect to Condition 24(b) of
the PD Permit, this is a General Requirement (i.e., Seller is only required to
pay those Major Water Facilities Fees that are required to be paid by the City
as a condition to the construction of the street improvements and off-site
traffic mitigation improvements that Seller is required to construct as part of
the Permit Required Improvements).

                    (c) Soils Report: Condition 24(c) of the PD Permit is a
General Requirement.

                    (d) Grading Permit: Condition 24(d) of the PD Permit is a
General Requirement.

                    (e) Reclaimed Water: Condition 24(e) of the PD Permit is a
General Requirement.

                    (f) Flood Elevation Certificate: Condition 24(f) of the PD
Permit is a General Requirement.


                                      -29-
<PAGE>   73


                    (g) Grading and Drainage Plan: Condition 24(g) of the PD
Permit is a General Requirement; provided, however, that Seller shall construct
the 96-inch diameter storm drainpipe along the project frontage on Orchard
Parkway to the satisfaction of the Director of Public Works as required by this
Condition as part of the Permit Required Improvements.

                    (h) Reclaimed Water Irrigation Systems: Condition 24(h) of
the PD Permit is a General Requirement.

                    (i) Street Improvements: Seller shall, as part of the Permit
Required Improvements, construct all improvements described by Condition 24(i)
of the PD Permit and make the dedication required by subparagraph (4) thereof;
provided, however, that each of Seller and Buyer shall cooperate and make
dedications required of it to implement the purpose of this Condition.

                    (j) Landscaped Median Island: Seller shall construct the
improvements required by Condition 24(j) of the PD Permit.

                    (k) Street Trees: Seller shall comply with Condition 24(k)
of the PD Permit; provided, however, that Seller shall not be responsible for
the installation of street trees along the frontage of Component Drive.

                    (l) North San Jose Deficiency Plan Fee: Condition 24(l) of
the PD Permit shall be addressed in the same manner as Condition 7h of the TMP.

                    (m) Storm Water Management: Condition 24(m) of the PD Permit
is a General Requirement.

                    (n) Conceptual Alignment of Street: Seller shall comply with
Condition 24(n) of the PD Permit; provided, however, that each of Seller and
Buyer shall cooperate and make dedications required of it to implement the
purpose of this Condition.

                    (o) Private Driveway: Seller shall comply with Condition
24(o) of the PD Permit.

                    (p) Construction Agreement: Condition 24(p) of the PD Permit
is a General Requirement.

                (25) Building Clearance for Issuing Permits: Condition 25 of the
PD Permit is a General Requirement.

                (26) Street Cleaning and Dust Control: Condition 26 of the PD
Permit is a General Requirement.


                                      -30-
<PAGE>   74

                (27) Burrowing Owl Habitat: Condition 27 of the PD Permit is a
General Requirement; provided, however, that to the extent the foregoing
Agreement specifically set forth rights and responsibilities of Seller and Buyer
with respect to the subject of burrowing owls and any mitigation plan relating
to burrowing owls, such agreements shall govern their respective rights and
responsibilities and not be modified by this Exhibit.

                (28) Archeology: Condition 28 of the PD Permit is a General
Requirement.

                (29) Anti-Graffiti: Condition 29 of the PD Permit is a General
Requirement.


                                      -31-
<PAGE>   75

                                   EXHIBIT 3.5

                   FORM OF TELECOMMUNICATIONS UTILITY EASEMENT



        Recording requested by
        and when recorded return to:

        Wilson Sonsini Goodrich & Rosati
        650 Page Mill Road
        Palo Alto, California 94304-1050
        Attn.: Real Estate Department/SPR


                               EASEMENT AGREEMENT

        THIS EASEMENT AGREEMENT (this "Agreement") is made as of ___________,
2001, by and between __________________, a _______________ ("Grantor") and
Agilent Technologies, Inc., a Delaware corporation ("Grantee").

                                R E C I T A L S:

        A. Grantor is the owner of real property located in the City of San
Jose, County of San Jose, State of California, more particularly described on
Exhibit A attached hereto and incorporated by reference herein ("Grantor's
Property").

        B. Grantee is the owner of certain real property located in the City of
San Jose, County of Santa Clara, State of California, adjacent to Grantor's
Property ("Grantee's Property"). Grantee's Property is more particularly
described on Exhibit B attached hereto and incorporated by reference herein.

        C. Grantor and Grantee desire that Grantor grant to Grantee an easement
over a portion of Grantor's Property, as described herein.

        NOW THEREFORE, in consideration of good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged by the parties hereto,
Grantor and Grantee agree as follows:

        1. Grantor Grant of Easement. Grantor hereby grants to Grantee an
easement in perpetuity over, across and through that portion of Grantor's
Property described on Exhibit C attached hereto (the "Easement Area") to
construct, install, maintain, operate, inspect, repair, replace and remove
underground telecommunications, electricity and other utilities and services,
including,


<PAGE>   76

but not limited to, conduits, cables, wires and other facilities, and such
aboveground structures, equipment and improvements as may be required in
connection therewith (the "Improvements") by Grantor and its agents, employees,
representatives, contractors, tenants, licensees and invitees. Such easement
shall encumber Grantor's Property and shall benefit and be appurtenant to
Grantee's Property. Grantor's Property and Grantee's Property may be referred to
herein from time to time individually as "Property" and collectively as
"Properties." Grantor grants to Grantee the express right to trim such trees and
other foliage and to cut such roots in the Easement Area as may be necessary for
the protection of the Improvements and the use thereof. Grantee shall retain
title to the Improvements. The easement granted hereunder shall be unaffected by
any change in use, whether such change is in the nature of use or the intensity
of use, of the benefited land or any portion thereof.

        2. Maintenance. Grantee shall maintain the Improvements in a neat, safe
and secure manner. For the purpose of maintaining, and installing, repairing, or
replacing Improvements in, the Easement Area, Grantee shall have reasonable
access to portions of the Grantor's Property outside the Easement Area. Grantor
shall maintain the portion of Grantor's Property upon which the easement herein
has been granted in good condition and repair.

        3. Above-Ground Improvements. To the extent feasible, Improvements
installed in the Easement Area shall be installed underground. Any above-ground
Improvements shall be limited to those that cannot be feasibly located
underground at commercially reasonable cost (e.g., vents, accessways, meters),
including without limitation facilities that are required to be located
above-ground by any governmental entity or utility service provider. Such
above-ground Improvements installed by Grantee shall not materially interfere
with Grantor's use of the Easement Area for parking areas and roadways, or
materially impair Grantor's ability to maintain landscaping thereon.

        4. Other Uses of Easement Area. Grantor may make uses of the Easement
Area which do not materially interfere with or materially increase the cost of
utilization of the Easement Area by Grantee for the uses permitted by this
Easement Agreement. Such permitted uses include the installation of landscaping,
driveways, and parking areas in the Easement Area, and the installation of
below-ground utility conduits, cables, wires, pipes, lines and other facilities
to the extent such below ground facilities are consistent with the preceding
sentence. No buildings, storage facilities, loading docks, waste disposal
facilities (except for sewer and storm drain facilities) or other structures may
be located or constructed within the Easement Area. Grantee and Grantor shall
use reasonable efforts to coordinate the design and installation of facilities
that each is entitled to install within the Easement Area so that such usage can
be done in a manner that is compatible and consistent with the limitations
contained in this Easement Agreement.

        5. Term. The covenants and obligations set forth in this Agreement shall
be perpetual and shall continue in full force and effect from the date of
recordation hereof. Non-use or limited use of the easement shall not prevent
Grantee from later making full use of the easement or constitute an abandonment
or operate to terminate this Agreement. If all or any portion of the Easement
Area or Improvements thereon is taken by condemnation or eminent domain or
transfer in lieu thereof, then, as of the date of the taking, with regard to the
portion of the Easement Area so


                                      -2-
<PAGE>   77


taken, this Agreement shall cease, the provisions of this Agreement with respect
thereto shall be null and void and of no further force or effect and Grantee
shall be entitled to a share of any proceeds thereof allocable to Grantee's
interest hereunder, including lost good will, relocation costs and the
unamortized value of the Improvements.

        6. Covenants Run with Land. All of the provisions, agreements, rights,
powers, covenants, conditions and obligations contained in this Agreement shall
be binding upon and shall inure to the benefit of each of the parties and their
respective heirs, successors, assigns, devisees, administrators and
representatives, and all other persons acquiring all or any portion of one or
more of the Properties. All of the provisions of this Agreement shall be
covenants running with the land pursuant to any and all applicable laws. Each
covenant with respect to the Easement Area runs with both Properties and shall
benefit or be binding upon each successive owner of the Properties,
respectively, during the period of ownership of all or any portion of one or
more of the Properties.

        7. Negation of Partnership. None of the terms or provisions of this
Agreement shall be deemed to create a partnership between the parties, nor shall
this Agreement cause the parties to be considered or deemed to be joint
venturers or members of any joint enterprise. This Agreement is not intended,
nor shall it be construed, to create any third party beneficiary rights in or
for the benefit of any person who is not a party hereto, except as otherwise
expressly provided to the contrary in this Agreement.

        8. Adjustment in Easement Area. It is the intention of the parties that
the Easement Area will run parallel to the southern boundary of a private drive
to be installed on Grantor's Property to connect North First Street and Orchard
Parkway to be known as Component Drive ("Component Drive"), as shown on the
parcel map referred to in Exhibit A that constitutes Grantor's Property as a
legal parcel (the "Final Map"). If Grantee, in installing Component Drive,
adjusts the course of Component Drive from that shown on the Final Map, Grantee
will cooperate with Grantor reasonably, at Grantor's sole cost, in realigning
the Easement Area along the adjusted boundary of Component Drive in a manner
reasonably acceptable to Grantor and Grantee.

        9. Miscellaneous. All exhibits attached hereto are incorporated by this
reference as if fully set forth herein. This Agreement, including the exhibits
and attachments hereto, constitute the entire agreement between the parties
hereto relative to the subject matter hereof. Any and all prior discussions,
negotiations, and understandings relating thereto are hereby merged herein. This
Agreement cannot be amended, modified, revised or terminated orally, but only by
a writing signed by the then-owners of record of the Properties; provided,
however, that the then-owner of record of any of the Grantee's Property may,
without the written agreement of the then-owner of record of the Grantor's
Property, quitclaim its interest in this Agreement as to any portion of the
Grantee's Property owned at such time by such owner. Headings set forth in this
Agreement are intended for the ease of reference only. The invalidation of any
of the provisions contained in this Agreement, or of the application thereof to
any person by judgment or court order, shall in no way affect any of the other
provisions hereof, or the application thereof to any other person, and the same
shall remain in full force and effect to the maximum extent possible. In the
event of any controversy, claim or dispute concerning the interpretation or
enforcement of any of the provisions of this Agreement or


                                      -3-
<PAGE>   78


the breach of any provision of this Agreement, the prevailing party shall be
entitled to recover reasonable attorneys' fees, expenses and costs. This
Agreement shall be governed by and interpreted in accordance with the laws of
the State of California. Grantee shall have the right to record this Agreement
in the land records of the County in which Grantor's Property is located.

        IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
as of the date and year first above written.

                                            GRANTEE:

                                            AGILENT TECHNOLOGIES, INC.,
                                            a Delaware corporation

                                            By _________________________________

                                            Name _______________________________

                                            Its ________________________________

                                    [SIGNATURE MUST BE ACKNOWLEDGED]

                                            GRANTOR:

                                            ___________________________,

                                            a _____________________

                                            By _________________________________

                                            Name _______________________________

                                            Its ________________________________

                                    [SIGNATURE MUST BE ACKNOWLEDGED]


                                      -4-

<PAGE>   79


                                    Exhibit A

                               GRANTOR'S PROPERTY

        All that certain property in the City of San Jose, County of Santa
Clara, State of California, described as follows:

        All of Parcel 2 as shown on that certain Map, entitled "Parcel Map",
which Map was filed for record in the Office of the Recorder of the County of
Santa Clara, State of California, on January 30, 2001, in Book 736 of Maps, at
pages 30, 31 and 32.



                                      -5-
<PAGE>   80



                                    Exhibit B

                               GRANTEE'S PROPERTY

        All that certain property in the City of San Jose, County of Santa
Clara, State of California, described as follows:

        All of Parcel 1 as shown on that certain Map, entitled "Parcel Map",
which Map was filed for record in the Office of the Recorder of the County of
Santa Clara, State of California, on January 30, 2001, in Book 736 of Maps, at
pages 30, 31 and 32.



                                      -6-
<PAGE>   81



                                    Exhibit C

                                  EASEMENT AREA





                                      -7-
<PAGE>   82

                                   EXHIBIT 6.2

                             DUE DILIGENCE MATERIAL


1.      Draft Vesting Tentative Subdivision Map

2.      Draft PD Permit

3.      Preliminary Title Report dated December 27, 2000

4.      Phase I Environmental Assessment

5.      Draft ALTA Survey

6.      Draft Owl Mitigation Agreement

7.      Owl Survey

8.      Draft CC&Rs


<PAGE>   83


                                  EXHIBIT 8.1.1

                               FORM OF GRANT DEED


RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:




MAIL TAX STATEMENTS TO:




                                   GRANT DEED

        FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
Agilent Technologies, Inc., a Delaware corporation ("GRANTOR") hereby grants to
_____________________, a ____________________, that certain property (the
"PROPERTY") located in the City of San Jose, County of Santa Clara, State of
California, as more particularly described on Exhibit A attached hereto,
together with all of Grantor's right, title and interest in and to all
easements, privileges and rights appurtenant to the Property and pertaining or
held and enjoyed in connection therewith. The conveyance hereunder is made
subject to matters of record or apparent from an inspection or survey as of the
date hereof.

        IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of
____________, 2001.

                                                   GRANTOR:

                                                   AGILENT TECHNOLOGIES, INC.,
                                                   a Delaware corporation


                                                   By:__________________________



                                                   By:__________________________


<PAGE>   84


                                    EXHIBIT A


        All that certain property in the City of San Jose, County of Santa
Clara, State of California, described as follows:

        All of Parcel 2 as shown on that certain Map, entitled "Parcel Map",
which Map was filed for record in the Office of the Recorder of the County of
Santa Clara, State of California, on January 30, 2001, in Book 736 of Maps, at
pages 30, 31 and 32.



                                      -2-
<PAGE>   85


STATE OF CALIFORNIA                         )
                                            )ss.
COUNTY OF                                   )
____________________________________________)


        On _____________, 2001, before me, ________________________, personally
appeared ________________________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity, and that by
his/her/their signature(s) on the instrument, the person(s) or the entity upon
behalf of which the person(s) acted, executed the instrument.

        WITNESS my hand and official seal.




        __________________________________        (Seal)



                                      -3-
<PAGE>   86


                                 EXHIBIT 10.5.1

                   TENTATIVE MAP PERMIT, FINAL MAP, PD PERMIT,
                        AND PERMIT REQUIRED IMPROVEMENTS

        1. Tentative Map Permit: As used in the Agreement and this Exhibit, the
terms "Tentative Map Permit" and "TMP" shall mean that Tentative Map Permit
bearing File No. PT00-08-106 issued and approved January 17 2001, a copy of
which is attached as Exhibit 10.5.1.1.

        2. Final Map: As used in the Agreement and this Exhibit, the term "Final
Map" shall mean that Parcel Map recorded January 30, 2001, in the Official
Records of Santa Clara County, California, in Book 736 of Maps, at pages 30, 31
and 32.

        3. PD Permit: As used in the Agreement and this Exhibit, the term "PD
Permit" shall mean that Planned Development Permit bearing File No. PD00-08-063,
approved and issued January 18, 2001 by the City of San Jose, a copy of which is
attached as Exhibit 10.5.1.2.

        4. Permit Required Improvements: As used in the Agreement and this
Exhibit, the term "Permit Required Improvements" shall mean the obligations or
actions to be performed by Seller that are described by the following Sections
4.B and 4.C made part of this Section 4 (with reference to the indicated
Conditions of either the Tentative Map Permit or the PD Permit), but subject to
the limitations contained in Section 4.A:

            A. Limitations: The scope of the Permit Required Improvements to be
constructed or implemented by Seller shall be limited by the following:

                (1) Wherever in Section 4.B or 4.C there is a reference to
"General Requirement", it is intended to mean that (i) Seller shall comply with
such "General Requirement" in connection with its construction of the physical
improvements it is required to construct as part of the Permit Required
Improvements only if and to the extent the City requires compliance as a
condition to the construction of such physical improvements that are part of the
Permit Required Improvements; and, (ii) such "General Requirement" will or may
be imposed in connection with any future land use approval or permit sought by
either the owner of the Property or the owner of the Seller's Retained Property
with respect to construction of buildings and other improvements in the future
(e.g., a PD permit or a site development permit for buildings on either
property), and that the applicant for such approval will be responsible for
complying with such "General Requirement" at its cost without reimbursement from
Seller (except to the extent Seller is the applicant for such future land use
approval for the development of improvements on property owned by it).

                (2) Wherever in Section 4.B or 4.C of this Exhibit it is stated
that "each of Seller and Buyer shall cooperate and make dedications or grant
easements required of it to implement the purpose of this Condition" (or words
of similar import), it is intended to mean that if after Closing further
dedications or easements are required by the City to be conveyed affecting
either the Property and/or the Seller's Retained Property to implement the
purpose of the Condition


<PAGE>   87

in question, then Seller and/or Buyer, as applicable, shall cause the required
dedication to be made from the property owned by it or the required easement to
be created and conveyed over the property owned by it, and neither party shall
have the obligation to reimburse the other for the cost to create such easement
or make such dedication, including the loss of use of any land resulting from
the creation of such easement, or the value of any land required to be so
dedicated (subject to the limitation contained in the last sentence of Section
10.5.2.9 of the Agreement).

                (3) Where a condition of the Tentative Map Permit or the PD
Permit is specifically made an obligation of Buyer by Section 4.B or 4.C of this
Exhibit, it shall be excluded from the Permit Required Improvements and shall be
an obligation of Buyer (or any subsequent owner of the Property).

            B. Tentative Map Permit (the following paragraph references are to
the enumerated conditions stated in the Tentative Map Permit):

                (1) Improvements: Seller shall construct the improvements
described by Condition 1 of the TMP.

                (2) Improvement Contract: Seller shall comply with Condition 2
of the TMP.

                (3) Public Use Easements: Seller shall make the dedications
required by Condition 3 of the TMP; provided, however, that if following Closing
further dedications are required affecting the Property or the Seller's Retained
Property, each of Seller and Buyer shall cooperate in making any dedication or
grant of easement required to implement the Tentative Parcel Map, the Final Map
and the PD Permit.

                (4) Conveyance of Easements: Seller shall comply with Condition
4 of the TMP by making the required conveyance of easements; provided, however,
that if after Closing further easements are required to be created and conveyed
affecting the Property and/or the Seller's Retained Property, then each of
Seller and Buyer shall cooperate to make any dedication or grant of easement
required by this Condition 4.

                (5) Sewage Treatment Demands: Condition 5 of the TMP is a
General Requirement.

                (6) Distribution Facilities: Seller shall comply with Condition
6 of the TMP to the extent the City requires that such facilities be installed
in Orchard Parkway, Component Drive, or any public utility easement that is
created in connection with the Final Map. Condition 6 of the TMP shall not be
construed to obligate Seller or Buyer to put underground the existing
above-ground electric power lines generally located along the alignment of
proposed Component Drive, or any other existing above-ground electrical
facilities.

                (7a) Storm Drainage, Sewer Fees: With respect to Condition 7a of
the TMP, Seller shall pay storm drainage area fees imposed by the City in
connection with the


                                      -2-
<PAGE>   88


implementation of the Final Map, and Seller shall receive the benefit of all
credits associated with the installation of storm drainage facilities; provided,
however, that to the extent such credits exceed all storm drainage area fees,
sanitary sewer connection fees, and sewer treatment plant fees that Seller is
obligated to pay with respect to the Permit Required Improvements, then such
excess credits shall be shared by Buyer and Seller in proportion to the FAR
built or permitted to be built on the Property and the Seller's Retained
Property if and to the extent the City will permit the reallocation of such net
credits. All sanitary sewer connection fees and sewage treatment plant fees not
required by the City to be paid as a condition to the construction of the Permit
Required Improvements, shall be paid by the applicant for any land use approval
for the development of buildings on the Property or the Seller's Retained
Property, to the extent they relate to the improvements for which the applicant
seeks such approval.

                (7b) Soils Report: Seller shall comply with Condition 7b of the
TMP to the extent it relates to the installation of Orchard Parkway, Component
Drive, or any other street improvements otherwise required of Seller as a Permit
Required Improvement.

                (7c) Grading Permit: Condition 7c is a General Requirement.

                (7d) Tentative Map: Seller shall cause the Final Map to satisfy
Condition 7d of the TMP.

                (7e) Storm: Seller shall cause the Final Map to satisfy the
requirements of Condition 7e of the TMP. In addition, Seller shall be
responsible for the construction of the 96" diameter storm drain pipe described
in Condition 7e of the TMP.

                (7f) Abandonment: Seller shall comply with Condition 7f of the
TMP.

                (7g) Street Improvements: Seller shall be responsible for
constructing all improvements described in Condition 7g of the TMP, and for
making such dedications as are required to implement this requirement; provided,
however, that if after Closing any dedication is required by this Condition 7g
and it affects either the Property or the Seller's Retained Property, then each
of Seller and Buyer shall cooperate in making such dedication or grant of
easement necessary to satisfy such Condition 7g.

                (7h) North San Jose Deficiency Plan Fee: It is anticipated that
the fee described in Condition 7h of the TMP will be payable, and shall be
payable by, the owner of the Property or the owner of the Seller's Retained
Property, as applicable, in connection with an application for a land use
approval for the development of buildings on the property affected. However, if
the City imposes such fee in connection with the implementation of the Final
Map, the TMP, or the PD permit as it relates to the Permit Required
Improvements, such fee shall be allocated between the owner of the Property and
the owner(s) of Seller's Retained Property in proportion to the FAR entitlements
for such properties.

                (7i) Stormwater Management: Condition 7i of the TMP is a General
Requirement.


                                      -3-
<PAGE>   89

                (7j) Conceptual Alignment of Street: Seller shall comply with
Condition 7j of the TMP; provided, however, that if any street that is part of
the Permit Required Improvements needs to be realigned at the requirement of the
City, and any further dedication or adjustment of boundaries is required to
implement such realignment, then each of Seller and Buyer shall cooperate to
make such dedication of land from the Property and the Seller's Retained
Property as is necessary to implement such realignment.

                (7k) Private Driveway: Seller shall comply with Condition 7k of
the TMP, to the extent a driveway is shown on the Final Map.

                (7l) Construction Agreement: Seller shall comply with Condition
7l of the TMP.

                (7m) Landscaped Median Island: Seller shall comply with
Condition 7m of the TMP.

                (8) Street Trees: Seller shall comply with Condition 8 of the
TMP to the extent it affects any frontage along, or the median strip within,
Orchard Parkway, or Atmel Way. Buyer shall be responsible for complying with
this requirement to the extent it is applicable to Component Drive (and in this
regard, Seller is responsible for irrigation systems and landscaping, but not
street trees, required along Component Drive).

                (9) Conformance With Other Permits: Condition 9 of the TMP is a
General Requirement.

                (10) Expiration of Permit: Condition 10 of the TMP is a General
Requirement.

            B. PD Permit (the following paragraph references are to the
enumerated conditions stated in the PD Permit):

                (1) Sewage Treatment Demand: Condition 1 of the PD Permit is a
General Requirement.

                (2) Permit Expiration: Condition 2 of the PD Permit is a General
Requirement.

                (3) Conformance with Plans: Condition 3 of the PD Permit is a
General Requirement.

                (4) Revocation: Condition 4 of the PD Permit is a General
Requirement.

                (5) Conformance with Municipal Code: Condition 5 of the PD
Permit is a General Requirement.

                (6) Acceptance: Seller shall comply with Condition 6 of the PD
Permit.


                                      -4-
<PAGE>   90


                (7) Planned Development District Effectuated: Condition 7 of the
PD Permit is a General Requirement.

                (8) Construction Hours: Condition 8 of the PD Permit is a
General Requirement.

                (9) Landscaping: Condition 9 of the PD Permit is a General
Requirement. However, Seller shall be responsible for the installation of
landscaping (other than street trees if required by the City) relating to the
installation of Component Drive.

                (10) Certification: Condition 10 of the PD Permit is a General
Requirement.

                (11) Discretionary Review: Condition 11 of the PD Permit is a
General Requirement.

                (12) Lighting: Condition 12 of the PD Permit is a General
Requirement.

                (13) Refuse: Condition 13 of the PD Permit is a General
Requirement.

                (14) Utilities: Condition 14 of the PD Permit is a General
Requirement; provided, however, that neither Seller nor Buyer shall be
responsible, and Condition 14 shall not be construed to mean that either Buyer
or Seller is responsible, for the undergrounding of the existing high-tension
power lines generally following the course of Component Drive existing on the
Property as of the Effective Date.

                (15) Outside Storage: Condition 15 of the PD Permit is a General
Requirement.

                (16) Sign Approval: Condition 16 of the PD Permit is a General
Requirement.

                (17) Hazardous Materials Storage: Condition 17 of the PD Permit
is a General Requirement.

                (18) Fire Flow: Condition 18 of the PD Permit is a General
Requirement.

                (19) Fire Hydrants: Condition 19 of the PD Permit is a General
Requirement; provided, however, that Seller shall use reasonable efforts to
coordinate the development of Component Drive with Buyer to permit Buyer to
efficiently comply with the requirements of Condition 19 to the extent it
applies to improvements to be constructed by Buyer on the Property.

                (20) Fire Hydrants and Driveways: Condition 20 of the PD Permit
is a General Requirement.


                                      -5-
<PAGE>   91


                (21) Fire Lanes: Condition 21 of the PD Permit is a General
Requirement.

                (22) Emergency Vehicle Accessibility: Condition 22 of the PD
Permit is a General Requirement.

                (23) Tree Removals: Condition 23 of the PD Permit is a General
Requirement.

                (24) Public Works Clearance: Condition 24 of the PD Permit
generally requiring a Development Clearance from the Public Works Department is
a General Requirement; provided, however, that the sub-conditions described in
subparagraphs 24(a) - (p) shall be addressed as specified in this Exhibit.

                    (a) Storm Drainage, Sewer Fees: Condition 24(a) of the PD
Permit shall be addressed in the same manner as Condition 7a of the TMP.

                    (b) Municipal Water Fees: With respect to Condition 24(b) of
the PD Permit, this is a General Requirement (i.e., Seller is only required to
pay those Major Water Facilities Fees that are required to be paid by the City
as a condition to the construction of the street improvements and off-site
traffic mitigation improvements that Seller is required to construct as part of
the Permit Required Improvements).

                    (c) Soils Report: Condition 24(c) of the PD Permit is a
General Requirement.

                    (d) Grading Permit: Condition 24(d) of the PD Permit is a
General Requirement.

                    (e) Reclaimed Water: Condition 24(e) of the PD Permit is a
General Requirement.

                    (f) Flood Elevation Certificate: Condition 24(f) of the PD
Permit is a General Requirement.

                    (g) Grading and Drainage Plan: Condition 24(g) of the PD
Permit is a General Requirement; provided, however, that Seller shall construct
the 96-inch diameter storm drainpipe along the project frontage on Orchard
Parkway to the satisfaction of the Director of Public Works as required by this
Condition as part of the Permit Required Improvements.

                    (h) Reclaimed Water Irrigation Systems: Condition 24(h) of
the PD Permit is a General Requirement.

                    (i) Street Improvements: Seller shall, as part of the Permit
Required Improvements, construct all improvements described by Condition 24(i)
of the PD Permit and make the dedication required by subparagraph (4) thereof;
provided, however, that each of Seller


                                      -6-
<PAGE>   92

and Buyer shall cooperate and make dedications required of it to implement the
purpose of this Condition.

                    (j) Landscaped Median Island: Seller shall construct the
improvements required by Condition 24(j) of the PD Permit.

                    (k) Street Trees: Seller shall comply with Condition 24(k)
of the PD Permit; provided, however, that Seller shall not be responsible for
the installation of street trees along the frontage of Component Drive.

                    (l) North San Jose Deficiency Plan Fee: Condition 24(l) of
the PD Permit and shall be addressed in the same manner as Condition 7h of the
TMP.

                    (m) Storm Water Management: Condition 24(m) of the PD Permit
is a General Requirement.

                    (n) Conceptual Alignment of Street: Seller shall comply with
Condition 24(n) of the PD Permit; provided, however, that each of Seller and
Buyer shall cooperate and make dedications required of it to implement the
purpose of this Condition.

                    (o) Private Driveway: Seller shall comply with Condition
24(o) of the PD Permit.

                    (p) Construction Agreement: Condition 24(p) of the PD Permit
is a General Requirement.

                (25) Building Clearance for Issuing Permits: Condition 25 of the
PD Permit is a General Requirement.

                (26) Street Cleaning and Dust Control: Condition 26 of the PD
Permit is a General Requirement.

                (27) Burrowing Owl Habitat: Condition 27 of the PD Permit is a
General Requirement; provided, however, that to the extent either the Agreement
or the CC&Rs specifically set forth rights and responsibilities of Seller and
Buyer with respect to the subject of burrowing owls and any mitigation plan
relating to burrowing owls, such agreements shall govern their respective rights
and responsibilities and not be modified by this Exhibit.

                (28) Archeology: Condition 28 of the PD Permit is a General
Requirement.

                (29) Anti-Graffiti: Condition 29 of the PD Permit is a General
Requirement.



                                      -7-
<PAGE>   93

                                  EXHIBIT 10.7

                       FORM OF SUBSTATION UTILITY EASEMENT



        Recording requested by
        and when recorded return to:

        Wilson Sonsini Goodrich & Rosati
        650 Page Mill Road
        Palo Alto, California 94304-1050
        Attn.: Real Estate Department/SPR



                               EASEMENT AGREEMENT

        THIS EASEMENT AGREEMENT (this "Agreement") is made as of ___________,
2001, by and between __________________, a _______________ ("Grantor") and
Agilent Technologies, Inc., a Delaware corporation ("Grantee").

                                R E C I T A L S:

        A. Grantor is the owner of real property located in the City of San
Jose, County of San Jose, State of California, more particularly described on
Exhibit A attached hereto and incorporated by reference herein ("Grantor's
Property").

        B. Grantee is the owner of certain real property located in the City of
San Jose, County of Santa Clara, State of California, adjacent to Grantor's
Property ("Grantee's Property"). Grantee's Property is more particularly
described on Exhibit B attached hereto and incorporated by reference herein.

        C. Grantor and Grantee desire that Grantor grant to Grantee an easement
over a portion of Grantor's Property, as described herein.

        NOW THEREFORE, in consideration of good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged by the parties hereto,
Grantor and Grantee agree as follows:

        1. Grantor Grant of Easement. Grantor hereby grants to Grantee an
easement in perpetuity over, across and through that portion of Grantor's
Property described on Exhibit C attached hereto (the "Easement Area") to
construct, install, maintain, operate, inspect, repair, replace and remove
underground telecommunications, electricity and other utilities and services,

<PAGE>   94


including, but not limited to, conduits, cables, wires and other facilities, and
such aboveground structures, equipment and improvements as may be required in
connection therewith (the "Improvements") by Grantor and its agents, employees,
representatives, contractors, tenants, licensees and invitees. Such easement
shall encumber Grantor's Property and shall benefit and be appurtenant to
Grantee's Property. Grantor's Property and Grantee's Property may be referred to
herein from time to time individually as "Property" and collectively as
"Properties." Grantor grants to Grantee the express right to trim such trees and
other foliage and to cut such roots in the Easement Area as may be necessary for
the protection of the Improvements and the use thereof. Grantee shall retain
title to the Improvements. The easement granted hereunder shall be unaffected by
any change in use, whether such change is in the nature of use or the intensity
of use, of the benefited land or any portion thereof.

        2. Maintenance. Grantee shall maintain the Improvements in a neat, safe
and secure manner. For the purpose of maintaining, and installing, repairing, or
replacing Improvements in, the Easement Area, Grantee shall have reasonable
access to portions of the Grantor's Property outside the Easement Area. Grantor
shall maintain the portion of Grantor's Property upon which the easement herein
has been granted in good condition and repair.

        3. Above-Ground Improvements. To the extent feasible, Improvements
installed in the Easement Area shall be installed underground. Any above-ground
Improvements shall be limited to those that cannot be feasibly located
underground at commercially reasonable cost (e.g., vents, accessways, meters),
including without limitation facilities that are required to be located
above-ground by any governmental entity or utility service provider. Such
above-ground Improvements installed by Grantee shall not materially interfere
with Grantor's use of the Easement Area for parking areas and roadways, or
materially impair Grantor's ability to maintain landscaping thereon.

        4. Other Uses of Easement Area. Grantor may make uses of the Easement
Area which do not materially interfere with or materially increase the cost of
utilization of the Easement Area by Grantee for the uses permitted by this
Easement Agreement. Such permitted uses include the installation of landscaping,
driveways, and parking areas in the Easement Area, and the installation of
below-ground utility conduits, cables, wires, pipes, lines and other facilities
to the extent such below ground facilities are consistent with the preceding
sentence. No buildings, storage facilities, loading docks, waste disposal
facilities (except for sewer and storm drain facilities) or other structures may
be located or constructed within the Easement Area. Grantee and Grantor shall
use reasonable efforts to coordinate the design and installation of facilities
that each is entitled to install within the Easement Area so that such usage can
be done in a manner that is compatible and consistent with the limitations
contained in this Easement Agreement.

        5. Term. The covenants and obligations set forth in this Agreement shall
be perpetual and shall continue in full force and effect from the date of
recordation hereof. Non-use or limited use of the easement shall not prevent
Grantee from later making full use of the easement or constitute an abandonment
or operate to terminate this Agreement. If all or any


                                      -2-
<PAGE>   95

portion of the Easement Area or Improvements thereon is taken by condemnation or
eminent domain or transfer in lieu thereof, then, as of the date of the taking,
with regard to the portion of the Easement Area so taken, this Agreement shall
cease, the provisions of this Agreement with respect thereto shall be null and
void and of no further force or effect and Grantee shall be entitled to a share
of any proceeds thereof allocable to Grantee's interest hereunder, including
lost good will, relocation costs and the unamortized value of the Improvements.

        6. Covenants Run with Land. All of the provisions, agreements, rights,
powers, covenants, conditions and obligations contained in this Agreement shall
be binding upon and shall inure to the benefit of each of the parties and their
respective heirs, successors, assigns, devisees, administrators and
representatives, and all other persons acquiring all or any portion of one or
more of the Properties. All of the provisions of this Agreement shall be
covenants running with the land pursuant to any and all applicable laws. Each
covenant with respect to the Easement Area runs with both Properties and shall
benefit or be binding upon each successive owner of the Properties,
respectively, during the period of ownership of all or any portion of one or
more of the Properties.

        7. Negation of Partnership. None of the terms or provisions of this
Agreement shall be deemed to create a partnership between the parties, nor shall
this Agreement cause the parties to be considered or deemed to be joint
venturers or members of any joint enterprise. This Agreement is not intended,
nor shall it be construed, to create any third party beneficiary rights in or
for the benefit of any person who is not a party hereto, except as otherwise
expressly provided to the contrary in this Agreement.

        8. Miscellaneous. All exhibits attached hereto are incorporated by this
reference as if fully set forth herein. This Agreement, including the exhibits
and attachments hereto, constitute the entire agreement between the parties
hereto relative to the subject matter hereof. Any and all prior discussions,
negotiations, and understandings relating thereto are hereby merged herein. This
Agreement cannot be amended, modified, revised or terminated orally, but only by
a writing signed by the then-owners of record of the Properties; provided,
however, that the then-owner of record of any of the Grantee's Property may,
without the written agreement of the then-owner of record of the Grantor's
Property, quitclaim its interest in this Agreement as to any portion of the
Grantee's Property owned at such time by such owner. Headings set forth in this
Agreement are intended for the ease of reference only. The invalidation of any
of the provisions contained in this Agreement, or of the application thereof to
any person by judgment or court order, shall in no way affect any of the other
provisions hereof, or the application thereof to any other person, and the same
shall remain in full force and effect to the maximum extent possible. In the
event of any controversy, claim or dispute concerning the interpretation or
enforcement of any of the provisions of this Agreement or the breach of any
provision of this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees, expenses and costs. This Agreement shall be governed
by and interpreted in accordance with the laws of the State of California.
Grantee shall have the right to record this Agreement in the land records of the
County in which Grantor's Property is located.


                                      -3-
<PAGE>   96


        IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
as of the date and year first above written.

                                    GRANTEE:

                                            AGILENT TECHNOLOGIES, INC.,
                                            a Delaware corporation

                                            By _________________________________

                                            Name _______________________________

                                            Its ________________________________

                                    [SIGNATURE MUST BE ACKNOWLEDGED]



                                      -4-
<PAGE>   97


                                            GRANTOR:

                                            ___________________________,
                                            a _________________________

                                            By _________________________________

                                            Name _______________________________

                                            Its ________________________________

                                    [SIGNATURE MUST BE ACKNOWLEDGED]



                                      -5-
<PAGE>   98

                                    Exhibit A

                               GRANTOR'S PROPERTY



        All that certain property in the City of San Jose, County of Santa
Clara, State of California, described as follows:

        All of Parcel 2 as shown on that certain Map, entitled "Parcel Map",
which Map was filed for record in the Office of the Recorder of the County of
Santa Clara, State of California, on January 30, 2001, in Book 736 of Maps, at
pages 30, 31 and 32.


                                      -6-
<PAGE>   99



                                    Exhibit B

                               GRANTEE'S PROPERTY

        All that certain property in the City of San Jose, County of Santa
Clara, State of California, described as follows:

        All of Parcel 1 as shown on that certain Map, entitled "Parcel Map",
which Map was filed for record in the Office of the Recorder of the County of
Santa Clara, State of California, on January 30, 2001, in Book 736 of Maps, at
pages 30, 31 and 32.



                                      -7-
<PAGE>   100



                                    Exhibit C

                                  EASEMENT AREA



                                      -8-
<PAGE>   101



                                  EXHIBIT 10.9

                              MITIGATION AGREEMENT



                                      -9-