California-Sunnyvale-1260 Crossman Avenue Agreement of Assignment of Lease - Network Appliance Inc. and Lockheed Martin Corp.
AGREEMENT OF ASSIGNMENT OF LEASE
DEFINED TERMS
EFFECTIVE DATE: September 3, 1999
ASSIGNEE: NETWORK APPLIANCE, INC.,
a California corporation
ASSIGNEE'S ADDRESS: 495 Java Drive
Sunnyvale, California 94089
Attention: Mr. Thom Bryant
Telephone: (408) 822-6175
Facsimile: (408) 822-4411
ASSIGNOR: LOCKHEED MARTIN CORPORATION,
a Maryland corporation
ASSIGNOR'S ADDRESS: c/o LMC Properties, Inc.
100 S. Charles Street, Suite 1400
Baltimore, Maryland 21201
Attn: Ms. Terri E. Beattie
Telephone: (410) 468-1009
Facsimile: (410) 468-1078
LEASEHOLD INTEREST AND OTHER
PROPERTY: See Section 1.1.
ASSIGNMENT FEE: Ten Million Dollars ($10,000,000)
DEPOSIT: Two Million Dollars ($2,000,000)
DUE DILIGENCE PERIOD: See Section 4.1.1.
TITLE COMPANY and ESCROW First American Title Guaranty Company
HOLDER: 1737 North First Street
San Jose, California 95112
CLOSING DATE: See Section 5.
CLOSING COST ALLOCATIONS:
- ASSIGNEE: ESCROW FEES 50%
RECORDING FEES 100%
i.
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- ASSIGNOR: ESCROW FEES 50%
RECORDING FEES 0%
BROKER: None
ii.
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TABLE OF CONTENTS
1. Assignment of Leasehold Interest and Other Property..................................1
1.1 Lease.........................................................................1
1.2 Intangible Property...........................................................1
2. Assignment Fee.......................................................................1
2.1 Assignment Fee Deposit........................................................1
2.2 Cash at Closing...............................................................2
3. Assignor's Due Diligence Deliveries..................................................2
4. Conditions Precedent.................................................................2
4.1 Assignee's Conditions.........................................................2
4.2 Assignor's Conditions.........................................................3
4.3 Failure or Waiver of Conditions Precedent.....................................4
5. Close of Escrow......................................................................4
5.1 Assignor's Deliveries into Escrow.............................................4
5.2 Assignee's Deliveries into Escrow.............................................5
5.3 Assignor's Deliveries Outside of Escrow.......................................5
5.4 Escrow Holder's Duties........................................................6
5.5 Holdover......................................................................6
6. Covenants, Representations and Warranties............................................6
6.1 Assignor's Covenants..........................................................6
6.2 Assignor's Representations and Warranties.....................................7
7. Closing Adjustments and Prorations...................................................8
7.1 Closing Costs.................................................................8
7.2 Utilities.....................................................................9
7.3 Calculations for Closing......................................................9
8. LIQUIDATED DAMAGES...................................................................9
9. Default by Assignor.................................................................10
10. Miscellaneous.......................................................................10
10.1 Brokerage Commissions........................................................10
10.2 No Liability.................................................................10
10.3 Time of the Essence..........................................................10
10.4 Notices......................................................................10
10.5 Marketing....................................................................11
10.6 Attorneys' Fees..............................................................11
iii.
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10.7 Successors and Assigns.......................................................11
10.8 Confidentiality..............................................................11
10.9 Captions.....................................................................11
10.10 Exhibits.....................................................................11
10.11 Binding Effect...............................................................11
10.12 Construction.................................................................12
10.13 Counterparts.................................................................12
10.14 Further Assurances...........................................................12
10.15 Governing Law................................................................12
10.16 Entire Agreement.............................................................12
10.17 Waiver of Jury Trial.........................................................12
Exhibits: A - Consent and Estoppel Certificate
B - Assignment of Lease
C - Bill of Sale
D - Assignment of Intangible Property
E - Closing Certificate
F - Access Agreement
iv.
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AGREEMENT OF ASSIGNMENT OF LEASE
THIS AGREEMENT OF ASSIGNMENT OF LEASE, dated as of September 3,
1999 (the "Effective Date"), is entered between Lockheed Martin Corporation, a
Maryland corporation, successor-in-interest to Ford Aerospace & Communications
Corporation ("Assignor") and Network Appliance, Inc., a California corporation
("Assignee"), who, for valuable consideration received, agree as follows:
1. ASSIGNMENT OF LEASEHOLD INTEREST AND OTHER PROPERTY. Assignor
agrees to sell to Assignee, and Assignee agrees to purchase from Assignor, on
the terms hereafter stated all of Assignor's right, title and interest in the
following described property (collectively, the "Property"):
1.1 Lease. All of Assignor's right, title and interest, as
tenant (the "Leasehold Interest"), in that certain Lease (the "Lease") dated May
5, 1978, as amended by Lease Amendment One dated May 5, 1978, Lease Amendment
Two dated June 6, 1988, Lease Amendment Three dated September 24, 1993 and all
other amendments thereto, and entered into between TriNet Essential Facilities
XII, Inc., a Maryland corporation ("Landlord"), as successor-in-interest to The
Prudential Insurance Company of America, and Assignor, as successor-in-interest
to Ford Aerospace & Communications Corporation, pursuant to which Landlord
leases to Assignor all of that certain real property (the "Real Property")
located at 1260 Crossman Avenue in Sunnyvale, California and more particularly
described in the Lease; and
1.2 Intangible Property. Any and all intangible personal
property owned by Assignor and arising out of or in connection with the
ownership of the Leasehold Interest or operation of the Property, including the
right to use the permits and certificates of occupancy issued by Federal, state
or local municipal authorities relating to the use, maintenance, occupancy or
operation of the Property, all plans, specifications and drawings relating to
the construction of the improvements, all warranties, guaranties or sureties
with respect thereto, any unpaid award for damage to the Property and any
proceeds of insurance or claim or cause of action for damage, loss or injury of
or to the Property and all service, equipment, maintenance, construction and
employment agreements (collectively the "Service Contracts") with respect to the
Real Property and entered into by Assignor (collectively, the "Intangible
Property").
2. ASSIGNMENT FEE. Subject to the closing adjustments and
prorations hereafter described, Assignee shall pay to Assignor the amount of Ten
Million Dollars ($10,000,000) (the "Assignment Fee") for the Property, in the
following manner:
2.1 Assignment Fee Deposit. Within two (2) business days
after Assignee's and Assignor's execution of this Agreement, Assignee shall
deposit with First American Title Guaranty Company ("Escrow Holder") cash in an
amount equal to Two Million Dollars ($2,000,000) (the "Deposit"). Escrow Holder
shall place such funds in an interest-bearing account. (The Deposit and all
interest earned thereon shall hereinafter collectively be referred to as the
"Assignment Fee Deposit.") Upon expiration of the Due Diligence Period (defined
below), the Assignment Fee Deposit shall become nonrefundable but
1.
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shall remain with Escrow Holder until the earlier of: (i) Close of Escrow; (ii)
the release to Assignor of such Assignment Fee Deposit in accordance with the
terms hereof because of a Assignee default; or (iii) immediately upon Assignee's
delivery of notice to Assignor that Assignee will not consummate the transaction
contemplated hereunder. Following expiration of the Due Diligence Period, the
Assignment Fee Deposit shall be returned to Assignee if and only if the
transaction contemplated hereunder fails to close because of a default by
Assignor or a default by Landlord under the Real Property Purchase Agreement.
Upon the Close of Escrow (as hereinafter defined), the Assignment Fee Deposit
shall be applied against the Assignment Fee.
2.2 Cash at Closing. On or before the Close of Escrow,
Assignee shall deposit with Escrow Holder by federal wire transfer or cashier's
check cash in an amount equal to the Assignment Fee, minus the Assignment Fee
Deposit (the "Cash Payment"), plus or minus the closing adjustments and
prorations.
3. ASSIGNOR'S DUE DILIGENCE DELIVERIES. Assignor shall deliver to
Assignee no later than five (5) days after the Effective Date the following
documents (the "Due Diligence Materials"), ownership of which shall be deemed
transferred from Assignor to Assignee upon the Close of Escrow: (i) all leases,
subleases, service agreements, maintenance agreements and other contracts
relating to the ownership, operation, use and maintenance of the Property,
including the Lease, (ii) any and all environmental reports or studies with
respect to the Improvements or the Real Property and any and all reports or
studies regarding the physical condition of the Improvements in the possession
of Assignor, and (iii) any and all surveys of the Real Property which were
prepared by or are in the possession or control of Assignor.
4. CONDITIONS PRECEDENT.
4.1 Assignee's Conditions. Assignee's obligation to accept
an assignment of the Leasehold Interest in the Property shall be subject to and
contingent upon the satisfaction or written waiver of the following conditions
precedent:
4.1.1 Due Diligence Period. Assignee's inspection and
approval during the Due Diligence Period of all Due Diligence Materials, all
records and files of Assignor relating to the Property, and all physical,
environmental, legal and any other matters relating to the Property (including
zoning, land use and similar public agency or governmental conditions or
approvals with respect to the ownership, operation and use of the Property) as
Assignee may, in Assignee's sole discretion, elect to investigate. As used in
this Agreement, the term "Due Diligence Period" shall mean the period commencing
on the Effective Date and ending at 5:00 P.M. Pacific Standard Time on the
thirtieth (30th) day after the Effective Date of this Agreement.
2.
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4.1.1.1 Physical Inspection. During the Due
Diligence Period, Assignee shall be permitted to make complete physical,
environmental, legal and other inspections of the Property and to make and
remove copies of any and all records and files regarding the Property; provided,
however, that in no event shall Assignor be required to provide Assignee with
access to or copies of proprietary or government-classified documents. Assignor
shall allow Assignee access to the Property in accordance with the terms and
provisions of the Access Agreement attached hereto as Exhibit F.
4.1.2 Consent; Estoppel. Assignee's receipt and
approval, on or before the Close of Escrow, of a Consent and Estoppel
Certificate executed by Landlord in the form attached hereto as Exhibit A (the
"Consent and Estoppel Certificate");
4.1.3 Covenants; Representations. Assignor's
performance of each and every covenant required to be performed by Assignor
hereunder, and the truth and correctness of each of Assignor's representations
and warranties as set forth in Section 6.2.
4.1.4 Change in Representations or Warranties. Assignee
shall have approved any material (in Assignee's judgment) change to Assignor's
representations and warranties reflected in the Closing Certificate (as defined
in Section 5.1.7). Assignee shall have two (2) business days following receipt
of said certificate to approve or disapprove any such changes (and if necessary,
the Close of Escrow shall be extended by the number of days necessary to give
Assignee this full two (2) business day period).
4.1.5 Change in Condition. There shall have been no
material adverse changes in the physical condition of the Property.
4.1.6 Real Property Purchase Agreement. Assignee and
Landlord have negotiated and executed a purchase and sale agreement (the "Real
Property Purchase Agreement") pursuant to which Landlord has agreed to sell
Landlord's fee interest in the Real Property to Assignee. All conditions and
contingencies under the Real Property Purchase Agreement between Landlord and
Assignee shall have been satisfied in accordance with the terms thereof. At the
Close of Escrow, Landlord shall simultaneously transfer title to the Real
Property to Assignee pursuant to the terms of the Real Property Purchase
Agreement.
4.2 Assignor's Conditions. Assignor's obligation to assign
the Leasehold Interest in the Property shall be subject to and contingent upon
satisfaction or written waiver of the following conditions precedent:
4.2.1 Other Property. Upon mutual execution of this
Agreement and of the Real Property Purchase Agreement, Assignee shall terminate
any and all other negotiations and contracts for the purchase of real property
being considered by Assignee as an alternative to the Real Property. During the
Due Diligence Period, Assignee shall not enter into any new contract for the
purchase of real property as an alternative to the Real Property.
4.2.2 Real Property Purchase. Assignee shall have
obtained the fee interest to the Real Property; provided, however, that
Assignee's failure to consummate the
3.
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transaction pursuant to which Assignee acquires title to the Real Property shall
not result in the return of the Assignment Fee Deposit to Assignee.
4.2.3 Assignee's Fulfillment of Conditions. Assignor's
obligation to sell the Property shall be subject to and contingent upon
Assignee's performance of each and every covenant required to be performed by
Assignee hereunder and the truth and correctness of each of Assignee's
representations and warranties, as set forth in Section 6.3.
4.3 Failure or Waiver of Conditions Precedent. In the event
any of the conditions set forth above in Sections 4.1 and 4.2 are not fulfilled,
waived or deemed waived (for any reason other than a default by either Assignee
or Assignor hereunder), this Agreement shall terminate and all rights and
obligations hereunder of each party shall be at an end. Assignee or Assignor may
elect, at any time or times on or before the date specified for the satisfaction
of the condition, to waive in writing the benefit of any of their respective
conditions set forth in Section 4.1 or Section 4.2 above, as applicable.
Assignee's failure to notify Assignor in writing of the satisfaction of the
condition set forth in Section 4.1.1 on or before the date specified for
satisfaction shall be deemed to constitute a failure of such condition. In any
event, Assignee's and Assignor's consent to the Close of Escrow shall waive any
remaining unfulfilled conditions (but such waiver shall not be deemed to waive
any subsequently discovered breach of any representation, warranty or covenant
made by either party to this Agreement.)
5. CLOSE OF ESCROW. Concurrently herewith, Assignor and Assignee
shall open an escrow (the "Escrow") with Escrow Holder for the assignment
contemplated by this Agreement. Assignee and Assignor agree that such Escrow
shall be closed and the assignment shall be consummated (the "Close of Escrow")
on March 1, 2000 (the "Closing Date"), in the following manner:
5.1 Assignor's Deliveries into Escrow. Prior to the Close of
Escrow, Assignor shall deliver into Escrow the following (all documents shall be
duly executed by Assignor and shall be acknowledged where required):
5.1.1 Assignment of Lease. An Assignment and Assumption
of Lease ("Assignment of Lease") in the form of Exhibit B attached hereto;
5.1.2 Bill of Sale. A bill of sale (the "Bill of Sale")
with respect to the Personal Property in the form of Exhibit C, attached hereto;
5.1.3 Assignment of Intangible Property. A duplicate
original of an assignment of Assignor's interest in the Intangible Property (the
"Assignment of Intangible Property") in the form of Exhibit D, attached hereto;
5.1.4 Lease. Assignor shall use commercially reasonable
efforts to locate and to provide to Assignee a true, correct and complete
original copy of the Lease; provided, however, that if no such original can be
located, Assignor shall provide a fully-executed, correct and complete copy of
the Lease to Assignee;
4.
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5.1.5 Consent and Estoppel. A fully-executed Consent
and Estoppel Certificate;
5.1.6 Closing Certificate. A certificate (the "Closing
Certificate") in the form attached hereto as Exhibit E, which certificate shall
incorporate each representation and warranty of Assignor set forth in Section
6.2, and which certifies that each such representation and warranty is true as
of the Close of Escrow, or sets forth the reason that any such representation or
warranty is not true;
5.1.7 Escrow Instructions. Assignor's written escrow
instructions to close Escrow in accordance with the terms of this Agreement; and
5.1.8 Formation Documents. Resolutions, authorizations,
bylaws or other corporate and/or partnership documents or agreements relating to
Assignor and its shareholders as shall be required by Escrow Holder to close the
transaction contemplated hereunder.
5.2 Assignee's Deliveries into Escrow. Prior to the Close of
Escrow, Assignee shall deliver into Escrow the following:
5.2.1 Cash Payment. The Cash Payment plus or minus
closing adjustments and prorations;
5.2.2 Documents. Duplicate originals, duly executed by
Assignee, of the Assignment of Lease and Assignment of Intangible Property; and
5.2.3 Escrow Instructions. Assignee's written
instructions to close Escrow in accordance with the terms of this Agreement.
5.3 Assignor's Deliveries Outside of Escrow. Upon or before
the Close of Escrow, Assignor shall deliver or shall have previously delivered
to Assignee the following items:
5.3.1 Service Contracts. Ink-signed originals of those
Service Contracts that have not been terminated by Assignee on or before the
Close of Escrow, or, if Assignor does not possess the same, then the best copies
of such contracts available to Assignor, together with an affidavit of Assignor
that such copies constitute true, correct and complete copies of such contracts;
5.3.2 Licenses, Permits and Approvals. Originals of all
governmental licenses, permits and approvals relating to the occupancy or use of
the Real Property in Assignor's possession; and
5.3.3 Due Diligence Materials. The originals of all
other Due Diligence Materials.
5.
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5.4 Escrow Holder's Duties. On the Close of Escrow, Escrow
Holder shall:
5.4.1 Clear Title. Record all documents as may be
necessary to clear title in accordance with the requirements of this Agreement;
5.4.2 Closing Costs; Prorations. Pay all closing costs
and making all prorations in accordance with the terms of this Agreement and a
statement of adjustments and prorations prepared by Assignee and Assignor and
delivered to Escrow Holder prior to the Close of Escrow;
5.4.3 Deliveries to Assignee. Deliver to Assignee the
Escrow Holder's certified closing statement and an original of each of the
Lease, Bill of Sale, Assignment of Intangible Property, Assignment of Lease,
Non-Foreign Certificate and Closing Certificate; and
5.4.4 Deliveries to Assignor. Deliver to Assignor the
Assignment Fee and Cash Payment, plus or minus closing adjustments and
prorations, Escrow Holder's certified closing statement and an original of each
of the Assignment of Intangible Property and Assignment of Lease.
5.5 Holdover. Pursuant to the terms and conditions of a
separate agreement entered into by Assignor and Assignee, which shall be
negotiated and executed during the Due Diligence Period, Assignee shall allow
Assignor to continue to occupy approximately 45,000 square feet of the building
located on the Real Property for a period not to exceed ninety (90) days after
the Close of Escrow. In the event of such holdover by Assignor, Assignor shall
pay to Assignee rent in an amount equal to Assignor's then existing rental rate
and any additional rent owing under the Lease.
6. COVENANTS, REPRESENTATIONS AND WARRANTIES.
6.1 Assignor's Covenants. Assignor hereby covenants and
agrees that during the period from the date of this Agreement through the Close
of Escrow (the "Contract Period"):
6.1.1 Alterations; Damage. Assignor shall not make any
alterations to the Property (except as required by law or governmental order, or
in the event of an emergency); and Assignor shall notify Assignee promptly upon
becoming aware of any damage, destruction, repair or replacement of any part of
the Property.
6.1.2 Liens; Encumbrances. Assignor shall not cause or
allow to be recorded any encumbrance, lien, deed of trust, easement or similar
agreement against the Leasehold Interest without the express prior written
consent of Assignee, nor shall Assignor cause to be recorded any encumbrance,
lien, deed of trust, easement or similar agreement against title to the Property
without the express prior written consent of Assignee.
6.
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6.1.3 Insurance. Assignor shall maintain Assignor's
insurance and operate and maintain the Property in a manner consistent with
Assignor's past practice.
6.1.4 Permits, Etc. Assignor shall not modify or
terminate any of the permits or other governmental approvals or any warranties
pertaining to the Property.
6.1.5 Subleases. Assignor shall not, without notice and
Assignee's written consent, which consent shall not be unreasonably withheld,
enter into any new sublease or agreement pertaining to the Property.
6.1.6 Notice to Assignee. Assignor shall promptly
notify Assignee in writing of any event or circumstance of which Assignor
becomes aware that materially and adversely affects Assignor's ability to timely
perform its obligations under this Agreement.
6.2 Assignor's Representations and Warranties. Assignor
hereby represents and warrants to Assignee as follows:
6.2.1 Authority. Assignor has full power and authority
to enter into this Agreement and any other documents contemplated by this
Agreement and to assume and perform all of Assignor's obligations hereunder; the
persons executing this Agreement and any other documents contemplated by this
Agreement on behalf of Assignor have been authorized and empowered to bind
Assignor thereto; and this Agreement is, and each instrument and document to be
executed by Assignor hereunder shall be, a valid, legally binding obligation of
Assignor enforceable against Assignor in accordance with its terms.
6.2.2 No Conflict. Neither the execution and delivery
of this Agreement and the instruments and documents referenced herein nor the
consummation of the transaction contemplated herein conflict with or result in
the breach of any terms, conditions or provisions of any contract or other
agreement or instrument to which Assignor is a party; and except as required by
the Lease, no consent of any lender, partner, shareholder, beneficiary, creditor
or investor of Assignor is required which has not already been obtained in order
to enter into this Agreement and consummate the transaction contemplated herein;
and all loans, extensions of credit or other accommodations secured by the
Leasehold Interest shall be paid upon the Close of Escrow from Assignor's
proceeds and the Property shall be released from any liens securing the same.
6.2.3 Leases. Assignor has not entered into, and there
does not exist, any lease, sublease or other occupancy agreement relating to the
Property other than the Lease.
6.2.4 Marketable Title. Assignor holds a valid
leasehold interest in the Property, which leasehold interest is insurable and
free and clear of all liens and encumbrances.
6.2.5 Lease. The copy of the Lease attached hereto as
Schedule 1 is a complete, true and correct copy of the Lease and, except as
identified to Assignee
7.
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in writing and attached hereto together with the Lease, there are no
modifications, amendments, supplements or understandings, oral or written,
amending, supplementing or changing the terms of the Lease. The Lease is in full
force and effect, having been duly executed and delivered by Tenant, and is a
valid and binding obligation of Landlord and Assignor. Current base monthly rent
under the Lease is $94,654.05, which Assignor will continue to timely pay
through and including the Close of Escrow. Tenant has not paid rent for more
than one (1) month after the month during which this Agreement is executed.
Landlord has no claims or causes of action against Assignor. There is no default
under the Lease on the part of Assignor or Landlord. Assignor and Landlord have
each performed the obligations required to be performed by them under the Lease
through the date hereof. There are no existing conditions which upon giving
notice or lapse of time or both would constitute a default under the Lease.
6.2.6 Assignor's Knowledge. To the best of Assignor's
knowledge, after due inquiry and investigation:
6.2.6.1 Eminent Domain. There are no eminent
domain proceedings for the condemnation of the Real Property pending or
contemplated.
6.2.6.2 Litigation. There is no pending or
threatened litigation, proceedings or governmental action which would adversely
affect the Real Property.
6.2.6.3 Defaults. There are no defaults or
breaches under the terms and provisions of the Service Contracts.
6.2.6.4 Bankruptcy. Assignor has not (i) made a
general assignment for the benefit of creditors, (ii) filed any voluntary
petition in bankruptcy or suffered the filing of involuntary petition by
Assignor's creditors, (iii) suffered the appointment of a receiver to take place
of all, or substantially all, of Assignor's assets, (iv) suffered the attachment
or other judicial seizure of all or substantially all of Assignor's assets, (v)
admitted in writing its inability to pay its debts as they become due or (vi)
made an offer of settlement, extension or composition to its creditors in
general.
6.2.6.5 Taxes; Assessments. Assignor has received
no written notice that the Property is subject to any special taxes,
assessments, benefit charges, nor has Assignor received written notice of the
intention of any governmental authority to impose any such special tax,
assessments or benefit charges.
7. CLOSING ADJUSTMENTS AND PRORATIONS. The adjustments and
prorations set forth below shall be made at the Close of Escrow. For the
purposes of this Section 7, the term "Proration Date" shall be defined as 11:59
P.M. on the day preceding the Close of Escrow.
7.1 Closing Costs. Assignor and Assignee shall pay the
following closing costs incurred in connection with the transaction contemplated
by this Agreement:
7.1.1 Assignor's Closing Costs. Assignor shall pay all
sales taxes and city and county documentary and other transfer taxes with
respect to the conveyance of the Leasehold Interest by Assignor to Assignee. In
addition, Assignor shall pay fifty percent
8.
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(50%) of all escrow fees incurred in connection with the conveyance of the
Property by Assignor to Assignee.
7.1.2 Assignee's Closing Costs. Assignee shall pay
fifty percent (50%) of all escrow fees and one hundred percent (100%) of all
recording fees incurred in connection with the assignment of the Property by
Assignor to Assignee.
7.2 Utilities. Assignee shall arrange with all utility
services and companies serving the Property to have accounts started in the name
of Assignee or its property manager beginning as of the Proration Date. Assignee
and Assignor shall cooperate to have the utility services and companies make
utility readings as of the Proration Date. If readings cannot be made, utility
charges shall be prorated as of the Proration Date based on estimates from the
latest bills available; provided, in any event, Assignor shall pay, through and
including the Proration Date, all utility charges attributable to the Property
which are not payable directly by tenants or other occupants of the Property.
7.3 Calculations for Closing. Assignor and Assignee shall
provide Escrow Holder with a preliminary calculation of prorations no later than
three (3) days prior to the Proration Date and a final calculation no later than
one (1) day prior to the Proration Date. The final calculation shall be executed
by each party and may be relied upon by Escrow Holder in completing the closing
adjustments and prorations. In the event incomplete information is available, or
estimates have been utilized to calculate prorations as of the Proration Date,
any prorations relating thereto shall be further adjusted and completed outside
of Escrow within sixty (60) days after the Proration Date or as and when
complete information becomes available to Assignee and Assignor. Any adjustments
to initial estimated prorations which are required upon review of such complete
information shall be made by Assignee and Assignor, with due diligence and
cooperation, by prompt cash payment to the party entitled to a credit as a
result of such adjustments. Any errors or adjustments in calculations of the
foregoing adjustments shall be corrected or adjusted as soon as practicable
after the Close of Escrow; provided, however, the provisions hereof shall
survive the Close of Escrow for not more than eighteen (18) months after the
Close of Escrow.
8. LIQUIDATED DAMAGES. IN THE EVENT OF THE FAILURE TO CLOSE
ESCROW DUE TO DEFAULT BY ASSIGNEE IN THE PERFORMANCE OF ITS OBLIGATIONS
HEREUNDER, ASSIGNOR SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT FORTHWITH
AND NEITHER PARTY SHALL HAVE FURTHER OBLIGATIONS TO THE OTHER HEREUNDER EXCEPT
ASSIGNOR'S RIGHT TO OBTAIN IMMEDIATE DISBURSEMENT OF AND TO RETAIN THE EARNEST
MONEY DEPOSIT. SUCH RETENTION OF THE EARNEST MONEY DEPOSIT IS INTENDED TO
CONSTITUTE LIQUIDATED DAMAGES TO ASSIGNOR. SAID AMOUNT SHALL BE THE FULL, AGREED
AND LIQUIDATED DAMAGES FOR THE BREACH OF THIS AGREEMENT BY ASSIGNEE, ALL OTHER
CLAIMS TO DAMAGES OR OTHER REMEDIES AT LAW OR EQUITY, INCLUDING ANY RIGHT TO
BRING AN ACTION FOR SPECIFIC PERFORMANCE, BEING HEREIN EXPRESSLY WAIVED BY
ASSIGNOR. THE PARTIES ACKNOWLEDGE THAT THE ACTUAL DAMAGES WHICH WOULD RESULT TO
ASSIGNOR AS A
9.
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RESULT OF SUCH FAILURE WOULD BE EXTREMELY DIFFICULT TO ESTABLISH. IN ADDITION,
ASSIGNEE DESIRES TO HAVE A LIMITATION PUT UPON ITS POTENTIAL LIABILITY TO
ASSIGNOR IN THE EVENT THAT THIS TRANSACTION SHALL FAIL TO CLOSE. BY PLACING
THEIR RESPECTIVE INITIALS IN THE SPACES HEREINAFTER PROVIDED, THE PARTIES
ACKNOWLEDGE THAT (i) ASSIGNOR SHALL ONLY BE ENTITLED TO LIQUIDATED DAMAGES IN
THE AMOUNT OF THE EARNEST MONEY DEPOSIT UPON A DEFAULT BY ASSIGNEE UNDER THE
TERMS OF THIS AGREEMENT AND (ii) ASSIGNOR HAS WAIVED ANY RIGHT TO BRING AN
ACTION FOR SPECIFIC PERFORMANCE.
ASSIGNEE ( ) AND ASSIGNOR ( ) AGREE.
9. DEFAULT BY ASSIGNOR. In the event of a default by Assignor
under this Agreement, Assignee shall have the right to pursue any remedy
available to Assignee at law or equity, including, without limitation, specific
performance of this Agreement.
10. MISCELLANEOUS.
10.1 Brokerage Commissions. Each party to this Agreement
warrants to the other that no person or entity can properly claim a right to a
real estate commission, finder's fee or other real estate brokerage-type
compensation (collectively, "Real Estate Compensation") based upon the acts of
that party with respect to the transaction contemplated by this Agreement other
than Cornish & Carey Commercial. Each party hereby agrees to indemnify and
defend the other (by counsel acceptable to the party seeking indemnification)
against and hold the other harmless from and against any and all loss, damage,
liability or expense, including costs and reasonable attorneys' fees, resulting
from any claims for Real Estate Compensation by any person or entity based upon
such acts. Assignee shall pay all commissions and fees payable to Cornish &
Carey Commercial.
10.2 No Liability. Assignor agrees that, except for any
Leases approved by Assignee and Service Contracts assigned to and accepted by
Assignee upon the Close of Escrow, Assignee shall have no liability as a
successor in interest for any contracts or agreements entered into by Assignor
in connection with its interest in or operation of the Property or the use,
occupancy or construction of the improvements located thereon; and Assignor
shall fully perform all of its commitments and obligations under any such
contracts and agreements and shall indemnify and defend Assignee against (by
counsel acceptable to Assignee) and hold Assignee harmless from any and all
losses, costs, damages, liabilities and expenses, including, without limitation,
reasonable counsel fees, brokerage commissions and lease assumptions under any
Leases.
10.3 Time of the Essence. Time is of the essence of every
provision of this Agreement.
10.4 Notices. Whenever Escrow Holder or any party hereto
shall desire to give or serve upon the other any notice, demand, request or
other communication, each such notice, demand, request or other communication
shall be in writing and shall be given or served
10.
<PAGE> 15
upon the other party by facsimile (with copy to be sent by United States Mail or
any method of delivery provided in this Section 10.4), by personal service or by
certified, registered or Express United States Mail, Federal Express or other
nationally recognized commercial courier, postage prepaid, addressed as set
forth above.
10.5 Marketing. Assignor shall not market or show the
Property to any other prospective assignees after the date of this Agreement and
until after this Agreement terminates.
10.6 Attorneys' Fees. If Assignee or Assignor is required to
employ counsel to enforce any of the terms of this Agreement or for damages by
reason of any alleged breach of this Agreement or for a declaration of rights
hereunder or to enforce the judgment of any judicial or quasi-judicial body with
respect to the terms of this Agreement, the prevailing party shall be entitled
to recover its reasonable attorneys' fees and court costs incurred, including
but not limited to attorneys' fees after the award, and prior to the payment, of
any judgment or other settlement.
10.7 Successors and Assigns. This Agreement shall be binding
upon the heirs, executors, administrators, successors and assigns of Assignor
and Assignee; and Assignee shall have the right to assign its rights hereunder
to any party and such assignment shall be effective as a release of Assignee
from the obligations hereunder, provided that the assignee of Assignee accepts
such assignment. Assignor shall not assign or transfer all or any portion of its
rights or obligations under this Agreement to any other individual, entity or
other person without the consent of Assignee.
10.8 Confidentiality. Except for such disclosure as may be
required by law or agreed to by the parties hereto in writing, Assignor and
Assignee agree to keep in confidence this Agreement and each and every term and
provision hereof, including, without limitation, the Assignment Fee; provided,
however, that Assignor and Assignee may disclose this Agreement to certain
employees as necessary to fulfill the terms hereof, accountants, attorneys, and
lenders on the condition that such person shall be advised as to the
confidentiality requirements of this paragraph 10.8. Except as required by law,
no publicity release or public announcement concerning this Agreement or the
transactions contemplated hereby shall be issued without advance written
approval of the form and substance thereof by Assignor and Assignee.
10.9 Captions. Section titles or captions contained herein
are inserted as a matter of convenience and for reference, and in no way define,
limit, extend or describe the scope of this Agreement.
10.10 Exhibits. All exhibits attached hereto shall be
incorporated herein by reference as if set out herein in full.
10.11 Binding Effect. Regardless of which party prepared or
communicated this Agreement, this Agreement shall be of binding effect between
Assignee and Assignor only upon its execution by an authorized representative of
each such party.
11.
<PAGE> 16
10.12 Construction. The parties acknowledge that each party
and its counsel have reviewed and revised this Agreement and 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 amendment or exhibits hereto.
10.13 Counterparts. This Agreement may be executed in
several counterparts, each of which shall be an original, but all of such
counterparts shall constitute one such Agreement.
10.14 Further Assurances. Assignee and Assignor shall make,
execute, and deliver such documents and undertake such other and further acts as
may be reasonably necessary to carry out the intent of the parties hereto.
10.15 Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of California.
10.16 Entire Agreement. This Agreement embodies the entire
agreement between Assignee and Assignor in connection with this transaction.
This Agreement cannot be modified except in writing signed by all parties.
10.17 Waiver of Jury Trial. Assignor and Assignee each waive
trial by jury in any action or other proceeding (including counterclaims),
whether at law or equity, brought by Assignor or Assignee against the other on
matters arising out of or in any way related to or connected with this Agreement
or any transaction contemplated by, or the relationship between Assignor and
Assignee, or any action or inaction by any party under this Agreement.
(Remainder of Page Intentionally Left Blank)
12.
<PAGE> 17
IN WITNESS WHEREOF, Assignee and Assignor have executed and
delivered this Agreement as of the Effective Date.
"Assignor"
LOCKHEED MARTIN CORPORATION,
a Maryland corporation
By: ____________________________________
Print Name:_____________________________
Its:____________________________________
"Assignee"
NETWORK APPLIANCE, INC., a California
corporation
By:_____________________________________
Name:___________________________________
Its:____________________________________
13.
<PAGE> 18
Landlord hereby consents to Assignor entering into the foregoing Agreement of
Assignment of Lease, subject to the following conditions: (a) no assignment of
the Lease or other transfer of any of Assignor's rights or interest therein or
thereunder shall be consummated or effective unless and until the closing of the
sale of the fee interest in the Real Property (the "Sale Closing") shall have
occurred pursuant to the Real Property Purchase Agreement, and (b) on or prior
to the Sale Closing, Assignor and Assignee shall have executed and delivered to
Landlord a General Release substantially in the form attached as an exhibit to
the Real Property Purchase Agreement. Nothing in this consent or in the Real
Property Purchase Agreement shall be construed as conferring upon Assignor or
any other third party any rights under the Real Property Purchase Agreement.
Neither Assignor nor any third party is intended to be a third-party beneficiary
under the Real Property Purchase Agreement.
TRINET ESSENTIAL FACILITIES XII, INC.,
a Maryland corporation
By:___________________________________
Print Name:___________________________
Its:__________________________________
Date: September 3, 1999
14.
<PAGE> 19
EXHIBIT A
CONSENT AND ESTOPPEL CERTIFICATE
Date: ________________, 19____.
____________________
____________________
____________________
____________________
Re: Lease dated ________________ ("Lease") between
____________________________________ ("Tenant") and
______________________________ ("Landlord"); Leased Premises:
_______________________ square feet in Suite/Floor ______ ("Leased
Premises")________________________________________________________
Ladies and Gentlemen:
The undersigned, as Landlord under the above-referenced Lease,
hereby represents, warrants and certifies to __________ ("Assignee") the truth
and accuracy of the foregoing descriptions and the following statements:
1. Attached hereto as Schedule 1 is a complete, true and correct
copy of the Lease and, except as identified to Assignee in writing and attached
hereto together with the Lease, there are no modifications, amendments,
supplements or understandings, oral or written, amending, supplementing or
changing the terms of the Lease.
2. The Lease is in full force and effect.
3. To the actual knowledge of Landlord, (a) there is no default
under the Lease on the part of Tenant or Landlord, and (b) there are no existing
conditions which upon giving notice or lapse of time or both would constitute a
default under the Lease.
4. Landlord has no claim against Tenant for any security, rental,
cleaning or other deposits, except for a security deposit under the Lease in the
amount of $______.
5. Landlord has not entered into any assignment or other
agreement transferring any of its interest in the Lease or the Leased Premises
other than that certain Purchase Agreement executed by Landlord and Assignee.
6. There has not been filed by or against Landlord a petition in
bankruptcy, voluntary or otherwise, any assignment for the benefit of creditors,
any petition seeking reorganization or arrangement under the bankruptcy laws of
the United States, or any state thereof, or any other action brought under said
bankruptcy laws with respect to Landlord.
EXHIBIT A
A-1.
<PAGE> 20
This Estoppel Certificate is made to Assignee in connection with
the prospective purchase by Assignee of the Tenant's interest in the Lease. This
Estoppel Certificate may be relied on by Assignee in connection with such
purchase.
Very truly yours,
"Landlord"
___________________________________
By:________________________________
Its:_______________________________
EXHIBIT A
A-2.
<PAGE> 21
EXHIBIT B
ASSIGNMENT OF LEASE
This ASSIGNMENT OF LEASE ("Assignment") is entered into this ___
day of _______________, 1999 (the "Effective Date"), by and between LOCKHEED
MARTIN CORPORATION, a Maryland corporation ("Assignor"), NETWORK APPLIANCE,
INC., a California corporation ("Assignee"), and ________________________, a
_____________ _______________________ ("Landlord").
RECITALS
A. Assignor, as tenant, and Landlord, as landlord, are now
parties to that certain ___________________ ____________________________, dated
________________ (the "Lease"), pursuant to which Assignor leases from Landlord
approximately 175,000 square feet of space located at 1260 Crossman Avenue,
Sunnyvale, California and more particularly described in the Lease. The Lease is
attached hereto as Exhibit A and incorporated herein by this reference.
B. Assignor desires to assign the Lease to Assignee, and Assignee
desires to accept the assignment of the Lease on the terms and conditions set
forth herein.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and
promises of the parties, the parties hereto agree as follows:
1. ASSIGNMENT. As of the Effective Date, Assignor assigns and
transfers to Assignee , without reservation, all of Assignor's right, title and
interest in and to the Lease, and Assignee hereby accepts the assignment in
accordance with the terms of this Agreement.
2. ASSUMPTION. As of the Effective Date, Assignee shall assume
and be bound by all of Assignor's right, title, interest, obligations and
liabilities as tenant under the terms of the Lease.
3. CONSIDERATION. As consideration for the assignment of the
Lease from Assignor to Assignee, Assignee shall pay to Assignor on or before the
Effective Date, the sum of Ten Million and No/100 Dollars ($10,000,000.00).
4. SUCCESSORS. This Assignment shall be binding on, and inure to
the benefit of, the parties hereto, their successors-in-interest, and assigns.
EXHIBIT B
B-1.
<PAGE> 22
5. COUNTERPARTS. This Assignment may be executed in two or more
counterparts, each of which shall be deemed an original, but when taken together
shall constitute one entire agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment as of the day and year first above written.
"Assignor"
LOCKHEED MARTIN CORPORATION,
a Maryland corporation
By:__________________________________
Print Name:__________________________
Title:_______________________________
"Assignee"
NETWORK APPLIANCE, INC.,
a California corporation
By:__________________________________
Print Name:__________________________
Title:_______________________________
EXHIBIT B
B-2.
<PAGE> 23
Schedule 1
LEASE
EXHIBIT B
B-3.
<PAGE> 24
EXHIBIT C
BILL OF SALE
For valuable consideration, receipt of which is acknowledged,
___________________________, a _______________ ("Assignor") grants, sells,
transfers and assigns to _______________________________________________________
("Assignee") all of the Personal Property and Due Diligence Materials described
in that certain Agreement of Assignment of Lease (the "Agreement") dated
____________, 19___ entered into by and between Assignor and Assignee,
including, without limitation, that certain Personal Property described in
Schedule 1 attached hereto.
Assignor hereby covenants with, and warrants to, Assignee that
Assignor is the lawful owner of the Personal Property and Due Diligence
Materials, and that the Personal Property and Due Diligence Materials are free
from the rights and claims of others, including any leases, financing agreements
and/or encumbrances.
IN WITNESS WHEREOF, Assignor has executed this Bill of Sale this
_______ day of ________, 19____.
____________________________________
By:_________________________________
Title:__________________________
EXHIBIT C
C-1.
<PAGE> 25
EXHIBIT D
ASSIGNMENT OF INTANGIBLE PROPERTY
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby expressly acknowledged, ___________________, a
_______________________ ("Assignor"), hereby assigns, transfers and conveys to
_______________________________ ("Assignee"), all of Assignor's right, title and
interest in and to the Intangible Property, as that term is defined in that
certain Agreement of Assignment of Lease (the "Agreement") dated ___________,
19___ entered into by and between Assignor, as Assignor, and Assignee, as
Assignee; provided, however, such Intangible Property shall only include those
Service Contracts more particularly described in Schedule 1 attached hereto
(hereinafter referred to as the "Assigned Contracts").
Assignee hereby assumes and agrees to keep, perform and fulfill
all of Assignor's obligations as obligor under the Assigned Contracts. Assignee
also agrees to indemnify, protect, defend and hold Assignor harmless from and
against any and all claims, damages, losses, costs and expenses (including
attorneys' fees) arising in connection with the Assigned Contracts and relating
to the period after Closing.
Assignor hereby covenants and warrants that it has performed all
of the obligations to be performed by Assignor pursuant to and in accordance
with, or with respect to, the Assigned Contracts and agrees to indemnify,
protect, defend and hold Assignee harmless from and against any and all claims,
damages, losses, costs and expenses (including attorneys' fees) arising in
connection with the Assigned Contracts and relating to the period prior to
Closing, including the date of Closing.
Assignor hereby covenants with, and warrants to, Assignee that
Assignor is the lawful owner of the Intangible Property and that the Intangible
Property is free from the rights and claims of others, including any leases,
financing agreements and/or encumbrances.
This Assignment of Intangible Property is given pursuant to the
Agreement.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment of Intangible Property as of ______________, 199__.
_____________________________ __________________________________
By:__________________________ By:_______________________________
Title:___________________ Title:________________________
EXHIBIT D
D-1.
<PAGE> 26
EXHIBIT E
CLOSING CERTIFICATE
This Closing Certificate is made and delivered by the undersigned
Assignor with reference to that certain Agreement of Assignment of Lease, dated
_______________, 199__, ("Agreement") between Assignor and
________________________________ ("Assignee").
Assignor hereby restates and reaffirms its representations and
warranties set forth in Section 6.2 of the Agreement with full force and affect
as if set forth fully herein and made and delivered on the date hereof without
any exception or qualification.
"Assignor"
_____________________________________
By___________________________________
Its________________________________
Dated: ________________________, 1999
EXHIBIT E
E-1.
<PAGE> 27
EXHIBIT F
ACCESS AGREEMENT
This Access Agreement ("Agreement"), grants to NETWORK APPLIANCE,
INC., a California corporation and its agents, consultants and experts
(hereinafter collectively "Permittee") the right to enter the real property
commonly known as 495 Java Drive, Sunnyvale, California (the "Property") and
perform the activities described below.
RECITALS
A. The Property is occupied by Lockheed Martin Corporation, a Maryland
corporation ("LMC"), and owned by TriNet Essential Facilities XII, Inc., a
Maryland corporation ("TriNet").
B. In order for Permittee to perform due diligence for the purpose of
purchasing the Property, Permittee seeks to gain access to the Property for the
purpose of performing inspections and investigations, including, but not limited
to, an environmental assessment, structural and soils tests, roof sampling, and
the preparation of a survey of the Property (collectively, the "Work").
AGREEMENT
Subject to the limitations and conditions set forth below, LMC
grants to Permittee, as of the date of mutual execution hereof, the right to
enter onto the Property for the limited purposes set forth below:
1. This Agreement authorizes Permittee to perform the Work as described
above, at Permittee's expense, on the Property subject to the terms and
conditions set forth herein. Permittee will notify LMC and TriNet forty-eight
(48) hours in advance of when Permittee intends to perform Work on the Property.
Permittee will provide LMC and TriNet with a work plan describing the task to be
performed on the Property in advance of the commencement of Work. Permittee
shall not drill boreholes or wells without first obtaining the consent of
representatives of LMC and TriNet as to the precise location of the boreholes
and wells, which consent shall not be unreasonably withheld or delayed.
Permittee shall contact John Macchi of LMC at (408) 734-6115 and James Pierre of
TriNet at (415) 391-4300 to obtain consent for boreholes and wells.
2. The commencement date of this Agreement shall be the date on which it
is fully executed by the parties hereto.
3. Prior to commencement of the Work, Permittee shall obtain from any
City, County or other local, state or federal authority having jurisdiction over
any aspect of the Work, all required permits, authorizations, and approvals. All
Work performed by Permittee pursuant to this Agreement shall be completed in
compliance with all applicable codes, ordinances, laws,
EXHIBIT F
F-1.
<PAGE> 28
regulations and orders, and in a workmanlike and professional manner, and so as
not to unreasonably disturb LMC as occupant of the Property.
4. If Permittee drills through any impervious layer of material between
distinct groundwater bearing zones, it shall close the borehole or complete the
wells in an appropriate manner. Removal and disposal of soil, drilling mud,
extracted groundwater, and any other materials or wastes from the Property
generated by Permittee shall be the responsibility of Permittee, and such
removal and disposal shall be completed by Permittee promptly upon completion of
drilling activities and groundwater sampling, but in no event later than fifteen
(15) days after the completion of drilling activities and groundwater sampling.
If access to LMC's facilities, including parking, will be obstructed during or
after drilling, sampling or surveying activities, Permittee shall obtain prior
approval from LMC to conduct such activities, which approval shall not be
unreasonably withheld or delayed. If requested by LMC or TriNet, Permittee shall
provide LMC and/or TriNet with split samples from the boreholes immediately upon
collection of the samples, and thereafter shall not be responsible for
maintaining the integrity of the split sample.
5. Permittee shall make available to and send to LMC and TriNet any and
all test results Permittee gathers within fifteen (15) days from the date of
completion of such testing or surveying. Permittee shall not release or disclose
any test results to any third party unless (i) Permittee has received written
approval from LMC and TriNet as to the release or disclosure of such
information, (ii) Permittee is required by law to release or disclose such
information, or (iii) such test results are released to Permittee's agents,
lawyers, experts or consultants in order to ascertain the impact thereof. Copies
of all test results and surveys shall be sent to LMC and TriNet at the following
respective addresses:
LOCKHEED MARTIN CORPORATION
c/o LMC Properties, Inc.
100 South Charles Street, Suite 1400
Baltimore, MD 21220
Attn: Ms. Terri E. Beattie
Telephone: (410) 468-1007
Facsimile: (410) 468-1079
TRINET CORPORATE REALTY TRUST, INC.
One Embarcadero Center, Suite 3300
San Francisco, CA 94111
Attention: Mr. James Pierre
6. All work performed by Permittee under this Agreement shall be
performed by Permittee at its expense.
7. Permittee certifies that it has a policy or policies of comprehensive
liability insurance with respect to its activities permitted under this
Agreement as well as those of its experts and consultants, that provide personal
and broad form property damage coverage for not
EXHIBIT F
F-2.
<PAGE> 29
less than Two Million Dollars ($2,000,000.00) combined single limit for bodily
injury, death and property damage liability. The insurance carried pursuant to
this Agreement shall name LMC and TriNet as an additional insured. Permittee
shall send to LMC and TriNet a Certificate of Insurance evidencing insurance
coverage required by this Section 7 prior to access by Permittee to the
Property.
8. Permittee hereby assumes responsibility and liability for and shall
indemnify, defend and hold harmless LMC and TriNet for any and all costs,
claims, liabilities, losses, damages for expenses (including without limitation
attorney's fees and costs) resulting from the work performed on the Property
pursuant to this Agreement by Permittee or by any other person or Persons
performing such services for Permittee. The foregoing obligation shall survive
termination of this Agreement.
9. The Permittee shall be responsible, at Permittee's sole expense, for
repairing any damage caused to the Property by Permittee as a result of the Work
or Permittee's access to the Property. All repairs shall be made promptly upon
completion of the Work.
10. The authorization granted herein to Permittee to enter onto the
Property shall terminate upon completion of the Work and the Work repairs unless
this Agreement is extended by mutual consent of the parties.
11. The access granted herein is exclusive to Permittee and is not
assignable.
(Remainder of Page Intentionally Left Blank)
EXHIBIT F
F-3.
<PAGE> 30
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date written below.
PERMITTEE LMC
NETWORK APPLIANCE, INC., LOCKHEED MARTIN CORPORATION,
a California corporation a Maryland corporation
By: ________________________________ By: _________________________________
Name:_______________________________ Name:________________________________
Title:______________________________ Title:_______________________________
Date:_______________________________ Date:________________________________
TRINET
TRINET ESSENTIAL FACILITIES XII, INC.,
a Maryland corporation
By: ________________________________
Name:_______________________________
Title:______________________________
Date:_______________________________
EXHIBIT F
F-4.