North Carolina-Research Triangle Park Purchase and Sale Agreement - Cisco Systems Inc. and Network Appliance Inc.
PURCHASE AND SALE AGREEMENT
Seller: CISCO SYSTEMS, INC.,
A CALIFORNIA CORPORATION
Buyer: NETWORK APPLIANCE, INC.,
A DELAWARE CORPORATION
Dated as of: July_______, 2004
Property: Research Triangle Park Site 12
Buildings 13, 14 and 15
7301-13 Kit Creek Road
7301-14 Kit Creek Road
7301-15 Kit Creek Road
Research Triangle Park, North Carolina 27709
SUBMISSION NOT AN OPTION
THE SUBMISSION OF THIS AGREEMENT FOR EXAMINATION AND NEGOTIATION DOES NOT
CONSTITUTE AN OFFER TO SELL, A RESERVATION OF, OR OPTION FOR THE PROPERTY AND
SHALL VEST NO RIGHT IN ANY PARTY. BUYER OR ANYONE CLAIMING UNDER OR THROUGH
BUYER SHALL HAVE THE RIGHTS TO THE PROPERTY AS SET FORTH HEREIN AND THIS
AGREEMENT SHALL BECOME EFFECTIVE AS A AGREEMENT ONLY UPON EXECUTION,
ACKNOWLEDGMENT AND DELIVERY THEREOF BY SELLER AND BUYER, REGARDLESS OF ANY
WRITTEN OR VERBAL REPRESENTATION OF ANY AGENT, MANAGER OR EMPLOYEE OF SELLER TO
THE CONTRARY.
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PURCHASE AND SALE AGREEMENT
Buyer and Seller hereby enter into this Purchase and Sale Agreement
(this "Agreement"), intending to be legally bound hereby, as of July ____, 2004
(the "Effective Date") (i.e., the date both parties have executed this
Agreement).
1. DEFINED TERMS:
a. The terms listed below shall have the following
meanings throughout this Agreement:
Buyer: Network Appliance, Inc., a Delaware corporation
Buyer's Address: 495 East Java Drive
Sunnyvale, California 94089
Attn: Vice President, Work Place Resources
Closing Date: The Effective Date, or such later date (but no later
than July 30, 2004) as may be agreed to in writing
between Buyer and Seller.
Improvements: A four story office building (Building 13), a three
story office building (Building 14), and a three
story office building (Building 15), all with
accessory surface parking areas and other
improvements located on or affixed to the Land,
including any and all, heating, air conditioning and
ventilation lines, utilities and boilers, fixtures,
parking areas, and landscaping.
Leases: None.
Land: That certain parcel of land located in Research
Triangle Park, Wake County, North Carolina, more
particularly described on Exhibit A attached hereto,
together with all rights and interests appurtenant
thereto.
Operating
Agreements: (i) all assignable contracts and agreements
(collectively, the "Service Contracts") (it being
understood that there are no Service Contracts), and
(ii) all assignable licenses, permits, plans,
drawings, soils reports, engineering reports,
warranties, guaranties, and indemnities in favor of
the Seller relating to or affecting the ownership,
maintenance or use of the Property, together with any
and all amendments, modifications or supplements
thereto (collectively, the "Intangibles").
Personal Property: All items of tangible personal property
owned by Seller located at or attached and
appurtenant to or forming a part of the Property.
Property: The Real Property, the Personal Property, and the
Operating Agreements.
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Property Address: Research Triangle Park Site 12
Buildings 13, 14 and 15
7301-13 Kit Creek Road
7301-14 Kit Creek Road
7301-15 Kit Creek Road
Research Triangle Park, North Carolina 27709
Purchase Price: $23,968,760.00, all cash.
Real Property: The Land and the Improvements.
Review Period: The period commencing as of June 30, 2004 (which the
parties acknowledge is the commencement date of the
Review Period even though such date is before the
date this Agreement is fully executed), and ending
immediately prior to the Closing.
Seller: Cisco Systems, Inc., a California corporation
Seller's Address: 170 West Tasman Drive
San Jose, California 95134-1706
Attn: Director, Americas Real Estate
Tenants: None.
Title Company/ Chicago Title Insurance Company
Escrow Agent: 150 Fayetteville Street Mall, Suite 1130 (27601)
P.O. Box 1880
Raleigh, North Carolina 27602-1883
Attn: Ms. Dixie R. Ladrie
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b. The following terms are defined in the referenced portion of this
Agreement:
Defined Term Defined In
Agreement Preliminary Statement
Buyer's Agents Section 4
Closing Section 7.a
Contingencies Section 5.a
Deed Section 2.a
Forced Removal Title Exceptions Section 6.c
General Instrument Section 2.b
Hazardous Substances Section 11.k
Mortgage Exceptions Section 6.c
Notice Section 21
Review Materials Section 4
Seller's Documents Section 8.a
Specimen Title Policy Section 6.a
Survey Section 6.a
Title Commitment Section 6.a
Title Requirements Section 6.a
2. PURCHASE OF PROPERTY: PAYMENT OF PURCHASE PRICE.
Seller shall sell the Property to Buyer, and Buyer shall purchase the
Property from Seller, subject to all of the terms, covenants and conditions
hereinafter set forth in this Agreement.
a. Real Property. Seller shall sell the Real Property to
Buyer, and Buyer shall purchase the Real Property from Seller, on all of the
mutual terms, covenants and conditions hereinafter set forth in this Agreement.
The Real Property shall be conveyed to Buyer by a Special Warranty Deed ("DEED")
in the form attached hereto as Exhibit B and incorporated herein by this
reference.
b. Other Interests. All other interests of Seller in the
Property (including the Personal Property) shall be transferred and assigned by
Seller to Buyer pursuant to the General Instrument of Transfer ("GENERAL
INSTRUMENT") in the form annexed hereto as Exhibit C and incorporated herein by
this reference.
3. [Intentionally Deleted]
4. DELIVERY OF MATERIALS FOR REVIEW; CONFIDENTIALITY.
In connection with Buyer's acquisition of the Property, Seller has
delivered to Buyer or made available to Buyer for its review at the Property, at
Seller's Address or at the offices of O'Brien/Atkins Associates, PA, located in
Research Triangle Park, North Carolina, any operating files maintained by Seller
or its property manager in connection with the leasing, current maintenance
and/or management of the Property, including, without limitation, operating
agreements, insurance policies, bills, invoices, receipts and other general
records relating to the
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income and expenses of the Property, correspondence, surveys, plans and
specifications, warranties for services and materials provided to the Property,
environmental audits and similar materials, but excluding materials not directly
related to the leasing, current maintenance and/or management of the Property
such as, without limitation, Seller's internal memoranda, financial projections,
budgets, appraisals, accounting and tax records and similar proprietary,
elective or confidential information ("REVIEW MATERIALS"). In addition to the
Review Materials, Seller has made available to Buyer at such place or places at
the Property, in the offices of the property manager or elsewhere as the same
may be located, copies of all other materials and other information in
connection with the leasing, current maintenance and/or management of the
Property, to the extent the same were requested by Buyer.
The Review Materials and all materials, books and records made
available to or examined by or on behalf of Buyer pursuant to this Agreement
shall: (i) be held in strict confidence by Buyer; (ii) not be used for any
purpose other than the investigation and evaluation of the Property by Buyer and
its lenders, attorneys, engineers, consultants and representatives
(collectively, "BUYER'S AGENTS"); and (iii) not be disclosed, divulged or
otherwise furnished to any other person or entity except to Buyer's Agents or as
required by law. If this Agreement is terminated for any reason whatsoever,
Buyer shall return to Seller all of the Review Materials, in the possession of
Buyer and Buyer's Agents. The provisions of this Section shall survive the
termination of this Agreement.
5. CONTINGENCIES.
a. Contingencies to Purchase. Buyer's obligation to
purchase the Property is subject to the satisfaction of the contingencies
described below ("CONTINGENCIES TO PURCHASE").
(1) Seller shall have delivered to Escrow Agent
or Buyer all of the items required to be delivered to Escrow Agent or
Buyer pursuant to the terms of this Agreement, including but not
limited to, those required to be delivered by Seller pursuant to
Section 8.
(2) All of the representations and warranties of
Seller contained in this Agreement shall be true and correct in all
material respects as of the Closing Date (with appropriate
modifications permitted under this Agreement or not materially adverse
to Buyer).
(3) Seller shall have performed and observed, in
all material respects, all covenants and agreements of this Agreement
to be performed and observed by Seller as of the Closing Date.
b. Contingencies to Sell. Seller's obligation to sell
the Property is subject to the satisfaction of the contingencies described below
("CONTINGENCIES TO SELL").
(1) Seller shall have received the Purchase
Price as adjusted pursuant to and payable in the manner provided for in
this Agreement.
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(2) Buyer shall have delivered to Escrow Agent
or Seller all of the items required to be delivered to Escrow Agent or
Seller pursuant to the terms of this Agreement, including but not
limited to, those provided for in Section 8.
(3) All of the representations and warranties of
Buyer contained in this Agreement shall be true and correct in all
material respects as of the date of Closing.
(4) Buyer shall have performed and observed, in
all material respects, all covenants and agreements of this Agreement
to be performed and observed by Buyer as of the date of Closing.
(5) Seller shall have received written approval
of this transaction from Research Triangle Foundation of North
Carolina.
6. TITLE. At Closing, Seller shall convey and transfer
to Buyer such title to the Property as will enable the Title Company to issue to
Buyer, at Buyer's expense, an ALTA Owner's Policy of Title Insurance (the "TITLE
POLICY") covering the Property, in the full amount of the Purchase Price.
Notwithstanding anything contained herein to the contrary, the Property shall be
conveyed subject to the following matters, which shall be deemed to be Permitted
Exceptions: (i) the lien of all ad valorem real estate taxes and assessments not
yet due and payable as of the date of Closing, subject to adjustment as herein
provided; (ii) local, state and federal laws, ordinances or governmental
regulations, including but not limited to, building and zoning laws, ordinances
and regulations, now or hereafter in effect relating to the Property; and (iii)
items appearing of record (other than the Forced Removal Title Exceptions (as
defined below)) or shown on the Survey.
(a) Title Commitment; Survey. Buyer, at Buyer's expense,
shall have the right to cause the issuance of (i) a commitment of the Title
Company ("TITLE COMMITMENT") for an owner's title insurance policy in the form
of a specimen ALTA Form B (1987) with respect to the Real Property ("SPECIMEN
TITLE POLICY"), containing such endorsements, affirmative coverages, deletions
of printed exceptions and title exceptions, and reinsurance agreements as Buyer
shall approve, and Title Company agrees to issue, and specifying Title Company's
requirements relating to the issuance of such Specimen Title Policy ("TITLE
REQUIREMENTS") and (ii) an ALTA survey of the Real Property by a duly licensed
surveyor showing all physical conditions affecting the Real Property sufficient
for the deletion of the survey exception in accordance with the Title
Requirements ("SURVEY").
(b) [Intentionally Deleted]
(c) Forced Removal Title Exceptions. Seller hereby agrees
that it shall remove (x) a mechanic's or materialman's lien for work performed
on the Property at the request of Seller; or (y) a mortgage or related security
documents or similar encumbrance given to secure indebtedness for money borrowed
by Seller ("MORTGAGE EXCEPTIONS") (all of the foregoing in (x) and (y))
hereinafter collectively referred to as "FORCED REMOVAL TITLE EXCEPTIONS").
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7. CLOSING REQUIREMENTS.
a. The Closing. On the Closing Date, all matters to be
performed under this Agreement incident to the sale of the Property, and the
payment of the Purchase Price (collectively, "CLOSING") shall be performed at
the offices of Escrow Agent in Raleigh, North Carolina, or other mutually
acceptable location agreed to in writing by Buyer and Seller. The Closing shall
commence at 10:00 a.m. Notwithstanding anything in this Section 7.a to the
contrary, the parties agree to use commercially reasonable efforts to pre-close
the transaction contemplated hereby (i.e., sign documents into escrow) on the
business day immediately preceding the then-scheduled date of Closing.
b. Possession and Condition of the Property. Without
limiting the generality of the foregoing, at Closing full possession of the Real
Property is to be delivered to Buyer, subject to the Permitted Exceptions.
8. CLOSING DELIVERIES.
a. Seller's Deliveries. Seller shall deliver or cause to
be delivered the following documents ("SELLER'S DOCUMENTS") at or prior to the
Closing:
(1) The duly executed and acknowledged Deed.
(2) A certification duly executed by Seller
under penalty of perjury stating that Seller is not a "foreign person"
within the meaning of Section 1445 of the Internal Revenue Code of
1986, as amended, in the form annexed hereto as Exhibit E.
(3) Originals (or copies thereof if originals
are not available) of all documents and materials in the possession of
Seller or Seller's agents assigned pursuant to the General Instrument.
(4) Originals (or copies thereof if originals
are not available) of all Review Materials if not already provided, and
all other books and records of Seller in the possession or control of
Seller pertaining in a material way to the operation and management of
the Property (excluding materials not directly related to the
maintenance, operation or management of the Property such as, without
limitation, Seller's internal memoranda, financial projections,
budgets, appraisals, accounting and income tax records and similar
proprietary, elective or confidential information).
(5) [Intentionally Deleted]
(6) [Intentionally Deleted]
(7) Such affidavits as the Title Company may
reasonably require in order to omit from any title insurance policy
issued to Buyer or Buyer's mortgagee except for (i) parties in
possession and (ii) mechanic's liens created by or through Seller.
(8) Any corporate, partnership or other
authorization documents necessary to record the Deed.
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(9) Evidence as the Title Company may reasonably
require as to the authority of any individuals or constituent members
in Seller to execute any instruments executed and delivered by Seller
at Closing.
(10) Any of the following which are requested by
Buyer and in the possession of or reasonably available to Seller: any
and all keys, and lock and safe combinations.
(11) Additional documents reasonably required by
the Title Company to consummate the transaction expressly contemplated
by this Agreement.
b. Mutual Deliveries. Buyer and Seller shall deliver or
cause to be delivered the following at or prior to the Closing:
(1) Executed counterparts of the General
Instrument; and
(2) A closing statement reflecting the
adjustments made at the Closing and described in Section 9 hereof.
c. Buyer's Deliveries. Buyer shall, at or prior to the
Closing:
(1) Pay to Seller the full amount of the
Purchase Price (plus any additional funds necessary to pay Buyer's
share of closing costs and prorations, as hereinafter set forth) by
wire transfer of immediately available funds; and
(2) [Intentionally Deleted]
(3) Deliver evidence as the Title Company may
reasonably require as to the authority of any individuals or
constituent members in Buyer to execute any instruments executed and
delivered by Buyer at Closing.
9. CLOSING COSTS AND PRORATIONS. At Closing, closing costs shall
be paid and prorations made as follows:
a. Closing Costs. Seller shall pay: (a) the fees of any
counsel representing it in connection with this transaction; (b) one-half (1/2)
of any escrow fee which may be charged by the Title Company; and (c) all state,
county, or local transfer (excise) taxes. Buyer shall pay: (u) the fees of any
counsel representing it in connection with this transaction; (v) recording
charges and costs; (x) the fee for any title exam and the title insurance
premium for the Owner's title insurance policy issued at Closing to Buyer by the
Title Company; (y) the costs for the Survey; and (z) one-half (1/2) of any
escrow fee charged by the Title Company.
b. Prorations. The Purchase Price shall be subject to
the following prorations. All such prorations shall be made so that Buyer has
the benefit of rent and bears the burden of expenses as of 12:01 a.m. on the
date of Closing.
(1) Taxes. Non-delinquent real property taxes
and non-delinquent general and special assessments shall be prorated
through the Closing Date on the basis of
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the calendar year for such taxes and assessments. Delinquent real
property taxes or delinquent general or special assessments shall be
paid at Closing, and Seller shall be charged an amount equal to that
portion of such taxes or assessments which relates to the period prior
to Closing. If the Closing Date shall occur before the real property
tax rate for such calendar year is fixed, the apportionment of taxes
shall be made on the basis of the taxes assessed for the preceding
calendar year. After the real property taxes are finally fixed for the
calendar year in which the Closing Date occurs, Seller and Buyer shall
make a recalculation of the apportionment of such taxes, and Seller or
Buyer, as the case may be, shall make an appropriate payment to the
other based on such recalculation. To the extent Seller has undertaken
to obtain any real estate tax abatement, the amount of the net proceeds
of such tax abatement shall be prorated through the Closing Date, if,
as and when such proceeds are paid by the applicable governmental
taxing authority.
(2) Utilities. Final readings on all gas, water
and electric meters shall be made as of the Closing Date, if possible.
If final readings are not possible, gas, water and electricity charges
will be prorated based on the most recent period for which costs are
available. Any deposits made by Seller with utility companies shall be
returned to Seller by such utility companies. Buyer shall be
responsible for making all arrangements for the continuation of utility
services.
Notwithstanding any of the foregoing provisions: the Personal Property
is included in this sale, without further charge, except that Buyer shall pay to
Seller the amount of any and all sales or similar taxes payable in connection
with the Personal Property, if any, and Buyer shall execute and deliver any tax
returns required of it in connection therewith, said obligations of Buyer to
survive Closing.
10. DEFAULT.
a. Buyer's Default. If Seller is not in default of
Seller's representations, warranties and covenants under this Agreement and is
ready, willing and able to convey the Property in accordance with this
Agreement, and Buyer fails to consummate this Agreement and take title, then the
parties hereto recognize and agree that the damages that Seller will sustain as
a result thereof will be substantial, but difficult if not impossible to
ascertain and Seller shall, as its sole remedy, be entitled to retain the
Deposit as liquidated damages, and not as a penalty and neither party shall have
any further rights or obligations with respect to the other under this
Agreement, except for the those which are expressly stated to survive
termination of this Agreement. Buyer agrees not to interpose any defense or
otherwise seek to interfere with Seller's retention and ownership of the
Deposit.
b. Seller's Default. In the event that Buyer is not in
default of Buyer's representations, warranties and covenants under this
Agreement and is ready, willing and able to take title to the Property in
accordance with this Agreement, and Seller fails to consummate this Agreement
and convey title as set forth herein, Buyer shall have an action for specific
performance of Seller's obligations to execute the documents required to convey
the Property to Buyer, it being understood that the remedy of specific
performance shall not be available to enforce any other obligation of Seller
hereunder; alternatively, Buyer may elect to terminate this Agreement and
recover the Deposit. In either such case, Buyer shall have no right to an action
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for damages against Seller other than for the return of the Deposit. 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 sixty (60) following the date upon which Closing was to
have occurred.
11. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller hereby makes
the following representations and warranties to Buyer as of the Effective Date:
a. Due Authorization. Seller is duly organized, validly
existing, and in good standing under the laws of the State of California, has
all necessary power and authority to own and use its properties and to transact
the business in which it is engaged, and has full power and authority to enter
into this Agreement, to execute and deliver the documents and instruments
required of Seller herein, and to perform its obligations hereunder. Seller is
duly authorized to execute and deliver, and perform this Agreement and all
documents and instruments and transactions contemplated hereby or incidental
hereto.
b. Leases. There are no leases or occupancy agreements
to which Seller is a party affecting the Property.
c. No Conflict. The execution and delivery of, and
consummation of the transactions contemplated by this Agreement is not
prohibited by, and will not conflict with, constitute grounds for termination
of, or result in the breach of any agreement or instrument to which Seller is
now a party or otherwise subject.
d. Notices. To Seller's knowledge, prior to the
Effective Date Seller has received no written notice or citation (a "NOTICE")
from any federal, state, county or municipal authority or any other party
alleging any fire, health, safety, building pollution, environmental, zoning or
other violation of any law, regulation, permit, order or directive in respect of
the Property or any part thereof which violation remains outstanding.
e. Legal Proceedings. Seller has received no written
notice of any actions, suits or proceedings, pending before any court,
commission, agency or other administrative authority against, or affecting the
Property which, if adversely determined, could individually or in the aggregate
have a materially adverse effect on title to the Property or any portion thereof
or which could in any material way interfere with the consummation by Seller of
the transaction contemplated by this Agreement.
f. [Intentionally Deleted]
g. Eminent Domain. Seller has received no written notice
from any governmental authority that any eminent domain proceedings relating to
the Property are pending, and to Seller's knowledge no such proceedings are
threatened.
h. No Other Contracts. There are no other written
agreements affecting the Property by which Purchaser would be bound other than
the Operating Agreements, the Permitted Exceptions and this Agreement (and the
closing documents executed by Buyer in connection herewith).
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i. Updating of Schedules Exhibits Representations and
Warranties. Seller shall modify, update and supplement all representations,
warranties, exhibits and schedules attached to or delivered in connection with
this Agreement through the Closing Date to the extent required to make such
representations, warranties, exhibits and schedules true, accurate and complete.
j. As-Is Purchase. As a material inducement to Seller to
execute this Agreement, Buyer acknowledges, represents and warrants that,
subject to and in reliance on the representations and warranties of Seller set
forth in this Section 11, upon the satisfaction or waiver of the Contingencies
(i) Buyer will have fully examined and inspected the Property, together with the
Review Materials and such other documents and materials with respect to the
Property which Buyer deems necessary or appropriate in connection with its
investigation and examination of the Property, (ii) Buyer will have accepted the
foregoing and the physical condition, value, presence/absence of Hazardous
Substances, financing status, use, leasing, operation, tax status, income and
expenses of the Property, (iii) except with respect to Seller's representations
and warranties as set forth in this Section 11 (subject to the limitations set
forth in this Section 11, including, without limitation, in subsections l and
m), the Property will be purchased by Buyer "AS IS" and "WHERE IS" and with all
faults and, upon Closing, Buyer shall assume responsibility for the physical
condition of the Property and (iv) Buyer will have decided to purchase the
Property solely on the basis of its own independent investigation. Except as
expressly set forth herein or in Seller's Documents, Seller has not made, does
not make, and has not authorized anyone else to make any representation as to
the present or future physical condition, value, presence/absence of Hazardous
Substances, financing status, leasing, operation, use, tax status, income and
expenses or any other matter or thing pertaining to the Property, and Buyer
acknowledges that no such representation or warranty has been made and that in
entering into this Agreement it does not rely on any representation or warranty
other than those expressly set forth in this Agreement or in Seller's Documents.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN SELLER'S DOCUMENTS, SELLER
MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED OR ARISING BY OPERATION
OF LAW, INCLUDING, WITHOUT LIMITATION, ANY WAY OF CONDITION, HABITABILITY,
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY. Seller
shall not be liable for or bound by any verbal or written statements,
representations, real estate broker's "setups" or information pertaining to the
Property furnished by any real estate broker, agent, employee, servant or any
other person unless the same are specifically set forth in this Agreement or in
Seller's Documents. The provisions of this Section l1.j. shall survive the
Closing. If Buyer shall proceed to Closing with actual knowledge of any matter,
or as to any matter set forth in the Review Materials which is in conflict with
any of Seller's representations, warranties or indemnities made in this
Agreement, Buyer shall be deemed to have waived such Seller's representations,
warranties or indemnities to the extent inconsistent with such actual knowledge
or the contents of such Review Materials.
k. Environmental Status. Except as disclosed in Exhibit
F and the additional reports and/or governmental files referred to therein, to
Seller's knowledge, Seller has received no written notification that any
governmental or quasi-governmental authority has determined that there are any
violations of any environmental statutes, ordinances or regulations affecting
the Property. As used herein, the term "HAZARDOUS SUBSTANCES" shall include,
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asbestos-containing materials, polychlorinated biphenyls, flammable materials,
explosives, radioactive materials, petroleum products and those materials or
substances now or heretofore defined as "hazardous substances," "hazardous
materials," "hazardous waste," "toxic substances," or other similar designations
under the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended, 42 U.S.C. Section 9601 et seq., the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901 et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801 et seq., the Federal Water Pollution
Control Act, 33 U.S.C. Section 1251 et seq., the Clean Air Act, 42 U.S.C.
Section 7401 et seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601
et seq., the Refuse Act, 33 U.S.C. Section 407 et seq., together with all
implementing regulations or any other applicable similar state federal, county,
regional, municipal or local law, statute, ordinance, rule or regulation
governing the control of substances dangerous to public health or safety as same
may be amended from time to time.
l. Limitation of Seller's Representations. All
representations and warranties made by Seller in this Agreement, unless
expressly provided otherwise, shall not survive the Closing. Where
representations and warranties are made in this Agreement to "Seller's
knowledge," such phrase shall mean and be limited to the actual knowledge of
Suzanne Cooper, Chris Kite and Thomas Colwell (the "DESIGNATED EMPLOYEES") and
shall not be construed, by imputation or otherwise, to refer to the knowledge of
Seller or any affiliate of Seller, to any property manager or to any officer,
agent, manager, representative or employee of Seller or any affiliate of Seller,
or to impose upon such Designated Employees any duty to investigate the matter
to which such actual knowledge, or the absence thereof, pertains.
m. Survival of Seller's Representations and Warranties.
The representations and warranties of Seller set forth in this Section 11, as
updated by the certificate of Seller to be delivered to Buyer at Closing in
accordance with Section 8.a(6) hereof, shall survive Closing for a period of
twelve (12) months. No claim for a breach of any representation or warranty of
Seller shall be actionable or payable (a) if the breach in question results from
or is based on a condition, state of facts or other matter which was actually
known to Buyer or disclosed in writing to Buyer prior to Closing, (b) unless the
valid claims for all such breaches collectively aggregate more than
Fifty-Thousand Dollars ($50,000.00), in which event the full amount of such
claims shall be actionable, and (c) 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 twelve (12) month period and an action
shall have been commenced by Buyer against Seller within ninety (90) days after
the termination of the survival period provided for above in this Section. Buyer
agrees to first seek recovery under any insurance policies and service contracts
prior to seeking recovery from Seller, and Seller shall not be liable to Buyer
if Buyer's claim is satisfied from such insurance policies and service
contracts. As used herein, the term "Cap" shall mean the total aggregate amount
of One Million Dollars ($1,000,000.00). In no event shall Seller's aggregate
liability to Buyer under this Agreement, for breach of any representation or
warranty of Seller in this Agreement or the certificate to be delivered by
Seller at Closing pursuant to Section 8.a(6) hereof or otherwise for any other
breach by Seller under this Agreement, exceed the amount of the Cap.
12. BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer hereby makes the
following representations and warranties to Seller as of the Effective Date:
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a. Due Authorization. Buyer is duly organized, validly
existing, and in good standing under the laws of the State of Delaware, is duly
qualified and in good standing under the laws of the State of North Carolina,
has full power to execute, deliver and carry out the terms and provisions of
this Agreement and has taken all necessary action to authorize the execution,
delivery and performance of this Agreement, and the individual(s) executing this
Agreement on behalf of Buyer has the authority to bind Buyer to the terms and
conditions of this Agreement.
b. Enforceability. This Agreement and all documents
required hereby to be executed by Buyer, when so executed, shall be legal,
valid, and binding obligations of Buyer, enforceable against Buyer in accordance
with their respective terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium, and other similar laws affecting the rights of
creditors generally and, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law).
13. GENERAL COVENANTS. The parties covenant to do the following.
a. [Intentionally Deleted]
b. Entry; Buyer's Inspection; Termination. During the
Review Period, Buyer and Buyer's Agents may enter the Property from time to time
(and without unreasonably interfering with the operation of the Property) for
purposes of (i) performing non-invasive physical tests (except that Buyer may
perform minor testing to determine the presence of asbestos-containing
materials, termites and other wood destroying insects, provided that all damage
resulting therefrom is promptly repaired by Buyer at its sole expense and to
Seller's reasonable satisfaction) and (ii) conduct any and all engineering,
environmental and other inspections at the Property and examine and evaluate
relevant agreements and documents within the possession of Seller or subject to
its control as Buyer may reasonably request. No soil and/or ground water
sampling shall be performed unless and until the location, scope and methodology
of such sampling and the environmental consultant selected by Buyer to perform
such sampling have all been approved by Seller. Prior to conducting any such
sampling, Buyer shall have a utility mark-out performed for the Property. Copies
of all environmental and engineering reports prepared by or on behalf of Buyer
with respect to the Property shall be provided promptly to Seller. With respect
to Buyer's right to inspect the Property, Buyer agrees that each inspection
shall be performed during normal business hours or at such other times as Seller
and Buyer shall mutually agree. Seller shall have the right, at its option, to
cause Seller's representative to be present at all inspections, reviews and
examinations conducted on the Property by Buyer. All communications in
connection with this Agreement and/or access to the Property shall be through
Suzanne Cooper and no one else. Such inspections, assessments and tests shall
not damage the Property in any respect, shall not be invasive in any respect
(unless Buyer obtains Seller's prior written consent), and shall be conducted in
accordance with standards customarily employed in the industry and in compliance
with all governmental laws, rules and regulations. Following each entry by Buyer
with respect to inspections and/or tests on the Property, Buyer shall restore
the Property to a condition which is as near to its original condition as
existed prior to any such inspections and/or tests. Buyer shall not contact any
third parties in connection with the Property without obtaining Seller's prior
consent and shall not disrupt Seller's activities on the Property. Buyer shall
obtain, pay for, and maintain at all times during the term of this Agreement,
insurance policies and minimum limits of coverage as designated below, and any
13
<PAGE>
other insurance required by law, regulation or order, with insurance companies
licensed to do business in the state in which Buyer's activities hereunder are
to be performed, with an A.M. Best's Insurance Rating of A:VIII or better. In no
way do these minimum requirements limit the liability assumed elsewhere in this
Agreement, including but not limited to Buyer's defense and indemnity
obligations.
(i) Workers' Compensation insurance as required by any
applicable law or regulation, and Employer's Liability insurance in amounts not
less than $1,000,000;
(ii) Commercial General Liability insurance on an
occurrence, not claims-made, basis, including coverage for bodily injury,
property damage, personal and advertising injury, products/completed operations,
contractual liability and cross liability, covering all operations by or on
behalf of Buyer arising out of or connected with this Agreement, with the
minimum limits of $1,000,000.00 per occurrence and $2,000,000.00 in the annual
aggregate, and including Seller as an additional insured, but only to the extent
of Buyer's indemnity obligations pursuant to this Agreement;
(iii) Automobile Liability insurance covering all Buyer's
owned, hired and non-owned vehicles used in connection with this Agreement,
providing coverage of $1,000,000.00 combined single limit; and
(iv) Umbrella and/or Excess Liability insurance on an
occurrence, not claims-made, basis, with minimum limits of $5,000,000.00 per
occurrence excess of Buyer's Employer's Liability, Commercial General Liability
and Automobile Liability policies, and with coverage terms at least as broad as
the underlying insurance
Buyer's insurance shall be primary to and noncontributory with any and all other
insurance maintained by or otherwise afforded to Seller. Except where prohibited
by law, Buyer's insurers shall waive all rights of recovery or subrogation
against Seller, but only to the extent of liabilities falling within Buyer's
indemnity obligations under this Agreement. Buyer shall deliver to Seller
certificates of insurance evidencing the coverages outlined above at the time
this Agreement is executed or within a reasonable time thereafter and within a
reasonable time after such coverage is renewed or replaced. All such
certificates shall provide that the insurer will endeavor to provide Seller with
30 days prior written notice in the event of cancellation or non-renewal of
coverage. The provisions of this Section 13.b shall survive the Closing or the
earlier termination of this Agreement.
c. [Intentionally Deleted]
d. Tenant Estoppels. No estoppels are required to be
obtained or delivered by Seller in connection with the transaction contemplated
by this Agreement.
14. USE OF PROCEEDS TO CLEAR TITLE. Any unpaid taxes, assessments,
water charges and sewer rents, together with the interest and penalties thereon,
which are due and payable on or before the Closing Date, and any other liens and
encumbrances which Seller is obligated to pay and discharge, together with the
cost of recording and filing any instruments necessary to discharge such liens
and encumbrances of record, may be paid out of the proceeds of the monies
14
<PAGE>
payable on the Closing Date provided satisfactory arrangements are made with the
Title Company to ensure obtaining and recording of discharges with respect to
the same.
15. SURVIVAL. The terms, covenants and indemnities contained in
this Agreement required to be operative after delivery of the Deed shall survive
delivery of the Deed without limitation as to time, unless a time limitation is
expressly provided, and shall not be deemed to have been merged in the Deed.
16. DAMAGE TO PROPERTY. If the Property or any part thereof (i) is
damaged by casualty or (ii) is taken by exercise of the power of eminent domain
prior to the Closing Date, and in the case of either such casualty or taking the
damage to the Property exceeds One Million Dollars ($1,000,000), as reasonably
determined by Seller, Buyer may terminate this Agreement by notice given to
Seller within ten (10) business days of the date Seller gives notice to Buyer of
such casualty or taking. If Buyer does so terminate this Agreement, Seller shall
promptly return the Deposit to Buyer. If Buyer does not so terminate this
Agreement or such damage does not exceed One Million Dollars ($1,000,000) the
parties shall proceed to Closing without any reduction in the Purchase Price
except as specifically provided below. At the Closing, Seller shall assign to
Buyer all insurance proceeds arising from the casualty, together with a credit
against the Purchase Price equal to the deductible amount under the applicable
insurance policy, or pay over or assign to Buyer all awards recovered or
recoverable on account of such taking. As an inducement to Buyer to agree to the
provisions of this Section 16, Seller represents to Buyer that Seller maintains
property insurance for the Property through a program of self insurance in an
amount equal to the full replacement cost of the Improvements, and Seller agrees
to continue coverage in such amount in effect through the Closing Date.
17. BROKERAGE COMMISSION. Seller and Buyer each warrant to the
other party that its sole contact with the other party or the Property regarding
this transaction has been directly with the other party. Nevertheless, Seller
has communicated with The Staubach Company ("STAUBACH") and Buyer has
communicated with Tri Properties ("TP") and Commercial Carolina Corporation
("CCC") in connection with the transaction contemplated by this Agreement.
Seller has agreed to pay a commission to Staubach in connection with the
transaction contemplated by this Agreement in the amount of one hundred thousand
dollars ($100,000.00). As an accommodation, Seller has agreed to pay a
commission directly to each of TP and CCC in connection with the transaction
contemplated by this Agreement in the amount of one quarter of one percent
(.25%) of the Purchase Price (collectively, the "Cisco Share"). Neither
Staubach, CCC nor TP shall be entitled to any other commission, brokerage fee,
or other compensation from Seller in connection with this transaction. Any
additional compensation which may be due to TP and CCC shall be payable from
Buyer only. The foregoing commissions shall be earned, due and payable only upon
consummation of Closing (including recordation of the Deed and receipt of
Seller's funds) and not otherwise. In the event Closing (including recordation
of the Deed and receipt of Seller's funds) does not occur, for whatever reason,
whether by default of Buyer or Seller, or otherwise, Staubach, TP and CCC hereby
waive any right to any fee or commission and any claim or right of claim to any
fee or commission, including, without limitation, a claim of frustration of
commission. Seller and Buyer further warrant to each other that no other broker
or finder can properly claim a right to a commission or finder's fee based upon
contacts between the claimant and the warranting party with respect to the other
party or the Property. Seller and Buyer shall indemnify, defend, protect and
hold the
15
<PAGE>
other party harmless from and against any loss, cost or expense, including, but
not limited to, reasonable attorneys' fees and court costs, resulting from any
claim for a fee or commission by any broker or finder in connection with the
Property and this Agreement resulting from the indemnifying party's actions or a
breach of any of the foregoing provisions. Without limiting the foregoing, Buyer
specifically agrees to indemnify Cisco for any amounts that may be payable to TP
or CCC over and above the Cisco Share and for any loss, cost or expense,
including, but not limited to, reasonable attorneys' fees and court costs,
resulting from CCC's or TP's failure to sign the signature block of this
Agreement. The foregoing indemnities shall survive the Closing.
18. SUCCESSORS AND ASSIGNS. The terms, covenants and conditions
herein contained shall be binding upon and inure to the benefit of the
successors and assigns of the parties hereto. Buyer may not assign its rights
under this Agreement without first obtaining Seller's written approval, which
approval may be given or withheld in Seller's sole and absolute discretion. No
assignment shall release or otherwise relieve Buyer from any obligations
hereunder.
19. ENTIRE AGREEMENT. This Agreement contains all of the
covenants, conditions and agreements between the parties and shall supersede all
prior correspondence, agreements and understandings, both verbal and written.
The parties intend that this Agreement constitute the complete and exclusive
statement of its terms and that no extrinsic evidence may be introduced in any
proceeding involving this Agreement.
20. ATTORNEYS' FEES. In the event of any litigation regarding the
rights and obligations under this Agreement or in the Escrow Agreement, the
prevailing party shall be entitled to reasonable attorneys' fees and court
costs. Each party shall bear its own attorneys' fees in connection with the
preparation of this Agreement and the consummation of the transactions
contemplated hereunder.
21. NOTICES. Any notice, demand, request, consent, approval,
disapproval or certificate ("NOTICE") required or desired to be given under this
Agreement shall be in writing and given by certified mail, return receipt
requested, by personal delivery or by Federal Express or a similar nationwide
over-night delivery service providing a receipt for delivery. Notices may not be
given by facsimile. The date of giving any Notice shall be deemed to be the date
upon which delivery is actually made by one of the methods described in this
Section 12.7 (or attempted if said delivery is refused or rejected). If a Notice
is received on a Saturday, Sunday or legal holiday, it shall be deemed received
on the next business day. All notices, demands, requests, consents, approvals,
disapprovals, or certificates shall be addressed as follows:
If to Buyer: Network Appliance, Inc.
495 East Java Drive
Sunnyvale, California 94089
Attn: Mr. Thomas Bryant
with a copy to: Cox, Castle & Nicholson LLP
555 Montgomery Street
Suite 1500
San Francisco, California 94111
Attn: Doug Van Gessel, Esq.
16
<PAGE>
If to Seller: Cisco Systems, Inc.
170 West Tasman Drive
San Jose, California 95134-1706
Attn: Director of Americas Real Estate
with a copy to: Piper Rudnick LLP
1200 Nineteenth Street, N.W.
Washington, D.C. 20036
Attn: Jeffrey R. Keitelman, Esq.
Either party may change its address by giving reasonable advance written Notice
of its new address in accordance with the methods described in this Section 21.
22. EXHIBITS AND DEFINED TERMS. All exhibits attached hereto are
incorporated herein by reference thereto. All of the terms and definitions set
forth in the Defined Terms section are incorporated in this Agreement by
reference thereto.
23. TIME. Time is of the essence of every provision herein
contained. When the last day for the performance of any act permitted or
required hereunder falls on any day which is not a business day in the City of
Raleigh, North Carolina, such act may be performed on the next business day in
said city. When an act must be performed or a notice given by the end of a
specified day, such act must be performed or such notice given by 5:00 p.m. in
the City of Raleigh, North Carolina.
24. CONFIDENTIALITY. Buyer and its representatives shall hold in
strictest confidence all data and information obtained with respect to Seller or
its business, 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 to the employees, consultants, accountants and attorneys of Buyer
provided that such persons agree in writing to treat such data and information
confidentially. In the event this Agreement is terminated or Buyer fails to
perform hereunder, Buyer shall promptly return to Seller any statements,
documents, schedules, exhibits or 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, such 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. In the event of a breach or threatened breach by Buyer or
its agents or representatives of this Section 24, Seller shall be entitled to an
injunction restraining Buyer or its agents or representatives from disclosing,
in whole or in part, such confidential information. Nothing herein shall be
construed as prohibiting Seller from pursuing any other available remedy at law
or in equity for such breach or threatened breach. The provisions of this
Section 24 shall survive Closing or any early termination of this Agreement.
25. APPLICABLE LAW. This Agreement shall be governed by the laws
of the State of North Carolina.
17
<PAGE>
26. NO ORAL MODIFICATION OR WAIVER. This Agreement may not be
changed or amended orally, but only by an agreement in writing. No waiver shall
be effective hereunder unless given in writing, and waiver shall not be inferred
from any conduct of either party.
27. NO RECORDING. Buyer agrees that it shall not record or file
this Agreement or any summary of the provisions thereof. Any such recording or
filing shall automatically render this Agreement null and void.
28. COUNTERPARTS; ELECTRONIC COPY. This Agreement may be executed
in any number of counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument. This
Agreement is legally effective, valid, and enforceable despite the fact that it
or signatures on it may be in electronic form or that it may have been created,
transmitted, stored, or otherwise handled or formed, in whole or in part, by
electronic means.
29. CAPTIONS. The captions of this Agreement are for convenience
and reference only and in no way define, describe, extend or limit the scope,
meaning or intent of this Agreement.
30. SEVERABILITY. The invalidation or unenforceability in any
particular circumstance of any of the provisions of this Agreement shall in no
way affect any of the other provisions hereof which shall remain in full force
and effect.
31. NO JOINT VENTURE. This Agreement shall not be construed as in
any way establishing a partnership, joint venture, express or implied agency, or
employer-employee relationship between Buyer and Seller.
32. NO THIRD PARTY BENEFICIARIES. This Agreement is for the sole
benefit of the parties hereto, their respective successors and permitted
assigns, and no other person or entity shall be entitled to rely upon or receive
any benefit from this Agreement or any term hereof.
33. NO PERSONAL LIABILITY. No general or limited partner of
Seller, no officer, director, or stockholder or member of any corporation or
limited liability company which is a partner at any tier in Seller, no disclosed
or undisclosed principal of Seller, and no person or entity in any way
affiliated with Seller shall have any personal liability with respect to this
Agreement, any instrument delivered by Seller at Closing, or the transaction
contemplated hereby, nor shall the property of any such person or entity be
subject to attachment, levy, execution or other judicial process. No general or
limited partner of Buyer, no officer, director, or stockholder or member of any
corporation or limited liability company which is a partner at any tier in
Buyer, no disclosed or undisclosed principal of Buyer, and no person or entity
in any way affiliated with Buyer shall have any personal liability with respect
to this Agreement, any instrument delivered by Buyer at Closing, or the
transaction contemplated hereby, nor shall the property of any such person or
entity be subject to attachment, levy, execution or other judicial process.
34. EXECUTION. The submission of this Agreement for examination
does not constitute an offer by or to either party. This Agreement shall be
effective and binding only after
18
<PAGE>
due execution and delivery by the parties hereto; provided, however, that this
Agreement shall not be binding in any way upon Seller unless and until:
(a) Seller shall execute and deliver the same to Buyer; and
(b) Research Triangle Foundation of North Carolina has given its
written approval thereof.
If Seller notifies Buyer in writing at or prior to Closing that this Agreement
has not been approved by Research Triangle Foundation, then this Agreement shall
be deemed terminated.
[SIGNATURES ON FOLLOWING PAGE]
19
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
BUYER SELLER
NETWORK APPLIANCE, INC., CISCO SYSTEMS, INC.,
A DELAWARE CORPORATION A CALIFORNIA CORPORATION
By: /s/ STEVEN J. GOMO By:__________________________________
----------------------------------
Its: Senior Vice President of Finance Its:_________________________________
and Chief Financial Officer
--------------------------------- Date:________________________________
Date: July 27, 2004
-------------------------------- ESCROW AGENT
CHICAGO TITLE
INSURANCE COMPANY
By:__________________________________
Its:_________________________________
Date:________________________________
20
<PAGE>
Staubach, CCC and TP join herein to agree to the provisions of Section 17 above.
THE STAUBACH COMPANY COMMERCIAL CAROLINA CORPORATION
By:__________________________________ By:__________________________________
Its:_________________________________ Its:_________________________________
Date:________________________________ Date:________________________________
TRI PROPERTIES
By:__________________________________
Its:_________________________________
Date:________________________________
21
<PAGE>
EXHIBIT A
LAND DESCRIPTION
That certain parcel of land situate in Research Triangle Park, Cedar Fork
Township, Wake County, North Carolina, described more particularly as follows:
BEING all of Site 12 containing 37.8259 acres (including Surface Cover
Maintenance Easement containing 0.7774 acres) as shown on that map entitled
'Exempt Subdivision Map of Site 12' prepared by Barbara H. Mulkey Engineering,
Inc., on May 30, 2000 as recorded in Book of Maps 2000, Page 1300, Wake County,
North Carolina Registry.
TOGETHER WITH a permanent, non-exclusive open space easement over all of that
property identified as 'Natural Area Preserve' containing 26.0741 acres as shown
on the aforesaid map, said easement being more particularly described in
instrument recorded in Book 8706, Page 1763, aforesaid records.
22
<PAGE>
EXHIBIT B
FORM OF DEED
Excise Tax - $47,938.00 Recording Time, Book and Page
--------------------------------------------------------------------------------
Tax Lot No._________________________ Parcel Identifier No.______________
Verified by_________________________ County on _____________________, 20________
by______________________________________________________________________________
Mail after recording to: Edward P. Tewkesbury
1604 Battleground Ave., Suite B, Greensboro, NC 27408
This instrument was prepared by: Edward P. Tewkesbury
Brief description for the index:________________________________________________
NORTH CAROLINA SPECIAL WARRANTY DEED
THIS DEED is made on________________, 2004, by and between
GRANTOR GRANTEE
Cisco Systems, Inc. Network Appliance, Inc.
170 West Tasman Drive 495 East Java Drive
San Jose, California 95134-1706 Sunnyvale, California 94089
The designations Grantor and Grantee include the parties, their heirs,
successors, and assigns, and include the singular, plural, masculine, feminine
or neuter as required by context.
WITNESSETH, that Grantor, for valuable consideration paid by Grantee,
the receipt of which is hereby acknowledged, has and by these presents does
grant, bargain, sell and convey to Grantee in fee simple, the parcel of land
situated in Cedar Fork Township, Wake County, North Carolina, and more
particularly described on Exhibit A attached and incorporated into this Deed
(the "Property").
TO HAVE AND TO HOLD the Property, and all privileges and appurtenances
thereto belonging, to Grantee in fee simple.
23
<PAGE>
And Grantor covenants with Grantee that Grantor has done nothing to
impair such title as Grantor received and that Grantor will warrant and defend
the title against the lawful claims of all persons claiming by, under or through
Grantor, except for matters of record, to which title to the Property is
subject.
IN WITNESS WHEREOF, Grantor has caused this instrument to be signed in
its corporate name by its duly authorized officer by authority of its board of
directors, the date first written above.
CISCO SYSTEMS, INC., a California corporation
By:_________________________________
Name:_______________________________
Title:______________________________
County of ________________
State of _________________
I, a Notary Public of ______________ County, _______________, certify
that ____________________ personally came before me this day and acknowledged
that (s)he is the ____________________ of Cisco Systems, Inc., a California
corporation, and that (s)he, as _________, being authorized to do so, executed
the foregoing on behalf of the corporation. Witness my hand and official seal or
stamp on_________________, 2004.
My Commission Expires:_______________ ____________________________Notary Public
[Official seal or stamp]
24
<PAGE>
EXHIBIT C
FORM OF GENERAL INSTRUMENT
GENERAL INSTRUMENT OF TRANSFER
7301-13, 7301-14 and 7301-15 Kit Creek Road
Research Triangle Park, North Carolina 27709
This General Instrument of Transfer ("INSTRUMENT") is made as of the
____ day of __________, 2004, by and between CISCO SYSTEMS, INC., a California
corporation with a principal place of business at 170 West Tasman Drive, San
Jose, California 95134-1706 ("Assignor"), and NETWORK APPLIANCE, INC., a
Delaware corporation having a place of business at 495 East Java Drive,
Sunnyvale, California 94089 ("Assignee").
In connection with the conveyance of certain property owned by Assignor known
and numbered as Research Triangle Park Site 12 (Buildings 13, 14 and 15),
7301-13,7301-14, and 7301-15 Kit Creek Road, Research Triangle Park, North
Carolina 27709, more particularly described on Schedule I attached hereto and
made a part hereof (the "Premises"), and in consideration of Ten Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Assignor hereby sells, assigns, transfers,
grants and conveys unto Assignee, all of Assignor's right, title and interest in
and to the following to the extent the same apply to the Premises and are
transferable or assignable (collectively, the "Interests"):
1. All appurtenances and privileges belonging to the Premises and the
rights, benefits and privileges of owning and operating the same;
2. All rights, entitlements and/or approvals to develop the Premises which
have been or may hereafter be granted by governmental bodies having
jurisdiction or authority over the Premises, and any certificates
evidencing compliance therewith;
3. All variances, conditional use permits, special permits, exceptions,
rezonings, general plan amendments, parcel maps, development
agreements, permits, Licenses, applications, any other governmental
approvals and consents (if any) relating to the Premises;
4. All guarantees, warranties, and indemnities giving rise to any rights
or benefits of Assignor in respect of the Premises and all claims
and/or causes of action against contractors with respect to the
Premises or any part thereof or any buildings, structures or
improvements thereon, provided, however, that Assignor reserves, in
common with Assignee, such rights in respect of the matters assigned in
this paragraph 4 as may be necessary or convenient for Assignor's
discharge of liabilities, or defense of claims, relating to the
Premises which are not assigned to or assumed by Buyer in connection
with the acquisition of the Premises;
5. All bonds, construction contracts, architect's contracts, licenses,
applications, permits, plans, drawings, specifications, "as-built"
plans and/or surveys, site plans, maps, and any other plans relating to
the construction of the improvements on the Premises;
25
<PAGE>
6. All engineering, soils, ground water and environmental reports and
other technical descriptions and environmental reports concerning the
Premises; and
7. All tangible personal property owned by Assignor and located on or
attached and appurtenant to, or forming part of the Premises ("PERSONAL
PROPERTY").
Assignee hereby accepts the foregoing transfer from Assignor of the
above-assigned Interests.
This Instrument shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, successors and assigns and shall be
governed by the laws of the State of North Carolina.
This Instrument may be executed in multiple counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties have executed this Assignment under
seal as of the date first written above.
ASSIGNEE ASSIGNOR
NETWORK APPLIANCE, INC., CISCO SYSTEMS, INC.,
A DELAWARE CORPORATION A CALIFORNIA CORPORATION
By:__________________________________ By:__________________________________
Its:_________________________________ Its:_________________________________
Date:______________________ Date:______________________
26
<PAGE>
Schedule I
The Premises
That certain parcel of land situate in Research Triangle Park, Cedar Fork
Township, Wake County, North Carolina, described more particularly as follows:
BEING all of Site 12 containing 37.8259 acres (including Surface Cover
Maintenance Easement containing 0.7774 acres) as shown on that map entitled
'Exempt Subdivision Map of Site 12' prepared by Barbara H. Mulkey Engineering,
Inc., on May 30, 2000 as recorded in Book of Maps 2000, Page 1300, Wake County,
North Carolina Registry.
TOGETHER WITH a permanent, non-exclusive open space easement over all of that
property identified as 'Natural Area Preserve' containing 26.0741 acres as shown
on the aforesaid map, said easement being more particularly described in
instrument recorded in Book 8706, Page 1763, aforesaid records.
27
<PAGE>
EXHIBIT D
[RESERVED]
28
<PAGE>
EXHIBIT E
FORM OF NON-FOREIGN CERTIFICATE
NON-FOREIGN CERTIFICATE
7301-13, 7301-14 and 7301-15 Kit Creek Road
Research Triangle Park, North Carolina 27709
Section 1445 of the Internal Revenue Code provides that a purchaser of
a United States Property interest must withhold tax if the seller is a foreign
person. To inform Network Appliance, Inc., a Delaware corporation ("Buyer") that
withholding of tax is not required upon the disposition of a United States
Property interest by Cisco Systems, Inc. ("Seller"), the undersigned hereby
certifies the following on behalf of Seller:
1. Seller is not a foreign person (as that term is defined in the Internal
Revenue Code and Income Tax Regulations);
2. Seller's United States employer identification number is 77-0059951;
and
3. Seller's office address is 170 West Tasman Drive
San Jose, California 95134-1706
Seller understands that this certification may be disclosed to the Internal
Revenue Service by Buyer and that any false statement contained herein could be
punished by fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined this certification and
to the best of my knowledge and belief it is true, correct, and complete, and I
further declare that I have authority to sign this document on behalf of Seller.
CISCO SYSTEMS, INC., A CALIFORNIA CORPORATION
By:__________________________________
Its:_________________________________
Date:______________________
29
<PAGE>
EXHIBIT F
ENVIRONMENTAL REPORTS SCHEDULE
TITLE AUTHOR DATE
-------------------------------------------------------------------------------------------------
Phase 1 Environmental Site Assessment Engineering Consulting March 24, 2000
Services, LTD.
-------------------------------------------------------------------------------------------------
Abandonded Underground Natural Gas Pipeline Arcadis Geraghty & Miller July 12, 2000
Investigation, Research Triangle Park, of North Carolina, Inc.
North Carolina
-------------------------------------------------------------------------------------------------
Phase 1 Environmental Site Assessment Engineering Consulting July 20, 2000
Services, LTD.
-------------------------------------------------------------------------------------------------
Report of Subsurface Exploration and Engineering Consulting July 25, 2000
Geotechnical Engineering Analysis Services, LTD.
-------------------------------------------------------------------------------------------------
RTP Site 12 Site Plan Approval Letter Elizabeth H. August 17, 2000
Rooks-Research Triangle
Foundation of North
Carolina
-------------------------------------------------------------------------------------------------
Architectural Elevation Approval for Elizabeth H. September 27, 2000
Buildings 13-15 Rooks-Research Triangle
Foundation of North
Carolina
-------------------------------------------------------------------------------------------------
Report of Additional Subsurface Engineering Consulting October 4, 2000
Explorations for the Parking Lots on Cisco Services, LTD.
Systems Site 12 Located in Research
Triangle Park, North Carolina ECS, Ltd.
Project Number 8590
-------------------------------------------------------------------------------------------------
Right of Way Encroachment Agreement Primary State of North Carolina November 1, 2000
and Secondary Highways Wake County
-------------------------------------------------------------------------------------------------
Three Party Right of Way Encroachment State of North Carolina November 1, 2000
Agreement on Primary and Seconday System Wake County
-------------------------------------------------------------------------------------------------
30
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TITLE AUTHOR DATE
-------------------------------------------------------------------------------------------------
Application for Driveway Entrance onto Brandon H. Jones-State of December 8, 2000
Louis Stevens Road Permit Number North Carolina Department
D51-40-00-259 of Transportation
-------------------------------------------------------------------------------------------------
Application for Driveway Entrance onto SR Brandon H. Jones-State of December 8, 2000
1639 Permit Number D51-40-00-252 North Carolina Department
of Transportation
-------------------------------------------------------------------------------------------------
Encroachment Contract 12" x 8" tapping State of North Carolina December 29, 2000
sleeve, 8" gate valve and 20" steel carrier Department of
pipe Louis Stevens Drive E51-40-00-0886 Transportation
-------------------------------------------------------------------------------------------------
Encroachment Contract 12" x 8" tapping State of North Carolina December 29, 2000
sleeve and 8" gate SR 1639 E51-40-00-0887 Department of
Transportation
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Certificate of Substantial Completion Site O'Brien/Atkins Associates February 21, 2001
12
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Encroachment Contract Tree Clearing and State of North Carolina August 6, 2001
Grading SR 1639 E51-4--01-0739 Department of
Transportation
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Cisco Systems, Inc. Building 13 Warranties, Bovis Lend Lease, Inc. November 6, 2001
General Information, Operations &
Maintenance Manuals, Test Reports
-------------------------------------------------------------------------------------------------
Certificate of Substantial Completion O'Brien/Atkins Associates November 16, 2001
Building 14
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Cisco Systems, Inc. Building 14 Warranties, Bovis Lend Lease, Inc. December 14, 2001
General Information, Operations &
Maintenance Manuals, Test Reports
-------------------------------------------------------------------------------------------------
Cisco Systems, Inc. Building 15 Warranties, Bovis Lend Lease, Inc. February 13, 2002
General Information, Operations &
Maintenance Manuals, Test Reports
-------------------------------------------------------------------------------------------------
Cisco Systems, Inc. Site 12 Operations & Bovis Lend Lease, Inc. February 15, 2002
Maintenance Manuals, General Information &
Warranties
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31
<PAGE>
TITLE AUTHOR DATE
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Total Acceptance of Maintenance-Public Jimmy Little-Development May 9, 2002
Water and Sanitary Sewer lines Inspector, Town of Cary
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Air Permit No. 9439M00 Laura S. Butler-North June, 04 2004
Carolina Department of
Environmental and Natural
Resources Division of Air
Quality
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32