NetApp Inc. Contracts
Sample Business Contracts
California-Sunnyvale-1260 Crossman Avenue Purchase Agreement - Trinet Essential Facilities XII Inc. and Network Appliance Inc.
PURCHASE AGREEMENT
between
TRINET ESSENTIAL FACILITIES XII, INC., Seller
and
NETWORK APPLIANCE, INC., Buyer
September 9, 1999
1260 Crossman Avenue
Sunnyvale, California
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TABLE OF CONTENTS
Page
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ARTICLE 1 Purchase and Sale...................................................................1
1.1 The Property........................................................................1
1.2 Property Approval Period............................................................1
1.3 Exchange by Seller..................................................................3
1.4 Exchange by Buyer...................................................................3
ARTICLE 2 Purchase Price......................................................................3
2.1 Amount and Payment..................................................................3
2.2 Deposit.............................................................................4
2.3 Liquidated Damages..................................................................4
ARTICLE 3 Completion of Sale..................................................................4
3.1 Place and Date......................................................................4
ARTICLE 4 Title and Condition.................................................................5
4.1 Title to the Property...............................................................5
4.2 Acceptance of Title.................................................................5
4.3 Condition of the Property...........................................................5
ARTICLE 5 Representations and Warranties......................................................5
5.1 Seller..............................................................................5
5.2 Buyer...............................................................................6
ARTICLE 6 Covenants...........................................................................7
6.1 Seller..............................................................................7
6.2 Buyer...............................................................................8
6.3 Casualty Damage.....................................................................9
6.4 Eminent Domain......................................................................9
ARTICLE 7 Conditions Precedent...............................................................10
7.1 Seller.............................................................................10
7.2 Buyer..............................................................................10
ARTICLE 8 Closing............................................................................11
8.1 Procedure..........................................................................11
8.2 Possession.........................................................................12
8.3 Closing Costs......................................................................12
8.4 Prorations.........................................................................12
ARTICLE 9 General............................................................................12
9.1 Notices............................................................................12
9.2 Attorneys' Fees....................................................................13
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9.3 Governing Law......................................................................14
9.4 Construction.......................................................................14
9.5 Terms Generally....................................................................14
9.6 Further Assurances.................................................................14
9.7 Partial Invalidity.................................................................14
9.8 Waivers............................................................................14
9.9 Confidentiality....................................................................15
9.10 No Third-Party Beneficiaries.......................................................15
9.11 Miscellaneous......................................................................15
Exhibit A Legal Description
Exhibit B Items Delivered by Seller
Exhibit C Grant Deed
Exhibit D Seller's Closing Certificate
Exhibit E Buyer's Closing Certificate
Exhibit F Assignment of Leases
Exhibit G Certificate of Nonforeign Status
Exhibit H General Release
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PURCHASE AGREEMENT
THIS AGREEMENT, made as of September 9, 1999, by and between TRINET
ESSENTIAL FACILITIES XII, INC., a Maryland corporation ("Seller"), and NETWORK
APPLIANCE, INC., a California corporation ("Buyer"),
W I T N E S S E T H:
In consideration of the covenants in this Agreement, Seller and Buyer
agree as follows:
ARTICLE 1
Purchase and Sale
1.1 The Property. Seller agrees to sell to Buyer, and Buyer agrees to
purchase from Seller, in accordance with this Agreement, the real property in
the City of Sunnyvale, County of Santa Clara, State of California, commonly
known as 1260 Crossman Avenue, Sunnyvale, California, described in Exhibit A
attached hereto, together with the improvements on such real property, the
easements and rights appurtenant to such real property, and Seller's interest in
the Lease, dated May 5, 1978, between Lockheed Martin Corporation, a Maryland
corporation ("Tenant"), as successor to Ford Aerospace and Communications
Corporation, as tenant, and The Prudential Insurance Company of America, as
landlord, together with all amendments and ancillary agreements thereto (the
"Lease"), pertaining to such real property (all such real property,
improvements, easements, rights and Seller's interest in the Lease are
collectively the "Property").
1.2 Property Approval Period.
(a) During the period from the date of this Agreement to the date thirty
(30) days after the date of this Agreement (the "Property Approval Period"),
Buyer shall, in good faith and with diligence, at Buyer's expense, review and
investigate the physical and environmental condition of the Property, the
character, quality and general utility of the Property, the zoning, land use,
environmental and building requirements and restrictions applicable to the
Property, the state of title to the Property, and the Lease. Buyer shall
determine whether or not the Property is acceptable to Buyer within the Property
Approval Period. If, during the Property Approval Period, Buyer determines, in
Buyer's sole discretion, that the Property is not acceptable, Buyer shall have
the right, by giving notice to Seller on or before the last day of the Property
Approval Period, to terminate this Agreement. If Buyer exercises the right to
terminate this Agreement in accordance with this section 1.2, this Agreement
shall terminate as of the date such termination notice is given by Buyer, in
which event the Deposit (as hereinafter defined) and all interest thereon shall
be returned to Buyer. If Buyer does not exercise the right to terminate this
Agreement in accordance with this section 1.2, this Agreement shall continue in
full force and effect, and Buyer shall have no further right to terminate this
Agreement pursuant to this section 1.2.
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(b) Prior to the date of this Agreement Seller has delivered to Buyer,
and Buyer acknowledges receipt of, all of the items listed on Exhibit B attached
hereto which Seller is required to deliver. During the Property Approval Period,
subject to the rights of Tenant set forth in the Lease, Seller shall provide
Buyer and Buyer's representatives with access to the Property pursuant to, and
subject to the terms and conditions of, the Access Agreement dated September 3,
1999, among Buyer, Seller and Tenant. Buyer acknowledges that the materials
relating to the Property to be furnished by Seller to Buyer contain confidential
and proprietary information. Buyer agrees to keep all such information
confidential and not to disclose any such information to any third party except
to the extent necessary to carry out the responsibilities of Buyer pursuant to
this section 1.2 or to obtain financing for the Property. If Buyer exercises the
right to terminate this Agreement in accordance with this section 1.2, Buyer
shall, within five (5) days after the termination date, return to Seller all
materials relating to the Property theretofore furnished by Seller and all
copies thereof.
(c) Buyer shall indemnify and defend Seller against and hold Seller
harmless from all claims, demands, liabilities, losses, damages, costs and
expenses, including reasonable attorneys' fees and disbursements, arising from
any entry on the Property by Buyer or any of Buyer's representatives. The
foregoing indemnification covenant shall survive any termination of this
Agreement. Buyer shall, promptly after completion thereof, provide Seller with
copies of all studies, tests, reports and other documents or materials relating
to the Property that are prepared, conducted or made by, for or on behalf of
Buyer.
(d) Buyer acknowledges receipt of a Preliminary Title Report respecting
the Property dated August 26, 1999 (the "Preliminary Report") issued by First
American Title Company (the "Title Company"), together with copies of all
exception documents referred to therein. Buyer shall have the right to object in
writing, delivered to Seller no later than the date fifteen (15) days after the
date of this Agreement, to any exception listed in the Preliminary Report (a
"Challenged Exception"). Any such exception which Buyer does not so object to
shall be a Permitted Exception deemed approved by Buyer. Seller shall have the
right, but no obligation, by notice to Buyer delivered within ten (10) days
after Buyer's objection notice, to agree to cause any Challenged Exception to be
removed from title or insured over by the Title Company. Except as Buyer and
Seller may otherwise agreed in writing, by failing to terminate this Agreement
in accordance with section 1.2(a), Buyer shall be deemed to have approved any
Challenged Exception as to which Seller does not so agree to cause the removal
or insurance over, and such Challenged Exceptions shall be Permitted Exceptions.
Buyer shall accept title to the Property subject to the following (collectively,
the "Permitted Exceptions"): (a) the items listed as exceptions in the
Preliminary Report which Buyer approves or is deemed hereunder to have approved,
(b) any matter which would be disclosed by a current ALTA/ACSM survey or a
physical inspection of the Property and (c) any other matters created, permitted
or approved (or deemed approved) by Buyer. If on or prior to the Closing Date,
Buyer discovers the existence of any exception to title which is not a Permitted
Exception and which is not disclosed by the Preliminary Report (a "New
Exception"), Buyer may, by giving notice to Seller within three (3) business
days of such discovery, object to any such New Exception. Buyer shall be deemed
to have approved any such New Exception unless Buyer objects to any title
exception in accordance with this section 1.2(d). If Buyer makes any such
objection, Seller may, by giving notice to Buyer within three (3) business days
after receipt of such objection, elect either to remove such New Exception or
not to remove such New
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Exception. Seller shall be deemed to have elected not to remove any such New
Exception unless Seller elects to remove any such New Exception in accordance
with this section 1.2. If Seller elects not to remove any New Exception to which
Buyer shall have timely objected, Buyer may terminate this Agreement by notice
to Seller delivered within two (2) business days after expiration of such three
(3) business day period. Any such New Exception to which Buyer does not object
in accordance with this section 1.2 shall be deemed approved and deemed to be a
Permitted Exception. Seller agrees, on or before the Closing Date, to do all
things required by the Title Company to ensure the removal, or insurance over,
of any exception to title relating to any mortgage, deed of trust or other
voluntary monetary lien incurred by Seller.
1.3 Exchange by Seller. If requested by Seller, Buyer shall cooperate
with Seller to effect an exchange of the Property that qualifies for
nonrecognition treatment in accordance with section 1031 of the Internal Revenue
Code of 1986, as amended. Seller shall be responsible for negotiating the terms
of the acquisition of exchange property and for preparing and furnishing to
Buyer the necessary agreements, escrow instructions and other documents related
to the acquisition of exchange property. Buyer shall execute, acknowledge and
deliver such agreements, escrow instructions and other documents and take such
action as may be required in accordance with such agreements, escrow
instructions and other documents to complete the acquisition and conveyance of
the exchange property, as directed by Seller. Buyer shall not be required to
assume any additional obligation or to incur any additional liability in
connection with any acquisition of an exchange property that will survive
conveyance of the exchange property to Seller. The exchange shall not delay the
Closing Date.
1.4 Exchange by Buyer. If requested by Buyer, Seller shall cooperate
with Buyer to effect a purchase of the Property through an exchange that
qualifies for nonrecognition treatment in accordance with section 1031 of the
Internal Revenue Code of 1986, as amended. Buyer shall be responsible for
negotiating the terms of the disposition of exchange property and for preparing
and furnishing to Seller the necessary agreements, escrow instructions and other
documents related to the exchange. Seller shall execute, acknowledge and deliver
such agreements, escrow instructions and other documents and take such action as
may be required in accordance with such agreements, escrow instructions and
other documents to complete the acquisition and conveyance of the exchange
property, as directed by Buyer. Seller shall not be required to acquire title to
any other property, nor to assume any additional obligation or to incur any
additional liability in connection with any exchange that will survive
conveyance of the Property to Seller. The exchange shall not delay the Closing
Date.
ARTICLE 2
Purchase Price
2.1 Amount and Payment. The total purchase price for the Property shall
be thirteen million four hundred thousand dollars ($13,400,000). At the Closing
(as hereinafter defined) on the Closing Date (as hereinafter defined), Buyer
shall pay the total purchase price for the Property to Seller in cash in
immediately available funds.
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2.2 Deposit. Not later than the date five (5) days after the date of
this Agreement, Buyer shall deposit the sum of six hundred seventy thousand
dollars ($670,000) (the "Deposit") in cash in immediately available funds in
escrow with the Title Company. The Deposit shall be held by the Title Company in
an interest-bearing account designated in writing by Buyer and approved in
writing by Seller. If Seller and Buyer complete the purchase and sale of the
Property in accordance with this Agreement, the Deposit and all interest thereon
shall be applied to payment of the total purchase price for the Property in
accordance with section 2.1 hereof. If the purchase and sale of the Property is
not so completed and this Agreement terminates for any reason other than as set
forth in section 2.3, then the Deposit and all interest thereon shall be
returned to Buyer upon such termination of this Agreement.
2.3 Liquidated Damages. SELLER AND BUYER AGREE THAT, IF THE PURCHASE AND
SALE OF THE PROPERTY IS NOT COMPLETED IN ACCORDANCE WITH THIS AGREEMENT AND THIS
AGREEMENT TERMINATES FOR ANY REASON OTHER THAN (A) TERMINATION BY BUYER PURSUANT
TO SECTION 1.2(a) OR (B) THE FAILURE OF THE CONDITIONS DESCRIBED IN SECTION
7.2(a), (b) OR (c), THEN THE DEPOSIT AND ALL INTEREST THEREON SHALL BE PAID TO
SELLER UPON TERMINATION OF THIS AGREEMENT AND RETAINED BY SELLER AS LIQUIDATED
DAMAGES AND AS SELLER'S SOLE REMEDY AT LAW OR IN EQUITY. SELLER AND BUYER AGREE
THAT, UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT, ACTUAL
DAMAGES MAY BE DIFFICULT TO ASCERTAIN AND THE DEPOSIT AND ALL INTEREST THEREON
IS A REASONABLE ESTIMATE OF THE DAMAGES THAT WILL BE INCURRED BY SELLER IF BUYER
FAILS TO PURCHASE THE PROPERTY IN ACCORDANCE WITH THIS AGREEMENT.
SELLER'S INITIALS:[ILLEGIBLE INITIALS] BUYER'S INITIALS: [ILLEGIBLE INITIALS]
--------------------- -------------------
ARTICLE 3
Completion of Sale
3.1 Place and Date. The purchase and sale of the Property shall be
completed in accordance with Article 8 hereof (the "Closing"). The Closing shall
occur through escrow with the Title Company on March 1, 2000 (the "Closing
Date"), or at such other place or on such other date as Seller and Buyer agree
in writing. Prior to the Closing Date, Seller and Buyer each shall give
appropriate written escrow instructions, consistent with this Agreement, to the
Title Company for the Closing in accordance with this Agreement.
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ARTICLE 4
Title and Condition
4.1 Title to the Property. Seller shall convey to Buyer good and
marketable fee title to the Property, by a duly executed and acknowledged Grant
Deed (the "Grant Deed") in the form of Exhibit C attached hereto, free and clear
of liens, encumbrances, leases, easements, restrictions, rights, covenants and
conditions, except the Permitted Exceptions.
4.2 Acceptance of Title. Buyer's acceptance of the Grant Deed from
Seller for the Property at the Closing on the Closing Date and the issuance of a
title insurance policy to Buyer by the Title Company on the Closing Date shall
conclusively establish that Seller conveyed the Property to Buyer as required by
this Agreement and shall discharge in full Seller's obligations under section
4.1 hereof with respect to title to the Property.
4.3 Condition of the Property. Except for the express representations
and warranties of Seller set forth in section 5.1 hereof, Buyer is acquiring the
Property "as is," without any covenant, representation or warranty of any kind
or nature whatsoever, express or implied, and Buyer is relying solely on Buyer's
own investigation of the Property. In accordance with California Health and
Safety Code section 25359.7, Seller has delivered to Buyer a copy of the report
(the "Environmental Assessment") dated April 12, 1994, prepared by E2C, Inc.,
Job No. 6260100, containing certain environmental information about the
Property. Buyer acknowledges receipt of the Environmental Assessment and
confirms that Buyer has read the Environmental Assessment.
ARTICLE 5
Representations and Warranties
5.1 Seller. The representations and warranties of Seller in this section
5.1 and in Seller's Closing Certificate (as hereinafter defined) are a material
inducement for Buyer to enter into this Agreement. Buyer would not purchase the
Property from Seller without such representations and warranties of Seller. Such
representations and warranties shall survive the Closing for only one hundred
eighty (180) days after the Closing Date, at which time such representations and
warranties shall terminate. Seller represents and warrants to Buyer as of the
date of this Agreement as follows:
(a) Seller is a corporation duly incorporated and organized and validly
existing and in good standing under the laws of the State of Maryland. Seller is
duly qualified to do business and is in good standing in the State of
California. Seller has full corporate power and authority to enter into this
Agreement and to perform this Agreement. The execution, delivery and performance
of this Agreement by Seller have been duly and validly authorized by all
necessary action on the part of Seller and all required consents or approvals
have been duly obtained. This Agreement is a legal, valid and binding obligation
of Seller, enforceable against Seller in accordance with its terms, subject to
the effect of applicable bankruptcy, insolvency,
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reorganization, arrangement, moratorium or other similar laws affecting the
rights of creditors generally. There is no agreement to which Seller is a party
or, to Seller's actual knowledge, which is binding on Seller, which is in
conflict with this Agreement.
(b) The copy of the Lease delivered by Seller to Buyer is a complete and
accurate copy, and there are no amendments thereto other than amendments of
which Seller has provided Buyer with a complete and accurate copy. Except as
disclosed to Seller in writing, to the current actual knowledge of Seller,
Seller is not materially in default in the performance of any material covenant
to be performed by the landlord under the Lease and the Tenant under the Lease
has no material claims or offsets against Seller pursuant to the Lease.
(c) Seller is not a "foreign person" as defined in section 1445 of the
Internal Revenue Code of 1986, as amended, and the Income Tax Regulations
thereunder.
(d) Except for Cornish & Carey Commercial, Seller has not dealt with any
real estate broker or finder in connection with the sale of the Property to
Buyer or this Agreement.
(e) Seller has not (i) made a general assignment for the benefit of
creditors; (ii) filed any voluntary petition in bankruptcy or suffered the
filing of an involuntary petition by its creditors; (iii) suffered the
appointment of a receiver to take possession of all or substantially all of its
assets; (iv) suffered the attachment or other judicial seizure of all, or
substantially all, of its assets; (v) admitted in writing its inability to pay
its debts as they come due; or (vi) made an offer of settlement, extension or
composition to its creditors generally.
(f) Seller has not received any written notice from any governmental
authority with respect to, and Seller is not aware of, any eminent domain
proceedings for the condemnation of the Property that are threatened or
currently pending.
5.2 Buyer. The representations and warranties of Buyer in this section
5.2 and in Buyer's Closing Certificate (as hereinafter defined) are a material
inducement for Seller to enter into this Agreement. Seller would not sell the
Property to Buyer without such representations and warranties of Buyer. Such
representations and warranties shall survive the Closing for only one hundred
eight (180) days after the Closing Date, at which time such representations and
warranties shall terminate. Buyer represents and warrants to Seller as of the
date of this Agreement as follows:
(a) Buyer is a corporation duly incorporated and organized and validly
existing and in good standing under the laws of the State of California. Buyer
has full corporate power and authority to enter into this Agreement and to
perform this Agreement. The execution, delivery and performance of this
Agreement by Buyer have been duly and validly authorized by all necessary action
on the part of Buyer and all required consents or approvals have been duly
obtained. This Agreement is a legal, valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms, subject to the effect of
applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or
other similar laws affecting the rights of creditors generally. There is no
agreement to which Buyer is a party or, to Buyer's actual knowledge, which is
binding on Buyer, which is in conflict with this Agreement.
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(b) Except for Cornish & Carey Commercial, Buyer has not dealt with any
real estate broker or finder in connection with the purchase of the Property
from Seller or this Agreement.
(c) Buyer has not (i) made a general assignment for the benefit of
creditors; (ii) filed any voluntary petition in bankruptcy or suffered the
filing of an involuntary petition by its creditors; (iii) suffered the
appointment of a receiver to take possession of all or substantially all of its
assets; (iv) suffered the attachment or other judicial seizure of all, or
substantially all, of its assets; (v) admitted in writing its inability to pay
its debts as they come due; or (vi) made an offer of settlement, extension or
composition to its creditors generally.
ARTICLE 6
Covenants
6.1 Seller. Seller covenants and agrees with Buyer as follows:
(a) Seller shall use reasonable efforts, in good faith and with
diligence, to cause all of the representations and warranties made by Seller in
section 5.1 hereof to be true and correct on and as of the Closing Date. At the
Closing on the Closing Date, Seller shall execute and deliver to Buyer a
Seller's Closing Certificate ("Seller's Closing Certificate") in the form of
Exhibit D attached hereto, certifying to Buyer that all such representations and
warranties are true and correct on and as of the Closing Date, with only such
exceptions therein as are necessary to reflect facts or circumstances arising
between the date of this Agreement and the Closing Date which would make any
such representation or warranty untrue or incorrect on and as of the Closing
Date.
(b) Seller shall indemnify and defend Buyer against and hold Buyer
harmless from all claims, demands, liabilities, losses, damages, costs and
expenses, including reasonable attorneys' fees and disbursements, that may be
suffered or incurred by Buyer if any representation or warranty made by Seller
in section 5.1 hereof or in Seller's Closing Certificate was untrue or incorrect
in any respect when made or that may be caused by any breach by Seller of any
such representation or warranty.
(c) Between the date of this Agreement and the Closing Date or earlier
termination of this Agreement, Seller shall (i) not enter into any new lease of
the Property or any part thereof, and shall give Buyer notice of any amendment
of the Lease, (ii) not enter into any service agreements or other third party
agreements that will survive the Closing and be binding on Buyer, except for
ordinary service agreement on customary terms which shall be terminable on not
more than thirty (30) days' notice without penalty; and (iii) maintain or cause
to be maintained in effect property and liability insurance on the Property to
the extent required to be maintained by Seller in accordance with the Lease.
(d) Between the date of this Agreement and the Closing Date or earlier
termination of this Agreement, Seller shall, at Buyer's sole cost, provide
reasonable cooperation to Buyer in connection with Buyer's efforts to obtain
governmental, quasi-governmental and third-party
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approvals, as Buyer may deem appropriate to enable Buyer after the Closing to
develop the Property, construct improvements thereon and operate its business
from the Property ("Buyer's Development Efforts"); provided that, (i) Seller
shall not become liable to any governmental entity or other third party in any
respect by reason of Buyer's Development Efforts or Seller's cooperation
therewith and Buyer shall indemnify, defend and hold Seller harmless from and
against any such liability, (ii) if the Closing does not occur for any reason,
Buyer shall, on Seller's request, take all steps necessary to reverse the
effects of any of Buyer's Development Efforts, including withdrawing any
applications and canceling any permits or approvals, and (iii) Buyer shall,
promptly upon demand, reimburse Seller for any costs or expenses incurred by
Seller in connection with or relating to Buyer's Development Efforts or Seller's
cooperation therewith, including any attorneys' or consultants' fees.
Notwithstanding the foregoing, Buyer shall not take any action with respect to
the Property or in furtherance of Buyer's Development Efforts if, in Seller's
reasonable judgment, such action could reasonably be expected to have a
detrimental effect on the value or utility of the Property.
6.2 Buyer. Buyer covenants and agrees with Seller as follows:
(a) Buyer shall use reasonable efforts, in good faith and with
diligence, to cause all of the representations and warranties made by Buyer in
section 5.2 hereof to be true and correct on and as of the Closing Date. At the
Closing on the Closing Date, Buyer shall execute and deliver to Seller a Buyer's
Closing Certificate ("Buyer's Closing Certificate") in the form of Exhibit E
attached hereto, certifying to Seller that all such representations and
warranties are true and correct on and as of the Closing Date, with only such
exceptions therein as are necessary to reflect facts or circumstances arising
between the date of this Agreement and the Closing Date which would make any
such representation or warranty untrue or incorrect on and as of the Closing
Date.
(b) Buyer shall indemnify and defend Seller against and hold Seller
harmless from all claims, demands, liabilities, losses, damages, costs and
expenses, including reasonable attorneys' fees and disbursements, that may be
suffered or incurred by Seller if any representation or warranty made by Buyer
in section 5.2 hereof or in Buyer's Closing Certificate was untrue or incorrect
in any respect when made or that may be caused by any breach by Buyer of any
such representation or warranty.
(c) Buyer shall be responsible for the payment of any commission, fee or
other compensation payable to Cornish & Carey Commercial in connection with this
Agreement or the Property, and Buyer shall indemnify, defend and hold Seller
harmless from and against any claim or liability for any commission, fee or
other compensation payable in connection with this Agreement or the Property
unless such claim or liability arises from an express agreement made by Seller.
6.3 Casualty Damage. If, before the Closing Date, the improvements on
the Property 6.3 are damaged by any casualty whether or not insured and the cost
to restore such improvements, as reasonably determined by Seller and Buyer, is
more than one million dollars ($1,000,000), Buyer shall have the right, by
giving notice to Seller within thirty (30) days after Seller gives notice of the
occurrence of such casualty to Buyer, to terminate this Agreement, in which
event this Agreement shall terminate. If, before the Closing Date, the
improvements on
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the Property are damaged by any casualty and the cost to restore such
improvements, as reasonably determined by Seller and Buyer, is one million
dollars ($1,000,000) or less, or Buyer has the right to terminate this Agreement
pursuant to the preceding sentence but Buyer does not exercise such right, then
this Agreement shall remain in full force and effect and, on the Closing Date,
any insurance proceeds (or, if not theretofore received, the right to receive
such proceeds) payable on account of the damage shall be transferred to Buyer.
In no event shall Seller be obligated to provide any credit or price reduction
on account of any casualty. Seller shall give notice to Buyer reasonably
promptly after the occurrence of any damage to the improvements on the Property
by any casualty. If necessary, the Closing Date shall be postponed until Seller
has given any notice to Buyer required by this section 6.3 and the period of
thirty (30) days described in this section 6.3 has expired, and the restoration
cost has been determined by Seller and Buyer. In the event of any casualty
damage, Seller shall use commercially reasonable efforts to enforce Tenant's
obligations under the Lease respecting repair and restoration.
6.4 Eminent Domain. If, before the Closing Date, proceedings are
commenced for the taking by exercise of the power of eminent domain of all or a
material part of the Property which, as reasonably determined by Buyer, would
render the Property unsuitable for Buyer's intended use, Buyer shall have the
right, by giving notice to Seller within thirty (30) days after Seller gives
notice of the commencement of such proceedings to Buyer, to terminate this
Agreement, in which event this Agreement shall terminate. If, before the Closing
Date, proceedings are commenced for the taking by exercise of the power of
eminent domain of less than such a material part of the Property, or if Buyer
has the right to terminate this Agreement pursuant to the preceding sentence but
Buyer does not exercise such right, then this Agreement shall remain in full
force and effect and, on the Closing Date, the condemnation award (or, if not
theretofore received, the right to receive such award) payable on account of the
taking shall be transferred to Buyer. Seller shall give notice to Buyer
reasonably promptly after Seller's receiving notice of the commencement of any
proceedings for the taking by exercise of the power of eminent domain of all or
any part of the Property. If necessary, the Closing Date shall be postponed
until Seller has given any notice to Buyer required by this section 6.4 and the
period of thirty (30) days described in this section 6.4 has expired.
ARTICLE 7
Conditions Precedent
7.1 Seller. The obligations of Seller under this Agreement are subject
to satisfaction of all of the conditions set forth in this section 7.1. Seller
may waive any or all of such conditions in whole or in part but any such waiver
shall be effective only if made in writing. After the Closing, any such
condition that has not been satisfied shall be treated as having been waived in
writing. No such waiver shall constitute a waiver by Seller of any of its rights
or remedies if Buyer defaults in the performance of any covenant or agreement to
be performed by Buyer under this Agreement or if Buyer breaches any
representation or warranty made by Buyer in section 5.2 hereof or in Buyer's
Closing Certificate. If any condition set forth in this section 7.1 is not fully
satisfied or waived in writing by Seller, this Agreement shall terminate,
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but without releasing Buyer from liability if Buyer defaults in the performance
of any such covenant or agreement to be performed by Buyer or if Buyer breaches
any such representation or warranty made by Buyer before such termination.
(a) On the Closing Date, Buyer shall not be materially in default
in the performance of any material covenant to be performed by Buyer under this
Agreement.
(b) On the Closing Date, all representations and warranties made
by Buyer in section 5.2 hereof shall be true and correct in all material
respects as if made on and as of the Closing Date and Seller shall have received
Buyer's Closing Certificate, executed by Buyer, in which Buyer certifies to
Seller that all representations and warranties made by Buyer in section 5.2
hereof are true and correct on and as of the Closing Date, without material
adverse exceptions.
(c) On the Closing Date, Tenant and Buyer shall have executed and
delivered to Seller a General Release in the form of Exhibit H attached hereto
(the "General Release").
7.2 Buyer. The obligations of Buyer under this Agreement are subject to
satisfaction of all of the conditions set forth in this section 7.2. Buyer may
waive any or all of such conditions in whole or in part but any such waiver
shall be effective only if made in writing. After the Closing, any such
condition that has not been satisfied shall be treated as having been waived in
writing. No such waiver shall constitute a waiver by Buyer of any of its rights
or remedies if Seller defaults in the performance of any covenant or agreement
to be performed by Seller under this Agreement or if Seller breaches any
representation or warranty made by Seller in section 5.1 hereof or in Seller's
Closing Certificate. If any condition set forth in this section 7.2 is not fully
satisfied or waived in writing by Buyer, this Agreement shall terminate, but
without releasing Seller from liability if Seller defaults in the performance of
any such covenant or agreement to be performed by Seller or if Seller breaches
any such representation or warranty made by Seller before such termination.
(a) On the Closing Date, Seller shall not be materially in
default in the performance of any material covenant to be performed by Seller
under this Agreement.
(b) On the Closing Date, all representations and warranties made
by Seller in section 5.1 hereof shall be true and correct in all material
respects as if made on and as of the Closing Date and Buyer shall have received
Seller's Closing Certificate, executed by Seller, in which Seller certifies to
Buyer that all representations and warranties made by Seller in section 5.1
hereof are true and correct on and as of the Closing Date, without material
adverse exceptions.
(c) On the Closing Date, the Title Company shall be prepared to
issue to Buyer a California Land Title Association or ALTA Extended Coverage
Policy of title insurance, with liability equal to the total purchase price for
the Property, insuring Buyer that fee title to the Property is vested in Buyer
subject only to the Permitted Exceptions.
(d) Tenant shall have agreed in writing to assign its interest in
the Lease to Buyer, which assignment shall be consummated and effective
immediately upon the Closing.
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<PAGE> 14
ARTICLE 8
Closing
8.1 Procedure. Seller and Buyer shall cause the following to occur at
the Closing on the Closing Date:
(a) The Grant Deed for the Property, duly executed and acknowledged by
Seller, shall be recorded in the Official Records of the county in which the
Property is located.
(b) Seller shall date as of the Closing Date, execute and deliver to
Buyer (i) Seller's Closing Certificate, (ii) an Assignment of Leases (the
"Assignment of Leases") in the form of Exhibit F attached hereto, and (iii) a
Certificate of Nonforeign Status in the form of Exhibit G attached hereto.
(c) Buyer shall date as of the Closing Date, execute and deliver to
Seller (i) Buyer's Closing Certificate and (ii) the Assignment of Leases.
(d) Buyer shall pay to Seller the total purchase price for the Property
in cash in immediately available funds in accordance with section 2.1 hereof.
(e) The Title Company shall issue to Buyer the title insurance policy
described in section 7.2(c) hereof.
(f) Tenant and Buyer shall date as of the Closing Date, execute and
deliver to Seller the General Release.
8.2 Possession. Subject to the Lease, Seller shall transfer possession
of the Property to Buyer on the Closing Date. Seller shall, on the Closing Date,
deliver to Buyer the Leases and any plans and specifications, permits,
certificates, licenses and approvals relating to the Property in the possession
of Seller, which shall become the property of Buyer on the Closing Date.
8.3 Closing Costs. Seller shall pay the County documentary transfer tax
in respect of the Grant Deed, the premium for a CLTA title policy described in
section 7.2(c) hereof, and the escrow fee charged by the Title Company. Buyer
shall pay the premium for the title insurance policy obtained by Buyer to the
extent in excess of a standard premium for a CLTA policy, and any charges for
endorsements, and the recording fee for the Grant Deed. All other closing costs
shall be paid according to the custom in Santa Clara County.
8.4 Prorations. At the Closing on the Closing Date, the current rent
under the Leases, the current installment of real property taxes and assessments
levied against the Property, current utilities, and other current operating and
maintenance expenses of the Property (net of any payments paid or payable by
Tenant for taxes, assessments, utilities and expenses) shall be prorated between
Seller and Buyer as of the Closing Date on the basis of a thirty-day month. Any
security deposits held by Seller under the Leases on the Closing Date shall be
credited to Buyer and charged to Seller at the Closing.
-11-
<PAGE> 15
ARTICLE 9
General
9.1 Notices. All notices and other communications under this Agreement
shall be properly given only if made in writing and mailed by certified mail,
return receipt requested, postage prepaid, or delivered by hand (including
messenger or recognized delivery, courier or air express service) to the party
at the address set forth in this section 9.1 or such other address as such party
may designate by notice to the other party. Such notices and other
communications shall be effective on the date of receipt (evidenced by the
certified mail receipt) if mailed or on the date of such hand delivery (or upon
refusal to accept such delivery) if hand delivered. If any such notice or other
communication is not received or cannot be delivered due to a change in the
address of the receiving party of which notice was not previously given to the
sending party or due to a refusal to accept by the receiving party, such notice
or other communication shall be effective on the date delivery is attempted. Any
notice or other communication under this Agreement may be given on behalf of a
party by the attorney for such party.
(a) The address of Seller is:
TriNet Corporate Realty Trust, Inc.
One Embarcadero Center, Suite 3300
San Francisco, CA 94111
Attention: Mr. James Pierre
with a copy to:
TriNet Corporate Realty Trust, Inc.
One Embarcadero Center, Suite 3300
San Francisco, CA 94111
Attention: Geoffrey M. Dugan, Esq.
and with a further copy to:
Pillsbury Madison & Sutro LLP
235 Montgomery Street, 14th Floor
San Francisco, CA 94104
Attention: Glenn Q. Snyder, Esq.
(b) The address of Buyer is:
Network Appliance, Inc.
495 East Java Drive
Sunnyvale, CA 94089
Attention: Mr. Thom Bryant
-12-
<PAGE> 16
with a copy to:
Brobeck, Phleger & Harrison LLP
Spear Street Tower
One Market Plaza
San Francisco, CA 94105
Attention: Douglas Van Gessel, Esq.
9.2 Attorneys' Fees. If there is any legal action or proceeding between
Seller and Buyer arising from or based on this Agreement, the unsuccessful party
to such action or proceeding shall pay to the prevailing party all costs and
expenses, including reasonable attorneys' fees, incurred by such prevailing
party in such action or proceeding and in any appeal in connection therewith. If
such prevailing party recovers a judgment in any such action, proceeding or
appeal, such costs, expenses and attorneys' fees shall be included in and as a
part of such judgment.
9.3 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
9.4 Construction. Seller and Buyer acknowledge that each party and its
counsel have reviewed and revised this Agreement and that the rule of
construction to the effect that ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any document executed and delivered by either party in connection with the
transactions contemplated by this Agreement. The captions in this Agreement are
for convenience of reference only and shall not be used to interpret this
Agreement.
9.5 Terms Generally. The defined terms in this Agreement shall apply
equally to both the singular and the plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The term "person" includes individuals, corporations,
partnerships, trusts, other legal entities, organizations and associations, and
any government or governmental agency or authority. The words "include,"
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation." The words "approval," "consent" and "notice" shall be deemed to be
preceded by the word "written."
9.6 Further Assurances. From and after the date of this Agreement,
Seller and Buyer agree to do such things, perform such acts, and make, execute,
acknowledge and deliver such documents as may be reasonably necessary or proper
and usual to complete the transactions contemplated by this Agreement and to
carry out the purpose of this Agreement in accordance with this Agreement.
9.7 Partial Invalidity. If any provision of this Agreement is determined
by a proper court to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability shall not affect the other provisions of this
Agreement and this Agreement shall remain in full force and effect without such
invalid, illegal or unenforceable provision.
-13-
<PAGE> 17
9.8 Waivers. No waiver of any provision of this Agreement or any breach
of this Agreement shall be effective unless such waiver is in writing and signed
by the waiving party and any such waiver shall not be deemed a waiver of any
other provision of this Agreement or any other or subsequent breach of this
Agreement.
9.9 Confidentiality. Except for such disclosure as may be required by
law or agreed to by the parties hereto in writing, Seller and Buyer agree that,
prior to the Closing, they shall keep in confidence this Agreement and each and
every term and provision hereof, including, without limitation, the Purchase
Price; provided, however, that Buyer and Seller may disclose this Agreement to
their employees, accountants, attorneys and lenders as necessary to fulfill the
terms hereof.
9.10 No Third-Party Beneficiaries. Nothing in this Agreement shall be
construed as conferring upon Tenant or any other third party any rights
hereunder. Buyer and Seller do not intend that this Agreement have any
third-party beneficiaries.
9.11 Miscellaneous. The Exhibits attached to this Agreement are made a
part of this Agreement. Buyer shall not assign or transfer this Agreement, or
any interest in or part of this Agreement, without the prior consent of Seller,
except that Buyer may assign this Agreement, without Seller's prior written
consent, as necessary to facilitate a synthetic lease transaction or an exchange
pursuant to section 1031 of the Internal Revenue Code. No such assignment or
transfer shall release Buyer from any obligation or liability under this
Agreement. Subject to the foregoing, this Agreement shall benefit and bind
Seller and Buyer and their respective personal representatives, heirs,
successors and assigns. Time is of the essence of this Agreement. This Agreement
may be executed in counterparts, each of which shall be an original, but all of
which shall constitute one and the same Agreement. This Agreement may not be
amended or modified except by a written agreement signed by Seller and Buyer.
This Agreement constitutes the entire and integrated agreement between Seller
and Buyer relating to the purchase and sale of the Property and supersedes all
prior agreements, understandings, offers and negotiations, oral or written, with
respect to the sale of the Property.
-14-
<PAGE> 18
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement
as of the date first hereinabove written.
SELLER: TRINET ESSENTIAL FACILITIES XII,
INC., a Maryland corporation
By /s/ [SIGNATURE ILLEGIBLE]
---------------------------------
Its VICE PRESIDENT
--------------------------------
BUYER: NETWORK APPLIANCE, INC., a
California corporation
By /s/ [SIGNATURE ILLEGIBLE]
---------------------------------
Its CHIEF FINANCIAL OFFICER
--------------------------------
-15-
<PAGE> 19
LEGAL DESCRIPTION
EXHIBIT A
<PAGE> 20
ITEMS DELIVERED BY SELLER
1. Copies of all recorded exception documents listed in Preliminary Report.
2. Copy of the Lease, including all amendments and ancillary agreements.
3. Copies of soils, geologic and environmental reports.*
4. Plans and specifications and structural reports.*
5. Copies of certificates of occupancy and governmental permits.*
-------------------
* To the extent in Seller's possession or available to Seller at no material
expense.
EXHIBIT B
<PAGE> 21
Recorded at Request of:
------------------------------
When Recorded Mail to:
------------------------------
------------------------------
------------------------------
Mail Tax Statements to:
------------------------------
------------------------------
------------------------------
GRANT DEED
For valuable consideration, receipt of which is acknowledged, TRINET
ESSENTIAL FACILITIES XII, INC., a Maryland corporation, hereby grants to NETWORK
APPLIANCE, INC., a California corporation, the real property in the City of
Sunnyvale, County of Santa Clara, State of California, described in Exhibit A
attached hereto and made a part hereof, subject to the matters described in
Exhibit B attached hereto and made a part hereof.
Dated: ___________, 2000.
TRINET ESSENTIAL FACILITIES XII, INC.,
a Maryland corporation
By
-------------------------------------
Its
------------------------------------
EXHIBIT C
<PAGE> 22
EXHIBIT A
GRANT DEED
All of the real property in the City of Sunnyvale, County of Santa
Clara, State of California, described as follows:
EXHIBIT C
<PAGE> 23
EXHIBIT B
GRANT DEED
Permitted Exceptions
EXHIBIT C
<PAGE> 24
STATE OF CALIFORNIA, )
) ss.
County of ____________________. )
On ____________, 2000, before me, ______________________________
__________________________, a Notary Public in and for the State of California,
personally appeared ______________________________________________, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to the within instrument, and acknowledged to me
that he or she executed the within instrument in his or her authorized capacity
and that, by his or her signature on the within instrument, the person or entity
upon behalf of which he or she acted executed the within instrument.
WITNESS my hand and official seal.
Signature _________________________ (Seal)
EXHIBIT C
<PAGE> 25
SELLER'S CLOSING CERTIFICATE
For valuable consideration, receipt of which is acknowledged, TRINET
ESSENTIAL FACILITIES XII, INC., a Maryland corporation ("Seller"), hereby
certifies to NETWORK APPLIANCE, INC., a California corporation ("Buyer"), that
all representations and warranties made by Seller in section 5.1 of the Purchase
Agreement (the "Purchase Agreement") dated ______________, 1999, between Seller
and Buyer are true and correct on and as of the date of this Certificate. This
Certificate is executed by Seller and delivered to Buyer pursuant to the
Purchase Agreement.
Dated: ____________, 2000.
TRINET ESSENTIAL FACILITIES XII, INC.,
a Maryland corporation
By
-------------------------------------
Its
------------------------------------
EXHIBIT D
<PAGE> 26
BUYER'S CLOSING CERTIFICATE
For valuable consideration, receipt of which is acknowledged, NETWORK
APPLIANCE, INC., a California corporation ("Buyer"), hereby certifies to TRINET
ESSENTIAL FACILITIES XII, INC., a Maryland corporation ("Seller"), that all
representations and warranties made by Buyer in section 5.2 of the Purchase
Agreement (the "Purchase Agreement") dated _____________, 1999, between Seller
and Buyer are true and correct on and as of the date of this Certificate. This
Certificate is executed by Buyer and delivered to Seller pursuant to the
Purchase Agreement.
Dated: ____________, 2000.
NETWORK APPLIANCE, INC.,
a California corporation
By
-------------------------------------
Its
------------------------------------
EXHIBIT E
<PAGE> 27
ASSIGNMENT OF LEASES
THIS ASSIGNMENT, made as of ___________, 2000, by and between
TRINET ESSENTIAL FACILITIES XII, INC., a Maryland corporation ("Seller"), and
NETWORK APPLIANCE, INC., a California corporation ("Buyer"),
W I T N E S S E T H:
For valuable consideration, receipt of which is acknowledged,
Seller and Buyer agree as follows:
1. Assignment and Assumption.
(a) Seller hereby assigns and transfers to Buyer all right, title
and interest of Seller in and to the Lease (the "Lease") described in Exhibit A
attached hereto and made a part hereof.
(b) Buyer hereby accepts the foregoing assignment, and assumes
and agrees to perform all of the covenants and agreements in the Lease to be
performed by the landlord thereunder from and after the date of this Assignment.
2. Indemnification.
(a) Seller shall indemnify and defend Buyer against and hold
Buyer harmless from all claims, demands, liabilities, losses, damages, costs and
expenses, including, without limitation, reasonable attorneys' fees and
disbursements, that are caused by any failure by Seller to perform the
obligations of the landlord under the Lease before the date of this Assignment.
(b) Buyer shall indemnify and defend Seller against and hold
Seller harmless form all claims, demands, liabilities, losses, damages, costs
and expenses, including, without limitation, reasonable attorneys' fees and
disbursements, that are caused by any failure by Buyer to perform the
obligations of the landlord under the Lease on or after the date of this
Assignment.
3. Further Assurances. Seller and Buyer agree to execute such
other documents and perform such other acts as may be reasonably necessary or
proper and usual to effect this Assignment.
4. Governing Law. This Assignment shall be governed by and
construed in accordance with the laws of the State of California.
EXHIBIT F
<PAGE> 28
5. Successors and Assigns. This Assignment shall be binding upon
and shall inure to the benefit of Seller and Buyer and their respective personal
representatives, heirs, successors and assigns.
IN WITNESS WHEREOF, Seller and Buyer have executed this
Assignment as of the date first hereinabove written.
TRINET ESSENTIAL FACILITIES XI, INC.,
a Maryland corporation
By
-------------------------------------
Its
------------------------------------
NETWORK APPLIANCE, INC., a
California corporation
By
-------------------------------------
Its
------------------------------------
EXHIBIT A
ASSIGNMENT OF LEASES
Description of Lease
EXHIBIT F
<PAGE> 29
CERTIFICATE OF NONFOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a transferee of
a U.S. real property interest must withhold tax if the transferor is a foreign
person. To inform the transferee that withholding of tax is not required upon
the disposition of a U.S. real property interest by TRINET ESSENTIAL FACILITIES
XII, INC., a Maryland corporation ("Seller"), the undersigned hereby certifies
the following on behalf of Seller:
1. Seller is not a foreign corporation, foreign partnership,
foreign trust or foreign estate (as those terms are defined in the Internal
Revenue Code and Income Tax Regulations);
2. Seller's U.S. employer identification number is ___________;
and
3. Seller's office address is One Embarcadero Center, Suite
3300, San Francisco, CA 94111.
Seller understands that this certification may be disclosed to
the Internal Revenue Service by the transferee 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
certificate 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.
Dated: ____________, 2000.
TRINET ESSENTIAL FACILITIES XII, INC.,
a Maryland corporation
By
-------------------------------------
Its
------------------------------------
EXHIBIT H
<PAGE> 30
GENERAL RELEASE
THIS GENERAL RELEASE ("Agreement") is made and entered into as of
____________, 2000 by and among LOCKHEED MARTIN CORPORATION, a Maryland
corporation ("Lockheed"), NETWORK APPLIANCE, INC., a California corporation
("Network"; Lockheed and Network are referred to herein, collectively, as
"Releasors") and TRINET ESSENTIAL FACILITIES XII, INC., a Maryland corporation
("TriNet").
Recitals
A. TriNet is the landlord and Lockheed is the tenant under a lease dated
May 5, 1978 (as amended, the "Lease") between TriNet's predecessor in title, The
Prudential Insurance Company of America, and Lockheed's predecessor-in-title,
Ford Aerospace and Communications Corporation, respecting property known as 1260
Crossman Avenue, Sunnyvale, California (the "Property"). Lockheed and Network
have entered into an Agreement of Assignment of Lease, dated as of September 3,
1999 (as the same may be amended, modified, supplemented or restated from time
to time, the "Assignment Agreement"), pursuant to which Lockheed is assigning
the Lease to Network. TriNet has consented to the Assignment Agreement.
B. As of the date hereof, TriNet is selling the Property to ________,
pursuant to a Purchase Agreement dated as of September __, 1999 (the "Purchase
Agreement") between TriNet and Network.
C. Lockheed and Network have each agreed to release TriNet from any
claims or liabilities relating to the Lease or the Property, as set forth in
detail hereinbelow.
N o w, T h e r e f o r e, in light of the foregoing recitals and for
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Lockheed and Network agree as follows:
1. (a) Lockheed and Network each hereby releases and forever discharges
TriNet and its constituent owners, and TriNet's and such constituent owners'
officers, directors, agents, employees, attorneys, successors and assigns and
each of them separately and collectively (hereinafter referred to separately and
collectively as the "Releasees") from any and all claims, liens, demands, causes
of action, obligations, damages and liabilities, known or unknown, that any
Releasor ever had, now has or may hereafter claim to have against any of the
Releasees arising directly or indirectly out of, or in any way connected with or
based upon, or related in any way to, the Lease or the Property (the foregoing
matters from which the Releasees are released are referred to herein as the
"Claims"). Notwithstanding the foregoing, Network neither releases nor
discharges TriNet from, and the Claims shall not include, any claims, liens,
demands, causes of action, obligations, damages and liabilities (i) arising
under or in connection with the Purchase Agreement, or (ii) arising from
TriNet's willful misconduct.
EXHIBIT H
<PAGE> 31
(b) The foregoing release extends to unknown claims and each
Releasor expressly waives all rights under section 1542 of the Civil Code of
California which provides:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the
timer of executing the release, which if known by him must have
materially affected his settlement with the debtor."
2. In the event of any breach of this Agreement, the party
aggrieved shall be entitled to recover from the breaching party, not only the
amount of any judgment which may be awarded against said breaching party, but
also all such other damages, cost and expenses as may be incurred by said
aggrieved party, including court costs and attorneys' fees, in connection
therewith.
3. Each Releasor acknowledges that nothing in this Agreement
constitutes an admission or concession by any of the Releasees of any liability
of any kind to the Releasors, liability for which is expressly denied by the
Releasees.
4. This Agreement shall bind and shall inure to the benefit of
the respective heirs, executors, administrators, successors and assigns of the
parties hereto.
This Agreement is executed as of the date first above written.
LOCKHEED MARTIN CORPORATION
a Maryland corporation
By
---------------------------------
Its
-----------------------------
NETWORK APPLIANCE, INC., a
California corporation
By
---------------------------------
Its
-----------------------------
EXHIBIT H