EXHIBIT 10.23
SALE AND PURCHASE AGREEMENT
This Sale and Purchase Agreement (the "AGREEMENT"), is made as of
March 4, 1999 (the "EFFECTIVE DATE"), between SILICON GRAPHICS, INC., a
corporation organized under the laws of the State of Delaware ("SGI"), on behalf
of itself and its wholly-owned subsidiary, CRAY RESEARCH, L.L.C., a limited
liability company organized under the laws of the State of Delaware ("CRAY")
(SGI and Cray are hereinafter collectively referred to as "SELLER"), and WAM!NET
INC., a corporation organized under the laws of the State of Minnesota
("WAM!NET").
In consideration of the mutual covenants and agreements hereinafter
contained, the parties agree as follows:
1. SALE AND PURCHASE OF PROPERTY. Seller shall sell to WAM!NET, and
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WAM!NET shall purchase from Seller the following property (collectively, the
"PROPERTY"):
(a) Real Property. Certain land (the "REAL PROPERTY") situated
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in the City of Eagan (the "CITY"), in the County of Dakota, State of
Minnesota, commonly known as 655 Lone Oak Parkway, Eagan, Minnesota,
consisting of Lots 1 and 2, Block 1, Cray Second Addition, together with
(a) all fences, buildings, fixtures and other improvements thereon (the
"IMPROVEMENTS") and (b) all easements, air rights, and other rights
benefiting or appurtenant to the Real Property and Improvements; provided,
however, that the Property shall only include such development and parking
rights as provided in the Development Rights Distribution Agreement and
Parking Allocation Agreement (both as defined below);
(b) Personal Property. All of Seller's right, title and interest
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in the furniture, fixtures, equipment, mechanical systems, wiring, cabling,
keys, machinery and such other personal property owned by Seller and
specifically described in Exhibit 1(b) attached hereto ("PERSONAL
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PROPERTY");
(c) Development and Parking Rights. All of Seller's right, title
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and interest in and to a portion of the development rights and parking
entitlements granted and/or approved for or in connection with the Real
Property (the "DEVELOPMENT AND PARKING RIGHTS") as provided in a
Development Rights Distribution Agreement (the "DEVELOPMENT RIGHTS
DISTRIBUTION AGREEMENT") and Allocation of Parking Spaces Agreement (the
"PARKING ALLOCATION AGREEMENT") both in substantially the same forms as
Exhibit 1(c) attached hereto;
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(d) Permits. All of Seller's right, title and interest in and to
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each and every permit, approval, license, certificate, variance and other
governmental permissions
which relate to or benefit the Real Property or Improvements, except as
otherwise provided in the Development Rights Distribution Agreement and
Parking Allocation Agreement (the "PERMITS").
2. PURCHASE PRICE AND MANNER OF PAYMENT. The total purchase price
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("PURCHASE PRICE") to be paid by WAM!NET to Seller for the Property shall be
Forty Million and No/100 Dollars ($40,000,000.00). The Purchase Price shall be
payable by the issuance of Class B Preferred Stock of WAM!NET pursuant to terms
and conditions of that certain Preferred Stock Purchase Agreement of even date
herewith by and between Seller, as buyer, and WAM!NET, as seller (the "STOCK
PURCHASE AGREEMENT"). For purposes of this Agreement, the parties hereto agree
that a portion of the Purchase Price in the amount of $1,000,000 shall be
allocable to the purchase price for the Personal Property.
3. CONDITIONS TO WAM!NET'S OBLIGATIONS. The obligations of WAM!NET
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under this Agreement are conditioned upon satisfaction or waiver by WAM!NET of
each of the following by the Closing Date:
(a) Title Insurance. The Title Insurer (as defined below) is
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prepared to issue the Title Policy (as defined below), showing fee title to
the Real Property and Improvements vested in WAM!NET, subject only to the
Permitted Exceptions (as defined below).
(b) Performance of Seller's Obligations. Seller shall have
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performed all of the obligations required to be performed by Seller under
this Agreement, as and when required by this Agreement.
(c) Closing of Stock Purchase Agreement. The closing of the
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transactions contemplated in the Stock Purchase Agreement shall occur
simultaneously with the Closing of the transactions contemplated in this
Agreement.
(d) Representations and Warranties. The representations and
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warranties of Seller contained in this Agreement will be true now and on
the Closing Date as if made on the Closing Date.
4. CONDITIONS TO SELLER'S OBLIGATIONS. The obligations of Seller
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under this Agreement are conditioned upon satisfaction or waiver by Seller of
each of the following by the Closing Date:
(a) Performance of WAM!NET's Obligations. WAM!NET shall have
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performed all of the obligations required to be performed by WAM!NET under
this Agreement, as and when required by this Agreement.
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(b) Closing of Stock Purchase Agreement. The closing of the
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transactions contemplated in the Stock Purchase Agreement shall occur
simultaneously with the Closing of the transactions contemplated in this
Agreement.
(c) Representations and Warranties. The representations and
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warranties of WAM!NET contained in this Agreement will be true now and on
the Closing Date as if made on the Closing Date.
5. TITLE MATTERS.
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(a) Title Evidence. WAM!NET hereby acknowledges receipt and an
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approval of the following (collectively, the "TITLE EVIDENCE"):
(1) Title Insurance Commitment. A commitment for an ALTA
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Form B 1992 Owner's Policy of Title Insurance dated as of December 17,
1998 (Re-issue No. 1), as amended by endorsements attached thereto
(the "TITLE COMMITMENT"), issued by Commonwealth Land Title Insurance
Company (the "TITLE INSURER"), a copy of which is attached hereto as
Exhibit 5(a)(1), together with copies of all underlying recorded title
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exception documents referred to in Schedule B thereof.
(2) Survey. A survey of the Real Property dated March 2,
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1999 (Re-issue No. 1) (the "SURVEY"), certified to Seller, WAM!NET and
the Title Insurer, and all survey matters and title exceptions shown
therein.
(b) Permitted Title Exceptions. Seller shall convey to WAM!NET
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insurable fee title to the Real Property, subject only to the following
title exceptions (collectively, "PERMITTED EXCEPTIONS"):
(1) Liens to secure payment of non-delinquent real estate
taxes and assessments;
(2) Title Insurer's standard preprinted exceptions to
coverage under the Title Policy, excluding such exceptions related to
survey matters, parties in possession and liens for labor, materials
and services;
(3) All title exceptions disclosed by the Title Commitment;
(4) All title exceptions shown on the Survey;
(5) That certain unrecorded Amendment to Agreement (Land Use
Covenants and Restrictions) dated February 28, 1992 which amends
Agreement (Land Use
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Covenants and Restrictions) dated December 2, 1986, filed of record
December 3, 1986, as Document No. 754646;
(6) The Parking Allocation Agreement; and
(7) The Development Rights Distribution Agreement.
(c) Title Policy. At Closing, Title Insurer shall issue to
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WAM!NET an owner's title insurance policy ("TITLE POLICY") issued by the
Title Insurer pursuant to the Title Commitment, or a suitably marked up
Title Commitment initialed by the Title Insurer undertaking to issue such a
Title Policy within a reasonable time in the form required by the Title
Commitment.
6. CLOSING AND POSSESSION. The closing of the purchase and sale
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contemplated by this Agreement (the "CLOSING") shall occur on the same date as
the closing contemplated in the Stock Purchase Agreement, unless postponed or
extended in writing by the parties (the "CLOSING DATE"). The Closing shall take
place at 10:00 a.m. local time at the offices of Larkin, Hoffman, Daly &
Lindgren, Ltd., in Bloomington, Minnesota, or at such other place and time as
may be acceptable to Seller and WAM!NET.
(a) Seller's Closing Documents. On the Closing Date, Seller
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shall execute and/or deliver to WAM!NET the following (collectively, the
"SELLER'S CLOSING DOCUMENTS"):
(1) A General Warranty Deed (the "GENERAL WARRANTY DEED") in
the form attached hereto as Exhibit 6(a)(1), conveying fee title to
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the Real Property to WAM!NET, free and clear of all encumbrances,
other than the Permitted Exceptions;
(2) The Development Rights Distribution Agreement and
Parking Allocation Agreement;
(3) The Lease Agreement (as defined below);
(4) A warranty bill of sale for the Personal Property in the
form attached hereto as Exhibit 6(a)(4), conveying title to the
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Personal Property to WAM!NET, free and clear of all liens and
encumbrances created by or through Seller;
(5) Such affidavits by Seller in substantially the same form
attached hereto as Exhibit 6(a)(5), or other documents as may be
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reasonably required by the Title Insurer in order to record Seller's
Closing Documents and issue the Title Policy required by Section 5 of
this Agreement;
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(6) A nonforeign affidavit in substantially the same form
attached hereto as Exhibit 6(a)(6), containing such information as is
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required by IRC Section 1445(b)(2) and its regulations;
(7) A well disclosure statement and individual sewage
treatment system disclosure form in substantially the same forms
attached hereto as Exhibit 6(a)(7), disclosing any wells and sewage
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treatment systems existing on the Real Property. If no wells exist
thereon, a statement to that effect may be inserted on the General
Warranty Deed in lieu of delivering the well disclosure statement;
(8) A current corporate resolution of SGI and unanimous
written consent of the board of directors of Cray, authorizing the
transactions contemplated by this Agreement and the execution and
delivery of Seller's Closing Documents;
(9) The Management Agreement (as defined below);
(10) All original documents that may be necessary for
WAM!NET to continue to operate the Property. Notwithstanding the
foregoing delivery requirement, delivery of such originals shall be
delayed until such time as the Management Agreement expires or is
terminated. WAM!NET may at any time make copies of the original
documents. Where necessary to comply with statutory record retention
requirements, Seller may retain originals of records and provide
copies to WAM!NET.
(b) WAM!NET's Closing Documents. On the Closing Date, WAM!NET
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will execute and/or deliver to Seller the following (collectively,
"WAM!NET'S CLOSING DOCUMENTS"):
(1) The Purchase Price to be paid as required by Section 2
hereof;
(2) The Development Rights Distribution Agreement and
Parking Allocation Agreement;
(3) The Lease Agreement;
(4) The Management Agreement;
(5) Such affidavits of WAM!NET or other documents as may be
reasonably required by the Title Insurer in order to record WAM!NET's
Closing Documents and issue the Title Policy required by SECTION 5 of
this Agreement.
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(6) A current corporate resolution of WAM!NET, authorizing
the transactions contemplated by this Agreement and the execution and
delivery of WAM!NET's Closing Documents;
7. PRORATIONS. Seller and WAM!NET shall make the following
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prorations and allocations at Closing:
(a) Title Insurance and Closing Fee. Seller shall pay the cost
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of the Title Evidence. WAM!NET shall pay the premium for the Title Policy.
Seller and WAM!NET will each pay one-half of any reasonable and customary
closing fee or charge imposed by the Title Insurer or its designated
closing agent.
(b) Deed Tax. Seller shall pay all state deed tax due on the
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General Warranty Deed to be delivered by Seller under this Agreement.
(c) Real Estate Taxes and Special Assessments. Seller and
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WAM!NET shall prorate non-delinquent general real estate taxes and the
current installment of assessments payable in the year of closing as of the
Closing Date based upon a calendar year basis. If the amount of such real
estate taxes cannot be finally determined on the Closing Date, the taxes
shall be prorated based upon the previous year's real estate taxes. When
the actual amount of such taxes, including any interest payable therewith,
is determined and announced by the appropriate public authorities, WAM!NET
shall pay the full amount of such taxes and offset or credit, as
applicable, the difference between Seller's estimated pro rata portion of
the taxes and the Seller's pro rata portion of the actual taxes against or
towards, as applicable, any amount owed by Seller to WAM!NET under the
Lease Agreement. WAM!NET shall assume any assessments levied, "pending,"
deferred or constituting a lien against the Real Property as of the Closing
Date.
(d) Recording Costs. Seller will pay the cost of recording all
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documents necessary to place record title in Seller in the condition
warranted by Seller in this Agreement. WAM!NET will pay the cost of
recording all other documents.
(e) Sales Tax. Seller shall pay sales tax of the State of
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Minnesota, if any, due by reason of the transactions contemplated by this
Agreement.
(f) Utilities. Promptly following the Closing, Seller shall
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notify all utilities serving the Property of the pending change in
ownership and direct that all future billings be made to WAM!NET at its
notice address with no interruption of service. Seller shall cause all
meters for utilities to be read during the daylight hours on the
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Closing Date, and Seller shall pay all charges for all utilities through
that time. Seller and WAM!NET shall prorate as of the Closing Date any
charges for utilities that are paid each month pursuant to the Lease
Agreement. Seller shall transfer to WAM!NET any and all prepaid deposits or
rents on utilities or services if they are transferable or refundable, and
WAM!NET shall pay those amounts to Seller within thirty (30) days following
Seller's written demand therefor.
(g) Attorneys' Fees. Seller and WAM!NET shall each pay its own
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attorneys' fees in connection with the preparation and negotiation of this
Agreement and the Closing, except that a party defaulting under this
Agreement or any of its respective closing documents shall pay the
reasonable attorneys' fees and court costs incurred by the nondefaulting
party to enforce its rights regarding such default.
8. REPRESENTATIONS, WARRANTIES AND INDEMNITY BY SELLER. Seller
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represents and warrants to WAM!NET as follows:
(a) Organization; Authority. SGI and Cray are duly organized and
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in good standing under the laws of the State of Delaware; and are duly
qualified to transact business in the State of Minnesota. SGI and Cray
have the requisite organizational power and authority to execute and
perform this Agreement and any Seller's Closing Documents to be signed by
them; such documents have been (or will be prior to Closing) duly
authorized by all necessary corporate action on the part of SGI and all
necessary company action on the part of Cray and at the Closing shall have
been duly executed and delivered; such execution, delivery, and performance
by Seller of such documents does not conflict with or result in a violation
of each Seller's governing documents, any judgment, order, or decree of any
court or arbiter to which Seller is a party, or any agreement by which
Seller is bound; and such documents are and shall be valid and binding
obligations of Seller, enforceable in accordance with their terms.
(b) Title to Real Property. Seller owns the Real Property, free
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and clear of all encumbrances, except the Permitted Exceptions. Seller
owns Outlot D, Cray Second Addition ("OUTLOT D") free and clear of all
encumbrances.
(c) Title to Personal Property. Seller owns the Personal
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Property, free and clear of all encumbrances created by or through Seller.
(d) Utilities. Except as otherwise disclosed in Exhibit 8
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attached hereto, (i) gas, sanitary, and storm sewer and water lines are
connected to the Property; and (ii) Seller has received no written notice
of actual or
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threatened reduction or curtailment of any utility service now supplied to
the Property.
(e) Litigation and Other Matters. Except as otherwise disclosed
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in Exhibit 8 attached hereto, to Seller's actual knowledge, there are no
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lawsuits, administrative or arbitration hearings, governmental
investigations or proceedings affecting the Real Property or Improvements
or the use thereof, and Seller has not received notice of any such
proceedings or threatened proceedings.
(f) Rights of Others to Purchase Property. Except as otherwise
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disclosed in Exhibit 8 attached hereto, Seller has not entered into any
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other contracts or agreements for the sale of all or any portion of the
Property, and there are no existing rights of first refusal or options to
purchase all or any portion of the Property, or any other rights of others
that would prevent the consummation of this Agreement.
(g) Private Restrictions. Except as otherwise disclosed in
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Exhibit 8 attached hereto, to Seller's actual knowledge, there are no
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unrecorded contracts, leases, private restrictions or agreements with any
public authority that do not appear in the Title Commitment and that will
adversely affect the present or future uses that may be made of the Real
Property or Improvements.
(h) Condemnation. Except as otherwise disclosed in Exhibit 8
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attached hereto, to Seller's actual knowledge, there are no pending
condemnation, eminent domain or other similar action, suit or proceeding
that would affect the Property.
(i) Real Estate Tax Appeals. Except as otherwise disclosed in
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Exhibit 8 attached hereto, to Seller's actual knowledge, there are no
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pending real estate tax appeals in connection with the Real Property, and
there are no assessment agreements which currently set a minimum market
value on the Real Property or the Improvements.
(j) Assessments. Except as otherwise disclosed in Exhibit 8
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attached hereto, to Seller's actual knowledge, there are no actual or
proposed special assessments or reassessments of the Real Property.
(k) FIRPTA. Seller is not a "foreign person," "foreign
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partnership," "foreign trust" or "foreign estate," as those terms are
defined in Section 1445 of the Internal Revenue Code.
(l) Hazardous Substances. Except as otherwise disclosed in the
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documents listed in Exhibit 8(t) attached hereto, to the Seller's actual
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knowledge: (1) no toxic or
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hazardous substances or wastes, pollutants, or contaminants (including,
without limitation, asbestos, urea formaldehyde, the group of organic
compounds known as polychlorinated biphenyls, petroleum products including
gasoline, fuel oil, crude oil, and various constituents of such products,
and any hazardous substance (collectively "HAZARDOUS SUBSTANCES") as
defined in any federal, state or local law rule or ordinance (collectively,
the "ENVIRONMENTAL LAWS") dealing with environmental matters have been
generated, treated, stored, released, or disposed of, or otherwise placed,
deposited in, or located on the Real Property by Seller, or any party
controlling, under common control of, or controlled by, Seller in violation
of Environmental Laws; (2) no activity has been undertaken on the Real
Property by Seller, or any party controlling, under common control of, or
controlled by, Seller; that would cause or contribute to (a) the Real
Property becoming a treatment, storage, or disposal facility within the
meaning of the Environmental Laws, (b) a release or threatened release of
toxic or hazardous wastes or substances, pollutants, or contaminants, from
the Real Property within the Environmental Laws, or (c) the discharge of
pollutants or effluents into any water source or system, the dredging or
filling of any waters, or the discharge into the air of any emissions that
would require a permit under any Environmental Laws; (3) no substances or
conditions exist in or on the Real Property that may support a claim or
cause of action under any Environmental Laws; (4) no above-ground or
underground tanks are located in or about the Real Property or have been
located under, in, or about the Real Property and have subsequently been
removed or filled; and (5) to the extent storage tanks exist on or under
the Real Property, such storage tanks have been duly registered with all
appropriate regulatory and governmental bodies and otherwise are in
compliance with applicable Environmental Laws.
(m) Americans With Disabilities Act. Except as otherwise
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disclosed in that certain Accessibility Audit from RSP Architects, Ltd
dated April 1993 (the "ADA REPORT"), to the Seller's actual knowledge there
are no existing violations of Title III of the Americans With Disabilities
Act of 1990 (the "ADA") and the ADA Accessibility Guidelines for Buildings
and Facilities (the "GUIDELINES") at the Real Property.
(n) Operating Statement. Attached hereto as Exhibit 8(n) is a
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copy of the unaudited operating statement for the Real Property for the
1997-1998 fiscal year, which is true, accurate and complete in all material
respects.
(o) Compliance with Laws. Except as otherwise disclosed in
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Exhibit 8, Seller has not received any notice of violations of any existing
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local, state, and federal regulations concerning the maintenance and
operation of the
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Real Property, including zoning, building, health and safety, fire safety
and environmental codes and laws, and to the Seller's actual knowledge no
facts or circumstances exist which would constitute a violation thereof.
(p) Occupants/Tenants. As of the Effective Date there are no
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tenants, licensees, or occupants of the Real Property other than Seller,
and there are no leases, licenses or occupancy agreements outstanding in
connection with the Real Property.
(q) Outlot D Transfers. Seller shall give written notice to any
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prospective purchaser or mortgagee of Outlot D of the existence of
WAM!NET's access rights (as described in Section 13 hereof) over and across
Outlot D prior to Outlot D being sold, mortgaged, pledged, encumbered,
assigned, or otherwise transferred to another party.
(r) Service Agreements and Contracts. Except as listed in
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Exhibit 8 there are no service agreements or contracts in connection with
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the operation of the Property that bind the Real Property or may require
performance by WAM!NET by reason of acquisition of title to the Real
Property by WAM!NET.
(s) Development and Parking Rights. To the Seller's actual
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knowledge: (i) the Real Property together with Outlots A, B, C and D, Cray
Second Addition and Outlot G, Lone Oak Addition possess certain development
and parking rights as summarized in the Development Rights Distribution
Agreement and the Parking Allocation Agreement; and (ii) there are no other
documents or information regarding such rights other than the documents and
information set forth in Exhibit 8(t) and the Permitted Exceptions.
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(t) All Documents. Exhibit 8(t) attached hereto contains a true,
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correct and complete list of all material documents, information and
records in Seller's possession or under Seller's control which pertain to
the ownership and use of the Property, except for service and maintenance
agreements executed in connection with operation of the Property.
For purposes of this Agreement, "Seller's actual knowledge" shall mean
the actual knowledge (without inquiry or investigation of Raymond Johnson, Vice
President, Corporate Real Estate, Facilities and Services, Merey Price, Manager,
Corporate Facilities, Mark Lichty, on-site building engineer, and Michael
Hirahara, Manager, Corporate Facilities. Except for the specific
representations and warranties contained in this Agreement, Seller makes no
express or implied representations and warranties to WAM!NET regarding the
Property, the condition of the Property
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or its fitness for any particular use, and Buyer acknowledges and agrees that it
is acquiring the Property on an "as-is, where-as" basis. The foregoing
representations and warranties shall survive the Closing until the first
anniversary thereof, except for the representations and warranties contained in
Sections 8(e), (l) and (o) which shall survive for one (1) full year following
the date on which each respective portion of the Property is turned over to
WAM!NET for WAM!NET's exclusive use, or shared use for common areas of the
Property. If written notice of a claim has been given prior the expiration of
the applicable representations and warranties, the relevant representations and
warranties shall survive as to such claim until the claim has been finally
resolved. Seller will indemnify WAM!NET, its successors and assigns against, and
will hold WAM!NET harmless from, any expenses or damages, including reasonable
attorneys' fees, that WAM!NET incurs because of the breach of any of the above
representations and warranties. In no event, however, shall Seller have any
liability to WAM!NET for incidental, consequential, special or punitive damages
arising from the breach of any such representations and warranties.
9. REPRESENTATIONS, WARRANTIES AND INDEMNITY BY WAM!NET. WAM!NET
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represents and warrants to Seller as follows:
(a) WAM!NET is duly organized and in good standing under the laws
of the State of Minnesota; that WAM!NET is duly qualified to transact
business in the State of Minnesota; that WAM!NET has the power and
authority to execute this Agreement and any WAM!NET's Closing Documents
signed by it; that all such documents have been duly authorized by all
necessary corporate action on the part of WAM!NET and at the Closing shall
have been duly executed and delivered; that the execution, delivery, and
performance by WAM!NET of such documents does not conflict with or violate
WAM!NET's articles of incorporation, bylaws, or any judgment, order or
decree of any court or arbiter or any agreement by which WAM!NET is bound;
and that all such documents are valid and binding obligations of WAM!NET
and are enforceable in accordance with their terms.
(b) WAM!NET has conducted a review of the Title Commitment
(including all underlying documents) and Survey; a review of the documents
and information listed on Exhibit 8(t), and inspections of the Property as
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deemed necessary or desirable by WAM!NET, including, without limitation, an
engineering inspection of the structure of the Improvements. WAM!NET
further represents and warrants that Seller has provided sufficient access
to the Property for conducting such tests and inspections as WAM!NET has
deemed necessary or desirable; WAM!NET has satisfied itself as to the
condition of the Property, the operations of the Property and the
suitability of the Property for the purposes intended by WAM!NET; and
WAM!NET will be relying solely upon its own inspections, investigations and
due
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diligence review of the Property and not upon any representations,
warranties or statements made or information provided by Seller, except for
those representations and warranties expressly set forth in Section 9
above. WAM!NET further acknowledges and agrees that it is acquiring the
Property subject to all existing laws, ordinances, rules and regulations.
(c) The foregoing representations and warranties shall survive
the Closing until the first anniversary thereof. If written notice of a
claim has been given prior the expiration of the applicable representations
and warranties, the relevant representations and warranties shall survive
as to such claim until the claim has been finally resolved. WAM!NET will
indemnify Seller against, and will hold Seller harmless from, any expenses
or damages, including reasonable attorneys' fees, that Seller incurs
because of the breach of any of the above representations and warranties.
In no event, however, shall WAM!NET have any liability to Seller for
incidental, consequential, special or punitive damages arising from the
breach of any such representations and warranties.
10. LEASE-BACK TO SELLER. At Closing, WAM!NET and Seller shall
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execute the Lease Agreement (the "LEASE AGREEMENT") attached hereto as Exhibit
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10 pursuant to which WAM!NET shall lease-back certain portions of the Property
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to Seller. The term of the Lease Agreement shall commence on the Closing Date
and shall terminate as provided therein.
11. NON-SOLICITATION. WAM!NET and Seller agree that, except upon
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the prior written consent of the other party, each party shall be prohibited
from directly soliciting the employees of the other party during the term of the
Lease Agreement.
12. MANAGEMENT AGREEMENT. At Closing, WAM!NET and Seller shall
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execute the Management Agreement (the "MANAGEMENT AGREEMENT") attached hereto as
Exhibit 12 pursuant to which Seller shall continue to manage the operations of
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the Real Property pursuant to the terms and conditions therein.
13. ACCESS RIGHTS; EASEMENTS.
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(a) The Survey discloses the existence of a gravel road running
from Lot 1, Block 1 of the Real Property across Outlot D (the "GRAVEL
ROAD") to Lone Oak Road. Seller hereby grants to WAM!NET (to be effective
on the Closing Date) a license to use the Gravel Road for emergency access
between the Real Property and Lone Oak Road (the "LICENSE"). If access
from the Real Property to Lone Oak Road is required either for emergency
use or as a condition to further development of the Real Property, WAM!NET
shall use reasonable efforts to obtain the approvals necessary to locate a
permanent access on the Real Property and not on
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Outlot D. If the City of Eagan, Dakota County or other governing
authorities limit access to a single location on Lone Oak Road, Seller and
WAM!NET agree to share an access road and establish the same by easement
agreement. The foregoing license shall automatically terminate upon the
parties establishing a permanent, joint access route on and over a limited
portion of Outlot D.
(b) The parties agree to negotiate in good faith with regard to
any easements that may need to be granted for access, utility and/or
drainage purposes with regard to existing utilities and/or drainage
benefiting or burdening the Real Property and such other real property
owned by Seller, including without limitation a permanent, joint access
route on and over Outlot D and Seller's access to Outlot A, Cray Second
Addition over the existing private road located on Lot 1, Block 1. The
parties will use reasonable efforts to identify any such easements within
sixty (60) days following the closing. In no event shall either party be
required to grant an easement which would unreasonably interfere with its
current or proposed use or development of such party's respective property.
The provisions of this Section 13 shall survive the closing of the
transactions contemplated in this Agreement, and shall not merge into the
deed delivered to WAM!NET pursuant to the terms of this Agreement.
(c) The Survey discloses the existence of a gravel road running
from Lot 1, Block 1 to Seller's adjoining property to the East of the Real
Property. Seller and WAM!NET hereby acknowledge that the existence of such
gravel road does not give rise to any easement rights to the Real Property
or Seller's adjoining property upon which such gravel road is located.
14. BROKER'S COMMISSION. Seller represents to WAM!NET that it has
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not engaged a broker in connection with the transactions contemplated by this
Agreement. WAM!NET represents to Seller that it has not engaged a broker in
connection with the sale and purchase of the Property pursuant to this
Agreement. Seller shall indemnify and hold WAM!NET harmless from and against
any and all liability to which WAM!NET may be subjected by any broker's,
finder's, or similar fee with respect to the transactions contemplated by this
Agreement to the extent such fee is attributable to any action undertaken by or
on behalf of Seller or any affiliate of Seller. WAM!NET shall indemnify and
hold Seller harmless from and against any and all liability to which Seller may
be subjected by reason of any broker's, finder's, or similar fee with respect to
the transactions contemplated by this Agreement to the extent such fee is
attributable to any action undertaken by or on behalf of WAM!NET.
15. ASSIGNMENT. Prior to Closing, neither Seller nor WAM!NET may
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transfer or assign its rights under this Agreement
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for any purpose, without the prior written consent of the other party. After
Closing, either party may assign any remaining rights and obligations under this
Agreement to a third party provided such assignee assumes in writing the
remaining obligations to be performed under this Agreement. In no event shall
the assignment or other transfer of this Agreement by either party relieve such
party of its obligations and liabilities under this Agreement.
16. SURVIVAL. Except as provided herein, all of the covenants,
--------
representations and warranties made in this Agreement, or in any schedule,
exhibit, certificate, or document delivered in connection with this Agreement
will survive and be enforceable after the Closing.
17. NOTICES. Any notice required or permitted to be given under any
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provision of this Agreement shall be in writing and shall be deemed to have been
given in accordance with this Agreement, if it is mailed, by United States
certified mail, return receipt requested, postage prepaid; or if deposited cost
paid with a nationally recognized, reputable overnight courier, properly
addressed as follows:
If to Seller: See Address(s) set forth in the Stock
Purchase Agreement
with a copy to: Zamansky Professional Association
3901 IDS Tower
80 South Eighth Street
Minneapolis MN 55402
Attn: Ronald A. Zamansky
If to WAM!NET: See Address(s) set forth in the Stock
Purchase Agreement
with a copy to: Larkin, Hoffman, Daly & Lindgren, Ltd.
1500 Norwest Financial Center
7900 Xerxes Avenue South
Minneapolis, MN 55431
Attention: Thomas P. Stoltman
Notice shall be effective, and the time for response to any notice by
the other party shall commence to run, three (3) business days after any such
mailing or deposit. Either Seller or WAM!NET may change its address for the
service of notice by giving notice of such change to the other party, in any
manner above specified, ten (10) days prior to the effective date of such
change.
18. CAPTIONS; EXHIBITS. The section and paragraph headings or
------------------
captions appearing in this Agreement are for
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convenience only, are not a part of this Agreement, and are not to be considered
in interpreting this Agreement. All schedules, exhibits, addenda or attachments
referred to herein are hereby incorporated in and constitute a part of this
Agreement.
19. ENTIRE AGREEMENT; MODIFICATION. This written Agreement (which is
------------------------------
an exhibit to the Stock Purchase Agreement) and the Stock Purchase Agreement
constitute the complete agreement between Seller and WAM!NET and supersedes any
prior oral or written agreements between them regarding the Property. There are
no oral agreements that change this Agreement, and no amendment of any of its
terms will be effective unless in writing and executed by both Seller and
WAM!NET.
20. BINDING EFFECT. This Agreement binds and benefits Seller and
--------------
WAM!NET and their respective successors and assigns.
21. CONTROLLING LAW. This Agreement has been made under, and will be
---------------
interpreted and controlled by, the laws of the State of Minnesota.
22. WAIVER. No waiver of the provisions of this Agreement shall be
------
effective unless in writing, executed by the party to be charged with such
waiver. No waiver shall be deemed a continuing waiver or waiver in respect of
any subsequent breach or default, either of similar or different nature, unless
expressly stated in writing.
23. COUNTERPARTS. This Agreement may be executed in any number of
------------
counterparts and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
Agreement.
24. FACSIMILE SIGNATURES. This Agreement may be executed with
--------------------
signatures transmitted by facsimile and shall constitute a binding agreement
with such signatures. Nonetheless, any party providing facsimile signatures
shall provide the other party with the original signatures within five (5)
business days after providing the facsimile signature page(s).
25. SEVERABILITY. If any provision of this Agreement is invalid or
------------
unenforceable, such provision shall be deemed to be modified to be within the
limits of enforceability or validity, if feasible; however, if the offending
provision cannot be so modified, it shall be stricken and all other provisions
of this Agreement in all other respects shall remain valid and enforceable.
26. LIMITATION OF LIABILITY. Upon Closing, WAM!NET shall neither
-----------------------
assume nor undertake to pay, satisfy or discharge any liabilities, obligations
or commitments of any Seller in connection with any service, maintenance or
similar agreements executed in connection with the operation of the Property.
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27. REMEDIES. Time is of the essence of this Agreement. If either
--------
party fails to perform any of its obligations under this Agreement, the other
party may exercise any remedies that may be available to such party in law or in
equity. Except as otherwise specified elsewhere herein, all rights, powers or
remedies afforded the parties hereunder, under the Stock Purchase Agreement, or
at law or in equity shall be cumulative and the exercise of one shall not bar
exercise of another.
28. FURTHER ASSURANCES. At any time and from time to time after the
------------------
Closing Date, each party shall, upon request of another party, execute,
acknowledge and deliver all such further and other assurances and documents, and
will take such action consistent with the terms of this Agreement as may be
reasonably requested to carry out the transactions contemplated herein, and to
permit each party to enjoy its rights and benefits hereunder.
Seller and WAM!NET have executed this Agreement as of the date set
forth on page 1 hereof.
WAM!NET: SELLER:
WAM!NET INC. SILICON GRAPHICS, INC.
By:/s/ Allen L. Witters By:/s/ William M. Kelly
- - ---------------------------- ---------------------------
- - ---------------------------- ---------------------------
(Print Name) Allen L. Witters (Print Name) William M. Kelly
Its: Chief Technology Officer Its: Senior Vice President
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