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Exhibit 10.33
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PURCHASE AGREEMENT
(PHASE II - IMPROVEMENTS)
BETWEEN
BNP LEASING CORPORATION
("BNPLC")
AND
NETWORK APPLIANCE, INC.
("NAI")
MAY 3, 1999
(SUNNYVALE, CALIFORNIA)
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TABLE OF CONTENTS
Page
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1 NAI'S OPTIONS AND OBLIGATIONS ON THE DESIGNATED SALE DATE 1
(A) Right to Purchase; Right and Obligation to Remarket 1
(B) Determinations Concerning Price 3
(C) Designation of the Purchaser 4
(D) Effect of the Purchase Option and NAI's Initial Remarketing Rights and
Obligations on Subsequent Title Encumbrances 4
(E) Security for the Purchase Option and NAI's Initial Remarketing Rights and
Obligations 5
(F) Delivery of Books and Records If BNPLC Retains the Property 5
2 NAI'S RIGHTS AND OPTIONS AFTER THE DESIGNATED SALE DATE 5
(A) NAI's Extended Right to Remarket 5
(B) Definition of Minimum Extended Remarketing Price 6
(C) BNPLC's Right to Sell 6
(D) NAI's Right to Excess Sales Proceeds 7
(E) Permitted Transfers During NAI's Extended Remarketing Period 7
3 TERMS OF CONVEYANCE UPON PURCHASE 7
4 SURVIVAL AND TERMINATION OF THE RIGHTS AND OBLIGATIONS OF NAI AND BNPLC 8
(A) Status of this Agreement Generally 8
(B) Election by NAI to Terminate the Purchase Option and NAI's Initial Remarketing
Rights and Obligations Prior to the Base Rent Commencement Date 8
(C) Election by BNPLC to Terminate the Purchase Option and NAI's Initial
Remarketing Rights and Obligations 9
(D) Automatic Termination of NAI's Rights 9
(E) Termination of NAI's Extended Remarketing Rights to Permit a Sale by BNPLC 10
(F) Payment Only to BNPLC 10
(G) Remedies Under the Other Operative Documents 10
(H) Occupancy by NAI Prior to Closing of a Sale 10
5 SECURITY FOR NAI'S OBLIGATIONS; RETURN OF FUNDS 10
6 CERTAIN REMEDIES CUMULATIVE 11
7 ATTORNEYS' FEES AND LEGAL EXPENSES 11
8 ESTOPPEL CERTIFICATE 11
9 SUCCESSORS AND ASSIGNS 11
Exhibits and Schedules
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Exhibit A Legal Description
Exhibit B Grant Deed Form Requirements
Exhibit C Xxxx of Sale and Assignment
Exhibit D Acknowledgment and Disclaimer
Exhibit E Secretary's Certificate
Exhibit F Certificate Concerning Tax Withholding
Exhibit K Notice by NAI of Election to Terminate
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PURCHASE AGREEMENT
(PHASE II - IMPROVEMENTS)
This PURCHASE AGREEMENT (PHASE II - IMPROVEMENTS) (this "AGREEMENT"), by
and between BNP LEASING CORPORATION, a Delaware corporation ("BNPLC"), and
NETWORK APPLIANCE, INC., a California corporation ("NAI"), is made and dated as
of May 3, 1999, the Effective Date. ("EFFECTIVE DATE" and other capitalized
terms used and not otherwise defined in this Agreement are intended to have the
meanings assigned to them in the Common Definitions and Provisions Agreement
(Phase I - Improvements) executed by BNPLC and NAI contemporaneously with this
Agreement. By this reference, the Common Definitions and Provisions Agreement
(Phase II - Improvements) is incorporated into and made a part of this Agreement
for all purposes.)
RECITALS
Pursuant to the Existing Contract, which covers the Land described in
Exhibit, BNPLC is acquiring the Land and any appurtenances thereto and the
existing Improvements thereon from Seller contemporaneously with the execution
of this Agreement. Pursuant to the Lease Agreement (Phase II - Improvements)
executed by BNPLC and NAI contemporaneously with this Agreement (the
"IMPROVEMENTS LEASE"), BNPLC is leasing the Improvements on the Land to NAI and
agreeing to provide funding for the construction and completion of Improvements,
all of which will be owned by BNPLC. (All of BNPLC's interests, including those
created by the documents delivered at the closing under the Existing Contract,
in the Improvements and in all other real and personal property from time to
time covered by the Improvements Lease and included within the "Property" as
defined therein are hereinafter collectively referred to as the "PROPERTY". The
Property does not include the Land itself, it being understood that the Other
Purchase Agreement constitutes a separate agreement providing for the possible
sale of the Land and the appurtenances thereto, and only the Land and the
appurtenances thereto, from BNPLC to NAI or a third party designated by NAI.)
NAI and BNPLC have reached agreement upon the terms and conditions upon
which NAI will purchase or arrange for the purchase of the Property, and by this
Agreement they desire to evidence such agreement.
AGREEMENTS
1 NAI'S OPTIONS AND OBLIGATIONS ON THE DESIGNATED SALE DATE.
(A) Right to Purchase; Right and Obligation to Remarket . Whether or not an
Event of Default shall have occurred and be continuing or the
Improvements Lease shall have been terminated, but subject to Paragraph
below:
(1) NAI shall have the right (the "PURCHASE OPTION") to purchase or
cause an Affiliate of NAI to purchase the Property and BNPLC's interest
in Escrowed Proceeds, if any, on the Designated Sale Date for a cash
price equal to the Break Even Price (as defined below).
(2) If neither NAI nor an Affiliate of NAI purchases the Property
and BNPLC's interest in any Escrowed Proceeds on the Designated Sale
Date as provided in the preceding subparagraph 1(A)(1), then NAI shall
have the following rights and obligations (collectively, "NAI'S INITIAL
REMARKETING RIGHTS AND OBLIGATIONS"):
(a) First, NAI shall have the right (but not the obligation)
to cause an Applicable Purchaser who is not an Affiliate of NAI
to purchase the Property and BNPLC's interest in any Escrowed
Proceeds on the Designated Sale Date for a cash purchase price
(the "THIRD PARTY PRICE") determined as provided below. If,
however, the Break Even Price exceeds the sum of any Third Party
Price tendered or to be tendered to BNPLC by an
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Applicable Purchaser and any Supplemental Payment paid by NAI as
described below, then BNPLC may affirmatively elect to decline
such tender from the Applicable Purchaser and to keep the
Property and any Escrowed Proceeds rather than sell to the
Applicable Purchaser pursuant to this subparagraph (a "VOLUNTARY
RETENTION OF THE PROPERTY").
(b) Second, if the Third Party Price actually paid by an
Applicable Purchaser to BNPLC on the Designated Sale Date
exceeds the Break Even Price, NAI shall be entitled to such
excess, subject, however, to BNPLC's right to offset against
such excess any and all sums that are then due from NAI to BNPLC
under the other Operative Documents.
(c) Third, if for any reason whatsoever (including a
Voluntary Retention of the Property or a decision by NAI not to
exercise its right to purchase or cause an Applicable Purchaser
to purchase from BNPLC as described above) neither NAI nor an
Applicable Purchaser pays a net cash price to BNPLC on the
Designated Sale Date equal to or in excess of the Break Even
Price in connection with a sale of the Property and BNPLC's
interest in any Escrowed Proceeds pursuant to this Agreement,
then NAI shall have the obligation to pay to BNPLC on the
Designated Sale Date a supplemental payment (the "SUPPLEMENTAL
PAYMENT") equal to the lesser of (1) the amount by which the
Break Even Price exceeds such net cash price (if any) actually
received by BNPLC on the Designated Sale Date (such excess being
hereinafter called a "DEFICIENCY") or (2) the Maximum
Remarketing Obligation. As used herein, the "MAXIMUM REMARKETING
OBLIGATION" means a dollar amount determined in accordance with
the following provisions:
1) The "MAXIMUM REMARKETING OBLIGATION" will equal
the product of (i) Stipulated Loss Value on the
Designated Sale Date, times (ii) 100% minus the Residual
Risk Percentage, provided that both of the following
conditions are satisfied:
(x) NAI shall not have elected to
accelerate the Designated Sale Date as provided
in clause (2) of the definition of Designated
Sale Date in the Common Definitions and
Provisions Agreement (Phase II - Improvements).
(y) No Event of Default, other than an
Issue 97-1 Non-performance-related Subjective
Event of Default, shall occur on or be
continuing on the Designated Sale Date.
2) If either of the conditions listed in
subparagraph 1) preceding are not satisfied, the
"MAXIMUM REMARKETING OBLIGATION" will equal the Break
Even Price.
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If any Supplemental Payment or other amount payable to BNPLC pursuant to this
subparagraph is not actually paid to BNPLC on the Designated Sale Date, NAI
shall pay interest on the past due amount computed at the Default Rate from the
Designated Sale Date.
(B) Determinations Concerning Price .
(1) Determination of the Break Even Price. As used herein, "BREAK
EVEN PRICE" means an amount equal, on the Designated Sale Date, to
Stipulated Loss Value, plus all out-of-pocket costs and expenses
(including appraisal costs, withholding taxes (if any) not constituting
Excluded Taxes, and Attorneys' Fees) incurred by BNPLC in connection
with any sale of BNPLC's interests in the Property under this Agreement
or in connection with collecting payments due hereunder, and plus an
amount equal to the Balance of Unpaid Construction-Period Indemnity
Payments, but less the aggregate amounts (if any) of Direct Payments to
Participants and Deposit Taker Losses (other than Excluded Deposit Taker
Losses). As used herein, the "BALANCE OF UNPAID CONSTRUCTION-PERIOD
INDEMNITY PAYMENTS" means an amount equal to the sum of
Construction-Period Indemnity Payments, if any, that NAI declined to pay
pursuant to subparagraph 5(d)(ii) of the Improvements Lease, plus
interest accruing at the Default Rate, compounded annually, on each such
payment from the date such payment would have become due but for NAI's
right to decline to pay it as described in subparagraph 5(d)(ii) of the
Improvements Lease. If, however, Losses for which NAI has so declined to
pay any Construction-Period Indemnity Payment consist of claims against
BNPLC or another Interested Party that have not been liquidated prior to
the Designated Sale Date (and, thus, such Losses have yet to be fixed in
amount as of the Designated Sale Date), then NAI may elect to exclude
any Construction-Period Indemnity Payment attributable to such Losses by
providing to BNPLC, for the benefit of BNPLC and other Interested
Parties, a written agreement to indemnify and defend BNPLC and other
Interested Parties against such Losses. To be effective hereunder for
purposes of reducing the Balance of Unpaid Construction-Period Indemnity
Payments (and, thus, the Break Even Price), any such written indemnity
must be fully executed and delivered by NAI on or prior to the
Designated Sale Date, must include provisions comparable to
subparagraphs 5(c)(ii), (iii), (iv) and (v) of the Improvements Lease
and otherwise must be in form and substance satisfactory to BNPLC.
(2) Determination of Third Party Price. The Third Party Price
required of any Applicable Purchaser purchasing from BNPLC under
subparagraph will be determined as follows:
(a) NAI may give a notice (a "REMARKETING NOTICE") to BNPLC
and to each of the Participants no earlier than one hundred
twenty days before the Designated Sale Date and no later than
ninety days before the Designated Sale Date, specifying an
amount as the Third Party Price that NAI believes in good faith
to constitute reasonably equivalent value for the Property and
any Escrowed Proceeds. Once given, a Remarketing Notice shall
not be rescinded or modified without BNPLC's written consent.
(b) If BNPLC believes in good faith that the Third Party
Price specified by NAI in a Remarketing Notice does not
constitute reasonably equivalent value for the Property and any
Escrowed Proceeds, BNPLC may at any time before sixty days prior
to the Designated Sale Date respond to the Remarketing Notice
with a notice back to NAI, objecting to the Third Party Price so
specified by NAI. If BNPLC receives a Remarketing Notice, yet
does not respond with an objection as provided in the preceding
sentence, the Third Party Price suggested by NAI in the
Remarketing Notice will be the Third Party Price for purposes of
this Agreement. If, however, BNPLC does respond with an
objection as provided in this subparagraph, and if NAI and BNPLC
do not otherwise agree in writing upon a Third Party Price, then
the Third Party Price will be the lesser of (I) fair market
value of the Property, plus the amount of any Escrowed Proceeds,
as determined by a professional independent appraiser
satisfactory to BNPLC, or (II) the Break Even Price.
(c) If for any reason, including an acceleration of the
Designated Sale Date as provided in the definition thereof in
the Common Definitions and Provisions Agreement (Phase II -
Improvements), NAI does not deliver a Remarketing Notice to
BNPLC within the time period specified above, then the Third
Party Price will be an amount determined in good faith by BNPLC
as constituting reasonably equivalent value for the Property and
any Escrowed Proceeds, but in no event more than the Break Even
Price.
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If any payment to BNPLC by an Applicable Purchaser hereunder is held to
constitute a preference or a voidable transfer under Applicable Law, or
must for any other reason be refunded by BNPLC to the Applicable
Purchaser or to another Person, and if such payment to BNPLC reduced or
had the effect of reducing a Supplemental Payment or increased or had
the effect of increasing any excess sale proceeds paid to NAI pursuant
to subparagraph 1(A)(2)(b) or pursuant to subparagraph 2(b), then NAI
shall pay to BNPLC upon demand an amount equal to the reduction of the
Supplemental Payment or to the increase of the excess sale proceeds paid
to NAI, as applicable, and this Agreement shall continue to be effective
or shall be reinstated as necessary to permit BNPLC to enforce its right
to collect such amount from NAI.
(C) Designation of the Purchaser. To give BNPLC the opportunity before the
Designated Sale Date to prepare the deed and other documents that BNPLC must
tender pursuant to Paragraph (collectively, the "SALE CLOSING DOCUMENTS"), NAI
must, by a notice to BNPLC given at least seven days prior to the Designated
Sale Date, specify irrevocably, unequivocally and with particularity the party
who will purchase the Property in order to satisfy the obligations of NAI set
forth in subparagraph 1(A). If for any reason NAI fails to so specify a party
who will in accordance with the terms and conditions set forth herein purchase
the Property (be it NAI itself, an Affiliate of NAI or another Applicable
Purchaser), BNPLC shall be entitled to postpone the tender of the Sale Closing
Documents until a date after the Designated Sale Date and not more than twenty
days after NAI finally does so specify a party, but such postponement will not
relieve or postpone the obligation of NAI to make a Supplemental Payment on the
Designated Sale Date as provided in Paragraph 1(A)(2)(c).
(D) Effect of the Purchase Option and NAI's Initial Remarketing Rights and
Obligations on Subsequent Title Encumbrances. Any conveyance of the Property to
NAI or any Applicable Purchaser pursuant to this Paragraph 1(A) shall cut off
and terminate any interest in the Improvements or other Property claimed by,
through or under BNPLC, including any interest claimed by the Participants and
including any Liens Removable by BNPLC (such as, but not limited to, any
judgment liens established against the Property because of a judgment rendered
against BNPLC and any leasehold or other interests conveyed by BNPLC in the
ordinary course of BNPLC's business), but not including personal obligations of
NAI to BNPLC under the Improvements Lease or other Operative Documents
(including obligations arising under the indemnities therein). Anyone accepting
or taking any interest in the Property by or through BNPLC after the date of
this Agreement shall acquire such interest subject to the Purchase Option and
NAI's Initial Remarketing Rights and Obligations. Further, NAI and any
Applicable Purchaser shall be entitled to pay any payment required by this
Agreement for the purchase of the Property directly to BNPLC notwithstanding any
prior conveyance or assignment by BNPLC, voluntary or otherwise, of any right or
interest in this Agreement or the Property, and neither NAI nor any Applicable
Purchaser shall be responsible for the proper distribution or application of any
such payments by BNPLC; and any such payment to BNPLC shall discharge the
obligation of NAI to cause such payment to all Persons claiming an interest in
such payment. Contemporaneously with the execution of this Agreement, the
parties shall record a memorandum of this Agreement for purposes of effecting
constructive notice to all Persons of NAI's rights under this Agreement,
including its rights under this subparagraph.
(E) Security for the Purchase Option and NAI's Initial Remarketing Rights
and Obligations. To secure BNPLC's obligation to sell the Property pursuant to
this Paragraph 1(A) and to pay any damages to NAI caused by a breach of such
obligations, including any such breach caused by a rejection or termination of
this Agreement in any bankruptcy or insolvency proceeding instituted by or
against BNPLC, as debtor, BNPLC does hereby grant to NAI a lien and security
interest against all rights, title and interests of BNPLC from time to time in
and to the Improvements and other Property. NAI may enforce such lien and
security interest judicially after any such breach by BNPLC, but not otherwise.
Contemporaneously with the execution of this Agreement, NAI and BNPLC will
execute a memorandum of this Agreement which is in recordable form and which
specifically references the lien granted in this subparagraph, and NAI shall be
entitled to record such memorandum at any time prior to the Designated Sale
Date.
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(F) Delivery of Books and Records If BNPLC Retains the Property . Unless NAI
or its Affiliate or another Applicable Purchaser purchases the Property pursuant
to Paragraph 1(A), promptly after the Designated Sale Date NAI shall deliver to
BNPLC copies of all plans and specifications for the Property prepared in
connection with the construction contemplated by the Construction Management
Agreement and the Improvements Lease, together with all other books and records
of NAI which will be necessary or useful to any future owner's or occupant's use
of the Property in the manner permitted by the Improvements Lease.
2 NAI'S RIGHTS AND OPTIONS AFTER THE DESIGNATED SALE DATE.
(A) NAI's Extended Right to Remarket . During the two years following the
Designated Sale Date ("NAI'S EXTENDED REMARKETING PERIOD"), NAI shall have the
right ("NAI'S EXTENDED REMARKETING RIGHT") to cause an Applicable Purchaser who
is not an Affiliate of NAI to purchase the Property for a cash purchase price
not below the lesser of (I) the Minimum Extended Remarketing Price (as defined
below), or (II) if applicable, the Third Party Target Price (as defined below)
specified in any Third Party Sale Notice (as defined below) given by BNPLC
pursuant to subparagraph 2(C)(2) within the ninety days prior to the date (the
"FINAL SALE DATE") upon which BNPLC receives such purchase price from the
Applicable Purchaser. NAI's Extended Remarketing Right shall, however, be
subject to all of the following conditions:
(1) The Property and BNPLC's interest in Escrowed Proceeds, if any,
shall not have been sold on the Designated Sale Date as provided in
Paragraph 1.
(2) No Voluntary Retention of the Property shall have occurred as
described in subparagraph 1(a)(2)(a).
(3) NAI's Extended Remarketing Right shall not have been terminated
pursuant to subparagraph 4(D) below because of NAI's failure to make any
Supplemental Payment required on the Designated Sale Date.
(4) NAI's Extended Remarketing Right shall not have been terminated
by BNPLC pursuant to subparagraph 4(E) below to facilitate BNPLC's sale
of the Property to a third party in accordance with subparagraph 2(C).
(5) At least thirty days prior to the Final Sale Date, NAI shall
have notified BNPLC of (x) the date proposed by NAI as the Final Sale
Date (which must be a Business Day), (y) the full legal name of the
Applicable Purchaser and such other information as will be required to
prepare the Sale Closing Documents, and (z) the amount of the purchase
price that the Applicable Purchaser will pay (consistent with the
minimum required pursuant to the other provisions of this subparagraph
2(A)) for the Property.
(B) Definition of Minimum Extended Remarketing Price . As used herein,
"MINIMUM EXTENDED REMARKETING PRICE" means an amount equal to the sum of the
following:
(1) the amount by which the Break Even Price computed on the
Designated Sale Date exceeds any Supplemental Payment actually paid to
BNPLC on the Designated Sale Date, together with interest on such excess
computed at the Default Rate from the period commencing on the
Designated Sale Date and ending on the Final Sale Date, plus
(2) all out-of-pocket costs and expenses (including withholding
taxes [if any], other than Excluded Taxes, and Attorneys' Fees) incurred
by BNPLC in connection with the sale to the Applicable Purchaser, to the
extent not already included in the computation of Break Even Price, and
plus
(3) the sum of all Impositions, insurance premiums and other Losses
of every kind suffered or incurred by BNPLC or any other Interested
Party with respect to the ownership, operation or maintenance of the
Property on or after the Designated Sale Date (except to the extent
already reimbursed by any lessee of the Property after the Designated
Sale Date), together with interest on such Impositions, insurance
premiums and other Losses computed at the Default Rate from the date
paid or incurred to the Final Sale Date.
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If, however, Losses described in the preceding clause (3) consist of claims
against BNPLC or another Interested Party that have not been liquidated prior to
the Final Sale Date (and, thus, such Losses have yet to be fixed in amount as of
the Final Sale Date), then NAI may elect to exclude any such Losses from the
computation of the Minimum Extended Remarketing Price by providing to BNPLC, for
the benefit of BNPLC and other Interested Parties, a written agreement to
indemnify and defend BNPLC and other Interested Parties against such Losses. To
be effective hereunder for purposes of reducing the Minimum Extended Remarketing
Price (and, thus, the Break Even Price), any such written indemnity must be
fully executed and delivered by NAI on or prior to the Final Sale Date, must
include provisions comparable to subparagraphs 5(c)(ii), (iii), (iv) and (v) of
the Improvements Lease and otherwise must be in form and substance satisfactory
to BNPLC.
(C) BNPLC's Right to Sell . After the Designated Sale Date, if the Property
has not already been sold by BNPLC pursuant to Paragraph 1 or this Paragraph 2,
BNPLC shall have the right to sell the Property or offer the Property for sale
to any third party on any terms believed to be appropriate by BNPLC in its sole
good faith business judgment; provided, however, that so long as the conditions
to NAI's Extended Remarketing Rights specified in subparagraph 2(A) continue to
be satisfied:
(1) BNPLC shall not sell the Property to an Affiliate of BNPLC on
terms less favorable than those which BNPLC would require from a
prospective purchaser not an Affiliate of BNPLC;
(2) If BNPLC receives or desires to make a written proposal (whether
in the form of a "letter of intent" or other nonbinding expression of
interest or in the form of a more definitive purchase and sale
agreement) for a sale of the Property to a prospective purchaser (a
"THIRD PARTY SALE PROPOSAL"), and if on the basis of such Third Party
Sale Proposal BNPLC expects to enter into or to pursue negotiations for
a definitive purchase and sale agreement with the prospective purchaser,
then prior to executing any such definitive agreement, BNPLC shall
submit the Third Party Sale Proposal to NAI with a notice (the "THIRD
PARTY SALE NOTICE") explaining that (A) BNPLC is then prepared to accept
a price not below an amount specified in such Third Party Sale Notice
(the "THIRD PARTY TARGET PRICE") if BNPLC and the prospective purchaser
reach agreement on other terms and conditions to be incorporated into a
definitive purchase and sale agreement, and (B) NAI's Extended
Remarketing Right may be terminated pursuant to subparagraph 4(E) of
this Agreement unless NAI causes an Applicable Purchaser to consummate a
purchase of the Property pursuant to this Paragraph 2 within ninety days
after the date of such Third Party Sale Notice.
(D) NAI's Right to Excess Sales Proceeds . If the cash price actually paid
by any third party purchasing the Property from BNPLC during NAI's Extended
Remarketing Period, including any price paid by an Applicable Purchaser
purchasing from BNPLC pursuant to this Paragraph 2, exceeds the Minimum Extended
Remarketing Price, then NAI shall be entitled to the excess; provided, that
BNPLC may offset and retain from the excess any and all sums that are then due
and unpaid from NAI to BNPLC under any of the Operative Documents.
(E) Permitted Transfers During NAI's Extended Remarketing Period . Any
"Permitted Transfer" described in clause (6) of the definition thereof in the
Common Definitions and Provisions Agreement (Phase II - Improvements) to an
Affiliate of BNPLC or that covers BNPLC's entire interest in the Improvements
will be subject to NAI's Extended Remarketing Right if, at the time of the
Permitted Transfer, NAI's Extended Remarketing Right has not expired or been
terminated as provided herein. Any other Permitted Transfer described in clause
(6) of the definition thereof, however, will not be subject to NAI's Extended
Remarketing Right. Thus, for example, BNPLC's conveyance of a utility easement
or space lease more than thirty days after the Designated Sale Date to a Person
not an Affiliate of BNPLC shall not be subject to NAI's Extended Remarketing
Right, though following the conveyance of the lesser estate, NAI's Extended
Remarketing Right may continue to apply to BNPLC's remaining interest in the
Improvements and any Personal Property.
3 TERMS OF CONVEYANCE UPON PURCHASE. As necessary to consummate any sale
of the Property to NAI or an Applicable Purchaser pursuant to this Agreement,
BNPLC must, subject to any postponement permitted by subparagraph 1(C), promptly
after the tender of the purchase price and any other payments to BNPLC required
pursuant to Paragraph 1 or Paragraph 2, as applicable, convey all of BNPLC's
right, title and interest in the Improvements and other Property to NAI or the
Applicable Purchaser, as the case may be, by BNPLC's execution, acknowledgment
(where appropriate) and delivery of the Sale Closing Documents. Such conveyance
by BNPLC will be subject only to the Permitted Encumbrances and any other
encumbrances that do not constitute Liens Removable by BNPLC. However, such
conveyance shall not include the rights of
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BNPLC or other Interested Parties under the indemnities provided in the
Operative Documents, including rights to any payments then due from NAI under
the indemnities or that may become due thereafter because of any expense or
liability incurred by BNPLC or another Interested Party resulting in whole or in
part from events or circumstances occurring or alleged to have occurred before
such conveyance. All costs, both foreseen and unforeseen, of any purchase by NAI
or an Applicable Purchaser hereunder shall be the responsibility of the
purchaser. The Sale Closing Documents used to accomplish such conveyance shall
consist of the following: (1) a Corporation Grant Deed in the form attached as
Exhibit B-1 or Exhibit B-2 or Exhibit B-3, as required by Exhibit B, (2) a Xxxx
of Sale and Assignment in the form attached as Exhibit C, (3) an Acknowledgment
of Disclaimer of Representations and Warranties, in the form attached as
Exhibit D, which NAI or the Applicable Purchaser must execute and return to
BNPLC, (4) a Secretary's Certificate in the form attached as Exhibit E, and (5)
a certificate concerning tax withholding in the form attached as Exhibit F. If
for any reason BNPLC fails to tender the Sale Closing Documents as required by
this Xxxxxxxxx 0, XXXXX may cure such refusal at any time before thirty days
after receipt of a demand for such cure from NAI.
4 SURVIVAL AND TERMINATION OF THE RIGHTS AND OBLIGATIONS OF NAI AND BNPLC.
(A) Status of this Agreement Generally . Except as expressly provided
herein, this Agreement shall not terminate; nor shall NAI have any right to
terminate this Agreement; nor shall NAI be entitled to any reduction of the
Break Even Price, any Deficiency, the Maximum Remarketing Obligation, any
Supplemental Payment or the Minimum Extended Remarketing Price hereunder; nor
shall the obligations of NAI to BNPLC under Paragraph be affected, by reason of
(i) any damage to or the destruction of all or any part of the Property from
whatever cause (though it is understood that NAI will receive any remaining
Escrowed Proceeds yet to be applied as provided in the Improvements Lease that
may result from such damage if NAI purchases the Property and the Escrowed
Proceeds as herein provided), (ii) the taking of or damage to the Property or
any portion thereof by eminent domain or otherwise for any reason (though it is
understood that NAI will receive any remaining Escrowed Proceeds yet to be
applied as provided in the Improvements Lease that may result from such taking
or damage if NAI purchases the Property and the Escrowed Proceeds as herein
provided), (iii) the prohibition, limitation or restriction of NAI's use of all
or any portion of the Property or any interference with such use by governmental
action or otherwise, (iv) any eviction of NAI or any party claiming under NAI by
paramount title or otherwise, (v) NAI's prior acquisition or ownership of any
interest in the Property, (vi) any default on the part of BNPLC under this
Agreement, the Improvements Lease or any other agreement to which BNPLC is a
party, or (vii) any other cause, whether similar or dissimilar to the foregoing,
any existing or future law to the contrary notwithstanding. It is the intention
of the parties hereto that the obligations of NAI to make payment to BNPLC
hereunder shall be separate and independent covenants and agreements from
BNPLC's obligations under this Agreement or any other agreement between BNPLC
and NAI; provided, however, that nothing in this subparagraph shall excuse BNPLC
from its obligation to tender the Sale Closing Documents in substantially the
form attached hereto as exhibits when required by Paragraph . Further, nothing
in this subparagraph shall be construed as a waiver by NAI of any right NAI may
have at law or in equity to the following remedies, whether because of BNPLC's
failure to remove a Lien Removable by BNPLC or because of any other default by
BNPLC under this Agreement: (i) the recovery of monetary damages, (ii)
injunctive relief in case of the violation, or attempted or threatened
violation, by BNPLC of any of the express covenants, agreements, conditions or
provisions of this Agreement which are binding upon BNPLC, or (iii) a decree
compelling performance by BNPLC of any of the express covenants, agreements,
conditions or provisions of this Agreement which are binding upon BNPLC.
(B) Election by NAI to Terminate the Purchase Option and NAI's Initial
Remarketing Rights and Obligations Prior to the Base Rent Commencement Date . At
any time prior to the Base Rent Commencement Date, NAI may elect to terminate
both the Purchase Option and NAI's Initial Remarketing Rights and Obligations,
subject to the following conditions:
(1) To be effective, any such election to terminate must be made
prior to the Base Rent Commencement Date and must be made after (x) NAI
shall have given Notice of NAI's Election to Terminate pursuant to
Paragraph 5(D) of the Construction Management Agreement, (y) BNPLC shall
have given any FOCB Notice as provided in Paragraph 5(E) of the
Construction Management Agreement, or (z) BNPLC shall have given notice
of its election to accelerate the Designated Sale Date when an Event of
Default has occurred and is continuing as provided in clause (5) of the
definition Designated Sale Date in the Common Definitions and Provisions
Agreement (Phase II - Improvements).
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(2) To be effective, any such election to terminate must be made by
giving BNPLC and the Participants a notice thereof in the form attached
as Exhibit F prior to the Base Rent Commencement Date.
(3) No termination pursuant to this subparagraph 4(B) shall be
effective, notwithstanding any notice NAI may have given as described in
the preceding clause (2), unless contemporaneously with the giving of
the notice (and in any event prior to the Base Rent Commencement Date)
NAI shall deliver to BNPLC an Issue 97-10 Prepayment.
(4) If for any reason whatsoever, including any bona fide dispute
over the amount of any required Issue 97-10 Prepayment, BNPLC does not
receive both the notice described in the preceding clause (2) and a full
Issue 97-10 Prepayment as described in the preceding clause (3) prior to
the Base Rent Commencement Date, then without any notice or other action
by the parties to this Agreement NAI shall cease to have any option to
terminate pursuant to this subparagraph 4(B).
(C) Election by BNPLC to Terminate the Purchase Option and NAI's Initial
Remarketing Rights and Obligations. By notice to NAI BNPLC shall be entitled to
terminate both the Purchase Option and NAI's Initial Remarketing Rights and
Obligations, as BNPLC deems appropriate in its sole and absolute discretion, at
any time after receiving a notice given by NAI to make or attempt to make any
Issue 97-10 Election. Upon any such termination by BNPLC, NAI shall become
immediately obligated to pay BNPLC an Issue 97-10 Prepayment.
(D) Automatic Termination of NAI's Rights. Without limiting BNPLC's right to
enforce NAI's obligation to pay any Supplemental Payment or other amounts
required by this Agreement, the rights of NAI (to be distinguished from the
obligations of NAI) included in NAI's Initial Remarketing Rights and
Obligations, the Purchase Option and NAI's Extended Remarketing Rights shall all
terminate automatically if NAI shall fail to pay the full amount of any
Supplemental Payment required by subparagraph 1(A)(2)(c)on the Designated Sale
Date or if BNPLC shall elect a Voluntary Retention of the Property as provided
in subparagraph 1(A)(2)(a). If, however, NAI's Initial Remarketing Rights and
Obligations are effectively terminated pursuant to subparagraph 4(B) or 4(C)
prior to the Designated Sale Date, thereby excusing NAI from the obligation to
make any Supplemental Payment pursuant to subparagraph 1(A)(2)(c) and precluding
any Voluntary Retention of the Property pursuant to subparagraph 1(A)(2)(a),
then NAI's Extended Remarketing Rights will not automatically terminate pursuant
to this subparagraph. Further, notwithstanding anything in this subparagraph to
the contrary, even after a failure to pay any required Supplemental Payment on
the Designated Sale Date, NAI may nonetheless tender to BNPLC the full Break
Even Price and all amounts then due under the Operative Documents, together with
interest on the total Break Even Price computed at the Default Rate from the
Designated Sale Date to the date of tender, on any Business Day within thirty
days after the Designated Sale Date, and if presented with such a tender within
thirty days after the Designated Sale Date, BNPLC must accept it and promptly
thereafter deliver any Escrowed Proceeds and the Sale Closing Documents listed
in Paragraph to NAI.
(E) Termination of NAI's Extended Remarketing Rights to Permit a Sale by
BNPLC. At any time more than ninety days after BNPLC has delivered a Third Party
Sale Notice to NAI as described in subparagraph 2(C)(2), BNPLC may terminate
NAI's Extended Remarketing Rights contemporaneously with the consummation of a
sale of the Property by BNPLC to any third party (be it the prospective
purchaser named in the Third Party Sale Notice or another third party) at a
price equal to or in excess of the Third Party Target Price specified in the
Third Party Sale Notice, so as to permit the sale of the Property unencumbered
by NAI's Extended Remarketing Rights.
(F) Payment Only to BNPLC. All amounts payable under this Agreement by NAI
and, if applicable, by an Applicable Purchaser must be paid directly to BNPLC,
and no payment to any other party shall be effective for the purposes of this
Agreement. In addition to the payments required under subparagraph, on the
Designated Sale Date NAI must pay all amounts then due to BNPLC under the
Improvements Lease or other Operative Documents.
(G) Remedies Under the Other Operative Documents. No repossession of or
re-entering upon the Property or exercise of any other remedies available to
BNPLC under the Improvements Lease or other Operative Documents shall terminate
NAI's rights or obligations hereunder, all of which shall survive BNPLC's
exercise of remedies under the other Operative Documents. NAI acknowledges that
the consideration for this Agreement is separate and independent of the
consideration for the Improvements Lease, the Construction Management Agreement
and the Closing Certificate, and NAI's
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obligations hereunder shall not be affected or impaired by any event or
circumstance that would excuse NAI from performance of its obligations under
such other Operative Documents.
(H) Occupancy by NAI Prior to Closing of a Sale . Prior to the closing of
any sale of the Property to NAI or an Applicable Purchaser hereunder, NAI's
occupancy of the Improvements and its use of the Property shall continue to be
subject to the terms and conditions of the Improvements Lease, including the
terms setting forth NAI's obligation to pay rent, prior to any termination or
expiration of the Improvements Lease pursuant to its express terms and
conditions.
5 SECURITY FOR NAI'S OBLIGATIONS; RETURN OF FUNDS. NAI's obligations under
this Agreement are secured by the Pledge Agreement, reference to which is hereby
made for a description of the Collateral covered thereby and the rights and
remedies provided to BNPLC thereby. Although the collateral agent appointed for
BNPLC as provided in the Pledge Agreement shall be entitled to hold all
Collateral as security for the full and faithful performance by NAI of NAI's
covenants and obligations under this Agreement, the Collateral shall not be
considered an advance payment of the Break Even Price or any Supplemental
Payment or a measure of BNPLC's damages should NAI breach this Agreement. If NAI
does breach this Agreement and fails to cure the same within any time specified
herein for the cure, BNPLC may, from time to time, without prejudice to any
other remedy and without notice to NAI, require the collateral agent to
immediately apply the proceeds of any disposition of the Collateral (and any
cash included in the Collateral) to amounts then due hereunder from NAI. If by a
Permitted Transfer BNPLC conveys its interest in the Property before the
Designated Sale Date, BNPLC may also assign BNPLC's interest in the Collateral
to the transferee. BNPLC shall be entitled to return any Collateral not sold or
used to satisfy the obligations secured by the Pledge Agreement directly to NAI
notwithstanding any prior actual or attempted conveyance or assignment by NAI,
voluntary or otherwise, of any right to receive the same; neither BNPLC nor the
collateral agent named in the Pledge Agreement shall be responsible for the
proper distribution or application by NAI of any such Collateral returned to
NAI; and any such return of Collateral to NAI shall discharge any obligation of
BNPLC to deliver such Collateral to all Persons claiming an interest in the
Collateral. Further, BNPLC shall be entitled to deliver any Escrowed Proceeds it
holds on the Designated Sale Date directly to NAI or to any Applicable Purchaser
purchasing BNPLC's interest in the Property and the Escrowed Proceeds pursuant
to this Agreement notwithstanding any prior actual or attempted conveyance or
assignment by NAI, voluntary or otherwise, of any right to receive the same;
BNPLC shall not be responsible for the proper distribution or application by NAI
or any Applicable Purchaser of any such Escrowed Proceeds paid over to NAI or
the Applicable Purchaser; and any such payment of Escrowed Proceeds to NAI or an
Applicable Purchaser shall discharge any obligation of BNPLC to deliver the same
to all Persons claiming an interest therein.
6 CERTAIN REMEDIES CUMULATIVE. No right or remedy herein conferred upon or
reserved to BNPLC is intended to be exclusive of any other right or remedy BNPLC
has with respect to the Property, and each and every right and remedy shall be
cumulative and in addition to any other right or remedy given hereunder or now
or hereafter existing at law or in equity or by statute. In addition to other
remedies available under this Agreement, either party shall be entitled, to the
extent permitted by applicable law, to a decree compelling performance of any of
the other party's agreements hereunder.
7 ATTORNEYS' FEES AND LEGAL EXPENSES. If either party to this Agreement
commences any legal action or other proceeding to enforce any of the terms of
this Agreement, or because of any breach by the other party or dispute
hereunder, the party prevailing in such action or proceeding shall be entitled
to recover from the other party all Attorneys' Fees incurred in connection
therewith, whether or not such controversy, claim or dispute is prosecuted to a
final judgment. Any such Attorneys' Fees incurred by either party in enforcing a
judgment in its favor under this Agreement shall be recoverable separately from
such judgment, and the obligation for such Attorneys' Fees is intended to be
severable from other provisions of this Agreement and not to be merged into any
such judgment.
8 ESTOPPEL CERTIFICATE. Upon request by BNPLC, NAI shall execute,
acknowledge and deliver a written statement certifying that this Agreement is
unmodified and in full effect (or, if there have been modifications, that this
Agreement is in full effect as modified, and setting forth such modification)
and either stating that no default exists hereunder or specifying each such
default of which NAI has knowledge. Any such statement may be relied upon by any
Participant or prospective purchaser or assignee of BNPLC with respect to the
Property.
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9 SUCCESSORS AND ASSIGNS. The terms, provisions, covenants and conditions
hereof shall be binding upon NAI and BNPLC and their respective permitted
successors and assigns and shall inure to the benefit of NAI and BNPLC and all
permitted transferees, mortgagees, successors and assignees of NAI and BNPLC
with respect to the Property; provided, that (A) the rights of BNPLC hereunder
shall not pass to NAI or any Applicable Purchaser or any subsequent owner
claiming through NAI or an Applicable Purchaser, (B) BNPLC shall not assign this
Agreement or any rights hereunder except pursuant to a Permitted Transfer, and
(C) NAI shall not assign this Agreement or any rights hereunder without the
prior written consent of BNPLC.
[Signature pages follow.]
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IN WITNESS WHEREOF, NAI and BNPLC have caused this Agreement to be
executed as of May 3, 1999.
"NAI"
NETWORK APPLIANCE, INC.
By:______________________________________
Name:____________________________________
Title:___________________________________
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15
[Continuation of signature pages to Purchase Agreement (Phase II - Improvements)
dated to be effective May 3, 1999]
"BNPLC"
BNP LEASING CORPORATION
By:______________________________________
Xxxxx X. Xxx, Vice President
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EXHIBIT A
LEGAL DESCRIPTION
All that certain real property situate in the City of Sunnyvale, State of
California, described as follows: All that certain Real Property in the City of
Sunnyvale, County of Santa Xxxxx, State of California, described as follows:
PARCEL ONE
All of Parcel "A" as said Parcel is shown upon that certain Parcel Map entitled
"For: Xxxxxxx Park Association, being a Redivision of Parcel "B" of Parcel Map
recorded in Book 292 of Maps in Page 41", which Map was filed for record in the
Office of the Recorder of the County of Santa Xxxxx, State of California, on
August 28, 1974 in Book 345 of Map, at Page 20.
PARCEL TWO
An Easement for pedestrian and motor vehicle Right-of-Way for the purpose of
ingress over a portion of land more particularly described as follows:
A 15 foot strip of land over a portion of "Parcel "A", as said Parcel "A" is
shown on that certain Parcel Map filed for record on October 25, 1966 in Book
216 of Maps, at Page 2, records of Santa Xxxxx County, and being more
particularly described as follows:
Commencing at the Northeast corner of said Parcel "A", said Northeast corner
also being a point on the center line of Xxxxxxxx Road (90.00 feet wide); thence
North 75 deg 07' 58" West along the Northerly line of said parcel "A", a
distance of 85.00 feet to the True Point of Beginning of this description;
thence continuing along said Northerly line North 75 deg 07' 58" West, a
distance of 322.50 feet; thence South 14 deg 52' 02" West, a distance of 15.00
feet; thence South 75 deg 07' 58" East parallel with and distance 15.00 feet
Southerly measured at right angles from the Northerly line of said Parcel "A" a
distance of 322.50 feet; thence North 14 deg 52' 02" East, a distance of 15.00
feet to the True Point of Beginning.
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EXHIBIT B
REQUIREMENTS RE: FORM OF GRANT DEED
The form of deed to be used to convey BNPLC's interest in the Improvements to
NAI or an Applicable Purchaser will depend upon whether BNPLC's interest in the
Land has been or is being conveyed at the same time to the same party.
If BNPLC's interests in BOTH the Land and the Improvements are to be conveyed to
NAI or an Applicable Purchaser at the same time, because a sale under this
Purchase Agreement and a sale under the Other Purchase Agreement (covering the
Land) are being consummated at the same time and to the same party, then the one
deed in form attached as Exhibit B-1 will be used to convey both.
If, however, a sale of BNPLC's interest in the Land pursuant to the Other
Purchase Agreement has not been consummated before, and is not being consummated
contemporaneously with the sale of BNPLC's interest in the Improvements under
this Agreement, then BNPLC's interest in the Improvements will be conveyed by a
deed in the from attached as Exhibit B-2.
Finally, BNPLC's interest in the Improvements will be conveyed by a deed in the
from attached as Exhibit B-3 if BNPLC's interest in the Land has been sold
pursuant to the Other Purchase Agreement before a sale of BNPLC's interest in
the Improvements under this Agreement, or if BNPLC's interest in the
Improvements is being sold contemporaneously with a sale of BNPLC's interest in
the Land, but the purchaser of the Improvements is not the same as the purchaser
of the Land.
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EXHIBIT B-1
CORPORATION GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
NAME: [NAI or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE: ___________________
Zip: ___________________
MAIL TAX STATEMENTS TO:
NAME: [NAI or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE: ___________________
Zip: ___________________
CORPORATION GRANT DEED
(Covering Land and Improvements)
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, BNP
LEASING CORPORATION, a Delaware corporation ("Grantor"), hereby grants to [NAI
or the Applicable Purchaser] ("Grantee") all of Grantor's interest in the land
situated in Sunnyvale, California, described on Annex A attached hereto and
hereby made a part hereof and all improvements on such land, together with the
any other right, title and interest of Grantor in and to any easements,
rights-of-way, privileges and other rights appurtenant to such land or the
improvements thereon; provided, however, that this grant is subject to the
encumbrances described on Annex B (the "Permitted Encumbrances"). Grantee hereby
assumes the obligations (including any personal obligations) of Grantor, if any,
created by or under, and agrees to be bound by the terms and conditions of, the
Permitted Encumbrances to the extent that the same concern or apply to the land
or improvements conveyed by this deed.
Exhibit - Page 2
19
BNP LEASING CORPORATION
Date: As of ____________ By:______________________________________
Its:__________________________________
Attest:__________________________________
Its:__________________________________
[NAI or Applicable Purchaser]
Date: As of ____________ By:______________________________________
Its:__________________________________
Attest:__________________________________
Its:__________________________________
STATE OF ____________ )
) SS
COUNTY OF ___________ )
On ___________________ before me, _______________, personally appeared
_______________ and _______________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the persons whose names are subscribed
to the within instrument and acknowledged to me that they executed the same in
their authorized capacities, and that by their signatures on the instrument the
person, or the entity upon behalf of which the persons acted, executed the
instrument.
WITNESS my hand and official seal.
Signature________________________________
STATE OF ____________ )
) SS
COUNTY OF ___________ )
On ___________________ before me, _______________, personally appeared
_______________ and _______________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the persons whose names are subscribed
to the within instrument and acknowledged to me that they executed the same in
their authorized capacities, and that by their signatures on the instrument the
person, or the entity upon behalf of which the persons acted, executed the
instrument.
WITNESS my hand and official seal.
Signature________________________________
EXHIBIT B-1 - PAGE 2
20
ANNEX A
LEGAL DESCRIPTION
[DRAFTING NOTE: TO THE EXTENT THAT THE "LAND" COVERED BY THE LAND LEASE CHANGES
FROM TIME TO TIME BECAUSE OF ADJUSTMENTS FOR WHICH NAI REQUESTS BNPLC'S CONSENT
OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY SUCH
CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING NOTE"
WILL BE DELETED BEFORE THE DEED TO WHICH THIS DESCRIPTION IS ATTACHED IS
ACTUALLY EXECUTED AND DELIVERED.]
All that certain real property situate in the City of Sunnyvale, State of
California, described as follows:
PARCEL ONE
All of Parcel "A" as said Parcel is shown upon that certain Parcel Map entitled
"For: Xxxxxxx Park Association, being a Redivision of Parcel "B" of Parcel Map
recorded in Book 292 of Maps in Page 41", which Map was filed for record in the
Office of the Recorder of the County of Santa Xxxxx, State of California, on
August 28, 1974 in Book 345 of Map, at Page 20.
PARCEL TWO
An Easement for pedestrian and motor vehicle Right-of-Way for the purpose of
ingress over a portion of land more particularly described as follows:
A 15 foot strip of land over a portion of "Parcel "A", as said Parcel "A" is
shown on that certain Parcel Map filed for record on October 25, 1966 in Book
216 of Maps, at Page 2, records of Santa Xxxxx County, and being more
particularly described as follows:
Commencing at the Northeast corner of said Parcel "A", said Northeast corner
also being a point on the center line of Xxxxxxxx Road (90.00 feet wide); thence
North 75 deg 07' 58" West along the Northerly line of said parcel "A", a
distance of 85.00 feet to the True Point of Beginning of this description;
thence continuing along said Northerly line North 75 deg 07' 58" West, a
distance of 322.50 feet; thence South 14 deg 52' 02" West, a distance of 15.00
feet; thence South 75 deg 07' 58" East parallel with and distance 15.00 feet
Southerly measured at right angles from the Northerly line of said Parcel "A" a
distance of 322.50 feet; thence North 14 deg 52' 02" East, a distance of 15.00
feet to the True Point of Beginning.
EXHIBIT B-1 - PAGE 3
21
ANNEX B
PERMITTED ENCUMBRANCES
[DRAFTING NOTE: TO THE EXTENT THAT ENCUMBRANCES (OTHER THAN "LIENS REMOVABLE BY
BNPLC") ARE IDENTIFIED IN ADDITION TO THOSE DESCRIBED BELOW, SUCH ADDITIONAL
ENCUMBRANCES WILL BE ADDED TO THE LIST BELOW AND THIS "DRAFTING NOTE" WILL BE
DELETED BEFORE THIS DEED IS ACTUALLY EXECUTED AND DELIVERED BY BNPLC. SUCH
ADDITIONAL ENCUMBRANCES WOULD INCLUDE ANY NEW ENCUMBRANCES APPROVED BY BNPLC AS
"PERMITTED ENCUMBRANCES" UNDER THE LAND LEASE OR THE OTHER LEASE AGREEMENT FROM
TIME TO TIME OR BECAUSE OF NAI'S REQUEST FOR BNPLC'S CONSENT OR APPROVAL TO AN
ADJUSTMENT.]
This conveyance is subject to all encumbrances not constituting a "Lien
Removable by BNPLC" (as defined in the Common Definitions and Provisions
Agreement (Phase II - Land) incorporated by reference into the Lease Agreement
(Phase II - Land) referenced in the last item of the list below), including the
following matters to the extent the same are still valid and in force:
1. TAXES for the fiscal year [current year], a lien not yet due or payable.
2. General and Special Taxes and Assessments, if any, for the fiscal year
1998-99.
Assessment No.: 000-00-000
Code No.: 09-059
First Installment: $34,099.75 Paid
Second Installment: $34,099.75 Payable, but not yet due
Assessed Valuation of
Personal Property: None
Homeowners Exemption: None
3. Supplemental Taxes for the fiscal year 1998-99 assessed pursuant to the
provisions of Chapter 3.5 (commencing with Section 75) of the Revenue and
Taxation Code of the State of California.
Assessors Parcel No.: 110-32-004-71
First Installment: Paid
Second Installment: $4,217.87, Payable, but not yet due
4. Supplemental Taxes for the fiscal year 1998-99 assessed pursuant to the
provisions of Chapter 3.5 (commencing with Section 75) of the Revenue and
Taxation Code of the State of California.
Assessors Parcel No.: 110-32-004-72
First Installment: Paid
Second Installment: $16,226.03, Payable, but not yet due
5. The Lien of Supplemental Taxes, if any, assessed pursuant to the provisions
of Chapter 3.5 (commencing with Section 75) of the Revenue and Taxation Code
of the State of California, resulting from changes of ownership or
completion of construction on or after the date of this policy.
6. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: City of Sunnyvale, A Municipal Corporation
For: Slope Easement
EXHIBIT B-1 - PAGE 4
22
Recorded: October 9, 1964, in Book 6695 at Page 430,
Official Records
Affects: The Southeasterly 18 feet of Said Land
7. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: City of Sunnyvale, A Municipal Corporation
For: Public Utilities
Recorded: October 9, 1964, in Book 6695 at Page 450,
Official Records
Affects: The Southeasterly 7 feet of Said Land
8. Covenants, Conditions and Restrictions in the Declaration of Restrictions;
which provide that a violation thereof shall not defeat or render invalid
the lien of any Mortgage or Deed of Trust made in good faith and for value.
Said Covenants, Conditions or Restrictions do not provide for reversion of
title in the event of a breach thereof. Restrictions, if any, based upon
race, color, religion, sex, handicap, familial status, or national origin
are deleted, unless and only to the extent that said covenant (a) is exempt
under Chapter 42, Section 3607, of the United States Code or (b) relates to
handicap but does not discriminate against handicapped persons.
Executed By: Xxxxxxx Park Associates, A Partnership
Recorded: December 23, 1971 in Book 9640 at Page 443 of
Official Records
An Assignment and Assumption
Executed by: Xxxxxxx Park Associates, A Partnership
To: The Prudential Insurance Company of America,
a New Jersey Corporation
Recorded: February 8, 1977 in Book C583 at Page 685 of
Official Records
9. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: Xxxxxxx Park Associates, A Partnership
For: Private and Public Utility Purposes
Recorded: November 29, 1974, in Book B190, page 398, as
Instrument No. 4903681, Official Records
Affects: The Northerly 5 feet of Said Land
10. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: Xxxx Enterprises, A Partnership, and
Northwest Poultry and
Dairy Products Co., an Oregon Corporation
For: 5 Foot Wide Storm Drain Easement
Recorded: June 17, 1975, in Book B467, page 167, as
Instrument No. 5032895, Official Records
Affects: As follows:
PARCEL ONE
A 5.00 Foot Wide Storm Drain easement 2.50 feet on each side of the center
line of an existing Storm Drain Pipe, said center line of said pipe being
described as follows:
Commencing at the Southwest corner of Parcel "A" as said Parcel "A" is shown
on that certain Parcel Map filed for record on August 28, 1974, in Book 345
of Maps at Page 20, records of Santa Xxxxx County,
EXHIBIT B-1 - PAGE 5
23
Thence North 14 deg 51' 33" East along the Westerly line of said Parcel "A",
a distance of 2.50 feet to the Point of Intersection of said center line of
said existing pipe and the True Point of Beginning of this description;
Thence South 75 deg 07' 58" East parallel with and istant 2.50 feet
Northerly measured at right angles, from the Southerly line of siad Parcel
"A' and along said existing pipe, a distance of 407.55 feet;
Thence North 14 deg 52' 02" East parallel with and distant 42.50 feet
Westerly measured at right angles from the Easterly line of said Parcel "A"
and along said existing pipe, a distance of 215 feet to an existing catch
basin;
Thence South 75 deg 07' 58" East on a line that is perpendicular to the
Easterly line of said Parcel "A" and along said existing pipe, a distance of
42.50 feet to a point on the Easterly line of said Parcel "A".
The side lines of said 5.00 Easement as described above shall be prolonged
or shortened so as to form a continuous 5.00 foot right of way from said
Westerly line of said Parcel "A" to said Easterly line of said Parcel "A".
PARCEL TWO
A 5.00 foot wide Storm Drain Easement 2.50 feet on each side of the center
line of an existing 12 inch storm drain pipe, said center line of said pipe
being described as follows:
Commencing at the Southwestern corner of Parcel "A" as said Parcel "A" is
shown on that certain Parcel Map filed for record on August 28, 1974 in Book
345 of Maps, at Page 20, records of Santa Xxxxx County;
Thence North 14 deg 51' 33" East along the Westerly line of said Parcel "A"
a distance of 2.50 feet to the Point of Intersection of the center line of
the existing Storm Drain Pipe described in Parcel 1 above;
Thence South 75 deg 07' 58" East along the center line of said pipe
described in said Parcel 1, a distance of 35.00 feet to the Point of
Intersection of the center line of an existing 12 inch Storm Drain Pipe and
the True Point of Beginning of this description;
Thence North 14 deg 51' 33" East along the center line of said existing 12
inch pipe, a distance of 87.00 feet;
Thence North 75 deg 07' 58" West and continuing along a center line of an
existing 6 inch Storm Drain Pipe, a distance of 35.00 feet to a point on the
Westerly line of said Parcel "A".
The sidelines of said 5.00 Easement as described above shall be prolonged or
shortened so as to form a continuous 5.00 foot Right-of-Way from the
Northerly side of the pipe described in Parcel 1 above to the Westerly line
of said Parcel "A".
11. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: The Prudential Insurance Company of America,
a New Jersey Corporation
For: A 5 foot wide Storm Drain Easement
Recorded: June 17, 1975 in Book B467, page 173, as
Instrument No. 5032896 Official Records
Affects: As follows:
PARCEL ONE
EXHIBIT B-1 - PAGE 6
24
A 5.00 foot wide Storm Drain Easement 2.50 feet on each side of the center
line of an existing 12 inch Storm Drain Pipe, said center line of said pipe
being described as follows:
Commencing at the Southeast corner of Parcel "A" as said Parcel "A" is shown
on that certain Parcel Map filed for record on August 28, 1974 in Book 345
of Maps at Page 20, records of Santa Xxxxx County,
Thence North 14 deg 52' 02" East along the Easterly line of said Parcel "A",
a distance of 2.50 feet to the Point of Intersection of said center line of
said existing storm drain pipe running along the Southerly line of said
Parcel "A";
Thence North 75 deg 07' 58" West along the center line of last said pipe
running along the Southerly line of Parcel "A" a distance of 156.00 feet to
the Point of Intersection of the center line of an existing 12 inch storm
drain pipe and the True Point of Beginning of this description;
Thence North 14 deg 52' 02" East along the center line of said existing 12
inch pipe a distance of 15.00 feet.
The side lines of said 5.00 Easement as described above shall be prolonged
or shortened so as to form a continuous 5.00 foot Right-of-Way from the said
True Point of Beginning of this description to point 2.50 feet North of an
existing storm drain inlet structure.
PARCEL TWO
A 5.00 foot wide storm drain easement, 2.50 feet on each side of the center
line of an existing 12 inch storm drain pipe, said center line of said pipe
being described as follows:
Commencing at the Southeast corner of Parcel "A" a said Parcel "A" is shown
on that certain Parcel Map filed for record on August 28, 1974 in Book 345
of Maps, at Page 20, records of Santa Xxxxx County;
Thence North 14 deg 52' 02" East along the Easterly line of said Parcel "A"
a distance of 2.50 feet to the Point of Intersection of the center line of
the existing storm drain pipe running thence along the Southerly line of
said Parcel "A";
Thence North 75 deg 07' 58" West along the center line of last said pipe
running along the Southerly line of said Parcel "A", a distance of 289.00
feet to the Point of Intersection of the center line of an existing 12 inch
storm drain pipe and the True point of Beginning of this description;
Thence North 14 deg 52' 02" East along the center line of said existing 12
inch pipe, a distance of 15.00 feet.
The side lines of said 5.00 foot easement as described above shall be
prolonged or shortened so as to form a continuous 5.00 foot Right-of-Way
from the said True Point of Beginning of this description to point 2.50 feet
North of an existing storm drain inlet structure.
PARCEL THREE
A 5.00 foot storm drain easement, 2.50 feet on each side of the center line
of an existing storm drain pipe, said center line of said pipe being
described as follows:
Commencing at the Southwest corner of Parcel "A" as said Parcel "A" is shown
on that certain Parcel Map filed for record on August 28, 1974 in Book 345
of Maps, at Page 20, records of Santa Xxxxx County;
EXHIBIT B-1 - PAGE 7
25
Thence North 14 deg 51' 33" East along the Westerly line of said Parcel "A"
a distance of 2.50 feet to the Point of Intersection of the center line of
the existing pipe;
Thence South 75 deg 07'58" East parallel with and distant 2.50 feet
Northerly, measured at right angles, from the Southerly line of said Parcel
"A" and along said existing pipe, a distance of 161.05 feet and the True
Point of Beginning of this description;
Thence again South 75 deg k07' 58" East continuing along said existing pipe
a distance of 246.50 feet;
Thence North 14 deg 52' 02" East parallel with and distant 42.50 feet
Westerly, measured at right angles, from the Easterly line of said Parcel
"A" and along said existing pipe, a distance of 215 feet to an existing
catch basin;
Thence South 75 deg 07' 58" East on a line that is perpendicular to the
Easterly line of said Parcel "A" and along said existing pipe, a distance of
42.50 feet to a point on the Easterly line of said Parcel "A".
The side lines of said 5.00 Easement as described above shall be prolonged
or shortened so as to form a continuous 5.00 foot right of way from said
Westerly line of said Parcel "A" to said Easterly line of said Parcel "A".
12. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: The Prudential Insurance Company of America,
new Jersey Corporation
For: A pedestrian and motor vehicle Right-of-Way
for the purposes of Ingress and Egress from
motor vehicle parking spaces
Recorded: June 17, 1975, in Book B467, page 178, as
Instrument No. 5032897 Official Records
Affects: As follows:
An 11 foot strip of land over a portion of Parcel "A" as said Parcel "A" is
shown on that certain Parcel Map filed for record on August 28, 1974, in
Book 345 of Maps, at Page 20, records of Santa Xxxxx County and being more
particularly described as follows:
Commencing at the Southeast corner of said Parcel "A", said Southeast corner
also being a point on the Westerly line of Xxxxxxxx Road (90.00 feet wide);
Thence North 75 deg 7' 58" West along the Southerly line of said Parcel "A",
a distance of 40.00 feet to the True Point of Beginning of this description;
Thence continuing along said Southerly line North 75 deg 07' 58" West, a
distance of 322.50 feet;
Thence North 14 deg 52' 02" East, a distance of 11.00 feet;
Thence South 75 deg 07' 58" East parallel with and distant Northerly 11.00
feet measured at right angles from said Southerly line of said Parcel "A", a
distance of 322.50 feet; thence South 14 deg 52' 02" West, a distance of
11.00 feet to the True Point of Beginning.
13. Any rights, Interests or Claims which may exist or arise by reason of the
following facts shown by a survey made by Xxxx & Xxxxxx, dated March 18,
1999, as Job No. 96214-2 and inspections of said land:
EXHIBIT B-1 - PAGE 8
26
(A) the fact that the landscaping area, patio and walkways located along the
northwesterly boundary is for the common use of the adjoining property lying
to the northwest of said land.
(B) the fact that the driveway located near the most northerly corner along
the northeasterly boundary is for the common use of the adjoining property
lying to the northeast of said land.
(C) the fact that the fence along the northwesterly boundary and across the
most northerly corner encroaches onto the adjoining properties lying to the
northwest and northeast of said land.
(D) the fact that the fence located near the southwesterly corner on the
southwesterly boundary encroaches onto the adjoining property lying to the
southwest of said land.
(E) the fact that the concrete curbs located along the northeasterly and
southeasterly boundaries encroach onto the 7.00 foot Public Utility easement
(6695-OR-450); onto the 18.00 foot Slope easement (6695-OR-430); onto the
5.00 foot Storm Drain easement (9790-OR-380, B467-OR-167 and B467-OR-173);
and onto the 5.00 foot Public Utility easement (B190-OR-398).
14. Lease Agreement (Phase II - Land) dated May 3, 1999, by and between BNP
Leasing Corporation, as lessor, and Network Appliance, Inc., as lessee, and
Lease Agreement (Phase II - Improvements) dated May 3, 1999, by and between
BNP Leasing Corporation, as lessor, and Network Appliance, Inc., as lessee.
EXHIBIT B-1 - PAGE 9
27
EXHIBIT B-2
CORPORATION GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
NAME: [NAI or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE: ___________________
Zip: ___________________
MAIL TAX STATEMENTS TO:
NAME: [NAI or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE: ___________________
Zip: ___________________
CORPORATION GRANT DEED
(Covering Improvements but not the Land under the Improvements)
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, BNP
LEASING CORPORATION, a Delaware corporation ("Grantor"), hereby grants to [NAI
or the Applicable Purchaser] ("Grantee") all of Grantor's interest in the
buildings and other improvements (the "Improvements") on the land situated in
Sunnyvale, California, described on Annex A attached hereto and hereby made a
part hereof (the "Land"), together with the any other right, title and interest
of Grantor in and to any easements, rights-of-way, privileges and other rights
appurtenant to the Improvements; provided, however, that this grant is subject
to the encumbrances described on Annex B (the "Permitted Encumbrances") and any
reservations or qualifications set forth below. Grantee hereby assumes the
obligations (including any personal obligations) of Grantor, if any, created by
or under, and agrees to be bound by the terms and conditions of, the Permitted
Encumbrances to the extent that the same concern or apply to the Improvements.
Although this deed conveys Grantor's interest in the Improvements, this deed
does not convey any interest in the Land under the Improvements or any rights or
easements appurtenant to Improvements. Grantor retains and reserves all right,
title and interest of Grantor in and to the Land and any rights and easements
appurtenant to Land. Further, this deed does not convey any right of access over
or right to use the Land, it being understood that the right of Grantee or its
successors and assigns to maintain or use the improvements conveyed hereby shall
be on and subject to the terms and conditions of any separate ground lease or
deed that Grantee may from time to time obtain from the owner of the Land. If
Grantee does not obtain a separate deed or ground lease giving Grantee the
authority to maintain the Improvements on the Land, Grantee shall remove or
abandon the Improvements promptly upon request of the owner of the Land. Nothing
herein or in the agreements pursuant to which this deed is being delivered shall
be construed as an obligation on the part of Grantor to deliver or cooperate
reasonably in obtaining for Grantee any deed or ground lease covering the Land
described on Annex A.
28
BNP LEASING CORPORATION
Date: As of ____________ By:______________________________________
Its:__________________________________
Attest:__________________________________
Its:__________________________________
[NAI or Applicable Purchaser]
Date: As of ____________ By:______________________________________
Its:__________________________________
Attest:__________________________________
Its:__________________________________
STATE OF ____________ )
) SS
COUNTY OF ___________ )
On ___________________ before me, _______________, personally appeared
_______________ and _______________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the persons whose names are subscribed
to the within instrument and acknowledged to me that they executed the same in
their authorized capacities, and that by their signatures on the instrument the
person, or the entity upon behalf of which the persons acted, executed the
instrument.
WITNESS my hand and official seal.
Signature_____________________________
STATE OF ____________ )
) SS
COUNTY OF ___________ )
On ___________________ before me, _______________, personally appeared
_______________ and _______________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the persons whose names are subscribed
to the within instrument and acknowledged to me that they executed the same in
their authorized capacities, and that by their signatures on the instrument the
person, or the entity upon behalf of which the persons acted, executed the
instrument.
WITNESS my hand and official seal.
Signature_____________________________
EXHIBIT B-2 - PAGE 2
29
ANNEX A
LEGAL DESCRIPTION
[DRAFTING NOTE: TO THE EXTENT THAT THE "LAND" COVERED BY THE LAND LEASE CHANGES
FROM TIME TO TIME BECAUSE OF ADJUSTMENTS FOR WHICH NAI REQUESTS BNPLC'S CONSENT
OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY SUCH
CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING NOTE"
WILL BE DELETED BEFORE THE DEED TO WHICH THIS DESCRIPTION IS ATTACHED IS
ACTUALLY EXECUTED AND DELIVERED.]
All that certain real property situate in the City of Sunnyvale, State of
California, described as follows:
PARCEL ONE
All of Parcel "A" as said Parcel is shown upon that certain Parcel Map entitled
"For: Xxxxxxx Park Association, being a Redivision of Parcel "B" of Parcel Map
recorded in Book 292 of Maps in Page 41", which Map was filed for record in the
Office of the Recorder of the County of Santa Xxxxx, State of California, on
August 28, 1974 in Book 345 of Map, at Page 20.
PARCEL TWO
An Easement for pedestrian and motor vehicle Right-of-Way for the purpose of
ingress over a portion of land more particularly described as follows:
A 15 foot strip of land over a portion of "Parcel "A", as said Parcel "A" is
shown on that certain Parcel Map filed for record on October 25, 1966 in Book
216 of Maps, at Page 2, records of Santa Xxxxx County, and being more
particularly described as follows:
Commencing at the Northeast corner of said Parcel "A", said Northeast corner
also being a point on the center line of Xxxxxxxx Road (90.00 feet wide); thence
North 75 deg 07' 58" West along the Northerly line of said parcel "A", a
distance of 85.00 feet to the True Point of Beginning of this description;
thence continuing along said Northerly line North 75 deg 07' 58" West, a
distance of 322.50 feet; thence South 14 deg 52' 02" West, a distance of 15.00
feet; thence South 75 deg 07' 58" East parallel with and distance 15.00 feet
Southerly measured at right angles from the Northerly line of said Parcel "A" a
distance of 322.50 feet; thence North 14 deg 52' 02" East, a distance of 15.00
feet to the True Point of Beginning.
EXHIBIT B-2 - PAGE 3
30
ANNEX B
PERMITTED ENCUMBRANCES
[DRAFTING NOTE: TO THE EXTENT THAT ENCUMBRANCES (OTHER THAN "LIENS REMOVABLE BY
BNPLC") ARE IDENTIFIED IN ADDITION TO THOSE DESCRIBED BELOW, SUCH ADDITIONAL
ENCUMBRANCES WILL BE ADDED TO THE LIST BELOW AND THIS "DRAFTING NOTE" WILL BE
DELETED BEFORE THIS DEED IS ACTUALLY EXECUTED AND DELIVERED BY BNPLC. SUCH
ADDITIONAL ENCUMBRANCES WOULD INCLUDE ANY NEW ENCUMBRANCES APPROVED BY BNPLC AS
"PERMITTED ENCUMBRANCES" UNDER THE LAND LEASE OR THE OTHER LEASE AGREEMENT FROM
TIME TO TIME OR BECAUSE OF NAI'S REQUEST FOR BNPLC'S CONSENT OR APPROVAL TO AN
ADJUSTMENT.]
This conveyance is subject to all encumbrances not constituting a "Lien
Removable by BNPLC" (as defined in the Common Definitions and Provisions
Agreement (Phase II - Land) incorporated by reference into the Lease Agreement
(Phase II - Land) referenced in the last item of the list below), including the
following matters to the extent the same are still valid and in force:
1. TAXES for the fiscal year [current year], a lien not yet due or payable.
2. General and Special Taxes and Assessments, if any, for the fiscal year
1998-99.
Assessment No.: 000-00-000
Code No.: 09-059
First Installment: $34,099.75 Paid
Second Installment: $34,099.75 Payable, but not yet due
Assessed Valuation of
Personal Property: None
Homeowners Exemption: None
3. The Lien of Supplemental Taxes, if any, assessed pursuant to the provisions
of Chapter 3.5 (commencing with Section 75) of the Revenue and Taxation Code
of the State of California, resulting from changes of ownership or
completion of construction on or after the date of this policy.
4. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: Pacific Gas and Electric Company, a California Corporation
For: A Line of Poles
EXHIBIT B-2 - PAGE 4
31
Recorded: February 6, 1951, in Book 2147 at Page 279,
Official Records
Affects: A Strip of land 5 feet in width over the
portion of Said Land lying within the North
1/2 of Lot 6, Xxxxxxxx Sub. No. 2
5. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: City of Sunnyvale, A Municipal Corporation
For: Slope Easement
Recorded: October 9, 1964, in Book 6695 at Page 430,
Official Records
Affects: The Southeasterly 18 feet of Said Land
6. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: City of Sunnyvale, A Municipal Corporation
For: Public Utilities
Recorded: October 9, 1964, in Book 6695 at Page 450,
Official Records
Affects: The Southeasterly 7 feet of Said Land
7. Covenants, Conditions and Restrictions in the Declaration of Restrictions;
which provide that a violation thereof shall not defeat or render invalid
the lien of any Mortgage or Deed of Trust made in good faith and for value.
Said Covenants, Conditions or Restrictions do not provide for reversion of
title in the event of a breach thereof. Restrictions, if any, based upon
race, color, religion, sex, handicap, familial status, or national origin
are deleted, unless and only to the extent that said covenant (a) is exempt
under Chapter 42, Section 3607, of the United States Code or (b) relates to
handicap but does not discriminate against handicapped persons.
Executed By: Xxxxxxx Park Associates, A Partnership
Recorded: December 23, 1971 in Book 9640 at Page 443 of
Official Records
An Assignment and Assumption
Executed by: Xxxxxxx Park Associates, A Partnership
To: The Prudential Insurance Company of America,
a New Jersey Corporation
Recorded: February 8, 1977 in Book C583 at Page 685 of
Official Records
8. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: Xxxxxxx Park Associates, A Partnership
For: Private and Public Utility Purposes
Recorded: November 29, 1974, in Book B190, page 398, as
Instrument No. 4903681, Official Records
Affects: The Northerly 5 feet of Said Land
9. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: Xxxx Enterprises, A Partnership, and
Northwest Poultry and Dairy Products Co., an
Oregon Corporation
For: 5 Foot Wide Storm Drain Easement
Recorded: June 17, 1975, in Book B467, page 167, as
Instrument No. 5032895, Official Records
Affects: As follows:
PARCEL ONE
A 5.00 Foot Wide Storm Drain easement 2.50 feet on each side of the center
line of an existing Storm Drain Pipe, said center line of said pipe being
described as follows:
Commencing at the Southwest corner of Parcel "A" as said Parcel "A" is shown
on that certain Parcel Map filed for record on August 28, 1974, in Book 345
of Maps at Page 20, records of Santa Xxxxx County,
EXHIBIT B-2 - PAGE 5
32
Thence North 14 deg 51' 33" East along the Westerly line of said Parcel "A",
a distance of 2.50 feet to the Point of Intersection of said center line of
said existing pipe and the True Point of Beginning of this description;
Thence South 75 deg 07' 58" East parallel with and istant 2.50 feet
Northerly measured at right angles, from the Southerly line of siad Parcel
"A' and along said existing pipe, a distance of 407.55 feet;
Thence North 14 deg 52' 02" East parallel with and distant 42.50 feet
Westerly measured at right angles from the Easterly line of said Parcel "A"
and along said existing pipe, a distance of 215 feet to an existing catch
basin;
Thence South 75 deg 07' 58" East on a line that is perpendicular to the
Easterly line of said Parcel "A" and along said existing pipe, a distance of
42.50 feet to a point on the Easterly line of said Parcel "A".
The side lines of said 5.00 Easement as described above shall be prolonged
or shortened so as to form a continuous 5.00 foot right of way from said
Westerly line of said Parcel "A" to said Easterly line of said Parcel "A".
PARCEL TWO
A 5.00 foot wide Storm Drain Easement 2.50 feet on each side of the center
line of an existing 12 inch storm drain pipe, said center line of said pipe
being described as follows:
Commencing at the Southwestern corner of Parcel "A" as said Parcel "A" is
shown on that certain Parcel Map filed for record on August 28, 1974 in Book
345 of Maps, at Page 20, records of Santa Xxxxx County;
Thence North 14 deg 51' 33" East along the Westerly line of said Parcel "A"
a distance of 2.50 feet to the Point of Intersection of the center line of
the existing Storm Drain Pipe described in Parcel 1 above;
Thence South 75 deg 07' 58" East along the center line of said pipe
described in said Parcel 1, a distance of 35.00 feet to the Point of
Intersection of the center line of an existing 12 inch Storm Drain Pipe and
the True Point of Beginning of this description;
Thence North 14 deg 51' 33" East along the center line of said existing 12
inch pipe, a distance of 87.00 feet;
Thence North 75 deg 07' 58" West and continuing along a center line of an
existing 6 inch Storm Drain Pipe, a distance of 35.00 feet to a point on the
Westerly line of said Parcel "A".
The sidelines of said 5.00 Easement as described above shall be prolonged or
shortened so as to form a continuous 5.00 foot Right-of-Way from the
Northerly side of the pipe described in Parcel 1 above to the Westerly line
of said Parcel "A".
10. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: The Prudential Insurance Company of America,
a New Jersey Corporation
For: A 5 foot wide Storm Drain Easement
Recorded: June 17, 1975 in Book B467, page 173, as
Instrument No. 5032896 Official Records
Affects: As follows:
PARCEL ONE
EXHIBIT B-2 - PAGE 6
33
A 5.00 foot wide Storm Drain Easement 2.50 feet on each side of the center
line of an existing 12 inch Storm Drain Pipe, said center line of said pipe
being described as follows:
Commencing at the Southeast corner of Parcel "A" as said Parcel "A" is shown
on that certain Parcel Map filed for record on August 28, 1974 in Book 345
of Maps at Page 20, records of Santa Xxxxx County,
Thence North 14 deg 52' 02" East along the Easterly line of said Parcel "A",
a distance of 2.50 feet to the Point of Intersection of said center line of
said existing storm drain pipe running along the Southerly line of said
Parcel "A";
Thence North 75 deg 07' 58" West along the center line of last said pipe
running along the Southerly line of Parcel "A" a distance of 156.00 feet to
the Point of Intersection of the center line of an existing 12 inch storm
drain pipe and the True Point of Beginning of this description;
Thence North 14 deg 52' 02" East along the center line of said existing 12
inch pipe a distance of 15.00 feet.
The side lines of said 5.00 Easement as described above shall be prolonged
or shortened so as to form a continuous 5.00 foot Right-of-Way from the said
True Point of Beginning of this description to point 2.50 feet North of an
existing storm drain inlet structure.
PARCEL TWO
A 5.00 foot wide storm drain easement, 2.50 feet on each side of the center
line of an existing 12 inch storm drain pipe, said center line of said pipe
being described as follows:
Commencing at the Southeast corner of Parcel "A" a said Parcel "A" is shown
on that certain Parcel Map filed for record on August 28, 1974 in Book 345
of Maps, at Page 20, records of Santa Xxxxx County;
Thence North 14 deg 52' 02" East along the Easterly line of said Parcel "A"
a distance of 2.50 feet to the Point of Intersection of the center line of
the existing storm drain pipe running thence along the Southerly line of
said Parcel "A";
Thence North 75 deg 07' 58" West along the center line of last said pipe
running along the Southerly line of said Parcel "A", a distance of 289.00
feet to the Point of Intersection of the center line of an existing 12 inch
storm drain pipe and the True point of Beginning of this description;
Thence North 14 deg 52' 02" East along the center line of said existing 12
inch pipe, a distance of 15.00 feet.
The side lines of said 5.00 foot easement as described above shall be
prolonged or shortened so as to form a continuous 5.00 foot Right-of-Way
from the said True Point of Beginning of this description to point 2.50 feet
North of an existing storm drain inlet structure.
PARCEL THREE
A 5.00 foot storm drain easement, 2.50 feet on each side of the center line
of an existing storm drain pipe, said center line of said pipe being
described as follows:
Commencing at the Southwest corner of Parcel "A" as said Parcel "A" is shown
on that certain Parcel Map filed for record on August 28, 1974 in Book 345
of Maps, at Page 20, records of Santa Xxxxx County;
EXHIBIT B-2 - PAGE 7
34
Thence North 14 deg 51' 33" East along the Westerly line of said Parcel "A"
a distance of 2.50 feet to the Point of Intersection of the center line of
the existing pipe;
Thence South 75 deg 07'58" East parallel with and distant 2.50 feet
Northerly, measured at right angles, from the Southerly line of said Parcel
"A" and along said existing pipe, a distance of 161.05 feet and the True
Point of Beginning of this description;
Thence again South 75 deg k07' 58" East continuing along said existing pipe
a distance of 246.50 feet;
Thence North 14 deg 52' 02" East parallel with and distant 42.50 feet
Westerly, measured at right angles, from the Easterly line of said Parcel
"A" and along said existing pipe, a distance of 215 feet to an existing
catch basin;
Thence South 75 deg 07' 58" East on a line that is perpendicular to the
Easterly line of said Parcel "A" and along said existing pipe, a distance of
42.50 feet to a point on the Easterly line of said Parcel "A".
The side lines of said 5.00 Easement as described above shall be prolonged
or shortened so as to form a continuous 5.00 foot right of way from said
Westerly line of said Parcel "A" to said Easterly line of said Parcel "A".
11. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: The Prudential Insurance Company of America,
new Jersey Corporation
For: A pedestrian and motor vehicle Right-of-Way
for the purposes of Ingress and Egress from
motor vehicle parking spaces
Recorded: June 17, 1975, in Book B467, page 178, as
Instrument No. 5032897 Official Records
Affects: As follows:
An 11 foot strip of land over a portion of Parcel "A" as said Parcel "A" is
shown on that certain Parcel Map filed for record on August 28, 1974, in
Book 345 of Maps, at Page 20, records of Santa Xxxxx County and being more
particularly described as follows:
Commencing at the Southeast corner of said Parcel "A", said Southeast corner
also being a point on the Westerly line of Xxxxxxxx Road (90.00 feet wide);
Thence North 75 deg 7' 58" West along the Southerly line of said Parcel "A",
a distance of 40.00 feet to the True Point of Beginning of this description;
Thence continuing along said Southerly line North 75 deg 07' 58" West, a
distance of 322.50 feet;
Thence North 14 deg 52' 02" East, a distance of 11.00 feet;
Thence South 75 deg 07' 58" East parallel with and distant Northerly 11.00
feet measured at right angles from said Southerly line of said Parcel "A", a
distance of 322.50 feet; thence South 14 deg 52' 02" West, a distance of
11.00 feet to the True Point of Beginning.
12. Any rights, Interests or Claims which may exist or arise by reason of the
following facts shown by a survey made by Xxxx & Xxxxxx, dated March 18,
1999, as Job No. 96214-2 and inspections of said land:
EXHIBIT B-2 - PAGE 8
35
(A) the fact that the landscaping area, patio and walkways located along the
northwesterly boundary is for the common use of the adjoining property lying
to the northwest of said land.
(B) the fact that the driveway located near the most northerly corner along
the northeasterly boundary is for the common use of the adjoining property
lying to the northeast of said land.
(C) the fact that the fence along the northwesterly boundary and across the
most northerly corner encroaches onto the adjoining properties lying to the
northwest and northeast of said land.
(D) the fact that the fence located near the southwesterly corner on the
southwesterly boundary encroaches onto the adjoining property lying to the
southwest of said land.
(E) the fact that the concrete curbs located along the northeasterly and
southeasterly boundaries encroach onto the 7.00 foot Public Utility easement
(6695-OR-450); onto the 18.00 foot Slope easement (6695-OR-430); onto the
5.00 foot Storm Drain easement (9790-OR-380, B467-OR-167 and B467-OR-173);
and onto the 5.00 foot Public Utility easement (B190-OR-398).
13. Lease Agreement (Phase II - Land) dated May 3, 1999, by and between BNP
Leasing Corporation, as lessor, and Network Appliance, Inc., as lessee, and
Lease Agreement (Phase II - Improvements) dated May 3, 1999, by and between
BNP Leasing Corporation, as lessor, and Network Appliance, Inc., as lessee.
EXHIBIT B-2 - PAGE 9
36
EXHIBIT B-3
CORPORATION GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
NAME: [NAI or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE: ___________________
Zip: ___________________
MAIL TAX STATEMENTS TO:
NAME: [NAI or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE: ___________________
Zip: ___________________
CORPORATION GRANT DEED
(Covering Improvements but not Land under the Improvements)
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, BNP
LEASING CORPORATION, a Delaware corporation ("Grantor"), hereby grants to [NAI
or the Applicable Purchaser] ("Grantee") all of Grantor's interest in the
buildings and other improvements (the "Improvements") on the land situated in
Sunnyvale, California, described on Annex A attached hereto and hereby made a
part hereof (the "Land"), together with the any other right, title and interest
of Grantor in and to any easements, rights-of-way, privileges and other rights
appurtenant to the Improvements; provided, however, that this grant is subject
to the encumbrances described on Annex B (the "Permitted Encumbrances") and any
reservations or qualifications set forth below. Grantee hereby assumes the
obligations (including any personal obligations) of Grantor, if any, created by
or under, and agrees to be bound by the terms and conditions of, the Permitted
Encumbrances to the extent that the same concern or apply to the Improvements.
Although this deed conveys Grantor's interest in the Improvements on the Land,
this deed does not convey any interest in the Land itself or any rights or
easements appurtenant to Land. Prior to or contemporaneously with the delivery
of this deed, Grantor has conveyed or is conveying the Land and appurtenant
rights and easements to another party, subject to the terms and conditions of a
Ground Lease dated ________, filed or to be filed for record in the Santa Xxxxx
County records. Grantor is assigning it's rights as lessee under the Ground
Lease to Grantee by a separate instrument dated of even date herewith.
EXHIBIT B-2 - PAGE 10
37
BNP LEASING CORPORATION
Date: As of ____________ By:______________________________________
Its:__________________________________
Attest:__________________________________
Its:__________________________________
[NAI or Applicable Purchaser]
Date: As of ____________ By:______________________________________
Its:__________________________________
Attest:__________________________________
Its:__________________________________
STATE OF ____________ )
) SS
COUNTY OF ___________ )
On ___________________ before me, _______________, personally appeared
_______________ and _______________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the persons whose names are subscribed
to the within instrument and acknowledged to me that they executed the same in
their authorized capacities, and that by their signatures on the instrument the
person, or the entity upon behalf of which the persons acted, executed the
instrument.
WITNESS my hand and official seal.
Signature___________________________
STATE OF ____________ )
) SS
COUNTY OF ___________ )
On ___________________ before me, _______________, personally appeared
_______________ and _______________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the persons whose names are subscribed
to the within instrument and acknowledged to me that they executed the same in
their authorized capacities, and that by their signatures on the instrument the
person, or the entity upon behalf of which the persons acted, executed the
instrument.
WITNESS my hand and official seal.
Signature_________________________
EXHIBIT B-3 - PAGE 2
38
ANNEX A
LEGAL DESCRIPTION
[DRAFTING NOTE: TO THE EXTENT THAT THE "LAND" COVERED BY THE LAND LEASE CHANGES
FROM TIME TO TIME BECAUSE OF ADJUSTMENTS FOR WHICH NAI REQUESTS BNPLC'S CONSENT
OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY SUCH
CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING NOTE"
WILL BE DELETED BEFORE THE DEED TO WHICH THIS DESCRIPTION IS ATTACHED IS
ACTUALLY EXECUTED AND DELIVERED.]
All that certain real property situate in the City of Sunnyvale, State of
California, described as follows:
PARCEL ONE
All of Parcel "A" as said Parcel is shown upon that certain Parcel Map entitled
"For: Xxxxxxx Park Association, being a Redivision of Parcel "B" of Parcel Map
recorded in Book 292 of Maps in Page 41", which Map was filed for record in the
Office of the Recorder of the County of Santa Xxxxx, State of California, on
August 28, 1974 in Book 345 of Map, at Page 20.
PARCEL TWO
An Easement for pedestrian and motor vehicle Right-of-Way for the purpose of
ingress over a portion of land more particularly described as follows:
A 15 foot strip of land over a portion of "Parcel "A", as said Parcel "A" is
shown on that certain Parcel Map filed for record on October 25, 1966 in Book
216 of Maps, at Page 2, records of Santa Xxxxx County, and being more
particularly described as follows:
Commencing at the Northeast corner of said Parcel "A", said Northeast corner
also being a point on the center line of Xxxxxxxx Road (90.00 feet wide); thence
North 75 deg 07' 58" West along the Northerly line of said parcel "A", a
distance of 85.00 feet to the True Point of Beginning of this description;
thence continuing along said Northerly line North 75 deg 07' 58" West, a
distance of 322.50 feet; thence South 14 deg 52' 02" West, a distance of 15.00
feet; thence South 75 deg 07' 58" East parallel with and distance 15.00 feet
Southerly measured at right angles from the Northerly line of said Parcel "A" a
distance of 322.50 feet; thence North 14 deg 52' 02" East, a distance of 15.00
feet to the True Point of Beginning.
EXHIBIT B-3 - PAGE 3
39
ANNEX B
PERMITTED ENCUMBRANCES
[DRAFTING NOTE: TO THE EXTENT THAT ENCUMBRANCES (OTHER THAN "LIENS REMOVABLE BY
BNPLC") ARE IDENTIFIED IN ADDITION TO THOSE DESCRIBED BELOW, SUCH ADDITIONAL
ENCUMBRANCES WILL BE ADDED TO THE LIST BELOW AND THIS "DRAFTING NOTE" WILL BE
DELETED BEFORE THIS DEED IS ACTUALLY EXECUTED AND DELIVERED BY BNPLC. SUCH
ADDITIONAL ENCUMBRANCES WOULD INCLUDE ANY NEW ENCUMBRANCES APPROVED BY BNPLC AS
"PERMITTED ENCUMBRANCES" UNDER THE LAND LEASE OR THE OTHER LEASE AGREEMENT FROM
TIME TO TIME OR BECAUSE OF NAI'S REQUEST FOR BNPLC'S CONSENT OR APPROVAL TO AN
ADJUSTMENT.]
This conveyance is subject to all encumbrances not constituting a "Lien
Removable by BNPLC" (as defined in the Common Definitions and Provisions
Agreement (Phase II - Land) incorporated by reference into the Lease Agreement
(Phase II - Land) referenced in the last item of the list below), including the
following matters to the extent the same are still valid and in force:
1. TAXES for the fiscal year [current year], a lien not yet due or payable.
2. General and Special Taxes and Assessments, if any, for the fiscal year
1998-99.
Assessment No.: 000-00-000
Code No.: 09-059
First Installment: $34,099.75 Paid
Second Installment: $34,099.75 Payable, but not yet due
Assessed Valuation of
Personal Property: None
Homeowners Exemption: None
3. The Lien of Supplemental Taxes, if any, assessed pursuant to the provisions
of Chapter 3.5 (commencing with Section 75) of the Revenue and Taxation Code
of the State of California, resulting from changes of ownership or
completion of construction on or after the date of this policy.
4. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: Pacific Gas and Electric Company,
a California corporation
For: A Line of Poles
Recorded: February 6, 1951, in Book 2147 at Page 279,
Official Records
Affects: A strip of land 5 feet in width over the
portion of Said Land lying within the North
1/2 of Lot 6, Xxxxxxxx Sub. No. 2
5. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: City of Sunnyvale, A Municipal Corporation
For: Slope Easement
EXHIBIT B-3 - PAGE 4
40
Recorded: October 9, 1964, in Book 6695 at Page 430,
Official Records
Affects: The Southeasterly 18 feet of Said Land
6. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: City of Sunnyvale, A Municipal Corporation
For: Public Utilities
Recorded: October 9, 1964, in Book 6695 at Page 450,
Official Records
Affects: The Southeasterly 7 feet of Said Land
7. Covenants, Conditions and Restrictions in the Declaration of Restrictions;
which provide that a violation thereof shall not defeat or render invalid
the lien of any Mortgage or Deed of Trust made in good faith and for value.
Said Covenants, Conditions or Restrictions do not provide for reversion of
title in the event of a breach thereof. Restrictions, if any, based upon
race, color, religion, sex, handicap, familial status, or national origin
are deleted, unless and only to the extent that said covenant (a) is exempt
under Chapter 42, Section 3607, of the United States Code or (b) relates to
handicap but does not discriminate against handicapped persons.
Executed By: Xxxxxxx Park Associates, A Partnership
Recorded: December 23, 1971 in Book 9640 at Page 443 of
Official Records
An Assignment and Assumption
Executed by: Xxxxxxx Park Associates, A Partnership
To: The Prudential Insurance Company of America,
a New Jersey Corporation
Recorded: February 8, 1977 in Book C583 at Page 685 of
Official Records
8. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: Xxxxxxx Park Associates, A Partnership
For: Private and Public Utility Purposes
Recorded: November 29, 1974, in Book B190, page 398, as
Instrument No. 4903681, Official Records
Affects: The Northerly 5 feet of Said Land
9. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: Xxxx Enterprises, A Partnership, and
Northwest Poultry and Dairy Products Co., an
Oregon Corporation
For: 5 Foot Wide Storm Drain Easement
Recorded: June 17, 1975, in Book B467, page 167, as
Instrument No. 5032895, Official Records
Affects: As follows:
PARCEL ONE
A 5.00 Foot Wide Storm Drain easement 2.50 feet on each side of the center
line of an existing Storm Drain Pipe, said center line of said pipe being
described as follows:
Commencing at the Southwest corner of Parcel "A" as said Parcel "A" is shown
on that certain Parcel Map filed for record on August 28, 1974, in Book 345
of Maps at Page 20, records of Santa Xxxxx County,
EXHIBIT B-3 - PAGE 5
41
Thence North 14 deg 51' 33" East along the Westerly line of said Parcel "A",
a distance of 2.50 feet to the Point of Intersection of said center line of
said existing pipe and the True Point of Beginning of this description;
Thence South 75 deg 07' 58" East parallel with and istant 2.50 feet
Northerly measured at right angles, from the Southerly line of siad Parcel
"A' and along said existing pipe, a distance of 407.55 feet;
Thence North 14 deg 52' 02" East parallel with and distant 42.50 feet
Westerly measured at right angles from the Easterly line of said Parcel "A"
and along said existing pipe, a distance of 215 feet to an existing catch
basin;
Thence South 75 deg 07' 58" East on a line that is perpendicular to the
Easterly line of said Parcel "A" and along said existing pipe, a distance of
42.50 feet to a point on the Easterly line of said Parcel "A".
The side lines of said 5.00 Easement as described above shall be prolonged
or shortened so as to form a continuous 5.00 foot right of way from said
Westerly line of said Parcel "A" to said Easterly line of said Parcel "A".
PARCEL TWO
A 5.00 foot wide Storm Drain Easement 2.50 feet on each side of the center
line of an existing 12 inch storm drain pipe, said center line of said pipe
being described as follows:
Commencing at the Southwestern corner of Parcel "A" as said Parcel "A" is
shown on that certain Parcel Map filed for record on August 28, 1974 in Book
345 of Maps, at Page 20, records of Santa Xxxxx County;
Thence North 14 deg 51' 33" East along the Westerly line of said Parcel "A"
a distance of 2.50 feet to the Point of Intersection of the center line of
the existing Storm Drain Pipe described in Parcel 1 above;
Thence South 75 deg 07' 58" East along the center line of said pipe
described in said Parcel 1, a distance of 35.00 feet to the Point of
Intersection of the center line of an existing 12 inch Storm Drain Pipe and
the True Point of Beginning of this description;
Thence North 14 deg 51' 33" East along the center line of said existing 12
inch pipe, a distance of 87.00 feet;
Thence North 75 deg 07' 58" West and continuing along a center line of an
existing 6 inch Storm Drain Pipe, a distance of 35.00 feet to a point on the
Westerly line of said Parcel "A".
The sidelines of said 5.00 Easement as described above shall be prolonged or
shortened so as to form a continuous 5.00 foot Right-of-Way from the
Northerly side of the pipe described in Parcel 1 above to the Westerly line
of said Parcel "A".
10. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: The Prudential Insurance Company of America,
a New Jersey Corporation
For: A 5 foot wide Storm Drain Easement
Recorded: June 17, 1975 in Book B467, page 173, as
Instrument No. 5032896 Official Records
Affects: As follows:
PARCEL ONE
EXHIBIT B-3 - PAGE 6
42
A 5.00 foot wide Storm Drain Easement 2.50 feet on each side of the center
line of an existing 12 inch Storm Drain Pipe, said center line of said pipe
being described as follows:
Commencing at the Southeast corner of Parcel "A" as said Parcel "A" is shown
on that certain Parcel Map filed for record on August 28, 1974 in Book 345
of Maps at Page 20, records of Santa Xxxxx County,
Thence North 14 deg 52' 02" East along the Easterly line of said Parcel "A",
a distance of 2.50 feet to the Point of Intersection of said center line of
said existing storm drain pipe running along the Southerly line of said
Parcel "A";
Thence North 75 deg 07' 58" West along the center line of last said pipe
running along the Southerly line of Parcel "A" a distance of 156.00 feet to
the Point of Intersection of the center line of an existing 12 inch storm
drain pipe and the True Point of Beginning of this description;
Thence North 14 deg 52' 02" East along the center line of said existing 12
inch pipe a distance of 15.00 feet.
The side lines of said 5.00 Easement as described above shall be prolonged
or shortened so as to form a continuous 5.00 foot Right-of-Way from the said
True Point of Beginning of this description to point 2.50 feet North of an
existing storm drain inlet structure.
PARCEL TWO
A 5.00 foot wide storm drain easement, 2.50 feet on each side of the center
line of an existing 12 inch storm drain pipe, said center line of said pipe
being described as follows:
Commencing at the Southeast corner of Parcel "A" a said Parcel "A" is shown
on that certain Parcel Map filed for record on August 28, 1974 in Book 345
of Maps, at Page 20, records of Santa Xxxxx County;
Thence North 14 deg 52' 02" East along the Easterly line of said Parcel "A"
a distance of 2.50 feet to the Point of Intersection of the center line of
the existing storm drain pipe running thence along the Southerly line of
said Parcel "A";
Thence North 75 deg 07' 58" West along the center line of last said pipe
running along the Southerly line of said Parcel "A", a distance of 289.00
feet to the Point of Intersection of the center line of an existing 12 inch
storm drain pipe and the True point of Beginning of this description;
Thence North 14 deg 52' 02" East along the center line of said existing 12
inch pipe, a distance of 15.00 feet.
The side lines of said 5.00 foot easement as described above shall be
prolonged or shortened so as to form a continuous 5.00 foot Right-of-Way
from the said True Point of Beginning of this description to point 2.50 feet
North of an existing storm drain inlet structure.
PARCEL THREE
A 5.00 foot storm drain easement, 2.50 feet on each side of the center line
of an existing storm drain pipe, said center line of said pipe being
described as follows:
Commencing at the Southwest corner of Parcel "A" as said Parcel "A" is shown
on that certain Parcel Map filed for record on August 28, 1974 in Book 345
of Maps, at Page 20, records of Santa Xxxxx County;
EXHIBIT B-3 - PAGE 7
43
Thence North 14 deg 51' 33" East along the Westerly line of said Parcel "A"
a distance of 2.50 feet to the Point of Intersection of the center line of
the existing pipe;
Thence South 75 deg 07'58" East parallel with and distant 2.50 feet
Northerly, measured at right angles, from the Southerly line of said Parcel
"A" and along said existing pipe, a distance of 161.05 feet and the True
Point of Beginning of this description;
Thence again South 75 deg k07' 58" East continuing along said existing pipe
a distance of 246.50 feet;
Thence North 14 deg 52' 02" East parallel with and distant 42.50 feet
Westerly, measured at right angles, from the Easterly line of said Parcel
"A" and along said existing pipe, a distance of 215 feet to an existing
catch basin;
Thence South 75 deg 07' 58" East on a line that is perpendicular to the
Easterly line of said Parcel "A" and along said existing pipe, a distance of
42.50 feet to a point on the Easterly line of said Parcel "A".
The side lines of said 5.00 Easement as described above shall be prolonged
or shortened so as to form a continuous 5.00 foot right of way from said
Westerly line of said Parcel "A" to said Easterly line of said Parcel "A".
11. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: The Prudential Insurance Company of America,
new Jersey Corporation
For: A pedestrian and motor vehicle Right-of-Way
for the purposes of Ingress and Egress from
motor vehicle parking spaces
Recorded: June 17, 1975, in Book B467, page 178, as
Instrument No. 5032897 Official Records
Affects: As follows:
An 11 foot strip of land over a portion of Parcel "A" as said Parcel "A" is
shown on that certain Parcel Map filed for record on August 28, 1974, in
Book 345 of Maps, at Page 20, records of Santa Xxxxx County and being more
particularly described as follows:
Commencing at the Southeast corner of said Parcel "A", said Southeast corner
also being a point on the Westerly line of Xxxxxxxx Road (90.00 feet wide);
Thence North 75 deg 7' 58" West along the Southerly line of said Parcel "A",
a distance of 40.00 feet to the True Point of Beginning of this description;
Thence continuing along said Southerly line North 75 deg 07' 58" West, a
distance of 322.50 feet;
Thence North 14 deg 52' 02" East, a distance of 11.00 feet;
Thence South 75 deg 07' 58" East parallel with and distant Northerly 11.00
feet measured at right angles from said Southerly line of said Parcel "A", a
distance of 322.50 feet; thence South 14 deg 52' 02" West, a distance of
11.00 feet to the True Point of Beginning.
12. Any rights, Interests or Claims which may exist or arise by reason of the
following facts shown by a survey made by Xxxx & Xxxxxx, dated March 18,
1999, as Job No. 96214-2 and inspections of said land:
EXHIBIT B-3 - PAGE 8
44
(A) the fact that the landscaping area, patio and walkways located along the
northwesterly boundary is for the common use of the adjoining property lying
to the northwest of said land.
(B) the fact that the driveway located near the most northerly corner along
the northeasterly boundary is for the common use of the adjoining property
lying to the northeast of said land.
(C) the fact that the fence along the northwesterly boundary and across the
most northerly corner encroaches onto the adjoining properties lying to the
northwest and northeast of said land.
(D) the fact that the fence located near the southwesterly corner on the
southwesterly boundary encroaches onto the adjoining property lying to the
southwest of said land.
(E) the fact that the concrete curbs located along the northeasterly and
southeasterly boundaries encroach onto the 7.00 foot Public Utility easement
(6695-OR-450); onto the 18.00 foot Slope easement (6695-OR-430); onto the
5.00 foot Storm Drain easement (9790-OR-380, B467-OR-167 and B467-OR-173);
and onto the 5.00 foot Public Utility easement (B190-OR-398).
13. Lease Agreement (Phase II - Land) dated May 3, 1999, by and between BNP
Leasing Corporation, as lessor, and Network Appliance, Inc., as lessee, and
Lease Agreement (Phase II - Improvements) dated May 3, 1999, by and between
BNP Leasing Corporation, as lessor, and Network Appliance, Inc., as lessee.
EXHIBIT B-3 - PAGE 9
45
EXHIBIT C
XXXX OF SALE AND ASSIGNMENT
Reference is made to: (1) that certain Purchase Agreement (Phase II -
Improvements) between BNP Leasing Corporation ("ASSIGNOR") and Network
Appliance, Inc., dated as of May 3, 1999, (the "PURCHASE AGREEMENT") and (2)
that certain Lease Agreement (Phase II Improvements) between Assignor, as
landlord, and Network Appliance, Inc., as tenant, dated as of May 3, 1999 (the
"IMPROVEMENTS LEASE"). (Capitalized terms used and not otherwise defined in this
document are intended to have the meanings assigned to them in the Common
Definitions and Provisions Agreement (Phase II - Improvements) incorporated by
reference into both the Purchase Agreement and Improvements Lease.)
As contemplated by the Purchase Agreement, Assignor hereby sells,
transfers and assigns unto [NAI OR THE APPLICABLE PURCHASER, AS THE CASE MAY
BE], a _____________ ("ASSIGNEE"), all of Assignor's right, title and interest
in and to the following property, if any, to the extent such property is
assignable:
(a) the Improvements Lease [DRAFTING NOTE: THE FOLLOWING WILL BE ADDED
ONLY IF APPLICABLE BECAUSE OF THE SIMULTANEOUS DELIVERY OF A GRANT DEED IN THE
FORM OF EXHIBIT B-3: and the Ground Lease dated _________, between _________, as
lessor, and Assignor, as lessee, filed for record on in ___________ of Santa
Xxxxx County records (the "GROUND LEASE")];
(b) any pending or future award made because of any condemnation
affecting the Property or because of any conveyance to be made in lieu thereof,
and any unpaid award for damage to the Property and any unpaid proceeds of
insurance or claim or cause of action for damage, loss or injury to the
Property; and
(c) all other property included within the definition of "Property" as
set forth in the Purchase Agreement, including but not limited to any of the
following transferred to Assignor by the tenant pursuant to Paragraph 7 of the
Improvements Lease or otherwise acquired by Assignor, at the time of the
execution and delivery of the Improvements Lease and Purchase Agreement or
thereafter, by reason of Assignor's status as the owner of any interest in the
Property: (1) any goods, equipment, furnishings, furniture, chattels and
tangible personal property of whatever nature that are located on the Property
and all renewals or replacements of or substitutions for any of the foregoing;
(ii) the rights of Assignor, existing at the time of the execution of the
Improvements Lease and Purchase Agreement or thereafter arising, under Permitted
Encumbrances or Development Documents (both as defined in the Improvements
Lease); and (iii) any other permits, licenses, franchises, certificates, and
other rights and privileges related to the Property that Assignee would have
acquired if Assignee had itself acquired the Improvements covered by the
Improvements Lease and constructed the Improvements included in the Property.
Provided, however, excluded from this conveyance and reserved to Assignor are
any rights or privileges of Assignor under the following ("EXCLUDED RIGHTS"):
(1) the indemnities set forth in the Improvements Lease, whether such rights are
presently known or unknown, including rights of the Assignor to be indemnified
against environmental claims of third parties as provided in the Improvements
Lease which may not presently be known, (2) provisions in the Improvements Lease
that establish the right of Assignor to recover any accrued unpaid rent under
the Improvements Lease which may be outstanding as of the date hereof, (3)
agreements between Assignor and "BNPLC's Parent" or any "Participant," both as
defined in the Improvements Lease, or any modification or extension thereof, or
(4) any other instrument being delivered to Assignor contemporaneously herewith
pursuant to the Purchase Agreement. To the extent that this conveyance does
include any rights to receive future payments under the Improvements Lease, such
rights ("INCLUDED RIGHTS") shall be subordinate to Assignor's Excluded Rights,
and Assignee hereby waives any rights to enforce Included Rights until such time
as Assignor has received all payments to which it remains entitled by reason of
Excluded Rights. If any amount shall be paid to Assignee on account of any
Included Rights at any time before Assignor has received all payments to which
it is entitled because of Excluded Rights, such amount shall be held in trust by
Assignee for the benefit of Assignor, shall be segregated from the other funds
of Assignee and
EXHIBIT - PAGE 1
46
shall forthwith be paid over to Assignor to be held by Assignor as collateral
for, or then or at any time thereafter applied in whole or in part by Assignor
against, the payments due to Assignor because of Excluded Rights, whether
matured or unmatured, in such order as Assignor shall elect.
Assignor does for itself and its successors covenant and agree to
warrant and defend the title to the property assigned herein against the just
and lawful claims and demands of any person claiming under or through a Lien
Removable by BNPLC, but not otherwise.
Assignee hereby assumes and agrees to keep, perform and fulfill
Assignor's obligations, if any, relating to any permits or contracts, under
which Assignor has rights being assigned herein.
IN WITNESS WHEREOF, the parties have executed this instrument as of
_______________, _____.
ASSIGNOR:
BNP LEASING CORPORATION a Delaware
corporation
By:______________________________________
Its:_____________________________________
ASSIGNEE:
[NAI or the Applicable Purchaser], a
________________________
By:______________________________________
Its:_____________________________________
EXHIBIT C - PAGE 2
47
STATE OF ____________ )
) SS
COUNTY OF ___________ )
On ___________________ before me, _______________, personally appeared
_______________ and _______________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the persons whose names are subscribed
to the within instrument and acknowledged to me that they executed the same in
their authorized capacities, and that by their signatures on the instrument the
person, or the entity upon behalf of which the persons acted, executed the
instrument.
WITNESS my hand and official seal.
Signature_________________________
STATE OF ____________ )
) SS
COUNTY OF ___________ )
On ___________________ before me, _______________, personally appeared
_______________ and _______________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the persons whose names are subscribed
to the within instrument and acknowledged to me that they executed the same in
their authorized capacities, and that by their signatures on the instrument the
person, or the entity upon behalf of which the persons acted, executed the
instrument.
WITNESS my hand and official seal.
Signature_________________________
EXHIBIT C - PAGE 3
48
ANNEX A
LEGAL DESCRIPTION
[DRAFTING NOTE: TO THE EXTENT THAT THE "LAND" COVERED BY THE OTHER LEASE CHANGES
FROM TIME TO TIME BECAUSE OF ADJUSTMENTS FOR WHICH NAI REQUESTS BNPLC'S CONSENT
OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY SUCH
CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING NOTE"
WILL BE DELETED BEFORE THE DOCUMENT TO WHICH THIS DESCRIPTION IS ATTACHED IS
ACTUALLY EXECUTED AND DELIVERED.]
All that certain real property situate in the City of Sunnyvale, State of
California, described as follows: All that certain Real Property in the City of
Sunnyvale, County of Santa Xxxxx, State of California, described as follows:
PARCEL ONE
All of Parcel "A" as said Parcel is shown upon that certain Parcel Map entitled
"For: Xxxxxxx Park Association, being a Redivision of Parcel "B" of Parcel Map
recorded in Book 292 of Maps in Page 41", which Map was filed for record in the
Office of the Recorder of the County of Santa Xxxxx, State of California, on
August 28, 1974 in Book 345 of Map, at Page 20.
PARCEL TWO
An Easement for pedestrian and motor vehicle Right-of-Way for the purpose of
ingress over a portion of land more particularly described as follows:
A 15 foot strip of land over a portion of "Parcel "A", as said Parcel "A" is
shown on that certain Parcel Map filed for record on October 25, 1966 in Book
216 of Maps, at Page 2, records of Santa Xxxxx County, and being more
particularly described as follows:
Commencing at the Northeast corner of said Parcel "A", said Northeast corner
also being a point on the center line of Xxxxxxxx Road (90.00 feet wide); thence
North 75 deg 07' 58" West along the Northerly line of said parcel "A", a
distance of 85.00 feet to the True Point of Beginning of this description;
thence continuing along said Northerly line North 75 deg 07' 58" West, a
distance of 322.50 feet; thence South 14 deg 52' 02" West, a distance of 15.00
feet; thence South 75 deg 07' 58" East parallel with and distance 15.00 feet
Southerly measured at right angles from the Northerly line of said Parcel "A" a
distance of 322.50 feet; thence North 14 deg 52' 02" East, a distance of 15.00
feet to the True Point of Beginning.
EXHIBIT C - PAGE 4
49
EXHIBIT D
ACKNOWLEDGMENT OF DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
THIS ACKNOWLEDGMENT OF DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
(this "CERTIFICATE") is made as of ___________________, ____, by [NAI or the
Applicable Purchaser, as the case may be], a ___________________ ("GRANTEE").
Contemporaneously with the execution of this Certificate, BNP Leasing
Corporation, a Delaware corporation ("BNPLC"), is executing and delivering to
Grantee (1) a corporate grant deed and (2) a Xxxx of Sale and Assignment (the
foregoing documents and any other documents to be executed in connection
therewith are herein called the "CONVEYANCING DOCUMENTS" and any of the
properties, rights or other matters assigned, transferred or conveyed pursuant
thereto are herein collectively called the "SUBJECT PROPERTY").
NOTWITHSTANDING ANY PROVISION CONTAINED IN THE CONVEYANCING DOCUMENTS TO
THE CONTRARY, GRANTEE ACKNOWLEDGES THAT BNPLC MAKES NO REPRESENTATIONS OR
WARRANTIES OF ANY NATURE OR KIND, WHETHER STATUTORY, EXPRESS OR IMPLIED, WITH
RESPECT TO ENVIRONMENTAL MATTERS OR THE PHYSICAL CONDITION OF THE SUBJECT
PROPERTY, AND GRANTEE, BY ACCEPTANCE OF THE CONVEYANCING DOCUMENTS, ACCEPTS THE
SUBJECT PROPERTY "AS IS," "WHERE IS," "WITH ALL FAULTS" AND WITHOUT ANY SUCH
REPRESENTATION OR WARRANTY BY GRANTOR AS TO ENVIRONMENTAL MATTERS, THE PHYSICAL
CONDITION OF THE SUBJECT PROPERTY, COMPLIANCE WITH SUBDIVISION OR PLATTING
REQUIREMENTS OR CONSTRUCTION OF ANY IMPROVEMENTS. Without limiting the
generality of the foregoing, Grantee hereby further acknowledges and agrees that
warranties of merchantability and fitness for a particular purpose are excluded
from the transaction contemplated by the Conveyancing Documents, as are any
warranties arising from a course of dealing or usage of trade. Grantee hereby
assumes all risk and liability (and agrees that BNPLC shall not be liable for
any special, direct, indirect, consequential, or other damages) resulting or
arising from or relating to the ownership, use, condition, location,
maintenance, repair, or operation of the Subject Property, except for damages
proximately caused by (and attributed by any applicable principles of
comparative fault to) the Established Misconduct of BNPLC. As used in the
preceding sentence, "ESTABLISHED MISCONDUCT" is intended to have, and be limited
to, the meaning given to it in the Common Definitions and Provisions Agreement
(Phase II - Improvements) incorporated by reference into the Purchase Agreement
between BNPLC and Network Appliance, Inc. dated May 3, 1999, pursuant to which
Purchase Agreement BNPLC is delivering the Conveyancing Documents.
The provisions of this Certificate shall be binding on Grantee, its
successors and assigns and any other party claiming through Grantee. Grantee
hereby acknowledges that BNPLC is entitled to rely and is relying on this
Certificate.
EXECUTED as of ________________, ____.
[NAI or the Applicable Purchaser]
By:______________________________________
Name:_________________________________
Title:________________________________
50
EXHIBIT E
SECRETARY'S CERTIFICATE
The undersigned, [Secretary or Assistant Secretary] of BNP Leasing
Corporation, a Delaware corporation (the "Corporation"), hereby certifies as
follows:
1. That he is the duly, elected, qualified and acting Secretary [or
Assistant Secretary] of the Corporation and has custody of the corporate
records, minutes and corporate seal.
2. That the following named persons have been properly designated,
elected and assigned to the office in the Corporation as indicated below; that
such persons hold such office at this time and that the specimen signature
appearing beside the name of such officer is his or her true and correct
signature.
[THE FOLLOWING BLANKS MUST BE COMPLETED WITH THE NAMES AND SIGNATURES OF THE
OFFICERS WHO WILL BE SIGNING THE DEED AND OTHER SALE CLOSING DOCUMENTS ON BEHALF
OF THE CORPORATION.]
Name Title Signature
---- ----- ---------
---------------- ---------------- ----------------
---------------- ---------------- ----------------
3. That the resolutions attached hereto and made a part hereof were duly
adopted by the Board of Directors of the Corporation in accordance with the
Corporation's Articles of Incorporation and Bylaws. Such resolutions have not
been amended, modified or rescinded and remain in full force and effect.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal
of the Corporation on this ____, day of __________, ____.
_________________________________________
[signature and title]
51
CORPORATE RESOLUTIONS OF
BNP LEASING CORPORATION
WHEREAS, pursuant to that certain Purchase Agreement (Phase II -
Improvements) (herein called the "Purchase Agreement") dated as of May 3, 1999,
by and between BNP Leasing Corporation (the "Corporation") and [NAI OR THE
APPLICABLE PURCHASER AS THE CASE MAY BE] ("Purchaser"), the Corporation agreed
to sell and Purchaser agreed to purchase or cause the Applicable Purchaser (as
defined in the Purchase Agreement) to purchase the Corporation's interest in the
property (the "Property") located in Sunnyvale, California more particularly
described therein.
NOW THEREFORE, BE IT RESOLVED, that the Board of Directors of the
Corporation, in its best business judgment, deems it in the best interest of the
Corporation and its shareholders that the Corporation convey the Property to
Purchaser or the Applicable Purchaser pursuant to and in accordance with the
terms of the Purchase Agreement.
RESOLVED FURTHER, that the proper officers of the Corporation, and each
of them, are hereby authorized and directed in the name and on behalf of the
Corporation to cause the Corporation to fulfill its obligations under the
Purchase Agreement.
RESOLVED FURTHER, that the proper officers of the Corporation, and each
of them, are hereby authorized and directed to take or cause to be taken any and
all actions and to prepare or cause to be prepared and to execute and deliver
any and all deeds and other documents, instruments and agreements that shall be
necessary, advisable or appropriate, in such officer's sole and absolute
discretion, to carry out the intent and to accomplish the purposes of the
foregoing resolutions.
EXHIBIT E - PAGE 2
52
EXHIBIT F
FIRPTA STATEMENT
Section 1445 of the Internal Revenue Code of 1986, as amended, provides
that a transferee of a U.S. real property interest must withhold tax if the
transferor is a foreign person. Sections 18805, 18815 and 26131 of the
California Revenue and Taxation Code, as amended, provide that a transferee of a
California real property interest must withhold income tax if the transferor is
a nonresident seller.
To inform [NAI OR THE APPLICABLE PURCHASER] (the "Transferee") that
withholding of tax is not required upon the disposition of a California real
property interest by transferor, BNP Leasing Corporation (the "Seller"), the
undersigned hereby certifies the following on behalf of the Seller:
1. The 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. The United States employer identification number for the Seller is
_____________________;
3.The office address of the Seller is ______________
_________________________ _________________.
4. The Seller is qualified to do business in California.
The Seller understands that this certification may be disclosed to the
Internal Revenue Service and/or to the California Franchise Tax Board by the
Transferee and that any false statement contained herein could be punished by
fine, imprisonment, or both.
The Seller understands that the Transferee is relying on this affidavit
in determining whether withholding is required upon said transfer.
Under penalties of perjury I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have authority to sign this document on
behalf of the Seller.
Dated: ___________, ____.
By:______________________________________
Name:_________________________________
Title:________________________________
53
Exhibit K
NOTICE OF ELECTION TO TERMINATE THE PURCHASE OPTION AND
NAI'S INITIAL REMARKETING RIGHTS AND OBLIGATIONS
BNP Leasing Corporation
00000 Xxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxx
Re: Purchase Agreement (Phase II - Improvements) dated as of May 3, 1999
(the "PURCHASE AGREEMENT"), between Network Appliance, Inc. ("NAI") and BNP
Leasing Corporation ("BNPLC")
Gentlemen:
Capitalized terms used in this letter are intended to have the meanings
assigned to them in the Purchase Agreement referenced above. This letter shall
constitute a notice, given before the Base Rent Commencement Date pursuant to
subparagraph of the Purchase Agreement, of NAI's election to terminate the
Purchase Option and NAI's Initial Remarketing Rights and Obligations. NAI
irrevocably elects to terminate the Purchase Option and NAI's Initial
Remarketing Rights and Obligations effective immediately, subject only to the
conditions described below.
NAI ACKNOWLEDGES THAT THE ELECTION MADE BY NAI DESCRIBED ABOVE
CONSTITUTES AN ISSUE 97-10 ELECTION UNDER AND AS DEFINED IN THE OPERATIVE
DOCUMENTS.
NAI also acknowledges that its right to terminate the Purchase Option
and NAI's Initial Remarketing Rights and Obligations is subject to the condition
precedent that (x) NAI shall have given Notice of NAI's Election to Terminate
pursuant to Paragraph 5(D) of the Construction Management Agreement, or (y)
BNPLC shall have given any FOCB Notice as provided in Paragraph 5(E) of the
Construction Management Agreement, or (z) BNPLC shall have given notice of its
election to accelerate the Designated Sale Date when an Event of Default has
occurred and is continuing as provided in clause (5) of the definition
Designated Sale Date in the Common Definitions and Provisions Agreement (Phase
II - Improvements). Accordingly, if none of the notices described in the
preceding sentence have been given, the Purchase Option and NAI's Initial
Remarketing Rights and Obligations shall not terminate by reason of this notice.
NAI further acknowledges that no termination of the Purchase Option and
NAI's Initial Remarketing Rights and Obligations by NAI pursuant to this notice
shall be effective, unless contemporaneously with the giving of this notice NAI
shall deliver to BNPLC a full Issue 97-10 Prepayment. NAI hereby covenants to
pay, if NAI has not already done so, a full Issue 97-10 Prepayment to BNPLC.
Finally, NAI acknowledges that a termination of the Purchase Option and
NAI's Initial Remarketing Rights and Obligations pursuant to this notice shall
cause the Improvements Lease to terminate as of the Base Rent Commencement Date
pursuant to subparagraph 1(b) of the Improvements Lease.
54
Executed this _____ day of ______________, 19___.
NETWORK APPLIANCE, INC.
Name:____________________________________
Title:___________________________________
[cc all Participants]
EXHIBIT - PAGE 2
