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EXHIBIT 10.53
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PURCHASE AGREEMENT
(PHASE IV - IMPROVEMENTS)
BETWEEN
BNP LEASING CORPORATION
("BNPLC")
AND
NETWORK APPLIANCE, INC.
("NAI")
DECEMBER ___, 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......................................................2
(C) Designation of the Purchaser.........................................................3
(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..........................................................................4
(F) Delivery of Books and Records If BNPLC Retains the Property..........................4
2. NAI'S RIGHTS AND OPTIONS AFTER THE DESIGNATED SALE DATE...................................4
(A) NAI's Extended Right to Remarket.....................................................4
(B) Definition of Minimum Extended Remarketing Price.....................................5
(C) BNPLC's Right to Sell................................................................6
(D) NAI's Right to Excess Sales Proceeds.................................................6
(E) Permitted Transfers During NAI's Extended Remarketing Period.........................6
3. TERMS OF CONVEYANCE UPON PURCHASE 6
4. SURVIVAL AND TERMINATION OF THE RIGHTS AND OBLIGATIONS OF NAI AND BNPLC 7
(A) Status of this Agreement Generally...................................................7
(B) [Intentionally deleted.].............................................................8
(C) [Intentionally deleted.].............................................................8
(D) Automatic Termination of NAI's Rights................................................8
(E) Termination of NAI's Extended Remarketing Rights to Permit a Sale by BNPLC...........8
(F) Payment Only to BNPLC................................................................8
(G) Remedies Under the Other Operative Documents.........................................8
(H) Occupancy by NAI Prior to Closing of a Sale..........................................8
5. SECURITY FOR NAI'S OBLIGATIONS; RETURN OF FUNDS.......................................... 8
6. CERTAIN REMEDIES CUMULATIVE.............................................................. 9
7. ATTORNEYS' FEES AND LEGAL EXPENSES....................................................... 9
8. ESTOPPEL CERTIFICATE..................................................................... 9
9. SUCCESSORS AND ASSIGNS................................................................... 9
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Exhibits and Schedules
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
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PURCHASE AGREEMENT
(PHASE IV - IMPROVEMENTS)
This PURCHASE AGREEMENT (PHASE IV - 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 December ___, 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 IV - Improvements) executed by BNPLC and NAI contemporaneously
with this Agreement. By this reference, the Common Definitions and Provisions
Agreement (Phase IV - 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 A, 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 IV - Improvements)
executed by BNPLC and NAI contemporaneously with this Agreement (the
"IMPROVEMENTS LEASE"), BNPLC is leasing the Improvements to NAI. (All of BNPLC's
interests, including those created by the documents delivered at the closing
under the Existing Contracts, 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 fee estate in
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 4 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"):
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(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 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 IV - 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.
If any Supplemental Payment or other amount payable to BNPLC pursuant to this
subparagraph 1(A) 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.
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(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,
but less the aggregate amounts (if any) of Direct Payments to
Participants and Deposit Taker Losses.
(2) Determination of Third Party Price. The Third
Party Price required of any Applicable Purchaser purchasing from BNPLC
under subparagraph 1(A)(2)(a) 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 IV -
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.
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(D), 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 3 (collectively, the
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"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.
(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 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
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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.
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
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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 IV -
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
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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 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 1 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 3. 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.
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(B) [Intentionally deleted.]
(C) [Intentionally deleted.]
(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). However, 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 3 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 1(A), 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, and the Closing
Certificate, and NAI's 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
8
12
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.
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
9
13
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.]
10
14
IN WITNESS WHEREOF, NAI and BNPLC have caused this Agreement to be
executed as of December ___, 1999.
"NAI"
NETWORK APPLIANCE, INC.
By: ___________________________________
Name: _____________________________
Title: ____________________________
15
[Continuation of signature pages to Purchase Agreement (Phase IV - Improvements)
dated to be effective December __, 1999]
"BNPLC"
BNP LEASING CORPORATION
By: ___________________________________
Xxxxx X. Xxx, Vice President
16
EXHIBIT A
LEGAL DESCRIPTION
The real property located in the City of Sunnyvale, County of Santa Xxxxx, State
of California, described as follows:
TRACT 1:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map lying
within the City of Sunnyvale, being a resubdivision of a portion of Parcel B, as
shown upon that certain Parcel Map recorded in Book 345 of Maps, at page 20,
Santa Xxxxx County Records", which Map was filed for record in the Office of the
Recorder of the County of Santa Xxxxx, State of California, on November 17,
1976, in Book 383 of Maps, at page 35.
TRACT 2:
Together with an easement for vehicles parking over the following described
property:
A 7-foot strip of land for parking easement purposes over a portion of Parcel A,
as said Parcel A is shown on that certain Parcel Map filed for record on
November 10, 1974 in Book 292 of Maps, at page 41, records of said County, and
being more particularly described as follows:
Commencing at the Northeast corner of said Parcel A; thence North
75(degree)8'27" West 500.00 feet along the Northeasterly line of said Parcel A;
thence South 14(degree)51'33" West 7.00 feet; thence parallel to Northeasterly
line of said Parcel A, South 75(degree)08'27" East 500.00 feet to the Southeast
line of said Parcel A, North 14(degree)51'33" East 7.00 feet to the point of
beginning.
APN: 000-00-000
ARB: 110-3-65.02
TRACT 3:
Parcel 1, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of Santa Xxxxx, State of California on July
7, 1994, in Book 657 of Parcel Maps, Page 9.
APN: 110-32-6
ARB: 110-3-x65
TRACT 4:
Parcel 2, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of Santa Xxxxx, State of California on July
7, 1994, in Book 657 of Parcel Maps, Page 9.
APN: 110-32-7
ARB: 110-3-x65
17
TRACT 5:
Parcel 2, as shown on that certain parcel Map which filed for record in the
office of the recorder of the County of Santa Xxxxx, State of California on
October 7, 1998, in Book 708 of Parcel Maps, Pages 51 and 52.
APN: 000-00-00
ARB: 110-03-65.11
18
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, 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 form 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 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.
19
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.
20
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 _____________________________
EXHIBIT B-1 - PAGE 2
21
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 3
22
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.]
The real property located in the City of Sunnyvale, County of Santa Xxxxx, State
of California, described as follows:
TRACT 1:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map lying
within the City of Sunnyvale, being a resubdivision of a portion of Parcel B, as
shown upon that certain Parcel Map recorded in Book 345 of Maps, at page 20,
Santa Xxxxx County Records", which Map was filed for record in the Office of the
Recorder of the County of Santa Xxxxx, State of California, on November 17,
1976, in Book 383 of Maps, at page 35.
TRACT 2:
Together with an easement for vehicles parking over the following described
property:
A 7-foot strip of land for parking easement purposes over a portion of Parcel A,
as said Parcel A is shown on that certain Parcel Map filed for record on
November 10, 1974 in Book 292 of Maps, at page 41, records of said County, and
being more particularly described as follows:
Commencing at the Northeast corner of said Parcel A; thence North
75(degree)8'27" West 500.00 feet along the Northeasterly line of said Parcel A;
thence South 14(degree)51'33" West 7.00 feet; thence parallel to Northeasterly
line of said Parcel A, South 75(degree)08'27" East 500.00 feet to the Southeast
line of said Parcel A, North 14(degree)51'33" East 7.00 feet to the point of
beginning.
APN: 000-00-000
ARB: 110-3-65.02
TRACT 3:
Parcel 1, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of Santa Xxxxx, State of California on July
7, 1994, in Book 657 of Parcel Maps, Page 9.
APN: 110-32-6
ARB: 110-3-x65
TRACT 4:
Parcel 2, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of
EXHIBIT X-0 - XXXX 0
00
Xxxxx Xxxxx, Xxxxx of California on July 7, 1994, in Book 657 of Parcel Maps,
Page 9.
APN: 110-32-7
ARB: 110-3-x65
TRACT 5:
Parcel 2, as shown on that certain parcel Map which filed for record in the
office of the recorder of the County of Santa Xxxxx, State of California on
October 7, 1998, in Book 708 of Parcel Maps, Pages 51 and 52.
APN: 000-00-00
ARB: 110-03-65.11
EXHIBIT B-1 - PAGE 5
24
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 IV - Improvements) incorporated by reference into the Lease
Agreement (Phase IV - Improvements) referenced in the last item of the list
below), including the following matters to the extent the same are still valid
and in force:
TRACT 1 and 2:
1. TAXES for the fiscal year 1999-2000, a lien not yet due or payable.
2. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
3. LIMITATIONS, covenants, conditions, restrictions, reservations, exceptions
or terms, but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained in
the document recorded December 23, 1971 in Book 9640, page 443, Official
Records.
Assignments and Assumption, executed by Xxxxxxx Park Associates, a
partnership to Prudential Insurance Company of America, recorded February
8, 1977 in Book C583, page 685, Official Records.
4. AGREEMENT on the terms and conditions contained therein,
For : Waiver of Construction Credits
Between : Xxxxxxx Park Associates
And : None Shown
Recorded : September 28, 1976 in Book C307, page 346, Official Records.
5. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Construction, reconstruction, operation, repair,
maintenance, replacement, relocation and enlargement of
Public Utilities
Granted to : The City of Sunnyvale, a municipal corporation
Recorded : November 16, 1976 in Book C414, page 105, Official
Records
Affects : as follows:
Being a portion of Parcel B as shown on that certain Parcel Map recorded
August 28, 1974 in Book of Maps, at page 20, Santa Xxxxx County Records; a
strip of land 10 feet in width, measured at right angles lying Northerly
and Easterly of and contiguous to the following described line; beginning
at the
EXHIBIT B-1 - PAGE 6
25
intersection of the Westerly line of Xxxxxxxx Road, 90 feet in width, with
the Northerly line of Parcel A as shown on said Map; thence North
75(degree) 7' 58" West along said Northerly line of Parcel A 450.13 feet;
thence leaving said Northerly line, North 30(degree) 7' 48" West 210.69
feet; thence North 75(degree) 8' 27" West 391.04 feet to a point on the
Easterly line of the proposed Xxxxxx Xxxxx, 00 feet wide, said point being
the terminus of said easement.
6. ANY RIGHTS, interests, or claims adverse to those of the vestee herein
which may exist or arise by reason of the following facts shown on a survey
plat entitled ALTA/ACSM Land Title Survey for: Network Appliance, 0000
Xxxxxxxx Xxxxxx, dated December 2, 1999, prepared by Xxxx & Xxxxxx, Job No.
97208-16.
TRACT 3:
1. TAXES for the fiscal year 1999-2000, a lien not yet due or payable.
2. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
3. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Slope Easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 430, Official
Records
Affects : Easterly 18 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title
Survey for: Network Appliance, 0000 Xxxxxxxx Xxxxxx,
dated December 2, 1999, prepared by Xxxx & Xxxxxx, Job
No. 97208-16.
4. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 450, Official
Records
Affects : Easterly 7 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title
Survey for: Network Appliance, 0000 Xxxxxxxx Xxxxxx,
dated December 2, 1999, prepared by Xxxx & Xxxxxx, Job
No. 97208-16.
5. Covenants, Conditions and Restrictions in the Declaration of Protective
Covenants - Xxxxxxx Industrial Park No. 2) recorded December 23, 1971 in
Book 9640, page 443, Official Records; 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 and
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) related to handicap but does not
discriminate against handicapped persons.
ASSIGNMENT AND ASSUMPTION of the rights, powers, duties, obligations, and
reservations of Xxxxxxx Park Associates, in favor of The Prudential
Insurance Company of America, recorded February 8, 1977 in Book C583, page
685, Official Records.
EXHIBIT B-1 - PAGE 7
26
6. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities
Granted to : City of Sunnyvale
Recorded : November 16, 1976 in Book C414, page 105, Official
Records
Affects : Southerly 10 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title
Survey for: Network Appliance, 0000 Xxxxxxxx Xxxxxx,
dated December 2, 1999, prepared by Xxxx & Xxxxxx, Job
No. 97208-16.
7. LIMITATIONS, covenants, restrictions, reservations, exceptions or terms,
but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained in
the document recorded February 5, 1980 in Book F122, page 460, Official
Records.
8. ANY RIGHTS, interests, or claims adverse to those of the vestee herein
which may exist or arise by reason of the following facts shown on a survey
plat entitled ALTA/ACSM Land Title Survey for: Network Appliance, 0000
Xxxxxxxx Xxxxxx, dated December 2, 1999, prepared by Xxxx & Xxxxxx, Job No.
97208-16.
(a) The fact that a chain link fence extends across the southerly
boundary of said land.
TRACT 4:
9. TAXES for the fiscal year 1999-2000, a lien not yet due or payable.
10. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
11. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Slope Easement
In favor of : City of Sunnyvale
Recorded : November 16, 1976 in Book C414, page 90, Official
Records
Affects : Westerly 5 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title
Survey for: Network Appliance, 0000 Xxxxxxxx Xxxxxx,
dated December 2, 1999, prepared by Xxxx & Xxxxxx, Job
No. 97208-16.
12. EASEMENT recorded on that certain Map for the purposes stated herein and
incidents thereto
Purpose : Public utilities easement
Recorded : July 7, 1994 in Book 657 of Maps, page 9, Official
Records
Affects : Westerly 10 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title
Survey for: Network Appliance, 0000 Xxxxxxxx Xxxxxx,
dated December 2, 1999, prepared by Xxxx & Xxxxxx, Job
No. 97208-16.
13. Covenants, Conditions and Restrictions in the Declaration of Protective
Covenants - Xxxxxxx Industrial Park No. 2) recorded December 23, 1971 in
Book 9640, page 443, Official Records; 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 and
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) related to handicap but does not
discriminate against handicapped persons.
EXHIBIT B-1 - PAGE 8
27
ASSIGNMENT AND ASSUMPTION of the rights, powers, duties, obligations, and
reservations of Xxxxxxx Park Associates, in favor of The Prudential
Insurance Company of America, recorded February 8, 1977 in Book C583, page
685, Official Records.
14. LIMITATIONS, covenants, restrictions, reservations, exceptions or terms,
but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained in
the document recorded February 5, 1980 in Book F122, page 460, Official
Records.
TRACT 5:
15. TAXES for the fiscal year 1999-2000, a lien not yet due or payable.
16. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
17. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Slope Easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 430, Official
Records
Affects : The Northeasterly and Easterly 18 feet, as shown on a
survey plat entitled ALTA/ACSM Land Title Survey for:
Network Appliance, 0000 Xxxxxxxx Xxxxxx, dated December
2, 1999, prepared by Xxxx & Xxxxxx, Job No. 97208-16.
18. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 450, Official
Records
Affects : The Northeasterly and Easterly 7 feet, as shown on a
survey plat entitled ALTA/ACSM Land Title Survey for:
Network Appliance, 0000 Xxxxxxxx Xxxxxx, dated December
2, 1999, prepared by Xxxx & Xxxxxx, Job No. 97208-16.
19. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Sidewalk and sign easement
Recorded : July 7, 1994, in Book 657 Maps, page 9, Official
Records
Affects : The Northerly 2 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance, 0000
Xxxxxxxx Xxxxxx, dated December 2, 1999, prepared by Xxxx &
Xxxxxx, Job No. 97208-16.
20. LIMITATIONS, covenants, restrictions, reservations, exceptions or terms,
but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained in
the document recorded February 5, 1980 in Book F122, page 460, Official
Records.
EXHIBIT B-1 - PAGE 9
28
21. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities easement
Recorded : October 7, 1998, in Book 708 of Maps, pages 51-52,
Official Records
Affects : The Northerly 15 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance, 0000
Xxxxxxxx Xxxxxx, dated December 2, 1999, prepared by Xxxx &
Xxxxxx, Job No. 97208-16.
EXHIBIT B-1 - PAGE 10
29
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 Land. 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.
30
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 __________________________
EXHIBIT B-2 - PAGE 2
31
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 3
32
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.]
Legal Description
The real property located in the City of Sunnyvale, County of Santa Xxxxx, State
of California, described as follows:
TRACT 1:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map lying
within the City of Sunnyvale, being a resubdivision of a portion of Parcel B, as
shown upon that certain Parcel Map recorded in Book 345 of Maps, at page 20,
Santa Xxxxx County Records", which Map was filed for record in the Office of the
Recorder of the County of Santa Xxxxx, State of California, on November 17,
1976, in Book 383 of Maps, at page 35.
TRACT 2:
Together with an easement for vehicles parking over the following described
property:
A 7-foot strip of land for parking easement purposes over a portion of Parcel A,
as said Parcel A is shown on that certain Parcel Map filed for record on
November 10, 1974 in Book 292 of Maps, at page 41, records of said County, and
being more particularly described as follows:
Commencing at the Northeast corner of said Parcel A; thence North
75(degree)8'27" West 500.00 feet along the Northeasterly line of said Parcel A;
thence South 14(degree)51'33" West 7.00 feet; thence parallel to Northeasterly
line of said Parcel A, South 75(degree)08'27" East 500.00 feet to the Southeast
line of said Parcel A, North 14(degree)51'33" East 7.00 feet to the point of
beginning.
APN: 000-00-000
ARB: 110-3-65.02
TRACT 3:
Parcel 1, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of Santa Xxxxx, State of California on July
7, 1994, in Book 657 of Parcel Maps, Page 9.
APN: 110-32-6
ARB: 110-3-x65
TRACT 4:
EXHIBIT B-2 - PAGE 4
33
Parcel 2, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of Santa Xxxxx, State of California on July
7, 1994, in Book 657 of Parcel Maps, Page 9.
APN: 110-32-7
ARB: 110-3-x65
TRACT 5:
Parcel 2, as shown on that certain parcel Map which filed for record in the
office of the recorder of the County of Santa Xxxxx, State of California on
October 7, 1998, in Book 708 of Parcel Maps, Pages 51 and 52.
APN: 000-00-00
ARB: 110-03-65.11
EXHIBIT B-2 - PAGE 5
34
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 IV - Improvements) incorporated by reference into the Lease
Agreement (Phase IV - Improvements referenced in the last item of the list
below), including the following matters to the extent the same are still valid
and in force:
TRACT 1 and 2:
1. TAXES for the fiscal year 1999-2000, a lien not yet due or payable.
2. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
3. LIMITATIONS, covenants, conditions, restrictions, reservations, exceptions
or terms, but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained in
the document recorded December 23, 1971 in Book 9640, page 443, Official
Records.
Assignments and Assumption, executed by Xxxxxxx Park Associates, a
partnership to Prudential Insurance Company of America, recorded February
8, 1977 in Book C583, page 685, Official Records.
4. AGREEMENT on the terms and conditions contained therein,
For : Waiver of Construction Credits
Between : Xxxxxxx Park Associates
And : None Shown
Recorded : September 28, 1976 in Book C307, page 346, Official Records.
5. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Construction, reconstruction, operation, repair, maintenance,
replacement, relocation and enlargement of Public Utilities
Granted to : The City of Sunnyvale, a municipal corporation
Recorded : November 16, 1976 in Book C414, page 105, Official Records
Affects : as follows:
Being a portion of Parcel B as shown on that certain Parcel Map recorded
August 28, 1974 in Book of Maps, at page 20, Santa Xxxxx County Records; a
strip of land 10 feet in width, measured at right angles lying Northerly
and Easterly of and contiguous to the following described line; beginning
at the
EXHIBIT B-2 - PAGE 6
35
intersection of the Westerly line of Xxxxxxxx Road, 90 feet in width, with
the Northerly line of Parcel A as shown on said Map; thence North
75(degree) 7' 58" West along said Northerly line of Parcel A 450.13 feet;
thence leaving said Northerly line, North 30(degree) 7' 48" West 210.69
feet; thence North 75(degree) 8' 27" West 391.04 feet to a point on the
Easterly line of the proposed Xxxxxx Xxxxx, 00 feet wide, said point being
the terminus of said easement.
6. ANY RIGHTS, interests, or claims adverse to those of the vestee herein
which may exist or arise by reason of the following facts shown on a survey
plat entitled ALTA/ACSM Land Title Survey for: Network Appliance, 0000
Xxxxxxxx Xxxxxx, dated December 2, 1999, prepared by Xxxx & Xxxxxx, Job No.
97208-16.
TRACT 3:
22. TAXES for the fiscal year 1999-2000, a lien not yet due or payable.
23. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
24. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Slope Easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 430, Official
Records
Affects : Easterly 18 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title
Survey for: Network Appliance, 0000 Xxxxxxxx Xxxxxx,
dated December 2, 1999, prepared by Xxxx & Xxxxxx,
Job No. 97208-16.
25. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 450, Official
Records
Affects : Easterly 7 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title
Survey for: Network Appliance, 0000 Xxxxxxxx Xxxxxx,
dated December 2, 1999, prepared by Xxxx & Xxxxxx,
Job No. 97208-16.
26. Covenants, Conditions and Restrictions in the Declaration of Protective
Covenants - Xxxxxxx Industrial Park No. 2) recorded December 23, 1971 in
Book 9640, page 443, Official Records; 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 and
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) related to handicap but does not
discriminate against handicapped persons.
ASSIGNMENT AND ASSUMPTION of the rights, powers, duties, obligations, and
reservations of Xxxxxxx Park Associates, in favor of The Prudential
Insurance Company of America, recorded February 8, 1977 in Book C583, page
685, Official Records.
EXHIBIT B-2 - PAGE 7
36
27. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities
Granted to : City of Sunnyvale
Recorded : November 16, 1976 in Book C414, page 105, Official
Records
Affects : Southerly 10 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title
Survey for: Network Appliance, 0000 Xxxxxxxx Xxxxxx,
dated December 2, 1999, prepared by Xxxx & Xxxxxx,
Job No. 97208-16.
28. LIMITATIONS, covenants, restrictions, reservations, exceptions or terms,
but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained in
the document recorded February 5, 1980 in Book F122, page 460, Official
Records.
29. ANY RIGHTS, interests, or claims adverse to those of the vestee herein
which may exist or arise by reason of the following facts shown on a survey
plat entitled ALTA/ACSM Land Title Survey for: Network Appliance, 0000
Xxxxxxxx Xxxxxx, dated December 2, 1999, prepared by Xxxx & Xxxxxx, Job No.
97208-16.
(a) The fact that a chain link fence extends across the
southerly boundary of said land.
TRACT 4:
30. TAXES for the fiscal year 1999-2000, a lien not yet due or payable.
31. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
32. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Slope Easement
In favor of : City of Sunnyvale
Recorded : November 16, 1976 in Book C414, page 90, Official
Records
Affects : Westerly 5 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title
Survey for: Network Appliance, 0000 Xxxxxxxx Xxxxxx,
dated December 2, 1999, prepared by Xxxx & Xxxxxx,
Job No. 97208-16.
33. EASEMENT recorded on that certain Map for the purposes stated herein and
incidents thereto
Purpose : Public utilities easement
Recorded : July 7, 1994 in Book 657 of Maps, page 9, Official
Records
Affects : Westerly 10 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title
Survey for: Network Appliance, 0000 Xxxxxxxx Xxxxxx,
dated December 2, 1999, prepared by Xxxx & Xxxxxx,
Job No. 97208-16.
34. Covenants, Conditions and Restrictions in the Declaration of Protective
Covenants - Xxxxxxx Industrial Park No. 2) recorded December 23, 1971 in
Book 9640, page 443, Official Records; 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 and
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) related to handicap but does not
discriminate against handicapped persons.
EXHIBIT B-2 - PAGE 8
37
ASSIGNMENT AND ASSUMPTION of the rights, powers, duties, obligations, and
reservations of Xxxxxxx Park Associates, in favor of The Prudential
Insurance Company of America, recorded February 8, 1977 in Book C583, page
685, Official Records.
35. LIMITATIONS, covenants, restrictions, reservations, exceptions or terms,
but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained in
the document recorded February 5, 1980 in Book F122, page 460, Official
Records.
TRACT 5:
36. TAXES for the fiscal year 1999-2000, a lien not yet due or payable.
37. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
38. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Slope Easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 430, Official
Records
Affects : The Northeasterly and Easterly 18 feet, as shown on a
survey plat entitled ALTA/ACSM Land Title Survey for:
Network Appliance, 0000 Xxxxxxxx Xxxxxx, dated December
2, 1999, prepared by Xxxx & Xxxxxx, Job No. 97208-16.
39. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 450, Official
Records
Affects : The Northeasterly and Easterly 7 feet, as shown on a
survey plat entitled ALTA/ACSM Land Title Survey for:
Network Appliance, 1345 Avenue, dated December 2, 1999,
prepared by Xxxx & Xxxxxx, Job No. 97208-16.
40. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Sidewalk and sign easement
Recorded : July 7, 1994, in Book 657 of Maps, page 9, Official
Records
Affects : The Northerly 2 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance, 0000
Xxxxxxxx Xxxxxx, dated December 2, 1999, prepared by Xxxx &
Xxxxxx, Job No. 97208-16.
41. LIMITATIONS, covenants, restrictions, reservations, exceptions or terms,
but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained in
the document recorded February 5, 1980 in Book F122, page 460, Official
Records.
EXHIBIT B-2 - PAGE 9
38
42. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities easement
Recorded : October 7, 1998, in Book 708 of Maps, pages 51-52,
Official Records
Affects : The Northerly 15 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance, 0000
Xxxxxxxx Xxxxxx, dated December 2, 1999, prepared by Xxxx &
Xxxxxx, Job No. 97208-16.
EXHIBIT B-2 - PAGE 10
39
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.
40
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 ___________________________
EXHIBIT B-3 - PAGE 2
41
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 3
42
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.]
The real property located in the City of Sunnyvale, County of Santa Xxxxx, State
of California, described as follows:
TRACT 1:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map lying
within the City of Sunnyvale, being a resubdivision of a portion of Parcel B, as
shown upon that certain Parcel Map recorded in Book 345 of Maps, at page 20,
Santa Xxxxx County Records", which Map was filed for record in the Office of the
Recorder of the County of Santa Xxxxx, State of California, on November 17,
1976, in Book 383 of Maps, at page 35.
TRACT 2:
Together with an easement for vehicles parking over the following described
property:
A 7-foot strip of land for parking easement purposes over a portion of Parcel A,
as said Parcel A is shown on that certain Parcel Map filed for record on
November 10, 1974 in Book 292 of Maps, at page 41, records of said County, and
being more particularly described as follows:
Commencing at the Northeast corner of said Parcel A; thence North
75[degrees]8'27" West 500.00 feet along the Northeasterly line of said Parcel A;
thence South 14[degrees]51'33" West 7.00 feet; thence parallel to Northeasterly
line of said Parcel A, South 75[degrees]08'27" East 500.00 feet to the Southeast
line of said Parcel A, North 14[degrees]51'33" East 7.00 feet to the point of
beginning.
APN: 000-00-000
ARB: 110-3-65.02
TRACT 3:
Parcel 1, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of Santa Xxxxx, State of California on July
7, 1994, in Book 657 of Parcel Maps, Page 9.
APN: 110-32-6
ARB: 110-3-x65
TRACT 4:
Parcel 2, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of Santa Xxxxx, State of California on July
7, 1994, in Book 657 of Parcel Maps, Page 9.
EXHIBIT B-3 - PAGE 4
43
APN: 110-32-7
ARB: 110-3-x65
TRACT 5:
Parcel 2, as shown on that certain parcel Map which filed for record in the
office of the recorder of the County of Santa Xxxxx, State of California on
October 7, 1998, in Book 708 of Parcel Maps, Pages 51 and 52.
APN: 000-00-00
ARB: 110-03-65.11
EXHIBIT B-3 - PAGE 5
44
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 IV - Improvements) incorporated by reference into the Lease
Agreement (Phase IV - Improvements) referenced in the last item of the list
below]), including the following matters to the extent the same are still valid
and in force:
TRACT 1 and 2:
1. TAXES for the fiscal year 1999-2000, a lien not yet due or payable.
2. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
3. LIMITATIONS, covenants, conditions, restrictions, reservations, exceptions
or terms, but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained in
the document recorded December 23, 1971 in Book 9640, page 443, Official
Records.
Assignments and Assumption, executed by Xxxxxxx Park Associates, a
partnership to Prudential Insurance Company of America, recorded February
8, 1977 in Book C583, page 685, Official Records.
4. AGREEMENT on the terms and conditions contained therein,
For : Waiver of Construction Credits
Between : Xxxxxxx Park Associates
And : None Shown
Recorded : September 28, 1976 in Book C307, page 346, Official Records.
5. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Construction, reconstruction, operation, repair, maintenance,
replacement, relocation and enlargement of Public Utilities
Granted to : The City of Sunnyvale, a municipal corporation
Recorded : November 16, 1976 in Book C414, page 105, Official Records
Affects : as follows:
Being a portion of Parcel B as shown on that certain Parcel Map recorded
August 28, 1974 in Book of Maps, at page 20, Santa Xxxxx County Records; a
strip of land 10 feet in width, measured at right angles lying Northerly
and Easterly of and contiguous to the following described line; beginning
at the
EXHIBIT B-3 - PAGE 6
45
intersection of the Westerly line of Xxxxxxxx Road, 90 feet in width, with
the Northerly line of Parcel A as shown on said Map; thence North
75[degrees]7'58" West along said Northerly line of Parcel A 450.13 feet;
thence leaving said Northerly line, North 30[degrees]7'48" West 210.69
feet; thence North 75[degrees]8'27" West 391.04 feet to a point on the
Easterly line of the proposed Xxxxxx Xxxxx, 00 feet wide, said point being
the terminus of said easement.
6. ANY RIGHTS, interests, or claims adverse to those of the vestee herein
which may exist or arise by reason of the following facts shown on a survey
plat entitled ALTA/ACSM Land Title Survey for: Network Appliance, 0000
Xxxxxxxx Xxxxxx, dated December 2, 1999, prepared by Xxxx & Xxxxxx, Job No.
97208-16.
TRACT 3:
43. TAXES for the fiscal year 1999-2000, a lien not yet due or payable.
44. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
45. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Slope Easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 430, Official
Records
Affects : Easterly 18 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title
Survey for: Network Appliance, 0000 Xxxxxxxx Xxxxxx,
dated December 2, 1999, prepared by Xxxx & Xxxxxx, Job
No. 97208-16.
46. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 450, Official
Records
Affects : Easterly 7 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title
Survey for: Network Appliance, 0000 Xxxxxxxx Xxxxxx,
dated December 2, 1999, prepared by Xxxx & Xxxxxx, Job
No. 97208-16.
47. Covenants, Conditions and Restrictions in the Declaration of Protective
Covenants - Xxxxxxx Industrial Park No. 2) recorded December 23, 1971 in
Book 9640, page 443, Official Records; 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 and
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) related to handicap but does not
discriminate against handicapped persons.
ASSIGNMENT AND ASSUMPTION of the rights, powers, duties, obligations, and
reservations of Xxxxxxx Park Associates, in favor of The Prudential
Insurance Company of America, recorded February 8, 1977 in Book C583, page
685, Official Records.
EXHIBIT B-3 - PAGE 7
46
48. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities
Granted to : City of Sunnyvale
Recorded : November 16, 1976 in Book C414, page 105, Official
Records
Affects : Southerly 10 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title
Survey for: Network Appliance, 0000 Xxxxxxxx Xxxxxx,
dated December 2, 1999, prepared by Xxxx & Xxxxxx, Job
No. 97208-16.
49. LIMITATIONS, covenants, restrictions, reservations, exceptions or terms,
but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained in
the document recorded February 5, 1980 in Book F122, page 460, Official
Records.
50. ANY RIGHTS, interests, or claims adverse to those of the vestee herein
which may exist or arise by reason of the following facts shown on a survey
plat entitled ALTA/ACSM Land Title Survey for: Network Appliance, 0000
Xxxxxxxx Xxxxxx, dated December 2, 1999, prepared by Xxxx & Xxxxxx, Job No.
97208-16.
(a) The fact that a chain link fence extends across the
southerly boundary of said land.
TRACT 4:
51. TAXES for the fiscal year 1999-2000, a lien not yet due or payable.
52. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
53. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Slope Easement
In favor of : City of Sunnyvale
Recorded : November 16, 1976 in Book C414, page 90, Official
Records
Affects : Westerly 5 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title
Survey for: Network Appliance, 0000 Xxxxxxxx Xxxxxx,
dated December 2, 1999, prepared by Xxxx & Xxxxxx, Job
No. 97208-16.
54. EASEMENT recorded on that certain Map for the purposes stated herein and
incidents thereto
Purpose : Public utilities easement
Recorded : July 7, 1994 in Book 657 of Maps, page 9, Official
Records
Affects : Westerly 10 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title
Survey for: Network Appliance, 0000 Xxxxxxxx Xxxxxx,
dated December 2, 1999, prepared by Xxxx & Xxxxxx, Job
No. 97208-16.
55. Covenants, Conditions and Restrictions in the Declaration of Protective
Covenants - Xxxxxxx Industrial Park No. 2) recorded December 23, 1971 in
Book 9640, page 443, Official Records; 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 and
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) related to handicap but does not
discriminate against handicapped persons.
EXHIBIT B-3 - PAGE 8
47
ASSIGNMENT AND ASSUMPTION of the rights, powers, duties, obligations, and
reservations of Xxxxxxx Park Associates, in favor of The Prudential
Insurance Company of America, recorded February 8, 1977 in Book C583, page
685, Official Records.
56. LIMITATIONS, covenants, restrictions, reservations, exceptions or terms,
but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained in
the document recorded February 5, 1980 in Book F122, page 460, Official
Records.
TRACT 5:
57. TAXES for the fiscal year 1999-2000, a lien not yet due or payable.
58. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
59. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Slope Easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 430, Official
Records
Affects : The Northeasterly and Easterly 18 feet, as shown on a
survey plat entitled ALTA/ACSM Land Title Survey for:
Network Appliance, 0000 Xxxxxxxx Xxxxxx, dated December
2, 1999, prepared by Xxxx & Xxxxxx, Job No. 97208-16.
60. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 450, Official
Records
Affects : The Northeasterly and Easterly 7 feet, as shown on a
survey plat entitled ALTA/ACSM Land Title Survey for:
Network Appliance, 0000 Xxxxxxxx Xxxxxx, dated December
2, 1999, prepared by Xxxx & Xxxxxx, Job No. 97208-16.
61. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Sidewalk and sign easement
Recorded : July 7, 1994, in Book 657 of Maps, page 9, Official
Records
Affects : The Northerly 2 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance, 0000
Xxxxxxxx Xxxxxx, dated December 2, 1999, prepared by Xxxx &
Xxxxxx, Job No. 97208-16.
62. LIMITATIONS, covenants, restrictions, reservations, exceptions or terms,
but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained in
the document recorded February 5, 1980 in Book F122, page 460, Official
Records.
EXHIBIT B-3 - PAGE 9
48
63. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities easement
Recorded : October 7, 1998, in Book 708 of Maps, pages 51-52,
Official Records
Affects : The Northerly 15 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance, 0000
Xxxxxxxx Xxxxxx, dated December 2, 1999, prepared by Xxxx &
Xxxxxx, Job No. 97208-16.
EXHIBIT B-3 - PAGE 10
49
EXHIBIT C
XXXX OF SALE AND ASSIGNMENT
Reference is made to: (1) that certain Purchase Agreement (Phase IV -
Improvements) between BNP Leasing Corporation ("ASSIGNOR") and Network
Appliance, Inc., dated as of December ___, 1999, (the "PURCHASE AGREEMENT") and
(2) that certain Lease Agreement (Phase IV - Improvements) between Assignor, as
landlord, and Network Appliance, Inc., as tenant, dated as of December ___, 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 IV - 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
50
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 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
51
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
52
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.]
The real property located in the City of Sunnyvale, County of Santa Xxxxx, State
of California, described as follows:
TRACT 1:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map lying
within the City of Sunnyvale, being a resubdivision of a portion of Parcel B, as
shown upon that certain Parcel Map recorded in Book 345 of Maps, at page 20,
Santa Xxxxx County Records", which Map was filed for record in the Office of the
Recorder of the County of Santa Xxxxx, State of California, on November 17,
1976, in Book 383 of Maps, at page 35.
TRACT 2:
Together with an easement for vehicles parking over the following described
property:
A 7-foot strip of land for parking easement purposes over a portion of Parcel A,
as said Parcel A is shown on that certain Parcel Map filed for record on
November 10, 1974 in Book 292 of Maps, at page 41, records of said County, and
being more particularly described as follows:
Commencing at the Northeast corner of said Parcel A; thence North
75[degrees]8'27" West 500.00 feet along the Northeasterly line of said Parcel A;
thence South 14[degrees]51'33" West 7.00 feet; thence parallel to Northeasterly
line of said Parcel A, South 75[degrees]08'27" East 500.00 feet to the Southeast
line of said Parcel A, North 14[degrees]51'33" East 7.00 feet to the point of
beginning.
APN: 000-00-000
ARB: 110-3-65.02
TRACT 3:
Parcel 1, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of Santa Xxxxx, State of California on July
7, 1994, in Book 657 of Parcel Maps, Page 9.
APN: 110-32-6
ARB: 110-3-x65
EXHIBIT C - PAGE 4
53
TRACT 4:
Parcel 2, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of Santa Xxxxx, State of California on July
7, 1994, in Book 657 of Parcel Maps, Page 9.
APN: 110-32-7
ARB: 110-3-x65
TRACT 5:
Parcel 2, as shown on that certain parcel Map which filed for record in the
office of the recorder of the County of Santa Xxxxx, State of California on
October 7, 1998, in Book 708 of Parcel Maps, Pages 51 and 52.
APN: 000-00-00
ARB: 110-03-65.11
EXHIBIT C - PAGE 5
54
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 IV - Improvements) incorporated by reference into the Purchase Agreement
(Phase IV- Improvements) between BNPLC and Network Appliance, Inc. dated
December ___, 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: ________________________________
55
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]
56
CORPORATE RESOLUTIONS OF
BNP LEASING CORPORATION
WHEREAS, pursuant to that certain Purchase Agreement (Phase IV -
Improvements) (herein called the "Purchase Agreement") dated as of December ___,
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
57
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: ________________________________
