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EXHIBIT 10.11
PURCHASE AGREEMENT
(IMPROVEMENTS)
BETWEEN
BNP LEASING CORPORATION
("BNPLC")
AND
EXTREME NETWORKS, INC.
("Extreme")
June 1, 2000
(Santa Clara, California)
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TABLE OF CONTENTS
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Page
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1. EXTREME'S OPTIONS AND OBLIGATIONS ON THE DESIGNATED SALE DATE............................................ 1
(A) Right to Purchase; Initial Remarketing Rights and Obligation........................................ 1
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(B) Determinations Concerning Price..................................................................... 3
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(C) Designation of the Purchaser........................................................................ 4
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(D) Effect of the Purchase Option and Extreme's Initial Remarketing Rights and Obligations.............. 4
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on Subsequent Title Encumbrances
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(E) Security for the Purchase Option and Extreme's Initial Remarketing Rights and Obligations........... 4
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(F) Delivery of Books and Records If BNPLC Retains the Property......................................... 5
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2. EXTREME'S RIGHTS AND OPTIONS AFTER THE DESIGNATED SALE DATE.............................................. 5
(A) Extreme's Extended Right to Remarket................................................................ 5
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(B) Definition of Minimum Extended Remarketing Price.................................................... 6
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(C) BNPLC's Right to Sell............................................................................... 6
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(D) Extreme's Right to Excess Sales Proceeds............................................................ 7
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(E) Permitted Transfers During Extreme's Extended Remarketing Period.................................... 7
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3. TERMS OF CONVEYANCE UPON PURCHASE........................................................................ 7
4. SURVIVAL AND TERMINATION OF THE RIGHTS AND OBLIGATIONS OF EXTREME AND BNPLC.............................. 8
(A) Status of this Agreement Generally.................................................................. 8
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(B) Automatic Termination of Extreme's Rights........................................................... 8
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(C) Termination of Extreme's Extended Remarketing Rights to Permit a Sale by BNPLC...................... 9
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(D) Payment Only to BNPLC............................................................................... 9
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(E) Remedies Under the Other Operative Documents........................................................ 9
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(F) Occupancy by Extreme Prior to Closing of a Sale..................................................... 9
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5. SECURITY FOR EXTREME'S OBLIGATIONS; RETURN OF FUNDS...................................................... 9
6. CERTAIN REMEDIES CUMULATIVE.............................................................................. 10
7. ATTORNEYS' FEES AND LEGAL EXPENSES....................................................................... 10
8. ESTOPPEL CERTIFICATE..................................................................................... 10
9. SUCCESSORS AND ASSIGNS................................................................................... 10
Exhibits and Schedules
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Exhibit A..................................................... Legal Description
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Exhibit B..................................................... Grant Deed Form Requirements
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Exhibit C..................................................... Xxxx of Sale and Assignment
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Exhibit D..................................................... Acknowledgment and Disclaimer
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Exhibit E..................................................... Secretary's Certificate
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Exhibit F..................................................... Certificate Concerning Tax Withholding
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PURCHASE AGREEMENT
(IMPROVEMENTS)
This PURCHASE AGREEMENT (IMPROVEMENTS) (this "Agreement") is made and dated
as of June 1, 2000 (the "Effective Date") by and between BNP LEASING
CORPORATION, a Delaware corporation ("BNPLC"), and EXTREME NETWORKS, INC., a
Delaware corporation ("Extreme").
RECITALS
Contemporaneously with the execution of this Agreement, BNPLC and Extreme
are executing a Common Definitions and Provisions Agreement (Improvements) dated
as of the Effective Date (the "Common Definitions and Provisions Agreement
(Improvements)"), which by this reference is incorporated into and made a part
of this Agreement for all purposes. As used in this Agreement, capitalized terms
defined in the Common Definitions and Provisions Agreement (Improvements) and
not otherwise defined in this Agreement are intended to have the respective
meanings assigned to them in the Common Definitions and Provisions Agreement
(Improvements).
Pursuant to the Acquisition Contract, which covers the Land described in
Exhibit A, BNPLC is acquiring the Land and any appurtenances thereto and the
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existing Improvements thereon from Seller contemporaneously with the execution
of this Agreement. Pursuant to the Lease Agreement (Improvements) executed by
BNPLC and Extreme contemporaneously with this Agreement (the "Improvements
Lease"), BNPLC is leasing the Improvements on the Land to Extreme and agreeing
to provide funding for renovations, remodeling, improvements and furnishing of
the Improvements, all of which will be owned by BNPLC. (All of BNPLC's
interests, including those created by the documents delivered at the closing
under the Acquisition Contract, in the Improvements and in all other real and
personal property from time to time covered by the Improvements Lease and
included within the "Property" as defined therein are hereinafter collectively
referred to as the "Property". The Property does not include the Land itself, it
being understood that the Other Purchase Agreement constitutes a separate
agreement providing for the possible sale of the Land and the appurtenances
thereto, and only the Land and the appurtenances thereto, from BNPLC to Extreme
or a third party designated by Extreme.)
Extreme and BNPLC have reached agreement upon the terms and conditions upon
which Extreme will purchase or arrange for the purchase of the Property, and by
this Agreement they desire to evidence such agreement.
AGREEMENTS
1. EXTREME'S OPTIONS AND OBLIGATIONS ON THE DESIGNATED SALE DATE.
(A) Right to Purchase; Initial Remarketing Rights and Obligation.
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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) Extreme shall have the right (the "Purchase Option") to
purchase or cause an Affiliate of Extreme 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 Extreme nor an Affiliate of Extreme 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 Extreme shall have the following rights and
obligations (collectively, "Extreme's Initial Remarketing Rights and
Obligations"):
(a) First, Extreme shall have the right (but not the
obligation) to cause an Applicable Purchaser who is not an Affiliate
of Extreme 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 Extreme 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, Extreme 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 Extreme 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 Extreme not to
exercise its right to purchase or cause an Applicable Purchaser to
purchase from BNPLC as described above) neither Extreme 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 Extreme 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) Extreme 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 (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,
Extreme shall pay interest on the past due amount computed at the Default Rate
from the Designated Sale Date.
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(B) Determinations Concerning Price.
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(1) Determination of the Break Even Price. As used herein,
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"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
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any) of Direct Payments to Participants and Deposit Taker Losses.
(2) Determination of Third Party Price. The Third Party Price
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required of any Applicable Purchaser purchasing from BNPLC under
subparagraph 1.(A)(2)(a) will be determined as follows:
(a) Extreme 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 Extreme 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 Extreme 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 Extreme, objecting to the Third Party Price so specified by
Extreme. 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 Extreme 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 Extreme 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
selected by 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 (Improvements), Extreme
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 Extreme pursuant to
subparagraph 1(A)(2)(b) or pursuant to subparagraph 2.(D), then Extreme
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
Extreme, 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 Extreme.
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(C) Designation of the Purchaser. To give BNPLC the opportunity
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before the Designated Sale Date to prepare the deed and other documents that
BNPLC must tender pursuant to Paragraph 3 (collectively, the "Sale Closing
Documents"), Extreme 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 Extreme set forth in subparagraph 1(A). If for any reason Extreme
fails to so specify a party who will in accordance with the terms and conditions
set forth herein purchase the Property (be it Extreme itself, an Affiliate of
Extreme 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 Extreme finally does so specify a
party, but such postponement will not relieve or postpone the obligation of
Extreme 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 Extreme's Initial Remarketing
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Rights and Obligations on Subsequent Title Encumbrances. Any conveyance of the
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Property to Extreme 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 Extreme 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 Extreme's Initial Remarketing Rights and Obligations. Further,
Extreme 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 Extreme 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 Extreme 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
Extreme's rights under this Agreement, including its rights under this
subparagraph.
(E) Security for the Purchase Option and Extreme's Initial
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Remarketing Rights and Obligations. To secure BNPLC's obligation to sell the
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Property pursuant to Paragraph 1.(A) and to pay any damages to Extreme 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 Extreme 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. Extreme may enforce
such lien and security interest judicially after any such breach by BNPLC, but
not otherwise. Contemporaneously with the execution of this Agreement, Extreme
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 Extreme 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.
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Unless Extreme or its Affiliate or another Applicable Purchaser purchases the
Property pursuant to Paragraph 1.(A), promptly after the Designated Sale Date
Extreme shall deliver to BNPLC copies of all plans and specifications for the
Property prepared in connection with any Initial Renovations made as
contemplated by the Improvements Lease, together with all other books and
records of Extreme 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. EXTREME'S RIGHTS AND OPTIONS AFTER THE DESIGNATED SALE DATE.
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(A) Extreme's Extended Right to Remarket. During the two years
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following the Designated Sale Date ("Extreme's Extended Remarketing Period"),
Extreme shall have the right ("Extreme's Extended Remarketing Right") to cause
an Applicable Purchaser who is not an Affiliate of Extreme to purchase the
Property for a cash purchase price not below the Minimum Extended Remarketing
Price (as defined below). Extreme'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 or within the thirty days thereafter as provided in
subparagraph 4.(B).
(2) No Voluntary Retention of the Property shall have occurred
as described in subparagraph 1.(A)(2)(a).
(3) Extreme's Extended Remarketing Right shall not have been
terminated pursuant to subparagraph 4.(B) below because of Extreme's
failure to make any Supplemental Payment required on the Designated Sale
Date.
(4) Extreme's Extended Remarketing Right shall not have been
terminated by BNPLC pursuant to subparagraph 4.(C) 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 date upon which BNPLC is
to convey the Property to an Applicable Purchaser because of Extreme's
exercise of Extreme's Extended Remarketing Right (the "Final Sale Date"),
Extreme shall have notified BNPLC of (x) the date proposed by Extreme 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,
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the "Minimum Extended Remarketing Price" means, subject to reduction as provided
in subparagraph 2.(C) below, 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
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(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
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plus
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(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, 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
5
amount as of the Final Sale Date), then Extreme may elect to exclude any such
Losses from the computation of the Minimum Extended Remarketing Price by
providing to BNPLC, for the benefit of BNPLC and other Interested Parties, a
written agreement to indemnify and defend BNPLC and other Interested Parties
against such Losses. To be effective hereunder for purposes of reducing the
Minimum Extended Remarketing Price (and, thus, the Break Even Price), any such
written indemnity must be fully executed and delivered by Extreme on or prior to
the Final Sale Date, must include provisions comparable to subparagraphs
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5(c)(ii), (iii), (iv) and (v) of the Improvements Lease and otherwise must be in
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form and substance satisfactory to BNPLC.
(C) BNPLC's Right to Sell. After the Designated Sale Date, if the
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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 Extreme'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 Extreme 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) Extreme's Extended Remarketing Right may be
terminated pursuant to subparagraph 4.(C) of this Agreement unless Extreme
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.
For a period of ninety days (but only ninety days) after the date of any Third
Party Sale Notice, the Minimum Extended Remarketing Price shall be limited in
amount so that it does not exceed the Third Party Target Price specified by
BNPLC therein. Accordingly, if BNPLC has delivered a Third Party Sale Notice
specifying a Third Party Target Price below the Minimum Extended Remarketing
Price calculated as provided in subparagraph 2.(B) within the ninety days prior
to the Final Sale Date for any sale to an Applicable Purchaser by BNPLC pursuant
to this Paragraph 2, then the Minimum Extended Remarketing Price applicable to
such sale shall be reduced to the amount of the Third Party Target Price so
specified. Such a reduction, however, will apply only to a sale to an Applicable
Purchaser actually consummated within the ninety days after the date of the
applicable Third Party Sale Notice.
(D) Extreme's Right to Excess Sales Proceeds. If the cash price
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actually paid by any third party purchasing the Property from BNPLC during
Extreme'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 (calculated as provided in subparagraph
2.(B), without reduction pursuant to subparagraph 2.(C)), then Extreme 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 Extreme to BNPLC under
any of the Operative Documents.
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(E) Permitted Transfers During Extreme's Extended Remarketing Period.
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Any "Permitted Transfer" described in clause (6) of the definition thereof in
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the Common Definitions and Provisions Agreement (Improvements) to an Affiliate
of BNPLC or that covers BNPLC's entire interest in the Improvements will be
subject to Extreme's Extended Remarketing Right if, at the time of the Permitted
Transfer, Extreme'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 Extreme'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 Extreme's Extended
Remarketing Right, though following the conveyance of the lesser estate,
Extreme'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 Extreme or an Applicable Purchaser pursuant to this
Agreement, BNPLC must, subject to any postponement permitted by subparagraph
1.(C), promptly after the tender of the purchase price and any other payments to
BNPLC required pursuant to Paragraph 1 or Paragraph 2 (as applicable), and this
Paragraph 3 (as applicable), convey all of BNPLC's right, title and interest in
the Improvements and other Property to Extreme 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
Extreme 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 Extreme 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
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Exhibit B, (2) a Xxxx of Sale and Assignment in the form attached as Exhibit C,
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(3) an Acknowledgment of Disclaimer of Representations and Warranties, in the
form attached as Exhibit D, which Extreme or the Applicable Purchaser must
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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
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attached as Exhibit F. If for any reason BNPLC fails to tender the Sale Closing
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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 Extreme.
4 SURVIVAL AND TERMINATION OF THE RIGHTS AND OBLIGATIONS OF EXTREME AND
BNPLC.
(A) Status of this Agreement Generally. Except as expressly provided
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herein, this Agreement shall not terminate; nor shall Extreme have any right to
terminate this Agreement; nor shall Extreme 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 Extreme 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 Extreme will receive
any remaining Escrowed Proceeds yet to be applied as provided in the
Improvements Lease that may result from such damage if Extreme 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 Extreme 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 Extreme purchases the Property and the
Escrowed Proceeds as herein provided), (iii) the prohibition, limitation or
restriction of Extreme'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 Extreme or any party claiming under Extreme by paramount title or
otherwise, (v) Extreme'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
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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 Extreme hereunder
(including the obligation to make any Supplemental Payment as provided in
Paragraph 1) shall be separate and independent covenants and agreements from
BNPLC's obligations under this Agreement or any other agreement between BNPLC
and Extreme; 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 Extreme of any
right Extreme may have at law or in equity to the following remedies, whether
because of BNPLC's failure to remove a Lien Removable by BNPLC or because of any
other default by BNPLC under this Agreement: (i) the recovery of monetary
damages, (ii) injunctive relief in case of the violation, or attempted or
threatened violation, by BNPLC of any of the express covenants, agreements,
conditions or provisions of this Agreement which are binding upon BNPLC, or
(iii) a decree compelling performance by BNPLC of any of the express covenants,
agreements, conditions or provisions of this Agreement which are binding upon
BNPLC.
(B) Automatic Termination of Extreme's Rights. Without limiting
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BNPLC's right to enforce Extreme's obligation to pay any Supplemental Payment or
other amounts required by this Agreement, the rights of Extreme (to be
distinguished from the obligations of Extreme) included in Extreme's Initial
Remarketing Rights and Obligations, the Purchase Option and Extreme's Extended
Remarketing Rights shall all terminate automatically if Extreme 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).
Notwithstanding anything in this subparagraph to the contrary, however, even
after a failure to pay any required Supplemental Payment on the Designated Sale
Date, Extreme 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 Extreme.
(C) Termination of Extreme'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 Extreme as described in subparagraph 2.(C)(2), BNPLC
may terminate Extreme'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 Extreme's Extended Remarketing Rights.
(D) Payment Only to BNPLC. All amounts payable under this Agreement
---------------------
by Extreme 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 Extreme must pay all amounts then due to
BNPLC under the Land Lease or other Operative Documents. This subparagraph shall
not, however, be construed to limit Extreme's right to require the deduction of
Direct Payments to Participants and Deposit Taker Losses in the calculation of
the Break Even Price as provided in subparagraph 1.(B)(1).
In additional to the payments required under subparagraph 1.(A), on the
Designated Sale Date Extreme must pay all amounts then due to BNPLC under the
Improvements Lease or other Operative Documents.
(E) 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 Land Lease or other Operative Documents shall terminate
Extreme's rights or obligations hereunder, all of which shall survive BNPLC's
exercise of remedies under the other Operative Documents. Extreme acknowledges
that the consideration for this Agreement is separate and independent of the
consideration for the Land Lease and the Closing
8
Certificate, and Extreme's obligations hereunder shall not be affected or
impaired by any event or circumstance that would excuse Extreme from performance
of its obligations under such other Operative Documents.
(F) Occupancy by Extreme Prior to Closing of a Sale. Prior to the
-----------------------------------------------
closing of any sale of the Property to Extreme or an Applicable Purchaser
hereunder, Extreme's occupancy of the Land and its use of the Property shall
continue to be subject to the terms and conditions of the Land Lease, including
the terms setting forth Extreme's obligation to pay rent, prior to any
termination or expiration of the Land Lease pursuant to its express terms and
conditions.
5 SECURITY FOR EXTREME'S OBLIGATIONS; RETURN OF FUNDS. Extreme's
obligations under this Agreement are secured by the Pledge Agreement, reference
to which is hereby made for a description of the Collateral covered thereby and
the rights and remedies provided to BNPLC thereby. Although the collateral agent
appointed for BNPLC as provided in the Pledge Agreement shall be entitled to
hold all Collateral as security for the full and faithful performance by Extreme
of Extreme'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 Extreme breach this
Agreement. If Extreme 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 Extreme, 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 Extreme. 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 Extreme notwithstanding any prior actual or attempted
conveyance or assignment by Extreme, 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
Extreme of any such Collateral returned to Extreme; and any such return of
Collateral to Extreme 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 Extreme 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
Extreme, voluntary or otherwise, of any right to receive the same; BNPLC shall
not be responsible for the proper distribution or application by Extreme or any
Applicable Purchaser of any such Escrowed Proceeds paid over to Extreme or the
Applicable Purchaser; and any such payment of Escrowed Proceeds to Extreme 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.
9
8 ESTOPPEL CERTIFICATE. Upon request by BNPLC, Extreme 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 Extreme 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 Extreme and BNPLC and their respective
permitted successors and assigns and shall inure to the benefit of Extreme and
BNPLC and all permitted transferees, mortgagees, successors and assignees of
Extreme and BNPLC with respect to the Property; provided, that (A) the rights of
BNPLC hereunder shall not pass to Extreme or any Applicable Purchaser or any
subsequent owner claiming through Extreme or an Applicable Purchaser, (B) BNPLC
shall not assign this Agreement or any rights hereunder except pursuant to a
Permitted Transfer, and (C) Extreme shall not assign this Agreement or any
rights hereunder without the prior written consent of BNPLC.
[Signature pages follow.]
10
IN WITNESS WHEREOF, Extreme and BNPLC have caused this Agreement to be
executed as of June 1, 2000.
"Extreme"
EXTREME NETWORKS, INC.
By: ___________________________
Name:______________________
Title:_____________________
[Continuation of signature pages to Purchase Agreement (Land) dated to be
effective June 1, 2000]
"BNPLC"
BNP LEASING CORPORATION
By: ______________________________
Xxxxx X. Xxx, Vice President
Exhibit A
---------
LEGAL DESCRIPTION
All that certain real property situated in the City of Santa Xxxxx, County of
Santa Xxxxx, State of California, described as follows:
Being a portion of that certain 24.740 acre parcel as shown on that certain
Record of Survey filed in Book 447 of Maps, at Page 33, Santa Xxxxx County
Records, described as follows:
Beginning at the Northwest corner of said 24.740 acre parcel; thence from said
point of beginning along the Northerly line of said 24.470 acre parcel N. 89
degrees 25 minutes 00 seconds E. 995.17 feet; thence leaving said Northerly
lines S. 0 degrees 10 minutes 00 seconds W. 705.02 feet to a point in the
Southerly line of said 24.740 acre parcel; thence along said Southerly line the
following courses: S. 89 degrees 25 minutes 00 seconds W. 181.82 feet; S. 2.00
feet and S. 89 degrees 25 minutes 00 seconds W. 760.70 feet; thence leaving said
Southerly line along a tangent curve to the right, with a radius of 50.00 feet,
through a central angle of 90 degrees 34 minutes 33 seconds for an arc length of
79.4 feet to a point in the Westerly line of said 24.470 acre parcel; thence
along said Westerly line N. 0 degrees 00 minutes 27 seconds W. 656.49 feet to
the point of beginning.
Exhibit B
---------
Requirements Re: Form of Grant Deed and Ground Lease
The form of deed to be used to convey BNPLC's interest in the Land to Extreme or
an Applicable Purchaser will depend upon whether BNPLC's interest in the
Improvements 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
Extreme 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
Improvements) are being consummated at the same time and to the same party, then
the one deed in form attached as Exhibit B-1 will be used to convey both.
-----------
If, however, a sale of BNPLC's interest in the Improvements 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 Land
under this Agreement, then BNPLC's interest in the Land will be conveyed by a
deed in the from attached as Exhibit B-2, and BNPLC and the grantee under such
deed shall, as a condition to BNPLC's obligation to deliver the deed, execute
and deliver a Ground Lease covering the Land in the form attached hereto as
Exhibit B-3.
-----------
Finally, BNPLC's interest in the Land will be conveyed by a deed in the from
attached as Exhibit B-4 if BNPLC's interest in the Improvements has been sold
pursuant to the Other Purchase Agreement before a sale of BNPLC's interest in
the Land under this Agreement, or if BNPLC's interest in the Improvements is
being sold contemporaneously with a sale of BNPLC's interest in the Land, but
the purchaser of the Improvements is not the same as the purchaser of the Land.
Exhibit B-1
-----------
CORPORATION GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
-------------------------
NAME: [Extreme or the Applicable Purchaser]
ADDRESS: _____________________________
ATTN: _____________________________
CITY: _____________________________
STATE: ________________________________
Zip: _____________________________
MAIL TAX STATEMENTS TO:
----------------------
NAME: [Extreme 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
[Extreme or the Applicable Purchaser] ("Grantee") all of Grantor's interest in
the land situated in Santa Clara, 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.
BNP LEASING CORPORATION
Date: As of_____________ By: ___________________________
Its:
Attest: ___________________________
Its:
[Extreme 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
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
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 EXTREME REQUESTS BNPLC'S
CONSENT OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY
SUCH CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING
NOTE" WILL BE DELETED BEFORE THE DEED TO WHICH THIS DESCRIPTION IS ATTACHED IS
ACTUALLY EXECUTED AND DELIVERED.]
All that certain real property situated in the City of Santa Xxxxx, County of
Santa Xxxxx, State of California, described as follows:
Being a portion of that certain 24.740 acre parcel as shown on that certain
Record of Survey filed in Book 447 of Maps, at Page 33, Santa Xxxxx County
Records, described as follows:
Beginning at the Northwest corner of said 24.740 acre parcel; thence from said
point of beginning along the Northerly line of said 24.470 acre parcel N. 89
degrees 25 minutes 00 seconds E. 995.17 feet; thence leaving said Northerly
lines S. 0 degrees 10 minutes 00 seconds W. 705.02 feet to a point in the
Southerly line of said 24.740 acre parcel; thence along said Southerly line the
following courses: S. 89 degrees 25 minutes 00 seconds W. 181.82 feet; S. 2.00
feet and S. 89 degrees 25 minutes 00 seconds W. 760.70 feet; thence leaving said
Southerly line along a tangent curve to the right, with a radius of 50.00 feet,
through a central angle of 90 degrees 34 minutes 33 seconds for an arc length of
79.4 feet to a point in the Westerly line of said 24.470 acre parcel; thence
along said Westerly line N. 0 degrees 00 minutes 27 seconds W. 656.49 feet to
the point of beginning.
Exhibit B-1 - Page 4
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 EXTREME'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 (Land) incorporated by reference into the Lease Agreement (Land)
referenced in the last item of the list below), including the following matters
to the extent the same are still valid and in force:
1. TAXES for the fiscal year 2000-2001, a lien not yet due or payable.
2. The lien of supplemental taxes, if any, assessed pursuant to the provisions
of Chapter 3.5, (commencing with Section 75) to the Revenue and Taxation
Code of the State of California.
3. An easement affecting the portion of said land and for the purpose stated
herein and incidental purposes,
In Favor Of: City of Santa Xxxxx
For: electric wire overhang purposes
Recorded: November 28, 1960 in Book 4995, Page 160, Official Records
Affects: Northerly 5 feet of said land, and as shown on the survey
prepared by Xxxxxxx X. XxXxxxx, L.S. 5944, dated April 27, 2000,
revised May 22, 2000
4. The fact that the ownership of said land does not include any right of
ingress or egress to or from Xxxxxxxx Expressway contiguous thereto, said
right having been relinquished by deed,
From: Jefferson Union Elementary School District of the County of Santa
Xxxxx
To: County of Santa Xxxxx, State of California
Recorded: June 4, 1965 in Book 6982, Page 1, Official Records
Said land, however, abuts on a public street other than the one referred to
above, over which rights of vehicular access have not been relinquished.
5. An Agreement, affecting said land, for the purposes stated herein and
subject to the terms, covenants, conditions, restrictions, and easements,
if any, contained therein
For: Postponed Traffic Signal Improvements
Dated: October 4, 1983
Executed by: City of Santa Clara, California, a municipal corporation and
MPJ, a California partnership
Recorded: November 16, 1983 in Book I 070, Page 333, Official Records.
6. An easement affecting the portion of said land and for the purpose stated
herein and incidental purposes,
In Favor Of: City of Santa Xxxxx, a municipal corporation
For: roadway purposes and public utilities
Recorded: November 30, 1983 in Book I 111, Page 606, Official Records
Affects:A portion of that certain 24.740 acre parcel of land as shown on
that certain Record of Survey filed for record in Book 447
of Maps, at page 33, Santa Xxxxx County Records, described
as
Exhibit B-1 - Page 5 follows:
follows:
Beginning at a point in the Northerly line of Monroe Avenue, as shown
on said map at the Westerly terminus of the course shown as N. 89
degrees 25 minutes 00 seconds E. 760.70; thence from said point of
beginning along said Northerly line N. 89 degrees 25 minutes 00 seconds
E. 760.70 feet and N. 2.00 feet; thence leaving said Northerly line
along a line parallel with said course of N. 89 degrees 25 minutes 00
seconds E.; S. 89 degrees 25 minutes 00 seconds W. 334.99 feet; thence
leaving said parallel line N. 87 degrees 09 minutes 00 seconds W. 66.79
feet; thence along a line parallel with said course N. 89 degrees 25
minutes 00 seconds E.; S. 89 degrees 25 minutes 00 seconds W. 359.00
feet; thence leaving said Westerly line along a tangent curve to the
right, with a radius of 50.00 feet, through a central angle of 90
degrees 34 minutes 33 seconds for an arc length of 79.04 feet to a
point of cusp in the Westerly line of said 24.740 acre parcel; thence
along said Westerly line S. 0 degrees 00 minutes 27 seconds E. 6.00
feet; thence leaving said Westerly line along a tangent curve to the
left, with a radius of 50.00 feet, through a central angle of 90
degrees 34 minutes 33 seconds for an arc length of 79.04 feet to the
point of beginning, and as shown on the survey prepared by Xxxxxxx X.
XxXxxxx, L.S. 5944, dated April 27, 2000, revised May 22, 2000.
7. An easement affecting the portion of said land and for the purpose
stated herein and incidental purposes,
In Favor Of: City of Santa Xxxxx, a municipal corporation
For: underground electrical distribution and/or communication systems
Recorded: May 17, 1984 in Book I 552, Page 595, Official Records
Affects. as follows:
Parcel 1:
Commencing at the point of intersection of the Westerly line of that
certain 24.74 acre parcel of land shown upon that Record of Survey
filed for recorded August 10, 1979 in Book 447 of Maps, at page 33,
Santa Xxxxx County Records, with a line parallel with and 10 feet
Southerly of, measured at right angles to, the Northerly line of said
parcel; thence along said parallel line N. 89 degrees 25 minutes 00
seconds E. 107.00 feet; thence parallel with said Westerly line S. 0
degrees 00 minutes 27 seconds E. 319.16 feet; thence S. 34 degrees 02
minutes 45 seconds W. 87.51 feet, more or less, to intersection with a
line parallel with and 58 feet Easterly of measured at right angles to,
said Westerly line; thence along last said parallel line S. 0 degrees
00 minutes 27 seconds E. 294.30 feet, more or less, to intersection
with a line parallel with and 5 feet Northerly of, measured at right
angles to, the Northerly line of that real property conveyed to the
City of Santa Xxxxx by that deed filed for record November 30, 1983 in
Book I 111 of Official Records, at page 606, said County Records;
thence along last said parallel line the following three (3) courses:
N. 89 degrees 25 minutes 00 seconds E. 351.81 feet; S. 87 degrees 09
minutes 00 seconds E. 66.79 feet; N. 89 degrees 25 minutes 00 seconds
E. 334.69 feet; thence continuing parallel with the Southerly line of
first said parcel N. 89 degrees 25 minutes 00 seconds E. 181.89 feet,
more or less, to termination in the Easterly line of that certain
parcel of real property conveyed to MPJ Partnership, by that Grant Deed
filed for record August 25, 1983 in Book H 838 of Official Records, at
page 215, said County Records.
Parcel 2:
A portion of said 24.74 acre parcel of land contiguous to and Northerly
of said real property conveyed by deed recorded in Book I 111, at page
606, contiguous to and Westerly of hereinabove described strip of land
and bounded on the North by a line parallel with and 5 feet Northerly
of, measured at right angles to, that course N. 89 degrees 25 minutes
00 seconds E. 351.81 feet in the hereinabove described centerline.
Parcel 3:
A strip of land 10 feet in width and 30 feet in length of centerline of
said strip being parallel with and 325.5 feet Southerly of, measured at
right angles to, said Northerly line of the 24.74 acre parcel and
terminating on
Exhibit B-1 - Page 6
the West in the Easterly line of first hereinabove described strip;
thence continuing Easterly along last said parallel line for a distance
of 15 feet, as the centerline of a strip of land 15 feet in width, to
termination of said centerline and strip.
Parcel 4:
A strip of land 10 feet in width and 12 feet in length the centerline
of said strip being parallel with and 116.5 feet Southerly of, measured
at right angles to, said Northerly line of the 24.74 acre parcel and
terminating on the West in the Easterly line of first hereinabove
described strip; thence continuing Easterly along last said parallel
line for a distance of 15 feet in width, lying 5 feet Northerly and 10
feet Southerly of said parallel line to the Easterly terminus of said
strip.
Parcel 5:
A strip of land 10 feet in width, the centerline of said strip being
described as follows:
Commencing at the point of intersection of the Northerly line of first
hereinabove described strip of land with a line parallel with and 824.5
feet Easterly of, measured at right angles to, that course in the
Westerly boundary of said 24.75 acre parcel bearing N. 0 degrees 00
minutes 27 seconds W.; thence along last said parallel line N. 0
degrees 00 minutes 27 seconds W. 367.96 feet, more or less, to a line
parallel with and 327 feet Southerly of, measured at right angles to,
said Northerly line of the 24.74 acre parcel; thence along last said
parallel line S. 89 degrees 25 minutes 00 seconds W. 78 feet to a line
parallel with and 746.5 feet Easterly of, measured at right angles to,
said Westerly line of the 24.74 acre parcel; thence along last said
parallel line N. 0 degrees 00 minutes 27 seconds W. 203 feet; thence
continuing as the centerline of a strip of land 15 feet in width N. 0
degrees 00 minutes 27 seconds W. 15 feet, more or less, to termination
of said strip and centerline in a line parallel with and 109 feet
Southerly of, measured at right angles to, last said Northerly line.
Parcel 6:
A 15 foot square parcel of land contiguous to and Southerly of last
hereinabove described 10 foot wide strip of land and centered on the
Southerly prolongation of hereinabove mentioned course N. 0 degrees 00
minutes 27 seconds W. 203 feet, and as shown on the survey prepared by
Xxxxxxx X. XxXxxxx, L.S. 5944, dated April 27, 2000, revised May 22,
2000.
8. Lease Agreement (Land) dated as of June 1, 2000, by and between BNP
Leasing Corporation, as lessor, and Extreme Networks, Inc., as lessee,
and Lease Agreement (Improvements) dated as of June 1, 2000, by and
between BNP Leasing Corporation, as lessor, and Extreme Networks, Inc.,
as lessee.
Exhibit B-1 - Page 7
Exhibit B-2
-----------
CORPORATION GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
-------------------------
NAME: [Extreme or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE: ___________________
Zip: ___________________
MAIL TAX STATEMENTS TO:
----------------------
NAME: [Extreme 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
[Extreme or the Applicable Purchaser] ("Grantee") all of Grantor's interest in
the buildings and other improvements (the "Improvements") on the land situated
in Santa Clara, California, described on Annex A attached hereto and hereby made
a part hereof (the "Land"), together with the any other right, title and
interest of Grantor in and to any easements, rights-of-way, privileges and other
rights appurtenant to the Improvements; provided, however, that this grant is
subject to the encumbrances described on Annex B (the "Permitted Encumbrances")
and any reservations or qualifications set forth below. Grantee hereby assumes
the obligations (including any personal obligations) of Grantor, if any, created
by or under, and agrees to be bound by the terms and conditions of, the
Permitted Encumbrances to the extent that the same concern or apply to the
Improvements.
Although this deed conveys Grantor's interest in the Improvements, this deed
does not convey any interest in the Land under the Improvements or any rights or
easements appurtenant to Improvements. Grantor retains and reserves all right,
title and interest of Grantor in and to the Land and any rights and easements
appurtenant to Land. Further, this deed does not convey any right of access over
or right to use the Land, it being understood that the right of Grantee or its
successors and assigns to maintain or use the improvements conveyed hereby shall
be on and subject to the terms and conditions of any separate ground lease or
deed that Grantee may from time to time obtain from the owner of the Land. If
Grantee does not obtain a separate deed or ground lease giving Grantee the
authority to maintain the Improvements on the Land, Grantee shall remove or
abandon the Improvements promptly upon request of the owner of the Land. Nothing
herein or in the agreements pursuant to which this deed is being delivered shall
be construed as an obligation on the part of Grantor to deliver or cooperate
reasonably in obtaining for Grantee any deed or ground lease covering the Land
described on Annex A.
BNP LEASING CORPORATION
Date: As of ____________ By: ___________________________
Its:
Attest: ___________________________
Its:
[Extreme 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
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
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 EXTREME REQUESTS BNPLC'S
CONSENT OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY
SUCH CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING
NOTE" WILL BE DELETED BEFORE THE DEED TO WHICH THIS DESCRIPTION IS ATTACHED IS
ACTUALLY EXECUTED AND DELIVERED.]
All that certain real property situated in the City of Santa Xxxxx, County of
Santa Xxxxx, State of California, described as follows:
Being a portion of that certain 24.740 acre parcel as shown on that certain
Record of Survey filed in Book 447 of Maps, at Page 33, Santa Xxxxx County
Records, described as follows:
Beginning at the Northwest corner of said 24.740 acre parcel; thence from said
point of beginning along the Northerly line of said 24.470 acre parcel N. 89
degrees 25 minutes 00 seconds E. 995.17 feet; thence leaving said Northerly
lines S. 0 degrees 10 minutes 00 seconds W. 705.02 feet to a point in the
Southerly line of said 24.740 acre parcel; thence along said Southerly line the
following courses: S. 89 degrees 25 minutes 00 seconds W. 181.82 feet; S. 2.00
feet and S. 89 degrees 25 minutes 00 seconds W. 760.70 feet; thence leaving said
Southerly line along a tangent curve to the right, with a radius of 50.00 feet,
through a central angle of 90 degrees 34 minutes 33 seconds for an arc length of
79.4 feet to a point in the Westerly line of said 24.470 acre parcel; thence
along said Westerly line N. 0 degrees 00 minutes 27 seconds W. 656.49 feet to
the point of beginning.
Exhibit B-2 - Page 4
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 EXTREME'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 (Improvements) incorporated by reference into the Lease Agreement
(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:
1. TAXES for the fiscal year 2000-2001, a lien not yet due or payable.
2. The lien of supplemental taxes, if any, assessed pursuant to the
provisions of Chapter 3.5, (commencing with Section 75) to the Revenue
and Taxation Code of the State of California.
3. An easement affecting the portion of said land and for the purpose
stated herein and incidental purposes,
In Favor Of: City of Santa Xxxxx
For: electric wire overhang purposes
Recorded: November 28, 1960 in Book 4995, Page 160, Official Records
Affects: Northerly 5 feet of said land, and as shown on the survey
prepared by Xxxxxxx X. XxXxxxx, L.S. 5944, dated
April 27, 2000, revised May 22, 2000
4. The fact that the ownership of said land does not include any right of
ingress or egress to or from Xxxxxxxx Expressway contiguous thereto,
said right having been relinquished by deed,
From: Jefferson Union Elementary School District of the County of Santa
Xxxxx
To: County of Santa Xxxxx, State of California
Recorded: June 4, 1965 in Book 6982, Page 1, Official Records
Said land, however, abuts on a public street other than the one
referred to above, over which rights of vehicular access have not been
relinquished.
5. An Agreement, affecting said land, for the purposes stated herein and
subject to the terms, covenants, conditions, restrictions, and
easements, if any, contained therein
For: Postponed Traffic Signal Improvements
Dated: October 4, 1983
Executed by: City of Santa Clara, California, a municipal corporation
and MPJ, a California partnership
Recorded: November 16, 1983 in Book I 070, Page 333, Official
Records.
6. An easement affecting the portion of said land and for the purpose
stated herein and incidental purposes,
In Favor Of: City of Santa Xxxxx, a municipal corporation
For: roadway purposes and public utilities
Recorded: November 30, 1983 in Book I 111, Page 606, Official
Records
Affects: A portion of that certain 24.740 acre parcel of land as shown
on that certain Record of Survey filed for record in Book
447 of Maps, at page 33, Santa Xxxxx County Records,
described as
Exhibit B-2 - Page 5
follows:
Beginning at a point in the Northerly line of Monroe Avenue, as shown
on said map at the Westerly terminus of the course shown as N. 89
degrees 25 minutes 00 seconds E. 760.70; thence from said point of
beginning along said Northerly line N. 89 degrees 25 minutes 00 seconds
E. 760.70 feet and N. 2.00 feet; thence leaving said Northerly line
along a line parallel with said course of N. 89 degrees 25 minutes 00
seconds E.; S. 89 degrees 25 minutes 00 seconds W. 334.99 feet; thence
leaving said parallel line N. 87 degrees 09 minutes 00 seconds W. 66.79
feet; thence along a line parallel with said course N. 89 degrees 25
minutes 00 seconds E.; S. 89 degrees 25 minutes 00 seconds W. 359.00
feet; thence leaving said Westerly line along a tangent curve to the
right, with a radius of 50.00 feet, through a central angle of 90
degrees 34 minutes 33 seconds for an arc length of 79.04 feet to a
point of cusp in the Westerly line of said 24.740 acre parcel; thence
along said Westerly line S. 0 degrees 00 minutes 27 seconds E. 6.00
feet; thence leaving said Westerly line along a tangent curve to the
left, with a radius of 50.00 feet, through a central angle of 90
degrees 34 minutes 33 seconds for an arc length of 79.04 feet to the
point of beginning, and as shown on the survey prepared by Xxxxxxx X.
XxXxxxx, L.S. 5944, dated April 27, 2000, revised May 22, 2000.
7. An easement affecting the portion of said land and for the purpose
stated herein and incidental purposes,
In Favor Of: City of Santa Xxxxx, a municipal corporation
For: underground electrical distribution and/or communication systems
Recorded: May 17, 1984 in Book I 552, Page 595, Official Records
Affects. as follows:
Parcel 1:
Commencing at the point of intersection of the Westerly line of that
certain 24.74 acre parcel of land shown upon that Record of Survey
filed for recorded August 10, 1979 in Book 447 of Maps, at page 33,
Santa Xxxxx County Records, with a line parallel with and 10 feet
Southerly of, measured at right angles to, the Northerly line of said
parcel; thence along said parallel line N. 89 degrees 25 minutes 00
seconds E. 107.00 feet; thence parallel with said Westerly line S. 0
degrees 00 minutes 27 seconds E. 319.16 feet; thence S. 34 degrees 02
minutes 45 seconds W. 87.51 feet, more or less, to intersection with a
line parallel with and 58 feet Easterly of measured at right angles to,
said Westerly line; thence along last said parallel line S. 0 degrees
00 minutes 27 seconds E. 294.30 feet, more or less, to intersection
with a line parallel with and 5 feet Northerly of, measured at right
angles to, the Northerly line of that real property conveyed to the
City of Santa Xxxxx by that deed filed for record November 30, 1983 in
Book I 111 of Official Records, at page 606, said County Records;
thence along last said parallel line the following three (3) courses:
N. 89 degrees 25 minutes 00 seconds E. 351.81 feet; S. 87 degrees 09
minutes 00 seconds E. 66.79 feet; N. 89 degrees 25 minutes 00 seconds
E. 334.69 feet; thence continuing parallel with the Southerly line of
first said parcel N. 89 degrees 25 minutes 00 seconds E. 181.89 feet,
more or less, to termination in the Easterly line of that certain
parcel of real property conveyed to MPJ Partnership, by that Grant Deed
filed for record August 25, 1983 in Book H 838 of Official Records, at
page 215, said County Records.
Parcel 2:
A portion of said 24.74 acre parcel of land contiguous to and Northerly
of said real property conveyed by deed recorded in Book I 111, at page
606, contiguous to and Westerly of hereinabove described strip of land
and bounded on the North by a line parallel with and 5 feet Northerly
of, measured at right angles to, that course N. 89 degrees 25 minutes
00 seconds E. 351.81 feet in the hereinabove described centerline.
Parcel 3:
A strip of land 10 feet in width and 30 feet in length of centerline of
said strip being parallel with and 325.5 feet Southerly of, measured at
right angles to, said Northerly line of the 24.74 acre parcel and
terminating on
Exhibit B-2 - Page 6
the West in the Easterly line of first hereinabove described strip;
thence continuing Easterly along last said parallel line for a distance
of 15 feet, as the centerline of a strip of land 15 feet in width, to
termination of said centerline and strip.
Parcel 4:
A strip of land 10 feet in width and 12 feet in length the centerline
of said strip being parallel with and 116.5 feet Southerly of, measured
at right angles to, said Northerly line of the 24.74 acre parcel and
terminating on the West in the Easterly line of first hereinabove
described strip; thence continuing Easterly along last said parallel
line for a distance of 15 feet in width, lying 5 feet Northerly and 10
feet Southerly of said parallel line to the Easterly terminus of said
strip.
Parcel 5:
A strip of land 10 feet in width, the centerline of said strip being
described as follows:
Commencing at the point of intersection of the Northerly line of first
hereinabove described strip of land with a line parallel with and 824.5
feet Easterly of, measured at right angles to, that course in the
Westerly boundary of said 24.75 acre parcel bearing N. 0 degrees 00
minutes 27 seconds W.; thence along last said parallel line N. 0
degrees 00 minutes 27 seconds W. 367.96 feet, more or less, to a line
parallel with and 327 feet Southerly of, measured at right angles to,
said Northerly line of the 24.74 acre parcel; thence along last said
parallel line S. 89 degrees 25 minutes 00 seconds W. 78 feet to a line
parallel with and 746.5 feet Easterly of, measured at right angles to,
said Westerly line of the 24.74 acre parcel; thence along last said
parallel line N. 0 degrees 00 minutes 27 seconds W. 203 feet; thence
continuing as the centerline of a strip of land 15 feet in width N. 0
degrees 00 minutes 27 seconds W. 15 feet, more or less, to termination
of said strip and centerline in a line parallel with and 109 feet
Southerly of, measured at right angles to, last said Northerly line.
Parcel 6:
A 15 foot square parcel of land contiguous to and Southerly of last
hereinabove described 10 foot wide strip of land and centered on the
Southerly prolongation of hereinabove mentioned course N. 0 degrees 00
minutes 27 seconds W. 203 feet, and as shown on the survey prepared by
Xxxxxxx X. XxXxxxx, L.S. 5944, dated April 27, 2000, revised May 22,
2000.
8. Lease Agreement (Land) dated as of June 1, 2000, by and between BNP
Leasing Corporation, as lessor, and Extreme Networks, Inc., as lessee,
and Lease Agreement (Improvements) dated as of June 1, 2000, by and
between BNP Leasing Corporation, as lessor, and Extreme Networks, Inc.,
as lessee.
Exhibit B-2 - Page 7
Exhibit B-3
-----------
CORPORATION GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
-------------------------
NAME: [Extreme or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE: ___________________
Zip: ___________________
MAIL TAX STATEMENTS TO:
----------------------
NAME: [Extreme 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
[Extreme or the Applicable Purchaser] ("Grantee") all of Grantor's interest in
the buildings and other improvements (the "Improvements") on the land situated
in Santa Clara, 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.
BNP LEASING CORPORATION
Date: As of ____________ By: ________________________________
Its:
Attest: ________________________________
Its:
[Extreme 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
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
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 EXTREME REQUESTS BNPLC'S
CONSENT OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY
SUCH CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING
NOTE" WILL BE DELETED BEFORE THE DEED TO WHICH THIS DESCRIPTION IS ATTACHED IS
ACTUALLY EXECUTED AND DELIVERED.]
All that certain real property situated in the City of Santa Xxxxx, County of
Santa Xxxxx, State of California, described as follows:
Being a portion of that certain 24.740 acre parcel as shown on that certain
Record of Survey filed in Book 447 of Maps, at Page 33, Santa Xxxxx County
Records, described as follows:
Beginning at the Northwest corner of said 24.740 acre parcel; thence from said
point of beginning along the Northerly line of said 24.470 acre parcel N. 89
degrees 25 minutes 00 seconds E. 995.17 feet; thence leaving said Northerly
lines S. 0 degrees 10 minutes 00 seconds W. 705.02 feet to a point in the
Southerly line of said 24.740 acre parcel; thence along said Southerly line the
following courses: S. 89 degrees 25 minutes 00 seconds W. 181.82 feet; S. 2.00
feet and S. 89 degrees 25 minutes 00 seconds W. 760.70 feet; thence leaving said
Southerly line along a tangent curve to the right, with a radius of 50.00 feet,
through a central angle of 90 degrees 34 minutes 33 seconds for an arc length of
79.4 feet to a point in the Westerly line of said 24.470 acre parcel; thence
along said Westerly line N. 0 degrees 00 minutes 27 seconds W. 656.49 feet to
the point of beginning.
Exhibit B-3 - Page 4
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 EXTREME'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 (Improvements) incorporated by reference into the Lease Agreement
(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:
1. TAXES for the fiscal year 2000-2001, a lien not yet due or payable.
2. The lien of supplemental taxes, if any, assessed pursuant to the
provisions of Chapter 3.5, (commencing with Section 75) to the Revenue
and Taxation Code of the State of California.
3. An easement affecting the portion of said land and for the purpose
stated herein and incidental purposes,
In Favor Of: City of Santa Xxxxx
For: electric wire overhang purposes
Recorded: November 28, 1960 in Book 4995, Page 160, Official Records
Affects: Northerly 5 feet of said land, and as shown on the survey
prepared by Xxxxxxx X. XxXxxxx, L.S. 5944, dated
April 27, 2000, revised May 22, 2000
4. The fact that the ownership of said land does not include any right of
ingress or egress to or from Xxxxxxxx Expressway contiguous thereto,
said right having been relinquished by deed,
From: Jefferson Union Elementary School District of the County of Santa
Xxxxx
To: County of Santa Xxxxx, State of California
Recorded: June 4, 1965 in Book 6982, Page 1, Official Records
Said land, however, abuts on a public street other than the one
referred to above, over which rights of vehicular access have not been
relinquished.
5. An Agreement, affecting said land, for the purposes stated herein and
subject to the terms, covenants, conditions, restrictions, and
easements, if any, contained therein
For: Postponed Traffic Signal Improvements
Dated: October 4, 1983
Executed by: City of Santa Clara, California, a municipal corporation
and MPJ, a California partnership
Recorded: November 16, 1983 in Book I 070, Page 333, Official Records.
6. An easement affecting the portion of said land and for the purpose
stated herein and incidental purposes,
In Favor Of: City of Santa Xxxxx, a municipal corporation
For: roadway purposes and public utilities
Recorded: November 30, 1983 in Book I 111, Page 606, Official Records
Affects: A portion of that certain 24.740 acre parcel of land as shown
on that certain Record of Survey filed for record in Book
447 of Maps, at page 33, Santa Xxxxx County Records,
described as
Exhibit B-3 - Page 5
follows:
Beginning at a point in the Northerly line of Monroe Avenue, as shown
on said map at the Westerly terminus of the course shown as N. 89
degrees 25 minutes 00 seconds E. 760.70; thence from said point of
beginning along said Northerly line N. 89 degrees 25 minutes 00 seconds
E. 760.70 feet and N. 2.00 feet; thence leaving said Northerly line
along a line parallel with said course of N. 89 degrees 25 minutes 00
seconds E.; S. 89 degrees 25 minutes 00 seconds W. 334.99 feet; thence
leaving said parallel line N. 87 degrees 09 minutes 00 seconds W. 66.79
feet; thence along a line parallel with said course N. 89 degrees 25
minutes 00 seconds E.; S. 89 degrees 25 minutes 00 seconds W. 359.00
feet; thence leaving said Westerly line along a tangent curve to the
right, with a radius of 50.00 feet, through a central angle of 90
degrees 34 minutes 33 seconds for an arc length of 79.04 feet to a
point of cusp in the Westerly line of said 24.740 acre parcel; thence
along said Westerly line S. 0 degrees 00 minutes 27 seconds E. 6.00
feet; thence leaving said Westerly line along a tangent curve to the
left, with a radius of 50.00 feet, through a central angle of 90
degrees 34 minutes 33 seconds for an arc length of 79.04 feet to the
point of beginning, and as shown on the survey prepared by Xxxxxxx X.
XxXxxxx, L.S. 5944, dated April 27, 2000, revised May 22, 2000.
7. An easement affecting the portion of said land and for the purpose
stated herein and incidental purposes,
In Favor Of: City of Santa Xxxxx, a municipal corporation
For: underground electrical distribution and/or communication
systems
Recorded: May 17, 1984 in Book I 552, Page 595, Official Records
Affects. as follows:
Parcel 1:
Commencing at the point of intersection of the Westerly line of that
certain 24.74 acre parcel of land shown upon that Record of Survey
filed for recorded August 10, 1979 in Book 447 of Maps, at page 33,
Santa Xxxxx County Records, with a line parallel with and 10 feet
Southerly of, measured at right angles to, the Northerly line of said
parcel; thence along said parallel line N. 89 degrees 25 minutes 00
seconds E. 107.00 feet; thence parallel with said Westerly line S. 0
degrees 00 minutes 27 seconds E. 319.16 feet; thence S. 34 degrees 02
minutes 45 seconds W. 87.51 feet, more or less, to intersection with a
line parallel with and 58 feet Easterly of measured at right angles to,
said Westerly line; thence along last said parallel line S. 0 degrees
00 minutes 27 seconds E. 294.30 feet, more or less, to intersection
with a line parallel with and 5 feet Northerly of, measured at right
angles to, the Northerly line of that real property conveyed to the
City of Santa Xxxxx by that deed filed for record November 30, 1983 in
Book I 111 of Official Records, at page 606, said County Records;
thence along last said parallel line the following three (3) courses:
N. 89 degrees 25 minutes 00 seconds E. 351.81 feet; S. 87 degrees 09
minutes 00 seconds E. 66.79 feet; N. 89 degrees 25 minutes 00 seconds
E. 334.69 feet; thence continuing parallel with the Southerly line of
first said parcel N. 89 degrees 25 minutes 00 seconds E. 181.89 feet,
more or less, to termination in the Easterly line of that certain
parcel of real property conveyed to MPJ Partnership, by that Grant Deed
filed for record August 25, 1983 in Book H 838 of Official Records, at
page 215, said County Records.
Parcel 2:
A portion of said 24.74 acre parcel of land contiguous to and Northerly
of said real property conveyed by deed recorded in Book I 111, at page
606, contiguous to and Westerly of hereinabove described strip of land
and bounded on the North by a line parallel with and 5 feet Northerly
of, measured at right angles to, that course N. 89 degrees 25 minutes
00 seconds E. 351.81 feet in the hereinabove described centerline.
Parcel 3:
A strip of land 10 feet in width and 30 feet in length of centerline of
said strip being parallel with and 325.5 feet Southerly of, measured at
right angles to, said Northerly line of the 24.74 acre parcel and
terminating on
Exhibit B-3 - Page 6
the West in the Easterly line of first hereinabove described strip;
thence continuing Easterly along last said parallel line for a distance
of 15 feet, as the centerline of a strip of land 15 feet in width, to
termination of said centerline and strip.
Parcel 4:
A strip of land 10 feet in width and 12 feet in length the centerline
of said strip being parallel with and 116.5 feet Southerly of, measured
at right angles to, said Northerly line of the 24.74 acre parcel and
terminating on the West in the Easterly line of first hereinabove
described strip; thence continuing Easterly along last said parallel
line for a distance of 15 feet in width, lying 5 feet Northerly and 10
feet Southerly of said parallel line to the Easterly terminus of said
strip.
Parcel 5:
A strip of land 10 feet in width, the centerline of said strip being
described as follows:
Commencing at the point of intersection of the Northerly line of first
hereinabove described strip of land with a line parallel with and 824.5
feet Easterly of, measured at right angles to, that course in the
Westerly boundary of said 24.75 acre parcel bearing N. 0 degrees 00
minutes 27 seconds W.; thence along last said parallel line N. 0
degrees 00 minutes 27 seconds W. 367.96 feet, more or less, to a line
parallel with and 327 feet Southerly of, measured at right angles to,
said Northerly line of the 24.74 acre parcel; thence along last said
parallel line S. 89 degrees 25 minutes 00 seconds W. 78 feet to a line
parallel with and 746.5 feet Easterly of, measured at right angles to,
said Westerly line of the 24.74 acre parcel; thence along last said
parallel line N. 0 degrees 00 minutes 27 seconds W. 203 feet; thence
continuing as the centerline of a strip of land 15 feet in width N. 0
degrees 00 minutes 27 seconds W. 15 feet, more or less, to termination
of said strip and centerline in a line parallel with and 109 feet
Southerly of, measured at right angles to, last said Northerly line.
Parcel 6:
A 15 foot square parcel of land contiguous to and Southerly of last
hereinabove described 10 foot wide strip of land and centered on the
Southerly prolongation of hereinabove mentioned course N. 0 degrees 00
minutes 27 seconds W. 203 feet, and as shown on the survey prepared by
Xxxxxxx X. XxXxxxx, L.S. 5944, dated April 27, 2000, revised May 22,
2000.
8. Lease Agreement (Land) dated as of June 1, 2000, by and between BNP
Leasing Corporation, as lessor, and Extreme Networks, Inc., as lessee,
and Lease Agreement (Improvements) dated as of June 1, 2000, by and
between BNP Leasing Corporation, as lessor, and Extreme Networks, Inc.,
as lessee.
Exhibit B-3 - Page 7
Exhibit C
---------
XXXX OF SALE AND ASSIGNMENT
Reference is made to: (1) that certain Purchase Agreement (Improvements)
between BNP Leasing Corporation ("Assignor") and Extreme Networks, Inc., dated
as of June 1, 2000, (the "Purchase Agreement") and (2) that certain Lease
Agreement (Improvements) between Assignor, as landlord, and Extreme Networks,
Inc., as tenant, dated as of June 1, 2000 (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 (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 [EXTREME OR THE APPLICABLE PURCHASER, AS THE CASE MAY BE], a
_____________ ("Assignee"), all of Assignor's right, title and interest in and
to the following property, if any, to the extent such property is assignable:
(a) the Improvements Lease [DRAFTING NOTE: THE FOLLOWING WILL BE ADDED
ONLY IF APPLICABLE BECAUSE OF THE SIMULTANEOUS DELIVERY OF A GRANT DEED IN THE
FORM OF EXHIBIT B-3: and the Ground Lease dated _________, between _________, as
-----------
lessor, and Assignor, as lessee, filed for record on in ___________ of Santa
Xxxxx County records (the "Ground Lease")];
(b) any pending or future award made because of any condemnation affecting
the Property or because of any conveyance to be made in lieu thereof, and any
unpaid award for damage to the Property and any unpaid proceeds of insurance or
claim or cause of action for damage, loss or injury to the Property; and
(c) all other property included within the definition of "Property" as set
forth in the Purchase Agreement, including but not limited to any of the
following transferred to Assignor by the tenant pursuant to Paragraph 7 of the
-----------
Improvements Lease or otherwise acquired by Assignor, at the time of the
execution and delivery of the Improvements Lease and Purchase Agreement or
thereafter, by reason of Assignor's status as the owner of any interest in the
Property: (1) any goods, equipment, furnishings, furniture, chattels and
tangible personal property of whatever nature that are located on the Property
and all renewals or replacements of or substitutions for any of the foregoing;
(ii) the rights of Assignor, existing at the time of the execution of the
Improvements Lease and Purchase Agreement or thereafter arising, under Permitted
Encumbrances or Development Documents (both as defined in the Improvements
Lease); and (iii) any other permits, licenses, franchises, certificates, and
other rights and privileges related to the Property that Assignee would have
acquired if Assignee had itself acquired the Improvements covered by the
Improvements Lease and constructed the Improvements included in the Property.
Provided, however, excluded from this conveyance and reserved to Assignor are
any rights or privileges of Assignor under the following ("Excluded Rights"):
(1) the indemnities set forth in the Improvements Lease, whether such rights are
presently known or unknown, including rights of the Assignor to be indemnified
against environmental claims of third parties as provided in the Improvements
Lease which may not presently be known, (2) provisions in the Improvements Lease
that establish the right of Assignor to recover any accrued unpaid rent under
the Improvements Lease which may be outstanding as of the date hereof, (3)
agreements between Assignor and "BNPLC's Parent" or any "Participant," both as
defined in the Improvements Lease, or any modification or extension thereof, or
(4) any other instrument being delivered to Assignor contemporaneously herewith
pursuant to the Purchase Agreement. To the extent that this conveyance does
include any rights to receive future payments under the Improvements Lease, such
rights ("Included Rights") shall be subordinate to Assignor's Excluded Rights,
and Assignee hereby waives any rights to enforce Included Rights until such time
as Assignor has received all payments to which it remains entitled by reason of
Excluded Rights. If any amount shall be paid to Assignee on account of any
Included Rights at any time before Assignor has received all payments to which
it is entitled because of Excluded Rights, such amount shall be held in trust by
Assignee for the benefit of Assignor, shall be segregated from the other funds
of Assignee and 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:
--------
[Extreme or the Applicable Purchaser], a
____________________
By:_____________________________________
Its:____________________________________
Exhibit C - Page 2
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
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 EXTREME REQUESTS BNPLC'S
CONSENT OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY
SUCH CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING
NOTE" WILL BE DELETED BEFORE THE DOCUMENT TO WHICH THIS DESCRIPTION IS ATTACHED
IS ACTUALLY EXECUTED AND DELIVERED.]
All that certain real property situated in the City of Santa Xxxxx, County of
Santa Xxxxx, State of California, described as follows:
Being a portion of that certain 24.740 acre parcel as shown on that certain
Record of Survey filed in Book 447 of Maps, at Page 33, Santa Xxxxx County
Records, described as follows:
Beginning at the Northwest corner of said 24.740 acre parcel; thence from said
point of beginning along the Northerly line of said 24.470 acre parcel N. 89
degrees 25 minutes 00 seconds E. 995.17 feet; thence leaving said Northerly
lines S. 0 degrees 10 minutes 00 seconds W. 705.02 feet to a point in the
Southerly line of said 24.740 acre parcel; thence along said Southerly line the
following courses: S. 89 degrees 25 minutes 00 seconds W. 181.82 feet; S. 2.00
feet and S. 89 degrees 25 minutes 00 seconds W. 760.70 feet; thence leaving said
Southerly line along a tangent curve to the right, with a radius of 50.00 feet,
through a central angle of 90 degrees 34 minutes 33 seconds for an arc length of
79.4 feet to a point in the Westerly line of said 24.470 acre parcel; thence
along said Westerly line N. 0 degrees 00 minutes 27 seconds W. 656.49 feet to
the point of beginning.
Exhibit C - Page 4
Exhibit D
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ACKNOWLEDGMENT OF DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
THIS ACKNOWLEDGMENT OF DISCLAIMER OF REPRESENTATIONS AND WARRANTIES (this
"Certificate") is made as of ___________________, ____, by [Extreme 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
(Improvements) incorporated by reference into the Purchase Agreement between
BNPLC and Extreme Networks, Inc. dated as of June 1, 2000, 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 ________________, ____.
[Extreme or the Applicable Purchaser]
By:______________________________________
Name:_________________________________
Title:________________________________
Exhibit E
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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]
CORPORATE RESOLUTIONS OF
BNP LEASING CORPORATION
WHEREAS, pursuant to that certain Purchase Agreement (Improvements) (herein
called the "Purchase Agreement") dated as of June 1, 2000, by and between BNP
Leasing Corporation (the "Corporation") and [Extreme 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 Santa Clara, 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
Exhibit F
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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 [Extreme 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:________________________
