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EXHIBIT 10.52
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PURCHASE AGREEMENT
(PHASE IV - LAND)
BETWEEN
BNP LEASING CORPORATION
("BNPLC")
AND
NETWORK APPLIANCE, INC.
("NAI")
DECEMBER ___, 1999
(SUNNYVALE, CALIFORNIA)
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TABLE OF CONTENTS
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1. NAI'S OPTIONS AND OBLIGATIONS ON THE DESIGNATED SALE DATE............................1
(A) Right to Purchase; Right and Obligation to Remarket...........................1
(B) Determinations Concerning Price...............................................2
(C) Designation of the Purchaser..................................................3
(D) Effect of the Purchase Option and NAI's Initial Remarketing Rights and
Obligations on Subsequent Title Encumbrances..................................4
(E) Security for the Purchase Option and NAI's Initial Remarketing Rights
and Obligations...............................................................4
(F) Delivery of Books and Records If BNPLC Retains the Property...................4
2. NAI'S RIGHTS AND OPTIONS AFTER THE DESIGNATED SALE DATE..............................4
(A) NAI's Extended Right to Remarket..............................................4
(B) Definition of Minimum Extended Remarketing Price..............................5
(C) BNPLC's Right to Sell.........................................................6
(D) NAI's Right to Excess Sales Proceeds..........................................6
(E) Permitted Transfers During NAI's Extended Remarketing Period..................6
3. TERMS OF CONVEYANCE UPON PURCHASE....................................................6
4. SURVIVAL AND TERMINATION OF THE RIGHTS AND OBLIGATIONS OF NAI AND BNPLC..............7
(A) Status of this Agreement Generally............................................7
(B) Intentionally Deleted.........................................................8
(C) Intentionally Deleted.........................................................8
(D) Automatic Termination of NAI's Rights.........................................8
(E) Termination of NAI's Extended Remarketing Rights to Permit a Sale by
BNPLC.........................................................................8
(F) Payment Only to BNPLC.........................................................8
(G) Remedies Under the Other Operative Documents..................................8
(H) Occupancy by NAI Prior to Closing of a Sale...................................8
5. SECURITY FOR NAI'S OBLIGATIONS; RETURN OF FUNDS......................................8
6. CERTAIN REMEDIES CUMULATIVE..........................................................9
7. ATTORNEYS' FEES AND LEGAL EXPENSES...................................................9
8. ESTOPPEL CERTIFICATE.................................................................9
9. SUCCESSORS AND ASSIGNS...............................................................9
10. GROUND LEASE TERM AND EARLY TERMINATION BY BNPLC.....................................2
11. NO OTHER GROUND LEASE TERMINATION....................................................2
12. GROUND LEASE RENT....................................................................3
13. USE OF GL PROPERTY...................................................................3
(A) Permitted Uses and Construction of Improvements...............................3
(B) Cooperation by Lessor and its Affiliates......................................3
(C) Title to Improvements.........................................................3
14. ASSIGNMENT AND SUBLETTING; PASS THROUGH OF BNPLC'S LIABILITY INSURANCE AND
INDEMNITY RIGHTS.....................................................................3
15. REPRESENTATIONS, WARRANTIES AND COVENANTS OF LESSOR..................................4
(A) Title to the Property.........................................................4
(B) Modification of Permitted Encumbrances and Development Documents..............4
(C) Performance and Preservation of the Development Documents and Permitted
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Encumbrances for the Benefit of BNPLC................................................4
16. INSURANCE AND CONDEMNATION...........................................................5
(A) Entitlement to Insurance and Condemnation Proceeds............................5
(B) Collection of Insurance Proceeds..............................................5
(C) Collection of Condemnation Proceeds...........................................5
17. LEASEHOLD MORTGAGES..................................................................5
18. EVENTS OF DEFAULT....................................................................7
(A) Definition of Ground Lease Default............................................7
(B) Remedy........................................................................7
19. QUIET ENJOYMENT......................................................................7
20. ESTOPPEL CERTIFICATE.................................................................7
21. OPTION TO REPURCHASE.................................................................8
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Exhibits and Schedules
Exhibit A......................................................Legal Description
Exhibit B...................Requirements Re: Form of Grant Deed and Ground Lease
Exhibit C............................................▇▇▇▇ of Sale and Assignment
Exhibit D..........................................Acknowledgment and Disclaimer
Exhibit E................................................Secretary's Certificate
Exhibit F.................................Certificate Concerning Tax Withholding
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PURCHASE AGREEMENT
(PHASE IV - LAND)
This PURCHASE AGREEMENT (PHASE IV - LAND) (this "AGREEMENT"), by and
between BNP LEASING CORPORATION, a Delaware corporation ("BNPLC"), and NETWORK
APPLIANCE, INC., a California corporation ("NAI"), is made and dated as of
December ___, 1999, the Effective Date. ("EFFECTIVE DATE" and other capitalized
terms used and not otherwise defined in this Agreement are intended to have the
meanings assigned to them in the Common Definitions and Provisions Agreement
(Phase IV - Land) executed by BNPLC and NAI contemporaneously with this
Agreement. By this reference, the Common Definitions and Provisions Agreement
(Phase IV - Land) is incorporated into and made a part of this Agreement for all
purposes.)
RECITALS
Pursuant to the Existing Contract, which covers the Land described in
Exhibit A, BNPLC is acquiring the Land and any appurtenances thereto from Seller
contemporaneously with the execution of this Agreement. Pursuant to the Lease
Agreement (Phase IV - Land) executed by BNPLC and NAI contemporaneously with
this Agreement (the "LAND LEASE"), BNPLC is leasing the Land to NAI. (All of
BNPLC's interests, including those created by the documents delivered at the
closing under the Existing Contracts, in the Land and in all other real and
personal property from time to time covered by the Land Lease and included
within the "Property" as defined therein are hereinafter collectively referred
to as the "PROPERTY". The Property does not include the Improvements, it being
understood that the Other Purchase Agreement constitutes a separate agreement
providing for the possible sale of the Improvements and the appurtenances
thereto, and only the Improvements and the appurtenances thereto, from BNPLC to
NAI or a third party designated by NAI.)
NAI and BNPLC have reached agreement upon the terms and conditions upon
which NAI will purchase or arrange for the purchase of the Property, and by this
Agreement they desire to evidence such agreement.
AGREEMENTS
1. NAI'S OPTIONS AND OBLIGATIONS ON THE DESIGNATED SALE DATE.
(A) Right to Purchase; Right and Obligation to Remarket. Whether
or not an Event of Default shall have occurred and be continuing or the Land
Lease shall have been terminated, but subject to Paragraph 4 below:
(1) NAI shall have the right (the "PURCHASE OPTION") to
purchase or cause an Affiliate of NAI to purchase the Property and
BNPLC's interest in Escrowed Proceeds, if any, on the Designated Sale
Date for a cash price equal to the Break Even Price (as defined below).
(2) If neither NAI nor an Affiliate of NAI purchases the
Property and BNPLC's interest in any Escrowed Proceeds on the Designated
Sale Date as provided in the preceding subparagraph 1(A)(1), then NAI
shall have the following rights and obligations (collectively, "NAI'S
INITIAL REMARKETING RIGHTS AND OBLIGATIONS"):
(a) First, NAI shall have the right (but not the
obligation) to cause an Applicable Purchaser who is not an
Affiliate of NAI to purchase the Property and BNPLC's interest in
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Escrowed Proceeds on the Designated Sale Date for a cash purchase
price (the "THIRD PARTY PRICE") determined as provided below. If,
however, the Break Even Price exceeds the sum of any Third Party
Price tendered or to be tendered to BNPLC by an Applicable
Purchaser and any Supplemental Payment paid by NAI as described
below, then BNPLC may affirmatively elect to decline such tender
from the Applicable Purchaser and to keep the Property and any
Escrowed Proceeds rather than sell to the Applicable Purchaser
pursuant to this subparagraph (a "VOLUNTARY RETENTION OF THE
PROPERTY").
(b) Second, if the Third Party Price actually paid
by an Applicable Purchaser to BNPLC on the Designated Sale Date
exceeds the Break Even Price, NAI shall be entitled to such
excess, subject, however, to BNPLC's right to offset against such
excess any and all sums that are then due from NAI to BNPLC under
the other Operative Documents.
(c) Third, if for any reason whatsoever (including
a Voluntary Retention of the Property or a decision by NAI not to
exercise its right to purchase or cause an Applicable Purchaser
to purchase from BNPLC as described above) neither NAI nor an
Applicable Purchaser pays a net cash price to BNPLC on the
Designated Sale Date equal to or in excess of the Break Even
Price in connection with a sale of the Property and BNPLC's
interest in any Escrowed Proceeds pursuant to this Agreement,
then NAI shall have the obligation to pay to BNPLC on the
Designated Sale Date a supplemental payment (the "SUPPLEMENTAL
PAYMENT") equal to the lesser of (1) the amount by which the
Break Even Price exceeds such net cash price (if any) actually
received by BNPLC on the Designated Sale Date (such excess being
hereinafter called a "DEFICIENCY") or (2) the Maximum Remarketing
Obligation. As used herein, the "MAXIMUM REMARKETING OBLIGATION"
means a dollar amount determined in accordance with the following
provisions:
1) The "MAXIMUM REMARKETING OBLIGATION" will
equal the product of (i) Stipulated Loss Value on the
Designated Sale Date, times (ii) 100% minus the Residual
Risk Percentage, provided that both of the following
conditions are satisfied:
(x) NAI shall not have elected to
accelerate the Designated Sale Date as provided in
clause (2) of the definition of Designated Sale
Date in the Common Definitions and Provisions
Agreement (Phase IV - Land).
(y) No Event of Default, other than
an Issue 97-1 Non-performance-related Subjective
Event of Default, shall occur on or be continuing
on the Designated Sale Date.
2) If either of the conditions listed in
subparagraph 1) preceding are not satisfied, the "MAXIMUM
REMARKETING OBLIGATION" will equal the Break Even Price.
If any Supplemental Payment or other amount payable to BNPLC pursuant to this
subparagraph 1(A) is not actually paid to BNPLC on the Designated Sale Date, NAI
shall pay interest on the past due amount computed at the Default Rate from the
Designated Sale Date.
(B) Determinations Concerning Price.
(1) Determination of the Break Even Price. As used herein,
"BREAK EVEN PRICE" means an amount equal, on the Designated Sale Date,
to Stipulated Loss Value, plus all out-of-pocket costs
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and expenses (including appraisal costs, withholding taxes (if any) not
constituting Excluded Taxes, and Attorneys' Fees) incurred by BNPLC in
connection with any sale of BNPLC's interests in the Property under this
Agreement or in connection with collecting payments due hereunder, but
less the aggregate amounts (if any) of Direct Payments to Participants
and Deposit Taker Losses.
(2) Determination of Third Party Price. The Third Party
Price required of any Applicable Purchaser purchasing from BNPLC under
subparagraph 1(A)(2)(a) will be determined as follows:
(a) NAI may give a notice (a "REMARKETING NOTICE") to
BNPLC and to each of the Participants no earlier than one hundred
twenty days before the Designated Sale Date and no later than
ninety days before the Designated Sale Date, specifying an amount
as the Third Party Price that NAI believes in good faith to
constitute reasonably equivalent value for the Property and any
Escrowed Proceeds. Once given, a Remarketing Notice shall not be
rescinded or modified without BNPLC's written consent.
(b) If BNPLC believes in good faith that the Third Party
Price specified by NAI in a Remarketing Notice does not
constitute reasonably equivalent value for the Property and any
Escrowed Proceeds, BNPLC may at any time before sixty days prior
to the Designated Sale Date respond to the Remarketing Notice
with a notice back to NAI, objecting to the Third Party Price so
specified by NAI. If BNPLC receives a Remarketing Notice, yet
does not respond with an objection as provided in the preceding
sentence, the Third Party Price suggested by NAI in the
Remarketing Notice will be the Third Party Price for purposes of
this Agreement. If, however, BNPLC does respond with an objection
as provided in this subparagraph, and if NAI and BNPLC do not
otherwise agree in writing upon a Third Party Price, then the
Third Party Price will be the lesser of (I) fair market value of
the Property, plus the amount of any Escrowed Proceeds, as
determined by a professional independent appraiser satisfactory
to BNPLC, or (II) the Break Even Price.
(c) If for any reason, including an acceleration of the
Designated Sale Date as provided in the definition thereof in the
Common Definitions and Provisions Agreement (Phase IV - Land),
NAI does not deliver a Remarketing Notice to BNPLC within the
time period specified above, then the Third Party Price will be
an amount determined in good faith by BNPLC as constituting
reasonably equivalent value for the Property and any Escrowed
Proceeds, but in no event more than the Break Even Price.
If any payment to BNPLC by an Applicable Purchaser hereunder is held to
constitute a preference or a voidable transfer under Applicable Law, or
must for any other reason be refunded by BNPLC to the Applicable
Purchaser or to another Person, and if such payment to BNPLC reduced or
had the effect of reducing a Supplemental Payment or increased or had
the effect of increasing any excess sale proceeds paid to NAI pursuant
to subparagraph 1(A)(2)(b) or pursuant to subparagraph 2(D), then NAI
shall pay to BNPLC upon demand an amount equal to the reduction of the
Supplemental Payment or to the increase of the excess sale proceeds paid
to NAI, as applicable, and this Agreement shall continue to be effective
or shall be reinstated as necessary to permit BNPLC to enforce its right
to collect such amount from NAI.
(C) Designation of the Purchaser. To give BNPLC the opportunity
before the Designated Sale Date to prepare the deed and other documents that
BNPLC must tender pursuant to Paragraph 3 (collectively, the "SALE CLOSING
DOCUMENTS"), NAI must, by a notice to BNPLC given at least seven days prior to
the Designated Sale Date, specify irrevocably, unequivocally and with
particularity the party who will purchase the Property in
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order to satisfy the obligations of NAI set forth in subparagraph 1(A). If for
any reason NAI fails to so specify a party who will in accordance with the terms
and conditions set forth herein purchase the Property (be it NAI itself, an
Affiliate of NAI or another Applicable Purchaser), BNPLC shall be entitled to
postpone the tender of the Sale Closing Documents until a date after the
Designated Sale Date and not more than twenty days after NAI finally does so
specify a party, but such postponement will not relieve or postpone the
obligation of NAI to make a Supplemental Payment on the Designated Sale Date as
provided in Paragraph 1(A)(2)(c).
(D) Effect of the Purchase Option and NAI's Initial Remarketing
Rights and Obligations on Subsequent Title Encumbrances. Any conveyance of the
Property to NAI or any Applicable Purchaser pursuant to this Paragraph 1(A)
shall cut off and terminate any interest in the Land or other Property claimed
by, through or under BNPLC, including any interest claimed by the Participants
and including any Liens Removable by BNPLC (such as, but not limited to, any
judgment liens established against the Property because of a judgment rendered
against BNPLC and any leasehold or other interests conveyed by BNPLC in the
ordinary course of BNPLC's business), but not including personal obligations of
NAI to BNPLC under the Land Lease or other Operative Documents (including
obligations arising under the indemnities therein). Anyone accepting or taking
any interest in the Property by or through BNPLC after the date of this
Agreement shall acquire such interest subject to the Purchase Option and NAI's
Initial Remarketing Rights and Obligations. Further, NAI and any Applicable
Purchaser shall be entitled to pay any payment required by this Agreement for
the purchase of the Property directly to BNPLC notwithstanding any prior
conveyance or assignment by BNPLC, voluntary or otherwise, of any right or
interest in this Agreement or the Property, and neither NAI nor any Applicable
Purchaser shall be responsible for the proper distribution or application of any
such payments by BNPLC; and any such payment to BNPLC shall discharge the
obligation of NAI to cause such payment to all Persons claiming an interest in
such payment. Contemporaneously with the execution of this Agreement, the
parties shall record a memorandum of this Agreement for purposes of effecting
constructive notice to all Persons of NAI's rights under this Agreement,
including its rights under this subparagraph.
(E) Security for the Purchase Option and NAI's Initial
Remarketing Rights and Obligations. To secure BNPLC's obligation to sell the
Property pursuant to this Paragraph 1(A) and to pay any damages to NAI caused by
a breach of such obligations, including any such breach caused by a rejection or
termination of this Agreement in any bankruptcy or insolvency proceeding
instituted by or against BNPLC, as debtor, BNPLC does hereby grant to NAI a lien
and security interest against all rights, title and interests of BNPLC from time
to time in and to the Land and other Property. NAI may enforce such lien and
security interest judicially after any such breach by BNPLC, but not otherwise.
Contemporaneously with the execution of this Agreement, NAI and BNPLC will
execute a memorandum of this Agreement which is in recordable form and which
specifically references the lien granted in this subparagraph, and NAI shall be
entitled to record such memorandum at any time prior to the Designated Sale
Date.
(F) Delivery of Books and Records If BNPLC Retains the Property.
Unless NAI or its Affiliate or another Applicable Purchaser purchases the
Property pursuant to Paragraph 1(A), promptly after the Designated Sale Date NAI
shall deliver to BNPLC copies of books and records of NAI which will be
necessary or useful to any future owner's or occupant's use of the Property in
the manner permitted by the Land Lease.
2. NAI'S RIGHTS AND OPTIONS AFTER THE DESIGNATED SALE DATE.
(A) NAI's Extended Right to Remarket. During the two years
following the Designated Sale Date ("NAI'S EXTENDED REMARKETING PERIOD"), NAI
shall have the right ("NAI'S EXTENDED REMARKETING RIGHT") to cause an Applicable
Purchaser who is not an Affiliate of NAI to purchase the Property for a cash
purchase price not below the lesser of (I) the Minimum Extended Remarketing
Price (as defined below), or (II) if applicable, the Third Party Target Price
(as defined below) specified in any Third Party Sale Notice (as defined
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below) given by BNPLC pursuant to subparagraph 2(C)(2) within the ninety days
prior to the date (the "FINAL SALE DATE") upon which BNPLC receives such
purchase price from the Applicable Purchaser. NAI's Extended Remarketing Right
shall, however, be subject to all of the following conditions:
(1) The Property and BNPLC's interest in Escrowed
Proceeds, if any, shall not have been sold on the Designated Sale Date
as provided in Paragraph 1.
(2) No Voluntary Retention of the Property shall have
occurred as described in subparagraph 1(A)(2)(a).
(3) NAI's Extended Remarketing Right shall not have been
terminated pursuant to subparagraph 4(D) below because of NAI's failure
to make any Supplemental Payment required on the Designated Sale Date.
(4) NAI's Extended Remarketing Right shall not have been
terminated by BNPLC pursuant to subparagraph 4(E) below to facilitate
BNPLC's sale of the Property to a third party in accordance with
subparagraph 2(C).
(5) At least thirty days prior to the Final Sale Date, NAI
shall have notified BNPLC of (x) the date proposed by NAI as the Final
Sale Date (which must be a Business Day), (y) the full legal name of the
Applicable Purchaser and such other information as will be required to
prepare the Sale Closing Documents, and (z) the amount of the purchase
price that the Applicable Purchaser will pay (consistent with the
minimum required pursuant to the other provisions of this subparagraph
2(A)) for the Property.
(B) Definition of Minimum Extended Remarketing Price. As used
herein, "MINIMUM EXTENDED REMARKETING PRICE" means an amount equal to the sum of
the following:
(1) the amount by which the Break Even Price computed on
the Designated Sale Date exceeds any Supplemental Payment actually paid
to BNPLC on the Designated Sale Date, together with interest on such
excess computed at the Default Rate from the period commencing on the
Designated Sale Date and ending on the Final Sale Date, plus
(2) all out-of-pocket costs and expenses (including
withholding taxes [if any], other than Excluded Taxes, and Attorneys'
Fees) incurred by BNPLC in connection with the sale to the Applicable
Purchaser, to the extent not already included in the computation of
Break Even Price, and plus
(3) the sum of all Impositions, insurance premiums and
other Losses of every kind suffered or incurred by BNPLC or any other
Interested Party with respect to the ownership, operation or maintenance
of the Property on or after the Designated Sale Date (except to the
extent already reimbursed by any lessee of the Property after the
Designated Sale Date), together with interest on such Impositions,
insurance premiums and other Losses computed at the Default Rate from
the date paid or incurred to the Final Sale Date.
If, however, Losses described in the preceding clause (3) consist of claims
against BNPLC or another Interested Party that have not been liquidated prior to
the Final Sale Date (and, thus, such Losses have yet to be fixed in amount as of
the Final Sale Date), then NAI may elect to exclude any such Losses from the
computation of the Minimum Extended Remarketing Price by providing to BNPLC, for
the benefit of BNPLC and other Interested 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
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Even Price), any such written indemnity must be fully executed and delivered by
NAI on or prior to the Final Sale Date, must include provisions comparable to
subparagraphs 5(c)(ii), (iii), (iv) and (v) of the Land Lease and otherwise must
be in form and substance satisfactory to BNPLC.
(C) BNPLC's Right to Sell. After the Designated Sale Date, if the
Property has not already been sold by BNPLC pursuant to Paragraph 1 or this
Paragraph 2, BNPLC shall have the right to sell the Property or offer the
Property for sale to any third party on any terms believed to be appropriate by
BNPLC in its sole good faith business judgment; provided, however, that so long
as the conditions to NAI's Extended Remarketing Rights specified in subparagraph
2(A) continue to be satisfied:
(1) BNPLC shall not sell the Property to an Affiliate of
BNPLC on terms less favorable than those which BNPLC would require from
a prospective purchaser not an Affiliate of BNPLC;
(2) If BNPLC receives or desires to make a written
proposal (whether in the form of a "letter of intent" or other
nonbinding expression of interest or in the form of a more definitive
purchase and sale agreement) for a sale of the Property to a prospective
purchaser (a "THIRD PARTY SALE PROPOSAL"), and if on the basis of such
Third Party Sale Proposal BNPLC expects to enter into or to pursue
negotiations for a definitive purchase and sale agreement with the
prospective purchaser, then prior to executing any such definitive
agreement, BNPLC shall submit the Third Party Sale Proposal to NAI with
a notice (the "THIRD PARTY SALE NOTICE") explaining that (A) BNPLC is
then prepared to accept a price not below an amount specified in such
Third Party Sale Notice (the "THIRD PARTY TARGET PRICE") if BNPLC and
the prospective purchaser reach agreement on other terms and conditions
to be incorporated into a definitive purchase and sale agreement, and
(B) NAI's Extended Remarketing Right may be terminated pursuant to
subparagraph 4(E) of this Agreement unless NAI causes an Applicable
Purchaser to consummate a purchase of the Property pursuant to this
Paragraph 2 within ninety days after the date of such Third Party Sale
Notice.
(D) NAI's Right to Excess Sales Proceeds. If the cash price
actually paid by any third party purchasing the Property from BNPLC during NAI's
Extended Remarketing Period, including any price paid by an Applicable Purchaser
purchasing from BNPLC pursuant to this Paragraph 2, exceeds the Minimum Extended
Remarketing Price, then NAI shall be entitled to the excess; provided, that
BNPLC may offset and retain from the excess any and all sums that are then due
and unpaid from NAI to BNPLC under any of the Operative Documents.
(E) Permitted Transfers During NAI's Extended Remarketing Period.
Any "Permitted Transfer" described in clause (6) of the definition thereof in
the Common Definitions and Provisions Agreement (Phase IV - Land) to an
Affiliate of BNPLC or that covers BNPLC's entire interest in the Land will be
subject to NAI's Extended Remarketing Right if, at the time of the Permitted
Transfer, NAI's Extended Remarketing Right has not expired or been terminated as
provided herein. Any other Permitted Transfer described in clause (6) of the
definition thereof, however, will not be subject to NAI's Extended Remarketing
Right. Thus, for example, BNPLC's conveyance of a utility easement or space
lease more than thirty days after the Designated Sale Date to a Person not an
Affiliate of BNPLC shall not be subject to NAI's Extended Remarketing Right,
though following the conveyance of the lesser estate, NAI's Extended Remarketing
Right may continue to apply to BNPLC's remaining interest in the Land and any
Personal Property.
3. TERMS OF CONVEYANCE UPON PURCHASE. As necessary to consummate any
sale of the Property to NAI or an Applicable Purchaser pursuant to this
Agreement, BNPLC must, subject to any postponement permitted by subparagraph
1(C), promptly after the tender of the purchase price and any other payments to
BNPLC required pursuant to Paragraph 1 or Paragraph 2, as applicable, convey all
of BNPLC's right,
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title and interest in the Land and other Property to NAI or the Applicable
Purchaser, as the case may be, by BNPLC's execution, acknowledgment (where
appropriate) and delivery of the Sale Closing Documents. Such conveyance by
BNPLC will be subject only to the Permitted Encumbrances and any other
encumbrances that do not constitute Liens Removable by BNPLC. However, such
conveyance shall not include the rights of BNPLC or other Interested Parties
under the indemnities provided in the Operative Documents, including rights to
any payments then due from NAI under the indemnities or that may become due
thereafter because of any expense or liability incurred by BNPLC or another
Interested Party resulting in whole or in part from events or circumstances
occurring or alleged to have occurred before such conveyance. All costs, both
foreseen and unforeseen, of any purchase by NAI or an Applicable Purchaser
hereunder shall be the responsibility of the purchaser. The Sale Closing
Documents used to accomplish such conveyance shall consist of the following: (1)
a Corporation Grant Deed in the form attached as Exhibit B-1 or Exhibit B-2 or
Exhibit B-4, as required by Exhibit B, (2) if required by Exhibit B, a Ground
Lease in the form attached as Exhibit B-3, which NAI or the Applicable Purchase
must execute and return to BNPLC, (3) a ▇▇▇▇ of Sale and Assignment in the form
attached as Exhibit C, (4) an Acknowledgment of Disclaimer of Representations
and Warranties, in the form attached as Exhibit D, which NAI or the Applicable
Purchaser must execute and return to BNPLC, (5) a Secretary's Certificate in the
form attached as Exhibit E, and (6) a certificate concerning tax withholding in
the form attached as Exhibit F. If for any reason BNPLC fails to tender the Sale
Closing Documents as required by this ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ may cure such refusal
at any time before thirty days after receipt of a demand for such cure from NAI.
4. SURVIVAL AND TERMINATION OF THE RIGHTS AND OBLIGATIONS OF NAI AND
BNPLC.
(A) Status of this Agreement Generally. Except as expressly
provided herein, this Agreement shall not terminate; nor shall NAI have any
right to terminate this Agreement; nor shall NAI be entitled to any reduction of
the Break Even Price, any Deficiency, the Maximum Remarketing Obligation, any
Supplemental Payment or the Minimum Extended Remarketing Price hereunder; nor
shall the obligations of NAI to BNPLC under Paragraph 1 be affected, by reason
of (i) any damage to or the destruction of all or any part of the Property from
whatever cause (though it is understood that NAI will receive any remaining
Escrowed Proceeds yet to be applied as provided in the Land Lease that may
result from such damage if NAI purchases the Property and the Escrowed Proceeds
as herein provided), (ii) the taking of or damage to the Property or any portion
thereof by eminent domain or otherwise for any reason (though it is understood
that NAI will receive any remaining Escrowed Proceeds yet to be applied as
provided in the Land Lease that may result from such taking or damage if NAI
purchases the Property and the Escrowed Proceeds as herein provided), (iii) the
prohibition, limitation or restriction of NAI's use of all or any portion of the
Property or any interference with such use by governmental action or otherwise,
(iv) any eviction of NAI or any party claiming under NAI by paramount title or
otherwise, (v) NAI's prior acquisition or ownership of any interest in the
Property, (vi) any default on the part of BNPLC under this Agreement, the Land
Lease or any other agreement to which BNPLC is a party, or (vii) any other
cause, whether similar or dissimilar to the foregoing, any existing or future
law to the contrary notwithstanding. It is the intention of the parties hereto
that the obligations of NAI to make payment to BNPLC hereunder shall be separate
and independent covenants and agreements from BNPLC's obligations under this
Agreement or any other agreement between BNPLC and NAI; provided, however, that
nothing in this subparagraph shall excuse BNPLC from its obligation to tender
the Sale Closing Documents in substantially the form attached hereto as exhibits
when required by Paragraph 3. Further, nothing in this subparagraph shall be
construed as a waiver by NAI of any right NAI may have at law or in equity to
the following remedies, whether because of BNPLC's failure to remove a Lien
Removable by BNPLC or because of any other default by BNPLC under this
Agreement: (i) the recovery of monetary damages, (ii) injunctive relief in case
of the violation, or attempted or threatened violation, by BNPLC of any of the
express covenants, agreements, conditions or provisions of this Agreement which
are binding upon BNPLC, or (iii) a decree compelling performance by BNPLC of any
of the express covenants, agreements, conditions or provisions of this Agreement
which are binding upon BNPLC.
7
12
(B) Intentionally Deleted.
(C) Intentionally Deleted.
(D) Automatic Termination of NAI's Rights. Without limiting
BNPLC's right to enforce NAI's obligation to pay any Supplemental Payment or
other amounts required by this Agreement, the rights of NAI (to be distinguished
from the obligations of NAI) included in NAI's Initial Remarketing Rights and
Obligations, the Purchase Option and NAI's Extended Remarketing Rights shall all
terminate automatically if NAI shall fail to pay the full amount of any
Supplemental Payment required by subparagraph 1(A)(2)(c) on the Designated Sale
Date or if BNPLC shall elect a Voluntary Retention of the Property as provided
in subparagraph 1(A)(2)(a). However, notwithstanding anything in this
subparagraph to the contrary, even after a failure to pay any required
Supplemental Payment on the Designated Sale Date, NAI may nonetheless tender to
BNPLC the full Break Even Price and all amounts then due under the Operative
Documents, together with interest on the total Break Even Price computed at the
Default Rate from the Designated Sale Date to the date of tender, on any
Business Day within thirty days after the Designated Sale Date, and if presented
with such a tender within thirty days after the Designated Sale Date, BNPLC must
accept it and promptly thereafter deliver any Escrowed Proceeds and the Sale
Closing Documents listed in Paragraph 3 to NAI.
(E) Termination of NAI's Extended Remarketing Rights to Permit a
Sale by BNPLC. At any time more than ninety days after BNPLC has delivered a
Third Party Sale Notice to NAI as described in subparagraph 2(C)(2), BNPLC may
terminate NAI's Extended Remarketing Rights contemporaneously with the
consummation of a sale of the Property by BNPLC to any third party (be it the
prospective purchaser named in the Third Party Sale Notice or another third
party) at a price equal to or in excess of the Third Party Target Price
specified in the Third Party Sale Notice, so as to permit the sale of the
Property unencumbered by NAI's Extended Remarketing Rights.
(F) Payment Only to BNPLC. All amounts payable under this
Agreement by NAI and, if applicable, by an Applicable Purchaser must be paid
directly to BNPLC, and no payment to any other party shall be effective for the
purposes of this Agreement. In addition to the payments required under
subparagraph 1(A), on the Designated Sale Date NAI must pay all amounts then due
to BNPLC under the Land Lease or other Operative Documents.
(G) Remedies Under the Other Operative Documents. No repossession
of or re-entering upon the Property or exercise of any other remedies available
to BNPLC under the Land Lease or other Operative Documents shall terminate NAI's
rights or obligations hereunder, all of which shall survive BNPLC's exercise of
remedies under the other Operative Documents. NAI acknowledges that the
consideration for this Agreement is separate and independent of the
consideration for the Land Lease and the Closing Certificate, and NAI's
obligations hereunder shall not be affected or impaired by any event or
circumstance that would excuse NAI from performance of its obligations under
such other Operative Documents.
(H) Occupancy by NAI Prior to Closing of a Sale. Prior to the
closing of any sale of the Property to NAI or an Applicable Purchaser hereunder,
NAI's occupancy of the 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 NAI'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 NAI'S OBLIGATIONS; RETURN OF FUNDS. NAI's obligations
under this Agreement are secured by the Pledge Agreement, reference to which is
hereby made for a description of the Collateral covered thereby and the rights
and remedies provided to BNPLC thereby. Although the collateral agent
8
13
appointed for BNPLC as provided in the Pledge Agreement shall be entitled to
hold all Collateral as security for the full and faithful performance by NAI of
NAI's covenants and obligations under this Agreement, the Collateral shall not
be considered an advance payment of the Break Even Price or any Supplemental
Payment or a measure of BNPLC's damages should NAI breach this Agreement. If NAI
does breach this Agreement and fails to cure the same within any time specified
herein for the cure, BNPLC may, from time to time, without prejudice to any
other remedy and without notice to NAI, require the collateral agent to
immediately apply the proceeds of any disposition of the Collateral (and any
cash included in the Collateral) to amounts then due hereunder from NAI. If by a
Permitted Transfer BNPLC conveys its interest in the Property before the
Designated Sale Date, BNPLC may also assign BNPLC's interest in the Collateral
to the transferee. BNPLC shall be entitled to return any Collateral not sold or
used to satisfy the obligations secured by the Pledge Agreement directly to NAI
notwithstanding any prior actual or attempted conveyance or assignment by NAI,
voluntary or otherwise, of any right to receive the same; neither BNPLC nor the
collateral agent named in the Pledge Agreement shall be responsible for the
proper distribution or application by NAI of any such Collateral returned to
NAI; and any such return of Collateral to NAI shall discharge any obligation of
BNPLC to deliver such Collateral to all Persons claiming an interest in the
Collateral. Further, BNPLC shall be entitled to deliver any Escrowed Proceeds it
holds on the Designated Sale Date directly to NAI or to any Applicable Purchaser
purchasing BNPLC's interest in the Property and the Escrowed Proceeds pursuant
to this Agreement notwithstanding any prior actual or attempted conveyance or
assignment by NAI, voluntary or otherwise, of any right to receive the same;
BNPLC shall not be responsible for the proper distribution or application by NAI
or any Applicable Purchaser of any such Escrowed Proceeds paid over to NAI or
the Applicable Purchaser; and any such payment of Escrowed Proceeds to NAI or an
Applicable Purchaser shall discharge any obligation of BNPLC to deliver the same
to all Persons claiming an interest therein.
6. CERTAIN REMEDIES CUMULATIVE. No right or remedy herein conferred upon
or reserved to BNPLC is intended to be exclusive of any other right or remedy
BNPLC has with respect to the Property, and each and every right and remedy
shall be cumulative and in addition to any other right or remedy given hereunder
or now or hereafter existing at law or in equity or by statute. In addition to
other remedies available under this Agreement, either party shall be entitled,
to the extent permitted by applicable law, to a decree compelling performance of
any of the other party's agreements hereunder.
7. ATTORNEYS' FEES AND LEGAL EXPENSES. If either party to this Agreement
commences any legal action or other proceeding to enforce any of the terms of
this Agreement, or because of any breach by the other party or dispute
hereunder, the party prevailing in such action or proceeding shall be entitled
to recover from the other party all Attorneys' Fees incurred in connection
therewith, whether or not such controversy, claim or dispute is prosecuted to a
final judgment. Any such Attorneys' Fees incurred by either party in enforcing a
judgment in its favor under this Agreement shall be recoverable separately from
such judgment, and the obligation for such Attorneys' Fees is intended to be
severable from other provisions of this Agreement and not to be merged into any
such judgment.
8. ESTOPPEL CERTIFICATE. Upon request by BNPLC, NAI shall execute,
acknowledge and deliver a written statement certifying that this Agreement is
unmodified and in full effect (or, if there have been modifications, that this
Agreement is in full effect as modified, and setting forth such modification)
and either stating that no default exists hereunder or specifying each such
default of which NAI has knowledge. Any such statement may be relied upon by any
Participant or prospective purchaser or assignee of BNPLC with respect to the
Property.
9. SUCCESSORS AND ASSIGNS. The terms, provisions, covenants and
conditions hereof shall be binding upon NAI and BNPLC and their respective
permitted successors and assigns and shall inure to the benefit of NAI and BNPLC
and all permitted transferees, mortgagees, successors and assignees of NAI and
BNPLC with respect to the Property; provided, that (A) the rights of BNPLC
hereunder shall not pass to NAI or any Applicable
9
14
Purchaser or any subsequent owner claiming through NAI or an Applicable
Purchaser, (B) BNPLC shall not assign this Agreement or any rights hereunder
except pursuant to a Permitted Transfer, and (C) NAI shall not assign this
Agreement or any rights hereunder without the prior written consent of BNPLC.
[Signature pages follow.]
10
15
IN WITNESS WHEREOF, NAI and BNPLC have caused this Agreement to be
executed as of December ___, 1999.
"NAI"
NETWORK APPLIANCE, INC.
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
16
[Continuation of signature pages to Purchase Agreement (Phase IV - Land) dated
to be effective December ___, 1999.]
"BNPLC"
BNP LEASING CORPORATION
By:
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇, Vice President
17
EXHIBIT A
LEGAL DESCRIPTION
The real property located in the City of Sunnyvale, County of Santa ▇▇▇▇▇, State
of California, described as follows:
TRACT 1:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map lying
within the City of Sunnyvale, being a resubdivision of a portion of Parcel B, as
shown upon that certain Parcel Map recorded in Book 345 of Maps, at page 20,
Santa ▇▇▇▇▇ County Records", which Map was filed for record in the Office of the
Recorder of the County of Santa ▇▇▇▇▇, State of California, on November 17,
1976, in Book 383 of Maps, at page 35.
TRACT 2:
Together with an easement for vehicles parking over the following described
property:
A 7-foot strip of land for parking easement purposes over a portion of Parcel A,
as said Parcel A is shown on that certain Parcel Map filed for record on
November 10, 1974 in Book 292 of Maps, at page 41, records of said County, and
being more particularly described as follows:
Commencing at the Northeast corner of said Parcel A; thence North
75[degrees]8'27" West 500.00 feet along the Northeasterly line of said Parcel A;
thence South 14[degrees]51'33" West 7.00 feet; thence parallel to Northeasterly
line of said Parcel A, South 75[degrees]08'27" East 500.00 feet to the Southeast
line of said Parcel A, North 14[degrees]51'33" East 7.00 feet to the point of
beginning.
APN: ▇▇▇-▇▇-▇▇▇
ARB: 110-3-65.02
TRACT 3:
Parcel 1, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of Santa ▇▇▇▇▇, State of California on July
7, 1994, in Book 657 of Parcel Maps, Page 9.
APN: 110-32-6
ARB: 110-3-x65
TRACT 4:
Parcel 2, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of Santa ▇▇▇▇▇, State of California on July
7, 1994, in Book 657 of Parcel Maps, Page 9.
APN: 110-32-7
ARB: 110-3-x65
18
TRACT 5:
Parcel 2, as shown on that certain parcel Map which filed for record in the
office of the recorder of the County of Santa ▇▇▇▇▇, State of California on
October 7, 1998, in Book 708 of Parcel Maps, Pages 51 and 52.
APN: ▇▇▇-▇▇-▇▇
ARB: 110-03-65.11
19
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 NAI 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
NAI or an Applicable Purchaser at the same time, because a sale under this
Purchase Agreement and a sale under the Other Purchase Agreement (covering the
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.
20
EXHIBIT B-1
CORPORATION GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
NAME: [NAI or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE: ___________________
Zip: ___________________
MAIL TAX STATEMENTS TO:
NAME: [NAI or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE: ___________________
Zip: ___________________
CORPORATION GRANT DEED
(Covering Land and Improvements)
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, BNP
LEASING CORPORATION, a Delaware corporation ("Grantor"), hereby grants to [NAI
or the Applicable Purchaser] ("Grantee") all of Grantor's interest in the land
situated in Sunnyvale, California, described on Annex A attached hereto and
hereby made a part hereof and all improvements on such land, together with the
any other right, title and interest of Grantor in and to any easements,
rights-of-way, privileges and other rights appurtenant to such land or the
improvements thereon; provided, however, that this grant is subject to the
encumbrances described on Annex B (the "Permitted Encumbrances"). Grantee hereby
assumes the obligations (including any personal obligations) of Grantor, if any,
created by or under, and agrees to be bound by the terms and conditions of, the
Permitted Encumbrances to the extent that the same concern or apply to the land
or improvements conveyed by this deed.
21
BNP LEASING CORPORATION
Date: As of By:
------------ ---------------------------------
Its:
Attest:
---------------------------------
Its:
[NAI or Applicable Purchaser]
Date: As of By:
------------ ---------------------------------
Its:
Attest:
---------------------------------
Its:
STATE OF ____________ )
) SS
COUNTY OF ___________ )
On ___________________ before me, , personally appeared and , personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
persons whose names are subscribed to the within instrument and acknowledged to
me that they executed the same in their authorized capacities, and that by their
signatures on the instrument the person, or the entity upon behalf of which the
persons acted, executed the instrument.
WITNESS my hand and official seal.
Signature
----------------------------
EXHIBIT B-1 - PAGE 2
22
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
23
ANNEX A
LEGAL DESCRIPTION
[DRAFTING NOTE: TO THE EXTENT THAT THE "LAND" COVERED BY THE LAND LEASE CHANGES
FROM TIME TO TIME BECAUSE OF ADJUSTMENTS FOR WHICH NAI REQUESTS BNPLC'S CONSENT
OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY SUCH
CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING NOTE"
WILL BE DELETED BEFORE THE DEED TO WHICH THIS DESCRIPTION IS ATTACHED IS
ACTUALLY EXECUTED AND DELIVERED.]
The real property located in the City of Sunnyvale, County of Santa ▇▇▇▇▇, State
of California, described as follows:
TRACT 1:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map lying
within the City of Sunnyvale, being a resubdivision of a portion of Parcel B, as
shown upon that certain Parcel Map recorded in Book 345 of Maps, at page 20,
Santa ▇▇▇▇▇ County Records", which Map was filed for record in the Office of the
Recorder of the County of Santa ▇▇▇▇▇, State of California, on November 17,
1976, in Book 383 of Maps, at page 35.
TRACT 2:
Together with an easement for vehicles parking over the following described
property:
A 7-foot strip of land for parking easement purposes over a portion of Parcel A,
as said Parcel A is shown on that certain Parcel Map filed for record on
November 10, 1974 in Book 292 of Maps, at page 41, records of said County, and
being more particularly described as follows:
Commencing at the Northeast corner of said Parcel A; thence North
75[degrees]8'27" West 500.00 feet along the Northeasterly line of said Parcel A;
thence South 14[degrees]51'33" West 7.00 feet; thence parallel to Northeasterly
line of said Parcel A, South 75[degrees]08'27" East 500.00 feet to the Southeast
line of said Parcel A, North 14[degrees]51'33" East 7.00 feet to the point of
beginning.
APN: ▇▇▇-▇▇-▇▇▇
ARB: 110-3-65.02
TRACT 3:
Parcel 1, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of Santa ▇▇▇▇▇, State of California on July
7, 1994, in Book 657 of Parcel Maps, Page 9.
APN: 110-32-6
ARB: 110-3-x65
TRACT 4:
Parcel 2, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of
EXHIBIT ▇-▇ - ▇▇▇▇ ▇
▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ of California on July 7, 1994, in Book 657 of Parcel Maps,
Page 9.
APN: 110-32-7
ARB: 110-3-x65
TRACT 5:
Parcel 2, as shown on that certain parcel Map which filed for record in the
office of the recorder of the County of Santa ▇▇▇▇▇, State of California on
October 7, 1998, in Book 708 of Parcel Maps, Pages 51 and 52.
APN: ▇▇▇-▇▇-▇▇
ARB: 110-03-65.11
EXHIBIT B-1 - PAGE 5
25
ANNEX B
PERMITTED ENCUMBRANCES
[DRAFTING NOTE: TO THE EXTENT THAT ENCUMBRANCES (OTHER THAN "LIENS REMOVABLE BY
BNPLC") ARE IDENTIFIED IN ADDITION TO THOSE DESCRIBED BELOW, SUCH ADDITIONAL
ENCUMBRANCES WILL BE ADDED TO THE LIST BELOW AND THIS "DRAFTING NOTE" WILL BE
DELETED BEFORE THIS DEED IS ACTUALLY EXECUTED AND DELIVERED BY BNPLC. SUCH
ADDITIONAL ENCUMBRANCES WOULD INCLUDE ANY NEW ENCUMBRANCES APPROVED BY BNPLC AS
"PERMITTED ENCUMBRANCES" UNDER THE LAND LEASE OR THE OTHER LEASE AGREEMENT FROM
TIME TO TIME OR BECAUSE OF NAI'S REQUEST FOR BNPLC'S CONSENT OR APPROVAL TO AN
ADJUSTMENT.]
This conveyance is subject to all encumbrances not constituting a "Lien
Removable by BNPLC" (as defined in the Common Definitions and Provisions
Agreement (Phase IV - Land) incorporated by reference into the Lease Agreement
(Phase IV - 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:
TRACT 1 and 2:
1. TAXES for the fiscal year 1999-2000, a lien not yet due or payable.
2. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
3. LIMITATIONS, covenants, conditions, restrictions, reservations,
exceptions or terms, but deleting any covenant, condition or restriction
indicating a preference, limitation or discrimination based on race,
color, religion, sex, handicap, familial status, or national origin to
the extent such covenants, conditions or restrictions violate 42 USC
3604(c), contained in the document recorded December 23, 1971 in Book
9640, page 443, Official Records.
Assignments and Assumption, executed by ▇▇▇▇▇▇▇ Park Associates, a
partnership to Prudential Insurance Company of America, recorded
February 8, 1977 in Book C583, page 685, Official Records.
4. AGREEMENT on the terms and conditions contained therein,
For : Waiver of Construction Credits
Between : ▇▇▇▇▇▇▇ Park Associates
And : None Shown
Recorded : September 28, 1976 in Book C307, page 346, Official
Records.
5. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Construction, reconstruction, operation, repair,
maintenance, replacement, relocation and enlargement of
Public Utilities
Granted to : The City of Sunnyvale, a municipal corporation
Recorded : November 16, 1976 in Book C414, page 105, Official
Records
Affects : as follows:
Being a portion of Parcel B as shown on that certain Parcel Map recorded
August 28, 1974 in Book of Maps, at page 20, Santa ▇▇▇▇▇ County Records;
a strip of land 10 feet in width, measured at right angles lying
Northerly and Easterly of and contiguous to the following described
line; beginning at the
EXHIBIT B-1 - PAGE 6
26
intersection of the Westerly line of ▇▇▇▇▇▇▇▇ Road, 90 feet in width,
with the Northerly line of Parcel A as shown on said Map; thence North
75[degrees]7'58" West along said Northerly line of Parcel A 450.13 feet;
thence leaving said Northerly line, North 30[degrees]7'48" West 210.69
feet; thence North 75[degrees]8'27" West 391.04 feet to a point on the
Easterly line of the proposed ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ feet wide, said point
being the terminus of said easement.
6. ANY RIGHTS, interests, or claims adverse to those of the vestee herein
which may exist or arise by reason of the following facts shown on a
survey plat entitled ALTA/ACSM Land Title Survey for: Network Appliance,
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated December 2, 1999, prepared by ▇▇▇▇ & ▇▇▇▇▇▇,
Job No. 97208-16.
TRACT 3:
1. TAXES for the fiscal year 1999-2000, a lien not yet due or payable.
2. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
3. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Slope Easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 430, Official Records
Affects : Easterly 18 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated December 2, 1999, prepared by
▇▇▇▇ & ▇▇▇▇▇▇, Job No. 97208-16.
4. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 450, Official Records
Affects : Easterly 7 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated December 2, 1999, prepared by
▇▇▇▇ & ▇▇▇▇▇▇, Job No. 97208-16.
5. Covenants, Conditions and Restrictions in the Declaration of Protective
Covenants - ▇▇▇▇▇▇▇ Industrial Park No. 2) recorded December 23, 1971 in
Book 9640, page 443, Official Records; which provide that a violation
thereof shall not defeat or render invalid the lien of any Mortgage or
Deed of Trust made in good faith and for value. Said Covenants,
Conditions and Restrictions do not provide for reversion of title in the
event of a breach thereof. Restrictions, if any, based upon race, color,
religion, sex, handicap, familial status, or national origin are
deleted, unless and only to the extent that said covenant (a) is exempt
under Chapter 42, Section 3607, of the United States Code, or (b)
related to handicap but does not discriminate against handicapped
persons.
ASSIGNMENT AND ASSUMPTION of the rights, powers, duties, obligations,
and reservations of ▇▇▇▇▇▇▇ Park Associates, in favor of The Prudential
Insurance Company of America, recorded February 8, 1977 in Book C583,
page 685, Official Records.
EXHIBIT B-1 - PAGE 7
27
6. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities
Granted to : City of Sunnyvale
Recorded : November 16, 1976 in Book C414, page 105, Official
Records
Affects : Southerly 10 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated December 2, 1999, prepared by
▇▇▇▇ & ▇▇▇▇▇▇, Job No. 97208-16.
7. LIMITATIONS, covenants, restrictions, reservations, exceptions or terms,
but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained
in the document recorded February 5, 1980 in Book F122, page 460,
Official Records.
8. ANY RIGHTS, interests, or claims adverse to those of the vestee herein
which may exist or arise by reason of the following facts shown on a
survey plat entitled ALTA/ACSM Land Title Survey for: Network Appliance,
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated December 2, 1999, prepared by ▇▇▇▇ & ▇▇▇▇▇▇,
Job No. 97208-16.
(a) The fact that a chain link fence extends across the southerly
boundary of said land.
TRACT 4:
9. TAXES for the fiscal year 1999-2000, a lien not yet due or payable.
10. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
11. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Slope Easement
In favor of : City of Sunnyvale
Recorded : November 16, 1976 in Book C414, page 90, Official
Records
Affects : Westerly 5 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated December 2, 1999, prepared by
▇▇▇▇ & ▇▇▇▇▇▇, Job No. 97208-16.
12. EASEMENT recorded on that certain Map for the purposes stated herein and
incidents thereto
Purpose : Public utilities easement
Recorded : July 7, 1994 in Book 657 of Maps, page 9, Official
Records
Affects : Westerly 10 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated December 2, 1999, prepared by
▇▇▇▇ & ▇▇▇▇▇▇, Job No. 97208-16.
13. Covenants, Conditions and Restrictions in the Declaration of Protective
Covenants - ▇▇▇▇▇▇▇ Industrial Park No. 2) recorded December 23, 1971 in
Book 9640, page 443, Official Records; which provide that a violation
thereof shall not defeat or render invalid the lien of any Mortgage or
Deed of Trust made in good faith and for value. Said Covenants,
Conditions and Restrictions do not provide for reversion of title in the
event of a breach thereof. Restrictions, if any, based upon race, color,
religion, sex, handicap, familial status, or national origin are
deleted, unless and only to the extent that said covenant (a) is exempt
under Chapter 42, Section 3607, of the United States Code, or (b)
related to handicap but does not discriminate against handicapped
persons.
EXHIBIT B-1 - PAGE 8
28
ASSIGNMENT AND ASSUMPTION of the rights, powers, duties, obligations,
and reservations of ▇▇▇▇▇▇▇ Park Associates, in favor of The Prudential
Insurance Company of America, recorded February 8, 1977 in Book C583,
page 685, Official Records.
14. LIMITATIONS, covenants, restrictions, reservations, exceptions or terms,
but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained
in the document recorded February 5, 1980 in Book F122, page 460,
Official Records.
TRACT 5:
15. TAXES for the fiscal year 1999-2000, a lien not yet due or payable.
16. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
17. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Slope Easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 430, Official Records
Affects : The Northeasterly and Easterly 18 feet, as shown on a
survey plat entitled ALTA/ACSM Land Title Survey for:
Network Appliance, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated December
2, 1999, prepared by ▇▇▇▇ & ▇▇▇▇▇▇, Job No. 97208-16.
18. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 450, Official Records
Affects : The Northeasterly and Easterly 7 feet, as shown on a
survey plat entitled ALTA/ACSM Land Title Survey for:
Network Appliance, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated December
2, 1999, prepared by ▇▇▇▇ & ▇▇▇▇▇▇, Job No. 97208-16.
19. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Sidewalk and sign easement
Recorded : July 7, 1994, in Book 657 of Maps, page 9, Official
Records
Affects : The Northerly 2 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated December 2, 1999, prepared by
▇▇▇▇ & ▇▇▇▇▇▇, Job No. 97208-16.
20. LIMITATIONS, covenants, restrictions, reservations, exceptions or terms,
but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained
in the document recorded February 5, 1980 in Book F122, page 460,
Official Records.
EXHIBIT B-1 - PAGE 9
29
21. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities easement
Recorded : October 7, 1998, in Book 708 of Maps, pages 51-52,
Official Records
Affects : The Northerly 15 feet, as shown on a survey plat
entitled ALTA/ACSM Land Title Survey for: Network
Appliance, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated December 2, 1999,
prepared by ▇▇▇▇ & ▇▇▇▇▇▇, Job No. 97208-16.
EXHIBIT B-1 - PAGE 10
30
EXHIBIT B-2
CORPORATION GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
NAME: [NAI or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE: ___________________
Zip: ___________________
MAIL TAX STATEMENTS TO:
NAME: [NAI or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE: ___________________
Zip: ___________________
CORPORATION GRANT DEED
(Covering Land but not the Improvements On the Land)
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, BNP
LEASING CORPORATION, a Delaware corporation ("Grantor"), hereby grants to [NAI
or the Applicable Purchaser] ("Grantee") all of Grantor's interest in the land
situated in Sunnyvale, California, described on Annex A attached hereto and
hereby made a part hereof (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 Land; 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 Land.
Although this deed conveys Grantor's interest in the Land itself, this deed does
not convey any interest in any buildings or other improvements on the Land
(collectively, "Improvements") or any rights or easements appurtenant to
Improvements. Grantor retains and reserves all right, title and interest of
Grantor in and to Improvements and any rights and easements appurtenant to
Improvements, together with a leasehold estate in and to the Land and any rights
and easements appurtenant to the Land, which leasehold estate will permit the
construction, maintenance and use of Improvements by Grantor and Grantor's
successors and assigns on and subject to the terms and conditions set forth in
the Ground Lease dated of even date herewith, executed by Grantee, as lessor,
and Grantor, as lessee. Reference is made to such Ground Lease, all the terms
and conditions of which are incorporated into this deed as if set forth herein.
31
BNP LEASING CORPORATION
Date: As of By:
------------ ---------------------------------
Its:
Attest:
---------------------------------
Its:
[NAI or Applicable Purchaser]
Date: As of By:
------------ ---------------------------------
Its:
Attest:
---------------------------------
Its:
STATE OF ____________ )
) SS
COUNTY OF ___________ )
On ___________________ before me, _______________________ , personally
appeared ____________________ and ____________________, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the persons whose
names are subscribed to the within instrument and acknowledged to me that they
executed the same in their authorized capacities, and that by their signatures
on the instrument the person, or the entity upon behalf of which the persons
acted, executed the instrument.
WITNESS my hand and official seal.
Signature
----------------------------
EXHIBIT B-2 - PAGE 2
32
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
33
ANNEX A
LEGAL DESCRIPTION
[DRAFTING NOTE: TO THE EXTENT THAT THE "LAND" COVERED BY THE LAND LEASE CHANGES
FROM TIME TO TIME BECAUSE OF ADJUSTMENTS FOR WHICH NAI REQUESTS BNPLC'S CONSENT
OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY SUCH
CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING NOTE"
WILL BE DELETED BEFORE THE DEED TO WHICH THIS DESCRIPTION IS ATTACHED IS
ACTUALLY EXECUTED AND DELIVERED.]
The real property located in the City of Sunnyvale, County of Santa ▇▇▇▇▇, State
of California, described as follows:
TRACT 1:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map lying
within the City of Sunnyvale, being a resubdivision of a portion of Parcel B, as
shown upon that certain Parcel Map recorded in Book 345 of Maps, at page 20,
Santa ▇▇▇▇▇ County Records", which Map was filed for record in the Office of the
Recorder of the County of Santa ▇▇▇▇▇, State of California, on November 17,
1976, in Book 383 of Maps, at page 35.
TRACT 2:
Together with an easement for vehicles parking over the following described
property:
A 7-foot strip of land for parking easement purposes over a portion of Parcel A,
as said Parcel A is shown on that certain Parcel Map filed for record on
November 10, 1974 in Book 292 of Maps, at page 41, records of said County, and
being more particularly described as follows:
Commencing at the Northeast corner of said Parcel A; thence North
75[degrees]8'27" West 500.00 feet along the Northeasterly line of said Parcel A;
thence South 14[degrees]51'33" West 7.00 feet; thence parallel to Northeasterly
line of said Parcel A, South 75[degrees]08'27" East 500.00 feet to the Southeast
line of said Parcel A, North 14[degrees]51'33" East 7.00 feet to the point of
beginning.
APN: ▇▇▇-▇▇-▇▇▇
ARB: 110-3-65.02
TRACT 3:
Parcel 1, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of Santa ▇▇▇▇▇, State of California on July
7, 1994, in Book 657 of Parcel Maps, Page 9.
APN: 110-32-6
ARB: 110-3-x65
TRACT 4:
Parcel 2, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of
EXHIBIT ▇-▇ - ▇▇▇▇ ▇
▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ of California on July 7, 1994, in Book 657 of Parcel Maps,
Page 9.
APN: 110-32-7
ARB: 110-3-x65
TRACT 5:
Parcel 2, as shown on that certain parcel Map which filed for record in the
office of the recorder of the County of Santa ▇▇▇▇▇, State of California on
October 7, 1998, in Book 708 of Parcel Maps, Pages 51 and 52.
APN: ▇▇▇-▇▇-▇▇
ARB: 110-03-65.11
EXHIBIT B-2 - PAGE 5
35
ANNEX B
PERMITTED ENCUMBRANCES
[DRAFTING NOTE: TO THE EXTENT THAT ENCUMBRANCES (OTHER THAN "LIENS REMOVABLE BY
BNPLC") ARE IDENTIFIED IN ADDITION TO THOSE DESCRIBED BELOW, SUCH ADDITIONAL
ENCUMBRANCES WILL BE ADDED TO THE LIST BELOW AND THIS "DRAFTING NOTE" WILL BE
DELETED BEFORE THIS DEED IS ACTUALLY EXECUTED AND DELIVERED BY BNPLC. SUCH
ADDITIONAL ENCUMBRANCES WOULD INCLUDE ANY NEW ENCUMBRANCES APPROVED BY BNPLC AS
"PERMITTED ENCUMBRANCES" UNDER THE LAND LEASE OR THE OTHER LEASE AGREEMENT FROM
TIME TO TIME OR BECAUSE OF NAI'S REQUEST FOR BNPLC'S CONSENT OR APPROVAL TO AN
ADJUSTMENT.]
This conveyance is subject to all encumbrances not constituting a "Lien
Removable by BNPLC" (as defined in the Common Definitions and Provisions
Agreement (Phase IV - Land) incorporated by reference into the Lease Agreement
(Phase IV - 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:
TRACT 1 and 2:
1. TAXES for the fiscal year 1999-2000, a lien not yet due or payable.
2. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
3. LIMITATIONS, covenants, conditions, restrictions, reservations,
exceptions or terms, but deleting any covenant, condition or restriction
indicating a preference, limitation or discrimination based on race,
color, religion, sex, handicap, familial status, or national origin to
the extent such covenants, conditions or restrictions violate 42 USC
3604(c), contained in the document recorded December 23, 1971 in Book
9640, page 443, Official Records.
Assignments and Assumption, executed by ▇▇▇▇▇▇▇ Park Associates, a
partnership to Prudential Insurance Company of America, recorded
February 8, 1977 in Book C583, page 685, Official Records.
4. AGREEMENT on the terms and conditions contained therein,
For : Waiver of Construction Credits
Between : ▇▇▇▇▇▇▇ Park Associates
And : None Shown
Recorded : September 28, 1976 in Book C307, page 346, Official
Records.
5. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Construction, reconstruction, operation, repair,
maintenance, replacement, relocation and enlargement of
Public Utilities
Granted to : The City of Sunnyvale, a municipal corporation
Recorded : November 16, 1976 in Book C414, page 105, Official
Records
Affects : as follows:
Being a portion of Parcel B as shown on that certain Parcel Map recorded
August 28, 1974 in Book of Maps, at page 20, Santa ▇▇▇▇▇ County Records;
a strip of land 10 feet in width, measured at right angles lying
Northerly and Easterly of and contiguous to the following described
line; beginning at the
EXHIBIT B-2 - PAGE 6
36
intersection of the Westerly line of ▇▇▇▇▇▇▇▇ Road, 90 feet in width,
with the Northerly line of Parcel A as shown on said Map; thence North
75[degrees]7'58" West along said Northerly line of Parcel A 450.13 feet;
thence leaving said Northerly line, North 30[degrees]7'48" West 210.69
feet; thence North 75[degrees]8'27" West 391.04 feet to a point on the
Easterly line of the proposed ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ feet wide, said point
being the terminus of said easement.
6. ANY RIGHTS, interests, or claims adverse to those of the vestee herein
which may exist or arise by reason of the following facts shown on a
survey plat entitled ALTA/ACSM Land Title Survey for: Network Appliance,
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated December 2, 1999, prepared by ▇▇▇▇ & ▇▇▇▇▇▇,
Job No. 97208-16.
TRACT 3:
22. TAXES for the fiscal year 1999-2000, a lien not yet due or payable.
23. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
24. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Slope Easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 430, Official Records
Affects : Easterly 18 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated December 2, 1999, prepared by
▇▇▇▇ & ▇▇▇▇▇▇, Job No. 97208-16.
25. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 450, Official Records
Affects : Easterly 7 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated December 2, 1999, prepared by
▇▇▇▇ & ▇▇▇▇▇▇, Job No. 97208-16.
26. Covenants, Conditions and Restrictions in the Declaration of Protective
Covenants - ▇▇▇▇▇▇▇ Industrial Park No. 2) recorded December 23, 1971 in
Book 9640, page 443, Official Records; which provide that a violation
thereof shall not defeat or render invalid the lien of any Mortgage or
Deed of Trust made in good faith and for value. Said Covenants,
Conditions and Restrictions do not provide for reversion of title in the
event of a breach thereof. Restrictions, if any, based upon race, color,
religion, sex, handicap, familial status, or national origin are
deleted, unless and only to the extent that said covenant (a) is exempt
under Chapter 42, Section 3607, of the United States Code, or (b)
related to handicap but does not discriminate against handicapped
persons.
ASSIGNMENT AND ASSUMPTION of the rights, powers, duties, obligations,
and reservations of ▇▇▇▇▇▇▇ Park Associates, in favor of The Prudential
Insurance Company of America, recorded February 8, 1977 in Book C583,
page 685, Official Records.
EXHIBIT B-2 - PAGE 7
37
27. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities
Granted to : City of Sunnyvale
Recorded : November 16, 1976 in Book C414, page 105, Official
Records
Affects : Southerly 10 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated December 2, 1999, prepared by
▇▇▇▇ & ▇▇▇▇▇▇, Job No. 97208-16.
28. LIMITATIONS, covenants, restrictions, reservations, exceptions or terms,
but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained
in the document recorded February 5, 1980 in Book F122, page 460,
Official Records.
29. ANY RIGHTS, interests, or claims adverse to those of the vestee herein
which may exist or arise by reason of the following facts shown on a
survey plat entitled ALTA/ACSM Land Title Survey for: Network Appliance,
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated December 2, 1999, prepared by ▇▇▇▇ & ▇▇▇▇▇▇,
Job No. 97208-16.
(a) The fact that a chain link fence extends across the southerly
boundary of said land.
TRACT 4:
30. TAXES for the fiscal year 1999-2000, a lien not yet due or payable.
31. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
32. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Slope Easement
In favor of : City of Sunnyvale
Recorded : November 16, 1976 in Book C414, page 90, Official
Records
Affects : Westerly 5 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated December 2, 1999, prepared by
▇▇▇▇ & ▇▇▇▇▇▇, Job No. 97208-16.
33. EASEMENT recorded on that certain Map for the purposes stated herein and
incidents thereto
Purpose : Public utilities easement
Recorded : July 7, 1994 in Book 657 of Maps, page 9, Official
Records
Affects : Westerly 10 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated December 2, 1999, prepared by
▇▇▇▇ & ▇▇▇▇▇▇, Job No. 97208-16.
34. Covenants, Conditions and Restrictions in the Declaration of Protective
Covenants - ▇▇▇▇▇▇▇ Industrial Park No. 2) recorded December 23, 1971 in
Book 9640, page 443, Official Records; which provide that a violation
thereof shall not defeat or render invalid the lien of any Mortgage or
Deed of Trust made in good faith and for value. Said Covenants,
Conditions and Restrictions do not provide for reversion of title in the
event of a breach thereof. Restrictions, if any, based upon race, color,
religion, sex, handicap, familial status, or national origin are
deleted, unless and only to the extent that said covenant (a) is exempt
under Chapter 42, Section 3607, of the United States Code, or (b)
related to handicap but does not discriminate against handicapped
persons.
EXHIBIT B-2 - PAGE 8
38
ASSIGNMENT AND ASSUMPTION of the rights, powers, duties, obligations,
and reservations of ▇▇▇▇▇▇▇ Park Associates, in favor of The Prudential
Insurance Company of America, recorded February 8, 1977 in Book C583,
page 685, Official Records.
35. LIMITATIONS, covenants, restrictions, reservations, exceptions or terms,
but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained
in the document recorded February 5, 1980 in Book F122, page 460,
Official Records.
TRACT 5:
36. TAXES for the fiscal year 1999-2000, a lien not yet due or payable.
37. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
38. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Slope Easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 430, Official Records
Affects : The Northeasterly and Easterly 18 feet, as shown on a
survey plat entitled ALTA/ACSM Land Title Survey for:
Network Appliance, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated December
2, 1999, prepared by ▇▇▇▇ & ▇▇▇▇▇▇, Job No. 97208-16.
39. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 450, Official Records
Affects : The Northeasterly and Easterly 7 feet, as shown on a
survey plat entitled ALTA/ACSM Land Title Survey for:
Network Appliance, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated December
2, 1999, prepared by ▇▇▇▇ & ▇▇▇▇▇▇, Job No. 97208-16.
40. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Sidewalk and sign easement
Recorded : July 7, 1994, in Book 657 of Maps, page 9, Official
Records
Affects : The Northerly 2 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated December 2, 1999, prepared by
▇▇▇▇ & ▇▇▇▇▇▇, Job No. 97208-16.
41. LIMITATIONS, covenants, restrictions, reservations, exceptions or terms,
but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained
in the document recorded February 5, 1980 in Book F122, page 460,
Official Records.
EXHIBIT B-2 - PAGE 9
39
42. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities easement
Recorded : October 7, 1998, in Book 708 of Maps, pages 51-52,
Official Records
Affects : The Northerly 15 feet, as shown on a survey plat
entitled ALTA/ACSM Land Title Survey for: Network
Appliance, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated December 2, 1999,
prepared by ▇▇▇▇ & ▇▇▇▇▇▇, Job No. 97208-16.
EXHIBIT B-2 - PAGE 10
40
EXHIBIT B-3
GROUND LEASE
This GROUND LEASE (this "GROUND LEASE"), by and between BNP LEASING
CORPORATION, a Delaware corporation ("BNPLC"), whose address is ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and [NAI or the Applicable Purchaser], a
___________ ("LESSOR"), whose address is ____________________. as of
____________, ____ (the "GL EFFECTIVE DATE").
RECITALS
This Ground Lease is being executed pursuant to a Purchase Agreement
(Phase IV - Land) dated as of December ___, 1999 (the "PURCHASE AGREEMENT"),
between BNP Leasing Corporation and Network Appliance, Inc., covering the land
described in Annex 1 attached hereto (the "LAND"). Incorporated by reference
into the Purchase Agreement is a Common Definitions and Provisions Agreement
(Phase IV - Land) dated as of the effective date of the Purchase Agreement (the
"CDPA"), between BNP Leasing Corporation and Network Appliance, Inc. The CDPA is
hereby incorporated into and made a part of this Ground Lease for all purposes.
Capitalized terms defined in the CDPA and used but not otherwise defined herein
are intended in this Ground Lease to have the respective meanings ascribed to
them in the CDPA. The provisions in Article II of the CDPA are intended to apply
to this Ground Lease as if set forth herein and as if this Ground Lease were one
of the "Operative Documents" as defined therein.
Lessor and BNPLC have reached agreement as to the terms and conditions
upon which Lessor is willing to lease the Land described in Annex 1 to BNPLC for
a term of approximately just less that 35 years, and by this Ground Lease Lessor
and BNPLC desire to evidence such agreement.
GRANTING CLAUSES
NOW, THEREFORE, in consideration of the rent to be paid and the
covenants and agreements to be performed by BNPLC, as hereinafter set forth,
Lessor does hereby LEASE, DEMISE and LET unto BNPLC for the term hereinafter set
forth the Land, together with:
1. all easements and rights-of-way now owned or hereafter
acquired by Lessor for use in connection with the Land or
as a means of access thereto; and
2. all right, title and interest of Lessor, now owned or
hereafter acquired, in and to (A) any land lying within
the right-of-way of any street, open or proposed,
adjoining the Land, (B) any and all sidewalks and alleys
adjacent to the Land and (C) any strips and gores between
the Land and any abutting land not owned by Lessor.
The Land and all of the property described in the preceding clauses (1) and (2)
are hereinafter referred to collectively as the "REAL PROPERTY".
To the extent, but only to the extent, that assignable rights or interests in,
to or under the following have been or will be acquired by Lessor as the owner
of any interest in the Real Property, Lessor also hereby grants and
41
assigns to BNPLC for the term of this Ground Lease (and thereafter, if BNPLC
purchases the Real Property from Lessor pursuant to the Repurchase Option
described in Paragraph 12) the right to use and enjoy (and, in the case of
contract rights, to enforce) such rights or interests of Lessor:
(a) the Permitted Encumbrances; and
(b) any general intangibles, permits, licenses, franchises,
certificates, and other rights and privileges related to the Real
Property that BNPLC (rather than Lessor) would have acquired if BNPLC
had itself acquired the fee estate in the Real Property (excluding,
however, any rights and privileges of Lessor under this Ground Lease,
any rights or privileges of Lessor under the Purchase Agreement or other
Operative Documents, and [without limiting Lessor's obligations under
subparagraphs 4(B), 6(B) or 6(C)] any rights and privileges of Lessor
under the Development Documents described in Annex 3).
Such rights and interests of Lessor, whether now existing or hereafter arising,
are hereinafter collectively called the "GL PERSONAL PROPERTY". The Real
Property and the GL Personal Property are hereinafter sometimes collectively
called the "GL PROPERTY."
Provided, however, the leasehold estate conveyed hereby and BNPLC's
rights hereunder are expressly made subject and subordinate to the Permitted
Encumbrances, including those listed on Annex 2. FURTHER, IF AND SO LONG AS THE
OTHER LEASE AGREEMENT AND THE OTHER PURCHASE AGREEMENT (BOTH AS DEFINED IN THE
CDPA) REMAIN IN FORCE, THE RIGHTS AND OBLIGATIONS OF LESSOR AND BNPLC HEREUNDER
SHALL BE SUBJECT TO ANY CONTRARY PROVISIONS THEREIN. ACCORDINGLY, BNPLC'S RIGHTS
UNDER PARAGRAPH 7 BELOW SHALL BE SUBJECT TO THE PROVISIONS GOVERNING INSURANCE
AND CONDEMNATION IN THE OTHER LEASE AGREEMENT, IF AND SO LONG AS THE OTHER LEASE
AGREEMENT REMAINS IN FORCE.
GENERAL TERMS AND CONDITIONS
The GL Property is leased by Lessor to BNPLC and is accepted and is to
be used and possessed by BNPLC upon and subject to the following terms and
conditions:
10. GROUND LEASE TERM AND EARLY TERMINATION BY BNPLC. The term of this
Ground Lease (the "GROUND LEASE TERM") shall commence on and include the GL
Effective Date and end on last Business Day prior to the thirty-fifth
anniversary of the GL Effective Date. However, subject to the prior approval of
any Leasehold Mortgagee, BNPLC shall have the right to terminate this Ground
Lease by giving a notice to Lessor stating that BNPLC unequivocally elects to
terminate effective as of a date specified in such notice, which may be any date
more than thirty days after the notice and after the expiration or termination
of the Lease pursuant to its terms.
11. NO OTHER GROUND LEASE TERMINATION. Except as expressly provided
herein, this Ground Lease shall not terminate, nor shall Lessor have any right
to terminate this Ground Lease, nor shall the obligations of Lessor under this
Ground Lease be excused, for any reason whatsoever, including any of the
following: (i) any damage to or the destruction of all or any part of the GL
Property from whatever cause, (ii) the taking of the GL Property or any portion
thereof by eminent domain or otherwise for any reason, (iii) any default on the
part of BNPLC under this Ground Lease or under any other agreement to which
Lessor and BNPLC are parties, or (iv) 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 Lessor hereunder shall be separate and independent of the covenants and
agreements of BNPLC. However, nothing in this Paragraph shall be construed as a
waiver by Lessor of any right Lessor may have at law or in equity to recover
monetary damages for
EXHIBIT B-3 - PAGE 2
42
any default under this Ground Lease by BNPLC.
12. GROUND LEASE RENT. On each anniversary of the GL Effective Date,
BNPLC shall make a payment to Lessor of rent for the then preceding year
("GROUND LEASE RENT"), in currency that at the time of payment is legal tender
for public and private debts in the United States of America. Each such payment
of Ground Lease Rent shall equal the Fair Rental Value, determined as provided
in Annex 4.
13. USE OF GL PROPERTY.
(A) Permitted Uses and Construction of Improvements. Subject to
the Permitted Encumbrances and the terms hereof, BNPLC may use and occupy the GL
Property for any purpose permitted by Applicable Laws and may construct,
maintain and use any Improvements on the Land which are permitted by Applicable
Laws.
(B) Cooperation by Lessor and its Affiliates.
(1) After the expiration or any earlier termination of the Lease,
if a use of the GL Property by BNPLC or any new Improvements or any
removal or modification of Improvements proposed by BNPLC would violate
any Permitted Encumbrance, Development Document or Applicable Law unless
Lessor or any of its Affiliates, as an owner of adjacent property or
otherwise, gave its consent or approval thereto or agreed to join in a
modification of a Permitted Encumbrance or Development Document, then
Lessor shall give and cause its Affiliates to give such consent or
approval or join in such modification.
(2) To the extent, if any, that any Permitted Encumbrance,
Development Document or Applicable Law requires the consent or approval
of Lessor or any of its Affiliates or of the City of South San Francisco
or any other Person to an assignment of this Ground Lease or a transfer
of any interest in the GL Property by BNPLC or its successors or
assigns, Lessor will without charge give and cause its Affiliates to
give such consent or approval and will cooperate in any way reasonably
requested by BNPLC to assist BNPLC to obtain such consent or approval
from the City or any other Person; provided, however, the assignment or
transfer is not then prohibited by the Lease.
(3) Lessor's obligations under this subparagraph 4(B) shall be
binding upon any successor or assign of Lessor with respect to the Land
and other properties encumbered by the Permitted Encumbrances or subject
to the Development Documents, and such obligations shall survive any
sale of Lessor's interest in the GL Property to BNPLC because of BNPLC's
exercise of the Repurchase Option (as defined in Paragraph 12).
(C) Title to Improvements. Any and all Improvements of whatever
nature at any time constructed, placed or maintained upon any part of the Land
shall be and remain the property of BNPLC and BNPLC's sublessee's, assignees,
licensees and concessionaires, as their interests may appear; provided, any such
Improvements which remain on the Land when this Ground Lease expires or is
terminated shall become and thereupon be the property of Lessor, free and clear
of any Liens Removable by BNPLC. It is the intention of Lessor and BNPLC that
severance of fee title to the Land and the Improvements shall not change the
character of the Improvements as real property. BNPLC may at any time after
Lessor ceases to have possession of the GL Property as tenant under the Lease
and prior to the expiration or termination of this Ground Lease remove all or
any Improvements from the Land without the consent of Lessor and without any
obligation to Lessor or its Affiliates to provide compensation or to construct
other Improvements on or about the Land.
14. ASSIGNMENT AND SUBLETTING; PASS THROUGH OF BNPLC'S LIABILITY
INSURANCE AND INDEMNITY RIGHTS. BNPLC may sublet or assign this Ground Lease
without the consent of Lessor or any of its
EXHIBIT B-3 - PAGE 3
43
Affiliates, subject only to limitations set forth in the Lease for the benefit
of Lessor so long as those limitations remain in force.
To the extent that BNPLC may from time to time after the expiration or
earlier termination of the Other Lease Agreement require any subtenant to agree
to maintain liability insurance against claims of third parties and agree to
make BNPLC an additional or named insured under such insurance, BNPLC shall also
require the subtenant to agree to make Lessor an additional or named insured.
However, BNPLC shall have no liability to Lessor for a breach by the subtenant
of any such agreements, and to the extent that BNPLC's rights as an additional
or named insured are subject to exceptions or limitations concerning BNPLC's own
acts or omissions or the acts or omissions of anyone other than the subtenant,
so too may Lessor's rights as an additional or named insured be subject to
exceptions or limitations concerning Lessor's own acts or omissions or the acts
or omissions of anyone other than the subtenant.
To the extent that BNPLC may itself from time to time after the
expiration or earlier termination of the Other Lease Agreement maintain
liability insurance against claims of third parties which may arise because of
any occurrence on or alleged to have occurred on or about the GL Property, BNPLC
shall cause Lessor to be an additional or named insured under such insurance,
provided Lessor pays or reimburses BNPLC for any additional insurance premium
required to have Lessor made an insured.
To the extent that BNPLC may from time to time after the expiration or
earlier termination of the Other Lease Agreement require any subtenant to agree
to indemnify BNPLC against Environmental Losses or other Losses concerning the
GL Property, BNPLC shall also require the subtenant to agree to indemnify
Lessor. However, BNPLC shall have no liability to Lessor for a breach by the
subtenant of any such agreement, and to the extent that BNPLC's rights as an
indemnitee of the subtenant are subject to exceptions or limitations concerning
BNPLC's own acts or omissions or the acts or omissions of anyone other than the
subtenant, so too may Lessor's rights as an indemnitee be subject to exceptions
or limitations concerning Lessor's own acts or omissions or the acts or
omissions of anyone other than the subtenant.
15. REPRESENTATIONS, WARRANTIES AND COVENANTS OF LESSOR CONCERNING THE
PROPERTY. Lessor represents, warrants and covenants as follows:
(A) Title to the Property. This Ground Lease shall vest in BNPLC
good and marketable title to a leasehold estate in the Land, subject only to the
terms and conditions hereof, the Permitted Encumbrances, the Development
Documents and any Liens Removable by BNPLC. Lessor shall not, without the prior
consent of BNPLC, create, place or authorize, or through any act or failure to
act, acquiesce in the placing of, any deed of trust, mortgage or other Lien,
whether statutory, constitutional or contractual against or covering the GL
Property or any part thereof (other than Permitted Encumbrances and Liens
Removable by BNPLC), regardless of whether the same are expressly or otherwise
subordinate to the Operative Documents or BNPLC's interest in the Property.
(B) Modification of Permitted Encumbrances and Development
Documents. Without the prior consent of BNPLC, Lessor shall not enter into,
initiate, approve or consent to any modification of any Permitted Encumbrance or
Development Document that would create or expand or purport to create or expand
obligations or restrictions which would encumber the GL Property or any
improvements constructed thereon.
(C) Performance and Preservation of the Development Documents and
Permitted Encumbrances for the Benefit of BNPLC. Not only during the term of the
Other Lease Agreement, but thereafter throughout the term of this Ground Lease,
Lessor shall comply with and perform the obligations imposed by the Permitted
Encumbrances and the Development Documents upon Lessor or upon any owner of the
Land, and shall do whatever is required to preserve the rights and benefits
conferred or intended to be conferred by the Permitted Encumbrances and the
Development Documents, as necessary to facilitate the construction of the
Construction
EXHIBIT B-3 - PAGE 4
44
Project on the Land as contemplated in the Other Lease Agreement and the use of
the Improvements included in the Construction Project by BNPLC and its
successors, assigns and subtenants under this Ground Lease after the expiration
or any earlier termination of the Other Lease Agreement. Further, if Lessor or
any Affiliate of Lessor now or hereafter owns, acquires or leases land (other
than the Land) that is the subject of a Permitted Encumbrance or Development
Document, then Lessor shall, and shall cause its Affiliate to, assume liability
for and indemnify BNPLC and other Interested Parties and defend and hold them
harmless from and against all Losses (including Losses caused by any decline in
the value of the Property or of the Improvements) that they would not have
incurred or suffered but for (i) a termination of such Permitted Encumbrance or
Development Document, to which Lessor or its Affiliate agreed, or which resulted
from a breach thereof by Lessor or its Affiliate, or (ii) a refusal of Lessor or
its Affiliate to agree to any waiver or modification requested by BNPLC of
restrictions upon the Property or the transfer thereof imposed by such Permitted
Encumbrance or Development Document, or (iii) anything done, authorized or
suffered by Lessor or its Affiliate in violation of such Permitted Encumbrance
or Development Document. Lessor's obligations under this subparagraph 6(C) shall
be binding upon any successor or assign of Lessor or its Affiliates with respect
to their interest in properties subject to the Development Documents and
Permitted Encumbrances.
16. INSURANCE AND CONDEMNATION.
(A) Entitlement to Insurance and Condemnation Proceeds. All
insurance and condemnation proceeds payable with respect to any damage to or
taking of the GL Property shall be payable to and become the property of BNPLC;
provided, however, Lessor shall be entitled to receive condemnation proceeds
awarded for the value of Lessor's remainder interest in the Land exclusive of
the Improvements. BNPLC is authorized to take all action necessary on behalf of
both BNPLC and Lessor (as lessor under this Ground Lease) to collect insurance
and condemnation proceeds.
(B) Collection of Insurance Proceeds. In the event any of the GL
Property is destroyed or damaged by fire, explosion, windstorm, hail or by any
other casualty against which insurance shall have been required hereunder, (i)
BNPLC may make proof of loss, (ii) each insurance company concerned is hereby
authorized and directed to make payment for such loss directly to BNPLC for
application as required by subparagraph 7(A), and (iii) BNPLC's consent must be
obtained for any settlement, adjustment or compromise of any claims for loss,
damage or destruction under any policy or policies of insurance.
(C) Collection of Condemnation Proceeds. All proceeds of
condemnation awards or proceeds of sale in lieu of condemnation with respect to
the GL Property and all judgments, decrees and awards for injury or damage to
the GL Property shall be paid to BNPLC and applied as provided in subparagraph
7(A) above. BNPLC is hereby authorized, in the name of Lessor, to execute and
deliver valid acquittances for, and to appeal from, any such judgment, decree or
award concerning condemnation of any of the GL Property. BNPLC shall not be, in
any event or circumstances, liable or responsible for failure to collect, or to
exercise diligence in the collection of, any such proceeds, judgments, decrees
or awards.
17. LEASEHOLD MORTGAGES.
(A) By Leasehold Mortgage BNPLC may encumber BNPLC's leasehold
estate in the GL Property created by this Ground Lease, as well as BNPLC's
rights and interests in buildings, fixtures, equipment and Improvements situated
on the Land and rents, issues, profits, revenues and other income to be derived
by BNPLC therefrom.
(B) Any Leasehold Mortgagee or other party, including any
corporation formed by a Leasehold Mortgagee, may become the legal owner of the
leasehold estate created by this Ground Lease, and of the Improvements,
equipment, fixtures and other property assigned as additional security pursuant
to a Leasehold
EXHIBIT B-3 - PAGE 5
45
Mortgage, by foreclosure of a Leasehold Mortgage or as a result of the
assignment or conveyance in lieu of foreclosure. Further, any such Leasehold
Mortgagee or other party may itself, after becoming the legal owner and holder
of the leasehold estate created by this Ground Lease, or of any Improvements,
equipment, fixtures and other property assigned as additional security pursuant
to a Leasehold Mortgage, convey or pledge the same without the consent of
Lessor.
(C) Lessor shall serve notice of any default by BNPLC hereunder
upon any Leasehold Mortgagee. No notice of a default by BNPLC shall be deemed
effective until it is so served. Any Leasehold Mortgagee shall have the right to
correct or cure any such default within the same period of time after receipt of
such notice as is given to BNPLC under this Ground Lease to correct or cure
defaults, plus an additional period of thirty days thereafter. Lessor will
accept performance by any Leasehold Mortgagee of any covenant, condition or
agreement on BNPLC's part to be performed hereunder with the same force and
effect as though performed by BNPLC.
(D) If this Ground Lease should terminate by reason of a
disaffirmance or rejection of this Ground Lease by BNPLC or any receiver,
liquidator or trustee for the property of BNPLC, or by any governmental
authority which had taken possession of the business or property of BNPLC by
reason of the insolvency or alleged insolvency of BNPLC, then:
(1) Lessor shall give notice thereof to each Leasehold Mortgagee;
and upon request of any Leasehold Mortgagee made within sixty days after
Lessor has given such notice, Lessor shall enter into a new ground lease
of the GL Property with such Leasehold Mortgagee for the remainder of
the Ground Lease Term, at the same Ground Lease Rent and on the same
terms and conditions as contained in this Ground Lease.
(2) The estate of the Leasehold Mortgagee, as lessee under the
new lease, shall have priority equal to the estate of BNPLC hereunder.
That is, there shall be no charge, lien or burden upon the GL Property
prior to or superior to the estate granted by such new lease which was
not prior to or superior to the estate of BNPLC under this Ground Lease
as of the date immediately preceding the termination of this Ground
Lease.
(3) Notwithstanding the foregoing, if Lessor shall receive
requests to enter into a new ground lease from more than one Leasehold
Mortgagee, Lessor shall be required to enter into only one new ground
lease, and the new ground lease shall be to the requesting Leasehold
Mortgagee who holds the highest priority lien or interest in BNPLC's
leasehold estate in the Land. If the liens or security interests of two
or more such requesting Leasehold Mortgagees which shared the highest
priority just prior to the termination of this Ground Lease, the new
ground lease shall name all such Leasehold Mortgagees as co-tenants
thereunder.
(E) If BNPLC has agreed with any Leasehold Mortgagee that such
Leasehold Mortgagee's consent will be required to any modification or early
termination of this Ground Lease by BNPLC, and if Lessor has been notified of
such agreement, such consent will be required.
(F) No Leasehold Mortgagee will assume any liability under this
Ground Lease either by virtue of its Leasehold Mortgage or by any subsequent
receipt or collection of rents or profits generated from the GL Property, unless
and until the Leasehold Mortgagee acquires BNPLC's leasehold estate in the GL
Property at foreclosure or by deed in lieu of foreclosure.
(G) Although the foregoing provisions concerning Leasehold
Mortgages and Leasehold Mortgagees will be self operative, Lessor agrees to
include, in addition to the items specified in ▇▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇ ▇-▇ - PAGE 6
46
confirmation of the foregoing in any statement provided to a
Leasehold Mortgagee or prospective Leasehold Mortgagee pursuant to Paragraph 11.
18. EVENTS OF DEFAULT.
(A) Definition of Ground Lease Default. Each of the following
events shall be deemed to be a "GROUND LEASE DEFAULT" by BNPLC under this Ground
Lease:
(1) BNPLC shall fail to pay when due any installment of Ground
Lease Rent due hereunder and such failure shall continue for sixty days
after BNPLC receives notice thereof.
(2) BNPLC shall fail to comply with any term, provision or
covenant of this Ground Lease (other than as described in the other
clauses of this subparagraph 9(A)), and shall not cure such failure
prior to the earlier of (A) ninety days after notice thereof is sent to
BNPLC, or (B) the date any writ or order is issued for the levy or sale
of any property owned by Lessor or its Affiliates (including the GL
Property) because of such failure or any criminal action is instituted
against BNPLC or any of its directors, officers or employees because of
such failure; provided, however, that so long as no such writ or order
is issued and no such criminal actions is instituted, if such failure is
susceptible of cure but cannot with reasonable diligence be cured within
such ninety day period, and if BNPLC shall promptly have commenced to
cure the same and shall thereafter prosecute the curing thereof with
reasonable diligence, the period within which such failure may be cured
shall be extended for such further period as shall be necessary for the
curing thereof with reasonable diligence.
(B) Remedy. Upon the occurrence of a Ground Lease Default which
is not cured within any applicable period expressly permitted by subparagraph
9(A), Lessor's sole and exclusive remedies shall be to ▇▇▇ BNPLC for the
collection of any amount due under this Ground Lease, to ▇▇▇ for the specific
enforcement of BNPLC's obligations hereunder, or to enjoin the continuation of
the Ground Lease Default; provided, however, no limitation of Lessor's remedies
contained herein will prevent Lessor from recovering any reasonable costs Lessor
may incur to mitigate its damages by curing a Ground Lease Default that BNPLC
has failed to cure itself (so long as the cure by Lessor is pursued in a lawful
manner and the costs Lessor seeks to recover do not exceed the actual damages to
be mitigated). Lessor may not terminate this Ground Lease or BNPLC's right to
possession under this Ground Lease. Any judgment which Lessor may obtain against
BNPLC for amounts due under this Ground Lease may be collected only through
resort of a judgement lien against BNPLC's interest in the GL Property and any
Improvements. BNPLC shall have no personal liability for the payment amounts due
under this or for the performance of any obligations of BNPLC under this Ground
Lease.
19. QUIET ENJOYMENT. Neither Lessor nor any third party lawfully
claiming any right or interest in the GL Property shall during the Ground Lease
Term disturb BNPLC's peaceable and quiet enjoyment of the GL Property; however,
such enjoyment shall be subject to the terms, provisions, covenants, agreements
and conditions of this Ground Lease and the Permitted Encumbrances, to which
this Ground Lease is subject and subordinate as herein above set forth.
20. ESTOPPEL CERTIFICATE. Lessor shall from time to time, within ten
days after receipt of request by BNPLC, deliver a statement in writing
certifying:
(A) that this Ground Lease is unmodified and in full force and
effect (or if modified that this Ground Lease as so modified is in full force
and effect);
(B) that to the knowledge of Lessor BNPLC has not previously
assigned or hypothecated its rights or interests under this Ground Lease, except
as is described in such statement with as much specificity as
EXHIBIT B-3 - PAGE 7
47
Lessor is able to provide;
(C) the term of this Ground Lease and the Ground Lease Rent then
in effect and any additional charges;
(D) that BNPLC is not in default under any provision of this
Ground Lease (or if in default, the nature thereof in detail) and a statement as
to any outstanding obligations on the part of Lessor or BNPLC; and
(E) such other matters as are reasonably requested by BNPLC.
Lessor's failure to deliver such statement within such time shall be conclusive
upon BNPLC (i) that this Ground Lease is in full force and effect, without
modification except as may be represented by BNPLC, (ii) that there are no
uncured defaults in BNPLC's performance hereunder.
21. OPTION TO REPURCHASE. Subject to the terms and conditions set forth
in Annex 5, BNPLC (and any assignee of BNPLC's entire interest in the GL
Property, but not any subtenant or assignee of a lesser interest) shall have the
option (the "REPURCHASE OPTION") to purchase Lessor's interest in the GL
Property. To secure BNPLC's right to recover any damages caused by a breach of
the Repurchase Option or other provisions of this Ground Lease by Lessor,
including any such breach caused by a rejection or termination of this Ground
Lease in any bankruptcy or insolvency proceeding instituted by or against
Lessor, as debtor, Lessor does hereby grant to BNPLC a lien and security
interest against the Land and against all rights, title and interests of Lessor
from time to time in and to the GL Property.
[The signature pages follow.]
EXHIBIT B-3 - PAGE 8
48
IN WITNESS WHEREOF, this Ground Lease is hereby executed in multiple
originals as of the date first written above.
"Lessor"
[NAI or the Applicable Purchaser]
By:
-------------------------------------
Name:
----------------------------
Title:
----------------------------
EXHIBIT B-3 - PAGE 9
49
[Continuation of signature pages to GROUND LEASE dated as of ___________, ____]
"BNPLC"
BNP LEASING CORPORATION
By:
-------------------------------------
Name:
----------------------------
Title:
----------------------------
EXHIBIT B-3 - PAGE 10
50
STATE OF ___________ )
) SS
COUNTY OF _____________ )
On _____________, _____, before me, ________________________, personally
appeared ____________________________, personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person whose name is subscribed
to the within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the person, or
the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature
-----------------------------------
EXHIBIT B-3 - PAGE 11
51
STATE OF ________ )
)
COUNTY OF __________ )
On ___________, _____, before me, ________________________, personally
appeared ____________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature
-----------------------------------
EXHIBIT B-3 - PAGE 12
52
ANNEX 1
LEGAL DESCRIPTION
[DRAFTING NOTE: TO THE EXTENT THAT THE "LAND" COVERED BY THE LAND LEASE CHANGES
FROM TIME TO TIME BECAUSE OF ADJUSTMENTS FOR WHICH NAI REQUESTS BNPLC'S CONSENT
OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY SUCH
CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING NOTE"
WILL BE DELETED BEFORE THE DEED TO WHICH THIS DESCRIPTION IS ATTACHED IS
ACTUALLY EXECUTED AND DELIVERED.]
All that certain real property situate in the City of Sunnyvale, State of
California, described as follows:
TRACT 1:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map lying
within the City of Sunnyvale, being a resubdivision of a portion of Parcel B, as
shown upon that certain Parcel Map recorded in Book 345 of Maps, at page 20,
Santa ▇▇▇▇▇ County Records", which Map was filed for record in the Office of the
Recorder of the County of Santa ▇▇▇▇▇, State of California, on November 17,
1976, in Book 383 of Maps, at page 35.
TRACT 2:
Together with an easement for vehicles parking over the following described
property:
A 7-foot strip of land for parking easement purposes over a portion of Parcel A,
as said Parcel A is shown on that certain Parcel Map filed for record on
November 10, 1974 in Book 292 of Maps, at page 41, records of said County, and
being more particularly described as follows:
Commencing at the Northeast corner of said Parcel A; thence North
75[degrees]8'27" West 500.00 feet along the Northeasterly line of said Parcel A;
thence South 14[degrees]51'33" West 7.00 feet; thence parallel to Northeasterly
line of said Parcel A, South 75[degrees]08'27" East 500.00 feet to the Southeast
line of said Parcel A, North 14[degrees]51'33" East 7.00 feet to the point of
beginning.
APN: ▇▇▇-▇▇-▇▇▇
ARB: 110-3-65.02
TRACT 3:
Parcel 1, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of Santa ▇▇▇▇▇, State of California on July
7, 1994, in Book 657 of Parcel Maps, Page 9.
APN: 110-32-6
ARB: 110-3-x65
TRACT 4:
EXHIBIT B-3 - PAGE 13
53
Parcel 2, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of Santa ▇▇▇▇▇, State of California on July
7, 1994, in Book 657 of Parcel Maps, Page 9.
APN: 110-32-7
ARB: 110-3-x65
TRACT 5:
Parcel 2, as shown on that certain parcel Map which filed for record in the
office of the recorder of the County of Santa ▇▇▇▇▇, State of California on
October 7, 1998, in Book 708 of Parcel Maps, Pages 51 and 52.
APN: ▇▇▇-▇▇-▇▇
ARB: 110-03-65.11
EXHIBIT B-3 - PAGE 14
54
ANNEX 2
PERMITTED ENCUMBRANCES
The leasehold and other interests in the Land hereby conveyed by Lessor are
conveyed subject to the following matters to the extent the same are still valid
and in force:
[THE SAME LIST OF PERMITTED ENCUMBRANCES ATTACHED TO THE GRANT DEED FROM BNPLC
TO NAI OR THE APPLICABLE PURCHASER SHALL BE INSERTED HERE.]
EXHIBIT B-3 - PAGE 15
55
ANNEX 3
LIST OF DEVELOPMENT DOCUMENTS
NONE
EXHIBIT B-3 - PAGE 16
56
ANNEX 4
DETERMINATION OF FAIR RENTAL VALUE
Each annual payment of Ground Lease Rent will equal the Fair Rental
Value, computed as of the most recent Rental Determination Date when such
payment becomes due. As used in this Annex:
"FAIR RENTAL VALUE" means (and all appraisers and other persons
involved in the determination of the Fair Rental Value will be so
advised) the annual rent, as determined in accordance with this Annex,
that would be agreed upon between a willing tenant, under no compulsion
to lease, and a willing landlord, under no compulsion to lease, for
unimproved land comparable in size and location to the Land, exclusive
of any Improvements but assuming that there is no higher and better use
for such land than as a site for improvements of comparable size and
utility to the Improvements, at the time a determination is required
under hereunder and taking into consideration the condition of the Land,
the encumbrances affecting the title to the Land and all applicable
zoning, land use approvals and other governmental permits relating to
the Land at the time of such determination; and
"RENTAL DETERMINATION DATE" means the GL Effective Date and each
fifth anniversary of the GL Effective Date.
If Lessor and BNPLC have not agreed upon Fair Rental Value as of any
Rental Determination Date within one hundred eighty days after the such date,
then Fair Rental Value will be determined as follows:
(a) Lessor and BNPLC shall each appoint a real estate appraiser
who is familiar with rental values for properties in the vicinity of the
Land and who has not previously acted for either party. Each party will
make the appointment no later than ten days after receipt of notice from
the other party that the appraisal process described in this Annex has
been invoked. The agreement of the two appraisers as to Fair Rental
Value will be binding upon Lessor and BNPLC. If the two appraisers
cannot agree upon the Fair Rental Value within ten days following their
appointment, they shall within another ten days agree upon a third real
estate appraiser. Immediately thereafter, each of the first two
appraisers will submit his best estimate of the appropriate Fair Rental
Value (together with a written report supporting such estimate) to the
third appraiser and the third appraiser will choose between the two
estimates. The estimate of Fair Rental Value chosen by the third
appraiser as the closest to the prevailing annual fair rental value will
be binding upon Lessor and BNPLC. Notification in writing of this
estimate shall be made to Lessor and BNPLC within fifteen days following
the selection of the third appraiser.
(b) If appraisers must be selected under the procedure set out
above and either BNPLC or Lessor fails to appoint an appraiser or fails
to notify the other party of such appointment within fifteen days after
receipt of notice that the prescribed time for appointing the appraisers
has passed, then the other party's appraiser will determine the Fair
Rental Value. All appraisers selected for the appraisal process set out
in this Annex will be disinterested, reputable, qualified real estate
appraisers with the designation of MAI or equivalent and with at least 5
years experience in appraising properties comparable to the Land.
(c) If a third appraiser must be chosen under the procedure set
out above, he or she will be chosen on the basis of objectivity and
competence, not on the basis of his relationship with the other
appraisers or the parties to this Ground Lease, and the first two
appraisers will be so advised. Although the first two appraisers will be
instructed to attempt in good faith to agree upon the third appraiser,
if for any reason they cannot agree within the prescribed time, either
Lessor and BNPLC may require the first two appraisers to immediately
submit its top choice for the third appraiser to the then highest
ranking officer of the California Bar Association who will agree to help
and who has no attorney/client or other significant
EXHIBIT B-3 - PAGE 17
57
relationship to either Lessor or BNPLC. Such officer will have complete
discretion to select the most objective and competent third appraiser
from between the choices of each of the first two appraisers, and will
do so within twenty days after such choices are submitted to him.
(d) Either Lessor or BNPLC may notify the appraiser selected by
the other party to demand the submission of an estimate of Fair Rental
Value or a choice of a third appraiser as required under the procedure
described above; and if the submission of such an estimate or choice is
required but the other party's appraiser fails to comply with the demand
within fifteen days after receipt of such notice, then the Fair Rental
Value or choice of the third appraiser, as the case may be, selected by
the other appraiser (i.e., the notifying party's appraiser) will be
binding upon Lessor and BNPLC.
(e) Lessor and BNPLC shall each bear the expense of the appraiser
appointed by it, and the expense of the third appraiser and of any
officer of the California Bar Association who participates in the
appraisal process described above will be shared equally by Lessor and
BNPLC.
EXHIBIT ▇-▇ - ▇▇▇▇ ▇▇
▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇ OPTION
Subject to the terms of this Annex, BNPLC shall have an option (the
"OPTION") to buy Lessor's fee interest in the GL Property at any time during the
term of this Ground Lease for a purchase price (the "OPTION PRICE") to Lessor
equal to the fair market value of the GL Property, determined as described in
the next paragraph.
For the purposes of this Annex, "fair market value" of the GL Property
means (and all appraisers and other persons involved in the determination of the
Option Price will be so advised) the price that would be agreed upon between a
willing buyer, under no compulsion to buy, and a willing seller, under no
compulsion to sell, for the Land, exclusive of any Improvements as if the Land
were unimproved, but assuming that there is no higher and better use for the
Land than as a site for the construction of improvements of comparable size and
utility to the Improvements, at the time of BNPLC's exercise of the Option and
taking into consideration the encumbrances affecting the title to the Land and
all applicable zoning, land use approvals and other governmental permits
relating to the Land at the time of the exercise of the Option.
If BNPLC exercises the Option, which BNPLC may do by notifying Lessor
that BNPLC has elected to buy Lessor's interest in the GL Property as provided
herein, then:
(a) To the extent, if any, required as a condition imposed by law
to the conveyance of the fee interest in the GL Property to BNPLC,
Lessor shall promptly at its expense do whatever is necessary to obtain
approvals of a new Parcel Map or lot line adjustments.
(b) Upon BNPLC's tender of the Option Price to Lessor, Lessor
will convey to BNPLC by general warranty deed and assignment, subject
only to the Permitted Encumbrances, good and marketable title to the fee
estate in the Land , to Lessor's interest in all other GL Property and,
to the extent still in force, to Lessor's Extended Remarketing Rights
under the Purchase Agreement.
(c) BNPLC's obligation to close the purchase shall be subject to
the following terms and conditions, all of which are for the benefit of
BNPLC: (1) BNPLC shall have been furnished with evidence satisfactory to
BNPLC that Lessor can convey title as required by the preceding
subparagraph; (2) nothing shall have occurred or been discovered after
BNPLC exercised the Option that could significantly and adversely affect
title to the GL Property or BNPLC's use thereof, (3) all of the
representations of Lessor in this Ground Lease shall continue to be true
as if made effective on the date of the closing and, with respect to any
such representations which may be limited to the knowledge of Lessor or
any of Lessor's representatives, would continue to be true on the date
of the closing if all relevant facts and circumstances were known to
Lessor and such representatives, (4) BNPLC shall find the Option Price
acceptable after it is determined as provided in this Annex, and (5)
BNPLC shall have been tendered the deed and other documents which are
described in this Annex as documents to be delivered to BNPLC at the
closing of BNPLC's purchase.
(d) Closing of the purchase will be scheduled on the first
Business Day following thirty days after the Option Price is established
in accordance with the terms and conditions of this Annex and after any
approvals described in subparagraph (a) above are obtained, and prior to
closing BNPLC's occupancy of the GL Property shall continue to be
subject to the terms and conditions of this Ground Lease, including the
terms setting forth BNPLC's obligation to pay rent. Closing shall take
place at the offices of any title insurance company reasonably selected
by BNPLC to insure title under the title insurance policy described
below.
EXHIBIT B-3 - PAGE 19
59
(e) Any transfer taxes or notices or registrations required by
law in connection with the sale contemplated by this Annex will be the
responsibility of Lessor.
(f) Lessor will deliver a certificate of nonforeign status to
BNPLC at closing as needed to comply with the provisions of the Foreign
Investors Real Property Tax Act (FIRPTA) or any comparable federal,
state or local law in effect at the time.
(g) Lessor will also pay for and deliver to BNPLC at the closing
an owner's title insurance policy in the full amount of the Option
Price, issued by a title insurance company designated by BNPLC (or
written confirmation from the title company that it is then prepared to
issue such a policy), and subject only to standard printed exceptions
which the title insurance company refuses to delete or modify in a
manner acceptable to BNPLC and to Permitted Encumbrances.
(h) Lessor shall also deliver at the closing all other documents
or things reasonably required to be delivered to BNPLC or by the title
insurance company to evidence Lessor's ability to transfer the GL
Property to BNPLC.
If Lessor and BNPLC do not otherwise agree upon the amount of the Option
Price within twenty days after BNPLC exercises the Option, the Option Price
shall be determined in accordance with the following procedure:
(1) Lessor and BNPLC shall each appoint a real estate
appraiser who is familiar with properties in the vicinity of the
Land and who has not previously acted for either party. Each
party will make the appointment no later than ten days after
receipt of notice from the other party that the appraisal process
described in this Annex has been invoked. The agreement of the
two appraisers as to the Option Price will be binding upon Lessor
and BNPLC. If the two appraisers cannot agree upon the Option
Price within ten days following their appointment, they shall
within another ten days agree upon a third real estate appraiser.
Immediately thereafter, each of the first two appraisers will
submit his best estimate of the appropriate Option Price
(together with a written report supporting such estimate) to the
third appraiser and the third appraiser will choose between the
two estimates. The estimate of Option Price chosen by the third
appraiser as the closest to the prevailing fair market value will
be binding upon Lessor and BNPLC. Notification in writing of the
Option Price shall be made to Lessor and BNPLC within fifteen
days following the selection of the third appraiser.
(2) If appraisers must be selected under the procedure set
out above and either BNPLC or Lessor fails to appoint an
appraiser or fails to notify the other party of such appointment
within fifteen days after receipt of notice that the prescribed
time for appointing the appraisers has passed, then the other
party's appraiser will determine the Option Price. All appraisers
selected for the appraisal process set out in this Annex will be
disinterested, reputable, qualified real estate appraisers with
the designation of MAI or equivalent and with at least 5 years
experience in appraising properties comparable to the Land.
(3) If a third appraiser must be chosen under the
procedure set out above, he will be chosen on the basis of
objectivity and competence, not on the basis of his relationship
with the other appraisers or the parties to this Ground Lease,
and the first two appraisers will be so advised. Although the
first two appraisers will be instructed to attempt in good faith
to agree upon the third appraiser, if for any reason they cannot
agree within the prescribed time, either Lessor and BNPLC may
require the first two appraisers to immediately submit its top
choice for the third appraiser to the then highest ranking
officer of the California Bar Association who will agree to help
and who has no attorney/client or other significant relationship
to either Lessor or BNPLC. Such officer
EXHIBIT B-3 - PAGE 20
60
will have complete discretion to select the most objective and
competent third appraiser from between the choices of each of the
first two appraisers, and will do so within ten days after such
choices are submitted to him.
(4) Either Lessor or BNPLC may notify the appraiser
selected by the other party to demand the submission of an
estimate of Option Price or a choice of a third appraiser as
required under the procedure described above; and if the
submission of such an estimate or choice is required but the
other party's appraiser fails to comply with the demand within
fifteen days after receipt of such notice, then the Option Price
or choice of the third appraiser, as the case may be, selected by
the other appraiser (i.e., the notifying party's appraiser) will
be binding upon Lessor and BNPLC.
(5) Lessor and BNPLC shall each bear the expense of the
appraiser appointed by it, and the expense of the third appraiser
and of any officer of the California Bar Association who
participates in the appraisal process described above will be
shared equally by Lessor and BNPLC.
EXHIBIT B-3 - PAGE 21
61
EXHIBIT C
▇▇▇▇ OF SALE AND ASSIGNMENT
Reference is made to: (1) that certain Purchase Agreement (Phase IV -
Land) between BNP Leasing Corporation ("ASSIGNOR") and Network Appliance, Inc.,
dated as of December ___, 1999, (the "PURCHASE AGREEMENT") and (2) that certain
Lease Agreement (Phase IV - Land) between Assignor, as landlord, and Network
Appliance, Inc., as tenant, dated as of December ___, 1999 (the "LAND LEASE").
(Capitalized terms used and not otherwise defined in this document are intended
to have the meanings assigned to them in the Common Definitions and Provisions
Agreement (Phase IV - Land) incorporated by reference into both the Purchase
Agreement and Land Lease.)
As contemplated by the Purchase Agreement, Assignor hereby sells,
transfers and assigns unto [NAI OR THE APPLICABLE PURCHASER, AS THE CASE MAY
BE], a _____________ ("ASSIGNEE"), all of Assignor's right, title and interest
in and to the following property, if any, to the extent such property is
assignable:
(a) the Land 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.
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 Land 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 Land Lease
which may not presently be known, (2) provisions in the Land Lease that
establish the right of Assignor to recover any accrued unpaid rent under the
Land 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 Land 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 Land 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.
62
Assignee hereby assumes and agrees to keep, perform and fulfill
Assignor's obligations, if any, relating to any permits or contracts, under
which Assignor has rights being assigned herein.
IN WITNESS WHEREOF, the parties have executed this instrument as of
_______________, _____.
ASSIGNOR:
BNP LEASING CORPORATION a Delaware
corporation
By:
-------------------------------------
Its:
-----------------------------------
ASSIGNEE:
[NAI or the Applicable Purchaser],
a
--------------------
By:
-------------------------------------
Its:
-----------------------------------
EXHIBIT C - PAGE 2
63
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
64
ANNEX A
LEGAL DESCRIPTION
[DRAFTING NOTE: TO THE EXTENT THAT THE "LAND" COVERED BY THE LAND LEASE CHANGES
FROM TIME TO TIME BECAUSE OF ADJUSTMENTS FOR WHICH NAI REQUESTS BNPLC'S CONSENT
OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY SUCH
CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING NOTE"
WILL BE DELETED BEFORE THE DOCUMENT TO WHICH THIS DESCRIPTION IS ATTACHED IS
ACTUALLY EXECUTED AND DELIVERED.]
The real property located in the City of Sunnyvale, County of Santa ▇▇▇▇▇, State
of California, described as follows:
TRACT 1:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map lying
within the City of Sunnyvale, being a resubdivision of a portion of Parcel B, as
shown upon that certain Parcel Map recorded in Book 345 of Maps, at page 20,
Santa ▇▇▇▇▇ County Records", which Map was filed for record in the Office of the
Recorder of the County of Santa ▇▇▇▇▇, State of California, on November 17,
1976, in Book 383 of Maps, at page 35.
TRACT 2:
Together with an easement for vehicles parking over the following described
property:
A 7-foot strip of land for parking easement purposes over a portion of Parcel A,
as said Parcel A is shown on that certain Parcel Map filed for record on
November 10, 1974 in Book 292 of Maps, at page 41, records of said County, and
being more particularly described as follows:
Commencing at the Northeast corner of said Parcel A; thence North 75~8'27" West
500.00 feet along the Northeasterly line of said Parcel A; thence South
14~51'33" West 7.00 feet; thence parallel to Northeasterly line of said Parcel
A, South 75~08'27" East 500.00 feet to the Southeast line of said Parcel A,
North 14~51'33" East 7.00 feet to the point of beginning.
APN: ▇▇▇-▇▇-▇▇▇
ARB: 110-3-65.02
TRACT 3:
Parcel 1, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of Santa ▇▇▇▇▇, State of California on July
7, 1994, in Book 657 of Parcel Maps, Page 9.
APN: 110-32-6
ARB: 110-3-x65
TRACT 4:
Parcel 2, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of
EXHIBIT C - PAGE 4
65
Santa ▇▇▇▇▇, State of California on July 7, 1994, in Book 657 of Parcel Maps,
Page 9.
APN: 110-32-7
ARB: 110-3-x65
TRACT 5:
Parcel 2, as shown on that certain parcel Map which filed for record in the
office of the recorder of the County of Santa ▇▇▇▇▇, State of California on
October 7, 1998, in Book 708 of Parcel Maps, Pages 51 and 52.
APN: ▇▇▇-▇▇-▇▇
ARB: 110-03-65.11
EXHIBIT C - PAGE 5
66
EXHIBIT D
ACKNOWLEDGMENT OF DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
THIS ACKNOWLEDGMENT OF DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
(this "Certificate") is made as of ___________________, ____, by [NAI or the
Applicable Purchaser, as the case may be], a ___________________ ("GRANTEE").
Contemporaneously with the execution of this Certificate, BNP Leasing
Corporation, a Delaware corporation ("BNPLC"), is executing and delivering to
Grantee (1) a corporate grant deed and (2) a ▇▇▇▇ of Sale and Assignment (the
foregoing documents and any other documents to be executed in connection
therewith are herein called the "CONVEYANCING DOCUMENTS" and any of the
properties, rights or other matters assigned, transferred or conveyed pursuant
thereto are herein collectively called the "SUBJECT PROPERTY").
NOTWITHSTANDING ANY PROVISION CONTAINED IN THE CONVEYANCING DOCUMENTS TO
THE CONTRARY, GRANTEE ACKNOWLEDGES THAT BNPLC MAKES NO REPRESENTATIONS OR
WARRANTIES OF ANY NATURE OR KIND, WHETHER STATUTORY, EXPRESS OR IMPLIED, WITH
RESPECT TO ENVIRONMENTAL MATTERS OR THE PHYSICAL CONDITION OF THE SUBJECT
PROPERTY, AND GRANTEE, BY ACCEPTANCE OF THE CONVEYANCING DOCUMENTS, ACCEPTS THE
SUBJECT PROPERTY "AS IS," "WHERE IS," "WITH ALL FAULTS" AND WITHOUT ANY SUCH
REPRESENTATION OR WARRANTY BY GRANTOR AS TO ENVIRONMENTAL MATTERS, THE PHYSICAL
CONDITION OF THE SUBJECT PROPERTY, COMPLIANCE WITH SUBDIVISION OR PLATTING
REQUIREMENTS OR CONSTRUCTION OF ANY IMPROVEMENTS. Without limiting the
generality of the foregoing, Grantee hereby further acknowledges and agrees that
warranties of merchantability and fitness for a particular purpose are excluded
from the transaction contemplated by the Conveyancing Documents, as are any
warranties arising from a course of dealing or usage of trade. Grantee hereby
assumes all risk and liability (and agrees that BNPLC shall not be liable for
any special, direct, indirect, consequential, or other damages) resulting or
arising from or relating to the ownership, use, condition, location,
maintenance, repair, or operation of the Subject Property, except for damages
proximately caused by (and attributed by any applicable principles of
comparative fault to) the Established Misconduct of BNPLC. As used in the
preceding sentence, "ESTABLISHED MISCONDUCT" is intended to have, and be limited
to, the meaning given to it in the Common Definitions and Provisions Agreement
(Phase IV - Land) incorporated by reference into the Purchase Agreement (Phase
IV-Land) between BNPLC and Network Appliance, Inc. dated December ___, 1999,
pursuant to which Purchase Agreement BNPLC is delivering the Conveyancing
Documents.
The provisions of this Certificate shall be binding on Grantee, its
successors and assigns and any other party claiming through Grantee. Grantee
hereby acknowledges that BNPLC is entitled to rely and is relying on this
Certificate.
EXECUTED as of ________________, ____.
[NAI or the Applicable Purchaser]
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
67
EXHIBIT E
SECRETARY'S CERTIFICATE
The undersigned, [Secretary or Assistant Secretary] of BNP Leasing
Corporation, a Delaware corporation (the "Corporation"), hereby certifies as
follows:
1. That he is the duly, elected, qualified and acting Secretary [or
Assistant Secretary] of the Corporation and has custody of the corporate
records, minutes and corporate seal.
2. That the following named persons have been properly designated,
elected and assigned to the office in the Corporation as indicated below; that
such persons hold such office at this time and that the specimen signature
appearing beside the name of such officer is his or her true and correct
signature.
[THE FOLLOWING BLANKS MUST BE COMPLETED WITH THE NAMES AND SIGNATURES OF THE
OFFICERS WHO WILL BE SIGNING THE DEED AND OTHER SALE CLOSING DOCUMENTS ON BEHALF
OF THE CORPORATION.]
Name Title Signature
---- ----- ---------
------------------------ ------------------------ ------------------------
------------------------ ------------------------ ------------------------
3. That the resolutions attached hereto and made a part hereof were duly
adopted by the Board of Directors of the Corporation in accordance with the
Corporation's Articles of Incorporation and Bylaws. Such resolutions have not
been amended, modified or rescinded and remain in full force and effect.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal
of the Corporation on this ___ day of ___________, ____.
--------------------------------------
[signature and title]
68
CORPORATE RESOLUTIONS OF
BNP LEASING CORPORATION
WHEREAS, pursuant to that certain Purchase Agreement (Phase IV - Land)
(herein called the "Purchase Agreement") dated as of December ___, 1999, by and
between BNP Leasing Corporation (the "Corporation") and [NAI OR THE APPLICABLE
PURCHASER AS THE CASE MAY BE] ("Purchaser"), the Corporation agreed to sell and
Purchaser agreed to purchase or cause the Applicable Purchaser (as defined in
the Purchase Agreement) to purchase the Corporation's interest in the property
(the "Property") located in Sunnyvale, California more particularly described
therein.
NOW THEREFORE, BE IT RESOLVED, that the Board of Directors of the
Corporation, in its best business judgment, deems it in the best interest of the
Corporation and its shareholders that the Corporation convey the Property to
Purchaser or the Applicable Purchaser pursuant to and in accordance with the
terms of the Purchase Agreement.
RESOLVED FURTHER, that the proper officers of the Corporation, and each
of them, are hereby authorized and directed in the name and on behalf of the
Corporation to cause the Corporation to fulfill its obligations under the
Purchase Agreement.
RESOLVED FURTHER, that the proper officers of the Corporation, and each
of them, are hereby authorized and directed to take or cause to be taken any and
all actions and to prepare or cause to be prepared and to execute and deliver
any and all deeds and other documents, instruments and agreements that shall be
necessary, advisable or appropriate, in such officer's sole and absolute
discretion, to carry out the intent and to accomplish the purposes of the
foregoing resolutions.
EXHIBIT E - PAGE 2
69
EXHIBIT F
FIRPTA STATEMENT
Section 1445 of the Internal Revenue Code of 1986, as amended, provides
that a transferee of a U.S. real property interest must withhold tax if the
transferor is a foreign person. Sections 18805, 18815 and 26131 of the
California Revenue and Taxation Code, as amended, provide that a transferee of a
California real property interest must withhold income tax if the transferor is
a nonresident seller.
To inform [NAI OR THE APPLICABLE PURCHASER] (the "Transferee") that
withholding of tax is not required upon the disposition of a California real
property interest by transferor, BNP Leasing Corporation (the "Seller"), the
undersigned hereby certifies the following on behalf of the Seller:
1. The Seller is not a foreign corporation, foreign partnership, foreign
trust, or foreign estate (as those terms are defined in the Internal Revenue
Code and Income Tax Regulations);
2. The United States employer identification number for the Seller is
_____________________;
3.The office address of the Seller is ______________
_________________________ _________________.
4. The Seller is qualified to do business in California.
The Seller understands that this certification may be disclosed to the
Internal Revenue Service and/or to the California Franchise Tax Board by the
Transferee and that any false statement contained herein could be punished by
fine, imprisonment, or both.
The Seller understands that the Transferee is relying on this affidavit
in determining whether withholding is required upon said transfer.
Under penalties of perjury I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have authority to sign this document on
behalf of the Seller.
Dated: ___________, ____.
By:
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
