AMENDED AND RESTATED PURCHASE AGREEMENT
This AMENDED AND RESTATED PURCHASE AGREEMENT (this "Agreement") is
made as of December 8, 1995, by GENENTECH, INC., a Delaware corporation
("Genentech") and BNP LEASING CORPORATION, a Delaware corporation
("BNP").
R E C I T A L S
A. BNP has acquired the land described in Exhibit A attached hereto
and any improvements located thereon and is leasing the same to
Genentech pursuant to that certain Amended and Restated Lease Agreement
(as from time to time supplemented, amended or restated, the "Lease")
between Genentech and BNP dated as of the date hereof. (The land
described in Exhibit A and any and all other real or personal property
from time to time covered by the Lease and included within the "Leased
Property" as defined therein are hereinafter collectively referred to as
the "Property".)
B. The Lease amends, restates, replaces and supersedes a prior Lease
Agreement between BNP and Genentech dated as of August 1, 1995, as
modified by First Amendment to Lease Agreement dated as of September 7,
1995 (the "Prior Lease"), and as a condition to Landlord's agreement to
enter into the Lease, BNP requires the agreements set out herein. This
Agreement will amend, restate, replace and supersede a prior Purchase
Agreement between BNP and Genentech dated as of August 1, 1995 (the
"Prior Purchase Agreement").
NOW, THEREFORE, in consideration of the above recitals and other
good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Definitions. As used herein, the terms "Genentech", "BNP",
"Lease", "Property", "Prior Lease", and "Prior Purchase Agreement" shall
have the meanings indicated above; terms with initial capitals defined
in the Lease and used but not defined herein shall have the meanings
assigned to them in the Lease; and the terms listed immediately below
shall have the following meanings:
(a) Applicable Purchaser. "Applicable Purchaser" means any third
party designated by Genentech to purchase the interest of BNP in the
Property as provided in Paragraph 2(a) below.
(b) Calculation Date. "Calculation Date" means any Advance Date
or Base Rental Date under and as defined in the Lease.
(c) Deposit Taker. "Deposit Taker" means any of Banque Nationale
de Paris or its Affiliates authorized to take deposits and any of the
Participants or their Affiliates authorized to take deposits; provided,
an Affiliate of any Participant shall not qualify as a Deposit Taker
unless such Participant has guaranteed the return of any Restricted
Funds (and interest thereon) which BNP may have on deposit with such
Affiliate from time to time pursuant to a written guaranty in form and
substance approved by Genentech; and, provided further, that any Deposit
Taker other than an Affiliate of BNP must agree unconditionally
(pursuant to an agreement acceptable to Genentech) to remit all interest
earned on Restricted Funds deposited with it to BNP at least once each
calendar quarter, so that BNP may itself remit all such interest to
Genentech as provided in subparagraph 5(c)(ii) below.
(d) Designated Payment Date. "Designated Payment Date" means the
earlier of:
(1) the last Calculation Date under the Lease (whether the
last Calculation Date occurs on the last day of the scheduled Term of
the Lease or earlier because of an early termination of the Lease
pursuant to Paragraph 2 thereof or otherwise);
(2) any Calculation Date after an Event of Default or after a
breach by Genentech of any Vacaville Pledge Documents (and the
expiration of any cure or notice periods provided therein) has occurred,
provided such Calculation Date is designated as such in a written notice
given by BNP to Genentech when an Event of Default or such a breach by
Genentech is continuing and at least thirty (30) days before such
Calculation Date; or
(3) December 1, 2003, or if December 1, 2003 is not a Business
Day, then the next following Business Day.
(e) Fair Market Value. "Fair Market Value" means the fair market
value of the Property on or about the Designated Payment Date
(calculated under the assumptions, whether or not then accurate, that
Genentech has maintained the Property in compliance with all Applicable
Laws [including Environmental Laws]; that Genentech has completed all
Construction Projects, the construction of which was commenced prior to
the Designated Payment Date; that Genentech has repaired and restored
the Property after any damage following fire or other casualty; that
Genentech has restored the remainder of the Property after any partial
taking by eminent domain; that Genentech has completed any contests of
and paid any taxes due [other than Excluded Taxes] or other amounts
secured by or allegedly secured by a lien against the Property,
including any assessment liens, but not including any Prohibited
Encumbrances; that no conditions or circumstances on or about the
Property [such as the presence of an endangered species] is discovered
that will impede development of the Property; that development of the
Property will not be hindered or delayed because of the limited
availability of utilities or water; that any purchaser paying fair
market value for the Property will receive, upon its execution of a
Tranferee's Confidentiality Agreement in favor of Genentech, copies of
all of Genentech's books and records which are necessary or useful to a
future owner's or occupant's use of the Property in the manner permitted
by the Lease, including books and records evidencing the testing and
validation of the Property for the uses permitted by the Lease; that
without undue cost or delay any such purchaser can obtain any necessary
permits or licenses needed to use the Property for the purposes
permitted by the Lease; and that Genentech has cured any title defects
affecting the Property other than Prohibited Encumbrances, all in
accordance with the standards and requirements of the Lease as though
the Lease were continuing in force) as determined by an independent MAI
appraiser selected by BNP, which appraiser must have five (5) years or
more experience appraising similar properties in northern California.
(f) Genentech's PA Obligations. "Genentech's PA Obligations"
means the obligations of Genentech under this Agreement, including, but
not limited to, Genentech's obligations for payments required by or in
respect of Paragraph 2(a) and for any damages suffered by BNP because of
any breach of Paragraph 2.
(g) Purchase Price. "Purchase Price" means an amount equal to
Stipulated Loss Value outstanding on the Designated Payment Date, plus
all costs and expenses (including appraisal costs, withholding taxes (if
any) and reasonable Attorneys' Fees, as defined in the Lease) incurred
in connection with any sale of the Property by BNP hereunder or in
connection with collecting sales proceeds due hereunder.
(h) Prohibited Encumbrance. "Prohibited Encumbrance" means any
lien or other title defect encumbering the Property that is claimed by
BNP itself or lawfully claimed by a third party through or under BNP,
including any judgment lien lawfully filed against BNP and including any
tax lien assessed because of BNP's failure to pay Excluded Taxes, but
excluding the Lease and any lien or other title defect that (i) is a
Permitted Encumbrance (as defined in the Lease), regardless of whether
claimed by, through or under BNP, (ii) is claimed by, through or under
Genentech or any of the original Participants listed in Schedule 1 to
the Lease, or (iii) exists because of any breach by Genentech of the
Lease, because of anything done or not done by BNP in an effort to
satisfy subparagraph 10(b) of the Lease, or because of anything done or
not done by BNP at the request of Genentech.
(i) Qualified Securities. "Qualified Securities" means
unencumbered securities that have an aggregate value of no less than
Stipulated Loss Value, that when pledged to secure Genentech's PA
Obligations as provided in Paragraph 5 have a maturity of three years or
less and that evidence obligations of the United States Government.
(j) Remarketing Notice. "Remarketing Notice" shall have the
meaning assigned to it in Paragraph 2(b)(1) below.
(k) Required Documents. "Required Documents" means the grant deed
and other documents that BNP must tender pursuant to Paragraph 3 below.
(l) Restricted Funds. "Restricted Funds" shall have the meaning
assigned to it in Paragraph 5 below.
(m) Shortage Amount. "Shortage Amount" means any amount payable
to BNP by Genentech, rather than by the Applicable Purchaser, pursuant
to clause 2(a)(ii) below.
(n) Transferee's Confidentiality Agreement. "Transferee's
Confidentiality Agreement" means a written agreement in such form as
Genentech may reasonably require, executed by BNP or a future owner or
occupant of the Property, obligating the Person executing it to keep
confidential any proprietary information contained in books and records
which Genentech delivers to BNP pursuant to Paragraph 2(a)(ii).
Although any Transferee's Confidentiality Agreement must be in form
reasonably satisfactory to Genentech, it shall not prohibit, or impose a
license fee or other charge for, the use by the Person who executes such
agreement of any books and records described in Paragraph 2(a)(ii) in
connection with such Person's operation of the Property, nor will it
prohibit the delivery of such books and records or the disclosure of
information set forth therein (1) to any other future owner or occupant
of the Property who has itself executed a Transferee's Confidentiality
Agreement in favor of Genentech, or (2) required to any governmental
authority as a condition to the lawful use of the Property for the
purposes permitted in the Lease. As used in this definition,
"proprietary information" means Genentech's confidential scientific,
technical and/or business information, data or materials of Genentech
and its Affiliates (including without limitation Genentech's
intellectual property, trade secrets and other confidential information
of value to Genentech about, among other things, its manufacturing
processes, products, marketing and corporate strategies), but shall not
include any information, data or materials which a Person (whether a
future owner or occupant of the Property or any other transferee of BNP
hereunder) can demonstrate (a) is now or becomes public knowledge other
than by acts or omissions of such Person, (b) is lawfully obtained by
such Person from source(s) independent of Genentech hereunder (and not
to such Person's knowledge in breach of an obligation of confidentiality
in favor of Genentech), or (c) was previously known to such Person or is
subsequently developed by employees or agents of such Person
independently of any confidential information of Genentech delivered
pursuant to this Agreement or the Lease.
2. Genentech's Options and Obligations on the Designated Payment
Date.
(a) Choices. On the Designated Payment Date Genentech shall have
the right and the obligation to either:
(i) purchase or cause an Applicable Purchaser to purchase
BNP's interest in the Property and in Escrowed Proceeds, if any, for a
net cash price equal to the Purchase Price; or
(ii) cause an Applicable Purchaser who is not an Affiliate of
Genentech to purchase BNP's interest in the Property and in Escrowed
Proceeds, if any, for a net cash price not less than the lesser of (a)
the Fair Market Value of the Property or (b) eighteen percent (18%) of
Stipulated Loss Value outstanding immediately prior to the purchase.
If, however, the Fair Market Value is less than eighteen percent (18%)
of Stipulated Loss Value, BNP may elect to keep the Property and any
Escrowed Proceeds rather than sell to the Applicable Purchaser, in which
case Genentech shall (1) pay BNP an amount equal to (A) eighty-two
percent (82%) of Stipulated Loss Value, less (B) any Escrowed Proceeds
then held and to be retained by BNP, and (2) promptly deliver to BNP
(upon BNP's execution of a Transferee's Confidentiality Agreement in
favor of Genentech) copies of all plans and specifications for the
Property prepared in connection with the construction contemplated by
the Lease and all other books and records of Genentech which will be
necessary or useful to any future owner's or occupant's use of the
Property in the manner permitted by the Lease, including books and
records evidencing the testing and validation of Property for the uses
permitted by the Lease. Unless BNP elects to keep the Property pursuant
to the preceding sentence, Genentech must make a supplemental payment to
BNP on the Designated Payment Date equal to the excess (if any) of the
Purchase Price over the net cash price actually paid to BNP on the
Designated Payment Date by the Applicable Purchaser for BNP's interest
in the Property and in Escrowed Proceeds, if any. However, provided no
Event of Default has occurred and is continuing under the Lease, and
provided further that neither Genentech nor any Applicable Purchaser has
failed to pay any amount required to be paid by this Agreement on the
date such amount first became due, any supplemental payment required by
the preceding sentence shall not exceed eighty-two percent (82%) of
Stipulated Loss Value on the Designated Payment Date. Any supplemental
payment payable to BNP by Genentech, rather than by the Applicable
Purchaser, pursuant to this clause (ii) is hereinafter referred to as
the "Shortage Amount." If the net cash price actually paid by the
Applicable Purchaser to BNP exceeds the Purchase Price and all other
sums that are then due from Genentech to BNP, Genentech shall be
entitled to such excess.
(b) Election by Genentech. Genentech shall have the right to
elect whether it will satisfy the obligations set out in clause (i) or
(ii) of the preceding Paragraph 2(a); provided, however, that the
following conditions are satisfied:
(1) To give BNP the opportunity to have the Fair Market Value
determined by an appraiser before the Designated Payment Date, Genentech
must, unless Genentech agrees that Fair Market Value will not be less
than eighteen percent (18%) of Stipulated Loss Value on the Designated
Payment Date, provide BNP with a Remarketing Notice. "Remarketing
Notice" means a notice given by Genentech to BNP (and to each of the
Participants) no earlier than two hundred seventy (270) days before the
Designated Payment Date and no later than one hundred and eighty (180)
days before the Designated Payment Date, specifying that Genentech does
not agree that the Fair Market Value is equal to or greater than
eighteen percent (18%) of the Stipulated Loss Value. No Remarketing
Notice will be required unless Genentech does not agree that Fair Market
Value will equal or exceed eighteen percent (18%) of Stipulated Loss
Value on the Designated Payment Date. But if for any reason (including
but not limited to any acceleration of the Designated Payment Date
pursuant to clause (2) of the definition of Designated Payment Date
above) Genentech fails to provide a Remarketing Notice within the time
periods specified in the definition of Remarketing Notice above, Fair
Market Value shall, for purposes of this Agreement, be deemed to be no
less than eighteen percent (18%) of Stipulated Loss Value on the
Designated Payment Date.
(2) To give BNP the opportunity to prepare the Required
Documents before the Designated Payment Date, Genentech must, if it is
to satisfy the obligations set forth in Paragraph 2(a) by causing an
Applicable Purchaser to purchase Landlord's interest in the Leased
Property, irrevocably specify the Applicable Purchaser in notice to BNP
given at least seven (7) days prior to the Designated Payment Date. If
for any reason Genentech fails to so specify an Applicable Purchaser,
Genentech shall be deemed to have irrevocably elected to satisfy the
obligations set forth in clause (i) of Paragraph 2(a) by itself
purchasing the Landlord's interest in the Leased Property.
(c) Termination of Genentech's Option To Purchase. Without
limiting BNP's right to require Genentech to satisfy the obligations
imposed by Paragraph 2(a), Genentech shall have no further option
hereunder to purchase the Property if either:
(1) Genentech shall have elected to satisfy its obligations
under clause (ii) of Paragraph 2(a) on a Designated Payment Date and BNP
shall have elected to keep the Property on such Designated Payment Date
in accordance with clause (ii) of Paragraph 2(a); or
(2) Genentech shall have failed on a Designated Payment Date
to make or cause to be made all payments to BNP required by this
Agreement or by the Lease and such failure shall have continued beyond
the thirty (30) day period for tender specified in the next sentence.
If BNP does not receive all payments due under the Lease and all
payments required hereunder on a Designated Payment Date, Genentech may
nonetheless tender to BNP the full Purchase Price and all amounts then
due under the Lease, together with interest on the total Purchase Price
computed at the Default Rate from the Designated Payment Date to the
date of tender, and if presented with such a tender within thirty (30)
days after the applicable Designated Payment Date, BNP must accept it
and promptly thereafter deliver any Escrowed Proceeds and a deed and all
other Required Documents listed in Paragraph 3.
(d) Payment to BNP. All amounts payable under the preceding
Paragraphs 2(a) or 2(c) by Genentech and, if applicable, by the
Applicable Purchaser must be paid directly to BNP, and no payment to any
other party shall be effective for the purposes of this Agreement. In
addition to the payments required under Paragraph 2(a) hereunder, on the
Designated Payment Date Genentech must pay all amounts then due to BNP
under the Lease. BNP will remit any excess amounts due Genentech
pursuant to the last sentence of clause (ii) of Paragraph 2(a) promptly
after BNP's receipt of the same.
(e) Effect of Options on Subsequent Title Encumbrances. It is the
intent of BNP and Genentech that any conveyance of the Property to
Genentech or any Applicable Purchaser pursuant to this Agreement shall
cut off and terminate any interest in the Property claimed by, through
or under BNP, including the Participants (but not any unsatisfied
obligations of Genentech to BNP under the Lease, the Environmental
Indemnity Agreement or this Agreement), including but not limited to any
Prohibited Encumbrances and any leasehold or other interests conveyed by
BNP in the ordinary course of BNP's business. Anyone accepting or
taking any interest in the Property by or through BNP after the date of
this Agreement without the express prior written consent of Genentech
and with actual or constructive notice of this Agreement shall acquire
such interest subject to the rights and options granted Genentech
hereby. Further, Genentech and any Applicable Purchaser shall be
entitled to pay any payment required by this Agreement for the purchase
of the Property directly to BNP notwithstanding any prior conveyance or
assignment by BNP, voluntary or otherwise, of any right or interest in
this Agreement or the Property, and neither Genentech nor any Applicable
Purchaser shall be responsible for the proper distribution or
application of any such payments by BNP.
3. Terms of Conveyance Upon Purchase. Immediately after receipt of
all payments to BNP required pursuant to the preceding Paragraph 2, BNP
must, unless it is to keep the Property as permitted by Paragraph
2(a)(ii), deliver Escrowed Proceeds, if any, and convey all of its
right, title and interest in the Property by grant deed to Genentech or
the Applicable Purchaser, as the case may be, subject only to the
Permitted Encumbrances (as defined in the Lease) and any other
encumbrances that do not constitute Prohibited Encumbrances. However,
such conveyance shall not include the right to receive any payment under
the Lease then due BNP or that may become due thereafter because of any
expense or liability incurred by BNP resulting in whole or in part from
events or circumstances occurring before such conveyance. All costs of
such purchase and conveyance of every kind whatsoever, both foreseen and
unforeseen, shall be the responsibility of the purchaser, and the form
of grant deed used to accomplish such conveyance shall be substantially
in the form attached as Exhibit B. With such grant deed, BNP shall also
tender to Genentech or the Applicable Purchaser, as the case may be, the
following, each fully executed and, where appropriate, acknowledged on
BNP's behalf by an officer of BNP: (1) a Preliminary Change of Ownership
Report in the form attached as Exhibit C, (2) a Bill of Sale and
Assignment of Contract Rights and Intangible Assets in the form attached
as Exhibit D, (3) an Acknowledgment of Disclaimer of Representations and
Warranties, in the form attached as Exhibit E, which Genentech or the
Applicable Purchaser must execute and return to BNP, (5) a Documentary
Transfer Tax Request in the form attached as Exhibit F, (6) a
Secretary's Certificate in the form attached as Exhibit G, (7) a letter
to the title insurance company insuring title to the Property in the
form attached as Exhibit H, and (8) a certificate concerning tax
withholding in the form attached as Exhibit I.
4. Survival of Genentech's Obligations.
(a) Status of this Agreement. Except as expressly provided
herein, this Agreement shall not terminate, nor shall Genentech have any
right to terminate this Agreement, nor shall Genentech be entitled to
any reduction of the Purchase Price hereunder, nor shall the obligations
of Genentech to BNP under Paragraph 2 be affected by reason of (i) any
damage to or the destruction of all or any part of the Property from
whatever cause, (ii) the taking of or damage to the Property or any
portion thereof under the power of eminent domain or otherwise for any
reason, (iii) the prohibition, limitation or restriction of Genentech'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 Genentech
or any party claiming under Genentech by paramount title or otherwise,
(v) Genentech's prior acquisition or ownership of any interest in the
Property, (vi) any default on the part of BNP under this Agreement, the
Lease or any other agreement to which BNP 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 Genentech to make payment to and,
if applicable, to cause the Applicable Purchaser to make payment to BNP
under Paragraph 2 shall be separate and independent covenants and
agreements from BNP's obligation under Paragraph 3 to convey the
Property pursuant to this Agreement; provided, however, that nothing in
this subparagraph shall excuse BNP from its obligation to tender a grant
deed and the other Required Documents in substantially the form attached
hereto as exhibits as required by Paragraph 3 upon the tender by
Genentech and/or the Applicable Purchaser of such payments and of the
other documents to be executed in favor of BNP at the closing of the
sale. Accordingly, the Purchase Price and the Shortage Amount, as the
case may be under Paragraph 2, shall continue to be payable in all
events, and the obligations of Genentech hereunder shall continue
unaffected. If for any reason BNP fails to tender the Required
Documents as required by Paragraph 3, BNP may cure such refusal at any
time before thirty (30) days after receipt of a written demand for such
cure from Genentech.
(b) Remedies Under the Lease and the Environmental Indemnity
Agreement. No repossession of or re-entering upon the Property or
exercise of any other remedies available under the Lease or the
Environmental Indemnity Agreement shall relieve Genentech of its
liabilities and obligations hereunder, all of which shall survive the
exercise of remedies under the Lease and Environmental Indemnity
Agreement. Genentech acknowledges that the consideration for this
Agreement is separate and independent of the consideration for the Lease
and the Environmental Indemnity Agreement, and Genentech's obligations
hereunder shall not be affected or impaired by any event or circumstance
that would excuse Genentech from performance of its obligations under
the Lease or the Environmental Indemnity Agreement.
5. Security for Genentech's PA Obligations.
(a) Covenant to Provide Security. To secure Genentech's PA
Obligations, Genentech must on or before December 1, 2000, unless BNP's
interest in the Property shall already have been sold to Genentech or an
Applicable Purchaser pursuant to Paragraph 2(a) and Genentech shall have
already paid to BNP all amounts required in connection with the sale, or
unless BNP and all Participants shall have waived in writing the
requirements of this Paragraph 5 (it being understood that any of BNP or
the Participants may decline to provide such a waiver in its sole and
absolute discretion), either:
(1) grant to BNP and thereafter maintain in favor of BNP, as
hereinafter provided, a first priority perfected security interest from
the date of the pledge thereof in Qualified Securities and the proceeds
thereof; or
(2) deliver immediately available funds to BNP in an amount
equal to Stipulated Loss Value ("Restricted Funds"), which BNP shall be
entitled to hold as security and apply as hereinafter provided.
(b) Conditions to the Use of Qualified Securities. If Genentech
chooses to grant and maintain a first priority perfected security
interest in Qualified Securities in lieu of delivering Restricted Funds
to BNP or as a replacement for previously provided Restricted Funds,
Genentech must satisfy the following conditions:
(i) No later than thirty days before the expected date
of the pledge of Qualified Securities, Genentech must have delivered a
fully executed pledge agreement, financing statements and other
documents (the "Vacaville Pledge Documents"), all in form and substance
satisfactory to Genentech and to each of BNP and the Participants and
their respective counsel, which will create, evidence and perfect BNP's
security interest in the Qualified Securities. The Vacaville Pledge
Documents may, among other things, establish (and evidence Genentech's
pledge to BNP of) one or more custodial accounts, in which the Qualified
Securities can be held, and appoint a custodian satisfactory to
Genentech, BNP and the Participants to maintain such accounts. The
Vacaville Pledge Documents will also provide that all pledged securities
shall either be newly acquired by BNP or such a custodian with funds
provided by Genentech (and thus not subject to possible prior
encumbrances) or be covered by certificates provided to BNP by the
custodian or by others satisfactory to BNP which certify facts necessary
to establish that the securities are unencumbered except by the pledge
to BNP. The Vacaville Pledge Documents will also provide for procedures
to allow the liquidation of Qualified Securities immediately prior to
the Designated Payment Date at the request of Genentech as needed to
provide funds for payments required of Genentech on the Designated
Payment Date, provided that such procedures can be established without
jeopardizing the perfection or priority of BNP's security interest. The
Vacaville Pledge Documents will also provide that Qualified Securities
(or proceeds thereof) remaining after Genentech's PA Obligations are
satisfied in full shall be promptly returned to Genentech, free from any
security interest or lien under the Vacaville Pledge Documents. To
facilitate Genentech's satisfaction of this condition, BNP will cause
its counsel to prepare and submit drafts of the Vacaville Pledge
Documents to Genentech and to the Participants, if Genentech requests
such drafts from BNP in a written notice given to BNP no later than
ninety days prior to the expected date of the pledge of Qualified
Securities, and if Genentech unconditionally confirms in such notice
that Genentech will pay BNP's reasonable legal fees and other costs of
preparing the drafts and otherwise responding to the request. Such
drafts are expected to be substantially similar to the Pledge Agreement,
Custodial Agreement and other documents executed by Genentech in favor
of BNP to be effective as of November 19, 1993 (the "Building 7 Pledge
Documents") in connection with another Purchase Agreement between BNP
and Genentech dated the same date; however, many of the Participants
have never seen or approved of the Building 7 Pledge Documents, and thus
Participants may require substantial changes to the Building 7 Pledge
Documents before approving the same as the Vacaville Pledge Documents
hereunder. Further, BNP itself may require substantial changes, thereby
rendering the Vacaville Pledge Documents less favorable to Genentech
than the Building 7 Pledge Documents, because of changes in the laws or
regulations governing such documents or the generally accepted
interpretations thereof, because of changes in Genentech's financial
condition, because of the greater dollar amount of the obligations to be
secured under the Vacaville Pledge Documents as compared to obligations
secured by the Building 7 Pledge Documents, because of the designation
of another custodian thereunder or because of other factors.
(ii) No later than five days prior to the expected date
of the pledge of Qualified Securities, Genentech must have delivered to
BNP or a custodian appointed under the Vacaville Pledge Documents (A)
unencumbered funds with which BNP or such custodian can purchase the
Qualified Securities to be pledged to BNP, or (B) Qualified Securities
to be pledged under the Vacaville Pledge Documents together with such
certificates and other documents as are required by the Vacaville Pledge
Documents to establish that such securities are subject to no prior
encumbrances.
(iii) No later than the effective date of the pledge of
Qualified Securities, Genentech must have provided, at its expense, one
or more written legal opinions, in form and substance approved by BNP
and the Participants before then, opining that the Vacaville Pledge
Documents are duly and authorized and executed by Genentech and other
parties thereto (other than BNP or any custodian who is an Affiliate of
BNP, a Participant or an Affiliate of a Participant), that the Vacaville
Pledge Documents are enforceable against Genentech, and that pursuant to
the Vacaville Pledge Documents BNP has a valid, first priority,
perfected security interest in Qualified Securities to secure
Genentech's PA Obligations. Such opinion or opinions must also cover
such other matters as BNP or any Participant deems to be customary in
such opinions, must be addressed to BNP and the Participants and must be
issued by one or more law firms reasonably acceptable to BNP and the
Participants with nationally recognized expertise in the subject matter
thereof.
To meet deadlines of Genentech for the execution of this Agreement, and
to save legal fees payable by Genentech in connection with the execution
of this Agreement, Genentech and BNP are postponing the negotiation and
delivery of the Vacaville Pledge Documents and related legal opinions by
the foregoing provisions. In doing so they recognize that the pledge of
Qualified Securities is not to become effective until years after the
date of this Agreement and that the law governing the pledge could
change between now and the time the pledge is to become effective.
Genentech and BNP do not, however, want to submit themselves to a risk
of liability or loss of rights hereunder for being judged unreasonable
with respect to the foregoing conditions. Accordingly, both Genentech
and BNP hereby disclaim any obligation express or implied to be
reasonable in negotiating the Vacaville Pledge Documents or the
requirements for related legal opinions, and in lieu of any such
obligation to be reasonable they are providing herein for the deposit of
Restricted Funds as an alternative to the pledge of Qualified
Securities. If for any reason whatsoever (including, but not limited
to, the failure of Genentech and BNP to agree upon the Vacaville Pledge
Documents or the refusal of any Participant to approve any Vacaville
Pledge Documents negotiated by BNP and Genentech) Genentech does not
satisfy the conditions listed above in this subparagraph (b) prior to
the deadlines specified above, then Genentech shall have the right and
the obligation to deliver the Restricted Funds rather than to pledge
Qualified Securities.
(c) Term and Conditions Relating to Restricted Funds. Any
Restricted Funds which Genentech does deliver will be held by BNP in
accordance with and governed by the following provisions:
(i) The Restricted Funds shall not be considered an advance
payment of amounts due under this Agreement or a measure of BNP's
damages should a breach of this Agreement by Genentech occur.
(ii) So long as Restricted Funds are in BNP's possession, BNP
shall keep the Restricted Funds deposited in one or more accounts (as
BNP shall from time to time determine to be appropriate in its sole
discretion) maintained by a Deposit Taker. Accounts into which
Restricted Funds are deposited shall be interest bearing, but BNP does
not guarantee a rate of interest or other earnings on such accounts, and
BNP shall not be required to place Restricted Funds into any account or
other investment in which BNP cannot obtain a perfected, first priority
security interest. Further, if Restricted Funds or any interest thereon
are lost because of any failure of a Deposit Taker to return the same,
whether caused by the insolvency of such Deposit Taker or otherwise, BNP
shall be responsible for such loss only if the Deposit Taker is an
Affiliate of BNP. However, at the time BNP deposits Restricted Funds
into any account maintained by a Deposit Taker that is not an Affiliate
of BNP: (1) such Deposit Taker must either be approved by Genentech or
be rated no lower than A or the equivalent thereof by Standard and
Poor's Corporation or A-2 or the equivalent thereof by Moody's Investor
Service, Inc; and (2) Genentech must have been provided with and
approved (a) the agreement concerning such Deposit Taker's obligation to
periodically remit interest to BNP as described in the definition of
Deposit Taker above, and (b) in the case of any Deposit Taker that is an
Affiliate of a Participant, the written guaranty of such Participant
described in the definition of Deposit Taker above. The interest
accruing on the accounts into which BNP deposits Restricted Funds from
time to time shall be reported by Genentech as Genentech's income for
income tax purposes. All interest earned on the Restricted Funds will
be added to and made a part of the Restricted Funds, but prior to any
Designated Payment Date, BNP shall remit all such interest to Genentech
no less often than once during each calendar quarter, whereupon such
interest shall be deemed released from the security interest hereinafter
granted. Except for interest remitted to Genentech by BNP pursuant to
the preceding sentence, Genentech shall have no right to withdraw or to
recover the Restricted Funds or to assign or encumber any interest
Genentech may have in the Restricted Funds until all payments to BNP
required by this Agreement are received by BNP.
(iii) As security for Genentech's PA Obligations Genentech
hereby grants to BNP a security interest, a lien and a right of offset,
each of which shall be in addition to BNP's rights at common law, in and
against all Restricted Funds, all investments made with Restricted
Funds, all interest and other earnings thereon (subject to the
provisions herein requiring periodic remittance of interest earned on
Restricted Funds to Genentech), and all deposit accounts and/or security
accounts into which such Restricted Funds, investments, interest and
other earnings are held at any time and all proceeds of the foregoing.
Genentech hereby authorizes and directs all Deposit Takers to allow BNP
to offset the Restricted Funds against any amount past due under this
Agreement and to reflect on their books and records the pledge to BNP of
all Restricted Funds they may hold on deposit from time to time. These
provisions are self-operative. No further instrument is required to
effect the security interest, lien and right of offset in and against
Restricted Funds as provided above. In confirmation thereof, however,
Genentech agrees to execute, acknowledge, and deliver promptly any
certificate, financing statement or other document requested by BNP as
necessary or helpful to evidence, perfect or preserve the security
interest, lien and right of set-off. Genentech also agrees to provide
to BNP contemporaneously with the delivery of any Restricted Funds one
or more written legal opinions in form and substance approved by BNP and
the Participants before then, opining that pursuant to this Agreement
(or other documents described in the preceding sentence) BNP has a
valid, first priority, perfected security interest in the Restricted
Funds to secure Genentech's PA Obligations. Such opinion or opinions
must also be addressed to BNP and the Participants and must be issued by
one or more law firms reasonably acceptable to BNP and the Participants
with nationally recognized expertise in the subject matter thereof.
(iv) Any Restricted Funds (including any interest accrued on
Restricted Funds that BNP has not yet remitted to Genentech as set forth
herein) not applied to satisfy Genentech's PA Obligations shall be
promptly returned to Genentech by BNP, free from any security interest
or lien granted pursuant to this Agreement, after (but only after)
Genentech's PA Obligations (including but not limited to payments of
interest on past due amounts owing to BNP which may accrue as provided
herein) are satisfied in full; provided, however: (A) this provision
shall not excuse BNP from its obligation to remit interest earned on
Restricted Funds as provided above; (B) if subsequent to Genentech's
delivery of Restricted Funds Genentech and BNP do agree upon Vacaville
Pledge Documents and upon other arrangements for Genentech's pledge of
Qualified Securities in lieu of the deposit of Restricted Funds, all in
form and substance satisfactory to Genentech, BNP and the Participants
in their sole and absolute discretion, then the Restricted Funds
(including any interest accrued on Restricted Funds that BNP has not yet
remitted to Genentech) will be promptly returned to Genentech when such
pledge becomes effective (or, if directed by Genentech in any notice
delivered to BNP at least 3 days prior to date when such pledge becomes
effective, BNP shall on the date the pledge is to become effective
withdraw the Restricted Funds from the accounts in which they are
deposited and use the same to acquire the Qualified Securities which
will be so pledged); and (C) if directed by Genentech to do so in any
notice delivered to BNP at least 3 days prior to any Designated Payment
Date, BNP shall on the Designated Payment Date withdraw the Restricted
Funds from the accounts in which they are deposited and apply the same
against payments due to BNP hereunder on such Designated Payment Date.
(v) Nothing in this Agreement shall authorize any party
holding any Restricted Funds (other than BNP and its permitted assigns
under this Agreement) to offset the Restricted Funds against any
obligation of Genentech. BNP may require as a condition to placing any
Restricted Funds with a Deposit Taker that such Deposit Taker waive any
rights it may have to offset the Restricted Funds against any obligation
owed to it by Genentech or others, that such Deposit Taker note BNP's
rights hereunder on such Deposit Taker's books with respect to the
accounts it maintains for the Restricted Funds and that such Deposit
Taker agree to such other requirements as BNP then deems appropriate to
preserve the Restricted Funds as security for Genentech's PA
Obligations.
(vi) If by an assignment permitted by this Agreement BNP
assigns its interest in the Property prior to any sale thereof pursuant
to this Agreement, BNP may also transfer its interest in the Restricted
Funds to the assignee and thereafter BNP will have no liability for the
return or proper application of the Restricted Funds, it being agreed
that Genentech shall look solely to the new owner of the Property for
the return or proper application of the same.
6. Remedies Cumulative. No right or remedy herein conferred upon or
reserved to BNP is intended to be exclusive of any other right or remedy
BNP 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. No Implied Waiver. The failure of either party to this Agreement
to insist at any time upon the strict performance of any covenant or
agreement of the other party or to exercise any remedy contained in this
Agreement shall not be construed as a waiver or a relinquishment thereof
for the future. The waiver by either party of or redress for any
violation of any term, covenant, agreement or condition contained in
this Agreement shall not prevent a subsequent act, which would have
originally constituted a violation, from having all the force and effect
of an original violation. No express waiver by either party shall
affect any condition other than the one specified in such waiver and
that one only for the time and in the manner specifically stated. A
receipt by BNP of any payment hereunder with knowledge of the breach of
this Agreement shall not be deemed a waiver of such breach, and no
waiver by either party of any provision of this Agreement shall be
deemed to have been made unless expressed in writing and signed by the
waiving party.
8. Attorneys' Fees and Legal Expenses. If either party commences any
legal action or other proceeding to enforce any of the terms of this
Agreement or the documents and agreements referred to herein, or because
of any breach by the other party or dispute hereunder or thereunder, the
successful or prevailing party, shall be entitled to recover from the
nonprevailing party all Attorneys' Fees incurred in connection
therewith, whether or not such controversy, claim or dispute is
prosecuted to a final judgment. Any such Attorneys' Fees incurred by
either party in enforcing a judgment in its favor under this Agreement
shall be recoverable separately from such judgment, and the obligation
for such Attorneys' Fees is intended to be severable from other
provisions of this Agreement and not to be merged into any such
judgment.
9. Estoppel Certificate. Genentech will, upon not less than twenty
(20) days' prior written request by BNP, execute, acknowledge and
deliver to the requesting party 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 the signer may
have knowledge. Any such statement may be relied upon by any
Participant or prospective purchaser or assignee of BNP with respect to
the Property. Genentech shall be required to provide such a certificate
no more frequently than once in any six month period; provided, however,
that if BNP determines that there is a significant business reason for
requiring a current certificate, including, without limitation, the need
to provide such a certificate to a prospective purchaser or assignee,
Genentech shall provide a certificate upon BNP's request whether or not
Genentech had provided a certificate within the prior six month period.
10. Notices. Each provision of this Agreement referring to the
sending, mailing or delivery of any notice or referring to the making of
any payment to BNP, shall be deemed to be complied with when and if the
following steps are taken:
(a) All payments required to be made by Genentech or the
Applicable Purchaser to BNP hereunder shall be paid to BNP in
immediately available funds in accordance with the payment instructions
set forth in the Lease or as BNP may otherwise direct by written notice
sent in accordance herewith. Time is of the essence as to all payments
required hereunder and other obligations of Genentech. All payments
required to be made by BNP to Genentech pursuant to the last sentence of
clause (ii) of Paragraph 2(a) shall be paid to Genentech in immediately
available funds at the address of Genentech set forth below or as
Genentech may otherwise direct by written notice sent in accordance
herewith.
(b) All notices and other communications to be made hereunder to
the parties hereto shall be in writing (at the addresses set forth
below) and shall be given by any of the following means: (1) personal
service; (2) electronic communication, whether by telex, telegram or
telecopying (if confirmed in writing sent by United States first class
mail, return receipt requested); or (3) registered or certified first
class mail, return receipt requested. Such addresses may be changed by
notice to the other parties given in the same manner as provided above.
Any notice or other communication sent pursuant to clause (1) or (2)
shall be deemed received upon such personal service or upon dispatch by
electronic means except for telecopies, and, if telecopied or sent
pursuant to clause (3), shall be deemed received five (5) days following
deposit in the mail. Until changed, addresses for notices are as
follows:
Address of BNP:
BNP Leasing Corporation
717 North Harwood Street
Suite 2630
Dallas, Texas 75201
Attention: Lloyd Cox
Telecopy: (214) 969-0060
With a copy to:
Banque Nationale de Paris, San Francisco
180 Montgomery Street
San Francisco, California 94104
Attention: Jennifer Cho
Telecopy: (415) 296-8954
And with a copy to:
Clint Shouse
Thompson & Knight, P.C.
1700 Pacific Avenue
Suite 3300
Dallas, Texas 75201
Telecopy: (214) 969-1550
Address of Genentech:
Genentech, Inc.
Attn: Corporate Secretary
460 Point San Bruno Boulevard
South San Francisco, California 94080
Telecopy: (415) 952-9881
With a copy to:
Morrison & Foerster
555 West Fifth Street
Suite 3500
Los Angeles, California 90013-1024
Attention: Tom Fileti
Telecopy: (213) 892-5454
11. Severability. Each and every covenant and agreement of Genentech
contained in this Agreement is, and shall be construed to be, a separate
and independent covenant and agreement. If any term or provision of
this Agreement or the application thereof to any person or circumstances
shall to any extent be invalid and unenforceable, the remainder of this
Agreement, or the application of such term or provision to persons or
circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby. Further, the obligations
of Genentech hereunder, to the maximum extent possible, shall be deemed
to be separate, independent and in addition to, not in lieu of, the
obligations of Genentech under the Lease. In the event of any
inconsistency between the terms of this Agreement and the terms and
provisions of the Lease, the terms and provisions of this Agreement
shall control.
12. Entire Agreement. This Agreement and the instruments referred to
herein supersede any prior negotiations and agreements between the
parties concerning the Property, including the Prior Lease and the Prior
Purchase Agreement, but not including the Environmental Indemnity
Agreement, and no amendment or modification of this Agreement shall be
binding or valid unless expressed in a writing executed by both parties
hereto. Genentech ratifies and confirms the Environmental Indemnity
Agreement as a separate and independent continuing agreement.
13. Paragraph Headings. The paragraph headings contained in this
Agreement are for convenience only and shall in no way enlarge or limit
the scope or meaning of the various and several paragraphs hereof.
14. Gender and Number. Within this Agreement, words of any gender
shall be held and construed to include any other gender and words in the
singular number shall be held and construed to include the plural,
unless the context otherwise requires.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE
UNDER AND SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA
WITHOUT REGARD TO CONFLICTS OR CHOICE OF LAWS.
16. Successors and Assigns. The terms, provisions, covenants and
conditions hereof shall be binding upon Genentech and BNP and their
respective permitted successors and assigns and shall inure to the
benefit of Genentech and BNP and all permitted transferees, mortgagees,
successors and assignees of Genentech and BNP with respect to the
Property; provided, that the rights of BNP hereunder shall not pass to
Genentech or any Applicable Purchaser or any subsequent owner claiming
through them. Prior to the Designated Payment Date BNP may transfer,
assign and convey, in whole or in part, the Property and any and all of
its rights under this Agreement (subject to the terms of this Agreement)
by any conveyance that constitutes a Permitted Transfer, but not
otherwise. If BNP sells or otherwise transfers the Property and assigns
its rights under this Agreement and the Lease pursuant to a Permitted
Transfer, and if BNP's successor in interest confirms its liability for
the obligations imposed upon BNP by this Agreement and the Lease on and
subject to the express terms set out herein and therein, then BNP shall
thereby be released from any further obligations under this Agreement
and the Lease, and Genentech agrees to look solely to each successor in
interest of BNP for performance of such obligations.
17. WAIVER OF JURY TRIAL. BNP AND GENENTECH EACH HEREBY WAIVES ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF THE LEASE, THIS AGREEMENT OR ANY OTHER DOCUMENT
OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS
TRANSACTION AND THE RELATIONSHIP THAT IS BEING ESTABLISHED. The scope
of this waiver is intended to be all-encompassing of any and all
disputes that may be filed in any court and that relate to the subject
matter of this transaction, including without limitation, contract
claims, tort claims, breach of duty claims, and all other common law and
statutory claims. Genentech and BNP each acknowledge that this waiver
is a material inducement to enter into a business relationship, that
each has already relied on the waiver in entering into this Agreement
and the other documents referred to herein, and that each will continue
to rely on the waiver in their related future dealings. Genentech and
BNP each further warrant and represent that it has reviewed this waiver
with its legal counsel, and that it knowingly and voluntarily waives its
jury trial rights following consultation with legal counsel. THIS
WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY
OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR TO ANY OTHER
DOCUMENTS OR AGREEMENTS RELATING TO THE LEASE, THIS AGREEMENT OR THE
ENVIRONMENTAL INDEMNITY AGREEMENT. In the event of litigation, this
Agreement may be filed as a written consent to a trial by the court.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
"BNP"
BNP LEASING CORPORATION,
a Delaware corporation
By:
Name:
Title:
"Genentech"
GENENTECH, INC.,
a Delaware corporation
By:
Name:
Title:
Exhibit A
LEGAL DESCRIPTION
ALL THAT REAL PROPERTY SITUATED IN THE CITY OF VACAVILLE, COUNTY OF
SOLANO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL ONE:
PARCEL "4D", AS SHOWN ON THAT CERTAIN MAP ENTITLED: "PARCEL MAP, BEING A
RESUBDIVISION OF PARCEL 4, AS SHOWN IN BOOK 38 OF PARCEL MAPS, PAGE 35,
PARCELS 14-22, PORTIONS OF AKERLY DRIVE AND BARCAR DRIVE AS SHOWN IN
BOOK 39 OF MAPS, PAGE 74, AND PORTIONS OF LANDS DESCRIBED IN DEED
RECORDED MAY 13, 1982, PAGE 29409, AS INSTRUMENT NO. 17086 IN THE OFFICE
OF THE COUNTY RECORDER OF SOLANO COUNTY, STATE OF CALIFORNIA," FILED
JULY 31, 1995 IN THE OFFICE OF THE COUNTY RECORDER OF SOLANO COUNTY, IN
BOOK 39 OF PARCEL MAPS, PAGE 37.
EXCEPTING THEREFROM AN UNDIVIDED ONE-HALF (1/2) INTEREST IN ALL
MINERALS, MINERAL DEPOSITS, OIL, GAS AND OTHER HYDROCARBON SUBSTANCES OF
EVERY KIND AND CHARACTER BELOW 500 FEET FROM THE SURFACE OF SAID LAND,
BUT WITHOUT, HOWEVER, THE RIGHT OF SURFACE ENTRY, AS EXCEPTED AND
RESERVED IN DEED FROM MARGARET JOSEPHINE SHELLHAMMER TO GERTRUDE M.
EAMES, DATED JUNE 8, 1956, RECORDED JUNE 12, 1956 IN BOOK 833 OF
OFFICIAL RECORDS, PAGE 480 AND IN DEED FROM MARGARET JOSEPHINE
SHELLHAMMER TO BARBARA C. SANTOS DATED DECEMBER 28, 1962, RECORDED
JANUARY 4, 1963 IN BOOK 1178 OF OFFICIAL RECORDS, PAGE 520, AND IN DEED
FROM MARGARET JOSEPHINE SHELLHAMMER TO ROBERTA SANTOS, DATED DECEMBER
28, 1962, RECORDED JANUARY 4, 1963 IN BOOK 1178 OF OFFICIAL RECORDS,
PAGE 529, SOLANO COUNTY RECORDS.
ALSO EXCEPTING AN UNDIVIDED ONE-HALF (1/2) INTEREST IN ALL OIL, GAS AND
OTHER HYDROCARBONS; NON-HYDROCARBON GASSES OR GASEOUS SUBSTANCES; ALL
OTHER MINERALS OF WHATSOEVER NATURE, WITHOUT REGARD TO SIMILARITY TO THE
ABOVE-MENTIONED SUBSTANCES; AND ALL SUBSTANCES THAT MAY BE PRODUCED
THEREWITH FROM SAID REAL PROPERTY AS RESERVED IN THE DEED FROM CHEVRON
U.S.A. INC., A CORPORATION, RECORDED APRIL 1, 1987 IN BOOK 1987 PAGE
42125 OFFICIAL RECORDS AS INSTRUMENT NO. 21698.
ALSO EXCEPTING AN UNDIVIDED ONE-HALF (1/2) INTEREST IN ALL GEOTHERMAL
RESOURCES, EMBRACING: INDIGENOUS STEAM, HOT WATER AND HOT BRINES; STEAM
AND OTHER GASSES, HOT WATER AND HOT BRINES RESULTING FROM WATER, GAS OR
OTHER FLUIDS ARTIFICIALLY INTRODUCED INTO SUBSURFACE FORMATIONS; HEAT OR
OTHER ASSOCIATED ENERGY FOUND BENEATH THE SURFACE OF THE EARTH; AND
BYPRODUCTS OF ANY OF THE FOREGOING SUCH AS MINERALS (EXCLUSIVE OF OIL OR
HYDROCARBON GAS THAT CAN BE SEPARATELY PRODUCED) WHICH ARE FOUND IN
SOLUTION OR ASSOCIATION WITH OR DERIVED FROM ANY OF THE FOREGOING, AS
RESERVED IN THE DEED FROM CHEVRON U.S.A. INC., A CORPORATION, RECORDED
APRIL 1, 1987 IN BOOK 1987 PAGE 42125 OFFICIAL RECORDS AS INSTRUMENT NO.
21698.
ALSO THE SOLE AND EXCLUSIVE RIGHT FROM TIME TO TIME TO BORE OR DRILL AND
MAINTAIN WELLS AND OTHER WORKS INTO AND THROUGH SAID REAL PROPERTY AND
ADJOINING STREETS, ROADS AND HIGHWAYS BELOW A DEPTH OF FIVE HUNDRED
(500') FEET FROM THE SURFACE THEREOF FOR THE PURPOSE OF EXPLORING FOR
AND PRODUCING ENERGY RESOURCES; THE RIGHT TO PRODUCE, INJECT, STORE AND
REMOVE FROM AND THROUGH SAID BORES, WELLS OR WORKS, OIL, GAS, WATER AND
OTHER SUBSTANCES OF WHATEVER NATURE, INCLUDING THE RIGHT TO PERFORM
BELOW SAID DEPTH ANY AND ALL OPERATIONS DEEMED BY GRANTOR NECESSARY OR
CONVENIENT FOR THE EXERCISE OF SUCH RIGHTS, AS RESERVED IN THE DEED FROM
CHEVRON U.S.A. INC., A CORPORATION, RECORDED APRIL 1, 1987 IN BOOK 1987
PAGE 42125 OFFICIAL RECORDS AS INSTRUMENT NO. 21698.
ALL RIGHTS EXCEPTED AND RESERVED TO CHEVRON DO NOT INCLUDE AND DO NOT
EXCEPT OR RESERVE TO CHEVRON ANY RIGHT OF CHEVRON TO USE THE SURFACE OF
SAID PROPERTY OR THE FIRST FIVE HUNDRED (500') FEET BELOW SAID SURFACE
OR TO CONDUCT ANY OPERATIONS THEREON OR THEREIN.
APN: PORTION 133-080-290
PORTION 133-120-300
133-190-030 THRU 100
133-190-130
PARCEL TWO:
THOSE CERTAIN EASEMENTS GRANTED IN ARTICLE 8 OF THE DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS FOR VACA VALLEY BUSINESS PARK,
DATED NOVEMBER 10, 1993, EXECUTED BY CHEVRON LAND AND DEVELOPMENT
COMPANY, A DELAWARE CORPORATION, RECORDED NOVEMBER 12, 1993 AS
INSTRUMENT NO. 1993-00107441 IN THE SOLANO COUNTY RECORDS, AS AMENDED BY
A FIRST AMENDMENT THERETO, RECORDED NOVEMBER 12, 1993 AS INSTRUMENT NO.
1993-00107445 IN THE SOLANO COUNTY RECORDS, AS FURTHER AMENDED BY A
SECOND AMENDMENT THERETO, RECORDED SEPTEMBER 13, 1995 AS INSTRUMENT NO.
1995-00056033 IN THE SOLANO COUNTY RECORDS AND AS FURTHER AMENDED BY A
THIRD AMENDMENT THERETO, RECORDED SEPTEMBER 13, 1995 AS INSTRUMENT NO.
1995-00056034 IN THE SOLANO COUNTY RECORDS
Exhibit B
CORPORATION GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
NAME: Genentech, Inc.
ADDRESS: 460 Point San Bruno Boulevard
ATTN: Corporate Secretary
CITY: South San Francisco
STATE: California
Zip: 94080
MAIL TAX STATEMENTS TO:
NAME: Genentech, Inc.
ADDRESS: 460 Point San Bruno Boulevard
ATTN: Corporate Secretary
CITY: South San Francisco
STATE: California
ZIP: 94080
CORPORATION GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
BNP LEASING CORPORATION, a Delaware corporation, hereby grants to
GENENTECH, INC., a Delaware corporation, all of the land situated in the
County of Solano, State of California, described on Annex A attached
hereto and hereby made a part hereof, together with the improvements
currently located on such land and any easements, rights-of-way,
privileges, appurtenances and other rights pertaining to such land;
provided, however, that this grant is subject to the following, as well
as the Permitted Encumbrances described on Annex B:
1. Real Estate Taxes not yet due and payable;
2. General Special Assessments payable after the date hereof;
3. Liens, claims, easements, covenants, restrictions, encumbrances
and other matters of record;
4. Zoning ordinances and regulations;
5. Public Utility Drainage and Highway easements, whether or not of
record;
6. Rights of parties in possession;
7. Encroachments, variations in area or in measurements, boundary
line disputes, roadways and other matters not of record which would be
disclosed by a survey and inspection of the property conveyed hereby.
BNP LEASING CORPORATION
Date: As of ____________ By:
Its: Vice President
Attest:
Its: Assistant Secretary
(STATE OF TEXAS)
SS
(COUNTY OF DALLAS)
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
Annex A
LEGAL DESCRIPTION
ALL THAT REAL PROPERTY SITUATED IN THE CITY OF VACAVILLE, COUNTY OF
SOLANO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL ONE:
PARCEL "4D", AS SHOWN ON THAT CERTAIN MAP ENTITLED: "PARCEL MAP, BEING A
RESUBDIVISION OF PARCEL 4, AS SHOWN IN BOOK 38 OF PARCEL MAPS, PAGE 35,
PARCELS 14-22, PORTIONS OF AKERLY DRIVE AND BARCAR DRIVE AS SHOWN IN
BOOK 39 OF MAPS, PAGE 74, AND PORTIONS OF LANDS DESCRIBED IN DEED
RECORDED MAY 13, 1982, PAGE 29409, AS INSTRUMENT NO. 17086 IN THE OFFICE
OF THE COUNTY RECORDER OF SOLANO COUNTY, STATE OF CALIFORNIA," FILED
JULY 31, 1995 IN THE OFFICE OF THE COUNTY RECORDER OF SOLANO COUNTY, IN
BOOK 39 OF PARCEL MAPS, PAGE 37.
EXCEPTING THEREFROM AN UNDIVIDED ONE-HALF (1/2) INTEREST IN ALL
MINERALS, MINERAL DEPOSITS, OIL, GAS AND OTHER HYDROCARBON SUBSTANCES OF
EVERY KIND AND CHARACTER BELOW 500 FEET FROM THE SURFACE OF SAID LAND,
BUT WITHOUT, HOWEVER, THE RIGHT OF SURFACE ENTRY, AS EXCEPTED AND
RESERVED IN DEED FROM MARGARET JOSEPHINE SHELLHAMMER TO GERTRUDE M.
EAMES, DATED JUNE 8, 1956, RECORDED JUNE 12, 1956 IN BOOK 833 OF
OFFICIAL RECORDS, PAGE 480 AND IN DEED FROM MARGARET JOSEPHINE
SHELLHAMMER TO BARBARA C. SANTOS DATED DECEMBER 28, 1962, RECORDED
JANUARY 4, 1963 IN BOOK 1178 OF OFFICIAL RECORDS, PAGE 520, AND IN DEED
FROM MARGARET JOSEPHINE SHELLHAMMER TO ROBERTA SANTOS, DATED DECEMBER
28, 1962, RECORDED JANUARY 4, 1963 IN BOOK 1178 OF OFFICIAL RECORDS,
PAGE 529, SOLANO COUNTY RECORDS.
ALSO EXCEPTING AN UNDIVIDED ONE-HALF (1/2) INTEREST IN ALL OIL, GAS AND
OTHER HYDROCARBONS; NON-HYDROCARBON GASSES OR GASEOUS SUBSTANCES; ALL
OTHER MINERALS OF WHATSOEVER NATURE, WITHOUT REGARD TO SIMILARITY TO THE
ABOVE-MENTIONED SUBSTANCES; AND ALL SUBSTANCES THAT MAY BE PRODUCED
THEREWITH FROM SAID REAL PROPERTY AS RESERVED IN THE DEED FROM CHEVRON
U.S.A. INC., A CORPORATION, RECORDED APRIL 1, 1987 IN BOOK 1987 PAGE
42125 OFFICIAL RECORDS AS INSTRUMENT NO. 21698.
ALSO EXCEPTING AN UNDIVIDED ONE-HALF (1/2) INTEREST IN ALL GEOTHERMAL
RESOURCES, EMBRACING: INDIGENOUS STEAM, HOT WATER AND HOT BRINES; STEAM
AND OTHER GASSES, HOT WATER AND HOT BRINES RESULTING FROM WATER, GAS OR
OTHER FLUIDS ARTIFICIALLY INTRODUCED INTO SUBSURFACE FORMATIONS; HEAT OR
OTHER ASSOCIATED ENERGY FOUND BENEATH THE SURFACE OF THE EARTH; AND
BYPRODUCTS OF ANY OF THE FOREGOING SUCH AS MINERALS (EXCLUSIVE OF OIL OR
HYDROCARBON GAS THAT CAN BE SEPARATELY PRODUCED) WHICH ARE FOUND IN
SOLUTION OR ASSOCIATION WITH OR DERIVED FROM ANY OF THE FOREGOING, AS
RESERVED IN THE DEED FROM CHEVRON U.S.A. INC., A CORPORATION, RECORDED
APRIL 1, 1987 IN BOOK 1987 PAGE 42125 OFFICIAL RECORDS AS INSTRUMENT NO.
21698.
ALSO THE SOLE AND EXCLUSIVE RIGHT FROM TIME TO TIME TO BORE OR DRILL AND
MAINTAIN WELLS AND OTHER WORKS INTO AND THROUGH SAID REAL PROPERTY AND
ADJOINING STREETS, ROADS AND HIGHWAYS BELOW A DEPTH OF FIVE HUNDRED
(500') FEET FROM THE SURFACE THEREOF FOR THE PURPOSE OF EXPLORING FOR
AND PRODUCING ENERGY RESOURCES; THE RIGHT TO PRODUCE, INJECT, STORE AND
REMOVE FROM AND THROUGH SAID BORES, WELLS OR WORKS, OIL, GAS, WATER AND
OTHER SUBSTANCES OF WHATEVER NATURE, INCLUDING THE RIGHT TO PERFORM
BELOW SAID DEPTH ANY AND ALL OPERATIONS DEEMED BY GRANTOR NECESSARY OR
CONVENIENT FOR THE EXERCISE OF SUCH RIGHTS, AS RESERVED IN THE DEED FROM
CHEVRON U.S.A. INC., A CORPORATION, RECORDED APRIL 1, 1987 IN BOOK 1987
PAGE 42125 OFFICIAL RECORDS AS INSTRUMENT NO. 21698.
ALL RIGHTS EXCEPTED AND RESERVED TO CHEVRON DO NOT INCLUDE AND DO NOT
EXCEPT OR RESERVE TO CHEVRON ANY RIGHT OF CHEVRON TO USE THE SURFACE OF
SAID PROPERTY OR THE FIRST FIVE HUNDRED (500') FEET BELOW SAID SURFACE
OR TO CONDUCT ANY OPERATIONS THEREON OR THEREIN.
APN: PORTION 133-080-290
PORTION 133-120-300
133-190-030 THRU 100
133-190-130
PARCEL TWO:
THOSE CERTAIN EASEMENTS GRANTED IN ARTICLE 8 OF THE DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS FOR VACA VALLEY BUSINESS PARK,
DATED NOVEMBER 10, 1993, EXECUTED BY CHEVRON LAND AND DEVELOPMENT
COMPANY, A DELAWARE CORPORATION, RECORDED NOVEMBER 12, 1993 AS
INSTRUMENT NO. 1993-00107441 IN THE SOLANO COUNTY RECORDS, AS AMENDED BY
A FIRST AMENDMENT THERETO, RECORDED NOVEMBER 12, 1993 AS INSTRUMENT NO.
1993-00107445 IN THE SOLANO COUNTY RECORDS, AS FURTHER AMENDED BY A
SECOND AMENDMENT THERETO, RECORDED SEPTEMBER 13, 1995 AS INSTRUMENT NO.
1995-00056033 IN THE SOLANO COUNTY RECORDS AND AS FURTHER AMENDED BY A
THIRD AMENDMENT THERETO, RECORDED SEPTEMBER 13, 1995 AS INSTRUMENT NO.
1995-00056034 IN THE SOLANO COUNTY RECORDS
Annex B
Permitted Encumbrances
This conveyance is subject to the following matters to the extent
the same are still valid and in force:
[INSERT LIST OF "PERMITTED ENCUMBRANCES" AS DEFINED IN THE LEASE]
1. Amended and Restated Lease Agreement dated as of December 8, 1995
by and between BNP Leasing Corporation, as lessor, and Genentech, Inc.,
as lessee.
[IF THE CONVEYANCE IS TO AN APPLICABLE PURCHASER:
2. Any encumbrances claimed by, through or under Genentech, Inc.]
[ADD A LIST OF ANY OTHER KNOWN ENCUMBRANCES FOR WHICH BNP IS NOT
RESPONSIBLE UNDER PARAGRAPH 10(A) OF THE LEASE.
EXHIBIT C
PRELIMINARY CHANGE OF OWNERSHIP REPORT
THIS REPORT IS NOT A PUBLIC DOCUMENT
(To be completed by transferee (buyer) prior to transfer of the subject
property in accordance with Section 480.3 of the Revenue and Taxation
Code.
THIS SPACE FOR RECORDER'S US
SELLER/TRANSFEROR:
SELLER RECORDING DATE: DOCUMENT NO.
BUYER/TRANSFEREE:
ASSESSOR'S IDENTIFICATION NUMBER(S)
LA ------ Page Parcel
PROPERTY ADDRESS OR LOCATION:
No Street
City State Zip Code
MAIL TAX INFORMATION TO:
NAME:
ADDRESS:
Street No City State Zip Code
FOR ASSESSOR'S USE ONLY
Cluster
OC1
OC2
DT
INT
RC
SP$
DTT $
# Pcl.
A Preliminary Change in Ownership Report must be filed with each
conveyance in the County Recorder's office for the county where the
property is located; this particular form may be used in all 58 counties
of California
NOTICE: A lien for property taxes applies to your property on March 1
of each year for the taxes owing in the following fiscal year, July 1
through June 30. One-half of those taxes is due November 1 and one-half
is due February 1. The first installment becomes delinquent on December
10 and the second installment becomes delinquent on April 10. One tax
bill is mailed before November 1 to the owner of record. IF THIS
TRANSFER OCCURS AFTER MARCH 1 AND ON OR BEFORE DECEMBER 31, YOU MAY BE
RESPONSIBLE FOR THE SECOND INSTALLMENT OF TAXES ON FEBRUARY 1.
The property which you acquired may be subject to a supplemental tax
assessment in an amount to be determined by the Los Angeles County
Assessor. For further information on your supplemental roll obligation,
please call the Los Angeles County Assessor at (713) 974-3211
PART I: TRANSFER INFORMATIONPlease answer all questions.
YES NO
___ ___ A. Is this transfer solely between husband and wife
(Addition of a spouse, death of a spouse, divorce settlement, etc.)?
___ ___ B. Is this transaction only a correction of the name(s) of
the person(s) holding title to the property (For example, a name change
upon marriage)?
___ ___ C. Is this document recorded to create, terminate, or
reconvey a lender's interest in the property?
___ ___ D. Is this transaction recorded only to create, terminate,
or reconvey a security interest (e.g., cosigner)?
___ ___ E. Is this document recorded to substitute a trustee under
a deed of trust, mortgage, or other similar document?
___ ___ F. Did this transfer result in the creation of a joint
tenancy in which the seller (transferor) remains as one of the joint
tenants?
___ ___ G. Does this transfer return property to the person who
created the joint tenancy (original transferor)?
___ ___ H. Is this transfer of property:
1. to a trust for the benefit of the grantor, or
grantor's spouse?
2. to a trust revocable by the transferor?
3. to a trust from which the property reverts to the
grantor within 12 years?
___ ___ I. If this property is subject to a lease, is the remaining
lease term 35 years or more including written options?
___ ___ J. Is this a transfer from parents to children or from
children to parents?
___ ___ K. Is this transaction to replace a principal residence by
a person 55 years of age or older?
___ ___ L. Is this transaction to replace a principal residence by
a person who is severely disabled as defined by Revenue and Taxation
Code Section 69.5?
If you checked yes to J, K or L, an applicable claim form must be filed
with the County Assessor.
Please provide any other information that would help the Assessor to
understand the nature of the transfer.
IF YOU HAVE ANSWERED "YES" TO ANY OF THE ABOVE QUESTIONS EXCEPT J, K, OR
L, PLEASE SIGN AND DATE.
OTHERWISE COMPLETE BALANCE OF THE FORM
PART II: OTHER TRANSFER INFORMATION
A. Date of transfer if other than recording date.
B. Type of transfer. Please check appropriate box.
__ Purchase __ Foreclosure __ Gift
__ Trade or Exchange __Merger, Stock or Partnership Acquisition
__ Contract of Sale __ Date of Contract
__ Inheritance __ Date of Contract
__ Other: Please explain:
__ Creation of a lease: __ Assignment of a lease;
__ Termination of a lease
Date lease began
Original term in years (including written options)
Remaining term in years (including written options).
C. Was only a partial interest in the property transferred?
__ Yes __ No
If yes, indicate the percentage transferred
Please answer, to the best of your knowledge, all applicable questions,
sign and date. If a question does not apply, indicate with "N/A".
PART III: PURCHASE PRICE & TERMS OF SALE
A. CASH DOWN PAYMENT OR Value of Trade or Exchange (excluding closing
cost)
B. FIRST DEED OF TRUST at % interest for years.
Pymts./Mo. = $ (Prin. and Int. only)
__ FHA __ Fixed Rate __ New Loan
__ Conventional __ Variable Rate
__ Assumed Existing Loan Balance
__ VA __ All Inclusive D.T. ($ Wrapped)
__ Bank or Savings & Loan
__ Cal-Vet __ Loan Carried by Seller __ Finance Company
Balloon Payment __ Yes __ No
Due Date Amount $
C. SECOND DEED OF TRUST @ % interest for years.
Pymts./Mo. = $ (Prin. & Int. only)
__ Bank or Savings & Loan __ Fixed Rate __ New Loan
__ Loan Carried by Seller __ Variable Rate
__ Assumed Existing Loan Balance
__ Balloon Payment __ Yes __ No
Due Date Amount $
D. OTHER FINANCING: Is other financing involved not covered in (b) or
(c) above? __ Yes __ No
Type @ % interest for years.
Pymts./Mo. = $ (Prin. & Int. only)
__ Bank or Savings & Loan __ Fixed Rate __ New Loan
__ Loan Carried by Seller __ Variable Rate
__ Assumed Existing Loan Balance
__ Balloon Payment __ Yes __ No
Due Date Amount $
E. IMPROVEMENT BOND __ Yes __ No
Outstanding Balance
Amount $
Amount $
Amount $
Amount $
Amount $
F.TOTAL PURCHASE PRICE: (or acquisition price, if traded or exchanged,
include real estate commission if paid.)
Total items A through E
G.PROPERTY PURCHASED:__ Through a broker;__ Direct form seller;__ Other
(Explain)
If purchased through a broker, provide broker's name and phone no.:
Please explain any special terms or financing and many other
information that would help the Assessor understand the purchase price
and terms of sale.
PART IV: PROPERTY INFORMATION
A. IS PERSONAL PROPERTY INCLUDED IN THE PURCHASE PRICE
(other than a mobilehome subject to local property tax)?
__ Yes __ No
If yes, enter the value of the personal property included in the
purchase price $ (Attach itemized list of personal property)
B. IS THIS PROPERTY INTENDED AS YOUR PRINCIPAL RESIDENCE?
__ Yes __ No
If yes, enter date of occupancy / /, 19
or intended occupancy / , 19
Month Day
Month Day
C. TYPE OF PROPERTY TRANSFERRED:
__ Single-Family residence __ Agricultural
__ Timeshare __ Multiple-Family residence (no. of units: )
__ Coop/Own-your-own __ Mobilehome
__ Commercial/Industrial __ Condominium __ Unimproved lot
__ Other (Description: )
D. DOES THE PROPERTY PRODUCE INCOME? __ Yes __ No
E. IF THE ANSWER TO QUESTION D IS YES, IS THE INCOME FROM:
__ Lease/Rent __ Contract __ Mineral rights
__ Other - explain
F. WHAT WAS THE CONDITION OF THE PROPERTY AT THE TIME OF SALE?
__ Good __ Average __ Fair __ Poor
Enter here, or on an attached sheet, any other information that
would assist the Assessor in determining value of the property such as
the physical condition of the property, restrictions, etc.
I certify that the foregoing is true, correct and complete to the
best of my knowledge and belief.
Signed
Date
New Owner/Corporate Officer)
Please Print Name of New Owner/Corporate Officer
Phone No. where you are available from 8:00 a.m. - 5:00 p.m.
(Note: The Assessor may contact you for further information)
If a document evidencing a change of ownership is presented to the
recorder for recordation without the concurrent filing of a PRELIMINARY
CHANGE OF OWNERSHIP REPORT, the recorder may charge an additional
recording fee of twenty dollars ($20)
Exhibit D
BILL OF SALE, ASSIGNMENT OF CONTRACT
RIGHTS AND INTANGIBLE ASSETS
Reference is made to: (1) that certain Property Purchase Agreement
dated as of May 24, 1995, as amended by the Amendments thereto dated as
of June 30, 1995, July 31, 1995 and September 5, 1995 (the "Contract"),
between Chevron Land and Development Company, a Delaware corporation, as
seller, and BNP LEASING CORPORATION ("Assignor") as the buyer through an
assignment from the original buyer named therein, Genentech, Inc; (2)
that certain Amended and Restated Purchase Agreement between Assignor
and Genentech, Inc., dated as of December 8, 1995 (the "Purchase
Agreement"); and (3) that certain Amended and Restated Lease Agreement
between Assignor, as landlord, and Genentech, Inc., as tenant, dated as
of December 8, 1995 (the "Lease").
As contemplated by the Purchase Agreement, Assignor hereby sells,
transfers and assigns unto [GENENTECH 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) any warranties, guaranties, indemnities and claims Assignor
may have under the Contract or under any document delivered by the
seller thereunder to the extent related to the real property described
in Annex A attached hereto (the "Property"), including specifically,
without limitation, warranties, guaranties, indemnities and claims for
workmanship, materials and performance;
(b) any pending or future award made because of any condemnation
affecting the Property or because of any conveyance to be made in lieu
thereof, and any unpaid award for damage to the Property and any unpaid
proceeds of insurance or claim or cause of action for damage, loss or
injury to the Property; and
(c) all other property included within the definition of
"Property" as set forth in the Purchase Agreement, including but not
limited to any of the following transferred to Assignor by the seller
under the Contract, transferred to Assignor by the tenant pursuant to
subparagraph 9(ae) of the Lease or otherwise acquired by Assignor, at
the time of the closing under the Contract or thereafter, by reason of
Assignor's status as the owner of the Property: (1) any goods,
equipment, furnishings, furniture, chattels and tangible personal
property of whatever nature that are located on the Property and all
renewals or replacements of or substitutions for any of the foregoing;
(ii) the rights of Assignor, existing at the time of the closing under
the Contract or thereafter arising, under Permitted Encumbrances as
defined under the Lease (including the Development Contracts, as defined
in the Lease); and (iii) any other general intangibles, permits,
licenses, franchises, certificates, and other rights and privileges
related to the Property that Assignee would have acquired if Assignee
had itself acquired the Property as the purchaser under the Contract.
Provided, however, excluded from this conveyance and reserved to
Assignor are the any rights or privileges of Assignor under (1) the
Environmental Indemnity Agreement, as defined in the Purchase Agreement,
(2) the Lease, to the extent rights under the Lease relate to the period
ending on the date hereof, whether such rights are presently known or
unknown, including rights of the Assignor to be indemnified against
claims of third parties as provided in the Lease which may not presently
be known, and including rights to recover any accrued unpaid rent under
the Lease which may be outstanding as of the date hereof, but not
including any of the rights assigned to Assignor pursuant to
subparagraph 9(ae) of the Lease (3) agreements between Assignor and
"Landlord's Parent" or any "Participant," both as defined in the Lease,
or any modification or extension thereof, and (4) any other instrument
being delivered to Assignor contemporaneously herewith pursuant to the
Purchase Agreement.
Assignor does for itself and its heirs, executors and
administrators, 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 Assignor, but not
otherwise; excluding, however, any claim or demand arising by, through
or under [GENENTECH].
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.
Executed: , 199__.
ASSIGNOR:
BNP LEASING CORPORATION
a Delaware corporation
By:
Its:
ASSIGNEE:
[GENENTECH, OR THE APPLICABLE PURCHASER], a _________ corporation
By:
Its:
Annex A
LEGAL DESCRIPTION
ALL THAT REAL PROPERTY SITUATED IN THE CITY OF VACAVILLE, COUNTY OF
SOLANO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL ONE:
PARCEL "4D", AS SHOWN ON THAT CERTAIN MAP ENTITLED: "PARCEL MAP, BEING A
RESUBDIVISION OF PARCEL 4, AS SHOWN IN BOOK 38 OF PARCEL MAPS, PAGE 35,
PARCELS 14-22, PORTIONS OF AKERLY DRIVE AND BARCAR DRIVE AS SHOWN IN
BOOK 39 OF MAPS, PAGE 74, AND PORTIONS OF LANDS DESCRIBED IN DEED
RECORDED MAY 13, 1982, PAGE 29409, AS INSTRUMENT NO. 17086 IN THE OFFICE
OF THE COUNTY RECORDER OF SOLANO COUNTY, STATE OF CALIFORNIA," FILED
JULY 31, 1995 IN THE OFFICE OF THE COUNTY RECORDER OF SOLANO COUNTY, IN
BOOK 39 OF PARCEL MAPS, PAGE 37.
EXCEPTING THEREFROM AN UNDIVIDED ONE-HALF (1/2) INTEREST IN ALL
MINERALS, MINERAL DEPOSITS, OIL, GAS AND OTHER HYDROCARBON SUBSTANCES OF
EVERY KIND AND CHARACTER BELOW 500 FEET FROM THE SURFACE OF SAID LAND,
BUT WITHOUT, HOWEVER, THE RIGHT OF SURFACE ENTRY, AS EXCEPTED AND
RESERVED IN DEED FROM MARGARET JOSEPHINE SHELLHAMMER TO GERTRUDE M.
EAMES, DATED JUNE 8, 1956, RECORDED JUNE 12, 1956 IN BOOK 833 OF
OFFICIAL RECORDS, PAGE 480 AND IN DEED FROM MARGARET JOSEPHINE
SHELLHAMMER TO BARBARA C. SANTOS DATED DECEMBER 28, 1962, RECORDED
JANUARY 4, 1963 IN BOOK 1178 OF OFFICIAL RECORDS, PAGE 520, AND IN DEED
FROM MARGARET JOSEPHINE SHELLHAMMER TO ROBERTA SANTOS, DATED DECEMBER
28, 1962, RECORDED JANUARY 4, 1963 IN BOOK 1178 OF OFFICIAL RECORDS,
PAGE 529, SOLANO COUNTY RECORDS.
ALSO EXCEPTING AN UNDIVIDED ONE-HALF (1/2) INTEREST IN ALL OIL, GAS AND
OTHER HYDROCARBONS; NON-HYDROCARBON GASSES OR GASEOUS SUBSTANCES; ALL
OTHER MINERALS OF WHATSOEVER NATURE, WITHOUT REGARD TO SIMILARITY TO THE
ABOVE-MENTIONED SUBSTANCES; AND ALL SUBSTANCES THAT MAY BE PRODUCED
THEREWITH FROM SAID REAL PROPERTY AS RESERVED IN THE DEED FROM CHEVRON
U.S.A. INC., A CORPORATION, RECORDED APRIL 1, 1987 IN BOOK 1987 PAGE
42125 OFFICIAL RECORDS AS INSTRUMENT NO. 21698.
ALSO EXCEPTING AN UNDIVIDED ONE-HALF (1/2) INTEREST IN ALL GEOTHERMAL
RESOURCES, EMBRACING: INDIGENOUS STEAM, HOT WATER AND HOT BRINES; STEAM
AND OTHER GASSES, HOT WATER AND HOT BRINES RESULTING FROM WATER, GAS OR
OTHER FLUIDS ARTIFICIALLY INTRODUCED INTO SUBSURFACE FORMATIONS; HEAT OR
OTHER ASSOCIATED ENERGY FOUND BENEATH THE SURFACE OF THE EARTH; AND
BYPRODUCTS OF ANY OF THE FOREGOING SUCH AS MINERALS (EXCLUSIVE OF OIL OR
HYDROCARBON GAS THAT CAN BE SEPARATELY PRODUCED) WHICH ARE FOUND IN
SOLUTION OR ASSOCIATION WITH OR DERIVED FROM ANY OF THE FOREGOING, AS
RESERVED IN THE DEED FROM CHEVRON U.S.A. INC., A CORPORATION, RECORDED
APRIL 1, 1987 IN BOOK 1987 PAGE 42125 OFFICIAL RECORDS AS INSTRUMENT NO.
21698.
ALSO THE SOLE AND EXCLUSIVE RIGHT FROM TIME TO TIME TO BORE OR DRILL AND
MAINTAIN WELLS AND OTHER WORKS INTO AND THROUGH SAID REAL PROPERTY AND
ADJOINING STREETS, ROADS AND HIGHWAYS BELOW A DEPTH OF FIVE HUNDRED
(500') FEET FROM THE SURFACE THEREOF FOR THE PURPOSE OF EXPLORING FOR
AND PRODUCING ENERGY RESOURCES; THE RIGHT TO PRODUCE, INJECT, STORE AND
REMOVE FROM AND THROUGH SAID BORES, WELLS OR WORKS, OIL, GAS, WATER AND
OTHER SUBSTANCES OF WHATEVER NATURE, INCLUDING THE RIGHT TO PERFORM
BELOW SAID DEPTH ANY AND ALL OPERATIONS DEEMED BY GRANTOR NECESSARY OR
CONVENIENT FOR THE EXERCISE OF SUCH RIGHTS, AS RESERVED IN THE DEED FROM
CHEVRON U.S.A. INC., A CORPORATION, RECORDED APRIL 1, 1987 IN BOOK 1987
PAGE 42125 OFFICIAL RECORDS AS INSTRUMENT NO. 21698.
ALL RIGHTS EXCEPTED AND RESERVED TO CHEVRON DO NOT INCLUDE AND DO NOT
EXCEPT OR RESERVE TO CHEVRON ANY RIGHT OF CHEVRON TO USE THE SURFACE OF
SAID PROPERTY OR THE FIRST FIVE HUNDRED (500') FEET BELOW SAID SURFACE
OR TO CONDUCT ANY OPERATIONS THEREON OR THEREIN.
APN: PORTION 133-080-290
PORTION 133-120-300
133-190-030 THRU 100
133-190-130
PARCEL TWO:
THOSE CERTAIN EASEMENTS GRANTED IN ARTICLE 8 OF THE DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS FOR VACA VALLEY BUSINESS PARK,
DATED NOVEMBER 10, 1993, EXECUTED BY CHEVRON LAND AND DEVELOPMENT
COMPANY, A DELAWARE CORPORATION, RECORDED NOVEMBER 12, 1993 AS
INSTRUMENT NO. 1993-00107441 IN THE SOLANO COUNTY RECORDS, AS AMENDED BY
A FIRST AMENDMENT THERETO, RECORDED NOVEMBER 12, 1993 AS INSTRUMENT NO.
1993-00107445 IN THE SOLANO COUNTY RECORDS, AS FURTHER AMENDED BY A
SECOND AMENDMENT THERETO, RECORDED SEPTEMBER 13, 1995 AS INSTRUMENT NO.
1995-00056033 IN THE SOLANO COUNTY RECORDS AND AS FURTHER AMENDED BY A
THIRD AMENDMENT THERETO, RECORDED SEPTEMBER 13, 1995 AS INSTRUMENT NO.
1995-00056034 IN THE SOLANO COUNTY RECORDS
Exhibit E
ACKNOWLEDGMENT OF DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
THIS ACKNOWLEDGMENT OF DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
(this "Certificate") is made as of ___________________, 199___, by
[Genentech or the Applicable Purchaser, as the case may be], a
___________________ ("Grantee").
Contemporaneously with the execution of this Certificate, BNP
Leasing Corporation, a Delaware corporation ("BNP"), is executing and
delivering to Grantee (1) a Corporation Grant Deed and (2) a Bill of
Sale, Assignment of Contract Rights and Intangible Assets (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 BNP 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 BNP 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 wilful misconduct, Active
Negligence or gross negligence of BNP, its agents or employees. As used
in the preceding sentence, "Active Negligence" of a party means, and is
limited to, the negligent conduct of activities actually on or about the
Property by that party in a manner that proximately causes actual bodily
injury or property damage to be incurred. "Active negligence" shall not
include (1) any negligent failure of BNP to act when the duty to act
would not have been imposed but for BNP's status as owner of the Subject
Property or as a party to the transactions pursuant to which BNP is
delivering this instrument (the "Applicable Transactions"), (2) any
negligent failure of any other party to act when the duty to act would
not have been imposed but for such party's contractual or other
relationship to BNP or participation or facilitation in any manner,
directly or indirectly, of the Applicable Transactions, or (3) the
exercise in a lawful manner by BNP (or any party lawfully claiming
through or under BNP) of any remedy provided in connection with the
Applicable Transactions.
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 BNP is entitled to rely and is relying
on this Certificate.
EXECUTED as of ________________, 199___.
By:
Name:
Title:
Exhibit F
DOCUMENTARY TRANSFER TAX REQUEST
ACCOUNTABLE FORM #
DATE:
To: Solano County Recorder
Subject: REQUEST THAT DOCUMENTARY TRANSFER TAX DECLARATION BE MADE IN
ACCORDANCE WITH REVENUE CODE 11932.
Re: Instrument Title: Corporation Grant Deed
Name of Party Conveying Title: BNP Leasing Corporation
The Documentary Transfer Tax is declared to be in the amount of
$_______________ for the referenced instrument and is:
___ Computed on full value of property conveyed.
___ Computed on full value less liens/encumbrances remaining
thereon at time of sale.
This separate declaration is made in accordance with
_________________________________. It is requested that the amount paid
be indicated on the face of the document after the permanent copy has
been made.
Sincerely,
Individual (or his agent) who made,
signed or issued instrument
PART I
RECORDING REFERENCE DATA:
Serial # Date Recorded
SEPARATE PAPER AFFIXED TO INSTRUMENT:
"Tax paid" indicated on the face of instrument and the separate
request (DRA 3-A) was affixed for Recorder by:
Date
Documentary Transfer Tax Collector
Witnessed by: Date
Mail Clerk
(Note: Prepare photo for Recorder file.)
PART II
ACCOUNTABLE FORM #
REFERENCE DATA: Title:
Serial: Date:
INSTRUCTIONS:
1. This slip must accompany document.
2. Mail Clerk hand carry document to Tax Collector to indicate
the amount of tax paid
Exhibit G
SECRETARY'S CERTIFICATE
The undersigned, 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 Required 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,
as evidenced by the signatures of all directors of the Corporation
affixed thereto. 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 , 199 .
[signature]
CORPORATE RESOLUTIONS OF
BNP LEASING CORPORATION
WHEREAS, pursuant to that certain Amended and Restated Purchase
Agreement (herein called the "Purchase Agreement") dated as of December
8, 1995, by and between BNP Leasing Corporation (the "Corporation") and
[GENENTECH 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 __________, 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.
IN WITNESS WHEREOF, we, being all the directors of the Corporation,
have hereunto signed our names as of the dates indicated by our
signatures.
[signature and date]
[signature and date]
[signature and date]
Exhibit H
BNP LEASING CORPORATION
717 N. HARWOOD
SUITE 2630
DALLAS, TEXAS 75201
, 199
[Title Insurance Company]
_________________
_________________
_________________
Re: Recording of Grant Deed to [Genentech or the Applicable
Purchaser] ("Purchaser")
Ladies and Gentlemen:
BNP Leasing Corporation has executed and delivered to Purchaser a
Grant Deed in the form attached to this letter. You are hereby
authorized and directed to record the Grant Deed at the request of
Purchaser.
Sincerely,
Exhibit I
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 [____________________ or the Applicable Purchaser, as the
case may be] (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 ______________
__________________________________________.
[Note: BNP MUST INCLUDE EITHER ONE, BUT ONLY ONE, OF THE FOLLOWING
REPRESENTATIONS IN THE FIRPTA STATEMENT, BUT IF THE ONE INCLUDED STATES
THAT BNP IS DEEMED EXEMPT FROM CALIFORNIA INCOME AND FRANCHISE TAX, THEN
BNP MUST ALSO ATTACH A WITHHOLDING CERTIFICATE FROM THE CALIFORNIA
FRANCHISE TAX BOARD EVIDENCING THE SAME:
4. The Seller is qualified to do business in California.
OR
4. The Seller is deemed to be exempt from the withholding
requirement of California Revenue and Taxation Code Section 26131(e), as
evidenced by the withholding certificate from the California Franchise
Tax Board which is attached.]
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. The Seller hereby agrees to indemnify and hold the Transferee
harmless from and against any and all obligations, liabilities, claims,
losses, actions, causes of action, demands, rights, damages, costs, and
expenses (including but not limited to court costs and attorneys' fees)
incurred by the Transferee as a result of any false misleading statement
contained herein.
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: ___________, 199___.
By:
Name:
Title: