$61,500,000
PURCHASE AGREEMENT
BETWEEN
BNP LEASING CORPORATION,
("BNPLC")
AND
INFORMIX CORPORATION,
("Informix")
EFFECTIVE AS OF JANUARY 6, 1997
(Freedom Circle Property)
PURSUANT TO AND AS MORE PARTICULARLY PROVIDED IN PARAGRAPH 17 OF THIS
AGREEMENT, THE LEASE REFERENCED HEREIN AND THIS PURCHASE AGREEMENT
ARE TO CONSTITUTE, FOR INCOME TAX PURPOSES ONLY, A FINANCING
ARRANGEMENT OR CONDITIONAL SALE. AS PROVIDED IN PARAGRAPH 17 OF THIS
AGREEMENT, BNPLC AND INFORMIX EXPECT THAT INFORMIX (AND NOT BNPLC)
SHALL BE TREATED AS THE TRUE OWNER OF THE PROPERTY FOR INCOME TAX
PURPOSES, THEREBY ENTITLING INFORMIX (AND NOT BNPLC) TO TAKE
DEPRECIATION DEDUCTIONS AND OTHER TAX BENEFITS AVAILABLE TO THE OWNER.
TABLE OF CONTENTS
Page
1. Definitions 1
"Applicable Purchaser" 1
"Deposit Taker Losses" 1
"Designated Sale Date" 1
"Direct Payments to Participants" 2
"Fair Market Value" 2
"Purchase Price" 2
"Remarketing Notice" 2
"Required Documents" 2
"Shortage Amount" 2
2. Informix's Options and Obligations on the Designated Sale Date 3
(a) Choices 3
(b) Election by Informix 3
(c) Termination of Informix's Option To Purchase 4
(d) Payment to BNPLC 4
(e) Effect of Options on Subsequent Title Encumbrances 4
3. Terms of Conveyance Upon Purchase 5
4. Survival of Informix's Obligations 5
(a) Status of this Agreement 5
(b) Remedies Under the Lease and the Environmental Indemnity 6
5. Remedies Cumulative 6
6. No Implied Waiver 6
7. Attorneys' Fees and Legal Expenses 6
8. Estoppel Certificate 7
9. Notices 7
10. Severability 9
11. Entire Agreement 9
12. Paragraph Headings 9
13. Gender and Number 9
14. GOVERNING LAW 9
15. Successors and Assigns 9
16. WAIVER OF JURY TRIAL 9
17. Income Tax Reporting 10
18. Security for Informix's Obligations; Return of Collateral and
Escrowed Proceeds 11
19. Security for BNPLC's Obligations 11
20. Not a Partnership, Etc 11
Exhibits and Schedules
Exhibit A Legal Description
Exhibit B Grant Deed
Exhibit C Preliminary Change of Ownership Form
Exhibit D Bill of Sale and Assignment
Exhibit E Acknowledgement and Disclaimer
Exhibit F Documentary Transfer Tax Request
Exhibit G Secretary's Certificate
Exhibit H Instruction Letter to Title Insurer
Exhibit I Certificate Concerning Tax Withholding
Exhibit J Indemnity for Prohibited Encumbrances
PURCHASE AGREEMENT
This PURCHASE AGREEMENT (this "Agreement") is made as of January 6,
1997, by INFORMIX CORPORATION, a Delaware corporation ("Informix") and
BNP LEASING CORPORATION, a Delaware corporation ("BNPLC").
R E C I T A L S
A. BNPLC is acquiring the land described in Exhibit A attached
hereto and the improvements and fixtures located thereon, if any, and is
leasing the same to Informix pursuant to that certain Lease Agreement
(as from time to time supplemented, amended or restated, the "Lease")
between Informix and BNPLC 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. BNPLC is also concurrently herewith receiving a separate
environmental indemnity from Informix pursuant to an Environmental
Indemnity Agreement (as from time to time supplemented, amended or
restated, the "Environmental Indemnity") between Informix and BNPLC
dated as of the date hereof.
C. As a condition to BNPLC's acquisition of any of the land
described in Exhibit A, BNPLC requires the agreements of Informix, on
and subject to the terms and conditions set out herein, to protect BNPLC
against certain losses that BNPLC may suffer if (1) the value of the
Property covered from time to time under the Lease is or becomes less
than BNPLC's investment in such Property.
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 "BNPLC", "Environmental
Indemnity", "Informix", "Property" and "Lease" 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:
"Applicable Purchaser" means any third party designated by Informix to
purchase the interest of BNPLC in the Property as provided in Paragraph
2(a)(ii) below.
"Deposit Taker Losses" shall have the meaning assigned to it in the
Pledge Agreement.
"Designated Sale Date" means the earlier of:
(1) December 31, 1998.
(2) the date specified as the effective date of termination of the Lease
in any notice to BNPLC given by Informix pursuant to Paragraph 2 of the
Lease;
(3) any Business Day designated by BNPLC in a written notice given by
BNPLC to Informix when an Event of Default by Informix is continuing,
provided the notice is given by BNPLC at least thirty (30) days before
the Business Day so designated; or
(4) any Business Day designated by Informix in a written irrevocable and
unconditional notice given by Informix to BNPLC pursuant to the last
sentence of subparagraph 13(a) of the Lease (which concerns the right of
Informix to cure certain Events of Default by delivering such a notice);
provided, the Business Day so designated by Informix must be no earlier
than sixty (60) days after the date of such notice, unless an Event of
Default has occurred and is continuing on the date of such notice, in
which case the Business Date so designated must be no earlier than
fifteen (15) days after the date of such notice and no later than thirty
(30) days after the date of such notice.
If BNPLC sends a notice to Informix pursuant to the preceding clause (3)
properly designating a Designated Sale Date, and Informix sends a notice
to BNPLC pursuant to the preceding clause (2) or clause (4) properly
designating a different Designated Sale Date, the earlier of the two
dates so designated shall be the "Designated Sale Date" hereunder
regardless of which notice was first sent.
"Direct Payments to Participants" means the amounts paid or required to
be paid directly to Participants on the Designated Sale Date as provided
in Section 6.2 of the Pledge Agreement at the direction of and for
Informix by the collateral agent appointed pursuant to the Pledge
Agreement from all or any part of the Collateral described therein.
"Fair Market Value" means the fair market value of the Property on or
about the Designated Sale Date (calculated under the assumptions,
whether or not then accurate, that Informix has maintained the Property
in compliance with the Lease and all Applicable Laws [including
Environmental Laws]; that Informix has completed the construction of any
Improvements which was commenced prior to the Designated Sale Date; that
all such Improvements are self-sufficient in the sense that any
easements or offsite facilities needed for their use will be available
at no additional cost to the owner of the Improvements; that Informix
has repaired and restored the Property after any damage following fire
or other casualty to the extent required by the Lease; that Informix has
restored the remainder of the Property after any partial taking by
eminent domain to the extent required by the Lease; that Informix 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; that no conditions or circumstances on or
about the Property [such as the presence of an endangered species] is
discovered that will impede the use or any development of the Property
permitted by the Lease; that any use or development of the Property as
permitted by the Lease will not be hindered or delayed because of the
limited availability of utilities or water; that without undue
cost or delay any purchaser paying fair market value for the Property
can obtain any necessary permits or licenses needed to use the Property
for the purposes permitted by the Lease; and that Informix has cured any
title defects affecting the Property, 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 BNPLC, which appraiser must have five (5) years or more
experience appraising similar properties in northern California.
"Purchase Price" means an amount equal to Stipulated Loss Value
outstanding on the Designated Sale 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 BNPLC hereunder or in connection with
collecting sales proceeds due hereunder, less the aggregate amounts (if
any) of Direct Payments to Participants and Deposit Taker Losses.
"Remarketing Notice" shall have the meaning assigned to it in Paragraph
2(b)(1) below.
"Required Documents" means the grant deed and other documents that BNPLC
must tender pursuant to Paragraph 3 below.
"Shortage Amount" means any amount payable to BNPLC by Informix, rather
than by the Applicable Purchaser, pursuant to clause 2(a)(ii) below.
2. Informix's Options and Obligations on the Designated Sale Date.
(a) Choices. On the Designated Sale Date, regardless of whether an
Event of Default shall have occurred and be continuing, Informix shall
have the right and the obligation to either:
(i) purchase BNPLC's interest in the Property and in Escrowed Proceeds,
if any, for a net cash price equal to the Purchase Price; or
(ii) cause the Applicable Purchaser to purchase BNPLC's interest in the
Property and in Escrowed Proceeds, if any, for a net cash price set by
Informix, but in no event shall Informix set a net cash price below
the lesser of (a) the Fair Market Value of the Property, (b) fifteen
percent (15%) of Stipulated Loss Value outstanding immediately prior to
the purchase or (c) the Purchase Price. If, however, pursuant to the
preceding sentence Informix sets a net cash price below fifteen percent
(15%) of Stipulated Loss Value and below the Purchase Price, BNPLC may
elect to keep the Property and any Escrowed Proceeds rather than sell
to the Applicable Purchaser, in which case Informix shall pay BNPLC an
amount equal to (A) eighty-five percent (85%) of Stipulated Loss Value,
less (B) the sum of (x) any Escrowed Proceeds then held and to be
retained by BNPLC, (y) any Direct Payments to Participants and (z) any
Deposit Taker Losses. Unless BNPLC elects to keep the Property pursuant
to the preceding sentence, Informix must make a supplemental
payment to BNPLC on the Designated Sale Date equal to the excess (if
any) of the Purchase Price over the net cash price actually paid to
BNPLC on the Designated Sale Date by the Applicable Purchaser for
BNPLC'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 Informix 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
(1) eighty-five percent (85%) of Stipulated Loss Value on the Designated
Sale Date, less (2) any Direct Payments to Participants and any Deposit
Taker Losses. Any supplemental payment payable to BNPLC by Informix,
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 BNPLC exceeds the Purchase
Price and all other sums that are then due from Informix to BNPLC,
Informix shall be entitled to such excess.
If any amount payable to BNPLC pursuant to this subparagraph 2(a) is not
actually paid to BNPLC on the Designated Sale Date, Informix shall pay
interest on the past due amount computed at the Default Rate from the
Designated Sale Date. However, Tenant shall be entitled to a reduction
of the interest required by the preceding sentence equal to the Base
Rent, if any, paid by Tenant as provided in Paragraph 17 of the Lease
for any holdover period after the Designated Sale Date.
(b) Election by Informix. Informix 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:
(i) To give BNPLC the opportunity to have the Fair Market Value
determined by an appraiser as provided in the definition of Fair Market
Value above before the Designated Sale Date, Informix must, unless
Informix concedes that Fair Market Value will not be less than fifteen
percent (15%) of Stipulated Loss Value on the Designated Sale Date,
provide BNPLC with a Remarketing Notice. "Remarketing Notice" means a
notice given by Informix to BNPLC (and to each of the Participants) no
earlier than one hundred eighty (180) days before the Designated Sale
Date and no later than ninety (90) days before the Designated Sale Date,
specifying that Informix does not concede that the Fair Market Value is
equal to or greater than fifteen percent (15%) of the Stipulated Loss
Value. A Remarketing Notice will be required only if Informix does not
concede that Fair Market Value will equal or exceed fifteen percent
(15%) of Stipulated Loss Value on the Designated Sale Date. But if for
any reason (including but not limited to any acceleration of the
Designated Sale Date pursuant to clauses (2), (3) or (4) of the
definition of Designated Sale Date above) Informix 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 fifteen percent (15%) of
Stipulated Loss Value on the Designated Sale Date.
(ii) To give BNPLC the opportunity to prepare the Required Documents
before the Designated Sale Date, Informix must, if it is to elect to
satisfy the obligations set forth in clause (ii) of Paragraph 2(a),
irrevocably specify an Applicable Purchaser in notice to BNPLC given at
least seven (7) days prior to the Designated Sale Date. If for any
reason Informix fails to so specify an Applicable Purchaser, Informix
shall be deemed to have irrevocably elected to satisfy the obligations
set forth in clause (i) of Paragraph 2(a).
(c) Termination of Informix's Option To Purchase. Without limiting
BNPLC's right to require Informix to satisfy the obligations imposed by
Paragraph 2(a), Informix shall have no further option hereunder to
purchase the Property if either:
(i) Informix shall have elected to satisfy its obligations under clause
(ii) of Paragraph 2(a) on the Designated Sale Date and BNPLC shall have
elected to keep the Property in accordance with clause (ii) of Paragraph
2(a); or
(ii) Informix shall have failed on the Designated Sale Date to make or
cause to be made all payments to BNPLC 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 BNPLC does not receive all payments due under the Lease and all
payments required hereunder on the Designated Sale Date, Informix may
nonetheless tender to BNPLC 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 Sale Date to the date
of tender, and if presented with such a tender within thirty (30) days
after the applicable Designated Sale Date, BNPLC 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 BNPLC. All amounts payable under the preceding
Paragraphs 2(a) or 2(c) by Informix and, if applicable, by the
Applicable Purchaser must be paid directly to BNPLC, and no payment on
behalf of or for the account of BNPLC 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 Sale
Date Informix must pay all amounts then due to BNPLC under the Lease.
BNPLC will remit any excess amounts due Informix pursuant to the last
sentence of clause (ii) of Paragraph 2(a) promptly after BNPLC's receipt
of the same and in no event later than thirty (30) days thereafter.
(e) Effect of Options on Subsequent Title Encumbrances. It is the
intent of BNPLC and Informix that any conveyance of the Property to
Informix or any Applicable Purchaser pursuant to this Agreement shall
cut off and terminate any interest in the Property claimed by, through
or under BNPLC, including the Participants (but not any unsatisfied
obligations to BNPLC under the Lease, the Environmental Indemnity or
this Agreement), including but not limited to any Prohibited
Encumbrances (as defined in the Lease) and any leasehold or other
interests conveyed by BNPLC in the ordinary course of BNPLC's business.
Anyone accepting or taking any interest in the Property by or through
BNPLC after the date of this Agreement shall acquire such interest
subject to the rights and options granted Informix hereby. Further,
Informix and any Applicable Purchaser shall be entitled to pay any
payment required by this Agreement for the purchase of the Property
directly to BNPLC notwithstanding any actual or attempted prior
conveyance or assignment by BNPLC, voluntary or otherwise, of any right
or interest in this Agreement or the Property; neither Informix nor any
Applicable Purchaser shall be responsible for the proper distribution or
application of any such payments by BNPLC; and any such payment to BNPLC
shall discharge the obligation of Informix to cause such payment to be
made to all Persons claiming an interest in such payment.
3. Terms of Conveyance Upon Purchase. Immediately after receipt of all
payments to BNPLC required pursuant to the preceding Paragraph 2, BNPLC
must, unless it is to keep the Property as permitted by Paragraph
2(a)(ii), (A) deliver Escrowed Proceeds, if any, and (b) convey the
interest in the Property received by BNPLC pursuant to the Existing
Contract (save and except any interest in or any part of the Property
previously taken by eminent domain) by grant deed to Informix 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 then due BNPLC or
that may thereafter become due to BNPLC under the Lease, the
Environmental Indemnity or this Agreement because of any expense or
liability incurred by BNPLC 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 Applicable Purchaser or
Informix , 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, BNPLC shall also tender to Informix or the Applicable
Purchaser, as the case may be, the following, each fully executed and,
where appropriate, acknowledged on BNPLC's behalf by an officer of
BNPLC: (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 Informix or the Applicable Purchaser
must execute and return to BNPLC, (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, (8) a
certificate concerning tax withholding in the form attached as Exhibit
I, and (9) if applicable, an Indemnity for Prohibited Encumbrances in
the form attached hereto as Exhibit J. The Indemnity for Prohibited
Encumbrances described in the preceding sentence shall be required if,
but only if, before the other Required Documents are tendered by BNPLC
in accordance with this Agreement, Informix shall have identified,
provided a written list to BNPLC of, and been unable to obtain a
commitment for title insurance against, any title encumbrances that
Informix believes in good faith may constitute Prohibited Encumbrances
and that, if valid, would constitute Prohibited Encumbrances. Any such
Indemnity will be completed by attaching a list of such identified
encumbrances as Annex B thereto.
4. Survival of Informix's Obligations.
(a) Status of this Agreement. Except as expressly provided herein,
this Agreement shall not terminate, nor shall Informix or BNPLC or any
of their successors or assigns have any right to terminate this
Agreement, nor shall Informix be entitled to any reduction of the
Purchase Price hereunder, nor shall the obligations of Informix or BNPLC
hereunder (including the obligations of Informix to BNPLC 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 Informix'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 Informix or any
party claiming under Informix by paramount title or otherwise (provided,
if Informix is wrongfully evicted by BNPLC or by any third party
exercising its rights under a Prohibited Encumbrance, then Informix will
have the remedies described in the last sentence of this Paragraph), (v)
Informix's prior acquisition or ownership of any interest in the
Property, (vi) any default on the part of BNPLC under this Agreement,
the Lease or any other agreement to which BNPLC is a party, or (vii) any
other cause, whether similar or dissimilar to the foregoing, any
existing or future law to the contrary notwithstanding. It is the
intention of the parties hereto that the obligations of Informix
hereunder (including Informix's obligation to make payments under - and,
if applicable, to cause the Applicable Purchaser to make payments under
Paragraph 2) shall be separate and independent of the covenants and
agreements of BNPLC. Accordingly, subject only to the tender by BNPLC
of Required Documents and of any Escrowed Proceeds (if such tender is
not excused because of an election by BNPLC to keep the Property under
Paragraph 2(a)(ii)), 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 Informix hereunder shall continue
unaffected by any breach of this Agreement by BNPLC. However, nothing
in this subparagraph, nor the performance without objection by Informix
of its obligations hereunder, shall be construed as a waiver by Informix
of any right Informix may have at law or in equity, following (A) any
failure by BNPLC to tender any Escrowed Proceeds or a grant deed and the
other Required Documents as required by Paragraph 3 (if such tender is
not excused because of an election by BNPLC to keep the Property under
Paragraph 2(a)(ii)) upon the tender by Informix or the Applicable
Purchaser of the payments required by Paragraph 2 and of the other
documents to be executed in favor of BNPLC at the closing of the sale
hereunder, or (B) any failure by BNPLC to remove all Prohibited
Encumbrances before conveying the Property pursuant to this Agreement,
(i) to recover monetary damages proximately caused by such failure of
BNPLC if BNPLC does not cure the failure within thirty (30) days after
Informix demands a cure by written notice to BNPLC, or (ii) to obtain a
decree compelling specific performance of BNPLC's obligation hereunder.
(b) Remedies Under the Lease and the Environmental Indemnity. No
repossession of or re-entering upon the Property or exercise of any
other remedies available under the Lease or the Environmental Indemnity
shall relieve Informix of its liabilities and obligations hereunder, all
of which shall survive the exercise of remedies under the Lease and
Environmental Indemnity. Informix acknowledges that the consideration
for this Agreement is separate and independent of the consideration for
the Lease and the Environmental Indemnity, and Informix's obligations
hereunder shall not be affected or impaired by any event or circumstance
that would excuse Informix from performance of its obligations under the
Lease or the Environmental Indemnity.
5. Remedies Cumulative. No right or remedy herein conferred upon or
reserved to BNPLC is intended to be exclusive of any other right or
remedy BNPLC has with respect to the Property, and each and every right
and remedy shall be cumulative and in addition to any other right or
remedy given hereunder or now or hereafter existing at law or in equity
or by statute. In addition to other remedies available under this
Agreement, either party shall be entitled, to the extent permitted by
applicable law, to a decree compelling performance of any of the other
party's agreements hereunder.
6. 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 BNPLC 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.
7. 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.
8. Estoppel Certificate. Informix and BNPLC will each, upon not less
than twenty (20) days' prior written request by the other, 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 BNPLC with respect
to the Property. Neither Informix nor BNPLC shall be required to
provide such a certificate more frequently than once in any six month
period; provided, however, that if either party 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, the other shall provide a
certificate upon request whether or not it had provided a certificate
within the prior six month period.
9. 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 BNPLC, shall be deemed to be complied with when and if the
following steps are taken:
(a) All payments required to be made by Informix or the Applicable
Purchaser to BNPLC hereunder shall be paid to BNPLC in immediately
available funds by wire transfer to:
Federal Reserve Bank of San Francisco
Account: Banque Nationale de Paris
ABA #: 121027234
Reference: Informix (Freedom Circle Property)
or at such other place and in such other manner as BNPLC may designate
in a notice to Informix (provided BNPLC will not unreasonably designate
a method of payment other than wire transfer). Time is of the essence
as to all payments to BNPLC under this Agreement. Any payments required
to be made by BNPLC to Informix pursuant to the last sentence of clause
(ii) of Paragraph 2(a) shall be paid to Informix in immediately
available funds by wire by wire transfer to: Informix Software, Inc.,
Account No.: 12330-09815, Bank of America, 1850 Gateway Boulevard,
Concord, California 94520, ABA#: 121000358; or as Informix may otherwise
direct by written notice sent to Agent in accordance herewith (provided
Informix will not unreasonably designate a method of payment other than
wire transfer).
(b) All notices, demands 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: (A) personal
service, with proof of delivery or attempted delivery retained; (B)
electronic communication, whether by telex, telegram or telecopying (if
confirmed in writing sent by United States first class mail, return
receipt requested); or (C) 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 (A) or (C) hereof
shall be deemed received (whether or not actually received) upon first
attempted delivery at the proper notice address on any Business Day
between 9:00 A.M. and 5:00 P.M., and any notice or other communication
sent pursuant to clause (B) hereof shall be deemed received upon
dispatch by electronic means.
Address of BNPLC:
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
or Rafael Lumanlan
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 Informix:
INFORMIX CORPORATION
4100 Bohannon Drive
Menlo Park , California 94025
Attn: Treasurer
Telecopy: (415) 926-6564
With a copy to:
Wilson, Sonsini, Goodrich & Rosati
650 Page Mill
Palo Alto, California 94304-1050
Attention: Real Estate Department/BOB
Telecopy: (415) 493-6811
10. Severability. Each and every covenant and agreement of Informix
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 Informix hereunder, to the maximum extent possible, shall be deemed
to be separate, independent and in addition to, not in lieu of, the
obligations of Informix 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.
11. Entire Agreement. This Agreement and the documents and agreements
referred to herein set forth the entire agreement between the parties
concerning the subject matter hereof and no amendment or modification of
this Agreement shall be binding or valid unless expressed in a writing
executed by both parties hereto.
12. 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.
13. 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.
14. 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.
15. Successors and Assigns. The terms, provisions, covenants and
conditions hereof shall be binding upon Informix and BNPLC and their
respective permitted successors and assigns and shall inure to the
benefit of Informix and BNPLC and all permitted transferees, mortgagees,
successors and assignees of Informix and BNPLC with respect to the
Property; provided, that the rights of BNPLC hereunder shall not pass to
Informix or any Applicable Purchaser or any subsequent owner claiming
through them. Prior to the Designated Sale Date BNPLC may transfer,
assign and convey, in whole or in part, the Property and any and all of
its rights under this Agreement and the other Purchase Documents
(subject to the terms of this Agreement) by any conveyance that
constitutes a Permitted Transfer, but not otherwise. If BNPLC sells or
otherwise transfers the Property and assigns its rights under this
Agreement, the other Purchase Documents and the Lease pursuant to a
Permitted Transfer, then to the extent BNPLC's successor in interest
confirms its liability for the obligations imposed upon BNPLC by this
Agreement, the other Purchase Documents and the Lease on and subject to
the express terms set out herein and therein, BNPLC shall thereby be
released from any further obligations hereunder or thereunder, and
Informix will look solely to each successor in interest of BNPLC for
performance of such obligations.
16. WAIVER OF JURY TRIAL. BNPLC AND INFORMIX 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. Informix and BNPLC 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. Informix and
BNPLC 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. In the event of litigation,
this Agreement may be filed as a written consent to a trial by the
court.
17. Income Tax Reporting. BNPLC and Informix intend this Agreement and
the Lease to have a form for income taxes which is different than the
form of this Agreement and the Lease for other purposes, and thus the
parties acknowledge and agree as follows:
(i) For purposes of determining their respective federal, state and
local income tax obligations, BNPLC and Informix believe and intend that
this Agreement and the Lease constitute a financing arrangement or
conditional sale. Both BNPLC and Informix agree to report this
Agreement and the Lease as a financing arrangement or conditional sale
on their respective income tax returns (the "Required Reporting"),
unless such Required Reporting is challenged in writing by the Internal
Revenue Service or another governmental authority with jurisdiction (a
"Tax Challenge"). Consistent with the foregoing, BNPLC and Informix
expect that Informix (and not BNPLC) shall be treated as the true owner
of the Property for income tax purposes, thereby entitling Informix (and
not BNPLC) to take depreciation deductions and other tax benefits
available to the owner. Informix shall also report all interest earned
on Escrowed Proceeds or any collateral pledged pursuant to the Purchase
Documents as Informix's income for federal, state and local income tax
purposes. REFERENCES IN THIS AGREEMENT OR IN THE LEASE TO A "LEASE" OF
THE "PROPERTY" ARE NOT INTENDED FOR INCOME TAX PURPOSES TO REFLECT THE
INTENT OF BNPLC OR INFORMIX AS TO THE FORM OF THE TRANSACTIONS COVERED
BY, OR THE PROPER CHARACTERIZATION OF, THIS AGREEMENT AND THE LEASE.
(ii) For all other purposes, including the determination of the
appropriate financial accounting for this Agreement and the
determination of their respective rights and remedies under state law,
BNPLC and Informix believe and intend that (i) the Lease constitutes a
true Lease, not a mere financing arrangement, enforceable in accordance
with its express terms (and neither this Paragraph 17 nor the provisions
referencing this Paragraph on the title page of this Agreement nor the
corresponding provisions in the Lease are intended to affect the
enforcement of any other provisions of this Agreement or the Lease) and
(ii) this Agreement shall constitute a separate and independent
contract, enforceable in accordance with the express terms and
conditions set forth herein. In this regard, Informix acknowledges that
Informix asked BNPLC to participate in the transactions evidenced by
this Agreement and the Lease as a landlord and owner of the Property,
not as a lender. Although other transactions might have been used to
accomplish similar results, Informix expects to receive certain material
accounting and other advantages through the use of a lease transaction.
Accordingly, and notwithstanding the Required Reporting for income tax
purposes, Informix cannot equitably deny that this Agreement and the
Lease should be construed and enforced in accordance with their
respective terms, rather than as a mortgage or other security device, in
any action brought by BNPLC to enforce this Agreement or the Lease.
In the event of a Tax Challenge, BNPLC and Informix shall each provide
to the other copies of all notices from the Internal Revenue Service or
any other governmental authority presenting the Tax Challenge. Further,
before changing from the Required Reporting because of a Tax Challenge,
BNPLC and Informix shall each consider in good faith any reasonable
suggestions received from the other party to this Agreement about an
appropriate response to the Tax Challenge; provided, however, that the
suggestions are set forth in a notice delivered no later than thirty
Business Days after the suggesting party is first notified of the Tax
Challenge; and, provided further, that when presented with a Tax
Challenge, BNPLC shall have the right to change from the Required
Reporting rather than participate in any litigation or other legal
proceeding against the Internal Revenue Service or another governmental
authority. In any event, Informix shall indemnify BNPLC and defend and
hold BNPLC harmless from and against all Losses imposed on or asserted
against or incurred by BNPLC by reason of, in connection with or arising
out of any such challenge or any resulting recharacterization of this
Agreement or the Lease required by the Internal Revenue Service or
another governmental authority, including any additional taxes that may
become due upon any sale under this Agreement, to the extent (if any)
that such Losses are not offset by tax savings to BNPLC resulting from
additional depreciation deductions or other tax benefits of the
recharacterization.
18. Security for Informix's Obligations; Return of Collateral and
Escrowed Proceeds. Informix's obligations under this Agreement are
secured by the Pledge Agreement, reference to which is hereby made for a
description of the Collateral covered thereby and the rights and
remedies provided to BNPLC thereby. Although the collateral agent and
the custodian appointed for BNPLC as provided in the Pledge Agreement
shall be entitled to hold all Collateral as security for the full and
faithful performance by Informix of Informix's covenants and obligations
under this Agreement, the Collateral shall not be considered an advance
payment of the Purchase Price or any Shortage Amount or a measure of
BNPLC's damages should Informix breach this Agreement. If Informix does
breach this Agreement and fails to cure the same within any time
specified herein for the cure, BNPLC may, from time to time, without
prejudice to any other remedy and without notice to Informix, require
the collateral agent and the custodian to immediately apply the proceeds
of any disposition of the Collateral (and any cash included in the
Collateral) to amounts then due hereunder from Informix. BNPLC shall be
entitled to return any Collateral not sold or used to satisfy the
obligations secured by the Pledge Agreement directly to Informix
notwithstanding any prior actual or attempted conveyance or assignment
by Informix, voluntary or otherwise, of any right to receive the same;
neither BNPLC not the collateral agent named in the Pledge Agreement
shall be responsible for the proper distribution or application by
Informix of any such Collateral returned to Informix; and any such
return of Collateral to Informix shall discharge any obligation of BNPLC
to deliver such Collateral to all Persons claiming an interest in the
Collateral. Further, BNPLC shall be entitled to deliver any Escrowed
Proceeds it holds on the Designated Sale Date directly to Informix or to
any Applicable Purchaser purchasing BNPLC's interest in the Property and
the Escrowed Proceeds pursuant to this Agreement notwithstanding any
prior actual or attempted conveyance or assignment by Informix,
voluntary or otherwise, of any right to receive the same; BNPLC shall
not be responsible for the proper distribution or application by
Informix or any Applicable Purchaser of any such Escrowed Proceeds paid
over to Informix or the Applicable Purchaser; and any such payment of
Escrowed Proceeds to Informix or an Applicable Purchaser shall discharge
any obligation of BNPLC to deliver the same to all Persons claiming an
interest therein.
19. Security for BNPLC's Obligations. To secure Informix's right to
recover any damages caused by a breach of Paragraph 3 by BNPLC,
including any such breach caused by a rejection or termination of this
Agreement in any bankruptcy or insolvency proceeding instituted by or
against BNPLC, as debtor, BNPLC does hereby grant to Informix a lien and
security interest against all rights, title and interests of BNPLC from
time to time in and to the Property. Informix may enforce such lien and
security interest judicially after any such breach by BNPLC, but not
otherwise. Informix waives any right it has to seek a deficiency
judgement against BNPLC in any action brought for a judicial foreclosure
of such lien and security interest, and in connection therewith, BNPLC
hereby acknowledges that it shall have no right of redemption following
any such judicial foreclosure pursuant to Cal. Code Civ. Procedure
Section 729. Contemporaneously with the execution of this Agreement,
Informix and BNPLC will execute a memorandum of this Agreement which is
in recordable form and which specifically references the lien granted in
this Paragraph, and Informix shall be entitled to record such memorandum
at any time prior to the Designated Sale Date.
20. Not a Partnership, Etc. NOTHING IN THIS PURCHASE AGREEMENT IS
INTENDED TO BE OR TO CREATE ANY PARTNERSHIP, JOINT VENTURE, OR OTHER
JOINT ENTERPRISE BETWEEN BNPLC AND INFORMIX. NEITHER THE EXECUTION OF
THIS PURCHASE AGREEMENT NOR THE ADMINISTRATION OF THIS PURCHASE
AGREEMENT OR OTHER DOCUMENTS REFERENCED HEREIN BY BNPLC, NOR ANY OTHER
RIGHT, DUTY OR OBLIGATION OF BNPLC UNDER OR PURSUANT TO THIS PURCHASE
AGREEMENT OR SUCH DOCUMENTS IS INTENDED TO BE OR TO CREATE ANY FIDUCIARY
OBLIGATIONS OF BNPLC TO INFORMIX.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this Purchase Agreement as
of the date first above written.
"BNPLC"
BNP LEASING CORPORATION, a Delaware corporation
By: /s/Lloyd G. Cox
Lloyd G. Cox, Vice President
[Continuation of signature pages to Purchase Agreement dated to be
effective January 6, 1997]
"Informix"
INFORMIX CORPORATION, a Delaware corporation
By: /s/ Margaret Brauns
Margaret Brauns, Vice President and Treasurer
Exhibit A
Legal Description
REAL PROPERTY in the City of Santa Clara, County of Santa Clara, State
of California, described as follows:
PARCEL ONE:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map
being a resubdivision of lands of Marriott Corporation, Successor by
Merger to Fespar Enterprises, Inc., and Marriott Hotels, Inc., and
Stephen & Mary Dorcich as shown on Record of Survey recorded on January
12, 1977 in Book 386 of Maps, at Page 54, Santa Clara County Records",
which Map was filed for record in the Office of the Recorder of the
County of Santa Clara, State of California, on December 29, 1977 in Book
410 of Maps, at Pages 29 and 30.
PARCEL TWO:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map
being all of Parcel 3, as shown on that certain `Parcel Map', recorded
in Book 410 of Maps, at Pages 29 and 30, Santa Clara County Records",
which Map was filed for Record in the Office of the Recorder of the
County of Santa Clara, State of California, on May 18, 1979 in Book 442
of Maps, at Page 8.
PARCEL THREE:
All of Parcel 6, as shown upon that certain Map entitled, "Parcel Map
being a Resubdivision of lands of Marriott Corporation, Successor by
Merger to Fespar Enterprises, Inc., and Marriott Hotels, Inc., and
Stephen & Mary Dorcich as shown on Record of Survey recorded on January
12, 1977 in Book 386 of Maps, at Page 54, Santa Clara County Records",
which Map was filed for record in the Office of the Recorder of the
County of Santa Clara, State of California, on December 29, 1977 in Book
410 of Maps, at Pages 29 and 30.
PARCEL FOUR:
All of Parcel 1, as shown upon that certain Map entitled, "Parcel Map
being all of Parcel 3, as shown on that certain `Parcel Map', recorded
in Book 410 of Maps, at Pages 29 and 30, Santa Clara County Records",
which Map was filed for record in the Office of the Recorder of the
County of Santa Clara, State of California, on May 18, 1979 in Book 442
of Maps, at Page 8.
Exhibit B
CORPORATION GRANT DEED
RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO:
NAME: [Informix Corporation or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE: ___________________
Zip: ___________________
MAIL TAX STATEMENTS TO:
NAME: [Informix Corporation or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE: ___________________
Zip: ___________________
CORPORATION GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
BNP LEASING CORPORATION, a Delaware corporation ("BNPLC"), hereby grants
to [Informix or the Applicable Purchaser] the land situated in the
County of Santa Clara, 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 or 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; and
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
REAL PROPERTY in the City of Santa Clara, County of Santa Clara, State
of California, described as follows:
PARCEL ONE:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map
being a resubdivision of lands of Marriott Corporation, Successor by
Merger to Fespar Enterprises, Inc., and Marriott Hotels, Inc., and
Stephen & Mary Dorcich as shown on Record of Survey recorded on January
12, 1977 in Book 386 of Maps, at Page 54, Santa Clara County Records",
which Map was filed for record in the Office of the Recorder of the
County of Santa Clara, State of California, on December 29, 1977 in Book
410 of Maps, at Pages 29 and 30.
PARCEL TWO:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map
being all of Parcel 3, as shown on that certain `Parcel Map', recorded
in Book 410 of Maps, at Pages 29 and 30, Santa Clara County Records",
which Map was filed for Record in the Office of the Recorder of the
County of Santa Clara, State of California, on May 18, 1979 in Book 442
of Maps, at Page 8.
PARCEL THREE:
All of Parcel 6, as shown upon that certain Map entitled, "Parcel Map
being a Resubdivision of lands of Marriott Corporation, Successor by
Merger to Fespar Enterprises, Inc., and Marriott Hotels, Inc., and
Stephen & Mary Dorcich as shown on Record of Survey recorded on January
12, 1977 in Book 386 of Maps, at Page 54, Santa Clara County Records",
which Map was filed for record in the Office of the Recorder of the
County of Santa Clara, State of California, on December 29, 1977 in Book
410 of Maps, at Pages 29 and 30.
PARCEL FOUR:
All of Parcel 1, as shown upon that certain Map entitled, "Parcel Map
being all of Parcel 3, as shown on that certain `Parcel Map', recorded
in Book 410 of Maps, at Pages 29 and 30, Santa Clara County Records",
which Map was filed for record in the Office of the Recorder of the
County of Santa Clara, State of California, on May 18, 1979 in Book 442
of Maps, at Page 8.
Annex B
Permitted Encumbrances
[NOTE: TO THE EXTENT THAT SPECIFIC ENCUMBRANCES (OTHER THAN "PROHIBITED
ENCUMBRANCES") ARE IDENTIFIED IN ADDITION TO THOSE DESCRIBED BELOW, SUCH
ADDITIONAL ENCUMBRANCES WILL BE ADDED TO THE LIST BELOW AND THIS "NOTE"
WILL BE DELETED BEFORE THIS DEED IS ACTUALLY EXECUTED AND DELIVERED BY
BNPLC. UCH ADDITIONAL ENCUMBRANCES WOULD INCLUDE ANY NEW ENCUMBRANCES
APPROVED BY BNPLC AS "PERMITTED ENCUMBRANCES" FROM TIME TO TIME BECAUSE
OF INFORMIX'S REQUEST FOR BNPLC'S CONSENT OR APPROVAL TO AN ADJUSTMENT
AS PROVIDED IN THE LEASE.]
This conveyance is subject to any encumbrances that do not constitute
"Prohibited Encumbrances" (as defined in the Lease referenced in the
Purchase Agreement pursuant to which this Deed is being delivered),
including general and special taxes and assessments, and including the
following matters to the extent the same are still valid and in force:
1. The fact that the ownership of said land does not include any
right of ingress or egress to or from the highway contiguous thereto,
said right having been relinquished by deed
From: Marriott Hotels, Inc., a Delaware Corporation
To: The City of Santa Clara, California, A Municipal Corporation
Recorded: May 28, 1974 in Book 0915 at Page 395 of Official Records of
Santa Clara County, California
Said matter affects: Parcels Two, Three and Four
2. An easement affecting the portion of said land and for the
purposes stated herein, and incidental purposes,
In Favor Of: City of Santa Clara, California, A Municipal
Corporation
Recorded: June 11, 1975 in Book B457 at Page 125 Official
Records of Santa Clara County, California
(A) For: Wire Clearance Easement and Right-of-Way
Affects: The Easterly 5 feet of Parcels One and Two
(B) For: Right-of-Way and Maintenance Easement
Affects: A 5 foot strip of land immediately adjacent to
the easement described in (A) above.
(C) For: Installing, constructing, maintaining,
repairing and replacing underground
anchors
Affects: As follows:
A strip of land 2 feet in width and 15 feet in length, the centerline of
said strip being a line bearing South 86 deg 06' 57" West from the
Northerly terminus of that course North 0 deg 02' 09" West 469.34 feet
in the boundary description of the thereinabove described Parcel 1, the
Easterly terminus being the Westerly line of thereinabove described
Parcel 3.A strip of land 2 feet in width and 15 feet in length, the
centerline of said strip being a line bearing South 86 deg 21' 20" West
from the Northerly terminus of that course North 7 deg 43' 57" West
400.11 feet in the boundary description of the thereinabove described
Parcel 1, the Easterly terminus being said Westerly line of thereinabove
described Parcel 3.
A strip of land 2 feet in width and 15 feet in length, the centerline of
said strip being a line bearing North 87 deg 41' 54" West from the
Northerly terminus of that course North 0 deg 26' 38" East 303.60 feet
in the boundary description of the thereinabove described Parcel 1, the
Easterly terminus being said Westerly line of thereinabove described
Parcel 3.
Said matter affects: Parcels One and Two
3. An easement affecting the portion of said land and for the
purposes stated herein, and incidental purposes,
In Favor Of: City of Santa Clara, California, A Municipal Corporation
For: Storm Drainage Easements
Recorded: July 14, 1977 in Book C992 at Page 1 Official Records of
Santa Clara County, California
Affects: As follows:
Beginning at a point on the Westerly line of the lands of the City of
Santa Clara, A Municipal Corporation, as said lands are described as
Parcel 1 in the Grant Deed, recorded on June 11, 1975 in Book B457
Official Records of Santa Clara County, at Page 125; said Point of
Beginning being distant on said Westerly line North 0 deg 02' 09" West
33.39 feet from the Northeast corner of Parcel 2 as described in last
said Grant Deed; thence from said Point of Beginning leaving last said
line South 79 deg 45' 07" West 168.22 feet to a point on the general
Northeasterly line of lands of the City of Santa Clara, A Municipal
Corporation, as described in the Grant Deed recorded on May 28, 1974 in
Book 0915 Official Records of Santa Clara, at Page 395; thence
Northwesterly along last said line North 70 deg 14' 53" West 865.00 feet
to a point thereon; thence leaving last said line North 19 deg 45' 07"
East 35.00 feet; thence Southeasterly along a line parallel with and
perpendicularly distant 35.00 feet Northeasterly from said general
Northeasterly line of lands of the City of Santa Clara South 70 deg 14'
53" East 855.62 feet to a point thereon; thence leaving said parallel
line North 79 deg 45' 07" East 165.14 feet to a point of the above
mentioned Westerly line of lands of the City of Santa Clara described in
Parcel 1; thence Southerly along last said line South 0 deg 02' 09" East
35.56 feet to the Point of Beginning.
Said matter affects: Parcels One, Two and Four
4. An easement affecting the portion of said land and for the
purposes stated herein, and incidental
purposes,
In Favor Of: City of Santa Clara, California, A Municipal Corporation
For: Landscaping Purposes
Recorded: July 14, 1977 in Book C992 at Page 12 Official Records of
Santa Clara County, California
Affects: The Easterly 10 feet of Parcel Three; the Northerly and
Westerly 10 feet of Parcel One; the Westerly 10 feet of Parcel Two; and
the Northerly 10 feet of Parcel Four
5. An easement affecting the portion of said land and for the
purposes stated herein, and incidental purposes,
In Favor Of: City of Santa Clara, California, A Municipal Corporation
For: Underground Electrical Easements
Recorded: July 14, 1977 in Book C992 at Page 22 Official Records of
Santa Clara County, California
Affects: The Northerly and Westerly 10 feet of Parcel One; the
Northerly 10 feet of Parcel Four; the Westerly 10 feet of Parcel Two;
and the Easterly 10 feet of Parcel Three
6. An unrecorded Agreement, affecting said land, for the purposes,
stated herein, upon the terms, covenants and conditions referred to therein,
between the parties named herein
For: Real Estate Purchase Agreement
Dated: October 27, 1977
Executed By: Marriott Corporation, a Delaware corporation and Intel
Corporation, a California corporation
Said Agreement, among other things, has conditions for special
Architectural Standards as to all parcels and conditions for the Sign
Parcel and Easements described in said agreement affecting Parcel Four.
7. An easement affecting the portion of said land for the purposes
stated herein, and incidental purposes, shown or dedicated by the Map
recorded in Book 410 of Maps of Santa Clara County, California, at Pages
29 and 30:
For: Proposed Sign Easement
Affects: The Southeasterly portion of Parcel Four
The above easement was reserved for the benefit of Marriot Corporation,
a corporation by Deed recorded December 30, 1977, in Book D380, Page 36,
of Official Records of Santa Clara County, California.
8. An easement affecting the portion of said land and for the
purposes stated herein, and incidental
purposes,
In Favor Of: City of Santa Clara, California, A Municipal Corporation
For: Street and Utility Purposes
Recorded: April 11, 1979 in Book E409 at Page 570 Official Records
of Santa Clara County, California
Affects: As follows:
All that certain Parcel of land lying within Parcel 6 of the Parcel Map
filed for Record December 29, 1977 in Book 410 of Maps, Pages 29 & 30,
in the Records of Santa Clara County, California, being more
particularly described as follows:
Beginning at the Northwest corner of said Parcel 6:
Thence North 89 deg. 44' 31" East, along the Northerly line of said
Parcel 6, a distance of 640.02 feet, to the Northeast corner of said
Parcel 6;
Thence, South 0 deg. 02' 19" West, along the Easterly line of said
Parcel 6, a distance of 35.86 feet to a non-tangent curve concave to the
Southwest having a radius of 35.00 feet and a beginning tangent bearing
North 30 deg. 57' 51" West;
Thence, Northwesterly along said curve, 19.01 feet, through a central
angle of 31 deg. 07' 02" to a non-tangent line parallel with and 23.00
feet Southerly of, measured at right angles to, said Northerly line of
said Parcel 6;
Thence, South 89 deg. 44' 31" West, along said parallel line a distance
of 620.80 feet, to the Westerly line of said Parcel 6;
Thence, North 17 deg. 37' 57" West along said Westerly line of Parcel 6,
a distance of 17.46 feet;
Thence, continuing along said Westerly line of Lot 6, North 0 deg. 02'
46" West, 6.34 feet, to the point of beginning.
Said matter affects: Parcel Three
9. An easement affecting the portion of said land for the purposes
stated herein, and incidental purposes, shown or dedicated by the Map
recorded in Book 442 of Maps of Santa Clara County, California, at Page 8
For: Underground Electrical Easement
Affects: The Westerly portion of Said Land
Said matter affects: Parcel Four
10. An easement affecting the portion of said land and for the
purposes stated herein, and incidental purposes,
In Favor Of: Marriott Corporation, a Delaware Corporation
For: Ingress and Egress to an existing sign
Recorded: May 18, 1979 in Book E506 at Page 74 Official
Records of Santa Clara County, California
Affects: As follows:
Commencing on the Southerly line of Freedom Circle at the Northerly
common corner of Parcels 3 and 4 as said circle and Parcels are shown on
that Parcel Map filed in Book 410 of Maps at Pages 29 and 30, Santa
Clara County Records; thence Northeasterly along the Southerly line of
Freedom Circle on a curve to the left with a radius of 336 feet through
a central angle of 0 deg 54' 9" an arc distance of 5.29 feet to the True
Point of Beginning of this description; thence from said True Point of
Beginning continuing along said curve to the left with a radius of 336
feet through a central angle of 3 deg 38' 21" an arc distance of 21.34
feet; thence South 15 deg 11' 58" West 134.19 feet; thence South 14 deg
48' 02" East 40.00 feet; thence South 15 deg 11' 58" West 233.34 feet;
thence South 70 deg 14' 53" East 207.87 feet to the Westerly line of a
50 foot by 40 foot sign easement as shown on the above mentioned parcel
map; thence along the Westerly line of said 50 foot by 40 foot sign
easement, South 19 deg 45' 07" West 20.00 feet to the Northerly line of
a 35 foot wide storm drainage easement as shown on the above mentioned
parcel map; thence along the Northerly line of said 35 foot wide storm
drainage easement North 70 deg 14' 53" West 226.21 feet; thence North 15
deg 11' 58" East 246.30 feet; thence North 14 deg 48' 02" West 40.00
feet; thence North 15 deg 11' 58" East 131.73 feet to the Point of
Beginning.
Said matter affects: Parcel Four
11. A Lease, affecting the premises herein stated, executed by and
between the parties named herein, for the term and upon the terms,
covenants and conditions therein provided,
Dated: July 17, 1978, amended on May 1, 1979 and on May
15, 1979
Lessor: John Arrillaga, Trustee, or his successor trustee,
under Trust Agreement dated July 20, 1977 (John
Arrillaga Separate Property Trust) as amended, and
Richard T. Peery, Trustee, or his successor
trustee, under Trust Agreement dated July 20, 1977
(Richard T. Peery Separate Property Trust)
Lessee: Pedro's Food Systems, Incorporated, a California
Corporation and Peter S. Ramirez, Individually and
Peter O. Ramirez, Individually, Jointly and
Severally
Term: Twenty-five (25) Years commencing on June 1, 1979
Disclosed by: Short Form of Lease
Recorded: May 18, 1979 in Book E506 At Page 82 Of Official
Records of Santa Clara County, California
Affects: Parcel Four
An Assignment of the Lessee's interest in said lease was
Executed By: Peter S. Ramirez, as individual (Ramirez), and
Pedro's Food Systems, Inc., a California
Corporation
To: Brookside Development, Inc., a California
Corporation ("BD"); and Michael R. Martinez, an
individual ("Martinez"), Pedro's Management
Systems, Inc., a California Corporation
Recorded: August 11, 1987 in Book K256 at Page 1114 of
Official Records of Santa Clara County, California
An un-recorded assignment of the lessee's interest in said lease was
Executed By: Brookside Development, Inc., a California
Corporation and Michael R. Martinez and Pedro's
Management Systems Inc.
To: Pedro Management Systems, Inc.
Dated: November 17, 1987
An un-recorded assignment of the lessee's interest in said lease was
Executed By: Pedro Management Systems, Inc.
To: Golden State Restaurants, Inc.
Dated: February 18, 1992
Memorandum of Amendment and Assignment of Ground Lease
Dated: February 18, 1992
Executed By: John Arrillaga, Trustee or his Successor Trustee,
under Trust Agreement dated July 20, 1977 ("John Arrillaga Separate
Property Trust"), as amended and Richard T. Peery, Trustee or
his Successor Trustee, under Trust Agreement dated July 20,
1977 ("Richard T. Peery Separate Property Trust") and Golden
State Restaurants, Inc.
Recorded:
February 20, 1992 in Book M054 at Page 0873 of Official
Records of Santa Clara County, California
No representation is made as to the present ownership of said leasehold
or matters affecting the rights or interests of the lessor or lessee arising
out of or occasioned by said lease.
12. Release Agreement and Covenant Not to Sue executed and
acknowledged by Informix Corporation, a Delaware corporation
("Informix"), Peery Private Investment Company - WP, L.P., a California
limited partnership, as to an undivided 1/4 interest, Peery Public
Investment Company - WP, L.P., a California limited partnership, as to
an undivided 1/4 interest, and John Arrillaga, Trustee, or Successor
Trustee under Trust Agreement dated July 20, 1977 (The Arrillaga Family
Trust) as amended, as to an undivided 2/4 interest (collectively, "P/A")
and BNP Leasing Corporation, a Delaware corporation ("BNP") to be filed
for record in the Official Records of Santa Clara County, California.
13. Agreement Containing Covenants Running with the Land executed
and acknowledged by Informix, P/A and BNP to be filed for record in the
Official Records of Santa Clara County, California.
EXHIBIT C
PRELIMINARY CHANGE OF OWNERSHIP REPORT (uncompleted form)
EXHIBIT D
BILL OF SALE, ASSIGNMENT OF CONTRACT
RIGHTS AND INTANGIBLE ASSETS
Reference is made to that certain ______________ dated _______, 1996
(the "Agreement") between Informix Corporation, a __________ Corporation,
and _____________________, a ______________ ("Prior Owner"), pursuant to
which Informix Corporation named BNP LEASING CORPORATION ("Assignor") as
its designee and Prior Owner conveyed to Assignor the real property
described in Annex A attached hereto (the "Property).
Assignor hereby sells, transfers and assigns unto [INFORMIX 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 Agreement or under any document delivered by Prior Owner
thereunder to the extent related to the Property;
(b) all licenses, permits or similar consents (excluding any prepaid
utility reservations) from third parties to the extent related to the Property;
(c) any Escrowed Proceeds, as defined in that certain Purchase
Agreement between Assignor and Informix Corporation dated as of January 6,
1997 (the "Purchase Agreement") (pursuant to which this document is being
delivered), and 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;
(d) any goods, equipment, furnishings, furniture, chattels and
personal property of whatever nature that are located on or about the
Property; and
(e) any general intangibles, permits, licenses, franchises,
certificates, and other rights and privileges owned by Assignor and used
solely in connection with, or relating solely to, the Property,
including any such rights and privileges conveyed to Assignor pursuant
to the Agreement; but excluding any rights or privileges of Assignor
under (i) the Environmental Indemnity, as defined in the Purchase
Agreement, (ii) the Lease, as defined in the Purchase Agreement, 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, (iii) agreements between Assignor and
Participants, as defined in the Lease, or any modification or extension
thereof, and (iv) 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 any Prohibited Encumbrances (as defined in the
Lease described in the Purchase Agreement referenced above), but not
otherwise.
Assignee hereby assumes and agrees to keep, perform and fulfill
Assignor's obligations, if any, relating to any permits or contracts,
under which Assignor has rights being assigned herein.
Executed: _________________, _____.
ASSIGNOR:
BNP LEASING CORPORATION
a Delaware corporation
By:_______________________
Its:______________________
ASSIGNEE:
[INFORMIX, OR THE APPLICABLE PURCHASER], a _________ corporation
By:________________________
Its:_______________________
ANNEX A
Legal Description
REAL PROPERTY in the City of Santa Clara, County of Santa Clara, State
of California, described as follows:
PARCEL ONE:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map
being a resubdivision of lands of Marriott Corporation, Successor by
Merger to Fespar Enterprises, Inc., and Marriott Hotels, Inc., and
Stephen & Mary Dorcich as shown on Record of Survey recorded on January
12, 1977 in Book 386 of Maps, at Page 54, Santa Clara County Records",
which Map was filed for record in the Office of the Recorder of the
County of Santa Clara, State of California, on December 29, 1977 in Book
410 of Maps, at Pages 29 and 30.
PARCEL TWO:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map
being all of Parcel 3, as shown on that certain `Parcel Map', recorded
in Book 410 of Maps, at Pages 29 and 30, Santa Clara County Records",
which Map was filed for Record in the Office of the Recorder of the
County of Santa Clara, State of California, on May 18, 1979 in Book 442
of Maps, at Page 8.
PARCEL THREE:
All of Parcel 6, as shown upon that certain Map entitled, "Parcel Map
being a Resubdivision of lands of Marriott Corporation, Successor by
Merger to Fespar Enterprises, Inc., and Marriott Hotels, Inc., and
Stephen & Mary Dorcich as shown on Record of Survey recorded on January
12, 1977 in Book 386 of Maps, at Page 54, Santa Clara County Records",
which Map was filed for record in the Office of the Recorder of the
County of Santa Clara, State of California, on December 29, 1977 in Book
410 of Maps, at Pages 29 and 30.
PARCEL FOUR:
All of Parcel 1, as shown upon that certain Map entitled, "Parcel Map
being all of Parcel 3, as shown on that certain `Parcel Map', recorded
in Book 410 of Maps, at Pages 29 and 30, Santa Clara County Records",
which Map was filed for record in the Office of the Recorder of the
County of Santa Clara, State of California, on May 18, 1979 in Book 442
of Maps, at Page 8.
EXHIBIT E
Acknowledgment of Disclaimer of Representations and Warranties
THIS ACKNOWLEDGMENT OF DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
(this "Certificate") is made as of ___________________, ____, by
[INFORMIX OR THE APPLICABLE PURCHASER, AS THE CASE MAY BE], a
___________________ ("Grantee").
Contemporaneously with the execution of this Certificate, BNP Leasing
Corporation, a Delaware corporation ("BNPLC"), is executing and
delivering to Grantee (1) a 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 BNPLC makes no representations
or warranties of any nature or kind, whether statutory, express or
implied, with respect to environmental matters or the physical condition
of the Subject Property, and Grantee, by acceptance of the Conveyancing
Documents, accepts the Subject Property "AS IS," "WHERE IS," "WITH ALL
FAULTS" and without any such representation or warranty by Grantor as to
environmental matters, the physical condition of the Subject Property,
compliance with subdivision or platting requirements or construction of
any improvements. Without limiting the generality of the foregoing,
Grantee hereby further acknowledges and agrees that warranties of
merchantability and fitness for a particular purpose are excluded from
the transaction contemplated by the Conveyancing Documents, as are any
warranties arising from a course of dealing or usage of trade. Grantee
hereby assumes all risk and liability (and agrees that BNPLC shall not
be liable for any special, direct, indirect, consequential, or other
damages) resulting or arising from or relating to the ownership, use,
condition, location, maintenance, repair, or operation of the Subject
Property, except for damages proximately caused by (and attributed by
any applicable principles of comparative fault to) the Misconduct of
BNPLC or any Participant. For purposes hereof, "Misconduct" shall have
the meaning assigned to it the Lease Agreement between BNPLC and
Informix Corporation dated January 6, 1997. Such Lease Agreement is
referenced in the Purchase Agreement of even date therewith between
BNPLC and Informix Corporation, pursuant to which the Conveyancing
Documents are being delivered.
The provisions of this Certificate shall be binding on Grantee, its
successors and assigns and any other party claiming through Grantee.
Grantee hereby acknowledges that BNPLC is entitled to rely and is
relying on this Certificate.
EXECUTED as of ________________, ____.
___________________________, a______________________
By:______________________________
Name:_________________________
Title:________________________
Exhibit F
Documentary Transfer Tax Request
ACCOUNTABLE FORM #
DATE:
To: Santa Clara 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. Such
resolutions have not been amended, modified or rescinded and remain in
full force and effect.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal
of the Corporation on this , day of , .
[signature]
CORPORATE RESOLUTIONS OF
BNP LEASING CORPORATION
WHEREAS, pursuant to that certain Purchase Agreement (herein called the
"Purchase Agreement") dated as of January 6, 1997, by and between BNP
Leasing Corporation (the "Corporation") and [INFORMIX OR THE APPLICABLE
PURCHASER AS THE CASE MAY BE] ("Purchaser"), the Corporation agreed to
sell and Purchaser agreed to purchase or cause the Applicable Purchaser
(as defined in the Purchase Agreement) to purchase the Corporation's
interest in the property (the "Property") located in Santa Clara,
California more particularly described therein.
NOW THEREFORE, BE IT RESOLVED, that the Board of Directors of the
Corporation, in its best business judgment, deems it in the best
interest of the Corporation and its shareholders that the Corporation
convey the Property to Purchaser or the Applicable Purchaser pursuant to
and in accordance with the terms of the Purchase Agreement.
RESOLVED FURTHER, that the proper officers of the Corporation, and each
of them, are hereby authorized and directed in the name and on behalf of
the Corporation to cause the Corporation to fulfill its obligations
under the Purchase Agreement.
RESOLVED FURTHER, that the proper officers of the Corporation, and each
of them, are hereby authorized and directed to take or cause to be taken
any and all actions and to prepare or cause to be prepared and to
execute and deliver any and all deeds and other documents, instruments
and agreements that shall be necessary, advisable or appropriate, in
such officer's sole and absolute discretion, to carry out the intent and
to accomplish the purposes of the foregoing resolutions.
EXHIBIT H
BNP LEASING CORPORATION
717 N. HARWOOD
SUITE 2630
DALLAS, TEXAS 75201
,
[Title Insurance Company]
_________________
_________________
_________________
Re: Recording of Grant Deed to [Informix 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 [Informix or the Applicable Purchaser] (the "Transferee") that
withholding of tax is not required upon the disposition of a California
real property interest by transferor, BNP Leasing Corporation (the
"Seller"), the undersigned hereby certifies the following on behalf of
the Seller:
1. The Seller is not a foreign corporation, foreign partnership, foreign
trust, or foreign estate (as those terms are defined in the Internal
Revenue Code and Income Tax Regulations);
2. The United States employer identification number for the Seller is
_____________________;
3.The office address of the Seller is ___________ __________________.
[Note: BNPLC MUST INCLUDE EITHER ONE, BUT ONLY ONE, OF THE FOLLOWING
REPRESENTATIONS IN THE FIRPTA STATEMENT, BUT IF THE ONE INCLUDED STATES
THAT BNPLC IS DEEMED EXEMPT FROM CALIFORNIA INCOME AND FRANCHISE TAX,
THEN BNPLC 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: ___________, ____.
By:
Name:
Title:
EXHIBIT J
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (this "Agreement") is made as of
_________________, _____, by INFORMIX CORPORATION, a Delaware
corporation ("Purchaser") [OR THE APPLICABLE PURCHASER] and BNP LEASING
CORPORATION, a Delaware corporation ("Seller") and ________________________
("Title Company").
R E C I T A L S
A. Purchaser is acquiring the land described in Annex A attached
hereto and any improvements located thereon (the "Property") pursuant to
the terms and conditions of that certain Purchase Agreement dated
January 6, 1997 by between Seller and Purchaser [or Informix
Corporation] (the "Purchase Agreement").
B. In connection with its acquisition of the Property, Seller has
been notified as contemplated by the Purchase Agreement that the matters
described in Annex B attached hereto (the "Relevant Encumbrances") have
been identified as encumbrances upon title to the Property and that such
matters, to the extent valid, constitute Prohibited Encumbrances as
defined in the Lease referenced in the Purchase Agreement.
C. Because of such notice to Seller, Seller is required by the
Purchase Agreement to tender this Indemnity Agreement to Purchaser.
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:
Seller must promptly remove any of the Relevant Encumbrances that
constitute "Prohibited Encumbrances" (which for purposes of this
Indemnity Agreement shall have the meaning assigned to it in the
Purchase Agreement by reference to a Lease Agreement described therein).
Seller must also pay, indemnify and hold harmless Purchaser, the Title
Company, the Purchaser's successors and assigns as to the Property and
the Title Company's successors and assigns as to any title insurance
policy issued to Purchaser by the Title Company covering the Property
from and against any and all liabilities, damages, claims, actions,
judgments, costs and expenses (including, without limitation, reasonable
attorneys' fees) caused by Seller's failure to promptly remove any of
the Relevant Encumbrances that constitute Prohibited Encumbrances.
Nothing herein shall be construed as an admission by Seller that
any of the Relevant Encumbrances do constitute Prohibited Encumbrances
or as imposing a duty upon Seller to remove or defend against claims
arising out of any Relevant Encumbrances that do not constitute
Prohibited Encumbrances. Nothing herein contained shall limit
Purchaser's rights or remedies under the Purchase Agreement because of
any failure by BNPLC to remove all Prohibited Encumbrances before
conveying the Property.
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO CONFLICT OF LAW
PRINCIPLES.
SELLER, PURCHASER AND THE TITLE COMPANY EACH HEREBY WAIVES ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OTHER DOCUMENT, OR ANY
DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT
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. Purchaser, Seller and the Title Company 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. Purchaser, Seller and the Title Company 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 OR THIS 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.
"Seller"
BNP LEASING CORPORATION, a Delaware corporation
By:____________________________
Lloyd G. Cox, Vice President
"Purchaser"
INFORMIX CORPORATION, a Delaware corporation
By:_____________________________
Name: ______________________
Title: ______________________
"Title Company"
________________________________, a
________________________________
By:
Name: ______________________
Title: ______________________
ANNEX A
Legal Description
REAL PROPERTY in the City of Santa Clara, County of Santa Clara, State
of California, described as follows:
PARCEL ONE:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map
being a resubdivision of lands of Marriott Corporation, Successor by
Merger to Fespar Enterprises, Inc., and Marriott Hotels, Inc., and
Stephen & Mary Dorcich as shown on Record of Survey recorded on January
12, 1977 in Book 386 of Maps, at Page 54, Santa Clara County Records",
which Map was filed for record in the Office of the Recorder of the
County of Santa Clara, State of California, on December 29, 1977 in Book
410 of Maps, at Pages 29 and 30.
PARCEL TWO:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map
being all of Parcel 3, as shown on that certain `Parcel Map', recorded
in Book 410 of Maps, at Pages 29 and 30, Santa Clara County Records",
which Map was filed for Record in the Office of the Recorder of the
County of Santa Clara, State of California, on May 18, 1979 in Book 442
of Maps, at Page 8.
PARCEL THREE:
All of Parcel 6, as shown upon that certain Map entitled, "Parcel Map
being a Resubdivision of lands of Marriott Corporation, Successor by
Merger to Fespar Enterprises, Inc., and Marriott Hotels, Inc., and
Stephen & Mary Dorcich as shown on Record of Survey recorded on January
12, 1977 in Book 386 of Maps, at Page 54, Santa Clara County Records",
which Map was filed for record in the Office of the Recorder of the
County of Santa Clara, State of California, on December 29, 1977 in Book
410 of Maps, at Pages 29 and 30.
PARCEL FOUR:
All of Parcel 1, as shown upon that certain Map entitled, "Parcel Map
being all of Parcel 3, as shown on that certain `Parcel Map', recorded
in Book 410 of Maps, at Pages 29 and 30, Santa Clara County Records",
which Map was filed for record in the Office of the Recorder of the
County of Santa Clara, State of California, on May 18, 1979 in Book 442
of Maps, at Page 8.
ANNEX B
Relevant Encumbrances
[This Annex is to be completed by a list of possible Prohibited
Encumbrances identified by Informix and against which Informix has not
been able to obtain title insurance.]