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EXHIBIT 10.60
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PURCHASE AGREEMENT
(PHASE V - LAND)
BETWEEN
BNP LEASING CORPORATION
("BNPLC")
AND
NETWORK APPLIANCE, INC.
("NAI")
MARCH 1, 2000
(SUNNYVALE, CALIFORNIA)
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TABLE OF CONTENTS
Page
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1. NAI'S OPTIONS AND OBLIGATIONS ON THE DESIGNATED SALE DATE........................... 1
(A) Right to Purchase; Right and Obligation to Remarket.......................... 1
(B) Determinations Concerning Price.............................................. 3
(C) Designation of the Purchaser................................................. 4
(D) Effect of the Purchase Option and NAI's Initial Remarketing Rights and
Obligations on Subsequent Title Encumbrances................................. 4
(E) Security for the Purchase Option and NAI's Initial Remarketing Rights
and Obligations.............................................................. 4
(F) Delivery of Books and Records If BNPLC Retains the Property.................. 4
2. NAI'S RIGHTS AND OPTIONS AFTER THE DESIGNATED SALE DATE............................. 5
(A) NAI's Extended Right to Remarket............................................. 5
(B) Definition of Minimum Extended Remarketing Price............................. 5
(C) BNPLC's Right to Sell........................................................ 6
(D) NAI's Right to Excess Sales Proceeds......................................... 7
(E) Permitted Transfers During NAI's Extended Remarketing Period................. 7
3. TERMS OF CONVEYANCE UPON PURCHASE................................................... 7
4. SURVIVAL AND TERMINATION OF THE RIGHTS AND OBLIGATIONS OF NAI AND BNPLC ............ 8
(A) Status of this Agreement Generally........................................... 8
(B) Intentionally Deleted........................................................ 8
(C) Intentionally Deleted........................................................ 8
(D) Automatic Termination of NAI's Rights........................................ 8
(E) Termination of NAI's Extended Remarketing Rights to Permit a Sale by
BNPLC........................................................................ 9
(F) Payment Only to BNPLC........................................................ 9
(G) Remedies Under the Other Operative Documents................................. 9
(H) Occupancy by NAI Prior to Closing of a Sale.................................. 9
5. SECURITY FOR NAI'S OBLIGATIONS; RETURN OF FUNDS..................................... 9
6. CERTAIN REMEDIES CUMULATIVE......................................................... 10
7. ATTORNEYS' FEES AND LEGAL EXPENSES.................................................. 10
8. ESTOPPEL CERTIFICATE................................................................ 10
9. SUCCESSORS AND ASSIGNS.............................................................. 10
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Exhibits and Schedules
Exhibit A..........................................................Legal Description
Exhibit B.......................Requirements Re: Form of Grant Deed and Ground Lease
Exhibit C................................................Bill of Sale and Assignment
Exhibit D..............................................Acknowledgment and Disclaimer
Exhibit E....................................................Secretary's Certificate
Exhibit F.....................................Certificate Concerning Tax Withholding
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PURCHASE AGREEMENT
(PHASE V - LAND)
This PURCHASE AGREEMENT (PHASE V - LAND) (this "AGREEMENT"), by and
between BNP LEASING CORPORATION, a Delaware corporation ("BNPLC"), and NETWORK
APPLIANCE, INC., a California corporation ("NAI"), is made and dated as of March
1, 2000, the Effective Date. ("EFFECTIVE DATE" and other capitalized terms used
and not otherwise defined in this Agreement are intended to have the meanings
assigned to them in the Common Definitions and Provisions Agreement (Phase V -
Land) executed by BNPLC and NAI contemporaneously with this Agreement. By this
reference, the Common Definitions and Provisions Agreement (Phase V - Land) is
incorporated into and made a part of this Agreement for all purposes.)
RECITALS
Pursuant to the Existing Contract, which covers the Land described in
Exhibit A, BNPLC is acquiring the Land and any appurtenances thereto from Seller
contemporaneously with the execution of this Agreement. Pursuant to the Lease
Agreement (Phase V - Land) executed by BNPLC and NAI contemporaneously with this
Agreement (the "LAND LEASE"), BNPLC is leasing the Land to NAI. (All of BNPLC's
interests, including those created by the documents delivered at the closing
under the Existing Contracts, in the Land and in all other real and personal
property from time to time covered by the Land Lease and included within the
"Property" as defined therein are hereinafter collectively referred to as the
"PROPERTY". The Property does not include the Improvements, it being understood
that the Other Purchase Agreement constitutes a separate agreement providing for
the possible sale of the Improvements and the appurtenances thereto, and only
the Improvements and the appurtenances thereto, from BNPLC to NAI or a third
party designated by NAI.)
NAI and BNPLC have reached agreement upon the terms and conditions upon
which NAI will purchase or arrange for the purchase of the Property, and by this
Agreement they desire to evidence such agreement.
AGREEMENTS
1. NAI'S OPTIONS AND OBLIGATIONS ON THE DESIGNATED SALE DATE.
(A) Right to Purchase; Right and Obligation to Remarket. Whether or not
an Event of Default shall have occurred and be continuing or the Land Lease
shall have been terminated, but subject to Paragraph 4 below:
(1) NAI shall have the right (the "PURCHASE OPTION") to purchase
or cause an Affiliate of NAI to purchase the Property and BNPLC's
interest in Escrowed Proceeds, if any, on the Designated Sale Date for a
cash price equal to the Break Even Price (as defined below).
(2) If neither NAI nor an Affiliate of NAI purchases the
Property and BNPLC's interest in any Escrowed Proceeds on the Designated
Sale Date as provided in the preceding subparagraph 1(A)(1), then NAI
shall have the following rights and obligations (collectively, "NAI'S
INITIAL REMARKETING RIGHTS AND OBLIGATIONS"):
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(a) First, NAI shall have the right (but not the obligation)
to cause an Applicable Purchaser who is not an Affiliate of NAI
to purchase the Property and BNPLC's interest in any Escrowed
Proceeds on the Designated Sale Date for a cash purchase price
(the "THIRD PARTY PRICE") determined as provided below. If,
however, the Break Even Price exceeds the sum of any Third Party
Price tendered or to be tendered to BNPLC by an Applicable
Purchaser and any Supplemental Payment paid by NAI as described
below, then BNPLC may affirmatively elect to decline such tender
from the Applicable Purchaser and to keep the Property and any
Escrowed Proceeds rather than sell to the Applicable Purchaser
pursuant to this subparagraph (a "VOLUNTARY RETENTION OF THE
PROPERTY").
(b) Second, if the Third Party Price actually paid by an
Applicable Purchaser to BNPLC on the Designated Sale Date
exceeds the Break Even Price, NAI shall be entitled to such
excess, subject, however, to BNPLC's right to offset against
such excess any and all sums that are then due from NAI to BNPLC
under the other Operative Documents.
(c) Third, if for any reason whatsoever (including a
Voluntary Retention of the Property or a decision by NAI not to
exercise its right to purchase or cause an Applicable Purchaser
to purchase from BNPLC as described above) neither NAI nor an
Applicable Purchaser pays a net cash price to BNPLC on the
Designated Sale Date equal to or in excess of the Break Even
Price in connection with a sale of the Property and BNPLC's
interest in any Escrowed Proceeds pursuant to this Agreement,
then NAI shall have the obligation to pay to BNPLC on the
Designated Sale Date a supplemental payment (the "SUPPLEMENTAL
PAYMENT") equal to the lesser of (1) the amount by which the
Break Even Price exceeds such net cash price (if any) actually
received by BNPLC on the Designated Sale Date (such excess being
hereinafter called a "DEFICIENCY") or (2) the Maximum
Remarketing Obligation. As used herein, the "MAXIMUM REMARKETING
OBLIGATION" means a dollar amount determined in accordance with
the following provisions:
1) The "MAXIMUM REMARKETING OBLIGATION" will equal the
product of (i) Stipulated Loss Value on the Designated Sale
Date, times (ii) 100% minus the Residual Risk Percentage,
provided that both of the following conditions are
satisfied:
(x) NAI shall not have elected to accelerate
the Designated Sale Date as provided in clause (2)
of the definition of Designated Sale Date in the
Common Definitions and Provisions Agreement
(Phase V - Land).
(y) No Event of Default, other than an Issue
97-1 Non-performance-related Subjective Event of
Default, shall occur on or be continuing on the
Designated Sale Date.
2) If either of the conditions listed in subparagraph
1) preceding are not satisfied, the "MAXIMUM REMARKETING
OBLIGATION" will equal the Break Even Price.
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If any Supplemental Payment or other amount payable to BNPLC pursuant to this
subparagraph 1(A) is not actually paid to BNPLC on the Designated Sale Date, NAI
shall pay interest on the past due amount computed at the Default Rate from the
Designated Sale Date.
(B) Determinations Concerning Price.
(1) Determination of the Break Even Price. As used herein, "BREAK
EVEN Price" means an amount equal, on the Designated Sale Date, to Stipulated
Loss Value, plus all out-of-pocket costs and expenses (including appraisal
costs, withholding taxes (if any) not constituting Excluded Taxes, and
Attorneys' Fees) incurred by BNPLC in connection with any sale of BNPLC's
interests in the Property under this Agreement or in connection with collecting
payments due hereunder, but less the aggregate amounts (if any) of Direct
Payments to Participants and Deposit Taker Losses.
(2) Determination of Third Party Price. The Third Party Price
required of any Applicable Purchaser purchasing from BNPLC under subparagraph
1(A)(2)(a) will be determined as follows:
(a) NAI may give a notice (a "REMARKETING NOTICE") to BNPLC and
to each of the Participants no earlier than one hundred twenty days
before the Designated Sale Date and no later than ninety days before the
Designated Sale Date, specifying an amount as the Third Party Price that
NAI believes in good faith to constitute reasonably equivalent value for
the Property and any Escrowed Proceeds. Once given, a Remarketing Notice
shall not be rescinded or modified without BNPLC's written consent.
(b) If BNPLC believes in good faith that the Third Party Price
specified by NAI in a Remarketing Notice does not constitute reasonably
equivalent value for the Property and any Escrowed Proceeds, BNPLC may
at any time before sixty days prior to the Designated Sale Date respond
to the Remarketing Notice with a notice back to NAI, objecting to the
Third Party Price so specified by NAI. If BNPLC receives a Remarketing
Notice, yet does not respond with an objection as provided in the
preceding sentence, the Third Party Price suggested by NAI in the
Remarketing Notice will be the Third Party Price for purposes of this
Agreement. If, however, BNPLC does respond with an objection as provided
in this subparagraph, and if NAI and BNPLC do not otherwise agree in
writing upon a Third Party Price, then the Third Party Price will be the
lesser of (I) fair market value of the Property, plus the amount of any
Escrowed Proceeds, as determined by a professional independent appraiser
satisfactory to BNPLC, or (II) the Break Even Price.
(c) If for any reason, including an acceleration of the
Designated Sale Date as provided in the definition thereof in the Common
Definitions and Provisions Agreement (Phase V - Land), NAI does not
deliver a Remarketing Notice to BNPLC within the time period specified
above, then the Third Party Price will be an amount determined in good
faith by BNPLC as constituting reasonably equivalent value for the
Property and any Escrowed Proceeds, but in no event more than the Break
Even Price.
If any payment to BNPLC by an Applicable Purchaser hereunder is held to
constitute a preference or a voidable transfer under Applicable Law, or must for
any other reason be refunded by BNPLC to the Applicable Purchaser or to another
Person, and if such payment to BNPLC reduced or had the effect of
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reducing a Supplemental Payment or increased or had the effect of increasing any
excess sale proceeds paid to NAI pursuant to subparagraph 1(A)(2)(b) or pursuant
to subparagraph 2(D), then NAI shall pay to BNPLC upon demand an amount equal to
the reduction of the Supplemental Payment or to the increase of the excess sale
proceeds paid to NAI, as applicable, and this Agreement shall continue to be
effective or shall be reinstated as necessary to permit BNPLC to enforce its
right to collect such amount from NAI.
(C) Designation of the Purchaser. To give BNPLC the opportunity
before the Designated Sale Date to prepare the deed and other documents that
BNPLC must tender pursuant to Paragraph 3 (collectively, the "SALE CLOSING
DOCUMENTS"), NAI must, by a notice to BNPLC given at least seven days prior to
the Designated Sale Date, specify irrevocably, unequivocally and with
particularity the party who will purchase the Property in order to satisfy the
obligations of NAI set forth in subparagraph 1(A). If for any reason NAI fails
to so specify a party who will in accordance with the terms and conditions set
forth herein purchase the Property (be it NAI itself, an Affiliate of NAI or
another Applicable Purchaser), BNPLC shall be entitled to postpone the tender of
the Sale Closing Documents until a date after the Designated Sale Date and not
more than twenty days after NAI finally does so specify a party, but such
postponement will not relieve or postpone the obligation of NAI to make a
Supplemental Payment on the Designated Sale Date as provided in Paragraph
1(A)(2)(c).
(D) Effect of the Purchase Option and NAI's Initial Remarketing
Rights and Obligations on Subsequent Title Encumbrances. Any conveyance of the
Property to NAI or any Applicable Purchaser pursuant to this Paragraph 1(A)
shall cut off and terminate any interest in the Land or other Property claimed
by, through or under BNPLC, including any interest claimed by the Participants
and including any Liens Removable by BNPLC (such as, but not limited to, any
judgment liens established against the Property because of a judgment rendered
against BNPLC and any leasehold or other interests conveyed by BNPLC in the
ordinary course of BNPLC's business), but not including personal obligations of
NAI to BNPLC under the Land Lease or other Operative Documents (including
obligations arising under the indemnities therein). Anyone accepting or taking
any interest in the Property by or through BNPLC after the date of this
Agreement shall acquire such interest subject to the Purchase Option and NAI's
Initial Remarketing Rights and Obligations. Further, NAI and any Applicable
Purchaser shall be entitled to pay any payment required by this Agreement for
the purchase of the Property directly to BNPLC notwithstanding any prior
conveyance or assignment by BNPLC, voluntary or otherwise, of any right or
interest in this Agreement or the Property, and neither NAI nor any Applicable
Purchaser shall be responsible for the proper distribution or application of any
such payments by BNPLC; and any such payment to BNPLC shall discharge the
obligation of NAI to cause such payment to all Persons claiming an interest in
such payment. Contemporaneously with the execution of this Agreement, the
parties shall record a memorandum of this Agreement for purposes of effecting
constructive notice to all Persons of NAI's rights under this Agreement,
including its rights under this subparagraph.
(E) Security for the Purchase Option and NAI's Initial
Remarketing Rights and Obligations. To secure BNPLC's obligation to sell the
Property pursuant to Paragraph 1(A) and to pay any damages to NAI caused by a
breach of such obligations, including any such breach caused by a rejection or
termination of this Agreement in any bankruptcy or insolvency proceeding
instituted by or against BNPLC, as debtor, BNPLC does hereby grant to NAI a lien
and security interest against all rights, title and interests of BNPLC from time
to time in and to the Land and other Property. NAI may
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enforce such lien and security interest judicially after any such breach by
BNPLC, but not otherwise. Contemporaneously with the execution of this
Agreement, NAI and BNPLC will execute a memorandum of this Agreement which is in
recordable form and which specifically references the lien granted in this
subparagraph, and NAI shall be entitled to record such memorandum at any time
prior to the Designated Sale Date.
(F) Delivery of Books and Records If BNPLC Retains the Property.
Unless NAI or its Affiliate or another Applicable Purchaser purchases the
Property pursuant to Paragraph 1(A), promptly after the Designated Sale Date NAI
shall deliver to BNPLC copies of books and records of NAI which will be
necessary or useful to any future owner's or occupant's use of the Property in
the manner permitted by the Land Lease.
2. NAI'S RIGHTS AND OPTIONS AFTER THE DESIGNATED SALE DATE.
(A) NAI's Extended Right to Remarket. During the two years
following the Designated Sale Date ("NAI'S EXTENDED REMARKETING PERIOD"), NAI
shall have the right ("NAI'S EXTENDED REMARKETING RIGHT") to cause an Applicable
Purchaser who is not an Affiliate of NAI to purchase the Property for a cash
purchase price not below the lesser of (I) the Minimum Extended Remarketing
Price (as defined below), or (II) if applicable, the Third Party Target Price
(as defined below) specified in any Third Party Sale Notice (as defined below)
given by BNPLC pursuant to subparagraph 2(C)(2) within the ninety days prior to
the date (the "FINAL SALE DATE") upon which BNPLC receives such purchase price
from the Applicable Purchaser. NAI's Extended Remarketing Right shall, however,
be subject to all of the following conditions:
(1) The Property and BNPLC's interest in Escrowed Proceeds, if
any, shall not have been sold on the Designated Sale Date as provided in
Paragraph 1.
(2) No Voluntary Retention of the Property shall have occurred
as described in subparagraph 1(A)(2)(a).
(3) NAI's Extended Remarketing Right shall not have been
terminated pursuant to subparagraph 4(D) below because of NAI's failure
to make any Supplemental Payment required on the Designated Sale Date.
(4) NAI's Extended Remarketing Right shall not have been
terminated by BNPLC pursuant to subparagraph 4(E) below to facilitate
BNPLC's sale of the Property to a third party in accordance with
subparagraph 2(C).
(5) At least thirty days prior to the Final Sale Date, NAI shall
have notified BNPLC of (x) the date proposed by NAI as the Final Sale
Date (which must be a Business Day), (y) the full legal name of the
Applicable Purchaser and such other information as will be required to
prepare the Sale Closing Documents, and (z) the amount of the purchase
price that the Applicable Purchaser will pay (consistent with the
minimum required pursuant to the other provisions of this subparagraph
2(A)) for the Property.
(B) Definition of Minimum Extended Remarketing Price. As used
herein, "MINIMUM EXTENDED REMARKETING PRICE" means an amount equal to the sum of
the following:
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(1) the amount by which the Break Even Price computed on the
Designated Sale Date exceeds any Supplemental Payment actually paid to
BNPLC on the Designated Sale Date, together with interest on such excess
computed at the Default Rate from the period commencing on the
Designated Sale Date and ending on the Final Sale Date, plus
(2) all out-of-pocket costs and expenses (including withholding
taxes [if any], other than Excluded Taxes, and Attorneys' Fees) incurred
by BNPLC in connection with the sale to the Applicable Purchaser, to the
extent not already included in the computation of Break Even Price, and
plus
(3) the sum of all Impositions, insurance premiums and other
Losses of every kind suffered or incurred by BNPLC or any other
Interested Party with respect to the ownership, operation or maintenance
of the Property on or after the Designated Sale Date (except to the
extent already reimbursed by any lessee of the Property after the
Designated Sale Date), together with interest on such Impositions,
insurance premiums and other Losses computed at the Default Rate from
the date paid or incurred to the Final Sale Date.
If, however, Losses described in the preceding clause (3) consist of claims
against BNPLC or another Interested Party that have not been liquidated prior to
the Final Sale Date (and, thus, such Losses have yet to be fixed in amount as of
the Final Sale Date), then NAI may elect to exclude any such Losses from the
computation of the Minimum Extended Remarketing Price by providing to BNPLC, for
the benefit of BNPLC and other Interested Parties, a written agreement to
indemnify and defend BNPLC and other Interested Parties against such Losses. To
be effective hereunder for purposes of reducing the Minimum Extended Remarketing
Price (and, thus, the Break Even Price), any such written indemnity must be
fully executed and delivered by NAI on or prior to the Final Sale Date, must
include provisions comparable to subparagraphs 5(c)(ii), (iii), (iv) and (v) of
the Land Lease and otherwise must be in form and substance satisfactory to
BNPLC.
(C) BNPLC's Right to Sell. After the Designated Sale Date, if the
Property has not already been sold by BNPLC pursuant to Paragraph 1 or this
Paragraph 2, BNPLC shall have the right to sell the Property or offer the
Property for sale to any third party on any terms believed to be appropriate by
BNPLC in its sole good faith business judgment; provided, however, that so long
as the conditions to NAI's Extended Remarketing Rights specified in subparagraph
2(A) continue to be satisfied:
(1) BNPLC shall not sell the Property to an Affiliate of BNPLC
on terms less favorable than those which BNPLC would require from a
prospective purchaser not an Affiliate of BNPLC;
(2) If BNPLC receives or desires to make a written proposal
(whether in the form of a "letter of intent" or other nonbinding
expression of interest or in the form of a more definitive purchase and
sale agreement) for a sale of the Property to a prospective purchaser (a
"THIRD PARTY SALE PROPOSAL"), and if on the basis of such Third Party
Sale Proposal BNPLC expects to enter into or to pursue negotiations for
a definitive purchase and sale agreement with the prospective purchaser,
then prior to executing any such definitive agreement, BNPLC shall
submit the Third Party Sale Proposal to NAI with a notice (the "THIRD
PARTY SALE NOTICE") explaining that (A) BNPLC is then prepared to accept
a price not below an amount specified in
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such Third Party Sale Notice (the "THIRD PARTY TARGET PRICE") if BNPLC
and the prospective purchaser reach agreement on other terms and
conditions to be incorporated into a definitive purchase and sale
agreement, and (B) NAI's Extended Remarketing Right may be terminated
pursuant to subparagraph 4(E) of this Agreement unless NAI causes an
Applicable Purchaser to consummate a purchase of the Property pursuant
to this Paragraph 2 within ninety days after the date of such Third
Party Sale Notice.
(D) NAI's Right to Excess Sales Proceeds. If the cash price
actually paid by any third party purchasing the Property from BNPLC during NAI's
Extended Remarketing Period, including any price paid by an Applicable Purchaser
purchasing from BNPLC pursuant to this Paragraph 2, exceeds the Minimum Extended
Remarketing Price, then NAI shall be entitled to the excess; provided, that
BNPLC may offset and retain from the excess any and all sums that are then due
and unpaid from NAI to BNPLC under any of the Operative Documents.
(E) Permitted Transfers During NAI's Extended Remarketing Period.
Any "Permitted Transfer" described in clause (6) of the definition thereof in
the Common Definitions and Provisions Agreement (Phase V - Land) to an Affiliate
of BNPLC or that covers BNPLC's entire interest in the Land will be subject to
NAI's Extended Remarketing Right if, at the time of the Permitted Transfer,
NAI's Extended Remarketing Right has not expired or been terminated as provided
herein. Any other Permitted Transfer described in clause (6) of the definition
thereof, however, will not be subject to NAI's Extended Remarketing Right. Thus,
for example, BNPLC's conveyance of a utility easement or space lease more than
thirty days after the Designated Sale Date to a Person not an Affiliate of BNPLC
shall not be subject to NAI's Extended Remarketing Right, though following the
conveyance of the lesser estate, NAI's Extended Remarketing Right may continue
to apply to BNPLC's remaining interest in the Land and any Personal Property.
3. TERMS OF CONVEYANCE UPON PURCHASE. As necessary to consummate any
sale of the Property to NAI or an Applicable Purchaser pursuant to this
Agreement, BNPLC must, subject to any postponement permitted by subparagraph
1(C), promptly after the tender of the purchase price and any other payments to
BNPLC required pursuant to Paragraph 1 or Paragraph 2, as applicable, convey all
of BNPLC's right, title and interest in the Land and other Property to NAI or
the Applicable Purchaser, as the case may be, by BNPLC's execution,
acknowledgment (where appropriate) and delivery of the Sale Closing Documents.
Such conveyance by BNPLC will be subject only to the Permitted Encumbrances and
any other encumbrances that do not constitute Liens Removable by BNPLC. However,
such conveyance shall not include the rights of BNPLC or other Interested
Parties under the indemnities provided in the Operative Documents, including
rights to any payments then due from NAI under the indemnities or that may
become due thereafter because of any expense or liability incurred by BNPLC or
another Interested Party resulting in whole or in part from events or
circumstances occurring or alleged to have occurred before such conveyance. All
costs, both foreseen and unforeseen, of any purchase by NAI or an Applicable
Purchaser hereunder shall be the responsibility of the purchaser. The Sale
Closing Documents used to accomplish such conveyance shall consist of the
following: (1) a Corporation Grant Deed in the form attached as Exhibit B-1 or
Exhibit B-2 or Exhibit B-4, as required by Exhibit B, (2) if required by Exhibit
B, a Ground Lease in the form attached as Exhibit B-3, which NAI or the
Applicable Purchase must execute and return to BNPLC, (3) a Bill of Sale and
Assignment in the form attached as Exhibit C, (4) an Acknowledgment of
Disclaimer of Representations and Warranties, in the form attached as Exhibit D,
which NAI or the Applicable Purchaser must execute and
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return to BNPLC, (5) a Secretary's Certificate in the form attached as Exhibit
E, and (6) a certificate concerning tax withholding in the form attached as
Exhibit F. If for any reason BNPLC fails to tender the Sale Closing Documents as
required by this Paragraph 3, BNPLC may cure such refusal at any time before
thirty days after receipt of a demand for such cure from NAI.
4. SURVIVAL AND TERMINATION OF THE RIGHTS AND OBLIGATIONS OF NAI AND
BNPLC.
(A) Status of this Agreement Generally. Except as expressly
provided herein, this Agreement shall not terminate; nor shall NAI have any
right to terminate this Agreement; nor shall NAI be entitled to any reduction of
the Break Even Price, any Deficiency, the Maximum Remarketing Obligation, any
Supplemental Payment or the Minimum Extended Remarketing Price hereunder; nor
shall the obligations of NAI to BNPLC under Paragraph 1 be affected, by reason
of (i) any damage to or the destruction of all or any part of the Property from
whatever cause (though it is understood that NAI will receive any remaining
Escrowed Proceeds yet to be applied as provided in the Land Lease that may
result from such damage if NAI purchases the Property and the Escrowed Proceeds
as herein provided), (ii) the taking of or damage to the Property or any portion
thereof by eminent domain or otherwise for any reason (though it is understood
that NAI will receive any remaining Escrowed Proceeds yet to be applied as
provided in the Land Lease that may result from such taking or damage if NAI
purchases the Property and the Escrowed Proceeds as herein provided), (iii) the
prohibition, limitation or restriction of NAI's use of all or any portion of the
Property or any interference with such use by governmental action or otherwise,
(iv) any eviction of NAI or any party claiming under NAI by paramount title or
otherwise, (v) NAI's prior acquisition or ownership of any interest in the
Property, (vi) any default on the part of BNPLC under this Agreement, the Land
Lease or any other agreement to which BNPLC is a party, or (vii) any other
cause, whether similar or dissimilar to the foregoing, any existing or future
law to the contrary notwithstanding. It is the intention of the parties hereto
that the obligations of NAI to make payment to BNPLC hereunder shall be separate
and independent covenants and agreements from BNPLC's obligations under this
Agreement or any other agreement between BNPLC and NAI; provided, however, that
nothing in this subparagraph shall excuse BNPLC from its obligation to tender
the Sale Closing Documents in substantially the form attached hereto as exhibits
when required by Paragraph 3. Further, nothing in this subparagraph shall be
construed as a waiver by NAI of any right NAI may have at law or in equity to
the following remedies, whether because of BNPLC's failure to remove a Lien
Removable by BNPLC or because of any other default by BNPLC under this
Agreement: (i) the recovery of monetary damages, (ii) injunctive relief in case
of the violation, or attempted or threatened violation, by BNPLC of any of the
express covenants, agreements, conditions or provisions of this Agreement which
are binding upon BNPLC, or (iii) a decree compelling performance by BNPLC of any
of the express covenants, agreements, conditions or provisions of this Agreement
which are binding upon BNPLC.
(B) Intentionally Deleted.
(C) Intentionally Deleted.
(D) Automatic Termination of NAI's Rights. Without limiting
BNPLC's right to enforce NAI's obligation to pay any Supplemental Payment or
other amounts required by this Agreement, the rights of NAI (to be distinguished
from the obligations of NAI) included in NAI's Initial Remarketing Rights and
Obligations, the Purchase Option and NAI's Extended Remarketing Rights shall all
terminate automatically if NAI shall fail to pay the full amount of any
Supplemental Payment
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required by subparagraph 1(A)(2)(c) on the Designated Sale Date or if BNPLC
shall elect a Voluntary Retention of the Property as provided in subparagraph
1(A)(2)(a). However, notwithstanding anything in this subparagraph to the
contrary, even after a failure to pay any required Supplemental Payment on the
Designated Sale Date, NAI may nonetheless tender to BNPLC the full Break Even
Price and all amounts then due under the Operative Documents, together with
interest on the total Break Even Price computed at the Default Rate from the
Designated Sale Date to the date of tender, on any Business Day within thirty
days after the Designated Sale Date, and if presented with such a tender within
thirty days after the Designated Sale Date, BNPLC must accept it and promptly
thereafter deliver any Escrowed Proceeds and the Sale Closing Documents listed
in Paragraph 3 to NAI.
(E) Termination of NAI's Extended Remarketing Rights to Permit a
Sale by BNPLC. At any time more than ninety days after BNPLC has delivered a
Third Party Sale Notice to NAI as described in subparagraph 2(C)(2), BNPLC may
terminate NAI's Extended Remarketing Rights contemporaneously with the
consummation of a sale of the Property by BNPLC to any third party (be it the
prospective purchaser named in the Third Party Sale Notice or another third
party) at a price equal to or in excess of the Third Party Target Price
specified in the Third Party Sale Notice, so as to permit the sale of the
Property unencumbered by NAI's Extended Remarketing Rights.
(F) Payment Only to BNPLC. All amounts payable under this
Agreement by NAI and, if applicable, by an Applicable Purchaser must be paid
directly to BNPLC, and no payment to any other party shall be effective for the
purposes of this Agreement. In addition to the payments required under
subparagraph 1(A), on the Designated Sale Date NAI must pay all amounts then due
to BNPLC under the Land Lease or other Operative Documents.
(G) Remedies Under the Other Operative Documents. No repossession
of or re-entering upon the Property or exercise of any other remedies available
to BNPLC under the Land Lease or other Operative Documents shall terminate NAI's
rights or obligations hereunder, all of which shall survive BNPLC's exercise of
remedies under the other Operative Documents. NAI acknowledges that the
consideration for this Agreement is separate and independent of the
consideration for the Land Lease and the Closing Certificate, and NAI's
obligations hereunder shall not be affected or impaired by any event or
circumstance that would excuse NAI from performance of its obligations under
such other Operative Documents.
(H) Occupancy by NAI Prior to Closing of a Sale. Prior to the
closing of any sale of the Property to NAI or an Applicable Purchaser hereunder,
NAI's occupancy of the Land and its use of the Property shall continue to be
subject to the terms and conditions of the Land Lease, including the terms
setting forth NAI's obligation to pay rent, prior to any termination or
expiration of the Land Lease pursuant to its express terms and conditions.
5. SECURITY FOR NAI'S OBLIGATIONS; RETURN OF FUNDS. NAI's obligations
under this Agreement are secured by the Pledge Agreement, reference to which is
hereby made for a description of the Collateral covered thereby and the rights
and remedies provided to BNPLC thereby. Although the collateral agent appointed
for BNPLC as provided in the Pledge Agreement shall be entitled to hold all
Collateral as security for the full and faithful performance by NAI of NAI's
covenants and obligations under this Agreement, the Collateral shall not be
considered an advance payment of the Break Even Price or any Supplemental
Payment or a measure of BNPLC's damages should NAI breach this Agreement. If NAI
does breach this Agreement and fails to cure the same within any time specified
9
13
herein for the cure, BNPLC may, from time to time, without prejudice to any
other remedy and without notice to NAI, require the collateral agent to
immediately apply the proceeds of any disposition of the Collateral (and any
cash included in the Collateral) to amounts then due hereunder from NAI. If by a
Permitted Transfer BNPLC conveys its interest in the Property before the
Designated Sale Date, BNPLC may also assign BNPLC's interest in the Collateral
to the transferee. BNPLC shall be entitled to return any Collateral not sold or
used to satisfy the obligations secured by the Pledge Agreement directly to NAI
notwithstanding any prior actual or attempted conveyance or assignment by NAI,
voluntary or otherwise, of any right to receive the same; neither BNPLC nor the
collateral agent named in the Pledge Agreement shall be responsible for the
proper distribution or application by NAI of any such Collateral returned to
NAI; and any such return of Collateral to NAI shall discharge any obligation of
BNPLC to deliver such Collateral to all Persons claiming an interest in the
Collateral. Further, BNPLC shall be entitled to deliver any Escrowed Proceeds it
holds on the Designated Sale Date directly to NAI or to any Applicable Purchaser
purchasing BNPLC's interest in the Property and the Escrowed Proceeds pursuant
to this Agreement notwithstanding any prior actual or attempted conveyance or
assignment by NAI, voluntary or otherwise, of any right to receive the same;
BNPLC shall not be responsible for the proper distribution or application by NAI
or any Applicable Purchaser of any such Escrowed Proceeds paid over to NAI or
the Applicable Purchaser; and any such payment of Escrowed Proceeds to NAI or an
Applicable Purchaser shall discharge any obligation of BNPLC to deliver the same
to all Persons claiming an interest therein.
6. CERTAIN REMEDIES CUMULATIVE. No right or remedy herein conferred upon
or reserved to BNPLC is intended to be exclusive of any other right or remedy
BNPLC has with respect to the Property, and each and every right and remedy
shall be cumulative and in addition to any other right or remedy given hereunder
or now or hereafter existing at law or in equity or by statute. In addition to
other remedies available under this Agreement, either party shall be entitled,
to the extent permitted by applicable law, to a decree compelling performance of
any of the other party's agreements hereunder.
7. ATTORNEYS' FEES AND LEGAL EXPENSES. If either party to this Agreement
commences any legal action or other proceeding to enforce any of the terms of
this Agreement, or because of any breach by the other party or dispute
hereunder, the party prevailing in such action or proceeding shall be entitled
to recover from the other party all Attorneys' Fees incurred in connection
therewith, whether or not such controversy, claim or dispute is prosecuted to a
final judgment. Any such Attorneys' Fees incurred by either party in enforcing a
judgment in its favor under this Agreement shall be recoverable separately from
such judgment, and the obligation for such Attorneys' Fees is intended to be
severable from other provisions of this Agreement and not to be merged into any
such judgment.
8. ESTOPPEL CERTIFICATE. Upon request by BNPLC, NAI shall execute,
acknowledge and deliver a written statement certifying that this Agreement is
unmodified and in full effect (or, if there have been modifications, that this
Agreement is in full effect as modified, and setting forth such modification)
and either stating that no default exists hereunder or specifying each such
default of which NAI has knowledge. Any such statement may be relied upon by any
Participant or prospective purchaser or assignee of BNPLC with respect to the
Property.
9. SUCCESSORS AND ASSIGNS. The terms, provisions, covenants and
conditions hereof shall be binding upon NAI and BNPLC and their respective
permitted successors and assigns and shall inure to the benefit of NAI and BNPLC
and all permitted transferees, mortgagees, successors and assignees of NAI and
BNPLC with respect to the Property; provided, that (A) the rights of BNPLC
hereunder shall
10
14
not pass to NAI or any Applicable Purchaser or any subsequent owner claiming
through NAI or an Applicable Purchaser, (B) BNPLC shall not assign this
Agreement or any rights hereunder except pursuant to a Permitted Transfer, and
(C) NAI shall not assign this Agreement or any rights hereunder without the
prior written consent of BNPLC.
[Signature pages follow.]
11
15
IN WITNESS WHEREOF, NAI and BNPLC have caused this Purchase Agreement
(Phase V - Land) to be executed as of March 1, 2000.
"NAI"
NETWORK APPLIANCE, INC.
By:
----------------------------------------
Jeffry R. Allen, Chief Financial Officer
12
16
[Continuation of signature pages to Purchase Agreement (Phase V - Land) dated to
be effective March 1, 2000.]
"BNPLC"
BNP LEASING CORPORATION
By:
-------------------------------------
Lloyd G. Cox, Vice President
13
17
EXHIBIT A
LEGAL DESCRIPTION
The real property located in the City of Sunnyvale, County of Santa Clara, State
of California, described as follows:
All of Parcel 1 as shown upon that certain map entitled, "Parcel Map lying
within the City of Sunnyvale, being a resubdivision of Parcel 5, as shown on Map
recorded in Book 413 of Maps, at Page 53, Santa Clara County Records, City of
Sunnyvale, Santa Clara County, California," which Map was filed for record in
the office of the Recorder of the County of Santa Clara, State of California on
July 18, 1978 in Book 423 of Maps, at Page 13.
Excepting therefrom, the following described property granted to the Santa Clara
County Transit District March 28, 1997 under Series No. 13654560:
All of that certain real property situated in the City of Sunnyvale, County of
Santa Clara, State of California, and being a portion of Parcel 1, as said
Parcel 1 is shown on that certain Parcel Map filed in Book 423 of Maps, Page 13,
Records of Santa Clara County, California, and more particularly described as
follows:
Beginning at the point of intersection of the centerlines of Fair Oaks Avenue
and Crossman Road as said Avenue and Road are shown on said Parcel Map; thence
Northerly along said centerline of Crossman Road, North 18 degrees 37' 09" East
82.70 feet; thence Easterly at a right angle from said centerline of Crossman
Road, 71 degrees 22' 51" East 54.89 feet to a point on a curve on the Easterly
line of said Crossman Road; thence from a tangent bearing of South 9 degrees 32'
30" West along said Easterly line of Crossman Road and along said curve concave
Easterly with a radius of 108.99 feet through a central angle of 11 degrees 34'
1" in an arc length of 22.00 feet the true point of this description; thence
continuing Southerly and Southeasterly along said Easterly line of Crossman Road
the following four (4) described courses: (1) continuing along said curve (from
a tangent bearing of South 2 degrees 01' 41" East) concave Easterly with a
radius of 108.99 feet through a central angle of 23 degrees 25' 59" an arc
length of 44.58 feet; (2) South 25 degrees 27' 40" East 79.86 feet to a curve;
(3) Southeasterly along said curve concave Northeasterly with a radius of 108.99
feet, through a central angle of 9 degrees 00' 00" in an arc length of 17.12
feet; (4) South 34 degrees 27' 40" East 23.31 feet to the Northeasterly line of
said Fair Oaks Avenue; thence Southeasterly along said Northeasterly line of
Fair Oaks Avenue South 50 degrees 50' 59" East 139.04 feet; thence leaving said
Northeasterly line of Fair Oaks Avenue North 34 degrees 36' 17" West 57.40 feet;
thence North 50 degrees 50' 13" West 32.20 feet; thence North 34 degrees 36' 17"
West 205.73 feet to the true point of beginning.
18
EXHIBIT B
REQUIREMENTS RE: FORM OF GRANT DEED AND GROUND LEASE
The form of deed to be used to convey BNPLC's interest in the Land to NAI or an
Applicable Purchaser will depend upon whether BNPLC's interest in the
Improvements has been or is being conveyed at the same time to the same party.
If BNPLC's interests in BOTH the Land and the Improvements are to be conveyed to
NAI or an Applicable Purchaser at the same time, because a sale under this
Purchase Agreement and a sale under the Other Purchase Agreement (covering the
Improvements) are being consummated at the same time and to the same party, then
the one deed in form attached as Exhibit B-1 will be used to convey both.
If, however, a sale of BNPLC's interest in the Improvements pursuant to the
Other Purchase Agreement has not been consummated before, and is not being
consummated contemporaneously with the sale of BNPLC's interest in the Land
under this Agreement, then BNPLC's interest in the Land will be conveyed by a
deed in the from attached as Exhibit B-2, and BNPLC and the grantee under such
deed shall, as a condition to BNPLC's obligation to deliver the deed, execute
and deliver a Ground Lease covering the Land in the form attached hereto as
Exhibit B-3.
Finally, BNPLC's interest in the Land will be conveyed by a deed in the from
attached as Exhibit B-4 if BNPLC's interest in the Improvements has been sold
pursuant to the Other Purchase Agreement before a sale of BNPLC's interest in
the Land under this Agreement, or if BNPLC's interest in the Improvements is
being sold contemporaneously with a sale of BNPLC's interest in the Land, but
the purchaser of the Improvements is not the same as the purchaser of the Land.
19
EXHIBIT B-1
CORPORATION GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
NAME: [NAI or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE: ___________________
Zip: ___________________
MAIL TAX STATEMENTS TO:
NAME: [NAI or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE: ___________________
Zip: ___________________
CORPORATION GRANT DEED
(Covering Land and Improvements)
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, BNP
LEASING CORPORATION, a Delaware corporation ("Grantor"), hereby grants to [NAI
or the Applicable Purchaser] ("Grantee") all of Grantor's interest in the land
situated in Sunnyvale, California, described on Annex A attached hereto and
hereby made a part hereof and all improvements on such land, together with the
any other right, title and interest of Grantor in and to any easements,
rights-of-way, privileges and other rights appurtenant to such land or the
improvements thereon; provided, however, that this grant is subject to the
encumbrances described on Annex B (the "Permitted Encumbrances"). Grantee hereby
assumes the obligations (including any personal obligations) of Grantor, if any,
created by or under, and agrees to be bound by the terms and conditions of, the
Permitted Encumbrances to the extent that the same concern or apply to the land
or improvements conveyed by this deed.
20
BNP LEASING CORPORATION
Date: As of ___________ By ___________________________________
Its
Attest___________________________________
Its
[NAI or Applicable Purchaser]
Date: As of ___________ By ___________________________________
Its
Attest___________________________________
Its
STATE OF ____________ )
) SS
COUNTY OF ___________ )
On ___________________ before me, , personally appeared and , personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
persons whose names are subscribed to the within instrument and acknowledged to
me that they executed the same in their authorized capacities, and that by their
signatures on the instrument the person, or the entity upon behalf of which the
persons acted, executed the instrument.
WITNESS my hand and official seal.
Signature ___________________
EXHIBIT B-1 - PAGE 2
21
STATE OF ____________ )
) SS
COUNTY OF ___________ )
On ___________________ before me, , personally appeared and , personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
persons whose names are subscribed to the within instrument and acknowledged to
me that they executed the same in their authorized capacities, and that by their
signatures on the instrument the person, or the entity upon behalf of which the
persons acted, executed the instrument.
WITNESS my hand and official seal.
Signature ____________________
EXHIBIT B-1 - PAGE 3
22
ANNEX A
LEGAL DESCRIPTION
[DRAFTING NOTE: TO THE EXTENT THAT THE "LAND" COVERED BY THE LAND LEASE CHANGES
FROM TIME TO TIME BECAUSE OF ADJUSTMENTS FOR WHICH NAI REQUESTS BNPLC'S CONSENT
OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY SUCH
CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING NOTE"
WILL BE DELETED BEFORE THE DEED TO WHICH THIS DESCRIPTION IS ATTACHED IS
ACTUALLY EXECUTED AND DELIVERED.]
The real property located in the City of Sunnyvale, County of Santa Clara, State
of California, described as follows:
All of Parcel 1 as shown upon that certain map entitled, "Parcel Map lying
within the City of Sunnyvale, being a resubdivision of Parcel 5, as shown on Map
recorded in Book 413 of Maps, at Page 53, Santa Clara County Records, City of
Sunnyvale, Santa Clara County, California," which Map was filed for record in
the office of the Recorder of the County of Santa Clara, State of California on
July 18, 1978 in Book 423 of Maps, at Page 13.
Excepting therefrom, the following described property granted to the Santa Clara
County Transit District March 28, 1997 under Series No. 13654560:
All of that certain real property situated in the City of Sunnyvale, County of
Santa Clara, State of California, and being a portion of Parcel 1, as said
Parcel 1 is shown on that certain Parcel Map filed in Book 423 of Maps, Page 13,
Records of Santa Clara County, California, and more particularly described as
follows:
Beginning at the point of intersection of the centerlines of Fair Oaks Avenue
and Crossman Road as said Avenue and Road are shown on said Parcel Map; thence
Northerly along said centerline of Crossman Road, North 18 degrees 37' 09" East
82.70 feet; thence Easterly at a right angle from said centerline of Crossman
Road, 71 degrees 22' 51" East 54.89 feet to a point on a curve on the Easterly
line of said Crossman Road; thence from a tangent bearing of South 9 degrees 32'
30" West along said Easterly line of Crossman Road and along said curve concave
Easterly with a radius of 108.99 feet through a central angle of 11 degrees 34'
1" in an arc length of 22.00 feet the true point of this description; thence
continuing Southerly and Southeasterly along said Easterly line of Crossman Road
the following four (4) described courses: (1) continuing along said curve (from
a tangent bearing of South 2 degrees 01' 41" East) concave Easterly with a
radius of 108.99 feet through a central angle of 23 degrees 25' 59" an arc
length of 44.58 feet; (2) South 25 degrees 27' 40" East 79.86 feet to a curve;
(3) Southeasterly along said curve concave Northeasterly with a radius of 108.99
feet, through a central angle of 9 degrees 00' 00" in an arc length of 17.12
feet; (4) South 34 degrees 27' 40" East 23.31 feet to the Northeasterly line of
said Fair Oaks Avenue; thence Southeasterly along said Northeasterly line of
Fair Oaks Avenue South 50 degrees 50' 59" East 139.04 feet; thence leaving said
Northeasterly line of Fair Oaks Avenue North 34 degrees 36' 17" West 57.40 feet;
thence North 50 degrees 50' 13" West 32.20 feet; thence North 34 degrees 36' 17"
West 205.73 feet to the true point of beginning.
EXHIBIT B-1 - PAGE 4
23
ANNEX B
PERMITTED ENCUMBRANCES
[DRAFTING NOTE: TO THE EXTENT THAT ENCUMBRANCES (OTHER THAN "LIENS REMOVABLE BY
BNPLC") ARE IDENTIFIED IN ADDITION TO THOSE DESCRIBED BELOW, SUCH ADDITIONAL
ENCUMBRANCES WILL BE ADDED TO THE LIST BELOW AND THIS "DRAFTING NOTE" WILL BE
DELETED BEFORE THIS DEED IS ACTUALLY EXECUTED AND DELIVERED BY BNPLC. SUCH
ADDITIONAL ENCUMBRANCES WOULD INCLUDE ANY NEW ENCUMBRANCES APPROVED BY BNPLC AS
"PERMITTED ENCUMBRANCES" UNDER THE LAND LEASE OR THE OTHER LEASE AGREEMENT FROM
TIME TO TIME OR BECAUSE OF NAI'S REQUEST FOR BNPLC'S CONSENT OR APPROVAL TO AN
ADJUSTMENT.]
This conveyance is subject to all encumbrances not constituting a "Lien
Removable by BNPLC" (as defined in the Common Definitions and Provisions
Agreement (Phase V - Land) incorporated by reference into the Lease Agreement
(Phase V - Land) referenced in the last item of the list below), including the
following matters to the extent the same are still valid and in force:
1. TAXES for the fiscal year 2000-2001, a lien not yet due or payable.
2. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
3. EASEMENT for the purposes stated herein and incidents thereto
Purpose : 16-foot slope easement
Granted to : City of Sunnyvale, a municipal corporation of the State of California
Recorded : October 9, 1964 in Book 6695, Page 389, Official Records
Affects : Southerly 16 feet abutting Moffett Park Drive, as shown on a survey
at entitled "ALTA/ACSM Land Title Surveyed for
Network Appliance, 1260 Crossman Avenue," dated
January 21, 2000, prepared by Kier & Wright
Civil Engineers and Surveyors, Job No. 99274.
4. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Slope easement
Granted to : City of Sunnyvale, a municipal corporation of the State of California
Recorded : October 9, 1964 in Book 6695, Page 409, Official Records
Affects : Northwesterly 16 feet abutting Crossman Road, as shown on a survey
plat entitled "ALTA/ACSM Land Title Surveyed
for Network Appliance, 1260 Crossman Avenue,"
dated January 21, 2000, prepared by Kier &
Wright Civil Engineers and Surveyors, Job No.
99274.
5. EASEMENT for the purposes stated herein and incidents
thereto
Purpose : Public Utilities Easement
Granted to : City of Sunnyvale, a municipal corporation of the State of California
Recorded : October 9, 1964 in Book 6695, Page 457, Official Records
Affects : Northwesterly 7 feet abutting Crossman Road, as shown on a survey
EXHIBIT B-1 - PAGE 5
24
plat entitled "ALTA/ACSM Land Title Surveyed for Network Appliance,
1260 Crossman Avenue," dated January 21, 2000, prepared by Kier & Wright
Civil Engineers and Surveyors, Job No. 99274.
6. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public Utility Easement
Granted to : City of Sunnyvale, a municipal corporation of the State of California
Recorded : September 24, 1965 in Book 7116, Page 489, Official Records,
Affects : Southerly 7 feet abutting Moffett Park Drive, as shown on a survey
plat entitled "ALTA/ACSM Land Title Surveyed
for Network Appliance, 1260 Crossman Avenue,"
dated January 21, 2000, prepared by Kier &
Wright Civil Engineers and Surveyors, Job No.
99274.
7. AGREEMENT on the terms and conditions contained therein
For : Construction of Storm Drainage Facilities
Between : City of Sunnyvale
And : Moffett Park Associates, a joint venture partnership
Recorded : November 2, 1966 in Book 7552, Page 688, Official Records
An amendment to said agreement recorded in an instrument recorded April 21, 1967
in Book 7700, Page 638, Official Records.
An amendment to said agreement recorded in an instrument recorded February 23,
1968 in Book 8034, Page 631, Official Records.
Notice affecting said real property-waiver of construction credit dated
September 22, 1976 has been executed by Moffett Park Association (MPA) a joint
venture partnership, recorded September 28, 1976 in Book C307, Page 346,
Official Records.
8. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public Utilities Easement
Recorded : July 18, 1978 in Book 423 of Maps, at page 13
Affects : Northwesterly 9 feet, Southwesterly 15 feet from the Southernmost 9
feet of said land, as shown on a survey plat entitled "ALTA/ACSM
Land Title Surveyed for Network Appliance, 1260 Crossman
Avenue," dated January 21, 2000, prepared by Kier & Wright Civil
Engineers and Surveyors, Job No. 99274.
9. Limitations, covenants, conditions, restrictions, reservations,
exceptions, terms, liens or charges, but deleting any covenant,
condition or restriction indicating a preference, limitation or
discrimination based on race, color, religion, sex, handicap, familial
status, or national origin to the extent such covenants, conditions or
restrictions violate 42 U.S.C. 3604(c), contained in the document
recorded March 8, 1978 in Book D511, Page 396, Official Records.
And re-recorded December 12, 1978 in Book E157, Page 147, Official
Records.
EXHIBIT B-1 - PAGE 6
25
EXHIBIT B-2
CORPORATION GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
NAME: [NAI or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE: ___________________
Zip: ___________________
MAIL TAX STATEMENTS TO:
NAME: [NAI or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE: ___________________
Zip: ___________________
CORPORATION GRANT DEED
(Covering Land but not the Improvements On the Land)
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, BNP
LEASING CORPORATION, a Delaware corporation ("Grantor"), hereby grants to [NAI
or the Applicable Purchaser] ("Grantee") all of Grantor's interest in the land
situated in Sunnyvale, California, described on Annex A attached hereto and
hereby made a part hereof (the "Land"), together with the any other right, title
and interest of Grantor in and to any easements, rights-of-way, privileges and
other rights appurtenant to the Land; provided, however, that this grant is
subject to the encumbrances described on Annex B (the "Permitted Encumbrances")
and any reservations or qualifications set forth below. Grantee hereby assumes
the obligations (including any personal obligations) of Grantor, if any, created
by or under, and agrees to be bound by the terms and conditions of, the
Permitted Encumbrances to the extent that the same concern or apply to the Land.
Although this deed conveys Grantor's interest in the Land itself, this deed does
not convey any interest in any buildings or other improvements on the Land
(collectively, "Improvements") or any rights or easements appurtenant to
Improvements. Grantor retains and reserves all right, title and interest of
Grantor in and to Improvements and any rights and easements appurtenant to
Improvements, together with a leasehold estate in and to the Land and any rights
and easements appurtenant to the Land, which leasehold estate will permit the
construction, maintenance and use of Improvements by Grantor and Grantor's
successors and assigns on and subject to the terms and conditions set forth in
the Ground Lease dated of even date herewith, executed by Grantee, as lessor,
and Grantor, as lessee. Reference is made to such Ground Lease, all the terms
and conditions of which are incorporated into this deed as if set forth herein.
26
BNP LEASING CORPORATION
Date: As of ___________ By __________________________________
Its
Attest_________________________________
Its
[NAI or Applicable Purchaser]
Date: As of ___________ By __________________________________
Its
Attest_________________________________
Its
STATE OF ____________ )
) SS
COUNTY OF ___________ )
On ___________________ before me, , personally appeared and , personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
persons whose names are subscribed to the within instrument and acknowledged to
me that they executed the same in their authorized capacities, and that by their
signatures on the instrument the person, or the entity upon behalf of which the
persons acted, executed the instrument.
WITNESS my hand and official seal.
Signature ____________________
EXHIBIT B-2 - PAGE 2
27
STATE OF ____________ )
) SS
COUNTY OF ___________ )
On ___________________ before me, ___________, personally appeared
_________ and _________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the persons whose names are subscribed to the
within instrument and acknowledged to me that they executed the same in their
authorized capacities, and that by their signatures on the instrument the
person, or the entity upon behalf of which the persons acted, executed the
instrument.
WITNESS my hand and official seal.
Signature ____________________
EXHIBIT B-2 - PAGE 3
28
ANNEX A
LEGAL DESCRIPTION
[DRAFTING NOTE: TO THE EXTENT THAT THE "LAND" COVERED BY THE LAND LEASE CHANGES
FROM TIME TO TIME BECAUSE OF ADJUSTMENTS FOR WHICH NAI REQUESTS BNPLC'S CONSENT
OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY SUCH
CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING NOTE"
WILL BE DELETED BEFORE THE DEED TO WHICH THIS DESCRIPTION IS ATTACHED IS
ACTUALLY EXECUTED AND DELIVERED.]
The real property located in the City of Sunnyvale, County of Santa Clara, State
of California, described as follows:
All of Parcel 1 as shown upon that certain map entitled, "Parcel Map lying
within the City of Sunnyvale, being a resubdivision of Parce 5, as shown on Map
recorded in Book 413 of Maps, at Page 53, Santa Clara County Records, City of
Sunnyvale, Santa Clara County, California," which Map was filed for record in
the office of the Recorder of the County of Santa Clara, State of California on
July 18, 1978 in Book 423 of Maps, at Page 13.
Excepting therefrom, the following described property granted to the Santa Clara
County Transit District March 28, 1997 under Series No. 13654560:
All of that certain real property situated in the City of Sunnyvale, County of
Santa Clara, State of California, and being a portion of Parcel 1, as said
Parcel 1 is shown on that certain Parcel Map filed in Book 423 of Maps, Page 13,
Records of Santa Clara County, California, and more particularly described as
follows:
Beginning at the point of intersection of the centerlines of Fair Oaks Avenue
and Crossman Road as said Avenue and Road are shown on said Parcel Map; thence
Northerly along said centerline of Crossman Road, North 18 degrees 37' 09" East
82.70 feet; thence Easterly at a right angle from said centerline of Crossman
Road, 71 degrees 22' 51" East 54.89 feet to a point on a curve on the Easterly
line of said Crossman Road; thence from a tangent bearing of South 9 degrees 32'
30" West along said Easterly line of Crossman Road and along said curve concave
Easterly with a radius of 108.99 feet through a central angle of 11 degrees34'
1" in an arc length of 22.00 feet the true point of this description; thence
continuing Southerly and Southeasterly along said Easterly line of Crossman Road
the following four (4) described courses: (1) continuing along said curve (from
a tangent bearing of South 2 degrees 01' 41" East) concave Easterly with a
radius of 108.99 feet through a central angle of 23 degrees 25' 59" an arc
length of 44.58 feet; (2) South 25 degrees 27' 40" East 79.86 feet to a curve;
(3) Southeasterly along said curve concave Northeasterly with a radius of 108.99
feet, through a central angle of 9 degrees 00' 00" in an arc length of 17.12
feet; (4) South 34 degrees 27' 40" East 23.31 feet to the Northeasterly line of
said Fair Oaks Avenue; thence Southeasterly along said Northeasterly line of
Fair Oaks Avenue South 50 degrees 50' 59" East 139.04 feet; thence leaving said
Northeasterly line of Fair Oaks Avenue North 34 degrees 36' 17" West 57.40 feet;
thence North 50 degrees 50' 13" West 32.20 feet; thence North 34 degrees 36' 17"
West 205.73 feet to the true point of beginning.
EXHIBIT B-2 - PAGE 4
29
ANNEX B
PERMITTED ENCUMBRANCES
[DRAFTING NOTE: TO THE EXTENT THAT ENCUMBRANCES (OTHER THAN "LIENS REMOVABLE BY
BNPLC") ARE IDENTIFIED IN ADDITION TO THOSE DESCRIBED BELOW, SUCH ADDITIONAL
ENCUMBRANCES WILL BE ADDED TO THE LIST BELOW AND THIS "DRAFTING NOTE" WILL BE
DELETED BEFORE THIS DEED IS ACTUALLY EXECUTED AND DELIVERED BY BNPLC. SUCH
ADDITIONAL ENCUMBRANCES WOULD INCLUDE ANY NEW ENCUMBRANCES APPROVED BY BNPLC AS
"PERMITTED ENCUMBRANCES" UNDER THE LAND LEASE OR THE OTHER LEASE AGREEMENT FROM
TIME TO TIME OR BECAUSE OF NAI'S REQUEST FOR BNPLC'S CONSENT OR APPROVAL TO AN
ADJUSTMENT.]
This conveyance is subject to all encumbrances not constituting a "Lien
Removable by BNPLC" (as defined in the Common Definitions and Provisions
Agreement (Phase V - Land) incorporated by reference into the Lease Agreement
(Phase V - Land) referenced in the last item of the list below), including the
following matters to the extent the same are still valid and in force:
1. TAXES for the fiscal year 2000-2001, a lien not yet due or payable.
2. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
3. EASEMENT for the purposes stated herein and incidents thereto
Purpose : 16-foot slope easement
Granted to : City of Sunnyvale, a municipal corporation of the State of California
Recorded : October 9, 1964 in Book 6695, Page 389, Official Records
Affects : Southerly 16 feet abutting Moffett Park Drive, as shown on a survey plat
entitled "ALTA/ACSM Land Title Surveyed for Network
Appliance, 1260 Crossman Avenue," dated January 21,
2000, prepared by Kier & Wright Civil Engineers and
Surveyors, Job No. 99274.
4. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Slope easement
Granted to : City of Sunnyvale, a municipal corporation of the State of California
Recorded : October 9, 1964 in Book 6695, Page 409, Official Records
Affects : Northwesterly 16 feet abutting Crossman Road, as shown on a survey plat
entitled "ALTA/ACSM Land Title Surveyed for Network Appliance, 1260
Crossman Avenue," dated January 21, 2000, prepared by Kier & Wright
Civil Engineers and Surveyors, Job No. 99274.
5. EASEMENT for the purposes stated herein and incidents
thereto
Purpose : Public Utilities Easement
Granted to : City of Sunnyvale, a municipal corporation of the State of California
Recorded : October 9, 1964 in Book 6695, Page 457, Official Records
EXHIBIT B-2 - PAGE 5
30
Affects : Northwesterly 7 feet abutting Crossman Road, as shown on a survey
plat entitled "ALTA/ACSM Land Title Surveyed for Network Appliance,
1260 Crossman Avenue," dated January 21, 2000, prepared by Kier &
Wright Civil Engineers and Surveyors, Job No. 99274.
6. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public Utility Easement
Granted to : City of Sunnyvale, a municipal corporation of the State of California
Recorded : September 24, 1965 in Book 7116, Page 489, Official Records,
Affects : Southerly 7 feet abutting Moffett Park Drive, as shown on a survey plat
entitled "ALTA/ACSM Land Title Surveyed for Network Appliance, 1260
Crossman Avenue," dated January 21, 2000, prepared by Kier & Wright
Civil Engineers and Surveyors, Job No. 99274
7. AGREEMENT on the terms and conditions contained therein
For : Construction of Storm Drainage Facilities
Between : City of Sunnyvale
And : Moffett Park Associates, a joint venture partnership
Recorded : November 2, 1966 in Book 7552, Page 688, Official Records
An amendment to said agreement recorded in an instrument
recorded April 21, 1967 in Book 7700, Page 638, Official Records.
An amendment to said agreement recorded in an instrument
recorded February 23, 1968 in Book 8034, Page 631, Official Records.
Notice affecting said real property-waiver of construction
credit dated September 22, 1976 has been executed by Moffett Park
Association (MPA) a joint venture partnership, recorded September 28,
1976 in Book C307, Page 346, Official Records.
8. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public Utilities Easement
Recorded : July 18, 1978 in Book 423 of Maps, at page 13
Affects : Northwesterly 9 feet, Southwesterly 15 feet from the Southernmost 9 feet
of said land, as shown on a survey plat entitled "ALTA/ACSM Land Title Surveyed for Network
Appliance, 1260 Crossman Avenue," dated January 21, 2000, prepared by Kier & Wright
Civil Engineers and Surveyors, Job No. 99274.
9. Limitations, covenants, conditions, restrictions, reservations,
exceptions, terms, liens or charges, but deleting any covenant,
condition or restriction indicating a preference, limitation or
discrimination based on race, color, religion, sex, handicap, familial
status, or national origin to the extent such covenants, conditions or
restrictions violate 42 U.S.C. 3604(c), contained in the document
recorded March 8, 1978 in Book D511, Page 396, Official Records.
And re-recorded December 12, 1978 in Book E157, Page 147, Official
Records.
EXHIBIT B-2 - PAGE 6
31
EXHIBIT B-3
GROUND LEASE
This GROUND LEASE (this "GROUND LEASE"), by and between BNP LEASING
CORPORATION, a Delaware corporation ("BNPLC"), whose address is 12201 Merit
Drive, Suite 860,Dallas, Texas 75251, and NAI or the Applicable Purchaser], a
___________ ("LESSOR"), whose address is ____________________, as of
____________, ____ (the "GL EFFECTIVE DATE").
RECITALS
This Ground Lease is being executed pursuant to a Purchase Agreement
(Phase V - Land) dated as of March 1, 2000 (the "PURCHASE AGREEMENT"), between
BNP Leasing Corporation and Network Appliance, Inc., covering the land described
in Annex 1 attached hereto (the "LAND"). Incorporated by reference into the
Purchase Agreement is a Common Definitions and Provisions Agreement (Phase V -
Land) dated as of the effective date of the Purchase Agreement (the "CDPA"),
between BNP Leasing Corporation and Network Appliance, Inc. The CDPA is hereby
incorporated into and made a part of this Ground Lease for all purposes.
Capitalized terms defined in the CDPA and used but not otherwise defined herein
are intended in this Ground Lease to have the respective meanings ascribed to
them in the CDPA. The provisions in Article II of the CDPA are intended to apply
to this Ground Lease as if set forth herein and as if this Ground Lease were one
of the "Operative Documents" as defined therein.
Lessor and BNPLC have reached agreement as to the terms and conditions
upon which Lessor is willing to lease the Land described in Annex 1 to BNPLC for
a term of approximately just less that 35 years, and by this Ground Lease Lessor
and BNPLC desire to evidence such agreement.
GRANTING CLAUSES
NOW, THEREFORE, in consideration of the rent to be paid and the
covenants and agreements to be performed by BNPLC, as hereinafter set forth,
Lessor does hereby LEASE, DEMISE and LET unto BNPLC for the term hereinafter set
forth the Land, together with:
1. all easements and rights-of-way now owned or hereafter
acquired by Lessor for use in connection with the Land
or as a means of access thereto; and
2. all right, title and interest of Lessor, now owned or
hereafter acquired, in and to (A) any land lying within
the right-of-way of any street, open or proposed,
adjoining the Land, (B) any and all sidewalks and alleys
adjacent to the Land and (C) any strips and gores
between the Land and any abutting land not owned by
Lessor.
The Land and all of the property described in the preceding clauses (1) and (2)
are hereinafter referred to collectively as the "REAL PROPERTY".
To the extent, but only to the extent, that assignable rights or
interests in, to or under the following have been or will be acquired by Lessor
as the owner of any interest in the Real Property, Lessor also hereby grants and
assigns to BNPLC for the term of this Ground Lease (and thereafter, if BNPLC
purchases the Real Property from Lessor pursuant to the Repurchase Option
described in
32
Paragraph 12) the right to use and enjoy (and, in the case of contract rights,
to enforce) such rights or interests of Lessor:
(a) the Permitted Encumbrances; and
(b) any general intangibles, permits, licenses, franchises,
certificates, and other rights and privileges related to the Real
Property that BNPLC (rather than Lessor) would have acquired if BNPLC
had itself acquired the fee estate in the Real Property (excluding,
however, any rights and privileges of Lessor under this Ground Lease,
any rights or privileges of Lessor under the Purchase Agreement or other
Operative Documents, and [without limiting Lessor's obligations under
subparagraphs 4(B), 6(B) or 6(C)] any rights and privileges of Lessor
under the Development Documents described in Annex 3).
Such rights and interests of Lessor, whether now existing or hereafter arising,
are hereinafter collectively called the "GL PERSONAL PROPERTY". The Real
Property and the GL Personal Property are hereinafter sometimes collectively
called the "GL PROPERTY."
Provided, however, the leasehold estate conveyed hereby and BNPLC's
rights hereunder are expressly made subject and subordinate to the Permitted
Encumbrances, including those listed on Annex 2. FURTHER, IF AND SO LONG AS THE
OTHER LEASE AGREEMENT AND THE OTHER PURCHASE AGREEMENT (BOTH AS DEFINED IN THE
CDPA) REMAIN IN FORCE, THE RIGHTS AND OBLIGATIONS OF LESSOR AND BNPLC HEREUNDER
SHALL BE SUBJECT TO ANY CONTRARY PROVISIONS THEREIN. ACCORDINGLY, BNPLC'S RIGHTS
UNDER PARAGRAPH 7 BELOW SHALL BE SUBJECT TO THE PROVISIONS GOVERNING INSURANCE
AND CONDEMNATION IN THE OTHER LEASE AGREEMENT, IF AND SO LONG AS THE OTHER LEASE
AGREEMENT REMAINS IN FORCE.
GENERAL TERMS AND CONDITIONS
The GL Property is leased by Lessor to BNPLC and is accepted and is to
be used and possessed by BNPLC upon and subject to the following terms and
conditions:
1. GROUND LEASE TERM AND EARLY TERMINATION BY BNPLC. The term of this
Ground Lease (the "GROUND LEASE TERM") shall commence on and include the GL
Effective Date and end on last Business Day prior to the thirty-fifth
anniversary of the GL Effective Date. However, subject to the prior approval of
any Leasehold Mortgagee, BNPLC shall have the right to terminate this Ground
Lease by giving a notice to Lessor stating that BNPLC unequivocally elects to
terminate effective as of a date specified in such notice, which may be any date
more than thirty days after the notice and after the expiration or termination
of the Lease pursuant to its terms.
2. NO OTHER GROUND LEASE TERMINATION. Except as expressly provided
herein, this Ground Lease shall not terminate, nor shall Lessor have any right
to terminate this Ground Lease, nor shall the obligations of Lessor under this
Ground Lease be excused, for any reason whatsoever, including any of the
following: (i) any damage to or the destruction of all or any part of the GL
Property from whatever cause, (ii) the taking of the GL Property or any portion
thereof by eminent domain or otherwise for any reason, (iii) any default on the
part of BNPLC under this Ground Lease or under any
EXHIBIT B-3 - PAGE 2
33
other agreement to which Lessor and BNPLC are parties, or (iv) any other cause
whether similar or dissimilar to the foregoing, any existing or future law to
the contrary notwithstanding. It is the intention of the parties hereto that the
obligations of Lessor hereunder shall be separate and independent of the
covenants and agreements of BNPLC. However, nothing in this Paragraph shall be
construed as a waiver by Lessor of any right Lessor may have at law or in equity
to recover monetary damages for any default under this Ground Lease by BNPLC.
3. GROUND LEASE RENT. On each anniversary of the GL Effective Date,
BNPLC shall make a payment to Lessor of rent for the then preceding year
("GROUND LEASE RENT"), in currency that at the time of payment is legal tender
for public and private debts in the United States of America. Each such payment
of Ground Lease Rent shall equal the Fair Rental Value, determined as provided
in Annex 4.
4. USE OF GL PROPERTY.
(A) Permitted Uses and Construction of Improvements. Subject to
the Permitted Encumbrances and the terms hereof, BNPLC may use and occupy the GL
Property for any purpose permitted by Applicable Laws and may construct,
maintain and use any Improvements on the Land which are permitted by Applicable
Laws.
(B) Cooperation by Lessor and its Affiliates.
(1) After the expiration or any earlier termination of the
Lease, if a use of the GL Property by BNPLC or any new Improvements or
any removal or modification of Improvements proposed by BNPLC would
violate any Permitted Encumbrance, Development Document or Applicable
Law unless Lessor or any of its Affiliates, as an owner of adjacent
property or otherwise, gave its consent or approval thereto or agreed to
join in a modification of a Permitted Encumbrance or Development
Document, then Lessor shall give and cause its Affiliates to give such
consent or approval or join in such modification.
(2) To the extent, if any, that any Permitted Encumbrance,
Development Document or Applicable Law requires the consent or approval
of Lessor or any of its Affiliates or of the City of South San Francisco
or any other Person to an assignment of this Ground Lease or a transfer
of any interest in the GL Property by BNPLC or its successors or
assigns, Lessor will without charge give and cause its Affiliates to
give such consent or approval and will cooperate in any way reasonably
requested by BNPLC to assist BNPLC to obtain such consent or approval
from the City or any other Person; provided, however, the assignment or
transfer is not then prohibited by the Lease.
(3) Lessor's obligations under this subparagraph 4(B) shall be
binding upon any successor or assign of Lessor with respect to the Land
and other properties encumbered by the Permitted Encumbrances or subject
to the Development Documents, and such obligations shall survive any
sale of Lessor's interest in the GL Property to BNPLC because of BNPLC's
exercise of the Repurchase Option (as defined in Paragraph 12).
EXHIBIT B-3 - PAGE 3
34
(C) Title to Improvements. Any and all Improvements of whatever
nature at any time constructed, placed or maintained upon any part of the Land
shall be and remain the property of BNPLC and BNPLC's sublessee's, assignees,
licensees and concessionaires, as their interests may appear; provided, any such
Improvements which remain on the Land when this Ground Lease expires or is
terminated shall become and thereupon be the property of Lessor, free and clear
of any Liens Removable by BNPLC. It is the intention of Lessor and BNPLC that
severance of fee title to the Land and the Improvements shall not change the
character of the Improvements as real property. BNPLC may at any time after
Lessor ceases to have possession of the GL Property as tenant under the Lease
and prior to the expiration or termination of this Ground Lease remove all or
any Improvements from the Land without the consent of Lessor and without any
obligation to Lessor or its Affiliates to provide compensation or to construct
other Improvements on or about the Land.
5. ASSIGNMENT AND SUBLETTING; PASS THROUGH OF BNPLC'S LIABILITY
INSURANCE AND INDEMNITY RIGHTS. BNPLC may sublet or assign this Ground Lease
without the consent of Lessor or any of its Affiliates, subject only to
limitations set forth in the Lease for the benefit of Lessor so long as those
limitations remain in force.
To the extent that BNPLC may from time to time after the expiration or
earlier termination of the Other Lease Agreement require any subtenant to agree
to maintain liability insurance against claims of third parties and agree to
make BNPLC an additional or named insured under such insurance, BNPLC shall also
require the subtenant to agree to make Lessor an additional or named insured.
However, BNPLC shall have no liability to Lessor for a breach by the subtenant
of any such agreements, and to the extent that BNPLC's rights as an additional
or named insured are subject to exceptions or limitations concerning BNPLC's own
acts or omissions or the acts or omissions of anyone other than the subtenant,
so too may Lessor's rights as an additional or named insured be subject to
exceptions or limitations concerning Lessor's own acts or omissions or the acts
or omissions of anyone other than the subtenant.
To the extent that BNPLC may itself from time to time after the
expiration or earlier termination of the Other Lease Agreement maintain
liability insurance against claims of third parties which may arise because of
any occurrence on or alleged to have occurred on or about the GL Property, BNPLC
shall cause Lessor to be an additional or named insured under such insurance,
provided Lessor pays or reimburses BNPLC for any additional insurance premium
required to have Lessor made an insured.
To the extent that BNPLC may from time to time after the expiration or
earlier termination of the Other Lease Agreement require any subtenant to agree
to indemnify BNPLC against Environmental Losses or other Losses concerning the
GL Property, BNPLC shall also require the subtenant to agree to indemnify
Lessor. However, BNPLC shall have no liability to Lessor for a breach by the
subtenant of any such agreement, and to the extent that BNPLC's rights as an
indemnitee of the subtenant are subject to exceptions or limitations concerning
BNPLC's own acts or omissions or the acts or omissions of anyone other than the
subtenant, so too may Lessor's rights as an indemnitee be subject to exceptions
or limitations concerning Lessor's own acts or omissions or the acts or
omissions of anyone other than the subtenant.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF LESSOR CONCERNING THE
PROPERTY. Lessor represents, warrants and covenants as follows:
EXHIBIT B-3 - PAGE 4
35
(A) Title to the Property. This Ground Lease shall vest in BNPLC
good and marketable title to a leasehold estate in the Land, subject only to the
terms and conditions hereof, the Permitted Encumbrances, the Development
Documents and any Liens Removable by BNPLC. Lessor shall not, without the prior
consent of BNPLC, create, place or authorize, or through any act or failure to
act, acquiesce in the placing of, any deed of trust, mortgage or other Lien,
whether statutory, constitutional or contractual against or covering the GL
Property or any part thereof (other than Permitted Encumbrances and Liens
Removable by BNPLC), regardless of whether the same are expressly or otherwise
subordinate to the Operative Documents or BNPLC's interest in the Property.
(B) Modification of Permitted Encumbrances and Development
Documents. Without the prior consent of BNPLC, Lessor shall not enter into,
initiate, approve or consent to any modification of any Permitted Encumbrance or
Development Document that would create or expand or purport to create or expand
obligations or restrictions which would encumber the GL Property or any
improvements constructed thereon.
(C) Performance and Preservation of the Development Documents and
Permitted Encumbrances for the Benefit of BNPLC. Not only during the term of the
Other Lease Agreement, but thereafter throughout the term of this Ground Lease,
Lessor shall comply with and perform the obligations imposed by the Permitted
Encumbrances and the Development Documents upon Lessor or upon any owner of the
Land, and shall do whatever is required to preserve the rights and benefits
conferred or intended to be conferred by the Permitted Encumbrances and the
Development Documents, as necessary to facilitate the construction of the
Construction Project on the Land as contemplated in the Other Lease Agreement
and the use of the Improvements included in the Construction Project by BNPLC
and its successors, assigns and subtenants under this Ground Lease after the
expiration or any earlier termination of the Other Lease Agreement. Further, if
Lessor or any Affiliate of Lessor now or hereafter owns, acquires or leases land
(other than the Land) that is the subject of a Permitted Encumbrance or
Development Document, then Lessor shall, and shall cause its Affiliate to,
assume liability for and indemnify BNPLC and other Interested Parties and defend
and hold them harmless from and against all Losses (including Losses caused by
any decline in the value of the Property or of the Improvements) that they would
not have incurred or suffered but for (i) a termination of such Permitted
Encumbrance or Development Document, to which Lessor or its Affiliate agreed, or
which resulted from a breach thereof by Lessor or its Affiliate, or (ii) a
refusal of Lessor or its Affiliate to agree to any waiver or modification
requested by BNPLC of restrictions upon the Property or the transfer thereof
imposed by such Permitted Encumbrance or Development Document, or (iii) anything
done, authorized or suffered by Lessor or its Affiliate in violation of such
Permitted Encumbrance or Development Document. Lessor's obligations under this
subparagraph 6(C) shall be binding upon any successor or assign of Lessor or its
Affiliates with respect to their interest in properties subject to the
Development Documents and Permitted Encumbrances.
7. INSURANCE AND CONDEMNATION.
(A) Entitlement to Insurance and Condemnation Proceeds. All
insurance and condemnation proceeds payable with respect to any damage to or
taking of the GL Property shall be payable to and become the property of BNPLC;
provided, however, Lessor shall be entitled to receive condemnation proceeds
awarded for the value of Lessor's remainder interest in the Land exclusive of
EXHIBIT B-3 - PAGE 5
36
the Improvements. BNPLC is authorized to take all action necessary on behalf of
both BNPLC and Lessor (as lessor under this Ground Lease) to collect insurance
and condemnation proceeds.
(B) Collection of Insurance Proceeds. In the event any of the GL
Property is destroyed or damaged by fire, explosion, windstorm, hail or by any
other casualty against which insurance shall have been required hereunder, (i)
BNPLC may make proof of loss, (ii) each insurance company concerned is hereby
authorized and directed to make payment for such loss directly to BNPLC for
application as required by subparagraph 7(A), and (iii) BNPLC's consent must be
obtained for any settlement, adjustment or compromise of any claims for loss,
damage or destruction under any policy or policies of insurance.
(C) Collection of Condemnation Proceeds. All proceeds of
condemnation awards or proceeds of sale in lieu of condemnation with respect to
the GL Property and all judgments, decrees and awards for injury or damage to
the GL Property shall be paid to BNPLC and applied as provided in subparagraph
7(A) above. BNPLC is hereby authorized, in the name of Lessor, to execute and
deliver valid acquittances for, and to appeal from, any such judgment, decree or
award concerning condemnation of any of the GL Property. BNPLC shall not be, in
any event or circumstances, liable or responsible for failure to collect, or to
exercise diligence in the collection of, any such proceeds, judgments, decrees
or awards.
8. LEASEHOLD MORTGAGES.
(A) By Leasehold Mortgage BNPLC may encumber BNPLC's leasehold estate in
the GL Property created by this Ground Lease, as well as BNPLC's rights and
interests in buildings, fixtures, equipment and Improvements situated on the
Land and rents, issues, profits, revenues and other income to be derived by
BNPLC therefrom.
(B) Any Leasehold Mortgagee or other party, including any corporation
formed by a Leasehold Mortgagee, may become the legal owner of the leasehold
estate created by this Ground Lease, and of the Improvements, equipment,
fixtures and other property assigned as additional security pursuant to a
Leasehold Mortgage, by foreclosure of a Leasehold Mortgage or as a result of the
assignment or conveyance in lieu of foreclosure. Further, any such Leasehold
Mortgagee or other party may itself, after becoming the legal owner and holder
of the leasehold estate created by this Ground Lease, or of any Improvements,
equipment, fixtures and other property assigned as additional security pursuant
to a Leasehold Mortgage, convey or pledge the same without the consent of
Lessor.
(C) Lessor shall serve notice of any default by BNPLC hereunder upon any
Leasehold Mortgagee. No notice of a default by BNPLC shall be deemed effective
until it is so served. Any Leasehold Mortgagee shall have the right to correct
or cure any such default within the same period of time after receipt of such
notice as is given to BNPLC under this Ground Lease to correct or cure defaults,
plus an additional period of thirty days thereafter. Lessor will accept
performance by any Leasehold Mortgagee of any covenant, condition or agreement
on BNPLC's part to be performed hereunder with the same force and effect as
though performed by BNPLC.
(D) If this Ground Lease should terminate by reason of a disaffirmance
or rejection of this Ground Lease by BNPLC or any receiver, liquidator or
trustee for the property of
EXHIBIT B-3 - PAGE 6
37
BNPLC, or by any governmental authority which had taken possession of the
business or property of BNPLC by reason of the insolvency or alleged insolvency
of BNPLC, then:
(1) Lessor shall give notice thereof to each Leasehold
Mortgagee; and upon request of any Leasehold Mortgagee made within sixty
days after Lessor has given such notice, Lessor shall enter into a new
ground lease of the GL Property with such Leasehold Mortgagee for the
remainder of the Ground Lease Term, at the same Ground Lease Rent and on
the same terms and conditions as contained in this Ground Lease.
(2) The estate of the Leasehold Mortgagee, as lessee under the
new lease, shall have priority equal to the estate of BNPLC hereunder.
That is, there shall be no charge, lien or burden upon the GL Property
prior to or superior to the estate granted by such new lease which was
not prior to or superior to the estate of BNPLC under this Ground Lease
as of the date immediately preceding the termination of this Ground
Lease.
(3) Notwithstanding the foregoing, if Lessor shall receive
requests to enter into a new ground lease from more than one Leasehold
Mortgagee, Lessor shall be required to enter into only one new ground
lease, and the new ground lease shall be to the requesting Leasehold
Mortgagee who holds the highest priority lien or interest in BNPLC's
leasehold estate in the Land. If the liens or security interests of two
or more such requesting Leasehold Mortgagees which shared the highest
priority just prior to the termination of this Ground Lease, the new
ground lease shall name all such Leasehold Mortgagees as co-tenants
thereunder.
(E) If BNPLC has agreed with any Leasehold Mortgagee that such Leasehold
Mortgagee's consent will be required to any modification or early termination of
this Ground Lease by BNPLC, and if Lessor has been notified of such agreement,
such consent will be required.
(F) No Leasehold Mortgagee will assume any liability under this Ground
Lease either by virtue of its Leasehold Mortgage or by any subsequent receipt or
collection of rents or profits generated from the GL Property, unless and until
the Leasehold Mortgagee acquires BNPLC's leasehold estate in the GL Property at
foreclosure or by deed in lieu of foreclosure.
(G) Although the foregoing provisions concerning Leasehold Mortgages and
Leasehold Mortgagees will be self operative, Lessor agrees to include, in
addition to the items specified in Paragraph 11, confirmation of the foregoing
in any statement provided to a Leasehold Mortgagee or prospective Leasehold
Mortgagee pursuant to Paragraph 11.
9. EVENTS OF DEFAULT.
(A) Definition of Ground Lease Default. Each of the following
events shall be deemed to be a "GROUND LEASE DEFAULT" by BNPLC under this Ground
Lease:
(1) BNPLC shall fail to pay when due any installment of Ground
Lease Rent due hereunder and such failure shall continue for sixty days
after BNPLC receives notice thereof.
EXHIBIT B-3 - PAGE 7
38
(2) BNPLC shall fail to comply with any term, provision or
covenant of this Ground Lease (other than as described in the other
clauses of this subparagraph 9(A)), and shall not cure such failure
prior to the earlier of (A) ninety days after notice thereof is sent to
BNPLC, or (B) the date any writ or order is issued for the levy or sale
of any property owned by Lessor or its Affiliates (including the GL
Property) because of such failure or any criminal action is instituted
against BNPLC or any of its directors, officers or employees because of
such failure; provided, however, that so long as no such writ or order
is issued and no such criminal actions is instituted, if such failure is
susceptible of cure but cannot with reasonable diligence be cured within
such ninety day period, and if BNPLC shall promptly have commenced to
cure the same and shall thereafter prosecute the curing thereof with
reasonable diligence, the period within which such failure may be cured
shall be extended for such further period as shall be necessary for the
curing thereof with reasonable diligence.
(B) Remedy. Upon the occurrence of a Ground Lease Default which
is not cured within any applicable period expressly permitted by subparagraph
9(A), Lessor's sole and exclusive remedies shall be to sue BNPLC for the
collection of any amount due under this Ground Lease, to sue for the specific
enforcement of BNPLC's obligations hereunder, or to enjoin the continuation of
the Ground Lease Default; provided, however, no limitation of Lessor's remedies
contained herein will prevent Lessor from recovering any reasonable costs Lessor
may incur to mitigate its damages by curing a Ground Lease Default that BNPLC
has failed to cure itself (so long as the cure by Lessor is pursued in a lawful
manner and the costs Lessor seeks to recover do not exceed the actual damages to
be mitigated). Lessor may not terminate this Ground Lease or BNPLC's right to
possession under this Ground Lease. Any judgment which Lessor may obtain against
BNPLC for amounts due under this Ground Lease may be collected only through
resort of a judgement lien against BNPLC's interest in the GL Property and any
Improvements. BNPLC shall have no personal liability for the payment amounts due
under this or for the performance of any obligations of BNPLC under this Ground
Lease.
10. QUIET ENJOYMENT. Neither Lessor nor any third party lawfully
claiming any right or interest in the GL Property shall during the Ground Lease
Term disturb BNPLC's peaceable and quiet enjoyment of the GL Property; however,
such enjoyment shall be subject to the terms, provisions, covenants, agreements
and conditions of this Ground Lease and the Permitted Encumbrances, to which
this Ground Lease is subject and subordinate as herein above set forth.
11. ESTOPPEL CERTIFICATE. Lessor shall from time to time, within ten
days after receipt of request by BNPLC, deliver a statement in writing
certifying:
(A) that this Ground Lease is unmodified and in full force and
effect (or if modified that this Ground Lease as so modified is in full force
and effect);
(B) that to the knowledge of Lessor BNPLC has not previously
assigned or hypothecated its rights or interests under this Ground Lease, except
as is described in such statement with as much specificity as Lessor is able to
provide;
(C) the term of this Ground Lease and the Ground Lease Rent then
in effect and any additional charges;
EXHIBIT B-3 - PAGE 8
39
(D) that BNPLC is not in default under any provision of this
Ground Lease (or if in default, the nature thereof in detail) and a statement as
to any outstanding obligations on the part of Lessor or BNPLC; and
(E) such other matters as are reasonably requested by BNPLC.
Lessor's failure to deliver such statement within such time shall be
conclusive upon BNPLC (i) that this Ground Lease is in full force and effect,
without modification except as may be represented by BNPLC, (ii) that there are
no uncured defaults in BNPLC's performance hereunder.
12. OPTION TO REPURCHASE. Subject to the terms and conditions set forth
in Annex 5, BNPLC (and any assignee of BNPLC's entire interest in the GL
Property, but not any subtenant or assignee of a lesser interest) shall have the
option (the "REPURCHASE OPTION") to purchase Lessor's interest in the GL
Property. To secure BNPLC's right to recover any damages caused by a breach of
the Repurchase Option or other provisions of this Ground Lease by Lessor,
including any such breach caused by a rejection or termination of this Ground
Lease in any bankruptcy or insolvency proceeding instituted by or against
Lessor, as debtor, Lessor does hereby grant to BNPLC a lien and security
interest against the Land and against all rights, title and interests of Lessor
from time to time in and to the GL Property.
[The signature pages follow.]
EXHIBIT B-3 - PAGE 9
40
IN WITNESS WHEREOF, this Ground Lease is hereby executed in multiple
originals as of the date first written above.
"Lessor"
[NAI or the Applicable Purchaser]
By:
---------------------------------------
Name:
------------------------------
Title:
-----------------------------
EXHIBIT B-3 - PAGE 10
41
[Continuation of signature pages to GROUND LEASE dated as of ___________,_____.]
"BNPLC"
BNP LEASING CORPORATION
By:
---------------------------------------
Name:
------------------------------
Title:
-----------------------------
EXHIBIT B-3 - PAGE 11
42
STATE OF ____________ )
) SS
COUNTY OF ___________ )
On ___________________ before me, _________, personally appeared
_________ and _________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the persons whose names are subscribed to the
within instrument and acknowledged to me that they executed the same in their
authorized capacities, and that by their signatures on the instrument the
person, or the entity upon behalf of which the persons acted, executed the
instrument.
WITNESS my hand and official seal.
Signature ______________________
EXHIBIT B-3 - PAGE 12
43
STATE OF ____________ )
) SS
COUNTY OF ___________ )
On ___________________ before me, _________, personally appeared
_________ and _________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the persons whose names are subscribed to the
within instrument and acknowledged to me that they executed the same in their
authorized capacities, and that by their signatures on the instrument the
person, or the entity upon behalf of which the persons acted, executed the
instrument.
WITNESS my hand and official seal.
Signature ______________________
EXHIBIT B-3 - PAGE 13
44
ANNEX 1
LEGAL DESCRIPTION
[DRAFTING NOTE: TO THE EXTENT THAT THE "LAND" COVERED BY THE LAND LEASE CHANGES
FROM TIME TO TIME BECAUSE OF ADJUSTMENTS FOR WHICH NAI REQUESTS BNPLC'S CONSENT
OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY SUCH
CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING NOTE"
WILL BE DELETED BEFORE THE DEED TO WHICH THIS DESCRIPTION IS ATTACHED IS
ACTUALLY EXECUTED AND DELIVERED.]
All that certain real property situate in the City of Sunnyvale, State of
California, described as follows:
All of Parcel 1 as shown upon that certain map entitled, "Parcel Map lying
within the City of Sunnyvale, being a resubdivision of Parcel 5, as shown on Map
recorded in Book 413 of Maps, at Page 53, Santa Clara County Records, City of
Sunnyvale, Santa Clara County, California," which Map was filed for record in
the office of the Recorder of the County of Santa Clara, State of California on
July 18, 1978 in Book 423 of Maps, at Page 13.
Excepting therefrom, the following described property granted to the Santa Clara
County Transit District March 28, 1997 under Series No. 13654560:
All of that certain real property situated in the City of Sunnyvale, County of
Santa Clara, State of California, and being a portion of Parcel 1, as said
Parcel 1 is shown on that certain Parcel Map filed in Book 423 of Maps, Page 13,
Records of Santa Clara County, California, and more particularly described as
follows:
Beginning at the point of intersection of the centerlines of Fair Oaks Avenue
and Crossman Road as said Avenue and Road are shown on said Parcel Map; thence
Northerly along said centerline of Crossman Road, North 18 degrees 37' 09" East
82.70 feet; thence Easterly at a right angle from said centerline of Crossman
Road, 71 degrees 22' 51" East 54.89 feet to a point on a curve on the Easterly
line of said Crossman Road; thence from a tangent bearing of South 9 degrees 32'
30" West along said Easterly line of Crossman Road and along said curve concave
Easterly with a radius of 108.99 feet through a central angle of 11 degrees 34'
1" in an arc length of 22.00 feet the true point of this description; thence
continuing Southerly and Southeasterly along said Easterly line of Crossman Road
the following four (4) described courses: (1) continuing along said curve (from
a tangent bearing of South 2 degrees 01' 41" East) concave Easterly with a
radius of 108.99 feet through a central angle of 23 degrees 25' 59" an arc
length of 44.58 feet; (2) South 25 degrees 27' 40" East 79.86 feet to a curve;
(3) Southeasterly along said curve concave Northeasterly with a radius of 108.99
feet, through a central angle of 9 degrees 00' 00" in an arc length of 17.12
feet; (4) South 34 degrees 27' 40" East 23.31 feet to the Northeasterly line of
said Fair Oaks Avenue; thence Southeasterly along said Northeasterly line of
Fair Oaks Avenue South 50 degrees 50' 59" East 139.04 feet; thence leaving said
Northeasterly line of Fair Oaks Avenue North 34 degrees 36' 17" West 57.40 feet;
thence North 50 degrees 50' 13" West 32.20 feet; thence North 34 degrees 36' 17"
West 205.73 feet to the true point of beginning.
EXHIBIT B-3 - PAGE 14
45
ANNEX 2
PERMITTED ENCUMBRANCES
The leasehold and other interests in the Land hereby conveyed by Lessor are
conveyed subject to the following matters to the extent the same are still valid
and in force:
[THE SAME LIST OF PERMITTED ENCUMBRANCES ATTACHED TO THE GRANT DEED FROM BNPLC
TO NAI OR THE APPLICABLE PURCHASER SHALL BE INSERTED HERE.]
EXHIBIT B-3 - PAGE 15
46
ANNEX 3
LIST OF DEVELOPMENT DOCUMENTS
NONE
EXHIBIT B-3 - PAGE 16
47
ANNEX 4
DETERMINATION OF FAIR RENTAL VALUE
Each annual payment of Ground Lease Rent will equal the Fair Rental
Value, computed as of the most recent Rental Determination Date when such
payment becomes due. As used in this Annex:
"FAIR RENTAL VALUE" means (and all appraisers and other persons
involved in the determination of the Fair Rental Value will be so
advised) the annual rent, as determined in accordance with this Annex,
that would be agreed upon between a willing tenant, under no compulsion
to lease, and a willing landlord, under no compulsion to lease, for
unimproved land comparable in size and location to the Land, exclusive
of any Improvements but assuming that there is no higher and better use
for such land than as a site for improvements of comparable size and
utility to the Improvements, at the time a determination is required
under hereunder and taking into consideration the condition of the Land,
the encumbrances affecting the title to the Land and all applicable
zoning, land use approvals and other governmental permits relating to
the Land at the time of such determination; and
"RENTAL DETERMINATION DATE" means the GL Effective Date and each
fifth anniversary of the GL Effective Date.
If Lessor and BNPLC have not agreed upon Fair Rental Value as of any
Rental Determination Date within one hundred eighty days after the such date,
then Fair Rental Value will be determined as follows:
(a) Lessor and BNPLC shall each appoint a real estate
appraiser who is familiar with rental values for properties in
the vicinity of the Land and who has not previously acted for
either party. Each party will make the appointment no later than
ten days after receipt of notice from the other party that the
appraisal process described in this Annex has been invoked. The
agreement of the two appraisers as to Fair Rental Value will be
binding upon Lessor and BNPLC. If the two appraisers cannot
agree upon the Fair Rental Value within ten days following their
appointment, they shall within another ten days agree upon a
third real estate appraiser. Immediately thereafter, each of the
first two appraisers will submit his best estimate of the
appropriate Fair Rental Value (together with a written report
supporting such estimate) to the third appraiser and the third
appraiser will choose between the two estimates. The estimate of
Fair Rental Value chosen by the third appraiser as the closest
to the prevailing annual fair rental value will be binding upon
Lessor and BNPLC. Notification in writing of this estimate shall
be made to Lessor and BNPLC within fifteen days following the
selection of the third appraiser.
(b) If appraisers must be selected under the procedure set
out above and either BNPLC or Lessor fails to appoint an
appraiser or fails to notify the other party of such appointment
within fifteen days after receipt of notice that the prescribed
time for appointing the appraisers has passed, then the other
party's appraiser will determine the Fair Rental Value. All
appraisers selected for the appraisal process set out in this
Annex will be
EXHIBIT B-3 - PAGE 17
48
disinterested, reputable, qualified real estate appraisers with
the designation of MAI or equivalent and with at least 5 years
experience in appraising properties comparable to the Land.
(c) If a third appraiser must be chosen under the procedure
set out above, he or she will be chosen on the basis of
objectivity and competence, not on the basis of his relationship
with the other appraisers or the parties to this Ground Lease,
and the first two appraisers will be so advised. Although the
first two appraisers will be instructed to attempt in good faith
to agree upon the third appraiser, if for any reason they cannot
agree within the prescribed time, either Lessor and BNPLC may
require the first two appraisers to immediately submit its top
choice for the third appraiser to the then highest ranking
officer of the California Bar Association who will agree to help
and who has no attorney/client or other significant relationship
to either Lessor or BNPLC. Such officer will have complete
discretion to select the most objective and competent third
appraiser from between the choices of each of the first two
appraisers, and will do so within twenty days after such choices
are submitted to him.
(d) Either Lessor or BNPLC may notify the appraiser selected
by the other party to demand the submission of an estimate of
Fair Rental Value or a choice of a third appraiser as required
under the procedure described above; and if the submission of
such an estimate or choice is required but the other party's
appraiser fails to comply with the demand within fifteen days
after receipt of such notice, then the Fair Rental Value or
choice of the third appraiser, as the case may be, selected by
the other appraiser (i.e., the notifying party's appraiser) will
be binding upon Lessor and BNPLC.
(e) Lessor and BNPLC shall each bear the expense of the
appraiser appointed by it, and the expense of the third
appraiser and of any officer of the California Bar Association
who participates in the appraisal process described above will
be shared equally by Lessor and BNPLC.
EXHIBIT B-3 - PAGE 18
49
ANNEX 5
REPURCHASE OPTION
Subject to the terms of this Annex, BNPLC shall have an option (the
"OPTION") to buy Lessor's fee interest in the GL Property at any time during the
term of this Ground Lease for a purchase price (the "OPTION PRICE") to Lessor
equal to the fair market value of the GL Property, determined as described in
the next paragraph.
For the purposes of this Annex, "fair market value" of the GL Property
means (and all appraisers and other persons involved in the determination of the
Option Price will be so advised) the price that would be agreed upon between a
willing buyer, under no compulsion to buy, and a willing seller, under no
compulsion to sell, for the Land, exclusive of any Improvements as if the Land
were unimproved, but assuming that there is no higher and better use for the
Land than as a site for the construction of improvements of comparable size and
utility to the Improvements, at the time of BNPLC's exercise of the Option and
taking into consideration the encumbrances affecting the title to the Land and
all applicable zoning, land use approvals and other governmental permits
relating to the Land at the time of the exercise of the Option.
If BNPLC exercises the Option, which BNPLC may do by notifying Lessor
that BNPLC has elected to buy Lessor's interest in the GL Property as provided
herein, then:
(a) To the extent, if any, required as a condition imposed
by law to the conveyance of the fee interest in the GL Property
to BNPLC, Lessor shall promptly at its expense do whatever is
necessary to obtain approvals of a new Parcel Map or lot line
adjustments.
(b) Upon BNPLC's tender of the Option Price to Lessor,
Lessor will convey to BNPLC by general warranty deed and
assignment, subject only to the Permitted Encumbrances, good and
marketable title to the fee estate in the Land , to Lessor's
interest in all other GL Property and, to the extent still in
force, to Lessor's Extended Remarketing Rights under the
Purchase Agreement.
(c) BNPLC's obligation to close the purchase shall be
subject to the following terms and conditions, all of which are
for the benefit of BNPLC: (1) BNPLC shall have been furnished
with evidence satisfactory to BNPLC that Lessor can convey title
as required by the preceding subparagraph; (2) nothing shall
have occurred or been discovered after BNPLC exercised the
Option that could significantly and adversely affect title to
the GL Property or BNPLC's use thereof, (3) all of the
representations of Lessor in this Ground Lease shall continue to
be true as if made effective on the date of the closing and,
with respect to any such representations which may be limited to
the knowledge of Lessor or any of Lessor's representatives,
would continue to be true on the date of the closing if all
relevant facts and circumstances were known to Lessor and such
representatives, (4) BNPLC shall find the Option Price
acceptable after it is determined as provided in this Annex, and
(5) BNPLC
EXHIBIT B-3 - PAGE 19
50
shall have been tendered the deed and other documents which are
described in this Annex as documents to be delivered to BNPLC at
the closing of BNPLC's purchase.
(d) Closing of the purchase will be scheduled on the first
Business Day following thirty days after the Option Price is
established in accordance with the terms and conditions of this
Annex and after any approvals described in subparagraph (a)
above are obtained, and prior to closing BNPLC's occupancy of
the GL Property shall continue to be subject to the terms and
conditions of this Ground Lease, including the terms setting
forth BNPLC's obligation to pay rent. Closing shall take place
at the offices of any title insurance company reasonably
selected by BNPLC to insure title under the title insurance
policy described below.
(e) Any transfer taxes or notices or registrations required
by law in connection with the sale contemplated by this Annex
will be the responsibility of Lessor.
(f) Lessor will deliver a certificate of nonforeign status
to BNPLC at closing as needed to comply with the provisions of
the Foreign Investors Real Property Tax Act (FIRPTA) or any
comparable federal, state or local law in effect at the time.
(g) Lessor will also pay for and deliver to BNPLC at the
closing an owner's title insurance policy in the full amount of
the Option Price, issued by a title insurance company designated
by BNPLC (or written confirmation from the title company that it
is then prepared to issue such a policy), and subject only to
standard printed exceptions which the title insurance company
refuses to delete or modify in a manner acceptable to BNPLC and
to Permitted Encumbrances.
(h) Lessor shall also deliver at the closing all other
documents or things reasonably required to be delivered to BNPLC
or by the title insurance company to evidence Lessor's ability
to transfer the GL Property to BNPLC.
If Lessor and BNPLC do not otherwise agree upon the amount of the Option
Price within twenty days after BNPLC exercises the Option, the Option Price
shall be determined in accordance with the following procedure:
1) Lessor and BNPLC shall each appoint a real estate
appraiser who is familiar with properties in the vicinity of
the Land and who has not previously acted for either party.
Each party will make the appointment no later than ten days
after receipt of notice from the other party that the
appraisal process described in this Annex has been invoked.
The agreement of the two appraisers as to the Option Price
will be binding upon Lessor and BNPLC. If the two appraisers
cannot agree upon the Option Price within ten days following
their appointment, they shall within another ten days agree
upon a third real estate appraiser. Immediately thereafter,
each of the first two appraisers will submit his best
estimate of the appropriate Option Price (together with a
written report supporting such estimate) to the third
appraiser and the third appraiser will choose between the
two estimates. The estimate of Option Price chosen by the
EXHIBIT B-3 - PAGE 20
51
third appraiser as the closest to the prevailing fair market
value will be binding upon Lessor and BNPLC. Notification in
writing of the Option Price shall be made to Lessor and
BNPLC within fifteen days following the selection of the
third appraiser.
2) If appraisers must be selected under the procedure
set out above and either BNPLC or Lessor fails to appoint an
appraiser or fails to notify the other party of such
appointment within fifteen days after receipt of notice that
the prescribed time for appointing the appraisers has
passed, then the other party's appraiser will determine the
Option Price. All appraisers selected for the appraisal
process set out in this Annex will be disinterested,
reputable, qualified real estate appraisers with the
designation of MAI or equivalent and with at least 5 years
experience in appraising properties comparable to the Land.
3) If a third appraiser must be chosen under the
procedure set out above, he will be chosen on the basis of
objectivity and competence, not on the basis of his
relationship with the other appraisers or the parties to
this Ground Lease, and the first two appraisers will be so
advised. Although the first two appraisers will be
instructed to attempt in good faith to agree upon the third
appraiser, if for any reason they cannot agree within the
prescribed time, either Lessor and BNPLC may require the
first two appraisers to immediately submit its top choice
for the third appraiser to the then highest ranking officer
of the California Bar Association who will agree to help and
who has no attorney/client or other significant relationship
to either Lessor or BNPLC. Such officer will have complete
discretion to select the most objective and competent third
appraiser from between the choices of each of the first two
appraisers, and will do so within ten days after such
choices are submitted to him.
4) Either Lessor or BNPLC may notify the appraiser
selected by the other party to demand the submission of an
estimate of Option Price or a choice of a third appraiser as
required under the procedure described above; and if the
submission of such an estimate or choice is required but the
other party's appraiser fails to comply with the demand
within fifteen days after receipt of such notice, then the
Option Price or choice of the third appraiser, as the case
may be, selected by the other appraiser (i.e., the notifying
party's appraiser) will be binding upon Lessor and BNPLC.
5) Lessor and BNPLC shall each bear the expense of the
appraiser appointed by it, and the expense of the third
appraiser and of any officer of the California Bar
Association who participates in the appraisal process
described above will be shared equally by Lessor and BNPLC.
EXHIBIT B-3 - PAGE 21
52
EXHIBIT C
BILL OF SALE AND ASSIGNMENT
Reference is made to: (1) that certain Purchase Agreement (Phase V -
Land) between BNP Leasing Corporation ("ASSIGNOR") and Network Appliance, Inc.,
dated as of March 1, 2000, (the "PURCHASE AGREEMENT") and (2) that certain Lease
Agreement (Phase V - Land) between Assignor, as landlord, and Network Appliance,
Inc., as tenant, dated as of March 1, 2000 (the "LAND LEASE"). (Capitalized
terms used and not otherwise defined in this document are intended to have the
meanings assigned to them in the Common Definitions and Provisions Agreement
(Phase V - Land) incorporated by reference into both the Purchase Agreement and
Land Lease.)
As contemplated by the Purchase Agreement, Assignor hereby sells,
transfers and assigns unto [NAI OR THE APPLICABLE PURCHASER, AS THE CASE MAY
BE], a _____________ ("ASSIGNEE"), all of Assignor's right, title and interest
in and to the following property, if any, to the extent such property is
assignable:
(a) the Land Lease;
(b) any pending or future award made because of any
condemnation affecting the Property or because of any conveyance
to be made in lieu thereof, and any unpaid award for damage to
the Property and any unpaid proceeds of insurance or claim or
cause of action for damage, loss or injury to the Property; and
(c) all other property included within the definition of
"Property" as set forth in the Purchase Agreement.
Provided, however, excluded from this conveyance and reserved to Assignor are
any rights or privileges of Assignor under the following ("EXCLUDED RIGHTS"):
(1) the indemnities set forth in the Land Lease, whether such rights are
presently known or unknown, including rights of the Assignor to be indemnified
against environmental claims of third parties as provided in the Land Lease
which may not presently be known, (2) provisions in the Land Lease that
establish the right of Assignor to recover any accrued unpaid rent under the
Land Lease which may be outstanding as of the date hereof, (3) agreements
between Assignor and "BNPLC's Parent" or any "Participant," both as defined in
the Land Lease, or any modification or extension thereof, or (4) any other
instrument being delivered to Assignor contemporaneously herewith pursuant to
the Purchase Agreement. To the extent that this conveyance does include any
rights to receive future payments under the Land Lease, such rights ("INCLUDED
RIGHTS") shall be subordinate to Assignor's Excluded Rights, and Assignee hereby
waives any rights to enforce Included Rights until such time as Assignor has
received all payments to which it remains entitled by reason of Excluded Rights.
If any amount shall be paid to Assignee on account of any Included Rights at any
time before Assignor has received all payments to which it is entitled because
of Excluded Rights, such amount shall be held in trust by Assignee for the
benefit of Assignor, shall be segregated from the other funds of Assignee and
shall forthwith be paid over to Assignor to be held by Assignor as collateral
for, or then or at any time thereafter applied in whole or in part by Assignor
against, the payments due to Assignor because of Excluded Rights, whether
matured or unmatured, in such order as Assignor shall elect.
53
Assignor does for itself and its successors covenant and agree to
warrant and defend the title to the property assigned herein against the just
and lawful claims and demands of any person claiming under or through a Lien
Removable by BNPLC, but not otherwise.
Assignee hereby assumes and agrees to keep, perform and fulfill
Assignor's obligations, if any, relating to any permits or contracts, under
which Assignor has rights being assigned herein.
IN WITNESS WHEREOF, the parties have executed this instrument as of
_______________, _____.
ASSIGNOR:
BNP LEASING CORPORATION, a Delaware
corporation
By:
-----------------------------------
Its:
----------------------------------
ASSIGNEE:
[NAI or the Applicable Purchaser], a
____________
By:
-----------------------------------
Its:
----------------------------------
EXHIBIT C - PAGE 2
54
STATE OF ____________ )
) SS
COUNTY OF ___________ )
On ___________________ before me, _________, personally appeared
_________ and _________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the persons whose names are subscribed to the
within instrument and acknowledged to me that they executed the same in their
authorized capacities, and that by their signatures on the instrument the
person, or the entity upon behalf of which the persons acted, executed the
instrument.
WITNESS my hand and official seal.
Signature______________________
STATE OF ____________ )
) SS
COUNTY OF ___________ )
On ___________________ before me, _________, personally appeared
_________ and _________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the persons whose names are subscribed to the
within instrument and acknowledged to me that they executed the same in their
authorized capacities, and that by their signatures on the instrument the
person, or the entity upon behalf of which the persons acted, executed the
instrument.
WITNESS my hand and official seal.
Signature ______________________
EXHIBIT C - PAGE 3
55
ANNEX A
LEGAL DESCRIPTION
[DRAFTING NOTE: TO THE EXTENT THAT THE "LAND" COVERED BY THE LAND LEASE CHANGES
FROM TIME TO TIME BECAUSE OF ADJUSTMENTS FOR WHICH NAI REQUESTS BNPLC'S CONSENT
OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY SUCH
CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING NOTE"
WILL BE DELETED BEFORE THE DOCUMENT TO WHICH THIS DESCRIPTION IS ATTACHED IS
ACTUALLY EXECUTED AND DELIVERED.]
The real property located in the City of Sunnyvale, County of Santa Clara, State
of California, described as follows:
All of Parcel 1 as shown upon that certain map entitled, "Parcel Map lying
within the City of Sunnyvale, being a resubdivision of Parcel 5, as shown on Map
recorded in Book 413 of Maps, at Page 53, Santa Clara County Records, City of
Sunnyvale, Santa Clara County, California," which Map was filed for record in
the office of the Recorder of the County of Santa Clara, State of California on
July 18, 1978 in Book 423 of Maps, at Page 13.
Excepting therefrom, the following described property granted to the Santa Clara
County Transit District March 28, 1997 under Series No. 13654560:
All of that certain real property situated in the City of Sunnyvale, County of
Santa Clara, State of California, and being a portion of Parcel 1, as said
Parcel 1 is shown on that certain Parcel Map filed in Book 423 of Maps, Page 13,
Records of Santa Clara County, California, and more particularly described as
follows:
Beginning at the point of intersection of the centerlines of Fair Oaks Avenue
and Crossman Road as said Avenue and Road are shown on said Parcel Map; thence
Northerly along said centerline of Crossman Road, North 18 degrees 37' 09" East
82.70 feet; thence Easterly at a right angle from said centerline of Crossman
Road, 71 degrees 22' 51" East 54.89 feet to a point on a curve on the Easterly
line of said Crossman Road; thence from a tangent bearing of South 9 degrees 32'
30" West along said Easterly line of Crossman Road and along said curve concave
Easterly with a radius of 108.99 feet through a central angle of 11 degrees 34'
1" in an arc length of 22.00 feet the true point of this description; thence
continuing Southerly and Southeasterly along said Easterly line of Crossman Road
the following four (4) described courses: (1) continuing along said curve (from
a tangent bearing of South 2 degrees 01' 41" East) concave Easterly with a
radius of 108.99 feet through a central angle of 23 degrees 25' 59" an arc
length of 44.58 feet; (2) South 25 degrees 27' 40" East 79.86 feet to a curve;
(3) Southeasterly along said curve concave Northeasterly with a radius of 108.99
feet, through a central angle of 9 degrees 00' 00" in an arc length of 17.12
feet; (4) South 34 degrees 27' 40" East 23.31 feet to the Northeasterly line of
said Fair Oaks Avenue; thence Southeasterly along said Northeasterly line of
Fair Oaks Avenue South 50 degrees 50' 59" East 139.04 feet; thence leaving said
EXHIBIT C - PAGE 4
56
Northeasterly line of Fair Oaks Avenue North 34 degrees 36' 17" West 57.40 feet;
thence North 50 degrees 50' 13" West 32.20 feet; thence North 34 degrees 36' 17"
West 205.73 feet to the true point of beginning.
EXHIBIT C - PAGE 5
57
EXHIBIT D
ACKNOWLEDGMENT OF DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
THIS ACKNOWLEDGMENT OF DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
(this "CERTIFICATE") is made as of ___________________, ____, by [NAI or the
Applicable Purchaser, as the case may be], a ___________________ ("GRANTEE").
Contemporaneously with the execution of this Certificate, BNP Leasing
Corporation, a Delaware corporation ("BNPLC"), is executing and delivering to
Grantee (1) a corporate grant deed and (2) a Bill of Sale and Assignment (the
foregoing documents and any other documents to be executed in connection
therewith are herein called the "CONVEYANCING DOCUMENTS" and any of the
properties, rights or other matters assigned, transferred or conveyed pursuant
thereto are herein collectively called the "SUBJECT PROPERTY").
Notwithstanding any provision contained in the Conveyancing Documents to
the contrary, Grantee acknowledges that BNPLC makes no representations or
warranties of any nature or kind, whether statutory, express or implied, with
respect to environmental matters or the physical condition of the Subject
Property, and Grantee, by acceptance of the Conveyancing Documents, accepts the
Subject Property "AS IS," "WHERE IS," "WITH ALL FAULTS" and without any such
representation or warranty by Grantor as to environmental matters, the physical
condition of the Subject Property, compliance with subdivision or platting
requirements or construction of any improvements. Without limiting the
generality of the foregoing, Grantee hereby further acknowledges and agrees that
warranties of merchantability and fitness for a particular purpose are excluded
from the transaction contemplated by the Conveyancing Documents, as are any
warranties arising from a course of dealing or usage of trade. Grantee hereby
assumes all risk and liability (and agrees that BNPLC shall not be liable for
any special, direct, indirect, consequential, or other damages) resulting or
arising from or relating to the ownership, use, condition, location,
maintenance, repair, or operation of the Subject Property, except for damages
proximately caused by (and attributed by any applicable principles of
comparative fault to) the Established Misconduct of BNPLC. As used in the
preceding sentence, "Established Misconduct" is intended to have, and be limited
to, the meaning given to it in the Common Definitions and Provisions Agreement
(Phase V - Land) incorporated by reference into the Purchase Agreement (Phase
V-Land) between BNPLC and Network Appliance, Inc. dated December ___, 1999,
pursuant to which Purchase Agreement BNPLC is delivering the Conveyancing
Documents.
The provisions of this Certificate shall be binding on Grantee, its
successors and assigns and any other party claiming through Grantee. Grantee
hereby acknowledges that BNPLC is entitled to rely and is relying on this
Certificate.
EXECUTED as of ________________, ____.
[NAI or the Applicable Purchaser],
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
58
EXHIBIT E
SECRETARY'S CERTIFICATE
The undersigned, [Secretary or Assistant Secretary] of BNP Leasing
Corporation, a Delaware corporation (the "Corporation"), hereby certifies as
follows:
1. That he is the duly, elected, qualified and acting Secretary [or
Assistant Secretary] of the Corporation and has custody of the corporate
records, minutes and corporate seal.
2. That the following named persons have been properly designated,
elected and assigned to the office in the Corporation as indicated below; that
such persons hold such office at this time and that the specimen signature
appearing beside the name of such officer is his or her true and correct
signature.
[THE FOLLOWING BLANKS MUST BE COMPLETED WITH THE NAMES AND SIGNATURES OF THE
OFFICERS WHO WILL BE SIGNING THE DEED AND OTHER SALE CLOSING DOCUMENTS ON BEHALF
OF THE CORPORATION.]
Name Title Signature
- ---- ----- ---------
- ------------------ ------------------ ------------------
- ------------------ ------------------ ------------------
3. That the resolutions attached hereto and made a part hereof were duly
adopted by the Board of Directors of the Corporation in accordance with the
Corporation's Articles of Incorporation and Bylaws. Such resolutions have not
been amended, modified or rescinded and remain in full force and effect.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal
of the Corporation on this ____ day of ________________, ____.
-------------------------------
[signature and title]
59
CORPORATE RESOLUTIONS OF
BNP LEASING CORPORATION
WHEREAS, pursuant to that certain Purchase Agreement (Phase V - Land)
(herein called the "Purchase Agreement") dated as of March 1, 2000, by and
between BNP Leasing Corporation (the "Corporation") and [NAI OR THE APPLICABLE
PURCHASER AS THE CASE MAY BE] ("Purchaser"), the Corporation agreed to sell and
Purchaser agreed to purchase or cause the Applicable Purchaser (as defined in
the Purchase Agreement) to purchase the Corporation's interest in the property
(the "Property") located in Sunnyvale, California more particularly described
therein.
NOW THEREFORE, BE IT RESOLVED, that the Board of Directors of the
Corporation, in its best business judgment, deems it in the best interest of the
Corporation and its shareholders that the Corporation convey the Property to
Purchaser or the Applicable Purchaser pursuant to and in accordance with the
terms of the Purchase Agreement.
RESOLVED FURTHER, that the proper officers of the Corporation, and each
of them, are hereby authorized and directed in the name and on behalf of the
Corporation to cause the Corporation to fulfill its obligations under the
Purchase Agreement.
RESOLVED FURTHER, that the proper officers of the Corporation, and each
of them, are hereby authorized and directed to take or cause to be taken any and
all actions and to prepare or cause to be prepared and to execute and deliver
any and all deeds and other documents, instruments and agreements that shall be
necessary, advisable or appropriate, in such officer's sole and absolute
discretion, to carry out the intent and to accomplish the purposes of the
foregoing resolutions.
EXHIBIT E - PAGE 2
60
EXHIBIT F
FIRPTA STATEMENT
Section 1445 of the Internal Revenue Code of 1986, as amended, provides
that a transferee of a U.S. real property interest must withhold tax if the
transferor is a foreign person. Sections 18805, 18815 and 26131 of the
California Revenue and Taxation Code, as amended, provide that a transferee of a
California real property interest must withhold income tax if the transferor is
a nonresident seller.
To inform [NAI OR THE APPLICABLE PURCHASER] (the "Transferee") that
withholding of tax is not required upon the disposition of a California real
property interest by transferor, BNP Leasing Corporation (the "Seller"), the
undersigned hereby certifies the following on behalf of the Seller:
1. The Seller is not a foreign corporation, foreign partnership, foreign
trust, or foreign estate (as those terms are defined in the Internal Revenue
Code and Income Tax Regulations);
2. The United States employer identification number for the Seller is
_____________________;
3. The office address of the Seller is _______________________________.
4. The Seller is qualified to do business in California.
The Seller understands that this certification may be disclosed to the
Internal Revenue Service and/or to the California Franchise Tax Board by the
Transferee and that any false statement contained herein could be punished by
fine, imprisonment, or both.
The Seller understands that the Transferee is relying on this affidavit
in determining whether withholding is required upon said transfer.
Under penalties of perjury I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have authority to sign this document on
behalf of the Seller.
Dated: ___________, ____.
By:
----------------------------------
Name:
-----------------------------
Title:
----------------------------