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EXHIBIT 10.24
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$44,000,000
PURCHASE AGREEMENT
BETWEEN
BNP LEASING CORPORATION
("BNPLC")
AND
NETWORK APPLIANCE, INC.
("NAI")
JANUARY 20, 1999
(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...........5
(F) Delivery of Books and Records If BNPLC Retains the Property.....................................5
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................................................6
(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) Election by NAI to Terminate the Purchase Option and NAI's Initial Remarketing Rights and
Obligations Prior to the Base Rent Commencement Date............................................8
(C) Election by BNPLC to Terminate the Purchase Option and NAI's Initial Remarketing Rights and
Obligations.....................................................................................9
(D) Automatic Termination of NAI's Rights...........................................................9
(E) Termination of NAI's Extended Remarketing Rights to Permit a Sale by BNPLC......................9
(F) Payment Only to BNPLC..........................................................................10
(G) Remedies Under the Other Operative Documents...................................................10
(H) Occupancy by NAI Prior to Closing of a Sale....................................................10
5. SECURITY FOR NAI'S OBLIGATIONS; RETURN OF FUNDS.........................................................10
6 CERTAIN REMEDIES CUMULATIVE.............................................................................11
7 ATTORNEYS' FEES AND LEGAL EXPENSES......................................................................11
8 ESTOPPEL CERTIFICATE....................................................................................11
9 SUCCESSORS AND ASSIGNS..................................................................................11
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Exhibits and Schedules
Exhibit A......................................................Legal Description
Exhibit B.............................................................Grant Deed
Exhibit C............................................Bill of Sale and Assignment
Exhibit D..........................................Acknowledgment and Disclaimer
Exhibit E................................................Secretary's Certificate
Exhibit F.................................Certificate Concerning Tax Withholding
Exhibit K.................................Notice by NAI of Election to Terminate
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PURCHASE AGREEMENT
This PURCHASE AGREEMENT (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 January 20, 1999, the
Effective Date. ("EFFECTIVE DATE" and other capitalized terms used and not
otherwise defined in this Agreement are intended to have the meanings assigned
to them in the Common Definitions and Provisions Agreement executed by BNPLC and
NAI contemporaneously with this Agreement. By this reference, the Common
Definitions and Provisions Agreement 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 and the
existing Improvements thereon from Seller contemporaneously with the execution
of this Agreement. Pursuant to the Lease, BNPLC is leasing the Land and existing
Improvements to NAI and agreeing to provide funding for the construction and
completion of Improvements, all of which will be owned by BNPLC. (All of BNPLC's
interests, including those created by the documents delivered at the closing
under the Existing Contract, in the Land and in the Improvements and in all
other real and personal property from time to time covered by the Lease and
included within the "Property" as defined therein are hereinafter collectively
referred to as the "PROPERTY".)
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 Lease
shall have been terminated, but subject to Paragraph 4 below:
(1) NAI shall have the right (the "PURCHASE OPTION") to
purchase or cause an Affiliate of NAI to purchase the Property and BNPLC's
interest in Escrowed Proceeds, if any, on the Designated Sale Date for a
cash price equal to the Break Even Price (as defined below).
(2) If neither NAI nor an Affiliate of NAI purchases the
Property and BNPLC's interest in any Escrowed Proceeds on the Designated
Sale Date as provided in the preceding subparagraph 1(A)(1), then NAI
shall have the following rights and obligations (collectively, "NAI'S
INITIAL REMARKETING RIGHTS AND OBLIGATIONS"):
(a) First, NAI shall have the right (but not the
obligation) to cause an Applicable Purchaser who is not an Affiliate
of NAI to purchase the Property and BNPLC's interest in 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
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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.
(y) No Event of Default, other than an
Issue 97-1 Non-performance-related Subjective Event of
Default, shall occur on or be continuing on the
Designated Sale Date.
2) If either of the conditions listed in
subparagraph 1) preceding are not satisfied, the "MAXIMUM
REMARKETING OBLIGATION" will equal the Break Even Price.
If any Supplemental Payment or other amount payable to BNPLC pursuant to this
subparagraph 1(A) is not actually paid to BNPLC on the Designated Sale Date, NAI
shall pay interest on the past due amount computed at the Default Rate from the
Designated Sale Date.
(B) Determinations Concerning Price.
(1) Determination of the Break Even Price. As used herein,
"BREAK EVEN PRICE" means an amount equal, on the Designated Sale Date, to
Stipulated Loss Value, plus all out-of-pocket costs 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, and plus an amount
equal to the Balance of Unpaid Construction-Period Indemnity Payments, but
less the aggregate amounts (if any) of Direct Payments to Participants and
Deposit Taker Losses (other than Excluded Deposit Taker Losses). As used
herein, the "BALANCE OF UNPAID CONSTRUCTION-PERIOD INDEMNITY PAYMENTS"
means an amount
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equal to the sum of Construction-Period Indemnity Payments, if any, that
NAI declined to pay pursuant to subparagraph 5(d)(ii) of the Lease, plus
interest accruing at the Default Rate, compounded annually, on each such
payment from the date such payment would have become due but for NAI's
right to decline to pay it as described in subparagraph 5(d)(ii) of the
Lease. If, however, Losses for which NAI has so declined to pay any
Construction-Period Indemnity Payment consist of claims against BNPLC or
another Interested Party that have not been liquidated prior to the
Designated Sale Date (and, thus, such Losses have yet to be fixed in
amount as of the Designated Sale Date), then NAI may elect to exclude any
Construction-Period Indemnity Payment attributable to such Losses 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 Balance of Unpaid Construction-Period Indemnity Payments
(and, thus, the Break Even Price), any such written indemnity must be
fully executed and delivered by NAI on or prior to the Designated Sale
Date, must include provisions comparable to subparagraphs 5(c)(ii), (iii),
(iv) and (v) of the Lease and otherwise must be in form and substance
satisfactory to BNPLC.
(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, NAI does not
deliver a Remarketing Notice to BNPLC within the time period
specified above, then the Third Party Price will be an amount
determined in good faith by BNPLC as constituting reasonably
equivalent value for the Property and any Escrowed Proceeds, but in
no event more than the Break Even Price.
If any payment to BNPLC by an Applicable Purchaser hereunder is held to
constitute a preference or a voidable transfer under Applicable Law, or
must for any other reason be refunded by BNPLC to the Applicable Purchaser
or to another Person, and if such payment to BNPLC reduced or had the
effect of reducing a Supplemental Payment or increased or had the effect
of increasing any excess sale proceeds
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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 Purchase
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, Improvements or other
Property claimed by, through or under BNPLC, including any interest claimed by
the Participants and including any Liens Removable by BNPLC (such as, but not
limited to, any judgment liens established against the Property because of a
judgment rendered against BNPLC and any leasehold or other interests conveyed by
BNPLC in the ordinary course of BNPLC's business), but not including personal
obligations of NAI to BNPLC under the Lease or other Operative Documents
(including obligations arising under the indemnities therein). Anyone accepting
or taking any interest in the Property by or through BNPLC after the date of
this Agreement shall acquire such interest subject to the Purchase Option and
NAI's Initial Remarketing Rights and Obligations. Further, NAI and any
Applicable Purchaser shall be entitled to pay any payment required by this
Agreement for the purchase of the Property directly to BNPLC notwithstanding any
prior conveyance or assignment by BNPLC, voluntary or otherwise, of any right or
interest in this Agreement or the Property, and neither NAI nor any Applicable
Purchaser shall be responsible for the proper distribution or application of any
such payments by BNPLC; and any such payment to BNPLC shall discharge the
obligation of NAI to cause such payment to all Persons claiming an interest in
such payment. Contemporaneously with the execution of this Agreement, the
parties shall record a memorandum of this Agreement for purposes of effecting
constructive notice to all Persons of NAI's rights under this Agreement,
including its rights under this subparagraph.
(E) Security for the Purchase Option and NAI's Initial Remarketing
Rights and Obligations. To secure BNPLC's obligation to sell the Property
pursuant to this Paragraph 1(A) and to pay any damages to NAI caused by a breach
of such obligations, including any such breach caused by a rejection or
termination of this Agreement in any bankruptcy or insolvency proceeding
instituted by or against BNPLC, as debtor, BNPLC does hereby grant to NAI a lien
and security interest against all rights, title and interests of BNPLC from time
to time in and to the Land, Improvements and other Property. NAI may enforce
such lien and security interest judicially after any such breach by BNPLC, but
not otherwise. Contemporaneously with the execution of this Agreement, NAI and
BNPLC will execute a memorandum of this Agreement which is in recordable form
and which specifically references the lien granted in this subparagraph, and NAI
shall be entitled to record such memorandum at any time prior to the Designated
Sale Date.
(F) Delivery of Books and Records If BNPLC Retains the Property.
Unless NAI or its Affiliate or another Applicable Purchaser purchases the
Property pursuant to Paragraph 1(A), promptly after the Designated Sale Date NAI
shall deliver to BNPLC copies of all plans and specifications for the Property
prepared
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in connection with the construction contemplated by the Construction Management
Agreement and the Lease, together with all other 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 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:
(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
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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 Lease and otherwise must be in form and substance satisfactory to BNPLC.
(C) BNPLC's Right to Sell. After the Designated Sale Date, if the
Property has not already been sold by BNPLC pursuant to Paragraph 1 or this
Paragraph 2, BNPLC shall have the right to sell the Property or offer the
Property for sale to any third party on any terms believed to be appropriate by
BNPLC in its sole good faith business judgment; provided, however, that so long
as the conditions to NAI's Extended Remarketing Rights specified in subparagraph
2(A) continue to be satisfied:
(1) BNPLC shall not sell the Property to an Affiliate of
BNPLC on terms less favorable than those which BNPLC would require from a
prospective purchaser not an Affiliate of BNPLC;
(2) If BNPLC receives or desires to make a written proposal
(whether in the form of a "letter of intent" or other nonbinding
expression of interest or in the form of a more definitive purchase and
sale agreement) for a sale of the Property to a prospective purchaser (a
"THIRD PARTY SALE PROPOSAL"), and if on the basis of such Third Party Sale
Proposal BNPLC expects to enter into or to pursue negotiations for a
definitive purchase and sale agreement with the prospective purchaser,
then prior to executing any such definitive agreement, BNPLC shall submit
the Third Party Sale Proposal to NAI with a notice (the "THIRD PARTY SALE
NOTICE") explaining that (A) BNPLC is then prepared to accept a price not
below an amount specified in such Third Party Sale Notice (the "THIRD
PARTY TARGET PRICE") if BNPLC and the prospective purchaser reach
agreement on other terms and conditions to be incorporated into a
definitive purchase and sale agreement, and (B) NAI's Extended Remarketing
Right may be terminated pursuant to subparagraph 4(E) of this Agreement
unless NAI causes an Applicable Purchaser to consummate a purchase of the
Property pursuant to this Paragraph 2 within ninety days after the date of
such Third Party Sale Notice.
(D) NAI's Right to Excess Sales Proceeds. If the cash price
actually paid by any third party purchasing the Property from BNPLC during NAI's
Extended Remarketing Period, including any price paid by an Applicable Purchaser
purchasing from BNPLC pursuant to this Paragraph 2, exceeds the Minimum Extended
Remarketing Price, then NAI shall be entitled to the excess; provided, that
BNPLC may offset and retain from the excess any and all sums that are then due
and unpaid from NAI to BNPLC under any of the Operative Documents.
(E) Permitted Transfers During NAI's Extended Remarketing Period.
Any "Permitted Transfer" described in clause (6) of the definition thereof in
the Common Definitions and Provisions Agreement to an Affiliate of BNPLC or that
covers BNPLC's entire interest in the Land and Improvements 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
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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,
Improvements 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, Improvements 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, (2) a Bill of Sale and Assignment in the form attached as Exhibit C,
(3) an Acknowledgment of Disclaimer of Representations and Warranties, in the
form attached as Exhibit D, which NAI or the Applicable Purchaser must execute
and return to BNPLC, (4) a Secretary's Certificate in the form attached as
Exhibit E, and (5) 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 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 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 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
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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) Election by NAI to Terminate the Purchase Option and NAI's
Initial Remarketing Rights and Obligations Prior to the Base Rent Commencement
Date. At any time prior to the Base Rent Commencement Date, NAI may elect to
terminate both the Purchase Option and NAI's Initial Remarketing Rights and
Obligations, subject to the following conditions:
(1) To be effective, any such election to terminate must be
made prior to the Base Rent Commencement Date and must be made after (x)
NAI shall have given Notice of NAI's Election to Terminate pursuant to
Paragraph 5(D) of the Construction Management Agreement, (y) BNPLC shall
have given any FOCB Notice as provided in Paragraph 5(E) of the
Construction Management Agreement, or (z) BNPLC shall have given notice of
its election to accelerate the Designated Sale Date when an Event of
Default has occurred and is continuing as provided in clause (5) of the
definition Designated Sale Date in the Common Definitions and Provisions
Agreement.
(2) To be effective, any such election to terminate must be
made by giving BNPLC and the Participants a notice thereof in the form
attached as Exhibit F prior to the Base Rent Commencement Date.
(3) No termination pursuant to this subparagraph 4(B) shall
be effective, notwithstanding any notice NAI may have given as described
in the preceding clause (2), unless contemporaneously with the giving of
the notice (and in any event prior to the Base Rent Commencement Date) NAI
shall deliver to BNPLC an Issue 97-10 Prepayment.
(4) If for any reason whatsoever, including any bona fide
dispute over the amount of any required Issue 97-10 Prepayment, BNPLC does
not receive both the notice described in the preceding clause (2) and a
full Issue 97-10 Prepayment as described in the preceding clause (3) prior
to the Base Rent Commencement Date, then without any notice or other
action by the parties to this Agreement NAI shall cease to have any option
to terminate pursuant to this subparagraph 4(B).
(C) Election by BNPLC to Terminate the Purchase Option and NAI's
Initial Remarketing Rights and Obligations. By notice to NAI BNPLC shall be
entitled to terminate both the Purchase Option and NAI's Initial Remarketing
Rights and Obligations, as BNPLC deems appropriate in its sole and absolute
discretion, at any time after receiving a notice given by NAI to make or attempt
to make any Issue 97-10 Election. Upon any such termination by BNPLC, NAI shall
become immediately obligated to pay BNPLC an Issue 97-10 Prepayment.
8
12
(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 Purchase Agreement, the rights of NAI (to be
distinguished from the obligations of NAI) included in NAI's Initial Remarketing
Rights and Obligations, the Purchase Option and NAI's Extended Remarketing
Rights shall all terminate automatically if NAI shall fail to pay the full
amount of any Supplemental Payment required by subparagraph 1(A)(2)(c) on the
Designated Sale Date or if BNPLC shall elect a Voluntary Retention of the
Property as provided in subparagraph 1(A)(2)(a). If, however, NAI's Initial
Remarketing Rights and Obligations are effectively terminated pursuant to
subparagraph 4(B) or 4(C) prior to the Designated Sale Date, thereby excusing
NAI from the obligation to make any Supplemental Payment pursuant to
subparagraph 1(A)(2)(c) and precluding any Voluntary Retention of the Property
pursuant to subparagraph 1(A)(2)(a), then NAI's Extended Remarketing Rights will
not automatically terminate pursuant to this subparagraph. Further,
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 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 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 Lease, the Construction Management Agreement 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 Improvements and its use of the Property shall
continue to be subject to the terms and conditions of the Lease, including the
terms setting forth NAI's obligation to pay rent, Prior to any termination or
expiration of the 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
9
13
the full and faithful performance by NAI of NAI's covenants and obligations
under this Agreement, the Collateral shall not be considered an advance payment
of the Break Even Price or any Supplemental Payment or a measure of BNPLC's
damages should NAI breach this Agreement. If NAI does breach this Agreement and
fails to cure the same within any time specified herein for the cure, BNPLC may,
from time to time, without prejudice to any other remedy and without notice to
NAI, require the collateral agent to immediately apply the proceeds of any
disposition of the Collateral (and any cash included in the Collateral) to
amounts then due hereunder from NAI. If by a Permitted Transfer BNPLC conveys
its interest in the Property before the Designated Sale Date, BNPLC may also
assign BNPLC's interest in the Collateral to the transferee. BNPLC shall be
entitled to return any Collateral not sold or used to satisfy the obligations
secured by the Pledge Agreement directly to NAI notwithstanding any prior actual
or attempted conveyance or assignment by NAI, voluntary or otherwise, of any
right to receive the same; neither BNPLC nor the collateral agent named in the
Pledge Agreement shall be responsible for the proper distribution or application
by NAI of any such Collateral returned to NAI; and any such return of Collateral
to NAI shall discharge any obligation of BNPLC to deliver such Collateral to all
Persons claiming an interest in the Collateral. Further, BNPLC shall be entitled
to deliver any Escrowed Proceeds it holds on the Designated Sale Date directly
to NAI or to any Applicable Purchaser purchasing BNPLC's interest in the
Property and the Escrowed Proceeds pursuant to this Agreement notwithstanding
any prior actual or attempted conveyance or assignment by NAI, voluntary or
otherwise, of any right to receive the same; BNPLC shall not be responsible for
the proper distribution or application by NAI or any Applicable Purchaser of any
such Escrowed Proceeds paid over to NAI or the Applicable Purchaser; and any
such payment of Escrowed Proceeds to NAI or an Applicable Purchaser shall
discharge any obligation of BNPLC to deliver the same to all Persons claiming an
interest therein.
6 CERTAIN REMEDIES CUMULATIVE. No right or remedy herein conferred
upon or reserved to BNPLC is intended to be exclusive of any other right or
remedy BNPLC has with respect to the Property, and each and every right and
remedy shall be cumulative and in addition to any other right or remedy given
hereunder or now or hereafter existing at law or in equity or by statute. In
addition to other remedies available under this Agreement, either party shall be
entitled, to the extent permitted by applicable law, to a decree compelling
performance of any of the other party's agreements hereunder.
7 ATTORNEYS' FEES AND LEGAL EXPENSES. If either party to this
Agreement commences any legal action or other proceeding to enforce any of the
terms of this Agreement, or because of any breach by the other party or dispute
hereunder, the party prevailing in such action or proceeding shall be entitled
to recover from the other party all Attorneys' Fees incurred in connection
therewith, whether or not such controversy, claim or dispute is prosecuted to a
final judgment. Any such Attorneys' Fees incurred by either party in enforcing a
judgment in its favor under this Agreement shall be recoverable separately from
such judgment, and the obligation for such Attorneys' Fees is intended to be
severable from other provisions of this Agreement and not to be merged into any
such judgment.
8 ESTOPPEL CERTIFICATE. Upon request by BNPLC, NAI shall execute,
acknowledge and deliver a written statement certifying that this Agreement is
unmodified and in full effect (or, if there have been modifications, that this
Agreement is in full effect as modified, and setting forth such modification)
and either stating that no default exists hereunder or specifying each such
default of which NAI has knowledge. Any such statement may be relied upon by any
Participant or prospective purchaser or assignee of BNPLC with respect to the
Property.
9 SUCCESSORS AND ASSIGNS. The terms, provisions, covenants and
conditions hereof shall be binding upon NAI and BNPLC and their respective
permitted successors and assigns and shall inure to the benefit of NAI and BNPLC
and all permitted transferees, mortgagees, successors and assignees of NAI and
BNPLC with respect to the Property; provided, that (A) the rights of BNPLC
hereunder shall not pass to NAI or any Applicable Purchaser or any subsequent
owner claiming through NAI or an Applicable Purchaser, (B) BNPLC shall not
assign
10
14
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 Agreement to be
executed as of January 20, 1999.
"NAI"
NETWORK APPLIANCE, INC.
By: _______________________________________
Name: _________________________________
Title: ________________________________
16
[Continuation of signature pages to Purchase Agreement dated to be effective
January 20, 1999]
"BNPLC"
BNP LEASING CORPORATION
By: _______________________________________
Lloyd G. Cox, Vice President
17
EXHIBIT A
LEGAL DESCRIPTION
All that certain real property situate in the City of Sunnyvale, State of
California, described as follows:
ARB No: ________________________
APN No: ________________________
18
EXHIBIT B
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
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, together with the improvements currently located on
such land and together with any other right, title and interest of Grantor in
and to such land and any easements, rights-of-way, privileges and other rights
appurtenant to such land; 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.
BNP LEASING CORPORATION
Date: As of ____________ By: __________________________________________
Its:
Attest: __________________________________________
Its:
[NAI or Applicable Purchaser]
Date: As of ____________ By: __________________________________________
Its:
Attest: __________________________________________
Its:
19
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 B - Page 2
20
ANNEX A
LEGAL DESCRIPTION
[DRAFTING NOTE: TO THE EXTENT THAT THE "LAND" COVERED BY THE 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:
PARCEL ONE:
PARCEL "A", as shown upon that certain Parcel Map filed for record on October
25, 1966 in Book 216 of Maps, page 2, in the Office of the Recorder of the
County of Santa Clara.
EXCEPTING THEREFROM those portions thereof described in the Deed to Santa Clara
Valley Transit District, recorded October 24, 1997, Document No. 13912193;
Official Records.
ALSO EXCEPTING THEREFROM that portion of said PARCEL "A" described in the deed
from 495 Java Drive Associates, L.P. to 475 Java Drive Associates, L.P. recorded
September 16, 1998, Document No. 14395998; Official Records, as follows:
Beginning at the Northwest corner of Parcel A as shown upon said Parcel Map
filed for record in Book 216 at Page 2; thence along the Westerly line of said
Parcel A, South 14 degrees 51 minutes 33 seconds West 223.09 feet to a point
hereinafter referred to as Point "X"; thence leaving said Westerly line North 38
degrees 52 minutes 02 seconds East 134.85 feet; thence North 51 degrees 07
minutes 58 seconds West 49.68; thence North 38 degrees 52 minutes 02 seconds
East 87.23 feet to the Northerly line of last said Parcel A; thence along said
Northerly line North 75 degrees 07 minutes 58 seconds West 44.97 feet to the
point of beginning.
TOGETHER WITH that portion of PARCEL "A", as shown upon that certain Parcel Map
filed for record on November 10, 1971 in Book 292 of Maps, page 41, in the
Office of the Recorder of the County of Santa Clara, described in the deed from
475 Java Drive Associates, L.P. to 495 Java Drive Associates, L.P., recorded
September 16, 1998, Document No. 14395997, Official Records, as follows:
Beginning at the Northwest corner of PARCEL "A" as shown upon that certain
Parcel Map recorded in Book 216 of Maps at page 2; thence along the Westerly
line of said PARCEL "A", South 14 degrees 51 minutes 33 seconds West 223.09 feet
to a point hereinafter referred to as Point "X"; thence continuing along the
Westerly line of last said Parcel A, South 14 degrees 51 minutes 33 seconds West
186.10 feet to a point on the Northeasterly line of that parcel of land
described in the deed to Santa Clara Valley Transit District, recorded October
24, 1997 as Instrument No. 13912192, Official Records, said point being on a
non-tangent curve concave Southwesterly and having a radius of 1002.05 feet, a
radial line through said point bears North 45 degrees 01 minutes 56 seconds
East; thence Northwesterly along said Northeasterly line and along said curve
through a central angle of 04 degrees 20 minutes 28 seconds an arc length of
75.92 feet; thence leaving said Northeasterly line non-tangent from last said
curve North 38 degrees 52 minutes 02 seconds East 164.71 feet to the said Point
of Beginning.
PARCEL TWO:
Exhibit B - Page 3
21
Non-exclusive easements for storm drain purposes as granted to The Prudential
Insurance Company of America by Deed recorded June 17, 1975 in Book B467, page
173, Official Records, particularly described in said deed.
Exhibit B - Page 4
22
PARCEL THREE:
A non-exclusive easement for ingress to and egress from motor vehicle parking
spaces as granted to The Prudential Insurance Company of America by Deed
recorded June 17, 1975 in Book B467, page 178.
PARCEL FOUR:
Non-exclusive easements for ingress and egress granted by 475 Java Drive
Associates, L.P. to 495 Java Drive Associates, L.P., described in the Reciprocal
Easement Agreement recorded September 16, 1998, Document No.
14396001, Official Records, as follows:
ONE:
Commencing at the Northeasterly corner of that parcel of land described in the
Deed to Santa Clara Valley Transit District, recorded October 24, 1997 as
Instrument No. 13912192, Official Records, said point lying on the Easterly line
of said PARCEL "A", as shown upon that certain Parcel Map filed for record in
Book 292, page 41; thence Northwesterly along the Northeasterly line of said
parcel of land described in the deed to Santa Clara Valley Transit District
along a curve to the left with a radius of 1002.05 feet, from which a radial
line bears North 45 degrees 01 minutes 56 seconds East, through a central angle
of 4 degrees 20 minutes 28 seconds for an arc length of 75.92 feet to the true
point of beginning; thence North 38 degrees 52 minutes 02 seconds East 82.92
feet to a point hereafter referred to as Point A; thence North 51 degrees 07
minutes 58 seconds West 12.96 feet; thence South 38 degrees 52 minutes 02
seconds West 64.41 feet; thence Westerly along a tangent curve to the right with
a radius of 20.00 feet, through a central angle of 64 degrees 20 minutes 39
seconds for an arc length of 22.46 feet to a point on said Northeasterly line of
said parcel of land described in the Deed to Santa Clara Valley Transit
District; thence Southeasterly along said Northeasterly line along a non-tangent
curve to the right with a radius of 1002.05 feet, from which a radial line bears
North 39 degrees 18 minutes 05 seconds East, through a central angle of 1
degrees 23 minutes 23 seconds for an arc length of 24.30 feet to the true point
of beginning.
TWO:
Commencing at said Point A; thence North 38 degrees 52 minutes 02 seconds East
216.65 feet to the true point of beginning; thence North 51 degrees 07 minutes
58 seconds West 49.68 feet; thence North 38 degrees 52 minutes 02 seconds East
87.23 feet to the Northeasterly line of said PARCEL "A", as shown upon that
certain Parcel Map filed for record in Book 216 at page 2; thence North 75
degrees 07 minutes 58 seconds West 13.91 feet along said Northeasterly line;
thence South 38 degrees 52 minutes 02 seconds West 94.26 feet; thence South 51
degrees 07 minutes 58 seconds East 62.39 feet; thence North 38 degrees 52
minutes 02 seconds East 12.70 feet to the true point of beginning.
APN: 110-32-009
ARB: 110-3-X57,66.02
Exhibit B - Page 5
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 LEASE 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 incorporated by reference into the Lease Agreement referenced in item
#1 of the list below), including the following matters to the extent the same
are still valid and in force:
1. Lease Agreement dated January 20, 1999, by and between BNP Leasing
Corporation, as lessor, and Network Appliance, Inc., as lessee.
2. TAXES for the fiscal year [current year], a lien not yet due or payable.
3. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Slope
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 430, Official
Records
Affects : A strip of land 18 feet in width, contiguous to
and Westerly of the Westerly line of Crossman
Road; and contiguous to and Northerly of the
Northerly line of Java Drive.
4. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 450, Official
Records
Affects : A strip of land 7 feet in width, contiguous to
and Westerly of the Westerly line of Crossman
Road; and contiguous to and Northerly of the
Northerly line of Java Drive.
5. AGREEMENT on the terms and conditions contained therein,
For : Construction of additional storm drainage system
facilities
Between : City of Sunnyvale
And : Moffett Park Associates, a joint venture
partnership
Recorded : November 2, 1966 in Book 7552, page 688,
Official Records.
AMENDED AGREEMENT recorded April 21, 1967 in Book 7700, page 638, Official
Records.
6. LIMITATIONS, covenants, conditions, restrictions, reservations, exceptions
or terms contained in Declaration of Protective Covenants - Moffett
Industrial Park No. 2 recorded December 23, 1971 in Book 9640, page 443,
Official Records.
Exhibit B - Page 6
24
ASSIGNMENT AND ASSUMPTION of the rights, powers, duties, obligations and
reservations of Moffett Park Associates, in favor of The Prudential
Insurance Company of America, recorded February 8, 1977 in Book C583, page
685, Official Records.
7. EASEMENT for the purposes stated herein and incidents thereto
For : Ingress to and egress from motor vehicle parking
spaces
Granted to : ESL Incorporated
Recorded : June 17, 1975 in Book B467, page 184, Official
Records
Affects : A portion of the Northerly 15 feet of said land.
8. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Any and all public service facilities
Granted to : Santa Clara County Transit District
Recorded : October 29, 1997 under Series No.13912193,
Official Records
Affects : A portion of said land 5.00 feet in width and
10.00 feet in length, alongside Java Drive.
9. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Construction and maintenance of streets drainage
facilities, storm, sewers, water mains and
pipes, street lighting facilities, sanitary
sewer and other public utilities
Granted to : City of Sunnyvale, a municipal corporation
Recorded : September 18, 1998, under Series No. 14401233,
Official Records
Affects : Southwesterly portion of said land
10. RECIPROCAL EASEMENT for the purposes stated herein and incidents thereto
Purpose : Grant of Driveway Easement: an easement for
ingress and egress
Granted to : 475 Java Drive Associates, L.P., a California
Limited Partnership and 495 Java Drive
Associates, L.P., a California Limited
Partnership
Recorded : September 16, 1998, under Series No. 14396001
Reference is made to the record for further particulars.
11. EASEMENT for the purposes stated therein and incidents thereto
Purpose : Public utilities
Granted to : City of Sunnyvale
Recorded : September 18, 1998, Document No. 14401234,
Official Records
Affects : A 7.00 foot wide strip of land, alongside Java
Drive, particularly described and delineated in
said instrument
Exhibit B - Page 7
25
EXHIBIT C
BILL OF SALE AND ASSIGNMENT
Reference is made to: (1) that certain Purchase Agreement between BNP
Leasing Corporation ("ASSIGNOR") and Network Appliance, Inc., dated as of
January 20, 1999, (the "PURCHASE AGREEMENT") and (2) that certain Lease
Agreement between Assignor, as landlord, and Network Appliance, Inc., as tenant,
dated as of January 20, 1999 (the "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 incorporated by
reference into both the Purchase Agreement and 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 Lease;
(b) any pending or future award made because of any condemnation
affecting the Property or because of any conveyance to be made in lieu thereof,
and any unpaid award for damage to the Property and any unpaid proceeds of
insurance or claim or cause of action for damage, loss or injury to the
Property; and
(c) all other property included within the definition of "Property" as
set forth in the Purchase Agreement, including but not limited to any of the
following transferred to Assignor by the tenant pursuant to Paragraph 7 of the
Lease or otherwise acquired by Assignor, at the time of the execution and
delivery of the Lease and Purchase Agreement or thereafter, by reason of
Assignor's status as the owner of any interest in the Property: (1) any goods,
equipment, furnishings, furniture, chattels and tangible personal property of
whatever nature that are located on the Property and all renewals or
replacements of or substitutions for any of the foregoing; (ii) the rights of
Assignor, existing at the time of the execution of the Lease and Purchase
Agreement or thereafter arising, under Permitted Encumbrances or Development
Documents (both as defined in the Lease); and (iii) any other permits, licenses,
franchises, certificates, and other rights and privileges related to the
Property that Assignee would have acquired if Assignee had itself acquired the
land conveyed by the Lease and constructed the Improvements included in the
Property.
Provided, however, excluded from this conveyance and reserved to Assignor are
any rights or privileges of Assignor under the following ("EXCLUDED RIGHTS"):
(1) the indemnities set forth in the 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 Lease which may not
presently be known, (2) provisions in the Lease that establish the right of
Assignor to recover any accrued unpaid rent under the 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 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 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.
26
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
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 __________________________
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
28
ANNEX A
LEGAL DESCRIPTION
[DRAFTING NOTE: TO THE EXTENT THAT THE "LAND" COVERED BY THE 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.]
All that certain real property situate in the City of Sunnyvale, State of
California, described as follows:
PARCEL ONE:
PARCEL "A", as shown upon that certain Parcel Map filed for record on October
25, 1966 in Book 216 of Maps, page 2, in the Office of the Recorder of the
County of Santa Clara.
EXCEPTING THEREFROM those portions thereof described in the Deed to Santa Clara
Valley Transit District, recorded October 24, 1997, Document No. 13912193;
Official Records.
ALSO EXCEPTING THEREFROM that portion of said PARCEL "A" described in the deed
from 495 Java Drive Associates, L.P. to 475 Java Drive Associates, L.P. recorded
September 16, 1998, Document No. 14395998; Official Records, as follows:
Beginning at the Northwest corner of Parcel A as shown upon said Parcel Map
filed for record in Book 216 at Page 2; thence along the Westerly line of said
Parcel A, South 14 degrees 51 minutes 33 seconds West 223.09 feet to a point
hereinafter referred to as Point "X"; thence leaving said Westerly line North 38
degrees 52 minutes 02 seconds East 134.85 feet; thence North 51 degrees 07
minutes 58 seconds West 49.68; thence North 38 degrees 52 minutes 02 seconds
East 87.23 feet to the Northerly line of last said Parcel A; thence along said
Northerly line North 75 degrees 07 minutes 58 seconds West 44.97 feet to the
point of beginning.
TOGETHER WITH that portion of PARCEL "A", as shown upon that certain Parcel Map
filed for record on November 10, 1971 in Book 292 of Maps, page 41, in the
Office of the Recorder of the County of Santa Clara, described in the deed from
475 Java Drive Associates, L.P. to 495 Java Drive Associates, L.P., recorded
September 16, 1998, Document No. 14395997, Official Records, as follows:
Beginning at the Northwest corner of PARCEL "A" as shown upon that certain
Parcel Map recorded in Book 216 of Maps at page 2; thence along the Westerly
line of said PARCEL "A", South 14 degrees 51 minutes 33 seconds West 223.09 feet
to a point hereinafter referred to as Point "X"; thence continuing along the
Westerly line of last said Parcel A, South 14 degrees 51 minutes 33 seconds West
186.10 feet to a point on the Northeasterly line of that parcel of land
described in the deed to Santa Clara Valley Transit District, recorded October
24, 1997 as Instrument No. 13912192, Official Records, said point being on a
non-tangent curve concave Southwesterly and having a radius of 1002.05 feet, a
radial line through said point bears North 45 degrees 01 minutes 56 seconds
East; thence Northwesterly along said Northeasterly line and along said curve
through a central angle of 04 degrees 20 minutes 28 seconds an arc length of
75.92 feet; thence leaving said Northeasterly line non-tangent from last said
curve North 38 degrees 52 minutes 02 seconds East 164.71 feet to the said Point
of Beginning.
Exhibit C - Page 4
29
PARCEL TWO:
Non-exclusive easements for storm drain purposes as granted to The Prudential
Insurance Company of America by Deed recorded June 17, 1975 in Book B467, page
173, Official Records, particularly described in said deed.
Exhibit C - Page 5
30
PARCEL THREE:
A non-exclusive easement for ingress to and egress from motor vehicle parking
spaces as granted to The Prudential Insurance Company of America by Deed
recorded June 17, 1975 in Book B467, page 178.
PARCEL FOUR:
Non-exclusive easements for ingress and egress granted by 475 Java Drive
Associates, L.P. to 495 Java Drive Associates, L.P., described in the Reciprocal
Easement Agreement recorded September 16, 1998, Document No.
14396001, Official Records, as follows:
ONE:
Commencing at the Northeasterly corner of that parcel of land described in the
Deed to Santa Clara Valley Transit District, recorded October 24, 1997 as
Instrument No. 13912192, Official Records, said point lying on the Easterly line
of said PARCEL "A", as shown upon that certain Parcel Map filed for record in
Book 292, page 41; thence Northwesterly along the Northeasterly line of said
parcel of land described in the deed to Santa Clara Valley Transit District
along a curve to the left with a radius of 1002.05 feet, from which a radial
line bears North 45 degrees 01 minutes 56 seconds East, through a central angle
of 4 degrees 20 minutes 28 seconds for an arc length of 75.92 feet to the true
point of beginning; thence North 38 degrees 52 minutes 02 seconds East 82.92
feet to a point hereafter referred to as Point A; thence North 51 degrees 07
minutes 58 seconds West 12.96 feet; thence South 38 degrees 52 minutes 02
seconds West 64.41 feet; thence Westerly along a tangent curve to the right with
a radius of 20.00 feet, through a central angle of 64 degrees 20 minutes 39
seconds for an arc length of 22.46 feet to a point on said Northeasterly line of
said parcel of land described in the Deed to Santa Clara Valley Transit
District; thence Southeasterly along said Northeasterly line along a non-tangent
curve to the right with a radius of 1002.05 feet, from which a radial line bears
North 39 degrees 18 minutes 05 seconds East, through a central angle of 1
degrees 23 minutes 23 seconds for an arc length of 24.30 feet to the true point
of beginning.
TWO:
Commencing at said Point A; thence North 38 degrees 52 minutes 02 seconds East
216.65 feet to the true point of beginning; thence North 51 degrees 07 minutes
58 seconds West 49.68 feet; thence North 38 degrees 52 minutes 02 seconds East
87.23 feet to the Northeasterly line of said PARCEL "A", as shown upon that
certain Parcel Map filed for record in Book 216 at page 2; thence North 75
degrees 07 minutes 58 seconds West 13.91 feet along said Northeasterly line;
thence South 38 degrees 52 minutes 02 seconds West 94.26 feet; thence South 51
degrees 07 minutes 58 seconds East 62.39 feet; thence North 38 degrees 52
minutes 02 seconds East 12.70 feet to the true point of beginning.
APN: 110-32-009
ARB: 110-3-X57,66.02
Exhibit C - Page 6
31
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
incorporated by reference into the Purchase Agreement between BNPLC and Network
Appliance, Inc. dated January 20, 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 ________________, ____.
32
[NAI or the Applicable Purchaser]
By:_____________________________________________________________________________
Name:___________________________________________________________________________
Title:__________________________________________________________________________
33
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]
34
CORPORATE RESOLUTIONS OF
BNP LEASING CORPORATION
WHEREAS, pursuant to that certain Purchase Agreement (herein called the
"Purchase Agreement") dated as of January 20, 1999, by and between BNP Leasing
Corporation (the "Corporation") and [NAI OR THE APPLICABLE PURCHASER AS THE CASE
MAY BE] ("Purchaser"), the Corporation agreed to sell and Purchaser agreed to
purchase or cause the Applicable Purchaser (as defined in the Purchase
Agreement) to purchase the Corporation's interest in the property (the
"Property") located in Sunnyvale, California more particularly described
therein.
NOW THEREFORE, BE IT RESOLVED, that the Board of Directors of the
Corporation, in its best business judgment, deems it in the best interest of the
Corporation and its shareholders that the Corporation convey the Property to
Purchaser or the Applicable Purchaser pursuant to and in accordance with the
terms of the Purchase Agreement.
RESOLVED FURTHER, that the proper officers of the Corporation, and each of
them, are hereby authorized and directed in the name and on behalf of the
Corporation to cause the Corporation to fulfill its obligations under the
Purchase Agreement.
RESOLVED FURTHER, that the proper officers of the Corporation, and each of
them, are hereby authorized and directed to take or cause to be taken any and
all actions and to prepare or cause to be prepared and to execute and deliver
any and all deeds and other documents, instruments and agreements that shall be
necessary, advisable or appropriate, in such officer's sole and absolute
discretion, to carry out the intent and to accomplish the purposes of the
foregoing resolutions.
Exhibit E - Page 2
35
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:______________________________________
36
Exhibit F
NOTICE OF ELECTION TO TERMINATE THE PURCHASE OPTION AND
NAI'S INITIAL REMARKETING RIGHTS AND OBLIGATIONS
BNP Leasing Corporation
12201 Merit Drive
Suite 860
Dallas, Texas 75251
Attention: Lloyd G. Cox
Re: Purchase Agreement dated as of January 20, 1999 (the "PURCHASE
AGREEMENT"), between Network Appliance, Inc. ("NAI") and BNP Leasing Corporation
("BNPLC")
Gentlemen:
Capitalized terms used in this letter are intended to have the meanings
assigned to them in the Purchase Agreement referenced above. This letter shall
constitute a notice, given before the Base Rent Commencement Date pursuant to
subparagraph 4(B) of the Purchase Agreement, of NAI's election to terminate the
Purchase Option and NAI's Initial Remarketing Rights and Obligations. NAI
irrevocably elects to terminate the Purchase Option and NAI's Initial
Remarketing Rights and Obligations effective immediately, subject only to the
conditions described below.
NAI ACKNOWLEDGES THAT THE ELECTION MADE BY NAI DESCRIBED ABOVE CONSTITUTES
AN ISSUE 97-10 ELECTION UNDER AND AS DEFINED IN THE OPERATIVE DOCUMENTS.
NAI also acknowledges that its right to terminate the Purchase Option and
NAI's Initial Remarketing Rights and Obligations is subject to the condition
precedent that (x) NAI shall have given Notice of NAI's Election to Terminate
pursuant to Paragraph 5(D) of the Construction Management Agreement, or (y)
BNPLC shall have given any FOCB Notice as provided in Paragraph 5(E) of the
Construction Management Agreement, or (z) BNPLC shall have given notice of its
election to accelerate the Designated Sale Date when an Event of Default has
occurred and is continuing as provided in clause (5) of the definition
Designated Sale Date in the Common Definitions and Provisions Agreement.
Accordingly, if none of the notices described in the preceding sentence have
been given, the Purchase Option and NAI's Initial Remarketing Rights and
Obligations shall not terminate by reason of this notice.
NAI further acknowledges that no termination of the Purchase Option and
NAI's Initial Remarketing Rights and Obligations by NAI pursuant to this notice
shall be effective, unless contemporaneously with the giving of this notice NAI
shall deliver to BNPLC a full Issue 97-10 Prepayment. NAI hereby covenants to
pay, if NAI has not already done so, a full Issue 97-10 Prepayment to BNPLC.
Finally, NAI acknowledges that a termination of the Purchase Option and
NAI's Initial Remarketing Rights and Obligations pursuant to this notice shall
cause the Lease to terminate as of the Base Rent Commencement Date pursuant to
subparagraph 1(b) of the Lease.
37
Executed this _____ day of ______________, 19___.
NETWORK APPLIANCE, INC.
Name:_____________________________________________
Title:____________________________________________
[cc all Participants]
Exhibit F - Page 2