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Exhibit 10.32
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PURCHASE AGREEMENT
(PHASE II - LAND)
BETWEEN
BNP LEASING CORPORATION
("BNPLC")
AND
NETWORK APPLIANCE, INC.
("NAI")
MAY 3, 1999
(SUNNYVALE, CALIFORNIA)
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TABLE OF CONTENTS
Page
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 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 5
(C) BNPLC's Right to Sell 6
(D) NAI's Right to Excess Sales Proceeds 6
(E) Permitted Transfers During NAI's Extended Remarketing Period 7
3. TERMS OF CONVEYANCE UPON PURCHASE 7
4. SURVIVAL AND TERMINATION OF THE RIGHTS AND OBLIGATIONS OF NAI AND BNPLC 7
(A) Status of this Agreement Generally 7
(B) Intentionally Deleted. 8
(C) Intentionally Deleted 8
(D) Automatic Termination of NAI's Rights 8
(E) Termination of NAI's Extended Remarketing Rights to Permit
a Sale by BNPLC 8
(F) Payment Only to BNPLC 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 II - LAND)
This PURCHASE AGREEMENT (PHASE II - 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 May
3, 1999, the Effective Date. ("EFFECTIVE DATE" and other capitalized terms used
and not otherwise defined in this Agreement are intended to have the meanings
assigned to them in the Common Definitions and Provisions Agreement (Phase I -
Land) executed by BNPLC and NAI contemporaneously with this Agreement. By this
reference, the Common Definitions and Provisions Agreement (Phase II - 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 , 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 Agreement (Phase II - 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 Contract, 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 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 , 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
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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 II - Land).
(y) No Event of Default, other than an Issue 97-1
Non-performance-related Subjective Event of Default, shall occur
on or be continuing on the Designated Sale Date.
2) If either of the conditions listed in subparagraph 1) preceding
are not satisfied, the "MAXIMUM REMARKETING OBLIGATION" will equal the
Break Even Price.
If any Supplemental Payment or other amount payable to BNPLC pursuant to this
subparagraph 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 (other than
Excluded Deposit Taker Losses).
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(2) Determination of Third Party Price. The Third Party Price required of
any Applicable Purchaser purchasing from BNPLC under subparagraph 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 II - Land), NAI does not
deliver a Remarketing Notice to BNPLC within the time period specified
above, then the Third Party Price will be an amount determined in good
faith by BNPLC as constituting reasonably equivalent value for the
Property and any Escrowed Proceeds, but in no event more than the
Break Even Price.
If any payment to BNPLC by an Applicable Purchaser hereunder is held to
constitute a preference or a voidable transfer under Applicable Law, or
must for any other reason be refunded by BNPLC to the Applicable Purchaser
or to another Person, and if such payment to BNPLC reduced or had the
effect of reducing a Supplemental Payment or increased or had the effect of
increasing any excess sale proceeds paid to NAI pursuant to subparagraph
1(A)(2)(b) or pursuant to subparagraph , 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 (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 . 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 .
(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 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
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against the Property because of a judgment rendered against BNPLC and any
leasehold or other interests conveyed by BNPLC in the ordinary course of BNPLC's
business), but not including personal obligations of NAI to BNPLC under the Land
Lease or other Operative Documents (including obligations arising under the
indemnities therein). Anyone accepting or taking any interest in the Property by
or through BNPLC after the date of this Agreement shall acquire such interest
subject to the Purchase Option and NAI's Initial Remarketing Rights and
Obligations. Further, NAI and any Applicable Purchaser shall be entitled to pay
any payment required by this Agreement for the purchase of the Property directly
to BNPLC notwithstanding any prior conveyance or assignment by BNPLC, voluntary
or otherwise, of any right or interest in this Agreement or the Property, and
neither NAI nor any Applicable Purchaser shall be responsible for the proper
distribution or application of any such payments by BNPLC; and any such payment
to BNPLC shall discharge the obligation of NAI to cause such payment to all
Persons claiming an interest in such payment. Contemporaneously with the
execution of this Agreement, the parties shall record a memorandum of this
Agreement for purposes of effecting constructive notice to all Persons of NAI's
rights under this Agreement, including its rights under this subparagraph.
(E) Security for the Purchase Option and NAI's Initial Remarketing Rights and
Obligations . To secure BNPLC's obligation to sell the Property pursuant to this
Paragraph and to pay any damages to NAI caused by a breach of such obligations,
including any such breach caused by a rejection or termination of this Agreement
in any bankruptcy or insolvency proceeding instituted by or against BNPLC, as
debtor, BNPLC does hereby grant to NAI a lien and security interest against all
rights, title and interests of BNPLC from time to time in and to the Land and
other Property. NAI may enforce such lien and security interest judicially after
any such breach by BNPLC, but not otherwise. Contemporaneously with the
execution of this Agreement, NAI and BNPLC will execute a memorandum of this
Agreement which is in recordable form and which specifically references the lien
granted in this subparagraph, and NAI shall be entitled to record such
memorandum at any time prior to the Designated Sale Date.
(F) Delivery of Books and Records If BNPLC Retains the Property . Unless NAI or
its Affiliate or another Applicable Purchaser purchases the Property pursuant to
Paragraph , 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.
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).
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(5) At least thirty days prior to the Final Sale Date, NAI shall have
notified BNPLC of (x) the date proposed by NAI as the Final Sale Date
(which must be a Business Day), (y) the full legal name of the Applicable
Purchaser and such other information as will be required to prepare the
Sale Closing Documents, and (z) the amount of the purchase price that the
Applicable Purchaser will pay (consistent with the minimum required
pursuant to the other provisions of this subparagraph 2(A)) for the
Property.
(B) Definition of Minimum Extended Remarketing Price . As used herein, "MINIMUM
EXTENDED REMARKETING PRICE" means an amount equal to the sum of the following:
(1) the amount by which the Break Even Price computed on the Designated
Sale Date exceeds any Supplemental Payment actually paid to BNPLC on the
Designated Sale Date, together with interest on such excess computed at the
Default Rate from the period commencing on the Designated Sale Date and
ending on the Final Sale Date, plus
(2) all out-of-pocket costs and expenses (including withholding taxes [if
any], other than Excluded Taxes, and Attorneys' Fees) incurred by BNPLC in
connection with the sale to the Applicable Purchaser, to the extent not
already included in the computation of Break Even Price, and plus
(3) the sum of all Impositions, insurance premiums and other Losses of
every kind suffered or incurred by BNPLC or any other Interested Party with
respect to the ownership, operation or maintenance of the Property on or
after the Designated Sale Date (except to the extent already reimbursed by
any lessee of the Property after the Designated Sale Date), together with
interest on such Impositions, insurance premiums and other Losses computed
at the Default Rate from the date paid or incurred to the Final Sale Date.
If, however, Losses described in the preceding clause (3) consist of claims
against BNPLC or another Interested Party that have not been liquidated prior to
the Final Sale Date (and, thus, such Losses have yet to be fixed in amount as of
the Final Sale Date), then NAI may elect to exclude any such Losses from the
computation of the Minimum Extended Remarketing Price by providing to BNPLC, for
the benefit of BNPLC and other Interested Parties, a written agreement to
indemnify and defend BNPLC and other Interested Parties against such Losses. To
be effective hereunder for purposes of reducing the Minimum Extended Remarketing
Price (and, thus, the Break 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 or this Paragraph , 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 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
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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 II - 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 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 , 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
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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 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.
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(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
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
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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 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.]
9
13
IN WITNESS WHEREOF, NAI and BNPLC have caused this Agreement to be executed
as of May 3, 1999.
"NAI"
NETWORK APPLIANCE, INC.
By:
--------------------------------
Name:
---------------------------
Title:
----------------------
10
14
[Continuation of signature pages to Purchase Agreement (Phase II - Land) dated
to be effective May 3, 1999]
"BNPLC"
BNP LEASING CORPORATION
By:
--------------------------------
Lloyd G. Cox, Vice President
11
15
EXHIBIT A
LEGAL DESCRIPTION
All that certain real property situate in the City of Sunnyvale, State of
California, described as follows: All that certain Real Property in the City of
Sunnyvale, County of Santa Clara, State of California, described as follows:
PARCEL ONE
All of Parcel "A" as said Parcel is shown upon that certain Parcel Map entitled
"For: Moffett Park Association, being a Redivision of Parcel "B" of Parcel Map
recorded in Book 292 of Maps in Page 41", which Map was filed for record in the
Office of the Recorder of the County of Santa Clara, State of California, on
August 28, 1974 in Book 345 of Map, at Page 20.
PARCEL TWO
An Easement for pedestrian and motor vehicle Right-of-Way for the purpose of
ingress over a portion of land more particularly described as follows:
A 15 foot strip of land over a portion of "Parcel "A", as said Parcel "A" is
shown on that certain Parcel Map filed for record on October 25, 1966 in Book
216 of Maps, at Page 2, records of Santa Clara County, and being more
particularly described as follows:
Commencing at the Northeast corner of said Parcel "A", said Northeast corner
also being a point on the center line of Crossman Road (90.00 feet wide); thence
North 75 deg 07' 58" West along the Northerly line of said parcel "A", a
distance of 85.00 feet to the True Point of Beginning of this description;
thence continuing along said Northerly line North 75 deg 07' 58" West, a
distance of 322.50 feet; thence South 14 deg 52' 02" West, a distance of 15.00
feet; thence South 75 deg 07' 58" East parallel with and distance 15.00 feet
Southerly measured at right angles from the Northerly line of said Parcel "A" a
distance of 322.50 feet; thence North 14 deg 52' 02" East, a distance of 15.00
feet to the True Point of Beginning.
1
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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.
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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.
2
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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
------------------------
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
------------------------
19
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.]
All that certain real property situate in the City of Sunnyvale, State of
California, described as follows:
PARCEL ONE
All of Parcel "A" as said Parcel is shown upon that certain Parcel Map entitled
"For: Moffett Park Association, being a Redivision of Parcel "B" of Parcel Map
recorded in Book 292 of Maps in Page 41", which Map was filed for record in the
Office of the Recorder of the County of Santa Clara, State of California, on
August 28, 1974 in Book 345 of Map, at Page 20.
PARCEL TWO
An Easement for pedestrian and motor vehicle Right-of-Way for the purpose of
ingress over a portion of land more particularly described as follows:
A 15 foot strip of land over a portion of "Parcel "A", as said Parcel "A" is
shown on that certain Parcel Map filed for record on October 25, 1966 in Book
216 of Maps, at Page 2, records of Santa Clara County, and being more
particularly described as follows:
Commencing at the Northeast corner of said Parcel "A", said Northeast corner
also being a point on the center line of Crossman Road (90.00 feet wide); thence
North 75 deg 07' 58" West along the Northerly line of said parcel "A", a
distance of 85.00 feet to the True Point of Beginning of this description;
thence continuing along said Northerly line North 75 deg 07' 58" West, a
distance of 322.50 feet; thence South 14 deg 52' 02" West, a distance of 15.00
feet; thence South 75 deg 07' 58" East parallel with and distance 15.00 feet
Southerly measured at right angles from the Northerly line of said Parcel "A" a
distance of 322.50 feet; thence North 14 deg 52' 02" East, a distance of 15.00
feet to the True Point of Beginning.
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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 II - Land) incorporated by reference into the Lease Agreement
(Phase II - 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 [current year], a lien not yet due or payable.
2. General and Special Taxes and Assessments, if any, for the fiscal year
1998-99.
Assessment No.: 110-32-004
Code No.: 09-059
First Installment: $34,099.75 Paid
Second Installment: $34,099.75 Payable, but not yet due
Assessed Valuation of
Personal Property: None
Homeowners Exemption: None
3. Supplemental Taxes for the fiscal year 1998-99 assessed pursuant to the
provisions of Chapter 3.5 (commencing with Section 75) of the Revenue and
Taxation Code of the State of California.
Assessors Parcel No.: 110-32-004-71
First Installment: Paid
Second Installment: $4,217.87, Payable, but not yet due
4. Supplemental Taxes for the fiscal year 1998-99 assessed pursuant to the
provisions of Chapter 3.5 (commencing with Section 75) of the Revenue and
Taxation Code of the State of California.
Assessors Parcel No.: 110-32-004-72
First Installment: Paid
Second Installment: $16,226.03, Payable, but not yet due
5. The Lien of Supplemental Taxes, if any, assessed pursuant to the provisions
of Chapter 3.5 (commencing with Section 75) of the Revenue and Taxation
Code of the State of California, resulting from changes of ownership or
completion of construction on or after the date of this policy.
6. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
4
21
In Favor Of: City of Sunnyvale, A Municipal Corporation
For: Slope Easement
Recorded: October 9, 1964, in Book 6695 at Page 430,
Official Records
Affects: The Southeasterly 18 feet of Said Land
7. An easement affecting the portion of said land and for the purposes
stated herein, and incidental purposes,
In Favor Of: City of Sunnyvale, A Municipal Corporation
For: Public Utilities
Recorded: October 9, 1964, in Book 6695 at Page 450,
Official Records
Affects: The Southeasterly 7 feet of Said Land
8. Covenants, Conditions and Restrictions in the Declaration of Restrictions;
which provide that a violation thereof shall not defeat or render invalid
the lien of any Mortgage or Deed of Trust made in good faith and for value.
Said Covenants, Conditions or Restrictions do not provide for reversion of
title in the event of a breach thereof. Restrictions, if any, based upon
race, color, religion, sex, handicap, familial status, or national origin
are deleted, unless and only to the extent that said covenant (a) is exempt
under Chapter 42, Section 3607, of the United States Code or (b) relates to
handicap but does not discriminate against handicapped persons.
Executed By: Moffett Park Associates, A Partnership
Recorded: December 23, 1971 in Book 9640 at Page 443 of
Official Records
An Assignment and Assumption
Executed by: Moffett Park Associates, A Partnership
To: The Prudential Insurance Company of America,
a New Jersey Corporation
Recorded: February 8, 1977 in Book C583 at Page 685 of
Official Records
9. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: Moffett Park Associates, A Partnership
For: Private and Public Utility Purposes
Recorded: November 29, 1974, in Book B190, page 398, as
Instrument No. 4903681, Official Records
Affects: The Northerly 5 feet of Said Land
10. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: Paul Enterprises, A Partnership, and Northwest
Poultry and Dairy Products Co., an Oregon
Corporation
For: 5 Foot Wide Storm Drain Easement
Recorded: June 17, 1975, in Book B467, page 167, as
Instrument No. 5032895, Official Records
Affects: As follows:
PARCEL ONE
A 5.00 Foot Wide Storm Drain easement 2.50 feet on each side of the center
line of an existing Storm Drain Pipe, said center line of said pipe being
described as follows:
5
22
Commencing at the Southwest corner of Parcel "A" as said Parcel "A" is
shown on that certain Parcel Map filed for record on August 28, 1974, in
Book 345 of Maps at Page 20, records of Santa Clara County,
Thence North 14 deg 51' 33" East along the Westerly line of said Parcel
"A", a distance of 2.50 feet to the Point of Intersection of said center
line of said existing pipe and the True Point of Beginning of this
description;
Thence South 75 deg 07' 58" East parallel with and istant 2.50 feet
Northerly measured at right angles, from the Southerly line of siad Parcel
"A' and along said existing pipe, a distance of 407.55 feet;
Thence North 14 deg 52' 02" East parallel with and distant 42.50 feet
Westerly measured at right angles from the Easterly line of said Parcel "A"
and along said existing pipe, a distance of 215 feet to an existing catch
basin;
Thence South 75 deg 07' 58" East on a line that is perpendicular to the
Easterly line of said Parcel "A" and along said existing pipe, a distance
of 42.50 feet to a point on the Easterly line of said Parcel "A".
The side lines of said 5.00 Easement as described above shall be prolonged
or shortened so as to form a continuous 5.00 foot right of way from said
Westerly line of said Parcel "A" to said Easterly line of said Parcel "A".
PARCEL TWO
A 5.00 foot wide Storm Drain Easement 2.50 feet on each side of the center
line of an existing 12 inch storm drain pipe, said center line of said pipe
being described as follows:
Commencing at the Southwestern corner of Parcel "A" as said Parcel "A" is
shown on that certain Parcel Map filed for record on August 28, 1974 in
Book 345 of Maps, at Page 20, records of Santa Clara County;
Thence North 14 deg 51' 33" East along the Westerly line of said Parcel "A"
a distance of 2.50 feet to the Point of Intersection of the center line of
the existing Storm Drain Pipe described in Parcel 1 above;
Thence South 75 deg 07' 58" East along the center line of said pipe
described in said Parcel 1, a distance of 35.00 feet to the Point of
Intersection of the center line of an existing 12 inch Storm Drain Pipe and
the True Point of Beginning of this description;
Thence North 14 deg 51' 33" East along the center line of said existing 12
inch pipe, a distance of 87.00 feet;
Thence North 75 deg 07' 58" West and continuing along a center line of an
existing 6 inch Storm Drain Pipe, a distance of 35.00 feet to a point on
the Westerly line of said Parcel "A".
The sidelines of said 5.00 Easement as described above shall be prolonged
or shortened so as to form a continuous 5.00 foot Right-of-Way from the
Northerly side of the pipe described in Parcel 1 above to the Westerly line
of said Parcel "A".
11. An easement affecting the portion of said land and for the purposes
stated herein, and incidental purposes,
In Favor Of: The Prudential Insurance Company of America, a
New Jersey Corporation
For: A 5 foot wide Storm Drain Easement
6
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Recorded: June 17, 1975 in Book B467, page 173, as Instrument
No. 5032896 Official Records
Affects: As follows:
PARCEL ONE
A 5.00 foot wide Storm Drain Easement 2.50 feet on each side of the center
line of an existing 12 inch Storm Drain Pipe, said center line of said pipe
being described as follows:
Commencing at the Southeast corner of Parcel "A" as said Parcel "A" is
shown on that certain Parcel Map filed for record on August 28, 1974 in
Book 345 of Maps at Page 20, records of Santa Clara County,
Thence North 14 deg 52' 02" East along the Easterly line of said Parcel
"A", a distance of 2.50 feet to the Point of Intersection of said center
line of said existing storm drain pipe running along the Southerly line of
said Parcel "A";
Thence North 75 deg 07' 58" West along the center line of last said pipe
running along the Southerly line of Parcel "A" a distance of 156.00 feet to
the Point of Intersection of the center line of an existing 12 inch storm
drain pipe and the True Point of Beginning of this description;
Thence North 14 deg 52' 02" East along the center line of said existing 12
inch pipe a distance of 15.00 feet.
The side lines of said 5.00 Easement as described above shall be prolonged
or shortened so as to form a continuous 5.00 foot Right-of-Way from the
said True Point of Beginning of this description to point 2.50 feet North
of an existing storm drain inlet structure.
PARCEL TWO
A 5.00 foot wide storm drain easement, 2.50 feet on each side of the center
line of an existing 12 inch storm drain pipe, said center line of said pipe
being described as follows:
Commencing at the Southeast corner of Parcel "A" a said Parcel "A" is shown
on that certain Parcel Map filed for record on August 28, 1974 in Book 345
of Maps, at Page 20, records of Santa Clara County;
Thence North 14 deg 52' 02" East along the Easterly line of said Parcel "A"
a distance of 2.50 feet to the Point of Intersection of the center line of
the existing storm drain pipe running thence along the Southerly line of
said Parcel "A";
Thence North 75 deg 07' 58" West along the center line of last said pipe
running along the Southerly line of said Parcel "A", a distance of 289.00
feet to the Point of Intersection of the center line of an existing 12 inch
storm drain pipe and the True point of Beginning of this description;
Thence North 14 deg 52' 02" East along the center line of said existing 12
inch pipe, a distance of 15.00 feet.
The side lines of said 5.00 foot easement as described above shall be
prolonged or shortened so as to form a continuous 5.00 foot Right-of-Way
from the said True Point of Beginning of this description to point 2.50
feet North of an existing storm drain inlet structure.
PARCEL THREE
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A 5.00 foot storm drain easement, 2.50 feet on each side of the center line
of an existing storm drain pipe, said center line of said pipe being
described as follows:
Commencing at the Southwest corner of Parcel "A" as said Parcel "A" is
shown on that certain Parcel Map filed for record on August 28, 1974 in
Book 345 of Maps, at Page 20, records of Santa Clara County;
Thence North 14 deg 51' 33" East along the Westerly line of said Parcel "A"
a distance of 2.50 feet to the Point of Intersection of the center line of
the existing pipe;
Thence South 75 deg 07'58" East parallel with and distant 2.50 feet
Northerly, measured at right angles, from the Southerly line of said Parcel
"A" and along said existing pipe, a distance of 161.05 feet and the True
Point of Beginning of this description;
Thence again South 75 deg k07' 58" East continuing along said existing pipe
a distance of 246.50 feet;
Thence North 14 deg 52' 02" East parallel with and distant 42.50 feet
Westerly, measured at right angles, from the Easterly line of said Parcel
"A" and along said existing pipe, a distance of 215 feet to an existing
catch basin;
Thence South 75 deg 07' 58" East on a line that is perpendicular to the
Easterly line of said Parcel "A" and along said existing pipe, a distance
of 42.50 feet to a point on the Easterly line of said Parcel "A".
The side lines of said 5.00 Easement as described above shall be prolonged
or shortened so as to form a continuous 5.00 foot right of way from said
Westerly line of said Parcel "A" to said Easterly line of said Parcel "A".
12. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: The Prudential Insurance Company of America,
new Jersey Corporation
For: A pedestrian and motor vehicle Right-of-Way for
the purposes of Ingress and Egress from motor
vehicle parking spaces
Recorded: June 17, 1975, in Book B467, page 178, as Instrument
No. 5032897 Official
Records
Affects: As follows:
An 11 foot strip of land over a portion of Parcel "A" as said Parcel "A" is
shown on that certain Parcel Map filed for record on August 28, 1974, in
Book 345 of Maps, at Page 20, records of Santa Clara County and being more
particularly described as follows:
Commencing at the Southeast corner of said Parcel "A", said Southeast
corner also being a point on the Westerly line of Crossman Road (90.00 feet
wide); Thence North 75 deg 7' 58" West along the Southerly line of said
Parcel "A", a distance of 40.00 feet to the True Point of Beginning of this
description;
Thence continuing along said Southerly line North 75 deg 07' 58" West, a
distance of 322.50 feet;
Thence North 14 deg 52' 02" East, a distance of 11.00 feet;
8
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Thence South 75 deg 07' 58" East parallel with and distant Northerly 11.00
feet measured at right angles from said Southerly line of said Parcel "A",
a distance of 322.50 feet; thence South 14 deg 52' 02" West, a distance of
11.00 feet to the True Point of Beginning.
13. Any rights, Interests or Claims which may exist or arise by reason of the
following facts shown by a survey made by Kier & Wright, dated March 18,
1999, as Job No. 96214-2 and inspections of said land:
(A) the fact that the landscaping area, patio and walkways located along
the northwesterly boundary is for the common use of the adjoining property
lying to the northwest of said land.
(B) the fact that the driveway located near the most northerly corner
along the northeasterly boundary is for the common use of the adjoining
property lying to the northeast of said land.
(C) the fact that the fence along the northwesterly boundary and across
the most northerly corner encroaches onto the adjoining properties lying to
the northwest and northeast of said land.
(D) the fact that the fence located near the southwesterly corner on the
southwesterly boundary encroaches onto the adjoining property lying to the
southwest of said land.
(E) the fact that the concrete curbs located along the northeasterly and
southeasterly boundaries encroach onto the 7.00 foot Public Utility
easement (6695-OR-450); onto the 18.00 foot Slope easement (6695-OR-430);
onto the 5.00 foot Storm Drain easement (9790-OR-380, B467-OR-167 and
B467-OR-173); and onto the 5.00 foot Public Utility easement (B190-OR-398).
14. Lease Agreement (Phase II - Land) dated May 3, 1999, by and between BNP
Leasing Corporation, as lessor, and Network Appliance, Inc., as lessee, and
Lease Agreement (Phase II - Improvements) dated May 3, 1999, by and between
BNP Leasing Corporation, as lessor, and Network Appliance, Inc., as lessee.
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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.
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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
-------------------------------------
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
----------------------------------
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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.]
All that certain real property situate in the City of Sunnyvale, State of
California, described as follows:
PARCEL ONE
All of Parcel "A" as said Parcel is shown upon that certain Parcel Map entitled
"For: Moffett Park Association, being a Redivision of Parcel "B" of Parcel Map
recorded in Book 292 of Maps in Page 41", which Map was filed for record in the
Office of the Recorder of the County of Santa Clara, State of California, on
August 28, 1974 in Book 345 of Map, at Page 20.
PARCEL TWO
An Easement for pedestrian and motor vehicle Right-of-Way for the purpose of
ingress over a portion of land more particularly described as follows:
A 15 foot strip of land over a portion of "Parcel "A", as said Parcel "A" is
shown on that certain Parcel Map filed for record on October 25, 1966 in Book
216 of Maps, at Page 2, records of Santa Clara County, and being more
particularly described as follows:
Commencing at the Northeast corner of said Parcel "A", said Northeast corner
also being a point on the center line of Crossman Road (90.00 feet wide); thence
North 75 deg 07' 58" West along the Northerly line of said parcel "A", a
distance of 85.00 feet to the True Point of Beginning of this description;
thence continuing along said Northerly line North 75 deg 07' 58" West, a
distance of 322.50 feet; thence South 14 deg 52' 02" West, a distance of 15.00
feet; thence South 75 deg 07' 58" East parallel with and distance 15.00 feet
Southerly measured at right angles from the Northerly line of said Parcel "A" a
distance of 322.50 feet; thence North 14 deg 52' 02" East, a distance of 15.00
feet to the True Point of Beginning.
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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 II - Land) incorporated by reference into the Lease Agreement
(Phase II - 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 [current year], a lien not yet due or payable.
2. General and Special Taxes and Assessments, if any, for the fiscal year
1998-99.
Assessment No.: 110-32-004
Code No.: 09-059
First Installment: $34,099.75 Paid
Second Installment: $34,099.75 Payable, but not yet due
Assessed Valuation of
Personal Property: None
Homeowners Exemption: None
3. Supplemental Taxes for the fiscal year 1998-99 assessed pursuant to the
provisions of Chapter 3.5 (commencing with Section 75) of the Revenue and
Taxation Code of the State of California.
Assessors Parcel No.: 110-32-004-71
First Installment: Paid
Second Installment: $4,217.87, Payable, but not yet due
4. Supplemental Taxes for the fiscal year 1998-99 assessed pursuant to the
provisions of Chapter 3.5 (commencing with Section 75) of the Revenue and
Taxation Code of the State of California.
Assessors Parcel No.: 110-32-004-72
First Installment: Paid
Second Installment: $16,226.03, Payable, but not yet due
5. The Lien of Supplemental Taxes, if any, assessed pursuant to the provisions
of Chapter 3.5 (commencing with Section 75) of the Revenue and Taxation
Code of the State of California, resulting from changes of ownership or
completion of construction on or after the date of this policy.
6. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
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In Favor Of: City of Sunnyvale, A Municipal
Corporation
For: Slope Easement
Recorded: October 9, 1964, in Book 6695 at
Page 430, Official Records
Affects: The Southeasterly 18 feet of Said Land
7. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: City of Sunnyvale, A Municipal
Corporation
For: Public Utilities
Recorded: October 9, 1964, in Book 6695 at
Page 450, Official Records
Affects: The Southeasterly 7 feet of Said Land
8. Covenants, Conditions and Restrictions in the Declaration of Restrictions;
which provide that a violation thereof shall not defeat or render invalid
the lien of any Mortgage or Deed of Trust made in good faith and for value.
Said Covenants, Conditions or Restrictions do not provide for reversion of
title in the event of a breach thereof. Restrictions, if any, based upon
race, color, religion, sex, handicap, familial status, or national origin
are deleted, unless and only to the extent that said covenant (a) is exempt
under Chapter 42, Section 3607, of the United States Code or (b) relates to
handicap but does not discriminate against handicapped persons.
Executed By: Moffett Park Associates, A Partnership
Recorded: December 23, 1971 in Book 9640 at
Page 443 of Official Records
An Assignment and Assumption
Executed by: Moffett Park Associates, A Partnership
To: The Prudential Insurance Company of
America, a New Jersey Corporation
Recorded: February 8, 1977 in Book C583 at
Page 685 of Official Records
9. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: Moffett Park Associates, A Partnership
For: Private and Public Utility Purposes
Recorded: November 29, 1974, in Book B190,
page 398, as Instrument No. 4903681,
Official Records
Affects: The Northerly 5 feet of Said Land
10. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: Paul Enterprises, A Partnership, and
Northwest Poultry and Dairy Products
Co., an Oregon Corporation
For: 5 Foot Wide Storm Drain Easement
Recorded: June 17, 1975, in Book B467, page 167,
as Instrument No. 5032895, Official
Records
Affects: As follows:
PARCEL ONE
A 5.00 Foot Wide Storm Drain easement 2.50 feet on each side of the center
line of an existing Storm Drain Pipe, said center line of said pipe being
described as follows:
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Commencing at the Southwest corner of Parcel "A" as said Parcel "A" is
shown on that certain Parcel Map filed for record on August 28, 1974, in
Book 345 of Maps at Page 20, records of Santa Clara County,
Thence North 14 deg 51' 33" East along the Westerly line of said Parcel
"A", a distance of 2.50 feet to the Point of Intersection of said center
line of said existing pipe and the True Point of Beginning of this
description;
Thence South 75 deg 07' 58" East parallel with and distant 2.50 feet
Northerly measured at right angles, from the Southerly line of said Parcel
"A" and along said existing pipe, a distance of 407.55 feet;
Thence North 14 deg 52' 02" East parallel with and distant 42.50 feet
Westerly measured at right angles from the Easterly line of said Parcel "A"
and along said existing pipe, a distance of 215 feet to an existing catch
basin;
Thence South 75 deg 07' 58" East on a line that is perpendicular to the
Easterly line of said Parcel "A" and along said existing pipe, a distance
of 42.50 feet to a point on the Easterly line of said Parcel "A".
The side lines of said 5.00 Easement as described above shall be prolonged
or shortened so as to form a continuous 5.00 foot right of way from said
Westerly line of said Parcel "A" to said Easterly line of said Parcel "A".
PARCEL TWO
A 5.00 foot wide Storm Drain Easement 2.50 feet on each side of the center
line of an existing 12 inch storm drain pipe, said center line of said pipe
being described as follows:
Commencing at the Southwestern corner of Parcel "A" as said Parcel "A" is
shown on that certain Parcel Map filed for record on August 28, 1974 in
Book 345 of Maps, at Page 20, records of Santa Clara County;
Thence North 14 deg 51' 33" East along the Westerly line of said Parcel "A"
a distance of 2.50 feet to the Point of Intersection of the center line of
the existing Storm Drain Pipe described in Parcel 1 above;
Thence South 75 deg 07' 58" East along the center line of said pipe
described in said Parcel 1, a distance of 35.00 feet to the Point of
Intersection of the center line of an existing 12 inch Storm Drain Pipe and
the True Point of Beginning of this description;
Thence North 14 deg 51' 33" East along the center line of said existing 12
inch pipe, a distance of 87.00 feet;
Thence North 75 deg 07' 58" West and continuing along a center line of an
existing 6 inch Storm Drain Pipe, a distance of 35.00 feet to a point on
the Westerly line of said Parcel "A".
The sidelines of said 5.00 Easement as described above shall be prolonged
or shortened so as to form a continuous 5.00 foot Right-of-Way from the
Northerly side of the pipe described in Parcel 1 above to the Westerly line
of said Parcel "A".
11. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: The Prudential Insurance Company of
America, a New Jersey Corporation
For: A 5 foot wide Storm Drain Easement
6
32
Recorded: June 17, 1975 in Book B467, page 173,
as Instrument No. 5032896 Official
Records
Affects: As follows:
PARCEL ONE
A 5.00 foot wide Storm Drain Easement 2.50 feet on each side of the center
line of an existing 12 inch Storm Drain Pipe, said center line of said pipe
being described as follows:
Commencing at the Southeast corner of Parcel "A" as said Parcel "A" is
shown on that certain Parcel Map filed for record on August 28, 1974 in
Book 345 of Maps at Page 20, records of Santa Clara County,
Thence North 14 deg 52' 02" East along the Easterly line of said Parcel
"A", a distance of 2.50 feet to the Point of Intersection of said center
line of said existing storm drain pipe running along the Southerly line of
said Parcel "A";
Thence North 75 deg 07' 58" West along the center line of last said pipe
running along the Southerly line of Parcel "A" a distance of 156.00 feet to
the Point of Intersection of the center line of an existing 12 inch storm
drain pipe and the True Point of Beginning of this description;
Thence North 14 deg 52' 02" East along the center line of said existing 12
inch pipe a distance of 15.00 feet.
The side lines of said 5.00 Easement as described above shall be prolonged
or shortened so as to form a continuous 5.00 foot Right-of-Way from the
said True Point of Beginning of this description to point 2.50 feet North
of an existing storm drain inlet structure.
PARCEL TWO
A 5.00 foot wide storm drain easement, 2.50 feet on each side of the center
line of an existing 12 inch storm drain pipe, said center line of said pipe
being described as follows:
Commencing at the Southeast corner of Parcel "A" a said Parcel "A" is shown
on that certain Parcel Map filed for record on August 28, 1974 in Book 345
of Maps, at Page 20, records of Santa Clara County;
Thence North 14 deg 52' 02" East along the Easterly line of said Parcel "A"
a distance of 2.50 feet to the Point of Intersection of the center line of
the existing storm drain pipe running thence along the Southerly line of
said Parcel "A";
Thence North 75 deg 07' 58" West along the center line of last said pipe
running along the Southerly line of said Parcel "A", a distance of 289.00
feet to the Point of Intersection of the center line of an existing 12 inch
storm drain pipe and the True point of Beginning of this description;
Thence North 14 deg 52' 02" East along the center line of said existing 12
inch pipe, a distance of 15.00 feet.
The side lines of said 5.00 foot easement as described above shall be
prolonged or shortened so as to form a continuous 5.00 foot Right-of-Way
from the said True Point of Beginning of this description to point 2.50
feet North of an existing storm drain inlet structure.
PARCEL THREE
7
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A 5.00 foot storm drain easement, 2.50 feet on each side of the center line
of an existing storm drain pipe, said center line of said pipe being
described as follows:
Commencing at the Southwest corner of Parcel "A" as said Parcel "A" is
shown on that certain Parcel Map filed for record on August 28, 1974 in
Book 345 of Maps, at Page 20, records of Santa Clara County;
Thence North 14 deg 51' 33" East along the Westerly line of said Parcel "A"
a distance of 2.50 feet to the Point of Intersection of the center line of
the existing pipe;
Thence South 75 deg 07'58" East parallel with and distant 2.50 feet
Northerly, measured at right angles, from the Southerly line of said Parcel
"A" and along said existing pipe, a distance of 161.05 feet and the True
Point of Beginning of this description;
Thence again South 75 deg k07' 58" East continuing along said existing pipe
a distance of 246.50 feet;
Thence North 14 deg 52' 02" East parallel with and distant 42.50 feet
Westerly, measured at right angles, from the Easterly line of said Parcel
"A" and along said existing pipe, a distance of 215 feet to an existing
catch basin;
Thence South 75 deg 07' 58" East on a line that is perpendicular to the
Easterly line of said Parcel "A" and along said existing pipe, a distance
of 42.50 feet to a point on the Easterly line of said Parcel "A".
The side lines of said 5.00 Easement as described above shall be prolonged
or shortened so as to form a continuous 5.00 foot right of way from said
Westerly line of said Parcel "A" to said Easterly line of said Parcel "A".
12. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: The Prudential Insurance Company of
America, new Jersey Corporation
For: A pedestrian and motor vehicle
Right-of-Way for the purposes of Ingress
and Egress from motor vehicle parking
spaces
Recorded: June 17, 1975, in Book B467, page 178, as
Instrument No. 5032897 Official Records
Affects: As follows:
An 11 foot strip of land over a portion of Parcel "A" as said Parcel "A" is
shown on that certain Parcel Map filed for record on August 28, 1974, in
Book 345 of Maps, at Page 20, records of Santa Clara County and being more
particularly described as follows:
Commencing at the Southeast corner of said Parcel "A", said Southeast
corner also being a point on the Westerly line of Crossman Road (90.00 feet
wide); Thence North 75 deg 7' 58" West along the Southerly line of said
Parcel "A", a distance of 40.00 feet to the True Point of Beginning of this
description;
Thence continuing along said Southerly line North 75 deg 07' 58" West, a
distance of 322.50 feet;
Thence North 14 deg 52' 02" East, a distance of 11.00 feet;
8
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Thence South 75 deg 07' 58" East parallel with and distant Northerly 11.00
feet measured at right angles from said Southerly line of said Parcel "A",
a distance of 322.50 feet; thence South 14 deg 52' 02" West, a distance of
11.00 feet to the True Point of Beginning.
13. Any rights, Interests or Claims which may exist or arise by reason of the
following facts shown by a survey made by Kier & Wright, dated March 18,
1999, as Job No. 96214-2 and inspections of said land:
(A) the fact that the landscaping area, patio and walkways located along
the northwesterly boundary is for the common use of the adjoining property
lying to the northwest of said land.
(B) the fact that the driveway located near the most northerly corner
along the northeasterly boundary is for the common use of the adjoining
property lying to the northeast of said land.
(C) the fact that the fence along the northwesterly boundary and across
the most northerly corner encroaches onto the adjoining properties lying to
the northwest and northeast of said land.
(D) the fact that the fence located near the southwesterly corner on the
southwesterly boundary encroaches onto the adjoining property lying to the
southwest of said land.
(E) the fact that the concrete curbs located along the northeasterly and
southeasterly boundaries encroach onto the 7.00 foot Public Utility
easement (6695-OR-450); onto the 18.00 foot Slope easement (6695-OR-430);
onto the 5.00 foot Storm Drain easement (9790-OR-380, B467-OR-167 and
B467-OR-173); and onto the 5.00 foot Public Utility easement (B190-OR-398).
14. Lease Agreement (Phase II - Land) dated May 3, 1999, by and between BNP
Leasing Corporation, as lessor, and Network Appliance, Inc., as lessee, and
Lease Agreement (Phase II - Improvements) dated May 3, 1999, by and between
BNP Leasing Corporation, as lessor, and Network Appliance, Inc., as lessee.
9
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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
II - Land) dated as of May 3, 1999 (the "PURCHASE AGREEMENT"), between BNP
Leasing Corporation and Network Appliance, Inc., covering the land described in
Annex 1 attached hereto (the "LAND"). Incorporated by reference into the
Purchase Agreement is a Common Definitions and Provisions Agreement (Phase II -
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
10
36
Option described in Paragraph ) 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 ,
or ] 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 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 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.
2
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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 ).
(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.
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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:
(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 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.
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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 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 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
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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 .
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.
(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
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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 hereinabove 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;
(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.]
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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:
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[Continuation of signature pages to GROUND LEASE dated as of ___________, ____]
"BNPLC"
BNP LEASING CORPORATION
By:
----------------------------------
Name:
----------------------------
Title:
----------------------
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STATE OF ___________ )
)
COUNTY OF _____________ )
On _____________, _____, before me, ________________________, personally
appeared ____________________________, personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person whose name is subscribed
to the within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the person, or
the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature
----------------------------
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STATE OF ________ )
)
COUNTY OF __________ )
On ___________, _____, before me, ________________________, personally
appeared ____________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature
-----------------------------
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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:
PARCEL ONE
All of Parcel "A" as said Parcel is shown upon that certain Parcel Map entitled
"For: Moffett Park Association, being a Redivision of Parcel "B" of Parcel Map
recorded in Book 292 of Maps in Page 41", which Map was filed for record in the
Office of the Recorder of the County of Santa Clara, State of California, on
August 28, 1974 in Book 345 of Map, at Page 20.
PARCEL TWO
An Easement for pedestrian and motor vehicle Right-of-Way for the purpose of
ingress over a portion of land more particularly described as follows:
A 15 foot strip of land over a portion of "Parcel "A", as said Parcel "A" is
shown on that certain Parcel Map filed for record on October 25, 1966 in Book
216 of Maps, at Page 2, records of Santa Clara County, and being more
particularly described as follows:
Commencing at the Northeast corner of said Parcel "A", said Northeast corner
also being a point on the center line of Crossman Road (90.00 feet wide); thence
North 75 deg 07' 58" West along the Northerly line of said parcel "A", a
distance of 85.00 feet to the True Point of Beginning of this description;
thence continuing along said Northerly line North 75 deg 07' 58" West, a
distance of 322.50 feet; thence South 14 deg 52' 02" West, a distance of 15.00
feet; thence South 75 deg 07' 58" East parallel with and distance 15.00 feet
Southerly measured at right angles from the Northerly line of said Parcel "A" a
distance of 322.50 feet; thence North 14 deg 52' 02" East, a distance of 15.00
feet to the True Point of Beginning.
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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.]
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ANNEX 3
LIST OF DEVELOPMENT DOCUMENTS
NONE
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ANNEX 4
DETERMINATION OF FAIR RENTAL VALUE
Each annual payment of Ground Lease Rent will equal the Fair Rental Value,
computed as of the most recent Rental Determination Date when such payment
becomes due. As used in this Annex:
"FAIR RENTAL VALUE" means (and all appraisers and other persons
involved in the determination of the Fair Rental Value will be so advised)
the annual rent, as determined in accordance with this Annex, that would be
agreed upon between a willing tenant, under no compulsion to lease, and a
willing landlord, under no compulsion to lease, for unimproved land
comparable in size and location to the Land, exclusive of any Improvements
but assuming that there is no higher and better use for such land than as a
site for improvements of comparable size and utility to the Improvements,
at the time a determination is required under hereunder and taking into
consideration the condition of the Land, the encumbrances affecting the
title to the Land and all applicable zoning, land use approvals and other
governmental permits relating to the Land at the time of such
determination; and
"RENTAL DETERMINATION DATE" means the GL Effective Date and each fifth
anniversary of the GL Effective Date.
If Lessor and BNPLC have not agreed upon Fair Rental Value as of any Rental
Determination Date within one hundred eighty days after the such date, then Fair
Rental Value will be determined as follows:
(a) Lessor and BNPLC shall each appoint a real estate appraiser who is
familiar with rental values for properties in the vicinity of the Land and
who has not previously acted for either party. Each party will make the
appointment no later than ten days after receipt of notice from the other
party that the appraisal process described in this Annex has been invoked.
The agreement of the two appraisers as to Fair Rental Value will be binding
upon Lessor and BNPLC. If the two appraisers cannot agree upon the Fair
Rental Value within ten days following their appointment, they shall within
another ten days agree upon a third real estate appraiser. Immediately
thereafter, each of the first two appraisers will submit his best estimate
of the appropriate Fair Rental Value (together with a written report
supporting such estimate) to the third appraiser and the third appraiser
will choose between the two estimates. The estimate of Fair Rental Value
chosen by the third appraiser as the closest to the prevailing annual fair
rental value will be binding upon Lessor and BNPLC. Notification in writing
of this estimate shall be made to Lessor and BNPLC within fifteen days
following the selection of the third appraiser.
(b) If appraisers must be selected under the procedure set out above and
either BNPLC or Lessor fails to appoint an appraiser or fails to notify the
other party of such appointment within fifteen days after receipt of notice
that the prescribed time for appointing the appraisers has passed, then the
other party's appraiser will determine the Fair Rental Value. All
appraisers selected for the appraisal process set out in this Annex will be
disinterested, reputable, qualified real estate appraisers with the
designation of MAI or equivalent and with at least 5 years experience in
appraising properties comparable to the Land.
(c) If a third appraiser must be chosen under the procedure set out above,
he or she will be chosen on the basis of objectivity and competence, not on
the basis of his relationship with the other appraisers or the parties to
this Ground Lease, and the first two appraisers will be so advised.
Although the first two appraisers will be instructed to attempt in good
faith to agree upon the third appraiser, if for any reason they cannot
agree within the prescribed time, either Lessor and BNPLC may require the
first two appraisers to immediately submit its top choice for the third
appraiser to the then highest ranking officer of the California Bar
Association who will agree to help and who has no attorney/client or other
significant 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.
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(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.
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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 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.
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52
(f) Lessor will deliver a certificate of nonforeign status to BNPLC at
closing as needed to comply with the provisions of the Foreign Investors
Real Property Tax Act (FIRPTA) or any comparable federal, state or local
law in effect at the time.
(g) Lessor will also pay for and deliver to BNPLC at the closing an
owner's title insurance policy in the full amount of the Option Price,
issued by a title insurance company designated by BNPLC (or written
confirmation from the title company that it is then prepared to issue such
a policy), and subject only to standard printed exceptions which the title
insurance company refuses to delete or modify in a manner acceptable to
BNPLC and to Permitted Encumbrances.
(h) Lessor shall also deliver at the closing all other documents or things
reasonably required to be delivered to BNPLC or by the title insurance
company to evidence Lessor's ability to transfer the GL Property to BNPLC.
If Lessor and BNPLC do not otherwise agree upon the amount of the Option
Price within twenty days after BNPLC exercises the Option, the Option Price
shall be determined in accordance with the following procedure:
(1) Lessor and BNPLC shall each appoint a real estate appraiser who
is familiar with properties in the vicinity of the Land and who has
not previously acted for either party. Each party will make the
appointment no later than ten days after receipt of notice from the
other party that the appraisal process described in this Annex has
been invoked. The agreement of the two appraisers as to the Option
Price will be binding upon Lessor and BNPLC. If the two appraisers
cannot agree upon the Option Price within ten days following their
appointment, they shall within another ten days agree upon a third
real estate appraiser. Immediately thereafter, each of the first two
appraisers will submit his best estimate of the appropriate Option
Price (together with a written report supporting such estimate) to the
third appraiser and the third appraiser will choose between the two
estimates. The estimate of Option Price chosen by the third appraiser
as the closest to the prevailing fair market value will be binding
upon Lessor and BNPLC. Notification in writing of the Option Price
shall be made to Lessor and BNPLC within fifteen days following the
selection of the third appraiser.
(2) If appraisers must be selected under the procedure set out above
and either BNPLC or Lessor fails to appoint an appraiser or fails to
notify the other party of such appointment within fifteen days after
receipt of notice that the prescribed time for appointing the
appraisers has passed, then the other party's appraiser will determine
the Option Price. All appraisers selected for the appraisal process
set out in this Annex will be disinterested, reputable, qualified real
estate appraisers with the designation of MAI or equivalent and with
at least 5 years experience in appraising properties comparable to the
Land.
(3) If a third appraiser must be chosen under the procedure set out
above, he will be chosen on the basis of objectivity and competence,
not on the basis of his relationship with the other appraisers or the
parties to this Ground Lease, and the first two appraisers will be so
advised. Although the first two appraisers will be instructed to
attempt in good faith to agree upon the third appraiser, if for any
reason they cannot agree within the prescribed time, either Lessor and
BNPLC may require the first two appraisers to immediately submit its
top choice for the third appraiser to the then highest ranking officer
of the California Bar Association who will agree to help and who has
no attorney/client or other significant relationship to either Lessor
or BNPLC. Such officer 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.
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53
(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.
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EXHIBIT B-4
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. Prior to or contemporaneously with the delivery of this deed,
Grantor has conveyed or is conveying the Improvements and appurtenant rights and
easements to another party.
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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
---------------------------------
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
---------------------------------
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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.]
All that certain real property situate in the City of Sunnyvale, State of
California, described as follows:
PARCEL ONE
All of Parcel "A" as said Parcel is shown upon that certain Parcel Map entitled
"For: Moffett Park Association, being a Redivision of Parcel "B" of Parcel Map
recorded in Book 292 of Maps in Page 41", which Map was filed for record in the
Office of the Recorder of the County of Santa Clara, State of California, on
August 28, 1974 in Book 345 of Map, at Page 20.
PARCEL TWO
An Easement for pedestrian and motor vehicle Right-of-Way for the purpose of
ingress over a portion of land more particularly described as follows:
A 15 foot strip of land over a portion of "Parcel "A", as said Parcel "A" is
shown on that certain Parcel Map filed for record on October 25, 1966 in Book
216 of Maps, at Page 2, records of Santa Clara County, and being more
particularly described as follows:
Commencing at the Northeast corner of said Parcel "A", said Northeast corner
also being a point on the center line of Crossman Road (90.00 feet wide); thence
North 75 deg 07' 58" West along the Northerly line of said parcel "A", a
distance of 85.00 feet to the True Point of Beginning of this description;
thence continuing along said Northerly line North 75 deg 07' 58" West, a
distance of 322.50 feet; thence South 14 deg 52' 02" West, a distance of 15.00
feet; thence South 75 deg 07' 58" East parallel with and distance 15.00 feet
Southerly measured at right angles from the Northerly line of said Parcel "A" a
distance of 322.50 feet; thence North 14 deg 52' 02" East, a distance of 15.00
feet to the True Point of Beginning.
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57
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 II - Land) incorporated by reference into the Lease Agreement
(Phase II - 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 [current year], a lien not yet due or payable.
2. General and Special Taxes and Assessments, if any, for the fiscal year
1998-99.
Assessment No.: 110-32-004
Code No.: 09-059
First Installment: $34,099.75 Paid
Second Installment: $34,099.75 Payable, but not yet due
Assessed Valuation of
Personal Property: None
Homeowners Exemption: None
3. Supplemental Taxes for the fiscal year 1998-99 assessed pursuant to the
provisions of Chapter 3.5 (commencing with Section 75) of the Revenue and
Taxation Code of the State of California.
Assessors Parcel No.: 110-32-004-71
First Installment: Paid
Second Installment: $4,217.87, Payable, but not yet due
4. Supplemental Taxes for the fiscal year 1998-99 assessed pursuant to the
provisions of Chapter 3.5 (commencing with Section 75) of the Revenue and
Taxation Code of the State of California.
Assessors Parcel No.: 110-32-004-72
First Installment: Paid
Second Installment: $16,226.03, Payable, but not yet due
5. The Lien of Supplemental Taxes, if any, assessed pursuant to the provisions
of Chapter 3.5 (commencing with Section 75) of the Revenue and Taxation
Code of the State of California, resulting from changes of ownership or
completion of construction on or after the date of this policy.
6. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
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58
In Favor Of: City of Sunnyvale, A Municipal
Corporation
For: Slope Easement
Recorded: October 9, 1964, in Book 6695 at
Page 430, Official Records
Affects: The Southeasterly 18 feet of Said Land
7. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: City of Sunnyvale, A Municipal
Corporation
For: Public Utilities
Recorded: October 9, 1964, in Book 6695 at
Page 450, Official Records
Affects: The Southeasterly 7 feet of Said Land
8. Covenants, Conditions and Restrictions in the Declaration of Restrictions;
which provide that a violation thereof shall not defeat or render invalid
the lien of any Mortgage or Deed of Trust made in good faith and for value.
Said Covenants, Conditions or Restrictions do not provide for reversion of
title in the event of a breach thereof. Restrictions, if any, based upon
race, color, religion, sex, handicap, familial status, or national origin
are deleted, unless and only to the extent that said covenant (a) is exempt
under Chapter 42, Section 3607, of the United States Code or (b) relates to
handicap but does not discriminate against handicapped persons.
Executed By: Moffett Park Associates, A Partnership
Recorded: December 23, 1971 in Book 9640 at
Page 443 of Official Records
An Assignment and Assumption
Executed by: Moffett Park Associates, A Partnership
To: The Prudential Insurance Company of
America, a New Jersey Corporation
Recorded: February 8, 1977 in Book C583 at Page 685
of Official Records
9. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: Moffett Park Associates, A Partnership
For: Private and Public Utility Purposes
Recorded: November 29, 1974, in Book B190, page 398,
as Instrument No. 4903681, Official
Records
Affects: The Northerly 5 feet of Said Land
10. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: Paul Enterprises, A Partnership, and
Northwest Poultry and Dairy Products
Co., an Oregon Corporation
For: 5 Foot Wide Storm Drain Easement
Recorded: June 17, 1975, in Book B467, page 167,
as Instrument No. 5032895, Official
Records
Affects: As follows:
PARCEL ONE
A 5.00 Foot Wide Storm Drain easement 2.50 feet on each side of the center
line of an existing Storm Drain Pipe, said center line of said pipe being
described as follows:
5
59
Commencing at the Southwest corner of Parcel "A" as said Parcel "A" is
shown on that certain Parcel Map filed for record on August 28, 1974, in
Book 345 of Maps at Page 20, records of Santa Clara County,
Thence North 14 deg 51' 33" East along the Westerly line of said Parcel
"A", a distance of 2.50 feet to the Point of Intersection of said center
line of said existing pipe and the True Point of Beginning of this
description;
Thence South 75 deg 07' 58" East parallel with and istant 2.50 feet
Northerly measured at right angles, from the Southerly line of said Parcel
"A' and along said existing pipe, a distance of 407.55 feet;
Thence North 14 deg 52' 02" East parallel with and distant 42.50 feet
Westerly measured at right angles from the Easterly line of said Parcel "A"
and along said existing pipe, a distance of 215 feet to an existing catch
basin;
Thence South 75 deg 07' 58" East on a line that is perpendicular to the
Easterly line of said Parcel "A" and along said existing pipe, a distance
of 42.50 feet to a point on the Easterly line of said Parcel "A".
The side lines of said 5.00 Easement as described above shall be prolonged
or shortened so as to form a continuous 5.00 foot right of way from said
Westerly line of said Parcel "A" to said Easterly line of said Parcel "A".
PARCEL TWO
A 5.00 foot wide Storm Drain Easement 2.50 feet on each side of the center
line of an existing 12 inch storm drain pipe, said center line of said pipe
being described as follows:
Commencing at the Southwestern corner of Parcel "A" as said Parcel "A" is
shown on that certain Parcel Map filed for record on August 28, 1974 in
Book 345 of Maps, at Page 20, records of Santa Clara County;
Thence North 14 deg 51' 33" East along the Westerly line of said Parcel "A"
a distance of 2.50 feet to the Point of Intersection of the center line of
the existing Storm Drain Pipe described in Parcel 1 above;
Thence South 75 deg 07' 58" East along the center line of said pipe
described in said Parcel 1, a distance of 35.00 feet to the Point of
Intersection of the center line of an existing 12 inch Storm Drain Pipe and
the True Point of Beginning of this description;
Thence North 14 deg 51' 33" East along the center line of said existing 12
inch pipe, a distance of 87.00 feet;
Thence North 75 deg 07' 58" West and continuing along a center line of an
existing 6 inch Storm Drain Pipe, a distance of 35.00 feet to a point on
the Westerly line of said Parcel "A".
The sidelines of said 5.00 Easement as described above shall be prolonged
or shortened so as to form a continuous 5.00 foot Right-of-Way from the
Northerly side of the pipe described in Parcel 1 above to the Westerly line
of said Parcel "A".
11. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: The Prudential Insurance Company of
America, a New Jersey Corporation
For: A 5 foot wide Storm Drain Easement
6
60
Recorded: June 17, 1975 in Book B467, page 173,
as Instrument No. 5032896 Official
Records
Affects: As follows:
PARCEL ONE
A 5.00 foot wide Storm Drain Easement 2.50 feet on each side of the center
line of an existing 12 inch Storm Drain Pipe, said center line of said pipe
being described as follows:
Commencing at the Southeast corner of Parcel "A" as said Parcel "A" is
shown on that certain Parcel Map filed for record on August 28, 1974 in
Book 345 of Maps at Page 20, records of Santa Clara County,
Thence North 14 deg 52' 02" East along the Easterly line of said Parcel
"A", a distance of 2.50 feet to the Point of Intersection of said center
line of said existing storm drain pipe running along the Southerly line of
said Parcel "A";
Thence North 75 deg 07' 58" West along the center line of last said pipe
running along the Southerly line of Parcel "A" a distance of 156.00 feet to
the Point of Intersection of the center line of an existing 12 inch storm
drain pipe and the True Point of Beginning of this description;
Thence North 14 deg 52' 02" East along the center line of said existing 12
inch pipe a distance of 15.00 feet.
The side lines of said 5.00 Easement as described above shall be prolonged
or shortened so as to form a continuous 5.00 foot Right-of-Way from the
said True Point of Beginning of this description to point 2.50 feet North
of an existing storm drain inlet structure.
PARCEL TWO
A 5.00 foot wide storm drain easement, 2.50 feet on each side of the center
line of an existing 12 inch storm drain pipe, said center line of said pipe
being described as follows:
Commencing at the Southeast corner of Parcel "A" a said Parcel "A" is shown
on that certain Parcel Map filed for record on August 28, 1974 in Book 345
of Maps, at Page 20, records of Santa Clara County;
Thence North 14 deg 52' 02" East along the Easterly line of said Parcel "A"
a distance of 2.50 feet to the Point of Intersection of the center line of
the existing storm drain pipe running thence along the Southerly line of
said Parcel "A";
Thence North 75 deg 07' 58" West along the center line of last said pipe
running along the Southerly line of said Parcel "A", a distance of 289.00
feet to the Point of Intersection of the center line of an existing 12 inch
storm drain pipe and the True point of Beginning of this description;
Thence North 14 deg 52' 02" East along the center line of said existing 12
inch pipe, a distance of 15.00 feet.
The side lines of said 5.00 foot easement as described above shall be
prolonged or shortened so as to form a continuous 5.00 foot Right-of-Way
from the said True Point of Beginning of this description to point 2.50
feet North of an existing storm drain inlet structure.
PARCEL THREE
7
61
A 5.00 foot storm drain easement, 2.50 feet on each side of the center line
of an existing storm drain pipe, said center line of said pipe being
described as follows:
Commencing at the Southwest corner of Parcel "A" as said Parcel "A" is
shown on that certain Parcel Map filed for record on August 28, 1974 in
Book 345 of Maps, at Page 20, records of Santa Clara County;
Thence North 14 deg 51' 33" East along the Westerly line of said Parcel "A"
a distance of 2.50 feet to the Point of Intersection of the center line of
the existing pipe;
Thence South 75 deg 07'58" East parallel with and distant 2.50 feet
Northerly, measured at right angles, from the Southerly line of said Parcel
"A" and along said existing pipe, a distance of 161.05 feet and the True
Point of Beginning of this description;
Thence again South 75 deg k07' 58" East continuing along said existing pipe
a distance of 246.50 feet;
Thence North 14 deg 52' 02" East parallel with and distant 42.50 feet
Westerly, measured at right angles, from the Easterly line of said Parcel
"A" and along said existing pipe, a distance of 215 feet to an existing
catch basin;
Thence South 75 deg 07' 58" East on a line that is perpendicular to the
Easterly line of said Parcel "A" and along said existing pipe, a distance
of 42.50 feet to a point on the Easterly line of said Parcel "A".
The side lines of said 5.00 Easement as described above shall be prolonged
or shortened so as to form a continuous 5.00 foot right of way from said
Westerly line of said Parcel "A" to said Easterly line of said Parcel "A".
12. An easement affecting the portion of said land and for the purposes stated
herein, and incidental purposes,
In Favor Of: The Prudential Insurance Company of
America, new Jersey Corporation
For: A pedestrian and motor vehicle
Right-of-Way for the purposes of Ingress
and Egress from motor vehicle parking
spaces
Recorded: June 17, 1975, in Book B467, page 178,
as Instrument No. 5032897 Official
Records
Affects: As follows:
An 11 foot strip of land over a portion of Parcel "A" as said Parcel "A" is
shown on that certain Parcel Map filed for record on August 28, 1974, in
Book 345 of Maps, at Page 20, records of Santa Clara County and being more
particularly described as follows:
Commencing at the Southeast corner of said Parcel "A", said Southeast
corner also being a point on the Westerly line of Crossman Road (90.00 feet
wide); Thence North 75 deg 7' 58" West along the Southerly line of said
Parcel "A", a distance of 40.00 feet to the True Point of Beginning of this
description;
Thence continuing along said Southerly line North 75 deg 07' 58" West, a
distance of 322.50 feet;
Thence North 14 deg 52' 02" East, a distance of 11.00 feet;
8
62
Thence South 75 deg 07' 58" East parallel with and distant Northerly 11.00
feet measured at right angles from said Southerly line of said Parcel "A",
a distance of 322.50 feet; thence South 14 deg 52' 02" West, a distance of
11.00 feet to the True Point of Beginning.
13. Any rights, Interests or Claims which may exist or arise by reason of the
following facts shown by a survey made by Kier & Wright, dated March 18,
1999, as Job No. 96214-2 and inspections of said land:
(A) the fact that the landscaping area, patio and walkways located along
the northwesterly boundary is for the common use of the adjoining property
lying to the northwest of said land.
(B) the fact that the driveway located near the most northerly corner
along the northeasterly boundary is for the common use of the adjoining
property lying to the northeast of said land.
(C) the fact that the fence along the northwesterly boundary and across
the most northerly corner encroaches onto the adjoining properties lying to
the northwest and northeast of said land.
(D) the fact that the fence located near the southwesterly corner on the
southwesterly boundary encroaches onto the adjoining property lying to the
southwest of said land.
(E) the fact that the concrete curbs located along the northeasterly and
southeasterly boundaries encroach onto the 7.00 foot Public Utility
easement (6695-OR-450); onto the 18.00 foot Slope easement (6695-OR-430);
onto the 5.00 foot Storm Drain easement (9790-OR-380, B467-OR-167 and
B467-OR-173); and onto the 5.00 foot Public Utility easement (B190-OR-398).
14. Lease Agreement (Phase II - Land) dated May 3, 1999, by and between BNP
Leasing Corporation, as lessor, and Network Appliance, Inc., as lessee, and
Lease Agreement (Phase II - Improvements) dated May 3, 1999, by and between
BNP Leasing Corporation, as lessor, and Network Appliance, Inc., as lessee.
9
63
EXHIBIT C
BILL OF SALE AND ASSIGNMENT
Reference is made to: (1) that certain Purchase Agreement (Phase II - Land)
between BNP Leasing Corporation ("ASSIGNOR") and Network Appliance, Inc., dated
as of May 3, 1999, (the "PURCHASE AGREEMENT") and (2) that certain Lease
Agreement (Phase II - Land) between Assignor, as landlord, and Network
Appliance, Inc., as tenant, dated as of May 3, 1999 (the "LAND LEASE").
(Capitalized terms used and not otherwise defined in this document are intended
to have the meanings assigned to them in the Common Definitions and Provisions
Agreement (Phase II - Land) incorporated by reference into both the Purchase
Agreement and Land Lease.)
As contemplated by the Purchase Agreement, Assignor hereby sells, transfers
and assigns unto [NAI OR THE APPLICABLE PURCHASER, AS THE CASE MAY BE], a
_____________ ("ASSIGNEE"), all of Assignor's right, title and interest in and
to the following property, if any, to the extent such property is assignable:
(a) the Land Lease;
(b) any pending or future award made because of any condemnation
affecting the Property or because of any conveyance to be made in lieu thereof,
and any unpaid award for damage to the Property and any unpaid proceeds of
insurance or claim or cause of action for damage, loss or injury to the
Property; and
(c) all other property included within the definition of "Property"
as set forth in the Purchase Agreement.
Provided, however, excluded from this conveyance and reserved to Assignor are
any rights or privileges of Assignor under the following ("EXCLUDED RIGHTS"):
(1) the indemnities set forth in the Land Lease, whether such rights are
presently known or unknown, including rights of the Assignor to be indemnified
against environmental claims of third parties as provided in the Land Lease
which may not presently be known, (2) provisions in the Land Lease that
establish the right of Assignor to recover any accrued unpaid rent under the
Land Lease which may be outstanding as of the date hereof, (3) agreements
between Assignor and "BNPLC's Parent" or any "Participant," both as defined in
the Land Lease, or any modification or extension thereof, or (4) any other
instrument being delivered to Assignor contemporaneously herewith pursuant to
the Purchase Agreement. To the extent that this conveyance does include any
rights to receive future payments under the Land Lease, such rights ("INCLUDED
RIGHTS") shall be subordinate to Assignor's Excluded Rights, and Assignee hereby
waives any rights to enforce Included Rights until such time as Assignor has
received all payments to which it remains entitled by reason of Excluded Rights.
If any amount shall be paid to Assignee on account of any Included Rights at any
time before Assignor has received all payments to which it is entitled because
of Excluded Rights, such amount shall be held in trust by Assignee for the
benefit of Assignor, shall be segregated from the other funds of Assignee and
shall forthwith be paid over to Assignor to be held by Assignor as collateral
for, or then or at any time thereafter applied in whole or in part by Assignor
against, the payments due to Assignor because of Excluded Rights, whether
matured or unmatured, in such order as Assignor shall elect.
Assignor does for itself and its successors covenant and agree to warrant
and defend the title to the property assigned herein against the just and lawful
claims and demands of any person claiming under or through a Lien Removable by
BNPLC, but not otherwise.
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.
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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:
------------------------------------
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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
---------------------------------------
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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.]
All that certain real property situate in the City of Sunnyvale, State of
California, described as follows: All that certain Real Property in the City of
Sunnyvale, County of Santa Clara, State of California, described as follows:
PARCEL ONE
All of Parcel "A" as said Parcel is shown upon that certain Parcel Map entitled
"For: Moffett Park Association, being a Redivision of Parcel "B" of Parcel Map
recorded in Book 292 of Maps in Page 41", which Map was filed for record in the
Office of the Recorder of the County of Santa Clara, State of California, on
August 28, 1974 in Book 345 of Map, at Page 20.
PARCEL TWO
An Easement for pedestrian and motor vehicle Right-of-Way for the purpose of
ingress over a portion of land more particularly described as follows:
A 15 foot strip of land over a portion of "Parcel "A", as said Parcel "A" is
shown on that certain Parcel Map filed for record on October 25, 1966 in Book
216 of Maps, at Page 2, records of Santa Clara County, and being more
particularly described as follows:
Commencing at the Northeast corner of said Parcel "A", said Northeast corner
also being a point on the center line of Crossman Road (90.00 feet wide); thence
North 75 deg 07' 58" West along the Northerly line of said parcel "A", a
distance of 85.00 feet to the True Point of Beginning of this description;
thence continuing along said Northerly line North 75 deg 07' 58" West, a
distance of 322.50 feet; thence South 14 deg 52' 02" West, a distance of 15.00
feet; thence South 75 deg 07' 58" East parallel with and distance 15.00 feet
Southerly measured at right angles from the Northerly line of said Parcel "A" a
distance of 322.50 feet; thence North 14 deg 52' 02" East, a distance of 15.00
feet to the True Point of Beginning.
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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 II - Land) incorporated by reference into the Purchase Agreement between
BNPLC and Network Appliance, Inc. dated May 3, 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:
-------------------------
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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]
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CORPORATE RESOLUTIONS OF
BNP LEASING CORPORATION
WHEREAS, pursuant to that certain Purchase Agreement (Phase II - Land)
(herein called the "Purchase Agreement") dated as of May 3, 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.
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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:
-------------------------
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