Purchase Agreement [Phase IV - Improvements] - BNP Leasing Corp. and Network Appliance Inc.
PURCHASE AGREEMENT
(PHASE IV - IMPROVEMENTS)
BETWEEN
BNP LEASING CORPORATION
("BNPLC")
AND
NETWORK APPLIANCE, INC.
("NAI")
OCTOBER 2, 2000
(SUNNYVALE, CALIFORNIA)
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TABLE OF CONTENTS
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1. NAI's Options and Obligations on the Designated Sale Date........................... 1
(A) Right to Purchase; Right and Obligation to Remarket.......................... 1
(B) Determinations Concerning Price.............................................. 3
(C) Designation of the Purchaser................................................. 5
(D) Effect of the Purchase Option and NAI's Initial Remarketing
Rights and Obligations on Subsequent Title Encumbrances...................... 5
(E) Security for the Purchase Option and NAI's Initial Remarketing
Rights and Obligations....................................................... 5
(F) Delivery of Books and Records If BNPLC Retains the Property.................. 6
2. NAI's Rights and Options After the Designated Sale Date............................. 6
(A) NAI's Extended Right to Remarket............................................. 6
(B) Definition of Minimum Extended Remarketing Price............................. 6
(C) BNPLC's Right to Sell........................................................ 7
(D) NAI's Right to Excess Sales Proceeds......................................... 8
(E) Permitted Transfers During NAI's Extended Remarketing Period................. 8
3. Terms of Conveyance Upon Purchase................................................... 8
4. Survival and Termination of the Rights and Obligations of NAI and BNPLC............. 9
(A) Status of this Agreement Generally........................................... 9
(B) Election by NAI to Terminate the Purchase Option and NAI's Initial
Remarketing Rights and Obligations Prior to the Base Rent
Commencement Date (All Buildings)............................................ 10
(C) Election by BNPLC to Terminate the Purchase Option and NAI's
Initial Remarketing Rights and Obligations................................... 10
(D) Automatic Termination of NAI's Rights........................................ 10
(E) Termination of NAI's Extended Remarketing Rights to Permit a Sale
by BNPLC..................................................................... 11
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(F) Payment Only to BNPLC........................................................ 11
(G) Remedies Under the Other Operative Documents................................. 11
(H) Occupancy by NAI Prior to Closing of a Sale.................................. 11
5. Security for NAI's Obligations; Return of Funds..................................... 12
6. Certain Remedies Cumulative......................................................... 12
7. Attorneys' Fees and Legal Expenses.................................................. 12
8. Estoppel Certificate................................................................ 13
9. Successors and Assigns.............................................................. 13
10. Amendment and Restatement........................................................... 13
EXHIBIT AND SCHEDULES
Exhibit A......................................................................Legal Description
Exhibit B...........................................................Grant Deed Form Requirements
Exhibit C............................................................Bill of Sale and Assignment
Exhibit D.........................................................Acknowledgement and Disclaimer
Exhibit E................................................................Secretary's Certificate
Exhibit F.................................................Certificate Concerning Tax Withholding
Exhibit G.................................................Notice by NAI of Election to Terminate
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PURCHASE AGREEMENT
(PHASE IV - IMPROVEMENTS)
This PURCHASE AGREEMENT (PHASE IV - IMPROVEMENTS) (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 October 2, 2000, the Effective Date. ("EFFECTIVE DATE" and other capitalized
terms used and not otherwise defined in this Agreement are intended to have the
meanings assigned to them in the Common Definitions and Provisions Agreement
(Phase IV - Improvements) executed by BNPLC and NAI contemporaneously with this
Agreement. By this reference, the Common Definitions and Provisions Agreement
(Phase IV - Improvements) is incorporated into and made a part of this Agreement
for all purposes.)
RECITALS
NAI and BNPLC previously executed that Purchase Agreement (Phase IV -
Improvements) dated as of December 20, 1000 (the "Prior Purchase Agreement").
NAI and BNPLC have agreed to amend, restate and replace the Prior Purchase
Agreement with this Agreement as provided in Paragraph 10 below.
Pursuant to the Existing Contract, which covered the Land described in
Exhibit A, BNPLC has acquired the Land and any appurtenances thereto and the
existing Improvements thereon from Seller. Pursuant to the Lease Agreement
(Phase IV - Improvements) (the "IMPROVEMENTS LEASE") and the Construction
Management Agreement (the "Construction Management Agreement"), each executed by
BNPLC and NAI contemporaneously with this Agreement, BNPLC is agreeing to
provide funding for the construction and completion of Improvements on the Land,
all of which will be owned by BNPLC, and BNPLC is leasing the Improvements to
NAI. (All of BNPLC's interests, including those created by the documents
delivered at the closing under the Existing Contracts, in the Improvements and
in all other real and personal property from time to time covered by the
Improvements Lease and included within the "Property" as defined therein are
hereinafter collectively referred to as the "PROPERTY". The Property does not
include the fee estate in the Land itself, it being understood that the Other
Purchase Agreement constitutes a separate agreement providing for the possible
sale of the Land and the appurtenances thereto, and only the Land 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
Improvements Lease shall have been terminated, but subject to Paragraph 4 below:
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(1) NAI shall have the right (the "PURCHASE OPTION") to purchase
or cause an Affiliate of NAI to purchase the Property and BNPLC's
interest in Escrowed Proceeds, if any, on the Designated Sale Date for a
cash price equal to the Break Even Price (as defined below).
(2) If neither NAI nor an Affiliate of NAI purchases the Property
and BNPLC's interest in any Escrowed Proceeds on the Designated Sale
Date as provided in the preceding subparagraph 1(A)(1), then NAI shall
have the following rights and obligations (collectively, "NAI'S INITIAL
REMARKETING RIGHTS AND OBLIGATIONS"):
(a) First, NAI shall have the right (but not the obligation)
to cause an Applicable Purchaser who is not an Affiliate of NAI to
purchase the Property and BNPLC's interest in any Escrowed Proceeds
on the Designated Sale Date for a cash purchase price (the "THIRD
PARTY PRICE") determined as provided below. If, however, the Break
Even Price exceeds the sum of any Third Party Price tendered or to
be tendered to BNPLC by an Applicable Purchaser and any Supplemental
Payment paid by NAI as described below, then BNPLC may affirmatively
elect to decline such tender from the Applicable Purchaser and to
keep the Property and any Escrowed 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:
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(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 IV - Improvements).
(y) No Event of Default, other than an Issue
97-1 Non-performance-related Subjective Event of Default, shall
occur on or be continuing on the Designated Sale Date.
2) If either of the conditions listed in
subparagraph 1) preceding are not satisfied, the "MAXIMUM
REMARKETING OBLIGATION" will equal the Break Even Price.
If any Supplemental Payment or other amount payable to BNPLC pursuant to this
subparagraph 1(A) is not actually paid to BNPLC on the Designated Sale Date, NAI
shall pay interest on the past due amount computed at the Default Rate from the
Designated Sale Date.
(B) Determinations Concerning Price.
(1) Determination of the Break Even Price. As used herein, "BREAK
EVEN PRICE" means an amount equal, on the Designated Sale Date, to
Stipulated Loss Value, plus all out-of-pocket costs and expenses
(including appraisal costs, withholding taxes (if any) not constituting
Excluded Taxes, and Attorneys' Fees) incurred by BNPLC in connection
with any sale of BNPLC's interests in the Property under this Agreement
or in connection with collecting payments due hereunder, and plus an
amount equal to the Balance of Unpaid Construction-Period Indemnity
Payments, but less the aggregate amounts (if any) of Direct Payments to
Participants and Deposit Taker Losses (other than Excluded Deposit Taker
Losses). As used herein, the "Balance of Unpaid Construction-Period
Indemnity Payments" means an amount equal to the sum of
Construction-Period Indemnity Payments, if any, that NAI declined to pay
pursuant to subparagraph 5(d)(ii) of the Improvements Lease, plus
interest accruing at the Default Rate, compounded annually, on each such
payment from the date such payment would have become due but for NAI's
right to decline to pay it as described in subparagraph 5(d)(ii) of the
Improvements Lease. If, however, Losses for which NAI has so declined to
pay any Construction-Period Indemnity Payment consist of claims against
BNPLC or another Interested Party that have not been liquidated prior to
the Designated Sale Date (and, thus, such Losses have yet to be fixed in
amount as of the Designated Sale Date), then NAI may elect to exclude
any Construction-Period Indemnity Payment attributable to such Losses by
providing to BNPLC, for the benefit of BNPLC and other Interested
Parties, a written agreement to indemnify and defend BNPLC and other
Interested Parties against such Losses. To be effective hereunder for
purposes of reducing the Balance of Unpaid Construction-Period Indemnity
Payments (and, thus, the Break Even Price), any such written indemnity
must be fully executed and delivered by NAI on or prior to the
Designated Sale Date, must include provisions comparable to
subparagraphs 5(c)(ii), (iii), (iv) and (v) of the Improvements Lease
and otherwise must be in form and substance satisfactory to BNPLC.
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(2) Determination of Third Party Price. The Third Party Price
required of any Applicable Purchaser purchasing from BNPLC under
subparagraph 1(A)(2)(a) will be determined as follows:
(a) NAI may give a notice (a "REMARKETING NOTICE") to BNPLC
and to each of the Participants no earlier than one hundred twenty
days before the Designated Sale Date and no later than ninety days
before the Designated Sale Date, specifying an amount as the Third
Party Price that NAI believes in good faith to constitute reasonably
equivalent value for the Property and any Escrowed Proceeds. Once
given, a Remarketing Notice shall not be rescinded or modified
without BNPLC's written consent.
(b) If BNPLC believes in good faith that the Third Party
Price specified by NAI in a Remarketing Notice does not constitute
reasonably equivalent value for the Property and any Escrowed
Proceeds, BNPLC may at any time before sixty days prior to the
Designated Sale Date respond to the Remarketing Notice with a notice
back to NAI, objecting to the Third Party Price so specified by NAI.
If BNPLC receives a Remarketing Notice, yet does not respond with an
objection as provided in the preceding sentence, the Third Party
Price suggested by NAI in the Remarketing Notice will be the Third
Party Price for purposes of this Agreement. If, however, BNPLC does
respond with an objection as provided in this subparagraph, and if
NAI and BNPLC do not otherwise agree in writing upon a Third Party
Price, then the Third Party Price will be the lesser of (I) fair
market value of the Property, plus the amount of any Escrowed
Proceeds, as determined by a professional independent appraiser
satisfactory to BNPLC, or (II) the Break Even Price.
(c) If for any reason, including an acceleration of the
Designated Sale Date as provided in the definition thereof in the
Common Definitions and Provisions Agreement (Phase IV -
Improvements), 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 2(D), then NAI
shall pay to BNPLC upon demand an amount equal to the reduction of the
Supplemental Payment or to the increase of the excess sale proceeds paid
to NAI, as applicable, and this Agreement shall continue to be effective
or shall be reinstated as necessary to permit BNPLC to enforce its right
to collect such amount from NAI.
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(C) Designation of the Purchaser. To give BNPLC the opportunity
before the Designated Sale Date to prepare the deed and other documents that
BNPLC must tender pursuant to Paragraph 3 (collectively, the "SALE CLOSING
DOCUMENTS"), NAI must, by a notice to BNPLC given at least seven days prior to
the Designated Sale Date, specify irrevocably, unequivocally and with
particularity the party who will purchase the Property in order to satisfy the
obligations of NAI set forth in subparagraph 1(A). If for any reason NAI fails
to so specify a party who will in accordance with the terms and conditions set
forth herein purchase the Property (be it NAI itself, an Affiliate of NAI or
another Applicable Purchaser), BNPLC shall be entitled to postpone the tender of
the Sale Closing Documents until a date after the Designated Sale Date and not
more than twenty days after NAI finally does so specify a party, but such
postponement will not relieve or postpone the obligation of NAI to make a
Supplemental Payment on the Designated Sale Date as provided in Paragraph
1.(A)(2)(c).
(D) Effect of the Purchase Option and NAI's Initial Remarketing
Rights and Obligations on Subsequent Title Encumbrances. Any conveyance of the
Property to NAI or any Applicable Purchaser pursuant to this Paragraph 1.(A)
shall cut off and terminate any interest in the Improvements or other Property
claimed by, through or under BNPLC, including any interest claimed by the
Participants and including any Liens Removable by BNPLC (such as, but not
limited to, any judgment liens established against the Property because of a
judgment rendered against BNPLC and any leasehold or other interests conveyed by
BNPLC in the ordinary course of BNPLC's business), but not including personal
obligations of NAI to BNPLC under the Improvements Lease or other Operative
Documents (including obligations arising under the indemnities therein). Anyone
accepting or taking any interest in the Property by or through BNPLC after the
date of this Agreement shall acquire such interest subject to the Purchase
Option and NAI's Initial Remarketing Rights and Obligations. Further, NAI and
any Applicable Purchaser shall be entitled to pay any payment required by this
Agreement for the purchase of the Property directly to BNPLC notwithstanding any
prior conveyance or assignment by BNPLC, voluntary or otherwise, of any right or
interest in this Agreement or the Property, and neither NAI nor any Applicable
Purchaser shall be responsible for the proper distribution or application of any
such payments by BNPLC; and any such payment to BNPLC shall discharge the
obligation of NAI to cause such payment to all Persons claiming an interest in
such payment. Contemporaneously with the execution of this Agreement, the
parties shall record a memorandum of this Agreement for purposes of effecting
constructive notice to all Persons of NAI's rights under this Agreement,
including its rights under this subparagraph.
(E) Security for the Purchase Option and NAI's Initial Remarketing
Rights and Obligations. To secure BNPLC's obligation to sell the Property
pursuant to Paragraph 1.(A) and to pay any damages to NAI caused by a breach of
such obligations, including any such breach caused by a rejection or termination
of this Agreement in any bankruptcy or insolvency proceeding instituted by or
against BNPLC, as debtor, BNPLC does hereby grant to NAI a lien and security
interest against all rights, title and interests of BNPLC from time to time in
and to the Improvements and other Property. NAI may enforce such lien and
security interest judicially after any such breach by BNPLC, but not otherwise.
Contemporaneously with the execution of this Agreement, NAI and BNPLC will
execute a memorandum of this Agreement which is in recordable form and which
specifically references the lien granted in this subparagraph, and NAI shall be
entitled to record such memorandum at any time prior to the Designated Sale
Date.
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(F) Delivery of Books and Records If BNPLC Retains the Property.
Unless NAI or its Affiliate or another Applicable Purchaser purchases the
Property pursuant to Paragraph 1.(A), promptly after the Designated Sale Date
NAI shall deliver to BNPLC copies of all plans and specifications for the
Property prepared in connection with the construction contemplated by the
Construction Management Agreement and the Improvements Lease, together with all
other books and records of NAI which will be necessary or useful to any future
owner's or occupant's use of the Property in the manner permitted by the
Improvements Lease.
2. NAI'S RIGHTS AND OPTIONS AFTER THE DESIGNATED SALE DATE.
(A) NAI's Extended Right to Remarket. During the two years following
the Designated Sale Date ("NAI'S EXTENDED REMARKETING PERIOD"), NAI shall have
the right ("NAI'S EXTENDED REMARKETING RIGHT") to cause an Applicable Purchaser
who is not an Affiliate of NAI to purchase the Property for a cash purchase
price not below the lesser of (I) the Minimum Extended Remarketing Price (as
defined below), or (II) if applicable, the Third Party Target Price (as defined
below) specified in any Third Party Sale Notice (as defined below) given by
BNPLC pursuant to subparagraph 2(C)(2) within the ninety days prior to the date
(the "FINAL SALE DATE") upon which BNPLC receives such purchase price from the
Applicable Purchaser. NAI's Extended Remarketing Right shall, however, be
subject to all of the following conditions:
(1) The Property and BNPLC's interest in Escrowed Proceeds, if
any, shall not have been sold on the Designated Sale Date as provided in
Paragraph 1.
(2) No Voluntary Retention of the Property shall have occurred as
described in subparagraph 1(A)(2)(a).
(3) NAI's Extended Remarketing Right shall not have been
terminated pursuant to subparagraph 4(D) below because of NAI's failure
to make any Supplemental Payment required on the Designated Sale Date.
(4) NAI's Extended Remarketing Right shall not have been
terminated by BNPLC pursuant to subparagraph 4(E) below to facilitate
BNPLC's sale of the Property to a third party in accordance with
subparagraph 2(C).
(5) At least thirty days prior to the Final Sale Date, NAI shall
have notified BNPLC of (x) the date proposed by NAI as the Final Sale
Date (which must be a Business Day), (y) the full legal name of the
Applicable Purchaser and such other information as will be required to
prepare the Sale Closing Documents, and (z) the amount of the purchase
price that the Applicable Purchaser will pay (consistent with the
minimum required pursuant to the other provisions of this subparagraph
2(A)) for the Property.
(B) Definition of Minimum Extended Remarketing Price. As used
herein, "MINIMUM EXTENDED REMARKETING PRICE" means an amount equal to the sum of
the following:
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(1) the amount by which the Break Even Price computed on the
Designated Sale Date exceeds any Supplemental Payment actually paid to
BNPLC on the Designated Sale Date, together with interest on such excess
computed at the Default Rate from the period commencing on the
Designated Sale Date and ending on the Final Sale Date, plus
(2) all out-of-pocket costs and expenses (including withholding
taxes [if any], other than Excluded Taxes, and Attorneys' Fees) incurred
by BNPLC in connection with the sale to the Applicable Purchaser, to the
extent not already included in the computation of Break Even Price, and
plus
(3) the sum of all Impositions, insurance premiums and other
Losses of every kind suffered or incurred by BNPLC or any other
Interested Party with respect to the ownership, operation or maintenance
of the Property on or after the Designated Sale Date (except to the
extent already reimbursed by any lessee of the Property after the
Designated Sale Date), together with interest on such Impositions,
insurance premiums and other Losses computed at the Default Rate from
the date paid or incurred to the Final Sale Date.
If, however, Losses described in the preceding clause (3) consist of claims
against BNPLC or another Interested Party that have not been liquidated prior to
the Final Sale Date (and, thus, such Losses have yet to be fixed in amount as of
the Final Sale Date), then NAI may elect to exclude any such Losses from the
computation of the Minimum Extended Remarketing Price by providing to BNPLC, for
the benefit of BNPLC and other Interested Parties, a written agreement to
indemnify and defend BNPLC and other Interested Parties against such Losses. To
be effective hereunder for purposes of reducing the Minimum Extended Remarketing
Price (and, thus, the Break Even Price), any such written indemnity must be
fully executed and delivered by NAI on or prior to the Final Sale Date, must
include provisions comparable to subparagraphs 5(c)(ii), (iii), (iv) and (v) of
the Improvements Lease and otherwise must be in form and substance satisfactory
to BNPLC.
(C) BNPLC's Right to Sell. After the Designated Sale Date, if the
Property has not already been sold by BNPLC pursuant to Paragraph 1 or this
Paragraph 2, BNPLC shall have the right to sell the Property or offer the
Property for sale to any third party on any terms believed to be appropriate by
BNPLC in its sole good faith business judgment; provided, however, that so long
as the conditions to NAI's Extended Remarketing Rights specified in subparagraph
2(A) continue to be satisfied:
(1) BNPLC shall not sell the Property to an Affiliate of BNPLC on
terms less favorable than those which BNPLC would require from a
prospective purchaser not an Affiliate of BNPLC;
(2) If BNPLC receives or desires to make a written proposal
(whether in the form of a "letter of intent" or other nonbinding
expression of interest or in the form of a more definitive purchase and
sale agreement) for a sale of the Property to a prospective purchaser (a
"THIRD PARTY SALE PROPOSAL"), and if on the basis of such Third Party
Sale Proposal BNPLC expects to enter into or to pursue negotiations for
a definitive
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purchase and sale agreement with the prospective purchaser, then prior
to executing any such definitive agreement, BNPLC shall submit the Third
Party Sale Proposal to NAI with a notice (the "THIRD PARTY SALE NOTICE")
explaining that (A) BNPLC is then prepared to accept a price not below
an amount specified in such Third Party Sale Notice (the "THIRD PARTY
TARGET PRICE") if BNPLC and the prospective purchaser reach agreement on
other terms and conditions to be incorporated into a definitive purchase
and sale agreement, and (B) NAI's Extended Remarketing Right may be
terminated pursuant to subparagraph 4(E) of this Agreement unless NAI
causes an Applicable Purchaser to consummate a purchase of the Property
pursuant to this Paragraph 2 within ninety days after the date of such
Third Party Sale Notice.
(D) NAI's Right to Excess Sales Proceeds. If the cash price actually
paid by any third party purchasing the Property from BNPLC during NAI's Extended
Remarketing Period, including any price paid by an Applicable Purchaser
purchasing from BNPLC pursuant to this Paragraph 2, exceeds the Minimum Extended
Remarketing Price, then NAI shall be entitled to the excess; provided, that
BNPLC may offset and retain from the excess any and all sums that are then due
and unpaid from NAI to BNPLC under any of the Operative Documents.
(E) Permitted Transfers During NAI's Extended Remarketing Period.
Any "Permitted Transfer" described in clause (6) of the definition thereof in
the Common Definitions and Provisions Agreement (Phase IV - Improvements) to an
Affiliate of BNPLC or that covers BNPLC's entire interest in the Improvements
will be subject to NAI's Extended Remarketing Right if, at the time of the
Permitted Transfer, NAI's Extended Remarketing Right has not expired or been
terminated as provided herein. Any other Permitted Transfer described in clause
(6) of the 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
Improvements and any Personal Property.
3. Terms of Conveyance Upon Purchase. As necessary to consummate any
sale of the Property to NAI or an Applicable Purchaser pursuant to this
Agreement, BNPLC must, subject to any postponement permitted by subparagraph
1(C), promptly after the tender of the purchase price and any other payments to
BNPLC required pursuant to Paragraph 1 or Paragraph 2, as applicable, convey all
of BNPLC's right, title and interest in the Improvements and other Property to
NAI or the Applicable Purchaser, as the case may be, by BNPLC's execution,
acknowledgment (where appropriate) and delivery of the Sale Closing Documents.
Such conveyance by BNPLC will be subject only to the Permitted Encumbrances and
any other encumbrances that do not constitute Liens Removable by BNPLC. However,
such conveyance shall not include the rights of BNPLC or other Interested
Parties under the indemnities provided in the Operative Documents, including
rights to any payments then due from NAI under the indemnities or that may
become due thereafter because of any expense or liability incurred by BNPLC or
another Interested Party resulting in whole or in part from events or
circumstances occurring or alleged to have occurred before such conveyance. All
costs, both foreseen and unforeseen, of any purchase by NAI or an Applicable
Purchaser hereunder shall be the
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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-3, as required by
Exhibit B, (2) a Bill of Sale and Assignment in the form attached as Exhibit C,
(3) an Acknowledgment of Disclaimer of Representations and Warranties, in the
form attached as Exhibit D, which NAI or the Applicable Purchaser must execute
and return to BNPLC, (4) a Secretary's Certificate in the form attached as
Exhibit E, and (5) a certificate concerning tax withholding in the form attached
as Exhibit F. If for any reason BNPLC fails to tender the Sale Closing Documents
as required by this Paragraph 3, BNPLC may cure such refusal at any time before
thirty days after receipt of a demand for such cure from NAI.
4. SURVIVAL AND TERMINATION OF THE RIGHTS AND OBLIGATIONS OF NAI AND
BNPLC.
(A) Status of this Agreement Generally. Except as expressly provided
herein, this Agreement shall not terminate; nor shall NAI have any right to
terminate this Agreement; nor shall NAI be entitled to any reduction of the
Break Even Price, any Deficiency, the Maximum Remarketing Obligation, any
Supplemental Payment or the Minimum Extended Remarketing Price hereunder; nor
shall the obligations of NAI to BNPLC under Paragraph 1 be affected, by reason
of (i) any damage to or the destruction of all or any part of the Property from
whatever cause (though it is understood that NAI will receive any remaining
Escrowed Proceeds yet to be applied as provided in the Improvements Lease that
may result from such damage if NAI purchases the Property and the Escrowed
Proceeds as herein provided), (ii) the taking of or damage to the Property or
any portion thereof by eminent domain or otherwise for any reason (though it is
understood that NAI will receive any remaining Escrowed Proceeds yet to be
applied as provided in the Improvements 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 Improvements 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.
9
<PAGE> 13
(B) Election by NAI to Terminate the Purchase Option and NAI's
Initial Remarketing Rights and Obligations Prior to the Base Rent Commencement
Date (All Buildings). At any time prior to the Base Rent Commencement Date (All
Buildings), NAI may elect to terminate both the Purchase Option and NAI's
Initial Remarketing Rights and Obligations, subject to the following conditions:
(1) To be effective, any such election to terminate must be made
prior to the Base Rent Commencement Date (All Buildings) and must be
made after (x) NAI shall have given Notice of NAI's Election to
Terminate pursuant to Paragraph 5(D) of the Construction Management
Agreement, (y) BNPLC shall have given any FOCB Notice as provided in
Paragraph 5(E) of the Construction Management Agreement, or (z) BNPLC
shall have given notice of its election to accelerate the Designated
Sale Date when an Event of Default has occurred and is continuing as
provided in clause (5) of the definition "Designated Sale Date" in the
Common Definitions and Provisions Agreement (Phase IV - Improvements).
(2) To be effective, any such election to terminate must be made
by giving BNPLC and the Participants a notice thereof in the form
attached as Exhibit F prior to the Base Rent Commencement Date (All
Buildings).
(3) No termination pursuant to this subparagraph 4(B) shall be
effective, notwithstanding any notice NAI may have given as described in
the preceding clause (2), unless contemporaneously with the giving of
the notice (and in any event prior to the Base Rent Commencement Date
(All Buildings)) NAI shall deliver to BNPLC an Issue 97-10 Prepayment.
(4) If for any reason whatsoever, including any bona fide dispute
over the amount of any required Issue 97-10 Prepayment, BNPLC does not
receive both the notice described in the preceding clause (2) and a full
Issue 97-10 Prepayment as described in the preceding clause (3) prior to
the Base Rent Commencement Date (All Buildings), then without any notice
or other action by the parties to this Agreement NAI shall cease to have
any option to terminate pursuant to this subparagraph 4(B).
(C) Election by BNPLC to Terminate the Purchase Option and NAI's
Initial Remarketing Rights and Obligations. By notice to NAI BNPLC shall be
entitled to terminate both the Purchase Option and NAI's Initial Remarketing
Rights and Obligations, as BNPLC deems appropriate in its sole and absolute
discretion, at any time after receiving a notice given by NAI to make or attempt
to make any Issue 97-10 Election. Upon any such termination by BNPLC, NAI shall
become immediately obligated to pay BNPLC an Issue 97-10 Prepayment.
(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
10
<PAGE> 14
subparagraph 1(A)(2)(a). If, however, NAI's Initial Remarketing Rights and
Obligations are effectively terminated pursuant to subparagraph 4(B) or 4(C)
prior to the Designated Sale Date, thereby excusing NAI from the obligation to
make any Supplemental Payment pursuant to subparagraph 1(A)(2)(c) and precluding
any Voluntary Retention of the Property pursuant to subparagraph 1(A)(2)(a),
then NAI's Extended Remarketing Rights will not automatically terminate pursuant
to this subparagraph. Further, notwithstanding anything in this subparagraph to
the contrary, even after a failure to pay any required Supplemental Payment on
the Designated Sale Date, NAI may nonetheless tender to BNPLC the full Break
Even Price and all amounts then due under the Operative Documents, together with
interest on the total Break Even Price computed at the Default Rate from the
Designated Sale Date to the date of tender, on any Business Day within thirty
days after the Designated Sale Date, and if presented with such a tender within
thirty days after the Designated Sale Date, BNPLC must accept it and promptly
thereafter deliver any Escrowed Proceeds and the Sale Closing Documents listed
in Paragraph 3 to NAI.
(E) Termination of NAI's Extended Remarketing Rights to Permit a
Sale by BNPLC. At any time more than ninety days after BNPLC has delivered a
Third Party Sale Notice to NAI as described in subparagraph 2(C)(2), BNPLC may
terminate NAI's Extended Remarketing Rights contemporaneously with the
consummation of a sale of the Property by BNPLC to any third party (be it the
prospective purchaser named in the Third Party Sale Notice or another third
party) at a price equal to or in excess of the Third Party Target Price
specified in the Third Party Sale Notice, so as to permit the sale of the
Property unencumbered by NAI's Extended Remarketing Rights.
(F) Payment Only to BNPLC. All amounts payable under this Agreement
by NAI and, if applicable, by an Applicable Purchaser must be paid directly to
BNPLC, and no payment to any other party shall be effective for the purposes of
this Agreement. In addition to the payments required under subparagraph 1(A), on
the Designated Sale Date NAI must pay all amounts then due to BNPLC under the
Improvements Lease or other Operative Documents.
(G) Remedies Under the Other Operative Documents. No repossession of
or re-entering upon the Property or exercise of any other remedies available to
BNPLC under the Improvements 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 Improvements Lease, the Construction Management Agreement
and the Closing Certificate, and NAI's obligations hereunder shall not be
affected or impaired by any event or circumstance that would excuse NAI from
performance of its obligations under such other Operative Documents.
(H) Occupancy by NAI Prior to Closing of a Sale. Prior to the
closing of any sale of the Property to NAI or an Applicable Purchaser hereunder,
NAI's occupancy of the Improvements and its use of the Property shall continue
to be subject to the terms and conditions of the Improvements Lease, including
the terms setting forth NAI's obligation to pay rent, prior to any termination
or expiration of the Improvements Lease pursuant to its express terms and
conditions.
11
<PAGE> 15
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
12
<PAGE> 16
obligation for such Attorneys' Fees is intended to be severable from other
provisions of this Agreement and not to be merged into any such judgment.
8. Estoppel Certificate. Upon request by BNPLC, NAI shall execute,
acknowledge and deliver a written statement certifying that this Agreement is
unmodified and in full effect (or, if there have been modifications, that this
Agreement is in full effect as modified, and setting forth such modification)
and either stating that no default exists hereunder or specifying each such
default of which NAI has knowledge. Any such statement may be relied upon by any
Participant or prospective purchaser or assignee of BNPLC with respect to the
Property.
9. Successors and Assigns. The terms, provisions, covenants and
conditions hereof shall be binding upon NAI and BNPLC and their respective
permitted successors and assigns and shall inure to the benefit of NAI and BNPLC
and all permitted transferees, mortgagees, successors and assignees of NAI and
BNPLC with respect to the Property; provided, that (A) the rights of BNPLC
hereunder shall not pass to NAI or any Applicable Purchaser or any subsequent
owner claiming through NAI or an Applicable Purchaser, (B) BNPLC shall not
assign 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.
10. Amendment and Restatement. This Agreement amends, restates and
replaces the Prior Purchase Agreement referenced in the recitals at the
beginning of this Agreement.
[Signature pages follow.]
13
<PAGE> 17
IN WITNESS WHEREOF, NAI and BNPLC have caused this Purchase Agreement
(Phase IV - Improvements) to be executed as of October 2, 2000.
"NAI"
NETWORK APPLIANCE, INC.
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
<PAGE> 18
[Continuation of signature pages to Purchase Agreement (Phase IV - Improvements)
dated to be effective October 2, 2000]
"BNPLC"
BNP LEASING CORPORATION
By:
---------------------------------------
Lloyd G. Cox, Senior Vice President
<PAGE> 19
EXHIBIT A
LEGAL DESCRIPTION
The real property located in the City of Sunnyvale, County of Santa Clara, State
of California, described as follows:
TRACT 1:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map lying
within the City of Sunnyvale, being a resubdivision of a portion of Parcel B, as
shown upon that certain Parcel Map recorded in Book 345 of Maps, at page 20,
Santa Clara County Records", which Map was filed for record in the Office of the
Recorder of the County of Santa Clara, State of California, on November 17,
1976, in Book 383 of Maps, at page 35.
TRACT 2:
Together with an easement for vehicles parking over the following described
property:
A 7-foot strip of land for parking easement purposes over a portion of Parcel A,
as said Parcel A is shown on that certain Parcel Map filed for record on
November 10, 1974 in Book 292 of Maps, at page 41, records of said County, and
being more particularly described as follows:
Commencing at the Northeast corner of said Parcel A; thence North 75 (degrees)
8'27" West 500.00 feet along the Northeasterly line of said Parcel A; thence
South 14 (degrees) 51'33" West 7.00 feet; thence parallel to Northeasterly line
of said Parcel A, South 75 (degrees) 08'27" East 500.00 feet to the Southeast
line of said Parcel A, North 14 (degrees) 51'33" East 7.00 feet to the point of
beginning.
APN: 110-32-002
ARB: 110-3-65.02
TRACT 3:
Parcel 1, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of Santa Clara, State of California on July
7, 1994, in Book 657 of Parcel Maps, Page 9.
APN: 110-32-6
ARB: 110-3-x65
TRACT 4:
Parcel 2, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of Santa Clara, State of California on July
7, 1994, in Book 657 of Parcel Maps, Page 9.
APN: 110-32-7
ARB: 110-3-x65
A-1
<PAGE> 20
TRACT 5:
Parcel 2, as shown on that certain parcel Map which filed for record in the
office of the recorder of the County of Santa Clara, State of California on
October 7, 1998, in Book 708 of Parcel Maps, Pages 51 and 52.
APN: 110-32-12
ARB: 110-03-65.11
A-2
<PAGE> 21
EXHIBIT B
REQUIREMENTS RE: FORM OF GRANT DEED
The form of deed to be used to convey BNPLC's interest in the Improvements to
NAI or an Applicable Purchaser will depend upon whether BNPLC's interest in the
Land 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
Land) 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, BNPLC's interest in the Land 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 Improvements under
this Agreement, then BNPLC's interest in the Improvements will be conveyed by a
deed in the from attached as Exhibit B-2.
Finally, BNPLC's interest in the Improvements will be conveyed by a deed in the
from attached as Exhibit B-3 if BNPLC's interest in the Land has been sold
pursuant to the Other Purchase Agreement before a sale of BNPLC's interest in
the Improvements under this Agreement, or 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.
B-1
<PAGE> 22
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.
BNP LEASING CORPORATION
Date: As of
------------
By:
--------------------------------
Exhibit B-1 Page 1
<PAGE> 23
Its:
Attest:
--------------------------------
Its:
[NAI or Applicable Purchaser]
Date: As of By:
--------------- --------------------------------
Its:
Attest:
--------------------------------
Its:
STATE OF )
------------
) SS
COUNTY OF )
----------
On ___________________ before me,__________ personally appeared_______
and_________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the persons whose names are subscribed to the
within instrument and acknowledged to me that they executed the same in their
authorized capacities, and that by their signatures on the instrument the
person, or the entity upon behalf of which the persons acted, executed the
instrument.
WITNESS my hand and official seal.
Signature
----------------------------------
Exhibit B-1 Page 2
<PAGE> 24
)
STATE OF
------------
) SS
COUNTY OF )
----------
On ___________________ before me, _____________________ , personally
appeared ________________ and _______________, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the persons whose names are
subscribed to the within instrument and acknowledged to me that they executed
the same in their authorized capacities, and that by their signatures on the
instrument the person, or the entity upon behalf of which the persons acted,
executed the instrument.
WITNESS my hand and official seal.
Signature
----------------------------------
Exhibit B-1 Page 3
<PAGE> 25
ANNEX A
LEGAL DESCRIPTION
[DRAFTING NOTE: TO THE EXTENT THAT THE "LAND" COVERED BY THE LAND LEASE CHANGES
FROM TIME TO TIME BECAUSE OF ADJUSTMENTS FOR WHICH NAI REQUESTS BNPLC'S CONSENT
OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY SUCH
CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING NOTE"
WILL BE DELETED BEFORE THE DEED TO WHICH THIS DESCRIPTION IS ATTACHED IS
ACTUALLY EXECUTED AND DELIVERED.]
The real property located in the City of Sunnyvale, County of Santa Clara, State
of California, described as follows:
TRACT 1:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map lying
within the City of Sunnyvale, being a resubdivision of a portion of Parcel B, as
shown upon that certain Parcel Map recorded in Book 345 of Maps, at page 20,
Santa Clara County Records", which Map was filed for record in the Office of the
Recorder of the County of Santa Clara, State of California, on November 17,
1976, in Book 383 of Maps, at page 35.
TRACT 2:
Together with an easement for vehicles parking over the following described
property:
A 7-foot strip of land for parking easement purposes over a portion of Parcel A,
as said Parcel A is shown on that certain Parcel Map filed for record on
November 10, 1974 in Book 292 of Maps, at page 41, records of said County, and
being more particularly described as follows:
Commencing at the Northeast corner of said Parcel A; thence North 75
(degrees)8'27" West 500.00 feet along the Northeasterly line of said Parcel A;
thence South 14(degrees)51'33" West 7.00 feet; thence parallel to Northeasterly
line of said Parcel A, South 75(degrees)08'27" East 500.00 feet to the Southeast
line of said Parcel A, North 14(degrees)51'33" East 7.00 feet to the point of
beginning.
APN: 110-32-002
ARB: 110-3-65.02
TRACT 3:
Parcel 1, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of Santa Clara, State of California on July
7, 1994, in Book 657 of Parcel Maps, Page 9.
APN: 110-32-6
ARB: 110-3-x65
Exhibit B-1 Page 4
<PAGE> 26
TRACT 4:
Parcel 2, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of Santa Clara, State of California on July
7, 1994, in Book 657 of Parcel Maps, Page 9.
APN: 110-32-7
ARB: 110-3-x65
TRACT 5:
Parcel 2, as shown on that certain parcel Map which filed for record in the
office of the recorder of the County of Santa Clara, State of California on
October 7, 1998, in Book 708 of Parcel Maps, Pages 51 and 52.
APN: 110-32-12
ARB: 110-03-65.11
Exhibit B-1 Page 5
<PAGE> 27
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 IV - Improvements) incorporated by reference into the Lease
Agreement (Phase IV Improvements) referenced in the last item of the list
below), including the following matters to the extent the same are still valid
and in force:
TRACT 1 and 2:
1. TAXES for the fiscal year 2000-2001, a lien not yet due or payable.
2. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
3. LIMITATIONS, covenants, conditions, restrictions, reservations,
exceptions or terms, but deleting any covenant, condition or restriction
indicating a preference, limitation or discrimination based on race,
color, religion, sex, handicap, familial status, or national origin to
the extent such covenants, conditions or restrictions violate 42 USC
3604(c), contained in the document recorded December 23, 1971 in Book
9640, page 443, Official Records.
Assignments and Assumption, executed by Moffett Park Associates, a
partnership to Prudential Insurance Company of America, recorded
February 8, 1977 in Book C583, page 685, Official Records.
4. AGREEMENT on the terms and conditions contained therein,
For : Waiver of Construction Credits
Between : Moffett Park Associates
And : None Shown
Recorded : September 28, 1976 in Book C307, page 346, Official
Records.
Exhibit B-1 Page 6
<PAGE> 28
5. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Construction, reconstruction, operation, repair,
maintenance, replacement, relocation and enlargement
of Public Utilities
Granted to : The City of Sunnyvale, a municipal corporation
Recorded : November 16, 1976 in Book C414, page 105, Official
Records
Affects : as follows:
Being a portion of Parcel B as shown on that certain Parcel Map recorded
August 28, 1974 in Book of Maps, at page 20, Santa Clara County Records;
a strip of land 10 feet in width, measured at right angles lying
Northerly and Easterly of and contiguous to the following described
line; beginning at the intersection of the Westerly line of Crossman
Road, 90 feet in width, with the Northerly line of Parcel A as shown on
said Map; thence North 75(degrees)7'58" West along said Northerly line
of Parcel A 450.13 feet; thence leaving said Northerly line, North 30
(degrees)7'48" West 210.69 feet; thence North 75(degrees)8'27" West
391.04 feet to a point on the Easterly line of the proposed Geneva
Drive, 60 feet wide, said point being the terminus of said easement.
6. ANY RIGHTS, interests, or claims adverse to those of the vestee herein
which may exist or arise by reason of the following facts shown on a
survey plat entitled ALTA/ACSM Land Title Survey for: Network Appliance,
1345 Crossman Avenue, dated September 20, 2000, prepared by Kier &
Wright, Job No. 97208-16.
TRACT 3:
1. TAXES for the fiscal year 2000-2001, a lien not yet due or payable.
2. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
3. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Slope Easement
In favor of : The City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 430, Official
Records
Affects : Easterly 18 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance,
1345 Crossman Avenue, dated September 20, 2000,
prepared by Kier & Wright, Job No. 97208-16.
4. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 450, Official
Records
Affects : Easterly 7 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance,
1345 Crossman Avenue, dated September 20, 2000,
prepared by Kier & Wright, Job No. 97208-16.
Exhibit B-1 Page 7
<PAGE> 29
5. Covenants, Conditions and Restrictions in the Declaration of Protective
Covenants - Moffett Industrial Park No. 2) recorded December 23, 1971 in
Book 9640, page 443, Official Records; 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 and 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)
related to handicap but does not discriminate against handicapped
persons.
ASSIGNMENT AND ASSUMPTION of the rights, powers, duties, obligations,
and reservations of Moffett Park Associates, in favor of The Prudential
Insurance Company of America, recorded February 8, 1977 in Book C583,
page 685, Official Records.
6. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities
Granted to : City of Sunnyvale
Recorded : November 16, 1976 in Book C414, page 105, Official
Records
Affects : Southerly 10 feet, as shown on a survey plat
entitled ALTA/ACSM Land Title Survey for: Network
Appliance, 1345 Crossman Avenue, dated September 20,
2000, prepared by Kier & Wright, Job No. 97208-16.
7. LIMITATIONS, covenants, restrictions, reservations, exceptions or terms,
but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained
in the document recorded February 5, 1980 in Book F122, page 460,
Official Records.
8. ANY RIGHTS, interests, or claims adverse to those of the vestee herein
which may exist or arise by reason of the following facts shown on a
survey plat entitled ALTA/ACSM Land Title Survey for: Network Appliance,
1345 Crossman Avenue, dated September 20, 2000, prepared by Kier &
Wright, Job No. 97208-16.
(a) The fact that a chain link fence extends across the southerly
boundary of said land.
TRACT 4:
1. TAXES for the fiscal year 2000-2001, a lien not yet due or payable.
2. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
3. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Slope Easement
In favor of : City of Sunnyvale
Recorded : November 16, 1976 in Book C414, page 90, Official
Records
Exhibit B-1 Page 8
<PAGE> 30
Affects : Westerly 5 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance,
1345 Crossman Avenue, dated September 20, 2000,
prepared by Kier & Wright, Job No. 97208-16.
4. EASEMENT recorded on that certain Map for the purposes stated herein and
incidents thereto
Purpose : Public utilities easement
Recorded : July 7, 1994 in Book 657 of Maps, page 9, Official
Records
Affects : Westerly 10 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance,
1345 Crossman Avenue, dated September 20, 2000,
prepared by Kier & Wright, Job No. 97208-16.
5. Covenants, Conditions and Restrictions in the Declaration of Protective
Covenants - Moffett Industrial Park No. 2) recorded December 23, 1971 in
Book 9640, page 443, Official Records; 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 and 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)
related to handicap but does not discriminate against handicapped
persons.
ASSIGNMENT AND ASSUMPTION of the rights, powers, duties, obligations,
and reservations of Moffett Park Associates, in favor of The Prudential
Insurance Company of America, recorded February 8, 1977 in Book C583,
page 685, Official Records.
6. LIMITATIONS, covenants, restrictions, reservations, exceptions or terms,
but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained
in the document recorded February 5, 1980 in Book F122, page 460,
Official Records.
TRACT 5:
1. TAXES for the fiscal year 2000-2001, a lien not yet due or payable.
2. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
3. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Slope Easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 430, Official
Records
Affects : The Northeasterly and Easterly 18 feet, as shown on
a survey plat entitled ALTA/ACSM Land Title Survey
for: Network Appliance, 1345 Crossman Avenue, dated
September 20, 2000, prepared by Kier & Wright, Job
No.
Exhibit B-1 Page 9
<PAGE> 31
97208-16.
4. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 450, Official
Records
Affects : The Northeasterly and Easterly 7 feet, as shown on a
survey plat entitled ALTA/ACSM Land Title Survey
for: Network Appliance, 1345 Crossman Avenue, dated
September 20, 2000, prepared by Kier & Wright, Job
No. 97208-16.
5. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Sidewalk and sign easement
Recorded : July 7, 1994, in Book 657 of Maps, page 9, Official
Records
Affects : The Northerly 2 feet, as shown on a survey plat
entitled ALTA/ACSM Land Title Survey for: Network
Appliance, 1345 Crossman Avenue, dated September 20,
2000, prepared by Kier & Wright, Job No. 97208-16.
6. LIMITATIONS, covenants, restrictions, reservations, exceptions or terms,
but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained
in the document recorded February 5, 1980 in Book F122, page 460,
Official Records.
7. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities easement
Recorded : October 7, 1998, in Book 708 of Maps, pages 51-52,
Official Records
Affects : The Northerly 15 feet, as shown on a survey plat
entitled ALTA/ACSM Land Title Survey for: Network
Appliance, 1345 Crossman Avenue, dated September 20,
2000, prepared by Kier & Wright, Job No. 97208-16.
Exhibit B-1 Page 10
<PAGE> 32
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 Improvements but not the Land under the 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
buildings and other improvements (the "Improvements") on 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 Improvements; 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 Improvements.
Although this deed conveys Grantor's interest in the Improvements, this deed
does not convey any interest in the Land under the Improvements or any rights or
easements appurtenant to the Land. Grantor retains and reserves all right, title
and interest of Grantor in and to the Land and any rights and easements
appurtenant to Land. Further, this deed does not convey any right of access over
or right to use the Land, it being understood that the right of Grantee or its
successors and assigns to maintain or use the improvements conveyed hereby shall
be on and subject to the terms and conditions of any separate ground lease or
deed that Grantee may from time to time obtain from the owner of the Land. If
Grantee does not obtain a separate deed or
Exhibit B-2 Page 1
<PAGE> 33
ground lease giving Grantee the authority to maintain the Improvements on the
Land, Grantee shall remove or abandon the Improvements promptly upon request of
the owner of the Land. Nothing herein or in the agreements pursuant to which
this deed is being delivered shall be construed as an obligation on the part of
Grantor to deliver or cooperate reasonably in obtaining for Grantee any deed or
ground lease covering the Land described on Annex A.
Exhibit B-2 Page 2
<PAGE> 34
Date: As of BNP LEASING CORPORATION
------------
By:
--------------------------------
Its:
Attest:
--------------------------------
Its:
[NAI or Applicable Purchaser]
Date: As of By:
--------------- --------------------------------
Its:
Attest:
--------------------------------
Its:
STATE OF )
------------
) SS
COUNTY OF )
----------
On ___________________ before me,_____ , personally appeared ______ and
____ , personally known to me (or proved to me on the basis of satisfactory
evidence) to be the persons whose names are subscribed to the within instrument
and acknowledged to me that they executed the same in their authorized
capacities, and that by their signatures on the instrument the person, or the
entity upon behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal.
Signature
------------------------------
Exhibit B-2 Page 3
<PAGE> 35
)
STATE OF
------------
) SS
COUNTY OF )
----------
On ___________________ before me,_______ , personally appeared ______
and _______ , personally known to me (or proved to me on the basis of
satisfactory evidence) to be the persons whose names are subscribed to the
within instrument and acknowledged to me that they executed the same in their
authorized capacities, and that by their signatures on the instrument the
person, or the entity upon behalf of which the persons acted, executed the
instrument.
WITNESS my hand and official seal.
Signature
-------------------------------
Exhibit B-2 Page 4
<PAGE> 36
ANNEX A
LEGAL DESCRIPTION
[DRAFTING NOTE: TO THE EXTENT THAT THE "LAND" COVERED BY THE LAND LEASE CHANGES
FROM TIME TO TIME BECAUSE OF ADJUSTMENTS FOR WHICH NAI REQUESTS BNPLC'S CONSENT
OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY SUCH
CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING NOTE"
WILL BE DELETED BEFORE THE DEED TO WHICH THIS DESCRIPTION IS ATTACHED IS
ACTUALLY EXECUTED AND DELIVERED.]
The real property located in the City of Sunnyvale, County of Santa Clara, State
of California, described as follows:
TRACT 1:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map lying
within the City of Sunnyvale, being a resubdivision of a portion of Parcel B, as
shown upon that certain Parcel Map recorded in Book 345 of Maps, at page 20,
Santa Clara County Records", which Map was filed for record in the Office of the
Recorder of the County of Santa Clara, State of California, on November 17,
1976, in Book 383 of Maps, at page 35.
TRACT 2:
Together with an easement for vehicles parking over the following described
property:
A 7-foot strip of land for parking easement purposes over a portion of Parcel A,
as said Parcel A is shown on that certain Parcel Map filed for record on
November 10, 1974 in Book 292 of Maps, at page 41, records of said County, and
being more particularly described as follows:
Commencing at the Northeast corner of said Parcel A; thence North 75
(degrees)8'27" West 500.00 feet along the Northeasterly line of said Parcel A;
thence South 14(degrees)51'33" West 7.00 feet; thence parallel to Northeasterly
line of said Parcel A, South 75(degrees)08'27" East 500.00 feet to the Southeast
line of said Parcel A, North 14(degrees)51'33" East 7.00 feet to the point of
beginning.
APN: 110-32-002
ARB: 110-3-65.02
TRACT 3:
Parcel 1, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of Santa Clara, State of California on July
7, 1994, in Book 657 of Parcel Maps, Page 9.
APN: 110-32-6
ARB: 110-3-x65
Exhibit B-2 Page 5
<PAGE> 37
TRACT 4:
Parcel 2, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of Santa Clara, State of California on July
7, 1994, in Book 657 of Parcel Maps, Page 9.
APN: 110-32-7
ARB: 110-3-x65
TRACT 5:
Parcel 2, as shown on that certain parcel Map which filed for record in the
office of the recorder of the County of Santa Clara, State of California on
October 7, 1998, in Book 708 of Parcel Maps, Pages 51 and 52.
APN: 110-32-12
ARB: 110-03-65.11
Exhibit B-2 Page 6
<PAGE> 38
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 IV -- Improvements) incorporated by reference into the Lease
Agreement (Phase IV Improvements referenced in the last item of the list below),
including the following matters to the extent the same are still valid and in
force:
TRACT 1 and 2:
1. TAXES for the fiscal year 2000-2001, a lien not yet due or payable.
2. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
3. LIMITATIONS, covenants, conditions, restrictions, reservations,
exceptions or terms, but deleting any covenant, condition or restriction
indicating a preference, limitation or discrimination based on race,
color, religion, sex, handicap, familial status, or national origin to
the extent such covenants, conditions or restrictions violate 42 USC
3604(c), contained in the document recorded December 23, 1971 in Book
9640, page 443, Official Records.
Assignments and Assumption, executed by Moffett Park Associates, a
partnership to Prudential Insurance Company of America, recorded
February 8, 1977 in Book C583, page 685, Official Records.
4. AGREEMENT on the terms and conditions contained therein,
For : Waiver of Construction Credits
Between : Moffett Park Associates
And : None Shown
Recorded : September 28, 1976 in Book C307, page 346, Official
Records.
Exhibit B-2 Page 7
<PAGE> 39
5. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Construction, reconstruction, operation, repair,
maintenance, replacement, relocation and enlargement
of Public Utilities
Granted to : The City of Sunnyvale, a municipal corporation
Recorded : November 16, 1976 in Book C414, page 105, Official
Records
Affects : as follows:
Being a portion of Parcel B as shown on that certain Parcel Map recorded
August 28, 1974 in Book of Maps, at page 20, Santa Clara County Records;
a strip of land 10 feet in width, measured at right angles lying
Northerly and Easterly of and contiguous to the following described
line; beginning at the intersection of the Westerly line of Crossman
Road, 90 feet in width, with the Northerly line of Parcel A as shown on
said Map; thence North 75 degrees 7' 58" West along said Northerly line
of Parcel A 450.13 feet; thence leaving said Northerly line, North 30
degrees 7' 48" West 210.69 feet; thence North 75 degrees 8' 27" West
391.04 feet to a point on the Easterly line of the proposed Geneva
Drive, 60 feet wide, said point being the terminus of said easement.
6. ANY RIGHTS, interests, or claims adverse to those of the vestee herein
which may exist or arise by reason of the following facts shown on a
survey plat entitled ALTA/ACSM Land Title Survey for: Network Appliance,
1345 Crossman Avenue, dated September 20, 2000, prepared by Kier &
Wright, Job No. 97208-16.
TRACT 3:
1. TAXES for the fiscal year 2000-2001, a lien not yet due or payable.
2. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
3. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Slope Easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 430, Official
Records
Affects : Easterly 18 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance,
1345 Crossman Avenue, dated September 20, 2000,
prepared by Kier & Wright, Job No. 97208-16.
4. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 450, Official
Records
Affects : Easterly 7 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance,
1345 Crossman Avenue, dated September 20, 2000,
prepared by Kier & Wright, Job No. 97208-16.
Exhibit B-2 Page 8
<PAGE> 40
5. Covenants, Conditions and Restrictions in the Declaration of Protective
Covenants -- Moffett Industrial Park No. 2) recorded December 23, 1971
in Book 9640, page 443, Official Records; 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 and 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)
related to handicap but does not discriminate against handicapped
persons.
ASSIGNMENT AND ASSUMPTION of the rights, powers, duties, obligations,
and reservations of Moffett Park Associates, in favor of The Prudential
Insurance Company of America, recorded February 8, 1977 in Book C583,
page 685, Official Records.
6. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities
Granted to : City of Sunnyvale
Recorded : November 16, 1976 in Book C414, page 105, Official
Records
Affects : Southerly 10 feet, as shown on a survey plat
entitled ALTA/ACSM Land Title Survey for: Network
Appliance, 1345 Crossman Avenue, dated September 20,
2000, prepared by Kier & Wright, Job No. 97208-16.
7. LIMITATIONS, covenants, restrictions, reservations, exceptions or terms,
but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained
in the document recorded February 5, 1980 in Book F122, page 460,
Official Records.
8. ANY RIGHTS, interests, or claims adverse to those of the vestee herein
which may exist or arise by reason of the following facts shown on a
survey plat entitled ALTA/ACSM Land Title Survey for: Network Appliance,
1345 Crossman Avenue, dated September 20, 2000, prepared by Kier &
Wright, Job No. 97208-16.
(a) The fact that a chain link fence extends across the southerly
boundary of said land.
TRACT 4:
1. TAXES for the fiscal year 2000-2001, a lien not yet due or payable.
2. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
3. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Slope Easement
In favor of : City of Sunnyvale
Exhibit B-2 Page 9
<PAGE> 41
Recorded : November 16, 1976 in Book C414, page 90, Official
Records
Affects : Westerly 5 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance,
1345 Crossman Avenue, dated September 20, 2000,
prepared by Kier & Wright, Job No. 97208-16.
4. EASEMENT recorded on that certain Map for the purposes stated herein and
incidents thereto
Purpose : Public utilities easement
Recorded : July 7, 1994 in Book 657 of Maps, page 9, Official
Records
Affects : Westerly 10 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance,
1345 Crossman Avenue, dated September 20, 2000,
prepared by Kier & Wright, Job No. 97208-16.
5. Covenants, Conditions and Restrictions in the Declaration of Protective
Covenants -- Moffett Industrial Park No. 2) recorded December 23, 1971
in Book 9640, page 443, Official Records; 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 and 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)
related to handicap but does not discriminate against handicapped
persons.
ASSIGNMENT AND ASSUMPTION of the rights, powers, duties, obligations,
and reservations of Moffett Park Associates, in favor of The Prudential
Insurance Company of America, recorded February 8, 1977 in Book C583,
page 685, Official Records.
6. LIMITATIONS, covenants, restrictions, reservations, exceptions or terms,
but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained
in the document recorded February 5, 1980 in Book F122, page 460,
Official Records.
TRACT 5:
1. TAXES for the fiscal year 2000-2001, a lien not yet due or payable.
2. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
3. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Slope Easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 430, Official
Records
Exhibit B-2 Page 10
<PAGE> 42
Affects : The Northeasterly and Easterly 18 feet, as shown on
a survey plat entitled ALTA/ACSM Land Title Survey
for: Network Appliance, 1345 Crossman Avenue,
dated September 20, 2000, prepared by Kier & Wright,
Job No. 97208-16.
4. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 450, Official
Records
Affects : The Northeasterly and Easterly 7 feet, as shown on a
survey plat entitled ALTA/ACSM Land Title Survey
for: Network Appliance, 1345 Crossman Avenue, dated
September 20, 2000, prepared by Kier & Wright, Job
No. 97208-16.
5. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Sidewalk and sign easement
Recorded : July 7, 1994, in Book 657 of Maps, page 9, Official
Records
Affects : The Northerly 2 feet, as shown on a survey plat
entitled ALTA/ACSM Land Title Survey for: Network
Appliance, 1345 Crossman Avenue, dated September 20,
2000, prepared by Kier & Wright, Job No. 97208-16.
6. LIMITATIONS, covenants, restrictions, reservations, exceptions or terms,
but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained
in the document recorded February 5, 1980 in Book F122, page 460,
Official Records.
7. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities easement
Recorded : October 7, 1998, in Book 708 of Maps, pages 51-52,
Official Records
Affects : The Northerly 15 feet, as shown on a survey plat
entitled ALTA/ACSM Land Title Survey for: Network
Appliance, 1345 Crossman Avenue, dated September 20,
2000, prepared by Kier & Wright, Job No. 97208-16.
Exhibit B-2 Page 11
<PAGE> 43
EXHIBIT B-3
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 Improvements but not the Land under the 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
buildings and other improvements (the "Improvements") on 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 Improvements; 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 Improvements.
Although this deed conveys Grantor's interest in the Improvements on the Land,
this deed does not convey any interest in the Land itself or any rights or
easements appurtenant to the Land. Prior to or contemporaneously with the
delivery of this deed, Grantor has conveyed or is conveying the Land and
appurtenant rights and easements to another party, subject to the terms and
conditions of a Ground Lease dated ________, filed or to be filed for record in
the Santa Clara County records. Grantor is assigning it's rights as lessee under
the Ground Lease to Grantee by a separate instrument dated of even date
herewith.
Exhibit B-3 Page 1
<PAGE> 44
Date: As of BNP LEASING CORPORATION
------------
By:
--------------------------------
Its:
Attest:
--------------------------------
Its:
[NAI or Applicable Purchaser]
Date: As of By:
--------------- --------------------------------
Its:
Attest:
--------------------------------
Its:
STATE OF )
------------
) SS
COUNTY OF )
----------
On ___________________ before me, __________, personally appeared
__________ and __________, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the persons whose names are subscribed to the
within instrument and acknowledged to me that they executed the same in their
authorized capacities, and that by their signatures on the instrument the
person, or the entity upon behalf of which the persons acted, executed the
instrument.
WITNESS my hand and official seal.
Signature
----------------------------
Exhibit B-3 Page 2
<PAGE> 45
)
STATE OF
------------
) SS
COUNTY OF )
----------
On ___________________ before me, __________, personally appeared
__________ and __________, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the persons whose names are subscribed to the
within instrument and acknowledged to me that they executed the same in their
authorized capacities, and that by their signatures on the instrument the
person, or the entity upon behalf of which the persons acted, executed the
instrument.
WITNESS my hand and official seal.
Signature
-----------------------------
Exhibit B-3 Page 3
<PAGE> 46
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.]
Legal Description
The real property located in the City of Sunnyvale, County of Santa Clara, State
of California, described as follows:
TRACT 1:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map lying
within the City of Sunnyvale, being a resubdivision of a portion of Parcel B, as
shown upon that certain Parcel Map recorded in Book 345 of Maps, at page 20,
Santa Clara County Records", which Map was filed for record in the Office of the
Recorder of the County of Santa Clara, State of California, on November 17,
1976, in Book 383 of Maps, at page 35.
TRACT 2:
Together with an easement for vehicles parking over the following described
property:
A 7-foot strip of land for parking easement purposes over a portion of Parcel A,
as said Parcel A is shown on that certain Parcel Map filed for record on
November 10, 1974 in Book 292 of Maps, at page 41, records of said County, and
being more particularly described as follows:
Commencing at the Northeast corner of said Parcel A; thence North 75(degrees)
8'27" West 500.00 feet along the Northeasterly line of said Parcel A; thence
South 14(degrees) 51'33" West 7.00 feet; thence parallel to Northeasterly line
of said Parcel A, South 75(degrees) 08'27" East 500.00 feet to the Southeast
line of said Parcel A, North 14(degrees) 51'33" East 7.00 feet to the point of
beginning.
APN: 110-32-002
ARB: 110-3-65.02
TRACT 3:
Parcel 1, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of Santa Clara, State of California on July
7, 1994, in Book 657 of Parcel Maps, Page 9.
Exhibit B-3 Page 4
<PAGE> 47
APN: 110-32-6
ARB: 110-3-x65
TRACT 4:
Parcel 2, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of Santa Clara, State of California on July
7, 1994, in Book 657 of Parcel Maps, Page 9.
APN: 110-32-7
ARB: 110-3-x65
TRACT 5:
Parcel 2, as shown on that certain parcel Map which filed for record in the
office of the recorder of the County of Santa Clara, State of California on
October 7, 1998, in Book 708 of Parcel Maps, Pages 51 and 52.
APN: 110-32-12
ARB: 110-03-65.11
Exhibit B-3 Page 5
<PAGE> 48
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 IV -- Improvements) incorporated by reference into the Lease
Agreement (Phase IV Improvements referenced in the last item of the list below),
including the following matters to the extent the same are still valid and in
force:
TRACT 1 and 2:
1. TAXES for the fiscal year 2000-2001, a lien not yet due or payable.
2. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
3. ELIMITATIONS, covenants, conditions, restrictions, reservations,
exceptions or terms, but deleting any covenant, condition or restriction
indicating a preference, limitation or discrimination based on race,
color, religion, sex, handicap, familial status, or national origin to
the extent such covenants, conditions or restrictions violate 42 USC
3604(c), contained in the document recorded December 23, 1971 in Book
9640, page 443, Official Records.
Assignments and Assumption, executed by Moffett Park Associates, a
partnership to Prudential Insurance Company of America, recorded
February 8, 1977 in Book C583, page 685, Official Records.
4. AGREEMENT on the terms and conditions contained therein,
For : Waiver of Construction Credits
Between : Moffett Park Associates
And : None Shown
Recorded : September 28, 1976 in Book C307, page 346, Official
Records.
5. EASEMENT for the purposes stated herein and incidents thereto
Exhibit B-3 Page 6
<PAGE> 49
Purpose : Construction, reconstruction, operation, repair,
maintenance, replacement,
relocation and enlargement of Public Utilities
Granted to : The City of Sunnyvale, a municipal corporation
Recorded : November 16, 1976 in Book C414, page 105, Official
Records
Affects : as follows:
Being a portion of Parcel B as shown on that certain Parcel Map recorded
August 28, 1974 in Book of Maps, at page 20, Santa Clara County Records;
a strip of land 10 feet in width, measured at right angles lying
Northerly and Easterly of and contiguous to the following described
line; beginning at the intersection of the Westerly line of Crossman
Road, 90 feet in width, with the Northerly line of Parcel A as shown on
said Map; thence North 75(degrees) 7'58" West along said Northerly line
of Parcel A 450.13 feet; thence leaving said Northerly line, North
30(degrees) 7'48" West 210.69 feet; thence North 75(degrees) 8' 27" West
391.04 feet to a point on the Easterly line of the proposed Geneva
Drive, 60 feet wide, said point being the terminus of said easement.
6. ANY RIGHTS, interests, or claims adverse to those of the vestee herein
which may exist or arise by reason of the following facts shown on a
survey plat entitled ALTA/ACSM Land Title Survey for: Network Appliance,
1345 Crossman Avenue, dated September 20, 2000, prepared by Kier &
Wright, Job No. 97208-16.
TRACT 3:
1. TAXES for the fiscal year 2000-2001, a lien not yet due or payable.
2. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
3. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Slope Easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 430, Official
Records
Affects : Easterly 18 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance,
1345 Crossman Avenue, dated September 20, 2000,
prepared by Kier & Wright, Job No. 97208-16.
4. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 450, Official
Records
Affects : Easterly 7 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance,
1345 Crossman Avenue, dated September 20, 2000,
prepared by Kier & Wright, Job No. 97208-16.
Exhibit B-3 Page 7
<PAGE> 50
5. Covenants, Conditions and Restrictions in the Declaration of Protective
Covenants -- Moffett Industrial Park No. 2) recorded December 23, 1971
in Book 9640, page 443, Official Records; 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 and 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)
related to handicap but does not discriminate against handicapped
persons.
ASSIGNMENT AND ASSUMPTION of the rights, powers, duties, obligations,
and reservations of Moffett Park Associates, in favor of The Prudential
Insurance Company of America, recorded February 8, 1977 in Book C583,
page 685, Official Records.
6. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities
Granted to : City of Sunnyvale
Recorded : November 16, 1976 in Book C414, page 105, Official
Records
Affects : Southerly 10 feet, as shown on a survey plat
entitled ALTA/ACSM Land Title Survey for: Network
Appliance, 1345 Crossman Avenue, dated September 20,
2000, prepared by Kier & Wright, Job No. 97208-16.
7. LIMITATIONS, covenants, restrictions, reservations, exceptions or terms,
but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained
in the document recorded February 5, 1980 in Book F122, page 460,
Official Records.
8. ANY RIGHTS, interests, or claims adverse to those of the vestee herein
which may exist or arise by reason of the following facts shown on a
survey plat entitled ALTA/ACSM Land Title Survey for: Network Appliance,
1345 Crossman Avenue, dated September 20, 2000, prepared by Kier &
Wright, Job No. 97208-16.
(a) The fact that a chain link fence extends across the southerly
boundary of said land.
TRACT 4:
1. TAXES for the fiscal year 2000-2001, a lien not yet due or payable.
2. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
3. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Slope Easement
Exhibit B-3 Page 8
<PAGE> 51
In favor of : City of Sunnyvale
Recorded : November 16, 1976 in Book C414, page 90, Official
Records
Affects : Westerly 5 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance,
1345 Crossman Avenue, dated September 20, 2000,
prepared by Kier & Wright, Job No. 97208-16.
4. EASEMENT recorded on that certain Map for the purposes stated herein and
incidents thereto
Purpose : Public utilities easement
Recorded : July 7, 1994 in Book 657 of Maps, page 9, Official
Records
Affects : Westerly 10 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance,
1345 Crossman Avenue, dated September 20, 2000,
prepared by Kier & Wright, Job No. 97208-16.
5. Covenants, Conditions and Restrictions in the Declaration of Protective
Covenants -- Moffett Industrial Park No. 2) recorded December 23, 1971
in Book 9640, page 443, Official Records; 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 and 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)
related to handicap but does not discriminate against handicapped
persons.
ASSIGNMENT AND ASSUMPTION of the rights, powers, duties, obligations,
and reservations of Moffett Park Associates, in favor of The Prudential
Insurance Company of America, recorded February 8, 1977 in Book C583,
page 685, Official Records.
6. LIMITATIONS, covenants, restrictions, reservations, exceptions or terms,
but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained
in the document recorded February 5, 1980 in Book F122, page 460,
Official Records.
TRACT 5:
1. TAXES for the fiscal year 2000-2001, a lien not yet due or payable.
2. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code,
resulting from changes of ownership or completion of construction on or
after the date hereof.
3. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Slope Easement
In favor of : City of Sunnyvale
Exhibit B-3 Page 9
<PAGE> 52
Recorded : October 9, 1964 in Book 6695, page 430, Official
Records
Affects : The Northeasterly and Easterly 18 feet, as shown on
a survey plat entitled ALTA/ACSM Land Title Survey
for: Network Appliance, 1345 Crossman Avenue, dated
September 20, 2000, prepared by Kier & Wright, Job
No. 97208-16.
4. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities easement
In favor of : City of Sunnyvale
Recorded : October 9, 1964 in Book 6695, page 450, Official
Records
Affects : The Northeasterly and Easterly 7 feet, as shown on
a survey plat entitled ALTA/ACSM Land Title Survey
for: Network Appliance, 1345 Crossman Avenue, dated
September 20, 2000, prepared by Kier & Wright, Job
No. 97208-16.
5. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Sidewalk and sign easement
Recorded : July 7, 1994, in Book 657 of Maps, page 9, Official
Records
Affects : The Northerly 2 feet, as shown on a survey plat
entitled ALTA/ACSM Land Title Survey for: Network
Appliance, 1345 Crossman Avenue, dated September 20,
2000, prepared by Kier & Wright, Job No. 97208-16.
6. LIMITATIONS, covenants, restrictions, reservations, exceptions or terms,
but deleting any covenant, condition or restriction indicating a
preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained
in the document recorded February 5, 1980 in Book F122, page 460,
Official Records.
7. EASEMENT for the purposes stated herein and incidents thereto
Purpose : Public utilities easement
Recorded : October 7, 1998, in Book 708 of Maps, pages 51-52,
Official Records
Affects : The Northerly 15 feet, as shown on a survey plat
entitled ALTA/ACSM Land Title Survey for: Network
Appliance, 1345 Crossman Avenue, dated September 20,
2000, prepared by Kier & Wright, Job No. 97208-16.
Exhibit B-3 Page 10
<PAGE> 53
EXHIBIT C
BILL OF SALE AND ASSIGNMENT
Reference is made to: (1) that certain Purchase Agreement (Phase IV --
Improvements) between BNP Leasing Corporation ("ASSIGNOR") and Network
Appliance, Inc., dated as of October 2, 2000, (the "PURCHASE AGREEMENT") and (2)
that certain Lease Agreement (Phase IV Improvements) between Assignor, as
landlord, and Network Appliance, Inc., as tenant, dated as of October 2, 2000
(the "IMPROVEMENTS 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 IV -- Improvements) incorporated by
reference into both the Purchase Agreement and Improvements 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 Improvements Lease [DRAFTING NOTE: THE FOLLOWING WILL BE ADDED
ONLY IF APPLICABLE BECAUSE OF THE SIMULTANEOUS DELIVERY OF A GRANT DEED IN THE
FORM OF EXHIBIT B-3: and the Ground Lease dated _________, between _________, as
lessor, and Assignor, as lessee, filed for record on in ___________ of Santa
Clara County records (the "Ground Lease")];
(b) any pending or future award made because of any condemnation
affecting the Property or because of any conveyance to be made in lieu thereof,
and any unpaid award for damage to the Property and any unpaid proceeds of
insurance or claim or cause of action for damage, loss or injury to the
Property; and
(c) all other property included within the definition of "Property" as
set forth in the Purchase Agreement, including but not limited to any of the
following transferred to Assignor by the tenant pursuant to Paragraph 7 of the
Improvements Lease or otherwise acquired by Assignor, at the time of the
execution and delivery of the Improvements Lease and Purchase Agreement or
thereafter, by reason of Assignor's status as the owner of any interest in the
Property: (1) any goods, equipment, furnishings, furniture, chattels and
tangible personal property of whatever nature that are located on the Property
and all renewals or replacements of or substitutions for any of the foregoing;
(ii) the rights of Assignor, existing at the time of the execution of the
Improvements Lease and Purchase Agreement or thereafter arising, under Permitted
Encumbrances or Development Documents (both as defined in the Improvements
Lease); and (iii) any other permits, licenses, franchises, certificates, and
other rights and privileges related to the Property that Assignee would have
acquired if Assignee had itself acquired the Improvements covered by the
Improvements Lease and constructed the Improvements included in the Property.
Provided, however, excluded from this conveyance and reserved to Assignor are
any rights or privileges of Assignor under the following ("EXCLUDED RIGHTS"):
(1) the indemnities set forth in the Improvements Lease, whether such rights are
presently known or unknown, including rights
Exhibit C Page 1
<PAGE> 54
of the Assignor to be indemnified against environmental claims of third parties
as provided in the Improvements Lease which may not presently be known, (2)
provisions in the Improvements Lease that establish the right of Assignor to
recover any accrued unpaid rent under the Improvements 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 Improvements 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 Improvements 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.
IN WITNESS WHEREOF, the parties have executed this instrument as of
_______________, _______ .
ASSIGNOR:
BNP LEASING CORPORATION a Delaware
corporation
By:
--------------------------------------
Its:
--------------------------------------
ASSIGNEE:
[NAI or the Applicable Purchaser], a
--------------------
By:
--------------------------------------
Its:
--------------------------------------
Exhibit C Page 2
<PAGE> 55
STATE OF )
------------
) SS
COUNTY OF )
----------
On _________________ before me, _________________, personally appeared
_________________ and _________________, personally known to me (or proved to me
on the basis of satisfactory evidence) to be the persons whose names are
subscribed to the within instrument and acknowledged to me that they executed
the same in their authorized capacities, and that by their signatures on the
instrument the person, or the entity upon behalf of which the persons acted,
executed the instrument.
WITNESS my hand and official seal.
Signature
---------------------------------
STATE OF )
------------
) SS
COUNTY OF )
----------
On __________________ before me, _________________, personally appeared
_________________ and _________________, personally known to me (or proved to me
on the basis of satisfactory evidence) to be the persons whose names are
subscribed to the within instrument and acknowledged to me that they executed
the same in their authorized capacities, and that by their signatures on the
instrument the person, or the entity upon behalf of which the persons acted,
executed the instrument.
WITNESS my hand and official seal.
Signature
---------------------------------
Exhibit C Page 3
<PAGE> 56
ANNEX A
LEGAL DESCRIPTION
[DRAFTING NOTE: TO THE EXTENT THAT THE "LAND" COVERED BY THE OTHER LEASE CHANGES
FROM TIME TO TIME BECAUSE OF ADJUSTMENTS FOR WHICH NAI REQUESTS BNPLC'S CONSENT
OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY SUCH
CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING NOTE"
WILL BE DELETED BEFORE THE DOCUMENT TO WHICH THIS DESCRIPTION IS ATTACHED IS
ACTUALLY EXECUTED AND DELIVERED.]
The real property located in the City of Sunnyvale, County of Santa Clara, State
of California, described as follows:
TRACT 1:
All of Parcel 2, as shown upon that certain Map entitled, "Parcel Map lying
within the City of Sunnyvale, being a resubdivision of a portion of Parcel B, as
shown upon that certain Parcel Map recorded in Book 345 of Maps, at page 20,
Santa Clara County Records", which Map was filed for record in the Office of the
Recorder of the County of Santa Clara, State of California, on November 17,
1976, in Book 383 of Maps, at page 35.
TRACT 2:
Together with an easement for vehicles parking over the following described
property:
A 7-foot strip of land for parking easement purposes over a portion of Parcel A,
as said Parcel A is shown on that certain Parcel Map filed for record on
November 10, 1974 in Book 292 of Maps, at page 41, records of said County, and
being more particularly described as follows:
Commencing at the Northeast corner of said Parcel A; thence North
75(degrees)8'27" West 500.00 feet along the Northeasterly line of said Parcel A;
thence South 14(degrees)51'33" West 7.00 feet; thence parallel to Northeasterly
line of said Parcel A, South 75(degrees)08'27" East 500.00 feet to the Southeast
line of said Parcel A, North 14(degrees)51'33" East 7.00 feet to the point of
beginning.
APN: 110-32-002
ARB: 110-3-65.02
TRACT 3:
Parcel 1, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of Santa Clara, State of California on July
7, 1994, in Book 657 of Parcel Maps, Page 9.
APN: 110-32-6
ARB: 110-3-x65
Exhibit C Page 4
<PAGE> 57
TRACT 4:
Parcel 2, as shown on that certain Parcel Map which filed for record in the
office of the recorder of the County of Santa Clara, State of California on July
7, 1994, in Book 657 of Parcel Maps, Page 9.
APN: 110-32-7
ARB: 110-3-x65
TRACT 5:
Parcel 2, as shown on that certain parcel Map which filed for record in the
office of the recorder of the County of Santa Clara, State of California on
October 7, 1998, in Book 708 of Parcel Maps, Pages 51 and 52.
APN: 110-32-12
ARB: 110-03-65.11
Exhibit C Page 5
<PAGE> 58
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 IV - Improvements) incorporated by reference into the Purchase Agreement
(Phase IV- Improvements) between BNPLC and Network Appliance, Inc. dated October
___, 2000, 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:
Exhibit D Page 1
<PAGE> 59
-------------------------------
Title:
-------------------------------
Exhibit C Page 2
<PAGE> 60
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]
Exhibit E Page 1
<PAGE> 61
CORPORATE RESOLUTIONS OF
BNP LEASING CORPORATION
WHEREAS, pursuant to that certain Purchase Agreement (Phase IV --
Improvements) (herein called the "Purchase Agreement") dated as of October 2,
2000, by and between BNP Leasing Corporation (the "Corporation") and [NAI OR THE
APPLICABLE PURCHASER AS THE CASE MAY BE] ("Purchaser"), the Corporation agreed
to sell and Purchaser agreed to purchase or cause the Applicable Purchaser (as
defined in the Purchase Agreement) to purchase the Corporation's interest in the
property (the "Property") located in Sunnyvale, California more particularly
described therein.
NOW THEREFORE, BE IT RESOLVED, that the Board of Directors of the
Corporation, in its best business judgment, deems it in the best interest of the
Corporation and its shareholders that the Corporation convey the Property to
Purchaser or the Applicable Purchaser pursuant to and in accordance with the
terms of the Purchase Agreement.
RESOLVED FURTHER, that the proper officers of the Corporation, and each
of them, are hereby authorized and directed in the name and on behalf of the
Corporation to cause the Corporation to fulfill its obligations under the
Purchase Agreement.
RESOLVED FURTHER, that the proper officers of the Corporation, and each
of them, are hereby authorized and directed to take or cause to be taken any and
all actions and to prepare or cause to be prepared and to execute and deliver
any and all deeds and other documents, instruments and agreements that shall be
necessary, advisable or appropriate, in such officer's sole and absolute
discretion, to carry out the intent and to accomplish the purposes of the
foregoing resolutions.
Exhibit E Page 2
<PAGE> 62
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:
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Name:
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Title:
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Exhibit F Page 1
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EXHIBIT G
NOTICE OF ELECTION TO TERMINATE THE PURCHASE OPTION AND
NAI'S INITIAL REMARKETING RIGHTS AND OBLIGATIONS
BNP Leasing Corporation
12201 Merit Drive
Suite 860
Dallas, Texas 75251
Attention: Lloyd G. Cox
Re: Purchase Agreement (Phase IV -- Improvements) dated as of October 2, 2000
(the "Purchase Agreement"), between Network Appliance, Inc. ("NAI") and BNP
Leasing Corporation ("BNPLC")
Gentlemen:
Capitalized terms used in this letter are intended to have the meanings assigned
to them in the Purchase Agreement referenced above. This letter shall constitute
a notice, given before the Base Rent Commencement Date (All Buildings) pursuant
to subparagraph 4(B) of the Purchase Agreement, of NAI's election to terminate
the Purchase Option and NAI's Initial Remarketing Rights and Obligations. NAI
irrevocably elects to terminate the Purchase Option and NAI's Initial
Remarketing Rights and Obligations effective immediately, subject only to the
conditions described below.
NAI acknowledges that the election made by NAI described above constitutes an
Issue 97-10 Election under and as defined in the Operative Documents.
NAI also acknowledges that its right to terminate the Purchase Option and NAI's
Initial Remarketing Rights and Obligations is subject to the condition precedent
that (x) NAI shall have given Notice of NAI's Election to Terminate pursuant to
Paragraph 5(D) of the Construction Management Agreement, or (y) BNPLC shall have
given any FOCB Notice as provided in Paragraph 5(E) of the Construction
Management Agreement, or (z) BNPLC shall have given notice of its election to
accelerate the Designated Sale Date when an Event of Default has occurred and is
continuing as provided in clause (5) of the definition Designated Sale Date in
the Common Definitions and Provisions Agreement (Phase IV -- Improvements).
Accordingly, if none of the notices described in the preceding sentence have
been given, the Purchase Option and NAI's Initial Remarketing Rights and
Obligations shall not terminate by reason of this notice.
NAI further acknowledges that no termination of the Purchase Option and NAI's
Initial Remarketing Rights and Obligations by NAI pursuant to this notice shall
be effective, unless contemporaneously with the giving of this notice NAI shall
deliver to BNPLC a full Issue 97-10 Prepayment. NAI hereby covenants to pay, if
NAI has not already done so, a full Issue 97-10 Prepayment to BNPLC.
Finally, NAI acknowledges that a termination of the Purchase Option and NAI's
Initial Remarketing Rights and Obligations pursuant to this notice shall cause
the Improvements Lease
Exhibit F Page 1
<PAGE> 64
to terminate as of the Base Rent Commencement Date (All Buildings) pursuant to
subparagraph 1(b) of the Improvements Lease.
Executed this _____ day of ______________, 2000.
NETWORK APPLIANCE, INC.
Name:
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Title:
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[cc all Participants]
Exhibit E Page 2