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EXHIBIT 10.67
CLOSING CERTIFICATE
AND
AGREEMENT
(PHASE IV)
BETWEEN
NETWORK APPLIANCE, INC.,
("NAI")
AND
BNP LEASING CORPORATION
("BNPLC")
OCTOBER 2, 2000
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TABLE OF CONTENTS
Page
1 Representations, Warranties And Covenants Of NAI Concerning The Property.............2
(A) Condition of the Property.....................................................2
(B) Title to the Property.........................................................2
(C) Title Insurance...............................................................2
(D) Environmental Representations.................................................2
(E) Cooperation by NAI and its Affiliates.........................................3
2 Other Representations, Warranties, Covenants And Acknowledgments Of NAI..............3
(A) No Default or Violation of Other Agreements...................................3
(B) No Suits......................................................................3
(C) Enforceability................................................................4
(D) Solvency......................................................................4
(E) Organization..................................................................4
(F) Existence.....................................................................4
(G) Not a Foreign Person..........................................................4
(H) Investment Company Act........................................................4
(I) ERISA.........................................................................4
(J) Use of Proceeds...............................................................5
(K) Omissions.....................................................................5
(L) [Intentionally deleted].......................................................5
(M) Further Assurances............................................................5
(N) No Implied Representations or Promises by BNPLC...............................6
3 Limited Covenants And Representations By BNPLC.......................................6
(A) Cooperation of BNPLC to Facilitate Construction, Development and Use..........6
(B) Actions Permitted by NAI Without BNPLC's Consent..............................7
(C) Waiver of Landlord's Liens....................................................8
(D) Estoppel Letter...............................................................8
(E) Limited Representations by BNPLC Concerning Accounting Matters................8
(F) Other Limited Representations by BNPLC........................................9
(G) Partial Release Provisions...................................................10
4 Obligations Of NAI Under Other Operative Documents Not Limited By This Agreement....12
5 Obligations Of NAI Hereunder Not Limited By Other Operative Documents...............12
6 Waiver Of Jury Trial................................................................12
7 Amendment And Restatement...........................................................13
Exhibits and Schedules
Exhibit A Legal Description
Exhibit B Permitted Encumbrance List
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Exhibit C Development Document List
Exhibit D Standard Notice of Request for Action by BNPLC
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CLOSING CERTIFICATE AND AGREEMENT (PHASE IV)
This CLOSING CERTIFICATE AND AGREEMENT (PHASE IV) (this "AGREEMENT"), by
and between NETWORK APPLIANCE, INC., a California corporation ("NAI"), and BNP
LEASING CORPORATION, a Delaware corporation ("BNPLC"), is made and dated as of
October 2, 2000 (the "EFFECTIVE Date").
RECITALS
A. Contemporaneously with the execution of this Agreement, BNPLC and NAI
are executing a Common Definitions and Provisions Agreement (Phase IV -
Improvements) (the "IMPROVEMENTS CDPA"), and a Common Definitions and Provisions
Agreement (Phase IV - Land) (the "LAND CDPA"), each dated as of the Effective
Date, which are each incorporated into and made a part of this Agreement for all
purposes. Capitalized terms defined in the Improvements CDPA and used but not
otherwise defined herein are intended in this Agreement to have the respective
meanings ascribed to them in the Improvements CDPA. Any capitalized terms
defined in the Land CDPA and used but not otherwise defined herein or in the
Improvements CDPA are intended in this Agreement to have the respective meanings
ascribed to them in the Land CDPA. As used in this Agreement, "PROPERTY" is
intended to mean, collectively, the Property as defined in the Improvements CDPA
and the Property as defined in the Land CDPA; "IMPROVEMENT DOCUMENTS" is
intended to mean, collectively, the Operative Documents as defined in the
Improvements CDPA; "LAND DOCUMENTS" is intended to mean the Operative Documents
as defined in the Land CDPA; "OPERATIVE DOCUMENTS" is intended to mean the
Improvement Documents and the Land Documents, collectively; "IMPROVEMENTS LEASE"
is intended to mean the Lease as defined in the Improvements CDPA; "LEASES" is
intended to mean the Improvements Lease and the Lease as defined in the Land
CDPA, collectively; "PURCHASE AGREEMENTS" is intended to mean the Purchase
Agreement as defined in the Improvements CDPA and the Purchase Agreement as
defined in the Land CDPA, collectively; collectively; "PLEDGE AGREEMENTS" is
intended to mean the Pledge Agreement as defined in the Improvements CDPA and
the Pledge Agreement as defined in the Land CDPA, collectively; and "DESIGNATED
SALE DATE" is intended to mean the earlier of the Designated Sale Date as
defined in the Improvements CDPA or the Designated Sale Date as defined in the
Land CDPA.
B. NAI and BNPLC previously executed that Closing Certificate (Phase IV)
and Agreement dated as of December 20, 1999 (the "Prior Closing Certificate and
Agreement"). NAI and BNPLC have agreed to amend, restate and replace the Prior
Closing Certificate and Agreement as provided in Paragraph 6 below.
C. At the request of NAI and to facilitate the transactions contemplated
in the other Operative Documents, BNPLC has acquired the Land described in
Exhibit A attached hereto from Seller and any existing Improvements thereon,
subject to the Permitted Encumbrances described in Exhibit B attached hereto and
with the understanding that development and use of such Land may be subject to
or benefitted by the Development Documents described in Exhibit C attached
hereto (if any).
D. As a condition to its continued ownership of the Land and execution
of the other Operative Documents, BNPLC requires the representations, warranties
and covenants of NAI set out below.
E. As a condition to its execution of other Operative Documents, NAI
requires the representations and covenants of BNPLC set out below.
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NOW, THEREFORE, in consideration of the above recitals and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF NAI CONCERNING THE
PROPERTY. NAI represents, warrants and covenants as follows:
(A) Condition of the Property. The Land as described in Exhibit A is the
same as the land shown on the plat included as part of the survey titled
"ALTA/ACSM LAND TITLE SURVEY FOR NETWORK APPLIANCE, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, AND ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇" made by ▇▇▇▇ &
▇▇▇▇▇▇, Licensed Land Surveyor, dated September 20, 2000, as Job No. 97208-16,
which survey was delivered to BNPLC at the request of NAI. All material
improvements on the Land as of the date hereof are as shown on that survey, and
except as shown on the survey there are to the best of NAI's knowledge no
easements or encroachments visible or apparent from an inspection of the Land.
No significant encroachment of building Improvements exist across the boundaries
of the Land described in Exhibit A, and no significant building Improvements
that presently exist (or that will be constructed by NAI as part of the
Construction Project) on the Land may be disturbed by reason of the exercise of
easement or other rights created by any of the Permitted Encumbrances. Adequate
provision has been made for the Land and the Property to be served by electric,
gas, storm and sanitary sewers, sanitary water supply, telephone and other
utilities required for the use thereof. All streets, alleys and easements
necessary to serve the Land and Improvements contemplated by the Improvements
Lease and the Construction Management Agreement have been completed and are
serviceable (or can and will be completed at a cost that is reasonable in
connection with the construction contemplated in the Construction Management
Agreement). To the best of NAI's knowledge, no extraordinary circumstances
(including any use of the Land as a habitat for endangered species) exists that
would materially and adversely affect the construction of Improvements
contemplated by the Construction Management Agreement, the use of any
Improvements for their intended purposes or other reasonable future development
of the Land. NAI is not aware of any latent or patent material defects or
deficiencies in the Property that, either individually or in the aggregate,
could materially and adversely affect the use or occupancy of the Property or
the construction or use of Improvements as permitted by the Improvements Lease
and the Construction Management Agreement or could reasonably be anticipated to
endanger life or limb. No part of the Land is within a flood plain as designated
by any governmental authority.
(B) Title to the Property. The deed that Seller executed in favor of
BNPLC pursuant to the Existing Contract vested in BNPLC good and marketable
title to the Land and existing Improvements thereon, subject only to the
Permitted Encumbrances, the Development Documents and any Liens Removable by
BNPLC. NAI shall not, without the prior consent of BNPLC, create, place or
authorize, or through any act or failure to act, acquiesce in the placing of,
any deed of trust, mortgage or other Lien, whether statutory, constitutional or
contractual against or covering the Property or any part thereof (other than
Permitted Encumbrances and Liens Removable by BNPLC), regardless of whether the
same are expressly or otherwise subordinate to the Operative Documents or
BNPLC's interest in the Property.
(C) Title Insurance. Without limiting NAI's obligations under the
preceding subparagraph, contemporaneously with the execution of this Agreement
NAI shall provide to BNPLC a title insurance policy (or binder committing the
applicable title insurer to issue a title insurance policy, without the payment
of further premiums) in the amount of no less than $126,000,000, in form and
substance satisfactory to BNPLC, written by one or more title insurance
companies satisfactory to BNPLC and insuring BNPLC's fee estate in the Land and
Improvements.
(D) Environmental Representations. To the knowledge of NAI except as
otherwise disclosed in the Environmental Report: (i) no Hazardous Substances
Activity has occurred prior to the Effective Date; (ii) no owner or operator of
the Property has reported or been required to report any release of any
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Hazardous Substances on or from the Property pursuant to any Environmental Law;
and (iii) no owner or operator of the Property has received from any federal,
state or local governmental authority any warning, citation, notice of violation
or other communication regarding a suspected or known release or discharge of
Hazardous Substances on or from the Property or regarding a suspected or known
violation of Environmental Laws concerning the Property. Further, NAI represents
that to its knowledge, the Environmental Report taken as a whole is not
misleading or inaccurate in any material respect.
(E) Cooperation by NAI and its Affiliates. If neither NAI nor an
Applicable Purchaser purchases the Property pursuant to the Purchase Agreements
on the Designated Sale Date, then after the Designated Sale Date:
(1)if a use of the Property by BNPLC or any removal or
modification of Improvements proposed by BNPLC would violate any
Permitted Encumbrance, Development Document or Applicable Law unless NAI
or any of its Affiliates, as an owner of adjacent property or otherwise,
gave its consent or approval thereto or agreed to join in a modification
of a Permitted Encumbrance or Development Document, then NAI shall, to
the extent it can without violating Applicable Law, give and cause its
Affiliates to give such consent or approval or join in such
modification;
(2)to the extent, if any, that any Permitted Encumbrance,
Development Document or Applicable Law requires the consent or approval
of NAI or any of its Affiliates or of the City of Sunnyvale or any other
Person to a transfer of any interest in the Property by BNPLC or its
successors or assigns, NAI will without charge give and cause its
Affiliates to give such consent or approval and will cooperate in any
way reasonably requested by BNPLC to assist BNPLC to obtain such consent
or approval from the City or any other Person; and
(3)NAI's obligations under this subparagraph 1(E) shall be
binding upon any successor or assign of NAI with respect to the Land and
other properties encumbered by the Permitted Encumbrances or subject to
the Development Documents.
2 OTHER REPRESENTATIONS, WARRANTIES, COVENANTS AND ACKNOWLEDGMENTS OF
NAI. NAI represents, warrants, covenants and acknowledges as follows:
(A) No Default or Violation of Other Agreements. The execution, delivery
and performance by NAI of this Agreement and the other Operative Documents do
not and will not constitute a breach or default under any other material
agreement or contract to which NAI is a party or by which NAI is bound or which
affects the Property, and do not violate or contravene any law, order, decree,
rule or regulation to which NAI is subject, and such execution, delivery and
performance by NAI will not result in the creation or imposition of (or the
obligation to create or impose) any lien, charge or encumbrance on, or security
interest in, NAI's property pursuant to the provisions of any such other
material agreement.
(B) No Suits. Other than as previously disclosed in NAI's most recent
10-K filings with the Securities and Exchange Commission (copies of which have
been delivered to BNPLC), there are no judicial or administrative actions,
suits, proceedings or investigations pending or, to NAI's knowledge, threatened
that will adversely affect the Property or the validity or enforceability or
priority of this Agreement or any other Operative Document, and NAI is not in
default with respect to any order, writ, injunction, decree or demand of any
court or other governmental or regulatory authority that could materially and
adversely affect the use, occupancy or operation of the Property for the
purposes contemplated in the Leases. No condemnation or other like proceedings
are pending or, to NAI's knowledge, threatened against the Property.
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(C) Enforceability. The execution, delivery and performance of each of
the Operative Documents by NAI are duly authorized, are not in contravention of
or conflict with any term or provision of NAI's articles of incorporation or
bylaws and do not, to NAI's knowledge, conflict with any Applicable Laws or
require the consent or approval of any governmental body or other regulatory
authority that has not heretofore been obtained; provided, some consents or
approvals which are readily obtainable and which are required for NAI's
performance under the Operative Documents (for example, building permits
required for construction of the Construction Project) may not have been
heretofore obtained, but NAI shall obtain such consents or approvals as required
in connection with its performance of the Operative Documents. Each of the
Operative Documents are valid, binding and legally enforceable obligations of
NAI except as such enforcement is affected by bankruptcy, insolvency and similar
laws affecting the rights of creditors, generally, and equitable principles of
general application.
(D) Solvency. NAI is not "insolvent" on the date hereof (that is, the
sum of NAI's absolute and contingent liabilities - including the obligations of
NAI under this Agreement and the other Operative Documents - does not exceed the
fair market value of NAI's assets) and has no outstanding liens, suits,
garnishments or court actions which could render NAI insolvent or bankrupt.
NAI's capital is adequate for the businesses in which NAI is engaged and intends
to be engaged. NAI has not incurred (whether hereby or otherwise), nor does NAI
intend to incur or believe that it will incur, debts which will be beyond its
ability to pay as such debts mature. There has not been filed by or, to NAI's
knowledge, against NAI a petition in bankruptcy or a petition or answer seeking
an assignment for the benefit of creditors, the appointment of a receiver,
trustee, custodian or liquidator with respect to NAI or any significant portion
of NAI's property, reorganization, arrangement, rearrangement, composition,
extension, liquidation or dissolution or similar relief under the federal
Bankruptcy Code or any state law. The financial statements and all financial
data heretofore delivered to BNPLC relating to NAI are true, correct and
complete in all material respects. No material adverse change has occurred in
the financial position of NAI as reflected in NAI's financial statements
covering the most recent fiscal period for which NAI's financial statements have
been published.
(E) Organization. NAI is duly incorporated and legally existing under
the laws of the State of California. NAI has all requisite corporate power and
has procured or will procure on a timely basis all governmental certificates of
authority, licenses, permits, qualifications and similar documentation required
to fulfill its obligations under this Agreement and the other Operative
Documents. Further, NAI has the corporate power and adequate authority, rights
and franchises to own NAI's property and to carry on NAI's business as now
conducted and is duly qualified and in good standing in each state in which the
character of NAI's business makes such qualification necessary (including the
State of California) or, if it is not so qualified in a state other than
California, such failure does not have a material adverse effect on the
properties, assets, operations or businesses of NAI and its Subsidiaries, taken
as a whole.
(F) Existence. So long as any of the Operative Documents continue in
force, NAI shall continuously maintain its existence and its qualification to do
business in the State of California.
(G) Not a Foreign Person. NAI is not a "foreign person" within the
meaning of Sections 1445 and 7701 of the Code (i.e. NAI is not a non-resident
alien, foreign corporation, foreign partnership, foreign trust or foreign estate
as those terms are defined in the Code and regulations promulgated thereunder).
(H) Investment Company Act. NAI is not an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(I) ERISA. NAI is not and will not become an "employee benefit plan" (as
defined in Section 3(3) of ERISA) which is subject to Title I of ERISA. The
assets of NAI do not and will not in the future constitute "plan assets" of one
or more such plans within the meaning of 29 C.F.R. Section 2510.3-101. NAI is
not and will not become a "governmental plan" within the meaning of Section
3(32) of ERISA.
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Transactions by or with NAI are not subject to state statutes regulating
investments of and fiduciary obligations with respect to governmental plans.
Each Plan and, to the knowledge of NAI, any Multiemployer Plan, is in compliance
with, and has been administered in compliance with, the applicable provisions of
ERISA, the Code and any other applicable Federal or state law in all respects,
the failure to comply with which would have a material adverse effect upon the
properties, assets, operations or businesses of NAI and its Subsidiaries taken
as a whole. As of the date hereof no event or condition is occurring or exists
which would require a notice from NAI under subparagraph 15(c)(vi) of the
Leases.
(J) Use of Proceeds. In no event shall the funds advanced to NAI
pursuant to the Operative Documents be used directly or indirectly for personal,
family, household or agricultural purposes or for the purpose, whether
immediate, incidental or ultimate, of purchasing, acquiring or carrying any
"margin stock" or any "margin securities" (as such terms are defined in
Regulation U promulgated by the Board of Governors of the Federal Reserve
System) or to extend credit to others directly or indirectly for the purpose of
purchasing or carrying any such margin stock or margin securities. NAI
represents and warrants that NAI is not engaged principally, or as one of NAI's
important activities, in the business of extending credit to others for the
purpose of purchasing or carrying such margin stock or margin securities.
(K) Omissions. None of NAI's representations or warranties contained in
this Agreement or any other Operative Document or any other document,
certificate or written statement furnished to BNPLC by or on behalf of NAI
contains any untrue statement of a material fact or omits a material fact
necessary in order to make the statements contained herein or therein (when
taken in their entireties) not misleading.
(L)[Intentionally deleted].
(M) Further Assurances. NAI shall, on request of BNPLC, (i) execute,
acknowledge, deliver and record or file such further instruments and do such
further acts as may be necessary, desirable or proper to carry out more
effectively the purposes of this Agreement or any other Operative Document and
to subject to this Agreement or any other Operative Document any property
intended by the terms hereof or thereof to be covered hereby or thereby,
including specifically, but without limitation, any renewals, additions,
substitutions, replacements or appurtenances to the Property; (ii) execute,
acknowledge, deliver, procure and record or file any document or instrument
deemed advisable by BNPLC to protect its rights in and to the Property against
the rights or interests of third persons; and (iii) provide such certificates,
documents, reports, information, affidavits and other instruments and do such
further acts as may be necessary, desirable or proper in the reasonable
determination of BNPLC to enable BNPLC to comply with the requirements or
requests of any agency or authority having jurisdiction over it.
Without limiting the forgoing, NAI shall cooperate with BNPLC as
reasonably required to allow BNPLC to induce banks not affiliated with BNPLC to
become Participants. Such cooperation will include the payment of fees ("UPFRONT
SYNDICATION FEES") as provided under the heading "Upfront Fees" in the letter
from BNPLC to NAI dated August 21, 2000. Such cooperation will also include the
execution of one or more modification agreements proposed by BNPLC to any of the
Operative Documents, which agreements may change the Spread, Unsecured Spread,
Commitment Fee Rate or may limit NAI's right to designate a new Collateral
Percentage under Section 3.1 of the Pledge Agreements or may otherwise modify
terms and conditions of the Operative Documents as requested by a prospective
Participant; provided, however, that the form and substance of any such
modification agreements is approved by NAI (which approval will not be
unreasonably withheld); and, provided further, that NAI will have no obligation
to join with BNPLC in executing any such modification agreement to satisfy a
prospective Participant after the earlier of (1) the date that is one hundred
twenty days after the Effective Date, or (2) the date upon which other banks not
affiliated with BNPLC have become Participants with aggregate Percentages under
(and as defined in) the Participation Agreement of no less than eighty percent
(80%).
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(N) No Implied Representations or Promises by BNPLC. BNPLC AND BNPLC'S
AGENTS HAVE MADE NO REPRESENTATIONS OR PROMISES WITH RESPECT TO THE PROPERTY
EXCEPT AS EXPRESSLY SET FORTH IN THE OTHER OPERATIVE DOCUMENTS, AND NO RIGHTS,
EASEMENTS OR LICENSES ARE BEING ACQUIRED BY NAI BY IMPLICATION OR OTHERWISE
EXCEPT AS EXPRESSLY SET FORTH IN THE OTHER OPERATIVE DOCUMENTS.
3 LIMITED COVENANTS AND REPRESENTATIONS BY BNPLC.
(A) Cooperation of BNPLC to Facilitate Construction, Development and
Use. So long as the Leases remain in force and NAI remains in possession of the
Property, BNPLC shall take any action reasonably requested by NAI to facilitate
the construction or use of the Property permitted by the Leases or the
Construction Management Agreement; provided, however, that:
(1) This subparagraph 3(A) shall not impose upon BNPLC the
obligation to take any action that can be taken by NAI, NAI's Affiliates
or anyone else other than BNPLC as the owner of the Property.
(2) BNPLC shall not be required by this subparagraph 3(A) to make
any payment to another Person unless BNPLC shall first have received
funds from NAI, in excess of any other amounts due from NAI under any of
the Operative Documents, sufficient to make the payment. (This clause
(2) will not be construed as limiting the right of NAI to obtain
additional Construction Advances, on and subject to the terms and
conditions set forth in the Construction Management Agreement, for
payments NAI itself may pay or incur an obligation to pay to another
Person.)
(3) BNPLC shall have no obligations whatsoever under this
subparagraph 3(A) at any time after a CMA Termination Event or when an
Event of Default shall have occurred and be continuing.
(4) NAI must request any action to be taken by BNPLC pursuant to
this subparagraph 3(A), and such request must be specific and in
writing, if required by BNPLC at the time the request is made. A
suggested form for such a request is attached as Exhibit D.
(5) No action may be required of BNPLC pursuant to this
subparagraph 3(A) that could constitute a violation of any Applicable
Laws or compromise or constitute a waiver of BNPLC's rights under other
provisions of this Agreement or any of the other Operative Documents or
that for any other reason is reasonably objectionable to BNPLC.
The actions BNPLC shall take pursuant to this subparagraph 3(A) if
reasonably requested by NAI will include, subject to the conditions listed in
the proviso above, executing or consenting to, or exercising or assisting NAI to
exercise rights under any (I) grant of easements, licenses, rights of way, and
other rights in the nature of easements encumbering the Land or the
Improvements, (II) release or termination of easements, licenses, rights of way
or other rights in the nature of easements which are for the benefit of the Land
or Improvements or any portion thereof, (III) dedication or transfer of portions
of the Land not improved with a building, for road, highway or other public
purposes, (IV) agreements (other than with NAI or its Affiliates) for the use
and maintenance of common areas, for reciprocal rights of parking, ingress and
egress and amendments to any covenants and restrictions affecting the Land or
any portion thereof, (V) documents required to create or administer a
governmental special benefit district or assessment district for public
improvements and collection of special assessments, (VI) instruments necessary
or desirable for the exercise or enforcement of rights or performance of
obligations under any Permitted Encumbrance or any contract, permit, license,
franchise or other right included within the term "Property" (including, without
limitation, under the Development Documents), (VII) modifications of
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Permitted Encumbrances or Development Documents, (VIII) permit applications or
other documents required to accommodate the Construction Project, (IX)
confirmations of NAI's rights under any particular provisions of the Operative
Documents which NAI may wish to provide to a third party or (X) execution or
filing of a tract or parcel map subdividing the Land into lots or parcels or to
adjust boundary lines of the Land to facilitate construction thereon or on
adjacent land which NAI leases from BNPLC. However, the determination of whether
any such action is reasonably requested or reasonably objectionable to BNPLC may
depend in whole or in part upon the extent to which the requested action shall
result in a lien to secure payment or performance obligations against BNPLC's
interest in the Property, shall cause a decrease in the value of the Property to
less than forty-five percent (45%) of Stipulated Loss Value after any Qualified
Prepayments that may result from such action are taken into account, or shall
impose upon BNPLC any present or future obligations greater than the obligations
BNPLC is willing to accept in reliance on the indemnifications provided by NAI
under the Operative Documents.
Any Losses incurred by BNPLC because of any action taken pursuant to
this subparagraph 3(A) shall be covered by the indemnifications set forth in
subparagraph 5(c) of the Leases. Further, for purposes of such indemnification,
any action taken by BNPLC will be deemed to have been made at the request of NAI
if made pursuant to any request of counsel to or any officer of NAI (or with
their knowledge, and without their objection) in connection with the execution
or administration of the Leases or the other Operative Documents.
(B) Actions Permitted by NAI Without BNPLC's Consent. No refusal by
BNPLC to execute or join in the execution of any agreement, application or other
document requested by NAI pursuant to the preceding subparagraph 3(A) shall
preclude NAI from itself executing such agreement, application or other
document; provided, that in doing so NAI is not purporting to act for BNPLC and
does not thereby create or expand any obligations or restrictions that encumber
BNPLC's title to the Property. Further, subject to the other terms and
conditions of the Leases and other Operative Documents, NAI shall be entitled to
do any of the following in NAI's own name and to the exclusion of BNPLC without
any notice to or consent of BNPLC, provided, that (i) the Leases remain in
force, (ii) NAI remains in possession of the Property, (iii) no Event of Default
has occurred and is continuing, (iv) no CMA Termination Event has occurred, and
(v) NAI is not purporting to act for BNPLC and does not thereby create or expand
any obligations or restrictions that encumber BNPLC's title to the Property:
(1) perform obligations arising under and exercise and enforce
the rights of NAI or the owner of the Property under the Development
Documents and Permitted Encumbrances;
(2) perform obligations arising under and exercise and enforce
the rights of NAI or the owner of the Property with respect to any other
contracts or documents (such as building permits) included within the
Personal Property;
(3) recover and retain any monetary damages or other benefit
inuring to NAI or the owner of the Property through the enforcement of
any rights, contracts or other documents included within the Personal
Property (including the Development Documents and Permitted
Encumbrances); provided, that to the extent any such monetary damages
may become payable as compensation for an adverse impact on value of the
Property, the rights of BNPLC and NAI hereunder with respect to the
collection and application of such monetary damages shall be the same as
for condemnation proceeds payable because of a taking of all or any part
of the Property; and
(4) without limiting the foregoing, as tenant under the
Improvements Lease, (i) collect and retain all rents paid under the
Premises Leases; (ii) recover and retain any monetary damages or other
benefit inuring to NAI or the owner of the Real Property through the
enforcement of any
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rights under the Premises Leases (provided that this subsection (ii)
shall not apply to any damages or benefits that are required by the
terms of the Lease to be paid over to BNPLC); (iii) cancel or accept the
surrender of any space under any Premises Lease; and (iv) enforce any
guaranties or other collateral provided by Lessees under the Premises
Leases and retain the proceeds thereof.
(C) Waiver of Landlord's Liens. BNPLC waives any security interest,
statutory landlord's lien or other interest BNPLC may have in or against
computer equipment and other tangible personal property placed on the Land from
time to time that NAI or its Affiliates own or lease from other lessors;
provided, however, that BNPLC does not waive its interest in or rights with
respect to equipment or other property included within the "Property" as
described in Paragraph 7 of the Improvements Lease. Although computer equipment
or other tangible personal property may be "bolted down" or otherwise firmly
affixed to Improvements, it shall not by reason thereof become part of the
Improvements if it can be removed without causing structural or other material
damage to the Improvements and without rendering HVAC or other major building
systems inoperative and if it does not otherwise constitute "Property" as
provided in Paragraph 7 of the Improvements Lease.
(D) Estoppel Letter. Upon thirty days written request by NAI at any time
and from time to time prior to the Designated Sale Date, BNPLC shall provide a
statement in writing certifying that the Operative Documents are unmodified and
in full effect (or, if there have been modifications, that the Operative
Documents are in full effect as modified, and setting forth such modifications),
certifying the dates to which the rents payable by NAI under the Leases has been
paid, stating whether BNPLC is aware of any default by NAI that may exist under
the Leases and confirming BNPLC's agreements concerning landlord's liens and
other matters set forth in subparagraph 3(C). It being intended that any such
statement by BNPLC may be relied upon by anyone with whom NAI may intend to
enter into an agreement for construction of the Improvements or other
significant agreements concerning the Property.
(E) Limited Representations by BNPLC Concerning Accounting Matters.
BNPLC is not expected or required to represent or warrant that the Leases or
other agreements comprising the Operative Documents will qualify for any
particular accounting treatment under GAAP. However, to permit NAI to determine
for itself the appropriate accounting for the Operative Documents, BNPLC does
represent to NAI the following as of the Effective Date:
(1) Equity capital invested in BNPLC is greater than three
percent (3%) of the aggregate of all lease funding amounts (including
participations) of BNPLC. Such equity capital investments constitute
equity in legal form and are reflected as shareholders' equity in the
financial statements and accounting records of BNPLC.
(2) BNPLC is one hundred percent (100%) owned by French American
Bank Corporation, which is one hundred percent (100%) owned by BNPLC's
Parent.
(3) BNPLC leases properties of substantial value to more than
fifteen tenants.
(4) All parties to whom BNPLC has any material obligations known
to BNPLC are (and are expected to be) Affiliates of BNPLC's Parent,
Participants, or participants with BNPLC in other leasing deals or loans
made by BNPLC, or other tenants or borrowers in such other leasing deals
or loans.
(5) BNPLC has substantial assets in addition to the Property,
assets which BNPLC believes to have a value far in excess of the value
of the Property.
(6) Other than any Funding Advances provided from time to time by
Participants under the Participation Agreement, BNPLC expects to obtain
all Funding Advances from BNP Paribas or other Affiliates of
BNPLC(including Funding Advances to cover Carrying Costs and other
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12
amounts to be capitalized as part of the Outstanding Construction
Allowance, and assuming that NAI uses the Maximum Construction Allowance
under the Construction Management Agreement), and to the extent that BNP
Paribas or such other Affiliates themselves borrow or accept bank
deposits to obtain the funds needed to provide such Funding Advances,
the obligation to repay such funds shall not be limited, by agreement or
corporate structure, to payments collected from NAI or otherwise
recovered from the Property.
(7) BNPLC has not obtained residual value insurance or a residual
value guarantee from any third party to ensure the recovery of its
investment in the Property.
(8) BNPLC does not intend to take any action during the terms of
the Leases that would change, or anticipate any change in, any of the
facts listed above in this subparagraph.
NAI shall have the right to ask BNPLC questions from time to time concerning
BNPLC's financial condition, concerning matters relevant to the proper
accounting treatment of the Leases on NAI's financial statements and accounting
records (including the amount of BNPLC's equity capital as a percentage of the
aggregate of all lease funding amounts [including participations] by BNPLC) or
concerning BNPLC's ability to perform under the Leases or the Purchase
Agreements, to which questions BNPLC shall promptly respond. Such response,
however, may be limited to a statement that BNPLC will not provide requested
information; provided, however, BNPLC must notify NAI in writing if at any time
during the terms of the Leases BNPLC ceases to be 100% owned, directly or
indirectly, by BNP Paribas, or if at any time during the terms of the Leases
BNPLC believes it could not represent that the statements in clauses (1), (5)
and (7) above continue to be accurate, whether because of a change in the
capital structure of BNPLC, a purchase of residual value insurance with respect
to the Property or otherwise.
(F) Other Limited Representations by BNPLC. BNPLC represents that:
(1) No Default or Violation. The execution, delivery and
performance by BNPLC of this Agreement and the other Operative Documents
do not and will not constitute a breach or default under any material
contract or agreement to which BNPLC is a party or by which BNPLC is
bound and do not, to the knowledge of BNPLC, violate or contravene any
law, order, decree, rule or regulation to which BNPLC is subject. (As
used in this subparagraph 3(F), "BNPLC'S KNOWLEDGE" means the present
actual knowledge of ▇▇▇▇▇ ▇▇▇, the current officer of BNPLC having
primary responsibility for the negotiation of the Operative Documents.)
(2) No Suits. There are no judicial or administrative actions,
suits, proceedings or investigations pending or, to BNPLC's knowledge,
threatened against BNPLC that are reasonably likely to affect BNPLC's
interest in the Property or the validity, enforceability or priority of
the Leases or the Purchase Agreements, and BNPLC is not in default with
respect to any order, writ, injunction, decree or demand of any court or
other governmental or regulatory authority that could materially and
adversely affect the business or assets of BNPLC or its interest in the
Property.
(3) Enforceability. The execution, delivery and performance of
each of the Operative Documents by BNPLC are duly authorized, are not in
contravention of or conflict with any term or provision of BNPLC's
articles of incorporation or bylaws and do not, to BNPLC's knowledge,
require the consent or approval of any governmental body or other
regulatory authority that has not heretofore been obtained or conflict
with any Applicable Laws. Each of the Operative Documents are valid,
binding and legally enforceable obligations of BNPLC except as such
enforcement is affected by bankruptcy, insolvency and similar laws
affecting the rights of creditors, generally, and equitable principles
of general application; provided, BNPLC makes no representation or
warranty that conditions imposed by zoning ordinances or other state or
local
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13
Applicable Laws to the purchase, ownership, lease or operation of the
Property have been satisfied.
(4) Organization. BNPLC is duly incorporated and legally
existing under the laws of Delaware and is duly qualified to do business
in the State of California. BNPLC has or will obtain on a timely basis,
at NAI's expense to the extent so provided in the Leases, all requisite
power and all governmental certificates of authority, licenses, permits,
qualifications and other documentation necessary to own and lease the
Property and to perform its obligations under the Operative Documents.
(5) Existence. So long as NAI continues to have rights under the
Leases or Purchase Agreements, BNPLC shall continuously maintain its
existence and, to the extent required to comply with its obligations
under the Operative Documents, its qualification to do business in the
State of California.
(6) Not a Foreign Person. BNPLC is not a "foreign person" within
the meaning of Sections 1445 and 7701 of the Code (i.e., BNPLC is not a
non-resident alien, foreign corporation, foreign partnership, foreign
trust or foreign estate as those terms are defined in the Code and
regulations promulgated thereunder).
(7) Bankruptcy. BNPLC's capital is adequate for the businesses in
which BNPLC is engaged and intends to be engaged. BNPLC has not incurred
(whether hereby or otherwise), nor does BNPLC intend to incur or believe
that it will incur, debts which will be beyond its ability to pay as
such debts mature. There has not been filed by or, to BNPLC's knowledge,
against BNPLC a petition in bankruptcy or a petition or answer seeking
an assignment for the benefit of creditors, the appointment of a
receiver, trustee, custodian or liquidator with respect to BNPLC or any
significant portion of BNPLC's property, reorganization, arrangement,
rearrangement, composition, extension, liquidation or dissolution or
similar relief under the federal Bankruptcy Code or any state law.
(G) Partial Release Provisions. So long as no CMA Termination Event
shall have occurred and no Event of Default shall have occurred and be
continuing, NAI shall have the option from time to time prior to the Designated
Sale Date to purchase or to designate a third party to purchase the Existing
Buildings, Building 6, Building 7 or Building 8, together with a portion of the
Land under and around the building purchased, as determined by BNPLC in its
reasonable discretion (each such building and portion of the Land under and
around it being hereinafter referred to, collectively, as a "RELEASE TARGET"),
provided that NAI shall have satisfied the following terms and conditions:
(1) Before exercising any such option, NAI must have obtained all
requisite governmental approvals for (and recorded) a new plat or map of
the Land, showing the Release Target to be purchased as a separate
platted lot such that it can be sold under Applicable Laws separate and
apart from the rest of the Land, all in a manner satisfactory to BNPLC.
Also, NAI, BNPLC and any other parties with interests in the Property
affected thereby must have agreed upon, entered into and recorded such
reciprocal easements and restrictive covenants relating to any Release
Target to be so sold and the remainder of the Property as BNPLC shall
deem necessary or reasonably required to preserve the utility and value
of the Property remaining after the conveyance. Such easements may
include utility easements, drainage easements, access easements, parking
easements, signage easements and lateral support easements. Such
restrictive covenants may, among other things, prohibit residential uses
and other uses of the Release Target that are reasonably objectionable
to BNPLC, as the record owner of the fee interest in adjacent property,
including any of the following uses:
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14
(a) "headshops"; x-rated theaters; establishments for the sale
of pornographic materials; massage parlors; steam baths; nude
modeling studios or establishments with nude or semi-nude
waiters, waitresses or entertainers; adult bookstores; billiard
rooms; drive-in or drive through restaurants; bowling alleys;
skating rinks; discount stores; second-hand stores; army/navy
type stores; governmental "surplus" stores; wholesale or factory
outlet stores; cooperative stores; and any similar
establishments;
(b) auctions, fire sales, "going out of business" sales, "tent"
sales, bankruptcy sales or outdoor sales of merchandise;
(c) the use of machines or devices (including video games)
operated by insertion of a coin, token, or similar object for
the purpose of amusement;
(d) the use of any of the following advertising audible or
visible outside any building: loudspeakers, music or other
noise-making devices; balloons or flying objects; mechanical or
moving display devices; unusually bright or flashing lights and
similar devices; and
(e) the solicitation of business in the parking or other outside
areas or the distribution of handbills or other advertising
matter in said areas; and
(f) any use that results in objectionable or unpleasant odors of
the type that a prudent owner of a multi-tenant project of
comparable quality and size to the Property would not allow in
its project.
(2)BNPLC and NAI must also have agreed upon the price (the
"PARTIAL RELEASE PRICE") for the Release Target. After the construction
contemplated by the Construction Management Agreement is completed by
NAI as provided therein, the Partial Release Price shall be as set forth
below for the applicable Release Target, unless some casualty,
condemnation or other event has occurred that, in the reasonable
judgment of BNPLC, made the allocations of BNPLC's projected investment
in the Property as set forth below disproportionate to the then
respective fair market values of the various Release Targets.
Release Target Partial Release Price
-------------- ---------------------
Existing Buildings................................................. $ 26,700,000
Building 6......................................................... 32,970,000
Building 7......................................................... 34,700,000
Building 8......................................................... 31,630,000
Total...................................................... $126,000,000
(3)BNPLC and NAI must also have agreed upon appropriate
amendments to the Operative Documents, each in form and substance
satisfactory to BNPLC, that will exclude the Release Target being
purchased from the Property after the date BNPLC conveys the Release
Target. Notwithstanding such exclusion, however, the amendments to the
Operative Documents will expressly preserve for BNPLC and other
Interested Parties the benefits of indemnities given by NAI in the
Operative Documents with respect to the Release Target.
(4)To exercise such option, NAI must deliver notice thereof to
BNPLC not less than ninety days prior to the date upon which NAI intends
to acquire the applicable Release Target, and such notice must describe
(1) the Release Target to be purchased, (2) the date upon which the
Release Target is to be conveyed by BNPLC, (3) the Partial Release Price
that NAI believes will apply, (4) whether the conveyance will be to NAI
or to a third party designated by NAI in such
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notice, and (5) all easements and restrictive covenants that Extremes
proposes to satisfy the conditions of subparagraph (1) above.
(5) In each case, before BNPLC conveys any Release Target to NAI
or a third party designated by NAI, NAI or its designee must have paid
to BNPLC the Partial Release Price for such Release Target and, in
addition to the Partial Release Price, all costs and expenses incurred
by BNPLC in connection with or necessary to consummate the sale,
including all Attorneys' Fees and any transfer taxes that of BNPLC may
be required to pay because of the sale.
If NAI properly exercises its option under this subparagraph and
satisfies or causes the satisfaction of each of the foregoing terms and
conditions, BNPLC shall convey the applicable Release Target to NAI or the third
party designated by NAI pursuant to a quitclaim transfer of all of BNPLC's
right, title and interest therein on as "as is, where is, with all faults" basis
free and clear of the Leases, the Purchase Agreements and any Liens Removable by
BNPLC, but otherwise without recourse, representation or warranty of any kind.
Any Losses incurred by BNPLC because of any action taken pursuant to
this subparagraph 3(G) shall be covered by the indemnification provisions set
forth in subparagraph 5(c) of each of the Leases. Further, for purposes of such
indemnification provisions, any action taken by BNPLC to accomplish a sale as
described in this subparagraph will be deemed to have been made at the request
of NAI if made pursuant to any request of counsel to or any officer of NAI (or
with their knowledge, and without their objection).
4 OBLIGATIONS OF NAI UNDER OTHER OPERATIVE DOCUMENTS NOT LIMITED BY THIS
AGREEMENT. Nothing contained in this Agreement shall limit, modify or otherwise
affect any of NAI's obligations under the other Operative Documents, which
obligations are intended to be separate, independent and in addition to, and not
in lieu of, those established by this Agreement.
5 OBLIGATIONS OF NAI HEREUNDER NOT LIMITED BY OTHER OPERATIVE DOCUMENTS.
Recognizing that but for this Agreement (including the representations of NAI
set forth in Paragraphs 1 and 2) BNPLC would not acquire the Property or enter
into the other Operative Documents, NAI agrees that BNPLC's rights for any
breach of this Agreement (including a breach of such representations) shall not
be limited by any provision of the other Operative Documents that would limit
NAI's liability thereunder, including any provision therein that would limit
NAI's liability in the event of a termination of the Leases or of any of NAI's
rights or obligations under the Purchase Agreements.
6 WAIVER OF JURY TRIAL. BY ITS EXECUTION OF THIS AGREEMENT, EACH OF NAI
AND BNPLC HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THE OPERATIVE DOCUMENTS OR ANY OF
THEM OR ANY OTHER DOCUMENT OR DEALINGS BETWEEN THEM RELATING TO THE PROPERTY.
The scope of this waiver is intended to be all-encompassing of any and all
disputes that may be filed in any court and that relate to the subject matter of
this transaction, including contract claims, tort claims, breach of duty claims,
and all other common law and statutory claims. This waiver is a material
inducement to each of BNPLC and NAI as they enter into a business relationship;
each has already relied on the waiver in entering into the Operative Documents;
and each will continue to rely on the waiver in their related future dealings.
NAI and BNPLC, each having reviewed this waiver with its legal counsel,
knowingly and voluntarily waives its jury trial rights following consultation
with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO EACH OF THE
OPERATIVE DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING
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TO THE PROPERTY. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
7 AMENDMENT AND RESTATEMENT. This Agreement amends, restates and
replaces the Prior Closing Certificate and Agreement.
[The signature pages follow.]
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IN WITNESS WHEREOF, this Closing Certificate and Agreement (Phase IV) is
hereby executed in multiple originals as of the Effective Date above set forth.
"NAI"
NETWORK APPLIANCE, INC.
By:
------------------------------------
Name (print):
-------------------
Title:
--------------------------
18
[Continuation of signature pages to Closing Certificate and Agreement dated to
be effective October 2, 2000]
"BNPLC"
BNP LEASING CORPORATION
By:
------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇, Senior Vice President
19
EXHIBIT A
LEGAL DESCRIPTION
The real property located in the City of Sunnyvale, County of Santa ▇▇▇▇▇, 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 ▇▇▇▇▇ County Records," which Map was filed for record in the Office of the
Recorder of the County of Santa ▇▇▇▇▇, 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: ▇▇▇-▇▇-▇▇▇
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 ▇▇▇▇▇, 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 ▇▇▇▇▇, State of California on July
7, 1994, in Book 657 of Parcel Maps, Page 9.
APN: 110-32-7
ARB: 110-3-x65
-1-
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 ▇▇▇▇▇, State of California on
October 7, 1998, in Book 708 of Parcel Maps, Pages 51 and 52.
APN: ▇▇▇-▇▇-▇▇
ARB: 110-03-65.11
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21
EXHIBIT B
PERMITTED ENCUMBRANCES
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 ▇▇▇▇▇▇▇ 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 : ▇▇▇▇▇▇▇ 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
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 ▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇
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 ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ 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,
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated September 20, 2000, prepared by ▇▇▇▇ &
▇▇▇▇▇▇, Job ▇▇. ▇▇▇▇▇-▇▇.
-▇-
▇▇
▇▇▇▇▇ ▇:
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, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated September 20, 2000, prepared by
▇▇▇▇ & ▇▇▇▇▇▇, 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, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated September 20, 2000, prepared by
▇▇▇▇ & ▇▇▇▇▇▇, Job No. 97208-16.
5. Covenants, Conditions and Restrictions in the Declaration of Protective
Covenants - ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ 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, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated September 20, 2000, prepared by
▇▇▇▇ & ▇▇▇▇▇▇, 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.
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23
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,
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated September 20, 2000, prepared by ▇▇▇▇ &
▇▇▇▇▇▇, 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
Affects : Westerly 5 feet, as shown on a survey plat entitled
ALTA/ACSM Land Title Survey for: Network Appliance, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated September 20, 2000, prepared by
▇▇▇▇ & ▇▇▇▇▇▇, 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, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated September 20, 2000, prepared by
▇▇▇▇ & ▇▇▇▇▇▇, Job No. 97208-16.
5. Covenants, Conditions and Restrictions in the Declaration of Protective
Covenants - ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ 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.
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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, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated September
20, 2000, prepared by ▇▇▇▇ & ▇▇▇▇▇▇, 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, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated September
20, 2000, prepared by ▇▇▇▇ & ▇▇▇▇▇▇, 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, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated September 20, 2000, prepared by
▇▇▇▇ & ▇▇▇▇▇▇, 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, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated September 20,
2000, prepared by ▇▇▇▇ & ▇▇▇▇▇▇, Job No. 97208-16.
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25
EXHIBIT C
DEVELOPMENT DOCUMENTS
--NONE--
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26
EXHIBIT D
NOTICE OF REQUEST FOR ACTION BY BNPLC
BNP Leasing Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇
Re: Closing Certificate and Agreement dated as of October 2, 2000,
between Network Appliance, Inc. and BNP Leasing Corporation
Gentlemen:
Capitalized terms used in this letter are intended to have the meanings
assigned to them in the Closing Certificate and Agreement referenced above.
Pursuant to subparagraph 3(A) of the Closing Certificate and Agreement, NAI
requests the following of BNPLC:
[INSERT HERE A SPECIFIC DESCRIPTION OF THE ACTION REQUESTED - E.G.,
"PLEASE EXECUTE THE ENCLOSED APPLICATION FOR BUILDING PERMIT REQUIRED BY
THE CITY OF SUNNYVALE IN CONNECTION WITH CONSTRUCTION OF CERTAIN
IMPROVEMENTS WHICH ARE PART OF THE INITIAL CONSTRUCTION PROJECT."]
PLEASE NOTE: SUBPARAGRAPH 3(A) OF THE CLOSING CERTIFICATE OBLIGATES BNPLC NOT TO
UNREASONABLY REFUSE TO COMPLY WITH THE FOREGOING REQUEST, SUBJECT TO TERMS AND
CONDITIONS SET FORTH IN THAT SUBPARAGRAPH. NAI HEREBY CERTIFIES TO BNPLC THAT
AFTER CAREFUL CONSIDERATION NAI BELIEVES THAT ALL SUCH TERMS AND CONDITIONS ARE
SATISFIED IN THE CASE OF THE FOREGOING REQUEST, AND NAI HEREBY RATIFIES AND
CONFIRMS ITS OBLIGATION TO INDEMNIFY BNPLC AGAINST ANY LOSSES BNPLC MAY INCUR OR
SUFFER BECAUSE OF ITS COMPLIANCE WITH SUCH REQUEST AS PROVIDED IN SUBPARAGRAPH
5(c) OF THE LEASE.
NAI respectfully requests that BNPLC respond to this notice as soon as
reasonably possible.
Executed this _____ day of ______________, 20___.
NETWORK APPLIANCE, INC.
Name:
------------------------
Title:
------------------------
