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EXHIBIT 10.10
PURCHASE AGREEMENT
(LAND)
BETWEEN
BNP LEASING CORPORATION
("BNPLC")
AND
EXTREME NETWORKS, INC.
("Extreme")
June 1, 2000
(Santa Clara, California)
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TABLE OF CONTENTS
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Page
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1. Extreme's Options and Obligations on the Designated Sale Date........................................ 1
(A) Right to Purchase; Initial Remarketing Rights and Obligations............................... 1
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(B) Determinations Concerning Price............................................................. 3
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(C) Designation of the Purchaser................................................................ 4
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(D) Effect of the Purchase Option and Extreme's Initial Remarketing Rights and Obligations on
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Subsequent Title Encumbrances............................................................... 4
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(E) Security for the Purchase Option and Extreme's Initial Remarketing Rights and Obligations... 4
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(F) Delivery of Books and Records If BNPLC Retains the Property................................. 5
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2. Extreme's Rights and Options After the Designated Sale Date.......................................... 5
(A) Extreme's Extended Right to Remarket........................................................ 5
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(B) Definition of Minimum Extended Remarketing Price............................................ 5
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(C) BNPLC's Right to Sell....................................................................... 6
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(D) Extreme's Right to Excess Sales Proceeds.................................................... 7
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(E) Permitted Transfers During Extreme's Extended Remarketing Period............................ 7
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3. Terms of Conveyance Upon Purchase.................................................................... 7
4. Survival and Termination of the Rights and Obligations of Extreme and BNPLC.......................... 8
(A) Status of this Agreement Generally.......................................................... 8
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(B) Automatic Termination of Extreme's Rights................................................... 8
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(C) Termination of Extreme's Extended Remarketing Rights to Permit a Sale by BNPLC.............. 9
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(D) Payment Only to BNPLC....................................................................... 9
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(E) Remedies Under the Other Operative Documents................................................ 9
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(F) Occupancy by Extreme Prior to Closing of a Sale............................................. 9
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5. Security for Extreme's Obligations; Return of Funds.................................................. 9
6. Certain Remedies Cumulative.......................................................................... 10
7. Attorneys' Fees and Legal Expenses................................................................... 10
8. Estoppel Certificate................................................................................. 10
9. Successors and Assigns............................................................................... 10
[Land]
Exhibits and Schedules
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Exhibit A......................................................Legal Description
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Exhibit B...................Requirements Re: Form of Grant Deed and Ground Lease
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Exhibit C............................................▇▇▇▇ of Sale and Assignment
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Exhibit D..........................................Acknowledgment and Disclaimer
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Exhibit E................................................Secretary's Certificate
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Exhibit F.................................Certificate Concerning Tax Withholding
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[Land]
PURCHASE AGREEMENT
(LAND)
This PURCHASE AGREEMENT (LAND) (this "Agreement") is made and dated as of
June 1, 2000 (the "Effective Date") by and between BNP LEASING CORPORATION, a
Delaware corporation ("BNPLC"), and EXTREME NETWORKS, INC., a California
corporation ("Extreme").
RECITALS
Contemporaneously with the execution of this Agreement, BNPLC and Extreme
are executing a Common Definitions and Provisions Agreement (Land) dated as of
the Effective Date (the "Common Definitions and Provisions Agreement (Land)"),
which by this reference is incorporated into and made a part of this Agreement
for all purposes. As used in this Agreement, capitalized terms defined in the
Common Definitions and Provisions Agreement (Land) and not otherwise defined in
this Agreement are intended to have the respective meanings assigned to them in
the Common Definitions and Provisions Agreement (Land).
Pursuant to the Acquisition Contract, which covers the Land described in
Exhibit A, BNPLC is acquiring the Land and any appurtenances thereto and the
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existing Improvements thereon from Seller contemporaneously with the execution
of this Agreement. Pursuant to the Lease Agreement (Land) executed by BNPLC and
Extreme contemporaneously with this Agreement (the "Land Lease"), BNPLC is
leasing the Land to Extreme. (All of BNPLC's interests, including those created
by the documents delivered at the closing under the Acquisition Contract, in the
Land and in all other real and personal property from time to time covered by
the Land Lease and included within the "Property" as defined therein are
hereinafter collectively referred to as the "Property". The Property does not
include the Improvements, it being understood that the Other Purchase Agreement
constitutes a separate agreement providing for the possible sale of the
Improvements and the appurtenances thereto, and only the Improvements and the
appurtenances thereto, from BNPLC to Extreme or a third party designated by
Extreme.)
Extreme and BNPLC have reached agreement upon the terms and conditions upon
which Extreme will purchase or arrange for the purchase of the Property, and by
this Agreement they desire to evidence such agreement.
AGREEMENTS
1. Extreme's Options and Obligations on the Designated Sale Date.
(A) Right to Purchase; Initial Remarketing Rights and Obligations.
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Whether or not an Event of Default shall have occurred and be continuing or the
Land Lease shall have been terminated, but subject to Paragraph 4 below:
(1) Extreme shall have the right (the "Purchase Option") to
purchase or cause an Affiliate of Extreme 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 Extreme nor an Affiliate of Extreme 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 Extreme shall have the following rights and
obligations (collectively, "Extreme's Initial Remarketing Rights and
Obligations"):
(a) First, Extreme shall have the right (but not the obligation)
to cause an Applicable Purchaser who is not an Affiliate of Extreme 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
Extreme 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, Extreme 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 Extreme 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 Extreme not to exercise its
right to purchase or cause an Applicable Purchaser to purchase from
BNPLC as described above) neither Extreme 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 Extreme shall have the obligation to pay to BNPLC on the
Designated Sale Date a supplemental payment (the "Supplemental Payment")
equal to the lesser of (1) the amount by which the Break Even Price
exceeds such net cash price (if any) actually received by BNPLC on the
Designated Sale Date (such excess being hereinafter called a
"Deficiency") or (2) the Maximum Remarketing Obligation. As used herein,
the "Maximum Remarketing Obligation" means a dollar amount determined in
accordance with the following provisions:
1) The "Maximum Remarketing Obligation" will equal
the product of (i) Stipulated Loss Value on the Designated Sale Date,
times (ii) 100% minus the Residual Risk Percentage, provided that both
of the following conditions are satisfied:
(x) Extreme 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 (Land).
(y) No Event of Default, other than an Issue 97-1
Non-performance-related Subjective Event of Default, shall occur
on or be continuing on the Designated Sale Date.
2) If either of the conditions listed in subparagraph
1) preceding are not satisfied, the "Maximum Remarketing Obligation"
will equal the Break Even Price.
If any Supplemental Payment or other amount payable to BNPLC pursuant to this
subparagraph 1.(A) is not actually paid to BNPLC on the Designated Sale Date,
Extreme shall pay interest on the past due amount computed at the Default Rate
from the Designated Sale Date.
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2
(B) Determinations Concerning Price.
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(1) Determination of the Break Even Price. As used herein,
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"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
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appraisal costs, withholding taxes (if any) not constituting Excluded Taxes, and
Attorneys' Fees) incurred by BNPLC in connection with any sale of BNPLC's
interests in the Property under this Agreement or in connection with collecting
payments due hereunder, but less the aggregate amounts (if any) of Direct
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Payments to Participants and Deposit Taker Losses.
(2) Determination of Third Party Price. The Third Party Price
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required of any Applicable Purchaser purchasing from BNPLC under
subparagraph 1.(A)(2)(a) will be determined as follows:
(a) Extreme 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 Extreme 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 Extreme 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 Extreme, objecting to the Third Party Price so specified by
Extreme. 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 Extreme 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 Extreme 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
selected by 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 (Land), Extreme 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 Extreme pursuant to subparagraph 1(A)(2)(b) or pursuant to
subparagraph 2.(D), then Extreme 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 Extreme, as applicable, and this Agreement shall continue
to
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be effective or shall be reinstated as necessary to permit BNPLC to enforce
its right to collect such amount from Extreme.
(C) Designation of the Purchaser. To give BNPLC the opportunity
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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"), Extreme 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 Extreme set forth in subparagraph 1(A). If for any reason Extreme
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fails to so specify a party who will in accordance with the terms and conditions
set forth herein purchase the Property (be it Extreme itself, an Affiliate of
Extreme 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 Extreme finally does so specify a
party, but such postponement will not relieve or postpone the obligation of
Extreme 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 Extreme's Initial Remarketing
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Rights and Obligations on Subsequent Title Encumbrances. Any conveyance of the
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Property to Extreme or any Applicable Purchaser pursuant to this Paragraph 1.(A)
shall cut off and terminate any interest in the Land or other Property claimed
by, through or under BNPLC, including any interest claimed by the Participants
and including any Liens Removable by BNPLC (such as, but not limited to, any
judgment liens established against the Property because of a judgment rendered
against BNPLC and any leasehold or other interests conveyed by BNPLC in the
ordinary course of BNPLC's business), but not including personal obligations of
Extreme to BNPLC under the Land Lease or other Operative Documents (including
obligations arising under the indemnities therein). Anyone accepting or taking
any interest in the Property by or through BNPLC after the date of this
Agreement shall acquire such interest subject to the Purchase Option and
Extreme's Initial Remarketing Rights and Obligations. Further, Extreme 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 Extreme 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 Extreme 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 Extreme's rights
under this Agreement, including its rights under this subparagraph.
(E) Security for the Purchase Option and Extreme's Initial
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Remarketing Rights and Obligations. To secure BNPLC's obligation to sell the
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Property pursuant to Paragraph 1.(A) and to pay any damages to Extreme 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 Extreme a
lien and security interest against all rights, title and interests of BNPLC from
time to time in and to the Land and other Property. Extreme may enforce such
lien and security interest judicially after any such breach by BNPLC, but not
otherwise. Contemporaneously with the execution of this Agreement, Extreme 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
Extreme shall be entitled to record such memorandum at any time prior to the
Designated Sale Date.
(F) Delivery of Books and Records If BNPLC Retains the Property.
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Unless Extreme or its Affiliate or another Applicable Purchaser purchases the
Property pursuant to Paragraph 1.(A), promptly after the Designated Sale Date
Extreme shall deliver to BNPLC copies of books and records of Extreme which will
be necessary or useful to any future owner's or occupant's use of the Property.
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2. Extreme's Rights and Options after the Designated Sale Date.
(A) Extreme's Extended Right to Remarket. During the two
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years following the Designated Sale Date ("Extreme's Extended Remarketing
Period"), Extreme shall have the right ("Extreme's Extended Remarketing Right")
to cause an Applicable Purchaser who is not an Affiliate of Extreme to purchase
the Property for a cash purchase price not below the Minimum Extended
Remarketing Price (as defined below). Extreme'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 or within the thirty days thereafter as
provided in subparagraph 4.(B).
(2) No Voluntary Retention occurred as described in
subparagraph 1.(A)(2)(a).
(3) Extreme's Extended Remarketing Right shall not
have been terminated pursuant to subparagraph 4.(B) below because of
Extreme's failure to make any Supplemental Payment required on the
Designated Sale Date.
(4) Extreme's Extended Remarketing Right shall not
have been terminated by BNPLC pursuant to subparagraph 4.(C) 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 date upon which
BNPLC is to convey the Property to an Applicable Purchaser because of
Extreme's exercise of Extreme's Extended Remarketing Right (the "Final
Sale Date"), Extreme shall have notified BNPLC of (x) the date
proposed by Extreme 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
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used herein, the "Minimum Extended Remarketing Price" means, subject to
reduction as provided in subparagraph 2.(C) below, an amount equal to the sum of
the following:
(1) the amount by which the Break Even Price computed
on the Designated Sale Date exceeds any Supplemental Payment actually
paid to BNPLC on the Designated Sale Date, together with interest on
such excess computed at the Default Rate from the period commencing on
the Designated Sale Date and ending on the Final Sale Date, plus
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(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
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(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,
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.
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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 Extreme 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 Extreme on or prior to the Final Sale Date, must
include provisions comparable to subparagraphs 5(c)(ii), (iii), (iv) and (v) of
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the Land Lease and otherwise must be in form and substance satisfactory to
BNPLC.
(C) BNPLC's Right to Sell. After the Designated Sale Date, if the
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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 Extreme's Extended Remarketing Rights specified in
subparagraph 2.(A) continue to be satisfied:
(1) BNPLC shall not sell the Property to an Affiliate of BNPLC
on terms less favorable than those which BNPLC would require from a
prospective purchaser not an Affiliate of BNPLC;
(2) If BNPLC receives or desires to make a written proposal
(whether in the form of a "letter of intent" or other nonbinding expression
of interest or in the form of a more definitive purchase and sale
agreement) for a sale of the Property to a prospective purchaser (a "Third
Party Sale Proposal"), and if on the basis of such Third Party Sale
Proposal BNPLC expects to enter into or to pursue negotiations for a
definitive purchase and sale agreement with the prospective purchaser, then
prior to executing any such definitive agreement, BNPLC shall submit the
Third Party Sale Proposal to Extreme 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) Extreme's Extended Remarketing Right may be
terminated pursuant to subparagraph 4.(C) of this Agreement unless Extreme
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.
For a period of ninety days (but only ninety days) after the date of any Third
Party Sale Notice, the Minimum Extended Remarketing Price shall be limited in
amount so that it does not exceed the Third Party Target Price specified by
BNPLC therein. Accordingly, if BNPLC has delivered a Third Party Sale Notice
specifying a Third Party Target Price below the Minimum Extended Remarketing
Price calculated as provided in subparagraph 2.(B) within the ninety days prior
to the Final Sale Date for any sale to an Applicable Purchaser by BNPLC pursuant
to this Paragraph 2, then the Minimum Extended Remarketing Price applicable to
such sale shall be reduced to the amount of the Third Party Target Price so
specified. Such a reduction, however, will apply only to a sale to an Applicable
Purchaser actually consummated within the ninety days after the date of the
applicable Third Party Sale Notice.
(D) Extreme's Right to Excess Sales Proceeds. If the cash price
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actually paid by any third party purchasing the Property from BNPLC during
Extreme'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 (calculated as provided in subparagraph
2.(B), without reduction pursuant to
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subparagraph 2.(C)), then Extreme 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 Extreme to BNPLC under any of the Operative Documents.
(E) Permitted Transfers During Extreme's Extended Remarketing Period.
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Any "Permitted Transfer" described in clause (6) of the definition thereof in
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the Common Definitions and Provisions Agreement (Land) to an Affiliate of BNPLC
or that covers BNPLC's entire interest in the Land will be subject to Extreme's
Extended Remarketing Right if, at the time of the Permitted Transfer, Extreme'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 Extreme'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 Extreme's Extended Remarketing Right, though
following the conveyance of the lesser estate, Extreme's Extended Remarketing
Right may continue to apply to BNPLC's remaining interest in the Land and any
Personal Property.
3 Terms of Conveyance Upon Purchase. As necessary to consummate any sale
of the Property to Extreme or an Applicable Purchaser pursuant to this
Agreement, BNPLC must, subject to any postponement permitted by subparagraph
1.(C), promptly after the tender of the purchase price and any other payments to
BNPLC required pursuant to Paragraph 1 or Paragraph 2, as applicable, convey all
of BNPLC's right, title and interest in the Land and other Property to Extreme
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 Extreme 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 Extreme or an Applicable
Purchaser hereunder shall be the responsibility of the purchaser. The Sale
Closing Documents used to accomplish such conveyance shall consist of the
following: (1) a Corporation Grant Deed in the form attached as Exhibit B-1 or
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Exhibit B-2 or Exhibit B-4, as required by Exhibit B, (2) if required by Exhibit
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B, a Ground Lease in the form attached as Exhibit B-3, which Extreme or the
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Applicable Purchase must execute and return to BNPLC, (3) a ▇▇▇▇ of Sale and
Assignment in the form attached as Exhibit C, (4) an Acknowledgment of
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Disclaimer of Representations and Warranties, in the form attached as Exhibit D,
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which Extreme or the Applicable Purchaser must execute and return to BNPLC, (5)
a Secretary's Certificate in the form attached as Exhibit E, and (6) a
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certificate concerning tax withholding in the form attached as Exhibit F. If for
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any reason BNPLC fails to tender the Sale Closing Documents as required by this
▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ may cure such refusal at any time before thirty days after
receipt of a demand for such cure from Extreme.
4 Survival and Termination of the Rights and Obligations of Extreme and
Bnplc.
(A) Status of this Agreement Generally. Except as expressly provided
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herein, this Agreement shall not terminate; nor shall Extreme have any right to
terminate this Agreement; nor shall Extreme 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 Extreme 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 Extreme will receive
any remaining Escrowed Proceeds yet to be applied as provided in the Land Lease
that may result from such damage if Extreme 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 Extreme will receive any remaining
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Escrowed Proceeds yet to be applied as provided in the Land Lease that may
result from such taking or damage if Extreme purchases the Property and the
Escrowed Proceeds as herein provided), (iii) the prohibition, limitation or
restriction of Extreme's us e of all or any portion of the Property or any
interference with such use by governmental action or otherwise, (iv) any
eviction of Extreme or any party claiming under Extreme by paramount title or
otherwise, (v) Extreme's prior acquisition or ownership of any interest in the
Property, (vi) any default on the part of BNPLC under this Agreement, the Land
Lease or any other agreement to which BNPLC is a party, or (vii) any other
cause, whether similar or dissimilar to the foregoing, any existing or future
law to the contrary notwithstanding. It is the intention of the parties hereto
that the obligations of Extreme hereunder (including the obligation to make any
Supplemental Payment as provided in Paragraph 1) shall be separate and
independent covenants and agreements from BNPLC's obligations under this
Agreement or any other agreement between BNPLC and Extreme; 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 Extreme of any right Extreme may have at law
or in equity to the following remedies, whether because of BNPLC's failure to
remove a Lien Removable by BNPLC or because of any other default by BNPLC under
this Agreement: (i) the recovery of monetary damages, (ii) injunctive relief in
case of the violation, or attempted or threatened violation, by BNPLC of any of
the express covenants, agreements, conditions or provisions of this Agreement
which are binding upon BNPLC, or (iii) a decree compelling performance by BNPLC
of any of the express covenants, agreements, conditions or provisions of this
Agreement which are binding upon BNPLC.
(B) Automatic Termination of Extreme's Rights. Without limiting
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BNPLC's right to enforce Extreme's obligation to pay any Supplemental Payment or
other amounts required by this Agreement, the rights of Extreme (to be
distinguished from the obligations of Extreme) included in Extreme's Initial
Remarketing Rights and Obligations, the Purchase Option and Extreme's Extended
Remarketing Rights shall all terminate automatically if Extreme shall fail to
pay the full amount of any Supplemental Payment required by subparagraph
1.(A)(2)(c) on the Designated Sale Date or if BNPLC shall elect a Voluntary
Retention of the Property as provided in subparagraph 1.(A)(2)(a).
Notwithstanding anything in this subparagraph to the contrary, however, even
after a failure to pay any required Supplemental Payment on the Designated Sale
Date, Extreme 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 Extreme.
(C) Termination of Extreme'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 Extreme as described in subparagraph 2.(C)(2), BNPLC
may terminate Extreme'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 Extreme's Extended Remarketing Rights.
(D) Payment Only to BNPLC. All amounts payable under this Agreement
---------------------
by Extreme 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 Extreme must pay all amounts then due to
BNPLC under the Land Lease or other Operative Documents. This subparagraph shall
not, however, be construed to limit Extreme's right to require the deduction of
Direct Payments to Participants and Deposit Taker Losses in the calculation of
the Break Even Price as provided in subparagraph 1.(B)(1).
[Land] 8
(E) Remedies Under the Other Operative Documents. No repossession of
--------------------------------------------
or re-entering upon the Property or exercise of any other remedies available to
BNPLC under the Land Lease or other Operative Documents shall terminate
Extreme's rights or obligations hereunder, all of which shall survive BNPLC's
exercise of remedies under the other Operative Documents. Extreme acknowledges
that the consideration for this Agreement is separate and independent of the
consideration for the Land Lease and the Closing Certificate, and Extreme's
obligations hereunder shall not be affected or impaired by any event or
circumstance that would excuse Extreme from performance of its obligations under
such other Operative Documents.
(F) Occupancy by Extreme Prior to Closing of a Sale. Prior to the
-----------------------------------------------
closing of any sale of the Property to Extreme or an Applicable Purchaser
hereunder, Extreme's occupancy of the Land and its use of the Property shall
continue to be subject to the terms and conditions of the Land Lease, including
the terms setting forth Extreme's obligation to pay rent, prior to any
termination or expiration of the Land Lease pursuant to its express terms and
conditions.
5 Security for Extreme's Obligations; Return of Funds. Extreme'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 Extreme
of Extreme'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 Extreme breach this
Agreement. If Extreme 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 Extreme, 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 Extreme. 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 Extreme notwithstanding any prior actual or attempted
conveyance or assignment by Extreme, 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
Extreme of any such Collateral returned to Extreme; and any such return of
Collateral to Extreme 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 Extreme 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
Extreme, voluntary or otherwise, of any right to receive the same; BNPLC shall
not be responsible for the proper distribution or application by Extreme or any
Applicable Purchaser of any such Escrowed Proceeds paid over to Extreme or the
Applicable Purchaser; and any such payment of Escrowed Proceeds to Extreme 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.
[Land] 9
7 Attorneys' Fees and Legal Expenses. If either party to this Agreement
commences any legal action or other proceeding to enforce any of the terms of
this Agreement, or because of any breach by the other party or dispute
hereunder, the party prevailing in such action or proceeding shall be entitled
to recover from the other party all Attorneys' Fees incurred in connection
therewith, whether or not such controversy, claim or dispute is prosecuted to a
final judgment. Any such Attorneys' Fees incurred by either party in enforcing a
judgment in its favor under this Agreement shall be recoverable separately from
such judgment, and the obligation for such Attorneys' Fees is intended to be
severable from other provisions of this Agreement and not to be merged into any
such judgment.
8 Estoppel Certificate. Upon request by BNPLC, Extreme 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 Extreme 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 Extreme and BNPLC and their respective
permitted successors and assigns and shall inure to the benefit of Extreme and
BNPLC and all permitted transferees, mortgagees, successors and assignees of
Extreme and BNPLC with respect to the Property; provided, that (A) the rights of
BNPLC hereunder shall not pass to Extreme or any Applicable Purchaser or any
subsequent owner claiming through Extreme or an Applicable Purchaser, (B) BNPLC
shall not assign this Agreement or any rights hereunder except pursuant to a
Permitted Transfer, and (C) Extreme shall not assign this Agreement or any
rights hereunder without the prior written consent of BNPLC.
[Signature pages follow.]
[Land] 10
IN WITNESS WHEREOF, Extreme and BNPLC have caused this Agreement to be
executed as of June 1, 2000.
"Extreme"
EXTREME NETWORKS, INC.
By: ______________________________
Name:_________________________
Title:________________________
[Continuation of signature pages to Purchase Agreement (Land) dated to be
effective June 1, 2000]
"BNPLC"
BNP LEASING CORPORATION
By: ______________________________
▇▇▇▇▇ ▇. ▇▇▇, Vice President
Exhibit A
---------
LEGAL DESCRIPTION
All that certain real property situated in the City of Santa ▇▇▇▇▇, County of
Santa ▇▇▇▇▇, State of California, described as follows:
Being a portion of that certain 24.740 acre parcel as shown on that certain
Record of Survey filed in Book 447 of Maps, at Page 33, Santa ▇▇▇▇▇ County
Records, described as follows:
Beginning at the Northwest corner of said 24.740 acre parcel; thence from said
point of beginning along the Northerly line of said 24.470 acre parcel N. 89
degrees 25 minutes 00 seconds E. 995.17 feet; thence leaving said Northerly
lines S. 0 degrees 10 minutes 00 seconds W. 705.02 feet to a point in the
Southerly line of said 24.740 acre parcel; thence along said Southerly line the
following courses: S. 89 degrees 25 minutes 00 seconds W. 181.82 feet; S. 2.00
feet and S. 89 degrees 25 minutes 00 seconds W. 760.70 feet; thence leaving said
Southerly line along a tangent curve to the right, with a radius of 50.00 feet,
through a central angle of 90 degrees 34 minutes 33 seconds for an arc length of
79.4 feet to a point in the Westerly line of said 24.470 acre parcel; thence
along said Westerly line N. 0 degrees 00 minutes 27 seconds W. 656.49 feet to
the point of beginning.
[Land]
Exhibit B
---------
Requirements Re: Form of Grant Deed and Ground Lease
The form of deed to be used to convey BNPLC's interest in the Land to Extreme or
an Applicable Purchaser will depend upon whether BNPLC's interest in the
Improvements has been or is being conveyed at the same time to the same party.
If BNPLC's interests in both the Land and the Improvements are to be conveyed to
Extreme or an Applicable Purchaser at the same time, because a sale under this
Purchase Agreement and a sale under the Other Purchase Agreement (covering the
Improvements) are being consummated at the same time and to the same party, then
the one deed in form attached as Exhibit B-1 will be used to convey both.
-----------
If, however, a sale of BNPLC's interest in the Improvements pursuant to the
Other Purchase Agreement has not been consummated before, and is not being
consummated contemporaneously with the sale of BNPLC's interest in the Land
under this Agreement, then BNPLC's interest in the Land will be conveyed by a
deed in the from attached as Exhibit B-2, and BNPLC and the grantee under such
-----------
deed shall, as a condition to BNPLC's obligation to deliver the deed, execute
and deliver a Ground Lease covering the Land in the form attached hereto as
Exhibit B-3.
-----------
Finally, BNPLC's interest in the Land will be conveyed by a deed in the from
attached as Exhibit B-4 if BNPLC's interest in the Improvements has been sold
pursuant to the Other Purchase Agreement before a sale of BNPLC's interest in
the Land under this Agreement, or if BNPLC's interest in the Improvements is
being sold contemporaneously with a sale of BNPLC's interest in the Land, but
the purchaser of the Improvements is not the same as the purchaser of the Land.
[Land]
Exhibit B-1
-----------
CORPORATION GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
-------------------------
NAME:[Extreme or the Applicable Purchaser]
ADDRESS: ___________________________
ATTN: ___________________________
CITY: ___________________________
STATE:___________________________
Zip: ___________________________
MAIL TAX STATEMENTS TO:
----------------------
NAME:[Extreme 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
[Extreme or the Applicable Purchaser] ("Grantee") all of Grantor's interest in
the land situated in Santa Clara, 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.
[Land]
BNP LEASING CORPORATING
Date: As of __________ By: ___________________________
Its:
Attest: ___________________________
Its:
[Extreme 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_________________________________
[Land] Exhibit B-1 - Page 2
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____________________________
[Land] Exhibit B-1 - Page 3
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 EXTREME REQUESTS BNPLC'S
CONSENT OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY
SUCH CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING
NOTE" WILL BE DELETED BEFORE THE DEED TO WHICH THIS DESCRIPTION IS ATTACHED IS
ACTUALLY EXECUTED AND DELIVERED.]
All that certain real property situated in the City of Santa ▇▇▇▇▇, County of
Santa ▇▇▇▇▇, State of California, described as follows:
Being a portion of that certain 24.740 acre parcel as shown on that certain
Record of Survey filed in Book 447 of Maps, at Page 33, Santa ▇▇▇▇▇ County
Records, described as follows:
Beginning at the Northwest corner of said 24.740 acre parcel; thence from said
point of beginning along the Northerly line of said 24.470 acre parcel N. 89
degrees 25 minutes 00 seconds E. 995.17 feet; thence leaving said Northerly
lines S. 0 degrees 10 minutes 00 seconds W. 705.02 feet to a point in the
Southerly line of said 24.740 acre parcel; thence along said Southerly line the
following courses: S. 89 degrees 25 minutes 00 seconds W. 181.82 feet; S. 2.00
feet and S. 89 degrees 25 minutes 00 seconds W. 760.70 feet; thence leaving said
Southerly line along a tangent curve to the right, with a radius of 50.00 feet,
through a central angle of 90 degrees 34 minutes 33 seconds for an arc length of
79.4 feet to a point in the Westerly line of said 24.470 acre parcel; thence
along said Westerly line N. 0 degrees 00 minutes 27 seconds W. 656.49 feet to
the point of beginning.
[Land] Exhibit B-1 - Page 4
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 EXTREME'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 (Land) incorporated by reference into the Lease Agreement (Land)
referenced in the last item of the list below), including the following matters
to the extent the same are still valid and in force:
1. TAXES for the fiscal year 2000-2001, a lien not yet due or payable.
2. The lien of supplemental taxes, if any, assessed pursuant to the provisions
of Chapter 3.5, (commencing with Section 75) to the Revenue and Taxation
Code of the State of California.
3. An easement affecting the portion of said land and for the purpose stated
herein and incidental purposes,
In Favor Of: City of Santa ▇▇▇▇▇
For: electric wire overhang purposes
Recorded: November 28, 1960 in Book 4995, Page 160, Official Records
Affects: Northerly 5 feet of said land, and as shown on the survey prepared
by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, L.S. 5944, dated April 27, 2000,
revised May 22, 2000
4. The fact that the ownership of said land does not include any right of
ingress or egress to or from ▇▇▇▇▇▇▇▇ Expressway contiguous thereto, said
right having been relinquished by deed,
From: Jefferson Union Elementary School District of the County of Santa
▇▇▇▇▇
To: County of Santa ▇▇▇▇▇, State of California
Recorded: June 4, 1965 in Book 6982, Page 1, Official Records
Said land, however, abuts on a public street other than the one referred to
above, over which rights of vehicular access have not been relinquished.
5. An Agreement, affecting said land, for the purposes stated herein and
subject to the terms, covenants, conditions, restrictions, and easements,
if any, contained therein
For: Postponed Traffic Signal Improvements
Dated: October 4, 1983
Executed by: City of Santa Clara, California, a municipal corporation
and MPJ, a California partnership
Recorded: November 16, 1983 in Book I 070, Page 333, Official Records.
6. An easement affecting the portion of said land and for the purpose stated
herein and incidental purposes,
In Favor Of: City of Santa ▇▇▇▇▇, a municipal corporation
For: roadway purposes and public utilities
Recorded: November 30, 1983 in Book I 111, Page 606, Official Records
Affects:A portion of that certain 24.740 acre parcel of land as shown on
that certain Record of Survey filed for record in Book 447
of Maps, at page 33, Santa ▇▇▇▇▇ County Records, described
as
[Land] Exhibit B-1 - Page 5
follows:
Beginning at a point in the Northerly line of Monroe Avenue, as shown on
said map at the Westerly terminus of the course shown as N. 89 degrees 25
minutes 00 seconds E. 760.70; thence from said point of beginning along
said Northerly line N. 89 degrees 25 minutes 00 seconds E. 760.70 feet and
N. 2.00 feet; thence leaving said Northerly line along a line parallel with
said course of N. 89 degrees 25 minutes 00 seconds E.; S. 89 degrees 25
minutes 00 seconds W. 334.99 feet; thence leaving said parallel line N. 87
degrees 09 minutes 00 seconds W. 66.79 feet; thence along a line parallel
with said course N. 89 degrees 25 minutes 00 seconds E.; S. 89 degrees 25
minutes 00 seconds W. 359.00 feet; thence leaving said Westerly line along
a tangent curve to the right, with a radius of 50.00 feet, through a
central angle of 90 degrees 34 minutes 33 seconds for an arc length of
79.04 feet to a point of cusp in the Westerly line of said 24.740 acre
parcel; thence along said Westerly line S. 0 degrees 00 minutes 27 seconds
E. 6.00 feet; thence leaving said Westerly line along a tangent curve to
the left, with a radius of 50.00 feet, through a central angle of 90
degrees 34 minutes 33 seconds for an arc length of 79.04 feet to the point
of beginning, and as shown on the survey prepared by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
L.S. 5944, dated April 27, 2000, revised May 22, 2000.
7. An easement affecting the portion of said land and for the purpose stated
herein and incidental purposes,
In Favor Of: City of Santa ▇▇▇▇▇, a municipal corporation
For: underground electrical distribution and/or communication systems
Recorded: May 17, 1984 in Book I 552, Page 595, Official Records
Affects. as follows:
Parcel 1:
Commencing at the point of intersection of the Westerly line of that
certain 24.74 acre parcel of land shown upon that Record of Survey filed
for recorded August 10, 1979 in Book 447 of Maps, at page 33, Santa ▇▇▇▇▇
County Records, with a line parallel with and 10 feet Southerly of,
measured at right angles to, the Northerly line of said parcel; thence
along said parallel line N. 89 degrees 25 minutes 00 seconds E. 107.00
feet; thence parallel with said Westerly line S. 0 degrees 00 minutes 27
seconds E. 319.16 feet; thence S. 34 degrees 02 minutes 45 seconds W. 87.51
feet, more or less, to intersection with a line parallel with and 58 feet
Easterly of measured at right angles to, said Westerly line; thence along
last said parallel line S. 0 degrees 00 minutes 27 seconds E. 294.30 feet,
more or less, to intersection with a line parallel with and 5 feet
Northerly of, measured at right angles to, the Northerly line of that real
property conveyed to the City of Santa ▇▇▇▇▇ by that deed filed for record
November 30, 1983 in Book I 111 of Official Records, at page 606, said
County Records; thence along last said parallel line the following three
(3) courses: N. 89 degrees 25 minutes 00 seconds E. 351.81 feet; S. 87
degrees 09 minutes 00 seconds E. 66.79 feet; N. 89 degrees 25 minutes 00
seconds E. 334.69 feet; thence continuing parallel with the Southerly line
of first said parcel N. 89 degrees 25 minutes 00 seconds E. 181.89 feet,
more or less, to termination in the Easterly line of that certain parcel of
real property conveyed to MPJ Partnership, by that Grant Deed filed for
record August 25, 1983 in Book H 838 of Official Records, at page 215, said
County Records.
Parcel 2:
A portion of said 24.74 acre parcel of land contiguous to and Northerly of
said real property conveyed by deed recorded in Book I 111, at page 606,
contiguous to and Westerly of hereinabove described strip of land and
bounded on the North by a line parallel with and 5 feet Northerly of,
measured at right angles to, that course N. 89 degrees 25 minutes 00
seconds E. 351.81 feet in the hereinabove described centerline.
Parcel 3:
[Land] Exhibit B-1 - Page 6
A strip of land 10 feet in width and 30 feet in length of centerline of
said strip being parallel with and 325.5 feet Southerly of, measured at
right angles to, said Northerly line of the 24.74 acre parcel and
terminating on the West in the Easterly line of first hereinabove described
strip; thence continuing Easterly along last said parallel line for a
distance of 15 feet, as the centerline of a strip of land 15 feet in width,
to termination of said centerline and strip.
Parcel 4:
A strip of land 10 feet in width and 12 feet in length the centerline of
said strip being parallel with and 116.5 feet Southerly of, measured at
right angles to, said Northerly line of the 24.74 acre parcel and
terminating on the West in the Easterly line of first hereinabove described
strip; thence continuing Easterly along last said parallel line for a
distance of 15 feet in width, lying 5 feet Northerly and 10 feet Southerly
of said parallel line to the Easterly terminus of said strip.
Parcel 5:
A strip of land 10 feet in width, the centerline of said strip being
described as follows:
Commencing at the point of intersection of the Northerly line of first
hereinabove described strip of land with a line parallel with and 824.5
feet Easterly of, measured at right angles to, that course in the Westerly
boundary of said 24.75 acre parcel bearing N. 0 degrees 00 minutes 27
seconds W.; thence along last said parallel line N. 0 degrees 00 minutes 27
seconds W. 367.96 feet, more or less, to a line parallel with and 327 feet
Southerly of, measured at right angles to, said Northerly line of the 24.74
acre parcel; thence along last said parallel line S. 89 degrees 25 minutes
00 seconds W. 78 feet to a line parallel with and 746.5 feet Easterly of,
measured at right angles to, said Westerly line of the 24.74 acre parcel;
thence along last said parallel line N. 0 degrees 00 minutes 27 seconds W.
203 feet; thence continuing as the centerline of a strip of land 15 feet in
width N. 0 degrees 00 minutes 27 seconds W. 15 feet, more or less, to
termination of said strip and centerline in a line parallel with and 109
feet Southerly of, measured at right angles to, last said Northerly line.
Parcel 6:
A 15 foot square parcel of land contiguous to and Southerly of last
hereinabove described 10 foot wide strip of land and centered on the
Southerly prolongation of hereinabove mentioned course N. 0 degrees 00
minutes 27 seconds W. 203 feet, and as shown on the survey prepared by
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, L.S. 5944, dated April 27, 2000, revised May 22, 2000.
8. Lease Agreement (Land) dated as of June 1, 2000, by and between BNP Leasing
Corporation, as lessor, and Extreme Networks, Inc., as lessee, and Lease
Agreement (Improvements) dated as of June 1, 2000, by and between BNP
Leasing Corporation, as lessor, and Extreme Networks, Inc., as lessee.
[Land]
Exhibit B-1 - Page 7
Exhibit B-2
-----------
CORPORATION GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
-------------------------
NAME: [Extreme or the Applicable Purchaser]
ADDRESS: _______________________________
ATTN: _______________________________
CITY: _______________________________
STATE:_______________________________
Zip: _______________________________
MAIL TAX STATEMENTS TO:
----------------------
NAME: [Extreme or the Applicable Purchaser]
ADDRESS: _______________________________
ATTN: _______________________________
CITY: _______________________________
STATE:_______________________________
Zip: _______________________________
CORPORATION GRANT DEED
(Covering Land but not the Improvements On the Land)
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, BNP
LEASING CORPORATION, a Delaware corporation ("Grantor"), hereby grants to
[Extreme or the Applicable Purchaser] ("Grantee") all of Grantor's interest in
the land situated in Santa Clara, California, described on Annex A attached
hereto and hereby made a part hereof (the "Land"), together with the any other
right, title and interest of Grantor in and to any easements, rights-of-way,
privileges and other rights appurtenant to the Land; provided, however, that
this grant is subject to the encumbrances described on Annex B (the "Permitted
Encumbrances") and any reservations or qualifications set forth below. Grantee
hereby assumes the obligations (including any personal obligations) of Grantor,
if any, created by or under, and agrees to be bound by the terms and conditions
of, the Permitted Encumbrances to the extent that the same concern or apply to
the Land.
Although this deed conveys Grantor's interest in the Land itself, this deed does
not convey any interest in any buildings or other improvements on the Land
(collectively, "Improvements") or any rights or easements appurtenant to
Improvements. Grantor retains and reserves all right, title and interest of
Grantor in and to Improvements and any rights and easements appurtenant to
Improvements, together with a leasehold estate in and to the Land and any rights
and easements appurtenant to the Land, which leasehold estate will permit the
construction, maintenance and use of Improvements by Grantor and Grantor's
successors and assigns on and subject to the terms and conditions set forth in
the Ground Lease dated of even date herewith, executed by Grantee, as lessor,
and Grantor, as lessee. Reference is made to such Ground Lease, all the terms
and conditions of which are incorporated into this deed as if set forth herein.
[Land]
Exhibit B-2 - Page 2
BNP LEASING CORPORATING
Date: As of __________ By: ___________________________
Its:
Attest: ___________________________
Its:
[Extreme 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____________________
[Land]
Exhibit B-2 - Page 2
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_______________________
[Land]
Exhibit B-2 - Page 3
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 EXTREME REQUESTS BNPLC'S
CONSENT OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY
SUCH CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING
NOTE" WILL BE DELETED BEFORE THE DEED TO WHICH THIS DESCRIPTION IS ATTACHED IS
ACTUALLY EXECUTED AND DELIVERED.]
All that certain real property situated in the City of Santa ▇▇▇▇▇, County of
Santa ▇▇▇▇▇, State of California, described as follows:
Being a portion of that certain 24.740 acre parcel as shown on that certain
Record of Survey filed in Book 447 of Maps, at Page 33, Santa ▇▇▇▇▇ County
Records, described as follows:
Beginning at the Northwest corner of said 24.740 acre parcel; thence from said
point of beginning along the Northerly line of said 24.470 acre parcel N. 89
degrees 25 minutes 00 seconds E. 995.17 feet; thence leaving said Northerly
lines S. 0 degrees 10 minutes 00 seconds W. 705.02 feet to a point in the
Southerly line of said 24.740 acre parcel; thence along said Southerly line the
following courses: S. 89 degrees 25 minutes 00 seconds W. 181.82 feet; S. 2.00
feet and S. 89 degrees 25 minutes 00 seconds W. 760.70 feet; thence leaving said
Southerly line along a tangent curve to the right, with a radius of 50.00 feet,
through a central angle of 90 degrees 34 minutes 33 seconds for an arc length of
79.4 feet to a point in the Westerly line of said 24.470 acre parcel; thence
along said Westerly line N. 0 degrees 00 minutes 27 seconds W. 656.49 feet to
the point of beginning.
[Land]
Exhibit B-2 - Page 4
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 EXTREME'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 (Land) incorporated by reference into the Lease Agreement (Land)
referenced in the last item of the list below), including the following matters
to the extent the same are still valid and in force:
1. TAXES for the fiscal year 2000-2001, a lien not yet due or payable.
2. The lien of supplemental taxes, if any, assessed pursuant to the provisions
of Chapter 3.5, (commencing with Section 75) to the Revenue and Taxation
Code of the State of California.
3. An easement affecting the portion of said land and for the purpose stated
herein and incidental purposes,
In Favor Of: City of Santa ▇▇▇▇▇
For: electric wire overhang purposes
Recorded: November 28, 1960 in Book 4995, Page 160, Official Records
Affects: Northerly 5 feet of said land, and as shown on the survey prepared
by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, L.S. 5944, dated April 27, 2000,
revised May 22, 2000
4. The fact that the ownership of said land does not include any right of
ingress or egress to or from ▇▇▇▇▇▇▇▇ Expressway contiguous thereto, said
right having been relinquished by deed,
From: Jefferson Union Elementary School District of the County of Santa
▇▇▇▇▇
To: County of Santa ▇▇▇▇▇, State of California
Recorded: June 4, 1965 in Book 6982, Page 1, Official Records
Said land, however, abuts on a public street other than the one referred to
above, over which rights of vehicular access have not been relinquished.
5. An Agreement, affecting said land, for the purposes stated herein and
subject to the terms, covenants, conditions, restrictions, and easements,
if any, contained therein
For: Postponed Traffic Signal Improvements
Dated: October 4, 1983
Executed by: City of Santa Clara, California, a municipal corporation and
MPJ, a California partnership
Recorded: November 16, 1983 in Book I 070, Page 333, Official Records.
6. An easement affecting the portion of said land and for the purpose stated
herein and incidental purposes,
In Favor Of: City of Santa ▇▇▇▇▇, a municipal corporation
For: roadway purposes and public utilities
Recorded: November 30, 1983 in Book I 111, Page 606, Official Records
Affects: A portion of that certain 24.740 acre parcel of land as shown on
that certain Record of Survey filed for record in Book 447
of Maps, at page 33, Santa ▇▇▇▇▇ County Records, described
as
[Land]
Exhibit B-2 - Page 5
follows:
Beginning at a point in the Northerly line of Monroe Avenue, as shown on
said map at the Westerly terminus of the course shown as N. 89 degrees 25
minutes 00 seconds E. 760.70; thence from said point of beginning along
said Northerly line N. 89 degrees 25 minutes 00 seconds E. 760.70 feet and
N. 2.00 feet; thence leaving said Northerly line along a line parallel with
said course of N. 89 degrees 25 minutes 00 seconds E.; S. 89 degrees 25
minutes 00 seconds W. 334.99 feet; thence leaving said parallel line N. 87
degrees 09 minutes 00 seconds W. 66.79 feet; thence along a line parallel
with said course N. 89 degrees 25 minutes 00 seconds E.; S. 89 degrees 25
minutes 00 seconds W. 359.00 feet; thence leaving said Westerly line along
a tangent curve to the right, with a radius of 50.00 feet, through a
central angle of 90 degrees 34 minutes 33 seconds for an arc length of
79.04 feet to a point of cusp in the Westerly line of said 24.740 acre
parcel; thence along said Westerly line S. 0 degrees 00 minutes 27 seconds
E. 6.00 feet; thence leaving said Westerly line along a tangent curve to
the left, with a radius of 50.00 feet, through a central angle of 90
degrees 34 minutes 33 seconds for an arc length of 79.04 feet to the point
of beginning, and as shown on the survey prepared by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
L.S. 5944, dated April 27, 2000, revised May 22, 2000.
7. An easement affecting the portion of said land and for the purpose stated
herein and incidental purposes,
In Favor Of: City of Santa ▇▇▇▇▇, a municipal corporation
For: underground electrical distribution and/or communication systems
Recorded: May 17, 1984 in Book I 552, Page 595, Official Records
Affects. as follows:
Parcel 1:
Commencing at the point of intersection of the Westerly line of that
certain 24.74 acre parcel of land shown upon that Record of Survey filed
for recorded August 10, 1979 in Book 447 of Maps, at page 33, Santa ▇▇▇▇▇
County Records, with a line parallel with and 10 feet Southerly of,
measured at right angles to, the Northerly line of said parcel; thence
along said parallel line N. 89 degrees 25 minutes 00 seconds E. 107.00
feet; thence parallel with said Westerly line S. 0 degrees 00 minutes 27
seconds E. 319.16 feet; thence S. 34 degrees 02 minutes 45 seconds W. 87.51
feet, more or less, to intersection with a line parallel with and 58 feet
Easterly of measured at right angles to, said Westerly line; thence along
last said parallel line S. 0 degrees 00 minutes 27 seconds E. 294.30 feet,
more or less, to intersection with a line parallel with and 5 feet
Northerly of, measured at right angles to, the Northerly line of that real
property conveyed to the City of Santa ▇▇▇▇▇ by that deed filed for record
November 30, 1983 in Book I 111 of Official Records, at page 606, said
County Records; thence along last said parallel line the following three
(3) courses: N. 89 degrees 25 minutes 00 seconds E. 351.81 feet; S. 87
degrees 09 minutes 00 seconds E. 66.79 feet; N. 89 degrees 25 minutes 00
seconds E. 334.69 feet; thence continuing parallel with the Southerly line
of first said parcel N. 89 degrees 25 minutes 00 seconds E. 181.89 feet,
more or less, to termination in the Easterly line of that certain parcel of
real property conveyed to MPJ Partnership, by that Grant Deed filed for
record August 25, 1983 in Book H 838 of Official Records, at page 215, said
County Records.
Parcel 2:
A portion of said 24.74 acre parcel of land contiguous to and Northerly of
said real property conveyed by deed recorded in Book I 111, at page 606,
contiguous to and Westerly of hereinabove described strip of land and
bounded on the North by a line parallel with and 5 feet Northerly of,
measured at right angles to, that course N. 89 degrees 25 minutes 00
seconds E. 351.81 feet in the hereinabove described centerline.
Parcel 3:
[Land]
Exhibit B-2 - Page 6
A strip of land 10 feet in width and 30 feet in length of centerline of
said strip being parallel with and 325.5 feet Southerly of, measured at
right angles to, said Northerly line of the 24.74 acre parcel and
terminating on the West in the Easterly line of first hereinabove described
strip; thence continuing Easterly along last said parallel line for a
distance of 15 feet, as the centerline of a strip of land 15 feet in width,
to termination of said centerline and strip.
Parcel 4:
A strip of land 10 feet in width and 12 feet in length the centerline of
said strip being parallel with and 116.5 feet Southerly of, measured at
right angles to, said Northerly line of the 24.74 acre parcel and
terminating on the West in the Easterly line of first hereinabove described
strip; thence continuing Easterly along last said parallel line for a
distance of 15 feet in width, lying 5 feet Northerly and 10 feet Southerly
of said parallel line to the Easterly terminus of said strip.
Parcel 5:
A strip of land 10 feet in width, the centerline of said strip being
described as follows:
Commencing at the point of intersection of the Northerly line of first
hereinabove described strip of land with a line parallel with and 824.5
feet Easterly of, measured at right angles to, that course in the Westerly
boundary of said 24.75 acre parcel bearing N. 0 degrees 00 minutes 27
seconds W.; thence along last said parallel line N. 0 degrees 00 minutes 27
seconds W. 367.96 feet, more or less, to a line parallel with and 327 feet
Southerly of, measured at right angles to, said Northerly line of the 24.74
acre parcel; thence along last said parallel line S. 89 degrees 25 minutes
00 seconds W. 78 feet to a line parallel with and 746.5 feet Easterly of,
measured at right angles to, said Westerly line of the 24.74 acre parcel;
thence along last said parallel line N. 0 degrees 00 minutes 27 seconds W.
203 feet; thence continuing as the centerline of a strip of land 15 feet in
width N. 0 degrees 00 minutes 27 seconds W. 15 feet, more or less, to
termination of said strip and centerline in a line parallel with and 109
feet Southerly of, measured at right angles to, last said Northerly line.
Parcel 6:
A 15 foot square parcel of land contiguous to and Southerly of last
hereinabove described 10 foot wide strip of land and centered on the
Southerly prolongation of hereinabove mentioned course N. 0 degrees 00
minutes 27 seconds W. 203 feet, and as shown on the survey prepared by
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, L.S. 5944, dated April 27, 2000, revised May 22, 2000.
8. Lease Agreement (Land) dated as of June 1, 2000, by and between BNP Leasing
Corporation, as lessor, and Extreme Networks, Inc., as lessee, and Lease
Agreement (Improvements) dated as of June 1, by and between BNP Leasing
Corporation, as lessor, and Extreme Networks, Inc., as lessee.
[Land]
Exhibit B-2 - Page 7
Exhibit B-3
-----------
GROUND LEASE
This GROUND LEASE (this "Ground Lease"), by and between BNP LEASING
CORPORATION, a Delaware corporation ("BNPLC"), whose address is ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and [Extreme or the Applicable Purchaser],
a ___________ ("Lessor"), whose address is ____________________. as of
____________, ____ (the "GL Effective Date").
RECITALS
This Ground Lease is being executed pursuant to a Purchase Agreement (Land)
dated as of June 1, 2000 (the "Purchase Agreement"), between BNP Leasing
Corporation and Extreme Networks, Inc., covering the land described in Annex 1
-------
attached hereto (the "Land"). Incorporated by reference into the Purchase
Agreement is a Common Definitions and Provisions Agreement (Land) dated as of
the effective date of the Purchase Agreement (the "CDPA"), between BNP Leasing
Corporation and Extreme Networks, Inc. The CDPA is hereby incorporated into and
made a part of this Ground Lease for all purposes. Capitalized terms defined in
the CDPA and used but not otherwise defined herein are intended in this Ground
Lease to have the respective meanings ascribed to them in the CDPA. The
provisions in Article II of the CDPA are intended to apply to this Ground Lease
as if set forth herein and as if this Ground Lease were one of the "Operative
Documents" as defined therein.
Lessor and BNPLC have reached agreement as to the terms and conditions upon
which Lessor is willing to lease the Land described in Annex 1 to BNPLC for a
-------
term of approximately just less that 35 years, and by this Ground Lease Lessor
and BNPLC desire to evidence such agreement.
GRANTING CLAUSES
NOW, THEREFORE, in consideration of the rent to be paid and the covenants
and agreements to be performed by BNPLC, as hereinafter set forth, Lessor does
hereby LEASE, DEMISE and LET unto BNPLC for the term hereinafter set forth the
Land, together with:
(1 all easements and rights-of-way now owned or hereafter acquired
by Lessor for use in connection with the Land or as a means of access
thereto; and
(2 all right, title and interest of Lessor, now owned or hereafter
acquired, in and to (A) any land lying within the right-of-way of any
street, open or proposed, adjoining the Land, (B) any and all sidewalks and
alleys adjacent to the Land and (C) any strips and gores between the Land
and any abutting land not owned by Lessor.
The Land and all of the property described in the preceding clauses (1) and (2)
are hereinafter referred to collectively as the "Real Property".
To the extent, but only to the extent, that assignable rights or interests
in, to or under the following have been or will be acquired by Lessor as the
owner of any interest in the Real Property, Lessor also hereby grants and
assigns to BNPLC for the term of this Ground Lease (and thereafter, if BNPLC
purchases the Real Property from
[Land]
Lessor pursuant to the Repurchase Option described in Paragraph 12) the right to
use and enjoy (and, in the case of contract rights, to enforce) such rights or
interests of Lessor:
(a) the Permitted Encumbrances; and
(b) any general intangibles, permits, licenses, franchises,
certificates, and other rights and privileges related to the Real Property
that BNPLC (rather than Lessor) would have acquired if BNPLC had itself
acquired the fee estate in the Real Property (excluding, however, any
rights and privileges of Lessor under this Ground Lease, any rights or
privileges of Lessor under the Purchase Agreement or other Operative
Documents, and [without limiting Lessor's obligations under subparagraphs
4.(B), 6.(B) or 6.(C)] any rights and privileges of Lessor under the
Development Documents described in Annex 3).
-------
Such rights and interests of Lessor, whether now existing or hereafter arising,
are hereinafter collectively called the "GL Personal Property". The Real
Property and the GL Personal Property are hereinafter sometimes collectively
called the "GL Property."
Provided, however, the leasehold estate conveyed hereby and BNPLC's rights
hereunder are expressly made subject and subordinate to the Permitted
Encumbrances, including those listed on Annex 2. FURTHER, IF AND SO LONG AS THE
-------
OTHER LEASE AGREEMENT AND THE OTHER PURCHASE AGREEMENT (BOTH AS DEFINED IN THE
- - - - - -
CDPA) REMAIN IN FORCE, THE RIGHTS AND OBLIGATIONS OF LESSOR AND BNPLC HEREUNDER
---- - -----
SHALL BE SUBJECT TO ANY CONTRARY PROVISIONS THEREIN. ACCORDINGLY, BNPLC'S RIGHTS
-----
UNDER PARAGRAPH 7 BELOW SHALL BE SUBJECT TO THE PROVISIONS GOVERNING INSURANCE
AND CONDEMNATION IN THE OTHER LEASE AGREEMENT, IF AND SO LONG AS THE OTHER LEASE
- - - - -
AGREEMENT REMAINS IN FORCE.
-
GENERAL TERMS AND CONDITIONS
The GL Property is leased by Lessor to BNPLC and is accepted and is to be
used and possessed by BNPLC upon and subject to the following terms and
conditions:
1. Ground Lease Term and Early Termination by BNPLC. The term of this
Ground Lease (the "Ground Lease Term") shall commence on and include the GL
Effective Date and end on last Business Day prior to the thirty-fifth
anniversary of the GL Effective Date. However, subject to the prior approval of
any Leasehold Mortgagee, BNPLC shall have the right to terminate this Ground
Lease by giving a notice to Lessor stating that BNPLC unequivocally elects to
terminate effective as of a date specified in such notice, which may be any date
more than thirty days after the notice and after the expiration or termination
of the Lease pursuant to its terms.
2. No Other Ground Lease Termination. Except as expressly provided
herein, this Ground Lease shall not terminate, nor shall Lessor have any right
to terminate this Ground Lease, nor shall the obligations of Lessor under this
Ground Lease be excused, for any reason whatsoever, including any of the
following: (i) any damage to or the destruction of all or any part of the GL
Property from whatever cause, (ii) the taking of the GL Property or any portion
thereof by eminent domain or otherwise for any reason, (iii) any default on the
part of BNPLC under this Ground Lease or under any other agreement to which
Lessor and BNPLC are parties, or (iv) any other cause whether similar or
dissimilar to the foregoing, any existing or future law to the contrary
notwithstanding. It is the intention of the parties hereto that the obligations
of Lessor hereunder shall be separate and independent of the covenants and
agreements of BNPLC. However, nothing in this Paragraph shall be construed as a
waiver by Lessor of any right Lessor may have at law or in equity to recover
monetary damages for any default under this Ground Lease by BNPLC.
[Land]
Exhibit B-3 - Page 2
3. Ground Lease Rent. On each anniversary of the GL Effective Date,
BNPLC shall make a payment to Lessor of rent for the then preceding year
("Ground Lease Rent"), in currency that at the time of payment is legal tender
for public and private debts in the United States of America. Each such payment
of Ground Lease Rent shall equal the Fair Rental Value, determined as provided
in Annex 4.
-------
4. Use of GL Property.
(A0 Permitted Uses and Construction of Improvements. Subject
-----------------------------------------------
to the Permitted Encumbrances and the terms hereof, BNPLC may use and occupy the
GL Property for any purpose permitted by Applicable Laws and may construct,
maintain and use any Improvements on the Land which are permitted by Applicable
Laws.
(B0 Cooperation by Lessor and its Affiliates.
----------------------------------------
(1 After the expiration or any earlier termination of the Lease, if
a use of the GL Property by BNPLC or any new Improvements or any removal or
modification of Improvements proposed by BNPLC would violate any Permitted
Encumbrance, Development Document or Applicable Law unless Lessor or any of
its Affiliates, as an owner of adjacent property or otherwise, gave its
consent or approval thereto or agreed to join in a modification of a
Permitted Encumbrance or Development Document, then Lessor shall give and
cause its Affiliates to give such consent or approval or join in such
modification.
(2 To the extent, if any, that any Permitted Encumbrance,
Development Document or Applicable Law requires the consent or approval of
Lessor or any of its Affiliates or of the City of Santa ▇▇▇▇▇ or any other
Person to an assignment of this Ground Lease or a transfer of any interest
in the GL Property by BNPLC or its successors or assigns, Lessor will
without charge give and cause its Affiliates to give such consent or
approval and will cooperate in any way reasonably requested by BNPLC to
assist BNPLC to obtain such consent or approval from the City or any other
Person; provided, however, the assignment or transfer is not then
prohibited by the Lease.
(3 Lessor's obligations under this subparagraph 4.(B) shall be
binding upon any successor or assign of Lessor with respect to the Land and
other properties encumbered by the Permitted Encumbrances or subject to the
Development Documents, and such obligations shall survive any sale of
Lessor's interest in the GL Property to BNPLC because of BNPLC's exercise
of the Repurchase Option (as defined in Paragraph 12).
(C0 Title to Improvements. Any and all Improvements of whatever
---------------------
nature at any time constructed, placed or maintained upon any part of the Land
shall be and remain the property of BNPLC and BNPLC's sublessee's, assignees,
licensees and concessionaires, as their interests may appear; provided, any such
Improvements which remain on the Land when this Ground Lease expires or is
terminated shall become and thereupon be the property of Lessor, free and clear
of any Liens Removable by BNPLC. It is the intention of Lessor and BNPLC that
severance of fee title to the Land and the Improvements shall not change the
character of the Improvements as real property. BNPLC may at any time after
Lessor ceases to have possession of the GL Property as tenant under the Lease
and prior to the expiration or termination of this Ground Lease remove all or
any Improvements from the Land without the consent of Lessor and without any
obligation to Lessor or its Affiliates to provide compensation or to construct
other Improvements on or about the Land.
5. Assignment and Subletting; Pass Through of BNPLC'S Liability
Insurance and Indemnity Rights. BNPLC may sublet or assign this Ground Lease
without the consent of Lessor or any of its Affiliates, subject only to
limitations set forth in the Lease for the benefit of Lessor so long as those
limitations
[Land]
Exhibit B-3 - Page 3
remain in force.
To the extent that BNPLC may from time to time after the expiration or
earlier termination of the Other Lease Agreement require any subtenant to agree
to maintain liability insurance against claims of third parties and agree to
make BNPLC an additional or named insured under such insurance, BNPLC shall also
require the subtenant to agree to make Lessor an additional or named insured.
However, BNPLC shall have no liability to Lessor for a breach by the subtenant
of any such agreements, and to the extent that BNPLC's rights as an additional
or named insured are subject to exceptions or limitations concerning BNPLC's own
acts or omissions or the acts or omissions of anyone other than the subtenant,
so too may Lessor's rights as an additional or named insured be subject to
exceptions or limitations concerning Lessor's own acts or omissions or the acts
or omissions of anyone other than the subtenant.
To the extent that BNPLC may itself from time to time after the expiration
or earlier termination of the Other Lease Agreement maintain liability insurance
against claims of third parties which may arise because of any occurrence on or
alleged to have occurred on or about the GL Property, BNPLC shall cause Lessor
to be an additional or named insured under such insurance, provided Lessor pays
or reimburses BNPLC for any additional insurance premium required to have Lessor
made an insured.
To the extent that BNPLC may from time to time after the expiration or
earlier termination of the Other Lease Agreement require any subtenant to agree
to indemnify BNPLC against Environmental Losses or other Losses concerning the
GL Property, BNPLC shall also require the subtenant to agree to indemnify
Lessor. However, BNPLC shall have no liability to Lessor for a breach by the
subtenant of any such agreement, and to the extent that BNPLC's rights as an
indemnitee of the subtenant are subject to exceptions or limitations concerning
BNPLC's own acts or omissions or the acts or omissions of anyone other than the
subtenant, so too may Lessor's rights as an indemnitee be subject to exceptions
or limitations concerning Lessor's own acts or omissions or the acts or
omissions of anyone other than the subtenant.
6. Representations, Warranties and Covenants of Lessor Concerning the
Property. Lessor represents, warrants and covenants as follows:
(A0 Title to the Property. This Ground Lease shall vest in BNPLC good
---------------------
and marketable title to a leasehold estate in the Land, subject only to the
terms and conditions hereof, the Permitted Encumbrances, the Development
Documents and any Liens Removable by BNPLC. Lessor shall not, without the prior
consent of BNPLC, create, place or authorize, or through any act or failure to
act, acquiesce in the placing of, any deed of trust, mortgage or other Lien,
whether statutory, constitutional or contractual against or covering the GL
Property or any part thereof (other than Permitted Encumbrances and Liens
Removable by BNPLC), regardless of whether the same are expressly or otherwise
subordinate to the Operative Documents or BNPLC's interest in the Property.
(B0 Modification of Permitted Encumbrances and Development Documents.
----------------------------------------------------------------
Without the prior consent of BNPLC, Lessor shall not enter into, initiate,
approve or consent to any modification of any Permitted Encumbrance or
Development Document that would create or expand or purport to create or expand
obligations or restrictions which would encumber the GL Property or any
improvements constructed thereon.
(C0 Performance and Preservation of the Development Documents and
-------------------------------------------------------------
Permitted Encumbrances for the Benefit of BNPLC. Not only during the term of the
-----------------------------------------------
Other Lease Agreement, but thereafter throughout the term of this Ground Lease,
Lessor shall comply with and perform the obligations imposed by the Permitted
Encumbrances and the Development Documents upon Lessor or upon any owner of the
Land, and shall do whatever is required to preserve the rights and benefits
conferred or intended to be conferred by the Permitted Encumbrances and the
Development Documents, as necessary to facilitate any construction contemplated
in the Other Lease Agreement and the use of the Improvements by BNPLC and its
successors, assigns and subtenants under this Ground Lease after the expiration
or any earlier termination of the Other Lease Agreement. Further, if
[Land]
Exhibit B-3 - Page 4
Lessor or any Affiliate of Lessor now or hereafter owns, acquires or leases land
(other than the Land) that is the subject of a Permitted Encumbrance or
Development Document, then Lessor shall, and shall cause its Affiliate to,
assume liability for and indemnify BNPLC and other Interested Parties and defend
and hold them harmless from and against all Losses (including Losses caused by
any decline in the value of the Property or of the Improvements) that they would
not have incurred or suffered but for (i) a termination of such Permitted
Encumbrance or Development Document, to which Lessor or its Affiliate agreed, or
which resulted from a breach thereof by Lessor or its Affiliate, or (ii) a
refusal of Lessor or its Affiliate to agree to any waiver or modification
requested by BNPLC of restrictions upon the Property or the transfer thereof
imposed by such Permitted Encumbrance or Development Document, or (iii) anything
done, authorized or suffered by Lessor or its Affiliate in violation of such
Permitted Encumbrance or Development Document. Lessor's obligations under this
subparagraph 6.(C) shall be binding upon any successor or assign of Lessor or
its Affiliates with respect to their interest in properties subject to the
Development Documents and Permitted Encumbrances.
7. Insurance and Condemnation.
(A0 Entitlement to Insurance and Condemnation Proceeds. All
--------------------------------------------------
insurance and condemnation proceeds payable with respect to any damage to or
taking of the GL Property shall be payable to and become the property of BNPLC;
provided, however, Lessor shall be entitled to receive condemnation proceeds
awarded for the value of Lessor's remainder interest in the Land exclusive of
the Improvements. BNPLC is authorized to take all action necessary on behalf of
both BNPLC and Lessor (as lessor under this Ground Lease) to collect insurance
and condemnation proceeds.
(B0 Collection of Insurance Proceeds. In the event any of the GL
--------------------------------
Property is destroyed or damaged by fire, explosion, windstorm, hail or by any
other casualty against which insurance shall have been required hereunder, (i)
BNPLC may make proof of loss, (ii) each insurance company concerned is hereby
authorized and directed to make payment for such loss directly to BNPLC for
application as required by subparagraph 7.(A), and (iii) BNPLC's consent must be
obtained for any settlement, adjustment or compromise of any claims for loss,
damage or destruction under any policy or policies of insurance.
(C0 Collection of Condemnation Proceeds. All proceeds of
-----------------------------------
condemnation awards or proceeds of sale in lieu of condemnation with respect to
the GL Property and all judgments, decrees and awards for injury or damage to
the GL Property shall be paid to BNPLC and applied as provided in subparagraph
7.(A) above. BNPLC is hereby authorized, in the name of Lessor, to execute and
deliver valid acquittances for, and to appeal from, any such judgment, decree or
award concerning condemnation of any of the GL Property. BNPLC shall not be, in
any event or circumstances, liable or responsible for failure to collect, or to
exercise diligence in the collection of, any such proceeds, judgments, decrees
or awards.
8. Leasehold Mortgages.
(A0 By Leasehold Mortgage BNPLC may encumber BNPLC's leasehold
estate in the GL Property created by this Ground Lease, as well as BNPLC's
rights and interests in buildings, fixtures, equipment and Improvements situated
on the Land and rents, issues, profits, revenues and other income to be derived
by BNPLC therefrom.
(B0 Any Leasehold Mortgagee or other party, including any
corporation formed by a Leasehold Mortgagee, may become the legal owner of the
leasehold estate created by this Ground Lease, and of the Improvements,
equipment, fixtures and other property assigned as additional security pursuant
to a Leasehold Mortgage, by foreclosure of a Leasehold Mortgage or as a result
of the assignment or conveyance in lieu of foreclosure. Further, any such
Leasehold Mortgagee or other party may itself, after becoming the legal owner
and holder of the leasehold estate created by this Ground Lease, or of any
Improvements, equipment, fixtures and other
Exhibit B-3 - Page 5
[Land]
property assigned as additional security pursuant to a Leasehold Mortgage,
convey or pledge the same without the consent of Lessor.
(C0 Lessor shall serve notice of any default by BNPLC hereunder
upon any Leasehold Mortgagee. No notice of a default by BNPLC shall be deemed
effective until it is so served. Any Leasehold Mortgagee shall have the right to
correct or cure any such default within the same period of time after receipt of
such notice as is given to BNPLC under this Ground Lease to correct or cure
defaults, plus an additional period of thirty days thereafter. Lessor will
accept performance by any Leasehold Mortgagee of any covenant, condition or
agreement on BNPLC's part to be performed hereunder with the same force and
effect as though performed by BNPLC.
(D0 If this Ground Lease should terminate by reason of a
disaffirmance or rejection of this Ground Lease by BNPLC or any receiver,
liquidator or trustee for the property of BNPLC, or by any governmental
authority which had taken possession of the business or property of BNPLC by
reason of the insolvency or alleged insolvency of BNPLC, then:
(1 Lessor shall give notice thereof to each Leasehold
Mortgagee; and upon request of any Leasehold Mortgagee made within
sixty days after Lessor has given such notice, Lessor shall enter into
a new ground lease of the GL Property with such Leasehold Mortgagee
for the remainder of the Ground Lease Term, at the same Ground Lease
Rent and on the same terms and conditions as contained in this Ground
Lease.
(2 The estate of the Leasehold Mortgagee, as lessee under
the new lease, shall have priority equal to the estate of BNPLC
hereunder. That is, there shall be no charge, lien or burden upon the
GL Property prior to or superior to the estate granted by such new
lease which was not prior to or superior to the estate of BNPLC under
this Ground Lease as of the date immediately preceding the termination
of this Ground Lease.
(3 Notwithstanding the foregoing, if Lessor shall receive
requests to enter into a new ground lease from more than one Leasehold
Mortgagee, Lessor shall be required to enter into only one new ground
lease, and the new ground lease shall be to the requesting Leasehold
Mortgagee who holds the highest priority lien or interest in BNPLC's
leasehold estate in the Land. If the liens or security interests of
two or more such requesting Leasehold Mortgagees which shared the
highest priority just prior to the termination of this Ground Lease,
the new ground lease shall name all such Leasehold Mortgagees as co-
tenants thereunder.
(E0 If BNPLC has agreed with any Leasehold Mortgagee that such
Leasehold Mortgagee's consent will be required to any modification or early
termination of this Ground Lease by BNPLC, and if Lessor has been notified of
such agreement, such consent will be required.
(F0 No Leasehold Mortgagee will assume any liability under this
Ground Lease either by virtue of its Leasehold Mortgage or by any subsequent
receipt or collection of rents or profits generated from the GL Property, unless
and until the Leasehold Mortgagee acquires BNPLC's leasehold estate in the GL
Property at foreclosure or by deed in lieu of foreclosure.
(G0 Although the foregoing provisions concerning Leasehold
Mortgages and Leasehold Mortgagees will be self operative, Lessor agrees to
include, in addition to the items specified in Paragraph 11, confirmation of the
foregoing in any statement provided to a Leasehold Mortgagee or prospective
Leasehold Mortgagee pursuant to Paragraph 11.
Exhibit B-3 - Page 6
[Land]
9. Events of Default.
(A0 Definition of Ground Lease Default. Each of the following
----------------------------------
events shall be deemed to be a "Ground Lease Default" by BNPLC under this Ground
Lease:
(1 BNPLC shall fail to pay when due any installment of Ground
Lease Rent due hereunder and such failure shall continue for sixty
days after BNPLC receives notice thereof.
(2 BNPLC shall fail to comply with any term, provision or
covenant of this Ground Lease (other than as described in the other
clauses of this subparagraph 9.(A)), and shall not cure such failure
prior to the earlier of (A) ninety days after notice thereof is sent
to BNPLC, or (B) the date any writ or order is issued for the levy or
sale of any property owned by Lessor or its Affiliates (including the
GL Property) because of such failure or any criminal action is
instituted against BNPLC or any of its directors, officers or
employees because of such failure; provided, however, that so long as
no such writ or order is issued and no such criminal actions is
instituted, if such failure is susceptible of cure but cannot with
reasonable diligence be cured within such ninety day period, and if
BNPLC shall promptly have commenced to cure the same and shall
thereafter prosecute the curing thereof with reasonable diligence, the
period within which such failure may be cured shall be extended for
such further period as shall be necessary for the curing thereof with
reasonable diligence.
(B0 Remedy. Upon the occurrence of a Ground Lease Default which
------
is not cured within any applicable period expressly permitted by subparagraph
9.(A), Lessor's sole and exclusive remedies shall be to ▇▇▇ BNPLC for the
collection of any amount due under this Ground Lease, to ▇▇▇ for the specific
enforcement of BNPLC's obligations hereunder, or to enjoin the continuation of
the Ground Lease Default; provided, however, no limitation of Lessor's remedies
contained herein will prevent Lessor from recovering any reasonable costs Lessor
may incur to mitigate its damages by curing a Ground Lease Default that BNPLC
has failed to cure itself (so long as the cure by Lessor is pursued in a lawful
manner and the costs Lessor seeks to recover do not exceed the actual damages to
be mitigated). Lessor may not terminate this Ground Lease or BNPLC's right to
possession under this Ground Lease. Any judgment which Lessor may obtain against
BNPLC for amounts due under this Ground Lease may be collected only through
resort of a judgement lien against BNPLC's interest in the GL Property and any
Improvements. BNPLC shall have no personal liability for the payment amounts due
under this or for the performance of any obligations of BNPLC under this Ground
Lease.
10. Quiet Enjoyment. Neither Lessor nor any third party lawfully
claiming any right or interest in the GL Property shall during the Ground Lease
Term disturb BNPLC's peaceable and quiet enjoyment of the GL Property; however,
such enjoyment shall be subject to the terms, provisions, covenants, agreements
and conditions of this Ground Lease and the Permitted Encumbrances, to which
this Ground Lease is subject and subordinate as hereinabove set forth.
11. Estoppel Certificate. Lessor shall from time to time, within ten
days after receipt of request by BNPLC, deliver a statement in writing
certifying:
(A0 that this Ground Lease is unmodified and in full force and
effect (or if modified that this Ground Lease as so modified is in full force
and effect);
(B0 that to the knowledge of Lessor BNPLC has not previously
assigned or hypothecated its rights or interests under this Ground Lease, except
as is described in such statement with as much specificity as Lessor is able to
provide;
(C0 the term of this Ground Lease and the Ground Lease Rent
then in effect and any additional
Exhibit B-3 - Page 7
[Land]
charges;
(D0 that BNPLC is not in default under any provision of this
Ground Lease (or if in default, the nature thereof in detail) and a statement as
to any outstanding obligations on the part of Lessor or BNPLC; and
(E0 such other matters as are reasonably requested by BNPLC.
Lessor's failure to deliver such statement within such time shall be conclusive
upon BNPLC (i) that this Ground Lease is in full force and effect, without
modification except as may be represented by BNPLC, (ii) that there are no
uncured defaults in BNPLC's performance hereunder.
12. Option To Repurchase. Subject to the terms and conditions set
forth in Annex 5, BNPLC (and any assignee of BNPLC's entire interest in the GL
-------
Property, but not any subtenant or assignee of a lesser interest) shall have the
option (the "Repurchase Option") to purchase Lessor's interest in the GL
Property. To secure BNPLC's right to recover any damages caused by a breach of
the Repurchase Option or other provisions of this Ground Lease by Lessor,
including any such breach caused by a rejection or termination of this Ground
Lease in any bankruptcy or insolvency proceeding instituted by or against
Lessor, as debtor, Lessor does hereby grant to BNPLC a lien and security
interest against the Land and against all rights, title and interests of Lessor
from time to time in and to the GL Property.
[The signature pages follow.]
Exhibit B-3 - Page 8
[Land]
IN WITNESS WHEREOF, this Ground Lease is hereby executed in
multiple originals as of the date first written above.
"Lessor"
[Extreme or the Applicable Purchaser]
By: ____________________________________
Name: ___________________________
Title: __________________________
Exhibit B-3 - Page 9
[Land]
[Continuation of signature pages to GROUND LEASE dated as of ___________, ____]
"BNPLC"
BNP LEASING CORPORATION
By: ____________________________________
Name: ___________________________
Title: __________________________
Exhibit B-3 - Page 10
[Land]
STATE OF ___________ )
)
COUNTY OF _____________ )
On _____________, _____, before me, ________________________,
personally appeared ____________________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person whose name
is subscribed to the within instrument and acknowledged to me that he executed
the same in his authorized capacity, and that by his signature on the instrument
the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Signature ______________________________
Exhibit B-3 - Page 11
[Land]
STATE OF ________ )
)
COUNTY OF __________ )
On ___________, _____, before me, ________________________, personally
appeared ____________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature ______________________________
Exhibit B-3 - Page 12
[Land]
Annex 1
-------
Legal Description
[DRAFTING NOTE: TO THE EXTENT THAT THE "LAND" COVERED BY THE LAND LEASE CHANGES
--------------
FROM TIME TO TIME BECAUSE OF ADJUSTMENTS FOR WHICH EXTREME REQUESTS BNPLC'S
CONSENT OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY
SUCH CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING
NOTE" WILL BE DELETED BEFORE THE DEED TO WHICH THIS DESCRIPTION IS ATTACHED IS
ACTUALLY EXECUTED AND DELIVERED.]
All that certain real property situated in the City of Santa ▇▇▇▇▇, County of
Santa ▇▇▇▇▇, State of California, described as follows:
Being a portion of that certain 24.740 acre parcel as shown on that certain
Record of Survey filed in Book 447 of Maps, at Page 33, Santa ▇▇▇▇▇ County
Records, described as follows:
Beginning at the Northwest corner of said 24.740 acre parcel; thence from said
point of beginning along the Northerly line of said 24.470 acre parcel N. 89
degrees 25 minutes 00 seconds E. 995.17 feet; thence leaving said Northerly
lines S. 0 degrees 10 minutes 00 seconds W. 705.02 feet to a point in the
Southerly line of said 24.740 acre parcel; thence along said Southerly line the
following courses: S. 89 degrees 25 minutes 00 seconds W. 181.82 feet; S. 2.00
feet and S. 89 degrees 25 minutes 00 seconds W. 760.70 feet; thence leaving said
Southerly line along a tangent curve to the right, with a radius of 50.00 feet,
through a central angle of 90 degrees 34 minutes 33 seconds for an arc length of
79.4 feet to a point in the Westerly line of said 24.470 acre parcel; thence
along said Westerly line N. 0 degrees 00 minutes 27 seconds W. 656.49 feet to
the point of beginning.
Exhibit B-3 - Page 13
[Land]
Annex 2
-------
Permitted Encumbrances
The leasehold and other interests in the Land hereby conveyed by Lessor are
conveyed subject to the following matters to the extent the same are still valid
and in force:
[THE SAME LIST OF PERMITTED ENCUMBRANCES ATTACHED TO THE GRANT DEED FROM BNPLC
TO EXTREME OR THE APPLICABLE PURCHASER SHALL BE INSERTED HERE.]
Exhibit B-3 - Page 14
[Land]
Annex 3
-------
List of Development Documents
None.
[Land]
Exhibit B-3 - Page 15
Annex 4
-------
DETERMINATION OF FAIR RENTAL VALUE
Each annual payment of Ground Lease Rent will equal the Fair Rental
Value, computed as of the most recent Rental Determination Date when such
payment becomes due. As used in this Annex:
"Fair Rental Value" means (and all appraisers and other
persons involved in the determination of the Fair Rental Value will be
so advised) the annual rent, as determined in accordance with this
Annex, that would be agreed upon between a willing tenant, under no
compulsion to lease, and a willing landlord, under no compulsion to
lease, for unimproved land comparable in size and location to the Land,
----------
exclusive of any Improvements but assuming that there is no higher and
better use for such land than as a site for improvements of comparable
size and utility to the Improvements, at the time a determination is
required under hereunder and taking into consideration the condition of
the Land, the encumbrances affecting the title to the Land and all
applicable zoning, land use approvals and other governmental permits
relating to the Land at the time of such determination; and
"Rental Determination Date" means the GL Effective Date and
each fifth anniversary of the GL Effective Date.
If Lessor and BNPLC have not agreed upon Fair Rental Value as of any
Rental Determination Date within one hundred eighty days after the such date,
then Fair Rental Value will be determined as follows:
(a0 Lessor and BNPLC shall each appoint a real estate
appraiser who is familiar with rental values for properties in the
vicinity of the Land and who has not previously acted for either party.
Each party will make the appointment no later than ten days after
receipt of notice from the other party that the appraisal process
described in this Annex has been invoked. The agreement of the two
appraisers as to Fair Rental Value will be binding upon Lessor and
BNPLC. If the two appraisers cannot agree upon the Fair Rental Value
within ten days following their appointment, they shall within another
ten days agree upon a third real estate appraiser. Immediately
thereafter, each of the first two appraisers will submit his best
estimate of the appropriate Fair Rental Value (together with a written
report supporting such estimate) to the third appraiser and the third
appraiser will choose between the two estimates. The estimate of Fair
Rental Value chosen by the third appraiser as the closest to the
prevailing annual fair rental value will be binding upon Lessor and
BNPLC. Notification in writing of this estimate shall be made to Lessor
and BNPLC within fifteen days following the selection of the third
appraiser.
(b0 If appraisers must be selected under the procedure set out
above and either BNPLC or Lessor fails to appoint an appraiser or fails
to notify the other party of such appointment within fifteen days after
receipt of notice that the prescribed time for appointing the
appraisers has passed, then the other party's appraiser will determine
the Fair Rental Value. All appraisers selected for the appraisal
process set out in this Annex will be disinterested, reputable,
qualified real estate appraisers with the designation of MAI or
equivalent and with at least 5 years experience in appraising
properties comparable to the Land.
(c0 If a third appraiser must be chosen under the procedure
set out above, he or she will be chosen on the basis of objectivity and
competence, not on the basis of his relationship with the other
appraisers or the parties to this Ground Lease, and the first two
appraisers will be so advised. Although the first two appraisers will
be instructed to attempt in good faith to agree upon the third
appraiser, if for any reason they cannot agree within the prescribed
time, either Lessor and BNPLC may require the first two appraisers to
immediately submit its top choice for the third appraiser to the then
highest ranking officer of the California Bar Association who will
agree to help and who has no attorney/client or other significant
[Land]
Exhibit B-3 - Page 16
relationship to either Lessor or BNPLC. Such officer will have complete
discretion to select the most objective and competent third appraiser
from between the choices of each of the first two appraisers, and will
do so within twenty days after such choices are submitted to him.
(d0 Either Lessor or BNPLC may notify the appraiser selected
by the other party to demand the submission of an estimate of Fair
Rental Value or a choice of a third appraiser as required under the
procedure described above; and if the submission of such an estimate or
choice is required but the other party's appraiser fails to comply with
the demand within fifteen days after receipt of such notice, then the
Fair Rental Value or choice of the third appraiser, as the case may be,
selected by the other appraiser (i.e., the notifying party's appraiser)
will be binding upon Lessor and BNPLC.
(e0 Lessor and BNPLC shall each bear the expense of the
appraiser appointed by it, and the expense of the third appraiser and
of any officer of the California Bar Association who participates in
the appraisal process described above will be shared equally by Lessor
and BNPLC.
[Land]
Exhibit B-3 - Page 17
Annex 5
-------
REPURCHASE OPTION
Subject to the terms of this Annex, BNPLC shall have an option (the
"Option") to buy Lessor's fee interest in the GL Property at any time during the
term of this Ground Lease for a purchase price (the "Option Price") to Lessor
equal to the fair market value of the GL Property, determined as described in
the next paragraph.
For the purposes of this Annex, "fair market value" of the GL Property
means (and all appraisers and other persons involved in the determination of the
Option Price will be so advised) the price that would be agreed upon between a
willing buyer, under no compulsion to buy, and a willing seller, under no
compulsion to sell, for the Land, exclusive of any Improvements as if the Land
were unimproved, but assuming that there is no higher and better use for the
----------
Land than as a site for the construction of improvements of comparable size and
utility to the Improvements, at the time of BNPLC's exercise of the Option and
taking into consideration the encumbrances affecting the title to the Land and
all applicable zoning, land use approvals and other governmental permits
relating to the Land at the time of the exercise of the Option.
If BNPLC exercises the Option, which BNPLC may do by notifying Lessor
that BNPLC has elected to buy Lessor's interest in the GL Property as provided
herein, then:
(a0 To the extent, if any, required as a condition imposed by
law to the conveyance of the fee interest in the GL Property to BNPLC,
Lessor shall promptly at its expense do whatever is necessary to obtain
approvals of a new Parcel Map or lot line adjustments.
(b0 Upon BNPLC's tender of the Option Price to Lessor, Lessor
will convey to BNPLC by general warranty deed and assignment, subject
only to the Permitted Encumbrances, good and marketable title to the
fee estate in the Land , to Lessor's interest in all other GL Property
and, to the extent still in force, to Lessor's Extended Remarketing
Rights under the Purchase Agreement.
(c0 BNPLC's obligation to close the purchase shall be subject
to the following terms and conditions, all of which are for the benefit
of BNPLC: (1) BNPLC shall have been furnished with evidence
satisfactory to BNPLC that Lessor can convey title as required by the
preceding subparagraph; (2) nothing shall have occurred or been
discovered after BNPLC exercised the Option that could significantly
and adversely affect title to the GL Property or BNPLC's use thereof,
(3) all of the representations of Lessor in this Ground Lease shall
continue to be true as if made effective on the date of the closing
and, with respect to any such representations which may be limited to
the knowledge of Lessor or any of Lessor's representatives, would
continue to be true on the date of the closing if all relevant facts
and circumstances were known to Lessor and such representatives, (4)
BNPLC shall find the Option Price acceptable after it is determined as
provided in this Annex, and (5) BNPLC shall have been tendered the deed
and other documents which are described in this Annex as documents to
be delivered to BNPLC at the closing of BNPLC's purchase.
(d0 Closing of the purchase will be scheduled on the first
Business Day following thirty days after the Option Price is
established in accordance with the terms and conditions of this Annex
and after any approvals described in subparagraph (a) above are
obtained, and prior to closing BNPLC's occupancy of the GL Property
shall continue to be subject to the terms and conditions of this Ground
Lease, including the terms setting forth BNPLC's obligation to pay
rent. Closing shall take place at the offices of any title insurance
company reasonably selected by BNPLC to insure title under the title
insurance policy described below.
[Land]
Exhibit B-3 - Page 18
(e0 Any transfer taxes or notices or registrations required by
law in connection with the sale contemplated by this Annex will be the
responsibility of Lessor.
(f0 Lessor will deliver a certificate of nonforeign status to
BNPLC at closing as needed to comply with the provisions of the Foreign
Investors Real Property Tax Act (FIRPTA) or any comparable federal,
state or local law in effect at the time.
(g0 Lessor will also pay for and deliver to BNPLC at the
closing an owner's title insurance policy in the full amount of the
Option Price, issued by a title insurance company designated by BNPLC
(or written confirmation from the title company that it is then
prepared to issue such a policy), and subject only to standard printed
exceptions which the title insurance company refuses to delete or
modify in a manner acceptable to BNPLC and to Permitted Encumbrances.
(h0 Lessor shall also deliver at the closing all other
documents or things reasonably required to be delivered to BNPLC or by
the title insurance company to evidence Lessor's ability to transfer
the GL Property to BNPLC.
If Lessor and BNPLC do not otherwise agree upon the amount of the
Option Price within twenty days after BNPLC exercises the Option, the Option
Price shall be determined in accordance with the following procedure:
(1 Lessor and BNPLC shall each appoint a real estate
appraiser who is familiar with properties in the vicinity of
the Land and who has not previously acted for either party.
Each party will make the appointment no later than ten days
after receipt of notice from the other party that the
appraisal process described in this Annex has been invoked.
The agreement of the two appraisers as to the Option Price
will be binding upon Lessor and BNPLC. If the two appraisers
cannot agree upon the Option Price within ten days following
their appointment, they shall within another ten days agree
upon a third real estate appraiser. Immediately thereafter,
each of the first two appraisers will submit his best estimate
of the appropriate Option Price (together with a written
report supporting such estimate) to the third appraiser and
the third appraiser will choose between the two estimates. The
estimate of Option Price chosen by the third appraiser as the
closest to the prevailing fair market value will be binding
upon Lessor and BNPLC. Notification in writing of the Option
Price shall be made to Lessor and BNPLC within fifteen days
following the selection of the third appraiser.
(2 If appraisers must be selected under the procedure
set out above and either BNPLC or Lessor fails to appoint an
appraiser or fails to notify the other party of such
appointment within fifteen days after receipt of notice that
the prescribed time for appointing the appraisers has passed,
then the other party's appraiser will determine the Option
Price. All appraisers selected for the appraisal process set
out in this Annex will be disinterested, reputable, qualified
real estate appraisers with the designation of MAI or
equivalent and with at least 5 years experience in appraising
properties comparable to the Land.
(3 If a third appraiser must be chosen under the
procedure set out above, he will be chosen on the basis of
objectivity and competence, not on the basis of his
relationship with the other appraisers or the parties to this
Ground Lease, and the first two appraisers will be so advised.
Although the first two appraisers will be instructed to
attempt in good faith to agree upon the third appraiser, if
for any reason they cannot agree within the prescribed time,
either Lessor and BNPLC may require the first two appraisers
to immediately submit its top choice for the third appraiser
to the then highest ranking officer of the California Bar
Association who will agree to help and who has no
attorney/client or other significant relationship to either
Lessor or BNPLC. Such officer
[Land]
Exhibit B-3 - Page 19
will have complete discretion to select the most objective and
competent third appraiser from between the choices of each of
the first two appraisers, and will do so within ten days after
such choices are submitted to him.
(4 Either Lessor or BNPLC may notify the appraiser
selected by the other party to demand the submission of an
estimate of Option Price or a choice of a third appraiser as
required under the procedure described above; and if the
submission of such an estimate or choice is required but the
other party's appraiser fails to comply with the demand within
fifteen days after receipt of such notice, then the Option
Price or choice of the third appraiser, as the case may be,
selected by the other appraiser (i.e., the notifying party's
appraiser) will be binding upon Lessor and BNPLC.
(5 Lessor and BNPLC shall each bear the expense of
the appraiser appointed by it, and the expense of the third
appraiser and of any officer of the California Bar Association
who participates in the appraisal process described above will
be shared equally by Lessor and BNPLC.
[Land]
Exhibit B-3 - Page 20
Exhibit B-4
-----------
CORPORATION GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
-------------------------
NAME: [Extreme or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE: ___________________
Zip: ___________________
MAIL TAX STATEMENTS TO:
----------------------
NAME: [Extreme or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE: ___________________
Zip: ___________________
CORPORATION GRANT DEED
(Covering Land but not the Improvements On the Land)
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, BNP
LEASING CORPORATION, a Delaware corporation ("Grantor"), hereby grants to
[Extreme or the Applicable Purchaser] ("Grantee") all of Grantor's interest in
the land situated in Santa Clara, California, described on Annex A attached
hereto and hereby made a part hereof (the "Land"), together with the any other
right, title and interest of Grantor in and to any easements, rights-of-way,
privileges and other rights appurtenant to the Land; provided, however, that
this grant is subject to the encumbrances described on Annex B (the "Permitted
Encumbrances") and any reservations or qualifications set forth below. Grantee
hereby assumes the obligations (including any personal obligations) of Grantor,
if any, created by or under, and agrees to be bound by the terms and conditions
of, the Permitted Encumbrances to the extent that the same concern or apply to
the Land.
Although this deed conveys Grantor's interest in the Land itself, this deed does
not convey any interest in any buildings or other improvements on the Land
(collectively, "Improvements") or any rights or easements appurtenant to
Improvements. Prior to or contemporaneously with the delivery of this deed,
Grantor has conveyed or is conveying the Improvements and appurtenant rights and
easements to another party.
[Land]
BNP LEASING CORPORATION
Date: As of ____________ By: ________________________
Its:
Attest: ________________________
Its:
[Extreme 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____________________
[Land]
Exhibit B-4 - Page 2
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_____________________
[Land]
Exhibit B-4 - Page 3
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 EXTREME REQUESTS BNPLC'S
CONSENT OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY
SUCH CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING
NOTE" WILL BE DELETED BEFORE THE DEED TO WHICH THIS DESCRIPTION IS ATTACHED IS
ACTUALLY EXECUTED AND DELIVERED.]
All that certain real property situated in the City of Santa ▇▇▇▇▇, County of
Santa ▇▇▇▇▇, State of California, described as follows:
Being a portion of that certain 24.740 acre parcel as shown on that certain
Record of Survey filed in Book 447 of Maps, at Page 33, Santa ▇▇▇▇▇ County
Records, described as follows:
Beginning at the Northwest corner of said 24.740 acre parcel; thence from said
point of beginning along the Northerly line of said 24.470 acre parcel N. 89
degrees 25 minutes 00 seconds E. 995.17 feet; thence leaving said Northerly
lines S. 0 degrees 10 minutes 00 seconds W. 705.02 feet to a point in the
Southerly line of said 24.740 acre parcel; thence along said Southerly line the
following courses: S. 89 degrees 25 minutes 00 seconds W. 181.82 feet; S. 2.00
feet and S. 89 degrees 25 minutes 00 seconds W. 760.70 feet; thence leaving said
Southerly line along a tangent curve to the right, with a radius of 50.00 feet,
through a central angle of 90 degrees 34 minutes 33 seconds for an arc length of
79.4 feet to a point in the Westerly line of said 24.470 acre parcel; thence
along said Westerly line N. 0 degrees 00 minutes 27 seconds W. 656.49 feet to
the point of beginning.
[Land]
Exhibit B-4 - Page 4
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 EXTREME'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 (Land) incorporated by reference into the Lease Agreement (Land)
referenced in the last item of the list below), including the following matters
to the extent the same are still valid and in force:
1. TAXES for the fiscal year 2000-2001, a lien not yet due or payable.
2. The lien of supplemental taxes, if any, assessed pursuant to the
provisions of Chapter 3.5, (commencing with Section 75) to the Revenue
and Taxation Code of the State of California.
3. An easement affecting the portion of said land and for the purpose
stated herein and incidental purposes,
In Favor Of: City of Santa ▇▇▇▇▇
For: electric wire overhang purposes
Recorded: November 28, 1960 in Book 4995, Page 160, Official Records
Affects: Northerly 5 feet of said land, and as shown on the survey
prepared by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, L.S. 5944, dated
April 27, 2000, revised May 22, 2000
4. The fact that the ownership of said land does not include any right of
ingress or egress to or from ▇▇▇▇▇▇▇▇ Expressway contiguous thereto,
said right having been relinquished by deed,
From: Jefferson Union Elementary School District of the County of Santa
▇▇▇▇▇
To: County of Santa ▇▇▇▇▇, State of California
Recorded: June 4, 1965 in Book 6982, Page 1, Official Records
Said land, however, abuts on a public street other than the one
referred to above, over which rights of vehicular access have not been
relinquished.
5. An Agreement, affecting said land, for the purposes stated herein and
subject to the terms, covenants, conditions, restrictions, and
easements, if any, contained therein
For: Postponed Traffic Signal Improvements
Dated: October 4, 1983
Executed by: City of Santa Clara, California, a municipal corporation
and MPJ, a California partnership Recorded: November 16, 1983 in Book I
070, Page 333, Official Records.
6. An easement affecting the portion of said land and for the purpose
stated herein and incidental purposes,
In Favor Of: City of Santa ▇▇▇▇▇, a municipal corporation
For: roadway purposes and public utilities
Recorded: November 30, 1983 in Book I 111, Page 606, Official Records
Affects: A portion of that certain 24.740 acre parcel of land as shown
on that certain Record of Survey filed for record in Book 447 of Maps,
at page 33, Santa ▇▇▇▇▇ County Records, described as
[Land]
Exhibit B-4 - Page 5
follows:
Beginning at a point in the Northerly line of Monroe Avenue, as shown
on said map at the Westerly terminus of the course shown as N. 89
degrees 25 minutes 00 seconds E. 760.70; thence from said point of
beginning along said Northerly line N. 89 degrees 25 minutes 00 seconds
E. 760.70 feet and N. 2.00 feet; thence leaving said Northerly line
along a line parallel with said course of N. 89 degrees 25 minutes 00
seconds E.; S. 89 degrees 25 minutes 00 seconds W. 334.99 feet; thence
leaving said parallel line N. 87 degrees 09 minutes 00 seconds W. 66.79
feet; thence along a line parallel with said course N. 89 degrees 25
minutes 00 seconds E.; S. 89 degrees 25 minutes 00 seconds W. 359.00
feet; thence leaving said Westerly line along a tangent curve to the
right, with a radius of 50.00 feet, through a central angle of 90
degrees 34 minutes 33 seconds for an arc length of 79.04 feet to a
point of cusp in the Westerly line of said 24.740 acre parcel; thence
along said Westerly line S. 0 degrees 00 minutes 27 seconds E. 6.00
feet; thence leaving said Westerly line along a tangent curve to the
left, with a radius of 50.00 feet, through a central angle of 90
degrees 34 minutes 33 seconds for an arc length of 79.04 feet to the
point of beginning, and as shown on the survey prepared by ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, L.S. 5944, dated April 27, 2000, revised May 22, 2000.
7. An easement affecting the portion of said land and for the purpose
stated herein and incidental purposes,
In Favor Of: City of Santa ▇▇▇▇▇, a municipal corporation
For: underground electrical distribution and/or communication systems
Recorded: May 17, 1984 in Book I 552, Page 595, Official Records
Affects. as follows:
Parcel 1:
Commencing at the point of intersection of the Westerly line of that
certain 24.74 acre parcel of land shown upon that Record of Survey
filed for recorded August 10, 1979 in Book 447 of Maps, at page 33,
Santa ▇▇▇▇▇ County Records, with a line parallel with and 10 feet
Southerly of, measured at right angles to, the Northerly line of said
parcel; thence along said parallel line N. 89 degrees 25 minutes 00
seconds E. 107.00 feet; thence parallel with said Westerly line S. 0
degrees 00 minutes 27 seconds E. 319.16 feet; thence S. 34 degrees 02
minutes 45 seconds W. 87.51 feet, more or less, to intersection with a
line parallel with and 58 feet Easterly of measured at right angles to,
said Westerly line; thence along last said parallel line S. 0 degrees
00 minutes 27 seconds E. 294.30 feet, more or less, to intersection
with a line parallel with and 5 feet Northerly of, measured at right
angles to, the Northerly line of that real property conveyed to the
City of Santa ▇▇▇▇▇ by that deed filed for record November 30, 1983 in
Book I 111 of Official Records, at page 606, said County Records;
thence along last said parallel line the following three (3) courses:
N. 89 degrees 25 minutes 00 seconds E. 351.81 feet; S. 87 degrees 09
minutes 00 seconds E. 66.79 feet; N. 89 degrees 25 minutes 00 seconds
E. 334.69 feet; thence continuing parallel with the Southerly line of
first said parcel N. 89 degrees 25 minutes 00 seconds E. 181.89 feet,
more or less, to termination in the Easterly line of that certain
parcel of real property conveyed to MPJ Partnership, by that Grant Deed
filed for record August 25, 1983 in Book H 838 of Official Records, at
page 215, said County Records.
Parcel 2:
A portion of said 24.74 acre parcel of land contiguous to and Northerly
of said real property conveyed by deed recorded in Book I 111, at page
606, contiguous to and Westerly of hereinabove described strip of land
and bounded on the North by a line parallel with and 5 feet Northerly
of, measured at right angles to, that course N. 89 degrees 25 minutes
00 seconds E. 351.81 feet in the hereinabove described centerline.
Parcel 3:
[Land]
Exhibit B-4 - Page 6
A strip of land 10 feet in width and 30 feet in length of centerline of
said strip being parallel with and 325.5 feet Southerly of, measured at
right angles to, said Northerly line of the 24.74 acre parcel and
terminating on the West in the Easterly line of first hereinabove
described strip; thence continuing Easterly along last said parallel
line for a distance of 15 feet, as the centerline of a strip of land 15
feet in width, to termination of said centerline and strip.
Parcel 4:
A strip of land 10 feet in width and 12 feet in length the centerline
of said strip being parallel with and 116.5 feet Southerly of, measured
at right angles to, said Northerly line of the 24.74 acre parcel and
terminating on the West in the Easterly line of first hereinabove
described strip; thence continuing Easterly along last said parallel
line for a distance of 15 feet in width, lying 5 feet Northerly and 10
feet Southerly of said parallel line to the Easterly terminus of said
strip.
Parcel 5:
A strip of land 10 feet in width, the centerline of said strip being
described as follows:
Commencing at the point of intersection of the Northerly line of first
hereinabove described strip of land with a line parallel with and 824.5
feet Easterly of, measured at right angles to, that course in the
Westerly boundary of said 24.75 acre parcel bearing N. 0 degrees 00
minutes 27 seconds W.; thence along last said parallel line N. 0
degrees 00 minutes 27 seconds W. 367.96 feet, more or less, to a line
parallel with and 327 feet Southerly of, measured at right angles to,
said Northerly line of the 24.74 acre parcel; thence along last said
parallel line S. 89 degrees 25 minutes 00 seconds W. 78 feet to a line
parallel with and 746.5 feet Easterly of, measured at right angles to,
said Westerly line of the 24.74 acre parcel; thence along last said
parallel line N. 0 degrees 00 minutes 27 seconds W. 203 feet; thence
continuing as the centerline of a strip of land 15 feet in width N. 0
degrees 00 minutes 27 seconds W. 15 feet, more or less, to termination
of said strip and centerline in a line parallel with and 109 feet
Southerly of, measured at right angles to, last said Northerly line.
Parcel 6:
A 15 foot square parcel of land contiguous to and Southerly of last
hereinabove described 10 foot wide strip of land and centered on the
Southerly prolongation of hereinabove mentioned course N. 0 degrees 00
minutes 27 seconds W. 203 feet, and as shown on the survey prepared by
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, L.S. 5944, dated April 27, 2000, revised May 22,
2000.
8. Lease Agreement (Land) dated as of June 1, 2000, by and between BNP
Leasing Corporation, as lessor, and Extreme Networks, Inc., as lessee,
and Lease Agreement (Improvements) dated as of June 1, 2000, by and
between BNP Leasing Corporation, as lessor, and Extreme Networks, Inc.,
as lessee.
[Land]
Exhibit B-4 - Page 7
Exhibit C
---------
▇▇▇▇ OF SALE AND ASSIGNMENT
Reference is made to: (1) that certain Purchase Agreement (Land)
between BNP Leasing Corporation ("Assignor") and Extreme Networks, Inc., dated
as of June 1, 2000, (the "Purchase Agreement") and (2) that certain Lease
Agreement (Land) between Assignor, as landlord, and Extreme Networks, Inc., as
tenant, dated as of June __, 2000 (the "Land Lease"). (Capitalized terms used
and not otherwise defined in this document are intended to have the meanings
assigned to them in the Common Definitions and Provisions Agreement (Land)
incorporated by reference into both the Purchase Agreement and Land Lease.)
As contemplated by the Purchase Agreement, Assignor hereby sells,
transfers and assigns unto [EXTREME OR THE APPLICABLE PURCHASER, AS THE CASE MAY
BE], a _____________ ("Assignee"), all of Assignor's right, title and interest
in and to the following property, if any, to the extent such property is
assignable:
(a) the Land Lease;
(b) any pending or future award made because of any condemnation
affecting the Property or because of any conveyance to be made in lieu thereof,
and any unpaid award for damage to the Property and any unpaid proceeds of
insurance or claim or cause of action for damage, loss or injury to the
Property; and
(c) all other property included within the definition of "Property"
as set forth in the Purchase Agreement.
Provided, however, excluded from this conveyance and reserved to Assignor are
any rights or privileges of Assignor under the following ("Excluded Rights"):
(1) the indemnities set forth in the Land Lease, whether such rights are
presently known or unknown, including rights of the Assignor to be indemnified
against environmental claims of third parties as provided in the Land Lease
which may not presently be known, (2) provisions in the Land Lease that
establish the right of Assignor to recover any accrued unpaid rent under the
Land Lease which may be outstanding as of the date hereof, (3) agreements
between Assignor and "BNPLC's Parent" or any "Participant," both as defined in
the Land Lease, or any modification or extension thereof, or (4) any other
instrument being delivered to Assignor contemporaneously herewith pursuant to
the Purchase Agreement. To the extent that this conveyance does include any
rights to receive future payments under the Land Lease, such rights ("Included
Rights") shall be subordinate to Assignor's Excluded Rights, and Assignee hereby
waives any rights to enforce Included Rights until such time as Assignor has
received all payments to which it remains entitled by reason of Excluded Rights.
If any amount shall be paid to Assignee on account of any Included Rights at any
time before Assignor has received all payments to which it is entitled because
of Excluded Rights, such amount shall be held in trust by Assignee for the
benefit of Assignor, shall be segregated from the other funds of Assignee and
shall forthwith be paid over to Assignor to be held by Assignor as collateral
for, or then or at any time thereafter applied in whole or in part by Assignor
against, the payments due to Assignor because of Excluded Rights, whether
matured or unmatured, in such order as Assignor shall elect.
Assignor does for itself and its successors covenant and agree to
warrant and defend the title to the property assigned herein against the just
and lawful claims and demands of any person claiming under or through a Lien
Removable by BNPLC, but not otherwise.
Assignee hereby assumes and agrees to keep, perform and fulfill
Assignor's obligations, if any, relating to any permits or contracts, under
which Assignor has rights being assigned herein.
[Land]
IN WITNESS WHEREOF, the parties have executed this instrument as of
_______________, _____.
ASSIGNOR:
--------
BNP LEASING CORPORATION a Delaware
corporation
By:__________________________________
Its:_________________________________
ASSIGNEE:
--------
[Extreme or the Applicable Purchaser], a
____________________
By:__________________________________
Its:_________________________________
[Land]
Exhibit C - Page 2
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 _________________________
[Land]
Exhibit C - Page 3
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 EXTREME REQUESTS BNPLC'S
CONSENT OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY
SUCH CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING
NOTE" WILL BE DELETED BEFORE THE DOCUMENT TO WHICH THIS DESCRIPTION IS ATTACHED
IS ACTUALLY EXECUTED AND DELIVERED.]
All that certain real property situated in the City of Santa ▇▇▇▇▇, County of
Santa ▇▇▇▇▇, State of California, described as follows:
Being a portion of that certain 24.740 acre parcel as shown on that certain
Record of Survey filed in Book 447 of Maps, at Page 33, Santa ▇▇▇▇▇ County
Records, described as follows:
Beginning at the Northwest corner of said 24.740 acre parcel; thence from said
point of beginning along the Northerly line of said 24.470 acre parcel N. 89
degrees 25 minutes 00 seconds E. 995.17 feet; thence leaving said Northerly
lines S. 0 degrees 10 minutes 00 seconds W. 705.02 feet to a point in the
Southerly line of said 24.740 acre parcel; thence along said Southerly line the
following courses: S. 89 degrees 25 minutes 00 seconds W. 181.82 feet; S. 2.00
feet and S. 89 degrees 25 minutes 00 seconds W. 760.70 feet; thence leaving said
Southerly line along a tangent curve to the right, with a radius of 50.00 feet,
through a central angle of 90 degrees 34 minutes 33 seconds for an arc length of
79.4 feet to a point in the Westerly line of said 24.470 acre parcel; thence
along said Westerly line N. 0 degrees 00 minutes 27 seconds W. 656.49 feet to
the point of beginning.
[Land]
Exhibit C - Page 4
Exhibit D
---------
ACKNOWLEDGMENT OF DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
THIS ACKNOWLEDGMENT OF DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
(this "Certificate") is made as of ___________________, ____, by [Extreme 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 ▇▇▇▇ 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
(Land) incorporated by reference into the Purchase Agreement between BNPLC and
Extreme Networks, Inc. dated as of June 1, 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 ________________, ____.
[Extreme or the Applicable Purchaser]
By:_____________________________________
Name:________________________________
Title:_______________________________
[Land]
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]
[Land]
CORPORATE RESOLUTIONS OF
BNP LEASING CORPORATION
WHEREAS, pursuant to that certain Purchase Agreement (Land) (herein
called the "Purchase Agreement") dated as of June 1, 2000, by and between BNP
Leasing Corporation (the "Corporation") and [Extreme 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 Santa Clara, 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.
[Land]
Exhibit E - Page 2
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 [Extreme or the Applicable Purchaser] (the "Transferee") that
withholding of tax is not required upon the disposition of a California real
property interest by transferor, BNP Leasing Corporation (the "Seller"), the
undersigned hereby certifies the following on behalf of the Seller:
1. The Seller is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as those terms are defined in the Internal
Revenue Code and Income Tax Regulations);
2. The United States employer identification number for the Seller is
_____________________;
3.The office address of the Seller is ______________
_________________________ _________________.
4. The Seller is qualified to do business in California.
The Seller understands that this certification may be disclosed to the
Internal Revenue Service and/or to the California Franchise Tax Board by the
Transferee and that any false statement contained herein could be punished by
fine, imprisonment, or both.
The Seller understands that the Transferee is relying on this affidavit
in determining whether withholding is required upon said transfer.
Under penalties of perjury I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have authority to sign this document on
behalf of the Seller.
Dated: ___________, ____.
By:_________________________
Name:______________________
Title:_____________________
[Land]
