EXHIBIT 10.19
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PURCHASE AGREEMENT
(IMPROVEMENTS - BUILDING 3)
BETWEEN
BNP LEASING CORPORATION
("BNPLC")
AND
ZHONE TECHNOLOGIES, INC.
("Zhone")
August 1, 2000
(Oakland, California)
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TABLE OF CONTENTS
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Page
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1 Zhone's Options and Obligations on the Designated Sale Date............................................... 2
(A) Right to Purchase; Initial Remarketing Rights; Supplemental Payment Obligation..................... 2
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(B) Determinations Concerning Price and the Supplemental Payment....................................... 3
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(C) Designation of the Purchaser....................................................................... 7
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(D) Effect of the Purchase Option and Zhone's Initial Remarketing Rights on Subsequent Title 8
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Encumbrances.......................................................................................
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(E) Security for the Purchase Option and Zhone's Initial Remarketing Rights............................ 8
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(F) Delivery of Books and Records If BNPLC Retains the Building 3 Property............................. 8
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2 Zhone's Rights and Options After the Designated Sale Date................................................. 9
(A) Zhone's Extended Right to Remarket................................................................. 9
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(B) Definition of Minimum Extended Remarketing Price................................................... 9
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(C) BNPLC's Right to Sell.............................................................................. 10
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(D) Zhone's Right to Excess Sales Proceeds............................................................. 11
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(E) Permitted Transfers During Zhone's Extended Remarketing Period..................................... 12
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3 Terms of Conveyance Upon Purchase......................................................................... 12
4 Survival and Termination of the Rights and Obligations of Zhone and BNPLC................................. 12
(A) Status of this Agreement Generally................................................................. 12
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(B) Election by Zhone to Terminate the Building 3 Supplemental Payment Obligation Prior to the
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Designated Sale Date and the Building 3 Base Rent Commencement Date................................ 13
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(C) Automatic Termination of Zhone's Rights............................................................ 14
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(D) Conditions to Zhone's Rights Relative to State and Local Subdivision Requirements.................. 14
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(E) Termination of Zhone's Extended Remarketing Rights to Permit a Sale by BNPLC....................... 15
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(F) Payment Only to BNPLC.............................................................................. 15
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(G) Remedies Under the other Operative Documents....................................................... 15
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(H) Occupancy by Zhone Prior to Closing of a Sale...................................................... 15
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(I) Preferential Payments to BNPLC..................................................................... 16
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5. Security for Zhone's Obligations; Return of Funds......................................................... 16
6 Certain Remedies Cumulative............................................................................... 17
7 Attorneys' Fees and Legal Expenses........................................................................ 17
8 Estoppel Certificate...................................................................................... 17
9 Successors and Assigns.................................................................................... 17
10 Amendment and Restatement................................................................................. 17
[Improvements - Building 3]
Exhibits and Schedules
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Exhibit A......................................................Legal Description
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Exhibit B...........................................Grant Deed Form Requirements
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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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Exhibit G...............................Notice by Zhone of Election to Terminate
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[Improvements - Building 3]
PURCHASE AGREEMENT
(IMPROVEMENTS - BUILDING 3)
This PURCHASE AGREEMENT (IMPROVEMENTS - BUILDING 3) (this "Agreement") is
made and dated as of August 1, 2000 (the "Effective Date") by and between BNP
LEASING CORPORATION, a Delaware corporation ("BNPLC"), and ZHONE TECHNOLOGIES,
INC., a Delaware corporation ("Zhone").
RECITALS
Contemporaneously with the execution of this Agreement, BNPLC and Zhone are
executing a Common Definitions and Provisions Agreement (Improvements - Building
3) dated as of the Effective Date (the "Building 3 CDPA"), 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 Building 3
CDPA and not otherwise defined in this Agreement are intended to have the
respective meanings assigned to them in the Building 3 CDPA.
Zhone and BNPLC previously executed that Purchase Agreement (Phase I -
Improvements) dated as of January 20, 2000 (the "Prior Purchase Agreement").
Zhone and BNPLC have agreed to amend, restate and replace the Prior Purchase
Agreement with this Agreement and ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇ Agreement as
provided in Paragraph 10 below.
Pursuant to the Acquisition Contract, which covers the Land described in
Exhibit A, BNPLC has acquired the Land and any appurtenances thereto from
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Seller. Contemporaneously with this Agreement, BNPLC and Zhone are executing a
Lease Agreement (Improvements - Building 3) (the "Building 3 Lease"), under
which BNPLC is leasing to Zhone the Improvements on the portion of the Land
designated as the Building 3 Site in Exhibit A (the "Building 3 Site"), and
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BNPLC is agreeing to provide funding for the construction and completion of such
Improvements, all of which will be owned by BNPLC. Also contemporaneously with
this Agreement, BNPLC and Zhone are executing a Lease Agreement (Improvements -
Buildings 1&2) (the "Buildings 1&2 Lease"), under which BNPLC is leasing to
Zhone the Improvements on all the Land other than the Building 3 Site, and BNPLC
is agreeing to provide funding for the construction and completion of such
Improvements, all of which will be owned by BNPLC.
All of BNPLC's interests in the Improvements covered by the Building 3
Lease and in all other real and personal property from time to time covered by
the Building 3 Lease and included within the "Property" as defined therein are
hereinafter collectively referred to as the "Building 3 Property". All of
BNPLC's interests in the Improvements covered by the Buildings 1&2 Lease and in
all other real and personal property from time to time covered by the Buildings
1&2 Lease and included within the "Property" as defined therein are hereinafter
collectively referred to as ▇▇▇ "▇▇▇▇▇▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇". Together, the Building
3 Property and the Buildings 1&2 Property are hereinafter called the "Combined
Properties". The Combined Properties do not include the Land itself, it being
understood that the Land Purchase Agreement constitutes a separate agreement
providing for the possible sale of the Land and the appurtenances thereto, and
only the Land and the appurtenances thereto, from BNPLC to Zhone or a third
party designated by Zhone.
AGREEMENTS
1 Zhone's Options and Obligations on the Designated Sale Date.
(A) Right to Purchase; Initial Remarketing Rights; Supplemental
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Payment Obligation. Whether or not an Event of Default shall have occurred and
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be continuing or the Building 3 Lease shall have been terminated, but subject to
Paragraph 4 below:
(1) Zhone shall have the right (the "Purchase Option") to
purchase or cause an Affiliate of Zhone to purchase the Building 3 Property
and BNPLC's interest in Building 3 Escrowed Proceeds, if any, on the
Designated Sale Date for a cash price equal to the Building 3 Break Even
Amount (as defined below).
(2) If neither Zhone nor an Affiliate of Zhone purchases the
Building 3 Property and BNPLC's interest in any Building 3 Escrowed
Proceeds on the Designated Sale Date as provided in the preceding
subparagraph 1(A)(1), then Zhone shall have the following rights
(collectively, "Zhone's Initial Remarketing Rights"):
(a) First, Zhone shall have the right (but not the
obligation) to cause an Applicable Purchaser who is not an Affiliate
of Zhone to purchase the Building 3 Property and BNPLC's interest in
any Building 3 Escrowed Proceeds on the Designated Sale Date for a
cash purchase price equal to the Building 3 Third Party Price (as
defined below). If, however, (i) the Building 3 Break Even Amount
exceeds the sum of any Building 3 Third Party Price tendered or to be
tendered to BNPLC and any Building 3 Supplemental Payment paid to
BNPLC on the Designated Sale Date itself, and (ii) the Buildings 1&2
Break Even Amount (under and as defined in ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇
Agreement) exceeds the sum of any Buildings 1&2 Third Party Price
(under and as defined in ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇ Agreement)
tendered or to be tendered to BNPLC and any Buildings 1&2 Supplemental
Payment (under and as defined in ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇ Agreement)
paid to BNPLC on the Designated Sale Date itself, then BNPLC may
affirmatively elect to decline such tender from the Applicable
Purchaser and to keep the Building 3 Property (together with any
Building 3 Escrowed Proceeds) rather than sell to the Applicable
Purchaser (a "Voluntary Retention of the Property"). But if BNPLC
elects a Voluntary Retention of the Property hereunder, BNPLC must
also elect a Voluntary Retention of the Property under and as defined
in ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇ Agreement.
(b) Second, if the Building 3 Third Party Price actually
paid by an Applicable Purchaser to BNPLC on the Designated Sale Date
exceeds the Building 3 Break Even Amount, Zhone 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 Zhone to BNPLC under
the other Building 3 Operative Documents. (In no event shall BNPLC be
entitled to retain any such excess to recover any part of BNPLC's
investment in the Buildings 1&2 Property that the Buildings 1&2
Operative Documents do not entitle BNPLC to recover from Zhone.)
(3) If for any reason whatsoever neither Zhone nor an Applicable
Purchaser pays to BNPLC a net cash price for the Building 3 Property (or
allocated thereto as described in subparagraph 1(B)(2)) on the Designated
Sale Date equal to or in excess of the Building 3 Break Even Amount
pursuant to this Agreement, then Zhone shall have the obligation (the
"Building 3 Supplemental Payment Obligation") to pay to BNPLC on the
Designated Sale Date a supplemental payment (the "Building 3 Supplemental
Payment") equal to the lesser of (1) the amount by which the Building 3
Break Even Amount on the Designated Sale Date exceeds such net cash price
(if any) for the Building 3 Property (or allocated thereto) 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 equal to the product of (i) Stipulated Loss Value on the
Designated Sale Date, times (ii) 100% minus the Residual Risk Percentage;
[Improvements - Building 3] 2
provided, however, that the "Maximum Remarketing Obligation" will equal the
Building 3 Break Even Amount, if (but only if):
(x) Zhone shall have elected to accelerate the
Designated Sale Date as provided in clause (2) of the definition
of Designated Sale Date in the Building 3 CDPA when no "Event of
Default" under and as defined in the Buildings 1&2 Lease
Agreement has occurred and is continuing; or
(y) an "Event of Default" under and as defined in the
Building 3 Lease has occurred and is continuing on the Designated
Sale Date, other than an Issue 97-1 Non-performance-related
Subjective Event of Default or a ▇▇▇▇▇▇▇▇▇ ▇&▇ ▇▇▇▇▇-▇▇▇▇▇▇▇.
BNPLC acknowledges that the proviso at the end of the preceding sentence
shall not cause the Maximum Remarketing Obligation to exceed the product of
(i) Stipulated Loss Value on the Designated Sale Date, times (ii) 100%
minus the Residual Risk Percentage, solely by reason of an Issue 97-1 Non-
performance-related Subjective Event of Default or a Buildings 1&2 Cross-
Default.
Without limiting the generality of the foregoing, the Building 3
Supplemental Payment shall be required even if BNPLC does not sell the
Building 3 Property to Zhone or an Applicable Purchaser on the Designated
Sale Date because of (A) a Voluntary Retention of the Property, or (B) a
failure of Zhone to exercise, or decision by Zhone not to exercise, the
Purchase Option or Zhone's Initial Remarketing Rights in accordance with
the terms and conditions set forth in subparagraph 4(D) and other
provisions of this Agreement. If any Building 3 Supplemental Payment or
portion thereof is not actually paid to BNPLC on the Designated Sale Date,
Zhone shall pay interest on the past due amount computed at the Default
Rate from the Designated Sale Date. Zhone acknowledges that it is
undertaking the Building 3 Supplemental Payment Obligation in consideration
of the rights afforded to it by this Agreement, but that such obligation is
not contingent upon any exercise by Zhone of such rights or upon any
purchase of the Building 3 Property by Zhone or an Applicable Purchaser.
(B) Determinations Concerning Price and the Supplemental Payment.
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(1) Determination of the Building 3 Break Even Amount. As used
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herein, "Building 3 Break Even Amount" means an amount equal to Stipulated
Loss Value, plus any out-of-pocket costs and expenses (including appraisal
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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 Building 3 Property under this Agreement or in connection
with collecting payments due hereunder, and plus an amount equal to the
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Balance of Unpaid Construction-Period Indemnity Payments, but less the
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aggregate amounts (if any) of Direct Payments to Participants and Deposit
Taker Losses. As used herein, the "Balance of Unpaid Construction-Period
Indemnity Payments" means an amount equal to the sum of Construction-Period
Indemnity Payments, if any, that Zhone declined to pay pursuant to
subparagraph 5(d)(ii) of the Building 3 Lease, plus interest accruing at
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the Default Rate, compounded annually, on each such payment from the date
such payment would have become due but for Zhone's right to decline to pay
it as described in subparagraph 5(d)(ii) of the Building 3 Lease. If,
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however, Losses for which Zhone has so declined to pay any Construction-
Period Indemnity Payment consist of claims against BNPLC or another
Interested Party that have not been liquidated prior to the Designated Sale
Date (and, thus, such Losses have yet to be fixed in amount as of the
Designated Sale Date), then Zhone may elect to exclude any Construction-
Period Indemnity Payment attributable to such Losses by providing to BNPLC,
for the benefit of BNPLC and other Interested Parties, a written agreement
to indemnify and defend BNPLC and other Interested Parties against such
Losses. To be effective hereunder for purposes of reducing the Balance of
Unpaid Construction-Period Indemnity
[Improvements - Building 3] 3
Payments (and, thus, the Building 3 Break Even Amount), any such written
indemnity must be fully executed and delivered by Zhone on or prior to the
Designated Sale Date, must include provisions comparable to subparagraphs
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5(c)(ii), (iii), (iv) and (v) of the Building 3 Lease and otherwise must be
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in form and substance satisfactory to BNPLC.
(2) Determination of Building 3 Third Party Price. As used in
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subparagraph 1(A)(2)(a) and other provisions of this Agreement, "Building 3
Third Party Price" means the amount determined as follows:
(a) For purposes of both ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇ Agreement
and this Agreement, Zhone may give a notice (a "Remarketing Notice")
to BNPLC and to each of the Participants no earlier than one hundred
eighty days before the Designated Sale Date and no later than twenty
days before the Designated Sale Date, specifying (i) an amount as the
Buildings 1&2 Third Party Price that Zhone believes in good faith to
constitute reasonably equivalent value for the Buildings 1&2 Property
and any Buildings 1&2 Escrowed Proceeds, and (ii) an amount as the
Building 3 Third Party Price that Zhone believes in good faith to
constitute reasonably equivalent value for the Building 3 Property and
any Building 3 Escrowed Proceeds. Once given, a Remarketing Notice
shall not be rescinded, replaced or modified without BNPLC's written
consent. If (1) the Buildings 1&2 Third Party Price specified by Zhone
in a Remarketing Notice, when added to any Buildings 1&2 Supplemental
Payment that Zhone must pay to BNPLC on the Designated Sale Date, is
equal to or greater than the Buildings 1&2 Break Even Amount
calculated on the Designated Sale Date, and (2) the Building 3 Third
Party Price specified by Zhone in the same Remarketing Notice, when
added to any Building 3 Supplemental Payment that Zhone must pay to
BNPLC on the Designated Sale Date, is equal to or greater than the
Building 3 Break Even Amount calculated on the Designated Sale Date,
then the Remarketing Notice will control for purposes of establishing
the Buildings 1&2 Third Party Price under ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇
Agreement and for purposes of establishing the Building 3 Third Party
Price under this Agreement. Otherwise, however:
. the Buildings 1&2 Third Party Price will be established for
purposes of ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇ Agreement as the greater
of (A) any amount specified as the Buildings 1&2 Third Party
Price by Zhone in a Remarketing Notice, or (B) the lesser of (i)
the Buildings 1&2 Break Even Amount, or (ii) the Assumed
Conditions Market Value (as defined below) allocated to ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇; and
. the Building 3 Third Party Price will be established for purposes
of this Agreement as the greater of (A) any amount specified as
the Building 3 Third Party Price by Zhone in a Remarketing
Notice, or (B) the lesser of (i) the Building 3 Break Even
Amount, or (ii) the Assumed Conditions Market Value allocated to
the Building 3 Property.
As used in this Agreement (and in ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇
Agreement) "Assumed Conditions Market Value" means (and all appraisers
and other persons involved in the determination of the Assumed
Conditions Market Value 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 Combined
Properties, calculated under the assumptions (whether or not then
accurate) that Zhone's representations in the Buildings 1&2 Operative
Documents and the Building 3 Operative Documents are true and correct;
that Zhone has complied with all of the requirements of the Buildings
1&2 Operative Documents and Building 3 Operative Documents, including
requirements to maintain the Combined Properties in compliance with
Applicable Laws [including Environmental Laws], and has completed the
repairs or restoration
[Improvements - Building 3] 4
which according to the Buildings 1&2 Lease or the Building 3 Lease
Zhone will provide after any damage or destruction of the Combined
Properties by fire or other casualty or after any partial taking of
the Combined Properties or any conveyance in lieu of such a partial
taking; that no lien or other encumbrance against the Combined
Properties exists other than Permitted Encumbrances; that Zhone, as
the owner or lessee of any other property in the vicinity of the
Combined Properties, will cooperate to permit the future development
or use thereof in accordance with the requirements of the Closing
Certificate and Agreement; that the construction, use and maintenance
of Improvements on the Land that are contemplated in the Operative
Documents will not be hindered or delayed because of any failure of
Zhone to plan and provide for adequate utilities, water and parking;
and that any purchaser of the Combined Properties will receive copies
of Zhone's books and records which are necessary or useful to a future
owner's or occupant's use of the Combined Properties. After it is
calculated for the Combined Properties, taken together, the Assumed
Conditions Market Value will be allocated, for purposes of this
Agreement and ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇ Agreement (and all appraisers
and other persons involved in the determination of the Assumed
Conditions Market Value will be so advised), between the Buildings 1&2
Property and the Building 3 Property as if each was a stand-alone
facility benefitted by easements and restrictive covenants that
provide for ingress, egress, parking, utilities and lateral support
and that provide for common area maintenance and security, the
maintenance of appropriate insurance, the application of insurance
proceeds, the application of condemnation proceeds and the fair and
appropriate allocation of shared costs, all as may be necessary or
appropriate for the normal operation, maintenance, repair, improvement
and ownership of the Buildings 1&2 Property and the Building 3
Property in order that such properties could, if separately owned,
share the common facilities that they actually do share or are
designed to share. In no event will the Assumed Conditions Market
Value so allocated to the Buildings 1&2 Property plus the Assumed
Conditions Market Value so allocated to the Building 3 Property be
less than the Assumed Conditions Market Value of the Combined
Properties.
(b) If concerned that a Remarking Notice alone will not be
determinative of the Buildings 1&2 Third Party Price and the Building
3 Third Party Price as provided in subparagraph (a), Zhone may, for
purposes of both ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇ Agreement and this
Agreement, give a notice (an "Appraisal Notice") to BNPLC and to each
of the Participants no earlier than one hundred eighty days before the
Designated Sale Date and no later than twenty days before the
Designated Sale Date, stating that Zhone elects to have made a
determination of Assumed Conditions Market Value and an allocation
thereof between the Buildings 1&2 Property and the Building 3
Property, in accordance with the following procedures (the "Appraisal
Procedures"):
(1) Zhone and BNPLC shall each appoint a real estate
appraiser who is familiar with properties in the vicinity of the
Combined Properties. 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 these provisions has been
invoked. The agreement of the two appraisers as to the amount of
Assumed Conditions Market Value and the allocation thereof
between the Buildings 1&2 Property and the Building 3 Property
will be binding upon Zhone and BNPLC. If the two appraisers do
not, however, agree upon Assumed Conditions Market Value or the
allocation thereof within thirty 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 Assumed Conditions Market Value and the allocation
thereof between the Buildings 1&2 Property and the Building 3
Property
[Improvements - Building 3] 5
(together with a written report supporting such estimate) to the
third appraiser and the third appraiser will choose between the
two estimates. The estimate chosen by the third appraiser will be
binding upon Zhone and BNPLC. Notification in writing of the
Assumed Conditions Market Value and the allocation thereof shall
be made to Zhone and BNPLC within thirty days following the
selection of the third appraiser.
(2) If appraisers must be selected under the procedure set
out above and either BNPLC or Zhone 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 Assumed Conditions Market Value and
the proper allocation thereof. All appraisers selected for these
Appraisal Procedures will be disinterested, reputable, qualified
real estate appraisers with the designation of MAI or equivalent
and with at least 10 years experience in appraising properties
comparable to the Land in the San Francisco Bay area.
(3) If a third appraiser must be chosen under the Appraisal
Procedures 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 with BNPLC or Zhone, 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 Zhone or BNPLC may require the
first two appraisers to immediately submit his or her 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 Zhone
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 be
instructed to do so within ten days after such choices are
submitted to him.
(4) Either Zhone or BNPLC may notify the appraiser selected
by the other party to demand the submission of an estimate of
Assumed Conditions Market Value and the allocation thereof 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 Assumed Conditions Market Value and allocation
thereof, 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 Zhone and BNPLC.
All appraisal and other costs of the Appraisal Procedures shall be
paid by Zhone.
(c) If for any reason whatsoever, including any acceleration of
the Designated Sale Date, the Building 3 Third Party Price is not
established before the Designated Sale Date by a Remarketing Notice
alone pursuant to subparagraph (a) and is not otherwise established
before the Designated Sale Date by the Appraisal Procedures outlined
in subparagraph (b), then the Building 3 Third Party Price will, for
purposes of subparagraph 1(A)(2)(a), be the amount equal to the lesser
of (1) the Building 3 Break Even Amount on the Designated Sale Date,
or (2) the Assumed Conditions Market Value allocable to the Building 3
Property as determined by BNPLC in its sole good faith discretion.
Without limiting the foregoing, for the purposes of determining the
Building 3 Third Party Price pursuant to the preceding sentence, BNPLC
shall be entitled to determine in its sole good faith discretion the
amount of the Assumed Conditions Market Value and the allocation
thereof between the Buildings 1&2 Property and the Building 3
[Improvements - Building 3] 6
Property. Further, any determinations of BNPLC pursuant to this
subparagraph (c) will also control for purposes of establishing the
Assumed Conditions Market Value and allocation thereof as elements of
the Minimum Extended Remarketing Price (as defined below); provided,
however, that if Zhone did deliver an Appraisal Notice at least twenty
days prior to the Designated Sale Date, then Zhone may require the
continuation of the Appraisal Procedures outlined in subparagraph (b)
after the Designated Sale Date only for the purpose of establishing
the Minimum Extended Remarketing Price hereunder and the Minimum
Extended Remarketing Price under and as defined in ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇&▇
▇▇▇▇▇▇▇▇ Agreement. Effective upon, but only upon, any conclusion of
the Appraisal Procedures after the Designated Sale Date, BNPLC's
determination of the Assumed Conditions Market Value and of the
allocation thereof between the Buildings 1&2 Property and the Building
3 Property will be superseded by the determinations thereof made in
accordance with the Appraisal Procedures for purposes of calculating
the Minimum Extended Remarketing Price.
(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"), Zhone 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 Building 3 Property pursuant to
this Agreement. If for any reason Zhone fails to so specify a party who will in
accordance with the terms and conditions set forth herein purchase the Building
3 Property (be it Zhone itself, an Affiliate of Zhone 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 Zhone finally does so specify a party, but such postponement will not
relieve or postpone or affect the obligation of Zhone to make a Building 3
Supplemental Payment as provided in Paragraph 1(A)(3).
(D) Effect of the Purchase Option and Zhone's Initial Remarketing
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Rights on Subsequent Title Encumbrances. Any conveyance of the Building 3
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Property to Zhone or any Applicable Purchaser pursuant to this Paragraph 1(A)
shall cut off and terminate any interest in the Building 3 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 Building 3 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 Zhone to BNPLC under the Building 3 Operative Documents or the Other
Operative Documents (including obligations arising under the indemnities in the
Building 3 Lease). Anyone accepting or taking any interest in the Building 3
Property by or through BNPLC after the date of this Agreement shall acquire such
interest subject to the Purchase Option and Zhone's Initial Remarketing Rights.
Further, Zhone and any Applicable Purchaser shall be entitled to pay any payment
required by this Agreement for the purchase of the Building 3 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 Building 3
Property, and neither Zhone 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 Zhone 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
Zhone's rights under this Agreement, including its rights under this
subparagraph.
(E) Security for the Purchase Option and Zhone's Initial Remarketing
----------------------------------------------------------------
Rights. To secure BNPLC's obligation to sell the Building 3 Property pursuant
------
to Paragraph 1(A) and to pay any damages to Zhone 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 Zhone a lien and security
interest against all rights, title and interests of BNPLC from time to time in
and to the Building 3 Property. Zhone may enforce such lien and security
interest judicially after any
[Improvements - Building 3] 7
such breach by BNPLC, but not otherwise. Contemporaneously with the execution of
this Agreement, Zhone 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 Zhone shall be entitled to record such memorandum at
any time prior to the Designated Sale Date. However, nothing in this
subparagraph shall be construed as a waiver by Zhone of any right Zhone 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.
(F) Delivery of Books and Records If BNPLC Retains the Building 3
-------------------------------------------------------------
Property. Unless Zhone or its Affiliate or another Applicable Purchaser
--------
purchases the Building 3 Property pursuant to Paragraph 1(A), promptly after the
Designated Sale Date Zhone shall deliver to BNPLC copies of all plans and
specifications for the Building 3 Property prepared in connection with the
construction contemplated by the Construction Management Agreement and the
Building 3 Lease, together with all other books and records of Zhone which will
be necessary or useful to any future owner's or occupant's use of the Building 3
Property.
2 Zhone's Rights and Options After the Designated Sale Date.
(A) Zhone's Extended Right to Remarket. During the two years
----------------------------------
following the Designated Sale Date ("Zhone's Extended Remarketing Period"),
Zhone shall have the right ("Zhone's Extended Remarketing Right") to cause an
Applicable Purchaser who is not an Affiliate of Zhone to purchase the Building 3
Property for a cash purchase price not below the Minimum Extended Remarketing
Price (as defined below). Zhone's Extended Remarketing Right shall, however, be
subject to all of the following conditions:
(1) The Building 3 Property and BNPLC's interest in Building 3
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(C).
(2) No Voluntary Retention of the Property shall have occurred
as described in subparagraph 1(A)(2)(a).
(3) Zhone's Extended Remarketing Right shall not have been
terminated pursuant to subparagraph 4(C) below because of Zhone's failure
to make any Building 3 Supplemental Payment required on the Designated Sale
Date.
(4) Zhone's Extended Remarketing Right shall not have been
terminated by BNPLC pursuant to subparagraph 4(E) below to facilitate
BNPLC's sale of the Building 3 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 Building 3 Property to an Applicable Purchaser because of
Zhone's exercise of Zhone's Extended Remarketing Right (the "Final Sale
Date"), Zhone shall have notified BNPLC of (x) the date proposed by Zhone
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 Building 3 Property.
(6) Zhone shall have satisfied the obligations imposed upon it
by
[Improvements - Building 3] 8
subparagraph 4(D).
(7) The sale of the Building 3 Property to the Applicable
Purchaser hereunder, or the simultaneous sale of the Buildings 1&2 Property
to the Applicable Purchaser under ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇ Agreement as
required by subparagraph 4(D), shall generate excess sale proceeds to which
Zhone is entitled under subparagraph 2(D) of this Agreement or under
subparagraph 2(D) of ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇ Agreement or under both
subparagraphs.
(B) Definition of Minimum Extended Remarketing Price. As used
------------------------------------------------
herein, "Minimum Extended Remarketing Price" means, subject to reduction as
provided in subparagraph 2(C) below (if applicable), an amount equal to the sum
of the following:
(1) the lesser of (a) the amount by which the Building 3 Break
Even Amount on the Designated Sale Date exceeds any Building 3 Supplemental
Payment actually paid to BNPLC on the Designated Sale Date itself, or (b)
the Assumed Conditions Market Value allocated to the Building 3 Property as
of the Designated Sale Date, determined as described in subparagraph
1(B)(2), plus
----
(2) interest on the lesser of the amounts described in the
preceding clause (1) computed at the Default Rate for the period commencing
on the Designated Sale Date and ending on the Final Sale Date, plus
----
(3) 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 the Minimum Extended
Remarketing Price, and plus
--------
(4) 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, construction or maintenance
of the Building 3 Property on or after the Designated Sale Date (except to
the extent already reimbursed by any lessee of the Building 3 Property
after the Designated Sale Date), together with interest on such
Impositions, insurance premiums and other Losses computed at the Default
Rate from the date paid or incurred to the Final Sale Date.
If, however, Losses described in the preceding clause (4) 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 Zhone 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 Building 3 Break Even Amount), any such
written indemnity must be fully executed and delivered by Zhone on or prior to
the Final Sale Date, must include provisions comparable to subparagraphs
-------------
5(c)(ii), (iii), (iv) and (v) of the Building 3 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
---------------------
Building 3 Property has not already been sold by BNPLC pursuant to Paragraph 1
or this Paragraph 2, BNPLC shall have the right to sell the Combined Properties
or offer the Combined Properties 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 Zhone's Extended
Remarketing Rights specified in subparagraph 2(A) continue to be satisfied:
(1) BNPLC shall not sell the Combined Properties to an Affiliate
of BNPLC on
[Improvements - Building 3] 9
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 Combined Properties 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 Zhone with a notice (the "Third Party Sale
Notice") explaining that:
(A) if BNPLC and the prospective purchaser reach agreement
on other terms and conditions to be incorporated into a definitive
purchase and sale agreement, BNPLC is then prepared to accept (i) a
price for the Buildings 1&2 Property (or allocated thereto) not below
an amount specified in such Third Party Sale Notice (the "Buildings
1&2 Third Party Target Price"), and (ii) a price for the Building 3
Property (or allocated thereto) not below an amount specified in such
Third Party Sale Notice (the "Building 3 Third Party Target Price");
and
(B) Zhone's Extended Remarketing Right may be terminated
pursuant to subparagraph 4(E) of this Agreement, and Zhone's Extended
Remarketing Right under and as defined in ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇
Agreement may be terminated pursuant to subparagraph 4(E) thereof,
unless within ninety days after the date of such Third Party Sale
Notice Zhone causes an Applicable Purchaser to consummate a purchase
of the Combined Properties under Paragraph 2 of this Agreement and
Paragraph 2 of ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇ Agreement; and
(3) If BNPLC does sell the Combined Properties to a third party
pursuant to this subparagraph during Zhone's Extended Remarketing Period,
then for purposes of subparagraphs 2(D) and 4(E) of this Agreement and of
subparagraphs 2(D) and 4(E) of ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇ Agreement, BNPLC
may allocate the total price paid by the third party for the Combined
Properties between the Buildings 1&2 Property and the Building 3 Property
in accordance with any agreement for the allocation reached by BNPLC and
the third party. Absent such an agreement, however, the total price paid
by the third party for the Combined Properties will be allocated between
the Buildings 1&2 Property and the Building 3 Property in the same
proportion that the Assumed Conditions Market Value of the Combined
Properties is allocated pursuant to this Agreement and ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇&▇
▇▇▇▇▇▇▇▇ Agreement.
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 Building 3 Third Party Target Price
specified by BNPLC therein. Accordingly, if BNPLC has delivered a Third Party
Sale Notice specifying a Building 3 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
Building 3 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) Zhone's Right to Excess Sales Proceeds. If the cash price
--------------------------------------
actually paid to BNPLC by any third party for the Building 3 Property (or
allocated thereto) during Zhone's Extended Remarketing Period, including any
price paid by an Applicable Purchaser purchasing from BNPLC pursuant to this
Paragraph 2,
[Improvements - Building 3] 10
exceeds the Minimum Extended Remarketing Price (calculated as provided in
subparagraph 2(B), without reduction pursuant to subparagraph 2(C)), then Zhone
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 Zhone to BNPLC
under any of the Building 3 Operative Documents or the Other Operative
Documents. (But in no event shall BNPLC be entitled to retain any such excess to
recover any part of BNPLC's investment in the Buildings 1&2 Property that the
Buildings 1&2 Operative Documents do not entitle BNPLC to recover from Zhone.)
(E) Permitted Transfers During Zhone's Extended Remarketing Period.
--------------------------------------------------------------
Any "Permitted Transfer" described in clause (6) of the definition thereof in
----------
the Building 3 CDPA to an Affiliate of BNPLC or that covers BNPLC's entire fee
estate in the Improvements included in the Building 3 Property will be subject
to Zhone's Extended Remarketing Right if, at the time of the Permitted Transfer,
Zhone'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 Zhone'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 Zhone's Extended Remarketing Right,
though following the conveyance of the lesser estate, Zhone's Extended
Remarketing Right may continue to apply to BNPLC's remaining interest in the
Building 3 Property.
3 Terms of Conveyance Upon Purchase. As necessary to consummate any
sale of the Building 3 Property to Zhone or an Applicable Purchaser pursuant to
this Agreement, BNPLC must, subject to any postponement permitted by
subparagraph 1(C) and to Zhone's satisfaction of its obligations set forth in
subparagraph 4(D), immediately 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 Building 3
Property to Zhone 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 Building 3
Operative Documents and the Other Operative Documents, including rights to any
payments then due from Zhone 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 Zhone 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 (conveying both the Buildings 1&2 Property and the
Building 3 Property simultaneously to the same grantee as required to satisfy
the condition set forth in subparagraph 4(D)) in the form attached as Exhibit
-------
B-1 or Exhibit B-2 or Exhibit B-4, as required by Exhibit B, (2) if required by
--- ----------- -----------
Exhibit B, an extension of the Land Lease in the form attached as Exhibit B-3,
--------- -----------
(3) a ▇▇▇▇ of Sale and Assignment in the form attached as Exhibit C, (4) an
---------
Acknowledgment of Disclaimer of Representations and Warranties, in the form
attached as Exhibit D, which Zhone or the Applicable Purchaser must execute and
---------
return to BNPLC, (5) a Secretary's Certificate in the form attached as Exhibit
-------
E, and (6) a certificate concerning tax withholding in the form attached as
-
Exhibit F. If for any reason BNPLC fails to tender the Sale Closing Documents
---------
as required by this ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ may cure such refusal at any time before
thirty days after receipt of a demand for such cure from Zhone.
4 Survival and Termination of the Rights and Obligations of Zhone and
BNPLC.
(A) Status of this Agreement Generally. Except as expressly provided
----------------------------------
herein, this Agreement shall not terminate; nor shall Zhone have any right to
terminate this Agreement; nor shall Zhone be entitled to any reduction of the
Building 3 Break Even Amount, any Deficiency, the Maximum Remarketing
Obligation, any Building 3 Supplemental Payment or the Minimum Extended
Remarketing Price hereunder; nor shall the obligations of Zhone to BNPLC under
Paragraph 1 be affected, by reason of (i) any damage to or the
[Improvements - Building 3] 11
destruction of all or any part of the Building 3 Property from whatever cause
(though it is understood that Zhone will receive any remaining Building 3
Escrowed Proceeds yet to be applied as provided in the Building 3 Lease that may
result from such damage if Zhone purchases the Building 3 Property and the
Building 3 Escrowed Proceeds as herein provided), (ii) the taking of or damage
to the Building 3 Property or any portion thereof by eminent domain or otherwise
for any reason (though it is understood that Zhone will receive any remaining
Building 3 Escrowed Proceeds yet to be applied as provided in the Building 3
Lease that may result from such taking or damage if Zhone purchases the Building
3 Property and the Building 3 Escrowed Proceeds as herein provided), (iii) the
prohibition, limitation or restriction of Zhone's use of all or any portion of
the Building 3 Property or any interference with such use by governmental action
or otherwise, (iv) any eviction of Zhone or any party claiming under Zhone by
paramount title or otherwise, (v) Zhone's prior acquisition or ownership of any
interest in the Building 3 Property, (vi) any default on the part of BNPLC under
this Agreement, the Building 3 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 obligation of Zhone to make any Building 3
Supplemental Payment as provided in Paragraph 1 shall be a separate and
independent covenant and agreement from BNPLC's obligations under this Agreement
or any other agreement between BNPLC and Zhone; 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. Nothing in this subparagraph shall be construed as a
waiver by Zhone of any right Zhone 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) Election by Zhone to Terminate the Building 3 Supplemental
----------------------------------------------------------
Payment Obligation Prior to the Designated Sale Date and the Building 3 Base
----------------------------------------------------------------------------
Rent Commencement Date. At any time prior to the Building 3 Base Rent
----------------------
Commencement Date, Zhone may elect to terminate its Building 3 Supplemental
Payment Obligation, subject to the following conditions:
(1) To be effective, any such election to terminate must be made by
giving notice thereof to BNPLC and the Participants in the form attached as
Exhibit G (a) prior to the Building 3 Base Rent Commencement Date and (b)
---------
only after (x) Zhone shall have given Notice of Zhone's Election to
Terminate pursuant to Paragraph 4(D) of the Construction Management
--------------
Agreement, (y) BNPLC shall have given any FOCB Notice as provided in
Paragraph 4(E) of the Construction Management Agreement, or (z) BNPLC shall
--------------
have given notice of its election to accelerate the Designated Sale Date
when an Event of Default has occurred and is continuing as provided in
clause (3) of the definition of Designated Sale Date in the Building 3
CDPA.
(2) No termination pursuant to this subparagraph 4(B) shall be
effective, notwithstanding any notice Zhone may have given as described in
the preceding clause (1), unless contemporaneously with the giving of the
notice (and in any event prior to both the Designated Sale Date and the
Building 3 Base Rent Commencement Date) Zhone shall deliver to BNPLC an
Issue 97-10 Prepayment.
(3) If for any reason whatsoever, including any bona fide dispute
over the amount of any required Issue 97-10 Prepayment, BNPLC does not
receive both the notice described in the preceding clause (1) and a full
Issue 97-10 Prepayment as described in the preceding clause (2) prior to
both the Building 3 Supplemental Payment Date and the Building 3 Base Rent
Commencement Date, then without any notice or other action by the parties
to this Agreement Zhone shall cease to have any option
[Improvements - Building 3] 12
to terminate the Building 3 Supplemental Payment Obligation pursuant to
this subparagraph 4(B). Zhone may, however, pay any amount claimed by BNPLC
to constitute a required Issue 97-10 Prepayment in order to preserve
Zhone's option to terminate the Building 3 Supplemental Payment Obligation
without waiving its right to continue any bona fide dispute over such
amount and without waiving its right to recover any excess paid to BNPLC if
Zhone subsequently establishes that the amount claimed by BNPLC was
excessive.
(C) Automatic Termination of Zhone's Rights.
---------------------------------------
(1) Without limiting BNPLC's right to enforce Zhone's obligation to
pay any Building 3 Supplemental Payment or other amounts required by this
Agreement, the Purchase Option, Zhone's Initial Remarketing Rights and
Zhone's Extended Remarketing Rights shall all terminate automatically if
BNPLC shall elect a Voluntary Retention of the Property as provided in
subparagraph 1(A)(2)(a).
(2) Without limiting BNPLC's right to enforce Zhone's obligation to
pay any Building 3 Supplemental Payment or other amounts required by this
Agreement, the Purchase Option, Zhone's Initial Remarketing Rights and
Zhone's Extended Remarketing Rights shall all terminate automatically if
Zhone shall fail to pay the full amount of any Building 3 Supplemental
Payment required by subparagraph 1(A)(3) on the Designated Sale Date. If,
however, the Building 3 Supplemental Payment Obligation is effectively
terminated pursuant to subparagraph 4(B) prior to the Designated Sale Date,
thereby excusing Zhone from the obligation to make any Building 3
Supplemental Payment that would otherwise be required by subparagraph
1(A)(3), then neither the Purchase Option, nor Zhone's Initial Remarketing
Rights nor Zhone's Extended Remarketing Rights will automatically terminate
pursuant to this subparagraph 4(C)(2). Further, notwithstanding anything in
this subparagraph 4(C) to the contrary, even after a failure to pay any
required Building 3 Supplemental Payment on the Designated Sale Date, on
any Business Day within thirty days after the Designated Sale Date Zhone or
its designee may tender to BNPLC the full Building 3 Break Even Amount
(calculated as of the Designated Sale Date) and the full Buildings 1&2
Break Even Amount (calculated as of the Designated Sale Date), together
with interest on the total Building 3 Break Even Amount and Buildings 1&2
Break Even Amount computed at the Default Rate from the Designated Sale
Date to the date of tender, and together with all other amounts then due
under any of the Building 3 Operative Documents and the Other Operative
Documents, and if presented with such a tender within thirty days after the
Designated Sale Date, BNPLC must accept the tender and promptly thereafter
deliver to Zhone or its designee all Buildings 1&2 Escrowed Proceeds (if
any), Building 3 Escrowed Proceeds (if any), the Buildings 1&2 Sale Closing
Documents listed in Paragraph 3 of ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇ Agreement and
the Building 3 Sale Closing Documents required by Paragraph 3 of this
Agreement.
(D) Conditions to Zhone's Rights Relative to State and Local
--------------------------------------------------------
Subdivision Requirements. Simultaneously with any sale hereunder of the
------------------------
Building 3 Property by BNPLC to Zhone because of Zhone's exercise of the
Purchase Option, Zhone must also acquire, on and subject to the terms and
conditions set forth in ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇ Agreement, the Buildings 1&2
Property. Simultaneously with any sale hereunder of the Building 3 Property by
BNPLC to an Applicable Purchaser because of Zhone's exercise of the Purchase
Option, Zhone's Initial Remarketing Right or Zhone's Extended Remarketing Right,
Zhone must cause the same Applicable Purchaser to acquire, on and subject to the
terms and conditions set forth in ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇ Agreement, the
Buildings 1&2 Property. If, in addition to the simultaneous acquisition of both
the Combined Properties by the same purchaser, other requirements of state or
local subdivision laws and ordinances must be satisfied to permit a lawful
conveyance by BNPLC of the Building 3 Property in connection with Zhone's
exercise of the Purchase Option, Zhone's Initial Remarketing Right or Zhone's
Extended Remarketing Right, then Zhone must also comply or cause an Applicable
Purchaser to comply with such other requirements. Zhone's right to require any
tender by BNPLC of the Sale Closing Documents in connection with
[Improvements - Building 3] 13
Zhone's exercise of the Purchase Option, Zhone's Initial Remarketing Right or
Zhone's Extended Remarketing Right shall be conditioned upon Zhone's
satisfaction of the requirements of this subparagraph 4(D). Nothing contained in
this subparagraph 4(D) shall be construed to obligate Zhone to exercise its
Purchase Option, Zhone's Initial Remarketing Rights or Zhone's Extended
Remarketing Rights or shall create any claim on the part of BNPLC against Zhone
in the event Zhone does not exercise its Purchase Option, Zhone's Initial
Remarketing Rights or Zhone's Extended Remarketing Rights, for payment of any
sum other than the Building 3 Supplemental Payment as provided in subparagraph
1(A)(3).
(E) Termination of Zhone's Extended Remarketing Rights to Permit a
--------------------------------------------------------------
Sale by BNPLC. At any time after the Designated Sale Date and more than ninety
-------------
days after BNPLC has delivered a Third Party Sale Notice to Zhone as described
in subparagraph 2(C)(2), BNPLC may terminate Zhone's Extended Remarketing Rights
(both under and as defined in this Agreement and under and as defined in ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇ Agreement) contemporaneously with the consummation of a
sale of the Combined Properties by BNPLC to any third party (be it the
prospective purchaser named in the Third Party Sale Notice or another third
party). However, as a condition to such termination, (1) the price paid by the
third party to BNPLC for the Buildings 1&2 Property (or allocated thereto) must
equal or exceed the Buildings 1&2 Third Party Target Price specified in the
Third Party Sale Notice, and (2) the price paid by the third party to BNPLC for
the Building 3 Property (or allocated thereto) must equal or exceed the Building
3 Third Party Target Price specified in the Third Party Sale Notice. This
subparagraph is intended to establish the requirements for a sale by BNPLC of
the Combined Properties, unencumbered by Zhone's Extended Remarketing Rights,
pursuant to subparagraph 2(C).
(F) Payment Only to BNPLC. Except for Direct Payments to
---------------------
Participants, all amounts payable under this Agreement by Zhone 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. (This provision shall not, however, limit Zhone's right to deduct
Deposit Taker Losses when calculating the Building 3 Break Even Amount, as
provided in subparagraph 1(B)(1).) In addition to any payments required under
subparagraph 1(A), on the Designated Sale Date Zhone must pay all amounts then
due to BNPLC under the Building 3 Operative Documents or under the Other
Operative Documents.
(G) Remedies Under the other Operative Documents. No repossession
--------------------------------------------
of or re-entering upon the Building 3 Property or exercise of any other remedies
available to BNPLC under the other Building 3 Operative Documents or the Other
Operative Documents shall terminate Zhone's rights or obligations hereunder, all
of which shall survive BNPLC's exercise of remedies under those other documents.
Zhone acknowledges that the consideration for this Agreement is separate and
independent of the consideration for the Building 3 Lease, the Construction
Management Agreement and the Closing Certificate, and Zhone's obligations
hereunder shall not be affected or impaired by any event or circumstance that
would excuse Zhone from performance of its obligations under such other Building
3 Operative Documents or any of the Other Operative Documents.
(H) Occupancy by Zhone Prior to Closing of a Sale. Prior to the
---------------------------------------------
closing of any sale of the Building 3 Property to Zhone or an Applicable
Purchaser hereunder, Zhone's occupancy of the Building 3 Land and Building 3
Improvements and its use of the Building 3 Property shall continue to be subject
to the terms and conditions of the Building 3 Lease, including the terms setting
forth Zhone's obligation to pay rent, prior to any termination or expiration of
the Building 3 Lease pursuant to its express terms and conditions.
(I) Preferential Payments to BNPLC. 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 Building 3 Supplemental Payment or
increased or had the
[Improvements - Building 3] 14
effect of increasing any excess sale proceeds paid to Zhone pursuant to
subparagraph 1(A)(2)(b) or pursuant to subparagraph 2(D), then Zhone shall pay
to BNPLC upon demand an amount equal to the reduction of the Building 3
Supplemental Payment or to the increase of the excess sale proceeds paid to
Zhone, as applicable, and this Agreement shall continue to be effective or shall
be reinstated as necessary to permit BNPLC to enforce its right to collect such
amount from Zhone.
5 Security for Zhone's Obligations; Return of Funds. Zhone's
obligations under this Agreement are secured by the Building 3 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 Building 3 Pledge
Agreement shall be entitled to hold all Collateral as security for the full and
faithful performance by Zhone of Zhone's covenants and obligations under this
Agreement, the Collateral shall not be considered an advance payment of the
Building 3 Break Even Amount or any Building 3 Supplemental Payment or a measure
of BNPLC's damages should Zhone breach this Agreement. If Zhone 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 Zhone, 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 Zhone. If by a Permitted
Transfer BNPLC conveys its interest in the Building 3 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 Building 3 Pledge Agreement
directly to Zhone notwithstanding any prior actual or attempted conveyance or
assignment by Zhone, voluntary or otherwise, of any right to receive the same;
neither BNPLC nor the collateral agent named in the Building 3 Pledge Agreement
shall be responsible for the proper distribution or application by Zhone of any
such Collateral returned to Zhone; and any such return of Collateral to Zhone
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 Building 3 Escrowed Proceeds it holds on the Designated
Sale Date directly to Zhone or to any Applicable Purchaser purchasing BNPLC's
interest in the Building 3 Property and the Building 3 Escrowed Proceeds
pursuant to this Agreement notwithstanding any prior actual or attempted
conveyance or assignment by Zhone, voluntary or otherwise, of any right to
receive the same; BNPLC shall not be responsible for the proper distribution or
application by Zhone or any Applicable Purchaser of any such Building 3 Escrowed
Proceeds paid over to Zhone or the Applicable Purchaser; and any such payment of
Building 3 Escrowed Proceeds to Zhone 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 Building 3 Property, and each and every right and
remedy shall be cumulative and in addition to any other right or remedy given
hereunder or now or hereafter existing at law or in equity or by statute. In
addition to other remedies available under this Agreement, either party shall be
entitled, to the extent permitted by applicable law, to a decree compelling
performance of any of the other party's agreements hereunder.
7 Attorneys' Fees and Legal Expenses. If either party to this Agreement
commences any legal action or other proceeding to enforce any of the terms of
this Agreement, or because of any breach by the other party or dispute
hereunder, the party prevailing in such action or proceeding shall be entitled
to recover from the other party all Attorneys' Fees incurred in connection
therewith, whether or not such controversy, claim or dispute is prosecuted to a
final judgment. Any such Attorneys' Fees incurred by either party in enforcing
a judgment in its favor under this Agreement shall be recoverable separately
from such judgment, and the obligation for such Attorneys' Fees is intended to
be severable from other provisions of this Agreement and not to be merged into
any such judgment.
[Improvements - Building 3] 15
8 Estoppel Certificate. Upon request by BNPLC, Zhone 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 Zhone has knowledge. Any such statement may be relied upon by
any Participant or prospective purchaser or assignee of BNPLC with respect to
the Building 3 Property.
9 Successors and Assigns. The terms, provisions, covenants and
conditions hereof shall be binding upon Zhone and BNPLC and their respective
permitted successors and assigns and shall inure to the benefit of Zhone and
BNPLC and all permitted transferees, mortgagees, successors and assignees of
Zhone and BNPLC with respect to the Building 3 Property; provided, that (A) the
rights of BNPLC hereunder shall not pass to Zhone or any Applicable Purchaser or
any subsequent owner claiming through Zhone or an Applicable Purchaser, (B)
BNPLC shall not assign this Agreement or any rights hereunder except pursuant to
a Permitted Transfer, and (C) Zhone shall not assign this Agreement or any
rights hereunder without the prior written consent of BNPLC.
10 Amendment and Restatement. Together, this Agreement and ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇&▇ ▇▇▇▇▇▇▇▇ Agreement amend, restate and replace the Prior Purchase Agreement
referenced in the recitals at the beginning of this agreement.
[Signature pages follow.]
[Improvements - Building 3] 16
IN WITNESS WHEREOF, Zhone and BNPLC have caused this Purchase Agreement
(Improvements - Building 3) to be executed as of August 1, 2000.
"Zhone"
ZHONE TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title: Corporate Controller
---------------------------------
[Continuation of signature pages to Purchase Agreement (Improvements - Building
3) dated to be effective as of August 1, 2000]
"BNPLC"
BNP LEASING CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇, Vice President
Exhibit A
---------
LEGAL DESCRIPTION
The real property located in the City of Oakland, County of Alameda, State of
California, described as follows:
Being a portion of Lot 12, as shown on Parcel Map No. 6003, filed in Book 205 of
Parcel Maps, at Pages 94 through 98, Alameda County Records, more particularly
described as follows:
Commencing at the most southerly corner of said Lot 12; Thence along the
southwesterly line of said ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇ (▇▇▇▇▇▇▇) 50' 24" West, 628.68 feet
to the point of beginning; Thence continuing along the southwesterly line of
said ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 50' 24" West, 1029.21 feet; Thence along the
southeasterly line of said ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 09' 36" West 14.00 feet;
Thence along the southwesterly line of said ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 50' 24"
West, 253.55 feet to the beginning of a curve, concave southwesterly, having a
radius of 392.21 feet; Thence northerly along the arc of said curve, through a
central angle of 3(degrees) 51' 45", an arc distance of 26.44 feet to the
intersection of a line drawn parallel with and 85.00 feet southeasterly of the
northwesterly line of said Lot 12, a radial line through said point bears North
52(degrees) 17' 51" East; Thence parallel with the northwesterly line of said
▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 09' 36" East, 476.93 feet to a point that is 5 feet
southwesterly of the northeasterly line of said Lot 12; Thence along a line that
is parallel with and 5 feet southwesterly of the said northeasterly line of ▇▇▇
▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 00' 30" East, 69.44 feet to the beginning of a curve,
concave southwesterly, having a radius of 1949.00 feet; Thence southeasterly
along the arc of said curve, through a central angle of 6(degrees) 10' 18", an
arc distance of 209.94 feet; Thence continuing along a line that is parallel
with and 5 feet southwesterly of the said northeasterly line of ▇▇▇ ▇▇, ▇▇▇▇▇
▇▇(▇▇▇▇▇▇▇)▇▇' ▇▇" ▇▇▇▇, 1030.61 feet to the intersection with a line drawn
perpendicular with the southwesterly line of said Lot 12, distant thereon 628.68
feet from the most southerly corner of said Lot 12; Thence southwesterly along
said perpendicular line, South 56(degrees) 09' 36" West, 480.72 feet to the
Point of Beginning.
The basis of bearings for Parcel Map No. 6003 is the North American Datum of
1983, ▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Published in 1986, as shown on Record of Survey
990, filed in Book 18 of Records of Survey, at Pages 50 through 60, Alameda
County Records. All distances in this description are grid distances. To convert
to ground distances, multiply grid distances by 1.0000708. Assessor's Parcel No.
041-3902-015 (Portion)
[Improvements - Building 3]
[SUBSTITUTE A PAGE COPIED FROM A SURVEY OF THE LAND, MARKED TO SHOW THE
"BUILDING 3 SITE" HERE.]
[Improvements - Building 3]
Exhibit B
---------
Requirements Re: Form of Grant Deed and Extension of Land Lease
The form of deed to be used to convey BNPLC's interest in the Improvements to
Zhone or an Applicable Purchaser will depend upon whether BNPLC's interest in
the Land has been or is being conveyed at the same time to the same party.
If BNPLC's interests in both the Land and the Improvements are to be conveyed to
Zhone or an Applicable Purchaser at the same time, because sales under this
▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇ Agreement and the Land
Purchase Agreement (covering the Land) are all 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 Land pursuant to the Land
Purchase Agreement has not been consummated before, and is not being consummated
contemporaneously with sales of BNPLC's interest in the Improvements under this
Building 3 Purchase Agreement and under ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇ Agreement,
then BNPLC's interest in the Improvements will be conveyed by a deed in the form
attached as Exhibit B-2. In such a case, if Zhone has requested it in writing
-----------
at least thirty days prior to the delivery of such a deed, BNPLC shall also
tender an amendment to the Land Lease in the form attached as Exhibit B-3, which
-----------
will extend the term of the Land Lease at a base rent equal to fair market
rental value of the Land, determined as provided in such amendment. In such a
case, it is understood that if Zhone designates an Applicable Purchaser to
purchase BNPLC's interest in the Improvements, Zhone may sublease the Land to
the Applicable Purchaser under (and subject to the terms and conditions of) the
Land Lease. (Presumably, the Applicable Purchaser will require a sublease of
the Land from Zhone as a condition to purchasing the Improvements.) But in no
event will BNPLC be required to do more than tender an extension of the Land
Lease (as provided in this paragraph) to facilitate the use and enjoyment of the
Improvements by Zhone or any Applicable Purchaser claiming through Zhone.
Without limiting the generality of the foregoing, it is understood that BNPLC
will not otherwise be required to grant any lease or other interest in the Land
to any such Applicable Purchaser.
Finally, BNPLC's interest in the Improvements will be conveyed by a deed in the
form attached as Exhibit B-3 if BNPLC's interest in the Land has been sold
-----------
pursuant to the Land Purchase Agreement before a sale of BNPLC's interest in the
Improvements under this Agreement and ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇ 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.
[Improvements - Building 3]
Exhibit B-1
-----------
CORPORATION GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
-------------------------
NAME: [Zhone or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE:___________________
Zip: ___________________
MAIL TAX STATEMENTS TO:
----------------------
NAME: [Zhone 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 [Zhone
or the Applicable Purchaser] ("Grantee") all of Grantor's interest in the land
situated in Oakland, 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.
[Improvements - Building 3]
BNP LEASING CORPORATION
Date: As of ____________ By: ___________________________________
Its:
Attest: ___________________________________
Its:
[Zhone 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__________________________________
[Improvements - Building 3]
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_______________________________
[Improvements - Building 3]
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 ZHONE REQUESTS BNPLC'S
CONSENT OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY
SUCH CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING
NOTE" WILL BE DELETED BEFORE THE DEED TO WHICH THIS DESCRIPTION IS ATTACHED IS
ACTUALLY EXECUTED AND DELIVERED.]
The real property located in the City of Oakland, County of Alameda, State of
California, described as follows:
Being a portion of Lot 12, as shown on Parcel Map No. 6003, filed in Book 205 of
Parcel Maps, at Pages 94 through 98, Alameda County Records, more particularly
described as follows:
Commencing at the most southerly corner of said Lot 12; Thence along the
southwesterly line of said ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 50' 24" West, 628.68 feet
to the point of beginning; Thence continuing along the southwesterly line of
said ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 50' 24" West, 1029.21 feet; Thence along the
southeasterly line of said ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 09' 36" West 14.00 feet;
Thence along the southwesterly line of said ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 50' 24"
West, 253.55 feet to the beginning of a curve, concave southwesterly, having a
radius of 392.21 feet; Thence northerly along the arc of said curve, through a
central angle of 3(degrees) 51' 45", an arc distance of 26.44 feet to the
intersection of a line drawn parallel with and 85.00 feet southeasterly of the
northwesterly line of said Lot 12, a radial line through said point bears North
52(degrees) 17' 51" East; Thence parallel with the northwesterly line of said
▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 09' 36" East, 476.93 feet to a point that is 5 feet
southwesterly of the northeasterly line of said Lot 12; Thence along a line that
is parallel with and 5 feet southwesterly of the said northeasterly line of ▇▇▇
▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 00' 30" East, 69.44 feet to the beginning of a curve,
concave southwesterly, having a radius of 1949.00 feet; Thence southeasterly
along the arc of said curve, through a central angle of 6(degrees) 10' 18", an
arc distance of 209.94 feet; Thence continuing along a line that is parallel
with and 5 feet southwesterly of the said northeasterly line of ▇▇▇ ▇▇, ▇▇▇▇▇
▇▇(▇▇▇▇▇▇▇)▇▇' ▇▇" ▇▇▇▇, 1030.61 feet to the intersection with a line drawn
perpendicular with the southwesterly line of said Lot 12, distant thereon 628.68
feet from the most southerly corner of said Lot 12; Thence southwesterly along
said perpendicular line, South 56(degrees) 09' 36" West, 480.72 feet to the
Point of Beginning.
The basis of bearings for Parcel Map No. 6003 is the North American Datum of
1983, ▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Published in 1986, as shown on Record of Survey
990, filed in Book 18 of Records of Survey, at Pages 50 through 60, Alameda
County Records. All distances in this description are grid distances. To convert
to ground distances, multiply grid distances by 1.0000708.
Assessor's Parcel No. 041-3902-015 (Portion)
[Improvements - Building 3]
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, THE BUILDINGS 1&2 LEASE OR THE
BUILDING 3 LEASE FROM TIME TO TIME OR BECAUSE OF ZHONE'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 (Improvements - Building 3) incorporated by reference into the Lease
Agreement (Improvements - Building 3) 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. County and city 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, Revenue and Taxation Code, Sections 75 et seq., resulting
from changes of ownership or completion of construction on or after the
date hereof.
3. Easement, upon the terms, covenants and conditions thereof, for the
purposes stated therein and incidental purposes created in that certain
instrument
Recorded : FEBRUARY 11, 1974, REEL 3608, IMAGE 3, SERIES NO. 74-16523,
OFFICIAL RECORDS
Granted to : THE PACIFIC TELEPHONE AND TELEGRAPH COMPANY, A
CORPORATION
Purpose : COMMUNICATION FACILITIES
Affects : A SOUTHWESTERLY PORTION OF SAID LAND
4. Terms, covenants, conditions and reservations as contained in the Port
Ordinance No. 2832. An Ordinance establishing standards and restrictions
regulating the use of land and the design and construction of structures
and other improvements in the Oakland Airport Business Park, and repealing
Port Ordinance No. 1343, as amended, recorded MAY 10, 1990, SERIES NO.
90130204, OFFICIAL RECORDS.
Amendment Port Ordinance No. 3146, recorded SEPTEMBER 30, 1993, SERIES NO.
93348032, OFFICIAL RECORDS.
5. Terms and conditions of the City of Oakland Redevelopment Project adopted
by Ordinance No. 11824, C.M.S., as disclosed in the "Notice of Adoption of
the Coliseum Area Redevelopment Plan, Termination of the ▇▇/▇▇/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ Project and Amendment of the Elmhurst
Redevelopment Plan," recorded JULY 31, 1995, SERIES NO. 95167161, OFFICIAL
RECORDS. Amendment recorded SEPTEMBER 9, 1997, SERIES NO. 97-231187,
OFFICIAL RECORDS.
[Improvements - Building 3]
Exhibit B-1 - Page 5
6. The Lease Agreement (Land), the Lease Agreement (Improvements - Buildings
1&2) and the Lease Agreement (Improvements - Building 3), all dated as of
August 1, 2000 and all between BNP Leasing Corporation, as lessor, and
Zhone Technologies, Inc., as lessee.
[Improvements - Building 3]
Exhibit B-1 - page 6
Exhibit B-2
-----------
CORPORATION GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
-------------------------
NAME: [Zhone or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE: ___________________
Zip: ___________________
MAIL TAX STATEMENTS TO:
----------------------
NAME: [Zhone or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE: ___________________
Zip: ___________________
CORPORATION GRANT DEED
(Covering Improvements but not the Land under the Improvements)
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, BNP
LEASING CORPORATION, a Delaware corporation ("Grantor"), hereby grants to [Zhone
or the Applicable Purchaser] ("Grantee") all of Grantor's interest in the
buildings and other improvements (the "Improvements") on the land situated in
Oakland, California, described on Annex A attached hereto and hereby made a part
hereof (the "Land"), together with the any other right, title and interest of
Grantor in and to any easements, rights-of-way, privileges and other rights
appurtenant to the Improvements; provided, however, that this grant is subject
to the encumbrances described on Annex B (the "Permitted Encumbrances") and any
reservations or qualifications set forth below. Grantee hereby assumes the
obligations (including any personal obligations) of Grantor, if any, created by
or under, and agrees to be bound by the terms and conditions of, the Permitted
Encumbrances to the extent that the same concern or apply to the Improvements.
Although this deed conveys Grantor's interest in the Improvements, this deed
does not convey any interest in the Land under the Improvements or any rights or
easements appurtenant to Improvements. Grantor retains and reserves all right,
title and interest of Grantor in and to the Land and any rights and easements
appurtenant to Land. Further, this deed does not convey any right of access
over or right to use the Land, it being understood that the right of Grantee or
its successors and assigns to maintain or use the improvements conveyed hereby
on the Land shall be on and subject to the terms and conditions of any separate
ground lease or deed that Grantee may from time to time obtain, authorizing use
of the Land by Grantee. [DRAFTING NOTE: IF ZHONE DESIGNATES AN APPLICABLE
-------------
PURCHASER AS GRANTEE (RATHER THAN DESIGNATING ITSELF TO BE THE GRANTEE), THE
FOLLOWING WILL BE ADDED TO THIS DEED:
Unless Grantee has obtained or is (contemporaneously with the delivery of
this deed) obtaining a sublease under a separate existing ground lease that is
sufficient to authorize Grantee to maintain the Improvements on the Land,
Grantee shall remove or abandon the Improvements promptly upon request of the
owner of the Land. Nothing herein or in the agreements pursuant to which this
deed is being delivered shall be construed as an obligation on the part of
Grantor to deliver or cooperate reasonably in obtaining for Grantee any deed or
ground lease covering the Land described in
[Improvements - Building 3]
Annex A.]
[Improvements - Building 3]
Exhibit B-2 - Page 2
BNP LEASING CORPORATION
Date: As of ____________ By: ___________________________________
Its:
Attest: ___________________________________
Its:
[Zhone 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_____________________________
[Improvements - Building 3]
Exhibit B-2 - Page 3
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_______________________________
[Improvements - Building 3]
Exhibit B-2 - Page 4
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 ZHONE REQUESTS BNPLC'S
CONSENT OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY
SUCH CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING
NOTE" WILL BE DELETED BEFORE THE DEED TO WHICH THIS DESCRIPTION IS ATTACHED IS
ACTUALLY EXECUTED AND DELIVERED.]
The real property located in the City of Oakland, County of Alameda, State of
California, described as follows:
Being a portion of Lot 12, as shown on Parcel Map No. 6003, filed in Book 205 of
Parcel Maps, at Pages 94 through 98, Alameda County Records, more particularly
described as follows:
Commencing at the most southerly corner of said Lot 12; Thence along the
southwesterly line of said ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 50' 24" West, 628.68 feet
to the point of beginning; Thence continuing along the southwesterly line of
said ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 50' 24" West, 1029.21 feet; Thence along the
southeasterly line of said ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 09' 36" West 14.00 feet;
Thence along the southwesterly line of said ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 50' 24"
West, 253.55 feet to the beginning of a curve, concave southwesterly, having a
radius of 392.21 feet; Thence northerly along the arc of said curve, through a
central angle of 3(degrees) 51' 45", an arc distance of 26.44 feet to the
intersection of a line drawn parallel with and 85.00 feet southeasterly of the
northwesterly line of said Lot 12, a radial line through said point bears North
52(degrees) 17' 51" East; Thence parallel with the northwesterly line of said
▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 09' 36" East, 476.93 feet to a point that is 5 feet
southwesterly of the northeasterly line of said Lot 12; Thence along a line that
is parallel with and 5 feet southwesterly of the said northeasterly line of ▇▇▇
▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 00' 30" East, 69.44 feet to the beginning of a curve,
concave southwesterly, having a radius of 1949.00 feet; Thence southeasterly
along the arc of said curve, through a central angle of 6(degrees) 10' 18", an
arc distance of 209.94 feet; Thence continuing along a line that is parallel
with and 5 feet southwesterly of the said northeasterly line of ▇▇▇ ▇▇, ▇▇▇▇▇
▇▇(▇▇▇▇▇▇▇)▇▇' ▇▇" ▇▇▇▇, 1030.61 feet to the intersection with a line drawn
perpendicular with the southwesterly line of said Lot 12, distant thereon 628.68
feet from the most southerly corner of said Lot 12; Thence southwesterly along
said perpendicular line, South 56(degrees) 09' 36" West, 480.72 feet to the
Point of Beginning.
The basis of bearings for Parcel Map No. 6003 is the North American Datum of
1983, ▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Published in 1986, as shown on Record of Survey
990, filed in Book 18 of Records of Survey, at Pages 50 through 60, Alameda
County Records. All distances in this description are grid distances. To convert
to ground distances, multiply grid distances by 1.0000708.
Assessor's Parcel No. 041-3902-015 (Portion)
[Improvements - Building 3]
Exhibit B-2 - Page 5
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, THE BUILDINGS 1&2 LEASE OR THE
BUILDING 3 LEASE FROM TIME TO TIME OR BECAUSE OF ZHONE'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 (Improvements - Building 3) incorporated by reference into the Lease
Agreement (Improvements - Building 3) 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. County and city 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, Revenue and Taxation Code, Sections 75 et seq., resulting
from changes of ownership or completion of construction on or after the
date hereof.
3. Easement, upon the terms, covenants and conditions thereof, for the
purposes stated therein and incidental purposes created in that certain
instrument
Recorded : FEBRUARY 11, 1974, REEL 3608, IMAGE 3, SERIES NO. 74-
16523, OFFICIAL RECORDS
Granted to : THE PACIFIC TELEPHONE AND TELEGRAPH COMPANY, A CORPORATION
Purpose : COMMUNICATION FACILITIES
Affects : A SOUTHWESTERLY PORTION OF SAID LAND
4. Terms, covenants, conditions and reservations as contained in the Port
Ordinance No. 2832. An Ordinance establishing standards and restrictions
regulating the use of land and the design and construction of structures
and other improvements in the Oakland Airport Business Park, and repealing
Port Ordinance No. 1343, as amended, recorded MAY 10, 1990, SERIES NO.
90130204, OFFICIAL RECORDS.
Amendment Port Ordinance No. 3146, recorded SEPTEMBER 30, 1993, SERIES NO.
93348032, OFFICIAL RECORDS.
5. Terms and conditions of the City of Oakland Redevelopment Project adopted
by Ordinance No. 11824, C.M.S., as disclosed in the "Notice of Adoption of
the Coliseum Area Redevelopment Plan, Termination of the ▇▇/▇▇/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ Project and Amendment of the Elmhurst
Redevelopment Plan," recorded JULY 31, 1995, SERIES NO. 95167161, OFFICIAL
RECORDS.
Amendment recorded SEPTEMBER 9, 1997, SERIES NO. 97-231187, OFFICIAL
RECORDS.
[Improvements - Building 3]
Exhibit B-2 - Page 6
6. The Lease Agreement (Land), the Lease Agreement (Improvements - Buildings
1&2) and the Lease Agreement (Improvements - Building 3), all dated as of
August 1, 2000 and all between BNP Leasing Corporation, as lessor, and
Zhone Technologies, Inc., as lessee.
[Improvements - Building 3]
Exhibit B-2 - Page 7
Exhibit B-3
-----------
AMENDMENT TO LEASE AGREEMENT (LAND)
This AMENDMENT TO LEASE AGREEMENT LAND (this "Amendment"), by and between
BNP LEASING CORPORATION, a Delaware corporation ("BNPLC"), whose address is
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and [Zhone or any permitted
assignee of Zhone which has become the tenant under the Land Lease], a
___________ ("Lessee"), whose address is ____________________. as of
____________, ____ (the "Effective Date").
RECITALS
This Amendment is being executed pursuant to a Purchase Agreement (Land)
dated as of August 1, 2000 (the "Land Purchase Agreement"), between BNP Leasing
Corporation and Zhone Technologies, Inc., covering the land described in Annex 1
-------
attached hereto (the "Land"). Incorporated by reference into the Land Purchase
Agreement is a Common Definitions and Provisions Agreement (Land) dated as of
the effective date of the Land Purchase Agreement (the "Land CDPA"), between BNP
Leasing Corporation and Zhone Technologies, Inc. The Land CDPA is hereby
incorporated into and made a part of this Amendment for all purposes.
Capitalized terms defined in the Land CDPA and used but not otherwise defined
herein are intended in this Amendment to have the respective meanings ascribed
to them in the Land CDPA. The provisions in Article II of the Land CDPA are
intended to apply to this Amendment as if set forth herein and as if this Ground
Lease were one of the "Land Operative Documents" as defined therein.
Lessee is currently the tenant under the Land Lease, which covers the Land
described in Annex 1. Lessee and BNPLC have reached agreement as to the terms
-------
and conditions upon which they will extend the Land Lease Land for a term of
just less that 35 years, and by this Amendment Lessee and BNPLC desire to
evidence such agreement.
AGREEMENTS
NOW, THEREFORE, Lessee and BNPLC agree as follows:
1. The term of the Land Lease is extended so that (unless the Land Lease
is terminated earlier in accordance with its terms) the term of the Land Lease
will end on the first day of the last calendar month prior to the thirty-fifth
anniversary of the date of this Amendment.
2. From and after the Designated Sale Date, Base Rent required by the
Land Lease must be paid by Lessee in monthly installments, with each installment
due on the first day of every calendar month, in arrears, without offset, demand
or deduction, in an amount equal to the Fair Rental Value as defined in Annex 2
-------
attached hereto.
3. Lessee waives (A) any right to terminate the Land Lease as provided in
Paragraph 1(d) thereof, and (B) any right to further extend the Land Lease,
pursuant to Paragraph 1(c) thereof or otherwise.
4. Except as provided herein, the Land Lease will continue on all of the
same terms and conditions as are set forth therein.
[Improvements - Building 3]
[The signature pages follow.]
[Improvements - Building 3]
Exhibit B-3 - Page
IN WITNESS WHEREOF, this Land Lease Amendment is hereby executed in
multiple originals as of the date first written above.
"Lessor"
[Zhone or its permitted assignee under the Land Lease]
By:______________________________________________
Name:_______________________________________
Title:______________________________________
[Improvements - Building 3]
Exhibit B-3 - Page 3
[Continuation of signature pages to Land Lease Amendment dated as of
___________, ____]
"BNPLC"
BNP LEASING CORPORATION
By:____________________________________
Name:______________________________
Title:_____________________________
[Improvements - Building 3]
Exhibit B-3 - Page 4
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 _____________________________
[Improvements - Building 3]
Exhibit B-3 - Page 5
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 _________________________________
[Improvements - Building 3]
Exhibit B-3 - Page 6
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 ZHONE REQUESTS BNPLC'S
CONSENT OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY
SUCH CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING
NOTE" WILL BE DELETED BEFORE THE DEED TO WHICH THIS DESCRIPTION IS ATTACHED IS
ACTUALLY EXECUTED AND DELIVERED.]
The real property located in the City of Oakland, County of Alameda, State of
California, described as follows:
Being a portion of Lot 12, as shown on Parcel Map No. 6003, filed in Book 205 of
Parcel Maps, at Pages 94 through 98, Alameda County Records, more particularly
described as follows:
Commencing at the most southerly corner of said Lot 12; Thence along the
southwesterly line of said ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 50' 24" West, 628.68 feet
to the point of beginning; Thence continuing along the southwesterly line of
said ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 50' 24" West, 1029.21 feet; Thence along the
southeasterly line of said ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 09' 36" West 14.00 feet;
Thence along the southwesterly line of said ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 50' 24"
West, 253.55 feet to the beginning of a curve, concave southwesterly, having a
radius of 392.21 feet; Thence northerly along the arc of said curve, through a
central angle of 3(degrees) 51' 45", an arc distance of 26.44 feet to the
intersection of a line drawn parallel with and 85.00 feet southeasterly of the
northwesterly line of said Lot 12, a radial line through said point bears North
52(degrees) 17' 51" East; Thence parallel with the northwesterly line of said
▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 09' 36" East, 476.93 feet to a point that is 5 feet
southwesterly of the northeasterly line of said Lot 12; Thence along a line that
is parallel with and 5 feet southwesterly of the said northeasterly line of ▇▇▇
▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 00' 30" East, 69.44 feet to the beginning of a curve,
concave southwesterly, having a radius of 1949.00 feet; Thence southeasterly
along the arc of said curve, through a central angle of 6(degrees) 10' 18", an
arc distance of 209.94 feet; Thence continuing along a line that is parallel
with and 5 feet southwesterly of the said northeasterly line of ▇▇▇ ▇▇, ▇▇▇▇▇
▇▇(▇▇▇▇▇▇▇)▇▇' ▇▇" ▇▇▇▇, 1030.61 feet to the intersection with a line drawn
perpendicular with the southwesterly line of said Lot 12, distant thereon 628.68
feet from the most southerly corner of said Lot 12; Thence southwesterly along
said perpendicular line, South 56(degrees) 09' 36" West, 480.72 feet to the
Point of Beginning.
The basis of bearings for Parcel Map No. 6003 is the North American Datum of
1983, ▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Published in 1986, as shown on Record of Survey
990, filed in Book 18 of Records of Survey, at Pages 50 through 60, Alameda
County Records. All distances in this description are grid distances. To convert
to ground distances, multiply grid distances by 1.0000708.
Assessor's Parcel No. 041-3902-015 (Portion)
[Improvements - Building 3]
Exhibit B-3 - Page 7
Annex 2
-------
DETERMINATION OF FAIR RENTAL VALUE
Each monthly payment of Base Rent will equal the Fair Rental Value,
computed as of the most recent Rental Determination Date (defined below) 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 monthly 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,
at the time a determination is required 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 Designated Sale Date and each
fifth anniversary of the Designated Sale Date.
If Lessee and BNPLC have not agreed upon Fair Rental Value as of any Rental
Determination Date within one hundred eighty days after the such date, then Fair
Rental Value will be determined as follows:
(a) Lessee 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 Lessee 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 Lessee and BNPLC. Notification in writing
of this estimate shall be made to Lessee and BNPLC within fifteen days
following the selection of the third appraiser.
(b) If appraisers must be selected under the procedure set out above
and either BNPLC or Lessee fails to appoint an appraiser or fails to notify
the other party of such appointment within fifteen days after receipt of
notice that the prescribed time for appointing the appraisers has passed,
then the other party's appraiser will determine the Fair Rental Value. All
appraisers selected for the appraisal process set out in this Annex will be
disinterested, reputable, qualified real estate appraisers with the
designation of MAI or equivalent and with at least 5 years experience in
appraising properties comparable to the Land.
(c) If a third appraiser must be chosen under the procedure set out
above, he or she will be chosen on the basis of objectivity and competence,
not on the basis of his relationship with the other appraisers or the
parties to the Land 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
[Improvements - Building 3]
Exhibit B-3 - Page 8
any reason they cannot agree within the prescribed time, either Lessee 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 Lessee 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.
(d) Either Lessee 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 Lessee and
BNPLC.
(e) Lessee 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 Lessee and BNPLC.
If the Fair Rental Value as of any Rental Determination Date has not been
established by agreement of the parties or in accordance with the foregoing
procedures prior to the due date for any monthly installment of Base Rent that
is dependent upon such Fair Rental Value, then no later than such due date
Lessee shall make an estimated payment of Base Rent equal to 150% of the monthly
Base Rent required for latest full calendar month prior to such Rental
Determination Date. Thereafter, if the Fair Rental Value is established to be
greater than the estimated payments made by Lessee, Lessee will pay over any
resulting underpayment to BNPLC upon demand. If, on the other hand, the Fair
Rental Value is later established to be less than the estimated payments made by
Lessee, Lessee may offset any resulting overpayment of Base Rent against future
installments of Base Rent as they become due.
[Improvements - Building 3]
Exhibit B-3 - Page 9
Exhibit B-4
-----------
CORPORATION GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
-------------------------
NAME: [Zhone or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE:_____________________
Zip: ___________________
MAIL TAX STATEMENTS TO:
----------------------
NAME: [Zhone or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE:_____________________
Zip: ___________________
CORPORATION GRANT DEED
(Covering Improvements but not Land under the Improvements)
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, BNP
LEASING CORPORATION, a Delaware corporation ("Grantor"), hereby grants to [Zhone
or the Applicable Purchaser] ("Grantee") all of Grantor's interest in the
buildings and other improvements (the "Improvements") on the land situated in
Oakland, California, described on Annex A attached hereto and hereby made a part
hereof (the "Land"), together with the any other right, title and interest of
Grantor in and to any easements, rights-of-way, privileges and other rights
appurtenant to the Improvements; provided, however, that this grant is subject
to the encumbrances described on Annex B (the "Permitted Encumbrances") and any
reservations or qualifications set forth below. Grantee hereby assumes the
obligations (including any personal obligations) of Grantor, if any, created by
or under, and agrees to be bound by the terms and conditions of, the Permitted
Encumbrances to the extent that the same concern or apply to the Improvements.
Although this deed conveys Grantor's interest in the Improvements on the Land,
this deed does not convey any interest in the Land itself or any rights or
easements appurtenant to Land. Prior to or contemporaneously with the delivery
of this deed, Grantor has conveyed or is conveying the Land and appurtenant
rights and easements to another party, subject to the terms and conditions of a
Ground Lease dated ________, filed or to be filed for record in the Santa ▇▇▇▇▇
County records. Grantor is assigning it's rights as lessee under the Ground
Lease to Grantee by a separate instrument dated of even date herewith.
[Improvements - Building 3]
BNP LEASING CORPORATION
Date: As of ____________ By: _________________________________
Its:
Attest: _________________________________
Its:
[Zhone 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 ______________________________
[Improvements - Building 3]
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_________________________________
[Improvements - Building 3]
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 ZHONE REQUESTS BNPLC'S
CONSENT OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY
SUCH CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING
NOTE" WILL BE DELETED BEFORE THE DEED TO WHICH THIS DESCRIPTION IS ATTACHED IS
ACTUALLY EXECUTED AND DELIVERED.]
The real property located in the City of Oakland, County of Alameda, State of
California, described as follows:
Being a portion of Lot 12, as shown on Parcel Map No. 6003, filed in Book 205 of
Parcel Maps, at Pages 94 through 98, Alameda County Records, more particularly
described as follows:
Commencing at the most southerly corner of said Lot 12; Thence along the
southwesterly line of said ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 50' 24" West, 628.68 feet
to the point of beginning; Thence continuing along the southwesterly line of
said ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 50' 24" West, 1029.21 feet; Thence along the
southeasterly line of said ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 09' 36" West 14.00 feet;
Thence along the southwesterly line of said ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 50' 24"
West, 253.55 feet to the beginning of a curve, concave southwesterly, having a
radius of 392.21 feet; Thence northerly along the arc of said curve, through a
central angle of 3(degrees) 51' 45", an arc distance of 26.44 feet to the
intersection of a line drawn parallel with and 85.00 feet southeasterly of the
northwesterly line of said Lot 12, a radial line through said point bears North
52(degrees) 17' 51" East; Thence parallel with the northwesterly line of said
▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 09' 36" East, 476.93 feet to a point that is 5 feet
southwesterly of the northeasterly line of said Lot 12; Thence along a line that
is parallel with and 5 feet southwesterly of the said northeasterly line of ▇▇▇
▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 00' 30" East, 69.44 feet to the beginning of a curve,
concave southwesterly, having a radius of 1949.00 feet; Thence southeasterly
along the arc of said curve, through a central angle of 6(degrees) 10' 18", an
arc distance of 209.94 feet; Thence continuing along a line that is parallel
with and 5 feet southwesterly of the said northeasterly line of ▇▇▇ ▇▇, ▇▇▇▇▇
▇▇(▇▇▇▇▇▇▇) 50' 12" East, 1030.61 feet to the intersection with a line drawn
perpendicular with the southwesterly line of said Lot 12, distant thereon 628.68
feet from the most southerly corner of said Lot 12; Thence southwesterly along
said perpendicular line, South 56(degrees) 09' 36" West, 480.72 feet to the
Point of Beginning.
The basis of bearings for Parcel Map No. 6003 is the North American Datum of
1983, ▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Published in 1986, as shown on Record of Survey
990, filed in Book 18 of Records of Survey, at Pages 50 through 60, Alameda
County Records. All distances in this description are grid distances. To convert
to ground distances, multiply grid distances by 1.0000708.
Assessor's Parcel No. 041-3902-015 (Portion)
[Improvements - Building 3]
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, THE BUILDINGS 1&2 LEASE OR THE
BUILDING 3 LEASE FROM TIME TO TIME OR BECAUSE OF ZHONE'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. County and city 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, Revenue and Taxation Code, Sections 75 et seq., resulting
from changes of ownership or completion of construction on or after the
date hereof.
3. Easement, upon the terms, covenants and conditions thereof, for the
purposes stated therein and incidental purposes created in that certain
instrument
Recorded : FEBRUARY 11, 1974, REEL 3608, IMAGE 3, SERIES NO. 74-
16523, OFFICIAL RECORDS
Granted to : THE PACIFIC TELEPHONE AND TELEGRAPH COMPANY, A CORPORATION
Purpose : COMMUNICATION FACILITIES
Affects : A SOUTHWESTERLY PORTION OF SAID LAND
4. Terms, covenants, conditions and reservations as contained in the Port
Ordinance No. 2832. An Ordinance establishing standards and restrictions
regulating the use of land and the design and construction of structures
and other improvements in the Oakland Airport Business Park, and repealing
Port Ordinance No. 1343, as amended, recorded MAY 10, 1990, SERIES NO.
90130204, OFFICIAL RECORDS.
Amendment Port Ordinance No. 3146, recorded SEPTEMBER 30, 1993, SERIES NO.
93348032, OFFICIAL RECORDS.
5. Terms and conditions of the City of Oakland Redevelopment Project adopted
by Ordinance No. 11824, C.M.S., as disclosed in the "Notice of Adoption of
the Coliseum Area Redevelopment Plan, Termination of the ▇▇/▇▇/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ Project and Amendment of the Elmhurst
Redevelopment Plan," recorded JULY 31, 1995, SERIES NO. 95167161, OFFICIAL
RECORDS.
Amendment recorded SEPTEMBER 9, 1997, SERIES NO. 97-231187, OFFICIAL
RECORDS.
[Improvements - Building 3]
Exhibit B-4 - Page 5
6. The Lease Agreement (Land), the Lease Agreement (Improvements - Buildings
1&2) and the Lease Agreement (Improvements - Building 3), all dated as of
August 1, 2000 and all between BNP Leasing Corporation, as lessor, and
Zhone Technologies, Inc., as lessee.
[Improvements - Building 3]
Exhibit B-4 - Page 6
Exhibit C
---------
▇▇▇▇ OF SALE AND ASSIGNMENT
Reference is made to: (1) that certain Purchase Agreement (Improvements -
Building 3) between BNP Leasing Corporation ("Assignor") and Zhone Technologies,
Inc., dated as of August 1, 2000, (the "Building 3 Purchase Agreement") and (2)
that certain Lease Agreement (Improvements - Building 3) between Assignor, as
landlord, and Zhone Technologies, Inc., as tenant, dated as of August 1, 2000
(the "Building 3 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 (Improvements - Building 3) incorporated by
reference into both the Building 3 Purchase Agreement and Building 3 Lease.)
As contemplated by the Building 3 Purchase Agreement, Assignor hereby
sells, transfers and assigns unto [Zhone 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 Building 3 Lease [DRAFTING NOTE: THE FOLLOWING WILL BE ADDED ONLY
IF APPLICABLE BECAUSE OF THE SIMULTANEOUS DELIVERY OF A GRANT DEED IN THE FORM
OF EXHIBIT B-3: and the Ground Lease dated _________, between _________, as
------------
lessor, and Assignor, as lessee, filed for record on in ___________ of Alameda
County records (the "Ground Lease")];
(b) any pending or future award made because of any condemnation affecting
the Building 3 Property or because of any conveyance to be made in lieu thereof,
and any unpaid award for damage to the Building 3 Property and any unpaid
proceeds of insurance or claim or cause of action for damage, loss or injury to
the Building 3 Property; and
(c) all other property included within the definition of "Property" as set
forth in the ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, including but not limited to any of
the following transferred to Assignor by the tenant pursuant to Paragraph 7
-----------
of the Building 3 Lease or otherwise acquired by Assignor, at the time of the
execution and delivery of the Building 3 Lease and Purchase Agreement or
thereafter, by reason of Assignor's status as the owner of any interest in the
Building 3 Property: (1) any goods, equipment, furnishings, furniture, chattels
and tangible personal property of whatever nature that are located on the
Building 3 Property and all renewals or replacements of or substitutions for any
of the foregoing; (ii) the rights of Assignor, existing at the time of the
execution of the Building 3 Lease and Purchase Agreement or thereafter arising,
under Permitted Encumbrances or Development Documents (both as defined in the
Building 3 Lease); and (iii) any other permits, licenses, franchises,
certificates, and other rights and privileges related to the Building 3 Property
that Assignee would have acquired if Assignee had itself acquired the
Improvements covered by the Building 3 Lease and constructed the Improvements
included in the Building 3 Property.
Provided, however, excluded from this conveyance and reserved to Assignor are
any rights or privileges of Assignor under the following ("Excluded Rights"):
(1) the indemnities set forth in the Building 3 Lease or Other Lease Agreements,
whether such rights are presently known or unknown, including rights of the
Assignor to be indemnified against environmental claims of third parties which
may not presently be known, (2) provisions in the Building 3 Lease or Other
Lease Agreements that establish the right of Assignor to recover any accrued
unpaid rent 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 Building 3 Lease, or any modification or extension thereof, or (4) any other
instrument being delivered to Assignor contemporaneously herewith pursuant to
the Building 3 Purchase Agreement or the Other Purchase Agreements. To the
extent that this conveyance does include any rights to receive future payments
under the Building 3 Lease, such rights shall be subordinate to
[Improvements - Building 3]
Assignor's Excluded Rights.
Assignor does for itself and its successors covenant and agree to warrant
and defend the title to the property assigned herein against the just and lawful
claims and demands of any person claiming under or through a Lien Removable by
BNPLC, but not otherwise.
Assignee hereby assumes and agrees to keep, perform and fulfill Assignor's
obligations, if any, relating to any permits or contracts, under which Assignor
has rights being assigned herein.
IN WITNESS WHEREOF, the parties have executed this instrument as of
_______________, _____.
ASSIGNOR:
--------
BNP LEASING CORPORATION a Delaware corporation
By:____________________________________________
Its:___________________________________________
ASSIGNEE:
--------
[Zhone or the Applicable Purchaser], a
____________________
By:____________________________________________
Its:___________________________________________
[Improvements - Building 3]
Exgibit 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______________
[Improvements - Building 3]
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 ZHONE REQUESTS BNPLC'S
CONSENT OR APPROVAL, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW CHANGE. ANY
SUCH CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS "DRAFTING
NOTE" WILL BE DELETED BEFORE THE DOCUMENT TO WHICH THIS DESCRIPTION IS ATTACHED
IS ACTUALLY EXECUTED AND DELIVERED.]
The real property located in the City of Oakland, County of Alameda, State of
California, described as follows:
Being a portion of Lot 12, as shown on Parcel Map No. 6003, filed in Book 205 of
Parcel Maps, at Pages 94 through 98, Alameda County Records, more particularly
described as follows:
Commencing at the most southerly corner of said Lot 12; Thence along the
southwesterly line of said ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 50' 24" West, 628.68 feet
to the point of beginning; Thence continuing along the southwesterly line of
said ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 50' 24" West, 1029.21 feet; Thence along the
southeasterly line of said ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 09' 36" West 14.00 feet;
Thence along the southwesterly line of said ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 50' 24"
West, 253.55 feet to the beginning of a curve, concave southwesterly, having a
radius of 392.21 feet; Thence northerly along the arc of said curve, through a
central angle of 3(degrees) 51' 45", an arc distance of 26.44 feet to the
intersection of a line drawn parallel with and 85.00 feet southeasterly of the
northwesterly line of said Lot 12, a radial line through said point bears North
52(degrees) 17' 51" East; Thence parallel with the northwesterly line of said
▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 09' 36" East, 476.93 feet to a point that is 5 feet
southwesterly of the northeasterly line of said Lot 12; Thence along a line that
is parallel with and 5 feet southwesterly of the said northeasterly line of ▇▇▇
▇▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) 00' 30" East, 69.44 feet to the beginning of a curve,
concave southwesterly, having a radius of 1949.00 feet; Thence southeasterly
along the arc of said curve, through a central angle of 6(degrees) 10' 18", an
arc distance of 209.94 feet; Thence continuing along a line that is parallel
with and 5 feet southwesterly of the said northeasterly line of ▇▇▇ ▇▇, ▇▇▇▇▇
▇▇(▇▇▇▇▇▇▇) 50' 12" East, 1030.61 feet to the intersection with a line drawn
perpendicular with the southwesterly line of said Lot 12, distant thereon 628.68
feet from the most southerly corner of said Lot 12; Thence southwesterly along
said perpendicular line, South 56(degrees) 09' 36" West, 480.72 feet to the
Point of Beginning.
The basis of bearings for Parcel Map No. 6003 is the North American Datum of
1983, ▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Published in 1986, as shown on Record of Survey
990, filed in Book 18 of Records of Survey, at Pages 50 through 60, Alameda
County Records. All distances in this description are grid distances. To convert
to ground distances, multiply grid distances by 1.0000708.
Assessor's Parcel No. 041-3902-015 (Portion)
[Improvements - Building 3]
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 [Zhone 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
(Improvements - Building 3) incorporated by reference into the Building 3
Purchase Agreement between BNPLC and Zhone Technologies, Inc. dated as of August
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 ________________, ____.
[Zhone or the Applicable Purchaser]
By:___________________________________
Name:______________________________
Title:_____________________________
[Improvements - Building 3]
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]
[Improvements - Building 3]
CORPORATE RESOLUTIONS OF
BNP LEASING CORPORATION
WHEREAS, pursuant to that certain Purchase Agreement (Improvements -
Building 3) (herein called the "Purchase Agreement") dated as of August 1, 2000,
by and between BNP Leasing Corporation (the "Corporation") and [Zhone 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 Building 3 Purchase Agreement) to purchase the Corporation's
interest in the property (the "Property") located in Oakland, 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 Building 3 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
Building 3 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.
[Improvements - Building 3]
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 [Zhone 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:__________________________
[Improvements - Building 3]
Exhibit G
---------
Notice of Election to Terminate the Purchase Option and
the Building 3 Supplemental Payment Obligations
BNP Leasing Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇
Re: Purchase Agreement (Improvements - Building 3) dated as of August 1,
2000 (the "Building 3 Purchase Agreement"), between Zhone Technologies, Inc.
("Zhone") and BNP Leasing Corporation ("BNPLC")
Gentlemen:
Capitalized terms used in this letter are intended to have the meanings
assigned to them in the Building 3 Purchase Agreement referenced above. This
letter shall constitute a notice, given before the Building 3 Base Rent
Commencement Date pursuant to subparagraph 4(B) of the ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, of Zhone's election to terminate the Purchase Option and the Building
3 Supplemental Payment Obligation. Zhone irrevocably elects to terminate the
Purchase Option and the Building 3 Supplemental Payment Obligation effective
immediately, subject only to the conditions described below.
Zhone acknowledges that the election made by Zhone described above
constitutes an Issue 97-10 Election under and as defined in the Building 3
Operative Documents.
Zhone also acknowledges that its right to terminate the Purchase Option and
the Building 3 Supplemental Payment Obligation is subject to the condition
precedent that (x) Zhone shall have given Notice of Zhone's Election to
Terminate pursuant to Paragraph 4(D) of the Construction Management Agreement,
--------------
or (y) BNPLC shall have given any FOCB Notice as provided in Paragraph 4(E) of
--------------
the Construction Management Agreement, or (z) BNPLC shall have given notice of
its election to accelerate the Designated Sale Date when an Event of Default has
occurred and is continuing as provided in clause (5) of the definition
Designated Sale Date in the Common Definitions and Provisions Agreement (Phase
I-Improvements). Accordingly, if none of the notices described in the preceding
sentence have been given, the Purchase Option and the Building 3 Supplemental
Payment Obligation shall not terminate by reason of this notice.
Zhone further acknowledges that no termination of the Purchase Option and
the Building 3 Supplemental Payment Obligation by Zhone pursuant to this notice
shall be effective, unless contemporaneously with the giving of this notice
Zhone shall deliver to BNPLC a full Issue 97-10 Prepayment. Zhone hereby
covenants to pay, if Zhone has not already done so, a full Issue 97-10
Prepayment to BNPLC.
Finally, Zhone acknowledges that a termination of the Purchase Option and
the Building 3 Supplemental Payment Obligation pursuant to this notice shall
cause the Building 3 Lease to terminate as of the Building 3 Base Rent
Commencement Date pursuant to subparagraph 1(b) of the Building 3 Lease.
-----------------
[Improvements - Building 3]
Executed this _____ day of ______________, 20___.
ZHONE TECHNOLOGIES, INC.
Name:________________________________________________
Title:_______________________________________________
[cc all Participants]
[Improvements - Building 3]
Exhibit G - Page 2
