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EXHIBIT 10.2
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$25,000,000
AMENDED AND RESTATED
PURCHASE AGREEMENT
BETWEEN
BNP LEASING CORPORATION
("BNPLC")
AND
SOLECTRON WASHINGTON, INC.
("SOLECTRON")
JULY 1, 1998
(EVERETT, WASHINGTON)
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PURSUANT TO AND AS MORE PARTICULARLY PROVIDED IN PARAGRAPH 13 OF THIS AGREEMENT,
THE LEASE REFERENCED HEREIN AND THIS PURCHASE AGREEMENT ARE TO CONSTITUTE, FOR
INCOME TAX PURPOSES ONLY, A FINANCING ARRANGEMENT OR CONDITIONAL SALE. AS
PROVIDED IN PARAGRAPH 13 OF THIS AGREEMENT, BNPLC AND SOLECTRON EXPECT THAT
SOLECTRON (AND NOT BNPLC) SHALL BE TREATED AS THE TRUE OWNER OF THE PROPERTY FOR
INCOME TAX PURPOSES, THEREBY ENTITLING SOLECTRON (AND NOT BNPLC) TO TAKE
DEPRECIATION DEDUCTIONS AND OTHER TAX BENEFITS AVAILABLE TO THE OWNER.
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TABLE OF CONTENTS
Page
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1. SOLECTRON'S OPTIONS AND OBLIGATIONS ON THE DESIGNATED SALE DATE......................1
(a) Choices.......................................................................1
(b) Election by Solectron.........................................................2
(c) Termination of Solectron's Option To Purchase.................................3
(d) Payment to BNPLC..............................................................3
(e) Effect of Options on Subsequent Title Encumbrances............................3
2. TERMS OF CONVEYANCE UPON PURCHASE....................................................4
3. SURVIVAL OF SOLECTRON'S OBLIGATIONS..................................................4
(a) Status of this Agreement......................................................4
(b) Remedies Under the Lease and Closing Certificate..............................5
4. OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS OF SOLECTRON.........................5
(a) No Default or Violation.......................................................5
(b) No Suits......................................................................5
(c) Enforceability................................................................5
(d) Organization..................................................................6
(e) Omissions.....................................................................6
5. CERTAIN REMEDIES CUMULATIVE..........................................................6
6. ATTORNEYS' FEES AND LEGAL EXPENSES...................................................6
7. ESTOPPEL CERTIFICATE.................................................................6
8. SUCCESSORS AND ASSIGNS...............................................................6
9. MISCELLANEOUS........................................................................7
(a) Notices.......................................................................7
(b) Severability..................................................................8
(c) No Implied Waiver.............................................................8
(d) NO IMPLIED REPRESENTATIONS BY BNPLC...........................................9
(e) Entire Agreement..............................................................9
(f) Time is of the Essence........................................................9
(g) Governing Law.................................................................9
(h) Paragraph Headings............................................................9
(i) Other Terms and References....................................................9
(j) Not a Partnership, Etc........................................................9
10. WAIVER OF JURY TRIAL................................................................10
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11. ADDITIONAL RIGHTS OF BNPLC RELATING TO ESCROWED PROCEEDS............................10
12. SECURITY FOR BNPLC'S OBLIGATIONS....................................................10
13. INCOME TAX REPORTING................................................................10
Exhibits and Schedules
Exhibit A....................................................................Legal Description
Exhibit B.................................................................................Deed
Exhibit C.............................................State of Washington Excise Tax Affidavit
Exhibit D..........................................................Xxxx of Sale and Assignment
Exhibit E........................................................Acknowledgment and Disclaimer
Exhibit F................................................................Intentionally Deleted
Exhibit G..............................................................Secretary's Certificate
Exhibit H..................................................Instruction Letter to Title Insurer
Exhibit I...............................................Certificate Concerning Tax Withholding
Exhibit J...............................................Indemnity for Liens Removable by BNPLC
List of Defined Terms.......................................................Shared Definitions
(ii)
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AMENDED AND RESTATED
PURCHASE AGREEMENT
This AMENDED AND RESTATED PURCHASE AGREEMENT (this "AGREEMENT"), by and
between BNP LEASING CORPORATION, a Delaware corporation ("BNPLC"), and SOLECTRON
WASHINGTON, INC., a California corporation ("SOLECTRON"), is dated as of July 1,
1998, the Effective Date. ("EFFECTIVE DATE" and other capitalized terms used and
not otherwise defined in this Agreement are intended to have the meanings
assigned to them in the List of Defined Terms attached to and made a part of
this Agreement.)
RECITALS
Pursuant to the Existing Contract, covering the Land described in
Exhibit A, BNPLC acquired the Land and any appurtenances thereto from Seller
contemporaneously with the execution of a Purchase Agreement between BNPLC and
Solectron dated as of December 1, 1997 (the "PRIOR PURCHASE AGREEMENT") and with
the execution of the Prior Lease by BNPLC and Solectron. This Agreement amends,
restates and replaces the Prior Purchase Agreement in its entirety, as of the
Effective Date.
Pursuant to the Prior Lease, BNPLC leased the Land to Solectron and
agreed to provide funding for the construction of Improvements to be owned by
BNPLC. Contemporaneously with the execution of this Agreement, BNPLC and
Solectron are executing the Lease to amend, restate and replace the Prior Lease
in its entirety as of the Effective Date. (BNPLC's interests in the Land, the
Improvements and in all other real and personal property from time to time
covered by the Lease and included within the "Property" as defined therein are
hereinafter collectively referred to as the "PROPERTY".)
By this Agreement, Solectron and BNPLC intend to evidence the terms and
conditions upon which Solectron will purchase or arrange for the purchase of the
Property.
AGREEMENTS
NOW, THEREFORE, in consideration of the above recitals and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. SOLECTRON'S OPTIONS AND OBLIGATIONS ON THE DESIGNATED SALE DATE.
(a) Choices. On the Designated Sale Date, even if an Event of
Default shall have occurred and be continuing or the Lease shall have been
terminated, Solectron shall have the right and the obligation to either:
(i) purchase or cause an Affiliate of Solectron to
purchase BNPLC's interest in the Property and in Escrowed Proceeds, if
any, for a cash price equal to the Break Even Price; or
(ii) cause an Applicable Purchaser who is not an Affiliate
of Solectron to purchase the Property and Escrowed Proceeds, if any,
from BNPLC for a net cash price set by Solectron at an amount not below
the lesser of (a) Fair Market Value, (b) the Residual Risk Percentage of
Stipulated Loss Value outstanding immediately prior to the purchase, or
(c) the Break Even Price. If, however, pursuant to the
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preceding sentence Solectron sets a net cash price below the Residual
Risk Percentage of Stipulated Loss Value and below the Break Even Price
(because Fair Market Value is lower), BNPLC may affirmatively elect to
keep the Property and any Escrowed Proceeds rather than sell to the
Applicable Purchaser, in which case Solectron must pay to BNPLC a
supplemental payment equal to Solectron's Maximum Remarketing
Obligation. Unless BNPLC elects to keep the Property pursuant to the
preceding sentence, Solectron must make a supplemental payment to BNPLC
on the Designated Sale Date equal to the excess (if any) of the Break
Even Price over the total of the cash price actually paid to BNPLC on
the Designated Sale Date by the Applicable Purchaser for the Property
and any Escrowed Proceeds; provided, however, such supplemental payment
shall not exceed Solectron's Maximum Remarketing Obligation. (Any
supplemental payment payable to BNPLC by Solectron, rather than by the
Applicable Purchaser, pursuant to this clause (ii) is herein referred to
as the "SUPPLEMENTAL PAYMENT.") If the cash price actually paid by the
Applicable Purchaser to BNPLC exceeds the Break Even Price and all other
sums that are then due from Solectron to BNPLC under the Lease and
Closing Certificate, Solectron shall be entitled to such excess.
If any amount payable to BNPLC pursuant to this subparagraph 1.(a) is not
actually paid to BNPLC on the Designated Sale Date, Solectron shall pay interest
on the past due amount computed at the Default Rate from the Designated Sale
Date. However, Solectron shall be entitled to a credit against the interest
required by the preceding sentence equal to the Base Rent, if any, actually paid
by Solectron pursuant to the Lease for any period after the Designated Sale
Date.
(b) Election by Solectron. Solectron shall have the right to
elect between satisfying the obligations set out in clause (i) of the preceding
subparagraph 1.(a) or satisfying the obligations set out in clause (ii) of the
preceding subparagraph 1.(a); provided, however:
(i) To give BNPLC the opportunity to have Fair Market
Value determined by an appraiser (as provided in the definition of Fair
Market Value) before the Designated Sale Date, Solectron must, unless
Solectron concedes that Fair Market Value will be no less than the
Residual Risk Percentage of Stipulated Loss Value on the Designated Sale
Date, provide BNPLC with a Remarketing Notice. As used in this
Agreement, "REMARKETING NOTICE" means a notice given by Solectron to
BNPLC (and to each of the Participants) no earlier than two hundred
seventy days before the Designated Sale Date and no later than one
hundred and eighty days before the Designated Sale Date, specifying that
Solectron does not concede that Fair Market Value will be greater than
the Residual Risk Percentage of Stipulated Loss Value. (No Remarketing
Notice will be required if Solectron does concede that Fair Market Value
will equal or exceed the Residual Risk Percentage of Stipulated Loss
Value on the Designated Sale Date.) But if for any reason (including any
acceleration of the Designated Sale Date as provided in the definition
of Designated Sale Date in the List of Defined Terms) Solectron fails to
provide a Remarketing Notice within the time periods specified in the
definition of Remarketing Notice above, Fair Market Value shall, for
purposes of determining any Supplemental Payment required by this
Agreement, be deemed to be no less than the Residual Risk Percentage of
Stipulated Loss Value on the Designated Sale Date.
(ii) To give BNPLC the opportunity to prepare the deed and
other documents that BNPLC must tender pursuant to Paragraph 2
(collectively, the "SALE CLOSING DOCUMENTS") before the Designated Sale
Date, Solectron must, if it is to satisfy the obligations set forth in
subparagraph 1.(a) by causing an Affiliate of Solectron or another
Applicable Purchaser to purchase the Property, irrevocably specify the
Affiliate or other Applicable Purchaser in notice to BNPLC given at
least seven days prior to the Designated Sale Date. If for any reason
Solectron fails to so specify an Affiliate or another Applicable
Purchaser, Solectron shall be deemed to have irrevocably elected to
satisfy the obligations set forth in subparagraph 1.(a)(i) by itself
purchasing the Property.
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(c) Termination of Solectron's Option To Purchase. Without
limiting BNPLC's right to require Solectron to satisfy the obligations imposed
by subparagraph 1.(a), Solectron shall have no further option hereunder to
purchase the Property if either:
(i) Solectron shall have elected to satisfy its
obligations under subparagraph 1.(a)(ii) on a Designated Sale Date and
BNPLC shall have elected to keep the Property on such Designated Sale
Date in accordance with subparagraph 1.(a)(ii); or
(ii) Solectron shall have failed on a Designated Sale Date
to make or cause to be made all payments to BNPLC required by this
Agreement or by the Lease and such failure shall have continued beyond
the thirty day period for tender specified in the next sentence.
If BNPLC does not receive all payments due under the Lease or hereunder on a
Designated Sale Date, Solectron may nonetheless tender to BNPLC the full Break
Even Price and all amounts then due under the Lease, together with interest on
the total Break Even Price computed at the Default Rate from the Designated Sale
Date to the date of tender, and if presented with such a tender within thirty
days after the applicable Designated Sale Date, BNPLC must accept it and
promptly thereafter deliver any Escrowed Proceeds and the Sale Closing Documents
listed in Paragraph 2.
(d) Payment to BNPLC. All amounts payable under the preceding
subparagraphs 1.(a) or 1.(c) by Solectron and, if applicable, by the Applicable
Purchaser must be paid directly to BNPLC, and no payment to any other party
shall be effective for the purposes of this Agreement. In addition to the
payments required under subparagraph 1.(a), on the Designated Sale Date
Solectron must pay all amounts then due to BNPLC under the Lease. BNPLC will
remit any excess amounts due Solectron pursuant to the last sentence of
subparagraph 1.(a)(ii) promptly after BNPLC's receipt of the same. To the
extent, if any, that Solectron claims and is entitled to claim a reduction in
the Break Even Price because of any Deductible Judgments, as provided in the
definition of Break Even Price in the List of Defined Terms attached to this
Agreement, Solectron must pay such Deductible Judgments for the account of BNPLC
contemporaneously with the payment of the other amounts required by subparagraph
1.(a).
(e) Effect of Options on Subsequent Title Encumbrances. Any
conveyance of the Property to Solectron or any Applicable Purchaser pursuant to
this Agreement shall cut off and terminate any interest in the Land,
Improvements or other Property claimed by, through or under BNPLC, including any
interest claimed by the Participants and including any Liens Removable by BNPLC
(such as, but not limited to, any judgment liens established against the
Property because of a judgment rendered against BNPLC and any leasehold or other
interests conveyed by BNPLC in the ordinary course of BNPLC's business), but not
obligations of Solectron to BNPLC under the indemnities in the Closing
Certificate or under the Lease or this Agreement then due or that may become due
thereafter because of any expense or liability incurred by BNPLC resulting in
whole or in part from events or circumstances occurring before such conveyance.
Anyone accepting or taking any interest in the Property by or through BNPLC
after the date of this Agreement shall acquire such interest subject to the
rights and options granted Solectron hereby. Further, Solectron and any
Applicable Purchaser shall be entitled to pay any payment required by this
Agreement for the purchase of the Property directly to BNPLC notwithstanding any
prior conveyance or assignment by BNPLC, voluntary or otherwise, of any right or
interest in this Agreement or the Property, and neither Solectron 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 Solectron to cause such payment to all Persons
claiming an interest in such payment. The parties shall record a memorandum of
this Agreement for purposes of effecting constructive notice to all Persons of
Solectron's rights under this Agreement, including its rights under this
subparagraph.
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2. TERMS OF CONVEYANCE UPON PURCHASE. Immediately after Solectron
tenders all payments to BNPLC as required by and pursuant to the preceding
Paragraph 1, BNPLC must, unless it is to keep the Property as permitted by
subparagraph 1.(a)(ii), deliver Escrowed Proceeds, if any, and convey all of its
right, title and interest in the Land, Improvements and other Property by
BNPLC's execution, acknowledgment (where appropriate) and delivery of the Sale
Closing Documents to Solectron or the Applicable Purchaser, as the case may 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 right to receive any payment under the indemnities in the Closing
Certificate or under the Lease then due BNPLC or that may become due thereafter
because of any expense or liability incurred by BNPLC resulting in whole or in
part from events or circumstances occurring before such conveyance. All costs of
such purchase and conveyance of every kind whatsoever, both foreseen and
unforeseen, shall be the responsibility of the purchaser. The Sale Closing
Documents used to accomplish such conveyance shall consist of the following: (1)
a Deed in the form attached as Exhibit B, (2) a State of Washington Excise Tax
Affidavit in the form attached as Exhibit C, (3) a Xxxx of Sale and Assignment
of Lease and Intangible Assets in the form attached as Exhibit D, (4) an
Acknowledgment of Disclaimer of Representations and Warranties in the form
attached as Exhibit E, which Solectron or the Applicable Purchaser must execute
and return to BNPLC, (5) a Secretary's Certificate in the form attached as
Exhibit G, (6) a letter to the title insurance company insuring title to the
Property in the form attached as Exhibit H, (7) a certificate concerning tax
withholding in the form attached as Exhibit I, and (8) if applicable, an
Indemnity for Liens Removable by BNPLC in the form attached hereto as Exhibit J.
The Indemnity for Liens Removable by BNPLC described in the preceding sentence
shall be required if, but only if, before the other Sale Closing Documents are
tendered by BNPLC in accordance with this Agreement, Solectron shall have
identified, provided a written list to BNPLC of, and been unable to obtain a
commitment for title insurance against, any title encumbrances that Solectron
believes in good faith may constitute Liens Removable by BNPLC and that, if
valid, would constitute Liens Removable by BNPLC. Any such Indemnity will be
completed by attaching a list of such identified encumbrances as Annex B
thereto. If for any reason BNPLC fails to tender the Sale Closing Documents as
required by this Xxxxxxxxx 0, XXXXX may cure such refusal at any time before
thirty days after receipt of a demand for such cure from Solectron.
3. SURVIVAL OF SOLECTRON'S OBLIGATIONS.
(a) Status of this Agreement. Except as expressly provided
herein, this Agreement shall not terminate, nor shall Solectron have any right
to terminate this Agreement, nor shall Solectron be entitled to any reduction of
the Break Even Price or Supplemental Payment hereunder, nor shall the
obligations of Solectron to BNPLC under Paragraph 1 be affected by reason of (i)
any damage to or the destruction of all or any part of the Property from
whatever cause, (ii) the taking of or damage to the Property or any portion
thereof under the power of eminent domain or otherwise for any reason, (iii) the
prohibition, limitation or restriction of Solectron's use of all or any portion
of the Property or any interference with such use by governmental action or
otherwise, (iv) any eviction of Solectron or any party claiming under Solectron
by paramount title or otherwise, (v) Solectron's prior acquisition or ownership
of any interest in the Property, (vi) any default on the part of BNPLC under
this Agreement, the Lease or any other agreement to which BNPLC is a party, or
(vii) any other cause, whether similar or dissimilar to the foregoing, any
existing or future law to the contrary notwithstanding. It is the intention of
the parties hereto that the obligations of Solectron to make payment to and, if
applicable, to cause the Applicable Purchaser to make payment to BNPLC under
Paragraph 1 shall be separate and independent covenants and agreements from
BNPLC's obligations under this Agreement or any other agreement between BNPLC
and Solectron; 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 as required by Paragraph 2 and any Escrowed
Proceeds (if such tender is not excused because of an election by BNPLC to keep
the Property under subparagraph 1.(a)(ii)) immediately after the tender by
Solectron and/or the Applicable Purchaser of such payments and of the other
documents to be executed in favor of BNPLC at the closing of the sale.
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However, nothing in this subparagraph, nor the performance without
objection by Solectron of its obligations hereunder, shall be construed as a
waiver by Solectron of any right Solectron may have at law or in equity,
following (A) any failure by BNPLC to tender any Escrowed Proceeds or the Sale
Closing Documents as required by Paragraph 2 (if such tender is not excused
because of an election by BNPLC to keep the Property under subparagraph
1.(a)(ii)) upon the tender by Solectron or the Applicable Purchaser of the
payments required by Paragraph 1 and of the other documents to be executed in
favor of BNPLC at the closing of the sale hereunder, or (B) any failure by BNPLC
to remove all Liens Removable by BNPLC before conveying the Property pursuant to
this Agreement, (i) to recover monetary damages proximately caused by such
failure of BNPLC if BNPLC does not cure the failure within thirty days after
Solectron demands a cure by written notice to BNPLC, or (ii) to obtain a decree
compelling specific performance of BNPLC's obligation hereunder.
(b) Remedies Under the Lease and Closing Certificate. No
repossession of or re-entering upon the Property or exercise of any other
remedies available to BNPLC under the Lease and Closing Certificate shall
relieve Solectron of its liabilities and obligations hereunder, all of which
shall survive BNPLC's exercise of remedies under the Lease and Closing
Certificate. Solectron acknowledges that the consideration for this Agreement is
separate and independent of the consideration for the Lease and Closing
Certificate, and Solectron's obligations hereunder shall not be affected or
impaired by any event or circumstance that would excuse Solectron from
performance of its obligations under the Lease and Closing Certificate.
4. OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS OF SOLECTRON.
Solectron represents, warrants and covenants as follows:
(a) No Default or Violation. The execution, delivery and
performance by Solectron of this Agreement does not and will not constitute a
breach or default under any other material agreement or contract to which
Solectron is a party or by which Solectron is bound or which affects the
Property, and does not violate or contravene any law, order, decree, rule or
regulation to which Solectron is subject, and such execution, delivery and
performance by Solectron will not result in the creation or imposition of (or
the obligation to create or impose) any lien, charge or encumbrance on, or
security interest in, Solectron's property pursuant to the provisions of any of
the foregoing.
(b) No Suits. Other than matters, if any, disclosed in Schedule
2 attached to the Lease, there are no judicial or administrative actions, suits,
proceedings or investigations pending or, to Solectron's knowledge, threatened
that will adversely affect the Property or the validity, enforceability or
priority of this Agreement, and Solectron is not in default with respect to any
order, writ, injunction, decree or demand of any court or other governmental or
regulatory authority that could materially and adversely affect the use,
occupancy or operation of the Property.
(c) Enforceability. The execution, delivery and performance by
Solectron of this Agreement is duly authorized and does not require the consent
or approval of any governmental body or other regulatory authority that has not
heretofore been obtained and is not in contravention of or conflict with any
applicable laws or any term or provision of Solectron's articles of
incorporation or bylaws. This Agreement is a valid, binding and legally
enforceable obligation of Solectron, in accordance with its terms, except as
such enforcement is affected by bankruptcy, insolvency and similar laws
affecting the rights of creditors, generally, and equitable principles of
general application.
(d) Organization. Solectron is duly incorporated and legally
existing under the laws of the State of California and is duly qualified to do
business in the State of Washington. Solectron has all requisite power and has
procured or will procure on a timely basis all governmental certificates of
authority, licenses, permits, qualifications and other documentation required to
fulfill its obligations under this Agreement.
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(e) Omissions. None of Solectron's representations or warranties
contained in this Agreement or in any other document, certificate or written
statement furnished to BNPLC by or on behalf of Solectron in connection with
this Agreement contains any untrue statement of a material fact or omits a
material fact necessary in order to make the statements contained herein or
therein (when taken in their entireties) not misleading.
5. CERTAIN REMEDIES CUMULATIVE. No right or remedy herein conferred upon
or reserved to BNPLC is intended to be exclusive of any other right or remedy
BNPLC has with respect to the Property, and each and every right and remedy
shall be cumulative and in addition to any other right or remedy given hereunder
or now or hereafter existing at law or in equity or by statute. In addition to
other remedies available under this Agreement, either party shall be entitled,
to the extent permitted by applicable law, to a decree compelling performance of
any of the other party's agreements hereunder.
6. ATTORNEYS' FEES AND LEGAL EXPENSES. If either party commences any
legal action or other proceeding to enforce any of the terms of this Agreement
or the documents and agreements referred to herein, or because of any breach by
the other party or dispute hereunder or thereunder, the successful or prevailing
party, shall be entitled to recover from the nonprevailing 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.
7. ESTOPPEL CERTIFICATE. Either party to this Agreement will, upon not
less than twenty days' prior request by the other party hereto, execute,
acknowledge and deliver to the requesting party 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 the responding party has knowledge. Any
such statement may be relied upon by any Participant or prospective purchaser or
permitted assignee of BNPLC or Solectron with respect to the Property.
8. SUCCESSORS AND ASSIGNS. The terms, provisions, covenants and
conditions hereof shall be binding upon Solectron and BNPLC and their respective
permitted successors and assigns and shall inure to the benefit of Solectron and
BNPLC and all permitted transferees, mortgagees, successors and assignees of
Solectron and BNPLC with respect to the Property; provided, that the rights of
BNPLC hereunder shall not pass to Solectron or any Applicable Purchaser or any
subsequent owner claiming through Solectron or an Applicable Purchaser. Prior to
the Designated Sale Date, BNPLC may transfer, assign and convey, in whole or in
part, the Property and any and all of its rights under this Agreement (subject
to the terms of this Agreement) by any conveyance that constitutes a Permitted
Transfer, but not otherwise. If BNPLC sells or otherwise transfers the Property
and assigns its rights under this Agreement and the Lease pursuant to a
Permitted Transfer, and if BNPLC's successor in interest assumes in writing for
the benefit of Solectron liability for the obligations imposed upon BNPLC by
this Agreement and the Lease on and subject to the express terms set out herein
and therein, then BNPLC shall thereby be released from any further obligations
arising under this Agreement or the Lease after the date of such assumption, and
Solectron agrees to look solely to each successor in interest of BNPLC for
performance of such obligations.
9. MISCELLANEOUS.
(a) Notices. Each provision of this Agreement, or of any
Applicable Laws with reference to the sending, mailing or delivery of any notice
or demand hereunder, or with reference to the making of any payment required
hereunder, shall be deemed to be complied with when and if the following steps
are taken:
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(i) All payments required to be paid by Solectron or any
Applicable Purchaser to BNPLC hereunder shall be paid to BNPLC in
immediately available funds by wire transfer to:
Federal Reserve Bank of New York
ABA 000000000 Banque Nationale de Paris
/BNP/ BNP San Francisco
/AC/ 14334000176
/Ref/ Solectron (Solectron Washington
Purchase Agreement)
or at such other place and in such other manner as BNPLC may designate in a
notice to Solectron. Time is of the essence as to all payments of Solectron
under this Agreement.
(ii) All payments required to be made by BNPLC to Solectron pursuant
to the last sentence of subparagraph 1.(a)(ii) shall be paid to Solectron in
immediately available funds at the address of Solectron set forth below or
as Solectron may otherwise direct by notice sent in accordance herewith.
(iii) All notices, demands, approvals, consents and other
communications to be made hereunder to or by the parties hereto must, to be
effective for purpose of this Agreement, be in writing. Notices, demands and
other communications required or permitted hereunder are to be sent to the
addresses set forth below (or in the case of communications to Participants,
at the addresses set forth in Schedule 1 attached to the Participation
Agreement) and shall be given by any of the following means: (A) personal
service, with proof of delivery or attempted delivery retained; (B)
electronic communication, whether by telegram or telecopying (if confirmed
in writing sent by United States first class mail, return receipt
requested); or (C) registered or certified first class mail, return receipt
requested. Such addresses may be changed by notice to the other parties
given in the same manner as provided above. Any notice or other
communication sent pursuant to clause (A) or (C) hereof shall be deemed
received (whether or not actually received) upon first attempted delivery at
the proper notice address on any Business Day between 9:00 A.M. and 5:00
P.M., and any notice or other communication sent pursuant to clause (B)
hereof shall be deemed received upon dispatch by electronic means.
Address of BNPLC:
BNP Leasing Corporation
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxx
Telecopy: (000) 000-0000
With a copy to:
Banque Nationale de Paris, San Francisco
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx or Xxxxxx Xxxxx
Telecopy: (000) 000-0000
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And with a copy to:
Xxxxx Xxxxxx
Xxxxxxxx & Knight, P.C.
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Address of Solectron:
Solectron Washington, Inc.
000 Xxxxxxxxx Xxxxx, Xxxxxxxx #0
Xxxxxxxx, XX 00000
Attn: Chief Financial Officer
Telecopy: (000) 000-0000
With a copy to:
Wilson, Sonsini, Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Real Estate Department/DSS
Telecopy: (000) 000-0000
(b) Severability. If any term or provision of this Agreement or
the application thereof shall to any extent be held by a court of competent
jurisdiction to be invalid and unenforceable, the remainder of this Agreement,
or the application of such term or provision other than to the extent to which
it is invalid or unenforceable, shall not be affected thereby. Further, the
obligations of Solectron hereunder, to the maximum extent possible, shall be
deemed to be separate, independent and in addition to, not in lieu of, the
obligations of Solectron under the Lease and Closing Certificate. In the event
of any inconsistency between the terms of this Agreement and the terms and
provisions of the Lease and Closing Certificate, the terms and provisions of
this Agreement shall control.
(c) No Implied Waiver. The failure of BNPLC or Solectron to
insist at any time upon the strict performance of any covenant or agreement or
to exercise any option, right, power or remedy contained in this Agreement shall
not be construed as a waiver or a relinquishment thereof for the future. The
waiver of or redress for any breach of this Agreement shall not prevent a
similar subsequent act from constituting a violation. Any express waiver shall
affect only the term or condition specified in such waiver and only for the time
and in the manner specifically stated therein. A receipt by BNPLC of any payment
hereunder with knowledge of the breach of any covenant or agreement contained in
this Agreement shall not be deemed a waiver of such breach, and no waiver of any
provision of this Agreement shall be deemed to have been made unless expressed
in writing and signed by the waiving party.
(d) NO IMPLIED REPRESENTATIONS BY BNPLC. BNPLC AND BNPLC'S AGENTS
HAVE MADE NO REPRESENTATIONS OR PROMISES WITH RESPECT TO THE PROPERTY EXCEPT AS
EXPRESSLY SET FORTH HEREIN AND IN THE LEASE, AND NO RIGHTS, EASEMENTS OR
LICENSES
8
12
ARE ACQUIRED BY SOLECTRON BY IMPLICATION OR OTHERWISE EXCEPT AS EXPRESSLY SET
FORTH IN THIS AGREEMENT AND THE LEASE.
(e) Entire Agreement. This Agreement, the Closing Certificate,
the Lease and the other documents dated as of July 1, 1998, which are being
executed by Solectron and executed or accepted by BNPLC contemporaneously with
the execution of this Agreement supersede any prior negotiations and agreements
between BNPLC and Solectron concerning the Property, and no amendment or
modification of this Agreement shall be binding or valid unless expressed in a
writing executed by both parties hereto.
(f) Time is of the Essence. Time is of the essence as to all
obligations of Solectron and BNPLC and all notices required of Solectron and
BNPLC under this Agreement.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Washington without regard
to conflict or choice of laws.
(h) Paragraph Headings. The paragraph headings contained in this
Agreement are for convenience only and shall in no way enlarge or limit the
scope or meaning of the various and several paragraphs hereof.
(i) Other Terms and References. Words of any gender used in this
Agreement shall be held and construed to include any other gender, and words in
the singular number shall be held to include the plural and vice versa, unless
the context otherwise requires. References herein to Paragraphs, subparagraphs
or other subdivisions shall refer to the corresponding Paragraphs, subparagraphs
or subdivisions of this Agreement, unless specific reference is made to another
document or instrument. References herein to any Schedule or Exhibit shall refer
to the corresponding Schedule or Exhibit attached hereto, which shall be made a
part hereof by such reference. All capitalized terms used in this Agreement
which refer to other documents shall be deemed to refer to such other documents
as they may be renewed, extended, supplemented, amended or otherwise modified
from time to time, provided such documents are not renewed, extended or modified
in breach of any provision contained herein or therein or, in the case of any
other document to which BNPLC is a party or of which BNPLC is an intended
beneficiary, without the consent of BNPLC. All accounting terms used but not
specifically defined herein shall be construed in accordance with GAAP. The
words "this Agreement", "herein", "hereof", "hereby", "hereunder" and words of
similar import when used in this Agreement refer to this Agreement as a whole
and not to any particular subdivision unless expressly so limited. The phrases
"this Paragraph" and "this subparagraph" and similar phrases used herein refer
only to the Paragraphs or subparagraphs in which the phrase occurs. As used
herein the word "or" is not exclusive. As used herein the words "include",
"including" and similar terms shall be construed as if followed by "without
limitation to".
(j) Not a Partnership, Etc. NOTHING IN THIS AGREEMENT IS INTENDED
TO BE OR TO CREATE ANY PARTNERSHIP, JOINT VENTURE, OR OTHER JOINT ENTERPRISE
BETWEEN BNPLC AND SOLECTRON. NEITHER THE EXECUTION OF THIS AGREEMENT NOR THE
ADMINISTRATION OF THIS AGREEMENT OR OTHER DOCUMENTS REFERENCED HEREIN BY BNPLC,
NOR ANY OTHER RIGHT, DUTY OR OBLIGATION OF BNPLC UNDER OR PURSUANT TO THIS
AGREEMENT OR SUCH DOCUMENTS IS INTENDED TO BE OR TO CREATE ANY FIDUCIARY
OBLIGATIONS OF BNPLC TO SOLECTRON.
9
13
10. WAIVER OF JURY TRIAL. BNPLC AND SOLECTRON EACH HEREBY WAIVES ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY OTHER DOCUMENT OR DEALINGS BETWEEN THEM
RELATING TO THIS AGREEMENT OR THE PROPERTY. The scope of this waiver is intended
to be all-encompassing of any and all disputes that may be filed in any court
and that relate to the subject matter of this transaction, including contract
claims, tort claims, breach of duty claims, and all other common law and
statutory claims. Solectron and BNPLC each acknowledge that this waiver is a
material inducement to enter into a business relationship, that each has already
relied on the waiver in entering into this Agreement and the other documents
referred to herein, and that each will continue to rely on the waiver in their
related future dealings. Solectron and BNPLC each further warrants and
represents that it has reviewed this waiver with its legal counsel, and that it
knowingly and voluntarily waives its jury trial rights following consultation
with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT
OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS AGREEMENT OR THE
PROPERTY. In the event of litigation, this Agreement may be filed as a written
consent to a trial by the court.
11. ADDITIONAL RIGHTS OF BNPLC RELATING TO ESCROWED PROCEEDS. BNPLC
shall be entitled to deliver any Escrowed Proceeds it holds on the Designated
Sale Date directly to Solectron or to any Applicable Purchaser purchasing
BNPLC's interest in the Property and the Escrowed Proceeds pursuant to this
Agreement notwithstanding any prior actual or attempted conveyance or assignment
by Solectron, voluntary or otherwise, of any right to receive the same; BNPLC
shall not be responsible for the proper distribution or application by Solectron
or any Applicable Purchaser of any such Escrowed Proceeds paid over to Solectron
or the Applicable Purchaser; and any such payment of Escrowed Proceeds to
Solectron or an Applicable Purchaser shall discharge any obligation of BNPLC to
deliver the same to all Persons claiming an interest therein.
12. SECURITY FOR BNPLC'S OBLIGATIONS. To secure Solectron's right to
purchase the Property pursuant to this Agreement and to recover any damages
caused by a breach of Paragraph 2 by BNPLC, 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
Solectron a lien and security interest against all rights, title and interests
of BNPLC from time to time in and to the Land, Improvements and other Property.
Solectron may enforce such lien and security interest judicially after any such
breach by BNPLC, but not otherwise. Solectron waives any right it has to seek a
deficiency judgement against BNPLC in any action brought for a judicial
foreclosure of such lien and security interest, subject to the condition that
BNPLC unequivocally and effectively waive, following any such judicial
foreclosure of the lien and security interest granted in this paragraph, BNPLC's
right of redemption. Contemporaneously with the execution of this Agreement,
Solectron and BNPLC will execute a memorandum of this Agreement which is in
recordable form and which specifically references the lien granted in this
Paragraph, and Solectron shall be entitled to record such memorandum at any time
prior to the Designated Sale Date.
13. INCOME TAX REPORTING. BNPLC and Solectron intend this Agreement and
the Lease to have a form for income taxes which is different than the form of
this Agreement and the Lease for other purposes, and thus the parties
acknowledge and agree as follows:
(i) FOR PURPOSES OF DETERMINING THEIR RESPECTIVE FEDERAL, STATE
AND LOCAL INCOME TAX OBLIGATIONS, BNPLC and Solectron believe and intend
that this Agreement and the Lease constitute a financing arrangement or
conditional sale. Both BNPLC and Solectron agree to report this
Agreement and the Lease as a financing arrangement or conditional sale
on their respective income tax returns (the "REQUIRED REPORTING"),
unless such Required Reporting is challenged in writing by the Internal
Revenue
10
14
Service or another governmental authority with jurisdiction (a
"TAX CHALLENGE"). Consistent with the foregoing, BNPLC and Solectron
expect that Solectron (and not BNPLC) shall be treated as the true owner
of the Property for income tax purposes, thereby entitling Solectron
(and not BNPLC) to take depreciation deductions and other tax benefits
available to the owner. Solectron shall also report all interest earned
on Escrowed Proceeds as Solectron's income for federal, state and local
income tax purposes. REFERENCES IN THIS AGREEMENT OR IN THE LEASE TO A
"LEASE" OR THE "LEASED PROPERTY" ARE NOT INTENDED FOR INCOME TAX
PURPOSES TO REFLECT THE INTENT OF BNPLC OR SOLECTRON AS TO THE FORM OF
THE TRANSACTIONS COVERED BY, OR THE PROPER CHARACTERIZATION OF, THIS
AGREEMENT AND THE LEASE.
(ii) FOR ALL OTHER PURPOSES, INCLUDING THE DETERMINATION OF THE
APPROPRIATE FINANCIAL ACCOUNTING FOR THIS AGREEMENT AND THE
DETERMINATION OF THEIR RESPECTIVE RIGHTS AND REMEDIES UNDER STATE LAW,
BNPLC and Solectron believe and intend that (i) the Lease constitutes a
true Lease, not a mere financing arrangement, enforceable in accordance
with its express terms (and neither this Paragraph 13 nor the provisions
referencing this Paragraph on the title page of this Agreement nor the
corresponding provisions in the Lease are intended to affect the
enforcement of any other provisions of this Agreement or the Lease) and
(ii) this Agreement shall constitute a separate and independent
contract, enforceable in accordance with the express terms and
conditions set forth herein. In this regard, Solectron acknowledges that
Solectron asked BNPLC to participate in the transactions evidenced by
this Agreement and the Lease as a landlord and owner of the Property,
not as a lender. Although other transactions might have been used to
accomplish similar results, Solectron expects to receive certain
material accounting and other advantages through the use of a lease
transaction. Accordingly, and notwithstanding the Required Reporting for
income tax purposes, Solectron cannot equitably deny that this Agreement
and the Lease should be construed and enforced in accordance with their
respective terms, rather than as a mortgage or other security device, in
any action brought by BNPLC to enforce this Agreement or the Lease.
In the event of a Tax Challenge, BNPLC and Solectron shall each provide to the
other copies of all notices from the Internal Revenue Service or any other
governmental authority presenting the Tax Challenge. Further, before changing
from the Required Reporting because of a Tax Challenge, BNPLC and Solectron
shall each consider in good faith any reasonable suggestions received from the
other party to this Agreement about an appropriate response to the Tax
Challenge; provided, however, that the suggestions are set forth in a notice
delivered no later than thirty Business Days after the suggesting party is first
notified of the Tax Challenge; and, provided further, that when presented with a
Tax Challenge, BNPLC shall have the right to change from the Required Reporting
rather than participate in any litigation or other legal proceeding against the
Internal Revenue Service or another governmental authority. In any event,
Solectron shall indemnify BNPLC and defend and hold BNPLC harmless from and
against all Losses imposed on or asserted against or incurred by BNPLC by reason
of, in connection with or arising out of any such challenge or any resulting
recharacterization of this Agreement or the Lease required by the Internal
Revenue Service or another governmental authority, including any additional
taxes that may become due upon any sale under this Agreement, to the extent (if
any) that such Losses are not offset by tax savings to BNPLC resulting from
additional depreciation deductions or other tax benefits of the
recharacterization.
[The signature pages follow.]
11
15
IN WITNESS WHEREOF, Solectron and BNPLC have caused this Agreement to be
executed as of July 1, 1998.
"SOLECTRON"
SOLECTRON WASHINGTON, INC.
By: /s/ XXXXX X. XXXXX
------------------------
Name (print): XXXXX X. XXXXX
Title: VICE PRESIDENT
16
[Continuation of signature pages to Amended and Restated Purchase Agreement
dated to be effective July 1, 1998]
"BNPLC"
BNP LEASING CORPORATION
By: /s/ XXXXX X. XXX
-------------------------------
Xxxxx X. Xxx, Vice President
17
EXHIBIT A
LEGAL DESCRIPTION
All that certain real property situate in the City of Xxxxxxx, County of
Snohomish, State of Washington, being a portion of the Southwest quarter of
Section 2, and a portion of the Southeast quarter of Section 3, all in Township
28 North, Range 4 East, X.X., and also being a portion of Xxx 0 Xxxxxxx Xxxx
Xxxx/Xxxxxx xx Xxxxxx recorded under Snohomish County Recording Number
8910255010, and being more particularly described as follows:
BEGINNING at the quarter corner common to said Sections 2 and 3;
thence from said point of beginning along the East-West centerline of said
Section 2, South 88(Degree) 10'56" East 1192.73 feet;
thence leaving said East-West centerline South 01(Degree) 49'04" West 347.51
feet;
thence South 26(Degree) 07'32" East 208.83 feet;
thence South 12(Degree) 56'43" East 395.73 feet to the Northerly right of way
line of Xxxxxxx Creek Parkway as deeded to the City of Xxxxxxx under Snohomish
County Recording Number 8801270201, Snohomish County records;
thence along said right of way line of Xxxxxxx Creek Parkway from a tangent that
bears South 77 (Degree) 03'17" West, along the arc of a curve to the left having
a radius of 630.00 feet and a central angle of 37(Degree) 00'43", an arc length
of 406.97 feet;
thence leaving said right of way line North 79(Degree) 36'24" West 1190.79 feet
to the Easterly boundary of the Binding Site Plan/Record of Survey entitled
Seaway Center Two/Intermec recorded under Snohomish County Recording Number
8910255009;
thence along said Easterly boundary North 00(Degree) 50'18" East 955.72 feet to
the East-West centerline of said Section 3;
thence along said East-West centerline South 88(Degree) 33'31" East 136.77 feet
to the point of beginning;
(ALSO KNOWN AS Lot 2F of Binding Site Plan/Record of Survey Seaway Center Five
as recorded under Snohomish County Recording Number 9204015001);
TOGETHER WITH a non-exclusive driveway and access easement as set forth in
document entitled Driveway and Assess Easement Agreement recorded under
Snohomish County Recording Number 9711050088.
Situate in the County of Snohomish, State of Washington
18
EXHIBIT B
DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
NAME: [Solectron or the Applicable Purchaser]
ADDRESS: ___________________
ATTN: ___________________
CITY: ___________________
STATE: ___________________
Zip: ___________________
BNP LEASING CORPORATION, a Delaware corporation (hereinafter called
"Grantor"), for and in consideration of the sum of Ten Dollars ($10.00) and
other valuable consideration paid to Grantor by [Solectron or the Applicable
Purchaser] (hereinafter called "Grantee"), the receipt and sufficiency of which
are hereby acknowledged, does hereby GRANT, SELL, CONVEY, ASSIGN and DELIVER to
Grantee the real property described in Annex A attached hereto and hereby made a
part hereof, together with any buildings and other improvements situated
thereon, any fixtures and other property affixed thereto and all right, title
and interest of Grantor in and to adjacent streets, alleys and rights-of-way
(collectively, the "Property"); provided, however, this conveyance is made by
Grantor and accepted by Grantee subject to all zoning and other ordinances
affecting the Property, all general or special assessments due and payable after
the date hereof, all encroachments, variations in area or in measurements,
boundary line disputes, roadways and other matters not of record which would be
disclosed by a current survey and inspection of the Property, and the
encumbrances listed in Annex B attached hereto and made a part hereof
(collectively, the "Permitted Encumbrances").
TO HAVE AND TO HOLD the Property, together with all and singular the
rights and appurtenances thereto in any wise belonging unto Grantee, its
successors and assigns, forever, and Grantor does hereby bind Grantor and
Grantor's successors to warrant and forever defend all and singular the said
premises unto Grantee, its successors and assigns against every person
whomsoever lawfully claiming, or to claim the same, or any part thereof by,
through or under Grantor, but not otherwise; subject, however, to the Permitted
Encumbrances. Except as expressly set forth in the preceding sentence, Grantor
makes no warranty of title, express or implied.
19
IN WITNESS WHEREOF, this Deed is executed by Grantor on this _____ day
of _________________________________, _______.
The address of Grantee is:
___________________________
___________________________
BNP LEASING CORPORATION
Date: As of ____________ By: ____________________
Its:
Exhibit B - Page 2
20
STATE OF ____________ )
) SS
COUNTY OF ___________ )
On ___________________ before me, ______________________, personally
appeared _____________________ and __________________, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the persons whose
names are subscribed to the within instrument and acknowledged to me that they
executed the same in their authorized capacities, and that by their signatures
on the instrument the person, or the entity upon behalf of which the persons
acted, executed the instrument.
WITNESS my hand and official seal.
Signature _______________________
Exhibit B - Page 3
21
ANNEX A
LEGAL DESCRIPTION
[DRAFTING NOTE: TO THE EXTENT THAT THE "LAND" COVERED BY THE LEASE CHANGES FROM
TIME TO TIME BECAUSE OF ADJUSTMENTS FOR WHICH SOLECTRON REQUESTS BNPLC'S CONSENT
OR APPROVAL AS PROVIDED IN THE LEASE, SO TOO WILL THE DESCRIPTION OF THE LAND
BELOW CHANGE. ANY SUCH CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW
AND THIS "DRAFTING NOTE" WILL BE DELETED BEFORE THE DEED TO WHICH THIS
DESCRIPTION IS ATTACHED IS ACTUALLY EXECUTED AND DELIVERED.]
All that certain real property situate in the City of Xxxxxxx, County of
Snohomish, State of Washington, being a portion of the Southwest quarter of
Section 2, and a portion of the Southeast quarter of Section 3, all in Township
28 North, Range 4 East, X.X., and also being a portion of Xxx 0 Xxxxxxx Xxxx
Xxxx/Xxxxxx xx Xxxxxx recorded under Snohomish County Recording Number
8910255010, and being more particularly described as follows:
BEGINNING at the quarter corner common to said Sections 2 and 3;
thence from said point of beginning along the East-West centerline of said
Section 2, South 88(Degree) 10'56" East 1192.73 feet;
thence leaving said East-West centerline South 01(Degree) 49'04" West 347.51
feet;
thence South 26(Degree) 07'32" East 208.83 feet;
thence South 12(Degree) 56'43" East 395.73 feet to the Northerly right of way
line of Xxxxxxx Creek Parkway as deeded to the City of Xxxxxxx under Snohomish
County Recording Number 8801270201, Snohomish County records;
thence along said right of way line of Xxxxxxx Creek Parkway from a tangent that
bears South 77(Degree) 03'17" West, along the arc of a curve to the left having
a radius of 630.00 feet and a central angle of 37(Degree) 00'43", an arc length
of 406.97 feet;
thence leaving said right of way line North 79(Degree) 36'24" West 1190.79 feet
to the Easterly boundary of the Binding Site Plan/Record of Survey entitled
Seaway Center Two/Intermec recorded under Snohomish County Recording Number
8910255009;
thence along said Easterly boundary North 00(Degree) 50'18" East 955.72 feet to
the East-West centerline of said Section 3;
thence along said East-West centerline South 88(Degree) 33'31" East 136.77 feet
to the point of beginning;
(ALSO KNOWN AS Lot 2F of Binding Site Plan/Record of Survey Seaway Center Five
as recorded under Snohomish County Recording Number 9204015001);
TOGETHER WITH a non-exclusive driveway and access easement as set forth in
document entitled Driveway and Assess Easement Agreement recorded under
Snohomish County Recording Number 9711050088.
Situate in the County of Snohomish, State of Washington
Exhibit B - Page 4
22
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 LEASE FROM TIME TO TIME OR BECAUSE OF
SOLECTRON'S REQUEST FOR BNPLC'S CONSENT OR APPROVAL TO AN ADJUSTMENT AS PROVIDED
IN THE LEASE.]
This conveyance is subject to all encumbrances not constituting a "Lien
Removable by BNPLC" (as defined in the List of Defined Terms attached to the
Lease Agreement referenced in item #1 of the list below), including the
following matters to the extent the same are still valid and in force:
- Amended and Restated Lease Agreement dated as of July 1, 1998, by and
between BNP Leasing Corporation, as lessor, and Solectron Washington,
Inc., as lessee.
- Liens securing TAXES AND ASSESSMENTS, not yet due and payable.
- EASEMENT AND THE TERMS AND CONDITIONS THEREOF:
GRANTEE: Public Utility District No. 1 of Snohomish County
PURPOSE: Underground/overhead electric distribution system
AREA AFFECTED: Ten foot wide strips adjacent to right
of way known as Xxxxxxx Creek Parkway as conveyed
to the City of Xxxxxxx by deed recorded under
Snohomish County Recording Number 8801270201; and
the North boundary of Seaway Blvd., TOGETHER WITH
the right to extend and establish switch cabinets,
transformers, pedestals and other appurtenances
beyond said easement area onto adjacent property
of the grantor
RECORDED: July 26, 1988
RECORDING NO.: 0000000000
Contains covenant prohibiting structures over said easement or other
activity which might endanger the underground system.
- EASEMENT AND THE TERMS AND CONDITIONS THEREOF:
GRANTEE: City of Xxxxxxx
PURPOSE: Utilities, drainage and detention pond facilities
and appurtenances
AREA AFFECTED: Portions of subject property
RECORDED: December 13, 1988
RECORDING NO.: 8812130477
- Right to make necessary slopes for cuts or fills upon property herein
described as granted to City of Xxxxxxx by deed recorded under Recording
No. 8801270201.
Exhibit B - Page 5
23
- ALL COVENANTS, CONDITIONS, RESTRICTIONS, RESERVATIONS, EASEMENTS OR
OTHER SERVITUDES, if any, disclosed by Binding Site Plan/Survey as
recorded under Snohomish County Recording Number 9204015001.
- The following as and to extent shown on as-built Survey prepared by W&H
Pacific on March 20, 1997, under Job No. 0-0000-0000:
A) Fence from Southerly adjoiner extends 2.2 feet Northerly of our
South property line.
B) Bird feeder post 0.79 feet South of North property line (belongs
to property adjoiner to North).
C) Property adjoiner to the North wood fence extends 0.11 feet South
of subject property's North line.
D) Along Easterly property line - 1/2 light pole onto subject
property.
- DRIVEWAY AND ACCESS EASEMENT AGREEMENT AND THE TERMS AND CONDITIONS
THEREOF:
GRANTEE: Cintas Sales Corporation, an Ohio Corporation
PURPOSE: Ingress, egress and utilities and related rights
as in said instrument
AREA AFFECTED: Southeasterly portion of subject property
RECORDED: November 5, 1997
RECORDING NO.: 9711050088
Said easement contains a covenant to bear equal share of cost of
construction, maintenance or repair of same.
- EASEMENT AND THE TERMS AND CONDITIONS THEREOF:
GRANTEE: City of Xxxxxxx, a municipal corporation
PURPOSE: Sewer system and related rights as in said
instrument
AREA AFFECTED: 20 foot wide strip of land within Lot 2F
RECORDED: November 10, 1997
RECORDING NO.: 9711100557
- EASEMENT AND THE TERMS AND CONDITIONS THEREOF:
GRANTEE: City of Xxxxxxx, a municipal corporation
PURPOSE: Water system and related rights as in said
instrument
AREA AFFECTED: 15 foot wide strips of land within Lot 2F
RECORDED: November 12, 1997
RECORDING NO.: 9711120701
Exhibit B - Page 6
24
EXHIBIT C
See the form of Washington Excise Tax Affidavit attached to and made a part of
this Exhibit C.
25
EXHIBIT D
XXXX OF SALE AND ASSIGNMENT OF
LEASE AND INTANGIBLE ASSETS
Reference is made to: (1) that certain Amended and Restated Purchase
Agreement between BNP Leasing Corporation ("ASSIGNOR") and Solectron Washington,
Inc., dated as of July 1, 1998 (the "PURCHASE AGREEMENT"); (2) that certain
Amended and Restated Lease Agreement between Assignor, as landlord, and
Solectron Washington, Inc., as tenant, dated as of July 1, 1998 (the "LEASE");
and (3) that certain Amended and Restated Closing Certificate and Agreement by
Solectron Washington, Inc. in favor of Assignor, dated as of July 1, 1998 (the
"CLOSING CERTIFICATE"). (Capitalized terms used and not otherwise defined in
this document are intended to have the meanings assigned to them in the List of
Defined Terms attached to and made a part of the Lease.)
As contemplated by the Purchase Agreement, Assignor hereby sells, transfers
and assigns unto [SOLECTRON 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 Lease;
(b) any pending or future award made because of any condemnation affecting
the Property or because of any conveyance to be made in lieu thereof, and any
unpaid award for damage to the Property and any unpaid proceeds of insurance or
claim or cause of action for damage, loss or injury to the Property; and
(c) all other property included within the definition of "Property" as set
forth in the Purchase Agreement, including but not limited to any of the
following transferred to Assignor by the tenant pursuant to Paragraph 8 of the
Lease or otherwise acquired by Assignor, at the time of the execution and
delivery of the Lease and Purchase Agreement or thereafter, by reason of
Assignor's status as the owner of any interest in the Property: (1) any goods,
equipment, furnishings, furniture, chattels and tangible personal property of
whatever nature that are located on the Property and all renewals or
replacements of or substitutions for any of the foregoing; (ii) the rights of
Assignor, existing at the time of the execution of the Lease and Purchase
Agreement or thereafter arising, under Permitted Encumbrances or Development
Contracts (both as defined in the Lease); and (iii) any other permits, licenses,
franchises, certificates, and other rights and privileges related to the
Property that Assignee would have acquired if Assignee had itself purchased the
land included in the Property.
Provided, however, excluded from this conveyance and reserved to Assignor are
any rights or privileges of Assignor under the following ("EXCLUDED RIGHTS"):
(1) the indemnities set forth in the Lease and the Closing Certificate, whether
such rights are presently known or unknown, including rights of the Assignor to
be indemnified against environmental claims of third parties as provided in the
Closing Certificate which may not presently be known, (2) provisions in the
Lease that establish the right of Assignor to recover any accrued unpaid rent
under the Lease which may be outstanding as of the date hereof, (3) agreements
between Assignor and "BNPLC's Parent" or any "Participant," both as defined in
the Lease, or any modification or extension thereof, or (4) any other instrument
being delivered to Assignor contemporaneously herewith pursuant to the Purchase
Agreement. To the extent that this conveyance does include any rights to receive
future payments under the Lease, such rights ("INCLUDED RIGHTS") shall be
subordinate to Assignor's Excluded Rights, and Assignee hereby waives any rights
to enforce Included Rights until such time as Assignor has received all payments
to which it remains entitled by reason of Excluded Rights. If any amount shall
be paid to Assignee on account of any Included Rights at any time before
Assignor has received all payments to which it is entitled
26
because of Excluded Rights, such amount shall be held in trust by Assignee for
the benefit of Assignor, shall be segregated from the other funds of Assignee
and shall forthwith be paid over to Assignor to be held by Assignor as
collateral for, or then or at any time thereafter applied in whole or in part by
Assignor against, the payments due to Assignor because of Excluded Rights,
whether matured or unmatured, in such order as Assignor shall elect.
Assignor does for itself and its successors covenant and agree to warrant
and defend the title to the property assigned herein against the just and lawful
claims and demands of any person claiming under or through a Lien Removable by
BNPLC, but not otherwise.
Assignee hereby assumes and agrees to keep, perform and fulfill Assignor's
obligations, if any, relating to any permits or contracts, under which Assignor
has rights being assigned herein.
IN WITNESS WHEREOF, the parties have executed this instrument as
of _______________, ________.
ASSIGNOR:
BNP LEASING CORPORATION a Delaware corporation
By: _________________________
Its: ________________________
ASSIGNEE:
[SOLECTRON OR THE APPLICABLE PURCHASER], a
_______________ corporation
By: _________________________
Its: ________________________
Exhibit D - Page 2
27
STATE OF ____________ )
) SS
COUNTY OF ___________ )
On ___________________ before me, ____________________ , personally
appeared ___________________________ and _______________________, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
persons whose names are subscribed to the within instrument and acknowledged to
me that they executed the same in their authorized capacities, and that by their
signatures on the instrument the person, or the entity upon behalf of which the
persons acted, executed the instrument.
WITNESS my hand and official seal.
Signature ________________________
STATE OF ____________ )
) SS
COUNTY OF ___________ )
On ___________________ before me,______________________ , personally
appeared _______________________ and ________________________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the persons
whose names are subscribed to the within instrument and acknowledged to me that
they executed the same in their authorized capacities, and that by their
signatures on the instrument the person, or the entity upon behalf of which the
persons acted, executed the instrument.
WITNESS my hand and official seal.
Signature _________________________
Exhibit D - Page 3
28
ANNEX A
LEGAL DESCRIPTION
[DRAFTING NOTE: TO THE EXTENT THAT THE "LAND" COVERED BY THE LEASE CHANGES FROM
TIME TO TIME BECAUSE OF ADJUSTMENTS FOR WHICH SOLECTRON REQUESTS BNPLC'S CONSENT
OR APPROVAL AS PROVIDED IN THE LEASE, SO TOO WILL THE DESCRIPTION OF THE LAND
BELOW CHANGE. ANY SUCH CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW
AND THIS "DRAFTING NOTE" WILL BE DELETED BEFORE THE DOCUMENT TO WHICH THIS
DESCRIPTION IS ATTACHED IS ACTUALLY EXECUTED AND DELIVERED.]
All that certain real property situate in the City of Xxxxxxx, County of
Snohomish, State of Washington, being a portion of the Southwest quarter of
Section 2, and a portion of the Southeast quarter of Section 3, all in Township
28 North, Range 4 East, X.X., and also being a portion of Xxx 0 Xxxxxxx Xxxx
Xxxx/Xxxxxx xx Xxxxxx recorded under Snohomish County Recording Number
8910255010, and being more particularly described as follows:
BEGINNING at the quarter corner common to said Sections 2 and 3;
thence from said point of beginning along the East-West centerline of said
Section 2, South 88(Degree) 10'56" East 1192.73 feet;
thence leaving said East-West centerline South 01(Degree) 49'04" West 347.51
feet;
thence South 26(Degree) 07'32" East 208.83 feet;
thence South 12(Degree) 56'43" East 395.73 feet to the Northerly right of way
line of Xxxxxxx Creek Parkway as deeded to the City of Xxxxxxx under Snohomish
County Recording Number 8801270201, Snohomish County records;
thence along said right of way line of Xxxxxxx Creek Parkway from a tangent that
bears South 77(Degree) 03'17" West, along the arc of a curve to the left having
a radius of 630.00 feet and a central angle of 37(Degree) 00'43", an arc length
of 406.97 feet; 7 thence leaving said right of way line North 79(Degree) 36'24"
West 1190.79 feet to the Easterly boundary of the Binding Site Plan/Record of
Survey entitled Seaway Center Two/Intermec recorded under Snohomish County
Recording Number 8910255009;
thence along said Easterly boundary North 00(Degree) 50'18" East 955.72 feet to
the East-West centerline of said Section 3;
thence along said East-West centerline South 88(Degree) 33'31" East 136.77 feet
to the point of beginning;
(ALSO KNOWN AS Lot 2F of Binding Site Plan/Record of Survey Seaway Center Five
as recorded under Snohomish County Recording Number 9204015001);
TOGETHER WITH a non-exclusive driveway and access easement as set forth in
document entitled Driveway and Assess Easement Agreement recorded under
Snohomish County Recording Number 9711050088.
Situate in the County of Snohomish, State of Washington
Exhibit D - Page 4
29
EXHIBIT E
ACKNOWLEDGMENT OF DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
THIS ACKNOWLEDGMENT OF DISCLAIMER OF REPRESENTATIONS AND WARRANTIES (this
"Certificate") is made as of ___________________, ____, by [Solectron 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 deed and (2) a Xxxx of Sale and Assignment of Lease and Intangible
Assets (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 List of Defined Terms attached to the Amended
and Restated Purchase Agreement between BNPLC and Solectron Washington, Inc.
dated as of July 1, 1998, pursuant to which 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 ________________, ____.
[SOLECTRON OR THE APPLICABLE PURCHASER]
By: ___________________________
Name: ______________________
Title:______________________
30
EXHIBIT F
[Intentionally deleted.]
31
EXHIBIT G
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]
32
CORPORATE RESOLUTIONS OF
BNP LEASING CORPORATION
WHEREAS, pursuant to that certain Purchase Agreement (herein called the
"Purchase Agreement") dated as of July 1, 1998, by and between BNP Leasing
Corporation (the "Corporation") and Solectron Washington, Inc. ("Purchaser"),
the Corporation agreed to sell and Purchaser agreed to purchase or cause the
Applicable Purchaser (as defined in the Purchase Agreement) to purchase the
Corporation's interest in the property (the "Property") located in Everett,
Washington more particularly described therein.
NOW THEREFORE, BE IT RESOLVED, that the Board of Directors of the
Corporation, in its best business judgment, deems it in the best interest of the
Corporation and its shareholders that the Corporation convey the Property to
Purchaser or the Applicable Purchaser pursuant to and in accordance with the
terms of the Purchase Agreement.
RESOLVED FURTHER, that the proper officers of the Corporation, and each
of them, are hereby authorized and directed in the name and on behalf of the
Corporation to cause the Corporation to fulfill its obligations under the
Purchase Agreement.
RESOLVED FURTHER, that the proper officers of the Corporation, and each
of them, are hereby authorized and directed to take or cause to be taken any and
all actions and to prepare or cause to be prepared and to execute and deliver
any and all deeds and other documents, instruments and agreements that shall be
necessary, advisable or appropriate, in such officer's sole and absolute
discretion, to carry out the intent and to accomplish the purposes of the
foregoing resolutions.
Exhibit G - Page 2
33
EXHIBIT H
BNP LEASING CORPORATION
000 X. XXXXXXX
XXXXX 0000
XXXXXX, XXXXX 00000
______________, ____________
[Title Insurance Company]
___________________________
___________________________
___________________________
Re: Recording of (1) Deed and (2) Xxxx of Sale and Assignment of Lease
and Intangible Assets to [SOLECTRON OR THE APPLICABLE PURCHASER] ("Purchaser")
Ladies and Gentlemen:
BNP Leasing Corporation has executed and delivered to Purchaser (1) a
Deed and (2) Xxxx of Sale and Assignment of Lease and Intangible Assets, each in
the form attached to this letter. You are hereby authorized and directed to
record such documents at the request of Purchaser.
Sincerely,
34
EXHIBIT I
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.
To inform [SOLECTRON OR THE APPLICABLE PURCHASER] (the "Transferee")
that withholding of tax is not required upon the disposition of a 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
00-0000000;
3. The office address of the Seller is ______________
________________________________ .
The Seller understands that this certification may be disclosed to the
Internal Revenue Service 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. The Seller
hereby agrees to indemnify and hold the Transferee harmless from and against any
and all obligations, liabilities, claims, losses, actions, causes of action,
demands, rights, damages, costs, and expenses (including but not limited to
court costs and attorneys' fees) incurred by the Transferee as a result of any
false misleading statement contained herein.
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: ___________, ____.
BNP LEASING CORPORATION, a Delaware corporation
By: _______________________________________
Name: _________________________________
Title: ________________________________
35
EXHIBIT J
INDEMNITY FOR LIENS REMOVABLE BY BNPLC
THIS INDEMNITY AGREEMENT (this "AGREEMENT") is made as of
_________________, _____, by SOLECTRON WASHINGTON, INC., a California
corporation ("PURCHASER") [OR THE APPLICABLE PURCHASER] and BNP LEASING
CORPORATION, a Delaware corporation ("SELLER") and ___________________________
("TITLE COMPANY").
R E C I T A L S
A. Purchaser is acquiring the land described in Annex A attached hereto
and any improvements located thereon (the "PROPERTY") pursuant to the terms and
conditions of that certain Amended and Restated Purchase Agreement dated as of
July 1, 1998 by between Seller and Purchaser [or Solectron] (the "PURCHASE
AGREEMENT").
B. In connection with its acquisition of the Property, Seller has been
notified as contemplated by the Purchase Agreement that the matters described in
Annex B attached hereto (the "RELEVANT ENCUMBRANCES") have been identified as
encumbrances upon title to the Property and that such matters, to the extent
valid, constitute Liens Removable by BNPLC (as defined below).
C. Because of such notice to Seller, Seller is required by the Purchase
Agreement to tender this Indemnity Agreement to Purchaser.
NOW, THEREFORE, in consideration of the above recitals and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
Seller must promptly remove any of the Relevant Encumbrances that
constitute "LIENS REMOVABLE BY BNPLC" (which for purposes of this Indemnity
Agreement shall have the meaning assigned to it in the List of Defined Terms
attached to the Purchase Agreement). Seller must also pay, indemnify and hold
harmless Purchaser, the Title Company, the Purchaser's successors and assigns as
to the Property and the Title Company's successors and assigns as to any title
insurance policy issued to Purchaser by the Title Company covering the Property
from and against any and all liabilities, damages, claims, actions, judgments,
costs and expenses (including, without limitation, reasonable attorneys' fees)
caused by Seller's failure to promptly remove any of the Relevant Encumbrances
that constitute Liens Removable by BNPLC.
Nothing herein shall be construed as an admission by Seller that any of
the Relevant Encumbrances do constitute Liens Removable by BNPLC or as imposing
a duty upon Seller to remove or defend against claims arising out of any
Relevant Encumbrances that do not constitute Liens Removable by BNPLC. Nothing
herein contained shall limit Purchaser's rights or remedies under the Purchase
Agreement because of any failure by BNPLC to remove all Liens Removable by BNPLC
before conveying the Property.
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF WASHINGTON WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
SELLER, PURCHASER AND THE TITLE COMPANY EACH HEREBY WAIVES ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY OTHER DOCUMENT, OR ANY DEALINGS BETWEEN
THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT
IS BEING ESTABLISHED. The scope of this waiver is intended to be all-
36
encompassing of any and all disputes that may be filed in any court and that
relate to the subject matter of this transaction, including, without limitation,
contract claims, tort claims, breach of duty claims, and all other common law
and statutory claims. Purchaser, Seller and the Title Company each acknowledge
that this waiver is a material inducement to enter into a business relationship,
that each has already relied on the waiver in entering into this Agreement and
the other documents referred to herein, and that each will continue to rely on
the waiver in their related future dealings. Purchaser, Seller and the Title
Company each further warrant and represent that it has reviewed this waiver with
its legal counsel, and that it knowingly and voluntarily waives its jury trial
rights following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS AGREEMENT OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LEASE
OR THIS AGREEMENT. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
Exhibit J - Page 2
37
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"Seller"
BNP LEASING CORPORATION, a Delaware corporation
By: _______________________________
Name: _________________________
Title: ________________________
"Purchaser"
SOLECTRON WASHINGTON, INC., a California
corporation
By: _______________________________
Name: _________________________
Title: ________________________
"Title Company"
_______________________, a
___________________________
By: _______________________________
Name: _________________________
Title: ________________________
Exhibit J - Page 3
38
ANNEX A
LEGAL DESCRIPTION
[DRAFTING NOTE: TO THE EXTENT THAT THE "LAND" COVERED BY THE LEASE CHANGES FROM
TIME TO TIME BECAUSE OF ADJUSTMENTS FOR WHICH SOLECTRON REQUESTS BNPLC'S CONSENT
OR APPROVAL AS PROVIDED IN THE LEASE, SO TOO WILL THE DESCRIPTION OF THE LAND
BELOW CHANGE. ANY SUCH CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW
AND THIS "DRAFTING NOTE" WILL BE DELETED BEFORE THE DOCUMENT TO WHICH THIS
DESCRIPTION IS ATTACHED IS ACTUALLY EXECUTED AND DELIVERED.]
All that certain real property situate in the City of Xxxxxxx, County of
Snohomish, State of Washington, being a portion of the Southwest quarter of
Section 2, and a portion of the Southeast quarter of Section 3, all in Township
28 North, Range 4 East, X.X., and also being a portion of Xxx 0 Xxxxxxx Xxxx
Xxxx/Xxxxxx xx Xxxxxx recorded under Snohomish County Recording Number
8910255010, and being more particularly described as follows:
BEGINNING at the quarter corner common to said Sections 2 and 3;
thence from said point of beginning along the East-West centerline of said
Section 2, South 88(Degree) 10'56" East 1192.73 feet;
thence leaving said East-West centerline South 01(Degree) 49'04" West 347.51
feet;
thence South 26(Degree) 07'32" East 208.83 feet;
thence South 12(Degree) 56'43" East 395.73 feet to the Northerly right of way
line of Xxxxxxx Creek Parkway as deeded to the City of Xxxxxxx under Snohomish
County Recording Number 8801270201, Snohomish County records;
thence along said right of way line of Xxxxxxx Creek Parkway from a tangent that
bears South 77(Degree) 03'17" West, along the arc of a curve to the left having
a radius of 630.00 feet and a central angle of 37(Degree) 00'43", an arc length
of 406.97 feet;
thence leaving said right of way line North 79(Degree) 36'24" West 1190.79 feet
to the Easterly boundary of the Binding Site Plan/Record of Survey entitled
Seaway Center Two/Intermec recorded under Snohomish County Recording Number
8910255009;
thence along said Easterly boundary North 00(Degree) 50'18" East 955.72 feet to
the East-West centerline of said Section 3;
thence along said East-West centerline South 88(Degree) 33'31" East 136.77 feet
to the point of beginning;
(ALSO KNOWN AS Lot 2F of Binding Site Plan/Record of Survey Seaway Center Five
as recorded under Snohomish County Recording Number 9204015001);
TOGETHER WITH a non-exclusive driveway and access easement as set forth in
document entitled Driveway and Assess Easement Agreement recorded under
Snohomish County Recording Number 9711050088.
Situate in the County of Snohomish, State of Washington
Exhibit J - Page 4
39
ANNEX B
Relevant Encumbrances
[THIS ANNEX IS TO BE COMPLETED BY A LIST OF POSSIBLE LIENS REMOVABLE BY BNPLC
IDENTIFIED BY SOLECTRON AND AGAINST WHICH SOLECTRON HAS NOT BEEN ABLE TO OBTAIN
TITLE INSURANCE.]
Exhibit J - Page 1
