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EXHIBIT 10.5
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$16,000,000
AMENDED AND RESTATED
PURCHASE AGREEMENT
BETWEEN
BNP LEASING CORPORATION
("BNPLC")
AND
FORCE COMPUTERS, INC.
("FCI")
JULY 16, 1998
(SAN JOSE, CALIFORNIA)
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PURSUANT TO AND AS MORE PARTICULARLY PROVIDED IN PARAGRAPH 15 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 15 OF THIS AGREEMENT, BNPLC AND FCI EXPECT THAT FCI (AND
NOT BNPLC) SHALL BE TREATED AS THE TRUE OWNER OF THE PROPERTY FOR INCOME TAX
PURPOSES, THEREBY ENTITLING FCI (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 FCI'S OPTIONS AND OBLIGATIONS ON THE DESIGNATED SALE DATE............................1
(A) Right to Purchase; Right and Obligation to Remarket...........................1
(B) Determination of Fair Market Value............................................3
(C) Designation of the Purchaser..................................................3
2 FCI'S RIGHTS AND OPTIONS AFTER THE DESIGNATED SALE DATE..............................3
(A) FCI's Extended Right to Remarket..............................................3
(B) Definition of Minimum Extended Remarketing Price..............................4
(C) BNPLC's Right to Sell.........................................................5
(D) FCI's Right to Excess Sales Proceeds..........................................5
3 TERMS OF CONVEYANCE UPON PURCHASE....................................................5
4 SURVIVAL AND TERMINATION OF THE RIGHTS AND OBLIGATIONS OF FCI AND BNPLC..............6
(A) Status of this Agreement Generally............................................6
(B) Election by FCI to Terminate the Purchase Option and FCI's Initial Remarketing
Rights and Obligations Prior to the Base Rent Commencement Date...............6
(C) Election by BNPLC to Terminate the Purchase Option and FCI's Initial
Remarketing Rights and Obligations............................................7
(D) Automatic Termination of Certain Rights of FCI................................7
(E) Termination of FCI's Extended Remarketing Rights to Permit a Sale by BNPLC....7
(F) Payment Only to BNPLC.........................................................8
(G) Remedies Under the Other Operative Documents..................................8
5 EFFECT OF SALE UPON INTERVENING ENCUMBRANCES.........................................8
6. OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS OF FCI...............................8
(A) No Default or Violation.......................................................8
(B) No Suits......................................................................9
(C) Enforceability................................................................9
(D) Organization..................................................................9
(E) Omissions.....................................................................9
7 CERTAIN REMEDIES CUMULATIVE..........................................................9
8. ATTORNEYS' FEES AND LEGAL EXPENSES...................................................9
9. ESTOPPEL CERTIFICATE.................................................................9
10. SUCCESSORS AND ASSIGNS..............................................................10
11. MISCELLANEOUS.......................................................................10
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(A) Notices......................................................................10
(B) Severability.................................................................12
(C) No Implied Waiver............................................................12
(D) NO IMPLIED REPRESENTATIONS BY BNPLC..........................................12
(E) Entire Agreement.............................................................12
(F) Time is of the Essence.......................................................12
(G) Governing Law................................................................12
(H) Paragraph Headings...........................................................13
(I) Other Terms and References...................................................13
(J) Not a Partnership, Etc.......................................................13
12. WAIVER OF JURY TRIAL................................................................13
13. ADDITIONAL RIGHTS OF BNPLC RELATING TO ESCROWED PROCEEDS............................14
14. SECURITY FOR BNPLC'S OBLIGATIONS....................................................14
15. INCOME TAX REPORTING................................................................14
Exhibits and Schedules
Exhibit A....................................................................Legal Description
Exhibit B................................................................Special Warranty Deed
Exhibit C...............................................Preliminary Change of Ownership Report
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...................................................................FIRPTA Certificate
Exhibit J...............................................Indemnity for Liens Removable by BNPLC
Exhibit K...............................................Notice by FCI of Election to Terminate
List of Defined Terms.......................................................Shared Definitions
(ii)
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AMENDED AND RESTATED
PURCHASE AGREEMENT
This PURCHASE AGREEMENT (this "AGREEMENT"), by and between BNP LEASING
CORPORATION, a Delaware corporation ("BNPLC"), and FORCE COMPUTERS, INC., a
Delaware corporation ("FCI"), is dated as of July 16, 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 the Amended and Restated Lease
Agreement dated of even date herewith between BNPLC, as landlord, and FCI, as
tenant. By this reference, such List of Defined Terms is incorporated into and
made a part of this Agreement for all purposes.)
RECITALS
A. Pursuant to the Existing Contract, which covers the Land described in
Exhibit A, BNPLC acquired the Land and any appurtenances thereto from Seller
contemporaneously with the execution of a Purchase Agreement dated July 16,
1998.
B. Contemporaneously herewith FCI and BNPLC are executing an Amended and
Restated Lease Agreement dated the date hereof pursuant to which BNPLC has
agreed to lease to FCI certain Land and Improvements thereon which are described
in the Lease and to provide to FCI funding for the construction of Improvements
to be owned by BNPLC. The Amended and Restated Lease (as from time to time
supplemented, amended or restated, the "LEASE") incorporates changes to a prior
Lease Agreement dated July 16, 1998, and supersedes and replaces the prior Lease
Agreement in its entirety. (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".)
C. Contemporaneously herewith FCI and BNPLC are executing a Construction
Management Agreement dated the date hereof (as from time to time supplemented,
amended or restated, the "CONSTRUCTION MANAGEMENT AGREEMENT"), pursuant to which
BNPLC has authorized FCI to construct certain improvements on the land covered
by the Lease and agreed to provide a construction allowance for such
construction on and subject to the terms and conditions described therein.
D. Contemporaneously herewith FCI is executing an Amended and Restated
Closing Certificate and Agreement dated the date hereof (as from time to time
supplemented, amended or restated, the "CLOSING CERTIFICATE"), pursuant to which
FCI has made certain representations to BNPLC concerning the Property and has
agreed to indemnify BNPLC for certain matters relating to the Property. The
Amended and Restated Closing Certificate incorporates changes to a prior Closing
Certificate dated as of July 16, 1998, and supersedes and replaces the prior
Closing Certificate in its entirety.
E. FCI and BNPLC are executing this Amended and Restated Purchase
Agreement dated the date hereof (as from time to time supplemented, amended or
restated the "PURCHASE AGREEMENT") pursuant to which FCI has agreed to purchase
or arrange for the purchase of the Property as more particularly provided
herein. The Amended and Restated Purchase Agreement incorporates changes to a
prior Purchase Agreement dated as of July 16, 1998, and supersedes and replaces
the prior Purchase Agreement in its entirety.
AGREEMENTS
1. FCI'S OPTIONS AND OBLIGATIONS ON THE DESIGNATED SALE DATE.
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(A) Right to Purchase; Right and Obligation to Remarket. Whether
or not an Event of Default shall have occurred and be continuing or the Lease
shall have been terminated, but subject to Paragraph 4 below:
(1) FCI shall have the right (the "PURCHASE OPTION") to
purchase or cause an Affiliate of FCI to purchase BNPLC's interest in
the Property and in Escrowed Proceeds, if any, on the Designated Sale
Date for a cash price equal to the Break Even Price. As used herein,
"BREAK EVEN PRICE" means an amount equal, on the Designated Sale Date,
to Stipulated Loss Value, plus all costs and expenses (including
appraisal costs, withholding taxes (if any) other than Excluded Taxes,
and Attorneys' Fees) incurred in connection with any sale of BNPLC's
interests in the Property under this Agreement or in connection with
collecting payments due hereunder, and plus an amount equal to the
Balance of Unpaid Construction-Period Indemnity Payments, but less the
amount of any Deductible Judgment that FCI may elect to pay on or before
the Designated Sale Date in order to remove the Deductible Judgment as a
Lien against the Property. 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 FCI elected not
to pay pursuant to subparagraph 5(e)(ii) of the Lease, plus interest
accruing at the Default Rate, compounded annually, on each such payment
from the date such payment would have become but for FCI's election not
to pay it as permitted by subparagraph 5(e)(ii) of the Lease.
(2) If for any reason whatsoever (including any
termination of FCI's Purchase Option as described in subparagraph 4(D)
below), neither FCI nor an Affiliate of FCI purchases BNPLC's interest
in the Property and in any Escrowed Proceeds on the Designated Sale Date
as provided in the preceding subparagraph 1(A)(1), then FCI shall have
the following rights and obligations (collectively, "FCI'S INITIAL
REMARKETING RIGHTS AND OBLIGATIONS"):
(a) First, FCI shall have the right (but not the
obligation) to cause an Applicable Purchaser who is not an
Affiliate of FCI to purchase BNPLC's interest in the Property and
any Escrowed Proceeds on the Designated Sale Date for a net cash
purchase price not below the lesser of (I) Fair Market Value, or
(II) the Break Even Price. If, however, a net cash price actually
tendered or to be tendered to BNPLC by an Applicable Purchaser
identified by FCI in accordance with the preceding sentence is
below the amount equal to the Break Even Price less any
Supplemental Payment tendered by FCI as described below, then
BNPLC may affirmatively elect to decline such tender and to keep
the Property and any Escrowed Proceeds rather than sell to the
Applicable Purchaser (a "VOLUNTARY RETENTION OF THE PROPERTY").
(b) Second, if the cash price actually paid by an
Applicable Purchaser to BNPLC on the Designated Sale Date exceeds
the Break Even Price, FCI 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 FCI to BNPLC under the
other Operative Documents.
(c) Third, if for any reason whatsoever (including
any failure of FCI to cause an Applicable Purchaser to tender a
purchase price to BNPLC or any Voluntary Retention of the
Property) the amount of the Break Even Price exceeds any cash
sales proceeds actually received by BNPLC on the Designated Sale
Date in connection with a sale of BNPLC's interest in the
Property and any Escrowed Proceeds pursuant to this Agreement
(such excess being hereinafter called a "DEFICIENCY"), then FCI
shall have the obligation to pay to BNPLC on the Designated Sale
Date a supplemental payment (the "SUPPLEMENTAL PAYMENT") equal to
the
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lesser of the (1) the Deficiency or (2) Maximum Remarketing
Obligation. As used herein, "MAXIMUM REMARKETING OBLIGATION"
means a dollar amount determined in accordance with the following
provisions:
(1) "MAXIMUM REMARKETING OBLIGATION" will
equal the product of (i) Stipulated Loss Value on the
Designated Sale Date, times (ii) 100% minus the Residual
Risk Percentage, provided that both of the following
conditions are satisfied:
(x) The Designated Sale Date shall
occur on the first Business Day of August, 2003, as
provided in clause (1) of the definition of
Designated Sale Date in the List of Defined Terms
attached to the Lease; and
(y) No Event of Default, other than
an Issue 97-1 Non-performance-related Subjective
Event of Default, shall occur on or be continuing
on the Designated Sale Date.
(2) If either of the conditions listed in
subparagraph 1) preceding are not satisfied, "MAXIMUM
REMARKETING OBLIGATION" will equal the Break Even Price.
Notwithstanding the foregoing, in the event of any Voluntary
Retention of the Property, the amount of the Supplemental Payment
calculated as provided in this subparagraph (c) will be reduced
(but not below zero) by the amount of any Escrowed Proceeds held
by and that will be retained by BNPLC after the Designated Sale
Date.
If any Supplemental Payment or other amount payable to BNPLC pursuant to this
subparagraph 1(A) is not actually paid to BNPLC on the Designated Sale Date, FCI
shall pay interest on the past due amount computed at the Default Rate from the
Designated Sale Date. However, FCI shall be entitled to a credit against the
interest required by the preceding sentence equal to the Base Rent, if any,
actually paid by FCI pursuant to the Lease for any period after the Designated
Sale Date.
(B) Determination of Fair Market Value. To give BNPLC the
opportunity before the Designated Sale Date to have Fair Market Value determined
by an appraiser (as provided in the definition of Fair Market Value), FCI must,
unless FCI concedes that Fair Market Value will be no less than the Break Even
Price on the Designated Sale Date, provide BNPLC with a Remarketing Notice. As
used in this Agreement, "REMARKETING NOTICE" means a notice given by FCI 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 FCI does not concede that Fair
Market Value will be greater than the Break Even Price. No Remarketing Notice
will be required if FCI does concede that Fair Market Value will equal or exceed
the Break Even Price on the Designated Sale Date. But if for any reason
(including any acceleration of the Designated Sale Date as provided in the
definition thereof in the List of Defined Terms attached to the Lease) FCI 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.
(C) Designation of the Purchaser. To give BNPLC the opportunity
before the Designated Sale Date to prepare the deed and other documents that
BNPLC must tender pursuant to Paragraph 3
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(collectively, the "SALE CLOSING DOCUMENTS"), FCI must, by a notice to BNPLC
given at least twenty days prior to the Designated Sale Date, specify
irrevocably, unequivocally and with particularity any party who will purchase
BNPLC's interest in the Property as provided in subparagraph 1(A). If for any
reason FCI fails to so specify a party who will in accordance with the terms and
conditions set forth herein purchase BNPLC's interest in the Property (be it FCI
itself, an Affiliate of FCI 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 FCI finally does so
specify a party, but such postponement will not relieve or postpone the
obligation of FCI to make a Supplemental Payment on the Designated Sale Date as
provided in Paragraph 1(A)(2)(c).
2. FCI'S RIGHTS AND OPTIONS AFTER THE DESIGNATED SALE DATE.
(A) FCI's Extended Right to Remarket. During the period
commencing on the Designated Sale Date and ending on the second anniversary of
the Designated Sale Date ("FCI'S EXTENDED REMARKETING PERIOD"), FCI shall have
the right ("FCI'S EXTENDED REMARKETING RIGHT") to cause an Applicable Purchaser
who is not an Affiliate of FCI to purchase BNPLC's interest in the Property for
a cash purchase price not below the lesser of (I) the Minimum Extended
Remarketing Price (as defined below), or (II) the Third Party Target Price (as
defined below) specified in any Third Party Sale Notice (as defined below) given
by BNPLC pursuant to subparagraph 2(C)(2) within the ninety days prior to the
date (the "FINAL SALE DATE") upon which BNPLC receives such purchase price from
the Applicable Purchaser. FCI's Extended Remarketing Right shall, however, be
subject to all of the following conditions:
(1) No Event of Default shall occur on or be continuing on
the Designated Sale Date.
(2) BNPLC's interest in the Property and in Escrowed
Proceeds, if any, shall not have been sold on the Designated Sale Date
as provided in Paragraph 1, and on the Designated Sale Date FCI shall
have paid the full amount of any Supplemental Payment to BNPLC required
by subparagraph 1(A)(2)(c). (If, however, as provided in subparagraph
4(B) FCI shall have properly exercised its right to terminate FCI's
Initial Remarketing Rights and Obligations and paid an Issue 97-10
Prepayment to BNPLC, then payment of the Supplemental Payment shall not
be a condition to FCI's Extended Remarketing Right.)
(3) No Voluntary Retention of the Property shall have
occurred as described in subparagraph 1(A)(2)(a).
(4) FCI's Extended Remarketing Right shall not have been
terminated by BNPLC pursuant to subparagraph 4(E) below.
(5) At least thirty days prior to the Final Sale Date, FCI
shall have notified BNPLC of (x) the date proposed by FCI 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 this subparagraph 2(A)) for BNPLC's
interest in the Property.
(B) Definition of Minimum Extended Remarketing Price. As used
herein, "MINIMUM EXTENDED REMARKETING PRICE" means an amount equal to the sum of
the following:
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(1) the amount by which the Stipulated Loss Value computed
on the Designated Sale Date exceeds any Supplemental Payment actually
paid to BNPLC on the Designated Sale Date, together with interest on
such excess computed at the Default Rate from the period commencing on
the Designated Sale Date and ending on the Final Sale Date, plus
(2) all costs and expenses (including withholding taxes
[if any] other than Excluded Taxes and Attorneys' Fees) incurred in
connection with the sale of BNPLC's interest in the Property to the
Applicable Purchaser, and plus
(3) the sum of all Impositions, insurance premiums and
other Losses of every kind suffered or incurred by BNPLC or any other
Interest Party with respect to the ownership, operation or maintenance
of the Property on or after the Designated Sale Date, together with
interest on such Impositions, insurance premiums and other Losses
computed at the Default Rate from the date the paid or incurred to the
Final Sale Date.
Notwithstanding the foregoing, in no event will the Minimum Extended Remarketing
Price be less than the fair market value of the Property if any Balance of
Unpaid Construction-Period Indemnity Payments remains after FCI shall have
properly exercised its right to terminate FCI's Initial Remarketing Rights and
Obligations and paid an Issue 97-10 Prepayment to BNPLC as provided in
subparagraph 4(B).
(C) BNPLC's Right to Sell. After the Designated Sale Date, if the
interest of BNPLC in the Property has not already been sold pursuant to
Paragraph 1 of this Agreement, BNPLC shall have the right to sell the Property
or offer the Property for sale 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 FCI's Extended Remarketing Rights specified in subparagraph 2(A)
continue to be satisfied:
(1) BNPLC shall not sell the Property to an Affiliate of
BNPLC on terms less favorable than those which BNPLC would require from
a prospective purchaser not an Affiliate of BNPLC;
(2) If BNPLC receives a written proposal (including any
"letter of intent" or other nonbinding expression of interest) outlining
the purchase price and general business terms upon which a prospective
purchaser is interested in a possible purchase of the Property, and if
on the basis of such proposal (the "THIRD PARTY SALE PROPOSAL") BNPLC
intends and desires to enter into further negotiations for a more
definitive purchase and sale agreement with the prospective purchaser,
then BNPLC shall, prior to entering into negotiations for a more
definitive purchase and sale agreement, submit the Third Party Sale
Proposal to FCI with a notice (the "THIRD PARTY SALE NOTICE") explaining
that (A) BNPLC is then prepared to accept a price not below an amount
specified in such Third Party Sale Notice (the "THIRD PARTY TARGET
PRICE") from the prospective purchaser if BNPLC and the prospective
purchaser reach agreement on other terms and conditions to be
incorporated into the more definitive purchase and sale agreement, and
(B) FCI's Extended Remarketing Right may be terminated pursuant to
subparagraph 4(E) of this Agreement unless FCI causes an Applicable
Purchaser to consummate a purchase of BNPLC's interest in the Property
pursuant to this Paragraph 2 within ninety days after the date of such
Third Party Sale Notice.
(D) FCI's Right to Excess Sales Proceeds. If the cash price
actually paid by any third party purchasing the Property from BNPLC prior to the
second anniversary of the Designated Sale Date, including any Applicable
Purchaser purchasing from BNPLC pursuant to this Paragraph 2, exceeds the
Minimum
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Remarketing Price, FCI shall be entitled to such excess: provided, however,
BNPLC shall be entitled to offset against such excess any and all sums that are
then due from FCI to BNPLC under the other Operative Documents; and, provided
further, that BNPLC may deduct and retain any Balance of Unpaid
Construction-Period Indemnity Payments from the excess unless FCI shall have
properly exercised its right to terminate FCI's Initial Remarketing Rights and
Obligations and paid an Issue 97-10 Prepayment to BNPLC as provided in
subparagraph 4(B).
3. TERMS OF CONVEYANCE UPON PURCHASE. Subject to any postponement
permitted by subparagraph 1(C), and provided BNPLC has not affirmatively elected
a Voluntary Retention of the Property as permitted by subparagraph 1(A)(2)(a),
promptly after the tender of the purchase price and any other payments to BNPLC
required by and pursuant to the Paragraph 1 or Paragraph 2, as applicable, BNPLC
must convey all of BNPLC's 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 FCI 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 under the Operative Documents 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 or alleged to have
occurred 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 California Tax Certificate 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 FCI 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, FCI
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 FCI
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 FCI.
4. SURVIVAL AND TERMINATION OF THE RIGHTS AND OBLIGATIONS OF FCI AND
BNPLC.
(A) Status of this Agreement Generally. Except as expressly
provided herein, this Agreement shall not terminate, nor shall FCI have any
right to terminate this Agreement, nor shall FCI be entitled to any reduction of
the Break Even Price, Deficiency, Maximum Remarketing Obligation or Supplemental
Payment hereunder, nor shall the obligations of FCI 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 by eminent domain or otherwise for any reason,
(iii) the prohibition, limitation or restriction of FCI'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 FCI or any party claiming under FCI by
paramount title or otherwise, (v) FCI'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
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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 FCI 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 FCI.
(B) Election by FCI to Terminate the Purchase Option and FCI's
Initial Remarketing Rights and Obligations Prior to the Base Rent Commencement
Date. At any time prior to the Base Rent Commencement Date, FCI may elect to
terminate both the Purchase Option and FCI's Initial Remarketing Rights and
Obligations, subject to the following conditions:
(1) To be effective, any such election to terminate must be made
after FCI shall have given Notice of FCI's Election to Terminate
pursuant to Paragraph 5(D) of the Construction Management Agreement, but
prior to the Base Rent Commencement Date.
(2) To be effective, any such election to terminate must be made
by giving BNPLC and the Participants a notice thereof in the form
attached as Exhibit K prior to the Base Rent Commencement Date.
(3) No termination pursuant to this subparagraph 4(B) shall be
effective, notwithstanding any notice FCI may have given as described in
the preceding clause (2), unless contemporaneously with the giving of
the notice (and in any event prior to the Base Rent Commencement Date)
FCI shall deliver to BNPLC an Issue 97-10 Prepayment.
(4) If for any reason whatsoever, including any bona fide dispute
over the amount of any required Issue 97-10 Prepayment, BNPLC does not
receive both the notice described in the preceding clause (2) and a full
Issue 97-10 Prepayment as described in the preceding clause (3) prior to
the Base Rent Commencement Date, then without any notice or other action
by the parties to this Agreement FCI shall cease to have any option to
terminate pursuant to this subparagraph 4(B).
(C) Election by BNPLC to Terminate the Purchase Option and FCI's
Initial Remarketing Rights and Obligations. BNPLC shall be entitled to terminate
both the Purchase Option and FCI's Initial Remarketing Rights and Obligations,
as BNPLC deems appropriate in its sole and absolute discretion, at any time
after receiving a notice given by FCI to make or attempt to make any Issue 97-10
Election. Upon any such termination by BNPLC, FCI shall be required to pay BNPLC
an Issue 97-10 Prepayment.
(D) Automatic Termination of Certain Rights of FCI. Without
limiting BNPLC's right to enforce FCI's obligation to make a Supplemental
Payment and other amounts required by this Purchase Agreement, FCI's Purchase
Option and all rights included in FCI's Initial Remarketing Rights and
Obligations hereunder (to be distinguished from FCI's Extended Remarketing
Right) shall terminate automatically if:
(1) BNPLC shall have elected to keep the Property in
accordance with subparagraph 1(A)(2)(a); or
(2) FCI shall have failed on the Designated Sale Date to
make or cause to be made all payments to BNPLC required by this
Agreement or by the other Operative Documents (including the payment on
the Designated Sale Date of the purchase price required from an
Applicable Purchaser if an Applicable Purchaser is to purchase from
BNPLC as provided in subparagraph 1(A)(2)(a)).
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Notwithstanding the foregoing, if BNPLC does not receive all payments due under
this Agreement or other Operative Documents on the Designated Sale Date, FCI may
nonetheless tender to BNPLC the full Break Even Price and all amounts then due
under the Operative Documents, together with interest on the total Break Even
Price computed at the Default Rate from the Designated Sale Date to the date of
tender, and if presented with such a tender within thirty days after the
Designated Sale Date, BNPLC must accept it and promptly thereafter deliver any
Escrowed Proceeds and the Sale Closing Documents listed in Paragraph 3 to FCI.
(E) Termination of FCI's Extended Remarketing Rights to Permit a
Sale by BNPLC. At any time more than ninety days after BNPLC has delivered a
Third Party Sale Notice to FCI as described in subparagraph 2(C)(2), BNPLC may
terminate FCI's Extended Remarketing Rights contemporaneously with the
consummation of a sale of the Property by BNPLC to any third party (be it the
prospective purchaser named in the Third Party Sale Notice or another third
party) at a price equal to or in excess of the Third Party Target Price
specified in the Third Party Sale Notice, so as to permit the sale of the
Property unencumbered by FCI's Extended Remarketing Rights.
(F) Payment Only to BNPLC. All amounts payable under this
Agreement by FCI and, if applicable, by an Applicable Purchaser must be paid
directly to BNPLC, and no payment to any other party shall be effective for the
purposes of this Agreement. In addition to the payments required under
subparagraph 1(A), on the Designated Sale Date FCI must pay all amounts then due
to BNPLC under the Lease. BNPLC will remit any excess amounts due FCI pursuant
to the last sentence of subparagraph 1(A)(2) or pursuant to subparagraph 2(D)
promptly after BNPLC's receipt of the same. To the extent, if any, that FCI
claims and is entitled to claim a reduction in the Break Even Price because of
any Deductible Judgment, as provided in the definition of Break Even Price
above, FCI must pay such Deductible Judgment for the account of BNPLC
contemporaneously with the payment of the other amounts required by subparagraph
1(A).
(G) Remedies Under the Other Operative Documents. No repossession
of or re-entering upon the Property or exercise of any other remedies available
to BNPLC under the Lease or other Operative Documents shall terminate FCI's
rights or obligations hereunder, all of which shall survive BNPLC's exercise of
remedies under the other Operative Documents. FCI acknowledges that the
consideration for this Agreement is separate and independent of the
consideration for the Lease, the Construction Management Agreement and the
Closing Certificate, and FCI's obligations hereunder shall not be affected or
impaired by any event or circumstance that would excuse FCI from performance of
its obligations under such other Operative Documents.
5. EFFECT OF SALE UPON INTERVENING ENCUMBRANCES. Any conveyance of the
Property to FCI 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 FCI to
BNPLC under the indemnities in the Lease or other Operative Documents 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 FCI hereby. Further, FCI 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 FCI nor any Applicable
Purchaser shall be responsible for the proper distribution or application of
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any such payments by BNPLC; and any such payment to BNPLC shall discharge the
obligation of FCI 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 FCI's rights under
this Agreement, including its rights under this subparagraph.
6. OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS OF FCI. FCI
represents, warrants and covenants as follows:
(A) No Default or Violation. The execution, delivery and
performance by FCI of this Agreement does not and will not constitute a breach
or default under any other material agreement or contract to which FCI is a
party or by which FCI is bound or which affects the Property, and does not
violate or contravene any law, order, decree, rule or regulation to which FCI is
subject, and such execution, delivery and performance by FCI 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, FCI'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 FCI's knowledge, threatened that
will adversely affect the Property or the validity, enforceability or priority
of this Agreement, and FCI 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
FCI 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 FCI's articles of incorporation or
bylaws. This Agreement is a valid, binding and legally enforceable obligation of
FCI, 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. FCI is duly incorporated and legally existing
under the laws of the State of Delaware and is duly qualified to do business in
the State of California. FCI 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.
(E) Omissions. None of FCI'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 FCI 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.
7. 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.
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8. 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.
9. 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 FCI with respect to the Property.
10. SUCCESSORS AND ASSIGNS. The terms, provisions, covenants and
conditions hereof shall be binding upon FCI and BNPLC and their respective
permitted successors and assigns and shall inure to the benefit of FCI and BNPLC
and all permitted transferees, mortgagees, successors and assignees of FCI and
BNPLC with respect to the Property; provided, that the rights of BNPLC hereunder
shall not pass to FCI or any Applicable Purchaser or any subsequent owner
claiming through FCI 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 other Operative Documents pursuant to a
Permitted Transfer, and if BNPLC's successor in interest assumes in writing for
the benefit of FCI liability for the obligations imposed upon BNPLC by this
Agreement and the other Operative Documents 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 other Operative Documents
after the date of such assumption, and FCI agrees to look solely to each
successor in interest of BNPLC for performance of such obligations.
11. 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:
(1) All payments required to be paid by FCI 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 (Force Computers Synthetic Lease)
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or at such other place and in such other manner as BNPLC may designate
in a notice to FCI. Time is of the essence as to all payments of FCI
under this Agreement.
(2) All payments required to be made by BNPLC to FCI pursuant to
the last sentence of subparagraph 1(A)(2) or pursuant to subparagraph
2(D) shall be paid to FCI in immediately available funds at the address
of FCI set forth below or as FCI may otherwise direct by notice sent in
accordance herewith.
(3) 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
00000 Xxxxx Xxxxx
Xxxxx 000
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 Xxxxx Xxxxxx
Telecopy: (000) 000-0000
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 FCI:
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Force Computers, 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 FCI hereunder, to the maximum extent possible, shall be deemed to
be separate, independent and in addition to, not in lieu of, the obligations of
FCI under the other Operative Documents. In the event of any inconsistency
between the terms of this Agreement and the terms and provisions of the other
Operative Documents, the terms and provisions of this Agreement shall control.
(C) No Implied Waiver. The failure of BNPLC or FCI 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 OTHER OPERATIVE DOCUMENTS SIGNED BY BNPLC,
AND NO RIGHTS, EASEMENTS OR LICENSES ARE ACQUIRED BY FCI BY IMPLICATION OR
OTHERWISE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND THE OTHER
OPERATIVE DOCUMENTS.
(E) Entire Agreement. This Agreement, the other Operative
Documents and the other documents dated as of July 16, 1998, which are being
executed by FCI and executed or accepted by BNPLC contemporaneously with the
execution of this Agreement supersede any prior negotiations and agreements
between BNPLC and FCI 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 FCI and BNPLC and all notices required of FCI and BNPLC under
this Agreement.
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(G) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California 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".
(1) 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 FCI. 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 FCI.
12. WAIVER OF JURY TRIAL. BNPLC AND FCI 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. FCI 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. FCI 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
13
17
AGREEMENT OR THE PROPERTY. In the event of litigation, this Agreement may be
filed as a written consent to a trial by the court.
13. 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 FCI 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 FCI,
voluntary or otherwise, of any right to receive the same; BNPLC shall not be
responsible for the proper distribution or application by FCI or any Applicable
Purchaser of any such Escrowed Proceeds paid over to FCI or the Applicable
Purchaser; and any such payment of Escrowed Proceeds to FCI or an Applicable
Purchaser shall discharge any obligation of BNPLC to deliver the same to all
Persons claiming an interest therein.
14. SECURITY FOR BNPLC'S OBLIGATIONS. To secure FCI's right to purchase
the Property pursuant to this Agreement and to recover any damages caused by a
breach of Paragraph 3 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 FCI 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. FCI may enforce
such lien and security interest judicially after any such breach by BNPLC, but
not otherwise. FCI 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, FCI 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 FCI shall be
entitled to record such memorandum at any time prior to the Designated Sale
Date.
15. INCOME TAX REPORTING. BNPLC and FCI 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:
(1) FOR PURPOSES OF DETERMINING THEIR RESPECTIVE FEDERAL, STATE
AND LOCAL INCOME TAX OBLIGATIONS, BNPLC and FCI believe and intend that
this Agreement and the Lease constitute a financing arrangement or
conditional sale. Both BNPLC and FCI 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
Service or another governmental authority with jurisdiction (a "TAX
CHALLENGE"). Consistent with the foregoing, BNPLC and FCI expect that
FCI (and not BNPLC) shall be treated as the true owner of the Property
for income tax purposes, thereby entitling FCI (and not BNPLC) to take
depreciation deductions and other tax benefits available to the owner.
FCI shall also report all interest earned on Escrowed Proceeds as FCI'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
FCI AS TO THE FORM OF THE TRANSACTIONS COVERED BY, OR THE PROPER
CHARACTERIZATION OF, THIS AGREEMENT AND THE LEASE.
(2) 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 FCI believe and intend that (i) the Lease constitutes a true
Lease, not a mere financing
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arrangement, enforceable in accordance with its express terms (and
neither this Paragraph 15 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, FCI
acknowledges that FCI 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, FCI 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, FCI 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 FCI 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 FCI 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, FCI 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.]
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IN WITNESS WHEREOF, FCI and BNPLC have caused this Purchase Agreement to
be executed as of July 16, 1998.
"FCI"
FORCE COMPUTERS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Printed Name: Xxxxxxx X. Xxxxxx
Title: Vice President & Chief
Financial Officer
20
[Continuation of signature pages to Purchase Agreement dated to be effective
July 16, 1998]
"BNPLC"
BNP LEASING CORPORATION
By: /s/ XXXXX X. XXX
-------------------------------------
Name: Xxxxx X. Xxx
Title: Vice President
21
EXHIBIT A
LEGAL DESCRIPTION
All of that certain real property situated in the City of San Xxxx, County of
Santa Xxxxx, State of California, described as follows:
Parcel 1 as shown on that Parcel Map filed for record in the office of the
Recorder of the County of Santa Xxxxx, State of California on July 1, 1998 in
Book 704 of Maps at Pages 11-12.
22
EXHIBIT B
CORPORATE GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
NAME: [FCI 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 [FCI or the Applicable
Purchaser] (hereinafter called "Grantee"), the receipt and sufficiency of which
are hereby acknowledged, does hereby GRANT 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").
23
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:
Attest: _________________________________
Its:
Exhibit B - Page 2
24
STATE OF ____________ )
) SS
COUNTY OF ___________ )
On ___________________ before me, ____________________, personally
appeared _______________________________ and _______________________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the persons whose names are subscribed to the within instrument and
acknowledged to me that they executed the same in their authorized capacities,
and that by their signatures on the instrument the person, or the entity upon
behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal.
Signature ___________________________
Exhibit B - Page 3
25
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 FCI 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 of that certain real property situated in the City of San Xxxx, County of
Santa Xxxxx, State of California, described as follows:
Parcel 1 as shown on that Parcel Map filed for record in the office of the
Recorder of the County of Santa Xxxxx, State of California on July 1, 1998 in
Book 704 of Maps at Pages 11-12.
Exhibit B - Page 4
26
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 FCI'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:
1. Amended and Restated Lease Agreement dated as of July 16, 1998, by and
between BNP Leasing Corporation, as lessor, and Force Computers, Inc.,
as lessee.
2. Liens securing TAXES AND ASSESSMENTS, not yet due and payable.
3. Easement -
In Favor Of: County of Santa Xxxxx
For: Ingress and egress
Recorded: June 28, 1968 in Book 8174, Page 148, Official Records
Affects: a portion of the Land as follows:
Beginning at the most Northerly corner of that certain 5.545 acre
parcel shown upon that certain Record of Survey recorded October
24, 1950 in Book 29 of Maps, at page 6, Santa Xxxxx County
Records; thence along the Northeasterly line of said 5.545 acre
parcel, said Northeasterly line being also the Southwesterly line
of that certain 0.441 acre parcel described as Parcel Two of
Exhibit A in the deed recorded in Book 6500, at pages 101, 102,
103, Official Records of Santa Xxxxx County S. 17(Degree) E.
26.44 feet to the true point of beginning and continuing along
said Northeasterly and Southwesterly line S. 17(Degree) E. 34.81
feet; thence leaving said Northeasterly and Southwesterly line N.
11(Degree) 31' 33" E. 48.16 feet to a point on the Northeasterly
line of said 0.441 acre parcel thence along last mentioned
Northeasterly line N. 17(Degree) W. 18.93 feet to the most
Northerly corner thereof, said Northerly corner also being the
most Northerly corner of that strip of land 23 feet wide, shown
parallel and adjacent to the aforementioned 5.545 acre parcel as
shown upon said Record of Survey; thence leaving last said
Northerly corner N. 73(Degree) 00' E. 10.29 feet; thence N.
11(Degree) 31' 33" E. 117.37 feet; thence along the arc of a
curve to the left the tangent of which bears S. 32(Degree) 47'
30" W. having a radius of 300.00 feet through an angel of
30(Degree) 24' 44" for an arc distance of 159.24 feet to the true
point of beginning.
4. Easement -
In Favor Of: City of San Xxxx, a municipal corporation
For: Public service facilities, slope purposes, sanitary sewer
purposes
Recorded: May 8, 1985 in Book J340, Page 1040, Official Records
Exhibit B - Page 5
27
Affects: Those street areas of Fontanoso Avenue, Fontanoso Way,
Xxxxxxx Avenue, Xxxxxxx Xxxx and Silver Creek Valley Road.
Reference to the records is hereby made for further particulars,
as to the description of the exact location.
5. Easement -
In Favor Of: Pacific Xxxx
For: Underground communication facilities and necessary
fixtures and appurtenances
Recorded: December 20, 1985 in Book J555, Page 160, Official Records
Affects: those portions shown as 1E on Exhibit "B" to deed
from B B & K, a general partnership, to the City of
San Xxxx, recorded May 8, 1985 in Book J340, Pages 1045
through 1062.
Exhibit B - Page 6
28
EXHIBIT C
See the form of Preliminary Change of Ownership Report attached to and made a
part of this Exhibit C.
29
THIS SPACE FOR RECORDER'S USE
PRELIMINARY CHANGE OF OWNERSHIP REPORT
THIS REPORT IS NOT A PUBLIC DOCUMENT
(To be completed by transferee (buyer) prior to transfer of the subject property
in accordance with Section 480.3 of the Revenue and Taxation Code.)
____________________________________________________________________________________________________________________________________
SELLER/TRANSFEROR: ____________________________________________________________________ FOR ASSESSOR'S USE ONLY
SELLER RECORDING DATE: _________________ DOCUMENT NO. _________________________________ Cluster ____________
OC1 ________________ OC2 ________________
BUYER/TRANSFEREE: DT _________________ INT ________________
RC _________________ SP$ ________________
ASSESSOR'S IDENTIFICATION NUMBER(S) ___________________________________________________ DTT $_______________ # Pcl. _____________
LA ___ Page Parcel
PROPERTY ADDRESS OR LOCATION: _________________________________________________________
No Street __________________________________________
_________________________________________________________
City State Zip Code
A Preliminary Change in Ownership Report
must be filed with each conveyance in the
MAIL TAX INFORMATION TO: County Recorder's office for the county
where the property is located; this
NAME: _________________________________________________________________________________ particular form may be used in all
58 counties of California.
ADDRESS: ______________________________________________________________________________
Street No City State Zip Code
___________________________________________________________________________________________________________________________________
NOTICE: A lien for property taxes applies to your property on March 1 of each year for the taxes owing in the following fiscal
year, July 1 through June 30. One-half of those taxes is due November 1 and one-half is due February 1. The first installment
becomes delinquent on December 10 and the second installment becomes delinquent on April 10. One tax xxxx is mailed before November
1 to the owner of record. IF THIS TRANSFER OCCURS AFTER MARCH 1 AND ON OR BEFORE DECEMBER 31, YOU MAY BE RESPONSIBLE FOR THE SECOND
INSTALLMENT OF TAXES ON FEBRUARY 1.
The property which you acquired may be subject to a supplemental tax assessment in an amount to be determined by the Santa Xxxxx
County Assessor. For further information on your supplemental roll obligation, please call the Santa Xxxxx County Assessor at
( ) - .
____________________________________________________________________________________________________________________________________
PART I: TRANSFER INFORMATION Please answer all questions.
YES NO
[ ] [ ] A. Is this transfer solely between husband and wife (Addition of a spouse, death of a spouse,
divorce settlement, etc.)?
[ ] [ ] B. Is this transaction only a correction of the name(s) of the person(s) holding title to the property (For example,
a name change upon marriage)?
[ ] [ ] C. Is this document recorded to create, terminate, or reconvey a lender's interest in the property?
[ ] [ ] D. Is this transaction recorded only to create, terminate, or reconvey a security interest (e.g., cosigner)?
[ ] [ ] E. Is this document recorded to substitute a trustee under a deed of trust, mortgage, or other similar document?
[ ] [ ] F. Did this transfer result in the creation of a joint tenancy in which the seller (transferor) remains as one of the
joint tenants?
[ ] [ ] G. Does this transfer return property to the person who created the joint tenancy (original transferor)?
[ ] [ ] H. Is this transfer of property:
1. to a trust for the benefit of the grantor, or grantor's spouse?
2. to a trust revocable by the transferor?
3. to a trust from which the property reverts to the grantor within 12 years?
[ ] [ ] I. If this property is subject to a lease, is the remaining lease term 35 years or more including written options?
[ ] [ ] J. Is this a transfer from parents to children or from children to parents?
[ ] [ ] K. Is this transaction to replace a principal residence by a person 55 years of age or older?
[ ] [ ] L. Is this transaction to replace a principal residence by a person who is severely disabled as defined by Revenue
and Taxation Code Section 69.5?
If you checked yes to J, K or L, an applicable claim form must be filed with the County Assessor.
Please provide any other information that would help the Assessor to understand the nature of the transfer.
____________________________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________________________
IF YOU HAVE ANSWERED "YES" TO ANY OF THE ABOVE QUESTIONS EXCEPT J, K, OR L, PLEASE SIGN AND DATE.
OTHERWISE COMPLETE BALANCE OF THE FORM.
____________________________________________________________________________________________________________________________________
PART II: OTHER TRANSFER INFORMATION
A. Date of transfer if other than recording date. ________________________________________________________________________________
B. Type of transfer. Please check appropriate box.
[ ] Purchase [ ] Foreclosure [ ] Gift [ ] Trade or Exchange [ ] Merger, Stock or Partnership Acquisition
[ ] Contract of Sale -- Date of Contract _________________________
[ ] Inheritance -- Date of Contract _______________________________ [ ] Other: Please explain: ___________________________
[ ] Creation of a lease: [ ] Assignment of a lease; [ ] Termination of a lease
Date lease began ______________________________________________
Original term in years (including written options) _________________________________
Remaining term in years (including written options) ________________________________
C. Was only a partial interest in the property transferred? [ ] Yes [ ] No
If yes, indicate the percentage transferred _________%
____________________________________________________________________________________________________________________________________
Please answer, to the best of your knowledge, all applicable questions, sign and date. If a question does not apply, indicate with
"N/A".
30
----------------------------------------------------------------------------------------------------------------------------------
PART III: PURCHASE PRICE & TERMS OF SALE
A. CASH DOWN PAYMENT OR Value of Trade or Exchange (excluding closing cost) AMOUNT $ ____________
B. FIRST DEED OF TRUST @ ______% interest for ______ years. Pymts./Mo. = $______ (Prin. & Int. only) AMOUNT $ ____________
[ ] FHA [ ] Fixed Rate [ ] New Loan
[ ] Conventional [ ] Variable Rate [ ] Assumed Existing Loan Balance
[ ] VA [ ] All inclusive D.T. ($______ Wrapped) [ ] Bank or Savings & Loan
[ ] Cal-Vet [ ] Loan Carried by Seller [ ] Finance Company
Balloon Payment [ ] Yes [ ] No Due Date _________ Amount $___________
C. SECOND DEED OF TRUST @ ______% interest for ______ years. Pymts./Mo. = $_____ (Prin. & Int. only) AMOUNT $ ____________
[ ] Bank or Savings & Loan [ ] Fixed Rate [ ] New Loan
[ ] Loan Carried by Seller [ ] Variable Rate [ ] Assumed Existing Loan Balance
Balloon Payment [ ] Yes [ ] No Due Date _________ Amount $___________
D. OTHER FINANCING: Is other financing involved not covered in (b) or (c) above? [ ] Yes [ ] No AMOUNT $ ____________
Type______________ @ ______% interest for ______ years. Pymts./Mo. = $_____ (Prin. & Int. only)
[ ] Bank or Savings & Loan [ ] Fixed Rate [ ] New Loan
[ ] Loan Carried by Seller [ ] Variable Rate [ ] Assumed Existing Loan Balance
Balloon Payment [ ] Yes [ ] No Due Date _________ Amount $___________
E. IMPROVEMENT BOND [ ] Yes [ ] No Outstanding Balance: AMOUNT $ ____________
F. TOTAL PURCHASE PRICE: (or acquisition price, if traded or exchanged, include
real estate commission if paid.)
Total items A through E $ __________________
G. PROPERTY PURCHASED: [ ] Through a broker; [ ] Direct form seller; [ ] Other (Explain) ____________
If purchased through a broker, provide broker's name and phone no.: _________________________________
Please explain any special terms or financing and many other information that would
help the Assessor understand the purchase price and terms of sale. __________________________________
----------------------------------------------------------------------------------------------------------------------------------
PART IV: PROPERTY INFORMATION
A. IS PERSONAL PROPERTY INCLUDED IN THE PURCHASE PRICE
(other than a mobilehome subject to local property tax)? [ ] Yes [ ] No
If yes, enter the value of the personal property included in the purchase price $______
(Attach itemized list of personal property)
B. IS THIS PROPERTY INTENDED AS YOUR PRINCIPAL RESIDENCE? [ ] Yes [ ] No
If yes, enter date of occupancy ________/________/, 19________ or intended occupancy ________/________/, 19________
Month Day Month Day
C. TYPE OF PROPERTY TRANSFERRED:
[ ] Single-Family residence [ ] Agricultural [ ] Timeshare
[ ] Multiple-Family residence (no. of units: ____) [ ] Coop/Own-your-own [ ] Mobilehome
[ ] Commercial/Industrial [ ] Condominium [ ] Unimproved lot
[ ] Other (Description: ____________________________________________________________________)
D. DOES THE PROPERTY PRODUCE INCOME? [ ] Yes [ ] No
E. IF THE ANSWER TO QUESTION D IS YES, IS THE INCOME FROM:
[ ] Lease/Rent [ ] Contract [ ] Mineral rights [ ] Other - explain ______________
F. WHAT WAS THE CONDITION OF THE PROPERTY AT THE TIME OF SALE?
[ ] Good [ ] Average [ ] Fair [ ] Poor
Enter here, or on an attached sheet, any other information that would assist the Assessor in determining
value of the property such as the physical condition of the property, restrictions, etc.
______________________________________________________________________________________________
______________________________________________________________________________________________
----------------------------------------------------------------------------------------------------------------------------------
I certify that the foregoing is true, correct and complete to the best of my knowledge and belief.
Signed _____________________________________________________ Date __________________________
(New Owner/Corporate Officer)
Please Print Name of New Owner/Corporate Officer ____________________________________________
Phone No. where you are available from 8:00 a.m. - 5:00 p.m. (______)________________________
(Note: The Assessor may contact you for further information)
----------------------------------------------------------------------------------------------------------------------------------
If a document evidencing a change of ownership is presented to the recorder for recordation without
the concurrent filing of a PRELIMINARY CHANGE OF OWNERSHIP REPORT, the recorder may charge an
additional recording fee of twenty dollars ($20).
31
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 Force Computers,
Inc., dated as of July 16, 1998 (the "PURCHASE AGREEMENT"); (2) that certain
Amended and Restated Lease Agreement between Assignor, as landlord, and Force
Computers, Inc., as tenant, dated as of July 16, 1998 (the "LEASE"); and (3)
that certain Amended and Restated Closing Certificate and Agreement by Force
Computers, Inc. in favor of Assignor, dated as of July 16, 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 Amended and Restated Purchase Agreement, Assignor
hereby sells, transfers and assigns unto [FCI 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
Documents (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
32
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:
[FCI OR THE APPLICABLE PURCHASER], a ________ corporation
By: _____________________________________________________
Its: ____________________________________________________
Exhibit D - Page 2
33
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
34
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 FCI REQUESTS BNPLC'S CONSENT OR
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 of that certain real property situated in the City of San Xxxx, County of
Santa Xxxxx, State of California, described as follows:
Parcel 1 as shown on that Parcel Map filed for record in the office of the
Recorder of the County of Santa Xxxxx, State of California on July 1, 1998 in
Book 704 of Maps at Pages 11-12.
Exhibit D - Page 4
35
EXHIBIT E
ACKNOWLEDGMENT OF DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
THIS ACKNOWLEDGMENT OF DISCLAIMER OF REPRESENTATIONS AND WARRANTIES (this
"Certificate") is made as of ___________________, ____, by [FCI 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 Force Computers, Inc. dated as
of July 16, 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 ________________, ____.
[FCI OR THE APPLICABLE PURCHASER]
By: _____________________________________
Name: _______________________________
Title: ______________________________
36
EXHIBIT F
INTENTIONALLY DELETED
37
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]
38
CORPORATE RESOLUTIONS OF
BNP LEASING CORPORATION
WHEREAS, pursuant to that certain Amended and Restated Purchase
Agreement (herein called the "Purchase Agreement") dated as of July 16, 1998, by
and between BNP Leasing Corporation (the "Corporation") and Force Computers,
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 __________, California more particularly described
therein.
NOW THEREFORE, BE IT RESOLVED, that the Board of Directors of the
Corporation, in its best business judgment, deems it in the best interest of the
Corporation and its shareholders that the Corporation convey the Property to
Purchaser or the Applicable Purchaser pursuant to and in accordance with the
terms of the Purchase Agreement.
RESOLVED FURTHER, that the proper officers of the Corporation, and each
of them, are hereby authorized and directed in the name and on behalf of the
Corporation to cause the Corporation to fulfill its obligations under the
Purchase Agreement.
RESOLVED FURTHER, that the proper officers of the Corporation, and each
of them, are hereby authorized and directed to take or cause to be taken any and
all actions and to prepare or cause to be prepared and to execute and deliver
any and all deeds and other documents, instruments and agreements that shall be
necessary, advisable or appropriate, in such officer's sole and absolute
discretion, to carry out the intent and to accomplish the purposes of the
foregoing resolutions.
Exhibit G - Page 2
39
EXHIBIT H
BNP LEASING CORPORATION
00000 XXXXX XXXXX
XXXXX 000
XXXXXX, XXXXX 00000
__________, ______
[Title Insurance Company]
_________________________
_________________________
_________________________
Re: Recording of (1) Deed and (2) Xxxx of Sale and Assignment of Lease
and Intangible Assets to [FCI 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,
40
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 [FCI 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: ____________________________________
41
EXHIBIT J
INDEMNITY FOR LIENS REMOVABLE BY BNPLC
THIS INDEMNITY AGREEMENT (this "AGREEMENT") is made as of
_________________, _____, by FORCE COMPUTERS, INC., a Delaware 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 16, 1998 by between Seller and Purchaser [or FCI] (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 CALIFORNIA 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
42
RELATIONSHIP THAT IS BEING ESTABLISHED. 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, 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
43
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"
FORCE COMPUTERS, INC., a Delaware corporation
By: ___________________________________________
Name: _____________________________________
Title: ____________________________________
"Title Company"
____________________________________________, a
__________________________
By: ___________________________________________
Name: _____________________________________
Title: ____________________________________
Exhibit J - Page 3
44
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 FCI 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 of that certain real property situated in the City of San Xxxx, County of
Santa Xxxxx, State of California, described as follows:
Parcel 1 as shown on that Parcel Map filed for record in the office of the
Recorder of the County of Santa Xxxxx, State of California on July 1, 1998 in
Book 704 of Maps at Pages 11-12.
Exhibit J - Page 4
45
ANNEX B
Relevant Encumbrances
[THIS ANNEX IS TO BE COMPLETED BY A LIST OF POSSIBLE LIENS REMOVABLE BY BNPLC
IDENTIFIED BY FCI AND AGAINST WHICH FCI HAS NOT BEEN ABLE TO OBTAIN TITLE
INSURANCE.]
Exhibit J - Page 5
46
Exhibit K
NOTICE OF ELECTION TO TERMINATE THE PURCHASE OPTION AND
FCI'S INITIAL REMARKETING RIGHTS AND OBLIGATIONS
BNP Leasing Corporation
00000 Xxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxx
Re: Amended and Restated Purchase Agreement dated as of July 16, 1998
(the "PURCHASE AGREEMENT"), between Force Computers, Inc. ("FCI") and BNP
Leasing Corporation ("BNPLC")
Gentlemen:
Capitalized terms used in this letter are intended to have the meanings
assigned to them in the Purchase Agreement referenced above. This letter shall
constitute a notice, given before the Base Rent Commencement Date pursuant to
subparagraph 4(B) of the Purchase Agreement, of FCI's election to terminate the
Purchase Option and FCI's Initial Remarketing Rights and Obligations. FCI
irrevocably elects to terminate the Purchase Option and FCI's Initial
Remarketing Rights and Obligations effective immediately, subject only to the
conditions described below.
FCI ACKNOWLEDGES THAT THE ELECTION MADE BY FCI DESCRIBED ABOVE
CONSTITUTES AN ISSUE 97-10 ELECTION UNDER AND AS DEFINED IN THE OPERATIVE
DOCUMENTS.
FCI also acknowledges that its right to terminate the Purchase Option
and FCI's Initial Remarketing Rights and Obligations is subject to the condition
precedent that FCI shall have delivered a Notice of FCI's Intent to Terminate,
as necessary to terminate the Construction Management Agreement pursuant to
Paragraph 5(D) thereof. Accordingly, if for any reason FCI has not already sent
a Notice of FCI's Intent to Terminate, the Purchase Option and FCI's Initial
Remarketing Rights and Obligations shall not terminate by reason of this notice.
FCI further acknowledges that no termination of the Purchase Option and
FCI's Initial Remarketing Rights and Obligations by FCI pursuant to this notice
shall be effective, unless contemporaneously with the giving of this notice FCI
shall deliver to BNPLC a full Issue 97-10 Prepayment. FCI hereby covenants to
pay, if FCI has not already done so, a full Issue 97-10 Prepayment to BNPLC.
Finally, FCI acknowledges that a termination of the Purchase Option and
FCI's Initial Remarketing Rights and Obligations pursuant to this notice shall
cause the Lease to terminate as of the Base Rent Commencement Date pursuant to
subparagraph 1(b) of the Lease.
47
Executed this _____ day of ______________, 19___.
FORCE COMPUTERS, INC.
Name: ___________________________________
Title: __________________________________
[cc all Participants]
Exhibit K - Page 2
