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EXHIBIT 10.8
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$50,000,000
PURCHASE AGREEMENT
BETWEEN
BNP LEASING CORPORATION
("BNPLC")
AND
SOLECTRON GEORGIA CORPORATION
("SGC")
OCTOBER 20, 1998
(GWINNETT COUNTY, GEORGIA)
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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 SGC EXPECT THAT SGC (AND
NOT BNPLC) SHALL BE TREATED AS THE TRUE OWNER OF THE PROPERTY FOR INCOME TAX
PURPOSES, THEREBY ENTITLING SGC (AND NOT BNPLC) TO TAKE DEPRECIATION DEDUCTIONS
AND OTHER TAX BENEFITS AVAILABLE TO THE OWNER.
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TABLE OF CONTENTS
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1 SGC'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 SGC'S RIGHTS AND OPTIONS AFTER THE DESIGNATED SALE DATE..............................3
(A) SGC's Extended Right to Remarket..............................................3
(B) Definition of Minimum Extended Remarketing Price..............................4
(C) BNPLC's Right to Sell.........................................................5
(D) SGC's Right to Excess Sales Proceeds..........................................5
3 TERMS OF CONVEYANCE UPON PURCHASE....................................................6
4 SURVIVAL AND TERMINATION OF THE RIGHTS AND OBLIGATIONS OF SGC AND BNPLC..............6
(A) Status of this Agreement Generally............................................6
(B) Election by SGC to Terminate the Purchase Option and SGC's Initial Remarketing
Rights and Obligations Prior to the Base Rent Commencement Date...............7
(C) Election by BNPLC to Terminate the Purchase Option and SGC's Initial
Remarketing Rights and Obligations............................................7
(D) Automatic Termination of Certain Rights of SGC................................7
(E) Termination of SGC's Extended Remarketing Rights to Permit a Sale by BNPLC....8
(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 SGC...............................9
(A) No Default or Violation.......................................................9
(B) No Suits......................................................................9
(C) Enforceability................................................................9
(D) Organization..................................................................9
(E) Omissions.....................................................................9
7 CERTAIN REMEDIES CUMULATIVE..........................................................9
8. ATTORNEYS' FEES AND LEGAL EXPENSES..................................................10
9. ESTOPPEL CERTIFICATE................................................................10
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.......................................................13
(G) Governing Law................................................................13
(H) Paragraph Headings...........................................................13
(I) Other Terms and References...................................................13
(1) 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................................................................Limited Warranty Deed
Exhibit C................................................................Intentionally Deleted
Exhibit D..........................................................▇▇▇▇ 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 SGC of Election to Terminate
List of Defined Terms.......................................................Shared Definitions
(ii)
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PURCHASE AGREEMENT
This PURCHASE AGREEMENT (this "AGREEMENT"), by and between BNP LEASING
CORPORATION, a Delaware corporation ("BNPLC"), and SOLECTRON GEORGIA
CORPORATION, a Georgia corporation ("SGC"), is dated as of October 20, 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 Lease
Agreement dated of even date herewith between BNPLC, as landlord, and SGC, as
tenant. By this reference, such List of Defined Terms is incorporated into and
made a part of this Agreement for all purposes.)
RECITALS
Pursuant to the Existing Contract, which covers the Land described in
Exhibit A, BNPLC is acquiring the Land and any appurtenances thereto from Seller
contemporaneously with the execution of this Agreement. Pursuant to the Lease
and the Construction Management Agreement, BNPLC will lease the Land to SGC and
is agreeing to provide funding for the acquisition and construction of
Improvements to be owned by BNPLC. (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".)
SGC and BNPLC have reached agreement upon the terms and conditions upon
which SGC will purchase or arrange for the purchase of the Property, and by this
Agreement they desire to evidence such agreement
AGREEMENTS
1. SGC'S OPTIONS AND OBLIGATIONS ON THE DESIGNATED SALE DATE.
(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) SGC shall have the right (the "PURCHASE OPTION") to
purchase or cause an Affiliate of SGC 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 SGC 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 SGC 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 SGC's election not
to pay it as permitted by subparagraph 5(e)(ii) of the Lease.
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(2) If for any reason whatsoever (including any termination of
SGC's Purchase Option as described in subparagraph 4(D) below), neither SGC nor
an Affiliate of SGC 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 SGC shall have the following rights and obligations
(collectively, "SGC'S INITIAL REMARKETING RIGHTS AND OBLIGATIONS"):
(a) First, SGC shall have the right (but not the obligation)
to cause an Applicable Purchaser who is not an Affiliate of SGC 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 SGC in accordance with the
preceding sentence is below the amount equal to the Break Even Price
less any Supplemental Payment tendered by SGC 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, SGC 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 SGC to BNPLC under the other Operative Documents.
(c) Third, if for any reason whatsoever (including any
failure of SGC 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 SGC shall have the obligation to pay to BNPLC on the Designated
Sale Date a supplemental payment (the "SUPPLEMENTAL PAYMENT") equal to
the 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) SGC shall not have elected to accelerate the
Designated Sale Date as provided in clause (2) 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.
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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, SGC
shall pay interest on the past due amount computed at the Default Rate from the
Designated Sale Date. However, SGC shall be entitled to a credit against the
interest required by the preceding sentence equal to the Base Rent, if any,
actually paid by SGC 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), SGC must,
unless SGC 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 SGC 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 SGC does not concede that Fair
Market Value will be greater than the Break Even Price. No Remarketing Notice
will be required if SGC 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) SGC 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 (collectively, the "SALE CLOSING
DOCUMENTS"), SGC 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 SGC 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 SGC itself, an Affiliate of SGC 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 SGC finally does so specify a party, but such
postponement will not relieve or postpone the obligation of SGC to make a
Supplemental Payment on the Designated Sale Date as provided in Paragraph
1(A)(2)(c).
2. SGC'S RIGHTS AND OPTIONS AFTER THE DESIGNATED SALE DATE.
(A) SGC'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 ("SGC'S EXTENDED REMARKETING PERIOD"), SGC shall have
the right ("SGC'S EXTENDED REMARKETING RIGHT") to cause an Applicable Purchaser
who is not an Affiliate of SGC 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
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BNPLC receives such purchase price from the Applicable Purchaser. SGC's Extended
Remarketing Right shall, however, be subject to all of the following conditions:
(1) 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) 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 SGC 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) SGC shall have properly exercised its right to terminate SGC'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 SGC's Extended Remarketing Right.)
(3) No Voluntary Retention of the Property shall have
occurred as described in subparagraph 1(A)(2)(a).
(4) SGC'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, SGC
shall have notified BNPLC of (x) the date proposed by SGC 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.
(6) If any Balance of Unpaid Construction-Period Indemnity
Payments remains after SGC shall have properly exercised its right to
terminate SGC's Initial Remarketing Rights and Obligations and paid an
Issue 97-10 Prepayment to BNPLC as provided in subparagraph 4(B), then
BNPLC will not be required by this subparagraph 2(A) to sell to an
Applicable Purchaser at a price below the lesser of (A) the fair market
value of the Property, or (B) the minimum price which would allow BNPLC
to recover the Balance of Unpaid Construction-Period Indemnity Payments
upon the distribution of sales proceeds in accordance with subparagraph
2(D) below.
(B) Definition of Minimum Extended Remarketing Price. As used
herein, "MINIMUM EXTENDED REMARKETING PRICE" means an amount equal to the sum of
the following:
(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
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(3) the sum of all Impositions, insurance premiums and other
Losses of every kind suffered or incurred by BNPLC or any other 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.
(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 SGC'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 SGC 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) SGC's Extended Remarketing Right may be terminated pursuant to
subparagraph 4(E) of this Agreement unless SGC 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) SGC'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 Extended Remarketing Price, then such excess will be paid and applied as
follows:
(1) first, to pay to BNPLC any and all sums that are then due
and unpaid from SGC to BNPLC under the other Operative
Documents;
(2) second, to repay to SGC the aggregate amount of any and
all Issue 97-10 Prepayments made to BNPLC;
(3) third, to compensate BNPLC for any Balance of Unpaid
Construction-Period Indemnity Payments; and
(4) fourth, any balance of the excess remaining after payments
as described in clauses (1) through (3) preceding shall be
paid over to SGC.
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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 SGC 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 ▇▇▇▇ of Sale and Assignment of Lease and Intangible Assets in the form
attached as Exhibit D, (3) an Acknowledgment of Disclaimer of Representations
and Warranties in the form attached as Exhibit E, which SGC or the Applicable
Purchaser must execute and return to BNPLC, (4) a Secretary's Certificate in the
form attached as Exhibit G, (5) a letter to the title insurance company insuring
title to the Property in the form attached as Exhibit H, (6) a FIRPTA
certificate in the form attached hereto as Exhibit I, and (7) 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, SGC 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 SGC 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 ▇▇▇▇▇▇▇▇▇ ▇,
▇▇▇▇▇ may cure such refusal at any time before thirty days after receipt of a
demand for such cure from SGC.
4. SURVIVAL AND TERMINATION OF THE RIGHTS AND OBLIGATIONS OF SGC AND
BNPLC.
(A) Status of this Agreement Generally. Except as expressly
provided herein, this Agreement shall not terminate, nor shall SGC have any
right to terminate this Agreement, nor shall SGC be entitled to any reduction of
the Break Even Price, Deficiency, Maximum Remarketing Obligation or Supplemental
Payment hereunder, nor shall the obligations of SGC 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 SGC'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 SGC or any party claiming under SGC by
paramount title or otherwise, (v) SGC's prior acquisition or ownership of any
interest in the Property, (vi) any default on the part of BNPLC under this
Agreement, the Lease or any other agreement to which BNPLC is a party, or (vii)
any other cause, whether similar or dissimilar to the foregoing, any existing or
future law to the contrary notwithstanding. It is the intention of the parties
hereto that the obligations of SGC 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 SGC.
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(B) Election by SGC to Terminate the Purchase Option and SGC's
Initial Remarketing Rights and Obligations Prior to the Base Rent Commencement
Date. At any time prior to the Base Rent Commencement Date, SGC may elect to
terminate both the Purchase Option and SGC's Initial Remarketing Rights and
Obligations, subject to the following conditions:
(1) To be effective, any such election to terminate must be made
after SGC shall have given Notice of SGC's Election to Terminate
pursuant to Paragraph 5(D) of the Construction Management Agreement, or
after BNPLC shall have given any FOCB Notice as provided in Paragraph
5(E) of the Construction Management Agreement, and any such election to
terminate must be made 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 SGC 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)
SGC 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 SGC shall cease to have
any option to terminate pursuant to this subparagraph 4(B).
(C) Election by BNPLC to Terminate the Purchase Option and SGC's
Initial Remarketing Rights and Obligations. BNPLC shall be entitled to terminate
both the Purchase Option and SGC'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 SGC to make or attempt to make any Issue 97-10
Election. Upon any such termination by BNPLC, SGC shall be required to pay BNPLC
an Issue 97-10 Prepayment.
(D) Automatic Termination of Certain Rights of SGC. Without
limiting BNPLC's right to enforce SGC's obligation to make a Supplemental
Payment and other amounts required by this Purchase Agreement, SGC's Purchase
Option and all rights included in SGC's Initial Remarketing Rights and
Obligations hereunder (to be distinguished from SGC'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) SGC 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)).
Notwithstanding the foregoing, if BNPLC does not receive all payments due under
this Agreement or other Operative Documents on the Designated Sale Date, SGC may
nonetheless tender to BNPLC the full Break
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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 SGC.
(E) Termination of SGC'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 SGC as described in subparagraph 2(C)(2), BNPLC may
terminate SGC'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 SGC's Extended Remarketing Rights.
(F) Payment Only to BNPLC. All amounts payable under this
Agreement by SGC 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 SGC must pay all amounts then due
to BNPLC under the Lease. BNPLC will remit any excess amounts due SGC 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 SGC
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, SGC 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 SGC's
rights or obligations hereunder, all of which shall survive BNPLC's exercise of
remedies under the other Operative Documents. SGC 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 SGC's obligations hereunder shall not be affected or
impaired by any event or circumstance that would excuse SGC from performance of
its obligations under such other Operative Documents.
5. EFFECT OF SALE UPON INTERVENING ENCUMBRANCES. Any conveyance of
the Property to SGC 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 SGC 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 SGC hereby. Further, SGC 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 SGC nor any Applicable
Purchaser shall be responsible for the proper distribution or application of any
such payments by BNPLC; and any such payment to BNPLC shall discharge the
obligation of SGC to cause such payment to all Persons claiming an interest in
such payment. The parties shall record a
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memorandum of this Agreement for purposes of effecting constructive notice to
all Persons of SGC's rights under this Agreement, including its rights under
this subparagraph.
6. OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS OF SGC. SGC
represents, warrants and covenants as follows:
(A) No Default or Violation. The execution, delivery and
performance by SGC of this Agreement does not and will not constitute a breach
or default under any other material agreement or contract to which SGC is a
party or by which SGC is bound or which affects the Property, and does not
violate or contravene any law, order, decree, rule or regulation to which SGC is
subject, and such execution, delivery and performance by SGC 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, SGC'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 SGC's knowledge, threatened that
will adversely affect the Property or the validity, enforceability or priority
of this Agreement, and SGC 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
SGC 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 SGC's articles of incorporation or
bylaws. This Agreement is a valid, binding and legally enforceable obligation of
SGC, 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. SGC is duly incorporated and legally existing
under the laws of the State of Georgia. SGC 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 SGC'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 SGC 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 SGC with respect to the Property.
10. SUCCESSORS AND ASSIGNS. The terms, provisions, covenants and
conditions hereof shall be binding upon SGC and BNPLC and their respective
permitted successors and assigns and shall inure to the benefit of SGC and BNPLC
and all permitted transferees, mortgagees, successors and assignees of SGC and
BNPLC with respect to the Property; provided, that the rights of BNPLC hereunder
shall not pass to SGC or any Applicable Purchaser or any subsequent owner
claiming through SGC 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 SGC 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 SGC 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 SGC 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 ▇▇▇▇▇▇▇▇▇ Banque Nationale de Paris
/BNP/ BNP San Francisco
/AC/ 14334000176
/Ref/ Solectron (Georgia Synthetic Lease)
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or at such other place and in such other manner as BNPLC may designate in a
notice to SGC. Time is of the essence as to all payments of SGC under this
Agreement.
(2) All payments required to be made by BNPLC to SGC pursuant to the
last sentence of subparagraph 1(A)(2) or pursuant to subparagraph 2(D) shall be
paid to SGC in immediately available funds at the address of SGC set forth below
or as SGC 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
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Banque Nationale de Paris, San Francisco
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
And with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & Knight, P.C.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Address of SGC:
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Solectron Georgia Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ #▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Wilson, Sonsini, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Real Estate Department/DSS
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(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 SGC hereunder, to the maximum extent possible, shall be deemed to
be separate, independent and in addition to, not in lieu of, the obligations of
SGC 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 SGC 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 SGC 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 October 20, 1998, which are being
executed by SGC and executed or accepted by BNPLC contemporaneously with the
execution of this Agreement supersede any prior negotiations and agreements
between BNPLC and SGC 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.
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(F) Time is of the Essence. Time is of the essence as to all
obligations of SGC and BNPLC and all notices required of SGC and BNPLC under
this Agreement.
(G) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia 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 SGC. 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 SGC.
12. WAIVER OF JURY TRIAL. BNPLC AND SGC 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. SGC 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. SGC 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
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SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS AGREEMENT OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS
AGREEMENT OR THE PROPERTY. In the event of litigation, this Agreement may be
filed as a written consent to a trial by the court.
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 SGC 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 SGC,
voluntary or otherwise, of any right to receive the same; BNPLC shall not be
responsible for the proper distribution or application by SGC or any Applicable
Purchaser of any such Escrowed Proceeds paid over to SGC or the Applicable
Purchaser; and any such payment of Escrowed Proceeds to SGC 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 SGC'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
SGC 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. SGC
may enforce such lien and security interest judicially after any such breach by
BNPLC, but not otherwise. SGC 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, SGC 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 SGC shall be
entitled to record such memorandum at any time prior to the Designated Sale
Date.
15. INCOME TAX REPORTING. BNPLC and SGC 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 SGC believe and intend that
this Agreement and the Lease constitute a financing arrangement or
conditional sale. Both BNPLC and SGC 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 SGC expect that
SGC (and not BNPLC) shall be treated as the true owner of the Property
for income tax purposes, thereby entitling SGC (and not BNPLC) to take
depreciation deductions and other tax benefits available to the owner.
SGC shall also report all interest earned on Escrowed Proceeds as SGC'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
SGC AS TO THE FORM OF THE TRANSACTIONS COVERED BY, OR THE PROPER
CHARACTERIZATION OF, THIS AGREEMENT AND THE LEASE.
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(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 SGC believe and intend that (i) the Lease constitutes a true
Lease, not a mere financing arrangement, enforceable in accordance with
its express terms (and neither this Paragraph 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, SGC acknowledges that SGC
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, SGC 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, SGC
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 SGC 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 SGC 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, SGC 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, SGC and BNPLC have caused this Purchase Agreement to
be executed as of October 20, 1998.
"SGC"
SOLECTRON GEORGIA CORPORATION
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇, ▇▇.
-----------------------------------
▇. ▇. ▇▇▇▇▇▇▇, ▇▇., President
20
[Continuation of signature pages to Purchase Agreement dated to be effective
October 20, 1998]
"BNPLC"
BNP LEASING CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇, Vice President
21
EXHIBIT A
LEGAL DESCRIPTION
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lots 126, 153 and ▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, which is described as follows:
TO LOCATE THE POINT OF BEGINNING commence at a point formed by the intersection
of the northeastern margin of the right-of-way of Northridge Drive (having an
80-foot right-of-way) and the northwestern margin of the right-of-way of Old
Peachtree Road (having an 80-foot right of way), if both of said rights-of-way
are extended to form a point; thence North 56 degrees 23 minutes 46 seconds West
a distance of 11.43 feet to a point marked by a 1/2-inch rebar pin which is the
POINT OF BEGINNING and which is located on the northeastern margin of the
right-of-way of Northridge Drive; thence northwesterly along the northeastern
margin of the right-of-way of Northridge Drive the following five (5) courses
and distances, or curves, as hereinafter described: thence North 56 degrees 23
minutes 46 seconds West a distance of 216.60 feet to a point; thence
northwesterly along an arc of a curve to the right a distance of 278.76 feet to
a point (said arc being subtended by a chord having a chord bearing of North 44
degrees 21 minutes 15 seconds West, a chord distance of 276.71 feet and a radius
of 663.15 feet); thence North 32 degrees 19 minutes 42 seconds West a distance
of 225.20 feet to a point; thence northwesterly along an arc of a curve to the
left a distance of 312.95 feet to a point (said arc being subtended by a chord
having a chord bearing of North 45 degrees 15 minutes 26 seconds West, a chord
distance of 310.30 feet and a radius of 692.57 feet); thence North 58 degrees 12
minutes 08 seconds West a distance of 308.00 feet to a point marked by a
1/2-inch rebar pin; thence leaving the northeastern margin of the right-of-way
of Northridge Drive and continuing northwesterly, northerly and northeasterly
along an arc of a curve to the right a distance of 18.85 feet to a point marked
by a 1/2-inch rebar pin (said arc being subtended by a chord having a chord
bearing of North 13 degrees 12 minutes 08 seconds West, a chord distance of
16.97 feet and a radius of 12.00 feet) located on the southeasterly margin of
the right-of-way of Northbrook Parkway (having a 100-foot right-of-way); thence
easterly along the southeasterly margin of the right-of-way of Northbrook
Parkway the following four (4) courses and distances, or curves, as hereinafter
described: North 31 degrees 47 minutes 52 seconds East a distance of 164.90 feet
to point; thence northeasterly along an arc of a curve to the right a distance
of 462.34 feet to a point (said arc being subtended by a chord having a chord
bearing of North 46 degrees 47 minutes 52 seconds East, a chord distance of
457.08 feet and a radius of 883.01 feet); thence North 61 degrees 47 minutes 52
seconds East a distance of 277.91 feet to a point; thence northeasterly along an
arc of a curve to the left distance of 518.27 feet to a point marked by a
1/2-inch rebar pin (said arc being subtended by a chord having a chord bearing
of North 45 degrees 13 minutes 11 seconds East, a chord distance of 511.07 feet
and a radius of 895.59 feet); leaving said southerly margin of the right-of-way
of Northbrook Parkway, thence South 61 degrees 21 minutes 31 seconds East a
distance of 1,185.63 feet to a point marked by a 5/8-inch rebar pin which is
located on the western margin of the right-of-way of Old Peachtree Road; thence
South 03 degrees 13 minutes 18 seconds East along the western margin of the
right-of-way of Old Peachtree Road a distance of 199.76 feet to a point; thence
southerly and southwesterly along the western and northwestern margin of the
right-of-way of Old Peachtree Road and being an arc of a curve to the right a
distance of 536.80 feet to a point (said arc being subtended by a chord having a
chord bearing of South 26 degrees 52 minutes 52 seconds West, a chord distance
of 512.44 feet and a radius of 510.85 feet); thence South 56 degrees 59 minutes
02 seconds West along the northwestern margin of the right-of-way of Old
Peachtree Road a distance of 729.16 feet to a point; thence southwesterly along
the northwestern margin of the right-of-way of Old Peachtree Road along an arc
of a curve to the left a distance of 330.46 feet to a point marked by a 1/2 inch
rebar pin (said arc being subtended by a chord having a chord bearing of south
46 degrees 52 minutes 01 seconds West, a chord distance of 328.74 feet and a
radius of 935.72 feet); thence southwesterly, westerly and northwesterly along
an arc of a curve to the right a distance of 18.19 feet tot he POINT OF
BEGINNING (said arc being subtended by a chord having a chord bearing of South
80 degrees 10 minutes 35 seconds West, a chord distance of 16.50 feet and a
radius of 12.00 feet), said parcel containing an aggregate of 49.552 acres,
depicted as Tract 1 (12.208 acres);
22
Tract 2 (10.000 acres) and Tract 3 (27.334 acres), and being more particularly
shown and delineated on that certain survey entitled "As Built Survey for OKI
America, Inc.; Solectron Georgia Corporation; BNP Leasing Corporation and
Chicago Title Insurance Company:, prepared by Pinion & McGaughery Land
Surveyors, Inc, bearing the seal and certification of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Georgia
Registered Land Surveyor Number 1606, dated July 1, 1998 last revised October 7,
1998, which survey is incorporated herein by reference thereto.
Exhibit A - Page 2
23
EXHIBIT B
LIMITED WARRANTY DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
NAME: [SGC 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 [SGC or the Applicable
Purchaser] (hereinafter called "Grantee"), the receipt and sufficiency of which
are hereby acknowledged, does hereby GRANT, SELL, CONVEY, ASSIGN and DELIVER to
Grantee the real property described in Annex A attached hereto and hereby made a
part hereof, together with any buildings and other improvements situated
thereon, any fixtures and other property affixed thereto and all right, title
and interest of Grantor in and to adjacent streets, alleys and rights-of-way
(collectively, the "Property"); provided, however, this conveyance is made by
Grantor and accepted by Grantee subject to all zoning and other ordinances
affecting the Property, current year ad valorem taxes and any general or special
assessments due and payable after the date hereof, all encroachments, variations
in area or in measurements, boundary line disputes, roadways and other matters
not of record which would be disclosed by a current survey and inspection of the
Property, and the encumbrances listed in Annex B attached hereto and made a part
hereof (collectively, the "Permitted Encumbrances").
TO HAVE AND TO HOLD the Property, together with all and singular the
rights and appurtenances thereto in any wise belonging unto Grantee, its
successors and assigns, forever, and Grantor does hereby bind Grantor and
Grantor's successors to warrant and forever defend all and singular the said
premises unto Grantee, its successors and assigns against every person
whomsoever lawfully claiming, or to claim the same, or any part thereof by,
through or under Grantor, but not otherwise; subject, however, to the Permitted
Encumbrances. Except as expressly set forth in the preceding sentence, Grantor
makes no warranty of title, express or implied.
24
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:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
[SEAL]
Signed, sealed and delivered
this ____ day of _________, _____,
in the presence of:
-------------------------
Unofficial Witness
-------------------------
Notary Public
[Notary Seal]
Exhibit B - Page 2
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 SGC REQUESTS BNPLC'S CONSENT OR
APPROVAL AS PROVIDED IN THE LEASE, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW
CHANGE. ANY SUCH CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND
THIS "DRAFTING NOTE" WILL BE DELETED BEFORE THE DEED TO WHICH THIS DESCRIPTION
IS ATTACHED IS ACTUALLY EXECUTED AND DELIVERED.]
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lots 126, 153 and ▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, which is described as follows:
TO LOCATE THE POINT OF BEGINNING commence at a point formed by the intersection
of the northeastern margin of the right-of-way of Northridge Drive (having an
80-foot right-of-way) and the northwestern margin of the right-of-way of Old
Peachtree Road (having an 80-foot right of way), if both of said rights-of-way
are extended to form a point; thence North 56 degrees 23 minutes 46 seconds West
a distance of 11.43 feet to a point marked by a 1/2-inch rebar pin which is the
POINT OF BEGINNING and which is located on the northeastern margin of the
right-of-way of Northridge Drive; thence northwesterly along the northeastern
margin of the right-of-way of Northridge Drive the following five (5) courses
and distances, or curves, as hereinafter described: thence North 56 degrees 23
minutes 46 seconds West a distance of 216.60 feet to a point; thence
northwesterly along an arc of a curve to the right a distance of 278.76 feet to
a point (said arc being subtended by a chord having a chord bearing of North 44
degrees 21 minutes 15 seconds West, a chord distance of 276.71 feet and a radius
of 663.15 feet); thence North 32 degrees 19 minutes 42 seconds West a distance
of 225.20 feet to a point; thence northwesterly along an arc of a curve to the
left a distance of 312.95 feet to a point (said arc being subtended by a chord
having a chord bearing of North 45 degrees 15 minutes 26 seconds West, a chord
distance of 310.30 feet and a radius of 692.57 feet); thence North 58 degrees 12
minutes 08 seconds West a distance of 308.00 feet to a point marked by a
1/2-inch rebar pin; thence leaving the northeastern margin of the right-of-way
of Northridge Drive and continuing northwesterly, northerly and northeasterly
along an arc of a curve to the right a distance of 18.85 feet to a point marked
by a 1/2-inch rebar pin (said arc being subtended by a chord having a chord
bearing of North 13 degrees 12 minutes 08 seconds West, a chord distance of
16.97 feet and a radius of 12.00 feet) located on the southeasterly margin of
the right-of-way of Northbrook Parkway (having a 100-foot right-of-way); thence
easterly along the southeasterly margin of the right-of-way of Northbrook
Parkway the following four (4) courses and distances, or curves, as hereinafter
described: North 31 degrees 47 minutes 52 seconds East a distance of 164.90 feet
to point; thence northeasterly along an arc of a curve to the right a distance
of 462.34 feet to a point (said arc being subtended by a chord having a chord
bearing of North 46 degrees 47 minutes 52 seconds East, a chord distance of
457.08 feet and a radius of 883.01 feet); thence North 61 degrees 47 minutes 52
seconds East a distance of 277.91 feet to a point; thence northeasterly along an
arc of a curve to the left distance of 518.27 feet to a point marked by a
1/2-inch rebar pin (said arc being subtended by a chord having a chord bearing
of North 45 degrees 13 minutes 11 seconds East, a chord distance of 511.07 feet
and a radius of 895.59 feet); leaving said southerly margin of the right-of-way
of Northbrook Parkway, thence South 61 degrees 21 minutes 31 seconds East a
distance of 1,185.63 feet to a point marked by a 5/8-inch rebar pin which is
located on the western margin of the right-of-way of Old Peachtree Road; thence
South 03 degrees 13 minutes 18 seconds East along the western margin of the
right-of-way of Old Peachtree Road a distance of 199.76 feet to a point; thence
southerly and southwesterly along the western and northwestern margin of the
right-of-way of Old Peachtree Road and being an arc of a curve to the right a
distance of 536.80 feet to a point (said arc being subtended by a chord having a
chord bearing of South 26 degrees 52 minutes 52 seconds West, a chord distance
of 512.44 feet and a radius of 510.85 feet); thence South 56 degrees 59 minutes
02 seconds West along the northwestern margin of the right-of-way of Old
Peachtree Road
Exhibit B - Page 3
26
a distance of 729.16 feet to a point; thence southwesterly along the
northwestern margin of the right-of-way of Old Peachtree Road along an arc of a
curve to the left a distance of 330.46 feet to a point marked by a 1/2 inch
rebar pin (said arc being subtended by a chord having a chord bearing of south
46 degrees 52 minutes 01 seconds West, a chord distance of 328.74 feet and a
radius of 935.72 feet); thence southwesterly, westerly and northwesterly along
an arc of a curve to the right a distance of 18.19 feet tot he POINT OF
BEGINNING (said arc being subtended by a chord having a chord bearing of South
80 degrees 10 minutes 35 seconds West, a chord distance of 16.50 feet and a
radius of 12.00 feet), said parcel containing an aggregate of 49.552 acres,
depicted as Tract 1 (12.208 acres); Tract 2 (10.000 acres) and Tract 3 (27.334
acres), and being more particularly shown and delineated on that certain survey
entitled "As Built Survey for OKI America, Inc.; Solectron Georgia Corporation;
BNP Leasing Corporation and Chicago Title Insurance Company:, prepared by Pinion
& McGaughery Land Surveyors, Inc, bearing the seal and certification of ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Georgia Registered Land Surveyor Number 1606, dated July 1, 1998 last
revised October 7, 1998, which survey is incorporated herein by reference
thereto.
Exhibit B - Page 4
27
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 SGC'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. Lease Agreement dated as of October 20, 1998, by and between BNP Leasing
Corporation, as lessor, and Solectron Georgia Corporation, as lessee.
2. Declaration of Protective Covenants for Northbrook, Gwinnett County, Georgia
by Weeks NorthBrook MeadowBrook I Partnership, Ltd. and ▇▇▇▇▇ ▇▇▇▇, dated
March 11, 1986, filed for record March 14, 1986 at 3:54 p.m., recorded in
Deed Book 3426, Page ▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇; as assigned
by that certain Assignment of Declaration of Protective Covenants for
Northbrook from Weeks Northbrook Meadowbrook I Partnership, Ltd., a Georgia
limited partnership to Weeks Development Partnership, a Georgia general
partnership, dated August 24, 1994, filed for record September 1, 1994 at
3:31 p.m., recorded in Deed Book 10643, Page 286, aforesaid Record.
3. Those matters as disclosed by that certain survey entitled "As Built Survey
for OKI America, Inc.", prepared by Pinion & ▇▇▇▇▇▇▇▇▇ Land Surveyors, Inc.,
bearing the seal and certification of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Georgia Registered
Land Surveyor Number 1606, dated July 1, 1998, as follows:
(i) 15-foot building line along northeasterly line of subject property;
(ii) 100-foot building line located along a portion of Old Peachtree Road
near easterly corner of subject property;
(iii) 50-foot building lines along Northridge Drive, Northbrook Parkway and
a portion of Old Peachtree Road;
(iv) 75-foot natural buffer in east corner of subject property;
(v) 10-foot no access buffer in east corner of subject property;
(vi) 10-foot, 15-foot and 20-foot drainage easements with ▇▇-▇▇▇▇,
▇▇-▇▇▇▇, ▇▇-▇▇▇▇, ▇▇-▇▇▇▇ and 60-inch corrugated metal pipes, swales,
flared end sections, manholes, junction boxes and outlet control
structure in southerly, westerly and easterly portions of subject
property;
Exhibit B - Page 5
28
(vii) 20-foot sanitary sewer easements with manholes in southerly,
westerly and central portions of subject property;
(viii) branches in southwesterly portion of subject property;
(ix) two (2) detention ponds with earthen berm, 60-foot corrugated metal
pipe and headwall with 10-foot drainage easement surrounding said
ponds in westerly portion of subject property;
(x) water vaults in easterly and northerly portions of subject property;
(xi) liquid oxygen tank located in northerly portion of subject property;
(xii) ▇▇▇▇▇▇▇ Electric Membership Corporation cubicle located in easterly
corner portion of subject property;
(xiii) Southern ▇▇▇▇ cabinet located in easterly portion of subject
property;
(xiv) guy wire crossing easterly line of subject property;
(xv) ditch in westerly portion of subject property;
(xvi) lights and bollard lights throughout subject property;
(xvii) electric box in central portion of subject property;
(xviii) fire hydrants throughout subject property;
(xix) concrete flumes on northwestern side of building;
(xx) two (2) concrete pads with electrical equipment in easterly portion
of subject property;
(xxi) water meter on southern side of building; and
(xxii) concrete vault (electric) in central portion of subject property.
Exhibit B - Page 6
29
EXHIBIT C
INTENTIONALLY DELETED.
30
EXHIBIT D
▇▇▇▇ OF SALE AND ASSIGNMENT OF
LEASE AND INTANGIBLE ASSETS
Reference is made to: (1) that certain Purchase Agreement between BNP
Leasing Corporation ("ASSIGNOR") and Solectron Georgia Corporation, dated as of
October 20, 1998 (the "PURCHASE AGREEMENT"); (2) that certain Lease Agreement
between Assignor, as landlord, and Solectron Georgia Corporation, as tenant,
dated as of October 20, 1998 (the "LEASE"); and (3) that certain Closing
Certificate and Agreement by Solectron Georgia Corporation in favor of Assignor,
dated as of October 20, 1998 (the "CLOSING CERTIFICATE"). (Capitalized terms
used and not otherwise defined in this document are intended to have the
meanings assigned to them in the List of Defined Terms attached to and made a
part of the Lease.)
As contemplated by the Purchase Agreement, Assignor hereby sells, transfers
and assigns unto [SGC 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
31
on account of any Included Rights at any time before Assignor has received all
payments to which it is entitled because of Excluded Rights, such amount shall
be held in trust by Assignee for the benefit of Assignor, shall be segregated
from the other funds of Assignee and shall forthwith be paid over to Assignor to
be held by Assignor as collateral for, or then or at any time thereafter applied
in whole or in part by Assignor against, the payments due to Assignor because of
Excluded Rights, whether matured or unmatured, in such order as Assignor shall
elect.
Assignor does for itself and its successors covenant and agree to warrant
and defend the title to the property assigned herein against the just and lawful
claims and demands of any person claiming under or through a Lien Removable by
BNPLC, but not otherwise.
Assignee hereby assumes and agrees to keep, perform and fulfill Assignor's
obligations, if any, relating to any permits or contracts, under which Assignor
has rights being assigned herein.
IN WITNESS WHEREOF, the parties have executed this instrument as of
_______________, _____.
ASSIGNOR:
BNP LEASING CORPORATION a Delaware corporation
By:______________________________________________
Its:_____________________________________________
ASSIGNEE:
[SGC OR THE APPLICABLE PURCHASER], a ____________
corporation
By: _____________________________________________
Its:_____________________________________________
Exhibit D - Page 2
32
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
33
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 SGC REQUESTS BNPLC'S CONSENT OR
APPROVAL AS PROVIDED IN THE LEASE, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW
CHANGE. ANY SUCH CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND
THIS "DRAFTING NOTE" WILL BE DELETED BEFORE THE DOCUMENT TO WHICH THIS
DESCRIPTION IS ATTACHED IS ACTUALLY EXECUTED AND DELIVERED.]
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lots 126, 153 and ▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, which is described as follows:
TO LOCATE THE POINT OF BEGINNING commence at a point formed by the intersection
of the northeastern margin of the right-of-way of Northridge Drive (having an
80-foot right-of-way) and the northwestern margin of the right-of-way of Old
Peachtree Road (having an 80-foot right of way), if both of said rights-of-way
are extended to form a point; thence North 56 degrees 23 minutes 46 seconds West
a distance of 11.43 feet to a point marked by a 1/2-inch rebar pin which is the
POINT OF BEGINNING and which is located on the northeastern margin of the
right-of-way of Northridge Drive; thence northwesterly along the northeastern
margin of the right-of-way of Northridge Drive the following five (5) courses
and distances, or curves, as hereinafter described: thence North 56 degrees 23
minutes 46 seconds West a distance of 216.60 feet to a point; thence
northwesterly along an arc of a curve to the right a distance of 278.76 feet to
a point (said arc being subtended by a chord having a chord bearing of North 44
degrees 21 minutes 15 seconds West, a chord distance of 276.71 feet and a radius
of 663.15 feet); thence North 32 degrees 19 minutes 42 seconds West a distance
of 225.20 feet to a point; thence northwesterly along an arc of a curve to the
left a distance of 312.95 feet to a point (said arc being subtended by a chord
having a chord bearing of North 45 degrees 15 minutes 26 seconds West, a chord
distance of 310.30 feet and a radius of 692.57 feet); thence North 58 degrees 12
minutes 08 seconds West a distance of 308.00 feet to a point marked by a
1/2-inch rebar pin; thence leaving the northeastern margin of the right-of-way
of Northridge Drive and continuing northwesterly, northerly and northeasterly
along an arc of a curve to the right a distance of 18.85 feet to a point marked
by a 1/2-inch rebar pin (said arc being subtended by a chord having a chord
bearing of North 13 degrees 12 minutes 08 seconds West, a chord distance of
16.97 feet and a radius of 12.00 feet) located on the southeasterly margin of
the right-of-way of Northbrook Parkway (having a 100-foot right-of-way); thence
easterly along the southeasterly margin of the right-of-way of Northbrook
Parkway the following four (4) courses and distances, or curves, as hereinafter
described: North 31 degrees 47 minutes 52 seconds East a distance of 164.90 feet
to point; thence northeasterly along an arc of a curve to the right a distance
of 462.34 feet to a point (said arc being subtended by a chord having a chord
bearing of North 46 degrees 47 minutes 52 seconds East, a chord distance of
457.08 feet and a radius of 883.01 feet); thence North 61 degrees 47 minutes 52
seconds East a distance of 277.91 feet to a point; thence northeasterly along an
arc of a curve to the left distance of 518.27 feet to a point marked by a
1/2-inch rebar pin (said arc being subtended by a chord having a chord bearing
of North 45 degrees 13 minutes 11 seconds East, a chord distance of 511.07 feet
and a radius of 895.59 feet); leaving said southerly margin of the right-of-way
of Northbrook Parkway, thence South 61 degrees 21 minutes 31 seconds East a
distance of 1,185.63 feet to a point marked by a 5/8-inch rebar pin which is
located on the western margin of the right-of-way of Old Peachtree Road; thence
South 03 degrees 13 minutes 18 seconds East along the western margin of the
right-of-way of Old Peachtree Road a distance of 199.76 feet to a point; thence
southerly and southwesterly along the western and northwestern margin of the
right-of-way of Old Peachtree Road and being an arc of a curve to the right a
distance of 536.80 feet to a point (said arc being subtended by a chord having a
chord bearing of South 26 degrees 52 minutes 52 seconds West, a chord distance
of 512.44 feet and a radius of 510.85 feet); thence South 56 degrees 59 minutes
02 seconds West along the northwestern margin of the right-of-way of Old
Peachtree Road a distance of 729.16 feet to a point; thence southwesterly along
the northwestern
Exhibit D - Page 4
34
margin of the right-of-way of Old Peachtree Road along an arc of a curve to the
left a distance of 330.46 feet to a point marked by a 1/2 inch rebar pin (said
arc being subtended by a chord having a chord bearing of south 46 degrees 52
minutes 01 seconds West, a chord distance of 328.74 feet and a radius of 935.72
feet); thence southwesterly, westerly and northwesterly along an arc of a curve
to the right a distance of 18.19 feet tot he POINT OF BEGINNING (said arc being
subtended by a chord having a chord bearing of South 80 degrees 10 minutes 35
seconds West, a chord distance of 16.50 feet and a radius of 12.00 feet), said
parcel containing an aggregate of 49.552 acres, depicted as Tract 1 (12.208
acres); Tract 2 (10.000 acres) and Tract 3 (27.334 acres), and being more
particularly shown and delineated on that certain survey entitled "As Built
Survey for OKI America, Inc.; Solectron Georgia Corporation; BNP Leasing
Corporation and Chicago Title Insurance Company:, prepared by Pinion &
McGaughery Land Surveyors, Inc, bearing the seal and certification of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Georgia Registered Land Surveyor Number 1606, dated July 1, 1998 last
revised October 7, 1998, which survey is incorporated herein by reference
thereto.
Exhibit D - Page 5
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 [SGC 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 ▇▇▇▇ 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
Purchase Agreement between BNPLC and Solectron Georgia Corporation dated as of
October 20, 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 ________________, ____.
[SGC 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 Purchase Agreement (herein called the
"Purchase Agreement") dated as of October 20, 1998, by and between BNP Leasing
Corporation (the "Corporation") and Solectron Georgia Corporation ("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 __________,
Georgia 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
▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
___________________ , ________
[Title Insurance Company]
-----------------
-----------------
-----------------
Re: Recording of (1) Deed and (2) ▇▇▇▇ of Sale and Assignment of Lease
and Intangible Assets to [SGC OR THE APPLICABLE PURCHASER] ("Purchaser")
Ladies and Gentlemen:
BNP Leasing Corporation has executed and delivered to Purchaser (1) a
Deed and (2) ▇▇▇▇ 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 [SGC 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
▇▇-▇▇▇▇▇▇▇;
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 SOLECTRON GEORGIA CORPORATION, a Georgia
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 Purchase Agreement dated as of October 20, 1998 by
between Seller and Purchaser [or SGC] (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 GEORGIA 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"
SOLECTRON GEORGIA CORPORATION, a Georgia
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 SGC REQUESTS BNPLC'S CONSENT OR
APPROVAL AS PROVIDED IN THE LEASE, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW
CHANGE. ANY SUCH CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND
THIS "DRAFTING NOTE" WILL BE DELETED BEFORE THE DOCUMENT TO WHICH THIS
DESCRIPTION IS ATTACHED IS ACTUALLY EXECUTED AND DELIVERED.]
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lots 126, 153 and ▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, which is described as follows:
TO LOCATE THE POINT OF BEGINNING commence at a point formed by the intersection
of the northeastern margin of the right-of-way of Northridge Drive (having an
80-foot right-of-way) and the northwestern margin of the right-of-way of Old
Peachtree Road (having an 80-foot right of way), if both of said rights-of-way
are extended to form a point; thence North 56 degrees 23 minutes 46 seconds West
a distance of 11.43 feet to a point marked by a 1/2-inch rebar pin which is the
POINT OF BEGINNING and which is located on the northeastern margin of the
right-of-way of Northridge Drive; thence northwesterly along the northeastern
margin of the right-of-way of Northridge Drive the following five (5) courses
and distances, or curves, as hereinafter described: thence North 56 degrees 23
minutes 46 seconds West a distance of 216.60 feet to a point; thence
northwesterly along an arc of a curve to the right a distance of 278.76 feet to
a point (said arc being subtended by a chord having a chord bearing of North 44
degrees 21 minutes 15 seconds West, a chord distance of 276.71 feet and a radius
of 663.15 feet); thence North 32 degrees 19 minutes 42 seconds West a distance
of 225.20 feet to a point; thence northwesterly along an arc of a curve to the
left a distance of 312.95 feet to a point (said arc being subtended by a chord
having a chord bearing of North 45 degrees 15 minutes 26 seconds West, a chord
distance of 310.30 feet and a radius of 692.57 feet); thence North 58 degrees 12
minutes 08 seconds West a distance of 308.00 feet to a point marked by a
1/2-inch rebar pin; thence leaving the northeastern margin of the right-of-way
of Northridge Drive and continuing northwesterly, northerly and northeasterly
along an arc of a curve to the right a distance of 18.85 feet to a point marked
by a 1/2-inch rebar pin (said arc being subtended by a chord having a chord
bearing of North 13 degrees 12 minutes 08 seconds West, a chord distance of
16.97 feet and a radius of 12.00 feet) located on the southeasterly margin of
the right-of-way of Northbrook Parkway (having a 100-foot right-of-way); thence
easterly along the southeasterly margin of the right-of-way of Northbrook
Parkway the following four (4) courses and distances, or curves, as hereinafter
described: North 31 degrees 47 minutes 52 seconds East a distance of 164.90 feet
to point; thence northeasterly along an arc of a curve to the right a distance
of 462.34 feet to a point (said arc being subtended by a chord having a chord
bearing of North 46 degrees 47 minutes 52 seconds East, a chord distance of
457.08 feet and a radius of 883.01 feet); thence North 61 degrees 47 minutes 52
seconds East a distance of 277.91 feet to a point; thence northeasterly along an
arc of a curve to the left distance of 518.27 feet to a point marked by a
1/2-inch rebar pin (said arc being subtended by a chord having a chord bearing
of North 45 degrees 13 minutes 11 seconds East, a chord distance of 511.07 feet
and a radius of 895.59 feet); leaving said southerly margin of the right-of-way
of Northbrook Parkway, thence South 61 degrees 21 minutes 31 seconds East a
distance of 1,185.63 feet to a point marked by a 5/8-inch rebar pin which is
located on the western margin of the right-of-way of Old Peachtree Road; thence
South 03 degrees 13 minutes 18 seconds East along the western margin of the
right-of-way of Old Peachtree Road a distance of 199.76 feet to a point; thence
southerly and southwesterly along the western and northwestern margin of the
right-of-way of Old Peachtree Road and being an arc of a curve to the right a
distance of 536.80 feet to a point (said arc being subtended by a chord having a
chord bearing of South 26 degrees 52 minutes 52 seconds West, a chord distance
of 512.44 feet and a radius of
Exhibit J - Page 5
45
510.85 feet); thence South 56 degrees 59 minutes 02 seconds West along the
northwestern margin of the right-of-way of Old Peachtree Road a distance of
729.16 feet to a point; thence southwesterly along the northwestern margin of
the right-of-way of Old Peachtree Road along an arc of a curve to the left a
distance of 330.46 feet to a point marked by a 1/2 inch rebar pin (said arc
being subtended by a chord having a chord bearing of south 46 degrees 52 minutes
01 seconds West, a chord distance of 328.74 feet and a radius of 935.72 feet);
thence southwesterly, westerly and northwesterly along an arc of a curve to the
right a distance of 18.19 feet tot he POINT OF BEGINNING (said arc being
subtended by a chord having a chord bearing of South 80 degrees 10 minutes 35
seconds West, a chord distance of 16.50 feet and a radius of 12.00 feet), said
parcel containing an aggregate of 49.552 acres, depicted as Tract 1 (12.208
acres); Tract 2 (10.000 acres) and Tract 3 (27.334 acres), and being more
particularly shown and delineated on that certain survey entitled "As Built
Survey for OKI America, Inc.; Solectron Georgia Corporation; BNP Leasing
Corporation and Chicago Title Insurance Company:, prepared by Pinion &
McGaughery Land Surveyors, Inc, bearing the seal and certification of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Georgia Registered Land Surveyor Number 1606, dated July 1, 1998 last
revised October 7, 1998, which survey is incorporated herein by reference
thereto.
Exhibit J - Page 5
46
ANNEX B
Relevant Encumbrances
[THIS ANNEX IS TO BE COMPLETED BY A LIST OF POSSIBLE LIENS REMOVABLE BY BNPLC
IDENTIFIED BY SGC AND AGAINST WHICH SGC HAS NOT BEEN ABLE TO OBTAIN TITLE
INSURANCE.]
Exhibit J - Page 6
47
Exhibit K
NOTICE OF ELECTION TO TERMINATE THE PURCHASE OPTION AND
SGC'S INITIAL REMARKETING RIGHTS AND OBLIGATIONS
BNP Leasing Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇
Re: Purchase Agreement dated as of October 20, 1998 (the "PURCHASE
AGREEMENT"), between SOLECTRON GEORGIA CORPORATION ("SGC") 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 SGC's election to terminate the
Purchase Option and SGC's Initial Remarketing Rights and Obligations. SGC
irrevocably elects to terminate the Purchase Option and SGC's Initial
Remarketing Rights and Obligations effective immediately, subject only to the
conditions described below.
SGC ACKNOWLEDGES THAT THE ELECTION MADE BY SGC DESCRIBED ABOVE
CONSTITUTES AN ISSUE 97-10 ELECTION UNDER AND AS DEFINED IN THE OPERATIVE
DOCUMENTS.
SGC also acknowledges that its right to terminate the Purchase Option
and SGC's Initial Remarketing Rights and Obligations is subject to the condition
precedent that SGC shall have delivered a Notice of SGC's Intent to Terminate,
as necessary to terminate the Construction Management Agreement pursuant to
Paragraph 5(D) thereof, or BNPLC shall have delivered an FOCB Notice as provided
in Paragraph 5(E) of the Construction Management Agreement. Accordingly, if for
any reason SGC has not already sent a Notice of SGC's Intent to Terminate, and
BNPLC has not sent an FOCB Notice, the Purchase Option and SGC's Initial
Remarketing Rights and Obligations shall not terminate by reason of this notice.
SGC further acknowledges that no termination of the Purchase Option and
SGC's Initial Remarketing Rights and Obligations by SGC pursuant to this notice
shall be effective, unless contemporaneously with the giving of this notice SGC
shall deliver to BNPLC a full Issue 97-10 Prepayment. SGC hereby covenants to
pay, if SGC has not already done so, a full Issue 97-10 Prepayment to BNPLC.
Finally, SGC acknowledges that a termination of the Purchase Option and
SGC'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.
48
Executed this _____ day of ______________, 19___.
SOLECTRON GEORGIA CORPORATION
Name:__________________________________________________
Title:_________________________________________________
[cc all Participants]
Exhibit K - Page 2
