BETWEEN
(“NAI”)
(“BNPPLC”)
Page | ||||||
1 | Additional Definitions | 2 | ||||
“97-1Default (100%)” | 2 | |||||
“Adjusted Lease Balance” | 2 | |||||
“Applicable Purchaser” | 2 | |||||
“Balance of Unpaid Construction Period Losses” | 2 | |||||
“BNPPLC’s Actual Out of Pocket Costs” | 4 | |||||
“Break Even Price” | 4 | |||||
“Committed Price” | 4 | |||||
“Conditions to NAI’s Initial Remarketing Rights” | 4 | |||||
“Contingent Losses” | 4 | |||||
“Decision Not to Sell at a Loss” | 4 | |||||
“Deemed Sale” | 5 | |||||
“Extended Remarketing Period” | 5 | |||||
“Fair Market Value” | 5 | |||||
“Final Sale Date” | 5 | |||||
“Initial Remarketing Notice” | 5 | |||||
“Initial Remarketing Price” | 5 | |||||
“Lease Balance” | 6 | |||||
“Make Whole Amount” | 6 | |||||
“Maximum Remarketing Obligation” | 6 | |||||
“Must Sell Price” | 7 | |||||
“NAI’s Extended Remarketing Right” | 7 | |||||
“NAI’s Initial Remarketing Rights” | 7 | |||||
“NAI’s Target Price” | 7 | |||||
“Notice of Sale” | 7 | |||||
“Proposed Sale” | 7 | |||||
“Proposed Sale Date” | 7 | |||||
“Purchase Option” | 7 | |||||
“Put Option” | 7 | |||||
“Qualified Sale” | 7 | |||||
“Sale Closing Documents” | 8 | |||||
“Supplemental Payment” | 8 | |||||
“Supplemental Payment Obligation” | 9 | |||||
“Valuation Procedures” | 9 | |||||
2 | NAI’s Options and Obligationsonthe Designated Sale Date | 9 | ||||
(A) Purchase Option; Initial Remarketing Rights; Supplemental Payment Obligation | 9 | |||||
(B) Designation of the Purchaser | 11 | |||||
(C) Delivery of Property Related Documents If BNPPLC Retains the Property | 11 | |||||
(D) Effect of the Purchase Option and NAI’s Initial Remarketing Rights on Subsequent Title Encumbrances | 11 | |||||
(E) Security for NAI’s Purchase Option | 11 |
(Continued)
Page | ||||||
3 | NAI’s Rights, Options and ObligationsAfterthe Designated Sale Date | 12 | ||||
(A) NAI’s Right to Buy During the Thirty Days After the Designated Sale Date | 12 | |||||
(B) NAI’s Obligation to Buy if Certain Conditions are Satisfied | 12 | |||||
(C) NAI’s Extended Right to Remarket | 13 | |||||
(D) Deemed Sale On the Second Anniversary of the Designated Sale Date | 13 | |||||
(E) NAI’s Right to Share in Sales Proceeds Received By BNPPLC From any Qualified Sale | ||||||
4 | Transfers By BNPPLC After the Designated Sale Date | 14 | ||||
(A) BNPPLC’s Right to Sell | 15 | |||||
(B) Survival of NAI’s Rights and the Supplemental Payment Obligation | 15 | |||||
(C) Easements and Other Transfers in the Ordinary Course of Business | 15 | |||||
5 | Terms of Conveyance Upon Purchase | 15 | ||||
(A) Tender of Sale Closing Documents | 15 | |||||
(B) Delivery of Escrowed Proceeds | 16 | |||||
6 | Survival and Termination of the Rights and Obligations of NAI and BNPPLC | 16 | ||||
(A) Status of this Agreement Generally | 16 | |||||
(B) Election by NAI to Terminate the Supplemental Payment Obligation Prior to the Completion Date | 17 | |||||
(C)Automatic Termination of NAI’s Rights | 18 | |||||
(D)Payment Only to BNPPLC | 18 | |||||
(E)Preferences and Voidable Transfers | 18 | |||||
(F)Remedies Under the Other Operative Documents | 18 | |||||
7 | Certain Remedies Cumulative | 19 | ||||
8 | Attorneys’ Fees and Legal Expenses | 19 | ||||
9 | Successors and Assigns | 19 |
(ii)
(Continued)
Exhibit A | Legal Description | |||
Exhibit B | Valuation Procedures | |||
Exhibit C | Requirements Re: Forms to Accomplish Assignment and Conveyance | |||
Exhibit C-1 | Agreement Concerning Ground Lease | |||
Exhibit C-2 | Form of Assignment of Ground Lease and Improvements | |||
Exhibit C-3 | Form of Bill of Sale and Assignment | |||
Exhibit C-4 | Form of Acknowledgment of Disclaimer of Representations and Warranties | |||
Exhibit D | Secretary’s Certificate | |||
Exhibit E | FIRPTA Statement | |||
Exhibit F | Grant of Repurchase Option and Restrictive Covenants Agreement | |||
Exhibit G | Notice of Election to Terminate the Supplemental Payment Obligation |
(iii)
• | the Lease Balance,less | ||
• | Pre-lease Force Majeure Losses (if any). |
(1) | the total Losses (if any), including Contingent Losses, that have been incurred or suffered by BNPPLC or other Interested Parties at any time and from time to time prior to the Completion Date (or, if no Completion Date occurs prior to the Designated Sale Date, then prior to the Designated Sale Date) by reason of, in connection with or arising out of (A) their ownership or alleged ownership of any interest in the Property or the payments required by the Operative Documents, (B) |
the use or operation of the Property, (C) the negotiation, administration or enforcement of the Operative Documents, (D) the making of Funding Advances, (E) the Construction Project, (F) the breach by NAI of this Agreement or any other Operative Document or any other document executed by NAI in connection herewith, (G) any failure of the Property or NAI itself to comply with Applicable Laws, (H) Permitted Encumbrances, (I) Hazardous Substance Activities, including those occurring prior to Effective Date, (J) any obligations of BNPPLC under the Ground Lease or the Closing Certificate, or (K) any bodily or personal injury or death or property damage occurring in or upon or in the vicinity of the Property through any cause whatsoever;plus | |||
(2) | interest accruing at the Default Rate, compounded annually, on each payment of any such Losses by BNPPLC or any other Interested Party from the date such payment was made to the Designated Sale Date. |
Purchase Agreement - Page 3
• | the Lease Balance,plus | ||
• | BNPPLC’s Actual Out of Pocket Costs,andplus | ||
• | an amount equal to the Balance of Unpaid Construction Period Losses (if any). |
Purchase Agreement - Page 4
• | any date after the Designated Sale Date upon which BNPPLC conveys the Property to consummate a sale of the Property to NAI because of BNPPLC’s exercise of the Put Option as provided in subparagraph 3(B); or | ||
• | any date after the Designated Sale Date upon which BNPPLC conveys the Property to consummate a sale of the Property to NAI or to any Affiliate of NAI, including any such sale resulting from NAI’s exercise of its rights under subparagraph 3(A); or | ||
• | any date after the Designated Sale Date upon which BNPPLC conveys the Property to consummate a Qualified Sale, or would have done so but for a material breach of this Agreement by NAI (including any breach of its obligation to make any Supplemental Payment required in connection with such Qualified Sale); or | ||
• | the second anniversary of the Designated Sale Date, which will be the date of a Deemed Sale as provided in subparagraph 3(D) if no earlier date qualifies as the Final Sale Date and the entire Property is not sold by BNPPLC to NAI or an Applicable Purchaser prior to the second anniversary of the Designated Sale Date. |
Purchase Agreement - Page 5
• | 85% of the Adjusted Lease Balance;less | ||
• | any Fixed Rate Settlement Amount that NAI is required to pay pursuant to the Lease because of any acceleration of the Designated Sale Date which causes it to occur prior to the date upon which the Term of the Lease is scheduled to expire |
Purchase Agreement - Page 6
(as such date is specified in clause (1) of the definition of Designated Sale Date in the Common Definitions and Provisions Agreement). |
• | results from NAI’s exercise of NAI’s Extended Remarketing Right as described in subparagraph 3(C); or |
Purchase Agreement - Page 7
• | is approved in advance as a Qualified Sale by NAI; or | ||
• | is to a third party which is not an Affiliate of BNPPLC and, if it is completed by a conveyance from BNPPLC prior to eighteen months after the Designated Sale Date, is for a price not less than the least of the following amounts: |
(a) | the lowest price at which BNPPLC will be obligated, pursuant to clause (4) of subparagraph 3(E), to reimburse to NAI (i) the entire amount of any Supplemental Payment theretofore made by NAI to BNPPLC, or (ii) if no such Supplemental Payment has been made, but NAI has theretofore made one or more 97-1/Prepayments to BNPPLC, all such 97-10/Prepayments; or | ||
(b) | (i) if NAI notified BNPPLC of NAI’s Target Price prior to the date BNPPLC and the third party agreed to a price for the sale, NAI’s Target Price, or (ii) if NAI did not notify BNPPLC of NAI’s Target Price prior to the date BNPPLC and the third party agreed to a price for the sale, any price satisfactory to BNPPLC in its sole good faith business judgment; or | ||
(c) | 90% of the Fair Market Value of the Property. |
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BNP PARIBAS LEASING CORPORATION, a Delaware corporation | ||||
By: | ||||
Lloyd G. Cox, Managing Director | ||||
Purchase Agreement - Signature Page
NETWORK APPLIANCE, INC., a Delaware corporation | ||||
By: | ||||
Ingemar Lanevi, Vice President and Corporate | ||||
Treasurer | ||||
Purchase Agreement - Signature Page
Exhibit A to Purchase Agreement - Page 2
Exhibit A to Purchase Agreement - Page 3
Description of “Additional Leased Premises”
(1) | South 68° 46' 54 East 412.64 feet to a right-of-way monument; and | ||
(2) | with a curve to the right having a radius of 924.83 feet, an arc length of 475.96, and a chord bearing and distance of South 54° 02' 59" East 470.72 feet to a computed point; |
(1) | South 50° 41' 31" West 100.00 feet to an iron pipe found; and | ||
(2) | South 83° 31" 01" West 483.47 feet to an iron pipe found; |
(1) | North 12° 44' 00" West 279.97 feet; | ||
(2) | North 48° 55' 31" West 50.30 feet; and | ||
(3) | North 32° 57' 24" East 401.61 feet to a point along the southern margin of said Kit Creek Road; |
1 | But for the Ground Lease, the Improvements could not be used and maintained in place. Thus, the parties believe that, but for the Ground Lease, the Improvements would be worth much less. However, it is understood that Property does not include the fee estate in the Land, and the continued use of the Improvements will necessitate the payment of rents as required by the Ground Lease and compliance with the other terms and conditions thereof. Accordingly, the value of the Land itself will not be included in the Fair Market Value of the Property. | |
2 | If, however, the use of the Property by BNPPLC or any tenant under any Replacement Lease after NAI vacated the Property has resulted in excess wear and tear, such excess wear and tear will be assumed not to have occurred for purposes of determining Fair Market Value. |
Exhibit B to Purchase Agreement - Page 2
Exhibit B to Purchase Agreement - Page 3
Exhibit A to Purchase Agreement - Page 4
Exhibit A to Purchase Agreement - Page 5
WHEN RECORDED, RETURN TO:
7301 Kit Creek Road
Research Triangle Park, NC 27709
Attention: Ingemar Lanevi
A. | the Sublease; | ||
B. | the Purchase Agreement; | ||
C. | any pending or future award made because of our condemnation affecting the Property or because of any conveyance to be made in lieu thereof, and any unpaid proceeds of insurance or claim or cause of action for damages, loss or injury to the Subleased Premises; and | ||
D. | all other property included within the definition of “Property” as set forth in the Purchase Agreement; |
Exhibit C-1 to Purchase Agreement - Page 2
Exhibit C-1 to Purchase Agreement - Page 3
Exhibit C-1 to Purchase Agreement - Page 4
BNP PARIBAS LEASING CORPORATION, a Delaware corporation | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
STATE OF | ) | |||||
) | SS | |||||
COUNTY OF | ) |
Exhibit C-1 to Purchase Agreement - Page 5
NETWORK APPLIANCE, INC., a Delaware corporation | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
STATE OF | ) | |||||
) | SS | |||||
COUNTY OF | ) |
Description of “Additional Leased Premises"
(1) | South 68°46¢54² East 412.64 feet to a right-of-way monumen; and | ||
(2) | with a curve to the right having a radius of 924.83 feet, an arc length of 475.96. and a chord bearing and distance of South 54°02¢59² East 470.72 feet to a computed point; |
(1) | South 50°41¢31² West 100.00 feet to an iron pipe found; and | ||
(2) | South 83°31¢01² West 483.47 feet to an iron pipe found; |
(1) | North 12°44¢00² West 279.97 feet; | ||
(2) | North 48°55¢31² West 50.30 feet; and | ||
(3) | North 32°57¢24² East 401.61 feet to a point along the southern margin of said Kit Creek Road; |
2. | Amended Declaration of Covenants recorded in Book 1663, page 559, Wake County Registry and Amended Conditions, Covenants, Restrictions and Reservations recorded in Book 3679, page 53, Wake County Registry as further amended and modified by instrument recorded in Book 3679, page 41, Wake County Registry; instrument recorded in Book 3679, page 48, Wake County Registry; and instrument recorded in Book 3679, page 53, Wake County Registry. The aforesaid covenants were extended by Extension Agreement recorded in Book 6098, page 683, Wake County Registry. | |
3. | Easement(s) to Duke Power Company recorded in Book 1306, page 330; Book 1262, page 51; Book 1262, page 186; Book 1306, page 334; Book 1389, page 570; and Book 1389, page 568, Wake County Registry. | |
4. | Sanitary Sewer Easement recorded in Book 4783, page 360, Wake County Registry; and shown in Map Book 1990, pages 973-976, Wake County Registry. | |
5. | Easement to Duke Power Company as shown in Plat Book 1985, page 1208 and Plat Book 1985, 1347, Wake County Registry. |
6. | The following maters as shown on plat prepared by Barbara H. Mulkey Engineering, Inc., dated May 30, 2000 entitled “Exempt Subdivision Map of Site 12”, recorded in Book of Maps 2000, page 1300, Wake County Registry: |
(a) | New permanent drainage easement along the eastern right of way identified on such plat as “Future Roadway for Louis Stephens Drive”; | ||
(b) | Surface Cover Maintenance easement along the western boundary of Site 12 as shown on such plat; | ||
(c) | One hundred (100) year flood zone along the southern boundary of Site 12 as shown on such plat; | ||
(d) | Temporary drainage easement along norther boundary of Site 12 as shown on such plat; | ||
(e) | Existing sixty (60) foot right of way of Kit Creek Road, which right of way is to be abandoned (if it has not already been abandoned) as located in the northeastern portion of Site 12 as shown on such plat; | ||
(f) | Overhead electric lines located on the northeastern portion of Site 12 as shown on such plat; | ||
(g) | Flood plain area, wetlands and creek located within the Natural Area Preserve as shown on such plat; and | ||
(h) | Thirty (30) foot Wake County sanitary sewer easement within the Natural Areas Preserve as shown on such plat. |
7. | The terms and conditions of the Condominium Declaration. |
AND WHEN RECORDED MAIL TO:
NAME: | [NAI or the Applicable Purchaser] | |
ADDRESS: | ||
ATTN: | ||
CITY: | ||
STATE: | ||
Zip: |
(Covering Improvements and Leasehold Estate in Land)
BNP PARIBAS LEASING CORPORATION, a | ||||||||
Delaware corporation | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
STATE OF | ) | |||||
) | SS | |||||
COUNTY OF | ) |
Notary Public, State of |
Name:
Title:
STATE OF | ) | |||||
) | SS | |||||
COUNTY OF | ) |
Notary Public, State of |
Declaration as Unit 4 and is shown on the Condominium Map and site plan attached to
and made a part of this Exhibit.
Description of “Additional Leased Premises”
(1) | South 68o 46’ 54 East 412.64 feet to a right-of-way monument, and | ||
(2) | with a curve to the right having a radius of 924,83 feet, an arc length of 475,96. and a chord bearing and distance of South 54o 02’ 59” East 470.72 feet to a computed point; |
(1) | South 50o 41’ 31” West 100.00 feet to an iron pipe found; and | ||
(2) | South 83o 31’ 01” West 483,47 feet to an iron pipe found; |
(1) | North 12o 44’ 00” West 279.97 feet; | ||
(2) | North 48o 55’ 31” West 50.30 feet; and | ||
(3) | North 32o 57’ 24” East 401,61 feet to a point along the southern margin of said Kit Creek Road; |
1. | Taxes and assessments for the year 20 ___ and subsequent years, which are not yet due and payable. | |
2. | Amended Declaration of Covenants recorded in Book 1663, page 559, Wake County Registry and Amended Conditions, Covenants, Restrictions and Reservations recorded in Book 3679, page 53, Wake County Registry as further amended and modified by instrument recorded in Book 3679, page 41, Wake County Registry; instrument recorded in Book 3679, page 48, Wake County Registry; and instrument recorded in Book 3679, page 53, Wake County Registry. The aforesaid covenants were extended by Extension Agreement recorded in Book 6098, page 683, Wake County Registry. | |
3. | Easement(s) to Duke Power Company recorded in Book 1306, page 330; Book 1262, page 51; Book 1262, page 186; Book 1306, page 334; Book 1389, page 570; and Book 1389, page 568, Wake County Registry. | |
4. | Sanitary Sewer Easement recorded in Book 4783, page 360, Wake County Registry; and shown in Map Book 1990, pages 973-976, Wake County Registry. | |
5. | Easement to Duke Power Company as shown in Plat Book 1985, page 1208 and Plat Book 1985, 1347, Wake County Registry. |
6. | The following maters as shown on plat prepared by Barbara H. Mulkey Engineering, Inc., dated May 30, 2000 entitled “Exempt Subdivision Map of Site 12”, recorded in Book of Maps 2000, page 1300, Wake County Registry: |
(a) | New permanent drainage easement along the eastern right of way identified on such plat as “Future Roadway for Louis Stephens Drive”; | ||
(b) | Surface Cover Maintenance easement along the western boundary of Site 12 as shown on such plat; | ||
(c) | One hundred (100) year flood zone along the southern boundary of Site 12 as shown on such plat; | ||
(d) | Temporary drainage easement along norther boundary of Site 12 as shown on such plat; | ||
(e) | Existing sixty (60) foot right of way of Kit Creek Road, which right of way is to be abandoned (if it has not already been abandoned) as located in the northeastern portion of Site 12 as shown on such plat; | ||
(f) | Overhead electric lines located on the northeastern portion of Site 12 as shown on such plat; | ||
(g) | Flood plain area, wetlands and creek located within the Natural Area Preserve as shown on such plat; and | ||
(h) | Thirty (30) foot Wake County sanitary sewer easement within the Natural Areas Preserve as shown on such plat. |
7. | The terms and conditions of the Condominium Declaration. |
(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 personal or intangible 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 toParagraph 6 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; and (iii) any general intangibles, other permits, licenses, franchises, certificates, and other rights and privileges related to the Property that Assignee would have acquired if Assignee had itself acquired the interest of Assignor in and to the Property instead of Assignor. |
BNP PARIBAS LEASING CORPORATION, a | ||||||||
Delaware corporation | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
STATE OF | ) | |||||
) | SS | |||||
COUNTY OF | ) |
Notary Public, State of |
Name:
Title:
STATE OF | ) | |||||
) | SS | |||||
COUNTY OF | ) |
Notary Public, State of |
OF REPRESENTATIONS AND WARRANTIES
Name:
Title:
STATE OF | ) | |||||
) | SS | |||||
COUNTY OF | ) |
Notary Public, State of |
Name | Title | Signature | ||
BNP PARIBAS LEASING CORPORATION
12201 Merit Drive, Suite 860
Dallas, Texas 75251
Attention: Lloyd G. Cox, Managing Director
Telecopy: (972) 788-9140
Name: | ||||
Title: | ||||
And Restrictive Covenants
NETWORK APPLIANCE, INC., a Delaware corporation | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
STATE OF | § | |||||
§ | ||||||
COUNTY OF | § | |||||
Notary Public, State of | ||||
My Commission Expires: | ||
(Notary Seal) |
By: | ||||
Name: | ||||
Title: | ||||
Description of “Additional Leased Premises”
(1) | South 68°46' 54" East 412.64 feet to a right-of-way monument, and | ||
(2) | with a curve to the right having a radius of 924,83 feet, an arc length of 475,96. and a chord bearing and distance of South 54°02' 59" East 470.72 feet to a computed point; |
(1) | South 50°41' 31" West 100.00 feet to an iron pipe found; and | ||
(2) | South 83° 31' 01" West 483.47 feet to an iron pipe found; |
(1) | North 12°44' 00" West 279.97 feet; | ||
(2) | North 48° 55' 31" West 50.30 feet; and | ||
(3) | North 32° 57'24" East 401,61 feet to a point along the southern margin of said Kit Creek Road; thence with the southern margin of Kit Creek Road along a curve to the right having a radius of 925.04 feet, an arc length of 113,05 feet and a chord bearing and distance of South 42° 48' 33" East 112,98 feet to thePOINT AND PLACE OF BEFGINNING containing 5.36 acres (233.621 square feet), more or less, said area shown on the rendering attached hereto. |
and Irrevocable Release and Waiver of the Right to Purchase
12201 Merit Drive, Suite 860
Dallas, Texas 75251
Attention: Lloyd G. Cox, Managing Director
Telecopy: (972) 788-9140
NETWORK APPLIANCE, INC., a Delaware corporation | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||