EXHIBIT 10.20
The transactions contemplated in this Purchase Agreement have been
made possible by the following banks, acting in the capacities
indicated:
Banque Nationale de Paris, ABN Amro Bank N.V.,
as Administrative/Documentation as Syndication Agent and
Agent and Arranger Co-Arranger
$86,000,000
PURCHASE AGREEMENT
BETWEEN
BNP LEASING CORPORATION,
AS SELLER
AND
3COM CORPORATION,
AS PURCHASER
EFFECTIVE AS OF JULY 29, 1997
(Marlborough Site)
This Purchase Agreement amends, restates and replaces the Purchase
Agreement between the Seller and Purchaser dated January 21, 1997,
covering the Land (as described in Exhibit A attached hereto).
PURCHASE AGREEMENT
This PURCHASE AGREEMENT (this "Agreement") is made as of
July 29, 1997, by 3COM CORPORATION, a Delaware corporation
("3COM") and BNP LEASING CORPORATION, a Delaware corporation
("BNPLC").
R E C I T A L S
---------------
A. BNPLC acquired the land described in Exhibit A
attached hereto and the improvements and fixtures located
thereon, if any, and has leased the same to 3COM pursuant to
that certain Lease Agreement (as from time to time
supplemented, amended or restated, the "Original Lease")
between 3COM Corporation, a California corporation, the
predecessor in interest to 3Com, and BNPLC dated as January
21, 1997.
B. By a Lease Agreement dated of even date herewith (as
from time to time supplemented, amended or restated, the
"Lease"), BNPLC and 3Com have amended, restated and replaced
the Original Lease. (The land described in Exhibit A and any
and all other real or personal property from time to time
covered by the Lease and included within the "Leased Property"
as defined therein are hereinafter collectively referred to as
the "Property".)
C. BNPLC is also concurrently herewith receiving a
separate environmental indemnity from 3COM pursuant to an
Environmental Indemnity Agreement (as from time to time
supplemented, amended or restated, the "Environmental
Indemnity") between 3COM and BNPLC dated as of the date
hereof.
D. 3COM has requested an option to purchase the
Property, which BNPLC is willing to provide on and subject to
the terms and conditions set out herein.
NOW, THEREFORE, in consideration of the above recitals
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties
agree as follows:
1. Definitions. As used herein, the terms "3COM",
"BNPLC", "Original Lease", "Lease", "Leased Property",
"Property", and "Environmental Indemnity" shall have the
meanings indicated above; terms with initial capitals defined
in the Lease and used but not defined herein shall have the
meanings assigned to them in the Lease; and the terms listed
immediately below shall have the following meanings:
"Applicable Purchaser" means any third party designated
by 3COM to purchase the interest of BNPLC in the Property as
provided in Paragraph 2(a)(ii) below.
"Deposit Taker" shall have the meaning assigned to it in
the Pledge Agreement.
"Deposit Taker Losses" shall have the meaning assigned to
it in the Pledge Agreement.
"Designated Sale Date" means the earlier of:
(1) the effective date of any termination of
the Lease by 3COM pursuant to Paragraph 2 thereof;
(2) any date designated by BNPLC in a written
notice given by BNPLC to 3COM when an Event of Default by
3COM is continuing, provided the notice of the date so
designated is given by BNPLC at least thirty (30) days
before the date so designated; or
(3) the first Business Day in August, 2002.
"Direct Payments to Participants" means the amounts paid
or required to be paid directly to Participants on the
Designated Sale Date as provided in Section 6.2 of the Pledge
Agreement at the direction of and for 3COM by the collateral
agent appointed pursuant to the Pledge Agreement from all or
any part of the Collateral described therein.
"Fair Market Value" means the fair market value of the
Property on or about the Designated Sale Date (calculated
under the assumptions, whether or not then accurate, that 3COM
has maintained the Property in compliance with all Applicable
Laws [including Environmental Laws]; that 3COM has completed
the construction of any Improvements which was commenced prior
to the Designated Sale Date; that all such Improvements are
self-sufficient in the sense that any easements or offsite
facilities needed for their use will be available at no
additional cost to the owner of the Improvements; that 3COM
has repaired and restored the Property after any damage
following fire or other casualty; that 3COM has restored the
remainder of the Property after any partial taking by eminent
domain; that 3COM has completed any contests of and paid any
taxes due [other than Excluded Taxes] or other amounts secured
by or allegedly secured by a lien against the Property other
than Prohibited Encumbrances; that no conditions or
circumstances on or about the Property [such as the presence
of an endangered species] is discovered that will impede the
use or any development of the Property permitted by the Lease;
that any use or development of the Property as permitted by
the Lease will not be hindered or delayed because of the
limited availability of utilities or water; that without undue
cost or delay any purchaser paying fair market value for the
Property can obtain any necessary permits or licenses needed
to use the Property for the purposes permitted by the Lease;
and that 3COM has cured any title defects affecting the
Property other than Prohibited Encumbrances, all in accordance
with the standards and requirements of the Lease as though the
Lease were continuing in force) as determined by an
independent MAI appraiser selected by BNPLC, which appraiser
must have five (5) years or more experience appraising similar
properties in Massachusetts.
"Qualified Deposit Taker" means one of the fifty largest
(measured by total assets) U.S. banks, or one of the one
hundred largest (measured by total assets) banks in the world,
with debt ratings of at least (i) A- (in the case of long term
debt) and A-1 (in the case of short term debt) or the
equivalent thereof by Standard and Poor's Corporation, and
(ii) A (in the case of long term debt) and P-1 (in the case of
short term debt) or the equivalent thereof by ▇▇▇▇▇'▇ Investor
Service, Inc. The parties believe it improbable that the
ratings systems used by Standard and Poor's Corporation and by
▇▇▇▇▇'▇ Investor Service, Inc. will be discontinued or
changed, but if such ratings systems are discontinued or
changed, 3COM shall be entitled to select and use a comparable
ratings systems as a substitute for the S&P Rating or the
▇▇▇▇▇ Rating, as the case may be, for purposes of determining
the status of any bank as a Qualified Deposit Taker.
"Purchase Price" means an amount equal to Stipulated Loss
Value outstanding on the Designated Sale Date, plus all costs
and expenses (including appraisal costs, withholding taxes (if
any) and reasonable Attorneys' Fees, as defined in the Lease)
incurred in connection with any sale of the Property by BNPLC
hereunder or in connection with collecting sales proceeds due
hereunder, less the aggregate amounts (if any) of Direct
Payments to Participants and Deposit Taker Losses.
"Prohibited Encumbrance" means any lien or other title
defect encumbering the Property that is claimed by BNPLC
itself or lawfully claimed by a third party through or under
BNPLC, including any judgment lien lawfully filed against
BNPLC and including any tax lien assessed because of BNPLC's
failure to pay Excluded Taxes, but excluding the Lease and any
lien or other title defect that (i) is a Permitted Encumbrance
(as defined in the Lease), regardless of whether claimed by,
through or under BNPLC, (ii) is claimed by, through or under
3COM or any of the Participants approved by 3COM (other than
Landlord's Parent), or (iii) exists because of any breach by
3COM of the Lease, because of anything done or not done by
BNPLC in an effort to satisfy subparagraph 9(b) of the Lease,
or because of anything done or not done by BNPLC at the
request of 3COM.
"Remarketing Notice" shall have the meaning assigned to
it in Paragraph 2(b)(1) below.
"Required Documents" means the quitclaim deed and other
documents that BNPLC must tender pursuant to Paragraph 3
below.
"Shortage Amount" means any amount payable to BNPLC by
3COM, rather than by the Applicable Purchaser, pursuant to
clause 2(a)(ii) below.
2. 3COM's Options and Obligations on the Designated
Sale Date.
(a) Choices. On the Designated Sale Date 3COM shall
have the right and the obligation to either:
(i) purchase BNPLC's interest in the Property
and in Escrowed Proceeds, if any, for a net cash
price equal to the Purchase Price; or
(ii) cause the Applicable Purchaser to purchase
BNPLC's interest in the Property and in Escrowed
Proceeds, if any, for a net cash price not less than
the lesser of (a) the Fair Market Value of the
Property, (b) fifteen percent (15%) of Stipulated
Loss Value outstanding immediately prior to the
purchase or (c) the Purchase Price. If, however,
the Fair Market Value is less than fifteen percent
(15%) of Stipulated Loss Value and less than the
Purchase Price, BNPLC may elect to keep the Property
and any Escrowed Proceeds rather than sell to the
Applicable Purchaser, in which case 3COM shall pay
BNPLC an amount equal to (A) eighty-five percent
(85%) of Stipulated Loss Value, less (B) the sum of
(x) any Escrowed Proceeds then held and to be
retained by BNPLC, (y) any Direct Payments to
Participants and (z) any Deposit Taker Losses.
Unless BNPLC elects to keep the Property pursuant to
the preceding sentence, 3COM must make a
supplemental payment to BNPLC on the Designated Sale
Date equal to the excess (if any) of the Purchase
Price over the net cash price actually paid to BNPLC
on the Designated Sale Date by the Applicable
Purchaser for BNPLC's interest in the Property and
in Escrowed Proceeds, if any. However, provided no
Event of Default has occurred and is continuing
under the Lease, and provided further that neither
3COM nor any Applicable Purchaser has failed to pay
any amount required to be paid by this Agreement on
the date such amount first became due, any
supplemental payment required by the preceding
sentence shall not exceed (1) eighty-five percent
(85%) of Stipulated Loss Value on the Designated
Sale Date, less (2) any Direct Payments to
Participants and any Deposit Taker Losses. Any
supplemental payment payable to BNPLC by 3COM,
rather than by the Applicable Purchaser, pursuant to
this clause (ii) is hereinafter referred to as the
"Shortage Amount." If the net cash price actually
paid by the Applicable Purchaser to BNPLC exceeds
the Purchase Price and all other sums that are then
due from 3COM to BNPLC, 3COM shall be entitled to
such excess.
If any amount payable to BNPLC pursuant to this subparagraph
2(a) is not actually paid to BNPLC on the Designated Sale
Date, 3COM shall pay interest on the past due amount computed
at the Default Rate from the Designated Sale Date. However,
3Com shall be entitled to a reduction of the interest required
by the preceding sentence equal to the Base Rent, if any, paid
by 3Com as provided in Paragraph 17 of the Lease for any
holdover period after the Designated Sale Date.
(b) Election by 3COM. 3COM shall have the right to
elect whether it will satisfy the obligations set out in
clause (i) or (ii) of the preceding Paragraph 2(a); provided,
however, that the following conditions are satisfied:
(1) To give BNPLC the opportunity to have the
Fair Market Value determined by an appraiser as provided
in the definition of Fair Market Value above before the
Designated Sale Date, 3COM must, unless 3COM concedes
that Fair Market Value will not be less than fifteen
percent (15%) of Stipulated Loss Value on the Designated
Sale Date, provide BNPLC with a Remarketing Notice.
"Remarketing Notice" means a notice given by 3COM to
BNPLC (and to each of the Participants) no earlier than
one hundred eighty (180) days before the Designated Sale
Date and no later than ninety (90) days before the
Designated Sale Date, specifying that 3COM does not
concede that the Fair Market Value is equal to or greater
than fifteen percent (15%) of the Stipulated Loss Value.
A Remarketing Notice will be required only if 3COM does
not concede that Fair Market Value will equal or exceed
fifteen percent (15%) of Stipulated Loss Value on the
Designated Sale Date. But if for any reason (including
but not limited to any acceleration of the Designated
Sale Date pursuant to clause (2) of the definition of
Designated Sale Date above) 3COM 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 this Agreement, be deemed to
be no less than fifteen percent (15%) of Stipulated Loss
Value on the Designated Sale Date.
(2) To give BNPLC the opportunity to prepare
the Required Documents before the Designated Sale Date,
3COM must, if it is to elect to satisfy the obligations
set forth in clause (ii) of Paragraph 2(a), irrevocably
specify an Applicable Purchaser in notice to BNPLC given
at least seven (7) days prior to the Designated Sale
Date. If for any reason 3COM fails to so specify an
Applicable Purchaser, 3COM shall be deemed to have
irrevocably elected to satisfy the obligations set forth
in clause (i) of Paragraph 2(a).
(c) Termination of 3COM's Option To Purchase. Without
limiting BNPLC's right to require 3COM to satisfy the
obligations imposed by Paragraph 2(a), 3COM shall have no
further option hereunder to purchase the Property if either:
(1) 3COM shall have elected to satisfy its
obligations under clause (ii) of Paragraph 2(a) on a
Designated Sale Date and BNPLC shall have elected to keep the
Property on such Designated Sale Date in accordance with
clause (ii) of Paragraph 2(a); or
(2) 3COM shall have failed on a Designated
Sale Date to make or cause to be made all payments to BNPLC
required by this Agreement or by the Lease and such failure
shall have continued beyond the thirty (30) day period for
tender specified in the next sentence.
If BNPLC does not receive all payments due under the Lease and
all payments required hereunder on a Designated Sale Date,
3COM may nonetheless tender to BNPLC the full Purchase Price
and all amounts then due under the Lease, together with
interest on the total Purchase 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 (30) days after
the applicable Designated Sale Date, BNPLC must accept it and
promptly thereafter deliver any Escrowed Proceeds and a deed
and all other Required Documents listed in Paragraph 3.
(d) Payment to BNPLC. All amounts payable under the
preceding Paragraphs 2(a) or 2(c) by 3COM and, if applicable,
by the Applicable Purchaser must be paid directly to BNPLC,
and no payment to any other party shall be effective for the
purposes of this Agreement. In addition to the payments
required under Paragraph 2(a) hereunder, on the Designated
Sale Date 3COM must pay all amounts then due to BNPLC under
the Lease. BNPLC will remit any excess amounts due 3COM
pursuant to the last sentence of clause (ii) of Paragraph 2(a)
promptly after BNPLC's receipt of the same and in no event
later than thirty (30) days thereafter.
(e) Effect of Options on Subsequent Title Encumbrances.
It is the intent of BNPLC and 3COM that any conveyance of the
Property to 3COM or any Applicable Purchaser pursuant to this
Agreement shall cut off and terminate any interest in the
Property claimed by, through or under BNPLC, including the
Participants (but not any unsatisfied obligations to BNPLC
under the Lease, the Environmental Indemnity or this
Agreement), including but not limited to any Prohibited
Encumbrances and any leasehold or other interests conveyed by
BNPLC in the ordinary course of BNPLC's business. 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 3COM
hereby. Further, 3COM 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 3COM nor any Applicable Purchaser shall
be responsible for the proper distribution or application of
any such payments by BNPLC.
3. Terms of Conveyance Upon Purchase. Immediately
after receipt of all payments to BNPLC required pursuant to
the preceding Paragraph 2, BNPLC must, unless it is to keep
the Property as permitted by Paragraph 2(a)(ii), deliver all
Escrowed Proceeds, if any, and convey all of its right, title
and interest in the Property by quitclaim deed to 3COM or the
Applicable Purchaser, as the case may be, subject only to the
Permitted Encumbrances (as defined in the Lease) and any other
encumbrances that do not constitute Prohibited Encumbrances.
However, such conveyance shall not include the right to
receive any payment under the Lease then due BNPLC or that may
become due thereafter because of any expense or liability
incurred by BNPLC resulting in whole or in part from events or
circumstances occurring before such conveyance. All costs of
such purchase and conveyance of every kind whatsoever, both
foreseen and unforeseen, shall be the responsibility of the
purchaser, and the form of quitclaim deed used to accomplish
such conveyance shall be substantially in the form attached as
Exhibit B. With such quitclaim deed, BNPLC shall also tender
to 3COM or the Applicable Purchaser, as the case may be, the
following, each fully executed and, where appropriate,
acknowledged on BNPLC's behalf by an officer of BNPLC: (1) a
▇▇▇▇ of Sale and Assignment of Contract Rights and Intangible
Assets in the form attached as Exhibit D, (2) an
Acknowledgment of Disclaimer of Representations and
Warranties, in the form attached as Exhibit E, which 3COM or
the Applicable Purchaser must execute and return to BNPLC, (3)
a Secretary's Certificate in the form attached as Exhibit G,
(4) a letter to the title insurance company insuring title to
the Property in the form attached as Exhibit H, and (5) a
certificate concerning tax withholding in the form attached as
Exhibit I.
4. Survival of 3COM's Obligations.
(a) Status of this Agreement. Except as expressly
provided in the last sentence of this subparagraph and
elsewhere herein, this Agreement shall not terminate, nor
shall 3COM have any right to terminate this Agreement, nor
shall 3COM be entitled to any reduction of the Purchase Price
hereunder, nor shall the obligations of 3COM to BNPLC under
Paragraph 2 be affected by reason of (i) any damage to or the
destruction of all or any part of the Property from whatever
cause, (ii) the taking of or damage to the Property or any
portion thereof under the power of eminent domain or otherwise
for any reason, (iii) the prohibition, limitation or
restriction of 3COM'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 3COM or any party
claiming under 3COM by paramount title or otherwise, (v)
3COM'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 3COM hereunder (including
3COM's obligation to make payments under - and, if applicable,
to cause the Applicable Purchaser to make payments under -
Paragraph 2) shall be separate and independent of the
covenants and agreements of BNPLC. Accordingly, the Purchase
Price and the Shortage Amount, as the case may be under
Paragraph 2, shall continue to be payable in all events, and
the obligations of 3COM hereunder shall continue unaffected by
any breach of this Agreement by BNPLC. However, nothing in
this subparagraph, nor the performance without objection by
3COM of its obligations hereunder, shall be construed as a
waiver by 3COM of any right 3COM may have at law or in equity,
following any failure by BNPLC to tender a quitclaim deed and
the other Required Documents as required by Paragraph 3 upon
the tender by 3COM and/or the Applicable Purchaser of the
payments required by Paragraph 2 and of the other documents to
be executed in favor of BNPLC at the closing of the sale
hereunder, to (i) recover monetary damages proximately caused
by such failure of BNPLC if BNPLC does not cure the failure
within thirty (30) days after 3COM demands a cure by written
notice to BNPLC, or (ii) a decree compelling performance of
BNPLC's obligation to so tender a quitclaim deed and the
Required Documents.
(b) Remedies Under the Lease and the Environmental
Indemnity. No repossession of or re-entering upon the
Property or exercise of any other remedies available under the
Lease or the Environmental Indemnity shall relieve 3COM of its
liabilities and obligations hereunder, all of which shall
survive the exercise of remedies under the Lease and
Environmental Indemnity. 3COM acknowledges that the
consideration for this Agreement is separate and independent
of the consideration for the Lease and the Environmental
Indemnity, and 3COM's obligations hereunder shall not be
affected or impaired by any event or circumstance that would
excuse 3COM from performance of its obligations under the
Lease or the Environmental Indemnity.
5. Remedies Cumulative. No right or remedy herein
conferred upon or reserved to BNPLC is intended to be
exclusive of any other right or remedy BNPLC has with respect
to the Property, and each and every right and remedy shall be
cumulative and in addition to any other right or remedy given
hereunder or now or hereafter existing at law or in equity or
by statute. In addition to other remedies available under
this Agreement, either party shall be entitled, to the extent
permitted by applicable law, to a decree compelling
performance of any of the other party's agreements hereunder.
6. No Implied Waiver. The failure of either party to
this Agreement to insist at any time upon the strict
performance of any covenant or agreement of the other party or
to exercise any remedy contained in this Agreement shall not
be construed as a waiver or a relinquishment thereof for the
future. The waiver by either party of or redress for any
violation of any term, covenant, agreement or condition
contained in this Agreement shall not prevent a subsequent
act, which would have originally constituted a violation, from
having all the force and effect of an original violation. No
express waiver by either party shall affect any condition
other than the one specified in such waiver and that one only
for the time and in the manner specifically stated. A receipt
by BNPLC of any payment hereunder with knowledge of the breach
of this Agreement shall not be deemed a waiver of such breach,
and no waiver by either party of any provision of this
Agreement shall be deemed to have been made unless expressed
in writing and signed by the waiving party.
7. 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.
8. Estoppel Certificate. 3COM and BNPLC will each,
upon not less than twenty (20) days' prior written request by
the other, 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 signer may have knowledge. Any such
statement may be relied upon by any Participant or prospective
purchaser or assignee of BNPLC with respect to the Property.
Neither 3COM nor BNPLC shall be required to provide such a
certificate more frequently than once in any six month period;
provided, however, that if either party determines that there
is a significant business reason for requiring a current
certificate, including, without limitation, the need to
provide such a certificate to a prospective purchaser or
assignee, the other shall provide a certificate upon request
whether or not it had provided a certificate within the prior
six month period.
9. Notices. Each provision of this Agreement referring
to the sending, mailing or delivery of any notice or referring
to the making of any payment to BNPLC, shall be deemed to be
complied with when and if the following steps are taken:
(a) All payments required to be made by 3COM or the
Applicable Purchaser to BNPLC hereunder shall be paid to BNPLC
in immediately available funds by wire transfer to:
Federal Reserve Bank of San Francisco
Account: Banque Nationale de Paris
ABA #: ▇▇▇▇▇▇▇▇▇
Reference: 3COM (Marlborough Site)
or at such other place and in such other manner as
BNPLC may designate in a notice to 3COM (provided BNPLC
will not unreasonably designate a method of payment other
than wire transfer). Time is of the essence as to all
payments to BNPLC under this Agreement. Any payments
required to be made by BNPLC to 3COM pursuant to the last
sentence of clause (ii) of Paragraph 2(a) shall be paid
to 3COM in immediately available funds at the address of
3COM set forth below or as 3COM may otherwise direct by
written notice sent in accordance herewith.
(b) All notices, demands and other communications
to be made hereunder to the parties hereto shall be in writing
(at the addresses set forth below) 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 telex, 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 3COM:
3Com Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Legal Dept. Mail Stop 1308
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
3Com Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Real Estate Dept. Mail Stop 1220
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇; and
3Com Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Treasury Dept. Mail Stop 1307
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇; and
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ & Freidenrich
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
10. Severability. Each and every covenant and agreement
of 3COM contained in this Agreement is, and shall be construed
to be, a separate and independent covenant and agreement. If
any term or provision of this Agreement or the application
thereof to any person or circumstances shall to any extent be
invalid and unenforceable, the remainder of this Agreement, or
the application of such term or provision to persons or
circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby. Further, the
obligations of 3COM hereunder, to the maximum extent possible,
shall be deemed to be separate, independent and in addition
to, not in lieu of, the obligations of 3COM under the Lease.
In the event of any inconsistency between the terms of this
Agreement and the terms and provisions of the Lease, the terms
and provisions of this Agreement shall control.
11. Entire Agreement. This Agreement and the documents
and agreements referred to herein set forth the entire
agreement between the parties concerning the subject matter
hereof and no amendment or modification of this Agreement
shall be binding or valid unless expressed in a writing
executed by both parties hereto.
12. 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.
13. Gender and Number. Within this Agreement, words of
any gender shall be held and construed to include any other
gender and words in the singular number shall be held and
construed to include the plural, unless the context otherwise
requires.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO
HAVE BEEN MADE UNDER AND SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF MASSACHUSETTS.
15. Successors and Assigns. The terms, provisions,
covenants and conditions hereof shall be binding upon 3COM and
BNPLC and their respective permitted successors and assigns
and shall inure to the benefit of 3COM and BNPLC and all
permitted transferees, mortgagees, successors and assignees of
3COM and BNPLC with respect to the Property; provided, that
the rights of BNPLC hereunder shall not pass to 3COM or any
Applicable Purchaser or any subsequent owner claiming through
them. Prior to the Designated Sale Date BNPLC may transfer,
assign and convey, in whole or in part, the Property and any
and all of its rights under this Agreement (subject to the
terms of this Agreement) by any conveyance that constitutes a
Permitted Transfer, but not otherwise. If BNPLC sells or
otherwise transfers the Property and assigns its rights under
this Agreement and the Lease pursuant to a Permitted Transfer,
then to the extent BNPLC's successor in interest confirms its
liability for the obligations imposed upon BNPLC by this
Agreement and the Lease on and subject to the express terms
set out herein and therein, BNPLC shall thereby be released
from any further obligations thereafter arising under this
Agreement and the Lease, and 3COM will look solely to each
successor in interest of BNPLC for performance of such
obligations.
16. WAIVER OF JURY TRIAL. BNPLC AND 3COM EACH HEREBY
WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THE LEASE, THIS
AGREEMENT OR ANY OTHER DOCUMENT OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION AND THE
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. 3COM
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. 3COM and BNPLC 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, THIS AGREEMENT OR THE ENVIRONMENTAL
INDEMNITY. In the event of litigation, this Agreement may be
filed as a written consent to a trial by the court.
17. Security for 3COM's Obligations. 3COM's
obligations under this Agreement are secured by the Pledge
Agreement, reference to which is hereby made for a description
of the Collateral covered thereby and the rights and remedies
provided to BNPLC thereby. Although the collateral agent
appointed for BNPLC as provided in the Pledge Agreement shall
be entitled to hold all Collateral as security for the full
and faithful performance by 3COM of 3COM's covenants and
obligations under this Agreement, the Collateral shall not be
considered an advance payment of the Purchase Price or any
Shortage Amount or a measure of BNPLC's damages should 3COM
breach this Agreement. If 3COM does breach this Agreement and
fails to cure the same within any time specified herein for
the cure, BNPLC may, from time to time, without prejudice to
any other remedy and without notice to 3COM, require the
collateral agent to immediately apply the proceeds of any
disposition of the Collateral (and any cash included in the
Collateral) to amounts then due hereunder from 3COM. If BNPLC
assigns its interest in the Property before the Designated
Sale Date, BNPLC may also assign BNPLC's interest in the
Collateral to the assignee.
18. Replacement of Participants Proposed by 3COM. So
long as no Event of Default has occurred and is continuing,
BNPLC shall not unreasonably withhold its approval for a
substitution under the Participation Agreement of a new
Participant proposed by 3COM for any Participant, the Deposit
Taker for whom has ceased to be a Qualified Deposit Taker;
provided, however, that (A) the proposed substitution can be
accomplished without a release or breach by BNPLC of its
rights and obligations under the Participation Agreement or
the "Underlying Documents" described therein (including this
Purchase Agreement); (B) the new Participant will agree (by
executing Supplements to the Participation Agreement and
Pledge Agreement as therein contemplated and by other
agreements as may be reasonably required by BNPLC and 3COM) to
become a party to the Participation Agreement and to the
Pledge Agreement, to designate a Qualified Deposit Taker as
the Deposit Taker for it under the Pledge Agreement and to
accept a Percentage under the Participation Agreement equal to
the Percentage of the Participant to be replaced; (C) the new
Participant (or 3COM) will provide the funds required to pay
the termination fee by Section 6.4 of the Participation
Agreement to accomplish the substitution; (D) 3COM (or the new
Participant) agrees in writing to indemnify and defend BNPLC
for any and all Losses incurred by BNPLC in connection with or
because of the substitution, including the cost of preparing
supplements to the Participation Agreement and the Pledge
Agreement and including any cost of defending and paying any
claim asserted by the Participant to be replaced because of
the substitution (but not including any liability of BNPLC to
such Participant for damages caused by BNPLC's bad faith or
gross negligence in the performance of BNPLC's obligations
under the Participation Agreement prior to the substitution);
and (E) the new Participant shall be a reputable financial
institution having a net worth of no less than seven and one
half percent (7.5%) of total assets and total assets of no
less than $10,000,000,000.00 (all according to then recent
audited financial statements). BNPLC shall attempt in good
faith to assist (and cause its Affiliate, Banque Nationale de
Paris, to attempt in good faith to assist) 3COM in identifying
a new Participant that 3COM may propose to substitute for an
existing Participant pursuant to this Paragraph, as 3COM may
reasonably request from time to time. However, in no event
shall BNPLC itself, or any of its Affiliates, be required to
take the Percentage of any Participant to be replaced.
19. Security for BNPLC's Obligations. To secure 3COM's
right 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 3COM a lien and security interest against
all rights, title and interests of BNPLC from time to time in
and to the Property. 3COM may enforce such lien and security
interest judicially after any such breach by BNPLC, but not
otherwise. Contemporaneously with the execution of this
Agreement, 3COM 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 3COM shall
be entitled to record such memorandum at any time prior to the
Designated Sale Date.
20. Not a Partnership, Etc. NOTHING IN THIS PURCHASE
AGREEMENT IS INTENDED TO BE OR TO CREATE ANY PARTNERSHIP,
JOINT VENTURE, OR OTHER JOINT ENTERPRISE BETWEEN BNPLC AND
3COM. NEITHER THE EXECUTION OF THIS PURCHASE AGREEMENT NOR
THE ADMINISTRATION OF THIS PURCHASE AGREEMENT OR OTHER
DOCUMENTS REFERENCED HEREIN BY BNPLC, NOR ANY OTHER RIGHT,
DUTY OR OBLIGATION OF BNPLC UNDER OR PURSUANT TO THIS PURCHASE
AGREEMENT OR SUCH DOCUMENTS IS INTENDED TO BE OR TO CREATE ANY
FIDUCIARY OBLIGATIONS OF BNPLC TO 3COM.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT
BLANK]
IN WITNESS WHEREOF, the parties have executed this
Purchase Agreement as of July 29, 1997.
"BNPLC"
BNP LEASING CORPORATION, a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
----------------------------
▇▇▇▇▇ ▇. ▇▇▇, Vice President
[Continuation of signature pages to Purchase Agreement dated
to be effective July 29, 1997]
"3COM"
3COM CORPORATION, a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:SVP, Gen Counsel & Secretary
Exhibit A
Legal Description
The land with the buildings thereon situated on Forest Street
in Marlborough, Middlesex County, Massachusetts and being
shown as Lots 1 and 2 on a plan of land entitled "Plan of Land
in Marlborough, Mass." drawn by Guerriere & ▇▇▇▇▇▇, Inc.
Engineering and Land Surveying, owned by Metropolitan Life
Insurance Company, Sale 200 feet to an inch, dated August 17,
1989 and recorded in Middlesex County Registry of Deeds in
Book 25878, Page 342, to which plan reference is made for a
more particular description of Lots 1 and 2.
Exhibit B
QUITCLAIM DEED
THE STATE OF MASSACHUSETTS )
) KNOW ALL MEN BY THESE PRESENTS
THAT:
COUNTY OF ______________ )
BNP LEASING CORPORATION, a Delaware corporation
("Grantor"), for and in consideration of the sum of [INSERT
AMOUNT] paid to Grantor by [3COM OR THE APPLICABLE PURCHASER,
AS THE CASE MAY BE] ("Grantee"), the receipt and sufficiency
of which are hereby acknowledged, does hereby GRANT, SELL,
CONVEY, ASSIGN and DELIVER to Grantee, with quitclaim
covenants, the real property described in Exhibit A attached
hereto and made a part hereof (the "Property"), 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; provided, however, this conveyance
is made by Grantor and accepted by Grantee subject to the
following, as well as the Permitted Encumbrances described on
Annex B (collectively, the "Permitted Encumbrances"):
1. Real Estate Taxes not yet due and payable;
2. General or Special Assessments due and
payable after the date hereof; and
3. Encroachments, variations in area or in
measurements, boundary line disputes, roadways and
other matters not of record which would be disclosed
by a survey and inspection of the property conveyed
hereby.
IN WITNESS WHEREOF, this Deed is executed by Grantor on
this ________ day of __________, 199__.
BNP LEASING CORPORATION
a Delaware corporation
By:______________________________
Its:_____________________________
THE STATE OF )
)
COUNTY OF )
In witness whereof, the said BNP Leasing Corporation, a
Delaware corporation, has caused its corporate seal to be
hereto affixed and these presents to be signed, acknowledged,
and delivered in its name and behalf by
______________________, its ___________________ hereto duly
authorized this ___ day of ____________, 199__.
Signed and sealed in the presence of
__________________________________
__________________________________
__________________________________
__________________________________
The Commonwealth of Massachusetts
ss. 19__
Then personally appeared the above named ________________
and acknowledged the foregoing instrument to be the free act and deed
of the ____________________ before me.
Notary Public
My commission expires__________________.
Annex A
LEGAL DESCRIPTION
The land with the buildings thereon situated on Forest Street
in Marlborough, Middlesex County, Massachusetts and being
shown as Lots 1 and 2 on a plan of land entitled "Plan of Land
in Marlborough, Mass." drawn by Guerriere & ▇▇▇▇▇▇, Inc.
Engineering and Land Surveying, owned by Metropolitan Life
Insurance Company, Sale 200 feet to an inch, dated August 17,
1989 and recorded in Middlesex County Registry of Deeds in
Book 25878, Page 342, to which plan reference is made for a
more particular description of Lots 1 and 2.
Annex B
Permitted Encumbrances
[NOTE: TO THE EXTENT THAT SPECIFIC ENCUMBRANCES (OTHER THAN
"PROHIBITED LIENS") ARE IDENTIFIED IN ADDITION TO THOSE
DESCRIBED BELOW, SUCH ADDITIONAL ENCUMBRANCES WILL BE ADDED TO
THE LIST BELOW AND THIS "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" FROM TIME TO
TIME BECAUSE OF 3COM'S REQUEST FOR BNPLC'S CONSENT OR APPROVAL
TO AN ADJUSTMENT AS PROVIDED IN THE LEASE.]
This conveyance is subject to any encumbrances that do
not constitute "Prohibited Encumbrances" (as defined in the
Purchase Agreement pursuant to which this Deed is being
delivered), including county and city taxes for the Fiscal
Year 1997, a lien not yet due or payable, and including the
following matters to the extent the same are still valid and
in force:
1. Easement to New England Power Engineering & Service
Corporation dated February 17, 1931 and recorded in Book
5544, Page 152.
2. Easement to New England Power Engineering & Service
Corporation dated February 17, 1931 and recorded in Book
5546, Page 341.
3. Easement to Worcester County Electric Company dated
May 27, 1959 and recorded in Book 9395, Page 43.
4. Order of Taking by the City of Marlborough for
laying out ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ dated December 9, 1968 and
recorded in Book 11624, Page 1; as affected by Order for
the Relocation of Forest Street by the County
Commissioners for the County of Middlesex dated March 24,
1961 and recorded in Book 9789, Page 242.
5. Matters as shown or disclosed on a plan entitled,
"Title Insurance Plan of Land in Marlborough, Mass."
Prepared for: 3COM Corporation Scale: 1" = 100' Date:
November 8, 1996 Prepared by: Guerriere & ▇▇▇▇▇▇, Inc.
Engineering & Land Surveying ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ as follows:
a. encroachment of stone wall;
b. encroachment of fence;
c. encroachment of guard rail; and
d. encroachment of utility poles.
6. Order of Conditions by the Marlborough Conservation
Commission, DEP File No. 212-408 dated April 19, 1990 and
recorded in Book 20539, Page 467.
7. Order of Conditions by the Marlborough Conservation
Commission, DEP File No. 212-408 dated November 29, 1989
and recorded in Book 20539, Page 515, as affected by
Amendment dated April 19, 1990 and recorded in Book
20598, Page 521.
EXHIBIT C
[Intentionally deleted.]
Exhibit D
▇▇▇▇ OF SALE, ASSIGNMENT OF CONTRACT
RIGHTS AND INTANGIBLE ASSETS
Reference is made to that certain Sale Agreement dated
December 13, 1996 (the "Agreement") between 3Com Corporation,
a California Corporation, the predecessor in interest to 3Com
Corporation, a Delaware corporation, and Metropolitan Life
Insurance Company, a New York corporation ("Seller"), pursuant
to which 3Com Corporation named BNP LEASING CORPORATION
("Assignor") as its designee and Seller conveyed to Assignor
the real property described in Annex A attached hereto (the
"Property").
Assignor hereby sells, transfers and assigns unto [3COM
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) any warranties, guaranties, indemnities and claims
Assignor may have under the Agreement or under any document
delivered by Seller thereunder to the extent related to the
Property;
(b) all licenses, permits or similar consents (excluding
any prepaid utility reservations) from third parties to the
extent related to the Property;
(c) 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;
(d) any goods, equipment, furnishings, furniture,
chattels and personal property of whatever nature that are
located on or about the Property; and
(e) any general intangibles, permits, licenses,
franchises, certificates, and other rights and privileges
owned by Assignor and used solely in connection with, or
relating solely to, the Property, including any such rights
and privileges conveyed to Assignor pursuant to the Agreement;
but excluding any rights or privileges of Assignor under (i)
the Environmental Indemnity, as defined in that certain
Purchase Agreement between Assignor and 3Com Corporation dated
as of July 29, 2997 (the "Purchase Agreement") (pursuant to
which this document is being delivered), (ii) the Lease, as
defined in the Purchase Agreement, to the extent rights under
the Lease relate to the period ending on the date hereof,
whether such rights are presently known or unknown, including
rights of the Assignor to be indemnified against claims of
third parties as provided in the Lease which may not presently
be known, and including rights to recover any accrued unpaid
rent under the Lease which may be outstanding as of the date
hereof, (iii) agreements between Assignor and Participants, as
defined in the Lease, or any modification or extension
thereof, and (iv) any other instrument being delivered to
Assignor contemporaneously herewith pursuant to the Purchase
Agreement.
Assignor does for itself and its heirs, executors and
administrators, 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 Assignor, but not otherwise; excluding, however, any
claim or demand arising by, through or under [3COM].
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.
Executed: ____________________, _____.
ASSIGNOR:
BNP LEASING CORPORATION
a Delaware corporation
By:______________________________
Its:_____________________________
ASSIGNEE:
[3COM, OR THE APPLICABLE PURCHASER],
a _________ corporation
By:______________________________
Its:_____________________________
Annex A
Legal Description
The land with the buildings thereon situated on Forest Street
in Marlborough, Middlesex County, Massachusetts and being
shown as Lots 1 and 2 on a plan of land entitled "Plan of Land
in Marlborough, Mass." drawn by Guerriere & ▇▇▇▇▇▇, Inc.
Engineering and Land Surveying, owned by Metropolitan Life
Insurance Company, Sale 200 feet to an inch, dated August 17,
1989 and recorded in Middlesex County Registry of Deeds in
Book 25878, Page 342, to which plan reference is made for a
more particular description of Lots 1 and 2.
Exhibit E
Acknowledgment of Disclaimer of Representations and Warranties
THIS ACKNOWLEDGMENT OF DISCLAIMER OF REPRESENTATIONS AND
WARRANTIES (this "Certificate") is made as of ___________________,
____, by [3COM 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 Corporation Grant
Deed and (2) a ▇▇▇▇ of Sale, Assignment of Contract Rights 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 wilful
misconduct, Active Negligence or gross negligence of BNPLC,
its agents or employees. As used in the preceding sentence,
"Active Negligence" of a party means, and is limited to, the
negligent conduct of activities actually on or about the
Property by that party in a manner that proximately causes
actual bodily injury or property damage to be incurred.
"Active negligence" shall not include (1) any negligent
failure of BNPLC to act when the duty to act would not have
been imposed but for BNPLC's status as owner of the Subject
Property or as a party to the transactions pursuant to which
BNPLC is delivering this instrument (the "Applicable
Transactions"), (2) any negligent failure of any other party
to act when the duty to act would not have been imposed but
for such party's contractual or other relationship to BNPLC or
participation or facilitation in any manner, directly or
indirectly, of the Applicable Transactions, or (3) the
exercise in a lawful manner by BNPLC (or any party lawfully
claiming through or under BNPLC) of any remedy provided in
connection with the Applicable Transactions.
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 ________________, ____.
_________________________________
By:______________________________
Name:_________________________
Title:________________________
Exhibit F
[Intentionally deleted.]
Exhibit G
SECRETARY'S CERTIFICATE
The undersigned, ____________________ 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 Required 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]
CORPORATE RESOLUTIONS OF
BNP LEASING CORPORATION
WHEREAS, pursuant to that certain Purchase Agreement
(herein called the "Purchase Agreement") dated as of July 29,
1997, by and between BNP Leasing Corporation (the "Corporation")
and [3COM OR THE APPLICABLE PURCHASER AS THE CASE MAY BE] ("Purchaser"),
the Corporation agreed to sell and Purchaser agreed to purchase or
cause the Applicable Purchaser (as defined in the Purchase Agreement)
to purchase the Corporation's interest in the property (the "Property")
located in Middlesex County, Massachusetts, 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 H
BNP LEASING CORPORATION
▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
____________________ , ____
[Title Insurance Company]
_________________
_________________
_________________
Re: Recording of Grant Deed to [3COM or the Applicable
Purchaser] ("Purchaser")
Ladies and Gentlemen:
BNP Leasing Corporation has executed and delivered to
Purchaser a Grant Deed in the form attached to this letter.
You are hereby authorized and directed to record the Grant
Deed at the request of Purchaser.
Sincerely,
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 [3COM 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: ___________, ____.
By:______________________________
Name:_________________________
Title:________________________