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Exhibit 10.12
PARTICIPATION AGREEMENT
THIS PARTICIPATION AGREEMENT (this "Agreement" herein), dated as of
November 12, 1997, is entered into by and among:
(1) KLA-TENCOR CORPORATION, a Delaware corporation ("Lessee");
(2) LEASE PLAN U.S.A., INC., a Georgia corporation ("Lessor");
(3) Each of the financial institutions from time to time listed in
Schedule I hereto, as amended from time to time (such financial
institutions to be referred to collectively as the "Participants");
(4) ABN AMRO BANK N.V., acting through its San Francisco
International Branch, as agent for the Participants (in such capacity,
"Agent"); and
(5) BANQUE NATIONALE DE PARIS, as co-agent for the Participants
(in such capacity, "Co-Agent").
RECITALS
A. Pursuant to a Phase IIA Participation Agreement dated as of December
29, 1995 (the "Phase IIA Participation Agreement") among Lessee, Lessor, certain
participants thereunder (the "Phase IIA Participants") and ABN AMRO Bank N.V.,
as agent for the Phase IIA Participants, and a Phase IIA Lease Agreement dated
as of December 29, 1995 (the "Phase IIA Lease Agreement") between Lessor and
Lessee, (1) Lessor purchased the land described in Part 1 of Exhibit A (as more
fully defined in Schedule 1.01, the "Tract 1 Land") and certain related
property; (2) Lessor leased such property to Lessee; and (3) the Phase IIA
Participants participated in the Phase IIA Lease Agreement by funding the
purchase price and other advances made on account of such property.
B. Pursuant to a Phase IIB Participation Agreement dated as of December
29, 1995 (the "Phase IIB Participation Agreement") among Lessee, Lessor, certain
participants thereunder (the "Phase IIB Participants") and ABN AMRO Bank N.V.,
as agent for the Phase IIB Participants, and a Phase IIB Lease Agreement dated
as of December 29, 1995 (the "Phase IIB Lease Agreement") between Lessor and
Lessee, (1) Lessor purchased the land described in Part 5 of Exhibit A (as more
fully defined in Schedule 1.01, the "Tract 5 Land") and certain related
property; (2) Lessor leased such property to Lessee; and (3) the Phase IIB
Participants participated in the Phase IIB Lease Agreement by funding the
purchase price and other advances made on account of such property.
C. In order to refinance the Phase IIA Lease Agreement, the Phase IIB
Lease Agreement and certain other lease agreements and to finance the
acquisition of certain additional property, Lessee has requested Lessor and the
Participants to provide to Lessee a certain lease facility. Pursuant to such
facility:
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(1) Lessor would:
(a) purchase the land described in Part 2 of Exhibit A (as
more fully defined in Schedule 1.01, the "Tract 2 Land"), the
improvements thereto and certain related property designated by
Lessee;
(b) acquire a leasehold interest in the land described in
Part 3 of Exhibit A (as more fully defined in Schedule 1.01, the
"Tract 3 Land") and purchase the improvements to such land and
certain related property designated by Lessee;
(c) purchase the land described in Part 4 of Exhibit A (as
more fully defined in Schedule 1.01, the "Tract 4 Land" and,
collectively with the Tract 1 Land, Tract 2 Land, Tract 3 Land and
Tract 5 Land, the "Land")) , the improvements thereto and certain
related property designated by Lessee;
(d) lease to Lessee all of Lessor's rights in the Land, the
improvements thereto and certain related property designated by
Lessee;
(e) appoint Lessee as Lessor's agent to make certain
improvements to the Tract 1 Land, Tract 3 Land, Tract 4 Land and
Tract 5 Land;
(f) make advances to finance such improvements and to pay
certain related expenses; and
(e) grant to Lessee the right to purchase such property; and
(2) The Participants would participate in such lease facility by
(a) funding the termination payments to be made to the Phase IIA
Participants and Phase IIB Participants (collectively, the "Phase II
Participants") to terminate the Phase IIA Lease Agreement and Phase IIB
Lease Agreement (collectively, the "Phase II Lease Agreements"); (b)
funding the purchase prices to be paid by Lessor for the new property to
be acquired by Lessor; (c) funding other advances to be made by Lessor;
and (d) acquiring participation interests in the rental and certain other
payments to be made by Lessee.
C. Lessor and the Participants are willing to provide such lease
facility upon the terms and subject to the conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
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SECTION 1. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this Agreement or any
other Operative Document, each term set forth in Schedule 1.01, when used in
this Agreement or any other Operative Document, shall have the respective
meaning given to that term in Schedule 1.01 or in the provision of this
Agreement or other document, instrument or agreement referenced in Schedule
1.01.
1.02. Rules of Construction. Unless otherwise indicated in this Agreement
or any other Operative Document, the rules of construction set forth in Schedule
1.02 shall apply to this Agreement and the other Operative Documents.
SECTION 2. LEASE FACILITIES.
2.01. Acquisition, Lease, Amount Limitations, Etc.
(a) Acquisition, Lease, Etc. Subject to the terms and conditions
of this Agreement (including the limitations set forth in Subparagraph
2.01(b)):
(i) On a date specified by Lessee pursuant to Subparagraph
2.03(a) for the acquisition of the Tract 2 Property and Tract 3
Property (the "Closing Date"):
(A) Lessor shall (1) purchase (with funds provided by
the Participants) the Tract 2 Land, together with any
Appurtenant Rights thereto, all Improvements thereto and other
related property; and (2) acquire a leasehold interest in the
Tract 3 Land, together with any Appurtenant Rights thereto,
and purchase (with funds provided by the Participants) all
Improvements thereto and other related property;
(B) Lessor shall pay (with funds provided by the
Participants) (1) to the Phase IIA Participants the amount
necessary to terminate the Phase IIA Lease Agreement (the
"Phase IIA Termination Payment") and (2) to the Phase IIB
Participants the amount necessary to terminate the Phase IIB
Lease Agreement (the "Phase IIB Termination Payment"); and
(C) Immediately upon the purchase and acquisition by
Lessor of such property and the termination of the Phase IIA
Lease Agreement and Phase IIB Lease Agreement, Lessor and
Lessee shall execute (1) a Lease Agreement in the form of
Exhibit B (the "Lease Agreement"), pursuant to which Lessor
will lease to Lessee the Tract 1 Land, Tract 2 Land, Tract 3
Land and Tract 5 Land; (2) a Purchase Agreement in the form of
Exhibit C (the "Purchase Agreement"), pursuant to which Lessor
grants to Lessee the right to purchase such property under the
circumstances described therein and (3) a Construction Agency
Agreement in the form of Exhibit D (the "Construction Agency
Agreement"), pursuant to which Lessee agrees to the manner in
which it
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will construct certain improvements to the Tract 1 Land, Tract
3 Land and Tract 5 Land;
(ii) On a date specified by Lessee pursuant to Subparagraph
2.03(a) for the acquisition of the Tract 4 Property under (the
"Tract 4 Acquisition Date"):
(A) Lessor shall purchase (with funds provided by the
Participants) the Tract 4 Land, together with any Appurtenant
Rights thereto, all Improvements thereto and other related
property; and
(B) Immediately upon the purchase and acquisition by
Lessor of such property, Lessor and Lessee shall execute
amendments to the Lease Agreement, the Purchase Agreement and
the Construction Agency Agreement to the extent necessary to
add such property to the property covered thereby; and
(iii) During the period (the "Commitment Period") beginning on
the Closing Date and ending on November 1, 1998 (the "Outside
Completion Date") or, if earlier, on the first Business Day of the
first full calendar month immediately succeeding the earlier of (A)
the Completion Date and (B) the date on which the Unused Total
Commitment is $0 (the earlier of the Outside Completion Date and
such first Business Day to be referred to as the "Commitment
Termination Date"), Lessor shall, at the request of Lessee, make
additional advances to pay Permitted Improvement Costs and Permitted
Transaction Expenses ("Improvement/Expense Advances").
(b) Amount Limitations. The advances made by Lessor to purchase
property and to terminate the Phase II Lease Agreements (collectively, the
"Acquisition Advances") and the Improvement/Expense Advances made by
Lessor (the Acquisition Advances and the Improvement/Expense Advances to
be referred to collectively as the "Advances") shall be subject to the
following limitations:
(i) The aggregate amount of the Acquisition Advance and any
Improvement/Expense Advance made by Lessor for each Tract of
Property on the Acquisition Date for such Tract shall not exceed the
sum of (A) the Closing Date Appraisal for such Tract of Property,
plus (B) an additional amount allocated by Lessee to pay Permitted
Transaction Expenses and Permitted Improvement Costs related or
allocable to such Tract of Property, provided that the sum of all
such additional amounts allocated by Lessee to pay Permitted
Transaction Expenses and Permitted Improvement Costs for all of the
Property does not exceed $500,000;
(ii) Until Lessee delivers to Lessor the Plans and
Specifications for any New Improvements to be constructed on any
Tract of Property and an Expiration Date Appraisal for such Tract of
Property pursuant to the following clause (iii), the aggregate
amount of all Advances made by Lessor for such Tract of Property
(including the Acquisition Advance and all Improvement/Expense
Advances for
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such Tract of Property) shall not exceed the sum of (A) the Closing
Date Appraisal for such Tract of Property plus (B) an additional
amount allocated by Lessee to pay Permitted Transaction Expenses and
Permitted Improvement Costs related or allocable to such Tract of
Property, provided that the sum of all such additional amounts
allocated by Lessee to pay Permitted Transaction Expenses and
Permitted Improvement Costs for all of the Property does not exceed
$2,000,000;
(iii) After Lessee delivers to Lessor the Plans and
Specifications for any New Improvements to be constructed on any
Tract of Property, together with a certificate of the architect for
such New Improvements certifying that such Plans and Specifications
are complete (which certification may indicate that such Plans and
Specifications are complete as to a building shell or interior
improvements only), and an Expiration Date Appraisal for such Tract
of Property dated as of a recent date, each in form and substance
satisfactory to Lessor and Agent, the aggregate amount of all
Advances made by Lessor for such Tract of Property (including the
Acquisition Advance and all Improvement/Expense Advances for such
Tract of Property) shall not exceed the most recent Expiration Date
Appraisal for such Tract of Property; and
(iv) The aggregate amount of all Advances made by Lessor
(including all Acquisition Advances and all Improvement/Expense
Advances for all Tracts of Property) shall not exceed One Hundred
Seventy-Five Million Dollars ($175,000,000) (the "Total
Commitment").
(c) Additional Expiration Date Appraisals. If, after Lessee
delivers to Lessor the Plans and Specifications for any New Improvements
to be constructed on any Tract of Property and an Expiration Date
Appraisal for such Tract of Property pursuant to clause (iii) of
Subparagraph 2.01(b), Lessee revises, amends, supplements or otherwise
modifies such Plans and Specifications for such Tract of Property
(including the delivery of Plans and Specifications for interior
improvements only) as permitted by the Construction Agency Agreement,
Lessee may deliver to Lessor a subsequent Expiration Date Appraisal for
such Tract of Property, dated as of a recent date prior to the date of
delivery; provided, however, that Lessee may deliver only two (2)
subsequent Expiration Date Appraisals for each Tract of Property. If a
subsequent Expiration Date Appraisal is in form and substance satisfactory
to Lessor and Agent, the amount limitation for such Tract of Property set
forth in clause (iii) of Subparagraph 2.01(b) thereafter shall be set
based upon such subsequent Expiration Date Appraisal.
(d) Tranches. Each Advance shall consist of a Tranche A Portion, a
Tranche B Portion and a Tranche C Portion. For accounting purposes, the
Tranche A Portion and Tranche B Portion of each Advance shall constitute
debt and the Tranche C Portion shall constitute equity. If, at the time
Lessee delivers any Expiration Date Appraisal for any Tract of Property
pursuant to Subparagraph 2.01(b) or Subparagraph 2.01(c), the maximum
amount of the Tranche A Proportionate Share permitted under FASB 13 is
changed due to any change in the appraised value of the applicable Land
and Improvements as set forth in such appraisal, the parties hereto shall
enter into an
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amendment to this Agreement amending Part A of Schedule I and the
definitions of "Tranche A Proportionate Share" and "Tranche B
Proportionate Share" to the extent necessary to satisfy the requirements
of FASB 13, provided that no such amendment shall (i) increase the
Proportionate Share of any Participant; (ii) change the ratio of any
Participant's Tranche A Percentage to the Tranche A Proportionate Share or
the ratio of any Participant's Tranche B Percentage to the Tranche B
Proportionate Share; (iii) change any Participant's Tranche C Percentage
or the Tranche C Proportionate Share; or (iv) decrease the Tranche A
Portion to less than eighty percent (80%).
2.02. Participation Agreement.
(a) Advances. Subject to the terms and conditions of this
Agreement, each Participant severally, unconditionally and irrevocably
agrees with Lessor to participate in each Advance made by Lessor in an
amount equal to such Participant's Proportionate Share of such Advance;
provided, however, that the aggregate amount of each Participant's
Proportionate Share of all Advances shall not exceed such Participant's
Commitment. Each Participant shall fund its Proportionate Share of each
Advance as provided in Subparagraph 2.05(a). Each Participant's
Proportionate Share of each Advance shall consist of such Participant's
Tranche A Portion, Tranche B Portion and Tranche C Portion of such
Advance.
(b) Payments. In consideration of each Participant's participation
in each Advance made by Lessor, such Participant shall participate in the
payments made by Lessee under this Agreement and the other Operative
Documents as provided in Paragraph 2.06.
(c) Other Rights of Participants and Agent.
(i) Until all amounts payable to Agent and Participants
under this Agreement and the other Operative Documents are paid in
full, Lessee shall deliver all notices for Lessor under this
Agreement and the other Operative Documents to Agent at the office
or facsimile number and during the hours specified in Paragraph
7.01. Agent shall promptly furnish to Lessor and each Participant
copies of each such notice and, in the case of each request for an
Advance, shall notify each Participant of the amount of such
Participant's Proportionate Share of the Advance requested thereby.
(ii) Lessor is not an agent for Participants or Agent and may
exercise or refrain from exercising its rights under this Agreement
and the other Operative Documents in its discretion; provided,
however that, until all amounts payable to Agent and Participants
under this Agreement and the other Operative Documents are paid in
full, (A) Lessor shall, subject to the limitations set forth in
Section VI, be required to act or to refrain from acting upon
instructions of the Required Participants as provided in Paragraph
6.03 and (B) Agent may exercise any or all of the rights and
remedies of Lessor, and shall be entitled to the other benefits
afforded Lessor, under this Agreement and the other Operative
Documents.
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(iii) Neither Agent nor any Participant shall have any right,
title or interest in the Property except for the Lien therein
granted to Agent, for the benefit of the Participants, under the
Lessor Deed of Trust, the Lessor Security Agreement and the
Assignment of Lease.
2.03. Advance Requests.
(a) Acquisition Requests. Lessee shall request Lessor to make each
Acquisition Advance under this Agreement by delivering to Agent an
irrevocable written request in the form of Exhibit E, appropriately
completed (an "Acquisition Request"), which specifies, among other things:
(i) The Tract(s) of Property to be purchased or Phase II
Lease Agreement(s) to be terminated;
(ii) The amount of such requested Acquisition Advance,
including the amount of the Acquisition Price(s) or of the Phase IIA
Termination Payment or Phase IIB Termination Payment (individually,
a "Phase II Termination Payment") and the Permitted Transaction
Expenses included in such Acquisition Advance;
(iii) The date selected by Lessor as the Acquisition Date for
such purchase or termination, which shall be, (A) in the case of the
Acquisition Advances to purchase the Tract 2 Property and the Tract
3 Property and to pay the Phase II Termination Payments (the
"Initial Acquisition Advances"), on the same date that is a Business
Day on or prior to December 31, 1997 and (B) in the case of the
Acquisition Advance to purchase the Tract 4 Property (the "Tract 4
Acquisition Advance"), on a date that is a Business Day on or prior
to June 1, 1998; and
(iv) The Portions into which such Advance(s) is (are) to be
divided and the Rental Period for each Portion.
(b) Improvement/Expense Advance Requests. Lessee shall request
Lessor to make each Improvement/Expense Advance by delivering to Lessor:
(i) An irrevocable written request in the form of Exhibit F,
appropriately completed (an "Improvement/Expense Advance Request"),
which specifies, among other things:
(A) The amount of such Advance, which shall be in the
amount of $1,000,000 or an integral multiple of $100,000 in
excess thereof;
(B) The date of such Advance, which shall be the first
Business Day of a month; and
(C) The Permitted Improvement Costs and Permitted
Transaction Expenses to be paid by such Advance and the
Tract(s) of Property for which payable; and
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(ii) If the proceeds of such Advance are to be used to
purchase Related Goods:
(A) A Supplement to Exhibit B to the Lease Agreement
in the form of Exhibit B(1) to the Lease Agreement (an
"Exhibit B Supplement"), which contains a detailed description
of such Related Goods; and
(B) Bills of sale for all such Related Goods showing
Lessor as the purchaser.
Lessee shall not request more than one (1) Improvement/Expense Advance in any
calendar month.
(c) Delivery of Advance Requests. Etc. Lessee shall deliver to
Lessor the Acquisition Requests for the Initial Acquisition Advances at
least one (1) Business Day before the Closing Date and the Acquisition
Request for the Tract 4 Acquisition Advance at least one (1) Business Day
before the Tract 4 Acquisition Date. Lessee shall deliver each
Improvement/Expense Advance Request to Lessor at least three (3) Business
Days before the date of such Advance. The Acquisition Requests and
Improvement/Expense Advance Requests (collectively, "Advance Requests")
shall be delivered by first-class mail or facsimile as required by
Subparagraph 2.02(c) and Paragraph 7.01; provided, however, that Lessee
shall promptly deliver to Lessor the original of any Advance Request
initially delivered by facsimile.
(d) Capitalization of Base Rent During Commitment Period. On each
Scheduled Rent Payment Date occurring under the Lease Agreement during the
Commitment Period, the portion of the Base Rent due on such Scheduled Rent
Payment Date and attributable to the New Improvements shall be capitalized
by automatically treating the amount of such Base Rent as an
Improvement/Expense Advance made on such Scheduled Rent Payment Date.
Agent shall notify Lessor and each Participant of the amount of the Base
Rent due on each such Scheduled Rent Payment Date and so treated as an
Improvement/Expense Advance.
2.04. Fees.
(a) Agent's Fees. Lessee shall pay to Agent, for its own account,
agent's fees in the amounts and at the times set forth in the Agent's Fee
Letter (the "Agent's Fees").
(b) Commitment Fees. Lessee shall pay to Agent, for the ratable
benefit of the Participants as provided in clause (ii) of Subparagraph
2.06(c), commitment fees (the "Commitment Fees") of fifteen hundredths of
one percent (0.15%) per annum on the daily average Unused Total Commitment
for the period beginning on the date of this Agreement and ending on the
Commitment Termination Date. Lessee shall pay the Commitment Fees in
arrears on the first Business Day in each January, April, July and October
(commencing January 1, 1998) and on the Commitment Termination Date (or if
the Total Commitment is cancelled on a date prior to such day, on such
prior date).
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(c) Commitment Extension Fee. If Lessor and the Participants
consent to any extension of the Commitment Termination Date requested by
Lessee pursuant to Subparagraph 2.09(a), Lessee shall pay to Agent, for
the ratable benefit of the Participants as provided in clause (iii) of
Subparagraph 2.06(c), an extension fee (the "Commitment Extension Fee") of
Ten Thousand Dollars ($10,000). Lessee shall pay the Commitment Extension
Fee on or prior to the Business Day immediately preceding the original
Commitment Termination Date.
2.05. Funding of Advances.
(a) Participant Funding and Disbursement. Subject to the terms and
conditions of this Agreement, each Participant shall, before 12:00 p.m. on
the date of each Advance, make available to Agent at its office specified
in Paragraph 7.01, in same day or immediately available funds, such
Participant's Proportionate Share of such Advance. After Agent's receipt
of such funds and upon fulfillment of the applicable conditions set forth
in Section III, Agent will promptly disburse such funds on behalf of
Lessor, in same day or immediately available funds, as follows:
(i) Agent shall disburse each Acquisition Advance to
purchase property on the Closing Date or the Tract 4 Acquisition
Date to an escrow or other account established for payment of the
applicable Acquisition Price and any related Permitted Transaction
Expenses pursuant to the applicable Acquisition Agreements or
otherwise as directed by Lessee in the Advance Request for such
Acquisition Advance to pay such amounts.
(ii) Agent shall disburse each Acquisition Advance to pay a
Phase II Termination Payment on the Closing Date to ABN AMRO, as
agent for the Phase IIA Participants or the Phase IIB Participants,
as the case may be, and any related Permitted Transaction Expenses
as directed by Lessee in the Advance Request for such Acquisition
Advance to pay such amounts.
(iii) Agent shall disburse each Improvement/Expense Advance as
directed by Lessee in the Advance Request for such
Improvement/Expense Advance.
(b) Participant Failure to Fund. Unless Agent shall have received
notice from a Participant prior to the date of any Advance that such
Participant will not make available to Agent such Participant's
Proportionate Share of such Advance, Agent may assume that such
Participant has made such portion available to Agent on the date of such
Advance in accordance with Subparagraph 2.05(a), and Agent may, in
reliance upon such assumption, disburse the full amount of such Advance on
such date; provided, however, that neither Agent nor Lessor shall have any
obligation to make an Advance requested hereunder in an amount which
exceeds the aggregate amount of funds actually received by Agent from the
Participants on account of their respective Proportionate Shares of such
Advance. If any Participant does not make the amount of its Proportionate
Share of any Advance available to Agent on or prior to the date such
Advance is made, such Participant shall pay to Agent, on demand, interest
which shall accrue on such amount
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until made available to Agent at rates equal to (i) the daily Federal
Funds Rate during the period from the date of such Advance through the
third Business Day thereafter and (ii) the Base Rate plus two percent
(2.0%) thereafter. A certificate of Agent submitted to any Participant
with respect to any amounts owing under this Subparagraph 2.05(b) shall be
conclusive absent manifest error. If any Participant's Proportionate Share
of any Advance is not in fact made available to Agent by such Participant
within three (3) Business Days after the date of such Advance, Lessee
shall pay to Agent, on demand, an amount equal to such Proportionate Share
together with interest thereon, for each day from the date such amount was
made available to Lessee until the date such amount is repaid to Agent, at
a per annum rate equal to the Base Rate.
(c) Participants' Obligations Several. The failure of any
Participant to fund its Proportionate Share of any Advance shall not
relieve any other Participant of its obligation hereunder to fund its
Proportionate Share of such Advance, and no Participant shall be
responsible for the failure of any other Participant to fund its
Proportionate Share of any Advance on the date of such Advance.
2.06. Sharing of Payments.
(a) Outstanding Lease Amount. Lessor shall share payments applied
to reduce the Outstanding Lease Amount as follows:
(i) Each payment of the Outstanding Lease Amount derived
from the purchase price paid by Lessee (or an Assignee Purchaser) to
purchase the Property pursuant to the Purchase Agreement shall be
shared by the Participants pro rata according to their respective
Outstanding Participation Amounts at the time of such payment.
(ii) Each payment of the Outstanding Lease Amount derived
from the Residual Value Guaranty Amount paid by Lessee pursuant to
the Purchase Agreement shall be shared first by the Tranche A
Participants pro rata according to their respective Outstanding
Tranche A Participation Amounts at the time of such payment; second,
if any amounts remain after all Outstanding Tranche A Participation
Amounts are paid in full, by the Tranche B Participants pro rata
according to their respective Outstanding Tranche B Participation
Amounts at the time of such payment; and third, if any amounts
remain after all Outstanding Tranche A Participation Amounts and all
Outstanding Tranche B Participation Amounts are paid in full, by the
Tranche C Participants pro rata according to their respective
Outstanding Tranche C Participation Amounts at the time of such
payment.
(iii) Each payment of the Outstanding Lease Amount derived
from:
(A) the purchase price paid by a Designated Purchaser
to purchase the Property pursuant to the Purchase Agreement;
(B) the Indemnity Amount paid by Lessee pursuant to
the Purchase Agreement; or
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(C) Casualty Proceeds or Condemnation Proceeds related
to any of the Property;
Shall be shared first by the Tranche B Participants pro rata
according to their respective Outstanding Tranche B Participation
Amounts at the time of such payment; second, if any amounts remain
after all Outstanding Tranche B Participation Amounts are paid in
full, by the Tranche A Participants pro rata according to their
respective Outstanding Tranche A Participation Amounts at the time
of such payment; and third, if any amounts remain after all
Outstanding Tranche B Participation Amounts and all Outstanding
Tranche A Participation Amounts are paid in full, by the Tranche C
Participants pro rata according to their respective Outstanding
Tranche C Participation Amounts at the time of such payment.
(iv) Each payment of the Outstanding Lease Amount derived
from the purchase price paid by any other Person to purchase the
Property (whether after the retention of such Property by Lessor
following the Expiration Date of the Lease Agreement, upon
foreclosure or otherwise) shall be shared first by the Tranche B
Participants pro rata according to their respective Outstanding
Tranche B Participation Amounts at the time of such payment; second,
if any amounts remain after all Outstanding Tranche B Participation
Amounts are paid in full, by the Tranche A Participants pro rata
according to their respective Outstanding Tranche A Participation
Amounts at the time of such payment; and third, if any amounts
remain after all Outstanding Tranche B Participation Amounts and all
Outstanding Tranche A Participation Amounts are paid in full, by the
Tranche C Participants pro rata according to their respective
Outstanding Tranche C Participation Amounts at the time of such
payment.
(b) Base Rent. Lessor shall share each payment applied to Base
Rent among the Participants which funded the Outstanding Lease Amount pro
rata according to (i) the respective Outstanding Participation Amounts so
funded by such Participants and (ii) the dates on which such Participants
so funded such amounts.
(c) Supplemental Rent. Lessor shall share each payment applied to
Supplemental Rent among the Lessor Parties as follows:
(i) Each payment applied to Agent's Fees shall be solely for
the account of Agent.
(ii) Each payment applied to Commitment Fees shall be shared
by the Participants pro rata according to (A) their respective
Proportionate Shares and (B) in the case of each Participant which
becomes a Participant hereunder after the date hereof, the date upon
which such Participant so became a Participant.
(iii) Each payment applied to the Commitment Extension Fee
shall be shared by the Participants pro rata according to their
respective Proportionate Shares on the date of such payment.
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(iv) Each payment applied to reimburse any Lessor Party for
any fees, costs and expenses incurred by such Lessor Party shall be
solely for the account of such Lessor Party.
(v) Each payment of interest (other than Base Rent) shall be
shared among the Lessor Parties owed the amount upon which such
interest accrues pro rata according to (A) the respective amounts so
owed such Lessor Parties and (B) the dates on which such amounts
became owing to such Lessor Parties.
(vi) All other payments under this Agreement and the other
Operative Documents shall be for the benefit of the Person or
Persons specified.
(d) Disproportionate Payments, Etc. If any Lessor Party shall
obtain any payment (whether voluntary, involuntary, through the exercise
of any right of setoff, or otherwise) on account of amounts owed to it in
excess of its ratable share of payments on account of such amounts
obtained by all Lessor Parties entitled to such payments, such Lessor
Party shall forthwith purchase from the other Lessor Parties such
participations in the payments to be made under the Operative Documents as
shall be necessary to cause such purchasing Lessor Party to share the
excess payment ratably with each of them; provided, however, that if all
or any portion of such excess payment is thereafter recovered from such
purchasing Lessor Party, such purchase shall be rescinded and each other
Lessor Party shall repay to the purchasing Lessor Party the purchase price
to the extent of such recovery together with an amount equal to such other
Lessor Party's ratable share (according to the proportion of (i) the
amount of such other Lessor Party's required repayment to (ii) the total
amount so recovered from the purchasing Lessor Party) of any interest or
other amount paid or payable by the purchasing Lessor Party in respect of
the total amount so recovered. Lessee agrees that any Lessor Party so
purchasing a participation from another Lessor Party pursuant to this
Subparagraph 2.06(d) may, to the fullest extent permitted by law, exercise
all its rights of payment (including the right of setoff) with respect to
such participation as fully as if such Lessor Party were the direct
creditor of Lessee in the amount of such participation.
2.07. Other Payment Terms.
(a) Place and Manner of Payments by Lessee. Lessee shall make all
payments due to any Lessor Party under this Agreement and the other
Operative Documents by payments to Agent, for the account of such Person,
at Agent's office, located at the address specified in Paragraph 7.01,
with each payment due to a Participant to be for the account of such
Participant's Applicable Participating Office. Lessee shall make all
payments in lawful money of the United States and in same day or
immediately available funds not later than 11:00 a.m. on the date due.
Agent shall promptly disburse to the appropriate Person each such payment
received by Agent for such Person.
(b) Date. Whenever any payment due under this Agreement or any
other Operative Document shall fall due on a day other than a Business
Day, such payment shall be made on the next succeeding Business Day, and
such extension of time shall be included in the computation of Rent,
interest or fees, as the case may be.
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(c) Late Payments. If any amounts required to be paid by Lessee
under this Agreement or any other Operative Document (including Rent,
interest, fees or other amounts) remain unpaid after such amounts are due,
Lessee shall pay interest on the aggregate, outstanding balance of such
amounts from the date due until those amounts are paid in full at a per
annum rate equal to the Base Rate plus two percent (2.0%), such rate to
change from time to time as the Base Rate shall change.
(d) Application of Payments. All payments under this Agreement and
the other Operative Documents shall be applied first to unpaid fees, costs
and expenses and other Supplemental Rent then due and payable under this
Agreement or any other Operative Document, second to the accrued Base Rent
then due and payable under this Agreement or any other Operative Document
and finally to reduce the Outstanding Lease Amount.
(e) Failure to Pay Agent. Unless Agent shall have received notice
from Lessee at least one (1) Business Day prior to the date on which any
payment is due to Lessor or the Participants under this Agreement or the
other Operative Documents that Lessee will not make such payment in full,
Agent may assume that Lessee has made such payment in full to Agent on
such date and Agent may, in reliance upon such assumption, cause to be
distributed to the appropriate Persons on such due date an amount equal to
the amount then due such Persons. If and to the extent Lessee shall not
have so made such payment in full to Agent, each such Person shall repay
to Agent forthwith on demand such amount distributed to such Person
together with interest thereon, for each day from the date such amount is
distributed to such Person until the date such Person repays such amount
to Agent, at (i) the Federal Funds Rate for the first three (3) days and
(ii) the Base Rate plus two percent (2.0%) thereafter, such rate to change
from time to time as the Base Rate shall change. A certificate of Agent
submitted to any Person with respect to any amounts owing by such Person
under this Subparagraph 2.07(e) shall be conclusive absent manifest error.
2.08. Commitment Reductions.
(a) Reduction or Cancellation of Commitments. Lessee may, at any
time prior to the Commitment Termination Date, upon five (5) Business Days
written notice to Lessor, permanently reduce the Total Commitment by the
amount of Five Million Dollars ($5,000,000) or an integral multiple of One
Million Dollars ($1,000,000) in excess thereof or cancel the Total
Commitment in its entirety.
(b) Effect of Commitment Reductions. From the effective date of
any reduction of the Total Commitment, the Commitment Fees shall be
computed on the basis of the Total Commitment as so reduced. Once reduced
or cancelled, the Total Commitment may not be increased or reinstated
without the prior written consent of Lessor and all Participants. Any
reduction of the Total Commitment pursuant to this Paragraph 2.08 shall be
applied ratably to reduce each Participant's Commitment pro rata in
accordance with its Proportionate Share.
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2.09. Extensions.
(a) Commitment Extension. Lessee may request Lessor to extend the
Commitment Termination Date for an additional period of six (6) months by
appropriately completing, executing and delivering to Agent a written
request in the form of Exhibit G(1) (a "Commitment Extension Request").
Lessee shall deliver the Commitment Extension Request to Agent not more
than three (3) months and not less than two (2) months before the original
Commitment Termination Date. Agent shall promptly deliver to Lessor and
each Participant three (3) copies of each Commitment Extension Request
received by Agent. If Lessor or a Participant, in its sole and absolute
discretion, consents to the Commitment Extension Request, such Person
shall evidence such consent by executing and returning two (2) copies of
the Commitment Extension Request to Agent not later than the last Business
Day which is not less than fifteen (15) Business Days prior to the
original Commitment Termination Date. Any failure by Lessor or any
Participant so to execute and return a Commitment Extension Request shall
be deemed a denial thereof. If Lessee shall deliver a Commitment Extension
Request to Lessor pursuant to the first sentence of this Subparagraph
2.09(a), then not later than ten (10) Business Days prior to the original
Commitment Termination Date, Agent shall notify Lessee, Lessor and the
Participants in writing whether (i) Agent has received a copy of the
Commitment Extension Request executed by Lessor and each Participant, in
which case the definition of "Commitment Termination Date" set forth in
Subparagraph 2.01(a) shall be deemed extended to the date which is six (6)
months after the original Commitment Termination Date (subject to receipt
by Agent of the Commitment Extension Fee), or (ii) Agent has not received
a copy of the Commitment Extension Request executed by Lessor and each
Participant, in which case such Commitment Extension Request shall be
deemed denied. Lessee acknowledges that neither Lessor nor any Participant
has promised (either expressly or implicitly), or has any obligation or
commitment, to extend or consent to the extension of the Commitment
Termination Date at any time.
(b) Lease Extension. Lessee may request Lessor to extend the
original Scheduled Expiration Date of the Lease Agreement for an
additional period of two (2) years by appropriately completing, executing
and delivering to Agent a written request in the form of Exhibit G(2),
together with an attachment thereto setting forth the terms upon which
Lessee would propose for the requested extension (a "Lease Extension
Request"). Lessee shall deliver the Lease Extension Request to Agent not
more than three (3) months and not less than two (2) months before the
first anniversary of the Closing Date. Agent shall promptly deliver to
Lessor and each Participant three (3) copies of the Lease Extension
Request received by Agent. If Lessor or a Participant, in its sole and
absolute discretion, consents to a Lease Extension Request, such Person
shall evidence such consent by executing and returning two (2) copies of
such Lease Extension Request to Agent not later than the last Business Day
which is not less than one (1) month prior to the first anniversary of the
Closing Date. Any failure by Lessor or any Participant so to execute and
return a Lease Extension Request shall be deemed a denial thereof. If
Lessee shall deliver a Lease Extension Request to Lessor pursuant to the
first sentence of this Subparagraph 2.09(b), then not later than the last
Business Day which is not less than fifteen (15) Business Days prior to
the first anniversary of the Closing Date, Agent shall
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notify Lessee, Lessor and the Participants in writing whether (i) Agent
has received a copy of the Lease Extension Request executed by Lessor and
each Participant, in which case the definition of "Scheduled Expiration
Date" set forth in Subparagraph 2.02(a) of the Lease Agreement shall be
deemed extended to the date which is two (2) years after the original
Scheduled Expiration Date (subject to the receipt by Agent of any amounts
payable by Lessee in connection with such extension), or (ii) Agent has
not received a copy of the Lease Extension Request executed by Lessor and
each Participant, in which case such Lease Extension Request shall be
deemed denied. Lessee acknowledges that neither Lessor nor any Participant
has promised (either expressly or implicitly), or has any obligation or
commitment, to extend or consent to the extension of the Scheduled
Expiration Date at any time.
2.10. Nature of the Transactions. Lessee and the Lessor Parties intend
that the transactions evidenced by this Agreement and the other Operative
Documents constitute operating leases pursuant to FASB 13 for accounting
purposes and loans secured by the Property for all other purposes, including
federal, state and local income tax purposes and commercial, real estate and
bankruptcy law purposes. To the extent that this Agreement and the other
Operative Documents reflect the lease form alone, they do so for convenience
only. Lessee and the Lessor Parties intend that the Operative Documents have the
dual form referred to in the first sentence of this paragraph, notwithstanding
the use of the lease form alone.
(a) Tax Treatment. For purposes of all income, franchise and other
taxes imposed upon or measured by income, Lessee and Lessor Parties intend
that the transactions evidenced by the Operative Documents shall be
treated as loans by the Participants (through Lessor) to Lessee secured by
the Property, with Lessee as owner of the Property. Lessee and the Lessor
Parties may only take deductions, credits, allowances and other reporting
positions on their respective returns, reports and statements which are
consistent with such treatment, unless required to do otherwise by an
appropriate taxing authority after the completion of judicial proceedings
at which Lessee has had a full and complete opportunity to present its
position or after a clearly applicable change in applicable Governmental
Rules; provided, however, that if an appropriate taxing authority or a
clearly applicable change in applicable Governmental Rules requires any
Lessor Party to take such an inconsistent position, such Lessor Party
shall promptly notify Lessee.
(b) Other Legal Treatment. For purposes of commercial law, real
property law, bankruptcy law and other applicable laws, Lessee and Lessor
Parties also intend that the transactions evidenced by the Operative
Documents shall be treated as loans by the Participants (through Lessor)
to Lessee secured by the Property, with Lessee as owner of the Property.
Consistent with such treatment, Lessee and the Lessor Parties intend that,
among other things for such purposes, (i) the Advances be treated as loans
to Lessee by the Participants (through Lessor); (ii) the Advances be
secured by the Property and the Lessor Parties have the rights and
remedies of secured lenders; (iii) Base Rent be treated as interest on the
Advances; (iv) Lessee be required to pay on the Expiration Date only the
Residual Value Guaranty Amount, the Indemnity Amount and the other amounts
required by clause (ii) of Subparagraph 4.06(a) of the Purchase Agreement
(or clause (iii) of Subparagraph 4.06(a) if Lessor is retaining the
Property) if Lessee exercises the
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Marketing Option in accordance with the Purchase Agreement; and (v) Lessee
be required to pay on the Expiration Date the Outstanding Lease Amount and
all other amounts outstanding under this Agreement and the other Operative
Documents (including amounts required by clause (i) of Subparagraph
4.06(a) of the Purchase Agreement) if the Lease Agreement is terminated
prior to its Scheduled Expiration Date after an Event of Default occurs
under the Lease Agreement or if Lessee fails to or is otherwise not
entitled to exercise the Marketing Option in accordance with the Purchase
Agreement.
(c) No Reliance by Lessee. Lessee acknowledges and agrees that no
Lessor Party has made any representations or warranties to Lessee
concerning the tax, accounting or legal characteristics of the Operative
Documents and that Lessee has obtained and relied upon such tax,
accounting and legal advice concerning the Operative Documents as it deems
appropriate.
2.11. Security.
(a) Lessee Obligations.
(i) To the extent that the transaction evidenced by the
Lease Agreement, Purchase Agreement and other Operative Documents is
treated as a loan by the Participants (through Lessor) to Lessee
secured by the Property, with Lessee as owner of the Property
pursuant to Paragraph 2.10, the Lessee Obligations shall be secured
by the Real Property Collateral and the Personal Property Collateral
(collectively, the "Property Collateral") as provided in
Subparagraphs 2.07(a) and 2.07(b) of the Lease Agreement and in an
Assignment of Construction Agreements in the form of Exhibit H, duly
executed by Lessee (the "Assignment of Construction Agreements"),
and the other Lessee Security Documents.
(ii) In addition to the Property Collateral, the Lessee
Obligations shall be secured, as provided in the Purchase Agreement,
by a Cash Collateral Agreement in a form acceptable to Lessor and
Agent, duly executed by Lessee (the "Cash Collateral Agreement"),
and Cash Collateral delivered to Agent or Participants pursuant to
the Cash Collateral Agreement if Lessee elects to exercise the
Marketing Option after Lessor notifies Lessee that Lessor is
terminating the Lease Agreement on a Termination Date that is prior
to the Scheduled Expiration Date and the only basis for such early
termination is the occurrence of a Non-Marketing Option Event of
Default.
(iii) Lessee shall deliver to Lessor and Agent such additional
mortgages, deeds of trust, security agreements, pledge agreements,
lessor consents and estoppels (containing appropriate mortgagee and
lender protection language) and other instruments, agreements,
certificates, opinions and documents (including Uniform Commercial
Code financing statements and fixture filings and landlord waivers)
as Lessor or Agent may reasonably request to (A) grant, perfect,
maintain, protect and evidence security interests in favor of
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Lessor or Agent in the Property Collateral and Cash Collateral prior
to the Liens or other interests of any Person, except in the case of
the Property Collateral for Permitted Property Liens; and (B)
otherwise establish, maintain, protect and evidence the rights
provided to Lessor and Agent in the Property Collateral and Cash
Collateral. Lessee shall fully cooperate with Lessor and Agent and
perform all additional acts reasonably requested by Lessor or Agent
to effect the purposes of this Subparagraph 2.11(a).
(b) Lessor Obligations.
(i) The Lessor Obligations shall be secured by the
following:
(A) An Assignment of Lease Agreement and Purchase
Agreement in the form of Exhibit I, duly executed by Lessor
(the "Assignment of Lease");
(B) A Construction Deed of Trust with Assignment of
Rents, Security Agreement and Fixture Filing in the form of
Exhibit J, duly executed by Lessor (the "Lessor Deed of
Trust"); and
(C) A Security Agreement in the form of Exhibit K,
duly executed by Lessor (the "Lessor Security Agreement").
(ii) Lessor shall deliver to Agent such additional mortgages,
deeds of trust, security agreements, pledge agreements, lessor
consents and estoppels (containing appropriate mortgagee and lender
protection language) and other instruments, agreements,
certificates, opinions and documents (including Uniform Commercial
Code financing statements and fixture filings and landlord waivers)
as Agent may reasonably request to (A) grant, perfect, maintain,
protect and evidence security interests in favor of Agent in
Lessor's rights in the Property Collateral and Cash Collateral; and
(B) otherwise establish, maintain, protect and evidence the rights
provided to Agent in the Property Collateral and Cash Collateral.
Lessor shall fully cooperate with Agent and perform all additional
acts reasonably requested by Agent to effect the purposes of this
Subparagraph 2.11(b).
(iii) Lessee hereby consents to the Assignment of Lease, the
Lessor Deed of Trust and the Lessor Security Agreement; the Liens
granted to Agent therein; and all other Liens granted to Agent in
any of the Operative Documents and the Property to secure the Lessor
Obligations.
2.12. Change of Circumstances.
(a) Inability to Determine Rates. If, on or before the first day
of any Rental Period for any Portion, (i) any Participant shall advise
Agent that the LIBOR Rental Rate for such Rental Period and Portion cannot
be adequately and reasonably determined due to the unavailability of funds
in or other circumstances affecting the London interbank market or (ii)
Majority Participants shall advise Agent that the LIBOR Rental Rate for
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such Rental Period and Portion does not adequately and fairly reflect the
cost to such Participants of funding their shares of such Portion, Agent
shall immediately give notice of such condition to Lessee, Lessor and the
other Participants. After the giving of any such notice (and until Agent
shall otherwise notify Lessee and Lessor that the circumstances giving
rise to such condition no longer exist), the LIBOR Rental Rate shall be
unavailable and the Rental Rate for each new Rental Period shall be the
Alternate Rental Rate.
(b) Illegality. If, after the date of this Agreement, the adoption
of any Governmental Rule, any change in any Governmental Rule or the
application or requirements thereof (whether such change occurs in
accordance with the terms of such Governmental Rule as enacted, as a
result of amendment or otherwise), any change in the interpretation or
administration of any Governmental Rule by any Governmental Authority, or
compliance by Lessor or any Participant with any request or directive
(whether or not having the force of law) of any Governmental Authority,
except for any such adoption or change publicly announced prior to the
date of this Agreement (a "Change of Law") shall make it unlawful or
impossible for any Participant to fund or maintain its portion of the
Outstanding Lease Amount at the LIBOR Rental Rate, such Participant shall
immediately notify Agent and Agent shall immediately notify Lessee, Lessor
and the other Participants of such Change of Law. After the giving of any
such notice (and until Agent shall otherwise notify Lessee and Lessor that
such Change of Law is no longer in effect), the LIBOR Rental Rate shall be
unavailable and the Rental Rate for each Rental Period shall be the
Alternate Rental Rate.
(c) Increased Costs. If, after the date of this Agreement, any
Change of Law:
(i) Shall subject Lessor or any Participant to any tax, duty
or other charge with respect to the Outstanding Lease Amount, or
shall change the basis of taxation of Base Rent payments by Lessee
to Lessor or any Participant under this Agreement or any other
Operative Document (except for changes in the rate of taxation on
the overall net income of Lessor or any Participant imposed by its
jurisdiction of incorporation, the jurisdiction in which its
principal executive office is located or, in the case of any
Participant, the jurisdiction in which its Applicable Participating
Office is located); or
(ii) Shall impose, modify or hold applicable any reserve
(excluding any Reserve Requirement or other reserve to the extent
included in the calculation of the LIBOR Rental Rate), special
deposit or similar requirement against assets held by, deposits or
other liabilities in or for the account of, advances or loans by, or
any other acquisition of funds by Lessor or any Participant for its
portion of the Outstanding Lease Amount; or
(iii) Shall impose on Lessor or any Participant any other
condition related to the Outstanding Lease Amount, Base Rent or
Lessor's or such Participant's commitments hereunder;
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And the effect of any of the foregoing is to increase the cost to Lessor
or such Participant of funding or maintaining its portion of the
Outstanding Lease Amount or commitments or to reduce any amount receivable
by Lessor or such Participant hereunder; then Lessee shall from time to
time within fifteen (15) Business Days after demand by Lessor or such
Participant, pay to Lessor or such Participant additional amounts
sufficient to reimburse Lessor or such Participant for such increased
costs or to compensate Lessor or such Participant for such reduced
amounts; provided, however, that Lessee shall have no obligation to make
any payment to any demanding party under this Subparagraph 2.12(c) on
account of any such increased costs or reduced amounts relating to any
Rental Period that ended more than six (6) months prior to such demanding
party's first demand for payment (or, if any increased costs or reduced
amounts do not relate to a particular Rental Period,. on account of any
such increased costs or reduced amounts about which the demanding party
first knew or should have known more than six (6) months prior to its
first demand for payment). A certificate setting forth in reasonable
detail the amount of such increased costs or reduced amounts, submitted by
Lessor or such Participant to Lessee shall, in the absence of manifest
error, be conclusive and binding on Lessee for all purposes. The
obligations of Lessee under this Subparagraph 2.12(c) shall survive the
payment and performance of the Lessee Obligations and the termination of
this Agreement.
(d) Capital Requirements. If, after the date of this Agreement,
Lessor or any Participant determines that (i) any Change of Law affects
the amount of capital required to be maintained by such Person or any
other Person controlling such Person (a "Capital Adequacy Requirement")
and (ii) the amount of capital maintained by such Person or such other
Person which is attributable to or based upon the Advances, the
commitments or this Agreement must be increased as a result of such
Capital Adequacy Requirement (taking into account such Person's or such
other Person's policies with respect to capital adequacy), Lessee shall
pay to such Person or such other Person, within fifteen (15) Business Days
after demand of such Person, such amounts as such Person or such other
Person reasonably shall determine are necessary to compensate such Person
or such other Person for the increased costs to such Person or such other
Person of such increased capital; provided, however, that Lessee shall
have no obligation to make any payment to any demanding party under this
Subparagraph 2.12(d) on account of any such increased costs relating to
any Rental Period that ended more than six (6) months prior to such
demanding party's first demand for payment (or, if any increased costs or
reduced amounts do not relate to a particular Rental Period,. on account
of any such increased costs or reduced amounts about which the demanding
party first knew or should have known more than six (6) months prior to
its first demand for payment). A certificate of Lessor or any Participant
setting forth in reasonable detail the computation of any such increased
costs, delivered by such Person to Lessee shall, in the absence of
manifest error, be conclusive and binding on Lessee for all purposes. The
obligations of Lessee under this Subparagraph 2.12(d) shall survive the
payment and performance of the Lessee Obligations and the termination of
this Agreement.
(e) Mitigation. If Lessor or any Participant becomes aware of (i)
any Change of Law which will make it unlawful or impossible for such
Person to fund or maintain its portion of the Outstanding Lease Amount at
the LIBOR Rental Rate or (ii) any Change of
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Law or other event or condition which will obligate Lessee to pay any
amount pursuant to Subparagraph 2.12(c) or Subparagraph 2.12(d), such
Person shall notify Lessee and Agent thereof as promptly as practical. If
any Person has given notice of any such Change of Law or other event or
condition and thereafter becomes aware that such Change of Law or other
event or condition has ceased to exist, such Person shall notify Lessee
and Agent thereof as promptly as practical. Each Person affected by any
Change of Law which makes it unlawful or impossible for such Person to
fund or maintain its portion of the Outstanding Lease Amount at the LIBOR
Rental Rate or to which Lessee is obligated to pay any amount pursuant to
Subparagraph 2.12(c) or Subparagraph 2.12(d) shall use reasonable
commercial efforts (including changing the jurisdiction of its Applicable
Participating Office) to avoid the effect of such Change of Law or to
avoid or materially reduce any amounts which Lessee is obligated to pay
pursuant to Subparagraph 2.12(c) or Subparagraph 2.12(d) if, in the
reasonable opinion of such Person, such efforts would not be
disadvantageous to such Person or contrary to such Person's normal banking
practices.
2.13. Taxes on Payments.
(a) Payments Free of Taxes. All payments made by Lessee under this
Agreement and the other Operative Documents shall be made free and clear
of, and without deduction or withholding for or on account of, any present
or future Indemnified Taxes, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority. If any Indemnified
Taxes are required to be withheld from any amounts payable to any Lessor
Party hereunder or under the other Operative Documents, the amounts so
payable to such Lessor Party shall be increased to the extent necessary to
yield to such Lessor Party (after payment of all Indemnified Taxes) the
Base Rent or any such other amounts payable hereunder at the rates or in
the amounts specified in this Agreement and the other Operative Documents.
Whenever any Indemnified Taxes are payable by Lessee, as promptly as
possible thereafter, Lessee shall send to Agent for its own account or for
the account of Lessor or such Participant, as the case may be, a certified
copy of an original official receipt received by Lessee showing payment
thereof. If Lessee fails to pay any Indemnified Taxes when due to the
appropriate taxing authority or fails to remit to Agent the required
receipts or other required documentary evidence, Lessee shall indemnify
the Lessor Parties for any incremental taxes, interest or penalties that
may become payable by the Lessor Parties as a result of any such failure.
The obligations of Lessee under this Subparagraph 2.13(a) shall survive
the payment and performance of the Lessee Obligations and the termination
of this Agreement.
(b) Withholding Exemption Certificates. On or prior to the Closing
Date or, if such date does not occur within thirty (30) days after the
date of this Agreement, by the end of such 30- day period, Lessor, if it
is not organized under the laws of the United States of America or a state
thereof, and each Participant which is not incorporated under the laws of
the United States of America or a state thereof, shall deliver to Lessee
and Agent two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224 (or successor applicable form), as the case may
be, certifying in each case that Lessor or such Participant, as the case
may be, is entitled to receive payments under this Agreement and the other
Operative Documents without deduction or withholding of any
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United States federal income taxes. Each Person which delivers to Lessee
and Agent a Form 1001 or 4224 pursuant to the immediately preceding
sentence further undertakes to deliver to Lessee and Agent two further
copies of Form 1001 or 4224 (or successor applicable forms), or other
manner of certification or procedure, as the case may be, on or before the
date that any such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form
previously delivered by it to Lessee and Agent, and such extensions or
renewals thereof as may reasonably be requested by Lessee or Agent,
certifying in the case of a Form 1001 or 4224 that such Person is entitled
to receive payments under this Agreement and the other Operative Documents
without deduction or withholding of any United States federal income
taxes, unless in any such cases an event (including without limitation any
change in treaty, law or regulation) has occurred prior to the date on
which any such delivery would otherwise be required which renders all such
forms inapplicable or which would prevent Lessor or a Participant from
duly completing and delivering any such form with respect to it and Lessor
or such Participant advises Lessee and Agent that it is not capable of
receiving payments without any deduction or withholding of United States
federal income tax.
(c) Mitigation. If any Lessor Party claims any additional amounts
to be payable to it pursuant to this Paragraph 2.13, such Lessor Party
shall use reasonable commercial efforts to file any certificate or
document requested in writing by Lessee (including copies of Internal
Revenue Service Form 1001 (or successor forms) reflecting a reduced rate
of withholding) or to change the jurisdiction of its Applicable
Participating Office if the making of such a filing or such change in the
jurisdiction of its Applicable Participating Office would avoid the need
for or materially reduce the amount of any such additional amounts which
may thereafter accrue and if, in the reasonable opinion of a Participant,
in the case of a change in the jurisdiction of its Applicable
Participating Office, such change would not be disadvantageous to such
Person or contrary to such Person's normal banking practices.
(d) Tax Returns. Nothing contained in this Paragraph 2.13 shall
require any Lessor Party to make available any of its tax returns (or any
other information relating to its taxes which it deems to be
confidential).
(e) Tax Savings. In the event an Indemnitee receives a refund (or
similar tax savings) in respect of any Indemnified Tax paid or reimbursed
by Lessee, such Indemnitee shall, within thirty (30) days thereafter,
remit the amount of such refund (or tax savings) to Lessee, provided that
the amount so remitted shall not exceed the lesser of: (i) the amount
received by such Indemnitee as a refund (or tax savings) net of all
reasonable costs and expenses incurred by such Indemnitee in connection
with obtaining and paying such amount; and (ii) the remainder of (A) the
amount of all prior payments by Lessee to such Indemnitee with respect to
Indemnified Taxes, plus any refunded interest, less (B) the amount of all
prior payments by such Indemnitee to Lessee under this Subparagraph
2.13(e); provided that (1) any disallowance or other loss of such refund
(or tax savings) shall be treated as an "Indemnified Tax" without regard
to all exclusions and (2) no such remittance shall be made if any Default
or Event of Default has occurred and is continuing.
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2.14. Funding Loss Indemnification. If Lessee shall (a) pay all or any
Portion of the Outstanding Lease Amount on any day other than the last day of a
Rental Period therefor (whether an optional payment, a mandatory payment or
otherwise) or (b) cancel or otherwise fail to consummate any Advance Request
which has been delivered to Agent (whether as a result of the failure to satisfy
any applicable conditions or otherwise), Lessee shall, upon demand by Lessor or
any Participant, reimburse such Person for and hold such Person harmless from
all costs and losses incurred by such Person as a result of such payment,
cancellation or failure. Lessee understands that such costs and losses may
include, without limitation, losses incurred by Lessor or a Participant as a
result of funding and other contracts entered into by such Person to fund its
portion of the Outstanding Lease Amount. Each Person demanding payment under
this Paragraph 2.14 shall deliver to Lessee, with a copy to Agent, a certificate
setting forth the amount of costs and losses for which demand is made, which
certificate shall set forth in reasonable detail the calculation of the amount
demanded. Such a certificate so delivered to Lessee shall constitute prima facie
evidence of such costs and losses. The obligations of Lessee under this
Paragraph 2.14 shall survive the payment and performance of the Lessee
Obligations and the termination of this Agreement.
2.15. Replacement of Participants. If any Participant shall (a) become a
Defaulting Participant more than two (2) times in a period of twelve (12)
consecutive months, (b) continue as a Defaulting Participant for more than five
(5) Business Days at any time, (c) deliver, pursuant to Subparagraph 2.12(a), a
notice that any LIBOR Rental Rate cannot be adequately and reasonably determined
or that any LIBOR Rental Rate does not adequately and fairly reflect the cost to
such Participant of funding its shares of any Portion and such a notice is not
delivered by all Participants, (d) deliver, pursuant to Subparagraph 2.12(b), a
notice of a Change of Law which does not affect all Participants, or (e) demand
any payment under Subparagraph 2.12(c), 2.12(d) or 2.13(a) for a reason which is
not applicable to all Participants, then Agent may (or upon the written request
of Lessee if no Event of Default has occurred and is continuing, shall) replace
such Participant (the "affected Participant"), or cause such affected
Participant to be replaced, with another financial institution (the "replacement
Participant") satisfying the requirements of an Eligible Assignee under
Subparagraph 7.05(b), by having the affected Participant sell and assign all of
its rights and obligations under this Agreement and the other Operative
Documents to the replacement Participant pursuant to Subparagraph 7.05(b);
provided, however, that if Lessee seeks to exercise such right, it must do so
within sixty (60) days after it first receives notice of the event, condition or
demand giving rise to such right, and no Lessor Party shall have any obligation
to identify or locate a replacement Participant for Lessee. Upon receipt by any
affected Participant of a written notice from Agent stating that Agent is
exercising the replacement right set forth in this Paragraph 2.15, such affected
Participant shall sell and assign all of its rights and obligations under this
Agreement and the other Operative Documents to the replacement Participant
pursuant to an Assignment Agreement and Subparagraph 7.05(b) for a purchase
price equal to the sum of its portion of the Outstanding Lease Amount, the
accrued and unpaid portion of the Base Rent relating to such portion, all
amounts payable under Paragraph 2.14, and its ratable share of all fees to which
it is entitled.
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SECTION 3. CONDITIONS PRECEDENT.
3.01. Initial Acquisition Advances. The obligation of Lessor to make the
Initial Acquisition Advances (and the obligations of the Participants to fund
their respective Proportionate Shares of the Initial Acquisition Advances) is
(are) subject to receipt by Agent, on or prior to the Closing Date, of each item
listed in Schedule 3.01, each in form and substance satisfactory to Lessor,
Agent and each Participant, and with sufficient copies for, Lessor, Agent and
each Participant.
3.02. Tract 4 Acquisition Advance. The obligation of Lessor to make the
Tract 4 Acquisition Advance (and the obligations of the Participants to fund
their respective Proportionate Shares of the Tract 4 Acquisition Advance) is
(are) subject to receipt by Agent, on or prior to the Tract 4 Acquisition Date,
of each item listed in Schedule 3.02, each in form and substance satisfactory to
Lessor, Agent and each Participant, and with sufficient copies for, Lessor,
Agent and each Participant.
3.03. Improvement/Expense Advances. The obligation of Lessor to make each
Improvement/Expense Advance for each Tract of Property (including the first
Improvement/Expense Advance for such Tract of Property) (and the obligations of
the Participants to fund their respective Proportionate Shares of such Advance)
is (are) subject to (i) satisfaction of the conditions set forth in Paragraph
3.01, (ii) receipt by Agent pursuant to Paragraph 2.03 of the Advance Request
for such Advance, appropriately completed and duly executed by Lessee, and (iii)
receipt by Agent of date-down endorsements to Agent's and Lessor's title
insurance policies covering such Tract or binders acceptable to Agent and
Lessor.
3.04. Other Conditions Precedent. The occurrence of each Credit Event
(including the making of each Advance by Lessor and the funding of each Advance
by the Participants) is subject to the further conditions that, on the date such
Credit Event is to occur and after giving effect to such Credit Event, the
following shall be true and correct:
(a) The representations and warranties of Lessee set forth in
Paragraph 4.01 and in the other Operative Documents are true and correct
in all material respects as if made on such date (except for
representations and warranties expressly made as of a specified date,
which shall be true as of such date);
(b) No Default has occurred and is continuing or will result from
such Credit Event; and
(c) All of the Operative Documents are in full force and effect.
The submission by Lessee to Lessor and Agent of each Advance Request and a
Notice of Marketing Option Exercise shall be deemed to be a representation and
warranty by Lessee that each of the statements set forth above in this Paragraph
3.04 is true and correct as of the date of such request and notice.
3.05. Covenant to Deliver. Lessee agrees (not as a condition but as a
covenant) to deliver to Lessor and Agent each item required to be delivered to
Lessor and Agent as a condition to each Advance if such Advance is made. Lessee
expressly agrees that the making of
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any Advance prior to the receipt by Lessor and Agent of any such item shall not
constitute a waiver by Lessor, Agent or any Participant of Lessee's obligation
to deliver such item, unless expressly waived in writing.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
4.01. Lessee's Representations and Warranties. In order to induce the
Lessor Parties to enter into this Agreement and the other Operative Documents to
which they are parties, Lessee hereby represents and warranties to the Lessor
Parties as follows:
(a) Due Incorporation, Qualification, etc. Each of Lessee and
Lessee's Subsidiaries (i) is a corporation duly organized, validly
existing and in good standing under the laws of its state of
incorporation; (ii) has the power and authority to own, lease and operate
its properties and carry on its business as now conducted; and (iii) is
duly qualified, licensed to do business and in good standing as a foreign
corporation in each jurisdiction where the failure to be so qualified or
licensed is reasonably likely to have a Material Adverse Effect.
(b) Authority. The execution, delivery and performance by Lessee
of each Operative Document executed, or to be executed, by Lessee and the
consummation of the transactions contemplated thereby (i) are within the
power of Lessee and (ii) have been duly authorized by all necessary
actions on the part of Lessee.
(c) Enforceability. Each Operative Document executed, or to be
executed, by Lessee has been, or will be, duly executed and delivered by
Lessee and constitutes, or will constitute, a legal, valid and binding
obligation of Lessee, enforceable against Lessee in accordance with its
terms, except as limited by bankruptcy, insolvency or other laws of
general application relating to or affecting the enforcement of creditors'
rights generally and general principles of equity.
(d) Non-Contravention. The execution and delivery by Lessee of the
Operative Documents executed by Lessee and the performance and
consummation of the transactions contemplated thereby do not (i) violate
any Requirement of Law applicable to Lessee; (ii) violate any provision
of, or result in the breach or the acceleration of, or entitle any other
Person to accelerate (whether after the giving of notice or lapse of time
or both), any Contractual Obligation of Lessee, where such violation,
breach or acceleration is reasonable likely to have a Material Adverse
Effect; or (iii) result in the creation or imposition of any Lien (or the
obligation to create or impose any Lien) upon any property, asset or
revenue of Lessee (except such Liens as may be created in favor of Lessor
or Agent pursuant to this Agreement or the other Operative Documents).
(e) Approvals. No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Authority or
other Person (including, without limitation, the shareholders of any
Person) is required in connection with the execution and delivery of the
Operative Documents executed by Lessee and the performance and
consummation by Lessee of the transactions contemplated thereby,
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except (i) those that have been made or obtained and are in full force and
effect and (ii) those which, if not made or obtained, are not reasonably
likely to have a Material Adverse Effect.
(f) No Violation or Default. Neither Lessee nor any of its
Subsidiaries is in violation of or in default with respect to (i) any
Requirement of Law applicable to such Person; (ii) any Contractual
Obligation of such Person (nor is there any waiver in effect which, if not
in effect, would result in such a violation or default), where, in each
case, such violation or default is reasonably likely to have a Material
Adverse Effect. Without limiting the generality of the foregoing, neither
Lessee nor any of its Subsidiaries (A) has violated any Environmental
Laws, (B) has any liability under any Environmental Laws or (C) has
received notice or other communication of an investigation or is under
investigation by any Governmental Authority having authority to enforce
Environmental Laws, where such violation, liability or investigation is
reasonably likely to have a Material Adverse Effect. No Default has
occurred and is continuing.
(g) Litigation. No actions (including, without limitation,
derivative actions), suits, proceedings or investigations are pending or,
to the knowledge of Lessee, threatened against Lessee or any of its
Subsidiaries at law or in equity in any court or before any other
Governmental Authority which (i) is reasonably likely (alone or in the
aggregate) to have a Material Adverse Effect or (ii) seeks to enjoin,
either directly or indirectly, the execution, delivery or performance by
Lessee of the Operative Documents or the transactions contemplated
thereby.
(h) Title; Possession Under Leases. Lessee and its Material
Subsidiaries own and have good and marketable title, or a valid leasehold
interest in, all their respective properties and assets as reflected in
the most recent Financial Statements delivered to Agent (except those
assets and properties disposed of in the ordinary course of business or
otherwise in compliance with this Agreement since the date of such
Financial Statements) and all respective assets and properties acquired by
Lessee and its Material Subsidiaries since such date (except those
disposed of in the ordinary course of business or otherwise in compliance
with this Agreement), except in any case where the failure so to own or to
have such title is not reasonably likely to have a Material Adverse
Effect. Such assets and properties are subject to no Lien, except for
Permitted Liens. Each of Lessee and its Material Subsidiaries has complied
with all material obligations under all material leases to which it is a
party, all such leases are in full force and each of Lessee and its
Material Subsidiaries enjoys peaceful and undisturbed possession under
such leases, except in any case where the failure so to comply, the
failure of such leases to be in full force and effect or the failure to be
in such possession is not reasonably likely to have a Material Adverse
Effect.
(i) Financial Statements. The consolidated Financial Statements of
Lessee which have been delivered to Agent, (i) are in accordance with the
books and records of Lessee and its Subsidiaries, which have been
maintained in accordance with good business practice; (ii) have been
prepared in conformity with GAAP; and (iii) fairly present the financial
conditions and results of operations of Lessee and its Subsidiaries as of
the date thereof and for the period covered thereby. Lessee does not have
any
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Contingent Obligations, liability for taxes or other outstanding
obligations which are material in the aggregate, except as disclosed in
the audited Financial Statements dated June 30, 1997 furnished by Lessee
to Agent prior to the date hereof, or in the Financial Statements
delivered to Agent pursuant to clause (i) or (ii) of Subparagraph 5.01(a)
to the extent the same are required under GAAP to be disclosed therein.
(j) Equity Securities. All outstanding Equity Securities of Lessee
are duly authorized, validly issued, fully paid and non-assessable. All
Equity Securities of Lessee have been offered and sold in compliance with
all federal and state securities laws (excluding any foreign securities
and tax laws related to stock options and ownership to the extent that
non-compliance therewith is not reasonably likely to have a Material
Adverse Effect).
(k) No Agreements to Sell Assets; Etc. As of the Closing Date,
neither Lessee nor any of its Subsidiaries has any legal obligation,
absolute or contingent, to any Person to sell the assets of Lessee or any
of its Subsidiaries (other than sales in the ordinary course of business),
or to effect any merger, consolidation or other reorganization of Lessee
or any of its Subsidiaries or to enter into any agreement with respect
thereto, except for sales or mergers permitted by Subparagraph 5.02(b) or
Subparagraph 5.02(c).
(l) Employee Benefit Plans.
(i) Based on the latest valuation of each Employee Benefit
Plan that either Lessee or any ERISA Affiliate maintains or
contributes to, or has any obligation under (which occurred within
twelve months of the date of this representation), the aggregate
benefit liabilities of such plan within the meaning of ss. 4001 of
ERISA did not exceed the aggregate value of the assets of such plan.
Neither Lessee nor any ERISA Affiliate has any liability with
respect to any post-retirement benefit under any Employee Benefit
Plan which is a welfare plan (as defined in section 3(1) of ERISA),
other than liability for health plan continuation coverage described
in Part 6 of Title I(B) of ERISA, which liability for health plan
contribution coverage is not reasonably likely to have a Material
Adverse Effect.
(ii) Each Employee Benefit Plan complies, in both form and
operation, in all material respects, with its terms, ERISA and the
IRC, and no condition exists or event has occurred with respect to
any such plan which would result in the incurrence by either Lessee
or any ERISA Affiliate of any material liability, fine or penalty.
Each Employee Benefit Plan, related trust agreement, arrangement and
commitment of Lessee or any ERISA Affiliate is legally valid and
binding and in full force and effect. No Employee Benefit Plan is
being audited or investigated by any government agency or is subject
to any pending or threatened claim or suit. Neither Lessee nor any
ERISA Affiliate nor any fiduciary of any Employee Benefit Plan has
engaged in a prohibited transaction under section 406 of ERISA or
section 4975 of the IRC.
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(iii) Neither Lessee nor any ERISA Affiliate contributes to or
has any material contingent obligations to any Multiemployer Plan.
Neither Lessee nor any ERISA Affiliate has incurred any material
liability (including secondary liability) to any Multiemployer Plan
as a result of a complete or partial withdrawal from such
Multiemployer Plan under Section 4201 of ERISA or as a result of a
sale of assets described in Section 4204 of ERISA. Neither Lessee
nor any ERISA Affiliate has been notified that any Multiemployer
Plan is in reorganization or insolvent under and within the meaning
of Section 4241 or Section 4245 of ERISA or that any Multiemployer
Plan intends to terminate or has been terminated under Section 4041A
of ERISA.
(m) Other Regulations. Lessee is not subject to regulation under
the Investment Company Act of 1940, the Public Utility Holding Company Act
of 1935, the Federal Power Act, the Interstate Commerce Act, any state
public utilities code or to any other Governmental Rule limiting its
ability to incur indebtedness.
(n) Patent and Other Rights. Except as set forth in Lessee's 10-Q
report and 10-K report delivered to Agent as items C(3) and C(4) of
Schedule 3.01, Lessee and its Subsidiaries own, license or otherwise have
the right to use under validly existing agreements (or can obtain under
agreements not reasonably likely to have a Material Adverse Effect), all
patents, licenses, trademarks, trade names, trade secrets, service marks,
copyrights and all rights with respect thereto, which are required to
conduct their businesses as now conducted, to the extent the failure to
own, license or otherwise have the right to use such rights is not
reasonably likely to have a Material Adverse Effect.
(o) Governmental Charges. Lessee and its Subsidiaries have filed
or caused to be filed all tax returns which are required to be filed by
them, except for any returns the non-filing of which are not reasonably
likely to have a Material Adverse Effect. Lessee and its Subsidiaries have
paid, or made provision for the payment of, all taxes and other
Governmental Charges which have or may have become due pursuant to said
returns or otherwise and all other indebtedness, except such Governmental
Charges or indebtedness, if any, which are being (or promptly will be)
contested in good faith and as to which adequate reserves (determined in
accordance with GAAP) have been provided or which are not reasonably
likely to have a Material Adverse Effect if unpaid.
(p) Margin Stock. Lessee owns no Margin Stock which, in the
aggregate, would constitute a substantial part of the assets of Lessee,
and no proceeds of any Advance will be used to purchase or carry, directly
or indirectly, any Margin Stock or to extend credit, directly or
indirectly, to any Person for the purpose of purchasing or carrying any
Margin Stock.
(q) Subsidiaries, etc. Set forth in Schedule 4.01(q) (as
supplemented by Lessee from time to time in a written notice to Agent) is
a complete list of all of Lessee's Subsidiaries, the jurisdiction of
incorporation of each and the percentage of voting shares owned directly
or indirectly by Lessee.
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(r) Catastrophic Events. Neither Lessee nor any of its
Subsidiaries and none of their properties is or has been affected by any
fire, explosion, accident, strike, lockout or other labor dispute,
drought, storm, hail, earthquake, embargo, act of God or other casualty
that is reasonably likely to have a Material Adverse Effect. There are no
disputes presently subject to grievance procedure, arbitration or
litigation under any of the collective bargaining agreements, employment
contracts or employee welfare or incentive plans to which Lessee or any of
its Subsidiaries is a party, and there are no strikes, lockouts, work
stoppages or slowdowns, or, to the best knowledge of Lessee,
jurisdictional disputes or organizing activities occurring or threatened
which alone or in the aggregate are reasonably likely to have a Material
Adverse Effect.
(s) The Property. The representations and warranties relating to
each Tract set forth in Parts 1 - 5 of Schedule 4.01(s) are true and
correct. The following representations and warranties apply to all Tracts
of the Property on the Acquisition Date thereof:
(i) All of the Property complies and will comply at all
times (whether before commencement of any construction, during any
construction or after completion of construction of any New
Improvements) with all applicable Governmental Rules (including
Title III of the Americans with Disabilities Act; Environmental
Laws; and zoning, land use, building, planning and fire laws, rules,
regulations and codes) and Insurance Requirements, except for
violations which are not reasonably likely to have a Material
Adverse Effect. No Hazardous Materials have been used, generated,
manufactured, stored, treated, disposed of, transported or present
on or released or discharged from the Property in any manner that is
reasonably likely to have a Material Adverse Effect. There are no
claims or actions which are reasonably likely to have a Material
Adverse Effect pending or, to Lessee's knowledge, threatened against
any of the Property by any Governmental Authority or any other
Person relating to Hazardous Materials or pursuant to any
Environmental Laws.
(ii) None of the Improvements (whether before commencement of
any construction, during any construction or after completion of
construction of any New Improvements) encroach or will at any time
encroach in any manner onto any adjoining land, except as permitted
by express written and recorded encroachment agreements approved by
Agent or as affirmatively insured against by appropriate title
insurance.
(iii) All licenses, approvals, authorizations, consents,
permits, easements and rights-of-way required for the use of any of
the Property have been obtained or, if not yet required, will be
obtained before required.
(iv) After the purchase of each Tract of Property on the
Acquisition Date therefor or, in the case of Property subject to the
Phase II Lease Agreements after the termination thereof, Lessor will
have good and valid fee simple title to such Property (or, in the
case of the Tract 3 Land, a good and valid leasehold interest in
such Land), subject to no Liens except for Permitted Property Liens.
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(t) Chief Executive Office. Lessee's chief executive office is
located at 160 Rio Robles Drive, San Jose, California 95134.
(u) Accuracy of Information Furnished. None of the Operative
Documents and none of the other certificates, statements or information
furnished to Lessor, Agent or any Participant by Lessee or any of its
Subsidiaries in connection with the Operative Documents or the
transactions contemplated thereby, when taken together with all
registration statements and reports filed by Lessee with any securities
exchange or the Securities and Exchange Commission and furnished to Agent
pursuant to the Operative Documents, contains or will contain any untrue
statement of a material fact or omits or will omit to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Lessee shall be deemed to have reaffirmed, for the benefit of the Lessor
Parties, each representation and warranty contained in this Paragraph 4.01 on
and as of the date of each Credit Event (except for representations and
warranties expressly made as of a specified date, which shall be true as of such
date).
4.02. Lessor's Representations and Warranties. In order to induce Lessee,
Agent and the Participants to enter into this Agreement and the other Operative
Documents to which they are parties, Lessor hereby represents and warranties to
Lessee, Agent and the Participants as follows:
(a) Due Incorporation, Qualification, etc. Lessor (i) is a
corporation duly organized, validly existing and in good standing under
the laws of its state of incorporation and (ii) has the power and
authority to own, lease and operate its properties and carry on its
business as now conducted. Lessor is a Wholly-Owned Subsidiary of ABN
AMRO.
(b) Authority. The execution, delivery and performance by Lessor
of each Operative Document executed, or to be executed, by Lessor and the
consummation of the transactions contemplated thereby (i) are within the
power of Lessor and (ii) have been duly authorized by all necessary
actions on the part of Lessor.
(c) Enforceability. Each Operative Document executed, or to be
executed, by Lessor has been, or will be, duly executed and delivered by
Lessor and constitutes, or will constitute, a legal, valid and binding
obligation of Lessor, enforceable against Lessor in accordance with its
terms, except as limited by bankruptcy, insolvency or other laws of
general application relating to or affecting the enforcement of creditors'
rights generally and general principles of equity.
(d) Non-Contravention. The execution and delivery by Lessor of the
Operative Documents executed by Lessor and the performance and
consummation of the transactions contemplated thereby do not (i) violate
any Requirement of Law applicable to Lessor; (ii) violate any provision
of, or result in the breach or the acceleration of, or entitle any other
Person to accelerate (whether after the giving of notice or lapse of time
or both), any Contractual Obligation of Lessor; or (iii) result in the
creation or imposition
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of any Lien (or the obligation to create or impose any Lien) upon any
property, asset or revenue of Lessor (except such Liens as may be created
in favor of Agent pursuant to this Agreement or the other Operative
Documents).
(e) Approvals. No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Authority or
other Person (including, without limitation, the shareholders of any
Person) is required in connection with the execution and delivery of the
Operative Documents executed by Lessor and the performance and
consummation of the transactions contemplated thereby, except such as have
been made or obtained and are in full force and effect.
(f) Litigation. No actions (including, without limitation,
derivative actions), suits, proceedings or investigations are pending or,
to the knowledge of Lessor, threatened against Lessor at law or in equity
in any court or before any other Governmental Authority which (i) is
reasonably likely (alone or in the aggregate) to materially and adversely
affect the ability of Lessor to perform its obligations under the
Operative Documents to which it is a party or (ii) seeks to enjoin, either
directly or indirectly, the execution, delivery or performance by Lessor
of the Operative Documents or the transactions contemplated thereby.
(g) Other Regulations. Lessor is not subject to regulation under
the Investment Company Act of 1940, the Public Utility Holding Company Act
of 1935, the Federal Power Act, the Interstate Commerce Act, any state
public utilities code or to any other Governmental Rule limiting its
ability to incur indebtedness.
(h) Chief Executive Office. Lessor's chief executive office is
located at 180 Interstate Parkway North, Atlanta, Georgia 30339.
4.03. Participants' Representations and Warranties. In order to induce
Lessee, Lessor and Agent to enter into this Agreement and the other Operative
Documents to which they are parties, each Participant hereby represents and
warranties to Lessee, Lessor and Agent as follows:
(a) Due Organization, Qualification, etc. Such Participant (i) is
a legal entity duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization and (ii) has the power and
authority to own, lease and operate its properties and carry on its
business as now conducted.
(b) Authority. The execution, delivery and performance by such
Participant of each Operative Document executed, or to be executed, by
such Participant and the consummation of the transactions contemplated
thereby (i) are within the power of such Participant and (ii) have been
duly authorized by all necessary actions on the part of such Participant.
(c) Enforceability. Each Operative Document executed, or to be
executed, by such Participant has been, or will be, duly executed and
delivered by such Participant and constitutes, or will constitute, a
legal, valid and binding obligation of such Participant, enforceable
against such Participant in accordance with its terms, except as limited
by
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bankruptcy, insolvency or other laws of general application relating to or
affecting the enforcement of creditors' rights generally and general
principles of equity.
(d) Non-Contravention. The execution and delivery by such
Participant of the Operative Documents executed by such Participant and
the performance and consummation of the transactions contemplated thereby
do not (i) violate any Requirement of Law applicable to such Participant;
(ii) violate any provision of, or result in the breach or the acceleration
of, or entitle any other Person to accelerate (whether after the giving of
notice or lapse of time or both), any Contractual Obligation of such
Participant; or (iii) result in the creation or imposition of any Lien (or
the obligation to create or impose any Lien) upon any property, asset or
revenue of such Participant (except such Liens as may be created in favor
of Lessor or Agent pursuant to this Agreement or the other Operative
Documents).
(e) Approvals. No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Authority or
other Person (including, without limitation, the shareholders of any
Person) is required in connection with the execution and delivery of the
Operative Documents executed by such Participant and the performance and
consummation of the transactions contemplated thereby, except such as have
been made or obtained and are in full force and effect.
(f) Litigation. No actions (including, without limitation,
derivative actions), suits, proceedings or investigations are pending or,
to the knowledge of such Participant, threatened against such Participant
at law or in equity in any court or before any other Governmental
Authority which (i) is reasonably likely (alone or in the aggregate) to
materially and adversely affect the ability of such Participant to perform
its obligations under the Operative Documents to which it is a party or
(ii) seeks to enjoin, either directly or indirectly, the execution,
delivery or performance by such Participant of the Operative Documents or
the transactions contemplated thereby.
(g) Own Account. Such Participant is acquiring its participation
interest hereunder for its own account for investment and not with a view
to any distribution (as such term is used in Section 2(11) of the
Securities Act of 1933) thereof, and, if in the future it should decide to
dispose of its participation interest, it understands that it may do so
only in compliance with the Securities Act of 1933 and the rules and
regulations of the Securities and Exchange Commission thereunder and any
applicable state securities laws.
(h) Capital, Etc. Such Participant is a financial institution with
combined capital and surplus of not less than $500,000,000.
SECTION 5. COVENANTS.
5.01. Lessee's Affirmative Covenants. Until the termination of this
Agreement and the satisfaction in full by Lessee of all Lessee Obligations
(other than inchoate indemnity obligations), Lessee will comply, and will cause
compliance, with the following affirmative covenants, unless Lessor and Required
Participants shall otherwise consent in writing:
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(a) Financial Statements, Reports, etc. Lessee shall furnish to
Agent, with sufficient copies for Lessor and each Participant (and Agent
shall promptly furnish to Lessor and each Participant), the following,
each in such form and such detail as Agent, Lessor or the Required
Participants shall reasonably request:
(i) As soon as available and in no event later than sixty
(60) days after the last day of each fiscal quarter of Lessee (other
than the last quarter in any fiscal year), a copy of the Financial
Statements of Lessee and its Subsidiaries (prepared on a
consolidated basis) for such quarter and for the fiscal year to
date, certified by the president or chief financial officer of
Lessee to present fairly the financial condition, results of
operations and other information reflected therein and to have been
prepared in accordance with GAAP (subject to normal year-end audit
adjustments);
(ii) As soon as available and in no event later than one
hundred and ten (110) days after the close of each fiscal year of
Lessee, (A) copies of the audited Financial Statements of Lessee and
its Subsidiaries (prepared on a consolidated basis) for such year,
audited by Price Waterhouse LLP or by other independent certified
public accountants of recognized national standing acceptable to
Agent, and (B) copies of the opinions delivered by such accountants
in connection with all such Financial Statements;
(iii) Contemporaneously with the quarterly and year-end
Financial Statements required by the foregoing clauses (i) and (ii),
a compliance certificate of the President, Chief Financial Officer,
Chief Executive Officer or the Vice-President of Finance of Lessee
which (A) states that no Default has occurred and is continuing, or,
if any such Default has occurred and is continuing, a statement as
to the nature thereof and what action Lessee proposes to take with
respect thereto and (B) sets forth, for the quarter or year covered
by such Financial Statements or as of the last day of such quarter
or year (as the case may be), the calculation of the financial
ratios and tests provided in Paragraph 5.03;
(iv) As soon as available and in no event later than sixty
(60) days after the last day of each fiscal quarter of Lessee, a
certificate of the President, Chief Financial Officer, Chief
Executive Officer or the Vice-President of Finance of Lessee which
sets forth the calculation of the Senior Funded Indebtedness/Capital
Ratio for the consecutive four-quarter period ending on such day;
(v) As soon as possible and in no event later than ten (10)
Business Days after any Executive Officer of Lessee knows of the
occurrence or existence of (A) any Reportable Event under any
Employee Benefit Plan or Multiemployer Plan; (B) any actual or
threatened litigation, suits, claims or disputes against Lessee or
any of its Subsidiaries involving potential monetary damages payable
by Lessee or its Subsidiaries of $25,000,000 or more; (C) any other
event or condition which is reasonably likely to have a Material
Adverse Effect; or (D) any Default; the statement of the President,
Chief Financial Officer, Chief Executive Officer or the
Vice-President of Finance of Lessee setting forth details of such
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event, condition or Default and the action which Lessee proposes to
take with respect thereto;
(vi) As soon as available and in no event later than ten (10)
Business Days after they are sent, made available or filed, either
(A) copies of all registration statements and reports filed by
Lessee or any of its Subsidiaries with any securities exchange or
the Securities and Exchange Commission (including, without
limitation, all 10-Q, 10-K and 8-K reports, but without exhibits and
excluding filings on Form S-8) or (B) e-mail notice (with a copy to
Lessor and each Participant) of the website from which copies of
such registration statements and reports may be downloaded; and
(vii) Such other information relating to the operations or
condition (financial or otherwise) of Lessee or its Subsidiaries,
and compliance by Lessee with the terms of this Agreement and the
other Operative Documents as Lessor or Agent or any Participant may
from time to time reasonably request.
For the purposes of this Subparagraph 5.01(a), (1) the timely delivery by
Lessee to Agent pursuant to clause (vi) of a copy of the Form 10-Q report
filed by Lessee with the Securities and Exchange Commission for any
quarter shall satisfy the requirements of clause (i) for such quarter and
(2) the timely delivery by Lessee to Agent pursuant to clause (vi) of a
copy of the Form 10-K report filed by Lessee with the Securities and
Exchange Commission for any year shall satisfy the requirements of clause
(ii)(A) for such year, provided that such reports contain the same
information as required by clause (i) and clause (ii)(A), respectively.
(b) Books and Records. Lessee shall at all times keep proper books
of record and account in which full, true and correct entries will be made
of their transactions in accordance with GAAP.
(c) Inspections. Lessee and its Subsidiaries shall permit any
Person designated by any Participant, upon reasonable notice and during
normal business hours, to visit and inspect any of the properties and
offices of Lessee and its Subsidiaries, to examine the books and records
of Lessee and its Subsidiaries and make copies thereof and to discuss the
affairs, finances and business of Lessee and its Subsidiaries with, and to
be advised as to the same by, Lessee's Chief Financial Officer or
Vice-President of Finance, all at such times and intervals as any
Participant may reasonably request.
(d) Insurance. In addition to the insurance requirements set forth
in the Lease Agreement with respect to the Property, Lessee and its
Material Subsidiaries shall:
(i) Carry and maintain insurance of the types and in the
amounts customarily carried from time to time during the term of
this Agreement by others engaged in substantially the same business
as such Person and operating in the same geographic area as such
Person, including, but not limited to, fire, public liability,
property damage and worker's compensation;
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(ii) Carry and maintain each policy for such insurance with
financially sound insurers; provided, however, that Lessee may, if
no Event of Default has occurred and is continuing, self-insure; and
(iii) Deliver to Agent from time to time (but not more than
once per year if no Event of Default has occurred and is
continuing), as Agent may request, schedules setting forth all
insurance then in effect.
(e) Governmental Charges and Other Indebtedness. Lessee and its
Subsidiaries shall promptly pay and discharge when due all taxes and other
Governmental Charges prior to the date upon which penalties accrue
thereon, except (i) such taxes and Governmental Charges as may in good
faith be contested or disputed, or for which arrangements for deferred
payment have been made, provided that in each such case appropriate
reserves as required by GAAP are maintained, and (ii) where the failure to
so pay or discharge is not reasonably likely to have a Material Adverse
Effect.
(f) Use of Proceeds. Lessee shall not use any part of the proceeds
of any Advance, directly or indirectly, for the purpose of purchasing or
carrying any Margin Stock or for the purpose of purchasing or carrying or
trading in any securities under such circumstances as to involve Lessee or
any Lessor Party in a violation of Regulations G, T, U or X issued by the
Federal Reserve Board.
(g) General Business Operations. Each of Lessee and its Material
Subsidiaries shall, except as otherwise permitted by Subparagraph 5.02(c),
preserve and maintain its corporate existence and all of its rights,
privileges and franchises reasonably necessary to the conduct of its
business, where the failure so to preserve and maintain is reasonably
likely to have a Material Adverse Effect. Each of Lessee and its
Subsidiaries shall (i) conduct its business activities in compliance with
all Requirements of Law and Contractual Obligations applicable to such
Person, the violation of which is reasonably likely to have a Material
Adverse Effect and (ii) keep all property useful and necessary in its
business in good working order and condition, ordinary wear and tear
excepted, where the failure so to keep is reasonably likely to have a
Material Adverse Effect. Lessee shall maintain its chief executive office
in the United States and shall not relocate its chief executive office
outside of California without prior written notice to Agent.
5.02. Lessee's Negative Covenants. Until the termination of this Agreement
and the satisfaction in full by Lessee of all Lessee Obligations (other than
inchoate indemnity obligations), Lessee will comply, and will cause compliance,
with the following negative covenants, unless Lessor and Required Participants
shall otherwise consent in writing:
(a) Liens. Neither Lessee nor any of its Material Subsidiaries
shall create, incur, assume or permit to exist any Lien on or with respect
to any of its assets or property of any character, whether now owned or
hereafter acquired, except for the following ("Permitted Liens"):
(i) Liens in favor of Lessor, Agent or any Participant
securing the Lessee Obligations;
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(ii) Liens existing on the date of this Agreement;
(iii) Liens for taxes or other Governmental Charges not at the
time delinquent or thereafter payable without penalty or being
contested in good faith, provided that adequate reserves for the
payment thereof as required by GAAP have been established;
(iv) Liens of carriers, warehousemen, mechanics, materialmen,
vendors, and landlords and other similar Liens imposed by law
incurred in the ordinary course of business for sums not overdue for
more than ninety (90) days or being contested in good faith,
provided that adequate reserves for the payment thereof as required
by GAAP have been established;
(v) Deposits under workers' compensation, unemployment
insurance and social security laws or to secure the performance of
bids, tenders, contracts (other than for the repayment of borrowed
money) or leases, or to secure statutory obligations of surety or
appeal bonds or to secure indemnity, performance or other similar
bonds in the ordinary course of business;
(vi) Zoning restrictions, easements, rights-of-way, title
irregularities and other similar encumbrances, which alone or in the
aggregate are not substantial in amount and do not materially
detract from the value of the property subject thereto or interfere
with the ordinary conduct of the business of Lessee and its
Subsidiaries, taken as a whole;
(vii) Banker's Liens and similar Liens (including set-off
rights) in respect of bank deposits or securities accounts
maintained in the ordinary course of business;
(viii) Liens securing purchase money Indebtedness and rights
of vendors or lessors under conditional sale agreements, Capital
Leases or other title retention agreements, provided that, in each
case, (A) such Lien or right covers only the property, the
acquisition of which was financed by such Indebtedness, together
with all accessions thereto, substitutions and replacements therefor
and the proceeds (including insurance) thereof (B) such Indebtedness
was incurred at the time of or within one hundred and eighty (180)
days after the acquisition by Lessee or one of its Subsidiaries of
such property, (C) such Indebtedness does not exceed the purchase
price of such property, together with reasonable installation costs,
taxes and other similar expenses related to such property, and (D)
such Lien or right extends only to such Indebtedness;
(ix) Liens on the property or assets of any Subsidiary of
Lessee in favor of Lessee or any other Subsidiary of Lessee;
(x) Liens on accounts receivable sold pursuant to clause
(vii) of Subparagraph 5.02(b);
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(xi) Liens incurred in connection with the extension, renewal
or refinancing of the Indebtedness secured by the Liens described in
clause (ii) or clause (viii) above, provided that any extension,
renewal or replacement Lien (A) is limited to the property covered
by the existing Lien, together with all accessions thereto,
substitutions and replacements therefor and the proceeds (including
insurance), and (B) secures Indebtedness which is no greater in
amount and has material terms no less favorable to Lessor and the
Participants than the Indebtedness secured by the existing Lien;
(xii) Permitted Property Liens in the Property;
(xiii) Liens on property of a Person existing at the time such
Person or such Person's parent corporation becomes a Subsidiary of
Lessee or any subsidiary of Lessee; provided that such Liens were in
existence prior to the contemplation of such transaction and do not
extend to any assets other than those of such Person:
(xiv) Liens on property existing at the time of acquisition
thereof by Lessee or any Subsidiary of the Lessee, provided that
such Liens were in existence prior to the contemplation of such
acquisition and extend only to the property so acquired;
(xv) Liens in favor of customs and revenue authorities to
secure payment of customs duties in connection with the importation
of goods in the ordinary course of business and other similar Liens
arising in the ordinary course of business;
(xvi) Leases or subleases granted to third Persons not
interfering with the ordinary course of business of Lessee or its
Subsidiaries;
(xvii) Any attachment or judgement Lien not constituting an
Event of Default under Subparagraph 5.01(h) of the Lease Agreement;
(xviii) Liens in favor of a trustee under any indenture
securing amounts due to the trustee in connection with its services
under such indenture;
(xix) Liens on proceeds of insurance in favor of insurance
companies securing the payment of financed premiums;
(xx) Liens under licensing agreements for use of intellectual
property entered into the ordinary course of business; and
(xxi) Liens on leases and other chattel paper transferred
pursuant to clause (viii) of Subparagraph 5.02(b);
(xxii) Other Liens on the property of Lessee and its
Subsidiaries, provided that the aggregate principal amount of all
Indebtedness secured by such
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other Liens does not exceed at any time twenty percent (20%) of the
consolidated net worth of Lessee and its Subsidiaries at such time;
Provided, however, that the foregoing exceptions shall not be construed to
permit any Liens, except for Permitted Property Liens, on any of the
Property
(b) Asset Dispositions. Neither Lessee nor any of its Material
Subsidiaries shall sell, lease, transfer or otherwise dispose of (each a
"transfer") any of its assets or property, whether now owned or hereafter
acquired, except for the following:
(i) Transfers of inventory by Lessee and its Subsidiaries in
the ordinary course of their businesses;
(ii) Transfers of surplus, damaged, worn or obsolete
equipment or inventory;
(iii) Transfers, in whole or in part, of Investments permitted
by Subparagraph 5.02(d), provided that (A) such transfers are for
not less than fair market value (except for transfers of assets
acquired in an acquisition transaction) and (B) no Default has
occurred and is continuing at the time of such transfer or will
occur after giving effect to such transfer;
(iv) Transfers of defaulted receivables to a collection
agency in the ordinary course of business;
(v) Licenses by Lessee or its Subsidiaries of its patents,
copyrights, trademarks, trade names and service marks in the
ordinary course of its business provided that, in each case (except
in the case of licenses between Lessee and a Subsidiary or between
one Subsidiary and another Subsidiary), the terms of the transaction
are terms which then would prevail in the market for similar
transactions between unaffiliated parties dealing at arm's length;
(vi) Transfers of assets and property by Lessee to any of
Lessee's Subsidiaries or by any of Lessee's Subsidiaries to Lessee
or any of its other Subsidiaries;
(vii) Sales of accounts receivable to financial institutions
in financing transactions, provided that (A) each such sale is (1)
for not less than the fair market value of the receivables sold less
a discount not exceeding twenty-five percent (25%) and (2) directly
or indirectly for cash and (B) the aggregate amount of all such
accounts receivable so sold and outstanding at any time shall not
exceed fifteen percent (15%) of the consolidated net worth of Lessee
and its Subsidiaries at such time;
(viii) Transfers of leases or other chattel paper to financial
institutions in financing transactions or in connection with the
securitization thereof, provided that no Default has occurred and is
continuing at the time of such transfer or will occur after giving
effect to such transfer; and
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(ix) Other transfers of assets and property for not less than
fair market value, provided that the aggregate book value of all
such assets and property so sold, leased, transferred or otherwise
disposed of in any consecutive four-quarter period does not exceed
twenty percent (20%) of the consolidated total assets of Lessee and
its Subsidiaries on the last day immediately preceding such
four-quarter period.
Provided, however, that the foregoing transfers shall not be construed to
permit any transfers of the Property, except for transfers permitted by
the Lease Agreement.
(c) Mergers, Acquisitions, Etc. Neither Lessee nor any of its
Material Subsidiaries shall consolidate with or merge into any other
Person or permit any other Person to merge into it, acquire any Person as
a new Subsidiary or acquire all or substantially all of the assets of any
other Person, except for the following:
(i) Any Wholly-Owned Subsidiary of Lessee may merge or
consolidate with any other Wholly-Owned Subsidiary of Lessee or with
Lessee, provided that, in the case of any merger or consolidation
involving Lessee, Lessee is the surviving corporation; and
(ii) Lessee or any Wholly-Owned Subsidiary of Lessee may (A)
acquire as a direct Wholly-Owned Subsidiary any indirect
Wholly-Owned Subsidiary or (B) acquire all or substantially all of
the assets of any Wholly-Owned Subsidiary of Lessee; and
(iii) Lessee or any of its Subsidiaries may merge or
consolidate with any other corporation, acquire any Person as a new
Subsidiary or acquire all or substantially all of the assets of any
other Person, provided that:
(A) In the case of any merger or consolidation
involving Lessee, Lessee is the surviving corporation; and
(B) No Default has occurred and is continuing at the
time of such merger, consolidation or acquisition or will
occur after giving effect to such merger, consolidation or
acquisition.
(d) Investments. Neither Lessee nor any of its Material
Subsidiaries shall make any Investment except for the following:
(i) Investments of Lessee and its Subsidiaries permitted by
the investment policy of Lessee approved by its Board of Directors
or in Cash Equivalents
(ii) Investments arising in connection with transactions
permitted by Subparagraph 5.02(c);
(iii) Investments of Lessee and its Subsidiaries in
Subsidiaries;
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(iv) Investments existing on the date of this Agreement;
(v) Investments consisting of the endorsement of negotiable
instruments for deposit or collection;
(vi) Investments in or to Lessee and Investments in or to
Subsidiaries and guarantees or other credit support of the
obligations of Lessee or of its Subsidiaries;
(vii) Investments consisting of loans to employees (including
relocation loans) in the ordinary course of business;
(viii) Investments accepted in connection with transfers
permitted under Subparagraph 5.02(b);
(ix) Investments received in connection with the bankruptcy
or reorganization of customers or suppliers and in settlement of
delinquent obligations of, and other disputes with, customers or
suppliers arising in the ordinary course of business;
(x) Investments pursuant to or arising under currency,
commodity or interest rate hedging arrangements entered into in the
ordinary course of business for the purpose of directly mitigating
risks associated with currency or interest rate changes or commodity
prices;
(xi) Investments consisting of notes receivable of, or
prepaid royalties and other credit extensions (including equipment
leases) to, customers and suppliers in the ordinary course of
business;
(xii) Investments permitted under Subparagraph 5.02(c);
(xiii) Investments of Lessee and its Subsidiaries in joint
ventures, partnerships and the securities of companies in related
businesses on commercially reasonable terms; and
(xiv) Other Investments, provided that the aggregate book
value of such other Investments does not exceed at any time
twenty-five percent (25%) of the consolidated total assets of Lessee
and its Subsidiaries at such time.
(e) Change in Business. Neither Lessee nor any of its Material
Subsidiaries shall engage, either directly or indirectly through
Affiliates, in any material line of business other than the semiconductor
capital equipment business, the inspection and yield management business
and other businesses incidental or reasonably related thereto.
(f) ERISA. Neither Lessee nor any ERISA Affiliate shall (i) adopt
or institute any Employee Benefit Plan that is an employee pension benefit
plan within the meaning of Section 3(2) of ERISA, (ii) take any action
which will result in the partial or complete withdrawal, within the
meanings of sections 4203 and 4205 of ERISA, from a
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Multiemployer Plan, (iii) engage or permit any Person to engage in any
transaction prohibited by section 406 of ERISA or section 4975 of the IRC
involving any Employee Benefit Plan or Multiemployer Plan which would
subject either Lessee or any ERISA Affiliate to any tax, penalty or other
liability including a liability to indemnify, (iv) incur or allow to exist
any accumulated funding deficiency (within the meaning of section 412 of
the IRC or section 302 of ERISA), (v) fail to make full payment when due
of all amounts due as contributions to any Employee Benefit Plan or
Multiemployer Plan, (vi) fail to comply with the requirements of section
4980B of the IRC or Part 6 of Title I(B) of ERISA, or (vii) adopt any
amendment to any Employee Benefit Plan which would require the posting of
security pursuant to section 401(a)(29) of the IRC, where singly or
cumulatively, the above would have a Material Adverse Effect.
(g) Accounting Changes. Lessee shall not change (i) its fiscal
year (currently July 1 through June 30) or (ii) its accounting practices
except as permitted by GAAP.
5.03. Lessee's Financial Covenants. Until the termination of this
Agreement and the satisfaction in full by Lessee of all Lessee Obligations
(other than inchoate indemnity obligations), Lessee will comply, and will cause
compliance, with the following financial covenants, unless Lessor and Required
Participants shall otherwise consent in writing:
(a) Quick Ratio. Lessee shall not permit its Quick Ratio to be
less than 1.15 to 1.00 on the last day of any fiscal quarter.
(b) Liabilities/Tangible Net Worth Ratio. Lessee shall not permit
its Liabilities/Tangible Net Worth Ratio to be greater than 0.85 to 1.00
on the last day of any fiscal quarter.
(c) Debt Service Coverage Ratio. Lessee shall not permit its Debt
Service Coverage Ratio for any consecutive four fiscal quarter period to
be less than 3.50 to 1.00.
(d) Tangible Net Worth. Lessee shall not permit its Tangible Net
Worth on the last day of any fiscal quarter (such date to be referred to
herein as a "determination date") which occurs after June 30, 1997 (such
date to be referred to herein as the "base date") to be less than the sum
on such determination date of the following:
(i) Eighty-five percent (85%) of the Tangible Net Worth of
Lessee and its Subsidiaries on the base date;
plus
(ii) Fifty percent (50%) of the sum of Lessee's consolidated
quarterly net income (ignoring any quarterly losses) for each fiscal
quarter after the base date through and including the fiscal quarter
ending on the determination date;
plus
(iii) One hundred percent (100%) of the Net Proceeds of all
Equity Securities issued by Lessee and its Subsidiaries (to Persons
other than Lessee or
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its Subsidiaries and net of repurchases of Equity Securities related
solely to Lessee's stock option and incentive plans) during the
period commencing on the base date and ending on the determination
date;
plus
(iv) One hundred percent (100%) of the principal amount of
all debt securities of Lessee and its Subsidiaries converted into
Equity Securities of Lessee and its Subsidiaries during the period
commencing on the base date and ending on the determination date;
minus
(v) One hundred percent (100%) of all non-recurring charges
taken by Lessee and its Subsidiaries in connection with the
acquisition of in-process technology during the period commencing on
the base date and ending on the determination date.
5.04. Lessor's Covenants. Until the termination of this Agreement and the
satisfaction in full by Lessor of all Lessor Obligations (other than inchoate
indemnity obligations), Lessor will comply, and will cause compliance, with the
following covenants, unless Lessee and Required Participants shall otherwise
consent in writing:
(a) Use of Proceeds. Lessor shall use the proceeds of all amounts
delivered to Lessor by Participants pursuant to Subparagraph 2.05(a)
solely to fund Advances.
(b) Lessor Liens. Lessor shall not create, incur, assume or permit
to exist any Lessor Lien (other than any Lien granted to Agent or any
Participant pursuant to the Operative Documents to secure the Lessor
Obligations) and shall promptly discharge, at its sole cost and expense,
any Lessor Lien on the Property (other than any Liens granted to Agent or
any Participant pursuant to the Operative Documents to secure the Lessor
Obligations); provided, however, that Lessor shall not be required so to
discharge any such Lessor Lien if (i) the same is being (or promptly will
be) contested in good faith by appropriate proceedings diligently
prosecuted and there is no immediate risk of foreclosure upon any of the
Property, and (ii) any such contest is completed and all Lessor Liens are
discharged on or prior to the Expiration Date.
(c) Property Disposition. Lessor shall not sell, lease, transfer
or otherwise dispose of its right, title and interest in the Property and
the Operative Documents except as provided in Subparagraph 2.11(b) or
Subparagraph 7.05(d), as provided in the Purchase Agreement, or after
retaining the Property following the Expiration Date.
(d) Chief Executive Office. Lessor shall not change its chief
executive office without giving Agent prompt written notice.
5.05. Participants' Covenants. Each Participant covenants that it will not
fund its portion of any Advance with the assets of any "employee benefit plan"
(as defined in Section
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3(3) of ERISA) which is subject to Title I of ERISA or any "plan" (as defined in
Section 4975(e)(1) of the IRC.
SECTION 6. LESSOR, AGENT AND THEIR RELATIONS WITH PARTICIPANTS.
6.01. Appointment of Agent. Each Participant hereby appoints and
authorizes Agent to act as its agent hereunder and under the other Operative
Documents with such powers as are expressly delegated to Agent by the terms of
this Agreement and the other Operative Documents, together with such other
powers as are reasonably incidental thereto. Lessor is not an agent for the
Participants or Agent, and neither this Agreement nor any other Operative
Document shall be construed to constitute or evidence a partnership among the
Lessor Parties or otherwise to impose upon Lessor or Agent any fiduciary duty.
6.02. Powers and Immunities. Neither Lessor nor Agent shall have any
duties or responsibilities except those expressly set forth in this Agreement or
in any other Operative Document, be a trustee for any Participant or have any
fiduciary duty to any Participant. Notwithstanding anything to the contrary
contained herein, neither Lessor nor Agent shall be required to take any action
which is contrary to this Agreement or any other Operative Document or any
applicable Governmental Rule. Neither Lessor nor Agent nor any Participant shall
be responsible to any Participant for any recitals, statements, representations
or warranties made by Lessee or any of its Subsidiaries contained in this
Agreement or in any other Operative Document, for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Operative Document or for any failure by Lessee or any of its
Subsidiaries to perform their respective obligations hereunder or thereunder.
Lessor and Agent may employ agents and attorneys-in-fact and shall not be
responsible to any Participant for the negligence or misconduct of any such
agents or attorneys-in-fact selected by it with reasonable care. Neither Lessor
nor Agent nor any of their respective directors, officers, employees, agents or
advisors shall be responsible to any Participant for any action taken or omitted
to be taken by it or them hereunder or under any other Operative Document or in
connection herewith or therewith, except for its or their own gross negligence
or willful misconduct. Except as otherwise provided under this Agreement, Lessor
and Agent shall take such action with respect to the Operative Documents as
shall be directed by the Required Participants.
6.03. Reliance. Lessor or Agent shall be entitled to rely upon any
certificate, notice or other document (including any cable, telegram, facsimile
or telex) believed by it in good faith to be genuine and correct and to have
been signed or sent by or on behalf of the proper Person or Persons, and upon
advice and statements of legal counsel, independent accountants and other
experts selected by Lessor or Agent with reasonable care. As to any other
matters not expressly provided for by this Agreement, neither Lessor nor Agent
shall be required to take any action or exercise any discretion, but shall be
required to act or to refrain from acting upon instructions of the Required
Participants and shall in all cases be fully protected by the Participants in
acting, or in refraining from acting, hereunder or under any other Operative
Document in accordance with the instructions of the Required Participants, and
such instructions of the Required Participants and any action taken or failure
to act pursuant thereto shall be binding on all of the Participants.
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6.04. Defaults. Neither Lessor nor Agent shall be deemed to have knowledge
or notice of the occurrence of any Default unless Lessor or Agent has received a
written notice from a Participant or Lessee, referring to this Agreement,
describing such Default and stating that such notice is a "Notice of Default".
If Lessor and Agent receive such a notice of the occurrence of a Default, Agent
shall give prompt notice thereof to the Participants. Lessor and Agent shall
take such action with respect to such Default as shall be reasonably directed by
the Required Participants; provided, however, that until Lessor and Agent shall
have received such directions, Lessor or Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such
Default as it shall deem advisable in the best interest of the Participants.
6.05. Indemnification. Without limiting the Obligations of Lessee
hereunder, each Participant agrees to indemnify Lessor and Agent (to the extent
not previously reimbursed by Lessee), ratably in accordance with such
Participant's Proportionate Share, for any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may at any time be imposed
on, incurred by or asserted against Lessor or Agent in any way relating to or
arising out of this Agreement or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or the
enforcement of any of the terms hereof or thereof; provided, however, that no
Participant shall be liable for any of the foregoing to the extent they arise
from Lessor's or Agent's gross negligence or willful misconduct, provided,
further however, that to the extent indemnification payments made by the
Participants pursuant to this Paragraph 6.05 are subsequently recovered from or
for the account of Lessee, such previously paid indemnification payments shall
be promptly refunded to the Participants by Lessor and Agent. Lessor or Agent
shall be fully justified in refusing to take or in continuing to take any action
hereunder unless it shall first be indemnified to its satisfaction by the
Participants against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. The obligations of
each Participant under this Paragraph 6.05 shall survive the payment and
performance of the Lessee Obligations, the termination of this Agreement and any
Participant ceasing to be a party to this Agreement (with respect to events
which occurred prior to the time such Participant ceased to be a Participant
hereunder).
6.06. Non-Reliance. Each Participant represents that it has, independently
and without reliance on Lessor, Agent, or any other Participant, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of the business, prospects, management, financial condition and
affairs of Lessee and the Subsidiaries and its own decision to enter into this
Agreement and agrees that it will, independently and without reliance upon
Lessor, Agent or any other Participant, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
appraisals and decisions in taking or not taking action under this Agreement or
any other Operative Document. Neither Lessor nor Agent nor any of their
respective affiliates nor any of their respective directors, officers,
employees, agents or advisors shall (a) be required to keep any Participant
informed as to the performance or observance by Lessee or any of its
Subsidiaries of the obligations under this Agreement or any other document
referred to or provided for herein or to make inquiry of, or to inspect the
properties or books of Lessee or any of its Subsidiaries; (b) have any duty or
responsibility to provide any Participant with any credit or other information
concerning Lessee or any of its Subsidiaries which may come into the possession
of Lessor or Agent, except for notices, reports
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and other documents and information expressly required to be furnished to the
Participants by Lessor or Agent hereunder; or (c) be responsible to any
Participant for (i) any recital, statement, representation or warranty made by
Lessee or any officer, employee or agent of Lessee in this Agreement or in any
of the other Operative Documents, (ii) the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any Operative
Document, (iii) the value or sufficiency of the Property or the validity or
perfection of any of the liens or security interests intended to be created by
the Operative Documents, or (iv) any failure by Lessee to perform its
obligations under this Agreement or any other Operative Document.
6.07. Resignation or Removal of Agent. Agent may resign at any time by
giving thirty (30) days prior written notice thereof to Lessee and the
Participants, and Agent may be removed at any time with or without cause by the
Required Participants. Upon any such resignation or removal, the Required
Participants shall have the right to appoint a successor Agent, which Agent, if
not a Participant, shall be reasonably acceptable to Lessee; provided, however,
that Lessee shall have no right to approve a successor Agent if a Default has
occurred and is continuing. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from the duties and
obligations thereafter arising hereunder. After any retiring Agent's resignation
or removal hereunder as Agent, the provisions of this Section VI and any other
provision of this Agreement or any other Operative Document which by its terms
survives the termination of this Agreement shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Agent.
6.08. Authorization. Agent is hereby authorized by the Participants to
execute, deliver and perform, each of the Operative Documents to which Agent is
or is intended to be a party and each Participant agrees to be bound by all of
the agreements of Agent contained in the Operative Documents.
6.09. Lessor and Agent in their Individual Capacities. Lessor, Agent and
their respective affiliates may make loans to, accept deposits from and
generally engage in any kind of banking or other business with Lessee and its
Subsidiaries and affiliates as though Lessor were not Lessor hereunder and Agent
were not Agent hereunder. With respect to Advances, if any, made by Agent in its
capacity as a Participant, Agent in its capacity as a Participant shall have the
same rights and powers under this Agreement and the other Operative Documents as
any other Participant and may exercise the same as though it were not Agent, and
the terms "Participant" or "Participants" shall include Agent in its capacity as
a Participant.
SECTION 7. MISCELLANEOUS
7.01. Notices. Except as otherwise provided herein, all notices, requests,
demands, consents, instructions or other communications to or upon Lessor,
Lessee, any Participant or Agent under this Agreement or the other Operative
Documents shall be in writing and faxed, mailed or delivered, if to Lessor,
Lessee or Agent, at its respective facsimile number or address set forth below
or, if to any Participant, at the address or facsimile number specified beneath
the
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heading "Address for Notices" under the name of such Participant in Part B
of Schedule I (or to such other facsimile number or address for any party as
indicated in any notice given by that party to the other parties). All such
notices and communications shall be effective (a) when sent by Federal Express
or other overnight service of recognized standing, on the Business Day following
the deposit with such service; (b) when mailed, first class postage prepaid and
addressed as aforesaid through the United States Postal Service, upon receipt;
(c) when delivered by hand, upon delivery; and (d) when faxed, upon confirmation
of receipt; provided, however, that any Advance Request, Notice of Rental Period
Selection, Extension Request, Notice of Term Purchase Option Exercise, Notice of
Marketing Option Exercise or Notice of Expiration Date Purchase Option Exercise
delivered to Lessor or Agent shall not be effective until received by Lessor or
Agent.
Lessee: KLA-Tencor Corporation
160 Rio Robles Drive
San Jose, California 95134
Attn: Treasurer
Tel: (408) 875-2143
Fax: (408) 434-4268
and
KLA-Tencor Corporation
160 Rio Robles Drive
San Jose, California 95134
Attn: General Counsel
Tel: (408) 875-2423
Fax: (408) 875-2002
Lessor: Lease Plan U.S.A., Inc.
c/o ABN AMRO Bank N.V.
135 South LaSalle Street, Suite 711
Chicago, IL 60603
Attn: David M. Shipley
Tel: (312) 904-2183
Fax: (312) 904-6217
Agent: ABN AMRO Bank N.V.
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
Tel: (212) 314-1724
Fax: (212) 314-1709
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With a copy to:
ABN AMRO Bank N.V.
101 California Street, Suite 4550
San Francisco, CA 94111-5812
Attn: Bruce Swords
Tel: (415) 984-3721
Fax: (415) 362-3524
Each Advance Request, Notice of Rental Period Selection, Extension Request,
Notice of Term Purchase Option Exercise, Notice of Marketing Option Exercise and
Notice of Expiration Date Purchase Option Exercise shall be given by Lessee to
Agent's office located at its address referred to above during its normal
business hours; provided, however, that any such notice received by Agent after
10:00 a.m. on any Business Day shall be deemed received by Agent on the next
Business Day. In any case where this Agreement authorizes notices, requests,
demands or other communications by Lessee to any Lessor Party to be made by
telephone or facsimile, any Lessor Party may conclusively presume that anyone
purporting to be a person designated in any incumbency certificate or other
similar document received by such Lessor Party is such a person.
7.02. Expenses. Lessee shall pay on demand, whether or not any Advance is
made hereunder, (a) all reasonable fees and expenses, including reasonable
attorneys' fees and expenses, incurred by Lessor and Agent in connection with
the preparation, negotiation, execution and delivery of, the consummation of the
transactions contemplated by and the exercise of their duties under, this
Agreement and the other Operative Documents, and the preparation, negotiation,
execution and delivery of amendments and waivers hereunder and thereunder and
(b) all reasonable fees and expenses, including reasonable attorneys' fees and
expenses, incurred by the Lessor Parties in the enforcement or attempted
enforcement of any of the Lessee Obligations or in preserving any of the Lessor
Parties' rights and remedies (including all such fees and expenses incurred in
connection with any "workout" or restructuring affecting the Operative Documents
or the Lessee Obligations or any bankruptcy or similar proceeding involving
Lessee or any of its Subsidiaries). As used herein, the term "reasonable
attorneys' fees and expenses" shall include, without limitation, allocable costs
and expenses of Agent's and Participants' in-house legal counsel and staff. The
obligations of Lessee under this Paragraph 7.02 shall survive the payment and
performance of the Lessee Obligations and the termination of this Agreement.
7.03. Indemnification. To the fullest extent permitted by law, Lessee
agrees to protect, indemnify, defend and hold harmless, on an after-tax basis,
the Lessor Parties and the other Indemnitees from and against any and all
liabilities, losses, damages or expenses of any kind or nature (including
Indemnified Taxes but not other taxes) and from any suits, claims or demands
(including in respect of or for reasonable attorney's fees and other expenses)
arising on account of or in connection with any matter or thing or action or
failure to act by Indemnitees, or any of them, arising out of or relating to the
Operative Documents, any transaction contemplated thereby or the Property,
including any use by Lessee of the Property or the Advances, except to the
extent such liability arises from (a) the willful misconduct or gross negligence
of such Indemnitee, (b) any act or occurrence which first occurs after the Lease
Agreement has
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terminated and Lessee is no longer in possession of the Property, (c) the breach
by any Lessor Party of its obligations under the Operative Documents or (d)
except as otherwise specifically provided in the Operative Documents, the
performance by any Lessor Party of its obligations thereunder. Upon receiving
knowledge of any suit, claim or demand asserted by a third party that any Lessor
Party believes is covered by this indemnity, such Lessor Party shall give Lessee
notice of the matter and an opportunity to defend it, at Lessee's sole cost and
expense, with legal counsel reasonably satisfactory to such Lessor Party. Such
Lessor Parties may also require Lessee to defend the matter. Any failure or
delay of any Lessor Party to notify Lessee of any such suit, claim or demand
shall not relieve Lessee of its obligations under this Paragraph 7.03. The
obligations of Lessee under this Paragraph 7.03 shall survive the payment and
performance of the Lessee Obligations and the termination of this Agreement.
7.04. Waivers; Amendments. Any term, covenant, agreement or condition of
this Agreement or any other Operative Document may be amended or waived if such
amendment or waiver is in writing and is signed by Lessor, Lessee and the
Required Participants; provided, however that:
(a) Any amendment, waiver or consent which (i) increases the Total
Commitment, (ii) extends the Commitment Termination Date or the Scheduled
Expiration Date, (iii) reduces the Rental Rate or any fees or other
amounts payable for the account of the Participants hereunder, (iv)
postpones any date scheduled for any payment of Base Rent or any fees or
other amounts payable for the account of the Participants hereunder or
thereunder, (v) amends Paragraph 2.06 or this Paragraph 7.04, (vi) amends
the definition of Required Participants or (vii) releases Lessor's or
Agent's interest in any substantial part of the Property, must be in
writing and signed or approved in writing by all Participants;
(b) Any amendment, waiver or consent which increases or decreases
the Proportionate Share or Commitment of any Participant must be in
writing and signed by such Participant; and
(c) Any amendment, waiver or consent which affects the rights or
obligations of Agent must be in writing and signed by Agent.
No failure or delay by any Lessor Party in exercising any right hereunder shall
operate as a waiver thereof or of any other right nor shall any single or
partial exercise of any such right preclude any other further exercise thereof
or of any other right. Unless otherwise specified in such waiver or consent, a
waiver or consent given hereunder shall be effective only in the specific
instance and for the specific purpose for which given.
7.05. Successors and Assigns.
(a) Binding Effect. This Agreement and the other Operative
Documents shall be binding upon and inure to the benefit of Lessee,
Lessor, the Participants, Agent and their respective permitted successors
and assigns. All references in this Agreement to any Person shall be
deemed to include all successors and assigns of such Person.
(b) Participant Assignments.
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(i) Any Participant may, at any time, sell and assign to any
other Participant or any Eligible Assignee (individually, an
"Assignee Participant") all or a portion of its rights and
obligations under this Agreement and the other Operative Documents
(such a sale and assignment to be referred to herein as an
"Assignment") pursuant to an assignment agreement in the form of
Exhibit L (an "Assignment Agreement"), executed by each Assignee
Participant and such assignor Participant (an "Assignor
Participant") and delivered to Agent for its acceptance and
recording in the Register; provided, however, that:
(A) Without the written consent of Lessor, Agent and,
if no Default has occurred and is continuing, Lessee (which
consent of Lessor, Agent and Lessee shall not be unreasonably
withheld), no Participant may make any Assignment to any
Assignee Participant which is not, immediately prior to such
Assignment, a Participant hereunder or an Affiliate thereof;
or
(B) Without the written consent of Lessor, Agent and,
if no Default has occurred and is continuing, Lessee (which
consent of Lessor, Agent and Lessee shall not be unreasonably
withheld), no Participant may make any Assignment to any
Assignee Participant if, after giving effect to such
Assignment, the Commitment of such Participant or such
Assignee Participant would be less than Five Million Dollars
($5,000,000) (except that a Participant may make an Assignment
which reduces its Commitment to zero without the written
consent of Lessor, Agent or Lessee); or
(C) Without the written consent of Lessor, Agent and,
if no Default has occurred and is continuing, Lessee (which
consent of Lessor, Agent and Lessee shall not be unreasonably
withheld), no Participant may make any Assignment of its
Outstanding Tranche A Participation Amount or its Outstanding
Tranche B Participation Amount which does not assign and
delegate an equal pro rata interest in (1) such Participant's
Outstanding Tranche A Participation Amount and its Outstanding
Tranche B Participation Amount, (2) such Participant's Tranche
A Percentage and its Tranche B Percentage, and (3) such
Participant's other rights, duties and obligations relating to
the Tranche A Portion and the Tranche B Portion under this
Agreement and the other Operative Documents.
(D) Without the written consent of Lessor, Agent and,
if no Default has occurred and is continuing, Lessee (which
consent of Lessor, Agent and Lessee shall not be unreasonably
withheld), no Tranche C Participant may make any Assignment of
its Outstanding Tranche C Participation Amount which does not
assign and delegate an equal pro rata interest in (1) such
Participant's Outstanding Tranche C Participation Amount, (2)
such Participant's Tranche C Percentage, and (3) such
Participant's other rights, duties and obligations relating to
the Tranche C Portion under this Agreement and the other
Operative Documents.
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Upon such execution, delivery, acceptance and recording of each
Assignment Agreement, from and after the Assignment Effective Date
determined pursuant to such Assignment Agreement, (y) each Assignee
Participant thereunder shall be a Participant hereunder with a
Tranche A Percentage, Tranche B Percentage, Tranche C Percentage and
Proportionate Share as set forth on Attachment 1 to such Assignment
Agreement (under the caption "Tranche Percentages and Proportionate
Shares After Assignment") and shall have the rights, duties and
obligations of such a Participant under this Agreement and the other
Operative Documents, and (z) the Assignor Participant thereunder
shall be a Participant with a Tranche A Percentage, Tranche B
Percentage, Tranche C Percentage and Proportionate Share as set
forth on Attachment 1 to such Assignment Agreement (under the
caption "Tranche Percentages and Proportionate Shares After
Assignment") , or, if the Proportionate Share of the Assignor
Participant has been reduced to 0%, the Assignor Participant shall
cease to be a Participant and to have any obligation to fund any
portion of any Advance; provided, however, that any such Assignor
Participant which ceases to be a Participant shall continue to be
entitled to the benefits of any provision of this Agreement which by
its terms survives the termination of this Agreement. Each
Assignment Agreement shall be deemed to amend Schedule I to the
extent, and only to the extent, necessary to reflect the addition of
each Assignee Participant, the deletion of each Assignor Participant
which reduces its Proportionate Share to 0% and the resulting
adjustment of Tranche A Percentages, Tranche B Percentages, Tranche
C Percentages and Proportionate Shares arising from the purchase by
each Assignee Participant of all or a portion of the rights and
obligations of an Assignor Participant under this Agreement and the
other Operative Documents. Each Assignee Participant which was not
previously a Participant hereunder and which is not incorporated
under the laws of the United States of America or a state thereof
shall, within three (3) Business Days of becoming a Participant,
deliver to Lessee and Agent two duly completed copies of United
States Internal Revenue Service Form 1001 or 4224 (or successor
applicable form), as the case may be, certifying in each case that
such Participant is entitled to receive payments under this
Agreement without deduction or withholding of any United States
federal income taxes.
(ii) Agent shall maintain at its address referred to in
Paragraph 7.01 a copy of each Assignment Agreement delivered to it
and a register (the "Register") for the recordation of the names and
addresses of the Participants and the Tranche A Percentage, Tranche
B Percentage, Tranche C Percentage and Proportionate Share of each
Participant from time to time. The entries in the Register shall be
conclusive in the absence of manifest error, and Lessee, Agent and
the Participants may treat each Person whose name is recorded in the
Register as the owner of the interests recorded therein for all
purposes of this Agreement. The Register shall be available for
inspection by Lessee or any Participant at any reasonable time and
from time to time upon reasonable prior notice.
(iii) Upon its receipt of an Assignment Agreement executed by
an Assignor Participant and an Assignee Participant (and, to the
extent required by
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clause (i) of this Subparagraph 7.05(b), by Lessor, Agent and
Lessee), together with payment to Agent by Assignor Participant of a
registration and processing fee of $2,500, Agent shall (A) promptly
accept such Assignment Agreement and (B) on the Assignment Effective
Date determined pursuant thereto record the information contained
therein in the Register and give notice of such acceptance and
recordation to Lessor, the Participants and Lessee. Agent may, from
time to time at its election, prepare and deliver to Lessor, the
Participants and Lessee a revised Schedule I reflecting the names,
addresses and respective Proportionate Shares of all Participants
then parties hereto.
(iv) Subject to Subparagraph 7.13(g), the Lessor Parties may
disclose the Operative Documents and any financial or other
information relating to Lessee or any Subsidiary to each other or to
any potential Assignee Participant.
(c) Participant Subparticipations. Any Participant may at any time
sell to one or more banks or other financial institutions
("Subparticipants") subparticipation interests in the rights and interests
of such Participant under this Agreement and the other Operative
Documents. In the event of any such sale by a Participant of
subparticipation interests, such Participant's obligations under this
Agreement and the other Operative Documents shall remain unchanged, such
Participant shall remain solely responsible for the performance thereof
and Lessee and the other Lessor Parties shall continue to deal solely and
directly with such Participant in connection with such Participant's
rights and obligations under this Agreement. Any agreement pursuant to
which any such sale is effected may require the selling Participant to
obtain the consent of the Subparticipant in order for such Participant to
agree in writing to any amendment, waiver or consent of a type specified
in clause (i), (ii), (iii) or (iv) of Subparagraph 7.04(a) but may not
otherwise require the selling Participant to obtain the consent of such
Subparticipant to any other amendment, waiver or consent hereunder. Lessee
agrees that any Participant which has transferred any subparticipation
interest shall, notwithstanding any such transfer, be entitled to the full
benefits accorded such Participant under Paragraph 2.12, Paragraph 2.13,
and Paragraph 2.14, as if such Participant had not made such transfer.
(d) Lessor Assignments. Lessor may, upon one (1) month's prior
written notice to Lessee and Agent, sell and assign all of its right,
title and interest in the Property and its rights, powers, privileges,
duties and obligations under this Agreement and the other Operative
Documents, provided that:
(i) If such sale and assignment is effected after either (A)
the occurrence of a Change of Law which makes it unlawful or
unreasonably burdensome for Lessor to hold legal or beneficial title
to the Property or to perform its obligations and duties under this
Agreement and the other Operative Documents or (B) the resignation
or removal of the Agent which was the Agent at the time Lessor
became the Lessor, the purchaser/assignee (the "successor Lessor")
shall be either (1) a Participant or an Eligible Assignee that is a
multi-asset Person having substantial assets beyond its interest in
the Property and the Operative Documents or (2) a Person approved as
provided in clause (ii) below; or
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(ii) If such sale and assignment is effected in any other
circumstance, the successor Lessor shall be approved in writing by
Agent, Required Participants and, if no Default has occurred and is
continuing, Lessee (which consents of Agent, Required Participants
and Lessee shall not be unreasonably withheld); and
(iii) The successor Lessor executes such documents,
instruments and agreements as may reasonably be necessary to
evidence its agreement to assume all of the obligations and duties
of the Lessor under this Agreement and the other Operative
Documents.
Upon the consummation of any such sale and assignment, (A) the successor
Lessor shall become the "Lessor" and shall succeed to and become vested
with all the rights, powers, privileges, duties and obligations of the
Lessor under this Agreement and the other Operative Documents and (B) the
retiring Lessor shall be discharged from the duties and obligations of the
Lessor thereafter arising under this Agreement and the other Operative
Documents. After any retiring Lessor's discharge as the Lessor, the
provisions of Section VI and any other provision of this Agreement or any
other Operative Document which by its terms survives the termination of
this Agreement shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the
Lessor.
7.06. Setoff. In addition to any rights and remedies of the Participants
provided by law, each Participant shall have the right, with the prior written
consent of Agent, but without prior notice to or consent of Lessee, any such
notice and consent being expressly waived by Lessee to the extent permitted by
applicable law, upon the occurrence and during the continuance of an Event of
Default, to set-off and apply against the Lessee Obligations, whether matured or
unmatured, any amount owing from such Participant to Lessee, at or at any time
after, the occurrence of such Event of Default. The aforesaid right of set-off
may be exercised by such Participant against Lessee or against any trustee in
bankruptcy, debtor in possession, assignee for the benefit of creditors,
receiver or execution, judgment or attachment creditor of Lessee or against
anyone else claiming through or against Lessee or such trustee in bankruptcy,
debtor in possession, assignee for the benefit of creditors, receiver, or
execution, judgment or attachment creditor, notwithstanding the fact that such
right of set-off shall not have been exercised by such Participant prior to the
occurrence of an Event of Default. Each Participant agrees promptly to notify
Lessee after any such set-off and application made by such Participant, provided
that the failure to give such notice shall not affect the validity of such
set-off and application.
7.07. No Third Party Rights. Nothing expressed in or to be implied from
this Agreement is intended to give, or shall be construed to give, any Person,
other than the parties hereto and their permitted successors and assigns
hereunder, any benefit or legal or equitable right, remedy or claim under or by
virtue of this Agreement or under or by virtue of any provision herein.
7.08. Partial Invalidity. If at any time any provision of this Agreement
or any other Operative Document is or becomes illegal, invalid or unenforceable
in any respect under the law or any jurisdiction, neither the legality, validity
or enforceability of the remaining provisions of this Agreement or the other
Operative Documents nor the legality, validity or enforceability of
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such provision under the law of any other jurisdiction shall in any way be
affected or impaired thereby.
7.09. JURY TRIAL. EACH OF LESSEE AND THE LESSOR PARTIES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY AS TO ANY ISSUE RELATING TO THE OPERATIVE DOCUMENTS IN ANY ACTION,
PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY OPERATIVE
DOCUMENT.
7.10. Counterparts. This Agreement may be executed in any number of
identical counterparts, any set of which signed by all the parties hereto shall
be deemed to constitute a complete, executed original for all purposes.
7.11. No Joint Venture, Etc. Neither this Agreement nor any other
Operative Document nor any transaction contemplated hereby or thereby shall be
construed to (a) constitute a partnership or joint venture between Lessee and
any Lessor Party or (b) impose upon any Lessor Party any agency relationship
with or fiduciary duty to Lessee.
7.12. Usury Savings Clause. Nothing contained in this Agreement or any
other Operative Documents shall be deemed to require the payment of interest or
other charges by Lessee in excess of the amount the applicable Lessor Parties
may lawfully charge under applicable usury laws. In the event any Lessor Party
shall collect monies which are deemed to constitute interest which would
increase the effective interest rate to a rate in excess of that permitted to be
charged by applicable law, all such sums deemed to constitute excess interest
shall, upon such determination, at the option of Lessor, be returned to Lessee
or credited against other Lessee Obligations.
7.13. Confidentiality. No Lessor Party shall disclose to any Person any
information with respect to Lessee or any of its Subsidiaries which is furnished
pursuant to this Agreement or under the other Operative Documents, except that
any Lessor Party may disclose any such information (a) to its own directors,
officers, employees, auditors, counsel and other advisors and to its Affiliates;
(b) to any other Lessor Party; (c) which is otherwise available to the public;
(d) if required or appropriate in any report, statement or testimony submitted
to any Governmental Authority having or claiming to have jurisdiction over such
Lessor Party; (e) if required or appropriate in response to any summons or
subpoena or in connection with any litigation; (f) to comply with any
Requirement of Law applicable to such Lessor Party; (g) to any Assignee
Participant or Subparticipant or any prospective Assignee Participant or
Subparticipant, provided that such Assignee Participant or Subparticipant or
prospective Assignee Participant or Subparticipant agrees to be bound by this
Paragraph 7.13; or (h) otherwise with the prior consent of Lessee; provided,
however, that any disclosure made in violation of this Agreement shall not
affect the obligations of Lessee and its Subsidiaries under this Agreement and
the other Operative Documents.
[The first signature page follows.]
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IN WITNESS WHEREOF, Lessee, Lessor, the Participants and Agent have caused
this Agreement to be executed as of the day and year first above written.
LESSEE: KLA-TENCOR CORPORATION
By:______________________________________
Name:_________________________________
Title:________________________________
LESSOR: LEASE PLAN U.S.A., INC.
By:______________________________________
Name:_________________________________
Title:________________________________
AGENT: ABN AMRO BANK N.V.
By:______________________________________
Name:_________________________________
Title:________________________________
By:______________________________________
Name:_________________________________
Title:________________________________
CO-AGENT: BANQUE NATIONALE DE PARIS
By:______________________________________
Name:_________________________________
Title:________________________________
PARTICIPANTS: ABN AMRO BANK N.V.
By:______________________________________
Name:_________________________________
Title:________________________________
By:______________________________________
Name:_________________________________
Title:________________________________
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BANQUE NATIONALE DE PARIS
By:______________________________________
Name:_________________________________
Title:________________________________
KEY BANK NATIONAL ASSOCIATION
By:______________________________________
Name:_________________________________
Title:________________________________
BANK BOSTON N.A.
By:______________________________________
Name:_________________________________
Title:________________________________
THE BANK OF NEW YORK
By:______________________________________
Name:_________________________________
Title:________________________________
THE INDUSTRIAL BANK OF JAPAN,
LIMITED SAN FRANCISCO AGENCY
By:______________________________________
Name:_________________________________
Title:________________________________
THE SANWA BANK, LIMITED
SAN FRANCISCO BRANCH
By:______________________________________
Name:_________________________________
Title:________________________________
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THE BANK OF NOVA SCOTIA
By:______________________________________
Name:_________________________________
Title:________________________________
THE SUMITOMO TRUST & BANKING CO.,
LTD., LOS ANGELES AGENCY
By:______________________________________
Name:_________________________________
Title:________________________________
UNION BANK OF CALIFORNIA, N.A.
By:______________________________________
Name:_________________________________
Title:________________________________
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SCHEDULE I
PARTICIPANTS
PART A - TRANCHE PERCENTAGES AND PROPORTIONATE SHARES
Tranche A Tranche B Tranche C Proportionate
Participant Percentage Percentage Percentage Share
----------- ---------- ---------- ---------- -------------
ABN AMRO
Bank N.V 7.29896907% 1.12960236% 03.00000000% 11.42857143%
Banque Nationale
de Paris 9.15463918% 1.41678940% 00.00000000% 10.57142857%
Key Bank National
Association 8.65979381% 1.34020619% 00.00000000% 10.00000000%
Bank Boston N.A 8.41237113% 1.30191458% 00.00000000% 9.71428571%
The Bank of
New York 8.41237113% 1.30191458% 00.00000000% 9.71428571%
The Industrial
Bank of Japan, Ltd.,
San Francisco Agency 8.41237113% 1.30191458% 00.00000000% 9.71428571%
The Sanwa Bank, Ltd.,
San Francisco Branch 8.41237113% 1.30191458% 00.00000000% 9.71428571%
The Bank of
Nova Scotia 8.41237113% 1.30191458% 00.00000000% 9.71428571%
The Sumitomo Trust &
Banking Co., Ltd.,
Los Angeles Agency 8.41237113% 1.30191458% 00.00000000% 9.71428571%
Union Bank
of California, N.A 8.41237113% 1.30191458% 00.00000000% 9.71428571%
TOTAL 84.00000000% 13.00000000% 03.00000000% 100.00000000%
I-1
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PART B - ADDRESSES, ETC.
ABN AMRO BANK N.V.
Applicable Participating Office:
ABN AMRO Bank N.V.
San Francisco International Branch
101 California Street, Suite 4550
San Francisco, CA 94111
Address for Notices:
ABN AMRO Bank N.V.
San Francisco International Branch
101 California Street, Suite 4550
San Francisco, CA 94111
Attention: Bruce Swords
Telephone: (415) 984-3721
Fax: (415) 362-3524
ABN AMRO North America, Inc.
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attention: Linda Boardman
Telephone: (212) 314-1724
Fax: (212) 314-1709
Wiring Instructions:
ABN AMRO Bank N.V.
New York, New York
RT/ABA No.: 026009580
Account Name: ABN AMRO Bank N.V. - Chicago CPU
Account No.: 650-001-1789-41
Reference: KLA-Tencor
I-2
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BANQUE NATIONALE DE PARIS
Applicable Participating Office:
Banque Nationale de Paris
180 Montgomery Street
San Francisco, CA 94104
Address for Notices:
Banque Nationale de Paris
180 Montgomery Street
San Francisco, CA 94104
Attention: Rafael Lumanian, Vice President
Telephone: (415) 956-0707
Fax No: (415) 296-8954
Wiring Instructions:
Federal Reserve Bank of San Francisco
Banque Nationale de Paris, San Francisco Branch
ABA Number: 121027234
Reference: KLA-TENCOR LEASE
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KEY BANK NATIONAL ASSOCIATION
Applicable Participating Office:
Key Bank National Association
700 Fifth Avenue
Seattle, WA 98104
Address for Notices:
Key Bank National Association
700 Fifth Avenue, 46th Floor
Seattle, WA 98104
Attention: Kevin McBride
Telephone: (206) 684-6079
Fax No: (206) 684-6035
Wiring Instructions:
Key Bank National Association
Seattle, Washington
ABA No: 125-000-578
For Further Credit to: NW Region Specialty Services
Account No: 01500163
Reference: KLA-Tencor
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BANK BOSTON N.A.
Applicable Participating Office:
Bank Boston N.A.
435 Tasso Street
Palo Alto, CA 94301
Address for Notices:
Bank Boston N.A.
435 Tasso Street, Suite 250
Palo Alto, CA 94301
Attention: Maia D. Heymann, Vice President
Telephone: (650) 853-0770
Fax No: (650) 853-1425
Wiring Instructions:
Bank Boston N.A.
Boston, MA
ABA No: 011-000-390
Account No: 540-99647
Reference: KLA-Tencor
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THE BANK OF NEW YORK
Participating Office:
The Bank of New York
10990 Wilshire Boulevard, Suite 1125
Los Angeles, CA 90024
Address for Notices:
The Bank of New York
10990 Wilshire Boulevard, Suite 1125
Los Angeles, CA 90024
Attention: Elizabeth T. Ying
Telephone: (310) 996-8661
Fax No: (310) 996-8667
The Bank of New York
One Wall Street, 15th Floor
New York, NY 10286
Attention: Susan Seibel
Telephone: (212) 635-7944
Fax No: (212) 635-1698
Wiring Instructions:
The Bank of New York
One Wall Street, 22nd Floor
New York, NY 10286
Attention: Sandra Morgan
ABA No: 021-000-018
Account No: GLA111556
Reference: KLA-Tencor
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THE INDUSTRIAL BANK OF JAPAN, LIMITED
Participating Office:
The Industrial Bank of Japan, Limited
San Francisco Agency
555 California Street
San Francisco, CA 94104
Address for Notices:
The Industrial Bank of Japan, Limited
San Francisco Agency
555 California Street, Suite 3110
San Francisco, CA 94104
Attention: Debbie Rajkumar
Telephone: (415) 693-1830
Fax No: (415) 982-1917
Wiring Instructions:
Bank of America NT & SA
International Deposit Services 6561
1850 Gateway Boulevard
Concord, CA 94520
ABA No: 121-000-358
Account: The Industrial Bank of Japan, Limited
Los Angeles Agency
Account No: 62906-14014
For Credit to IBJ SFA, A/C 2601-22011
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THE SANWA BANK, LIMITED
Participating Office:
The Sanwa Bank, Limited
San Francisco Branch
444 Market Street
San Francisco, CA 94111
Address for Notices:
The Sanwa Bank, Limited
San Francisco Branch
444 Market Street, 18th Floor
San Francisco, CA 94111
Attention: Terrence J. Mech
Telephone No: (415) 597-5222
Fax No: (415) 788-5459
Wiring Instructions:
Bank of America
San Francisco, CA
ABA No: 1210-00358
Account No: 6290112268
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THE BANK OF NOVA SCOTIA
Participating Office:
The Bank of Nova Scotia
580 California Street
San Francisco, CA 94104
Address for Notices:
The Bank of Nova Scotia
580 California Street, Suite 2100
San Francisco, CA 94104
Attention: Christopher Osborn
Telephone: (415) 986-1100
Fax No: (415) 397-0791
Wiring Instructions:
The Bank of Nova Scotia
New York Agency
ABA No: 026 002 532
For Credit A/C # 06101-35-BNS
San Francisco Loan Service
Reference: KLA-Tencor
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THE SUMITOMO TRUST & BANKING CO., LIMITED
Participating Office:
The Sumitomo Trust & Banking Co., Ltd.
Los Angeles Agency
333 South Grand Avenue, Suite 5300
Los Angeles, CA 90071
Address for Notices:
The Sumitomo Trust & Banking Co., Ltd.
Los Angeles Agency
333 South Grand Avenue, Suite 5300
Los Angeles, CA 90071
Attention: Ninoos Benjamin
Telephone: (213) 229-2104
Fax No: (213) 613-1083
Copy to:
Credit Administration Department
Telephone: (213) 629-3191
Fax No: (213) 628-2719
Wiring Instructions:
Bank of America
San Francisco, California
ABA No: 121 000 358
Account No: 62907-31117
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UNION BANK OF CALIFORNIA, N.A.
Participating Office:
Union Bank of California, N.A.
350 California Street, 6th Floor
San Francisco, CA 94104
Address for Notices:
Union Bank of California, N.A.
350 California Street, 6th Floor
San Francisco, CA 94104
Attention: Glenn Leyrer
Telephone: (415) 705-7578
Fax No: (415) 705-5093
Wiring Instructions:
Union Bank of California, N.A.
Monterey Park, CA
ABA No: 122-000-496
Account No: 070196431
Attention: 192 Note Center
Reference: KLA-Tencor
I-11
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SCHEDULE II
PRICING GRID
(For LIBOR Rental Rate)
SENIOR
FUNDED
INDEBTEDNESS/ PRICING APPLICABLE MARGIN
CAPITAL PERIOD FOR
RATIO LEVEL LIBOR RENTAL RATE
------------- ------- -----------------
less than or equal to 0.225 1 0.4200%
greater than 0.225
less than 0.300 2 0.5000%
greater than or equal to 0.300 3 0.7250%
EXPLANATION
1. The Applicable Margin with respect to the LIBOR Rental Rate will be set
for each Pricing Period and will vary depending upon whether such period
is a Level 1 Period, a Level 2 Period, or a Level 3 Period.
2. The first Pricing Period, which commences on the date of this Agreement
and ends on December 31, 1997, will be a Level 1 Period.
3. The second pricing period, which commences on January 1, 1998 and ends on
March 31, 1998, will be a Level 1 Period, a Level 2 Period, or a Level 3
Period depending upon Lessee's Senior Funded Indebtedness/Capital Ratio on
September 30, 1997.
3. Each Pricing Period thereafter will be a Level 1 Period, a Level 2 Period,
or a Level 3 Period depending upon Lessee's Senior Funded
Indebtedness/Capital Ratio on the last day of the most recent fiscal
quarter ending prior to the first day of such Pricing Period.
4. Examples:
(a) Lessee's Senior Funded Indebtedness/Capital Ratio is 0.12 on
September 30, 1997. The Pricing Period of January 1, 1998 through March
31, 1998 will be a Level 1 Period.
(b) Lessee's Senior Funded Indebtedness/Capital Ratio is 0.32 on
December 31, 1997. The Pricing Period of April 1, 1998 through June 30,
1998 will be a Level 3 Period.
II-1
68
SCHEDULE 1.O1
DEFINITIONS
"ABN AMRO" shall mean ABN AMRO Bank N.V.
"Acquisition Advances" shall have the meaning given to that term in
Subparagraph 2.01(b) of the Participation Agreement.
"Acquisition Agreement" shall mean:
(a) With respect to the Tract 2 Land and Improvements, the
Purchase Agreement dated as of August 10, 1995 between Lessee and BNP
Leasing Corporation;
(b) With respect to the Tract 3 Improvements, the Purchase
Agreement dated as of June 5, 1995 between Lessee and BNP Leasing
Corporation; and
(c) With respect to the Tract 4 Land and Improvements, the Option
Agreement dated as of July 26, 1995 between Lessee and Amdahl Corporation.
"Acquisition Date" shall mean the date on which Lessor acquires any Tract
of Property or pays any Phase II Termination Payment pursuant to the
Participation Agreement.
"Acquisition Price" shall mean, with respect to each Tract of Property,
the total purchase price payable by Lessor for such property on the Acquisition
Date therefor.
"Acquisition Request" shall have the meaning given to that term in
Subparagraph 2.03(a) of the Participation Agreement.
"Adjusted Net Income" shall mean, with respect to Lessee for any period,
the sum, determined on a consolidated basis in accordance with GAAP, of the
following:
(a) The net income or net loss of Lessee and its Subsidiaries for
such period before provision for income taxes;
plus
(b) The sum (to the extent deducted in calculating net income or
loss in clause (a) above) of (i) all interest expenses of Lessee and its
Subsidiaries accruing during such period, and (ii) all depreciation and
amortization expenses of Lessee and its Subsidiaries accruing during such
period;
plus
(c) The sum (to the extent deducted in calculating net income or
loss in clause (a) above) of all non-recurring charges taken by Lessee and
its Subsidiaries during such period in connection with the acquisition of
in-process technology;
1.01-1
69
minus
(d) All Capital Expenditures of Lessee and its Subsidiaries
accruing during such period;
Provided, however, that, in calculating the Adjusted Net Income of Lessee for
any period, all extraordinary and unusual gains and losses having no cash impact
shall be ignored (subject to any necessary adjustments for any tax impact).
"Advances" shall have the meaning given to that term in Subparagraph
2.01(b) of the Participation Agreement.
"Advance Requests" shall have the meaning given to that term in
Subparagraph 2.03(c) of the Participation Agreement.
"Affiliate" shall mean, with respect to any Person, (a) each Person that,
directly or indirectly, owns or controls, whether beneficially or as a trustee,
guardian or other fiduciary, five percent (5%) or more of any class of Equity
Securities of such Person, (b) each Person that controls, is controlled by or is
under common control with such Person or any Affiliate of such Person or (c)
each of such Person's officers, directors, joint venturers and partners;
provided, however, that in no case shall Lessor, Agent or any Participant be
deemed to be an Affiliate of Lessee or any of its Subsidiaries for purposes of
the Operative Documents. For the purpose of this definition, "control" of a
Person shall mean the possession, directly or indirectly, of the power to direct
or cause the direction of its management or policies, whether through the
ownership of voting securities, by contract or otherwise.
"Agent" shall mean ABN AMRO, acting in its capacity as Agent for the
Participants under the Operative Documents.
"Agent's Fee Letter" shall mean the letter agreement dated as of November
6, 1997 between Lessee and Agent.
"Agent's Fees" shall have the meaning given to that term in Subparagraph
2.04(a) of the Participation Agreement.
"Alternate Rental Rate" shall mean, for any Rental Period (or portion
thereof), the per annum rate equal to the Base Rate in effect from time to time
during such period plus the Applicable Margin, such rate to change from time
during such period as the Base Rate or Applicable Margin shall change.
"Applicable Margin" shall mean:
(a) With respect to the LIBOR Rental Rate, the per annum margin
determined pursuant to the Pricing Grid and added to the LIBO Rate; or
(b) With respect to the Alternate Rental Rate, Zero percent (0%)
per annum;
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70
Provided, however, that each Applicable Margin set forth in subparagraphs (a)
and (b) of this definition shall be increased by two percent (2.0%) per annum on
the date an Event of Default occurs and shall continue at such increased rate
while any Event of Default continues.
"Applicable Participating Office" shall mean, with respect to any
Participant, (a) initially, its office designated as such in Part B of Schedule
I (or, in the case of any Participant which becomes a Participant by an
assignment pursuant to Subparagraph 7.05(b) of the Participation Agreement, its
office designated as such in the applicable Assignment Agreement) and (b)
subsequently, such other office or offices as such Participant may designate to
Agent as the office at which such Participant's interest in the Lease Agreement
will thereafter be maintained and for the account of which all payments of Rent
and other amounts payable to such Participant under the Operative Documents will
thereafter be made.
"Appraisal" shall mean an appraisal of any Tract of the Property or a
portion thereof in a form satisfactory to Lessor, Agent and the Required
Participants, prepared by an independent MAI appraiser that (a) complies with
the Financial Institutions Reform, Recovery and Enforcement Act of 1989 and all
other applicable Governmental Rules and (b) is approved by Lessor, Agent and the
Required Participants (at the time such appraiser is selected).
"Appurtenant Rights" shall mean all easements and rights-of-way, strips
and gores of land, streets, ways, alleys, passages, sewer rights, water, water
courses, water rights and powers, air rights and development rights, liberties,
tenements, hereditaments and appurtenances of any nature whatsoever, in any way
belonging, relating or pertaining to any Land or the Improvements thereto and
the reversions, remainders, and all the estates, rights, titles, interests,
property, possession, claim and demand whatsoever, both in law and in equity,
of, in and to such Land and Improvements and every part and parcel thereof, with
the appurtenances thereto.
"Assignee Participant" shall have the meaning given to that term in
Subparagraph 7.05(b) of the Participation Agreement.
"Assignee Purchaser" shall have the meaning given to that term in
Subparagraph 5.03(b)of the Purchase Agreement.
"Assignment" shall have the meaning given to that term in Subparagraph
7.05(b) of the Participation Agreement.
"Assignment Agreement" shall have the meaning given to that term in
Subparagraph 7.05(b) of the Participation Agreement.
"Assignment Effective Date" shall have, with respect to each Assignment
Agreement, the meaning set forth therein.
"Assignment of Construction Agreements" shall have the meaning given to
that term in Subparagraph 2.11(a) of the Participation Agreement.
"Assignment of Lease" shall have the meaning given to that term in
Subparagraph 2.11(b) of the Participation Agreement.
1.01-3
71
"Assignor Participant" shall have the meaning given to that term in
Subparagraph 7.05(b) of the Participation Agreement.
"Assumed Appraisal" shall have the meaning given to that term in
Subparagraph 3.02(h) of the Purchase Agreement.
"Base Rate" shall mean, on any day, the greater of (a) the Prime Rate in
effect on such date and (b) the Federal Funds Rate for such day plus one-half
percent (0.50%).
"Base Rent" shall have the meaning given to that term in Subparagraph
2.03(a) of the Lease Agreement.
"Business Day" shall mean any day on which (a) commercial banks are not
authorized or required to close in San Francisco, California or New York, New
York and (b) if such Business Day is related to a LIBOR Rental Rate, dealings in
Dollar deposits are carried out in the London interbank market.
"Capital Adequacy Requirement" shall have the meaning given to that term
in Subparagraph 2.12(d) of the Participation Agreement.
"Capital Asset" shall mean, with respect to any Person, any tangible fixed
or capital asset owned or leased (in the case of a Capital Lease) by such
Person, or any expense incurred by such Person that is required by GAAP to be
reported as a non-current asset on such Person's balance sheet.
"Capital Expenditures" shall mean, with respect to any Person and any
period, all expenses accrued by such Person during such period for the
acquisition of Capital Assets (including all indebtedness incurred or assumed in
connection with Capital Leases).
"Capital Leases" shall mean any and all lease obligations that, in
accordance with GAAP, are required to be capitalized on the books of a lessee.
"Cash Collateral" shall mean cash held or maintained by Agent in a deposit
account to the extent such cash and account are held and maintained in
accordance with the Cash Collateral Agreement and Lessor has a first priority
perfected security interest therein securing the Lessee Obligations.
"Cash Collateral Agreement" shall have the meaning given to that term in
Subparagraph 2.11(a) of the Participation Agreement.
"Cash Equivalents" shall mean:
(a) Direct obligations of, or obligations the principal and
interest on which are unconditionally guaranteed by, the United States of
America or obligations of any agency of the United States of America to
the extent such obligations are backed by the full faith and credit of the
United States of America, in each case maturing within one year from the
date of acquisition thereof;
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72
(b) Certificates of deposit maturing within one year from the date
of acquisition thereof issued by a commercial bank or trust company
organized under the laws of the United States of America or a state
thereof or that is a Participant, provided that (A) such deposits are
denominated in Dollars, (B) such bank or trust company has capital,
surplus and undivided profits of not less than $100,000,000 and (C) such
bank or trust company has certificates of deposit or other debt
obligations rated at least A-1 (or its equivalent) by Standard and Poor's
Ratings Group or P-1 (or its equivalent) by Moody's Investors Service,
Inc.;
(c) Open market commercial paper maturing within 270 days from the
date of acquisition thereof issued by a corporation organized under the
laws of the United States of America or a state thereof, provided such
commercial paper is rated at least A-1 (or its equivalent) by Standard and
Poor's Ratings Group or P-1 (or its equivalent) by Moody's Investors
Service, Inc.; and
(d) Any repurchase agreement entered into with a commercial bank
or trust company organized under the laws of the United States of America
or a state thereof or that is a Participant, provided that (A) such bank
or trust company has capital, surplus and undivided profits of not less
than $100,000,000, (B) such bank or trust company has certificates of
deposit or other debt obligations rated at least A-1 (or its equivalent)
by Standard and Poor's Ratings Group or P-1 (or its equivalent) by Moody's
Investors Service, Inc., (C) the repurchase obligations of such bank or
trust company under such repurchase agreement are fully secured by a
perfected security interest in a security or instrument of the type
described in clause (a), (b) or (c) above and (D) such security or
instrument so securing the repurchase obligations has a fair market value
at the time such repurchase agreement is entered into of not less than
100% of such repurchase obligations.
"Casualty" shall mean any damage to, destruction of or decrease in the
value of all or any portion of any of the Property as a result of fire, flood,
earthquake or other natural cause; the actions or inactions of any Person or
Persons (whether willful or unintentional and whether or not constituting
negligence); or any other cause.
"Casualty and Condemnation Proceeds" shall mean all awards, damages,
compensation, reimbursement and other payments made or to be made to Lessee,
Lessor or Agent from any insurer, Governmental Authority or other Person (other
than Lessee or any Lessor Party) on account of any Casualty or Condemnation.
"Change of Control" shall mean, with respect to Lessee, (a) the
acquisition by any person or group of persons (within the meaning of Section 13
or 14 of the Securities Exchange Act of 1934 (as amended, the "Exchange Act"))
of (i) beneficial ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under the Exchange Act) of thirty-five
percent (35%) or more of the outstanding Equity Securities of Lessee entitled to
vote for members of the board of directors, or (ii) all or substantially all of
the assets of Lessee and its Subsidiaries taken as a whole; or (b) during any
period of twelve (12) consecutive calendar months, individuals who are directors
of Lessee on the first day of such period ("Initial Directors") and any
directors of Lessee who are specifically approved by two-thirds of the Initial
1.01-5
73
Directors and previously-approved Directors shall cease to constitute a majority
of the Board of Directors of Lessee before the end of such period.
"Change of Law" shall have the meaning given to that term in Subparagraph
2.12(b) of the Participation Agreement.
"Closing Date" shall have the meaning given to that term in Subparagraph
2.01(a) of the Participation Agreement.
"Closing Date Appraisal" shall mean, with respect to any Tract of Property
(or any portion thereof) on or as of a recent date prior to the Closing Date, an
Appraisal that assesses at such time the Fair Market Value of such Tract of
Property (or such portion) on such date, as improved with any Existing
Improvements.
"Co-Agent" shall mean Banque Nationale de Paris.
"Collateral" shall mean the Property Collateral, the Cash Collateral and
all other property in which any Lessor Party has a Lien to secure any of the
Lessee Obligations.
"Commencement Date" shall have the meaning given to that term in
Subparagraph 2.02(a) of the Lease Agreement.
"Commitment" shall mean, with respect to any Participant at any time, such
Participant's Proportionate Share of the Total Commitment at such time.
"Commitment Extension Fee" shall have the meaning given to that term in
Subparagraph 2.04(c) of the Participation Agreement.
"Commitment Extension Request" shall have the meaning given to that term
in Subparagraph 2.09(a) of the Participation Agreement.
"Commitment Fees" shall have the meaning given to that term in
Subparagraph 2.04(b) of the Participation Agreement.
"Commitment Period" shall have the meaning given to that term in
Subparagraph 2.01(a) of the Participation Agreement.
"Commitment Termination Date" shall have the meaning given to that term in
Subparagraph 2.01(a) of the Participation Agreement.
"Completion" shall have the meaning given to that term in Subparagraph
3.05(b) of the Construction Agency Agreement. "Completed" and "Completion" shall
have comparable meanings.
"Completion Date" shall mean the first date on which all of the conditions
set forth in Subparagraph 3.05(c) of the Construction Agency Agreement are
satisfied.
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74
"Compliance Certificate" shall have the meaning given to that term in
Subparagraph 5.01(a) of the Participation Agreement.
"Condemnation" shall mean any condemnation, requisition, confiscation,
seizure or other taking or sale of the use, access, occupancy or other right in
or to all or any portion of any of the Property (whether wholly or partially,
temporarily or permanently), by or on account of any actual or threatened
eminent domain proceeding or other taking of action by any Governmental
Authority or other Person having the power of eminent domain, including an
action by any such Governmental Authority or Person to change the grade of, or
widen the streets adjacent to, such Property or alter the pedestrian or
vehicular traffic flow to such Property so as to result in change in access to
such Property, or by or on account of an eviction by paramount title or any
transfer made in lieu of any such proceeding or action. A "Condemnation" shall
be deemed to have occurred on the earliest of the dates that use, access,
occupancy or other right is taken.
"Conforming Bid" shall have the meaning given to that term in Subparagraph
3.02(c) of the Purchase Agreement.
"Construction Agency Agreement" shall have the meaning given to that term
in Subparagraph 2.01(a) of the Participation Agreement.
"Construction Agreements" shall have the meaning given to that term in
Paragraph 3.02 of the Construction Agency Agreements.
"Contingent Obligation" shall mean, with respect to any Person, (a) any
Guaranty Obligation of that Person; and (b) any direct or indirect obligation or
liability, contingent or otherwise, of that Person (i) in respect of any Surety
Instrument issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments, (ii) as a partner or
joint venturer in any partnership or joint venture, (iii) to purchase any
materials, supplies or other property from, or to obtain the services of,
another Person if the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other property, or for
such services, shall be made regardless of whether delivery of such materials,
supplies or other property is ever made or tendered, or such services are ever
performed or tendered, or (iv) in respect to any Rate Contract that is not
entered into in connection with a bona fide hedging operation that provides
offsetting benefits to such Person. The amount of any Contingent Obligation
shall (subject, in the case of Guaranty Obligations, to the last sentence of the
definition of "Guaranty Obligation") be deemed equal to the maximum reasonably
anticipated liability in respect thereof, and shall with respect to item (b)(iv)
of this definition be marked to market on a current basis.
"Contractual Obligation" of any Person shall mean, any indenture, note,
lease, loan agreement, security, deed of trust, mortgage, security agreement,
guaranty, instrument; contract, agreement or other form of contractual
obligation or undertaking to which such Person is a party or by which such
Person or any of its property is bound.
"Credit Event" shall mean the making of each Advance or the exercise of
the Partial Purchase Option or Marketing Option under the Purchase Agreement.
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75
"Current Appraisal" shall have the meaning given to that term in
Subparagraph 3.02(h) of the Purchase Agreement.
"Debt Service Coverage Ratio" shall mean, with respect to Lessee for any
period, the ratio, determined on a consolidated basis in accordance with GAAP,
of:
(a) The Adjusted Net Income of Lessee for such period;
to
(b) The sum of (i) all interest expenses of Lessee and its
Subsidiaries accruing during such period and (ii) the current maturities
of all long-term debt (or, in the case of Capital Leases, amounts
attributable to principal).
"Default" shall mean any Event of Default under the Lease Agreement or any
event or circumstance not yet constituting an Event of Default under the Lease
Agreement which, with the giving of any notice or the lapse of any period of
time or both, would become an Event of Default under the Lease Agreement.
"Defaulting Participant" shall mean a Participant which has failed to fund
its portion of any Advance which it is required to fund under the Participation
Agreement and has continued in such failure for three (3) Business Days after
written notice from Agent.
"Designated Purchaser" shall have the meaning given to that term in
Subparagraph 3.02(e) of the Purchase Agreement.
"Dollars" and "$" shall mean the lawful currency of the United States of
America and, in relation to any payment under the Operative Documents, same day
or immediately available funds.
"Eligible Assignee" shall mean (a) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined capital
and surplus of at least $500,000,000; (b) a commercial bank organized under the
laws of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having a combined capital and surplus of at least $500,000,000,
provided that such bank is acting through a branch or agency located in the
United States; or (c) a Person that is primarily engaged in the business of
commercial banking and that is (i) a Subsidiary of a Participant, (ii) a
Subsidiary of a Person of which a Participant is a Subsidiary, or (iii) a Person
of which a Participant is a Subsidiary.
"Employee Benefit Plan" shall mean any employee benefit plan within the
meaning of section 3(3) of ERISA maintained or contributed to by Lessee or any
ERISA Affiliate, other than a Multiemployer Plan.
"Environmental Laws" shall mean the Clean Air Act, 42 U.S.C. Section 7401
et seq.; the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et
seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901
et seq.; the Comprehensive Environment Response, Compensation and Liability Act
of 1980 (including the Superfund Amendments and
1.01-8
76
Reauthorization Act of 1986, "CERCLA"), 42 U.S.C. Section 9601 et seq.; the
Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Occupational
Safety and Health Act, 29 U.S.C. Section 651; the Emergency Planning and
Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq.; the Mine
Safety and Health Act of 1977, 30 U.S.C. Section 801 et seq.; the Safe Drinking
Water Act, 42 U.S.C. Section 300f et seq.; and all other Governmental Rules
relating to the protection of human health and the environment, including all
Governmental Rules pertaining to reporting, licensing, permitting,
transportation, storage, disposal, investigation, and remediation of emissions,
discharges, releases, or threatened releases of Hazardous Materials into the
air, surface water, groundwater, or land, or relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or
handling of Hazardous Materials.
"Equity Securities" of any Person shall mean (a) all common stock,
preferred stock, participations, shares, partnership interests or other equity
interests in and of such Person (regardless of how designated and whether or not
voting or non-voting) and (b) all warrants, options and other rights to acquire
any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
the same may from time to time be amended or supplemented, including any rules
or regulations issued in connection therewith.
"ERISA Affiliate" shall mean any Person which is treated as a single
employer with Lessee under Section 414 of the IRC.
"Event of Default" shall have the meaning given to that term in Paragraph
5.01 of the Lease Agreement.
"Executive Officer" shall mean any officer of Lessee designated by
Lessee's Board of Directors as a "reporting officer" under Section 16 of the
Securities Exchange Act of 1934.
"Exhibit B Supplement" shall have the meaning given to that term in
Subparagraph 2.03(b) of the Participation Agreement.
"Existing Improvements" shall mean (a) with respect to a particular Tract
of Land, all Improvements existing on such Land on the Acquisition Date therefor
and (b) with respect to all the Land, all such Improvements. Each reference to
"Existing Improvements" shall refer collectively to Existing Improvements with
respect to all the Land unless such reference specifically indicates that it
applies to a particular Tract.
"Expiration Date" shall mean the earlier of (a) the Scheduled Expiration
Date under the Lease Agreement, as such date may be extended pursuant to this
Agreement, and (b) the Termination Date for the Lease Agreement, if the Lease
Agreement is terminated prior to its Scheduled Expiration Date in accordance
with its terms.
"Expiration Date Appraisal" shall mean, with respect to any Tract of
Property (or any portion thereof) at any time, an Appraisal that assesses at
such time the Fair Market Value of such Tract of Property (or such portion) on
the Scheduled Expiration Date and as improved in
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77
accordance with the Plans and Specifications for all New Improvements, if any,
to be made to such Tract of Property (or such Portion).
"Expiration Date Purchase Option" shall have the meaning given to that
term in Subparagraph 3.01(b) of the Purchase Agreement.
"Fair Market Value" shall mean, with respect to any of the Property or any
portion thereof, the maximum reasonable amount (not less than zero) that would
be paid in cash in an arm's-length transaction between an informed and willing
purchaser and an informed and willing seller, neither of whom is under any
compulsion to purchase or sell, for the ownership of the Property or such
portion.
"FASB 13" shall mean Financial Accounting Standards Board Statement No.
13.
"Federal Funds Rate" shall mean, for any day, the rate per annum set forth
in the weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Board (including any such
successor publication, "H.15 (519)") for such day opposite the caption "Federal
Funds (Effective)". If on any relevant day, such rate is not yet published in
H.15 (519), the rate for such day shall be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m. Quotations for U.S.
Government Securities, or any successor publication, published by the Federal
Reserve Bank of New York (including any such successor publication, the
"Composite 3:30 p.m. Quotations") for such day under the caption "Federal Funds
Effective Rate". If on any relevant day, such rate is not yet published in
either H.15 (519) or the Composite 3:30 p.m. Quotations, the rate for such day
shall be the arithmetic means, as determined by Agent, of the rates quoted to
Agent for such day by three (3) Federal funds brokers of recognized standing
selected by Agent.
"Federal Reserve Board" shall mean the Board of Governors of the Federal
Reserve System.
"Financial Statements" shall mean, with respect to any accounting period
for any Person, statements of income, shareholders' equity and cash flows of
such Person for such period, and a balance sheet of such Person as of the end of
such period, setting forth in each case in comparative form figures for the
corresponding period in the preceding fiscal year if such period is less than a
full fiscal year or, if such period is a full fiscal year, corresponding figures
from the preceding annual audit, all prepared in reasonable detail and in
accordance with GAAP.
"Funded Indebtedness" of any Person shall mean, without duplication:
(a) All obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments and all other obligations of such
Person for borrowed money (including the then outstanding face amount of
"pre-acceptance" accounts receivable sold by KLA-Tencor Japan, Ltd. with
recourse);
(b) All obligations of such Person for the deferred purchase price
of property or services (including obligations under letters of credit and
other credit facilities which secure or finance such purchase price and
obligations under "synthetic" leases), other
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78
than trade payables incurred by such Person in the ordinary course of its
business on ordinary terms and not overdue;
(c) All obligations of such Person under conditional sale or other
title retention agreements with respect to property acquired by such
Person (to the extent of the value of such property if the rights and
remedies of the seller or lender under such agreement in the event of
default are limited solely to repossession or sale of such property); and
(d) All obligations of such Person as lessee under or with respect
to Capital Leases.
"GAAP" shall mean generally accepted accounting principles and practices
as in effect in the United States of America from time to time, consistently
applied.
"Governmental Authority" shall mean any domestic or foreign national,
state or local government, any political subdivision thereof, any department,
agency, authority or bureau of any of the foregoing, or any other entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, including, without limitation, the
Federal Deposit Insurance Corporation, the Federal Reserve Board, the
Comptroller of the Currency, any central bank or any comparable authority.
"Governmental Charges" shall mean taxes, levies, assessments, fees,
imposts, duties, licenses, recording charges, claims or other charges imposed by
any Governmental Authority.
"Governmental Rule" shall mean any law, rule, regulation, ordinance,
order, code, interpretation, judgment, decree, directive, guidelines, policy or
similar form of decision of any Governmental Authority.
"Guaranty Obligation" shall mean, with respect to any Person, any direct
or indirect liability of that Person with respect to any indebtedness, lease,
dividend, letter of credit or other obligation (the "primary obligations") of
another Person (the "primary obligor"), including any obligation of that Person,
whether or not contingent, (a) to purchase, repurchase or otherwise acquire such
primary obligations or any property constituting direct or indirect security
therefor, or (b) to advance or provide funds (i) for the payment or discharge of
any such primary obligation, or (ii) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency or any balance sheet item, level of income or financial condition of
the primary obligor, or (c) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such primary
obligation, or (d) otherwise to assure or hold harmless the holder of any such
primary obligation against loss in respect thereof. The amount of any Guaranty
Obligation shall be deemed equal to the stated or determinable amount of the
primary obligation in respect of which such Guaranty Obligation is made or, if
not stated or if indeterminable, the maximum reasonably anticipated liability in
respect thereof.
"Hazardous Materials" shall mean all chemical substances, pollutants,
contaminants or hazardous or toxic substances, materials or wastes, whether
solid, liquid, or gaseous in nature, and all other materials, substances and
wastes which are classified or regulated as "hazardous,"
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"toxic" or similar descriptions under any Environmental Law or which are
hazardous, toxic, harmful or dangerous to the environment or human health.
"Improvement/Expense Advance Request" shall have the meaning given to that
term in Subparagraph 2.03(b) of the Participation Agreement.
"Improvement/Expense Advances" shall have the meaning given to that term
in Subparagraph 2.01(a) of the Participation Agreement.
"Improvements" shall mean all buildings, structures, facilities, fixtures
and other improvements of every kind and description now or hereafter located on
any of the Land, including (a) all parking areas, roads, driveways, walks,
fences, walls, drainage facilities and other site improvements; (b) all water,
sanitary and storm sewer, drainage, electricity, steam, gas, telephone and other
utility equipment and facilities, all plumbing, lighting, heating, ventilating,
air-conditioning, refrigerating, incinerating, compacting, fire protection and
sprinkler, surveillance and security, public address and communications
equipment and systems, partitions, elevators, escalators, motors, machinery,
pipes, fittings and other items of equipment of every kind and description now
or hereafter located on such Land or attached to the Improvements thereto which
by the nature of their location thereon or attachment thereto are real property
under applicable law; and (c) all Modifications to such Land or its
Improvements, except for any Modifications removed by Lessee from the Property
pursuant to Subparagraph 3.10 of the Lease Agreement.
"Indebtedness" of any Person shall mean, without duplication:
(a) All obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments and all other obligations of such
Person for borrowed money (including obligations to repurchase receivables
and other assets sold with recourse);
(b) All obligations of such Person for the deferred purchase price
of property or services (including obligations under letters of credit and
other credit facilities which secure or finance such purchase price and
obligations under "synthetic" leases);
(c) All obligations of such Person under conditional sale or other
title retention agreements with respect to property acquired by such
Person (to the extent of the value of such property if the rights and
remedies of the seller or lender under such agreement in the event of
default are limited solely to repossession or sale of such property);
(d) All obligations of such Person as lessee under or with respect
to Capital Leases;
(e) All non-contingent payment or reimbursement obligations of
such Person under or with respect to Surety Instruments;
(f) All net obligations of such Person, contingent or otherwise,
under or with respect to Rate Contracts;
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80
(g) All Guaranty Obligations of such Person with respect to the
obligations of other Persons of the types described in clauses (a) - (f)
above; and
(h) All obligations of other Persons of the types described in
clauses (a) - (f) above to the extent secured by (or for which any holder
of such obligations has an existing right, contingent or otherwise, to be
secured by) any Lien in any property (including accounts and contract
rights) of such Person, even though such Person has not assumed or become
liable for the payment of such obligations.
"Indemnified Taxes" shall mean all income taxes, stamp taxes, sales taxes,
use taxes, rental taxes, gross receipts taxes, property (tangible and
intangible) taxes, franchise taxes, excise taxes, value added taxes, turnover
taxes, withholding taxes and other taxes and Governmental Charges, together with
any and all assessments, penalties, fines, additions and interest thereon,
except:
(a) Net income taxes and franchise taxes in lieu of net income
taxes imposed on any Lessor Party by:
(i) Its jurisdiction of organization;
(ii) A jurisdiction in which it maintains a lending office;
or
(iii) Any other jurisdiction in which such Lessor Party is
subject to such taxes by reason of an office or other property or
the employees, agents or independent contractors of such Lessor
Party in such jurisdiction the presence of which is not contemplated
by the Operative Documents (except to the extent such taxes are
imposed as a result of (A) the location, operation or use of any
portion or component of the Property in such jurisdiction, (B) the
location, presence, activities or place of business of Lessee, its
Affiliates or any Person claiming by, through or under Lessee (a
"Lessee Person") in such jurisdiction or (C) the making of any
payments from such jurisdiction by or on behalf of a Lessee Person);
Except, in each case, to the extent that such taxes exceed the amount of
such taxes that would have been imposed had the transactions contemplated
by the Participation Agreement been characterized as a loan (provided,
however, that this exclusion shall not be construed to prevent a payment
from being made on an after tax basis);
(b) Any tax or other Governmental Charge that has not become a
Lien on any of the Property and that Lessee is contesting pursuant to
Paragraph 3.12 of the Lease Agreement (but only while Lessee is so
contesting such tax or Governmental Charge);
(c) Any tax or other Governmental Charge that is imposed upon an
Indemnitee primarily as a result of the gross negligence or willful
misconduct of such Indemnitee itself (as opposed to gross negligence or
willful misconduct imputed to such Indemnitee), but not taxes or other
Governmental Charges imposed as a result of ordinary negligence of such
Indemnitee;
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81
(d) Any tax or other Governmental Charge to the extent it relates
to any act, event or omission that occurs with respect to the Property
after the termination of the Lease Agreement, redelivery or sale of the
Property in accordance with the terms of the Operative Documents and
payment by Lessee of all amounts due under the Operative Documents, unless
and to the extent such tax or Governmental Charge is attributable to
actions, omissions or events occurring in connection with the exercise of
remedies following an Event of Default; provided, that this exclusion
shall not apply to taxes or Governmental Charges that are related to or
arising from payments made under the Operative Documents, or events, acts
or omissions occurring or matters arising prior to or simultaneous with
the time set forth above; or
(e) Any tax which is a withholding tax if such tax is imposed in
respect of payments to a Lessor Party that is required to deliver a United
States Internal Revenue Service Form 1001 or 4224 if such form is not
effective to entitle such Lessor Party to receive payment under the
Operative Documents without deduction or withholding of United States
federal income tax as a result of an act or omission of such Lessor Party.
"Indemnitees" shall mean the Lessor Parties and their Affiliates and their
respective directors, officers, employees, agents, attorneys and advisors.
"Indemnity Amount" shall have the meaning given to that term in
Subparagraph 3.02(g) of the Purchase Agreement.
"Initial Acquisition Advances" shall have the meaning given to that term
in Subparagraph 2.03(a) of the Participation Agreement.
"Initial Bid" shall have the meaning given to that term in Subparagraph
3.02(b) of the Purchase Agreement.
"Initial Marketing Period" shall have the meaning given to that term in
Subparagraph 3.02(b) of the Purchase Agreement.
"Initial Property" shall mean the Tract 1 Property, the Tract 2 Property,
the Tract 3 Property and the Tract 5 Property.
"Insurance Requirements" shall mean all terms, conditions and requirements
imposed by the policies of insurance which Lessee is required to maintain by the
Operative Documents.
"Investment" of any Person shall mean any loan or advance of funds by such
Person to any other Person (other than advances to employees of such Person for
moving and travel expenses, drawing accounts and similar expenditures in the
ordinary course of business), any purchase or other acquisition of any Equity
Securities or Indebtedness of any other Person, any capital contribution by such
Person to or any other investment by such Person in any other Person (including
any Guaranty Obligations of such Person and any Indebtedness of such Person of
the type described in clause (h) of the definition of "Indebtedness" on behalf
of any other Person); provided, however, that Investments shall not include (a)
accounts receivable or other indebtedness owed by customers of such Person which
are current assets and arose from sales of
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82
inventory in the ordinary course of such Person's business or (b) prepaid
expenses of such Person incurred and prepaid in the ordinary course of business.
"IRC" shall mean the Internal Revenue Code of 1986.
"Issues and Profits" shall mean all present and future rents, royalties,
issues, profits, receipts, revenues, income, earnings and other benefits
accruing from any of the Land, Improvements or Appurtenant Rights (whether in
the form of accounts, chattel paper, instruments, documents, investment
property, general intangibles or otherwise) including all rents and other
amounts payable pursuant to any Subleases.
"Land" shall mean all lots, pieces, tracts or parcels of land described in
Exhibit A to the Lease Agreement and leased by Lessee pursuant to the Lease
Agreement.
"Lease Agreement" shall have the meaning given to that term in
Subparagraph 2.01(a) of the Participation Agreement.
"Lease Extension Request" shall have the meaning given to that term in
Subparagraph 2.09(b) of the Participation Agreement.
"Lease Reduction Payments" shall mean each of the following to the extent
applied to reduce the Outstanding Lease Amount pursuant to the Operative
Documents:
(a) Casualty and Condemnation Proceeds;
(b) The purchase price paid for the Property (or any portion
thereof) by Lessee, an Assignee Purchaser or a Designated Purchaser
pursuant to the Purchase Agreement;
(c) The Residual Value Guaranty and Indemnity Amount paid by
Lessee pursuant to the Purchase Agreement;
(d) Any proceeds received by Lessee from any sale of the Property
after the Expiration Date if such Property is retained by Lessor after
such Expiration Date pursuant to the applicable Purchase Agreement; and
(e) Any proceeds received by any Lessor Party from the exercise of
any of its remedies under the Operative Documents after the occurrence of
an Event of Default under the Lease Agreement.
"Lessee" shall mean KLA-Tencor Corporation, acting in its capacity as
Lessee under the Operative Documents.
"Lessee Obligations" shall mean and include all liabilities and
obligations owed by Lessee to any Lessor Party under any of the Operative
Documents of every kind and description and however arising (whether direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising), including the obligation of Lessee to pay Rent, to pay the
Residual Value Guaranty Amount, Indemnity Amount and/or Outstanding Lease Amount
and to
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83
pay all interest, fees, charges, expenses, attorneys' fees and accountants' fees
chargeable to Lessee or payable by Lessee under the Operative Documents.
"Lessee Security Documents" shall mean and include the Lease Agreement,
the Cash Collateral Agreement, the Assignment of Construction Agreements and all
other instruments, agreements, certificates, opinions and documents (including
Uniform Commercial Code financing statements and fixture filings and landlord
waivers) delivered to any Lessor Party in connection with any Collateral or to
secure the Lessee Obligations.
"Lessor" shall mean Lease Plan U.S.A., Inc., acting in its capacity as
Lessor under the Operative Documents.
"Lessor Deed of Trust" shall have the meaning given to that term in
Subparagraph 2.11(b) of the Participation Agreement.
"Lessor Liens" shall mean any Liens or other interests in any of the
Property of any Person other than Lessee or a Lessor Party arising as a result
of (a) any transfer or assignment by Lessor to such Person of any of Lessor's
interests in such Property in violation of any of the Operative Documents or (b)
any claim against Lessor by any such Person unrelated to any of the Operative
Documents or the transactions contemplated thereby. (Lessor Liens shall include
Liens granted by Lessor to Agent or any Participant to secure the Lessor
Obligations.)
"Lessor Obligations" shall mean and include all liabilities and
obligations owed by Lessor to Agent or any Participant under any of the
Operative Documents of every kind and description and however arising (whether
direct or indirect, absolute or contingent, due or to become due, now existing
or hereafter arising), including the obligation of Lessor to share payments made
by Lessee to Lessor under the Operative Documents as provided in Paragraph 2.06
of the Participation Agreement.
"Lessor Parties" shall mean Lessor, the Participants and Agent.
"Lessor Security Agreement" shall have the meaning given to that term in
Subparagraph 2.11(b) of the Participation Agreement.
"Liabilities" shall mean, with respect to Lessee at any time, the sum at
such time, determined on a consolidated basis in accordance with GAAP, of (a)
all liabilities of Lessee and its Subsidiaries that, in accordance with GAAP,
are reflected in the consolidated balance sheet of Lessee and its Subsidiaries
at such time, plus (b) the aggregate amount attributable to principal under all
"synthetic leases" of Lessee and its Subsidiaries, plus (c) the then outstanding
face amount of "pre-acceptance" accounts receivable sold by KLA- Tencor Japan,
Ltd. with recourse, plus (d) the face amount of all outstanding standby letters
of credit issued for the account of Lessor and its Subsidiaries, plus (e) any
direct or indirect obligation or liability of Lessor and its Subsidiaries as a
partner or joint venturer in any partnership or joint venture to the extent of
any pass-through liability, plus (f) any direct or indirect obligation or
liability of Lessor and its Subsidiaries in respect to any Rate Contract that is
not entered into in connection with a bona fide hedging operation that provides
offsetting benefits to Lessee and its Subsidiaries.
1.01-16
84
"Liabilities/Tangible Net Worth Ratio" shall mean, with respect to Lessee
at any time, the ratio, determined on a consolidated basis in accordance with
GAAP, of:
(a) The Liabilities of Lessee and its Subsidiaries at such time;
to
(b) The Tangible Net Worth of Lessee and its Subsidiaries at such
time.
"LIBO Rate" shall mean, with respect to any Rental Period for a Portion, a
rate per annum equal to the quotient (rounded upward if necessary to the nearest
1/100 of one percent) of (a) the arithmetic mean (rounded upward if necessary to
the nearest 1/16 of one percent) of the rates per annum appearing on the
Telerate Page 3750 (or any successor publication) on the second Business Day
prior to the first day of such Rental Period at or about 11:00 A.M. (London
time) (for delivery on the first day of such Rental Period) for a term
comparable to such Rental Period (or for a term of one (1) month for any Rental
Period that is less than one (1) month but is at least seven (7) days), divided
by (b) one minus the Reserve Requirement in effect from time to time. If for any
reason rates are not available as provided in clause (a) of the preceding
sentence, the rate to be used in clause (a) shall be, the rate per annum at
which Dollar deposits are offered by ABN AMRO to prime banks in the London
interbank market on the second Business Day prior to the first day of such
Rental Period at or about 11:00 A.M. (London time) (for delivery on the first
day of such Rental Period) in an amount substantially equal to ABN AMRO's
Proportionate Share of the applicable Portion and for a term comparable to such
Rental Period (or for a term of one (1) month for any Rental Period that is less
than one (1) month but is at least seven (7) days). The LIBO Rate shall be
adjusted automatically as of the effective date of any change in the Reserve
Requirement.
"LIBOR Rental Rate" shall mean, for any Rental Period and Portion, the per
annum rate equal to the LIBO Rate for such Rental Period and Portion, plus the
Applicable Margin, such rate to change from time to time during such period as
the Applicable Margin shall change.
"Lien" shall mean, with respect to any property, any security interest,
mortgage, pledge, lien, charge or other encumbrance in, of, or on such property
or the income therefrom, including the interest of a vendor or lessor under a
conditional sale agreement, Capital Lease, "synthetic" lease or other title
retention agreement, or any agreement to provide any of the foregoing, and the
filing of any financing statement or similar instrument under the Uniform
Commercial Code or comparable law of any jurisdiction.
"Major Casualty" shall mean, with respect to the Property, any Casualty
affecting such Property where (a) the damage to such Property is treated by any
insurer of such Property as a total loss; (b) such Property cannot reasonably be
repaired and restored to the condition in which it existed immediately prior to
such Casualty; or (c) the reasonably anticipated cost to repair and restore such
Property to the condition in which it existed immediately prior to such Casualty
would exceed twenty-five percent (25%) of the Outstanding Lease Amount.
"Major Condemnation" shall mean, with respect to the Property, any
Condemnation affecting such Property where (a) all or substantially all of such
Property is taken by such Condemnation; (b) such Property cannot reasonably be
repaired and restored to the condition in
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85
which it existed immediately prior to such Condemnation; or (c) the reasonably
anticipated cost to repair and restore such Property to the condition in which
it existed immediately prior to such Condemnation would exceed twenty-five
percent (25%) of the Outstanding Lease Amount.
"Majority Participants" shall mean (a) at any time the aggregate
Outstanding Lease Amount is greater than $0, Participants whose aggregate
Outstanding Participation Amounts equal or exceed fifty percent (50%) of the
aggregate Outstanding Lease Amount at such time and (b) at any time the
aggregate Outstanding Lease Amount is $0, Participants whose Proportionate
Shares equal or exceed fifty percent (50%).
"Margin Stock" shall have the meaning given to that term in Regulation U
issued by the Federal Reserve Board, as amended from time to time, and any
successor regulation thereto.
"Marketing Option" shall have the meaning given to that term in
Subparagraph 3.01(a) of the Purchase Agreement.
"Marketing Option Event of Default" shall mean any Event of Default other
than a Non-Marketing Option Event of Default.
"Material Adverse Effect" shall mean a material adverse effect on (a) the
business, assets, operations or financial or other condition of Lessee and its
Subsidiaries, taken as a whole; (b) the ability of Lessee to pay or perform the
Lessee Obligations in accordance with the terms of the Operative Documents; (c)
the rights and remedies of any Lessor Party under the Operative Documents or any
related document, instrument or agreement; or (d) the value of the Property and
the Collateral, any Lessor Party's security interests, Liens or other rights in
the Property and the Collateral or the perfection or priority of such security
interests, Liens or rights.
"Material Subsidiary" shall mean, as of any date, each Subsidiary of
Lessee whose assets on the last day of the immediately preceding fiscal year
equaled or exceeded five percent (5%) of the consolidated total assets of Lessee
and all of its Subsidiaries on such day. As used herein, "assets" shall mean the
net book value of assets calculated in accordance with GAAP.
"maturity" shall mean, with respect to any Rent, interest, fee or other
amount payable by Lessee under the Operative Documents, the date such Rent,
interest, fee or other amount becomes due, whether upon the stated maturity or
due date, upon acceleration or otherwise.
"Modifications" shall have the meaning given to that term in Subparagraph
3.01(c) of the Lease Agreement.
"Multiemployer Plan" shall mean any multiemployer plan within the meaning
of section 3(37) of ERISA maintained or contributed to by Lessee or any ERISA
Affiliate.
"Net Proceeds" shall mean, with respect to any sale or issuance of any
Equity Security or any other security by any Person, the aggregate consideration
received by such Person from such sale or issuance less the sum of the actual
amount of the customary fees and commissions payable to Persons other than such
Person or any Affiliate of such Person, the reasonable legal expenses and the
other customary costs and expenses directly related to such sale or issuance
that are to be paid by such Person.
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86
"New Improvements" shall mean (a) with respect to a particular Tract of
Land, all new Improvements to such Tract and its Existing Improvements
contemplated by the Plans and Specifications for such Tract delivered by Lessee
to Lessor and (b) with respect to all the Land, all such new Improvements. Each
reference to "New Improvements" shall refer collectively to New Improvements
with respect to all the Land unless such reference specifically indicates that
it applies to a particular Tract.
"Non-Marketing Option Event of Default" shall mean an Event of Default
arising only under Subparagraph 5.01(b) of the Lease Agreement and only as a
result of Lessee's failure to observe or perform a covenant, obligation,
condition or agreement set forth in Paragraph 5.03 of the Participation
Agreement.
"Notice of Expiration Date Purchase Option Exercise" shall have the
meaning given to that term in Paragraph 3.01 of the Purchase Agreement.
"Notice of Marketing Option Exercise" shall have the meaning given to that
term in Paragraph 3.01 of the Purchase Agreement.
"Notice of Partial Purchase Option Exercise" shall have the meaning given
to that term in Subparagraph 2.02(a) of the Purchase Agreement.
"Notice of Rental Period Selection" shall have the meaning given to that
term in Subparagraph 2.03(a) of the Lease Agreement.
"Notice of Term Purchase Option Exercise" shall have the meaning given to
that term in Subparagraph 2.01(a) of the Purchase Agreement.
"Operative Documents" shall mean and include the Participation Agreement,
the Lease Agreement, the Construction Agency Agreement, the Purchase Agreement,
the Lessee Security Documents, the Lessor Deed of Trust, the Lessor Security
Agreement, the Assignment of Lease and the Agent's Fee Letter; all other
notices, requests, certificates, documents, instruments and agreements delivered
to any Lessor Party pursuant to Paragraph 3.01 or 3.02 of the Participation
Agreement; and all notices, requests, certificates, documents, instruments and
agreements delivered to any Lessor Party in connection with any of the foregoing
on or after the date of the Participation Agreement. (Without limiting the
generality of the preceding definition, the term "Operative Documents" shall
include all written waivers, amendments and modifications to any of the notices,
requests, certificates, documents, instruments and agreements referred to
therein.)
"Outside Completion Date" shall have the meaning given to that term in
Subparagraph 2.01(a) of the Participation Agreement.
"Outstanding Lease Amount" shall mean, on any date, the remainder of (a)
the sum of all Advances made by Lessor on or prior to such date, minus (b) the
sum of all Lease Reduction Payments applied by Lessor on or prior to such date.
"Outstanding Participation Amount" shall mean, with respect to any
Participant on any date, the remainder of (a) the sum of the portions of all
Advances funded by such Participant on
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or prior to such date, minus (b) the sum of such Participant's share of all
Lease Reduction Payments applied to the Outstanding Lease Amount on or prior to
such date.
"Outstanding Tranche A Participation Amount" shall mean, with respect to
any Tranche A Participant on any date, the remainder of (a) such Participant's
Tranche A Portion of all Advances made by Lessor on or prior to such date, minus
(b) such Participant's share of all Lease Reduction Payments applied to the
Tranche A Portion of the Advances on or prior to such date.
"Outstanding Tranche B Participation Amount" shall mean, with respect to
any Tranche B Participant on any date, the remainder of (a) such Participant's
Tranche B Portion of all Advances made by Lessor on or prior to such date, minus
(b) such Participant's share of all Lease Reduction Payments applied to the
Tranche B Portion of the Advances on or prior to such date.
"Outstanding Tranche C Participation Amount" shall mean, with respect to
any Tranche C Participant on any date, the remainder of (a) such Participant's
Tranche C Portion of all Advances made by Lessor on or prior to such date, minus
(b) such Participant's share of all Lease Reduction Payments applied to the
Tranche C Portion of the Advances on or prior to such date.
"Partial Purchase Date" shall have the meaning given to that term in
Subparagraph 2.02(a) of the Purchase Agreement.
"Partial Purchase Option" shall have the meaning given to that term in
Paragraph 2.02 of the Purchase Agreement.
"Participants" shall mean the financial institutions from time to time
listed in Schedule I to the Participation Agreement (as amended from time to
time pursuant to Subparagraph 7.05(b) of the Participation Agreement or
otherwise), acting in their capacities as Participants under the Operative
Documents.
"Participation Agreement" shall mean the Participation Agreement, dated as
of November 12, 1997 among Lessee and the Lessor Parties.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Permitted Improvement Costs" shall mean all reasonable costs and expenses
necessary for the construction of the New Improvements to the Tract 1 Land,
Tract 3 Land, Tract 4 Land and Tract 5 Land (not including the costs of the
Land, the Existing Improvements and the other Property to be acquired for the
Acquisition Prices paid by Lessor for the Tract 1 Property, Tract 3 Property,
Tract 4 Property and Tract 5 Property on the Acquisition Dates therefor),
including:
(a) All reasonable costs and expenses of building supplies and
materials necessary for the construction of the New Improvements;
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(b) All reasonable costs and expenses of architects, engineers,
contractors and other Persons providing labor and services necessary for
the construction of the New Improvements; and
(c) All reasonable costs and expenses of performance and other
bonds and other insurance necessary for the construction of the New
Improvements.
"Permitted Liens" shall have the meaning given to that term in
Subparagraph 5.02(a) of the Participation Agreement.
"Permitted Property Liens" shall have the meaning given to that term in
Subparagraph 3.07(a) of such Lease Agreement.
"Permitted Transaction Expenses" shall mean the following costs and
expenses to the extent payable by Lessee in connection with and directly related
to the preparation, execution and delivery of the Operative Documents and the
transactions contemplated thereby:
(a) The reasonable fees and expenses of counsel for Lessee
incurred in connection with the preparation, negotiation, execution and
delivery of the Operative Documents;
(b) The reasonable fees and expenses of counsel for each of Lessor
and Agent incurred in connection with the preparation, negotiation,
execution and delivery of the Operative Documents;
(c) The reasonable fees and expenses incurred in recording,
registering or filing any of the Operative Documents;
(d) The title fees, premiums and escrow costs and other expenses
relating to title insurance and the closing of the transactions
contemplated by the Operative Documents;
(e) The reasonable fees and expenses of required environmental
audits and appraisals;
(f) The reasonable fees and expenses of consultants and
accountants for Lessee;
(g) The reasonable fees and expenses for surveys; and
(h) Other related reasonable fees and expenses.
"Person" shall mean and include an individual, a partnership, a
corporation (including a business trust), a joint stock company, an
unincorporated association, a limited liability company, a joint venture, a
trust or other entity or a Governmental Authority.
"Personal Property Collateral" shall have the meaning given to that term
in Subparagraph 2.07(b) of the Lease Agreement.
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"Phase IIA Participants" shall have the meaning given to that term in
Recital A to the Participation Agreement.
"Phase IIA Participation Agreement" shall have the meaning given to that
term in Recital A to the Participation Agreement.
"Phase IIA Lease Agreement" shall have the meaning given to that term in
Recital A to the Participation Agreement.
"Phase IIA Termination Payment" shall have the meaning given to that term
in Subparagraph 2.01(a) of the Participation Agreement.
"Phase IIB Participants" shall have the meaning given to that term in
Recital B to the Participation Agreement.
"Phase IIB Participation Agreement" shall have the meaning given to that
term in Recital B to the Participation Agreement.
"Phase IIB Lease Agreement" shall have the meaning given to that term in
Recital B to the Participation Agreement.
"Phase IIB Termination Payment" shall have the meaning given to that term
in Subparagraph 2.01(a) of the Participation Agreement.
"Phase II Lease Agreements" shall have the meaning given to that term in
Recital C to the Participation Agreement.
"Phase II Participants" shall have the meaning given to that term in
Recital C to the Participation Agreement.
"Phase II Termination Payments" shall have the meaning given to that term
in Subparagraph 2.03(a) of the Participation Agreement.
"Plans and Specifications" shall mean, with respect to the Tract 1 Land,
Tract 3 Land, Tract 4 Land or Tract 5 Land, the architectural, engineering and
construction plans, specifications and drawings for the new improvements (which
improvements may consist of a building shell or interior improvements only), if
any, to be constructed on such Tract pursuant to the Operative Documents, as
delivered to Lessor pursuant to clause (iii) of Subparagraph 2.01(b) and
Paragraph 3.03 of the Participation Agreement, as such plans, specifications and
drawings may thereafter be revised, amended, supplemented or modified pursuant
to Paragraph 3.01 of the Construction Agency Agreement. Each reference to "Plans
and Specifications" shall refer collectively to the Plans and Specifications
with respect to all the Land unless such reference specifically indicates that
it applies to a particular Tract.
"Portion" shall mean a portion of the Outstanding Lease Amount. If, at any
time, Lessee has not elected to divide the Outstanding Lease Amount into two or
more portions, any reference to a Portion shall mean the total Outstanding Lease
Amount at such time.
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"Pricing Grid" shall mean Schedule II to the Participation Agreement.
"Pricing Period" shall mean (a) the period commencing on the date of this
Agreement and ending on December 31, 1997, (b) the three-calendar month period
commencing January 1, 1998 and ending March 31, 1998 and (c) each consecutive
three-calendar month period thereafter which commences on the day following the
last day of the immediately preceding three-calendar month period and ends on
the last day of that time period.
"Prime Rate" shall mean the per annum rate publicly announced by ABN AMRO
from time to time at its Chicago Office. The Prime Rate is determined by ABN
AMRO from time to time as a means of pricing credit extensions to some customers
and is neither directly tied to any external rate of interest or index nor
necessarily the lowest rate of interest charged by ABN AMRO at any given time
for any particular class of customers or credit extensions. Any change in the
Base Rate resulting from a change in the Prime Rate shall become effective on
the Business Day on which each change in the Prime Rate occurs.
"Property" shall have the meaning given to that term in Paragraph 2.01 of
the Lease Agreement.
"Property Collateral" shall have the meaning given to that term in
Subparagraph 2.11(a) of the Participation Agreement.
"Proportionate Share" shall mean, with respect to each Participant, the
percentage set forth under the caption "Proportionate Share" opposite such
Participant's name on Part A of Schedule I, or, if changed, such percentage as
may be set forth for such Participant in the Register. The Proportionate Share
of each Participant shall equal the sum of such Participant's Tranche A
Proportionate Share, Tranche B Proportionate Share and Tranche C Proportionate
Share.
"Purchase Agreement" shall have the meaning given to that term in
Subparagraph 2.01(a) of the Participation Agreement.
"Purchase Documents" shall have the meaning given to that term in
Subparagraph 4.01(a) of the Purchase Agreement.
"Purchaser" shall have the meaning given to that term in Subparagraph
4.01(b) of the Purchase Agreement.
"Quick Assets" shall mean, with respect to any Person at any time, the sum
at such time (without duplication) of such Person's cash, cash equivalents, net
accounts receivable, short-term investments and marketable securities.
"Quick Ratio" shall mean, with respect to Lessee at any time, the ratio,
determined on a consolidated basis in accordance with GAAP, of:
(a) The Quick Assets of Lessee and its Subsidiaries at such time;
to
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(b) The current liabilities of Lessee and its Subsidiaries at such
time.
"Rate Contracts" shall mean swap agreements (as that term is defined in
Section 101 of the Federal Bankruptcy Reform Act of 1978, as amended) and any
other agreements or arrangements designed to provide protection against
fluctuations in interest or currency exchange rates.
"Real Property Collateral" shall have the meaning given to that term in
Subparagraph 2.07(a) of the Lease Agreement.
"Register" shall have the meaning given to that term in Subparagraph
7.05(b) of the Participation Agreement.
"Related Agreements" shall mean all chattel paper, accounts, instruments,
documents, investment property and general intangibles relating to any of the
Land, Improvements or Appurtenant Rights or to the present or future
development, construction, operation or use of any of the Land, Improvements or
Appurtenant Rights, including (a) all plans, specifications, construction
agreements, maps, surveys, studies, books of account, records, files, insurance
policies, guarantees and warranties relating to such Land or Improvements or to
the present or future development, construction, operation or use of such Land,
Improvements or Appurtenant Rights (including the Construction Agreements and
the Plans and Specifications); (b) all architectural, engineering, construction
and management contracts, all supply and service contracts for water, sanitary
and storm sewer, drainage, electricity, steam, gas, telephone and other
utilities relating to such Land, Improvements or Appurtenant Rights or to the
present or future development, construction, operation or use of such Land,
Improvements or Appurtenant Rights; and (c) all computer software and
intellectual property, guaranties and warranties, letters of credit, and
documents relating to such Land, Improvements or Appurtenant Rights or to the
present or future development, construction, operation or use of such Land,
Improvements or Appurtenant Rights.
"Related Goods" shall mean:
(a) All machinery, furniture, equipment, fixtures and other goods
and tangible personal property (including construction materials and
supplies) financed by any Advance, including all such property described
in Exhibit B to the Lease Agreement and in each Exhibit B Supplement
delivered by Lessee; and
(b) All machinery, equipment, fixtures and other goods and
tangible personal property (including construction materials and supplies)
now or hereafter made part of or used in connection with the construction,
reconstruction, repair, replacement, alteration, addition, or improvement
of or to any of the Improvements to the Property or any of the Related
Goods described in the preceding clause (a), except for any such property
which may be removed by Lessee from the Property pursuant to Paragraph
3.10 of the Lease Agreement.
"Related Permits" shall mean all licenses, authorizations, certificates,
variances, consents, approvals and other permits, now or hereafter pertaining to
any of the Land,
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Improvements or Appurtenant Rights and all tradenames or business names relating
to any of the Land, Improvements or Appurtenant Rights or the present or future
development, construction, operation or use of any of the Land, Improvements or
Appurtenant Rights.
"Rent" shall mean collectively Base Rent and Supplemental Rent.
"Rental Periods" shall mean, with respect to any Portion, the time period
selected by Lessee pursuant to Subparagraph 2.03(a) or Subparagraph 2.03(b) of
the Participation Agreement or Subparagraph 2.03(a ) of the Lease Agreement
which commences on the first day of such Portion and ends on the last day of
such time period, and thereafter, each subsequent time period selected by Lessee
pursuant to Subparagraph 2.03(a) of the Lease Agreement which commences on the
last day of the immediately preceding time period and ends on the last day of
that time period.
"Rental Rate" shall have the meaning given to that term in Subparagraph
2.03(a) of the Lease Agreement.
"Repair and Restoration Account" shall have the meaning given to that term
in Subparagraph 3.04(c) of the Lease Agreement.
"Reportable Event" shall have the meaning given to that term in ERISA and
applicable regulations thereunder.
"Required Participants" shall mean (a) at any time the aggregate
Outstanding Lease Amount is greater than $0, Participants whose aggregate
Outstanding Participation Amounts equal or exceed sixty-six and two-thirds
percent (66-2/3%) or more of the aggregate Outstanding Lease Amount at such time
and (b) at any time the aggregate Outstanding Lease Amount is $0, Participants
whose Proportionate Shares equal or exceed sixty-six and two-thirds percent
(66-2/3%).
"Requirement of Law" applicable to any Person shall mean (a) the Articles
or Certificate of Incorporation and By-laws, Partnership Agreement or other
organizational or governing documents of such Person, (b) any Governmental Rule
applicable to such Person, (c) any license, permit, approval or other
authorization granted by any Governmental Authority to or for the benefit of
such Person or (d) any judgment, decision or determination of any Governmental
Authority or arbitrator, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
"Reserve Requirement" shall mean, with respect to any day in any Rental
Period, the aggregate of the reserve requirement rates (expressed as a decimal)
in effect on such day for eurocurrency funding (currently referred to as
"Eurocurrency liabilities" in Regulation D of the Federal Reserve Board)
maintained by a member bank of the Federal Reserve System. As used herein, the
term "reserve requirement" shall include, without limitation, any basic,
supplemental or emergency reserve requirements imposed on any Participant by any
Governmental Authority.
"Residual Value Guaranty Amount" shall have the meaning given to that term
in Subparagraph 3.02(g) of the Purchase Agreement.
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"Scheduled Expiration Date" shall have the meaning given to that term in
Subparagraph 2.02(a) of the Lease Agreement.
"Scheduled Rent Payment Date" shall have the meaning given to that term in
Subparagraph 2.03(a) of the Lease Agreement.
"Secondary Marketing Period" shall have the meaning given to that term in
Subparagraph 3.02(b) of the Purchase Agreement.
"Seller" shall mean:
(a) With respect to the Tract 2 Land and Improvements, BNP Leasing
Corporation;
(b) With respect to the Tract 3 Improvements, BNP Leasing
Corporation; and
(c) With respect to the Tract 4 Land and Improvements, Amdahl
Corporation.
"Senior Funded Indebtedness/Capital Ratio" shall mean, with respect to
Lessee at any time, the ratio, determined on a consolidated basis in accordance
with GAAP, of:
(a) The remainder of (i) all Funded Indebtedness of Lessee and its
Subsidiaries at such time minus (ii) all such Funded Indebtedness that is
subordinated to the Lessee Obligations on terms acceptable to Lessor and
the Required Participants;
to
(b) The sum of (i) the net worth of Lessee and its Subsidiaries at
such time plus (ii) all Funded Indebtedness of Lessee and its Subsidiaries
at such time.
"Solvent" shall mean, with respect to any Person on any date, that on such
date (a) the fair value of the property of such Person is greater than the fair
value of the liabilities (including, without limitation, contingent liabilities)
of such Person, (b) the present fair saleable value of the assets of such Person
is not less than the amount that will be required to pay the probable liability
of such Person on its debts as they become absolute and matured, (c) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and liabilities
mature and (d) such Person is not engaged in business or a transaction, and is
not about to engage in business or a transaction, for which such Person's
property would constitute an unreasonably small capital.
"Subleases" shall mean all leases and subleases of any of the Land,
Improvements and/or Appurtenant Rights by Lessee as lessor or sublessor, now or
hereafter in effect, whether or not of record, including all guaranties and
security therefor and the right to bring actions and proceedings thereunder or
for the enforcement thereof and to do anything which Lessee is or may become
entitled to do thereunder.
"Subparticipants" shall have the meaning given to that term in
Subparagraph 7.05(c) of the Participation Agreement.
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94
"Subsidiary" of any Person shall mean (a) any corporation of which more
than 50% of the issued and outstanding Equity Securities having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by one or
more of such Person's other Subsidiaries and (b) any partnership, joint venture,
or other association of which more than 50% of the equity interest having the
power to vote, direct or control the management of such partnership, joint
venture or other association is at the time owned and controlled by such Person,
by such Person and one or more of the other Subsidiaries or by one or more of
such Person's other Subsidiaries.
"Supplemental Rent" shall have the meaning given to such term in
Subparagraph 2.03(b) of the Lease Agreement.
"Surety Instruments" shall mean all letters of credit (including standby
and commercial), banker's acceptances, bank guaranties, shipside bonds, surety
bonds and similar instruments.
"Tangible Net Worth" shall mean, with respect to Lessee at any time, the
remainder at such time, determined on a consolidated basis in accordance with
GAAP, of (a) the total assets of Lessee and its Subsidiaries, minus (b) the sum
(without limitation and without duplication of deductions) of (i) the total
liabilities of Lessee and its Subsidiaries, (ii) all reserves established by
Lessee and its Subsidiaries for anticipated losses and expenses (to the extent
not deducted in calculating total assets in clause (a) above) and (iii) all
intangible assets of Lessee and its Subsidiaries (to the extent included in
calculating total assets in clause (a) above), including, without limitation,
goodwill (including any amounts, however designated on the balance sheet,
representing the cost of acquisition of businesses and investments in excess of
underlying tangible assets), trademarks, trademark rights, trade name rights,
copyrights, patents, patent rights, licenses, unamortized debt discount,
marketing expenses, organizational expenses, non-compete agreements and deferred
research and development.
"Term" shall mean the period beginning on the Commencement Date of the
Lease Agreement and ending on the Expiration Date of the Lease Agreement.
"Termination Date" shall mean (a) the date set forth in a Notice of Term
Purchase Option as the Scheduled Rent Payment Date on which the Lease Agreement
will be terminated by Lessee pursuant to Paragraph 4.01 of the Lease Agreement
and the Property will be purchased by Lessee pursuant to Section II of the
Purchase Agreement or (b) the date set forth in a written notice delivered by
Lessor to Lessee pursuant to Subparagraph 5.03(a) or 5.04(a) of the Lease
Agreement after the occurrence of an Event of Default thereunder as the date on
which the Lease Agreement will be terminated.
"Term Purchase Option" shall have the meaning given to that term in
Paragraph 2.01 of the Purchase Agreement.
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"Total Commitment" shall mean the amount set forth as such in Subparagraph
2.01(b) of the Participation Agreement or, if such amount is reduced pursuant to
Subparagraph 2.08(a) of the Participation Agreement, the amount to which so
reduced.
"Tract" shall mean:
(a) With respect to any land, the lots, pieces, parcels and tracts
of land described in each Part of Exhibit A to each Lease Agreement or
Exhibit A to the Participation Agreement, as the case may be; and
(b) With respect to any Property, a Tract of land, together with
all Property related to such Tract of land.
"Tract 1 Land," "Tract 2 Land," "Tract 3 Land," "Tract 4 Land" and "Tract 5 Land
shall mean the lots, pieces, parcels and tracts of land described in Part 1,
Part 2, Part 3, Part 4 and Part 5, respectively, of Exhibit A to the
Participation Agreement. Any reference to the Tract 3 Property shall mean the
leasehold interest in the Tract 3 Land and all other Property related to the
Tract 3 Land.
"Tract 3 Ground Lease Agreement" shall have the meaning given to that term
in Schedule 3.01 to the Participation Agreement.
"Tract 4 Acquisition Advance" shall have the meaning given to that term in
Subparagraph 2.03(a) of the Participation Agreement.
"Tract 4 Acquisition Date" shall have the meaning given to that term in
Subparagraph 2.01(a) of the Participation Agreement.
"Tranche A Participant" shall mean, at any time, any Participant having an
Outstanding Tranche A Participation Amount at such time.
"Tranche A Percentage" shall mean, with respect to each Participant, the
percentage set forth under the caption "Tranche A Percentage" opposite such
Participant's name on Part A of Schedule I, or, if changed, such percentage as
may be set forth for such Participant in the Register.
"Tranche A Portion" shall mean, (a) with respect to any Advance without
reference to any Participant, the portion of such Advance equal to the Tranche A
Proportionate Share of such Advance and (b) with respect to any Advance with
reference to any Participant, the portion of such Advance equal to such
Participant's Tranche A Percentage of such Advance.
"Tranche A Proportionate Share" shall mean eighty-four percent (84%).
"Tranche B Participant" shall mean, at any time, any Participant having an
Outstanding Tranche B Participation Amount at such time.
"Tranche B Percentage" shall mean, with respect to each Participant, the
percentage set forth under the caption "Tranche B Percentage" opposite such
Participant's name on Part A of
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Schedule I, or, if changed, such percentage as may be set forth for such
Participant in the Register.
"Tranche B Portion" shall mean, (a) with respect to any Advance without
reference to any Participant, the portion of such Advance equal to the Tranche B
Proportionate Share of such Advance and (b) with respect to any Advance with
reference to any Participant, the portion of such Advance equal to such
Participant's Tranche B Percentage of such Advance.
"Tranche B Proportionate Share" shall mean thirteen percent (13%).
"Tranche C Participant" shall mean, at any time, any Participant having an
Outstanding Tranche C Participation Amount at such time.
"Tranche C Percentage" shall mean, with respect to each Participant, the
percentage set forth under the caption "Tranche C Percentage" opposite such
Participant's name on Part A of Schedule I, or, if changed, such percentage as
may be set forth for such Participant in the Register.
"Tranche C Portion" shall mean, (a) with respect to any Advance without
reference to any Participant, the portion of such Advance equal to the Tranche C
Proportionate Share of such Advance and (b) with respect to any Advance with
reference to any Participant, the portion of such Advance equal to such
Participant's Tranche C Percentage of such Advance.
"Tranche C Proportionate Share" shall mean three percent (3%).
"Unused" shall mean with respect to the Total Commitment at any time, the
remainder of (a) the Total Commitment at such time minus (b) the aggregate
amount of all Advances made prior to such time.
"Wholly-Owned Subsidiary" shall mean a Subsidiary of Lessee in which
Lessee owns, directly or indirectly, all of the issued and outstanding stock,
except for (a) directors' qualifying shares and (b) any shares issued to comply
with local ownership legal requirements.
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SCHEDULE 1.02
RULES OF CONSTRUCTION
(a) GAAP. Unless otherwise indicated in any Operative Document, all
accounting terms used in the Operative Documents shall be construed, and all
accounting and financial computations thereunder shall be computed, in
accordance with GAAP. If GAAP changes after the date of the Participation
Agreement such that any covenants contained in the Operative Documents would
then be calculated in a different manner or with different components, Lessee
and the Lessor Parties agree to negotiate in good faith to amend the applicable
Operative Documents in such respects as are necessary to conform those covenants
as criteria for evaluating Lessee's financial condition to substantially the
same criteria as were effective prior to such change in GAAP; provided, however,
that, until Lessee and the Lessor Parities so amend the Operative Documents, all
such covenants shall be calculated in accordance with GAAP as in effect
immediately prior to such change.
(b) Headings. Headings in each of the Operative Documents are for
convenience of reference only and are not part of the substance thereof.
(c) Plural Terms. All terms defined in any Operative Document in the
singular form shall have comparable meanings when used in the plural form and
vice versa.
(d) Time. All references in each of the Operative Documents to a time of
day shall mean San Francisco, California time, unless otherwise indicated. All
references in each of the Operative Documents to a date (the "action date")
which is one month prior to or after another date (the "reference date") shall
mean the date in the immediately preceding or succeeding calendar month (as the
case may be) which numerically corresponds to the reference date; provided,
however, that (i) if such corresponding date in the immediately preceding or
succeeding calendar month (as the case may be) is not a Business Day, the action
date shall be the next succeeding Business Day after such corresponding date
(unless, in the case of a Rental Period, such next Business Day falls in another
calendar month, in which case the action date shall be the immediately preceding
Business Day) and (ii) if the reference date is the last Business Day of a
calendar month (or a day for which there is no numerically corresponding day in
the immediately preceding calendar month) the action date shall be the last
Business Day of the immediately preceding or succeeding calendar month (as the
case may be). All references in each of the Operative Documents to an earlier
date which is two or more months prior to a reference date or to a later date
which is two or more months after a reference date shall be determined in a
comparable manner.
(e) Governing Law. Unless otherwise provided in any Operative Document,
each of the Operative Documents shall be governed by and construed in accordance
with the laws of the State of California without reference to conflicts of law
rules.
(f) Construction. The Operative Documents are the result of negotiations
among, and have been reviewed by Lessee and each Lessor Party and their
respective counsel.
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98
Accordingly, the Operative Documents shall be deemed to be the product of all
parties hereto, and no ambiguity shall be construed in favor of or against
Lessee or any Lessor Party.
(g) Entire Agreement. The Operative Documents, taken together,
constitute and contain the entire agreement of Lessee and the Lessor Parties and
supersede any and all prior agreements, negotiations, correspondence,
understandings and communications among the parties, whether written or oral,
respecting the subject matter thereof (including the commitment letter dated as
of May 9, 1997 between Lessee and Agent.
(h) Calculation of Base Rent, Interest and Fees. All calculations of
Base Rent, interest and fees under the Operative Documents for any period (i)
shall include the first day of such period and exclude the last day of such
period and (ii) shall be calculated on the basis of a year of 360 days for
actual days elapsed, except that during any period that Base Rent or any
interest is to be calculated based upon the Base Rate, such Base Rent or
interest shall be calculated on the basis of a year of 365 or 366 days, as
appropriate, for actual days elapsed.
(i) References.
(i) References in any Operative Document to "Recitals,"
"Sections," "Paragraphs," "Subparagraphs," "Articles," "Exhibits" and
"Schedules" are to recitals, sections, paragraphs, subparagraphs,
articles, exhibits and schedules therein and thereto unless otherwise
indicated.
(ii) References in any Operative Document to any document,
instrument or agreement (A) shall include all exhibits, schedules and
other attachments thereto, (B) shall include all documents, instruments or
agreements issued or executed in replacement thereof, and (C) shall mean
such document, instrument or agreement, or replacement or predecessor
thereto, as amended, modified and supplemented from time to time and in
effect at any given time.
(iii) References in any Operative Document to any Governmental Rule
(A) shall include any successor Governmental Rule, (B) shall include all
rules and regulations promulgated under such Governmental Rule (or any
successor Governmental Rule), and (C) shall mean such Governmental Rule
(or successor Governmental Rule) and such rules and regulations, as
amended, modified, codified or reenacted from time to time and in effect
at any given time.
(iv) References in any Operative Document to any Person in a
particular capacity (A) shall include any permitted successors to and
assigns of such Person in that capacity and (B) shall exclude such Person
individually or in any other capacity.
(j) Other Interpretive Provisions. The words "hereof," "herein" and
"hereunder" and words of similar import when used in any Operative Document
shall refer to such Operative Document as a whole and not to any particular
provision of such Operative Document. The words "include" and "including" and
words of similar import when used in any Operative Document shall not be
construed to be limiting or exclusive. In the event of any inconsistency between
the terms of the Participation Agreement and the terms of any other Operative
Document, the terms of the Participation Agreement shall govern.
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SCHEDULE 3.01
CONDITIONS PRECEDENT TO INITIAL ACQUISITION ADVANCES
A. PRINCIPAL OPERATIVE DOCUMENTS.
(1) The Participation Agreement, duly executed by Lessee, Lessor,
each Participant and Agent;
(2) The Lease Agreement (covering the Initial Property), duly
executed by Lessee and Lessor and appropriately notarized;
(3) The Purchase Agreement (covering the Initial Property), duly
executed by Lessee and Lessor;
(4) The Construction Agency Agreement (covering the Tract 1
Property, the Tract 3 Property and the Tract 5 Property), duly executed by
Lessee and Lessor;
(5) The Assignment of Lease (covering the Initial Property), duly
executed by Lessor and appropriately notarized;
(6) The Lessor Deed of Trust (covering the Initial Property), duly
executed by Lessor and appropriately notarized;
(7) The Lessor Security Agreement, duly executed by Lessor; and
(8) The Assignment of Construction Agreements, duly executed by
Lessee.
B. LESSEE CORPORATE DOCUMENTS.
(1) The Certificate or Articles of Incorporation of Lessee,
certified as of a recent date prior to the Closing Date by the Secretary
of State (or comparable official) of its jurisdiction of incorporation;
(2) A Certificate of Good Standing (or comparable certificate) for
Lessee, certified as of a recent date prior to the Closing Date by the
Secretary of State (or comparable official) of its jurisdiction of
incorporation;
(3) A certificate of the Secretary or an Assistant Secretary of
Lessee, dated the Closing Date, certifying (a) that attached thereto is a
true and correct copy of the Bylaws of Lessee as in effect on the Closing
Date; (b) that attached thereto are true and correct copies of resolutions
duly adopted by the Board of Directors of Lessee and continuing in effect,
which authorize the execution, delivery and performance by Lessee of the
Operative Documents executed or to be executed by Lessee and the
consummation of the
3.01-1
100
transactions contemplated thereby; and (c) that there are no proceedings
for the dissolution or liquidation of Lessee;
(4) A certificate of the Secretary or an Assistant Secretary of
Lessee, dated the Closing Date, certifying the incumbency, signatures and
authority of the officers of Lessee authorized to execute, deliver and
perform the Operative Documents and all other documents, instruments or
agreements related thereto executed or to be executed by Lessee; and
(5) A Certificate of Good Standing for Lessee, certified as of a
recent date prior to the Closing Date by the Secretary of State (or
comparable official) of California.
C. FINANCIAL STATEMENTS, FINANCIAL CONDITION, ETC.
(1) A copy of the unaudited Financial Statements of Lessee and its
Subsidiaries for the fiscal quarter ended September 30, 1997 and for the
fiscal year to such date (prepared on a consolidated and consolidating
basis), certified by the chief financial officer of Lessee to present
fairly the financial condition, results of operations and other
information reflected therein and to have been prepared in accordance with
GAAP (subject to normal year-end audit adjustments);
(2) A copy of the audited consolidated Financial Statements of
Lessee for the fiscal year ended June 30, 1997 prepared by Price
Waterhouse LLP and a copy of the unqualified opinion delivered by such
accountants in connection with such Financial Statements;
(3) A copy of the 10-K report filed by Lessee with the Securities
and Exchange Commission for the fiscal year ended June 30, 1997;
(4) Such other financial, business and other information regarding
Lessee, or any of its Subsidiaries as Agent or any Participant may
reasonably request, including information as to possible contingent
liabilities, tax matters, environmental matters and obligations for
employee benefits and compensation.
D. COLLATERAL DOCUMENTS.
(1) A grant deed transferring fee title in the Tract 2 Property to
Lessor, duly executed by the Seller thereof and appropriately notarized;
(2) A Ground Lease Agreement in the form of Exhibit M, duly
executed by Lessor and Lessee and appropriately notarized (the "Tract 3
Ground Lease Agreement");
3.01-2
101
(3) A Memorandum of Purchase Agreement (covering the Initial
Property), appropriately completed and duly executed by Lessee and Lessor
and appropriately notarized for recording;
(4) Evidence that the Lease Agreement, the Assignment of Lease,
the Lessor Deed of Trust, the grant deeds, the Tract 3 Ground Lease
Agreement and the Memoranda of Purchase Agreement delivered pursuant to
items A(2), A(4), A(5), D(1), D(2) and D(3) have been properly recorded in
the Official Records of the County of County of Santa Clara, California;
(5) An extended coverage owner's policy or binder of title
insurance (or a commitment therefor) for the Initial Property insuring
Lessor's fee simple title or leasehold estate, as appropriate, to such
Property (subject to such exceptions as Agent may approve), in such
amounts and with such endorsements as Agent may reasonably require, issued
by a title insurer acceptable to Agent, together with such policies of
co-insurance or re-insurance (or commitments therefor) as Agent may
require;
(6) An extended coverage lender's policy of title insurance (or a
commitment therefor) for the Initial Property insuring the validity and
priority of the Lease Agreement (subject to such exceptions as Agent may
approve), in such amounts and with such endorsements as Agent may
reasonably require, issued by a title insurer acceptable to Agent,
together with such policies of co-insurance or re-insurance (or
commitments therefor) as Agent may require;
(7) An extended coverage lender's policy of title insurance (or a
commitment therefor) for the Initial Property insuring the validity and
priority of the Lessor Deed of Trust (subject to such exceptions as Agent
may approve), in such amounts and with such endorsements as Agent may
reasonably require, issued by a title insurer acceptable to Agent,
together with such policies of co-insurance or re-insurance (or
commitments therefor) as Agent may require;
(8) Copies of all leases for the Initial Property and all other
documents, instruments and agreements recorded against or otherwise
affecting such Property, including all amendments, extensions and other
modifications thereof;
(9) Subordination, non-disturbance and attornment agreements from
the lessee under each of the leases for the Initial Property;
(10) Such consents and estoppels, with appropriate mortgagee
protection language, as are requested by Agent, each duly executed by the
appropriate Person;
(11) Such Uniform Commercial Code financing statements and fixture
filings (appropriately completed and executed) for filing in such
jurisdictions as Agent may request to perfect the Liens granted to Lessor
and Agent in the Lessee Security Documents, the Lessor Security Agreement
and the other Operative Documents;
(12) Such Uniform Commercial Code termination statements
(appropriately completed and executed) for filing in such jurisdictions as
Agent may request to
3.01-3
102
terminate any financing statement evidencing Liens of other Persons in the
Collateral which are prior to the Liens granted to Lessor and Agent in the
Lessee Security Documents, the Lessor Security Agreement and the other
Operative Documents, except for any such prior Liens which are expressly
permitted by the Operative Documents to be prior;
(13) Uniform Commercial Code search certificates from the
jurisdictions in which Uniform Commercial Code financing statements are to
be filed pursuant to item B(11) above reflecting no other financing
statements or filings which evidence Liens of other Persons in the
Collateral which are prior to the Liens granted to Lessor and Agent in the
Lessee Security Documents, the Lessor Security Agreement and the other
Operative Documents, except for any such prior Liens (a) which are
expressly permitted by the Operative Documents to be prior or (b) for
which Agent has received a termination statement pursuant to item B(12)
above;
(14) Such other documents, instruments and agreements as Agents may
reasonably request to establish and perfect the Liens granted to any
Lessor Party in the Lessee Security Documents, the Lessor Deed of Trust,
the Lessor Security Agreement and the other Operative Documents; and
(15) Such other evidence as Agent may request to establish that the
Liens granted to Agent or any Participant in the Lessee Security
Documents, the Lessor Deed of Trust, the Lessor Security Agreement and the
other Operative Documents are perfected and prior to the Liens of other
Persons in the Collateral, except for any such Liens which are expressly
permitted by the Operative Documents to be prior.
E. OPINIONS.
(1) A favorable written opinion of Wilson, Sonsini, Goodrich &
Rosati, counsel to Lessee, dated the Closing Date, addressed to Lessor and
Agent, for the benefit of Agent and the Participants, and covering such
legal matters as Agent may reasonably request and otherwise in form and
substance satisfactory to Agent; and
(2) A favorable written opinion of the General Counsel of Lessee,
dated the Closing Date, addressed to Lessor and Agent, for the benefit of
Agent and the Participants, and covering such legal matters as Agent may
reasonably request and otherwise in form and substance satisfactory to
Agent.
F. OTHER ITEMS.
(1) A duly completed and timely delivered Acquisition Request for
the Initial Acquisition Advances, duly executed by Lessee;
3.01-4
103
(2) A Closing Date Appraisal for each Tract in the Initial
Property, each dated as of a recent date prior to the Closing Date;
(3) Bills of sale for all Related Goods to be acquired with the
Acquisition Advances to be made on the Closing Date, each reflecting
Lessor as the purchaser of such Related Goods;
(4) An as-built survey of each Tract of the Initial Property (a)
prepared and dated not more than two (2) months prior to the Closing Date
by a registered surveyor reasonably satisfactory to Agent, (b) certified
as correct and as (i) having been made in accordance with the most recent
standards for "Minimum Standard Detail Requirements for ALTA/ACSM Land
Title Surveys," jointly established and adopted by ALTA and ACSM, and (ii)
meeting the accuracy requirements of a Class A survey (as defined therein)
and including items 1-5, 7-13 and 15 of Table 3 thereof, and (c)
disclosing, among other things, (i) the location of the perimeter of the
Property by courses and distances, (ii) all easements and rights-of-way,
whether above or underground, (iii) the lines of the street abutting the
Property and the width thereof, (iv) encroachments, if any, and the extent
thereof in feet and inches upon the Property, and (v) all boundary and lot
lines, and all other matters that would be disclosed by inspection of the
Property and the public records;
(5) Environmental reports and assessments satisfactory to Agent
issued by environmental consultants acceptable to Agent with respect to
the Initial Property;
(6) Certificates of insurance evidencing the insurance Lessee is
required to maintain pursuant to Paragraph 3.03 of the Lease Agreements;
(7) The Acquisition Agreements for the Tract 2 Property and the
Tract 3 Property and assignments of such Acquisition Agreements by Lessee
to Lessor;
(8) A certificate of the Chief Financial Officer of Lessee,
addressed to Lessor and Agent and dated the Closing Date, certifying that:
(a) The representations and warranties set forth in
Paragraph 4.01 of the Participation Agreement and in the other
Operative Documents are true and correct in all material respects as
of such date (except for such representations and warranties made as
of a specified date, which shall be true as of such date);
(b) No Default has occurred and is continuing as of such
date;
(c) All of the Operative Documents are in full force and
effect on such date.
(9) All fees and expenses payable to the Lessor Parties on or
prior to the Closing Date (including all Agent's Fees);
(10) All fees and expenses of Lessor's and Agent's counsels through
the Closing Date; and
3.01-5
104
(11) Such other evidence as Agent may reasonably request to
establish the accuracy and completeness of the representations and
warranties and the compliance with the terms and conditions contained in
the Operative Documents.
3.01-6
105
SCHEDULE 3.02
CONDITIONS PRECEDENT TO TRACT 4 ACQUISITION ADVANCE
A. PRINCIPAL OPERATIVE DOCUMENTS.
(1) An amendment to the Lease Agreement adding the Tract 4
Property to the Property covered thereby, duly executed by Lessee and
Lessor and appropriately notarized;
(2) An amendment to the Purchase Agreement adding the Tract 4
Property to the Property covered thereby, duly executed by Lessee and
Lessor;
(3) An amendment to the Construction Agency Agreement adding the
Tract 4 Property to the Property covered thereby, duly executed by Lessee
and Lessor;
(4) An amendment to the Assignment of Lease adding the Tract 4
Property to the Property covered thereby, duly executed by Lessee and
Lessor and appropriately notarized; and
(5) An amendment to the Lessor Deed of Trust adding the Tract 4
Property to the Property covered thereby, duly executed by Lessee and
Lessor and, appropriately notarized.
B. COLLATERAL DOCUMENTS.
(1) An amendment to the Memorandum of Purchase Agreement adding
the Tract 4 Property to the Property covered thereby, duly executed by
Lessee and Lessor and appropriately notarized for recording, and evidence
that such amendment has been properly recorded in the Official Records of
the County of Santa Clara, California;
(2) Evidence that the Lease Agreement, the Assignment of Lease and
the Lessor Deed of Trust, or amendments thereto, have been properly
recorded in the Official Records of the County of Santa Clara, California;
(3) An extended coverage owner's policy or binder of title
insurance (or a commitment therefor) for the Tract 4 Property insuring
Lessor's fee simple title to such Property (subject to such exceptions as
Agent may approve), in such amounts and with such endorsements as Agent
may reasonably require, issued by a title insurer acceptable to Agent,
together with such policies of co-insurance or re-insurance (or
commitments therefor) as Agent may require;
(4) An extended coverage lender's policy of title insurance (or a
commitment therefor) for the Tract 4 Property insuring the validity and
priority of the Lease
3.02-1
106
Agreement (subject to such exceptions as Agent may approve), in such
amounts and with such endorsements as Agent may reasonably require, issued
by a title insurer acceptable to Agent, together with such policies of
co-insurance or re-insurance (or commitments therefor) as Agent may
require;
(5) An extended coverage lender's policy of title insurance (or a
commitment therefor) for the Tract 4 Property insuring the validity and
priority of the Lessor Deed of Trust (subject to such exceptions as Agent
may approve), in such amounts and with such endorsements as Agent may
reasonably require, issued by a title insurer acceptable to Agent,
together with such policies of co-insurance or re-insurance (or
commitments therefor) as Agent may require;
(6) Copies of all leases for the Tract 4 Property and all other
documents, instruments and agreements recorded against or otherwise
affecting such Property, including all amendments, extensions and other
modifications thereof;
(7) Subordination, non-disturbance and attornment agreements from
the lessee under each of the leases for the Tract 4 Property;
(8) Such consents and estoppels, with appropriate mortgagee
protection language, as are requested by Agent, each duly executed by the
appropriate Person;
(9) Such Uniform Commercial Code financing statements and fixture
filings (appropriately completed and executed) for filing in such
jurisdictions as Agent may request to perfect the Liens granted to Lessor
and Agent in the Lessee Security Documents, the Lessor Security Agreement
and the other Operative Documents;
(10) Such Uniform Commercial Code termination statements
(appropriately completed and executed) for filing in such jurisdictions as
Agent may request to terminate any financing statement evidencing Liens of
other Persons in the Collateral which are prior to the Liens granted to
Lessor and Agent in the Lessee Security Documents, the Lessor Security
Agreement and the other Operative Documents, except for any such prior
Liens which are expressly permitted by the Operative Documents to be
prior;
(11) Uniform Commercial Code search certificates from the
jurisdictions in which Uniform Commercial Code financing statements are to
be filed pursuant to item B.(9) above reflecting no other financing
statements or filings which evidence Liens of other Persons in the
Collateral which are prior to the Liens granted to Lessor and Agent in the
Lessee Security Documents, the Lessor Security Agreement and the other
Operative Documents, except for any such prior Liens (a) which are
expressly permitted by the Operative Documents to be prior or (b) for
which Agent has received a termination statement pursuant to item B.(10)
above;
(12) Such other documents, instruments and agreements as Agents may
reasonably request to establish and perfect the Liens granted to any
Lessor Party in the Lessee Security Documents, the Lessor Deed of Trust,
the Lessor Security Agreement and the other Operative Documents; and
3.02-2
107
(13) Such other evidence as Agent may request to establish that the
Liens granted to Agent or any Participant in the Lessee Security
Documents, the Lessor Deed of Trust, the Lessor Security Agreement and the
other Operative Documents are perfected and prior to the Liens of other
Persons in the Collateral, except for any such Liens which are expressly
permitted by the Operative Documents to be prior.
C. OPINIONS.
(1) A favorable written opinion of Wilson, Sonsini, Goodrich &
Rosati, counsel to Lessee, dated the Closing Date, addressed to Lessor and
Agent, for the benefit of Agent and the Participants, and covering such
legal matters as Agent may reasonably request and otherwise in form and
substance satisfactory to Agent; and
(2) A favorable written opinion of the General Counsel of Lessee,
dated the Closing Date, addressed to Lessor and Agent, for the benefit of
Agent and the Participants, and covering such legal matters as Agent may
reasonably request and otherwise in form and substance satisfactory to
Agent.
D. OTHER ITEMS.
(1) A duly completed and timely delivered Acquisition Request for
the Tract 4 Advance, duly executed by Lessee;
(2) A Closing Date Appraisal of the Tract 4 Property;
(3) Bills of sale for all Related Goods to be acquired for the
Acquisition Advance to be made on the Tract 4 Acquisition Date, each
reflecting Lessor as the purchaser of such Related Goods;
(4) An as-built survey of the Tract 4 Property (a) prepared and
dated not more than two (2) months prior to the Tract 4 Acquisition Date
by a registered surveyor reasonably satisfactory to Agent, (b) certified
as correct and as (i) having been made in accordance with the most recent
standards for "Minimum Standard Detail Requirements for ALTA/ACSM Land
Title Surveys," jointly established and adopted by ALTA and ACSM, and (ii)
meeting the accuracy requirements of a Class A survey (as defined therein)
and including items 1-5, 7-13 and 15 of Table 3 thereof, and (c)
disclosing, among other things, (i) the location of the perimeter of the
Tract 4 Property by courses and distances, (ii) all easements and
rights-of-way, whether above or underground, (iii) the lines of the street
abutting the Tract 4 Property and the width thereof, (iv) encroachments,
if any, and the extent thereof in feet and inches upon the Tract 4
Property, and (v) all boundary and lot lines, and all other matters that
would be disclosed by inspection of the Tract 4 Property and the public
records;
3.02-3
108
(5) If requested by Lessor, Agent or any Participant, a list of
and copies of all Construction Agreements;
(6) Environmental reports and assessments satisfactory to Agent
issued by environmental consultants acceptable to Agent with respect to
the Tract 4 Property;
(7) Certificates of insurance evidencing the insurance Lessee is
required to maintain pursuant to Paragraph 3.03 of the Lease Agreement;
(8) The Acquisition Agreement for the Tract 4 Property and an
assignment of such Acquisition Agreement by Lessee to Lessor;
(9) All fees and expenses payable to the Lessor Parties on or
prior to the Acquisition Date for the Tract 4 Property (including all
Agent's Fees);
(10) All fees and expenses of Lessor's and Agent's counsels through
the Acquisition Date for the Tract 4 Property; and
(11) Such other evidence as Agent, Lessor or any Participant may
reasonably request to establish the accuracy and completeness of the
representations and warranties and the compliance with the terms and
conditions contained in the Operative Documents.
3.02-4
109
SCHEDULE 4.01(Q)
SUBSIDIARIES
Wholly-Owned and Consolidated Subsidiaries
STATE OR OTHER
JURISDICTION OF OWNERSHIP BY
NAME INCORPORATION KLA-TENCOR
- ---- --------------- ------------
UNITED STATES SUBSIDIARIES
Tencor Instruments........................................ California wholly-owned
International Sales & Business, Inc....................... California wholly-owned
KLA-Tencor Building Corporation........................... California wholly-owned
KLA-Tencor Disc Corporation............................... California wholly-owned
KLA-Tencor International Corporation...................... California wholly-owned
KLA-Tencor Instruments Klinnik Corporation................ California wholly-owned
KLA-Tencor Management Corporation......................... California wholly-owned
KLA-Tencor (Thailand Branch) Corporation.................. California wholly-owned
VLSI Standards, Inc....................................... California wholly-owned
INTERNATIONAL SUBSIDIARIES
KLA-Tencor (Cayman) Limited I............................. Cayman Islands wholly-owned
KLA-Tencor (Cayman) Limited II............................ Cayman Islands wholly-owned
KLA-Tencor (Cayman) Limited III........................... Cayman Islands wholly-owned
KLA-Tencor (Israel) Corporation Israel consolidated
KLA-Tencor Holding Corporation 1987 Limited............... Israel consolidated
KLA-Tencor Corporation 1992 Limited....................... Israel consolidated
KLA-Tencor Italy S.R.L.................................... Italy consolidated
KLA-Tencor Japan, Ltd..................................... Japan wholly-owned
KLA-Tencor Instruments Sales Corporation U.S. Virgin Islands wholly-owned
Tencor Foreign Sales Corporation Barbados wholly-owned
KLA-Tencor GmbH Germany wholly-owned
Tencor Instruments GmbH................................... Germany wholly-owned
KLA-Tencor France SARL France wholly-owned
KLA-Tencor Instruments France S.A......................... France wholly-owned
KLA-Tencor Korea, Inc..................................... Korea wholly-owned
KLA-Tencor Limited........................................ United Kingdom wholly-owned
KLA-Tencor (Malaysia) Snd Bhd............................. Malaysia wholly-owned
KLA-Tencor (Singapore) PTE, Ltd........................... Singapore wholly-owned
Tencor Instruments (Service) Limited...................... United Kingdom wholly-owned
VLSI Standards, KK........................................ Japan wholly-owned
In addition, KLA-Tencor Corporation holds equity interest in certain other
entities which such interest does not require consolidation for accounting
purposes.
4.01(q)-1
110
SCHEDULE 4.01(S)
INDIVIDUAL PROPERTY REPRESENTATIONS
4.01(s)-1
111
SCHEDULE 4.01(S)
TRACT 1 PROPERTY
(i) The Tract 1 Land consists of 31.068 acres located at One Technology
Drive, Milpitas, California, more particularly described in Part 1 to Exhibit A.
(ii) On the date of this Agreement, the Existing Improvements on the
Tract 1 Land consist of three (3) one-story and two (2) two-story buildings.
(iii) No property, other than the Tract 1 Land and Existing Improvements
thereto will be acquired for the Acquisition Price therefor or will be acquired
after the applicable Acquisition Date therefor.
(iv) All utilities required to adequately service the Existing
Improvements for their intended use are available and "tapped on" and hooked up
pursuant to adequate permits (including any that may be required under
applicable Environmental Laws). Access to the Existing Improvements for
pedestrians and motor vehicles from publicly dedicated streets and public
highways are available.
(v) No portion of the Tract 1 Property is located in an area identified
as a special flood hazard area by the Federal Emergency Management Agency or
other applicable Governmental Authority, or if any portion of the Property is
located in such an area, flood insurance has been obtained for the Property or
such portion thereof in accordance with Paragraph 3.03 of the Lease Agreement
and the National Flood Insurance Act of 1968.
4.01(s)-2
112
SCHEDULE 4.01(S)
TRACT 2 PROPERTY
(i) The Tract 2 Land consists of 8.124 acres located at 51 and 77 Rio
Robles, San Jose, California, more particularly described in Part 2 to Exhibit
A.
(ii) On the date of this Agreement, the Existing Improvements on the
Tract 2 Land consist of two (2) one-story buildings consisting of 64,895 square
feet and 55,750 square feet respectively.
(iii) In addition to the Tract 2 Land and Existing Improvements thereto,
the other Tract 2 Property to be acquired for the Acquisition Price therefor on
the Acquisition Date therefor will include the personal property described on
that certain Bill of Sale, Assignment of Contract Rights and Intangible Assets
executed by Seller and Lessor and the other Related Goods more particularly
described in Exhibit B to the Lease Agreement or the applicable Exhibit B
Supplement.
(iv) All utilities required to adequately service the Existing
Improvements for their intended use are available and "tapped on" and hooked up
pursuant to adequate permits (including any that may be required under
applicable Environmental Laws). Access to the Existing Improvements for
pedestrians and motor vehicles from publicly dedicated streets and public
highways are available.
(v) No portion of the Tract 2 Property is located in an area identified
as a special flood hazard area by the Federal Emergency Management Agency or
other applicable Governmental Authority, or if any portion of the Property is
located in such an area, flood insurance has been obtained for the Property or
such portion thereof in accordance with Paragraph 3.03 of the Lease Agreement
and the National Flood Insurance Act of 1968.
4.01(s)-3
113
SCHEDULE 4.01(S)
TRACT 3 PROPERTY
(i) The Tract 3 Land consists of 9.2268 acres located at 160 Rio Robles,
San Jose, California, more particularly described in Part 3 to Exhibit A.
(ii) On the date of this Agreement, the Existing Improvements on the
Tract 3 Land consist of one (1) building.
(iii) In addition to the Tract 3 Land and Existing Improvements thereto,
the other Tract 3 Property to be acquired for the Acquisition Price therefor on
the Acquisition Date therefor will include the personal property described on
that certain Bill of Sale, Assignment of Contract Rights and Intangible Assets
executed by Seller and Lessor and the other Related Goods more particularly
described in Exhibit B to the Lease Agreement or the applicable Exhibit B
Supplement.
(iv) All utilities required to adequately service the Existing
Improvements for their intended use are available and "tapped on" and hooked up
pursuant to adequate permits (including any that may be required under
applicable Environmental Laws). Access to the Existing Improvements for
pedestrians and motor vehicles from publicly dedicated streets and public
highways are available.
(v) No portion of the Tract 3 Property is located in an area identified
as a special flood hazard area by the Federal Emergency Management Agency or
other applicable Governmental Authority, or if any portion of the Property is
located in such an area, flood insurance has been obtained for the Property or
such portion thereof in accordance with Paragraph 3.03 of the Lease Agreement
and the National Flood Insurance Act of 1968.
4.01(s)-4
114
SCHEDULE 4.01(S)
TRACT 4 PROPERTY
(i) The Tract 4 Land consists of 3.55 acres located at 145 Rio Robles,
San Jose, California, more particularly described in Part 4 to Exhibit A.
(ii) On the date of this Agreement, the Existing Improvements on the
Tract 4 Land consist of one (1) one-story building consisting of approximately
52,536 square feet.
(iii) No property, other than the Tract 4 Land and Existing Improvements
thereto will be acquired for the Acquisition Price therefor or will be acquired
after the applicable Acquisition Date therefor.
(iv) All utilities required to adequately service the Existing
Improvements for their intended use are available and "tapped on" and hooked up
pursuant to adequate permits (including any that may be required under
applicable Environmental Laws). Access to the Existing Improvements for
pedestrians and motor vehicles from publicly dedicated streets and public
highways are available.
(v) No portion of the Tract 4 Property is located in an area identified
as a special flood hazard area by the Federal Emergency Management Agency or
other applicable Governmental Authority, or if any portion of the Property is
located in such an area, flood insurance has been obtained for the Property or
such portion thereof in accordance with Paragraph 3.03 of the Lease Agreement
and the National Flood Insurance Act of 1968.
4.01(s)-5
115
SCHEDULE 4.01(S)
TRACT 5 PROPERTY
(i) The Tract 5 Land consists of 8.273 acres located at One Technology
Drive, Milpitas, California, more particularly described in Part 1 to Exhibit A.
(ii) There are no Improvements on the Tract 5 Land.
(iii) No property, other than the Tract 5 Land will be acquired for the
Acquisition Price therefor or will be acquired after the applicable Acquisition
Date therefor.
(iv) No portion of the Tract 5 Property is located in an area identified
as a special flood hazard area by the Federal Emergency Management Agency or
other applicable Governmental Authority, or if any portion of the Property is
located in such an area, flood insurance has been obtained for the Property or
such portion thereof in accordance with Paragraph 3.03 of the Lease Agreement
and the National Flood Insurance Act of 1968.
4.01(s)-6
116
EXHIBIT A
LAND
A-1
117
EXHIBIT A
PART 1
TRACT 1 LAND
A-2
118
EXHIBIT A
PART 2
TRACT 2 LAND
A-3
119
EXHIBIT A
PART 3
TRACT 3 LAND
THE FEE OWNER OF THE REAL PROPERTY DESCRIBED BELOW IS: KLA-TENCOR CORPORATION, A
DELAWARE CORPORATION
A-4
120
EXHIBIT A
PART 3 (CONT.)
TRACT 3 LAND (CONT.)
A-5
121
EXHIBIT A
PART 3 (CONT.)
TRACT 3 LAND (CONT.)
A-6
122
EXHIBIT A
PART 3 (CONT.)
TRACT 3 LAND (CONT.)
A-7
123
EXHIBIT A
PART 4
TRACT 4 LAND
A-8
124
EXHIBIT A
PART 5
TRACT 5 LAND
A-9
125
EXHIBIT B
LEASE AGREEMENT
LEASE AGREEMENT,
CONSTRUCTION DEED OF TRUST WITH ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS LEASE AGREEMENT, CONSTRUCTION DEED OF TRUST WITH ASSIGNMENT OF
RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this "Agreement" herein), dated as
of November 12, 1997 is entered into by and between:
(1) KLA-TENCOR CORPORATION, a Delaware corporation ("Lessee"); and
(2) LEASE PLAN U.S.A., INC., a Georgia corporation, as lessor
under this Agreement and as trustee under the deed of trust contained
herein ("Lessor").
RECITALS
A. Lessee has requested Lessor and the financial institutions
which are "Participants" under the Participation Agreement referred to in
Recital B below (such financial institutions to be referred to collectively as
the "Participants") to provide to Lessee a certain lease facility. Pursuant to
such facility:
(1) Lessor would (a) acquire certain property designated by Lessee
(either through purchase or lease), (b) lease to Lessee such property and
certain other property currently held by Lessor, (c) appoint Lessee as
Lessor's agent to make certain improvements to a portion of such property,
(d) make advances to finance such improvements and to pay certain related
expenses, and (e) grant to Lessee the right to purchase such property; and
(2) The Participants would participate in such lease facility by
(a) funding the purchase prices and other advances to be made by Lessor
and (b) acquiring participation interests in the rental and certain other
payments to be made by Lessee.
B. Pursuant to a Participation Agreement dated of even date
herewith (the "Participation Agreement") among Lessee, Lessor, the Participants
and ABN AMRO Bank N.V., as agent for the Participants (in such capacity,
"Agent"), Lessor and the Participants have agreed to provide such lease facility
upon the terms and subject to the conditions set forth therein, including
without limitation the execution and delivery of this Agreement setting forth
the terms of the lease by Lessor to Lessee of the property.
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AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
SECTION 1. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this Agreement or any
other Operative Document, each term set forth in Schedule 1.01 to the
Participation Agreement, when used in this Agreement or any other Operative
Document, shall have the respective meaning given to that term in such Schedule
1.01 or in the provision of this Agreement or other document, instrument or
agreement referenced in such Schedule 1.01.
1.02. Rules of Construction. Unless otherwise indicated in this Agreement
or any other Operative Document, the rules of construction set forth in Schedule
1.02 to the Participation Agreement shall apply to this Agreement and the other
Operative Documents.
SECTION 2. BASIC PROVISIONS.
2.01. Lease of the Property. Subject to the acquisition thereof by Lessor
pursuant to the Participation Agreement and applicable Acquisition Agreements
either as of the date hereof or during the term hereof, Lessor agrees to lease
to Lessee and Lessee agrees to lease from Lessor the following property (the
"Property") to the extent of Lessor's estate, right, title and interest therein,
thereto or thereunder:
(a) All lots, pieces, tracts and parcels of land described in
Exhibit A together with such additional parcels of real property as may be
added to Exhibit A from time to time during the term hereof (the "Land");
(b) All Improvements located on the Land;
(c) All Appurtenant Rights belonging, relating or pertaining to
any of the Land or Improvements;
(d) All Related Goods (including those described in Exhibit B and
in each Exhibit B Supplement), Related Permits and Related Agreements
related to any of the foregoing Land, Improvements or Appurtenant Rights;
and
(e) All accessions and accretions to and replacements and
substitutions for the foregoing.
(Lessee understands that Lessor's only interest in the Tract 3 Land is through
the Tract 3 Ground Lease Agreement and is a leasehold interest only.)
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2.02. Term.
(a) Original Term. The original term of this Agreement shall
commence on the Closing Date (the "Commencement Date") and shall end on
the first Business Day of November, 2002 (such date as it may be extended
pursuant to Subparagraph 2.02(b) to be referred to as the "Scheduled
Expiration Date").
(b) Extensions. Lessee may request Lessor to extend the Scheduled
Expiration Date in effect for an additional period of two (2) years, as
provided in Subparagraph 2.09(b) of the Participation Agreement. If Lessor
and each Participant consents to such a request in accordance with such
provision, the definition of "Scheduled Expiration Date" set forth in
Subparagraph 2.02(a) shall be deemed extended to the date which is the
first business day of November, 2004. Lessee acknowledges that neither
Lessor nor any Participant has any obligation or commitment (either
express or implied) to extend, or consent to the extension of, the
Scheduled Expiration Date at any time.
2.03. Rent.
(a) Base Rent.
(i) Lessee shall pay to Lessor as base rent hereunder ("Base
Rent") for each Rental Period for each Portion of the Outstanding
Lease Amount an amount equal to the product of (A) the Rental Rate
for such Rental Period and Portion, times (B) the amount of such
Portion on the first day of such Rental Period, times (C) a
fraction, the numerator of which is the number of days in such
Rental Period and the denominator of which is 360. If the Rental
Rate shall change during any Rental Period, the Rental Rate for such
Rental Period shall be the weighted average of the Rental Rates in
effect from time to time during such Rental Period.
(ii) Lessee may select the number and amounts of the Portions
into which the Outstanding Lease Amount is to be divided and the
Rental Period for each such Portion by (y) setting forth in each
Acquisition Advance Request delivered by Lessee pursuant to
Subparagraph 2.03(a) of the Participation Agreement the Portions
into which Advances initially are to be divided and the initial
Rental Periods therefor and (z) delivering to Lessor at least three
(3) Business Days prior to the last day of each Rental Period for a
Portion an irrevocable written notice in the form of Exhibit C,
appropriately completed (a "Notice of Rental Period Selection"),
subject to the following:
(A) Each Portion shall be in the amount of $5,000,000
or an integral multiple of $100,000 in excess thereof;
provided, however, that (1) during the Commitment Period, all
Improvement/Expense Advances made after the Closing Date shall
be combined as a single Portion (which may be less than
$5,000,000), (2) the total number of Portions outstanding at
any time shall not exceed four (4), and (3) the Outstanding
Lease Amount shall consist of a single Portion in the amount
of the Outstanding Lease Amount if the Outstanding Lease
Amount is less than $5,000,000).
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(B) The initial and each subsequent Rental Period
selected by Lessee for each Portion shall be one (1), two (2),
three (3), six (6) or twelve (12) months; provided, however,
that (1) the initial Rental Period for any Portion that is
originated on an Acquisition Date that is not the first
Business Day of a calendar month shall begin on such
Acquisition Date and shall end on the first Business Day of
the first calendar month immediately following the month in
which such origination occurs, (2) every other Rental Period
shall begin and end on the first Business Day of a calendar
month, (3) during the Commitment Period, the Rental Period for
the Portion consisting of all Improvement/Expense Advances
made after the Closing Date shall be one (1) month, (4) no
Rental Period shall end after the Scheduled Expiration Date,
(5) no Rental Period shall be longer than one (1) month if a
Default has occurred and is continuing on the date three (3)
Business Days prior to the first day of such Rental Period and
(6) each Rental Period after the initial Rental Period for any
Portion for which Lessee fails to make a selection by
delivering a Notice of Rental Period Selection in accordance
with this clause (ii) shall be one (1) month.
Lessee shall deliver each Notice of Rental Period Selection by
first-class mail or facsimile as required by Subparagraph
2.02(a) and Paragraph 7.01 of the Participation Agreement;
provided, however, that Lessee shall promptly deliver the
original of any Notice of Rental Period Selection initially
delivered by facsimile.
(iii) The rental rate for each Rental Period for a Portion
("Rental Rate") shall be the LIBOR Rental Rate for such Rental
Period and Portion, except as follows:
(A) The Rental Rates for the Rental Periods that begin
on the Closing Date and on the Tract 4 Acquisition Date and
end on December 1, 1997 shall be a rate agreed upon by Lessee
and Lessor; or
(B) If any other Rental Period is less than seven (7)
days, the Rental Rate for such Rental Period shall be the
Alternate Rental Rate; or
(C) If the LIBOR Rental Rate is unavailable for any
Rental Period pursuant to Subparagraph 2.12(a) or Subparagraph
2.12(b) of the Participation Agreement, the Rental Rate for
such Rental Period shall be the Alternate Rental Rate.
(iv) Lessee shall pay Base Rent in arrears (A) for each
Portion, on the last day of each Rental Period therefor and, in the
case of any Rental Period which exceeds three (3) months, each day
occurring every three (3) months after the first day of such Rental
Period (individually, a "Scheduled Rent Payment Date") and (B) for
all Portions, on the Expiration Date.
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(b) Supplemental Rent. Lessee shall pay as supplemental rent
hereunder ("Supplemental Rent") all amounts (other than Base Rent, the
purchase price payable by Lessee for any purchase of the Property by
Lessee pursuant to the Purchase Agreement and the Residual Value Guaranty
Amount payable under the Purchase Agreement) payable by Lessee under this
Agreement and the other Operative Documents. Lessee shall pay all
Supplemental Rent amounts on the dates specified in this Agreement and the
other Operative Documents for the payment of such amounts or, if no date
is specified for the payment of any such amount, upon the demand of Lessor
or any other Person to whom such amount is payable.
2.04. Use. Lessee may use the Property for office, research and
development, warehouse and manufacturing purposes, and for any other purpose
which is in compliance with applicable zoning laws and ordinances for the
Property.
2.05. "As Is" Lease. Lessee has conducted, or will conduct from time to
time with regard to property that may be added hereto after the date hereof, all
due diligence which it deems appropriate regarding the Property and agrees that
no Lessor Party has any obligation to conduct any such due diligence. Lessee is
leasing the Property "as is, with all faults" without any representation,
warranty, indemnity or undertaking by any Lessor Party regarding any aspect of
the Property, including (a) the condition of the Property (including any
Improvements to the Property made prior to the Commencement Date or during the
Term); (b) title to the Property (including possession of the Property by any
Person or the existence of any Lien or any other right, title or interest in or
to any of the Property in favor of any Person); (c) the value, habitability,
usability, design, operation or fitness for use of the Property; (d) the
availability or adequacy of utilities and other services to the Property; (e)
any latent, hidden or patent defect in the Property; (f) the zoning or status of
the Property or any other restrictions on the use of the Property; (g) the
economics of the Property; (h) any Casualty or Condemnation; or (i) the
compliance of the Property with any applicable Governmental Rule or Insurance
Requirement; provided, however, that Lessor shall be obligated to remove Lessor
Liens to the extent required in Subparagraph 5.04(b) of the Participation
Agreement. Without limiting the generality of the foregoing, Lessee specifically
waives any covenant of quiet enjoyment except as otherwise provided in
Subparagraph 5.04(b) of the Participation Agreement.
2.06. Nature of Transaction. As more fully provided in Paragraph 2.10 of
the Participation Agreement, Lessee and the Lessor Parties intend that the
transaction evidenced by this Agreement and the other Operative Documents
constitute an operating lease in accordance with FASB 13 for accounting purposes
and a loan secured by the Property for all other purposes, including federal,
state and local income tax purposes and commercial, real estate and bankruptcy
law purposes.
2.07. Security, Etc. In order to secure the Lessee Obligations and
otherwise to assure the Lessor Parties the benefits hereof in the event that the
transaction evidenced by this Agreement and the other Operative Documents is,
pursuant to the intent of Lessee and the Lessor Parties, treated as a loan for
certain purposes, Lessee hereby makes the following grants and agrees as
follows:
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(a) Real Property Security. As security for the Lessee
Obligations, Lessee hereby irrevocably and unconditionally grants,
conveys, transfers and assigns to Lessor, in trust for the benefit of the
Lessor Parties, with power of sale and right of entry and possession, all
estate, right, title and interest of Lessee in the following property,
whether now owned or leased or hereafter acquired, (collectively, the
"Real Property Collateral"):
(i) The Land;
(ii) All Improvements located on the Land;
(iii) All Appurtenant Rights belonging, relating or pertaining
to any of the foregoing Land or Improvements;
(iv) All Subleases of and all Issues and Profits accruing
from any of the foregoing Land, Improvements or Appurtenant Rights
to the extent that such Subleases and Issues and Profits constitute
real property;
(v) All Related Goods, Related Permits and Related
Agreements related to any of the foregoing Land, Improvements or
Appurtenant Rights to the extent that such Related Goods, Related
Agreements and Related Permits constitute real property;
(vi) All other Property to the extent that such property
constitutes real property; and
(vii) All proceeds of the foregoing, including Casualty and
Condemnation Proceeds.
(b) Personal Property Security. As security for the Lessee
Obligations, Lessee hereby irrevocably and unconditionally assigns and
grants to Lessor, for the benefit of the Lessor Parties, a security
interest in all estate, right, title and interest of Lessee in the
following property, whether now owned or leased or hereafter acquired,
(collectively, the "Personal Property Collateral"):
(i) All Subleases of and all Issues and Profits accruing
from any of the Land, Improvements or Appurtenant Rights to the
extent that such Subleases and Issues and Profits constitute
personal property;
(ii) All Related Goods, Related Permits and Related
Agreements related to any of the Land, Improvements or Appurtenant
Rights to the extent that such Related Goods, Related Agreements and
Related Permits constitute personal property;
(iii) All Cash Collateral and all other deposit accounts,
instruments, investment property and monies held by any Lessor Party
in connection with this Agreement or any other Operative Document
(including any Repair and Restoration Account);
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(iv) All other Property to the extent such Property
constitutes personal property; and
(v) All proceeds of the foregoing, including Casualty and
Condemnation Proceeds.
This Agreement constitutes a fixture filing for purposes of the California
Commercial Code with respect to the Related Goods which are or are to
become fixtures on the Land or Improvements.
(c) Absolute Assignment of Subleases, Issues, and Profits. Lessee
hereby irrevocably assigns to Lessor, for the benefit of the Lessor
Parties, all of Lessee's estate, right, title and interest in, to and
under the Subleases and the Issues and Profits, whether now owned or
hereafter acquired. This is a present and absolute assignment, not an
assignment for security purposes only, and Lessor's right to the Subleases
and Issues and Profits is not contingent upon, and may be exercised
without possession of, the Property.
(i) If no Event of Default has occurred and is continuing,
Lessee shall have a revocable license to collect and retain the
Issues and Profits as they become due. Upon the occurrence and
during the continuance of an Event of Default, such license shall
automatically terminate, and Lessor may collect and apply the Issues
and Profits pursuant to Subparagraph 5.02(d) without further notice
to Lessee or any other party and without taking possession of the
Property. All Issues and Profits thereafter collected by Lessee
shall be held by lessee as trustee in a constructive trust for the
benefit of Lessor. Lessee hereby irrevocably authorizes and directs
the sublessees under the Subleases, without any need on their part
to inquire as to whether an Event of Default has actually occurred
or is then existing, to rely upon and comply with any notice or
demand by Lessor for the payment to Lessor of any rental or other
sums which may become due under the Subleases or for the performance
of any of the sublessees' undertakings under the Subleases.
Collection of any Issues and Profits by Lessor shall not cure or
waive any default or notice of default hereunder or invalidate any
acts done pursuant to such notice.
(ii) The foregoing irrevocable assignment shall not cause any
Lessor Party to be (A) a mortgagee in possession; (B) responsible or
liable for (1) the control, care, management or repair of the
Property or for performing any of Lessee's obligations or duties
under the Subleases, (2) any waste committed on the Property by the
sublessees under any of the Subleases or by any other Persons, (3)
any dangerous or defective condition of the Property, or (4) any
negligence in the management, upkeep, repair or control of the
Property resulting in loss or injury or death to any sublessee,
licensee, employee, invitee or other Person; or (C) responsible for
or impose upon any Lessor Party any duty to produce rents or
profits. No Lessor Party, in the absence of gross negligence or
willful disregard on its part, shall be liable to Lessee as a
consequence of (y) the exercise or failure to exercise any of the
rights, remedies or powers granted to Lessor hereunder or
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(z) the failure or refusal of Lessor to perform or discharge any
obligation, duty or liability of Lessee arising under the Subleases.
SECTION 3. OTHER LESSEE AND LESSOR RIGHTS AND OBLIGATIONS.
3.01. Maintenance, Repair, Etc.
(a) General. Lessee shall not permit any waste of the Property,
except for ordinary wear and tear, and shall, at its sole cost and
expense, maintain the Property in good working order, mechanical condition
and repair and make all necessary repairs thereto, of every kind and
nature whatsoever, whether interior or exterior, ordinary or
extraordinary, structural or nonstructural or foreseen or unforeseen, in
each case as required by all applicable Governmental Rules and Insurance
Requirements and on a basis consistent with the operation and maintenance
of commercial properties comparable in type and location to the Property
and in compliance with prudent industry practice.
(b) New Improvements. Lessee shall make or cause to be made all of
the New Improvements authorized and required by the Construction Agency
Agreement in accordance with the Construction Agency Agreement.
(c) Other Modifications. Lessee, at its sole cost and expense, may
from time to time make alterations, renovations, improvements and
additions to the Property and substitutions and replacements therefor
(collectively, "Modifications") in addition to the New Improvements;
provided that:
(i) No Modification impairs the value, utility or useful
life of the Property or any part thereof from that which existed
immediately prior to such Modification;
(ii) All Modifications are made expeditiously and, in all
cases unless Lessee currently is exercising either the Term Purchase
Option or the Expiration Date Purchase Option, completed not later
than six (6) months prior to the Scheduled Expiration Date;
(iii) All Modifications are made in a good and workmanlike
manner and in compliance with all applicable Governmental Rules and
Insurance Requirements;
(iv) Subject to Paragraph 3.12 relating to permitted
contests, Lessee pays all costs and expenses and discharges (or
cause to be insured or bonded over) any Liens arising in connection
with any Modification not later than the earlier of (A) sixty (60)
days after the same shall be filed (or otherwise becomes effective)
and (B) unless Lessee currently is exercising either the Term
Purchase Option or the Expiration Date Purchase Option, six (6)
months prior to the Scheduled Expiration Date;
(v) At least one (1) month prior to the commencement of (A)
any Modifications which are anticipated to cost $2,500,000 or more
in the aggregate,
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or (B) any Modifications which cause the total of all Modifications
undertaken during the previous twelve-month period to exceed an
aggregate cost of $5,000,000, Lessee shall deliver to Lessor, with
sufficient copies for Agent and each Participant, a brief written
description of such Modifications; and
(vi) All Modifications otherwise comply with this Agreement
and the other Operative Documents.
(d) Abandonment. Lessee shall not abandon the Property or any
material portion thereof for any period in excess of thirty (30)
consecutive days during the term hereof, except as a part of any New
Improvements or Modifications as permitted herein or in the other
Operative Documents.
3.02. Risk of Loss. Lessee assumes all risks of loss arising from any
Casualty or Condemnation which arises or occurs prior to the Expiration Date or
while Lessee is in possession of the Property and all liability for all personal
injuries and deaths and damages to property suffered by any Person or property
on or in connection with the Property which arises or occurs prior to the
Expiration Date or while Lessee is in possession of the Property, except in each
case to the extent any such loss or liability is primarily caused by the gross
negligence or willful misconduct of a Lessor Party. Lessee hereby waives the
provisions of California Civil Code Sections 1932(1), 1932(2) and 1933(4), and
any and all other applicable existing or future Governmental Rules permitting
the termination of this Agreement as a result of any Casualty or Condemnation,
and Lessor shall in no event be answerable or accountable for any risk of loss
of or decrease in the enjoyment and beneficial use of the Property as a result
of any such event.
3.03. Insurance.
(a) Coverage. Lessee, at its sole cost and expense, shall carry
and maintain the following insurance coverage:
(i) At all times during the Term, commercial liability
insurance covering claims for injuries or death sustained by persons
or damage to property while on the Property, and workers'
compensation insurance;
(ii) At all times during the Term, property insurance
covering loss or damage by fire, flood and other risks in an amount
not less than the then current replacement cost of the Improvements
on the Property;
(iii) During the construction of any Improvements, builders'
risk insurance covering fire, flood and other normal insured risks;
and
(iv) At all times during the Term as appropriate, such other
insurance of the types customarily carried by a reasonably prudent
Person owning or operating properties similar to the Property in the
same geographic area as the Property;
Provided, however, that this Subparagraph 3.03(a) (A) shall not be
construed to require Lessee to carry
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or maintain earthquake insurance and (B) shall not require Lessee to carry
or maintain flood insurance in an amount in excess of the amount required
by any Governmental Rule applicable to Lessee or any Lessor Party. Except
as otherwise specifically required above, such insurance shall be in
amounts, in a form and with deductibles customarily carried by a
reasonably prudent Person owning or operating properties similar to the
Property in the same geographic area as the Property.
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(b) Carriers. Any insurance carried and maintained by Lessee
pursuant to this Paragraph 3.03 shall be underwritten by an insurance
company which (i) has, at the time such insurance is placed and at the
time of each renewal thereof, a general policyholder rating of "A" and a
financial rating of at least 9 from A.M. Best and Company or any successor
thereto (or if there is none, an organization having a similar national
reputation) or (ii) is otherwise approved by Lessor and Required
Participants; provided, however, that Lessee may, if no Event of Default
has occurred and is continuing, self-insure.
(c) Terms. Each insurance policy maintained by Lessee pursuant to
this Paragraph 3.03 shall provide as follows, whether through endorsements
or otherwise:
(i) Lessor and Agent shall be named as additional insureds,
in the case of each policy of liability and property insurance, and
additional loss payees, in the case of each policy of property
insurance.
(ii) In respect of the interests of Lessor in the policy, the
insurance shall not be invalidated by any action or by inaction of
Lessee or by any Person having temporary possession of the Property
while under contract with Lessee to perform maintenance, repair,
alteration or similar work on the Property, and shall insure the
interests of Lessor regardless of any breach or violation of any
warranty, declaration or condition contained in the insurance policy
by Lessee, Lessor or any other additional insured (other than by
such additional insured, as to such additional insured); provided,
however, that the foregoing shall not be deemed to (A) cause such
insurance policies to cover matters otherwise excluded from coverage
by the terms of such policies or (B) require any insurance to remain
in force notwithstanding non-payment of premiums except as provided
in clause (iii) below.
(iii) If the insurance policy is cancelled for any reason
whatsoever, or substantial change is made in the coverage that
affects the interests of Lessor, or if the insurance coverage is
allowed to lapse for non-payment of premium, such cancellation,
change or lapse shall not be effective as to Lessor for thirty (30)
days after receipt by Lessor of written notice from the insurers of
such cancellation, change or lapse.
(iv) No Lessor Party shall have any obligation or liability
for premiums, commissions, assessments, or calls in connection with
the insurance.
(v) The insurer shall waive any rights of set-off or
counterclaim or any other deduction, whether by attachment or
otherwise, that it may have against any Lessor Party.
(vi) The insurance shall be primary without right of
contribution from any other insurance that may be carried by any
Lessor Party with respect to its interest in the Property.
(vii) The insurer shall waive any right of subrogation against
any Lessor Party.
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(viii) All provisions of the insurance, except the limits of
liability, shall operate in the same manner as if there were a
separate policy covering each insured party.
(ix) The insurance shall not be invalidated should Lessee or
any Lessor Party waive, in writing, prior to a loss, any or all
rights of recovery against any Person for losses covered by such
policy, nor shall the insurance in favor of any Lessor Party or
Lessee, as the case may be, or their respective rights under and
interests in said policies be invalidated or reduced by any act or
omission or negligence of any Lessee Party or Lessor, as the case
may be, or any other Person having any interest in the Property.
(x) If the insurer has not received written notice from
Lessor that an Event of Default has occurred and is continuing, (A)
all insurance proceeds in respect of any loss or occurrence with a
value of less than fifteen million Dollars ($15,000,000) shall be
paid to and adjusted solely by Lessee and (B) all other insurance
proceeds shall be paid to Lessor and adjusted jointly by Lessor and
Lessee. From and after the date on which the insurer receives
written notice from Lessor that an Event of Default has occurred and
is continuing (and unless and until such insurer receives written
notice from Lessor that all Events of Default have been cured), all
losses shall be adjusted solely by, and all insurance proceeds shall
be paid solely to, Lessor.
(xi) Each policy shall contain a standard form mortgage
endorsement in favor of Lessor.
(d) Evidence of Insurance. Lessee, at its sole cost and expense,
shall furnish to Lessor from time to time upon the request of Lessor such
certificates or other documents as Lessor may reasonably request to
evidence Lessee's compliance with the insurance requirements set forth in
this Paragraph 3.03.
(e) Release of Lessor Parties. Lessee hereby waives, releases and
discharges each Lessor Party and its directors, officers, employees,
agents and advisors from all claims whatsoever arising out of any loss,
claim, expense or damage to or destruction covered or coverable by
insurance required under this Paragraph 3.03 to the extent the policies
for such insurance permit such waiver, notwithstanding that such loss,
claim, expense or damage may have been caused by any such Person, and, as
among Lessee and such Persons, Lessee agrees to look to the insurance
coverage only in the event of such loss.
3.04. Casualty and Condemnation.
(a) Notice. Lessee shall give Lessor prompt written notice of the
occurrence of any Casualty affecting, or the institution of any
proceedings for the Condemnation of, the Property or any portion thereof.
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(b) Repair or Purchase Option. After the occurrence of any
Casualty or Condemnation affecting the Property or any portion thereof,
Lessee shall either (i) repair and restore the Property as required by
Subparagraph 3.04(c) or (ii) exercise the Term Purchase Option and
purchase the Property pursuant to the Purchase Agreement; provided,
however, that Lessee may not elect to repair and restore the Property if
such casualty or condemnation is a Major Casualty or Major Condemnation or
if an Event of Default has occurred and is continuing, unless Lessor and
the Required Participants shall consent in writing. Not later than one (1)
month after the occurrence of any Casualty or Condemnation, Lessee shall
deliver to Lessor a written notice indicating whether it elects to repair
and restore or purchase the Property
(c) Repair and Restoration. If Lessee elects to repair and restore
the Property following any Casualty or Condemnation, Lessee shall
diligently proceed to repair and restore the Property to the condition in
which it existed immediately prior to such Casualty or Condemnation and
shall use reasonable efforts to complete all such repairs and restoration
as soon as reasonably practicable, but not later than six (6) months prior
to the Scheduled Expiration Date unless Lessee currently is exercising
either the Term Purchase Option or the Expiration Date Purchase Option,.
Lessee shall use its own funds to make such repairs and restoration,
except to the extent any Casualty and Condemnation Proceeds are available
and are released to Lessee for such purpose pursuant to Subparagraph
3.04(f). Lessee's exercise of the repair and restoration option shall, if
Lessor or Required Participants direct, be subject to satisfaction of the
following conditions within one (1) month after the occurrence of the
Casualty or Condemnation:
(i) Deposit in a deposit account acceptable to and
controlled by Lessor (a "Repair and Restoration Account") of funds
(including any Casualty and Condemnation Proceeds which are
available and are released to Lessee pursuant to Subparagraph
3.04(f)) in the amount which Lessor determines is needed to complete
and fully pay all costs of the repair or restoration (including
taxes, financing charges, insurance and rent during the repair
period);
(ii) The establishment of an arrangement for lien releases
and disbursement of funds acceptable to Lessor and in a manner and
upon such terms and conditions as would be required by a prudent
interim construction lender; and
(iii) The delivery to Lessor of the following, each in form
and substance acceptable to Lessor;
(A) Evidence that the Property can, in Lessor's
reasonable judgment, with diligent restoration or repair, be
returned to a condition at least equal to the condition
thereof that existed prior to the Casualty or partial
Condemnation causing the loss or damage within the earlier to
occur of (A) six (6) months after the occurrence of the
Casualty or Condemnation and (B) unless Lessee currently is
exercising either the Term Purchase Option or the Expiration
Date Purchase Option, six (6) months prior to the Scheduled
Expiration Date;
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(B) Evidence that all necessary governmental approvals
can be timely obtained to allow the rebuilding and reoccupancy
of the Property;
(C) Copies of all plans and specifications for the
work;
(D) Copies of all contracts for the work, signed by a
contractor reasonably acceptable to Lessor;
(E) A cost breakdown for the work;
(F) A payment and performance bond for the work or
other security satisfactory to Lender;
(G) Evidence that, upon completion of the work, the
size, capacity and total value of the Property will be at
least as great as it was before the Casualty or Condemnation
occurred; and
(H) Evidence of satisfaction of any additional
conditions that Lessor or Required Participants may reasonably
establish to protect their rights under this Agreement and the
other Operative Documents.
All plans and specifications for the work must be reasonably
acceptable to Lessor, except that Lessor's approval shall not be
required if the restoration work is based on the same plans and
specifications as were originally used to construct the Property. To
the extent that the funds in a Repair and Restoration Account
include both Casualty and Condemnation Proceeds and other funds
deposited by Lessee, the other funds deposited by Lessee shall be
used first. Lessee acknowledges that the specific conditions
described above are reasonable.
(d) Prosecution of Claims for Casualty and Condemnation Proceeds.
Lessee shall proceed promptly and diligently to prosecute in good faith
the settlement or compromise of any and all claims for Casualty and
Condemnation Proceeds; provided, however, that any settlement or
compromise of any such claim shall, except as otherwise provided in clause
(x) of Subparagraph 3.03(c), be subject to the written consent of Lessor
and Required Participants, which consents shall not be unreasonably
withheld. Lessor may participate in any proceedings relating to such
claims, and, after the occurrence and during the continuance of any Event
of Default, Lessor is hereby authorized, in its own name or in Lessee's
name, to adjust any loss covered by insurance or any Casualty or
Condemnation claim or cause of action, and to settle or compromise any
claim or cause of action in connection therewith, and Lessee shall from
time to time deliver to Lessor any and all further assignments and other
instruments required to permit such participation.
(e) Assignment of Casualty and Condemnation Proceeds. Lessee
hereby absolutely and irrevocably assigns to Lessor all Casualty and
Condemnation Proceeds and all claims relating thereto. Except as otherwise
provided in clause (x) of Subparagraph 3.03(c), Lessee agrees that all
Casualty and Condemnation Proceeds are to be paid to Lessor and Lessee
hereby authorizes and directs any insurer, Governmental
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Authority or other Person responsible for paying any Casualty and
Condemnation Proceeds to make payment thereof directly to Lessor alone,
and not to Lessor and Lessee jointly. If Lessee receives any Casualty and
Condemnation Proceeds payable to Lessor hereunder, Lessee shall promptly
pay over such Casualty and Condemnation Proceeds to Lessor. Lessee hereby
covenants that until such Casualty and Condemnation Proceeds are so paid
over to Lessor, Lessee shall hold such Casualty and Condemnation Proceeds
in trust for the benefit of Lessor and shall not commingle such Casualty
and Condemnation Proceeds with any other funds or assets of Lessee or any
other Person. Except as otherwise provided in clause (x) of Subparagraph
3.03(c), Lessor may commence, appear in, defend or prosecute any assigned
right, claim or action, and may adjust, compromise, settle and collect all
rights, claims and actions assigned to Lessor, but shall not be
responsible for any failure to collect any such right, claim or action,
regardless of the cause of the failure.
(f) Use of Casualty and Condemnation Proceeds.
(i) If (A) no Event of Default has occurred and is
continuing, (B) Lessee exercises the repair and restoration option
pursuant to Subparagraphs 3.04(b) and 3.04(c) and (C) Lessee
complies with any conditions imposed pursuant to Subparagraph
3.04(c); then Lessor shall release any Casualty and Condemnation
Proceeds to Lessee for repair or restoration of the Property, but
may condition such release and use of the Casualty and Condemnation
Proceeds upon deposit of the Casualty and Condemnation Proceeds in a
Repair and Restoration Account. Lessor shall have the option, upon
the completion of such restoration of the Property, to apply any
surplus Casualty and Condemnation Proceeds remaining after the
completion of such restoration to the payment of Rent and/or the
reduction of the Outstanding Lease Amount, notwithstanding that such
amounts are not then due and payable or that such amounts are
otherwise adequately secured.
(ii) If (A) an Event of Default has occurred and is
continuing, (B) Lessee fails to or is unable to comply with any
conditions imposed pursuant to Subparagraph 3.04(c) or (C) Lessee
elects to exercise the Term Purchase Option and purchase the
Property pursuant to the Purchase Agreement; then, at the absolute
discretion of Lessor and the Required Participants, regardless of
any impairment of security or lack of impairment of security, but
subject to applicable Governmental Rules governing use of Casualty
and Condemnation Proceeds, if any, Lessor may (1) apply all or any
of the Casualty and Condemnation Proceeds it receives to the
expenses of Lessor Parties in obtaining such proceeds; (2) apply the
balance to the payment of Rent and/or the reduction of the
Outstanding Lease Amount, notwithstanding that such amounts are not
then due and payable or that such amounts are otherwise adequately
secured and/or (3) release all or any part of such proceeds to
Lessee upon any conditions Lessor and the Required Participants may
elect.
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(iii) Lessor shall apply any Casualty and Condemnation
Proceeds which are to be used to reduce the Outstanding Lease Amount
only on the last day of a Rental Period unless a Default has
occurred and is continuing.
(iv) Application of all or any portion of the Casualty and
Condemnation Proceeds, or the release thereof to Lessee, shall not
cure or waive any Default or notice of default or invalidate any
acts done pursuant to such notice.
3.05. Taxes. Subject to Paragraph 3.12 relating to permitted contests,
Lessee shall promptly pay when due all Indemnified Taxes imposed on or payable
by Lessee or any Lessor Party in connection with the Property, this Agreement or
any of the other Operative Documents, or any of the transactions contemplated
hereby or thereby. As promptly as possible after any Indemnified Taxes are
payable by Lessee, Lessee shall send to Lessor for the account of the applicable
Lessor Party a certified copy of an original official receipt received by Lessee
showing payment thereof. If Lessee fails to pay any such Indemnified Taxes when
due to the appropriate taxing authority or fails to remit to Lessor the required
receipts or other required documentary evidence, Lessee shall indemnify the
Lessor Parties for any incremental taxes, interest or penalties that may become
payable by the Lessor Parties as a result of any such failure. The obligations
of Lessee under this Paragraph 3.05 shall survive the payment and performance of
the Lessee Obligations and the termination of this Agreement.
3.06. Environmental Matters.
(a) Lessee's Covenants. Lessee shall not cause or permit Hazardous
Materials to be used, generated, manufactured, stored, treated, disposed
of, transported or present on or released or discharged from the Property
in any manner that is reasonably likely to have a Material Adverse Effect.
Lessee may use Hazardous Materials in connection with the operation of its
business (or the business of permitted subtenants) so long as such use is
consistent with the preceding sentence. Lessee shall immediately notify
Lessor in writing of (i) the discovery of any Hazardous Materials on,
under or about the Property; (ii) any knowledge by Lessee that the
Property does not comply with any Environmental Laws; (iii) any claims
against Lessee or the Property relating to Hazardous Materials or pursuant
to Environmental Laws; and (iv) the discovery of any occurrence or
condition on any real property adjoining or in the vicinity of the
Property that could cause the Property or any part thereof to be
designated as "border zone property" under the provisions of California
Health and Safety Code Sections 25220 et seq. or any regulation adopted in
accordance therewith. In response to the presence of any Hazardous
Materials on, under or about the Property, Lessee shall immediately take,
at Lessee's sole expense, all remedial action required by any
Environmental Laws or any judgment, consent decree, settlement or
compromise in respect to any claim based thereon.
(b) Inspection By Lessor. Upon reasonable prior notice to Lessee,
Lessor, its employees and agents, may from time to time (whether before or
after the commencement of a nonjudicial or judicial foreclosure
proceeding), enter and inspect the Property for the purpose of determining
the existence, location, nature and magnitude of
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any past or present release or threatened release of any Hazardous
Materials into, onto, beneath or from the Property.
(c) Indemnity. Without in any way limiting any other indemnity
contained in this Agreement or any other Operative Document, Lessee agrees
to defend, indemnify and hold harmless the Lessor Parties and the other
Indemnitees from and against any claim, loss, damage, cost, expense or
liability directly or indirectly arising out of (i) the use, generation,
manufacture, storage, treatment, release, threatened release, discharge,
disposal, transportation or presence of any Hazardous Materials which are
found in, on, under or about the Property or (ii) the breach of any
covenant, representation or warranty of Lessee relating to Hazardous
Materials or Environmental Laws contained in this Agreement or any
Operative Document. This indemnity shall include (A) the costs, whether
foreseeable or unforeseeable, of any investigation, repair, cleanup or
detoxification of the Property which is required by any Governmental
Authority or is otherwise necessary to render the Property in compliance
with all Environmental Laws; (B) all other direct or indirect
consequential damages (including any third party claims, claims by any
Governmental Authority, or any fines or penalties against the Indemnitees;
and (C) all court costs and attorneys' fees (including expert witness fees
and the cost of any consultants) paid or incurred by the Indemnitees.
Lessee shall pay immediately upon Lessor's demand any amounts owing under
this indemnity. Lessee shall use legal counsel reasonably acceptable to
Lessor in any action or proceeding arising under this indemnity. The
obligations of Lessee under this Subparagraph 3.06(c) shall survive the
payment and performance of the Lessee Obligations and the termination of
this Agreement.
(d) Legal Effect of Section. Lessee and Lessor agree that (i) this
Paragraph 3.06 and clause (i) of Subparagraph 4.01(s) of the Participation
Agreement are intended as Lessor's written request for information (and
Lessee's response) concerning the environmental condition of the real
property security as required by California Code of Civil Procedure
Section 726.5 and (ii) each representation and warranty and covenant
herein and therein (together with any indemnity applicable to a breach of
any such representation and warranty) with respect to the environmental
condition of the Property is intended by Lessor and Lessee to be an
"environmental provision" for purposes of California Code of Civil
Procedure Section 736.
3.07. Liens, Easements, Etc.
(a) Lessee's Covenants. Subject to Paragraph 3.12 relating to
permitted contests, Lessee shall not create, incur, assume or permit to
exist any Lien or easement on or with respect to any of the Property of
any character, whether now owned or hereafter acquired, except for the
following ("Permitted Property Liens"):
(i) Liens in favor of a Lessor Party securing the Lessee
Obligations;
(ii) Liens and easements in existence on the Commencement
Date to the extent reflected in the title insurance policies
delivered to Agent pursuant to
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Paragraphs 3.01 and 3.02 of and Schedules 3.01 and 3.02 to the
Participation Agreement and approved by Lessor;
(iii) Liens and easements approved by Lessor and reflected in
the title insurance policy or policies or binders to be delivered in
connection with any Land added hereto after the date hereof;
(iv) Liens for taxes or other Governmental Charges not at the
time delinquent or thereafter payable without penalty;
(v) Liens of carriers, warehousemen, mechanics, materialmen
and vendors and other similar Liens imposed by law incurred in the
ordinary course of business for sums not overdue; and
(vi) Lessor Liens.
Subject to Paragraph 3.12 relating to permitted contests, Lessee shall
promptly (A) pay all Indebtedness of Lessee and other obligations prior to
the time the non-payment thereof would give rise to a Lien on the Property
and (B) discharge, at its sole cost and expense, any Lien on the Property
which is not a Permitted Property Lien.
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(b) No Consents. Nothing contained in this Agreement shall be
construed as constituting the consent or request of any Lessor Party,
express or implied, to or for the performance by any contractor, mechanic,
laborer, materialman, supplier or vendor of any labor or services or for
the furnishing of any materials for any construction, alteration,
addition, repair or demolition of or to the Property or any part thereof.
NOTICE IS HEREBY GIVEN THAT NO LESSOR PARTY IS OR SHALL BE LIABLE FOR ANY
LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE FURNISHED TO LESSEE, OR TO
ANYONE HOLDING THE PROPERTY OR ANY PART THEREOF THROUGH OR UNDER LESSEE,
AND THAT NO MECHANIC'S OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR
MATERIALS SHALL ATTACH TO OR AFFECT THE INTEREST OF ANY LESSOR PARTY IN
AND TO THE PROPERTY.
3.08. Subletting. Lessee may, in the ordinary course of business, sublease
the Property or any portion thereof to any Person, provided, that (a) Lessee
remains directly and primarily liable for performing its obligations under this
Agreement and all other Lessee Obligations; (b) each sublease is subject to and
subordinated to this Agreement; (c) each sublease has a term which expires on or
prior to the Scheduled Expiration Date (or, if longer, includes a provision that
the sublease terminates on the Expiration Date if such Expiration Date occurs
prior to the Scheduled Expiration Date unless Lessee purchases the Property on
the Expiration Date pursuant to the Purchase Agreement); (d) each sublease
prohibits the sublessee from engaging in any activities on the Property other
than those permitted by Paragraph 2.04; and (e) no sublease has a Material
Adverse Effect. Any sublease which does not satisfy each of the requirements of
the immediately preceding sentence shall be null and void as to the Lessor
Parties and their successor and assigns. Except for such permitted subleases,
Lessee shall not assign any of its rights or interests under this Agreement to
any other Person.
3.09. Utility Charges. Lessee shall pay all charges for electricity,
power, gas, oil, water, telephone, sanitary sewer service and all other
utilities and services to, on or in connection with the Property during the
Term.
3.10. Removal of Property. Lessee shall not remove any Improvements from
the Land or any other Property from the Land or Improvements, except that,
during the Term, Lessee may remove any Modification or any trade fixture,
machinery, equipment, inventory or other personal property if such Modification
or property (a) was not financed by an Advance, (b) is not required by any
applicable Governmental Rule or Insurance Requirement and (c) is readily
removable without impairing the value, utility or remaining useful life of the
Property.
3.11. Compliance with Governmental Rules and Insurance Requirements.
Lessee, at its sole cost and expense, shall, unless its failure is not
reasonably likely to have a Material Adverse Effect, (a) comply, and cause its
agents, sublessees, assignees, employees, invitees, licensees, contractors and
tenants, and the Property to comply, with all Governmental Rules and Insurance
Requirements relating to the Property (including the construction, use,
operation, maintenance, repair and restoration thereof, whether or not
compliance therewith shall require structural or extraordinary changes in the
Improvements or interfere with the use and enjoyment of the Property), and (b)
procure, maintain and comply with all licenses, permits, orders, approvals,
consents and other authorizations required for the construction, use,
maintenance and
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operation of the Property and for the use, operation, maintenance, repair and
restoration of the Improvements.
3.12. Permitted Contests. Lessee, at its sole cost and expense, may
contest any alleged Lien or easement on any of the Property or any alleged
Governmental Charge, Indebtedness or other obligation which is payable by Lessee
hereunder to Persons other than the Lessor Parties or which, if unpaid, would
give rise to a Lien on any of the Property, provided that (a) each such contest
is diligently pursued in good faith by appropriate proceedings; (b) the
commencement and continuation of such proceedings suspends the enforcement of
such Lien or easement or the collection of such Governmental Charge,
Indebtedness or obligation; (c) Lessee has established adequate reserves for the
discharge of such Lien or easement or the payment of such Governmental Charge,
Indebtedness or obligation in accordance with GAAP and, if the failure to
discharge such Lien or easement or the failure to pay such Governmental Charge,
Indebtedness or obligation might result in any civil liability for any Lessor
Party, Lessee has provided to such Lessor Party a bond or other security
satisfactory to such Lessor Party; (d) the failure to discharge such Lien or
easement or the failure to pay such Governmental Charge, Indebtedness or
obligation could not result in any criminal liability for any Lessor Party; (e)
the failure to discharge such Lien or easement or the failure to pay such
Governmental Charge, Indebtedness or obligation is not otherwise reasonably
likely to have a Material Adverse Effect; and (f) unless Lessee currently is
exercising either the Term Purchase Option or the Expiration Date Purchase
Option, any such contest is completed and such Lien or easement is discharged
(either pursuant to such proceedings or otherwise) or such Governmental Charge,
Indebtedness or obligation is declared invalid, paid or otherwise satisfied not
later than six (6) months prior to the Scheduled Expiration Date.
3.13. Lessor Obligations; Right to Perform Lessee Obligations. No Lessor
Party shall have any obligation to (a) maintain, repair or make any improvements
to the Property, (b) maintain any insurance on the Property, (c) perform any
other obligation of Lessee under this Agreement or any other Lessee Obligation,
(d) make any expenditure on account of the Property (except to make Advances as
required by the Participation Agreement) or (e) take any other action in
connection with the Property, this Agreement or any other Operative Document,
except as expressly provided herein or in another Operative Document; provided
however, that Lessor may, in its sole discretion and without any obligation to
do so, perform any Lessee Obligation not performed by Lessee when required.
Lessor may enter the Property or exercise any other right of Lessee under this
Agreement or any other Operative Document to the extent Lessor determines in
good faith that such entry or exercise is reasonably necessary for Lessor to
perform any such Lessee Obligation not performed by Lessee when required. Lessee
shall reimburse Lessor and the other Lessor Parties, within five (5) Business
Days after demand, for all fees, costs and expenses incurred by them in
performing any such obligation or curing any Default.
3.14. Inspection Rights. During the Term, Lessee shall permit any Person
designated by Lessor, upon reasonable notice and during normal business hours,
to visit and inspect any of the Property.
SECTION 4. EXPIRATION DATE.
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4.01. Termination by Lessee Prior to Scheduled Expiration Date. Subject to
the terms and conditions of the Purchase Agreement, Lessee may, at any time
prior to the Scheduled Expiration Date, terminate this Agreement and purchase
the Property pursuant to Section 2 of the Purchase Agreement. Lessee shall
notify Lessor of Lessee's election so to terminate this Agreement and purchase
the Property by delivering to Agent a Notice of Term Purchase Option Exercise
pursuant to and in accordance with the provisions of Paragraph 2.01 of the
Purchase Agreement.
4.02. Surrender of Property. Unless Lessee purchases the Property on the
Expiration Date pursuant to the Purchase Agreement, Lessee shall vacate and
surrender the Property to Lessor on the Expiration Date in its then-current
condition, subject to compliance by Lessee on or prior to such date of its
obligations under this Agreement and the other Operative Documents (including
the completion of the New Improvements and all Modifications, the completion of
all permitted contests and the removal of all Liens which are not Permitted
Property Liens of the types described in clauses (i), (ii), (iii), (iv) and (vi)
of Subparagraph 3.07(a)).
4.03. Holding Over. If Lessee does not purchase the Property on the
Expiration Date pursuant to the Purchase Agreement but continues in possession
of any portion of the Property after the Expiration Date, Lessee shall pay rent
for each day it so continues in possession, payable upon demand of Lessor, at a
per annum rate equal to the Alternate Rental Rate plus two percent (2.0%) and
shall pay and perform all of its other Lessee Obligations under this Agreement
and the other Operative Documents in the same manner as though the Term had not
ended; provided, however, that this Paragraph 4.03 shall not be interpreted to
permit such holding over or to limit any right or remedy of Lessor for such
holding over.
SECTION 5. DEFAULT.
5.01. Events of Default. The occurrence or existence of any one or more of
the following shall constitute an "Event of Default" hereunder:
(a) Non-Payment. Lessee shall (i) fail to pay on the Expiration
Date any amount payable by Lessee under this Agreement or any other
Operative Document on or prior to such date, (ii) fail to pay within five
(5) business days after any Scheduled Rent Payment Date any Base Rent
payable on such Scheduled Rent Payment Date (other than the Base Rent
payable on the Expiration Date) or (iii) fail to pay within thirty (30)
days after the same becomes due, any Supplemental Rent or other amount
required under the terms of this Agreement or any other Operative Document
(other than any such amount payable on the Expiration Date or Base Rent);
or
(b) Specific Defaults. Lessee or any of its Subsidiaries shall
fail to observe or perform any covenant, obligation, condition or
agreement set forth in Subparagraph 3.01(d) hereof or in Paragraph 5.02 or
Paragraph 5.03 of the Participation Agreement; or
(c) Other Defaults. Lessee or any of its Subsidiaries shall fail
to observe or perform any other covenant, obligation, condition or
agreement contained in this Agreement or any other Operative Document and
such failure shall continue for a period
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of thirty (30) days after written notice thereof from Lessor; provided,
however, that, if such failure cannot reasonably be cured within such
thirty (30) day period, such failure shall not constitute an Event of
Default hereunder if Lessee (i) promptly commences to cure such failure
within such thirty (30) day period, (ii) thereafter diligently pursues
such cure to completion, and (iii) completes such cure not later than the
earlier of (A) the Expiration Date, if Lessee is exercising the Marketing
Option, and (B) one hundred and twenty days (120) days after Lessor's
notice of such failure; or
(d) Representations and Warranties. Any representation, warranty,
certificate, information or other statement (financial or otherwise) made
or furnished by or on behalf of Lessee or any of its Subsidiaries to any
Lessor Party in or in connection with this Agreement or any other
Operative Document, or as an inducement to any Lessor Party to enter into
this Agreement or any other Operative Document, shall be false, incorrect,
incomplete or misleading in any material respect when made or furnished;
or
(e) Cross-Default. (i) Lessee or any of its Subsidiaries shall
fail to make any payment when due on account of any Indebtedness of such
Person (other than the Lessee Obligations and trade payables) and such
failure shall continue beyond any period of grace provided with respect
thereto, if the amount of such Indebtedness exceeds $40,000,000 or the
effect of such failure is to cause, or permit the holder or holders
thereof to cause, Indebtedness of Lessee and its Subsidiaries (other than
the Lessee Obligations) in an aggregate amount exceeding $40,000,000 to
become due or (ii) Lessee or any of its Subsidiaries shall otherwise fail
to observe or perform any agreement, term or condition contained in any
agreement or instrument relating to any Indebtedness of such Person (other
than the Lessee Obligations and trade payables), or any other event shall
occur or condition shall exist, if the effect of such failure, event or
condition is to cause, or permit the holder or holders thereof to cause,
Indebtedness of Lessee and its Subsidiaries (other than the Lessee
Obligations) in an aggregate amount exceeding $40,000,000 to become due
(and/or to be secured by cash collateral); or
(f) Insolvency, Voluntary Proceedings. Lessee or any of its
Material Subsidiaries shall (i) apply for or consent to the appointment of
a receiver, trustee, liquidator or custodian of itself or of all or a
substantial part of its property, (ii) be unable, or admit in writing its
inability, to pay its debts generally as they mature, (iii) make a general
assignment for the benefit of its or any of its creditors, (iv) be
dissolved or liquidated in full or in part, (v) become insolvent (as such
term may be defined or interpreted under any applicable statute), (vi)
commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in effect
or consent to any such relief or to the appointment of or taking
possession of its property by any official in an involuntary case or other
proceeding commenced against it, or (vi) take any action for the purpose
of effecting any of the foregoing; or
(g) Involuntary Proceedings. Proceedings for the appointment of a
receiver, trustee, liquidator or custodian of Lessee or any of its
Material Subsidiaries or of all or a substantial part of the property
thereof, or an involuntary case or other proceedings seeking liquidation,
reorganization or other relief with respect to Lessee or any of its
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Material Subsidiaries or the debts thereof under any bankruptcy,
insolvency or other similar law now or hereafter in effect shall be
commenced and an order for relief entered or such proceeding shall not be
dismissed or discharged within thirty (30) days of commencement; or
(h) Judgments. (i) One or more judgments, orders, decrees or
arbitration awards requiring Lessee and/or its Subsidiaries to pay an
aggregate amount of $40,000,000 or more (exclusive of amounts covered by
insurance issued by an insurer not an Affiliate of Lessee and otherwise
satisfying the requirements set forth in Subparagraph 3.03(b)) shall be
rendered against Lessee and/or any of its Subsidiaries in connection with
any single or related series of transactions, incidents or circumstances
and the same shall not be satisfied, vacated or stayed for a period of
thirty (30) consecutive days after issue or levy; (ii) any judgment, writ,
assessment, warrant of attachment, tax lien or execution or similar
process shall be issued or levied against a substantial part of the
property of Lessee or any of its Subsidiaries and the same shall not be
released, stayed, vacated or otherwise dismissed within thirty (30) days
after issue or levy; or (iii) any other judgments, orders, decrees,
arbitration awards, writs, assessments, warrants of attachment, tax liens
or executions or similar processes which, alone or in the aggregate, are
reasonably likely to have a Material Adverse Effect are rendered, issued
or levied; or
(i) Operative Documents. Any Operative Document or any material
term thereof shall cease to be, or be asserted by Lessee or any of its
Subsidiaries not to be, a legal, valid and binding obligation of Lessee or
any of its Subsidiaries enforceable in accordance with its terms; or
(j) ERISA. Any Reportable Event which constitutes grounds for the
termination of any Employee Benefit Plan by the PBGC or for the
appointment of a trustee by the PBGC to administer any Employee Benefit
Plan shall occur, or any Employee Benefit Plan shall be terminated within
the meaning of Title IV of ERISA or a trustee shall be appointed by the
PBGC to administer any Employee Benefit Plan; or
(k) Major Casualty or Condemnation. Any Major Casualty or Major
Condemnation affecting the Property shall occur; or
(l) Change of Control. Any Change of Control shall occur;
Provided, however, that any such Event of Default (except any Event of Default
under Subparagraph 5.01(f) or Subparagraph 5.01(g)) shall be deemed cured and
shall cease to be an Event of Default hereunder if, prior to the time any Lessor
Party begins to exercise any of its rights and remedies for an Event of Default
under the Operative Documents, Lessee delivers to Lessor:
(A) In the case of any Event of Default occurring
under Subparagraph 5.01(e), written evidence that the Persons
owing the applicable Indebtedness have made the required
payment in the case of a failure to pay and, in all cases
(including failure to pay), all holders of such Indebtedness
have waived (without the payment by the Persons owing such
Indebtedness of any waiver fee, penalty or other similar
payment or the provision by
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such Persons of additional collateral) such holders' rights to
cause such Indebtedness to become due (and/or to be secured by
cash collateral); and
(B) In the case of all other Events of Default (except
Events of Default under Subparagraph 5.01(f) or Subparagraph
5.01(g)), written evidence that such Events of Default have
been cured.
5.02. General Remedies. In all cases, upon the occurrence or existence of
any Event of Default and at any time thereafter unless such Event of Default is
waived, Lessor may, with the consent of the Required Participants, or shall,
upon instructions from the Required Participants, exercise any one or more of
the following rights and remedies (except that the remedy set forth in the first
sentence of Subparagraph 5.02(a) shall be automatic):
(a) Termination of Commitments. If such Event of Default is an
Event of Default of the type described in Subparagraph 5.01(f) or
Subparagraph 5.01(g) affecting Lessee, immediately and without notice the
obligation of Lessor to make Advances and the obligations of the
Participants to fund Advances shall automatically terminate. If such Event
of Default is any other Event of Default, Lessor may by written notice to
Lessee, terminate the obligation of Lessor to make Advances and the
obligations of the Participants to fund Advances.
(b) Appointment of a Receiver. Lessor may apply to any court of
competent jurisdiction for, and obtain appointment of, a receiver for the
Property.
(c) Specific Performance. Lessor may bring an action in any court
of competent jurisdiction to obtain specific enforcement of any of the
covenants or agreements of Lessee in this Agreement or any of the other
Operative Documents.
(d) Collection of Issues and Profits. Lessor may collect Issues
and Profits as provided in Subparagraph 2.07(c) and apply the proceeds to
pay Lessee Obligations.
(e) Protection of Property. Lessor may enter, take possession of,
manage and operate all or any part of the Property or take any other
actions which it reasonably determines are necessary to protect the
Property and the rights and remedies of the Lessor Parties under this
Agreement and the other Operative Documents, including (i) taking and
possessing all of Lessee's books and records relating to the Property;
(ii) entering into, enforcing, modifying, or canceling subleases on such
terms and conditions as Lessor may consider proper; (iii) obtaining and
evicting tenants; (iv) fixing or modifying sublease rents; (v) collecting
and receiving any payment of money owing to Lessee; (vi) completing any
unfinished Improvements; and/or (vii) contracting for and making repairs
and alterations.
(f) Other Rights and Remedies. In addition to the specific rights
and remedies set forth above in this Paragraph 5.02 and in Paragraph 5.03
and Paragraph 5.04, Lessor may exercise any other right, power or remedy
permitted to it by any applicable Governmental Rule, either by suit in
equity or by action at law, or both.
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5.03. Lease Remedies. If the transaction evidenced by this Agreement and
the other Operative Documents is treated as a lease, upon the occurrence or
existence of any Event of Default and at any time thereafter unless such Event
of Default is waived, Lessor may, with the consent of the Required Participants,
or shall, upon instructions from the Required Participants, exercise any one or
more of the following rights and remedies in addition to those rights and
remedies set forth in Paragraph 5.02:
(a) Termination of Lease. Lessor may, by written notice to Lessee,
terminate this Agreement on a Termination Date which is prior to the
Scheduled Expiration Date, subject to Subparagraph 3.02(1) of the Purchase
Agreement. Such Termination Date shall be the last day of a Rental Period
unless Required Participants shall otherwise direct. On such Termination
Date (which shall then be the Expiration Date), Lessee shall pay all
unpaid Base Rent accrued through such date, all Supplemental Rent due and
payable on or prior to such date and all other amounts payable by Lessee
on the Expiration Date pursuant to this Agreement and the other Operative
Documents. Lessee also shall pay to Lessor, in addition to all accrued
Base Rent, the worth at the time of such payment of the amount by which
the unpaid Base Rent through the Scheduled Expiration Date exceeds the
amount of such rental loss for the same period that Lessee proves could
reasonably be avoided.
(b) Continuation of Lease. Lessor may exercise the rights and
remedies provided by California Civil Code Section 1951.4, including the
right to continue this Agreement in effect after Lessee's breach and
abandonment and recover Rent as it becomes due. Acts of maintenance or
preservation, efforts to relet the Property, the appointment of a receiver
upon Lessor's initiative to protect its interest under this Agreement or
withholding consent to or terminating a sublease shall not of themselves
constitute a termination of Lessee's right to possession.
(c) Removal and Storage of Property. Lessor may enter the Property
and remove therefrom all Persons and property, store such property in a
public warehouse or elsewhere at the cost of and for the account of Lessee
and sell such property and apply the proceeds therefrom pursuant to
applicable California law.
5.04. Loan Remedies. If the transaction evidenced by this Agreement and
the other Operative Documents is treated as a loan, upon the occurrence or
existence of any Event of Default and at any time thereafter unless such Event
of Default is waived, Lessor may, with the consent of the Required Participants,
or shall, upon instructions from the Required Participants, exercise any one or
more of the following rights and remedies in addition to those rights and
remedies set forth in Paragraph 5.02:
(a) Acceleration of Lessee Obligations. Lessor may, by written
notice to Lessee, terminate this Agreement on a Termination Date which is
prior to the Scheduled Expiration Date, subject to Subparagraph 3.02(1) of
the Purchase Agreement, and declare all unpaid Lessee Obligations due and
payable on such Termination Date. Such Termination Date shall be the last
day of a Rental Period unless Required Participants shall otherwise
direct. On such Termination Date (which shall then be the Expiration
Date), Lessee shall pay all unpaid Base Rent accrued through such date,
all Supplemental
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Rent due and payable on or prior to such date and all other amounts
payable by Lessee on the Expiration Date pursuant to this Agreement and
the other Operative Documents.
(b) Uniform Commercial Code Remedies. Lessor may exercise any or
all of the remedies granted to a secured party under the California
Uniform Commercial Code.
(c) Judicial Foreclosure. Lessor may bring an action in any court
of competent jurisdiction to foreclose the security interest in the
Property granted to Lessor by this Agreement or any of the other Operative
Documents.
(d) Power of Sale. Lessor may cause some or all of the Property,
including any Personal Property Collateral, to be sold under a power of
sale or otherwise disposed of in any combination and in any manner
permitted by applicable Governmental Rules.
(i) Sales of Personal Property. Lessor may dispose of any
Personal Property Collateral separately from the sale of Real
Property Collateral, in any manner permitted by Division 9 of the
California Uniform Commercial Code, including any public or private
sale, or in any manner permitted by any other applicable
Governmental Rule. Any proceeds of any such disposition shall not
cure any Event of Default or reinstate any Lessee Obligation for
purposes of Section 2924c of the California Civil Code. In
connection with any such sale or other disposition, Lessee agrees
that the following procedures constitute a commercially reasonable
sale:
(A) Lessor shall mail written notice of the sale to
Lessee not later than thirty (30) days prior to such sale.
(B) Once per week during the three (3) weeks
immediately preceding such sale, Lessor will publish notice of
the sale in a local daily newspaper of general circulation.
(C) Upon receipt of any written request, Lessor will
make the Property available to any bona fide prospective
purchaser for inspection during reasonable business hours.
(D) Notwithstanding, Lessor shall be under no
obligation to consummate a sale if, in its judgment, none of
the offers received by it equals the fair value of the
Property offered for sale.
(E) If Lessor so requests, Lessee shall assemble all
of the Personal Property Collateral and make it available to
Lessor at the site of the Land. Regardless of any provision of
this Agreement or any other Operative Document, Lessor shall
not be considered to have accepted any property other than
cash or immediately available funds in satisfaction of any
Lessee Obligation, unless Lessor has given express written
notice of its election of that remedy in accordance with
California Uniform Commercial Code Section 9505.
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The foregoing procedures do not constitute the only procedures
that may be commercially reasonable.
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(ii) Lessor's Sales of Real Property or Mixed Collateral.
Lessor may choose to dispose of some or all of the Property which
consists solely of Real Property Collateral in any manner then
permitted by applicable Governmental Rules, including without
limitation a nonjudicial trustee's sale pursuant to California Civil
Code ss.ss. 2924 et seq. In its discretion, Lessor may also or
alternatively choose to dispose of some or all of the Property, in
any combination consisting of both Real Property Collateral and
Personal Property Collateral, together in one sale to be held in
accordance with the law and procedures applicable to real property,
as permitted by Section 9501(4) of the California Uniform Commercial
Code. Lessee agrees that such a sale of Personal Property Collateral
together with Real Property Collateral constitutes a commercially
reasonable sale of the Personal Property Collateral. (For purposes
of this power of sale, either a sale of Real Property Collateral
alone, or a sale of both Real Property Collateral and Personal
Property Collateral together in accordance with California Uniform
Commercial Code Section 9501(4), will sometimes be referred to as a
"Lessor's Sale.")
(A) Before any Lessor's Sale, Lessor shall give such
notice of default and election to sell as may then be required
by applicable Governmental Rules.
(B) When all time periods then legally mandated have
expired, and after such notice of sale as may then be legally
required has been given, Lessor shall sell the property being
sold at a public auction to be held at the time and place
specified in the notice of sale.
(C) Neither Lessor nor Agent shall have any obligation
to make demand on Lessee before any Lessor's Sale.
(D) From time to time in accordance with then
applicable law, Lessor may postpone any Lessor's Sale by
public announcement at the time and place noticed for that
sale.
(E) At any Lessor's Sale, Lessor shall sell to the
highest bidder at public auction for cash in lawful money of
the United States.
(F) Lessor shall execute and deliver to the
purchaser(s) a deed or deeds conveying the Property being sold
without any covenant or warranty whatsoever, express or
implied. The recitals in any such deed of any matters or
facts, including any facts bearing upon the regularity or
validity of any Lessor's Sale, shall be conclusive proof of
their truthfulness. Any such deed shall be conclusive against
all Persons as to the facts recited in it.
(e) Foreclosure Sales.
(i) Single or Multiple. If the Property consists of more
than one lot, parcel or item of property, Lessor may:
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(A) Designate the order in which the lots, parcels
and/or items shall be sold or disposed of or offered for sale
or disposition; and
(B) Elect to dispose of the lots, parcels and/or items
through a single consolidated sale or disposition to be held
or made under the power of sale granted in Subparagraph
5.04(d), or in connection with judicial proceedings, or by
virtue of a judgment and decree of foreclosure and sale; or
through two or more such sales or dispositions; or in any
other manner Lessor may deem to be in its best interests (any
such sale or disposition, a "Foreclosure Sale;" any two or
more, "Foreclosure Sales").
If Lessor chooses to have more than one Foreclosure Sale, Lessor at
its option may cause the Foreclosure Sales to be held simultaneously
or successively, on the same day, or on such different days and at
such different times and in such order as it may deem to be in its
best interests. No Foreclosure Sale shall terminate or affect the
security interests granted to Lessor in the Property by this
Agreement on any part of the Property which has not been sold, until
all of the Lessee Obligations have been paid in full.
(ii) Credit Bids. At any Foreclosure Sale, any Person,
including any Lessor Party, may bid for and acquire the Property or
any part of it to the extent permitted by then applicable
Governmental Rules. Instead of paying cash for that property, Lessor
may settle for the purchase price by crediting the sales price of
the Property against the Lessee Obligations in any order and
proportions as Lessor in its sole discretion may choose.
5.05. Remedies Cumulative. The rights and remedies of Lessor under this
Agreement and the other Operative Documents are cumulative and may be exercised
singularly, successively, or together.
5.06. No Cure or Waiver. Neither the performance by Lessor of any of
Lessee's obligations pursuant to Paragraph 3.13 nor the exercise by Lessor of
any of its other rights and remedies under this Agreement or any other Operative
Document (including the collection of Issues and Profits and the application
thereof to the Lessee Obligations) shall constitute a cure or waiver of any
Default or nullify the effect of any notice of default or sale, unless and until
all Lessee Obligations are paid in full.
5.07. Exercise of Rights and Remedies. The rights and remedies provided to
Lessor under this Agreement may be exercised by Lessor itself, by Agent pursuant
to Subparagraph 2.02(c) of the Participation Agreement, by a court-appointed
receiver or by any other Person appointed by any of the foregoing to act on its
behalf. All of the benefits afforded to Lessor under this Agreement and the
other Operative Documents shall accrue to the benefit of Agent to the extent
provided in Subparagraph 2.02(c) of the Participation Agreement.
SECTION 6. MISCELLANEOUS.
6.01. Notices. Except as otherwise specified herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Lessee or Lessor under this
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Agreement shall be given as provided in Subparagraph 2.02(c) and Paragraph 7.01
of the Participation Agreement.
6.02. Waivers; Amendments. Any term, covenant, agreement or condition of
this Agreement may be amended or waived only as provided in the Participation
Agreement. No failure or delay by any Lessor Party in exercising any right
hereunder shall operate as a waiver thereof or of any other right nor shall any
single or partial exercise of any such right preclude any other further exercise
thereof or of any other right. Unless otherwise specified in any such waiver or
consent, a waiver or consent given hereunder shall be effective only in the
specific instance and for the specific purpose for which given.
6.03. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Lessor Parties and Lessee and their permitted
successors and assigns; provided, however, that the Lessor Parties and Lessee
shall not sell, assign or delegate their respective rights and obligations
hereunder except as provided in the Participation Agreement.
6.04. No Third Party Rights. Nothing expressed in or to be implied from
this Agreement is intended to give, or shall be construed to give, any Person,
other than the Lessor Parties and Lessee and their permitted successors and
assigns, any benefit or legal or equitable right, remedy or claim under or by
virtue of this Agreement or under or by virtue of any provision herein.
6.05. Partial Invalidity. If at any time any provision of this Agreement
is or becomes illegal, invalid or unenforceable in any respect under the law or
any jurisdiction, neither the legality, validity or enforceability of the
remaining provisions of this Agreement nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
6.06. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without reference to
conflicts of law rules.
6.07. Counterparts. This Agreement may be executed in any number of
identical counterparts, any set of which signed by all the parties hereto shall
be deemed to constitute a complete, executed original for all purposes.
6.08. Nature of Lessee's Obligations.
(a) Independent Obligation. The obligation of Lessee to pay the
amounts payable by Lessee under this Agreement and the other Operative
Documents and to perform the other Lessee Obligation are absolute,
unconditional and irrevocable obligations which are separate and
independent of the obligations of the Lessor Parties under this Agreement
and the other Operative Documents and all other events and circumstances,
including the events and circumstances set forth in Subparagraph 6.08(c).
(b) No Termination or Abatement. This Agreement and the other
Operative Documents and Lessee's obligation to pay Rent and to pay and
perform all other Lessee Obligations shall continue in full force and
effect without abatement notwithstanding the
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occurrence or existence of any event or circumstance, including any event
or circumstance set forth in Subparagraph 6.08(c).
(c) Full Payment and Performance. Lessee shall make all payments
under this Agreement and the other Operative Documents in the full amounts
and at the times required by the terms of this Agreement and the other
Operative Documents without setoff, deduction or reduction of any kind and
shall perform all other Lessee Obligations as and when required, without
regard to any event or circumstances whatsoever, including (i) the
condition of the Property (including any Improvements to the Property made
prior to the Commencement Date or during the Term); (ii) title to the
Property (including possession of the Property by any Person or the
existence of any Lien or any other right, title or interest in or to any
of the Property in favor of any Person); (iii) the value, habitability,
usability, design, operation or fitness for use of the Property; (iv) the
availability or adequacy of utilities and other services to the Property;
(v) any latent, hidden or patent defect in the Property; (vi) the zoning
or status of the Property or any other restrictions on the use of the
Property; (g) the economics of the Property; (vii) any Casualty or
Condemnation; (viii) the compliance of the Property with any applicable
Governmental Rule or Insurance Requirement; (ix) any failure by any Lessor
Party to perform any of its obligations under this Agreement or any other
Operative Document; or (x) the exercise by any Lessor Party of any of its
remedies under this Agreement or any other Operative Document; provided,
however, that this Paragraph 6.08 shall not abrogate any right which
Lessee may have to recover damages from any Lessor Party for any material
breach by such Lessor Party of its obligations under this Agreement or any
other Operative Document to the extent permitted hereunder or thereunder.
[The signature page follows.]
B-31
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IN WITNESS WHEREOF, Lessee and Lessor have caused this Agreement to be
executed as of the day and year first above written.
LESSEE: KLA-TENCOR CORPORATION
By:______________________________________
Name:_________________________________
Title:________________________________
LESSOR: LEASE PLAN U.S.A., INC.
By:______________________________________
Name:_________________________________
Title:________________________________
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STATE OF CALIFORNIA )
) ss
COUNTY OF __________________)
On _____________, 1997, before me, ___________________ a Notary Public in
and for the State of California, personally appeared , personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s) or the
entity on behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
[SEAL]
____________________________________________
B-33
158
STATE OF CALIFORNIA )
) ss
COUNTY OF __________________)
On _____________, 1997, before me, ___________________ a Notary Public in
and for the State of California, personally appeared , personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s) or the
entity on behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
[SEAL]
____________________________________________
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EXHIBIT A
LAND
B-35
160
EXHIBIT B
RELATED GOODS
The personal property, among other goods, conveyed by BNP Leasing
Corporation to Lease Plan U.S.A., Inc. by Bill of Sale, Assignment of Contract
Rights and Intangible Assets dated as of November 12, 1997 with respect to Tract
2 and Tract 3.
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161
EXHIBIT B(1)
SUPPLEMENT TO EXHIBIT B TO LEASE AGREEMENT
[Date]
Lease Plan U.S.A., Inc.
c/o ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndication Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to that certain Lease Agreement, dated as of
November 12, 1997 (the "Lease Agreement"), between KLA-Tencor Corporation
("Lessee") and Lease Plan U.S.A., Inc. ("Lessor").
2. Lessee hereby agrees that the description of "Related Goods" set
forth in Exhibit B to the Lease Agreement shall be supplemented by adding
thereto the Related Goods described in Attachment 1 hereto. Lessee hereby
accepts all such Related Goods and agrees that such Related Goods constitute
part of the Property subject to the Lease Agreement.
IN WITNESS WHEREOF, Lessee has executed this Supplement to Exhibit B on
the date set forth above.
LESSEE: KLA-TENCOR CORPORATION
By:_____________________________________
Name:________________________________
Title:_______________________________
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ATTACHMENT 1
TO
SUPPLEMENT TO EXHIBIT B
B-38
163
EXHIBIT C
NOTICE OF RENTAL PERIOD SELECTION
[Date]
Lease Plan U.S.A., Inc.
c/o ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to that certain Participation Agreement, dated as
of November 12,1997 (the "Participation Agreement"), among KLA-Tencor
Corporation ("Lessee"), Lease Plan U.S.A., Inc. ("Lessor"), the financial
institutions listed in Schedule I to the Participation Agreement (the
"Participants") and ABN AMRO Bank N.V., as agent for the Participants (in such
capacity, "Agent"). Unless otherwise indicated, all terms defined in the
Participation Agreement have the same respective meanings when used herein.
2. [Insert one of the following as appropriate]
[Pursuant to Subparagraph 2.03(a) of the Lease Agreement, Lessee
hereby irrevocably selects a new Rental Period for a Portion of the Outstanding
Lease Amount as follows:
(a) The Portion for which a new Rental Period is to be selected is
the Portion in the amount of $__________ with a current Rental Period
which began on ________, ____ and ends on __________, ____; and
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(b) The next Rental Period for such Portion shall be __________
month[s].]
[Pursuant to Subparagraph 2.03(a) of the Lease Agreement, Lessee
hereby irrevocably elects to divide a Portion of the Outstanding Lease Amount
into further Portions as follows:
(a) The Portion which is to be divided is the Portion in the
amount of $__________ with a current Rental Period which began on
________, ____ and ends on __________, ____; and
(b) On the last day of the current Rental Period for such Portion,
such Portion is to be divided into the following Portions with the
following initial Rental Periods:
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Portion Rental Period
------- -------------
$___________ _______ month[s]
$___________ _______ month[s]
$___________ _______ month[s]
$___________ _______ month[s]]
[Pursuant to Subparagraph 2.03(a) of the Lease Agreement, Lessee
hereby irrevocably elects to combine into a single Portion certain Portions of
the Outstanding Lease Amount as follows:
(a) The Portions which are to be combined are the Portions in the
amounts of $__________, $_________ and $_______, each with a current
Rental Period which ends on __________, ____; and
(b) The initial Rental Period for such newly created Portion shall
be __________ month[s].]
3. Lessee hereby certifies to the Lessor Parties that, on the date of
this Acquisition Request and after giving effect to the use of the requested
Acquisition Advance[s] as described above:
(a) The representations and warranties of Lessee set forth in
Paragraph 4.01 of the Participation Agreement and in the other Operative
Documents are true and correct in all material respects as if made on such
date (except for representations and warranties expressly made as of a
specified date, which shall be true as of such date);
(b) No Default has occurred and is continuing; and
(c) All of the Operative Documents are in full force and effect.
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IN WITNESS WHEREOF, Lessee has executed this Acquisition Request on
the date set forth above.
KLA-TENCOR CORPORATION
By: _______________________________
Name: _________________________
Title: ________________________
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Recording requested by and EXECUTION COPY
when recorded return to:
Thomas Y. Coleman, Esq.
Orrick, Herrington & Sutcliffe
Old Federal Reserve Bank Building
400 Sansome Street
San Francisco, California 94111
================================================================================
LEASE AGREEMENT,
CONSTRUCTION DEED OF TRUST WITH ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
BETWEEN
KLA-TENCOR CORPORATION
AND
LEASE PLAN U.S.A., INC.
NOVEMBER 12, 1997
================================================================================
THIS LEASE IS NOT INTENDED TO CONSTITUTE
A TRUE LEASE FOR INCOME TAX PURPOSES
(SEE PARAGRAPH 2.06)
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SECTION 1. INTERPRETATION.................................................................................2
1.01. Definitions....................................................................................2
1.02. Rules of Construction..........................................................................2
SECTION 2. BASIC PROVISIONS...............................................................................2
2.01. Lease of the Property..........................................................................2
2.02. Term...........................................................................................2
2.03. Rent...........................................................................................3
2.04. Use............................................................................................5
2.05. "As Is" Lease..................................................................................5
2.06. Nature of Transaction..........................................................................5
2.07. Security, Etc..................................................................................5
SECTION 3. OTHER LESSEE AND LESSOR RIGHTS AND OBLIGATIONS.................................................8
3.01. Maintenance, Repair, Etc.......................................................................8
3.02. Risk of Loss...................................................................................9
3.03. Insurance......................................................................................9
3.04. Casualty and Condemnation.....................................................................12
3.05. Taxes.........................................................................................15
3.06. Environmental Matters.........................................................................15
3.07. Liens, Easements, Etc.........................................................................16
3.08. Subletting....................................................................................17
3.09. Utility Charges...............................................................................18
3.10. Removal of Property...........................................................................18
3.11. Compliance with Governmental Rules and Insurance Requirements.................................18
3.12. Permitted Contests............................................................................18
3.13. Lessor Obligations; Right to Perform Lessee Obligations.......................................19
3.14. Inspection Rights.............................................................................19
SECTION 4. EXPIRATION DATE...............................................................................19
4.01. Termination by Lessee Prior to Scheduled Expiration Date......................................19
4.02. Surrender of Property.........................................................................19
4.03. Holding Over..................................................................................19
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SECTION 5. DEFAULT.......................................................................................20
5.01. Events of Default.............................................................................20
5.02. General Remedies..............................................................................22
5.03. Lease Remedies................................................................................23
5.04. Loan Remedies.................................................................................24
5.05. Remedies Cumulative...........................................................................27
5.06. No Cure or Waiver.............................................................................27
5.07. Exercise of Rights and Remedies...............................................................27
SECTION 6. MISCELLANEOUS.................................................................................27
6.01. Notices.......................................................................................27
6.02. Waivers; Amendments...........................................................................27
6.03. Successors and Assigns........................................................................27
6.04. No Third Party Rights.........................................................................28
6.05. Partial Invalidity............................................................................28
6.06. Governing Law.................................................................................28
6.07. Counterparts..................................................................................28
6.08. Nature of Lessee's Obligations................................................................28
EXHIBITS
A Land (2.01(a))
B Related Goods (2.01(d))
C Notice of Rental Period Selection (2.03(a))
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EXHIBIT C
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement" herein), dated as of November
12, 1997, is entered into by and between:
(1) KLA-TENCOR CORPORATION, a Delaware corporation ("Lessee"); and
(2) LEASE PLAN U.S.A., INC., a Georgia corporation ("Lessor").
RECITALS
A. Lessee has requested Lessor and the financial institutions which are
"Participants" under the Participation Agreement referred to in Recital B below
(such financial institutions to be referred to collectively as the
"Participants") to provide to Lessee a certain lease facility. Pursuant to such
facility:
(1) Lessor would (a) acquire certain property designated by Lessee
(either through purchase or lease), (b) lease to Lessee such property and
certain other property currently held by Lessor, (c) appoint Lessee as
Lessor's agent to make certain improvements to a portion of such property,
(d) make advances to finance such improvements and to pay certain related
expenses, and (e) grant to Lessee the right to purchase such property; and
(2) The Participants would participate in such lease facility by
(a) funding the purchase prices and other advances to be made by Lessor
and (b) acquiring participation interests in the rental and certain other
payments to be made by Lessee.
B. Pursuant to a Participation Agreement dated of even date herewith
(the "Participation Agreement") among Lessee, Lessor, the Participants and ABN
AMRO Bank N.V., as agent for the Participants (in such capacity, "Agent"),
Lessor and the Participants have agreed to provide such lease facility upon the
terms and subject to the conditions set forth therein, including without
limitation the execution and delivery of this Agreement setting forth the terms
for the purchase of the Property by Lessee from Lessor.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
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171
SECTION 1. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this Agreement or any
other Operative Document, each term set forth in Schedule 1.01 to the
Participation Agreement, when used in this Agreement or any other Operative
Document, shall have the respective meaning given to that term in such Schedule
1.01 or in the provision of this Agreement or other document, instrument or
agreement referenced in such Schedule 1.01.
1.02. Rules of Construction. Unless otherwise indicated in this Agreement
or any other Operative Document, the rules of construction set forth in Schedule
1.02 to the Participation Agreement shall apply to this Agreement and the other
Operative Documents.
SECTION 2. OPTIONAL PURCHASE BY LESSEE DURING THE TERM.
2.01. Term Purchase Option. Subject to the terms and conditions of this
Agreement and the other Operative Documents (including those set forth below in
this Paragraph 2.01), Lessee may, at its option on any Business Day prior to the
Scheduled Expiration Date of the Lease Agreement, terminate the Lease Agreement
and purchase all of the Property (the "Term Purchase Option").
(a) Notice of Term Purchase Option Exercise. Lessee shall notify
Lessor of Lessee's exercise of the Term Purchase Option by delivering to
Lessor an irrevocable written notice in the form of Exhibit A(1),
appropriately completed (the "Notice of Term Purchase Option Exercise"),
which states that Lessee is exercising its right to terminate the Lease
Agreement prior to the Scheduled Expiration Date thereof pursuant to
Paragraph 4.01 of the Lease Agreement and purchase all of the Property
pursuant to this Paragraph 2.01 and specifies the Business Day on which
such termination and purchase are to occur (which date, after the delivery
of such notice, shall be the Expiration Date). Lessee shall give the
Notice of Term Purchase Option Exercise to Lessor at least one (1) month
prior to the Business Day on which such termination and purchase are to
occur. The Notice of Term Purchase Option Exercise shall be delivered as
required by Subparagraph 2.02(c) and Paragraph 7.01 of the Participation
Agreement; provided, however, that Lessee shall promptly deliver the
original of any Notice of Term Purchase Option Exercise initially
delivered by facsimile.
(b) Term Purchase Option Purchase Price. Lessee shall pay to
Lessor on the Expiration Date, as the purchase price for the Property, an
amount equal to the Outstanding Lease Amount on such date.
(c) Effect of Certain Events. Lessee may exercise the Term
Purchase Option as provided in this Paragraph 2.01, notwithstanding (i)
the prior election by Lessee to exercise the Partial Purchase Option
pursuant to Paragraph 2.02, the Marketing Option pursuant to Paragraph
3.01 and Paragraph 3.02 or the Expiration Date Purchase Option pursuant to
Paragraph 3.01 and Paragraph 3.03, provided that Lessor completes the
purchase of the Property pursuant to the Term Purchase Option and this
Agreement prior
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to the Scheduled Expiration Date and Lessor has not previously entered
into an agreement with a Designated Purchaser or an Assignee Purchaser to
sell the Property or (ii) the occurrence of any Event of Default or the
exercise by the Lessor Parties of any of their rights or remedies under
the Operative Documents following the occurrence of such Event of Default,
provided that such exercise by Lessee of the Term Purchase Option after
the occurrence of any Event of Default shall not require the Lessor
Parties to cease exercising such rights and remedies unless and until
Lessee completes the purchase of the Property pursuant to the Term
Purchase Option and this Agreement.
2.02. Partial Purchase Option. Subject to the terms and conditions of this
Agreement and the other Operative Documents (including those set forth below in
this Paragraph 2.02), Lessee may, at its option on any Business Day prior to the
Scheduled Expiration Date of the Lease Agreement, without terminating the Lease
Agreement, purchase one or more Tracts (but less than all) of the Property (the
"Partial Purchase Option").
(a) Notice of Partial Purchase Option Exercise. Lessee shall
notify Lessor of Lessee's exercise of the Partial Purchase Option by
delivering to Lessor an irrevocable written notice in the form of Exhibit
A(2), appropriately completed (the "Notice of Partial Purchase Option
Exercise"), which states that Lessee is exercising its right to purchase
one or more (but less than all) Tracts of the Property prior to the
Scheduled Expiration Date pursuant to this Paragraph 2.02 and specifies
(i) the Tract(s) so to be purchased and (ii) the Business Day on which
such purchase is to occur (a "Partial Purchase Date"). Lessee shall give
each Notice of Partial Purchase Option Exercise to Lessor at least one (1)
month prior to the Partial Purchase Date on which a purchase is to occur.
Each Notice of Partial Purchase Option Exercise shall be delivered as
required by Subparagraph 2.02(c) and Paragraph 7.01 of the Participation
Agreement; provided, however, that Lessee shall promptly deliver the
original of any Notice of Partial Purchase Option Exercise initially
delivered by facsimile.
(b) Partial Purchase Option Purchase Price. Lessee shall pay to
Lessor on each Partial Purchase Date, as the purchase price for each Tract
of Property to be purchased on such date, an amount equal to the portion
of the Outstanding Lease Amount on such date attributable to such Tract of
Property.
(c) Conditions to Exercise of Partial Purchase Option. The
purchase by Lessee on any Partial Purchase Date of any Tract of Property
pursuant to this Paragraph 2.02 is subject to receipt by Lessor, on or
prior to such Partial Purchase Date, of new Expiration Date Appraisals for
all Tracts of Property that are to remain subject to the Lease Agreement
after such Partial Purchase Date, which appraisals (i) each shall be dated
a recent date prior to such Partial Purchase Date and (ii) together shall
assess the aggregate Fair Market Value of all such remaining Tracts of
Property at not less than the Outstanding Lease Amount that will remain
after application of all amounts to be applied thereto on such Partial
Purchase Date.
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SECTION 3. OBLIGATIONS OF LESSEE ON THE EXPIRATION DATE.
3.01. Alternative. Unless Lessee has exercised the Term Purchase Option,
on the Expiration Date of the Lease Agreement, Lessee shall either:
(a) Marketing Option. Cause another Person to complete the
purchase of the Property pursuant to Paragraph 3.02 (the "Marketing
Option"); or
(b) Expiration Date Purchase Option. Purchase the Property itself
pursuant to Paragraph 3.03 (the "Expiration Date Purchase Option").
Lessee shall elect either the Marketing Option or the Expiration Date Purchase
Option by delivering to Lessor, not more than nine (9) months nor less than six
(6) months prior to the Scheduled Expiration Date for the Lease Agreement,
either (i) a written notice in the form of Exhibit B, appropriately completed
(the "Notice of Marketing Option Exercise"), or (ii) a written notice in the
form of Exhibit C, appropriately completed (the "Notice of Expiration Date
Purchase Option Exercise"); provided, however, that (A) Lessee shall be deemed
to have elected the Expiration Date Purchase Option if it fails to deliver
either notice as required by this sentence; (B) Lessee's election of the
Expiration Date Purchase Option (whether expressly by a notice so delivered or
implicitly by the failure to deliver any notice) shall be irrevocable; and (C)
Lessee may not elect the Marketing Option if (1) the Expiration Date has been
accelerated to an earlier Termination Date following a Marketing Option Event of
Default under the Lease Agreement or (2) the conditions set forth in Paragraph
3.04 of the Participation Agreement are not satisfied on the date Lessee
delivers its election notice or on the Expiration Date of the Lease Agreement
(unless, in each case, the only event or condition causing such conditions not
to be so satisfied is the occurrence of a Non-Marketing Option Event of Default
under the Lease Agreement). The Notice of Marketing Option Exercise or the
Notice of Expiration Date Purchase Option Exercise shall be delivered as
required by Subparagraph 2.02(c) and Paragraph 7.01 of the Participation
Agreement; provided, however, that Lessee shall promptly deliver to Lessor the
original of any such notice initially delivered by facsimile.
3.02. Marketing Option.
(a) General. If Lessee elects to exercise the Marketing Option by
delivering to Lessor a Notice of Marketing Option Exercise pursuant to
Paragraph 3.01, Lessee shall (i) locate a purchaser which satisfies the
requirements set forth in this Paragraph 3.02, (ii) arrange for such
purchaser to purchase the Property on the Expiration Date for a purchase
price which is not less than the lesser of (A) the sum of the total
Tranche B Proportionate Share and the total Tranche C Proportionate Share
of the Outstanding Lease Amount and (B) the Fair Market Value of the
Property and (iii) otherwise comply, or cause compliance with, the
requirements of this Paragraph 3.02 and the other applicable provisions of
this Agreement.
(b) Lessee's Marketing Obligations.
(i) Initial Marketing Period. During the period beginning on
the date Lessee delivers the Notice of Marketing Option Exercise and
ending on the date which is four (4) months prior to the Expiration
Date of the Lease Agreement (the
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"Initial Marketing Period"), Lessee shall use reasonable efforts to
solicit Conforming Bids from potential purchasers of the Property.
On or prior to the last day of the Initial Marketing Period, Lessee
shall deliver to Lessor any Conforming Bid selected by Lessee (the
"Initial Bid"). If the purchase price specified in the Initial Bid
is equal to or greater than the sum of the total Tranche B
Proportionate Share and the total Tranche C Proportionate Share of
the Outstanding Lease Amount, Lessor shall accept such bid and
Lessee shall have no further obligations to solicit additional bids.
(ii) Secondary Marketing Period. If Lessee does not submit an
Initial Bid or if the purchase price specified in the Initial Bid is
less than the sum of the total Tranche B Proportionate Share and the
total Tranche C Proportionate Share of the Outstanding Lease Amount,
Lessor may reject such bid and Lessee shall, during the period which
begins on the day following the Initial Marketing Period and ends on
the date two (2) months prior to the Expiration Date of the Lease
Agreement (the "Secondary Marketing Period"):
(A) Use its best efforts to solicit additional
Conforming Bids, including the engagement of experienced and
knowledgeable brokers;
(B) Furnish to each Lessor Party copies of all bids
and otherwise provide each Lessor Party with such information
relating to the marketing of the Property as such Person may
reasonably request in writing;
(C) Agree to provide to all potential purchasers all
customary seller's indemnities (including environmental
indemnities), representations and warranties regarding the
Property (including the title to, except for Lessor Liens, and
condition of the Property);
(D) Furnish to each Lessor Party copies of
environmental reports, architect's certificates, licenses,
permits and other evidence reasonably requested by such Person
to establish that no Default has occurred and is continuing
under the Lease Agreement;
(E) Permit any Lessor Party or potential purchaser to
inspect the Property and the maintenance records for the
Property upon reasonable prior written notice and during
normal business hours and provide to each such Person all
information regarding the Property reasonably requested by
such Person in writing;
(F) Take all other commercially reasonable steps to
secure the best price for the Property; and
(G) Submit to Lessor on or prior to the last day of
the Secondary Marketing Period any Conforming Bid selected by
Lessee with a purchase price which is equal to or greater than
the sum of the total Tranche B Proportionate Share and the
total Tranche C Proportionate
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Share of the Outstanding Lease Amount or, if no such
Conforming Bid was received by Lessee, the highest Conforming
Bid received by Lessee during the Secondary Marketing Period.
During the Secondary Marketing Period, any Lessor Party shall have
the right to submit one or more bids or solicit bids from other
Persons.
(c) Conforming Bids. Each bid must meet each of the following
requirements (each such bid to be referred to herein as a "Conforming
Bid"):
(i) The bid may be submitted by any Person other than (A) a
Person which is an Affiliate of Lessee or (B) a Person which has an
agreement (whether express or implied) with Lessee or any of its
Affiliates to sell, lease or otherwise make available to Lessee or
any of its Affiliates any portion of the Property;
(ii) The bidder must agree in writing to purchase the
Property on the Expiration Date of the Lease Agreement for a
purchase price to be paid in cash which is not less than the lesser
of (A) the sum of the total Tranche B Proportionate Share and the
total Tranche C Proportionate Share of the Outstanding Lease Amount
on such date and (B) the Fair Market Value of the Property on such
date;
(iii) The bidder must agree to purchase the Property "as is"
without any representations, warranties or indemnities, except for
(A) any representations, warranties or indemnities provided by
Lessor and Lessee pursuant to Subparagraph 4.01(b) and (B) any
representations, warranties or indemnities provided by Lessee
pursuant to clause (ii)(C) of Subparagraph 3.02(b); and
(iv) The bidder must agree to be bound by the other terms and
conditions of this Agreement applicable to bidders.
(d) Lessor's Obligation to Accept Bids. If, at any time on or
prior to the last day of the Secondary Marketing Period, Lessee submits to
Lessor a Conforming Bid under this Paragraph 3.02 with a purchase price
which is equal to or greater than the sum of the total Tranche B
Proportionate Share and the total Tranche C Proportionate Share of the
Outstanding Lease Amount, Lessor shall accept such bid. If Lessee submits
to Lessor a Conforming Bid under this Paragraph 3.02 with a purchase price
which is less than the sum of the total Tranche B Proportionate Share and
the total Tranche C Proportionate Share of the Outstanding Lease Amount,
Lessor shall not accept such bid unless so directed by Required
Participants. If Lessee fails to submit a bid to Lessor on or prior to the
last day of the Secondary Marketing Period which Lessor is so required to
accept, Lessor shall retain the Property after the Expiration Date of the
Lease Agreement; provided, however, that Lessee's payment obligations on
such Expiration Date shall be limited to the amounts payable pursuant to
clause (iii) of Subparagraph 4.06(a) if (i) Lessor retains the Property
after Lessee submits a Conforming Bid on or prior to the last day of the
Secondary Marketing Period in accordance with clause (ii) of Subparagraph
3.02(b) and (ii) the Marketing Option has not terminated prior to such
Expiration Date
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pursuant to Subparagraph 3.02(f). Lessor shall notify Lessee of Lessor's
election to retain the Property by delivering to Lessee, at least ten (10)
days prior to the Expiration Date of the Lease Agreement, a written notice
of such election.
(e) Purchase Price. If Lessor accepts any bid by any Person, such
Person (the "Designated Purchaser") shall pay to Lessor on the Expiration
Date of the Lease Agreement, as the purchase price for the Property, the
amount set forth in such bid as the purchase price.
(f) Termination of the Marketing Option. Lessee's right to
exercise the Marketing Option shall immediately terminate and Lessee shall
purchase the Property on the Expiration Date of the Lease Agreement
pursuant to Paragraph 3.03 if (i) Lessee fails to comply with any of its
obligations under this Paragraph 3.02; (ii) a Marketing Option Event of
Default under the Lease Agreement occurs after Lessee delivers the Notice
of Marketing Option Exercise; (iii) the conditions precedent set forth in
Paragraph 3.04 of the Participation Agreement are not satisfied on the
Expiration Date of the Lease Agreement (unless the only event or condition
causing such conditions not to be so satisfied is the occurrence of a
Non-Marketing Option Event of Default under the Lease Agreement); or (iv)
the Designated Purchaser fails to consummate the purchase of the Property
on the Expiration Date of the Lease Agreement in accordance with its
accepted bid and this Agreement, without regard to the reason for such
failure (except as otherwise provided in the following proviso); provided,
however, that, if the Designated Purchaser fails to consummate the
purchase of the Property on the Expiration Date solely due to Lessor's
failure to remove Lessor Liens or deliver the required deed and bill of
sale or other documents required to be delivered by Lessor hereunder,
Lessee's right to exercise the Marketing Option shall not terminate,
Lessee shall not be required to purchase the Property on the Expiration
Date and Lessee's payment obligations on the Expiration Date shall be
limited to the amounts set forth in clause (ii) of Subparagraph 4.06(a).
(g) Residual Value Guaranty Amount and Indemnity Amount. Unless
Lessee's right to exercise the Marketing Option has terminated and Lessee
is required to purchase the Property on the Expiration Date of the Lease
Agreement pursuant to Paragraph 3.03, Lessee shall pay to Lessor on such
Expiration Date the following:
(i) An amount equal to the total Tranche A Proportionate
Share of the Outstanding Lease Amount under on such date (the
"Residual Value Guaranty Amount"); and
(ii) An amount equal to the decrease, if any, between the
Commencement Date and the Expiration Date of the Lease Agreement in
the Fair Market Value of the Property caused by (A) any
representation or warranty of Lessee or any of its Affiliates
regarding the Property set forth in any of the Operative Documents
proving to be false or inaccurate when made, (B) the existence of,
or the failure of Lessee to pay any Governmental Charge,
Indebtedness or other obligation which might give rise to, any Liens
in the Property (other than Permitted Property Liens), (C) the
failure of Lessee to complete any New Improvements or any
Modifications or (D) any other failure of
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Lessee to comply with any of its obligations regarding the Property
set forth in any of the Operative Documents (the "Indemnity
Amount");
Provided, however, that (A) Lessee shall not be obligated to pay any
Residual Value Guaranty Amount or Indemnity Amount if the purchase price
paid to Lessor equals or exceeds the Outstanding Lease Amount on such date
and (B) the sum of any Residual Value Guaranty Amount and Indemnity Amount
payable to Lessor on the Expiration Date of the Lease Agreement shall not
exceed the deficiency, if any, between such Outstanding Lease Amount and
such purchase price.
(h) Determination of Fair Market Value and Indemnity Amount. If
the purchase price specified in the Initial Bid is less than the sum of
the total Tranche B Proportionate Share and the total Tranche C
Proportionate Share of the Outstanding Lease Amount, Lessor may, on or
prior to the last day of the Secondary Marketing Period (if Lessee has not
previously delivered to Lessor a Conforming Bid with a purchase price
equal to or greater than the sum of the total Tranche B Proportionate
Share and the total Tranche C Proportionate Share of the Outstanding Lease
Amount), deliver to Lessee a written notice of Lessor's determination of
the current Fair Market Value of the Property and the Indemnity Amount. To
determine such amounts, Lessor shall obtain Appraisals of the Property
which set forth:
(i) A current Appraisal of the Fair Market Value of the
Property in its then existing condition (the "Current Appraisal");
and
(ii) An Appraisal of the Fair Market Value of the Property
which assumes that (A) all representations and warranties regarding
the Property made by Lessee or any of its Affiliates in any of the
Operative Documents were true and correct when made; (B) Lessee has
maintained the Property in compliance with all applicable
Governmental Rules, Insurance Requirements and the Operative
Documents; (C) Lessee has completed all Modifications and any other
New Improvements in a good and workmanlike manner and otherwise as
required by the Operative Documents; (D) Lessee has repaired the
Property as required by the Operative Documents following any
Casualty; (E) Lessee has restored the Property as required by the
Operative Documents following any Condemnation; (F) Lessee has paid
all Governmental Charges, Indebtedness and other obligations which,
if unpaid, might give rise to a Lien (other than a Lessor Lien) on
the Property; (G) Lessee has removed all Liens on the Property
except for Permitted Property Liens and Lessor Liens; and (H) Lessee
has performed all of its other obligations as required by the
Operative Documents (the "Assumed Appraisal").
In the absence of manifest error, (A) the Current Appraisal shall
constitute the current Fair Market Value of the Property and (B) the
difference between the Current Appraisal and the Assumed Appraisal shall
constitute the Indemnity Amount if the Current Appraisal is less than the
Assumed Appraisal.
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(i) Lessee not an Agent. Lessee shall not be an agent for any of
the Lessor Parties in arranging for a purchaser of the Property. No Lessor
Party shall be bound by any acts of Lessee.
(j) Excess Proceeds. If, on the Expiration Date of the Lease
Agreement, after the application by Lessor of all amounts received by
Lessor on such date to the Outstanding Lease Amount, all unpaid Rent
accrued through or due and payable on or prior to such date and all other
amounts, if any, due and payable by Lessee under the Operative Documents
on or prior to such date, any excess amount remains, Lessor shall pay such
excess amount to Lessee.
(k) Creditworthiness of Designated Purchaser. Lessee assumes all
responsibility for determining the creditworthiness of any potential
purchaser on any bid submitted by Lessee to Lessor hereunder. If, after
any purchase by a Designated Purchaser hereunder, the purchase price paid
by such Designated Purchaser is recovered from any Lessor Party, Lessee
shall reimburse such Lessor Party for such recovery unless such recovery
is due solely to a material misrepresentation or covenant breach by such
Lessor Party.
(l) Exercise of Marketing Option After Non-Marketing Option Event
of Default. If Lessor notifies Lessee pursuant to Subparagraph 5.03(a) or
Subparagraph 5.04(a) of the Lease Agreement that Lessor is terminating the
Lease Agreement on a Termination Date which is prior to the Scheduled
Expiration Date of the Lease Agreement and the only basis for such early
termination is the occurrence of a Non-Marketing Option Event of Default,
Lessee may, subject to Paragraph 3.01, elect to exercise the Marketing
Option if, not later than ten (10) Business Days after it receives from
Lessor such notice of early termination, it (i) delivers to Lessor a
Notice of Marketing Option Exercise, (ii) delivers to Agent (A) a Cash
Collateral Agreement in form and substance reasonably satisfactory to
Lessor and Agent and (B) Cash Collateral in an amount not less than 105%
of the total Tranche A Proportionate Share of the Outstanding Lease
Amount, and (iii) delivers to Lessor an opinion in form and substance
reasonably satisfactory to Lessor regarding the Cash Collateral Agreement
and Lessor's security interest in such Cash Collateral and (iv) takes such
other actions as may be necessary to grant to Agent first priority
perfected security interests in such Cash Collateral in accordance with
the Cash Collateral Agreement. Upon the delivery by Lessee to Lessor of a
Notice of Marketing Option Exercise and satisfaction of the Cash
Collateral requirements set forth in the preceding sentence of this
Subparagraph 3.02(l), the Expiration Date of the Lease Agreement shall, if
the conditions to the exercise of the Marketing Option set forth in
Paragraph 3.01 are satisfied, be extended to the first Business Day that
is six (6) months after the date of receipt by Lessor of such Notice of
Marketing Option Exercise, provided, however, that in no event shall the
Expiration Date of the Lease Agreement be extended beyond the Scheduled
Expiration Date. Any exercise by Lessee of the Marketing Option pursuant
to this Subparagraph 3.02(l) shall be subject to the terms and conditions
otherwise set forth in this Agreement.
(m) Lessor's Obligation to Sell. If Lessor retains the Property
after the Expiration Date for any reason under the Operative Documents
without a judicial or non-
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judicial foreclosure sale or a deed-in-lieu of foreclosure from Lessee,
Lessor thereafter shall use commercially reasonable efforts to sell the
Property in a reasonable time to one or more unrelated third parties for
the Fair Market Value of the Property; provided, however that Lessor shall
have no obligation to sell the Property at a time, or in a manner, that
would adversely affect the Lessor Parties' ability to be paid in full the
Outstanding Lease Amount, all other amounts payable to the Lessor Parties
under the Operative Documents (including reasonable costs of maintaining,
managing and selling the Property) and carrying costs for the Outstanding
Lease Amount and such other amounts accruing at the Base Rate. Following
such sale, Lessor shall pay to Lessee any amounts received by Lessor in
excess of the amounts referred to in the proviso to the preceding
sentence.
3.03. Expiration Date Purchase Option.
(a) General. If (i) Lessee elects to exercise the Expiration Date
Purchase Option by delivering to Lessor a Notice of Expiration Date
Purchase Option Exercise pursuant to Paragraph 3.01; (ii) Lessee elects to
exercise the Marketing Option by delivering to Lessor a Notice of
Marketing Option Exercise pursuant to Paragraph 3.01 but the Marketing
Option terminates pursuant to Subparagraph 3.02(f); or (iii) Lessee fails
to deliver to Lessor either notice as required by Paragraph 3.01; Lessee
shall purchase the Property on the Expiration Date of the Lease Agreement
and otherwise comply, or cause compliance with, the requirements of this
Paragraph 3.03 and the other applicable provisions of this Agreement.
(b) Purchase Price. Lessee shall pay to Lessor on the Expiration
Date of the Lease Agreement, as the purchase price for the Property, an
amount equal to the Outstanding Lease Amount under on such date.
SECTION 4. TERMS OF ALL PURCHASES.
4.01. Representations and Warranties of Parties.
(a) Representations and Warranties of Certain Purchasers. Each
Designated Purchaser shall represent and warrant to Lessor on the
Expiration Date of the Lease Agreement (or, in the case of a purchase of a
portion of the Property pursuant to the Partial Purchase Option, on the
applicable Partial Purchase Date) as follows:
(i) Such Person is a legal entity duly organized, validly
existing and in good standing under the laws of its state of
organization or an individual with legal capacity to purchase the
Property (or, in the case of a purchase of a portion of the Property
pursuant to the Partial Purchase Option, the portion to be
purchased).
(ii) The execution, delivery and performance by such Person
of each document, instrument and agreement executed, or to be
executed, by such Person in connection with its purchase of the
Property (or, in the case of a purchase of a
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portion of the Property pursuant to the Partial Purchase Option, the
portion to be purchased) (the "Purchase Documents") and the
consummation of the transactions contemplated thereby (A) are within
the power of such Person and (B) have been duly authorized by all
necessary actions on the part of such Person.
(iii) Each Purchase Document executed, or to be executed, by
such Person has been, or will be, duly executed and delivered by
such Person and constitutes, or will constitute, a legal, valid and
binding obligation of such Person, enforceable against such Person
in accordance with its terms, except as limited by bankruptcy,
insolvency or other laws of general application relating to or
affecting the enforcement of creditors' rights generally and general
principles of equity.
(iv) Such Person has not (A) made a general assignment for
the benefit of creditors, (B) filed any voluntary petition in
bankruptcy or suffered the filing of any involuntary petition by
such Person's creditors, (C) suffered the appointment of a receiver
to take possession of all, or substantially all, of such Person 's
assets, (D) suffered the attachment or other judicial seizure of
all, or substantially all, of such Person 's assets, (E) admitted in
writing its inability to pay its debts as they come due, or (F) made
an offer of settlement, extension or composition to its creditors
generally.
(v) Such Person is not a "party in interest" within the
meaning of Section 3(14) of the ERISA, with respect to any investor
in or beneficiary of Lessor.
(b) Representations and Warranties of Lessor and Lessee. Each of
Lessor and Lessee shall represent and warrant to each purchaser of the
Property, whether Lessee, an Assignee Purchaser or a Designated Purchaser
(a "Purchaser"), on the Expiration Date of the Lease Agreement as follows:
(i) Such Person is a corporation duly organized, validly
existing and in good standing under the laws of its state of
incorporation.
(ii) The execution, delivery and performance by such Person
of each Purchase Document executed, or to be executed, by such
Person and the consummation of the transactions contemplated thereby
(A) are within the power of such Person and (B) have been duly
authorized by all necessary actions on the part of such Person.
(iii) Each Purchase Document executed, or to be executed, by
such Person has been, or will be, duly executed and delivered by
such Person and constitutes, or will constitute, a legal, valid and
binding obligation of such Person, enforceable against such Person
in accordance with its terms, except as limited by bankruptcy,
insolvency or other laws of general application relating to or
affecting the enforcement of creditors' rights generally and general
principles of equity.
(iv) Such Person has not (A) made a general assignment for
the benefit of creditors, (B) filed any voluntary petition in
bankruptcy or suffered the filing of
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any involuntary petition by such Person's creditors, (C) suffered
the appointment of a receiver to take possession of all, or
substantially all, of such Person's assets, (D) suffered the
attachment or other judicial seizure of all, or substantially all,
of such Person's assets, (E) admitted in writing its inability to
pay its debts as they come due, or (F) made an offer of settlement,
extension or composition to its creditors generally.
In addition to the foregoing, (A) Lessee shall represent and warrant to
the Designated Purchaser (or Lessor if Lessor is to retain the Property)
on the Expiration Date of the Lease Agreement that no Liens are attached
to the Property, except for Permitted Property Liens, and (B) Lessor shall
represent and warrant to Purchaser on the Expiration Date of the Lease
Agreement (or, in the case of a purchase of a portion of the Property
pursuant to the Partial Purchase Option, on the applicable Partial
Purchase Date) that no Lessor Liens are attached to the Property (or, in
the case of a purchase of a portion of the Property pursuant to the
Partial Purchase Option, the portion to be purchased). Except for the
foregoing representations and warranties to be made by Lessor on the
Expiration Date of the Lease Agreement (or, in the case of a purchase of a
portion of the Property pursuant to the Partial Purchase Option, on the
applicable Partial Purchase Date), no Lessor Party shall make any
representation or warranty regarding the Property or the sale of the
Property. Lessee shall make such additional representations and warranties
as it may be required to make pursuant to clause (ii) of Subparagraph
3.02(b).
(c) Survival of Representations and Warranties. The
representations and warranties of Purchaser, Lessor and Lessee shall
survive for a period of twelve (12) months after the Expiration Date of
the Lease Agreement (or, in the case of a purchase of a portion of the
Property pursuant to the Partial Purchase Option, after the applicable
Partial Purchase Date). Any claim which any such party may have at any
time against any other such party for a breach of any such representation
or warranty, whether known or unknown, which is not asserted by written
notice within such twelve (12) month period shall not be valid or
effective, and the party shall have no liability with respect thereto.
4.02. "As Is" Purchase. All purchases of the Property hereunder shall be
"as is, with all faults" and without any representations, warranties or
indemnities except for any representations, warranties or indemnities provided
by Lessee pursuant to clause (ii)(C) of Subparagraph 3.02(b) or by Lessor or
Lessee pursuant to Subparagraph 4.01(b). Each Purchaser shall specifically
acknowledge and agree that Lessor is selling and such Purchaser is purchasing
the Property on an "as is, with all faults" basis and that such Purchaser is not
relying on any representations or warranties of any kind whatsoever, express or
implied, from any Lessor Party, its agents, or brokers as to any matters
concerning the Property (except for any representations and warranties provided
by Lessor pursuant to Subparagraph 4.01(b)), including (a) the condition of the
Property (including any Improvements to the Property made prior to the
Commencement Date or during the Term of the Lease Agreement); (b) title to the
Property (including possession of the Property by any Person or the existence of
any Lien or any other right, title or interest in or to any of the Property in
favor of any Person); (c) the value, habitability, usability, design, operation
or fitness for use of the Property; (d) the availability or adequacy of
utilities and other services to the Property; (e) any latent, hidden or patent
defect in the Property; (f) the zoning or
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status of the Property or any other restrictions on the use of the Property; (g)
the economics of the Property; (h) any Casualty or Condemnation; or (i) the
compliance of the Property with any applicable Governmental Rule or Insurance
Requirement.
4.03. Release. Without limiting the foregoing, each Purchaser shall, on
behalf of itself and its successors and assigns, waive its right to recover
from, and forever release and discharge, Lessor and the other Indemnitees from
any and all demands, claims, legal or administrative proceedings, losses,
liabilities, damages, penalties, fines, liens, judgments, costs or expenses
whatsoever (including attorneys' fees and costs), whether direct or indirect,
known or unknown, foreseen or unforeseen, that may arise on account of or in any
way be connected with the physical condition of the Property or any Governmental
Rule applicable thereto, including any Environment Law. Each Purchaser shall
expressly waive the benefits of Section 1542 of the California Civil Code, which
provides that, "a general release does not extend to claims which the creditor
does not know or expect to exist in his favor at the time of executing the
release, which if known to him must have materially affected the settlement with
the debtor."
4.04. Permits, Approvals, Etc. Lessee shall obtain all permits, licenses
and approvals from and make all filings with Governmental Authorities and other
Persons, comply and cause compliance with all applicable Governmental Rules and
take all other actions required for the marketing, purchase and sale of the
Property.
4.05. Costs. Lessee shall pay directly, without deduction from the
purchase price or any other amount payable to Lessor hereunder, all costs and
expenses of Lessee and Lessor associated with the marketing and sale of the
Property, including brokers' fees and commissions; title insurance premiums;
survey charges; utility, tax and other prorations; fees and expenses of
environmental consultants and attorneys; appraisal costs; escrow fees; recording
fees; documentary, transfer and other taxes; and all other fees, costs and
expenses which might otherwise be deducted from the purchase price or any other
amount payable to the Lessor Parties hereunder.
4.06. Lessee's Expiration Date and Partial Purchase Date Payment
Obligations.
(a) Expiration Date. On the Expiration Date of the Lease
Agreement, Lessee shall pay to Lessor the following:
(i) Purchase by Lessee. If the Property is to be purchased
by Lessee or an Assignee Purchaser on such date, (i) the purchase
price payable by Lessee, (ii) all unpaid Rent accrued through or due
and payable on or prior to such date and (iii) all other amounts, if
any, due and payable by Lessee under the Operative Documents on or
prior to such date;
(ii) Purchase by a Designated Purchaser. If the Property is
to be purchased by a Designated Purchaser on such date, (i) the
Residual Value Guaranty Amount (subject to the provisos set forth at
the end of Subparagraph 3.02(g)), (ii) the Indemnity Amount (subject
to the provisos set forth at the end of Subparagraph 3.02(g)), (iii)
all unpaid Rent accrued through or due and payable
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on or prior to such date and (iv) all other amounts, if any, due and
payable by Lessee under the Operative Documents on or prior to such
date; or
(iii) Retention by Lessor. If the Property is to be retained
by Lessor on such date pursuant to Subparagraph 3.02(d), (i) the
Residual Value Guaranty Amount, (ii) the Indemnity Amount, (iii) all
unpaid Rent accrued through or due and payable on or prior to such
date and (iv) all other amounts, if any, due and payable by Lessee
under the Operative Documents on or prior to such date.
(b) Partial Purchase Date. On any Partial Purchase Date, Lessee
shall pay to Lessor (i) the purchase price for the Tracts of Property to
be purchased on such date, (ii) all unpaid Rent attributable to such
Tracts of Property accrued through or due and payable on or prior to such
date and (iii) all other amounts attributable to such Tracts of Property ,
if any, due and payable by Lessee under the Operative Documents on or
prior to such date.
4.07. Lessor Liens. Lessor shall remove all Lessor Liens from the Property
before the Expiration Date of the Lease Agreement (or, in the case of a purchase
of a portion of the Property pursuant to the Partial Purchase Option, from the
portion to be purchased before the applicable Partial Purchase Date).
4.08. Transfer Documents.
(a) Expiration Date.
(i) Lessor. Subject to receipt by Lessor on the Expiration
Date of the Lease Agreement of the full amount of the following,
without any setoff, deduction or reduction of any kind:
(A) In the case of a transfer to Lessee or an Assignee
Purchaser, all amounts payable by Lessee pursuant to clause
(i) of Subparagraph 4.06(a); or
(B) In the case of a transfer to a Designated
Purchaser, (1) the purchase price payable by the Designated
Purchaser and (2) all amounts payable by Lessee pursuant to
clause (ii) of Subparagraph 4.06(a);
Lessor shall transfer its interest in the Property to Purchaser on
the Expiration Date of the Lease Agreement (unless Lessor is to
retain the Property) by executing and delivering to Purchaser a Deed
in substantially the form of Exhibit D-1, an Acknowledgment of
Disclaimer of Representations and Warranties in substantially the
form of Exhibit D-2, a Bill of Sale in substantially the form of
Exhibit E and such other documents, instruments and agreements as
such Person may reasonably request.
(ii) Lessee. On the Expiration Date of the Lease Agreement,
unless Lessee is to purchase the Property, Lessee shall transfer its
interest in the Property to the Designated Purchaser or the Assignee
Purchaser (or Lessor if Lessor is to
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retain the Property pursuant to Paragraph 3.02(d)) by executing and
delivering to such Person a Deed in substantially the form of
Exhibit F, a Bill of Sale in substantially the form of Exhibit G and
such other documents, instruments and agreements as such Person may
reasonably request.
(b) Partial Purchase Date. Subject to receipt by Lessor on any
Partial Purchase Date of all amounts payable by Lessee pursuant to
Subparagraph 4.06(b), without any setoff, deduction or reduction of any
kind, Lessor shall transfer its interest in the Tracts of Property to be
purchased on such date to Lessee by executing and delivering to Lessee a
Deed in substantially the form of Exhibit D, a Bill of Sale in
substantially the form of Exhibit E and such other documents, instruments
and agreements as Lessee may reasonably request
4.09. Casualty and Condemnation Proceeds. If, on the Expiration Date of
the Lease Agreement, any Casualty and Condemnation Proceeds are held by Lessor
in a Repair and Restoration Account or otherwise, Lessor shall (a) if Lessee is
to purchase the Property on the Expiration Date of the Lease Agreement and
Lessee shall so direct, apply such proceeds to the purchase price to be paid by
Lessee or (b) in all other cases, release such proceeds to Lessee; provided,
however, that Lessor shall not have any obligation so to apply or release such
proceeds unless Lessee and/or any Designated Purchaser has complied with all of
the terms and conditions of this Agreement.
4.10. Payments. Purchaser and Lessee shall make all payments in lawful
money of the United States and in same day or immediately available funds not
later than 11:00 a.m. on the date due.
4.11. Environmental Reports. Lessee shall obtain and deliver to Lessor,
not later than twenty (20) days prior to the Expiration Date of the Lease
Agreement (or, in the case of a purchase of a portion of the Property pursuant
to the Partial Purchase Option, prior to the applicable Partial Purchase Date),
environmental reports with respect to the Property (or, in the case of a
purchase of a portion of the Property pursuant to the Partial Purchase Option,
with respect to the applicable portion thereof) prepared by environmental
consultants acceptable to Lessor.
4.12. Further Assurances. Lessee shall, and shall cause any Designated
Purchaser to, execute and deliver such documents, instruments and agreements and
take such other actions as Lessor may reasonably request to effect the purposes
of this Agreement and comply with the terms hereof. Similarly, Lessor shall
execute and deliver such documents, instruments and agreements and take such
other actions as Lessee or a Designated Purchaser may reasonably request to
effect the purposes of this Agreement and comply with the terms hereof.
SECTION 5. MISCELLANEOUS.
5.01. Notices. Except as otherwise specified herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Lessee or Lessor under this
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Agreement shall be given as provided in Subparagraph 2.02(c) and Paragraph 7.01
of the Participation Agreement.
5.02. Waivers, Amendments. Any term, covenant, agreement or condition of
this Agreement may be amended or waived only as provided in the Participation
Agreement. No failure or delay by any Lessor Party in exercising any right
hereunder shall operate as a waiver thereof or of any other right nor shall any
single or partial exercise of any such right preclude any other further exercise
thereof or of any other right. Unless otherwise specified in any such waiver or
consent, a waiver or consent given hereunder shall be effective only in the
specific instance and for the specific purpose for which given.
5.03. Successors and Assigns.
(a) General. This Agreement shall be binding upon and inure to the
benefit of the Lessor Parties and Lessee and their permitted successors
and assigns; provided, however, that the Lessor Parties and Lessee shall
not sell, assign or delegate their respective rights and obligations
hereunder except as provided in the Participation Agreement and in
Subparagraph 5.03(b).
(b) Assignment by Lessee of Purchase Rights. Lessee may assign to
a third party (an "Assignee Purchaser") its right to purchase the Property
pursuant to the Partial Purchase Option, the Term Purchase Option or the
Expiration Date Purchase Option; provided, however, that (i) such an
assignment shall not relieve Lessee of its obligations to consummate or
cause the consummation of any such purchase in accordance with the terms
of this Agreement and (ii) Lessee assumes all responsibility for
determining the creditworthiness of any such Assignee Purchaser. If, after
any purchase by an Assignee Purchaser hereunder, the purchase price paid
by such Assignee Purchaser is recovered from any Lessor Party, Lessee
shall reimburse such Lessor Party for such recovery unless such recovery
is due solely to a material misrepresentation or covenant breach by such
Lessor Party.
5.04. No Third Party Rights. Nothing expressed in or to be implied from
this Agreement is intended to give, or shall be construed to give, any Person,
other than the Lessor Parties and Lessee and their permitted successors and
assigns, any benefit or legal or equitable right, remedy or claim under or by
virtue of this Agreement or under or by virtue of any provision herein.
5.05. Partial Invalidity. If at any time any provision of this Agreement
is or becomes illegal, invalid or unenforceable in any respect under the law or
any jurisdiction, neither the legality, validity or enforceability of the
remaining provisions of this Agreement nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
5.06. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without reference to
conflicts of law rules.
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5.07. Counterparts. This Agreement may be executed in any number of
identical counterparts, any set of which signed by all the parties hereto shall
be deemed to constitute a complete, executed original for all purposes.
5.08. Nature of Lessee's Obligations.
(a) Independent Obligation. The obligation of Lessee to pay the
amounts payable by Lessee under this Agreement and the other Operative
Documents and to perform the other Lessee Obligation are absolute,
unconditional and irrevocable obligations which are separate and
independent of the obligations of the Lessor Parties under this Agreement
and the other Operative Documents and all other events and circumstances,
including the events and circumstances set forth in Subparagraph 5.08(c).
(b) No Termination or Abatement. This Agreement and the other
Operative Documents and Lessee's obligation to pay all amounts hereunder
and to pay and perform all other Lessee Obligations shall continue in full
force and effect without abatement notwithstanding the occurrence or
existence of any event or circumstance, including any event or
circumstance set forth in Subparagraph 5.08(c).
(c) Full Payment and Performance. Lessee shall make all payments
under this Agreement and the other Operative Documents in the full amounts
and at the times required by the terms of this Agreement and the other
Operative Documents without setoff, deduction or reduction of any kind and
shall perform all other Lessee Obligations as and when required, without
regard to any event or circumstances whatsoever, including (i) the
condition of the Property (including any Improvements to the Property made
prior to the Commencement Date or during the Term of the Lease Agreement);
(ii) title to the Property (including possession of the Property by any
Person or the existence of any Lien or any other right, title or interest
in or to any of the Property in favor of any Person); (iii) the value,
habitability, usability, design, operation or fitness for use of the
Property; (iv) the availability or adequacy of utilities and other
services to the Property; (v) any latent, hidden or patent defect in the
Property; (vi) the zoning or status of the Property or any other
restrictions on the use of the Property; (g) the economics of the
Property; (vii) any Casualty or Condemnation; (viii) the compliance of the
Property with any applicable Governmental Rule or Insurance Requirement;
(ix) any failure by any Lessor Party to perform any of its obligations
under this Agreement or any other Operative Document; or (x) the exercise
by any Lessor Party of any of its remedies under this Agreement or any
other Operative Document; provided, however, that (A) Lessee shall have no
obligation to purchase the Property on the Expiration Date if Lessor fails
to remove Lessor Liens or deliver the required deed and bill of sale or
other documents required to be delivered by Lessor hereunder and (B) this
Paragraph 5.08 shall not abrogate any right which Lessee may have to
recover damages from any Lessor Party for any material breach by such
Lessor Party of its obligations under this Agreement or any other
Operative Document to the extent permitted hereunder or thereunder.
[The signature page follows.]
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IN WITNESS WHEREOF, Lessee and Lessor have caused this Agreement to be
executed as of the day and year first above written.
LESSEE: KLA-TENCOR CORPORATION
By:___________________________
Name:______________________
Title:_____________________
LESSOR: LEASE PLAN U.S.A., INC.
By:___________________________
Name:______________________
Title:_____________________
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EXHIBIT A(1)
NOTICE OF TERM PURCHASE OPTION EXERCISE
[Date]
Lease Plan U.S.A., Inc.
c/o ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to the following:
(a) The Participation Agreement, dated as of November 12, 1997
(the "Participation Agreement"), among KLA-Tencor Corporation ("Lessee"),
Lease Plan U.S.A., Inc. ("Lessor"), the financial institutions listed in
Schedule I to the Participation Agreement (the "Participants") and ABN
AMRO Bank N.V., as agent for the Participants (in such capacity, "Agent");
(b) The Lease Agreement, dated as of November 12, 1997 (the "Lease
Agreement"), between Lessee and Lessor; and
(c) The Purchase Agreement, dated as of November 12, 1997 (the
"Purchase Agreement"), between Lessee and Lessor.
Unless otherwise indicated, all terms defined in the Participation Agreement
have the same respective meanings when used herein.
2. Pursuant to Subparagraph 4.01(a) of the Lease Agreement and
Paragraph 2.01 of the Purchase Agreement, Lessee hereby irrevocably notifies
Lessor that Lessee is exercising its right to terminate the Lease Agreement
prior to the Scheduled Expiration Date of the Lease Agreement and purchase the
Property on [_________, ____] (which date is a Business Day and which date,
after the delivery of this notice, shall be the Expiration Date of the Lease
Agreement).
IN WITNESS WHEREOF, Lessee has executed this Notice of Term Purchase
Option Exercise on the date set forth above.
KLA-TENCOR CORPORATION
By:___________________________
Name:______________________
Title:_____________________
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189
EXHIBIT A(2)
NOTICE OF PARTIAL PURCHASE OPTION EXERCISE
[Date]
Lease Plan U.S.A., Inc.
c/o ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to the following:
(a) The Participation Agreement, dated as of November 12, 1997
(the "Participation Agreement"), among KLA-Tencor Corporation ("Lessee"),
Lease Plan U.S.A., Inc. ("Lessor"), the financial institutions listed in
Schedule I to the Participation Agreement (the "Participants") and ABN
AMRO Bank N.V., as agent for the Participants (in such capacity, "Agent");
and
(b) The Purchase Agreement, dated as of November 12, 1997 (the
"Purchase Agreement"), between Lessee and Lessor.
Unless otherwise indicated, all terms defined in the Participation Agreement
have the same respective meanings when used herein.
2. Pursuant to Paragraph 2.02 of the Purchase Agreement, Lessee hereby
irrevocably notifies Lessor that Lessee is exercising its right to purchase a
portion of the Property as follows:
(a) The Tract[s] of Property to be purchased is [are]
________________; and
(b) The date on which such purchase is to occur is [_________,
____] (which date is a Business Day).
3. Lessee hereby certifies to Lessor, Agent and the Participants that,
on the date of this notice:
(a) The representations and warranties of Lessee set forth in
Paragraph 4.01 of the Participation Agreement and in the other Operative
Documents are true and correct in all material respects as if made on such
date (except for representations and warranties expressly made as of a
specified date, which shall be true as of such date);
(b) No Default has occurred and is continuing; and
(c) All of the Operative Documents are in full force and effect.
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IN WITNESS WHEREOF, Lessee has executed this Notice of Partial Purchase
Option Exercise on the date set forth above.
KLA-TENCOR CORPORATION
By:___________________________
Name:______________________
Title:_____________________
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191
EXHIBIT B
NOTICE OF MARKETING OPTION EXERCISE
[Date]
Lease Plan U.S.A., Inc.
c/o ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to the following:
(a) The Participation Agreement, dated as of November 12, 1997
(the "Participation Agreement"), among KLA-Tencor Corporation ("Lessee"),
Lease Plan U.S.A., Inc. ("Lessor"), the financial institutions listed in
Schedule I to the Participation Agreement (the "Participants") and ABN
AMRO Bank N.V., as agent for the Participants (in such capacity, "Agent");
and
(b) The Purchase Agreement, dated as of November 12, 1997 (the
"Purchase Agreement"), between Lessee and Lessor.
Unless otherwise indicated, all terms defined in the Participation Agreement
have the same respective meanings when used herein.
2. Pursuant to Paragraph 3.01 of the Purchase Agreement, Lessee hereby
notifies Lessor that Lessee is electing to exercise the Marketing Option on the
Scheduled Expiration Date of the Lease Agreement of [_____, ____].
3. Lessee hereby certifies to Lessor, Agent and the Participants that,
on the date of this notice:
(a) The representations and warranties of Lessee set forth in
Paragraph 4.01 of the Participation Agreement and in the other Operative
Documents are true and correct in all material respects as if made on such
date (except for representations and warranties expressly made as of a
specified date, which shall be true as of such date);
(b) No Default (other than a Non-Marketing Option Event of Default
under the Lease Agreement) has occurred and is continuing; and
(c) All of the Operative Documents are in full force and effect.
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IN WITNESS WHEREOF, Lessee has executed this Notice of Marketing Option
Exercise on the date set forth above.
KLA-TENCOR CORPORATION
By:___________________________
Name:______________________
Title:_____________________
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193
EXHIBIT C
NOTICE OF EXPIRATION DATE PURCHASE OPTION EXERCISE
[Date]
Lease Plan U.S.A., Inc.
ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to the following:
(a) The Participation Agreement, dated as of November 12, 1997
(the "Participation Agreement"), among KLA-Tencor Corporation ("Lessee"),
Lease Plan U.S.A., Inc. ("Lessor"), the financial institutions listed in
Schedule I to the Participation Agreement (the "Participants") and ABN
AMRO Bank N.V., as agent for the Participants (in such capacity, "Agent");
and
(b) The Purchase Agreement, dated as of November 12, 1997 (the
"Purchase Agreement"), between Lessee and Lessor.
Unless otherwise indicated, all terms defined in the Participation Agreement
have the same respective meanings when used herein.
2. Pursuant to Paragraph 3.01 of the Purchase Agreement, Lessee hereby
notifies Lessor that Lessee is electing to exercise the Expiration Date Purchase
Option on the Scheduled Expiration Date of the Lease Agreement of [_____, ____].
IN WITNESS WHEREOF, Lessee has executed this Notice of Expiration Date
Purchase Option Exercise on the date set forth above.
KLA-TENCOR CORPORATION
By:___________________________
Name:______________________
Title:_____________________
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EXHIBIT D(1)
RECORDING REQUESTED BY
WHEN RECORDED RETURN TO
AND MAIL TAX STATEMENTS TO:
[Purchaser]
- ------------------
- ------------------
- ------------------
Documentary Transfer Tax is not of public record and is shown on a separate
sheet attached to this deed.
- --------------------------------------------------------------------------------
QUITCLAIM DEED
FOR VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged,
LEASE PLAN U.S.A., INC., a Georgia corporation ("Grantor"), hereby releases,
remises and forever quitclaims to [PURCHASER], a _____________ ("Grantee"), the
real property located in the City of San Jose, County of Santa Clara, State of
California, described on EXHIBIT A attached hereto and made a part hereof (the
"Property").
Executed as of _____, 19__.
LEASE PLAN U.S.A., INC.,
a Georgia corporation
By: _________________________
Its: _________________________
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195
EXHIBIT A
LEGAL DESCRIPTION
Assessor's Parcel No.: _______________
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196
State of _____________
County of _____________________
On ___________________ before me, _________________________,
Date Name, Title of Officer
personally appeared ___________________________________________________________,
Name(s) of signer(s)
(personally known to me -OR- ( proved to me on the basis of satisfactory
evidence to be the person(s) whose
name(s) is/are subscribed to the within
instrument and acknowledged to me that
he/she/they executed the same in
his/her/their authorized capacity(ies),
and that by his/her/their signature(s)
on the instrument the person(s) or the
entity upon behalf of which the
person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
________________________________________
C-27
197
, 19__
Santa Clara County Recorder
Re: Request That Statement of Documentary Transfer Tax Not be Recorded
Dear Sir:
Request is hereby made in accordance with Section 11932 of the Revenue and
Taxation Code that this statement of tax due not be recorded with the attached
deed but be affixed to the deed after recordation and before return as directed
on the deed.
The attached deed names LEASE PLAN U.S.A., an Georgia corporation, as
grantor, and [PURCHASER], a _________________, as grantee.
The property being transferred and described in the attached deed is
located in the City of San Jose and County of Santa Clara, State of California.
The amount of Documentary Transfer Tax due on the attached deed is
$__________, computed on full value of the property conveyed.
LEASE PLAN U.S.A.,
a Georgia corporation
By: ___________________________
Its: ___________________________
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198
EXHIBIT D(2)
ACKNOWLEDGMENT AND DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
THIS ACKNOWLEDGMENT OF DISCLAIMER OF REPRESENTATIONS AND WARRANTIES (this
"Certificate") is made as of ___________, 1997 by [PURCHASER], a _____________
("Grantee").
Contemporaneously with execution of this Certificate, LEASE PLAN U.S.A.,
INC., a Georgia corporation ("Lease Plan U.S.A."), is executing and delivering
to Grantee a Quitclaim Deed and a Bill of Sale (the foregoing documents and any
other documents to be executed and delivered to Grantee 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 "Property") pursuant to the terms of a Purchase
Agreement dated as of November 12, 1997 by and between Lease Plan U.S.A. and
KLA-Tencor Corporation, a Delaware corporation("KLA-Tencor").
Notwithstanding any provision contained in the Conveyancing Documents to
the contrary, Grantee acknowledges that Lease Plan U.S.A. is selling and Grantee
is purchasing the Property on an "as is, with all faults" basis and that Grantee
is not relying on any representations or warranties of any kind whatsoever,
express or implied, from Lease Plan U.S.A., its agents, or brokers as to any
matters concerning the Property including (a) the condition of the Property
(including any improvements to the Property); (b) title to the Property
(including possession of the Property by any individual or entity or the
existence of any lien or any other right, title or interest in or to any of the
Property in favor of any person, but excluding any Lessor Liens as defined in
that certain Participation Agreement dated as of November 12, 1997 among KLA-
Tencor, Lease Plan U.S.A., the Participants and ABN AMRO Bank N.V., as agent for
the Participants (in such capacity, "Agent")); (c) the value, habitability,
usability, design, operation or fitness for use of the Property; (d) the
availability or adequacy of utilities and other services to the Property; (e)
any latent, hidden or patent defect in the Property; (f) the zoning or status of
the Property or any other restrictions on the use of the Property; (g) the
economics of the Property; (h) any damage to, destruction or, or decrease in the
value of all or any portion of the Property or any condemnation or other taking
or sale of all or any portion of the Property, by or on account of any actual or
threatened eminent domain proceeding or other taking of action by any
governmental authority or other person have the power of eminent domain; or (i)
the compliance of the Property with any applicable law, rule, regulation,
ordinance, order, code, judgment or similar form of decision of any governmental
authority or any terms, conditions or requirements imposed by any policies of
insurance relating to the Property.
[See next page]
C-29
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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 Lease Plan U.S.A. is entitled to rely and is relying on
this Certificate.
EXECUTED as of ____________, 1997.
[PURCHASER],
a _____________
___________________
___________________
C-30
200
EXHIBIT E
BILL OF SALE
FOR GOOD AND VALUABLE CONSIDERATION, the receipt of which is hereby
acknowledged, LEASE PLAN U.S.A., Inc., a Georgia corporation ("Seller") does
hereby sell, transfer and convey to [PURCHASER], a _________________________
("Purchaser"): 1) the Related Goods (as defined in that certain Participation
Agreement dated as of November 12, 1997 (the "Participation Agreement") among
KLA-Tencor Corporation ("KLA- Tencor"), Seller, the Participants and ABN AMRO
Bank N.V., as agent for the Participants (in such capacity, "Agent")) in
connection with that certain real property commonly known as _______________,
San Jose, California, including, without limitation, the personal property
itemized on SCHEDULE 1 attached hereto and incorporated herein by this reference
(the "Property"), and 2) all Appurtenant Rights, Related Permits and Related
Agreements as those terms are defined in the Participation Agreement.
Seller is selling and Purchaser is purchasing the Property on an "as is,
with all faults" basis and Purchaser is not relying on any representations or
warranties of any kind whatsoever, express or implied, from Seller, its agents,
or brokers as to any matters concerning the Property including (a) the condition
of the Property; (b) title to the Property (including possession of the Property
by any individual or entity or the existence of any lien or any other right,
title or interest in or to any of the Property in favor of any person but
excluding any Lessor Liens as defined in the Participation Agreement); (c) the
value, habitability, usability, design, operation or fitness for use of the
Property; or (d) any latent, hidden or patent defect in the Property.
Dated: ________, 19__ SELLER:
LEASE PLAN U.S.A., INC.
a Georgia corporation
By: ___________________________
Its: ___________________________
PURCHASER:
[PURCHASER]
a __________________________
By: ___________________________
Its: ___________________________
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SCHEDULE 1
PROPERTY
C-32
202
EXHIBIT F
RECORDING REQUESTED BY
WHEN RECORDED RETURN TO
AND MAIL TAX STATEMENTS TO:
_____________________
_____________________
Attention: _____________
Documentary Transfer Tax is not of public record and is shown on a separate
sheet attached to this deed.
- --------------------------------------------------------------------------------
QUITCLAIM DEED
FOR VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged,
KLA-TENCOR CORPORATION, a Delaware corporation ("Grantor"), hereby releases,
remises and forever quitclaims to [PURCHASER] ("Grantee"), the real property
located in the City of San Jose, County of Santa Clara, State of California,
described on EXHIBIT A attached hereto and made a part hereof (the "Property").
Executed as of __________, 19__.
KLA-TENCOR CORPORATION,
a Delaware corporation
By: ___________________________________
Its: ___________________________________
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EXHIBIT A
LEGAL DESCRIPTION
Assessor's Parcel No.: ____________________
C-34
204
State of _________________
County of _____________________
On ___________________ before me, _________________________,
Date Name, Title of Officer
personally appeared ___________________________________________________________,
Name(s) of signer(s)
(personally known to me -OR- ( proved to me on the basis of satisfactory
evidence to be the person(s) whose
name(s) is/are subscribed to the within
instrument and acknowledged to me that
he/she/they executed the same in
his/her/their authorized capacity(ies),
and that by his/her/their signature(s)
on the instrument the person(s) or the
entity upon behalf of which the
person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
________________________________________
C-35
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_________ , 1997
Santa Clara County Recorder
Re: Request That Statement of Documentary
Transfer Tax Not be Recorded
Dear Sir:
Request is hereby made in accordance with Section 11932 of the Revenue and
Taxation Code that this statement of tax due not be recorded with the attached
deed but be affixed to the deed after recordation and before return as directed
on the deed.
The attached deed names KLA-TENCOR CORPORATION, a Delaware corporation, as
grantor, and [PURCHASER], as grantee.
The property being transferred and described in the attached deed is
located in the City of San Jose and County of Santa Clara, State of California.
The amount of Documentary Transfer Tax due on the attached deed is
$__________, computed on full value of the property conveyed.
KLA-TENCOR CORPORATION,
a Delaware corporation
By: __________________________
Its: __________________________
C-36
206
EXHIBIT G
BILL OF SALE
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, KLA-Tencor Corporation, a Delaware corporation
("Seller"), does hereby sell, transfer, and convey unto [PURCHASER] ("Buyer"):
1) without warranty, the Related Goods (as defined in that certain Participation
Agreement dated as of November 12, 1997 (the "Participation Agreement") among
Lease Plan U.S.A., Inc., Seller, the Participants and ABN AMRO Bank N.V., as
agent for the Participants (in such capacity, "Agent")) in connection with that
certain real property commonly known as _______________, San Jose, California,
including, without limitation, the personal property itemized on SCHEDULE 1
attached hereto and incorporated herein by this reference (the "Property"), and
2) all Appurtenant Rights, Related Permits and Related Agreements as those terms
are defined in the Participation Agreement.
DATED this ____ day of __________, 19__.
SELLER: KLA-Tencor Corporation,
a Delaware corporation
By: _____________________________________
Its: ____________________________________
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SCHEDULE 1
PROPERTY
C-38
208
EXECUTION COPY
================================================================================
PURCHASE AGREEMENT
BETWEEN
KLA-TENCOR CORPORATION
AND
LEASE PLAN U.S.A., INC.
NOVEMBER 12, 1997
================================================================================
C-39
209
SECTION 1. INTERPRETATION.................................................................................2
1.01. Definitions....................................................................................2
1.02. Rules of Construction..........................................................................2
SECTION 2. OPTIONAL PURCHASE BY LESSEE DURING THE TERM....................................................2
2.01. Term Purchase Option...........................................................................2
2.02. Partial Purchase Option........................................................................3
SECTION 3. OBLIGATIONS OF LESSEE ON THE EXPIRATION DATE...................................................4
3.01. Alternative....................................................................................4
3.02. Marketing Option...............................................................................4
3.03. Expiration Date Purchase Option...............................................................10
SECTION 4. TERMS OF ALL PURCHASES........................................................................10
4.01. Representations and Warranties of Parties.....................................................10
4.02. As Is Purchase................................................................................12
4.03. Release.......................................................................................13
4.04. Permits, Approvals, Etc.......................................................................13
4.05. Costs.........................................................................................13
4.06. Lessee's Expiration Date and Partial Purchase Date Payment Obligations........................13
4.07. Lessor Liens..................................................................................14
4.08. Transfer Documents............................................................................14
4.09. Casualty and Condemnation Proceeds............................................................15
4.10. Payments......................................................................................15
4.11. Environmental Reports.........................................................................15
4.12. Further Assurances............................................................................15
SECTION 5. MISCELLANEOUS.................................................................................15
5.01. Notices.......................................................................................16
5.02. Waivers, Amendments...........................................................................16
5.03. Successors and Assigns........................................................................16
5.04. No Third Party Rights.........................................................................16
5.05. Partial Invalidity............................................................................16
5.06. Governing Law.................................................................................16
5.07. Counterparts..................................................................................17
5.08. Nature of Lessee's Obligations................................................................17
C-40
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EXHIBITS
A(1) Notice of Term Purchase Option Exercise (2.02)
A(2) Notice of Partial Purchase Option Exercise (2.02)
B Notice of Marketing Option Exercise (3.01)
C Notice of Expiration Date Purchase Option Exercise (2.02)
D(1) Deed (Lessor) (4.08(a))
D(2) Acknowledgment of Disclaimer of Representations and Warranties (4.08(a))
E Bill of Sale (Lessor) (4.08(a))
F Deed (Lessee) ((4.08(b))
G Bill of Sale (Lessee) 4.08(b))
C-41
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EXHIBIT D
CONSTRUCTION AGENCY AGREEMENT
THIS CONSTRUCTION AGENCY AGREEMENT (this "Agreement" herein), dated as of
November 12, 1997 is entered into by and between:
(1) KLA-TENCOR CORPORATION, a Delaware corporation ("Lessee"); and
(2) LEASE PLAN U.S.A., INC., a Georgia corporation ("Lessor").
RECITALS
A. Lessee has requested Lessor and the financial institutions which are
"Participants" under the Participation Agreement referred to in Recital B below
(such financial institutions to be referred to collectively as the
"Participants") to provide to Lessee a certain lease facility. Pursuant to such
facility:
(1) Lessor would (a) acquire certain property designated by Lessee
(either through purchase or lease), (b) lease to Lessee such property and
certain other property currently held by Lessor, (c) appoint Lessee as
Lessor's agent to make certain improvements to a portion of such property,
(d) make advances to finance such improvements and to pay certain related
expenses, and (e) grant to Lessee the right to purchase such property; and
(2) The Participants would participate in such lease facility by
(a) funding the purchase prices and other advances to be made by Lessor
and (b) acquiring participation interests in the rental and certain other
payments to be made by Lessee.
B. Pursuant to a Participation Agreement dated of even date herewith
(the "Participation Agreement") among Lessee, Lessor, the Participants and ABN
AMRO Bank N.V., as agent for the Participants (in such capacity, "Agent"),
Lessor and the Participants have agreed to provide such lease facility upon the
terms and subject to the conditions set forth therein, including without
limitation the execution and delivery of this Agreement setting forth the terms
of Lessee's construction obligations.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
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SECTION 1. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this Agreement or any
other Operative Document, each term set forth in Schedule 1.01 to the
Participation Agreement, when used in this Agreement or any other Operative
Document, shall have the respective meaning given to that term in such Schedule
1.01 or in the provision of this Agreement or other document, instrument or
agreement referenced in such Schedule 1.01.
1.02. Rules of Construction. Unless otherwise indicated in this Agreement
or any other Operative Document, the rules of construction set forth in Schedule
1.02 to the Participation Agreement shall apply to this Agreement and the other
Operative Documents.
SECTION 2. APPOINTMENT; AUTHORITY.
2.01. Appointment. Lessor hereby appoints Lessee and Lessee hereby agrees
to act as Lessor's agent for the construction of the New Improvements to the
Tract 1 Property, the Tract 3 Property, the Tract 4 Property and the Tract 5
Property.
2.02. Scope of Authority. Lessee shall have the authority to perform all
acts expressly delegated to or undertaken by Lessee under this Agreement and all
other acts reasonably necessary to complete the construction of the New
Improvements in accordance with the Plans and Specifications, this Agreement,
the other Operative Documents, all applicable Governmental Rules and all
applicable Insurance Requirements; provided, however, that no Lessor Party shall
have any obligation to pay any fees, costs or expenses related to such
construction (except to the extent of Lessor's obligation to make, and the
Participants' obligations to fund, Advances pursuant to the Participation
Agreement) and Lessee shall have no authority to, and shall not, enter into any
agreement which would, directly or indirectly, require any Lessor Party to pay
any such fees, costs or expenses or otherwise impose upon any Lessor Party any
liability or obligation. Subject to the terms and conditions of this Agreement
and the other Operative Documents, Lessee shall have sole management and control
over the construction means, methods, sequences and procedures with respect to
the construction of the New Improvements.
2.03. Delegation of Duties. Lessee may employ such architects, engineers,
contractors, consultants, agents, employees and other Persons as Lessee
determines are necessary or appropriate to construct the New Improvements and
perform its other obligations and duties hereunder and may delegate to such
Persons any or all of such obligations and duties; provided, however, that no
such employment or delegation shall limit or reduce in any way Lessee's
obligations and duties under this Agreement.
SECTION 3. LESSEE'S OBLIGATIONS AND DUTIES.
3.01. Plans and Specifications. Lessee shall deliver to Lessor, for
approval by Lessor and Agent, the Plans and Specifications for all new
improvements it elects to make to each Tract of Property. Once any Plans and
Specifications for any Tract of Property are so delivered and
D-2
213
approved by Lessor and Agent, Lessee shall not agree to or permit any revision,
amendment, supplementation or other modification to such Plans and
Specifications without the written consent of Lessor if such revision,
amendment, supplementation or modification (either alone or together with all
prior revisions, amendments, supplementations and modifications to all Plans and
Specifications for all of the Tracts of Property) is reasonably likely to:
(a) Cause the Acquisition Prices plus all other costs and expenses
of acquiring all of the Tracts of Property and constructing all of the New
Improvements to all the Tracts of Property in accordance with this
Agreement (including all Permitted Improvement Costs and Permitted
Transaction Expenses paid or to be paid with Advances) to exceed the
lesser of (i) the Total Commitment and (ii) the sum of the most recent
Expiration Date Appraisals for all of the Tracts of Property (or, in the
case of any Tract of Property for which Lessee does not deliver an
Expiration Date Appraisal, the Closing Date Appraisal therefor);
(b) Make it difficult or impossible to Complete the construction
of all the New Improvements to such Tract of Property in accordance with
this Agreement on or prior to the Outside Completion Date; or
(c) Cause the Fair Market Value of such Tract of Property to be
less than the most recent Expiration Date Appraisal for such Tract of
Property (or, in the case of any Tract of Property for which Lessee does
not deliver an Expiration Date Appraisal, the Closing Date Appraisal
therefor) or otherwise decrease in any material amount.
Lessee shall notify Lessor promptly in writing of any revision, amendment,
supplementation or other modification to the Plans and Specifications.
3.02. Construction Agreements. Lessee has entered or shall, on a timely
basis, enter into such agreements with architects, engineers, contractors,
consultants, materialmen, suppliers, agents, employees and other Persons as are
necessary or appropriate to construct the New Improvements and perform Lessee's
other obligations and duties hereunder in connection therewith (together with
the Plans and Specifications, the "Construction Agreements"). Each Construction
Agreement shall expressly permit the assignment of Lessee's rights thereunder to
Lessor without the consent of the other party(ies) to such agreement. Upon
Lessor's request, Lessee shall deliver to Lessor copies of any or all
Construction Agreements.
3.03. Permits, Approvals, Etc. Prior to the time they are required, Lessee
shall obtain from Governmental Authorities and other Persons all licenses,
approvals, authorizations, consents, permits, easements and rights-of-way that
are necessary for the construction of any New Improvements in accordance with
this Agreement. Upon Lessor's request, Lessee shall deliver to Lessor copies of
any or all such licenses, approvals, authorizations, consents, permits,
easements and rights-of-way.
3.04. Material and Supplies. Lessee shall obtain all materials and
supplies necessary to construct the New Improvements. Lessee shall cause all
such materials and supplies (a) to be purchased in a manner that will result in
the ownership thereof vesting unconditionally in Lessor,
D-3
214
free from all Liens (other than Liens that attach in favor of the materialmen or
subcontractors that supply and/or install such materials and supplies); (b) to
be stored at the applicable Tract of Land under adequate safeguards to minimize
the possibility of loss, theft, damage or commingling with other materials or
projects; and (c) to be covered by the insurance policies required under this
Agreement and the other Operative Documents. Upon Lessor's request, Lessee shall
deliver to Lessor copies of any contracts, bills of sale, statements, receipts,
vouchers or agreements for the materials and supplies used or to be used in the
construction of the New Improvements.
3.05 Construction.
(a) Manner. Lessee shall construct the New Improvements (including
all foundations and structural portions thereof; all plumbing, heating,
air conditioning and electrical systems; and all water, sewer, electric,
gas, telephone and drainage facilities) in a good and workmanlike manner,
free from any material defect in design or construction, in accordance
with the Plans and Specifications, this Agreement, the other Operative
Documents, all applicable Governmental Rules and all applicable Insurance
Requirements.
(b) Completion. Lessee shall Complete the construction of the New
Improvements to all Tracts of Property on which New Improvements are to be
constructed on or prior to the Outside Completion Date. "Completion" shall
occur for the New Improvements to a Tract of Property when each of the
following conditions has been satisfied:
(i) The New Improvements to such Tract of Property have been
completed in accordance with this Agreement, are in first class
working condition and are ready for occupancy and use as a facility
as described in clause (ii) under the heading for the applicable
Tract of Property in Schedule 4.01(s) to the Participation
Agreement. This shall include, without limiting the generality of
the preceding sentence, evidence that (A) all utilities required to
adequately service such New Improvements for their intended use are
available and "tapped on" and hooked up pursuant to adequate permits
(including any that may be required under applicable Environmental
Laws) and (B) access to such New Improvements for pedestrians and
motor vehicles from publicly dedicated streets and public highways
are available.
(ii) Lessee shall have furnished to Lessor each of the
following:
(A) A certificate of Lessee in the form of Exhibit A,
duly executed by Lessee;
(B) A certificate of an architect acceptable to Lessor
in the form of Exhibit B, duly executed by such architect,
together with copies of each of the documents referred to
therein;
D-4
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(C) A date-down endorsement to or reissued title
insurance policies or binders delivered by Lessee pursuant to
Paragraph 3.02 and Schedule 3.02 of the Participation
Agreement;
(D) Copies of all mechanic's or materialman's lien
waivers and releases as required by Lessor; and
(E) Certificate of final occupancy issued by the
appropriate Governmental Authority.
3.06. Insurance. Lessee (and its general contractor) shall maintain
policies of casualty and liability insurance as provided in Paragraph 3.03 of
the Lease Agreement.
3.07. Fees, Costs and Expenses.
(a) Lessee's Responsibility. Except to the extent such fees, costs
and expense are paid by Advances, Lessee shall pay all fees, costs and
expenses of constructing the New Improvements from its own funds.
(b) Prompt Payment. Lessee shall pay promptly all fees, costs and
expenses of architects, engineers, contractors, materialmen, suppliers,
consultants, agents, employees and other Persons which provide services,
materials or supplies in connection with the construction of the New
Improvements and all other fees, costs and expenses related to such
construction.
(c) No Lessee Fee. Lessee shall not be entitled to any fee for the
performance of its obligations and duties hereunder or any other
compensation in connection with this Agreement.
3.08. Books and Records. Lessee shall maintain accurate books and records,
in reasonable detail, relating to the construction of the New Improvements and
shall permit Lessor to inspect the same and make copies thereof, at Lessee's
expense, upon reasonable notice to Lessee.
3.09. Additional Obligations and Duties. In addition to the obligations
and duties set forth above in this Section 3, Lessee shall perform all other
acts reasonably necessary to achieve Completion of the construction of the New
Improvements in accordance with the Plans and Specifications, this Agreement,
the other Operative Documents, all applicable Governmental Rules and all
applicable Insurance Requirements.
SECTION 4. MISCELLANEOUS.
4.01. Notices. Except as otherwise specified herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Lessee or Lessor under this
D-5
216
Agreement shall be given as provided in Subparagraph 2.02(c) and Paragraph 7.01
of the Participation Agreement.
4.02. Waivers; Amendments. Any term, covenant, agreement or condition of
this Agreement may be amended or waived only as provided in the Participation
Agreement. No failure or delay by any Lessor Party in exercising any right
hereunder shall operate as a waiver thereof or of any other right nor shall any
single or partial exercise of any such right preclude any other further exercise
thereof or of any other right. Unless otherwise specified in any such waiver or
consent, a waiver or consent given hereunder shall be effective only in the
specific instance and for the specific purpose for which given.
4.03. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Lessor Parties and Lessee and their permitted
successors and assigns; provided, however, that the Lessor Parties and Lessee
shall not sell, assign or delegate their respective rights and obligations
hereunder except as provided in the Participation Agreement.
4.04. No Third Party Rights. Nothing expressed in or to be implied from
this Agreement is intended to give, or shall be construed to give, any Person,
other than the Lessor Parties and Lessee and their permitted successors and
assigns, any benefit or legal or equitable right, remedy or claim under or by
virtue of this Agreement or under or by virtue of any provision herein.
4.05. Partial Invalidity. If at any time any provision of this Agreement
is or becomes illegal, invalid or unenforceable in any respect under the law or
any jurisdiction, neither the legality, validity or enforceability of the
remaining provisions of this Agreement nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
4.06. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without reference to
conflicts of law rules.
4.07. Counterparts. This Agreement may be executed in any number of
identical counterparts, any set of which signed by all the parties hereto shall
be deemed to constitute a complete, executed original for all purposes.
4.08. Nature of Lessee's Obligations.
(a) Independent Obligation. The obligation of Lessee to construct
the New Improvements pursuant to this Agreement and the other Operative
Documents and to perform the other Lessee Obligations are absolute,
unconditional and irrevocable obligations which are separate and
independent of the obligations of the Lessor Parties under this Agreement
and the other Operative Documents and all other events and circumstances,
including the events and circumstances set forth in Subparagraph 4.08(c).
(b) No Termination or Abatement. This Agreement and the other
Operative Documents and Lessee's obligation to construct the New
Improvements and to pay and
D-6
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perform all other Lessee Obligations shall continue in full force and
effect without abatement notwithstanding the occurrence or existence of
any event or circumstance, including any event or circumstance set forth
in Subparagraph 4.08(c).
(c) Full Payment and Performance. Lessee shall perform all of its
obligations under this Agreement and the other Operative Documents in the
manner and at the times required by the terms of this Agreement and the
other Operative Documents without setoff, deduction or reduction of any
kind and shall perform all other Lessee Obligations as and when required,
without regard to any event or circumstances whatsoever, including (i) the
condition of the Property (including any Improvements to the Property made
prior to the Commencement Date or during the Term); (ii) title to the
Property (including possession of the Property by any Person or the
existence of any Lien or any other right, title or interest in or to any
of the Property in favor of any Person); (iii) the value, habitability,
useability, design, operation or fitness for use of the Property; (iv) the
availability or adequacy of utilities and other services to the Property;
(v) any latent, hidden or patent defect in the Property; (vi) the zoning
or status of the Property or any other restrictions on the use of the
Property; (g) the economics of the Property; (vii) any Casualty or
Condemnation; (viii) the compliance of the Property with any applicable
Governmental Rule or Insurance Requirement; (ix) any failure by any Lessor
Party to perform any of its obligations under this Agreement or any other
Operative Document; or (x) the exercise by any Lessor Party of any of its
remedies under this Agreement or any other Operative Document; provided,
however, that (A) Lessor shall have no obligation to continue constructing
the New Improvements at any time the Lessor Parties are refusing to make
any Advance in violation of the Participation Agreement and (B) this
Paragraph 4.08 shall not abrogate any right which Lessee may have to
recover damages from any Lessor Party for any material breach by such
Lessor Party of its obligations under this Agreement or any other
Operative Document to the extent permitted hereunder or thereunder.
[The signature page follows.]
D-7
218
IN WITNESS WHEREOF, Lessee and Lessor have caused this Agreement to be
executed as of the day and year first above written.
LESSEE: KLA-TENCOR CORPORATION
By: _____________________________________
Name: _______________________________
Title: ______________________________
LESSOR: LEASE PLAN U.S.A., INC.
By: _____________________________________
Name: _______________________________
Title: ______________________________
D-8
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EXHIBIT A
LESSEE'S COMPLETION CERTIFICATE
________________, 1997
Lease Plan U.S.A., Inc.
c/o ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to the following:
(a) The Participation Agreement, dated as of November 12, 1997
(the "Participation Agreement"), among KLA-Tencor Corporation ("Lessee"),
Lease Plan U.S.A., Inc. ("Lessor"), the financial institutions listed in
Schedule I to the Participation Agreement (the "Participants") and ABN
AMRO Bank N.V., as agent for the Participants (in such capacity, "Agent");
and
(b) The Construction Agency Agreement, dated as of November 12,
1997 (the "Construction Agency Agreement"), between Lessee and Lessor.
Unless otherwise indicated, all terms defined in the Participation Agreement
have the same respective meanings when used herein.
2. Lessee hereby certifies to Lessor, for the benefit of all of the
Lessor Parties, as follows:
(a) Lessee has completed all of the New Improvements to the Tract
[__] Property in accordance with the Plans and Specifications, the
Construction Agency Agreement, the other Operative Documents, all
applicable Governmental Rules and all applicable Insurance Requirements
and the New Improvements now are ready for use and occupancy as a facility
described in clause (ii) under the heading "Tract [__] Property" in
Schedule 4.01(s) to the Participation Agreement.
(b) All amounts payable to third parties for the construction of
such New Improvements have been paid in full (other than amounts which
Lessee is contesting in accordance with the Lease Agreement).
(c) No changes or modifications that have had an adverse effect on
the value, use or useful life of the Tract [__] Property were made to the
Plans and Specifications for the New Improvements to such Property after
the date the Plans and Specifications for such Property were approved by
Lessor, Agent and the Participants pursuant to Subparagraph 2.01(c) of the
Participation Agreement.
D-9
220
(d) The representations and warranties relating to the Tract [__]
Property set forth in Subparagraph 4.01(s) of the Participation Agreement
and Schedule 4.01(s) to the Participation Agreement and the other
representations and warranties of Lessee set forth in the Operative
Documents are true and correct in all material respects on the date hereof
(except for representations and warranties expressly made as of a
specified date, which shall be true as of such date).
(e) No Default has occurred and is continuing.
(f) All of the Operative Documents are in full force and effect.
IN WITNESS WHEREOF, Lessee has executed this Lessee's Completion
Certificate on the date set forth above.
KLA-TENCOR CORPORATION
By: _____________________________________
Name: _______________________________
Title: ______________________________
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221
EXHIBIT B
ARCHITECT'S COMPLETION CERTIFICATE
________________, 1997
Lease Plan U.S.A., Inc.
c/o ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to the following:
(a) The [____________] Agreement, dated as of [____] (the
"Architect's Agreement"), between KLA-Tencor Corporation ("Lessee") and
[__________] ("Architect"); and
(b) The plans and specifications dated as of [_______] prepared by
Architect for certain improvements to the property located at
[_______________] (the "Plans and Specifications").
2. The undersigned hereby certifies to you as follows:
(a) The improvements contemplated by the Plans and Specifications
(the "Improvements") have been completed substantially in accordance with
such Plans and Specifications, a final certificate of occupancy has been
issued by the appropriate governmental agency, and the Improvements are
ready for use and occupancy.
(b) To the best of [my][our] knowledge, the Improvements as so
completed comply with all applicable laws, rule, regulations and
ordinances pertaining to the construction and occupancy thereof, including
applicable building and zoning laws, rule, regulations and ordinances, and
the Americans with Disabilities Act of 1990, 42 U.S.C. Section 1210 et
seq.
(c) No changes or modifications were made to the Plans and
Specifications after the date thereof that have had an adverse effect on
the value, use or useful life of the Property.
(d) Attached hereto are true and complete copies of an "as built"
or "record" set of the plans and specifications for the Improvements, and
an ALTA survey of the property "as built" showing all paving, driveways,
fences and exterior improvements.
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IN WITNESS WHEREOF, the undersigned has executed this Architect's
Completion Certificate on the date set forth above.
[Name of Architectural Firm]
By: _____________________________________
Name: _______________________________
Title: ______________________________
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223
EXECUTION COPY
================================================================================
CONSTRUCTION AGENCY AGREEMENT
BETWEEN
KLA-TENCOR CORPORATION
AND
LEASE PLAN U.S.A., INC.
NOVEMBER 12, 1997
================================================================================
D-13
224
SECTION 1. INTERPRETATION.................................................................................2
1.01. Definitions....................................................................................2
1.02. Rules of Construction..........................................................................2
SECTION 2. APPOINTMENT; AUTHORITY.........................................................................2
2.01. Appointment....................................................................................2
2.02. Scope of Authority.............................................................................2
2.03. Delegation of Duties...........................................................................2
SECTION 3. LESSEE'S OBLIGATIONS AND DUTIES................................................................2
3.01. Plans and Specifications.......................................................................2
3.02. Construction Agreements........................................................................3
3.03. Permits, Approvals, Etc........................................................................3
3.04. Material and Supplies..........................................................................3
3.05 Construction...................................................................................4
3.06. Insurance......................................................................................5
3.07. Fees, Costs and Expenses.......................................................................5
3.08. Books and Records..............................................................................5
3.09. Additional Obligations and Duties..............................................................5
SECTION 4. MISCELLANEOUS..................................................................................5
4.01. Notices........................................................................................5
4.02. Waivers; Amendments............................................................................6
4.03. Successors and Assigns.........................................................................6
4.04. No Third Party Rights..........................................................................6
4.05. Partial Invalidity.............................................................................6
4.06. Governing Law..................................................................................6
4.07. Counterparts...................................................................................6
4.08. Nature of Lessee's Obligations.................................................................6
D-14
225
EXHIBITS
- --------
A Lessee's Completion Certificate (3.05(c))
B Architect's Completion Certificate (3.05(c)
D-15
226
EXHIBIT E
ACQUISITION REQUEST
[Date]
Lease Plan U.S.A., Inc.
c/o ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to that certain Participation Agreement, dated as
of November 12, 1997 (the "Participation Agreement"), among KLA-Tencor
Corporation ("Lessee"), Lease Plan U.S.A., Inc. ("Lessor"), the financial
institutions listed in Schedule I to the Participation Agreement (the
"Participants") and ABN AMRO Bank N.V., as agent for the Participants (in such
capacity, "Agent"). Unless otherwise indicated, all terms defined in the
Participation Agreement have the same respective meanings when used herein.
[Insert the following for the Initial Acquisition Advances]
[2. Pursuant to Subparagraph 2.03(a) of the Participation Agreement,
Lessee hereby irrevocably requests Lessor to make the Initial Acquisition
Advances as follows:
(a) The Initial Acquisition Advances shall consist of the
following:
(i) An Acquisition Advance in the amount of $____________
which shall be used to pay (A) $___________ on account of the Phase
IIA Termination Payment and (B) $___________ on account of Permitted
Transaction Expenses related or allocable to the Tract 1 Property;
(ii) An Acquisition Advance in the amount of $____________
which shall be used to pay (A) $___________ on account of the
purchase price for the Tract 2 Land and the Improvements and
Appurtenant Rights thereto [and the Related Goods described under
the heading "Tract 2 Related Goods" in Attachment 1 hereto]; and (B)
$___________ on account of Permitted Transaction Expenses related or
allocable to the Tract 2 Property;
(iii) An Acquisition Advance in the amount of $____________
which shall be used to pay (A) $___________ on account of the
purchase price for the Existing Improvements to the Tract 3 Land
[and the Related Goods described under the heading "Tract 3 Related
Goods" in Attachment 1 hereto]; and (B) $___________ on account of
Permitted Transaction Expenses related or allocable to the Tract 3
Property; and
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227
(iv) An Acquisition Advance in the amount of $____________
which shall be used to pay (A) $___________ on account of the Phase
IIB Termination Payment and (B) $___________ on account of Permitted
Transaction Expenses related or allocable to the Tract 5 Property;
(b) The Initial Acquisition Advances shall be made on ___________,
1997 (the "Closing Date"); and
(c) [Insert one of the following as appropriate]
[The Initial Acquisition Advances shall consist of the
following Portion[s] [with the following initial Rental Period[s]]:
Portion Rental Period
------- -------------
$___________ _______ month[s]
$___________ _______ month[s]
$___________ _______ month[s]
$___________ _______ month[s]]
[The Initial Acquisition Advances shall consist of a single
Portion with an initial Rental Period that ends on [December 1, 1997].]]
[Insert the following for the Tract 4 Acquisition Advance]
[2. Pursuant to Subparagraph 2.03(a) of the Participation Agreement,
Lessee hereby irrevocably requests Lessor to make the Tract 4 Acquisition
Advance as follows:
(a) The Tract 4 Acquisition Advance shall be in the amount of
$____________ which shall be used to pay (A) $___________ on account of
the purchase price for the Tract 4 Land and the Improvements and
Appurtenant Rights thereto [and the Related Goods described under the
heading "Tract 4 Related Goods" in Attachment 1 hereto];and (B)
$___________ on account of Permitted Transaction Expenses related or
allocable to the Tract 4 Property;
(b) The Tract 4 Acquisition Advance shall be made on ___________,
1997; and
(c) [Insert one of the following as appropriate]
[The Tract 4 Acquisition Advance shall consist of the
following Portion[s] [with the following initial Rental Period[s]]:
Portion Rental Period
------- -------------
$___________ _______ month[s]
$___________ _______ month[s]
$___________ _______ month[s]
$___________ _______ month[s]]
E-2
228
[The Tract 4 Acquisition Advance shall consist of a single
Portion with an initial Rental Period that ends on [_________ 1, 199_].]]
3. Lessee hereby certifies to the Lessor Parties that, on the date of
this Acquisition Request and after giving effect to the use of the requested
Acquisition Advance[s] as described above:
(a) The representations and warranties of Lessee set forth in
Paragraph 4.01 of the Participation Agreement and in the other Operative
Documents are true and correct in all material respects as if made on such
date (except for representations and warranties expressly made as of a
specified date, which shall be true as of such date);
(b) No Default has occurred and is continuing;
(c) All of the Operative Documents are in full force and effect;
(d) No action, suit or other proceeding affecting the title to, or
the use, operation or value of, the applicable Property (including any
proceeding for Condemnation or under any Environmental Law) is pending or,
to the best of Lessee's knowledge, threatened; and
(e) No Casualty affecting the applicable Property has occurred.
4. Please disburse the proceeds of the Acquisition Advance to
IN WITNESS WHEREOF, Lessee has executed this Acquisition Request on the
date set forth above.
KLA-TENCOR CORPORATION
By: _____________________________
Name: _______________________
Title: ______________________
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229
EXHIBIT F
IMPROVEMENT/EXPENSE ADVANCE REQUEST
[Date]
Lease Plan U.S.A., Inc.
c/o ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to that certain Participation Agreement, dated as
of November 12, 1997 (the "Participation Agreement"), among KLA-Tencor
Corporation ("Lessee"), Lease Plan U.S.A., Inc. ("Lessor"), the financial
institutions listed in Schedule I to the Participation Agreement (the
"Participants") and ABN AMRO Bank N.V., as agent for the Participants (in such
capacity, "Agent"). Unless otherwise indicated, all terms defined in the
Participation Agreement have the same respective meanings when used herein.
2. Pursuant to Subparagraph 2.03(b) of the Participation Agreement,
Lessee hereby irrevocably requests Lessor to make Improvement/Expense Advances
as follows:
(a) [Insert one of the following as appropriate]
[Such Improvement/Expense Advances shall be in the aggregate
amount of $________ and shall consist of (1) an Improvement/Expense
Advance in the amount of $________ related or allocable to the Tract __
Property, (2) an Improvement/Expense Advance in the amount of $________
related or allocable to the Tract __ Property and (3) an
Improvement/Expense Advance in the amount of $________ related or
allocable to the Tract __ Property;]
[Such Improvement/Expense Advance shall be in the amount of
$________ and is related or allocable to the Tract __ Property;] and
(b) The date of such Improvement/Expense Advance[s] shall be
____________, ____ (the "Advance Date").
3. [Lessee will use $________ of the proceeds of the requested
Improvement/Expense Advance to pay the costs for the Related Goods described in
the Supplement to Exhibit B to the Lease Agreement which is attached hereto. Of
such amount, [(1) $________ will be used to purchase Related Goods related or
allocable to the Tract __ Property,
F-1
230
(2) $________ will be used to purchase Related Goods related or allocable to the
Tract __ Property and (3) $________ will be used to purchase Related Goods
related or allocable to the Tract __ Property]. Bills of sale for all such
Related Goods, each showing Lessor as the purchaser, also are attached
hereto.][Whenever the requested Improvement/Expense Advance is to be used to pay
for Related Goods, include the preceding three sentences, complete and attach an
Exhibit B Supplement describing the Related Goods and attach the applicable
bills of sale.] Lessee will use the [remaining] proceeds of such
Improvement/Expense Advance to pay the costs and expenses set forth in
Attachment 1 hereto. All such costs and expenses are Permitted Improvement Costs
and/or Permitted Transaction Expenses which are now due and payable. No prior
Advance has been requested to pay any such costs and expenses.
4. Lessee hereby certifies to the Lessor Parties that, on the date of
this Improvement/Expense Advance Request and after giving effect to the
requested Improvement/Expense Advance:
(a) The representations and warranties of Lessee set forth in
Paragraph 4.01 of the Participation Agreement and in the other Operative
Documents are true and correct in all material respects as if made on such
date (except for representations and warranties expressly made as of a
specified date, which shall be true as of such date);
(b) No Default has occurred and is continuing; and
(c) All of the Operative Documents are in full force and effect.
5. Please disburse the proceeds of the Improvement/Expense Advance to
___________________________________________________.
F-2
231
IN WITNESS WHEREOF, Lessee has executed this Improvement/Expense Advance
Request on the date set forth above.
KLA-TENCOR CORPORATION
By: _____________________________
Name: _______________________
Title: ______________________
F-3
232
ATTACHMENT 1
TO
IMPROVEMENT/EXPENSE ADVANCE REQUEST
F-4
233
EXHIBIT G(1)
COMMITMENT EXTENSION REQUEST
[Date]
Lease Plan U.S.A., Inc.
c/o ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to that certain Participation Agreement, dated as
of November 12, 1997 (the "Participation Agreement"), among KLA-Tencor
Corporation ("Lessee"), Lease Plan U.S.A., Inc. ("Lessor"), the financial
institutions listed in Schedule I to the Participation Agreement (the
"Participants") and ABN AMRO Bank N.V., as agent for the Participants (in such
capacity, "Agent"). Unless otherwise indicated, all terms defined in the
Participation Agreement have the same respective meanings when used herein.
2. Pursuant to Subparagraph 2.09(a) of the Participation Agreement,
Lessee hereby irrevocably requests Lessor to extend (and the Participants to
consent to such extension) the Unused Total Commitment ($___________) for an
additional six (6) months by extending the current Commitment Termination Date
from [__________] to [__________].
3. Lessee hereby certifies to the Lessor Parties that, on the date of
this Commitment Extension Request and after giving effect to the extension
requested hereby:
(a) The representations and warranties of Lessee set forth in
Paragraph 4.01 of the Participation Agreement and in the other Operative
Documents are true and correct in all material respects as if made on such
date (except for representations and warranties expressly made as of a
specified date, which shall be true as of such date);
(b) No Default has occurred and is continuing; and
(c) All of the Operative Documents are in full force and effect.
G(1)-1
234
IN WITNESS WHEREOF, Lessee has executed this Commitment Extension Request
on the date set forth above.
KLA-TENCOR CORPORATION
By: _____________________________
Name: _______________________
Title: ______________________
CONSENT
The undersigned hereby consents to the extension of the Commitment
Termination Date requested above.
_________________________________
By: _____________________________
Name: _______________________
Title: ______________________
Date: ___________________________
G(1)-2
235
EXHIBIT G(2)
LEASE EXTENSION REQUEST
[Date]
Lease Plan U.S.A., Inc.
c/o ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to that certain Participation Agreement, dated as
of November 12, 1997 (the "Participation Agreement"), among KLA-Tencor
Corporation ("Lessee"), Lease Plan U.S.A., Inc. ("Lessor"), the financial
institutions listed in Schedule I to the Participation Agreement (the
"Participants") and ABN AMRO Bank N.V., as agent for the Participants (in such
capacity, "Agent"). Unless otherwise indicated, all terms defined in the
Participation Agreement have the same respective meanings when used herein.
2. Pursuant to Subparagraph 2.09(b) of the Participation Agreement,
Lessee hereby irrevocably requests Lessor to extend (and the Participants to
consent to such extension) the Term of the Lease Agreement for an additional two
(2) years by extending the current Scheduled Expiration Date from [__________]
to [__________].
3. Lessee hereby certifies to the Lessor Parties that, on the date of
this Lease Extension Request and after giving effect to the extension requested
hereby:
(a) The representations and warranties of Lessee set forth in
Paragraph 4.01 of the Participation Agreement and in the other Operative
Documents are true and correct in all material respects as if made on such
date (except for representations and warranties expressly made as of a
specified date, which shall be true as of such date);
(b) No Default has occurred and is continuing; and
(c) All of the Operative Documents are in full force and effect.
G(2)-1
236
IN WITNESS WHEREOF, Lessee has executed this Lease Extension Request on
the date set forth above.
KLA-Tencor Corporation
By: _____________________________
Name: _______________________
Title: ______________________
CONSENT
The undersigned hereby consents to the extension of the Scheduled
Expiration Date requested above upon the terms set forth in the attachment
hereto.
_________________________________
By: _____________________________
Name: _______________________
Title: ______________________
Date: ___________________________
G(2)-2
237
EXHIBIT H
ASSIGNMENT OF CONSTRUCTION AGREEMENTS
THIS ASSIGNMENT OF CONSTRUCTION AGREEMENTS (this "Agreement" herein),
dated as of November 12, 1997, is executed by
(1) KLA-TENCOR CORPORATION, a Delaware corporation ("Lessee"),
in favor of
(2) LEASE PLAN U.S.A., INC., a Georgia corporation ("Lessor").
RECITALS
A. Lessee has requested Lessor and the financial institutions which are
"Participants" under the Participation Agreement referred to in Recital B below
(such financial institutions to be referred to collectively as the
"Participants") to provide to Lessee a certain lease facility. Pursuant to such
facility:
(1) Lessor would (a) acquire certain property designated by Lessee
(either through purchase or lease), (b) lease to Lessee such property and
certain other property currently held by Lessor, (c) appoint Lessee as
Lessor's agent to make certain improvements to a portion of such property,
(d) make advances to finance such improvements and to pay certain related
expenses, and (e) grant to Lessee the right to purchase such property; and
(2) The Participants would participate in such lease facility by
(a) funding the purchase price and other advances to be made by Lessor and
(b) acquiring participation interests in the rental and certain other
payments to be made by Lessee.
B. Pursuant to a Participation Agreement dated of even date herewith
(the "Participation Agreement") among Lessee, Lessor, the Participants and ABN
AMRO Bank N.V., as agent for the Participants (in such capacity, "Agent"),
Lessor and the Participants have agreed to provide such lease facility upon the
terms and subject to the conditions set forth therein, including, without
limitation, the execution and delivery of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
SECTION 1. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this Agreement or any
other Operative Document, each term set forth in Schedule 1.01 to the
Participation Agreement, when used in
H-1
238
this Agreement or any other Operative Document, shall have the respective
meaning given to that term in such Schedule 1.01 or in the provision of this
Agreement or other document, instrument or agreement referenced in such Schedule
1.01.
1.02. Rules of Construction. Unless otherwise indicated in this Agreement
or any other Operative Document, the rules of construction set forth in Schedule
1.02 to the Participation Agreement shall apply to this Agreement and the other
Operative Documents.
SECTION 2. ASSIGNMENT.
2.01. Assignment. Lessee hereby assigns to Lessor all of Lessee's right,
title and interest in, to and under all existing and future agreements and
contracts between Lessee and any other Person (collectively, the "Construction
Agreements") relating to the construction of any and all New Improvements on any
portion of the Land described in Exhibit A to the Lease Agreement, including,
without limitation, the agreements and contracts described in Exhibit A and all
future Construction Agreements which may be entered into by Lessee. Upon
execution of any new Construction Agreement, Lessee shall promptly notify Lessor
of such Construction Agreement. Upon Lessor's request, Lessee shall provide
Lessor with copies of the Construction Agreements.
2.02. Absolute Assignment. This Agreement constitutes a present and
absolute assignment to Lessor; provided, however, that Lessor may not enforce
the terms of the Construction Agreements except during continuance of an Event
of Default. Upon the occurrence of any Event of Default, Lessor may, in its sole
discretion, give notice to any of the contractors referred to in the
Construction Agreements or any other party to the Construction Agreements
(collectively, the "Contractors") of its intent to enforce the rights of Lessee
under the Construction Agreements and may initiate or participate in any legal
proceedings respecting the enforcement of said rights. Lessee acknowledges that,
by accepting this assignment, Lessor does not assume any of Lessee's obligations
under the Construction Agreements.
2.03. Contractor's Consent. In connection with the execution and delivery
to Lessor of this Agreement, Lessee shall obtain and deliver to Lessor consents
from each Contractor under each Construction Agreement in the form attached
hereto as Exhibit B (a "Contractor's Consent to Assignment"). Lessee shall
obtain and provide to Lessor a Contractor's Consent to Assignment for any new
Construction Agreements entered into by Lessee after the date hereof.
SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF LESSEE.
3.01. Representations and Warranties. Lessee represents and warrants to
Lessor that (a) all Construction Agreements entered into by Lessee are in full
force and effect and are enforceable and no default, or event which would
constitute a default after notice or the passage of time, or both, exists with
respect to said Construction Agreements; (b) all copies of the Construction
Agreements delivered to Lessor are complete and correct; and (c) Lessee has not
assigned any of its rights under the Construction Agreements.
3.02. Covenants. Lessee agrees (a) to pay and perform all obligations of
Lessee under the Construction Agreements; (b) to enforce the payment and
performance of all obligations of
H-2
239
any other Person under the Construction Agreements; (c) not to revise, amend or
modify the existing Construction Agreements if such revision, amendment or
modification (either alone or together with all prior revisions, amendments or
modifications to such Construction Agreements) would result in Lessee's failure
to comply with the provisions of Section 3.01 of the Construction Agency
Agreement nor to enter into any future Construction Agreements without Lessor's
prior written approval which shall not be unreasonably withheld, except as
otherwise may be permitted by the Operative Documents; and (d) not to further
assign, for security or any other purposes, its rights under the Construction
Agreements without Lessor's prior written approval.
SECTION 4. MISCELLANEOUS.
4.01. Notices. Except as otherwise specified herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Lessee or Lessor under this Agreement shall be given as provided in Subparagraph
2.02(c) and Paragraph 7.01 of the Participation Agreement.
4.02. Waivers; Amendments. Any term, covenant, agreement or condition of
this Agreement may be amended or waived only as provided in the Participation
Agreement. No failure or delay by any Lessor Party in exercising any right
hereunder shall operate as a waiver thereof or of any other right nor shall any
single or partial exercise of any such right preclude any other further exercise
thereof or of any other right. Unless otherwise specified in any such waiver or
consent, a waiver or consent given hereunder shall be effective only in the
specific instance and for the specific purpose for which given.
4.03. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Lessor Parties and Lessee and their permitted
successors and assigns; provided, however, that the Lessor Parties and Lessee
shall not sell, assign or delegate their respective rights and obligations
hereunder except as provided in the Participation Agreement.
4.04. No Third Party Rights. Nothing expressed in or to be implied from
this Agreement is intended to give, or shall be construed to give, any Person,
other than the Lessor Parties and Lessee and their permitted successors and
assigns, any benefit or legal or equitable right, remedy or claim under or by
virtue of this Agreement or under or by virtue of any provision herein.
4.05. Partial Invalidity. If at any time any provision of this Agreement
is or becomes illegal, invalid or unenforceable in any respect under the law or
any jurisdiction, neither the legality, validity or enforceability of the
remaining provisions of this Agreement nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
4.06. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without reference to
conflicts of law rules.
[The signature page follows.]
H-3
240
IN WITNESS WHEREOF, Lessee has caused this Agreement to be executed as of
the day and year first above written.
LESSEE: KLA-TENCOR CORPORATION
By: _____________________________
Name: _______________________
Title: ______________________
H-4
241
EXHIBIT A
CONSTRUCTION AGREEMENTS
NONE
H-5
242
EXHIBIT B
CONTRACTOR'S CONSENT TO ASSIGNMENT
1. Reference is made to (a) the property located at [___________] (the
"Property") and (b) the agreement[s] described in Attachment 1 hereto between
KLA-Tencor Corporation ("Lessee") and the undersigned ("Contractor").
2. Lessee has notified Contractor that, pursuant to an Assignment of
Construction Agreements dated as of November 12, 1997 between Lessee and Lease
Plan U.S.A., Inc. ("Lessor") (the "Assignment"), Lessee has assigned to Lessor
the agreement[s] described in Attachment 1 hereto and all future agreements and
contracts between Lessee and Contractor relating to the construction,
maintenance or repair of any improvements to the Property (collectively, the
"Construction Agreements").
3. Contractor hereby consents to the Assignment and agrees as follows
for the benefit of Lessor:
(a) Except with the prior written approval of Lessor, Contractor
shall not perform any construction work pursuant to any change in the
plans and specifications as set forth or attached to the Construction
Agreements where such change would affect the structural integrity,
quality of building material or equipment or overall efficiency of
operating systems or utility systems of the improvements. The liens of
Lessor's security interests shall have priority over any claim of lien of
Contractor arising out of or in any way connected with any construction
work performed by Contractor on the Property.
(b) If requested by Lessor in the exercise of Lessor's rights
under the Assignment, Contractor shall continue to perform its obligations
under the Construction Agreements in accordance with the terms thereof.
Contractor acknowledges that Lessor may have no means of discovering when
or if Contractor claims a default under the Construction Agreements and
agrees that it will give Lessor prior written notice of any default
claimed by Contractor under the Construction Agreements. Said notice shall
set forth a description of the default and a request to Lessor to cure the
same within thirty (30) days. Said notice shall be deemed served upon
delivery or, if mailed, upon the first to occur of receipt or the
expiration of seventy-two (72) hours after deposit in United States Postal
Service certified mail, postage prepaid and addressed to the address of
Lessor appearing below. No termination of the Construction Agreements by
Contractor shall be binding upon Lessor unless Lessor has received such
notice and has failed to cure the described default within said thirty
(30) days. Contractor further acknowledges that, unless and until Lessor
elects to exercise its rights under the Assignment and requests
Contractor's performance under the Construction Agreements in writing,
Lessor neither undertakes nor assumes any obligations or liability under
the Construction Agreements.
(c) Contractor shall hold in trust all money disbursed to or
otherwise received by Contractor from or on account of Lessee in
connection with the construction of the
H-6
243
improvements and shall use such money solely for the payment of costs
incurred in the construction of the improvements, including Contractor's
fees, and for no other purpose, until all bills, claims and demands for
such costs have been paid in full.
IN WITNESS WHEREOF, Contractor has executed this Consent on this
___________ day of __________, ____.
[________________________________]
By: _____________________________
Name: _______________________
Title: ________________________
Contractor's Address:
[________________________________]
[________________________________]
[________________________________]
[________________________________]
Lessor's Address:
Lease Plan U.S.A., Inc.
c/o ABN AMRO Bank N.V.
135 So. LaSalle Street
Suite 711
Chicago, IL 60603
Attn: David M. Shipley
H-7
244
EXECUTION COPY
================================================================================
ASSIGNMENT OF CONSTRUCTION AGREEMENTS
BY
KLA-TENCOR CORPORATION
IN FAVOR OF
LEASE PLAN U.S.A., INC.
NOVEMBER 12, 1997
================================================================================
H-8
245
EXHIBIT I
ASSIGNMENT OF LEASE
ASSIGNMENT OF LEASE AGREEMENT AND PURCHASE AGREEMENT
THIS ASSIGNMENT OF LEASE AGREEMENT AND PURCHASE AGREEMENT (this
"Assignment" herein), dated as of November 12, 1997, is executed by:
(1) LEASE PLAN U.S.A., INC., a Georgia corporation ("Lessor")
in favor of
(2) ABN AMRO BANK N.V., as agent for the Participants under the
Participation Agreement referred to in Recital B below (in such capacity,
"Agent").
RECITALS
A. KLA-Tencor Corporation, a Delaware corporation ("Lessee"), has
requested Lessor and the financial institutions which are "Participants" under
the Participation Agreement referred to in Recital B below (such financial
institutions to be referred to collectively as the "Participants") to provide to
Lessee a certain lease facility. Pursuant to such facility:
(1) Lessor would (a) acquire certain property designated by Lessee
(either through purchase or lease), (b) lease to Lessee such property and
certain other property currently held by Lessor, (c) appoint Lessee as
Lessor's agent to make certain improvements to a portion of such property,
(d) make advances to finance such improvements and to pay certain related
expenses, and (e) grant to Lessee the right to purchase such property; and
(2) The Participants would participate in such lease facility by
(a) funding the purchase prices and other advances to be made by Lessor
and (b) acquiring participation interests in the rental and certain other
payments to be made by Lessee.
B. Pursuant to a Participation Agreement dated of even date herewith
(the "Participation Agreement") among Lessee, Lessor, the Participants and
Agent, Lessor and the Participants have agreed to provide such lease facility
upon the terms and subject to the conditions set forth therein, including,
without limitation, the execution and delivery of (1) the Lease Agreement dated
as of November 12, 1997 between Lessee and Lessor (the "Lease Agreement"),
pursuant to which Lessee has leased from Lessor the lots, pieces, tracts and
parcels of land described in Exhibit A (the "Land") and the other property
described in the Lease Agreement (the "Property"), (2) the Purchase Agreement
dated as of November 12, 1997 between Lessee and Lessor (the "Purchase
Agreement"), pursuant to which Lessee may purchase the Property from Lessor
under certain circumstances, and (3) this Assignment.
I-1
246
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
SECTION 7. INTERPRETATION.
7.01. Definitions. Unless otherwise indicated in this Assignment or any
other Operative Document, each term set forth in Schedule 1.01 to the
Participation Agreement, when used in this Assignment or any other Operative
Document, shall have the respective meaning given to that term in such Schedule
1.01 or in the provision of this Assignment or other document, instrument or
agreement referenced in such Schedule 1.01.
7.02. Rules of Construction. Unless otherwise indicated in this Assignment
or any other Operative Document, the rules of construction set forth in Schedule
1.02 to the Participation Agreement shall apply to this Assignment and the other
Operative Documents.
SECTION 8. ASSIGNMENT.
8.01. Assignment. As security for the Lessor Obligations, Lessor hereby
irrevocably and unconditionally grants, conveys, transfers and assigns to Agent,
for the benefit of the Participants and Agent, all estate, right, title and
interest of Lessor, whether now owned or hereafter acquired, in the Lease
Agreement and the Purchase Agreement, including all claims and rights to the
payment of money at any time arising in connection with any repudiation,
rejection or breach of either agreement by Lessee or a trustee or receiver of
Lessee in any bankruptcy, insolvency or similar proceeding.
8.02. Receipt of Rents, Etc. Lessor hereby irrevocably designates Agent
(or its designee) to receive all Rents and other payments to be made by Lessee
under the Lease Agreement and the Purchase Agreement. Lessor shall direct (and
hereby directs) Lessee to deliver to Agent (or its designee), at its address set
forth in the Participation Agreement or at such other address or to such other
Person as Agent shall designate, all such payments, and no delivery thereof by
Lessee shall be of any force or effect unless made to Agent (or its designee),
as herein provided. Lessor and Agent agree that Lessee, in making such payments
to Agent pursuant to the directions contained in this Assignment and in reliance
on such directions shall be deemed to have satisfied its obligation for such
payments under the Lease Agreement.
8.03. Irrevocability; Supplemental Instruments. Lessor agrees that (a)
this Assignment is irrevocable, (b) Lessor will not take any action under the
Lease Agreement or the Purchase Agreement or otherwise which is inconsistent
with this Assignment, (c) any action, assignment, designation or direction
inconsistent herewith shall be void and (d) Lessor will from time to time
execute and deliver all instruments of further assurance and do such further
acts as may be reasonably necessary or proper to carry out more effectively the
purpose of this Assignment.
8.04. Validity. Lessor represents, warrants, covenants and agrees that (a)
Lessor has not assigned or executed any assignment of, and will not assign or
execute any assignment of, Lessor's estate, right, title or interest in the
Lease Agreement or the Purchase Agreement to
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anyone other than Agent, (b) any such assignment is void, and (c) Lessor has not
taken any action that impairs the rights of Agent hereunder.
8.05. Lessor Remains Liable. The assignment made hereby is made for the
purpose of securing the Lessor Obligations only and does not (a) impair or
diminish in any way the obligations of Lessor under the Lease Agreement or the
Purchase Agreement or (b) obligate Agent (or its designee) or any Participant to
perform any of the obligations of Lessor under the Lease Agreement or the
Purchase Agreement. This Assignment shall not operate to cause Agent (or its
designee) to be regarded as a mortgagee in possession.
8.06. Effect of Amendments. If the Lease Agreement or the Purchase
Agreement shall be amended, it shall continue to be subject to the provisions
hereof without the necessity of any further act by any of the parties hereto.
8.07. Absolute Assignment. Lessor has, subject to and in accordance with
the terms and conditions of this Assignment, assigned and transferred unto Agent
all of Lessor's right, title and interest in and to all Rents and other amounts
now or hereafter payable by Lessee under the Lease Agreement and the Purchase
Agreement, it being intended to establish an absolute transfer and assignment,
subject to and in accordance with the terms and conditions of this Assignment,
of all such Rents and other amounts to Agent and not merely to grant a security
interest therein. Subject to the Lease Agreement, Agent (or its designee) may,
in Lessor's name and stead, operate the Property and rent, lease or let all or
any portion of the Property to any party or parties at such rental and upon such
terms as Agent (or its designee) shall, in its discretion, determine.
8.08. Receivers. If, notwithstanding the terms of this Assignment, a
petition or order for sequestration of rents, or the appointment of a receiver
or some similar judicial action or order is deemed required under applicable
California law to allow Agent to continue to collect the Rents and other amounts
payable by Lessee under the Lease Agreement or the Purchase Agreement, then it
is agreed by Lessor that any proof of claim or similar document filed by Agent
in connection with the breach or rejection of the Lease Agreement or the
Purchase Agreement by Lessee thereunder or the trustee of any lessee under any
federal or state bankruptcy, insolvency or other similar law shall, for the
purpose of perfecting Agent's rights, be deemed to constitute action required
under such California law. Upon the occurrence and during the continuance of an
Event of Default, Lessor hereby consents to the appointment of a receiver for
Lessor's interest in the Property without regard to the solvency of Lessor or to
the collateral that may be available for the satisfaction of the Lessor
Obligations.
SECTION 9. MISCELLANEOUS.
9.01. Notices. Except as otherwise specified herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Lessor or Agent under this Assignment shall be given as provided in Paragraph
7.01 of the Participation Agreement.
9.02. Waivers; Amendments. Any term, covenant, agreement or condition of
this Assignment may be amended or waived only as provided in the Participation
Agreement. No failure or delay by Agent in exercising any right hereunder shall
operate as a waiver thereof or of any other right nor shall any single or
partial exercise of any such right preclude any other
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further exercise thereof or of any other right. Unless otherwise specified
in any such waiver or consent, a waiver or consent given hereunder shall be
effective only in the specific instance and for the specific purpose for which
given.
9.03. Successors and Assigns. This Assignment shall be binding upon and
inure to the benefit of the Lessor Parties and their permitted successors and
assigns; provided, however, that the Lessor Parties shall not sell, assign or
delegate their respective rights and obligations hereunder except as provided in
the Participation Agreement.
9.04. No Third Party Rights. Nothing expressed in or to be implied from
this Assignment is intended to give, or shall be construed to give, any Person,
other than the Lessor Parties and their permitted successors and assigns, any
benefit or legal or equitable right, remedy or claim under or by virtue of this
Assignment or under or by virtue of any provision herein.
9.05. Partial Invalidity. If at any time any provision of this Assignment
is or becomes illegal, invalid or unenforceable in any respect under the law or
any jurisdiction, neither the legality, validity or enforceability of the
remaining provisions of this Assignment nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
9.06. Governing Law. This Assignment shall be governed by and construed in
accordance with the laws of the State of California without reference to
conflicts of law rules.
9.07. Counterparts. This Assignment may be executed in any number of
identical counterparts, any set of which signed by all the parties hereto shall
be deemed to constitute a complete, executed original for all purposes.
[The signature page follows.]
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IN WITNESS WHEREOF, Lessor has caused this Assignment to be executed as of
the day and year first above written.
LESSOR: LEASE PLAN U.S.A., INC.
By: _____________________________
Name: _______________________
Title: ______________________
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STATE OF CALIFORNIA )
) ss
COUNTY OF __________________ )
On _____________, 1997, before me, ___________________ a Notary Public in
and for the State of California, personally appeared , personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s) or the
entity on behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
[SEAL]
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EXHIBIT A
LAND
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EXHIBIT B
LESSEE'S CONSENT TO
ASSIGNMENT OF LEASE AGREEMENT AND PURCHASE AGREEMENT
November 12, 1997
Lease Plan U.S.A., Inc.
c/o ABN AMRO Bank N.V.
135 So. LaSalle Street, Suite 711
Chicago, IL 60603
ABN AMRO Bank N.V.,
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
1. Reference is made to the following:
(a) The Participation Agreement, dated as of November 12, 1997
(the "Participation Agreement"), among KLA-Tencor Corporation ("Lessee"),
Lease Plan U.S.A., Inc. ("Lessor"), the financial institutions listed in
Schedule I to the Participation Agreement (the "Participants") and ABN
AMRO Bank N.V., as agent for the Participants (in such capacity, "Agent");
(b) The Lease Agreement, dated as of November 12, 1997 (the "Lease
Agreement"), between Lessee and Lessor;
(c) The Purchase Agreement, dated as of November 12, 1997 (the
"Purchase Agreement"), between Lessee and Lessor; and
(d) The Assignment of Lease Agreement and Purchase Agreement,
dated as of November 12, 1997 (the "Assignment of Lease"), executed by
Lessor in favor of Agent.
Unless otherwise indicated, all terms defined in the Participation Agreement
have the same respective meanings when used herein.
2. Consent. Lessee hereby consents to the Assignment of Lease.
3. Payments. Lessee agrees to pay and deliver to Agent (or its
designee) all Rents and other amounts payable by Lessee under the Lease
Agreement and the Purchase Agreement in accordance with the terms thereof.
Lessee will not, for any reason whatsoever, seek to recover from Agent (or its
designee) any moneys paid to Agent (or its designee) by virtue of the Assignment
of Lease.
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4. Lessee's Other Agreements. Lessee hereby further agrees with Lessor
and Agent as follows:
(a) Lessee agrees (i) to deliver to Agent (or its designee) and
Lessor, at their addresses set forth in the Participation Agreement or at
such other addresses as Agent or Lessor, as the case may be, may
designate, duplicate originals or copies of all notices, undertakings,
demands, statements, documents and other communications which Lessee is
required or permitted to deliver pursuant to the Lease Agreement, the
Purchase Agreement or the Assignment of Lease; (ii) that any notice
delivered or declaration made to Lessee by Agent (or its designee)
pursuant to the Lease Agreement or the Purchase Agreement shall be
effective as a notice given or declaration made to Lessee by Lessor; (iii)
that Agent (or its designee) shall not by reason of the Assignment of
Lease be subject to any liability or obligation under the Lease Agreement
or the Purchase Agreement except as set forth in the Assignment of Lease;
and (iv) that any waiver, consent or approval by Lessor under the Lease
Agreement or the Purchase Agreement shall not be valid unless approved in
writing by Agent (or its designee).
(b) Lessee agrees to remain obligated under the Lease Agreement
and the Purchase Agreement in accordance with their respective terms, and
to take no action to terminate (other than in accordance with the terms
thereof), annul, rescind or avoid the Lease Agreement, the Purchase
Agreement or this Consent or to abate, reduce, offset, suspend or defer or
make any counterclaim or raise any defense (other than the defense of
payment to Agent (or its designee)) with respect to the Rents or other
amounts payable thereunder or to cease paying such amounts to Agent (or
its designee) as provided herein.
(c) Lessee hereby agrees that upon the occurrence of any Event of
Default, Agent (or its designee) shall have the right to deliver a notice
of default under the Lease Agreement, which shall be effective for all
purposes under the Lease Agreement as if sent by Lessor.
(d) Lessee shall notify Agent (or its designee) at its address
specified in the Participation Agreement, or such other address as Agent
may designate, of any default by Lessor under the Lease Agreement and
agrees that no such default shall entitle Lessee to terminate (other than
in accordance with the terms of the Lease Agreement), annul, rescind or
avoid the Lease Agreement or reduce or abate the Rents or other amounts
payable thereunder.
5. Amendment or Termination; Agent's Designation. Lessee agrees that it
will not, unilaterally or by agreement, subordinate, amend, supplement, modify,
extend (except in accordance with the express terms thereof), discharge, waive
or terminate (other than in accordance with the terms thereof) the Lease
Agreement, the Purchase Agreement or this Consent without Agent's prior written
consent, and that any attempted subordination, amendment, supplement,
modification, extension, discharge, waiver or termination in violation of this
Section 5 without such consent shall be null and void. In the event that the
Lease Agreement or the Purchase Agreement shall be amended or supplemented as
herein permitted, the Lease Agreement or the Purchase Agreement, as so amended
or supplemented, shall continue to be subject to the provisions of the
Assignment of
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Lease and this Consent without the necessity of any further act by any of the
parties thereto or hereto.
6. Continuing Obligations of Lessor and Lessee. Neither the execution
and delivery of the Assignment of Lease, nor any action or inaction on the part
of Agent shall impair or diminish any obligations of Lessor or Lessee under the
Lease Agreement or the Purchase Agreement, and shall not impose on Agent (or its
designee) any such obligations, nor shall it impose on Agent (or its designee) a
duty to produce Rents or cause Agent to be a mortgagee or pledgee in possession
for any purpose. Except as specifically set forth in this Consent, none of the
terms of the Assignment of Lease shall impose upon Lessee any greater
obligations than those set forth in the Lease Agreement, the Purchase Agreement
and the other Operative Documents.
7. Partial Invalidity. If at any time any provision of this Consent is
or becomes illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of the remaining
provisions of this Consent nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction shall in any way be affected
or impaired thereby.
8. Governing Law. This Consent shall be governed by and construed in
accordance with the laws of the State of California without reference to
conflicts of law rules.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Lessee has executed this Consent on the date set forth
above.
LESSEE: KLA-TENCOR CORPORATION
By: _____________________________
Name: _______________________
Title: ______________________
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RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Thomas Y. Coleman, Esq.
Orrick, Herrington & Sutcliffe LLP
Old Federal Reserve Bank Building
400 Sansome Street
San Francisco, California 94111
================================================================================
ASSIGNMENT OF LEASE AGREEMENT
AND PURCHASE AGREEMENT
BY
LEASE PLAN U.S.A., INC.
IN FAVOR OF
ABN AMRO BANK N.V.,
AS AGENT FOR THE PARTICIPANTS
NOVEMBER 12, 1997
================================================================================
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EXHIBIT J
LESSOR DEED OF TRUST
CONSTRUCTION DEED OF TRUST
THIS CONSTRUCTION DEED OF TRUST dated as of November 12, 1997 (this "Deed
of Trust"), is made by LEASE PLAN U.S.A., INC., a Georgia corporation, as
trustor ("Lessor"), with an address at 135 South LaSalle Street, Chicago, IL
60603, to SANTA CLARA LAND TITLE COMPANY, as trustee ("Trustee"), in favor of
ABN AMRO BANK N.V., with an address at 1325 Avenue of the Americas, 9th Floor,
New York, NY 10019, in its capacity as Agent, as beneficiary (in such capacity,
"Agent"), under the Participation Agreement, dated of even date herewith (as
amended, supplemented or otherwise modified from time to time, the
"Participation Agreement"), among KLA-Tencor Corporation, a Delaware corporation
("Lessee"), Lessor, Agent, and the financial institutions from time to time
parties to the Participation Agreement (the "Participants").
SECTION 1. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this Deed of Trust or any
other Operative Document, each term set forth in Schedule 1.01 to the
Participation Agreement, when used in this Deed of Trust or any other Operative
Document, shall have the respective meaning given to that term in such Schedule
1.01 or in the provision of this Deed of Trust or other document, instrument or
agreement referenced in such Schedule 1.01. All terms defined in the UCC shall
have the respective meanings given to those terms in the UCC.
1.02. Rules of Construction. Unless otherwise indicated in this Deed of
Trust or any other Operative Document, the rules of construction set forth in
Schedule 1.02 to the Participation Agreement shall apply to this Deed of Trust
and the other Operative Documents.
SECTION 2. GRANT IN TRUST
2.01. Property. To secure payment of the Secured Obligations (as defined
below), Lessor does hereby GRANT, CONVEY, SELL, TRANSFER, ASSIGN AND SET OVER
UNTO TRUSTEE, IN TRUST FOR THE BENEFIT OF AGENT, WITH POWER OF SALE AND RIGHT OF
ENTRY AND POSSESSION, all of Lessor's right, title and interest, whether now
owned or hereafter acquired, in or to the following property and rights listed
below (such right, title and interest in such property and rights hereinafter
collectively referred to as the "Property") to the extent of Lessor's estate,
right, title and interest therein, thereto or thereunder:
(a) All lots, pieces, tracts and parcels of land described in
Exhibit A together with such additional parcels of real property as may be
added to Exhibit A from time to time during the term hereof (the "Land");
(b) All Improvements and Appurtenant Rights;
(c) All Related Goods (including those described in Exhibit B and
in each Exhibit B Supplement), Related Permits and Related Agreements; and
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(d) All accessions and accretions to and replacements and
substitutions for the foregoing.
SECTION 3. OBLIGATIONS SECURED
3.01. Obligations Secured. Lessor makes this grant and assignment for the
purpose of securing the following obligations (hereinafter "Secured
Obligations"):
(a) Full and punctual payment, performance and observance by
Lessor of the Lessor Obligations; and
(b) All modifications, extensions and renewals of any of the
obligations secured hereby, however evidenced, including, without
limitation: (i) modifications of the required payment, deferring or
accelerating payment dates wholly or partly; or (ii) amendments,
modifications, extensions or renewals of this Deed of Trust, the
Participation Agreement or any of the other Operative Documents.
SECTION 4. REPRESENTATIONS, WARRANTIES, COVENANTS AND DUTIES OF THE PARTIES.
4.01. Representations and Warranties. Lessor represents and warrants to
Agent as follows:
(a) Lessor is the legal and beneficial owner of the Property (or,
in the case of after-acquired Property, at the time Lessor acquires rights
in the Property, will be the legal and beneficial owner thereof).
(b) Lessor has not transferred to any other Person any of its
right, title or interest in the Property, whether by way of Lien or
otherwise.
(c) Lessor's chief executive office is located at 180 Interstate
Parkway North, Atlanta, Georgia 30339.
4.02. Covenants. Lessor hereby covenants to Agent as follows:
(a) Lessor shall promptly procure, execute and deliver to Agent
all documents, instruments and agreements and perform all acts which are
necessary or desirable, or which Agent may request, to establish,
maintain, preserve, protect and perfect the Property, the Lien granted to
Agent therein and the first priority of such Lien or to enable Agent to
exercise and enforce its rights and remedies hereunder with respect to any
Property.
(b) Lessor shall not sell, transfer or assign any of its right,
title or interest in the Property to any Person (other than Agent),
whether by way of Lien or otherwise.
(c) Without prompt written notice to Agent, Lessor shall not
change Lessor's name or chief executive office.
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4.03. Damages; Insurance and Condemnation Proceeds.
(a) Lessor shall give Agent prompt written notice of the
occurrence of any casualty affecting, or the institution of any
proceedings for eminent domain or for the condemnation of, the Property or
any portion thereof. Agent may participate in any such claims or
proceedings, and Agent is hereby authorized, in its own name or in
Lessor's name, to adjust any loss covered by insurance or any condemnation
claim or cause of action, and to settle or compromise any claim or cause
of action in connection therewith, and Lessor shall from time to time
deliver to Agent any and all further assignments and other instruments
required to permit such participation. The provisions regarding the
adjustment of any loss covered by insurance or any condemnation claim or
cause of action, and to settlement or compromise of any claim or cause of
action in connection therewith provided in this Section 4.03(a) are
subject to the adjustment, settlement and compromise provisions set forth
in the Lease Agreement. In the event of any conflict, the adjustment,
settlement and compromise provisions as provided in the Lease Agreement
shall govern.
(b) The following rights, claims and amounts are hereby absolutely
and irrevocably assigned to and shall be paid to Agent: (i) all awards of
damages and all other compensation payable directly or indirectly by
reason of a condemnation or proposed condemnation for public or private
use affecting all or any part of, or any interest in, the Property; (ii)
all other claims and awards for damages to or decrease in value of all or
any part of, or any interest in, the Property; (iii) all proceeds of any
insurance policies payable by reason of loss sustained to all or any part
of the Property; and (iv) all interest which may accrue on any of the
foregoing (collectively, "Loss Proceeds"). The provisions regarding Loss
Proceeds provided in this Section 4.03(b) are subject to the insurance and
condemnation provisions set forth in the Lease Agreement. In the event of
any conflict, the insurance and condemnation provisions as provided in the
Lease Agreement shall govern.
4.04. Acceptance of Trust; Powers and Duties of Trustee. Trustee accepts
this trust when this Deed of Trust is recorded. From time to time upon written
request of Agent and presentation of this Deed of Trust, or a certified copy
thereof, for endorsement, and without affecting the personal liability of any
person for payment of any indebtedness or performance of any Secured Obligation,
Trustee may, without liability therefor and without notice: (a) reconvey all or
any part of the Property; (b) consent to the making of any map or plat thereof;
(c) join in granting any easement thereon; (d) join in any declaration of
covenants and restrictions; or (e) join in any extension agreement or any
agreement subordinating the lien or charge hereof. Except as may otherwise be
required by applicable law, Trustee or Agent may from time to time apply to any
court of competent jurisdiction for aid and direction in the execution of the
trusts hereunder and the enforcement of the rights and remedies available
hereunder, and Trustee or Agent may obtain orders or decrees directing or
confirming or approving acts in the execution of said trusts and the enforcement
of said remedies. Trustee has no obligation to notify any party of any pending
sale or any action or proceeding (including, without limitation, actions in
which Lessor, Agent or Trustee shall be a party) unless held or commenced and
maintained by Trustee under this Deed of Trust. Trustee shall not be obligated
to perform any act required of it
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hereunder unless the performance of the act is requested in writing and Trustee
is reasonably indemnified and held harmless against loss, cost, liability and
expense.
4.05. Substitution of Trustee. From time to time, by a writing signed and
acknowledged by Agent and recorded in the Office of the Recorder of the County
in which the Property is situated, Agent may appoint another trustee to act in
the place and stead of Trustee or any successor. Such writing shall set forth
any information required by law. The recordation of such instrument of
substitution shall discharge Trustee herein named and shall appoint the new
trustee as the trustee hereunder with the same effect as if originally named
trustee herein. A writing recorded pursuant to the provisions of this paragraph
shall be conclusive proof of the proper substitution of such new trustee.
4.06. Partial and Full Reconveyance. Agent may release, for such
consideration or none, as it may require, any portion of the Property without,
as to the remainder of the Property, in any way impairing or affecting the lien,
security interest and priority herein provided to the Agent as to any other lien
holder or secured party. Further, upon satisfaction in full of the Secured
Obligations, or upon Agent's written request, and upon surrender of this Deed of
Trust or certified copy thereof and any note, instrument or instruments setting
forth all obligations secured hereby to Trustee for cancellation, Trustee shall
reconvey, without warranty, the Property or that portion thereof then held
hereunder. The recitals of any matters or facts in any reconveyance executed
hereunder shall be conclusive proof of the truthfulness thereof. To the extent
permitted by law, the reconveyance may describe the grantee as "the person or
persons legally entitled thereto." Neither Agent nor Trustee shall have any duty
to determine the rights of persons claiming to be rightful grantees of any
reconveyance.
4.07. Releases, Extensions, Modifications and Additional Security. Agent
may, from time to time, release any person or entity from liability for the
payment or performance of any Secured Obligation, take any action or make any
agreement extending the maturity or otherwise altering the terms or increasing
the amount of any Secured Obligation, or accept additional security or release
all or a portion of the Property and other security for the Secured Obligations.
None of the foregoing actions shall release or impair the priority of the lien
of this Deed of Trust upon the Property.
SECTION 5. DEFAULT; REMEDIES.
5.01. Event of Default. The occurrence of any of the following events
shall be deemed an event of default ("Event of Default") hereunder:
(a) The occurrence of an Event of Default as defined in the Lease
Agreement; or
(b) Lessor shall fail to observe, perform or discharge any of
Lessor's Obligations, and (i) such failure shall remain uncured for thirty
(30) days after written notice thereof shall have been given to Lessor by
Agent, or (ii) if such failure is of such a nature that it cannot be cured
within such thirty (30) day period, Lessor shall fail to commence to cure
such failure within such thirty (30) day period or shall fail to
diligently prosecute such curative action thereafter.
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5.02. Rights and Remedies. At any time after the occurrence and during the
continuance of an Event of Default, Agent and Trustee shall each have all of the
following rights and remedies:
(a) Appointment of a Receiver. To apply to any court of competent
jurisdiction for, and obtain appointment of, a receiver for the Property.
(b) Specific Performance. To bring an action in any court of
competent jurisdiction to obtain specific enforcement of any of the
covenants or agreements of Lessor in this Deed of Trust or any of the
other Operative Documents.
(c) Collection of Issues and Profits. To collect Issues and
Profits.
(d) Protection of Property. To enter, take possession of, manage
and operate all or any part of the Property or take any other actions
which it reasonably determines are necessary to protect the Property and
the rights and remedies of Agent under this Deed of Trust and the other
Operative Documents, including (i) taking and possessing all of Lessor's
books and records; (ii) entering into, enforcing, modifying, or canceling
subleases on such terms and conditions as Agent may consider proper; (iii)
obtaining and evicting tenants; (iv) fixing or modifying sublease rents;
(v) collecting and receiving any payment of money owing to Lessee; (vi)
completing any unfinished Improvements; and/or (vii) contracting for and
making repairs and alterations.
(e) Uniform Commercial Code Remedies. To exercise any or all of
the remedies granted to a secured party under the California Uniform
Commercial Code.
(f) Judicial Foreclosure. To bring an action in any court of
competent jurisdiction to foreclose the security interest in the Property
granted to Agent by this Deed of Trust or any of the other Operative
Documents.
(g) Power of Sale. To cause some or all of the Property, including
any Personal Property Collateral, to be sold under a power of sale or
otherwise disposed of in any combination and in any manner permitted by
applicable Governmental Rules.
(i) Sales of Personal Property. Agent may dispose of any
Personal Property Collateral separately from the sale of Real
Property Collateral, in any manner permitted by Division 9 of the
California Uniform Commercial Code, including any public or private
sale, or in any manner permitted by any other applicable
Governmental Rule. Any proceeds of any such disposition shall not
cure any Event of Default or reinstate any Lessor Obligation for
purposes of Section 2924c of the California Civil Code. In
connection with any such sale or other disposition, Lessor agrees
that the following procedures constitute a commercially reasonable
sale:
(A) Agent shall mail written notice of the sale to
Lessor not later than thirty (30) days prior to such sale.
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(B) Once per week during the three weeks immediately
preceding such sale, Agent will publish notice of the sale in
a local daily newspaper of general circulation.
(C) Upon receipt of any written request, Agent will
make the Property available to any bona fide prospective
purchaser for inspection during reasonable business hours.
(D) Notwithstanding anything to the contrary herein,
Agent shall be under no obligation to consummate a sale if, in
its judgment, none of the offers received by it equals the
fair value of the Property offered for sale.
(E) If Agent so requests, Lessor shall assemble all of
the Personal Property Collateral and make it available to
Agent at the site of the Land. Regardless of any provision of
this Deed of Trust or any other Operative Document, Agent
shall not be considered to have accepted any property other
than cash or immediately available funds in satisfaction of
any Lessor Obligation, unless Agent has given express written
notice of its election of that remedy in accordance with
California Uniform Commercial Code Section 9505.
The foregoing procedures do not constitute the only procedures that
may be commercially reasonable.
(ii) Agent's Sales of Real Property or Mixed Collateral.
Agent may choose to dispose of some or all of the Property which
consists solely of Real Property Collateral in any manner then
permitted by applicable Governmental Rules, including without
limitation a nonjudicial trustee's sale pursuant to California Civil
Code ss.ss. 2924 et seq. In its discretion, Agent may also or
alternatively choose to dispose of some or all of the Property, in
any combination consisting of both Real Property Collateral and
Personal Property Collateral, together in one sale to be held in
accordance with the law and procedures applicable to real property,
as permitted by Section 9501(4) of the California Uniform Commercial
Code. Lessor agrees that such a sale of Personal Property Collateral
together with Real Property Collateral constitutes a commercially
reasonable sale of the Personal Property Collateral. (For purposes
of this power of sale, either a sale of Real Property Collateral
alone, or a sale of both Real Property Collateral and Personal
Property Collateral together in accordance with California Uniform
Commercial Code Section 9501(4), will sometimes be referred to as an
"Agent's Sale.")
(A) Before any Agent's Sale, Agent shall give such
notice of default and election to sell as may then be required
by applicable Governmental Rules.
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(B) When all time periods then legally mandated have
expired, and after such notice of sale as may then be legally
required has been given, Agent shall sell the property being
sold at a public auction to be held at the time and place
specified in the notice of sale.
(C) Agent shall have no obligation to make demand on
Lessor before any Agent's Sale.
(D) From time to time in accordance with then
applicable law, Agent may postpone any Agent's Sale by public
announcement at the time and place noticed for that sale.
(E) At any Agent's Sale, Agent shall sell to the
highest bidder at public auction for cash in lawful money of
the United States.
(F) Agent shall execute and deliver to the
purchaser(s) a deed or deeds conveying the Property being sold
without any covenant or warranty whatsoever, express or
implied. The recitals in any such deed of any matters or
facts, including any facts bearing upon the regularity or
validity of any Agent's Sale, shall be conclusive proof of
their truthfulness. Any such deed shall be conclusive against
all Persons as to the facts recited in it.
(h) Foreclosure Sales.
(i) Single or Multiple. If the Property consists of more
than one lot, parcel or item of property, Agent may:
(A) Designate the order in which the lots, parcels
and/or items shall be sold or disposed of or offered for sale
or disposition; and
(B) Elect to dispose of the lots, parcels and/or items
through a single consolidated sale or disposition to be held
or made under the power of sale granted under this Deed of
Trust, or in connection with judicial proceedings, or by
virtue of a judgment and decree of foreclosure and sale; or
through two or more such sales or dispositions; or in any
other manner Agent may deem to be in its best interests (any
such sale or disposition, a "Foreclosure Sale;" any two or
more, "Foreclosure Sales").
If Agent chooses to have more than one Foreclosure Sale, Agent at
its option may cause the Foreclosure Sales to be held simultaneously
or successively, on the same day, or on such different days and at
such different times and in such order as it may deem to be in its
best interests. No Foreclosure Sale shall terminate or affect the
security interests granted to Agent in the Property by this Deed of
Trust on any part of the Property which has not been sold, until all
of the Lessor Obligations have been performed in full.
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(ii) Credit Bids. At any Foreclosure Sale, any Person,
Participant or Agent may bid for and acquire the Property or any
part of it to the extent permitted by then applicable Governmental
Rules. Instead of paying cash for that property, Agent may settle
for the purchase price by crediting the sales price of the Property
against the Lessor Obligations in any order and proportions as Agent
in its sole discretion may choose.
(i) Other Rights and Remedies. To exercise any other right, power
or remedy permitted to it by any applicable Governmental Rule, either by
suit in equity or by action at law, or both.
5.03. Remedies Cumulative. The rights and remedies of Agent under this
Deed of Trust and the other Operative Documents are cumulative and may be
exercised singularly, successively, or together.
5.04. No Cure or Waiver. The exercise by Agent of any of its other rights
and remedies under this Deed of Trust or any other Operative Document (including
the collection of Issues and Profits) shall not constitute a cure or waiver of
any Event of Default or nullify the effect of any notice of default or sale,
unless and until all Lessor Obligations are performed in full.
5.05. Exercise of Rights and Remedies. The rights and remedies provided to
Agent under this Deed of Trust may be exercised by Agent itself, by a
court-appointed receiver or by any other Person appointed by any of the
foregoing to act on its behalf. All of the benefits afforded to Agent under this
Deed of Trust and the other Operative Documents shall accrue to the benefit of
the Participants to the extent provided in Subparagraph 2.02(c) of the
Participation Agreement.
SECTION 6. MISCELLANEOUS PROVISIONS
6.01. Notices. Except as otherwise specified herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Lessor or Agent under this Deed of Trust shall be given as provided in Paragraph
7.01 of the Participation Agreement.
6.02. Waivers; Amendments. Any term, covenant, agreement or condition of
this Deed of Trust may be amended or waived only as provided in the
Participation Agreement. No failure or delay by Agent in exercising any right
hereunder shall operate as a waiver thereof or of any other right nor shall any
single or partial exercise of any such right preclude any other further exercise
thereof or of any other right. Unless otherwise specified in any such waiver or
consent, a waiver or consent given hereunder shall be effective only in the
specific instance and for the specific purpose for which given.
6.03. Successors and Assigns. This Deed of Trust shall be binding upon and
inure to the benefit of the Lessor Parties and their permitted successors and
assigns; provided, however, that the Lessor Parties shall not sell, assign or
delegate their respective rights and obligations hereunder except as provided in
the Participation Agreement.
6.04. No Third Party Rights. Nothing expressed in or to be implied from
this Deed of Trust is intended to give, or shall be construed to give, any
Person, other than the Lessor Parties
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and their permitted successors and assigns, any benefit or legal or equitable
right, remedy or claim under or by virtue of this Deed of Trust or under or by
virtue of any provision herein.
6.05. Partial Invalidity. If at any time any provision of this Deed of
Trust is or becomes illegal, invalid or unenforceable in any respect under the
law or any jurisdiction, neither the legality, validity or enforceability of the
remaining provisions of this Deed of Trust nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
6.06. Governing Law. This Deed of Trust shall be governed by and construed
in accordance with the laws of the State of California without reference to
conflicts of law rules.
6.07. Counterparts. This Deed of Trust may be executed in any number of
identical counterparts, any set of which signed by all the parties hereto shall
be deemed to constitute a complete, executed original for all purposes.
6.08. Further Assurances. Lessor shall, upon demand by Agent or Trustee,
execute, acknowledge (if appropriate) and deliver any and all documents and
instruments and do or cause to be done all further acts reasonably necessary or
appropriate to effectuate the provisions hereof.
6.09. Merger. No merger shall occur as a result of Agent's acquiring any
other estate in, or any other lien on, the Property unless Agent consents to a
merger in writing.
6.10. Waiver of Marshalling Rights. Lessor, for itself and for all parties
claiming through or under Lessor, and for all parties who may acquire a lien on
or interest in the Property, hereby waives all rights to have the Property
and/or any other property which is now or later may be security for any Secured
Obligation marshalled upon any foreclosure of this Deed of Trust or on a
foreclosure of any other security for any of the Secured Obligations.
6.11. Exhibits. Exhibit A is incorporated into this Deed of Trust by this
reference.
6.12 Subordinate Deed of Trust. This Deed of Trust is junior and
subordinate to the Lease Agreement and the Purchase Agreement.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, Lessor has caused this Deed of Trust to be executed as
of the day and year first above written.
LEASE PLAN U.S.A., INC.,
a Georgia corporation
By: _____________________________
Name: _______________________
Title: ______________________
(ALL SIGNATURES MUST BE ACKNOWLEDGED)
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STATE OF CALIFORNIA )
)
COUNTY OF________________ )
On ___________ ___, 1997 before me, _______________________, a Notary
Public in and for the State of California, personally appeared
_______________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL]
____________________________________
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EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
ALL THAT CERTAIN REAL PROPERTY LOCATED IN THE COUNTY OF SANTA CLARA, CALIFORNIA,
DESCRIBED AS FOLLOWS:
APN: __________
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RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Thomas Y. Coleman, Esq.
Orrick, Herrington & Sutcliffe LLP
Old Federal Reserve Bank Building
400 Sansome Street
San Francisco, California 94111
- --------------------------------------------------------------------------------
CONSTRUCTION DEED OF TRUST
DATED AS OF NOVEMBER 12, 1997
BY
LEASE PLAN U.S.A., INC.,
AS TRUSTOR ("LESSOR")
TO
SANTA CLARA LAND TITLE COMPANY,
AS TRUSTEE
FOR THE BENEFIT OF
ABN AMRO BANK N.V., AS AGENT,
AS BENEFICIARY ("AGENT")
RELATING TO PROPERTY SITUATED IN:
SANTA CLARA COUNTY, CALIFORNIA
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EXHIBIT K
LESSOR SECURITY AGREEMENT
THIS LESSOR SECURITY AGREEMENT (this "Agreement" herein), dated as of
November 12, 1997, is executed by:
(1) LEASE PLAN U.S.A., INC., a Georgia corporation ("Lessor"),
in favor of
(2) ABN AMRO BANK N.V., as agent for the Participants under the
Participation Agreement referred to in Recital B below (in such capacity,
"Agent").
RECITALS
A. KLA-Tencor Corporation, a Delaware corporation ("Lessee"), has
requested Lessor and the financial institutions which are "Participants" under
the Participation Agreement referred to in Recital B below (such financial
institutions to be referred to collectively as the "Participants") to provide to
Lessee a certain lease facility. Pursuant to such facility:
(1) Lessor would (a) acquire certain property designated by Lessee
(either through purchase or lease), (b) lease to Lessee such property and
certain other property currently held by Lessor, (c) appoint Lessee as
Lessor's agent to make certain improvements to a portion of such property,
(d) make advances to finance such improvements and to pay certain related
expenses, and (e) grant to Lessee the right to purchase such property; and
(2) The Participants would participate in such lease facility by
(a) funding the purchase prices and other advances to be made by Lessor
and (b) acquiring participation interests in the rental and certain other
payments to be made by Lessee.
B. Pursuant to a Participation Agreement dated of even date herewith
(the "Participation Agreement") among Lessee, Lessor, the Participants and
Agent, Lessor and the Participants have agreed to provide such lease facility
upon the terms and subject to the conditions set forth therein, including,
without limitation, the execution and delivery of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
SECTION 1. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this Agreement or any
other Operative Document, each term set forth in Schedule 1.01 to the
Participation Agreement, when used in this Agreement or any other Operative
Document, shall have the respective meaning given to
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that term in such Schedule 1.01 or in the provision of this Agreement or other
document, instrument or agreement referenced in such Schedule 1.01. All terms
defined in the UCC shall have the respective meanings given to those terms in
the UCC.
1.02. Rules of Construction. Unless otherwise indicated in this Agreement
or any other Operative Document, the rules of construction set forth in Schedule
1.02 to the Participation Agreement shall apply to this Agreement and the other
Operative Documents.
SECTION 2. GRANT OF SECURITY INTEREST.
2.01. Grant. As security for the Lessor Obligations, Lessor hereby
irrevocably and unconditionally pledges and assigns to Agent, for the benefit of
the Participants and Agent, and grants to Agent, for the benefit of the
Participants and Agent, a security interest in all estate, right, title and
interest of Lessor, whether now owned or hereafter acquired, in and to the
following property (such estate, right, title and interest in such property
herein, collectively and severally, the "Lessor Collateral"):
(a) Operative Documents. The Participation Agreement, the
Construction Agency Agreement, the Purchase Agreement, the Lessee Security
Documents and all other Operative Documents (other than the Lease
Agreement); all exhibits, schedules and other attachments thereto; and all
documents, instruments or agreements issued or executed in replacement
thereof; each as amended, modified and supplemented from time to time and
in effect at any given time;
(b) Collateral. All Collateral for the Lessee Obligations under
the Operative Documents; and
(c) Proceeds. All proceeds of the foregoing (including, without
limitation, whatever is receivable or received when Lessor Collateral or
proceeds is sold, collected, exchanged, returned, substituted or otherwise
disposed of, whether such disposition is voluntary or involuntary,
including rights to payment and return premiums and insurance proceeds
under insurance with respect to any Lessor Collateral, and all rights to
payment with respect to any cause of action affecting or relating to the
Lessor Collateral).
SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF LESSOR.
3.01. Representations and Warranties. Lessor represents and warrants to
Agent and the Participants as follows:
(a) Lessor is the legal and beneficial owner of the Lessor
Collateral (or, in the case of after-acquired Lessor Collateral, at the
time Lessor acquires rights in the Lessor Collateral, will be the legal
and beneficial owner thereof).
(b) Lessor has not transferred to any other Person any of its
right, title or interest in the Lessor Collateral, whether by way of Lien
or otherwise.
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(c) Lessor's chief executive office is located at 180 Interstate
Parkway North, Atlanta, Georgia 30339.
3.02. Covenants. Lessor hereby covenants to Agent and the Participants as
follows:
(a) Lessor shall promptly procure, execute and deliver to Agent
all documents, instruments and agreements and perform all acts which are
necessary or desirable, or which Agent may request, to establish,
maintain, preserve, protect and perfect the Lessor Collateral, the Lien
granted to Agent therein and the first priority of such Lien or to enable
Agent to exercise and enforce its rights and remedies hereunder with
respect to any Lessor Collateral.
(b) Lessor shall not sell, transfer or assign any of its right,
title or interest in the Lessor Collateral to any Person (other than
Agent), whether by way of Lien or otherwise.
(c) Without prompt written notice to Agent, Lessor shall not
change Lessor's name or chief executive office.
SECTION 4. RIGHTS AND REMEDIES OF AGENT.
4.01. Authorized Action by Agent. Lessor hereby irrevocably appoints Agent
as its attorney-in-fact and agrees that Agent may perform (but Agent shall not
be obligated to and shall incur no liability to Lessor or any third party for
failure so to do) any act which Lessor is obligated by this Agreement to
perform, and to exercise such rights and powers as Lessor might exercise with
respect to the Lessor Collateral, including, without limitation, the right to
(a) collect by legal proceedings or otherwise and endorse, receive and receipt
for all dividends, interest, payments, proceeds and other sums and property now
or hereafter payable on or on account of the Lessor Collateral; (b) enter into
any extension, reorganization, deposit, merger, consolidation or other agreement
pertaining to, or deposit, surrender, accept, hold or apply other property in
exchange for the Lessor Collateral; (c) insure, process, preserve and enforce
the Lessor Collateral; (d) make any compromise or settlement, and take any
action it deems advisable, with respect to the Lessor Collateral; (e) pay any
Indebtedness of Lessor relating to the Lessor Collateral; and (f) execute UCC
financing statements. Lessor agrees that such care as Agent gives to the
safekeeping of its own property of like kind shall constitute reasonable care of
the Lessor Collateral when in Agent's possession; provided, however, that Agent
shall not be required to make any presentment, demand or protest, or give any
notice and need not take any action to preserve any rights against any prior
party or any other Person in connection with the Lessor Obligations or with
respect to the Lessor Collateral.
4.02. Other Rights and Remedies Upon Default. In addition to all other
rights and remedies granted to Agent by this Agreement and the other Operative
Documents, the UCC and other applicable Governmental Rules, Agent may, if Lessor
fails to perform any of the Lessor Obligations, exercise any one or more of the
following rights and remedies: (a) collect, receive, appropriate or realize upon
the Lessor Collateral or otherwise foreclose or enforce Agent's security
interests in any or all Lessor Collateral in any manner permitted by applicable
Governmental Rules or in this Security Agreement; (b) notify Lessee to make any
or all
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payments to be made by Lessee under the Operative Documents to Agent; (c) sell
or otherwise dispose of any or all Lessor Collateral at one or more public or
private sales, whether or not such Lessor Collateral is present at the place of
sale, for cash or credit or future delivery, on such terms and in such manner as
Agent may determine; (d) require Lessor to assemble the Lessor Collateral and
make it available to Agent at a place to be designated by Agent; and (e) prior
to the disposition of the Lessor Collateral, store, process, repair or
recondition any Lessor Collateral consisting of goods, perform any obligations
and enforce any rights of Lessor under any Operative Documents or otherwise
prepare and preserve Lessor Collateral for disposition in any manner and to the
extent Agent deems appropriate. In any case where notice of any sale or
disposition of any Lessor Collateral is required, Lessor hereby agrees that
thirty (30) days notice of such sale or disposition is reasonable.
SECTION 5. MISCELLANEOUS.
5.01. Notices. Except as otherwise specified herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Lessor or Agent under this Agreement shall be given as provided in Paragraph
7.01 of the Participation Agreement.
5.02. Waivers; Amendments. Any term, covenant, agreement or condition of
this Agreement may be amended or waived only as provided in the Participation
Agreement. No failure or delay by Agent in exercising any right hereunder shall
operate as a waiver thereof or of any other right nor shall any single or
partial exercise of any such right preclude any other further exercise thereof
or of any other right. Unless otherwise specified in any such waiver or consent,
a waiver or consent given hereunder shall be effective only in the specific
instance and for the specific purpose for which given.
5.03. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Lessor Parties and their permitted successors and
assigns; provided, however, that the Lessor Parties shall not sell, assign or
delegate their respective rights and obligations hereunder except as provided in
the Participation Agreement.
5.04. No Third Party Rights. Nothing expressed in or to be implied from
this Agreement is intended to give, or shall be construed to give, any Person,
other than the Lessor Parties and their permitted successors and assigns, any
benefit or legal or equitable right, remedy or claim under or by virtue of this
Agreement or under or by virtue of any provision herein.
5.05. Partial Invalidity. If at any time any provision of this Agreement
is or becomes illegal, invalid or unenforceable in any respect under the law or
any jurisdiction, neither the legality, validity or enforceability of the
remaining provisions of this Agreement nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
5.06. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without reference to
conflicts of law rules.
5.07. Counterparts. This Agreement may be executed in any number of
identical counterparts, any set of which signed by all the parties hereto shall
be deemed to constitute a complete, executed original for all purposes.
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274
IN WITNESS WHEREOF, Lessor has caused this Agreement to be executed as of
the day and year first above written.
LESSOR: LEASE PLAN U.S.A., INC.
By: _____________________________
Name: _______________________
Title: ______________________
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EXECUTION COPY
================================================================================
LESSOR SECURITY AGREEMENT
BY
LEASE PLAN U.S.A., INC.
IN FAVOR OF
ABN AMRO BANK N.V.,
AS AGENT
NOVEMBER 12, 1997
================================================================================
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EXHIBIT L
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT, dated as of the date set forth at the top of
Attachment 1 hereto, by and among:
(1) The party designated under item A of Attachment I hereto
as the Assignor Participant ("Assignor Participant"); and
(2) Each party designated under item B of Attachment I hereto
as an Assignee Participant (individually, an "Assignee Participant").
RECITALS
A. Assignor Participant is one of the "Participants" in a Participation
Agreement dated as of November 12, 1997, among KLA-Tencor Corporation
("Lessee"), Lease Plan U.S.A., Inc. ("Lessor"), Assignor Participant and the
other institutions parties thereto as "Participants" (collectively, the
"Participants") and ABN AMRO Bank N.V., as agent for the Participants (in such
capacity, "Agent"). (Such Participation Agreement, as amended, supplemented or
otherwise modified in accordance with its terms from time to time to be referred
to herein as the "Participation Agreement").
B. Assignor Participant wishes to sell, and each Assignee Participant
wishes to purchase, all or a portion of Assignor Participant's rights under the
Participation Agreement pursuant to Subparagraph 7.05(b) of the Participation
Agreement.
AGREEMENT
Now, therefore, the parties hereto hereby agree as follows:
1. Definitions. Except as otherwise defined in this Assignment
Agreement, all capitalized terms used herein and defined in the Participation
Agreement have the respective meanings given to those terms in the Participation
Agreement.
2. Sale and Assignment. Subject to the terms and conditions of this
Assignment Agreement, Assignor Participant hereby agrees to sell, assign and
delegate to each Assignee Participant and each Assignee Participant hereby
agrees to purchase, accept and assume the rights, obligations and duties of a
Participant under the Participation Agreement and the other Operative Documents
equal to the Tranche A Percentage, Tranche B Percentage, Tranche C Percentage
and Proportionate Share set forth under the captions "Tranche Percentages and
Proportionate Shares Assigned" opposite such Assignee Participant's name on Part
A of Attachment I hereto. Such sale, assignment and delegation shall become
effective on the date
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designated in Part C of Attachment I hereto (the "Assignment Effective Date"),
which date shall be, unless Agent shall otherwise consent, at least five (5)
Business Days after the date following the date counterparts of this Assignment
Agreement are delivered to Agent in accordance with Paragraph 3 hereof.
3. Assignment Effective Notice. Upon (a) receipt by Agent of five (5)
counterparts of this Assignment Agreement (to each of which is attached a fully
completed Attachment 1), each of which has been executed by Assignor Participant
and each Assignee Participant (and, to the extent required by clause (i) of
Subparagraph 7.05(b) of the Participation Agreement, by Lessor, Lessee and
Agent) and (b) payment to Agent of the registration and processing fee specified
in clause (iii) of Subparagraph 7.05(b) of the Participation Agreement, Agent
will transmit to Lessor, Lessee, Assignor Participant and each Assignee
Participant an Assignment Effective Notice substantially in the form of
Attachment 2 hereto, fully completed (an "Assignment Effective Notice").
4. Assignment Effective Date. At or before 12:00 noon (local time of
Assignor Participant) on the Assignment Effective Date, each Assignee
Participant shall pay to Assignor Participant, in immediately available or same
day funds, an amount equal to the purchase price, as agreed between Assignor
Participant and such Assignee Participant (the "Assignment Purchase Price"), for
the respective Tranche A Percentage, Tranche B Percentage, Tranche C Percentage
and Proportionate Share purchased by such Assignee Participant hereunder.
Effective upon receipt by Assignor Participant of the Assignment Purchase Price
payable by each Assignee Participant, the sale, assignment and delegation to
such Assignee Participant of such Proportionate Share as described in Paragraph
2 hereof shall become effective.
5. Payments After the Assignment Effective Date. Assignor Participant
and each Assignee Participant hereby agree that Agent shall, and hereby
authorize and direct Agent to, allocate amounts payable under the Participation
Agreement and the other Operative Documents as follows:
(a) All payments applied to reduce the Outstanding Lease Amount
after the Assignment Effective Date with respect to each Tranche A
Percentage, Tranche B Percentage, Tranche C Percentage and Proportionate
Share assigned to an Assignee Participant pursuant to this Assignment
Agreement shall be payable to such Assignee Participant.
(b) All Base Rent, interest, fees and other amounts accrued after
the Assignment Effective Date with respect to each Tranche A Percentage,
Tranche B Percentage, Tranche C Percentage and Proportionate Share
assigned to an Assignee Participant pursuant to this Assignment Agreement
shall be payable to such Assignee Participant.
Assignor Participant and each Assignee Participant shall make any separate
arrangements between themselves which they deem appropriate with respect to
payments between them of amounts paid under the Operative Documents on account
of the Tranche A Percentage, Tranche B Percentage, Tranche C Percentage and
Proportionate Share assigned to such Assignee Participant, and neither Agent nor
Lessee shall have any responsibility to effect or carry out such separate
arrangements.
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6. Delivery of Copies of Operative Documents. Concurrently with the
execution and delivery hereof, Assignor Participant will provide to each
Assignee Participant (if it is not already a party to the Participation
Agreement) conformed copies of all documents delivered to Assignor Participant
on or prior to the Closing Date in satisfaction of the conditions precedent set
forth in the Participation Agreement.
7. Further Assurances. Each of the parties to this Assignment Agreement
agrees that at any time and from time to time upon the written request of any
other party, it will execute and deliver such further documents and do such
further acts and things as such other party may reasonably request in order to
effect the purposes of this Assignment Agreement.
8. Further Representations, Warranties and Covenants. Assignor
Participant and each Assignee Participant further represent and warrant to and
covenant with each other, Lessor, Agent and the other Participants as follows:
(a) Other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned hereby free and
clear of any adverse claim, Assignor Participant makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the
Participation Agreement or the other Operative Documents or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of
the Participation Agreement or the other Operative Documents furnished or
the Collateral or any security interest therein.
(b) Assignor Participant makes no representation or warranty and
assumes no responsibility with respect to the financial condition of
Lessee or any of its obligations under the Participation Agreement or any
other Operative Documents.
(c) Each Assignee Participant confirms that it has received a copy
of the Participation Agreement and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to
enter into this Assignment Agreement.
(d) Each Assignee Participant will, independently and without
reliance upon Lessor, Agent, Assignor Participant or any other Participant
and based upon such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not
taking action under the Participation Agreement and the other Operative
Documents.
(e) Each Assignee Participant appoints and authorizes Agent to
take such action as Agent on its behalf and to exercise such powers under
the Participation Agreement and the other Operative Documents as Agent is
authorized to exercise by the terms thereof, together with such powers as
are reasonably incidental thereto, all in accordance with Section VI of
the Participation Agreement.
(f) Each Assignee Participant (i) affirms that each of the
representations and warranties set forth in Paragraph 4.03 of the
Participation Agreement is true and correct with respect to such
Participant and (ii) agrees that it will perform in accordance with
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their terms all of the obligations which by the terms of the Participation
Agreement and the other Operative Documents are required to be performed
by it as a Participant.
(g) Each Assignee Participant represents and warrants that, as of
the date hereof, it would not have any basis for demanding any payment
under Subparagraph 2.12(c) or Subparagraph 2.12(d) of the Participation
Agreement or, to its knowledge, under Subparagraph 2.13(a) of the
Participation Agreement.
(h) Part B of Attachment 1 hereto sets forth administrative
information with respect to each Assignee Participant.
9. Effect of this Assignment Agreement. On and after the Assignment
Effective Date, (a) each Assignee Participant shall be a Participant with a
Tranche A Percentage, Tranche B Percentage, Tranche C Percentage and
Proportionate Share as set forth under the caption "Tranche Percentages and
Proportionate Share After Assignment" opposite such Assignee Participant's name
in Part A of Attachment 1 hereto and shall have the rights, duties and
obligations of such a Participant under the Participation Agreement and the
other Operative Documents and (b) Assignor Participant shall be a Participant
with a Tranche A Percentage, Tranche B Percentage, Tranche C Percentage and
Proportionate Share as set forth under the caption "Tranche Percentages and
Proportionate Share After Assignment" opposite Assignor Participant's name in
Part A of Attachment 1 hereto and shall have the rights, duties and obligations
of such a Participant under the Participation Agreement and the other Operative
Documents, or, if the Proportionate Share of Assignor Participant has been
reduced to zero, Assignor Participant shall cease to be a Participant and shall
have no further obligation to fund any portion of any Advance.
10. Miscellaneous. This Assignment Agreement shall be governed by, and
construed in accordance with, the laws of the State of California. Paragraph
headings in this Assignment Agreement are for convenience of reference only and
are not part of the substance hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Assignment
Agreement to be executed by their respective duly authorized officers as of the
date set forth in Attachment 1 hereto.
______________________________, as
Assignor Participant
By: ________________________________
Name: __________________________
Title: _________________________
____________________________, as an
Assignee Participant
By: ________________________________
Name: __________________________
Title: _________________________
____________________________, as an
Assignee Participant
By: ________________________________
Name: __________________________
Title: _________________________
____________________________, as an
Assignee Participant
By: ________________________________
Name: __________________________
Title: _________________________
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CONSENTED TO AND ACKNOWLEDGED BY:
______________________________
as Lessee
By: ________________________________
Name: __________________________
Title: _________________________
______________________________,
as Agent
By: ________________________________
Name: __________________________
Title: _________________________
______________________________,
As Lessor
By: ________________________________
Name: __________________________
Title: _________________________
ACCEPTED FOR RECORDATION IN REGISTER:
______________________________,
As Agent
By: ________________________________
Name: __________________________
Title: _________________________
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ATTACHMENT 1
TO ASSIGNMENT AGREEMENT
PART A
Tranche Percentages and
Proportionate Shares Assigned
------------------------------------------------------------------------
Tranche A Tranche B Tranche C Proportionate
Percentage Percentage Percentage Share
---------- ---------- ---------- -------------
Assignor Participant:
_________ __. _______% __. _______% __. _______% __. _______%
_________ __. _______% __. _______% __. _______% __. _______%
_________ __. _______% __. _______% __. _______% __. _______%
Assignee Participants:
_________ __. _______% __. _______% __. _______% __. _______%
_________ __. _______% __. _______% __. _______% __. _______%
_________ __. _______% __. _______% __. _______% __. _______%
_________ __. _______% __. _______% __. _______% __. _______%
Tranche Percentages and
Proportionate Shares After Assignment
-------------------------------------------------------------------------------
Tranche A Tranche B Tranche C Proportionate
Percentage Percentage Percentage Share
---------- ---------- ---------- -------------
Assignor Participant:
_________ __. _______% __. _______% __. ________% __. ________%
_________ __. _______% __. _______% __. ________% __. ________%
_________ __. _______% __. _______% __. ________% __. ________%
Assignee Participants:
_________ __. _______% __. _______% __. ________% __. ________%
_________ __. _______% __. _______% __. ________% __. ________%
_________ __. _______% __. _______% __. ________% __. ________%
_________ __. _______% __. _______% __. ________% __. ________%
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PART B
[Assignee Participant]
- --------------------------------
Applicable Participating Office:
___________________________
Address for notices:
Telephone No: __________________
Telecopier No: _________________
Wiring Instructions:
[Assignee Participant]
- --------------------------------
Applicable Participating Office:
___________________________
Address for notices:
Telephone No: __________________
Telecopier No: _________________
Wiring Instructions:
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PART C
ASSIGNMENT EFFECTIVE DATE ________, ____
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ATTACHMENT 2
TO ASSIGNMENT AGREEMENT
FORM OF
ASSIGNMENT EFFECTIVE NOTICE
Reference is made to the Participation Agreement, dated as of November 12,
1997, among KLA-Tencor Corporation ("Lessee"), Lease Plan U.S.A., Inc.
("Lessor"), the financial institutions parties thereto as "Participants" (the
"Participants") and ABN AMRO Bank N.V., as agent for the Participants (in such
capacity, "Agent"). Agent hereby acknowledges receipt of five executed
counterparts of a completed Assignment Agreement, a copy of which is attached
hereto. [Note: Attach copy of Assignment Agreement.] Terms defined in such
Assignment Agreement are used herein as therein defined.
1. Pursuant to such Assignment Agreement, you are advised that the
Assignment Effective Date will be __________.
2. Pursuant to such Assignment Agreement, each Assignee Participant is
required to pay its Purchase Price to Assignor Participant at or before 12:00
Noon on the Assignment Effective Date in immediately available funds.
Very truly yours,
ABN AMRO Bank N.V.,
as Agent
By: _____________________________
Name: _______________________
Title: ______________________
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EXHIBIT M
TRACT 3 GROUND LEASE AGREEMENT
FIRST AMENDED AND RESTATED
GROUND LEASE AGREEMENT
THIS FIRST AMENDED AND RESTATED GROUND LEASE AGREEMENT (this "Ground
Lease" herein), dated as of November 12, 1997, is entered into by and between:
(1) KLA-TENCOR CORPORATION, a Delaware corporation ("Ground
Lessor"); and
(2) LEASE PLAN U.S.A., INC., a Georgia corporation ("Ground
Lessee").
RECITALS
A. Ground Lessor has requested Ground Lessee and the financial
institutions which are "Participants" under the Participation Agreement referred
to in Recital B below (such financial institutions to be referred to
collectively as the "Participants") to provide to Ground Lessor a certain lease
facility. Pursuant to such facility:
(1) Ground Lessee would (a) acquire certain property designated by
Ground Lessor (either through purchase or lease), (b) lease to Ground
Lessor such property and certain other property currently held by Ground
Lessee, (c) appoint Ground Lessor as Ground Lessee's agent to make certain
improvements to a portion of such property, (d) make advances to finance
such improvements and to pay certain related expenses, and (e) grant to
Ground Lessor the right to purchase such property; and
(2) The Participants would participate in such lease facility by
(a) funding the purchase prices and other advances to be made by Ground
Lessee and (b) acquiring participation interests in the rental and certain
other payments to be made by Ground Lessor.
B. Pursuant to a Participation Agreement dated of even date herewith
(the "Participation Agreement") among Ground Lessor, Ground Lessee, the
Participants and ABN AMRO Bank N.V., as agent for the Participants (in such
capacity, "Agent"), Ground Lessee and the Participants have agreed to provide
such lease facility upon the terms and subject to the conditions set forth
therein, including without limitation the execution and delivery of this Ground
Lease.
C. Ground Lessor is the owner of certain real property located in the
City of San Jose, County of Santa Clara, State of California, commonly know as
160 Rio Robles, San Jose, California, which real property (the "Land") is more
fully described in Exhibit A.
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D. Ground Lessor, formerly known as KLA Instruments Corporation, a
Delaware corporation, and BNP Leasing Corporation, a Delaware corporation,
previously entered into that certain Ground Lease Agreement effective as of June
5, 1995, with respect to the Land (the "Original Lease").
E. BNP Leasing Corporation, a Delaware corporation, has assigned its
interest under the Original Lease to Ground Lessee by that certain Assignment of
Ground Lease, dated as of the date hereof.
F. Ground Lessor and Ground Lessee now desire to amend and restate the
Original Lease in its entirety, as more fully set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the
mutual covenants herein contained, the parties hereto hereby agree as follows:
SECTION 10. INTERPRETATION.
10.01. Definitions. Unless otherwise indicated in this Ground Lease, each
term set forth in Schedule 1.01 to the Participation Agreement, when used in
this Ground Lease, shall have the respective meaning given to that term in such
Schedule 1.01 or in the provision of this Ground Lease or other document,
instrument or agreement referenced in such Schedule 1.01.
10.02. Rules of Construction. Unless otherwise indicated in this Ground
Lease, the rules of construction set forth in Schedule 1.02 to the Participation
Agreement shall apply to this Ground Lease.
SECTION 11. BASIC PROVISIONS.
11.01. Lease of the Property. Ground Lessor agrees to lease to Ground
Lessee and Ground Lessee agrees to lease from Ground Lessor the following
property, if any (the "Leased Property"), to the extent of Ground Lessor's
estate, right, title and interest therein, thereto or thereunder:
(a) All lots, pieces, tracts and parcels of the Land together with
such additional parcels of real property as may be added to the Land from
time to time during the term hereof;
(b) All Improvements now or hereafter located on the Land;
(c) All Appurtenant Rights belonging, relating or pertaining to
any of the Land or Improvements;
(d) All Related Goods, Related Permits and Related Agreements
related to any of the foregoing Land, Improvements or Appurtenant Rights;
and
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(e) All accessions and accretions to and replacements and
substitutions for the foregoing.
11.02. Term. The term of this Ground Lease (herein called the "Term")
shall commence on and include the effective date hereof and end on November 1,
2031. However, subject to the prior approval of any lender or other beneficiary
of a Leasehold Mortgage (defined below) (a "Leasehold Mortgagee"), Ground Lessee
shall have the right to terminate this Ground Lease by giving notice to Ground
Lessor stating that Ground Lessee unequivocally elects to terminate effective as
of a date specified in such notice which may be any date more than thirty days
after the notice and after the expiration or termination of the Lease Agreement
pursuant to its terms. Further, Ground Lessor shall have an option (the "Ground
Lessor's Termination Option") to terminate this Ground Lease on and subject to
the following terms and conditions:
(a) To exercise the Ground Lessor's Termination Option, Ground
Lessor must provide Ground Lessee with an unconditional notice thereof
(the "Ground Lessor's Termination Notice") which specifies a date (the
"Qualifying Termination Date"), which date shall coincide with Ground
Lessor or an Assignee Purchaser's purchase of the Leased Property pursuant
to Section 2 of the Purchase Agreement, as the effective date of the
termination of this Ground Lease and which sets forth Ground Lessor's
calculation of the Outstanding Lease Amount as of such date. Any notice
specifying or purporting to establish an effective date of termination
which is not a Qualifying Termination Date shall not be effective as a
Ground Lessor's Termination Notice hereunder. Any Ground Lessor's
Termination Notice will be irrevocable.
(b) After giving any Ground Lessor's Termination Notice, Ground
Lessor must on or before the effective date of the termination specified
therein, pay to Ground Lessee in good funds the Outstanding Lease Amount.
Ground Lessor's payment of the Outstanding Lease Amount shall be a
condition precedent to the effectiveness of any early termination of this
Ground Lease by Ground Lessor. Time is of the essence as to such payment.
(c) At any time after the Expiration Date of the Lease Agreement,
Ground Lessee may provide a notice to Ground Lessor (a "FOCB Notice")
explaining that, unless Ground Lessor provides a Ground Lessor's
Termination Notice within thirty days after the FOCB Notice is sent in
accordance with the notice provisions hereof, the Ground Lessor's
Termination Option will expire. Unless Ground Lessor does in fact provide
an effective Ground Lessor's Termination Notice within thirty days after
any such FOCB Notice is sent to Ground Lessor by Ground Lessee in
accordance with the notice provisions hereof, the Ground Lessor's
Termination Option will expire. Time is of the essence as to the giving of
any Ground Lessor's Termination Notice required to prevent an expiration
of the Ground Lessor's Termination Option; however, if during the thirty
day period specified above in this subparagraph Ground Lessor is delayed
in providing any Ground Lessor's Termination Notice because of any
automatic stay or similar restraint imposed in any bankruptcy or
insolvency proceedings wherein Ground Lessee is the debtor, then such
thirty day period will be extended by a time equal to such delay.
(d) Notwithstanding the foregoing, if Ground Lessor loses its
rights to acquire Ground Lessee's interest in the Leased Property under the
Purchase Agreement before the effective date of any termination of this
Ground Lease, and if Ground Lessor would not have lost such right but for
Ground Lessor's failure to cure a breach by Ground Lessor of the Purchase
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Agreement within any applicable grace period provided therein, then Ground
Lessor shall no longer have any right whatsoever to terminate this Ground
Lease pursuant to this Paragraph 2.02, and any prior Ground Lessor's
Termination Notice given by Ground Lessor shall become ineffective for
purposes of this Ground Lease.
11.03. Rent. Ground Lessee has paid to Ground Lessor the sum of Ten and
no/100 dollars ($10.00) as prepaid rent for the period beginning on the
effective date and ending on October 31, 2002. The receipt and sufficiency of
such prepaid rent is hereby acknowledged by Ground Lessor. On each anniversary
of the first Business Day of November, 2002 (the "Rent Commencement Date"),
Ground Lessee shall pay Ground Lessor an annual installment of rent in arrears
(herein called "Rent"), in currency that at the time of payment is legal tender
for public and private debts in the United States of America. Each such
installment of Rent shall equal the annual fair rental value of unimproved land
of equivalent size and location to the Land, without considering any value added
by the Improvements, as determined in accordance with Exhibit B (the "Fair
Rental Value").
11.04. Receipt and Application of Insurance and Condemnation Proceeds. All
insurance and condemnation proceeds payable with respect to any damage to or
taking of the Leased Property shall be payable to and become the property of the
Ground Lessee; provided, however, Ground Lessor shall be entitled to receive
condemnation proceeds awarded for the value of Ground Lessor's remainder
interest in the Land exclusive of the Improvements. Ground Lessee is authorized
to take all action necessary on behalf of both Ground Lessee and Ground Lessor
to collect insurance and condemnation proceeds.
11.05. No Lease Termination. Except as expressly provided herein, this
Ground Lease shall not terminate, nor shall Ground Lessor have any right to
terminate this Ground Lease nor shall the obligations of Ground Lessor under
this Ground Lease be excused, for any reason whatsoever, including without
limitation any of the following: (i) any damage to or the destruction of all or
any part of the Leased Property from whatever cause, (ii) the taking of the
Leased Property or any portion thereof by eminent domain or otherwise for any
reason, (iii) any default on the part of the Ground Lessee under this Ground
Lease or under any other agreement to which Ground Lessor and Ground Lessee are
parties, (iv) 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 Ground Lessor hereunder shall be
separate and independent of the covenants and agreements of Ground Lessee.
However, nothing in this Paragraph 2.05 shall be construed as a waiver by Ground
Lessor of any right Ground Lessor may have at law or in equity to recover
monetary damages for any default under this Ground Lease.
11.06. Purchase Agreement and Lease Agreement. Nothing contained in this
Ground Lease shall limit, modify or otherwise affect any of Ground Lessor's or
Ground Lessee's respective rights and obligations under the Purchase Agreement
or Lease Agreement, which rights and obligations are intended to be separate,
independent and in addition to, and not in lieu of, the obligations established
by this Ground Lease; provided, however, that if Ground Lessor exercises the
Ground Lessor's Termination Option, Ground Lessee shall have no further
obligations under the Purchase Agreement or the Lease Agreement. In the event of
any inconsistency between the terms and provisions of the Purchase Agreement or
Lease Agreement and the terms and provisions of this Ground Lease, the terms and
provisions of the Purchase Agreement or Lease Agreement (as the case may be)
shall control.
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11.07. Use of Leased Property. Subject to the encumbrances and other
matters affecting the Leased Property that are set forth in Exhibit C attached
hereto and made a part hereof (the "Permitted Encumbrances") and the terms
hereof, Ground Lessee may use and occupy the Leased Property for any lawful
purpose. If a use of the Leased Property by Ground Lessee for any lawful purpose
or any new Improvements or removal or modifications of Improvements proposed by
Ground Lessee would violate any Permitted Encumbrance unless Ground Lessor, as
an owner of adjacent property or otherwise, gave its consent or approval thereto
or agreed to join in a modification of such Permitted Encumbrance, then Ground
Lessor shall give such consent or approval or join in such modification.
Further, Ground Lessor's obligation under the preceding sentence shall be
binding upon any successor or assign of Ground Lessor with respect to the
Permitted Encumbrances. In any event, Ground Lessee may at any time during the
Term remove the Improvements from the Leased Property without the consent of
Ground Lessor and without obligation to compensate Ground Lessor or construct
other Improvements on the Land.
11.08. Assignment and Subletting. Ground Lessor's consent shall not be
required for any assignment or subletting by Ground Lessee.
11.09. Estoppel Certificate. Ground Lessor shall from time to time, within
ten days after receipt of written request by Ground Lessee, deliver a statement
in writing certifying:
(a) that this Ground Lease is unmodified and in full force and
effect (or if modified that this Ground Lease as so modified is in full
force and effect);
(b) that to the knowledge of Ground Lessor, Ground Lessee has not
previously assigned or hypothecated its rights or interests under this
Ground Lease, except as is described in such statement with as much
specificity as Ground Lessor is able to provide;
(c) the term of this Ground Lease and the Rent and any additional
charges;
(d) that Ground Lessee is not in default under any provision of
this Ground Lease (or if in default, the nature thereof in detail) and a
statement as to any outstanding obligations on the part of Ground Lessor
or Ground Lessee; and
(e) such other matters as are requested by Ground Lessee.
GROUND LESSOR'S FAILURE TO DELIVER SUCH STATEMENT WITHIN SUCH TIME SHALL BE
CONCLUSIVE UPON GROUND LESSEE (i) THAT THIS GROUND LEASE IS IN FULL FORCE AND
EFFECT, WITHOUT MODIFICATION EXCEPT AS MAY BE REPRESENTED BY GROUND LESSEE, (ii)
THAT THERE ARE NO UNCURED DEFAULTS IN GROUND LESSEE'S PERFORMANCE HEREUNDER.
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11.10. Leasehold Mortgages.
(a) By any mortgage, deed of trust, security agreement or
assignment executed by Ground Lessee to secure an obligation to repay
borrowed money or other voluntary obligations, which covers Ground
Lessee's leasehold estate hereunder or any part thereof or any rents or
other charges to be paid to Ground Lessee pursuant to any sublease (a
"Leasehold Mortgage"), Ground Lessee may encumber Ground Lessee's
leasehold estate in the Leased Property created by this Ground Lease, as
well as Ground Lessee's rights and interests in buildings, fixtures,
equipment and improvements situated thereon and rents, issues, profits,
revenues and other income to be derived by Ground Lessee therefrom.
However, so long as the Lease Agreement remains in effect, any Leasehold
Mortgage will be permitted hereunder only if permitted pursuant to the
Lease Agreement.
(b) Any Leasehold Mortgagee or other party, including any
corporation formed by a Leasehold Mortgagee, may become the legal owner
and holder of the leasehold estate created by this Ground Lease, and of
the improvements, equipment, fixtures and other property assigned as
additional security pursuant to a Leasehold Mortgage, by foreclosure of a
Leasehold Mortgage or as a result of the assignment or conveyance in lieu
of foreclosure. Further, any such Leasehold Mortgagee or other party may
itself, after becoming the legal owner and holder of the leasehold estate
created by this Ground Lease, or of any improvements, equipment, fixtures
and other property assigned as additional security pursuant to a Leasehold
Mortgage, convey or pledge the same without the consent of Ground Lessor.
(c) Ground Lessor shall serve notice of any default by Ground
Lessee hereunder upon any Leasehold Mortgagee. No notice of a default by
Ground Lessee shall be deemed effective until it is so served. Any
Leasehold Mortgagee shall have the right to correct or cure any such
default within the same period of time after receipt of such notice as is
given to Ground Lessee under this Ground Lease to correct or cure
defaults, plus an additional period of thirty days thereafter. Ground
Lessor will accept performance by any Leasehold Mortgagee of any covenant,
condition or agreement on Ground Lessee's part to be performed hereunder
with the same force and effect as though performed by Ground Lessee.
(d) If this Ground Lease should terminate by reason of a
disaffirmance or rejection of this Ground Lease by Ground Lessee or any
receiver, liquidator or trustee for the property of Ground Lessee, or by
any department of the city, state or federal government which had taken
possession of the business or property of Ground Lessee by reason of the
insolvency or alleged insolvency of Ground Lessee, then:
(i) Ground Lessor shall give notice thereof to each
Leasehold Mortgagee; and upon request of any Leasehold Mortgagee
made within sixty days after Ground Lessor has given such notice,
Ground Lessor shall enter into a new ground lease of the Leased
Property with such Leasehold Mortgagee for the remainder of the
Term, at the same Rent and on the same terms and conditions as
contained in this Ground Lease.
(ii) In connection with any such new ground lease, Ground
Lessor shall also convey to the Leasehold Mortgagee by quitclaim
deed any interest of Ground Lessor in and to the Improvements
included in the Leased Property.
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(iii) The estate of the Leasehold Mortgagee, as lessee under
the new lease, shall have priority equal to the estate of Ground
Lessee hereunder. That is, there shall be no charge, lien or burden
upon the Leased Property prior to or superior to the estate granted
by such new lease which was not prior to or superior to the estate
of Ground Lessee under this Ground Lease as of the date immediately
preceding the termination of this Ground Lease. To the extent that
the Lease Agreement and or the Purchase Agreement are in effect at
the time of execution of such new ground lease, such new ground
lease shall be made subject to the Lease Agreement and the Purchase
Agreement.
(iv) Notwithstanding the foregoing, if Ground Lessor shall
receive requests to enter into a new ground lease from more than one
Leasehold Mortgagee, Ground Lessor shall be required to enter into
only one new ground lease, and the new ground lease shall be to the
requesting Leasehold Mortgagee who holds the highest priority lien
or interest in the Ground Lessee's leasehold estate in the Land. If
the liens or security interests of two or more such requesting
Leasehold Mortgagees which shared the highest priority just prior to
the termination of this Ground Lease, the new ground lease shall
name all such Leasehold Mortgagees as co-tenants thereunder.
(e) If the Ground Lessee has agreed with any Leasehold Mortgagee
that such Leasehold Mortgagee's consent will be required to any
modification or early termination of this Ground Lease by Ground Lessee,
and if Ground Lessor has been notified of such agreement, such consent
will be required.
(f) No Leasehold Mortgagee will assume any liability under this
Ground Lease either by virtue of its Leasehold Mortgage or by any
subsequent receipt or collection of rents or profits generated from the
Leased Property, unless and until the Leasehold Mortgagee acquires Ground
Lessee's leasehold estate in the Leased Property at foreclosure or by deed
in lieu of foreclosure.
(g) Although the foregoing provisions concerning Leasehold
Mortgages and Leasehold Mortgagees will be self operative, Ground Lessor
agrees to include, in addition to the items specified in Paragraph 2.09,
confirmation of the foregoing in any statement provided to a Leasehold
Mortgagee or prospective Leasehold Mortgagee pursuant to Paragraph 2.09.
SECTION 12. OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS OF LESSOR. Ground
Lessor represents, warrants and covenants as follows:
12.01. Title. Ground Lessor holds good and marketable title to the Land,
free and clear of all liens and encumbrances, other than the Permitted
Encumbrances.
12.02. No Default or Violation. The execution, delivery and performance by
Ground Lessor of this Ground Lease does not and will not constitute a breach or
default under any other material agreement or contract to which Ground Lessor is
a party or by which Ground Lessor is bound or which affects the Leased Property,
and does not violate or contravene any law, order, decree, rule or regulation to
which Ground Lessor is subject, and such execution, delivery and performance by
Ground Lessor 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, Ground Lessor's property pursuant to the provisions of any of the
foregoing.
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12.03. No Suits. There are no judicial or administrative actions, suits,
proceedings or investigations pending or, to Ground Lessor's knowledge,
threatened that will adversely affect the Leased Property or the validity,
enforceability or priority of this Ground Lease, and Ground Lessor 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 Leased Property. No
condemnation or other like proceedings are pending or, to Ground Lessor's
knowledge, threatened against the Leased Property.
12.04. Enforceability. The execution, delivery and performance of this
Ground Lease are duly authorized and do not require the consent or approval of
any governmental body or other regulatory authority that has not heretofore been
obtained and are not in contravention of or in conflict with any applicable laws
or any term or provision of Ground Lessor's articles of incorporation or bylaws.
This Ground Lease is a valid, binding and legally enforceable obligation of
Ground Lessor 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.
12.05. Insurance and Casualty. In the event any of the Leased Property is
destroyed or damaged by fire, explosion, windstorm, hail or by any other
casualty against which insurance shall have been required hereunder, (i) Ground
Lessee may make proof of loss, (ii) each insurance company concerned is hereby
authorized and directed to make payment for such loss directly to Ground Lessee
for application as required by Paragraph 2.04, and (iii) Ground Lessee's consent
must be obtained for any settlement, adjustment or compromise of any claims for
loss, damage or destruction under any policy or policies of insurance.
12.06. Condemnation. All proceeds of condemnation awards or proceeds of
sale in lieu of condemnation with respect to the Leased Property and all
judgments, decrees and awards for injury or damage to the Leased Property shall
be paid to Ground Lessee and applied as provided in Paragraph 2.04 above. Ground
Lessee is hereby authorized, in the name of the Ground Lessor, to execute and
deliver valid acquittances for, and to appeal from, any such judgment, decree or
award concerning condemnation of any of the Leased Property. Ground Lessee shall
not be, in any event or circumstances, liable or responsible for failure to
collect, or to exercise diligence in the collection of, any such proceeds,
judgments, decrees or awards.
12.07. Further Assurances. Ground Lessor shall, on request of Ground
Lessee, (i) promptly correct any defect, error or omission which may be
discovered in the contents of this Ground Lease or in any other instrument
executed in connection herewith or in the execution or acknowledgment thereof;
(ii) execute, acknowledge, deliver and record or file such further instruments
and do such further acts as may be necessary, desirable or proper to carry out
more effectively the purposes of this Ground Lease and to subject to this Ground
Lease any property intended by the terms hereof to be covered hereby including
specifically, but without limitation, any renewals, additions, substitutions,
replacements or appurtenances to the Leased Property; (iii) execute,
acknowledge, deliver, procure and record or file any document or instrument
deemed advisable by Ground Lessee to protect its rights in and to the Leased
Property against the rights or interests of third persons; and (iv) provide such
certificates, documents, reports, information, affidavits and other instruments
and do such further acts as may be necessary, desirable or proper in the
reasonable determination of Ground Lessee to enable Ground Lessee or
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any Leasehold Mortgagee to comply with the requirements or requests of any
agency or authority having jurisdiction over them.
SECTION 13. EVENTS OF DEFAULT.
13.01. Definition of Event of Default. Each of the following events shall
be deemed to be an "Event of Default" by Ground Lessee under this Ground Lease:
(a) Ground Lessee shall fail to pay when due any installment of
Rent due hereunder and such failure shall continue for sixty days after
Ground Lessee receives written notice thereof.
(b) Ground Lessee shall fail to comply with any term, provision or
covenant of this Ground Lease (other than as described in the other
clauses of this Paragraph 4.01), and shall not cure such failure prior to
sixty days after written notice thereof is sent to Ground Lessee if such
failure is susceptible of cure within sixty (60) days, but if such failure
cannot with reasonable diligence be cured within such sixty day period,
and if Ground Lessee shall promptly have commenced to cure the same and
shall thereafter prosecute the curing thereof with reasonable diligence,
the period within which such failure may be cured shall be extended for
such further period as shall be necessary for the curing thereof with
reasonable diligence.
13.02. Remedy. Upon occurrence of an Event of Default which is not cured
within any applicable period expressly permitted by Paragraph 4.01, Ground
Lessor's sole and exclusive remedy shall be to sue Ground Lessee for the
collection of any amount due under this Ground Lease and to enjoin the
continuation of the Event of Default. Ground Lessor may not terminate this
Ground Lease or Ground Lessee's right to possession under this Ground Lease
except as expressly provided herein. Any judgment which Ground Lessor may obtain
against Ground Lessee for amounts due under this Ground Lease may be collected
only through resort of a judgment lien against Ground Lessee's interest in the
Leased Property. Ground Lessee shall have no personal liability for the payment
amounts due under this or for the performance of any obligations of Ground
Lessee under this Ground Lease.
SECTION 14. QUIET ENJOYMENT. Neither Ground Lessor nor any third party lawfully
claiming any right or interest in the Leased Property shall during the Term
disturb Ground Lessee's peaceable and quiet enjoyment of the Leased Property;
however, such enjoyment shall be subject to the terms, provisions, covenants,
agreements and conditions of this Ground Lease and the Permitted Encumbrances,
to which this Ground Lease is subject and subordinate as hereinabove set forth.
SECTION 15. OPTION TO PURCHASE. Subject to the terms and conditions set forth in
Exhibit D, including the condition specified therein that Ground Lessor shall
have breached the Purchase Agreement and failed to cure such breach within any
time for cure expressly provided in the Purchase Agreement, Ground Lessee (and
any assignee of Ground Lessee's entire interest in the Leased Property, but not
any subtenant or assignee of a lesser interest) shall have the option to
purchase the Ground Lessor's interest in the Leased Property.
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SECTION 16. MISCELLANEOUS.
16.01. Notices. Each provision of this Ground Lease, or of any applicable
laws with reference to the sending, mailing or delivery of any notice or with
reference to the making of any payment by Ground Lessee to Ground Lessor, shall
be deemed to be complied with when and if the following steps are taken:
(a) All Rent required to be paid by Ground Lessee to Ground Lessor
hereunder shall be paid to Ground Lessor in accordance with any reasonable
written instruction provided from time to time by Ground Lessor to Ground
Lessee, which may include payment by wire transfer.
(b) Except as otherwise specified herein, all notices, requests,
demands, consents, instructions or other communications to or upon Ground
Lessee or Ground Lessor under this Ground Lease shall be given to Ground
Lessor and Ground Lessee as provided in Subparagraph 2.02(c) and Paragraph
7.01 of the Participation Agreement.
16.02. Severability. If any term or provision of this Ground Lease 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 Ground
Lease, 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.
16.03. No Merger. There shall be no merger of this Ground Lease or of the
leasehold estate hereby created with the fee or any other estate in the Leased
Property or any part thereof by reason of the fact that the same person may
acquire or hold, directly or indirectly, this Ground Lease or the leasehold
estate hereby created or any interest in this Ground Lease or in such leasehold
estate as well as the fee or any other estate in the Leased Property or any
interest in such fee or other estate, unless all parties with an interest in the
Leased Property that would be adversely affected by any such merger specifically
agree in writing that such a merger shall occur.
16.04. Entire Agreement. This Ground Lease, the agreements referred to
herein, and the instruments referred to therein supersede any prior negotiations
and agreements between the parties concerning the Leased Property and no
amendment or modification of this Ground Lease shall be binding or valid unless
expressed in a writing executed by both parties hereto.
16.05. Binding Effect. All of the covenants, agreements, terms and
conditions to be observed and performed by the parties hereto shall be
applicable to and binding upon their respective successors and assigns.
16.06. Governing Law. This Ground Lease shall be governed by and construed
in accordance with the laws of the State of California.
16.07. Waiver of a Jury Trail. LESSOR AND LESSEE EACH HEREBY WAIVES ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS GROUND LEASE OR ANY OTHER DOCUMENT OR DEALINGS BETWEEN THEM
RELATING TO THIS GROUND LEASE OR THE LEASED PROPERTY. The scope of this waiver
is intended to be all-encompassing of
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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. Ground Lessor and Ground Lessee 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 Ground Lease and the
other documents referred to herein and that each will continue to rely on the
waiver in their related future dealings. Ground Lessee and Ground Lessor each
further warrants and represents that it has reviewed this waiver with its legal
counsel, and that it knowingly and voluntarily waives its jury trial rights
following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING
THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS GROUND LEASE OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS
GROUND LEASE OR THE LEASED PROPERTY. In the event of litigation, this Ground
Lease may be filed as a written consent to a trial by the court.
16.08. Memorandum of Lease. Ground Lessor and Ground Lessee shall execute
a memorandum of this Ground Lease in recordable form which shall be filed in the
real property records of Santa Clara County, California.
16.09. Counterparts. This Agreement may be executed in any number of
identical counterparts, any set of which signed by all the parties hereto shall
be deemed to constitute a complete, executed original for all purposes.
[The signature page follows.]
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IN WITNESS WHEREOF, Ground Lessee and Ground Lessor have caused this
Ground Lease to be executed as of the day and year first above written.
GROUND LESSOR: KLA-TENCOR CORPORATION
By:______________________________________
Name:_________________________________
Title:________________________________
GROUND LESSEE: LEASE PLAN U.S.A., INC.
By:______________________________________
Name:_________________________________
Title:________________________________
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EXHIBIT A
LAND
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EXHIBIT B
DETERMINATION OF FAIR RENTAL VALUE
Each annual installment of Rent will equal the Fair Rental Value as of the
Rent Commencement Date, unless reduced to a lesser amount equal to the Fair
Rental Value on a subsequent date selected by Ground Lessee. By notice to Ground
Lessor, Ground Lessee may from time to time (but no more often than once in any
12 month period), designate a new date within sixty days of the date of such
notice as an alternative to the Rent Commencement Date for purposes of
determining Fair Rental Value, in which case installments of Rent due after such
alternative date shall equal the Fair Rental Value on such alternative date
unless and until another alternative date is later designated. However, in no
event will Rent ever be increased above the Fair Rental Value on the Rent
Commencement Date.
If Ground Lessor and Ground Lessee have not agreed upon Fair Rental Value
as of the Rent Commencement Date within 180 days after the Rent Commencement
Date, or if they do not agree upon Fair Rental Value as of an alternative date
within thirty days from the date of a notice from Ground Lessee designating such
alternative date as described above, then Fair Rental Value will be determined
as follows (but, again, in no event shall Rent be adjusted above the Fair Rental
Value on the Rent Commencement Date):
(a) Ground Lessor and Ground Lessee shall each appoint a real
estate appraiser who is familiar with rental values for properties in the
vicinity of the Land. Each party will make the appointment no later than
10 days after receipt of notice from the other party that the appraisal
process described in this paragraph has been invoked. The agreement of the
two appraisers as to Fair Rental Value will be binding upon Ground Lessor
and Ground Lessee. If the two appraisers cannot agree upon the Fair Rental
Value within 10 days following their appointment, they shall within
another 10 days agree upon a third real estate appraiser. Immediately
thereafter, each of the first two appraisers will submit his best estimate
of the appropriate Fair Rental Value (together with a written report
supporting such estimate) to the third appraiser and the third appraiser
will choose between the two estimates. The estimate of Fair Rental Value
chosen by the third appraiser as the closest to the prevailing monthly
fair rental value will be binding upon Ground Lessor and Ground Lessee.
Notification in writing of this estimate shall be made to Ground Lessor
and Ground Lessee within 15 days following the selection of the third
appraiser.
(b) If appraisers must be selected under the procedure set out
above and either Ground Lessee or Ground Lessor fails to appoint an
appraiser or fails to notify the other party of such appointment within 7
days after receipt of notice that the prescribed time for appointing the
appraisers has passed, then the other party's appraiser will determine the
Fair Rental Value. All appraisers selected for the appraisal process set
out in this paragraph will be disinterested, reputable, qualified real
estate appraisers with the designation of MAI or equivalent and with at
least 5 years experience in appraising properties comparable to the Land.
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(c) If a third appraiser must be chosen under the procedure set
out above, he or she will be chosen on the basis of objectivity and
competence, not on the basis of his relationship with the other appraisers
or the parties to this Ground Lease, and the first two appraisers will be
so advised. Although the first two appraisers will be instructed to
attempt in good faith to agree upon the third appraiser, if for any reason
they cannot agree within the prescribed time, either Ground Lessor and
Ground Lessee may require the first two appraisers to immediately submit
its top choice for the third appraiser to the then highest ranking officer
of the San Francisco Bar Association who will agree to help and who has no
attorney/client or other significant relationship to either Ground Lessor
or Ground Lessee. Such officer will have complete discretion to select the
most objective and competent third appraiser from between the choice of
each of the first two appraisers, and will do so within 20 days after such
choices are submitted to him.
(d) Either Ground Lessor or Ground Lessee may notify the appraiser
selected by the other party to demand the submission of an estimate of
Fair Rental Value or a choice of a third appraiser as required under the
procedure described above; and if the submission of such an estimate or
choice is required but the other party's appraiser fails to comply with
the demand within 15 days after receipt of such notice, then the Fair
Rental Value or choice of the third appraiser, as the case may be,
selected by the other appraiser (i.e., the notifying party's appraiser)
will be binding upon Ground Lessor and Ground Lessee.
(e) Ground Lessor and Ground Lessee shall each bear the expense of
the appraiser appointed by it, and the expense of the third appraiser and
of any officer of the San Francisco Bar Association who participates in
the appraisal process described above will be shared equally by Ground
Lessor and Ground Lessee.
Once determined in accordance with this Exhibit, the annual Rent shall
remain the same until Ground Lessee elects to change Rent to the Fair Rental
Value as of the date other than the Rent Commencement Date as provided above.
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EXHIBIT C
PERMITTED ENCUMBRANCES
M-16
302
EXHIBIT D
CONTINGENT PURCHASE OPTION
Subject to the terms of this Exhibit D, Ground Lessee shall have an option
(the "Option") to buy the Ground Lessor's interest in the Leased Property at any
time during the term of this Ground Lease after (but only after) any breach by
Ground Lessor under the Purchase Agreement, provided Ground Lessor does not cure
the breach within any time permitted for cure by the express provisions of the
Purchase Agreement, for a purchase price (the "Option Price") to Ground Lessor
equal to fair market value.
For the purposes of this Exhibit, "fair market value" means (and all
appraisers and other persons involved in the determination of the Option Price
will be so advised) the price that would be agreed upon between a willing buyer,
but under no compulsion to buy, and a willing seller, but under no compulsion to
sell, for unimproved land comparable in size and location to the Land, exclusive
of any Improvements, at the time of Ground Lessee's exercise of the Option and
taking into consideration the condition of the Land and the encumbrances
affecting the title to the Land at the time of the exercise of the Option.
If Ground Lessee exercises the Option, which Ground Lessee may do by
notifying Ground Lessor that Ground Lessee has elected to buy Ground Lessor's
interest in the Leased Property as provided herein, then:
(a) Upon Ground Lessee's tender of the Option Price to Ground
Lessor, Ground Lessor will convey good and marketable title to the fee
estate in the Leased Property to Ground Lessee by general warranty deed
subject only to the Permitted Encumbrances and, to the extent still in
force, the Lease Agreement and the Purchase Agreement.
(b) Ground Lessee's obligation to close the purchase shall be
subject to the following terms and conditions, all of which are for the
benefit of Ground Lessee: (1) Ground Lessee shall have been furnished with
evidence satisfactory to Ground Lessee that Ground Lessor can convey title
as required by the preceding subparagraph; (2) nothing shall have occurred
or been discovered after Ground Lessee exercised the Option that could
significantly and adversely affect title to the Leased Property or the
Ground Lessee's use thereof, (3) all of the representations of Ground
Lessor in this Ground Lease shall continue to be true as if made effective
on the date of the closing, and with respect to any such representations
which may be limited to the knowledge of Ground Lessor or any of Ground
Lessor's representatives, would continue to be true on the date of the
closing if all relevant facts and circumstances were known to Ground
Lessor and such representatives, and (4) Ground Lessee shall have been
tendered the deed and other documents which are described in this Exhibit
D as documents to be delivered to Ground Lessee at the closing of Ground
Lessee's purchase.
(c) Closing of the purchase will be scheduled on the first
Business Day following thirty days after the Option Price is established
in accordance with the terms and conditions of this Exhibit D, and prior
to closing Ground Lessee's occupancy of the Leased Property shall continue
to be subject to the terms and conditions of this Ground Lease, including
the terms setting forth Ground Lessee's obligation to pay Rent. Closing
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shall take place at the offices of any title insurance company reasonably
selected by Ground Lessee to insure title under the title insurance policy
described below.
(d) Any transfer taxes or notices or registrations required by law
in connection with the sale contemplated by this Exhibit D will be the
responsibility of Ground Lessor.
(e) Ground Lessor will deliver a certificate of nonforeign status
to Ground Lessee at closing as needed to comply with the provisions of the
Foreign Investors Real Property Tax Act (FIRPTA) or any comparable
federal, state or local law in effect at the time.
(f) Ground Lessor will also pay for and deliver to Ground Lessee
at the closing an owner's title insurance policy in the full amount of the
Option Price, issued by a title insurance company designated by Ground
Lessee (or written confirmation from the title company that it is then
prepared to issue such a policy), and subject only to standard printed
exceptions which the title insurance company refuses to delete or modify
in a manner acceptable to Ground Lessee and to Permitted Encumbrances.
(g) Ground Lessor shall also deliver at the closing all other
documents or things reasonably required to be delivered to Ground Lessee
or by the title insurance company to evidence Ground Lessor's ability to
transfer the Leased Property to Ground Lessee.
If Ground Lessor and Ground Lessee do not otherwise agree upon the amount
of the Option Price within 20 days after Ground Lessee exercises the Option, the
Option Price shall be determined in accordance with the following procedure:
(i) Ground Lessor and Ground Lessee shall each appoint a
real estate appraiser who is familiar with properties in the
vicinity of the Land. Each party will make the appointment no later
than 10 days after receipt of notice from the other party that the
appraisal process described in this paragraph has been invoked. The
agreement of the two appraisers as to the Option Price will be
binding upon Ground Lessor and Ground Lessee. If the two appraisers
cannot agree upon the Option Price within 10 days following their
appointment, they shall within another 10 days agree upon a third
real estate appraiser. Immediately thereafter, each of the first two
appraisers will submit his best estimate of the appropriate Option
Price (together with a written report supporting such estimate) to
the third appraiser and the third appraiser will choose between the
two estimates. The estimate of Option Price chosen by the third
appraiser as the closest to the prevailing monthly fair market value
will be binding upon Ground Lessor and Ground Lessee. Notification
in writing of the Option Price shall be made to Ground Lessor and
Ground Lessee within 15 days following the selection of the third
appraiser.
(ii) If appraisers must be selected under the procedure set
out above and either Ground Lessee or Ground Lessor fails to appoint
an appraiser or fails to notify the other party of such appointment
within 7 days after receipt of notice that the prescribed time for
appointing the appraisers has passed, then the other
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party's appraiser will determine the Option Price. All of the
appraisers selected for the appraisal process set out in this
paragraph will be disinterested, reputable, qualified real estate
appraisers with the designation of MAI or equivalent and with at
least 5 years experience in appraising properties comparable to the
Land.
(iii) If a third appraiser must be chosen under the procedure
set out above, he will be chosen on the basis of objectivity and
competence, not on the basis of his relationship with the other
appraisers or the parties to this Ground Lease, and the first two
appraisers will be so advised. Although the first two appraisers
will be instructed to attempt in good faith to agree upon the third
appraiser, if for any reason they cannot agree within the prescribed
time, either Ground Lessor and Ground Lessee may require the first
two appraisers to immediately submit its top choice for the third
appraiser to the then highest ranking officer of the San Francisco
Bar Association who will agree to help and who has no
attorney/client or other significant relationship to either Ground
Lessor or Ground Lessee. Such officer will have complete discretion
to select the most objective and competent third appraiser from
between the choice of each of the first two appraisers, and will do
so within 10 days after such choices are submitted to him.
(iv) Either Ground Lessor or Ground Lessee may notify the
appraiser selected by the other party to demand the submission of an
estimate of Option Price or a choice of third appraiser as required
under the procedure described above; and if the submission of such
an estimate or choice is required but the other party's appraiser
fails to comply with the demand within 15 days after receipt of such
notice, then the Option Price or choice of third appraiser, as the
case may be, selected by the other appraiser (i.e., the notifying
party's appraiser) will be binding upon Ground Lessor and Ground
Lessee.
(v) Ground Lessor and Ground Lessee shall each bear the
expense of the appraiser appointed by it, and the expense of the
third appraiser and of any officer of the San Francisco Bar
Association who participates in the appraisal process described
above will be shared equally by Ground Lessor and Ground Lessee.
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SECTION 1 INTERPRETATION.................................................................................2
1.01. Definitions....................................................................................2
1.02. Rules of Construction..........................................................................2
SECTION 2. BASIC PROVISIONS...............................................................................2
2.01. Lease of the Property..........................................................................2
2.02. Term...........................................................................................3
2.03. Rent...........................................................................................4
2.04. Receipt and Application of Insurance and Condemnation Proceeds.................................4
2.05. No Lease Termination...........................................................................4
2.06. Purchase Agreement and Lease Agreement.........................................................4
2.07. Use of Leased Property.........................................................................5
2.08. Assignment and Subletting......................................................................5
2.09. Estoppel Certificate...........................................................................5
2.10. Leasehold Mortgages............................................................................6
SECTION 3. OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS OF LESSOR......................................7
3.01. Title..........................................................................................7
3.02. No Default or Violation........................................................................7
3.03. No Suits.......................................................................................8
3.04. Enforceability.................................................................................8
3.05. Insurance and Casualty.........................................................................8
3.06. Condemnation...................................................................................8
3.07. Further Assurances.............................................................................8
SECTION 4. EVENTS OF DEFAULT..............................................................................9
4.01. Definition of Event of Default.................................................................9
4.02. Remedy.........................................................................................9
4.03. Quiet Enjoyment................................................................................9
4.04. Option to Purchase............................................................................10
SECTION 5. MISCELLANEOUS.................................................................................10
5.01. Notices.......................................................................................10
5.02. Severability..................................................................................10
5.03. No Merger.....................................................................................10
5.04. Entire Agreement..............................................................................10
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5.05. Binding Effect................................................................................11
5.06. Governing Law.................................................................................11
5.07. Waiver of a Jury Trail........................................................................11
5.08. Memorandum of Lease...........................................................................11
5.09. Counterparts..................................................................................11
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
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EXECUTION COPY
================================================================================
FIRST AMENDED AND RESTATED
GROUND LEASE AGREEMENT
BY
KLA-TENCOR, CORPORATION,
AS GROUND LESSEE
AND
LEASE PLAN U.S.A., INC.,
AS GROUND LESSOR
EFFECTIVE AS OF NOVEMBER 12, 1997
================================================================================
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EXECUTION COPY
================================================================================
PARTICIPATION AGREEMENT
AMONG
KLA-TENCOR CORPORATION
AND
LEASE PLAN U.S.A., INC.
AND
THE PARTICIPANTS NAMED HEREIN
AND
ABN AMRO BANK N.V.,
AS AGENT FOR THE PARTICIPANTS
AND
BANQUE NATIONALE DE PARIS,
AS CO-AGENT
NOVEMBER 12, 1997
================================================================================
309
SCHEDULES
I Participants
II Pricing Grid
1.01 Definitions
1.02 Rules of Construction
3.01 Conditions Precedent to Initial Acquisition Advances
3.02 Conditions Precedent to the Tract 4 Acquisition Advance
4.01(g) Litigation
4.01(q) Subsidiaries
4.01(s) Individual Property Representations
EXHIBITS
A Land
B Lease Agreement
C Purchase Agreement
D Construction Agency Agreement
E Acquisition Request
F Improvement/Expense Advance Request
G(1) Commitment Extension Request
G(2) Lease Extension Request
H Assignment of Construction Agreements
I Assignment of Lease
J Lessor Deed of Trust
K Lessor Security Agreement
L Assignment Agreement
M Tract 3 Ground Lease Agreement
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TABLE OF CONTENTS
PAGE
SECTION 1. INTERPRETATION.................................................................................3
1.01. Definitions....................................................................................3
1.02. Rules of Construction..........................................................................3
SECTION 2. LEASE FACILITIES...............................................................................3
2.01. Acquisition, Lease, Amount Limitations, Etc....................................................3
2.02. Participation Agreement........................................................................6
2.03. Advance Requests...............................................................................7
2.04. Fees...........................................................................................8
2.05. Funding of Advances............................................................................9
2.06. Sharing of Payments...........................................................................10
2.07. Other Payment Terms...........................................................................12
2.08. Commitment Reductions.........................................................................13
2.09. Extensions....................................................................................14
2.10. Nature of the Transactions....................................................................15
2.11. Security......................................................................................16
2.12. Change of Circumstances.......................................................................17
2.13. Taxes on Payments.............................................................................20
2.14. Funding Loss Indemnification..................................................................22
2.15. Replacement of Participants...................................................................22
SECTION 3. CONDITIONS PRECEDENT..........................................................................23
3.01. Initial Acquisition Advances..................................................................23
3.02. Tract 4 Acquisition Advance...................................................................23
3.03. Improvement/Expense Advances..................................................................23
3.04. Other Conditions Precedent....................................................................23
3.05. Covenant to Deliver...........................................................................23
SECTION 4. REPRESENTATIONS AND WARRANTIES................................................................24
4.01. Lessee's Representations and Warranties.......................................................24
4.02. Lessor's Representations and Warranties.......................................................29
4.03. Participants' Representations and Warranties..................................................30
SECTION 5. COVENANTS.....................................................................................31
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TABLE OF CONTENTS
(continued)
PAGE
5.01. Lessee's Affirmative Covenants................................................................31
5.02. Lessee's Negative Covenants...................................................................34
5.03. Lessee's Financial Covenants..................................................................40
5.04. Lessor's Covenants............................................................................41
5.05. Participants' Covenants.......................................................................41
SECTION 6. LESSOR, AGENT AND THEIR RELATIONS WITH PARTICIPANTS...........................................42
6.01. Appointment of Agent..........................................................................42
6.02. Powers and Immunities.........................................................................42
6.03. Reliance......................................................................................42
6.04. Defaults......................................................................................43
6.05. Indemnification...............................................................................43
6.06. Non-Reliance..................................................................................43
6.07. Resignation or Removal of Agent...............................................................44
6.08. Authorization.................................................................................44
6.09. Lessor and Agent in their Individual Capacities...............................................44
SECTION 7. MISCELLANEOUS.................................................................................44
7.01. Notices.......................................................................................44
7.02. Expenses......................................................................................46
7.03. Indemnification...............................................................................46
7.04. Waivers; Amendments...........................................................................47
7.05. Successors and Assigns........................................................................47
7.06. Setoff........................................................................................51
7.07. No Third Party Rights.........................................................................51
7.08. Partial Invalidity............................................................................51
7.09. JURY TRIAL....................................................................................52
7.10. Counterparts..................................................................................52
7.11. No Joint Venture, Etc.........................................................................52
7.12. Usury Savings Clause..........................................................................52
7.13. Confidentiality...............................................................................52
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CONSTRUCTION AGENCY AGREEMENT
THIS CONSTRUCTION AGENCY AGREEMENT (this "Agreement" herein), dated
as of November 12, 1997 is entered into by and between:
(1) KLA-TENCOR CORPORATION, a Delaware corporation
("Lessee"); and
(2) LEASE PLAN U.S.A., INC., a Georgia corporation
("Lessor").
RECITALS
A. Lessee has requested Lessor and the financial institutions which
are "Participants" under the Participation Agreement referred to in Recital B
below (such financial institutions to be referred to collectively as the
"Participants") to provide to Lessee a certain lease facility. Pursuant to such
facility:
(1) Lessor would (a) acquire certain property designated by
Lessee (either through purchase or lease), (b) lease to Lessee such
property and certain other property currently held by Lessor, (c)
appoint Lessee as Lessor's agent to make certain improvements to a
portion of such property, (d) make advances to finance such
improvements and to pay certain related expenses, and (e) grant to
Lessee the right to purchase such property; and
(2) The Participants would participate in such lease
facility by (a) funding the purchase prices and other advances to be
made by Lessor and (b) acquiring participation interests in the
rental and certain other payments to be made by Lessee.
B. Pursuant to a Participation Agreement dated of even date herewith
(the "Participation Agreement") among Lessee, Lessor, the Participants and ABN
AMRO Bank N.V., as agent for the Participants (in such capacity, "Agent"),
Lessor and the Participants have agreed to provide such lease facility upon the
terms and subject to the conditions set forth therein, including without
limitation the execution and delivery of this Agreement setting forth the terms
of Lessee's construction obligations.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
313
SECTION 1. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this Agreement or
any other Operative Document, each term set forth in Schedule 1.01 to the
Participation Agreement, when used in this Agreement or any other Operative
Document, shall have the respective meaning given to that term in such Schedule
1.01 or in the provision of this Agreement or other document, instrument or
agreement referenced in such Schedule 1.01.
1.02. Rules of Construction. Unless otherwise indicated in this
Agreement or any other Operative Document, the rules of construction set forth
in Schedule 1.02 to the Participation Agreement shall apply to this Agreement
and the other Operative Documents.
SECTION 2. APPOINTMENT; AUTHORITY.
2.01. Appointment. Lessor hereby appoints Lessee and Lessee hereby
agrees to act as Lessor's agent for the construction of the New Improvements to
the Tract 1 Property, the Tract 3 Property, the Tract 4 Property and the Tract 5
Property.
2.02. Scope of Authority. Lessee shall have the authority to perform
all acts expressly delegated to or undertaken by Lessee under this Agreement and
all other acts reasonably necessary to complete the construction of the New
Improvements in accordance with the Plans and Specifications, this Agreement,
the other Operative Documents, all applicable Governmental Rules and all
applicable Insurance Requirements; provided, however, that no Lessor Party shall
have any obligation to pay any fees, costs or expenses related to such
construction (except to the extent of Lessor's obligation to make, and the
Participants' obligations to fund, Advances pursuant to the Participation
Agreement) and Lessee shall have no authority to, and shall not, enter into any
agreement which would, directly or indirectly, require any Lessor Party to pay
any such fees, costs or expenses or otherwise impose upon any Lessor Party any
liability or obligation. Subject to the terms and conditions of this Agreement
and the other Operative Documents, Lessee shall have sole management and control
over the construction means, methods, sequences and procedures with respect to
the construction of the New Improvements.
2.03. Delegation of Duties. Lessee may employ such architects,
engineers, contractors, consultants, agents, employees and other Persons as
Lessee determines are necessary or appropriate to construct the New Improvements
and perform its other obligations and duties hereunder and may delegate to such
Persons any or all of such obligations and duties; provided, however, that no
such employment or delegation shall limit or reduce in any way Lessee's
obligations and duties under this Agreement.
SECTION 3. LESSEE'S OBLIGATIONS AND DUTIES.
3.01. Plans and Specifications. Lessee shall deliver to Lessor, for
approval by Lessor and Agent, the Plans and Specifications for all new
improvements it elects to make to each Tract of Property. Once any Plans and
Specifications for any Tract of Property are so delivered and
2
314
approved by Lessor and Agent, Lessee shall not agree to or permit any revision,
amendment, supplementation or other modification to such Plans and
Specifications without the written consent of Lessor if such revision,
amendment, supplementation or modification (either alone or together with all
prior revisions, amendments, supplementations and modifications to all Plans and
Specifications for all of the Tracts of Property) is reasonably likely to:
(a) Cause the Acquisition Prices plus all other costs and
expenses of acquiring all of the Tracts of Property and constructing
all of the New Improvements to all the Tracts of Property in
accordance with this Agreement (including all Permitted Improvement
Costs and Permitted Transaction Expenses paid or to be paid with
Advances) to exceed the lesser of (i) the Total Commitment and (ii)
the sum of the most recent Expiration Date Appraisals for all of the
Tracts of Property (or, in the case of any Tract of Property for
which Lessee does not deliver an Expiration Date Appraisal, the
Closing Date Appraisal therefor) ;
(b) Make it difficult or impossible to Complete the
construction of all the New Improvements to such Tract of Property in
accordance with this Agreement on or prior to the Outside Completion
Date; or
(c) Cause the Fair Market Value of such Tract of Property
to be less than the most recent Expiration Date Appraisal for such
Tract of Property (or, in the case of any Tract of Property for which
Lessee does not deliver an Expiration Date Appraisal, the Closing
Date Appraisal therefor) or otherwise decrease in any material
amount.
Lessee shall notify Lessor promptly in writing of any revision, amendment,
supplementation or other modification to the Plans and Specifications.
3.02. Construction Agreements. Lessee has entered or shall, on a
timely basis, enter into such agreements with architects, engineers,
contractors, consultants, materialmen, suppliers, agents, employees and other
Persons as are necessary or appropriate to construct the New Improvements and
perform Lessee's other obligations and duties hereunder in connection therewith
(together with the Plans and Specifications, the "Construction Agreements").
Each Construction Agreement shall expressly permit the assignment of Lessee's
rights thereunder to Lessor without the consent of the other party(ies) to such
agreement. Upon Lessor's request, Lessee shall deliver to Lessor copies of any
or all Construction Agreements.
3.03. Permits, Approvals, Etc. Prior to the time they are required,
Lessee shall obtain from Governmental Authorities and other Persons all
licenses, approvals, authorizations, consents, permits, easements and
rights-of-way that are necessary for the construction of any New Improvements in
accordance with this Agreement. Upon Lessor's request, Lessee shall deliver to
Lessor copies of any or all such licenses, approvals, authorizations, consents,
permits, easements and rights-of-way.
3.04. Material and Supplies. Lessee shall obtain all materials and
supplies necessary to construct the New Improvements. Lessee shall cause all
such materials and supplies (a) to be purchased in a manner that will result in
the ownership thereof vesting unconditionally in Lessor,
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free from all Liens (other than Liens that attach in favor of the materialmen or
subcontractors that supply and/or install such materials and supplies); (b) to
be stored at the applicable Tract of Land under adequate safeguards to minimize
the possibility of loss, theft, damage or commingling with other materials or
projects; and (c) to be covered by the insurance policies required under this
Agreement and the other Operative Documents. Upon Lessor's request, Lessee shall
deliver to Lessor copies of any contracts, bills of sale, statements, receipts,
vouchers or agreements for the materials and supplies used or to be used in the
construction of the New Improvements.
3.05 Construction.
(a) Manner. Lessee shall construct the New Improvements
(including all foundations and structural portions thereof; all
plumbing, heating, air conditioning and electrical systems; and all
water, sewer, electric, gas, telephone and drainage facilities) in a
good and workmanlike manner, free from any material defect in design
or construction, in accordance with the Plans and Specifications,
this Agreement, the other Operative Documents, all applicable
Governmental Rules and all applicable Insurance Requirements.
(b) Completion. Lessee shall Complete the construction of
the New Improvements to all Tracts of Property on which New
Improvements are to be constructed on or prior to the Outside
Completion Date. "Completion" shall occur for the New Improvements to
a Tract of Property when each of the following conditions has been
satisfied:
(i) The New Improvements to such Tract of
Property have been completed in accordance with this
Agreement, are in first class working condition and are
ready for occupancy and use as a facility as described in
clause (ii) under the heading for the applicable Tract of
Property in Schedule 4.01(s) to the Participation
Agreement. This shall include, without limiting the
generality of the preceding sentence, evidence that (A) all
utilities required to adequately service such New
Improvements for their intended use are available and
"tapped on" and hooked up pursuant to adequate permits
(including any that may be required under applicable
Environmental Laws) and (B) access to such New Improvements
for pedestrians and motor vehicles from publicly dedicated
streets and public highways are available.
(ii) Lessee shall have furnished to Lessor each
of the following:
(A) A certificate of Lessee in the form
of Exhibit A, duly executed by Lessee;
(B) A certificate of an architect
acceptable to Lessor in the form of Exhibit B,
duly executed by such architect, together with
copies of each of the documents referred to
therein;
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(C) A date-down endorsement to or
reissued title insurance policies or binders
delivered by Lessee pursuant to Paragraph 3.02
and Schedule 3.02 of the Participation Agreement;
(D) Copies of all mechanic's or
materialman's lien waivers and releases as
required by Lessor; and
(E) Certificate of final occupancy
issued by the appropriate Governmental Authority.
3.06. Insurance. Lessee (and its general contractor) shall maintain
policies of casualty and liability insurance as provided in Paragraph 3.03 of
the Lease Agreement.
3.07. Fees, Costs and Expenses.
(a) Lessee's Responsibility. Except to the extent such
fees, costs and expense are paid by Advances, Lessee shall pay all
fees, costs and expenses of constructing the New Improvements from
its own funds.
(b) Prompt Payment. Lessee shall pay promptly all fees,
costs and expenses of architects, engineers, contractors,
materialmen, suppliers, consultants, agents, employees and other
Persons which provide services, materials or supplies in connection
with the construction of the New Improvements and all other fees,
costs and expenses related to such construction.
(c) No Lessee Fee. Lessee shall not be entitled to any fee
for the performance of its obligations and duties hereunder or any
other compensation in connection with this Agreement.
3.08. Books and Records. Lessee shall maintain accurate books and
records, in reasonable detail, relating to the construction of the New
Improvements and shall permit Lessor to inspect the same and make copies
thereof, at Lessee's expense, upon reasonable notice to Lessee.
3.09. Additional Obligations and Duties. In addition to the
obligations and duties set forth above in this Section 3, Lessee shall perform
all other acts reasonably necessary to achieve Completion of the construction of
the New Improvements in accordance with the Plans and Specifications, this
Agreement, the other Operative Documents, all applicable Governmental Rules and
all applicable Insurance Requirements.
SECTION 4. MISCELLANEOUS.
4.01. Notices. Except as otherwise specified herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Lessee or Lessor under this
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Agreement shall be given as provided in Subparagraph 2.02(c) and Paragraph 7.01
of the Participation Agreement.
4.02. Waivers; Amendments. Any term, covenant, agreement or condition
of this Agreement may be amended or waived only as provided in the Participation
Agreement. No failure or delay by any Lessor Party in exercising any right
hereunder shall operate as a waiver thereof or of any other right nor shall any
single or partial exercise of any such right preclude any other further exercise
thereof or of any other right. Unless otherwise specified in any such waiver or
consent, a waiver or consent given hereunder shall be effective only in the
specific instance and for the specific purpose for which given.
4.03. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the Lessor Parties and Lessee and their permitted
successors and assigns; provided, however, that the Lessor Parties and Lessee
shall not sell, assign or delegate their respective rights and obligations
hereunder except as provided in the Participation Agreement.
4.04. No Third Party Rights. Nothing expressed in or to be implied
from this Agreement is intended to give, or shall be construed to give, any
Person, other than the Lessor Parties and Lessee and their permitted successors
and assigns, any benefit or legal or equitable right, remedy or claim under or
by virtue of this Agreement or under or by virtue of any provision herein.
4.05. Partial Invalidity. If at any time any provision of this
Agreement is or becomes illegal, invalid or unenforceable in any respect under
the law or any jurisdiction, neither the legality, validity or enforceability of
the remaining provisions of this Agreement nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
4.06. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California without
reference to conflicts of law rules.
4.07. Counterparts. This Agreement may be executed in any number of
identical counterparts, any set of which signed by all the parties hereto shall
be deemed to constitute a complete, executed original for all purposes.
4.08. Nature of Lessee's Obligations.
(a) Independent Obligation. The obligation of Lessee to
construct the New Improvements pursuant to this Agreement and the
other Operative Documents and to perform the other Lessee Obligations
are absolute, unconditional and irrevocable obligations which are
separate and independent of the obligations of the Lessor Parties
under this Agreement and the other Operative Documents and all other
events and circumstances, including the events and circumstances set
forth in Subparagraph 4.08(c).
(b) No Termination or Abatement. This Agreement and the
other Operative Documents and Lessee's obligation to construct the
New Improvements and to pay and
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318
perform all other Lessee Obligations shall continue in full
force and effect without abatement notwithstanding the
occurrence or existence of any event or circumstance, including
any event or circumstance set forth in Subparagraph 4.08(c).
(c) Full Payment and Performance. Lessee shall perform all
of its obligations under this Agreement and the other Operative
Documents in the manner and at the times required by the terms of
this Agreement and the other Operative Documents without setoff,
deduction or reduction of any kind and shall perform all other Lessee
Obligations as and when required, without regard to any event or
circumstances whatsoever, including (i) the condition of the Property
(including any Improvements to the Property made prior to the
Commencement Date or during the Term); (ii) title to the Property
(including possession of the Property by any Person or the existence
of any Lien or any other right, title or interest in or to any of the
Property in favor of any Person); (iii) the value, habitability,
useability, design, operation or fitness for use of the Property;
(iv) the availability or adequacy of utilities and other services to
the Property; (v) any latent, hidden or patent defect in the
Property; (vi) the zoning or status of the Property or any other
restrictions on the use of the Property; (g) the economics of the
Property; (vii) any Casualty or Condemnation; (viii) the compliance
of the Property with any applicable Governmental Rule or Insurance
Requirement; (ix) any failure by any Lessor Party to perform any of
its obligations under this Agreement or any other Operative Document;
or (x) the exercise by any Lessor Party of any of its remedies under
this Agreement or any other Operative Document; provided, however,
that (A) Lessor shall have no obligation to continue constructing the
New Improvements at any time the Lessor Parties are refusing to make
any Advance in violation of the Participation Agreement and (B) this
Paragraph 4.08 shall not abrogate any right which Lessee may have to
recover damages from any Lessor Party for any material breach by such
Lessor Party of its obligations under this Agreement or any other
Operative Document to the extent permitted hereunder or thereunder.
[The signature page follows.]
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319
IN WITNESS WHEREOF, Lessee and Lessor have caused this Agreement to
be executed as of the day and year first above written.
LESSEE: KLA-TENCOR CORPORATION
By: _________________________________
Name:_________________________
Title:________________________
LESSOR: LEASE PLAN U.S.A., INC.
By: _________________________________
Name:_________________________
Title:________________________
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320
EXHIBIT A
LESSEE'S COMPLETION CERTIFICATE
________________, 1997
Lease Plan U.S.A., Inc.
c/o ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to the following:
(a) The Participation Agreement, dated as of November 12,
1997 (the "Participation Agreement"), among KLA-Tencor Corporation
("Lessee"), Lease Plan U.S.A., Inc. ("Lessor"), the financial
institutions listed in Schedule I to the Participation Agreement (the
"Participants") and ABN AMRO Bank N.V., as agent for the Participants
(in such capacity, "Agent"); and
(b) The Construction Agency Agreement, dated as of November
12, 1997 (the "Construction Agency Agreement"), between Lessee and
Lessor.
Unless otherwise indicated, all terms defined in the Participation Agreement
have the same respective meanings when used herein.
2. Lessee hereby certifies to Lessor, for the benefit of all of the
Lessor Parties, as follows:
(a) Lessee has completed all of the New Improvements to the
Tract [__] Property in accordance with the Plans and Specifications,
the Construction Agency Agreement, the other Operative Documents, all
applicable Governmental Rules and all applicable Insurance
Requirements and the New Improvements now are ready for use and
occupancy as a facility described in clause (ii) under the heading
"Tract [__] Property" in Schedule 4.01(s) to the Participation
Agreement.
(b) All amounts payable to third parties for the
construction of such New Improvements have been paid in full (other
than amounts which Lessee is contesting in accordance with the Lease
Agreement).
(c) No changes or modifications that have had an adverse
effect on the value, use or useful life of the Tract [__] Property
were made to the Plans and Specifications for the New Improvements to
such Property after the date the Plans and Specifications for such
Property were approved by Lessor, Agent and the Participants pursuant
to Subparagraph 2.01(c) of the Participation Agreement.
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321
(d) The representations and warranties relating to the
Tract [__] Property set forth in Subparagraph 4.01(s) of the
Participation Agreement and Schedule 4.01(s) to the Participation
Agreement and the other representations and warranties of Lessee set
forth in the Operative Documents are true and correct in all material
respects on the date hereof (except for representations and
warranties expressly made as of a specified date, which shall be true
as of such date).
(e) No Default has occurred and is continuing.
(f) All of the Operative Documents are in full force and
effect.
IN WITNESS WHEREOF, Lessee has executed this Lessee's Completion
Certificate on the date set forth above.
KLA-TENCOR CORPORATION
By:_________________________________
Name:________________________
Title:_______________________
A-2
322
EXHIBIT B
ARCHITECT'S COMPLETION CERTIFICATE
________________, 1997
Lease Plan U.S.A., Inc.
c/o ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to the following:
(a) The [____________] Agreement, dated as of [____] (the
"Architect's Agreement"), between KLA-Tencor Corporation ("Lessee")
and [__________] ("Architect"); and
(b) The plans and specifications dated as of [_______]
prepared by Architect for certain improvements to the property
located at [_______________] (the "Plans and Specifications").
2. The undersigned hereby certifies to you as follows:
(a) The improvements contemplated by the Plans and
Specifications (the "Improvements") have been completed substantially
in accordance with such Plans and Specifications, a final certificate
of occupancy has been issued by the appropriate governmental agency,
and the Improvements are ready for use and occupancy.
(b) To the best of [my][our] knowledge, the Improvements as
so completed comply with all applicable laws, rule, regulations and
ordinances pertaining to the construction and occupancy thereof,
including applicable building and zoning laws, rule, regulations and
ordinances, and the Americans with Disabilities Act of 1990, 42
U.S.C. Section 1210 et seq.
(c) No changes or modifications were made to the Plans and
Specifications after the date thereof that have had an adverse effect
on the value, use or useful life of the Property.
(d) Attached hereto are true and complete copies of an "as
built" or "record" set of the plans and specifications for the
Improvements, and an ALTA survey of the property "as built" showing
all paving, driveways, fences and exterior improvements.
B-1
323
IN WITNESS WHEREOF, the undersigned has executed this Architect's
Completion Certificate on the date set forth above.
[Name of Architectural Firm]
By:______________________________
Name:_____________________
Title:____________________
B-2
324
EXECUTION COPY
================================================================================
CONSTRUCTION AGENCY AGREEMENT
BETWEEN
KLA-TENCOR CORPORATION
AND
LEASE PLAN U.S.A., INC.
NOVEMBER 12, 1997
================================================================================
325
TABLE OF CONTENTS
PAGE
SECTION 1. INTERPRETATION................................................2
1.01. Definitions......................................................2
1.02. Rules of Construction............................................2
SECTION 2. APPOINTMENT; AUTHORITY........................................2
2.01. Appointment......................................................2
2.02. Scope of Authority...............................................2
2.03. Delegation of Duties.............................................2
SECTION 3. LESSEE'S OBLIGATIONS AND DUTIES...............................2
3.01. Plans and Specifications.........................................2
3.02. Construction Agreements..........................................3
3.03. Permits, Approvals, Etc..........................................3
3.04. Material and Supplies............................................3
3.05 Construction.....................................................4
3.06. Insurance........................................................5
3.07. Fees, Costs and Expenses.........................................5
3.08. Books and Records................................................5
3.09. Additional Obligations and Duties................................5
SECTION 4. MISCELLANEOUS.................................................5
4.01. Notices..........................................................5
4.02. Waivers; Amendments..............................................6
4.03. Successors and Assigns...........................................6
4.04. No Third Party Rights............................................6
4.05. Partial Invalidity...............................................6
4.06. Governing Law....................................................6
4.07. Counterparts.....................................................6
4.08. Nature of Lessee's Obligations...................................6
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326
TABLE OF CONTENTS
PAGE
EXHIBITS
- ---------
A Lessee's Completion Certificate (3.05(c))
B Architect's Completion Certificate (3.05(c)
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327
CONSTRUCTION DEED OF TRUST
THIS CONSTRUCTION DEED OF TRUST dated as of November 12, 1997 (this
"Deed of Trust"), is made by LEASE PLAN U.S.A., INC., a Georgia corporation, as
trustor ("Lessor"), with an address at 135 South LaSalle Street, Chicago, IL
60603, to SANTA CLARA LAND TITLE COMPANY, as trustee ("Trustee"), in favor of
ABN AMRO BANK N.V., with an address at 1325 Avenue of the Americas, 9th Floor,
New York, NY 10019, in its capacity as Agent, as beneficiary (in such capacity,
"Agent"), under the Participation Agreement, dated of even date herewith (as
amended, supplemented or otherwise modified from time to time, the
"Participation Agreement"), among KLA-Tencor Corporation, a Delaware corporation
("Lessee"), Lessor, Agent, and the financial institutions from time to time
parties to the Participation Agreement (the "Participants").
SECTION 1. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this Deed of Trust or
any other Operative Document, each term set forth in Schedule 1.01 to the
Participation Agreement, when used in this Deed of Trust or any other Operative
Document, shall have the respective meaning given to that term in such Schedule
1.01 or in the provision of this Deed of Trust or other document, instrument or
agreement referenced in such Schedule 1.01. All terms defined in the UCC shall
have the respective meanings given to those terms in the UCC.
1.02. Rules of Construction. Unless otherwise indicated in this Deed of
Trust or any other Operative Document, the rules of construction set forth in
Schedule 1.02 to the Participation Agreement shall apply to this Deed of Trust
and the other Operative Documents.
SECTION 2. GRANT IN TRUST
2.01. Property. To secure payment of the Secured Obligations (as defined
below), Lessor does hereby GRANT, CONVEY, SELL, TRANSFER, ASSIGN AND SET OVER
UNTO TRUSTEE, IN TRUST FOR THE BENEFIT OF AGENT, WITH POWER OF SALE AND RIGHT OF
ENTRY AND POSSESSION, all of Lessor's right, title and interest, whether now
owned or hereafter acquired, in or to the following property and rights listed
below (such right, title and interest in such property and rights hereinafter
collectively referred to as the "Property") to the extent of Lessor's estate,
right, title and interest therein, thereto or thereunder:
(a) All lots, pieces, tracts and parcels of land described in
Exhibit A together with such additional parcels of real property as may
be added to Exhibit A from time to time during the term hereof (the
"Land");
(b) All Improvements and Appurtenant Rights;
(c) All Related Goods (including those described in Exhibit B and
in each Exhibit B Supplement), Related Permits and Related Agreements;
and
(d) All accessions and accretions to and replacements and
substitutions for the foregoing.
328
SECTION 3. OBLIGATIONS SECURED
3.01. Obligations Secured. Lessor makes this grant and assignment for
the purpose of securing the following obligations (hereinafter "Secured
Obligations"):
(a) Full and punctual payment, performance and observance by
Lessor of the Lessor Obligations; and
(b) All modifications, extensions and renewals of any of the
obligations secured hereby, however evidenced, including, without
limitation: (i) modifications of the required payment, deferring or
accelerating payment dates wholly or partly; or (ii) amendments,
modifications, extensions or renewals of this Deed of Trust, the
Participation Agreement or any of the other Operative Documents.
SECTION 4. REPRESENTATIONS, WARRANTIES, COVENANTS AND DUTIES OF THE PARTIES.
4.01. Representations and Warranties. Lessor represents and warrants to
Agent as follows:
(a) Lessor is the legal and beneficial owner of the Property (or,
in the case of after-acquired Property, at the time Lessor acquires
rights in the Property, will be the legal and beneficial owner thereof).
(b) Lessor has not transferred to any other Person any of its
right, title or interest in the Property, whether by way of Lien or
otherwise.
(c) Lessor's chief executive office is located at 180 Interstate
Parkway North, Atlanta, Georgia 30339.
4.02. Covenants. Lessor hereby covenants to Agent as follows:
(a) Lessor shall promptly procure, execute and deliver to Agent
all documents, instruments and agreements and perform all acts which are
necessary or desirable, or which Agent may request, to establish,
maintain, preserve, protect and perfect the Property, the Lien granted
to Agent therein and the first priority of such Lien or to enable Agent
to exercise and enforce its rights and remedies hereunder with respect
to any Property.
(b) Lessor shall not sell, transfer or assign any of its right,
title or interest in the Property to any Person (other than Agent),
whether by way of Lien or otherwise.
(c) Without prompt written notice to Agent, Lessor shall not
change Lessor's name or chief executive office.
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329
4.03. Damages; Insurance and Condemnation Proceeds.
(a) Lessor shall give Agent prompt written notice of the
occurrence of any casualty affecting, or the institution of any
proceedings for eminent domain or for the condemnation of, the Property
or any portion thereof. Agent may participate in any such claims or
proceedings, and Agent is hereby authorized, in its own name or in
Lessor's name, to adjust any loss covered by insurance or any
condemnation claim or cause of action, and to settle or compromise any
claim or cause of action in connection therewith, and Lessor shall from
time to time deliver to Agent any and all further assignments and other
instruments required to permit such participation. The provisions
regarding the adjustment of any loss covered by insurance or any
condemnation claim or cause of action, and to settlement or compromise
of any claim or cause of action in connection therewith provided in this
Section 4.03(a) are subject to the adjustment, settlement and compromise
provisions set forth in the Lease Agreement. In the event of any
conflict, the adjustment, settlement and compromise provisions as
provided in the Lease Agreement shall govern.
(b) The following rights, claims and amounts are hereby
absolutely and irrevocably assigned to and shall be paid to Agent: (i)
all awards of damages and all other compensation payable directly or
indirectly by reason of a condemnation or proposed condemnation for
public or private use affecting all or any part of, or any interest in,
the Property; (ii) all other claims and awards for damages to or
decrease in value of all or any part of, or any interest in, the
Property; (iii) all proceeds of any insurance policies payable by reason
of loss sustained to all or any part of the Property; and (iv) all
interest which may accrue on any of the foregoing (collectively, "Loss
Proceeds"). The provisions regarding Loss Proceeds provided in this
Section 4.03(b) are subject to the insurance and condemnation provisions
set forth in the Lease Agreement. In the event of any conflict, the
insurance and condemnation provisions as provided in the Lease Agreement
shall govern.
4.04. Acceptance of Trust; Powers and Duties of Trustee. Trustee accepts
this trust when this Deed of Trust is recorded. From time to time upon written
request of Agent and presentation of this Deed of Trust, or a certified copy
thereof, for endorsement, and without affecting the personal liability of any
person for payment of any indebtedness or performance of any Secured Obligation,
Trustee may, without liability therefor and without notice: (a) reconvey all or
any part of the Property; (b) consent to the making of any map or plat thereof;
(c) join in granting any easement thereon; (d) join in any declaration of
covenants and restrictions; or (e) join in any extension agreement or any
agreement subordinating the lien or charge hereof. Except as may otherwise be
required by applicable law, Trustee or Agent may from time to time apply to any
court of competent jurisdiction for aid and direction in the execution of the
trusts hereunder and the enforcement of the rights and remedies available
hereunder, and Trustee or Agent may obtain orders or decrees directing or
confirming or approving acts in the execution of said trusts and the enforcement
of said remedies. Trustee has no obligation to notify any party of any pending
sale or any action or proceeding (including, without limitation, actions in
which Lessor, Agent or Trustee shall be a party) unless held or commenced and
maintained by Trustee under this Deed of Trust. Trustee shall not be obligated
to perform any act required of it
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330
hereunder unless the performance of the act is requested in writing and Trustee
is reasonably indemnified and held harmless against loss, cost, liability and
expense.
4.05. Substitution of Trustee. From time to time, by a writing signed
and acknowledged by Agent and recorded in the Office of the Recorder of the
County in which the Property is situated, Agent may appoint another trustee to
act in the place and stead of Trustee or any successor. Such writing shall set
forth any information required by law. The recordation of such instrument of
substitution shall discharge Trustee herein named and shall appoint the new
trustee as the trustee hereunder with the same effect as if originally named
trustee herein. A writing recorded pursuant to the provisions of this paragraph
shall be conclusive proof of the proper substitution of such new trustee.
4.06. Partial and Full Reconveyance. Agent may release, for such
consideration or none, as it may require, any portion of the Property without,
as to the remainder of the Property, in any way impairing or affecting the lien,
security interest and priority herein provided to the Agent as to any other lien
holder or secured party. Further, upon satisfaction in full of the Secured
Obligations, or upon Agent's written request, and upon surrender of this Deed of
Trust or certified copy thereof and any note, instrument or instruments setting
forth all obligations secured hereby to Trustee for cancellation, Trustee shall
reconvey, without warranty, the Property or that portion thereof then held
hereunder. The recitals of any matters or facts in any reconveyance executed
hereunder shall be conclusive proof of the truthfulness thereof. To the extent
permitted by law, the reconveyance may describe the grantee as "the person or
persons legally entitled thereto." Neither Agent nor Trustee shall have any duty
to determine the rights of persons claiming to be rightful grantees of any
reconveyance.
4.07. Releases, Extensions, Modifications and Additional Security. Agent
may, from time to time, release any person or entity from liability for the
payment or performance of any Secured Obligation, take any action or make any
agreement extending the maturity or otherwise altering the terms or increasing
the amount of any Secured Obligation, or accept additional security or release
all or a portion of the Property and other security for the Secured Obligations.
None of the foregoing actions shall release or impair the priority of the lien
of this Deed of Trust upon the Property.
SECTION 5. DEFAULT; REMEDIES.
5.01. Event of Default. The occurrence of any of the following events
shall be deemed an event of default ("Event of Default") hereunder:
(a) The occurrence of an Event of Default as defined in the
Lease Agreement; or
(b) Lessor shall fail to observe, perform or discharge any of
Lessor's Obligations, and (i) such failure shall remain uncured for
thirty (30) days after written notice thereof shall have been given to
Lessor by Agent, or (ii) if such failure is of such a nature that it
cannot be cured within such thirty (30) day period, Lessor shall fail to
commence to cure such failure within such thirty (30) day period or
shall fail to diligently prosecute such curative action thereafter.
4
331
5.02. Rights and Remedies. At any time after the occurrence and during
the continuance of an Event of Default, Agent and Trustee shall each have all of
the following rights and remedies:
(a) Appointment of a Receiver. To apply to any court of competent
jurisdiction for, and obtain appointment of, a receiver for the
Property.
(b) Specific Performance. To bring an action in any court of
competent jurisdiction to obtain specific enforcement of any of the
covenants or agreements of Lessor in this Deed of Trust or any of the
other Operative Documents.
(c) Collection of Issues and Profits. To collect Issues and
Profits.
(d) Protection of Property. To enter, take possession of, manage
and operate all or any part of the Property or take any other actions
which it reasonably determines are necessary to protect the Property and
the rights and remedies of Agent under this Deed of Trust and the other
Operative Documents, including (i) taking and possessing all of Lessor's
books and records; (ii) entering into, enforcing, modifying, or
canceling subleases on such terms and conditions as Agent may consider
proper; (iii) obtaining and evicting tenants; (iv) fixing or modifying
sublease rents; (v) collecting and receiving any payment of money owing
to Lessee; (vi) completing any unfinished Improvements; and/or (vii)
contracting for and making repairs and alterations.
(e) Uniform Commercial Code Remedies. To exercise any or all of
the remedies granted to a secured party under the California Uniform
Commercial Code.
(f) Judicial Foreclosure. To bring an action in any court of
competent jurisdiction to foreclose the security interest in the
Property granted to Agent by this Deed of Trust or any of the other
Operative Documents.
(g) Power of Sale. To cause some or all of the Property,
including any Personal Property Collateral, to be sold under a power of
sale or otherwise disposed of in any combination and in any manner
permitted by applicable Governmental Rules.
(i) Sales of Personal Property. Agent may dispose of any
Personal Property Collateral separately from the sale of Real
Property Collateral, in any manner permitted by Division 9 of the
California Uniform Commercial Code, including any public or
private sale, or in any manner permitted by any other applicable
Governmental Rule. Any proceeds of any such disposition shall not
cure any Event of Default or reinstate any Lessor Obligation for
purposes of Section 2924c of the California Civil Code. In
connection with any such sale or other disposition, Lessor agrees
that the following procedures constitute a commercially
reasonable sale:
(A) Agent shall mail written notice of the sale to
Lessor not later than thirty (30) days prior to such sale.
5
332
(B) Once per week during the three weeks
immediately preceding such sale, Agent will publish notice
of the sale in a local daily newspaper of general
circulation.
(C) Upon receipt of any written request, Agent will
make the Property available to any bona fide prospective
purchaser for inspection during reasonable business hours.
(D) Notwithstanding anything to the contrary
herein, Agent shall be under no obligation to consummate a
sale if, in its judgment, none of the offers received by
it equals the fair value of the Property offered for sale.
(E) If Agent so requests, Lessor shall assemble all
of the Personal Property Collateral and make it available
to Agent at the site of the Land. Regardless of any
provision of this Deed of Trust or any other Operative
Document, Agent shall not be considered to have accepted
any property other than cash or immediately available
funds in satisfaction of any Lessor Obligation, unless
Agent has given express written notice of its election of
that remedy in accordance with California Uniform
Commercial Code Section 9505.
The foregoing procedures do not constitute the only procedures
that may be commercially reasonable.
(ii) Agent's Sales of Real Property or Mixed Collateral.
Agent may choose to dispose of some or all of the Property which
consists solely of Real Property Collateral in any manner then
permitted by applicable Governmental Rules, including without
limitation a nonjudicial trustee's sale pursuant to California
Civil Code ss.ss. 2924 et seq. In its discretion, Agent may also
or alternatively choose to dispose of some or all of the
Property, in any combination consisting of both Real Property
Collateral and Personal Property Collateral, together in one sale
to be held in accordance with the law and procedures applicable
to real property, as permitted by Section 9501(4) of the
California Uniform Commercial Code. Lessor agrees that such a
sale of Personal Property Collateral together with Real Property
Collateral constitutes a commercially reasonable sale of the
Personal Property Collateral. (For purposes of this power of
sale, either a sale of Real Property Collateral alone, or a sale
of both Real Property Collateral and Personal Property Collateral
together in accordance with California Uniform Commercial Code
Section 9501(4), will sometimes be referred to as an "Agent's
Sale.")
(A) Before any Agent's Sale, Agent shall give such
notice of default and election to sell as may then be
required by applicable Governmental Rules.
6
333
(B) When all time periods then legally mandated
have expired, and after such notice of sale as may then be
legally required has been given, Agent shall sell the
property being sold at a public auction to be held at the
time and place specified in the notice of sale.
(C) Agent shall have no obligation to make demand
on Lessor before any Agent's Sale.
(D) From time to time in accordance with then
applicable law, Agent may postpone any Agent's Sale by
public announcement at the time and place noticed for that
sale.
(E) At any Agent's Sale, Agent shall sell to the
highest bidder at public auction for cash in lawful money
of the United States.
(F) Agent shall execute and deliver to the
purchaser(s) a deed or deeds conveying the Property being
sold without any covenant or warranty whatsoever, express
or implied. The recitals in any such deed of any matters
or facts, including any facts bearing upon the regularity
or validity of any Agent's Sale, shall be conclusive proof
of their truthfulness. Any such deed shall be conclusive
against all Persons as to the facts recited in it.
(h) Foreclosure Sales.
(i) Single or Multiple. If the Property consists of more
than one lot, parcel or item of property, Agent may:
(A) Designate the order in which the lots, parcels
and/or items shall be sold or disposed of or offered for
sale or disposition; and
(B) Elect to dispose of the lots, parcels and/or
items through a single consolidated sale or disposition to
be held or made under the power of sale granted under this
Deed of Trust, or in connection with judicial proceedings,
or by virtue of a judgment and decree of foreclosure and
sale; or through two or more such sales or dispositions;
or in any other manner Agent may deem to be in its best
interests (any such sale or disposition, a "Foreclosure
Sale;" any two or more, "Foreclosure Sales").
If Agent chooses to have more than one Foreclosure Sale, Agent at
its option may cause the Foreclosure Sales to be held
simultaneously or successively, on the same day, or on such
different days and at such different times and in such order as
it may deem to be in its best interests. No Foreclosure Sale
shall terminate or affect the security interests granted to Agent
in the Property by this Deed of Trust on any part of the Property
which has not been sold, until all of the Lessor Obligations have
been performed in full.
7
334
(ii) Credit Bids. At any Foreclosure Sale, any Person,
Participant or Agent may bid for and acquire the Property or any
part of it to the extent permitted by then applicable
Governmental Rules. Instead of paying cash for that property,
Agent may settle for the purchase price by crediting the sales
price of the Property against the Lessor Obligations in any order
and proportions as Agent in its sole discretion may choose.
(i) Other Rights and Remedies. To exercise any other right, power
or remedy permitted to it by any applicable Governmental Rule, either by
suit in equity or by action at law, or both.
5.03. Remedies Cumulative. The rights and remedies of Agent under this
Deed of Trust and the other Operative Documents are cumulative and may be
exercised singularly, successively, or together.
5.04. No Cure or Waiver. The exercise by Agent of any of its other
rights and remedies under this Deed of Trust or any other Operative Document
(including the collection of Issues and Profits) shall not constitute a cure or
waiver of any Event of Default or nullify the effect of any notice of default or
sale, unless and until all Lessor Obligations are performed in full.
5.05. Exercise of Rights and Remedies. The rights and remedies provided
to Agent under this Deed of Trust may be exercised by Agent itself, by a
court-appointed receiver or by any other Person appointed by any of the
foregoing to act on its behalf. All of the benefits afforded to Agent under this
Deed of Trust and the other Operative Documents shall accrue to the benefit of
the Participants to the extent provided in Subparagraph 2.02(c) of the
Participation Agreement.
SECTION 6. MISCELLANEOUS PROVISIONS
6.01. Notices. Except as otherwise specified herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Lessor or Agent under this Deed of Trust shall be given as provided in Paragraph
7.01 of the Participation Agreement.
6.02. Waivers; Amendments. Any term, covenant, agreement or condition of
this Deed of Trust may be amended or waived only as provided in the
Participation Agreement. No failure or delay by Agent in exercising any right
hereunder shall operate as a waiver thereof or of any other right nor shall any
single or partial exercise of any such right preclude any other further exercise
thereof or of any other right. Unless otherwise specified in any such waiver or
consent, a waiver or consent given hereunder shall be effective only in the
specific instance and for the specific purpose for which given.
6.03. Successors and Assigns. This Deed of Trust shall be binding upon
and inure to the benefit of the Lessor Parties and their permitted successors
and assigns; provided, however, that the Lessor Parties shall not sell, assign
or delegate their respective rights and obligations hereunder except as provided
in the Participation Agreement.
6.04. No Third Party Rights. Nothing expressed in or to be implied from
this Deed of Trust is intended to give, or shall be construed to give, any
8
335
Person, other than the Lessor Parties and their permitted successors and
assigns, any benefit or legal or equitable right, remedy or claim under or by
virtue of this Deed of Trust or under or by virtue of any provision herein.
6.05. Partial Invalidity. If at any time any provision of this Deed of
Trust is or becomes illegal, invalid or unenforceable in any respect under the
law or any jurisdiction, neither the legality, validity or enforceability of the
remaining provisions of this Deed of Trust nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
6.06. Governing Law. This Deed of Trust shall be governed by and
construed in accordance with the laws of the State of California without
reference to conflicts of law rules.
6.07. Counterparts. This Deed of Trust may be executed in any number of
identical counterparts, any set of which signed by all the parties hereto shall
be deemed to constitute a complete, executed original for all purposes.
6.08. Further Assurances. Lessor shall, upon demand by Agent or Trustee,
execute, acknowledge (if appropriate) and deliver any and all documents and
instruments and do or cause to be done all further acts reasonably necessary or
appropriate to effectuate the provisions hereof.
6.09. Merger. No merger shall occur as a result of Agent's acquiring any
other estate in, or any other lien on, the Property unless Agent consents to a
merger in writing.
6.10. Waiver of Marshalling Rights. Lessor, for itself and for all
parties claiming through or under Lessor, and for all parties who may acquire a
lien on or interest in the Property, hereby waives all rights to have the
Property and/or any other property which is now or later may be security for any
Secured Obligation marshalled upon any foreclosure of this Deed of Trust or on a
foreclosure of any other security for any of the Secured Obligations.
6.11. Exhibits. Exhibit A is incorporated into this Deed of Trust by
this reference.
6.12 Subordinate Deed of Trust. This Deed of Trust is junior and
subordinate to the Lease Agreement and the Purchase Agreement.
[Remainder of page intentionally left blank.]
9
336
IN WITNESS WHEREOF, Lessor has caused this Deed of Trust to be executed
as of the day and year first above written.
LEASE PLAN U.S.A., INC.,
a Georgia corporation
By: _____________________________
Name: _______________________
Title: ______________________
(ALL SIGNATURES MUST BE ACKNOWLEDGED)
10
337
STATE OF CALIFORNIA )
)
COUNTY OF________________ )
On ___________ ___, 1997 before me, _______________________, a
Notary Public in and for the State of California, personally appeared
_______________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL]
338
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
ALL THAT CERTAIN REAL PROPERTY LOCATED IN THE COUNTY OF SANTA CLARA, CALIFORNIA,
DESCRIBED AS FOLLOWS:
APN: __________
A-1
339
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Thomas Y. Coleman, Esq.
Orrick, Herrington & Sutcliffe LLP
Old Federal Reserve Bank Building
400 Sansome Street
San Francisco, California 94111
- --------------------------------------------------------------------------------
CONSTRUCTION DEED OF TRUST
DATED AS OF NOVEMBER 12, 1997
BY
LEASE PLAN U.S.A., INC.,
AS TRUSTOR ("LESSOR")
TO
SANTA CLARA LAND TITLE COMPANY,
AS TRUSTEE
FOR THE BENEFIT OF
ABN AMRO BANK N.V., AS AGENT,
AS BENEFICIARY ("AGENT")
RELATING TO PROPERTY SITUATED IN:
SANTA CLARA COUNTY, CALIFORNIA
340
RECORDING REQUESTED BY
AND WHEN RECORDED, RETURN TO:
Orrick, Herrington & Sutcliffe
Old Federal Reserve Bank Building
400 Sansome Street
San Francisco, CA 94111
Attn: James W. Miller, Esq.
- -------------------------------------------------------------------------------
FIRST AMENDMENT TO CONSTRUCTION DEED OF TRUST
THIS FIRST AMENDMENT TO CONSTRUCTION DEED OF TRUST (this "Amendment"),
dated as of November 14, 1997, is entered into by and between LEASE PLAN U.S.A.,
INC., a Georgia corporation, as trustor ("Lessor") with an address at 135 South
LaSalle Street, Chicago, IL 60603, and ABN AMRO BANK N.V., with an address at
101 California Street, Suite 4550, San Francisco, CA 94111-5812, in its capacity
as Agent, as beneficiary (in such capacity, "Agent"), under the Participation
Agreement, dated as of November 12, 1997 (as amended, supplemented or otherwise
modified from time to time, the "Participation Agreement"), among KLA-Tencor
Corporation, a Delaware corporation ("Lessee"), Lessor, Agent, and the financial
institutions from time to time parties to the Participation Agreement (the
"Participants").
RECITALS
A. Lessor and Agent are parties to a certain Construction Deed of Trust
dated as of November 12, 1997, and recorded on November 12, 1997, in the
Official Records of Santa Clara County, California, as Document No. 13935261
(the "Lessor Deed of Trust").
B. Pursuant to the terms of the Participation Agreement, Lessor has
acquired that certain real property described on Exhibit A attached hereto (the
"Tract 4 Land") and made a part hereof.
C. Lessor and Agent now desire to amend the Lessor Deed of Trust to add
the Tract 4 Land to the property under the Lessor Deed of Trust.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Lessor and Agent hereby agree as follows:
1. DEFINITIONS, INTERPRETATION. All capitalized terms defined above and
elsewhere in this Amendment shall be used herein as so defined. Unless otherwise
defined herein, all other capitalized terms used herein shall have the
respective meanings given to those terms in Schedule 1.01 to the Participation
Agreement. The rules of construction set forth in Schedule
341
1.02 to the Participation Agreement shall, to the extent not inconsistent with
the terms of this Amendment, apply to this Amendment and are hereby incorporated
by reference.
2. AMENDMENT TO LESSOR DEED OF TRUST. The Lessor Deed of Trust is hereby
amended by adding to Exhibit A thereto the property description set forth in
Exhibit A to this Amendment. Without limiting the effect of such addition,
Lessor and Agent specifically acknowledge and agree that, on and after the date
hereof, (a) the lien of the Lessor Deed of Trust includes all of Lessor's right,
title and interest in and to the Tract 4 Land and (b) the terms "Land" and
"Property" as defined in the Lessor Deed of Trust include the Tract 4 Land.
3. EFFECT OF THIS AMENDMENT. On and after the date of this Amendment,
each reference in the Lessor Deed of Trust and the other Operative Documents to
the Lessor Deed of Trust shall mean the Lessor Deed of Trust as amended hereby.
Except as specifically amended above, (a) the Lessor Deed of Trust and the other
Operative Documents shall remain in full force and effect and are hereby
ratified and affirmed and (b) the execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power, or remedy of Lessor, the Participants or Agent, nor constitute
a waiver of any provision of the Lessor Deed of Trust or any other Operative
Document.
4. MISCELLANEOUS.
(a) Counterparts. This Amendment may be executed in any number
of counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument. The
signature page and acknowledgment of any counterpart may be removed
therefrom and attached to any other counterpart to evidence execution
thereof by all of the parties hereto without affecting the validity
thereof.
(b) Headings. Headings in this Amendment are for convenience of
reference only and are not part of the substance hereof.
(c) Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of California without
reference to conflicts of law rules.
[The signature page follows.]
2
342
IN WITNESS WHEREOF, Lessor and Agent have caused this Amendment
to be executed as of the day and year first above written.
AGENT: ABN AMRO BANK N.V.
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
LESSOR: LEASE PLAN U.S.A., INC.
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
3
343
STATE OF )
-----------------------)
)
COUNTY OF )
----------------------
On _____________, 1997 before me, _______________________, a Notary
Public in and for the State of California, personally appeared
_______________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL]
--------------------------------------------------
344
STATE OF )
-----------------------)
)
COUNTY OF )
----------------------
On _____________, 1997 before me, _______________________, a Notary
Public in and for the State of California, personally appeared
_______________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL]
--------------------------------------------
345
STATE OF )
-----------------------)
)
COUNTY OF )
----------------------
On _____________, 1997 before me, _______________________, a Notary
Public in and for the State of California, personally appeared
_______________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL]
---------------------------------------------
346
EXHIBIT A
TRACT 4 LAND
THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF SANTA CLARA, STATE
OF CALIFORNIA, AND DESCRIBED AS FOLLOWS:
A-1
347
ASSIGNMENT OF CONSTRUCTION AGREEMENTS
THIS ASSIGNMENT OF CONSTRUCTION AGREEMENTS (this "Agreement" herein),
dated as of November 12, 1997, is executed by
(1) KLA-TENCOR CORPORATION, a Delaware corporation ("Lessee"),
in favor of
(2) LEASE PLAN U.S.A., INC., a Georgia corporation ("Lessor").
RECITALS
A. Lessee has requested Lessor and the financial institutions which are
"Participants" under the Participation Agreement referred to in Recital B below
(such financial institutions to be referred to collectively as the
"Participants") to provide to Lessee a certain lease facility. Pursuant to such
facility: --------- ------------
(1) Lessor would (a) acquire certain property designated by
Lessee (either through purchase or lease), (b) lease to Lessee such
property and certain other property currently held by Lessor, (c)
appoint Lessee as Lessor's agent to make certain improvements to a
portion of such property, (d) make advances to finance such improvements
and to pay certain related expenses, and (e) grant to Lessee the right
to purchase such property; and
(2) The Participants would participate in such lease facility by
(a) funding the purchase price and other advances to be made by Lessor
and (b) acquiring participation interests in the rental and certain
other payments to be made by Lessee.
B. Pursuant to a Participation Agreement dated of even date herewith
(the "Participation Agreement") among Lessee, Lessor, the Participants and ABN
AMRO Bank N.V., as agent for the Participants (in such capacity, "Agent"),
Lessor and the Participants have agreed to provide such lease facility upon the
terms and subject to the conditions set forth therein, including, without
limitation, the execution and delivery of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
SECTION 1. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this Agreement or any
other Operative Document, each term set forth in Schedule 1.01 to the
Participation Agreement, when used in this Agreement or any other Operative
Document, shall have the respective meaning given to that term in such Schedule
1.01 or in the provision of this Agreement or other document, instrument or
agreement referenced in such Schedule 1.01.
348
1.02. Rules of Construction. Unless otherwise indicated in this
Agreement or any other Operative Document, the rules of construction set forth
in Schedule 1.02 to the Participation Agreement shall apply to this Agreement
and the other Operative Documents.
SECTION 2. ASSIGNMENT.
2.01. Assignment. Lessee hereby assigns to Lessor all of Lessee's right,
title and interest in, to and under all existing and future agreements and
contracts between Lessee and any other Person (collectively, the "Construction
Agreements") relating to the construction of any and all New Improvements on any
portion of the Land described in Exhibit A to the Lease Agreement, including,
without limitation, the agreements and contracts described in Exhibit A and all
future Construction Agreements which may be entered into by Lessee. Upon
execution of any new Construction Agreement, Lessee shall promptly notify Lessor
of such Construction Agreement. Upon Lessor's request, Lessee shall provide
Lessor with copies of the Construction Agreements.
2.02. Absolute Assignment. This Agreement constitutes a present and
absolute assignment to Lessor; provided, however, that Lessor may not enforce
the terms of the Construction Agreements except during continuance of an Event
of Default. Upon the occurrence of any Event of Default, Lessor may, in its sole
discretion, give notice to any of the contractors referred to in the
Construction Agreements or any other party to the Construction Agreements
(collectively, the "Contractors") of its intent to enforce the rights of Lessee
under the Construction Agreements and may initiate or participate in any legal
proceedings respecting the enforcement of said rights. Lessee acknowledges that,
by accepting this assignment, Lessor does not assume any of Lessee's obligations
under the Construction Agreements.
2.03. Contractor's Consent. In connection with the execution and
delivery to Lessor of this Agreement, Lessee shall obtain and deliver to Lessor
consents from each Contractor under each Construction Agreement in the form
attached hereto as Exhibit B (a "Contractor's Consent to Assignment"). Lessee
shall obtain and provide to Lessor a Contractor's Consent to Assignment for any
new Construction Agreements entered into by Lessee after the date hereof.
SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF LESSEE.
3.01. Representations and Warranties. Lessee represents and warrants to
Lessor that (a) all Construction Agreements entered into by Lessee are in full
force and effect and are enforceable and no default, or event which would
constitute a default after notice or the passage of time, or both, exists with
respect to said Construction Agreements; (b) all copies of the Construction
Agreements delivered to Lessor are complete and correct; and (c) Lessee has not
assigned any of its rights under the Construction
Agreements.
3.02. Covenants. Lessee agrees (a) to pay and perform all obligations of
Lessee under the Construction Agreements; (b) to enforce the payment and
performance of all obligations of any other Person under the Construction
Agreements; (c) not to revise, amend or modify the existing Construction
Agreements if such revision, amendment or modification (either alone or together
with all prior revisions, amendments or modifications to such Construction
Agreements)
2
349
would result in Lessee's failure to comply with the provisions of
Section 3.01 of the Construction Agency Agreement nor to enter into any future
Construction Agreements without Lessor's prior written approval which shall not
be unreasonably withheld, except as otherwise may be permitted by the Operative
Documents; and (d) not to further assign, for security or any other purposes,
its rights under the Construction Agreements without Lessor's prior written
approval.
SECTION 4. MISCELLANEOUS.
4.01. Notices. Except as otherwise specified herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Lessee or Lessor under this Agreement shall be given as provided in Subparagraph
2.02(c) and Paragraph 7.01 of the Participation Agreement.
4.02. Waivers; Amendments. Any term, covenant, agreement or condition of
this Agreement may be amended or waived only as provided in the Participation
Agreement. No failure or delay by any Lessor Party in exercising any right
hereunder shall operate as a waiver thereof or of any other right nor shall any
single or partial exercise of any such right preclude any other further exercise
thereof or of any other right. Unless otherwise specified in any such waiver or
consent, a waiver or consent given hereunder shall be effective only in the
specific instance and for the specific purpose for which given.
4.03. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Lessor Parties and Lessee and their permitted
successors and assigns; provided, however, that the Lessor Parties and Lessee
shall not sell, assign or delegate their respective rights and obligations
hereunder except as provided in the Participation Agreement.
4.04. No Third Party Rights. Nothing expressed in or to be implied from
this Agreement is intended to give, or shall be construed to give, any Person,
other than the Lessor Parties and Lessee and their permitted successors and
assigns, any benefit or legal or equitable right, remedy or claim under or by
virtue of this Agreement or under or by virtue of any provision herein.
4.05. Partial Invalidity. If at any time any provision of this Agreement
is or becomes illegal, invalid or unenforceable in any respect under the law or
any jurisdiction, neither the legality, validity or enforceability of the
remaining provisions of this Agreement nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
4.06. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California without reference to
conflicts of law rules.
[The signature page follows.]
3
350
IN WITNESS WHEREOF, Lessee has caused this Agreement to be executed as
of the day and year first above written.
LESSEE: KLA-TENCOR CORPORATION
By: __________________________________
Name: ____________________________
Title: ___________________________
4
351
EXHIBIT A
CONSTRUCTION AGREEMENTS
NONE
A-1
352
EXHIBIT B
CONTRACTOR'S CONSENT TO ASSIGNMENT
1. Reference is made to (a) the property located at [___________] (the
"Property") and (b) the agreement[s] described in Attachment 1 hereto between
KLA-Tencor Corporation ("Lessee") and the undersigned ("Contractor").
2. Lessee has notified Contractor that, pursuant to an Assignment of
Construction Agreements dated as of November 12, 1997 between Lessee and Lease
Plan U.S.A., Inc. ("Lessor") (the "Assignment"), Lessee has assigned to Lessor
the agreement[s] described in Attachment 1 hereto and all future agreements and
contracts between Lessee and Contractor relating to the construction,
maintenance or repair of any improvements to the Property (collectively, the
"Construction Agreements").
3. Contractor hereby consents to the Assignment and agrees as follows
for the benefit of Lessor:
(a) Except with the prior written approval of Lessor, Contractor
shall not perform any construction work pursuant to any change in the
plans and specifications as set forth or attached to the Construction
Agreements where such change would affect the structural integrity,
quality of building material or equipment or overall efficiency of
operating systems or utility systems of the improvements. The liens of
Lessor's security interests shall have priority over any claim of lien
of Contractor arising out of or in any way connected with any
construction work performed by Contractor on the Property.
(b) If requested by Lessor in the exercise of Lessor's rights
under the Assignment, Contractor shall continue to perform its
obligations under the Construction Agreements in accordance with the
terms thereof. Contractor acknowledges that Lessor may have no means of
discovering when or if Contractor claims a default under the
Construction Agreements and agrees that it will give Lessor prior
written notice of any default claimed by Contractor under the
Construction Agreements. Said notice shall set forth a description of
the default and a request to Lessor to cure the same within thirty (30)
days. Said notice shall be deemed served upon delivery or, if mailed,
upon the first to occur of receipt or the expiration of seventy-two (72)
hours after deposit in United States Postal Service certified mail,
postage prepaid and addressed to the address of Lessor appearing below.
No termination of the Construction Agreements by Contractor shall be
binding upon Lessor unless Lessor has received such notice and has
failed to cure the described default within said thirty (30) days.
Contractor further acknowledges that, unless and until Lessor elects to
exercise its rights under the Assignment and requests Contractor's
performance under the Construction Agreements in writing, Lessor neither
undertakes nor assumes any obligations or liability under the
Construction Agreements.
(c) Contractor shall hold in trust all money disbursed to or otherwise
received by Contractor from or on account of Lessee in connection with the
construction of the improvements and shall use such money solely for the payment
of costs incurred in the
B-1
353
construction of the improvements, including Contractor's fees, and for no other
purpose, until all bills, claims and demands for such costs have been paid in
full.
IN WITNESS WHEREOF, Contractor has executed this Consent on this
___________ day of __________, ____.
[ ]
------------------------------------
By:
-----------------------------------
Name:
----------------------------
Title:
----------------------------
Contractor's Address:
[ ]
------------------------------------
[ ]
------------------------------------
[ ]
------------------------------------
[ ]
------------------------------------
Lessor's Address:
----------------
Lease Plan U.S.A., Inc.
c/o ABN AMRO Bank N.V.
135 So. LaSalle Street
Suite 711
Chicago, IL 60603
Attn: David M. Shipley
B-2
354
EXECUTION COPY
================================================================================
ASSIGNMENT OF CONSTRUCTION AGREEMENTS
BY
KLA-TENCOR CORPORATION
IN FAVOR OF
LEASE PLAN U.S.A., INC.
NOVEMBER 12, 1997
================================================================================
355
LESSOR SECURITY AGREEMENT
THIS LESSOR SECURITY AGREEMENT (this "Agreement" herein), dated as of
November 12, 1997, is executed by:
(1) LEASE PLAN U.S.A., INC., a Georgia corporation ("Lessor"),
in favor of
(2) ABN AMRO BANK N.V., as agent for the Participants under the
Participation Agreement referred to in Recital B below (in such
capacity, "Agent").
RECITALS
A. KLA-Tencor Corporation, a Delaware corporation ("Lessee"), has
requested Lessor and the financial institutions which are "Participants" under
the Participation Agreement referred to in Recital B below (such financial
institutions to be referred to collectively as the "Participants") to provide to
Lessee a certain lease facility. Pursuant to such facility:
(1) Lessor would (a) acquire certain property designated by
Lessee (either through purchase or lease), (b) lease to Lessee such
property and certain other property currently held by Lessor, (c)
appoint Lessee as Lessor's agent to make certain improvements to a
portion of such property, (d) make advances to finance such improvements
and to pay certain related expenses, and (e) grant to Lessee the right
to purchase such property; and
(2) The Participants would participate in such lease facility by
(a) funding the purchase prices and other advances to be made by Lessor
and (b) acquiring participation interests in the rental and certain
other payments to be made by Lessee.
B. Pursuant to a Participation Agreement dated of even date herewith
(the "Participation Agreement") among Lessee, Lessor, the Participants and
Agent, Lessor and the Participants have agreed to provide such lease facility
upon the terms and subject to the conditions set forth therein, including,
without limitation, the execution and delivery of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
SECTION 1. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this Agreement or any
other Operative Document, each term set forth in Schedule 1.01 to the
Participation Agreement, when used in this Agreement or any other Operative
Document, shall have the respective meaning given to that term in such Schedule
1.01 or in the provision of this Agreement or other document,
356
instrument or agreement referenced in such Schedule 1.01. All terms defined in
the UCC shall have the respective meanings given to those terms in the UCC.
1.02. Rules of Construction. Unless otherwise indicated in this
Agreement or any other Operative Document, the rules of construction set forth
in Schedule 1.02 to the Participation Agreement shall apply to this Agreement
and the other Operative Documents.
SECTION 2. GRANT OF SECURITY INTEREST.
2.01. Grant. As security for the Lessor Obligations, Lessor hereby
irrevocably and unconditionally pledges and assigns to Agent, for the benefit of
the Participants and Agent, and grants to Agent, for the benefit of the
Participants and Agent, a security interest in all estate, right, title and
interest of Lessor, whether now owned or hereafter acquired, in and to the
following property (such estate, right, title and interest in such property
herein, collectively and severally, the "Lessor Collateral"):
(a) Operative Documents. The Participation Agreement, the
Construction Agency Agreement, the Purchase Agreement, the Lessee
Security Documents and all other Operative Documents (other than the
Lease Agreement); all exhibits, schedules and other attachments thereto;
and all documents, instruments or agreements issued or executed in
replacement thereof; each as amended, modified and supplemented from
time to time and in effect at any given time;
(b) Collateral. All Collateral for the Lessee Obligations
under the Operative Documents; and
(c) Proceeds. All proceeds of the foregoing (including, without
limitation, whatever is receivable or received when Lessor Collateral or
proceeds is sold, collected, exchanged, returned, substituted or
otherwise disposed of, whether such disposition is voluntary or
involuntary, including rights to payment and return premiums and
insurance proceeds under insurance with respect to any Lessor
Collateral, and all rights to payment with respect to any cause of
action affecting or relating to the Lessor Collateral).
SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF LESSOR.
3.01. Representations and Warranties. Lessor represents and warrants to
Agent and the Participants as follows:
(a) Lessor is the legal and beneficial owner of the Lessor
Collateral (or, in the case of after-acquired Lessor Collateral, at the
time Lessor acquires rights in the Lessor Collateral, will be the legal
and beneficial owner thereof).
(b) Lessor has not transferred to any other Person any of its
right, title or interest in the Lessor Collateral, whether by way of
Lien or otherwise.
(c) Lessor's chief executive office is located at 180 Interstate
Parkway North, Atlanta, Georgia 30339.
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357
3.02. Covenants. Lessor hereby covenants to Agent and the
Participants as follows:
(a) Lessor shall promptly procure, execute and deliver to Agent
all documents, instruments and agreements and perform all acts which are
necessary or desirable, or which Agent may request, to establish,
maintain, preserve, protect and perfect the Lessor Collateral, the Lien
granted to Agent therein and the first priority of such Lien or to
enable Agent to exercise and enforce its rights and remedies hereunder
with respect to any Lessor Collateral.
(b) Lessor shall not sell, transfer or assign any of its right,
title or interest in the Lessor Collateral to any Person (other than
Agent), whether by way of Lien or otherwise.
(c) Without prompt written notice to Agent, Lessor shall not
change Lessor's name or chief executive office.
SECTION 4. RIGHTS AND REMEDIES OF AGENT.
4.01. Authorized Action by Agent. Lessor hereby irrevocably appoints
Agent as its attorney-in-fact and agrees that Agent may perform (but Agent shall
not be obligated to and shall incur no liability to Lessor or any third party
for failure so to do) any act which Lessor is obligated by this Agreement to
perform, and to exercise such rights and powers as Lessor might exercise with
respect to the Lessor Collateral, including, without limitation, the right to
(a) collect by legal proceedings or otherwise and endorse, receive and receipt
for all dividends, interest, payments, proceeds and other sums and property now
or hereafter payable on or on account of the Lessor Collateral; (b) enter into
any extension, reorganization, deposit, merger, consolidation or other agreement
pertaining to, or deposit, surrender, accept, hold or apply other property in
exchange for the Lessor Collateral; (c) insure, process, preserve and enforce
the Lessor Collateral; (d) make any compromise or settlement, and take any
action it deems advisable, with respect to the Lessor Collateral; (e) pay any
Indebtedness of Lessor relating to the Lessor Collateral; and (f) execute UCC
financing statements. Lessor agrees that such care as Agent gives to the
safekeeping of its own property of like kind shall constitute reasonable care of
the Lessor Collateral when in Agent's possession; provided, however, that Agent
shall not be required to make any presentment, demand or protest, or give any
notice and need not take any action to preserve any rights against any prior
party or any other Person in connection with the Lessor Obligations or with
respect to the Lessor Collateral.
4.02. Other Rights and Remedies Upon Default. In addition to all other
rights and remedies granted to Agent by this Agreement and the other Operative
Documents, the UCC and other applicable Governmental Rules, Agent may, if Lessor
fails to perform any of the Lessor Obligations, exercise any one or more of the
following rights and remedies: (a) collect, receive, appropriate or realize upon
the Lessor Collateral or otherwise foreclose or enforce Agent's security
interests in any or all Lessor Collateral in any manner permitted by applicable
Governmental Rules or in this Security Agreement; (b) notify Lessee to make any
or all payments to be made by Lessee under the Operative Documents to Agent; (c)
sell or otherwise dispose of any or all Lessor Collateral at one or more public
or private sales, whether or not such Lessor Collateral is present at the place
of sale, for cash or credit or future delivery, on such
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358
terms and in such manner as Agent may determine; (d) require Lessor to assemble
the Lessor Collateral and make it available to Agent at a place to be designated
by Agent; and (e) prior to the disposition of the Lessor Collateral, store,
process, repair or recondition any Lessor Collateral consisting of goods,
perform any obligations and enforce any rights of Lessor under any Operative
Documents or otherwise prepare and preserve Lessor Collateral for disposition in
any manner and to the extent Agent deems appropriate. In any case where notice
of any sale or disposition of any Lessor Collateral is required, Lessor hereby
agrees that thirty (30) days notice of such sale or disposition is reasonable.
SECTION 5. MISCELLANEOUS.
5.01. Notices. Except as otherwise specified herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Lessor or Agent under this Agreement shall be given as provided in Paragraph
7.01 of the Participation Agreement.
5.02. Waivers; Amendments. Any term, covenant, agreement or condition of
this Agreement may be amended or waived only as provided in the Participation
Agreement. No failure or delay by Agent in exercising any right hereunder shall
operate as a waiver thereof or of any other right nor shall any single or
partial exercise of any such right preclude any other further exercise thereof
or of any other right. Unless otherwise specified in any such waiver or consent,
a waiver or consent given hereunder shall be effective only in the specific
instance and for the specific purpose for which given.
5.03. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Lessor Parties and their permitted successors and
assigns; provided, however, that the Lessor Parties shall not sell, assign or
delegate their respective rights and obligations hereunder except as provided in
the Participation Agreement.
5.04. No Third Party Rights. Nothing expressed in or to be implied from
this Agreement is intended to give, or shall be construed to give, any Person,
other than the Lessor Parties and their permitted successors and assigns, any
benefit or legal or equitable right, remedy or claim under or by virtue of this
Agreement or under or by virtue of any provision herein.
5.05. Partial Invalidity. If at any time any provision of this Agreement
is or becomes illegal, invalid or unenforceable in any respect under the law or
any jurisdiction, neither the legality, validity or enforceability of the
remaining provisions of this Agreement nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
5.06. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California without reference to
conflicts of law rules.
5.07. Counterparts. This Agreement may be executed in any number of
identical counterparts, any set of which signed by all the parties hereto shall
be deemed to constitute a complete, executed original for all purposes.
[The signature page follows.]
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359
IN WITNESS WHEREOF, Lessor has caused this Agreement to be executed as
of the day and year first above written.
LESSOR: LEASE PLAN U.S.A., INC.
By: ___________________________
Name: _________________________
Title: ________________________
5
360
EXECUTION COPY
===============================================================================
LESSOR SECURITY AGREEMENT
BY
LEASE PLAN U.S.A., INC.
IN FAVOR OF
ABN AMRO BANK N.V.,
AS AGENT
NOVEMBER 12, 1997
===============================================================================
361
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement" herein), dated as of November
12, 1997, is entered into by and between:
(1) KLA-TENCOR CORPORATION, a Delaware corporation ("Lessee"); and
(2) LEASE PLAN U.S.A., INC., a Georgia corporation ("Lessor").
RECITALS
A. Lessee has requested Lessor and the financial institutions which are
"Participants" under the Participation Agreement referred to in Recital B below
(such financial institutions to be referred to collectively as the
"Participants") to provide to Lessee a certain lease facility. Pursuant to such
facility:
(1) Lessor would (a) acquire certain property designated by
Lessee (either through purchase or lease), (b) lease to Lessee such
property and certain other property currently held by Lessor, (c)
appoint Lessee as Lessor's agent to make certain improvements to a
portion of such property, (d) make advances to finance such improvements
and to pay certain related expenses, and (e) grant to Lessee the right
to purchase such property; and
(2) The Participants would participate in such lease facility by
(a) funding the purchase prices and other advances to be made by Lessor
and (b) acquiring participation interests in the rental and certain
other payments to be made by Lessee.
B. Pursuant to a Participation Agreement dated of even date herewith
(the "Participation Agreement") among Lessee, Lessor, the Participants and ABN
AMRO Bank N.V., as agent for the Participants (in such capacity, "Agent"),
Lessor and the Participants have agreed to provide such lease facility upon the
terms and subject to the conditions set forth therein, including without
limitation the execution and delivery of this Agreement setting forth the terms
for the purchase of the Property by Lessee from Lessor.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
362
SECTION 1. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this Agreement or any
other Operative Document, each term set forth in Schedule 1.01 to the
Participation Agreement, when used in this Agreement or any other Operative
Document, shall have the respective meaning given to that term in such Schedule
1.01 or in the provision of this Agreement or other document, instrument or
agreement referenced in such Schedule 1.01.
1.02. Rules of Construction. Unless otherwise indicated in this
Agreement or any other Operative Document, the rules of construction set forth
in Schedule 1.02 to the Participation Agreement shall apply to this Agreement
and the other Operative Documents.
SECTION 2. OPTIONAL PURCHASE BY LESSEE DURING THE TERM.
2.01. Term Purchase Option. Subject to the terms and conditions of this
Agreement and the other Operative Documents (including those set forth below in
this Paragraph 2.01), Lessee may, at its option on any Business Day prior to the
Scheduled Expiration Date of the Lease Agreement, terminate the Lease Agreement
and purchase all of the Property (the "Term Purchase Option").
(a) Notice of Term Purchase Option Exercise. Lessee shall notify
Lessor of Lessee's exercise of the Term Purchase Option by delivering to
Lessor an irrevocable written notice in the form of Exhibit A(1),
appropriately completed (the "Notice of Term Purchase Option Exercise"),
which states that Lessee is exercising its right to terminate the Lease
Agreement prior to the Scheduled Expiration Date thereof pursuant to
Paragraph 4.01 of the Lease Agreement and purchase all of the Property
pursuant to this Paragraph 2.01 and specifies the Business Day on which
such termination and purchase are to occur (which date, after the
delivery of such notice, shall be the Expiration Date). Lessee shall
give the Notice of Term Purchase Option Exercise to Lessor at least one
(1) month prior to the Business Day on which such termination and
purchase are to occur. The Notice of Term Purchase Option Exercise shall
be delivered as required by Subparagraph 2.02(c) and Paragraph 7.01 of
the Participation Agreement; provided, however, that Lessee shall
promptly deliver the original of any Notice of Term Purchase Option
Exercise initially delivered by facsimile.
(b) Term Purchase Option Purchase Price. Lessee shall pay to
Lessor on the Expiration Date, as the purchase price for the Property,
an amount equal to the Outstanding Lease Amount on such date.
(c) Effect of Certain Events. Lessee may exercise the Term
Purchase Option as provided in this Paragraph 2.01, notwithstanding (i)
the prior election by Lessee to exercise the Partial Purchase Option
pursuant to Paragraph 2.02, the Marketing Option pursuant to Paragraph
3.01 and Paragraph 3.02 or the Expiration Date Purchase Option pursuant
to Paragraph 3.01 and Paragraph 3.03, provided that Lessor completes the
purchase of the Property pursuant to the Term Purchase Option and this
Agreement prior to the Scheduled Expiration Date and Lessor has not
previously entered into an
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agreement with a Designated Purchaser or an Assignee Purchaser to sell
the Property or (ii) the occurrence of any Event of Default or the
exercise by the Lessor Parties of any of their rights or remedies under
the Operative Documents following the occurrence of such Event of
Default, provided that such exercise by Lessee of the Term Purchase
Option after the occurrence of any Event of Default shall not require
the Lessor Parties to cease exercising such rights and remedies unless
and until Lessee completes the purchase of the Property pursuant to the
Term Purchase Option and this Agreement.
2.02. Partial Purchase Option. Subject to the terms and conditions of
this Agreement and the other Operative Documents (including those set forth
below in this Paragraph 2.02), Lessee may, at its option on any Business Day
prior to the Scheduled Expiration Date of the Lease Agreement, without
terminating the Lease Agreement, purchase one or more Tracts (but less than all)
of the Property (the "Partial Purchase Option").
(a) Notice of Partial Purchase Option Exercise. Lessee shall
notify Lessor of Lessee's exercise of the Partial Purchase Option by
delivering to Lessor an irrevocable written notice in the form of
Exhibit A(2), appropriately completed (the "Notice of Partial Purchase
Option Exercise"), which states that Lessee is exercising its right to
purchase one or more (but less than all) Tracts of the Property prior to
the Scheduled Expiration Date pursuant to this Paragraph 2.02 and
specifies (i) the Tract(s) so to be purchased and (ii) the Business Day
on which such purchase is to occur (a "Partial Purchase Date"). Lessee
shall give each Notice of Partial Purchase Option Exercise to Lessor at
least one (1) month prior to the Partial Purchase Date on which a
purchase is to occur. Each Notice of Partial Purchase Option Exercise
shall be delivered as required by Subparagraph 2.02(c) and Paragraph
7.01 of the Participation Agreement; provided, however, that Lessee
shall promptly deliver the original of any Notice of Partial Purchase
Option Exercise initially delivered by facsimile.
(b) Partial Purchase Option Purchase Price. Lessee shall pay to
Lessor on each Partial Purchase Date, as the purchase price for each
Tract of Property to be purchased on such date, an amount equal to the
portion of the Outstanding Lease Amount on such date attributable to
such Tract of Property.
(c) Conditions to Exercise of Partial Purchase Option. The
purchase by Lessee on any Partial Purchase Date of any Tract of Property
pursuant to this Paragraph 2.02 is subject to receipt by Lessor, on or
prior to such Partial Purchase Date, of new Expiration Date Appraisals
for all Tracts of Property that are to remain subject to the Lease
Agreement after such Partial Purchase Date, which appraisals (i) each
shall be dated a recent date prior to such Partial Purchase Date and
(ii) together shall assess the aggregate Fair Market Value of all such
remaining Tracts of Property at not less than the Outstanding Lease
Amount that will remain after application of all amounts to be applied
thereto on such Partial Purchase Date.
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SECTION 3. OBLIGATIONS OF LESSEE ON THE EXPIRATION DATE.
3.01. Alternative. Unless Lessee has exercised the Term Purchase Option,
on the Expiration Date of the Lease Agreement, Lessee shall either:
(a) Marketing Option. Cause another Person to complete the
purchase of the Property pursuant to Paragraph 3.02 (the "Marketing
Option"); or
(b) Expiration Date Purchase Option. Purchase the Property
itself pursuant to Paragraph 3.03 (the "Expiration Date Purchase
Option").
Lessee shall elect either the Marketing Option or the Expiration Date Purchase
Option by delivering to Lessor, not more than nine (9) months nor less than six
(6) months prior to the Scheduled Expiration Date for the Lease Agreement,
either (i) a written notice in the form of Exhibit B, appropriately completed
(the "Notice of Marketing Option Exercise"), or (ii) a written notice in the
form of Exhibit C, appropriately completed (the "Notice of Expiration Date
Purchase Option Exercise"); provided, however, that (A) Lessee shall be deemed
to have elected the Expiration Date Purchase Option if it fails to deliver
either notice as required by this sentence; (B) Lessee's election of the
Expiration Date Purchase Option (whether expressly by a notice so delivered or
implicitly by the failure to deliver any notice) shall be irrevocable; and (C)
Lessee may not elect the Marketing Option if (1) the Expiration Date has been
accelerated to an earlier Termination Date following a Marketing Option Event of
Default under the Lease Agreement or (2) the conditions set forth in Paragraph
3.04 of the Participation Agreement are not satisfied on the date Lessee
delivers its election notice or on the Expiration Date of the Lease Agreement
(unless, in each case, the only event or condition causing such conditions not
to be so satisfied is the occurrence of a Non-Marketing Option Event of Default
under the Lease Agreement). The Notice of Marketing Option Exercise or the
Notice of Expiration Date Purchase Option Exercise shall be delivered as
required by Subparagraph 2.02(c) and Paragraph 7.01 of the Participation
Agreement; provided, however, that Lessee shall promptly deliver to Lessor the
original of any such notice initially delivered by facsimile.
3.02. Marketing Option.
(a) General. If Lessee elects to exercise the Marketing Option by
delivering to Lessor a Notice of Marketing Option Exercise pursuant to
Paragraph 3.01, Lessee shall (i) locate a purchaser which satisfies the
requirements set forth in this Paragraph 3.02, (ii) arrange for such
purchaser to purchase the Property on the Expiration Date for a purchase
price which is not less than the lesser of (A) the sum of the total
Tranche B Proportionate Share and the total Tranche C Proportionate
Share of the Outstanding Lease Amount and (B) the Fair Market Value of
the Property and (iii) otherwise comply, or cause compliance with, the
requirements of this Paragraph 3.02 and the other applicable provisions
of this Agreement.
(b) Lessee's Marketing Obligations.
(i) Initial Marketing Period. During the period
beginning on the date Lessee delivers the Notice of Marketing
Option Exercise and ending on the date which is four (4) months
prior to the Expiration Date of the Lease Agreement (the
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365
"Initial Marketing Period"), Lessee shall use reasonable efforts
to solicit Conforming Bids from potential purchasers of the
Property. On or prior to the last day of the Initial Marketing
Period, Lessee shall deliver to Lessor any Conforming Bid
selected by Lessee (the "Initial Bid"). If the purchase price
specified in the Initial Bid is equal to or greater than the sum
of the total Tranche B Proportionate Share and the total Tranche
C Proportionate Share of the Outstanding Lease Amount, Lessor
shall accept such bid and Lessee shall have no further
obligations to solicit additional bids.
(ii) Secondary Marketing Period. If Lessee does not
submit an Initial Bid or if the purchase price specified in the
Initial Bid is less than the sum of the total Tranche B
Proportionate Share and the total Tranche C Proportionate Share
of the Outstanding Lease Amount, Lessor may reject such bid and
Lessee shall, during the period which begins on the day
following the Initial Marketing Period and ends on the date two
(2) months prior to the Expiration Date of the Lease Agreement
(the "Secondary Marketing Period"):
(A) Use its best efforts to solicit additional
Conforming Bids, including the engagement of experienced
and knowledgeable brokers;
(B) Furnish to each Lessor Party copies of all
bids and otherwise provide each Lessor Party with such
information relating to the marketing of the Property as
such Person may reasonably request in writing;
(C) Agree to provide to all potential purchasers
all customary seller's indemnities (including
environmental indemnities), representations and
warranties regarding the Property (including the title
to, except for Lessor Liens, and condition of the
Property);
(D) Furnish to each Lessor Party copies of
environmental reports, architect's certificates,
licenses, permits and other evidence reasonably
requested by such Person to establish that no Default
has occurred and is continuing under the Lease
Agreement;
(E) Permit any Lessor Party or potential
purchaser to inspect the Property and the maintenance
records for the Property upon reasonable prior written
notice and during normal business hours and provide to
each such Person all information regarding the Property
reasonably requested by such Person in writing;
(F) Take all other commercially reasonable steps
to secure the best price for the Property; and
(G) Submit to Lessor on or prior to the last day
of the Secondary Marketing Period any Conforming Bid
selected by Lessee with a purchase price which is equal
to or greater than the sum of the total Tranche B
Proportionate Share and the total Tranche C
Proportionate
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366
Share of the Outstanding Lease Amount or, if no such
Conforming Bid was received by Lessee, the highest
Conforming Bid received by Lessee during the Secondary
Marketing Period.
During the Secondary Marketing Period, any Lessor Party shall
have the right to submit one or more bids or solicit bids from other
Persons.
(c) Conforming Bids. Each bid must meet each of the following
requirements (each such bid to be referred to herein as a "Conforming
Bid"):
(i) The bid may be submitted by any Person other than
(A) a Person which is an Affiliate of Lessee or (B) a Person
which has an agreement (whether express or implied) with Lessee
or any of its Affiliates to sell, lease or otherwise make
available to Lessee or any of its Affiliates any portion of the
Property;
(ii) The bidder must agree in writing to purchase the
Property on the Expiration Date of the Lease Agreement for a
purchase price to be paid in cash which is not less than the
lesser of (A) the sum of the total Tranche B Proportionate Share
and the total Tranche C Proportionate Share of the Outstanding
Lease Amount on such date and (B) the Fair Market Value of the
Property on such date;
(iii) The bidder must agree to purchase the Property "as
is" without any representations, warranties or indemnities,
except for (A) any representations, warranties or indemnities
provided by Lessor and Lessee pursuant to Subparagraph 4.01(b)
and (B) any representations, warranties or indemnities provided
by Lessee pursuant to clause (ii)(C) of Subparagraph 3.02(b);
and
(iv) The bidder must agree to be bound by the other
terms and conditions of this Agreement applicable to bidders.
(d) Lessor's Obligation to Accept Bids. If, at any time on or
prior to the last day of the Secondary Marketing Period, Lessee submits
to Lessor a Conforming Bid under this Paragraph 3.02 with a purchase
price which is equal to or greater than the sum of the total Tranche B
Proportionate Share and the total Tranche C Proportionate Share of the
Outstanding Lease Amount, Lessor shall accept such bid. If Lessee
submits to Lessor a Conforming Bid under this Paragraph 3.02 with a
purchase price which is less than the sum of the total Tranche B
Proportionate Share and the total Tranche C Proportionate Share of the
Outstanding Lease Amount, Lessor shall not accept such bid unless so
directed by Required Participants. If Lessee fails to submit a bid to
Lessor on or prior to the last day of the Secondary Marketing Period
which Lessor is so required to accept, Lessor shall retain the Property
after the Expiration Date of the Lease Agreement; provided, however,
that Lessee's payment obligations on such Expiration Date shall be
limited to the amounts payable pursuant to clause (iii) of Subparagraph
4.06(a) if (i) Lessor retains the Property after Lessee submits a
Conforming Bid on or prior to the last day of the Secondary Marketing
Period in accordance with clause (ii) of Subparagraph 3.02(b) and (ii)
the Marketing Option has not terminated prior to such Expiration Date
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367
pursuant to Subparagraph 3.02(f). Lessor shall notify Lessee of Lessor's
election to retain the Property by delivering to Lessee, at least ten
(10) days prior to the Expiration Date of the Lease Agreement, a written
notice of such election.
(e) Purchase Price. If Lessor accepts any bid by any Person,
such Person (the "Designated Purchaser") shall pay to Lessor on the
Expiration Date of the Lease Agreement, as the purchase price for the
Property, the amount set forth in such bid as the purchase price.
(f) Termination of the Marketing Option. Lessee's right to
exercise the Marketing Option shall immediately terminate and Lessee
shall purchase the Property on the Expiration Date of the Lease
Agreement pursuant to Paragraph 3.03 if (i) Lessee fails to comply with
any of its obligations under this Paragraph 3.02; (ii) a Marketing
Option Event of Default under the Lease Agreement occurs after Lessee
delivers the Notice of Marketing Option Exercise; (iii) the conditions
precedent set forth in Paragraph 3.04 of the Participation Agreement are
not satisfied on the Expiration Date of the Lease Agreement (unless the
only event or condition causing such conditions not to be so satisfied
is the occurrence of a Non-Marketing Option Event of Default under the
Lease Agreement); or (iv) the Designated Purchaser fails to consummate
the purchase of the Property on the Expiration Date of the Lease
Agreement in accordance with its accepted bid and this Agreement,
without regard to the reason for such failure (except as otherwise
provided in the following proviso); provided, however, that, if the
Designated Purchaser fails to consummate the purchase of the Property on
the Expiration Date solely due to Lessor's failure to remove Lessor
Liens or deliver the required deed and bill of sale or other documents
required to be delivered by Lessor hereunder, Lessee's right to exercise
the Marketing Option shall not terminate, Lessee shall not be required
to purchase the Property on the Expiration Date and Lessee's payment
obligations on the Expiration Date shall be limited to the amounts set
forth in clause (ii) of Subparagraph 4.06(a).
(g) Residual Value Guaranty Amount and Indemnity Amount. Unless
Lessee's right to exercise the Marketing Option has terminated and
Lessee is required to purchase the Property on the Expiration Date of
the Lease Agreement pursuant to Paragraph 3.03, Lessee shall pay to
Lessor on such Expiration Date the following:
(i) An amount equal to the total Tranche A Proportionate
Share of the Outstanding Lease Amount under on such date (the
"Residual Value Guaranty Amount"); and
(ii) An amount equal to the decrease, if any, between
the Commencement Date and the Expiration Date of the Lease
Agreement in the Fair Market Value of the Property caused by (A)
any representation or warranty of Lessee or any of its
Affiliates regarding the Property set forth in any of the
Operative Documents proving to be false or inaccurate when made,
(B) the existence of, or the failure of Lessee to pay any
Governmental Charge, Indebtedness or other obligation which
might give rise to, any Liens in the Property (other than
Permitted Property Liens), (C) the failure of Lessee to complete
any New Improvements or any Modifications or (D) any other
failure of
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Lessee to comply with any of its obligations regarding the
Property set forth in any of the Operative Documents (the
"Indemnity Amount");
Provided, however, that (A) Lessee shall not be obligated to pay any
Residual Value Guaranty Amount or Indemnity Amount if the purchase price paid to
Lessor equals or exceeds the Outstanding Lease Amount on such date and (B) the
sum of any Residual Value Guaranty Amount and Indemnity Amount payable to Lessor
on the Expiration Date of the Lease Agreement shall not exceed the deficiency,
if any, between such Outstanding Lease Amount and such purchase price.
(h) Determination of Fair Market Value and Indemnity Amount. If
the purchase price specified in the Initial Bid is less than the sum of
the total Tranche B Proportionate Share and the total Tranche C
Proportionate Share of the Outstanding Lease Amount, Lessor may, on or
prior to the last day of the Secondary Marketing Period (if Lessee has
not previously delivered to Lessor a Conforming Bid with a purchase
price equal to or greater than the sum of the total Tranche B
Proportionate Share and the total Tranche C Proportionate Share of the
Outstanding Lease Amount), deliver to Lessee a written notice of
Lessor's determination of the current Fair Market Value of the Property
and the Indemnity Amount. To determine such amounts, Lessor shall obtain
Appraisals of the Property which set forth:
(i) A current Appraisal of the Fair Market Value of the
Property in its then existing condition (the "Current
Appraisal"); and
(ii) An Appraisal of the Fair Market Value of the
Property which assumes that (A) all representations and
warranties regarding the Property made by Lessee or any of its
Affiliates in any of the Operative Documents were true and
correct when made; (B) Lessee has maintained the Property in
compliance with all applicable Governmental Rules, Insurance
Requirements and the Operative Documents; (C) Lessee has
completed all Modifications and any other New Improvements in a
good and workmanlike manner and otherwise as required by the
Operative Documents; (D) Lessee has repaired the Property as
required by the Operative Documents following any Casualty; (E)
Lessee has restored the Property as required by the Operative
Documents following any Condemnation; (F) Lessee has paid all
Governmental Charges, Indebtedness and other obligations which,
if unpaid, might give rise to a Lien (other than a Lessor Lien)
on the Property; (G) Lessee has removed all Liens on the
Property except for Permitted Property Liens and Lessor Liens;
and (H) Lessee has performed all of its other obligations as
required by the Operative Documents (the "Assumed Appraisal").
In the absence of manifest error, (A) the Current Appraisal shall
constitute the current Fair Market Value of the Property and (B) the
difference between the Current Appraisal and the Assumed Appraisal shall
constitute the Indemnity Amount if the Current Appraisal is less than
the Assumed Appraisal.
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(i) Lessee not an Agent. Lessee shall not be an agent for any of
the Lessor Parties in arranging for a purchaser of the Property. No
Lessor Party shall be bound by any acts of Lessee.
(j) Excess Proceeds. If, on the Expiration Date of the Lease
Agreement, after the application by Lessor of all amounts received by
Lessor on such date to the Outstanding Lease Amount, all unpaid Rent
accrued through or due and payable on or prior to such date and all
other amounts, if any, due and payable by Lessee under the Operative
Documents on or prior to such date, any excess amount remains, Lessor
shall pay such excess amount to Lessee.
(k) Creditworthiness of Designated Purchaser. Lessee assumes all
responsibility for determining the creditworthiness of any potential
purchaser on any bid submitted by Lessee to Lessor hereunder. If, after
any purchase by a Designated Purchaser hereunder, the purchase price
paid by such Designated Purchaser is recovered from any Lessor Party,
Lessee shall reimburse such Lessor Party for such recovery unless such
recovery is due solely to a material misrepresentation or covenant
breach by such Lessor Party.
(l) Exercise of Marketing Option After Non-Marketing Option
Event of Default. If Lessor notifies Lessee pursuant to Subparagraph
5.03(a) or Subparagraph 5.04(a) of the Lease Agreement that Lessor is
terminating the Lease Agreement on a Termination Date which is prior to
the Scheduled Expiration Date of the Lease Agreement and the only basis
for such early termination is the occurrence of a Non-Marketing Option
Event of Default, Lessee may, subject to Paragraph 3.01, elect to
exercise the Marketing Option if, not later than ten (10) Business Days
after it receives from Lessor such notice of early termination, it (i)
delivers to Lessor a Notice of Marketing Option Exercise, (ii) delivers
to Agent (A) a Cash Collateral Agreement in form and substance
reasonably satisfactory to Lessor and Agent and (B) Cash Collateral in
an amount not less than 105% of the total Tranche A Proportionate Share
of the Outstanding Lease Amount, and (iii) delivers to Lessor an opinion
in form and substance reasonably satisfactory to Lessor regarding the
Cash Collateral Agreement and Lessor's security interest in such Cash
Collateral and (iv) takes such other actions as may be necessary to
grant to Agent first priority perfected security interests in such Cash
Collateral in accordance with the Cash Collateral Agreement. Upon the
delivery by Lessee to Lessor of a Notice of Marketing Option Exercise
and satisfaction of the Cash Collateral requirements set forth in the
preceding sentence of this Subparagraph 3.02(l), the Expiration Date of
the Lease Agreement shall, if the conditions to the exercise of the
Marketing Option set forth in Paragraph 3.01 are satisfied, be extended
to the first Business Day that is six (6) months after the date of
receipt by Lessor of such Notice of Marketing Option Exercise, provided,
however, that in no event shall the Expiration Date of the Lease
Agreement be extended beyond the Scheduled Expiration Date. Any exercise
by Lessee of the Marketing Option pursuant to this Subparagraph 3.02(l)
shall be subject to the terms and conditions otherwise set forth in this
Agreement.
(m) Lessor's Obligation to Sell. If Lessor retains the Property
after the Expiration Date for any reason under the Operative Documents
without a judicial or non-
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judicial foreclosure sale or a deed-in-lieu of foreclosure from Lessee,
Lessor thereafter shall use commercially reasonable efforts to sell the
Property in a reasonable time to one or more unrelated third parties for
the Fair Market Value of the Property; provided, however that Lessor
shall have no obligation to sell the Property at a time, or in a manner,
that would adversely affect the Lessor Parties' ability to be paid in
full the Outstanding Lease Amount, all other amounts payable to the
Lessor Parties under the Operative Documents (including reasonable costs
of maintaining, managing and selling the Property) and carrying costs
for the Outstanding Lease Amount and such other amounts accruing at the
Base Rate. Following such sale, Lessor shall pay to Lessee any amounts
received by Lessor in excess of the amounts referred to in the proviso
to the preceding sentence.
3.03. Expiration Date Purchase Option.
(a) General. If (i) Lessee elects to exercise the Expiration Date
Purchase Option by delivering to Lessor a Notice of Expiration Date
Purchase Option Exercise pursuant to Paragraph 3.01; (ii) Lessee elects
to exercise the Marketing Option by delivering to Lessor a Notice of
Marketing Option Exercise pursuant to Paragraph 3.01 but the Marketing
Option terminates pursuant to Subparagraph 3.02(f); or (iii) Lessee
fails to deliver to Lessor either notice as required by Paragraph 3.01;
Lessee shall purchase the Property on the Expiration Date of the Lease
Agreement and otherwise comply, or cause compliance with, the
requirements of this Paragraph 3.03 and the other applicable provisions
of this Agreement.
(b) Purchase Price. Lessee shall pay to Lessor on the Expiration
Date of the Lease Agreement, as the purchase price for the Property, an
amount equal to the Outstanding Lease Amount under on such date.
SECTION 4. TERMS OF ALL PURCHASES.
4.01. Representations and Warranties of Parties.
(a) Representations and Warranties of Certain Purchasers. Each
Designated Purchaser shall represent and warrant to Lessor on the
Expiration Date of the Lease Agreement (or, in the case of a purchase of
a portion of the Property pursuant to the Partial Purchase Option, on
the applicable Partial Purchase Date) as follows:
(i) Such Person is a legal entity duly organized,
validly existing and in good standing under the laws of its
state of organization or an individual with legal capacity to
purchase the Property (or, in the case of a purchase of a
portion of the Property pursuant to the Partial Purchase Option,
the portion to be purchased).
(ii) The execution, delivery and performance by such
Person of each document, instrument and agreement executed, or to
be executed, by such Person in connection with its purchase of
the Property (or, in the case of a purchase of a
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portion of the Property pursuant to the Partial Purchase Option,
the portion to be purchased) (the "Purchase Documents") and the
consummation of the transactions contemplated thereby (A) are
within the power of such Person and (B) have been duly
authorized by all necessary actions on the part of such Person.
(iii) Each Purchase Document executed, or to be
executed, by such Person has been, or will be, duly executed and
delivered by such Person and constitutes, or will constitute, a
legal, valid and binding obligation of such Person, enforceable
against such Person in accordance with its terms, except as
limited by bankruptcy, insolvency or other laws of general
application relating to or affecting the enforcement of
creditors' rights generally and general principles of equity.
(iv) Such Person has not (A) made a general assignment for
the benefit of creditors, (B) filed any voluntary petition in
bankruptcy or suffered the filing of any involuntary petition by
such Person's creditors, (C) suffered the appointment of a
receiver to take possession of all, or substantially all, of such
Person 's assets, (D) suffered the attachment or other judicial
seizure of all, or substantially all, of such Person 's assets,
(E) admitted in writing its inability to pay its debts as they
come due, or (F) made an offer of settlement, extension or
composition to its creditors generally.
(v) Such Person is not a "party in interest" within the
meaning of Section 3(14) of the ERISA, with respect to any
investor in or beneficiary of Lessor.
(b) Representations and Warranties of Lessor and Lessee. Each of
Lessor and Lessee shall represent and warrant to each purchaser of the
Property, whether Lessee, an Assignee Purchaser or a Designated
Purchaser (a "Purchaser"), on the Expiration Date of the Lease Agreement
as follows:
(i) Such Person is a corporation duly organized, validly
existing and in good standing under the laws of its state of
incorporation.
(ii) The execution, delivery and performance by such
Person of each Purchase Document executed, or to be executed, by
such Person and the consummation of the transactions
contemplated thereby (A) are within the power of such Person and
(B) have been duly authorized by all necessary actions on the
part of such Person.
(iii) Each Purchase Document executed, or to be
executed, by such Person has been, or will be, duly executed and
delivered by such Person and constitutes, or will constitute, a
legal, valid and binding obligation of such Person, enforceable
against such Person in accordance with its terms, except as
limited by bankruptcy, insolvency or other laws of general
application relating to or affecting the enforcement of
creditors' rights generally and general principles of equity.
(iv) Such Person has not (A) made a general assignment
for the benefit of creditors, (B) filed any voluntary petition
in bankruptcy or suffered the filing of
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any involuntary petition by such Person's creditors, (C)
suffered the appointment of a receiver to take possession of
all, or substantially all, of such Person's assets, (D) suffered
the attachment or other judicial seizure of all, or
substantially all, of such Person's assets, (E) admitted in
writing its inability to pay its debts as they come due, or (F)
made an offer of settlement, extension or composition to its
creditors generally.
In addition to the foregoing, (A) Lessee shall represent and warrant to
the Designated Purchaser (or Lessor if Lessor is to retain the Property)
on the Expiration Date of the Lease Agreement that no Liens are attached
to the Property, except for Permitted Property Liens, and (B) Lessor
shall represent and warrant to Purchaser on the Expiration Date of the
Lease Agreement (or, in the case of a purchase of a portion of the
Property pursuant to the Partial Purchase Option, on the applicable
Partial Purchase Date) that no Lessor Liens are attached to the Property
(or, in the case of a purchase of a portion of the Property pursuant to
the Partial Purchase Option, the portion to be purchased). Except for
the foregoing representations and warranties to be made by Lessor on the
Expiration Date of the Lease Agreement (or, in the case of a purchase of
a portion of the Property pursuant to the Partial Purchase Option, on
the applicable Partial Purchase Date), no Lessor Party shall make any
representation or warranty regarding the Property or the sale of the
Property. Lessee shall make such additional representations and
warranties as it may be required to make pursuant to clause (ii) of
Subparagraph 3.02(b).
(c) Survival of Representations and Warranties. The
representations and warranties of Purchaser, Lessor and Lessee shall
survive for a period of twelve (12) months after the Expiration Date of
the Lease Agreement (or, in the case of a purchase of a portion of the
Property pursuant to the Partial Purchase Option, after the applicable
Partial Purchase Date). Any claim which any such party may have at any
time against any other such party for a breach of any such
representation or warranty, whether known or unknown, which is not
asserted by written notice within such twelve (12) month period shall
not be valid or effective, and the party shall have no liability with
respect thereto.
4.02. "As Is" Purchase. All purchases of the Property hereunder shall be
"as is, with all faults" and without any representations, warranties or
indemnities except for any representations, warranties or indemnities provided
by Lessee pursuant to clause (ii)(C) of Subparagraph 3.02(b) or by Lessor or
Lessee pursuant to Subparagraph 4.01(b). Each Purchaser shall specifically
acknowledge and agree that Lessor is selling and such Purchaser is purchasing
the Property on an "as is, with all faults" basis and that such Purchaser is not
relying on any representations or warranties of any kind whatsoever, express or
implied, from any Lessor Party, its agents, or brokers as to any matters
concerning the Property (except for any representations and warranties provided
by Lessor pursuant to Subparagraph 4.01(b)), including (a) the condition of the
Property (including any Improvements to the Property made prior to the
Commencement Date or during the Term of the Lease Agreement); (b) title to the
Property (including possession of the Property by any Person or the existence of
any Lien or any other right, title or interest in or to any of the Property in
favor of any Person); (c) the value, habitability, usability, design, operation
or fitness for use of the Property; (d) the availability or adequacy of
utilities and other services to the Property; (e) any latent, hidden or patent
defect in the Property; (f) the zoning or
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status of the Property or any other restrictions on the use of the Property; (g)
the economics of the Property; (h) any Casualty or Condemnation; or (i) the
compliance of the Property with any applicable Governmental Rule or Insurance
Requirement.
4.03. Release. Without limiting the foregoing, each Purchaser shall, on
behalf of itself and its successors and assigns, waive its right to recover
from, and forever release and discharge, Lessor and the other Indemnitees from
any and all demands, claims, legal or administrative proceedings, losses,
liabilities, damages, penalties, fines, liens, judgments, costs or expenses
whatsoever (including attorneys' fees and costs), whether direct or indirect,
known or unknown, foreseen or unforeseen, that may arise on account of or in any
way be connected with the physical condition of the Property or any Governmental
Rule applicable thereto, including any Environment Law. Each Purchaser shall
expressly waive the benefits of Section 1542 of the California Civil Code, which
provides that, "a general release does not extend to claims which the creditor
does not know or expect to exist in his favor at the time of executing the
release, which if known to him must have materially affected the settlement with
the debtor."
4.04. Permits, Approvals, Etc. Lessee shall obtain all permits, licenses
and approvals from and make all filings with Governmental Authorities and other
Persons, comply and cause compliance with all applicable Governmental Rules and
take all other actions required for the marketing, purchase and sale of the
Property.
4.05 Costs. Lessee shall pay directly, without deduction from the
purchase price or any other amount payable to Lessor hereunder, all costs and
expenses of Lessee and Lessor associated with the marketing and sale of the
Property, including brokers' fees and commissions; title insurance premiums;
survey charges; utility, tax and other prorations; fees and expenses of
environmental consultants and attorneys; appraisal costs; escrow fees; recording
fees; documentary, transfer and other taxes; and all other fees, costs and
expenses which might otherwise be deducted from the purchase price or any other
amount payable to the Lessor Parties hereunder.
4.06. Lessee's Expiration Date and Partial Purchase Date Payment
Obligations.
(a) Expiration Date. On the Expiration Date of the Lease
Agreement, Lessee shall pay to Lessor the following:
(i) Purchase by Lessee. If the Property is to be
purchased by Lessee or an Assignee Purchaser on such date, (i)
the purchase price payable by Lessee, (ii) all unpaid Rent
accrued through or due and payable on or prior to such date and
(iii) all other amounts, if any, due and payable by Lessee under
the Operative Documents on or prior to such date;
(ii) Purchase by a Designated Purchaser. If the Property
is to be purchased by a Designated Purchaser on such date, (i)
the Residual Value Guaranty Amount (subject to the provisos set
forth at the end of Subparagraph 3.02(g)), (ii) the Indemnity
Amount (subject to the provisos set forth at the end of
Subparagraph 3.02(g)), (iii) all unpaid Rent accrued through or
due and payable
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on or prior to such date and (iv) all other amounts, if any, due
and payable by Lessee under the Operative Documents on or prior
to such date; or
(iii) Retention by Lessor. If the Property is to be
retained by Lessor on such date pursuant to Subparagraph
3.02(d), (i) the Residual Value Guaranty Amount, (ii) the
Indemnity Amount, (iii) all unpaid Rent accrued through or due
and payable on or prior to such date and (iv) all other amounts,
if any, due and payable by Lessee under the Operative Documents
on or prior to such date.
(b) Partial Purchase Date. On any Partial Purchase Date, Lessee
shall pay to Lessor (i) the purchase price for the Tracts of Property to
be purchased on such date, (ii) all unpaid Rent attributable to such
Tracts of Property accrued through or due and payable on or prior to
such date and (iii) all other amounts attributable to such Tracts of
Property , if any, due and payable by Lessee under the Operative
Documents on or prior to such date.
4.07. Lessor Liens. Lessor shall remove all Lessor Liens from the
Property before the Expiration Date of the Lease Agreement (or, in the case of a
purchase of a portion of the Property pursuant to the Partial Purchase Option,
from the portion to be purchased before the applicable Partial Purchase Date).
4.08. Transfer Documents.
(a) Expiration Date.
(i) Lessor. Subject to receipt by Lessor on the
Expiration Date of the Lease Agreement of the full amount of the
following, without any setoff, deduction or reduction of any
kind:
(A) In the case of a transfer to Lessee or an
Assignee Purchaser, all amounts payable by Lessee
pursuant to clause (i) of Subparagraph 4.06(a); or
(B) In the case of a transfer to a Designated
Purchaser, (1) the purchase price payable by the
Designated Purchaser and (2) all amounts payable by
Lessee pursuant to clause (ii) of Subparagraph 4.06(a);
Lessor shall transfer its interest in the Property to Purchaser
on the Expiration Date of the Lease Agreement (unless Lessor is
to retain the Property) by executing and delivering to Purchaser
a Deed in substantially the form of Exhibit D-1, an
Acknowledgment of Disclaimer of Representations and Warranties
in substantially the form of Exhibit D-2, a Bill of Sale in
substantially the form of Exhibit E and such other documents,
instruments and agreements as such Person may reasonably
request.
(ii) Lessee. On the Expiration Date of the Lease
Agreement, unless Lessee is to purchase the Property, Lessee
shall transfer its interest in the Property to the Designated
Purchaser or the Assignee Purchaser (or Lessor if Lessor is to
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retain the Property pursuant to Paragraph 3.02(d)) by executing
and delivering to such Person a Deed in substantially the form
of Exhibit F, a Bill of Sale in substantially the form of
Exhibit G and such other documents, instruments and agreements
as such Person may reasonably request.
(b) Partial Purchase Date. Subject to receipt by Lessor on any
Partial Purchase Date of all amounts payable by Lessee pursuant to
Subparagraph 4.06(b), without any setoff, deduction or reduction of any
kind, Lessor shall transfer its interest in the Tracts of Property to be
purchased on such date to Lessee by executing and delivering to Lessee a
Deed in substantially the form of Exhibit D, a Bill of Sale in
substantially the form of Exhibit E and such other documents,
instruments and agreements as Lessee may reasonably request
4.09. Casualty and Condemnation Proceeds. If, on the Expiration Date of
the Lease Agreement, any Casualty and Condemnation Proceeds are held by Lessor
in a Repair and Restoration Account or otherwise, Lessor shall (a) if Lessee is
to purchase the Property on the Expiration Date of the Lease Agreement and
Lessee shall so direct, apply such proceeds to the purchase price to be paid by
Lessee or (b) in all other cases, release such proceeds to Lessee; provided,
however, that Lessor shall not have any obligation so to apply or release such
proceeds unless Lessee and/or any Designated Purchaser has complied with all of
the terms and conditions of this Agreement.
4.10. Payments. Purchaser and Lessee shall make all payments in lawful
money of the United States and in same day or immediately available funds not
later than 11:00 a.m. on the date due.
4.11. Environmental Reports. Lessee shall obtain and deliver to Lessor,
not later than twenty (20) days prior to the Expiration Date of the Lease
Agreement (or, in the case of a purchase of a portion of the Property pursuant
to the Partial Purchase Option, prior to the applicable Partial Purchase Date),
environmental reports with respect to the Property (or, in the case of a
purchase of a portion of the Property pursuant to the Partial Purchase Option,
with respect to the applicable portion thereof) prepared by environmental
consultants acceptable to Lessor.
4.12. Further Assurances. Lessee shall, and shall cause any Designated
Purchaser to, execute and deliver such documents, instruments and agreements and
take such other actions as Lessor may reasonably request to effect the purposes
of this Agreement and comply with the terms hereof. Similarly, Lessor shall
execute and deliver such documents, instruments and agreements and take such
other actions as Lessee or a Designated Purchaser may reasonably request to
effect the purposes of this Agreement and comply with the terms hereof.
SECTION 5. MISCELLANEOUS.
5.01. Notices. Except as otherwise specified herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Lessee or Lessor under this
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Agreement shall be given as provided in Subparagraph 2.02(c) and Paragraph 7.01
of the Participation Agreement.
5.02. Waivers, Amendments. Any term, covenant, agreement or condition of
this Agreement may be amended or waived only as provided in the Participation
Agreement. No failure or delay by any Lessor Party in exercising any right
hereunder shall operate as a waiver thereof or of any other right nor shall any
single or partial exercise of any such right preclude any other further exercise
thereof or of any other right. Unless otherwise specified in any such waiver or
consent, a waiver or consent given hereunder shall be effective only in the
specific instance and for the specific purpose for which given.
5.03. Successors and Assigns.
(a) General. This Agreement shall be binding upon and inure to
the benefit of the Lessor Parties and Lessee and their permitted
successors and assigns; provided, however, that the Lessor Parties and
Lessee shall not sell, assign or delegate their respective rights and
obligations hereunder except as provided in the Participation Agreement
and in Subparagraph 5.03(b).
(b) Assignment by Lessee of Purchase Rights. Lessee may assign to
a third party (an "Assignee Purchaser") its right to purchase the
Property pursuant to the Partial Purchase Option, the Term Purchase
Option or the Expiration Date Purchase Option; provided, however, that
(i) such an assignment shall not relieve Lessee of its obligations to
consummate or cause the consummation of any such purchase in accordance
with the terms of this Agreement and (ii) Lessee assumes all
responsibility for determining the creditworthiness of any such Assignee
Purchaser. If, after any purchase by an Assignee Purchaser hereunder,
the purchase price paid by such Assignee Purchaser is recovered from any
Lessor Party, Lessee shall reimburse such Lessor Party for such recovery
unless such recovery is due solely to a material misrepresentation or
covenant breach by such Lessor Party.
5.04. No Third Party Rights. Nothing expressed in or to be implied from
this Agreement is intended to give, or shall be construed to give, any Person,
other than the Lessor Parties and Lessee and their permitted successors and
assigns, any benefit or legal or equitable right, remedy or claim under or by
virtue of this Agreement or under or by virtue of any provision herein.
5.05. Partial Invalidity. If at any time any provision of this Agreement
is or becomes illegal, invalid or unenforceable in any respect under the law or
any jurisdiction, neither the legality, validity or enforceability of the
remaining provisions of this Agreement nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
5.06. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California without reference to
conflicts of law rules.
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5.07. Counterparts. This Agreement may be executed in any number of
identical counterparts, any set of which signed by all the parties hereto shall
be deemed to constitute a complete, executed original for all purposes.
5.08. Nature of Lessee's Obligations.
(a) Independent Obligation. The obligation of Lessee to pay the
amounts payable by Lessee under this Agreement and the other Operative
Documents and to perform the other Lessee Obligation are absolute,
unconditional and irrevocable obligations which are separate and
independent of the obligations of the Lessor Parties under this
Agreement and the other Operative Documents and all other events and
circumstances, including the events and circumstances set forth in
Subparagraph 5.08(c).
(b) No Termination or Abatement. This Agreement and the other
Operative Documents and Lessee's obligation to pay all amounts hereunder
and to pay and perform all other Lessee Obligations shall continue in
full force and effect without abatement notwithstanding the occurrence
or existence of any event or circumstance, including any event or
circumstance set forth in Subparagraph 5.08(c).
(c) Full Payment and Performance. Lessee shall make all payments
under this Agreement and the other Operative Documents in the full
amounts and at the times required by the terms of this Agreement and the
other Operative Documents without setoff, deduction or reduction of any
kind and shall perform all other Lessee Obligations as and when
required, without regard to any event or circumstances whatsoever,
including (i) the condition of the Property (including any Improvements
to the Property made prior to the Commencement Date or during the Term
of the Lease Agreement); (ii) title to the Property (including
possession of the Property by any Person or the existence of any Lien or
any other right, title or interest in or to any of the Property in favor
of any Person); (iii) the value, habitability, usability, design,
operation or fitness for use of the Property; (iv) the availability or
adequacy of utilities and other services to the Property; (v) any
latent, hidden or patent defect in the Property; (vi) the zoning or
status of the Property or any other restrictions on the use of the
Property; (g) the economics of the Property; (vii) any Casualty or
Condemnation; (viii) the compliance of the Property with any applicable
Governmental Rule or Insurance Requirement; (ix) any failure by any
Lessor Party to perform any of its obligations under this Agreement or
any other Operative Document; or (x) the exercise by any Lessor Party of
any of its remedies under this Agreement or any other Operative
Document; provided, however, that (A) Lessee shall have no obligation to
purchase the Property on the Expiration Date if Lessor fails to remove
Lessor Liens or deliver the required deed and bill of sale or other
documents required to be delivered by Lessor hereunder and (B) this
Paragraph 5.08 shall not abrogate any right which Lessee may have to
recover damages from any Lessor Party for any material breach by such
Lessor Party of its obligations under this Agreement or any other
Operative Document to the extent permitted hereunder or thereunder.
[The signature page follows.]
17
378
IN WITNESS WHEREOF, Lessee and Lessor have caused this Agreement to be
executed as of the day and year first above written.
LESSEE: KLA-TENCOR CORPORATION
By:
--------------------------------
Name:
----------------------------
Title:
---------------------------
LESSOR: LEASE PLAN U.S.A., INC.
By:
--------------------------------
Name:
----------------------------
Title:
---------------------------
18
379
EXHIBIT A(1)
NOTICE OF TERM PURCHASE OPTION EXERCISE
[Date]
Lease Plan U.S.A., Inc.
c/o ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to the following:
(a) The Participation Agreement, dated as of November 12, 1997
(the "Participation Agreement"), among KLA-Tencor Corporation
("Lessee"), Lease Plan U.S.A., Inc. ("Lessor"), the financial
institutions listed in Schedule I to the Participation Agreement (the
"Participants") and ABN AMRO Bank N.V., as agent for the Participants
(in such capacity, "Agent");
(b) The Lease Agreement, dated as of November 12, 1997 (the
"Lease Agreement"), between Lessee and Lessor; and
(c) The Purchase Agreement, dated as of November 12, 1997 (the
"Purchase Agreement"), between Lessee and Lessor.
Unless otherwise indicated, all terms defined in the Participation Agreement
have the same respective meanings when used herein.
2. Pursuant to Subparagraph 4.01(a) of the Lease Agreement and Paragraph
2.01 of the Purchase Agreement, Lessee hereby irrevocably notifies Lessor that
Lessee is exercising its right to terminate the Lease Agreement prior to the
Scheduled Expiration Date of the Lease Agreement and purchase the Property on
[_________, ____] (which date is a Business Day and which date, after the
delivery of this notice, shall be the Expiration Date of the Lease Agreement).
IN WITNESS WHEREOF, Lessee has executed this Notice of Term Purchase
Option Exercise on the date set forth above.
KLA-TENCOR CORPORATION
By:
--------------------------------
Name:
----------------------------
Title:
---------------------------
A(1)-1
380
EXHIBIT A(2)
NOTICE OF PARTIAL PURCHASE OPTION EXERCISE
[Date]
Lease Plan U.S.A., Inc.
c/o ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to the following:
(a) The Participation Agreement, dated as of November 12, 1997
(the "Participation Agreement"), among KLA-Tencor Corporation
("Lessee"), Lease Plan U.S.A., Inc. ("Lessor"), the financial
institutions listed in Schedule I to the Participation Agreement (the
"Participants") and ABN AMRO Bank N.V., as agent for the Participants
(in such capacity, "Agent"); and
(b) The Purchase Agreement, dated as of November 12, 1997 (the
"Purchase Agreement"), between Lessee and Lessor.
Unless otherwise indicated, all terms defined in the Participation Agreement
have the same respective meanings when used herein.
2. Pursuant to Paragraph 2.02 of the Purchase Agreement, Lessee hereby
irrevocably notifies Lessor that Lessee is exercising its right to purchase a
portion of the Property as follows:
(a) The Tract[s] of Property to be purchased is [are]
________________; and
(b) The date on which such purchase is to occur is [_________,
____] (which date is a Business Day).
3. Lessee hereby certifies to Lessor, Agent and the Participants that,
on the date of this notice:
(a) The representations and warranties of Lessee set forth in
Paragraph 4.01 of the Participation Agreement and in the other Operative
Documents are true and correct in all material respects as if made on
such date (except for representations and warranties expressly made as
of a specified date, which shall be true as of such date);
(b) No Default has occurred and is continuing; and
(c) All of the Operative Documents are in full force and effect.
IN WITNESS WHEREOF, Lessee has executed this Notice of Partial Purchase
Option Exercise on the date set forth above.
KLA-TENCOR CORPORATION
By:
--------------------------------
Name:
----------------------------
Title:
---------------------------
A(2)-1
381
EXHIBIT B
NOTICE OF MARKETING OPTION EXERCISE
[Date]
Lease Plan U.S.A., Inc.
c/o ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to the following:
(a) The Participation Agreement, dated as of November 12, 1997
(the "Participation Agreement"), among KLA-Tencor Corporation
("Lessee"), Lease Plan U.S.A., Inc. ("Lessor"), the financial
institutions listed in Schedule I to the Participation Agreement (the
"Participants") and ABN AMRO Bank N.V., as agent for the Participants
(in such capacity, "Agent"); and
(b) The Purchase Agreement, dated as of November 12, 1997 (the
"Purchase Agreement"), between Lessee and Lessor.
Unless otherwise indicated, all terms defined in the Participation Agreement
have the same respective meanings when used herein.
2. Pursuant to Paragraph 3.01 of the Purchase Agreement, Lessee hereby
notifies Lessor that Lessee is electing to exercise the Marketing Option on the
Scheduled Expiration Date of the Lease Agreement of [_____, ____].
3. Lessee hereby certifies to Lessor, Agent and the Participants that,
on the date of this notice:
(a) The representations and warranties of Lessee set forth in
Paragraph 4.01 of the Participation Agreement and in the other Operative
Documents are true and correct in all material respects as if made on
such date (except for representations and warranties expressly made as
of a specified date, which shall be true as of such date);
(b) No Default (other than a Non-Marketing Option Event of
Default under the Lease Agreement) has occurred and is continuing; and
(c) All of the Operative Documents are in full force and effect.
B-1
382
IN WITNESS WHEREOF, Lessee has executed this Notice of Marketing Option
Exercise on the date set forth above.
KLA-TENCOR CORPORATION
By:
--------------------------------
Name:
----------------------------
Title:
---------------------------
B-2
383
EXHIBIT C
NOTICE OF EXPIRATION DATE PURCHASE OPTION EXERCISE
[Date]
Lease Plan U.S.A., Inc.
ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to the following:
(a) The Participation Agreement, dated as of November 12, 1997
(the "Participation Agreement"), among KLA-Tencor Corporation
("Lessee"), Lease Plan U.S.A., Inc. ("Lessor"), the financial
institutions listed in Schedule I to the Participation Agreement (the
"Participants") and ABN AMRO Bank N.V., as agent for the Participants
(in such capacity, "Agent"); and
(b) The Purchase Agreement, dated as of November 12, 1997 (the
"Purchase Agreement"), between Lessee and Lessor.
Unless otherwise indicated, all terms defined in the Participation Agreement
have the same respective meanings when used herein.
2. Pursuant to Paragraph 3.01 of the Purchase Agreement, Lessee hereby
notifies Lessor that Lessee is electing to exercise the Expiration Date Purchase
Option on the Scheduled Expiration Date of the Lease Agreement of [_____, ____].
IN WITNESS WHEREOF, Lessee has executed this Notice of Expiration Date
Purchase Option Exercise on the date set forth above.
KLA-TENCOR CORPORATION
By:
--------------------------------
Name:
----------------------------
Title:
---------------------------
C-1
384
EXHIBIT D(1)
RECORDING REQUESTED BY
WHEN RECORDED RETURN TO
AND MAIL TAX STATEMENTS TO:
[Purchser]
- ------------------------
- ------------------------
- ------------------------
Documentary Transfer Tax is not of public record and is shown on a separate
sheet attached to this deed.
- -------------------------------------------------------------------------------
QUITCLAIM DEED
FOR VALUABLE CONSIDERATION, the receipt of which is hereby
acknowledged, LEASE PLAN U.S.A., INC., a Georgia corporation ("Grantor"), hereby
releases, remises and forever quitclaims to [PURCHASER], a _____________
("Grantee"), the real property located in the City of San Jose, County of Santa
Clara, State of California, described on EXHIBIT A attached hereto and made a
part hereof (the "Property").
Executed as of _____, 19__.
LEASE PLAN U.S.A., INC.,
a Georgia corporation
By:
------------------------------
Its:
-----------------------------
D(1)-1
385
EXHIBIT A
LEGAL DESCRIPTION
Assessor's Parcel No.:
-----------------------
D(1)-2
386
State of
------------------------
County of
------------------------
On ___________________ before me, _________________________,
Date Name, Title of Officer
personally appeared
------------------------------------------------------,
Name(s) of signer(s)
( personally known to me -OR- ( proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the
instrument the person(s) or the entity upon
behalf of which the person(s) acted, executed
the instrument.
WITNESS my hand and official seal.
------------------------------------
D(1)-3
387
______________, 19__
Santa Clara County Recorder
Re: Request That Statement of Documentary
Transfer Tax Not be Recorded
Dear Sir:
Request is hereby made in accordance with Section 11932 of the
Revenue and Taxation Code that this statement of tax due not be recorded with
the attached deed but be affixed to the deed after recordation and before return
as directed on the deed.
The attached deed names LEASE PLAN U.S.A., an Georgia corporation, as
grantor, and [PURCHASER], a _________________, as grantee.
The property being transferred and described in the attached deed is
located in the City of San Jose and County of Santa Clara, State of California.
The amount of Documentary Transfer Tax due on the attached deed is
$__________, computed on full value of the property conveyed.
LEASE PLAN U.S.A.,
a Georgia corporation
By:
-------------------------------
Its:
------------------------------
D(1)-4
388
EXHIBIT D(2)
ACKNOWLEDGMENT AND DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
THIS ACKNOWLEDGMENT OF DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
(this "Certificate") is made as of ___________, 1997 by [PURCHASER], a
_____________ ("Grantee").
Contemporaneously with execution of this Certificate, LEASE PLAN U.S.A.,
INC., a Georgia corporation ("Lease Plan U.S.A."), is executing and delivering
to Grantee a Quitclaim Deed and a Bill of Sale (the foregoing documents and any
other documents to be executed and delivered to Grantee 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 " Property") pursuant to the terms of a Purchase
Agreement dated as of November 12, 1997 by and between Lease Plan U.S.A. and
KLA-Tencor Corporation, a Delaware corporation("KLA-Tencor").
Notwithstanding any provision contained in the Conveyancing Documents to
the contrary, Grantee acknowledges that Lease Plan U.S.A. is selling and Grantee
is purchasing the Property on an "as is, with all faults" basis and that Grantee
is not relying on any representations or warranties of any kind whatsoever,
express or implied, from Lease Plan U.S.A., its agents, or brokers as to any
matters concerning the Property including (a) the condition of the Property
(including any improvements to the Property); (b) title to the Property
(including possession of the Property by any individual or entity or the
existence of any lien or any other right, title or interest in or to any of the
Property in favor of any person, but excluding any Lessor Liens as defined in
that certain Participation Agreement dated as of November 12, 1997 among
KLA-Tencor, Lease Plan U.S.A., the Participants and ABN AMRO Bank N.V., as agent
for the Participants (in such capacity, "Agent")); (c) the value, habitability,
usability, design, operation or fitness for use of the Property; (d) the
availability or adequacy of utilities and other services to the Property; (e)
any latent, hidden or patent defect in the Property; (f) the zoning or status of
the Property or any other restrictions on the use of the Property; (g) the
economics of the Property; (h) any damage to, destruction or, or decrease in the
value of all or any portion of the Property or any condemnation or other taking
or sale of all or any portion of the Property, by or on account of any actual or
threatened eminent domain proceeding or other taking of action by any
governmental authority or other person have the power of eminent domain; or (i)
the compliance of the Property with any applicable law, rule, regulation,
ordinance, order, code, judgment or similar form of decision of any governmental
authority or any terms, conditions or requirements imposed by any policies of
insurance relating to the Property.
[See next page]
D(2)-1
389
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 Lease Plan U.S.A. is entitled to rely and is relying on
this Certificate.
EXECUTED as of ____________, 1997.
[PURCHASER],
a
-----------------
-------------------
-------------------
D(2)-2
390
EXHIBIT E
BILL OF SALE
FOR GOOD AND VALUABLE CONSIDERATION, the receipt of which is
hereby acknowledged, LEASE PLAN U.S.A., Inc., a Georgia corporation ("Seller")
does hereby sell, transfer and convey to [PURCHASER], a
_________________________ ("Purchaser"): 1) the Related Goods (as defined in
that certain Participation Agreement dated as of November 12, 1997 (the
"Participation Agreement") among KLA-Tencor Corporation ("KLA-Tencor"), Seller,
the Participants and ABN AMRO Bank N.V., as agent for the Participants (in such
capacity, "Agent")) in connection with that certain real property commonly known
as _______________, San Jose, California, including, without limitation, the
personal property itemized on SCHEDULE 1 attached hereto and incorporated herein
by this reference (the "Property"), and 2) all Appurtenant Rights, Related
Permits and Related Agreements as those terms are defined in the Participation
Agreement.
Seller is selling and Purchaser is purchasing the Property on an "as
is, with all faults" basis and Purchaser is not relying on any representations
or warranties of any kind whatsoever, express or implied, from Seller, its
agents, or brokers as to any matters concerning the Property including (a) the
condition of the Property; (b) title to the Property (including possession of
the Property by any individual or entity or the existence of any lien or any
other right, title or interest in or to any of the Property in favor of any
person but excluding any Lessor Liens as defined in the Participation
Agreement); (c) the value, habitability, usability, design, operation or fitness
for use of the Property; or (d) any latent, hidden or patent defect in the
Property.
Dated: ________, 19__ SELLER:
LEASE PLAN U.S.A., INC.
a Georgia corporation
By:
-------------------------------
Its:
-------------------------------
PURCHASER:
[PURCHASER]
a
---------------------------------
By:
-------------------------------
Its:
-------------------------------
E-1
391
SCHEDULE 1
PROPERTY
E-2
392
EXHIBIT F
RECORDING REQUESTED BY
WHEN RECORDED RETURN TO
AND MAIL TAX STATEMENTS TO:
- -------------------------
- -------------------------
Attention:
---------------
Documentary Transfer Tax is not of public record and is shown on a separate
sheet attached to this deed.
- -------------------------------------------------------------------------------
QUITCLAIM DEED
FOR VALUABLE CONSIDERATION, the receipt of which is hereby
acknowledged, KLA-TENCOR CORPORATION, a Delaware corporation ("Grantor"), hereby
releases, remises and forever quitclaims to [PURCHASER] ("Grantee"), the real
property located in the City of San Jose, County of Santa Clara, State of
California, described on EXHIBIT A attached hereto and made a part hereof (the
"Property").
Executed as of __________, 19__.
KLA-TENCOR CORPORATION,
a Delaware corporation
By:
--------------------------------
Its:
-------------------------------
F-1
393
EXHIBIT A
LEGAL DESCRIPTION
Assessor's Parcel No.:
------------------------
F-2
394
State of
------------------------
County of
-----------------------
On ___________________ before me, _________________________,
Date Name, Title of Officer
personally appeared ,
----------------------------------------
Name(s) of signer(s)
( personally known to me -OR- ( proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the
instrument the person(s) or the entity upon
behalf of which the person(s) acted, executed
the instrument.
WITNESS my hand and official seal.
-------------------------------------
F-3
395
_________ , 1997
Santa Clara County Recorder
Re: Request That Statement of Documentary
Transfer Tax Not be Recorded
Dear Sir:
Request is hereby made in accordance with Section 11932 of the
Revenue and Taxation Code that this statement of tax due not be recorded with
the attached deed but be affixed to the deed after recordation and before return
as directed on the deed.
The attached deed names KLA-TENCOR CORPORATION, a Delaware
corporation, as grantor, and [PURCHASER], as grantee.
The property being transferred and described in the attached deed is
located in the City of San Jose and County of Santa Clara, State of California.
The amount of Documentary Transfer Tax due on the attached deed is
$__________, computed on full value of the property conveyed.
KLA-TENCOR CORPORATION,
a Delaware corporation
By:
--------------------
Its:
--------------------
F-4
396
EXHIBIT G
BILL OF SALE
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, KLA-Tencor Corporation, a Delaware corporation
("Seller"), does hereby sell, transfer, and convey unto [PURCHASER] ("Buyer"):
1) without warranty, the Related Goods (as defined in that certain Participation
Agreement dated as of November 12, 1997 (the "Participation Agreement") among
Lease Plan U.S.A., Inc., Seller, the Participants and ABN AMRO Bank N.V., as
agent for the Participants (in such capacity, "Agent")) in connection with that
certain real property commonly known as _______________, San Jose, California,
including, without limitation, the personal property itemized on SCHEDULE 1
attached hereto and incorporated herein by this reference (the "Property"), and
2) all Appurtenant Rights, Related Permits and Related Agreements as those terms
are defined in the Participation Agreement.
DATED this ____ day of __________, 19__.
SELLER: KLA-Tencor Corporation,
a Delaware corporation
By:
---------------------------
Its:
--------------------------
G-1
397
SCHEDULE 1
PROPERTY
G-2
398
EXECUTION COPY
================================================================================
PURCHASE AGREEMENT
BETWEEN
KLA-TENCOR CORPORATION
AND
LEASE PLAN U.S.A., INC.
NOVEMBER 12, 1997
================================================================================
399
TABLE OF CONTENTS
Page
SECTION 1. INTERPRETATION............................................................2
1.01. Definitions...............................................................2
1.02. Rules of Construction.....................................................2
SECTION 2. OPTIONAL PURCHASE BY LESSEE DURING THE TERM...............................2
2.01. Term Purchase Option......................................................2
2.02. Partial Purchase Option...................................................3
SECTION 3. OBLIGATIONS OF LESSEE ON THE EXPIRATION DATE..............................4
3.01. Alternative...............................................................4
3.02. Marketing Option..........................................................4
3.03. Expiration Date Purchase Option..........................................10
SECTION 4. TERMS OF ALL PURCHASES...................................................10
4.01. Representations and Warranties of Parties................................10
4.02. As Is Purchase...........................................................12
4.03. Release..................................................................13
4.04. Permits, Approvals, Etc..................................................13
4.05. Costs....................................................................13
4.06. Lessee's Expiration Date and Partial Purchase Date Payment
Obligations..............................................................13
4.07. Lessor Liens.............................................................14
4.08. Transfer Documents.......................................................14
4.09. Casualty and Condemnation Proceeds.......................................15
4.10. Payments.................................................................15
4.11. Environmental Reports....................................................15
4.12. Further Assurances.......................................................15
SECTION 5. MISCELLANEOUS............................................................15
5.01. Notices..................................................................16
5.02. Waivers, Amendments......................................................16
5.03. Successors and Assigns...................................................16
5.04. No Third Party Rights....................................................16
5.05. Partial Invalidity.......................................................16
5.06. Governing Law............................................................16
i
400
Page
5.07. Counterparts.............................................................17
5.08. Nature of Lessee's Obligations...........................................17
EXHIBITS
A(1) Notice of Term Purchase Option Exercise (2.02)
A(2) Notice of Partial Purchase Option Exercise (2.02)
B Notice of Marketing Option Exercise (3.01)
C Notice of Expiration Date Purchase Option Exercise (2.02)
D(1) Deed (Lessor) (4.08(a))
D(2) Acknowledgment of Disclaimer of Representations and Warranties
(4.08(a))
E Bill of Sale (Lessor) (4.08(a))
F Deed (Lessee) ((4.08(b))
G Bill of Sale (Lessee) 4.08(b))
ii
401
ASSIGNMENT OF LEASE AGREEMENT AND PURCHASE AGREEMENT
THIS ASSIGNMENT OF LEASE AGREEMENT AND PURCHASE AGREEMENT (this
"Assignment" herein), dated as of November 12, 1997, is executed by:
(1) LEASE PLAN U.S.A., INC., a Georgia corporation ("Lessor")
in favor of
(2) ABN AMRO BANK N.V., as agent for the Participants under
the Participation Agreement referred to in Recital B below (in such
capacity, "Agent").
RECITALS
A. KLA-Tencor Corporation, a Delaware corporation ("Lessee"), has
requested Lessor and the financial institutions which are "Participants" under
the Participation Agreement referred to in Recital B below (such financial
institutions to be referred to collectively as the "Participants") to provide to
Lessee a certain lease facility. Pursuant to such facility:
(1) Lessor would (a) acquire certain property designated by
Lessee (either through purchase or lease), (b) lease to Lessee such
property and certain other property currently held by Lessor, (c)
appoint Lessee as Lessor's agent to make certain improvements to a
portion of such property, (d) make advances to finance such
improvements and to pay certain related expenses, and (e) grant to
Lessee the right to purchase such property; and
(2) The Participants would participate in such lease facility
by (a) funding the purchase prices and other advances to be made by
Lessor and (b) acquiring participation interests in the rental and
certain other payments to be made by Lessee.
B. Pursuant to a Participation Agreement dated of even date herewith
(the "Participation Agreement") among Lessee, Lessor, the Participants and
Agent, Lessor and the Participants have agreed to provide such lease facility
upon the terms and subject to the conditions set forth therein, including,
without limitation, the execution and delivery of (1) the Lease Agreement dated
as of November 12, 1997 between Lessee and Lessor (the "Lease Agreement"),
pursuant to which Lessee has leased from Lessor the lots, pieces, tracts and
parcels of land described in Exhibit A (the "Land") and the other property
described in the Lease Agreement (the "Property"), (2) the Purchase Agreement
dated as of November 12, 1997 between Lessee and Lessor (the "Purchase
Agreement"), pursuant to which Lessee may purchase the Property from Lessor
under certain circumstances, and (3) this Assignment.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
402
SECTION 1. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this Assignment or any
other Operative Document, each term set forth in Schedule 1.01 to the
Participation Agreement, when used in this Assignment or any other Operative
Document, shall have the respective meaning given to that term in such Schedule
1.01 or in the provision of this Assignment or other document, instrument or
agreement referenced in such Schedule 1.01.
1.02. Rules of Construction. Unless otherwise indicated in this
Assignment or any other Operative Document, the rules of construction set forth
in Schedule 1.02 to the Participation Agreement shall apply to this Assignment
and the other Operative Documents.
SECTION 2. ASSIGNMENT.
2.01. Assignment. As security for the Lessor Obligations, Lessor hereby
irrevocably and unconditionally grants, conveys, transfers and assigns to Agent,
for the benefit of the Participants and Agent, all estate, right, title and
interest of Lessor, whether now owned or hereafter acquired, in the Lease
Agreement and the Purchase Agreement, including all claims and rights to the
payment of money at any time arising in connection with any repudiation,
rejection or breach of either agreement by Lessee or a trustee or receiver of
Lessee in any bankruptcy, insolvency or similar proceeding.
2.02. Receipt of Rents, Etc. Lessor hereby irrevocably designates Agent
(or its designee) to receive all Rents and other payments to be made by Lessee
under the Lease Agreement and the Purchase Agreement. Lessor shall direct (and
hereby directs) Lessee to deliver to Agent (or its designee), at its address set
forth in the Participation Agreement or at such other address or to such other
Person as Agent shall designate, all such payments, and no delivery thereof by
Lessee shall be of any force or effect unless made to Agent (or its designee),
as herein provided. Lessor and Agent agree that Lessee, in making such payments
to Agent pursuant to the directions contained in this Assignment and in reliance
on such directions shall be deemed to have satisfied its obligation for such
payments under the Lease Agreement.
2.03. Irrevocability; Supplemental Instruments. Lessor agrees that (a)
this Assignment is irrevocable, (b) Lessor will not take any action under the
Lease Agreement or the Purchase Agreement or otherwise which is inconsistent
with this Assignment, (c) any action, assignment, designation or direction
inconsistent herewith shall be void and (d) Lessor will from time to time
execute and deliver all instruments of further assurance and do such further
acts as may be reasonably necessary or proper to carry out more effectively the
purpose of this Assignment.
2.04. Validity. Lessor represents, warrants, covenants and agrees that
(a) Lessor has not assigned or executed any assignment of, and will not assign
or execute any assignment of, Lessor's estate, right, title or interest in the
Lease Agreement or the Purchase Agreement to anyone other than Agent, (b) any
such assignment is void, and (c) Lessor has not taken any action that impairs
the rights of Agent hereunder.
2
403
2.05. Lessor Remains Liable. The assignment made hereby is made for the
purpose of securing the Lessor Obligations only and does not (a) impair or
diminish in any way the obligations of Lessor under the Lease Agreement or the
Purchase Agreement or (b) obligate Agent (or its designee) or any Participant to
perform any of the obligations of Lessor under the Lease Agreement or the
Purchase Agreement. This Assignment shall not operate to cause Agent (or its
designee) to be regarded as a mortgagee in possession.
2.06. Effect of Amendments. If the Lease Agreement or the Purchase
Agreement shall be amended, it shall continue to be subject to the provisions
hereof without the necessity of any further act by any of the parties hereto.
2.07. Absolute Assignment. Lessor has, subject to and in accordance
with the terms and conditions of this Assignment, assigned and transferred unto
Agent all of Lessor's right, title and interest in and to all Rents and other
amounts now or hereafter payable by Lessee under the Lease Agreement and the
Purchase Agreement, it being intended to establish an absolute transfer and
assignment, subject to and in accordance with the terms and conditions of this
Assignment, of all such Rents and other amounts to Agent and not merely to grant
a security interest therein. Subject to the Lease Agreement, Agent (or its
designee) may, in Lessor's name and stead, operate the Property and rent, lease
or let all or any portion of the Property to any party or parties at such rental
and upon such terms as Agent (or its designee) shall, in its discretion,
determine.
2.08. Receivers. If, notwithstanding the terms of this Assignment, a
petition or order for sequestration of rents, or the appointment of a receiver
or some similar judicial action or order is deemed required under applicable
California law to allow Agent to continue to collect the Rents and other amounts
payable by Lessee under the Lease Agreement or the Purchase Agreement, then it
is agreed by Lessor that any proof of claim or similar document filed by Agent
in connection with the breach or rejection of the Lease Agreement or the
Purchase Agreement by Lessee thereunder or the trustee of any lessee under any
federal or state bankruptcy, insolvency or other similar law shall, for the
purpose of perfecting Agent's rights, be deemed to constitute action required
under such California law. Upon the occurrence and during the continuance of an
Event of Default, Lessor hereby consents to the appointment of a receiver for
Lessor's interest in the Property without regard to the solvency of Lessor or to
the collateral that may be available for the satisfaction of the Lessor
Obligations.
SECTION 3. MISCELLANEOUS.
3.01. Notices. Except as otherwise specified herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Lessor or Agent under this Assignment shall be given as provided in Paragraph
7.01 of the Participation Agreement.
3.02. Waivers; Amendments. Any term, covenant, agreement or condition
of this Assignment may be amended or waived only as provided in the
Participation Agreement. No failure or delay by Agent in exercising any right
hereunder shall operate as a waiver thereof or of any other right nor shall any
single or partial exercise of any such right preclude any other further exercise
thereof or of any other right. Unless otherwise specified in any such waiver or
consent,
3
404
a waiver or consent given hereunder shall be effective only in the
specific instance and for the specific purpose for which given.
3.03. Successors and Assigns. This Assignment shall be binding upon and
inure to the benefit of the Lessor Parties and their permitted successors and
assigns; provided, however, that the Lessor Parties shall not sell, assign or
delegate their respective rights and obligations hereunder except as provided in
the Participation Agreement.
3.04. No Third Party Rights. Nothing expressed in or to be implied from
this Assignment is intended to give, or shall be construed to give, any Person,
other than the Lessor Parties and their permitted successors and assigns, any
benefit or legal or equitable right, remedy or claim under or by virtue of this
Assignment or under or by virtue of any provision herein.
3.05. Partial Invalidity. If at any time any provision of this
Assignment is or becomes illegal, invalid or unenforceable in any respect under
the law or any jurisdiction, neither the legality, validity or enforceability of
the remaining provisions of this Assignment nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
3.06. Governing Law. This Assignment shall be governed by and construed
in accordance with the laws of the State of California without reference to
conflicts of law rules.
3.07. Counterparts. This Assignment may be executed in any number of
identical counterparts, any set of which signed by all the parties hereto shall
be deemed to constitute a complete, executed original for all purposes.
[The signature page follows.]
4
405
IN WITNESS WHEREOF, Lessor has caused this Assignment to be
executed as of the day and year first above written.
LESSOR: LEASE PLAN U.S.A., INC.
By: _____________________________
Name: _______________________
Title: ______________________
5
406
STATE OF CALIFORNIA )
) ss
COUNTY OF __________________ )
On _____________, 1997, before me, ___________________ a
Notary Public in and for the State of California, personally appeared ,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s) or the entity on behalf of which the person(s) acted,
executed the instrument.
Witness my hand and official seal.
[SEAL]
__________________________
407
EXHIBIT A
LAND
A-1
408
EXHIBIT B
LESSEE'S CONSENT TO
ASSIGNMENT OF LEASE AGREEMENT AND PURCHASE AGREEMENT
November 12, 1997
Lease Plan U.S.A., Inc.
c/o ABN AMRO Bank N.V.
135 So. LaSalle Street, Suite 711
Chicago, IL 60603
ABN AMRO Bank N.V.,
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
1. Reference is made to the following:
(a) The Participation Agreement, dated as of November 12, 1997
(the "Participation Agreement"), among KLA-Tencor Corporation
("Lessee"), Lease Plan U.S.A., Inc. ("Lessor"), the financial
institutions listed in Schedule I to the Participation Agreement (the
"Participants") and ABN AMRO Bank N.V., as agent for the Participants
(in such capacity, "Agent");
(b) The Lease Agreement, dated as of November 12, 1997 (the
"Lease Agreement"), between Lessee and Lessor;
(c) The Purchase Agreement, dated as of November 12, 1997 (the
"Purchase Agreement"), between Lessee and Lessor; and
(d) The Assignment of Lease Agreement and Purchase Agreement,
dated as of November 12, 1997 (the "Assignment of Lease"), executed by
Lessor in favor of Agent.
Unless otherwise indicated, all terms defined in the Participation Agreement
have the same respective meanings when used herein.
2. Consent. Lessee hereby consents to the Assignment of Lease.
3. Payments. Lessee agrees to pay and deliver to Agent (or its
designee) all Rents and other amounts payable by Lessee under the Lease
Agreement and the Purchase Agreement in accordance with the terms thereof.
Lessee will not, for any reason whatsoever, seek to recover from Agent (or its
designee) any moneys paid to Agent (or its designee) by virtue of the Assignment
of Lease.
B-1
409
4. Lessee's Other Agreements. Lessee hereby further agrees with Lessor
and Agent as follows:
(a) Lessee agrees (i) to deliver to Agent (or its designee)
and Lessor, at their addresses set forth in the Participation Agreement
or at such other addresses as Agent or Lessor, as the case may be, may
designate, duplicate originals or copies of all notices, undertakings,
demands, statements, documents and other communications which Lessee is
required or permitted to deliver pursuant to the Lease Agreement, the
Purchase Agreement or the Assignment of Lease; (ii) that any notice
delivered or declaration made to Lessee by Agent (or its designee)
pursuant to the Lease Agreement or the Purchase Agreement shall be
effective as a notice given or declaration made to Lessee by Lessor;
(iii) that Agent (or its designee) shall not by reason of the
Assignment of Lease be subject to any liability or obligation under the
Lease Agreement or the Purchase Agreement except as set forth in the
Assignment of Lease; and (iv) that any waiver, consent or approval by
Lessor under the Lease Agreement or the Purchase Agreement shall not be
valid unless approved in writing by Agent (or its designee).
(b) Lessee agrees to remain obligated under the Lease
Agreement and the Purchase Agreement in accordance with their
respective terms, and to take no action to terminate (other than in
accordance with the terms thereof), annul, rescind or avoid the Lease
Agreement, the Purchase Agreement or this Consent or to abate, reduce,
offset, suspend or defer or make any counterclaim or raise any defense
(other than the defense of payment to Agent (or its designee)) with
respect to the Rents or other amounts payable thereunder or to cease
paying such amounts to Agent (or its designee) as provided herein.
(c) Lessee hereby agrees that upon the occurrence of any Event
of Default, Agent (or its designee) shall have the right to deliver a
notice of default under the Lease Agreement, which shall be effective
for all purposes under the Lease Agreement as if sent by Lessor.
(d) Lessee shall notify Agent (or its designee) at its address
specified in the Participation Agreement, or such other address as
Agent may designate, of any default by Lessor under the Lease Agreement
and agrees that no such default shall entitle Lessee to terminate
(other than in accordance with the terms of the Lease Agreement),
annul, rescind or avoid the Lease Agreement or reduce or abate the
Rents or other amounts payable thereunder.
5. Amendment or Termination; Agent's Designation. Lessee agrees that it
will not, unilaterally or by agreement, subordinate, amend, supplement, modify,
extend (except in accordance with the express terms thereof), discharge, waive
or terminate (other than in accordance with the terms thereof) the Lease
Agreement, the Purchase Agreement or this Consent without Agent's prior written
consent, and that any attempted subordination, amendment, supplement,
modification, extension, discharge, waiver or termination in violation of this
Section 5 without such consent shall be null and void. In the event that the
Lease Agreement or the Purchase Agreement shall be amended or supplemented as
herein permitted,
B-2
410
the Lease Agreement or the Purchase Agreement, as so amended or supplemented,
shall continue to be subject to the provisions of the Assignment of Lease and
this Consent without the necessity of any further act by any of the parties
thereto or hereto.
6. Continuing Obligations of Lessor and Lessee. Neither the execution
and delivery of the Assignment of Lease, nor any action or inaction on the part
of Agent shall impair or diminish any obligations of Lessor or Lessee under the
Lease Agreement or the Purchase Agreement, and shall not impose on Agent (or its
designee) any such obligations, nor shall it impose on Agent (or its designee) a
duty to produce Rents or cause Agent to be a mortgagee or pledgee in possession
for any purpose. Except as specifically set forth in this Consent, none of the
terms of the Assignment of Lease shall impose upon Lessee any greater
obligations than those set forth in the Lease Agreement, the Purchase Agreement
and the other Operative Documents.
7. Partial Invalidity. If at any time any provision of this Consent is
or becomes illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of the remaining
provisions of this Consent nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction shall in any way be affected
or impaired thereby.
8. Governing Law. This Consent shall be governed by and construed in
accordance with the laws of the State of California without reference to
conflicts of law rules.
[SIGNATURE PAGE FOLLOWS]
B-3
411
IN WITNESS WHEREOF, Lessee has executed this Consent on the date set
forth above.
LESSEE: KLA-TENCOR CORPORATION
By: _______________________________
Name: _________________________
Title: ________________________
B-4
412
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Thomas Y. Coleman, Esq.
Orrick, Herrington & Sutcliffe LLP
Old Federal Reserve Bank Building
400 Sansome Street
San Francisco, California 94111
================================================================================
ASSIGNMENT OF LEASE AGREEMENT
AND PURCHASE AGREEMENT
BY
LEASE PLAN U.S.A., INC.
IN FAVOR OF
ABN AMRO BANK N.V.,
AS AGENT FOR THE PARTICIPANTS
NOVEMBER 12, 1997
================================================================================
413
ASSIGNMENT OF LEASE AGREEMENT AND PURCHASE AGREEMENT
THIS ASSIGNMENT OF LEASE AGREEMENT AND PURCHASE AGREEMENT (this
"Assignment" herein), dated as of November 12, 1997, is executed by:
(1) LEASE PLAN U.S.A., INC., a Georgia corporation ("Lessor")
in favor of
(2) ABN AMRO BANK N.V., as agent for the Participants under the
Participation Agreement referred to in Recital B below (in such capacity,
"Agent").
RECITALS
A. KLA-Tencor Corporation, a Delaware corporation ("Lessee"), has
requested Lessor and the financial institutions which are "Participants" under
the Participation Agreement referred to in Recital B below (such financial
institutions to be referred to collectively as the "Participants") to provide to
Lessee a certain lease facility. Pursuant to such facility:
(1) Lessor would (a) acquire certain property designated by Lessee
(either through purchase or lease), (b) lease to Lessee such property and
certain other property currently held by Lessor, (c) appoint Lessee as Lessor's
agent to make certain improvements to a portion of such property, (d) make
advances to finance such improvements and to pay certain related expenses, and
(e) grant to Lessee the right to purchase such property; and
(2) The Participants would participate in such lease facility by (a)
funding the purchase prices and other advances to be made by Lessor and (b)
acquiring participation interests in the rental and certain other payments to be
made by Lessee.
B. Pursuant to a Participation Agreement dated of even date herewith
(the "Participation Agreement") among Lessee, Lessor, the Participants and
Agent, Lessor and the Participants have agreed to provide such lease facility
upon the terms and subject to the conditions set forth therein, including,
without limitation, the execution and delivery of (1) the Lease Agreement dated
as of November 12, 1997 between Lessee and Lessor (the "Lease Agreement"),
pursuant to which Lessee has leased from Lessor the lots, pieces, tracts and
parcels of land described in Exhibit A (the "Land") and the other property
described in the Lease Agreement (the "Property"), (2) the Purchase Agreement
dated as of November 12, 1997 between Lessee and Lessor (the "Purchase
Agreement"), pursuant to which Lessee may purchase the Property from Lessor
under certain circumstances, and (3) this Assignment.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
414
SECTION 1. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this Assignment or any
other Operative Document, each term set forth in Schedule 1.01 to the
Participation Agreement, when used in this Assignment or any other Operative
Document, shall have the respective meaning given to that term in such Schedule
1.01 or in the provision of this Assignment or other document, instrument or
agreement referenced in such Schedule 1.01.
1.02. Rules of Construction. Unless otherwise indicated in this
Assignment or any other Operative Document, the rules of construction set forth
in Schedule 1.02 to the Participation Agreement shall apply to this Assignment
and the other Operative Documents.
SECTION 2. ASSIGNMENT.
2.01. Assignment. As security for the Lessor Obligations, Lessor hereby
irrevocably and unconditionally grants, conveys, transfers and assigns to Agent,
for the benefit of the Participants and Agent, all estate, right, title and
interest of Lessor, whether now owned or hereafter acquired, in the Lease
Agreement and the Purchase Agreement, including all claims and rights to the
payment of money at any time arising in connection with any repudiation,
rejection or breach of either agreement by Lessee or a trustee or receiver of
Lessee in any bankruptcy, insolvency or similar proceeding.
2.02. Receipt of Rents, Etc. Lessor hereby irrevocably designates Agent (or
its designee) to receive all Rents and other payments to be made by Lessee under
the Lease Agreement and the Purchase Agreement. Lessor shall direct (and hereby
directs) Lessee to deliver to Agent (or its designee), at its address set forth
in the Participation Agreement or at such other address or to such other Person
as Agent shall designate, all such payments, and no delivery thereof by Lessee
shall be of any force or effect unless made to Agent (or its designee), as
herein provided. Lessor and Agent agree that Lessee, in making such payments to
Agent pursuant to the directions contained in this Assignment and in reliance on
such directions shall be deemed to have satisfied its obligation for such
payments under the Lease Agreement.
2.03. Irrevocability; Supplemental Instruments. Lessor agrees that (a) this
Assignment is irrevocable, (b) Lessor will not take any action under the Lease
Agreement or the Purchase Agreement or otherwise which is inconsistent with this
Assignment, (c) any action, assignment, designation or direction inconsistent
herewith shall be void and (d) Lessor will from time to time execute and deliver
all instruments of further assurance and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purpose of this
Assignment.
2.04. Validity. Lessor represents, warrants, covenants and agrees that
(a) Lessor has not assigned or executed any assignment of, and will not assign
or execute any assignment of, Lessor's estate, right, title or interest in the
Lease Agreement or the Purchase Agreement to anyone other than Agent, (b) any
such assignment is void, and (c) Lessor has not taken any action that impairs
the rights of Agent hereunder.
2.05. Lessor Remains Liable. The assignment made hereby is made for the
purpose of securing the Lessor Obligations only and does not (a) impair or
diminish in any way the
2
415
obligations of Lessor under the Lease Agreement or the Purchase Agreement or (b)
obligate Agent (or its designee) or any Participant to perform any of the
obligations of Lessor under the Lease Agreement or the Purchase Agreement. This
Assignment shall not operate to cause Agent (or its designee) to be regarded as
a mortgagee in possession.
2.06. Effect of Amendments. If the Lease Agreement or the Purchase
Agreement shall be amended, it shall continue to be subject to the provisions
hereof without the necessity of any further act by any of the parties hereto.
2.07. Absolute Assignment. Lessor has, subject to and in accordance with
the terms and conditions of this Assignment, assigned and transferred unto Agent
all of Lessor's right, title and interest in and to all Rents and other amounts
now or hereafter payable by Lessee under the Lease Agreement and the Purchase
Agreement, it being intended to establish an absolute transfer and assignment,
subject to and in accordance with the terms and conditions of this Assignment,
of all such Rents and other amounts to Agent and not merely to grant a security
interest therein. Subject to the Lease Agreement, Agent (or its designee) may,
in Lessor's name and stead, operate the Property and rent, lease or let all or
any portion of the Property to any party or parties at such rental and upon such
terms as Agent (or its designee) shall, in its discretion, determine.
2.08. Receivers. If, notwithstanding the terms of this Assignment, a
petition or order for sequestration of rents, or the appointment of a receiver
or some similar judicial action or order is deemed required under applicable
California law to allow Agent to continue to collect the Rents and other amounts
payable by Lessee under the Lease Agreement or the Purchase Agreement, then it
is agreed by Lessor that any proof of claim or similar document filed by Agent
in connection with the breach or rejection of the Lease Agreement or the
Purchase Agreement by Lessee thereunder or the trustee of any lessee under any
federal or state bankruptcy, insolvency or other similar law shall, for the
purpose of perfecting Agent's rights, be deemed to constitute action required
under such California law. Upon the occurrence and during the continuance of an
Event of Default, Lessor hereby consents to the appointment of a receiver for
Lessor's interest in the Property without regard to the solvency of Lessor or to
the collateral that may be available for the satisfaction of the Lessor
Obligations.
SECTION 3. MISCELLANEOUS.
3.01. Notices. Except as otherwise specified herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Lessor or Agent under this Assignment shall be given as provided in Paragraph
7.01 of the Participation Agreement.
3.02. Waivers; Amendments. Any term, covenant, agreement or condition of
this Assignment may be amended or waived only as provided in the Participation
Agreement. No failure or delay by Agent in exercising any right hereunder shall
operate as a waiver thereof or of any other right nor shall any single or
partial exercise of any such right preclude any other further exercise thereof
or of any other right. Unless otherwise specified in any such waiver or consent,
a waiver or consent given hereunder shall be effective only in the specific
instance and for the specific purpose for which given.
3
416
3.03. Successors and Assigns. This Assignment shall be binding upon and
inure to the benefit of the Lessor Parties and their permitted successors and
assigns; provided, however, that the Lessor Parties shall not sell, assign or
delegate their respective rights and obligations hereunder except as provided in
the Participation Agreement.
3.04. No Third Party Rights. Nothing expressed in or to be implied from
this Assignment is intended to give, or shall be construed to give, any Person,
other than the Lessor Parties and their permitted successors and assigns, any
benefit or legal or equitable right, remedy or claim under or by virtue of this
Assignment or under or by virtue of any provision herein.
3.05. Partial Invalidity. If at any time any provision of this
Assignment is or becomes illegal, invalid or unenforceable in any respect under
the law or any jurisdiction, neither the legality, validity or enforceability of
the remaining provisions of this Assignment nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
3.06. Governing Law. This Assignment shall be governed by and construed
in accordance with the laws of the State of California without reference to
conflicts of law rules.
3.07. Counterparts. This Assignment may be executed in any number of
identical counterparts, any set of which signed by all the parties hereto shall
be deemed to constitute a complete, executed original for all purposes.
[The signature page follows.]
4
417
IN WITNESS WHEREOF, Lessor has caused this Assignment to be
executed as of the day and year first above written.
LESSOR: LEASE PLAN U.S.A., INC.
By: _____________________________
Name: _______________________
Title: ________________________
5
418
STATE OF CALIFORNIA_________________)
)ss
COUNTY OF __________________________)
On _____________, 1997, before me, ___________________ a Notary Public
in and for the State of California, personally appeared __________, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s) or the entity on behalf of which the person(s) acted,
executed the instrument.
Witness my hand and official seal.
[SEAL]
-------------------------------
419
EXHIBIT A
LAND
A-1
420
EXHIBIT B
LESSEE'S CONSENT TO
ASSIGNMENT OF LEASE AGREEMENT AND PURCHASE AGREEMENT
November 12, 1997
Lease Plan U.S.A., Inc.
c/o ABN AMRO Bank N.V.
135 So. LaSalle Street, Suite 711
Chicago, IL 60603
ABN AMRO Bank N.V.,
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
1. Reference is made to the following:
(a) The Participation Agreement, dated as of November 12, 1997
(the "Participation Agreement"), among KLA-Tencor Corporation ("Lessee"), Lease
Plan U.S.A., Inc. ("Lessor"), the financial institutions listed in Schedule I to
the Participation Agreement (the "Participants") and ABN AMRO Bank N.V., as
agent for the Participants (in such capacity, "Agent");
(b) The Lease Agreement, dated as of November 12, 1997 (the
"Lease Agreement"), between Lessee and Lessor;
(c) The Purchase Agreement, dated as of November 12, 1997 (the
"Purchase Agreement"), between Lessee and Lessor; and
(d) The Assignment of Lease Agreement and Purchase Agreement,
dated as of November 12, 1997 (the "Assignment of Lease"), executed by Lessor in
favor of Agent.
Unless otherwise indicated, all terms defined in the Participation Agreement
have the same respective meanings when used herein.
2. Consent. Lessee hereby consents to the Assignment of Lease.
3. Payments. Lessee agrees to pay and deliver to Agent (or its designee)
all Rents and other amounts payable by Lessee under the Lease Agreement and the
Purchase Agreement in accordance with the terms thereof. Lessee will not, for
any reason whatsoever, seek to recover from Agent (or its designee) any moneys
paid to Agent (or its designee) by virtue of the Assignment of Lease.
B-1
421
4. Lessee's Other Agreements. Lessee hereby further agrees with Lessor
and Agent as follows:
(a) Lessee agrees (i) to deliver to Agent (or its designee) and
Lessor, at their addresses set forth in the Participation Agreement or
at such other addresses as Agent or Lessor, as the case may be, may
designate, duplicate originals or copies of all notices, undertakings,
demands, statements, documents and other communications which Lessee is
required or permitted to deliver pursuant to the Lease Agreement, the
Purchase Agreement or the Assignment of Lease; (ii) that any notice
delivered or declaration made to Lessee by Agent (or its designee)
pursuant to the Lease Agreement or the Purchase Agreement shall be
effective as a notice given or declaration made to Lessee by Lessor;
(iii) that Agent (or its designee) shall not by reason of the Assignment
of Lease be subject to any liability or obligation under the Lease
Agreement or the Purchase Agreement except as set forth in the
Assignment of Lease; and (iv) that any waiver, consent or approval by
Lessor under the Lease Agreement or the Purchase Agreement shall not be
valid unless approved in writing by Agent (or its designee).
(b) Lessee agrees to remain obligated under the Lease Agreement
and the Purchase Agreement in accordance with their respective terms,
and to take no action to terminate (other than in accordance with the
terms thereof), annul, rescind or avoid the Lease Agreement, the
Purchase Agreement or this Consent or to abate, reduce, offset, suspend
or defer or make any counterclaim or raise any defense (other than the
defense of payment to Agent (or its designee)) with respect to the Rents
or other amounts payable thereunder or to cease paying such amounts to
Agent (or its designee) as provided herein.
(c) Lessee hereby agrees that upon the occurrence of any Event
of Default, Agent (or its designee) shall have the right to deliver a
notice of default under the Lease Agreement, which shall be effective
for all purposes under the Lease Agreement as if sent by Lessor.
(d) Lessee shall notify Agent (or its designee) at its address
specified in the Participation Agreement, or such other address as Agent
may designate, of any default by Lessor under the Lease Agreement and
agrees that no such default shall entitle Lessee to terminate (other
than in accordance with the terms of the Lease Agreement), annul,
rescind or avoid the Lease Agreement or reduce or abate the Rents or
other amounts payable thereunder.
5. Amendment or Termination; Agent's Designation. Lessee agrees that it
will not, unilaterally or by agreement, subordinate, amend, supplement, modify,
extend (except in accordance with the express terms thereof), discharge, waive
or terminate (other than in accordance with the terms thereof) the Lease
Agreement, the Purchase Agreement or this Consent without Agent's prior written
consent, and that any attempted subordination, amendment, supplement,
modification, extension, discharge, waiver or termination in violation of this
Section 5 without such consent shall be null and void. In the event that the
Lease Agreement or the Purchase Agreement shall be amended or supplemented as
herein permitted, the Lease Agreement or the Purchase Agreement, as so amended
or supplemented, shall continue
B-2
422
to be subject to the provisions of the Assignment of Lease and this Consent
without the necessity of any further act by any of the parties thereto or
hereto.
6. Continuing Obligations of Lessor and Lessee. Neither the execution
and delivery of the Assignment of Lease, nor any action or inaction on the part
of Agent shall impair or diminish any obligations of Lessor or Lessee under the
Lease Agreement or the Purchase Agreement, and shall not impose on Agent (or its
designee) any such obligations, nor shall it impose on Agent (or its designee) a
duty to produce Rents or cause Agent to be a mortgagee or pledgee in possession
for any purpose. Except as specifically set forth in this Consent, none of the
terms of the Assignment of Lease shall impose upon Lessee any greater
obligations than those set forth in the Lease Agreement, the Purchase Agreement
and the other Operative Documents.
7. Partial Invalidity. If at any time any provision of this Consent is
or becomes illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of the remaining
provisions of this Consent nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction shall in any way be affected
or impaired thereby.
8. Governing Law. This Consent shall be governed by and construed in
accordance with the laws of the State of California without reference to
conflicts of law rules.
[SIGNATURE PAGE FOLLOWS]
B-3
423
IN WITNESS WHEREOF, Lessee has executed this Consent on the date set
forth above.
LESSEE: KLA-TENCOR CORPORATION
By: _____________________________
Name: _______________________
Title: ________________________
B-4
424
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Thomas Y. Coleman, Esq.
Orrick, Herrington & Sutcliffe LLP
Old Federal Reserve Bank Building
400 Sansome Street
San Francisco, California 94111
================================================================================
ASSIGNMENT OF LEASE AGREEMENT
AND PURCHASE AGREEMENT
BY
LEASE PLAN U.S.A., INC.
IN FAVOR OF
ABN AMRO BANK N.V.,
AS AGENT FOR THE PARTICIPANTS
NOVEMBER 12, 1997
================================================================================
425
RECORDING REQUESTED BY
AND WHEN RECORDED, RETURN TO:
Orrick, Herrington & Sutcliffe
Old Federal Reserve Bank Building
400 Sansome Street
San Francisco, CA 94111
Attn: James W. Miller, Esq.
- -------------------------------------------------------------------------------
FIRST AMENDMENT TO ASSIGNMENT OF LEASE AGREEMENT
AND PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO ASSIGNMENT OF LEASE AGREEMENT AND PURCHASE
AGREEMENT (this "Amendment"), dated as of November 14, 1997, is entered into by
and between:
(1) LEASE PLAN U.S.A., INC., a Georgia corporation
("Lessor"); and
(2) ABN AMRO BANK N.V., as agent for the Participants
under the Participation Agreement referred to in Recital A below
(in such capacity, "Agent").
RECITALS
A. KLA-Tencor Corporation, a Delaware corporation ("Lessee"), Lessor,
each of the financial institutions listed in Schedule I to the Participation
Agreement (referred to below) (collectively, the "Participants"), and Agent, are
parties to a Participation Agreement dated as of November 12, 1997 (the
"Participation Agreement").
B. Lessee and Lessor are parties to that certain Lease Agreement
dated as of November 12, 1997 and that certain Purchase Agreement dated as of
November 12, 1997.
C. As security for the Lessor Obligations, Lessor has assigned all of
its estate, right, title and interest in the Lease Agreement and the Purchase
Agreement to Agent pursuant to that certain Assignment of Lease Agreement and
Purchase Agreement dated November 12, 1997, and recorded on November 12, 1997,
in the Official Records of Santa Clara County, California, as Document No.
13935262 (the "Assignment of Lease").
D. Pursuant to the terms of the Participation Agreement, Lessee has
requested that Lessor acquire that certain real property described in Exhibit A
attached hereto (the "Tract 4 Land") and made a part hereof, and all
Improvements thereon.
E. Lessee and Lessor have amended the Lease Agreement to add the
Tract 4 Land to the property under the Lease Agreement as provided in that
certain First Amendment to Lease Agreement, Construction Deed of Trust with
Assignment of Rents, Security Agreement and Fixture Filing dated as of November
12, 1997, to be recorded in the Official Records of Santa Clara County,
California prior to this Amendment.
426
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Lessor and Agent hereby agree as follows:
1. DEFINITIONS, INTERPRETATION. All capitalized terms defined above and
elsewhere in this Amendment shall be used herein as so defined. Unless otherwise
defined herein, all other capitalized terms used herein shall have the
respective meanings given to those terms in Schedule 1.01 to the Participation
Agreement. The rules of construction set forth in Schedule 1.02 to the
Participation Agreement shall, to the extent not inconsistent with the terms of
this Amendment, apply to this Amendment and are hereby incorporated by
reference.
2. AMENDMENT TO ASSIGNMENT OF LEASE. The Assignment of Lease is hereby
amended by adding to Exhibit A thereto the property description set forth in
Exhibit A to this Amendment. Without limiting the effect of such addition,
Lessor and Agent specifically acknowledge and agree that, on and after the date
hereof, (i) the terms "Land" and "Property" as defined in the Assignment of
Lease include the Tract 4 Land, and (ii) the terms "Lease Agreement" and
"Purchase Agreement" as used herein shall mean those documents as amended to
include the Tract 4 Land.
3. EFFECT OF THIS AMENDMENT. On and after the date of this Amendment,
each reference in the Assignment of Lease and the other Operative Documents to
the Assignment of Lease shall mean the Assignment of Lease as amended hereby.
Except as specifically amended above, (a) the Assignment of Lease and the other
Operative Documents shall remain in full force and effect and are hereby
ratified and affirmed and (b) the execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power, or remedy of Lessor, the Participants or Agent, nor constitute
a waiver of any provision of the Assignment of Lease or any other Operative
Document.
4. MISCELLANEOUS.
(a) Counterparts. This Amendment may be executed in any
number of counterparts, each of which shall be deemed an original,
but all of which taken together shall constitute one and the same
instrument. The signature page and acknowledgment of any counterpart
may be removed therefrom and attached to any other counterpart to
evidence execution thereof by all of the parties hereto without
affecting the validity thereof.
(b) Headings. Headings in this Amendment are for
convenience of reference only and are not part of the substance
hereof.
(c) Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of California
without reference to conflicts of law rules.
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427
IN WITNESS WHEREOF, Lessor and Agent have caused this Amendment to be
executed as of the day and year first above written.
LESSOR: LEASE PLAN U.S.A., INC.
By:_________________________________
Name:__________________________
Title:_________________________
AGENT: ABN AMRO BANK N.V.
By:_________________________________
Name:__________________________
Title:_________________________
By:_________________________________
Name:__________________________
Title:_________________________
ACKNOWLEDGED AND AGREED:
LESSEE: KLA-TENCOR CORPORATION
By:_________________________________
Name:__________________________
Title:_________________________
3
428
STATE OF )
____________________________________________________)
)
COUNTY OF ___________________________________________________)
On _____________, 1997 before me, _______________________, a Notary
Public in and for the State of California, personally appeared
_______________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL]
--------------------------------------------
429
STATE OF )
____________________________________________________)
)
COUNTY OF ___________________________________________________)
On _____________, 1997 before me, _______________________, a Notary
Public in and for the State of California, personally appeared
_______________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL]
------------------------------------------
430
STATE OF )
____________________________________________________)
)
COUNTY OF ___________________________________________________)
On _____________, 1997 before me, _______________________, a Notary
Public in and for the State of California, personally appeared
_______________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL]
-----------------------------------------
431
EXHIBIT A
TRACT 4 LAND
THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF SANTA CLARA, STATE
OF CALIFORNIA, AND DESCRIBED AS FOLLOWS:
A-1
432
LESSEE'S CONSENT TO
ASSIGNMENT OF LEASE AGREEMENT AND PURCHASE AGREEMENT
November 12, 1997
Lease Plan U.S.A., Inc.
c/o ABN AMRO Bank N.V.
135 So. LaSalle Street, Suite 711
Chicago, IL 60603
ABN AMRO Bank N.V.,
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
1. Reference is made to the following:
(a) The Participation Agreement, dated as of November 12, 1997
(the "Participation Agreement"), among KLA-Tencor Corporation
("Lessee"), Lease Plan U.S.A., Inc. ("Lessor"), the financial
institutions listed in Schedule I to the Participation Agreement (the
"Participants") and ABN AMRO Bank N.V., as agent for the Participants
(in such capacity, "Agent");
(b) The Lease Agreement, dated as of November 12, 1997 (the
"Lease Agreement"), between Lessee and Lessor;
(c) The Purchase Agreement, dated as of November 12, 1997 (the
"Purchase Agreement"), between Lessee and Lessor; and
(d) The Assignment of Lease Agreement and Purchase Agreement,
dated as of November 12, 1997 (the "Assignment of Lease"), executed by
Lessor in favor of Agent.
Unless otherwise indicated, all terms defined in the Participation Agreement
have the same respective meanings when used herein.
2. Consent. Lessee hereby consents to the Assignment of Lease.
3. Payments. Lessee agrees to pay and deliver to Agent (or its designee)
all Rents and other amounts payable by Lessee under the Lease Agreement and the
Purchase Agreement in accordance with the terms thereof. Lessee will not, for
any reason whatsoever, seek to recover from Agent (or its designee) any moneys
paid to Agent (or its designee) by virtue of the Assignment of Lease.
4. Lessee's Other Agreements. Lessee hereby further agrees with Lessor
and Agent as follows:
433
(a) Lessee agrees (i) to deliver to Agent (or its designee) and
Lessor, at their addresses set forth in the Participation Agreement or
at such other addresses as Agent or Lessor, as the case may be, may
designate, duplicate originals or copies of all notices, undertakings,
demands, statements, documents and other communications which Lessee is
required or permitted to deliver pursuant to the Lease Agreement, the
Purchase Agreement or the Assignment of Lease; (ii) that any notice
delivered or declaration made to Lessee by Agent (or its designee)
pursuant to the Lease Agreement or the Purchase Agreement shall be
effective as a notice given or declaration made to Lessee by Lessor;
(iii) that Agent (or its designee) shall not by reason of the Assignment
of Lease be subject to any liability or obligation under the Lease
Agreement or the Purchase Agreement except as set forth in the
Assignment of Lease; and (iv) that any waiver, consent or approval by
Lessor under the Lease Agreement or the Purchase Agreement shall not be
valid unless approved in writing by Agent (or its designee).
(b) Lessee agrees to remain obligated under the Lease Agreement
and the Purchase Agreement in accordance with their respective terms,
and to take no action to terminate (other than in accordance with the
terms thereof), annul, rescind or avoid the Lease Agreement, the
Purchase Agreement or this Consent or to abate, reduce, offset, suspend
or defer or make any counterclaim or raise any defense (other than the
defense of payment to Agent (or its designee)) with respect to the Rents
or other amounts payable thereunder or to cease paying such amounts to
Agent (or its designee) as provided herein.
(c) Lessee hereby agrees that upon the occurrence of any Event of
Default, Agent (or its designee) shall have the right to deliver a
notice of default under the Lease Agreement, which shall be effective
for all purposes under the Lease Agreement as if sent by Lessor.
(d) Lessee shall notify Agent (or its designee) at its address
specified in the Participation Agreement, or such other address as Agent
may designate, of any default by Lessor under the Lease Agreement and
agrees that no such default shall entitle Lessee to terminate (other
than in accordance with the terms of the Lease Agreement), annul,
rescind or avoid the Lease Agreement or reduce or abate the Rents or
other amounts payable thereunder.
5. Amendment or Termination; Agent's Designation. Lessee agrees that it
will not, unilaterally or by agreement, subordinate, amend, supplement, modify,
extend (except in accordance with the express terms thereof), discharge, waive
or terminate (other than in accordance with the terms thereof) the Lease
Agreement, the Purchase Agreement or this Consent without Agent's prior written
consent, and that any attempted subordination, amendment, supplement,
modification, extension, discharge, waiver or termination in violation of this
Section 5 without such consent shall be null and void. In the event that the
Lease Agreement or the Purchase Agreement shall be amended or supplemented as
herein permitted, the Lease Agreement or the Purchase Agreement, as so amended
or supplemented, shall continue to be subject to the provisions of the
Assignment of Lease and this Consent without the necessity of any further act by
any of the parties thereto or hereto.
2
434
6. Continuing Obligations of Lessor and Lessee. Neither the execution
and delivery of the Assignment of Lease, nor any action or inaction on the part
of Agent shall impair or diminish any obligations of Lessor or Lessee under the
Lease Agreement or the Purchase Agreement, and shall not impose on Agent (or its
designee) any such obligations, nor shall it impose on Agent (or its designee) a
duty to produce Rents or cause Agent to be a mortgagee or pledgee in possession
for any purpose. Except as specifically set forth in this Consent, none of the
terms of the Assignment of Lease shall impose upon Lessee any greater
obligations than those set forth in the Lease Agreement, the Purchase Agreement
and the other Operative Documents.
7. Partial Invalidity. If at any time any provision of this Consent is
or becomes illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of the remaining
provisions of this Consent nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction shall in any way be affected
or impaired thereby.
8. Governing Law. This Consent shall be governed by and construed in
accordance with the laws of the State of California without reference to
conflicts of law rules.
IN WITNESS WHEREOF, Lessee has executed this Consent on the date set
forth above.
LESSEE: KLA-TENCOR CORPORATION
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
435
RECORDING REQUESTED BY
WHEN RECORDED RETURN TO:
Orrick, Herrington & Sutcliffe LLP
400 Sansome Street
San Francisco, California 94111
Attn: Thomas Y. Coleman, Esq.
DOCUMENTARY TRANSFER TAX:
[The undersigned declare that the documentary transfer tax is $0.00 as Agreement
is a contract for the sale of real property.]
- --------------------------------------------------------------------------------
MEMORANDUM OF PURCHASE AGREEMENT
By this Memorandum of Purchase Agreement, made November 12, 1997,
concurrently with that certain Purchase Agreement (the "Purchase Agreement")
dated as of November 12, 1997, by and between the parties hereto and covering
the property described in Exhibit A attached hereto and made a part hereof (the
"Property"), KLA-TENCOR CORPORATION, a Delaware corporation ("Lessee"), and
LEASE PLAN U.S.A., INC., a Georgia corporation ("Lessor") agree as follows:
Lessor grants to Lessee the right to purchase the Property upon the
terms and subject to the conditions set forth in the Purchase Agreement.
This instrument is a memorandum of the Purchase Agreement and is subject
to all of the terms, covenants and conditions provided in the unrecorded
Purchase Agreement and in no way modifies the provisions of the Purchase
Agreement. If the terms of this instrument are inconsistent with the terms of
the Purchase Agreement, the terms of the Purchase Agreement shall prevail. This
instrument may be executed in counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument.
LESSEE: KLA-TENCOR CORPORATION
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
LESSOR: LEASE PLAN U.S.A., INC.
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
436
EXHIBIT A
PROPERTY
A-1
437
STATE OF CALIFORNIA )
) ss
COUNTY OF )
--------------------------)
On _____________, 1997, before me, ___________________ a Notary Public
in and for the State of California, personally appeared _____________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s) or the entity on behalf of which the person(s) acted,
executed the instrument.
Witness my hand and official seal.
[SEAL]
------------------------------
438
STATE OF CALIFORNIA )
) ss
COUNTY OF )
---------------------------)
On _____________, 1997, before me, ___________________ a Notary Public
in and for the State of California, personally appeared ______________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s) or the entity on behalf of which the person(s) acted,
executed the instrument.
Witness my hand and official seal.
[SEAL]
-----------------------------------------
439
LEASE AGREEMENT,
CONSTRUCTION DEED OF TRUST WITH ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS LEASE AGREEMENT, CONSTRUCTION DEED OF TRUST WITH ASSIGNMENT OF
RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this "Agreement" herein), dated as
of November 12, 1997 is entered into by and between:
(1) KLA-TENCOR CORPORATION, a Delaware corporation ("Lessee");
and
(2) LEASE PLAN U.S.A., INC., a Georgia corporation, as lessor
under this Agreement and as trustee under the deed of trust contained
herein ("Lessor").
RECITALS
A. Lessee has requested Lessor and the financial institutions which are
"Participants" under the Participation Agreement referred to in Recital B below
(such financial institutions to be referred to collectively as the
"Participants") to provide to Lessee a certain lease facility. Pursuant to such
facility:
(1) Lessor would (a) acquire certain property designated by Lessee
(either through purchase or lease), (b) lease to Lessee such property and
certain other property currently held by Lessor, (c) appoint Lessee as Lessor's
agent to make certain improvements to a portion of such property, (d) make
advances to finance such improvements and to pay certain related expenses, and
(e) grant to Lessee the right to purchase such property; and
(2) The Participants would participate in such lease facility by (a)
funding the purchase prices and other advances to be made by Lessor and (b)
acquiring participation interests in the rental and certain other payments to be
made by Lessee.
B. Pursuant to a Participation Agreement dated of even date herewith
(the "Participation Agreement") among Lessee, Lessor, the Participants and ABN
AMRO Bank N.V., as agent for the Participants (in such capacity, "Agent"),
Lessor and the Participants have agreed to provide such lease facility upon the
terms and subject to the conditions set forth therein, including without
limitation the execution and delivery of this Agreement setting forth the terms
of the lease by Lessor to Lessee of the property.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
440
SECTION 1. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this Agreement or any
other Operative Document, each term set forth in Schedule 1.01 to the
Participation Agreement, when used in this Agreement or any other Operative
Document, shall have the respective meaning given to that term in such Schedule
1.01 or in the provision of this Agreement or other document, instrument or
agreement referenced in such Schedule 1.01.
1.02. Rules of Construction. Unless otherwise indicated in this
Agreement or any other Operative Document, the rules of construction set forth
in Schedule 1.02 to the Participation Agreement shall apply to this Agreement
and the other Operative Documents.
SECTION 2. BASIC PROVISIONS.
2.01. Lease of the Property. Subject to the acquisition thereof by
Lessor pursuant to the Participation Agreement and applicable Acquisition
Agreements either as of the date hereof or during the term hereof, Lessor agrees
to lease to Lessee and Lessee agrees to lease from Lessor the following property
(the "Property") to the extent of Lessor's estate, right, title and interest
therein, thereto or thereunder:
(a) All lots, pieces, tracts and parcels of land described in
Exhibit A together with such additional parcels of real property as may
be added to Exhibit A from time to time during the term hereof (the
"Land");
(b) All Improvements located on the Land;
(c) All Appurtenant Rights belonging, relating or pertaining to
any of the Land or Improvements;
(d) All Related Goods (including those described in Exhibit B
and in each Exhibit B Supplement), Related Permits and Related
Agreements related to any of the foregoing Land, Improvements or
Appurtenant Rights; and
(e) All accessions and accretions to and replacements and
substitutions for the foregoing.
(Lessee understands that Lessor's only interest in the Tract 3 Land is through
the Tract 3 Ground Lease Agreement and is a leasehold interest only.)
2.02. Term.
(a) Original Term. The original term of this Agreement shall
commence on the Closing Date (the "Commencement Date") and shall end on
the first Business Day of
2
441
November, 2002 (such date as it may be extended pursuant to Subparagraph
2.02(b) to be referred to as the "Scheduled Expiration Date").
(b) Extensions. Lessee may request Lessor to extend the
Scheduled Expiration Date in effect for an additional period of two (2)
years, as provided in Subparagraph 2.09(b) of the Participation
Agreement. If Lessor and each Participant consents to such a request in
accordance with such provision, the definition of "Scheduled Expiration
Date" set forth in Subparagraph 2.02(a) shall be deemed extended to the
date which is the first business day of November, 2004. Lessee
acknowledges that neither Lessor nor any Participant has any obligation
or commitment (either express or implied) to extend, or consent to the
extension of, the Scheduled Expiration Date at any time.
2.03. Rent.
(a) Base Rent.
(i) Lessee shall pay to Lessor as base rent hereunder
("Base Rent") for each Rental Period for each Portion of the
Outstanding Lease Amount an amount equal to the product of (A)
the Rental Rate for such Rental Period and Portion, times (B) the
amount of such Portion on the first day of such Rental Period,
times (C) a fraction, the numerator of which is the number of
days in such Rental Period and the denominator of which is 360.
If the Rental Rate shall change during any Rental Period, the
Rental Rate for such Rental Period shall be the weighted average
of the Rental Rates in effect from time to time during such
Rental Period.
(ii) Lessee may select the number and amounts of the
Portions into which the Outstanding Lease Amount is to be divided
and the Rental Period for each such Portion by (y) setting forth
in each Acquisition Advance Request delivered by Lessee pursuant
to Subparagraph 2.03(a) of the Participation Agreement the
Portions into which Advances initially are to be divided and the
initial Rental Periods therefor and (z) delivering to Lessor at
least three (3) Business Days prior to the last day of each
Rental Period for a Portion an irrevocable written notice in the
form of Exhibit C, appropriately completed (a "Notice of Rental
Period Selection"), subject to the following:
(A) Each Portion shall be in the amount of
$5,000,000 or an integral multiple of $100,000 in excess
thereof; provided, however, that (1) during the Commitment
Period, all Improvement/Expense Advances made after the
Closing Date shall be combined as a single Portion (which
may be less than $5,000,000), (2) the total number of
Portions outstanding at any time shall not exceed four
(4), and (3) the Outstanding Lease Amount shall consist of
a single Portion in the amount of the Outstanding Lease
Amount if the Outstanding Lease Amount is less than
$5,000,000).
(B) The initial and each subsequent Rental Period
selected by Lessee for each Portion shall be one (1), two
(2), three (3), six (6) or
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442
twelve (12) months; provided, however, that (1) the initial
Rental Period for any Portion that is originated on an
Acquisition Date that is not the first Business Day of a
calendar month shall begin on such Acquisition Date and shall
end on the first Business Day of the first calendar month
immediately following the month in which such origination
occurs, (2) every other Rental Period shall begin and end on the
first Business Day of a calendar month, (3) during the
Commitment Period, the Rental Period for the Portion consisting
of all Improvement/Expense Advances made after the Closing Date
shall be one (1) month, (4) no Rental Period shall end after the
Scheduled Expiration Date, (5) no Rental Period shall be longer
than one (1) month if a Default has occurred and is continuing
on the date three (3) Business Days prior to the first day of
such Rental Period and (6) each Rental Period after the initial
Rental Period for any Portion for which Lessee fails to make a
selection by delivering a Notice of Rental Period Selection in
accordance with this clause (ii) shall be one (1) month.
Lessee shall deliver each Notice of Rental Period Selection by
first-class mail or facsimile as required by Subparagraph 2.02(a) and
Paragraph 7.01 of the Participation Agreement; provided, however, that
Lessee shall promptly deliver the original of any Notice of Rental
Period Selection initially delivered by facsimile.
(iii) The rental rate for each Rental Period for a Portion
("Rental Rate") shall be the LIBOR Rental Rate for such Rental Period
and Portion, except as follows:
(A) The Rental Rates for the Rental Periods that begin
on the Closing Date and on the Tract 4 Acquisition Date and end
on December 1, 1997 shall be a rate agreed upon by Lessee and
Lessor; or
(B) If any other Rental Period is less than seven (7)
days, the Rental Rate for such Rental Period shall be the
Alternate Rental Rate; or
(C) If the LIBOR Rental Rate is unavailable for any
Rental Period pursuant to Subparagraph 2.12(a) or Subparagraph
2.12(b) of the Participation Agreement, the Rental Rate for such
Rental Period shall be the Alternate Rental Rate.
(iv) Lessee shall pay Base Rent in arrears (A) for each Portion,
on the last day of each Rental Period therefor and, in the case of any
Rental Period which exceeds three (3) months, each day occurring every
three (3) months after the first day of such Rental Period
(individually, a "Scheduled Rent Payment Date") and (B) for all
Portions, on the Expiration Date.
(b) Supplemental Rent. Lessee shall pay as supplemental rent
hereunder ("Supplemental Rent") all amounts (other than Base Rent, the
purchase price payable by
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443
Lessee for any purchase of the Property by Lessee pursuant to the
Purchase Agreement and the Residual Value Guaranty Amount payable under
the Purchase Agreement) payable by Lessee under this Agreement and the
other Operative Documents. Lessee shall pay all Supplemental Rent
amounts on the dates specified in this Agreement and the other Operative
Documents for the payment of such amounts or, if no date is specified
for the payment of any such amount, upon the demand of Lessor or any
other Person to whom such amount is payable.
2.04. Use. Lessee may use the Property for office, research and
development, warehouse and manufacturing purposes, and for any other purpose
which is in compliance with applicable zoning laws and ordinances for the
Property.
2.05. "As Is" Lease. Lessee has conducted, or will conduct from time to
time with regard to property that may be added hereto after the date hereof, all
due diligence which it deems appropriate regarding the Property and agrees that
no Lessor Party has any obligation to conduct any such due diligence. Lessee is
leasing the Property "as is, with all faults" without any representation,
warranty, indemnity or undertaking by any Lessor Party regarding any aspect of
the Property, including (a) the condition of the Property (including any
Improvements to the Property made prior to the Commencement Date or during the
Term); (b) title to the Property (including possession of the Property by any
Person or the existence of any Lien or any other right, title or interest in or
to any of the Property in favor of any Person); (c) the value, habitability,
usability, design, operation or fitness for use of the Property; (d) the
availability or adequacy of utilities and other services to the Property; (e)
any latent, hidden or patent defect in the Property; (f) the zoning or status of
the Property or any other restrictions on the use of the Property; (g) the
economics of the Property; (h) any Casualty or Condemnation; or (i) the
compliance of the Property with any applicable Governmental Rule or Insurance
Requirement; provided, however, that Lessor shall be obligated to remove Lessor
Liens to the extent required in Subparagraph 5.04(b) of the Participation
Agreement. Without limiting the generality of the foregoing, Lessee specifically
waives any covenant of quiet enjoyment except as otherwise provided in
Subparagraph 5.04(b) of the Participation Agreement.
2.06. Nature of Transaction. As more fully provided in Paragraph 2.10 of
the Participation Agreement, Lessee and the Lessor Parties intend that the
transaction evidenced by this Agreement and the other Operative Documents
constitute an operating lease in accordance with FASB 13 for accounting purposes
and a loan secured by the Property for all other purposes, including federal,
state and local income tax purposes and commercial, real estate and bankruptcy
law purposes.
2.07. Security, Etc. In order to secure the Lessee Obligations and
otherwise to assure the Lessor Parties the benefits hereof in the event that the
transaction evidenced by this Agreement and the other Operative Documents is,
pursuant to the intent of Lessee and the Lessor Parties, treated as a loan for
certain purposes, Lessee hereby makes the following grants and agrees as
follows:
(a) Real Property Security. As security for the Lessee
Obligations, Lessee hereby irrevocably and unconditionally grants,
conveys, transfers and assigns to Lessor, in trust for the benefit of
the Lessor Parties, with power of sale and right of entry and
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possession, all estate, right, title and interest of Lessee in the
following property, whether now owned or leased or hereafter acquired,
(collectively, the "Real Property Collateral"):
(i) The Land;
(ii) All Improvements located on the Land;
(iii) All Appurtenant Rights belonging, relating or
pertaining to any of the foregoing Land or Improvements;
(iv) All Subleases of and all Issues and Profits
accruing from any of the foregoing Land, Improvements or
Appurtenant Rights to the extent that such Subleases and Issues
and Profits constitute real property;
(v) All Related Goods, Related Permits and Related
Agreements related to any of the foregoing Land, Improvements or
Appurtenant Rights to the extent that such Related Goods,
Related Agreements and Related Permits constitute real property;
(vi) All other Property to the extent that such property
constitutes real property; and
(vii) All proceeds of the foregoing, including Casualty
and Condemnation Proceeds.
(b) Personal Property Security. As security for the Lessee Obligations,
Lessee hereby irrevocably and unconditionally assigns and grants to Lessor, for
the benefit of the Lessor Parties, a security interest in all estate, right,
title and interest of Lessee in the following property, whether now owned or
leased or hereafter acquired, (collectively, the "Personal Property
Collateral"):
(i) All Subleases of and all Issues and Profits accruing from
any of the Land, Improvements or Appurtenant Rights to the extent that
such Subleases and Issues and Profits constitute personal property;
(ii) All Related Goods, Related Permits and Related Agreements
related to any of the Land, Improvements or Appurtenant Rights to the
extent that such Related Goods, Related Agreements and Related Permits
constitute personal property;
(iii) All Cash Collateral and all other deposit accounts,
instruments, investment property and monies held by any Lessor Party in
connection with this Agreement or any other Operative Document
(including any Repair and Restoration Account);
(iv) All other Property to the extent such Property constitutes
personal property; and
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(v) All proceeds of the foregoing, including Casualty and
Condemnation Proceeds.
This Agreement constitutes a fixture filing for purposes of the
California Commercial Code with respect to the Related Goods which are or are to
become fixtures on the Land or Improvements.
(c) Absolute Assignment of Subleases, Issues, and Profits. Lessee hereby
irrevocably assigns to Lessor, for the benefit of the Lessor Parties, all of
Lessee's estate, right, title and interest in, to and under the Subleases and
the Issues and Profits, whether now owned or hereafter acquired. This is a
present and absolute assignment, not an assignment for security purposes only,
and Lessor's right to the Subleases and Issues and Profits is not contingent
upon, and may be exercised without possession of, the Property.
(i) If no Event of Default has occurred and is continuing,
Lessee shall have a revocable license to collect and retain the
Issues and Profits as they become due. Upon the occurrence and
during the continuance of an Event of Default, such license shall
automatically terminate, and Lessor may collect and apply the
Issues and Profits pursuant to Subparagraph 5.02(d) without
further notice to Lessee or any other party and without taking
possession of the Property. All Issues and Profits thereafter
collected by Lessee shall be held by lessee as trustee in a
constructive trust for the benefit of Lessor. Lessee hereby
irrevocably authorizes and directs the sublessees under the
Subleases, without any need on their part to inquire as to
whether an Event of Default has actually occurred or is then
existing, to rely upon and comply with any notice or demand by
Lessor for the payment to Lessor of any rental or other sums
which may become due under the Subleases or for the performance
of any of the sublessees' undertakings under the Subleases.
Collection of any Issues and Profits by Lessor shall not cure or
waive any default or notice of default hereunder or invalidate
any acts done pursuant to such notice.
(ii) The foregoing irrevocable assignment shall not cause
any Lessor Party to be (A) a mortgagee in possession; (B)
responsible or liable for (1) the control, care, management or
repair of the Property or for performing any of Lessee's
obligations or duties under the Subleases, (2) any waste
committed on the Property by the sublessees under any of the
Subleases or by any other Persons, (3) any dangerous or defective
condition of the Property, or (4) any negligence in the
management, upkeep, repair or control of the Property resulting
in loss or injury or death to any sublessee, licensee, employee,
invitee or other Person; or (C) responsible for or impose upon
any Lessor Party any duty to produce rents or profits. No Lessor
Party, in the absence of gross negligence or willful disregard on
its part, shall be liable to Lessee as a consequence of (y) the
exercise or failure to exercise any of the rights, remedies or
powers granted to Lessor hereunder or (z) the failure or refusal
of Lessor to perform or discharge any obligation, duty or
liability of Lessee arising under the Subleases.
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SECTION 3. OTHER LESSEE AND LESSOR RIGHTS AND OBLIGATIONS.
3.01. Maintenance, Repair, Etc.
(a) General. Lessee shall not permit any waste of the Property,
except for ordinary wear and tear, and shall, at its sole cost and
expense, maintain the Property in good working order, mechanical
condition and repair and make all necessary repairs thereto, of every
kind and nature whatsoever, whether interior or exterior, ordinary or
extraordinary, structural or nonstructural or foreseen or unforeseen, in
each case as required by all applicable Governmental Rules and Insurance
Requirements and on a basis consistent with the operation and
maintenance of commercial properties comparable in type and location to
the Property and in compliance with prudent industry practice.
(b) New Improvements. Lessee shall make or cause to be made all
of the New Improvements authorized and required by the Construction
Agency Agreement in accordance with the Construction Agency Agreement.
(c) Other Modifications. Lessee, at its sole cost and expense,
may from time to time make alterations, renovations, improvements and
additions to the Property and substitutions and replacements therefor
(collectively, "Modifications") in addition to the New Improvements;
provided that:
(i) No Modification impairs the value, utility or useful
life of the Property or any part thereof from that which existed
immediately prior to such Modification;
(ii) All Modifications are made expeditiously and, in
all cases unless Lessee currently is exercising either the Term
Purchase Option or the Expiration Date Purchase Option,
completed not later than six (6) months prior to the Scheduled
Expiration Date;
(iii) All Modifications are made in a good and
workmanlike manner and in compliance with all applicable
Governmental Rules and Insurance Requirements;
(iv) Subject to Paragraph 3.12 relating to permitted
contests, Lessee pays all costs and expenses and discharges (or
cause to be insured or bonded over) any Liens arising in
connection with any Modification not later than the earlier of
(A) sixty (60) days after the same shall be filed (or otherwise
becomes effective) and (B) unless Lessee currently is exercising
either the Term Purchase Option or the Expiration Date Purchase
Option, six (6) months prior to the Scheduled Expiration Date;
(v) At least one (1) month prior to the commencement of
(A) any Modifications which are anticipated to cost $2,500,000
or more in the aggregate, or (B) any Modifications which cause
the total of all Modifications undertaken during the previous
twelve-month period to exceed an aggregate cost of
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$5,000,000, Lessee shall deliver to Lessor, with sufficient
copies for Agent and each Participant, a brief written
description of such Modifications; and
(vi) All Modifications otherwise comply with this
Agreement and the other Operative Documents.
(d) Abandonment. Lessee shall not abandon the Property or any
material portion thereof for any period in excess of thirty (30)
consecutive days during the term hereof, except as a part of any New
Improvements or Modifications as permitted herein or in the other
Operative Documents.
3.02. Risk of Loss. Lessee assumes all risks of loss arising from any
Casualty or Condemnation which arises or occurs prior to the Expiration Date or
while Lessee is in possession of the Property and all liability for all personal
injuries and deaths and damages to property suffered by any Person or property
on or in connection with the Property which arises or occurs prior to the
Expiration Date or while Lessee is in possession of the Property, except in each
case to the extent any such loss or liability is primarily caused by the gross
negligence or willful misconduct of a Lessor Party. Lessee hereby waives the
provisions of California Civil Code Sections 1932(1), 1932(2) and 1933(4), and
any and all other applicable existing or future Governmental Rules permitting
the termination of this Agreement as a result of any Casualty or Condemnation,
and Lessor shall in no event be answerable or accountable for any risk of loss
of or decrease in the enjoyment and beneficial use of the Property as a result
of any such event.
3.03. Insurance.
(a) Coverage. Lessee, at its sole cost and expense, shall carry
and maintain the following insurance coverage:
(i) At all times during the Term, commercial liability
insurance covering claims for injuries or death sustained by
persons or damage to property while on the Property, and
workers' compensation insurance;
(ii) At all times during the Term, property insurance
covering loss or damage by fire, flood and other risks in an
amount not less than the then current replacement cost of the
Improvements on the Property;
(iii) During the construction of any Improvements,
builders' risk insurance covering fire, flood and other normal
insured risks; and
(iv) At all times during the Term as appropriate, such
other insurance of the types customarily carried by a reasonably
prudent Person owning or operating properties similar to the
Property in the same geographic area as the Property;
Provided, however, that this Subparagraph 3.03(a) (A) shall not be
construed to require Lessee to carry or maintain earthquake insurance
and (B) shall not require Lessee to carry or maintain flood insurance in
an amount in excess of the amount required by any Governmental Rule
applicable to Lessee or any Lessor Party. Except as otherwise
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specifically required above, such insurance shall be in amounts, in a
form and with deductibles customarily carried by a reasonably prudent
Person owning or operating properties similar to the Property in the
same geographic area as the Property.
(b) Carriers. Any insurance carried and maintained by Lessee
pursuant to this Paragraph 3.03 shall be underwritten by an insurance
company which (i) has, at the time such insurance is placed and at the
time of each renewal thereof, a general policyholder rating of "A" and a
financial rating of at least 9 from A.M. Best and Company or any
successor thereto (or if there is none, an organization having a similar
national reputation) or (ii) is otherwise approved by Lessor and
Required Participants; provided, however, that Lessee may, if no Event
of Default has occurred and is continuing, self-insure.
(c) Terms. Each insurance policy maintained by Lessee pursuant
to this Paragraph 3.03 shall provide as follows, whether through
endorsements or otherwise:
(i) Lessor and Agent shall be named as additional
insureds, in the case of each policy of liability and property
insurance, and additional loss payees, in the case of each
policy of property insurance.
(ii) In respect of the interests of Lessor in the
policy, the insurance shall not be invalidated by any action or
by inaction of Lessee or by any Person having temporary
possession of the Property while under contract with Lessee to
perform maintenance, repair, alteration or similar work on the
Property, and shall insure the interests of Lessor regardless of
any breach or violation of any warranty, declaration or
condition contained in the insurance policy by Lessee, Lessor or
any other additional insured (other than by such additional
insured, as to such additional insured); provided, however, that
the foregoing shall not be deemed to (A) cause such insurance
policies to cover matters otherwise excluded from coverage by
the terms of such policies or (B) require any insurance to
remain in force notwithstanding non-payment of premiums except
as provided in clause (iii) below.
(iii) If the insurance policy is cancelled for any
reason whatsoever, or substantial change is made in the coverage
that affects the interests of Lessor, or if the insurance
coverage is allowed to lapse for non-payment of premium, such
cancellation, change or lapse shall not be effective as to
Lessor for thirty (30) days after receipt by Lessor of written
notice from the insurers of such cancellation, change or lapse.
(iv) No Lessor Party shall have any obligation or
liability for premiums, commissions, assessments, or calls in
connection with the insurance.
(v) The insurer shall waive any rights of set-off or
counterclaim or any other deduction, whether by attachment or
otherwise, that it may have against any Lessor Party.
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(vi) The insurance shall be primary without right of
contribution from any other insurance that may be carried by any
Lessor Party with respect to its interest in the Property.
(vii) The insurer shall waive any right of subrogation
against any Lessor Party.
(viii) All provisions of the insurance, except the
limits of liability, shall operate in the same manner as if
there were a separate policy covering each insured party.
(ix) The insurance shall not be invalidated should
Lessee or any Lessor Party waive, in writing, prior to a loss,
any or all rights of recovery against any Person for losses
covered by such policy, nor shall the insurance in favor of any
Lessor Party or Lessee, as the case may be, or their respective
rights under and interests in said policies be invalidated or
reduced by any act or omission or negligence of any Lessee Party
or Lessor, as the case may be, or any other Person having any
interest in the Property.
(x) If the insurer has not received written notice from
Lessor that an Event of Default has occurred and is continuing,
(A) all insurance proceeds in respect of any loss or occurrence
with a value of less than fifteen million Dollars ($15,000,000)
shall be paid to and adjusted solely by Lessee and (B) all other
insurance proceeds shall be paid to Lessor and adjusted jointly
by Lessor and Lessee. From and after the date on which the
insurer receives written notice from Lessor that an Event of
Default has occurred and is continuing (and unless and until
such insurer receives written notice from Lessor that all Events
of Default have been cured), all losses shall be adjusted solely
by, and all insurance proceeds shall be paid solely to, Lessor.
(xi) Each policy shall contain a standard form mortgage
endorsement in favor of Lessor.
(d) Evidence of Insurance. Lessee, at its sole cost and expense, shall
furnish to Lessor from time to time upon the request of Lessor such certificates
or other documents as Lessor may reasonably request to evidence Lessee's
compliance with the insurance requirements set forth in this Paragraph 3.03.
(e) Release of Lessor Parties. Lessee hereby waives, releases and
discharges each Lessor Party and its directors, officers, employees, agents and
advisors from all claims whatsoever arising out of any loss, claim, expense or
damage to or destruction covered or coverable by insurance required under this
Paragraph 3.03 to the extent the policies for such insurance permit such waiver,
notwithstanding that such loss, claim, expense or damage may have been caused by
any such Person, and, as among Lessee and such Persons, Lessee agrees to look to
the insurance coverage only in the event of such loss.
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3.04. Casualty and Condemnation.
(a) Notice. Lessee shall give Lessor prompt written notice of the
occurrence of any Casualty affecting, or the institution of any proceedings for
the Condemnation of, the Property or any portion thereof.
(b) Repair or Purchase Option. After the occurrence of any Casualty or
Condemnation affecting the Property or any portion thereof, Lessee shall either
(i) repair and restore the Property as required by Subparagraph 3.04(c) or (ii)
exercise the Term Purchase Option and purchase the Property pursuant to the
Purchase Agreement; provided, however, that Lessee may not elect to repair and
restore the Property if such casualty or condemnation is a Major Casualty or
Major Condemnation or if an Event of Default has occurred and is continuing,
unless Lessor and the Required Participants shall consent in writing. Not later
than one (1) month after the occurrence of any Casualty or Condemnation, Lessee
shall deliver to Lessor a written notice indicating whether it elects to repair
and restore or purchase the Property
(c) Repair and Restoration. If Lessee elects to repair and restore the
Property following any Casualty or Condemnation, Lessee shall diligently proceed
to repair and restore the Property to the condition in which it existed
immediately prior to such Casualty or Condemnation and shall use reasonable
efforts to complete all such repairs and restoration as soon as reasonably
practicable, but not later than six (6) months prior to the Scheduled Expiration
Date unless Lessee currently is exercising either the Term Purchase Option or
the Expiration Date Purchase Option,. Lessee shall use its own funds to make
such repairs and restoration, except to the extent any Casualty and Condemnation
Proceeds are available and are released to Lessee for such purpose pursuant to
Subparagraph 3.04(f). Lessee's exercise of the repair and restoration option
shall, if Lessor or Required Participants direct, be subject to satisfaction of
the following conditions within one (1) month after the occurrence of the
Casualty or Condemnation:
(i) Deposit in a deposit account acceptable to and controlled by
Lessor (a "Repair and Restoration Account") of funds (including any
Casualty and Condemnation Proceeds which are available and are released
to Lessee pursuant to Subparagraph 3.04(f)) in the amount which Lessor
determines is needed to complete and fully pay all costs of the repair
or restoration (including taxes, financing charges, insurance and rent
during the repair period);
(ii) The establishment of an arrangement for lien releases and
disbursement of funds acceptable to Lessor and in a manner and upon such
terms and conditions as would be required by a prudent interim
construction lender; and
(iii) The delivery to Lessor of the following, each in form and
substance acceptable to Lessor;
(A) Evidence that the Property can, in Lessor's
reasonable judgment, with diligent restoration or repair, be
returned to a condition at least equal to the condition thereof
that existed prior to the Casualty or
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partial Condemnation causing the loss or damage within the
earlier to occur of (A) six (6) months after the occurrence of
the Casualty or Condemnation and (B) unless Lessee currently is
exercising either the Term Purchase Option or the Expiration
Date Purchase Option, six (6) months prior to the Scheduled
Expiration Date;
(B) Evidence that all necessary governmental approvals
can be timely obtained to allow the rebuilding and reoccupancy
of the Property;
(C) Copies of all plans and specifications for the work;
(D) Copies of all contracts for the work, signed by a
contractor reasonably acceptable to Lessor;
(E) A cost breakdown for the work;
(F) A payment and performance bond for the work or other
security satisfactory to Lender;
(G) Evidence that, upon completion of the work, the
size, capacity and total value of the Property will be at least
as great as it was before the Casualty or Condemnation occurred;
and
(H) Evidence of satisfaction of any additional
conditions that Lessor or Required Participants may reasonably
establish to protect their rights under this Agreement and the
other Operative Documents.
All plans and specifications for the work must be reasonably acceptable
to Lessor, except that Lessor's approval shall not be required if the
restoration work is based on the same plans and specifications as were
originally used to construct the Property. To the extent that the funds
in a Repair and Restoration Account include both Casualty and
Condemnation Proceeds and other funds deposited by Lessee, the other
funds deposited by Lessee shall be used first. Lessee acknowledges that
the specific conditions described above are reasonable.
(d) Prosecution of Claims for Casualty and Condemnation Proceeds. Lessee
shall proceed promptly and diligently to prosecute in good faith the settlement
or compromise of any and all claims for Casualty and Condemnation Proceeds;
provided, however, that any settlement or compromise of any such claim shall,
except as otherwise provided in clause (x) of Subparagraph 3.03(c), be subject
to the written consent of Lessor and Required Participants, which consents shall
not be unreasonably withheld. Lessor may participate in any proceedings relating
to such claims, and, after the occurrence and during the continuance of any
Event of Default, Lessor is hereby authorized, in its own name or in Lessee's
name, to adjust any loss covered by insurance or any Casualty or Condemnation
claim or cause of action, and to settle or compromise any claim or cause of
action in connection therewith, and Lessee shall from time to time deliver to
Lessor any and all further assignments and other instruments required to permit
such participation.
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(e) Assignment of Casualty and Condemnation Proceeds. Lessee hereby
absolutely and irrevocably assigns to Lessor all Casualty and Condemnation
Proceeds and all claims relating thereto. Except as otherwise provided in clause
(x) of Subparagraph 3.03(c), Lessee agrees that all Casualty and Condemnation
Proceeds are to be paid to Lessor and Lessee hereby authorizes and directs any
insurer, Governmental Authority or other Person responsible for paying any
Casualty and Condemnation Proceeds to make payment thereof directly to Lessor
alone, and not to Lessor and Lessee jointly. If Lessee receives any Casualty and
Condemnation Proceeds payable to Lessor hereunder, Lessee shall promptly pay
over such Casualty and Condemnation Proceeds to Lessor. Lessee hereby covenants
that until such Casualty and Condemnation Proceeds are so paid over to Lessor,
Lessee shall hold such Casualty and Condemnation Proceeds in trust for the
benefit of Lessor and shall not commingle such Casualty and Condemnation
Proceeds with any other funds or assets of Lessee or any other Person. Except as
otherwise provided in clause (x) of Subparagraph 3.03(c), Lessor may commence,
appear in, defend or prosecute any assigned right, claim or action, and may
adjust, compromise, settle and collect all rights, claims and actions assigned
to Lessor, but shall not be responsible for any failure to collect any such
right, claim or action, regardless of the cause of the failure.
(f) Use of Casualty and Condemnation Proceeds.
(i) If (A) no Event of Default has occurred and is continuing,
(B) Lessee exercises the repair and restoration option pursuant to
Subparagraphs 3.04(b) and 3.04(c) and (C) Lessee complies with any
conditions imposed pursuant to Subparagraph 3.04(c); then Lessor shall
release any Casualty and Condemnation Proceeds to Lessee for repair or
restoration of the Property, but may condition such release and use of
the Casualty and Condemnation Proceeds upon deposit of the Casualty and
Condemnation Proceeds in a Repair and Restoration Account. Lessor shall
have the option, upon the completion of such restoration of the
Property, to apply any surplus Casualty and Condemnation Proceeds
remaining after the completion of such restoration to the payment of
Rent and/or the reduction of the Outstanding Lease Amount,
notwithstanding that such amounts are not then due and payable or that
such amounts are otherwise adequately secured.
(ii) If (A) an Event of Default has occurred and is continuing,
(B) Lessee fails to or is unable to comply with any conditions imposed
pursuant to Subparagraph 3.04(c) or (C) Lessee elects to exercise the
Term Purchase Option and purchase the Property pursuant to the Purchase
Agreement; then, at the absolute discretion of Lessor and the Required
Participants, regardless of any impairment of security or lack of
impairment of security, but subject to applicable Governmental Rules
governing use of Casualty and Condemnation Proceeds, if any, Lessor may
(1) apply all or any of the Casualty and Condemnation Proceeds it
receives to the expenses of Lessor Parties in obtaining such proceeds;
(2) apply the balance to the payment of Rent and/or the reduction of the
Outstanding Lease Amount, notwithstanding that such amounts are not then
due and payable or that such amounts are otherwise adequately secured
and/or (3) release all or any part
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of such proceeds to Lessee upon any conditions Lessor and the Required
Participants may elect.
(iii) Lessor shall apply any Casualty and Condemnation Proceeds
which are to be used to reduce the Outstanding Lease Amount only on the
last day of a Rental Period unless a Default has occurred and is
continuing.
(iv) Application of all or any portion of the Casualty and
Condemnation Proceeds, or the release thereof to Lessee, shall not cure
or waive any Default or notice of default or invalidate any acts done
pursuant to such notice.
3.05. Taxes. Subject to Paragraph 3.12 relating to permitted contests,
Lessee shall promptly pay when due all Indemnified Taxes imposed on or payable
by Lessee or any Lessor Party in connection with the Property, this Agreement or
any of the other Operative Documents, or any of the transactions contemplated
hereby or thereby. As promptly as possible after any Indemnified Taxes are
payable by Lessee, Lessee shall send to Lessor for the account of the applicable
Lessor Party a certified copy of an original official receipt received by Lessee
showing payment thereof. If Lessee fails to pay any such Indemnified Taxes when
due to the appropriate taxing authority or fails to remit to Lessor the required
receipts or other required documentary evidence, Lessee shall indemnify the
Lessor Parties for any incremental taxes, interest or penalties that may become
payable by the Lessor Parties as a result of any such failure. The obligations
of Lessee under this Paragraph 3.05 shall survive the payment and performance of
the Lessee Obligations and the termination of this Agreement.
3.06. Environmental Matters.
(a) Lessee's Covenants. Lessee shall not cause or permit
Hazardous Materials to be used, generated, manufactured, stored,
treated, disposed of, transported or present on or released or
discharged from the Property in any manner that is reasonably likely to
have a Material Adverse Effect. Lessee may use Hazardous Materials in
connection with the operation of its business (or the business of
permitted subtenants) so long as such use is consistent with the
preceding sentence. Lessee shall immediately notify Lessor in writing of
(i) the discovery of any Hazardous Materials on, under or about the
Property; (ii) any knowledge by Lessee that the Property does not comply
with any Environmental Laws; (iii) any claims against Lessee or the
Property relating to Hazardous Materials or pursuant to Environmental
Laws; and (iv) the discovery of any occurrence or condition on any real
property adjoining or in the vicinity of the Property that could cause
the Property or any part thereof to be designated as "border zone
property" under the provisions of California Health and Safety Code
Sections 25220 et seq. or any regulation adopted in accordance
therewith. In response to the presence of any Hazardous Materials on,
under or about the Property, Lessee shall immediately take, at Lessee's
sole expense, all remedial action required by any Environmental Laws or
any judgment, consent decree, settlement or compromise in respect to any
claim based thereon.
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(b) Inspection By Lessor. Upon reasonable prior notice to
Lessee, Lessor, its employees and agents, may from time to time (whether
before or after the commencement of a nonjudicial or judicial
foreclosure proceeding), enter and inspect the Property for the purpose
of determining the existence, location, nature and magnitude of any past
or present release or threatened release of any Hazardous Materials
into, onto, beneath or from the Property.
(c) Indemnity. Without in any way limiting any other indemnity
contained in this Agreement or any other Operative Document, Lessee
agrees to defend, indemnify and hold harmless the Lessor Parties and the
other Indemnitees from and against any claim, loss, damage, cost,
expense or liability directly or indirectly arising out of (i) the use,
generation, manufacture, storage, treatment, release, threatened
release, discharge, disposal, transportation or presence of any
Hazardous Materials which are found in, on, under or about the Property
or (ii) the breach of any covenant, representation or warranty of Lessee
relating to Hazardous Materials or Environmental Laws contained in this
Agreement or any Operative Document. This indemnity shall include (A)
the costs, whether foreseeable or unforeseeable, of any investigation,
repair, cleanup or detoxification of the Property which is required by
any Governmental Authority or is otherwise necessary to render the
Property in compliance with all Environmental Laws; (B) all other direct
or indirect consequential damages (including any third party claims,
claims by any Governmental Authority, or any fines or penalties against
the Indemnitees; and (C) all court costs and attorneys' fees (including
expert witness fees and the cost of any consultants) paid or incurred by
the Indemnitees. Lessee shall pay immediately upon Lessor's demand any
amounts owing under this indemnity. Lessee shall use legal counsel
reasonably acceptable to Lessor in any action or proceeding arising
under this indemnity. The obligations of Lessee under this Subparagraph
3.06(c) shall survive the payment and performance of the Lessee
Obligations and the termination of this Agreement.
(d) Legal Effect of Section. Lessee and Lessor agree that (i)
this Paragraph 3.06 and clause (i) of Subparagraph 4.01(s) of the
Participation Agreement are intended as Lessor's written request for
information (and Lessee's response) concerning the environmental
condition of the real property security as required by California Code
of Civil Procedure Section 726.5 and (ii) each representation and
warranty and covenant herein and therein (together with any indemnity
applicable to a breach of any such representation and warranty) with
respect to the environmental condition of the Property is intended by
Lessor and Lessee to be an "environmental provision" for purposes of
California Code of Civil Procedure Section 736.
3.07. Liens, Easements, Etc.
(a) Lessee's Covenants. Subject to Paragraph 3.12 relating to
permitted contests, Lessee shall not create, incur, assume or permit to
exist any Lien or easement on or with respect to any of the Property of
any character, whether now owned or hereafter acquired, except for the
following ("Permitted Property Liens"):
(i) Liens in favor of a Lessor Party securing the Lessee
Obligations;
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(ii) Liens and easements in existence on the
Commencement Date to the extent reflected in the title insurance
policies delivered to Agent pursuant to Paragraphs 3.01 and 3.02
of and Schedules 3.01 and 3.02 to the Participation Agreement
and approved by Lessor;
(iii) Liens and easements approved by Lessor and
reflected in the title insurance policy or policies or binders
to be delivered in connection with any Land added hereto after
the date hereof;
(iv) Liens for taxes or other Governmental Charges not
at the time delinquent or thereafter payable without penalty;
(v) Liens of carriers, warehousemen, mechanics,
materialmen and vendors and other similar Liens imposed by law
incurred in the ordinary course of business for sums not
overdue; and
(vi) Lessor Liens.
Subject to Paragraph 3.12 relating to permitted contests, Lessee
shall promptly (A) pay all Indebtedness of Lessee and other obligations
prior to the time the non-payment thereof would give rise to a Lien on
the Property and (B) discharge, at its sole cost and expense, any Lien
on the Property which is not a Permitted Property Lien.
(b) No Consents. Nothing contained in this Agreement shall be
construed as constituting the consent or request of any Lessor Party,
express or implied, to or for the performance by any contractor,
mechanic, laborer, materialman, supplier or vendor of any labor or
services or for the furnishing of any materials for any construction,
alteration, addition, repair or demolition of or to the Property or any
part thereof. NOTICE IS HEREBY GIVEN THAT NO LESSOR PARTY IS OR SHALL BE
LIABLE FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE FURNISHED
TO LESSEE, OR TO ANYONE HOLDING THE PROPERTY OR ANY PART THEREOF THROUGH
OR UNDER LESSEE, AND THAT NO MECHANIC'S OR OTHER LIENS FOR ANY SUCH
LABOR, SERVICES OR MATERIALS SHALL ATTACH TO OR AFFECT THE INTEREST OF
ANY LESSOR PARTY IN AND TO THE PROPERTY.
3.08. Subletting. Lessee may, in the ordinary course of business,
sublease the Property or any portion thereof to any Person, provided, that (a)
Lessee remains directly and primarily liable for performing its obligations
under this Agreement and all other Lessee Obligations; (b) each sublease is
subject to and subordinated to this Agreement; (c) each sublease has a term
which expires on or prior to the Scheduled Expiration Date (or, if longer,
includes a provision that the sublease terminates on the Expiration Date if such
Expiration Date occurs prior to the Scheduled Expiration Date unless Lessee
purchases the Property on the Expiration Date pursuant to the Purchase
Agreement); (d) each sublease prohibits the sublessee from engaging in any
activities on the Property other than those permitted by Paragraph 2.04; and (e)
no sublease has a Material Adverse Effect. Any sublease which does not satisfy
each of the requirements of the immediately preceding sentence shall be null and
void as to the Lessor Parties and their
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successor and assigns. Except for such permitted subleases, Lessee shall not
assign any of its rights or interests under this Agreement to any other Person.
3.09. Utility Charges. Lessee shall pay all charges for electricity,
power, gas, oil, water, telephone, sanitary sewer service and all other
utilities and services to, on or in connection with the Property during the
Term.
3.10. Removal of Property. Lessee shall not remove any Improvements from
the Land or any other Property from the Land or Improvements, except that,
during the Term, Lessee may remove any Modification or any trade fixture,
machinery, equipment, inventory or other personal property if such Modification
or property (a) was not financed by an Advance, (b) is not required by any
applicable Governmental Rule or Insurance Requirement and (c) is readily
removable without impairing the value, utility or remaining useful life of the
Property.
3.11. Compliance with Governmental Rules and Insurance Requirements.
Lessee, at its sole cost and expense, shall, unless its failure is not
reasonably likely to have a Material Adverse Effect, (a) comply, and cause its
agents, sublessees, assignees, employees, invitees, licensees, contractors and
tenants, and the Property to comply, with all Governmental Rules and Insurance
Requirements relating to the Property (including the construction, use,
operation, maintenance, repair and restoration thereof, whether or not
compliance therewith shall require structural or extraordinary changes in the
Improvements or interfere with the use and enjoyment of the Property), and (b)
procure, maintain and comply with all licenses, permits, orders, approvals,
consents and other authorizations required for the construction, use,
maintenance and operation of the Property and for the use, operation,
maintenance, repair and restoration of the Improvements.
3.12. Permitted Contests. Lessee, at its sole cost and expense, may
contest any alleged Lien or easement on any of the Property or any alleged
Governmental Charge, Indebtedness or other obligation which is payable by Lessee
hereunder to Persons other than the Lessor Parties or which, if unpaid, would
give rise to a Lien on any of the Property, provided that (a) each such contest
is diligently pursued in good faith by appropriate proceedings; (b) the
commencement and continuation of such proceedings suspends the enforcement of
such Lien or easement or the collection of such Governmental Charge,
Indebtedness or obligation; (c) Lessee has established adequate reserves for the
discharge of such Lien or easement or the payment of such Governmental Charge,
Indebtedness or obligation in accordance with GAAP and, if the failure to
discharge such Lien or easement or the failure to pay such Governmental Charge,
Indebtedness or obligation might result in any civil liability for any Lessor
Party, Lessee has provided to such Lessor Party a bond or other security
satisfactory to such Lessor Party; (d) the failure to discharge such Lien or
easement or the failure to pay such Governmental Charge, Indebtedness or
obligation could not result in any criminal liability for any Lessor Party; (e)
the failure to discharge such Lien or easement or the failure to pay such
Governmental Charge, Indebtedness or obligation is not otherwise reasonably
likely to have a Material Adverse Effect; and (f) unless Lessee currently is
exercising either the Term Purchase Option or the Expiration Date Purchase
Option, any such contest is completed and such Lien or easement is discharged
(either pursuant to such proceedings or otherwise) or such Governmental Charge,
Indebtedness or obligation is declared invalid, paid or otherwise satisfied not
later than six (6) months prior to the Scheduled Expiration Date.
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3.13. Lessor Obligations; Right to Perform Lessee Obligations. No Lessor
Party shall have any obligation to (a) maintain, repair or make any improvements
to the Property, (b) maintain any insurance on the Property, (c) perform any
other obligation of Lessee under this Agreement or any other Lessee Obligation,
(d) make any expenditure on account of the Property (except to make Advances as
required by the Participation Agreement) or (e) take any other action in
connection with the Property, this Agreement or any other Operative Document,
except as expressly provided herein or in another Operative Document; provided
however, that Lessor may, in its sole discretion and without any obligation to
do so, perform any Lessee Obligation not performed by Lessee when required.
Lessor may enter the Property or exercise any other right of Lessee under this
Agreement or any other Operative Document to the extent Lessor determines in
good faith that such entry or exercise is reasonably necessary for Lessor to
perform any such Lessee Obligation not performed by Lessee when required. Lessee
shall reimburse Lessor and the other Lessor Parties, within five (5) Business
Days after demand, for all fees, costs and expenses incurred by them in
performing any such obligation or curing any Default.
3.14. Inspection Rights. During the Term, Lessee shall permit any Person
designated by Lessor, upon reasonable notice and during normal business hours,
to visit and inspect any of the Property.
SECTION 4. EXPIRATION DATE.
4.01. Termination by Lessee Prior to Scheduled Expiration Date. Subject
to the terms and conditions of the Purchase Agreement, Lessee may, at any time
prior to the Scheduled Expiration Date, terminate this Agreement and purchase
the Property pursuant to Section 2 of the Purchase Agreement. Lessee shall
notify Lessor of Lessee's election so to terminate this Agreement and purchase
the Property by delivering to Agent a Notice of Term Purchase Option Exercise
pursuant to and in accordance with the provisions of Paragraph 2.01 of the
Purchase Agreement.
4.02. Surrender of Property. Unless Lessee purchases the Property on the
Expiration Date pursuant to the Purchase Agreement, Lessee shall vacate and
surrender the Property to Lessor on the Expiration Date in its then-current
condition, subject to compliance by Lessee on or prior to such date of its
obligations under this Agreement and the other Operative Documents (including
the completion of the New Improvements and all Modifications, the completion of
all permitted contests and the removal of all Liens which are not Permitted
Property Liens of the types described in clauses (i), (ii), (iii), (iv) and (vi)
of Subparagraph 3.07(a)).
4.03. Holding Over. If Lessee does not purchase the Property on the
Expiration Date pursuant to the Purchase Agreement but continues in possession
of any portion of the Property after the Expiration Date, Lessee shall pay rent
for each day it so continues in possession, payable upon demand of Lessor, at a
per annum rate equal to the Alternate Rental Rate plus two percent (2.0%) and
shall pay and perform all of its other Lessee Obligations under this Agreement
and the other Operative Documents in the same manner as though the Term had not
ended; provided, however, that this Paragraph 4.03 shall not be interpreted to
permit such holding over or to limit any right or remedy of Lessor for such
holding over.
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SECTION 5. DEFAULT.
5.01. Events of Default. The occurrence or existence of any one or more
of the following shall constitute an "Event of Default" hereunder:
(a) Non-Payment. Lessee shall (i) fail to pay on the Expiration
Date any amount payable by Lessee under this Agreement or any other
Operative Document on or prior to such date, (ii) fail to pay within
five (5) business days after any Scheduled Rent Payment Date any Base
Rent payable on such Scheduled Rent Payment Date (other than the Base
Rent payable on the Expiration Date) or (iii) fail to pay within thirty
(30) days after the same becomes due, any Supplemental Rent or other
amount required under the terms of this Agreement or any other Operative
Document (other than any such amount payable on the Expiration Date or
Base Rent); or
(b) Specific Defaults. Lessee or any of its Subsidiaries shall
fail to observe or perform any covenant, obligation, condition or
agreement set forth in Subparagraph 3.01(d) hereof or in Paragraph 5.02
or Paragraph 5.03 of the Participation Agreement; or
(c) Other Defaults. Lessee or any of its Subsidiaries shall fail
to observe or perform any other covenant, obligation, condition or
agreement contained in this Agreement or any other Operative Document
and such failure shall continue for a period of thirty (30) days after
written notice thereof from Lessor; provided, however, that, if such
failure cannot reasonably be cured within such thirty (30) day period,
such failure shall not constitute an Event of Default hereunder if
Lessee (i) promptly commences to cure such failure within such thirty
(30) day period, (ii) thereafter diligently pursues such cure to
completion, and (iii) completes such cure not later than the earlier of
(A) the Expiration Date, if Lessee is exercising the Marketing Option,
and (B) one hundred and twenty days (120) days after Lessor's notice of
such failure; or
(d) Representations and Warranties. Any representation,
warranty, certificate, information or other statement (financial or
otherwise) made or furnished by or on behalf of Lessee or any of its
Subsidiaries to any Lessor Party in or in connection with this Agreement
or any other Operative Document, or as an inducement to any Lessor Party
to enter into this Agreement or any other Operative Document, shall be
false, incorrect, incomplete or misleading in any material respect when
made or furnished; or
(e) Cross-Default. (i) Lessee or any of its Subsidiaries shall
fail to make any payment when due on account of any Indebtedness of such
Person (other than the Lessee Obligations and trade payables) and such
failure shall continue beyond any period of grace provided with respect
thereto, if the amount of such Indebtedness exceeds $40,000,000 or the
effect of such failure is to cause, or permit the holder or holders
thereof to cause, Indebtedness of Lessee and its Subsidiaries (other
than the Lessee Obligations) in an aggregate amount exceeding
$40,000,000 to become due or (ii) Lessee or any of its Subsidiaries
shall otherwise fail to observe or perform any agreement, term or
condition contained in any agreement or instrument relating to any
Indebtedness of such Person (other than the Lessee Obligations and trade
payables), or any other event shall occur or condition shall exist, if
the effect of such failure, event or condition is to
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cause, or permit the holder or holders thereof to cause, Indebtedness of
Lessee and its Subsidiaries (other than the Lessee Obligations) in an
aggregate amount exceeding $40,000,000 to become due (and/or to be
secured by cash collateral); or
(f) Insolvency, Voluntary Proceedings. Lessee or any of its
Material Subsidiaries shall (i) apply for or consent to the appointment
of a receiver, trustee, liquidator or custodian of itself or of all or a
substantial part of its property, (ii) be unable, or admit in writing
its inability, to pay its debts generally as they mature, (iii) make a
general assignment for the benefit of its or any of its creditors, (iv)
be dissolved or liquidated in full or in part, (v) become insolvent (as
such term may be defined or interpreted under any applicable statute),
(vi) commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in
effect or consent to any such relief or to the appointment of or taking
possession of its property by any official in an involuntary case or
other proceeding commenced against it, or (vi) take any action for the
purpose of effecting any of the foregoing; or
(g) Involuntary Proceedings. Proceedings for the appointment of a
receiver, trustee, liquidator or custodian of Lessee or any of its
Material Subsidiaries or of all or a substantial part of the property
thereof, or an involuntary case or other proceedings seeking
liquidation, reorganization or other relief with respect to Lessee or
any of its Material Subsidiaries or the debts thereof under any
bankruptcy, insolvency or other similar law now or hereafter in effect
shall be commenced and an order for relief entered or such proceeding
shall not be dismissed or discharged within thirty (30) days of
commencement; or
(h) Judgments. (i) One or more judgments, orders, decrees or
arbitration awards requiring Lessee and/or its Subsidiaries to pay an
aggregate amount of $40,000,000 or more (exclusive of amounts covered by
insurance issued by an insurer not an Affiliate of Lessee and otherwise
satisfying the requirements set forth in Subparagraph 3.03(b)) shall be
rendered against Lessee and/or any of its Subsidiaries in connection
with any single or related series of transactions, incidents or
circumstances and the same shall not be satisfied, vacated or stayed for
a period of thirty (30) consecutive days after issue or levy; (ii) any
judgment, writ, assessment, warrant of attachment, tax lien or execution
or similar process shall be issued or levied against a substantial part
of the property of Lessee or any of its Subsidiaries and the same shall
not be released, stayed, vacated or otherwise dismissed within thirty
(30) days after issue or levy; or (iii) any other judgments, orders,
decrees, arbitration awards, writs, assessments, warrants of attachment,
tax liens or executions or similar processes which, alone or in the
aggregate, are reasonably likely to have a Material Adverse Effect are
rendered, issued or levied; or
(i) Operative Documents. Any Operative Document or any material
term thereof shall cease to be, or be asserted by Lessee or any of its
Subsidiaries not to be, a legal, valid and binding obligation of Lessee
or any of its Subsidiaries enforceable in accordance with its terms; or
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(j) ERISA. Any Reportable Event which constitutes grounds for
the termination of any Employee Benefit Plan by the PBGC or for the
appointment of a trustee by the PBGC to administer any Employee Benefit
Plan shall occur, or any Employee Benefit Plan shall be terminated
within the meaning of Title IV of ERISA or a trustee shall be appointed
by the PBGC to administer any Employee Benefit Plan; or
(k) Major Casualty or Condemnation. Any Major Casualty or Major
Condemnation affecting the Property shall occur; or
(l) Change of Control. Any Change of Control shall occur;
Provided, however, that any such Event of Default (except any Event of Default
under Subparagraph 5.01(f) or Subparagraph 5.01(g)) shall be deemed cured and
shall cease to be an Event of Default hereunder if, prior to the time any Lessor
Party begins to exercise any of its rights and remedies for an Event of Default
under the Operative Documents, Lessee delivers to Lessor:
(A) In the case of any Event of Default occurring under
Subparagraph 5.01(e), written evidence that the Persons owing the
applicable Indebtedness have made the required payment in the case of a
failure to pay and, in all cases (including failure to pay), all holders
of such Indebtedness have waived (without the payment by the Persons
owing such Indebtedness of any waiver fee, penalty or other similar
payment or the provision by such Persons of additional collateral) such
holders' rights to cause such Indebtedness to become due (and/or to be
secured by cash collateral); and
(B) In the case of all other Events of Default (except Events of
Default under Subparagraph 5.01(f) or Subparagraph 5.01(g)), written
evidence that such Events of Default have been cured.
5.02. General Remedies. In all cases, upon the occurrence or existence
of any Event of Default and at any time thereafter unless such Event of Default
is waived, Lessor may, with the consent of the Required Participants, or shall,
upon instructions from the Required Participants, exercise any one or more of
the following rights and remedies (except that the remedy set forth in the first
sentence of Subparagraph 5.02(a) shall be automatic):
(a) Termination of Commitments. If such Event of Default is an
Event of Default of the type described in Subparagraph 5.01(f) or
Subparagraph 5.01(g) affecting Lessee, immediately and without notice
the obligation of Lessor to make Advances and the obligations of the
Participants to fund Advances shall automatically terminate. If such
Event of Default is any other Event of Default, Lessor may by written
notice to Lessee, terminate the obligation of Lessor to make Advances
and the obligations of the Participants to fund Advances.
(b) Appointment of a Receiver. Lessor may apply to any court of
competent jurisdiction for, and obtain appointment of, a receiver for
the Property.
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(c) Specific Performance. Lessor may bring an action in any
court of competent jurisdiction to obtain specific enforcement of any of
the covenants or agreements of Lessee in this Agreement or any of the
other Operative Documents.
(d) Collection of Issues and Profits. Lessor may collect Issues
and Profits as provided in Subparagraph 2.07(c) and apply the proceeds
to pay Lessee Obligations.
(e) Protection of Property. Lessor may enter, take possession of,
manage and operate all or any part of the Property or take any other
actions which it reasonably determines are necessary to protect the
Property and the rights and remedies of the Lessor Parties under this
Agreement and the other Operative Documents, including (i) taking and
possessing all of Lessee's books and records relating to the Property;
(ii) entering into, enforcing, modifying, or canceling subleases on such
terms and conditions as Lessor may consider proper; (iii) obtaining and
evicting tenants; (iv) fixing or modifying sublease rents; (v)
collecting and receiving any payment of money owing to Lessee; (vi)
completing any unfinished Improvements; and/or (vii) contracting for and
making repairs and alterations.
(f) Other Rights and Remedies. In addition to the specific
rights and remedies set forth above in this Paragraph 5.02 and in
Paragraph 5.03 and Paragraph 5.04, Lessor may exercise any other right,
power or remedy permitted to it by any applicable Governmental Rule,
either by suit in equity or by action at law, or both.
5.03. Lease Remedies. If the transaction evidenced by this Agreement and
the other Operative Documents is treated as a lease, upon the occurrence or
existence of any Event of Default and at any time thereafter unless such Event
of Default is waived, Lessor may, with the consent of the Required Participants,
or shall, upon instructions from the Required Participants, exercise any one or
more of the following rights and remedies in addition to those rights and
remedies set forth in Paragraph 5.02:
(a) Termination of Lease. Lessor may, by written notice to
Lessee, terminate this Agreement on a Termination Date which is prior to
the Scheduled Expiration Date, subject to Subparagraph 3.02(1) of the
Purchase Agreement. Such Termination Date shall be the last day of a
Rental Period unless Required Participants shall otherwise direct. On
such Termination Date (which shall then be the Expiration Date), Lessee
shall pay all unpaid Base Rent accrued through such date, all
Supplemental Rent due and payable on or prior to such date and all other
amounts payable by Lessee on the Expiration Date pursuant to this
Agreement and the other Operative Documents. Lessee also shall pay to
Lessor, in addition to all accrued Base Rent, the worth at the time of
such payment of the amount by which the unpaid Base Rent through the
Scheduled Expiration Date exceeds the amount of such rental loss for the
same period that Lessee proves could reasonably be avoided.
(b) Continuation of Lease. Lessor may exercise the rights and
remedies provided by California Civil Code Section 1951.4, including the
right to continue this Agreement in effect after Lessee's breach and
abandonment and recover Rent as it becomes due. Acts of maintenance or
preservation, efforts to relet the Property, the
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appointment of a receiver upon Lessor's initiative to protect its
interest under this Agreement or withholding consent to or terminating a
sublease shall not of themselves constitute a termination of Lessee's
right to possession.
(c) Removal and Storage of Property. Lessor may enter the
Property and remove therefrom all Persons and property, store such
property in a public warehouse or elsewhere at the cost of and for the
account of Lessee and sell such property and apply the proceeds
therefrom pursuant to applicable California law.
5.04. Loan Remedies. If the transaction evidenced by this Agreement and
the other Operative Documents is treated as a loan, upon the occurrence or
existence of any Event of Default and at any time thereafter unless such Event
of Default is waived, Lessor may, with the consent of the Required Participants,
or shall, upon instructions from the Required Participants, exercise any one or
more of the following rights and remedies in addition to those rights and
remedies set forth in Paragraph 5.02:
(a) Acceleration of Lessee Obligations. Lessor may, by written
notice to Lessee, terminate this Agreement on a Termination Date which
is prior to the Scheduled Expiration Date, subject to Subparagraph
3.02(1) of the Purchase Agreement, and declare all unpaid Lessee
Obligations due and payable on such Termination Date. Such Termination
Date shall be the last day of a Rental Period unless Required
Participants shall otherwise direct. On such Termination Date (which
shall then be the Expiration Date), Lessee shall pay all unpaid Base
Rent accrued through such date, all Supplemental Rent due and payable on
or prior to such date and all other amounts payable by Lessee on the
Expiration Date pursuant to this Agreement and the other Operative
Documents.
(b) Uniform Commercial Code Remedies. Lessor may exercise any or
all of the remedies granted to a secured party under the California
Uniform Commercial Code.
(c) Judicial Foreclosure. Lessor may bring an action in any
court of competent jurisdiction to foreclose the security interest in
the Property granted to Lessor by this Agreement or any of the other
Operative Documents.
(d) Power of Sale. Lessor may cause some or all of the Property,
including any Personal Property Collateral, to be sold under a power of
sale or otherwise disposed of in any combination and in any manner
permitted by applicable Governmental Rules.
(i) Sales of Personal Property. Lessor may dispose of any
Personal Property Collateral separately from the sale of Real
Property Collateral, in any manner permitted by Division 9 of the
California Uniform Commercial Code, including any public or
private sale, or in any manner permitted by any other applicable
Governmental Rule. Any proceeds of any such disposition shall not
cure any Event of Default or reinstate any Lessee Obligation for
purposes of Section 2924c of the California Civil Code. In
connection with any such sale or other disposition, Lessee agrees
that the following procedures constitute a commercially
reasonable sale:
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(A) Lessor shall mail written notice of the sale
to Lessee not later than thirty (30) days prior to such
sale.
(B) Once per week during the three (3) weeks
immediately preceding such sale, Lessor will publish
notice of the sale in a local daily newspaper of general
circulation.
(C) Upon receipt of any written request, Lessor
will make the Property available to any bona fide
prospective purchaser for inspection during reasonable
business hours.
(D) Notwithstanding, Lessor shall be under no
obligation to consummate a sale if, in its judgment,
none of the offers received by it equals the fair value
of the Property offered for sale.
(E) If Lessor so requests, Lessee shall assemble
all of the Personal Property Collateral and make it
available to Lessor at the site of the Land. Regardless
of any provision of this Agreement or any other
Operative Document, Lessor shall not be considered to
have accepted any property other than cash or
immediately available funds in satisfaction of any
Lessee Obligation, unless Lessor has given express
written notice of its election of that remedy in
accordance with California Uniform Commercial Code
Section 9505.
The foregoing procedures do not constitute the only procedures
that may be commercially reasonable.
(ii) Lessor's Sales of Real Property or Mixed Collateral.
Lessor may choose to dispose of some or all of the Property which
consists solely of Real Property Collateral in any manner then
permitted by applicable Governmental Rules, including without
limitation a nonjudicial trustee's sale pursuant to California
Civil Code ss.ss. 2924 et seq. In its discretion, Lessor may also
or alternatively choose to dispose of some or all of the
Property, in any combination consisting of both Real Property
Collateral and Personal Property Collateral, together in one sale
to be held in accordance with the law and procedures applicable
to real property, as permitted by Section 9501(4) of the
California Uniform Commercial Code. Lessee agrees that such a
sale of Personal Property Collateral together with Real Property
Collateral constitutes a commercially reasonable sale of the
Personal Property Collateral. (For purposes of this power of
sale, either a sale of Real Property Collateral alone, or a sale
of both Real Property Collateral and Personal Property Collateral
together in accordance with California Uniform Commercial Code
Section 9501(4), will sometimes be referred to as a "Lessor's
Sale.")
(A) Before any Lessor's Sale, Lessor shall give such
notice of default and election to sell as may then be required
by applicable Governmental Rules.
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(B) When all time periods then legally mandated have
expired, and after such notice of sale as may then be legally
required has been given, Lessor shall sell the property being
sold at a public auction to be held at the time and place
specified in the notice of sale.
(C) Neither Lessor nor Agent shall have any obligation
to make demand on Lessee before any Lessor's Sale.
(D) From time to time in accordance with then applicable
law, Lessor may postpone any Lessor's Sale by public
announcement at the time and place noticed for that sale.
(E) At any Lessor's Sale, Lessor shall sell to the
highest bidder at public auction for cash in lawful money of the
United States.
(F) Lessor shall execute and deliver to the purchaser(s)
a deed or deeds conveying the Property being sold without any
covenant or warranty whatsoever, express or implied. The
recitals in any such deed of any matters or facts, including any
facts bearing upon the regularity or validity of any Lessor's
Sale, shall be conclusive proof of their truthfulness. Any such
deed shall be conclusive against all Persons as to the facts
recited in it.
(e) Foreclosure Sales.
(i) Single or Multiple. If the Property consists of more
than one lot, parcel or item of property, Lessor may:
(A) Designate the order in which the lots,
parcels and/or items shall be sold or disposed of or
offered for sale or disposition; and
(B) Elect to dispose of the lots, parcels and/or
items through a single consolidated sale or disposition
to be held or made under the power of sale granted in
Subparagraph 5.04(d), or in connection with judicial
proceedings, or by virtue of a judgment and decree of
foreclosure and sale; or through two or more such sales
or dispositions; or in any other manner Lessor may deem
to be in its best interests (any such sale or
disposition, a "Foreclosure Sale;" any two or more, "
Foreclosure Sales").
If Lessor chooses to have more than one Foreclosure Sale, Lessor
at its option may cause the Foreclosure Sales to be held
simultaneously or successively, on the same day, or on such
different days and at such different times and in such order as
it may deem to be in its best interests. No Foreclosure Sale
shall terminate or affect the security interests granted to
Lessor in the Property by this Agreement on any part of the
Property which has not been sold, until all of the Lessee
Obligations have been paid in full.
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(ii) Credit Bids. At any Foreclosure Sale, any Person, including
any Lessor Party, may bid for and acquire the Property or any part of it
to the extent permitted by then applicable Governmental Rules. Instead
of paying cash for that property, Lessor may settle for the purchase
price by crediting the sales price of the Property against the Lessee
Obligations in any order and proportions as Lessor in its sole
discretion may choose.
5.05. Remedies Cumulative. The rights and remedies of Lessor under this
Agreement and the other Operative Documents are cumulative and may be exercised
singularly, successively, or together.
5.06. No Cure or Waiver. Neither the performance by Lessor of any of
Lessee's obligations pursuant to Paragraph 3.13 nor the exercise by Lessor of
any of its other rights and remedies under this Agreement or any other Operative
Document (including the collection of Issues and Profits and the application
thereof to the Lessee Obligations) shall constitute a cure or waiver of any
Default or nullify the effect of any notice of default or sale, unless and until
all Lessee Obligations are paid in full.
5.07. Exercise of Rights and Remedies. The rights and remedies provided
to Lessor under this Agreement may be exercised by Lessor itself, by Agent
pursuant to Subparagraph 2.02(c) of the Participation Agreement, by a
court-appointed receiver or by any other Person appointed by any of the
foregoing to act on its behalf. All of the benefits afforded to Lessor under
this Agreement and the other Operative Documents shall accrue to the benefit of
Agent to the extent provided in Subparagraph 2.02(c) of the Participation
Agreement.
SECTION 6. MISCELLANEOUS.
6.01. Notices. Except as otherwise specified herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Lessee or Lessor under this Agreement shall be given as provided in Subparagraph
2.02(c) and Paragraph 7.01 of the Participation Agreement.
6.02. Waivers; Amendments. Any term, covenant, agreement or condition of
this Agreement may be amended or waived only as provided in the Participation
Agreement. No failure or delay by any Lessor Party in exercising any right
hereunder shall operate as a waiver thereof or of any other right nor shall any
single or partial exercise of any such right preclude any other further exercise
thereof or of any other right. Unless otherwise specified in any such waiver or
consent, a waiver or consent given hereunder shall be effective only in the
specific instance and for the specific purpose for which given.
6.03. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Lessor Parties and Lessee and their permitted
successors and assigns; provided, however, that the Lessor Parties and Lessee
shall not sell, assign or delegate their respective rights and obligations
hereunder except as provided in the Participation Agreement.
27
466
6.04. No Third Party Rights. Nothing expressed in or to be implied from
this Agreement is intended to give, or shall be construed to give, any Person,
other than the Lessor Parties and Lessee and their permitted successors and
assigns, any benefit or legal or equitable right, remedy or claim under or by
virtue of this Agreement or under or by virtue of any provision herein.
6.05. Partial Invalidity. If at any time any provision of this Agreement
is or becomes illegal, invalid or unenforceable in any respect under the law or
any jurisdiction, neither the legality, validity or enforceability of the
remaining provisions of this Agreement nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
6.06. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California without reference to
conflicts of law rules.
6.07. Counterparts. This Agreement may be executed in any number of
identical counterparts, any set of which signed by all the parties hereto shall
be deemed to constitute a complete, executed original for all purposes.
6.08. Nature of Lessee's Obligations.
(a) Independent Obligation. The obligation of Lessee to pay the amounts
payable by Lessee under this Agreement and the other Operative Documents and to
perform the other Lessee Obligation are absolute, unconditional and irrevocable
obligations which are separate and independent of the obligations of the Lessor
Parties under this Agreement and the other Operative Documents and all other
events and circumstances, including the events and circumstances set forth in
Subparagraph 6.08(c).
(b) No Termination or Abatement. This Agreement and the other Operative
Documents and Lessee's obligation to pay Rent and to pay and perform all other
Lessee Obligations shall continue in full force and effect without abatement
notwithstanding the occurrence or existence of any event or circumstance,
including any event or circumstance set forth in Subparagraph 6.08(c).
(c) Full Payment and Performance. Lessee shall make all payments under
this Agreement and the other Operative Documents in the full amounts and at the
times required by the terms of this Agreement and the other Operative Documents
without setoff, deduction or reduction of any kind and shall perform all other
Lessee Obligations as and when required, without regard to any event or
circumstances whatsoever, including (i) the condition of the Property (including
any Improvements to the Property made prior to the Commencement Date or during
the Term); (ii) title to the Property (including possession of the Property by
any Person or the existence of any Lien or any other right, title or interest in
or to any of the Property in favor of any Person); (iii) the value,
habitability, usability, design, operation or fitness for use of the Property;
(iv) the availability or adequacy of utilities and other services to the
Property; (v) any latent, hidden or patent defect in the Property; (vi) the
zoning or status of the Property or any other restrictions on the use of the
Property; (g) the economics of the Property; (vii) any Casualty or Condemnation;
(viii) the compliance of the Property with any applicable Governmental Rule
28
467
or Insurance Requirement; (ix) any failure by any Lessor Party to perform any of
its obligations under this Agreement or any other Operative Document; or (x) the
exercise by any Lessor Party of any of its remedies under this Agreement or any
other Operative Document; provided however, that this Paragraph 6.08 shall not
abrogate any right which Lessee may have to recover damages from any Lessor
Party for any material breach by such Lessor Party of its obligations under this
Agreement or any other Operative Document to the extent permitted hereunder or
thereunder.
[The signature page follows.]
29
468
IN WITNESS WHEREOF, Lessee and Lessor have caused this Agreement to be
executed as of the day and year first above written.
LESSEE: KLA-TENCOR CORPORATION
By:_________________________
Name:___________________
Title:__________________
LESSOR: LEASE PLAN U.S.A., INC.
By:_________________________
Name:___________________
Title:__________________
30
469
STATE OF CALIFORNIA ________________)
)ss
COUNTY OF __________________________)
On _____________, 1997, before me, ___________________ a Notary Public
in and for the State of California, personally appeared ______________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s) or the entity on behalf of which the person(s) acted,
executed the instrument.
Witness my hand and official seal.
[SEAL]
....................................
470
STATE OF CALIFORNIA ________________)
)ss
COUNTY OF __________________________)
On _____________, 1997, before me, ___________________ a Notary Public
in and for the State of California, personally appeared ____________, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s) or the entity on behalf of which the person(s) acted,
executed the instrument.
Witness my hand and official seal.
[SEAL]
....................................
471
EXHIBIT A
LAND
A-1
472
EXHIBIT B
RELATED GOODS
The personal property, among other goods, conveyed by BNP Leasing
Corporation to Lease Plan U.S.A., Inc. by Bill of Sale, Assignment of Contract
Rights and Intangible Assets dated as of November 12, 1997 with respect to Tract
2 and Tract 3.
B-1
473
EXHIBIT B(1)
SUPPLEMENT TO EXHIBIT B TO LEASE AGREEMENT
[Date]
Lease Plan U.S.A., Inc.
c/o ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndication Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to that certain Lease Agreement, dated as of
November 12, 1997 (the "Lease Agreement"), between KLA-Tencor Corporation
("Lessee") and Lease Plan U.S.A., Inc. ("Lessor").
2. Lessee hereby agrees that the description of "Related Goods" set
forth in Exhibit B to the Lease Agreement shall be supplemented by adding
thereto the Related Goods described in Attachment 1 hereto. Lessee hereby
accepts all such Related Goods and agrees that such Related Goods constitute
part of the Property subject to the Lease Agreement.
IN WITNESS WHEREOF, Lessee has executed this Supplement to Exhibit B on
the date set forth above.
LESSEE: KLA-TENCOR CORPORATION
By:_________________________
Name:___________________
Title:__________________
B(1)-1
474
ATTACHMENT 1
TO
SUPPLEMENT TO EXHIBIT B
B(1)(1)-1
475
EXHIBIT C
NOTICE OF RENTAL PERIOD SELECTION
[Date]
Lease Plan U.S.A., Inc.
c/o ABN AMRO Bank N.V.
as Agent
Capital Markets-Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
1. Reference is made to that certain Participation Agreement, dated as
of November 12,1997 (the "Participation Agreement"), among KLA-Tencor
Corporation ("Lessee"), Lease Plan U.S.A., Inc. ("Lessor"), the financial
institutions listed in Schedule I to the Participation Agreement (the
"Participants") and ABN AMRO Bank N.V., as agent for the Participants (in such
capacity, "Agent"). Unless otherwise indicated, all terms defined in the
Participation Agreement have the same respective meanings when used herein.
2. [Insert one of the following as appropriate]
[Pursuant to Subparagraph 2.03(a) of the Lease Agreement, Lessee
hereby irrevocably selects a new Rental Period for a Portion of the Outstanding
Lease Amount as follows:
(a) The Portion for which a new Rental Period is to be selected is the
Portion in the amount of $__________ with a current Rental Period which began on
________, ____ and ends on __________, ____; and
(b) The next Rental Period for such Portion shall be __________
month[s].]
[Pursuant to Subparagraph 2.03(a) of the Lease Agreement, Lessee
hereby irrevocably elects to divide a Portion of the Outstanding Lease Amount
into further Portions as follows:
(a) The Portion which is to be divided is the Portion in the amount of
$__________ with a current Rental Period which began on ________, ____ and ends
on __________, ____; and
(b) On the last day of the current Rental Period for such Portion, such
Portion is to be divided into the following Portions with the following initial
Rental Periods:
C-1
476
___Portion___ __Rental Period__
------------- ------------------
$___________ _______ month[s]
$___________ _______ month[s]
$___________ _______ month[s]
$___________ _______ month[s]]
[Pursuant to Subparagraph 2.03(a) of the Lease Agreement, Lessee
hereby irrevocably elects to combine into a single Portion certain Portions of
the Outstanding Lease Amount as follows:
(a) The Portions which are to be combined are the Portions in
the amounts of $__________, $_________ and $_______, each with a current
Rental Period which ends on __________, ____; and
(b) The initial Rental Period for such newly created Portion
shall be __________ month[s].]
3. Lessee hereby certifies to the Lessor Parties that, on the date of
this Acquisition Request and after giving effect to the use of the requested
Acquisition Advance[s] as described above:
(a) The representations and warranties of Lessee set forth in
Paragraph 4.01 of the Participation Agreement and in the other Operative
Documents are true and correct in all material respects as if made on
such date (except for representations and warranties expressly made as
of a specified date, which shall be true as of such date);
(b) No Default has occurred and is continuing; and
(c) All of the Operative Documents are in full force and effect.
IN WITNESS WHEREOF, Lessee has executed this Acquisition Request on the
date set forth above.
KLA-TENCOR CORPORATION
By: _____________________________
Name: _______________________
Title: ________________________
C-2
477
Recording requested by and EXECUTION COPY
when recorded return to:
Thomas Y. Coleman, Esq.
Orrick, Herrington & Sutcliffe
Old Federal Reserve Bank Building
400 Sansome Street
San Francisco, California 94111
================================================================================
LEASE AGREEMENT,
CONSTRUCTION DEED OF TRUST WITH ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
BETWEEN
KLA-TENCOR CORPORATION
AND
LEASE PLAN U.S.A., INC.
NOVEMBER 12, 1997
================================================================================
THIS LEASE IS NOT INTENDED TO CONSTITUTE
A TRUE LEASE FOR INCOME TAX PURPOSES
(SEE PARAGRAPH 2.06)
478
TABLE OF CONTENTS
PAGE
SECTION 1. INTERPRETATION..............................................2
1.01. Definitions......................................................2
1.02. Rules of Construction............................................2
SECTION 2. BASIC PROVISIONS............................................2
2.01. Lease of the Property............................................2
2.02. Term.............................................................2
2.03. Rent.............................................................3
2.04. Use..............................................................5
2.05. "As Is" Lease....................................................5
2.06. Nature of Transaction............................................5
2.07. Security, Etc....................................................5
SECTION 3. OTHER LESSEE AND LESSOR RIGHTS AND OBLIGATIONS..............8
3.01. Maintenance, Repair, Etc.........................................8
3.02. Risk of Loss.....................................................9
3.03. Insurance........................................................9
3.04. Casualty and Condemnation.......................................12
3.05. Taxes...........................................................15
3.06. Environmental Matters...........................................15
3.07. Liens, Easements, Etc...........................................16
3.08. Subletting......................................................17
3.09. Utility Charges.................................................18
3.10. Removal of Property.............................................18
3.11. Compliance with Governmental Rules and Insurance Requirements...18
3.12. Permitted Contests..............................................18
3.13. Lessor Obligations; Right to Perform Lessee Obligations.........19
3.14. Inspection Rights...............................................19
SECTION 4. EXPIRATION DATE............................................19
4.01. Termination by Lessee Prior to Scheduled Expiration Date........19
4.02. Surrender of Property...........................................19
4.03. Holding Over....................................................19
SECTION 5. DEFAULT....................................................20
-i-
479
5.01. Events of Default...............................................20
5.02. General Remedies................................................22
5.03. Lease Remedies..................................................23
5.04. Loan Remedies...................................................24
5.05. Remedies Cumulative.............................................27
5.06. No Cure or Waiver...............................................27
5.07. Exercise of Rights and Remedies.................................27
SECTION 6. MISCELLANEOUS..............................................27
6.01. Notices.........................................................27
6.02. Waivers; Amendments.............................................27
6.03. Successors and Assigns..........................................27
6.04. No Third Party Rights...........................................28
6.05. Partial Invalidity..............................................28
6.06. Governing Law...................................................28
6.07. Counterparts....................................................28
6.08. Nature of Lessee's Obligations..................................28
EXHIBITS
A Land (2.01(a))
B Related Goods (2.01(d))
C Notice of Rental Period Selection (2.03(a))
-ii-
480
RECORDING REQUESTED BY
AND WHEN RECORDED, RETURN TO:
Orrick, Herrington & Sutcliffe
Old Federal Reserve Bank Building
400 Sansome Street
San Francisco, CA 94111
Attn: James W. Miller, Esq.
- ------------------------------------------------------------------------------
FIRST AMENDMENT TO LEASE AGREEMENT,
CONSTRUCTION DEED OF TRUST
WITH ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS FIRST AMENDMENT TO LEASE AGREEMENT, CONSTRUCTION DEED OF
TRUST WITH ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this
"Amendment"), dated as of November 14, 1997, is entered into by and between:
(1) KLA-TENCOR CORPORATION, a Deleware corporation ("Lessee"); and
(2) LEASE PLAN U.S.A., INC., a Georgia corporation ("Lessor"). ------
RECITALS
A. Lessee, Lessor, each of the financial institutions listed in
Schedule I to the Participation Agreement (referred to below) (collectively, the
"Participants"), and ABN AMRO BANK, N.V., acting through its San Francisco
International Branch, as agent for the Participants (in such capacity, "Agent"),
are parties to a Participation Agreement dated as of November 12, 1997 (the
"Participation Agreement").
B. Lessee and Lessor are parties to that certain Lease Agreement,
Construction Deed of Trust with Assignment of Rents, Security Agreement and
Fixture Filing dated as of November 12, 1997, and recorded on November 12, 1997,
in the Official Records of Santa Clara County, California, as Document No.
13935258 (the "Lease Agreement").
C. Pursuant to the terms of the Participation Agreement, Lessee
has requested that Lessor acquire that certain real property described in
Exhibit A attached hereto (the "Tract 4 Land") and made a part hereof.
D. Lessee and Lessor now desire to amend the Lease Agreement to
add the Tract 4 Land to the property under the Lease Agreement.
481
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Lessee and Lessor hereby agree as follows:
1. DEFINITIONS, INTERPRETATION. All capitalized terms defined
above and elsewhere in this Amendment shall be used herein as so defined. Unless
otherwise defined herein, all other capitalized terms used herein shall have the
respective meanings given to those terms in Schedule 1.01 to the Participation
Agreement. The rules of construction set forth in Schedule 1.02 to the
Participation Agreement shall, to the extent not inconsistent with the terms of
this Amendment, apply to this Amendment and are hereby incorporated by
reference.
2. AMENDMENTS TO THE LEASE AGREEMENT. The Lease Agreement is
hereby amended by adding to Exhibit A thereto the property description set forth
in Exhibit A to this Amendment and by adding to Exhibit B thereto the Related
Goods set forth in Exhibit B to this Amendment. Without limiting the effect of
such addition, Lessee and Lessor specifically acknowledge and agree that, on and
after the date hereof, (i) the lien of the Lease Agreement includes all of
Lessee's right, title and interest in and to the Tract 4 Land and (ii) the terms
"Land" and "Property" as defined in the Lease Agreement include the Tract 4
Land.
3. EFFECT OF THIS AMENDMENT. On and after the date of this
Amendment, each reference in the Lease Agreement and the other Operative
Documents to the Lease Agreement shall mean the Lease Agreement as amended
hereby. Except as specifically amended above, (a) the Lease Agreement and the
other Operative Documents shall remain in full force and effect and are hereby
ratified and affirmed and (b) the execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power, or remedy of Lessor, the Participants or Agent, nor constitute
a waiver of any provision of the Lease Agreement or any other Operative
Document.
4. MISCELLANEOUS.
(a) Counterparts. This Amendment may be executed in any
number of counterparts, each of which shall be deemed an original,
but all of which taken together shall constitute one and the same
instrument. The signature page and acknowledgment of any
counterpart may be removed therefrom and attached to any other
counterpart to evidence execution thereof by all of the parties
hereto without affecting the validity thereof.
(b) Headings. Headings in this Amendment are for
convenience of reference only and are not part of the substance
hereof.
(c) Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of California
without reference to conflicts of law rules.
2
482
IN WITNESS WHEREOF, Lessee and Lessor have caused this Amendment
to be executed as of the day and year first above written.
LESSEE: KLA-TENCOR CORPORATION
By:
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
LESSOR: LEASE PLAN U.S.A., INC.
By:
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
3
483
STATE OF )
-----------------------)
)
COUNTY OF )
----------------------
On _____________, 1997 before me, _______________________, a Notary
Public in and for the State of California, personally appeared
_______________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL]
---------------------------------------
484
STATE OF )
-----------------------)
)
COUNTY OF )
----------------------
On _____________, 1997 before me, _______________________, a Notary
Public in and for the State of California, personally appeared
_______________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL]
-------------------------------------------------
485
EXHIBIT A
TRACT 4 LAND
THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY
OF SANTA CLARA, STATE OF CALIFORNIA, AND DESCRIBED AS FOLLOWS:
A-1
486
EXHIBIT B
RELATED GOODS
The personal property, among other goods, conveyed
by Amdahl Corporation to Lease Plan U.S.A., Inc. by Assignment of Rights dated
as of November 14, 1997 with respect to Tract 4.
B-1
487
RECORDING REQUESTED BY
WHEN RECORDED RETURN TO
AND MAIL TAX STATEMENTS TO:
Orrick, Herrington & Sutcliffe LLP
400 Sansome Street
San Francisco, California 94111
Attn.: James W. Miller, Jr.
- ------------------------------------------------------------------------------
FIRST AMENDMENT TO
MEMORANDUM OF PURCHASE AGREEMENT
The First Amendment to Memorandum of Purchase Agreement (this
"Amendment") is made November 14, 1997 by and between KLA-TENCOR CORPORATION, a
Delaware corporation ("Lessee") and LEASE PLAN U.S.A., INC., a Georgia
corporation ("Lessor").
RECITALS
A. Lessee, Lessor, each of the financial institutions listed in
Schedule I to the Participation Agreement (referred to below) (collectively, the
"Participants"), and ABN AMRO BANK, N.V., acting through its San Francisco
International Branch, as agent for the Participants (in such capacity, "Agent"),
are parties to a Participation Agreement dated as of November 12, 1997 (the
"Participation Agreement").
B. Lessor and Lessee are also parties to that certain Purchase
Agreement dated as of November 12, 1997 (the "Purchase Agreement") covering
certain real property referred to in the Purchase Agreement as the "Property"
and evidenced by that certain Memorandum of Purchase Agreement dated as of
November 12, 1997 (the "Memorandum") which Memorandum was recorded on November
12, 1997, in the Official Records of Santa Clara County, California, as Document
No. 13935260.
C. Pursuant to the terms of the Participation Agreement, Lessor has
acquired that certain real property described in Exhibit A attached hereto (the
"Tract 4 Land") and made a part hereof, and such Tract 4 Land has been added to
the Property under the Purchase Agreement.
D. The purpose of this Amendment is to give record notice of the fact
that the Tract 4 Land has been added to the Property under the Purchase
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for other good valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereby agree as follows:
The Memorandum is hereby amended by adding to Exhibit A thereto the
property description set forth in Exhibit A to this Amendment. Lessor and Lessee
specifically
488
acknowledge and agree that, on and after the date hereof, the term
"Property" as defined in the Purchase Agreement shall include the Tract 4 Land.
This Amendment may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument. The signature page and acknowledgment of
any counterpart may be removed therefrom and attached to any other counterpart
to evidence execution thereof by all of the parties hereto without affecting the
validity thereof.
This instrument is an amendment to the Memorandum and is subject to
all of the terms, covenants and conditions provided in the unrecorded Purchase
Agreement. If the terms of this instrument are inconsistent with the terms of
the Purchase Agreement, the terms of the Purchase Agreement shall prevail.
LESSEE: KLA-TENCOR CORPORATION
By:_________________________________
Name: ___________________________
Title: ____________________________
LESSOR: LEASE PLAN U.S.A., INC.
By:_________________________________
Name: ___________________________
Title: ____________________________
2
489
EXHIBIT A
TRACT 4 LAND
THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF SANTA
CLARA, STATE OF CALIFORNIA, AND DESCRIBED AS FOLLOWS:
490
STATE OF ____________________________________________________)
)
COUNTY OF ___________________________________________________)
On _____________, 1997 before me, _______________________, a Notary
Public in and for the State of California, personally appeared
_______________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL]
----------------------------------------
491
STATE OF ____________________________________________________)
)
COUNTY OF ___________________________________________________)
On _____________, 1997 before me, _______________________, a Notary
Public in and for the State of California, personally appeared
_______________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL]
-------------------------------------------