ASSIGNMENT OF LEASEHOLD AND SUBLEASEHOLD INTERESTS;
AMENDMENT OF LEASE SUPPLEMENT NO. 1, EQUIPMENT SCHEDULE AND
WAIVER AND MODIFICATION AGREEMENT; AND
RELEASE OF SECURITY INTEREST
This Assignment of Leasehold and Subleasehold Interests; Amendment of Lease
Supplement No. 1, Equipment Schedule and Waiver and Modification Agreement; and
Release of Security Interest (this "Assignment"), dated as of October 31, 1994,
is entered into by and between Rohr, Inc., a Delaware corporation ("Rohr"),
State Street Bank and Trust Company of California, National Association, a
national banking association, and Lynda Vogel, successor trustee to W. Jeffrey
Kramer, not in an individual capacity but solely as owner trustees under a trust
agreement for the benefit of General Electric Capital Corporation (State Street
Trust and Bank Company of California, National Association, and Lynda Vogel are
referred to collectively as the "Trustees"), and General Electric Capital
Corporation ("Beneficiary").
RECITALS
A. Rohr and the Trustees, as owner trustees under that certain Trust
Agreement, dated as of September 14, 1992 for the benefit of Beneficiary, are
parties to the following agreements:
(1) Lease Agreement, dated as of September 14, 1992, including Lease
Supplement No. 1 thereto (such supplement is referred to herein as the
"Supplement"; collectively, such Lease Agreement and the Supplement are
referred to herein as the "Lease");
(2) Sublease Agreement, dated as of September 14, 1992, as amended to
date, including the Equipment Schedule thereto (such equipment schedule is
referred to herein as the "Schedule"; collectively, such Sublease Agreement
and the Schedule are referred to herein as the "Sublease");
(3) Waiver and Modification Agreement, dated as of July 9, 1993, pursuant
to which Rohr agreed to pay certain amounts to Beneficiary in connection
with certain assignments of its beneficial interest in a trust (the "Waiver
Agreement"); and
(4) Security Agreement, dated as of July 9, 1993, pursuant to which Rohr
granted a security interest in certain collateral to the Trustees (the
"Security Agreement").
B. Rohr and Beneficiary desire that the Trustees:
1
(1) assign their rights and obligations under the Lease and the Sublease
solely with respect to certain equipment to Rohr;
(2) agree to amend the Waiver Agreement by deleting Section 5 thereof; and
(3) release the security interest granted to them pursuant to the Security
Agreement.
AGREEMENT
NOW, THEREFORE, Rohr, the Trustees and Beneficiary agree as follows:
1. Assignment of Rights under the Lease. The Trustees and Beneficiary
------------------------------------
assign to Rohr all of the rights and obligations granted to them in, to and
under the Lease solely with respect to the items of equipment identified on
Exhibit A hereto (the "Assigned Equipment"), provided, however, such assignment
-------- -------
shall not affect the rights and obligations of the Trustees, Beneficiary and
Rohr with respect to the equipment that will remain leased to the Trustees under
the Lease and, with respect to the Assigned Equipment, such assignment shall not
affect the rights and obligations of such parties (a) for periods up to the
Effective Date (as defined in Section 10 below) and (b) for periods on and after
such date to the extent the Lease provides that such rights and obligations
shall survive termination of the Lease.
2. Assignment of Rights under the Sublease. The Trustees and Beneficiary
---------------------------------------
assign to Rohr all of the rights and obligations granted to them in, to and
under the Sublease solely with respect to the Assigned Equipment, provided,
--------
however, such assignment shall not affect the rights and obligations of the
- -------
Trustees, Beneficiary and Rohr with respect to the equipment that will remain
subleased to Rohr under the Sublease and, with respect to the Assigned
Equipment, such assignment shall not affect the rights and obligations of such
parties (a) for periods up to the Effective Date and (b) for periods on and
after such date to the extent the Sublease provides that such rights and
obligations shall survive termination of the Sublease.
3. AS-IS, WHERE-IS Basis. The assignments set forth in Sections 1 and 2
---------------------
hereof are made on an AS-IS, WHERE-IS basis with no recourse to or warranty by
the Trustees or Beneficiary except that each of Beneficiary and the Trustees
warrants that it has not sold, assigned or transferred to any party any portion
of the rights granted to it in, to or under the Lease or the Sublease and has
not granted any party any lien or other encumbrance in any such right.
2
4. Payment to Beneficiary. Rohr agrees to pay to Beneficiary, by wire
----------------------
transfer of immediately available funds, Fifteen Million Six Hundred Fifteen
Thousand One Hundred Ninety Six Dollars ($15,615,196.00) (representing the
Capitalized Sublessor's Cost of the Assigned Equipment multiplied by a
Termination Value of 98.500%), plus applicable sales tax, if any.
5. Amendment of Supplement. On and after the Effective Date, the Supplement
-----------------------
is amended as follows:
(a) Annex A to the Supplement is amended in its entirety to read as set
forth in the form of Annex A attached to this Assignment as Exhibit B.
6. Amendment of Schedule. On and after the Effective Date, the Schedule is
---------------------
amended as follows:
(a) the Capitalized Sublessor's Cost identified in Section B.2 of the
Schedule is amended from $28,169,157.00 to $12,316,166.00; such lesser
amount (i) represents the Capitalized Sublessor's Cost of the equipment
which will remain subleased to Rohr under the Sublease immediately after
the Effective Date and (ii) shall be used for calculating Basic Term Rent
under the Sublease for rentals due on and after the Effective Date;
(b) Section C.1 of the Schedule is amended by deleting therefrom the words
"having a Capitalized Sublessor's Cost of $28,110,457.00";
(c) Section C.2 of the Schedule is amended by deleting therefrom the words
", having a Capitalized Sublessor's Cost of $58,700.00"; and
(d) Annex A to the Schedule is amended in its entirety to read as set
forth in the form of Annex A attached to this Assignment as Exhibit B.
7. Amendment of Waiver Agreement. On and after the Effective Date, the
-----------------------------
Waiver Agreement is amended by deleting Section 5 thereof in its entirety.
8. Termination of Security Agreement and Release of Security Interest. The
------------------------------------------------------------------
Security Agreement, and all of the rights and obligations of the parties under
such agreement, are hereby terminated. The Trustees release the security
interest granted to them by the Security Agreement.
9. Limited Waiver. With respect to this Assignment only, the parties hereto
--------------
waive the provisions of Section 5.3 of the Lease and Section XIII(a) of the
Sublease to the extent they are inconsistent with the terms hereof. Such waiver
is limited to the
3
matters expressly provided in this paragraph and, except as expressly provided
in this paragraph, shall not be deemed to waive any other provision of the Lease
or the Sublease or to serve as a waiver of any other matter. The assignments
agreed to herein are limited to the matters provided for in this Assignment and
shall not extend to the equipment remaining leased to the Trustees under the
Lease and subleased to Rohr under the Sublease. Except as otherwise provided for
herein, the Lease and the Sublease, as in effect immediately prior to the
Effective Date, remain unmodified and in full force and effect.
10. Conditions to Effectiveness. This Assignment shall become effective on
---------------------------
the date (the "Effective Date") on which all of the following shall have
occurred:
(a) this Assignment shall have been executed and delivered by Rohr, each
of the Trustees and Beneficiary;
(b) Rohr, the Trustees, as trustees under another trust agreement, and
ELLCO Leasing Corporation shall have executed and delivered an assignment
substantially identical to this Assignment;
(c) Rohr, the Trustees, as trustees under another trust agreement, and JCB
Credit Corporation shall have executed and delivered an assignment
substantially identical to this Assignment;
(d) Rohr, the Trustees, as trustees under another trust agreement, and
Sanwa General Equipment Leasing, a division of Sanwa Business Credit
Corporation shall have executed and delivered an assignment substantially
identical to this Assignment;
(e) Rohr shall have paid Beneficiary the amount required by Section 4
hereof; and
(f) the Trustees shall have executed and delivered to Rohr a letter to
Wells Fargo Bank, N.A. substantially in the form attached to this
Assignment as Exhibit C.
Within fourteen days after the Effective Date, the Trustees:
(i) shall execute and deliver to Rohr UCC-2 financing statements, in form
and substance satisfactory to Rohr, terminating the security interest
granted to the Trustees under the Security Agreement; and
(ii) shall execute and deliver to Rohr UCC-2 financing statements, in form
and substance satisfactory to Rohr, releasing any security interests of the
Trustees in the Assigned Equipment.
4
11. Jury Trial Waiver. EACH OF THE PARTIES HERETO HEREBY UNCONDITIONALLY
-----------------
WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS ASSIGNMENT, ANY DEALINGS AMONG ANY
OF THEM RELATING TO THE SUBJECT MATTER HEREOF, AND/OR THE RELATIONSHIP AMONG
THEM. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL
DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND
STATUTORY CLAIMS). 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
ASSIGNMENT. IN THE EVENT OF LITIGATION, THIS ASSIGNMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
12. Direction to Trustees. Beneficiary hereby joins in this Assignment to
---------------------
acknowledge its consent to the terms and provisions hereof and to direct the
Trustees to enter into this Assignment and all other agreements, instruments and
documents to be executed in connection herewith in their capacity as owner
trustees.
13. Expenses. Rohr agrees to pay all reasonable costs and expenses of the
--------
Trustees and Beneficiary in connection with the preparation, execution, delivery
and enforcement of this Assignment and all other agreements, instruments and
documents executed in connection herewith.
14. Further Assurances. Each of the parties hereto agrees that at any time
------------------
it shall execute and deliver all further instruments and documents, and take all
further action, in order to effectuate or otherwise document the transactions
contemplated hereby or otherwise implement the intention of the parties under
this Assignment, as any of the parties hereto and their successors and assigns
reasonably may request.
15. Modifications. NO VARIATION OR MODIFICATION OF THIS ASSIGNMENT OR ANY
-------------
WAIVER OF ANY OF ITS PROVISIONS OR CONDITIONS, SHALL BE VALID UNLESS IN WRITING
AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF EACH OF THE PARTIES HERETO.
16. Multiple Counterparts. This Assignment may be executed in two or more
---------------------
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall constitute one and
the same instrument.
5
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be
executed by their duly authorized representatives as of the date first above
written.
Rohr, Inc. State Street Bank and Trust
Company of California, National
Association, not in its
By: /s/ L. A. Chapman individual capacity but solely
---------------------- as Corporate Trustee
Name: Laurence A. Chapman
Title: Senior Vice President
and Chief Financial
Officer By: /s/ Lynda A. Vogel
----------------------
Name: Lynda A. Vogel
Title: Senior Vice President
General Electric Capital
Corporation
/s/Lynda A. Vogel
----------------------------
Lynda A. Vogel,
By: /s/ Ronald F. Carapezzi not in her individual capacity,
---------------------- but solely in her capacity as
Name: Ronald F. Carapezzi Individual Trustee
Title: Region Manager
6
ASSIGNMENT OF LEASEHOLD AND SUBLEASEHOLD INTERESTS;
AMENDMENT OF LEASE SUPPLEMENT NO. 1, EQUIPMENT SCHEDULE AND
WAIVER AND MODIFICATION AGREEMENT; AND
RELEASE OF SECURITY INTEREST
This Assignment of Leasehold and Subleasehold Interests; Amendment of Lease
Supplement No. 1, Equipment Schedule and Waiver and Modification Agreement; and
Release of Security Interest (this "Assignment"), dated as of October 31, 1994,
is entered into by and between Rohr, Inc., a Delaware corporation ("Rohr"),
State Street Bank and Trust Company of California, National Association, a
national banking association, and Lynda Vogel, successor trustee to W. Jeffrey
Kramer, not in an individual capacity but solely as owner trustees under a trust
agreement for the benefit of Sanwa General Equipment Leasing, a division of
Sanwa Business Credit Corporation (State Street Trust and Bank Company of
California, National Association, and Lynda Vogel are referred to collectively
as the "Trustees"), and Sanwa General Equipment Leasing, a division of Sanwa
Business Credit Corporation ("Beneficiary").
RECITALS
A. Rohr and the Trustees, as owner trustees under that certain Trust
Agreement, dated as of September 14, 1992 for the benefit of Beneficiary, are
parties to the following agreements:
(1) Lease Agreement, dated as of September 14, 1992, including Lease
Supplement No. 1 thereto (such supplement is referred to herein as the
"Supplement"; collectively, such Lease Agreement and the Supplement are
referred to herein as the "Lease");
(2) Sublease Agreement, dated as of September 14, 1992, as amended to
date, including the Equipment Schedule thereto (such equipment schedule is
referred to herein as the "Schedule"; collectively, such Sublease Agreement
and the Schedule are referred to herein as the "Sublease");
(3) Waiver and Modification Agreement, dated as of July 9, 1993, pursuant
to which Rohr agreed to pay certain amounts to Beneficiary in connection
with certain assignments of its beneficial interest in a trust (the "Waiver
Agreement"); and
(4) Security Agreement, dated as of July 9, 1993, pursuant to which Rohr
granted a security interest in certain collateral to the Trustees (the
"Security Agreement").
B. Rohr and Beneficiary desire that the Trustees:
7
(1) assign their rights and obligations under the Lease and the Sublease
solely with respect to certain equipment to Rohr;
(2) agree to amend the Waiver Agreement by deleting Section 5 thereof; and
(3) release the security interest granted to them pursuant to the Security
Agreement.
AGREEMENT
NOW, THEREFORE, Rohr, the Trustees and Beneficiary agree as follows:
1. Assignment of Rights under the Lease. The Trustees and Beneficiary
------------------------------------
assign to Rohr all of the rights and obligations granted to them in, to and
under the Lease solely with respect to the items of equipment identified on
Exhibit A hereto (the "Assigned Equipment"), provided, however, such assignment
-------- -------
shall not affect the rights and obligations of the Trustees, Beneficiary and
Rohr with respect to the equipment that will remain leased to the Trustees under
the Lease and, with respect to the Assigned Equipment, such assignment shall not
affect the rights and obligations of such parties (a) for periods up to the
Effective Date (as defined in Section 10 below) and (b) for periods on and after
such date to the extent the Lease provides that such rights and obligations
shall survive termination of the Lease.
2. Assignment of Rights under the Sublease. The Trustees and Beneficiary
---------------------------------------
assign to Rohr all of the rights and obligations granted to them in, to and
under the Sublease solely with respect to the Assigned Equipment, provided,
--------
however, such assignment shall not affect the rights and obligations of the
- -------
Trustees, Beneficiary and Rohr with respect to the equipment that will remain
subleased to Rohr under the Sublease and, with respect to the Assigned
Equipment, such assignment shall not affect the rights and obligations of such
parties (a) for periods up to the Effective Date and (b) for periods on and
after such date to the extent the Sublease provides that such rights and
obligations shall survive termination of the Sublease.
3. AS-IS, WHERE-IS Basis. The assignments set forth in Sections 1 and 2
---------------------
hereof are made on an AS-IS, WHERE-IS basis with no recourse to or warranty by
the Trustees or Beneficiary except that each of Beneficiary and the Trustees
warrants that it has not sold, assigned or transferred to any party any portion
of the rights granted to it in, to or under the Lease or the Sublease and has
not granted any party any lien or other encumbrance in any such right except as
provided in that certain Sublease Intercreditor Agreement, dated as of December
31, 1993, between Beneficiary and General Equipment Capital Corporation ("GE
8
Capital"). GE Capital joins in this Assignment to consent to the terms hereof.
Beneficiary and GE Capital agree that the Sublease Intercreditor Agreement will
continue in effect with respect to the Sublease, as the Sublease is modified
pursuant to this Assignment.
4. Payment to Beneficiary. Rohr agrees to pay to Beneficiary, by wire
----------------------
transfer of immediately available funds, Two Million Six Hundred Fifty Four
Thousand One Hundred Sixty Seven Dollars ($2,654,167.00) (representing the
Capitalized Sublessor's Cost of the Assigned Equipment multiplied by a
Termination Value of 98.500%), plus applicable sales tax, if any.
5. Amendment of Supplement. On and after the Effective Date, the Supplement
-----------------------
is amended as follows:
(a) Annex A to the Supplement is amended in its entirety to read as set
forth in the form of Annex A attached to this Assignment as Exhibit B.
6. Amendment of Schedule. On and after the Effective Date, the Schedule is
---------------------
amended as follows:
(a) the Capitalized Sublessor's Cost identified in Section B.2 of the
Schedule is amended from $9,784,294.00 to $7,089,708.00; such lesser amount
(i) represents the Capitalized Sublessor's Cost of the equipment which will
remain subleased to Rohr under the Sublease immediately after the Effective
Date and (ii) shall be used for calculating Basic Term Rent under the
Sublease for rentals due on and after the Effective Date;
(b) Section C.1 of the Schedule is amended by deleting therefrom the
words "having a Capitalized Sublessor's Cost of $9,458,994.00";
(c) Section C.2 of the Schedule is amended by deleting therefrom the words
", having a Capitalized Sublessor's Cost of $325,300.00"; and
(d) Annex A to the Schedule is amended in its entirety to read as set
forth in the form of Annex A attached to this Assignment as Exhibit B.
7. Amendment of Waiver Agreement. On and after the Effective Date, the
-----------------------------
Waiver Agreement is amended by deleting Section 5 thereof in its entirety.
8. Termination of Security Agreement and Release of Security Interest. The
------------------------------------------------------------------
Security Agreement, and all of the rights and obligations of the parties under
such agreement, are hereby
9
terminated. The Trustees release the security interest granted to them by the
Security Agreement.
9. Limited Waiver. With respect to this Assignment only, the parties hereto
--------------
waive the provisions of Section 5.3 of the Lease and Section XIII(a) of the
Sublease to the extent they are inconsistent with the terms hereof. Such waiver
is limited to the matters expressly provided in this paragraph and, except as
expressly provided in this paragraph, shall not be deemed to waive any other
provision of the Lease or the Sublease or to serve as a waiver of any other
matter. The assignments agreed to herein are limited to the matters provided
for in this Assignment and shall not extend to the equipment remaining leased to
the Trustees under the Lease and subleased to Rohr under the Sublease. Except
as otherwise provided for herein, the Lease and the Sublease, as in effect
immediately prior to the Effective Date, remain unmodified and in full force and
effect.
10. Conditions to Effectiveness. This Assignment shall become effective on
---------------------------
the date (the "Effective Date") on which all of the following shall have
occurred:
(a) this Assignment shall have been executed and delivered by Rohr, each
of the Trustees and Beneficiary;
(b) Rohr, the Trustees, as trustees under another trust agreement, and
ELLCO Leasing Corporation shall have executed and delivered an assignment
substantially identical to this Assignment;
(c) Rohr, the Trustees, as trustees under another trust agreement, and JCB
Credit Corporation shall have executed and delivered an assignment
substantially identical to this Assignment;
(d) Rohr, the Trustees, as trustees under another trust agreement, and
General Electric Credit Corporation shall have executed and delivered an
assignment substantially identical to this Assignment;
(e) Rohr shall have paid Beneficiary the amount required by Section 4
hereof; and
(f) the Trustees shall have executed and delivered to Rohr a letter to
Wells Fargo Bank, N.A. substantially in the form attached to this
Assignment as Exhibit C.
Within fourteen days after the Effective Date, the Trustees:
(i) shall execute and deliver to Rohr UCC-2 financing statements, in form
and substance satisfactory to Rohr,
10
terminating the security interest granted to the Trustees under the
Security Agreement; and
(ii) shall execute and deliver to Rohr UCC-2 financing statements, in form
and substance satisfactory to Rohr, releasing any security interests of the
Trustees in the Assigned Equipment.
11. Jury Trial Waiver. EACH OF THE PARTIES HERETO HEREBY UNCONDITIONALLY
-----------------
WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS ASSIGNMENT, ANY DEALINGS AMONG ANY
OF THEM RELATING TO THE SUBJECT MATTER HEREOF, AND/OR THE RELATIONSHIP AMONG
THEM. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND
ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION,
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
AND STATUTORY CLAIMS). 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
ASSIGNMENT. IN THE EVENT OF LITIGATION, THIS ASSIGNMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
12. Direction to Trustees. Beneficiary hereby joins in this Assignment to
---------------------
acknowledge its consent to the terms and provisions hereof and to direct the
Trustees to enter into this Assignment and all other agreements, instruments and
documents to be executed in connection herewith in their capacity as owner
trustees.
13. Expenses. Rohr agrees to pay all reasonable costs and expenses of the
--------
Trustees and Beneficiary in connection with the preparation, execution, delivery
and enforcement of this Assignment and all other agreements, instruments and
documents executed in connection herewith.
14. Further Assurances. Each of the parties hereto agrees that at any time
------------------
it shall execute and deliver all further instruments and documents, and take all
further action, in order to effectuate or otherwise document the transactions
contemplated hereby or otherwise implement the intention of the parties under
this Assignment, as any of the parties hereto and their successors and assigns
reasonably may request.
15. Modifications. NO VARIATION OR MODIFICATION OF THIS ASSIGNMENT OR ANY
-------------
WAIVER OF ANY OF ITS PROVISIONS OR CONDITIONS, SHALL BE VALID UNLESS IN WRITING
AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF EACH OF THE PARTIES HERETO.
16. Multiple Counterparts. This Assignment may be executed in two or more
---------------------
counterparts, each of which shall be deemed to be an
11
original as against any party whose signature appears thereon, and all of which
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be
executed by their duly authorized representatives as of the date first above
written.
Rohr, Inc. State Street Bank and Trust
Company of California, National
By: /s/ L. A. Chapman Association, not in its
----------------------- individual capacity but solely
Name: Laurence A. Chapman as Corporate Trustee
Title: Senior Vice President
and Chief Financial
Officer By: /s/ Lynda A. Vogel
-----------------------
Name: Lynda A. Vogel
Title: Senior Vice President
Sanwa General Equipment
Leasing, a division of Sanwa
Business Credit Corporation /s/ Lynda A. Vogel
---------------------------
Lynda A. Vogel,
not in her individual capacity,
By: /s/ Constance W. Lancaster but solely in her capacity as
-------------------------- Individual Trustee
Name: Constance W. Lancaster
Title: Vice President/Operations
General Electric Capital
Corporation
By: /s/ Ronald F. Carapezzi
-----------------------
Name: Ronald F. Carapezzi
Title: Region Manager
12
ASSIGNMENT OF LEASEHOLD AND SUBLEASEHOLD INTERESTS;
AMENDMENT OF LEASE SUPPLEMENT NO. 1, EQUIPMENT SCHEDULE AND
WAIVER AND MODIFICATION AGREEMENT; AND
RELEASE OF SECURITY INTEREST
This Assignment of Leasehold and Subleasehold Interests; Amendment of Lease
Supplement No. 1, Equipment Schedule and Waiver and Modification Agreement; and
Release of Security Interest (this "Assignment"), dated as of October 31, 1994,
is entered into by and between Rohr, Inc., a Delaware corporation ("Rohr"),
State Street Bank and Trust Company of California, National Association, a
national banking association, and Lynda Vogel, successor trustee to W. Jeffrey
Kramer, not in an individual capacity but solely as owner trustees under a trust
agreement for the benefit of ELLCO Leasing Corporation (State Street Trust and
Bank Company of California, National Association, and Lynda Vogel are referred
to collectively as the "Trustees"), and ELLCO Leasing Corporation
("Beneficiary").
RECITALS
A. Rohr and the Trustees, as owner trustees under that certain Trust
Agreement, dated as of September 14, 1992 for the benefit of Beneficiary, are
parties to the following agreements:
(1) Lease Agreement, dated as of September 14, 1992, including Lease
Supplement No. 1 thereto (such supplement is referred to herein as the
"Supplement"; collectively, such Lease Agreement and the Supplement are
referred to herein as the "Lease");
(2) Sublease Agreement, dated as of September 14, 1992, as amended to
date, including the Equipment Schedule thereto (such equipment schedule
is referred to herein as the "Schedule"; collectively, such Sublease
Agreement and the Schedule are referred to herein as the "Sublease");
(3) Waiver and Modification Agreement, dated as of July 9, 1993,
pursuant to which Rohr agreed to pay certain amounts to Beneficiary in
connection with certain assignments of its beneficial interest in a trust
(the "Waiver Agreement"); and
(4) Security Agreement, dated as of July 9, 1993, pursuant to which
Rohr granted a security interest in certain collateral to the Trustees
(the "Security Agreement").
B. Rohr and Beneficiary desire that the Trustees:
13
(1) assign their rights and obligations under the Lease and the
Sublease solely with respect to certain equipment to Rohr;
(2) agree to amend the Waiver Agreement by deleting Section 5 thereof;
and
(3) release the security interest granted to them pursuant to the
Security Agreement.
AGREEMENT
NOW, THEREFORE, Rohr, the Trustees and Beneficiary agree as follows:
1. Assignment of Rights under the Lease. The Trustees and Beneficiary
------------------------------------
assign to Rohr all of the rights and obligations granted to them in, to and
under the Lease solely with respect to the items of equipment identified on
Exhibit A hereto (the "Assigned Equipment"), provided, however, such assignment
-------- -------
shall not affect the rights and obligations of the Trustees, Beneficiary and
Rohr with respect to the equipment that will remain leased to the Trustees under
the Lease and, with respect to the Assigned Equipment, such assignment shall not
affect the rights and obligations of such parties (a) for periods up to the
Effective Date (as defined in Section 10 below) and (b) for periods on and after
such date to the extent the Lease provides that such rights and obligations
shall survive termination of the Lease.
2. Assignment of Rights under the Sublease. The Trustees and Beneficiary
---------------------------------------
assign to Rohr all of the rights and obligations granted to them in, to and
under the Sublease solely with respect to the Assigned Equipment, provided,
--------
however, such assignment shall not affect the rights and obligations of the
- -------
Trustees, Beneficiary and Rohr with respect to the equipment that will remain
subleased to Rohr under the Sublease and, with respect to the Assigned
Equipment, such assignment shall not affect the rights and obligations of such
parties (a) for periods up to the Effective Date and (b) for periods on and
after such date to the extent the Sublease provides that such rights and
obligations shall survive termination of the Sublease.
3. AS-IS, WHERE-IS Basis. The assignments set forth in Sections 1 and 2
---------------------
hereof are made on an AS-IS, WHERE-IS basis with no recourse to or warranty by
the Trustees or Beneficiary except that each of Beneficiary and the Trustees
warrants that it has not sold, assigned or transferred to any party any portion
of the rights granted to it in, to or under the Lease or the Sublease and has
not granted any party any lien or other encumbrance in any such right.
14
4. Payment to Beneficiary. Rohr agrees to pay to Beneficiary, by wire
----------------------
transfer of immediately available funds, One Million Three Hundred Thirty One
Thousand Two Hundred Thirty Four Dollars ($1,331,234.00) (representing the
Capitalized Sublessor's Cost of the Assigned Equipment multiplied by a
Termination Value of 98.500%), plus applicable sales tax, if any.
5. Amendment of Supplement. On and after the Effective Date, the Supplement
-----------------------
is amended as follows:
(a) Annex A to the Supplement is amended in its entirety to read as set
forth in the form of Annex A attached to this Assignment as Exhibit B.
6. Amendment of Schedule. On and after the Effective Date, the Schedule is
---------------------
amended as follows:
(a) the Capitalized Sublessor's Cost identified in Section B.2 of the
Schedule is amended from $4,725,997.00 to $3,374,490.00; such lesser
amount (i) represents the Capitalized Sublessor's Cost of the equipment
which will remain subleased to Rohr under the Sublease immediately after
the Effective Date and (ii) shall be used for calculating Basic Term Rent
under the Sublease for rentals due on and after the Effective Date;
(b) Section C.1 of the Schedule is amended by deleting therefrom the
words "having a Capitalized Sublessor's Cost of $4,417,197.00";
(c) Section C.2 of the Schedule is amended by deleting therefrom the
words ", having a Capitalized Sublessor's Cost of $308,800.00"; and
(d) Annex A to the Schedule is amended in its entirety to read as set
forth in the form of Annex A attached to this Assignment as Exhibit B.
7. Amendment of Waiver Agreement. On and after the Effective Date, the
-----------------------------
Waiver Agreement is amended by deleting Section 5 thereof in its entirety.
8. Termination of Security Agreement and Release of Security Interest. The
------------------------------------------------------------------
Security Agreement, and all of the rights and obligations of the parties under
such agreement, are hereby terminated. The Trustees release the security
interest granted to them by the Security Agreement.
9. Limited Waiver. With respect to this Assignment only, the parties hereto
--------------
waive the provisions of Section 5.3 of the Lease and Section XIII(a) of the
Sublease to the extent they are inconsistent with the terms hereof. Such waiver
is limited to the
15
matters expressly provided in this paragraph and, except as expressly provided
in this paragraph, shall not be deemed to waive any other provision of the Lease
or the Sublease or to serve as a waiver of any other matter. The assignments
agreed to herein are limited to the matters provided for in this Assignment and
shall not extend to the equipment remaining leased to the Trustees under the
Lease and subleased to Rohr under the Sublease. Except as otherwise provided for
herein, the Lease and the Sublease, as in effect immediately prior to the
Effective Date, remain unmodified and in full force and effect.
10. Conditions to Effectiveness. This Assignment shall become effective on
---------------------------
the date (the "Effective Date") on which all of the following shall have
occurred:
(a) this Assignment shall have been executed and delivered by Rohr,
each of the Trustees and Beneficiary;
(b) Rohr, the Trustees, as trustees under another trust agreement, and
General Electric Credit Corporation shall have executed and delivered an
assignment substantially identical to this Assignment;
(c) Rohr, the Trustees, as trustees under another trust agreement, and
JCB Credit Corporation shall have executed and delivered an assignment
substantially identical to this Assignment;
(d) Rohr, the Trustees, as trustees under another trust agreement, and
Sanwa General Equipment Leasing, a division of Sanwa Business Credit
Corporation shall have executed and delivered an assignment substantially
identical to this Assignment;
(e) Rohr shall have paid Beneficiary the amount required by Section 4
hereof; and
(f) the Trustees shall have executed and delivered to Rohr a letter to
Wells Fargo Bank, N.A. substantially in the form attached to this
Assignment as Exhibit C.
Within fourteen days after the Effective Date, the Trustees:
(i) shall execute and deliver to Rohr UCC-2 financing statements, in
form and substance satisfactory to Rohr, terminating the security
interest granted to the Trustees under the Security Agreement; and
(ii) shall execute and deliver to Rohr UCC-2 financing statements, in
form and substance satisfactory to Rohr, releasing any security interests
of the Trustees in the Assigned Equipment.
16
11. Jury Trial Waiver. EACH OF THE PARTIES HERETO HEREBY UNCONDITIONALLY
-----------------
WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS ASSIGNMENT, ANY DEALINGS AMONG ANY
OF THEM RELATING TO THE SUBJECT MATTER HEREOF, AND/OR THE RELATIONSHIP AMONG
THEM. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND
ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION,
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
AND STATUTORY CLAIMS). 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
ASSIGNMENT. IN THE EVENT OF LITIGATION, THIS ASSIGNMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
12. Direction to Trustees. Beneficiary hereby joins in this Assignment to
---------------------
acknowledge its consent to the terms and provisions hereof and to direct the
Trustees to enter into this Assignment and all other agreements, instruments and
documents to be executed in connection herewith in their capacity as owner
trustees.
13. Expenses. Rohr agrees to pay all reasonable costs and expenses of the
--------
Trustees and Beneficiary in connection with the preparation, execution, delivery
and enforcement of this Assignment and all other agreements, instruments and
documents executed in connection herewith.
14. Further Assurances. Each of the parties hereto agrees that at any time
-----------------
it shall execute and deliver all further instruments and documents, and take all
further action, in order to effectuate or otherwise document the transactions
contemplated hereby or otherwise implement the intention of the parties under
this Assignment, as any of the parties hereto and their successors and assigns
reasonably may request.
15. Modifications. NO VARIATION OR MODIFICATION OF THIS ASSIGNMENT OR ANY
-------------
WAIVER OF ANY OF ITS PROVISIONS OR CONDITIONS, SHALL BE VALID UNLESS IN WRITING
AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF EACH OF THE PARTIES HERETO.
16. Multiple Counterparts. This Assignment may be executed in two or more
---------------------
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall constitute one and
the same instrument.
17
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be
executed by their duly authorized representatives as of the date first above
written.
Rohr, Inc. State Street Bank and Trust
Company of California,
National Association, not in its
By:/s/ L.A. Chapman individual capacity but solely
------------------------ as Corporate Trustee
Name: Laurence A. Chapman
Title: Senior Vice President
and Chief Financial
Officer By:/s/ Lynda A. Vogel
----------------------
Name: Lynda A. Vogel
Title: Senior Vice President
ELLCO Leasing Corporation
/s/ Lynda A. Vogel
------------------
By:/s/ Ronald F. Carapezzi Lynda A. Vogel,
----------------------- not in her individual capacity,
Name: Ronald F. Carapezzi but solely in her capacity as
Title: Region Manager Individual Trustee
18
ASSIGNMENT OF LEASEHOLD AND SUBLEASEHOLD INTERESTS;
AMENDMENT OF LEASE SUPPLEMENT NO. 1, EQUIPMENT SCHEDULE AND
WAIVER AND MODIFICATION AGREEMENT; AND
RELEASE OF SECURITY INTEREST
This Assignment of Leasehold and Subleasehold Interests; Amendment of Lease
Supplement No. 1, Equipment Schedule and Waiver and Modification Agreement; and
Release of Security Interest (this "Assignment"), dated as of October 31, 1994,
is entered into by and between Rohr, Inc., a Delaware corporation ("Rohr"),
State Street Bank and Trust Company of California, National Association, a
national banking association, and Lynda Vogel, successor trustee to W. Jeffrey
Kramer, not in an individual capacity but solely as owner trustees under a trust
agreement for the benefit of JCB Credit Corporation (State Street Trust and Bank
Company of California, National Association, and Lynda Vogel are referred to
collectively as the "Trustees"), and JCB Credit Corporation ("Beneficiary").
RECITALS
A. Rohr and the Trustees, as owner trustees under that certain Trust
Agreement, dated as of September 14, 1992 for the benefit of Beneficiary, are
parties to the following agreements:
(1) Lease Agreement, dated as of September 14, 1992, including Lease
Supplement No. 1 thereto (such supplement is referred to herein as the
"Supplement"; collectively, such Lease Agreement and the Supplement are
referred to herein as the "Lease");
(2) Sublease Agreement, dated as of September 14, 1992, as amended to
date, including the Equipment Schedule thereto (such equipment schedule is
referred to herein as the "Schedule"; collectively, such Sublease Agreement
and the Schedule are referred to herein as the "Sublease");
(3) Waiver and Modification Agreement, dated as of July 9, 1993, pursuant
to which Rohr agreed to pay certain amounts to Beneficiary in connection
with certain assignments of its beneficial interest in a trust (the "Waiver
Agreement"); and
(4) Security Agreement, dated as of July 9, 1993, pursuant to which Rohr
granted a security interest in certain collateral to the Trustees (the
"Security Agreement").
B. Rohr and Beneficiary desire that the Trustees:
19
(1) assign their rights and obligations under the Lease and the Sublease
solely with respect to certain equipment to Rohr;
(2) agree to amend the Waiver Agreement by deleting Section 5 thereof;
and
(3) release the security interest granted to them pursuant to the
Security Agreement.
AGREEMENT
NOW, THEREFORE, Rohr, the Trustees and Beneficiary agree as follows:
1. Assignment of Rights under the Lease. The Trustees and Beneficiary
------------------------------------
assign to Rohr all of the rights and obligations granted to them in, to and
under the Lease solely with respect to the items of equipment identified on
Exhibit A hereto (the "Assigned Equipment"), provided, however, such assignment
-------- -------
shall not affect the rights and obligations of the Trustees, Beneficiary and
Rohr with respect to the equipment that will remain leased to the Trustees under
the Lease and, with respect to the Assigned Equipment, such assignment shall not
affect the rights and obligations of such parties (a) for periods up to the
Effective Date (as defined in Section 10 below) and (b) for periods on and after
such date to the extent the Lease provides that such rights and obligations
shall survive termination of the Lease.
2. Assignment of Rights under the Sublease. The Trustees and Beneficiary
---------------------------------------
assign to Rohr all of the rights and obligations granted to them in, to and
under the Sublease solely with respect to the Assigned Equipment, provided,
--------
however, such assignment shall not affect the rights and obligations of the
- -------
Trustees, Beneficiary and Rohr with respect to the equipment that will remain
subleased to Rohr under the Sublease and, with respect to the Assigned
Equipment, such assignment shall not affect the rights and obligations of such
parties (a) for periods up to the Effective Date and (b) for periods on and
after such date to the extent the Sublease provides that such rights and
obligations shall survive termination of the Sublease.
3. AS-IS, WHERE-IS Basis. The assignments set forth in Sections 1 and 2
---------------------
hereof are made on an AS-IS, WHERE-IS basis with no recourse to or warranty by
the Trustees or Beneficiary except that each of Beneficiary and the Trustees
warrants that it has not sold, assigned or transferred to any party any portion
of the rights granted to it in, to or under the Lease or the Sublease and has
not granted any party any lien or other encumbrance in any such right.
20
4. Payment to Beneficiary. Rohr agrees to pay to Beneficiary, by wire
----------------------
transfer of immediately available funds, Two Million One Hundred Eighty One
Thousand Six Hundred Seventy Four Dollars ($2,181,674.00) (representing the
Capitalized Sublessor's Cost of the Assigned Equipment multiplied by a
Termination Value of 98.500%), plus applicable sales tax, if any.
5. Amendment of Supplement. On and after the Effective Date, the Supplement
-----------------------
is amended as follows:
(a) Annex A to the Supplement is amended in its entirety to read as set
forth in the form of Annex A attached to this Assignment as Exhibit B.
6. Amendment of Schedule. On and after the Effective Date, the Schedule is
---------------------
amended as follows:
(a) the Capitalized Sublessor's Cost identified in Section B.2 of the
Schedule is amended from $4,972,135.00 to $2,757,238.00; such lesser amount
(i) represents the Capitalized Sublessor's Cost of the equipment which will
remain subleased to Rohr under the Sublease immediately after the Effective
Date and (ii) shall be used for calculating Basic Term Rent under the
Sublease for rentals due on and after the Effective Date;
(b) Section C.1 of the Schedule is amended by deleting therefrom the
words "having a Capitalized Sublessor's Cost of $4,608,335.00";
(c) Section C.2 of the Schedule is amended by deleting therefrom the
words ", having a Capitalized Sublessor's Cost of $363,800.00"; and
(d) Annex A to the Schedule is amended in its entirety to read as set
forth in the form of Annex A attached to this Assignment as Exhibit B.
7. Amendment of Waiver Agreement. On and after the Effective Date, the
-----------------------------
Waiver Agreement is amended by deleting Section 5 thereof in its entirety.
8. Termination of Security Agreement and Release of Security Interest. The
------------------------------------------------------------------
Security Agreement, and all of the rights and obligations of the parties under
such agreement, are hereby terminated. The Trustees release the security
interest granted to them by the Security Agreement.
9. Limited Waiver. With respect to this Assignment only, the parties hereto
--------------
waive the provisions of Section 5.3 of the Lease and Section XIII(a) of the
Sublease to the extent they are inconsistent with the terms hereof. Such waiver
is limited to the
21
matters expressly provided in this paragraph and, except as expressly provided
in this paragraph, shall not be deemed to waive any other provision of the Lease
or the Sublease or to serve as a waiver of any other matter. The assignments
agreed to herein are limited to the matters provided for in this Assignment and
shall not extend to the equipment remaining leased to the Trustees under the
Lease and subleased to Rohr under the Sublease. Except as otherwise provided for
herein, the Lease and the Sublease, as in effect immediately prior to the
Effective Date, remain unmodified and in full force and effect.
10. Conditions to Effectiveness. This Assignment shall become effective on
---------------------------
the date (the "Effective Date") on which all of the following shall have
occurred:
(a) this Assignment shall have been executed and delivered by Rohr, each
of the Trustees and Beneficiary;
(b) Rohr, the Trustees, as trustees under another trust agreement, and
ELLCO Leasing Corporation shall have executed and delivered an assignment
substantially identical to this Assignment;
(c) Rohr, the Trustees, as trustees under another trust agreement, and
General Electric Credit Corporation shall have executed and delivered an
assignment substantially identical to this Assignment;
(d) Rohr, the Trustees, as trustees under another trust agreement, and
Sanwa General Equipment Leasing, a division of Sanwa Business Credit
Corporation shall have executed and delivered an assignment substantially
identical to this Assignment;
(e) Rohr shall have paid Beneficiary the amount required by Section 4
hereof; and
(f) the Trustees shall have executed and delivered to Rohr a letter to
Wells Fargo Bank, N.A. substantially in the form attached to this
Assignment as Exhibit C.
Within fourteen days after the Effective Date, the Trustees:
(i) shall execute and deliver to Rohr UCC-2 financing statements, in
form and substance satisfactory to Rohr, terminating the security interest
granted to the Trustees under the Security Agreement; and
(ii) shall execute and deliver to Rohr UCC-2 financing statements, in
form and substance satisfactory to Rohr, releasing any security interests
of the Trustees in the Assigned Equipment.
22
11. Jury Trial Waiver. EACH OF THE PARTIES HERETO HEREBY UNCONDITIONALLY
-----------------
WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS ASSIGNMENT, ANY DEALINGS AMONG ANY
OF THEM RELATING TO THE SUBJECT MATTER HEREOF, AND/OR THE RELATIONSHIP AMONG
THEM. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND
ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION,
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
AND STATUTORY CLAIMS). 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
ASSIGNMENT. IN THE EVENT OF LITIGATION, THIS ASSIGNMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
12. Direction to Trustees. Beneficiary hereby joins in this Assignment to
---------------------
acknowledge its consent to the terms and provisions hereof and to direct the
Trustees to enter into this Assignment and all other agreements, instruments and
documents to be executed in connection herewith in their capacity as owner
trustees.
13. Expenses. Rohr agrees to pay all reasonable costs and expenses of the
--------
Trustees and Beneficiary in connection with the preparation, execution, delivery
and enforcement of this Assignment and all other agreements, instruments and
documents executed in connection herewith.
14. Further Assurances. Each of the parties hereto agrees that at any time
------------------
it shall execute and deliver all further instruments and documents, and take all
further action, in order to effectuate or otherwise document the transactions
contemplated hereby or otherwise implement the intention of the parties under
this Assignment, as any of the parties hereto and their successors and assigns
reasonably may request.
15. Modifications. NO VARIATION OR MODIFICATION OF THIS ASSIGNMENT OR ANY
-------------
WAIVER OF ANY OF ITS PROVISIONS OR CONDITIONS, SHALL BE VALID UNLESS IN WRITING
AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF EACH OF THE PARTIES HERETO.
16. Multiple Counterparts. This Assignment may be executed in two or more
---------------------
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall constitute one and
the same instrument.
23
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be
executed by their duly authorized representatives as of the date first above
written.
Rohr, Inc. State Street Bank and Trust
Company of California, National
Association, not in its individual
By:/s/ L.A. Chapman capacity but solely as Corporate Trustee
-----------------------
Name: Laurence A. Chapman
Title: Senior Vice President
and Chief Financial
Officer By:/s/ Lynda A. Vogel
------------------------
Name: Lynda A. Vogel
Title: Senior Vice President
JCB Credit Corporation
/s/ Lynda A. Vogel
By:/s/ T. F. Fanelli ---------------------------
--------------------- Lynda A. Vogel,
Name: T. F. Fanelli not in her individual capacity,
Title: Mgr Operations but solely in her capacity as
Individual Trustee
24