2900 Semiconductor Drive
Santa Clara, CA 95052
March 11, 1997
Fairchild Semiconductor Corporation
333 Western Avenue
Portland, Maine 04106
Attention: Kirk P. Pond
Gentlemen:
Reference is hereby made to the Master Lease Agreement
(the "Lease"), dated as of December 13, 1994, between General
Electric Capital Corporation ("GECC") and National Semiconductor
Corporation ("NSC"), as amended by Amendment No. 1 thereto, dated
as of December 13, 1994, which Lease you hereby represent you
have read and fully understand.
Subject to the terms and conditions set forth below, we
hereby agree to sublease to you, and you hereby agree to sublease
from us, the equipment (the "Equipment") described in Annex A to
any schedule to the Lease as of the date hereof (any such
schedule, a "Schedule").
You hereby agree to pay to us as sublease payments an
amount equal to the amounts we pay to GECC as lease payments
pursuant to the Lease, such payments to be received by us on the
date payments by us are due under the Lease, and we agree to
remit such payments to GECC on such date.
We agree to continue the Lease for your benefit and to
exercise all of the rights under the Lease solely for your
benefit and at your request. You agree to perform or assist us
in performing our obligations under the Lease other than lease
payments which will be paid directly by us; provided, that you
make payments to us in accordance with the immediately preceding
paragraph. You shall look solely to GECC to satisfy all
obligations of GECC under the Lease. We shall use our reasonable
efforts to cooperate with you in seeking satisfaction from GECC
of GECC's obligations under the Lease; provided, however, that
you shall indemnify and hold us harmless from and against all
liabilities, claims, losses, costs and expenses (including,
without limitations, attorneys' fees) incurred by us in
connection with or arising out of such cooperation except to the
extent resulting from our negligence or willful misconduct.
The term of this Sublease with respect to any piece of
Equipment shall be the period specified in the applicable
Schedule. You may terminate this Sublease at any time on the
same terms and conditions as we may terminate the Lease. We
agree not to terminate the Lease without your consent.
Upon expiration of this sublease and upon your timely
written request and our receipt of an amount equal to the amount
to be paid to exercise such option plus any costs and expenses to
be incurred by us in connection with such exercise, (i) we shall
use our best efforts to exercise, to the extent practicable, our
purchase option contained in and in accordance with Section XIX
of the Lease and (ii) we shall transfer the Equipment so
purchased to you pursuant to a mutually acceptable transfer
agreement.
Very truly yours,
NATIONAL SEMICONDUCTOR
CORPORATION
By: _____________________________
Name:
Title:
AGREED AND ACCEPTED:
FAIRCHILD SEMICONDUCTOR
CORPORATION
By: __________________________
Name:
Title:
MASTER LEASE AGREEMENT
THIS MASTER LEASE AGREEMENT, dated as of Dec. 13, 1994
("Agreement"), between General Electric Capital Corporation, with
an office at 2200 Powell Street Suite 600, Emeryville, CA 94608
(hereinafter called, together with its successors and assigns, if
any, "Lessor"), and National Semiconductor Corporation, a
corporation organized and existing under the laws of the State of
Delaware with its mailing address and chief place of business at
2900 Semiconductor Drive, Santa Clara, CA 95052 (hereinafter
called "Lessee").
WITNESSETH:
I. LEASING:
(a) Subject to the terms and conditions set forth below,
Lessor agrees to lease to Lessee, and Lessee agrees to lease from
Lessor, the equipment ("Equipment") described in Annex A to any
schedule hereto ("Schedule"). Terms defined in a Schedule and
not otherwise defined herein shall have the meanings ascribed to
them in such Schedule.
(b) The obligation of Lessor to purchase Equipment from the
manufacturer or supplier thereof ("Supplier") and to lease the
same to Lessee under any Schedule shall be subject to receipt by
Lessor, prior to the Lease Commencement Date (with respect to
such Equipment), of each of the following documents in form and
substance satisfactory to Lessor: (i) a Schedule relating to the
Equipment then to be leased hereunder, (ii) a Purchase Order
Assignment and Consent in the form of Annex B to the applicable
Schedule, unless Lessor shall have delivered its purchase order
for such Equipment, (iii) evidence of insurance which complies
with the requirements of Section X, and (iv) such other documents
as Lessor may reasonable request. As a further condition to such
obligations to Lessor, Lessee shall, upon delivery of such
Equipment (but not later than the Last Delivery Date specified in
the applicable Schedule) execute and deliver to Lessor a
Certificate of Acceptance (in the form of Annex C to the
applicable Schedule) covering such Equipment, and deliver to
Lessor a bill of sale therefor (in form and substance
satisfactory to Lessor). Lessor hereby appoints Lessee its agent
for inspection and acceptance of the Equipment from the Supplier.
Upon execution by Lessee of any Certificate of Acceptance, the
Equipment described thereon shall be deemed to have been
delivered to, and irrevocably accepted by, Lessee for lease
hereunder.
II. TERM, RENT AND PAYMENT:
(a) The rent payable hereunder and Lessee's right to use
the Equipment shall commence on the date of execution by Lessee
of the Certificate of Acceptance for such Equipment ("Lease
Commencement Date"). The term of this Agreement shall be the
period specified in the applicable Schedule. If any term is
extended, the word "term" shall be deemed to refer to all
extended terms, and all provisions of this Agreement shall apply
during any extended terms, except as may be otherwise
specifically provided in writing.
(b) Rent shall be paid to Lessor at its address stated
above, except as otherwise directed by Lessor. Payments of rent
shall be in the amount set forth in, and due in accordance with,
the provisions of the applicable Schedule. If one or more
Advance Rentals are payable, such Advance Rental shall be (i) set
forth on the applicable Schedule, (ii) due upon acceptance by
Lessor of such Schedule, and (iii) when received by Lessor,
applied to the first rent payment and the balance, if any, to the
final rental payment(s) under such Schedule. In no event shall
any Advance Rental or any other rent payments be refunded to
Lessee. If rent is not paid within ten days of its due date,
Lessee agrees to pay a late charge of five cents ($.05) per
dollar on, and in addition to, the amount of such rent but not
exceeding the lawful maximum, if any.
III. RENT ADJUSTMENT:
(a) The periodic rent payments in each Schedule have been
calculated on the assumption (which, as between Lessor and
Lessee, is mutual) that the maximum effective corporate income
tax rate (exclusive of any minimum tax rate) for calendar-year
taxpayers ("Effective Rate") will be thirty-five percent (35%)
each year during the lease term.
(b) If, solely as a result of Congressional enactment of
any law (including, without limitation, any modification of, or
amendment or addition to, the Internal Revenue Code of 1986, as
amended, (the "Code")), the Effective Rate is higher than
thirty-five percent (35%) for any year during the lease term,
then Lessor shall have the right to increase such rent payments
by requiring payment of a single additional sum equal to the
product of (i) the Effective Rate (expressed as a decimal) for
such year less .35 (or, in the event that any adjustment has been
made hereunder for any previous year, the Effective Rate
(expressed as a decimal) used in calculating the next previous
adjustment) times (ii) the adjusted Termination Value divided by
the difference between the new Effective Tax Rate (expressed as a
decimal) and one (1). The adjusted Termination Value shall be
the Termination Value (calculated as of the first rental due in
the year for which such adjustment is being made) less the Tax
Benefits that would be allowable under Section 168 of the Code
(as of the first day of the year for which such adjustment is
being made and all subsequent years of the lease term). Lessee
shall pay to Lessor the full amount of the additional rent
payment on the later of (i) receipt of notice or (ii) the first
day of the year for which such adjustment is being made.
(c) Lessee's obligations under this Section III shall
survive any expiration or termination of this Agreement.
IV. TAXES: Except as provided in Sections III and XV(c), Lessee
shall have no liability for taxes imposed by the United States of
America or any State or political subdivision thereof which are
on or measured by the net income of Lessor. Lessee shall report
(to the extent that it is legally permissible) and pay promptly
all other taxes, fees and assessments due, imposed, assessed or
levied against any Equipment (or the purchase, ownership,
delivery, leasing, possession, use or operation thereof), this
Agreement (or any rentals or receipt hereunder), any Schedule.
Lessor or Lessee by any foreign, federal, state or local
government or taxing authority during or related to the term of
this Agreement, including, without limitation, all license and
registration fees, and all sales, use, personal property, excise,
gross receipts, franchise, stamp or other taxes, imposts, duties
and charges, together with any penalties, fines or interest
thereon (all hereinafter called "Taxes"). Lessee shall (i)
reimburse Lessor upon receipt of written request for
reimbursement for any Taxes charged to or assessed against
Lessor, (ii) on request of Lessor, submit to Lessor written
evidence of Lessee's payment of Taxes, (iii) on all reports or
returns show the ownership of the Equipment by Lessor, and (iv)
send a copy thereof to Lessor.
V. REPORTS:
(a) Lessee will notify Lessor in writing, within ten (10)
days after any tax or other lien shall attach to any Equipment,
of the full particulars thereof and of the location of such
Equipment on the date of such notification.
(b) Lessee will within ninety (90) days of the close of
each fiscal year of Lessee, deliver to Lessee, Lessee's balance
sheet and profit and loss statement, certified by a recognized
firm of certificate public accountants. Upon request Lessee will
deliver to Lessor quarterly, within ninety (90) days of the close
of each fiscal quarter of Lessee, in reasonable detail, copies of
Lessee's quarterly financial report certified by the chief
financial officer of Lessee.
(c) Lessee will permit Lessor to inspect any Equipment
during normal business hours.
(d) Lessee will keep the Equipment at the Equipment
Location (specified in the applicable Schedule) and will promptly
notify Lessor of any relocation of Equipment. Upon the written
request of Lessor, Lessee will notify Lessor forthwith in writing
of the location of any Equipment as of the date of such
notification.
(e) Lessee will promptly and fully report to Lessor in
writing if any Equipment is lost or damaged (where the estimated
repair costs would exceed ten percent (10%) of its then fair
market value), or is otherwise involved in an accident causing
personal injury or property damage.
(f) Within sixty (60) days after any request by Lessor,
Lessee will furnish a certificate of an authorized officer of
Lessee stating that he has reviewed the activities of Lessee and
that, to the best of his knowledge, there exists no default (as
described in Section XII) or event which with notice or lapse of
time (or both) would become such a default.
VI. DELIVERY, USE AND OPERATION:
(a) All Equipment shall be shipped directly from the
Supplier to Lessee.
(b) Lessee agrees that the Equipment will be used by Lessee
solely in the conduct of its business and in a manner complying
with all applicable federal, state and local laws and
regulations.
(c) LESSEE SHALL NOT ASSIGN, MORTGAGE, SUBLET OR
HYPOTHECATE ANY EQUIPMENT, OR THE INTEREST OF LESSEE HEREUNDER.
NOR SHALL LESSEE REMOVE ANY EQUIPMENT FOR THE CONTINENTAL UNITED
STATES, WITHOUT THE PRIOR WRITTEN CONSENT OF THE LESSOR.
(d) Lessee will keep the Equipment free and clear of all
liens and encumbrances other than those which result from acts of
Lessor.
VII. SERVICE:
(a) Lessee will, at its sole expense, maintain each unit of
Equipment in good operating order, repair, condition and
appearance in accordance with manufacturer's recommendations,
normal wear and tear excepted. Lessee shall, if at any time
requested by Lessor, affix in a prominent position on each unit
of Equipment plates, tags or other identifying labels showing
ownership thereof by Lessor.
(b) Lessee will not, without the prior consent of Lessor,
affix or install any accessory, equipment or device on any
Equipment if such addition will impair the originally intended
function or use of such Equipment. All additions, repairs,
parts, supplies, accessories, equipment, and devices furnished,
attached or affixed to any Equipment which are not readily
removable shall be made only in compliance with applicable law,
including Internal Revenue Service guidelines, and shall become
the property of Lessor. Lessee will not, without the prior
written consent of Lessor and subject to such conditions as
Lessor may impose for its protection, affix or install any
Equipment to or in any other personal or real property.
(c) Any alterations or modifications to the Equipment that
may, at any time during the term of this Agreement, be required
to comply with any applicable law, rule or regulation shall be
made at the expense of Lessee.
VIII. STIPULATED LOSS VALUE: Lessee shall promptly and fully
notify Lessor in writing if any unit of Equipment shall be or
become worn out, lost, stolen, destroyed, irreparably damaged in
the reasonable determination of Lessee, or permanently rendered
unfit for use from any cause whatsoever (such occurrences being
hereinafter called "Casualty Occurrences"). On the rental
payment date next succeeding a Casualty Occurrence (the "Payment
Date"), Lessee shall pay Lessor the sum of (x) the Stipulated
Loss Value of such unit calculated as of the rental next
preceding such Casualty Occurrence ("Calculation Date"); and (y)
all rental and other amounts which are due hereunder as of the
Payment Date. Upon payment of all sums due hereunder, the term
of this lease as to such unit shall terminate and (except in the
case of the loss, theft or complete destruction of such unit)
Lessor shall be entitled to recover possession of such unit.
IX. LOSS OR DAMAGE: Lessee hereby assumes and shall bear the
entire risk of any loss, theft, damage to, or destruction of, any
unit of Equipment from any cause whatsoever from the time the
Equipment is shipped to Lessee.
X. INSURANCE: Lessee agrees, at its own expense, to keep all
Equipment insured for such amounts and against such hazards as
Lessor may require, including, but not limited to, insurance for
damages to or loss of such equipment and liability coverage for
personal injuries, death or property damage, with Lessor named as
additional insured and with a loss payable clause in favor of
Lessor, as its interest may appear, irrespective of any breach of
warranty or other act or omission of Lessee. All such policies
shall be with companies, and on terms, satisfactory to Lessor.
Lessee agrees to deliver to Lessor evidence of insurance
satisfactory to Lessor. No insurance shall be subject to any
co-insurance clause. Lessee hereby appoints Lessor as Lessee's
attorney-in-fact to make proof of loss and claim for insurance,
and to make adjustments with insurers and to receive payment of
and execute or endorse all documents, checks or drafts in
connection with payments made as a result of such insurance
policies. Any expense of Lessor in adjusting or collecting
insurance shall be borne by Lessee. Lessee will not make
adjustments with insurers except (i) with respect to claims for
damage to any unit of Equipment where the repair costs do not
exceed ten percent (10%) of such unit's fair market value, or
(ii) with Lessor's written consent. Said policies shall provide
that the insurance may not be altered or canceled by the insurer
until after thirty (30) days written notice to Lessor. Lessor
may, at its option, apply proceeds of insurance, in whole or in
part, to (i) repair or replace Equipment or any portion thereof,
or (ii) satisfy any obligation of Lessee to Lessor hereunder.
XI. RETURN OF EQUIPMENT:
(a) Upon any expiration or termination of this Agreement or
any Schedule, Lessee shall promptly, at its own cost and expense:
(i) perform any testing and repairs required to place the
affected units of Equipment in the same condition and appearance
as when received by Lessee (reasonable wear and tear excepted)
and in good working order for their originally intended purpose;
(ii) if deinstallation, disassembly or crating is required, cause
such units to be deinstalled, disassembled and crated by an
authorized manufacturer's representative or such other service
person as is satisfactory to Lessor, and (iii) return such units
to a location within the continental United States as Lessor
shall direct.
(b) Until Lessee has fully complied with the requirements
of Section XI(a) above, Lessee's rent payment obligation and all
other obligations under this Agreement shall continue from month
to month notwithstanding any expiration or termination of the
lease term. Lessor may terminate such continued leasehold
interest upon ten (10) days notice to Lessee.
XII. DEFAULT:
(a) Lessor may in writing declare this Agreement in default
if: Lessee breaches its obligation to pay rent or any other sum
when due and fails to cure the breach within ten (10) days;
Lessee breaches any of its insurance obligations under Section X;
Lessee breaches any of its other obligations and fails to cure
that breach within thirty (30) days after written notice thereof;
any representation or warranty made by Lessee in connection with
this Agreement shall be false or misleading in any material
respect; Lessee becomes insolvent or ceases to do business as a
going concern; any Equipment is illegally used; or a petition is
filed by or against Lessee or any guarantor of Lessee's
obligations to Lessor under any bankruptcy or insolvency laws.
Such declaration shall apply to all Schedules except as
specifically excepted by Lessor.
(b) After default, at the request of Lessor, Lessee shall
comply with the provisions of Section XI(a). Lessee hereby
authorizes Lessor to enter, with or without legal process, any
premises where any Equipment is believed to be and take
possession thereof. Lessee shall, without further demand,
forthwith pay to Lessor (i) as liquidated damages for loss of a
bargain and not as a penalty, the Stipulated Loss Value of the
Equipment (calculated as of the rental next preceding the
declaration of default), and (ii) all rentals and other sums then
due hereunder. Lessor may, but shall not be required to, sell
Equipment at private or public sale, in bulk or in parcels, with
or without notice, and without having the Equipment present at
the place of sale; or Lessor may, but shall not be required to,
lease, otherwise dispose of or keep idle all or part of the
Equipment; and Lessor may use Lessee's premises for any or all of
the foregoing without liability for rent, costs, damages or
otherwise. The proceeds of sale, lease or other disposition, if
any, shall be applied in the following order of priorities: (1)
to pay all of Lessor's costs, charges and expenses incurred in
taking, removing, holding, repairing and selling, leasing or
otherwise disposing of Equipment; then, (2) to the extent not
previously paid by Lessee, to pay Lessor all sums due from Lessee
hereunder; then (3) to reimburse to Lessee any sums previously
paid by Lessee as liquidated damages; and (4) any surplus shall
be retained by Lessor. Lessee shall pay any deficiency in (1)
and (2) forthwith.
(c) The foregoing remedies are cumulative, and any or all
thereof may be exercised in lieu of or in addition to each other
or any remedies at law, in equity, or under statute. Lessee
waives notice of sale or other disposition (and the time and
place thereof), and the manner and place of any advertising.
Lessee shall pay Lessor's actual attorney's fees incurred in
connection with the enforcement, assertion, defense or
preservation of Lessor's rights and remedies hereunder, or if
prohibited by law, such lesser sum as may be permitted. Waiver
of any default shall not be a waiver of any other or subsequent
default.
(d) Any default under the terms of this or any other
agreement between Lessor and Lessee may be declared by Lessor a
default under this and any such other agreement.
XIII. ASSIGNMENT: Lessor may, without the consent of Lessee,
assign this Agreement or any Schedule. Lessee agrees that if
Lessee receives written notice of an assignment from Lessor,
Lessee will pay all rent and all other amounts payable under any
assigned Equipment Schedule to such assignee or as instructed by
Lessor. Lessee further agrees to confirm in writing receipt of
the notice of assignment as may be reasonably requested by
assignee. Lessee hereby waives and agrees not to assert against
any such assignee any defense, set-off, recoupment claim or
counterclaim which Lessee has or may at any time have against
Lessor for any reason whatsoever.
XIV. NET LEASE; NO SET-OFF, ETC: This Agreement is a net lease.
Lessee's obligation to pay rent and other amounts due hereunder
shall be absolute and unconditional. Lessee shall not be
entitled to any abatement or reductions of, or set-offs against,
said rent or other amounts, including, without limitation, those
arising or allegedly arising out of claims (present or future,
alleged or actual, and including claims arising out of strict
tort or negligence of Lessor) of Lessee against Lessor under this
Agreement or otherwise. Nor shall this Agreement terminate or
the obligations of Lessee be affected by reason of any defect in
or damage to, or loss of possession, use or destruction of, any
Equipment from whatsoever cause. It is the intention of the
parties that rents and other amounts due hereunder shall continue
to be payable in all events in the manner and at the times set
forth herein unless the obligation to do so shall have been
terminated pursuant to the express terms hereof.
XV. INDEMNIFICATION:
(a) Lessee hereby agrees to indemnify, save and keep
harmless Lessor, its agents, employees, successors and assigns
from and against any and all losses, damages, penalties,
injuries, claims, actions and suits, including legal expenses, of
whatsoever kind and nature, in contract or tort, whether caused
by the active or passive negligence of Lessor or otherwise, and
including, but not limited to, Lessor's strict liability in tort,
arising out of (i) the selection, manufacture, purchase,
acceptance or rejection of Equipment, the ownership of Equipment
during the term of this Agreement, and the delivery, lease,
possession, maintenance, uses, condition, return or operation of
Equipment (including, without limitation, latent and other
defects, whether or not discoverable by Lessor or Lessee and any
claim of patent, trademark or copyright infringement or
environmental damage) or (ii) the condition of Equipment sold or
disposed of after use by Lessee, any sublessee or employees of
Lessee. Lessee shall, upon request, defend any actions based on,
or arising out of, any of the foregoing.
(b) Lessee hereby represents, warrants and covenants that
(i) on the Lease Commencement Date for any unit of Equipment,
such unit will qualify for all of the items of deduction and
credit specified in Section C of the applicable Schedule ("Tax
Benefits") in the hands of Lessor (all references to Lessor in
this Section XV include Lessor and the consolidated taxpayer
group of which Lessor is a member), and (ii) at no time during
the term of this Agreement will Lessee take or omit to take, nor
will it permit any sublessee or assignee to take or omit to take,
any action (whether or not such act or omission is otherwise
permitted by Lessor or the terms of this Agreement), which will
result in the disqualification of any Equipment for, or recapture
of, all or any portion of such Tax Benefits.
(c) If as a result of a breach of any representation,
warranty or covenant of the Lessee contained in this Agreement or
any Schedule (x) tax counsel of Lessor shall determine that
Lessor is not entitled to claim on its Federal income tax return
all or any portion of the Tax Benefits with respect to any
Equipment, or (y) any such Tax Benefit claimed on the Federal
income tax return of Lessor is disallowed or adjusted by the
Internal Revenue Service, or (z) any such Tax Benefit is
recomputed or recaptured (any such determination, disallowance,
adjustment, recomputation or recapture being hereinafter called a
"Loss"), then Lessee shall pay to Lessor, as an indemnity and as
additional rent, such amount as shall, in the reasonable opinion
of Lessor, cause Lessor's after tax economic yields and cash
flows, computed on the same assumptions, including tax rates
(unless any adjustment has been made under Section III hereof, in
which case the Effective Rate used in the next preceding
adjustment shall be substituted), as were utilized by Lessor in
originally evaluating the transaction (such yields and flows
being hereinafter called the "Net Economic Return") to equal the
Net Economic Return that would have been realized by Lessor if
such Loss had not occurred. Such amount shall be payable upon
demand accompanied by a statement describing in reasonable detail
such Loss and the computation of such amount.
(d) All of Lessor's rights, privileges and indemnities
contained in this Section XV shall survive the expiration of
other termination of this Agreement and the rights, privileges
and indemnities contained herein are expressly made for the
benefit of, and shall be enforceable by Lessor, its successors
and assigns.
XVI. DISCLAIMER: LESSEE ACKNOWLEDGES THAT IT HAS SELECTED THE
EQUIPMENT WITHOUT ANY ASSISTANCE FROM LESSOR, ITS AGENTS OR
EMPLOYEES. LESSOR DOES NOT MAKE, HAS NOT MADE, NOR SHALL BE
DEEMED TO MAKE OR HAVE MADE, ANY WARRANTY OR REPRESENTATION,
EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE
EQUIPMENT LEASED HEREUNDER OR ANY COMPONENT THEREOF, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY AS TO DESIGN, COMPLIANCE WITH
SPECIFICATIONS, QUALITY OF MATERIALS OR WORKMANSHIP,
MERCHANTABILITY, FITNESS FOR ANY PURPOSE, USE OR OPERATION,
SAFETY, PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, OR TITLE.
All such risks, as between Lessor and Lessee, are to be borne by
Lessee. Without limiting the foregoing, Lessor shall have no
responsibility or liability to Lessee or any other person with
respect to any of the following, regardless of any negligence of
Lessor (i) any liability, loss or damage caused or alleged to be
caused directly or indirectly by any Equipment, any inadequacy
thereof, any deficiency or defect (latent or otherwise) therein,
or any other circumstance in connection therewith; (ii) the use,
operation or performance of any Equipment or any risks relating
thereto; (iii) any interruption of service, loss of business or
anticipated profits or consequential damages; or (iv) the
delivery, operation, servicing, maintenance, repair, improvement
or replacement of any Equipment. If, and so long as, no default
exists under this Lease, Lessee shall be, and hereby is,
authorized during the term of this Lease to assert and enforce,
at Lessee's sole cost and expense, from time to time, in the name
of and for the account of Lessor and/or Lessee, as their
interests may appear, whatever claims and rights Lessor may have
against any Supplier of the Equipment.
XVII. REPRESENTATIONS AND WARRANTIES OF LESSEE: Lessee
hereby represents and warrants to Lessor that on the date hereof
and on the date of execution of each Schedule:
(a) Lessee has adequate power and capacity to enter into,
and perform under, this Agreement and all related documents
(together, the "Documents") and is duly qualified to do business
wherever necessary to carry on its present business and
operations, including the jurisdiction(s) where the Equipment is
or is to be located.
(b) The Documents have been duly authorized, executed and
delivered by Lessee and constitute valid, legal and binding
agreements, enforceable in accordance with their terms, except to
the extent that the enforcement of remedies therein provided may
be limited under applicable bankruptcy and insolvency laws.
(c) No approval, consent or withholding of objections is
required from any governmental authority or instrumentality with
respect to the entry into or performance by Lessee of the
Documents except such as have already been obtained.
(d) The entry into and performance by Lessee of the
Documents will not: (i) violate any judgment, order, law or
regulation applicable to Lessee or any provision of Lessee's
Certificate of Incorporation or By-Laws; or (ii) result in any
breach of, constitute a default under or result in the creation
of any lien, charge, security interest or other encumbrance upon
any Equipment pursuant to any indenture, mortgage, deed of trust,
bank loan or credit agreement or other instrument (other than
this Agreement) to which Lessee is a party.
(e) There are no suits or proceedings pending or threatened
in court or before any commission, board or other administrative
agency against or affecting Lessee, which will have a material
adverse effect on the ability of Lessee to fulfill its
obligations under this Agreement.
(f) The Equipment accepted under any Certificate of
Acceptance is and will remain tangible personal property.
(g) Each Balance Sheet and Statement of Income delivered to
Lessor has been prepared in accordance with generally accepted
accounting principles, and since the date of the most recent such
Balance Sheet and Statement of Income, there has been no material
adverse change.
(h) Lessee is and will be at all times validly existing and
in good standing under the laws of the State of its incorporation
(specified in the first sentence of this Agreement).
(i) The Equipment will at all times be used for commercial
or business purposes.
XVIII. EARLY TERMINATION:
(a) On or after the First Termination Date (specified in
the applicable Schedule), Lessee may, so long as no default
exists hereunder, terminate this Agreement as to all (but not
less than all) of the Equipment on such Schedule as of a rent
payment date ("Termination Date") upon at least ninety (90) days
prior written notice to Lessor.
(b) Lessee shall, and Lessor may, solicit cash bids for the
Equipment on an AS IS, WHERE IS BASIS without recourse to or
warranty from Lessor, express or implied ("AS IS BASIS"). Prior
to the Termination Date, Lessee shall (i) certify to Lessor any
bids received by Lessee and (ii) pay to Lessor (A) the
Termination Value (calculated as of the rental due on the
Termination Date) for the Equipment, and (B) all rent and other
sums due and unpaid as of the Termination Date.
(c) Provided that all amounts due hereunder have been paid
on the Termination Date. Lessor shall (i) sell the Equipment on
an AS IS BASIS for cash to the highest bidder and (ii) refund the
proceeds of such sale (net of any related expenses) to Lessee up
to the amount of the Termination Value. If such sale is not
consummated, no termination shall occur and Lessor shall refund
the Termination Value (less any expenses incurred by Lessor) to
Lessee.
(d) Notwithstanding the foregoing, Lessor may elect by
written notice, at any time prior to the Termination Date, not to
sell the Equipment. In that event, on the Termination Date
Lessee shall (i) return the Equipment (in accordance with Section
XI) and (ii) pay to the Lessor all amounts required under Section
XVIII(b) less the amount of the highest and bid certified by
Lessee to Lessor.
XIX. PURCHASE OPTION:
(a) So long as no default exists hereunder and the lease
has not been earlier terminated, Lessee may at lease expiration,
upon at least one hundred eighty (180) days prior written notice
to Lessor, purchase all (but not less than all) of the Equipment
in any Schedule on an AS IS BASIS for cash equal to its then Fair
Market Value (plus all applicable sales taxes).
(b) "Fair Market Value" shall mean the price which a
willing buyer (who is neither a lessee in possession nor a used
equipment dealer) would pay for the Equipment in an arm's-length
transaction to a willing seller under no compulsion to sell;
provided, however, that in such determination: (i) the Equipment
shall be assumed to be in the condition in which it is required
to be maintained and returned under this Agreement; (ii) in the
case of any installed Equipment, that Equipment shall be valued
on an installed basis; and (iii) costs of removal from current
location shall not be a deduction from such valuation. If Lessor
and Lessee are unable to agree on the Fair Market Value at least
one hundred thirty-five (135) days before lease expiration,
Lessor shall appoint an independent appraiser (reasonably
acceptable to Lessee) to determine Fair Market Value, and that
determination shall be final, binding and conclusive. Lessee
shall bear all costs associated with any such appraisal.
(c) Lessee shall be deemed to have waived this option
unless it provides Lessor with written notice of its irrevocable
election to exercise the same within fifteen (15) days after Fair
Market Value is determined (by agreement or appraisal).
XX. MISCELLANEOUS:
(a) LESSEE HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF, DIRECTLY OR INDIRECTLY, THIS LEASE, ANY OF THE RELATED
DOCUMENTS, ANY DEALINGS BETWEEN LESSEE AND LESSOR RELATING TO THE
SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS,
AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN LESSEE
AND LESSOR. 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 LEASE, ANY RELATED DOCUMENTS, OR TO ANY
OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY
RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS LEASE MAY
BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(b) Unless and until Lessee exercises its rights under
Section XIX above, nothing herein contained shall give or convey
to Lessee any right, title or interest in and to any Equipment
except as a lessee. Any cancellation or termination by Lessor,
pursuant to the provision of this Agreement, any Schedule,
supplement or amendment hereto, or the lease of any Equipment
hereunder, shall not release Lessee from any then outstanding
obligations to Lessor hereunder. All Equipment shall at all
times remain personal property of Lessor regardless of the degree
of its annexation to any real property and shall not by reason of
any installation in, or affixation to, real or personal property
become a part thereof.
(c) Time is of the essence of this Agreement, Lessor's
failure at any time to require strict performance by Lessee of
any of the provisions hereof shall not waive or diminish Lessor's
right thereafter to demand strict compliance therewith. Lessee
agrees, upon Lessor's request, to execute any instrument
necessary or expedient for filing, recording or perfecting the
interest of Lessor. All notices required to be given hereunder
shall be deemed adequately given if sent by registered or
certified mail to the addressee at its address stated herein, or
at such other place as such addressee may have designated in
writing. This Agreement and any Schedule and Annexes thereto
constitute the entire agreement of the parties with respect to
the subject matter hereof. NO VARIATION OR MODIFICATION OF THIS
AGREEMENT OR ANY WAIVER OF ANY OF ITS PROVISIONS OR CONDITIONS,
SHALL BE VALID UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED
REPRESENTATIVE OF THE PARTIES HERETO.
(d) In case of a failure of Lessee to comply with any
provision of this Agreement, Lessor shall have the right, but
shall not be obligated to, effect such compliance, in whole or in
part; and all moneys spent and expenses and obligations incurred
or assumed by Lessor in effecting such compliance shall
constitute additional rent due to Lessor within five days after
the date Lessor sends notice to Lessee requesting payment.
Lessor's effecting such compliance shall not be a waiver of
Lessee's default.
(e) Any rent or other amount not paid to Lessor when due
hereunder shall bear interest, both before and after any judgment
or termination hereof, at the lesser of eighteen percent (18%)
per annum or the maximum rate allowed by law. Any provisions in
this Agreement and any Schedule which are in conflict with any
statute, law or applicable rule shall be deemed omitted, modified
or altered to conform thereto.
IN WITNESS WHEREOF, Lessee and Lessor have caused this
Agreement to be executed by their duly authorized representatives
as of the date first above written.
LESSOR: LESSEE:
General Electric Capital Corporation National Semiconductor Corporation
By: By:
-------------------------------- -------------------------------
Title: Title:
----------------------------- ----------------------------
AMENDMENT NO. 1
TO
MASTER LEASE AGREEMENT
DATED Dec. 13, 1994 (the "Lease")
BY AND BETWEEN
NATIONAL SEMICONDUCTOR CORPORATION ('Lessee')
AND
GENERAL ELECTRIC CAPITAL Co M RATION ("GE CAPITAL") ("Lessor")
WHEREAS, Lessor and Lessee have entered into or simultaneously
herewith are entering into the Lease; and
WHEREAS, Lessor and Lessee desire to amend certain provisions of
the Lease as hereinafter provided;
NOW THEREFORE, for good and valuable consideration, Lessor and
Lessee hereby agree to amend the Lease as follows:
1. Section II(b) is amended by deleting the last sentence
thereof and replacing with the following:
(b) if rent is not paid within ten days of its due date,
and such delay in caused by the acts or omissions of Lessee,
Lessee agrees to pay a late charge of five cents ($0.05) per
dollar on, and in addition to, the amount of such rent but
not exceeding the lawful maximum, if any.
2. Section III of the Lease in deleted in its entirety.
3. Section V(c) is deleted and replaced with the following:
(c) Lessee will permit Lessor to inspect any Equipment
during normal business hours upon not less than 2 days prior
notice by Lessor to Lessee.
4. Section VII(b) is amended by adding at the and thereof,
"except as necessary to put the Equipment in working order for
its originally intended purpose."
5. Section X is amended by inserting the following as a new
sixth sentence after the sentence that begins "Lessee hereby
appoints .":
Notwithstanding any provision hereof to the contrary, Lessor
shall not exercise its power as Lessee's attorney-in-fact
unless Lessee shall be in default under this Lease.
6. Section XI(a) is amended deleting clause (ii) of the last
sentence and replacing with the following:
(ii) if deinstallation, disassembly or crating is required,
cause such units to be deinstalled, disassembled and crated
in accordance with the manufacturer's standards and
reasonable recommendations, if any, and in any case in
accordance with industry standards applicable to Equipment
of that kind.
7. Section XII(b) is amended by deleting the second sentence
thereof and replacing with the following
Leases hereby authorized Lessor to enter, with or without
legal process, any premises where any Equipment is
reasonably believed to be located and take possession
thereof, provided Lessor complies with Lessee's reasonable
worksite and security rules while on Lessee's premises.
8. Section XII(c) is amended by deleting "actual" after
"Lessor's" and before "attorney's" and replacing with
"reasonable".
9. Section XII(d) is deleted and replaced with the following:
Any default by Lessee of its obligations under this Lease or
any Schedule hereunder may be declared by Lessor to be a
default under all Schedules.
10. Section XIII is amended by deleting the second sentence
thereof and replacing with the following:
Lessee agrees that if Lessee receives written notice of an
assignment from Lessor, Lessee will pay all rent and all
other amounts payable under any assigned Equipment Schedule
to such assignee or as instructed by Lessor, but Lessee
shall not be responsible to pay any assignee unless so
notified.
and is further amended by adding the following at the and of the
Section:
Nothing in this Section shall limit Lessee's rights to
commence a proceeding against Lessor before any tribunal of
competent jurisdiction to seek damages or other remedies for
any claim Lessee may have against Lessor, nor shall this
Section have any effect on Lessee's rights against any
assignee with respect to any acts or omissions of that
assignee.
10. Section XV(a) is amended by adding the following at the end
thereof:
Defense and indemnification under this Section is
conditioned upon Lessor giving Lessee timely written notice
of any claim against which Lessor wishes to be indemnified
hereunder (unless Lessee learns of any such claim from a
third party, or unless Lessor does not learn of such claim
until such time as Lessor, acting prudently on its own
behalf, would be precluded from defending by applicable law
or rules), and Lessor giving Lessee necessary and
appropriate information and assistance in the defense of
same. Lessee's obligation to pay or reimburse reasonable
fees of counsel selected by Lessor to defend any such claim
shall be conditioned upon Lessee's approval of such counsel,
which approval shall not be unreasonably withheld or
delayed. Lessor shall provide Lessee with periodic status
reports on the defense or settlement of such claim, upon
Lessee's reasonable request, and Lessor shall seek Lessee's
consent to any proposed settlement of such claim. If Lessee
does not consent to a proposed settlement of a claim, it
shall advise Lessor of its specific objections to the
proposed settlement and shall identify with particularity
the terms, if any, upon which it would consent to a
settlement of the claim. If Lessor settles any such claim
without Lessee's consent and Lessee objects to indemnifying
Lessor for such settlement, then Lessor and Lessee agree to
submit the question of the reasonableness of the settlement
to binding arbitration. In such arbitration, the arbitrator
shall be jointly selected by the parties (or, if they cannot
agree on an arbitrator, one shall be selected according to
the rules of the American Arbitration Association), and the
arbitrator shall determine to what extent, if any, Lessee
shall indemnify Lessor for both the settlement and any
attorneys' fees incurred in connection with the defense and
settlement of the claim. The decision of the arbitrator
shall be final and binding upon both parties, and neither
party shall seek recourse to a court of law or other
authorities to appeal for revision of such decision or any
other ruling of the arbitrator. The cost of the arbitration
shall be borne by both parties in equal amounts.
12. Section XVII(g) is amended by inserting "in Lessee's
financial condition" at the end thereof.
13. Section XIX(a) is amended by deleting "one hundred eighty
(180)" and replacing with "sixty (60)".
14. Section XIX(b) is deleted and replaced with the following:
(b) "Fair Market Value", shall mean the price which a
willing buyer (who is neither a lessee in possession nor a
used equipment dealer buying at wholesale) would pay for the
Equipment in an arm's-length transaction to a willing seller
under no compulsion to sell; provided, however, that in such
determination: (i) the Equipment shall be assumed to be in
the condition in which it is required to be maintained and
returned under this Agreement; (ii) in the case of any
installed Equipment, that Equipment shall be valued on an
installed basis; and (iii) costs of removal from current
location shall not be a deduction from such valuation. If
Lessor and Lessee are unable to agree on the Fair Market
Value at least forty-five (45) days before lease expiration,
Lessor and Lessee shall each appoint an independent
appraiser to provide an estimate of the Fair Market Value.
If the estimates differ by an amount that is less than or
equal to 15% of the lower estimate, the Fair Market Value
shall be conclusively determined to be the average of the
two estimates. If the estimates differ by more than 15% of
the lower estimate, the two appraisers shall jointly appoint
a third appraiser, who shall provide an estimate of the Fair
Market Value, and the Fair Market Value shall be the average
of the two estimates that differ by the least amount,
provided, however, if the middle estimate differs from the
lowest and the highest by the same amount, than the Fair
Market Value shall be conclusively determined to be the
amount of the middle estimate. Each party shall bear the
expense of the appraiser appointed by it, and the parties
shall equally bear the expense of the third appraiser.
15. Section XX(e) is amended by deleting "eighteen percent (18%)
per annum" in the second line, and replacing with "a per annum
rate equal to the sum of the "prime rate" as published in the
"Money Rates" column of the Wall Street Journal, Western Edition,
on the business day preceding the due date of such payment, plus
2% per annum (200 basic points)."
This Amendment shall be deemed to have been entered into
contemporaneously with and integrated into the terms and
conditions of the Lease.
Except as set out herein, Lessor and Lessee hereby agree that the
terms and conditions of the Lease shall remain in full force and
effect an entered into by the parties on or prior to the date
hereof.
LESSEE: LESSOR:
NATIONAL SEMICONDUCTOR GENERAL ELECTRIC CAPITAL
CORPORATION CORPORATION
By:--------------------------- By:----------------------------
Its:-------------------------- Its:---------------------------
Dated:------------------------ Dated:-------------------------
(Article 2A notice letter)
November 21, 1994
National Semiconductor Corporation
2900 Semiconductor Drive
Santa Clara, CA 95052
Attn: Mr. Richard Crowley
Dear Mr. Crowley:
General Electric Capital Corporation is entering into a lease
Agreement dated December 13, 1994 (the "Agreement") with National
Semiconductor Corporation for the lease of certain equipment set
forth on the attached Annex A (the "Equipment") to the Agreement.
In accordance with the requirements of Article 2A of the Uniform
Commercial Code, Lessor hereby makes the following disclosures to
Lessee prior to execution of the Agreement, (a) the person
supplying the Equipment is See Annex A (the "Supplier"), (b)
Lessee is entitled to the promises and warranties, including
those of any third party, provided to the Lessor by Supplier,
which is supplying the Equipment in connection with or as part of
the contract by which Lessor acquired the Equipment and (c) with
respect to such Equipment, Lessee may communicate with Supplier
and receive an accurate and complete statement of such promises
and warranties, including any disclaimers and limitations of them
or of remedies.
General Electric Capital Corporation
By:
---------------------------------
Its: Senior Operations Analyst
--------------------------------
Acknowledged and Agreed:
National Semiconductor Corporation
By:
----------------------------
Its:
---------------------------
ADDENDUM NO, 01
TO SCHEDULE NO. 001,002,003,004,005,006,007&008
TO
MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
RETURN CONDITIONS - ELECTRONICS EQUIPMENT
In addition to the provisions provided for in Section XI of
the Lease, and provided that the Lessee has not elected its
option to purchase the Equipment, Lessee shall,. at its expense:
(A) Upon the request of Lessor, Lessee shall no later than
180 days prior to the expiration or other termination of the
lease provide:
1. a detailed inventory of the Equipment (including
the model and serial number of each major component thereof),
including, without limitation, all internal circuit boards,
module boards, and software features;
2. a complete and current set of all manuals, blue
prints, process flow diagrams, equipment configuration diagrams,
maintenance records and other data reasonably requested by Lessor
concerning the configuration and operation of the Equipment; and
(B) Upon the request of Lessor, Lessee shaft, not later
than 120 days prior to the expiration or other termination of the
Lease make the Equipment available for on-site operational
inspection by persons designated by the Lessor who shall be duly
qualified to inspect the Equipment in its operational
environment.
(C) All Equipment shall be cleaned and treated with respect
to rust, corrosion and appearance in accordance with
manufacturer's recommendations and consistent with the best
practices of dealers in used equipment similar to the Equipment;
shall have no Lessee installed markings of labels which are not
necessary for the operation, maintenance or repair of the
Equipment, and shall be in compliance with all applicable
government laws, rules and regulations.
(D) The Equipment shall be de-installed and packed in
accordance with manufacturer's recommendations. Without
limitation, all internal fluids will either be drained and
disposed of or filled and secured in accordance with
manufacturer's recommendations and applicable government laws,
rules and regulations.
(E) The Equipment will be transported in accordance with
manufacturer's recommendations and applicable government laws,
rules and regulations to not more than one individual location
within the continental United States selected by Lessor.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL NATIONAL SEMICONDUCTOR
CORPORATION CORPORATION
By: By:
---------------------------- ----------------------------
ANNEX A
TO
SCHEDULE NO. 008
TO MASTER LEASE AGREEMENT
DATED AS OF
DESCRIPTION OF EQUIPMENT
Vendor Name Invoice # Inv. Date Equipment Cost
- ----------- --------- --------- --------- ----
Applied 112459 3/16/94 (1) Precision 5000 $1,659,620.00
Materials Mark II Tungsten
System and
attachments and
accessories described
more fully on invoice
#112459 attached
hereto and made a
part hereof. $3,451.76
Freight
Applied 112459 3/16/94 (2) 5000 Tungsten-Etch $56,930.00
Materials Back CES
(2) Window/A1203 $4,315.00
(1) Tyland MFC $48,300.00
LESS DISCOUNT {$85,827.50}
Varian 035460 10/19/93 Varian 64120 System $2,902,157.00
Assoc. and attachments and
accessories described
more fully on invoice
#035460 attached
hereto and made a part
hereof.
Varian 035460 11/04/93 Process Development $24,000.00
Assoc.
Varian 034988D 2/25/94 Varian Products $33,611.00
Assoc. described more fully
on invoice #034988D
attached hereto and
made a part hereof.
Freight $83.40
Varian 0349883 3/2/94 0981-F8473-301, Helium $1,314.03
Assoc. Calibrated Leak, 10-7
Range
Varian 034988G 3/17/94 0960-L6910-301 $28,347.00
Assoc. LD-Pump,
960T0/50-60HZ/115V
Freight $83.40
Varian 04952## 4/12/94 (6) 982-1111 (Y224) $48,504.00
Assoc. BTO Assembly for
Edwards Scroll Pump
INVOICE $4,724,889.09
COST
ANNEX B
TO
SCHEDULE NO. 008
TO MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
BILL OF SALE
National Semiconductor Corporation (the "Seller"), in
consideration of the sum of Four Million Seven Hundred
Twenty-four Thousand Eight Hundred Eighty-nine Dollars and Nine
Cents Dollars ($4,724,889.09) plus sales taxes in the amount of
zero Dollars ($00.00) (if exemption from sales tax is claimed, an
exemption certificate must be furnished to Buyer herewith), paid
by General Electric Capital Corporation (the "Buyer"), receipt of
which is acknowledged, hereby grants, sells, assigns, transfers
and delivers to Buyer the equipment (the "Equipment") described
in the above schedule (said schedule and related lease being
collectively referred to as "Lease"), along with whatever claims
and rights Seller may have against the manufacturer and/or
supplier of the Equipment (the "Supplier"), including but not
limited to all warranties and representations. At Buyer's
request, Seller will cause Supplier to execute the attached
Acknowledgment.
Buyer is purchasing the Equipment for leasing back to Seller
pursuant to the Lease. Seller represents and warrants to Buyer
that (1) Buyer will acquire by the terms of this Bill of Sale
good title to the Equipment free from all liens and encumbrances
whatsoever; (2) Seller has the right to sell the Equipment; and
(3) the Equipment has been delivered to Seller in good order and
condition, and conforms to the specifications, requirements and
standards applicable thereto; and (4) the equipment has been
accurately labeled, consistent with the requirements of 40 CFR
part 82 Subpart E, with respect to products manufactured with a
controlled (ozone-depleting) substance.
Seller agrees to save and hold harmless Buyer from and against
any and all federal, state, municipal and local license fees and
taxes of any kind or nature, including, without limiting the
generality of the foregoing, any and all excise, personal
property, use and sales taxes, and from and against any and all
liabilities, obligations, losses, damages, penalties, claims,
actions and suits resulting therefrom and imposed upon, incurred
by or asserted against Buyer as a consequence of the sale of the
Equipment to Buyer.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale this
________ day of ________, 19__.
SELLER:
National Semiconductor Corporation
By:_______________________________
Title:____________________________
ANNEX C
TO
SCHEDULE NO. 008
TO MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
CERTIFICATE OF ACCEPTANCE
To: General Electric Capital Corporation ("Lessor")
Pursuant to the provisions of the above schedule and lease
(collectively, the "Lease"), Lessee hereby certifies and warrants
that (a) all Equipment listed in the related Bill of Sale is in
good condition and appearance, installed (if applicable) and in
working order; and (b) Lessee accepts the Equipment for all
purposes of the Lease, the purchase documents and all attendant
documents.
Lessee does further certify that as of the date hereof (i)
Lessee is not in default under the Lease; (ii) the
representations and warranties made by Lessee pursuant to or
under the Lease are true and correct on the date hereof and (iii)
Lessee has reviewed and approves of the purchase documents for
the Equipment, if any.
DESCRIPTION OF EQUIPMENT
Manufacturer Serial Type and
Numbers Model of Number of Cost Per
Equipment Units Unit
See Annex A Attached hereto and Made A Part Hereof
________________________________
Authorized Representative
Dated: December 13, 1994
--------------------------
ANNEX D
TO
SCHEDULE NO 008
TO MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
STIPULATED LOSS AND TERMINATION VALUE TABLE*
TERMINATION VALUE STIPULATED LOSS VALUE
RENTAL PERCENTAGE PERCENTAGE
- ------------- ---------------------- --------------------------
1 103.789 107.973
2 103.052 107.328
3 102.306 106.674
4 101.546 106.006
5 100.773 105.325
6 99.986 104.631
7 99.186 103.922
8 98.377 103.205
9 97.554 102.474
10 96.717 101.730
11 95.872 100.976
12 95.013 100.209
13 94.140 99.428
14 93.258 98.638
15 92.367 97.840
16 91.467 97.032
17 90.557 96.214
18 89.638 95.387
19 88.709 94.550
20 87.772 93.704
21 86.824 92.849
22 85.867 91.984
23 84.901 91.110
24 83.925 90.226
25 82.940 89.332
26 81.945 88.429
27 80.941 87.517
28 79.930 86.598
29 78.911 85.672
30 77.886 84.738
31 76.853 83.798
32 75.810 82.847
33 74.761 81.890
34 73.704 80.925
35 72.638 79.951
36 71.564 78.969
37 70.480 77.977
38 69.060 76.649
39 67.627 75.308
40 66.186 73.959
41 64.736 72.601
42 63.277 71.234
43 61.809 69.858
44 60.328 68.469
45 58.838 67.072
TERMINATION VALUE STIPULATED LOSS VALUE
RENTAL PERCENTAGE PERCENTAGE
- ------------- ---------------------- --------------------------
46 57.340 65.665
47 55.829 64.246
48 54.308 62.817
49 52.778 61.380
50 51.236 59.929
51 49.681 58.466
52 48.118 56.995
53 46.548 55.517
54 44.970 54.032
55 43.385 52.539
56 41.787 51.033
57 40.182 49.519
PAYMENT AUTHORIZATION
General Electric Capital Corporation
2200 Powell Street Suite 600
Emeryville, CA 94608
You are hereby authorized to pay the proceeds from our sale to you
of certain Equipment as evidenced on the attached Bill of Sale to the
following parties in the amount(s) designated below.
National SemiConductor $4,724,889.09
Corporation
2900 Semiconductor Drive
Santa Clara, CA 95052-
8090
For reimbursement of funds
previously paid to various
vendors for equipment plus
attachments and
accessories including
labor described on Annex A
attached hereto and made a
part hereof.
Very truly yours,
National Semiconductor Corporation
By:_____________________________
Title:______________________________
Date:_______________________________
CERTIFICATE CONCERNING
PAYMENT OF PERSONAL PROPERTY TAXES
To: General Electric Capital Corporation
To insure Lessee's compliance with the provisions of a Master Lease
Agreement dated as of December 13, 1994 (the "Lease") by and between the
undersigned as Lessee and General Electric Capital Corporation as Lessor,
Lessee hereby agrees to one of the following options with respect to the
payment of personal property taxes on the Equipment described in Annex A to
the Lease, such agreement to be conclusively evidenced by the initials and
signature of an authorized agent of Lessee in the appropriate spaces provided
below:
Please choose one of the options below by placing an "X" in the appropriate
box and initialing where indicated. Initial ONLY ONE Choice of Option
OPTION 1
Lessee's Initials:
(Applicable in Jurisdictions Requiring Lessor to List Equipment): Lessee
agrees that it will not list any of such Equipment for property tax purposes
or report any property tax assessed against such Equipment until otherwise
directed in writing by Lessor. Upon receipt of any property tax bill
pertaining to such Equipment from the appropriate taxing authority, Lessor
will pay such tax and will invoice Lessee for the expense. Upon receipt of
such invoice, Lessee will promptly reimburse Lessor for such expense;
OPTION 2
Lessee's Initials:
(Applicable in Jurisdictions Permitting Lessee to List Equipment): Lessee
agrees that it will (a) list all such Equipment, (b) report all property
taxes assessed against such Equipment and (c) pay all such taxes when due
directly to the appropriate taxing authority until Lessor shall otherwise
direct in writing.
LESSEE:
National Semiconductor Corporation
By:____________________________
Title:________________________________
Date:_________________________________
ELECTRONIC AND TEST EQUIPMENT SCHEDULE
SCHEDULE NO. 008
DATED THIS DECEMBER 13, 1994
TO MASTER LEASE AGREEMENT
DATED AS OF DECEMBER 13, 1994
Lessor & Mailing Address: Lessee & Mailing Address:
General Electric Capital National Semiconductor
Corporation Corporation
2200 Powell Street, Suite 600 2900 Semiconductor Drive
Emeryville, CA 94608 Santa Clara, CA 95052
Capitalized terms not defined herein shall have the meanings assigned to them
in the Master Lease Agreement identified above ("Agreement"; said Agreement
and this Schedule being collectively referred to as "Lease").
A. Equipment
Pursuant to the terms of the Lease, Lessor agrees to acquire and lease
to Lessee the Equipment listed on Annex A attached hereto and made a
part hereof.
B. Financial Terms
1. Advance Rent (if any): $69,039.61
2. Capitalized Lessor's Cost: $4,724,889.09
3. Basic Term Lease Rate Factor: Mons. 1-36 1.46119,
Mons. 37-72 1.78557
4. Daily Lease Rate Factor: Mons. 1-36 .04871, Mons.
37-72 .05952
5. Basic Term (No. of Months): 72
6. Basic Term Commencement Date: 01/03/95
7. Equipment Location: 333 Western Avenue, South
Portland, ME
8. Lessee Federal Tax ID No.: 952095071
9. Last Delivery Date:
10. First Termination Date: Sixty (60) months after
the Basic Term Commencement Date.
C. Tax Benefits
Depreciation Deductions:
a. Depreciation Method (check one):
X The 200% declining balance method, switching to
straight line method for the 1st taxable year for which
using the straight line method with respect to the adjusted
basis as of the beginning of such year will yield a larger
allowance; OR
____ The method determined by applying to the unadjusted
basis the applicable percentages set forth in Section
168(b)(1) of the Code, as in effect prior to the adoption of
the Tax Reform Act of 1986.
b. Recovery Period: Five Years
c. Basis: 100% of Capitalized Lessor's Cost.
D. Rent
1. Interim Rent. For the period from and including the
Lease Commence Date to the Basic Term Commencement Date
("Interim Period"), Lessee shall pay as rent ("Interim
Rent") for each unit of Equipment, an amount equal to
(a) the product of the "Prime Rate" as published in the
"Money Rates" column of the Wall Street Journal,
Western Edition, on the business day preceding the
Acceptance Date, times the Capitalized Lessor's Cost of
such unit times the number of days in the Interim
Period, divided by (b) 360. Interim Rent shall be on
12/13/94 .
2. Basic Term Rent. Commencing on 01/03/95
and on the same day of each month thereafter
(each, a "Rent Payment Date") during the Basic Term,
Lessee shall pay as rent ("Basic Term Rent") the
product of the Basic Term Lease Rate Factor times the
Capitalized Lessor's Cost of all Equipment on this
Schedule.
3. [Deleted]
E. Insurance
1. Public Liability: $1,000,000 total liability per
occurrence.
2. Casualty and Property Damage: An amount equal to the
higher of the Stipulated Loss Value or the full
replacement cost of the Equipment.
F. Modifications and Additions to Lease
For purposes of this Schedule only, the Agreement is amended
as follows:
1. Section I(b) of the Agreement is hereby deleted in its
entirety and the following substituted in its stead:
(b) The obligation of Lessor to purchase the Equipment
from Lessee and to lease the same to Lessee shall be
subject to receipt by Lessor, on or prior to the
earlier of the Lease Commencement Date or Last Delivery
Date therefor, of each of the following documents in
form and substance satisfactory to Lessor: (i) a
Schedule relating to the Equipment then to be leased
hereunder, (ii) a Bill of Sale, in the form of Annex B
to the applicable Schedule, transferring title to the
Equipment to Lessor, (iii) evidence of insurance which
complies with the requirements of Section X, and (iv)
such other documents as Lessor may reasonably request.
Simultaneously with the execution of the Bill of Sale,
Lessee shall also execute a Certificate of Acceptance,
in the form of Annex C to the applicable Schedule,
covering all of the Equipment described in the Bill of
Sale.
2. Section VI(a) shall be deleted and the following
substituted in its stead:
(a) The parties acknowledge that this is a
sale/leaseback transaction and the Equipment is in
Lessee's possession as of the Lease Commencement
Date.
3. Section VII of the Lease is amended by adding the
following as the third sentence in subsection (a):
Lessee agrees that upon return of the Equipment,
it will be in good condition and working order, giving
consideration to reasonable wear and tear and the age
of the Equipment. Lessee shall, if requested by Lessor
and if reasonably possible, obtain a service report
from the manufacturer attesting to such condition.
4. Each reference contained in this Agreement to:
(a) "Adverse Environmental Condition" shall refer to
(i) the existence or the continuation of the existence,
of an Environmental Emission (including, without
limitation, a sudden or non-sudden accidental or
non-accidental Environmental Emission), of, or exposure
to, any substance, chemical, material, pollutant,
Contaminant, odor or audible noise or other release or
emission in, into or onto the environment (including,
without limitation, the air, ground, water or any
surface) at, in, by, from or related to any Equipment
from the time it leaves the Supplier's possession for
delivery to lessee until the time it is delivered to
Lessor, (ii) the environmental aspect of the
transportation, storage, treatment or disposal of
materials in connection with the operation of any
Equipment by Lessee or Lessee's agents or (iii) the
violation, or alleged violation by Lessee of any
statutes, ordinances, orders, rules regulations,
permits or licenses of, by or from any governmental
authority, agency or court relating to environmental
matters connected with any Equipment.
(b) "Affiliate" shall refer, with respect to any given
Person, to any Person that directly or indirectly
through one or more intermediaries, controls, or is
controlled by, or is under common control with, such
Person.
(c) "Contaminant" shall refer to those substances
which are regulated by or form the basis of liability
under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls
("PCBs"), and radioactive substances, or other material
or substance which has in the past or could in the
future constitute a health, safety or environmental
hazard to any Person, property or natural resources.
(d) "Environmental Claim" shall refer to any
accusation, allegation, notice of violation, claim,
demand, abatement or other order on direction
(conditional or otherwise) by any governmental
authority or any Person for person injury (including
sickness, disease or death), tangible or intangible
property damage, damage to the environment or other
adverse effects on the environment, or for fines,
penalties or restrictions, resulting from or based upon
any Adverse Environmental Condition.
(e) "Environmental Emission" shall refer to any actual
or threatened release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge,
dispersal, leaching or migration into the indoor or
outdoor environment, or into or out of any of the
Equipment, including, without limitation, the movement
of any Contaminant or other substance through or in the
air, soil, surface water, groundwater or property.
(f) "Environmental Law" shall mean any federal,
foreign, state or local law, rule or regulation
pertaining to the protection of the environment,
including, but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act
("CERCLA") (42 U.S.C. Section 9601 et seq.), the
Hazardous Material Transportation Act (49 U.S.C.
Section 1801 et seq.), the Federal Water Pollution
Control Act (33 U.S.C. Section 1251 et seq.), the
Resource Conversation and Recovery Act (42 U.S.C.
Section 6901 et seq.), the Clean Air Act (42 U.S.C.
Section 7401 et seq.), the Toxic Substances Control Act
(15 U.S.C. Section 2601 et seq.), the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C.
Section 1361 et seq.), and the Occupational Safety and
Health Act (19 U.S.C. section 651 et seq.), as these
laws have been amended or supplemented, and any
analogous foreign, federal, state or local statutes,
and the regulation promulgated pursuant thereto.
(g) "Environmental Loss" shall mean any loss, cost,
damage, liability, deficiency, fine, penalty or expense
(including without limitation, reasonable attorneys'
fees, engineering and other professional or export
fees), investigation, removal, cleanup and remedial
costs (voluntarily or involuntarily incurred) and
damages to, loss of the use of or decrease in value of
the Equipment arising out of or related to any Adverse
Environmental Condition.
(h) "Person" shall include any individual,
partnership, corporation, trust, unincorporated
organization, government or department or agency
thereof and any other entity.
5. Lessee shall fully and promptly pay, perform,
discharge, defend, indemnify and hold harmless Lessor and
its Affiliates, successors and assigns, directors, officers,
employees and agents from and against any Environmental
Claim or Environmental Loss. Defense and indemnification
under this Section is conditioned upon Lessor giving Lessee
timely written notice of any claim against which Lessor
wishes to be indemnified hereunder (unless Lessee learns of
any such claim from a third party, or unless Lessor does not
learn of such claim until such time as Lessor, acting
prudently on its own behalf, would be precluded from
defending by applicable law or rules), and Lessor giving
Lessee necessary and appropriate information and assistance
in the defense of same. Lessee's obligation to pay or
reimburse reasonable fees of counsel selected by Lessor to
defend any such claim shall be conditioned upon Lessee's
approval of such counsel, which approval shall not be
unreasonably withheld or delayed. Lessor shall provide
Lessee with periodic status reports on the defense or
settlement of such claim, upon Lessee's reasonable request,
and Lessor shall seek Lessee's consent to a proposed
settlement of a claim, it shall advise Lessor of its
specific objections to the proposed settlement and shall
identify with particularity the terms, if any, upon which it
would consent to a settlement of the claim. If Lessor
settles any such claim without Lessee's consent and Lessee
objects to indemnifying Lessor for such settlement, then
Lessor and Lessee agree to submit the question of the
reasonableness of the settlement to binding arbitration. In
such arbitration, the arbitrator shall be jointly selected
by the parties (or, if they cannot agree on an arbitrator,
one shall be selected according to the rules of the American
Arbitration Association), and the arbitrator shall determine
to what extent, if any, Lessee shall indemnify Lessor for
both the settlement and any attorneys' fees incurred in
connection with the defense and settlement of the claim.
The decision of the arbitrator shall be final and binding
upon both parties, and neither party shall seek recourse to
a court of law or other authorities to appeal for revision
of such decision or any other ruling of the arbitrator. The
cost of the arbitration shall be borne by both parties in
equal amounts.
6. ADDITIONS AND ALTERATIONS. Subject to the conditions
set out in this paragraph, Lessor hereby agrees, if so
requested by Lessee, to purchase alterations, additions or
Features for the Equipment and lease them to Lessee under
the same terms and conditions and with the same expiration
date of the Initial Term as the applicable Equipment
Schedule, ad at a periodic Rental Payment that shall be
mutually satisfactory to Lessor and Lessee. Lessor's
obligation to purchase and lease such alterations, additions
or Features shall be conditioned on the following: no
default hereunder by Lessee shall have occurred and be
continuing; there shall have been no material adverse change
(as determined by Lessor in its reasonable exercise of
business judgment) in Lessee's financial condition or
business prospects from the Commencement Date of the
applicable Schedule; and such alterations, additions or
Features shall be acceptable for acquisition and lease under
Lessor's then standard business practices. Lessee may
obtain financing for such alterations, additions or Features
from third parties provided that (i) such alterations,
additions or Features can be undone or removed without
damaging or impairing the functionality, utility or value of
the Equipment as compared to Equipment on which such
alterations, additions or Features had never been installed,
and (ii) such financing shall not in any event create a
security interest in, or lien or other encumbrance on,
Lessor's Equipment.
7. EARLY PURCHASE OPTION:
(a) Provided that the Lease has not been earlier
terminated and provided further that Lessee is not in
default under the Lease or any other agreement between
Lessor and Lessee, Lessee may, UPON AT LEAST 30 DAYS
BUT NO MORE THAN 270 DAYS PRIOR WRITTEN NOTICE TO
LESSOR OR LESSEE'S IRREVOCABLE ELECTION TO EXERCISE
SUCH OPTION, purchase all (but not less than all) of
the Equipment listed and described in this Schedule on
the rent payment date (the "Early Purchase Date") which
is 60 months from the Basic Term Commencement
Date of the Schedule for a price equal to $
1,448,887.24 (the "FMV Early Option Price"), plus
all applicable sales taxes on an AS IS BASIS. Lessor
and Lessee agree that the FMV Early Option Price is a
reasonable prediction of the Fair Market Value (as such
term is defined in Section XIX(b) hereof) of the
Equipment at the time the option is exercisable.
Lessor and Lessee agree that if Lessee makes any
non-severable improvement to the Equipment which is not
leased by Lessor to Lessee and which increases the
value of the Equipment and is not required or permitted
by Sections VII or XI of the Lease prior to lease
expiration, then at the time of such option being
exercised, Lessor and Lessee shall adjust the purchase
price to reflect any addition to the price anticipated
to result from such improvement. (The purchase option
granted by this subsection shall be referred to herein
as the "Early Purchase Option".)
(b) If Lessee exercises its Early Purchase Option with
respect to the Equipment leased hereunder, then on the
Early Purchase Option Date, Lessee shall pay to Lessor
any Rent and other sums due and unpaid on the Early
Purchase Option Date and Lessee shall pay the FMV Early
Option Price, plus all applicable sales taxes, to
Lessor in cash.
Except as expressly modified hereby, all terms and provisions of
the Agreement shall remain in full force and effect. This
Schedule is not binding or effective with respect to the
Agreement or Equipment until executed on behalf of Lessor and
Lessee by authorized representatives of Lessor and Lessee,
respectively.
IN WITNESS WHEREOF, Lessee and Lessor have caused this
Schedule to be executed by their duly authorized representatives
as of the date first above written.
LESSEE: LESSOR:
NATIONAL SEMICONDUCTOR GENERAL ELECTRIC CAPITAL
CORPORATION CORPORATION
By:_________________________________ By:__________________________________
______ ______
____________________________________ _____________________________________
______ ______
(Typed or printed name and (Typed or printed name and
title) title)
ELECTRONIC AND TEST EQUIPMENT SCHEDULE
SCHEDULE NO. 001
DATED THIS DECEMBER 13, 1994
TO MASTER LEASE AGREEMENT
DATED AS OF DECEMBER 13, 1994
Lessor & Mailing Address: Lessee & Mailing Address:
General Electric Capital National Semiconductor
Corporation Corporation
2200 Powell Street, Suite 600 2900 Semiconductor Drive
Emeryville, CA 94608 Santa Clara, CA 95052
Capitalized terms not defined shall have the meanings assigned to
them in the Master Lease Agreement identified above ("Agreement";
said Agreement and this Schedule being collectively referred to
as "Lease").
A. Equipment
Pursuant to the terms of the Lease, Lessor agrees to acquire
and lease to Lessee the Equipment listed on Annex A attached
hereto and made a part hereof.
B. Financial Terms
1. Advance Rent (if any): $15,919.72
2. Capitalized Lessor's Cost: $1,103,933.71
3. Basic Term Lease Rate Factor: Mons. 1-36 1.44209,
Mons. 37-72 1.76223
4. Daily Lease Rate Factor: Mons. 1-36 .04807, Mons.
37-72 .05874
5. Basic Term (No. of Months): 72
6. Basic Term Commencement Date: 01/03/95
7. Equipment Location: 333 Western Avenue, South
Portland, ME
8. Lessee Federal Tax ID No.: 952095071
9. Last Delivery Date:
10. First Termination Date: Sixty (60) months after
the Basic Term Commence Date.
C. Tax Benefits
Depreciation Deductions:
a. Depreciation Method (check one):
X The 200% declining balance method, switching to
straight line method for the 1st taxable year for which
using the straight line method with respect to the adjusted
basis as of the beginning of such year will yield a larger
allowance; OR
____ The method determined by applying to the unadjusted
basis the applicable percentages set forth in Section
168(b)(1) of the Code, as in effect prior to the adoption of
the Tax Reform Act of 1986.
b. Recovery Period: Five Years
c. Basis: 100% of Capitalized Lessor's Cost.
D. Rent
1. Interim Rent. For the period from and including the
Lease Commencement Date to the Basic Term Commencement
Date ("Interim Period"), Lessee shall pay as rent
("Interim Rent") for each unit of Equipment, an amount
equal to (a) the product of the "Prime Rate" as
published in the "Money Rates" column of the Wall
Street Journal, Western Edition, on the business day
preceding the Acceptance Date, times the Capitalized
Lessor's Cost of such unit times the number of days in
the Interim Period, divided by (b) 360. Interim Rent
shall be on 12/13/94 .
2. Basic Term Rent. Commencing on 01/03/95
and on the same day of each month thereafter
(each, a "Rent Payment Date") during the Basic Term,
Lessee shall pay as rent ("Basic Term Rent") the
product of the Basic Term Lease Rate Factor times the
Capitalized Lessor's Cost of all Equipment on this
Schedule.
3. [Deleted]
E. Insurance
1. Public Liability: $1,000,000 total liability per
occurrence.
2. Casualty and Property Damage: An amount equal to the
higher of the Stipulated Loss Value or the full
replacement cost of the Equipment.
F. Modifications and Additions to Lease
For purposes of this Schedule only, the Agreement is amended
as follows:
1. Section I(b) of the Agreement is hereby deleted in its
entirety and the following substituted in its stead:
(b) The obligation of Lessor to purchase the Equipment
from Lessee and to lease the same to Lessee shall be
subject to receipt by Lessor, on or prior to the
earlier of the Lease Commence Date or Last Delivery
Date therefor, of each of the following documents in
form and substance satisfactory to Lessor: (i) a
Schedule relating to the Equipment then to be leased
hereunder, (ii) a Bill of Sale, in the form of Annex B
to the applicable schedule, transferring title to the
Equipment to Lessor, (iii) evidence of insurance which
complies with the requirements of Section X, and (iv)
such other documents as Lessor may reasonably request.
Simultaneously with the execution of the Bill of Sale,
Lessee shall also execute a Certificate of Acceptance,
in the form of Annex C to the applicable Schedule,
covering all of the Equipment described in the Bill of
Sale.
2. Section VI(a) shall be deleted and the following
substituted in its stead:
(a) The parties acknowledge that this is a
sale/leaseback transaction and the Equipment is in
Lessee's possession as of the Lease Commencement
Date.
3. Section VII of the Lease is amended by adding the
following as the third sentence in subsection (a):
Lessee agrees that upon return of the Equipment,
it will be in good condition and working order, giving
consideration to reasonable wear and tear and the age
of the Equipment. Lessee shall, if requested by Lessor
and if reasonably possible, obtain a service report
from the manufacturer attesting to such condition.
4. Each reference contained in this Agreement to:
(a) "Adverse Environmental Condition" shall refer to
(i) the existence or the continuation of the existence,
of an Environmental Emission (including, without
limitation, a sudden or non-sudden accidental or
non-accidental Environmental Emission), of, or exposure
to, any substance, chemical, material, pollutant,
Contaminant, odor or audible noise or other release or
emission in, into or onto the environment (including,
without limitation, the air, ground, water or any
surface) at, in, by, from or related to any Equipment
from the time it leaves the Supplier's possession for
delivery to lessee until the time it is delivered to
Lessor, (ii) the environmental aspect of the
transportation, storage, treatment or disposal of
materials in connection with the operation of any
Equipment by Lessee or Lessee's agents or (iii) the
violation, or alleged violation by Lessee of any
statutes, ordinances, orders, rules regulations,
permits or licenses of, by or from any governmental
authority, agency or court relating to environmental
matters connected with any Equipment.
(b) "Affiliate" shall refer, with respect to any given
Person, to any Person that directly or indirectly
through one or more intermediaries, controls, or is
controlled by, or is under common control with, such
Person.
(c) "Contaminant" shall refer to those substances
which are regulated by or form the basis of liability
under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls
("PCBs"), and radioactive substances, or other material
or substance which has in the past or could in the
future constitute a health, safety or environmental
hazard to any Person, property or natural resources.
(d) "Environmental Claim" shall refer to any
accusation, allegation, notice of violation, claim,
demand, abatement or other order on direction
(conditional or otherwise) by any governmental
authority or any Person for person injury (including
sickness, disease or death), tangible or intangible
property damage, damage to the environment or other
adverse effects on the environment, or for fines,
penalties or restrictions, resulting from or based upon
any Adverse Environmental Condition.
(e) "Environmental Emission" shall refer to any actual
or threatened release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge,
dispersal, leaching or migration into the indoor or
outdoor environment, or into or out of any of the
Equipment, including, without limitation, the movement
of any Contaminant or other substance through or in the
air, soil, surface water, groundwater or property.
(f) "Environmental Law" shall mean any federal,
foreign, state or local law, rule or regulation
pertaining to the protection of the environment,
including, but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act
("CERCLA") (42 U.S.C. Section 9601 et seq.), the
Hazardous Material Transportation Act (49 U.S.C.
Section 1801 et seq.), the Federal Water Pollution
Control Act (33 U.S.C. Section 1251 et seq.), the
Resource Conversation and Recovery Act (42 U.S.C.
Section 6901 et seq.), the Clean Air Act (42 U.S.C.
Section 7401 et seq.), the Toxic Substances Control Act
(15 U.S.C. Section 2601 et seq.), the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C.
Section 1361 et seq.), and the Occupational Safety and
Health Act (19 U.S.C. section 651 et seq.), as these
laws have been amended or supplemented, and any
analogous foreign, federal, state or local statutes,
and the regulation promulgated pursuant thereto.
(g) "Environmental Loss" shall mean any loss, cost,
damage, liability, deficiency, fine, penalty or expense
(including without limitation, reasonable attorneys'
fees, engineering and other professional or export
fees), investigation, removal, cleanup and remedial
costs (voluntarily or involuntarily incurred) and
damages to, loss of the use of or decrease in value of
the Equipment arising out of or related to any Adverse
Environmental Condition.
(h) "Person" shall include any individual,
partnership, corporation, trust, unincorporated
organization, government or department or agency
thereof and any other entity.
5. Lessee shall fully and promptly pay, perform, discharge, defend,
indemnify and hold harmless Lessor and its Affiliates, successors and
assigns, directors, officers, employees and agents from and against any
Environmental Claim or Environmental Loss. Defense and indemnification
under this Section is conditioned upon Lessor giving Lessee timely
written notice of any claim against which Lessor wishes to be
indemnified hereunder (unless Lessee learns of any such claim from a
third party, or unless Lessor does not learn of such claim until such
time as Lessor, acting prudently on its own behalf, would be precluded
from defending by applicable law or rules), and Lessor giving Lessee
necessary and appropriate information and assistance in the defense of
same. Lessee's obligation to pay or reimburse reasonable fees of
counsel selected by Lessor to defend any such claim shall be conditioned
upon Lessee'' approval of such counsel, which approval shall not be
unreasonably withheld or delayed. Lessor shall provide Lessee with
periodic status reports on the defense or settlement of such claim, upon
Lessee's reasonable request, and Lessor shall seek Lessee's consent to a
proposed settlement of a claim, it shall advise Lessor of its specific
objections to the proposed settlement and shall identify with
particularity the terms, if any, upon which it would consent to a
settlement of the claim. If Lessor settles any such claim without
Lessee's consent and Lessee objects to indemnifying Lessor for such
settlement, then Lessor and Lessee agree to submit the question of the
reasonableness of the settlement to binding arbitration. In such
arbitration, the arbitrator shall be jointly selected by the parties
(or, if they cannot agree on an arbitrator, one shall be selected
according to the rules of the American Arbitration Association), and the
arbitrator shall determine to what extent, if any, Lessee shall
indemnify Lessor for both the settlement and any attorneys' fees
incurred in connection with the defense and settlement of the claim. The
decision of the arbitrator shall be final and binding
upon both parties, and neither party shall seek recourse to a court of
law or other authorities to appeal for revision of such decision or any
other ruling of the arbitrator. The cost of the arbitration shall be
borne by both parties in equal amounts.
6. ADDITIONS AND ALTERATIONS. Subject to the conditions
set out in this paragraph, Lessor hereby agrees, if so
requested by Lessee, to purchase alterations, additions or
Features for the Equipment and lease them to Lessee under
the same terms and conditions and with the same expiration
date of the Initial Term as the applicable Equipment
Schedule, and at a periodic Rental Payment that shall be
mutually satisfactory to Lessor and Lessee. Lessor's
obligation to purchase and lease such alterations, additions
or Features shall be conditioned on the following: no
default hereunder by Lessee shall have occurred and be
continuing; there shall have been no material adverse change
(as determined by Lessor in its reasonable exercise of
business judgment) in Lessee's financial condition or
business prospects from the Commencement Date of the
applicable Schedule; and such alterations, additions or
Features shall be acceptable for acquisition and lease under
Lessor's then standard business practices. Lessee may
obtain financing for such alterations, additions or Features
from third parties provided that (i) such alterations,
additions or Features can be undone or removed without
damaging or impairing the functionality, utility or value of
the Equipment as compared to Equipment on which such
alterations, additions or Features had never been installed,
and (ii) such
financing shall not in any event create a security interest
in, or lien or other encumbrance on, Lessor's Equipment.
7. EARLY PURCHASE OPTION:
(a) Provided that the Lease has not been earlier
terminated and provided further that Lessee is not in
default under the Lease or any other agreement between
Lessor and Lessee, Lessee may, UPON AT LEAST 30 DAYS
BUT NO MORE THAN 270 DAYS PRIOR WRITTEN NOTICE TO
LESSOR OR LESSEE'S IRREVOCABLE ELECTION TO EXERCISE
SUCH OPTION, purchase all (but not less than all) of
the Equipment listed and described in this Schedule on
the rent payment date (the "Early Purchase Date") which
is 60 months from the Basic Term Commencement
Date of the Schedule for a price equal to $
354,417.92 (the "FMV Early Option Price"), plus all
applicable sales taxes on an AS IS BASIS. Lessor and
Lessee agree that the FMV Early Option Price is a
reasonable prediction of the Fair Market Value (as such
term is defined in Section XIX(b) hereof) of the
Equipment at the time the option is exercisable.
Lessor and Lessee agree that if Lessee makes any
non-severable improvement to the Equipment which is not
leased by Lessor to Lessee and which increases the
value of the Equipment and is not required or permitted
by Sections VII or XI of the Lease prior to lease
expiration, then at the time of such option being
exercised, Lessor and Lessee shall adjust the purchase
price to reflect any addition to the price anticipated
to result from such improvement. (The purchase option
granted by this subsection shall be referred to herein
as the "Early Purchase Option".)
(b) If Lessee exercises its Early Purchase Option with
respect to the Equipment leased hereunder, then on the
Early Purchase Option Date, Lessee shall pay to Lessor
any Rent and other sums due and unpaid on the Early
Purchase Option Date and Lessee shall pay the FMV Early
Option Price, plus all applicable sales taxes, to
Lessor in cash.
Except as expressly modified hereby, all terms and provisions of
the Agreement shall remain in full force and effect. This
Schedule is not binding or effective with respect to the
Agreement or Equipment until executed on behalf of Lessor and
Lessee by authorized representatives of Lessor and Lessee,
respectively.
IN WITNESS WHEREOF, Lessee and Lessor have caused this
Schedule to be executed by their duly authorized representatives
as of the date first above written.
LESSEE: LESSOR:
NATIONAL SEMICONDUCTOR GENERAL ELECTRIC CAPITAL
CORPORATION CORPORATION
By:______________________________ By:____________________________
_______ _______
_________________________________ _______________________________
_______ _______
(Typed or printed name and (Typed or printed name and
title) title)
ADDENDUM NO, 01
TO SCHEDULE NO. 001,002,003,004,005,006,007&008
TO
MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
RETURN CONDITIONS - ELECTRONICS EQUIPMENT
In addition to the provisions provided for in Section XI of
the Lease, and provided that the Lessee has not elected its
option to purchase the Equipment, Lessee shall, at its expense:
(A) Upon the request of Lessor, Lessee shall no later than
180 days prior to the expiration or other termination of the
least provide:
1. a detailed inventory of the Equipment (including
the model and serial number of each major component thereof),
including, without limitation, all internal circuit boards,
module boards, and software features;
2. a complete and current set of all manuals, blue
prints, process flow diagrams, equipment configuration diagrams,
maintenance records and other data reasonably requested by Lessor
concerning the configuration and operation of the Equipment; and
(B) Upon the request of Lessor, Lessee shall, not later
than 120 days prior to the expiration or other termination of the
Lease make the Equipment available for on-site operational
inspection by persons designated by the Lessor who shall be duly
qualified to inspect the Equipment in its operational
environment.
(C) All Equipment shall be cleaned and treated with respect
to rust, corrosion and appearance in accordance with
manufacturer's recommendations and consistent with the best
practices of dealers in used equipment similar to the Equipment;
shall have no Lessee installed markings of labels which are not
necessary for the operation, maintenance or repair of the
Equipment, and shall be in compliance with all applicable
government laws, rules and regulations.
(D) The Equipment shall be de-installed and packed in
accordance with manufacturer's recommendations. Without
limitation, all internal fluids will either be drained and
disposed of or filled and secured in accordance with
manufacturer's recommendations and applicable government laws,
rules and regulations.
(E) The Equipment will be transported in accordance with
manufacturer's recommendations and applicable government laws,
rules and regulations to not more than one individual location
within the continental United States selected by Lessor.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL NATIONAL SEMICONDUCTOR
CORPORATION CORPORATION
By:__________________________ By:_________________________
ANNEX A
TO
SCHEDULE NO. 001
TO MASTER LEASE AGREEMENT
DATED AS OF
DESCRIPTION OF EQUIPMENT
INVOICE
VENDOR NAME # INV. DATE EQUIPMENT COST
- ------------- --------- --------- ---------------------------------------------------------- ---------------
Opal 93209 11/28/93 Opal 7830 CD-SEM and attachments and accessories described $ 1,098,.091.00
more fully on invoice #93209 attached hereto and made a
part hereof.
Freight: $ 1,892.71
Neslab 399823 6/22/94 Spare Parts $ 2,700.00
Opal 94028 5/18/94 Vibration, EMI and acoustic survey $ 1,250.00
INVOICE COST: $1,103,933.71
Initials: -------------------------------------- --------------------------------------
Lessor Lessee
ANNEX B
TO
SCHEDULE NO. 001
TO MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
BILL OF SALE
National Semiconductor Corporation (the "Seller"), in
consideration of the sum of One Million One Hundred Three
Thousand Nine Hundred Thirty-three Dollars and Seventy-one Cents
Dollars ($1,103,933.71) plus sales taxes in the amount of zero
Dollars ($00.00) (if exemption from sales tax is claimed, an
exemption certificate must be furnished to Buyer herewith), paid
by General Electric Capital Corporation (the "Buyer"), receipt of
which is acknowledged, hereby grants, sells, assigns, transfers
and delivers to Buyer the equipment (the "Equipment") described
in the above schedule (said schedule and related lease being
collectively referred to as "Lease"), along with whatever claims
and rights Seller may have against the manufacturer and/or
supplier of the Equipment (the "Supplier"), including but not
limited to all warranties and representations. At Buyer's
request, Seller will cause Supplier to execute the attached
Acknowledgment.
Buyer is purchasing the Equipment for leasing back to Seller
pursuant to the Lease. Seller represents and warrants to Buyer
that (1) Buyer will acquire by the terms of this Bill of Sale
good title to the Equipment free from all liens and encumbrances
whatsoever; (2) Seller has the right to sell the Equipment; and
(3) the Equipment has been delivered to Seller in good order and
condition, and conforms to the specifications, requirements and
standards applicable thereto; and (4) the equipment has been
accurately labeled, consistent with the requirements of 40 CFR
part 82 Subpart E, with respect to products manufactured with a
controlled (ozone-depleting) substance.
Seller agrees to save and hold harmless Buyer from and against
any and all federal, state, municipal and local license fees and
taxes of any kind or nature, including, without limiting the
generality of the foregoing, any and all excise, personal
property, use and sales taxes, and from and against any and all
liabilities, obligations losses, damages, penalties, claims,
actions and suits resulting therefrom and imposed upon, incurred
by or asserted against Buyer as a consequence of the sale of the
Equipment to Buyer.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale this
thirteenth day of December ,1994.
- ----------- ------------
SELLER:
National Semiconductor Corporation
By:_______________________________
Title:____________________________
ANNEX C
TO
SCHEDULE NO. 001
TO MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
CERTIFICATE OF ACCEPTANCE
To: General Electric Capital Corporation ("Lessor")
Pursuant to the provisions of the above schedule and lease
(collectively, the "Lease"), Lessee hereby certifies and warrants
that (a) all Equipment listed in the related Bill of Sale is in
good condition and appearance, installed (if applicable) and in
working order; and (b) Lessee accepts the Equipment for all
purposes of the Lease, the purchase documents and all attendant
documents.
Lessee does further certify that as of the date hereof (i)
Lessee is not in default under the Lease; (ii) the
representations and warranties made by Lessee pursuant to or
under the Lease are true and correct on the date hereof and (iii)
Lessee has reviewed and approves of the purchase documents for
the Equipment, if any.
DESCRIPTION OF EQUIPMENT
Manufacturer Serial Type and Number of Cost Per
Numbers Model of Units Unit
Equipment
See Annex A Attached hereto and Made A Part Hereof
_____________________________
Authorized Representative
Dated: December 13, 1994
--------------------------
ANNEX D
TO
SCHEDULE NO 008
TO MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
STIPULATED LOSS AND TERMINATION VALUE TABLE*
TERMINATION VALUE STIPULATED LOSS VALUE
RENTAL PERCENTAGE PERCENTAGE
- ------------- ---------------------- --------------------------
1 103.788 107.923
2 103.070 107.272
3 102.343 106.613
4 101.602 105.940
5 100.848 105.254
6 100.081 104.554
7 99.300 103.840
8 98.510 103.118
9 97.707 102.383
10 96.890 101.633
11 96.064 100.875
12 95.225 100.103
13 94.372 99.318
14 93.510 98.524
15 92.640 97.721
16 91.760 96.909
17 90.871 96.087
18 89.972 95.256
19 89.064 94.415
20 88.147 93.566
21 87.220 92.707
22 86.284 91.838
23 85.339 90.961
24 84.384 90.073
25 83.420 89.177
26 82.447 88.271
27 81.464 87.356
28 80.475 86.434
29 79.478 85.505
30 78.474 84.569
31 77.463 83.625
32 76.443 82.673
33 75.416 81.713
34 74.381 80.746
35 73.337 79.770
36 72.286 78.786
37 71.225 77.793
38 69.832 76.467
39 68.427 75.130
40 67.013 73.783
41 65.590 72.428
42 64.159 71.065
43 62.719 69.692
44 61.266 68.307
45 59.805 66.913
TERMINATION VALUE STIPULATED LOSS VALUE
RENTAL PERCENTAGE PERCENTAGE
- ------------- ---------------------- --------------------------
46 58.335 65.510
47 56.852 64.095
48 55.360 62.671
49 53.859 61.238
50 52.346 59.792
51 50.820 58.333
52 49.286 56.867
53 47.746 55.394
54 46.198 53.914
55 44.643 52.426
56 43.075 50.926
57 41.499 49.418
PAYMENT AUTHORIZATION
General Electric Capital Corporation
2200 Powell Street Suite 600
Emeryville, CA 94608
You are hereby authorized to pay the proceeds from our
sale to you of certain Equipment as evidenced on the attached
Bill of Sale to the following parties in the amount(s) designated
below.
National Semiconductor $1,103,933.71
Corporation
2900 Semiconductor Drive
Santa Clara, CA 95052-8090
For reimbursement of funds
previously paid to various
vendors for equipment plus
attachments and accessories
including labor described on
Annex A attached hereto and
made a part hereof.
Very truly yours,
National Semiconductor Corporation
By:_______________________________
Title:____________________________
Date:_____________________________
CERTIFICATE CONCERNING
PAYMENT OF PERSONAL PROPERTY TAXES
To: General Electric Capital Corporation
To insure Lessee's compliance with the provisions of a
Master Lease Agreement dated as of December 13, 1994 (the
"Lease") by and between the undersigned as Lessee and General
Electric Capital Corporation as Lessor, Lessee hereby agrees to
one of the following options with respect to the payment of
personal property taxes on the Equipment described in Annex A to
the Lease, such agreement to be conclusively evidenced by the
initials and signature of an authorized agent of Lessee in the
appropriate spaces provided below:
Please choose one of the options below by placing an "X" in the
appropriate box and initialing where indicated. Initial ONLY ONE
Choice of Option
OPTION 1 Lessee's Initials:
(Applicable in Jurisdictions Requiring Lessor to List Equipment):
Lessee agrees that it will not list any of such Equipment for
property tax purposes or report any property tax assessed against
such Equipment until otherwise directed in writing by Lessor.
Upon receipt of any property tax bill pertaining to such
Equipment from the appropriate taxing authority, Lessor will pay
such tax and will invoice Lessee for the expense. Upon receipt
of such invoice, Lessee will promptly reimburse Lessor for such
expense;
OPTION 2 Lessee's Initials:
(Applicable in Jurisdictions Permitting Lessee to List
Equipment): Lessee agrees that it will (a) list all such
Equipment, (b) report all property taxes assessed against such
Equipment and (c) pay all such taxes when due directly to the
appropriate taxing authority until Lessor shall otherwise direct
in writing.
LESSEE:
National Semiconductor Corporation
By:_______________________________
Title:____________________________
Date:_____________________________
ELECTRONIC AND TEST EQUIPMENT SCHEDULE
SCHEDULE NO. 002
DATED THIS DECEMBER 13, 1994
TO MASTER LEASE AGREEMENT
DATED AS OF DECEMBER 13, 1994
Lessor & Mailing Address: Lessee & Mailing Address:
General Electric Capital National Semiconductor
Corporation Corporation
2200 Powell Street, Suite 600 2900 Semiconductor Drive
Emeryville, CA 94608 Santa Clara, CA 95052
Capitalized terms not defined shall have the meanings assigned to
them in the Master Lease Agreement identified above ("Agreement";
said Agreement and this Schedule being collectively referred to
as "Lease").
A. Equipment
Pursuant to the terms of the Lease, Lessor agrees to acquire
and lease to Lessee the Equipment listed on Annex A attached
hereto and made a part hereof.
B. Financial Terms
1. Advance Rent (if any): $36,202.71
2. Capitalized Lessor's Cost: $2,515,037.57
3. Basic Term Lease Rate Factor: Mons. 1-36 1.43945,
Mons. 37-72 1.75901
4. Daily Lease Rate Factor: Mons. 1-36 .04798, Mons.
37-72 .05863
5. Basic Term (No. of Months): 72
6. Basic Term Commencement Date: 01/03/95
7. Equipment Location: 333 Western Avenue, South
Portland, ME
8. Lessee Federal Tax ID No.: 952095071
9. Last Delivery Date:
10. First Termination Date: Sixty (60) months after
the Basic Term Commence Date.
C. Tax Benefits
Depreciation Deductions:
a. Depreciation Methods (check one):
X The 200% declining balance method, switching to
straight line method for the 1st taxable year for which
using the straight line method with respect to the adjusted
basis as of the beginning of such year will yield a larger
allowance; OR
____ The method determined by applying to the unadjusted
basis the applicable percentages set forth in Section
168(b)(1) of the Code, as in effect prior to the adoption of
the Tax Reform Act of 1986.
b. Recovery Period: Five Years
c. Basis: 100% of Capitalized Lessor's Cost.
D. Rent
1. Interim Rent. For the period from and including the
Lease Commencement Date to the Basic Term Commencement
Date ("Interim Period"), Lessee shall pay as rent
("Interim Rent") for each unit of Equipment, an amount
equal to (a) the product of the "Prime Rate" as
published in the "Money Rates" column of the Wall
Street Journal, Western Edition, on the business day
preceding the Acceptance Date, times the Capitalized
Lessor's Cost of such unit times the number of days in
the Interim Period, divided by (b) 360. Interim Rent
shall be due on 12/13/94 .
2. Basic Term Rent. Commencing on 01/03/95
and on the same day of each month thereafter
(each, a "Rent Payment Date") during the Basic Term,
Lessee shall pay as rent ("Basic Term Rent") the
product of the Basic Term Lease Rate Factor times the
Capitalized Lessor's Cost of all Equipment on this
Schedule.
3. [Deleted]
E. Insurance
1. Public Liability: $1,000,000 total liability per
occurrence.
2. Casualty and Property Damage: An amount equal to the
higher of the Stipulated Loss Value or the full
replacement cost of the Equipment.
F. Modifications and Additions to Lease
For purposes of this Schedule only, the Agreement is amended
as follows:
1. Section I(b) of the Agreement is hereby deleted in its
entirety and the following substituted in its stead:
(b) The obligation of Lessor to purchase the Equipment
from Lessee and to lease the same to Lessee shall be
subject to receipt by Lessor, on or prior to the
earlier of the Lease Commence Date or Last Delivery
Date therefor, of each of the following documents in
form and substance satisfactory to Lessor: (i) a
Schedule relating to the Equipment then to be leased
hereunder, (ii) a Bill of Sale, in the form of Annex B
to the applicable Schedule, transferring title to the
Equipment to Lessor, (iii) evidence of insurance which
complies with the requirements of Section X, and (iv)
such other documents as Lessor may reasonably request.
Simultaneously with the execution of the Bill of Sale,
Lessee shall also execute a Certificate of Acceptance,
in the form of Annex C to the applicable Schedule,
covering all of the Equipment described in the Bill of
Sale.
2. Section VI(a) shall be deleted and the following
substituted in its stead:
(a) The parties acknowledge that this is a
sale/leaseback transaction and the Equipment is in
Lessee's possession as of the Lease Commencement Date.
3. Section VII of the Lease is amended by adding the
following as the third sentence in subsection (a):
Lessee agrees that upon return of the Equipment,
it will be in good condition and working order, giving
consideration to reasonable wear and tear and the age
of the Equipment. Lessee shall, if requested by Lessor
and if reasonably possible, obtain a service report
from the manufacturer attesting to such condition.
4. Each reference contained in this Agreement to:
(a) "Adverse Environmental Condition" shall refer to
(i) the existence or the continuation of the existence,
of an Environmental Emission (including, without
limitation, a sudden or non-sudden accidental or
non-accidental Environmental Emission), of, or exposure
to, any substance, chemical, material, pollutant,
Contaminant, odor or audible noise or other release or
emission in, into or onto the environment (including,
without limitation, the air, ground, water or any
surface) at, in, by, from or related to any Equipment
from the time it leaves the Supplier's possession for
delivery to lessee until the time it is delivered to
Lessor, (ii) the environmental aspect of the
transportation, storage, treatment or disposal of
materials in connection with the operation of any
Equipment by Lessee or Lessee's agents or (iii) the
violation, or alleged violation by Lessee of any
statutes, ordinances, orders, rules regulations,
permits or licenses of, by or from any governmental
authority, agency or court relating to environmental
matters connected with any Equipment.
(b) "Affiliate" shall refer, with respect to any given
Person, to any Person that directly or indirectly
through one or more intermediaries, controls, or is
controlled by, or is under common control with, such
Person.
(c) "Contaminant" shall refer to those substances
which are regulated by or form the basis of liability
under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls
("PBCs"), and radioactive substances, or other material
or substance which has in the past or could in the
future constitute a health, safety or environmental
hazard to any Person, property or natural resources.
(d) "Environmental Claim" shall refer to any
accusation, allegation, notice of violation, claim,
demand, abatement or other order on direction
(conditional or otherwise) by any governmental
authority or any Person for person injury (including
sickness, disease or death), tangible or intangible
property damage, damage to the environment or other
adverse effects on the environment, or for fines,
penalties or restrictions, resulting from or based upon
any Adverse Environmental Condition.
(e) "Environmental Emission" shall refer to any actual
or threatened release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge,
dispersal, leaching or migration into the indoor or
outdoor environment, or into or out of any of the
Equipment, including, without limitation, the movement
of any Contaminant or other substance through or in the
air, soil, surface water, groundwater or property.
(f) "Environmental Law" shall mean any federal,
foreign, state or local law, rule or regulation
pertaining to the protection of the environment,
including, but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act
("CERCLA") (42 U.S.C. Section 9601 et seq.), the
Hazardous Material Transportation Act (49 U.S.C.
Section 1801 et seq.), the Federal Water Pollution
Control Act (33 U.S.C. Section 1251 et seq.), the
Resource Conversation and Recovery Act (42 U.S.C.
Section 6901 et seq.), the Clean Air Act (42 U.S.C.
Section 7401 et seq.), the Toxic Substances Control Act
(15 U.S.C. Section 2601 et seq.), the Federal
Insecticide Fungicide, and Rodenticide Act (7 U.S.C.
Section 1361 et seq.), and the Occupational Safety and
Health Act (19 U.S.C. section 651 et seq.), as these
laws have been amended or supplemented, and any
analogous foreign, federal, state or local statutes,
and the regulation promulgated pursuant thereto.
(g) "Environmental Loss" shall mean any loss, cost,
damage, liability, deficiency, fine, penalty or expense
(including without limitation, reasonable attorneys'
fees, engineering and other professional or export
fees), investigation, removal, cleanup and remedial
costs (voluntarily or involuntarily incurred) and
damages to, loss of the use of or decrease in value of
the Equipment arising out of or related to any Adverse
Environmental Condition.
(h) "Person" shall include any individual,
partnership, corporation, trust, unincorporated
organization, government or department or agency
thereof and any other entity.
5. Lessee shall fully and promptly pay, perform,
discharge, defend, indemnify and hold harmless Lessor and
its Affiliates, successors and assigns, directors, officers,
employees and agents from and against any Environmental
Claim or Environmental Loss. Defense and indemnification
under this Section is conditioned upon Lessor giving Lessee
timely written notice of any claim against which Lessor
wishes to be indemnified hereunder (unless Lessee learns of
any such claim from a third party, or unless Lessor does not
learn of such claim until such time as Lessor, acting
prudently on its own behalf, would be precluded from
defending by applicable law or rules), and Lessor giving
Lessee necessary and appropriate information and assistance
in the defense of same. Lessee's obligation to pay or
reimburse reasonable fees of counsel selected by Lessor to
defend any such claim shall be conditioned upon Lessee''
approval of such counsel, which approval shall not be
unreasonably withheld or delayed. Lessor shall provide
Lessee with periodic status reports on the defense or
settlement of such claim, upon Lessee's reasonable request,
and Lessor shall seek Lessee's consent to a proposed
settlement of a claim, it shall advise Lessor of its
specific objections to the proposed settlement and shall
identify with particularity the terms, if any, upon which it
would consent to a settlement of the claim. If Lessor
settles any such claim without Lessee's consent and Lessee
objects to indemnifying Lessor for such settlement, then
Lessor and Lessee agree to submit the question of the
reasonableness of the settlement to binding arbitration. In
such arbitration, the arbitrator shall be jointly selected
by the parties (or, if they cannot agree on an arbitrator,
one shall be selected according to the rules of the American
Arbitration Association), and the arbitrator shall determine
to what extent, if any, Lessee shall indemnify Lessor for
both the settlement and any attorneys' fees incurred in
connection with the defense and settlement of the claim.
The decision of the arbitrator shall be final and binding
upon both parties, and neither party shall seek recourse to
a court of law or other authorities to appeal for revision
of such decision or any other ruling of the arbitrator. The
cost of the arbitration shall be borne by both parties in
equal amounts.
6. ADDITIONS AND ALTERATIONS. Subject to the conditions
set out in this paragraph, Lessor hereby agrees, if so
requested by Lessee, to purchase alterations, additions or
Features for the Equipment and lease them to Lessee under
the same terms and conditions and with the same expiration
date of the Initial Term as the applicable Equipment
Schedule, and at a periodic Rental Payment that shall be
mutually satisfactory to Lessor and Lessee. Lessor's
obligation to purchase and lease such alterations, additions
or Features shall be conditioned on the following: no
default hereunder by Lessee shall have occurred and be
continuing; there shall have been no material adverse change
(as determined by Lessor in its reasonable exercise of
business judgment) in Lessee's financial condition or
business prospects from the Commencement Date of the
applicable Schedule; and such alterations, additions or
Features shall be acceptable for acquisition and lease under
Lessor's then standard business practices. Lessee may
obtain financing for such alterations, additions or Features
from third parties provided that (i) such alterations,
additions or Features can be undone or removed without
damaging or impairing the functionality, utility or value of
the Equipment as compared to Equipment on which such
alterations, additions or Features had never been installed,
and (ii) such
financing shall not in any event create a security interest
in, or lien or other encumbrance on, Lessor's Equipment.
7. EARLY PURCHASE OPTION:
(a) Provided that the Lease has not been earlier
terminated and provided further that Lessee is not in
default under the Lease or any other agreement between
Lessor and Lessee, Lessee may, UPON AT LEAST 30 DAYS
BUT NO MORE THAN 270 DAYS PRIOR WRITTEN NOTICE TO
LESSOR OR LESSEE'S IRREVOCABLE ELECTION TO EXERCISE
SUCH OPTION, purchase all (but not less than all) of
the Equipment listed and described in this Schedule on
the rent payment date (the "Early Purchase Date") which
is 60 months from the Basic Term Commencement
Date of the Schedule for a price equal to $
812,432.59 (the "FMV Early Option Price"), plus all
applicable sales taxes on an AS IS BASIS. Lessor and
Lessee agree that the FMV Early Option Price is a
reasonable prediction of the Fair Market Value (as such
term is defined in Section XIX(b) hereof) of the
Equipment at the time the option is exercisable.
Lessor and Lessee agree that if Lessee makes any
non-severable improvement to the Equipment which is not
leased by Lessor to Lessee and which increases the
value of the Equipment and is not required or permitted
by Sections VII or XI of the Lease prior to lease
expiration, then at the time of such option being
exercised, Lessor and Lessee shall adjust the purchase
price to reflect any addition to the price anticipated
to result from such improvement. (The purchase option
granted by this subsection shall be referred to herein
as the "Early Purchase Option".)
(b) If Lessee exercises its Early Purchase Option with
respect to the Equipment leased hereunder, then on the
Early Purchase Option Date, Lessee shall pay to Lessor
any Rent and other sums due and unpaid on the Early
Purchase Option Date and Lessee shall pay the FMV Early
Option Price, plus all applicable sales taxes, to
Lessor in cash.
Except as expressly modified hereby, all terms and provisions of
the Agreement shall remain in full force and effect. This
Schedule is not binding or effective with respect to the
Agreement or Equipment until executed on behalf of Lessor and
Lessee by authorized representatives of Lessor and Lessee,
respectively.
IN WITNESS WHEREOF, Lessee and Lessor have caused this
Schedule to be executed by their duly authorized representatives
as of the date first above written.
LESSEE: LESSOR:
NATIONAL SEMICONDUCTOR GENERAL ELECTRIC CAPITAL
CORPORATION CORPORATION
By:____________________________ By:____________________________
_______________________________ _______________________________
(Typed or printed name and title) (Typed or printed name and title)
ADDENDUM NO, 01
TO SCHEDULE NO. 001,002,003,004,005,006,007&008
TO
MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
RETURN CONDITIONS - ELECTRONICS EQUIPMENT
In addition to the provisions provided for in Section XI of
the Lease, and provided that the Lessee has not elected its
option to purchase the Equipment, Lessee shall,. at its expense:
(A) Upon the request of Lessor, Lessee shall no later than
180 days prior to the expiration or other termination of the
lease provide:
1. a detailed inventory of the Equipment (including
the model and serial number of each major component thereof),
including, without limitation, all internal circuit boards,
module boards, and software features;
2. a complete and current set of all manuals, blue
prints, process flow diagram, equipment configuration diagrams,
maintenance records and other data reasonably requested by Lessor
concerning the configuration and operation of the Equipment; and
(B) Upon the request of Lessor, Lessee shall, not later
than 120 days prior to the expiration or other termination of the
Lease make the Equipment available for on-site operational
inspection by persons designated by the Lessor who shall be duly
qualified to inspect the Equipment in its operational
environment.
(C) All Equipment shall be cleaned and treated with respect
to rust, corrosion and appearance in accordance with
manufacturer's recommendations and consistent with the best
practices of dealers in used equipment similar to the Equipment;
shall have no Lessee installed markings of labels which are not
necessary for the operation, maintenance or repair of the
Equipment, and shall be in compliance with all applicable
government laws, rules and regulations.
(D) The Equipment shall be de-installed and packed in
accordance with manufacturer's recommendations. Without
limitation, all internal fluids will either be drained and
disposed of or filled and secured in accordance with
manufacturer's recommendations and applicable government laws,
rules and regulations.
(E) The Equipment will be transported in accordance with
manufacturer's recommendations and applicable government laws,
rules and regulations to not more than one individual location
within the continental United States selected by Lessor.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL NATIONAL SEMICONDUCTOR
CORPORATION CORPORATION
By:__________________________ By:_________________________
ANNEX A
TO
SCHEDULE NO. 002
TO MASTER LEASE AGREEMENT
DATED AS OF
DESCRIPTION OF EQUIPMENT
INVOICE INV.
VENDOR NAME # DATE EQUIPMENT COST
- ------------------------------------ --------- --------- ------------------------------------ ---------------
Integrated Solutions 320124 5/10/94 GCA 8500-003 Stepper 2142 G- Line
8500SE (NSC) $ 750,000.00
Freight: $ 1,200.00
Anderson DeBartolo Pan 41016 5/13/94 Professional Services $ 17,658.00
Anderson DeBartolo Pan 40915 4/29/94 Professional Services $ 1,962.00
Tylan General 66965 4/12/94 Misc. Repairs $ 1,775.00
Lam Research Corp 171405 9/15/93 TCP 9600 S/N#4058 $ 1,374,623.25
Matheson Elect. Products Group 16847 7/15/94 Auto-purge system for 8C13 for LAM
9600 and attachments and accessories
described more fully on invoice
16847 attached hereto and made a $ 63,263.25
part hereof. Freight $1,529.41
Vector Tech. 047741 10/4/93 ES-400 Base Unit, Type-7 Entry Kit,
ES-Series Elec Cont. Box Assbly $ 17,085.00
Semix Inc. 15536 2/9/93 Sog Spin Coater, Indexers Basic
repair parts kit, Cleaning and $ 285,122.00
consumable kit Freight $819.66
INVOICE COST: $2,515,037.57
Initials: ------------------------------ ---------------------------------
Lessor Lessee
ANNEX B
TO
SCHEDULE NO. 002
TO MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
BILL OF SALE
National Semiconductor Corporation (the "Seller"), in
consideration of the sum of Two Million Five Hundred Fifteen
Thousand Thirty-Seven Dollars and Fifty-seven Cents Dollars
($2,515,037.57) plus sales taxes in the amount of zero Dollars
($00.00) (if exemption from sales tax is claimed, an exemption
certificate must be furnished to Buyer herewith), paid by General
Electric Capital Corporation (the "Buyer"), receipt of which is
acknowledged, hereby grants, sells, assigns, transfers and
delivers to Buyer the equipment (the "Equipment") described in
the above schedule (said schedule and related lease being
collectively referred to as "Lease"), along with whatever claims
and rights Seller may have against the manufacturer and/or
supplier of the Equipment (the "Supplier"), including but not
limited to all warranties and representations. At Buyer's
request, Seller will cause Supplier to execute the attached
Acknowledgment.
Buyer is purchasing the Equipment for leasing back to Seller
pursuant to the Lease. Seller represents and warrants to Buyer
that (1) Buyer will acquire by the terms of this Bill of Sale
good title to the Equipment free from all liens and encumbrances
whatsoever; (2) Seller has the right to sell the Equipment; and
(3) the Equipment has been delivered to Seller in good order and
condition, and conforms to the specifications, requirements and
standards applicable thereto; and (4) the equipment has been
accurately labeled, consistent with the requirements of 40 CFR
part 82 Subpart E, with respect to products manufactured with a
controlled (ozone-depleting) substance.
Seller agrees to save and hold harmless Buyer from and against
any and all federal, state, municipal and local license fees and
taxes of any kind or nature, including, without limiting the
generality of the foregoing, any and all excise, personal
property, use and sales taxes, and from and against any and all
liabilities, obligations losses, damages, penalties, claims,
actions and suits resulting therefrom and imposed upon, incurred
by or asserted against Buyer as a consequence of the sale of the
Equipment to Buyer.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale this
thirteenth day of December ,1994.
SELLER:
National Semiconductor
Corporation
By:
---------------------------
Title: Assistant Treasurer
------------------------
ANNEX C
TO
SCHEDULE NO. 002
TO MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
CERTIFICATE OF ACCEPTANCE
To: General Electric Capital Corporation ("Lessor")
Pursuant to the provisions of the above schedule and lease
(collectively, the "Lease"), Lessee hereby certifies and warrants
that (a) all Equipment listed in the related Bill of Sale is in
good condition and appearance, installed (if applicable) and in
working order; and (b) Lessee accepts the Equipment for all
purposes of the Lease, the purchase documents and all attendant
documents.
Lessee does further certify that as of the date hereof (i)
Lessee is not in default under the Lease; (ii) the
representations and warranties made by Lessee pursuant to or
under the Lease are true and correct on the date hereof and (iii)
Lessee has reviewed and approves of the purchase documents for
the Equipment, if any.
DESCRIPTION OF EQUIPMENT
Manufacturer Serial Type and
Numbers Model of Number of Cost Per
Equipment Units Unit
See Annex A Attached hereto and Made A Part Hereof
--------------------------
Authorized Representative
Dated: December 13, 1994
-----------------------
ANNEX D
TO
SCHEDULE NO 002
TO MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
STIPULATED LOSS AND TERMINATION VALUE TABLE*
TERMINATION VALUE STIPULATED LOSS VALUE
RENTAL PERCENTAGE PERCENTAGE
- ------------- ---------------------- --------------------------
1 103.788 107.916
2 103.072 107.265
3 102.348 106.605
4 101.610 105.931
5 100.859 105.244
6 100.094 104.543
7 99.315 103.829
8 98.529 103.106
9 97.728 102.370
10 96.914 101.620
11 96.091 100.861
12 95.254 100.089
13 94.404 99.303
14 93.545 98.508
15 92.677 97.704
16 91.800 96.892
17 90.914 96.069
18 90.018 95.238
19 89.113 94.396
20 88.198 93.546
21 87.275 92.687
22 86.342 91.818
23 85.399 90.940
24 84.448 90.052
25 83.486 89.155
26 82.516 88.249
27 81.536 87.334
28 80.550 86.411
29 79.556 85.482
30 78.556 84.545
31 77.548 83.602
32 76.531 82.649
33 75.506 81.689
34 74.475 80.721
35 73.434 79.745
36 72.386 78.761
37 71.328 77.767
38 69.939 76.442
39 68.537 75.105
40 67.127 73.759
41 65.709 72.405
42 64.281 71.041
43 62.845 69.669
44 61.396 68.285
TERMINATION VALUE STIPULATED LOSS VALUE
RENTAL PERCENTAGE PERCENTAGE
- ------------- ---------------------- --------------------------
45 59.939 66.891
46 58.472 65.489
47 56.993 64.074
48 55.505 62.651
49 54.008 61.218
50 52.499 59.773
51 50.977 58.315
52 49.448 56.850
53 47.911 55.378
54 46.367 53.898
55 44.816 52.411
56 43.252 50.911
57 41.681 49.404
PAYMENT AUTHORIZATION
General Electric Capital Corporation
2200 Powell Street Suite 600
Emeryville, CA 94608
You are hereby authorized to pay the proceeds from our
sale to you of certain Equipment as evidenced on the attached
Bill of Sale to the following parties in the amount(s) designated
below.
National Semiconductor $2,515,037.57
Corporation
2900 Semiconductor Drive
Santa Clara, CA 95052-8090
For reimbursement of funds
previously paid to various
vendors for equipment plus
attachments and accessories
including labor described on
Annex A attached hereto and
made a part hereof.
Very truly yours,
National Semiconductor Corporation
By:
---------------------------------
Title: Assistant Treasurer
------------------------------
Date: December 13, 1994
-------------------------------
CERTIFICATE CONCERNING
PAYMENT OF PERSONAL PROPERTY TAXES
To: General Electric Capital Corporation
To insure Lessee's compliance with the provisions of a
Master Lease Agreement dated as of December 13, 1994 (the
"Lease") by and between the undersigned as Lessee and General
Electric Capital Corporation as Lessor, Lessee hereby agrees to
one of the following options with respect to the payment of
personal property taxes on the Equipment described in Annex A to
the Lease, such agreement to be conclusively evidenced by the
initials and signature of an authorized agent of Lessee in the
appropriate spaces provided below:
Please choose one of the options below by placing an "X" in the
appropriate box and initialing where indicated. Initial ONLY ONE
Choice of Option
OPTION 1 Lessee's Initials:
(Applicable in Jurisdictions Requiring Lessor to List Equipment):
Lessee agrees that it will not list any of such Equipment for
property tax purposes or report any property tax assessed against
such Equipment until otherwise directed in writing by Lessor.
Upon receipt of any property tax bill pertaining to such
Equipment from the appropriate taxing authority, Lessor will pay
such tax and will invoice Lessee for the expense. Upon receipt
of such invoice, Lessee will promptly reimburse Lessor for such
expense;
OPTION 2 Lessee's Initials:
(Applicable in Jurisdictions Permitting Lessee to List
Equipment): Lessee agrees that it will (a) list all such
Equipment, (b) report all property taxes assessed against such
Equipment and (c) pay all such taxes when due directly to the
appropriate taxing authority until Lessor shall otherwise direct
in writing.
LESSEE:
National Semiconductor Corporation
By:
-------------------------------
Title: Assistant Treasurer
----------------------------
Date: December 13, 1994
-----------------------------
ELECTRONIC AND TEST EQUIPMENT SCHEDULE
SCHEDULE NO. 003
DATED THIS DECEMBER 13, 1994
TO MASTER LEASE AGREEMENT
DATED AS OF DECEMBER 13, 1994
Lessor & Mailing Address: Lessee & Mailing Address:
General Electric Capital Corporation National Semiconductor Corporation
2200 Powell Street, Suite 600 2900 Semiconductor Drive
Emeryville, CA 94608 Santa Clara, CA 95052
Capitalized terms not defined herein shall have the meanings
assigned to them in the Master Lease Agreement identified above
("Agreement"; said Agreement and this Schedule being collectively
referred to as "Lease").
A. Equipment
Pursuant to the terms of the Lease, Lessor agrees to acquire
and lease to Lessee the Equipment listed on Annex A attached
hereto and made a part hereof.
B. Financial Terms
1. Advance Rent (if any): $15,531.46
2. Capitalized Lessor's Cost: $1,109,397.74
3. Basic Term Lease Rate Factor: Mons. 1-36 1.39999,
Mons. 37-72 1.71079
4. Daily Lease Rate Factor: Mons. 1-36 .04667, Mons.
37-72 .05703
5. Basic Term (No. of Months): 72
6. Basic Term Commencement Date: 01/03/95
7. Equipment Location: 333 Western Avenue, South
Portland, ME
8. Lessee Federal Tax ID No.: 952095071
9. Last Delivery Date:
10. First Termination Date: Sixty (60) months after
the Basic Term Commence Date.
C. Tax Benefits
Depreciation Deductions:
a. Depreciation Methods (check one):
X The 200% declining balance method, switching to
straight line method for the 1st taxable year for which
using the straight line method with respect to the adjusted
basis as of the beginning of such year will yield a larger
allowance; OR
____ The method determined by applying to the unadjusted
basis the applicable percentages set forth in Section
168(b)(1) of the Code, as in effect prior to the adoption of
the Tax Reform Act of 1986.
b. Recovery Period: Five Years
------------------------
c. Basis: 100% of Capitalized Lessor's Cost.
------------------------
D. Rent
1. Interim Rent. For the period from and including the
Lease Commencement Date to the Basic Term Commencement
Date ("Interim Period"), Lessee shall pay as rent
("Interim Rent") for each unit of Equipment, an amount
equal to (a) the product of the "Prime Rate" as
published in the "Money Rates" column of the Wall
Street Journal, Western Edition, on the business day
preceding the Acceptance Date, times the Capitalized
Lessor's Cost of such unit times the number of days in
the Interim Period, divided by (b) 360. Interim Rent
shall be due on 12/13/94 .
2. Basic Term Rent. Commencing on 01/03/95
and on the same day of each month thereafter
(each, a "Rent Payment Date") during the Basic Term,
Lessee shall pay as rent ("Basic Term Rent") the
product of the Basic Term Lease Rate Factor times the
Capitalized Lessor's Cost of all Equipment on this
Schedule.
3. [Deleted]
E. Insurance
1. Public Liability: $1,000,000 total liability per
occurrence.
2. Casualty and Property Damage: An amount equal to the
higher of the Stipulated Loss Value or the full
replacement cost of the Equipment.
F. Modifications and Additions to Lease
For purposes of this Schedule only, the Agreement is amended
as follows:
1. Section I(b) of the Agreement is hereby deleted in its
entirety and the following substituted in its stead:
(b) The obligation of Lessor to purchase the Equipment
from Lessee and to lease the same to Lessee shall be
subject to receipt by Lessor, on or prior to the
earlier of the Lease Commencement Date or Last Delivery
Date therefor, of each of the following documents in
form and substance satisfactory to Lessor: (i) a
Schedule relating to the Equipment then to be leased
hereunder, (ii) a Bill of Sale, in the form of Annex B
to the applicable Schedule, transferring title to the
Equipment to Lessor, (iii) evidence of insurance which
complies with the requirements of Section X, and (iv)
such other documents as Lessor may reasonably request.
Simultaneously with the execution of the Bill of Sale,
Lessee shall also execute a Certificate of Acceptance,
in the form of Annex C to the applicable Schedule,
covering all of the Equipment described in the Bill of
Sale.
2. Section VI(a) shall be deleted and the following
substituted in its stead:
(a) The parties acknowledge that this is a
sale/leaseback transaction and the Equipment is in
Lessee's possession as of the Lease Commencement
Date.
3. Section VII of the Lease is amended by adding the
following as the third sentence in subsection (a):
Lessee agrees that upon return of the Equipment,
it will be in good condition and working order, giving
consideration to reasonable wear and tear and the age
of the Equipment. Lessee shall, if requested by Lessor
and if reasonably possible, obtain a service report
from the manufacturer attesting to such condition.
4. Each reference contained in this Agreement to:
(a) "Adverse Environmental Condition" shall refer to
(i) the existence or the continuation of the existence,
of an Environmental Emission (including, without
limitation, a sudden or non-sudden accidental or
non-accidental Environmental Emission), of, or exposure
to, any substance, chemical, material, pollutant,
Contaminant, odor or audible noise or other release or
emission in, into or onto the environment (including,
without limitation, the air, ground, water or any
surface) at, in, by, from or related to any Equipment
from the time it leaves the Supplier's possession for
delivery to lessee until the time it is delivered to
Lessor, (ii) the environmental aspect of the
transportation, storage, treatment or disposal of
materials in connection with the operation of any
Equipment by Lessee or Lessee's agents or (iii) the
violation, or alleged violation by Lessee of any
statutes, ordinances, orders, rules regulations,
permits or licenses of, by or from any governmental
authority, agency or court relating to environmental
matters connected with any Equipment.
(b) "Affiliate" shall refer, with respect to any given
Person, to any Person that directly or indirectly
through one or more intermediaries, controls, or is
controlled by, or is under common control with, such
Person.
(c) "Contaminant" shall refer to those substances
which are regulated by or form the basis of liability
under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls
("PBCs"), and radioactive substances, or other material
or substance which has in the past or could in the
future constitute a health, safety or environmental
hazard to any Person, property or natural resources.
(d) "Environmental Claim" shall refer to any
accusation, allegation, notice of violation, claim,
demand, abatement or other order on direction
(conditional or otherwise) by any governmental
authority or any Person for person injury (including
sickness, disease or death), tangible or intangible
property damage, damage to the environment or other
adverse effects on the environment, or for fines,
penalties or restrictions, resulting from or based upon
any Adverse Environmental Condition.
(e) "Environmental Emission" shall refer to any actual
or threatened release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge,
dispersal, leaching or migration into the indoor or
outdoor environment, or into or out of any of the
Equipment, including, without limitation, the movement
of any Contaminant or other substance through or in the
air, soil, surface water, groundwater or property.
(f) "Environmental Law" shall mean any federal,
foreign, state or local law, rule or regulation
pertaining to the protection of the environment,
including, but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act
("CERCLA") (42 U.S.C. Section 9601 et seq.), the
Hazardous Material Transportation Act (49 U.S.C.
Section 1801 et seq.), the Federal Water Pollution
Control Act (33 U.S.C. Section 1251 et seq.), the
Resource Conversation and Recovery Act (42 U.S.C.
Section 6901 et seq.), the Clean Air Act (42 U.S.C.
Section 7401 et seq.), the Toxic Substances Control Act
(15 U.S.C. Section 2601 et seq.), the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C.
Section 1361 et seq.), and the Occupational Safety and
Health Act (19 U.S.C. section 651 et seq.), as these
laws have been amended or supplemented, and any
analogous foreign, federal, state or local statutes,
and the regulation promulgated pursuant thereto.
(g) "Environmental Loss" shall mean any loss, cost,
damage, liability, deficiency, fine, penalty or expense
(including without limitation, reasonable attorneys'
fees, engineering and other professional or export
fees), investigation, removal, cleanup and remedial
costs (voluntarily or involuntarily incurred) and
damages to, loss of the use of or decrease in value of
the Equipment arising out of or related to any Adverse
Environmental Condition.
(h) "Person" shall include any individual,
partnership, corporation, trust, unincorporated
organization, government or department or agency
thereof and any other entity.
5. Lessee shall fully and promptly pay, perform,
discharge, defend, indemnify and hold harmless Lessor and
its Affiliates, successors and assigns, directors, officers,
employees and agents from and against any Environmental
Claim or Environmental Loss. Defense and indemnification
under this Section is conditioned upon Lessor giving Lessee
timely written notice of any claim against which Lessor
wishes to be indemnified hereunder (unless Lessee learns of
any such claim from a third party, or unless Lessor does not
learn of such claim until such time as Lessor, acting
prudently on its own behalf, would be precluded from
defending by applicable law or rules), and Lessor giving
Lessee necessary and appropriate information and assistance
in the defense of same. Lessee's obligation to pay or
reimburse reasonable fees of counsel selected by Lessor to
defend any such claim shall be conditioned upon Lessee''
approval of such counsel, which approval shall not be
unreasonably withheld or delayed. Lessor shall provide
Lessee with periodic status reports on the defense or
settlement of such claim, upon Lessee's reasonable request,
and Lessor shall seek Lessee's consent to any proposed
settlement of such claim. If Lessee does not consent to a
proposed settlement of a claim, it shall advise Lessor of
its specific objections to the proposed settlement and shall
identify with particularity the terms, if any, upon which it
would consent to a settlement of the claim. If Lessor
settles any such claim without Lessee's consent and Lessee
objects to indemnifying Lessor for such settlement, then
Lessor and Lessee agree to submit the question of the
reasonableness of the settlement to binding arbitration. In
such arbitration, the arbitrator shall be jointly selected
by the parties (or, if they cannot agree on an arbitrator,
one shall be selected according to the rules of the American
Arbitration Association), and the arbitrator shall determine
to what extent, if any, Lessee shall indemnify Lessor for
both the settlement and any attorneys' fees incurred in
connection with the defense and settlement of the claim.
The decision of the arbitrator shall be final and binding
upon both parties, and neither party shall seek recourse to
a court of law or other authorities to appeal for revision
of such decision or any other ruling of the arbitrator. The
cost of the arbitration shall be borne by both parties in
equal amounts.
6. ADDITIONS AND ALTERATIONS. Subject to the conditions
set out in this paragraph, Lessor hereby agrees, if so
requested by Lessee, to purchase alterations, additions or
Features for the Equipment and lease them to Lessee under
the same terms and conditions and with the same expiration
date of the Initial Term as the applicable Equipment
Schedule, ad at a periodic Rental Payment that shall be
mutually satisfactory to Lessor and Lessee. Lessor's
obligation to purchase and lease such alterations, additions
or Features shall be conditioned on the following: no
default hereunder by Lessee shall have occurred and be
continuing; there shall have been no material adverse change
(as determined by Lessor in its reasonable exercise of
business judgment) in Lessee's financial condition or
business prospects from the Commencement Date of the
applicable Schedule; and such alterations, additions or
Features shall be acceptable for acquisition and lease under
Lessor's then standard business practices. Lessee may
obtain financing for such alterations, additions or Features
from third parties provided that (i) such alterations,
additions or Features can be undone or removed without
damaging or impairing the functionality, utility or value of
the Equipment as compared to Equipment on which such
alterations, additions or Features had never been installed,
and (ii) such
financing shall not in any event create a security interest
in, or lien or other encumbrance on, Lessor's Equipment.
7. EARLY PURCHASE OPTION:
(a) Provided that the Lease has not been earlier
terminated and provided further that Lessee is not in
default under the Lease or any other agreement between
Lessor and Lessee, Lessee may, UPON AT LEAST 30 DAYS
BUT NO MORE THAN 270 DAYS PRIOR WRITTEN NOTICE TO
LESSOR OR LESSEE'S IRREVOCABLE ELECTION TO EXERCISE
SUCH OPTION, purchase all (but not less than all) of
the Equipment listed and described in this Schedule on
the rent payment date (the "Early Purchase Date") which
is 60 months from the Basic Term Commencement
Date of the Schedule for a price equal to $391,484.27
(the "FMV Early Option Price"), plus all
applicable sales taxes on an AS IS BASIS. Lessor and
Lessee agree that the FMV Early Option Price is a
reasonable prediction of the Fair Market Value (as such
term is defined in Section XIX(b) hereof) of the
Equipment at the time the option is exercisable.
Lessor and Lessee agree that if Lessee makes any
non-severable improvement to the Equipment which is not
leased by Lessor to Lessee and which increases the
value of the Equipment and is not required or permitted
by Sections VII or XI of the Lease prior to lease
expiration, then at the time of such option being
exercised, Lessor and Lessee shall adjust the purchase
price to reflect any addition to the price anticipated
to result from such improvement. (The purchase option
granted by this subsection shall be referred to herein
as the "Early Purchase Option".)
(b) If Lessee exercises its Early Purchase Option with
respect to the Equipment leased hereunder, then on the
Early Purchase Option Date, Lessee shall pay to Lessor
any Rent and other sums due and unpaid on the Early
Purchase Option Date and Lessee shall pay the FMV Early
Option Price, plus all applicable sales taxes, to
Lessor in cash.
Except as expressly modified hereby, all terms and provisions of
the Agreement shall remain in full force and effect. This
Schedule is not binding or effective with respect to the
Agreement or Equipment until executed on behalf of Lessor and
Lessee by authorized representatives of Lessor and Lessee,
respectively.
IN WITNESS WHEREOF, Lessee and Lessor have caused this
Schedule to be executed by their duly authorized representatives
as of the date first above written.
LESSEE: LESSOR:
NATIONAL SEMICONDUCTOR GENERAL ELECTRIC CAPITAL
CORPORATION CORPORATION
By:_______________________________ By:_______________________________
__________________________________ __________________________________
(Typed or printed name and title) (Typed or printed name and title)
. ADDENDUM NO, 01
TO SCHEDULE NO. 001,002,003,004,005,006,007&008
TO
MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
RETURN CONDITIONS - ELECTRONICS EQUIPMENT
In addition to the provisions provided for in Section XI of
the Lease, and provided that the Lessee has not elected its
option to purchase the Equipment, Lessee shall, at its expense:
(A) Upon the request of Lessor, Lessee shall no later than
180 days prior to the expiration or other termination of the
lease provide:
1. a detailed inventory of the Equipment (including
the model and serial number of each major component thereof),
including, without limitation, all internal circuit boards,
module boards, and software features;
2. a complete and current set of all manuals, blue
prints, process flow diagram, equipment configuration diagrams,
maintenance records and other data reasonably requested by Lessor
concerning the configuration and operation of the Equipment; and
(B) Upon the request of Lessor, Lessee shall, not later
than 120 days prior to the expiration or other termination of the
Lease make the Equipment available for on-site operational
inspection by persons designated by the Lessor who shall be duly
qualified to inspect the Equipment in its operational
environment.
(C) All Equipment shall be cleaned and treated with respect
to rust, corrosion and appearance in accordance with
manufacturer's recommendations and consistent with the best
practices of dealers in used equipment similar to the Equipment;
shall have no Lessee installed markings of labels which are not
necessary for the operation, maintenance or repair of the
Equipment, and shall be in compliance with all applicable
government laws, rules and regulations.
(D) The Equipment shall be de-installed and packed in
accordance with manufacturer's recommendations. Without
limitation, all internal fluids will either be drained and
disposed of or filled and secured in accordance with
manufacturer's recommendations and applicable government laws,
rules and regulations.
(E) The Equipment will be transported in accordance with
manufacturer's recommendations and applicable government laws,
rules and regulations to not more than one individual location
within the continental United States selected by Lessor.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL NATIONAL SEMICONDUCTOR
CORPORATION CORPORATION
By:___________________________ By:__________________________
ANNEX A
TO
SCHEDULE NO. 003
TO MASTER LEASE AGREEMENT
DATED AS OF
DESCRIPTION OF EQUIPMENT
INVOICE
VENDOR NAME # INV. DATE EQUIPMENT COST
- ------------ --------- --------- ------------------------------------------------------------ ---------------
Lam 172965 10/27/93 851-010003-101 Assembly System R4520 Oxide Etch System $ 1,066,575.00
Research SN#2736 and attachments and accessories described more fully
Corp. on invoice #172965 attached hereto and made a part hereof
Lam 179955 4/25/94 Spare Parts to 4520 System described more fully on invoice $ 38,732.10
Research #179955 attached hereto and made a part hereof.
Corp.
Lam 180409 5/4/94 Encoder Shaft Freight $ 561.54 $6.00
Research
Corp.
Lam 180170 4/28/94 Funnel, Quartz P.S. Module $ 3,523.10
Research
Corp.
INVOICE COST: $1,109,397.74
Initials: --------------------------- ------------------------------
Lessor Lessee
ANNEX B
TO
SCHEDULE NO. 003
TO MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
BILL OF SALE
National Semiconductor Corporation (the "Seller"), in
consideration of the sum of One Million One Hundred Nine Thousand
Three Hundred Ninety-seven Dollars and Seventy-four Cents Dollars
($1,109,397.74) plus sales taxes in the amount of zero Dollars
($00.00) (if exemption from sales tax is claimed, an exemption
certificate must be furnished to Buyer herewith), paid by General
Electric Capital Corporation (the "Buyer"), receipt of which is
acknowledged, hereby grants, sells, assigns, transfers and
delivers to Buyer the equipment (the "Equipment") described in
the above schedule (said schedule and related lease being
collectively referred to as "Lease"), along with whatever claims
and rights Seller may have against the manufacturer and/or
supplier of the Equipment (the "Supplier"), including but not
limited to all warranties and representations. At Buyer's
request, Seller will cause Supplier to execute the attached
Acknowledgment.
Buyer is purchasing the Equipment for leasing back to Seller
pursuant to the Lease. Seller represents and warrants to Buyer
that (1) Buyer will acquire by the terms of this Bill of Sale
good title to the Equipment free from all liens and encumbrances
whatsoever; (2) Seller has the right to sell the Equipment; and
(3) the Equipment has been delivered to Seller in good order and
condition, and conforms to the specifications, requirements and
standards applicable thereto; and (4) the equipment has been
accurately labeled, consistent with the requirements of 40 CFR
part 82 Subpart E, with respect to products manufactured with a
controlled (ozone-depleting) substance.
Seller agrees to save and hold harmless Buyer from and against
any and all federal, state, municipal and local license fees and
taxes of any kind or nature, including, without limiting the
generality of the foregoing, any and all excise, personal
property, use and sales taxes, and from and against any and all
liabilities, obligations, losses, damages, penalties, claims,
actions and suits resulting therefrom and imposed upon, incurred
by or asserted against Buyer as a consequence of the sale of the
Equipment to Buyer.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale this
thirteenth day of December ,1994.
SELLER:
National Semiconductor
Corporation
By:_____________________
Title: Assistant Treasurer
-------------------------
- ------
ANNEX C
TO
SCHEDULE NO. 003
TO MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
CERTIFICATE OF ACCEPTANCE
To: General Electric Capital Corporation ("Lessor")
Pursuant to the provisions of the above schedule and lease
(collectively, the "Lease"), Lessee hereby certifies and warrants
that (a) all Equipment listed in the related Bill of Sale is in
good condition and appearance, installed (if applicable) and in
working order; and (b) Lessee accepts the Equipment for all
purposes of the Lease, the purchase documents and all attendant
documents.
Lessee does further certify that as of the date hereof (i)
Lessee is not in default under the Lease; (ii) the
representations and warranties made by Lessee pursuant to or
under the Lease are true and correct on the date hereof and (iii)
Lessee has reviewed and approves of the purchase documents for
the Equipment, if any.
DESCRIPTION OF EQUIPMENT
Type and
Manufacturer Serial Model of Number of Cost Per
Numbers Equipment Units Unit
See Annex A Attached hereto and Made A Part Hereof
______________________________
Authorized Representative
Dated: December 13,
1994 ----------------------
- --------
ANNEX D
TO
SCHEDULE NO 003
TO MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
STIPULATED LOSS AND TERMINATION VALUE TABLE*
STIPULATED
TERMINATION VALUE LOSS VALUE
RENTAL PERCENTAGE PERCENTAGE
- ------------- ------------------------- --------------
1 103.793 107.820
2 103.116 107.157
3 102.431 106.485
4 101.733 105.800
5 101.021 105.102
6 100.296 104.391
7 99.558 103.666
8 98.811 102.933
9 98.051 102.186
10 97.277 101.426
11 96.496 100.658
12 95.700 99.876
13 94.891 99.080
14 94.074 98.276
15 93.248 97.464
16 92.413 96.643
17 91.569 95.812
18 90.715 94.972
19 89.853 94.123
20 88.982 93.265
21 88.101 92.398
22 87.211 91.522
23 86.313 90.637
24 85.405 89.742
25 84.487 88.838
26 83.561 87.926
27 82.626 87.005
28 81.685 86.077
29 80.736 85.142
30 79.781 84.200
31 78.818 83.251
32 77.847 82.293
33 76.869 81.328
34 75.883 80.356
35 74.889 79.375
36 73.888 78.388
37 72.877 77.390
38 71.544 76.071
39 70.199 74.739
40 68.846 73.400
STIPULATED
TERMINATION VALUE LOSS VALUE
RENTAL PERCENTAGE PERCENTAGE
- ------------- ------------------------- --------------
41 67.484 72.052
42 66.114 70.695
43 64.735 69.330
44 63.344 67.952
45 61.945 66.567
46 60.537 65.172
47 59.117 63.766
48 57.689 62.351
49 56.251 60.927
50 54.802 59.491
51 53.340 58.043
52 51.872 56.588
53 50.396 55.126
54 48.914 53.657
55 47.424 52.181
56 45.922 50.692
57 44.413 49.196
PAYMENT AUTHORIZATION
General Electric Capital Corporation
2200 Powell Street Suite 600
Emeryville, CA 94608
You are hereby authorized to pay the proceeds from our
sale to you of certain Equipment as evidenced on the attached
Bill of Sale to the following parties in the amount(s) designated
below.
National Semiconductor $1,109,397.74
Corporation
2900 Semiconductor Drive
Santa Clara, CA 95052-8090
For reimbursement of funds
previously paid to various
vendors for equipment plus
attachments and accessories
including labor described on
Annex A attached hereto and
made a part hereof.
Very truly yours,
National Semiconductor Corporation
By:
-------------------------------
Title: Assistant Treasurer
---------------------------
Date: December 13, 1994
----------------------------
CERTIFICATE CONCERNING
PAYMENT OF PERSONAL PROPERTY TAXES
To: General Electric Capital Corporation
To insure Lessee's compliance with the provisions of a
Master Lease Agreement dated as of December 13, 1994 (the
"Lease") by and between the undersigned as Lessee and General
Electric Capital Corporation as Lessor, Lessee hereby agrees to
one of the following options with respect to the payment of
personal property taxes on the Equipment described in Annex A to
the Lease, such agreement to be conclusively evidenced by the
initials and signature of an authorized agent of Lessee in the
appropriate spaces provided below:
Please choose one of the options below by placing an "X" in the
appropriate box and initialing where indicated. Initial ONLY ONE
Choice of Option
OPTION 1 Lessee's Initials:
(Applicable in Jurisdictions Requiring Lessor to List Equipment):
Lessee agrees that it will not list any of such Equipment for
property tax purposes or report any property tax assessed against
such Equipment until otherwise directed in writing by Lessor.
Upon receipt of any property tax bill pertaining to such
Equipment from the appropriate taxing authority, Lessor will pay
such tax and will invoice Lessee for the expense. Upon receipt
of such invoice, Lessee will promptly reimburse Lessor for such
expense;
OPTION 2 Lessee's Initials:
(Applicable in Jurisdictions Permitting Lessee to List
Equipment): Lessee agrees that it will (a) list all such
Equipment, (b) report all property taxes assessed against such
Equipment and (c) pay all such taxes when due directly to the
appropriate taxing authority until Lessor shall otherwise direct
in writing.
LESSEE:
National Semiconductor Corporation
By:
-------------------------------
Title: Assistant Treasurer
----------------------------
Date: December 13, 1994
---------------------------
ELECTRONIC AND TEST EQUIPMENT SCHEDULE
SCHEDULE NO. 004
DATED THIS DECEMBER 13, 1994
TO MASTER LEASE AGREEMENT
DATED AS OF DECEMBER 13, 1994
Lessor & Mailing Address: Lessee & Mailing Address:
General Electric Capital National Semiconductor
Corporation Corporation
2200 Powell Street, Suite 600 2900 Semiconductor Drive
Emeryville, CA 94608 Santa Clara, CA 95052
Capitalized terms not defined shall have the meanings assigned to
them in the Master Lease Agreement identified above ("Agreement";
said Agreement and this Schedule being collectively referred to
as "Lease").
A. Equipment
Pursuant to the terms of the Lease, Lessor agrees to acquire
and lease to Lessee the Equipment listed on Annex A attached
hereto and made a part hereof.
B. Financial Terms
1. Advance Rent (if any): $16,503.52
2. Capitalized Lessor's Cost: $1,178,831.45
3. Basic Term Lease Rate Factor: Mons. 1-36 1.39999,
Mons. 37-72 1.71079
4. Daily Lease Rate Factor: Mons. 1-36 .04667, Mons.
37-72 .05703
5. Basic Term (No. of Months): 72
6. Basic Term Commencement Date: 01/03/95
7. Equipment Location: 333 Western Avenue, South
Portland, ME
8. Lessee Federal Tax ID No.: 952095071
9. Last Delivery Date:
10. First Termination Date: Sixty (60) months after
the Basic Term Commence Date.
C. Tax Benefits
Depreciation Deductions:
a. Depreciation Methods (check one):
X The 200% declining balance method, switching to
straight line method for the 1st taxable year for which
using the straight line method with respect to the adjusted
basis as of the beginning of such year will yield a larger
allowance; OR
____ The method determined by applying to the unadjusted
basis the applicable percentages set forth in Section
168(b)(1) of the Code, as in effect prior to the adoption of
the Tax Reform Act of 1986.
b. Recovery Period: Five Years
------------------------------
c. Basis: 100% of Capitalized Lessor's Cost.
---------------
D. Rent
1. Interim Rent. For the period from and including the
Lease Commence Date to the Basic Term Commencement Date
("Interim Period"), Lessee shall pay as rent ("Interim
Rent") for each unit of Equipment, an amount equal to
(a) the product of the "Prime Rate" as published in the
"Money Rates" column of the Wall Street Journal,
Western Edition, on the business day preceding the
Acceptance Date, times the Capitalized Lessor's Cost of
such unit times the number of days in the Interim
Period, divided by (b) 360. Interim Rent shall be on
12/13/94 .
2. Basic Term Rent. Commencing on 01/03/95
and on the same day of each month thereafter
(each, a "Rent Payment Date") during the Basic Term,
Lessee shall pay as rent ("Basic Term Rent") the
product of the Basic Term Lease Rate Factor times the
Capitalized Lessor's Cost of all Equipment on this
Schedule.
3. [Deleted]
E. Insurance
1. Public Liability: $1,000,000 total liability per
occurrence.
2. Casualty and Property Damage: An amount equal to the
higher of the Stipulated Loss Value or the full
replacement cost of the Equipment.
F. Modifications and Additions to Lease
For purposes of this Schedule only, the Agreement is amended
as follows:
1. Section I(b) of the Agreement is hereby deleted in its
entirety and the following substituted in its stead:
(b) The obligation of Lessor to purchase the Equipment
from Lessee and to lease the same to Lessee shall be
subject to receipt by Lessor, on or prior to the
earlier of the Lease Commence Date or Last Delivery
Date therefor, of each of the following documents in
form and substance satisfactory to Lessor: (i) a
Schedule relating to the Equipment then to be leased
hereunder, (ii) a Bill of Sale, in the form of Annex B
to the applicable Schedule, transferring title to the
Equipment to Lessor, (iii) evidence of insurance which
complies with the requirements of Section X, and (iv)
such other documents as Lessor may reasonably request.
Simultaneously with the execution of the Bill of Sale,
Lessee shall also execute a Certificate of Acceptance,
in the form of Annex C to the applicable Schedule,
covering all of the Equipment described in the Bill of
Sale.
2. Section VI(a) shall be deleted and the following
substituted in its stead:
(a) The parties acknowledge that this is a
sale/leaseback transaction and the Equipment is in
Lessee's possession as of the Lease Commencement
Date.
3. Section VII of the Lease is amended by adding the
following as the third sentence in subsection (a):
Lessee agrees that upon return of the Equipment,
it will be in good condition and working order, giving
consideration to reasonable wear and tear and the age
of the Equipment. Lessee shall, if requested by Lessor
and if reasonably possible, obtain a service report
from the manufacturer attesting to such condition.
4. Each reference contained in this Agreement to:
(a) "Adverse Environmental Condition" shall refer to
(i) the existence or the continuation of the existence,
of an Environmental Emission (including, without
limitation, a sudden or non-sudden accidental or
non-accidental Environmental Emission), of, or exposure
to, any substance, chemical, material, pollutant,
Contaminant, odor or audible noise or other release or
emission in, into or onto the environment (including,
without limitation, the air, ground, water or any
surface) at, in, by, from or related to any Equipment
from the time it leaves the Supplier's possession for
delivery to lessee until the time it is delivered to
Lessor, (ii) the environmental aspect of the
transportation, storage, treatment or disposal of
materials in connection with the operation of any
Equipment by Lessee or Lessee's agents or (iii) the
violation, or alleged violation by Lessee of any
statutes, ordinances, orders, rules regulations,
permits or licenses of, by or from any governmental
authority, agency or court relating to environmental
matters connected with any Equipment.
(b) "Affiliate" shall refer, with respect to any given
Person, to any Person that directly or indirectly
through one or more intermediaries, controls, or is
controlled by, or is under common control with, such
Person.
(c) "Contaminant" shall refer to those substances
which are regulated by or from the basis of liability
under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls
("PBCs"), and radioactive substances, or other material
or substance which has in the past or could in the
future constitute a health, safety or environmental
hazard to any Person, property or natural resources.
(d) "Environmental Claim" shall refer to any
accusation, allegation, notice of violation, claim,
demand, abatement or other order on direction
(conditional or otherwise) by any governmental
authority or any Person for person injury (including
sickness, disease or death), tangible or intangible
property damage, damage to the environment or other
adverse effects on the environment, or for fines,
penalties or restrictions, resulting from or based upon
any Adverse Environmental Condition.
(e) "Environmental Emission" shall refer to any actual
or threatened release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge,
dispersal, leaching or migration into the indoor or
outdoor environment, or into or out of any of the
Equipment, including, without limitation, the movement
of any Contaminant or other substance through or in the
air, soil, surface water, groundwater or property.
(f) "Environmental Law" shall mean any federal,
foreign, state or local law, rule or regulation
pertaining to the protection of the environment,
including, but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act
("CERCLA") (42 U.S.C. Section 9601 et seq.), the
Hazardous Material Transportation Act (49 U.S.C.
Section 1801 et seq.), the Federal Water Pollution
Control Act (33 U.S.C. Section 1251 et seq.), the
Resource Conversation and Recovery Act (42 U.S.C.
Section 6901 et seq.), the Clean Air Act (42 U.S.C.
Section 7401 et seq.), the Toxic Substances Control Act
(15 U.S.C. Section 2601 et seq.), the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C.
Section 1361 et seq.), and the Occupational Safety and
Health Act (19 U.S.C. section 651 et seq.), as these
laws have been amended or supplemented, and any
analogous foreign, federal, state or local statutes,
and the regulation promulgated pursuant thereto.
(g) "Environmental Loss" shall mean any loss, cost,
damage, liability, deficiency, fine, penalty or expense
(including without limitation, reasonable attorneys'
fees, engineering and other professional or export
fees), investigation, removal, cleanup and remedial
costs (voluntarily or involuntarily incurred) and
damages to, loss of the use of or decrease in value of
the Equipment arising out of or related to any Adverse
Environmental Condition.
(h) "Person" shall include any individual,
partnership, corporation, trust, unincorporated
organization, government or department or agency
thereof and any other entity.
5. Lessee shall fully and promptly pay, perform,
discharge, defend, indemnify and hold harmless Lessor and
its Affiliates, successors and assigns, directors, officers,
employees and agents from and against any Environmental
Claim or Environmental Loss. Defense and indemnification
under this Section is conditioned upon Lessor giving Lessee
timely written notice of any claim against which Lessor
wishes to be indemnified hereunder (unless Lessee learns of
any such claim from a third party, or unless Lessor does not
learn of such claim until such time as Lessor, acting
prudently on its own behalf, would be precluded from
defending by applicable law or rules), and Lessor giving
Lessee necessary and appropriate information and assistance
in the defense of same. Lessee's obligation to pay or
reimburse reasonable fees of counsel selected by Lessor to
defend any such claim shall be conditioned upon Lessee's
approval of such counsel, which approval shall not be
unreasonably withheld or delayed. Lessor shall provide
Lessee with periodic status reports on the defense or
settlement of such claim, upon Lessee's reasonable request,
and Lessor shall seek Lessee's consent to any proposed
settlement of such claim. If Lessee does not consent to a
proposed settlement of a claim, it shall advise Lessor of
its specific objections to the proposed settlement and shall
identify with particularity the terms, if any, upon which it
would consent to a settlement of the claim. If Lessor
settles any such claim without Lessee's consent and Lessee
objects to indemnifying Lessor for such settlement, then
Lessor and Lessee agree to submit the question of the
reasonableness of the settlement to binding arbitration. In
such arbitration, the arbitrator shall be jointly selected
by the parties (or, if they cannot agree on an arbitrator,
one shall be selected according to the rules of the American
Arbitration Association), and the arbitrator shall determine
to what extent, if any, Lessee shall indemnify Lessor for
both the settlement and any attorneys' fees incurred in
connection with the defense and settlement of the claim.
The decision of the arbitrator shall be final and binding
upon both parties, and neither party shall seek recourse to
a court of law or other authorities to appeal for revision
of such decision or any other ruling of the arbitrator. The
cost of the arbitration shall be borne by both parties in
equal amounts.
6. ADDITIONS AND ALTERATIONS. Subject to the conditions
set out in this paragraph, Lessor hereby agrees, if so
requested by Lessee, to purchase alterations, additions or
Features for the Equipment and lease them to Lessee under
the same terms and conditions and with the same expiration
date of the Initial Term as the applicable Equipment
Schedule, ad at a periodic Rental Payment that shall be
mutually satisfactory to Lessor and Lessee. Lessor's
obligation to purchase and lease such alterations, additions
or Features shall be conditioned on the following: no
default hereunder by Lessee shall have occurred and be
continuing; there shall have been no material adverse change
(as determined by Lessor in its reasonable exercise of
business judgment) in Lessee's financial condition or
business prospects from the Commencement Date of the
applicable Schedule; and such alterations, additions or
Features shall be acceptable for acquisition and lease under
Lessor's then standard business practices. Lessee may
obtain financing for such alterations, additions or Features
from third parties provided that (i) such alterations,
additions or Features can be undone or removed without
damaging or impairing the functionality, utility or value of
the Equipment as compared to Equipment on which such
alterations, additions or Features had never been installed,
and (ii) such financing shall not in any event create a
security interest in, or lien or other encumbrance on,
Lessor's Equipment.
7. EARLY PURCHASE OPTION:
(a) Provided that the Lease has not been earlier
terminated and provided further that Lessee is not in
default under the Lease or any other agreement between
Lessor and Lessee, Lessee may, UPON AT LEAST 30 DAYS
BUT NO MORE THAN 270 DAYS PRIOR WRITTEN NOTICE TO
LESSOR OR LESSEE'S IRREVOCABLE ELECTION TO EXERCISE
SUCH OPTION, purchase all (but not less than all) of
the Equipment listed and described in this Schedule on
the rent payment date (the "Early Purchase Date") which
is 60 months from the Basic Term Commencement
Date of the Schedule for a price equal to $
415,986.04 (the "FMV Early Option Price"), plus all
applicable sales taxes on an AS IS BASIS. Lessor and
Lessee agree that the FMV Early Option Price is a
reasonable prediction of the Fair Market Value (as such
term is defined in Section XIX(b) hereof) of the
Equipment at the time the option is exercisable.
Lessor and Lessee agree that if Lessee makes any
non-severable improvement to the Equipment which is not
leased by Lessor to Lessee and which increases the
value of the Equipment and is not required or permitted
by Sections VII or XI of the Lease prior to lease
expiration, then at the time of such option being
exercised, Lessor and Lessee shall adjust the purchase
price to reflect any addition to the price anticipated
to result from such improvement. (The purchase option
granted by this subsection shall be referred to herein
as the "Early Purchase Option".)
(b) If Lessee exercises its Early Purchase Option with
respect to the Equipment leased hereunder, then on the
Early Purchase Option Date, Lessee shall pay to Lessor
any Rent and other sums due and unpaid on the Early
Purchase Option Date and Lessee shall pay the FMV Early
Option Price, plus all applicable sales taxes, to
Lessor in cash.
Except as expressly modified hereby, all terms and provisions of
the Agreement shall remain in full force and effect. This
Schedule is not binding or effective with respect to the
Agreement or Equipment until executed on behalf of Lessor and
Lessee by authorized representatives of Lessor and Lessee,
respectively.
IN WITNESS WHEREOF, Lessee and Lessor have caused this
Schedule to be executed by their duly authorized representatives
as of the date first above written.
LESSEE: LESSOR:
NATIONAL SEMICONDUCTOR GENERAL ELECTRIC CAPITAL
CORPORATION CORPORATION
By:_______________________________ By:_______________________________
__________________________________ __________________________________
(Typed or printed name and title) (Typed or printed name and title)
ADDENDUM NO, 01
TO SCHEDULE NO. 001,002,003,004,005,006,007&008
TO
MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
RETURN CONDITIONS - ELECTRONICS EQUIPMENT
In addition to the provisions provided for in Section XI of
the Lease, and provided that the Lessee has not elected its
option to purchase the Equipment, Lessee shall,. at its expense:
(A) Upon the request of Lessor, Lessee shall no later than
180 days prior to the expiration or other termination of the
lease provide:
1. a detailed inventory of the Equipment (including
the model and serial number of each major component thereof),
including, without limitation, all internal circuit boards,
module boards, and software features;
2. a complete and current set of all manuals, blue
prints, process flow diagram, equipment configuration diagrams,
maintenance records and other data reasonably requested by Lessor
concerning the configuration and operation of the Equipment; and
(B) Upon the request of Lessor, Lessee shall, not later
than 120 days prior to the expiration or other termination of the
Lease make the Equipment available for on-site operational
inspection by persons designated by the Lessor who shall be duly
qualified to inspect the Equipment in its operational
environment.
(C) All Equipment shall be cleaned and treated with respect
to rust, corrosion and appearance in accordance with
manufacturer's recommendations and consistent with the best
practices of dealers in used equipment similar to the Equipment;
shall have no Lessee installed markings of labels which are not
necessary for the operation, maintenance or repair of the
Equipment, and shall be in compliance with all applicable
government laws, rules and regulations.
(D) The Equipment shall be de-installed and packed in
accordance with manufacturer's recommendations. Without
limitation, all internal fluids will either be drained and
disposed of or filled and secured in accordance with
manufacturer's recommendations and applicable government laws,
rules and regulations.
(E) The Equipment will be transported in accordance with
manufacturer's recommendations and applicable government laws,
rules and regulations to not more than one individual location
within the continental United States selected by Lessor.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL NATIONAL SEMICONDUCTOR
CORPORATION CORPORATION
By:__________________________ By:_________________________
ANNEX A
TO
SCHEDULE NO. 004
TO MASTER LEASE AGREEMENT
DATED AS OF
DESCRIPTION OF EQUIPMENT
INVOICE INV.
VENDOR NAME # DATE EQUIPMENT COST
- ------------- --------- --------- ------------------------------------------------------------ ---------------
Lam Research 183107 6/30/94 850-010000-151 R4520S Oxide Etch System SN#2953 and $ 1,058,898.75
Corp. attachments and accessories described more fully on invoice
#183107 attached hereto and made a part hereof.
Freight: $ 2,719.53
Lam Research 187044 9/21/94 Ring Filler $ 4,180.00
Corp.
Lam Res. 187077 9/23/94 (2) Silicon 6" Electrodes $ 11,450.00
Corp.
Lam Res. 187947 10/10/9 4 Quartz Funnel, 8.12 Dim. $ 4,325.00
Corp.
Lam Research 187519 9/30/94 Spare Parts and attachments and accessories described more $ 30,044.00
Corp. fully on invoice #187519 attached hereto and made a part
hereof.
Ebara Tec h. 105987 8/8/94 40x20 Dry Pump, Plugs/Cords $ 21,165.00
Inc.
Freight $ 196.62
Ebara Tec h. 106006 8/10/94 80, 280V 4520S 4520I $ 38,080.00
Inc.
Freight $ 329.07
Ebara Tec h. 106001 8/10/94 Cont. PNL, 208V, 80, 4040, LAM4520S $ 7,404.00
Inc.
Freight $ 39.48
INVOICE COST: $1,178,831.45
Initials: ------------------------- ------------------------------
Lessor Lessee
ANNEX B
TO
SCHEDULE NO. 004
TO MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
BILL OF SALE
National Semiconductor Corporation (the "Seller"), in
consideration of the sum of One Million One Hundred Seventy-eight
Thousand Eight Hundred Thirty-one Dollars and Forty-five Cents
Dollars ($1,178,831.45) plus sales taxes in the amount of zero
Dollars ($00.00) (if exemption from sales tax is claimed, an
exemption certificate must be furnished to Buyer herewith), paid
by General Electric Capital Corporation (the "Buyer"), receipt of
which is acknowledged, hereby grants, sells, assigns, transfers
and delivers to Buyer the equipment (the "Equipment") described
in the above schedule (said schedule and related lease being
collectively referred to as "Lease"), along with whatever claims
and rights Seller may have against the manufacturer and/or
supplier of the Equipment (the "Supplier"), including but not
limited to all warranties and representations. At Buyer's
request, Seller will cause Supplier to execute the attached
Acknowledgment.
Buyer is purchasing the Equipment for leasing back to Seller
pursuant to the Lease. Seller represents and warrants to Buyer
that (1) Buyer will acquire by the terms of this Bill of Sale
good title to the Equipment free from all liens and encumbrances
whatsoever; (2) Seller has the right to sell the Equipment; and
(3) the Equipment has been delivered to Seller in good order and
condition, and conforms to the specifications, requirements and
standards applicable thereto; and (4) the equipment has been
accurately labeled, consistent with the requirements of 40 CFR
part 82 Subpart E, with respect to products manufactured with a
controlled (ozone-depleting) substance.
Seller agrees to save and hold harmless Buyer from and against
any and all federal, state, municipal and local license fees and
taxes of any kind or nature, including, without limiting the
generality of the foregoing, any and all excise, personal
property, use and sales taxes, and from and against any and all
liabilities, obligations, losses, damages, penalties, claims,
actions and suits resulting therefrom and imposed upon, incurred
by or asserted against Buyer as a consequence of the sale of the
Equipment to Buyer.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale this
thirteenth day of December ,1994.
SELLER:
National Semiconductor
Corporation
By:_______________________
Title: Assistant Treasurer
------------------------
- -----
ANNEX C
TO
SCHEDULE NO. 004
TO MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
CERTIFICATE OF ACCEPTANCE
To: General Electric Capital Corporation ("Lessor")
Pursuant to the provisions of the above schedule and lease
(collectively, the "Lease"), Lessee hereby certifies and warrants
that (a) all Equipment listed in the related Bill of Sale is in
good condition and appearance, installed (if applicable) and in
working order; and (b) Lessee accepts the Equipment for all
purposes of the Lease, the purchase documents and all attendant
documents.
Lessee does further certify that as of the date hereof (i)
Lessee is not in default under the Lease; (ii) the
representations and warranties made by Lessee pursuant to or
under the Lease are true and correct on the date hereof and (iii)
Lessee has reviewed and approves of the purchase documents for
the Equipment, if any.
DESCRIPTION OF EQUIPMENT
Type and
Manufacture Serial Model of Number of Cost Per
Numbers Equipment Units Unit
See Annex A Attached hereto and Made A Part Hereof
_____________________________
Authorized Representative
Dated: December 13, 1994
---------------------
ANNEX D
TO
SCHEDULE NO 004
TO MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
STIPULATED LOSS AND TERMINATION VALUE TABLE*
TERMINATION VALUE STIPULATED LOSS VALUE
RENTAL PERCENTAGE PERCENTAGE
- ------------- ---------------------- --------------------------
1 103.793 107.820
2 103.116 107.157
3 102.431 106.485
4 101.733 105.800
5 101.021 105.102
6 100.296 104.391
7 99.558 103.666
8 98.811 102.933
9 98.051 102.186
10 97.277 101.426
11 96.496 100.658
12 95.700 99.876
13 94.891 99.080
14 94.074 98.276
15 93.248 97.464
16 92.413 96.643
17 91.569 95.812
18 90.715 94.972
19 89.853 94.123
20 88.982 93.265
21 88.101 92.398
22 87.211 91.522
23 86.313 90.637
24 85.405 89.742
25 84.487 88.838
26 83.561 87.926
27 82.626 87.005
28 81.685 86.077
29 80.736 85.142
30 79.781 84.200
31 78.818 83.251
32 77.847 82.293
33 76.869 81.328
34 75.883 80.356
35 74.889 79.375
36 73.888 78.388
37 72.877 77.390
38 71.544 76.071
39 70.199 74.739
40 68.846 73.400
41 67.484 72.052
TERMINATION VALUE STIPULATED LOSS VALUE
RENTAL PERCENTAGE PERCENTAGE
- ------------- ---------------------- --------------------------
42 66.114 70.695
43 64.735 69.330
44 63.344 67.952
45 61.945 66.567
46 60.537 65.172
47 59.117 63.766
48 57.689 62.351
49 56.251 60.927
50 54.802 59.491
51 53.340 58.043
52 51.872 56.588
53 50.396 55.126
54 48.914 53.657
55 47.424 52.181
56 45.922 50.692
57 44.413 49.196 cont.
PAYMENT AUTHORIZATION
General Electric Capital Corporation
2200 Powell Street Suite 600
Emeryville, CA 94608
You are hereby authorized to pay the proceeds from our
sale to you of certain Equipment as evidenced on the attached
Bill of Sale to the following parties in the amount(s) designated
below.
National Semiconductor $1,178,831.45
Corporation
2900 Semiconductor Drive
Santa Clara, CA 95052-8090
For reimbursement of funds
previously paid to various
vendors for equipment plus
attachments and accessories
including labor described on
Annex A attached hereto and
made a part hereof.
Very truly yours,
National Semiconductor Corporation
By:
--------------------------------
Title: Assistant Treasurer
-----------------------------
Date: December 13, 1994
------------------------------
CERTIFICATE CONCERNING
PAYMENT OF PERSONAL PROPERTY TAXES
To: General Electric Capital Corporation
To insure Lessee's compliance with the provisions of a
Master Lease Agreement dated as of December 13, 1994 (the
"Lease") by and between the undersigned as Lessee and General
Electric Capital Corporation as Lessor, Lessee hereby agrees to
one of the following options with respect to the payment of
personal property taxes on the Equipment described in Annex A to
the Lease, such agreement to be conclusively evidenced by the
initials and signature of an authorized agent of Lessee in the
appropriate spaces provided below:
Please choose one of the options below by placing an "X" in the
appropriate box and initialing where indicated. Initial ONLY ONE
Choice of Option
OPTION 1 Lessee's Initials:
(Applicable in Jurisdictions Requiring Lessor to List Equipment):
Lessee agrees that it will not list any of such Equipment for
property tax purposes or report any property tax assessed against
such Equipment until otherwise directed in writing by Lessor.
Upon receipt of any property tax bill pertaining to such
Equipment from the appropriate taxing authority, Lessor will pay
such tax and will invoice Lessee for the expense. Upon receipt
of such invoice, Lessee will promptly reimburse Lessor for such
expense;
OPTION 2 Lessee's Initials:
(Applicable in Jurisdictions Permitting Lessee to List
Equipment): Lessee agrees that it will (a) list all such
Equipment, (b) report all property taxes assessed against such
Equipment and (c) pay all such taxes when due directly to the
appropriate taxing authority until Lessor shall otherwise direct
in writing.
LESSEE:
National Semiconductor Corporation
By:
-------------------------------
Title: Assistant Treasurer
----------------------------
Date: December 13, 1994
-----------------------------
ELECTRONIC AND TEST EQUIPMENT SCHEDULE
SCHEDULE NO. 005
DATED THIS DECEMBER 13, 1994
TO MASTER LEASE AGREEMENT
DATED AS OF DECEMBER 13, 1994
Lessor & Mailing Address: Lessee & Mailing Address:
General Electric Capital National Semiconductor
Corporation Corporation
2200 Powell Street, Suite 600 2900 Semiconductor Drive
Emeryville, CA 94608 Santa Clara, CA 95052
Capitalized terms not defined herein shall have the meanings
assigned to them in the Master Lease Agreement identified above
("Agreement"; said Agreement and this Schedule being collectively
referred to as "Lease").
A. Equipment
Pursuant to the terms of the Lease, Lessor agrees to acquire
and lease to Lessee the Equipment listed on Annex A attached
hereto and made a part hereof.
B. Financial Terms
1. Advance Rent (if any): $15,318.40
2. Capitalized Lessor's Cost: $1,078,009.08
3. Basic Term Lease Rate Factor: Mons. 1-36 1.42099,
Mons. 37-72 1.73644
4. Daily Lease Rate Factor: Mons. 1-36 .04737, Mons.
37-72 .05788
5. Basic Term (No. of Months): 72
6. Basic Term Commencement Date: 01/03/95
7. Equipment Location: 333 Western Avenue, South
Portland, ME
8. Lessee Federal Tax ID No.: 952095071
9. Last Delivery Date:
10. First Termination Date: Sixty (60) months after
the Basic Term Commence Date.
C. Tax Benefits
Depreciation Deductions:
a. Depreciation Methods (check one):
X The 200% declining balance method, switching to
straight line method for the 1st taxable year for which
using the straight line method with respect to the adjusted
basis as of the beginning of such year will yield a larger
allowance; OR
____ The method determined by applying to the unadjusted
basis the applicable percentages set forth in Section
168(b)(1) of the Code, as in effect prior to the adoption of
the Tax Reform Act of 1986.
b. Recovery Period: Five Years
c. Basis: 100% of Capitalized Lessor's Cost.
D. Rent
1. Interim Rent. For the period from and including the
Lease Commencement Date to the Basic Term Commencement
Date ("Interim Period"), Lessee shall pay as rent
("Interim Rent") for each unit of Equipment, an amount
equal to (a) the product of the "Prime Rate" as
published in the "Money Rates" column of the Wall
Street Journal, Western Edition, on the business day
preceding the Acceptance Date, times the Capitalized
Lessor's Cost of such unit times the number of days in
the Interim Period, divided by (b) 360. Interim Rent
shall be on 12/13/94 .
2. Basic Term Rent. Commencing on 01/03/95
and on the same day of each month thereafter
(each, a "Rent Payment Date") during the Basic Term,
Lessee shall pay as rent ("Basic Term Rent") the
product of the Basic Term Lease Rate Factor times the
Capitalized Lessor's Cost of all Equipment on this
Schedule.
3. [Deleted]
E. Insurance
1. Public Liability: $1,000,000 total liability per
occurrence.
2. Casualty and Property Damage: An amount equal to the
higher of the Stipulated Loss Value or the full
replacement cost of the Equipment.
F. Modifications and Additions to Lease
For purposes of this Schedule only, the Agreement is amended
as follows:
1. Section I(b) of the Agreement is hereby deleted in its
entirety and the following substituted in its stead:
(b) The obligation of Lessor to purchase the Equipment
from Lessee and to lease the same to Lessee shall be
subject to receipt by Lessor, on or prior to the
earlier of the Lease Commence Date or Last Delivery
Date therefor, of each of the following documents in
form and substance satisfactory to Lessor: (i) a
Schedule relating to the Equipment then to be leased
hereunder, (ii) a Bill of Sale, in the form of Annex B
to the applicable schedule, transferring title to the
Equipment to Lessor, (iii) evidence of insurance which
complies with the requirements of Section X, and (iv)
such other documents as Lessor may reasonably request.
Simultaneously with the execution of the Bill of Sale,
Lessee shall also execute a Certificate of Acceptance,
in the form of Annex C to the applicable Schedule,
covering all of the Equipment described in the Bill of
Sale.
2. Section VI(a) shall be deleted and the following
substituted in its stead:
(a) The parties acknowledge that this is a
sale/leaseback transaction and the Equipment is in
Lessee's possession as of the Lease Commencement
Date.
3. Section VII of the Lease is amended by adding the
following as the third sentence in subsection (a):
Lessee agrees that upon return of the Equipment,
it will be in good condition and working order, giving
consideration to reasonable wear and tear and the age
of the Equipment. Lessee shall, if requested by Lessor
and if reasonably possible, obtain a service report
from the manufacturer attesting to such condition.
4. Each reference contained in this Agreement to:
(a) "Adverse Environmental Condition" shall refer to
(i) the existence or the continuation of the existence,
of an Environmental Emission (including, without
limitation, a sudden or non-sudden accidental or
non-accidental Environmental Emission), of, or exposure
to, any substance, chemical, material, pollutant,
Contaminant, odor or audible noise or other release or
emission in, into or onto the environment (including,
without limitation, the air, ground, water or any
surface) at, in, by, from or related to any Equipment
from the time it leaves the Supplier's possession for
delivery to lessee until the time it is delivered to
Lessor, (ii) the environmental aspect of the
transportation, storage, treatment or disposal of
materials in connection with the operation of any
Equipment by Lessee or Lessee's agents or (iii) the
violation, or alleged violation by Lessee of any
statutes, ordinances, orders, rules regulations,
permits or licenses of, by or from any governmental
authority, agency or court relating to environmental
matters connected with any Equipment.
(b) "Affiliate" shall refer, with respect to any given
Person, to any Person that directly or indirectly
through one or more intermediaries, controls, or is
controlled by, or is under common control with, such
Person.
(c) "Contaminant" shall refer to those substances
which are regulated by or from the basis of liability
under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls
("PBCs"), and radioactive substances, or other material
or substance which has in the past or could in the
future constitute a health, safety or environmental
hazard to any Person, property or natural resources.
(d) "Environmental Claim" shall refer to any
accusation, allegation, notice of violation, claim,
demand, abatement or other order on direction
(conditional or otherwise) by any governmental
authority or any Person for person injury (including
sickness, disease or death), tangible or intangible
property damage, damage to the environment or other
adverse effects on the environment, or for fines,
penalties or restrictions, resulting from or based upon
any Adverse Environmental Condition.
(e) "Environmental Emission" shall refer to any actual
or threatened release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge,
dispersal, leaching or migration into the indoor or
outdoor environment, or into or out of any of the
Equipment, including, without limitation, the movement
of any Contaminant or other substance through or in the
air, soil, surface water, groundwater or property.
(f) "Environmental Law" shall mean any federal,
foreign, state or local law, rule or regulation
pertaining to the protection of the environment,
including, but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act
("CERCLA") (42 U.S.C. Section 9601 et seq.), the
Hazardous Material Transportation Act (49 U.S.C.
Section 1801 et seq.), the Federal Water Pollution
Control Act (33 U.S.C. Section 1251 et seq.), the
Resource Conservation and Recovery Act (42 U.S.C.
Section 6901 et seq.), the Clean Air Act (42 U.S.C.
Section 7401 et seq.), the Toxic Substances Control Act
(15 U.S.C. Section 2601 et seq.), the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C.
Section 1361 et seq.), and the Occupational Safety and
Health Act (19 U.S.C. section 651 et seq.), as these
laws have been amended or supplemented, and any
analogous foreign, federal, state or local statutes,
and the regulation promulgated pursuant thereto.
(g) "Environmental Loss" shall mean any loss, cost,
damage, liability, deficiency, fine, penalty or expense
(including without limitation, reasonable attorneys'
fees, engineering and other professional or expert
fees), investigation, removal, cleanup and remedial
costs (voluntarily or involuntarily incurred) and
damages to, loss of the use of or decrease in value of
the Equipment arising out of or related to any Adverse
Environmental Condition.
(h) "Person" shall include any individual,
partnership, corporation, trust, unincorporated
organization, government or department or agency
thereof and any other entity.
5. Lessee shall fully and promptly pay, perform,
discharge, defend, indemnify and hold harmless Lessor and
its Affiliates, successors and assigns, directors, officers,
employees and agents from and against any Environmental
Claim or Environmental Loss. Defense and indemnification
under this Section is conditioned upon Lessor giving Lessee
timely written notice of any claim against which Lessor
wishes to be indemnified hereunder (unless Lessee learns of
any such claim from a third party, or unless Lessor does not
learn of such claim until such time as Lessor, acting
prudently on its own behalf, would be precluded from
defending by applicable law or rules), and Lessor giving
Lessee necessary and appropriate information and assistance
in the defense of same. Lessee's obligation to pay or
reimburse reasonable fees of counsel selected by Lessor to
defend any such claim shall be conditioned upon Lessee's
approval of such counsel, which approval shall not be
unreasonably withheld or delayed. Lessor shall provide
Lessee with periodic status reports on the defense or
settlement of such claim, upon Lessee's reasonable request,
and Lessor shall seek Lessee's consent to a proposed
settlement of a claim. If Lessee does not consent a
proposed settlement of a claim, it shall advise Lessor of
its specific objections to the proposed settlement and shall
identify with particularity the terms, if any, upon which it
would consent to a settlement of the claim. If Lessor
settles any such claim without Lessee's consent and Lessee
objects to indemnifying Lessor for such settlement, then
Lessor and Lessee agree to submit the question of the
reasonableness of the settlement to binding arbitration. In
such arbitration, the arbitrator shall be jointly selected
by the parties (or, if they cannot agree on an arbitrator,
one shall be selected according to the rules of the American
Arbitration Association), and the arbitrator shall determine
to what extent, if any, Lessee shall indemnify Lessor for
both the settlement and any attorneys' fees incurred in
connection with the defense and settlement of the claim.
The decision of the arbitrator shall be final and binding
upon both parties, and neither party shall seek recourse to
a court of law or other authorities to appeal for revision
of such decision or any other ruling of the arbitrator. The
cost of the arbitration shall be borne by both parties in
equal amounts.
6. ADDITIONS AND ALTERATIONS. Subject to the conditions
set out in this paragraph, Lessor hereby agrees, if so
requested by Lessee, to purchase alterations, additions or
Features for the Equipment and lease them to Lessee under
the same terms and conditions and with the same expiration
date of the Initial Term as the applicable Equipment
Schedule, ad at a periodic Rental Payment that shall be
mutually satisfactory to Lessor and Lessee. Lessor's
obligation to purchase and lease such alterations, additions
or Features shall be conditioned on the following: no
default hereunder by Lessee shall have occurred and be
continuing; there shall have been no material adverse change
(as determined by Lessor in its reasonable exercise of
business judgment) in Lessee's financial condition or
business prospects from the Commencement Date of the
applicable Schedule; and such alterations, additions or
Features shall be acceptable for acquisition and lease under
Lessor's then standard business practices. Lessee may
obtain financing for such alterations, additions or Features
from third parties provided that (i) such alterations,
additions or Features can be undone or removed without
damaging or impairing the functionality, utility or value of
the Equipment as compared to Equipment on which such
alterations, additions or Features had never been installed,
and (ii) such financing shall not in any event create a
security interest in, or lien or other encumbrance on,
Lessor's Equipment.
7. EARLY PURCHASE OPTION:
(a) Provided that the Lease has not been earlier
terminated and provided further that Lessee is not in
default under the Lease or any other agreement between
Lessor and Lessee, Lessee may, UPON AT LEAST 30 DAYS
BUT NO MORE THAN 270 DAYS PRIOR WRITTEN NOTICE TO
LESSOR OF LESSEE'S IRREVOCABLE ELECTION TO EXERCISE
SUCH OPTION, purchase all (but not less than all) of
the Equipment listed and described in this Schedule on
the rent payment date (the "Early Purchase Date") which
is 60 months from the Basic Term Commencement
Date of the Schedule for a price equal to $ 363,235.16
(the "FMV Early Option Price"), plus all applicable sales
taxes on an AS IS BASIS. Lessor and Lessee agree that the
FMV Early Option Price is a reasonable prediction of the Fair
Market Value (as such term is defined in Section XIX(b) hereof) of the
Equipment at the time the option is exercisable.
Lessor and Lessee agree that if Lessee makes any
non-severable improvement to the Equipment which is not
leased by Lessor to Lessee and which increases the
value of the Equipment and is not required or permitted
by Sections VII or XI of the Lease prior to lease
expiration, then at the time of such option being
exercised, Lessor and Lessee shall adjust the purchase
price to reflect any addition to the price anticipated
to result from such improvement. (The purchase option
granted by this subsection shall be referred to herein
as the "Early Purchase Option".)
(b) If Lessee exercises its Early Purchase Option with
respect to the Equipment leased hereunder, then on the
Early Purchase Option Date, Lessee shall pay to Lessor
any Rent and other sums due and unpaid on the Early
Purchase Option Date and Lessee shall pay the FMV Early
Option Price, plus all applicable sales taxes, to
Lessor in cash.
Except as expressly modified hereby, all terms and provisions of
the Agreement shall remain in full force and effect. This
Schedule is not binding or effective with respect to the
Agreement or Equipment until executed on behalf of Lessor and
Lessee by authorized representatives of Lessor and Lessee,
respectively.
IN WITNESS WHEREOF, Lessee and Lessor have caused this
Schedule to be executed by their duly authorized representatives
as of the date first above written.
LESSEE: LESSOR:
NATIONAL SEMICONDUCTOR GENERAL ELECTRIC CAPITAL
CORPORATION CORPORATION
By:______________________________ By:______________________________
_________________________________ _________________________________
(Typed or printed name and title) (Typed or printed name and title)
ADDENDUM NO, 01
TO SCHEDULE NO. 001,002,003,004,005,006,007&008
TO
MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
RETURN CONDITIONS - ELECTRONICS EQUIPMENT
In addition to the provisions provided for in Section XI of
the Lease, and provided that the Lessee has not elected its
option to purchase the Equipment, Lessee shall, at its expense:
(A) Upon the request of Lessor, Lessee shall no later than
180 days prior to the expiration or other termination of the
lease provide:
1. a detailed inventory of the Equipment (including
the model and serial number of each major component thereof),
including, without limitation, all internal circuit boards,
module boards, and software features;
2. a complete and current set of all manuals, blue
prints, process flow diagrams, equipment configuration diagrams,
maintenance records and other data reasonably requested by Lessor
concerning the configuration and operation of the Equipment; and
(B) Upon the request of Lessor, Lessee shall, not later
than 120 days prior to the expiration or other termination of the
Lease make the Equipment available for on-site operational
inspection by persons designated by the Lessor who shall be duly
qualified to inspect the Equipment in its operational
environment.
(C) All Equipment shall be cleaned and treated with respect
to rust, corrosion and appearance in accordance with
manufacturer's recommendations and consistent with the best
practices of dealers in used equipment similar to the Equipment;
shall have no Lessee installed markings of labels which are not
necessary for the operation, maintenance or repair of the
Equipment, and shall be in compliance with all applicable
government laws, rules and regulations.
(D) The Equipment shall be de-installed and packed in
accordance with manufacturer's recommendations. Without
limitation, all internal fluids will either be drained and
disposed of or filled and secured in accordance with
manufacturer's recommendations and applicable government laws,
rules and regulations.
(E) The Equipment will be transported in accordance with
manufacturer's recommendations and applicable government laws,
rules and regulations to not more than one individual location
within the continental United States selected by Lessor.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL CORPORATION NATIONAL SEMICONDUCTOR CORPORATION
By:_________________________________ By:______________________________
ANNEX A
TO
SCHEDULE NO. 005
TO MASTER LEASE AGREEMENT
DATED AS OF
DESCRIPTION OF EQUIPMENT
INVOICE
VENDOR NAME # INV. DATE EQUIPMENT COST
- ------------- ----------- --------- --------------------------------------------------------- -------------
Lam Research 171404 9/15/93 LAM 4420 S/N #2686 $ 773,527.30
Corp
Lam Research 171860 9/27/93 Software, Lamstation/4420/4500 $ 13.195.00
Corp
Ebara Tech., 103990 10/14/93 (2) 80x25 H-100, SN#932496 (2) 40x20 w/o Cooler $ 118,490.00
Inc.
Ebara Tech, 104011 10/18/93 (1) 208V Flsw PS Sol Crds/Plug $ 21,165.00
Inc.
Ebara Tech, 104048 10/25/93 (1) 40#2 208V Sol Cords & Plugs and attachments and $ 78,795.00
Inc. accessories described more fully on invoice #104048
attached hereto and made a part hereof.
Ebara Tech, 104122 11/9/93 Pump System, 40x20, SN#932590 and attachments and $ 42,488.10
Inc. accessories described more fully on invoice #104122
attached hereto and made a part hereof.
MG Industries G00485 11/24/93 (1) Guardian 4 Gas Protection System, Natural Gas and $ 29,334.74
attachments and accessories described more fully on
invoice #G00485 attached hereto and made a part hereof.
Freight $658.86
Freight 355.08
INVOICE COST: $1,078,009.08
Initials: --------------------------- -------------------------------
Lessor Lessee
ANNEX B
TO
SCHEDULE NO. 005
TO MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
BILL OF SALE
National Semiconductor Corporation (the "Seller"), in
consideration of the sum of One Million Seventy-eight Thousand
Nine Dollars and Eight Cents Dollars ($1,078,009.08) plus sales
taxes in the amount of zero Dollars ($00.00) (if exemption from
sales tax is claimed, an exemption certificate must be furnished
to Buyer herewith), paid by General Electric Capital Corporation
(the "Buyer"), receipt of which is acknowledged, hereby grants,
sells, assigns, transfers and delivers to Buyer the equipment
(the "Equipment") described in the above schedule (said schedule
and related lease being collectively referred to as "Lease"),
along with whatever claims and rights Seller may have against the
manufacturer and/or supplier of the Equipment (the "Supplier"),
including but not limited to all warranties and representations.
At Buyer's request, Seller will cause Supplier to execute the
attached Acknowledgment.
Buyer is purchasing the Equipment for leasing back to Seller
pursuant to the Lease. Seller represents and warrants to Buyer
that (1) Buyer will acquire by the terms of this Bill of Sale
good title to the Equipment free from all liens and encumbrances
whatsoever; (2) Seller has the right to sell the Equipment; and
(3) the Equipment has been delivered to Seller in good order and
condition, and conforms to the specifications, requirements and
standards applicable thereto; and (4) the equipment has been
accurately labeled, consistent with the requirements of 40 CFR
part 82 Subpart E, with respect to products manufactured with a
controlled (ozone-depleting) substance.
Seller agrees to save and hold harmless Buyer from and against
any and all federal, state, municipal and local license fees and
taxes of any kind or nature, including, without limiting the
generality of the foregoing, any and all excise, personal
property, use and sales taxes, and from and against any and all
liabilities, obligations losses, damages, penalties, claims,
actions and suits resulting therefrom and imposed upon, incurred
by or asserted against Buyer as a consequence of the sale of the
Equipment to Buyer.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale this
thirteenth day of December ,1994.
- ----------- ------------
SELLER:
National Semiconductor Corporation
By:
----------------------------
Title: Assistant Treasurer
-------------------------
ANNEX C
TO
SCHEDULE NO. 005
TO MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
CERTIFICATE OF ACCEPTANCE
To: General Electric Capital Corporation ("Lessor")
Pursuant to the provisions of the above schedule and lease
(collectively, the "Lease"), Lessee hereby certifies and warrants
that (a) all Equipment listed in the related Bill of Sale is in
good condition and appearance, installed (if applicable) and in
working order; and (b) Lessee accepts the Equipment for all
purposes of the Lease, the purchase documents and all attendant
documents.
Lessee does further certify that as of the date hereof (i)
Lessee is not in default under the Lease; (ii) the
representations and warranties made by Lessee pursuant to or
under the Lease are true and correct on the date hereof and (iii)
Lessee has reviewed and approves of the purchase documents for
the Equipment, if any.
DESCRIPTION OF EQUIPMENT
Type and
Manufacturer Serial Model of Number of Cost Per
Numbers Equipment Units Unit
See Annex A Attached hereto and Made A Part Hereof
--------------------------
Authorized Representative
Dated: December 13, 1994
--------------------------
ANNEX D
TO
SCHEDULE NO 005
TO MASTER LEASE AGREEMENT
DATED AS OF
STIPULATED LOSS AND TERMINATION VALUE TABLE*
TERMINATION VALUE STIPULATED LOSS VALUE
RENTAL PERCENTAGE PERCENTAGE
- ------------- ---------------------- --------------------------
1 103.787 107.868
2 103.089 107.211
3 102.384 106.546
4 101.664 105.867
5 100.931 105.175
6 100.185 104.469
7 99.425 103.750
8 98.657 103.022
9 97.876 102.281
10 97.080 101.526
11 96.277 100.763
12 95.459 99.986
13 94.628 99.196
14 93.789 98.397
15 92.941 97.589
16 92.083 96.773
17 91.217 95.946
18 90.341 95.111
19 89.455 94.266
20 88.561 93.413
21 87.658 92.550
22 86.745 91.677
23 85.823 90.796
24 84.892 89.905
25 83.951 89.005
26 83.001 88.096
27 82.043 87.178
28 81.077 86.253
29 80.104 85.321
30 79.125 84.382
31 78.138 83.436
32 77.143 82.480
33 76.140 81.518
34 75.130 80.549
35 74.111 79.570
36 73.085 78.585
37 72.049 77.589
38 70.686 76.267
39 69.311 74.932
40 67.927 73.589
41 66.535 72.238
42 65.134 70.878
TERMINATION VALUE STIPULATED LOSS VALUE
RENTAL PERCENTAGE PERCENTAGE
- ------------- ---------------------- --------------------------
43 63.725 69.509
44 62.304 68.128
45 60.873 66.738
46 59.434 65.340
47 57.983 63.929
48 56.523 62.509
49 55.054 61.081
50 53.572 59.640
51 52.078 58.187
52 50.578 56.726
53 49.070 55.259
54 47.554 53.784
55 46.032 52.302
56 44.497 50.808
57 42.955 49.306 cont.
PAYMENT AUTHORIZATION
General Electric Capital Corporation
2200 Powell Street Suite 600
Emeryville, CA 94608
You are hereby authorized to pay the proceeds from our
sale to you of certain Equipment as evidenced on the attached
Bill of Sale to the following parties in the amount(s) designated
below.
National Semiconductor $1,078,009.08
Corporation
2900 Semiconductor Drive
Santa Clara, CA 95052-8090
For reimbursement of funds
previously paid to various
vendors for equipment plus plus
attachments and accessories
including labor described on
Annex A attached hereto and
made a part hereof.
Very truly yours,
National Semiconductor Corporation
By:___________________________
Title: Assistant Treasurer
---------------------------------
- ----------------
Date: December 13, 1994
----------------------------------
- ----------------
CERTIFICATE CONCERNING
PAYMENT OF PERSONAL PROPERTY TAXES
To: General Electric Capital Corporation
To insure Lessee's compliance with the provisions of a
Master Lease Agreement dated as of Dec. 13, 1994 (the
"Lease") by and between the undersigned as Lessee and General
Electric Capital Corporation as Lessor, Lessee hereby agrees to
one of the following options with respect to the payment of
personal property taxes on the Equipment described in Annex A to
the Lease, such agreement to be conclusively evidenced by the
initials and signature of an authorized agent of Lessee in the
appropriate spaces provided below:
Please choose one of the options below by placing an "X" in the
appropriate box and initialing where indicated. Initial ONLY ONE
Choice of Option
OPTION 1 / /
---------
Lessee's Initials:
--------------
(Applicable in Jurisdictions Requiring Lessor to List Equipment):
Lessee agrees that it will not list any of such Equipment for
property tax purposes or report any property tax assessed against
such Equipment until otherwise directed in writing by Lessor.
Upon receipt of any property tax bill pertaining to such
Equipment from the appropriate taxing authority, Lessor will pay
such tax and will invoice Lessee for the expense. Upon receipt
of such invoice, Lessee will promptly reimburse Lessor for such
expense;
OPTION 2 / /
---------
Lessee's Initials:
--------------
(Applicable in Jurisdictions Permitting Lessee to List
Equipment): Lessee agrees that it will (a) list all such
Equipment, (b) report all property taxes assessed against such
Equipment and (c) pay all such taxes when due directly to the
appropriate taxing authority until Lessor shall otherwise direct
in writing.
LESSEE:
National Semiconductor Corporation
By:____________________________
Title: Assistant Treasurer
-------------------------------
- -------------
Date: December 13, 1994
--------------------------------
- -------------
ELECTRONIC AND TEST EQUIPMENT SCHEDULE
SCHEDULE NO. 006
DATED THIS DECEMBER 13, 1994
TO MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
Lessor & Mailing Address: Lessee & Mailing Address:
General Electric Capital National Semiconductor
Corporation Corporation
2200 Powell Street, Suite 600 2900 Semiconductor Drive
Emeryville, CA 94608 Santa Clara, CA 95052
Capitalized terms not defined herein shall have the meanings
assigned to them in the Master Lease Agreement identified above
("Agreement"; said Agreement and this Schedule being collectively
referred to as "Lease").
A. Equipment
Pursuant to the terms of the Lease, Lessor agrees to acquire
and lease to Lessee the Equipment listed on Annex A attached
hereto and made a part hereof.
B. Financial Terms
1. Advance Rent (if any): $18,090.04
2. Capitalized Lessor's Cost: $1,273,059.02
3. Basic Term Lease Rate Factor: Mons. 1-36 1.42099,
Mons. 37-72 1.73644
4. Daily Lease Rate Factor: Mons. 1-36 .04737, Mons.
37-72 .05788
5. Basic Term (No. of Months): 72
6. Basic Term Commencement Date: 01/03/95
7. Equipment Location: 333 Western Avenue, South
Portland, ME
8. Lessee Federal Tax ID No.: 952095071
9. Last Delivery Date:
10. First Termination Date: Sixty (60) months after
the Basic Term Commencement Date.
C. Tax Benefits
Depreciation Methods (check one):
a. Depreciation Deductions:
X The 200% declining balance method, switching to
straight line method for the 1st taxable year for which
using the straight line method with respect to the adjusted
basis as of the beginning of such year will yield a larger
allowance; OR
____ The method determined by applying to the unadjusted
basis the applicable percentages set forth in Section
168(b)(1) of the Code, as in effect prior to the adoption of
the Tax Reform Act of 1986.
b. Recovery Period: Five Years
c. Basis: 100% of Capitalized Lessor's Cost.
D. Rent
1. Interim Rent. For the period from and including the
Lease Commencement Date to the Basic Term Commencement
Date ("Interim Period"), Lessee shall pay as rent
("Interim Rent") for each unit of Equipment, an amount
equal to (a) the product of the "Prime Rate" as
published in the "Money Rates" column of the Wall
Street Journal, Western Edition, on the business day
preceding the Acceptance Date, times the Capitalized
Lessor's Cost of such unit times the number of days in
the Interim Period, divided by (b) 360. Interim Rent
shall be on 12/13/94 .
2. Basic Term Rent. Commencing on 01/03/95
and on the same day of each month thereafter
(each, a "Rent Payment Date") during the Basic Term,
Lessee shall pay as rent ("Basic Term Rent") the
product of the Basic Term Lease Rate Factor times the
Capitalized Lessor's Cost of all Equipment on this
Schedule.
3. [Deleted]
E. Insurance
1. Public Liability: $1,000,000 total liability per
occurrence.
2. Casualty and Property Damage: An amount equal to the
higher of the Stipulated Loss Value or the full
replacement cost of the Equipment.
F. Modifications and Additions to Lease
For purposes of this Schedule only, the Agreement is amended
as follows:
1. Section I(b) of the Agreement is hereby deleted in its
entirety and the following substituted in its stead:
(b) The obligation of Lessor to purchase the Equipment
from Lessee and to lease the same to Lessee shall be
subject to receipt by Lessor, on or prior to the
earlier of the Lease Commence Date or Last Delivery
Date therefor, of each of the following documents in
form and substance satisfactory to Lessor: (i) a
Schedule relating to the Equipment then to be leased
hereunder, (ii) a Bill of Sale, in the form of Annex B
to the applicable Schedule, transferring title to the
Equipment to Lessor, (iii) evidence of insurance which
complies with the requirements of Section X, and (iv)
such other documents as Lessor may reasonably request.
Simultaneously with the execution of the Bill of Sale,
Lessee shall also execute a Certificate of Acceptance,
in the form of Annex C to the applicable Schedule,
covering all of the Equipment described in the Bill of
Sale.
2. Section VI(a) shall be deleted and the following
substituted in its stead:
(a) The parties acknowledge that this is a
sale/leaseback transaction and the Equipment is in
Lessee's possession as of the Lease Commencement
Date.
3. Section VII of the Lease is amended by adding the
following as the third sentence in subsection (a):
Lessee agrees that upon return of the Equipment,
it will be in good condition and working order, giving
consideration to reasonable wear and tear and the age
of the Equipment. Lessee shall, if requested by Lessor
and if reasonably possible, obtain a service report
from the manufacturer attesting to such condition.
4. Each reference contained in this Agreement to:
(a) "Adverse Environmental Condition" shall refer to
(i) the existence or the continuation of the existence,
of an Environmental Emission (including, without
limitation, a sudden or non-sudden accidental or
non-accidental Environmental Emission), of, or exposure
to, any substance, chemical, material, pollutant,
Contaminant, odor or audible noise or other release or
emission in, into or onto the environment (including,
without limitation, the air, ground, water or any
surface) at, in, by, from or related to any Equipment
from the time it leaves the Supplier's possession for
delivery to lessee until the time it is delivered to
Lessor, (ii) the environmental aspect of the
transportation, storage, treatment or disposal of
materials in connection with the operation of any
Equipment by Lessee or Lessee's agents or (iii) the
violation, or alleged violation by Lessee of any
statutes, ordinances, orders, rules regulations,
permits or licenses of, by or from any governmental
authority, agency or court relating to environmental
matters connected with any Equipment.
(b) "Affiliate" shall refer, with respect to any given
Person, to any Person that directly or indirectly
through one or more intermediaries, controls, or is
controlled by, or is under common control with, such
Person.
(c) "Contaminant" shall refer to those substances
which are regulated by or form the basis of liability
under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls
("PBCs"), and radioactive substances, or other material
or substance which has in the past or could in the
future constitute a health, safety or environmental
hazard to any Person, property or natural resources.
(d) "Environmental Claim" shall refer to any
accusation, allegation, notice of violation, claim,
demand, abatement or other order on direction
(conditional or otherwise) by any governmental
authority or any Person for person injury (including
sickness, disease or death), tangible or intangible
property damage, damage to the environment or other
adverse effects on the environment, or for fines,
penalties or restrictions, resulting from or based upon
any Adverse Environmental Condition.
(e) "Environmental Emission" shall refer to any actual
or threatened release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge,
dispersal, leaching or migration into the indoor or
outdoor environment, or into or out of any of the
Equipment, including, without limitation, the movement
of any Contaminant or other substance through or in the
air, soil, surface water, groundwater or property.
(f) "Environmental Law" shall mean any federal,
foreign, state or local law, rule or regulation
pertaining to the protection of the environment,
including, but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act
("CERCLA") (42 U.S.C. Section 9601 et seq.), the
Hazardous Material Transportation Act (49 U.S.C.
Section 1801 et seq.), the Federal Water Pollution
Control Act (33 U.S.C. Section 1251 et seq.), the
Resource Conversation and Recovery Act (42 U.S.C.
Section 6901 et seq.), the Clean Air Act (42 U.S.C.
Section 7401 et seq.), the Toxic Substances Control Act
(15 U.S.C. Section 2601 et seq.), the Federal
Insecticide Fungicide, and Rodenticide Act (7 U.S.C.
Section 1361 et seq.), and the Occupational Safety and
Health Act (19 U.S.C. section 651 et seq.), as these
laws have been amended or supplemented, and any
analogous foreign, federal, state or local statutes,
and the regulation promulgated pursuant thereto.
(g) "Environmental Loss" shall mean any loss, cost,
damage, liability, deficiency, fine, penalty or expense
(including without limitation, reasonable attorneys'
fees, engineering and other professional or expert
fees), investigation, removal, cleanup and remedial
costs (voluntarily or involuntarily incurred) and
damages to, loss of the use of or decrease in value of
the Equipment arising out of or related to any Adverse
Environmental Condition.
(h) "Person" shall include any individual,
partnership, corporation, trust, unincorporated
organization, government or department or agency
thereof and any other entity.
5. Lessee shall fully and promptly pay, perform,
discharge, defend, indemnify and hold harmless Lessor and
its Affiliates, successors and assigns, directors, officers,
employees and agents from and against any Environmental
Claim or Environmental Loss. Defense and indemnification
under this Section is conditioned upon Lessor giving Lessee
timely written notice of any claim against which Lessor
wishes to be indemnified hereunder (unless Lessee learns of
any such claim from a third party, or unless Lessor does not
learn of such claim until such time as Lessor, acting
prudently on its own behalf, would be precluded from
defending by applicable law or rules), and Lessor giving
Lessee necessary and appropriate information and assistance
in the defense of same. Lessee's obligation to pay or
reimburse reasonable fees of counsel selected by Lessor to
defend any such claim shall be conditioned upon Lessee's
approval of such counsel, which approval shall not be
unreasonably withheld or delayed. Lessor shall provide
Lessee with periodic status reports on the defense or
settlement of such claim, upon Lessee's reasonable request,
and Lessor shall seek Lessee's consent to a proposed
settlement of a claim. If Lessee does not consent to a
proposed settlement of a claim, it shall advise Lessor of
its specific objections to the proposed settlement and shall
identify with particularity the terms, if any, upon which it
would consent to a settlement of the claim. If Lessor
settles any such claim without Lessee's consent and Lessee
objects to indemnifying Lessor for such settlement, then
Lessor and Lessee agree to submit the question of the
reasonableness of the settlement to binding arbitration. In
such arbitration, the arbitrator shall be jointly selected
by the parties (or, if they cannot agree on an arbitrator,
one shall be selected according to the rules of the American
Arbitration Association), and the arbitrator shall determine
to what extent, if any, Lessee shall indemnify Lessor for
both the settlement and any attorneys' fees incurred in
connection with the defense and settlement of the claim.
The decision of the arbitrator shall be final and binding
upon both parties, and neither party shall seek recourse to
a court of law or other authorities to appeal for revision
of such decision or any other ruling of the arbitrator. The
cost of the arbitration shall be borne by both parties in
equal amounts.
6. ADDITIONS AND ALTERATIONS. Subject to the conditions
set out in this paragraph, Lessor hereby agrees, if so
requested by Lessee, to purchase alterations, additions or
Features for the Equipment and lease them to Lessee under
the same terms and conditions and with the same expiration
date of the Initial Term as the applicable Equipment
Schedule, ad at a periodic Rental Payment that shall be
mutually satisfactory to Lessor and Lessee. Lessor's
obligation to purchase and lease such alterations, additions
or Features shall be conditioned on the following: no
default hereunder by Lessee shall have occurred and be
continuing; there shall have been no material adverse change
(as determined by Lessor in its reasonable exercise of
business judgment) in Lessee's financial condition or
business prospects from the Commencement Date of the
applicable Schedule; and such alterations, additions or
Features shall be acceptable for acquisition and lease under
Lessor's then standard business practices. Lessee may
obtain financing for such alterations, additions or Features
from third parties provided that (i) such alterations,
additions or Features can be undone or removed without
damaging or impairing the functionality, utility or value of
the Equipment as compared to Equipment on which such
alterations, additions or Features had never been installed,
and (ii) such financing shall not in any event create a
security interest in, or lien or other encumbrance on,
Lessor's Equipment.
7. EARLY PURCHASE OPTION:
(a) Provided that the Lease has not been earlier
terminated and provided further that Lessee is not in
default under the Lease or any other agreement between
Lessor and Lessee, Lessee may, UPON AT LEAST 30 DAYS
BUT NO MORE THAN 270 DAYS PRIOR WRITTEN NOTICE TO
LESSOR OR LESSEE'S IRREVOCABLE ELECTION TO EXERCISE
SUCH OPTION, purchase all (but not less than all) of
the Equipment listed and described in this Schedule on
the rent payment date (the "Early Purchase Date") which
is 60 months from the Basic Term Commencement
Date of the Schedule for a price equal to $428,957.24
(the "FMV Early Option Price"), plus all
applicable sales taxes on an AS IS BASIS. Lessor and
Lessee agree that the FMV Early Option Price is a
reasonable prediction of the Fair Market Value (as such
term is defined in Section XIX(b) hereof) of the
Equipment at the time the option is exercisable.
Lessor and Lessee agree that if Lessee makes any
non-severable improvement to the Equipment which is not
leased by Lessor to Lessee and which increases the
value of the Equipment and is not required or permitted
by Sections VII or XI of the Lease prior to lease
expiration, then at the time of such option being
exercised, Lessor and Lessee shall adjust the purchase
price to reflect any addition to the price anticipated
to result from such improvement. (The purchase option
granted by this subsection shall be referred to herein
as the "Early Purchase Option".)
(b) If Lessee exercises its Early Purchase Option with
respect to the Equipment leased hereunder, then on the
Early Purchase Option Date, Lessee shall pay to Lessor
any Rent and other sums due and unpaid on the Early
Purchase Option Date and Lessee shall pay the FMV Early
Option Price, plus all applicable sales taxes, to
Lessor in cash.
Except as expressly modified hereby, all terms and provisions of
the Agreement shall remain in full force and effect. This
Schedule is not binding or effective with respect to the
Agreement or Equipment until executed on behalf of Lessor and
Lessee by authorized representatives of Lessor and Lessee,
respectively.
IN WITNESS WHEREOF, Lessee and Lessor have caused this
Schedule to be executed by their duly authorized representatives
as of the date first above written.
LESSEE: LESSOR:
NATIONAL SEMICONDUCTOR GENERAL ELECTRIC CAPITAL
CORPORATION CORPORATION
By:____________________________ By:____________________________
_______ _______
_______________________________ _______________________________
_______ _______
(Typed or printed name and (Typed or printed name and
title) title)
ADDENDUM NO, 01
TO SCHEDULE NO. 001,002,003,004,005,006,007&008
TO
MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
RETURN CONDITIONS - ELECTRONICS EQUIPMENT
In addition to the provisions provided for in Section XI of
the Lease, and provided that the Lessee has not elected its
option to purchase the Equipment, Lessee shall, at its expense:
(A) Upon the request of Lessor, Lessee shall no later than
180 days prior to the expiration or other termination of the
least provide:
1. a detailed inventory of the Equipment (including
the model and serial number of each major component thereof),
including, without limitation, all internal circuit boards,
module boards, and software features;
2. a complete and current set of all manuals, blue
prints, process flow diagrams, equipment configuration diagrams,
maintenance records and other data reasonably requested by Lessor
concerning the configuration and operation of the Equipment; and
(B) Upon the request of Lessor, Lessee shaft, not later
than 120 days prior to the expiration or other termination of the
Lease make the Equipment available for on-site operational
inspection by persons designated by the Lessor who shall be duly
qualified to inspect the Equipment in its operational
environment.
(C) All Equipment shall be cleaned and treated with respect
to rust, corrosion and appearance in accordance with
manufacturer's recommendations and consistent with the best
practices of dealers in used equipment similar to the Equipment;
shall have no Lessee installed markings of labels which are not
necessary for the operation, maintenance or repair of the
Equipment, and shall be in compliance with all applicable
government laws, rules and regulations.
(D) The Equipment shall be de-installed and packed in
accordance with manufacturer's recommendations. Without
limitation, all internal fluids will either be drained and
disposed of or filled and secured in accordance with
manufacturer's recommendations and applicable government laws,
rules and regulations.
(E) The Equipment will be transported in accordance with
manufacturer's recommendations and applicable government laws,
rules and regulations to not more than one individual location
within the continental United States selected by Lessor.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL NATIONAL SEMICONDUCTOR
CORPORATION CORPORATION
By:_________________________ By:__________________________
ANNEX A
TO
SCHEDULE NO. 006
TO MASTER LEASE AGREEMENT
DATED AS OF
DESCRIPTION OF EQUIPMENT
INVOICE
VENDOR NAME # INV. DATE EQUIPMENT COST
- ------------- ----------- --------- --------------------------------------------------------- -------------
Applied 111260 & 12/23/93 Precision 5000 Mark II CVD $ 870,510.00
Materials 111259 Freight $ 2,950.49
Ebara Tech, 104370 1/7/94 (4) 50x20 208 Volt Dry Pumps (2) 40x20 (#2) Dry Pumps $ 157,050.00
Inc. Freight $ 1,397.88
Ebara Tech, 104882 2/18/94 (1) 50x20 208 Volt Dry Pump (1) 40x20 (#2) Dry Pumps $ 48,600.00
Inc.
104928 2/25/94 (1) 50x20 208 Volt Dry Pump $ 29,925.00
Freight $ 619.96
Ebara Tech, 104903 2/24/94 (1) 50x20 208 Volt Dry Pump $ 29,925.00
Inc. Freight $ 325.50
Ebara Tech, 104942 2/28/94 (1) 40x20W/CLRS, 208V, 3/8" Exhpurge $ 23,715.00
Inc. Freight $ 382.80
MG Industries G00464 10/25/93 (3) Guardian 4 Gas Protection System, Natural Gas and $ 107,657.39
attachments and accessories described more fully on
invoice #G00464 attached hereto and made a part hereof.
INVOICE COST: $1,273,059.02
Initials: ---------------------------- --------------------------------
Lessor Lessee
ANNEX B
TO
SCHEDULE NO. 006
TO MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
BILL OF SALE
National Semiconductor Corporation (the "Seller"), in
consideration of the sum of One Million Two Hundred Seventy-three
Thousand Fifty-nine Hundred Dollars and Two Cents Dollars
($1,273,059.02) plus sales taxes in the amount of zero Dollars
($00.00) (if exemption from sales tax is claimed, an exemption
certificate must be furnished to Buyer herewith), paid by General
Electric Capital Corporation (the "Buyer"), receipt of which is
acknowledged, hereby grants, sells, assigns, transfers and
delivers to Buyer the equipment (the "Equipment") described in
the above schedule (said schedule and related lease being
collectively referred to as "Lease"), along with whatever claims
and rights Seller may have against the manufacturer and/or
supplier of the Equipment (the "Supplier"), including but not
limited to all warranties and representations. At Buyer's
request, Seller will cause Supplier to execute the attached
Acknowledgment.
Buyer is purchasing the Equipment for leasing back to Seller
pursuant to the Lease. Seller represents and warrants to Buyer
that (1) Buyer will acquire by the terms of this Bill of Sale
good title to the Equipment free from all liens and encumbrances
whatsoever; (2) Seller has the right to sell the Equipment; and
(3) the Equipment has been delivered to Seller in good order and
condition, and conforms to the specifications, requirements and
standards applicable thereto; and (4) the equipment has been
accurately labeled, consistent with the requirements of 40 CFR
part 82 Subpart E, with respect to products manufactured with a
controlled (ozone-depleting) substance.
Seller agrees to save and hold harmless Buyer from and against
any and all federal, state, municipal and local license fees and
taxes of any kind or nature, including, without limiting the
generality of the foregoing, any and all excise, personal
property, use and sales taxes, and from and against any and all
liabilities, obligations losses, damages, penalties, claims,
actions and suits resulting therefrom and imposed upon, incurred
by or asserted against Buyer as a consequence of the sale of the
Equipment to Buyer.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale this
thirteenth day of December ,1994.
SELLER:
National Semiconductor Corporation
By:
---------------------------
Title: Assistant Treasurer
------------------------
ANNEX C
TO
SCHEDULE NO. 006
TO MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
CERTIFICATE OF ACCEPTANCE
To: General Electric Capital Corporation ("Lessor")
Pursuant to the provisions of the above schedule and lease
(collectively, the "Lease"), Lessee hereby certifies and warrants
that (a) all Equipment listed in the related Bill of Sale is in
good condition and appearance, installed (if applicable) and in
working order; and (b) Lessee accepts the Equipment for all
purposes of the Lease, the purchase documents and all attendant
documents.
Lessee does further certify that as of the date hereof (i)
Lessee is not in default under the Lease; (ii) the
representations and warranties made by Lessee pursuant to or
under the Lease are true and correct on the date hereof and (iii)
Lessee has reviewed and approves of the purchase documents for
the Equipment, if any.
DESCRIPTION OF EQUIPMENT
Type and
Manufacturer Serial Model of Number of Cost Per
Numbers Equipment Units Unit
See Annex A Attached hereto and Made A Part Hereof
--------------------------------
Authorized Representative
Dated: December 13, 1994
--------------------------
ANNEX D
TO
SCHEDULE NO 006
TO MASTER LEASE AGREEMENT
DATED AS OF DECEMBER 13, 1994
STIPULATED LOSS AND TERMINATION VALUE TABLE*
TERMINATION VALUE STIPULATED LOSS VALUE
RENTAL PERCENTAGE PERCENTAGE
- ------------- ---------------------- --------------------------
1 103.787 107.868
2 103.089 107.211
3 102.384 106.546
4 101.664 105.867
5 100.931 105.175
6 100.185 104.469
7 99.425 103.750
8 98.657 103.022
9 97.876 102.281
10 97.080 101.526
11 96.277 100.763
12 95.459 99.986
13 94.628 99.196
14 93.789 98.397
15 92.941 97.589
16 92.083 96.773
17 91.217 95.946
18 90.341 95.111
19 89.455 94.266
20 88.561 93.413
21 87.658 92.550
22 86.745 91.677
23 85.823 90.796
24 84.892 89.905
25 83.951 89.005
26 83.001 88.096
27 82.043 87.178
28 81.077 86.253
29 80.104 85.321
30 79.125 84.382
31 78.138 83.436
32 77.143 82.480
33 76.140 81.518
34 75.130 80.549
35 74.111 79.570
36 73.085 78.585
37 72.049 77.589
38 70.686 76.267
39 69.311 74.932
40 67.927 73.589
41 66.535 72.238
TERMINATION VALUE STIPULATED LOSS VALUE
RENTAL PERCENTAGE PERCENTAGE
- ------------- ---------------------- --------------------------
42 65.134 70.878
43 63.725 69.509
44 62.304 68.128
45 60.873 66.738
46 59.434 65.340
47 57.983 63.929
48 56.523 62.509
49 55.054 61.081
50 53.572 59.640
51 52.078 58.187
52 50.578 56.726
53 49.070 55.259
54 47.554 53.784
55 46.032 52.302
56 44.497 50.808
57 42.955 49.306 cont.
PAYMENT AUTHORIZATION
General Electric Capital Corporation
2200 Powell Street Suite 600
Emeryville, CA 94608
You are hereby authorized to pay the proceeds from our
sale to you of certain Equipment as evidenced on the attached
Bill of Sale to the following parties in the amount(s) designated
below.
National Semiconductor $1,273,059.02
Corporation
2900 Semiconductor Drive
Santa Clara, CA 95052-8090
For reimbursement of funds
previously paid to various
vendors for equipment plus plus
attachments and accessories
including labor described on
Annex A attached hereto and
made a part hereof.
Very truly yours,
National Semiconductor Corporation
By:
-----------------------------
Title: Assistant Treasurer
--------------------------
Date: December 13, 1994
--------------------------
CERTIFICATE CONCERNING
PAYMENT OF PERSONAL PROPERTY TAXES
To: General Electric Capital Corporation
To insure Lessee's compliance with the provisions of a
Master Lease Agreement dated as of Dec. 13, 1994 (the
"Lease") by and between the undersigned as Lessee and General
Electric Capital Corporation as Lessor, Lessee hereby agrees to
one of the following options with respect to the payment of
personal property taxes on the Equipment described in Annex A to
the Lease, such agreement to be conclusively evidenced by the
initials and signature of an authorized agent of Lessee in the
appropriate spaces provided below:
Please choose one of the options below by placing an "X" in the
appropriate box and initialing where indicated. Initial ONLY ONE
Choice of Option
OPTION 1 / / Lessee's Initials:
----- -----
(Applicable in Jurisdictions Requiring Lessor to List Equipment):
Lessee agrees that it will not list any of such Equipment for
property tax purposes or report any property tax assessed against
such Equipment until otherwise directed in writing by Lessor.
Upon receipt of any property tax bill pertaining to such
Equipment from the appropriate taxing authority, Lessor will pay
such tax and will invoice Lessee for the expense. Upon receipt
of such invoice, Lessee will promptly reimburse Lessor for such
expense;
OPTION 2 / / Lessee's Initials:
----- -----
(Applicable in Jurisdictions Permitting Lessee to List
Equipment): Lessee agrees that it will (a) list all such
Equipment, (b) report all property taxes assessed against such
Equipment and (c) pay all such taxes when due directly to the
appropriate taxing authority until Lessor shall otherwise direct
in writing.
LESSEE:
National Semiconductor Corporation
By:
-----------------------------
Title: Assistant Treasurer
--------------------------
Date: December 13, 1994
--------------------------
ELECTRONIC AND TEST EQUIPMENT SCHEDULE
SCHEDULE NO. 007
DATED THIS DECEMBER 13, 1994
TO MASTER LEASE AGREEMENT
DATED AS OF DECEMBER 13, 1994
Lessor & Mailing Address: Lessee & Mailing Address:
General Electric Capital Corporation National Semiconductor Corporation
2200 Powell Street, Suite 600 2900 Semiconductor Drive
Emeryville, CA 94608 Santa Clara, CA 95052
Capitalized terms not defined herein shall have the meanings
assigned to them in the Master Lease Agreement identified above
("Agreement"; said Agreement and this Schedule being collectively
referred to as "Lease").
A. Equipment
Pursuant to the terms of the Lease, Lessor agrees to acquire
and lease to Lessee the Equipment listed on Annex A attached
hereto and made a part hereof.
B. Financial Terms
1. Advance Rent (if any): $15,634.76
2. Capitalized Lessor's Cost: $1,100,272.07
3. Basic Term Lease Rate Factor: Mons. 1-36 1.42099,
Mons. 37-72 1.73644
4. Daily Lease Rate Factor: Mons. 1-36 .04737, Mons.
37-72 .05788
5. Basic Term (No. of Months): 72
6. Basic Term Commencement Date: 01/03/95
7. Equipment Location: 333 Western Avenue, South
Portland, ME
8. Lessee Federal Tax ID No.: 952095071
9. Last Delivery Date:
10. First Termination Date: Sixty (60) months after
the Basic Term Commence Date.
C. Tax Benefits
Depreciation Deductions:
a. Depreciation Methods (check one):
X The 200% declining balance method, switching to
straight line method for the 1st taxable year for which
using the straight line method with respect to the adjusted
basis as of the beginning of such year will yield a larger
allowance; OR
____ The method determined by applying to the unadjusted
basis the applicable percentages set forth in Section
168(b)(1) of the Code, as in effect prior to the adoption of
the Tax Reform Act of 1986.
b. Recovery Period: Five Years
c. Basis: 100% of Capitalized Lessor's Cost.
D. Rent
1. Interim Rent. For the period from and including the
Lease Commencement Date to the Basic Term Commencement
Date ("Interim Period"), Lessee shall pay as rent
("Interim Rent") for each unit of Equipment, an amount
equal to (a) the product of the "Prime Rate" as
published in the "Money Rates" column of the Wall
Street Journal, Western Edition, on the business day
preceding the Acceptance Date, times the Capitalized
Lessor's Cost of such unit times the number of days in
the Interim Period, divided by (b) 360. Interim Rent
shall be on 12/13/94 .
2. Basic Term Rent. Commencing on 01/03/95
and on the same day of each month thereafter
(each, a "Rent Payment Date") during the Basic Term,
Lessee shall pay as rent ("Basic Term Rent") the
product of the Basic Term Lease Rate Factor times the
Capitalized Lessor's Cost of all Equipment on this
Schedule.
3. [Deleted]
E. Insurance
1. Public Liability: $1,000,000 total liability per
occurrence.
2. Casualty and Property Damage: An amount equal to the
higher of the Stipulated Loss Value or the full
replacement cost of the Equipment.
F. Modifications and Additions to Lease
For purposes of this Schedule only, the Agreement is amended
as follows:
1. Section I(b) of the Agreement is hereby deleted in its
entirety and the following substituted in its stead:
(b) The obligation of Lessor to purchase the Equipment
from Lessee and to lease the same to Lessee shall be
subject to receipt by Lessor, on or prior to the
earlier of the Lease Commencement Date or Last Delivery
Date therefor, of each of the following documents in
form and substance satisfactory to Lessor: (i) a
Schedule relating to the Equipment then to be leased
hereunder, (ii) a Bill of Sale, in the form of Annex B
to the applicable Schedule, transferring title to the
Equipment to Lessor, (iii) evidence of insurance which
complies with the requirements of Section X, and (iv)
such other documents as Lessor may reasonably request.
Simultaneously with the execution of the Bill of Sale,
Lessee shall also execute a Certificate of Acceptance,
in the form of Annex C to the applicable Schedule,
covering all of the Equipment described in the Bill of
Sale.
2. Section VI(a) shall be deleted and the following
substituted in its stead:
(a) The parties acknowledge that this is a
sale/leaseback transaction and the Equipment is in
Lessee's possession as of the Lease Commencement
Date.
3. Section VII of the Lease is amended by adding the
following as the third sentence in subsection (a):
Lessee agrees that upon return of the Equipment,
it will be in good condition and working order, giving
consideration to reasonable wear and tear and the age
of the Equipment. Lessee shall, if requested by Lessor
and if reasonably possible, obtain a service report
from the manufacturer attesting to such condition.
4. Each reference contained in this Agreement to:
(a) "Adverse Environmental Condition" shall refer to
(i) the existence or the continuation of the existence,
of an Environmental Emission (including, without
limitation, a sudden or non-sudden accidental or
non-accidental Environmental Emission), of, or exposure
to, any substance, chemical, material, pollutant,
Contaminant, odor or audible noise or other release or
emission in, into or onto the environment (including,
without limitation, the air, ground, water or any
surface) at, in, by, from or related to any Equipment
from the time it leaves the Supplier's possession for
delivery to lessee until the time it is delivered to
Lessor, (ii) the environmental aspect of the
transportation, storage, treatment or disposal of
materials in connection with the operation of any
Equipment by Lessee or Lessee's agents or (iii) the
violation, or alleged violation by Lessee of any
statutes, ordinances, orders, rules regulations,
permits or licenses of, by or from any governmental
authority, agency or court relating to environmental
matters connected with any Equipment.
(b) "Affiliate" shall refer, with respect to any given
Person, to any Person that directly or indirectly
through one or more intermediaries, controls, or is
controlled by, or is under common control with, such
Person.
(c) "Contaminant" shall refer to those substances
which are regulated by or form the basis of liability
under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls
("PBCs"), and radioactive substances, or other material
or substance which has in the past or could in the
future constitute a health, safety or environmental
hazard to any Person, property or natural resources.
(d) "Environmental Claim" shall refer to any
accusation, allegation, notice of violation, claim,
demand, abatement or other order on direction
(conditional or otherwise) by any governmental
authority or any Person for person injury (including
sickness, disease or death), tangible or intangible
property damage, damage to the environment or other
adverse effects on the environment, or for fines,
penalties or restrictions, resulting from or based upon
any Adverse Environmental Condition.
(e) "Environmental Emission" shall refer to any actual
or threatened release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge,
dispersal, leaching or migration into the indoor or
outdoor environment, or into or out of any of the
Equipment, including, without limitation, the movement
of any Contaminant or other substance through or in the
air, soil, surface water, groundwater or property.
(f) "Environmental Law" shall mean any federal,
foreign, state or local law, rule or regulation
pertaining to the protection of the environment,
including, but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act
("CERCLA") (42 U.S.C. Section 9601 et seq.), the
Hazardous Material Transportation Act (49 U.S.C.
Section 1801 et seq.), the Federal Water Pollution
Control Act (33 U.S.C. Section 1251 et seq.), the
Resource Conversation and Recovery Act (42 U.S.C.
Section 6901 et seq.), the Clean Air Act (42 U.S.C.
Section 7401 et seq.), the Toxic Substances Control Act
(15 U.S.C. Section 2601 et seq.), the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C.
Section 1361 et seq.), and the Occupational Safety and
Health Act (19 U.S.C. section 651 et seq.), as these
laws have been amended or supplemented, and any
analogous foreign, federal, state or local statutes,
and the regulation promulgated pursuant thereto.
(g) "Environmental Loss" shall mean any loss, cost,
damage, liability, deficiency, fine, penalty or expense
(including without limitation, reasonable attorneys'
fees, engineering and other professional or expert
fees), investigation, removal, cleanup and remedial
costs (voluntarily or involuntarily incurred) and
damages to, loss of the use of or decrease in value of
the Equipment arising out of or related to any Adverse
Environmental Condition.
(h) "Person" shall include any individual,
partnership, corporation, trust, unincorporated
organization, government or department or agency
thereof and any other entity.
5. Lessee shall fully and promptly pay, perform,
discharge, defend, indemnify and hold harmless Lessor and
its Affiliates, successors and assigns, directors, officers,
employees and agents from and against any Environmental
Claim or Environmental Loss. Defense and indemnification
under this Section is conditioned upon Lessor giving Lessee
timely written notice of any claim against which Lessor
wishes to be indemnified hereunder (unless Lessee learns of
any such claim from a third party, or unless Lessor does not
learn of such claim until such time as Lessor, acting
prudently on its own behalf, would be precluded from
defending by applicable law or rules), and Lessor giving
Lessee necessary and appropriate information and assistance
in the defense of same. Lessee's obligation to pay or
reimburse reasonable fees of counsel selected by Lessor to
defend any such claim shall be conditioned upon Lessee's
approval of such counsel, which approval shall not be
unreasonably withheld or delayed. Lessor shall provide
Lessee with periodic status reports on the defense or
settlement of such claim, upon Lessee's reasonable request,
and Lessor shall seek Lessee's consent to a proposed
settlement of a claim. If Lessee does not consent to a
proposed settlement of a claim, it shall advise Lessor of
its specific objections to the proposed settlement and shall
identify with particularity the terms, if any, upon which it
would consent to a settlement of the claim. If Lessor
settles any such claim without Lessee's consent and Lessee
objects to indemnifying Lessor for such settlement, then
Lessor and Lessee agree to submit the question of the
reasonableness of the settlement to binding arbitration. In
such arbitration, the arbitrator shall be jointly selected
by the parties (or, if they cannot agree on an arbitrator,
one shall be selected according to the rules of the American
Arbitration Association), and the arbitrator shall determine
to what extent, if any, Lessee shall indemnify Lessor for
both the settlement and any attorneys' fees incurred in
connection with the defense and settlement of the claim.
The decision of the arbitrator shall be final and binding
upon both parties, and neither party shall seek recourse to
a court of law or other authorities to appeal for revision
of such decision or any other ruling of the arbitrator. The
cost of the arbitration shall be borne by both parties in
equal amounts.
6. ADDITIONS AND ALTERATIONS. Subject to the conditions
set out in this paragraph, Lessor hereby agrees, if so
requested by Lessee, to purchase alterations, additions or
Features for the Equipment and lease them to Lessee under
the same terms and conditions and with the same expiration
date of the Initial Term as the applicable Equipment
Schedule, and at a periodic Rental Payment that shall be
mutually satisfactory to Lessor and Lessee. Lessor's
obligation to purchase and lease such alterations, additions
or Features shall be conditioned on the following: no
default hereunder by Lessee shall have occurred and be
continuing; there shall have been no material adverse change
(as determined by Lessor in its reasonable exercise of
business judgment) in Lessee's financial condition or
business prospects from the Commencement Date of the
applicable Schedule; and such alterations, additions or
Features shall be acceptable for acquisition and lease under
Lessor's then standard business practices. Lessee may
obtain financing for such alterations, additions or Features
from third parties provided that (i) such alterations,
additions or Features can be undone or removed without
damaging or impairing the functionality, utility or value of
the Equipment as compared to Equipment on which such
alterations, additions or Features had never been installed,
and (ii) such financing shall not in any event create a
security interest in, or lien or other encumbrance on,
Lessor's Equipment.
7. EARLY PURCHASE OPTION:
(a) Provided that the Lease has not been earlier
terminated and provided further that Lessee is not in
default under the Lease or any other agreement between
Lessor and Lessee, Lessee may, UPON AT LEAST 30 DAYS
BUT NO MORE THAN 270 DAYS PRIOR WRITTEN NOTICE TO
LESSOR OR LESSEE'S IRREVOCABLE ELECTION TO EXERCISE
SUCH OPTION, purchase all (but not less than all) of
the Equipment listed and described in this Schedule on
the rent payment date (the "Early Purchase Date") which
is 60 months from the Basic Term Commencement
Date of the Schedule for a price equal to $370,736.67
(the "FMV Early Option Price"), plus all
applicable sales taxes on an AS IS BASIS. Lessor and
Lessee agree that the FMV Early Option Price is a
reasonable prediction of the Fair Market Value (as such
term is defined in Section XIX(b) hereof) of the
Equipment at the time the option is exercisable.
Lessor and Lessee agree that if Lessee makes any
non-severable improvement to the Equipment which is not
leased by Lessor to Lessee and which increases the
value of the Equipment and is not required or permitted
by Sections VII or XI of the Lease prior to lease
expiration, then at the time of such option being
exercised, Lessor and Lessee shall adjust the purchase
price to reflect any addition to the price anticipated
to result from such improvement. (The purchase option
granted by this subsection shall be referred to herein
as the "Early Purchase Option".)
(b) If Lessee exercises its Early Purchase Option with
respect to the Equipment leased hereunder, then on the
Early Purchase Option Date, Lessee shall pay to Lessor
any Rent and other sums due and unpaid on the Early
Purchase Option Date and Lessee shall pay the FMV Early
Option Price, plus all applicable sales taxes, to
Lessor in cash.
Except as expressly modified hereby, all terms and provisions of
the Agreement shall remain in full force and effect. This
Schedule is not binding or effective with respect to the
Agreement or Equipment until executed on behalf of Lessor and
Lessee by authorized representatives of Lessor and Lessee,
respectively.
IN WITNESS WHEREOF, Lessee and Lessor have caused this
Schedule to be executed by their duly authorized representatives
as of the date first above written.
LESSEE: LESSOR:
NATIONAL SEMICONDUCTOR GENERAL ELECTRIC CAPITAL
CORPORATION CORPORATION
By:______________________________ By:____________________________
_________________________________ _________________________________
(Typed or printed name and title) (Typed or printed name and title)
ADDENDUM NO, 01
TO SCHEDULE NO. 001,002,003,004,005,006,007&008
TO
MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
RETURN CONDITIONS - ELECTRONICS EQUIPMENT
In addition to the provisions provided for in Section XI of
the Lease, and provided that the Lessee has not elected its
option to purchase the Equipment, Lessee shall, at its expense:
(A) Upon the request of Lessor, Lessee shall no later than
180 days prior to the expiration or other termination of the
least provide:
1. a detailed inventory of the Equipment (including
the model and serial number of each major component thereof),
including, without limitation, all internal circuit boards,
module boards, and software features;
2. a complete and current set of all manuals, blue
prints, process flow diagrams, equipment configuration diagrams,
maintenance records and other data reasonably requested by Lessor
concerning the configuration and operation of the Equipment; and
(B) Upon the request of Lessor, Lessee shall, not later
than 120 days prior to the expiration or other termination of the
Lease make the Equipment available for on-site operational
inspection by persons designated by the Lessor who shall be duly
qualified to inspect the Equipment in its operational
environment.
(C) All Equipment shall be cleaned and treated with respect
to rust, corrosion and appearance in accordance with
manufacturer's recommendations and consistent with the best
practices of dealers in used equipment similar to the Equipment;
shall have no Lessee installed markings of labels which are not
necessary for the operation, maintenance or repair of the
Equipment, and shall be in compliance with all applicable
government laws, rules and regulations.
(D) The Equipment shall be de-installed and packed in
accordance with manufacturer's recommendations. Without
limitation, all internal fluids will either be drained and
disposed of or filled and secured in accordance with
manufacturer's recommendations and applicable government laws,
rules and regulations.
(E) The Equipment will be transported in accordance with
manufacturer's recommendations and applicable government laws,
rules and regulations to not more than one individual location
within the continental United States selected by Lessor.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL NATIONAL SEMICONDUCTOR
CORPORATION CORPORATION
By:_________________________ By:_________________________
ANNEX A
TO
SCHEDULE NO. 007
TO MASTER LEASE AGREEMENT
DATED AS OF
DESCRIPTION OF EQUIPMENT
INVOICE INV.
VENDOR NAME # DATE EQUIPMENT COST
- ------------- --------- --------- ------------------------------------------------------------ ---------------
Applied 298232 & 3/30/94 Refurbished 5000 TEOS Three Chamber System S/N 5268 $ 1,072,500.00
Materials, 330809 Freight: $ 4,057.07
Inc.
Ebara Tech., 105212 4/13/94 (1) 40x20W/CLRS, 208V, 3/8" Exhpurge S/N 916651 $ 23,715.00
Inc.
INVOICE COST: $1,100,272.07
Initials: ------------------------------ -------------------------------
Lessor Lessee
ANNEX B
TO
SCHEDULE NO. 007
TO MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
BILL OF SALE
National Semiconductor Corporation (the "Seller"), in
consideration of the sum of One Million One Hundred Thousand Two
Hundred Seventy-two Dollars and Seven Cents Dollars
($1,100,272.07) plus sales taxes in the amount of zero Dollars
($00.00) (if exemption from sales tax is claimed, an exemption
certificate must be furnished to Buyer herewith), paid by General
Electric Capital Corporation (the "Buyer"), receipt of which is
acknowledged, hereby grants, sells, assigns, transfers and
delivers to Buyer the equipment (the "Equipment") described in
the above schedule (said schedule and related lease being
collectively referred to as "Lease"), along with whatever claims
and rights Seller may have against the manufacturer and/or
supplier of the Equipment (the "Supplier"), including but not
limited to all warranties and representations. At Buyer's
request, Seller will cause Supplier to execute the attached
Acknowledgment.
Buyer is purchasing the Equipment for leasing back to Seller
pursuant to the Lease. Seller represents and warrants to Buyer
that (1) Buyer will acquire by the terms of this Bill of Sale
good title to the Equipment free from all liens and encumbrances
whatsoever; (2) Seller has the right to sell the Equipment; and
(3) the Equipment has been delivered to Seller in good order and
condition, and conforms to the specifications, requirements and
standards applicable thereto; and (4) the equipment has been
accurately labeled, consistent with the requirements of 40 CFR
part 82 Subpart E, with respect to products manufactured with a
controlled (ozone-depleting) substance.
Seller agrees to save and hold harmless Buyer from and against
any and all federal, state, municipal and local license fees and
taxes of any kind or nature, including, without limiting the
generality of the foregoing, any and all excise, personal
property, use and sales taxes, and from and against any and all
liabilities, obligations, losses, damages, penalties, claims,
actions and suits resulting therefrom and imposed upon, incurred
by or asserted against Buyer as a consequence of the sale of the
Equipment to Buyer.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale this
thirteenth day of December ,1994.
SELLER:
National Semiconductor
Corporation
By:________________________
Title: Assistant Treasurer
------------------------
- ------
ANNEX C
TO
SCHEDULE NO. 007
TO MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
CERTIFICATE OF ACCEPTANCE
To: General Electric Capital Corporation ("Lessor")
Pursuant to the provisions of the above schedule and lease
(collectively, the "Lease"), Lessee hereby certifies and warrants
that (a) all Equipment listed in the related Bill of Sale is in
good condition and appearance, installed (if applicable) and in
working order; and (b) Lessee accepts the Equipment for all
purposes of the Lease, the purchase documents and all attendant
documents.
Lessee does further certify that as of the date hereof (i)
Lessee is not in default under the Lease; (ii) the
representations and warranties made by Lessee pursuant to or
under the Lease are true and correct on the date hereof and (iii)
Lessee has reviewed and approves of the purchase documents for
the Equipment, if any.
DESCRIPTION OF EQUIPMENT
Type and
Manufacturer Serial Model of Number of Cost Per
Numbers Equipment Units Unit
See Annex A Attached hereto and Made A Part Hereof
________________________________
Authorized Representative
Dated: December 13,
----------------------
1994
- --------
ANNEX D
TO
SCHEDULE NO 007
TO MASTER LEASE AGREEMENT
DATED AS OF December 13, 1994
STIPULATED LOSS AND TERMINATION VALUE TABLE*
TERMINATION VALUE STIPULATED LOSS VALUE
RENTAL PERCENTAGE PERCENTAGE
- ------------- ---------------------- --------------------------
1 103.787 107.868
2 103.089 107.211
3 102.384 106.546
4 101.664 105.867
5 100.931 105.175
6 100.185 104.469
7 99.425 103.750
8 98.657 103.022
9 97.876 102.281
10 97.080 101.526
11 96.277 100.763
12 95.459 99.986
13 94.628 99.196
14 93.789 98.397
15 92.941 97.589
16 92.083 96.773
17 91.217 95.946
18 90.341 95.111
19 89.455 94.266
20 88.561 93.413
21 87.658 92.550
22 86.745 91.677
23 85.823 90.796
24 84.892 89.905
25 83.951 89.005
26 83.001 88.096
27 82.043 87.178
28 81.077 86.253
29 80.104 85.321
30 79.125 84.382
31 78.138 83.436
32 77.143 82.480
33 76.140 81.518
34 75.130 80.549
35 74.111 79.570
36 73.085 78.585
37 72.049 77.589
38 70.686 76.267
39 69.311 74.932
40 67.927 73.589
41 66.535 72.238
42 65.134 70.878
43 63.725 69.509
44 62.304 68.128
45 60.873 66.738
TERMINATION VALUE STIPULATED LOSS VALUE
RENTAL PERCENTAGE PERCENTAGE
- ------------- ---------------------- --------------------------
46 59.434 65.430
47 57.983 63.929
48 56.523 62.509
49 55.054 61.081
50 53.572 59.640
51 52.078 58.187
52 50.578 56.726
53 49.070 55.259
54 47.554 53.784
55 46.032 52.302
56 44.497 50.808
57 42.955 49.306 cont.
PAYMENT AUTHORIZATION
General Electric Capital Corporation
2200 Powell Street Suite 600
Emeryville, CA 94608
You are hereby authorized to pay the proceeds from our
sale to you of certain Equipment as evidenced on the attached
Bill of Sale to the following parties in the amount(s) designated
below.
National Semiconductor $1,100,272.07
Corporation
2900 Semiconductor Drive
Santa Clara, CA 95052-8090
For reimbursement of funds
previously paid to various
vendors for equipment plus plus
attachments and accessories
including labor described on
Annex A attached hereto and
made a part hereof.
Very truly yours,
National Semiconductor Corporation
By:_____________________________
Title: Assistant Treasurer
------------------------------
- --------------------------
Date: December 13, 1994
-------------------------------
- --------------------------
CERTIFICATE CONCERNING
PAYMENT OF PERSONAL PROPERTY TAXES
To: General Electric Capital Corporation
To insure Lessee's compliance with the provisions of a
Master Lease Agreement dated as of December 13, 1994 (the
"Lease") by and between the undersigned as Lessee and General
Electric Capital Corporation as Lessor, Lessee hereby agrees to
one of the following options with respect to the payment of
personal property taxes on the Equipment described in Annex A to
the Lease, such agreement to be conclusively evidenced by the
initials and signature of an authorized agent of Lessee in the
appropriate spaces provided below:
Please choose one of the options below by placing an "X" in the
appropriate box and initialing where indicated. Initial ONLY ONE
Choice of Option
OPTION 1 Lessee's Initials:
(Applicable in Jurisdictions Requiring Lessor to List Equipment):
Lessee agrees that it will not list any of such Equipment for
property tax purposes or report any property tax assessed against
such Equipment until otherwise directed in writing by Lessor.
Upon receipt of any property tax bill pertaining to such
Equipment from the appropriate taxing authority, Lessor will pay
such tax and will invoice Lessee for the expense. Upon receipt
of such invoice, Lessee will promptly reimburse Lessor for such
expense;
OPTION 2 Lessee's Initials:
(Applicable in Jurisdictions Permitting Lessee to List
Equipment): Lessee agrees that it will (a) list all such
Equipment, (b) report all property taxes assessed against such
Equipment and (c) pay all such taxes when due directly to the
appropriate taxing authority until Lessor shall otherwise direct
in writing.
LESSEE:
National Semiconductor Corporation
By:____________________________
Title: Assistant Treasurer
-------------------------------
- -------------------------
Date: December 13, 1994
--------------------------------
- -------------------------