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EXHIBIT 10.40
FIRST AMENDMENT TO PARTICIPATION AGREEMENT
AND APPENDIX 1
This FIRST AMENDMENT TO PARTICIPATION AGREEMENT and APPENDIX 1 TO
PARTICIPATION AGREEMENT, MASTER LEASE AND CONSTRUCTION DEED OF TRUST (this
"Amendment"), dated as of February 20, 1998, is by and among PEOPLESOFT, INC., a
Delaware corporation, as Lessee (together with its permitted successors and
assigns, the "Lessee"); LEASE PLAN NORTH AMERICA, INC., an Illinois corporation,
as Lessor (together with its permitted successors and assigns, the "Lessor");
ABN AMRO BANK N.V., SAN FRANCISCO INTERNATIONAL BRANCH, as a Participant, CREDIT
LYONNAIS LOS ANGELES BRANCH, as a Participant, THE INDUSTRIAL BANK OF JAPAN,
LIMITED SAN FRANCISCO AGENCY, as a Participant, KEYBANK NATIONAL ASSOCIATION, as
a Participant, MELLON BANK, N.A., as a Participant, THE DAI-ICHI KANGYO BANK,
LIMITED SAN FRANCISCO AGENCY, as a Participant (together with their permitted
successors and assigns, each a "Participant" and collectively the
"Participants"); and ABN AMRO BANK N.V., SAN FRANCISCO INTERNATIONAL BRANCH, as
Agent (in such capacity, together with its successors in such capacity, the
"Agent") for the Participants.
RECITALS:
A. The Lessee, the Lessor, the Participants and the Agent are parties to
that certain Participation Agreement dated as of December 4, 1996 (as amended,
restated, supplemented or otherwise modified from time to time, the
"Participation Agreement");
B. Appendix 1 to Participation Agreement, Master Lease and Construction
Deed of Trust (as amended, restated, supplemented or otherwise modified from
time to time,"Appendix 1") is part of the Participation Agreement, the Lease and
the Mortgage and contains defined terms and rules of construction applicable to
the Operative Documents;
C. The parties desire to amend certain provisions of the Participation
Agreement and Appendix 1, all on the terms and conditions set forth in this
Amendment; and
D. Each capitalized term used in this Amendment and not otherwise
defined in this Amendment shall have the meaning ascribed thereto in Appendix 1;
this Amendment shall constitute an Operative Document; and these Recitals shall
be construed as part of this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, the parties hereto agree as follows:
1. Amendments to the Participation Agreement. The Participation
Agreement is hereby amended as follows:
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(a) The Participation Agreement is hereby amended by deleting
Section 3.4 in its entirety and replacing it with the following:
"SECTION 3.4. Procedures for Advances.
(a) Funding Request. With respect to each funding of an Advance,
the Lessee shall give the Lessor and the Agent prior written notice not
later than 11:00 a.m., New York time, four (4) Business Days (in the
case of a Fixed Rate Advance) or three (3) Business Days in the case of
a Eurodollar Rate Advance) prior to the proposed Funding Date, pursuant,
in each case, to a Funding Request substantially in the form of Exhibit
B-1 (a "Funding Request"), specifying (i) the proposed Funding Date,
(ii) the amount and purpose of the Advance requested, (iii) whether such
Advance is to be comprised of a Eurodollar Rate Advance or a Fixed Rate
Advance, (iv) the initial Interest Period for any such Eurodollar Rate
Advance, (v) the payee of such Advance, and (vi) the allocation of such
Advance to the respective Land Interest Acquisition Cost and Property
Improvements Costs of the Property (and pro rata portions of the related
remittances from the Participants shall likewise be deemed to be so
allocated). The Agent shall promptly forward a copy of such Funding
Request to each Participant. The Lessee shall not request more than one
Funding Date during any calendar month. Each Eurodollar Rate Advance
(other than an Interest Payment Advance) shall be in a minimum amount of
$1,000,000 or in amounts of $100,000 in excess thereof. Subject to the
satisfaction or waiver of the conditions precedent to such Advance set
forth in Section 3.4 and Section 6, each Participant shall purchase its
Participation Interest in such Advance by making available to the Lessor
its proportionate share of such Advance in immediately available federal
funds by wire transfer to the Agent for deposit to the Lessee's demand
deposit account with the Agent not later than 1:00 p.m. New York time,
on the applicable Funding Date. Upon (i) the Lessee's receipt of the
funds provided by the Participants with respect to an Advance, and (ii)
satisfaction or waiver of the conditions precedent to such Advance set
forth in Section 6, the Lessee shall (1) in the case of an Advance for
the acquisition of the Land Interest, pay the acquisition price for such
Land Interest to the Existing Owner, and (2) in the case of other
Advances, pay or retain as payment or reimbursement of, Property
Improvements Costs, in each case from the funds provided by the
Participants for such Advance.
(b) Procedure for Fixed Rate Advances.
(i) When the Lessee wishes to request the Lessor to make, and the
Participants to submit through the Agent an offer to purchase
Participation Interests in, a Fixed Rate Advance or convert a
Eurodollar Rate Advance to a Fixed Rate Advance or continue a
Fixed Rate Advance as another Fixed Rate Advance, it shall
transmit to the Agent by facsimile transmission a request in
substantially the form of Exhibit B-2 (a "Fixed Rate Request") so
as to be received no later than 12:00 noon (New York
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time) four (4) Business Days prior to the date of the proposed
Fixed Rate Advance, conversion or continuation specifying:
(1) the proposed date of such Advance, conversion or
continuation, which shall be a Business Day and,
(A) if a conversion from a Eurodollar Rate Advance,
shall be the last day of the applicable Interest
Period with respect to the Advance to be converted
or (B) if a continuation of a Fixed Rate Advance,
shall be the last day of the Fixed Rate Period
applicable thereto;
(2) the aggregate amount of such Fixed Rate Advance,
conversion or continuation, which shall be a
minimum amount of $5,000,000; and
(3) the maturity date with respect thereto (the "Fixed
Rate Maturity Date"), which shall be a Business Day
not later than the Maturity Date.
(ii) Upon receipt of a Fixed Rate Request from the Lessee, the
Agent will promptly forward such Fixed Rate Request to the
Participants by facsimile transmission.
(iii) (1) Each Participant, upon receipt of a Fixed Rate
Request, shall submit an offer (a "Fixed Rate
Offer") to purchase its Participation Interest in
the applicable Fixed Rate Advance, convert its
Participation Interest in the applicable Eurodollar
Rate Advance to the requested Fixed Rate Advance or
continue its Participation Interest in the
applicable Fixed Rate Advance to the requested
Fixed Rate Advance in response to such Fixed Rate
Request. Each Fixed Rate Offer must comply with the
requirements of this subsection (iii) and must be
submitted to the Agent by facsimile transmission
not later than 11:00 a.m. (New York time) three (3)
Business Days prior to the proposed Funding Date,
conversion date or continuation date.
(2) Each Fixed Rate Offer shall specify:
(A) the proposed date of the Advance, conversion
or continuation;
(B) the principal amount of such Participant's
Participation Interest in the Advance,
conversion or continuation for which such
Fixed Rate Offer is being made, which
principal amount must be equal
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to such Participant's pro rata share of the
aggregate amount requested;
(C) the fixed rate per annum (rounded upward to
the nearest 1/100th of 1%) offered for such
Fixed Rate Advance; and
(D) the Fixed Rate Maturity Date with respect to
such Fixed Rate Advance (which shall be the
date requested by the Lessee) (the period
from the date any Fixed Rate Advance is made
to its Fixed Rate Maturity Date is referred
to as a "Fixed Rate Period").
(iv) Promptly on receipt on the third Business Day prior to the
proposed Funding Date or conversion or continuation date, the
Agent will notify the Lessee of the terms of all Fixed Rate
Offers submitted by the Participants with respect to the Fixed
Rate Request. The Agent's notice to the Lessee shall specify (1)
the aggregate amount for which offers have been received; and (2)
the respective amounts and interest rates, as the case may be,
and the weighted average interest rate so offered. Subject only
to the provisions of Section 6 and to the Lessee's right to
reject all Fixed Rate Offers set forth in Section 3.4(b)(v), any
Fixed Rate Offer shall be irrevocable.
(v) Not later than 11:30 a.m. (New York time) on the proposed
Funding Date or conversion or continuation date, the Lessee shall
notify the Agent of its acceptance or non-acceptance of the Fixed
Rate Offers which it has received pursuant to Section 3.4(b)(iv).
The Lessee shall be under no obligation to accept any offer, but
if any offer is rejected, all Fixed Rate Offers with respect to
the same Fixed Rate Request must be rejected. If the Lessee
accepts any Fixed Rate Offer, the Lessee must accept all Fixed
Rate Offers with respect to the same Fixed Rate Request only in
whole. If the Fixed Rate Offers are rejected or if no response is
received from the Lessee, the Lessee may elect to have the
applicable Advance be a Eurodollar Rate Advance pursuant to
Section 3.4(a) or (c) hereof provided the conditions thereto are
met. Otherwise, the Advance that was the subject of such Fixed
Rate Request shall be a Eurodollar Rate Advance with an Interest
Period of one month commencing on the applicable Funding Date or
proposed conversion date, provided, that no Interest Period shall
commence or terminate on or after the Maturity Date.
(c) Conversion and Continuation Procedures. The Lessee may (i)(A)
on the last day of any Fixed Rate Period, convert all or any part of any
Fixed Rate Advance to a Eurodollar Rate Advance or (B) on the last day
of any Interest Period, continue the applicable Eurodollar Rate Advance
as a Eurodollar Rate Advance for a successive Interest Period, by giving
notice to the Agent by 12:00
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noon, New York time, on a day which is at least three Business Days
prior to the proposed date of such conversion or continuation or (ii) on
the last day of any Fixed Rate Period, continue all or any part of any
Fixed Rate Advance as another Fixed Rate Advance by giving the notice
and following the procedure set forth in Section 3.4(b). Each such
notice with respect to the conversion into or continuation of a
Eurodollar Rate Advance shall be irrevocable, shall be effective upon
receipt by the Agent, shall be in writing (or by telephone to be
confirmed in writing by the Lessee on the Business Day such telephonic
notice was given), shall specify the Type, the date and amount of the
conversion or continuation, the Advances to be converted or continued
and the Interest Period applicable thereto. If the Lessee fails to give
appropriate notice pursuant to this Section 3.4(c) or Section 3.4(b),
such Advance shall automatically become a Eurodollar Rate Advance with
an Interest Period of one month at the end of its then current Fixed
Rate Period or Interest Period, provided, that no Interest Period shall
commence or terminate on or after the Maturity Date. Promptly upon
receipt of each notice of conversion or continuation, the Agent shall
advise each Participant thereof. No Fixed Rate Advance shall be
converted or continued on any day other than the last day of the Fixed
Rate Period relating to such Advance.
(b) The Participation Agreement is further amended by deleting
Section 3.8 in its entirety and replacing it with the following:
"SECTION 3.8. Types of Advances; Interest Rates; Procedures.
(a) Each Advance shall be comprised of either a Fixed Rate
Advance or a Eurodollar Rate Advance (each being herein called a "Type"
of Advance), as the Lessee shall specify in the related Funding Request
or notice of conversion or continuation pursuant to Section 3.4. Each
Fixed Rate Advance shall bear interest for each day during the Fixed
Rate Period with respect thereto at a rate per annum equal to the Fixed
Rate determined with respect to such Fixed Rate Period plus the
Applicable Margin.
(b) Each Eurodollar Rate Advance shall bear interest for each day
during each Interest Period with respect thereto at a rate per annum
equal to the Eurodollar Rate determined for such day plus the Applicable
Margin; provided, however, that:
(i) each Advance outstanding during the period beginning on the
Closing Date and ending on the date three (3) Business Days
thereafter shall bear interest during such period at a rate per
annum equal to the Alternate Base Rate plus the Applicable
Margin; and
(ii) an Advance shall bear interest at a rate per annum equal to
the Alternate Base Rate plus the Applicable Margin to the extent
expressly required by the terms hereof.
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The Lessee shall give irrevocable written notice to the Agent, in
accordance with Section 3.4 and the applicable provisions of the term
"Interest Period" set forth in Appendix 1, of the length of each
Interest Period to be applicable to each Eurodollar Rate Advance, such
notice to be given (i) for the initial Interest Period for each
Eurodollar Rate Advance, in the Acquisition Request or Funding Request,
as the case may be, for such Eurodollar Rate Advance and (ii) for each
subsequent Interest Period for each Eurodollar Rate Advance, at least
three (3) Business Days prior to the last day of the immediately
preceding Interest Period.
(c) If all or a portion of (i) the amount of any Advance,
(ii) any interest payable thereon or (iii) any other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a
rate per annum which is equal to the Overdue Rate.
(d) Interest shall be payable in immediately available
funds (except as provided in paragraph (e) below) in arrears on each
Scheduled Payment Date, provided that (i) interest accruing pursuant to
paragraph (c) of this Section 3.8 shall be payable from time to time on
demand and (ii) each prepayment of Advances shall be accompanied by
accrued interest to the date of such prepayment on the amount of
Advances so prepaid plus amounts payable under Section 13.6 hereof. The
Lessor shall provide the Lessee with not less than five (5) days' notice
of the amount of Basic Rent due on any Scheduled Payment Date.
(e) On each date which is three (3) Business Days prior to
each Scheduled Payment Date during the Construction Period, unless the
Lessee notifies the Lessor prior to such date that the Lessee desires to
pay in cash on the Schedule Payment Date the accrued interest on
Advances allocated to Property Improvement Costs during the Construction
Period and makes such cash payment on the Scheduled Payment Date, the
Lessee shall be deemed to have requested an Advance comprised of an
Interest Payment Advance pursuant to Section 3.4 and the Lessor shall be
deemed to have requested a purchase pursuant to Section 3.2 of
Participation Interests in such Advance in an amount equal to the
aggregate amount of the Basic Rent due and payable on such date with
respect to accrued interest on outstanding Advances. Each Interest
Payment Advance shall initially be deemed to be a Eurodollar Rate
Advance having a one month Interest Period. The Funding Date with
respect to any such Interest Payment Advance and purchase of
Participation Interests therein shall be the relevant Scheduled Payment
Date (provided that such Advance and the purchase of such Participation
Interests shall be subject to satisfaction of the applicable conditions
precedent set forth in Section 6) and the proceeds of such payment shall
be applied to pay such accrued interest. On each such Funding Date, the
Property Cost shall be increased by an amount equal to the Basic Rent
paid on such date with respect to such Property with the proceeds of
such payment, and the Land Interest Acquisition Cost and Property
Improvements Costs shall be increased by their pro rata portions of such
Advance. The Lessor shall provide the Lessee on a monthly
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basis with a detailed statement or other form of confirmation showing
all deemed Interest Payment Advances made to the Lessee pursuant to this
Section 3.8(e)."
(c) The Participation Agreement is further amended by
deleting Section 3.9 in its entirety and replacing it with the
following:
"SECTION 3.9. Computation of Interest. (a) Whenever it is
calculated on the basis of the Alternate Base Rate, interest shall be
calculated on the basis of a 365- (or 366-, as the case may be) day year
for the actual days elapsed; and when ever it is calculated on the basis
of a Eurodollar Rate or a Fixed Rate, interest shall be calculated on
the basis of a 360-day year for the actual days elapsed. The Agent shall
as soon as practicable after the commencement of each Interest Period or
Fixed Rate Period notify the Lessor, the Lessee and the Participants of
each determination of a Eurodollar Rate or a Fixed Rate. Any change in
the interest rate on an Advance resulting from a change in the Alternate
Base Rate, the Eurocurrency Reserve Requirements or the Applicable
Margin shall become effective as of the opening of business on the day
on which such change becomes effective. The Agent shall as soon as
practicable notify the Lessor, the Lessee and the Participants of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Agent
pursuant to any provision of this Agreement shall be conclusive and
binding on the Lessor, the Lessee and the Participants in the absence of
manifest error. The Agent shall, at the request of such parties, deliver
to such parties a statement showing the quotations used by the Agent in
determining any interest rate pursuant to Section 3.9(a)."
(d) The Participation Agreement is further amended by
deleting Section 11.4 in its entirety and replacing it with the
following:
"SECTION 11.4.Refusal to Give Consents or Fund. If any
Participant declines to consent to any amendment, modification, waiver,
release or consent for which such Participant's consent is requested or
required by reason of this Agreement, or if any Participant fails to pay
any amount owed by it hereunder, the Lessor shall have the right, but
not the obligation and without limiting any other remedy of the Lessor,
to terminate such Participant's rights to receive any further payments
under Section 3 of this Agreement (other than payments required because
of the Lessor's collection of any Rent applied by the Lessor as
reimbursement for a Defaulted Amount or interest on a Defaulted Amount)
by paying such Participant a termination fee equal to the total of:
(i) all amounts actually advanced by such Participant to the
Lessor under Section 3.4 hereof before the termination;
excluding, however, any such amounts that were repaid to such
Participant before the
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termination by actual payments made to such Participant by the
Lessor of, or the Lessor's offset against, sums representing:
(A) Such Participant's Commitment Percentage
times any payments of the principal of any
Advance received by the Lessor under the
Lease; plus
(B) Such Participant's Commitment Percentage
times any sales proceeds received by the
Lessor under the Lease; and
(ii) such Participant's Participation Interest in any accrued but
unpaid Basic Rent owing with respect to Fixed Rate Advances and
such Participant's Commitment Percentage, times:
(A) the then accrued but unpaid Basic Rent owing
with respect to Eurodollar Rate Advances or
Advances bearing interest based upon the
Alternate Base Rate and Commitment Fees due
under the Lease and hereunder; plus
(B) interest on past due amounts described in
the preceding clauses (ii) and (ii)(A)
computed at the Federal Funds Effective
Rate; plus
(C) interest on any amounts (other than interest
itself) past due from the Lessee or its
designees under the Operative Documents,
computed at the Federal Funds
Effective Rate.
Such Participant's rights to receive payments equal to such
Participant's Commitment Percentage of or participation interest in any
Rent applied by the Lessor as reimbursement for a Defaulted Amount or
interest on a Defaulted Amount shall not be impaired or affected by any
termination contemplated in this Section 11.4; accordingly, the Lessor
shall not, as a condition to such a termination, be required to
reimburse such Participant for any payments such Participant has made in
connection with Defaulted Amounts pursuant to Section 3.3."
(e) The Participation Agreement is further amended by
deleting Section 13.6 in its entirety and replacing it with the
following:
"SECTION 13.6.Funding Losses. If any payment of any Eurodollar
Rate Advance or any portion of any Participation Interest therein is
made on any day other than the last day of an Interest Period applicable
thereto, or if any payment of any Fixed Rate Advance or any portion of
any Participation Interest therein is made on any day other than the
last day of the Fixed Rate Period
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applicable thereto, or if the Lessee fails to utilize the proceeds of
any purchase of Participation Interests after notice has been given to
any Participant in accordance with Section 3 or 4, the Lessee shall
reimburse each Participant within fifteen (15) days after demand for any
resulting loss, expense, breakage costs or swap breakage costs incurred
by it, including (without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties, provided that in
the case of a Eurodollar Rate Advance or a Fixed Rate Advance, such
Participant shall have delivered to the Lessee a certificate as to the
amount of such loss, expense or costs, which certificate shall be
conclusive in the absence of manifest error, and provided further that
in the case of a Eurodollar Rate Advance, such loss shall in no event
exceed the interest on such Advance which would have been payable for
the balance of such Interest Period, less the amount actually earned by
such Participant on such Advance."
(f) The Participation Agreement is further amended by
deleting Sections 13.11 and 13.12 in their entirety and replacing them
with the following:
"SECTION 13.11. Notice and Mitigation. Each demand for payment of
Supplemental Rent pursuant to Sections 13.6, 13.7, 13.9 or 13.10 must be
accompanied by a certificate of the Person claiming compensation (an
"Affected Person") setting forth in reasonable detail the computation of
such compensation (including the reasons therefor), which certificate
shall be conclusive and binding for all purposes absent manifest error.
Prior to demand by an Affected Person for Supplemental Rent pursuant to
Sections 13.6 (other than a demand relating to Fixed Rate Advances),
13.7, 13.9 or 13.10, such Affected Person agrees that it will use its
reasonable efforts to reduce and eliminate any claim for compensation
including, subject to Applicable Law, a change in applicable lending
office for this transaction; provided, however, that nothing herein
shall obligate an Affected Person to take any action which, in the
opinion of such Affected Person, is unlawful, or results in any
unreimbursed costs or expenses to such Affected Person, which costs or
expenses would not have been incurred but for such action. No Affected
Person shall be entitled to any compensation under this Section 13.11
with respect to Sections 13.6 (other than a demand relating to Fixed
Rate Advances), 13.7, 13.9 or 13.10 unless at the time it requests such
compensation it is the policy or general practice of such Affected
Person to demand compensation for comparable costs in similar
circumstances under comparable provisions of documents to which it is a
party.
SECTION 13.12.Substitution of Participant. If (i) the obligation
of any Participant to purchase or maintain its Participation Interest
has been suspended pursuant to this Section 13, or (ii) any Participant
has demanded compensation or given notice of its intention to demand
compensation under Section 13.11 with respect to Sections 13.6 (other
than a demand relating to Fixed Rate Advances), 13.7, 13.9 or 13.10, the
Lessee shall have the right, with the assistance of the Agent, to seek
one or more mutually satisfactory substitute banks
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or financial institutions (which may be one or more of the Participants)
to replace such Participant under the Operative Documents."
(g) The Participation Agreement is further amended by
deleting Exhibit B in its entirety and replacing it with Exhibit B-1 in
the form attached hereto as Exhibit A.
(h) The Participation Agreement is further amended by
adding a new Exhibit B-2 thereto in the form attached as Exhibit B.
(i) The Participation Agreement is further amended by (i)
deleting in the Table of Contents and list of Exhibits references to the
titles of Sections, Subsections and Exhibits deleted under this
Amendment and (ii) replacing them with the titles of the Sections,
Subsections and Exhibits added under this Amendment.
2. Amendments to Appendix 1. Appendix 1 is hereby amended as
follows (and each of the Lease, the Mortgage and each other Operative Document
incorporating Appendix 1 shall be deemed to be so amended):
(a) The following defined terms are hereby deleted in their
entirety and replaced with the corresponding terms set forth in Section
2(b) hereof: "Expiration Date," "Interest Period," "Maturity Date,"
"Participation Interest," "Renewal Term" and "Scheduled Payment Date."
(b) Appendix 1 is further amended by adding the following terms
in alphabetical order:
" 'Eurodollar Rate Advance' means any Advance bearing interest at a rate
per annum equal to the sum of (i) the Eurodollar Rate applicable to such Advance
plus (ii) the Applicable Margin.
'Expiration Date' means February 27, 2003, or the scheduled expiration
of the Renewal Term, if any.
'First Amendment' means the First Amendment to Participation Agreement,
Master Lease and Construction Deed of Trust dated as of the First Amendment
Effective Date, by and among the Lessee, the Lessor, the Participants and the
Agent.
'First Amendment Effective Date' means February 20, 1998.
'Fixed Rate' means, as to any Advance as to which the Lessee has elected
the application of the Fixed Rate pursuant to Section 3.4(b) of the
Participation Agreement, the weighted average fixed rate of interest accepted by
the Lessee and applicable to such Advance pursuant to Section 3.4(b) of the
Participation Agreement.
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'Fixed Rate Advance' means any Advance bearing interest at a rate per
annum equal to the sum of (i) the Fixed Rate applicable to such Advance as
determined pursuant to Section 3.4(b) of the Participation Agreement plus (ii)
the Applicable Margin.
'Fixed Rate Offer' is defined in Section 3.4(b) of the Participation
Agreement.
'Fixed Rate Period' is defined in Section 3.4(b) of the Participation
Agreement.
'Fixed Rate Request' is defined in Section 3.4(b) of the Participation
Agreement.
'Interest Period' means, with respect to any Eurodollar Rate Advance:
(a) during the Syndication Period:
(i) initially, the period commencing on the funding with respect
to such Advance and ending one month thereafter; and
(ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Advance and
ending one month thereafter; and
(b) subsequent to the Syndication Period, each period commencing
on the last day of the next preceding Interest Period applicable to such
Advance, or the date such Advance is made or converted from a Fixed Rate
Advance, and ending one, two, three, six, nine or twelve months
thereafter, as selected by the Lessee by irrevocable notice to the
Lessor and the Agent not less than three (3) Business Days prior to the
first day of such Interest Period; provided that, the foregoing
provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension
would be to carry such Interest Period into another calendar
month in which event such Interest Period shall end on the
immediately preceding Business Day;
(ii) any Interest Period that would otherwise extend beyond the
Expiration Date shall end on the Expiration Date;
(iii) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of the
Interest Period) shall end on the last Business Day of a calendar
month; and
(iv) The Lessee shall select Interest Periods so as not to
require a payment or prepayment of any Advance during an Interest
Period for such Advance.
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'Maturity Date' means February 27, 2003, as such date may
be accelerated or extended pursuant to Section 3.7 of the
Participation Agreement.
'Participation Interest' means, as to each Participant, a
participation interest in the Lease and the right to receive that
percentage of the following payments actually received by the
Lessor from or on behalf of the Lessee as is set forth on
Schedule I to the Participation Agreement, subject to the
provisions of Sections 3.11 - 3.21 and Section 11 of the
Participation Agreement: (i) Basic Rent, provided, that each
Participant's participation interest in any Fixed Rate Advance
shall bear interest at the fixed rate offered by such Participant
in its Fixed Rate Offer delivered with respect thereto under the
Participation Agreement plus the Applicable Margin, (ii)
Supplemental Rent, (iii) Asset Termination Value, (iv) Purchase
Option Price, (v) Net Sales Proceeds, (vi) Residual Value
Guarantee Amount, (vii) the Shortfall Amount, and (viii) other
payments in respect of indemnities or pursuant to the Guarantee
or the exercise of remedies under the Operative Documents,
excluding, however, (x) any Excepted Payments and (y) as to a
particular Participant, any payments on account of any Advances
and any Required Supplemental Payments (and interest thereon) for
which the Lessor has not received payment from such Participant
of such Participant's Commitment Percentage thereof. For example,
if the Lessor elects to pay for insurance required of the Lessee
by the Lease because of the Lessee's failure to obtain such
insurance, the Lessor's receipt of reimbursement for the cost of
such insurance from the Lessee shall be included within
"Participation Interest" for purposes of this Agreement only if
such Participant has paid to the Lessor such Participant's
Commitment Percentage of such cost pursuant to Section 11.6 or
Section 11.7 of the Participation Agreement.
'Renewal Term' means the three-year period which
immediately follows February 27, 2003, if the Lessee has
exercised its Renewal Option pursuant to Section 21.1 of the
Lease.
'Scheduled Payment Date' means (a) as to interest on any
Eurodollar Rate Advances having an Interest Period of three
months or less, the last day of each month, (b) as to interest on
any Eurodollar Rate Advances having an Interest Period longer
than three months, each day which is three months, or a whole
multiple thereof, after the first day of such Interest Period and
the last day of such Interest Period, (c) as to interest on Fixed
Rate Advances, the last day of each March, June, September and
December of each year and the maturity date of such Advance, and
(d) as to the principal amount of the Advances, each date
indicated on Schedule 1 to the Lease as being a payment date with
respect to such portion of the Property Improvements Cost, if
any.
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'Type' is defined in Section 3.8(a) of the Participation
Agreement."
3. Reference to and Effect on the Participation Agreement,
Appendix 1 and Other Operative Documents.
3.1 Except as specifically amended above, the Participation
Agreement, Appendix 1 and the other Operative Documents, and each of the
Schedules, Exhibits and Appendices thereto, shall remain in full force and
effect and the Participation Agreement, Appendix 1 and the other Operative
Documents, each as amended by this Amendment, are hereby ratified and confirmed
in all respects.
3.2 Upon the effectiveness of this Amendment each reference in
the Participation Agreement, Appendix 1 and the other Operative Documents to
"this Agreement," "hereunder," "hereof," or words of similar import, shall, in
each case, mean and be a reference to the Participation Agreement, Appendix 1
and the other Operative Documents, as applicable, as amended hereby.
4. Miscellaneous.
4.1 Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
4.2 Counterparts. This Amendment may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement.
4.3 Effective Date. This Amendment shall be effective as of the
date first above written when executed by all of the parties hereto.
4.4 GOVERNING LAW. THIS AMENDMENT SHALL IN ALL RESPECTS BE
GOVERNED BY THE LAW OF THE STATE OF CALIFORNIA (EXCLUDING ANY CONFLICT-OF-LAW OR
CHOICE-OF-LAW RULES WHICH MIGHT LEAD TO THE APPLICATION OF THE INTERNAL LAWS OF
ANY OTHER JURISDICTION) AS TO ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE.
* * * *
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, each party hereto has caused this First
Amendment to be duly executed and delivered as of the date first written above.
PEOPLESOFT, INC.
as Lessee
14
By: ________________________________
Title: _____________________________
LEASE PLAN NORTH AMERICA, INC.,
as Lessor
By: ________________________________
Title: _____________________________
ABN AMRO BANK N.V., SAN XXXXXXXXX
XXXXXX, as a Participant
By: ________________________________
Title: _____________________________
By: ________________________________
Title: _____________________________
ABN AMRO BANK N.V., SAN XXXXXXXXX
XXXXXX, as Agent
By: ________________________________
Title: _____________________________
By: ________________________________
Title: _____________________________
CREDIT LYONNAIS LOS ANGELES
BRANCH, as a Participant
By: ________________________________
Title: _____________________________
THE INDUSTRIAL BANK OF JAPAN,
15
LIMITED SAN FRANCISCO AGENCY,
as a Participant
By: _______________________________
Title: ____________________________
KEYBANK NATIONAL ASSOCIATION,
as a Participant
By: _______________________________
Title: ____________________________
MELLON BANK, N.A.,
as a Participant
By: _______________________________
Title: ____________________________
THE DAI-ICHI KANGYO BANK,
LIMITED SAN FRANCISCO AGENCY,
as a Participant
By: _______________________________
Title: ____________________________
EXHIBIT A
"EXHIBIT B-1
TO PARTICIPATION AGREEMENT
FORM OF FUNDING REQUEST
16
TO: ABN AMRO Bank N.V., San Francisco International Branch,
as Agent, and Lease Plan North America, Inc., as Lessor
Reference is hereby made to the Participation Agreement dated as of
December 4, 1996, as it may be amended from time to time (the "Participation
Agreement"), among PeopleSoft, Inc., a Delaware corporation (the "Lessee"), as
Lessee, Lease Plan North America, Inc., as Lessor, ABN AMRO Bank N.V., San
Francisco International Branch, as Agent and Participant, and the other
Participants a party thereto. Capitalized terms not otherwise defined herein are
used herein as defined in the Participation Agreement.
The Lessee hereby notifies you that:
(i) The Lessee requests the making of an Advance in the aggregate
amount of $__________ on ____________, allocated to the Tranche A
Participation Interests as $________ and the Tranche B Participation
Interests as $_________;
(ii) such Advance is to be comprised of a [Eurodollar Rate
Advance][Fixed Rate Advance];1/
[(iii) the initial Interest Period for such Eurodollar Rate
Advance will begin on ______________ and end on _________________]1/ ;
and
(iv) the Advance will be allocated to the respective Land
Interest Acquisition Cost and Property Improvements Costs of the
Property as set forth on Schedule A hereto.
In connection with such requested Advance, the Lessee hereby represents
and warrants to you as follows:
(a) on the requested Funding Date the representations and
warranties of the Lessee contained in each of the Operative Documents
shall be true and correct [in all material respects 2/ as though made on
and as of such date;
(b) on the requested Funding Date title to the Property shall
conform to the representations and warranties set forth in Section
8.4(c) of the Participation Agreement;
(c) on the requested Funding Date there shall not have occurred
and be continuing any Event of Default or, to the knowledge of the
Lessee, Default under any of the Operative Documents and no Event of
Default or, to the knowledge of the Lessee, Default under any of the
Operative Documents will have occurred after giving effect to the making
of the Advance; and
17
(d) after giving effect to the Advance requested hereby, the
Available Commitments of the Participants will not be exceeded.
Please wire transfer the proceeds of the Advance as set forth in the
letter of direction attached as Schedule B hereto.
The Lessee has caused this Funding Request to be executed and delivered
by its duly authorized Responsible Officer this ___ day of _____________, ______
[TO BE DELIVERED NOT LATER THAN 11:00 A.M., NEW YORK TIME, FOUR (IN CASE OF A
FIXED RATE ADVANCE) OR THREE (IN CASE OF A EURODOLLAR RATE ADVANCE) BUSINESS
DAYS PRIOR TO THE REQUESTED FUNDING DATE].
PEOPLESOFT, INC.
By:________________________________
Name:______________________________
Title:_____________________________"
EXHIBIT B
"EXHIBIT B-2
TO PARTICIPATION AGREEMENT
FORM OF FIXED RATE REQUEST
______________, ____
TO: ABN AMRO Bank N.V., San Francisco International Branch,
as Agent, and Lease Plan North America, Inc., as Lessor
Reference is hereby made to the Participation Agreement dated as of
December 4, 1996, as it may be amended from time to time (the "Participation
Agreement"), among PeopleSoft, Inc., a Delaware corporation (the "Lessee"), as
Lessee, Lease Plan North America, Inc., as Lessor, ABN AMRO Bank N.V., San
Francisco International Branch, as Agent and Participant, and the other
Participants a party thereto. Capitalized terms not otherwise defined herein are
used herein as defined in the Participation Agreement.
This is a Fixed Rate Request for a Fixed Rate Advance pursuant to
Section 3.4(b) of the Participation Agreement as follows:
1. Funding Date or date of conversion or continuation:
_______________, ____.
18
2. The aggregate amount of the proposed Fixed Rate Advance is
$____________.
3. Fixed Rate Maturity Date: _________, ______.
PEOPLESOFT, INC.
By:_________________________________
Name:_______________________________
Title:______________________________
DOCUMENT NUMBER: 283140.6
FEBRUARY 20, 1998
