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EXHIBIT 10.54
PARTICIPATION AGREEMENT
THIS PARTICIPATION AGREEMENT (this "Agreement" herein), dated as of
June 30, 1999, is entered into by and among:
(1) SILICON VALLEY GROUP, INC., a Delaware corporation
("Lessee");
(2) SELCO SERVICE CORPORATION, an Ohio corporation doing
business in California as Ohio SELCO Service Corporation ("Lessor");
(3) Each of the financial institutions from time to time
listed in Schedule I hereto, as amended from time to time (such
financial institutions to be referred to collectively as the
"Participants"); and
(4) KEYBANK NATIONAL ASSOCIATION, as agent for the
Participants (in such capacity, "Agent").
RECITALS
A. Lessee has requested Lessor and the Participants to provide to
Lessee a lease facility pursuant to which:
(1) Lessor would (a) purchase the land described in Exhibit A
(as more fully defined in Schedule 1.01, the "Land"), together with the
improvements thereto, (b) lease such property to Lessee and (c) grant
to Lessee the right to purchase such property; and
(2) The Participants would participate in such lease facility
by (a) funding the advance to be made by Lessor to purchase such
property and (b) acquiring participation interests in the rental and
certain other payments to be made by Lessee.
X. Xxxxxx and the Participants are willing to provide such lease
facility upon the terms and subject to the conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
SECTION 1. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this Agreement or any
other Operative Document, each term set forth in Schedule 1.01, when used in
this Agreement or any other Operative Document, shall have the respective
meaning given to that term in Schedule 1.01 or in
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the provision of this Agreement or other document, instrument or agreement
referenced in Schedule 1.01.
1.02. Rules of Interpretation. Unless otherwise indicated in this
Agreement or any other Operative Document, the rules of interpretation set forth
in Schedule 1.02 shall apply to this Agreement and the other Operative
Documents.
SECTION 2. LEASE FACILITY.
2.01. Acquisition, Lease, Amount Limitations, Etc.
(a) Acquisition, Lease, Etc. Subject to the terms and
conditions of this Agreement (including the limitations set forth in
Subparagraph 2.01(b)), on the date specified by Lessee pursuant to
Subparagraph 2.03(b) (the "Closing Date"):
(i) Lessor shall purchase (with funds provided by the
Participants) the Land, certain of the Improvements and
certain other property (as more fully defined in Schedule
1.01, the "Property") and shall pay (with funds provided by
the Participants) related expenses specified by Lessee to the
extent such expenses are Permitted Transaction Expenses; and
(ii) Immediately upon the purchase by Lessor of the
Property, Lessor and Lessee shall execute (A) a Lease
Agreement in the form of Exhibit B (the "Lease Agreement"),
pursuant to which Lessor leases to Lessee the Property and (2)
a Purchase Agreement in the form of Exhibit C (the "Purchase
Agreement"), pursuant to which Lessor grants to Lessee the
right to purchase the Property.
(b) Amount Limitations. The advance made by Lessor on the
Closing Date to purchase the Property and pay Permitted Transaction
Expenses (the "Acquisition Advance") shall not exceed the following
limitations:
(i) The portion of the Acquisition Advance used to
pay the Acquisition Price for the Property shall not exceed
the Closing Date Appraisal for the Property; and
(ii) The aggregate amount of the Acquisition Advance
shall not exceed the lesser of (A) Fourteen Million Eight
Hundred Seventy Nine Thousand Five Hundred Dollars
($14,879,500) (the "Total Commitment") and (B) the Expiration
Date Appraisal for the Property.
(c) Tranches. The Acquisition Advance shall consist of a
Tranche A Portion and a Tranche B Portion. For accounting purposes, the
Tranche A Portion shall constitute debt and the Tranche B Portion shall
constitute equity.
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2.02. Participation Agreement.
(a) Acquisition Advance. Each Participant severally,
unconditionally and irrevocably agrees with Lessor to participate in
the Acquisition Advance made by Lessor in an amount equal to such
Participant's Proportionate Share of the Acquisition Advance; provided,
however, that the aggregate amount of each Participant's Proportionate
Share of the Acquisition Advance shall not exceed such Participant's
Commitment. Each Participant shall fund its Proportionate Share of the
Acquisition Advance as provided in Subparagraph 2.05(a). Each
Participant's Proportionate Share of the Acquisition Advance shall
consist of such Participant's Tranche A Portion and Tranche B Portion.
(b) Payments. In consideration of each Participant's
participation in the Acquisition Advance made by Lessor, such
Participant shall participate in the payments made by Lessee under this
Agreement and the other Operative Documents as provided in Paragraph
2.06.
(c) Other Rights of Participants and Agent.
(i) Until all amounts payable to Agent and
Participants under this Agreement and the other Operative
Documents are paid in full, Lessee shall deliver all notices
for Lessor under this Agreement and the other Operative
Documents to Agent at the office or facsimile number and
during the hours specified in Paragraph 7.01. Agent shall
promptly furnish to Lessor and each Participant copies of each
such notice and, in the case of the Acquisition Request, shall
notify each Participant of the amount of such Participant's
Proportionate Share of the Acquisition Advance requested
thereby.
(ii) Lessor is not an agent for Participants or Agent
and may exercise or refrain from exercising its rights under
this Agreement and the other Operative Documents in its
discretion; provided, however that:
(A) Until all amounts payable to Agent and
Participants under this Agreement and the other
Operative Documents are paid in full, (1) Lessor
shall, subject to the limitations set forth in
Section VI, be required to act or to refrain from
acting upon instructions of the Required Participants
as provided in Paragraph 6.03 and (2) Agent may
exercise any or all of the rights and remedies of
Lessor, and shall be entitled to the other benefits
afforded Lessor, under this Agreement and the other
Operative Documents; and
(B) This clause (ii) shall not relieve the
Lessor Parties of any of their obligations to Lessee
under the Operative Documents.
(iii) Neither Agent nor any Participant shall have
any right, title or interest in the Property except for the
Lien therein granted to Agent, for the
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benefit of the Participants, under the Lessor Deed of Trust,
the Assignment of Lease and the Lessor Security Agreement.
2.03. Acquisition Request. Lessee shall request Lessor to make the
Acquisition Advance by delivering to Lessor an irrevocable written request in
the form of Exhibit D, appropriately completed (the "Acquisition Request"),
which specifies, among other things:
(a) The amount of the Acquisition Advance;
(b) The date of the Acquisition Advance, which shall be a
Business Day on or prior to July 15, 1999 (the "Commitment Termination
Date");
(c) The portion of the Acquisition Advance to be used to pay
the Acquisition Price of the Property; and
(d) The portion of the Acquisition Advance to be used to pay
Permitted Transaction Expenses and the Permitted Transaction Expenses
so to be paid.
Lessee shall deliver the Acquisition Request to Lessor by 11:00 a.m. on the
Closing Date by first-class mail or facsimile as required by Subparagraph
2.02(c) and Paragraph 7.01; provided, however, that Lessee shall promptly
deliver to Lessor the original of the Acquisition Request if initially delivered
by facsimile. The amount set forth in the Acquisition Request shall constitute
the Outstanding Lease Amount as of the Closing Date.
2.04. Agent Fees. Lessee shall pay to Agent, for its own account, an
agent structuring fee in the amount and at the time set forth in the Agent's
Structuring Fee Letter (the "Agent's Structuring Fee").
2.05. Funding of Acquisition Advance.
(a) Participant Funding and Disbursement. Each Participant
shall, before 11:00 a.m. on the Closing Date, make available to Agent
at its office specified in Paragraph 7.01, in same day or immediately
available funds, such Participant's Proportionate Share of the
Acquisition Advance. After Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Section 3, Agent
will promptly disburse such funds on behalf of Lessor, in same day or
immediately available funds, to an escrow or other account established
for the payment of the Acquisition Price and any related Permitted
Transaction Expenses pursuant to the Acquisition Agreement or otherwise
as directed by Lessee in the Acquisition Request.
(b) Participants' Obligations Several. The failure of any
Participant to fund its Proportionate Share of the Acquisition Advance
shall not relieve any other Participant of its obligation hereunder to
fund its Proportionate Share of the Acquisition Advance, and no
Participant shall be responsible for the failure of any other
Participant to fund its Proportionate Share of the Acquisition Advance
on the Closing Date.
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2.06. Sharing of Payments.
(a) Outstanding Lease Amount. Lessor shall share payments
applied to reduce the Outstanding Lease Amount as follows:
(i) Each payment of the Outstanding Lease Amount
derived from the purchase price paid by Lessee (or an Assignee
Purchaser) to purchase the Property pursuant to the Purchase
Agreement shall be shared first by the Participants pro rata
according to their respective Outstanding Participation
Amounts at the time of such payment, up to the Outstanding
Participation Amount for each Participant.
(ii) Each payment of the Outstanding Lease Amount
derived from the Residual Value Guaranty Amount paid by Lessee
pursuant to the Purchase Agreement shall be shared first by
the Tranche A Participants pro rata according to their
respective Outstanding Tranche A Participation Amounts at the
time of such payment up to the Outstanding Tranche A
Participation Amount for each Participant; and second, if any
amounts remain after all Outstanding Tranche A Participation
Amounts are paid in full, by the Tranche B Participants pro
rata according to their respective Outstanding Tranche B
Participation Amounts at the time of such payment up to the
Outstanding Tranche B Participation Amount for each
Participant.
(iii) Each payment of the Outstanding Lease Amount
derived from:
(A) The purchase price paid by a Designated
Purchaser to purchase the Property pursuant to the
Purchase Agreement;
(B) The Indemnity Amount paid by Lessee
pursuant to the Purchase Agreement;
(C) Casualty Proceeds or Condemnation
Proceeds related to any of the Property; or
(D) The purchase price paid by any other
Person to purchase the Property (whether after the
retention of such Property by Lessor following the
Expiration Date, upon foreclosure or otherwise);
Shall be shared first by the Tranche A Participants pro rata
according to their respective Outstanding Tranche A
Participation Amounts at the time of such payment up to the
Outstanding Tranche A Participation Amount for each
Participant; and second, if any amounts remain after all
Outstanding Tranche A Participation Amounts are paid in full,
by the Tranche B Participants pro rata according to their
respective Outstanding Tranche B Participation Amounts at the
time of such payment up to the Outstanding Tranche B
Participation Amount for each Participant.
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(b) Base Rent. Lessor shall share each payment applied to Base
Rent among the Participants which funded the Outstanding Lease Amount
pro rata according to (i) the respective Outstanding Participation
Amounts so funded by such Participants and (ii) the dates on which such
Participants so funded such amounts.
(c) Supplemental Rent. Lessor shall share each payment applied
to Supplemental Rent among the Lessor Parties as follows:
(i) Each payment applied to Agent's Structuring Fee
shall be solely for the account of Agent.
(ii) Each payment applied to reimburse any Lessor
Party for any fees, costs and expenses incurred by such Lessor
Party shall be solely for the account of such Lessor Party.
(iii) Each payment of interest (other than Base Rent)
shall be shared among the Lessor Parties owed the amount upon
which such interest accrues pro rata according to (A) the
respective amounts so owed such Lessor Parties and (B) the
dates on which such amounts became owing to such Lessor
Parties.
(iv) All other payments under this Agreement and the
other Operative Documents shall be for the benefit of the
Person or Persons specified.
(d) Disproportionate Payments, Etc. If any Participant shall
obtain any payment (whether voluntary, involuntary, through the
exercise of any right of setoff, or otherwise) on account of amounts
owed to it in excess of its ratable share of payments on account of
such amounts obtained by all Participants entitled to such payments,
such Participant shall forthwith purchase from the other Participants
such participations in the payments to be made under the Operative
Documents as shall be necessary to cause such purchasing Participant to
share the excess payment ratably with each of them; provided, however,
that if all or any portion of such excess payment is thereafter
recovered from such purchasing Participant, such purchase shall be
rescinded and each other Participant shall repay to the purchasing
Participant the purchase price to the extent of such recovery together
with an amount equal to such other Participant's ratable share
(according to the proportion of (i) the amount of such other
Participant's required repayment to (ii) the total amount so recovered
from the purchasing Participant) of any interest or other amount paid
or payable by the purchasing Participant in respect of the total amount
so recovered. Lessee agrees that any Participant so purchasing a
participation from another Participant pursuant to this Subparagraph
2.06(d) may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of setoff) with respect to such
participation as fully as if such Participant were the direct creditor
of Lessee in the amount of such participation.
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2.07. Other Payment Terms.
(a) Place and Manner of Payments by Lessee. Lessee shall make
all payments due to any Lessor Party under this Agreement and the other
Operative Documents by payments to Agent, for the account of such
Person, at Agent's office, located at the address specified in
Paragraph 7.01, with each payment due to a Participant to be for the
account of such Participant's Applicable Participating Office. Lessee
shall make all payments in lawful money of the United States and in
same day or immediately available funds not later than 11:00 a.m. on
the date due. Agent shall promptly disburse to the appropriate Person
each such payment received by Agent for such Person.
(b) Date. Whenever any payment due under this Agreement or any
other Operative Document shall fall due on a day other than a Business
Day, such payment shall be made on the next succeeding Business Day,
and such extension of time shall be included in the computation of
Rent, interest or fees, as the case may be.
(c) Late Payments. If any amounts required to be paid by
Lessee under this Agreement or any other Operative Document (including
Rent, interest, fees or other amounts) remain unpaid after such amounts
are due, Lessee shall pay interest on the aggregate, outstanding
balance of such amounts from the date due until those amounts are paid
in full at a per annum rate equal to the Base Rate plus two percent
(2.0%), such rate to change from time to time as the Base Rate shall
change.
(d) Application of Payments. Except as otherwise expressly
provided herein or in the other Operative Documents, all payments and
all other sums received by Lessor Parties under this Agreement and the
other Operative Documents shall be applied first to unpaid fees, costs
and expenses and other Supplemental Rent then due and payable under
this Agreement or any other Operative Document, second to the accrued
Base Rent then due and payable under this Agreement or any other
Operative Document and finally to reduce the Outstanding Lease Amount.
If, at any time, after Lessor Parties have so applied, or should have
so applied, all payments received by Lessor Parties to Lessee
Obligations then due and payable by Lessee any excess remains, Lessor
Parties promptly shall return such excess to Lessee unless an Event of
Default has occurred and is continuing.
(e) Failure to Pay Agent. Unless Agent shall have received
notice from Lessee at least one (1) Business Day prior to the date on
which any payment is due to Lessor or the Participants under this
Agreement or the other Operative Documents that Lessee will not make
such payment in full, Agent may assume that Lessee has made such
payment in full to Agent on such date and Agent may, in reliance upon
such assumption, cause to be distributed to the appropriate Persons on
such due date an amount equal to the amount then due such Persons. If
and to the extent Lessee shall not have so made such payment in full to
Agent, each such Person shall repay to Agent forthwith on demand such
amount distributed to such Person together with interest thereon, for
each day from the date such amount is distributed to such Person until
the date such Person repays such
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amount to Agent, at (i) the Federal Funds Rate for the first three (3)
days and (ii) the Base Rate plus two percent (2.0%) thereafter, such
rate to change from time to time as the Base Rate shall change. A
certificate of Agent submitted to any Person with respect to any
amounts owing by such Person under this Subparagraph 2.07(e) shall be
conclusive absent manifest error.
2.08. Commitment Termination. Any undrawn portion of the Commitments
shall terminate on the earlier of (a) the Closing Date, after the funding by the
Participants of the Acquisition Advance, and (b) July 15, 1999.
2.09. Lease Extensions. Lessee may, as provided herein but not more
than three (3) times, request Lessor to extend the Scheduled Expiration Date of
the Lease Agreement for an additional period of one (1) year by appropriately
completing, executing and delivering to Agent a written request in the form of
Exhibit E, together with an attachment thereto setting forth the terms upon
which Lessee would propose for the requested extension (a "Lease Extension
Request"). Lessee shall deliver each Lease Extension Request to Agent not more
than eighteen (18) months and not less than fifteen (15) months before the then
current Scheduled Expiration Date. Agent shall promptly deliver to Lessor and
each Participant three (3) copies of each Lease Extension Request received by
Agent. If Lessor or a Participant, in its sole and absolute discretion, consents
to a Lease Extension Request, such Person shall evidence such consent by
executing and returning two (2) copies of such Lease Extension Request to Agent
not later than the last Business Day which is not less than thirteen (13) months
prior to the then current Scheduled Expiration Date. Any failure by Lessor or
any Participant so to execute and return a Lease Extension Request shall be
deemed a denial thereof. If Lessee shall deliver a Lease Extension Request to
Lessor pursuant to the first sentence of this Subparagraph 2.09(b), then not
later than the last Business Day which is not less than 364 days prior to the
then current Scheduled Expiration Date, Agent shall notify Lessee, Lessor and
the Participants in writing whether (i) Agent has received a copy of the Lease
Extension Request executed by Lessor and each Participant, in which case the
definition of "Scheduled Expiration Date" set forth in Subparagraph 2.02(a) of
the Lease Agreement shall be deemed extended to the date which is one (1) year
after the then current Scheduled Expiration Date (subject to the receipt by
Agent of any amounts payable by Lessee in connection with such extension), or
(ii) Agent has not received a copy of the Lease Extension Request executed by
Lessor and each Participant, in which case such Lease Extension Request shall be
deemed denied. Lessee acknowledges that neither Lessor nor any Participant has
promised (either expressly or implicitly), or has any obligation or commitment,
to extend or consent to the extension of the Scheduled Expiration Date at any
time.
2.10. Nature of the Transaction. Lessee and the Lessor Parties intend
that the transaction evidenced by this Agreement and the other Operative
Documents constitute an operating lease for purposes of Lessee's financial and
SEC reporting and a loan secured by the Property for purposes of federal, state
and local income tax and commercial, real estate and bankruptcy law. To the
extent that this Agreement and the other Operative Documents reflect the lease
form alone, they do so for convenience only, and such form should not be
construed to alter the intent expressed in the preceding sentence. Lessee and
the Lessor Parties intend that the
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Operative Documents have the dual form referred to in the first sentence of this
paragraph, notwithstanding the use of the lease form alone. However, the parties
hereto reserve the right to report this transaction in their legal documents as
required by law, and such reporting will not affect the characterization of this
transaction, inter se, as described in this Paragraph 2.10.
(a) Tax Treatment. For purposes of all income, franchise and
other taxes imposed upon or measured by income, Lessee and Lessor
Parties intend that the transaction evidenced by the Operative
Documents shall be treated as a loan by the Participants (through
Lessor) to Lessee secured by the Property, with Lessee as owner of the
Property. Lessee and the Lessor Parties may only take deductions,
credits, allowances and other reporting positions on their respective
returns, reports and statements which are consistent with such
treatment, unless required to do otherwise by an appropriate taxing
authority after the completion of judicial proceedings at which Lessee
has had a full and complete opportunity to present its position or
after a clearly applicable change in applicable Governmental Rules;
provided, however, that if an appropriate taxing authority or a clearly
applicable change in applicable Governmental Rules requires any Lessor
Party to take such an inconsistent position, such Lessor Party shall
promptly notify Lessee.
(b) Other Legal Treatment. For purposes of commercial, real
estate and bankruptcy law, Lessee and Lessor Parties also intend that
the transaction evidenced by the Operative Documents shall be treated
as a loan by the Participants (through Lessor) to Lessee secured by the
Property, with Lessee as owner of the Property. Consistent with such
treatment, Lessee and the Lessor Parties intend that, among other
things for such purposes, (i) the Acquisition Advance be treated as a
loan to Lessee by the Participants (through Lessor); (ii) the
Acquisition Advance be secured by the Property and the Lessor Parties
have the rights and remedies of secured lenders; (iii) Base Rent be
treated as interest on the Acquisition Advance; (iv) Lessee be required
to pay on the Expiration Date only the Residual Value Guaranty Amount,
the Indemnity Amount and the other amounts required by Subparagraph
3.03(b) of the Purchase Agreement if Lessee exercises the Return Option
in accordance with the Purchase Agreement; and (v) Lessee be required
to pay on the Expiration Date the Outstanding Lease Amount and all
other amounts outstanding under this Agreement and the other Operative
Documents if the Lease Agreement is terminated or all Lessee
Obligations are declared due prior to the Scheduled Expiration Date
after an Event of Default occurs under the Lease Agreement or if Lessee
fails to or is otherwise not entitled to exercise the Return Option in
accordance with the Purchase Agreement.
(c) No Reliance by Lessee. Lessee acknowledges and agrees that
no Lessor Party has made any representations or warranties to Lessee
concerning the tax, accounting or legal characteristics of the
Operative Documents and that Lessee has obtained and relied upon such
tax, accounting and legal advice concerning the Operative Documents as
it deems appropriate.
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(d) Loss of Lease Treatment. If the transaction evidenced by
this Agreement and the other Operative Documents can no longer be
treated as an operating lease pursuant to GAAP for accounting purposes,
all provisions in the Operative Documents limiting Lessee's obligation
to pay less than the Outstanding Lease Amount (including the Return
Option) on the Expiration Date shall no longer apply. If any such
change in accounting treatment shall occur, and the provisions of the
Operative Documents cannot be modified in a manner which will preserve
such accounting treatment without resulting in a Material Adverse
Effect, then Lessee and Lessor shall enter into such amendments to the
Operative Documents as Lessor or Required Participants may reasonably
request to reflect the foregoing.
2.11. Security.
(a) Lessee Obligations.
(i) To the extent that the transaction evidenced by
the Lease Agreement, Purchase Agreement and other Operative
Documents is treated as a loan by the Participants (through
Lessor) to Lessee secured by the Property, with Lessee as
owner of the Property pursuant to Paragraph 2.10, the Lessee
Obligations shall be secured by the Real Property Collateral
and the Personal Property Collateral (collectively, the
"Property Collateral") as provided in Subparagraphs 2.07(a)
and 2.07(b) of the Lease Agreement and in an Assignment of
Remediation Agreements in the form of Exhibit M, executed by
Lessee (the "Assignment of Remediation Agreements").
(ii) In addition to the Property Collateral, the
Lessee Obligations shall be secured by a Cash Collateral
Agreement in the form of Exhibit F, duly executed by Lessee
(the "Cash Collateral Agreement") and Cash Collateral
delivered to Agent or Participants pursuant to the Cash
Collateral Agreement. Lessee shall deliver to Depository Banks
pursuant to the Cash Collateral Agreement Cash Collateral in
an amount not less than 105% of the total Tranche A
Proportionate Shares of the Outstanding Lease Amounts at any
time Lessee elects, pursuant to Subparagraph 3.01(a) of the
Purchase Agreement, to exercise the Return Option after Lessor
notifies Lessee that Lessor is terminating the Lease Agreement
pursuant to Subparagraph 5.03(a) of the Lease Agreement or
declaring all Lessee Obligations due pursuant to Subparagraph
5.04(a) of the Lease Agreement on a Termination Date that is
prior to the Scheduled Expiration Date. At the time Lessee
delivers any Cash Collateral to Agent or Participants pursuant
to this clause (ii), Lessee also shall deliver to Lessor a
favorable written opinion of its counsel, in form and
substance reasonably satisfactory to Lessor and Agent but
subject to customary qualifications and assumptions, to the
effect that the Cash Collateral Agreement is a legal, valid
and binding agreement of Lessee, enforceable in accordance
with its terms, and that Lessor has a perfected security
interest in the Cash Collateral. Lessee may not withdraw any
Cash Collateral
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required to be delivered pursuant to this clause (ii) until
the Expiration Date and the satisfaction in full of all Lessee
Obligations.
(iii) Lessee shall deliver to Lessor and Agent such
additional mortgages, deeds of trust, security agreements,
pledge agreements, lessor consents and estoppels (containing
appropriate mortgagee and lender protection language) and
other instruments, agreements, certificates, opinions and
documents (including Uniform Commercial Code financing
statements and fixture filings and landlord waivers) as Lessor
or Agent may reasonably request to (A) grant, perfect,
maintain, protect and evidence security interests in favor of
Lessor or Agent in the Property Collateral prior to the Liens
or other interests of any Person, except for Permitted
Property Liens; and (B) otherwise establish, maintain, protect
and evidence the rights provided to Lessor and Agent in the
Property Collateral. Lessee shall fully cooperate with Lessor
and Agent and perform all additional acts reasonably requested
by Lessor or Agent to effect the purposes of this Subparagraph
2.11(a).
(b) Lessor Obligations to Lessor Parties.
(i) The Lessor Obligations to the Lessor Parties
shall be secured by the following:
(A) An Assignment of Lease Agreement and
Purchase Agreement in the form of Exhibit G, duly
executed by Lessor (the "Assignment of Lease");
(B) A Deed of Trust with Assignment of
Rents, Security Agreement and Fixture Filing in the
form of Exhibit H, duly executed by Lessor (the
"Lessor Deed of Trust"); and
(C) A Security Agreement in the form of
Exhibit I, duly executed by Lessor (the "Lessor
Security Agreement").
(ii) Lessor shall deliver to Agent such additional
mortgages, deeds of trust, security agreements, pledge
agreements, lessor consents and estoppels (containing
appropriate mortgagee and lender protection language) and
other instruments, agreements, certificates, opinions and
documents (including Uniform Commercial Code financing
statements and fixture filings and landlord waivers) as Agent
may reasonably request to (A) grant, perfect, maintain,
protect and evidence security interests in favor of Agent in
Lessor's rights in the Property Collateral and the Cash
Collateral; and (B) otherwise establish, maintain, protect and
evidence the rights provided to Agent in the Property
Collateral and the Cash Collateral. Lessor shall fully
cooperate with Agent and perform all additional acts
reasonably requested by Agent to effect the purposes of this
Subparagraph 2.11(b).
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(iii) Lessee hereby consents to the Assignment of
Lease, the Lessor Deed of Trust and the Lessor Security
Agreement; the Liens granted to Agent therein; and all other
Liens granted to Agent in any of the Operative Documents and
the Property to secure the Lessor Obligations.
(c) Lessor Obligations to Lessee. The Lessor Obligations to
Lessee shall be secured by a Deed of Trust with Assignment of Rents,
Security Agreement and Fixture Filing in the form of Exhibit J, duly
executed by Lessor (the "Lessor/Lessee Deed of Trust").
2.12. Change of Circumstances.
(a) Inability to Determine Rates. If, on or before the first
day of any Rental Period for any Portion, (i) any Participant shall
advise Agent that the LIBOR Rental Rate for such Rental Period and
Portion cannot be adequately and reasonably determined due to the
unavailability of funds in or other circumstances affecting the London
interbank market or (ii) Required Participants shall advise Agent that
the LIBOR Rental Rate for such Rental Period and Portion does not
adequately and fairly reflect the cost to such Participants of funding
their shares of such Portion, Agent shall immediately give notice of
such condition to Lessee, Lessor and the other Participants. After the
giving of any such notice (and until Agent shall otherwise notify
Lessee and Lessor that the circumstances giving rise to such condition
no longer exist), the LIBOR Rental Rate shall be unavailable and the
Rental Rate for each new Rental Period shall be the Alternate Rental
Rate.
(b) Illegality. If, after the date of this Agreement, the
adoption of any Governmental Rule, any change in any Governmental Rule
or the application or requirements thereof (whether such change occurs
in accordance with the terms of such Governmental Rule as enacted, as a
result of amendment or otherwise), any change in the interpretation or
administration of any Governmental Rule by any Governmental Authority,
or compliance by Lessor or any Participant with any request or
directive (whether or not having the force of law) of any Governmental
Authority (a "Change of Law") shall make it unlawful or impossible for
any Participant to fund or maintain its portion of the Outstanding
Lease Amount at the LIBOR Rental Rate, such Participant shall
immediately notify Agent and Agent shall immediately notify Lessee,
Lessor and the other Participants of such Change of Law. Upon the
termination of the Rental Period during which such notice was given,
and until Agent shall otherwise notify Lessee and Lessor that such
Change of Law is no longer in effect, the LIBOR Rental Rate shall be
unavailable for the Outstanding Participation Amount of the Participant
affected by such Change of Law and the Rental Rate for the Outstanding
Participation Amount of such Participant after the end of the Rental
Period during which such notice was given shall be the Alternate Rental
Rate.
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(c) Increased Costs. Subject to Paragraph 2.16, if, after the
date of this Agreement, any Change of Law:
(i) Shall subject Lessor or any Participant to any
tax, duty or other charge with respect to the Outstanding
Lease Amount, or shall change the basis of taxation of Base
Rent payments by Lessee to Lessor or any Participant under
this Agreement or any other Operative Document (except for
changes in the rate of taxation on the overall net income of
Lessor or any Participant imposed by its jurisdiction of
incorporation or, in the case of any Participant, the
jurisdiction in which its Applicable Participating Office is
located); or
(ii) Shall impose, modify or hold applicable any
reserve (excluding any Reserve Requirement or other reserve to
the extent included in the calculation of the LIBOR Rental
Rate), special deposit or similar requirement against assets
held by, deposits or other liabilities in or for the account
of, advances or loans by, or any other acquisition of funds by
Lessor or any Participant or its portion of the Outstanding
Lease Amount; or
(iii) Shall impose on Lessor or any Participant any
other condition related to the Outstanding Lease Amount, Base
Rent or Lessor's or such Participant's commitments hereunder;
And the effect of any of the foregoing is to increase the cost to
Lessor or such Participant of funding or maintaining its portion of the
Outstanding Lease Amount or commitments or to reduce any amount
receivable by Lessor or such Participant hereunder; then Lessee shall
from time to time within thirty (30) days after demand by such Person,
pay to such Person additional amounts sufficient to reimburse such
Person for such increased costs or to compensate such Person for such
reduced amounts; provided, however, that Lessee shall have no
obligation to make any payment to any demanding party under this
Subparagraph 2.12(c) on account of any such increased costs or reduced
amounts relating to any Rental Period that ended more than six (6)
months prior to such demanding party's first demand for payment (or, if
any increased costs or reduced amounts do not relate to a particular
Rental Period, on account of any such increased costs or reduced
amounts realized by the demanding party more than six (6) months prior
to its first demand for payment). A certificate of Lessor or any
Participant setting forth in reasonable detail the computation of any
such increased costs or reduced amounts, delivered by such Person to
Lessee shall constitute prima facie evidence of such costs or amounts.
The obligations of Lessee under this Subparagraph 2.12(c) shall survive
the payment and performance of the Lessee Obligations and the
termination of this Agreement.
(d) Capital Requirements. Subject to Paragraph 2.16, if, after
the date of this Agreement, Lessor or any Participant determines that
(i) any Change of Law affects the amount of capital required to be
maintained by such Person or any other Person controlling such Person
(a "Capital Adequacy Requirement") and (ii) the amount of capital
maintained by such Person or such other Person which is attributable to
or based
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upon the Acquisition Advance, the Commitments or this Agreement must be
increased as a result of such Capital Adequacy Requirement (taking into
account such Person's or such other Person's policies with respect to
capital adequacy), Lessee shall pay to such Person or such other
Person, within thirty (30) days after demand of such Person, such
amounts as such Person or such other Person reasonably shall determine
are necessary to compensate such Person or such other Person for the
increased costs to such Person or such other Person of such increased
capital; provided, however, that Lessee shall have no obligation to
make any payment to any demanding party under this Subparagraph 2.12(d)
on account of any such increased costs relating to any Rental Period
that ended more than six (6) months prior to such demanding party's
first demand for payment (or, if any increased costs or reduced amounts
do not relate to a particular Rental Period, on account of any such
increased costs or reduced amounts realized by the demanding party more
than six (6) months prior to its first demand for payment). A
certificate of Lessor or any Participant setting forth in reasonable
detail the computation of any such increased costs, delivered by such
Person to Lessee shall constitute prima facie evidence of such costs.
The obligations of Lessee under this Subparagraph 2.12(d) shall survive
the payment and performance of the Lessee Obligations and the
termination of this Agreement.
(e) Mitigation. If Lessor or any Participant becomes aware of
(i) any Change of Law which will make it unlawful or impossible for
such Person to fund or maintain its portion of the Outstanding Lease
Amount at the LIBOR Rental Rate or (ii) any Change of Law or other
event or condition which will obligate Lessee to pay any amount
pursuant to Subparagraph 2.12(c) or Subparagraph 2.12(d), such Person
shall notify Lessee and Agent thereof as promptly as practical. If any
Person has given notice of any such Change of Law or other event or
condition and thereafter becomes aware that such Change of Law or other
event or condition has ceased to exist, such Person shall notify Lessee
and Agent thereof as promptly as practical. Each Person affected by any
Change of Law which makes it unlawful or impossible for such Person to
fund or maintain its portion of the Outstanding Lease Amount at the
LIBOR Rental Rate or to which Lessee is obligated to pay any amount
pursuant to Subparagraph 2.12(c) or Subparagraph 2.12(d) shall use
reasonable commercial efforts (including changing the jurisdiction of
its Applicable Participating Office) to avoid the effect of such Change
of Law or to avoid or materially reduce any amounts which Lessee is
obligated to pay pursuant to Subparagraph 2.12(c) or Subparagraph
2.12(d) if, in the reasonable opinion of such Person, such efforts
would not be disadvantageous to such Person or contrary to such
Person's normal business practices for transactions of this type.
2.13. Taxes on Payments.
(a) Payments Free of Taxes. Subject to Paragraph 2.16, all
payments made by Lessee under this Agreement and the other Operative
Documents shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future Indemnified
Taxes, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority. If any Indemnified Taxes are
required to be withheld from any amounts payable to any Lessor Party
hereunder or under the other Operative
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Documents, the amounts so payable to such Lessor Party shall be
increased to the extent necessary to yield to such Lessor Party (after
payment of all Indemnified Taxes) the Base Rent or any such other
amounts payable hereunder at the rates or in the amounts specified in
this Agreement and the other Operative Documents. Whenever any
Indemnified Taxes are payable by Lessee, as promptly as possible
thereafter, Lessee shall send to Agent for its own account or for the
account of Lessor or such Participant, as the case may be, a certified
copy of an original official receipt received by Lessee showing payment
thereof. If Lessee fails to pay any Indemnified Taxes when due to the
appropriate taxing authority or fails to remit to Agent the required
receipts or other required documentary evidence, Lessee shall indemnify
the Lessor Parties for any incremental taxes, interest or penalties
that may become payable by the Lessor Parties as a result of any such
failure. The obligations of Lessee under this Subparagraph 2.13(a)
shall survive the payment and performance of the Lessee Obligations and
the termination of this Agreement.
(b) Withholding Exemption Certificates. On or prior to the
Closing Date or, if such date does not occur within thirty (30) days
after the date of this Agreement, by the end of such 30-day period,
Lessor, if it is not organized under the laws of the United States of
America or a state thereof, and each Participant which is not organized
under the laws of the United States of America or a state thereof shall
deliver to Lessee and Agent two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224 (or successor applicable
form), as the case may be, certifying in each case that Lessor or such
Participant, as the case may be, is entitled to receive payments under
this Agreement and the other Operative Documents without deduction or
withholding of any United States federal income taxes. Lessor and each
Participant further agree (i) promptly to notify Lessee and Agent of
any change of circumstances (including any change in any treaty, law or
regulation) which would prevent such Person from receiving payments
hereunder without deduction or withholding of such taxes and (ii) if
Lessor or such Participant has not so notified Lessee and Agent of any
change of circumstances which would prevent such Person from receiving
payments hereunder without deduction or withholding of taxes, then on
or before the date that any certificate or other form delivered by such
Person under this Subparagraph 2.13(b) expires or becomes obsolete or
after the occurrence of any event requiring a change in the most recent
form previously delivered by such Person, to deliver to Lessee and
Agent a new certificate or form certifying that such Person is entitled
to receive payments under this Agreement and the other Operative
Documents without deduction or withholding of such taxes. If Lessor or
any Participant fails to provide to Lessee or Agent pursuant to this
Subparagraph 2.13(b) (or, in the case of an Assignee Participant,
Subparagraph 7.05(b)) any certificates or other evidence required by
such provision to establish that such Person is, at the time it becomes
a Lessor or a Participant hereunder, entitled to receive payments under
this Agreement and the other Operative Documents without deduction or
withholding of any United States federal income taxes, Lessor or such
Participant, as the case may be, shall not be entitled to any
indemnification under Subparagraph 2.13(a) for any Indemnified Taxes
imposed on such Lender primarily as a result of such failure.
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(c) Mitigation. If any Lessor Party claims any additional
amounts to be payable to it pursuant to this Paragraph 2.13, such
Lessor Party shall use reasonable commercial efforts to file any
certificate or document requested in writing by Lessee (including
copies of Internal Revenue Service Form 1001 (or successor forms)
reflecting a reduced rate of withholding) or to change the jurisdiction
of its Applicable Participating Office if the making of such a filing
or such change in the jurisdiction of its Applicable Participating
Office would avoid the need for or materially reduce the amount of any
such additional amounts which may thereafter accrue and if, in the
reasonable opinion of a Participant, in the case of a change in the
jurisdiction of its Applicable Participating Office, such change would
not be disadvantageous to such Person.
(d) Tax Returns. Nothing contained in this Paragraph 2.13
shall require any Lessor Party to make available any of its tax returns
(or any other information relating to its taxes which it deems to be
confidential).
(e) Tax Savings. In the event an Indemnitee receives a refund
(or similar tax savings) in respect of any Indemnified Tax paid or
reimbursed by Lessee, such Indemnitee shall, within thirty (30) days
thereafter, remit the amount of such refund (or tax savings) to Lessee,
provided that the amount so remitted shall not exceed the lesser of:
(i) the amount received by such Indemnitee as a refund (or tax savings)
net of all reasonable costs and expenses incurred by such Indemnitee in
connection with obtaining and paying such amount; and (ii) the
remainder of (A) the amount of all prior payments by Lessee to such
Indemnitee with respect to Indemnified Taxes, plus any refunded
interest, less (B) the amount of all prior payments by such Indemnitee
to Lessee under this Subparagraph 2.13(e); provided that (1) any
disallowance or other loss of such refund (or tax savings) shall be
treated as an "Indemnified Tax" without regard to all exclusions and
(2) no such remittance shall be made if any Default or Event of Default
has occurred and is continuing.
2.14. Funding Loss Indemnification. Subject to Paragraph 2.16, if
Lessee shall (a) pay all or any portion of the Outstanding Lease Amount on any
day other than the last day of a Rental Period therefor (whether an optional
payment, a mandatory payment or otherwise) or (b) cancel or otherwise fail to
consummate the Acquisition Request which has been delivered to Agent (whether as
a result of the failure to satisfy any applicable conditions or otherwise), then
Lessee shall, within five (5) Business Days after demand by Lessor or any
Participant, reimburse such Person for and hold such Person harmless from all
costs and losses incurred by such Person as a result of such payment,
cancellation or failure. Lessee understands that such costs and losses may
include, without limitation, losses incurred by Lessor or a Participant as a
result of funding and other contracts entered into by such Person to fund its
portion of the Outstanding Lease Amount. Each Person demanding payment under
this Paragraph 2.14 shall deliver to Lessee, with a copy to Agent, a certificate
setting forth the amount of costs and losses for which demand is made, which
certificate shall set forth in reasonable detail the calculation of the amount
demanded. Such a certificate so delivered to Lessee shall constitute prima facie
evidence of such costs and losses. The obligations of Lessee under this
Paragraph 2.14 shall survive the payment and performance of the Lessee
Obligations and the termination of this Agreement.
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2.15. Replacement of Participants. If any Participant shall (a) become
a Defaulting Participant more than one (1) time in a period of twelve (12)
consecutive months, (b) continue as a Defaulting Participant for more than five
(5) Business Days at any time, (c) deliver, pursuant to Subparagraph 2.12(b), a
notice of a Change of Law which does not affect any other Participant, or (d)
demand any payment under Subparagraph 2.12(c), 2.12(d) or 2.13(a) for a reason
which is not applicable to any other Participant, then Agent may (or upon the
written request of Lessee, shall) replace such Participant (the "affected
Participant"), or cause such affected Participant to be replaced, with another
financial institution (the "replacement Participant") satisfying the
requirements of an Assignee Participant under Subparagraph 7.05(b), by having
the affected Participant sell and assign all of its rights and obligations under
this Agreement and the other Operative Documents to the replacement Participant
pursuant to Subparagraph 7.05(b); provided, however, that if Lessee seeks to
exercise such right, it must do so within sixty (60) days after it first knows
or should have known of the occurrence of the event or events giving rise to
such right, and no Lessor Party shall have any obligation to identify or locate
a replacement Participant for Lessee. Upon receipt by any affected Participant
of a written notice from Agent stating that Agent is exercising the replacement
right set forth in this Paragraph 2.15, such affected Participant shall sell and
assign all of its rights and obligations under this Agreement and the other
Operative Documents to the replacement Participant pursuant to an Assignment
Agreement and Subparagraph 7.05(b) for a purchase price equal to the sum of its
portion of the Outstanding Lease Amount, the accrued and unpaid portion of the
Base Rent relating to such portion and its ratable share of all fees to which it
is entitled.
2.16. Limitation on Collection of Costs. Lessee shall not be obligated
to reimburse any Lessor Party for any cost or expense incurred by such Lessor
Party pursuant to Paragraph 2.12, Paragraph 2.13 or Paragraph 2.14 unless demand
for such payment is made by such Lessor Party to Lessee within one (1) year
after the date such cost or expense was incurred.
SECTION 3. CONDITIONS PRECEDENT.
3.01. Acquisition Advance. The obligation of Lessor to make the
Acquisition Advance hereunder (and the obligations of the Participants to fund
their respective Proportionate Shares of the Acquisition Advance) is (are)
subject to receipt by Agent, on or prior to the Closing Date, of each item
listed in Schedule 3.01).
3.02. Other Conditions Precedent. The occurrence of each Credit Event
(including the making of the Acquisition Advance by Lessor and the funding of
the Acquisition Advance by the Participants) is subject to the further
conditions that, on the date such Credit Event is to occur and after giving
effect to such Credit Event, the following shall be true and correct:
(a) The representations and warranties of Lessee set forth in
Paragraph 4.01 and in the other Operative Documents are true and
correct in all material respects as if made on such date (except for
representations and warranties expressly made as of a specified date,
which shall be true as of such date);
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(b) No Default has occurred and is continuing or will result
from such Credit Event; and
(c) All of the Operative Documents are in full force and
effect.
The submission by Lessee to Lessor and Agent of the Acquisition Request and a
Notice of Return Option Exercise shall be deemed to be a representation and
warranty by Lessee that each of the statements set forth above in this Paragraph
3.02 is true and correct as of the date of such request and notice.
3.03. Covenant to Deliver. Lessee agrees (not as a condition but as a
covenant) to deliver to Lessor and Agent each item required to be delivered to
Lessor and Agent as a condition to the Acquisition Advance if the Acquisition
Advance is made. Lessee expressly agrees that the making of the Acquisition
Advance prior to the receipt by Lessor and Agent of any such item shall not
constitute a waiver by Lessor, Agent or any Participant of Lessee's obligation
to deliver such item, unless expressly waived in writing.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
4.01. Lessee's Representations and Warranties. In order to induce the
Lessor Parties to enter into this Agreement and the other Operative Documents to
which they are parties, Lessee hereby represents and warrants to the Lessor
Parties, except as has been previously disclosed to the Lessor Parties in the
Disclosure Letter, the Environmental Reports or the Financial Statements
delivered on or before the date of this Agreement, as follows:
(a) Due Incorporation, Qualification, etc.
(i) Lessee (A) is a corporation duly organized,
validly existing and in good standing under the laws of its
state of incorporation; (B) has the power and authority to
own, lease and operate its properties and carry on its
business as now conducted; and (C) is duly qualified, licensed
to do business and in good standing as a foreign corporation
in each jurisdiction where the failure to be so qualified or
licensed is reasonably likely to have a Material Adverse
Effect.
(ii) Each Material Subsidiary and, to the knowledge
of Lessee, each other Subsidiary, (A) is a corporation duly
organized, validly existing and in good standing under the
laws of its state of incorporation; (B) has the power and
authority to own, lease and operate its properties and carry
on its business as now conducted; and (C) is duly qualified,
licensed to do business and in good standing as a foreign
corporation in each jurisdiction where the failure to be so
qualified or licensed is reasonably likely to have a Material
Adverse Effect.
(b) Authority. The execution, delivery and performance by
Lessee of each Operative Document executed, or to be executed, by
Lessee and the consummation of the
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transactions contemplated thereby (i) are within the power of Lessee
and (ii) have been duly authorized by all necessary actions on the part
of Lessee.
(c) Enforceability. Each Operative Document executed, or to be
executed, by Lessee has been, or will be, duly executed and delivered
by Lessee and constitutes, or will constitute, a legal, valid and
binding obligation of Lessee, enforceable against Lessee in accordance
with its terms, except as limited by bankruptcy, insolvency or other
laws of general application relating to or affecting the enforcement of
creditors' rights generally and general principles of equity.
(d) Non-Contravention. The execution and delivery by Lessee of
the Operative Documents executed by Lessee and the performance and
consummation of the transactions contemplated thereby do not (i)
violate any Requirement of Law applicable to Lessee; (ii) violate any
provision of, or result in the breach or the acceleration of, or
entitle any other Person to accelerate (whether after the giving of
notice or lapse of time or both), any Contractual Obligation of Lessee;
or (iii) result in the creation or imposition of any Lien (or the
obligation to create or impose any Lien) upon any property, asset or
revenue of Lessee (except such Liens as may be created in favor of
Lessor or Agent pursuant to this Agreement or the other Operative
Documents).
(e) Approvals. No consent, approval, order or authorization
of, or registration, declaration or filing with, any Governmental
Authority or other Person (including, without limitation, the
shareholders of any Person) is required in connection with the
execution and delivery of the Operative Documents executed by Lessee
and the performance and consummation by Lessee of the transactions
contemplated thereby, except such as have been made or obtained and are
in full force and effect.
(f) No Violation or Default. Neither Lessee, nor any of its
Material Subsidiaries, nor to the best knowledge of Lessee any other
Subsidiary, is in violation of or in default with respect to (i) any
Requirement of Law applicable to such Person; (ii) any Contractual
Obligation of such Person (nor is there any waiver in effect which, if
not in effect, would result in such a violation or default), where, in
each case, such violation or default is reasonably likely to have a
Material Adverse Effect. Without limiting the generality of the
foregoing, neither Lessee, nor any of its Material Subsidiaries, nor to
the best knowledge of Lessee any other Subsidiary, (A) has violated any
Environmental Laws, (B) has any liability under any Environmental Laws
or (C) has received notice or other communication of an investigation
or is under investigation by any Governmental Authority having
authority to enforce Environmental Laws, where such violation,
liability or investigation is reasonably likely to have a Material
Adverse Effect. No Default has occurred and is continuing.
(g) Litigation. No actions (including, without limitation,
derivative actions), suits, proceedings or investigations are pending
or, to the knowledge of Lessee, threatened against Lessee or any of its
Subsidiaries at law or in equity in any court or before any other
Governmental Authority which (i) is reasonably likely (alone or in the
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aggregate) to have a Material Adverse Effect or (ii) seeks to enjoin,
either directly or indirectly, the execution, delivery or performance
by Lessee of the Operative Documents or the transactions contemplated
thereby.
(h) Title; Possession Under Leases. Lessee and its
Subsidiaries own and have good and marketable title, or a valid
leasehold interest in, all their respective properties and assets as
reflected in the most recent Financial Statements delivered to Agent
(except those assets and properties disposed of in the ordinary course
of business or otherwise in compliance with this Agreement since the
date of such Financial Statements) and all respective assets and
properties acquired by Lessee and its Subsidiaries since such date
(except those disposed of in the ordinary course of business or
otherwise in compliance with this Agreement). Such assets and
properties are subject to no Lien, except for Permitted Liens. Each of
Lessee and its Subsidiaries has complied with all material obligations
under all material leases to which it is a party and all such leases
are in full force and effect (except such leases that have expired in
accordance with their terms or have been replaced by similar leases or
where such failure to comply is not reasonably likely to have a
Material Adverse Effect). Each of Lessee and its Subsidiaries enjoys
peaceful and undisturbed possession under such leases.
(i) Financial Statements. The Financial Statements of Lessee
and its Subsidiaries which have been delivered to Agent, (i) are in
accordance with the books and records of Lessee and its Subsidiaries,
which have been maintained in accordance with good business practice;
(ii) have been prepared in conformity with GAAP; and (iii) fairly
present the financial conditions and results of operations of Lessee
and its Subsidiaries as of the date thereof and for the period covered
thereby. Neither Lessee nor any of its Subsidiaries has any Contingent
Obligations, liability for taxes or other outstanding obligations which
are material in the aggregate, except as disclosed in the audited
Financial Statements dated September 30, 1998, furnished by Lessee to
Agent prior to the date hereof, or in the Financial Statements
delivered to Agent pursuant to clause (i) or (ii) of Subparagraph 5.01.
(j) Equity Securities. To the knowledge of Lessee, all
outstanding Equity Securities of Lessee are duly authorized, validly
issued, fully paid and non-assessable.
(k) No Agreements to Sell Assets; Etc. Except as otherwise
permitted by Subparagraph 5.02(c) or Subparagraph 5.02(d), neither
Lessee nor any of its Subsidiaries has any legal obligation, absolute
or contingent, to any Person to sell the assets of Lessee or any of its
Subsidiaries (other than sales in the ordinary course of business), or
to effect any merger, consolidation or other reorganization of Lessee
or any of its Subsidiaries or to enter into any agreement with respect
thereto.
(l) Employee Benefit Plans.
(i) Based on the latest valuation of each Employee
Benefit Plan that either Lessee or any ERISA Affiliate
maintains or contributes to, or has any obligation under
(which occurred within twelve months of the date of this
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representation), the aggregate benefit liabilities of such
plan within the meaning of Section 4001 of ERISA did not
exceed the aggregate value of the assets of such plan. Neither
Lessee nor any ERISA Affiliate has any liability with respect
to any post-retirement benefit under any Employee Benefit Plan
which is a welfare plan (as defined in section 3(1) of ERISA),
other than liability for health plan continuation coverage
described in Part 6 of Title I(B) of ERISA, which liability
for health plan contribution coverage is not reasonably likely
to have a Material Adverse Effect.
(ii) Each Employee Benefit Plan complies, in both
form and operation, in all material respects, with its terms,
ERISA and the IRC, and no condition exists or event has
occurred with respect to any such plan which would result in
the incurrence by either Lessee or any ERISA Affiliate of any
material liability, fine or penalty. Each Employee Benefit
Plan, related trust agreement, arrangement and commitment of
Lessee or any ERISA Affiliate is legally valid and binding and
in full force and effect. No Employee Benefit Plan is being
audited or investigated by any government agency or is subject
to any pending or threatened claim or suit. Neither Lessee nor
any ERISA Affiliate nor any fiduciary of any Employee Benefit
Plan has engaged in a prohibited transaction under section 406
of ERISA or section 4975 of the IRC.
(iii) Neither Lessee nor any ERISA Affiliate
contributes to or has any material contingent obligations to
any Multiemployer Plan. Neither Lessee nor any ERISA Affiliate
has incurred any material liability (including secondary
liability) to any Multiemployer Plan as a result of a complete
or partial withdrawal from such Multiemployer Plan under
Section 4201 of ERISA or as a result of a sale of assets
described in Section 4204 of ERISA. Neither Lessee nor any
ERISA Affiliate has been notified that any Multiemployer Plan
is in reorganization or insolvent under and within the meaning
of Section 4241 or Section 4245 of ERISA or that any
Multiemployer Plan intends to terminate or has been terminated
under Section 4041A of ERISA.
(m) Other Regulations. Lessee is not subject to regulation
under the Investment Company Act of 1940, the Public Utility Holding
Company Act of 1935, the Federal Power Act, any state public utilities
code or to any other Governmental Rule limiting its ability to incur
indebtedness.
(n) Patent and Other Rights. Lessee and its Subsidiaries own
or license under validly existing agreements, all patents, licenses,
trademarks, trade names, trade secrets, service marks, copyrights and
all rights with respect thereto, which are required to conduct their
businesses as now conducted, except to the extent that failure to own
or license the same could not reasonably be expected to have a Material
Adverse Effect.
(o) Governmental Charges and Other Indebtedness. Lessee and
its Material Subsidiaries have filed or caused to be filed all tax
returns which are required to be filed
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by them. Lessee and its Subsidiaries have paid, or made provision for
the payment of, all taxes and other Governmental Charges which have or
may have become due pursuant to said returns or otherwise and all other
indebtedness, except such Governmental Charges or indebtedness, if any,
which are being contested in good faith and as to which adequate
reserves (determined in accordance with GAAP) have been provided or
which are not reasonably likely to have a Material Adverse Effect if
unpaid.
(p) Margin Stock. Lessee owns no Margin Stock which, in the
aggregate, would constitute a substantial part of the assets of Lessee,
and no proceeds of any Loan will be used to purchase or carry, directly
or indirectly, any Margin Stock or to extend credit, directly or
indirectly, to any Person for the purpose of purchasing or carrying any
Margin Stock.
(q) Subsidiaries, etc. Set forth in Schedule 4.01(q) (as
supplemented by Lessee from time to time in a written notice to Agent)
is a complete list of all of Lessee's Subsidiaries, the jurisdiction of
incorporation of each, the classes of Equity Securities of each and the
number of shares and percentages of shares of each such class owned
directly or indirectly by Lessee.
(r) Catastrophic Events. Neither Lessee, nor any of its
Material Subsidiaries, nor to the knowledge of Lessee any other
Subsidiary, and none of their properties is or has been affected by any
fire, explosion, accident, strike, lockout or other labor dispute,
drought, storm, hail, earthquake, embargo, act of God or other casualty
that is reasonably likely to have a Material Adverse Effect. There are
no disputes presently subject to grievance procedure, arbitration or
litigation under any of the collective bargaining agreements,
employment contracts or employee welfare or incentive plans to which
Lessee, any of its Material Subsidiaries, or to the knowledge of Lessee
any of its Subsidiaries, is a party, and there are no strikes,
lockouts, work stoppages or slowdowns, or, to the best knowledge of
Lessee, jurisdictional disputes or organizing activities occurring or
threatened which alone or in the aggregate are reasonably likely to
have a Material Adverse Effect.
(s) No Material Adverse Effect. No event has occurred and is
continuing and no condition exists which is reasonably likely to have a
Material Adverse Effect.
(t) The Property.
(i) The Land consists of approximately 43.5 acres
located in the City of Scotts Valley, California, more
particularly described in Exhibit A.
(ii) The Lessor Improvements on the Land consist of a
nine (9) building, multi-story facility containing
approximately 210,140 square feet of floor area, together with
parking, landscaping, recreational and related facilities,
amenities and improvements. The Lessor Improvements are in
good condition and fit for use as an administrative office and
a manufacturing, research and development facility.
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(iii) Access to the Land for pedestrians and motor
vehicles from publicly dedicated streets and public highways
is available. All utilities required to adequately service the
Lessor Improvements for Lessee's use are available and "tapped
on" and hooked up pursuant to adequate permits (including any
that may be required under applicable Environmental Laws
except where the absence of such permits will not have a
Material Adverse Effect).
(iv) No portion of the Property is located in an area
identified as a special flood hazard area by the Federal
Emergency Management Agency or other applicable Governmental
Authority, or if any portion of the Property is located in
such an area, flood insurance has been obtained for the
Property or such portion thereof in accordance with Paragraph
3.03 of the Lease Agreement and the National Flood Insurance
Act of 1968.
(v) All of the Property complies and will comply at
all times with all applicable Governmental Rules (including
Title III of the Americans with Disabilities Act; except as
has been previously disclosed to the Lessor Parties in writing
in the Environmental Reports, Environmental Laws; and zoning,
land use, building, planning and fire laws, rules, regulations
and codes) and Insurance Requirements, except for violations
which are not reasonably likely to have a Material Adverse
Effect. Except as has been previously disclosed to the Lessor
Parties in writing in the Environmental Reports, no Hazardous
Materials have been used, generated, manufactured, stored,
treated, disposed of, transported or present on or released or
discharged from the Property in any manner that is reasonably
likely to have a Material Adverse Effect. Except as has been
previously disclosed to the Lessor Parties in writing, there
are no claims or actions which are reasonably likely to have a
Material Adverse Effect pending or, to Lessee's knowledge,
threatened against any of the Property by any Governmental
Authority or any other Person relating to Hazardous Materials
or pursuant to any Environmental Laws.
(vi) None of the Lessor Improvements encroach or will
at any time encroach onto any adjoining land in any manner
that is reasonably likely to have a Material Adverse Effect,
except as permitted by express written and recorded
encroachment agreements approved by Agent or as affirmatively
insured against by appropriate title insurance.
(vii) All licenses, approvals, authorizations,
consents, permits, easements and rights-of-way which are
required for the use of any of the Property and which are
reasonably likely to have a Material Adverse Effect if not
obtained have been obtained or, if not yet required, will be
obtained before required.
(viii) After the purchase of the Property on the
Closing Date in accordance with the Operative Documents,
Lessor will have good and valid fee simple title to such
Property, subject to no Liens except for Permitted Property
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Liens. As of the Closing Date, no Person, other than Lessee,
leases or subleases all or any portion of the Property.
(u) Chief Executive Office. Lessee's chief executive office is
located at 000 Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxx, XX 00000, or at such
other location as Lessee may notify Lessor from time to time in
accordance with Subparagraph 5.01(g).
(v) Year 2000 Compatibility. Lessee and its Subsidiaries have
reviewed the areas within their business and operations which could be
adversely affected by, and have developed or are developing a program
to address on a timely basis, the "Year 2000 Problem" (that is, the
risk that computer applications used by Lessee and its Subsidiaries may
be unable to recognize and perform properly date-sensitive functions
involving certain dates prior to and any date on or after December 31,
1999), and have made related appropriate inquiry of material suppliers
and vendors. Based on such review and program, Lessee believes that the
"Year 2000 Problem" will not have a Material Adverse Effect.
(w) Accuracy of Information Furnished. None of the Operative
Documents and none of the other certificates, statements or information
furnished to any Lessor Party by or on behalf of Lessee or any of its
Subsidiaries in connection with the Operative Documents or the
transactions contemplated thereby contains or will contain any untrue
statement of a material fact or omits or will omit to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Lessee shall be deemed to have reaffirmed, for the benefit of the Lessor
Parties, each representation and warranty contained in this Paragraph 4.01 on
and as of the date of each Credit Event (except for representations and
warranties expressly made as of a specified date, which shall be true as of such
date).
4.02. Lessor's Representations and Warranties. In order to induce
Lessee, Agent and the Participants to enter into this Agreement and the other
Operative Documents to which they are parties, Lessor hereby represents and
warranties to Lessee, Agent and the Participants as follows:
(a) Due Organization, Qualification, etc. Lessor (i) is a
corporation duly organized, validly existing and in good standing under
the laws of its state of incorporation and (ii) has the power and
authority to own, lease and operate its properties and carry on its
business as now conducted. Lessor is a Wholly-Owned Subsidiary of
KeyBank.
(b) Authority. The execution, delivery and performance by
Lessor of each Operative Document executed, or to be executed, by
Lessor and the consummation of the transactions contemplated thereby
(i) are within the power of Lessor and (ii) have been duly authorized
by all necessary actions on the part of Lessor.
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(c) Enforceability. Each Operative Document executed, or to be
executed, by Lessor has been, or will be, duly executed and delivered
by Lessor and constitutes, or will constitute, a legal, valid and
binding obligation of Lessor, enforceable against Lessor in accordance
with its terms, except as limited by bankruptcy, insolvency or other
laws of general application relating to or affecting the enforcement of
creditors' rights generally and general principles of equity.
(d) Non-Contravention. The execution and delivery by Lessor of
the Operative Documents executed by Lessor and the performance and
consummation of the transactions contemplated thereby do not (i)
violate any Requirement of Law applicable to Lessor; (ii) violate any
provision of, or result in the breach or the acceleration of, or
entitle any other Person to accelerate (whether after the giving of
notice or lapse of time or both), any Contractual Obligation of Lessor;
or (iii) result in the creation or imposition of any Lien (or the
obligation to create or impose any Lien) upon any property, asset or
revenue of Lessor (except such Liens as may be created in favor of
Agent pursuant to this Agreement or the other Operative Documents).
(e) Approvals. No consent, approval, order or authorization
of, or registration, declaration or filing with, any Governmental
Authority or other Person (including, without limitation, the
shareholders of any Person) is required in connection with the
execution and delivery of the Operative Documents executed by Lessor
and the performance and consummation of the transactions contemplated
thereby, except such as have been made or obtained and are in full
force and effect.
(f) Litigation. No actions (including, without limitation,
derivative actions), suits, proceedings or investigations are pending
or, to the knowledge of Lessor, threatened against Lessor at law or in
equity in any court or before any other Governmental Authority which
(i) is reasonably likely (alone or in the aggregate) to materially and
adversely affect the ability of Lessor to perform its obligations under
the Operative Documents to which it is a party or (ii) seeks to enjoin,
either directly or indirectly, the execution, delivery or performance
by Lessor of the Operative Documents or the transactions contemplated
thereby.
(g) Other Regulations. Lessor is not subject to regulation
under the Investment Company Act of 1940, the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce
Act, any state public utilities code or to any other Governmental Rule
limiting its ability to incur indebtedness.
(h) Chief Executive Office. Lessor's chief executive office is
located at 00 Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000.
4.03. Participants' Representations and Warranties. In order to induce
Lessee, Lessor and Agent to enter into this Agreement and the other Operative
Documents to which they are parties, each Participant hereby represents and
warranties to Lessee, Lessor and Agent as follows:
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(a) Due Organization, Qualification, etc. Such Participant (i)
is a legal entity duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization and (ii) has the
power and authority to own, lease and operate its properties and carry
on its business as now conducted.
(b) Authority. The execution, delivery and performance by such
Participant of each Operative Document executed, or to be executed, by
such Participant and the consummation of the transactions contemplated
thereby (i) are within the power of such Participant and (ii) have been
duly authorized by all necessary actions on the part of such
Participant.
(c) Enforceability. Each Operative Document executed, or to be
executed, by such Participant has been, or will be, duly executed and
delivered by such Participant and constitutes, or will constitute, a
legal, valid and binding obligation of such Participant, enforceable
against such Participant in accordance with its terms, except as
limited by bankruptcy, insolvency or other laws of general application
relating to or affecting the enforcement of creditors' rights generally
and general principles of equity.
(d) Non-Contravention. The execution and delivery by such
Participant of the Operative Documents executed by such Participant and
the performance and consummation of the transactions contemplated
thereby do not (i) violate any Requirement of Law applicable to such
Participant; (ii) violate any provision of, or result in the breach or
the acceleration of, or entitle any other Person to accelerate (whether
after the giving of notice or lapse of time or both), any Contractual
Obligation of such Participant; or (iii) result in the creation or
imposition of any Lien (or the obligation to create or impose any Lien)
upon any property, asset or revenue of such Participant (except such
Liens as may be created in favor of Lessor or Agent pursuant to this
Agreement or the other Operative Documents).
(e) Approvals. No consent, approval, order or authorization
of, or registration, declaration or filing with, any Governmental
Authority or other Person (including, without limitation, the
shareholders of any Person) is required in connection with the
execution and delivery of the Operative Documents executed by such
Participant and the performance and consummation of the transactions
contemplated thereby, except such as have been made or obtained and are
in full force and effect.
(f) Litigation. No actions (including, without limitation,
derivative actions), suits, proceedings or investigations are pending
or, to the knowledge of such Participant, threatened against such
Participant at law or in equity in any court or before any other
Governmental Authority which (i) is reasonably likely (alone or in the
aggregate) to materially and adversely affect the ability of such
Participant to perform its obligations under the Operative Documents to
which it is a party or (ii) seeks to enjoin, either directly or
indirectly, the execution, delivery or performance by such Participant
of the Operative Documents or the transactions contemplated thereby.
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(g) Own Account. Such Participant is acquiring its
participation interest hereunder for its own account for investment and
not with a view to any distribution (as such term is used in Section
2(11) of the Securities Act of 1933) thereof, and, if in the future it
should decide to dispose of its participation interest, it understands
that it may do so only in compliance with the Securities Act of 1933
and the rules and regulations of the Securities and Exchange Commission
thereunder and any applicable state securities laws.
SECTION 5. COVENANTS.
5.01. Lessee's Affirmative Covenants. Until the termination of this
Agreement and the satisfaction in full by Lessee of all Lessee Obligations,
Lessee will comply, and will cause compliance, with the following affirmative
covenants, unless Lessor and Required Participants shall otherwise consent in
writing:
(a) Financial Statements, Reports, etc. Lessee shall furnish
to Agent, with sufficient copies for Lessor and each Participant, the
following, each in such form and such detail as Agent, Lessor or the
Required Participants shall reasonably request:
(i) As soon as available and in no event later than
forty-five (45) days after the last day of each fiscal quarter
of Lessee (other than the last quarter of each fiscal year), a
copy of the Financial Statements of Lessee and its
Subsidiaries (prepared on a consolidated basis) for such
quarter and for the fiscal year to date, certified by the
chief financial officer or treasurer of Lessee to present
fairly the financial condition, results of operations and
other information reflected therein and to have been prepared
in accordance with GAAP (subject to normal year-end audit
adjustments);
(ii) As soon as available and in no event later than
one hundred, five (105) days after the close of each fiscal
year of Lessee, (A) copies of the audited Financial Statements
of Lessee and its Subsidiaries (prepared on a consolidated
basis) for such year, audited by Deloitte & Touche or other
independent certified public accountants of recognized
national standing or otherwise reasonably acceptable to Agent
and Required Participants, (B) copies of the unqualified
opinions (or qualified opinions reasonably acceptable to Agent
and Required Participants) delivered by such accountants in
connection with all such Financial Statements and (C)
certificates of such accountants stating that in making the
examination necessary for their opinion they have reviewed
Paragraph 5.03 and have obtained no knowledge of any violation
by Lessee and its Subsidiaries of the covenants set forth
therein, or if, in the opinion of such accountants, any such
violation has occurred, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and
year-end Financial Statements required by the foregoing
clauses (i) and (ii), a compliance certificate of the chief
financial officer or treasurer of Lessee in a form acceptable
to Agent (a "Compliance Certificate") which (A) states that no
Default has occurred and is
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continuing, or, if any such Default has occurred and is
continuing, a statement as to the nature thereof and what
action Lessee proposes to take with respect thereto; (B) sets
forth, for the quarter or year covered by such Financial
Statements or as of the last day of such quarter or year (as
the case may be), the calculation of the financial ratios and
tests provided in Paragraph 5.03; (C) states that the Year
2000 remediation efforts of Lessee and its Subsidiaries are
proceeding as scheduled; and (D) indicates whether an auditor,
regulator or third party consultant has issued a management
letter or other communication regarding the Year 2000
exposure, program or progress of Lessee and/or its
Subsidiaries;
(iv) As soon as available and in no event later than
forty-five (45) days after the last day of each fiscal quarter
of Lessee, a certificate of the chief financial officer or
treasurer of Lessee which sets forth, for the consecutive four
quarter period ending on the last day of such quarter, the
calculation of Lessee's EBITDA and Senior Debt/EBITDA Ratio
for such period;
(v) As soon as possible and in no event later than
five (5) Business Days after any officer of Lessee knows of
the occurrence or existence of (A) any Reportable Event under
any Employee Benefit Plan or Multiemployer Plan; (B) any
actual or threatened litigation, suits, claims or disputes
against Lessee or any of its Subsidiaries involving potential
monetary damages payable by Lessee or its Subsidiaries of
$2,000,000 or more (alone or in the aggregate); (C) any other
event or condition which is reasonably likely to have a
Material Adverse Effect; or (D) any Default; the statement of
the chief financial officer or treasurer of Lessee setting
forth details of such event, condition or Default and the
action which Lessee proposes to take with respect thereto;
(vi) As soon as available and in no event later than
ten (10) Business Days after they are sent, made available or
filed, copies of (A) all registration statements and reports
filed by Lessee or any of its Subsidiaries with any securities
exchange or the Securities and Exchange Commission (including,
without limitation, all 10-Q, 10-K and 8-Q reports); (B) all
reports, proxy statements and financial statements sent or
made available by Lessee or any of its Subsidiaries to its
security holders; and (C) all press releases and other similar
public announcements concerning any material developments in
the business of Lessee or any of its Subsidiaries made
available by Lessee or any of its Subsidiaries to the public
generally;
(vii) As soon as available and in no event later than
one hundred, twenty (120) days after the first day of each
fiscal year of Lessee, the consolidated plan and forecast of
Lessee and its Subsidiaries for such fiscal year and the next
two succeeding years;
(viii) As soon as possible and in no event later than
thirty (30) days after the establishment or acquisition by
Lessee or any of its Subsidiaries of any new
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Subsidiary or any new Equity Securities of any Existing
Subsidiary, written notice thereof; and
(ix) Such other instruments, agreements,
certificates, opinions, statements, documents and information
relating to the operations or condition (financial or
otherwise) of Lessee or its Subsidiaries, and compliance by
Lessee with the terms of this Agreement and the other
Operative Documents as Agent may from time to time reasonably
request.
(b) Books and Records. Lessee and its Subsidiaries shall at
all times keep proper books of record and account in which full, true
and correct entries will be made of their transactions in accordance
with GAAP.
(c) Inspections.
(i) If no Default then exists, at such Lessor Party's
expense, Lessee and its Subsidiaries shall permit any Person
designated by any Lessor Party, upon reasonable notice and
during normal business hours, to visit and inspect any of the
properties and offices of Lessee and its Subsidiaries, to
examine the books and records of Lessee and its Subsidiaries
and make copies thereof and to discuss the affairs, finances
and business of Lessee and its Subsidiaries with, and to be
advised as to the same by, their officers, auditors and
accountants, all at such times and intervals as any Lessor
Party may reasonably request.
(ii) If a Default then exists, at the expense of
Lessee, Lessee and its Subsidiaries shall permit any Person
designated by any Lessor Party, to visit and inspect any of
the properties and offices of Lessee and its Subsidiaries, to
examine the books and records of Lessee and its Subsidiaries
and make copies thereof and to discuss the affairs, finances
and business of Lessee and its Subsidiaries with, and to be
advised as to the same by, their officers, auditors and
accountants, all at such times and intervals as any Lessor
Party may reasonably request.
(d) Insurance. In addition to the insurance requirements set
forth in the Lease Agreement with respect to the Property, Lessee and
its Subsidiaries shall:
(i) Carry and maintain insurance of the types and in
the amounts customarily carried from time to time during the
term of this Agreement by others engaged in substantially the
same business as such Person and operating in the same
geographic area as such Person, including, but not limited to,
fire, public liability, property damage and worker's
compensation;
(ii) Carry and maintain each policy for such
insurance with financially sound insurers; and
(iii) Deliver to Agent from time to time, as Agent
may reasonably request, schedules setting forth all insurance
then in effect.
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(e) Governmental Charges and Other Indebtedness. Lessee and
its Material Subsidiaries shall promptly pay and discharge when due (i)
all taxes and other Governmental Charges prior to the date upon which
penalties accrue thereon, (ii) all indebtedness which, if unpaid, could
become a Lien upon the property of Lessee or its Subsidiaries (other
than Liens permitted under Subparagraph 5.02(b)) and (iii) all other
indebtedness which, in each case, if unpaid, is reasonably likely to
have a Material Adverse Effect, except such Indebtedness as may in good
faith be contested or disputed, or for which arrangements for deferred
payment have been made, provided that in each such case appropriate
reserves are maintained to the reasonable satisfaction of Agent.
(f) Use of Proceeds. Lessee shall not use any part of the
proceeds of the Acquisition Advance, directly or indirectly, for the
purpose of purchasing or carrying any Margin Stock or for the purpose
of purchasing or carrying or trading in any securities under such
circumstances as to involve Lessee or any Lessor Party in a violation
of Regulations T, U or X issued by the Federal Reserve Board.
(g) General Business Operations. Each of Lessee and its
Material Subsidiaries shall (i) preserve and maintain its corporate
existence and all of its rights, privileges and franchises reasonably
necessary to the conduct of its business(except as otherwise permitted
pursuant to Subparagraph 5.02(c) and Subparagraph 5.02(d)), (ii)
conduct its business activities in compliance with all Requirements of
Law and Contractual Obligations applicable to such Person, the
violation of which is reasonably likely to have a Material Adverse
Effect and (iii) keep all property useful and necessary in its business
in good working order and condition, ordinary wear and tear excepted.
Lessee shall maintain its chief executive office and principal place of
business in the United States and shall not relocate its chief
executive office or principal place of business outside of California
except upon not less than thirty (30) days prior written notice to
Agent.
(h) Year 2000 Compatibility. Each of Lessee and its
Subsidiaries shall take all acts reasonably necessary so that all
internal software, hardware, firmware, equipment, goods and systems
utilized by or material to their business operations or financial
condition will properly perform date sensitive functions before, during
and after the year 2000. At the request of Agent, Lessee shall provide
to Agent such certifications or other evidence of compliance with this
Subparagraph 5.01(h) as Agent may from time to time reasonably require.
5.02. Lessee's Negative Covenants. Until the termination of this
Agreement and the satisfaction in full by Lessee of all Lessee Obligations,
Lessee will comply, and will cause compliance, with the following negative
covenants, unless Lessor and Required Participants shall otherwise consent in
writing:
(a) Indebtedness. Neither Lessee nor any of its Subsidiaries
shall create, incur, assume or permit to exist any Indebtedness except
for the following ("Permitted Indebtedness"):
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(i) The Lessee Obligations under the Operative
Documents;
(ii) Indebtedness of Lessee and its Subsidiaries
listed in Schedule 5.02(a) of the Disclosure Letter and
existing on the date of this Agreement;
(iii) Indebtedness of Lessee and its Subsidiaries
arising from the endorsement of instruments for collection in
the ordinary course of Lessee's or a Subsidiary's business;
(iv) Indebtedness of Lessee and its Subsidiaries for
trade accounts payable, provided that (A) such accounts arise
in the ordinary course of business and (B) no material part of
such account is more than ninety (90) days (or such greater
number of days to which the payee shall agree) past due
(unless subject to a bona fide dispute and for which adequate
reserves have been established);
(v) Cash advances received from customers in the
ordinary course of business;
(vi) Indebtedness of Lessee and its Subsidiaries
under Rate Contracts, provided that all such arrangements are
entered into in connection with bona fide hedging operations
and not for speculation;
(vii) Indebtedness of Lessee and its Subsidiaries
under purchase money loans and Capital Leases incurred by
Lessee or any of its Subsidiaries to finance the acquisition
by such Person of real property, fixtures or equipment
provided that (A) in each case, (y) such Indebtedness is
incurred at the time of, or not later than one hundred twenty
(120) days after, the acquisition of the property so financed
and (z) such Indebtedness does not exceed the purchase price
of the property so financed and (B) the aggregate amount of
such Indebtedness outstanding at any time does not exceed ten
percent (10%) of Lessee's Tangible Net Worth on the last day
of the immediately preceding fiscal year;
(viii) Indebtedness of Lessee and its Subsidiaries
under initial or successive refinancings of any Indebtedness
permitted by clause (ii), (vii), (xii) or (xiii) hereof,
provided that (A) the principal amount of any such refinancing
does not exceed the principal amount of the Indebtedness being
refinanced (except to the extent any excess is otherwise
permitted by another clause of this Subparagraph 5.02(a)) and
(B) the material terms and provisions of any such refinancing
(including maturity, redemption, prepayment, default and
subordination provisions) are no less favorable to Lessor and
Participants than the Indebtedness being refinanced;
(ix) Indebtedness of Lessee and its Subsidiaries with
respect to surety, appeal, indemnity, performance or other
similar bonds in the ordinary course of business;
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(x) Indebtedness of Lessee and its Subsidiaries to
and among each other;
(xi) Indebtedness of any Subsidiary acquired by
Lessee or any of its Subsidiaries after the date of this
Agreement pursuant to Subparagraph 5.02(d), provided that (A)
such Indebtedness exists at the time such Subsidiary is so
acquired and (B) such Indebtedness was not created in
contemplation of such acquisition;
(xii) Indebtedness of Lessee under the Credit
Documents, provided that the aggregate principal amount of
such Indebtedness outstanding at any time does not exceed
$150,000,000;
(xiii) Indebtedness of Lessee under the ABN Synthetic
Lease Facility, provided that the aggregate amount of the
"Outstanding Lease Amount" (as such term is defined in the ABN
Synthetic Lease Facility) outstanding at any time does not
exceed $10,000,000;
(xiv) Subordinated Indebtedness of Lessee, provided
that the aggregate principal amount of such Indebtedness
outstanding at any time does not exceed $250,000,000; and
(xv) Other Indebtedness of Lessee and its
Subsidiaries, provided that the aggregate amount of such other
Indebtedness outstanding at any time does not exceed ten
percent (10%) of Lessee's Tangible Net Worth on the last day
of the immediately preceding fiscal year.
(b) Liens. Neither Lessee nor any of its Subsidiaries shall
create, incur, assume or permit to exist any Lien on or with respect to
any of its assets or property of any character, whether now owned or
hereafter acquired, except for the following ("Permitted Liens"):
(i) Liens in favor of any Lessor Party created by the
Operative Documents and securing the Lessee Obligations;
(ii) Liens listed in Schedule 5.02(b) of the
Disclosure Letter and existing on the date of this Agreement;
(iii) Liens for taxes or other Governmental Charges
not at the time delinquent or thereafter payable without
penalty or being contested in good faith, provided that
adequate reserves for the payment thereof have been
established in accordance with GAAP;
(iv) Liens of carriers, warehousemen, mechanics,
materialmen, vendors, and landlords and other similar Liens
imposed by law incurred in the ordinary course of business for
sums not overdue or being contested in good faith,
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provided that adequate reserves for the payment thereof have
been established in accordance with GAAP;
(v) (A) Deposits under workers' compensation,
unemployment insurance and social security laws or to secure
the performance of bids, tenders, contracts (other than for
the repayment of borrowed money) or leases, or to secure
statutory obligations of surety or appeal bonds or to secure
indemnity, performance or other similar bonds in the ordinary
course of business and (B) Liens on equipment under operating
leases entered into in the ordinary course of business;
(vi) Zoning restrictions, easements, rights-of-way,
title irregularities and other similar encumbrances, which
alone or in the aggregate are not substantial in amount and do
not materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business
of Lessee or any of its Subsidiaries and (B) Liens on
equipment under operating leases entered into in the ordinary
course of business;
(vii) Banker's Liens and similar Liens (including
set-off rights) in respect of bank deposits or brokerage
accounts;
(viii) Liens on any property or assets acquired, or
on the property or assets of any Persons acquired, by Lessee
or any of its Subsidiaries after the date of this Agreement
pursuant to Subparagraph 5.02(d), provided that (A) such Liens
exist at the time such property or assets or such Persons are
so acquired and (B) such Liens were not created in
contemplation of such acquisitions;
(ix) Judgement Liens, provided that such Liens do not
constitute an Event of Default under Subparagraph 5.01(h) of
the Lease Agreement;
(x) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties
and in connection with the importation of goods in the
ordinary course of Lessee's and its Subsidiaries' businesses;
(xi) Liens securing Indebtedness which constitutes
Permitted Indebtedness under clause (vii) of Subparagraph
5.02(a) provided that, in each case, such Lien (A) covers only
those assets, the acquisition of which was financed by such
Permitted Indebtedness, and (B) secures only such Permitted
Indebtedness;
(xii) Liens on the property or assets of any
Subsidiary of Lessee in favor of Lessee or any other
Subsidiary of Lessee;
(xiii) Liens incurred in connection with the
extension, renewal or refinancing of the Indebtedness secured
by the Liens described in clause (i), (ii),
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(xii) above or clause (xv) below, provided that any extension,
renewal or replacement Lien (A) is limited to the property
covered by the existing Lien and (B) secures Indebtedness
which is no greater in amount and has material terms no less
favorable to the Participants than the Indebtedness secured by
the existing Lien;
(xiv) Permitted Property Liens in the Property;
(xv) Liens securing the "Lessee Obligations" (as such
term is defined in the ABN Synthetic Lease Facility) of Lessee
arising under the ABN Synthetic Lease Facility or any
replacement thereof; and
(xvi) Other Liens, provided that the aggregate amount
of the Indebtedness secured by such other Liens does not
exceed at any time five percent (5%) of Lessee's Tangible Net
Worth on the last day of the immediately preceding fiscal
year;
Provided, however, that the foregoing exceptions shall not be construed
to permit any Liens, except for Permitted Property Liens, in any of the
Property or in any Cash Collateral.
(c) Asset Dispositions. Neither Lessee nor any of its Material
Subsidiaries shall sell, lease, transfer or otherwise dispose of all or
any part of its assets or property, whether now owned or hereafter
acquired, except for the following:
(i) Sales of inventory by Lessee and its Subsidiaries
in the ordinary course of their businesses;
(ii) Sales or other dispositions of surplus, damaged,
worn or obsolete equipment or inventory in the ordinary course
of their businesses;
(iii) Sales or other dispositions of Investments
permitted by clause (i) of Subparagraph 5.02(e) for not less
than fair market value;
(iv) Sales or assignments of defaulted receivables to
a collection agency in the ordinary course of business;
(v) Sales for cash of Accounts if such sales are on a
non-recourse basis and at a discount not exceeding fifteen
percent (15%) of the face amount of such Account; provided,
however, that the aggregate amount of Accounts which can be so
transferred in any fiscal quarter of Lessee shall not exceed
the lesser of Twenty-Five Million Dollars ($25,000,000) and
twenty percent (20%) of the gross amount of all Accounts
created during the immediately preceding fiscal quarter;
(vi) Sales of the capital stock of any non-Material
Subsidiary;
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(vii) Sales of the Property or any portion thereof
permitted by the Operative Documents;
(viii) Sales or other dispositions of assets or
property in connection with mergers and acquisitions permitted
under clause (i) of Subparagraph 5.02(d);
(ix) Licenses by Lessee or its Subsidiaries of its
patents, copyrights, trademarks, trade names and service marks
in the ordinary course of its business provided that, in each
case, the terms of the transaction are terms which then would
prevail in the market for similar transactions between
unaffiliated parties dealing at arm's length;
(x) Sales or other dispositions of assets and
property by Lessee to any of Lessee's Subsidiaries or by any
of Lessee's Subsidiaries to Lessee or any of its other
Subsidiaries, provided that unless such Subsidiary is not a
Material Subsidiary or any other Subsidiary in which
seventy-five percent (75%) or more of the equity interest in
such Subsidiary is owned by Lessee or a Material Subsidiary,
the terms of any such sales or other dispositions by or to
Lessee are terms which are no less favorable to Lessee then
would prevail in the market for similar transactions between
unaffiliated parties dealing at arm's length;
(xi) Transfers of property subject to synthetic
leases in connection with the replacement or refinancing of a
synthetic lease for such property, including without
limitation, the sale and leaseback of such property; and
(xii) Other sales, leases, transfers and disposals of
assets and property, provided that (A) no Default has occurred
and is continuing on the date of, or will result after giving
effect to, any such sale, lease, transfer or disposal and (B)
the aggregate book value of all such assets and property so
sold, leased, transferred or otherwise disposed of in any
fiscal year does not exceed five percent (5%) of Lessee's
Tangible Net Worth on the last day of the immediately
preceding fiscal year;
Provided, however, that the foregoing exceptions shall not be construed
to permit any sales, leases, transfers or other disposals of any of the
Property, except as expressly permitted by the Lease Agreement, or of
any of the Cash Collateral.
(d) Mergers, Acquisitions, Etc. Neither Lessee nor any of its
Subsidiaries shall consolidate with or merge into any other Person or
permit any other Person to merge into it, acquire any Person as a new
Subsidiary or acquire all or substantially all of the assets of any
other Person, except for the following:
(i) Lessee and its Subsidiaries may merge with each
other, provided that (A) in any such merger involving Lessee,
Lessee is the surviving corporation and (B) no Default has
occurred and is continuing on the date of, or will result
after giving effect to, any such merger; and
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(ii) Other acquisitions of any Person as a new
Subsidiary or of all or substantially all of the assets of any
other Person, provided that:
(A) No Default has occurred and is
continuing on the date of, or will result after
giving effect to, any such acquisition; and
(B) The aggregate consideration paid by
Lessee and its Subsidiaries for all such acquisitions
during the period from the date of the Credit
Agreement through the Scheduled Expiration Date does
not exceed (1) $50,000,000 in either cash or
seller-financed Indebtedness or (2) $100,000,000 in
Equity Securities of Lessee and its Subsidiaries
(calculated as of the date such consideration is
paid).
(e) Investments. Neither Lessee nor any of its Subsidiaries
shall make any Investment except for Investments in the following:
(i) Investments permitted by the investment policy of
Lessee set forth in Schedule 5.02(e) or, if any changes to the
investment policy of Lessee are hereafter duly approved by the
Board of Directors of Lessee, in any subsequent investment
policy which is the most recent investment policy delivered by
Lessee to Agent with a certificate of Lessee's chief financial
officer to the effect that such investment policy has been
duly approved by Lessee's Board of Directors and is then in
effect;
(ii) Investments received by Lessee and its
Subsidiaries in connection with the bankruptcy or
reorganization of customers and suppliers and in settlement of
delinquent obligations of, and other disputes with, customers
and suppliers arising in the ordinary course of business;
(iii) Investments by Lessee and its consolidated
Subsidiaries in each other;
(iv) Investments consisting of loans to employees and
officers for travel, relocation and other similar expenses
incurred in the ordinary course of business;
(v) Investments by Lessee and its Subsidiaries in
interest rate protection, currency swap and other Rate
Contracts (including without limitation the Synthetic Lease
Swap Agreement), provided that all such arrangements are
entered into in connection with bona fide hedging operations
and not for speculation;
(vi) Deposit accounts;
(vii) Endorsements of negotiable instruments in the
ordinary course of business;
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(viii) Investments permitted by Subparagraph 5.02(d);
(ix) Loans, advances or other extensions of credit to
suppliers in the ordinary course of Lessee's or such
Subsidiary's business as presently conducted which do not
exceed in the aggregate Seven Million Five Hundred Thousand
Dollars ($7,500,000) at any time outstanding; and
(x) Other Investments, provided that:
(A) No Default has occurred and is
continuing on the date of, or will result after
giving effect to, any such Investment; and
(B) The aggregate consideration paid by
Lessee and its Subsidiaries for all such Investments
in any fiscal year does not exceed $20,000,000.
(f) Dividends, Redemptions, Etc. Neither Lessee nor any of its
Subsidiaries shall pay any dividends or make any distributions on its
Equity Securities; purchase, redeem, retire, defease or otherwise
acquire for value any of its Equity Securities; return any capital to
any holder of its Equity Securities as such; make any distribution of
assets, Equity Securities, obligations or securities to any holder of
its Equity Securities as such; or set apart any sum for any such
purpose; except as follows:
(i) Either Lessee or any of its Subsidiaries may pay
dividends on its capital stock payable solely in such Person's
own capital stock;
(ii) Any Subsidiary of Lessee may pay dividends to
Lessee; and
(iii) Lessee may repurchase or redeem its capital
stock for cash, provided that, in each case, no Default has
occurred and is continuing on the date of, or will result
after giving effect to, any such payment, repurchase or
redemption.
(g) Change in Business. Neither Lessee nor any of its
Subsidiaries shall engage in any business other than the designing,
manufacturing, assembling, marketing, licensing and distributing, of
semiconductor capital equipment, optical or related equipment or
devices or components thereof, and related activities.
(h) Employee Benefit Plans. Neither Lessee nor any ERISA
Affiliate shall (A) adopt or institute any Employee Benefit Plan that
is an employee pension benefit plan within the meaning of Section 3(2)
of ERISA, (B) take any action which will result in the partial or
complete withdrawal, within the meanings of sections 4203 and 4205 of
ERISA, from a Multiemployer Plan, (C) engage or permit any Person to
engage in any transaction prohibited by section 406 of ERISA or section
4975 of the IRC involving any Employee Benefit Plan or Multiemployer
Plan which would subject Lessee or any ERISA Affiliate to any tax,
penalty or other liability including a liability to indemnify,
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(D) incur or allow to exist any accumulated funding deficiency (within
the meaning of section 412 of the IRC or section 302 of ERISA), (E)
fail to make full payment when due of all amounts due as contributions
to any Employee Benefit Plan or Multiemployer Plan, (F) fail to comply
with the requirements of section 4980B of the IRC or Part 6 of Title
I(B) of ERISA, or (G) adopt any amendment to any Employee Benefit Plan
which would require the posting of security pursuant to section
401(a)(29) of the IRC, where singly or cumulatively, the above would be
reasonably likely to have a Material Adverse Effect.
(i) Transactions With Affiliates. Neither Lessee nor any of
its Subsidiaries shall enter into any Contractual Obligation with any
Affiliate (other than Lessee or one of its Subsidiaries) or engage in
any other transaction with any such Affiliate except upon terms at
least as favorable to Lessee or such Subsidiary as an arms-length
transaction with unaffiliated Persons.
(j) Accounting Changes. Neither Lessee nor any of its
Subsidiaries shall (i) change its fiscal year (currently October 1
through September 30) or (ii) except as required by GAAP, change its
accounting practices in any manner which would affect Lessee's
compliance with Paragraph 5.03.
5.03. Lessee's Financial Covenants. Until the termination of this
Agreement and the satisfaction in full by Lessee of all Lessee Obligations,
Lessee will comply, and will cause compliance, with the following financial
covenants, unless Lessor and Required Participants shall otherwise consent in
writing:
(a) Quick Ratio. Lessee shall not permit its Quick Ratio on
the last day of any fiscal quarter to be less than 1.00.
(b) Fixed Charge Coverage Ratio. Lessee shall not permit its
Fixed Charge Coverage Ratio for any period set forth below to be less
than the ratio set forth opposite such period below:
The consecutive two-quarter
period beginning on April
3, 1999 and ending on
October 1, 1999 2.00;
The consecutive three-quarter
period beginning on April
3, 1999 and ending on
December 31, 1999 2.50;
The consecutive four-quarter
period beginning on April
3, 1999 and ending on
March 31, 2000 3.00;
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Each consecutive four-quarter
period ending on the
last day of each quarter
thereafter 3.50.
(c) Leverage Ratio. Lessee shall not permit its Leverage Ratio
on the last day of any fiscal quarter to be greater than 0.25.
(d) Tangible Net Worth. Lessee shall not permit its Tangible
Net Worth on the last day of any fiscal quarter (such date to be
referred to in this Subparagraph 5.03(d) as a "determination date")
which occurs after March 31, 1999 (such date to be referred to in this
Subparagraph 5.03(d) as the "base date") to be less than the sum on
such determination date of the following:
(i) Five Hundred Thirteen Million Three Hundred
Thousand Dollars ($513,300,000);
plus
(ii) Eighty percent (80%) of the sum of:
(A) The sum of Lessee's consolidated
quarterly net income (ignoring any quarterly losses)
for each fiscal quarter after the base date through
and including the fiscal quarter ending on the
determination date; and
(B) The after tax effect of the lesser of
(A) the sum of all Xxxxxxx-Xxxxxxx Charges taken by
Lessee and its Subsidiaries for each fiscal quarter
after the base date through and including the fiscal
quarter ending on the determination date, and (B)
fifteen million Dollars ($15,000,000);
plus
(iii) Seventy-five percent (75%) of the Net Proceeds
of all Equity Securities issued by Lessee and its Subsidiaries
(to Persons other than Lessee or its Subsidiaries) during the
period commencing on the base date and ending on the
determination date;
plus
(iv) Seventy-five percent (75%) of the principal
amount of all debt securities of Lessee and its Subsidiaries
converted into Equity Securities of Lessee and its
Subsidiaries during the period commencing on the base date and
ending on the determination date;
minus
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(v) The lesser of (A) the aggregate amount paid by
Lessee (including reasonable expenses incurred in connection
therewith) to repurchase up to one million shares of its
common stock during the period commencing on the base date and
ending on the determination date and (B) $10,000,000.
(e) Profitability.
(i) Lessee shall not permit its Adjusted Net Income
for the consecutive three-quarter period beginning on April 3,
1999 and ending on December 31, 1999 to be a loss.
(ii) Thereafter, Lessee shall not permit (A) its
Adjusted Net Income for any quarter to be a loss exceeding
$10,000,000, (B) its Adjusted Net Income to be a loss in more
than two quarters in any consecutive four-quarter period
(commencing with the consecutive four-quarter period ending on
March 31, 2000) or (C) its Adjusted Net Income for any
consecutive four-quarter period (commencing with the
consecutive four-quarter period ending on March 31, 2000) to
be a loss.
5.04. Lessor's Covenants. Until the termination of this Agreement and
the satisfaction in full by Lessor of all Lessor Obligations, Lessor will
comply, and will cause compliance, with the following covenants, unless Lessee
and Required Participants shall otherwise consent in writing:
(a) Use of Proceeds. Lessor shall use the proceeds of all
amounts delivered to Lessor by Participants pursuant to Subparagraph
2.05(a) solely to fund the Acquisition Advance.
(b) Lessor Liens. Lessor shall not create, incur, assume or
permit to exist any Lessor Lien (other than any Lien granted to Agent
or any Participant pursuant to the Operative Documents to secure the
Lessor Obligations) and shall promptly discharge, at its sole cost and
expense, any Lessor Lien on the Property (other than any Liens granted
to Agent or any Participant pursuant to the Operative Documents to
secure the Lessor Obligations); provided, however, that Lessor shall
not be required so to discharge any such Lessor Lien if (i) the same is
being (or promptly will be) contested in good faith by appropriate
proceedings diligently prosecuted and there is no immediate risk of
foreclosure upon any of the Property, and (ii) any such contest is
completed and all Lessor Liens are discharged on or prior to the
Expiration Date.
(c) Property Disposition. Lessor shall not sell, lease,
transfer or otherwise dispose of its right, title and interest in the
Property and/or the Operative Documents except as provided in
Subparagraph 2.11(b) or Subparagraph 7.05(d), as provided in the
Purchase Agreement or after retaining the Property following the
Expiration Date in accordance with the Purchase Agreement.
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(d) Chief Executive Office. Lessor shall not change its chief
executive office without giving Agent prompt written notice.
5.05. Participants' Covenants. Each Participant covenants that it will
not fund its portion of the Acquisition Advance with the assets of any "employee
benefit plan" (as defined in Section 3(3) of ERISA) which is subject to Title I
of ERISA or any "plan" (as defined in Section 4975(e)(1) of the IRC.
SECTION 6. LESSOR, AGENT AND THEIR RELATIONS WITH PARTICIPANTS.
6.01. Appointment of Agent. Each Participant hereby appoints and
authorizes Agent to act as its agent hereunder and under the other Operative
Documents with such powers as are expressly delegated to Agent by the terms of
this Agreement and the other Operative Documents, together with such other
powers as are reasonably incidental thereto. Lessor is not an agent for the
Participants or Agent, and neither this Agreement nor any other Operative
Document shall be construed to constitute or evidence a partnership among the
Lessor Parties or otherwise to impose upon Lessor or Agent any fiduciary duty.
6.02. Powers and Immunities. Neither Lessor nor Agent shall have any
duties or responsibilities except those expressly set forth in this Agreement or
in any other Operative Document, be a trustee for any Participant or have any
fiduciary duty to any Participant. Notwithstanding anything to the contrary
contained herein, neither Lessor nor Agent shall be required to take any action
which is contrary to this Agreement or any other Operative Document or any
applicable Governmental Rule. Neither Lessor nor Agent nor any Participant shall
be responsible to any Participant for any recitals, statements, representations
or warranties made by Lessee or any of its Subsidiaries contained in this
Agreement or in any other Operative Document, for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Operative Document or for any failure by Lessee or any of its
Subsidiaries to perform their respective obligations hereunder or thereunder.
Lessor and Agent may employ agents and attorneys-in-fact and shall not be
responsible to any Participant for the negligence or misconduct of any such
agents or attorneys-in-fact selected by it with reasonable care. Neither Lessor
nor Agent nor any of their respective directors, officers, employees, agents or
advisors shall be responsible to any Participant for any action taken or omitted
to be taken by it or them hereunder or under any other Operative Document or in
connection herewith or therewith, except for its or their own gross negligence
or willful misconduct. Except as otherwise provided under this Agreement, Lessor
and Agent shall take such action with respect to the Operative Documents as
shall be directed by the Required Participants.
6.03. Reliance. Lessor or Agent shall be entitled to rely upon any
certificate, notice or other document (including any cable, telegram, facsimile
or telex) believed by it in good faith to be genuine and correct and to have
been signed or sent by or on behalf of the proper Person or Persons, and upon
advice and statements of legal counsel, independent accountants and other
experts selected by Lessor or Agent with reasonable care. As to any other
matters not expressly provided for by this Agreement, neither Lessor nor Agent
shall be required to take any action or
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exercise any discretion, but shall be required to act or to refrain from acting
upon instructions of the Required Participants and shall in all cases be fully
protected by the Participants in acting, or in refraining from acting, hereunder
or under any other Operative Document in accordance with the instructions of the
Required Participants, and such instructions of the Required Participants and
any action taken or failure to act pursuant thereto shall be binding on all of
the Participants.
6.04. Defaults. Neither Lessor nor Agent shall be deemed to have
knowledge or notice of the occurrence of any Default unless Lessor and Agent
have received a written notice from a Participant or Lessee, referring to this
Agreement, describing such Default and stating that such notice is a "Notice of
Default". If Lessor and Agent receive such a notice of the occurrence of a
Default, Agent shall give prompt notice thereof to the Participants. Lessor and
Agent shall take such action with respect to such Default as shall be reasonably
directed by the Required Participants; provided, however, that until Lessor and
Agent shall have received such directions, Lessor or Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable in the best interest of the
Participants.
6.05. Indemnification. Without limiting the obligations of Lessee
hereunder, each Participant agrees to indemnify Lessor and Agent, ratably in
accordance with such Participant's Proportionate Share, for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may at
any time be imposed on, incurred by or asserted against Lessor or Agent in any
way relating to or arising out of this Agreement or any documents contemplated
by or referred to herein or therein or the transactions contemplated hereby or
thereby or the enforcement of any of the terms hereof or thereof; provided,
however, that no Participant shall be liable for any of the foregoing to the
extent they arise from Lessor's or Agent's gross negligence or willful
misconduct. Lessor or Agent shall be fully justified in refusing to take or in
continuing to take any action hereunder unless it shall first be indemnified to
its satisfaction by the Participants against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action. The obligations of each Participant under this Paragraph 6.05 shall
survive the payment and performance of the Lessee Obligations, the termination
of this Agreement and any Participant ceasing to be a party to this Agreement
(with respect to events which occurred prior to the time such Participant ceased
to be a Participant hereunder).
6.06. Non-Reliance. Each Participant represents that it has,
independently and without reliance on Lessor, Agent, or any other Participant,
and based on such documents and information as it has deemed appropriate, made
its own appraisal of the business, prospects, management, financial condition
and affairs of Lessee and the Subsidiaries and its own decision to enter into
this Agreement and agrees that it will, independently and without reliance upon
Lessor, Agent or any other Participant, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
appraisals and decisions in taking or not taking action under this Agreement or
any other Operative Document. Neither Lessor nor Agent nor any of their
respective affiliates nor any of their respective directors, officers,
employees, agents or advisors shall (a) be required to keep any Participant
informed as to the performance or observance by Lessee or any of its
Subsidiaries of the obligations under this Agreement or any
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other document referred to or provided for herein or to make inquiry of, or to
inspect the properties or books of Lessee or any of its Subsidiaries; (b) have
any duty or responsibility to provide any Participant with any credit or other
information concerning Lessee or any of its Subsidiaries which may come into the
possession of Lessor or Agent, except for notices, reports and other documents
and information expressly required to be furnished to the Participants by Lessor
or Agent hereunder; or (c) be responsible to any Participant for (i) any
recital, statement, representation or warranty made by Lessee or any officer,
employee or agent of Lessee in this Agreement or in any of the other Operative
Documents, (ii) the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any Operative Document, (iii) the value or
sufficiency of the Property or the validity or perfection of any of the liens or
security interests intended to be created by the Operative Documents, or (iv)
any failure by Lessee to perform its obligations under this Agreement or any
other Operative Document.
6.07. Resignation or Removal of Agent. Agent may resign at any time by
giving thirty (30) days prior written notice thereof to Lessee and the
Participants, and Agent may be removed at any time with or without cause by the
Required Participants. Upon any such resignation or removal, the Required
Participants shall have the right to appoint a successor Agent, which Agent, if
not a Participant, shall be reasonably acceptable to Lessee; provided, however,
that Lessee shall have no right to approve a successor Agent if an Event of
Default has occurred and is continuing. Upon the acceptance of any appointment
as Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent, and the retiring Agent shall be discharged from the
duties and obligations thereafter arising hereunder. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Section VI and
any other provision of this Agreement or any other Operative Document which by
its terms survives the termination of this Agreement shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as Agent.
6.08. Authorization. Agent is hereby authorized by the Participants to
execute, deliver and perform, each of the Operative Documents to which Agent is
or is intended to be a party and each Participant agrees to be bound by all of
the agreements of Agent contained in the Operative Documents.
6.09. Lessor and Agent in their Individual Capacities. Lessor, Agent
and their respective affiliates may make loans to, accept deposits from and
generally engage in any kind of banking or other business with Lessee and its
Subsidiaries and affiliates as though Lessor were not Lessor hereunder and Agent
were not Agent hereunder. With respect to the Acquisition Advance made by Agent
in its capacity as a Participant, Agent in its capacity as a Participant shall
have the same rights and powers under this Agreement and the other Operative
Documents as any other Participant and may exercise the same as though it were
not Agent, and the terms "Participant" or "Participants" shall include Agent in
its capacity as a Participant.
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SECTION 7. MISCELLANEOUS
7.01. Notices. Except as otherwise provided herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Lessor, Lessee, any Participant or Agent under this Agreement or the other
Operative Documents shall be in writing and faxed, mailed or delivered, if to
Lessor, Lessee or Agent, at its respective facsimile number or address set forth
below or, if to any Participant, at the address or facsimile number specified
beneath the heading "Address for Notices" under the name of such Participant in
Part B of Schedule I (or to such other facsimile number or address for any party
as indicated in any notice given by that party to the other parties); provided,
however, that any notice to Lessor shall be delivered to Agent as provided in
Subparagraph 2.02(c) hereof. All such notices and communications shall be
effective (a) when sent by an overnight courier service of recognized standing,
on the second Business Day following the deposit with such service; (b) when
mailed, first class postage prepaid and addressed as aforesaid through the
United States Postal Service, upon receipt; (c) when delivered by hand, upon
delivery; and (d) when faxed, upon confirmation of receipt; provided, however,
that any of the Acquisition Request, Notice of Rental Period Selection,
Extension Request, Notice of Term Purchase Option Exercise or Notice of Return
Option Exercise delivered to Lessor or Agent shall not be effective until
received by Lessor or Agent.
Lessee: Silicon Valley Group, Inc.
000 Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attn: Chief Financial Officer
Tel. No: (000) 000-0000
Fax. No: (000) 000-0000
Lessor: SELCO Service Corporation
c/o KeyBank National Association
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Tel. No: (000) 000-0000
Fax. No: (000) 000-0000
With a copy to:
KeyCorp Leasing
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Tel. No: (000) 000-0000
Fax. No: (000) 000-0000
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Agent: KEYBANK NATIONAL ASSOCIATION
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Tel. No: (000) 000-0000
Fax. No: (000) 000-0000
With a copy to:
KEYBANK NATIONAL ASSOCIATION
0 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
Attn: Xxxxx XxXxxxx
Tel. No: (000) 000-0000
Fax. No: (000) 000-0000
Each Acquisition Request, Notice of Rental Period Selection, Extension Request,
Notice of Term Purchase Option Exercise and Notice of Return Option Exercise
shall be given by Lessee to Agent's office located at its address referred to
above during its normal business hours; provided, however, that any such notice
received by Agent after 11:00 a.m. on any Business Day shall be deemed received
by Agent on the next Business Day. In any case where this Agreement authorizes
notices, requests, demands or other communications by Lessee to any Lessor Party
to be made by telephone or facsimile, any Lessor Party may conclusively presume
that anyone purporting to be a person designated in any incumbency certificate
or other similar document received by such Lessor Party is such a person.
7.02. Expenses. Lessee shall pay on demand, whether or not the
Acquisition Advance is made hereunder, (a) all reasonable fees and expenses,
including reasonable attorneys' fees and expenses, incurred by Lessor and Agent
in connection with the preparation, negotiation, execution and delivery of, the
consummation of the transactions contemplated by and the exercise of their
duties under, this Agreement and the other Operative Documents, and the
preparation, negotiation, execution and delivery of amendments and waivers
hereunder and thereunder and (b) all reasonable fees and expenses, including
reasonable attorneys' fees and expenses, incurred by the Lessor Parties in the
enforcement or attempted enforcement of any of the Lessee Obligations or in
exercising or preserving any of the Lessor Parties' rights and remedies
(including all such fees and expenses incurred in connection with any "workout"
or restructuring affecting the Operative Documents or the Lessee Obligations or
any bankruptcy or similar proceeding involving Lessee or any of its
Subsidiaries). As used herein, the term "reasonable attorneys' fees and
expenses" shall include, without limitation, allocable costs and expenses of
Agent's and Participants' in-house legal counsel and staff. The obligations of
Lessee under this Paragraph 7.02 shall survive the payment and performance of
the Lessee Obligations and the termination of this Agreement.
7.03. Indemnification. To the fullest extent permitted by law, Lessee
agrees to protect, indemnify, defend and hold harmless, on an after-tax basis,
the Lessor Parties and the other
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Indemnitees from and against any and all liabilities, losses, damages or
expenses of any kind or nature (including Indemnified Taxes) and from any suits,
claims or demands (including in respect of or for reasonable attorney's fees and
other expenses) arising on account of or in connection with any matter or thing
or action or failure to act by Indemnitees, or any of them, arising out of or
relating to the Operative Documents, any transaction contemplated thereby
(including arising under the Acquisition Agreement) or the Property, including
any use by Lessee of the Property or the Acquisition Advance, except to the
extent such liability arises from (a) the willful misconduct or gross negligence
of such Indemnitee, (b) any act or occurrence which first occurs after the Lease
Agreement has terminated and Lessee is no longer in possession of the Property,
(c) the breach by any Lessor Party of its obligations under the Operative
Documents; (d) Hazardous Materials to the extent such indemnification is limited
pursuant to Subparagraph 3.06(c) of the Lease Agreement; or (e) except as
otherwise specifically provided in the Operative Documents, the performance by
any Lessor Party of its obligations thereunder. Upon receiving knowledge of any
suit, claim or demand asserted by a third party that any Lessor Party believes
is covered by this indemnity, such Lessor Party shall give Lessee notice of the
matter and an opportunity to defend it, at Lessee's sole cost and expense, with
legal counsel reasonably satisfactory to such Lessor Party; provided, however,
that Lessee shall not be responsible for the costs and expenses of more than one
such counsel (other than any local counsel and special counsel) in any such
action. Such Lessor Parties may also require Lessee to defend the matter. Any
failure or delay of any Lessor Party to notify Lessee of any such suit, claim or
demand shall not relieve Lessee of its obligations under this Paragraph 7.03 but
shall reduce such obligations to the extent of any increase in those obligations
caused solely by any such failure or delay that is unreasonable. The obligations
of Lessee under this Paragraph 7.03 shall survive the payment and performance of
the Lessee Obligations and the termination of this Agreement.
7.04. Waivers; Amendments. Any term, covenant, agreement or condition
of this Agreement or any other Operative Document may be amended or waived, and
any consent under this Agreement or any other Operative Document may be given,
if such amendment, waiver or consent is in writing and is signed by Lessor,
Lessee and the Required Participants (or Agent on behalf of the Required
Participants with the written approval of the Required Participants); provided,
however that:
(a) Any amendment, waiver or consent which (i) increases the
Total Commitment, (ii) extends the Scheduled Expiration Date, (iii)
reduces the Rental Rate or any fees or other amounts payable for the
account of the Participants hereunder, (iv) postpones any date
scheduled for any payment of Base Rent or any fees or other amounts
payable for the account of the Participants hereunder or thereunder,
(v) amends Paragraph 2.06 or this Paragraph 7.04, (vi) amends the
definition of Required Participants or (vii) releases Lessor's interest
in any substantial part of the Property, must be in writing and signed
or approved in writing by all Participants;
(b) Any amendment, waiver or consent which increases or
decreases the Proportionate Share of any Participant must be in writing
and signed by such Participant; and
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(c) Any amendment, waiver or consent which affects the rights
or obligations of Agent must be in writing and signed by Agent.
No failure or delay by any Lessor Party in exercising any right under this
Agreement or any other Operative Document shall operate as a waiver thereof or
of any other right hereunder or thereunder nor shall any single or partial
exercise of any such right preclude any other further exercise thereof or of any
other right hereunder or thereunder. Unless otherwise specified in such waiver
or consent, a waiver or consent given hereunder shall be effective only in the
specific instance and for the specific purpose for which given.
7.05. Successors and Assigns.
(a) Binding Effect. This Agreement and the other Operative
Documents shall be binding upon and inure to the benefit of Lessee,
Lessor, the Participants, Agent and their respective permitted
successors and assigns. All references in this Agreement to any Person
shall be deemed to include all successors and assigns of such Person.
(b) Participant Assignments.
(i) Any Participant may, at any time, sell and assign
to any other Participant or any Eligible Assignee
(individually, an "Assignee Participant") all or a portion of
its rights and obligations under this Agreement and the other
Operative Documents (such a sale and assignment to be referred
to herein as an "Assignment") pursuant to an assignment
agreement in the form of Exhibit K (an "Assignment
Agreement"), executed by each Assignee Participant and such
assignor Participant (an "Assignor Participant") and delivered
to Agent for its acceptance and recording in the Register;
provided, however, that:
(A) Without the written consent of Lessor,
Agent and, if no Default has occurred and is
continuing, Lessee (which consent of Lessor, Agent
and Lessee shall not be unreasonably withheld), no
Participant may make any Assignment to any Assignee
Participant which is not, immediately prior to such
Assignment, a Participant hereunder or an Affiliate
thereof; or
(B) Without the written consent of Lessor,
Agent and, if no Default has occurred and is
continuing, Lessee (which consent of Lessor, Agent
and Lessee shall not be unreasonably withheld), no
Participant may make any Assignment to any Assignee
Participant if, after giving effect to such
Assignment, the Commitment of such Participant or
such Assignee Participant would be less than Five
Million Dollars ($5,000,000) (except that a
Participant may make an Assignment which reduces its
Commitment to zero without the written consent of
Lessor, Agent or Lessee);
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(C) Without the written consent of Lessor,
Agent and, if no Default has occurred and is
continuing, Lessee (which consent of Lessor, Agent
and Lessee shall not be unreasonably withheld), no
Participant may make any Assignment of its
Outstanding Tranche A Participation Amount which does
not assign and delegate an equal pro rata interest in
(1) such Participant's Tranche A Percentage, and (2)
such Participant's other rights, duties and
obligations relating to the Tranche A Portion under
this Agreement and the other Operative Documents; or
(D) Without the written consent of Lessor,
Agent and, if no Default has occurred and is
continuing, Lessee (which consent of Lessor, Agent
and Lessee shall not be unreasonably withheld), no
Tranche B Participant may make any Assignment of its
Outstanding Tranche B Participation Amount which does
not assign and delegate an equal pro rata interest in
(1) such Participant's Tranche B Percentage, and (2)
such Participant's other rights, duties and
obligations relating to the Tranche B Portion under
this Agreement and the other Operative Documents.
Upon such execution, delivery, acceptance and recording of
each Assignment Agreement, from and after the Assignment
Effective Date determined pursuant to such Assignment
Agreement, (y) each Assignee Participant thereunder shall be a
Participant hereunder with a Tranche A Percentage, Tranche B
Percentage and Proportionate Share as set forth on Attachment
1 to such Assignment Agreement (under the caption "Tranche
Percentages and Proportionate Shares After Assignment") and
shall have the rights, duties and obligations of such a
Participant under this Agreement and the other Operative
Documents, and (z) the Assignor Participant thereunder shall
be a Participant with a Tranche A Percentage, Tranche B
Percentage and Proportionate Share as set forth on Attachment
1 to such Assignment Agreement (under the caption "Tranche
Percentages and Proportionate Shares After Assignment") , or,
if the Proportionate Share of the Assignor Participant has
been reduced to 0%, the Assignor Participant shall cease to be
a Participant and to have any obligation to fund any portion
of the Acquisition Advance; provided, however, that any such
Assignor Participant which ceases to be a Participant shall
continue to be entitled to the benefits of any provision of
this Agreement which by its terms survives the termination of
this Agreement. Each such Assignment Agreement shall be deemed
to amend Schedule I to the extent, and only to the extent,
necessary to reflect the addition of each Assignee
Participant, the deletion of each Assignor Participant which
reduces its Proportionate Share to 0% and the resulting
adjustment of Tranche A Percentages, Tranche B Percentages and
Proportionate Shares arising from the purchase by each
Assignee Participant of all or a portion of the rights and
obligations of an Assignor Participant under this Agreement
and the other Operative Documents. Each Assignee Participant
which was not previously a Participant hereunder and which is
not incorporated under the laws of the United States of
America or a state thereof shall, within three (3) Business
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49
Days of becoming a Participant, deliver to Lessee and Agent
two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224 (or successor applicable form), as
the case may be, certifying in each case that such Participant
is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income
taxes.
(ii) Agent shall maintain at its address referred to
in Paragraph 7.01 a copy of each Assignment Agreement
delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Participants and
the Tranche A Percentage, Tranche B Percentage and
Proportionate Share of each Participant from time to time. The
entries in the Register shall be conclusive in the absence of
manifest error, and Lessee, Agent and the Participants may
treat each Person whose name is recorded in the Register as
the owner of the interests recorded therein for all purposes
of this Agreement. The Register shall be available for
inspection by Lessee or any Participant at any reasonable time
and from time to time upon reasonable prior notice.
(iii) Upon its receipt of an Assignment Agreement
executed by an Assignor Participant and an Assignee
Participant (and, to the extent required by clause (i) of this
Subparagraph 7.05(b), by Lessor, Agent and Lessee), together
with payment to Agent by Assignor Participant of a
registration and processing fee of $3000, Agent shall (A)
promptly accept such Assignment Agreement and (B) on the
Assignment Effective Date determined pursuant thereto record
the information contained therein in the Register and give
notice of such acceptance and recordation to Lessor, the
Participants and Lessee. Agent may, from time to time at its
election, prepare and deliver to Lessor, the Participants and
Lessee a revised Schedule I reflecting the names, addresses
and respective Proportionate Shares of all Participants then
parties hereto.
(iv) Subject to Paragraph 7.13, the Lessor Parties
may disclose the Operative Documents and any financial or
other information relating to Lessee or any Subsidiary to each
other or to any potential Assignee Participant.
(c) Participant Subparticipations. Any Participant may at any
time sell to one or more banks or other financial institutions
("Subparticipants") subparticipation interests in the rights and
interests of such Participant under this Agreement and the other
Operative Documents. In the event of any such sale by a Participant of
subparticipation interests, such Participant's obligations under this
Agreement and the other Operative Documents shall remain unchanged,
such Participant shall remain solely responsible for the performance
thereof and Lessee and the other Lessor Parties shall continue to deal
solely and directly with such Participant in connection with such
Participant's rights and obligations under this Agreement. Any
agreement pursuant to which any such sale is effected may require the
selling Participant to obtain the consent of the Subparticipant in
order for such Participant to agree in writing to any amendment, waiver
or consent of a type specified in clause (i), (ii), (iii) or (iv) of
Subparagraph 7.04(a) but may not
49
50
otherwise require the selling Participant to obtain the consent of such
Subparticipant to any other amendment, waiver or consent hereunder.
Lessee agrees that any Participant which has transferred any
subparticipation interest shall, notwithstanding any such transfer, be
entitled to the full benefits accorded such Participant under Paragraph
2.12, Paragraph 2.13, and Paragraph 2.14, as if such Participant had
not made such transfer.
(d) Lessor Assignments. Lessor may, upon one (1) month's prior
written notice to Lessee and Agent, sell and assign all of its right,
title and interest in the Property and its rights, powers, privileges,
duties and obligations under this Agreement and the other Operative
Documents, provided that:
(i) If such sale and assignment is effected after
either (A) the occurrence of a Change of Law which makes it
unlawful or unreasonably burdensome for Lessor to hold legal
or beneficial title to the Property or to perform its
obligations and duties under this Agreement and the other
Operative Documents or (B) the resignation or removal of the
Agent which was the Agent at the time Lessor became the
Lessor, the purchaser/assignee (the "successor Lessor") shall
be either (1) a Participant or an Eligible Assignee that is a
multi-asset Person having substantial assets beyond its
interest in the Property and the Operative Documents or (2) a
Person approved as provided in clause (ii) below; or
(ii) If such sale and assignment is effected in any
other circumstance, the successor Lessor shall be a Person
that is approved in writing by Agent, Required Participants
and, if no Default has occurred and is continuing, Lessee
(which consents of Agent, Required Participants and Lessee
shall not be unreasonably withheld); and
(iii) The successor Lessor executes such documents,
instruments and agreements as may reasonably be necessary to
evidence its agreement to assume all of the obligations and
duties of the Lessor under this Agreement and the other
Operative Documents.
Upon the consummation of any such sale and assignment, (A) the
successor Lessor shall become the "Lessor" and shall succeed to and
become vested with all the rights, powers, privileges, duties and
obligations of the Lessor under this Agreement and the other Operative
Documents and (B) the retiring Lessor shall be discharged from the
duties and obligations of the Lessor thereafter arising under this
Agreement and the other Operative Documents which are assumed by the
successor Lessor. After any retiring Lessor's discharge as the Lessor,
the provisions of Section VI and any other provision of this Agreement
or any other Operative Document which by its terms survives the
termination of this Agreement shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken by it while it
was acting as the Lessor.
7.06. Setoff. In addition to any rights and remedies of the
Participants provided by law, each Participant shall have the right, with the
prior written consent of Agent, but without prior
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51
notice to or consent of Lessee, any such notice and consent being expressly
waived by Lessee to the extent permitted by applicable law, upon the occurrence
and during the continuance of an Event of Default, to set-off and apply against
the Lessee Obligations any amount owing from such Participant to Lessee. The
aforesaid right of set-off may be exercised by such Participant against Lessee
or against any trustee in bankruptcy, debtor in possession, assignee for the
benefit of creditors, receiver or execution, judgment or attachment creditor of
Lessee or against anyone else claiming through or against Lessee or such trustee
in bankruptcy, debtor in possession, assignee for the benefit of creditors,
receiver, or execution, judgment or attachment creditor, notwithstanding the
fact that such right of set-off may not have been exercised by such Participant
at any prior time. Each Participant agrees promptly to notify Lessee after any
such set-off and application made by such Participant, provided that the failure
to give such notice shall not affect the validity of such set-off and
application.
7.07. No Third Party Rights. Nothing expressed in or to be implied from
this Agreement is intended to give, or shall be construed to give, any Person,
other than the parties hereto and their permitted successors and assigns
hereunder, any benefit or legal or equitable right, remedy or claim under or by
virtue of this Agreement or under or by virtue of any provision herein.
7.08. Partial Invalidity. If at any time any provision of this
Agreement or any other Operative Document is or becomes illegal, invalid or
unenforceable in any respect under the law or any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions of this
Agreement or the other Operative Documents nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
7.09. JURY TRIAL. EACH OF LESSEE AND THE LESSOR PARTIES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY AS TO ANY ISSUE RELATING TO THE OPERATIVE DOCUMENTS IN ANY ACTION,
PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY OPERATIVE
DOCUMENT.
7.10. Counterparts. This Agreement may be executed in any number of
identical counterparts, any set of which signed by all the parties hereto shall
be deemed to constitute a complete, executed original for all purposes.
7.11. No Joint Venture, Etc. Neither this Agreement nor any other
Operative Document nor any transaction contemplated hereby or thereby shall be
construed to (a) constitute a partnership or joint venture between Lessee and
any Lessor Party or (b) impose upon any Lessor Party any agency relationship
with or fiduciary duty to Lessee.
7.12. Usury Savings Clause. Nothing contained in this Agreement or any
other Operative Documents shall be deemed to require the payment of interest or
other charges by Lessee in excess of the amount the applicable Lessor Parties
may lawfully charge under applicable usury laws. In the event any Lessor Party
shall collect monies which are deemed to constitute interest which would
increase the effective interest rate to a rate in excess of that
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52
permitted to be charged by applicable law, all such sums deemed to constitute
excess interest shall, upon such determination, at the option of Lessor, be
returned to Lessee or credited against other Lessee Obligations.
7.13. Confidentiality. No Lessor Party shall disclose to any Person any
information with respect to Lessee or any of its Subsidiaries which is furnished
pursuant to this Agreement or under the other Operative Documents, except that
any Lessor Party may disclose any such information (a) to its own directors,
officers, employees, auditors, counsel and other advisors and to its Affiliates;
(b) to any other Lessor Party; (c) which is otherwise available to the public;
(d) if required or appropriate in any report, statement or testimony submitted
to any Governmental Authority having or claiming to have jurisdiction over such
Lessor Party; (e) if required in response to any summons or subpoena; (f) in
connection with any enforcement by any Lessor Party of its rights under this
Agreement or the other Operative Documents or any litigation among the parties
relating to the Operative Documents or the transactions contemplated thereby;
(g) to comply with any Requirement of Law applicable to such Lessor Party; (h)
to any Assignee Participant or Subparticipant or any prospective Assignee
Participant or Subparticipant, provided that such Assignee Participant or
Subparticipant or prospective Assignee Participant or Subparticipant agrees to
be bound by this Paragraph 7.13; or (i) otherwise with the prior consent of
Lessee; provided, however, that (i) any Lessor Party served with any summons or
subpoena demanding the disclosure of any such information shall use reasonable
efforts to notify Lessee promptly of such summons or subpoena if not prohibited
by any Requirement of Law and, if requested by Lessee and not disadvantageous to
such Lessor Party, to cooperate with Lessee in obtaining a protective order
restricting such disclosure, and (ii) any disclosure made in violation of this
Agreement shall not affect the obligations of Lessee and its Subsidiaries under
this Agreement and the other Operative Documents.
7.14. Governing Law. Unless otherwise provided in any Operative
Document, this Agreement and each of the other Operative Documents shall be
governed by and construed in accordance with the laws of the State of California
without reference to conflicts of law rules.
[The first signature page follows.]
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IN WITNESS WHEREOF, Lessee, Lessor, the Participants and Agent have
caused this Agreement to be executed as of the day and year first above written.
LESSEE: SILICON VALLEY GROUP, INC.
By:
--------------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
LESSEE: SILICON VALLEY GROUP, INC.
By:
--------------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
AGENT: KEYBANK NATIONAL ASSOCIATION
By:
--------------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
By:
--------------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
PARTICIPANTS: KEYBANK NATIONAL ASSOCIATION
By:
--------------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
By:
--------------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
SELCO SERVICE CORPORATION
By:
--------------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
53
54
SCHEDULE I
PARTICIPANTS
PART A
TRANCHE PERCENTAGES AND PROPORTIONATE SHARES
TRANCHE A TRANCHE B PROPORTIONATE
PARTICIPANT PERCENTAGE PERCENTAGE SHARE
---------- ----------- ---------- -------------
KeyBank National Association 81.49300000% 0% 81.49300000%
SELCO Service Corporation 0% 18.50700000% 18.50700000%
TOTAL 81.49300000% 18.50700000% 100.00000000%
I-1
55
PART B - ADDRESSES, ETC.
KEYBANK NATIONAL ASSOCIATION
Applicable Participating Office:
KeyBank National Association
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Tel. No: (000) 000-0000
Fax No: (000) 000-0000
Address for Notices:
KeyBank National Association
000 X. Xxxx Xxxxxx Xxxxxxxxx
Xxxxx, XX 00000
Attn: Xxxxx Xxxxxxx or Xxxxxxxx Xxxxxxx
Tel. No: (000) 000-0000
Fax No: (000) 000-0000
With a copy to:
KeyBank National Association
0 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx XxXxxxx
Tel. No: (000) 000-0000
Fax No: (000) 000-0000
Wiring Instructions:
KeyBank National Association
Seattle, WA
NW Region Specialty Services
Account #: 00000000
Reference: Silicon Valley Group,
Inc. Synthetic Lease
I-2
56
SELCO SERVICE CORPORATION
Applicable Participating Office:
SELCO Service Corporation
c/o KeyBank National Association
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Tel. No: (000) 000-0000
Fax No: (000) 000-0000
Address for Notices:
KeyBank National Association
000 X. Xxxx Xxxxxx Xxxxxxxxx
Xxxxx, XX 00000
Attn: Xxxxx Xxxxxxx or Xxxxxxxx Xxxxxxx
Tel. No: (000) 000-0000
Fax No: (000) 000-0000
With a copy to:
KeyBank National Association
0 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx XxXxxxx
Tel. No: (000) 000-0000
Fax No: (000) 000-0000
and
KeyCorp Leasing
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Tel. No: (000) 000-0000
Fax. No: (000) 000-0000
Wiring Instructions:
KeyBank National Association
Seattle, WA
NW Region Specialty Services
Account #: 00000000
I-3
57
Reference: Silicon Valley Group, Inc. Synthetic Lease
I-4
58
II-2
SCHEDULE II
PRICING GRID
(For LIBOR Rental Rate)
SENIOR DEBT/ PRICING APPLICABLE MARGIN
EBITDA PERIOD FOR
EBITDA RATIO LEVEL LIBOR RENTAL RATE
------ ----------- ------- -----------------
>/=$150,000,000 1.00,
/=1.50,
<2.00 4 1.335%
>/=2.00 5 1.460%
EXPLANATION
1. The Applicable Margin with respect to the LIBOR Rental Rate will be set
for each Pricing Period and will vary depending upon whether such
period is a Level 1 Period, a Level 2 Period, a Level 3 Period, a Level
4 Period or a Level 5 Period.
2. The first Pricing Period, which commences on the date of this Agreement
and ends on March 31, 2000, will be a Level 5 Period.
3. The second pricing period, which commences on April 1, 2000 and ends on
June 30, 2000, will be a Xxxxx 0 Xxxxxx, x Xxxxx 0 Xxxxxx, x Xxxxx 0
Period, a Level 4 Period or a Level 5 Period depending upon Lessee's
EBITDA and Senior Debt/EBITDA Ratio for the consecutive four-quarter
period ending on December 31, 1999. (Lessee's EBITDA is a factor only
in determining whether a Pricing Period will be a Level 1 Period or a
Level 2 Period when Lessee's Senior Debt/EBITDA is less than 1.00.)
3. Each Pricing Period thereafter will be a Xxxxx 0 Xxxxxx, x Xxxxx 0
Xxxxxx, x Xxxxx 0 Period, a Level 4 Period or a Level 5 Period
depending upon Lessee's EBITDA and Senior Debt/EBITDA Ratio for the
consecutive four-quarter period ending on the last day of the fiscal
quarter ending one quarter prior to the first day of such Pricing
Period.
4. Examples:
II-1
59
(a) Lessee's EBITDA and Senior Debt/EBITDA Ratio for the
consecutive four-quarter period ending on March 31, 2000 are
$160,000,000 and 0.90, respectively. The Pricing Period of July 1, 2000
through September 30, 2000 will be a Level 1 Period.
(b) Lessee's EBITDA and Senior Debt/EBITDA Ratio for the
consecutive four-quarter period ending on June 30, 2000 are
$149,000,000 and 0.98, respectively. The Pricing Period of October 1,
2000 through December 31, 2000 will be a Level 2 Period.
(c) Lessee's EBITDA and Senior Debt/EBITDA Ratio for the
consecutive four-quarter period ending on September 30, 2000 are
$160,000,000 and 1.35, respectively. The Pricing Period of January 1,
2001 through March 31, 2001 will be a Level 3 Period.
II-2
60
SCHEDULE 1.01
DEFINITIONS
"ABN Synthetic Lease Facility" shall mean that certain synthetic lease
facility entered into on or about December 15, 1998 among Lessee, Lease Plan
North America, Inc., the financial institutions from time to time party thereto,
and ABN AMRO Bank N.V., as agent for such financial institutions, with respect
to the lease by Lessee of certain land and improvements located in San Jose,
California.
"Accounts" shall mean, with respect to any Person, all accounts
receivable owned by such Person including all "accounts" within the meaning of
Section 9106 of the UCC, and
"Account" shall mean any one of the Accounts.
"Acquisition Advance" shall have the meaning given to that term in
Subparagraph 2.01(b) of the Participation Agreement.
"Acquisition Agreement" shall mean that certain Securities Purchase
Agreement, dated April 30, 1999, by and among Lessee and Seller.
"Acquisition Charge Cap" shall mean, as of any date of calculation, the
lesser of (a) $50,000,000 and (b) an amount equal to five percent (5%) of
Lessee's Tangible Net Worth on the last day of the immediately preceding fiscal
year.
"Acquisition Price" shall mean the total purchase price payable by
Lessor for the Property pursuant to the Acquisition Agreement.
"Acquisition Request" shall have the meaning given to that term in
Paragraph 2.03 of the Participation Agreement.
"Adjusted Net Income" shall mean, with respect to Lessee for any
period, the sum, determined on a consolidated basis in accordance with GAAP
where applicable, of:
(a) The net income or net loss of Lessee and its Subsidiaries
for such period after provision for income taxes;
plus
(b) To the extent deducted in calculating such net income or
net loss for such period under clause (a) above, all non-recurring,
non-cash charges taken by Lessee and its Subsidiaries during such
period in connection with acquisitions permitted by Subparagraph
5.02(d) of the Participation Agreement (including charges for the
write-off of in-process research and development costs relating to such
acquisitions); provided, however, that the sum of all such charges so
added to net income or net loss in calculating
1.01(a)-1
61
the Adjusted Net Income of Lessee during the period from the date of
the ABN Synthetic Lease Facility through the Scheduled Expiration Date
shall not at any time exceed the Acquisition Charge Cap at such time;
plus
(c) To the extent deducted in calculating such net income or
net loss for such period under clause (a) above, all Xxxxxxx-Xxxxxxx
Charges taken by Lessee and its Subsidiaries during such period;
provided, however, that the sum of all such charges so added to net
income or net loss in calculating the Adjusted Net Income of Lessee
during the period from the date of the Credit Agreement through the
Scheduled Expiration Date shall not at any time exceed fifteen million
Dollars ($15,000,000).
"Affiliate" shall mean, with respect to any Person, (a) each Person
that, directly or indirectly, owns or controls, whether beneficially or as a
trustee, guardian or other fiduciary, five percent (5%) or more of any class of
Equity Securities of such Person, (b) each Person that controls, is controlled
by or is under common control with such Person or any Affiliate of such Person
or (c) each of such Person's officers, directors, joint venturers and partners;
provided, however, that in no case shall Lessor, Agent or any Participant be
deemed to be an Affiliate of Lessee or any of its Subsidiaries for purposes of
the Operative Documents. For the purpose of this definition, "control" of a
Person shall mean the possession, directly or indirectly, of the power to direct
or cause the direction of its management or policies, whether through the
ownership of voting securities, by contract or otherwise.
"Agent" shall mean KeyBank, acting in its capacity as Agent for the
Participants under the Operative Documents.
"Agent's Structuring Fee Letter" shall mean the letter agreement dated
as of April 22, 1999 between Lessee and Agent regarding certain fees payable by
Lessee to Agent.
"Agent's Structuring Fee" shall have the meaning given to that term in
Subparagraph 2.04(a) of the Participation Agreement.
"Alternate Rental Rate" shall mean, for any Rental Period (or portion
thereof), the per annum rate equal to the Base Rate in effect from time to time
during such period plus the Applicable Margin, such rate to change from time
during such period as the Base Rate or Applicable Margin shall change.
"Applicable Margin" shall mean:
(a) With respect to the Outstanding Tranche A Participation
Amounts, (i) the per annum rate determined pursuant to the Pricing Grid
with respect to the LIBOR Rental Rate or (ii) zero percent (0%) per
annum with respect to the Alternate Rental Rate; and
(b) With respect to the Outstanding Tranche B Participation
Amounts, (i) the per annum rate determined pursuant to the Pricing Grid
with respect to the LIBOR Rental
1.01(a)-2
62
Rate plus one quarter of one percent (0.25%) or (ii) one quarter of one
percent (0.25%) per annum with respect to the Alternate Rental Rate;
provided, however, that each Applicable Margin set forth in
subparagraphs (a) and (b) of this definition shall be increased by two
percent (2.0%) per annum at the option of Lessor, Agent or Required
Lenders on the date an Event of Default occurs and shall continue at
such increased rate unless and until such Event of Default is waived in
accordance with the Operative Documents.
"Applicable Participating Office" shall mean, with respect to any
Participant, (a) initially, its office designated as such in Part B of Schedule
I (or, in the case of any Participant which becomes a Participant by an
assignment pursuant to Subparagraph 7.05(b) of the Participation Agreement, its
office designated as such in the applicable Assignment Agreement) and (b)
subsequently, such other office or offices as such Participant may designate to
Agent as the office at which such Participant's interest in the Lease Agreement
will thereafter be maintained and for the account of which all payments of Rent
and other amounts payable to such Participant under the Operative Documents will
thereafter be made.
"Appraisal" shall mean an appraisal of an interest in the Property or a
portion thereof in a form satisfactory to Lessor, Agent and the Required
Participants, prepared by an independent MAI appraiser that (a) complies with
the Financial Institutions Reform, Recovery and Enforcement Act of 1989 and all
other applicable Governmental Rules and (b) is approved by Lessor, Agent and the
Required Participants (at the time such appraiser is selected).
"Appurtenant Rights" shall mean all easements and rights-of-way, strips
and gores of land, streets, ways, alleys, passages, sewer rights, water, water
courses, water rights and powers, air rights and development rights, liberties,
tenements, hereditaments and appurtenances of any nature whatsoever, in any way
belonging, relating or pertaining to any Land or the Lessor Improvements thereto
and the reversions, remainders, and all the estates, rights, titles, interests,
property, possession, claim and demand whatsoever, both in law and in equity,
of, in and to such Land and Lessor Improvements and every part and parcel
thereof, with the appurtenances thereto.
"Assignee Participant" shall have the meaning given to that term in
Subparagraph 7.05(b) of the Participation Agreement.
"Assignee Purchaser" shall have the meaning given to that term in
Subparagraph 5.03(b)of the Purchase Agreement.
"Assignment" shall have the meaning given to that term in Subparagraph
7.05(b) of the Participation Agreement.
"Assignment Agreement" shall have the meaning given to that term in
Subparagraph 7.05(b) of the Participation Agreement.
1.01(a)-3
63
"Assignment Effective Date" shall have, with respect to each Assignment
Agreement, the meaning set forth therein.
"Assignment of Lease" shall have the meaning given to that term in
Subparagraph 2.11(b) of the Participation Agreement.
"Assignment of Remediation Agreements" shall have the meaning given to
that term in Subparagraph 2.11(a) of the Participation Agreement.
"Assignor Participant" shall have the meaning given to that term in
Subparagraph 7.05(b) of the Participation Agreement.
"Base Rate" shall mean, on any day, the greater of (a) the Prime Rate
in effect on such date and (b) the Federal Funds Rate for such day plus one-half
percent (0.50%).
"Base Rent" shall have the meaning given to that term in Subparagraph
2.03(a) of the Lease Agreement.
"Business Day" shall mean any day on which (a) commercial banks are not
authorized or required to close in San Francisco, California, Boston,
Massachusetts or New York, New York and (b) if such Business Day is related to a
LIBOR Rental Rate, dealings in Dollar deposits are carried out in the London
interbank market.
"Capital Adequacy Requirement" shall have the meaning given to that
term in Subparagraph 2.12(d) of the Participation Agreement.
"Capital Asset" shall mean, with respect to any Person, any tangible
fixed or capital asset owned or, in the case of a Capital Lease or "synthetic"
lease, leased by such Person, and any expense incurred by such Person that is
required by GAAP to be reported as a non-current asset on such Person's balance
sheet.
"Capital Expenditures" shall mean, with respect to any Person and any
period, all amounts expended by such Person during such period for the
acquisition of Capital Assets (including all amounts paid or accrued on Capital
Leases and "synthetic" leases and other Indebtedness incurred or assumed to
acquire Capital Assets).
"Capital Leases" shall mean any and all lease obligations that, in
accordance with GAAP, are required to be capitalized on the books of a lessee.
"Cash Collateral" shall mean United States Treasury Securities and
Deposit Accounts (including without limitation eurodollar deposit accounts) held
or maintained by Agent and Participants to the extent such securities and
accounts are held and maintained in accordance with the Cash Collateral
Agreement and Lessor has a first priority perfected security interest therein
securing the Lessee Obligations.
"Cash Collateral Agreement" shall have the meaning given to that term
in Subparagraph 2.11(a) of the Participation Agreement.
1.01(a)-4
64
"Casualty" shall mean any damage to, destruction of or decrease in the
value of all or any portion of any of the Property as a result of fire, flood,
earthquake or other natural cause; the actions or inactions of any Person or
Persons (whether willful or unintentional and whether or not constituting
negligence); or any other cause.
"Casualty and Condemnation Proceeds" shall mean all awards, damages,
compensation, reimbursement and other payments made or to be made to Lessee,
Lessor or Agent from any insurer, Governmental Authority or other Person (other
than Lessee or any Lessor Party) on account of any Casualty or Condemnation.
"Change of Control" shall mean the occurrence of any of the following
events: (a) any person or group of persons (within the meaning of Section 13 or
14 of the Securities Exchange Act of 1934, as amended) shall (i) acquire
beneficial ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under the Securities Exchange Act of 1934, as
amended) of thirty percent (30%) or more of the outstanding Equity Securities of
Lessee entitled to vote for members of the board of directors, or (ii) acquire
all or substantially all of the assets of Lessee and its Subsidiaries taken as a
whole, or (b) during any period of twelve (12) consecutive calendar months,
individuals who are directors of Lessee on the first day of such period
("Initial Directors") and any directors of Lessee who are specifically approved
by two-thirds of the Initial Directors and previously-approved Directors
("Approved Directors") shall cease to constitute a majority of the Board of
Directors of Lessee before the end of such period.
"Change of Law" shall have the meaning given to that term in
Subparagraph 2.12(b) of the Participation Agreement.
"Closing Date" shall have the meaning given to that term in
Subparagraph 2.01(a) of the Participation Agreement.
"Closing Date Appraisal" shall mean, with respect to the Property on or
as of a recent date prior to the Closing Date, an Appraisal that assesses at
such time the Fair Market Value of Lessor's fee interest in the Property on the
Closing Date.
"Collateral" shall mean the Property Collateral, the Cash Collateral
and all other property in which any Lessor Party has a Lien to secure any of the
Lessee Obligations.
"Commencement Date" shall have the meaning given to that term in
Subparagraph 2.02(a) of the Lease Agreement.
"Commitment" shall mean, with respect to any Participant at any time,
the sum of such Participant's Proportionate Share of the Total Commitment at
such time.
"Commitment Period" shall have mean the period beginning on the date of
this Agreement and ending on the earlier of the Closing Date and the Commitment
Termination Date.
1.01(a)-5
65
"Commitment Termination Date" shall have the meaning given to that term
in Subparagraph 2.03(b) of the Participation Agreement.
"Compliance Certificate" shall have the meaning given to that term in
Subparagraph 5.01(a) of the Participation Agreement.
"Condemnation" shall mean any condemnation, requisition, confiscation,
seizure or other taking or sale of the use, access, occupancy or other right in
or to all or any portion of any of the Property (whether wholly or partially,
temporarily or permanently), by or on account of any actual or threatened
eminent domain proceeding or other taking of action by any Governmental
Authority or other Person having the power of eminent domain, including an
action by any such Governmental Authority or Person to change the grade of, or
widen the streets adjacent to, such Property or alter the pedestrian or
vehicular traffic flow to such Property so as to result in change in access to
such Property, or by or on account of an eviction by paramount title or any
transfer made in lieu of any such proceeding or action. A "Condemnation" shall
be deemed to have occurred on the earliest of the dates that use, access,
occupancy or other right is taken.
"Contingent Obligation" shall mean, with respect to any Person, (a) any
Guaranty Obligation of that Person; and (b) any direct or indirect obligation or
liability, contingent or otherwise, of that Person (i) in respect of any Surety
Instrument issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments, (ii) to purchase any
materials, supplies or other property from, or to obtain the services of,
another Person if the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other property, or for
such services, shall be made regardless of whether delivery of such materials,
supplies or other property is ever made or tendered, or such services are ever
performed or tendered, or (iii) in respect to any Rate Contract that is not
entered into in connection with a bona fide hedging operation that provides
offsetting benefits to such Person. The amount of any Contingent Obligation
shall (subject, in the case of Guaranty Obligations, to the last sentence of the
definition of "Guaranty Obligation") be deemed equal to the maximum reasonably
anticipated liability in respect thereof, and shall, with respect to item
(b)(iii) of this definition be marked to market on a current basis.
"Contractual Obligation" of any Person shall mean, any indenture, note,
lease, loan agreement, security, deed of trust, mortgage, security agreement,
guaranty, instrument; contract, agreement or other form of contractual
obligation or undertaking to which such Person is a party or by which such
Person or any of its property is bound.
"Credit Agreement" shall mean the Credit Agreement dated as of June 30,
1998 among Lessee, the lending institutions parties thereto and ABN AMRO Bank
N.V., as agent for such lending institutions.
"Credit Documents" shall mean the Credit Agreement and all other
documents, instruments and agreements executed by Lessee and its Subsidiaries in
connection therewith.
"Credit Event" shall mean the making of the Acquisition Advance or the
exercise of the Return Option under the Purchase Agreement.
1.01(a)-6
66
"Default" shall mean any Event of Default under the Lease Agreement or
any event or circumstance not yet constituting an Event of Default under the
Lease Agreement which, with the giving of any notice or the lapse of any period
of time or both, would become an Event of Default under the Lease Agreement.
"Defaulting Participant" shall mean a Participant which has failed to
fund its portion of the Acquisition Advance which it is required to fund under
the Participation Agreement and has continued in such failure for one (1)
Business Day after written notice from Agent.
"Deficiency" shall have the meaning given to that term in Subparagraph
3.03(a) of the Purchase Agreement.
"Deposit Accounts" shall have the meaning given to that term in
Subparagraph 2.01(a) of the Cash Collateral Agreement.
"Depositary Bank" shall have the meaning given to that term in
Paragraph 2.02 of the Cash Collateral Agreement.
"Designated Purchaser" shall have the meaning given to that term in
Subparagraph 3.02(b) of the Purchase Agreement.
"Disclosure Letter" shall mean the letter dated June 30, 1999 delivered
by Lessee to Agent pursuant to Schedule 3.01 of the Participation Agreement,
which letter is identified as the "Disclosure Letter".
"Dollars" and "$" shall mean the lawful currency of the United States
of America and, in relation to any payment under the Operative Documents, same
day or immediately available funds.
"EBITDA" shall mean, with respect to Lessee for any period, the sum,
determined on a consolidated basis in accordance with GAAP, of the following:
(a) The net income or net loss of Lessee for such period
before provision for income taxes;
plus
(b) To the extent deducted in calculating such net income or
net loss for such period under clause (a) above, the sum of (i) all
Interest Expenses of Lessee and its Subsidiaries accruing during such
period and (ii) all depreciation and amortization expenses of Lessee
and its Subsidiaries accruing during such period;
minus
(c) To the extent added in calculating such net income or net
loss for such period under clause (a) above, all interest income of
Lessee and its Subsidiaries accruing during such period;
1.01(a)-7
67
plus
(d) To the extent deducted in calculating such net income or
net loss for such period under clause (a) above, all non-recurring,
non-cash charges taken by Lessee and its Subsidiaries during such
period in connection with acquisitions permitted by Subparagraph
5.02(d) of the Participation Agreement (including charges for the
write-off of in-process research and development costs relating to such
acquisitions); provided, however, that the sum of all such charges so
added to net income or net loss in calculating the EBITDA of Lessee
during the period from the date of the Credit Agreement through the
Scheduled Expiration Date shall not at any time exceed the Acquisition
Charge Cap at such time;
plus
(e) For the purposes of calculating the Fixed Charge Coverage
Ratio of Lessee for any period only, to the extent deducted in
calculating such net income or net loss for such period under clause
(a) above, all Xxxxxxx-Xxxxxxx Charges taken by Lessee and its
Subsidiaries during such period; provided, however, that the sum of all
such charges so added to net income or net loss in calculating the
EBITDA of Lessee during the period from the date of the Credit
Agreement through the Scheduled Expiration Date shall not at any time
exceed fifteen million Dollars ($15,000,000).
"Eligible Assignee" shall mean (a) a commercial bank organized under
the laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $250,000,000; (b) a commercial bank organized
under the laws of any other country or a political subdivision thereof and
having a combined capital and surplus of at least $250,000,000, provided that
such bank is acting through a branch or agency located in the United States; or
(c) a Person that is (i) a Subsidiary of a Participant, (ii) a Subsidiary of a
Person of which a Participant is a Subsidiary, or (iii) a Person of which a
Participant is a Subsidiary.
"Employee Benefit Plan" shall mean any employee benefit plan within the
meaning of section 3(3) of ERISA maintained of contributed to by Lessee or any
ERISA Affiliate, other than a Multiemployer Plan.
"Environmental Laws" shall mean the Clean Air Act, 42 U.S.C. Section
7401 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et
seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901
et seq.; the Comprehensive Environment Response, Compensation and Liability Act
of 1980 (including the Superfund Amendments and Reauthorization Act of 1986,
"CERCLA"), 42 U.S.C. Section 9601 et seq.; the Toxic Substances Control Act, 15
U.S.C. Section 2601 et seq.; the Occupational Safety and Health Act, 29 U.S.C.
Section 651; the Emergency Planning and Community Right-to-Know Act of 1986, 42
U.S.C. Section 11001 et seq.; the Mine Safety and Health Act of 1977, 30 U.S.C.
Section 801 et seq.; the Safe Drinking Water Act, 42 U.S.C. Section 300f et
seq.; and all other Governmental Rules relating to the protection of human
health and the environment, including all Governmental Rules pertaining to the
reporting, licensing, permitting, transportation, storage, disposal,
investigation, or remediation of emissions, discharges, releases, or threatened
releases of
1.01(a)-8
68
Hazardous Materials into the air, surface water, groundwater, or land, or
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transportation, or handling of Hazardous Materials.
"Environmental Reports" shall have the meaning given to that term in
Schedule 3.01 of the Participation Agreement.
"Equity Securities" of any Person shall mean (a) all common stock,
preferred stock, participations, shares, partnership interests or other equity
interests in and of such Person (regardless of how designated and whether or not
voting or non-voting) and (b) all warrants, options and other rights to acquire
any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended, modified, codified or reenacted from time to time and in effect at
any given time.
"ERISA Affiliate" shall mean any Person which is treated as a single
employer with Lessee under Section 414 of the IRC.
"Escrow Agreement" shall mean that certain Escrow Agreement, dated as
of June 30, 1999, by and among Lessee, Seller, the Remediator and Norwest Bank
of Colorado, N.A. pursuant to which the funds to be paid to the Remediator in
connection with the Fixed Price Remediation Agreement shall be held in an escrow
account and disbursed to the Remediator in accordance with the Fixed Price
Remediation Agreement.
"Event of Default" shall have the meaning given to that term in
Paragraph 5.01 of the Lease Agreement.
"Expiration Date" shall mean the earlier of (a) the Scheduled
Expiration Date under the Lease Agreement, as such date may be extended pursuant
to this Agreement, and (b) the Termination Date, if the Lease Agreement is
terminated pursuant to Subparagraph 5.03(a) of the Lease Agreement or all Lessee
Obligations are declared due pursuant to Subparagraph 5.04(a) of the Lease
Agreement prior to the Scheduled Expiration Date in accordance with the terms of
the Lease Agreement.
"Expiration Date Appraisal" shall mean, with respect to the Property at
any time, an Appraisal that assesses at such time the Fair Market Value of
Lessor's fee interest in the Property on the Scheduled Expiration Date.
"Expiration Date Purchase Option" shall have the meaning given to that
term in Subparagraph 3.01(b) of the Purchase Agreement.
"Fair Market Value" shall mean, with respect to any of the Property or
any portion thereof, the maximum reasonable amount (not less than zero) that
would be paid in cash in an arm's-length transaction between an informed and
willing purchaser and an informed and willing seller, neither of whom is under
any compulsion to purchase or sell, for the ownership of the Property or such
portion.
1.01(a)-9
69
"FASB 13" shall mean Financial Accounting Standards Board Statement No.
13.
"Federal Funds Rate" shall mean, for any day, the rate per annum set
forth in the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Board (including any
such successor publication, "H.15 (519)") for such day opposite the caption
"Federal Funds (Effective)". If on any relevant day, such rate is not yet
published in H.15 (519), the rate for such day shall be the rate set forth in
the daily statistical release designated as the Composite 3:30 p.m. Quotations
for U.S. Government Securities, or any successor publication, published by the
Federal Reserve Bank of New York (including any such successor publication, the
"Composite 3:30 p.m. Quotations") for such day under the caption "Federal Funds
Effective Rate". If on any relevant day, such rate is not yet published in
either H.15 (519) or the Composite 3:30 p.m. Quotations, the rate for such day
shall be the arithmetic means, as determined by Agent, of the rates quoted to
Agent for such day by three (3) Federal funds brokers of recognized standing
selected by Agent.
"Federal Reserve Board" shall mean the Board of Governors of the
Federal Reserve System.
"Financial Statements" shall mean, with respect to any accounting
period for any Person, statements of income, shareholders' equity and cash flows
of such Person for such period, and a balance sheet of such Person as of the end
of such period, setting forth in each case in comparative form figures for the
corresponding period in the preceding fiscal year if such period is less than a
full fiscal year or, if such period is a full fiscal year, corresponding figures
from the preceding annual audit, all prepared in reasonable detail and in
accordance with GAAP.
"Fixed Charge Coverage Ratio" shall mean, with respect to Lessee for
any period, the ratio, determined on a consolidated basis in accordance with
GAAP, of:
(a) The sum of (i) Lessee's EBITDA for such period plus (ii)
to the extent deducted in calculating such EBITDA for such period, all
operating lease and "synthetic" lease payments of Lessee and its
Subsidiaries for such period;
to
(b) The sum of (i) to the extent deducted in calculating such
EBITDA for such period, all Interest Expenses of Lessee and its
Subsidiaries for such period, plus (ii) to the extent deducted in
calculating such EBITDA for such period, all operating lease and
"synthetic" lease payments of Lessee and its Subsidiaries for such
period, plus (iii) the aggregate principal amount of all long-term
Indebtedness of Lessee and its Subsidiaries that matures during the
consecutive four-quarter period immediately following such period, plus
(iv) twenty percent (20%) of the Outstanding Revolver Credit on the
last day of such period;
Provided, however, that that, in calculating Lessee's Fixed Charge Coverage
Ratio for the consecutive two-quarter period ending on October 1, 1999 and the
consecutive three-quarter
1.01(a)-10
70
period ending on December 31, 1999, the amounts to be used in clauses (a)(i),
(a)(ii), (b)(i) and (b)(ii) shall be the actual respective amounts for such
periods annualized.
"Fixed Price Remediation Agreement" shall mean that certain Guaranteed
Fixed Price Remediation Agreement, dated as of June 30, 1999, by and among
Lessee, Seller and the Remediator pursuant to which, inter alia, the Remediator
has agreed to remediate the Property.
"GAAP" shall mean generally accepted accounting principles and
practices as in effect in the United States of America from time to time,
consistently applied.
"Governmental Authority" shall mean any domestic or foreign national,
state or local government, any political subdivision thereof, any department,
agency, authority or bureau of any of the foregoing, or any other entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, including, without limitation, the
Federal Deposit Insurance Corporation, the Federal Reserve Board, the
Comptroller of the Currency, any central bank or any comparable authority.
"Governmental Charges" shall mean, with respect to any Person, all
levies, assessments, fees, claims or other charges imposed by any Governmental
Authority upon such Person or any of its property or otherwise payable by such
Person.
"Governmental Rule" shall mean any law, rule, regulation, ordinance,
order, code, interpretation, judgment, decree, directive, guidelines, policy or
similar form of decision of any Governmental Authority.
"Guaranty Obligation" shall mean, with respect to any Person, any
direct or indirect liability of that Person with respect to any indebtedness,
lease, dividend, letter of credit or other obligation (the "primary
obligations") of another Person (the "primary obligor"), including any
obligation of that Person, whether or not contingent, (a) to purchase,
repurchase or otherwise acquire such primary obligations or any property
constituting direct or indirect security therefor, or (b) to advance or provide
funds (i) for the payment or discharge of any such primary obligation, or (ii)
to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency or any balance sheet item, level
of income or financial condition of the primary obligor, or (c) to purchase
property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation, or (d) otherwise to assure or hold harmless
the holder of any such primary obligation against loss in respect thereof. The
amount of any Guaranty Obligation shall be deemed equal to the stated or
determinable amount of the primary obligation in respect of which such Guaranty
Obligation is made or, if not stated or if indeterminable, the maximum
reasonably anticipated liability in respect thereof.
"Hazardous Materials" shall mean all pollutants, contaminants and other
materials, substances and wastes which are hazardous, toxic, caustic, harmful or
dangerous to human health or the environment, including petroleum and petroleum
products and byproducts, radioactive materials, asbestos, polychlorinated
biphenyls and all materials, substances and wastes which are
1.01(a)-11
71
classified or regulated as "hazardous," "toxic" or similar descriptions under
any Environmental Law.
"Improvements" shall mean all buildings, structures, facilities,
fixtures and other improvements of every kind and description now or hereafter
located on any of the Land, including (a) all parking areas, roads, driveways,
walks, fences, walls, drainage facilities and other site improvements; and (b)
all water, sanitary and storm sewer, drainage, electricity, steam, gas,
telephone and other utility equipment and facilities, all plumbing, lighting,
heating, ventilating, air-conditioning, refrigerating, incinerating, compacting,
fire protection and sprinkler, surveillance and security, public address and
communications equipment and systems, partitions, elevators, escalators, motors,
machinery, pipes, fittings and other items of equipment of every kind and
description now or hereafter located on such Land or attached to the
Improvements thereto which by the nature of their location thereon or attachment
thereto are real property under applicable law.
"Indebtedness" of any Person shall mean, without duplication:
(a) All obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments and all other obligations of
such Person for borrowed money (including obligations to repurchase
receivables and other assets sold with recourse);
(b) All obligations of such Person for the deferred purchase
price of property or services (including obligations under letters of
credit and other credit facilities which secure or finance such
purchase price and the Lessee Obligations and obligations under other
"synthetic" leases);
(c) All obligations of such Person under conditional sale or
other title retention agreements with respect to property acquired by
such Person (to the extent of the value of such property if the rights
and remedies of the seller or lender under such agreement in the event
of default are limited solely to repossession or sale of such
property);
(d) All obligations of such Person as lessee under or with
respect to Capital Leases;
(e) All obligations of such Person, contingent or otherwise,
under or with respect to Surety Instruments;
(f) All obligations of such Person, contingent or otherwise,
under or with respect to Rate Contracts;
(g) All Guaranty Obligations of such Person with respect to
the obligations of other Persons of the types described in clauses
(a) - (f) above and all other Contingent Obligations of such Person;
and
1.01(a)-12
72
(h) All obligations of other Persons of the types described in
clauses (a) - (f) above to the extent secured by (or for which any
holder of such obligations has an existing right, contingent or
otherwise, to be secured by) any Lien in any property (including
accounts and contract rights) of such Person, even though such Person
has not assumed or become liable for the payment of such obligations.
"Indemnified Taxes" shall mean all income taxes, stamp taxes, sales
taxes, use taxes, rental taxes, gross receipts taxes, property (tangible and
intangible) taxes, franchise taxes, excise taxes, value added taxes, turnover
taxes, withholding taxes and other taxes and Governmental Charges, together with
any and all assessments, penalties, fines, additions and interest thereon,
except:
(a) Any tax based on or measured by net income or net receipts
(including taxes based on capital gains, minimum taxes and franchise
taxes in lieu of net income taxes) imposed on any Lessor Party by its
jurisdiction of incorporation or, in the case of any Participant, the
jurisdiction in which its Applicable Participating Office is located
(provided, however, that this definition shall not be construed to
prevent a payment from being made on an after-tax basis);
(b) Any tax or other Governmental Charge that has not become a
Lien on any of the Property and that Lessee is contesting pursuant to
Paragraph 3.12 of the Lease Agreement (but only while Lessee is so
contesting such tax or Governmental Charge);
(c) Any tax or other Governmental Charge that is imposed upon
an Indemnitee primarily as a result of the gross negligence or willful
misconduct of such Indemnitee itself (as opposed to gross negligence or
willful misconduct imputed to such Indemnitee), but not taxes or other
Governmental Charges imposed as a result of ordinary negligence of such
Indemnitee
(d) Any tax or other Governmental Charge to the extent it
relates to any act, event or omission that occurs with respect to the
Property after the termination of the Lease Agreement, redelivery or
sale of the Property in accordance with the terms of the Operative
Documents and payment by Lessee of all amounts due under the Operative
Documents, unless and to the extent such tax or Governmental Charge is
attributable to actions, omissions or events occurring in connection
with the exercise of remedies following an Event of Default; provided,
that this exclusion shall not apply to taxes or Governmental Charges
that are related to or arising from payments made under the Operative
Documents, or events, acts or omissions occurring or matters arising
prior to or simultaneous with the time set forth above; or
(e) Any tax which is a withholding tax if such tax is imposed
in respect of payments to a Lessor Party that is required to deliver a
United States Internal Revenue Service Form 1001 or 4224 if such form
is not effective to entitle such Lessor Party to receive payment under
the Operative Documents without deduction or withholding of United
States federal income tax as a result of an act or omission of such
Lessor Party.
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73
"Indemnitees" shall mean the Lessor Parties and their Affiliates and
their respective directors, officers, employees, agents, attorneys and advisors.
"Indemnity Amount" shall have the meaning given to that term in
Subparagraph 3.03(a) of the Purchase Agreement.
"Insurance Requirements" shall mean all terms, conditions and
requirements imposed by the policies of insurance which Lessee is required to
maintain by the Operative Documents.
"Interest Expenses" shall mean, with respect to Lessee and its
Subsidiaries for any period, the sum, determined on a consolidated basis in
accordance with GAAP, of (a) all interest (including Base Rent) accrued on the
Indebtedness of Lessee and its Subsidiaries during such period (including
interest attributable to Capital Leases and imputed interest on zero-coupon,
original issue discount and other similar instruments) and (b) all letter of
credit fees payable by Lessee and its Subsidiaries accrued during such period.
"Investment" of any Person shall mean any loan or advance of funds by
such Person to any other Person (other than advances to employees of such Person
for moving and travel expenses, drawing accounts and similar expenditures in the
ordinary course of business), any purchase or other acquisition of any Equity
Securities or Indebtedness of any other Person, any capital contribution by such
Person to or any other investment by such Person in any other Person; provided,
however, that Investments shall not include (a) accounts receivable or other
indebtedness owed by customers of such Person which are current assets and arose
from sales of inventory in the ordinary course of such Person's business or (b)
prepaid expenses of such Person incurred and prepaid in the ordinary course of
business.
"IRC" shall mean the Internal Revenue Code of 1986.
"Issues and Profits" shall mean all present and future rents,
royalties, issues, profits, receipts, revenues, income, earnings and other
benefits accruing from any of the Land, Lessor Improvements or Appurtenant
Rights (whether in the form of accounts, chattel paper, instruments, documents,
investment property, general intangibles or otherwise) including all rents and
other amounts payable pursuant to any Subleases, but excluding revenues to the
extent received by Lessee as a result of its occupation of the Property and
conduct of its business thereon.
"KeyBank" shall mean KeyBank National Association.
"Land" shall mean all lots, pieces, tracts or parcels of land described
in Exhibit A to the Lease Agreement and leased by Lessee pursuant to the Lease
Agreement.
"Lease Agreement" shall have the meaning given to that term in
Subparagraph 2.01(a) of the Participation Agreement.
"Lease Extension Request" shall have the meaning given to that term in
Paragraph 2.09 of the Participation Agreement.
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"Lease Reduction Payments" shall mean each of the following to the
extent applied to reduce the Outstanding Lease Amount pursuant to the Operative
Documents:
(a) Casualty and Condemnation Proceeds;
(b) The purchase price paid for the Property (or any portion
thereof) by Lessee, an Assignee Purchaser or a Designated Purchaser
pursuant to the Purchase Agreement;
(c) The Residual Value Guaranty Amount and the Indemnity
Amount, paid by Lessee pursuant to the Purchase Agreement;
(d) Any proceeds received by Lessee from any sale of the
Property after the Expiration Date if such Property is retained by
Lessor after such Expiration Date pursuant to the Purchase Agreement;
(e) Any proceeds received by any Lessor Party from the
exercise of any of its remedies under the Operative Documents after the
occurrence of an Event of Default under the Lease Agreement; and
(f) Any other amounts received by any Lessor Party which are
applied or required by the Operative Documents to be applied to reduce
the Outstanding Lease Amount.
"Lessee" shall mean Silicon Valley Group, Inc., acting in its capacity
as Lessee under the Operative Documents.
"Lessee Improvements" shall mean all alterations, renovations,
improvements and additions to the Property, and all substitutions and
replacements therefor, not financed by the Acquisition Advance and not made part
of the Lessor Improvements.
"Lessee Obligations" shall mean and include all liabilities and
obligations owed by Lessee to any Lessor Party under any of the Operative
Documents (including, without limitation, the Synthetic Lease Swap Agreement) of
every kind and description and however arising (whether direct or indirect,
absolute or contingent, due or to become due, now existing or hereafter
arising), including the obligation of Lessee to pay Rent, to pay the Residual
Value Guaranty Amount, the Indemnity Amount and/or Outstanding Lease Amount and
to pay all interest, fees, charges, expenses, attorneys' fees and accountants'
fees chargeable to Lessee or payable by Lessee under the Operative Documents.
"Lessee Property" shall have the meaning given to that term in
Subparagraph 3.10(b) of the Lease Agreement.
"Lessee Security Documents" shall mean and include the Lease Agreement,
the Assignment of Remediation Agreements, the Cash Collateral Agreement and all
other instruments, agreements, certificates, opinions and documents (including
Uniform Commercial
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Code financing statements and fixture filings and landlord waivers) delivered by
Lessee to any Lessor Party in connection with any Collateral or to secure the
Lessee Obligations.
"Lessor" shall mean SELCO Service Corporation, acting in its capacity
as Lessor under the Operative Documents.
"Lessor Deed of Trust" shall have the meaning given to that term in
Subparagraph 2.11(b) of the Participation Agreement.
"Lessor Improvements" shall mean all Improvements, other than Lessee
Improvements, and all Modifications, except that (a) any Modifications removed
from the Property prior to the Expiration Date in accordance with Paragraph 3.10
of the Lease Agreement shall cease to be Lessor Improvements and (b) any Lessee
Improvements not removed from the Property prior to the Expiration Date in
accordance with Paragraph 3.10 of the Lease Agreement shall, if Lessor shall so
elect in accordance with such subparagraph, become Lessor Improvements.
"Lessor/Lessee Deed of Trust" shall have the meaning given to that term
in Subparagraph 2.11(c) of the Participation Agreement.
"Lessor Liens" shall mean any Liens or other interests in any of the
Property of any Person other than Lessee or a Lessor Party arising as a result
of (a) any transfer or assignment by a Lessor Party to such Person of any of
such Lessor Party's interests in such Property in violation of any of the
Operative Documents or (b) any claim against a Lessor Party by any such Person
unrelated to any of the Operative Documents or the transactions contemplated
thereby. (Lessor Liens shall include Liens granted by Lessor to Agent or any
Participant to secure the Lessor Obligations.)
"Lessor Obligations" shall mean and include (a) with respect to Agent
and the Participants, all liabilities and obligations owed by Lessor to Agent or
any Participant under any of the Operative Documents of every kind and
description and however arising (whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter arising), including
the obligation of Lessor to share payments made by Lessee to Lessor under the
Operative Documents as provided in Paragraph 2.06 of the Participation Agreement
and (b) with respect to Lessee, all liabilities and obligations owed by Lessor
to Lessee under any of the Operative Documents of every kind and description and
however arising (whether direct or indirect, absolute or contingent, due or to
become due, now existing or hereafter arising), including the obligation of
Lessor to sell and convey the Property to Lessee pursuant to the Purchase
Agreement.
"Lessor Parties" shall mean Lessor, the Participants and Agent.
"Lessor Security Agreement" shall have the meaning given to that term
in Subparagraph 2.11(b) of the Participation Agreement.
"Lessor's Retention Amount" shall have the meaning given to that term
in Subparagraph 3.03(b) of the Purchase Agreement.
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"Leverage Ratio" shall mean, with respect to Lessee at any time, the
ratio, determined on a consolidated basis in accordance with GAAP, of (a) the
Senior Indebtedness of Lessee and its Subsidiaries at such time to (b) the Total
Capital of Lessee and its Subsidiaries at such time.
"LIBO Rate" shall mean, with respect to any Rental Period for a
Portion, a rate per annum equal to the quotient (rounded upward if necessary to
the nearest 1/100 of one percent) of (a) the arithmetic mean (rounded upward if
necessary to the nearest 1/16 of one percent) of the rates per annum appearing
on the Telerate Page 3750 (or any successor publication) on the second Business
Day prior to the first day of such Rental Period at or about 11:00 A.M. (London
time) (for delivery on the first day of such Rental Period) for a term
comparable to such Rental Period, divided by (b) one minus the Reserve
Requirement in effect from time to time. If for any reason rates are not
available as provided in clause (a) of the preceding sentence, the rate to be
used in clause (a) shall be the rate per annum at which Dollar deposits are
offered to Agent in the London interbank eurodollar currency market on the
second Business Day prior to the first day of such Rental Period at or about
10:00 A.M. (New York time) (for delivery on the first day of such Rental Period)
in an amount substantially equal to Agent's Proportionate Share of the
applicable Portion and for a term comparable to such Rental Period. The LIBO
Rate shall be adjusted automatically as of the effective date of any change in
the Reserve Requirement.
"LIBOR Rental Rate" shall mean, for any Rental Period and Portion, the
per annum rate equal to the LIBO Rate for such Rental Period and Portion, plus
the Applicable Margin, such rate to change from time to time during such period
as the Applicable Margin shall change.
"Lien" shall mean, with respect to any property, any security interest,
mortgage, pledge, lien, charge or other encumbrance in, of, or on such property
or the income therefrom, including, without limitation, the interest of a vendor
or lessor under a conditional sale agreement, Capital Lease or other title
retention agreement, or any agreement to provide any of the foregoing, and the
filing of any financing statement or similar instrument under the Uniform
Commercial Code or comparable law of any jurisdiction.
"Major Casualty" shall mean, with respect to the Property, any Casualty
affecting the Property where (a) the damage to the Property is treated by any
insurer of the Property as a total loss; or (b) the Property cannot reasonably
be repaired and restored prior to the expiration of the Term of the Lease to
substantially the condition in which it existed immediately prior to such
Casualty.
"Major Condemnation" shall mean, with respect to the Property, any
Condemnation affecting the Property where (a) all or substantially all of the
Property is taken by such Condemnation; or (b) the Property cannot reasonably be
repaired and restored prior to the expiration of the Term of the Lease to a
value that is not less than the Expiration Date Appraisal.
"Margin Stock" shall have the meaning given to that term in Regulation
U issued by the Federal Reserve Board.
"Marketing Period" shall have the meaning given to that term in
Subparagraph 3.02(a) of the Purchase Agreement.
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"Material Adverse Effect" shall mean a material adverse effect on (a)
the business, assets, operations, prospects or financial or other condition of
Lessee and its Subsidiaries, taken as a whole; (b) the ability of Lessee to pay
or perform the Lessee Obligations when due in accordance with the terms of the
Operative Documents; (c) the rights and remedies of any Lessor Party under the
Operative Documents or any related document, instrument or agreement; (d) the
perfection or the priority of any Lessor Party's security interests, Liens or
other rights in the Property and the Collateral; or (e) the value of the
Property and the Collateral.
"Material Subsidiary" shall mean SVGL, SVGIS, Xxxxxxx, and any other
Subsidiary which at any time has assets with a book value equal to or greater
than ten percent (10%) of the total consolidated assets of Lessee and its
Subsidiaries and any Subsidiary which owns more than ten percent (10%) of the
capital stock of any Material Subsidiary.
"maturity" shall mean, with respect to any Rent, interest, fee or other
amount payable by Lessee under the Operative Documents, the date such Rent,
interest, fee or other amount becomes due, whether upon the stated maturity or
due date, upon acceleration or otherwise.
"Modifications" shall have the meaning given to that term in
Subparagraph 3.01(b) of the Lease Agreement.
"Multiemployer Plan" shall mean any multiemployer plan within the
meaning of Section 3(37) of ERISA maintained or contributed to by Lessee or any
ERISA Affiliate.
"Net Proceeds" shall mean, with respect to any issuance of Equity
Securities by Lessee or any of its Subsidiaries, the aggregate consideration
received by Lessee or such Subsidiary from such issuance less the sum of the
actual amount of the reasonable fees and commissions payable to Persons other
than Lessee or any Affiliate of Lessee and the other reasonable costs and
expenses (including reasonable legal expenses) directly related to such issuance
that are to be paid by Lessee or any of its Subsidiaries.
"Net Proceeds of Sale" shall mean, with respect to a sale of the
Property by Lessor to a Designated Purchaser pursuant to Paragraph 3.02 of the
Purchase Agreement, the net amount of the proceeds of the sale of the Property,
after deducting from the gross proceeds of such sale (a) all sales taxes and
other taxes as may be applicable to such sale or transfer of the Property, (b)
all fees, costs and expenses of such sale incurred by Lessor and (c) any amounts
for which, if not paid, Lessor would be liable or which, if not paid, would
constitute a Lien on the Property.
"Notice of Rental Period Selection" shall have the meaning given to
that term in Subparagraph 2.03(a) of the Lease Agreement.
"Notice of Return Option Exercise" shall have the meaning given to that
term in Subparagraph 3.01(a) of the Purchase Agreement.
"Notice of Security Interest" shall have the meaning given to that term
in Subparagraph 2.01(a) of the Cash Collateral Agreement.
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"Notice of Term Purchase Option Exercise" shall have the meaning given
to that term in Paragraph 2.02 of the Purchase Agreement.
"Operative Documents" shall mean and include the Participation
Agreement, the Lease Agreement, the Purchase Agreement, the Lessee Security
Documents, the Lessor Deed of Trust, the Lessor Security Agreement, the
Assignment of Lease, the Agent's Structuring Fee Letter and the Synthetic Lease
Swap Agreement; all other notices, requests, certificates, documents,
instruments and agreements delivered to any Lessor Party pursuant to Paragraph
3.01 of the Participation Agreement; and all notices, requests, certificates,
documents, instruments and agreements executed by Lessee and delivered to any
Lessor Party in connection with any of the foregoing on or after the date of the
Participation Agreement. (Without limiting the generality of the preceding
definition, the term "Operative Documents" shall include all written waivers,
amendments and modifications to any of the notices, requests, certificates,
documents, instruments and agreements referred to therein.)
"Outstanding Lease Amount" shall mean, on any date, the remainder of
(a) the amount of the Acquisition Advance, minus (b) the sum of all Lease
Reduction Payments applied on or prior to such date.
"Outstanding Participation Amount" shall mean, with respect to any
Participant on any date, the remainder of (a) the portion of the Acquisition
Advance funded by such Participant on or prior to such date, minus (b) the sum
of such Participant's share of all Lease Reduction Payments applied to the
Outstanding Lease Amount on or prior to such date.
"Outstanding Revolver Credit" shall mean, at any time, the sum of (a)
the aggregate principal amount of all loans outstanding at such time under the
Credit Agreement, (b) the aggregate amount available for drawing under all
letters of credit outstanding at such time under the Credit Agreement and (c)
the aggregate amount of all reimbursement obligation outstanding at such time
under the Credit Agreement.
"Outstanding Tranche A Participation Amount" shall mean, with respect
to any Tranche A Participant on any date, the remainder of (a) such
Participant's Tranche A Portion of the Acquisition Advance made by Lessor on or
prior to such date, minus (b) such Participant's share of all Lease Reduction
Payments applied to the Tranche A Portion of the Acquisition Advance on or prior
to such date.
"Outstanding Tranche B Participation Amount" shall mean, with respect
to any Tranche B Participant on any date, the remainder of (a) such
Participant's Tranche B Portion of the Acquisition Advance made by Lessor on or
prior to such date, minus (b) such Participant's share of all Lease Reduction
Payments applied to the Tranche B Portion of the Acquisition Advance on or prior
to such date.
"Participants" shall mean the financial institutions from time to time
listed in Schedule I to the Participation Agreement (as amended from time to
time pursuant to Subparagraph 7.05(b) of the Participation Agreement), acting in
their capacities as Participants under the Operative Documents.
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"Participation Agreement" shall mean the Participation Agreement, dated
as of June 30, 1999 among Lessee and the Lessor Parties.
"PBGC" shall mean the Pension Benefit Guaranty Corporation.
"Permitted Indebtedness" shall have the meaning given to that term in
Subparagraph 5.02(a) of the Participation Agreement.
"Permitted Liens" shall have the meaning given to that term in
Subparagraph 5.02(b) of the Participation Agreement.
"Permitted Property Liens" shall have the meaning given to that term in
Subparagraph 3.07(a) of the Lease Agreement.
"Permitted Transaction Expenses" shall mean the following costs and
expenses to the extent payable by Lessee in connection with and directly related
to the preparation, execution and delivery of the Operative Documents and the
transactions contemplated thereby:
(a) The reasonable fees and expenses of counsel for each of
Lessor and Agent incurred in connection with the Operative Documents;
(b) The reasonable fees and expenses incurred in recording,
registering or filing any of the Operative Documents;
(c) The title fees, premiums and escrow costs and other
expenses relating to title insurance and the closing of the
transactions contemplated by the Operative Documents;
(d) The reasonable fees and expenses of required environmental
audits; and
(e) The reasonable fees and expenses for surveys and
appraisals.
"Person" shall mean and include an individual, a partnership, a
corporation (including a business trust), a joint stock company, an
unincorporated association, a limited liability company, a joint venture, a
trust or other entity or a Governmental Authority.
"Personal Property Collateral" shall have the meaning given to that
term in Subparagraph 2.07(b) of the Lease Agreement.
"Portion" shall mean a portion of the Outstanding Lease Amount. If, at
any time, Lessee has not elected to divide the Outstanding Lease Amount into two
or more portions, any reference to a Portion shall mean the total Outstanding
Lease Amount at such time.
"Pricing Grid" shall mean Schedule II to the Participation Agreement.
"Pricing Period" shall mean (a) the period commencing on the date of
this Agreement (i.e., June 30, 1999) and ending on September 30, 1999 and (b)
each consecutive three-calendar
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month period thereafter which commences on the day following the last day of the
immediately preceding three-calendar month period and ends on the last day of
that time period.
"Prime Rate" shall mean the per annum rate publicly announced by
KeyBank from time to time at its office in Cleveland, Ohio as its "prime rate."
The Prime Rate is determined by KeyBank from time to time as a means of pricing
credit extensions to some customers and is neither directly tied to any external
rate of interest or index nor necessarily the lowest rate of interest charged by
KeyBank at any given time for any particular class of customers or credit
extensions. Any change in the Base Rate resulting from a change in the Prime
Rate shall become effective on the Business Day on which each change in the
Prime Rate occurs.
"Property" shall have the meaning given to that term in Paragraph 2.01
of the Lease Agreement.
"Property Collateral" shall have the meaning given to that term in
Subparagraph 2.11(a) of the Participation Agreement.
"Proportionate Share" shall mean, with respect to each Participant, the
percentage set forth under the caption "Proportionate Share" opposite such
Participant's name in Part A of Schedule I or, if changed, such percentage as
may be set forth for such Participant in the Register. The Proportionate Share
of each Participant shall equal the sum of such Participant's Tranche A and
Tranche B Percentage.
"Purchase Agreement" shall have the meaning given to that term in
Subparagraph 2.01(a) of the Participation Agreement.
"Purchase Documents" shall have the meaning given to that term in
Subparagraph 4.01(a) of the Purchase Agreement.
"Purchaser" shall have the meaning given to that term in Subparagraph
4.01(b) of the Purchase Agreement.
"Quick Ratio" shall mean, with respect to Lessee at any time, the
ratio, determined on a consolidated basis in accordance with GAAP, of:
(a) The remainder at such time of (i) the sum of (A) all cash
of Lessee and its Subsidiaries, (B) the current market value of all
cash equivalents of Lessee and its Subsidiaries and (C) all accounts
receivable of Lessee and its Subsidiaries (net of all reserves
therefor) minus (ii) to the extent included in the foregoing sum, the
sum of all cash, cash equivalents and accounts receivable of Lessee and
its Subsidiaries that are subject to a Lien or otherwise restricted;
to
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(b) The sum at such time of (i) the current liabilities of
Lessee and its Subsidiaries and (ii) to the extent not included in such
current liabilities, the Outstanding Revolver Credit at such time.
"Rate Contracts" shall mean swap agreements (as that term is defined in
Section 101 of the Federal Bankruptcy Reform Act of 1978, as amended) and any
other agreements or arrangements designed to provide protection against
fluctuations in interest or currency exchange rates, including without
limitation, the Synthetic Lease Swap Agreement.
"Real Property Collateral" shall have the meaning given to that term in
Subparagraph 2.07(a) of the Lease Agreement.
"Register" shall have the meaning given to that term in Subparagraph
7.05(b) of the Participation Agreement.
"Related Agreements" shall mean all chattel paper, accounts,
instruments, documents, investment property and general intangibles relating to
any of the Land, Lessor Improvements or Appurtenant Rights or to the present or
future development, construction, operation or use of any of the Land, Lessor
Improvements or Appurtenant Rights, including (a) all plans, specifications,
construction agreements, maps, surveys, studies, books of account, records,
files, insurance policies, guarantees and warranties relating to such Land or
Lessor Improvements or to the present or future development, construction,
operation or use of such Land, Lessor Improvements or Appurtenant Rights; (b)
all architectural, engineering, construction and management contracts, all
supply and service contracts for water, sanitary and storm sewer, drainage,
electricity, steam, gas, telephone and other utilities relating to such Land,
Lessor Improvements or Appurtenant Rights or to the present or future
development, construction, operation or use of such Land, Lessor Improvements or
Appurtenant Rights; and (c) all computer software and intellectual property,
guaranties and warranties, letters of credit, and documents relating to such
Land, Lessor Improvements or Appurtenant Rights or to the present or future
development, construction, operation or use of such Land, Lessor Improvements or
Appurtenant Rights.
"Related Goods" shall mean:
(a) All machinery, furniture, equipment, fixtures and other
goods and tangible personal property (including construction materials
and supplies) financed by the Acquisition Advance, including all such
property (if any) described in Exhibit B to the Lease Agreement; and
(b) All machinery, equipment, fixtures and other goods and
tangible personal property (including construction materials and
supplies) hereafter made part of the Lessor Improvements or other
Property, except that any Related Goods removed from the Property prior
to the Expiration Date in accordance with Paragraph 3.10 of the Lease
Agreement shall cease to be Lessor Improvements.
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"Related Permits" shall mean all licenses, authorizations,
certificates, variances, consents, approvals and other permits, now or hereafter
pertaining to any of the Land, Lessor Improvements or Appurtenant Rights and all
tradenames or business names primarily relating to any of the Land, Lessor
Improvements or Appurtenant Rights or the present or future development,
construction, operation or use of any of the Land, Lessor Improvements or
Appurtenant Rights, but shall not include any of the foregoing if primarily
related to the conduct by an occupant of the Property of its business.
"Remediation Agreements" shall have the meaning given to that term in
the Paragraph 2.01 of the Assignment of Remediation Agreements.
"Remediator" shall mean ARCADIS Xxxxxxxx & Xxxxxx, Inc., a Delaware
corporation.
"Rent" shall mean collectively Base Rent and Supplemental Rent.
"Rental Periods" shall mean (a) with respect to the entire Outstanding
Lease Amount, the initial period that begins on the Commencement Date for the
Lease Agreement and ends on the first Business Day in the first calendar month
immediately following the month in which the Commencement Date occurs; and (b)
With respect to any Portion of the Outstanding Lease Amount thereafter, the time
period selected by Lessee for such Portion pursuant to Subparagraph 2.03(a) of
the Lease Agreement which commences on the first day of such Portion and ends on
the last day of the period so selected by Lessee and each subsequent time period
selected by Lessee pursuant to Subparagraph 2.03(a) of the Lease Agreement. Each
Rental Period shall commence on the last day of the immediately preceding Rental
Period.
"Rental Rate" shall have the meaning given to that term in Subparagraph
2.03(a) of the Lease Agreement.
"Repair and Restoration Account" shall have the meaning given to that
term in Subparagraph 3.04(c) of the Lease Agreement.
"Reportable Event" shall have the meaning given to that term in ERISA
and applicable regulations thereunder.
"Required Participants" shall mean, at any time, Participants whose
Proportionate Shares then equal or exceed sixty-six and two-thirds percent
(66 2/3%), except at any time any Participant is a Defaulting Participant. At
any time any Participant is a Defaulting Participant, all Defaulting
Participants shall be excluded in determining "Required Participants", and
"Required Participants" shall mean non-defaulting Participants having total
Commitments that then equal or exceed sixty-six and two-thirds percent (66 2/3%)
of the total Commitments of all non-defaulting Participants.
"Requirement of Law" applicable to any Person shall mean (a) the
Articles or Certificate of Incorporation and By-laws, Partnership Agreement or
other organizational or governing documents of such Person, (b) any Governmental
Rule applicable to such Person, (c) any license, permit, approval or other
authorization granted by any Governmental Authority to or for the
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benefit of such Person or (d) any judgment, decision or determination of any
Governmental Authority or arbitrator, in each case applicable to or binding upon
such Person or any of its property or to which such Person or any of its
property is subject.
"Reserve Requirement" shall mean, with respect to any day in any Rental
Period, the aggregate of the reserve requirement rates (expressed as a decimal)
in effect on such day for eurocurrency funding (currently referred to as
"Eurocurrency liabilities" in Regulation D of the Federal Reserve Board)
maintained by a member bank of the Federal Reserve System. As used herein, the
term "reserve requirement" shall include, without limitation, any basic,
supplemental or emergency reserve requirements imposed on any Participant by any
Governmental Authority. (As of the Closing Date, the Reserve Requirement is zero
percent (0%).)
"Residual Value Guaranty Amount" shall have the meaning given to that
term in Subparagraph 3.03(a) of the Purchase Agreement.
"Return Option" shall have the meaning given to that term in
Subparagraph 3.01(a) of the Purchase Agreement.
"Scheduled Expiration Date" shall have the meaning given to that term
in Subparagraph 2.02(a) of the Lease Agreement.
"Scheduled Rent Payment Date" shall have the meaning given to that term
in Subparagraph 2.03(a) of the Lease Agreement.
"Seller" shall mean Xxxxxxx-Xxxxxxx Company.
"Senior Debt/EBITDA Ratio" shall mean, with respect to Lessee for any
period, the ratio, determined on a consolidated basis in accordance with GAAP,
of:
(a) Lessee's Senior Indebtedness on the last day of such
period;
to
(b) Lessee's EBITDA for such period.
"Senior Indebtedness" shall mean, with respect to Lessee and its
Subsidiaries at any time, the remainder, determined on a consolidated basis in
accordance with GAAP, of (a) the total Indebtedness of Lessee and its
Subsidiaries at such time minus (b) the total Subordinated Indebtedness of
Lessee and its Subsidiaries at such time.
"Solvent" shall mean, with respect to any Person on any date, that on
such date (a) the fair value of the property of such Person is greater than the
fair value of the liabilities (including contingent, subordinated, matured and
unliquidated liabilities) of such Person, (b) the present fair saleable value of
the assets of such Person is greater than the amount that will be required to
pay the probable liability of such Person on its debts as they become absolute
and matured, (c) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature and (d) such Person is not engaged in
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or about to engage in business or transactions for which such Person's
property would constitute an unreasonably small capital.
"Subleases" shall mean all leases and subleases of any of the Land,
Lessor Improvements and/or Appurtenant Rights by Lessee as lessor or sublessor,
now or hereafter in effect, whether or not of record, including all guaranties
and security therefor and the right to bring actions and proceedings thereunder
or for the enforcement thereof and to do anything which Lessee is or may become
entitled to do thereunder.
"Subordinated Indebtedness" shall mean Indebtedness which is unsecured
and subordinated to the Lessee Obligations on terms reasonably acceptable to
Lessor and the Required Participants.
"Subparticipants" shall have the meaning given to that term in
Subparagraph 7.05(c) of the Participation Agreement.
"Subsidiary" of any Person shall mean (a) any corporation of which more
than 50% of the issued and outstanding Equity Securities having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by one or
more of such Person's other Subsidiaries, (b) any partnership, joint venture,
limited liability company or other association of which more than 50% of the
equity interest having the power to vote, direct or control the management of
such partnership, joint venture or other association is at the time owned and
controlled by such Person, by such Person and one or more of the other
Subsidiaries or by one or more of such Person's other Subsidiaries or (c) any
other Person included in the Financial Statements of such Person on a
consolidated basis.
"Supplemental Rent" shall have the meaning given to that term in
Subparagraph 2.03(b) of the Lease Agreement.
"Surety Instruments" shall mean all letters of credit (including
standby and commercial), banker's acceptances, bank guaranties, shipside bonds,
surety bonds and similar instruments.
"SVGL" shall mean SVG Lithography Systems, Inc., a Delaware
corporation.
"SVGIS" shall mean SVG International Service, a California corporation.
"Synthetic Lease Swap Agreement" shall mean that certain interest rate
swap agreement in the form of Exhibit L, dated as of June 29, 1999, between
Lessee and KeyBank, pursuant to which Lessee is provided protection against
fluctuations in the LIBOR Rental Rates payable by Lessee from time to time on
the Outstanding Lease Amount.
"Tangible Net Worth" shall mean, with respect to Lessee at any time,
the remainder at such time, determined on a consolidated basis in accordance
with GAAP, of:
1.01(a)-25
85
(a) The sum of (i) the total assets of Lessee and its
Subsidiaries at such time plus (ii) the after tax effect of the lesser
of (A) the sum of all Xxxxxxx-Xxxxxxx Charges taken by Lessee and its
Subsidiaries prior to such time and (B) fifteen million Dollars
($15,000,000);
minus
(b) The sum (without limitation and without duplication of
deductions) of (i) the total liabilities of Lessee and its
Subsidiaries, (ii) all reserves established by Lessee and its
Subsidiaries for anticipated losses and expenses (to the extent not
deducted in calculating total assets in clause (a) above), and (iii)
all intangible assets of Lessee and its Subsidiaries (to the extent
included in calculating total assets in clause (a) above), including,
without limitation, goodwill (including any amounts, however designated
on the balance sheet, representing the cost of acquisition of
businesses and investments in excess of underlying tangible assets),
trademarks, trademark rights, trade name rights, copyrights, patents,
patent rights, licenses, unamortized debt discount, marketing expenses,
organizational expenses, non-compete agreements and deferred research
and development.
"Term" shall mean the period beginning on the Commencement Date and
ending on the Expiration Date.
"Termination Date" shall mean the earliest of (a) the date set forth in
a Notice of Term Purchase Option as the Scheduled Rent Payment Date on which the
Lease Agreement will be terminated by Lessee pursuant to Paragraph 4.01 of the
Lease Agreement and the Property will be purchased by Lessee pursuant to Section
II of the Purchase Agreement, (b) the date set forth in a written notice
delivered by Lessor to Lessee pursuant to Subparagraph 5.03(a) of the Lease
Agreement after the occurrence of an Event of Default thereunder as the date on
which the Lease Agreement will be terminated, and (c) the date set forth in a
written notice delivered by Lessor to Lessee pursuant to Subparagraph 5.04(a) of
the Lease Agreement after the occurrence of an Event of Default thereunder as
the date on which all unpaid Lessee Obligations are due and payable.
"Term Purchase Option" shall have the meaning given to that term in
Paragraph 2.01 of the Purchase Agreement.
"Xxxxxxx" shall mean Xxxxxxx Laboratories, Inc., a California
corporation.
"Total Capital" shall mean, with respect to Lessee at any time, the
sum, determined on a consolidated basis in accordance with GAAP, of (a) the
total Indebtedness of Lessee and its Subsidiaries (including Subordinated
Indebtedness) at such time plus (b) the stockholders' equity of Lessee and its
Subsidiaries at such time.
"Total Commitment" shall mean the amount set forth as such in
Subparagraph 2.01(b) of the Participation Agreement or, if such amount is
reduced pursuant to Subparagraph 2.08(a) of the Participation Agreement, the
amount to which so reduced.
1.01(a)-26
86
"Tranche A Participant" shall mean, at any time, any Participant having
an Outstanding Tranche A Participation Amount at such time.
"Tranche A Percentage" shall mean, with respect to each Participant at
any time, the percentage set forth under the caption "Tranche A Percentage"
opposite such Participant's name in Part A of Schedule I or, if changed, such
percentage as may be set forth for such Participant in the Register.
"Tranche A Portion" shall mean, (a) with respect to the Acquisition
Advance without reference to any Participant, the portion of the Acquisition
Advance equal to the Tranche A Proportionate Share of the Acquisition Advance
and (b) with respect to the Acquisition Advance with reference to any
Participant, the portion of the Acquisition Advance equal to such Participant's
Tranche A Percentage of the Acquisition Advance.
"Tranche A Proportionate Share" shall mean eighty-five percent
(85.00%).
"Tranche B Participant" shall mean, at any time, any Participant having
an Outstanding Tranche B Participation Amount at such time.
"Tranche B Percentage" shall mean, with respect to each Participant,
the percentage set forth under the caption "Tranche B Percentage" opposite such
Participant's name in Part A of Schedule I or, if changed, such percentage as
may be set forth for such Participant in the Register.
"Tranche B Portion" shall mean, (a) with respect to the Acquisition
Advance without reference to any Participant, the portion of the Acquisition
Advance equal to the Tranche B Proportionate Share of the Acquisition Advance
and (b) with respect to the Acquisition Advance with reference to any
Participant, the portion of the Acquisition Advance equal to such Participant's
Tranche B Percentage of the Acquisition Advance.
"Tranche B Proportionate Share" shall mean fifteen percent (15.00%).
"UCC" shall mean the California Uniform Commercial Code.
"Xxxxxxx-Xxxxxxx Acquisition" shall mean the acquisition of certain
assets and liabilities of Xxxxxxx-Xxxxxxx Semiconductor Equipment Group, a
division of Xxxxxxx-Xxxxxxx Company.
"Xxxxxxx-Xxxxxxx Charges" shall mean, with respect to any period, all
non-recurring charges taken by Lessee and its Subsidiaries during such period in
connection with the Xxxxxxx-Xxxxxxx Acquisition (including charges for the
write-off of in-process research and development costs, consolidation,
relocation and other charges relating to such acquisitions).
"Water Supply Agreement" shall mean that certain Water Supply
Agreement, dated as of June 30, 1999, by and between Lessee and the Remediator.
1.01(a)-27
87
SCHEDULE 1.02
RULES OF INTERPRETATION
(a) GAAP. Unless otherwise indicated in any Operative Document, all
accounting terms used in the Operative Documents shall be construed, and all
accounting and financial computations thereunder shall be computed, in
accordance with GAAP. If GAAP changes after the date of the Participation
Agreement such that any covenants contained in the Operative Documents would
then be calculated in a different manner or with different components, Lessee
and the Lessor Parties agree to negotiate in good faith to amend the applicable
Operative Documents in such respects as are necessary to conform those covenants
as criteria for evaluating Lessee's financial condition to substantially the
same criteria as were effective prior to such change in GAAP; provided, however,
that, until Lessee and the Lessor Parties so amend the Operative Documents, all
such covenants shall be calculated in accordance with GAAP as in effect
immediately prior to such change.
(b) Headings. Headings in each of the Operative Documents are for
convenience of reference only and are not part of the substance thereof.
(c) Plural Terms. All terms defined in any Operative Document in the
singular form shall have comparable meanings when used in the plural form and
vice versa.
(d) Time. All references in each of the Operative Documents to a time
of day shall mean San Francisco, California time, unless otherwise indicated.
All references in each of the Operative Documents to a date (the "action date")
which is one month prior to or after another date (the "reference date") shall
mean the date in the immediately preceding or succeeding calendar month (as the
case may be) which numerically corresponds to the reference date; provided,
however, that (i) if such corresponding date in the immediately preceding or
succeeding calendar month (as the case may be) is not a Business Day, the action
date shall be the next succeeding Business Day after such corresponding date
(unless, in the case of a Rental Period, such next Business Day falls in another
calendar month, in which case the action date shall be the immediately preceding
Business Day) and (ii) if the reference date is the last Business Day of a
calendar month (or a day for which there is no numerically corresponding day in
the immediately preceding calendar month) the action date shall be the last
Business Day of the immediately preceding or succeeding calendar month (as the
case may be). All references in each of the Operative Documents to an earlier
date which is two or more months prior to a reference date or to a later date
which is two or more months after a reference date shall be determined in a
comparable manner.
(e) Governing Law. Unless otherwise provided in any Operative Document,
each of the Operative Documents shall be governed by and construed in accordance
with the laws of the State of California without reference to conflicts of law
rules.
(f) Interpretation. The Operative Documents are the result of
negotiations among, and have been reviewed by Lessee and each Lessor Party and
their respective counsel.
1.02-1
88
Accordingly, the Operative Documents shall be deemed to be the product of all
parties hereto, and no ambiguity shall be construed in favor of or against
Lessee or any Lessor Party.
(g) Entire Agreement. The Operative Documents, taken together,
constitute and contain the entire agreement of Lessee and the Lessor Parties and
supersede any and all prior agreements, negotiations, correspondence,
understandings and communications among the parties, whether written or oral,
respecting the subject matter thereof (including the proposal dated April 21,
1999) but excluding the Agent's Structuring Fee Letter).
(h) Calculation of Base Rent, Interest and Fees. All calculations of
Base Rent, interest and fees under the Operative Documents for any period (i)
shall include the first day of such period and exclude the last day of such
period and (ii) shall be calculated on the basis of a year of 360 days for
actual days elapsed, except that during any period that Base Rent or any
interest is to be calculated based upon the Base Rate, such Base Rent or
interest shall be calculated on the basis of a year of 365 or 366 days, as
appropriate, for actual days elapsed.
(i) References.
(i) References in any Operative Document to "Recitals,"
"Sections," "Paragraphs," "Subparagraphs," "Articles," "Exhibits" and
"Schedules" are to recitals, sections, paragraphs, subparagraphs,
articles, exhibits and schedules therein and thereto unless otherwise
indicated.
(ii) References in any Operative Document to any document,
instrument or agreement (A) shall include all exhibits, schedules and
other attachments thereto, (B) shall include all documents, instruments
or agreements issued or executed in replacement thereof, and (C) shall
mean such document, instrument or agreement, or replacement or
predecessor thereto, as amended, modified and supplemented from time to
time and in effect at any given time.
(iii) References in any Operative Document to any Governmental
Rule (A) shall include any successor Governmental Rule, (B) shall
include all rules and regulations promulgated under such Governmental
Rule (or any successor Governmental Rule), and (C) shall mean such
Governmental Rule (or successor Governmental Rule) and such rules and
regulations, as amended, modified, codified or reenacted from time to
time and in effect at any given time.
(iv) References in any Operative Document to any Person in a
particular capacity (A) shall include any permitted successors to and
assigns of such Person in that capacity and (B) shall exclude such
Person individually or in any other capacity.
(j) Other Interpretive Provisions. The words "hereof," "herein" and
"hereunder" and words of similar import when used in any Operative Document
shall refer to such Operative Document as a whole and not to any particular
provision of such Operative Document. The words "include" and "including" and
words of similar import when used in any Operative Document shall not be
construed to be limiting or exclusive. In the event of any inconsistency
1.02-2
89
between the terms of the Participation Agreement and the terms of any other
Operative Document, the terms of the Participation Agreement shall govern.
1.02-3
90
SCHEDULE 3.01
CONDITIONS PRECEDENT TO ACQUISITION ADVANCE
A. PRINCIPAL OPERATIVE DOCUMENTS EXECUTED BY LESSEE.
(1) The Participation Agreement, duly executed by Lessee,
Lessor, each Participant and Agent;
(2) The Lease Agreement, duly executed by Lessee and Lessor
and appropriately notarized for recording;
(3) The Purchase Agreement, duly executed by Lessee and
Lessor;
(4) The Assignment of Remediation Agreements;
(5) The Cash Collateral Agreement, duly executed by Lessee,
Lessor, Agent and KeyBank; and
(6) The Synthetic Lease Swap Agreement, duly executed by
Lessee and KeyBank.
B. LESSEE CORPORATE DOCUMENTS.
(1) The Certificate or Articles of Incorporation of Lessee,
certified as of a recent date prior to the Closing Date by the
Secretary of State (or comparable official) of its jurisdiction of
incorporation;
(2) A Certificate of Good Standing (or comparable certificate)
for Lessee, certified as of a recent date prior to the Closing Date by
the Secretary of State (or comparable official) of its jurisdiction of
incorporation;
(3) A certificate of the Secretary or an Assistant Secretary
of Lessee, dated the Closing Date, certifying (a) that attached thereto
is a true and correct copy of the Bylaws of Lessee as in effect on the
Closing Date; (b) that attached thereto are true and correct copies of
resolutions duly adopted by the Board of Directors of Lessee and
continuing in effect, which authorize the execution, delivery and
performance by Lessee of the Operative Documents executed or to be
executed by Lessee and the consummation of the transactions
contemplated thereby; and (c) that there are no proceedings for the
dissolution or liquidation of Lessee;
(4) A certificate of the Secretary or an Assistant Secretary
of Lessee, dated the Closing Date, certifying the incumbency,
signatures and authority of the officers of Lessee authorized to
execute, deliver and perform the Operative Documents and all other
3.01-1
91
documents, instruments or agreements related thereto executed or to be
executed by Lessee; and
(5) Certificates of Good Standing (including tax good
standing) for Lessee, certified as of a recent date prior to the
Closing Date by the Secretary of State of the State of California.
C. FINANCIAL STATEMENTS, FINANCIAL CONDITION, ETC.
(1) A copy of the unaudited Financial Statements of Lessee and
its Subsidiaries for the fiscal quarter ended March 31, 1999 and for
the fiscal year to such date (prepared on a consolidated and
consolidating basis), certified by the chief financial officer of
Lessee to present fairly the financial condition, results of operations
and other information reflected therein and to have been prepared in
accordance with GAAP (subject to normal year-end audit adjustments);
(2) A copy of the audited consolidated Financial Statements of
Lessee for the fiscal year ended September 30, 1998, prepared by
Deloitte & Touche and a copy of the unqualified opinion delivered by
such accountants in connection with such Financial Statements;
(3) A copy of the 10-Q report filed by Lessee with the
Securities and Exchange Commission for the quarter ended March 31,
1999;
(4) A copy of the 10-K report filed by Lessee with the
Securities and Exchange Commission for the fiscal year ended September
30, 1998; and
(5) The consolidated plan and forecast of Lessee and its
Subsidiaries for the fiscal year[s] to end September 30, 1999 and 2000.
D. COLLATERAL DOCUMENTS.
(1) A deed transferring to Lessor the fee interest in the
Land, Lessor Improvements and Appurtenant Rights, duly executed by
Seller and appropriately notarized for recording;
(2) A Memorandum of Purchase Agreement, appropriately
completed and duly executed by Lessee and Lessor and appropriately
notarized for recording;
(3) Evidence that the Assignment of Lease, the Lessor Deed of
Trust, the Lessor/Lessee Deed of Trust, the deed, the Memorandum of
Lease Agreement and the Memorandum of Purchase Agreement have been or
will be properly recorded in the Official Records of Santa Xxxx County,
California;
(4) An extended coverage owner's policy or binder of title
insurance (or a commitment therefor) for the Property insuring Lessor's
fee interest in the Property
3.01-2
92
(subject to such exceptions as Agent may approve), in such amounts and
with such endorsements as Agent may reasonably require, issued by
Chicago Title Insurance Company or another title insurer acceptable to
Agent;
(5) An extended coverage lender's policy of title insurance
(or a commitment therefor) for the Property insuring the validity and
priority of the Lease Agreement (subject to such exceptions as Agent
may approve), in such amounts and with such endorsements as Agent may
reasonably require, issued by Chicago Title Insurance Company or
another title insurer acceptable to Agent;
(6) An extended coverage lender's policy of title insurance
(or a commitment therefor) for the Property insuring the validity and
priority of the Lessor Deed of Trust (subject to such exceptions as
Agent may approve), in such amounts and with such endorsements as Agent
may reasonably require, issued by Chicago Title Insurance Company or
another title insurer acceptable to Agent;
(7) Uniform Commercial Code financing statements and fixture
filings (appropriately completed and executed) for filing in such
jurisdictions as Agent may request to perfect the Liens granted to
Lessor and Agent in the Lessee Security Documents, the Lessor Security
Agreement and the other Operative Documents;
(8) Uniform Commercial Code search certificates from the
jurisdictions in which Uniform Commercial Code financing statements are
to be filed pursuant to item D(8) above reflecting no other financing
statements or filings which evidence Liens of other Persons in the
Collateral which are prior to the Liens granted to Lessor and Agent in
the Lessee Security Documents, the Lessor Security Agreement and the
other Operative Documents, except for any such prior Liens (a) which
are expressly permitted by the Operative Documents to be prior or (b)
for which Agent has received a termination statement pursuant to item
D(9) above.
E. OPINIONS.
(1) A favorable written opinion of Wilson, Sonsini, Xxxxxxxx &
Xxxxxx, counsel to Lessee, dated the Closing Date, addressed to Lessor
and Agent, for the benefit of Lessor, Agent and the Participants, and
covering such legal matters as Agent may reasonably request and
otherwise in form and substance satisfactory to Agent.
F. OTHER ITEMS.
(1) A duly completed and timely delivered Acquisition Request,
duly executed by Lessee;
(2) A Closing Date Appraisal for the Property, dated as of a
recent date prior to the Closing Date, appraising the Property at not
less than the Acquisition Price;
3.01-3
93
(3) An Expiration Date Appraisal for the Property, dated as of
a recent date prior to the Closing Date, appraising the Property at not
less than the Total Commitment;
(4) An ALTA/ACSM survey of the Property (a) prepared and dated
not more than two (2) months prior to the Closing Date by a registered
surveyor reasonably satisfactory to Agent, (b) certified as correct and
as (i) having been made in accordance with the most recent standards
for "Minimum Standard Detail Requirements for ALTA/ACSM Land Title
Surveys," jointly established and adopted by ALTA and ACSM, and (ii)
meeting the accuracy requirements of a Class A survey (as defined
therein) and including items 2-4, 6, 7(a), 7(b), 7(c), 8-10 and 13 of
Table A thereof, and (c) disclosing, among other things, (i) the
location of the perimeter of the Property by courses and distances,
(ii) all easements and rights-of-way, (iii) the lines of the street
abutting the Property and the width thereof, (iv) encroachments, if
any, and the extent thereof in feet and inches upon the Property, and
(v) all boundary and lot lines, and all other matters that would be
disclosed by inspection of the Property and the public records;
(5) Environmental reports and assessments of the Property
satisfactory to Agent issued by environmental consultants acceptable to
Agent with respect to the Property (collectively, the "Environmental
Reports");
(6) A copy of the Fixed Price Remediation Agreement, the
Escrow Agreement and the Water Supply Agreement, each duly executed by
the parties thereto, together with a Consent to Assignment of
Remediation Agreements, duly executed by Seller and Remediator, in the
form attached as Exhibit B to the Assignment of Remediation Agreements;
(7) Except as otherwise provided pursuant to Item F.(7) below,
certificates of insurance evidencing the insurance Lessee is required
to maintain pursuant to Paragraph 3.03 of the Lease Agreement;
(8) Binders or similar commitments for the issuance of
insurance with respect to the insurance that the Remediator is required
to carry and maintain pursuant to the Fixed Price Remediation
Agreement, in form and substance satisfactory to Lessor;
(9) The Disclosure Letter;
(10) A certificate of the Chief Financial Officer of Lessee,
addressed to Lessor and Agent and dated the Closing Date, certifying
that:
(a) The representations and warranties set forth in
Paragraph 4.01 of the Participation Agreement and in the other
Operative Documents are true and correct in all material
respects as of such date (except for such representations and
warranties made as of a specified date, which shall be true as
of such date);
(b) No Default has occurred and is continuing as of
such date; and
3.01-4
94
(c) All of the Operative Documents are in full force
and effect on such date.
(11) All fees and expenses payable to the Lessor Parties and
demanded by the Lessor Parties to be paid on or prior to the Closing
Date (including the Agent's Structuring Fee); and
(12) All fees and expenses of Lessor's and Agent's counsels
and demanded by Agent to be paid on or prior to the Closing Date.
3.01-5
95
SCHEDULE 4.01(q)
SUBSIDIARIES
See Disclosure Letter
4.01(q)-1
96
SCHEDULE 5.02(c)
INVESTMENT POLICY
See Disclosure Letter
5.02(e)-1
97
EXHIBIT A
LAND
A-1
98
EXHIBIT B
LEASE AGREEMENT
X-0
00
XXXXXXX X
XXXXXXXX AGREEMENT
C-1
100
EXHIBIT D
ACQUISITION REQUEST
[Date]
SELCO Service Corporation
c/o KeyBank National Association
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
1. Reference is made to that certain Participation Agreement, dated as
of June 30, 1999 (the "Participation Agreement"), among Silicon Valley Group,
Inc. ("Lessee"), SELCO Service Corporation ("Lessor"), the financial
institutions listed in Schedule I to the Participation Agreement (the
"Participants") and KeyBank National Association, as agent for the Participants
(in such capacity, "Agent"). Unless otherwise indicated, all terms defined in
the Participation Agreement have the same respective meanings when used herein.
2. Pursuant to Paragraph 2.03 of the Participation Agreement, Lessee
hereby irrevocably requests Lessor to make the Acquisition Advance as follows:
(a) The Acquisition Advance shall be in the aggregate amount
of $________; and
(b) The date of the Acquisition Advance shall be ____________,
____ (the "Closing Date").
3. $_________ of the Acquisition Advance will be used to pay the
Acquisition Price of the Property.
4. $________ of the Acquisition Advance will be used to pay the costs
and expenses set forth in Attachment 1 hereto. All such costs and expenses are
Permitted Transaction Expenses.
5. Lessee hereby certifies to the Lessor Parties that, on the date of
this Acquisition Request and after giving effect to the Acquisition Advance:
(a) The representations and warranties of Lessee set forth in
Paragraph 4.01 of the Participation Agreement and in the other
Operative Documents are true and correct in all material respects as if
made on such date (except for representations and warranties expressly
made as of a specified date, which shall be true as of such date);
(b) No Default has occurred and is continuing; and
(c) All of the Operative Documents are in full force and
effect on such date.
D-1
101
5. Please disburse the proceeds of the Acquisition Advance to
---------------------------------------------------.
IN WITNESS WHEREOF, Lessee has executed this Acquisition Request on the
date set forth above.
SILICON VALLEY GROUP, INC.
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
D-2
102
EXHIBIT E
LEASE EXTENSION REQUEST
[Date]
SELCO Service Corporation
c/o KeyBank National Association
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
1. Reference is made to that certain Participation Agreement, dated as
of June 30, 1999 (the "Participation Agreement"), among Silicon Valley Group,
Inc. ("Lessee"), SELCO Service Corporation ("Lessor"), the financial
institutions listed in Schedule I to the Participation Agreement (the
"Participants") and KeyBank National Association, as agent for the Participants
(in such capacity, "Agent"). Unless otherwise indicated, all terms defined in
the Participation Agreement have the same respective meanings when used herein.
2. Pursuant to Paragraph 2.09 of the Participation Agreement, Lessee
hereby irrevocably requests Lessor to extend (and the Participants to consent to
such extension) the Term of the Lease Agreement for an additional one (1) year
by extending the current Scheduled Expiration Date from [__________] to
[__________].
3. Lessee hereby certifies to the Lessor Parties that, on the date of
this Lease Extension Request and after giving effect to the extension requested
hereby:
(a) The representations and warranties of Lessee set forth in
Paragraph 4.01 of the Participation Agreement and in the other
Operative Documents are true and correct in all material respects as if
made on such date (except for representations and warranties expressly
made as of a specified date, which shall be true as of such date);
(b) No Default has occurred and is continuing; and
(c) All of the Operative Documents are in full force and
effect on such date.
E-1
103
IN WITNESS WHEREOF, Lessee has executed this Lease Extension Request on
the date set forth above.
SILICON VALLEY GROUP, INC.
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
CONSENT
The undersigned hereby consents to the extension of the Scheduled
Expiration Date requested above upon the terms set forth in the attachment
hereto.
----------------------------------------
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Date:
-----------------------------------
X-0
000
XXXXXXX X
XXXX COLLATERAL AGREEMENT
F-1
105
EXHIBIT G
ASSIGNMENT OF LEASE
G-1
106
EXHIBIT H
LESSOR DEED OF TRUST
H-1
107
EXHIBIT I
LESSOR SECURITY AGREEMENT
I-1
108
EXHIBIT J
LESSOR/LESSEE DEED OF TRUST
J-1
109
EXHIBIT K
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT, dated as of the date set forth at the top of
Attachment 1 hereto, by and among:
(1) The party designated under item A of Attachment I hereto
as the Assignor Participant ("Assignor Participant"); and
(2) Each party designated under item B of Attachment I hereto
as an Assignee Participant (individually, an "Assignee Participant").
RECITALS
A. Assignor Participant is one of the "Participants" in a Participation
Agreement dated as of June 30, 1999, among Silicon Valley Group, Inc.
("Lessee"), SELCO Service Corporation ("Lessor"), Assignor Participant and the
other institutions parties thereto as "Participants" (collectively, the
"Participants") and KeyBank National Association, as agent for the Participants
(in such capacity, "Agent"). (Such Participation Agreement, as amended,
supplemented or otherwise modified in accordance with its terms from time to
time to be referred to herein as the "Participation Agreement").
B. Assignor Participant wishes to sell, and each Assignee Participant
wishes to purchase, all or a portion of Assignor Participant's rights under the
Participation Agreement pursuant to Subparagraph 7.05(b) of the Participation
Agreement.
AGREEMENT
Now, therefore, the parties hereto hereby agree as follows:
1. Definitions. Except as otherwise defined in this Assignment
Agreement, all capitalized terms used herein and defined in the Participation
Agreement have the respective meanings given to those terms in the Participation
Agreement.
2. Sale and Assignment. Subject to the terms and conditions of this
Assignment Agreement, Assignor Participant hereby agrees to sell, assign and
delegate to each Assignee Participant and each Assignee Participant hereby
agrees to purchase, accept and assume the rights, obligations and duties of a
Participant under the Participation Agreement and the other Operative Documents
equal to the Tranche A Percentage, Tranche B Percentage and Proportionate Share
set forth under the captions "Tranche Percentages and Proportionate Shares
Assigned" opposite such Assignee Participant's name on Part A of Attachment I
hereto. Such sale, assignment and delegation shall become effective on the date
designated in Part C of
K-1
110
Attachment I hereto (the "Assignment Effective Date"), which date shall be,
unless Agent shall otherwise consent, at least five (5) Business Days after the
date following the date counterparts of this Assignment Agreement are delivered
to Agent in accordance with Paragraph 3 hereof.
3. Assignment Effective Notice. Upon (a) receipt by Agent of five (5)
counterparts of this Assignment Agreement (to each of which is attached a fully
completed Attachment 1), each of which has been executed by Assignor Participant
and each Assignee Participant (and, to the extent required by clause (i) of
Subparagraph 7.05(b) of the Participation Agreement, by Lessor, Lessee and
Agent) and (b) payment to Agent of the registration and processing fee specified
in clause (iii) of Subparagraph 7.05(b) of the Participation Agreement, Agent
will transmit to Lessor, Lessee, Assignor Participant and each Assignee
Participant an Assignment Effective Notice substantially in the form of
Attachment 2 hereto, fully completed (an "Assignment Effective Notice").
4. Assignment Effective Date. At or before 12:00 noon (local time of
Assignor Participant) on the Assignment Effective Date, each Assignee
Participant shall pay to Assignor Participant, in immediately available or same
day funds, an amount equal to the purchase price, as agreed between Assignor
Participant and such Assignee Participant (the "Assignment Purchase Price"), for
the respective Tranche A Percentage, Tranche B Percentage and Proportionate
Share purchased by such Assignee Participant hereunder. Effective upon receipt
by Assignor Participant of the Assignment Purchase Price payable by each
Assignee Participant, the sale, assignment and delegation to such Assignee
Participant of such Proportionate Share as described in Paragraph 2 hereof shall
become effective.
5. Payments After the Assignment Effective Date. Assignor Participant
and each Assignee Participant hereby agree that Agent shall, and hereby
authorize and direct Agent to, allocate amounts payable under the Participation
Agreement and the other Operative Documents as follows:
(a) All payments applied to reduce the Outstanding Lease
Amount after the Assignment Effective Date with respect to each Tranche
A Percentage, Tranche B Percentage and Proportionate Share assigned to
an Assignee Participant pursuant to this Assignment Agreement shall be
payable to such Assignee Participant.
(b) All Base Rent, interest, fees and other amounts accrued
after the Assignment Effective Date with respect to each Tranche A
Percentage, Tranche B Percentage and Proportionate Share assigned to an
Assignee Participant pursuant to this Assignment Agreement shall be
payable to such Assignee Participant.
Assignor Participant and each Assignee Participant shall make any separate
arrangements between themselves which they deem appropriate with respect to
payments between them of amounts paid under the Operative Documents on account
of the Tranche A Percentage, Tranche B Percentage and Proportionate Share
assigned to such Assignee Participant, and neither Agent nor Lessee shall have
any responsibility to effect or carry out such separate arrangements.
K-2
111
6. Delivery of Copies of Operative Documents. Concurrently with the
execution and delivery hereof, Assignor Participant will provide to each
Assignee Participant (if it is not already a party to the Participation
Agreement) conformed copies of all documents delivered to Assignor Participant
on or prior to the Closing Date in satisfaction of the conditions precedent set
forth in the Participation Agreement.
7. Further Assurances. Each of the parties to this Assignment Agreement
agrees that at any time and from time to time upon the written request of any
other party, it will execute and deliver such further documents and do such
further acts and things as such other party may reasonably request in order to
effect the purposes of this Assignment Agreement.
8. Further Representations, Warranties and Covenants. Assignor
Participant and each Assignee Participant further represent and warrant to and
covenant with each other, Lessor, Agent and the other Participants as follows:
(a) Other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned hereby free
and clear of any adverse claim, Assignor Participant makes no
representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in
connection with the Participation Agreement or the other Operative
Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Participation Agreement or the
other Operative Documents furnished or the Collateral or any security
interest therein.
(b) Assignor Participant makes no representation or warranty
and assumes no responsibility with respect to the financial condition
of Lessee or any of its obligations under the Participation Agreement
or any other Operative Documents.
(c) Each Assignee Participant confirms that it has received a
copy of the Participation Agreement and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment Agreement.
(d) Each Assignee Participant will, independently and without
reliance upon Lessor, Agent, Assignor Participant or any other
Participant and based upon such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Participation Agreement and
the other Operative Documents.
(e) Each Assignee Participant appoints and authorizes Agent to
take such action as Agent on its behalf and to exercise such powers
under the Participation Agreement and the other Operative Documents as
Agent is authorized to exercise by the terms thereof, together with
such powers as are reasonably incidental thereto, all in accordance
with Section 6 of the Participation Agreement.
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112
(f) Each Assignee Participant (i) affirms that each of the
representations and warranties set forth in Paragraph 4.03 of the
Participation Agreement is true and correct with respect to such
Participant and (ii) agrees that it will perform in accordance with
their terms all of the obligations which by the terms of the
Participation Agreement and the other Operative Documents are required
to be performed by it as a Participant.
(g) Each Assignee Participant represents and warrants that, as
of the date hereof, it would not have any basis for demanding any
payment under Subparagraph 2.12(c) or Subparagraph 2.12(d) of the
Participation Agreement or, to its knowledge, under Subparagraph
2.13(a) of the Participation Agreement.
(h) Part B of Attachment 1 hereto sets forth administrative
information with respect to each Assignee Participant.
9. Effect of this Assignment Agreement. On and after the Assignment
Effective Date, (a) each Assignee Participant shall be a Participant with a
Tranche A Percentage, Tranche B Percentage and Proportionate Share as set forth
under the caption "Tranche Percentages and Proportionate Share After Assignment"
opposite such Assignee Participant's name in Part A of Attachment 1 hereto and
shall have the rights, duties and obligations of such a Participant under the
Participation Agreement and the other Operative Documents and (b) Assignor
Participant shall be a Participant with a Tranche A Percentage, Tranche B
Percentage and Proportionate Share as set forth under the caption "Tranche
Percentages and Proportionate Share After Assignment" opposite Assignor
Participant's name in Part A of Attachment 1 hereto and shall have the rights,
duties and obligations of such a Participant under the Participation Agreement
and the other Operative Documents, or, if the Proportionate Share of Assignor
Participant has been reduced to zero, Assignor Participant shall cease to be a
Participant and shall have no further obligation to fund any portion of the
Acquisition Advance.
10. Miscellaneous. This Assignment Agreement shall be governed by, and
construed in accordance with, the laws of the State of California. Paragraph
headings in this Assignment Agreement are for convenience of reference only and
are not part of the substance hereof.
K-4
113
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
Agreement to be executed by their respective duly authorized officers as of the
date set forth in Attachment 1 hereto.
, as
-------------------------------------------
Assignor Participant
By:
----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
, as an
------------------------------------
Assignor Participant
By:
----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
, as an
------------------------------------
Assignor Participant
By:
----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
, as an
------------------------------------
Assignor Participant
By:
----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
K-5
114
CONSENTED TO AND ACKNOWLEDGED BY:
----------------------------------------
as Lessee
By:
-------------------------------------
Name:
----------------------------
Title:
---------------------------
----------------------------------------
as Agent
By:
-------------------------------------
Name:
----------------------------
Title:
---------------------------
----------------------------------------
As Lessor
By:
-------------------------------------
Name:
----------------------------
Title:
---------------------------
ACCEPTED FOR RECORDATION IN REGISTER:
----------------------------------------
As Agent
By:
-------------------------------------
Name:
----------------------------
Title:
---------------------------
K-6
115
ATTACHMENT 1
TO ASSIGNMENT AGREEMENT
PART A TRANCHE PERCENTAGES AND PROPORTIONATE SHARES
Tranche Percentages and
Proportionate Shares After Assignment
Tranche A Tranche B Proportionate Tranche A Tranche B Proportionate
Percentage Percentage Share Percentage Percentage Share
------------- ----------- -------------- ------------- ------------ --------------
Assignor Participant:
--------- --. -------% --. -------% --. -------% --. -------% --. -------% --. --------%
--------- --. -------% --. -------% --. -------% --. -------% --. -------% --. --------%
--------- --. -------% --. -------% --. -------% --. -------% --. -------% --. --------%
Assignee Participants:
--------- --. -------% --. -------% --. -------% --. -------% --. -------% --. --------%
--------- --. -------% --. -------% --. -------% --. -------% --. -------% --. --------%
--------- --. -------% --. -------% --. -------% --. -------% --. -------% --. --------%
--------- --. -------% --. -------% --. -------% --. -------% --. -------% --. --------%
K(1)-1
116
PART B
[Assignee Participant]
-----------------------------
Applicable Participating Office:
-----------------------------
Address for notices:
Telephone No:
---------
Facsimile No:
---------
Wiring Instructions:
[Assignee Participant]
-----------------------------
Applicable Participating Office:
-----------------------------
Address for notices:
Telephone No:
---------
Facsimile No:
---------
Wiring Instructions:
K(1)-2
117
PART C
ASSIGNMENT EFFECTIVE DATE ________, ____
K(1)-3
118
ATTACHMENT 2
TO ASSIGNMENT AGREEMENT
FORM OF
ASSIGNMENT EFFECTIVE NOTICE
Reference is made to the Participation Agreement, dated as of June 30,
1999, among Silicon Valley Group, Inc. ("Lessee"), SELCO Service Corporation
("Lessor"), the financial institutions parties thereto as "Participants" (the
"Participants") and KeyBank National Association, as agent for the Participants
(in such capacity, "Agent"). Agent hereby acknowledges receipt of five executed
counterparts of a completed Assignment Agreement, a copy of which is attached
hereto. [Note: Attach copy of Assignment Agreement.] Terms defined in such
Assignment Agreement are used herein as therein defined.
1. Pursuant to such Assignment Agreement, you are advised that the
Assignment Effective Date will be____________.
2. Pursuant to such Assignment Agreement, each Assignee Participant is
required to pay its Purchase Price to Assignor Participant at or before 12:00
Noon on the Assignment Effective Date in immediately available funds.
Very truly yours,
KeyBank National Association,
as Agent
By:
--------------------------------
Name:
----------------------------
Title:
---------------------------
K(2)-1
119
EXHIBIT L
SYNTHETIC LEASE SWAP AGREEMENT
K(2)-1
120
EXHIBIT M
ASSIGNMENT OF REMEDIATION AGREEMENTS
THIS ASSIGNMENT OF REMEDIATION AGREEMENTS (this "Agreement"
herein), dated as of June 30, 1999, is executed by
(1) SILICON VALLEY GROUP, INC., a Delaware corporation
("Lessee"),
in favor of
(2) SELCO SERVICE CORPORATION, an Ohio corporation doing
business in California as Ohio SELCO Service Corporation ("Lessor").
RECITALS
A. Lessee has requested Lessor and the financial institutions which are
"Participants" under the Participation Agreement referred to in Recital B below
(such financial institutions to be referred to collectively as the
"Participants") to provide to Lessee a lease facility pursuant to which:
(1) Lessor would (a) purchase certain property, (b) lease such
property to Lessee and (c) grant to Lessee the right to purchase such
property; and
(2) The Participants would participate in such lease facility
by (a) funding the advance to be made by Lessor to purchase such
property and (b) acquiring participation interests in the rental and
certain other payments to be made by Lessee.
B. Pursuant to a Participation Agreement dated of even date herewith
(the "Participation Agreement") among Lessee, Lessor, the Participants and
KeyBank National Association, as agent for the Participants (in such capacity,
"Agent"), Lessor and the Participants have agreed to provide such lease facility
upon the terms and subject to the conditions set forth therein, including
without limitation the execution and delivery of this Agreement setting forth
the terms for the purchase of the Property by Lessee from Lessor.
C. One of the conditions to the effectiveness of the Participation
Agreement is the execution and delivery of this Agreement by the parties hereto
setting forth the terms of the assignment by Lessee to Lessor of certain
documents, instruments and agreements related to the remediation of the
Property.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the
mutual covenants herein contained, the parties hereto hereby agree as follows:
121
SECTION 1. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this
Agreement or any other Operative Document, each term set forth in Schedule 1.01
to the Participation Agreement, when used in this Agreement or any other
Operative Document, shall have the respective meaning given to that term in such
Schedule 1.01 or in the provision of this Agreement or other document,
instrument or agreement referenced in such Schedule 1.01.
1.02. Rules of Construction. Unless otherwise indicated in
this Agreement or any other Operative Document, the rules of construction set
forth in Schedule 1.02 to the Participation Agreement shall apply to this
Agreement and the other Operative Documents.
SECTION 2. ASSIGNMENT.
2.01. Assignment. Subject to Paragraph 2.02 hereof, Lessee
hereby assigns to Lessor all of Lessee's right, title and interest in, to and
under all documents, instruments and agreements between Lessee and any other
Person relating to the remediation of the Property and/or use of the groundwater
on the Property for a water supply (including, without limitation, the Fixed
Price Remediation Agreement, the Escrow Agreement and the Water Supply
Agreement) (collectively, the "Remediation Agreements") and all future
Remediation Agreements which may be entered into by Lessee and/or issued for the
benefit of Lessee prior to the termination of this Agreement. Upon execution or
receipt of any new Remediation Agreement, Lessee shall promptly notify Lessor as
to the existence of such Remediation Agreement. Upon Lessor's request, Lessee
shall provide Lessor with copies of the Remediation Agreement.
2.02. Absolute Assignment. This Agreement constitutes a
present and absolute assignment to Lessor; provided, however, that (a) Lessor
may not enforce the terms of the Remediation Agreement unless and until an Event
of Default occurs and (b) so long as no Event of Default has occurred, Lessee
shall have the right to enforce the terms and exercise the rights granted to
Lessee pursuant to the Remediation Agreements for the benefit of Lessee and
Lessor provided that such exercise is not otherwise inconsistent with the terms
of this Agreement and the other Operative Documents. Upon the occurrence of any
Event of Default, Lessor may, in its sole discretion, give notice to any Person
referred to in the Remediation Agreement or any other party to a Remediation
Agreement of its intent to enforce the rights of Lessee under the Remediation
Agreements and may initiate or participate in any legal proceedings respecting
the enforcement of said rights. Lessee acknowledges that, by accepting this
assignment, Lessor does not assume any of Lessee's obligations under the
Remediation Agreements.
2.03. Seller's and Remediator's Consent. In connection with
the execution and delivery to Lessor of this Agreement, Lessee shall obtain and
deliver to Lessor consents from each of Seller and Remediator in the form
attached hereto as Exhibit A with respect to the assignment by Lessee of all of
its right, title and interest in and to the Fixed Price Remediation Agreement,
the Escrow Agreement and the Water Supply Agreement. Upon Lessor's request,
Lessee shall obtain and provide to Lessor a Consent to Assignment for any new
Remediation Agreements entered into by Lessee after the date hereof which Lessor
determines in its sole
3
122
discretion is material to the remediation of the Property.
SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF LESSEE.
3.01. Representations and Warranties. Lessee represents and
warrants to Lessor that (a) all Remediation Agreements entered into by Lessee
are in full force and effect and are enforceable in accordance with their terms
(subject to applicable laws regarding insolvency and principles of equity) and,
to the best of Lessee's knowledge, no default, or event which would constitute a
default after notice or the passage of time, or both, exists with respect to
said Remediation Agreements; (b) all copies of the Remediation Agreements
delivered to Lessor are complete and correct; and (c) Lessee has not assigned
any of its rights under the Remediation Agreements, except as otherwise provided
herein or in the other Operative Documents.
3.02. Covenants. Lessee agrees (a) to pay and perform all
obligations of Lessee under the Remediation Agreements; (b) to enforce the
payment and performance of all obligations of any other Person under the
Remediation Agreements; (c) not to amend or modify the Remediation Agreements
(including, without limitation, the Fixed Price Remediation Agreement, the
Escrow Agreement and the Water Supply Agreement), not exercise its rights under
Paragraph 1.C. of the Fixed Price Remediation Agreement with respect to the
placement of any deed or use restrictions on the Property, nor enter into any
future Remediation Agreements without Lessor's prior written approval which
shall not be unreasonably withheld, except as otherwise may be permitted by the
Operative Documents; and (d) not to further assign, for security or any other
purposes, its rights under the Remediation Agreements without Lessor's prior
written approval.
SECTION 4. MISCELLANEOUS.
4.01. Notices. Except as otherwise specified herein, all
notices, requests, demands, consents, instructions or other communications to or
upon Lessee or Lessor under this Agreement shall be given as provided in
Subparagraph 2.02(c) and Paragraph 7.01 of the Participation Agreement.
4.02. Waivers; Amendments. Any term, covenant, agreement or
condition of this Agreement may be amended or waived only as provided in the
Participation Agreement. No failure or delay by any Lessor Party in exercising
any right hereunder shall operate as a waiver thereof or of any other right nor
shall any single or partial exercise of any such right preclude any other
further exercise thereof or of any other right. Unless otherwise specified in
any such waiver or consent, a waiver or consent given hereunder shall be
effective only in the specific instance and for the specific purpose for which
given.
4.03. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Lessor Parties and Lessee and their
permitted successors and assigns; provided, however, that the Lessor Parties and
Lessee shall not sell, assign or delegate their respective rights and
obligations hereunder except as provided in the Participation Agreement.
4.04. No Third Party Rights. Nothing expressed in or to be
implied from this
4
123
Agreement is intended to give, or shall be construed to give, any Person, other
than the Lessor Parties and Lessee and their permitted successors and assigns,
any benefit or legal or equitable right, remedy or claim under or by virtue of
this Agreement or under or by virtue of any provision herein.
4.05. Partial Invalidity. If at any time any provision of this
Agreement is or becomes illegal, invalid or unenforceable in any respect under
the law or any jurisdiction, neither the legality, validity or enforceability of
the remaining provisions of this Agreement nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
4.06. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California without
reference to conflicts of law rules.
4.07. Termination. After the expiration of the Lease Agreement
and the satisfaction in full of all Lessee Obligations, the assignment of the
Remediation Agreements set forth herein shall terminate, Lessor shall re-assign
to Lessee its interests in such Remediation Agreements and this Agreement shall
terminate.
[The signature page follows.]
5
124
IN WITNESS WHEREOF, Lessee has caused this Agreement to be
executed as of the day and year first above written.
LESSEE: SILICON VALLEY GROUP, INC.
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
6
125
EXHIBIT A
CONSENT TO ASSIGNMENT
1. Reference is made to (a) the property located at 000 Xxxxx
Xxxxxxx Xxxx, as more particularly described in Exhibit A to the Participation
Agreement (the "Property") and (b) the agreement[s] described in Attachment 1
hereto.
2. Silicon Valley Group, Inc. ("Lessee") has notified the
undersigned that, pursuant to an Assignment of Remediation Agreements dated as
of June 30, 1999 between Lessee and SELCO Service Corporation, an Ohio
corporation doing business in California as Ohio SELCO Service Corporation
("Lessor") (the "Assignment"), Lessee has assigned to Lessor the agreement[s]
described in Attachment 1 hereto and all future documents, instruments and
agreements relating to the remediation of the Property (collectively, the
"Remediation Agreements").
3. The undersigned hereby consents to the Assignment and
acknowledges and agrees as follows for the benefit of Lessor that:
(a) Pursuant to the Assignment, Lessee may not amend or modify
the Remediation Agreements (including, without limitation, the
agreement[s] described in Attachment 1 hereto), [not exercise its
rights under Paragraph 1.C. of the Fixed Price Remediation Agreement
with respect to the placement of any deed or use restrictions on the
Property,] nor enter into any future Remediation Agreements without
Lessor's prior written approval which shall not be unreasonably
withheld; and
(b) If requested by Lessor in the exercise of Lessor's rights
under the Assignment, the undersigned shall continue to perform its
obligations under the Remediation Agreements in accordance with the
terms thereof. The undersigned acknowledges that Lessor may have no
means of discovering when or if the undersigned claims a default under
the Remediation Agreements and agrees that it will give Lessor prior
written notice of any default claimed by the undersigned under the
Remediation Agreements. Said notice shall set forth a description of
the default and a request to Lessor to cure the same within thirty (30)
days. Said notice shall be deemed served upon delivery or, if mailed,
upon the first to occur of receipt or the expiration of seventy-two
(72) hours after deposit in United States Postal Service certified
mail, postage prepaid and addressed to the address of Lessor appearing
below. No termination of the Remediation Agreements by the undersigned
shall be binding upon Lessor unless Lessor has received such notice and
has failed to cure the described default within said thirty (30) days.
The undersigned further acknowledges that, unless and until Lessor
elects to exercise its rights under the Assignment and requests the
undersigned's performance under the Remediation Agreements in writing,
Lessor neither undertakes nor assumes any obligations or liability
under the Remediation Agreements. Upon any such election, Lessor agrees
to be bound by the terms and conditions of the Remediation Agreements
to the same extent as Lessee (including, without limitation, all
obligations and liabilities of Lessee arising prior to such
L-1
126
election as to which the undersigned has notified Lessor in writing
prior to such election that such obligations or liabilities have yet to
be performed by Lessee).
L-2
127
IN WITNESS WHEREOF, the undersigned has executed this Consent on this
___________ day of___________, ____.
[________________________________]
By:
________________________________
Name:
___________________________
Title:
__________________________
Signatory's Address:
[__________________________]
[__________________________]
[__________________________]
[__________________________]
Lessor's Address:
SELCO Service Corporation
c/o KeyBank National Association
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
L-3
128
EXECUTION VERSION
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PARTICIPATION AGREEMENT
AMONG
SILICON VALLEY GROUP, INC.
AND
SELCO SERVICE CORPORATION
An Ohio corporation during business in California
Ohio SELCO Service Corporation
AND
THE PARTICIPANTS NAMED HEREIN
AND
KEYBANK NATIONAL ASSOCIATION,
AS AGENT FOR THE PARTICIPANTS
JUNE 30, 1999
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
129
TABLE OF CONTENTS
PAGE
SECTION 1.INTERPRETATION....................................................................................... 1
1.01. Definitions........................................................................................... 1
1.02. Rules of Interpretation............................................................................... 2
SECTION 0.XXXXX FACILITY....................................................................................... 2
2.01. Acquisition, Lease, Amount Limitations, Etc........................................................... 2
2.02. Participation Agreement............................................................................... 2
2.03. Acquisition Request................................................................................... 4
2.04. Agent Fees............................................................................................ 4
2.05. Funding of Acquisition Advance........................................................................ 4
2.06. Sharing of Payments................................................................................... 4
2.07. Other Payment Terms................................................................................... 6
2.08. Commitment Termination................................................................................ 8
2.09. Lease Extensions...................................................................................... 8
2.10. Nature of the Transaction............................................................................. 8
2.11. Security.............................................................................................. 10
2.12. Change of Circumstances............................................................................... 11
2.13. Taxes on Payments..................................................................................... 14
2.14. Funding Loss Indemnification.......................................................................... 16
2.15. Replacement of Participants........................................................................... 16
2.16. Limitation on Collection of Costs..................................................................... 16
SECTION 3.CONDITIONS PRECEDENT................................................................................. 17
3.01. Acquisition Advance................................................................................... 17
3.02. Other Conditions Precedent............................................................................ 17
3.03. Covenant to Deliver................................................................................... 17
SECTION 4.REPRESENTATIONS AND WARRANTIES....................................................................... 17
4.01. Lessee's Representations and Warranties............................................................... 17
4.02. Lessor's Representations and Warranties............................................................... 23
4.03. Participants' Representations and Warranties.......................................................... 25
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130
TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 5.COVENANTS............................................................................................ 26
5.01. Lessee's Affirmative Covenants........................................................................ 26
5.02. Lessee's Negative Covenants........................................................................... 29
5.03. Lessee's Financial Covenants.......................................................................... 37
5.04. Lessor's Covenants.................................................................................... 39
5.05. Participants' Covenants............................................................................... 39
SECTION 6.LESSOR, AGENT AND THEIR RELATIONS WITH PARTICIPANTS.................................................. 39
6.01. Appointment of Agent.................................................................................. 39
6.02. Powers and Immunities................................................................................. 40
6.03. Reliance.............................................................................................. 40
6.04. Defaults.............................................................................................. 40
6.05. Indemnification....................................................................................... 41
6.06. Non-Reliance.......................................................................................... 41
6.07. Resignation or Removal of Agent....................................................................... 41
6.08. Authorization......................................................................................... 42
6.09. Lessor and Agent in their Individual Capacities....................................................... 42
SECTION 7.MISCELLANEOUS........................................................................................ 42
7.01. Notices............................................................................................... 42
7.02. Expenses.............................................................................................. 44
7.03. Indemnification....................................................................................... 44
7.04. Waivers; Amendments................................................................................... 45
7.05. Successors and Assigns................................................................................ 45
7.06. Setoff................................................................................................ 49
7.07. No Third Party Rights................................................................................. 49
7.08. Partial Invalidity.................................................................................... 49
7.09. JURY TRIAL............................................................................................ 49
7.10. Counterparts.......................................................................................... 49
7.11. No Joint Venture, Etc................................................................................. 50
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131
PAGE
7.12. Usury Savings Clause.................................................................................. 50
7.13. Confidentiality....................................................................................... 50
7.14. Governing Law......................................................................................... 50
SCHEDULES
I Participants
II Pricing Grid
1.01 Definitions
1.02 Rules of Interpretation
3.01 Conditions Precedent to Acquisition Advance
4.01(q) Subsidiaries
5.02(e) Investment Policy
EXHIBITS
--------
A Land (Recital A; Schedule 1.01))
B Lease Agreement (2.01(a))
C Purchase Agreement (2.01(a))
D Acquisition Request (2.03)
E Lease Extension Request (2.09)
F Cash Collateral Agreement (2.11(a))
G Assignment of Lease (2.11(b))
H Lessor Deed of Trust (2.11(b))
I Lessor Security Agreement (2.11(b))
J Lessor/Lessee Deed of Trust (2.11(c))
K Assignment Agreement (7.05(b))
L Synthetic Lease Swap Agreement (Schedule 3.01))
M Assignment of Remediation Agreements (2.11(a))
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