FIRST MODIFICATION AGREEMENT (LIVERMORE/PARCEL 6)
Exhibit 10.144
FIRST MODIFICATION AGREEMENT
(LIVERMORE/PARCEL 6)
(LIVERMORE/PARCEL 6)
This FIRST MODIFICATION AGREEMENT (LIVERMORE/PARCEL 6) (this “Amendment”), dated as of April
3, 2008 (the “Amendment Date”), is made by and between BNP PARIBAS LEASING CORPORATION (“BNPPLC”),
a Delaware corporation, and XXX RESEARCH CORPORATION (“LRC”), a Delaware corporation.
RECITALS
BNPPLC and LRC have executed a Common Definitions and Provisions Agreement (Livermore/Parcel
6) dated as of December 18, 2007 (the “Common Definitions and Provisions Agreement”), which by this
reference is incorporated into and made a part of this Amendment for all purposes. As used in this
Amendment, capitalized terms defined in the Common Definitions and Provisions Agreement and not
otherwise defined in this Amendment are intended to have the respective meanings assigned to them
in the Common Definitions and Provisions Agreement.
BNPPLC and LRC have also executed a Construction Agreement (Livermore/Parcel 6) dated as of
December 18, 2007 (the “Construction Agreement”) and a Lease Agreement dated as of
December 18, 2007 (the “Lease”). Pursuant to the Construction Agreement, BNPPLC has agreed to
provide funding for the construction of new Improvements. When the term of the Lease commences,
the Lease will cover the Land, which is described in Exhibit A to this Amendment, and all
Improvements on such Land.
BNPPLC and LRC have also executed an Agreement Regarding Purchase and Remarketing Options
(Livermore/Parcel 6) dated as of December 18, 2007 (the “Purchase Agreement”), pursuant to which
LRC may purchase or arrange for the purchase of the Property and BNPPLC may collect a Supplemental
Payment from LRC sufficient to cover all or a substantial portion of the Lease Balance not
otherwise repaid to BNPPLC from the proceeds of any sale of the Property.
BNPPLC and LRC have also executed a Closing Certificate and Agreement (Livermore/Parcel 6)
dated as of December 18, 2007 (the “Closing Certificate”), pursuant to which (among other things)
LRC made certain representations and warranties to BNPPLC regarding the Property and LRC itself to
induce BNPPLC to acquire the Property and to enter into the other Operative Documents referenced
above.
BNPPLC and LRC have also executed other agreements similar in scope and form to the Operative
Documents, but covering properties other than the Property, including (i) other agreements dated as
of December 18, 2007 which cover another tract of land in the City of Livermore, California
adjacent to the Land described in Exhibit A to this Amendment (the “Other
Livermore Documents”), and (ii) other agreements dated as of December 21, 2007,
which cover
four tracts of land in the City of Fremont, California (the “Fremont Documents”).
Contemporaneously with the execution and delivery of the Fremont Documents, BNPPLC entered into
various agreements (all of which were approved as to form by LRC) with ABN AMRO BANK, N.V. (“ABN”).
Such agreements between BNPPLC and ABN include a letter agreement (the “Reallocation Agreement”)
under which ABN may agree to become a Participant under and as defined in the Operative Documents;
subject, however, to conditions specified in the Reallocation Agreement. One of those conditions
is the modification of the Operative Documents and the Other Livermore Documents, in a manner
reasonably satisfactory to ABN, to include, to the extent applicable, changes conforming to the
revisions made to the Fremont Documents at the request of ABN’s counsel prior to the execution of
the Fremont Documents. In order to make such conforming revisions to the Operative Documents,
BNPPLC and LRC now desire to amend the Operative Documents, as more particularly provided below.
By a separate First Modification Agreement (Livermore/Parcel 7) dated as of the Amendment Date,
BNPPLC and LRC are also amending the Other Livermore Documents to make the same conforming
revisions.
In addition to the changes needed to conform the Operative Documents to the Fremont Documents
as described in the preceding paragraph, BNPPLC and LRC also desire to change the definitions of
“Pre-lease Collateral” and “Securities Accounts” in the Pledge Agreement to reflect a change in the
securities account number that will be used by the Intermediary to identify the securities account
pledged under the Pledge Agreement. By a separate agreement between BNPPLC, LRC and the
Intermediary, which is being executed contemporaneously with this Agreement, the Initial Control
Agreement is also being modified to reflect such change in the securities account number.
AGREEMENTS
In consideration of the premises and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1 Amendments to the Operative Documents.
(A) Modification of the Closing Certificate. The following subparagraph is inserted in
the Closing Certificate as a new subparagraph 4(C), and the existing subparagraph 4(C) of the
Closing Certificate is renumbered so that it becomes subparagraph 4(D):
(C) Modifications of the Participation Agreement.
After the execution of any Participation Agreement, so long as no
Event of Default has occurred and is continuing, BNPPLC will not
(without LRC’s prior approval) agree with Participants to amend the definitions of “Majority” or “Major Stakeholder” in the
Participation Agreement or subparagraph 6(A) or Paragraph 13 of
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the Participation Agreement; provided, however, this provision will not
be construed to preclude or limit BNPPLC’s right to make any
agreement with one or more Participants to take any action, or
refrain from taking any action, not otherwise prohibited by the
Operative Documents and permitted by the Participation Agreement.
(B) Modification of the Lease. The Lease is revised as follows:
(1) Correction on Page 2. The word “or” is inserted in between the phrases “from the
Prior Owner” and “as described in” in the second line of the paragraph immediately following
the description of the Real Property near the top of page 2 of the Lease.
(2) Subparagraph 3(B)(3). In the fourth bullet point of each of clauses (a) and (b) of
subparagraph 3(B)(3) of the Lease, the clause “upon which such period ends” is changed to
“upon which such installment becomes due”.
(3) Subparagraph 9(E). Subparagraph 9(E) of the Lease is amended and restated as
follows:
(E) LRC’s Obligation to Restore. Regardless of the
adequacy of any Remaining Proceeds available to LRC hereunder, if on
or after the Completion Date the Property is damaged by fire or
other casualty or less than all or substantially all of the Property
is taken by condemnation, LRC must promptly (and in any event, prior
to the Designated Sale Date) restore or improve the Property or the
remainder thereof to a condition that is safe and sightly and as
near to the same condition as existed prior to such event as is
possible and in any event to a value no less than the Lease Balance.
(4) Subparagraph 14(A)(3). In clause 3) of Subparagraph 14(A)(3)(c) of the Lease, the
phrase “LRC’s failure to perform LRC’s obligations under this Lease “ is changed to “the
early termination of this Lease “. Also, the last sentence of subparagraph 14(A)(3) of the
Lease is amended and restated as follows:
For purposes of this provision, “Maximum Remarketing Obligation” is
intended to mean the Maximum Remarketing Obligation (as defined in
the Purchase Agreement) and is intended
to be computed as of the date of any award of Lease Termination
Damages to BNPPLC as if such date was the Designated Sale Date.
First Modification Agreement (Livermore/Parcel 6) — Page 3
(5) Subparagraph 14(B). Subparagraph 14(B) of the Lease is amended and restated as
follows:
(B) Foreclosure Remedies. At any time after an Event of
Default, BNPPLC may pursue remedies described in Exhibit B,
regardless of whether the Event of Default is continuing, if LRC has
not already purchased the Property or caused an Applicable Purchaser
to purchase the Property pursuant to the Purchase Agreement.
Without limiting the foregoing, (i) BNPPLC will have the power and
authority, to the extent provided by law, after proper notice and
lapse of such time as may be required by law, to sell or arrange for
a nonjudicial sale to foreclose the deed of trust with power of
sale, lien and security interest granted in Exhibit B (the
“Deed of Trust”) for the recovery of the Lease Balance and any other
amounts owed by LRC under the Operative Documents, and (ii) BNPPLC,
in lieu of or in addition to exercising any power of sale granted in
Exhibit B, may proceed by a suit or suits in equity or at
law, whether for a judicial foreclosure or sale of the Property, or
against LRC for the Lease Balance and any other amounts owed by LRC
under the Operative Documents, or for the specific performance of
any covenant or agreement herein contained or in aid of the
execution of any power herein granted, or for the appointment of a
receiver pending any foreclosure or sale of the Property, or for the
enforcement of any other appropriate legal or equitable remedy.
(6) Exhibit B to the Lease. The title of Exhibit B to the Lease is changed from
“California Foreclosure Provisions” to “California Deed of Trust with Power of Sale, Lien
and Foreclosure Provisions”. Also, on the first page of Exhibit B to the Lease, the first
paragraph just under the heading, “Grant of Lien and Security Interest,” is amended and
restated as follows:
For and in consideration of the sum of Ten Dollars ($10.00) to
LRC in hand paid and other good and valuable consideration, in order
to secure the recovery of the Lease Balance by BNPPLC and the
payment and performance of all of the other obligations, covenants,
agreements and undertakings of LRC under this Lease, the Purchase
Agreement or other Operative Documents (in this
Exhibit called the “Secured Obligations”), LRC does hereby
irrevocably GRANT, BARGAIN, SELL, CONVEY, TRANSFER,
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ASSIGN and SET
OVER to First American Title Insurance Company (in this Exhibit
called the “Trustee”), IN TRUST WITH POWER OF SALE, for the benefit
of BNPPLC, the Land and all rights, titles and interests of any kind
whatsoever of LRC in and to the Land, together with (i) all the
buildings and other improvements now on or hereafter located
thereon; (ii) any equipment, fixture or other property whatsoever
now or hereafter attached or affixed to or installed in said
buildings and other improvements in a manner that causes it to be
part of, or integral and necessary to the operation of, the real
property, including, but not limited to, all heating, plumbing,
lighting, water heating, refrigerating, incinerating, ventilating
and air conditioning equipment, utility lines and equipment (whether
owned individually or jointly with others), sprinkler systems, fire
extinguishing apparatus and equipment, water tanks, engines,
machines, elevators, motors, cabinets, shades, blinds, partitions,
window screens, screen doors, storm windows, awnings, drapes, and
floor coverings, and all fixtures, accessions and appurtenances
thereto, and all renewals or replacements of or substitutions for
any of the foregoing, all of which are hereby declared to be
permanent fixtures and accessions to the freehold and part of the
realty conveyed herein as security for the obligations mentioned
hereinabove; (iii) all easements and rights of way now and at any
time hereafter used in connection with any of the foregoing property
or as a means of ingress to or egress from the Land or for utilities
to said property; (iv) all interests of LRC in and to any streets,
ways, alleys and/or strips of land adjoining said land or any part
thereof; (v) all rents, issues, profits, royalties, bonuses, income
and other benefits derived from or produced by the Land or
Improvements; (vi) all leases or subleases of the Land or
Improvements or any part thereof now or hereafter in effect,
including all security or other deposits, advance or prepaid rents,
and deposits or payments of similar nature; (vii) all options to
purchase or lease the Land or Improvements or any part thereof or
interest therein, and any greater estate in the Land or Improvements
now owned or hereafter acquired by LRC; (viii) all right, title,
estate and interest of every kind and nature, at law or in equity,
which LRC now has or may hereafter acquire in the Land or
Improvements; and (ix) all other claims and demands with respect to
the Land or Improvements or the Collateral (as hereinafter
defined), including all claims or demands to all proceeds of
all insurance now or hereafter in effect with respect to
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the Land,
Improvements or Collateral, all awards made for the taking by
condemnation or the power of eminent domain, or by any proceeding or
purchase in lieu thereof, of the Land, Improvements or Collateral,
or any part thereof, or any damage or injury thereto, all awards
resulting from a change of grade of streets, and all awards for
severance damages; and (vi) all rights, estates, powers and
privileges appurtenant or incident to the foregoing.
(C) Modification of the Common Definitions and Provisions Agreement. The Common
Definitions an Provisions Agreement is revised as follows:
(1) Definition of Participant. The definition of “Participant” in the Common
Definitions and Provisions Agreement is amended and restated as follows:
“Participant” means any Person other than BNPPLC that from time
to time, by executing the Participation Agreement or supplements as
contemplated therein, becomes a party to a Participation Agreement
and thereby agrees to participate in all or some of the risks and
rewards to BNPPLC of the Operative Documents; provided, however, no
such Person will qualify as a Participant for purposes of the
Operative Documents unless such Person is approved to be a
Participant by LRC. As of the Effective Date, there are no
Participants. However, LRC has approved ABN Amro Bank, N.V. and
Royal Bank of Scotland as banks who may become Participants. In
addition to ABN Amro Bank, N.V. and Royal Bank of Scotland, others
Persons approved by LRC may from time to time agree with BNPPLC to
share in the risks and rewards of the Operative Documents by
executing a new Participation Agreement or supplements to any
Participation Agreement. LRC will not unreasonably withhold or
delay any approval required for any prospective Participant which is
an Eligible Financial Institution. However, as to any prospective
Participant (other than ABN Amro Bank, N.V. or Royal Bank of
Scotland) that is not an Eligible Financial Institution, LRC may
withhold such approval in its sole discretion. Further, it is
understood that if giving such approval will increase LRC’s
liability for withholding taxes or other taxes not constituting
Excluded Taxes under tax laws or regulations then in effect, LRC may
reasonably refuse to give such approval.
(2) Definition of Participation Agreement. Prior to executing any new
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Participation
Agreement with ABN or Royal Bank of Scotland in the form attached to Common Definitions and
Provisions Agreement as Annex 4, BNPPLC may (as contemplated in the Reallocation
Agreement) modify such form by making changes that conform to the revisions which were made
at the request of ABN’s counsel (with LRC’s approval) to each of the four “Participation
Agreements” (as defined in the Fremont Documents) before those four Participation Agreements
were signed by BNPPLC and ABN.
(3) Definition of Purchase Agreement. In the definition of “Purchase Agreement” in the
Common Definitions and Provisions Agreement, the phrase “ as such Purchase Agreement may ...” is changed to “as such agreement may ...”.
(4) New Definition of Royal Bank of Scotland. A new definition is inserted in the
Common Definitions and Provisions Agreement, immediately after the definition of
“Responsible Financial Officer”, as follows:
“Royal Bank of Scotland” means The Royal Bank of Scotland Group plc
or any of its Affiliates.
(D) Modification of the Purchase Agreement.
(1) Paragraph 1; Definition of 97-1/Default (100%). The definition of “97 1/Default
(100%)” in Paragraph 1 of the Purchase Agreement includes a list of clauses, each of which
describe one or more events or circumstances which will constitute a 97-1/Default (100%). A
new clause (F) is added to the end of that list as follows:
(F) any bankruptcy or insolvency proceeding involving LRC or
any of its Subsidiaries, as the debtor.
(2) Subparagraph 2(A)(1). The word “or” is changed to “and” in the last line of
subparagraph 2(A)(1) of the Purchase Agreement. With that change, subparagraph 2(A)(1) is
amended and restated as follows:
(1) LRC will have the right (the “Purchase Option”) to purchase
or cause an Affiliate of LRC, as the Applicable Purchaser, to
purchase the Property on the Designated Sale Date. If LRC exercises
the Purchase Option, the purchase price for the Property will equal
the Lease Balance, and on the Designated Sale Date LRC must pay any
Base Rent and other amounts then due
under the other Operative Documents.
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(3) Subparagraph 2(A)(2)(a). The word “must” is inserted between “LRC” and “deliver”
in clause (i) of subparagraph 2(A)(2)(a) of the Purchase Agreement. Also, the word “or” is
changed to “and” in clause (iii) of subparagraph 2(A)(2)(a) of the Purchase Agreement. With
those two changes, and with formatting changes to conform the subparagraph to the
corresponding provisions in the Fremont Documents, subparagraph 2(A)(2)(a) of the Purchase
Agreement is amended and restated as follows:
(a) First, LRC will have the right to designate a third party,
other than an Affiliate of LRC, as the Applicable Purchaser and to
cause such Applicable Purchaser to purchase the Property on the
Designated Sale Date for a cash price equal to the Initial
Remarketing Price. Such right, however, will be subject to the
conditions (the “Conditions to LRC’s Initial Remarketing Rights”)
that:
(i) LRC must deliver an Initial Remarketing Notice to
BNPPLC within the thirty days prior to the Designated Sale
Date;
(ii) on the Designated Sale Date the Applicable
Purchaser tenders to BNPPLC a payment equal to the Initial
Remarketing Price; and
(iii) LRC itself tenders to BNPPLC the Supplemental
Payment, if any, which will be required by subparagraph
2(A)(3) in the event BNPPLC completes the sale to the
Applicable Purchaser, together with any Base Rent and other
amounts then due under the other Operative Documents.
Further, notwithstanding the satisfaction of the Conditions to LRC’s
Initial Remarketing Rights on the Designated Sale Date, if the Break
Even Price exceeds the sum of the following: (1) any cash price
actually tendered directly to BNPPLC by the Applicable Purchaser on
the Designated Sale Date, and (2) any Supplemental Payment actually
paid to BNPPLC by LRC on the Designated Sale Date as described
below, then BNPPLC may affirmatively elect to decline any tender of
the purchase price from the Applicable Purchaser and retain the
Property rather than sell it pursuant to this
subparagraph 2(A)(2) by making a Decision Not to Sell at a Loss.
(4) Subparagraph 3(D). In the last sentence of Subparagraph 3(D) of the
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Purchase
Agreement, the clause “or deemed to be received in connection with a Deemed Sale” is
enclosed in parenthesis. With that change, the sentence is amended and restated as follows:
Furthermore, unless and except to the extent required pursuant to
clause (4) of this subparagraph from cash proceeds received by
BNPPLC from any Qualified Sale (or deemed to be received in
connection with a Deemed Sale), no interest on any Supplemental
Payment will be paid to LRC.
(5) Subparagraph 4(C). Subparagraph 4(C) of the Purchase Agreement is amended and
restated as follows:
(C) Release and Quitclaim by LRC. If requested by
BNPPLC at the time of or after any Qualified Sale, LRC must execute
in favor of the purchaser at the Qualified Sale (or, if the
Qualified Sale is a Deemed Sale, in favor of BNPPLC) a quitclaim and
release in recordable form of all of LRC’s rights, titles and
interests in the Property, including its lien rights under
subparagraph 2(D). If, however, LRC has not already received the
share (if any) of the proceeds of the Qualified Sale to which it is
entitled by reason of clause (4) of subparagraph 3(D), LRC may
condition the delivery of such quitclaim and release upon receipt of
its share of such proceeds.
(6) Subparagraph 6(B). At the end of the last sentence of Subparagraph 6(B) of the
Purchase Agreement, the phrase “...Operative Documents, or BNPPLC’s right to exercise the
Put Option” is changed to “...Operative Documents and its right to exercise the Put Option”.
(7) Paragraph 9. In the last line of Paragraph 9 of the Purchase Agreement, the
cross-reference to “subparagraph ?” is changed to “subparagraph 2(D)”.
(8) Exhibit D. Clause (3) in the third from the last paragraph in Exhibit D to the
Purchase Agreement is amended and restated as follows:
(3) agreements between Assignor and any of Assignor’s Affiliates or
any Participants, or
(E) Modification of the Pledge Agreement. The Pledge Agreement is revised as follows:
First Modification Agreement (Livermore/Parcel 6) — Page 9
(1) Definition of Eligible Deposit Taker. In addition to other banks that would
qualify as an “Eligible Deposit Taker” as defined in Subparagraph 1(A) of the Pledge
Agreement, the following banks will qualify as Eligible Deposit Takers for purposes of the
Pledge Agreement:
(a) ABN Amro Bank, N.V. or any successor of ABN Amro Bank, N.V., acting through
any branch, office or agency in New York, Illinois or California that can lawfully
maintain a Deposit Account as a Deposit Taker under the Pledge Agreement; and
(b) Royal Bank of Scotland or any successor of Royal Bank of Scotland, acting
through any branch, office or agency in New York, Illinois or California that can
lawfully maintain a Deposit Account as a Deposit Taker under the Pledge Agreement.
(2) Definition of Pre-lease Collateral. The definition of “Pre-lease Collateral” in
Subparagraph 1(A) of the Pledge Agreement is amended and restated as follows:
“Pre-lease Collateral” means: (i) any and all Pre-lease
Deposits, Securities and other Pre-lease Account Assets that are
covered by the Initial Control Agreement; (ii) all additions to, and
proceeds, renewals, investments, reinvestments and substitutions of,
the foregoing; and (iii) all certificates, receipts and other
instruments evidencing any of the foregoing; excluding, however,
Cash Collateral and the Deposit Accounts and proceeds thereof.
Without limiting the foregoing, the Pre-lease Collateral will
include the Securities Accounts.
(3) Securities Account. The definition of “Securities Account” in Subparagraph 1(A) of
the Pledge Agreement is amended and restated as follows:
“Securities Accounts” means the accounts (whether one or more)
maintained with the Intermediary as described in and made subject to
the Initial Control Agreement, including the account identified on
the books of Intermediary as account number N0450-LRCLP in the name
of “Xxx Research Corporation, Pledgor; BNP Paribas Leasing
Corporation, Secured Party”.
(4) Subparagraph 3(A). Subparagraph 3(A) of the Pledge Agreement is amended and
restated as follows:
First Modification Agreement (Livermore/Parcel 6) — Page 10
(A) Deposit Taker Agreements. At least ten days prior
to any initial deposit of Cash Collateral with any Deposit Taker
required by this Agreement, LRC must (1) ask BNP Paribas, as the
designated Deposit Taker for BNPPLC, and each Eligible Deposit Taker
designated by any Participant to act as the Deposit Taker for it
under this Agreement, to satisfy the Deposit Taker Prerequisites;
and (2) execute and provide to BNPPLC a completed Deposit Taker’s
Agreement for BNPPLC’s execution and delivery to each Deposit Taker.
Promptly after receipt of a properly completed Deposit Taker’s
Agreement executed by LRC and in form ready to be executed by BNP
Paribas or any other Eligible Deposit Taker named therein, BNPPLC
must execute such Deposit Taker’s Agreement and deliver it to the
appropriate Deposit Taker as necessary for the satisfaction of the
Deposit Taker Prerequisites.
Without limiting the foregoing, LRC acknowledges and agrees that (i)
BNPPLC and any Participant may designate BNP Paribas or any other
Eligible Deposit Taker as its Deposit Taker, (ii) any Participant
may designate itself or any of its Affiliates as its Deposit Taker
so long as the Participant or its Affiliate, as the case may be, is
an Eligible Deposit Taker, and (iii) as provided in both the
preceding provisions of this subparagraph and in subparagraph 3(E),
BNPPLC and LRC must promptly upon request execute and deliver any
properly completed Deposit Taker’s Agreement requested by BNPPLC or
any Participant to facilitate the designations of Deposit Takers
contemplated by this Agreement. If any Participant has not already
designated an Eligible Deposit Taker to act as Deposit Taker for it
under this Agreement at any time when such a designation is
required, then BNPPLC may make the designation for such Participant;
subject, however, to the Participant’s rights under subparagraphs
3(D) and 3(E).
(5) Subparagraph 3(G). In the last sentence of Subparagraph 3(G) of the Pledge
Agreement, the phrase “by LRC” is inserted between “any replacement” and “of Cash Collateral
required by this Agreement”.
(6) Subparagraph 4(C). Subparagraph 4(C) of the Pledge Agreement is
amended and restated as follows:
(C) Transition Account. Pending deposit in the Deposit
Accounts or other application as provided herein, all Cash
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Collateral received by BNPPLC shall be deposited directly into, and
credited to and held by BNPPLC in, an account maintained by BNPPLC
in its own name with BNPPLC’s Parent (the “Transition Account”), but
held for the benefit of BNPPLC and the Participants separate and
apart from all other property and funds of BNPPLC, LRC or other
Persons, and no other property or funds shall be deposited in the
Transition Account. The books and records of BNPPLC shall reflect
that the Transition Account and all Cash Collateral on deposit
therein are owned by LRC, subject to a pledge and security interest
in favor of BNPPLC for the benefit of BNPPLC and Participants.
(7) Subparagraph 5(C). Subparagraph 5(C) of the Pledge Agreement is amended and
restated as follows:
(C) Withdrawal and Application of Cash Collateral to Reduce
or Satisfy the Secured Obligations to BNPPLC. To satisfy the
Secured Obligations, and provided no Event of Default (under and as
defined in this Agreement or as defined in the Common Definitions
and Provisions Agreement) has occurred and is continuing, LRC may
require BNPPLC to withdraw and retain any Cash Collateral held by
any Deposit Taker on the Designated Sale Date (which retention by
BNPPLC shall be free and clear of all liens and security interests
hereunder) as a payment on behalf of LRC of any amounts then due
from LRC under the Purchase Agreement; provided, that by a notice in
the form of Exhibit G, LRC must have notified BNPPLC of the required
withdrawal and payment to BNPPLC at least ten days prior to the date
upon which it is to occur.
(8) Subparagraph 6(B)(6). In the third line of Subparagraph 6(B)(6) of the Pledge
Agreement, the word “sell,” is inserted just before the phrase “encumber, lease, rent,
option, or otherwise dispose of or transfer...”.
(9) Subparagraph 9(E). Subparagraph 9(E) of the Pledge Agreement is amended and
restated as follows:
(E) Other Liable Party. Neither this Agreement nor the
exercise by BNPPLC or the failure of BNPPLC to exercise any right,
power or remedy conferred herein or by law shall be construed as
relieving LRC or any Other Liable Party from liability on the
Secured Obligations or any deficiency thereon.
First Modification Agreement (Livermore/Parcel 6) — Page 12
This Agreement shall
continue irrespective of the fact that the liability of LRC or any
Other Liable Party may have ceased or irrespective of the validity
or enforceability of any other agreement evidencing or securing the
Secured Obligations to which LRC or any Other Liable Party may be a
party, and notwithstanding the reorganization, death, incapacity or
bankruptcy of LRC or any Other Liable Party, or any other event or
proceeding affecting LRC or any Other Liable Party.
(10) Paragraph 5 of Exhibit B. Paragraph 5 of Exhibit B to the Pledge Agreement is
amended and restated as follows:
5. Exculpation; Indemnity. Deposit Taker undertakes to
perform only such duties as are expressly set forth herein.
Notwithstanding any other provisions of this Agreement, the parties
hereby agree that Deposit Taker shall not be liable for any action
taken by it in accordance with this Agreement, including, without
limitation, any action so taken at BNPPLC’s request, except direct
damages attributable to the Deposit Taker’s gross negligence or
willful misconduct. Except for the direct damages specifically
described in the preceding sentence, in no event shall Deposit Taker
be liable for any (i) losses or delays resulting from acts of God,
war, computer malfunction, interruption of communication facilities,
labor difficulties or other causes beyond Deposit Taker’s reasonable
control, or (ii) for any other damages, including, without
limitation, indirect, special, punitive or consequential damages.
LRC and BNPPLC jointly and severally agree to indemnify and hold
Deposit Taker harmless from and against all costs, damages, claims,
judgments, reasonable attorneys’ fees, expenses, obligations and
liabilities of every kind and nature (collectively, “Losses”) which
Deposit Taker may incur, sustain or be required to pay (other than
those attributable to Deposit Taker’s gross negligence or willful
misconduct) in connection with or arising out of this Agreement or
the Deposit Account (including without limitation, the amount of any
overdraft created in the Deposit Account resulting from a Chargeback
or from debiting the Deposit Account for Charges
(defined below) owed to the Deposit Taker), and to pay to
Deposit Taker on demand the amount of all such Losses. Nothing in
this Section, and no indemnification of Deposit Taker hereunder,
shall affect in any way the indemnification obligations of LRC to
BNPPLC under the Pledge Agreement or other Operative Documents. The
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provisions of this Section shall survive termination of this
Agreement.
(11) Paragraph 7 of Exhibit B. Paragraph 7 of Exhibit B to the Pledge Agreement is
amended and restated as follows:
7. Charges. In consideration of the services of
Deposit Taker in establishing, maintaining, and conducting
transactions through the Deposit Account, Deposit Taker has
established, and LRC hereby agrees to pay the reasonable fees and
other charges for the Deposit Account and services related thereto,
together with any and all other expenses incurred by Deposit Taker
in connection with this Agreement or the Deposit Account and related
services, including without limitation amounts paid or incurred by
Deposit Taker in enforcing its rights and remedies under this
Agreement, or in connection with defending any claim made against
Deposit Taker in connection with this Agreement or the Deposit
Account (collectively, the “Charges”). However, no Charges will be
debited to or offset against funds in the Deposit Account without
the prior written consent of BNPPLC. If LRC fails to pay the amount
of the Charges within five (5) Business Days of receipt of a billing
statement detailing such Charges, BNPPLC agrees to pay Deposit
Taker, via wire transfer or other immediately available funds, the
amount of such Charges within two (2) Business Days after receipt of
a billing statement detailing such Charges. Deposit Taker will xxxx
LRC directly, and LRC agrees to pay Deposit Taker, via wire transfer
or other immediately available funds, the amount of such Charges.
Deposit Taker reserves the right to change any or all of the fees
and charges according to annual review, upon not less than ten (10)
days written notice to LRC and BNPPLC.
(12) Paragraphs 10 and 11 of Exhibit B. Paragraphs 10 and 11 of Exhibit B to the
Pledge Agreement are amended and restated as follows:
10. Miscellaneous. This Agreement is binding upon the
parties hereto and their respective successors and assigns
(including
any trustee of LRC appointed or elected in any action under the
Bankruptcy Code) and shall inure to their benefit. Neither LRC nor
BNPPLC may assign their respective rights hereunder unless the prior
written consent of the Deposit Taker is obtained. Neither this
Agreement nor any provision hereof may be
First Modification Agreement (Livermore/Parcel 6) — Page 14
changed, amended, modified
or waived, except by an instrument in writing signed by the parties
hereto. Any provision of this Agreement that may prove
unenforceable under any law or regulation shall not affect the
validity of any other provision hereof. This Agreement shall be
governed by, and interpreted in accordance with, the laws of the
state in which the account office identified above is located
without regard to conflict of laws provisions. Any action in
connection with this Agreement shall be brought in the courts of the
State of [Illinois], located in [Xxxx] County, or the courts of the
United States of America for the [Northern District of Illinois];
provided, however, that with respect to an action brought by BNPPLC
to enforce its rights with respect to the Collateral, such action
may be brought in the courts of the State of California, located in
the County of Alameda, or the courts of the United States of America
for the Northern District of California. Each party hereto
irrevocably waives any objection on the grounds of venue, forum
non-conveniens or any similar grounds, irrevocably consents to
service of process by mail or in any other manner permitted by
applicable law and consents to the jurisdiction of said courts.
Each party hereto intentionally, knowingly and voluntarily
irrevocably waives any right to trial by jury in any proceeding
related to this Agreement. This Agreement may be executed in any
number of counterparts which together shall constitute one and the
same instrument.
11. Termination and Resignation. This Agreement may be
terminated by agreement of BNPPLC and LRC upon fifteen (15) days’
prior written notice to Deposit Taker; provided, however, that this
Agreement shall terminate immediately upon notice from BNPPLC that
all of LRC’s obligations secured by the Pledge Agreement are
satisfied. Deposit Taker may, at any time upon thirty (30) days’
prior written notice to BNPPLC and LRC, terminate this Agreement and
close the Deposit Account; provided, however, that a substitute
deposit taker has been appointed for [BNPPLC or name of Participant]
[if name of Participant is inserted, then also insert: (in its
capacity as a Participant)] and as
described in the Pledge Agreement. Deposit Taker may terminate
this Agreement upon ten (10) days’ prior written notice to BNPPLC
and LRC in the event of a material breach of this Agreement
(including non-payment of any Charges or other obligations under
this Agreement), and which constitutes an Event of Default as that
term is defined in the Common Definitions and
First Modification Agreement (Livermore/Parcel 6) — Page 15
Provisions Agreement,
by either LRC or BNPPLC. Upon termination of this Agreement any
funds in the Deposit Account shall be subject to the direction of
BNPPLC, including any direction given by BNPPLC that such funds be
wired to another “Deposit Taker” designated for [BNPPLC or name of
Participant] under and as defined in the Pledge Agreement.
2 Confirmation of Operative Documents by LRC. LRC ratifies and confirms all terms and
conditions of the Operative Documents, as hereby amended. LRC also confirms that LRC is not
currently aware of any Default or Event of Default which has occurred and is continuing or of any
defense, counterclaim, set-off, right of recoupment, abatement or other claim which LRC may now
have against BNPPLC under the Operative Documents.
3 Other Representations and Covenants of LRC. LRC also represents and covenants to BNPPLC
as follows:
(A) Concerning LRC and this Amendment.
(1) Authority. The Constituent Documents of LRC permit the execution, delivery and
performance of this Amendment by LRC, and all actions and approvals necessary to bind LRC
under this Amendment have been taken and obtained. Without limiting the foregoing, this
Amendment will be binding upon LRC when signed on behalf of LRC by Xxxx XxXxxxx, Treasurer
of LRC.
(2) No Default or Violation. The execution and performance by LRC of this Amendment do
not and will not contravene or result in a breach of or default under any other agreement to
which LRC is a party or by which LRC is bound or which affects any assets of LRC. Such
execution and performance by LRC do not contravene any law, order, decree, rule or
regulation to which LRC is subject. Further, such execution and performance by LRC will not
result in the creation or imposition of (or the obligation to create or impose) any lien,
charge or encumbrance on, or security interest in, any property of LRC pursuant to the
provisions of any such other agreement.
(3) Enforceability. This Amendment constitutes the legal, valid and binding
obligations of LRC enforceable in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, receivership and other similar laws affecting
the rights of creditors generally.
(B) Further Assurances. LRC will, upon the reasonable request of BNPPLC, (i) execute,
acknowledge, deliver and record or file such further instruments and do such further acts as may be
necessary, desirable or proper to carry out more effectively the purposes of this Amendment and to
subject to this Amendment any property intended to be covered hereby,
First Modification Agreement (Livermore/Parcel 6) — Page 16
including specifically, but
without limitation, any renewals, additions, substitutions, replacements or appurtenances to the
Property; (ii) execute, acknowledge, deliver, procure and record or file any document or instrument
deemed advisable by BNPPLC to protect its rights in and to the Property against the rights or
interests of third persons; and (iii) provide such certificates, documents, reports, information,
affidavits and other instruments and do such further acts as may be necessary, desirable or proper
in the reasonable determination of BNPPLC to enable BNPPLC to comply with the requirements or
requests of any agency or authority having jurisdiction over it.
(C) Reimbursement of Costs. LRC will pay or reimburse BNPPLC, upon demand, for all
reasonable out-of-pocket costs and expenses (including the reasonable fees, charges and
disbursements of counsel) incurred by BNPPLC in connection with the preparation, negotiation,
execution and delivery of this Amendment.
4 Reservation of Rights. The execution and delivery by BNPPLC of this Amendment will not
be deemed to create a course of dealing or otherwise obligate BNPPLC to enter into amendments under
the same, similar, or any other circumstances in the future. LRC is entering into this Amendment
on the basis of its own investigation and for its own reasons, without reliance upon BNPPLC or
Participants or any other Person. Except as expressly provided above, this Amendment will not
limit, modify or otherwise affect any of LRC’s obligations under any of the Operative Documents.
5 No Implied Representations or Promises by BNPPLC. LRC acknowledges and agrees that
neither BNPPLC nor its representatives or agents have made any representations or promises with
respect to the subject matter of this Amendment except as expressly set forth herein.
6 Provisions Incorporated by Reference from the Common Definitions and Provisions
Agreement. All terms and conditions set forth in Article II of the Common Definitions and
Provisions Agreement will apply to this Amendment as if this Amendment was one of the Operative
Documents specifically referenced therein.
7 References to Operative Documents. From and after the Amendment Date, all references to
any of the Operative Documents in the Operative Documents or in other documents related to the
transactions contemplated therein are intended to mean the Operative Documents,
as modified by this Amendment, unless the context shall otherwise require.
First Modification Agreement (Livermore/Parcel 6) — Page 17
8 Successors and Assigns. All of the covenants, agreements, terms and conditions to be
observed and performed by the parties hereto shall be applicable to and binding upon their
respective heirs, personal representatives and successors and, to the extent assignment is
permitted under the Operative Documents, their respective assigns.
[The signature pages follow.]
First Modification Agreement (Livermore/Parcel 6) — Page 18
IN WITNESS WHEREOF, this First Modification Agreement (Livermore/Parcel 6) is executed to be
effective as of April 3, 2008.
| BNP PARIBAS LEASING CORPORATION, a Delaware corporation | ||||||||
| By: | /s/ Xxxxx Xxxxxxxxxx
|
|||||||
STATE OF TEXAS
|
) | |||||||
| ) | SS | |||||||
COUNTY OF DALLAS
|
) | |||||||
On April ___, 2008, before me , a Notary Public in and for the
County and State aforesaid, personally appeared Xxxxx Xxxxxxxxxx, Director of BNP Paribas Leasing
Corporation, who is personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and acknowledged to me that
he/she executed the same in his/her authorized capacity and that by his/her signature on such
instrument the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS, my hand and official seal. |
||
First Modification Agreement (Livermore/Parcel 6) — Signature Page
[Continuation of signature pages for First Modification Agreement (Livermore/Parcel 6) dated as of
April 3, 2008]
| XXX RESEARCH CORPORATION, a Delaware corporation |
||||||||
| By: | /s/ Xxxx XxXxxxx
|
|||||||
STATE OF CALIFORNIA
|
) | |||||||
| ) | SS | |||||||
COUNTY OF ALAMEDA
|
) | |||||||
On April ___, 2008, before me , a Notary Public in and for the
County and State aforesaid, personally appeared Xxxx XxXxxxx, Treasurer of Xxx Research
Corporation, who is personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and acknowledged to me that
he/she executed the same in his/her authorized capacity and that by his/her signature on such
instrument the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS, my hand and official seal. |
||
First Modification Agreement (Livermore/Parcel 6) — Signature Page
Exhibit A
Legal Description
PARCEL 6, AS SAID PARCEL IS SHOWN ON THE PARCEL MAP 7341 FILED IN BOOK 268 OF PARCEL MAPS AT PAGE
85, ALAMEDA COUNTY RECORDS.
A.P.N. 000-0000-000
