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EXHIBIT 10.1
(NOVELLUS I)
SECOND AMENDMENT TO PARTICIPATION AGREEMENT
THIS SECOND AMENDMENT TO PARTICIPATION AGREEMENT (this "Amendment"),
dated as of April 13, 2001, is entered into by and among:
(1) NOVELLUS SYSTEMS, INC., a California corporation
("Lessee");
(2) LEASE PLAN NORTH AMERICA, INC., an Illinois corporation
("Head Lessor");
(3) ABN AMRO LEASING, INC., an Illinois corporation
("Lessor");
(4) Each of the financial institutions listed in Schedule I to
the Participation Agreement referred to in Recital A below
(collectively, the "Participants"); and
(5) ABN AMRO BANK N.V., as agent for the Participants (in such
capacity, "Agent").
RECITALS
A. Lessee, Head Lessor, Lessor, Participants and Agent are parties to a
Participation Agreement dated as of August 31, 1998 (as amended by a First
Amendment thereto dated as of June 4, 1999, the "Participation Agreement"),
pursuant to which Lessor and Participants have provided to Lessee two lease
facilities (individually, "Facility 1" and "Facility 2" and, collectively, the
"Facilities").
B. Lessee now has requested Head Lessor, Lessor, Participants and Agent
to amend the Participation Agreement and certain of the other Operative
Documents (as defined in the Participation Agreement) to (1) remove from
Facility 2 certain of the property leased to Lessee thereunder (such removed
property to be referred to herein as the "Novellus IV Property"), and (2) make
certain other changes. (The property remaining in Facility 2 after the removal
of the Novellus IV Property shall be referred to herein as the "Remaining
Facility 2 Property".)
C. Head Lessor, Lessor, Participants and Agent are willing so to amend
the Participation Agreement and the other Operative Documents upon the terms and
subject to the conditions set forth in this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Lessee, Head Lessor, Lessor, the Participants and Agent hereby
agree as follows:
1. DEFINITIONS, INTERPRETATION. All capitalized terms defined above and
elsewhere in this Amendment shall be used herein as so defined. Unless otherwise
defined herein, all other
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capitalized terms used herein shall have the respective meanings given to those
terms in the Participation Agreement, as amended by this Amendment. The rules of
construction set forth in Schedule 1.02 to the Participation Agreement shall, to
the extent not inconsistent with the terms of this Amendment, apply to this
Amendment and are hereby incorporated by reference.
2. AMENDMENTS TO PARTICIPATION AGREEMENT. Subject to the satisfaction
of the conditions set forth in Paragraph 5 below, the Participation Agreement is
hereby amended as follows:
(a) Subparagraph 2.06(a) is amended by changing clause (iii)(D)
to read in its entirety as follows:
(D) the purchase price paid by any Person (except as
otherwise provided in clause (i) above) to purchase the
Property under such Facility (whether after the retention of
such Property by Lessor following the Expiration Date of the
Lease Agreement for such Facility, upon foreclosure or
otherwise);
(b) Subparagraph 4.01(g) is amended to read in its entirety as
follows:
(g) Litigation. Except as set forth in the most recent
Form 10-Q and 10-K reports filed by Lessee with the Securities
and Exchange Commission, 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 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.
(c) Subparagraph 4.01(k) is amended to read in its entirety as
follows:
(k) No Agreements to Sell Assets; Etc. 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, except for sales,
mergers, consolidations or reorganizations permitted by
Subparagraph 5.02(c), 5.02(d) or 5.02(e).
(d) Subparagraph 4.01(l) is amended by changing clause (i) to
read in its entirety as follows:
(i) Based on the most recent valuation date for any
Pension Plan, the amount of unfunded benefit liabilities (as
defined in Section 4001(a)(18) of ERISA), individually or in the
aggregate for all Pension Plans (excluding for purposes of such
computation any Pension Plans with respect to which assets exceed
benefit liabilities) does not exceed an amount equal to
$10,000,000. No Pension Plan has failed to meet the minimum
funding standard of Code Section 412 (whether or not waived under
Code Section 412(d)) or failed to make by its due date a required
installment under Code Section 412(m). Neither Lessee nor
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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) that is
reasonably likely to have a Material Adverse Effect.
(e) Subparagraph 4.01(n) is amended to read in its entirety as
follows:
(n) Patent and Other Rights. Except as set forth in
Schedule 4.01(g), Lessee and its Subsidiaries own, license or
otherwise have the right to use, 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 where the failure to have any such rights,
either individually or collectively, is not reasonably likely to
have a Material Adverse Effect.
(f) Subparagraph 4.01(q) is amended to read in its entirety as
follows:
(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 percentages of shares of each such
class owned directly or indirectly by Lessee.
(g) Paragraph 4.01 is further amended by (i) deleting
Subparagraph 4.01(v) and (ii) changing the designation of Subparagraph
4.01(w) to "(v)".
(h) Subparagraph 5.01(a) is amended by (i) changing clauses
(iii) and (v) to read in their entireties as follows:
(iii) Contemporaneously with the quarterly and year-end
Financial Statements required by the foregoing clauses (i) and
(ii), a compliance certificate of the president or chief
financial officer of Lessee which (A) states that no Default has
occurred and is 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; and (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;
(v) As soon as possible and in no event later than five
(5) Business Days after any Senior Officer of Lessee knows of the
occurrence or existence of (A) any Reportable Event (excluding
any Reportable Event for which the provision of a 30-day notice
to the PBGC has been waived by regulation) 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 $10,000,000 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 president or chief financial
officer of Lessee setting forth
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details of such event, condition or Default and the action which
Lessee proposes to take with respect thereto;
(ii) deleting clause (vii) and (iii) changing the designations of
clauses (viii), (ix) and (x) to "(vii)", "(viii)" and "(ix)",
respectively.
(i) Subparagraph 5.01(e) is amended to read in its entirety as
follows:
(e) Governmental Charges and Other Indebtedness. Lessee
and its 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 and (iii) subject to any subordination provisions
applicable thereto, all other indebtedness; except where (A) the
failure to pay any such taxes, other Governmental Charges or
indebtedness, either alone or collectively, is not reasonably
likely to have a Material Adverse Effect and (B) any such taxes,
other Governmental Charges or 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 as required by GAAP are maintained.
(j) Paragraph 5.01 is further amended by (i) deleting
Subparagraphs 5.01(h) and 5.01(i) and (ii) adding a new Subparagraph
5.01(h) to read in its entirety as follows:
(h) Related Credit Agreement. If at any time the financial
covenants set forth in Paragraph 5.03 (or any applicable
definition used therein) differs from the financial covenants set
forth in the Related Credit Agreement (or any applicable
definition used therein), Lessee shall execute such amendments to
this Agreement as Lessor or Required Participants may reasonably
request to conform the financial covenants set forth in Paragraph
5.03 (or any applicable definition used therein) with such
financial covenants set forth in the Related Credit Agreement.
(k) Subparagraph 5.02(a) is amended by (i) changing clauses (iii)
and (iv) to read in their entirety as follows:
(iii) Synthetic Lease Obligations, provided that the
aggregate principal amount thereof (including the Outstanding
Lease Amounts hereunder) outstanding at any time does not exceed
$595,000,000;
(iv) Indebtedness of Lessee and its Subsidiaries listed in
Schedule 5.02(a) and existing on April 13, 2001 (including
committed but undrawn amounts);
and (ii) changing the reference to "clause (ii), (iii) or (v)" in clause
(ix) to "clause (ii) or (iv)".
(l) Subparagraph 5.02(b) is amended by changing clauses (ii) and
(x) to read in their entireties as follows:
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(ii) Liens securing the Related Credit Obligations or
Synthetic Lease Obligations;
(x) Judgement Liens, provided that such Liens do not have
a value in excess of $10,000,000 or such Liens are released,
stayed, vacated or otherwise dismissed within twenty (20) days
after issue or levy and, if so stayed, such stay is not
thereafter removed;
(m) Subparagraph 5.02(c) is amended by changing clause (vi) to
read in its entirety as follows:
(vi) 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
the terms of any such sales or other dispositions by or to Lessee
(other than sales or other dispositions by Lessee to any of
Lessee's wholly owned Subsidiaries or by any of Lessee's wholly
owned subsidiaries to Lessee, except for sales or dispositions by
Lessee which, either singly or in the aggregate with respect to
all such sales or dispositions, would involve all or
substantially all of the assets or property of Lessee or which
would render Lessee incapable of performing its obligations under
the Operative Documents) are on terms which are no less favorable
to Lessee than would prevail in the market for similar
transactions between unaffiliated parties dealing at arms length;
(n) Subparagraph 5.02(d) is amended by changing clause (iii)(C)
thereof to read in its entirety as follows:
(C) The aggregate cost of any such merger, consolidation,
establishment or acquisition does not exceed the amounts
permitted under clause (v) of Subparagraph 5.02(e) (except for
Lessee's cost of acquiring Gasonics International Corporation,
which shall not be subject to such limitation).
(o) Subparagraph 5.02(e) is amended to read in its entirety as
follows:
(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 duly approved by the Board of Directors of
Lessee and in effect at the time of such Investment;
(ii) Investments held by Gasonics International
Corporation on the date Gasonics International Corporation
is acquired by Lessee;
(iii) Any transaction permitted by Subparagraph
5.02(a);
(iv) Investments by Lessee in the "Tranche A"
portion of synthetic leases in which it is the lessee and
which constitute Economically Defeased Synthetic Lease
Obligations;
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(v) Investments in joint ventures and strategic
alliances, provided that the aggregate amount of such
Investments does not exceed in any fiscal year two and
one-half percent (2 1/2%) of the tangible assets of Lessee
and its Subsidiaries, determined on a consolidated basis
in accordance with GAAP, on the last day of the
immediately preceding fiscal year; and
(vi) Other Investments, provided that the aggregate
amount of such other Investments plus the aggregate cost
of all mergers and consolidations consummated,
Subsidiaries established and Subsidiaries and assets
acquired by Lessee pursuant to Subparagraph 5.02(d)
(excluding Lessee's acquisition of Gasonics International
Corporation) does not exceed in any fiscal year (A)
$100,000,000 for any amounts paid in cash and (B)
$500,000,000 for any amounts paid with shares of common
stock of Lessee (as determined according to the stock
price of such shares on the date of transfer) and
accounted for on a pooling basis in accordance with GAAP.
(p) Paragraph 5.02 is further amended by (i) deleting
Subparagraph 5.02(i) and (ii) changing the designation of Subparagraph
5.02(j) to "(i)".
(q) Paragraph 5.03 is amended to read in its entirety as follows:
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) Funded Indebtedness/Capital Ratio. Lessee shall
not permit its Funded Indebtedness/Capital Ratio on any
day set forth below to be greater than the ratio set forth
opposite such day below:
The last day of any
fiscal quarter 0.40 to 1.00.
(b) Quick Ratio. Lessee shall not permit its Quick
Ratio on any day set forth below to be less than the ratio
set forth opposite such day below:
The last day of any
fiscal quarter 1.50 to 1.00.
(c) Debt Service Coverage Ratio. Lessee shall not
permit its Debt Service Coverage Ratio for any fiscal
quarter ending on any day set forth below to be less than
the ratio set forth opposite such day below:
The last day of any
fiscal quarter 3.50 to 1.00.
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(d) Tangible Net Worth. Commencing on December 31,
2000, Lessee shall not permit its Tangible Net Worth on
the last day of any fiscal quarter (such date to be
referred to herein as a "determination date") to be less
than the sum on such determination date of the following:
(i) $664,477,000.00 (the approximate amount
of Lessee's Tangible Net Worth on December 31,
1999);
plus
(ii) Seventy-five percent (75%) of the sum of
(A) Lessee's consolidated annual net income for its
fiscal year ending December 31, 2000 (ignoring any
annual loss); plus (B) the sum of Lessee's
consolidated quarterly net income (ignoring any
quarterly losses) for each fiscal quarter ending
after December 31, 2000 through and including the
fiscal quarter ending on the determination date;
plus
(iii) One hundred percent (100%) 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
December 31, 1999 and ending on the determination
date;
plus
(iv) One hundred percent (100%) 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 December 31, 1999 and ending on
the determination date.
provided, however, that in no case shall Lessee permit its
Tangible Net Worth on December 31, 2000 to be less than
$1,260,000,000.00.
(e) Minimum Cash Balances. Lessee shall not permit its Cash
Balances on any date to be less than the remainder of:
(i) The aggregate amount on such date of all
Synthetic Lease Obligations of Lessee and its
Subsidiaries that (A) would be attributable to
principal if such obligations were treated as loan
obligations and (B) become due within one (1) year
of such date;
minus
(ii) The sum of (A) all cash of Lessee and
its Subsidiaries on such date and (B) the market
value of Cash Equivalents and short-term marketable
securities (that are
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classified as current assets in accordance with
GAAP) of Lessee and its Subsidiaries on such date
to the extent such cash, Cash Equivalents and
short-term marketable securities secure payment of
the current Synthetic Lease Obligations referred to
in clause (i) above.
(In calculating the market value of Cash Equivalents and
short-term marketable securities under this subparagraph, Cash
Equivalents and short-term marketable securities shall be
marked to market quarterly.)
(r) Paragraph 7.01 is amended by changing the notice
addresses, etc. for Lessee, Lessor and Agent set forth therein to
read in their entireties as follows:
Lessee: Novellus Systems, Inc.
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Treasurer
Telephone: (000) 000-0000
Fax No: (000) 000-0000
Lessor: ABN AMRO Leasing, Inc.
c/o ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Fax No: (000) 000-0000
Agent: ABN AMRO Bank N.V.
Agency Services
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxxxx X'Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
with copies to:
ABN AMRO Bank N.V.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
Attn: Xxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
and
ABN AMRO Bank N.V.
Credit Administration
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000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
(s) Schedule 1.01 is amended by changing the definitions of the
following terms appearing therein to read in their entireties as
follows:
"Adjusted Net Income" 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 and its
Subsidiaries for such period before provision for income
taxes;
plus
(b) The sum (to the extent deducted in calculating
net income or loss in clause (a) above) of (i) all
Interest Expenses of Lessee and its Subsidiaries
accruing during such period, (ii) all depreciation and
amortization expenses of Lessee and its Subsidiaries
accruing during such period, and (iii) all rental
expenses of Lessee and its Subsidiaries accruing during
such period (including Base Rent under the Lease
Agreements but excluding any Base Rent or other rental
expenses that are capitalized by the lessor during such
period);
minus
(c) Fifty percent (50%) of all Capital
Expenditures of Lessee and its Subsidiaries accruing
during such period.
"Agent's Fee Letter" shall mean collectively the letter
agreement dated as of July 20, 1998 between Lessee and Agent
regarding certain fees payable by Lessee to Agent and the letter
agreements dated as of October 11, 2000 and December 5, 2000 between
Lessee and Agent regarding certain other fees payable by Lessee to
Agent.
"Debt Service 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 Adjusted Net Income of Lessee for such
period;
to
(b) The sum of (i) all Interest Expenses of Lessee
and its Subsidiaries accruing during such period, (ii)
all rental expenses of Lessee and its Subsidiaries
accruing during such period (including Base Rent under
the Lease Agreements but excluding any Base Rent or
other rental
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expenses that are capitalized by the lessor during such
period), and (iii) 25% of all payments of principal (or,
in the case of Capital Leases, amounts attributable to
principal) of Funded Indebtedness (excluding Synthetic
Lease Obligations) paid or scheduled to be paid by
Lessee and its Subsidiaries due within one year.
"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 and its
Subsidiaries for such period before provision for income
taxes;
plus
(b) The sum (to the extent deducted in calculating
net income or loss in clause (a) above) 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.
"Funded 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 but excluding trade payables incurred by such
Person in the ordinary course of its business on
ordinary terms and not overdue) and all Synthetic Lease
Obligations of such Person (excluding the Economically
Defeased Portion of Synthetic Lease Obligations);
(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); and
(d) All obligations of such Person as lessee under
or with respect to Capital Leases.
"Lease Reduction Payments" shall mean each of the
following to the extent applied to reduce the Outstanding
Lease Amount under either Facility pursuant to the Operative
Documents:
(a) The Principal Component of Base Rent paid
under such Facility;
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(b) Casualty and Condemnation Proceeds with
respect to such Facility;
(c) 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 for such Facility;
(d) The Residual Value Guaranty and Indemnity
Amount paid by Lessee pursuant to the Purchase Agreement
for such Facility;
(e) Any proceeds received by Lessee from any sale
of the Property under such Facility after the Expiration
Date for such Facility if such Property is retained by
Lessor after such Expiration Date pursuant to the
applicable Purchase Agreement;
(f) 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 for such Facility; and
(g) Any other amount received by Lessor that
Lessee, Lessor and Agent agree shall be applied to
reduce the Outstanding Lease Amount under a Facility.
"Material Casualty" shall mean any Casualty to the
Property that alone, or in combination with any prior
Casualties to the Property for which repairs to restore the
Property to its prior condition have not been completed, will
require repairs costing $2,500,000 or more to restore the
Property to its prior condition.
"Operative Documents" shall mean and include the
Participation Agreement, the Head Lease Agreements, the Lease
Agreements, the Facility 2 Construction Agency Agreement, the
Purchase Agreements, the Lessee Security Documents, the Lessor
Deed of Trust, the Lessor Security Agreement, the Assignment
of Lease, the Agent's Fee Letter, the Agent's Syndication
Letter and the Lessor's Fee Letter; all other notices,
requests, certificates, documents, instruments and agreements
delivered to any Lessor Party pursuant to Paragraph 3.01 of
the Participation Agreement; all notices, requests,
certificates, documents, instruments and agreements required
to be delivered to any Lessor Party in connection with any of
the foregoing on or after the date of the Participation
Agreement; and all Rate Contracts provided to Lessee by any
Participant to hedge against fluctuations in the LIBOR Rental
Rate under either or both Lease Agreements. (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.)
"Pension Plan" shall mean any Employee Benefit Plan
subject to Title IV of ERISA that either Lessee or any ERISA
Affiliate maintains or contributes to or has any obligation
under.
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"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 of (i) the sum (without
duplication) of all cash, Cash Equivalents, short-term
investments and net accounts receivable of Lessee and its
Subsidiaries at such time, minus (ii) the sum (without
duplication) of all such cash, Cash Equivalents,
short-term investments and net accounts receivable that
are subject to a Lien or are otherwise restricted;
to
(b) The current liabilities of Lessee and its
Subsidiaries at such time.
(In calculating the Quick Ratio, Cash Equivalents and short-term
investments shall be marked to market quarterly.)
(t) Schedule 1.01 is further amended by adding thereto, in the
appropriate alphabetical order, the definitions of the following terms to
read in their entireties as follows:
"Cash Balances" shall mean, with respect to Lessee and
its Subsidiaries at any time, the sum, determined on a
consolidated basis in accordance with GAAP, of (a) the
unrestricted, unencumbered cash of Lessee and its Subsidiaries
at such time and (b) the market value of unrestricted,
unencumbered Cash Equivalents and short-term marketable
securities (that are classified as current assets in
accordance with GAAP) of Lessee and its Subsidiaries at such
time. (In calculating Cash Balances, Cash Equivalents and
short-term marketable securities shall be marked to market
quarterly.)
"Economically Defeased Portion of Synthetic Lease
Obligations" shall mean the remainder of (a) the sum of the
"Tranche A" portions, "Tranche B" portions and "Tranche C"
portions of leases constituting Economically Defeased
Synthetic Lease Obligations, minus (b) the aggregate amount of
the "Tranche A" portions of such leases that the lessee has
sold, assigned or otherwise transferred to any other Person.
"Economically Defeased Synthetic Lease Obligations"
shall mean Synthetic Lease Obligations under synthetic leases
in which the lessee has secured the "Tranche B" portion of
such leases and the "Tranche C" portion of such leases with
cash and/or Cash Equivalents and initially has purchased a
100% participation interest in the "Tranche A" portion of such
leases.
"Synthetic Lease Obligations" shall mean the monetary
obligations of a Person under (a) a so-called synthetic,
off-balance sheet or tax retention lease, or (b) an agreement
for the use or possession of property creating obligations
that do not appear on the balance sheet of such Person but
which, upon the insolvency or bankruptcy of such Person, would
be characterized as the indebtedness of such Person (without
regard to accounting treatment).
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(u) Schedules 4.01(g) and 5.02(e) are deleted.
(v) Schedule 5.02(a) is amended to read in its entirety as set forth
in the counterpart schedule hereto.
(w) Exhibit A is amended by deleting therefrom (i) Part 2 describing
Tract 2 (3940 and 0000 X. Xxxxx Xx.), (ii) Part 5 describing Xxxxx 0 (00
Xxxxxxxxxxxx Xxxxx) and (iii) that certain portion of Part 1 describing
Tract 1 (3930 N. First St.) subject to Lot Line Adjustment Permit No. AT
00-00-000 recorded on March 8, 2001 in the Official Records of Santa Xxxxx
County, California, as Instrument No. 15585476.
(x) Exhibits E, F(1) and F(2) are hereby amended by changing the
notice address appearing therein to the following:
ABN AMRO Bank N.V.
Agency Services
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxxxx X'Xxxxx
3. AMENDMENTS TO OTHER OPERATIVE DOCUMENTS. Subject to the satisfaction of
the conditions set forth in Paragraph 5 below, the Lease Agreements, Purchase
Agreements and Facility 2 Construction Agency Agreement are hereby amended by
changing the notice address appearing in the exhibits thereto in the same manner
as provided in the immediately preceding subparagraph 2(x).
4. REPRESENTATIONS AND WARRANTIES. Lessee hereby represents and warrants
to Agent and the Participants that the following are true and correct on the
date of this Amendment and that, after giving effect to the amendments set forth
in Paragraphs 2 and 3 above, the following will be true and correct on the
Effective Date (as defined below):
(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.
(Without limiting the scope of the term "Operative Documents," Lessee expressly
acknowledges in making the representations and warranties set forth in this
Paragraph 4 that, on and after the date hereof, such term includes this
Amendment.)
5. EFFECTIVE DATE. Lessee shall deliver to Agent a written notice
specifying the effective date for this Amendment ("Effective Date"), which date
shall be a Business Day prior to April 27, 2001. Lessee shall deliver such
notice to Agent at least five (5) Business Days prior to the Effective Date. The
amendments effected by Paragraphs 2 and 3 above shall then become effective on
the Effective Date, subject to receipt by Lessor, Agent and the Participants, on
or
13
14
prior to such date, of the following, each in form and substance satisfactory to
Lessor, Agent, Participants and their respective counsel:
(a) This Amendment duly executed by Head Lessor, Lessor, Lessee,
each Participant and Agent;
(b) A First Amendment to Facility 1 Lease Agreement in the form of
Exhibit A hereto, duly executed by Lessee and Lessor and appropriately
notarized for recording;
(c) A First Amendment to Facility 2 Lease Agreement in the form of
Exhibit B hereto, duly executed by Lessee and Lessor and appropriately
notarized for recording;
(d) A Second Amendment to Facility 2 Head Lease Agreement in the
form of Exhibit C hereto, duly executed by Head Lessor and Lessor;
(e) A First Amendment to Assignment of Lease in the form of Exhibit
D hereto, duly executed by Lessor and Agent and appropriately notarized
for recording;
(f) A First Amendment to Construction Deed of Trust in the form of
Exhibit E hereto, duly executed by Lessor and Agent and appropriately
notarized for recording;
(g) An Amendment to the Memorandum of Purchase Agreement for
Facility 2 to reflect the removal of the Novellus IV Property from
Facility 2, duly executed by Lessee and Lessor and appropriately notarized
for recording;
(h) An Amendment to the Memorandum of Head Lease Agreement for
Facility 2 to reflect the removal of the Novellus IV Property from
Facility 2, duly executed by Head Lessor and Lessor and appropriately
notarized for recording;
(i) Evidence that the title company issuing the title endorsements
pursuant to clause 5(j) below is prepared to record each of the documents
delivered pursuant to clauses 5(b), 5(c), 5(e), 5(f), 5(g) and 5(h) above
in the Official Records of the County of Santa Clara, California;
(j) Such endorsements as Lessor and Agent may reasonably request to
each of (i) the ALTA extended coverage owner's interim title insurance
binder for the Property insuring Lessor's fee simple title therein issued
in connection with the closing of the Participation Agreement, (ii) the
ALTA extended coverage lender's policy of title insurance for the Property
insuring the validity and priority of the Lease Agreements in connection
with the closing of the Participation Agreement, and (iii) the ALTA
extended coverage lender's policy of title insurance for the Property
insuring the validity and priority of the Lessor Deed of Trust issued in
connection with the closing of the Participation Agreement;
(k) The following Appraisals, each dated as of a recent date prior
to the Effective Date:
(1) An Appraisal that assesses the Fair Market Value of the
Remaining Facility 2 Property, as of the date of such Appraisal, at
not less than the remaining
14
15
Outstanding Lease Amount under Facility 2 after application of the
Lease Reduction Payment delivered by Lessee pursuant to clause 5(r)
below; and
(2) An Appraisal that assesses the Fair Market Value of the
Remaining Facility 2 Property, as of the Scheduled Expiration Date,
at not less than the remaining Outstanding Lease Amount under
Facility 2 after application of the Lease Reduction Payment
delivered by Lessee pursuant to clause 4(r) below;
(l) An as-built survey of each of the Facility 1 Property and the
Remaining Facility 2 Property (a) prepared and dated not more than two (2)
months prior to the Effective 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 1-5, 7-13 and
15 of Table 3 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, whether above or underground, (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;
(m) A certificate of the Chief Financial Officer or Treasurer of
Lessee, addressed to Lessor and Agent and dated the Effective Date,
certifying that:
(1) 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);
(2) No Default has occurred and is continuing as of such date;
(3) All of the Operative Documents are in full force and
effect on such date;
(n) A Certificate of Good Standing (or comparable certificate) for
Lessee, certified as of a recent date prior to the Effective Date by the
Secretary of State (or comparable official) of its jurisdiction of
incorporation;
(o) A Certificate of the Secretary of Lessee, dated the Effective
Date, certifying that (i) that attached thereto are true and correct
copies of Articles of Incorporation and Bylaws of Lessee as in effect on
the Effective Date; and (ii) 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 this Amendment and the consummation of the
transactions contemplated hereby;
(p) A certificate of the Secretary or an Assistant Secretary of
Lessee, dated the Effective Date, certifying the incumbency, signatures
and authority of the officers of Lessee authorized to execute, deliver and
perform this Amendment and all other
15
16
documents, instruments or agreements related thereto executed or to be
executed by Lessee;
(q) A favorable written opinion of Xxxxxxxx & Xxxxxxxx, LLP, counsel
to Lessee, dated the Effective Date, addressed to Agent for the benefit of
Lessor, Agent and the Participants, covering such legal matters as Agent
may reasonably request and otherwise in form and substance satisfactory to
Agent;
(r) A Lease Reduction Payment of $44,813,000, to be applied to
reduce the Outstanding Lease Amount under Facility 2 and to be shared by
the Participants pro rata according to their respective Outstanding
Participation Amounts under Facility 2 on the Effective Date;
(s) An amendment fee for each Participant equal to 0.125% of such
Participant's aggregate Outstanding Participation Amount under both
Facilities on the Effective Date;
(t) All fees and expenses payable to the Lessor Parties on or prior
to the Effective Date (including all Agent's Fees);
(u) All fees and expenses of Lessor's and Agent's counsels through
the Effective Date, to the extent set forth in statements of such counsels
delivered to Lessee one or more days prior to the Effective Date; and
(v) Such other evidence as Lessor, Agent or any Participant may
reasonably request to establish the accuracy and completeness of the
representations and warranties and the compliance with the terms and
conditions contained in this Amendment and the other Operative Documents.
6. EFFECT OF THIS AMENDMENT. On and after the Effective Date, each
reference in the Participation Agreement and the other Operative Documents to
the Participation Agreement shall mean the Participation Agreement as amended
hereby. Except as specifically amended above, (a) the Participation Agreement
and the other Operative Documents shall remain in full force and effect and are
hereby ratified and affirmed and (b) the execution, delivery and effectiveness
of this Amendment shall not, except as expressly provided herein, operate as a
waiver of any right, power, or remedy of the Participants or Agent, nor
constitute a waiver of any provision of the Participation Agreement or any other
Operative Document.
7. MISCELLANEOUS.
(a) Counterparts. This Amendment 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.
(b) Headings. Headings in this Amendment are for convenience of
reference only and are not part of the substance hereof.
(c) Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of California without reference
to conflicts of law rules.
16
17
IN WITNESS WHEREOF, Lessee, Head Lessor, Lessor, Agent and the
Participants have caused this Amendment to be executed as of the day and year
first above written.
LESSEE: NOVELLUS SYSTEMS, INC.
By:___________________________
Name:______________________
Title:_______________________
HEAD LESSOR: LEASE PLAN NORTH AMERICA, INC.
By:___________________________
Name:______________________
Title:_______________________
LESSOR: ABN AMRO LEASING, INC.
By:___________________________
Name:______________________
Title:_______________________
AGENT: ABN AMRO BANK N.V.
By:___________________________
Name:______________________
Title:_______________________
By:___________________________
Name:______________________
Title:_______________________
PARTICIPANTS: ABN AMRO BANK N.V.
By:___________________________
Name:______________________
Title:_______________________
By:___________________________
Name:______________________
Title:_______________________
S-1
18
KEYBANK NATIONAL ASSOCIATION
By:___________________________
Name:______________________
Title:_______________________
THE SUMITOMO BANK, LIMITED
By:___________________________
Name:______________________
Title:_______________________
THE INDUSTRIAL BANK OF JAPAN, LIMITED, SAN
FRANCISCO AGENCY
By:___________________________
Name:______________________
Title:_______________________
THE BANK OF NOVA SCOTIA
By:___________________________
Name:______________________
Title:_______________________
UNION BANK OF CALIFORNIA, N.A.
By:___________________________
Name:______________________
Title:_______________________
COMERICA BANK-CALIFORNIA
By:___________________________
Name:______________________
Title:_______________________
S-2
19
FLEET NATIONAL BANK
By:___________________________
Name:______________________
Title:_______________________
BANQUE NATIONALE DE PARIS
By:___________________________
Name:______________________
Title:_______________________
CREDIT LYONNAIS LOS ANGELES BRANCH
By:___________________________
Name:______________________
Title:_______________________
THE FUJI BANK, LIMITED
By:___________________________
Name:______________________
Title:_______________________
THE MITSUBISHI TRUST AND BANKING
CORPORATION, LOS ANGELES AGENCY
By:___________________________
Name:______________________
Title:_______________________
X-0
00
XXXXXXX XXXXXXXX
By:___________________________
Name:______________________
Title:_______________________
CALIFORNIA BANK & TRUST, formerly known
as "The Sumitomo Bank of California"
By:___________________________
Name:______________________
Title:_______________________
SANWA BANK CALIFORNIA
By:___________________________
Name:______________________
Title:_______________________
ABN AMRO LEASING, INC.
By:___________________________
Name:______________________
Title:_______________________
S-4
21
GENERAL ELECTRIC CAPITAL CORP.
By:___________________________
Name:______________________
Title:_______________________
XXXXX FARGO BANK
By:___________________________
Name:______________________
Title:_______________________
NATIONAL CITY BANK
By:___________________________
Name:______________________
Title:_______________________
S-5
22
SCHEDULE 5.02(a)
EXISTING INDEBTEDNESS
FINANCIAL INSTITUTION CURRENCY AMOUNT FACILITY TYPE
--------------------- -------- ------ -------------
Bank of Tokyo Mitsubishi JPY 1,300,000,000 Line of Credit
Bank of Tokyo Mitsubishi JPY 520,000,000 Line of Credit
Sanwa Bank JPY 2,400,000,000 Line of Credit
Sumitomo Bank JPY 500,000,000 Line of Credit
ABN AMRO Bank USD 97,000 Standby L/C
Malayan Banking Berhad RM 30,000 Bank Guarantee Facility
5.02(a)-1
23
EXHIBIT A
RECORDING REQUESTED BY
AND WHEN RECORDED, RETURN TO:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
Old Federal Reserve Bank Building
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx, Esq.
------------------------------------------------------------------------------
FIRST AMENDMENT TO FACILITY 1 LEASE AGREEMENT,
AND PARTIAL RELEASE OF DEED OF TRUST WITH ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS FIRST AMENDMENT TO FACILITY 1 LEASE AGREEMENT, AND PARTIAL RELEASE OF
DEED OF TRUST WITH ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING
(this "Amendment"), dated as of April 13, 2001, is entered into by and between:
(1) NOVELLUS SYSTEMS, INC., a California corporation ("Lessee"); and
(2) ABN AMRO LEASING, INC., an Illinois corporation, as lessor under
the Facility 1 Lease Agreement (as defined below) and as trustee under the
deed of trust contained therein ("Lessor").
RECITALS
A. Lessee, Lease Plan North America, Inc. ("Head Lessor"), Lessor, each of
the financial institutions that are parties thereto as "Participants"
("Participants"), and ABN AMRO BANK, N.V., as agent for the Participants (in
such capacity, "Agent"), are parties to that certain Participation Agreement
dated as of August 31, 1998 (as amended by a First Amendment thereto dated as of
June 4, 1999, the "Participation Agreement"), pursuant to which Lessor and
Participants have provided to Lessee two lease facilities (individually,
"Facility 1" and "Facility 2" and, collectively, the "Facilities").
B. Pursuant to the Participation Agreement, Lessee and Lessor executed a
Facility 1 Lease Agreement, Deed of Trust with Assignment of Rents, Security
Agreement and Fixture Filing dated as of August 31, 1998, affecting certain real
property located in Santa Xxxxx County, California, described in Exhibit A
thereto (the "Facility 1 Lease Agreement"). The Facility 1 Lease Agreement was
recorded in the Official Records of Santa Xxxxx County, California, on September
1,1998, as Document No. 14367291.
C. Lessee now has requested Head Lessor, Lessor, Participants and Agent
to amend the Participation Agreement and certain of the other Operative
Documents (as defined in the Participation Agreement) to (1) remove from
Facility 2 certain of the property leased to Lessee thereunder and (2) make
certain other changes.
X-0
00
X. Xxxxxxxx to a Second Amendment to Participation Agreement dated as of
April 13, 2001 (the "Second Amendment to Participation Agreement") among Lessee,
Head Lessor, Lessor, Participants and Agent, Head Lessor, Lessor, Participants
and Agent have agreed to amend the Participation Agreement and the other
Operative Documents upon the terms and subject to the conditions set forth in
the Second Amendment to Participation Agreement, including without limitation,
the execution and delivery by Lessee of this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Lessee and Lessor hereby agree as follows:
1. DEFINITIONS, INTERPRETATION. All capitalized terms defined above and
elsewhere in this Amendment shall be used herein as so defined. Unless otherwise
defined herein, all other capitalized terms used herein shall have the
respective meanings given to those terms in Schedule 1.01 to the Participation
Agreement. The rules of construction set forth in Schedule 1.02 to the
Participation Agreement shall, to the extent not inconsistent with the terms of
this Amendment, apply to this Amendment and are hereby incorporated by
reference.
2. AMENDMENTS TO THE FACILITY 1 LEASE AGREEMENT.
(a) Subparagraphs 2.07(a) and 2.07(b) are hereby amended by changing
the introductory clause "As security for the Lessee Obligations," in each
to "As security for the Lessee Obligations under Facility 1."
(b) Subparagraph 3.07(a) is amended to read in its entirety as
follows:
(a) Lessee's Covenants. Subject to Paragraph 3.12 relating to
permitted contests, Lessee shall not create, incur, assume or permit
to exist any Lien or easement on or with respect to any of the
Facility 1 Property of any character, whether now owned or hereafter
acquired, except for the following ("Permitted Property Liens"):
(i) Liens in favor of a Lessor Party securing the Lessee
Obligations and other Lessor Liens;
(ii) Liens and easements in existence on the
Commencement Date to the extent reflected in the title
insurance policies delivered to Agent pursuant to Paragraph
3.02 of and Schedule 3.02 to the Participation Agreement and
approved by Lessor;
(iii) Liens for taxes or other Governmental Charges not
at the time delinquent or thereafter payable without penalty;
(iv) Liens of carriers, warehousemen, mechanics,
materialmen and vendors and other similar Liens imposed by law
incurred in the ordinary course of business for sums not
overdue;
A-2
25
(vi) Easements granted or created in connection with and
reasonably necessary for the construction of the New
Improvements as approved by Lessor; and
(vi) Lessor Liens.
Subject to Paragraph 3.12 relating to permitted contests, Lessee
shall promptly (A) pay all Indebtedness of Lessee and other
obligations prior to the time the non-payment thereof would give
rise to a Lien on the Facility 1 Property and (B) discharge, at its
sole cost and expense, any Lien on the Facility 1 Property which is
not a Permitted Facility 1 Property Lien.
(c) Subparagraphs 5.01(e) and 5.01(h) are hereby amended by changing
the amount "$2,500,000" wherever it appears therein to "$10,000,000".
(d) Exhibit A is amended by releasing and deleting therefrom that
certain portion of Part 1 (Tract 1, 0000 X. Xxxxx Xx.) subject to Lot Line
Adjustment Permit No. AT 00-00-000 recorded on March 8, 2001 in the
Official Records of Santa Xxxxx County, California, as Instrument No.
15585476.
3. EFFECTIVE DATE. The amendments effected by Paragraph 2 above shall
become effective on the "Effective Date" as defined in the Second Amendment to
Participation Agreement, subject to satisfaction of the conditions set forth in
Paragraph 5 thereof.
4. EFFECT OF THIS AMENDMENT. On and after the Effective Date, each
reference in the Facility 1 Lease Agreement and the other Operative Documents to
the Facility 1 Lease Agreement shall mean the Facility 1 Lease Agreement as
amended hereby. Except as specifically amended above, (a) the Facility 1 Lease
Agreement and the other Operative Documents shall remain in full force and
effect and are hereby ratified and affirmed and (b) the execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power, or remedy of Lessor, the Participants
or Agent, nor constitute a waiver of any provision of the Facility 1 Lease
Agreement or any other Operative Document.
5. MISCELLANEOUS.
(a) Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument. The signature
page and acknowledgment of any counterpart may be removed therefrom and
attached to any other counterpart to evidence execution thereof by all of
the parties hereto without affecting the validity thereof.
(b) Headings. Headings in this Amendment are for convenience of
reference only and are not part of the substance hereof.
A-3
26
(c) Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of California without reference
to conflicts of law rules.
[The signature page follows.]
A-4
27
IN WITNESS WHEREOF, Lessee and Lessor have caused this Amendment to be
executed as of the day and year first above written.
LESSEE: NOVELLUS SYSTEMS, INC.
By:_________________________________
Name:____________________________
Title:_____________________________
LESSOR: ABN AMRO LEASING, INC.
By:_________________________________
Name:____________________________
Title:_____________________________
A-5
28
STATE OF __________________________________)
)
COUNTY OF _________________________________)
On ________ 2001, before me, _______________________, a Notary
Public in and for the State of California, personally appeared
_______________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL]
_______________________________________
29
STATE OF __________________________________)
)
COUNTY OF _________________________________)
On ___________, 2001, before me, _______________________, a
Notary Public in and for the State of California, personally appeared
_______________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL]
_______________________________________
30
EXHIBIT B
RECORDING REQUESTED BY
AND WHEN RECORDED, RETURN TO:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
Old Federal Reserve Bank Building
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx, Esq.
-------------------------------------------------------------------------------
FIRST AMENDMENT TO FACILITY 2 LEASE AGREEMENT,
AND PARTIAL RELEASE OF CONSTRUCTION DEED OF TRUST
WITH ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS FIRST AMENDMENT TO FACILITY 2 LEASE AGREEMENT, AND PARTIAL RELEASE OF
CONSTRUCTION DEED OF TRUST WITH ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND
FIXTURE FILING (this "Amendment"), dated as of April 13, 2001, is entered into
by and between:
(1) NOVELLUS SYSTEMS, INC., a California corporation ("Lessee"); and
(2) ABN AMRO LEASING, INC., an Illinois corporation, as lessor under
the Facility 1 Lease Agreement (as defined below) and as trustee under the
deed of trust contained therein ("Lessor").
RECITALS
A. Lessee, Lease Plan North America, Inc. ("Head Lessor"), Lessor,
each of the financial institutions that are parties thereto as "Participants"
("Participants"), and ABN AMRO BANK, N.V., as agent for the Participants (in
such capacity, "Agent"), are parties to that certain Participation Agreement
dated as of August 31, 1998 (as amended by a First Amendment thereto dated as of
June 4, 1999, the "Participation Agreement"), pursuant to which Lessor and
Participants have provided to Lessee two lease facilities (individually,
"Facility 1" and "Facility 2" and, collectively, the "Facilities").
B. Pursuant to the Participation Agreement, Lessee and Lessor executed
a Facility 2 Lease Agreement, Construction Deed of Trust with Assignment of
Rents, Security Agreement and Fixture Filing dated as of August 31, 1998,
affecting certain real property located in Santa Xxxxx County, California,
described in Exhibit A thereto (the "Facility 2 Lease Agreement"). The Facility
2 Lease Agreement was recorded in the Official Records of Santa Xxxxx County,
California, on September 1, 1998, as Document No. 14367292.
C. Lessee now has requested Head Lessor, Lessor, Participants and Agent to
amend the Participation Agreement and certain of the other Operative Documents
(as defined in the Participation Agreement) to (1) remove from Facility 2
certain of the property leased to Lessee thereunder and (2) make certain other
changes.
B-1
31
D. Pursuant to a Second Amendment to Participation Agreement dated as of
April 13, 2001 (the "Second Amendment to Participation Agreement") among Lessee,
Head Lessor, Lessor, Participants and Agent, Head Lessor, Lessor, Participants
and Agent have agreed to amend the Participation Agreement and the other
Operative Documents upon the terms and subject to the conditions set forth in
the Second Amendment to Participation Agreement, including without limitation,
the execution and delivery by Lessee of this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Lessee and Lessor hereby agree as follows:
1. DEFINITIONS, INTERPRETATION. All capitalized terms defined above and
elsewhere in this Amendment shall be used herein as so defined. Unless otherwise
defined herein, all other capitalized terms used herein shall have the
respective meanings given to those terms in Schedule 1.01 to the Participation
Agreement. The rules of construction set forth in Schedule 1.02 to the
Participation Agreement shall, to the extent not inconsistent with the terms of
this Amendment, apply to this Amendment and are hereby incorporated by
reference.
2. AMENDMENT TO THE FACILITY 2 LEASE AGREEMENT. The Facility 2 Lease
Agreement is hereby amended as follows:
(a) Subparagraphs 2.07(a) and 2.07(b) are hereby amended by changing
the introductory clause "As security for the Lessee Obligations," in each
to "As security for the Lessee Obligations under Facility 2."
(b) Subparagraph 3.07(a) is amended to read in its entirety as
follows:
(a) Lessee's Covenants. Subject to Paragraph 3.12 relating to
permitted contests, Lessee shall not create, incur, assume or permit
to exist any Lien or easement on or with respect to any of the
Facility 1 Property of any character, whether now owned or hereafter
acquired, except for the following ("Permitted Property Liens"):
(i) Liens in favor of a Lessor Party securing the Lessee
Obligations and other Lessor Liens;
(ii) Liens and easements in existence on the
Commencement Date to the extent reflected in the title
insurance policies delivered to Agent pursuant to Paragraph
3.02 of and Schedule 3.02 to the Participation Agreement and
approved by Lessor;
(iii) Liens for taxes or other Governmental Charges not
at the time delinquent or thereafter payable without penalty;
B-2
32
(iv) Liens of carriers, warehousemen, mechanics,
materialmen and vendors and other similar Liens imposed by law
incurred in the ordinary course of business for sums not
overdue;
(vi) Easements granted or created in connection with and
reasonably necessary for the construction of the New
Improvements as approved by Lessor; and
(vi) Lessor Liens.
Subject to Paragraph 3.12 relating to permitted contests, Lessee
shall promptly (A) pay all Indebtedness of Lessee and other
obligations prior to the time the non-payment thereof would give
rise to a Lien on the Facility 1 Property and (B) discharge, at its
sole cost and expense, any Lien on the Facility 1 Property which is
not a Permitted Facility 1 Property Lien.
(c) Subparagraphs 5.01(e) and 5.01(h) are hereby amended by changing
the amount "$2,500,000" wherever it appears therein to "$10,000,000".
(d) Schedule 3.03 is amended by changing the percentage "37.5%"
appearing in clause (iii) thereof to "20.0%".
(e) Exhibit A(2) is amended by releasing and deleting therefrom the
property described in Part 1 (Tract 2, 3940 and 0000 X. Xxxxx Xxxxxx) and
Part 3 (Tract 5, 00 Xxxxxxxxxxxx Xxxxx), and Exhibit A(1) is amended by
releasing and deleting therefrom that certain portion of Part 1 (Tract 1,
0000 X. Xxxxx Xx.) subject to Lot Line Adjustment Permit No. AT 00-00-000
recorded on March 8, 2001 in the Official Records of Santa Xxxxx County,
California, as Instrument No. 15585476, all of which released and deleted
properties are more particularly described in Exhibit A hereto.
3. EFFECTIVE DATE. The amendments effected by Paragraph 2 above shall
become effective on the "Effective Date" as defined in the Second Amendment to
Participation Agreement, subject to satisfaction of the conditions set forth in
Paragraph 5 thereof.
4. EFFECT OF THIS AMENDMENT. On and after the Effective Date, each
reference in the Facility 2 Lease Agreement and the other Operative Documents to
the Facility 2 Lease Agreement shall mean the Facility 2 Lease Agreement as
amended hereby. Except as specifically amended above, (a) the Facility 2 Lease
Agreement and the other Operative Documents shall remain in full force and
effect and are hereby ratified and affirmed and (b) the execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power, or remedy of Lessor, the Participants
or Agent, nor constitute a waiver of any provision of the Facility 2 Lease
Agreement or any other Operative Document.
5. MISCELLANEOUS.
(a) Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
taken together
B-3
33
shall constitute one and the same instrument. The signature page and
acknowledgment of any counterpart may be removed therefrom and attached to
any other counterpart to evidence execution thereof by all of the parties
hereto without affecting the validity thereof.
(b) Headings. Headings in this Amendment are for convenience of
reference only and are not part of the substance hereof.
(c) Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of California without reference
to conflicts of law rules.
[The signature page follows.]
B-4
34
IN WITNESS WHEREOF, Lessee and Lessor have caused this Amendment to be
executed as of the day and year first above written.
LESSEE: NOVELLUS SYSTEMS, INC.
By:_________________________________
Name:____________________________
Title:_____________________________
LESSOR: ABN AMRO LEASING, INC.
By:_________________________________
Name:____________________________
Title:_____________________________
B-5
35
STATE OF __________________________________)
)
COUNTY OF _________________________________)
On _________ 2001, before me, _______________________, a Notary
Public in and for the State of California, personally appeared
_______________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL]
__________________________________________
36
STATE OF __________________________________)
)
COUNTY OF _________________________________)
On ___________, 2001, before me, _______________________, a
Notary Public in and for the State of California, personally appeared
_______________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL]
__________________________________________
37
EXHIBIT A TO
FIRST AMENDMENT TO FACILITY 2 LEASE AGREEMENT,
AND PARTIAL RELEASE OF CONSTRUCTION DEED OF TRUST
WITH ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
38
EXHIBIT C
SECOND AMENDMENT TO
FACILITY 2 HEAD LEASE AGREEMENT
THIS SECOND AMENDMENT TO FACILITY 2 HEAD LEASE AGREEMENT (this
"Amendment"), dated as of April 13, 2001, is entered into by and between:
(1) LEASE PLAN NORTH AMERICA, INC., an Illinois corporation ("Head
Lessor"); and
(2) ABN AMRO LEASING, INC., an Illinois corporation ("Head Lessee").
RECITALS
A. Novellus Systems, Inc, ("Lessee"), Head Lessor, Head Lessee, each of
the financial institutions that are parties thereto as "Participants"
("Participants"), and ABN AMRO BANK, N.V., as agent for the Participants (in
such capacity, "Agent"), are parties to that certain Participation Agreement
dated as of August 31, 1998 (as amended by a First Amendment thereto dated as of
June 4, 1999, the "Participation Agreement"), pursuant to which Lessor and
Participants have provided to Lessee two lease facilities (individually,
"Facility 1" and "Facility 2" and, collectively, the "Facilities").
B. Pursuant to the Participation Agreement, Head Lessee and Head Lessor
executed a Facility 2 Head Lease Agreement dated as of August 31, 1998,
affecting certain real property located in Santa Xxxxx County, California,
described in Exhibit A thereto, as amended by a First Amendment to Facility 2
Head Lease Agreement dated as of June 4, 1999 (as so amended, the "Facility 2
Head Lease Agreement"). A memorandum of the Facility 2 Head Lease Agreement and
the First Amendment thereto were recorded in the Official Records of Santa Xxxxx
County, California, on September 1, 1998, as Document No. 14367290 and June 4,
1999, as Document No. 14845503 respectively.
C. Lessee now has requested Head Lessor, Head Lessee, Participants and
Agent to amend the Participation Agreement and certain of the other Operative
Documents (as defined in the Participation Agreement) to (1) remove from
Facility 2 certain of the property leased to Head Lessee thereunder and (2) make
certain other changes.
D. Pursuant to a Second Amendment to Participation Agreement dated as of
April 13, 2001 (the "Second Amendment to Participation Agreement") among Lessee,
Head Lessor, Head Lessee, Participants and Agent, Head Lessor, Head Lessee,
Participants and Agent have agreed to amend the Participation Agreement and the
other Operative Documents upon the terms and subject to the conditions set forth
in the Second Amendment to Participation Agreement, including without
limitation, the execution and delivery by Head Lessor and Head Lessee of this
Amendment.
C-1
39
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Lessee and Lessor hereby agree as follows:
1. DEFINITIONS, INTERPRETATION. All capitalized terms defined above and
elsewhere in this Amendment shall be used herein as so defined. Unless otherwise
defined herein, all other capitalized terms used herein shall have the
respective meanings given to those terms in Schedule 1.01 to the Participation
Agreement. The rules of construction set forth in Schedule 1.02 to the
Participation Agreement shall, to the extent not inconsistent with the terms of
this Amendment, apply to this Amendment and are hereby incorporated by
reference.
2.AMENDMENT TO THE FACILITY 2 HEAD LEASE AGREEMENT. The Facility 2 Head
Lease Agreement is hereby amended as follows:
Exhibit A(2) is amended by deleting therefrom the property
described in Part 1 (Tract 2, 3940 and 0000 X. Xxxxx Xxxxxx) and Part 3
(Tract 5, 00 Xxxxxxxxxxxx Xxxxx), and Exhibit A(1) is amended by
deleting therefrom that certain portion of Part 1 (Tract 1, 0000 X.
Xxxxx Xx.) subject to Lot Line Adjustment Permit No. AT 00-00-000
recorded on March 8, 2001 in the Official Records of Santa Xxxxx County,
California, as Instrument No. 15585476, all of which deleted properties
are more particularly described in Exhibit A hereto.
3. EFFECTIVE DATE. The amendments effected by Paragraph 2 above shall
become effective on the "Effective Date" as defined in the Second Amendment to
Participation Agreement, subject to satisfaction of the conditions set forth in
Paragraph 5 thereof.
4. EFFECT OF THIS AMENDMENT. On and after the Effective Date, each
reference in the Facility 2 Head Lease Agreement and the other Operative
Documents to the Facility 2 Head Lease Agreement shall mean the Facility 2 Head
Lease Agreement as amended hereby. Except as specifically amended above, (a) the
Facility 2 Head Lease Agreement and the other Operative Documents shall remain
in full force and effect and are hereby ratified and affirmed and (b) the
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power, or remedy of
Head Lessor, Head Lessee, the Participants or Agent, nor constitute a waiver of
any provision of the Facility 2 Head Lease Agreement or any other Operative
Document.
5. MISCELLANEOUS.
(a) Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument. The signature
page and acknowledgment of any counterpart may be removed therefrom and
attached to any other counterpart to evidence execution thereof by all of
the parties hereto without affecting the validity thereof.
C-2
40
(b) Headings. Headings in this Amendment are for convenience of
reference only and are not part of the substance hereof.
(c) Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of California without reference
to conflicts of law rules.
[The signature page follows.]
C-3
41
IN WITNESS WHEREOF, Head Lessor and Head Lessee have caused this
Amendment to be executed as of the day and year first above written.
HEAD LESSOR: LEASE PLAN NORTH AMERICA, INC.
By:_________________________________
Name:____________________________
Title:_____________________________
HEAD LESSEE: ABN AMRO LEASING, INC.
By:_________________________________
Name:____________________________
Title:_____________________________
C-4
42
STATE OF __________________________________)
)
COUNTY OF _________________________________)
On _________ 2001, before me, _______________________, a Notary
Public in and for the State of California, personally appeared
_______________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL]
__________________________________________
43
STATE OF __________________________________)
)
COUNTY OF _________________________________)
On ___________, 2001, before me, _______________________, a
Notary Public in and for the State of California, personally appeared
_______________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL]
__________________________________________
44
EXHIBIT A TO
SECOND AMENDMENT TO FACILITY 2 HEAD LEASE AGREEMENT
45
EXHIBIT D
FIRST AMENDMENT TO
ASSIGNMENT OF HEAD LEASE AGREEMENTS, SUBLEASE AGREEMENTS AND
PURCHASE AGREEMENTS
THIS FIRST AMENDMENT TO ASSIGNMENT OF HEAD LEASE AGREEMENTS, SUBLEASE
AGREEMENTS AND PURCHASE AGREEMENTS (this "Amendment"), dated as of April 13,
2001, is entered into by and between:
(1) ABN AMRO LEASING, INC., an Illinois corporation ("Lessor")
(2) ABN AMRO BANK N.V., as agent for the Participants under the
Participation Agreement referred to in Recital A below (in such capacity,
"Agent").
RECITALS
A. Novellus Systems, Inc, ("Lessee"), Lease Plan North America, Inc.
("Head Lessor"), Lessor, each of the financial institutions that are parties
thereto as "Participants" ("Participants"), and Agent, are parties to that
certain Participation Agreement dated as of August 31, 1998 (as amended by a
First Amendment thereto dated as of June 4, 1999, the "Participation
Agreement"), pursuant to which Lessor and Participants have provided to Lessee
two lease facilities (individually, "Facility 1" and "Facility 2" and,
collectively, the "Facilities").
B. Pursuant to the Participation Agreement, Lessor executed in favor of
Agent an Assignment Of Head Lease Agreements, Sublease Agreements And Purchase
Agreements dated as of August 31, 1998, affecting certain real property located
in Santa Xxxxx County, California, described in Exhibit A thereto (the
"Assignment of Lease Agreements"). The Assignment of Lease Agreements was
recorded in the Official Records of Santa Xxxxx County, California, on September
1, 1998, as Document No. 14367296.
C. Lessee now has requested Head Lessor, Lessor, Participants and Agent to
amend the Participation Agreement and certain of the other Operative Documents
(as defined in the Participation Agreement) to (1) remove from Facility 2
certain of the property leased to Lessee thereunder and (2) make certain other
changes.
D. Pursuant to a Second Amendment to Participation Agreement dated as of
April 13, 2001 (the "Second Amendment to Participation Agreement") among Lessee,
Head Lessor, Lessor, Participants and Agent, Head Lessor, Lessor, Participants
and Agent have agreed to amend the Participation Agreement and the other
Operative Documents upon the terms and subject to the conditions set forth in
the Second Amendment to Participation Agreement, including without limitation,
the execution and delivery by Lessor and Agent of this Amendment.
D-1
46
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Lessor and Agent hereby agree as follows:
1. DEFINITIONS, INTERPRETATION. All capitalized terms defined above and
elsewhere in this Amendment shall be used herein as so defined. Unless otherwise
defined herein, all other capitalized terms used herein shall have the
respective meanings given to those terms in Schedule 1.01 to the Participation
Agreement. The rules of construction set forth in Schedule 1.02 to the
Participation Agreement shall, to the extent not inconsistent with the terms of
this Amendment, apply to this Amendment and are hereby incorporated by
reference.
2. AMENDMENT TO THE ASSIGNMENT OF LEASE AGREEMENTS. The Assignment of
Lease Agreements is hereby amended as follows:
Exhibit A is amended by deleting therefrom the property described in
Part 2 (Tract 2, 3940 and 0000 X. Xxxxx Xxxxxx), Part 5 (Tract 5, 00
Xxxxxxxxxxxx Xxxxx), and that certain portion of Part 1 (Tract 1, 0000 X.
Xxxxx Xx.) subject to Lot Line Adjustment Permit No. AT 00-00-000 recorded
on March 8, 2001 in the Official Records of Santa Xxxxx County,
California, as Instrument No. 15585476, which deleted property is more
particularly described in Exhibit A hereto.
3. EFFECTIVE DATE. The amendments effected by Paragraph 2 above shall
become effective on the "Effective Date" as defined in the Second Amendment to
Participation Agreement, subject to satisfaction of the conditions set forth in
Paragraph 5 thereof.
4. EFFECT OF THIS AMENDMENT. On and after the Effective Date, each
reference in the Assignment of Lease Agreements and the other Operative
Documents to the Assignment of Lease Agreements shall mean the Assignment of
Lease Agreements as amended hereby. Except as specifically amended above, (a)
the Assignment of Lease Agreements and the other Operative Documents shall
remain in full force and effect and are hereby ratified and affirmed and (b) the
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power, or remedy of
Lessor, the Participants or Agent, nor constitute a waiver of any provision of
the Assignment of Lease Agreements or any other Operative Document.
5. MISCELLANEOUS.
(a) Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument. The signature
page and acknowledgment of any counterpart may be removed therefrom and
attached to any other counterpart to evidence execution thereof by all of
the parties hereto without affecting the validity thereof.
(b) Headings. Headings in this Amendment are for convenience of
reference only and are not part of the substance hereof.
D-2
47
(c) Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of California without reference
to conflicts of law rules.
[The signature page follows.]
D-3
48
IN WITNESS WHEREOF, Lessor and Agent have caused this Amendment to be
executed as of the day and year first above written.
LESSOR: ABN AMRO LEASING, INC.
By:_________________________________
Name:____________________________
Title:_____________________________
AGENT: ABN AMRO BANK N.V.
By:_________________________________
Name:____________________________
Title:_____________________________
X-0
00
XXXXX OF __________________________________)
)
COUNTY OF _________________________________)
On _________ 2001, before me, _______________________, a Notary
Public in and for the State of California, personally appeared
_______________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL]
__________________________________________
50
STATE OF __________________________________)
)
COUNTY OF _________________________________)
On ___________, 2001, before me, _______________________, a
Notary Public in and for the State of California, personally appeared
_______________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL]
__________________________________________
51
EXHIBIT A TO
FIRST AMENDMENT TO ASSIGNMENT OF HEAD LEASE AGREEMENTS,
SUBLEASE AGREEMENTS AND PURCHASE AGREEMENTS
52
EXHIBIT E
FIRST AMENDMENT TO, SUBSTITUTION OF TRUSTEE,
AND PARTIAL RELEASE OF,
CONSTRUCTION DEED OF TRUST
THIS FIRST AMENDMENT TO, SUBSTITUTION OF TRUSTEE, AND PARTIAL RELEASE OF,
CONSTRUCTION DEED OF TRUST (this "Amendment"), dated as of April 13, 2001, is
entered into by and between:
(1) ABN AMRO LEASING, INC., an Illinois corporation ("Lessor")
(2) ABN AMRO BANK N.V., as agent for the Participants under the
Participation Agreement referred to in Recital A below (in such capacity,
"Agent").
RECITALS
A. Novellus Systems, Inc, ("Lessee"), Lease Plan North America, Inc.
("Head Lessor"), Lessor, each of the financial institutions that are parties
thereto as "Participants" ("Participants"), and Agent are parties to that
certain Participation Agreement dated as of August 31, 1998 (as amended by a
First Amendment thereto dated as of June 4, 1999, the "Participation
Agreement"), pursuant to which Lessor and Participants have provided to Lessee
two lease facilities (individually, "Facility 1" and "Facility 2" and,
collectively, the "Facilities").
B. Pursuant to the Participation Agreement, Lessor executed in favor of
Agent a Construction Deed Of Trust dated as of August 31, 1998, affecting
certain real property located in Santa Xxxxx County, California, described in
Exhibit A thereto (the "Construction Deed Of Trust"). The Construction Deed Of
Trust was recorded in the Official Records of Santa Xxxxx County, California, on
September 1, 1998, as Document No. 14367297.
C. Lessee now has requested Head Lessor, Lessor, Participants and Agent to
amend the Participation Agreement and certain of the other Operative Documents
(as defined in the Participation Agreement) to (1) remove from Facility 2
certain of the property leased to Lessee thereunder and (2) make certain other
changes.
D. Pursuant to a Second Amendment to Participation Agreement dated as of
April 13, 2001 (the "Second Amendment to Participation Agreement") among Lessee,
Head Lessor, Lessor, Participants and Agent, Head Lessor, Lessor, Participants
and Agent have agreed to amend the Participation Agreement and the other
Operative Documents upon the terms and subject to the conditions set forth in
the Second Amendment to Participation Agreement, including without limitation,
the execution and delivery by Lessor and Agent of this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Lessor and Agent hereby agree as follows:
X-0
00
0. DEFINITIONS, INTERPRETATION. All capitalized terms defined above and
elsewhere in this Amendment shall be used herein as so defined. Unless otherwise
defined herein, all other capitalized terms used herein shall have the
respective meanings given to those terms in Schedule 1.01 to the Participation
Agreement. The rules of construction set forth in Schedule 1.02 to the
Participation Agreement shall, to the extent not inconsistent with the terms of
this Amendment, apply to this Amendment and are hereby incorporated by
reference.
2. SUBSTITUTION OF TRUSTEE AND PARTIAL RELEASE OF PROPERTY AND
AMENDMENT TO THE CONSTRUCTION DEED OF TRUST. Agent hereby substitutes itself as
trustee under the Construction Deed Of Trust in place of First American Title
Insurance Company. The Construction Deed Of Trust is hereby amended as follows:
Exhibit A is amended by releasing and deleting therefrom the
property described in Part 2 (Tract 2, 3940 and 0000 X. Xxxxx Xxxxxx),
Part 5 (Tract 5, 00 Xxxxxxxxxxxx Xxxxx), and that certain portion of Part
1 (Tract 1, 0000 X. Xxxxx Xx.) subject to Lot Line Adjustment Permit No.
AT 00-00-000 recorded on March 8, 2001 in the Official Records of Santa
Xxxxx County, California, as Instrument No. 15585476, which released and
deleted property is more particularly described in Exhibit A hereto.
3. EFFECTIVE DATE. The amendments effected by Paragraph 2 above shall
become effective on the "Effective Date" as defined in the Second Amendment to
Participation Agreement, subject to satisfaction of the conditions set forth in
Paragraph 5 thereof.
4. EFFECT OF THIS AMENDMENT. On and after the Effective Date, each
reference in the Construction Deed Of Trust and the other Operative Documents to
the Construction Deed Of Trust shall mean the Construction Deed Of Trust as
amended hereby. Except as specifically amended above, (a) the Construction Deed
Of Trust and the other Operative Documents shall remain in full force and effect
and are hereby ratified and affirmed and (b) the execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power, or remedy of Head Lessor, Lessor, the
Participants or Agent, nor constitute a waiver of any provision of the
Construction Deed Of Trust or any other Operative Document.
5. MISCELLANEOUS.
(a) Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument. The signature
page and acknowledgment of any counterpart may be removed therefrom and
attached to any other counterpart to evidence execution thereof by all of
the parties hereto without affecting the validity thereof.
(b) Headings. Headings in this Amendment are for convenience of
reference only and are not part of the substance hereof.
(c) Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of California without reference
to conflicts of law rules.
E-2
54
IN WITNESS WHEREOF, Lessor and Agent have caused this Amendment to be
executed as of the day and year first above written.
LESSOR: ABN AMRO LEASING, INC.
By:_________________________________
Name:____________________________
Title:_____________________________
AGENT AND ABN AMRO BANK N.V.
SUBSTITUTED TRUSTEE:
By:_________________________________
Name:____________________________
Title:_____________________________
X-0
00
XXXXX OF __________________________________)
)
COUNTY OF _________________________________)
On _________ 2001, before me, _______________________, a Notary
Public in and for the State of California, personally appeared
_______________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL]
__________________________________________
56
STATE OF __________________________________)
)
COUNTY OF _________________________________)
On ___________, 2001, before me, _______________________, a
Notary Public in and for the State of California, personally appeared
_______________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL]
__________________________________________
57
EXHIBIT A TO
FIRST AMENDMENT TO, SUBSTITUTION OF TRUSTEE,
AND PARTIAL RELEASE OF, CONSTRUCTION DEED OF TRUST
