LEASE AGREEMENT (LIVERMORE/PARCEL 6) BETWEEN LAM RESEARCH CORPORATION (“LRC”) AND BNP PARIBAS LEASING CORPORATION (“BNPPLC”) December 18, 2007
Exhibit 10.133
LEASE AGREEMENT
(LIVERMORE/PARCEL 6)
(LIVERMORE/PARCEL 6)
BETWEEN
XXX RESEARCH CORPORATION
(“LRC”)
(“LRC”)
AND
BNP PARIBAS LEASING CORPORATION
(“BNPPLC”)
(“BNPPLC”)
December 18, 2007
TABLE OF CONTENTS
| Page | ||||||||
| 1 | Term; Lease Obligations Deferred Until Completion of Initial Improvements; Termination Prior to Lease Commencement | 3 | ||||||
| (A) | Scheduled Term; Deferral of Obligations | 3 | ||||||
| (B) | Option of BNPPLC to Terminate | 3 | ||||||
| (C) | Automatic Termination | 4 | ||||||
| (D) | Extension of the Term | 4 | ||||||
| 2 | Use and Condition of the Property | 4 | ||||||
| (A) | Use | 4 | ||||||
| (B) | Condition of the Property | 5 | ||||||
| (C) | Consideration for and Scope of Waiver | 5 | ||||||
| 3 | Rent | 6 | ||||||
| (A) | Base Rent Generally | 6 | ||||||
| (B) | Calculation of and Due Dates for Base Rent | 6 | ||||||
| (1) Determination of Payment Due Dates Generally | 6 | |||||||
| (2) Special Adjustments to Base Rent Payment Dates and Periods | 6 | |||||||
| (3) Base Rent Formula | 6 | |||||||
| (C) | Additional Rent | 8 | ||||||
| (D) | Administrative Fees. | 8 | ||||||
| (E) | No Demand or Setoff | 8 | ||||||
| (F) | Default Interest and Order of Application | 8 | ||||||
| 4 | Nature of this Agreement | 8 | ||||||
| (A) | “Net” Lease Generally | 8 | ||||||
| (B) | No Termination | 9 | ||||||
| (C) | Characterization of this Lease | 9 | ||||||
| 5 | Payment of Executory Costs and Losses Related to the Property | 10 | ||||||
| (A) | Local Impositions | 10 | ||||||
| (B) | Increased Costs; Capital Adequacy Charges | 11 | ||||||
| (C) | LRC’s Payment of Other Losses; General Indemnification | 13 | ||||||
| (D) | Exceptions and Qualifications to Indemnities | 16 | ||||||
| (E) | Collection on Behalf of Participants | 19 | ||||||
| 6 | Items Included in the Property | 19 | ||||||
| 7 | Environmental | 20 | ||||||
| (A) | Environmental Covenants by LRC | 20 | ||||||
| (B) | Right of BNPPLC to do Remedial Work Not Performed by LRC | 20 | ||||||
| (C) | Environmental Inspections and Reviews | 21 | ||||||
| (D) | Communications Regarding Environmental Matters | 21 | ||||||
| 8 | Insurance Required and Condemnation | 22 | ||||||
| (A) | Liability Insurance | 22 | ||||||
| (B) | Property Insurance | 23 | ||||||
| (C) | Failure to Obtain Insurance | 23 | ||||||
| (D) | Condemnation | 24 | ||||||
| (E) | Waiver of Subrogation | 24 | ||||||
TABLE OF CONTENTS
(Continued)
(Continued)
| Page | ||||||||
| 9 | Application of Insurance and Condemnation Proceeds | 24 | ||||||
| (A) | Collection and Application of Insurance and Condemnation Proceeds Generally | 24 | ||||||
| (B) | Advances of Escrowed Proceeds to LRC | 25 | ||||||
| (C) | Right of LRC to Receive and Apply Remaining Proceeds Below a Certain Xxxxx | 00 | ||||||
| (X) | Special Provisions Applicable After the Term Expires or an Event of Default | 26 | ||||||
| (E) | LRC’s Obligation to Restore | 26 | ||||||
| (F) | Takings of All or Substantially All of the Property on or after the Completion Date | 26 | ||||||
| 10 | Additional Representations, Warranties and Covenants of LRC Concerning the Property | 27 | ||||||
| (A) | Operation and Maintenance | 27 | ||||||
| (B) | Debts for Construction, Maintenance, Operation or Development | 27 | ||||||
| (C) | Repair, Maintenance, Alterations and Additions | 27 | ||||||
| (D) | Permitted Encumbrances | 28 | ||||||
| (E) | Books and Records Concerning the Property | 28 | ||||||
| 11 | Assignment and Subletting by XXX | 00 | ||||||
| (A) | BNPPLC’s Consent Required | 28 | ||||||
| (B) | Standard for BNPPLC's Consent to Assignments and Certain Other Matters | 29 | ||||||
| (C) | Consent Not a Waiver | 29 | ||||||
| 12 | Assignment by BNPPLC | 29 | ||||||
| (A) | Restrictions on Transfers | 29 | ||||||
| (B) | Effect of Permitted Transfer or other Assignment by BNPPLC | 30 | ||||||
| 13 | BNPPLC’s Right to Enter and to Perform for LRC | 30 | ||||||
| (A) | Right to Enter | 30 | ||||||
| (B) | Performance for XXX | 00 | ||||||
| 00 | Xxxxxxxx | 00 | ||||||
| (X) | Traditional Lease Remedies | 30 | ||||||
| (B) | Foreclosure Remedies | 33 | ||||||
| (C) | Enforceability | 33 | ||||||
| (D) | Remedies Cumulative | 33 | ||||||
| 15 | Default by BNPPLC | 34 | ||||||
| 16 | Quiet Enjoyment | 34 | ||||||
| 17 | Surrender Upon Termination | 34 | ||||||
| 18 | Holding Over by LRC | 34 | ||||||
| 19 | Proprietary Information and Confidentiality | 35 | ||||||
| (A) | Proprietary Information | 35 | ||||||
| (B) | Confidentiality | 35 | ||||||
| 20 | Recording Memorandum | 36 | ||||||
(ii)
TABLE OF CONTENTS
(Continued)
(Continued)
| Page | ||||||||
| 21 | Independent Obligations Evidenced by Other Operative Documents | 36 | ||||||
Exhibits and Schedules
| Exhibit A | Legal Description | |
| Exhibit B | California Lien and Foreclosure Provisions |
(iii)
LEASE AGREEMENT
(LIVERMORE/PARCEL 6)
(LIVERMORE/PARCEL 6)
This LEASE AGREEMENT (LIVERMORE/PARCEL 6) (this “Lease”), dated as of December 18, 2007 (the
“Effective Date”), is made by and between BNP PARIBAS LEASING CORPORATION (“BNPPLC”), a Delaware
corporation, and XXX RESEARCH CORPORATION (“LRC”), a Delaware corporation.
RECITALS
Contemporaneously with the execution of this Lease, BNPPLC and LRC are executing a Common
Definitions and Provisions Agreement (Livermore/Parcel 6) dated as of the Effective Date (the
“Common Definitions and Provisions Agreement”), which by this reference is incorporated into and
made a part of this Lease for all purposes. As used in this Lease, capitalized terms defined in the
Common Definitions and Provisions Agreement and not otherwise defined in this Lease are intended to
have the respective meanings assigned to them in the Common Definitions and Provisions Agreement.
At the request of LRC and to facilitate the transactions contemplated in the other Operative
Documents, BNPPLC is acquiring the Land described in Exhibit A and any existing
improvements on the Land from KLA-Tencor Corporation (the “Prior Owner”) contemporaneously with
the execution of this Lease.
In anticipation of BNPPLC’s acquisition of the Land and other property described below, BNPPLC
and LRC have reached agreement as to the terms and conditions upon which BNPPLC is willing to lease
to LRC the Land and any existing Improvements and the Improvements to be constructed on the Land as
hereinafter provided, and by this Lease BNPPLC and LRC desire to evidence such agreement.
GRANTING CLAUSES
BNPPLC does hereby LEASE, DEMISE and LET unto LRC for the Term (as hereinafter defined) all
right, title and interest of BNPPLC, now owned or hereafter acquired, in and to:
(1) the Land, including all interests in the Land acquired by BNPPLC from the Prior
Owner;
(2) any and all Improvements;
(3) all easements and other rights appurtenant to the Land or to the Improvements; and
(4) (A) any land lying within the right-of-way of any street, open or proposed,
adjoining the Land, (B) any sidewalks and alleys adjacent to the Land, and (C) any strips
and gores between the Land and any abutting land that is not owned or being acquired by
BNPPLC.
BNPPLC’s interest in all property described in clauses (1) through (4) above is hereinafter
referred to collectively as the “Real Property”.
To the extent, but only to the extent, that assignable rights or interests in, to or under the
following have been or will be acquired by BNPPLC from the Prior Owner as described in Paragraph 6
below, BNPPLC also hereby grants and assigns to LRC for the term of this Lease the right to use and
enjoy (and, in the case of contract rights, to enforce) such rights or interests of BNPPLC:
(a) any goods, equipment, furnishings, furniture and other tangible personal property
of whatever nature that are owned by BNPPLC and located on the Real Property from time to
time and all renewals or replacements of or substitutions for any of the foregoing;
(b) the benefits, if any, conferred upon the owner of the Real Property by the
Permitted Encumbrances; and
(c) any permits, licenses, franchises, certificates, and other rights and privileges
against third parties related to the Real Property.
Such rights and interests of BNPPLC, whether now existing or hereafter arising, are hereinafter
collectively called the “Personal Property”. The Real Property and the Personal Property (including
any property described in Paragraph 6 below) are hereinafter sometimes collectively called the
“Property”.
However, the leasehold estate conveyed by this Lease and LRC’s rights hereunder are expressly
made subject and subordinate to the terms and conditions of this Lease, to the matters listed in
Exhibit B to the Closing Certificate (including the Existing Space Leases, if any, which
remain in effect upon the commencement of the Term) and all other Permitted Encumbrances, and to
any other claims or encumbrances not constituting Liens Removable by BNPPLC.
Without limiting the foregoing, it is understood that so long as LRC continues to be
entitled to possession of the Property pursuant to this Lease, LRC’s possession will extend to and
include (to the exclusion of BNPPLC) not only the Improvements, but also the Land (subject only to
BNPPLC’s limited right of entry on and subject to the terms and conditions set forth in this
Lease), and LRC will be entitled to any benefits conferred upon the owner of the Property by
Permitted Encumbrances, including the right to receive and retain rents as they become due under
any Existing Space Leases which remain in effect upon the commencement of the Term
and to otherwise enforce any such Existing Space Leases during the Term of this Lease.
Accordingly, it is the intent of the parties that BNPPLC will not assume or retain responsibility
for the condition of the Land or the Improvements or for any obligations undertaken by LRC under
the Permitted Encumbrances after the Term commences.
GENERAL TERMS AND CONDITIONS
The Property is leased by BNPPLC to LRC and is accepted and is to be used and possessed by LRC
upon and subject to the following terms and conditions:
1 Term; Lease Obligations Deferred Until Completion of Initial Improvements; Termination Prior
to Lease Commencement.
(A) Scheduled Term; Deferral of Obligations. The term of this Lease (the “Term”) will
commence on and include the Completion Date on which a Completion Notice is given by LRC to BNPPLC,
as is required by subparagraph 2(B) of the Construction Agreement when LRC substantially
completes the Construction Project, unless this Lease is terminated before the Completion Date as
provided in subparagraph 1(B) or subparagraph 1(C).
Unless extended as provided in subparagraph 1(D) or sooner terminated as expressly provided in
other provisions of this Lease, the Term will end on the first Business Day of January, 2015.
BNPPLC and LRC intend to be legally bound by this Lease when it is executed by them. They
also intend, however, that this Lease will not impose any payment obligations upon either of them
prior to the Completion Date. Accordingly, neither LRC nor BNPPLC will have any obligation to make
any payments under this Lease until the Completion Date, and if this Lease terminates before the
Completion Date pursuant to subparagraph 1(B) or subparagraph 1(C), the Term will never commence
and neither party will have any obligation for payments by reason of this Lease following the
termination.
Nothing in this subparagraph 1(A) nor any other provision of this Lease will defer or
terminate the rights and obligations of the parties under the other Operative Documents. Unlike
this Lease, the other Operative Documents may, when executed, immediately impose payment
obligations upon BNPPLC and LRC.
(B) Option of BNPPLC to Terminate. BNPPLC will have the option to terminate this
Lease, which BNPPLC may exercise by notice to LRC, at any time after any 97-10/Meltdown Event or
after BNPPLC’s receipt of a Pre-lease Force Majeure Event Notice. Such option may be exercised by
BNPPLC as it deems appropriate in its sole and absolute discretion.
(C) Automatic Termination. If LRC elects to accelerate the Designated Sale
Date (as
provided in the definition thereof in the Common Definitions and Provisions Agreement) prior
to the Completion Date, or if a Termination of LRC’s Work occurs under and as provided in the
Construction Agreement before the Completion Date, then this Lease will terminate automatically
before the Term begins.
(D) Extension of the Term. The Term may be extended at the option of LRC for up to two
successive periods of five years each; provided, however, that prior to each such extension the
following conditions must have been satisfied: (i) LRC must have delivered a notice of its election
to exercise the option at least one hundred eighty days prior to the end of the Term, and prior to
the commencement of any such extension BNPPLC and LRC must have agreed in writing upon, and
received the written consent and approval of BNPPLC’s Parent and all Participants to, (a) a
corresponding extension of the date specified in clause (1) of the definition of Designated Sale
Date in the Common Definitions and Provisions Agreement, and (b) an adjustment to the Rent that LRC
will be required to pay during the extension, it being expected that the Rent for the extension may
be different than the Rent required for the original Term or any prior extension, and it being
understood that the Rent for any extension must in all events be satisfactory to both BNPPLC and
LRC, each in its sole and absolute discretion; (ii) at the time of LRC’s exercise of its option to
extend, no Default has occurred and is continuing and no Default will result from the extension;
(iii) immediately prior to any such extension, this Lease must then remain in effect; and (iv) if
this Lease has been assigned by LRC, then LRC must have executed a guaranty (or confirmed an
existing guaranty, if applicable), guaranteeing LRC’s assignee’s obligations under the Operative
Documents throughout such extended Term. With respect to the condition that BNPPLC and LRC must
have agreed upon the Rent required for any extension of the Term, neither LRC nor BNPPLC is willing
to submit itself to a risk of liability or loss of rights hereunder for being judged unreasonable.
Accordingly, LRC and BNPPLC will each have sole and absolute discretion in making its
determination, and both LRC and BNPPLC hereby disclaim any obligation express or implied to be
reasonable in negotiating the Rent for any such extension. Similarly, it is understood that
BNPPLC’s Parent and all Participants will each have sole and absolute discretion to give, or
decline to give, consents and approvals required for any extension of the Term, and none of them
will have any obligation express or implied to be reasonable in deciding whether to give such
consents and approvals. Subject to the changes to the Rent and satisfaction of the other
conditions listed in this subparagraph, if LRC exercises its option to extend the Term as provided
in this subparagraph, this Lease will continue in full force and effect, and the leasehold estate
hereby granted to LRC will continue without interruption and without any loss of priority over
other interests in or claims against the Property that may be created or arise after the Effective
Date and before the extension.
2 Use and Condition of the Property.
(A) Use. Subject to the Permitted Encumbrances, LRC may use and occupy the
Property during the Term, but only for the following purposes and other lawful purposes
incidental thereto:
(1) uses and operations related to LRC’s business as conducted as of the Effective
Date, including office, manufacturing and research and development; and
(2) other lawful purposes approved from time to time by BNPPLC, which approval will
not be unreasonably withheld after completion of the Construction Project (it being
understood, however, that BNPPLC’s withholding of such approval will be reasonable if BNPPLC
determines in good faith that giving the approval may materially increase BNPPLC’s risk of
liability for any existing or future environmental problem).
The foregoing provisions of this subparagraph will not prevent a tenant under an Existing Space
Lease executed prior to the Effective Date from using the space covered thereby for purposes
expressly authorized by the terms and conditions of such Existing Space Lease.
(B) Condition of the Property. LRC acknowledges that it has carefully and fully
inspected the Property and accepts the Property in its present state, AS IS, and without
any representation or warranty, express or implied, as to the condition of such property or as to
the use which may be made thereof. LRC also accepts the Property without any covenant,
representation or warranty, express or implied, by BNPPLC or its Affiliates regarding the title
thereto or the rights of any parties in possession of any part thereof, except as expressly set
forth in Paragraph 16. BNPPLC will not be responsible for any latent or other defect or change of
condition in the Land, Improvements or other Property or for any violations with respect thereto of
Applicable Laws. Further, BNPPLC will not be required to furnish to LRC any facilities or services
of any kind, including water, phone, sewer, steam, heat, gas, air conditioning, electricity, light
or power.
(C) Consideration for and Scope of Waiver. The provisions of subparagraph 2(B) have
been negotiated by BNPPLC and LRC as being consistent with the Rent payable under this Lease, and
such provisions are intended to be a complete exclusion and negation of any representations or
warranties of BNPPLC or its Affiliates, express or implied, with respect to the Property that may
arise pursuant to any law now or hereafter in effect or otherwise, except as expressly set forth
herein.
However, such exclusion of representations and warranties by BNPPLC is not intended to
impair any representations or warranties made by other parties, including any architects, engineers
or contractors engaged to work on the Construction Project, the benefit of which may
pass to LRC during the Term because of the definition of Personal Property and Property above.
3 Rent.
(A) Base Rent Generally. On each Base Rent Date through the end of the Term, LRC must
pay BNPPLC rent (“Base Rent”), calculated as provided below. Each payment of Base Rent must be
received by BNPPLC no later than 11:00 a.m. (Central time) on the date it becomes due; if received
after 11:00 a.m. (Central time) it will be considered for purposes of this Lease as received on the
next following Business Day.
(B) Calculation of and Due Dates for Base Rent. Payments of Base Rent will be
calculated and become due as follows:
(1) Determination of Payment Due Dates Generally. For Base Rent Periods
subject to a LIBOR Election of six months, Base Rent will be payable in two installments,
with the first installment becoming due on the Base Rent Date that occurs on the first
Business Day of the third calendar month following the commencement of such Base Rent
Period, and with the second installment becoming due on the Base Rent Date upon which the
Base Rent Period ends. For all other Base Rent Periods, Base Rent will be due in one
installment on the Base Rent Date upon which the Base Rent Period ends.
(2) Special Adjustments to Base Rent Payment Dates and Periods.
Notwithstanding the foregoing, if LRC or any Applicable Purchaser purchases BNPPLC’s
interest in the Property pursuant to the Purchase Agreement, any accrued unpaid Base Rent
and all outstanding Additional Rent will be due on the date of purchase in addition to the
purchase price and other sums due to BNPPLC under the Purchase Agreement.
(3) Base Rent Formula. Each installment of Base Rent payable for any Base Rent
Period will equal the sum of:
(a) the product of:
| • | the difference computed by subtracting Losses (if any) that BNPPLC suffered or incurred prior to the Term and that qualify as Pre-lease Force Majeure Losses, from the Lease Balance on the first day of such Base Rent Period, times | ||
| • | the Collateral Percentage for such Base Rent Period (which is expected to be 100% unless the parties agree to a reduction by a written amendment of the Pledge |
| Agreement), times |
| • | the sum of (a) the Secured Spread for such Base Rent Period, plus (b) LIBOR for such Base Rent Period, times | ||
| • | the number of days in such Base Rent Period from the preceding Base Rent Date to the Base Rent Date upon which such period ends, divided by | ||
| • | three hundred sixty, plus |
(b) the product of:
| • | the difference computed by subtracting Losses (if any) that BNPPLC suffered or incurred prior to the Term and that qualify as Pre-lease Force Majeure Losses, from the Lease Balance on the first day of such Base Rent Period, times | ||
| • | 100% minus the Collateral Percentage for such Base Rent Period, times | ||
| • | the sum of (a) the Unsecured Spread for such Base Rent Period, plus (b) LIBOR for such Base Rent Period, times | ||
| • | the number of days in such Base Rent Period from the preceding Base Rent Date to the Base Rent Date upon which such period ends, divided by | ||
| • | three hundred sixty. |
Assume, only for the purpose of illustration: that as of the first day of a Base Rent
Period the Lease Balance is $10,000,000; that no Pre-lease Force Majeure Losses have
occurred; that LIBOR for such Base Rent Period equals 4%; that the Secured Spread for such
period is forty basis points (40/100 of 1%); that the Unsecured Spread for such period is
one hundred basis points (100/100 of 1%); that the Collateral Percentage is 100%; and that
such Base Rent Period contains exactly thirty days. Under such assumptions, Base Rent for
the hypothetical Base Rent Period will equal:
{$10,000,000 x (100% x [0.40% + 4%]) x 30/360} +
{$10,000,000 x ( [100% — 100%] x [1% + 4%]) x 30/360} =
$36,666
{$10,000,000 x ( [100% — 100%] x [1% + 4%]) x 30/360} =
$36,666
(C) Additional Rent. All amounts which LRC is required to pay to or on behalf of
BNPPLC pursuant to this Lease, together with every charge, premium, interest and cost set forth
herein which may be added for nonpayment or late payment thereof, will constitute rent (all such
amounts, other than Base Rent, are herein called “Additional Rent”; and, collectively, Base Rent
and Additional Rent are herein sometimes called “Rent”). It is understood, however, that neither
“Additional Rent” nor “Rent,” as such terms are used in this Lease, will include any Supplemental
Payment required by the Purchase Agreement.
(D) Administrative Fees. In addition to other amounts payable by LRC hereunder, on or
before each anniversary of the Effective Date after the Completion Date and prior to the Designated
Sale Date, LRC must pay BNPPLC an annual administrative fee (an “Administrative Fee”) in the amount
confirmed by the Closing Letter. Each payment of an Administrative Fee will represent Additional
Rent for the first Base Rent Period during which it first becomes due.
(E) No Demand or Setoff. Except as expressly provided herein, LRC must pay all Rent
without notice or demand and without counterclaim, deduction, setoff or defense.
(F) Default Interest and Order of Application. All Rent will bear interest, if not
paid when first due, at the Default Rate in effect from time to time from the date due until paid;
provided, that nothing herein contained will be construed as permitting the charging or collection
of interest at a rate exceeding the maximum rate permitted under Applicable Laws. BNPPLC may apply
any amounts paid by or on behalf of LRC against any Rent then past due in the order the same became
due or in such other order as BNPPLC elects.
4 Nature of this Agreement.
(A) “Net” Lease Generally. Subject only to the exceptions listed in subparagraph 5(D)
below, it is the intention of BNPPLC and LRC that Base Rent and other payments herein specified
will be absolutely net to BNPPLC and that LRC must pay all costs, expenses and obligations of every
kind relating to the Property or this Lease which may arise or become due. Further, it is
understood that all amounts payable by LRC to BNPPLC under this Lease and the other Operative
Documents are expressed as minimum payments to be made net of any deduction or withholding required
under any Applicable Laws.
(B) No Termination. Except as expressly provided in this Lease itself, this
Lease will not terminate, nor will LRC have any right to terminate this Lease, nor will LRC be
entitled to any abatement of or setoff against the Rent, nor will the obligations of LRC under this
Lease be excused, for any reason whatsoever, including any of the following: (i) any damage to or
the destruction of all or any part of the Property from whatever cause, (ii) the taking of the
Property
or any portion thereof by eminent domain or otherwise for any reason, (iii) the
prohibition, limitation or restriction of LRC’s use or development of all or any portion of the Property or
any interference with such use by governmental action or otherwise, (iv) any eviction of LRC or of
anyone claiming through or under LRC, (v) any default or breach on the part of BNPPLC under this
Lease or any of the other Operative Documents or any other agreement to which BNPPLC and LRC are
parties, (vi) the inadequacy in any way whatsoever of the design, construction, assembly or
installation of any improvements, fixtures or tangible personal property included in the Property
(it being understood that BNPPLC has not made, does not make and will not make any representation
express or implied as to the adequacy thereof), (vii) any latent or other defect in the Property or
any change in the condition thereof or the existence with respect to the Property of any violations
of Applicable Laws, (viii) LRC’s ownership of any interest in the Property, (ix) any breach of an
Existing Space Lease by the tenant thereunder, or (x) any other cause, whether similar or
dissimilar to the foregoing, any existing or future law to the contrary notwithstanding. It is the
intention of the parties hereto that the obligations of LRC hereunder be separate and independent
of the covenants and agreements of BNPPLC, that Base Rent and all other sums payable by LRC
hereunder continue to be payable in all events and that the obligations of LRC hereunder continue
unaffected, unless the requirement to pay or perform the same have been terminated or limited
pursuant to an express provision of this Lease. Without limiting the foregoing, LRC waives to the
extent permitted by Applicable Laws, except as otherwise expressly provided herein, all rights to
which LRC may now or hereafter be entitled by law (including any such rights arising because of any
“warranty of suitability” or other warranties implied as a matter of law) (i) to quit, terminate or
surrender this Lease or the Property or any part thereof or (ii) to any abatement, suspension,
deferment or reduction of the Rent.
(C) Characterization of this Lease.
(1) Both LRC and BNPPLC intend that (a) for the purposes of determining the
proper accounting for this Lease by LRC, BNPPLC will be treated as the owner and landlord of
the Property and LRC will be treated as the tenant of the Property, and (b) for income tax
purposes and real estate, commercial law (including bankruptcy) and regulatory purposes, (i)
this Lease and the other Operative Documents will be treated as a financing arrangement,
(ii) BNPPLC will be deemed a lender making loans to LRC in the principal amount equal to the
Lease Balance, which loans are secured by the Property, and (iii) LRC will be treated as the
owner of the Property and will be entitled to all tax benefits available to the owner of the
Property. Consistent with such intent, by the provisions set forth in the attached
Exhibit B, LRC is granting to BNPPLC a lien upon and mortgaging and warranting title
to the Land and the Improvements and all rights, titles and interests of LRC in and to other
Property, WITH POWER OF SALE, to secure all obligations (monetary or otherwise) of LRC
arising under or in connection with any of the Operative Documents. Without limiting the
generality of the foregoing,
LRC and BNPPLC desire that their intent as set forth in this
subparagraph be given effect both in the context of any bankruptcy, insolvency or
receivership proceedings concerning
LRC or BNPPLC and in other contexts. Accordingly, LRC and BNPPLC expect that in the
event of any bankruptcy, insolvency or receivership proceedings affecting LRC or BNPPLC or
any enforcement or collection actions arising out of such proceedings, the transactions
evidenced by this Lease and the other Operative Documents will be characterized and treated
as loans made to LRC by BNPPLC, secured by the Property.
(2) Notwithstanding the foregoing, LRC acknowledges and agrees that none of BNPPLC or
the other Interested Parties has made, or will be deemed to have made, in the Operative
Documents or otherwise, any representations or warranties concerning how this Lease and the
other Operative Documents will be characterized or treated under applicable accounting
rules, income tax, regulatory, commercial or real estate law, bankruptcy, insolvency or
receivership law or any other rules or requirements concerning the tax, accounting or legal
characteristics of the Operative Documents. LRC further acknowledges and agrees that it is
sophisticated and knowledgeable regarding all such matters and that it has, as it deemed
appropriate, obtained from and relied upon its own professional accountants, counsel and
other advisors for such tax, accounting and legal advice concerning the Operative Documents.
(3) In any event, LRC will be required by subparagraph 5(C) below to indemnify and hold
harmless BNPPLC and other Interested Parties from and against all additional taxes that may
arise or become due because of any refusal of taxing authorities to recognize and give
effect to the intention of the parties as set forth in subparagraph 4(C)(1) (“Unexpected
Recharacterization Taxes”), including any additional income or capital gain tax that may
become due because of payments to BNPPLC of the purchase price upon any sale under the
Purchase Agreement resulting from any insistence of such taxing authorities that BNPPLC be
treated as the “true owner” of the Property for tax purposes (a “Forced
Recharacterization”); provided, however, LRC will not be required to pay or reimburse
Unexpected Recharacterization Taxes to the extent that they are, in any given tax year,
eliminated or offset by actual savings to BNPPLC because of additional depreciation
deductions or other tax benefits available to BNPPLC in the same year only by reason of the
Forced Recharacterization.
5 Payment of Executory Costs and Losses Related to the Property.
(A) Local Impositions. Subject only to the exceptions listed in subparagraph
5(D) below, LRC must pay or cause to be paid prior to delinquency all Local Impositions. If
requested by BNPPLC from time to time, LRC must furnish BNPPLC with receipts or other appropriate
evidence showing payment of all Local Impositions at least ten days prior to the applicable
delinquency date therefor.
Notwithstanding the foregoing, LRC may in good faith, by appropriate proceedings,
contest the validity, applicability or amount of any asserted Local Imposition, and pending
such contest LRC will not be deemed in default under any of the provisions of this Lease because of
the Local Imposition if (1) LRC diligently prosecutes such contest to completion in a manner
reasonably satisfactory to BNPPLC, and (2) LRC causes to be paid any amount adjudged by a court of
competent jurisdiction to be due, with all costs, penalties and interest thereon, promptly after
such judgment becomes final; provided, however, in any event each such contest must be concluded
and the contested Local Impositions must be paid by LRC prior to the earliest of (i) the date that
any criminal prosecution is instituted or overtly threatened against BNPPLC or its directors,
officers or employees because of the nonpayment thereof or (ii) the date any writ or order is
issued under which any property owned or leased by BNPPLC (including the Property) may be seized or
sold or any other action is taken or overtly threatened against BNPPLC or against any property
owned or leased by BNPPLC because of the nonpayment thereof, or (iii) any Designated Sale Date upon
which, for any reason, LRC or an Affiliate of LRC or any Applicable Purchaser does not purchase
BNPPLC’s interest in the Property pursuant to the Purchase Agreement for a price (when taken
together with any Supplemental Payment paid by LRC pursuant to the Purchase Agreement, in the case
of a purchase by an Applicable Purchaser) equal to the Break Even Price.
(B) Increased Costs; Capital Adequacy Charges. Subject only to the exceptions listed
in subparagraph 5(D) below:
(1) If there is any increase in the cost to BNPPLC’s Parent or any Participant (or
their respective Affiliates) of agreeing to make or making, funding or maintaining advances
to BNPPLC in connection with the Property because of any Banking Rules Change, then LRC must
from time to time (after receipt of a request from BNPPLC’s Parent or the Participant as
provided below) pay to BNPPLC for the account of BNPPLC’s Parent or the Participant, as the
case may be, additional amounts sufficient to compensate BNPPLC’s Parent or the Participant
(or their respective Affiliates) for such increased cost. A certificate as to the amount of
such increased cost, submitted to BNPPLC and LRC by BNPPLC’s Parent or the Participant, will
be conclusive and binding upon LRC, absent clear and demonstrable error.
(2) BNPPLC’s Parent or any Participant may demand additional payments (“Capital
Adequacy Charges”) if BNPPLC’s Parent or the Participant determines that any Banking Rules
Change affects the amount of capital to be maintained by it or its Affiliates and that the
amount of such capital is increased by or based upon the existence of advances made or to be
made to or for BNPPLC to permit BNPPLC to maintain BNPPLC’s investment in the Property. To
the extent that BNPPLC’s Parent or such Participant, as the case may be, provides a
certificate or notice to BNPPLC and to LRC
demanding Capital Adequacy Charges as
compensation for the additional capital requirements reasonably allocable to such investment
or advances, LRC must pay to BNPPLC for the account of BNPPLC’s Parent or such Participant the amount so demanded;
provided, however, such certificate or notice must set forth the nature of the occurrence
giving rise to such demand, the amount of the Capital Adequacy Charge to be paid, and the
method by which such amount was determined. Any such certificate or notice will conclusive
and binding upon LRC, absent clear and demonstrable error. In determining the amount of any
Capital Adequacy Charges, BNPPLC’s Parent or any Participant may use any reasonable
averaging and attribution method, applied on a non-discriminatory basis.
(3) Notwithstanding the foregoing provisions of this subparagraph 5(B), LRC will not be
obligated to pay any claim for compensation pursuant to this subparagraph 5(B) that arises
or accrues (a) as a result of any change in the rating assigned to BNPPLC’s Parent or any
Participant (or their respective Affiliates) making the claim by rating agencies or bank
regulators in regard to BNPPLC’s Parent’s or such Participant’s (or their respective
Affiliates’) creditworthiness, record keeping or failure to comply with Applicable
Laws(including U.S. banking regulations applicable to subsidiaries of a bank holding
company), or (b) more than nine months prior to the date LRC is notified of the intent of
BNPPLC’s Parent or such Participant to make a claim for such charges; provided, that if the
Banking Rules Change which results in a claim for compensation is retroactive, then the nine
month period will be extended to include the period of the retroactive effect of such
Banking Rules Change. Further, BNPPLC will cause BNPPLC’s Parent to use, and will ask any
Participant to use, commercially reasonable efforts to reduce or eliminate any claim for
compensation pursuant to this subparagraph 5(B), including a change in the office of
BNPPLC’s Parent or the Participant, as the case may be, through which it provides and
maintains Funding Advances if such change will avoid the need for, or reduce the amount of,
such compensation and will not, in the reasonable judgment of BNPPLC’s Parent or such
Participant, be otherwise disadvantageous to it. Nothing in this subparagraph will be
construed to require BNPPLC’s Parent or any Participant to create any new office through
which to make or maintain Funding Advances.
(4) Any amount required to be paid by LRC under this subparagraph 5(B) will be due ten
Business Days after a notice requesting such payment is received by LRC from BNPPLC’s Parent
or a Participant, as applicable.
(C) LRC’s Payment of Other Losses; General Indemnification. Subject only to
the exceptions listed in subparagraph 5(D) below:
(1) Agreement to Indemnify. As directed by BNPPLC, LRC must pay,
reimburse, indemnify,
defend, protect and hold harmless BNPPLC and all other Interested Parties from and against
all Losses (including Environmental Losses) asserted against or
incurred or suffered by any of them at any time and from time to time by reason of, in
connection with, arising out of, or in any way related to the following:
| • | the ownership or alleged ownership of any interest in the Property or the Rent; | ||
| • | the purchase, design, construction, preparation, installation, inspection, delivery, non-delivery, acceptance, rejection, possession, use, operation, maintenance, management, rental, lease, sublease, repossession, condition (including defects, whether or not discoverable), destruction, repair, alteration, modification, restoration, addition or substitution, storage, transfer of title, redelivery, return, sale or other disposition of all or any part of or interest in the Property; | ||
| • | the imposition of any Lien (or incurring of any liability to refund or pay over any amount as a result of any Lien) against all or any part of or interest in the Property; | ||
| • | any failure of the Property or LRC itself to comply with Applicable Laws; | ||
| • | Existing Space Leases or other Permitted Encumbrances or any violation thereof; | ||
| • | Hazardous Substance Activities, including those occurring prior to the Term; | ||
| • | the enforcement of the Operative Documents; | ||
| • | the making or maintenance of Funding Advances; | ||
| • | the breach by LRC of this Lease, any other Operative Document or any other document executed by LRC pursuant to or in connection with any Operative Document; or | ||
| • | any bodily or personal injury or death or property damage occurring in or upon or in the vicinity of the Property through any cause whatsoever. |
LRC’s obligations under this indemnity will apply whether or not any Interested Party is
also indemnified as to the applicable Loss by another Interested Party and whether or not
the Loss arises or accrues because of any condition of the Property or other circumstance
concerning the Property prior to the Effective Date.
Further, in the event, for income tax purposes, an Interested Party must include in its
taxable income any payment or reimbursement from LRC which is required by this indemnity (in
this provision, the “Original Indemnity Payment”), and yet the Interested Party is not
entitled during the same taxable year to a corresponding and equal deduction from its
taxable income for the Loss paid or reimbursed by such Original Indemnity Payment (in this
provision, the “Corresponding Loss”), then LRC must also pay to such Interested Party on
demand the additional amount (in this provision, the “Additional Indemnity Payment”) needed
to gross up the Original Indemnity Payment for any and all resulting additional income
taxes. That is, LRC must pay the minimum Additional Indemnity Payment needed so that the
Corresponding Loss (computed net of the reduction, if any, of the Interested Party’s income
taxes because of credits or deductions that are attributable to the Interested Party’s
payment or deemed payment of the Corresponding Loss and that are recognized for tax purposes
in the same taxable year during which the Interested Party must recognize the Original
Indemnity Payment as income) will not exceed the difference computed by subtracting (i) all
income taxes (determined for this purpose based on the highest marginal income tax rates
charged to corporations by federal, state and local tax authorities, as applicable, for the
relevant period or periods) imposed because of the receipt or constructive receipt of the
Original Indemnity Payment and the Additional Indemnity Payment, from (ii) the sum of the
Original Indemnity Payment and the Additional Indemnity Payment. (With regard to any payment
or reimbursement of an Original Indemnity Payment, “After Tax Basis” means that such payment
or reimbursement is or will be made together with the additional amount needed to gross up
such Original Indemnity Payment as described in this provision.)
(2) Scope of Indemnities and Releases. Every indemnity and release provided
in this Lease and the other Operative Documents for the benefit of BNPPLC or other
Interested Parties, including the indemnity set forth in subparagraph 5(C)(1), will apply
even if and when the subject matter of the indemnity or release arises out of or results
from the negligence or strict liability of BNPPLC or any other Interested Party.
Further, all such indemnities and releases will apply even if insurance obtained by LRC or
required of LRC by this Lease or the other Operative
Documents is not adequate to cover
Losses against or for which the indemnities and releases are provided. (However, LRC’s
liability for any failure to obtain insurance
required by this Lease or the other Operative Documents will not be limited to Losses
against which indemnities are provided, it being understood that the parties have agreed
upon insurance requirements for reasons that extend beyond providing a source of payment for
Losses against which BNPPLC and other Interested Parties may be indemnified by LRC.)
(3) Nonexclusive List of Costs Covered by Indemnity. Costs and expenses for which LRC
is responsible on an After Tax Basis pursuant to this subparagraph 5(C) will include all of
the following, except to the extent that the following are included in the Initial Advance
or in the calculation of any Break Even Price or Make Whole Amount paid to BNPPLC pursuant
to the Purchase Agreement:
| • | appraisal fees; | ||
| • | Uniform Commercial Code search fees; | ||
| • | filing and recording fees; | ||
| • | inspection fees and expenses; | ||
| • | brokerage fees and commissions; | ||
| • | survey fees; | ||
| • | title policy premiums and escrow fees; | ||
| • | any Breakage Costs; | ||
| • | Attorneys’ Fees incurred by BNPPLC with respect to the drafting, negotiation, administration or enforcement of this Lease or the other Operative Documents; and | ||
| • | all taxes (except Excluded Taxes) related to the Property or to the transactions contemplated in the Operative Documents. |
(4) Defense and Settlement of Indemnified Claims.
(a) By notice to LRC BNPPLC may direct LRC to assume on behalf of BNPPLC
or any other Interested Party and to conduct with due diligence and in good faith
the defense of and the response to any claim, proceeding or
investigation included
in or concerning any Loss for which LRC is responsible pursuant to subparagraph
5(C)(1). LRC must promptly comply with any such
direction using counsel selected by LRC and reasonably satisfactory to BNPPLC
to represent BNPPLC or the applicable Interested Party. In the event LRC fails to
promptly comply with any such direction from BNPPLC, BNPPLC or any other affected
Interested Party may contest or settle the claim, proceeding or investigation using
counsel of its own selection at LRC’s expense.
(b) Also, although subparagraph 5(D)(3) will apply to tort claims asserted
against any Interested Party related to the Property, the right of an Interested
Party to be indemnified pursuant to this subparagraph 5(C) for taxes or other
payments made to satisfy governmental requirements (“Government Mandated Payments”)
will not be conditioned in any way upon LRC having consented to or approved of, or
having been provided with an opportunity to defend against or contest, such
Government Mandated Payments.
(5) Payments Due. Any amount to be paid by LRC under this subparagraph 5(C) will be
due ten Business Days after a notice requesting such payment is given to LRC, subject to any
applicable contest rights expressly granted to LRC by other provisions of this Lease.
(6) Survival. LRC’s obligations under this subparagraph 5(C) will survive the
termination or expiration of this Lease with respect to Losses suffered by any Interested
Party on or prior to, or by reason of any actual or alleged occurrence or circumstances on
or prior to, the later of the dates upon which (a) this Lease terminates or expires, or (b)
LRC surrenders possession and control of the Property.
(D) Exceptions and Qualifications to Indemnities.
(1) Exceptions. BNPPLC acknowledges and agrees that nothing in Paragraph 4 or the
preceding subparagraphs of this Paragraph 5 will be construed to require LRC to pay or
reimburse:
| • | Excluded Taxes; or | ||
| • | Losses incurred or suffered by any Interested Party to the extent proximately caused by (and attributed by any applicable principles of comparative fault to) the Established Misconduct of that Interested Party; or | ||
| • | Losses that result from any Liens Removable by BNPPLC; or |
| • | Local Impositions or other Losses contested, if and so long as they are contested, by LRC in accordance with any of the provisions of this Lease or other Operative Documents which expressly authorize such contests; or | ||
| • | Losses incurred or suffered by any of the Participants in connection with the negotiation or execution of the Participation Agreement (or supplements making them parties thereto) or in connection with any due diligence Participants may undertake before entering into the Participation Agreement; or | ||
| • | transaction expenses or other Losses caused by or necessary to accomplish any conveyance by BNPPLC to BNPPLC’s Parent or a Qualified Affiliate which constitutes a Permitted Transfer only by reason of clause (4) of the definition of Permitted Transfer in the Common Definitions and Provisions Agreement . |
(2) Notice of Claims. If an Interested Party receives a written notice of a claim for
taxes or a claim alleging a tort or other unlawful conduct that the Interested Party
believes is covered by the indemnity in subparagraph 5(C)(1), then such Interested Party
will be expected to promptly furnish a copy of such notice to LRC. The failure to so
provide a copy of the notice will not excuse LRC from its obligations under subparagraph
5(C)(1); except that if such failure continues for more than fifteen Business Days after the
notice is received by such Interested Party and LRC is unaware of the matters described in
the notice, with the result that LRC is unable to assert defenses or to take other actions
which could minimize its obligations, then LRC will be excused from its obligation to
indemnify such Interested Party (and any Affiliate of such Interested Party) against Losses,
if any, which would not have been incurred or suffered but for such failure. For example,
if BNPPLC fails to provide LRC with a copy of a notice of an overdue tax obligation covered
by the indemnity set out in subparagraph 5(C)(1) and LRC is not otherwise already aware of
such obligation, and if as a result of such failure BNPPLC becomes liable for penalties,
interest and other additional costs covered by the indemnity in excess of the penalties,
interest and costs that would have accrued if LRC had been promptly provided with a copy of
the notice, then LRC will be excused from any obligation to BNPPLC (or any Affiliate of
BNPPLC) to pay such excess penalties, interest or other costs attributable to such delay.
(3) Settlements Without the Prior Consent of LRC.
(a) Except as otherwise provided in subparagraph 5(D)(3)(b), if any
Interested Party settles any tort claim for which it is entitled to be indemnified
by LRC without LRC’s consent (which consent will not be unreasonably withheld),
then LRC may, by notice given to the Interested Party no later than ten
Business Days after LRC is notified of the settlement, elect to pay Reasonable
Settlement Costs to the Interested Party in lieu of a payment or reimbursement of
actual settlement costs. (With respect to any tort claim asserted against an
Interested Party, “Reasonable Settlement Costs” means the maximum amount that a
prudent Person in the position of the Interested Party, but able to pay any amount,
might reasonably agree to pay to settle the tort claim, taking into account the
nature and amount of the claim, the relevant facts and circumstances known to such
Interested Party at the time of settlement and the additional Attorneys Fees’ and
other costs of defending the claim which could be anticipated but for the
settlement.) After making an election to pay Reasonable Settlement Costs with
regard to a particular tort claim and a particular Interested Party, LRC will have
no right to rescind or revoke the election, despite any subsequent determination
that Reasonable Settlement Costs exceed actual settlement costs.
(b) Notwithstanding the foregoing, LRC will have no right to elect to pay
Reasonable Settlement Costs in lieu of actual settlement costs if an Interested
Party settles claims without LRC’s consent at any time when an Event of Default has
occurred and is continuing or after a failure by LRC to conduct with due diligence
and in good faith the defense of and the response to any claim, proceeding or
investigation as provided in subparagraph 5(C)(4)(a).
(c) Except as provided in this subparagraph 5(D)(3), no settlement by any
Interested Party of any claim made against it will excuse LRC from any obligation to
indemnify the Interested Party against the settlement costs or other Losses suffered
by reason of, in connection with, arising out of, or in any way related to such
claim.
(4) Defense of Tax Claims. This Lease does not grant to LRC any right to
control the defense of or contest any tax claim for which an Interested Party may have a
right to indemnity under subparagraph 5(C), other than the right to contest Local
Impositions as provided in subparagraph 5(A), nor does this Lease grant to LRC the right to
inspect the income tax returns, books or records of any Interested Party. Nevertheless, if
a tax claim is asserted against BNPPLC for which it is entitled to be indemnified pursuant
to subparagraph 5(C), BNPPLC will consider in good faith any defenses and strategies
proposed by LRC with regard to such claim. Further, if any such tax claim is asserted
against BNPPLC which involves assertions that apply not only to the transactions
contemplated by this Lease, but also to other similar transactions in which BNPPLC has
participated, then BNPPLC will not settle the claim on a basis that results
in a
disproportionately greater tax burden with respect to the transactions contemplated herein
than with respect to such other similar transactions. For example, if taxing
authorities assert that both this Lease and other comparable lease agreements made by
BNPPLC are not financing arrangements as intended by the parties thereto, and on the basis
of such assertions the taxing authorities claim that BNPPLC owes income taxes which are not
Excluded Taxes, then BNPPLC will not settle the claim in a manner that would cause LRC’s
liability under subparagraph 5(C) to be disproportionately greater than the indemnity
obligation of another similarly situated tenant of BNPPLC under another lease agreement with
an indemnity provision comparable to subparagraph 5(C). Also, BNPPLC will not grant to
another tenant the right to dictate to BNPPLC the tax position BNPPLC must take in regard to
the Property or the Operative Documents, except that BNPPLC may include provisions
comparable to the foregoing in other leases to assure other tenants against a
disproportionately greater burden than LRC will bear in regard to any settlement of a tax
claim by BNPPLC.
(E) Collection on Behalf of Participants. BNPPLC may, on behalf of any Participant or
its Affiliates, collect any amount that becomes due from LRC to such Participant or its Affiliates
pursuant to subparagraph 5(B) or 5(C), in which case BNPPLC will be obligated to such Participant
in respect of the collected amount as provided in the Participation Agreement. Alternatively, as
provided in the Participation Agreement, BNPPLC may assign the right to collect any such amount to
such Participant, in which case the Participant will be entitled to collect the same directly from
LRC without in any way impairing or affecting BNPPLC’s rights to collect other amounts from LRC
under this Lease or the other Operative Documents.
6 Items Included in the Property. The Land and all Improvements on the Land from time to
time will be included in the “Property” covered by this Lease. Further, as provided in the
Construction Agreement, to the extent heretofore or hereafter acquired by LRC (in whole or in part)
with any portion of the Initial Advance or with any Construction Advances or with other funds for
which LRC receives reimbursement from the Initial Advance or Construction Advances, all
furnishings, furniture, chattels, permits, licenses, franchises, certificates and other personal
property of whatever nature will be deemed to have been acquired on behalf of BNPPLC by LRC and
will constitute “Property” covered by this Lease, as will all renewals or replacements of or
substitutions for any such Property. Upon request of BNPPLC, LRC will deliver to BNPPLC an
inventory describing all significant items of Personal Property (and, in the case of tangible
personal property, showing the make, model, serial number and location thereof), with a
certification by LRC that such inventory is true and complete and that all items specified in the
inventory are covered by this Lease free and clear of any Lien other than the Permitted
Encumbrances or Liens Removable by BNPPLC.
7 Environmental.
(A) Environmental Covenants by LRC.
(1) LRC will not conduct or permit others to conduct Hazardous Substance Activities on
the Property, except Permitted Hazardous Substance Use and Remedial Work.
(2) LRC will not discharge or permit the discharge of anything (including Permitted
Hazardous Substances) on or from the Property that would require any permit under applicable
Environmental Laws, other than (i) storm water runoff, (ii) waste water discharges through a
publicly owned treatment works, (iii) discharges that are a necessary part of any Remedial
Work, and (iv) other similar discharges consistent with the definition of Permitted
Hazardous Substance Use which do not significantly increase the risk of Environmental Losses
to BNPPLC, in each case in compliance with Environmental Laws.
(3) Following any discovery that Remedial Work is required by Environmental Laws or is
otherwise reasonably believed by BNPPLC to be required, LRC must promptly perform and
diligently and continuously pursue such Remedial Work.
(4) If requested by BNPPLC in connection with any Remedial Work required by this
subparagraph, LRC must retain environmental consultants reasonably acceptable to BNPPLC to
evaluate any significant new information generated during LRC’s implementation of the
Remedial Work and to discuss with LRC whether such new information indicates the need for
any additional measures that LRC should take to protect the health and safety of persons
(including employees, contractors and subcontractors and their employees) or to protect the
environment. LRC must implement any such additional measures to the extent required with
respect to the Property by Environmental Laws or otherwise reasonably believed by BNPPLC to
be required.
(B) Right of BNPPLC to do Remedial Work Not Performed by LRC. If LRC’s failure
to perform any Remedial Work required as provided in subparagraph 7(A) continues beyond the
Environmental Cure Period (as defined below), BNPPLC may, in addition to any other remedies
available to it, conduct all or any part of the Remedial Work. To the extent that Remedial Work is
done by BNPPLC pursuant to the preceding sentence (including any removal of Hazardous Substances),
the cost thereof will be a demand obligation owing by LRC to BNPPLC. As used in this subparagraph,
“Environmental Cure Period” means the period ending on the earliest of: (1) ninety days after LRC
is notified of the breach which must be cured within such period, (2) the date that any writ or
order is issued for the levy or sale of any property owned by BNPPLC (including the Property)
because of such breach, (3) the date that any criminal action is instituted or overtly threatened
against BNPPLC or any of its directors, officers or employees because of
or any Applicable
Purchaser does not purchase BNPPLC’s interest in the Property pursuant
to the Purchase Agreement for a net price to BNPPLC (when taken together with any Supplemental
Payment paid by LRC pursuant to the Purchase Agreement, in the case of a purchase by an Applicable
Purchaser) equal to the Break Even Price.
(C) Environmental Inspections and Reviews. BNPPLC reserves the right to retain
environmental consultants to review any report prepared by LRC or to conduct BNPPLC’s own
investigation to confirm whether LRC is complying with the requirements of this Paragraph 7. LRC
grants to BNPPLC and to BNPPLC’s agents, employees, consultants and contractors the right to enter
upon the Property during reasonable hours and after reasonable notice to inspect the Property and
to perform such tests as BNPPLC deems reasonably necessary or appropriate to review or investigate
Hazardous Substances in, on, under or about the Property or any discharge or reasonably suspected
discharge of Hazardous Substances into groundwater or surface water from the Property. LRC must
promptly reimburse BNPPLC for the fees of its environmental consultants and the costs of any such
inspections and tests. Without limiting the foregoing, BNPPLC will be entitled to reimbursement
for the fees of any consultant engaged as provided in this subparagraph or for the costs of any
inspections or test undertaken as provided in this subparagraph if BNPPLC engages the consultant or
orders the inspections or tests in any of the following circumstances: (1) an Event of Default has
occurred and is continuing at the time of such engagement, tests or inspections; (2) LRC has not
exercised the Purchase Option and BNPPLC has retained the consultant to establish the condition of
the Property prior to any conveyance thereof pursuant to the Purchase Agreement or to the
expiration of this Lease; (3) BNPPLC has retained the consultant to satisfy any regulatory
requirements applicable to BNPPLC or its Affiliates; (4) BNPPLC has retained the consultant because
it has reason to believe, and does in good faith believe, that a significant violation of
Environmental Laws concerning the Property has occurred; or (5) BNPPLC has retained the consultant
because BNPPLC has been notified of a possible violation of Environmental Laws concerning the
Property by any Governmental Authority having jurisdiction.
(D) Communications Regarding Environmental Matters.
(1) LRC must promptly advise BNPPLC of (i) any discovery known to LRC of any
event or circumstance which would render any representations of LRC in any of the Operative
Documents concerning environmental matters materially inaccurate or misleading if made at
the time of such discovery, (ii) any Remedial Work (or change in Remedial Work) required or
undertaken by LRC or its Affiliates in response to any (A) discovery of any Hazardous
Substances on, under or about the Property other than Permitted Hazardous Substances or (B)
any claim for damages resulting from Hazardous Substance Activities, (iii) any discovery
known to LRC of any occurrence or condition on any real property adjoining or in the
vicinity of the Property which would or could
reasonably be expected to cause the Property
or any part thereof to be subject to any ownership, occupancy, transferability or use
restrictions under Environmental Laws, or
(iv) any investigation or inquiry known to LRC of any failure or alleged failure by LRC
to comply with Environmental Laws affecting the Property by any Governmental Authority
responsible for enforcing Environmental Laws. In such event, LRC will deliver to BNPPLC
within thirty days after BNPPLC’s request, a preliminary written environmental plan setting
forth a general description of the action that LRC proposes to take with respect thereto, if
any, to bring the Property into compliance with Environmental Laws or to correct any breach
by LRC of this Paragraph 7, including any proposed Remedial Work, the estimated cost and
time of completion, the name of the contractor and a copy of the construction contract, if
any, and such additional data, instruments, documents, agreements or other materials or
information as BNPPLC may reasonably request.
(2) LRC will provide BNPPLC with copies of all material written communications with
Governmental Authorities relating to the matters listed in the preceding clause (1). LRC
will also provide BNPPLC with copies of any correspondence from third Persons which threaten
litigation over any significant failure or alleged significant failure of LRC to maintain or
operate the Property in accordance with Environmental Laws.
(3) Prior to LRC’s submission of a communication to any regulatory agency or third
party which causes, or potentially could cause (whether by implementation of or response to
said communication), a material change in the scope, duration, or nature of any Remedial
Work, LRC must, to the extent practicable, deliver to BNPPLC a draft of the proposed
submission (together with the proposed date of submission), and in good faith assess and
consider any comments of BNPPLC regarding the same. Promptly after BNPPLC’s request, LRC
will meet with BNPPLC to discuss the submission, will provide any additional information
reasonably requested by BNPPLC and will provide a written explanation to BNPPLC addressing
the issues raised by comments (if any) of BNPPLC regarding the submission.
8 Insurance Required and Condemnation.
(A) Liability Insurance. Throughout the Term LRC must maintain commercial
general liability insurance against claims for bodily and personal injury, death and property
damage occurring in or upon or resulting from any occurrence in or upon the Property under one or
more insurance policies that satisfy the Minimum Insurance Requirements. LRC must deliver and
maintain with BNPPLC for each liability insurance policy required by this Lease written
confirmation of the policy and the scope of the coverage provided thereby issued by the applicable
insurer or its authorized agent, which confirmation must also satisfy the Minimum
Insurance Requirements.
(B) Property Insurance.
(1) Throughout the Term LRC must keep all Improvements (including all alterations,
additions and changes made to the Improvements) insured against fire and other casualty
under one or more property insurance policies that satisfy the Minimum Insurance
Requirements. LRC must deliver and maintain with BNPPLC for each property insurance policy
required by this Lease written confirmation of the policy and the scope of the coverage
provided thereby issued by the applicable insurer or its authorized agent, which
confirmation must also satisfy the Minimum Insurance Requirements.
(2) If any of the Property is destroyed or damaged by fire, explosion, windstorm, hail
or by any other casualty against which insurance is required hereunder, (a) BNPPLC may, but
will not be obligated to, make proof of loss if not made promptly by LRC after notice from
BNPPLC, (b) each insurance company concerned is hereby authorized and directed to make
payment for such loss directly to BNPPLC (or, if so instructed by BNPPLC, to LRC) for
application as required by Paragraph 9, and (c) BNPPLC will be entitled, in its own name or
in the name of LRC or in the name of both, to settle, adjust or compromise any and all
claims for loss, damage or destruction under any policy or policies of insurance; except
that, if any such claim is for less than $500,000 and no Event of Default has occurred and
is continuing, during the Term LRC alone will have the right to settle, adjust or compromise
the claim as LRC deems appropriate; and, except that, during the Term, so long as no Event
of Default has occurred and is continuing, BNPPLC must provide LRC with at least forty-five
days notice of BNPPLC’s intention to settle any such claim before settling it unless LRC has
already approved of the settlement by BNPPLC.
(3) BNPPLC will not in any event or circumstances be liable or responsible for failure
to collect, or to exercise diligence in the collection of, any insurance proceeds.
(4) If any casualty results in damage to or loss or destruction of the Property, LRC
must give prompt notice thereof to BNPPLC and Paragraph 9 will apply.
(C) Failure to Obtain Insurance. If LRC fails to obtain any insurance or to
provide confirmation of any such insurance as required by this Lease, BNPPLC will be entitled (but
not required) to obtain the insurance that LRC has failed to obtain or for which LRC has not
provided the required confirmation and, without limiting BNPPLC’s other remedies under the
circumstances, BNPPLC may require LRC to reimburse BNPPLC for the cost of such insurance and to pay
interest thereon computed at the Default Rate from the date such cost was paid by
BNPPLC until the
date of reimbursement by LRC.
(D) Condemnation. Immediately upon obtaining knowledge of the institution of any
proceedings for the condemnation of the Property or any portion thereof, or any other similar
governmental or quasi-governmental proceedings arising out of injury or damage to the Property
or any portion thereof, each party will promptly notify the other (provided, however, BNPPLC will
have no liability for its failure to provide such notice) of the pendency of such proceedings. LRC
must, at its expense, diligently prosecute any such proceedings and must consult with BNPPLC, its
attorneys and experts and cooperate with them as reasonably requested in the carrying on or defense
of any such proceedings. BNPPLC is hereby authorized, in its own name or in the name of LRC or in
the name of both, at any time after the Term expires or when an Event of Default has occurred and
is continuing, but not otherwise without LRC’s prior consent, to execute and deliver valid
acquittances for, and to appeal from, any such judgment, decree or award concerning condemnation of
any of the Property. BNPPLC will not in any event or circumstances be liable or responsible for
failure to collect, or to exercise diligence in the collection of, any such proceeds, judgments,
decrees or awards.
Notwithstanding the foregoing provisions of this subparagraph, if condemnation proceeds
totaling not more than $500,000 are to be recovered as a result of a taking of less than all or
substantially all of the Property, LRC may directly receive and hold such proceeds during the Term,
so long as no Event of Default has occurred and is continuing and LRC applies such proceeds as
required herein.
(E) Waiver of Subrogation. LRC, for itself and for any Person claiming through it
(including any insurance company claiming by way of subrogation), waives any and every claim which
arises or may arise in its favor against BNPPLC or any other Interested Party to recover Losses for
which LRC is compensated by insurance or would be compensated by the insurance contemplated in this
Lease, but for any deductible or self-insured retention maintained under such insurance or but for
a failure of LRC to maintain the insurance as required by this Lease. LRC agrees to have such
insurance policies properly endorsed so as to make them valid notwithstanding this waiver, if such
endorsement is required to prevent a loss of insurance.
9 Application of Insurance and Condemnation Proceeds.
(A) Collection and Application of Insurance and Condemnation Proceeds
Generally. This Paragraph 9 will govern the application of proceeds received by BNPPLC or LRC
during the Term from any third party (1) under any property insurance policy as a result of damage
to the Property (including proceeds payable under any insurance policy covering the Property which
is maintained by LRC), (2) as compensation for any restriction placed upon the use or development
of the Property or for the condemnation of the Property or any portion thereof, or (3) because of
any judgment, decree or award for injury or damage to the Property (e.g.,damage
resulting from a
third party’s release of Hazardous Materials onto the Property); excluding, however, any funds paid
to BNPPLC by BNPPLC’s Parent, by another Affiliate of BNPPLC or by any Participant that is made to
compensate BNPPLC for any Losses BNPPLC may suffer or incur in connection with this Lease or the
Property. Except as provided in subparagraph 9(C),
LRC must promptly pay over to BNPPLC any insurance, condemnation or other proceeds covered by
this Paragraph 9 which LRC may receive from any insurer, condemning authority or other third party.
Except as provided in subparagraph 9(C), all proceeds covered by this Paragraph 9, including those
received by BNPPLC from LRC or third parties, will be applied as follows:
(1) First, proceeds covered by this Paragraph 9 will be used to reimburse BNPPLC for
any Attorneys’ Fees or other reasonable costs and expenses that BNPPLC incurred to collect
the proceeds.
(2) Second, the proceeds remaining after such reimbursement to BNPPLC (hereinafter, the
“Remaining Proceeds”) will be applied, as hereinafter more particularly provided, either as
a Qualified Prepayment or to reimburse LRC or BNPPLC for the actual out-of-pocket costs of
repairing or restoring the Property. Until, however, any Remaining Proceeds received by
BNPPLC are applied by BNPPLC as a Qualified Prepayment or applied by BNPPLC to reimburse
costs of repairs to or restoration of the Property pursuant to this Paragraph 9, BNPPLC will
hold and maintain such Remaining Proceeds as Escrowed Proceeds in an interest bearing
account, and all interest earned on such account will be added to and made a part of such
Escrowed Proceeds.
(B) Advances of Escrowed Proceeds to LRC. Except as otherwise provided below in this
Paragraph 9, BNPPLC will advance all Remaining Proceeds held by it as Escrowed Proceeds to
reimburse LRC for the actual out-of-pocket cost to LRC of repairing or restoring the Property in
accordance with the requirements of this Lease and the other Operative Documents as the applicable
repair or restoration, progresses. So long as any Lease Balance remains outstanding, however,
BNPPLC will not be required to pay Escrowed Proceeds to LRC in excess of the actual out-of-pocket
cost to LRC of the applicable repair or restoration, as evidenced by invoices or other
documentation reasonably satisfactory to BNPPLC, it being understood that BNPPLC may retain and,
after LRC has completed the applicable repair or restoration and been reimbursed for the
out-of-pocket cost thereof, apply any such excess (or so much thereof as is needed to reduce the
Lease Balance to zero) as a Qualified Prepayment.
(C) Right of LRC to Receive and Apply Remaining Proceeds Below a Certain Level.
If, during the Term, any condemnation of any portion of the Property or any casualty resulting in
the diminution, destruction, demolition or damage to any portion of the Property reduces the then
current “AS IS” market value of the Property by less than $2,000,000 and is not expected to result
in condemnation or insurance proceeds of more than $2,000,000, and if no Event of
Default has
occurred and is continuing, then BNPPLC will, upon LRC’s request, instruct the condemning authority
or insurer, as applicable, to pay the insurance or condemnation proceeds resulting therefrom
directly to LRC. LRC must apply any such proceeds as follows: (i) first, to reimburse BNPPLC for
any Attorneys’ Fees or other reasonable costs and expenses that BNPPLC
incurred in connection with the condemnation or casualty that resulted in such proceeds or the
pursuit of claims related thereto; (ii) second, to the repair or restoration of the Property to a
safe and secure condition and to a value of no less than the value before the taking or casualty;
and (iii) if any such proceeds remain after application as provided in the preceding clauses (i)
and (ii), then to make a Qualified Prepayment to BNPPLC.
(D) Special Provisions Applicable After the Term Expires or an Event of Default.
Notwithstanding the foregoing, after the Term expires or when any Event of Default has occurred and
is continuing, BNPPLC will be entitled to receive and collect all insurance, condemnation or other
proceeds governed by this Paragraph 9 and to apply all Remaining Proceeds, when and to the extent
deemed appropriate by BNPPLC in its sole discretion, either (A) to the reimbursement of LRC or
BNPPLC for the out-of-pocket cost of repairing or restoring the Property, or (B) as Qualified
Prepayments. Further, if the Remaining Proceeds paid to BNPPLC with respect to any damage or
destruction of the Property are reduced by reason of any insurance deductible or self-insured
retention, LRC must pay to BNPPLC upon demand an additional amount equal to the full amount of such
deductible or self insured retention, whereupon the additional amount paid will be added to the
Remaining Proceeds and applied as such by BNPPLC in accordance with the provisions of this Lease.
(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) either: (1) restore or improve
the Property or the remainder thereof to a value no less than the Lease Balance and to a reasonably
safe and sightly condition, or (2) restore the Property or remainder thereof to a reasonably safe
and sightly condition and pay to BNPPLC for application as a Qualified Prepayment the amount (if
any), as determined by BNPPLC, needed to reduce the Lease Balance to no more than the then current
“AS IS” market value of the Property or remainder thereof.
(F) Takings of All or Substantially All of the Property on or after the Completion
Date. In the event of any taking of all or substantially all of the Property on or after the
Completion Date, BNPPLC will be entitled to apply all Remaining Proceeds (or so much thereof as is
required to reduce the Lease Balance to zero) as a Qualified Prepayment. Any taking of so much of
the Property as, in BNPPLC’s good faith judgment, makes it impracticable to restore or improve the
remainder thereof as required by part (1) of the preceding subparagraph will be considered a taking
of substantially all the Property for purposes of this Paragraph 9.
10 Additional Representations, Warranties and Covenants of LRC Concerning the Property.
LRC represents, warrants and covenants as follows:
(A) Operation and Maintenance. LRC must operate and maintain the Property in a good
and workmanlike manner and in compliance with Applicable Laws in all material respects and pay or
cause to be paid all fees or charges of any kind due in connection therewith. (If LRC does not
promptly correct any failure of the Property to comply with Applicable Laws that is the subject of
a written complaint or demand for corrective action given by any Governmental Authority to LRC, or
to BNPPLC and forwarded by it to LRC, then for purposes of the preceding sentence, LRC will be
considered not to have maintained the Property “in compliance with all Applicable Laws in all
material respects” whether or not the noncompliance would be material in the absence of the
complaint or demand.) LRC will not use or occupy, or allow the use or occupancy of, the Property
in any manner which violates any Applicable Laws or which constitutes a public or private nuisance
or which makes void, voidable or cancelable any insurance then in force with respect to the
Property. To the extent that any of the following would, individually or in the aggregate,
materially and adversely affect the value of the Property or the use of the Property for purposes
permitted by this Lease, LRC will not, without BNPPLC’s prior consent: (i) initiate or permit any
zoning reclassification of the Property; (ii) seek any variance under existing zoning ordinances
applicable to the Property; (iii) use or permit the use of the Property in a manner that would
result in such use becoming a nonconforming use under applicable zoning ordinances or similar laws,
rules or regulations; (iv) execute or file any subdivision plat affecting the Property; or (v)
consent to the annexation of the Property to any municipality. LRC will not cause or permit any
drilling or exploration for, or extraction, removal or production of, minerals from the surface or
subsurface of the Property, and LRC will not do anything that could reasonably be expected to
significantly reduce the market value of the Property. If LRC receives a notice or claim from any
Governmental Authority that the Property is not in compliance with any Applicable Law, or that any
action may be taken against BNPPLC because the Property does not comply with any Applicable Law,
LRC must promptly furnish a copy of such notice or claim to BNPPLC.
(B) Debts for Construction, Maintenance, Operation or Development. LRC must cause all
debts and liabilities incurred in the construction, maintenance, operation or development of the
Property, including invoices for labor, material and equipment and all debts and charges for
utilities servicing the Property, to be promptly paid.
(C) Repair, Maintenance, Alterations and Additions. LRC must keep the Property
in good order, operating condition and appearance and must cause all necessary repairs, renewals
and replacements to be promptly made. LRC will not allow any of the Property to be materially
misused, abused or wasted. Further, LRC will not, without the prior consent of BNPPLC, make new
Improvements or alter Improvements in any way that could have a material, adverse impact
on the
value of the Property, after completion of the Work contemplated in the Construction Agreement.
Without limiting the foregoing, LRC must notify BNPPLC before making any significant
alterations to the Improvements, regardless of the impact on the value of the Property
expected to result from such alterations.
(D) Permitted Encumbrances. LRC must comply with and will cause to be performed all of
the covenants, agreements and obligations imposed upon the owner of any interest in the Property by
the Permitted Encumbrances. Without limiting the foregoing, LRC must cause all amounts to be paid
when due, the payment of which is secured by any Lien against the Property created by the Permitted
Encumbrances. Without the prior consent of BNPPLC, LRC will not enter into, initiate, approve or
consent to any modification of any Permitted Encumbrance that would create or expand or purport to
create or expand obligations or restrictions which would encumber BNPPLC’s interest in the Property
or be binding upon BNPPLC itself.
(E) Books and Records Concerning the Property. LRC must keep books and records that
are accurate and complete in all material respects for the Property and, subject to Paragraph 19,
must permit all such books and records (including all contracts, statements, invoices, bills and
claims for labor, materials and services supplied for the construction and operation of any
Improvements) to be inspected and copied by BNPPLC during reasonable business hours.
11 Assignment and Subletting by LRC.
(A) BNPPLC’s Consent Required. Without the prior consent of BNPPLC, LRC will not
assign, transfer, mortgage, pledge or hypothecate this Lease or any interest of LRC hereunder and
will not sublet all or any part of the Property, by operation of law or otherwise, except as
follows:
(1) During the Term, so long as no Event of Default has occurred and is continuing, LRC
may sublet (a) to Affiliates of LRC, or (b) any useable space in then existing and completed
building Improvements to Persons who are not LRC’s Affiliates, subject to the conditions
that (i) any such sublease by LRC must be made expressly subject and subordinate to the
terms hereof, (ii) the sublease must have a term equal to or less than the remainder of the
then effective Term of this Lease, and (iii) the use permitted by the sublease must be
expressly limited to uses consistent with subparagraph 2(A) or other uses approved in
advance by BNPPLC as uses that will not present any extraordinary risk of uninsured
environmental or other liability.
(2) During the Term, so long as no Event of Default has occurred and is
continuing, LRC may assign all of its rights under this Lease and the other Operative
Documents to an Affiliate of LRC, subject to the conditions that (a) the assignment must be
in writing and must unconditionally provide that the Affiliate assumes all of LRC’s
obligations hereunder and thereunder, and (b) LRC must execute an unconditional guaranty of
the obligations assumed by the Affiliate in form satisfactory to BNPPLC,
confirming (x) that notwithstanding the assignment LRC will remain primarily liable for
all of the obligations undertaken by LRC under the Operative Documents, (y) that such
guaranty is a guaranty of payment and performance and not merely of collection, and (z) that
LRC waives to the extent permitted by Applicable Law all defenses otherwise available to
guarantors or sureties.
(B) Standard for BNPPLC’s Consent to Assignments and Certain Other Matters. Consents
and approvals of BNPPLC which are required by this Paragraph 11 will not be unreasonably withheld,
but LRC acknowledges that BNPPLC’s withholding of such consent or approval will be reasonable if
BNPPLC determines in good faith that (1) giving the approval may increase BNPPLC’s risk of
liability for any existing or future environmental problem, (2) giving the approval is likely to
substantially increase BNPPLC’s administrative burden of complying with or monitoring LRC’s
compliance with the requirements of this Lease, or (3) any transaction for which LRC has requested
the consent or approval would negate LRC’s representations in the Operative Documents regarding
ERISA or cause any of the Operative Documents (or any exercise of BNPPLC’s rights thereunder) to
constitute a violation of any provision of ERISA. Further, LRC acknowledges that BNPPLC may
reasonably require, as a condition to giving its consent to any assignment by LRC, that LRC execute
an unconditional guaranty providing that LRC will remain primarily liable for all of the tenant’s
obligations hereunder and under other Operative Documents. Any such guaranty must be a guaranty of
payment and not merely of collection, must provide that LRC waives to the extent permitted by
Applicable Law all defenses otherwise available to guarantors or sureties, and must otherwise be in
a form satisfactory to BNPPLC.
(C) Consent Not a Waiver. No consent by BNPPLC to a sale, assignment, transfer,
mortgage, pledge or hypothecation of this Lease or LRC’s interest hereunder, and no assignment or
subletting of the Property or any part thereof in accordance with this Lease or otherwise with
BNPPLC’s consent, will release LRC from liability hereunder; and any such consent will apply only
to the specific transaction thereby authorized and will not relieve LRC from any requirement of
obtaining the prior consent of BNPPLC to any further sale, assignment, transfer, mortgage, pledge
or hypothecation of this Lease or any interest of LRC hereunder.
12 Assignment by BNPPLC.
(A) Restrictions on Transfers. Except by a Permitted Transfer, BNPPLC will not
assign, transfer, mortgage, pledge, encumber or hypothecate this Lease or the other Operative
Documents or any interest of BNPPLC in and to the Property during the Term without the prior
consent of LRC, which consent LRC may withhold in its sole discretion.
(B) Effect of Permitted Transfer or other Assignment by BNPPLC. If by a Permitted
Transfer BNPPLC sells or otherwise transfers the Property and assigns to the transferee all of
BNPPLC’s rights under this Lease and under the other Operative Documents, and if the
transferee expressly assumes all of BNPPLC’s obligations under this Lease and under the other
Operative Documents, then BNPPLC will thereby be released from any obligations arising after such
assumption under this Lease or under the other Operative Documents (other than any liability for a
breach of any continuing obligation to provide Construction Advances under the Construction
Agreement), and LRC must look solely to each successor in interest of BNPPLC for performance of
such obligations.
13 BNPPLC’s Right to Enter and to Perform for LRC.
(A) Right to Enter. BNPPLC and BNPPLC’s representatives may enter the Property for
the purpose of making inspections or performing any work BNPPLC is authorized to undertake by the
next subparagraph or for the purpose of confirming whether LRC has complied with the requirements
of this Lease or the other Operative Documents.
(B) Performance for LRC. If LRC fails to perform any act or to take any action
required of it by this Lease or the Closing Certificate, or to pay any money which LRC is required
by this Lease or the Closing Certificate to pay, then in addition to any other remedies specified
herein or otherwise available, BNPPLC may, perform or cause to be performed such act or take such
action or pay such money. Any expenses so incurred by BNPPLC, and any money so paid by BNPPLC, will
be a demand obligation owing by LRC to BNPPLC. Further, upon making such payment, BNPPLC will be
subrogated to all of the rights of the person, corporation or body politic receiving such payment.
But nothing herein will imply any duty upon the part of BNPPLC to do any work which under any
provision of this Lease LRC may be required to perform, and the performance thereof by BNPPLC will
not constitute a waiver of LRC’s default. BNPPLC may during the progress of any such work by BNPPLC
keep and store upon the Property all necessary materials, tools, and equipment. BNPPLC will not in
any event be liable for inconvenience, annoyance, disturbance, loss of business, or other damage to
LRC or the subtenants or invitees of LRC by reason of the performance of any such work, or on
account of bringing materials, supplies and equipment into or through the Property during the
course of such work, and the obligations of LRC under this Lease will not thereby be excused in any
manner.
14 Remedies.
(A) Traditional Lease Remedies. At any time after an Event of Default, BNPPLC
will
be entitled at BNPPLC’s option (and without limiting BNPPLC in the exercise of any other right
or remedy BNPPLC may have, and without any further demand or notice except as expressly described
in this subparagraph 14(A)), to exercise any one or more of the following remedies:
(1) By notice to LRC, BNPPLC may terminate LRC’s right to possession of the Property.
However, only a notice clearly and unequivocally confirming that BNPPLC
has elected to terminate LRC’s right of possession will be effective for purposes of
this provision.
(2) Upon termination of LRC’s right to possession as provided in the immediately
preceding subsection (1) and without further demand or notice, BNPPLC may re-enter the
Property in any manner not prohibited by Applicable Laws and take possession of all
improvements, additions, alterations, equipment and fixtures thereon and remove any persons
in possession thereof. Any personal property on the Land may be removed and stored in a
warehouse or elsewhere, and in such event the cost of any such removal and storage will be
at the expense and risk of and for the account of LRC.
(3) Upon termination of LRC’s right to possession as provided in the immediately
preceding subsection (1), this Lease will terminate and BNPPLC may recover from LRC damages
which include the following:
(a) the worth at the time of award of the unpaid Rent which had been earned at
the time of termination;
(b) costs and expenses actually incurred by BNPPLC to repair damage to the
Property that LRC was obligated to (but failed to) repair prior to the termination;
(c) the sum of the following (“Lease Termination Damages”):
1) the worth at the time of award of the amount by which the unpaid
Rent which would have been earned after termination until the time of award
exceeds the amount of such rental loss that LRC proves could have been
reasonably avoided;
2) the worth at the time of award of the amount by which the unpaid
Rent for the balance of the scheduled Term after the time of award exceeds
the amount of such rental loss that LRC proves could be reasonably avoided;
3) any other amount necessary to compensate BNPPLC for all
the detriment proximately caused by LRC’s failure to perform LRC’s obligations
under this Lease or which in the ordinary course of things would be likely
to result therefrom, including the costs and expenses of preparing and
altering the Property for reletting and all other costs and expenses of
reletting (including Attorneys’ Fees, advertising costs and brokers’
commissions), and
(d) such other amounts in addition to or in lieu of the foregoing as may be
permitted from time to time by applicable California law.
The “worth at the time of award” of the amounts referred to in subparagraph 14(A)(3)(a) and
subparagraph 14(A)(3)(c)1) will be computed by allowing interest at the Default Rate. The
“worth at the time of award” of the amount referred to in subparagraph 14(A)(3)(c)2) will be
computed by discounting such amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of award plus one percent (1%).
Notwithstanding the foregoing, the total Lease Termination Damages which BNPPLC may recover
from LRC will be limited in amount to the extent required, if any, to prevent the sum of
recoverable Lease Termination Damages, plus any Supplemental Payment that BNPPLC has
received or remains entitled to recover pursuant to the Purchase Agreement, from being more
than the Maximum Remarketing Obligation; provided, however, if a Supplemental Payment is
owed to BNPPLC according to the Purchase Agreement, but LRC fails to pay it, this limitation
upon BNPPLC’s right to recover Lease Termination Damages will be of no effect. For
purposes of this provision, “Maximum Remarketing Obligation” is intended to have the meaning
assigned to it in the Purchase Agreement and is intended to be computed as of the date any
award of Lease Termination Damages to BNPPLC as if such date was the Designated Sale Date.
(4) Even after a breach of this Lease or abandonment of the Property by LRC, BNPPLC may
continue this Lease in force and recover Rent as it becomes due. Accordingly, despite any
breach or abandonment by LRC, this Lease will continue in effect for so long as BNPPLC does
not terminate LRC’s right to possession, and BNPPLC may enforce all of BNPPLC’s rights and
remedies under this Lease, including the right to recover the Rent as it becomes due under
this Lease. LRC’s right to possession will not be deemed to have been terminated by BNPPLC
except pursuant to subparagraph 14(A)(1) hereof. The following will not constitute a
termination of LRC’s right to possession:
(a) acts of maintenance or preservation or efforts to relet the Property;
(b) the appointment of a receiver upon the initiative of BNPPLC to
protect BNPPLC’s interest under this Lease; or
(c) reasonable withholding of consent to an assignment or subletting, or
terminating a subletting or assignment by LRC.
(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 sale to foreclose its lien
and security interest granted in Exhibit B 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 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.\
(C) Enforceability. This Paragraph 14 will be enforceable to the maximum extent not
prohibited by Applicable Laws, and the unenforceability of any provision in this Paragraph will not
render any other provision unenforceable.
(D) Remedies Cumulative. No right or remedy herein conferred upon or reserved
to BNPPLC is intended to be exclusive of any other right or remedy, and each and every such right
and remedy will be cumulative and in addition to any other right or remedy given to BNPPLC under
this Lease or other Operative Documents or now or hereafter existing in favor of BNPPLC under
Applicable Laws, except as otherwise expressly provided in the last provision of subparagraph
14(A)(3) above. In addition to other remedies provided in this Lease, BNPPLC will be entitled, to
the extent permitted by Applicable Law or in equity, to injunctive relief in case of the violation,
or attempted or threatened violation, of any of the covenants, agreements, conditions or provisions
of this Lease, or to a decree compelling performance of any of the other covenants, agreements,
conditions or provisions of this Lease to be performed by LRC, or to any other remedy allowed to
BNPPLC at law or in equity. Nothing contained in this Lease will limit or prejudice the right of
BNPPLC to prove for and obtain in proceedings for bankruptcy or insolvency of LRC by reason of the
termination of this Lease, an amount equal to the maximum allowed by any statute or rule of law in
effect at the time when, and governing the proceedings in which, the damages are to be proved,
whether or not the amount be greater, equal to, or less than the amount of the loss or damages
referred to above. Without limiting the generality of the
foregoing, nothing contained herein will
modify, limit or impair any of the rights and remedies of BNPPLC under the Purchase Agreement.
However, to prevent a double recovery, BNPPLC acknowledges that BNPPLC’s right to recover Lease
Termination Damages may be limited by the last provision of subparagraph 14(A)(3) above in the
event BNPPLC collects or remains entitled to collect a Supplemental Payment as provided in the
Purchase Agreement.
15 Default by BNPPLC. If BNPPLC should default in the performance of any of its
obligations under this Lease, BNPPLC will have the time reasonably required, but in no event less
than thirty days, to cure such default after receipt of notice from LRC specifying such default and
specifying what action LRC believes is necessary to cure the default. BNPPLC’s failure to cure any
such default within such time permitted for cure may render BNPPLC liable to LRC for any monetary
damages proximately caused thereby, but as more specifically provided in subparagraph 4(B) above,
no such default will entitle LRC to terminate this Lease or excuse LRC from its obligation to pay
Rent.
16 Quiet Enjoyment. Provided LRC pays Base Rent and all Additional Rent payable hereunder
as and when due and payable and keeps and fulfills all of the terms, covenants, agreements and
conditions to be performed by LRC hereunder, BNPPLC will not during the Term disturb LRC’s
peaceable and quiet enjoyment of the Property; however, such enjoyment will be subject to the terms
and conditions of this Lease, to the Existing Space Leases and other Permitted Encumbrances and to
any other claims not constituting Liens Removable by BNPPLC. Any breach by BNPPLC of this
Paragraph will render BNPPLC liable to LRC for any monetary damages proximately caused thereby, but
as more specifically provided in subparagraph 4(B) above, no such breach will entitle LRC to
terminate this Lease or excuse LRC from its obligation to pay Rent.
17 Surrender Upon Termination. Unless LRC or an Applicable Purchaser is purchasing or has
purchased BNPPLC’s entire interest in the Property pursuant to the terms of the Purchase Agreement,
LRC must, upon the termination of LRC’s right to occupancy or expiration of the Term, surrender to
BNPPLC the Property, including Improvements constructed by LRC and fixtures and furnishings
included in the Property, free of all deferred maintenance, Hazardous Substances (including
Permitted Hazardous Substances) and tenancies and with all Improvements in substantially the same
condition as of the date the same were initially completed. Any movable furniture or movable
personal property belonging to LRC or any party claiming under LRC, if not removed at the time of
such termination and if BNPPLC so elects, will be deemed abandoned and become the property of
BNPPLC without any payment or offset therefor. If BNPPLC does not so elect, BNPPLC may remove such
property from the Property and store it at LRC’s risk and expense. LRC must bear the expense of
repairing any damage to the Property caused by such removal by BNPPLC or LRC.
18 Holding Over by LRC. Should LRC not purchase BNPPLC’s right, title and interest
in
the Property as provided in the Purchase Agreement, but nonetheless continue to hold the
Property after the termination of this Lease without objection by BNPPLC, whether such termination
occurs by lapse of time or otherwise, such holding over will constitute and be construed as a
tenancy from day to day only on and subject to all of the terms, provisions, covenants and
agreements on the part of LRC hereunder. No payments of money by LRC to BNPPLC after the
termination of this Lease will reinstate, continue or extend the Term of this Lease and no
extension of this Lease after the termination thereof will be valid unless and until
the same is reduced to writing and signed by both BNPPLC and LRC.
19 Proprietary Information and Confidentiality.
(A) Proprietary Information. LRC will have no obligation to provide proprietary
information (as defined in the next sentence) to BNPPLC, except and to the extent (1) expressly
required by other terms and conditions of the Operative Documents, or (2) requested by BNPPLC in
connection with any inspection of the Property pursuant to the various provisions hereof and, in
BNPPLC’s reasonable determination, required to allow BNPPLC to accomplish the purposes of such
inspection. (Before LRC delivers any such proprietary information in connection with any inspection
of the Property, LRC may require that BNPPLC confirm and ratify the confidentiality agreements
covering such proprietary information set forth herein.) For purposes of this Lease and the other
Operative Documents, “proprietary information” means LRC’s intellectual property, trade secrets and
other confidential information of value to LRC (including, among other things, information about
LRC’s manufacturing processes, products, marketing and corporate strategies) that (1) is received
by any representative of BNPPLC at the time of any on-site visit to the Property or (2) otherwise
delivered to BNPPLC by or on behalf of LRC and labeled “proprietary” or “confidential” or by some
other similar designation to identify it as information which LRC considers to be proprietary or
confidential.
(B) Confidentiality. BNPPLC will endeavor in good faith to use reasonable
precautions to keep confidential any proprietary information that BNPPLC may receive from LRC or
otherwise discover with respect to LRC or LRC’s business in connection with the administration of
this Lease or any investigation by BNPPLC hereunder. This provision will not, however, render
BNPPLC liable for any disclosures of proprietary information made by it or its employees or
representatives, unless the disclosure is intentional and made for no reason other than to damage
LRC’s business. Also, this provision will not apply to disclosures: (i) specifically and previously
authorized in writing by LRC; (ii) to any assignee of BNPPLC as to any interest in the Property so
long as such assignee has agreed in writing to use its reasonable efforts to keep such information
confidential in accordance with the terms of this paragraph; (iii) to legal counsel, accountants,
auditors, environmental consultants and other professional advisors to BNPPLC so long as BNPPLC
informs such persons in writing (if practicable) of the confidential nature of such information and
directs them to treat such information confidentially; (iv) to regulatory officials having
jurisdiction over BNPPLC or BNPPLC’s Parent (although the
disclosing party will request
confidential treatment of the disclosed information, if practicable); (v) as required by legal
process (although the disclosing party will request confidential treatment of the disclosed
information, if practicable); (vi) of information which has previously become publicly available
through the actions or inactions of a person other than BNPPLC not, to BNPPLC’s knowledge, in
breach of an obligation of confidentiality to LRC; (vii) to any Participant so long as the
Participant is bound by and has not repudiated a confidentiality provision concerning LRC’s
proprietary information set forth in the Participation Agreement; or
(vii) that are reasonably believed by BNPPLC to be necessary or helpful to the determination
or enforcement of any contractual or other rights which BNPPLC has or may have against LRC or its
Affiliates or which BNPPLC has or may have concerning the Property (provided, that BNPPLC must
cooperate with LRC as LRC may reasonably request to mitigate any risk that such disclosures will
result in subsequent disclosures of proprietary information which are not necessary or helpful to
any such determination or enforcement; such cooperation to include, for example, BNPPLC’s agreement
not to oppose a motion by LRC to seal records containing proprietary information in any court
proceeding initiated because of a dispute between the parties over the Property or the Operative
Documents).
Notwithstanding any other contrary provision contained in this Agreement or any related agreements
between BNPPLC and LRC, they may each (and each of their respective employees, representatives or
other agents) may disclose, without limitation of any kind, the tax treatment and tax structure of
the transactions contemplated by this Agreement or the other Operative Documents and all materials
of any kind (including opinions or other tax analyses) that are provided to such party relating to
such tax treatment and tax structure, other than any information for which non-disclosure is
reasonably necessary in order to comply with applicable securities laws.
20 Recording Memorandum. Contemporaneously with the execution of this Lease, the parties
will execute and record a memorandum of this Lease for purposes of effecting constructive notice to
all Persons of LRC’s rights hereunder.
21 Independent Obligations Evidenced by Other Operative Documents. LRC acknowledges and
agrees that nothing contained in this Lease will limit, modify or otherwise affect any of LRC’s
obligations under the other Operative Documents, which obligations are intended to be separate,
independent and in addition to, and not in lieu of, the obligations set forth herein. Further, in
the event of any inconsistency between the express terms and provisions of the Purchase Agreement
and the express terms and provisions of this Lease, the express terms and provisions of the
Purchase Agreement will control.
[The signature pages follow.]
IN WITNESS WHEREOF, this Lease Agreement (Livermore/Parcel 6) is executed to be effective as
of December 18, 2007.
| BNP PARIBAS LEASING CORPORATION, a Delaware corporation |
||||
| By: | /s/ Xxxxx Xxxxxxxxxx | |||
| Xxxxx Xxxxxxxxxx, Director | ||||
[Continuation of signature pages for Lease Agreement (Livermore/Parcel 6) dated as of December 18,
2007]
| XXX RESEARCH CORPORATION, a Delaware corporation |
||||
| By: | /s/ Xxxx XxXxxxx | |||
| Xxxx XxXxxxx, Treasurer | ||||
Exhibit A
Legal Description
PARCEL 6, AS SAID PARCEL IS SHOWN ON THE PARCEL MAP 7341 FILED IN BOOK 000 XX XXXXXX XXXX XX XXXX
00, XXXXXXX XXXXXX RECORDS.
A.P.N. 000-0000-000
Exhibit B
California Foreclosure Provisions
Without limiting any of the provisions set forth in the body of this Lease or other attachments to
this Lease, the following provisions are included in and made a part of this Lease for all
purposes:
GRANT OF LIEN AND SECURITY INTEREST.
LRC, for and in consideration of the sum of Ten Dollars ($10.00) to LRC in hand paid by
Xxxxx X. Xxx, Trustee, of Dallas County, Texas (in this Exhibit called the “Trustee”), in order to
secure the recovery of the Lease Balance by BNPPLC and the payment 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”), does hereby irrevocably
GRANT, BARGAIN, SELL, CONVEY, TRANSFER, ASSIGN and SET OVER to the Trustee, IN TRUST WITH POWER OF
SALE, for the benefit of BNPPLC, 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 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.
TO HAVE AND TO HOLD the foregoing property (in this Exhibit called the “Mortgaged Property”)
unto the Trustee, IN TRUST, and his successors or substitutes in this trust and to his or their
successors and assigns upon the terms, provisions and conditions herein set forth for the benefit
of BNPPLC.
In order to secure the Secured Obligations, LRC also hereby grants to BNPPLC a security
interest in: all components of the Property which constitute personalty, whether owned by LRC now
or hereafter, and all fixtures, accessions and appurtenances thereto now or hereafter attached to
or affixed to or installed in the Mortgaged Property in a manner that causes it to be part of, or
integral and necessary to the operation of, the real property, and all renewals or replacements of
or substitutions for any of the foregoing (including all building materials and equipment now or
hereafter delivered to said premises and intended to be installed or in or incorporated as part of
the Improvements); all rents and other amounts from and under leases of all or any part of the
Property; all issues, profits and proceeds from all or any part of the Property; all proceeds
(including premium refunds) of each policy of insurance relating to the Property; all proceeds from
the taking of the Property or any part thereof or any interest therein or right or estate
appurtenant thereto by eminent domain or by purchase in lieu thereof; all permits, licenses,
franchises, certificates, and other rights and privileges obtained in connection with the Property;
all plans, specifications, maps, surveys, reports, architectural, engineering and construction
contracts, books of account, insurance policies and other documents, of whatever kind or character,
relating to the use, construction upon, occupancy, leasing, sale or operation of the Property; all
proceeds and other amounts paid or owing to LRC under or pursuant to any and all contracts and
bonds relating to the construction, erection or renovation of the Property; and all oil, gas and
other hydrocarbons and other minerals produced from or allocated to the Property and all products
processed or obtained therefrom, the proceeds thereof, and all accounts and general intangibles
under which such proceeds may arise, together with any sums of money that may now or at any time
hereafter become due and payable to LRC by virtue of any and all royalties, overriding royalties,
bonuses, delay rentals and any other amount of any kind or character arising under any and all
present and future oil, gas and mining leases covering the Property or any part thereof (all of the
property described in this section are collectively called the “Collateral” in this Exhibit) and
all proceeds of the Collateral. (The Mortgaged Property and the Collateral are in this Exhibit
sometimes collectively called the “Security”.)
FORECLOSURE BY POWER OF SALE
Upon the occurrence of any Event of Default, the Trustee, its successor or substitute,
and/or BNPPLC is authorized and empowered to execute all written notices then required by law
to cause the Security to be sold under power of sale to satisfy the Secured Obligations.
Trustee will give and record such notices as the law then requires as a condition precedent to a
trustee’s sale. When the minimum period of time required by law after giving all required notices
has elapsed, Trustee, without notice to or demand upon LRC except as otherwise required by law,
will sell the Security at the time and place of sale fixed by it in the notice of sale, at one or
several sales, either as a whole or in separate parcels and in such manner and order, all as BNPPLC
or Trustee in its sole discretion may determine, at public auction to the highest bidder for cash,
in lawful money of the United States, payable at the time of sale (the obligations hereby secured
being the equivalent of cash for purposes of said sale). LRC will have no right to direct the
order in which the Security is sold or to require that the Security be sold in separate lots or
parcels or items. The sale by the Trustee of less than the whole of the Mortgaged Property will
not exhaust the power of sale herein granted, and the Trustee is specifically empowered to make
successive sale or sales under such power until the whole of the Mortgaged Property is sold; and,
if the proceeds of such sale of less than the whole of the Mortgaged Property is less than the
aggregate of the indebtedness secured hereby and the expense of executing this trust as provided
herein, the rights and remedies of BNPPLC hereunder and the lien hereof will remain in full force
and effect as to the unsold portion of the Mortgaged Property just as though no sale or sales had
been made; provided, however, that LRC will never have any right to require the sale of less than
the whole of the Mortgaged Property but BNPPLC will have the right, at its sole election, to
request the Trustee to sell less than the whole of the Mortgaged Property. Subject to requirements
and limits imposed by law, including California Civil Code § 2924g, Trustee may postpone sale of
all or any portion of the Security by public announcement at such time and place of sale and from
time to time may postpone the sale by public announcement at the time and place fixed by the
preceding postponement. Any person or entity, including Trustee, LRC or BNPPLC, may purchase at
the sale, and LRC hereby covenants to warrant and defend the title of such purchaser or purchasers.
Trustee will deliver to the purchaser at such sale a deed conveying the Security or portion
thereof so sold, but without any covenant or warranty, express or implied. At any such sale (i)
LRC hereby agrees, in its behalf and in behalf of its heirs, executors, administrators, successors,
personal representatives and assigns, that any and all recitals made in any deed of conveyance
given by Trustee of any matters or facts stated therein, including without limitation, the identity
of BNPPLC, the occurrence or existence of any default, the acceleration of the maturity of any of
the Secured Obligations, the request to sell, the notice of sale, the giving of notice to all
debtors legally entitled thereto, the time, place, terms, and manner of sale, and receipt,
distribution and application of the money realized therefrom, and the due and proper appointment of
a substitute Trustee and any other act or thing duly done by BNPPLC or by Trustee hereunder, will
be taken by all courts of law and equity as prima facie evidence that the statement or recitals
state facts and are without further question to be so accepted as conclusive proof of the
truthfulness thereof, and LRC hereby ratifies and confirms every act that Trustee or any substitute
Trustee hereunder may lawfully do in the premises by virtue hereof; and (ii) the purchaser may
disaffirm any easement granted, or rental, lease or other contract made, in violation of any
provision of any of the Operative Documents, and may take immediate possession of the Security free
from, and despite the terms, of, such grant of easement and rental
or lease contract.
BNPPLC may elect to cause the Security or any part thereof to be sold under the power
of sale herein granted in any manner permitted by applicable law. In connection with any sale or
sales hereunder, BNPPLC may elect to treat any portion of the Security which consists of a right in
action or which is property that can be severed from the Security without causing structural damage
thereto as if the same were personal property, and dispose of the same in accordance with
applicable law, separate and apart from the sale of the real property. Any sale of any personal
property hereunder will be conducted in any manner permitted by the California Uniform Commercial
Code (in this Exhibit called the “UCC”). Where any portion of the Security consists of real
property and personal property or fixtures, whether or not such personal property is located on or
within the real property, BNPPLC may elect in its discretion to exercise its rights and remedies
against any or all of the real property, personal property and fixtures, in such order and manner
as is now or hereafter permitted by applicable law. Without limiting the generality of the
foregoing, BNPPLC may, in its sole and absolute discretion and without regard to the adequacy of
its security, elect to proceed against any or all of the real property, personal property and
fixtures in any manner permitted by the UCC; and if BNPPLC elects to sell both personal property
and real property together as permitted by the UCC, the power of sale herein granted will be
exercisable with respect to all or any of the real property, personal property and fixtures covered
hereby, as designated by BNPPLC, and Trustee is hereby authorized and empowered to conduct any such
sale of any real property, personal property and fixtures in accordance with the procedures
applicable to real property. Where any portion of the Security consists of real property and
personal property, any reinstatement of the Secured Obligations, following default and an election
by BNPPLC to accelerate the maturity of said obligations, which is made by LRC or any other person
or entity permitted to exercise the right of reinstatement under § 2924c of the California Civil
Code or any successor statute, will, in accordance with the terms of UCC, not prohibit BNPPLC or
Trustee from conducting a sale or other disposition of any personal property or fixtures or from
otherwise proceeding against or continuing to proceed against any personal property or fixtures in
any manner permitted by the UCC, nor will any such reinstatement invalidate, rescind or otherwise
affect any sale, disposition or other proceeding held, conducted or instituted with respect to any
personal property or fixtures prior to such reinstatement or pending at the time of such
reinstatement. Any sums paid to BNPPLC in effecting any reinstatement
pursuant to § 2924c of the
California Civil Code will be applied to the indebtedness secured hereby, and to BNPPLC’s
reasonable costs and expenses in the manner required by § 2924c. Should BNPPLC elect to sell any
portion of the Security which is real property, or which is personal property or fixtures that
BNPPLC has elected to sell together with the real property in accordance with the laws governing a
sale of real property, BNPPLC or Trustee will give such notice of default and election to sell as
may then be required by law, and without the necessity of any demand on LRC, Trustee, at the
time(s) and place(s) specified in the notice of sale, will sell said real property, and all estate,
right, title, interest, claim and demand therein, and equity and right of redemption thereof, at
such times and places as required or permitted by law, upon such terms as BNPPLC or Trustee may fix
and specify in
the notice of sale or as may be required by law. If the Security consists of several lots, parcels or
items of property, BNPPLC may: (i) designate the order in which such lots, parcels or items will
be offered for sale or sold, or (ii) elect to sell such lots, parcels or items through a single
sale, or through two or more successive sales, or in any other manner BNPPLC deems in its best
interest. Should BNPPLC desire that more than one sale or other disposition of the Mortgaged
Property be conducted, BNPPLC may, at its option, cause the same to be conducted simultaneously, or
successively, on the same day, or on such different days or times and in such order as BNPPLC may
deem to be in its best interests, and no such sale will exhaust the power of sale herein granted or
terminate or otherwise affect the lien granted by LRC herein on, or the security interests of
BNPPLC in, any part of the Security not sold, until all of the indebtedness secured hereby has been
fully paid and satisfied. In the event BNPPLC elects to dispose of the Security through more than
one sale, LRC agrees to pay the costs and expenses of each such sale and of any judicial
proceedings wherein the same may be made, including reasonable compensation to BNPPLC and Trustee,
their agents and counsel, and to pay all expenses, liabilities and advances made or incurred by
BNPPLC and Trustee (or either of them) in connection with such sale or sale, together with interest
on all such advances made by BNPPLC and Trustee (or either of them) at the Default Rate.
JUDICIAL FORECLOSURE
This instrument will be effective as a mortgage as well as a deed of trust and upon the
occurrence of an Event of Default may be foreclosed as to any of the Security in any manner
permitted by the laws of the State of California or of any other state in which any part of the
Security is situated, and any foreclosure suit may be brought by the Trustee or by BNPPLC. In the
event a foreclosure hereunder is commenced by the Trustee, or his substitute or successor, BNPPLC
may at any time before the sale of the Security direct the said Trustee to abandon the sale, and
may then institute suit for the collection of the Secured Obligations and for the judicial
foreclosure of this instrument. It is agreed that if BNPPLC should institute a suit for the
collection of the Secured Obligations and for the foreclosure of this instrument, BNPPLC may at any
time before the entry of a final judgment in said suit dismiss the same, and require the Trustee,
his substitute or successor to exercise the power of sale granted herein to sell the Security in
accordance with the provisions of this instrument.
BNPPLC AS PURCHASER
BNPPLC will have the right to become the purchaser at any sale held by any Trustee or
substitute or successor or by any receiver or public officer, and any BNPPLC purchasing at any such
sale will have the right to credit upon the amount of the bid made therefor, to the extent
necessary to satisfy such bid, the outstanding Lease Balance and other Secured Obligations owing to
such BNPPLC.
UNIFORM COMMERCIAL CODE REMEDIES
Upon the occurrence of an Event of Default, BNPPLC may exercise its rights of enforcement with
respect to the Collateral under the California UCC, as amended, and in conjunction with, in
addition to or in substitution for those rights and remedies:
(a) BNPPLC may enter upon the Land to take possession of, assemble and collect the
Collateral or to render it unusable; and
(b) BNPPLC may require LRC to assemble the Collateral and make it available at a place
BNPPLC designates which is mutually convenient to allow BNPPLC to take possession or dispose
of the Collateral; and
(c) written notice mailed to LRC as provided herein ten (10) days prior to the date of
public sale of the Collateral or prior to the date after which private sale of the
Collateral will be made shall constitute reasonable notice; and
(d) any sale made pursuant to the provisions of this section will be deemed to have
been a public sale conducted in a commercially reasonable manner if held contemporaneously
with the sale of the Mortgaged Property under power of sale as provided herein upon giving
the same notice with respect to the sale of the Collateral hereunder as is required for such
sale of the Mortgaged Property under power of sale; and
(e) in the event of a foreclosure sale, whether made by the Trustee exercising the
power of sale granted herein, or under judgment of a court, the Collateral and the Mortgaged
Property may, at the option of BNPPLC, be sold as a whole; and
(f) it will not be necessary that BNPPLC take possession of the Collateral or any part
thereof prior to the time that any sale pursuant to the provisions of this section is
conducted and it will not be necessary that the Collateral or any part thereof be present at
the location of such sale; and
(g) prior to application of proceeds of disposition of the Collateral to the Secured
Obligations, such proceeds will be applied to the reasonable expenses of retaking, holding,
preparing for sale or lease, selling, leasing and the like and the reasonable attorney’s
fees and legal expenses incurred by BNPPLC; and
(h) any and all statements of fact or other recitals made in any xxxx of sale or
assignment or other instrument evidencing any foreclosure sale hereunder as to nonpayment of
the Secured Obligations or as to the occurrence of any Event of Default, or as to BNPPLC
having declared any of the Secured Obligations to be due and payable, or as to notice of
time, place and terms of sale and of the properties to be sold having
been duly given, or as to any other act or thing having been duly done by BNPPLC, will
be taken as prima facie evidence of the truth of the facts so stated and recited; and
(i) BNPPLC may appoint or delegate any one or more persons as agent to perform any act
or acts necessary or incident to any sale held by BNPPLC, including the sending of notices
and the conduct of the sale, but in the name and on behalf of BNPPLC.
APPOINTMENT OF A RECEIVER
In addition to all other remedies herein provided for, if any Event of Default occurs or
continues after the Designated Sale Date, BNPPLC will as a matter of right be entitled to the
appointment of a receiver or receivers for all or any part of the Security, whether such
receivership be incident to a proposed sale of such property or otherwise, and without regard to
the adequacy of the security or the value of the Security or the solvency of any person or persons
liable for the payment of the Secured Obligations, and LRC does hereby irrevocably consent to the
appointment of such receiver or receivers, waives any and all defenses to such appointment and
agrees not to oppose any application therefor by BNPPLC, but nothing herein is to be construed to
deprive BNPPLC of any other right, remedy or privilege it may now have under the law to have a
receiver appointed. Any such receiver or receivers will have all of the usual powers and duties of
receivers in like or similar cases and will continue as such and exercise all such powers until the
date of confirmation of sale of the Security unless such receivership is sooner terminated. Any
money advanced by BNPPLC in connection with any such receivership will be a demand obligation owing
by LRC to BNPPLC and will bear interest from the date of making such advancement by BNPPLC until
paid at the Default Rate and will be a part of the Secured Obligations and will be secured by this
lien and by any other instrument securing the Secured Obligations.
PROVISIONS CONCERNING THE TRUSTEE
Trustee accepts this trust when a Short Form Lease or memorandum referencing the provisions of
this Exhibit, duly executed and acknowledged, is made a public record as provided by law. The
trust hereby created will be irrevocable by LRC.
In the event the Trustee takes any action pursuant to the provisions of this Exhibit, LRC must
pay to Trustee reasonable compensation for services rendered in the administration of this trust,
which will be in addition to any required reimbursement for Attorney’s Fees or other expenses.
BNPPLC may appoint a substitute to replace and act as the Trustee hereunder in any
manner now or hereafter provided by law, or in lieu thereof, BNPPLC may from time to time, by an
instrument in writing, appoint substitutes as successor or successors to any Trustee named
herein or acting hereunder, which instrument, executed and acknowledged by BNPPLC and recorded
in the Office of the Recorder of the county in which the Property is located, will be conclusive
proof of proper substitution of such successor Trustee or Trustees, who will thereupon and without
conveyance from the predecessor Trustee, succeed to all its title, estate, rights, powers and
duties. Such instrument must contain the name of the original LRC, Trustee and BNPPLC hereunder,
the instrument number of this Deed of Trust, and the name and address of the successor Trustee. In
the event the Secured Obligations are at any time owned by more than one person or entity, the
holder or holders of not less than a majority in the amount of such Secured Obligations will have
the right and authority to make the appointment of a successor or substitute trustee provided for
in the preceding sentences. Such appointment and designation by BNPPLC or by the holder or holders
of not less than a majority of the Secured Obligations will be full evidence of the right and
authority to make the same and of all facts therein recited. If BNPPLC is a corporation and such
appointment is executed in its behalf by an officer of such corporation, such appointment will be
conclusively presumed to be executed with authority and will be valid and sufficient without proof
of any action by the board of directors or any superior officer of the corporation. Upon the
making of any such appointment and designation, all of the estate and title of the Trustee in the
Security will vest in the named successor or substitute trustee and he will thereupon succeed to
and will hold, possess and execute all the rights, powers, privileges, immunities and duties herein
conferred upon the Trustee; but nevertheless, upon the written request of BNPPLC or of the
successor or substitute Trustee, the Trustee ceasing to act must execute and deliver an instrument
transferring to such successor or substitute Trustee all of the estate and title in the Security of
the Trustee so ceasing to act, together with all the rights, powers, privileges, immunities and
duties herein conferred upon the Trustee, and must duly assign, transfer and deliver any of the
properties and moneys held by said Trustee hereunder to said successor or substitute Trustee. All
references herein to the Trustee will be deemed to refer to the Trustee (including any successor or
substitute appointed and designated as herein provided) from time to time acting hereunder. LRC
hereby ratifies and confirms any and all acts which the herein named Trustee or his successor or
successors, substitute or substitutes, in this trust, do lawfully by virtue hereof.
THE TRUSTEE WILL NOT BE LIABLE FOR ANY ERROR OF JUDGMENT OR ACT DONE BY THE TRUSTEE IN
GOOD FAITH, OR BE OTHERWISE RESPONSIBLE OR ACCOUNTABLE UNDER ANY CIRCUMSTANCES WHATSOEVER
(INCLUDING THE TRUSTEE’S NEGLIGENCE), EXCEPT FOR THE TRUSTEE’S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT. The Trustee will have the right to rely on any instrument, document or signature
authorizing or supporting any action taken or proposed to be taken by him hereunder, believed by
him in good faith to be genuine. All moneys received by the Trustee will, until used or applied as
herein provided, be held in trust for the purposes for which they were received, but need not be
segregated in any manner from any other moneys (except to the extent required by law), and the
Trustee will be under no liability for interest on any moneys received by him hereunder. LRC WILL
REIMBURSE THE TRUSTEE FOR, AND INDEMNIFY AND SAVE HIM HARMLESS AGAINST, ANY AND ALL LIABILITY AND
EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) WHICH MAY BE INCURRED BY HIM IN THE PERFORMANCE OF HER
DUTIES HEREUNDER (INCLUDING ANY LIABILITY AND EXPENSES RESULTING FROM THE TRUSTEE’S OWN
NEGLIGENCE). The foregoing indemnity will not terminate upon release, foreclosure or other
termination of this instrument.
MISCELLANEOUS
BNPPLC may resort to any security given by this instrument or to any other security now
existing or hereafter given to secure the payment of the Secured Obligations, in whole or in part,
and in such portions and in such order as may seem best to BNPPLC in its sole and uncontrolled
discretion, and any such action will not in anywise be considered as a waiver of any of the rights,
benefits, liens or security interests evidenced by this instrument.
To the full extent LRC may do so, LRC agrees that LRC will not at any time insist upon, plead,
claim or take the benefit or advantage of any law now or hereafter in force pertaining to the
rights and remedies of sureties or redemption, and LRC, for LRC and LRC’s successors and assigns,
and for any and all persons ever claiming any interest in the Security, to the extent permitted by
law, hereby waives and releases all rights of redemption, valuation, appraisement, stay of
execution, notice of intention to mature or declare due the whole of the Secured Obligations,
notice of election to mature or declare due the whole of the Secured Obligations and all rights to
a marshaling of the assets of LRC, including the Security, or to a sale in inverse order of
alienation in the event of foreclosure of the liens and security interests hereby created. LRC
will not have or assert any right under any statute or rule of law pertaining to the marshaling of
assets, sale in inverse order of alienation, the exemption of homestead, the administration of
estates of decedents or other matters whatever to defeat, reduce or affect the right of BNPPLC
under the terms of this instrument to a sale of the Security for the collection of the Secured
Obligations without any prior or different resort for collection, or the right of BNPPLC under the
terms of this instrument to the payment of the Secured Obligations out of the proceeds of sale of
the Security in preference to every other claimant whatever. If any law referred to in this
section and now in force, of which LRC or LRC’s successors and assigns and such other persons
claiming any interest in the Security might take advantage despite this provision, is hereafter
repealed or ceases to be in force, such law shall not thereafter be deemed to preclude the
application of this provision.
In the event there is a foreclosure sale hereunder and at the time of such sale LRC or
LRC’s successors or assigns or any other persons claiming any interest in the Security by, through
or under LRC are occupying or using the Security, or any part thereof, each and all will
immediately become the tenant of the purchaser at such sale. Such tenancy will be a tenancy from
day-to-day, terminable at the will of either landlord or tenant, at a reasonable rental per day
based upon the value of the property occupied, such rental to be due daily to the purchaser. In
the event the tenant fails to surrender possession of said property upon demand, the purchaser
will be entitled to institute and maintain an action to obtain possession in any court of
competent jurisdiction in California.
LRC agrees to pay BNPPLC for each statement of BNPPLC (as beneficiary) regarding the
obligations secured hereby the maximum fee allowed by law or, if there is no maximum fee, such
reasonable fee as is then charged by BNPPLC for rendering such statement.
Notwithstanding any contrary provisions regarding the giving of notices in the Common
Definitions or Provisions Agreement or other Operative Documents, any service of a notice required
by California Civil Code § 2924 will be considered complete when the requirements of that statute
are met.
All rights of action under this Exhibit be enforced by BNPPLC or Trustee without the
possession of any instruments secured hereby and without the production thereof or of this Lease or
other Operative Documents at any trial or other proceeding relative thereto.
COMMON DEFINITIONS
AND PROVISIONS AGREEMENT
(LIVERMORE/PARCEL 6)
AND PROVISIONS AGREEMENT
(LIVERMORE/PARCEL 6)
between
BNP PARIBAS LEASING CORPORATION
and
XXX RESEARCH CORPORATION
Dated as of December 18, 2007
TABLE OF CONTENTS
| Page | ||||
ARTICLE I — LIST OF DEFINED TERMS
|
1 | |||
97-10/Meltdown Event
|
1 | |||
97-10/Prepayment
|
1 | |||
Active Negligence
|
1 | |||
Additional Rent
|
2 | |||
Administrative Fees
|
2 | |||
Advance Date
|
2 | |||
Affiliate
|
2 | |||
After Tax Basis
|
2 | |||
Applicable Laws
|
2 | |||
Applicable Purchaser
|
2 | |||
Arrangement Fee
|
3 | |||
Attorneys’ Fees
|
3 | |||
Banking Rules Change
|
3 | |||
Base Rent
|
3 | |||
Base Rent Commencement Date
|
3 | |||
Base Rent Date
|
3 | |||
Base Rent Period
|
4 | |||
BNPPLC
|
4 | |||
BNPPLC’s Parent
|
4 | |||
Breakage Costs
|
4 | |||
Break Even Price
|
5 | |||
Business Day
|
5 | |||
Capital Adequacy Charges
|
5 | |||
Carrying Costs
|
5 | |||
Closing Certificate
|
5 | |||
Closing Letter
|
6 | |||
Code
|
6 | |||
Collateral Percentage
|
6 | |||
Commitment Fees
|
6 | |||
Common Definitions and Provisions Agreement
|
6 | |||
Completion Date
|
6 | |||
Completion Notice
|
6 | |||
Constituent Documents
|
6 | |||
Construction Advances
|
6 | |||
Construction Agreement
|
6 | |||
Construction Allowance
|
6 | |||
Construction Period
|
7 | |||
Construction Project
|
7 | |||
| Page | ||||
Covered Construction Period Losses
|
7 | |||
Default
|
7 | |||
Default Rate
|
7 | |||
Designated Sale Date
|
7 | |||
Effective Date
|
8 | |||
Eligible Financial Institution
|
8 | |||
Environmental Laws
|
9 | |||
Environmental Losses
|
9 | |||
Environmental Report
|
9 | |||
ERISA
|
9 | |||
ERISA Affiliate
|
9 | |||
ERISA Termination Event
|
9 | |||
Escrowed Proceeds
|
10 | |||
Established Misconduct
|
10 | |||
Event of Default
|
11 | |||
Excluded Taxes
|
14 | |||
Existing Contract
|
16 | |||
Existing Space Leases
|
16 | |||
Fed Funds Rate
|
16 | |||
FOCB Notice
|
16 | |||
Funding Advances
|
16 | |||
GAAP
|
16 | |||
Hazardous Substance
|
16 | |||
Hazardous Substance Activity
|
17 | |||
Improvements
|
17 | |||
Indebtedness
|
17 | |||
Initial Advance
|
19 | |||
Interested Party
|
19 | |||
Land
|
19 | |||
Lease
|
19 | |||
Lease Balance
|
19 | |||
Lease Termination Damages
|
20 | |||
Liabilities
|
20 | |||
LIBID
|
20 | |||
LIBOR
|
20 | |||
LIBOR Election
|
21 | |||
LIBOR Period
|
22 | |||
Lien
|
22 | |||
Liens Removable by BNPPLC
|
22 | |||
Local Impositions
|
23 | |||
Losses
|
23 | |||
LRC
|
23 | |||
Maximum Remarketing Obligation
|
23 | |||
TABLE OF CONTENTS
(Continued)
(Continued)
| Page | ||||
Minimum Insurance Requirements
|
23 | |||
Multiemployer Plan
|
23 | |||
Notice of LRC’s Intent to Terminate
|
23 | |||
Operative Documents
|
23 | |||
Outstanding Construction Allowance
|
24 | |||
Participant
|
24 | |||
Participation Agreement
|
24 | |||
Permitted Encumbrances
|
24 | |||
Permitted Hazardous Substance Use
|
24 | |||
Permitted Hazardous Substances
|
25 | |||
Permitted Transfer
|
25 | |||
Person
|
26 | |||
Personal Property
|
26 | |||
Plan
|
26 | |||
Pledge Agreement
|
26 | |||
Pre-lease Force Majeure Event
|
26 | |||
Pre-lease Force Majeure Event Notice
|
26 | |||
Pre-lease Force Majeure Losses
|
26 | |||
Prime Rate
|
26 | |||
Prior Owner
|
27 | |||
Property
|
27 | |||
Purchase Agreement
|
27 | |||
Purchase Option
|
27 | |||
Qualified Affiliate
|
27 | |||
Qualified Income Payments
|
27 | |||
Qualified Prepayments
|
27 | |||
Real Property
|
28 | |||
Remedial Work
|
28 | |||
Rent
|
29 | |||
Responsible Financial Officer
|
29 | |||
Scope Change
|
29 | |||
Secured Spread
|
29 | |||
Subsidiary
|
29 | |||
Supplemental Payment
|
29 | |||
Supplemental Payment Obligation
|
29 | |||
Term
|
29 | |||
Termination of LRC’s Work
|
29 | |||
Transaction Expenses
|
29 | |||
Unfunded Benefit Liabilities
|
29 | |||
(iii)
TABLE OF CONTENTS
(Continued)
(Continued)
| Page | ||||
Unsecured Spread
|
29 | |||
Work
|
29 | |||
ARTICLE II — SHARED PROVISIONS
|
30 | |||||
1.
|
Notices | 30 | ||||
2.
|
Severability | 32 | ||||
3.
|
No Merger | 32 | ||||
4.
|
No Implied Waiver | 33 | ||||
5.
|
Entire and Only Agreements | 33 | ||||
6.
|
Binding Effect | 33 | ||||
7.
|
Time is of the Essence | 33 | ||||
8.
|
Governing Law | 33 | ||||
9.
|
Paragraph Headings | 33 | ||||
10.
|
Negotiated Documents | 33 | ||||
11.
|
Terms Not Expressly Defined in an Operative Document | 34 | ||||
12.
|
Other Terms and References | 34 | ||||
13.
|
Execution in Counterparts | 34 | ||||
14.
|
Not a Partnership, Etc | 35 | ||||
15.
|
No Fiduciary Relationship Intended | 35 | ||||
Annexes
Annex 1 LIBOR Election Form
Annex 2 Minimum Insurance Requirements
Annex 3 Participation Agreement Form
Annex 4 Alternative Participation Agreement Form
(iv)
COMMON DEFINITIONS
AND PROVISIONS AGREEMENT
(LIVERMORE/PARCEL 6)
AND PROVISIONS AGREEMENT
(LIVERMORE/PARCEL 6)
This COMMON DEFINITIONS AND PROVISIONS AGREEMENT (LIVERMORE/PARCEL 6) (this “Agreement”),
dated as of December 18, 2007 (the “Effective Date”), is made by and between BNP PARIBAS LEASING
CORPORATION (“BNPPLC”), a Delaware corporation, and XXX RESEARCH CORPORATION (“LRC”), a Delaware
corporation.
RECITALS
Contemporaneously with the execution of this Agreement, LRC and BNPPLC are executing the
Closing Certificate (as defined below), the Lease (as defined below), the Construction Agreement
(as defined below), the Pledge Agreement (as defined below) and the Purchase Agreement (as defined
below), all of which concern LRC or the Property (as defined below). Each of the Closing
Certificate, the Lease, the Construction Agreement, the Pledge Agreement and the Purchase Agreement
(together with this Agreement, the “Operative Documents”) are intended to create separate and
independent obligations upon the parties thereto. However, LRC and BNPPLC intend that all of the
Operative Documents share certain consistent definitions and other miscellaneous provisions. To
that end, the parties are executing this Agreement and incorporating it by reference into each of
the other Operative Documents.
AGREEMENTS
ARTICLE I — LIST OF DEFINED TERMS
Unless a clear contrary intention appears, the following terms will have the respective
indicated meanings as used herein and in the other Operative Documents:
“97-10/Meltdown Event” has the meaning indicated in the Construction Agreement.
“97-10/Prepayment” has the meaning indicated in the Construction Agreement.
“Active Negligence” of any Person means, and is limited to, the negligent conduct on the
Property (and not mere omissions) by such Person or by others acting and authorized to act on such
Person’s behalf (other than LRC) in a manner that proximately causes actual bodily injury or
property damage for which LRC does not carry (and is not obligated by the Construction Agreement or
the Lease to carry) insurance. “Active Negligence” will not include (1) any negligent failure of
BNPPLC to act when the duty to act would not have been imposed but for BNPPLC’s status as owner of
any interest in the Land, the Improvements or any other Property or as a party to the transactions
described in the Lease or the other Operative Documents, (2) any negligent failure of any other
Interested Party to act when the duty to act would not have been imposed but for such party’s
contractual or other relationship to BNPPLC or participation or facilitation in any manner,
directly or indirectly, of the transactions described in the Lease or other Operative Documents, or
(3) the exercise in a lawful manner by BNPPLC (or any party lawfully claiming through or under
BNPPLC) of any right or remedy provided in or under the Lease or the other Operative Documents
consistent with the terms hereof.
“Additional Rent” has the meaning indicated in subparagraph 3(C) of the Lease. The
term “Additional Rent” does not include any Supplemental Payment required by the Purchase
Agreement.
“Administrative Fees” means the fees identified as such in subparagraph 3(D) of the
Lease and subparagraph 3(A) of the Construction Agreement.
“Advance Date” means, regardless of whether any Construction Advance is actually made on such
date, the first Business Day of every calendar month, beginning with the first Business Day of the
first calendar month after the Effective Date and continuing regularly thereafter to and including
the Base Rent Commencement Date, which will be the last Advance Date.
“Affiliate” of any Person means any other Person controlling, controlled by or under common
control with such Person. For purposes of this definition, the term “control” when used with
respect to any Person means the power to direct the management of policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract or otherwise, and
the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“After Tax Basis” has the meaning indicated in subparagraph 5(C)(1) of the Lease.
“Applicable Laws” means any or all of the following, to the extent applicable to BNPPLC, LRC,
the Property or the Operative Documents, after giving effect to the contractual choice of law
provisions in the Operative Documents: restrictive covenants; zoning ordinances and building codes;
flood disaster laws; health, safety and environmental laws and regulations; the Americans with
Disabilities Act and other laws pertaining to disabled persons; and other
laws, statutes, ordinances, rules, permits, regulations, orders, determinations and court
decisions.
“Applicable Purchaser” means any third party designated to purchase BNPPLC’s interest
in the Property and in any Escrowed Proceeds as provided in the Purchase Agreement.
“Arrangement Fee” has the meaning indicated in the Construction Agreement.
“Attorneys’ Fees” means the reasonable fees and reasonable out-of-pocket expenses of counsel
to the parties incurring the same, excluding costs or expenses of in-house counsel (whether or not
accounted for as general overhead or administrative expenses), but otherwise including printing,
photostating, duplicating and other expenses, air freight charges, and fees billed for law clerks,
paralegals, librarians and others not admitted to the bar but performing services under the
supervision of an attorney. Such terms will also include all such reasonable fees and expenses
incurred with respect to appeals, arbitrations and bankruptcy proceedings, and whether or not any
manner of proceeding is brought with respect to the matter for which such fees and expenses were
incurred.
“Banking Rules Change” means either: (1) the introduction of or any change after the Effective
Date in any law or regulation applicable to BNPPLC, BNPPLC’s Parent or any Participant, or in the
generally accepted interpretation by the institutional lending community of any such law or
regulation, or in the interpretation of any such law or regulation asserted by any regulator, court
or other governmental authority or (2) the compliance by BNPPLC or BNPPLC’s Parent or any
Participant with any new guideline or new request issued after the Effective Date from any central
bank or other governmental authority (whether or not having the force of law).
“Base Rent” means the rent payable by LRC pursuant to subparagraph 3(A) of the Lease.
“Base Rent Commencement Date” means the first Business Day of the first calendar month after
the Completion Date.
“Base Rent Date” means a date upon which Base Rent must be paid under the Lease, all of which
dates will be the first Business Day of a calendar month. The first Base Rent Date will be the
first Business Day of the first calendar month following the Base Rent Commencement Date, which is
consistent with the understanding of the parties that the first Base Rent Period will be subject to
a LIBOR Election of one month. Each successive Base Rent Date after the first Base Rent Date will
be the first Business Day of the first or third calendar month following the calendar month which
includes the preceding Base Rent Date, determined as follows:
(1) If a LIBOR Election of one month is in effect on a Base Rent Date, then the first
Business Day of the first calendar month following such Base Rent Date will be the
next following Base Rent Date.
(2) If a LIBOR Election of two months is in effect on a Base Rent Date, then the first
Business Day of the second calendar month following such Base Rent Date will be the
next following Base Rent Date.
(3) If a LIBOR Election of three months or longer is in effect on a Base Rent
Date, then the first Business Day of the third calendar month following such Base
Rent Date will be the next following Base Rent Date.
Thus, for example, if a Base Rent Period commences on the first Business Day of September, 2009 and
a LIBOR Election of three months applies to such Base Rent Period, then the next following Base
Rent Date will be the first Business Day of December, 2009.
“Base Rent Period” means a period for which Base Rent must be paid under the Lease, each of
which periods will correspond to the LIBOR Election for the period. The first Base Rent Period
will begin on the Base Rent Commencement Date, and each successive Base Rent Period will begin on
the Base Rent Date upon which the preceding Base Rent Period ends. Each Base Rent Period,
including the first Base Rent Period, will end on the first or second Base Rent Date after the Base
Rent Date upon which such period began, determined as follows:
(1) If a LIBOR Election of one month, two months or three months is in effect for a
Base Rent Period, then such Base Rent Period will end on the first Base Rent Date
after the Base Rent Date upon which such period began.
(2) If a LIBOR Election of six months is in effect for a Base Rent Period, then such
Base Rent Period will end on the second Base Rent Date after the Base Rent Date upon
which such period began.
The determination of Base Rent Periods can be illustrated by two examples:
1) If LRC makes a LIBOR Election of three months for a hypothetical Base Rent Period
beginning on the first Business Day in January, 2010, then such Base Rent Period will end on
the first Base Rent Date after it begins; that is, such Base Rent Period will end on the
first Business Day in April, 2010, the third calendar month after January, 2010.
2) If, however, LRC makes a LIBOR Election of six months for the hypothetical Base
Rent Period beginning on the first Business Day in January, 2010, then such Base Rent Period
will end on the second Base Rent Date after it begins; that is, the first Business Day in
July, 2010.
“BNPPLC” means BNPPLC Leasing Corporation, a Delaware corporation.
“BNPPLC’s Parent” means BNP Paribas, a bank organized and existing under the laws
of France,
and any successors of such bank.
“Breakage Costs” means any and all costs, losses or expenses incurred or sustained by
BNPPLC’s Parent or any Participant, for which BNPPLC’s Parent or the Participant requests
reimbursement from BNPPLC, because of:
(1) the resulting liquidation or redeployment of deposits or other funds that were used
to make or maintain Funding Advances upon application of a Qualified Prepayment or upon any
sale of the Property pursuant to the Purchase Agreement, if such application or sale occurs
on any day other than the last day of a LIBOR Period; or
(2) the resulting liquidation or redeployment of deposits or other funds that were
reserved to provide a Construction Advance requested by LRC, if and when the Construction
Advance is not made as anticipated, either because LRC declined to accept the Construction
Advance for any reason or because LRC failed to satisfy any of the conditions to such
Construction Advance specified in the Construction Agreement; or
(3) the resulting liquidation or redeployment of deposits or other funds that were used
to make or maintain Funding Advances upon the acceleration of the end of any LIBOR Period
because of an acceleration of the Designated Sale Date as described in clauses (2) or (3) of
the definition thereof.
Breakage Costs will include, for example, losses on Funding Advances maintained by BNPPLC’s Parent
or any Participant which are attributable to any decline in LIBOR as of the effective date of any
application described in the clause (1) preceding, as compared to the LIBOR for the then current
LIBOR Period. Each determination of Breakage Costs by BNPPLC’s Parent or a Participant, as
applicable, will be conclusive and binding upon LRC in the absence of clear and demonstrable error.
“Break Even Price” has the meaning indicated in the Purchase Agreement.
“Business Day” means any day that is (1) not a Saturday, Sunday or day on which commercial
banks are generally closed or required to be closed in New York City, New York, and (2) a day on
which dealings in deposits of dollars are transacted in the London interbank market; provided, that
if such dealings are suspended indefinitely for any reason, “Business Day” will mean any day
described in clause (1).
“Capital Adequacy Charges” means any additional amounts BNPPLC’s Parent or any Participant
requests BNPPLC to pay as compensation for an increase in required capital as provided in
subparagraph 5(B)(2) of the Lease.
“Carrying Costs” has the meaning indicated in the Construction Agreement.
“Closing Certificate” means the Closing Certificate and Agreement (Livermore/Parcel 6) dated
as of the Effective Date executed by LRC and BNPPLC, as such Closing Certificate and Agreement may
be extended, supplemented, amended, restated or otherwise modified from time to time in accordance
with its terms.
“Closing Letter” means the letter agreement dated as of the Effective Date between BNPPLC and
LRC confirming the amount of the Initial Advance and the Transaction Expenses paid from the Initial
Advance.
“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral Percentage” means, for each Base Rent Period or portion thereof, a percentage
equal to the lesser of (1) one hundred percent (100%) or (2) a fraction, the numerator of which
equals the Value of Cash Collateral subject to a Qualified Pledge under the Pledge Agreement on the
first day of such Base Rent Period, and the denominator of which equals (a) the Lease Balance
determined as of the first day of such Base Rent Period, less (b) Losses (if any) that BNPPLC
suffered or incurred prior to the Term and that qualify as Pre-lease Force Majeure Losses. (As
used in this definition, the terms “Value” and “Cash Collateral” and “Qualified Pledge” are
intended to have the respective meanings assigned to them in the Pledge Agreement.)
“Commitment Fees” has the meaning indicated in the Construction Agreement.
“Common Definitions and Provisions Agreement” means this Agreement, which is incorporated by
reference into each of the other Operative Documents, as this Agreement may be extended,
supplemented, amended, restated or otherwise modified from time to time in accordance with its
terms.
“Completion Date” has the meaning indicated in the Construction Agreement.
“Completion Notice” has the meaning indicated in the Construction Agreement.
“Constituent Documents” of any entity means the organizational documents pursuant to which
such entity was created and is governed, such as the articles of incorporation and bylaws of a
corporation, the articles of organization and regulations of a limited liability company or the
partnership agreement of a partnership.
“Construction Advances” has the meaning indicated in the Construction Agreement.
“Construction Agreement” means the Construction Agreement (Livermore/Parcel 6) dated as of the
Effective Date between BNPPLC and LRC, as such Construction Agreement may
be extended,
supplemented, amended, restated or otherwise modified from time to time in accordance with its
terms.
“Construction Allowance” has the meaning indicated in the Construction Agreement.
“Construction Period” means each successive period of approximately one month, with the
first Construction Period to begin on the Effective Date and end on the first Advance Date. Each
successive Construction Period after the first Construction Period will begin on the day on which
the preceding Construction Period ends and will end on the next following Advance Date, until the
last Construction Period, which will end on the earlier of the Base Rent Commencement Date or any
Designated Sale Date upon which LRC or any Applicable Purchaser purchases BNPPLC’s interest in the
Property pursuant to the Purchase Agreement.
“Construction Project” has the meaning indicated in the Construction Agreement.
“Covered Construction Period Losses” has the meaning indicated in the Construction Agreement.
“Default” means any event or circumstance which constitutes, or which would with the passage
of time or the giving of notice or both (if not cured within any applicable cure period)
constitute, an Event of Default.
“Default Rate” means (1) for purpose of computing any interest that accrues at such rate on
the Designated Sale Date or any day prior to the Designated Sale Date, a per annum rate equal to
two percent (2%) above LIBOR in effect on such day; and (2) for purpose of computing any interest
that accrues at such rate on any day after the Designated Sale Date, a per annum rate equal to two
percent (2%) above the Prime Rate in effect on such day; except that for purposes of computing
interest accruing for any period that commences thirty or more days after the Designated Sale Date
on any Base Rent or Supplemental Payment that has become due, but remains to be paid to BNPPLC by
LRC, the Default Rate will mean a floating per annum rate equal to five percent (5%) above the
Prime Rate. Notwithstanding the foregoing, in no event will the “Default Rate” at any time exceed
the maximum interest rate permitted by Applicable Laws.
“Designated Sale Date” means the earliest of:
(1) the earlier of (a) date upon which the Term is scheduled to expire as provided in
subparagraph 1(A) of the Lease (which states that the Term will expire on the first
Business Day of January, 2015), or (b) any date upon which the Lease terminates pursuant to
subparagraph 1(B) or subparagraph 1(C) of the Lease; or
(2) any Business Day designated as the “Designated Sale Date” for purposes
of
this Agreement and the other Operative Documents in an irrevocable, unconditional notice
given by LRC to BNPPLC before any 97-10/Meltdown Event has occurred; provided, that if the
Business Day so designated by LRC as the Designated Sale Date is
not at least twenty days after the date of such notice, the notice will be of no effect
for purposes of this definition; and provided, further, that to be effective, any such
notice must include an irrevocable exercise by LRC of the Purchase Option under
subparagraph 2(A)(1) of the Purchase Agreement and thereby obligate LRC to tender
payment of the full Break Even Price to BNPPLC on the Business Day so designated; or
(3) any Business Day designated as the “Designated Sale Date” for purposes of this
Agreement and the other Operative Documents in a notice given by BNPPLC to LRC:
| • | when an Event of Default has occurred and is continuing and after the Completion Date; or | ||
| • | after a 97-10/Meltdown Event or after BNPPLC’s receipt of a Pre-lease Force Majeure Event Notice from LRC or; or | ||
| • | following any change in the zoning or other Applicable Laws after the Completion Date affecting the permitted use or development of the Property that, in BNPPLC’s good faith judgment, materially reduces the value of the Property; or | ||
| • | following any discovery of conditions or circumstances on or about the Property after the Completion Date, such as the presence of an endangered species, which are likely to substantially impede the use or development of the Property and thereby, in BNPPLC’s good faith judgment, materially reduce the value of the Property; |
provided, however, that if the Business Day so designated by BNPPLC as the Designated Sale Date is
not at least thirty days after the date of such notice, the notice will be of no effect for
purposes of this definition.
“Effective Date” means December 18, 2007.
“Eligible Financial Institution” means (a) a commercial bank organized under the laws
of the United States, or any State thereof or the District of Columbia, and having total assets in
excess of $5,000,000,000; (b) a commercial bank organized under the laws of any other country which
is a member of the Organization for Economic Cooperation and Development (“OECD”) or has concluded
special lending arrangements with the International Monetary Fund associated with its General
Arrangements to Borrow, or a political subdivision of any such country, and
having total assets in
excess of $5,000,000,000; provided, that such bank is acting through a branch or agency located in
the United States; (c) the central bank of any country which is a member of the OECD; and (d) a
finance company, insurance company or other financial institution (whether a corporation, partnership or other entity, but excluding any savings and
loan association) which is engaged in making, purchasing or otherwise investing in commercial loans
in the ordinary course of its business, and having total assets in excess of $5,000,000,000;
provided, however, that in no event shall any bank or other Person qualify as an Eligible Financial
Institution at any time when it or its parent company has outstanding obligations with a credit
rating less than investment grade from Standard & Poor’s, a division of the XxXxxx-Xxxx Companies,
or Xxxxx’x Investors Service, Inc. or another nationally recognized rating service.
“Environmental Laws” means any and all existing and future Applicable Laws pertaining to
safety, health or the environment, or to Hazardous Substances or Hazardous Substance Activities,
including the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of 1986, and the Resource Conservation
and Recovery Act of 1976, as amended by the Used Oil Recycling Act of 1980, the Solid Waste
Disposal Act Amendments of 1980, and the Hazardous and Solid Waste Amendments of 1984.
“Environmental Losses” means Losses suffered or incurred by BNPPLC or any other Interested
Party, directly or indirectly, relating to or arising out of, based on or as a result of any of the
following: (i) any Hazardous Substance Activity; (ii) any violation of any applicable Environmental
Laws relating to the Property or to the ownership, use, occupancy or operation thereof; (iii) any
investigation, inquiry, order, hearing, action, or other proceeding by or before any governmental
or quasi-governmental agency or authority in connection with any Hazardous Substance Activity; or
(iv) any claim, demand, cause of action or investigation, or any action or other proceeding,
whether meritorious or not, brought or asserted against any Interested Party which directly or
indirectly relates to, arises from, is based on, or results from any of the matters described in
clauses (i), (ii), or (iii) of this definition or any allegation of any such matters.
“Environmental Report” means the following report: September 2007 Phase I Environmental Site
Assessment by Environmental Resources Management, ERM, KLA Tencor Corporation Site 1 and 100
Xxxxxxx Xxxxxx Xxxxxxxxx, XX.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to
time, together with all rules and regulations promulgated with respect thereto.
“ERISA Affiliate” means any Person who for purposes of Title IV of ERISA is a member of LRC’s
controlled group, or under common control with LRC, within the meaning of Section 414 of the
Internal Revenue Code, and the regulations promulgated and rulings issued thereunder.
“ERISA Termination Event” means (a) the occurrence with respect to any Plan of (1) a
reportable event described in Sections 4043(b)(5) or (6) of ERISA or (2) any other reportable event
described in Section 4043(b) of ERISA other than a reportable event not subject to the
provision for thirty-day notice to the Pension Benefit Guaranty Corporation pursuant to a
waiver by such corporation under Section 4043(a) of ERISA, or (b) the withdrawal of LRC or any
ERISA Affiliate from a Plan during a plan year in which it was a “substantial employer” as defined
in Section 4001(a)(2) of ERISA, or (c) the filing of a notice of intent to terminate any Plan or
the treatment of any Plan amendment as a termination under Section 4041 of ERISA, or (d) the
institution of proceedings to terminate any Plan by the Pension Benefit Guaranty Corporation under
Section 4042 of ERISA, or (e) any other event or condition which might constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any
Plan.
“Escrowed Proceeds” means, subject to the exclusions specified in the next sentence, any money
that is received by BNPPLC from time to time during the Term (and any interest earned thereon) from
any party (1) under any property insurance policy as a result of damage to the Property, (2) as
compensation for any restriction imposed by any Governmental Authority upon the use or development
of the Property or for the condemnation of the Property or any portion thereof, (3) because of any
judgment, decree or award for physical damage to the Property or (4) as compensation under any
title insurance policy or otherwise as a result of any title defect or claimed title defect with
respect to the Property; provided, however, in determining the amount of “Escrowed Proceeds” there
will be deducted all expenses and costs of every type, kind and nature (including Attorneys’ Fees)
incurred by BNPPLC to collect such proceeds. Notwithstanding the foregoing, “Escrowed Proceeds”
will not include (A) any payment to BNPPLC by any Participant or by an Affiliate of BNPPLC that is
made to compensate BNPPLC for the Participant’s or Affiliate’s share of any Losses BNPPLC may incur
as a result of any of the events described in the preceding clauses (1) through (4), (B) any money
or proceeds that have been applied as a Qualified Prepayment or to pay any Breakage Costs or other
costs incurred in connection with a Qualified Prepayment, (C) any money or proceeds that, after no
less than ten days notice to LRC, BNPPLC returns or pays to a third party because of BNPPLC’s good
faith belief that such return or payment is required by law, (D) any money or proceeds paid by
BNPPLC to LRC or offset against any amount owed by LRC, or (E) any money or proceeds used by BNPPLC
in accordance with the Lease for repairs or the restoration of the Property or to obtain
development rights or the release of restrictions that will inure to the benefit of future owners
or occupants of the Property. Until Escrowed Proceeds are paid to LRC pursuant to Paragraph
9 of the Lease, transferred to a purchaser under the Purchase Agreement as therein provided or
applied as a Qualified Prepayment or as otherwise described in the preceding sentence, BNPPLC will
keep the same deposited in one or more interest bearing accounts, and all interest earned on such
account will be added to and made a part of Escrowed Proceeds.
“Established Misconduct” of a Person means, and is limited to:
(1) if the Person is bound by the Operative Documents or the Participation Agreement,
conduct of such Person that constitutes a breach by it of the express provisions of the
Operative Documents or the Participation Agreement, as applicable, and
that continues beyond any period for cure provided therein, as determined in or as a
necessary element of a final judgment rendered against such Person by a court with
jurisdiction to make such determination, and
(2) conduct of such Person or its Affiliates that has been determined to
constitute willful misconduct or Active Negligence in or as a necessary element of a final
judgment rendered against such Person by a court with jurisdiction to make such
determination.
In no event, however, will Established Misconduct include actions of any Person undertaken in good
faith to mitigate Losses that such Person may suffer because of a breach or repudiation by LRC of
any of the Operative Documents. Further, negligence other than Active Negligence will not in any
event constitute Established Misconduct. For purposes of this definition, “conduct of a Person”
will consist of (1) the conduct of any employee of that Person, and (2) the conduct of an agent of
that Person (such as an independent environmental consultant engaged by that Person), but only to
the extent that the agent is (a) acting within the scope of the authority granted to him by such
Person, and (b) neither LRC nor acting with the consent or approval of or at the request of or
under the direction of LRC or LRC’s Affiliates, employees or agents. Established Misconduct of one
Interested Party will not be attributed to a second Interested Party unless the second Interested
Party is an Affiliate of the first, and it is understood that BNPPLC has not been authorized, and
nothing in the Participation Agreement will be construed as authorizing BNPPLC, to act as an
“agent” for any Participant as the term is used in this definition.
“Event of Default” means any of the following:
(A) LRC fails to pay when due any installment of Base Rent or Administrative Fees required by
the Lease, and such failure continues for three Business Days after LRC is notified in writing
thereof.
(B) LRC fails to pay the full amount of any 97-10/Prepayment when due as provided in the
Construction Agreement or fails to pay the full amount of any Supplemental Payment as provided in
the Purchase Agreement on the Designated Sale Date.
(C) LRC fails to pay when first due any amount required by the Operative Documents (other than
Base Rent or Administrative Fees required as provided in the Lease, any 97-10/Prepayment required
as provided in the Construction Agreement or any Supplemental Payment required as provided in the
Purchase Agreement) and such failure continues for ten Business Days after LRC is notified in
writing thereof.
(D) Any representation or warranty of LRC contained in any of the Operative Documents or in
any certificate or other document delivered by LRC pursuant to the Operative Documents is determined by BNPPLC to have been false or misleading in any material respect
when made, and LRC fails to cause such representation or warranty to be made true and not
misleading within ten Business Days after LRC is notified in writing of such determination by
BNPPLC.
(E) LRC fails to comply with any provision of the Operative Documents (other than as
described in the other clauses of this definition) and does not cure such failure prior to the
earliest of (1) thirty days after notice thereof is given to LRC, or (2) the date any writ or order
is issued for the levy or sale of any property owned by BNPPLC (including the Property) because of
such failure, or (3) the date any third party claim or criminal prosecution is instituted or
overtly threatened against any Interested Party or any of its directors, officers or employees
because of such failure; provided, however, that so long as no such writ or order is issued and no
such third party claim or criminal prosecution is instituted or overtly threatened, the period
within which such failure may be cured by LRC will be extended for a further period (not to exceed
an additional one hundred eighty days) as is necessary for the curing thereof with diligence, if
(but only if) (x) such failure is susceptible of cure but cannot with reasonable diligence be cured
within such thirty day period, (y) LRC promptly commences to cure such failure and thereafter
continuously prosecutes the curing thereof with reasonable diligence and (z) the extension of the
period for cure will not, in any event, cause the period for cure to extend to or beyond the
Designated Sale Date.
(F) LRC abandons any material part of the Property.
(G) Any event occurs or circumstance exists that constitutes an “Event of Default” as defined
in the Pledge Agreement.
(H) LRC or any Subsidiary of LRC fails to pay any principal of or premium or interest on any
of its Indebtedness which is outstanding in a principal amount of at least $25,000,000 when the
same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure continues after the applicable grace period, if any,
specified in the agreement or instrument relating to such Indebtedness; or any other event occurs
or condition exists under any agreement or instrument relating to any such Indebtedness and
continues after the applicable grace period, if any, specified in such agreement or instrument, if
the effect of such event or condition is to accelerate the maturity of such Indebtedness; or any
such Indebtedness is declared by the creditor to be due and payable, or required to be prepaid
(other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an
offer to prepay, redeem, purchase or defease such Indebtedness is required to be made, in each case
prior to the stated maturity thereof.
(I) LRC or any material Subsidiary of LRC is generally not paying its debts as such
debts become due, or admits in writing its inability to pay its debts generally, or makes a general
assignment for the benefit of creditors; or any proceeding is instituted by or against LRC or any
material Subsidiary of LRC seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization
or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part of its property
and, in the case of any such proceeding instituted against it (but not instituted by it), either
such proceeding remains undismissed or unstayed for a period of sixty consecutive days, or any of
the actions sought in such proceeding (including the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official for, it or for any
substantial part of its property) occurs; or LRC or any material Subsidiary of LRC takes any
corporate action to authorize any of the actions set forth above in this clause.
(J) Any order, judgment or decree is entered in any proceedings against LRC or any of LRC’s
material Subsidiaries decreeing its dissolution and such order, judgment or decree remains unstayed
and in effect for more than sixty days.
(K) Any order, judgment or decree is entered in any proceedings against LRC or any of LRC’s
material Subsidiaries decreeing a divestiture of any of assets that represent a substantial part,
or the divestiture of the stock of any of LRC’s Subsidiaries whose assets represent a substantial
part, of the total assets of LRC and its Subsidiaries (determined on a consolidated basis in
accordance with GAAP) or which requires the divestiture of assets, or stock of any of LRC’s
Subsidiaries, which have contributed a substantial part of the net income of LRC and its
Subsidiaries (determined on a consolidated basis in accordance with GAAP) for any of the three
fiscal years then most recently ended, and such order, judgment or decree remains unstayed and in
effect for more than sixty days.
(L) A judgment or order for the payment of money in an amount (not covered by insurance) which
exceeds $25,000,000 is rendered against LRC or any of LRC’s Subsidiaries and either (i)
enforcement proceedings is commenced by any creditor upon such judgment, or (ii) within thirty days
after the entry thereof, such judgment or order is not discharged or execution thereof stayed
pending appeal, or within thirty days after the expiration of any such stay, such judgment is not
discharged.
(M) Any ERISA Termination Event occurs that BNPPLC determines in good faith would constitute
grounds for a termination of any Plan or for the appointment by the appropriate United States
district court of a trustee to administer any Plan and such ERISA Termination Event is continuing
thirty days after notice to such effect is given to LRC by BNPPLC, or any Plan is terminated, or a
trustee is appointed by a United States district court to administer any Plan, or the Pension
Benefit Guaranty Corporation institutes proceedings to terminate any Plan or to appoint a trustee
to administer any Plan.
(N) LRC enters into any transaction which would cause any of the Operative Documents or any
other document executed in connection herewith (or any exercise of BNPPLC’s rights hereunder or thereunder) to constitute a non-exempt prohibited transaction
under ERISA.
(O) Any event or circumstance having a Material Adverse Effect occurs and is not
rectified before the end of thirty Business Days after LRC is notified in writing thereof.
(P) LRC shall fail to comply with subparagraph 3(A) of the Closing Certificate, which requires
that LRC and its Subsidiaries maintain a minimum amount of unrestricted cash, unencumbered cash
investments and unencumbered marketable securities classified as short term or long term
investments according to GAAP.
(Q) Any of the following shall occur: (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities
Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in
effect on the date hereof), of Equity Interests (as defined below) representing more than 40% of
the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of
LRC; or (b) occupation of a majority of the seats (other than vacant seats) on the board of
directors of LRC by Persons who were neither (i) nominated by the board of directors of LRC nor
(ii) appointed by directors so nominated. (As used in this paragraph, “Equity Interests” means
shares of capital stock, partnership interests, membership interests in a limited liability
company, beneficial interests in a trust or other equity ownership interests in a Person, and any
warrants, options or other rights entitling the holder thereof to purchase or acquire any such
equity interest.)
(R) Any “Event of Default” shall occur as defined in any other Common Definitions and
Provisions Agreement executed by LRC and BNPPLC, it being understood that the parties are executing
and may in the future execute such other agreements in connection with arrangements that are
similar to those contemplated by the Operative Documents, but that cover properties other than the
Property.
(S) LRC shall in writing or in any legal proceedings repudiate any of the Operative Documents
or assert that any of the Operative Documents are not valid or enforceable as written or that
BNPPLC does not own or have a lien or security interest in the Property by reason of the Operative
Documents.
“Excluded Taxes” means:
(1) taxes
upon or measured by net income to the extent such taxes are (A)
payable in respect of Base Rent or other Qualified Income Payments, or (B) (i) payable
by BNPPLC in respect of any Qualified Prepayment or any net sales proceeds paid to BNPPLC
upon a sale of the Property because of a refusal of tax authorities to accept the intended
characterization of the Lease and other Operative Documents as a financing arrangement for
tax purposes, and (ii) offset in the same taxable period by a reduction in the taxes of
BNPPLC which are not indemnified by LRC because of depreciation deductions or other tax
benefits available to BNPPLC only because of the refusal of the tax authorities to treat the
Lease and other Operative Documents as a financing arrangement; and
(2) any transfer or change of ownership taxes assessed because of BNPPLC’s transfer or
conveyance to any third party of any rights or interest in the Operative Documents or the
Property; save and except, however, any such taxes assessed because of (i) any Permitted
Transfer under clauses (1) or (2) of the definition of Permitted Transfer in this Agreement,
or (ii) any sale of the Property by BNPPLC required by the Purchase Agreement or with
respect to which the Purchase Agreement governs the distribution and allocation of sales
proceeds; and
(3) taxes that result solely from an act or event, or are attributable solely to any
period of time, that occurs after the latest of:
(i) the expiration of the Term with respect to the Property and, if the Lease
or other Operative Documents require the return of the Property to BNPPLC, such
return;
(ii) any sale or Deemed Sale (as defined in the Purchase Agreement) of the
Property pursuant to the Purchase Agreement; or
(iii) the discharge in full of LRC’s obligation to pay or do anything to cause
or assure the payment of the Lease Balance, or any amount determined by reference
thereto, and all other amounts due under the Operative Documents;
except any such taxes that are imposed on or with respect to payments that become due under
the Operative Documents after such expiration, sale or discharge, and in any event excluding
taxes that relate to acts, events, or matters occurring at or prior to the latest of any
such expiration, sale or discharge.
It is understood that if tax rates used to calculate income taxes which constitute Excluded Taxes
under clause (1) of this definition are increased, the resulting increase will not be subject to
reimbursement or indemnification by LRC. If, however, a change in Applicable Laws after the
Effective Date, as applied to the transactions contemplated by the Operative Documents on a
stand-alone basis, results in an increase in such income taxes for any reason other than an
increase in the applicable tax rates (e.g., a disallowance of deductions that would otherwise be
available against payments described in clause (1) of this definition), then for purposes of the
Operative Documents, the term “Excluded Taxes” will not include the actual increase in such taxes
attributable to the change. Accordingly, BNPPLC, BNPPLC=s Parent and any Participant may
recover any such net increase from LRC pursuant to subparagraph 5(B) of the Lease.
It is also understood that nothing in this definition of “Excluded Taxes” will prevent any
Original Indemnity Payment (as defined in subparagraph 5(C)(1) of the Lease) from being paid on an
After Tax Basis.
“Existing Contract” means that certain Purchase and Sale Agreement dated August 22, 2007
between the Prior Owner and LRC, under which rights of LRC (as the buyer) have been assigned to
BNPPLC.
“Existing Space Leases” means leases or subleases of space within the Improvements, if any,
which are executed on or prior to the Effective Date by BNPPLC or any predecessor in interest of
BNPPLC and included in the list of Permitted Encumbrances attached as Exhibit B to the
Closing Certificate.
“Fed Funds Rate” means, for any period, a fluctuating interest rate (expressed as a per annum
rate and rounded upwards, if necessary, to the next 1/16 of 1%) equal on each day during such
period to the weighted average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if
such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York, or, if such rates are not so published for any day which is a Business Day, the average
of the quotations for each day during such period on such transactions received by BNPPLC’s Parent
from three Federal funds brokers of recognized standing selected by BNPPLC’s Parent.
“FOCB Notice” has the meaning indicated in the Construction Agreement.
“Funding Advances” means all advances made by BNPPLC’s Parent or any Participant to or on
behalf of BNPPLC to allow BNPPLC to make the Initial Advance and to provide the Construction
Allowance or maintain its investment in the Property.
“GAAP” means generally accepted accounting principles in the United States of America as in
effect from time to time, applied on a basis consistent with those used in the preparation of the
financial statements delivered by LRC to BNPPLC prior to the Effective Date, which are the subject
of representations in subparagraph 2(A)(4) of the Closing Certificate.
“Governmental Authority” means (1) the United States, the state, the county, the municipality,
and any other political subdivision in which the Land is located, and (2) any other nation, state
or other political subdivision or agency or instrumentality thereof having or
asserting jurisdiction over LRC or the Property.
“Hazardous Substance” means (i) any chemical, compound, material, mixture or substance
that is now or hereafter defined or listed in, regulated under, or otherwise classified pursuant
to, any Environmental Laws as a “hazardous substance,” “hazardous material,” “hazardous waste,”
“extremely hazardous waste or substance,” “infectious waste,” “toxic substance,” “toxic pollutant,”
or any other formulation intended to define, list or classify substances by reason of deleterious
properties, including ignitability, corrosiveness, reactivity, carcinogenicity, toxicity or
reproductive toxicity; (ii) petroleum, any fraction of petroleum, natural gas, natural gas liquids,
liquified natural gas, synthetic gas usable for fuel (or mixtures of natural gas and such synthetic
gas), and ash produced by a resource recovery facility utilizing a municipal solid waste stream,
and drilling fluids, produced waters and other wastes associated with the exploration, development
or production of crude oil, natural gas or geothermal resources; (iii) asbestos and any asbestos
containing material; and (iv) any other material that, because of its quantity, concentration or
physical or chemical characteristics, is the subject of regulation under Applicable Law or poses a
significant present or potential hazard to human health or safety or to the environment if released
into the workplace or the environment.
“Hazardous Substance Activity” means any actual, proposed or threatened use, storage, holding,
release (including any spilling, leaking, leaching, pumping, pouring, emitting, emptying, dumping,
disposing into the environment, and the continuing migration into or through soil, surface water,
groundwater or any body of water), discharge, deposit, placement, generation, processing,
construction, treatment, abatement, removal, disposal, disposition, handling or transportation of
any Hazardous Substance from, under, in, into or on the Property, including the movement or
migration of any Hazardous Substance from surrounding property, surface water, groundwater or any
body of water under, in, into or onto the Property and any resulting residual Hazardous Substance
contamination in, on or under the Property. “Hazardous Substance Activity” also means any existence
of Hazardous Substances on the Property that would cause the Property or the owner or operator
thereof to be in violation of, or that would subject the Property to any remedial obligations
under, any Environmental Laws, assuming disclosure to the applicable Governmental Authorities of
all relevant facts, conditions and circumstances pertaining to the Property.
“Improvements” means any and all (1) buildings and other real property improvements previously
or hereafter erected on the Land, and (2) equipment (e.g., HVAC systems, elevators and plumbing
fixtures) attached to the buildings or other real property improvements, the removal of which would
cause structural or other material damage to the buildings or other real property improvements or
would materially and adversely affect the value or use of the buildings or other real property
improvements.
“Indebtedness” of any Person means (without duplication of any item) Liabilities of such
Person in any of the following categories:
(A) Liabilities for borrowed money;
(B) Liabilities constituting an obligation to pay the deferred purchase price of
property or services;
(C) Liabilities evidenced by a bond, debenture, note or similar instrument;
(D) Liabilities which (1) would under GAAP be shown on such Person’s balance sheet as a
liability, and (2) are payable more than one year from the date of creation thereof (other
than reserves for taxes and reserves for contingent obligations);
(E) Liabilities constituting principal under leases capitalized in accordance with
GAAP;
(F) Liabilities arising under conditional sales or other title retention agreements;
(G) Liabilities owing under direct or indirect guaranties of Liabilities of any other
Person or otherwise constituting obligations to purchase or acquire or to otherwise protect
or insure a creditor against loss in respect of Liabilities of any other Person (such as
obligations under working capital maintenance agreements, agreements to keep-well, or
agreements to purchase Liabilities, assets, goods, securities or services), but excluding
endorsements in the ordinary course of business of negotiable instruments in the course of
collection;
(H) Liabilities (for example, repurchase agreements, mandatorily redeemable preferred
stock and sale/leaseback agreements) consisting of an obligation to purchase or redeem
securities or other property, if such Liabilities arises out of or in connection with the
sale or issuance of the same or similar securities or property;
(I) Liabilities with respect to letters of credit or applications or reimbursement
agreements therefor;
(J) Liabilities with respect to payments received in consideration of oil, gas, or
other commodities yet to be acquired or produced at the time of payment (including
obligations under “take-or-pay” contracts to deliver gas in return for payments already
received and the undischarged balance of any production payment created by such Person or
for the creation of which such Person directly or indirectly received payment);
(K) Liabilities with respect to other obligations to deliver goods or services in
consideration of advance payments therefor; or
(L) Liabilities under any “synthetic” or other lease of property or related documents
(including a separate purchase agreement) which obligate such Person or any of its
Affiliates (whether by purchasing or causing another Person to purchase any interest in the
leased property or otherwise) to guarantee a minimum residual value of the leased property
to the lessor.
For purposes of this definition, the amount of Liabilities described in the last clause of
the preceding sentence with respect to any lease classified according to GAAP as an “operating
lease,” will equal the sum of (1) the present value of rentals and other minimum lease payments
required in connection with such lease (calculated in accordance with SFAS 13 and other GAAP
relevant to the determination of the whether such lease must be accounted for as an operating lease
or capital lease), plus (2) the fair value of the property covered by the lease; except that such
amount will not exceed the price, as of the date a determination of Indebtedness is required
hereunder, for which the lessee can purchase the leased property pursuant to any valid ongoing
purchase option if, upon such a purchase, the lessee will be excused from paying rentals or other
minimum lease payments that would otherwise accrue after the purchase.
Notwithstanding the foregoing, the “Indebtedness” of any Person will not include Liabilities that
were incurred by such Person on ordinary trade terms to vendors, suppliers, or other Persons
providing goods and services for use by such Person in the ordinary course of its business, unless
and until such Liabilities are outstanding more than 90 days past the original invoice or billing
date therefor.
“Initial Advance” has the meaning indicated in the Construction Agreement.
“Interested Party” means each of following Persons and their Affiliates: (1) BNPPLC and its
successors and permitted assigns as to the Property or any part thereof or any interest therein;
(2) BNPPLC’s Parent; and (3) the Participants; provided, however, none of the following Persons
will constitute an Interested Party: (a) any Person to whom BNPPLC may transfer an interest in the
Property by a conveyance that is not a Permitted Transfer and others that cannot lawfully claim an
interest in the Property except through or under a transfer by such a Person, (b) LRC and its
Affiliates, (c) any Person claiming through or under a conveyance made by LRC after any purchase by
LRC of BNPPLC’s interest in the Property pursuant to the Purchase Agreement, or (d) any Applicable
Purchaser designated by LRC under the Purchase Agreement who purchases the Property pursuant to a
sale arranged by LRC and any Person that cannot lawfully claim an interest in the Property except
through or under a conveyance from such an Applicable Purchaser.
“Land” means the land described in Exhibit A attached to the Closing Certificate, the
Lease and the Purchase Agreement.
“Lease” means the Lease Agreement (Livermore/Parcel 6) dated as of the Effective Date between
BNPPLC, as landlord, and LRC, as tenant, pursuant to which LRC has agreed to lease BNPPLC’s
interest in the Property, as such Lease Agreement may be extended, supplemented, amended, restated
or otherwise modified from time to time in accordance with its terms.
“Lease Balance” means, as of any date, the amount equal to the sum of the Initial
Advance, plus the sum of all Construction Advances, Carrying Costs and other amounts added to the
Outstanding Construction Allowance as provided in the Construction Agreement on or prior to such
date, minus all funds actually received by BNPPLC and applied as Qualified Prepayments on or prior
to such date. Under no circumstances will any payment of Base Rent or other Qualified Income
Payments reduce the Lease Balance.
“Lease Termination Damages” has the meaning indicated in subparagraph 14(A)(3)(c) of
the Lease.
“Liabilities” means, as to any Person, all indebtedness, liabilities and obligations of such
Person, whether matured or unmatured, liquidated or unliquidated, primary or secondary, direct or
indirect, absolute, fixed or contingent, and whether or not required to be considered pursuant to
GAAP.
“LIBID” means (1) for any period that is included in or coincides with a Base Rent Period, the
per annum rate equal to LIBOR for such Base Rent Period, minus twelve and one-half basis points
(12.5/100 of 1%); and (2) for each day after the last Base Rent Period, a per annum rate equal to
LIBOR for the LIBOR Period that includes such day, less twelve and one-half basis points (12.5/100
of 1%).
“LIBOR” means, for any LIBOR Period, the per annum rate equal to:
(a) the offered rate for deposits in U.S. dollars as of approximately 11:00 a.m.,
London time, on the day that is two London Banking Days (hereinafter defined) prior to the
day upon which such LIBOR Period begins (the “Reset Date”), as reported:
(1) on Reuters Screen LIBOR01 page (or any replacement page or pages on which
London interbank rates of major banks for U.S. dollars are displayed) by the Reuters
service; or
(2) on Moneyline Telerate Page 3750, British Bankers Association Interest
Settlement Rates, or another news page selected by BNPPLC’s Parent if the Reuters
Screen LIBOR01 page is removed from the Reuters system or changed such that, in the
opinion of BNPPLC’s Parent, the interest rates shown on it no longer represent the
same kind of interest rates as when the Operative Documents were executed; or
(b) if such offered rate is for any reason unavailable, the rate per annum
determined by BNPPLC’s Parent on the basis of rates offered for deposits in U.S. dollars by
four major banks in the London interbank market selected by BNPPLC’s Parent (“Reference
Banks”) at approximately 11:00 a.m., London time, on the day that is two London Banking Days
preceding the Reset Date to prime banks in the London interbank market for a period
corresponding as nearly as possible to the applicable LIBOR Period. (If this clause (b)
applies, BNPPLC’s Parent will request the principal London office of each of the Reference
Banks to provide a quotation of its rate. If at least two quotations are provided, “LIBOR”
will be the arithmetic mean of the quotations. If, however, fewer than two quotations are
provided, “LIBOR” will be the arithmetic mean of the rates quoted by major banks in New York
selected by BNPPLC’s Parent, at approximately 11:00 a.m., New York time, on the Reset Date
for loans in U.S. dollars to leading U.S. banks for a period corresponding as nearly as
possible to the applicable LIBOR Period.)
As used in this definition, “London Banking Day” means any day on which commercial banks are open
for general business (including dealings in foreign exchange and foreign currency deposits) in
London, England.
If for any reason BNPPLC determines that it is impossible or unreasonably difficult to determine
LIBOR for any given LIBOR Period in accordance with the foregoing, then the “LIBOR” for that period
will equal any published index or per annum interest rate determined in good faith by BNPPLC to be
comparable to LIBOR at the beginning of the first day of that period. A comparable interest rate
might be, for example, the then existing yield on short term United States Treasury obligations (as
compiled by and published in the then most recently published United States Federal Reserve
Statistical Release H.15(519) or its successor publication), plus or minus a fixed adjustment based
on BNPPLC’s comparison of past eurodollar market rates to past yields on such Treasury obligations.
“LIBOR Election” means an election to have any Base Rent Period extend for approximately one
month, two months, three months or six months. Subject to the limitations and qualifications set
forth in this definition, LRC may make any Base Rent Period subject to a LIBOR Election by a notice
given to BNPPLC in the form attached as Annex 1 at least five Business Days prior to the
commencement of such Base Rent Period. After a LIBOR Election becomes effective, it will remain in
effect for all subsequent Base Rent Periods until a different election is made in accordance with
the provisions of this definition. (For purposes of the definition of Base Rent Periods above, a
LIBOR Election for any Base Rent Period will also be considered the LIBOR Election in effect on the
Effective Date or Base Rent Date upon which such Base Rent Period begins.) Notwithstanding the
foregoing:
| • | No LIBOR Election made by LRC will be effective or continue if it would cause a Base Rent Period to extend beyond the end of the scheduled Term. |
| • | Changes in any LIBOR Election initiated by LRC will become effective only upon the commencement of a new Base Rent Period. | ||
| • | If for any reason (including BNPPLC’s receipt of a notice from LRC purporting to make a LIBOR Election that is contrary to the foregoing provisions), BNPPLC is unable to determine with certainty whether a particular Base Rent Period is subject to a specific LIBOR Election of one month, two months, three months or six months, the LIBOR Period Election for that particular Base Rent Period will be one month. | ||
| • | If any Event of Default has occurred and is continuing on the third Business Day preceding the commencement of a particular Base Rent Period, then BNPPLC shall be entitled (but not required) to make a LIBOR Election for that Base Rent Period of one month, absent which the LIBOR Election for that Base Rent Period will be determined in accordance with the foregoing provisions. |
“LIBOR Period” means any Construction Period or Base Rent Period. It also means, for purposes
of computing any interest that accrues after the last Base Rent Period as provided in subparagraph
3(D)(4) of the Purchase Agreement, any successive period that begins on the last day of a preceding
LIBOR Period ends and ends on the first Business Day of the next following calendar month.
“Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind
(including any agreement to give any of the foregoing, any conditional sale or other title
retention agreement, any lease in the nature thereof, any agreement to sell receivables with
recourse, and the filing of or agreement to give any financing statement under the Uniform
Commercial Code of any jurisdiction).
“Liens Removable by BNPPLC” means, and is limited to, Liens encumbering the Property that are
asserted (1) other than as contemplated in the Operative Documents, by BNPPLC itself or by BNPPLC’s
Parent, (2) by third parties lawfully claiming through or under BNPPLC, or (3) by third parties
claiming under a deed or other instrument duly executed by BNPPLC; provided, however, Liens
Removable by BNPPLC will not include (A) any Permitted Encumbrances (regardless of whether claimed
through or under BNPPLC), (B) the Operative Documents or any other document executed by BNPPLC with
the knowledge of (and without objection by) LRC or LRC’s counsel contemporaneously with the
execution and delivery of the Operative Documents, (C) Liens which are neither lawfully claimed
through or under BNPPLC (as described above) nor claimed under a deed or other instrument duly
executed by BNPPLC, (D) Liens claimed by LRC or claimed through or under a conveyance made by LRC,
(E) Liens arising because of BNPPLC’s compliance with Applicable Law, the Operative Documents,
Permitted Encumbrances or any request made by LRC, (F) Liens securing the payment of property taxes
or other amounts assessed against the Property by any Governmental Authority,
(G) Liens resulting
from or arising or asserted in connection with any breach by LRC of the Operative Documents; or (H)
Liens resulting from or arising in connection with any Permitted Transfer that occurs after any
Designated Sale Date upon which, for any reason, LRC or any Applicable Purchaser does not purchase BNPPLC’s interest in the Property pursuant to the
Purchase Agreement for a price (when taken together with any Supplemental Payment paid by LRC
pursuant to the Purchase Agreement, in the case of a purchase by an Applicable Purchaser) equal to
the Break Even Price.
“Local Impositions” means all sales, excise, ad valorem, gross receipts, business,
transfer, stamp, occupancy, rental and other taxes (other than taxes on net income and corporate
franchise taxes), levies, fees, charges, surcharges, assessments, interest, additions to tax, or
penalties imposed by the State of California or any agency or political subdivision thereof upon
BNPPLC or any owner of the Property or any part of or interest in the Property because of (i) the
Lease or other Operative Documents, (ii) the status of record title to the Property, (iii) the
ownership, leasing, occupancy, sale or operation of the Property or any part thereof or interest
therein, or (iv) the Permitted Encumbrances; excluding, however, Excluded Taxes. “Local
Impositions” will include any real estate taxes imposed because of a change of use or ownership of
the Property resulting from, or occurring on or prior to the date of, any sale by BNPPLC pursuant
to the Purchase Agreement.
“Losses” means the following: any and all losses, liabilities, damages (whether actual,
consequential, punitive or otherwise denominated), demands, claims, administrative or legal
proceedings, actions, judgments, causes of action, assessments, fines, penalties, costs of
settlement and other costs and expenses (including Attorneys’ Fees and the fees of outside
accountants and environmental consultants), of any and every kind or character, foreseeable and
unforeseeable, liquidated and contingent, proximate and remote, known and unknown.
“LRC” means Xxx Research Corporation, a Delaware corporation.
“Material Adverse Effect” means a material adverse effect on (a) the assets, operations,
financial condition or businesses of LRC, (b) the ability of LRC to perform any of its obligations
under the Operative Documents, (c) the rights of or benefits available to BNPPLC or BNPPLC’s Parent
or the Participants under the Operative Documents, (d) the value, utility or useful life of the
Property or (e) the priority, perfection or status of any of BNPPLC’s interests in the Property or
in any of the Operative Documents.
“Maximum Remarketing Obligation” has the meaning indicated in the Purchase Agreement.
“Minimum Insurance Requirements” means the insurance requirements outlined in Annex 2
attached to this Agreement.
“Multiemployer Plan” means a multiemployer plan as defined in Section 3(37) of ERISA to which
contributions have been made by LRC or any ERISA Affiliate during the preceding six years and which
is covered by Title IV of ERISA.
“Notice of LRC’s Intent to Terminate” has the meaning indicated in the Construction Agreement.
“Operative Documents” means the following documents executed by LRC and BNPPLC: (1)
Closing Certificate, (2) the Construction Agreement, (3) the Lease, (4) the Pledge Agreement, (5)
the Purchase Agreement, (6) this Common Definitions and Provisions Agreement, (7) the Closing
Letter, (8) the Memorandum (Short Form) of Lease (Livermore/Parcel 6) dated as of the Effective
Date, (9) the Memorandum of Agreement Regarding Purchase and Remarketing Options (Livermore/Parcel
6) dated as of the Effective Date, and (10) financing statements filed to give notice of or perfect
BNPPLC’s rights or interests under any of the foregoing Operative Documents.
“Outstanding Construction Allowance” has the meaning indicated in the Construction Agreement.
“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 the
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 other than ABN AMRO BANK,
N.V. 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, but
BNPPLC may from time to time request LRC’s approval for prospective Participants. 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 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.
“Participation Agreement” means a Participation Agreement (Livermore/Parcel 6) in
substantially the form attached to this Agreement as Annex 3 or Annex 4, pursuant
to which one or more other Persons agree with BNPPLC to participate in the risks and rewards to
BNPPLC of the Operative Documents, as such Participation Agreement may be extended, supplemented,
amended, restated or otherwise modified from time to time in accordance with its terms.
“Permitted Encumbrances” means (i) the encumbrances and other matters affecting the Property
that are set forth in Exhibit B attached to the Closing Certificate, (ii) any easement
agreement or other document affecting title to the Property executed by BNPPLC at the request
of or
with the consent of LRC, (iii) any Liens securing the payment of Local Impositions which are not
delinquent or claimed to be delinquent or which are being contested in accordance with
subparagraph 5(A) of the Lease, (iv) statutory liens, if any, in the nature of
contractors’, mechanics’ or materialmen’s liens for amounts not past due or claimed to be past due for more
than thirty days.
“Permitted Hazardous Substance Use” means the use, generation, storage and offsite
disposal of Permitted Hazardous Substances in strict accordance with applicable Environmental Laws
and with due care given the nature of the Hazardous Substances involved; provided, the scope and
nature of such use, generation, storage and disposal will not:
(1) exceed that reasonably required for the construction of the Construction Project in
accordance with the Construction Agreement or for the use and operation of the Property for
the purposes expressly permitted under subparagraph 2(A) of the Lease; or
(2) include any disposal, discharge or other release of Hazardous Substances from the
Property in any manner that might allow such substances to reach surface water or
groundwater, except (i) through a lawful and properly authorized discharge (A) to a publicly
owned treatment works or (B) with rainwater or storm water runoff in accordance with
Applicable Laws and any permits obtained by LRC that govern such runoff; or (ii) any such
disposal, discharge or other release of Hazardous Substances for which no permits are
required and which are not otherwise regulated under applicable Environmental Laws.
Further, notwithstanding anything to the contrary herein contained, Permitted Hazardous Substance
Use will not include any use of the Property (including as a landfill, incinerator or other waste
disposal facility) in a manner that requires a treatment, storage or disposal permit under the
Resource Conservation and Recovery Act of 1976, as amended by the Used Oil Recycling Act of 1980,
the Solid Waste Disposal Act Amendments of 1980, and the Hazardous and Solid Waste Amendments of
1984.
“Permitted Hazardous Substances” means Hazardous Substances used and reasonably required for
the construction of the Construction Project or for the use and operation of the Property by LRC
and its permitted subtenants and assigns for the purposes expressly permitted by subparagraph
2(A) of the Lease, in either case in compliance with all Environmental Laws and with due care
given the nature of the Hazardous Substances involved. Without limiting the generality of the
foregoing, Permitted Hazardous Substances will include usual and customary office and janitorial
products.
“Permitted Transfer” means any of the following:
(1) any assignment or conveyance by BNPPLC requested by LRC or required by any
Permitted Encumbrance, by the Purchase Agreement or by Applicable Laws;
(2) the creation or conveyance by BNPPLC of rights and interests in favor of
Participants pursuant to the Participation Agreement;
(3) any lien, security interest or assignment covering the Property or the Rents
which is granted by BNPPLC in favor of Participants or an agent appointed for them to secure
their rights under the Participation Agreement, and any subsequent assignment or conveyance
made to accomplish a foreclosure of such lien or security interest; provided, however, that
in each case such lien, security interest or assignment and such subsequent assignment or
conveyance made to accomplish a foreclosure must be expressly subject and subordinate to the
Operative Documents and all rights of LRC under the Operative Documents, including its
Purchase Option under the Purchase Agreement;
(4) any conveyance to BNPPLC’s Parent or to any Qualified Affiliate of BNPPLC of all or
any interest in or rights with respect to the Property or any portion thereof; provided,
however, that any such conveyance must be expressly subject and subordinate to the Operative
Documents and all rights of LRC under the Operative Documents, including its Purchase Option
under the Purchase Agreement; and
(5) any assignment or conveyance after a Designated Sale Date on which LRC does not
purchase or cause an Applicable Purchaser to purchase BNPPLC’s interest in the Property.
“Person” means an individual, a corporation, a partnership, a limited liability company, an
unincorporated organization, an association, a joint stock company, a joint venture, a trust, an
estate, a government or agency or political subdivision thereof or other entity, whether acting in
an individual, fiduciary or other capacity.
“Personal Property” has the meaning indicated on page 2 of the Lease.
“Plan” means any employee benefit or other plan established or maintained, or to which
contributions have been made, by LRC or any ERISA Affiliate during the preceding six years and
which is covered by Title IV of ERISA, including any Multiemployer Plan.
“Pledge Agreement” means the Pledge Agreement (Livermore/Parcel 6) dated as of the Effective
Date executed by LRC and BNPPLC, as such Pledge Agreement may be extended, supplemented, amended,
restated or otherwise modified from time to time in accordance with its terms.
“Pre-lease Force Majeure Event” has the meaning indicated in the Construction
Agreement.
“Pre-lease Force Majeure Event Notice” has the meaning indicated in the Construction
Agreement.
“Pre-lease Force Majeure Losses” has the meaning indicated in the Construction Agreement.
“Prime Rate” means the prime interest rate or equivalent charged by BNPPLC’s Parent in
the United States of America as announced or published by BNPPLC’s Parent from time to time, which
need not be the lowest interest rate charged by BNPPLC’s Parent. If for any reason BNPPLC’s Parent
does not announce or publish a prime rate or equivalent, the prime rate or equivalent announced or
published by either CitiBank, N.A. or any New York branch or office of Credit Commercial de France
as selected by BNPPLC will be used to compute the rate describe in the preceding sentence. The
prime rate or equivalent announced or published by such bank need not be the lowest rate charged by
it. The Prime Rate may change from time to time after the Effective Date without notice to LRC as
of the effective time of each change in rates described in this definition.
“Prior Owner” means KLA-Tencor Corporation, a Delaware corporation, which is at the request
and direction of LRC conveying the Property to BNPPLC contemporaneously with the execution of the
Operative Documents.
“Property” means the Personal Property and the Real Property, collectively.
“Purchase Agreement” means the Agreement Regarding Purchase and Remarketing Options
(Livermore/Parcel 6) dated as of the Effective Date between BNPPLC and LRC, as such Purchase
Agreement may be extended, supplemented, amended, restated or otherwise modified from time to time
in accordance with its terms.
“Purchase Option” has the meaning indicated in the Purchase Agreement.
“Qualified Affiliate” means any Person that, like BNPPLC, (i) is one hundred percent (100%)
owned, directly or indirectly, by BNPPLC’s Parent or any successor of such bank, (ii) can make (and
has in writing made) the same representations to LRC that BNPPLC has made in subparagraphs 4(A)
and 4(B) of the Closing Certificate (excluding subparagraph 4(B)(1) of the Closing
Certificate), and (iii) is an entity organized under the laws of the State of Delaware or another
state within the United States of America.
“Qualified Income Payments” means: (A) Base Rent; (B) payments that are made to BNPPLC only
because the following amounts are capitalized (i.e.,the added to the Lease Balance) as described in
subparagraph 3 of the Construction Agreement: the Arrangement Fee,
Administrative Fees,
Commitment Fees, Carrying Costs, Increased Cost Charges and Capital Adequacy Charges; (C) payments
of the following made to BNPPLC to satisfy the Lease: Administrative Fees, Increased Cost Charges
and Capital Adequacy Charges; (D) any interest paid to BNPPLC or any Participant pursuant to
subparagraph 3(F) of the Lease; and (E) payments by BNPPLC to Participants required under the Participation Agreements because of
BNPPLC’s receipt of payments described in the preceding clauses (A) through (D).
“Qualified Prepayments” means any payments received by BNPPLC from time to time prior to or
during the Term (1) under any property insurance policy as a result of damage to the Property, (2)
as compensation for any restriction placed upon the use or development of the Property or for the
condemnation of the Property or any portion thereof, (3) because of any judgment, decree or award
for injury or damage to the Property, (4) under any title insurance policy or otherwise as a result
of any title defect or claimed title defect with respect to the Property, or (5) for application as
Qualified Prepayments as provided in subparagraph 2(A)(2)(i) of the Construction Agreement.
For the purposes of determining the amount of any Qualified Prepayment and other amounts dependent
upon Qualified Prepayments (e.g., the Lease Balance, the Outstanding Construction Allowance and the
Break Even Price):
(i) there will be deducted all expenses and costs of every kind, type and nature
(including taxes and Attorneys’ Fees) incurred by BNPPLC with respect to the collection or
application of such payments;
(ii) Qualified Prepayments will not include any payment to BNPPLC by any Participant or
Affiliate of BNPPLC that is made to compensate BNPPLC for the Participant’s or Affiliate’s
share of any Losses BNPPLC may incur as a result of any of the events described in the
preceding clauses (1) through (4);
(iii) Qualified Prepayments will not include any payments received by BNPPLC that
BNPPLC has paid or is obligated to pay to LRC for the repair, restoration or replacement of
the Property or that BNPPLC is holding as Escrowed Proceeds in accordance with Paragraph 9
of the Lease or other provisions of the Operative Documents; and
(iv) in no event will interest that accrues under the Purchase Agreement on a past due
Supplemental Payment constitute a Qualified Prepayment.
For purposes of computing the total Qualified Prepayments (and other amounts dependent upon
Qualified Prepayments, such as the Lease Balance, the Outstanding Construction Allowance and the
Break Even Price) paid to or received by BNPPLC as of any date, payments described in the preceding
clauses (1) through (4) will be considered as Escrowed Proceeds, not Qualified Prepayments, until
they are actually applied as Qualified Prepayments by BNPPLC as provided in subparagraph
5(D) of the Construction Agreement or Paragraph 9 of the Lease.
“Real Property” has the meaning indicated on page 2 of the Lease.
“Remedial Work” means any investigation, monitoring, clean-up, containment,
remediation, removal, payment of response costs, or restoration work and the preparation and
implementation of any closure or other required remedial plans that any governmental agency or
political subdivision requires or approves (or could reasonably be expected to require if it was
aware of all relevant circumstances concerning the Property), whether by judicial order or
otherwise, because of the presence of or suspected presence of Hazardous Substances in, on, under
or about the Property or because of any prior Hazardous Substance Activity.
“Rent” means Base Rent and Additional Rent. The term “Rent” does not include any Supplemental
Payment required by the Purchase Agreement.
“Responsible Financial Officer” means the chief financial officer, the controller, the
treasurer or the assistant treasurer of LRC.
“Scope Change” has the meaning indicated in the Construction Agreement.
“Secured Spread” means forty basis points (40/100 of 1%).
“Subsidiary” means, with respect to any Person, any Affiliate of which at least a majority of
the securities or other ownership interests having ordinary voting power then exercisable for the
election of directors or other persons performing similar functions are at the time owned directly
or indirectly by such Person.
“Supplemental Payment” has the meaning indicated in the Purchase Agreement.
“Supplemental Payment Obligation” has the meaning indicated in the Purchase Agreement.
“Term” has the meaning indicated in subparagraph 1(A) of the Lease.
“Termination of LRC’s Work” has the meaning indicated in the Construction Agreement.
“Transaction Expenses” means (i) costs incurred in connection with the preparation and
negotiation of the Operative Documents and related documents and the consummation of the
transactions contemplated therein, and (ii) closing costs and other expenses paid in connection
with BNPPLC’s acquisition of the Property from the Prior Owner.
“Unfunded Benefit Liabilities” means, with respect to any Plan, the amount (if any) by
which
the present value of all benefit liabilities (within the meaning of Section 4001(a)(16) of ERISA)
under the Plan exceeds the market value of all Plan assets allocable to such benefit liabilities,
as determined on the most recent valuation date of the Plan and in accordance with the provisions
of ERISA for calculating the potential liability of LRC or any ERISA Affiliate under
Title IV of ERISA.
“Unsecured Spread” means one hundred basis points (1%).
“Work” has the meaning indicated in the Construction Agreement.
ARTICLE II — SHARED PROVISIONS
The following provisions will apply to and govern the construction of this Agreement and the
other Operative Documents (including attachments), except to the extent (if any) a clear, contrary
intent is expressed herein or therein:
1. Notices. Any provision of (1) any of the Operative Documents, (2) any other
document which references this provision for purposes of establishing notice requirements (in this
provision, a “Related Document”), or (3) any Applicable Law, that makes reference to any required
payment from LRC or BNPPLC to the other or that makes reference to the sending, mailing or delivery
of any notice or demand will be subject to the following provisions (except that any notice given
by BNPPLC to satisfy any statutory requirement, including any notice of eviction or foreclosure,
will be considered sufficient if it satisfies the statutory requirements applicable to the notice,
regardless of whether the notice or payment satisfies the following provisions):
(i) All Rent and other amounts required to be paid by LRC to BNPPLC must be paid to
BNPPLC in immediately available funds by wire transfer to:
Federal Reserve Bank of New York
ABA 000000000 BNP Paribas
/BNP/ BNP New York
/AC/ 0020-517000-070-78
/Ref/ Xxx Research Corporation/Livermore/Parcel 6 Lease
ABA 000000000 BNP Paribas
/BNP/ BNP New York
/AC/ 0020-517000-070-78
/Ref/ Xxx Research Corporation/Livermore/Parcel 6 Lease
or at such other place and in such other manner as BNPPLC may designate in a notice to LRC.
(ii) All advances paid to LRC by BNPPLC under the Construction Agreement or in
connection therewith will be paid by wire transfer to:
| Xxx Research Corporation USD Concentration Account B LaSalle Bank NA |
||||||
| Bank Name: | LaSalle National Bank | |||||
| Bank Address: | 000 X. XxXxxxx Xxxxxx Xxxxxxx, XX 00000 |
|||||
| ABA # (Domestic): | 000000000 | |||||
| SWIFT ID (Int’l): | XXXXXX00 | |||||
| Account Name: | Xxx Research Corporation | |||||
| Account Number: | 58000-68321 | |||||
| Bank Contact: | Xxxxxxx Xxxxxxxxx 000-000-0000 xxxxxxx.xxxxxxxxx@xxxxxxx.xxx |
|||||
| Reference: | BNPPLC Lease (Livermore/Parcel 6) | |||||
or at such other place and in such other manner as LRC may reasonably designate from time
to time by notice to BNPPLC signed by a Responsible Financial Officer of LRC.
(iii) All notices, demands, approvals, consents and other communications to be made
under any Operative Document or Related Document to or by the parties thereto must, to be
effective for purposes thereof, be in writing. Notices, demands and other communications
required or permitted under any Operative Document or Related Document must be given by any
of the following means: (A) personal service (including local and overnight courier), with
proof of delivery or attempted delivery retained; (B) electronic communication, whether by
electronic mail or telecopying (if confirmed in writing sent by United States first class
mail, return receipt requested); or (C) registered or certified first class mail, return
receipt requested. Such addresses may be changed by notice to the other parties given in
the same manner as provided above. Any notice or other communication sent pursuant to
clause (A) or (B) hereof will be deemed received upon such personal service or upon
dispatch by electronic means, and, if sent pursuant to clause (C) will be deemed received
five days following deposit in the mail. Notices, demands and other communications
required or permitted by any Related Document are to be sent to the addresses set forth
therein; and notices, demands and other communications required or permitted by under any
Operative Document are to be sent to the following addresses (or in the case of
communications to Participants, at the addresses set forth in Schedule 1 to the
Participation Agreement):
Address of BNPPLC:
BNP Paribas Leasing Corporation
00000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxx, Managing Director
00000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxx, Managing Director
Telecopy: (000) 000-0000
Email: xxxxx.xxx@xxxxxxxx.xxxxxxxxxx.xxx
Email: xxxxx.xxx@xxxxxxxx.xxxxxxxxxx.xxx
Address of LRC:
Xxx Research Corporation
0000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx XxXxxxx, Treasurer
0000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx XxXxxxx, Treasurer
Telecopy: (000) 000-0000
Email: Xxxx.Xxxxxxx@xxxxx.xxx
Email: Xxxx.Xxxxxxx@xxxxx.xxx
with a copy to:
Xxx Research Corporation
0000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx, Director of General Legal Services
0000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx, Director of General Legal Services
Telecopy: (000) 000-0000
Email: Xxxxxx.Xxxxxxxx@xxxxx.xxx
Email: Xxxxxx.Xxxxxxxx@xxxxx.xxx
However, any party to any Operative Document or Related Document may change its address above or in
the Related Document, as applicable, by written notice to the other parties to such Operative
Document or Related Document given in accordance with this provision.
2. Severability. If any term or provision of any Operative Document or the
application thereof is to any extent held by a court of competent jurisdiction to be invalid and
unenforceable, the remainder of such document, or the application of such term or provision other
than to the extent to which it is invalid or unenforceable, will not be affected thereby.
3. No Merger. There will be no merger of the Lease or of the leasehold
estate created by the Lease or of the mortgage and security interest granted in subparagraph
4(C)(1) of the Lease with any other interest in the Property by reason of the fact that the same
person may acquire or hold, directly or indirectly, the Lease or the leasehold estate created
thereby or such mortgage and security interest and any other interest in the Property, unless all
Persons with an interest in the Property that would be adversely affected by any such merger
specifically agree in writing that such a merger has occurred. There will be no merger of the
Purchase Agreement or of the purchase options or obligations created by the Purchase Agreement with
any other interest in the Property by reason of the fact that the same person may acquire or hold,
directly or indirectly, the rights and options granted by the Purchase Agreement and any other interest in
the Property, unless all Persons with an interest in the Property that would be adversely affected
by any such merger specifically agree in writing that such a merger has occurred.
4. No Implied Waiver. The failure of any party to any Operative
Document to insist at any time upon the strict performance of any covenant or agreement therein or
to exercise any option, right, power or remedy contained therein will not be construed as a waiver
or a relinquishment thereof for the future. The waiver of or redress for any breach of any
Operative Document by any party thereto will not prevent a similar subsequent act from constituting
a violation. Any express waiver of any provision of any Operative Document will affect only the
term or condition specified in such waiver and only for the time and in the manner specifically
stated therein. No waiver by any party to any Operative Document of any provision therein will be
deemed to have been made unless expressed in writing and signed by the party to be bound by
the
waiver. A receipt by any party to any Operative Document of any payment thereunder (including the
receipt by BNPPLC of any Rent paid under the Lease) with knowledge of the breach by another party
of any covenant or agreement contained in that or any other Operative Document will not be deemed a
waiver of such breach.
5. Entire and Only Agreements. The Operative Documents supersede any prior
negotiations and agreements between BNPPLC and LRC concerning the Property, and no amendment or
modification of any Operative Document will be binding or valid unless expressed in a writing
executed by all parties to such Operative Document.
6. Binding Effect. Except to the extent, if any, expressly provided to the
contrary in any Operative Document with respect to assignments thereof, all of the covenants,
agreements, terms and conditions to be observed and performed by the parties to the Operative
Documents will be applicable to and binding upon their respective successors and, to the extent
assignment is permitted thereunder, their respective assigns.
7. Time is of the Essence. Time is of the essence as to all obligations
created by the Operative Documents and as to all notices expressly required by the Operative
Documents.
8. Governing Law. Each Operative Document will be governed by and
construed in accordance with the laws of the State of California without regard to conflict or
choice of laws principles that might require the application of the laws of another jurisdiction.
9. Paragraph Headings. The paragraph and section headings contained in the
Operative Documents are for convenience only and will in no way enlarge or limit the scope or
meaning of the various and several provisions thereof.
10. Negotiated Documents. All parties to each Operative Document and their
counsel have reviewed and revised or requested revisions to such Operative Document, and the
usual rule of construction that any ambiguities are to be resolved against the drafting party will
not apply to the construction or interpretation of any Operative Documents or any amendments
thereof.
11. Terms Not Expressly Defined in an Operative Document. As used in
any Operative Document, a capitalized term that is not defined therein or in this Agreement, but is
defined in another Operative Document, will have the meaning ascribed to it in the other Operative
Document.
12. Other Terms and References. Words of any gender used in each Operative
Document will be held and construed to include any other gender, and words in the singular number
will be held to include the plural and vice versa, unless the context otherwise requires.
References in any Operative Document to Paragraphs, subparagraphs, Sections, subsections or
other
subdivisions refer to the corresponding Paragraphs, subparagraphs, Sections, subsections or
subdivisions of that Operative Document, unless specific reference is made to another document or
instrument. References in any Operative Document to any Schedule or Exhibit refer to the
corresponding Schedule or Exhibit attached to that Operative Document, which are made a part
thereof by such reference. All capitalized terms used in each Operative Document which refer to
other documents will be deemed to refer to such other documents as they may be renewed, extended,
supplemented, amended or otherwise modified from time to time, provided such documents are not
renewed, extended or modified in breach of any provision contained in the Operative Documents or,
in the case of any other document to which BNPPLC or LRC is a party or intended beneficiary,
without its consent. All accounting terms used but not specifically defined in any Operative
Document will be construed in accordance with GAAP. The words “this [Agreement]”, “herein”,
“hereof”, “hereby”, “hereunder” and words of similar import when used in each Operative Document
refer to that Operative Document as a whole and not to any particular subdivision unless expressly
so limited. The phrases “this Paragraph”, “this subparagraph”, “this Section”, “this subsection”
and similar phrases used in any Operative Document refer only to the Paragraph, subparagraph,
Section, subsection or other subdivision described in which the phrase occurs. As used in the
Operative Documents the word “or” is not exclusive, and the words “include”, “including” and
similar terms will be construed as if followed by “without limitation to”. Relative to the
determination of the beginning and end of any time period for which any payment may be required or
accrue, the word “from” means “from and including”, and the word “to” means “to but excluding”.
Similarly, relative to any such determination, the words “begin on” means “begin on and include”,
and the words “end on” means “end on but not include”. The rule of ejusdem generis will not be
applied to limit the generality of a term in any of the Operative Documents when followed by
specific examples. When used to qualify any representation or warranty made by a Person, the
phrases “to the knowledge of [such Person]” or “to the best knowledge of [such Person]” are
intended to mean only that such Person does not have knowledge of facts or circumstances which make
the representation or warranty false or misleading in some material respect; such phrases are not
intended to suggest that the Person does indeed know the representation or warranty is true.
13. Execution in Counterparts. To facilitate execution, each of the
Operative Documents may be executed in multiple identical counterparts. It will not be necessary
that the signature of, or on behalf of, each party, or that the signature of all persons required
to bind any party, appear on each counterpart. All counterparts, taken together, will collectively
constitute a single instrument. But it will not be necessary in making proof of any of the
Operative Documents to produce or account for more than a single counterpart containing the
respective signatures of, or on behalf of, each of the parties to such document. Any signature page
may be detached from one counterpart and then attached to a second counterpart with identical
provisions without impairing the legal effect of the signatures on the signature page. Signing and
sending a counterpart (or a signature page detached from the counterpart) by facsimile or other
electronic means to another party will have the same legal effect as signing and delivering an
original counterpart to the other party. A copy (including a copy produced by facsimile or
other
electronic means) of any signature page that has been signed by or on behalf of a party to any of
the Operative Documents will be as effective as the original signature page for the purpose of
proving such party’s agreement to be bound.
14. Not a Partnership, Etc. Nothing in any Operative Document is intended to
create any partnership, joint venture, or other joint enterprise between BNPPLC and LRC.
15. No Fiduciary Relationship Intended. Neither the execution of the
Operative Documents or other documents referenced in this Agreement nor the administration thereof
by BNPPLC will create any fiduciary obligations of BNPPLC or any other Interested Party to LRC.
Moreover, BNPPLC and LRC disclaim any intent to create any fiduciary or special relationship
between themselves under or by reason of the Operative Documents or the transactions described
therein or any other documents or agreements referenced therein.
[The signature pages follow.]
IN WITNESS WHEREOF, this Common Definitions and Provisions Agreement (Livermore/Parcel 6) is
executed to be effective as of December 18, 2007.
| BNP PARIBAS LEASING
CORPORATION, a Delaware corporation |
||||
| By: | /s/ Xxxxx Xxxxxxxxxx | |||
| Xxxxx Xxxxxxxxxx, Director | ||||
[Continuation of signature pages for Common Definitions and Provisions Agreement (Livermore/Parcel
6) dated as of December 18, 2007]
| XXX RESEARCH CORPORATION, a Delaware corporation |
||||
| By: | /s/ Xxxx XxXxxxx | |||
| Xxxx XxXxxxx, Treasurer | ||||
Annex 1
Notice of LIBOR Election
[Date]
BNP Paribas Leasing Corporation
00000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxx, Managing Director
00000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxx, Managing Director
Gentlemen:
Capitalized terms used in this letter are intended to have the meanings assigned to them in
the Common Definitions and Provisions Agreement (Livermore/Parcel 6) dated as of December 18, 2007,
between you, BNP Paribas Leasing Corporation, and the undersigned, Xxx Research Corporation (the
“Common Definitions and Provisions Agreement”). This letter constitutes notice of our election to
make the first Base Rent Period beginning on or after , 200___ subject to a LIBOR
Election of month(s).
We understand that until a different election becomes effective as provided in definition of
“LIBOR Election” in the Common Definitions and Provisions Agreement, all subsequent Base Rent
Periods will also be subject to the same LIBOR Election.
NOTE: YOU ARE ENTITLED TO DISREGARD THIS NOTICE IF THE NUMBER OF MONTHS SPECIFIED ABOVE IS
NOT A PERMITTED NUMBER UNDER THE DEFINITION OF “LIBOR ELECTION” IN THE COMMON DEFINITIONS AND
PROVISIONS AGREEMENT, OR IF THE DATE SPECIFIED ABOVE CONCERNING THE COMMENCEMENT OF THE LIBOR
ELECTION IS LESS THAN FIVE BUSINESS DAYS AFTER YOUR RECEIPT OF THIS NOTICE. HOWEVER, WE ASK THAT
YOU NOTIFY US IMMEDIATELY IF FOR ANY REASON YOU BELIEVE THIS NOTICE IS DEFECTIVE.
| XXX RESEARCH CORPORATION, a Delaware corporation |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Annex 2
Minimum Insurance Requirements
1. Definitions. For purposes of this Annex and the Agreement to which it is attached:
“Construction Period Policies” means insurance policies that satisfy the
minimum requirements set forth in this Annex and that LRC has obtained or required its
Contractors to obtain with respect to the Property.
“Contractor” will include subcontractors of any tier.
“ISO” means Insurance Services Office.
2. Basic Understandings Regarding Insurance. LRC represents, acknowledges and agrees that:
The insurance coverages required herein represent minimum requirements of BNPPLC and other
Interested Parties and are not to be construed to void or limit LRC’s indemnities or other
agreements in the Agreement to which this Annex is attached or in any other Operative
Document, nor do the coverages required herein represent in any manner a determination of
the insurance coverages LRC should or should not maintain for its own protection.
Any Construction Period Policies not previously obtained are being obtained by LRC (or by
the primary Contractor engaged by LRC to perform the Work), and the initial premiums for
such Construction Period Policies are being paid, contemporaneously with the execution of
the Agreement to which this Annex is attached. In the case of the Builder’s Risk Policy, the
premium has been or is being prepaid for the entire period from the Effective Date to the
projected Completion Date.
The Construction Period Policies will not be materially modified or terminated without
BNPPLC’s prior written consent in each case by reason of any act or omission on the part of
LRC or anyone acting for or authorized to act for LRC (including any Contractor engaged by
LRC to obtain the Construction Period Policies for LRC). Without limiting the foregoing,
neither LRC nor any Contractor will do or authorize any act or omission that could cause the
coverage provided by the Builder’s Risk Policy to expire or lapse with respect to the
Improvements, before the Completion Date.
3. Conditions Affecting All Insurance Required Herein.
Annex 2 — Page 1
| A. | Maintenance of Insurance. All insurance coverage will be maintained in effect with limits not less than those set forth below at all times during the term of the Agreement to which this Annex is attached, and the policies under which such coverage is provided will contain no endorsements that limit or exclude coverages in any manner which is inconsistent with these requirements. | ||
| B. | Status and Rating of Insurance Company. All insurance coverage will be written through insurance companies admitted to do business in the State of California and rated upon each renewal no less than A-: VII in the then most current edition of A. M. Best’s Key Rating Guide. | ||
| C. | Limits of Liability. The limits of liability may be provided by a single policy of insurance or by a combination of primary and umbrella/excess policies, but in no event will the total limits of liability available for any one occurrence or accident be less than the amount required herein. | ||
| D. | Claims Against Aggregate. BNPPLC must be notified in writing by LRC at BNPPLC’s address set forth herein immediately upon knowledge of possible damage claims that might cause a reduction below seventy-five percent (75%) of any aggregate limit of any policy required herein. | ||
| E. | Notice of Cancellation, Nonrenewal, or Material Reduction in Coverage. LRC will not cancel, fail to renew, or make or permit any material reduction in any of the policies or certificates described herein without the prior written consent of BNPPLC. | ||
| All insurance policies under which BNPPLC is required to be an additional insured or loss payee must include the following express provision or words of like effect: |
In the event of cancellation, non-renewal or material reduction in coverage
affecting the [the additional insured/loss payee], thirty days’ prior
written notice will be given to the [the additional insured/loss payee].
| F. | Additional Insured Status. Additional insured status will be provided in favor of BNPPLC and other Interested Parties on all insurance required herein except workers’ compensation and employer’s liability. Additional insured status on the general liability insurance will be provided by a form of policy endorsement that does not limit the coverage provided thereunder to BNPPLC (or any party required by the Operative Documents to be an additional insured) by reason of its |
Annex 2 — Page 2
| negligent acts or omissions (sole or otherwise) on or about the Property or by reason of other insurance available to it. Further, such endorsement must not limit coverage in favor of any additional insured to claims for which a primary insured has agreed to indemnify the additional insured. | |||
| G. | Waiver of Subrogation. All insurance coverage carried by LRC with respect to the Work or the Property, whether required herein or not, will provide a waiver of subrogation in favor of BNPPLC and other Interested Parties in regard to all occurrences on or about the Property. | ||
| H. | Primary Liability. All insurance coverage required herein will be primary to all other insurance available to BNPPLC and other Interested Parties, collectively or individually, with BNPPLC and other Interested Parties’ insurance being excess, secondary and non-contributing. Where necessary, coverage will be endorsed to provide such primary liability. | ||
| I. | Deductible/Retention. No insurance required herein will contain a deductible or self-insured retention in excess of the amounts outlined in Part 7.E below, unless BNPPLC has given its prior written approval of a higher deductible or self-insured retention. After the Completion Date, all deductibles and/or retentions will be paid by, assumed by, for the account of, and at LRC’s sole risk. Prior to the Completion Date, however, nothing herein will be construed to make LRC liable for losses resulting from deductibles applicable to the property insurance covering the Property so long as LRC does not increase those deductibles to amounts higher than permitted by the property insurance specifications in Part 7.E below. |
4. Commercial General Liability Insurance.
| A. | Coverage: Commercial general liability insurance will cover liability arising from any occurrence on or about the Land or from any operations conducted on or about the Land, including but not limited to tort liability assumed under any of the Operative Documents. Further, defense will be provided as an additional benefit and not included within the limit of liability. | ||
| B. | Form: Commercial General Liability Occurrence form (ISO CG 0001 dated 12 04, or an equivalent substitute form providing the same or greater coverage, and in any case written to provide primary coverage to BNPPLC as provided in Part 3.H. above). | ||
| C. | Amount of Insurance: Coverage will be provided with limits of not less than: |
Annex 2 — Page 3
| i. | Each Occurrence Limit | $ | 1,000,000 | |||||
| ii. | General Aggregate Limit | $ | 2,000,000 | |||||
| iii. | Product-Completed Operations Aggregate Limit | $ | 2,000,000 | |||||
| iv. | Personal and Advertising Injury Limit | $ | 1,000,000 |
| D. | Required Endorsements: |
| i. | Additional Insured. | status required in 3.F., above. | ||||
| ii. | Aggregate Per Location: * | The aggregate limit will apply separately to each project through use of an Aggregate Limit of Insurance Per Location endorsement (ISO CG 2504 1185 or its equivalent). | ||||
| iii. | Aggregate Per Project: * | The aggregate limit will apply separately to each project through use of an Aggregate Limit of Insurance Per Project endorsement (ISO CG 2503 1185 or its equivalent). | ||||
| iv. | Notice of Cancellation, Nonrenewal or Reduction in Coverage: | as required in 3.E., above. | ||||
| v. | Personal Injury Liability: * | The personal injury contractual liability exclusion will be deleted. | ||||
| vi. | Primary Liability: | as required in 3.H., above. | ||||
| vii. | Waiver of Subrogation: | as required in 3.G., above. |
* Required only in Construction Period Policies. After the Completion Date, requirements
marked by an asterisk will construed as if replaced by the words “[intentionally deleted]”.
5. Workers’ Compensation/Employer’s Liability Insurance.
| A. | Coverage: Such insurance will cover liability arising out of LRC’s employment of workers and anyone for whom LRC may be liable for workers’ compensation claims. | ||
| B. | Amount of Insurance: Coverage will be provided with a limit of not less than: | ||
| i. | Workers’ Compensation: Statutory limits. | ||
| ii. | Employer’s Liability: $1,000,000 each accident and each disease. |
6. Umbrella/Excess Liability Insurance.
Annex 2 — Page 4
A. Coverage: Such insurance will be excess over and be no less broad than all
coverages described above and will include a drop-down provision if commercially available.
B. Form: This policy will have the same inception and expiration dates as the
commercial general liability insurance required above or a nonconcurrency endorsement.
C. Amount of Insurance: Coverage will be provided with a limit of not less than
$20,000,000.
7. Property Insurance.
A Insureds: Property insurance protection will extend to BNPPLC as a Named Insured or
as the loss payee; and the policy will be modified if necessary so that the protection afforded to
BNPPLC not be reduced or impaired by acts or omissions of LRC or any other beneficiary or insured.
Such modification of the policy may be by endorsement comparable to a standard mortgagee clause;
not limited, however, by its terms to BNPPLC ‘s rights “as a mortgagee” and not conditioned upon
rights of the insurer to be subrogated to BNPPLC’s rights under the Operative Documents in the
event of a payment of insurance proceeds to BNPPLC.
B. Covered Property: Such insurance will cover :
| i. | all Improvements and any equipment made or to be made a permanent part of the Property; | ||
| ii. | all structure(s) under construction; |
||
| iii. | all property including materials and supplies on site for installation; | ||
| iv. | all property including materials and supplies at other locations but intended for use at the site; | ||
| v. | all property including materials and supplies in transit to the site for installation; and | ||
| vi. | all temporary structures (e.g., scaffolding, falsework, and temporary buildings) located at the site. |
C. Form: Coverage will be in “special form” (with coverages at least comparable to
the forms of property insurance formerly called “all risk”) and will include theft, flood,
earthquake, and earthquake sprinkler leakage and be provided on a completed-value basis with no
co-insurance provision. No protective safeguard warranty will be permitted. If required during
any period of construction to prevent a loss or impairment of coverage, coverage will be provided
under a builder’s risk policy, with an endorsement to the termination of coverage provision to
permit occupancy of the covered property.
D. Amount of Insurance: Coverage will be provided in an amount equal at all
times to the full replacement value and debris removal exclusive of land, foundation, footings,
Annex 2 — Page 5
excavations and grading.
E. Deductibles. Deductibles will not exceed the following:
| i. | All Risks of Direct Damage, Per Occurrence, except flood and earthquake: | $50,000 | ||||
| ii. | Delayed Opening Waiting Period: | 15 Days, except 30 Days for Earthquake | ||||
| iii. | Flood, Per Occurrence: | $50,000 or excess of NFIP if in Flood Zone A | ||||
| iv. | Earthquake and Earthquake Sprinkler Leakage, Per Occurrence: | $250,000 or 5% of insured value of Improvements, whichever is greater | ||||
| v. | Water Damage: | $100,000 |
F. Termination of Coverage: The termination of coverage provision will be endorsed
to permit occupancy of the covered property being constructed. This insurance will be maintained
in effect, unless otherwise provided for the Operative Documents, until the earliest of the
following dates:
| i. | the date on which all persons and organizations who are insureds under the policy agree that it is terminated; | ||
| ii. | any termination or expiration of the Lease upon the Designated Sale Date, which is the date upon which final payment is expected under the Operative Documents; or | ||
| iii. | the date on which the insurable interests in the Covered Property of all insureds other than LRC have ceased; |
G. Waiver of Subrogation: The waiver of subrogation provision will be endorsed as
follows:
Should a covered loss be subrogated, either in whole or in part, your rights to any recovery
will come first, and we will be entitled to a recovery only after you have been fully
compensated for the loss.
H. Required Endorsements and Minimum Sublimits. After the Completion Date,
all property insurance policies must include endorsements and minimum sublimits as necessary to
provide coverages not significantly less than the coverages maintained by LRC under policies
covering other significant properties owned or occupied by LRC. (Note: For purposes of comparing
minimum sublimits required by the preceding sentence, dollar amounts will be
Annex 2 — Page 6
considered as percentages of the estimated value of the improvements and other property
insured. Thus, for example, LRC may, without violating this requirement maintain a minimum
sublimit applicable to the Improvements which is one-third the amount of the same sublimit
applicable to another building owned by LRC if the other building has an estimated value that is
three times higher than the estimated value of the Improvements.) Also, on and before the
Completion Date, property insurance policies must include endorsements and minimum sublimits as
follows:
| Minimum Sublimit or | ||||||
| Description | Other Requirement | |||||
| i | Additional Expenses Due To Delay In Completion of the Project, including but not limited to interest expenses and other financing costs, insurance expenses, professional fees and taxes: | $5,000,000 | ||||
| ii | Agreed Value: | $85,000,000 | ||||
| iii | Boiler & Machinery on a Comprehensive Basis: |
Included without sublimit | ||||
| iv | Damage Arising From Error, Omission or Deficiency in Design, Specifications, Workmanship or Materials, Including Collapse: |
Included without sublimit | ||||
| v | Debris Removal: | Lower of $1,000,000 or 25% of loss | ||||
| vi | Earthquake: | $10,000,000 | ||||
| vii | Earthquake Sprinkler Leakage: | Included without sublimit | ||||
| vii | Contractor’s Extra Expense and Expediting Expenses combined: | 250,000 or 20% of the amount of insured physical loss or damage, whichever is less | ||||
| ix | Flood: | $80,000,000 | ||||
| x | Freezing: | Included without sublimit | ||||
| xi | Notice of Cancellation or Reduction: | As required in 3.F. above | ||||
| xii | Occupancy Clause: | As required in 7.F above | ||||
| xiii | Building Ordinance and Increased Cost of Construction Coverage: | $1,000,000 | ||||
| xiv | Pollutant Clean-Up and Removal, provided that such condition ensues following a loss from a covered peril: | $1,000,000 | ||||
Annex 2 — Page 7
| Minimum Sublimit or | ||||||
| Description | Other Requirement | |||||
| xv | Emergency Property Protection Expense: | $100,000 | ||||
| xvi | Replacement Cost: | Included without sublimit | ||||
| xvii | Testing: | Included without sublimit | ||||
| xviii | Waiver of Subrogation: | As Required in 7.G. above. | ||||
Also, prior to the Completion Date, no sublimits will be permitted except as specified above, and
in regard to sublimits specified above for a general category of expenses (such as the first
category, “Additional Expenses Due To Delay In Completion of the Project”) no lower sublimit will
be permitted for any subcategory included therein (such as “interest expenses and other financing
costs”).
8. Evidence of Insurance.
| A. | Provision of Evidence. Evidence of the insurance coverage required to be maintained by LRC, represented by certificates of insurance, evidence of insurance, and endorsements issued by the insurance company or its legal agent, must be furnished to BNPPLC prior to the Effective Date. New certificates of insurance, evidence of insurance, and endorsements will be provided to BNPPLC prior to or concurrent with the termination date of the current certificates of insurance, evidence of insurance, and endorsements. | ||
| B. | Form: |
| i | All property insurance required herein will be evidenced by XXXXX form 28, “Evidence of Property Insurance”, in each case completed and interlineated in a manner satisfactory to BNPPLC to show compliance with the requirements of this Annex. If requested by BNPPLC, copies of endorsements must be attached to such form. | ||
| ii. | All liability insurance required herein will be evidenced by XXXXX form 25, “Certificate of Insurance”, in each case completed and interlineated in a manner satisfactory to BNPPLC to show compliance with the requirements of this Annex. If requested by BNPPLC, copies of endorsements must be attached to such form. |
| C. | Specifications: Such certificates of insurance, evidence of insurance, and endorsements will specify: |
| i. | BNPPLC as a certificate holder with correct mailing address as provided by BNPPLC. | ||
| ii. | Insured’s name, which must match that on the Agreement to which this Annex is attached. | ||
| iii. | Insurance companies affording each coverage, policy number of each coverage, policy dates of each coverage, all coverages and limits |
Annex 2 — Page 8
| described herein, and signature of authorized representative of insurance company. | |||
| iv. | Producer of the certificate with correct address and phone number listed. | ||
| v. | Additional insured status required by this Annex. | ||
| vi. | Aggregate limits (per project) required by this Annex. | ||
| vii. | Amount of any deductibles and/or retentions. | ||
| viii. | Cancellation, nonrenewal and reduction in coverage notification as required by this Annex. Additionally, the words “endeavor to” and “but failure to mail such notice will impose no obligation or liability of any kind upon Company, it agents or representatives” will be deleted from the cancellation provision of the XXXXX 25 certificate of insurance form; and changes to the same effect will be made in any other certificate or evidence of insurance provided to satisfy the requirements of this Annex. | ||
| ix. | Primary status required by this Annex. |
||
| x. | Waivers of subrogation required by this Annex. |
| D. | Failure to Obtain: Failure of BNPPLC to demand such certificate or other evidence of full compliance with these insurance requirements or failure of BNPPLC to identify a deficiency in the form of evidence that is provided will not be construed as a waiver of LRC’s obligation to maintain such insurance. | ||
| E. | Certified Copies: LRC must provide to BNPPLC copies, certified as complete and correct by an authorized agent of the applicable insurer, of all insurance policies required herein within ten (10) days after receipt of a request for such copies from BNPPLC subject to availability from the insurance company. | ||
| F. | Commencement of Construction. Commencement of construction without provision of the required certificate of insurance, evidence of insurance and/or required endorsements, or without compliance with any other provision of this Annex or the Agreement to which it is attached, will not constitute a waiver by BNPPLC of any rights. BNPPLC will have the right, but not the obligation, of prohibiting LRC or any Contractor from performing any work until such certificate of insurance, evidence of insurance and/or required endorsements are received by BNPPLC. |
Annex 2 — Page 9
Annex 3
Participation Agreement Form
Attached to and made a part of this Annex is a form of Participation Agreement that may be executed
prior to the Base Rent Commencement Date and used by BNPPLC to share risks and rewards of the
Operative Documents with other parties.
PARTICIPATION AGREEMENT
(LIVERMORE/PARCEL 6)
(LIVERMORE/PARCEL 6)
This PARTICIPATION AGREEMENT (LIVERMORE/PARCEL 6) (this “Agreement”), dated as of ___________,
20___ is made by and between BNP PARIBAS LEASING CORPORATION (“BNPPLC”), a Delaware corporation, and
the banks or other financial institutions designated as Participants in the signature pages to this
Agreement (whether one or more, “Participants”).
RECITALS
BNPPLC and Xxx Research Corporation (“LRC”), a Delaware corporation, have executed a Common
Definitions and Provisions Agreement (Livermore/Parcel 6) (the “Common Definitions and Provisions
Agreement”) dated as of December 18, 2007 (the “Original Effective Date”). As used in this
Agreement, capitalized terms defined in the Common Definitions and Provisions Agreement and not
otherwise defined in this Agreement are intended to have the respective meanings assigned to them
in the Common Definitions and Provisions Agreement.
At the request of LRC, BNPPLC has acquired the Land and any existing Improvements on the Land
prior to the execution of this Agreement.
Prior to the execution of this Agreement, BNPPLC and LRC have executed a Construction
Agreement (Livermore/Parcel 6) (the “Construction Agreement”), a Lease Agreement (Livermore/Parcel
6) (the “Lease”) and a Closing Certificate and Agreement (Livermore/Parcel 6) (the “Closing
Certificate”), all dated as of the Original Effective Date. Pursuant to the Construction
Agreement, BNPPLC has provided and agreed to provide funding for the construction of new
Improvements. When the term of the Lease commences, the Lease will cover the Land and all
Improvements on the Land.
Pursuant to an Agreement Regarding Purchase and Remarketing Options (Livermore/Parcel 6) dated
as of the Original Effective Date (the “Purchase Agreement”) between BNPPLC and LRC, LRC will have
the right to purchase, among other things, BNPPLC’s interest in the Land and the Improvements on
and subject to the terms and conditions set forth therein. Pursuant to a Pledge Agreement
(Livermore/Parcel 6) dated as of the Original Effective Date (the “Pledge Agreement”), LRC must
maintain securities and cash collateral to secure its obligations under the Construction Agreement
and the Purchase Agreement.
Annex 3 — Page 2
By this Agreement, the parties desire to evidence the Participants’ agreement to participate
with BNPPLC in certain of the risks and rewards to BNPPLC of the Common Definitions and Provisions
Agreement, the Construction Agreement, the Lease, the Closing Certificate, the Purchase Agreement
and the Pledge Agreement (collectively, the “Operative Documents”), which participation is to be
accomplished through the exchange of promises to make payments computed by reference to the sums
paid or received by BNPPLC from time to time pursuant to the Operative Documents, all as more
particularly provided below.
AGREEMENTS
Participants agree to participate with BNPPLC in, and BNPPLC agrees to share with the
Participants, the risks and rewards of the Operative Documents upon and subject to the following
terms, provisions, covenants, agreements and conditions:
1 Additional Definitions. As used in this Agreement, capitalized terms defined above have
the respective meanings assigned to them above; as indicated above, capitalized terms that are
defined in the Common Definitions and Provisions Agreement and that are used but not otherwise
defined have the respective meanings assigned to them in the Common Definitions and Provisions
Agreement; and, the following terms have the following respective meanings:
(A) “Anticipated Advances” means the following, to the extent they have not already been
advanced on or prior to the effective date of this Agreement: (1) the Initial Advance and other
amounts (other than Commitment Fees and Carrying Costs) that are added to the Outstanding
Construction Allowance from time to time pursuant to Paragraph 3 of the Construction
Agreement, and (2) advances of funds by or on behalf of BNPPLC to or on behalf of LRC pursuant to
Paragraph 4 of the Construction Agreement. Any other amounts paid out-of-pocket by BNPPLC
from time to time that BNPPLC is entitled to treat as Construction Advances pursuant to the express
terms of the Construction Agreement (see subparagraphs 2(G)(2) and 8(A) of the
Construction Agreement) will constitute Protective Advances, not Anticipated Advances, for purposes
of this Agreement.
Notwithstanding the foregoing, Extraordinary Force Majeure Advances, if any, will not constitute
Anticipated Advances or Protective Advances for purposes of this Agreement.
(B) “Back to Back Construction-Period Indemnity Claim” means a claim by BNPPLC against LRC for
payment of a Covered Construction Period Loss that BNPPLC may assert under the Construction
Agreement in order to cover or reimburse a claim made against BNPPLC itself by another Interested
Party because of Uncovered Construction-Period Participant Losses suffered by the other Interested
Party.
Annex 3 — Page 3
(C) “Back to Back Construction-Period Indemnity Payment” means a payment made to BNPPLC by or
on behalf of LRC in satisfaction of a Back to Back Construction-Period Indemnity Claim.
(D) “Bank Specific Charges” means payments made to BNPPLC by or on behalf of LRC for the
account of a Participant or any other Interested Party under subparagraph 5(B) or 5(C) of
the Lease. Bank Specific Charges include, for example, payments made to compensate a Participant
for an increase in costs related to advances made by the Participant hereunder and attributable to
a Banking Rules Change.
(E) “Collateral” has the meaning assigned to it in the Pledge Agreement.
(F) “Critical Event” means any of the following which has occurred and is continuing and is
known to BNPPLC:
(1) any failure of LRC to pay Base Rent or any Supplemental Payment within three
Business Days of the date it becomes due;
(2) any failure of LRC to make any payment required by the Operative Documents (other
than Base Rent or any Supplemental Payment) within thirty days of the date it becomes due;
(3) any material failure of LRC to maintain the Property as required by the Lease;
(4) any material title encumbrance (other than a Permitted Encumbrance) is discovered
or asserted against the Property;
(5) any Event of Default;
(6) any condemnation proceedings are brought against the Property or any portion
thereof or any material damage to the Property is caused by fire or other casualty;
(7) LRC shall fail to promptly repair any significant damage to the Property or apply
insurance or condemnation proceeds as required by the Operative Documents;
(8) any 97-10/Meltdown Event;
(9) any delivery by LRC of a Pre-lease Force Majeure Event Notice under and as defined
in the Construction Agreement;
Annex 3 — Page 4
(10) the occurrence prior to the Completion Date of any Termination of LRC’s Work under
and as defined in the Construction Agreement.
(G) “Critical Remedy” means BNPPLC’s right to do any of the following: (a) file a lawsuit
against LRC to enforce the Operative Documents or seek judicial foreclosure of the lien against the
Real Property granted in Exhibit B to the Lease; (b) send a notice to terminate LRC’s
rights and obligations to continue Work as provided in subparagraph 7(C) of the
Construction Agreement; (c) make the election to accelerate the Designated Sale Date as described
in the definition thereof in the Common Definitions and Provisions Agreement; (d) exercise the Put
Option as provided in subparagraph 3(A) of the Purchase Agreement if the conditions
specified in that subparagraph have been satisfied; or (e) withdraw Cash Collateral (as defined in
the Pledge Agreement) for application against obligations secured by the Pledge Agreement or
otherwise take action to cause a sale or disposition of Collateral to generate proceeds to be
applied to such obligations.
(H) “Defaulting Participant” means any Participant that has failed to make a payment when due
to BNPPLC equal to the Participant’s Percentage of an Anticipated Advance as required by
subparagraph 3(B) below.
(I) “Deferred Construction-Period Compensation” means any additional amount paid or payable to
BNPPLC pursuant to the Purchase Agreement only because of — and which BNPPLC would not be paid or
allowed to retain but for — Extraordinary Force Majeure Advances or other Losses that are included
in any Balance of Unpaid Construction Period Losses, other than any such Losses which (a) qualify
as Protective Advances hereunder, or (b) consist of reductions in Carrying Costs or Base Rent
resulting from any Pre-lease Force Majeure Losses not paid or reimbursed by Extraordinary Force
Majeure Advances. (Should the Property not be sold by BNPPLC until after LRC no longer has any
right to purchase or arrange a purchase by an Applicable Purchaser pursuant to the Purchase
Agreement, sales proceeds — net of sales expenses — will nevertheless be allocated for purposes of
this Agreement among Net Sales Proceeds, Deferred Construction-Period Compensation and Unrecovered
Protective Advances as if LRC had arranged the sale pursuant to the Purchase Agreement.)
(J) “Deposit Taker’s Agreement” has the meaning assigned to it in the Pledge Agreement.
(K) “Distributable Payments” means any payments actually received by BNPPLC under the
Operative Documents as (or in satisfaction of LRC’s obligations for) any of the following or
interest on past due amounts thereof:
(1) Base Rent;
Annex 3 — Page 5
(2) Qualified Prepayments;
(3) 97-10/Prepayments;
(4) Bank Specific Charges;
(5) Back to Back Construction-Period Indemnity Payments;
(6) any Supplemental Payment; and
(7) Net Sales Proceeds and any Deferred Construction-Period Compensation that BNPPLC
excluded from sales proceeds received by it for purposes of calculating Net Sales Proceeds.
(L) “Extraordinary Force Majeure Advance” means any Construction Advance or portion thereof
made because of, and that would not have been required of BNPPLC but for, an Increased Funding
Commitment given by BNPPLC in response to a Notice of LRC’s Intent to Terminate Because of a Force
Majeure Event as provided in the Construction Agreement.
(M) “Increased Funding Commitment” has the meaning assigned to it in the Construction
Agreement.
(N) “Late Payment Rate” means (a) for each day (other than as set forth in clause (b) of this
sentence) the Fed Funds Rate or (b) for the purpose of computing interest on past due payments for
each day following the fifth day after such payments first became due, a rate of two percent (2%)
per annum in excess of the Prime Rate then in effect; except that the Late Payment Rate will not,
notwithstanding anything to the contrary herein contained, exceed the maximum rate of interest
permitted by applicable law.
(O) “Major Stakeholder” means BNPPLC and any Participant who, at the time any determination
thereof is required, has a Percentage which exceeds thirty-four percent (34%) of the Percentages of
BNPPLC and of all the Participants then entitled to vote under subparagraph 6(A).
(P) “Majority” means, at the time any determination thereof is required, any of the
Participants and BNPPLC, the aggregate Percentages of which equal or exceed sixty-seven percent
(67%) of the Percentages of BNPPLC and of all the Participants then entitled to vote under
subparagraph 6(A).
(Q) “Net Cash Flow” means payments actually received by BNPPLC under the Operative Documents
as (or in satisfaction of LRC’s obligations for) Base Rent, Qualified Prepayments,
97-10/Prepayments or a Supplemental Payment or as interest on past due Base
Annex 3 — Page 6
Rent, Qualified Prepayments, 97-10/Prepayments or a Supplemental Payment; except that any
Deferred Construction-Period Compensation included in any Supplemental Payment will be deducted or
excluded from such payments for purposes of calculating Net Cash Flow; and except that any
Unrecovered Protective Advances for which any Participant has not fully reimbursed its Percentage
to BNPPLC as provided in subparagraph 3(C) may, at BNPPLC’s option, be deducted by BNPPLC from such
payments for purposes of calculating Net Cash Flow. By deducting any Unrecovered Protective
Advance in the calculation of Net Cash Flow, BNPPLC will be considered to have “recovered” such
Protective Advance for purposes of calculating “Excess Reimbursements” under and as defined in
subparagraph 3(C). Further, if BNPPLC deducts Unrecovered Protective Advances in the calculation of
Net Cash Flow, but later receives payment from LRC (in excess of other amounts then due from LRC)
for the same Protective Advances, such payment to BNPPLC by LRC will also constitute Net Cash Flow
for purposes of this Agreement.
As an alternative to deducting Unrecovered Protective Advances in the calculation of Net Cash Flow
as described above in this definition, BNPPLC may elect to exercise its right under subparagraph
4(B) to setoff (a) payments owed to it as reimbursement for such Unrecovered Protective Advance
from any Participant that has not already fully reimbursed its Percentage of such Unrecovered
Protective Advance to BNPPLC, against (b) payments that BNPPLC would otherwise be required to make
to such Participant because of BNPPLC’s receipt of those Net Sales Proceeds or other Distributable
Payments.
(R) “Net Sales Proceeds” means, subject to the deductions and exclusions described below in
this definition:
(1) all payments actually received by BNPPLC under the Purchase Agreement as (or in
satisfaction of LRC’s or an Applicable Purchaser’s obligations for) the purchase price for
BNPPLC’s interest in Property or in Escrowed Proceeds; and
(2) if the Property is not sold pursuant to the Purchase Agreement on the Designated
Sale Date, then all rents and sales, condemnation and insurance proceeds actually received
by BNPPLC (other than sales proceeds paid or to be paid by BNPPLC to LRC pursuant to
subparagraph 3(D) of the Purchase Agreement) from any sale or lease after the
Designated Sale Date of any interest in, or because of any subsequent taking or damage to,
the Property.
For purposes of calculating Net Sales Proceeds, the following will be deducted or excluded from
such payments (without duplication of any item): (i) any excess sales proceeds that BNPPLC is
required by the Purchase Agreement to pay over to LRC; (ii) any Deferred Construction-Period
Compensation; and (iii) any amounts applied by BNPPLC to pay, or received by BNPPLC as
reimbursement for, bona fide costs of a sale of the Property. Also, any other Unrecovered
Annex 3 — Page 7
Protective Advances for which any Participant has not fully reimbursed its Percentage to BNPPLC as
provided in subparagraph 3(C) may, at BNPPLC’s option, be deducted by BNPPLC from such payments
received by it for purposes of calculating Net Sales Proceeds Without limiting the foregoing,
after any Designated Sale Date upon which neither LRC nor an Applicable Purchaser purchases
BNPPLC’s interest in the Property, BNPPLC may, at its option, deduct the following as Unrecovered
Protective Advances: (x) ad valorem taxes, (y) insurance premiums; and (z) other Losses of every
kind suffered or incurred by BNPPLC (other than general overhead) with respect to the ownership,
operation or maintenance of the Property after the Designated Sale Date, other than Unrecovered
Protective Advances for which all Participants have paid BNPPLC their respective Percentages
thereof as required by subparagraph 3(C). By deducting any Unrecovered Protective Advances in the
calculation of Net Sales Proceeds, BNPPLC will be considered to have “recovered” such Protective
Advances for purposes of calculating Excess Reimbursements under and as defined in subparagraph
3(C). Also, if BNPPLC deducts Unrecovered Protective Advances in the calculation of Net Sales
Proceeds, but later receives payment from LRC (in excess of other amounts then due from LRC) for
the same Protective Advances, such payment to BNPPLC by LRC will constitute Net Sales Proceeds for
purposes of this Agreement.
As an alternative to deducting Unrecovered Protective Advances in the calculation of Net Sales
Proceeds as described above in this definition, BNPPLC may elect to exercise its right under
subparagraph 4(B) to setoff (a) payments owed to it as reimbursement for such Unrecovered
Protective Advance from any Participant that has not already fully reimbursed its Percentage of
such Unrecovered Protective Advance to BNPPLC, against (b) payments that BNPPLC would otherwise be
required to make to such Participant because of BNPPLC’s receipt of those Net Sales Proceeds or
other Distributable Payments.
(S) “Notice of LRC’s Intent to Terminate Because of a Force Majeure Event” has the meaning
assigned to it in the Construction Agreement.
(T) “Participants” means each of the undersigned parties designated as Participants in the
signature pages to this Agreement, and any other financial institutions which may hereafter become
parties to this Agreement by joining with BNPPLC in completing and executing a Participation
Agreement Supplement.
(U) “Participation Agreement Supplement” means a Participation Agreement Supplement in
substantially the form attached hereto as Exhibit A, completed and executed by BNPPLC and a
Participant, adding the Participant as a party to this Agreement, changing a Participant’s
Percentage or removing a Participant as a party to this Agreement.
(V) “Participation Amount” of BNPPLC or any Participant means the outstanding balance from
time to time of the
total investment made by BNPPLC under the Operative
Annex 3 — Page 8
Documents or by the applicable Participant hereunder, as determined by BNPPLC. The
Participation Amount of BNPPLC and each Participant will equal its share of the outstanding
principal balance that would be due from LRC from time to time if BNPPLC had made a loan (and the
Participants had participated in the loan) to LRC to finance LRC’s purchase of the Property and
construction of improvements authorized by the Construction Agreement, instead of BNPPLC’s having
acquired the Property and leased it to LRC as provided in the Operative Documents. Absent a
failure by any Participant to make a payment required by subparagraph 3(B) or some other unexpected
occurrence, it is expected that (a) the Participation Amounts of BNPPLC and the Participants will
always be in proportion to their respective Percentages set forth in Schedule 1, and (b) the total
Participation Amounts of BNPPLC and all Participants on and prior to the Designated Sale Date will
equal the Lease Balance computed from time to time as described in the Common Definitions and
Provisions Agreement.
Notwithstanding the foregoing, for purposes of calculations required by this Agreement that depend
on Participation Amounts, the funding of or with respect to any Extraordinary Force Majeure
Advances will not be included in Participation Amounts.
(W) “Percentage” of each Participant means, subject to change as provided in subparagraph 4(A)
and to change by a Participation Agreement Supplement, the percentage designated as the
Participant’s “Percentage” in Schedule 1. “Percentage” of BNPPLC means a percentage that, at the
time a determination of such Percentage is required hereunder, is equal to 100% less the sum of the
Percentages of all the Participants.
(X) “Protective Advances” means any payments, other than of Anticipated Advances or
Extraordinary Force Majeure Advances or Excluded Taxes, made by or on behalf of BNPPLC at any time
or from time to time because of, arising out of or related to, in whole or in part: (1) the
Property or the construction, protection, preservation, operation, ownership or sale thereof; (2)
any of the Operative Documents or the transactions contemplated therein; or (3) anything done by
BNPPLC to enforce the obligations of LRC under the Operative Documents (whether done upon BNPPLC’s
own initiative or upon the direction of the Majority or another Major Stakeholder). Protective
Advances will include any and all payments by BNPPLC (including those paid to attorneys,
accountants, experts and other advisors) for which LRC is obligated to indemnify or reimburse
BNPPLC by Paragraph 5 of the Lease or would be so obligated if the Term of Lease had
commenced. Protective Advances will also include any “Charges” that BNPPLC must pay to
any Deposit Taker under and as defined in Paragraph 7 of any Deposit Taker’s Agreement
executed by BNPPLC in the form attached as an Exhibit to the Pledge Agreement.
(Y) “Uncovered Construction-Period Participant Loss” means a Loss incurred or suffered by a
Participant (1) for which, if BNPPLC must pay or reimburse such Loss to the Participant, BNPPLC can
in turn require payment or reimbursement from LRC under the
Annex 3 — Page 9
indemnity against Covered Construction Period Losses set forth in the Construction Agreement
(e.g., Losses arising because of fraud, misapplication of funds, illegal acts, or willful
misconduct on the part of the LRC or its employees or agents or any other party for whom LRC is
responsible), and (2) for which the Participant is not otherwise indemnified directly by or
compensated by LRC or by insurance maintained by LRC.
(Z) “Unrecovered Protective Advances” means Protective Advances that have not been repaid to
BNPPLC by or on behalf of LRC and have not otherwise been previously recovered by BNPPLC through
deductions from Net Cash Flow or Net Sales Proceeds as provided in the definitions of those terms
above.
2 Payments From BNPPLC to Each Participant.
(A) Payments Computed by Reference to Net Cash Flow and Net Sales Proceeds. Upon the
actual receipt of any Net Cash Flow, Net Sales Proceeds or interest thereon, BNPPLC will pay each
Participant an amount equal to such Participant’s Percentage times such Net Cash Flow, Net Sales
Proceeds or interest, as the case may be.
(B) Payments Computed by Reference to Bank Specific Charges. If BNPPLC actually
receives any Bank Specific Charges (or interest thereon) for the account of a particular
Participant, then BNPPLC promises to promptly make a payment to such Participant equal to such Bank
Specific Charges (or interest thereon). If requested by any Participant, BNPPLC will make a demand
upon LRC for, and will endeavor in good faith to collect, payment of any Bank Specific Charges due
for the account of such Participant; provided, however, as an alternative to making any effort to
collect any Bank Specific Charge for any Participant, BNPPLC may instead assign to such Participant
the right to collect such Bank Specific Charge directly from LRC.
(C) Payments Computed by Reference to Back to Back Construction-Period Indemnity
Payments. If BNPPLC actually receives any Back to Back Construction-Period Indemnity Payment
(or interest thereon) in satisfaction of a Back to Back Construction-Period Indemnity Claim
asserted for Losses for which BNPPLC is obligated to a particular Participant, then BNPPLC promises
to make a payment to such Participant equal to such Back to Back Construction-Period Indemnity
Payment (or interest thereon). If a Participant incurs or suffers an Uncovered Construction-Period
Participant Loss, BNPPLC must compensate such Participant for the Uncovered Construction-Period
Participant Loss; subject to the condition, however, that BNPPLC’s obligation to so compensate a
Participant will be satisfied only from any Back to Back Construction-Period Indemnity Payments
received by BNPPLC on account of such obligation, it being understood that BNPPLC will have no
personal liability for any such obligation.
(D) Payments Computed by Reference to Deferred Construction-Period
Annex 3 — Page 10
Compensation. If BNPPLC actually receives any Deferred Construction-Period
Compensation, and if any Participant shared in the funding of Extraordinary Force Majeure Advances
or otherwise suffered Losses included in the Balance of Unpaid Construction Period Losses for which
such Deferred Construction-Period Compensation was paid, BNPPLC promises to pay to such Participant
an amount equal to a fraction of such Deferred Construction-Period Compensation. The numerator of
the fraction will equal the funding of Extraordinary Force Majeure Advances by such Participant and
any other Losses suffered by such Participant (and interest thereon) that are included in the
Deferred Construction-Period Compensation payable to BNPPLC; and the denominator will equal the
total Extraordinary Force Majeure Advances and any other Losses (and interest thereon) included in
the Deferred Construction-Period Compensation payable to BNPPLC.
If, however, BNPPLC and the Participants entitled to receive any payment pursuant to this
subparagraph did not share proportionately in the funding of all Extraordinary Force Majeure
Advances, then BNPPLC may make equitable adjustments to the fractions computed as described in the
preceding sentence. Such adjustments, if necessary, will have the effect of reallocating amounts
received because of reductions in Carrying Costs or Base Rent resulting from Pre-lease Force
Majeure Losses paid or reimbursed by Extraordinary Force Majeure Advances so that the parties who
did participate in the funding of the Extraordinary Force Majeure Advances will receive
compensation commensurate, to the extent possible, with the amounts and timing of their respective
fundings. For example, if two Participants provided equal funding of Extraordinary Force Majeure
Advances, but one of the Participants provided its funding earlier than the other,
then BNPPLC may adjust payments required by this subparagraph so that the Participant who provided
the earlier funding will receive an appropriately greater share of payments attributable to such
reductions in Carrying Costs or Base Rent.
(E) Timing; Manner of Payment. Each payment required of BNPPLC by this Article 2 must
be made prior to 1:00 P.M., Dallas, Texas time, on the same day that BNPPLC actually receives the
corresponding Distributable Payment (in good funds), if BNPPLC’s receipt of the corresponding
Distributable Payment occurs prior to 11:00 A.M., Dallas, Texas time; if, however, BNPPLC’s receipt
of the Distributable Payment (in good funds) occurs on any day after 11:00 A.M., Dallas, Texas
time, the payments required from BNPPLC to the Participants will not be considered past due until
12:00 noon, Dallas, Texas time, on the next Business Day. All payments from BNPPLC to the
Participants will be by transfer of federal funds pursuant to the wiring instructions set forth in
Schedule 1. Each payment owing to a Participant by BNPPLC will bear interest from the date it is
due until it is paid by BNPPLC at the Late Payment Rate calculated on the basis of a 360-day year.
Any payment by BNPPLC to a Participant after the time of day specified herein for such payment will
be deemed not paid until the next following Business Day for purposes of this Agreement.
(F) Meaning of Actually Received. As used herein with respect to payments,
Annex 3 — Page 11
“actually received” and words of like effect will include not only payments made directly from
LRC or any Applicable Purchaser, but also amounts paid by others on LRC’s behalf, amounts realized
by way of setoff, amounts realized upon the disposition of or through the application of collateral
under the Pledge Agreement or any other documents that may be given from time to time to secure
LRC’s obligations under the Lease or Purchase Agreement (net of the costs of disposition and
further net of any amounts that must be returned to LRC or any third party having an interest in
such collateral), and the fair market value of any property or services accepted in lieu of a cash
payment (though it is understood that nothing herein contained will require BNPPLC to accept
property or services in lieu of a cash payment required by the Operative Documents and that BNPPLC
will not agree to accept property or services in lieu of any cash Distributable Payment without the
Participants’ prior written consent). Such phrase will not, however, include amounts received by
BNPPLC from any of the Participants or from any affiliate of BNPPLC unless the context otherwise
indicates. Finally, if payments due to BNPPLC from LRC are reduced only because of credits
attributable to a reduction of BNPPLC’s taxes not
subject to indemnification by LRC, as described in subparagraph 4(C)(4) of the Lease,
then the payments that BNPPLC would have received but for the credits will be considered as having
been actually received by BNPPLC for purposes of this Agreement.
3 Payments From the Participants to BNPPLC.
(A) Initial Advance. Each of the original Participants joining in the execution of
this Agreement promises to pay to BNPPLC, contemporaneously with the execution of this Agreement,
an initial payment as set forth below such Participant’s name on Schedule 1, equal to the
Participant’s Percentage times the outstanding Lease Balance and (if the effective date of this
Agreement is not an Advance Date) any accrued Carrying Costs (as defined in the Construction
Agreement) yet to be added to the Outstanding Construction Allowance. BNPPLC will have no
obligation hereunder to any of the original Participants that fails to pay such initial payment.
Such initial payment will be due no later than 11:00 A.M., Dallas, Texas time, on the effective
date of this Agreement.
(B) Future Advances.
(1) General. Subject to the limitation set forth in subparagraph 3(B)(3), each
Participant promises to make payments to BNPPLC equal to such Participant’s Percentage (as
such Percentage may be adjusted from time to time pursuant to subparagraph 4(A)) times the
total amount of each Anticipated Advance made after the date hereof.
(2) Timing. Before 11:00 A.M., Dallas, Texas time, on the third Business Day
prior to any date on which BNPPLC expects to make a payment of an Anticipated Advance as
provided in Paragraphs 3 or 4 of the Construction Agreement, BNPPLC will
Annex 3 — Page 12
notify the Participants of the amount of such payment, and each Participant must pay to
BNPPLC such Participant’s Percentage times such amount prior to 11:00 A.M., Dallas, Texas
time, on such date. The failure of any Participant to make a payment required by this
subparagraph 3(B) will, for purposes of this Agreement, be deemed to continue until the
Participant actually pays all past due amounts required by this subparagraph 3(B), together
with interest thereon at the Late Payment Rate.
(3) Limitation on Advances by Participant. Notwithstanding anything herein to
the
contrary or any adjustment to any Participant’s Percentage pursuant to subparagraph
4(A), the total of all payments required of any Participant to BNPPLC by this subparagraph
3(B) (excluding interest on past due payments required by subparagraph 3(B)(2)) because of
Anticipated Advances (in contrast to Protective Advances) will not exceed the amount that
would cause such Participant’s Participation Amount to exceed the Participation Amount
specified for such Participant in Schedule 1.
(C) Protective Advances.
(1) General. If LRC fails to pay or reimburse any Protective Advance to
BNPPLC within ten days after BNPPLC makes a demand or request therefor, BNPPLC may notify
the Participants of such failure. Promptly after receipt of any such notice, each
Participant must pay to BNPPLC an amount equal to such Participant’s Percentage times the
Protective Advance described in the notice, EVEN IF THE PROTECTIVE ADVANCE WOULD NOT HAVE
BEEN PAID BUT FOR ANY ACTUAL OR ALLEGED NEGLIGENCE OF BNPPLC OR ITS AFFILIATES OR
REPRESENTATIVES AND EVEN IF THE PROTECTIVE ADVANCE WOULD NOT HAVE BEEN PAID BUT FOR ANY
ENVIRONMENTAL LOSSES OR OTHER MATTERS OR CIRCUMSTANCES FOR WHICH BNPPLC MAY BE STRICTLY
LIABLE. After any Participant has paid its respective Percentage times the Protective
Advance to BNPPLC, BNPPLC must pay to such Participant an amount equal to its Adjusted
Percentage (as defined below) times any subsequent Excess Reimbursement (as defined below)
or interest thereon actually received by BNPPLC for such Protective Advance. As used in
this Agreement, the “Adjusted Percentage” of any Participant will equal (i) such
Participant’s Percentage, divided by (ii) the sum of BNPPLC’s Percentage and the Percentages
of all Participants who have paid BNPPLC their respective shares of the Protective Advance
at issue. As used in this Agreement, the term “Excess Reimbursement” will mean, for the
Protective Advance at issue, (A) amounts reimbursed or paid by LRC to (or otherwise
recovered by) BNPPLC on account of such Protective Advance (except to the extent included in
Net Cash Flow or Net Sales Proceeds as provided in the definitions of those terms in
Paragraph 1), less (B) (i) the total amount of such Protective Advance, times (ii) the
Percentages of any Participants that have not paid BNPPLC their respective Percentages of
such Protective Advance.
Annex 3 — Page 13
(2) Exceptions. Notwithstanding the foregoing, no Participant will be required
to make any payment pursuant to this subparagraph 3(C) related to a Protective Advance that
is paid only
because of a transfer or assignment by BNPPLC of its right to receive Distributable
Payments or its rights and interests in and to the Property, the Operative Documents or this
Agreement to BNPPLC’s Affiliates. Further, nothing in this subparagraph 3(C) will be
construed to require a payment by a Participant for that portion or percentage, if any, of a
Protective Advance required only because of (and attributed by any applicable principles of
comparative fault to): (a) conduct of BNPPLC or a Representative of BNPPLC that has been
determined to constitute gross negligence or wilful misconduct in or as a necessary element
of a final judgment rendered against BNPPLC or such Representative by a court with
jurisdiction to make such determination; (b) any representation made by BNPPLC in the
Operative Documents that is false in any material respect and that BNPPLC knew was false at
the time of BNPPLC’s execution of the Operative Documents; (c) Liens Removable by BNPPLC; or
(d) any claim made by any Participant against BNPPLC because of any breach of this Agreement
by BNPPLC. As used in this Agreement, “gross negligence” of BNPPLC will not include any
negligent failure of BNPPLC to act when the duty to act would not have been imposed solely
but for BNPPLC’s status as owner of the Property.
(D) Extraordinary Force Majeure Advances. As provided in the Construction Agreement,
BNPPLC may respond to any Notice of LRC’s Intent to Terminate Because of a Force Majeure Event with
an Increased Commitment. If, however, BNPPLC responds with an Increased Funding Commitment, BNPPLC
must request that each Participant make a payment to BNPPLC equal to such Participant’s Percentage
times each resulting Extraordinary Force Majeure Advance on the date such Extraordinary Force
Majeure Advance is made. Further, although each Participant will be entitled to make such a
payment, no Participant will be required to do so unless and except to the extent (if any) it has
agreed in writing with BNPPLC to do so in order to induce BNPPLC to make the Increased Funding
Commitment. If a Participant does make such a payment to BNPPLC with respect to any Extraordinary
Force Majeure Advance, such Participant will be entitled to receive a share of subsequent payments
required of BNPPLC as provided in subparagraph 2(D).
(E) Method of Payment. All payments made by the Participants to BNPPLC will be made
by transfer of federal funds to BNPPLC pursuant to the wiring instructions for BNPPLC set forth on
Schedule 1. Each payment owing to BNPPLC by any Participant must be paid to BNPPLC on the date
specified herein or, if not specified, on demand and will bear interest from the date due until the
date paid by the Participant at the Late Payment Rate calculated on the basis of a 360-day year.
Any payment by a Participant to BNPPLC after the time of day specified herein for such payment will
be deemed not paid until the next following Business Day for purposes of this Agreement.
Annex 3 — Page 14
4 Other Adjustments, Deductions and Investments.
(A) Defaulting Participants.
(1) Adjustments Because of Defaulting Participants. If any Anticipated
Advances made after the date of this Agreement, with respect to which any Defaulting
Participant fails to make the payment required by subparagraph 3(B), the other Participants
will nonetheless be required to make the payments to BNPPLC required by subparagraph 3(B).
Further, in such event:
(a) BNPPLC may reduce any Defaulting Participant’s Percentage as needed to
prevent the Defaulting Participant from receiving a share of Net Cash Flow or Net
Sales Proceeds that is in excess of the percentage computed by dividing the
Participation Amount of such Defaulting Participant by the total Participation
Amounts of BNPPLC and all Participants collectively from time to time. Such
reduction in the Defaulting Participant’s Percentage will not cure such
Participant’s default hereunder nor constitute BNPPLC’s sole remedy for such
default, it being understood that other remedies provided herein or available at law
or in equity will be in addition to any such reduction.
(b) Without limiting BNPPLC’s other remedies hereunder, for purposes of
computing payments that would otherwise be required to a Defaulting Participant
because of BNPPLC’s receipt of Net Cash Flow, BNPPLC may deduct from any Net Cash
Flow actually received by BNPPLC the amount by which such Net Cash Flow was
increased by Commitment Fees that accrued after the date the Defaulting Participant
failed to make any payment required by subparagraph 3(B) and before the date upon
the Defaulting Participant completely cured any such failure.
(2) Defaulting Participant’s Cure. After a failure to make a payment required
by subparagraph 3(B), a Defaulting Participant may cure such failure by paying to BNPPLC all
or part of such payment and interest thereon at the Late Payment Rate. In no event,
however, will any such failure by a Defaulting Participant be considered cured before BNPPLC
has effectively recovered the payment, together with such interest, either by reason of
payments made to BNPPLC by the Defaulting Participant or by BNPPLC’s exercise of other
remedies as provided in subparagraph 4(A)(1)(a) or subparagraph 4(B).
(B) Setoff. In the event that one party to this
Agreement has failed to pay to a second party hereto any amount when due hereunder, the second
party may deduct such amount and interest thereon at the Late Payment Rate from any payments due
from it under this Agreement
Annex 3 — Page 15
to the first party. Without limitation, BNPPLC may setoff amounts owed to it by any
Defaulting Participant against any termination fee payable to such Defaulting Participant pursuant
to subparagraph 6(D) below if BNPPLC elects to reduce such Defaulting Participant’s Percentage to
zero as provided in subparagraph 6(D).
(C) Sharing of Payments. Each Participant agrees that if for any reason it obtains a
payment made by or for LRC that reduces any Distributable Payment, and if such payment will cause
such Participant to receive more than it would have received had such payment been made instead to
BNPPLC and generated the payments from BNPPLC to Participants contemplated in this Agreement, then
(1) such Participant must promptly purchase interests in the rights of other parties to this
Agreement as necessary to cause BNPPLC and all Participants to share payments as they otherwise
would have done under this Agreement, and (2) such other adjustments will be made from time to time
as is equitable to ensure that BNPPLC and all Participants share all payments of (or that operate
to reduce) Distributable Payments as they otherwise would have done under this Agreement. If,
however, the payment received by the purchasing Participant or any part thereof is later recovered
from the purchasing Participant, the purchase provided for in this subparagraph will be rescinded,
and the price paid by the purchasing Participant to other parties will be repaid by them to the
purchasing Participant to the extent of such recovery. Also, if the purchasing Participant is
required by court order to pay interest on the payment so recovered, then amounts repaid to the
purchasing Participant by the other parties will be repaid with interest, computed in the same
manner as the interest required by the court order. Nothing in this subparagraph will in any way
affect the right of BNPPLC or any Participant to obtain payment (whether by exercise of rights of
banker’s lien, set-off or counterclaim or otherwise) of indebtedness or obligations other than
those established by this Agreement or by any of the Operative Documents.
(D) Withholding Taxes. BNPPLC may deduct any United States withholding tax required
on payments to a Participant hereunder if the Participant fails to provide properly completed tax
forms which establish its right to be exempt from withholding as described in the next sentence;
and in any event the Participant must reimburse BNPPLC for any such taxes BNPPLC is required to pay
and that BNPPLC has not deducted. If BNPPLC is uncertain whether United States withholding tax is
required, BNPPLC may, after notice to the applicable Participant, deduct the withholding tax except
during any period when BNPPLC is excused from such withholding because of the Participant’s
delivery to BNPPLC of (i) a statement in duplicate conforming to the requirements of United States
Treasury Regulation Section 1.1441-5(b) or (ii) two duly completed copies of Internal Revenue
Service Form W-8BEN or any successor form thereto (“Form W-8BEN”) relating to the Participant and
claiming complete exemption from withholding tax on all amounts to be received by the Participant
pursuant to this Agreement or (iii) a valid United States Internal Revenue Service Form W-8ECI or
any successor form thereto (“Form W-8ECI”) relating to the Participant and claiming complete
exemption from withholding tax on all amounts to be received by the Participant pursuant to this
Agreement.
Annex 3 — Page 16
Any Participant will, if requested by BNPPLC, deliver to BNPPLC subsequent statements
with respect to such Treasury Regulation or two additional copies of Form W-8BEN or Form W-8ECI, or
the applicable replacement forms, on or before the date that any prior such delivered statements or
forms expire or become obsolete. If any such statement or form delivered by a Participant to
BNPPLC becomes invalid or inapplicable as to such Participant, such Participant must promptly
inform BNPPLC. The obligations of each Participant pursuant to this subparagraph 4(D) will survive
the termination of this Agreement.
(E) Order of Application. For purposes of this Agreement, as between BNPPLC and
Participants, BNPPLC will be entitled (but not required) to apply payments received from LRC under
the Operative Documents or from any sale of the Property or any interest therein or portion thereof
to pay or reimburse then outstanding Unrecovered Protective Advances (and interest thereon), if
any, regardless of how LRC may otherwise have designated such payments or may otherwise be entitled
to characterize such payments. In addition, BNPPLC may allocate any such payments to reduce
various outstanding Unrecovered Protective Advances in such order as BNPPLC deems appropriate.
(F) Investments Pending Dispute Resolution; Overnight Investments. Whenever BNPPLC in
good faith determines that it does not have all information needed to determine how payments to the
Participants must be made on account of any Distributable Payments, or whenever BNPPLC in good
faith determines that there is any dispute among the Participants about payments which must be made
on account of Distributable Payments, BNPPLC may choose to defer the payments to Participants which
are the subject of such missing information or dispute. However, to minimize any such deferral,
BNPPLC must attempt diligently to obtain any missing information needed to determine how payments
to the Participants must be made. Also, pending any such deferral, or if BNPPLC is otherwise
required to invest funds pending distribution to the Participants, BNPPLC must endeavor to invest
the payments at issue. In addition, if BNPPLC receives any Distributable Payment after 11:00 A.M.,
Dallas, Texas time, on any day and will not make payments to Participants in connection therewith
until the next Business Day pursuant to subparagraph 2(E), then BNPPLC must endeavor to invest such
payments overnight; however, BNPPLC will have no liability to the Participants if BNPPLC is unable
to make such investments. Investments by BNPPLC will be in the overnight federal funds market
pending distribution, and the interest earned on each dollar of principal so invested will be paid
to the Person entitled to receive such dollar of principal when the principal is paid to
such Person.
(G) Losses Resulting from Failure of Deposit Taker to Comply with the Pledge Agreement or
Related Agreements.
(1) BNPPLC’s Deposit Taker. If the Person acting as Deposit Taker for BNPPLC
under and as provided in the Pledge Agreement fails to comply with the
Annex 3 — Page 17
requirements of the Pledge Agreement or any Deposit Taker’s Agreement signed by it,
BNPPLC shall defend, indemnify, and hold harmless the Participants from and against any
Losses resulting from such failure. Without limiting the foregoing, if the failure of a
Deposit Taker for BNPPLC to comply strictly with the terms of its Deposit Taker’s Agreement
(including the requirement that any cash deposits be held in a deposit account located in
either New York, California or Illinois) causes, in whole or in part, the security interest
of BNPPLC in the Collateral held by such Deposit Taker to be unperfected, then any and all
Losses suffered as a result of such nonperfection shall be borne solely BNPPLC and shall not
be shared by the Participants.
(2) Participants’ Deposit Takers. If the Person acting as Deposit Taker for
any Participant under and as provided in the Pledge Agreement fails to comply with the
requirements of the Pledge Agreement or any Deposit Taker’s Agreement signed by it, such
Participant (the “Responsible Participant”) shall defend, indemnify, and hold harmless
BNPPLC and the other Participants from and against any Losses resulting from such failure.
Without limiting the foregoing, if the failure of a Deposit Taker for a Responsible
Participant to comply strictly with the terms of its Deposit Taker’s Agreement (including
the requirement that any cash deposits be held in a deposit account located in either New
York, California or Illinois) causes, in whole or in part, the security interest of BNPPLC
in the Collateral held by such Deposit Taker to be unperfected, then any and all Losses
suffered as a result of such nonperfection shall be borne solely by the Responsible
Participant and shall not be shared by BNPPLC or the other Participants.
5 Nature of this Agreement.
(A) No Conveyance. This Agreement is intended to create contractual rights in
favor of each Participant
to receive payments from BNPPLC, but it is not intended to convey or assign to the
Participants any interest in the Property or in the Operative Documents or in the payments to be
made to BNPPLC thereunder. In no event will any Participant exercise or attempt to exercise any
right or remedy of BNPPLC under the Operative Documents. Nothing in this Agreement will be
construed to grant to the Participants any right to enforce LRC’s obligations under the Operative
Documents, nor is in anything in this Agreement to be construed to allow any Participant to collect
directly from LRC any payments due under the Operative Documents. Although BNPPLC’s obligations
for payments to the Participants hereunder will be computed by reference to funds actually received
as Distributable Payments, this Agreement will not be construed as an assignment of Distributable
Payments themselves or any interest therein, it being understood that (without limiting or
expanding the dollar amount of such obligations) BNPPLC may satisfy such obligations from other
funds available to it, thereby reserving Distributable Payments for
Annex 3 — Page 18
payment to other creditors or for other purposes, as BNPPLC determines in its sole
discretion.
(B) Not a Partnership, Etc. Neither the execution of this Agreement, nor the
sharing of risks and rewards under the Operative Documents, nor any agreement to share in profits
or losses arising as a result of the transactions contemplated thereby, is intended to be or to
create, and the foregoing will be construed not to be or to create, any partnership, joint venture,
or other joint enterprise between BNPPLC and any Participant. Neither the execution of this
Agreement nor the management and administration of the Operative Documents or other related
documents by BNPPLC, nor any other right, duty or obligation of BNPPLC under or pursuant to this
Agreement is intended to be or to create any fiduciary relationship between BNPPLC and any
Participant.
6 Amendments; Waivers; Exercise of Rights and Remedies Against LRC.
(A) Limitations Upon the Rights of BNPPLC. Subject to subparagraph 6(C), but
notwithstanding anything else to the contrary in this Agreement:
(1) Unless BNPPLC and all Participants agree in writing, BNPPLC shall not execute any
waiver, modification or amendment of the Operative Documents that would:
(a) reduce or postpone (or reasonably be expected to reduce or postpone) any
payments that any Participant would, but for such modification or amendment, be
expected to receive from BNPPLC hereunder or reduce or postpone (or reasonably be
expected to reduce or postpone) any Distributable Payment that BNPPLC would, but for
such modification or amendment, be expected to receive (including, in each case, any
extension of the Designated Sale Date, or any modification of the definition
thereof);
(b) except as otherwise expressly contemplated in the Operative Documents,
release BNPPLC’s interest in all or any material part of the Property or in any
collateral pledged pursuant to the Pledge Agreement;
(c) modify the definitions of “Event of Default” under and as used in the
Operative Documents (provided, however, that a waiver of any particular Event of
Default permitted or required under the other provisions of this subparagraph 6(A)
will not be considered a modification of the definition of Event of Default in
violation of this provision);
(d) reduce the scope and coverage of the indemnities provided for the
Annex 3 — Page 19
benefit of Participants in the Operative Documents; or
(e) extend the Term of the Lease.
Subject to the preceding sentence, unless a Majority agrees in writing, BNPPLC shall not
execute or grant any waiver, modification or amendment that would excuse a Default that
constitutes or has caused a Critical Event.
However, this subparagraph 6(A)(1) will not limit BNPPLC’s right to forebear from exercising
rights against LRC to the extent BNPPLC determines in good faith that such forbearance is
appropriate and is permitted by the following subsections in this subparagraph 6(A).
(2) Further, if LRC exercises LRC’s Initial Remarketing Rights as provided in the
Purchase Agreement, but the price tendered to BNPPLC by an Applicable Purchaser
on the Designated Sale Date is less than the difference computed by subtracting the
Supplemental Payment paid to BNPPLC on the Designated Sale Date (if any) from the Break Even
Price (as defined in the Purchase Agreement), then BNPPLC will not complete the sale of the
Property to the Applicable Purchaser without the approval of a Majority. In other words, in
that event, BNPPLC will make a Decision Not to Sell at a Loss unless a Majority has approved
a sale of the Property to the Applicable Purchaser at a net price below the amount needed to
recover the Lease Balance.
(3) BNPPLC will, with reasonable promptness, provide the Participants with copies of
all default notices it sends or receives under the Operative Documents and notify the
Participants of any Event of Default or Critical Event of which BNPPLC is actually aware and
of any other matters known to BNPPLC which, in BNPPLC’s reasonable judgment, are likely to
materially affect the payments any Participant will be required to make or be entitled to
receive under this Agreement, but BNPPLC will not in any event be liable to any Participant
for BNPPLC’s failure to do so unless such failure constitutes gross negligence or wilful
misconduct on the part of BNPPLC.
(4) Upon the direction of the Majority, BNPPLC will execute any waiver, modification or
amendment of the Operative Documents requested by NAI or presented by BNPPLC to Participants
for their consideration; subject to the conditions, however, that: (i) BNPPLC’s execution of
the waiver, modification or amendment is not prohibited or excused by subparagraph 6(A)(1);
and (ii) the waiver, modification or amendment does not (x) increase the amount BNPPLC may
be required to pay to LRC or anyone else, or (y) reduce or postpone (and cannot reasonably
be expected to reduce or postpone) any payments that BNPPLC would, but for such modification
or amendment, be expected to receive, or (z) release BNPPLC’s interest in all or any
material part of the Property or in any collateral pledged pursuant to the Pledge Agreement.
Annex 3 — Page 20
(5) Before exercising any Critical Remedy, or if requested in writing by any
Participant at any time when an Event of Default or Critical Event has occurred and is
continuing, BNPPLC will call a meeting with the Participants to discuss what action by
BNPPLC, if any, is appropriate under the Operative Documents and what direction, if any, a
Majority may give to BNPPLC. The meeting will be scheduled during regular business hours
in the offices of BNPPLC’s Parent in Dallas, Texas, or another appropriate location in the
continental United States designated by a Majority, not earlier than five and not later than
twenty Business Days after BNPPLC’s receipt of the written request from any Participant.
(6) BNPPLC will be entitled to, and BNPPLC must comply with any direction of a Majority
or any Majority Stakeholder to, do any of the following when a Critical Event or an Event of
Default has occurred and is continuing: (a) send any default notice to LRC required to
establish an Event of Default; (b) exercise any one or more Critical Remedies, as then
permitted under the circumstances by the Operative Documents; or (c) exercise BNPPLC’s
rights (to the extent then permitted by the Operative Documents) to apply any Escrowed
Proceeds then held by BNPPLC as a Qualified Prepayment. BNPPLC will not, however, be liable
if it is unable, despite a good faith effort and reasonable diligence on its part, to carry
out such directions of a Majority or a Major Stakeholder for reasons beyond BNPPLC’s
control, including any refusal of any court to uphold or enforce rights or remedies that
BNPPLC is directed to exercise. In no event will any Participant instigate any suit or
other action directly against LRC with respect to the Operative Documents or the Property,
even if the Participant would, but for this Agreement, be entitled to do so as a party or
third party beneficiary under the Operative Documents or otherwise; provided, however, this
provision will not preclude any action by any Participant to enforce any right assigned to
it by BNPPLC as described in subparagraph 2(B) to collect any Bank Specific Charge from LRC.
(7) In the event LRC (a) (a) fails to make any 97-10/Prepayment when required to do so
by the Construction Agreement or fails to make any Supplemental Payment when required to do
so by the Purchase Agreement, or (b) fails to purchase BNPPLC’s interest in the Property on
any date a purchase is required by subparagraph 3(A) of the Purchase Agreement,,
then BNPPLC will be entitled to, and BNPPLC must (unless all the Participants otherwise
agree in writing), bring suit against LRC to enforce the Operative Documents in such form as
is recommended by reputable counsel no later than sixty days after the expiration of any
applicable cure or grace period given LRC by the express terms of the Purchase Agreement or
other Operative Documents, and thereafter BNPPLC must prosecute the suit with reasonable
diligence in accordance with the advice of reputable counsel. If BNPPLC acquires the
interests of
Annex 3 — Page 21
LRC in any of the Property as a result of such suit or otherwise, BNPPLC will
thereafter proceed with reasonable diligence to sell the Property in a commercially
reasonable manner to one or more bona fide third party purchasers and will in any event have
consummated the sale of the entire Property (through a single sale of the entire property or
a series of sales of parts) within five years following the date BNPPLC recovers possession
of the Property at the best price or prices BNPPLC believes are reasonably attainable within
such time. Further, after the Designated Sale Date and prior to BNPPLC’s sale of the entire
Property, BNPPLC will retain a property management company experienced in the area where the
Property is located to manage the operation of
the Property and pursue the leasing of any completed improvements which are part of the
Property. BNPPLC will not retain an Affiliate of BNPPLC to act as the property manager
except under a bona fide, arms-length management contract containing commercially reasonable
terms. Further, after the Designated Sale Date and until BNPPLC sells the Property, BNPPLC
will endeavor in good faith to do the following, consistent with any directions reasonably
given by the Majority: (i) maintain, or obtain the agreement of one or more tenants to
maintain, the Property in good order and repair, (ii) procure and maintain casualty
insurance against risks customarily insured against by owners of comparable properties, in
amounts sufficient to eliminate the effects of coinsurance, (iii) keep and allow the
Participants to review accurate books and records covering the operation of the Property,
and (iv) pay prior to delinquency all taxes and assessments lawfully levied against the
Property.
Notwithstanding the foregoing, any Participants that have failed to fund any amount due hereunder,
including any Percentage of an Anticipated Advance or a Protective Advance, and that have not
corrected such failure within five Business Days after being notified thereof, will have no voting
or consent rights under this subparagraph 6(A) and no rights to require BNPPLC to call a meeting or
to take any action pursuant to this subparagraph 6(A) until such failure is corrected.
(B) Rights of BNPPLC Generally. Subject to the limitations set forth in subparagraph
6(A):
(1) BNPPLC will have the exclusive right to take any action and to exercise any
available powers, rights and remedies to enforce the obligations of LRC under the Operative
Documents or to refrain from taking any such action or exercising any such power, right or
remedy.
(2) BNPPLC may (i) give any consent, waiver or approval requested by LRC with respect
to any construction or other approval contemplated in the Construction Agreement, Lease or
other Operative Documents or (ii) waive or consent to any adverse title claims affecting the
Property, subject the condition that, in either case, BNPPLC
Annex 3 — Page 22
believes in good faith that such action will not have a material adverse effect upon
the obligations or ability of LRC to make the payments required under the Operative
Documents or upon the rights and remedies, taken as whole, of BNPPLC under the Operative
Documents or upon the Participants hereunder.
(C) Conflicts and Purchase Agreement Defaults. Notwithstanding anything to the
contrary
herein contained, BNPPLC may, even over the objection of any Participant or the Majority, (A)
take any action recommended in writing by reputable counsel and believed in good faith by BNPPLC to
be required of BNPPLC by the Operative Documents or any law, rule or regulation to which BNPPLC is
subject, (B) refrain from taking any action if BNPPLC believes in good faith that the action is
prohibited by the Operative Documents or any law, rule or regulation to which BNPPLC is subject,
and if reputable counsel recommends in writing that BNPPLC refrain from taking the action, (C)
respond to any Notice of LRC’s Intent to Terminate Because of a Force Majeure Event by providing an
Increased Commitment as provided in the Construction Agreement; and (D) after notice to the
Participants, bring and prosecute a suit against LRC in the form recommended by and in accordance
with advice of reputable counsel at any time when a breach of the Operative Documents by LRC has
put BNPPLC (or any of its officers or employees) at risk of criminal prosecution or significant
liability to third parties or at any time after LRC or an Applicable Purchaser fails to purchase
the Property on the Designated Sale Date pursuant to the Purchase Agreement. (If, however, BNPPLC
takes any action or refrains from taking any action over the objection of a Majority pursuant to
the preceding sentence, BNPPLC must provide the Majority a written explanation of the basis for
BNPPLC’s conclusion that taking the action, or refraining from taking the action, is permitted by
the preceding sentence.) Further, nothing herein contained will be construed to require BNPPLC to
agree to modify the Operative Documents or to take any action or refrain from taking any action in
any manner that could increase BNPPLC’s liability to LRC or others, that could reduce or postpone
payments to which BNPPLC is entitled thereunder, or that could reduce the scope and coverage of the
indemnities provided for BNPPLC’s benefit in the Operative Documents.
(D) Refusal to Give Consents; Failure to Fund. If any Participant declines to consent
to any amendment, modification, waiver, release or consent for which the Participant’s consent is
requested or required by reason of this Agreement, or if any Participant fails to pay any amount
owed by it hereunder, BNPPLC will have the right, but not the obligation and without limiting any
other remedy of BNPPLC, to reduce such Participant’s Percentage to zero and to terminate such
Participant’s rights to receive any further payments under Article 2 of this Agreement by paying to
such Participant a termination fee equal to the sum of (but without duplication of any amount): (1)
the total amount such Participant would be entitled to receive from BNPPLC hereunder if the date of
such payment were the Designated Sale Date and on such date LRC had itself purchased BNPPLC’s
interest in the Property pursuant to and in accordance with the Purchase Agreement, and (2) the
amounts, if any, needed to repay to such Participant any payments previously made by it in
connection with Protective Advances pursuant to
Annex 3 — Page 23
subparagraph 3(C) and not otherwise previously repaid to such Participant hereunder.
7 Required Repayments. Each Participant must repay to BNPPLC, upon written request or
demand by BNPPLC (i) any sums paid by BNPPLC to such Participant under this Agreement from, or that
were computed by reference to, any Distributable Payment or other amounts which BNPPLC is required
to return or pay over to another party, whether pursuant to any bankruptcy or insolvency law or
proceeding or otherwise and (ii) any interest or other amount that BNPPLC is also required to pay
to another party with respect to such sums. Such repayment by a Participant will not constitute a
release of such Participant’s right to receive payments from BNPPLC hereunder upon BNPPLC’s receipt
of any such Distributable Payment or other amount (or any interest thereon) that BNPPLC may later
recover.
8 LRC Information; Independent Analysis. Prior to the execution of this Agreement,
BNPPLC has provided to the Participants copies of the executed Operative Documents and of various
certificates, legal opinions and other documents delivered to BNPPLC by or on behalf of LRC with
respect to the Operative Documents. In the future, BNPPLC will provide (A) to all Participants
copies of all amendments of the Operative Documents and financial statements, compliance
certificates and other certificates and legal opinions, if any, delivered by or on behalf of LRC in
connection therewith, and (B) to any Participant, as reasonably required to comply with a specific,
reasonable written request for information made by the Participant, copies of other information
readily available to BNPPLC concerning LRC and the transactions contemplated in the Operative
Documents. However, BNPPLC will not be liable for its failure to provide the Participants any of
the foregoing documents unless such failure constitutes gross negligence or wilful misconduct on
BNPPLC’s part, and any Attorney’s Fees or other costs of collecting, assembling and providing
copies of information requested by a Participant pursuant to clause (B) of the preceding sentence
must be reimbursed to BNPPLC by the Participant. Each Participant has entered into this Agreement
without reliance upon representations made outside this Agreement by BNPPLC or by any Affiliate,
agent or attorney of BNPPLC and only after independently reviewing such documents, independently
making such inspections, independently consulting with counsel and independently collecting and
verifying such information, as the Participant determined to be necessary or appropriate. Without
limiting the foregoing, each Participant has independently reviewed the Operative Documents and
independently made such inquiries and investigations of LRC and the Property as the Participant
determined to be necessary or appropriate before executing this Agreement.
9 Performance through Representatives. BNPPLC may perform any of its duties hereunder by
or through officers, directors, employees, attorneys or agents (collectively, “Representatives”),
and BNPPLC and its Representatives may rely, and will be fully protected in relying, upon any
communication or document believed by it or them to be genuine and correct and to have been signed
or made by the proper Person and, with respect to legal matters, upon the
opinion of counsel selected by BNPPLC. The Participants acknowledge that
Annex 3 — Page 24
BNPPLC’s Parent may act as agent for BNPPLC with respect to the administration of this Agreement,
and to the extent it does so, it will be a Representative of BNPPLC hereunder.
10 Duty of Care. Neither BNPPLC nor any of its Representatives will be liable or
responsible to any Participant or any other Person for any action taken or omitted to be taken by
BNPPLC or any of its Representatives under this Agreement or in relation to the Operative Documents
or the Property (even if negligent or related to a matter for which BNPPLC or any of its
Representatives may otherwise be strictly liable); except that this provision will not
excuse BNPPLC from liability for failing to make timely payments required of BNPPLC to the
Participants by the express provisions of Article 2 or subparagraph 3(C) or from liability for
actions taken or omitted to be taken by BNPPLC which constitute gross negligence or wilful
misconduct. Without limiting the generality of the foregoing, BNPPLC (1) may consult with legal
counsel (including counsel for LRC), independent public accountants and other experts selected by
it and will not be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (2) makes no warranty or
representation to the Participants except as provided in Article 12 and will not be responsible to
the Participants for any statements, warranties or representations made in or in connection with
the Operative Documents; (3) will not have any duty to the Participants to ascertain or to inquire
as to the performance or observance of any of the terms, covenants or conditions of the Operative
Documents or to inspect the Property or the books and records of LRC; (4) will not be responsible
to the Participants for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Operative Documents or any instrument or document furnished in
connection therewith; (5) may rely upon the representations and warranties of LRC and the
Participants in exercising its powers hereunder unless BNPPLC has actual knowledge that such
representations and warranties are untrue; and (6) will incur no liability under or in respect of
this Agreement or the Operative Documents by acting in reliance upon any notice, consent,
certificate or other instrument or writing (including any telecopy, telegram, cable or telex)
believed by it to be genuine and signed or sent by the proper Person or Persons.
11 Representations by Each Participant. Each Participant represents that as of the date
it became a party to this Agreement:
(A) Nature of this Agreement. It is the type of financial institution set forth under
its name in Schedule 1, or in the
Participation Agreement Schedule which made it a party to this Agreement, and it is entering
into this Agreement for its own account in respect of a commercial transaction made in ordinary
course of its business and not with a view to or in connection with any subparticipation, sale or
distribution to any Person (other than its Affiliates). Such Participant does not consider the
acceptance of the risk participation hereunder to constitute the “purchase” or “sale” of a
“security” within the meaning of any federal or state securities statute or law, or any rule or
regulations under any of the foregoing.
Annex 3 — Page 25
(B) No Default or Violation. To such Participant’s knowledge, the execution,
delivery and performance of this Agreement do not and will not contravene, result in a breach of or
constitute a default under any material contract or agreement to which the Participant is a party
or by which the Participant is bound and do not violate or contravene any law, order, decree, rule
or regulation to which the Participant is subject.
(C) No Suits. To such Participant’s knowledge, there are no judicial or
administrative actions, suits or proceedings involving the validity, enforceability or priority of
this Agreement and no such suits or proceedings are threatened.
(D) Organization. Such Participant is duly incorporated and legally existing under
the laws of jurisdiction indicated in Schedule 1 or in the Participation Agreement Schedule which
made it a party to this Agreement. Such Participant has all requisite power and all material
governmental certificates of authority, licenses, permits, qualifications and other documentation
necessary to perform its obligations under this Agreement.
(E) Enforceability. This Agreement constitutes a legal, valid and binding obligation
of such Participant, enforceable in accordance with its terms, subject to bankruptcy and other laws
affecting creditors’ rights generally and general equitable principles. The execution and delivery
of, and performance under, this Agreement are within such Participant’s powers and have been duly
authorized by all requisite action and are not in contravention of the powers of the charter or
other corporate papers of the Participant.
(F) No Funding With Plan Assets. Such Participant has not and will not provide
advances required by this Agreement from the assets of any employee benefit plan (or its related
trust).
12 Representations by BNPPLC. BNPPLC represents to each Participant, as of the date such
Participant became a party to this Agreement, that:
(A) No Default or Violation. To BNPPLC’s knowledge, its execution, delivery and
performance of this Agreement and the Operative Documents do not contravene, result in a breach of
or constitute a default under any material contract or agreement to which BNPPLC is a party or by
which BNPPLC is bound and do not violate or contravene any law, order, decree, rule or regulation
to which BNPPLC is subject.
(B) No Suits. To BNPPLC’s knowledge, there are no judicial or administrative actions,
suits or proceedings involving the validity, enforceability or priority of this Agreement and no
such suits or proceedings are threatened.
(C) Organization. BNPPLC is duly incorporated and legally existing under the
laws
Annex 3 — Page 26
of Delaware. BNPPLC has all requisite power and all material governmental certificates of
authority, licenses, permits, qualifications and other documentation necessary to perform its
obligations under this Agreement.
(D) Enforceability. This Agreement and the Operative Documents constitute legal,
valid and binding obligations of BNPPLC, enforceable in accordance with their respective terms,
subject to bankruptcy and other laws affecting creditors’ rights generally and general equitable
principles. BNPPLC’s execution and delivery of, and performance under, this Agreement and the
Operative Documents are within BNPPLC’s powers and have been duly authorized by all requisite
action and are not in contravention of the powers of the charter, by-laws or other corporate papers
of BNPPLC; except that BNPPLC makes no representation or warranty that conditions imposed by any
state or local Applicable Laws to the purchase, ownership, lease, financing or operation of the
Property have been satisfied.
(E) Liens Removable by BNPPLC. BNPPLC will not create or permit any Liens Removable
by BNPPLC not claimed by, through or under any of the Participants (other than BNPPLC’s Affiliates)
without LRC’s consent.
13 Assignments.
(A) By the Participants Generally. Except as expressly provided below, no
Participant may assign or attempt to assign any interest in or rights under this Agreement without
the prior written consent of BNPPLC and LRC, which consent will not be unreasonably withheld so
long as the Participant requesting the approval is not in default hereunder; however, this
provision will not prevent a Participant from transferring its rights hereunder to its Affiliates
or to any other Participants who are already parties to this Agreement. Notwithstanding any
permitted assignment by a Participant, if the assignment is to any Person that does not qualify as
a “Participant” for purposes of the Operative Documents (which, as more particularly provided in
the definition of Participant in the Common Definitions and Provisions Agreement, may require the
written approval of such Person by LRC), then such Participant’s obligations under this Agreement
will remain unchanged, such Participant will remain primarily responsible for the performance of
its obligations hereunder, and BNPPLC may continue to deal solely and directly with such
Participant in connection with all rights and obligations under this Agreement. In the event,
however, of a permitted assignment by a
Participant to a Person that does qualify as a “Participant” for purposes of the Operative
Documents, accomplished by the execution of appropriate Participation Agreement Supplements as
herein provided, the assigning Participant will not be liable for any failure by the assignee to
fulfill the obligations assumed hereunder by the assignee by reason of such assignment.
(B) By BNPPLC. Except as expressly provided herein, BNPPLC may not assign or
attempt to assign any rights under or interest in the Operative Documents or this Agreement or
Annex 3 — Page 27
any
interest in the Property without all of the Participants’ prior written consents, which consents
will not be unreasonably withheld. By a Participation Agreement Supplement, BNPPLC may, without
the prior written consent of any Participant, assign participations in the Operative Documents or
the payments required to BNPPLC thereunder to any then existing Participant and to other financial
institutions or Affiliates of financial institutions so long as BNPPLC has received any approval of
LRC required by the Lease. In addition, BNPPLC may assign its right to receive Distributable
Payments and its rights and interests in and to the Property, the Operative Documents and this
Agreement to Affiliates of BNPPLC or other Persons that do not become Participants, but in such
event BNPPLC’s obligations under this Agreement will remain unchanged, BNPPLC will remain primarily
responsible for the performance of its obligations hereunder, and all Distributable Payments
received by any such Affiliates or other Persons as assignee of BNPPLC will, for purposes of
computing payments required to any Participant hereunder, be considered as received by BNPPLC. In
addition, BNPPLC will be permitted to transfer any rights or interests as BNPPLC believes in good
faith to be necessary to satisfy the Operative Documents or Applicable Laws.
(C) Execution of Participation Agreement Supplements. Promptly after the execution of
a Participation Agreement Supplement by BNPPLC and any Participant, BNPPLC will provide a copy
thereof to all other Participants, but the other Participants need not join in or approve the
Participation Agreement Supplement for it to be effective.
(D) Regulation A. Notwithstanding subparagraphs 13(A) or 13(B), a Participant may
assign and pledge all or any portion of its rights under this Agreement to any Federal Reserve Bank
as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve
System and any Operating Circulars issued by such Federal Reserve Bank.
(E) Costs. Each Participant must pay all costs incurred by BNPPLC in connection with
any permitted assignment by or through such Participant, including, but not limited to, reasonable
fees and disbursements of its counsel, and any transfer taxes or other taxes assessed because of
such assignment which LRC is not required to pay under the Lease.
14 GOVERNING LAW; SUBMISSION TO PROCESS; WAIVER OF JURY
TRIAL. This Agreement will be deemed a contract made under the laws of the State of
Texas and will be construed and enforced in accordance with and governed by the laws of the State
of Texas and the laws of the United States of America, without regard to principles of conflict of
laws. Each of BNPPLC and the Participants hereby irrevocably submits itself to the non-exclusive
jurisdiction of the state and the federal courts sitting in Dallas, Texas, and agrees and consents
that service of process may be made upon it in any legal proceeding relating to this Agreement by
any means allowed under Texas or federal law. Each of BNPPLC and the Participants hereby waives
and agrees not to assert, by
Annex 3 — Page 28
way of motion, as a defense or otherwise, that any such proceeding
which is brought in a court in Dallas, Texas is brought in an inconvenient forum or that the venue
thereof is improper. Each of BNPPLC and the Participants, knowingly, voluntarily and intentionally
waives any right to a jury trial of any dispute relating to this agreement and agrees that
any such dispute will be tried before a judge sitting without a jury.
15 Termination. This Agreement will terminate on the first date on which all obligations
of LRC under the Operative Documents have been indefeasibly paid or otherwise satisfied or excused,
BNPPLC has ceased to have any rights in the Property and each party hereto has fully performed its
obligations hereunder to the other parties hereto. The agreements of BNPPLC and the Participants
in subparagraph 3(C) (which concerns payments by Participants of their respective Percentages of
Protective Advances) will survive the termination of this Agreement. Following any sale of the
Property by BNPPLC pursuant to the Purchase Agreement and the payment to any Participant of all
amounts payable to it hereunder (including, without limitation, an amount equal to such
Participant’s Percentage of all Net Sales Proceeds paid by LRC or the Applicable Purchaser on the
Designated Sale Date), the Participant will, if asked to do so by BNPPLC or LRC, execute and
deliver a quitclaim and release (in recordable form) as to the Property in favor of LRC or the
Applicable Purchaser.
16 Miscellaneous.
(A) Reliance by Others. None of the provisions of this Agreement will inure to the
benefit of any Person other than the Participants and BNPPLC and BNPPLC’s Representatives;
consequently, no Persons other than the Participants, BNPPLC and BNPPLC’s Representatives may rely
upon or raise as a defense, in any manner whatsoever, the failure of any Participant or BNPPLC to
comply with the provisions of this Agreement. None of the Participants nor BNPPLC will incur any
liability to any other Person for any act of omission of another.
Notwithstanding the foregoing, however, LRC will be a third party beneficiary of each
Participant’s obligations to make advances as provided in subparagraph 3(B) above, of the
representations of each Participant in Paragraph 11, of each Participant’s agreement to provided a
release and quitclaim of the Property pursuant to the last sentence of Paragraph 15, and of each
Participant’s agreements in Paragraph 17. As a third party beneficiary of the obligations of the
Participants specified in the preceding sentence, LRC will have standing to exercise any remedies
available at law or in equity (including the recovery of monetary damages) against any Participant
in LRC’s own name if that Participant breaches such obligations. Further, BNPPLC may assign to LRC
any claims it may have against a Participant because of the Participant’s breach of any of the
provisions referenced in this paragraph or because of any adverse title claim made against the
Property by, through or under the Participant. Each Participant acknowledges that LRC will be
relying on the commitments of the Participant to make payments required by
Annex 3 — Page 29
this Agreement to permit
funding of Anticipated Advances by BNPPLC under the Construction Agreement.
(B) Waivers, Etc. No delay or omission by any party to exercise any right
under this Agreement will impair any such right, nor will it be construed to be a waiver thereof.
No waiver of any single breach or default under this Agreement will be deemed a waiver of any other
breach or default. Any waiver, consent, or approval under this Agreement must be in writing to be
effective.
(C) Severability. The illegality or unenforceability of any provision of this
Agreement will not in any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement.
(D) Notices. All notices, demands, approvals, consents and other communications to be
made hereunder to or by the parties hereto must, to be effective for purpose of this Agreement, be
in writing. Notices, demands and other communications required or permitted hereunder are to be
sent to the addresses set forth in Schedule 1 to this Agreement and must be given by any of the
following means: (A) personal service, with proof of delivery or attempted delivery retained; (B)
electronic communication, whether by telex, telegram or telecopying (if confirmed in writing sent
by United States first class mail, return receipt requested); or (C) registered or certified first
class mail, return receipt requested. Such addresses may be changed by notice to the other parties
given in the same manner as provided above. Any notice or other communication sent pursuant to
clause (A) or (C) hereof will be deemed received (whether or not actually received) upon first
attempted delivery at the proper notice address on any Business Day between 9:00 A.M. and 5:00
P.M., and any notice or other communication sent pursuant to clause (B) hereof will be deemed
received upon dispatch by electronic means.
(E) Construction. Words of any gender used in this Agreement will be held and
construed to include any other gender, and words in the singular number will be held to include the
plural and vice versa, unless the context otherwise requires. References herein to Paragraphs,
subparagraphs or other subdivisions will refer to the
corresponding Paragraph, subparagraphs or subdivisions of this Agreement, unless specific
reference is made to another document or instrument. References herein to any Schedule or Exhibit
will refer to the corresponding Schedule or Exhibit attached hereto, which will be made a part
hereof by such reference. All capitalized terms used in this Agreement which refer to other
documents will be deemed to refer to such other documents as they may be renewed, extended,
supplemented, amended or otherwise modified from time to time so long as the documents are not
renewed, extended or modified in breach of any provision contained herein or therein or, in the
case of any other document to which BNPPLC is a party or of which BNPPLC is an intended
beneficiary, without the consent of BNPPLC. All accounting terms used but not specifically defined
herein will be construed in accordance with GAAP. The words “this Agreement”, “herein”, “hereof”,
"hereby”, “hereunder” and words of similar import when used in this
Annex 3 — Page 30
Agreement refer to this
Agreement as a whole and not to any particular subdivision unless expressly so limited. The
phrases “this Paragraph” and “this subparagraph” and “this subsection” and similar phrases used
herein refer only to the Paragraphs, subparagraphs or subsections hereof in which the phrase
occurs. As used herein the word “or” is not exclusive. As used herein the words “include”,
“including” and similar terms will be construed as if followed by “without limitation to”.
Relative to the determination of the beginning and end of any time period for which any payment may
be required or accrue, the word “from” means “from and including”, and the word “to” means “to but
excluding”. Similarly, relative to any such determination, the words “begin on” means “begin on
and include”, and the words “end on” means “end on but not include”. The rule of ejusdem generis
will not be applied to limit the generality of a term in any of the Operative Documents when
followed by specific examples. When used to qualify any representation or warranty made by a
Person, the phrases “to the knowledge of [such Person]” or “to the best knowledge of [such Person]”
are intended to mean only that such Person does not have knowledge of facts or circumstances which
make the representation or warranty false or misleading in some material respect; such phrases are
not intended to suggest that the Person does indeed know the representation or warranty is true.
(F) Headings. The paragraph and section headings contained in this Agreement are for
convenience only and will in no way enlarge or limit the scope or meaning of the various and
several provisions hereof.
(G) Entire Agreement. This Agreement embodies the entire agreement between the
parties, supersedes all prior agreements and understandings between the parties, if any, relating
to the subject matter hereof, and may be amended only by an instrument in writing executed by an
authorized representative of each party to be bound by such amendment.
(H) Further Assurances. Subject to any restriction in the Operative Documents, each
of BNPPLC and the Participants will promptly execute and deliver all further instruments and
documents and take all further action as
any of them may reasonably request in order to evidence the agreements made hereunder and
otherwise to effect the purposes of this Agreement.
(I) Impairment of Operative Documents. Nothing herein contained (including the
provisions governing the application of payments in subparagraph 4(E) and the provisions
authorizing assignments by BNPPLC in subparagraph 13(B)) will impair or modify LRC’s rights under
the Operative Documents.
(J) Books and Records. BNPPLC will keep accurate books and records in which
full, true and correct entries will be promptly made as to all payments made and received
concerning the Property and will permit all such books and records (excluding any information that
would otherwise be protected by BNPPLC’s attorney client privilege) to be inspected and copied by
the Participants and their duly accredited representatives at all times during reasonable business
Annex 3 — Page 31
hours after five Business Days advance notice. This subparagraph will not be construed as
requiring BNPPLC to regularly maintain separate books and records relating exclusively to the
Property; however, upon reasonable request of a Participant, BNPPLC will, at the requesting
Participant’s expense, construct or abstract from its regularly maintained books and records
information required by this subparagraph relating to the Property.
(K) Definition of Knowledge. Representations and warranties made in this Agreement
but limited to the “knowledge” of BNPPLC or any Participant, as the case may be, will be limited to
the present actual knowledge of the officers or other employees of such party primarily responsible
for reviewing and negotiating this Agreement. Also, as used herein with respect to the existence
of any facts or circumstances after the date of this Agreement, “knowledge” of BNPPLC or a
Participant, as the case may be, will be limited to the present actual knowledge at the time in
question of the officers or other employees of such party primarily responsible for administering
this Agreement. However, none of the officers or employees of any party to this Agreement will be
personally liable for any representations or warranties made herein or for taking or failing to
take any action required hereby.
(L) Attorneys’ Fees. If any party to this Agreement commences any legal action or
other proceeding against another party hereto to enforce any of the terms of this Agreement, or
because of any breach of the other party or dispute hereunder, the successful or prevailing party
will be entitled to recover from the nonprevailing party all Attorneys’ Fees incurred in connection
therewith, whether or not such controversy, claim or dispute is prosecuted to a final judgment.
Any such Attorneys’ Fees incurred by any party in enforcing a judgment in its favor under this
Agreement will be recoverable separately from such judgment, and the obligation for such Attorneys’
Fees is intended to be severable from other
provisions of this Agreement and not to be merged into any such judgment.
(M) Execution in Counterparts. To facilitate execution, this Agreement may be
executed in multiple identical counterparts. It will not be necessary that the signature of, or on
behalf of, each party, or that the signature of all persons required to bind any party, appear on
each counterpart. All counterparts, taken together, will collectively constitute a single
instrument. But it will not be necessary in making proof of any of this Agreement to produce or
account for more than a single counterpart containing the respective signatures of, or on behalf
of, each of the parties to this Agreement. Any signature page may be detached from one counterpart
and then attached to a second counterpart with identical provisions without impairing the legal
effect of the signatures on the signature page. Signing and sending a counterpart (or a signature
page detached from the counterpart) by facsimile or other electronic means to another party will
have the same legal effect as signing and delivering an original counterpart to the other party. A
copy (including a copy produced by facsimile or other electronic means) of any signature page that
has been signed by or on behalf of a party to this Agreement will be as effective as the original
signature page for the purpose of proving such
Annex 3 — Page 32
party’s agreement to be bound.
17 Confidentiality Concerning LRC’s Proprietary Information. Each Participant agrees to
use reasonable precautions to keep confidential any “proprietary information” of LRC (as defined in
the Lease) that such Participant may receive from BNPPLC or LRC or otherwise discover with respect
to LRC or LRC’s business as a result of Participant’s involvement with the transactions
contemplated in the Operative Documents, except for disclosures: (i) specifically and previously
authorized in writing by LRC; (ii) to any assignee of the Participant as to any interest hereunder
so long as such assignee has agreed in writing to use its reasonable efforts to keep such
information confidential in accordance with the terms of this Paragraph; (iii) to legal counsel,
accountants, auditors, environmental consultants and other professional advisors to the Participant
so long as the Participant informs such persons in writing (if practicable) of the confidential
nature of such information and directs them to treat such information confidentially; (iv) to
regulatory officials having jurisdiction over the Participant (although the disclosing party will
request confidential treatment of the disclosed information, if practicable); (v) as required by
legal process (although the disclosing party will request confidential treatment of the disclosed
information, if practicable); and (vi) of information which has previously become publicly
available through the actions or inactions of a person other than the Participant not, to the
Participant’s knowledge, in breach of an obligation of confidentiality to LRC. Further,
notwithstanding any other contrary provision contained in this Agreement or any related agreements
by which any Participant is bound, BNPPLC and Participants (and each of their respective employees,
representatives or other agents) may disclose, without limitation of any kind, the tax treatment
and tax structure of the transactions contemplated by this Agreement or the Operative Documents and
all materials of any kind (including opinions or other tax analyses) that are provided to such
party relating to such tax treatment and tax structure, other than any information for which
non-disclosure is reasonably necessary in order to comply with applicable securities laws.
[The signature pages follow.]
Annex 3 — Page 33
IN WITNESS WHEREOF, this Participation Agreement (Livermore/Parcel 6) is executed to be
effective as of
____________, 20__.
| BNP PARIBAS LEASING CORPORATION, a Delaware corporation |
||||
| By: | ||||
| Xxxxx X. Xxx, Managing Director | ||||
Annex 3 — Page 34
[Continuation of signature pages for Participation Agreement (Livermore/Parcel 6) dated as of
____________, 20___.]
| By: | ||||
| Name (print): | ||||
| Title (print): | ||||
Annex 3 — Page 35
SCHEDULE
1
| A. BNPPLC: BNP PARIBAS LEASING CORPORATION, a Delaware corporation | ||||||
| 1. | Amount Retained: $_________ | |||||
| 2. | Initial Percentage: ___% | |||||
| 3. | Address for Notices: | |||||
| BNP Paribas Leasing Corporation 00000 Xxxxx Xxxxx Xxxxx 000 Xxxxxx, Xxxxx 00000 |
||||||
| Attention: Xxxxx X. Xxx | ||||||
| Telephone: (000) 000-0000 Facsimile: (000) 000-0000 |
||||||
| 4. | Payment Instructions: | |||||
| Federal Reserve Bank of New York ABA 000000000 BNP Paribas /BNP/ BNP Houston /AC/ 14334000176 /Ref/ LRC/ _______ Operating Lease |
||||||
Annex 3 — Page 36
SCHEDULE
1
| 5. | Operations Contact: | |||||
| BNP Paribas Leasing Corporation 00000 Xxxxx Xxxxx Xxxxx 000 Xxxxxx, Xxxxx 00000 |
||||||
| Attention: Xxxxx X. Xxx | ||||||
| Telephone: (000) 000-0000 Facsimile: (000) 000-0000 |
Annex 3 — Page 37
SCHEDULE
1
| B. Participant: ____________________ | ||||||
| 1. | Amount of Participation: $_________ | |||||
| 2. | Percentage: ___% | |||||
| 3. | Address for Notices: | |||||
| _____________________ | ||||||
| _____________________ | ||||||
| _____________________ | ||||||
| Telephone: (___) ___-___ Facsimile: (___) ___-___ |
||||||
| 4. | Payment Instructions: | |||||
| ***Federal Reserve Bank of New York ABA __________________ ______________________ ______________________ /Ref/ __________________ |
||||||
| 5. | Operations Contact: | |||||
| ______________________ | ||||||
| ______________________ | ||||||
| ______________________ | ||||||
| Telephone: (___) ___-___ Facsimile: (___) ___-___ |
||||||
| 6. | “Initial Payment” Due from Participant to BNPPLC: | An amount equal to the Percentage specified above times the Initial Advance under the Construction Agreement. | ||||
Annex 3 — Page 38
Exhibit A
SUPPLEMENT TO PARTICIPATION AGREEMENT
[ , ]
BNP Paribas Leasing Corporation
00000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxx, Managing Director
00000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxx, Managing Director
Gentlemen:
Reference is made to the Participation Agreement (Livermore/Parcel 6) dated as of
__________________,
20___ (as heretofore amended, the “Participation Agreement”) between BNP Paribas
Leasing Corporation (“BNPPLC”), a Delaware
corporation, ____________ and other banks or
financial institutions which have or may from time to time become Participants under and as defined
in such Participation Agreement (collectively, the “Participants”). Unless otherwise defined
herein, all capitalized terms used in this Supplement have the respective meanings given to those
terms in the Participation Agreement.
[NOTE: THE NEXT TWO PARAGRAPHS, AND THE ADDENDUM TO SCHEDULE 1 ATTACHED TO THIS EXHIBIT,
WILL BE INCLUDED ONLY AS PART OF A SUPPLEMENT THAT ADDS A NEW PARTICIPANT UNDER THE PARTICIPATION
AGREEMENT:
The undersigned, by executing and delivering this Supplement to BNPPLC, hereby agrees to
become a party to the Participation Agreement referenced therein, in each case as a Participant and
agrees to be bound by all of the terms thereof applicable to Participants. The undersigned hereby
agrees that its Percentage under the Participation Agreement will be percent
( %), effective as of the date of this letter. Contemporaneously with the execution
of this letter, the undersigned is paying to BNPPLC the sum of $ in consideration of the rights it
is acquiring as a Participant under the Participation Agreement with the foregoing Percentage.
Schedule 1 attached to the Participation Agreement is amended by the addition of an Addendum
(concerning the undersigned) in the form attached to this Supplement.]
[NOTE: THE NEXT PARAGRAPH WILL BE INCLUDED ONLY IN A SUPPLEMENT THAT REDUCES AN EXISTING
PARTICIPANT’S PERCENTAGE UNDER THE
Annex 3 — Page 39
PARTICIPATION AGREEMENT:
In consideration of the payment of $ to the undersigned, the receipt and sufficiency of which
is hereby acknowledged by the undersigned, the undersigned hereby agrees that its Percentage under
the Participation Agreement is reduced to percent ( ), effective as of the date of
this letter.]
[NOTE: THE NEXT PARAGRAPH WILL BE INCLUDED ONLY IN A SUPPLEMENT THAT INCREASES AN EXISTING
PARTICIPANT’S PERCENTAGE UNDER THE PARTICIPATION AGREEMENT:
The undersigned hereby agrees that its Percentage under the Participation Agreement is
increased to percent ( %), effective as of the date of
this letter.
Contemporaneously with the execution of this letter, the undersigned is paying BNPPLC
the sum of $ in consideration of such increase.]
IN WITNESS WHEREOF, the undersigned has executed this Supplement as of the day and year
indicated above.
| [NAME] | ||||
| By: | ||||
| Printed Name: | ||||
| Title: | ||||
| Accepted and agreed: BNP PARIBAS LEASING CORPORATION |
||||
| By: | ||||
| Printed Name: | ||||
| Title: | ||||
Annex 3 — Page 40
Addendum to Schedule 1
Participant:
| 1. | Amount of Participation: $_________________ | |||||||||||||||||
| 2. | Percentage: ___% | |||||||||||||||||
| 3. | Address for Notices: | |||||||||||||||||
| Attention: | ||||||||||||||||||
| Telephone: | ||||||||||||||||||
| Facsimile: | ||||||||||||||||||
| 4. | Payment Instructions: | |||||||||||||||||
| Bank: | ||||||||||||||||||
| Account: | ||||||||||||||||||
| Account No.: | ||||||||||||||||||
| ABA No.: | ||||||||||||||||||
| Reference: | ||||||||||||||||||
| 5. | Operations Contact: | |||||||||||||||||
| Attention: | ||||||||||||||||||
| Telephone: | ||||||||||||||||||
| Facsimile: | ||||||||||||||||||
Annex 3 — Page 41
Annex 4
Participation Agreement Form
Attached to and made a part of this Annex is a form of Participation Agreement that may be executed
on or after the Base Rent Commencement Date and used by BNPPLC to share risks and rewards of the
Operative Documents with other parties.
PARTICIPATION AGREEMENT
(LIVERMORE/PARCEL 6)
(LIVERMORE/PARCEL 6)
This PARTICIPATION AGREEMENT (LIVERMORE/PARCEL 6) (this “Agreement”), dated as of _________,
200___, is made by and between BNP PARIBAS LEASING CORPORATION (“BNPPLC”), a Delaware corporation,
and the banks or other financial institutions designated as Participants in the signature pages to
this Agreement (whether one or more, “Participants”).
RECITALS
BNPPLC and Xxx Research Corporation (“LRC”), a Delaware corporation, have executed a Common
Definitions and Provisions Agreement (Livermore/Parcel 6) (the “Common Definitions and Provisions
Agreement”) dated as of December 18, 2007 (the “Original Effective Date”). As used in this
Agreement, capitalized terms defined in the Common Definitions and Provisions Agreement and not
otherwise defined in this Agreement are intended to have the respective meanings assigned to them
in the Common Definitions and Provisions Agreement.
At the request of LRC, BNPPLC has acquired the Land and any existing Improvements on the Land
prior to the execution of this Agreement.
Prior to the execution of this Agreement, BNPPLC and LRC have executed a Construction
Agreement (Livermore/Parcel 6) (the “Construction Agreement”), a Lease Agreement (Livermore/Parcel
6) (the “Lease”) and a Closing Certificate and Agreement (Livermore/Parcel 6) (the “Closing
Certificate”), all dated as of the Original Effective Date. Pursuant to the Construction
Agreement, BNPPLC has provided funding for the construction of new Improvements, all of which new
Improvements have now been constructed by LRC or under its supervision as provided in the
Construction Agreement. Pursuant to the Lease, LRC is leasing from BNPPLC the Land and all
Improvements on the Land.
Pursuant to an Agreement Regarding Purchase and Remarketing Options (Livermore/Parcel 6) dated
as of the Original Effective Date (the “Purchase Agreement”) between BNPPLC and LRC, LRC will have
the right to purchase, among other things, BNPPLC’s interest in the Land and the Improvements on
and subject to the terms and conditions set forth therein. Pursuant to a Pledge Agreement
(Livermore/Parcel 6) dated as of the Original Effective Date (the “Pledge Agreement”), LRC must
maintain cash collateral to secure its obligations under the Purchase Agreement.
Annex 4 — Page 2
By this Agreement, the parties desire to evidence the Participants’ agreement to
participate with BNPPLC in certain of the risks and rewards to BNPPLC of the Common Definitions and
Provisions Agreement, the Lease, the Closing Certificate, the Purchase Agreement and the Pledge
Agreement (collectively, the “Operative Documents”), which participation is to be accomplished
through the exchange of promises to make payments computed by reference to the sums paid or
received by BNPPLC from time to time pursuant to the Operative Documents, all as more particularly
provided below.
AGREEMENTS
Participants agree to participate with BNPPLC in, and BNPPLC agrees to share with the
Participants, the risks and rewards of the Operative Documents upon and subject to the following
terms, provisions, covenants, agreements and conditions:
1. Additional Definitions. As used in this Agreement, capitalized terms defined above have
the respective meanings assigned to them above; as indicated above, capitalized terms that are
defined in the Common Definitions and Provisions Agreement and that are used but not otherwise
defined have the respective meanings assigned to them in the Common Definitions and Provisions
Agreement; and, the following terms have the following respective meanings:
(A) “Bank Specific Charges” means payments made to BNPPLC by or on behalf of LRC for the
account of a Participant or any other Interested Party under subparagraph 5(B) or 5(C) of
the Lease. Bank Specific Charges include, for example, payments made to compensate a Participant
for an increase in costs related to advances made by the Participant hereunder and attributable to
a Banking Rules Change.
(B) “Critical Event” means any of the following which has occurred and is continuing and is
known to BNPPLC:
(1) any failure of LRC to pay Base Rent or any Supplemental Payment within three
Business Days of the date it becomes due;
(2) any failure of LRC to make any payment required by the Operative Documents (other
than Base Rent or any Supplemental Payment) within thirty days of the date it becomes due;
(3) any material failure of LRC to maintain the Property as required by the Lease;
(4) any material title encumbrance (other than a Permitted Encumbrance) is
Annex 4 — Page 3
discovered or asserted against the Property;
(5) any Event of Default;
(6) any condemnation proceedings are brought against the Property or any portion
thereof or any material damage to the Property is caused by fire or other casualty; or
(7) LRC shall fail to promptly repair any significant damage to the Property or apply
insurance or condemnation proceeds as required by the Operative Documents.
(C) “Critical Remedy” means BNPPLC’s right to do any of the following: (a) file a lawsuit
against LRC to enforce the Operative Documents or seek judicial foreclosure of the lien against the
Real Property granted in Exhibit B to the Lease; (b) make the election to accelerate the
Designated Sale Date as described in the definition thereof in the Common Definitions and
Provisions Agreement; (c) exercise the Put Option as provided in subparagraph 3(A) of the
Purchase Agreement if the conditions specified in that subparagraph have been satisfied; or (d)
withdraw Cash Collateral (as defined in the Pledge Agreement) for application against obligations
secured by the Pledge Agreement or otherwise take action to cause a sale or disposition of
Collateral to generate proceeds to be applied to such obligations.
(D) “Deposit Taker’s Agreement” has the meaning assigned to it in the Pledge Agreement.
(E) “Distributable Payments” means any payments actually received by BNPPLC under the
Operative Documents as (or in satisfaction of LRC’s obligations for) any of the following or
interest on past due amounts thereof:
(1) Base Rent;
(2) Qualified Prepayments;
(3) Bank Specific Charges;
(4) any Supplemental Payment; and
(5) Net Sales Proceeds.
(F) “Late Payment Rate” means (a) for each day (other than as set forth in clause (b) of this
sentence) the Fed Funds Rate or (b) for the purpose of computing interest on past due payments for
each day following the fifth day after such payments first became due, a rate of two
Annex 4 — Page 4
percent (2%) per annum in excess of the Prime Rate then in effect; except that the Late Payment Rate will not,
notwithstanding anything to the contrary herein contained, exceed the maximum rate of interest
permitted by applicable law.
(G) “Major Stakeholder” means BNPPLC and any Participant who, at the time any determination
thereof is required, has a Percentage which exceeds thirty-four percent (34%) of the Percentages of
BNPPLC and of all the Participants then entitled to vote under subparagraph 6(A).
(H) “Majority” means, at the time any determination thereof is required, any of the
Participants and BNPPLC, the aggregate Percentages of which equal or exceed sixty-seven percent
(67%) of the Percentages of BNPPLC and of all the Participants then entitled to vote under
subparagraph 6(A).
(I) “Net Cash Flow” means payments actually received by BNPPLC under the Operative Documents
as (or in satisfaction of LRC’s obligations for) Base Rent, Qualified Prepayments or a Supplemental
Payment or as interest on past due Base Rent, Qualified Prepayments or a Supplemental Payment;
except that any Unrecovered Protective Advances for which any Participant has not fully reimbursed
its Percentage to BNPPLC as provided in subparagraph 3(B) may, at BNPPLC’s option, be deducted by
BNPPLC from such payments for purposes of calculating Net Cash Flow. By deducting any Unrecovered
Protective Advance in the calculation of Net Cash Flow, BNPPLC will be considered to have
“recovered” such Protective Advance for purposes of calculating “Excess Reimbursements” under and
as defined in subparagraph 3(B). Further, if BNPPLC deducts Unrecovered Protective Advances in the
calculation of Net Cash Flow, but later receives payment from LRC (in excess of other amounts then
due from LRC) for the same Protective Advances, such payment to BNPPLC by LRC will also constitute
Net Cash Flow for purposes of this Agreement.
As an alternative to deducting Unrecovered Protective Advances in the calculation of Net Cash Flow
as described above in this definition, BNPPLC may elect to exercise its right under subparagraph
4(A) to setoff (a) payments owed to it as reimbursement for such Unrecovered Protective Advance
from any Participant that has not already fully reimbursed its Percentage of such Unrecovered
Protective Advance to BNPPLC, against (b) payments that BNPPLC would otherwise be required to make
to such Participant because of BNPPLC’s receipt of those Net Sales Proceeds or other Distributable
Payments.
(J) “Net Sales Proceeds” means, subject to the deductions and exclusions described below in this definition:
(1) all payments actually received by BNPPLC under the Purchase Agreement as (or
in satisfaction of LRC’s or an Applicable Purchaser’s obligations for)
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the purchase price for BNPPLC’s interest in Property or in Escrowed Proceeds; and
(2) if the Property is not sold pursuant to the Purchase Agreement on the Designated
Sale Date, then all rents and sales, condemnation and insurance proceeds actually received
by BNPPLC (other than sales proceeds paid or to be paid by BNPPLC to LRC pursuant to
subparagraph 3(D) of the Purchase Agreement) from any sale or lease after the
Designated Sale Date of any interest in, or because of any subsequent taking or damage to,
the Property.
For purposes of calculating Net Sales Proceeds, the following will be deducted or excluded from
such payments (without duplication of any item): (i) any excess sales proceeds that BNPPLC is
required by the Purchase Agreement to pay over to LRC; and (ii) any amounts applied by BNPPLC to
pay, or received by BNPPLC as reimbursement for, bona fide costs of a sale of the Property. Also,
any other Unrecovered Protective Advances for which any Participant has not fully reimbursed its
Percentage to BNPPLC as provided in subparagraph 3(B) may, at BNPPLC’s option, be deducted by
BNPPLC from such payments received by it for purposes of calculating Net Sales Proceeds Without
limiting the foregoing, after any Designated Sale Date upon which neither LRC nor an Applicable
Purchaser purchases BNPPLC’s interest in the Property, BNPPLC may, at its option, deduct the
following as Unrecovered Protective Advances: (x) ad valorem taxes, (y) insurance premiums; and (z)
other Losses of every kind suffered or incurred by BNPPLC (other than general overhead) with
respect to the ownership, operation or maintenance of the Property after the Designated Sale Date,
other than Unrecovered Protective Advances for which all Participants have paid BNPPLC their
respective Percentages thereof as required by subparagraph 3(B). By deducting any Unrecovered
Protective Advances in the calculation of Net Sales Proceeds, BNPPLC will be considered to have
“recovered” such Protective Advances for purposes of calculating Excess Reimbursements under and as
defined in subparagraph 3(B). Also, if BNPPLC deducts Unrecovered Protective Advances in the
calculation of Net Sales Proceeds, but later receives payment from LRC (in excess of other amounts
then due from LRC) for the same Protective Advances, such payment to BNPPLC by LRC will constitute
Net Sales Proceeds for purposes of this Agreement.
As an alternative to deducting Unrecovered Protective Advances in the calculation of Net Sales
Proceeds as described above in this definition, BNPPLC may elect to exercise its right under
subparagraph 4(A) to setoff (a) payments owed to it as reimbursement for such Unrecovered
Protective Advance from any Participant that has not already fully reimbursed its Percentage of
such Unrecovered Protective Advance to BNPPLC, against (b) payments that BNPPLC would
otherwise be required to make to such Participant because of BNPPLC’s receipt of those Net Sales
Proceeds or other Distributable Payments.
(K) “Participants” means each of the undersigned parties designated as Participants in
the signature pages to this Agreement, and any other financial institutions which may
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hereafter become parties to this Agreement by joining with BNPPLC in completing and executing a Participation
Agreement Supplement.
(L) “Participation Agreement Supplement” means a Participation Agreement Supplement in
substantially the form attached hereto as Exhibit A, completed and executed by BNPPLC and a
Participant, adding the Participant as a party to this Agreement, changing a Participant’s
Percentage or removing a Participant as a party to this Agreement.
(M) “Percentage” of each Participant means, subject to change by a Participation Agreement
Supplement, the percentage designated as the Participant’s “Percentage” in Schedule 1.
“Percentage” of BNPPLC means a percentage that, at the time a determination of such Percentage is
required hereunder, is equal to 100% less the sum of the Percentages of all the Participants.
(N) “Protective Advances” means any payments, other than of Excluded Taxes, made by or on
behalf of BNPPLC at any time or from time to time because of, arising out of or related to, in
whole or in part: (1) the Property or the construction, protection, preservation, operation,
ownership or sale thereof; (2) any of the Operative Documents or the transactions contemplated
therein; or (3) anything done by BNPPLC to enforce the obligations of LRC under the Operative
Documents (whether done upon BNPPLC’s own initiative or upon the direction of the Majority or
another Majority Stakeholder). Protective Advances will include any and all payments by BNPPLC
(including those paid to attorneys, accountants, experts and other advisors) for which LRC is
obligated to indemnify or reimburse BNPPLC by Paragraph 5 of the Lease. Protective
Advances will also include any “Charges” that BNPPLC must pay to any Deposit Taker under and as
defined in Paragraph 7 of any Deposit Taker’s Agreement executed by BNPPLC in the form
attached as an Exhibit to the Pledge Agreement.
(O) “Unrecovered Protective Advances” means Protective Advances that have not been repaid to
BNPPLC by or on behalf of LRC and have not otherwise been previously recovered by BNPPLC through
deductions from Net Cash Flow or Net Sales Proceeds as provided in the definitions of those terms
above.
2. Payments From BNPPLC to Each Participant.
(A) Payments Computed by Reference to Net Cash Flow and Net Sales Proceeds. Upon the actual receipt of any Net Cash Flow, Net Sales Proceeds or interest thereon, BNPPLC
will pay each Participant an amount equal to such Participant’s Percentage times such Net Cash
Flow, Net Sales Proceeds or interest, as the case may be.
(B) Payments Computed by Reference to Bank Specific Charges. If BNPPLC
actually receives any Bank Specific Charges (or interest thereon) for the account of a particular
Annex 4 — Page 7
Participant, then BNPPLC promises to promptly make a payment to such Participant equal to such Bank
Specific Charges (or interest thereon). If requested by any Participant, BNPPLC will make a demand
upon LRC for, and will endeavor in good faith to collect, payment of any Bank Specific Charges due
for the account of such Participant; provided, however, as an alternative to making any effort to
collect any Bank Specific Charge for any Participant, BNPPLC may instead assign to such Participant
the right to collect such Bank Specific Charge directly from LRC.
(C) Timing; Manner of Payment. Each payment required of BNPPLC by this Article 2 must
be made prior to 1:00 P.M., Dallas, Texas time, on the same day that BNPPLC actually receives the
corresponding Distributable Payment (in good funds), if BNPPLC’s receipt of the corresponding
Distributable Payment occurs prior to 11:00 A.M., Dallas, Texas time; if, however, BNPPLC’s receipt
of the Distributable Payment (in good funds) occurs on any day after 11:00 A.M., Dallas, Texas
time, the payments required from BNPPLC to the Participants will not be considered past due until
12:00 noon, Dallas, Texas time, on the next Business Day. All payments from BNPPLC to the
Participants will be by transfer of federal funds pursuant to the wiring instructions set forth in
Schedule 1. Each payment owing to a Participant by BNPPLC will bear interest from the date it is
due until it is paid by BNPPLC at the Late Payment Rate calculated on the basis of a 360-day year.
Any payment by BNPPLC to a Participant after the time of day specified herein for such payment will
be deemed not paid until the next following Business Day for purposes of this Agreement.
(D) Meaning of Actually Received. As used herein with respect to payments, “actually
received” and words of like effect will include not only payments made directly from LRC or any
Applicable Purchaser, but also amounts paid by others on LRC’s behalf, amounts realized by way of
setoff, amounts realized upon the disposition of or through the application of collateral under the
Pledge Agreement or any other documents that may be given from time to time to secure LRC’s
obligations under the Lease or Purchase Agreement (net of the costs of disposition and further net
of any amounts that must be returned to LRC or any third party having an interest in such
collateral), and the fair market value of any property or services accepted in lieu of a cash
payment (though it is understood that nothing herein contained will require BNPPLC to accept
property or services in lieu of a cash payment required by the Operative Documents and that BNPPLC
will not agree to accept property or services in lieu of any cash Distributable Payment without the
Participants’ prior written consent). Such phrase will not, however, include amounts received by
BNPPLC from any of the Participants or from any affiliate of BNPPLC unless the context otherwise indicates. Finally, if payments due to
BNPPLC from LRC are reduced only because of credits attributable to a reduction of BNPPLC’s taxes
not subject to indemnification by LRC, as described in subparagraph 4(C)(4) of the Lease,
then the payments that BNPPLC would have received but for the credits will be considered as having
been actually received by BNPPLC for purposes of this Agreement.
3. Payments From the Participants to BNPPLC.
Annex 4 — Page 8
(A) Initial Advance. Each of the original Participants joining in the execution of
this Agreement promises to pay to BNPPLC, contemporaneously with the execution of this Agreement,
an initial payment as set forth below such Participant’s name on Schedule 1, equal to the
Participant’s Percentage times the outstanding Lease Balance and (if the effective date of this
Agreement is not a Base Rent Date) any accrued Base Rent yet to be paid under the Lease. BNPPLC
will have no obligation hereunder to any of the original Participants that fails to pay such
initial payment. Such initial payment will be due no later than 11:00 A.M., Dallas, Texas time, on
the effective date of this Agreement.
(B) Protective Advances.
(1) General. If LRC fails to pay or reimburse any Protective Advance to
BNPPLC within ten days after BNPPLC makes a demand or request therefor, BNPPLC may notify
the Participants of such failure. Promptly after receipt of any such notice, each
Participant must pay to BNPPLC an amount equal to such Participant’s Percentage times the
Protective Advance described in the notice, EVEN IF THE PROTECTIVE ADVANCE WOULD NOT HAVE
BEEN PAID BUT FOR ANY ACTUAL OR ALLEGED NEGLIGENCE OF BNPPLC OR ITS AFFILIATES OR
REPRESENTATIVES AND EVEN IF THE PROTECTIVE ADVANCE WOULD NOT HAVE BEEN PAID BUT FOR ANY
ENVIRONMENTAL LOSSES OR OTHER MATTERS OR CIRCUMSTANCES FOR WHICH BNPPLC MAY BE STRICTLY
LIABLE. After any Participant has paid its respective Percentage times the Protective
Advance to BNPPLC, BNPPLC must pay to such Participant an amount equal to its Adjusted
Percentage (as defined below) times any subsequent Excess Reimbursement (as defined below)
or interest thereon actually received by BNPPLC for such Protective Advance. As used in
this Agreement, the “Adjusted Percentage” of any Participant will equal (i) such
Participant’s Percentage, divided by (ii) the sum of BNPPLC’s Percentage and the Percentages
of all Participants who have paid BNPPLC their respective shares of the Protective Advance
at issue. As used in this Agreement, the term “Excess Reimbursement” will mean, for the
Protective Advance at issue, (A) amounts reimbursed or paid by LRC to (or otherwise
recovered by) BNPPLC on account of such Protective Advance (except to the extent included in
Net Cash Flow or Net Sales Proceeds as provided in the definitions of those terms in Paragraph 1), less (B) (i)
the total amount of such Protective Advance, times (ii) the Percentages of any Participants
that have not paid BNPPLC their respective Percentages of such Protective Advance.
(2) Exceptions. Notwithstanding the foregoing, no Participant will be
required to make any payment pursuant to this subparagraph 3(B) related to a Protective
Advance that is paid only because of a transfer or assignment by BNPPLC of its right to
receive Distributable Payments or its rights and interests in and to the Property, the
Annex 4 — Page 9
Operative Documents or this Agreement to BNPPLC’s Affiliates. Further, nothing in this
subparagraph 3(B) will be construed to require a payment by a Participant for that portion
or percentage, if any, of a Protective Advance required only because of (and attributed by
any applicable principles of comparative fault to): (a) conduct of BNPPLC or a
Representative of BNPPLC that has been determined to constitute gross negligence or wilful
misconduct in or as a necessary element of a final judgment rendered against BNPPLC or such
Representative by a court with jurisdiction to make such determination; (b) any
representation made by BNPPLC in the Operative Documents that is false in any material
respect and that BNPPLC knew was false at the time of BNPPLC’s execution of the Operative
Documents; (c) Liens Removable by BNPPLC; or (d) any claim made by any Participant against
BNPPLC because of any breach of this Agreement by BNPPLC. As used in this Agreement, “gross
negligence” of BNPPLC will not include any negligent failure of BNPPLC to act when the duty
to act would not have been imposed solely but for BNPPLC’s status as owner of the Property.
(C) Method of Payment. All payments made by the Participants to BNPPLC will be made
by transfer of federal funds to BNPPLC pursuant to the wiring instructions for BNPPLC set forth on
Schedule 1. Each payment owing to BNPPLC by any Participant must be paid to BNPPLC on the date
specified herein or, if not specified, on demand and will bear interest from the date due until the
date paid by the Participant at the Late Payment Rate calculated on the basis of a 360-day year.
Any payment by a Participant to BNPPLC after the time of day specified herein for such payment will
be deemed not paid until the next following Business Day for purposes of this Agreement.
4. Other Adjustments, Deductions and Investments.
(A) Setoff. In the event that one party to this Agreement has failed to pay to a
second party hereto any amount when due hereunder, the second party may deduct such amount and
interest thereon at the Late Payment Rate from any payments due from it under this Agreement to the
first party.
(B) Sharing of Payments. Each Participant agrees that if for any reason it
obtains a payment made by or for LRC that reduces any Distributable Payment, and if such payment will
cause such Participant to receive more than it would have received had such payment been made
instead to BNPPLC and generated the payments from BNPPLC to Participants contemplated in this
Agreement, then (1) such Participant must promptly purchase interests in the rights of other
parties to this Agreement as necessary to cause BNPPLC and all Participants to share payments as
they otherwise would have done under this Agreement, and (2) such other adjustments will be made
from time to time as is equitable to ensure that BNPPLC and all Participants share all payments of
(or that operate to reduce) Distributable Payments as they otherwise would have done under this
Agreement. If, however, the payment received by the purchasing Participant or
Annex 4 — Page 10
any part thereof is later recovered from the purchasing Participant, the purchase provided for in this subparagraph
will be rescinded, and the price paid by the purchasing Participant to other parties will be repaid
by them to the purchasing Participant to the extent of such recovery. Also, if the purchasing
Participant is required by court order to pay interest on the payment so recovered, then amounts
repaid to the purchasing Participant by the other parties will be repaid with interest, computed in
the same manner as the interest required by the court order. Nothing in this subparagraph will in
any way affect the right of BNPPLC or any Participant to obtain payment (whether by exercise of
rights of banker’s lien, set-off or counterclaim or otherwise) of indebtedness or obligations other
than those established by this Agreement or by any of the Operative Documents.
(C) Withholding Taxes. BNPPLC may deduct any United States withholding tax required
on payments to a Participant hereunder if the Participant fails to provide properly completed tax
forms which establish its right to be exempt from withholding as described in the next sentence;
and in any event the Participant must reimburse BNPPLC for any such taxes BNPPLC is required to pay
and that BNPPLC has not deducted. If BNPPLC is uncertain whether United States withholding tax is
required, BNPPLC may, after notice to the applicable Participant, deduct the withholding tax except
during any period when BNPPLC is excused from such withholding because of the Participant’s
delivery to BNPPLC of (i) a statement in duplicate conforming to the requirements of United States
Treasury Regulation Section 1.1441-5(b) or (ii) two duly completed copies of Internal Revenue
Service Form W-8BEN or any successor form thereto (“Form W-8BEN”) relating to the Participant and
claiming complete exemption from withholding tax on all amounts to be received by the Participant
pursuant to this Agreement or (iii) a valid United States Internal Revenue Service Form W-8ECI or
any successor form thereto (“Form W-8ECI”) relating to the Participant and claiming complete
exemption from withholding tax on all amounts to be received by the Participant pursuant to this
Agreement. Any Participant will, if requested by BNPPLC, deliver to BNPPLC subsequent statements
with respect to such Treasury Regulation or two additional copies of Form W-8BEN or Form W-8ECI, or
the applicable replacement forms, on or before the date that any prior such delivered statements or
forms expire or become obsolete. If any such statement or form delivered by a Participant to
BNPPLC becomes invalid or inapplicable as to such Participant, such Participant
must promptly inform BNPPLC. The obligations of each Participant pursuant to this
subparagraph 4(C) will survive the termination of this Agreement.
(D) Order of Application. For purposes of this Agreement, as between BNPPLC
and Participants, BNPPLC will be entitled (but not required) to apply payments received from LRC
under the Operative Documents or from any sale of the Property or any interest therein or portion
thereof to pay or reimburse then outstanding Unrecovered Protective Advances (and interest
thereon), if any, regardless of how LRC may otherwise have designated such payments or may
otherwise be entitled to characterize such payments. In addition, BNPPLC may allocate any such
payments to reduce various outstanding Unrecovered Protective Advances in such
Annex 4 — Page 11
order as BNPPLC deems appropriate.
(E) Investments Pending Dispute Resolution; Overnight Investments. Whenever BNPPLC in
good faith determines that it does not have all information needed to determine how payments to the
Participants must be made on account of any Distributable Payments, or whenever BNPPLC in good
faith determines that there is any dispute among the Participants about payments which must be made
on account of Distributable Payments, BNPPLC may choose to defer the payments to Participants which
are the subject of such missing information or dispute. However, to minimize any such deferral,
BNPPLC must attempt diligently to obtain any missing information needed to determine how payments
to the Participants must be made. Also, pending any such deferral, or if BNPPLC is otherwise
required to invest funds pending distribution to the Participants, BNPPLC must endeavor to invest
the payments at issue. In addition, if BNPPLC receives any Distributable Payment after 11:00 A.M.,
Dallas, Texas time, on any day and will not make payments to Participants in connection therewith
until the next Business Day pursuant to subparagraph 2(C), then BNPPLC must endeavor to invest such
payments overnight; however, BNPPLC will have no liability to the Participants if BNPPLC is unable
to make such investments. Investments by BNPPLC will be in the overnight federal funds market
pending distribution, and the interest earned on each dollar of principal so invested will be paid
to the Person entitled to receive such dollar of principal when the principal is paid to such
Person.
(F) Losses Resulting from Failure of Deposit Taker to Comply with the Pledge Agreement or
Related Agreements.
(1) BNPPLC’s Deposit Taker. If the Person acting as Deposit Taker for BNPPLC
under and as provided in the Pledge Agreement fails to comply with the requirements of the
Pledge Agreement or any Deposit Taker’s Agreement signed by it, BNPPLC shall defend,
indemnify, and hold harmless the Participants from and against any Losses resulting from
such failure. Without limiting the foregoing, if the failure of a Deposit Taker for BNPPLC
to comply strictly with the terms of its Deposit Taker’s Agreement (including the requirement that any cash deposits be held in a deposit
account located in either New York, California or Illinois) causes, in whole or in part, the
security interest of BNPPLC in the Collateral held by such Deposit Taker to be unperfected,
then any and all Losses suffered as a result of such nonperfection shall be borne solely
BNPPLC and shall not be shared by the Participants.
(2) Participants’ Deposit Takers. If the Person acting as Deposit Taker
for any Participant under and as provided in the Pledge Agreement fails to comply with the
requirements of the Pledge Agreement or any Deposit Taker’s Agreement signed by it, such
Participant (the “Responsible Participant”) shall defend, indemnify, and hold harmless
BNPPLC and the other Participants from and against any Losses resulting from
Annex 4 — Page 12
such failure. Without limiting the foregoing, if the failure of a Deposit Taker for a Responsible
Participant to comply strictly with the terms of its Deposit Taker’s Agreement (including
the requirement that any cash deposits be held in a deposit account located in either New
York, California or Illinois) causes, in whole or in part, the security interest of BNPPLC
in the Collateral held by such Deposit Taker to be unperfected, then any and all Losses
suffered as a result of such nonperfection shall be borne solely by the Responsible
Participant and shall not be shared by BNPPLC or the other Participants.
5. Nature of this Agreement.
(A) No Conveyance. This Agreement is intended to create contractual rights in
favor of each Participant to receive payments from BNPPLC, but it is not intended to convey or
assign to the Participants any interest in the Property or in the Operative Documents or in the
payments to be made to BNPPLC thereunder. In no event will any Participant exercise or attempt to
exercise any right or remedy of BNPPLC under the Operative Documents. Nothing in this Agreement
will be construed to grant to the Participants any right to enforce LRC’s obligations under the
Operative Documents, nor is in anything in this Agreement to be construed to allow any Participant
to collect directly from LRC any payments due under the Operative Documents. Although BNPPLC’s
obligations for payments to the Participants hereunder will be computed by reference to funds
actually received as Distributable Payments, this Agreement will not be construed as an assignment
of Distributable Payments themselves or any interest therein, it being understood that (without
limiting or expanding the dollar amount of such obligations) BNPPLC may satisfy such obligations
from other funds available to it, thereby reserving Distributable Payments for payment to other
creditors or for other purposes, as BNPPLC determines in its sole discretion.
(B) Not a Partnership, Etc. Neither the execution of this Agreement, nor the
sharing of risks and rewards under the Operative Documents, nor any agreement to share in profits
or losses arising as a result of the transactions contemplated thereby, is intended to be or to
create, and the foregoing will be construed not to be or to create, any partnership, joint venture,
or other joint enterprise between BNPPLC and any Participant. Neither the execution of this
Agreement nor the management and administration of the Operative Documents or other related
documents by BNPPLC, nor any other right, duty or obligation of BNPPLC under or pursuant to this
Agreement is intended to be or to create any fiduciary relationship between BNPPLC and any
Participant.
Annex 4 — Page 13
6. Amendments; Waivers; Exercise of Rights and Remedies Against LRC.
(A) Limitations Upon the Rights of BNPPLC. Subject to subparagraph 6(C), but
notwithstanding anything else to the contrary in this Agreement:
(1) Unless BNPPLC and all Participants agree in writing, BNPPLC shall not execute any
waiver, modification or amendment of the Operative Documents that would:
(a) reduce or postpone (or reasonably be expected to reduce or postpone) any
payments that any Participant would, but for such modification or amendment, be
expected to receive from BNPPLC hereunder or reduce or postpone (or reasonably be
expected to reduce or postpone) any Distributable Payment that BNPPLC would, but for
such modification or amendment, be expected to receive (including, in each case, any
extension of the Designated Sale Date, or any modification of the definition
thereof);
(b) except as otherwise expressly contemplated in the Operative Documents,
release BNPPLC’s interest in all or any material part of the Property or in any
collateral pledged pursuant to the Pledge Agreement;
(c) modify the definitions of “Event of Default” under and as used in the
Operative Documents (provided, however, that a waiver of any particular Event of
Default permitted or required under the other provisions of this subparagraph 6(A)
will not be considered a modification of the definition of Event of Default in
violation of this provision);
(d) reduce the scope and coverage of the indemnities provided for the benefit
of Participants in the Operative Documents; or
(e) extend the Term of the Lease.
Subject to the preceding sentence, unless a Majority agrees in writing, BNPPLC shall not
execute or grant any waiver, modification or amendment that would excuse a Default that
constitutes or has caused a Critical Event.
However, this subparagraph 6(A)(1) will not limit BNPPLC’s right to forebear from exercising
rights against LRC to the extent BNPPLC determines in good faith that such forbearance is
appropriate and is permitted by the following subsections in this subparagraph 6(A).
(2) Further, if LRC exercises LRC’s Initial Remarketing Rights as provided in
Annex 4 — Page 14
the Purchase Agreement, but the price tendered to BNPPLC by an Applicable Purchaser on the
Designated Sale Date is less than the difference computed by subtracting the Supplemental
Payment paid to BNPPLC on the Designated Sale Date (if any) from the Break Even Price (as
defined in the Purchase Agreement), then BNPPLC will not complete the sale of the Property
to the Applicable Purchaser without the approval of a Majority. In other words, in that
event, BNPPLC will make a Decision Not to Sell at a Loss unless a Majority has approved a
sale of the Property to the Applicable Purchaser at a net price below the amount needed to
recover the Lease Balance.
(3) BNPPLC will, with reasonable promptness, provide the Participants with copies of
all default notices it sends or receives under the Operative Documents and notify the
Participants of any Event of Default or Critical Event of which BNPPLC is actually aware and
of any other matters known to BNPPLC which, in BNPPLC’s reasonable judgment, are likely to
materially affect the payments any Participant will be required to make or be entitled to
receive under this Agreement, but BNPPLC will not in any event be liable to any Participant
for BNPPLC’s failure to do so unless such failure constitutes gross negligence or wilful
misconduct on the part of BNPPLC.
(4) Upon the direction of the Majority, BNPPLC will execute any waiver, modification or
amendment of the Operative Documents requested by NAI or presented by BNPPLC to Participants
for their consideration; subject to the conditions, however, that: (i) BNPPLC’s execution of
the waiver, modification or amendment is not prohibited or excused by subparagraph 6(A)(1);
and (ii) the waiver, modification or amendment does not (x) increase the amount BNPPLC may
be required to pay to LRC or anyone else, or (y) reduce or postpone (and cannot reasonably
be expected to reduce or postpone) any payments that BNPPLC would, but for such modification
or amendment, be expected to receive, or (z) release BNPPLC’s interest in all or any
material part of the Property or in any collateral pledged pursuant to the Pledge Agreement.
(5) Before exercising any Critical Remedy, or if requested in writing by any
Participant at any time when an Event of Default or Critical Event has occurred and is
continuing, BNPPLC will call a meeting with the Participants to discuss what action by
BNPPLC, if any, is appropriate under the Operative Documents and what direction, if any, a
Majority may give to BNPPLC. The meeting will be scheduled during regular business hours
in the offices of BNPPLC’s Parent in Dallas, Texas, or another appropriate location in the
continental United States designated by a Majority, not earlier than five and not later than
twenty Business Days after BNPPLC’s receipt of the written request from any Participant.
(6) BNPPLC will be entitled to, and BNPPLC must comply with any direction of a
Majority or any Majority Stakeholder to, do any of the following when a
Annex 4 — Page 15
Critical Event or an Event of Default has occurred and is continuing: (a) send any default notice to LRC required
to establish an Event of Default; (b) exercise any one or more Critical Remedies, as then
permitted under the circumstances by the Operative Documents; or (c) exercise BNPPLC’s
rights (to the extent then permitted by the Operative Documents) to apply any Escrowed
Proceeds then held by BNPPLC as a Qualified Prepayment. BNPPLC will not, however, be liable
if it is unable, despite a good faith effort and reasonable diligence on its part, to carry
out such directions of a Majority or a Major Stakeholder for reasons beyond BNPPLC’s
control, including any refusal of any court to uphold or enforce rights or remedies that
BNPPLC is directed to exercise. In no event will any Participant instigate any suit or
other action directly against LRC with respect to the Operative Documents or the Property,
even if the Participant would, but for this Agreement, be entitled to do so as a party or
third party beneficiary under the Operative Documents or otherwise; provided, however, this
provision will not preclude any action by any Participant to enforce any right assigned to
it by BNPPLC as described in subparagraph 2(B) to collect any Bank Specific Charge from LRC.
(7) In the event LRC (a) fails to make any Supplemental Payment when required to
do so pursuant to the Purchase Agreement, or (b) fails to purchase BNPPLC’s interest in the
Property on any date a purchase is required by subparagraph 3(A) of the Purchase
Agreement, then BNPPLC will be entitled to, and BNPPLC must (unless all the Participants
otherwise agree in writing), bring suit against LRC to enforce the Operative Documents in
such form as is recommended by reputable counsel no later than sixty days after the
expiration of any applicable cure or grace period given LRC by the express terms of the
Purchase Agreement or other Operative Documents, and thereafter BNPPLC must prosecute the
suit with reasonable diligence in accordance with the advice of reputable counsel. If
BNPPLC acquires the interests of LRC in any of the Property as a result of such suit or
otherwise, BNPPLC will thereafter proceed with reasonable diligence to sell the Property in a commercially reasonable manner to one or more bona fide third party
purchasers and will in any event have consummated the sale of the entire Property (through a
single sale of the entire property or a series of sales of parts) within five years
following the date BNPPLC recovers possession of the Property at the best price or prices
BNPPLC believes are reasonably attainable within such time. Further, after the Designated
Sale Date and prior to BNPPLC’s sale of the entire Property, BNPPLC will retain a property
management company experienced in the area where the Property is located to manage the
operation of the Property and pursue the leasing of any completed improvements which are
part of the Property. BNPPLC will not retain an Affiliate of BNPPLC to act as the property
manager except under a bona fide, arms-length management contract containing commercially
reasonable terms. Further, after the Designated Sale Date and until BNPPLC sells the
Property, BNPPLC will endeavor in good faith to do the following, consistent with any
directions reasonably
Annex 4 — Page 16
given by the Majority: (i) maintain, or obtain the agreement of one or more tenants to maintain, the Property in good order and repair, (ii) procure and
maintain casualty insurance against risks customarily insured against by owners of
comparable properties, in amounts sufficient to eliminate the effects of coinsurance, (iii)
keep and allow the Participants to review accurate books and records covering the operation
of the Property, and (iv) pay prior to delinquency all taxes and assessments lawfully levied
against the Property.
Notwithstanding the foregoing, any Participants that have failed to fund any amount due hereunder,
including any Percentage of a Protective Advance, and that have not corrected such failure within
five Business Days after being notified thereof, will have no voting or consent rights under this
subparagraph 6(A) and no rights to require BNPPLC to call a meeting or to take any action pursuant
to this subparagraph 6(A) until such failure is corrected.
(B) Rights of BNPPLC Generally. Subject to the limitations set forth in subparagraph
6(A):
(1) BNPPLC will have the exclusive right to take any action and to exercise any
available powers, rights and remedies to enforce the obligations of LRC under the Operative
Documents or to refrain from taking any such action or exercising any such power, right or
remedy.
(2) BNPPLC may (i) give any consent, waiver or approval requested by LRC with respect
to any approval contemplated in the Lease or other Operative Documents or (ii) waive or
consent to any adverse title claims affecting the Property, subject the condition that, in
either case, BNPPLC believes in good faith that such action will not have a material adverse
effect upon the obligations or ability of LRC to make the payments required under the
Operative Documents or upon the rights and remedies, taken as whole, of BNPPLC under the Operative Documents or upon the Participants hereunder.
(C) Conflicts and Purchase Agreement Defaults. Notwithstanding anything to the
contrary herein contained, BNPPLC may, even over the objection of any Participant or the Majority,
(A) take any action recommended in writing by reputable counsel and believed in good faith by
BNPPLC to be required of BNPPLC by the Operative Documents or any law, rule or regulation to which
BNPPLC is subject, (B) refrain from taking any action if BNPPLC believes in good faith that the
action is prohibited by the Operative Documents or any law, rule or regulation to which BNPPLC is
subject, and if reputable counsel recommends in writing that BNPPLC refrain from taking the action,
and (C) after notice to the Participants, bring and prosecute a suit against LRC in the form
recommended by and in accordance with advice of reputable counsel at any time when a breach of the
Operative Documents by LRC has put
Annex 4 — Page 17
BNPPLC (or any of its officers or employees) at risk of criminal
prosecution or significant liability to third parties or at any time after LRC or an Applicable
Purchaser fails to purchase the Property on the Designated Sale Date pursuant to the Purchase
Agreement. (If, however, BNPPLC takes any action or refrains from taking any action over the
objection of a Majority pursuant to the preceding sentence, BNPPLC must provide the Majority a
written explanation of the basis for BNPPLC’s conclusion that taking the action, or refraining from
taking the action, is permitted by the preceding sentence.) Further, nothing herein contained will
be construed to require BNPPLC to agree to modify the Operative Documents or to take any action or
refrain from taking any action in any manner that could increase BNPPLC’s liability to LRC or
others, that could reduce or postpone payments to which BNPPLC is entitled thereunder, or that
could reduce the scope and coverage of the indemnities provided for BNPPLC’s benefit in the
Operative Documents.
(D) Refusal to Give Consents; Failure to Fund. If any Participant declines to consent
to any amendment, modification, waiver, release or consent for which the Participant’s consent is
requested or required by reason of this Agreement, or if any Participant fails to pay any amount
owed by it hereunder, BNPPLC will have the right, but not the obligation and without limiting any
other remedy of BNPPLC, to reduce such Participant’s Percentage to zero and to terminate such
Participant’s rights to receive any further payments under Article 2 of this Agreement by paying to
such Participant a termination fee equal to the sum of (but without duplication of any amount): (1)
the total amount such Participant would be entitled to receive from BNPPLC hereunder if the date of
such payment were the Designated Sale Date and on such date LRC had itself purchased BNPPLC’s
interest in the Property pursuant to and in accordance with the Purchase Agreement, and (2) the
amounts, if any, needed to repay to such Participant any payments previously made by it in
connection with Protective Advances pursuant to subparagraph 3(B) and not otherwise previously
repaid to such Participant hereunder.
7. Required Repayments. Each Participant must repay to BNPPLC, upon written request or
demand by BNPPLC (i) any sums paid by BNPPLC to such Participant under this Agreement from, or that
were computed by reference to, any Distributable Payment or other amounts which BNPPLC is required
to return or pay over to another party, whether pursuant to any bankruptcy or insolvency law or
proceeding or otherwise and (ii) any interest or other amount that BNPPLC is also required to pay
to another party with respect to such sums. Such repayment by a Participant will not constitute a
release of such Participant’s right to receive payments from BNPPLC hereunder upon BNPPLC’s receipt
of any such Distributable Payment or other amount (or any interest thereon) that BNPPLC may later
recover.
8. LRC Information; Independent Analysis. Prior to the execution of this
Agreement, BNPPLC has provided to the Participants copies of the executed Operative Documents and
of various certificates, legal opinions and other documents delivered to BNPPLC by or on behalf of
LRC with respect to the Operative Documents. In the future, BNPPLC will
Annex 4 — Page 18
provide (A) to all Participants copies of all amendments of the Operative Documents and financial statements,
compliance certificates and other certificates and legal opinions, if any, delivered by or on
behalf of LRC in connection therewith, and (B) to any Participant, as reasonably required to comply
with a specific, reasonable written request for information made by the Participant, copies of
other information readily available to BNPPLC concerning LRC and the transactions contemplated in
the Operative Documents. However, BNPPLC will not be liable for its failure to provide the
Participants any of the foregoing documents unless such failure constitutes gross negligence or
wilful misconduct on BNPPLC’s part, and any Attorney’s Fees or other costs of collecting,
assembling and providing copies of information requested by a Participant pursuant to clause (B) of
the preceding sentence must be reimbursed to BNPPLC by the Participant. Each Participant has
entered into this Agreement without reliance upon representations made outside this Agreement by
BNPPLC or by any Affiliate, agent or attorney of BNPPLC and only after independently reviewing such
documents, independently making such inspections, independently consulting with counsel and
independently collecting and verifying such information, as the Participant determined to be
necessary or appropriate. Without limiting the foregoing, each Participant has independently
reviewed the Operative Documents and independently made such inquiries and investigations of LRC
and the Property as the Participant determined to be necessary or appropriate before executing this
Agreement.
9. Performance through Representatives. BNPPLC may perform any of its duties hereunder by
or through officers, directors, employees, attorneys or agents (collectively, “Representatives”),
and BNPPLC and its Representatives may rely, and will be fully protected in relying, upon any
communication or document believed by it or them to be genuine and correct and to have been signed
or made by the proper Person and, with respect to legal matters, upon the opinion of counsel
selected by BNPPLC. The Participants acknowledge that BNPPLC’s Parent may act as agent for BNPPLC
with respect to the administration of this Agreement, and to the extent it does so, it will be a Representative of BNPPLC hereunder.
10. Duty of Care. Neither BNPPLC nor any of its Representatives will be liable
or responsible to any Participant or any other Person for any action taken or omitted to be taken
by BNPPLC or any of its Representatives under this Agreement or in relation to the Operative
Documents or the Property (even if negligent or related to a matter for which BNPPLC or any of
its Representatives may otherwise be strictly liable); except that this provision will not
excuse BNPPLC from liability for failing to make timely payments required of BNPPLC to the
Participants by the express provisions of Article 2 or subparagraph 3(B) or from liability for
actions taken or omitted to be taken by BNPPLC which constitute gross negligence or wilful
misconduct. Without limiting the generality of the foregoing, BNPPLC (1) may consult with legal
counsel (including counsel for LRC), independent public accountants and other experts selected by
it and will not be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (2) makes no warranty or
representation
Annex 4 — Page 19
to the Participants except as provided in Article 12 and will not be responsible to
the Participants for any statements, warranties or representations made in or in connection with
the Operative Documents; (3) will not have any duty to the Participants to ascertain or to inquire
as to the performance or observance of any of the terms, covenants or conditions of the Operative
Documents or to inspect the Property or the books and records of LRC; (4) will not be responsible
to the Participants for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Operative Documents or any instrument or document furnished in
connection therewith; (5) may rely upon the representations and warranties of LRC and the
Participants in exercising its powers hereunder unless BNPPLC has actual knowledge that such
representations and warranties are untrue; and (6) will incur no liability under or in respect of
this Agreement or the Operative Documents by acting in reliance upon any notice, consent,
certificate or other instrument or writing (including any telecopy, telegram, cable or telex)
believed by it to be genuine and signed or sent by the proper Person or Persons.
11. Representations by Each Participant. Each Participant represents that as of the date
it became a party to this Agreement:
(A) Nature of this Agreement. It is the type of financial institution set forth under
its name in Schedule 1, or in the Participation Agreement Schedule which made it a party to this
Agreement, and it is entering into this Agreement for its own account in respect of a commercial
transaction made in ordinary course of its business and not with a view to or in connection with
any subparticipation, sale or distribution to any Person (other than its Affiliates). Such
Participant does not consider the acceptance of the risk participation hereunder to constitute the
“purchase” or “sale” of a “security” within the meaning of any federal or state securities statute
or law, or any rule or regulations under any of the foregoing.
(B) No Default or Violation. To such Participant’s knowledge, the execution, delivery
and performance of this Agreement do not and will not contravene, result in a breach of or
constitute a default under any material contract or agreement to which the Participant is a party
or by which the Participant is bound and do not violate or contravene any law, order, decree, rule
or regulation to which the Participant is subject.
(C) No Suits. To such Participant’s knowledge, there are no judicial or
administrative actions, suits or proceedings involving the validity, enforceability or priority of
this Agreement and no such suits or proceedings are threatened.
(D) Organization. Such Participant is duly incorporated and legally existing under
the laws of jurisdiction indicated in Schedule 1 or in the Participation Agreement Schedule which
made it a party to this Agreement. Such Participant has all requisite power and all material
governmental certificates of authority, licenses, permits, qualifications and other documentation
necessary to perform its obligations under this Agreement.
Annex 4 — Page 20
(E) Enforceability. This Agreement constitutes a legal, valid and binding
obligation of such Participant, enforceable in accordance with its terms, subject to bankruptcy and
other laws affecting creditors’ rights generally and general equitable principles. The execution
and delivery of, and performance under, this Agreement are within such Participant’s powers and
have been duly authorized by all requisite action and are not in contravention of the powers of the
charter or other corporate papers of the Participant.
(F) No Funding With Plan Assets. Such Participant has not and will not provide
advances required by this Agreement from the assets of any employee benefit plan (or its related
trust).
12. Representations by BNPPLC. BNPPLC represents to each Participant, as of the date such
Participant became a party to this Agreement, that:
(A) No Default or Violation. To BNPPLC’s knowledge, its execution, delivery and
performance of this Agreement and the Operative Documents do not contravene, result in a breach of
or constitute a default under any material contract or agreement to which BNPPLC is a party or by
which BNPPLC is bound and do not violate or contravene any law, order, decree, rule or regulation
to which BNPPLC is subject.
(B) No Suits. To BNPPLC’s knowledge, there are no judicial or administrative actions,
suits or proceedings involving the validity, enforceability or priority of this Agreement and no
such suits or proceedings are threatened.
(C) Organization. BNPPLC is duly incorporated and legally existing under the laws of
Delaware. BNPPLC has all requisite power and all material governmental certificates of authority,
licenses, permits, qualifications and other documentation necessary to perform its obligations
under this Agreement.
(D) Enforceability. This Agreement and the Operative Documents constitute legal,
valid and binding obligations of BNPPLC, enforceable in accordance with their respective terms,
subject to bankruptcy and other laws affecting creditors’ rights generally and general equitable
principles. BNPPLC’s execution and delivery of, and performance under, this Agreement and the
Operative Documents are within BNPPLC’s powers and have been duly authorized by all requisite
action and are not in contravention of the powers of the charter, by-laws or other corporate papers
of BNPPLC; except that BNPPLC makes no representation or warranty that conditions imposed by any
state or local Applicable Laws to the purchase, ownership, lease, financing or operation of the
Property have been satisfied.
(E) Liens Removable by BNPPLC. BNPPLC will not create or permit any Liens
Annex 4 — Page 21
Removable by BNPPLC not claimed by, through or under any of the Participants (other than BNPPLC’s
Affiliates) without LRC’s consent.
13. Assignments.
(A) By the Participants Generally. Except as expressly provided below, no
Participant may assign or attempt to assign any interest in or rights under this Agreement without
the prior written consent of BNPPLC and LRC, which consent will not be unreasonably withheld so
long as the Participant requesting the approval is not in default hereunder; however, this
provision will not prevent a Participant from transferring its rights hereunder to its Affiliates
or to any other Participants who are already parties to this Agreement. Notwithstanding any
permitted assignment by a Participant, if the assignment is to any Person that does not qualify as
a “Participant” for purposes of the Operative Documents (which, as more particularly provided in
the definition of Participant in the Common Definitions and Provisions Agreement, may require the
written approval of such Person by LRC), then such Participant’s obligations under this Agreement
will remain unchanged, such Participant will remain primarily responsible for the performance of
its obligations hereunder, and BNPPLC may continue to deal solely and directly with such
Participant in connection with all rights and obligations under this Agreement. In the event,
however, of a permitted assignment by a Participant to a Person that does qualify as a
“Participant” for purposes of the Operative Documents, accomplished by the execution of appropriate
Participation Agreement Supplements as herein provided, the assigning Participant will not be
liable for any failure by the assignee to fulfill the obligations assumed hereunder by the assignee
by reason of such assignment.
(B) By BNPPLC. Except as expressly provided herein, BNPPLC may not assign or
attempt to assign any rights under or interest in the Operative Documents or this Agreement or any
interest in the Property without all of the Participants’ prior written consents, which consents
will not be unreasonably withheld. By a Participation Agreement Supplement, BNPPLC may, without
the prior written consent of any Participant, assign participations in the Operative Documents or
the payments required to BNPPLC thereunder to any then existing Participant and to other financial
institutions or Affiliates of financial institutions so long as BNPPLC has received any approval of
LRC required by the Lease. In addition, BNPPLC may assign its right to receive Distributable
Payments and its rights and interests in and to the Property, the Operative Documents and this
Agreement to Affiliates of BNPPLC or other Persons that do not become Participants, but in such
event BNPPLC’s obligations under this Agreement will remain unchanged, BNPPLC will remain primarily
responsible for the performance of its obligations hereunder, and all Distributable Payments
received by any such Affiliates or other Persons as assignee of BNPPLC will, for purposes of
computing payments required to any Participant hereunder, be considered as received by BNPPLC. In
addition, BNPPLC will be permitted to transfer any rights or interests as BNPPLC believes in good
faith to be necessary to satisfy the Operative Documents or Applicable Laws.
Annex 4 — Page 22
(C) Execution of Participation Agreement Supplements. Promptly after the execution
of a Participation Agreement Supplement by BNPPLC and any Participant, BNPPLC will provide a copy
thereof to all other Participants, but the other Participants need not join in or approve the
Participation Agreement Supplement for it to be effective.
(D) Regulation A. Notwithstanding subparagraphs 13(A) or 13(B), a Participant may
assign and pledge all or any portion of its rights under this Agreement to any Federal Reserve Bank
as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve
System and any Operating Circulars issued by such Federal Reserve Bank.
(E) Costs. Each Participant must pay all costs incurred by BNPPLC in connection with
any permitted assignment by or through such Participant, including, but not limited to, reasonable
fees and disbursements of its counsel, and any transfer taxes or other taxes assessed because of
such assignment which LRC is not required to pay under the Lease.
14. GOVERNING LAW; SUBMISSION TO PROCESS; WAIVER OF JURY TRIAL . This Agreement will
be deemed a contract made under the laws of the State of Texas and will be construed and enforced
in accordance with and governed by the laws of the State of Texas and the laws of the United States
of America, without regard to principles of conflict of laws. Each of BNPPLC and the Participants
hereby irrevocably submits itself to the non-exclusive jurisdiction of the state and the federal
courts sitting in Dallas, Texas, and agrees and consents that service of process may be made upon
it in any legal proceeding relating to this
Agreement by any means allowed under Texas or federal law. Each of BNPPLC and the Participants
hereby waives and agrees not to assert, by way of motion, as a defense or otherwise, that any such
proceeding which is brought in a court in Dallas, Texas is brought in an inconvenient forum or that
the venue thereof is improper. Each of BNPPLC and the Participants, knowingly, voluntarily and
intentionally waives any right to a jury trial of any dispute relating to this agreement
and agrees that any such dispute will be tried before a judge sitting without a jury.
15. Termination . This Agreement will terminate on the first date on which all
obligations of LRC under the Operative Documents have been indefeasibly paid or otherwise satisfied
or excused, BNPPLC has ceased to have any rights in the Property and each party hereto has fully
performed its obligations hereunder to the other parties hereto. The agreements of BNPPLC and the
Participants in subparagraph 3(B) (which concerns payments by Participants of their respective
Percentages of Protective Advances) will survive the termination of this Agreement. Following any
sale of the Property by BNPPLC pursuant to the Purchase Agreement and the payment to any
Participant of all amounts payable to it hereunder (including, without limitation,
Annex 4 — Page 23
an amount equal to such Participant’s Percentage of all Net Sales Proceeds paid by LRC or the
Applicable Purchaser on the Designated Sale Date), the Participant will, if asked to do so by
BNPPLC or LRC, execute and deliver a quitclaim and release (in recordable form) as to the Property
in favor of LRC or the Applicable Purchaser.
16. Miscellaneous .
(A) Reliance by Others. None of the provisions of this Agreement will inure to the
benefit of any Person other than the Participants and BNPPLC and BNPPLC’s Representatives;
consequently, no Persons other than the Participants, BNPPLC and BNPPLC’s Representatives may rely
upon or raise as a defense, in any manner whatsoever, the failure of any Participant or BNPPLC to
comply with the provisions of this Agreement. None of the Participants nor BNPPLC will incur any
liability to any other Person for any act of omission of another.
Notwithstanding the foregoing, however, LRC will be a third party beneficiary of each
Participant’s agreement to provided a release and quitclaim of the Property pursuant to the last
sentence of Paragraph 15. As a third party beneficiary of the obligations of the Participants
specified in the preceding sentence, LRC will have standing to exercise any remedies available at
law or in equity (including the recovery of monetary damages) against any Participant in LRC’s own
name if that Participant breaches such obligations. Further, BNPPLC may assign to LRC any claims
it may have against a Participant because of the Participant’s breach of any of the provisions
referenced in this paragraph or because of any adverse title claim made against the Property by,
through or under the Participant.
(B) Waivers, Etc. No delay or omission by any party to exercise any right under this
Agreement will impair any such right, nor will it be construed to be a waiver thereof. No waiver
of any single breach or default under this Agreement will be deemed a waiver of any other breach or
default. Any waiver, consent, or approval under this Agreement must be in writing to be effective.
(C) Severability. The illegality or unenforceability of any provision of this
Agreement will not in any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement.
(D) Notices. All notices, demands, approvals, consents and other
communications to be made hereunder to or by the parties hereto must, to be effective for purpose
of this Agreement, be in writing. Notices, demands and other communications required or permitted
hereunder are to be sent to the addresses set forth in Schedule 1 to this Agreement and must be
given by any of the following means: (A) personal service, with proof of delivery or attempted
delivery retained; (B) electronic communication, whether by telex, telegram or telecopying (if
confirmed in writing sent by United States first class mail, return receipt requested); or (C)
Annex 4 — Page 24
registered or certified first class mail, return receipt requested. Such addresses may be changed by notice to the other
parties given in the same manner as provided above. Any notice or other communication sent
pursuant to clause (A) or (C) hereof will be deemed received (whether or not actually received)
upon first attempted delivery at the proper notice address on any Business Day between 9:00 A.M.
and 5:00 P.M., and any notice or other communication sent pursuant to clause (B) hereof will be
deemed received upon dispatch by electronic means.
(E) Construction. Words of any gender used in this Agreement will be held and
construed to include any other gender, and words in the singular number will be held to include the
plural and vice versa, unless the context otherwise requires. References herein to Paragraphs,
subparagraphs or other subdivisions will refer to the corresponding Paragraph, subparagraphs or
subdivisions of this Agreement, unless specific reference is made to another document or
instrument. References herein to any Schedule or Exhibit will refer to the corresponding Schedule
or Exhibit attached hereto, which will be made a part hereof by such reference. All capitalized
terms used in this Agreement which refer to other documents will be deemed to refer to such other
documents as they may be renewed, extended, supplemented, amended or otherwise modified from time
to time so long as the documents are not renewed, extended or modified in breach of any provision
contained herein or therein or, in the case of any other document to which BNPPLC is a party or of
which BNPPLC is an intended beneficiary, without the consent of BNPPLC. All accounting terms used
but not specifically defined herein will be construed in accordance with GAAP. The words “this
Agreement”, “herein”, “hereof”, “hereby”, “hereunder” and words of similar import when used in this
Agreement refer to this Agreement as
a whole and not to any particular subdivision unless expressly so limited. The phrases “this
Paragraph” and “this subparagraph” and “this subsection” and similar phrases used herein refer only
to the Paragraphs, subparagraphs or subsections hereof in which the phrase occurs. As used herein
the word “or” is not exclusive. As used herein the words “include”, “including” and similar terms
will be construed as if followed by “without limitation to”. Relative to the determination of the
beginning and end of any time period for which any payment may be required or accrue, the word
“from” means “from and including”, and the word “to” means “to but excluding”. Similarly, relative
to any such determination, the words “begin on” means “begin on and include”, and the words “end
on” means “end on but not include”. The rule of ejusdem generis will not be applied to limit the
generality of a term in any of the Operative Documents when followed by specific examples. When
used to qualify any representation or warranty made by a Person, the phrases “to the knowledge of
[such Person]” or “to the best knowledge of [such Person]” are intended to mean only that such
Person does not have knowledge of facts or circumstances which make the representation or warranty
false or misleading in some material respect; such phrases are not intended to suggest that the
Person does indeed know the representation or warranty is true.
(F) Headings . The paragraph and section headings contained in this Agreement
are for convenience only and will in no way enlarge or limit the scope or meaning of the various
and
Annex 4 — Page 25
several provisions hereof.
(G) Entire Agreement. This Agreement embodies the entire agreement between the
parties, supersedes all prior agreements and understandings between the parties, if any, relating
to the subject matter hereof, and may be amended only by an instrument in writing executed by an
authorized representative of each party to be bound by such amendment.
(H) Further Assurances. Subject to any restriction in the Operative Documents, each
of BNPPLC and the Participants will promptly execute and deliver all further instruments and
documents and take all further action as any of them may reasonably request in order to evidence
the agreements made hereunder and otherwise to effect the purposes of this Agreement.
(I) Impairment of Operative Documents. Nothing herein contained (including the
provisions governing the application of payments in subparagraph 4(D) and the provisions
authorizing assignments by BNPPLC in subparagraph 13(B)) will impair or modify LRC’s rights under
the Operative Documents.
(J) Books and Records. BNPPLC will keep accurate books and records in which full,
true and correct entries will be promptly made as to all payments made and received concerning the
Property and will permit all such books and records (excluding any information that would otherwise
be protected by BNPPLC’s attorney client privilege) to be inspected and copied by the
Participants and their duly accredited representatives at all times during reasonable business
hours after five Business Days advance notice. This subparagraph will not be construed as
requiring BNPPLC to regularly maintain separate books and records relating exclusively to the
Property; however, upon reasonable request of a Participant, BNPPLC will, at the requesting
Participant’s expense, construct or abstract from its regularly maintained books and records
information required by this subparagraph relating to the Property.
(K) Definition of Knowledge. Representations and warranties made in this Agreement
but limited to the “knowledge” of BNPPLC or any Participant, as the case may be, will be limited to
the present actual knowledge of the officers or other employees of such party primarily responsible
for reviewing and negotiating this Agreement. Also, as used herein with respect to the existence
of any facts or circumstances after the date of this Agreement, “knowledge” of BNPPLC or a
Participant, as the case may be, will be limited to the present actual knowledge at the time in
question of the officers or other employees of such party primarily responsible for administering
this Agreement. However, none of the officers or employees of any party to this Agreement will be
personally liable for any representations or warranties made herein or for taking or failing to
take any action required hereby.
(L) Attorneys’ Fees . If any party to this Agreement commences any legal
action or other proceeding against another party hereto to enforce any of the terms of this
Agreement, or
Annex 4 — Page 26
because of any breach of the other party or dispute hereunder, the successful or prevailing
party will be entitled to recover from the nonprevailing party all Attorneys’ Fees incurred in
connection therewith, whether or not such controversy, claim or dispute is prosecuted to a final
judgment. Any such Attorneys’ Fees incurred by any party in enforcing a judgment in its favor
under this Agreement will be recoverable separately from such judgment, and the obligation for such
Attorneys’ Fees is intended to be severable from other provisions of this Agreement and not to be
merged into any such judgment.
(M) Execution in Counterparts . To facilitate execution, this Agreement may be
executed in multiple identical counterparts. It will not be necessary that the signature of, or on
behalf of, each party, or that the signature of all persons required to bind any party, appear on
each counterpart. All counterparts, taken together, will collectively constitute a single
instrument. But it will not be necessary in making proof of any of this Agreement to produce or
account for more than a single counterpart containing the respective signatures of, or on behalf
of, each of the parties to this Agreement. Any signature page may be detached from one counterpart
and then attached to a second counterpart with identical provisions without impairing the legal
effect of the signatures on the signature page. Signing and sending a counterpart (or a signature
page detached from the counterpart) by facsimile or other electronic means to another party will
have the same legal effect as signing and delivering an original counterpart to the other party. A
copy (including a copy produced by facsimile or other electronic means) of any signature page that
has
been signed by or on behalf of a party to this Agreement will be as effective as the original
signature page for the purpose of proving such party’s agreement to be bound.
Annex 4 — Page 27
17. Confidentiality Concerning LRC’s Proprietary Information . Each Participant agrees to
use reasonable precautions to keep confidential any “proprietary information” of LRC (as defined in
the Lease) that such Participant may receive from BNPPLC or LRC or otherwise discover with respect
to LRC or LRC’s business as a result of Participant’s involvement with the transactions
contemplated in the Operative Documents, except for disclosures: (i) specifically and previously
authorized in writing by LRC; (ii) to any assignee of the Participant as to any interest hereunder
so long as such assignee has agreed in writing to use its reasonable efforts to keep such
information confidential in accordance with the terms of this Paragraph; (iii) to legal counsel,
accountants, auditors, environmental consultants and other professional advisors to the Participant
so long as the Participant informs such persons in writing (if practicable) of the confidential
nature of such information and directs them to treat such information confidentially; (iv) to
regulatory officials having jurisdiction over the Participant (although the disclosing party will
request confidential treatment of the disclosed information, if practicable); (v) as required by
legal process (although the disclosing party will request confidential treatment of the disclosed
information, if practicable); and (vi) of information which has previously become publicly
available through the actions or inactions of a person other than the Participant not, to the
Participant’s knowledge, in breach of an obligation of confidentiality to LRC. Further,
notwithstanding any other contrary provision contained in this Agreement or any related agreements
by which any Participant is bound, BNPPLC and Participants (and each of their respective employees,
representatives or other agents) may disclose, without limitation of any kind, the tax treatment
and tax structure of the transactions contemplated by this Agreement or the Operative Documents and
all materials of any kind (including opinions or other tax analyses) that are provided to such
party relating to such tax treatment and tax structure, other than any information for which
non-disclosure is reasonably necessary in order to comply with applicable securities laws.
[The signature pages follow.]
Annex 4 — Page 28
IN WITNESS WHEREOF, this Participation Agreement (Livermore/Parcel 6) is executed to be
effective as of , 20___.
| BNP PARIBAS LEASING CORPORATION, a Delaware corporation |
||||
| By: | ||||
| Xxxxx X. Xxx, Managing Director | ||||
Annex 4 — Page 29
[Continuation of signature pages for Participation Agreement (Livermore/Parcel 6) dated as of
, 20___.]
| By: | ||||
| Name (print): | ||||
| Title (print): | ||||
Annex 4 — Page 30
SCHEDULE
1
| A. BNPPLC: BNP PARIBAS LEASING CORPORATION, a Delaware corporation |
||||||
| 1. | Amount Retained: $ | |||||
| 2. | Initial Percentage: ____% | |||||
| 3. | Address for Notices: | |||||
| BNP Paribas Leasing Corporation |
||||||
| 00000 Xxxxx Xxxxx |
||||||
| Xxxxx 000 |
||||||
| Xxxxxx, Xxxxx 00000 | ||||||
| Attention: Xxxxx X. Xxx | ||||||
| Telephone: (000) 000-0000 |
||||||
| Facsimile: (000) 000-0000 | ||||||
| 4. | Payment Instructions: | |||||
| Federal Reserve Bank of New York |
||||||
| ABA 000000000 BNP Paribas |
||||||
| /BNP/ BNP Houston |
||||||
| /AC/ 14334000176 |
||||||
| /Ref/ LRC/ Operating Lease | ||||||
| 5. | Operations Contact: | |||||
| BNP Paribas Leasing Corporation |
||||||
| 00000 Xxxxx Xxxxx |
||||||
| Xxxxx 000 |
||||||
| Xxxxxx, Xxxxx 00000 | ||||||
| Attention: Xxxxx X. Xxx | ||||||
| Telephone: (000) 000-0000 | ||||||
Annex 4 — Page 31
SCHEDULE
1
| Facsimile: (000) 000-0000 |
Annex 4 — Page 32
SCHEDULE
1
| B. Participant: | ||||||
| 1. | Amount of Participation: $___________ | |||||
| 2. | Percentage: ___% | |||||
| 3. | Address for Notices: | |||||
| Telephone: (___) ____-______ |
||||||
| Facsimile: (___) ____-______ | ||||||
| 4. | Payment Instructions: | |||||
| ***Federal Reserve Bank of New York | ||||||
| ABA | ||||||
| /Ref/ | ||||||
| 5. | Operations Contact: | |||||
| Telephone: (___) _____-______ |
||||||
| Facsimile: (___) _____-______ | ||||||
| 6. | “Initial Payment” Due from | |||||
| Participant to BNPPLC: | An amount equal to the Percentage specified above |
|||||
| times the Initial Advance as described in the |
||||||
| Common Definitions and Provisions Agreement. | ||||||
Annex 4 — Page 33
Exhibit A
SUPPLEMENT TO PARTICIPATION AGREEMENT
[ , ___]
BNP Paribas Leasing Corporation
00000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxx, Managing Director
00000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxx, Managing Director
Gentlemen:
Reference is made to the Participation Agreement (Livermore/Parcel 6) dated as of ,
20___ (as heretofore amended, the “Participation Agreement”) between BNP Paribas Leasing Corporation
(“BNPPLC”), a Delaware corporation, and other banks or financial
institutions which have or may from time to time become Participants under and as defined in such
Participation Agreement (collectively, the “Participants”). Unless otherwise defined herein, all
capitalized terms used in this Supplement have the respective meanings given to those terms in the
Participation Agreement.
[NOTE: THE NEXT TWO PARAGRAPHS, AND THE ADDENDUM TO SCHEDULE 1 ATTACHED TO THIS EXHIBIT,
WILL BE INCLUDED ONLY AS PART OF A SUPPLEMENT THAT ADDS A NEW PARTICIPANT UNDER THE PARTICIPATION
AGREEMENT:
The undersigned, by executing and delivering this Supplement to BNPPLC, hereby agrees to
become a party to the Participation Agreement referenced therein, in each case as a Participant and
agrees to be bound by all of the terms thereof applicable to Participants. The undersigned hereby
agrees that its Percentage under the Participation Agreement will be ___ percent
(___%), effective as of the date of this letter. Contemporaneously with the execution
of this letter, the undersigned is paying to BNPPLC the sum of $ in consideration of the rights it
is acquiring as a Participant under the Participation Agreement with the foregoing Percentage.
Schedule 1 attached to the Participation Agreement is amended by the addition of an Addendum
(concerning the undersigned) in the form attached to this Supplement.]
[NOTE: THE NEXT PARAGRAPH WILL BE INCLUDED ONLY IN A SUPPLEMENT THAT REDUCES AN EXISTING
PARTICIPANT’S PERCENTAGE UNDER THE
Annex 4 — Page 34
PARTICIPATION AGREEMENT:
In
consideration of the payment of $ to the undersigned, the receipt and sufficiency of
which is hereby acknowledged by the undersigned, the undersigned hereby agrees that its Percentage
under the Participation Agreement is reduced to percent ( ), effective as of the
date of this letter.]
[NOTE: THE NEXT PARAGRAPH WILL BE INCLUDED ONLY IN A SUPPLEMENT THAT INCREASES AN EXISTING
PARTICIPANT’S PERCENTAGE UNDER THE PARTICIPATION AGREEMENT:
The undersigned hereby agrees that its Percentage under the Participation Agreement is
increased to percent (___%), effective as of the date of
this letter. Contemporaneously with the execution of this letter, the undersigned is paying BNPPLC
the sum of $ in consideration of such increase.]
IN WITNESS WHEREOF, the undersigned has executed this Supplement as of the day and year
indicated above.
| [NAME] | ||||||
| By: | ||||||
| Printed Name: | ||||||
| Title: | ||||||
Accepted and agreed:
| BNP PARIBAS LEASING CORPORATION |
||||
| By: | ||||
| Printed Name: | ||||
| Title: | ||||
Annex 4 — Page 35
Addendum to Schedule 1
| Participant: | ||||||
| 1. | Amount of Participation: $ | |||||
| 2. | Percentage: ________% | |||||
| 3. | Address for Notices: | |||||
| Attention: | ||||||
| Telephone: | ||||||
| Facsimile: | ||||||
| 4. | Payment Instructions: | |||||
| Bank: | ||||||
| Account: | ||||||
| Account No.: | ||||||
| ABA No.: | ||||||
| Reference: | ||||||
| 5. | Operations Contact: | |||||
| Attention: | ||||||
| Telephone: | ||||||
| Facsimile: | ||||||
Annex 4 — Page 36
