SECOND MODIFICATION AGREEMENT (LIVERMORE/PARCEL 6)
Exhibit 10.145
SECOND MODIFICATION AGREEMENT
(LIVERMORE/PARCEL 6)
(LIVERMORE/PARCEL 6)
This SECOND MODIFICATION AGREEMENT (LIVERMORE/PARCEL 6) (this “Amendment”), dated as of July
9, 2008 (the “Amendment Date”), is made by and between BNP PARIBAS LEASING CORPORATION (“BNPPLC”),
a Delaware corporation, and XXX RESEARCH CORPORATION (“LRC”), a Delaware corporation.
RECITALS
BNPPLC and LRC have executed a Common Definitions and Provisions Agreement (Livermore/Parcel
6) dated as of December 18, 2007 (as previously modified, the “Common Definitions and Provisions
Agreement”), which by this reference is incorporated into and made a part of this Amendment for all
purposes. As used in this Amendment, capitalized terms defined in the Common Definitions and
Provisions Agreement and not otherwise defined in this Amendment are intended to have the
respective meanings assigned to them in the Common Definitions and Provisions Agreement.
BNPPLC and LRC have also executed a Construction Agreement (Livermore/Parcel 6) dated as of
December 18, 2007 (as previously modified, the “Construction Agreement”). Pursuant to the
Construction Agreement, BNPPLC has agreed to provide funding for the construction of new
Improvements on the Land, which is described in Exhibit A to this Amendment.
As requested by LRC, BNPPLC and LRC now desire to increase the Maximum Construction Allowance
under and as defined in the Construction Agreement and to modify the Construction Budget
incorporated into Exhibit B attached to the Construction Agreement.
AGREEMENTS
In consideration of the premises and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1 Amendments to the Construction Agreement.
(A) Modification of the Definition of Maximum Construction Allowance. The definition
of “Maximum Construction Allowance” in Paragraph 1 of the Construction Agreement
is amended, restated and replaced entirely by the following definition:
“Maximum Construction Allowance” means an amount equal to the
difference computed by subtracting the Initial Advance from
$35,975,000, as such amount may be increased from time to time by
any Increased Funding Commitment made by BNPPLC as provided in
subparagraph 7(B)(6).
(B) Modification of the Construction Budget. The budget incorporated into
Exhibit B to the Construction Agreement as the Construction Budget is amended, restated and
replaced entirely by the following revised budget:
Livermore Parcel 6 Lease
B1 — 0 Xxxxxxx Xxxxxx
Revised June 12, 2008
B1 — 0 Xxxxxxx Xxxxxx
Revised June 12, 2008
| LIVERMORE CONSTRUCTION BUDGET | Lease Cap | |||
| B1 | ||||
Bldgs and Land Purchase |
$ | 18,100,000 | ||
Construction |
||||
Construction Sub-Total: |
$ | 12,219,739 | ||
GC (Gen Cond & OH&P) |
$ | 743,529 | ||
Construction Contingency |
$ | 814,083 | ||
Construction Total: |
$ | 13,777,351 | ||
Other |
||||
IT |
$ | 329,125 | ||
Outfitting — Non-Mfg or Lab |
$ | — | ||
Services & Fees — Design/Construction |
$ | 655,300 | ||
IT / Outfitting / Services & Fees Contingency |
$ | 87,379 | ||
Legal & Accounting, Cap Int, other |
$ | 2,510,455 | ||
Pre-XXX/Construction T&M Design, Services, Fees, Permits |
$ | 77,898 | ||
“Construction” Period Operating Expenses |
$ | 437,492 | ||
| $ | 4,097,649 | |||
| $ | 35,975,000 | |||
2 Confirmation of Operative Documents by LRC. LRC ratifies and confirms all terms and
conditions of the Operative Documents, as hereby amended. LRC also confirms that LRC is not
currently aware of any Default or Event of Default which has occurred and is continuing or of any
defense, counterclaim, set-off, right of recoupment, abatement or other claim which LRC may now
have against BNPPLC under the Operative Documents.
Second Modification Agreement (Livermore/Parcel 6) — Page 2
3 Other Representations and Covenants of LRC. LRC also represents and covenants to BNPPLC
as follows:
(A) Concerning LRC and this Amendment.
(1) Authority. The Constituent Documents of LRC permit the execution, delivery and
performance of this Amendment by LRC, and all actions and approvals necessary to bind LRC
under this Amendment have been taken and obtained. Without limiting the foregoing, this
Amendment will be binding upon LRC when signed on behalf of LRC by Xxxx XxXxxxx, Treasurer
of LRC.
(2) No Default or Violation. The execution and performance by LRC of this Amendment do
not and will not contravene or result in a breach of or default under any other material
agreement to which LRC is a party or by which LRC is bound or which affects any assets of
LRC. Such execution and performance by LRC do not contravene any law, order, decree, rule
or regulation to which LRC is subject. Further, such execution and performance by LRC will
not result in the creation or imposition of (or the obligation to create or impose) any
lien, charge or encumbrance on, or security interest in, any property of LRC pursuant to the
provisions of any such other agreement.
(3) Enforceability. This Amendment constitutes the legal, valid and binding
obligations of LRC enforceable in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, receivership and other similar laws affecting the
rights of creditors generally.
(B) Further Assurances. LRC will, upon the reasonable request of BNPPLC, (i) execute,
acknowledge, deliver and record or file such further instruments and do such further acts as may be
necessary, desirable or proper to carry out more effectively the purposes of this Amendment and to
subject to this Amendment any property intended by the terms hereof to be covered hereby, including
specifically, but without limitation, any renewals, additions, substitutions, replacements or
appurtenances to the Property; (ii) execute, acknowledge, deliver, procure and record or file any
document or instrument reasonably requested by BNPPLC to protect its rights in and to the Property
against the rights or interests of third persons; and (iii) provide such certificates, documents,
reports, information, affidavits and other instruments and do such further acts as may be
reasonably necessary to enable BNPPLC to comply with the requirements or requests of any agency or
authority having jurisdiction over it.
(C) Reimbursement of Costs. LRC will pay or reimburse BNPPLC, upon demand, for all
reasonable out-of-pocket costs and expenses (including the reasonable fees, charges and
disbursements of counsel) incurred by BNPPLC in connection with the preparation, negotiation,
Second Modification Agreement (Livermore/Parcel 6) — Page 3
execution and delivery of this Amendment.
4 Reservation of Rights. The execution and delivery by BNPPLC of this Amendment will not
be deemed to create a course of dealing or otherwise obligate BNPPLC to enter into amendments under
the same, similar, or any other circumstances in the future. LRC is entering into this Amendment
on the basis of its own investigation and for its own reasons, without reliance upon BNPPLC or
Participants or any other Person. Except as expressly provided above, this Amendment will not
limit, modify or otherwise affect any of LRC’s obligations under any of the Operative Documents.
5 No Implied Representations or Promises by BNPPLC. LRC acknowledges and agrees that
neither BNPPLC nor its representatives or agents have made any representations or promises with
respect to the subject matter of this Amendment except as expressly set forth herein.
6 Provisions Incorporated by Reference from the Common Definitions and Provisions
Agreement. All terms and conditions set forth in Article II of the Common Definitions and
Provisions Agreement will apply to this Amendment as if this Amendment was one of the Operative
Documents specifically referenced therein.
7 References to Operative Documents. From and after the Amendment Date, all references to
any of the Operative Documents in the Operative Documents or in other documents related to the
transactions contemplated therein are intended to mean the Operative Documents, as modified by this
Amendment, unless the context shall otherwise require.
8 Successors and Assigns. All of the covenants, agreements, terms and conditions to be
observed and performed by the parties hereto shall be applicable to and binding upon their
respective heirs, personal representatives and successors and, to the extent assignment is
permitted under the Operative Documents, their respective assigns.
[The signature pages follow.]
Second Modification Agreement (Livermore/Parcel 6) — Page 4
IN WITNESS WHEREOF, this Second Modification Agreement (Livermore/Parcel 6) is executed to be
effective as of July 9, 2008.
| BNP PARIBAS LEASING CORPORATION, a Delaware corporation |
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| By: | /s/ Xxxxx Xxxxxxxxxx
|
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STATE OF TEXAS
|
) | |||||||
| ) | SS | |||||||
COUNTY OF DALLAS
|
) | |||||||
On July ___, 2008, before me , a Notary Public in and for the
County and State aforesaid, personally appeared Xxxxx Xxxxxxxxxx, Director of BNP Paribas Leasing
Corporation, who is personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and acknowledged to me that
he/she executed the same in his/her authorized capacity and that by his/her signature on such
instrument the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS, my hand and official seal. |
||
Second Modification Agreement (Livermore/Parcel 6) — Signature Page
[Continuation of signature pages for Second Modification Agreement (Livermore/Parcel 6) dated as of
July 9, 2008]
| XXX RESEARCH CORPORATION, a Delaware corporation |
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| By: | /s/ Xxxx XxXxxxx
|
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STATE OF CALIFORNIA
|
) | |||||||
| ) | SS | |||||||
COUNTY OF ALAMEDA
|
) | |||||||
On July ___, 2008, before me , a Notary Public in and for the
County and State aforesaid, personally appeared Xxxx XxXxxxx, Treasurer of Xxx Research
Corporation, who is personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and acknowledged to me that
he/she executed the same in his/her authorized capacity and that by his/her signature on such
instrument the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS, my hand and official seal. |
||
Second Modification Agreement (Livermore/Parcel 6) — Signature Page
Exhibit A
Legal Description
PARCEL 6, AS SAID PARCEL IS SHOWN ON THE PARCEL MAP 7341 FILED IN BOOK 268 OF PARCEL MAPS AT PAGE
85, ALAMEDA COUNTY RECORDS.
A.P.N. 000-0000-000
