1
EXHIBIT 10.55
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement" herein), dated as of June 30,
1999, is entered into by and between:
(1) SILICON VALLEY GROUP, INC., a Delaware corporation ("Lessee");
and
(2) SELCO SERVICE CORPORATION, an Ohio corporation doing business
in California as Ohio SELCO Service Corporation ("Lessor").
RECITALS
A. Lessee has requested Lessor and the financial institutions which are
"Participants" under the Participation Agreement referred to in Recital B below
(such financial institutions to be referred to collectively as the
"Participants") to provide to Lessee a lease facility pursuant to which:
(1) Lessor would (a) purchase certain property, (b) lease such
property to Lessee and (c) grant to Lessee the right to purchase such
property; and
(2) The Participants would participate in such lease facility by
(a) funding the advance to be made by Lessor to purchase such property
and (b) acquiring participation interests in the rental and certain other
payments to be made by Lessee.
B. Pursuant to a Participation Agreement dated of even date herewith (the
"Participation Agreement") among Lessee, Lessor, the Participants and KeyBank
National Association, as agent for the Participants (in such capacity, "Agent"),
Lessor and the Participants have agreed to provide such lease facility upon the
terms and subject to the conditions set forth therein, including without
limitation the execution and delivery of this Agreement setting forth the terms
for the purchase of the Property by Lessee from Lessor.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
SECTION 1. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this Agreement or any
other Operative Document, each term set forth in Schedule 1.01 to the
Participation Agreement, when used in this Agreement or any other Operative
Document, shall have the respective meaning given to
2
that term in such Schedule 1.01 or in the provision of this Agreement or other
document, instrument or agreement referenced in such Schedule 1.01.
1.02. Rules of Interpretation. Unless otherwise indicated in this
Agreement or any other Operative Document, the rules of interpretation set forth
in Schedule 1.02 to the Participation Agreement shall apply to this Agreement
and the other Operative Documents.
SECTION 2. OPTIONAL PURCHASE BY LESSEE DURING THE TERM.
2.01. Term Purchase Option. Subject to the terms and conditions of this
Agreement and the other Operative Documents (including those set forth below in
this Section 2), Lessee may, at its option on any Business Day selected by
Lessee prior to the Scheduled Expiration Date, terminate the Lease Agreement and
purchase all of the Property (the "Term Purchase Option").
2.02. Notice of Term Purchase Option Exercise. Lessee shall notify Lessor
of Lessee's exercise of the Term Purchase Option by delivering to Lessor an
irrevocable written notice in the form of Exhibit A, appropriately completed
(the "Notice of Term Purchase Option Exercise"), which states that Lessee is
exercising its right to terminate the Lease Agreement prior to the Scheduled
Expiration Date pursuant to Paragraph 4.01 of the Lease Agreement and purchase
all of the Property pursuant to this Section 2 and specifies the Business Day on
which such termination and purchase are to occur (which date, after the delivery
of such notice, shall be the Expiration Date). Lessee shall give the Notice of
Term Purchase Option Exercise to Lessor at least one (1) month prior to the
Business Day on which such termination and purchase are to occur. The Notice of
Term Purchase Option Exercise shall be delivered as required by Subparagraph
2.02(c) and Paragraph 7.01 of the Participation Agreement; provided, however,
that Lessee shall promptly deliver the original of any Notice of Term Purchase
Option Exercise initially delivered by facsimile.
2.03. Purchase Price . Lessee shall pay to Lessor on the Expiration Date,
as the purchase price for the Property, an amount equal to the Outstanding Lease
Amount on such date.
2.04. Effect of Certain Events. Lessee may exercise the Term Purchase
Option as provided in this Section 2, notwithstanding:
(a) The prior election by Lessee of the Return Option pursuant to
Subparagraph 3.01(a), provided that (i) Lessee completes the purchase of
the Property pursuant to the Term Purchase Option and this Agreement on
or prior to the Scheduled Expiration Date and (ii) Lessor has not
previously entered into an agreement with (A) a Designated Purchaser
following Lessee's election of the Return Option pursuant to Subparagraph
3.01(a) or (b) an Assignee Purchaser following Lessee's election and
subsequent assignment of the Expiration Date Purchase Option pursuant to
Paragraph 3.02; or
2
3
(b) The occurrence of any Event of Default or the exercise by the
Lessor Parties of any of their rights or remedies under the Operative
Documents following the occurrence of such Event of Default, provided
that (i) such exercise by Lessee of the Term Purchase Option after the
occurrence of any Event of Default shall not require the Lessor Parties
to cease exercising such rights and remedies unless and until Lessee
completes the purchase of the Property pursuant to the Term Purchase
Option and this Agreement and (ii) Lessee completes the purchase of the
Property pursuant to the Term Purchase Option and this Agreement prior to
the earlier of the Scheduled Expiration Date and the date the Lessor
Parties complete any judicial or non-judicial foreclosure sale of the
Property.
SECTION 3. OBLIGATIONS OF LESSEE ON THE EXPIRATION DATE.
3.01. Alternative. Unless Lessee has exercised the Term Purchase Option
or the Lease Agreement has otherwise been earlier terminated pursuant to
Subparagraph 5.03(a) of the Lease Agreement, Lessee may elect to exercise one of
the following options on the Expiration Date:
(a) Return Option. Lease may elect to return to Lessor on the
Expiration Date all, but not less than all, of the Property by delivering
to Lessor an irrevocable written notice in the form of Exhibit B,
appropriately completed ("Notice of Return Option Exercise"), which
states that Lessee is exercising its right to return the Property to
Lessor pursuant to this Paragraph 3.01 (the "Return Option"). Lessee
shall give the Notice of Return Option Exercise to Lessor at least three
hundred sixty-four (364) days prior to the then Scheduled Expiration
Date, in which case the Property shall be returned to Lessor in
accordance with Subparagraph 4.02 of the Lease Agreement on the
Expiration Date of the Lease Agreement, and the provisions of
Subparagraph 3.03(b) hereof shall apply (unless on or before such
Expiration Date, Lessee purchases the Property in accordance with Section
2 or Subparagraph 3.01(b), or the Property is to delivered to Designated
Purchaser in accordance with Subparagraph 3.02(b) hereof, in which case
the provisions of Subparagraph 3.03(a) hereof shall apply). The Notice of
Return Option Exercise shall be delivered as required by Subparagraph
2.02(c) and Paragraph 7.01 of the Participation Agreement; provided,
however, that Lessee shall promptly deliver to Lessor the original of any
notice initially delivered by facsimile. If Lessee has not given the
Notice of Return Option Exercise to Lessor as provided above, Lessee
shall have been conclusively deemed to have elected to purchase the
Property on the Expiration Date as provided in Subparagraph 3.01(b)
hereof; provided, however, that in no event shall such election
constitute a waiver by Lessee of its right to exercise the Term Purchase
Option prior to the Expiration Date. If Lessee has duly elected to
exercise the Return Option on the Expiration Date and the Property has
not been so returned or delivered to Lessor on the Expiration Date,
Lessee shall pay to Lessor such amounts as are required to be paid
pursuant to Subparagraph 4.03 of the Lease Agreement.
(b) Expiration Date Purchase Option. Subject to Subparagraph 5.03,
if Lessee does not elect to exercise the Return Option on the Expiration
Date in accordance with
3
4
Subparagraph 3.01(a) hereof, Lessee shall be deemed to have elected to
purchase Lessor's interest in all, but not less than all, of the Property
on the Expiration Date in accordance with Section 4 hereof, for an amount
equal to the Outstanding Lease Amount (the "Expiration Date Purchase
Option"). Notwithstanding the provisions of this Subparagraph 3.01(b),
Lessee may freely assign to an Assignee Purchaser its option to purchase
the Property from Lessor on the Expiration Date provided that such
Assignee Purchaser purchases Lessor's interest in all, but not less than
all, of the Property on the Expiration Date in accordance with Section 4
hereof, for an amount equal to the Outstanding Lease Amount.
3.02. Sale of Property to Third Party Purchaser.
(a) Remarketing Obligations Upon Exercise of Return Option. If
Lessee elects to exercise the Return Option in accordance with
Subparagraph 3.01(a) hereof, then Lessee shall have the obligation during
the final three hundred sixty-four (364) days of the Term (the "Marketing
Period"), to use such commercially reasonable efforts as would be made by
a self-interested property owner in the geographic area or areas in which
the Property is located to actively market commercial property and to
obtain bona fide bids for such Property from prospective purchasers who
are financially capable of purchasing the Property for cash on an as-is,
where-is basis, without recourse or warranty by Lessor (other than a
warranty against Lessor Liens) on the terms and conditions set forth in
this Subparagraph 3.02. Lessee shall be responsible for hiring brokers
who shall be reasonably acceptable to Lessor, and promptly upon Lessor's
request, shall permit inspection of the Property and any maintenance
records relating to the Property by Lessor, or any potential purchasers,
and shall otherwise do all things reasonably necessary to sell and
deliver possession of the Property to any such third party purchaser. All
such marketing of the Property shall be at Lessee's sole cost and
expense. Lessee shall allow Lessor and any potential purchaser access to
the Property for purposes of showing the same. All bids received by
Lessee during the Marketing Period shall be immediately certified to
Lessor in writing, setting forth the amount of such bid and the name and
address of the third party purchaser submitting such bid.
(b) Delivery of Property to Third Party Purchaser. On the
Expiration Date, Lessee shall deliver the Property to the third party
purchaser (if any) who shall have submitted the highest bid during the
Marketing Period (such third party purchaser, the "Designated
Purchaser"), and Lessor shall simultaneously therewith sell (or cause to
be sold), its ownership interest in the Property to such Designated
Purchaser; provided, however, that Lessor shall not be obligated to sell
the Property to such Designated Purchaser if the Net Proceeds of Sale of
the Property would be less than the Tranche B Proportionate Share of the
Outstanding Lease Amount.
(c) Delivery of Appraisals and Reports. Lessor shall have the
right (but not the obligation) in its sole discretion, but at Lessee's
sole cost and expense, to retain one or more Persons to act as its agent
for the purpose of determining compliance by Lessee with the conditions
applicable to a return of the Property pursuant to Subparagraph 4.02
4
5
of the Lease Agreement. Upon the request of Lessor and at Lessee's sole
cost and expense, Lessee shall provide Lessor with a written report
describing in reasonable detail Lessee's efforts during the Marketing
Period to obtain bona fide bids for the purchase of the Property,
including a list of all Persons approached for the purpose of soliciting
bids to purchase the Property.
3.03. End of Term Adjustment.
(a) This Subparagraph 3.03(a) shall apply only if the Property has
been sold to a Designated Purchaser on the Expiration Date pursuant to
Paragraph 3.02 hereof. If the Net Proceeds of Sale of the Property from a
sale to a Designated Purchaser are less than the Outstanding Lease Amount
on the date of the sale, Lessee shall, on the Expiration Date, pay to
Lessor, in immediately available funds, an amount equal to such
deficiency (a "Deficiency"); provided, however, that the amount of the
Deficiency to be paid by Lessee with respect to the Property shall not
exceed the following sum:
(i) An amount (the "Residual Value Guaranty Amount") equal
to the total Tranche A Proportionate Share of the Outstanding
Lease Amount on such date;
plus
(ii) An amount (the "Indemnity Amount") equal to the
decrease, if any, between the Commencement Date and the Expiration
Date in the fair market value of the Property caused by (A) any
representation or warranty of Lessee or any of its Affiliates
regarding the Property set forth in any of the Operative Documents
proving to be false or inaccurate when made, (B) the existence of,
or the failure of Lessee to pay any Governmental Charge,
Indebtedness or other obligation which might give rise to, any
Liens in the Property (other than Permitted Property Liens), (C)
the failure of Lessee to complete any Modifications, (D) the
impairment of the value, utility or useful life of the Property or
any part thereof in connection with Modifications, (E) the failure
of Lessee to comply with the Lease Agreement in removing any of
the Property or in removing or failing to remove any Lessee
Property; or (F) any other failure of Lessee to comply with any of
its obligations regarding the Property set forth in any of the
Operative Documents.
If the Net Proceeds of Sale of the Property exceed the Outstanding Lease
Amount on the date of such sale, Lessor shall pay to Lessee an amount
equal to such excess. Lessor's obligation to sell (or cause to be sold)
the Property to a Designated Purchaser in accordance with Paragraph 3.02
hereof is contingent upon the receipt of the amounts, if any, payable by
Lessee pursuant to this Subparagraph 3.03 (a).
(b) If, on the Expiration Date, either (i) Lessee or an Assignee
Purchaser does not purchase the Property pursuant to Subparagraph 3.01(b)
hereof, or (ii) a Designated Purchaser does not purchase the Property in
accordance with Paragraph 3.02 hereof,
5
6
Lessee shall immediately pay to Lessor (in addition to all unpaid Rent
accrued through or due and payable on or prior to such date and all other
amounts, if any, due and payable by Lessee under the Operative Documents
on or prior to such date) the Residual Value Guaranty Amount and the
Indemnity Amount. Thereafter, Lessor shall use commercially reasonable
efforts to sell the Property in a reasonable time to one or more
unrelated third parties for the fair market value of the Property. Upon
the consummation of any such sale of the Property, the total amount
realized from such sale shall be retained by Lessor, provided, however,
that if the Net Proceeds of Sale realized by Lessor exceed the Tranche B
Proportionate Share of the Outstanding Lease Amount on the Expiration
Date plus seven percent (7%) per annum thereon from and after the
Expiration Date to the date such sale is consummated (such sum, the
"Lessor's Retention Amount"), Lessee shall be entitled to receive from
Lessor an amount equal to the lesser of: (i) the amount by which the Net
Proceeds of Sale exceeds said Lessor's Retention Amount, and (ii) the sum
of the Residual Value Guaranty Amount and the Indemnity Amount as paid to
Lessor. Lessee shall remain liable for the payment of, and upon the
consummation by Lessor of the sale of the Property after the Expiration
Date, Lessee shall pay or reimburse Lessor for the payment of, all
applicable sales, excise, transfer, recording or other taxes imposed as a
result of such sale, and fees and all other expenses reasonably incurred
by Lessor as a result of such sale, including without limitation,
expenses incurred in titling and registering the conveyance of Lessor's
title to the Property, title insurance fees and expenses, Indemnified
Taxes and reasonable fees and expenses of Lessor's legal counsel.
SECTION 4. TERMS OF ALL PURCHASES.
4.01. Representations and Warranties of Parties.
(a) Representations and Warranties of Certain Purchasers. Each
Designated Purchaser shall represent and warrant to Lessor on the
Expiration Date as follows:
(i) Such Person is a legal entity duly organized, validly
existing and in good standing under the laws of its jurisdiction
of organization or an individual with legal capacity to purchase
the Property.
(ii) The execution, delivery and performance by such Person
of each document, instrument and agreement executed, or to be
executed, by such Person in connection with its purchase of the
Property (the "Purchase Documents") and the consummation of the
transactions contemplated thereby (A) are within the power of such
Person and (B) have been duly authorized by all necessary actions
on the part of such Person.
(iii) Each Purchase Document executed, or to be executed, by
such Person has been, or will be, duly executed and delivered by
such Person and constitutes, or will constitute, a legal, valid
and binding obligation of such Person, enforceable against such
Person in accordance with its terms, except as limited by
6
7
bankruptcy, insolvency or other laws of general application
relating to or affecting the enforcement of creditors' rights
generally and general principles of equity.
(iv) Such Person has not (A) made a general assignment for
the benefit of creditors, (B) filed any voluntary petition in
bankruptcy or suffered the filing of any involuntary petition by
such Person's creditors, (C) suffered the appointment of a
receiver to take possession of all, or substantially all, of such
Person `s assets, (D) suffered the attachment or other judicial
seizure of all, or substantially all, of such Person `s assets,
(E) admitted in writing its inability to pay its debts as they
come due, or (F) made an offer of settlement, extension or
composition to its creditors generally.
(v) Such Person is not a "party in interest" within the
meaning of Section 3(14) of the ERISA, with respect to any
investor in or beneficiary of Lessor.
(b) Representations and Warranties of Lessor and Lessee. Each of
Lessor and Lessee shall represent and warrant to each purchaser of the
Property, whether Lessee, an Assignee Purchaser or a Designated Purchaser
(a "Purchaser"), on the Expiration Date as follows:
(i) Such Person is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction
of organization.
(ii) The execution, delivery and performance by such Person
of each Purchase Document executed, or to be executed, by such
Person and the consummation of the transactions contemplated
thereby (A) are within the power of such Person and (B) have been
duly authorized by all necessary actions on the part of such
Person.
(iii) Each Purchase Document executed, or to be executed, by
such Person has been, or will be, duly executed and delivered by
such Person and constitutes, or will constitute, a legal, valid
and binding obligation of such Person, enforceable against such
Person in accordance with its terms, except as limited by
bankruptcy, insolvency or other laws of general application
relating to or affecting the enforcement of creditors' rights
generally and general principles of equity.
(iv) Such Person has not (A) made a general assignment for
the benefit of creditors, (B) filed any voluntary petition in
bankruptcy or suffered the filing of any involuntary petition by
such Person's creditors, (C) suffered the appointment of a
receiver to take possession of all, or substantially all, of such
Person's assets, (D) suffered the attachment or other judicial
seizure of all, or substantially all, of such Person's assets, (E)
admitted in writing its inability to pay its debts as they come
due, or (F) made an offer of settlement, extension or composition
to its creditors generally.
7
8
In addition to the foregoing, (A) Lessee shall represent and warrant to
the Designated Purchaser (or Lessor if Lessor is to retain the Property)
on the Expiration Date that no Liens are attached to the Property, except
for Permitted Property Liens, and (B) Lessor shall represent and warrant
to Purchaser on the Expiration Date that no Lessor Liens are attached to
the Property. Lessee shall also provide to the Designated Purchaser all
customary seller's indemnities (including environmental indemnities),
representations and warranties regarding the condition of the Property.
Except for the foregoing representations and warranties to be made by
Lessor on the Expiration Date, no Lessor Party shall make any
representation or warranty regarding the Property or the sale of the
Property.
(c) Survival of Representations and Warranties. The
representations and warranties of Purchaser, Lessor and Lessee shall
survive for a period of twelve (12) months after the Expiration Date. Any
claim which any such party may have at any time against any other such
party for a breach of any such representation or warranty, whether known
or unknown, which is not asserted by written notice within such twelve
(12) month period shall not be valid or effective, and the party shall
have no liability with respect thereto.
4.02. "As Is" Purchase. All purchases of the Property hereunder shall be
"as is, with all faults" and without any representations, warranties or
indemnities by the Lessor Parties except for any representations, warranties or
indemnities provided by Lessor pursuant to Subparagraph 4.01(b). Purchaser shall
specifically acknowledge and agree that Lessor is selling and Purchaser is
purchasing the Property on an "as is, with all faults" basis and that Purchaser
is not relying on any representations or warranties of any kind whatsoever,
express or implied, from any Lessor Party, its agents, or brokers as to any
matters concerning the Property (except for any representations and warranties
provided by Lessor pursuant to Subparagraph 4.01(b)), including (a) the
condition of the Property (including any Improvements or other Modifications to
the Property made prior to the Commencement Date or during the Term of the Lease
Agreement); (b) title to the Property (including possession of the Property by
any Person or the existence of any Lien or any other right, title or interest in
or to any of the Property in favor of any Person); (c) the value, habitability,
usability, design, operation or fitness for use of the Property; (d) the
availability or adequacy of utilities and other services to the Property; (e)
any latent, hidden or patent defect in the Property; (f) the zoning or status of
the Property or any other restrictions on the use of the Property; (g) the
economics of the Property; (h) any Casualty or Condemnation; or (i) the
compliance of the Property with any applicable Governmental Rule or Insurance
Requirement.
4.03. Release. Without limiting the foregoing, Purchaser shall, on behalf
of itself and its successors and assigns, waive its right to recover from, and
forever release and discharge, Lessor and the other Indemnitees from any and all
demands, claims, legal or administrative proceedings, losses, liabilities,
damages, penalties, fines, liens, judgments, costs or expenses whatsoever
(including attorneys' fees and costs), whether direct or indirect, known or
unknown, foreseen or unforeseen, that may arise on account of or in any way be
connected with the physical condition of the Property or any Governmental Rule
applicable thereto, including any
8
9
Environment Law. Purchaser shall expressly waive the benefits of Section 1542 of
the California Civil Code, which provides that, "a general release does not
extend to claims which the creditor does not know or expect to exist in his
favor at the time of executing the release, which if known to him must have
materially affected the settlement with the debtor."
4.04. Permits, Approvals, Etc. Lessee shall obtain all permits, licenses
and approvals from and make all filings with Governmental Authorities and other
Persons, comply and cause compliance with all applicable Governmental Rules and
take all other actions required for the marketing, purchase and sale of the
Property.
4.05. Costs. Lessee shall pay directly, without deduction from the
purchase price or any other amount payable to Lessor hereunder, all costs and
expenses of Lessee and Lessor associated with the marketing and sale of the
Property, including brokers' fees and commissions; title insurance premiums;
survey charges; utility, tax and other prorations; fees and expenses of
environmental consultants and attorneys; appraisal costs; escrow fees; recording
fees; documentary, transfer and other taxes; and all other fees, costs and
expenses which might otherwise be deducted from the purchase price or any other
amount payable to Lessor hereunder.
4.06. Lessor Liens. Lessor shall remove all Lessor Liens from the
Property on or before the Expiration Date.
4.07. Transfer Documents.
(a) Lessor. Subject to receipt by Lessor on the Expiration Date of
the full amount required to be paid for the Property pursuant to
Paragraph 2.03, Subparagraph 3.01(b) or Subparagraph 3.03 (as
applicable), Lessor shall transfer its interest in the Property to
Purchaser on the Expiration Date (unless Lessor is to retain the Property
pursuant to Subparagraph 3.01(a)) by executing and delivering to
Purchaser a Deed in substantially the form of Exhibit C(1) , an
Acknowledgment of Disclaimer of Representations and Warranties in
substantially the form of Exhibit C(2), and (if applicable) a Xxxx of
Sale in substantially the form of Exhibit D and such other documents,
instruments and agreements as such Person may reasonably request.
(b) Lessee. On the Expiration Date, unless Lessee is to purchase
the Property, Lessee shall transfer its interest in the Property to the
Designated Purchaser or the Assignee Purchaser (or Lessor if Lessor is to
retain the Property) by executing and delivering to such Person a Deed in
substantially the form of Exhibit E, and (if applicable) a Xxxx of Sale
in substantially the form of Exhibit F and such other documents,
instruments and agreements as such Person may reasonably request.
4.08. Casualty and Condemnation Proceeds. If, on the Expiration Date, any
Casualty and Condemnation Proceeds are held by Lessor in a Repair and
Restoration Account or otherwise, Lessor shall (a) if Lessee is to purchase the
Property on the Expiration Date and Lessee shall so direct, apply such proceeds
to the purchase price to be paid by Lessee or (b) in all other cases, release
such proceeds to Lessee; provided, however, that Lessor shall not have any
9
10
obligation so to apply or release such proceeds unless Lessee and/or any
Designated Purchaser has complied with all of the terms and conditions of this
Agreement.
4.09. Payments. Purchaser and Lessee shall make all payments in lawful
money of the United States and in same day or immediately available funds not
later than 11:00 a.m. on the date due.
4.10. Environmental Reports. Lessee shall obtain and deliver to Lessor,
in accordance with Paragraph 4.02 of the Lease Agreement, environmental reports
and assessments with respect to the Property.
4.11. Further Assurances. Lessee shall, and shall cause any Designated
Purchaser to, execute and deliver such documents, instruments and agreements and
take such other actions as Lessor may reasonably request to effect the purposes
of this Agreement and comply with the terms hereof. Similarly, Lessor shall
execute and deliver such documents, instruments and agreements and take such
other actions as Lessee or a Designated Purchaser may reasonably request to
effect the purposes of this Agreement and comply with the terms hereof.
10
11
SECTION 5. MISCELLANEOUS.
5.01. Notices. Except as otherwise specified herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Lessee or Lessor under this Agreement shall be given as provided in Subparagraph
2.02(c) and Paragraph 7.01 of the Participation Agreement.
5.02. Waivers, Amendments. Any term, covenant, agreement or condition of
this Agreement may be amended or waived only as provided in the Participation
Agreement. No failure or delay by any Lessor Party in exercising any right
hereunder shall operate as a waiver thereof or of any other right nor shall any
single or partial exercise of any such right preclude any other further exercise
thereof or of any other right. Unless otherwise specified in any such waiver or
consent, a waiver or consent given hereunder shall be effective only in the
specific instance and for the specific purpose for which given.
5.03. Successors and Assigns.
(a) General. This Agreement shall be binding upon and inure to the
benefit of the Lessor Parties and Lessee and their permitted successors
and assigns; provided, however, that the Lessor Parties and Lessee shall
not sell, assign or delegate their respective rights and obligations
hereunder except as provided in the Participation Agreement and in
Subparagraph 5.03(b).
(b) Assignment by Lessee of Purchase Rights. Lessee may assign to
a third party (an "Assignee Purchaser") its right to purchase the
Property pursuant to the Term Purchase Option or the Expiration Date
Purchase Option; provided, however, that (i) such an assignment shall not
relieve Lessee of its obligations to consummate or cause the consummation
of any such purchase in accordance with the terms of this Agreement and
(ii) Lessee assumes all responsibility for determining the
creditworthiness of any such Assignee Purchaser. If, after any purchase
by an Assignee Purchaser hereunder, the purchase price paid by such
Assignee Purchaser is recovered from any Lessor Party, Lessee shall
reimburse such Lessor Party for such recovery unless such recovery is due
solely to a material misrepresentation or covenant breach by such Lessor
Party.
5.04. No Third Party Rights. Nothing expressed in or to be implied from
this Agreement is intended to give, or shall be construed to give, any Person,
other than the Lessor Parties and Lessee and their permitted successors and
assigns, any benefit or legal or equitable right, remedy or claim under or by
virtue of this Agreement or under or by virtue of any provision herein.
5.05. Partial Invalidity. If at any time any provision of this Agreement
is or becomes illegal, invalid or unenforceable in any respect under the law or
any jurisdiction, neither the legality, validity or enforceability of the
remaining provisions of this Agreement nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
11
12
5.06. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without reference to
conflicts of law rules.
5.07. Counterparts. This Agreement may be executed in any number of
identical counterparts, any set of which signed by all the parties hereto shall
be deemed to constitute a complete, executed original for all purposes.
5.08. Nature of Lessee's Obligations.
(a) Independent Obligation. The obligation of Lessee to pay the
amounts payable by Lessee under this Agreement and the other Operative
Documents and to perform the other Lessee Obligation are absolute,
unconditional (except as expressly provided herein) and irrevocable
obligations which are separate and independent of the obligations of the
Lessor Parties under this Agreement and the other Operative Documents and
all other events and circumstances, including the events and
circumstances set forth in Subparagraph 5.08(c).
(b) No Termination or Abatement. This Agreement and the other
Operative Documents and Lessee's obligation to pay all amounts hereunder
and to pay and perform all other Lessee Obligations shall continue in
full force and effect without abatement notwithstanding the occurrence or
existence of any event or circumstance, including any event or
circumstance set forth in Subparagraph 5.08(c).
(c) Full Payment and Performance. Lessee shall make all payments
under this Agreement and the other Operative Documents in the full
amounts and at the times required by the terms of this Agreement and the
other Operative Documents without setoff, deduction or reduction of any
kind and shall perform all other Lessee Obligations as and when required,
without regard to any event or circumstances whatsoever, including (i)
the condition of the Property (including any Improvements or other
Modifications to the Property made prior to the Commencement Date or
during the Term of the Lease Agreement); (ii) title to the Property
(including possession of the Property by any Person or the existence of
any Lien or any other right, title or interest in or to any of the
Property in favor of any Person); (iii) the value, habitability,
usability, design, operation or fitness for use of the Property; (iv) the
availability or adequacy of utilities and other services to the Property;
(v) any latent, hidden or patent defect in the Property; (vi) the zoning
or status of the Property or any other restrictions on the use of the
Property; (g) the economics of the Property; (vii) any Casualty or
Condemnation; (viii) the compliance of the Property with any applicable
Governmental Rule or Insurance Requirement; (ix) any failure by any
Lessor Party to perform any of its obligations under this Agreement or
any other Operative Document (other than the obligations of Lessor
pursuant to Paragraph 4.06 and Subparagraph 4.07(a)); or (x) the exercise
by any Lessor Party of any of its remedies under this Agreement or any
other Operative Document; provided, however, that (A) Lessee shall have
no obligation to purchase the Property on the Expiration Date if Lessor
fails to remove Lessor Liens or deliver the required deed and xxxx of
sale or other documents required to be delivered by Lessor hereunder and
(B)
12
13
this Paragraph 5.08 shall not abrogate any right which Lessee may have to
recover damages from any Lessor Party for any material breach by such
Lessor Party of its obligations under this Agreement or any other
Operative Document to the extent permitted hereunder or thereunder.
13
14
IN WITNESS WHEREOF, Lessee and Lessor have caused this Agreement to be
executed as of the day and year first above written.
LESSEE: SILICON VALLEY GROUP, INC.
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
LESSOR: SELCO SERVICE CORPORATION
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
14
15
EXHIBIT A
NOTICE OF TERM PURCHASE OPTION EXERCISE
[Date]
SELCO Service Corporation
c/o KeyBank National Association
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
1. Reference is made to the following:
(a) The Participation Agreement, dated as of June 30, 1999 (the
"Participation Agreement"), among Silicon Valley Group, Inc. ("Lessee"),
SELCO Service Corporation ("Lessor"), the financial institutions listed
in Schedule I to the Participation Agreement (the "Participants") and
KeyBank National Association, as agent for the Participants (in such
capacity, "Agent");
(b) The Lease Agreement, dated as of June 30, 1999 (the "Lease
Agreement"), between Lessee and Lessor; and
(c) The Purchase Agreement, dated as of June 30, 1999 (the
"Purchase Agreement"), between Lessee and Lessor.
Unless otherwise indicated, all terms defined in the Participation Agreement
have the same respective meanings when used herein.
2. Pursuant to Paragraph 4.01 of the Lease Agreement and Section 2 of the
Purchase Agreement, Lessee hereby irrevocably notifies Lessor that Lessee is
exercising its right to terminate the Lease Agreement prior to the Scheduled
Expiration Date and purchase the Property on [_________, ____] (which date is a
Business Day and which date, after the delivery of this notice, shall be the
Expiration Date).
IN WITNESS WHEREOF, Lessee has executed this Notice of Term Purchase
Option Exercise on the date set forth above.
SILICON VALLEY GROUP, INC.
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
A-1
16
EXHIBIT B
NOTICE OF RETURN OPTION EXERCISE
[Date]
SELCO Service Corporation
c/o KeyBank National Association
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
1. Reference is made to the following:
(a) The Participation Agreement, dated as of June 30, 1999 (the
"Participation Agreement"), among Silicon Valley Group, Inc. ("Lessee"),
SELCO Service Corporation ("Lessor"), the financial institutions listed
in Schedule I to the Participation Agreement (the "Participants") and
KeyBank National Association, as agent for the Participants (in such
capacity, "Agent"); and
(b) The Purchase Agreement, dated as of June 30, 1999 (the
"Purchase Agreement"), between Lessee and Lessor.
Unless otherwise indicated, all terms defined in the Participation Agreement
have the same respective meanings when used herein.
2. Pursuant to Paragraph 3.01 of the Purchase Agreement, Lessee hereby
notifies Lessor that Lessee is electing to exercise the Return Option on the
Scheduled Expiration Date of [_____, ____].
3. Lessee hereby certifies to Lessor, Agent and the Participants that, on
the date of this notice:
(a) The representations and warranties of Lessee set forth in
Paragraph 4.01 of the Participation Agreement are true and correct in all
material respects as if made on such date (except for representations and
warranties expressly made as of a specified date, which shall be true as
of such date);
(b) No Default has occurred and is continuing; and
(c) All of the Operative Documents are in full force and effect on
such date.
B-1
17
IN WITNESS WHEREOF, Lessee has executed this Notice of Return Option
Exercise on the date set forth above.
SILICON VALLEY GROUP, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
B-2
18
EXHIBIT C(1)
RECORDING REQUESTED BY
WHEN RECORDED RETURN TO
AND MAIL TAX STATEMENTS TO:
[Purchaser]
------------------
------------------
------------------
Documentary Transfer Tax is not of public record and is shown on a separate
sheet attached to this deed.
----------------------------------------------------------------------------
QUITCLAIM DEED
FOR VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged,
SELCO Service Corporation, an Ohio corporation doing business in California as
Ohio SELCO Service Corporation ("Grantor"), hereby releases, remises and forever
quitclaims to [Purchaser], a _____________ ("Grantee"), the real property
located in the County of [________________], State of California, described on
EXHIBIT A attached hereto and made a part hereof (the "Property").
Executed as of ________________, ____.
SELCO SERVICE CORPORATION,
an Ohio corporation
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
C(1)-1
19
EXHIBIT A
LEGAL DESCRIPTION
Assessor's Parcel No.:
------------------
C(1)(A)-1
20
State of
----------------
County of
----------------------
On before me, ,
------------------- -------------------------
Date Name, Title of Officer
personally appeared ,
-----------------------------------------------------------
Name(s) of signer(s)
(personally known to me -OR- (proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s) or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
------------------------------------
21
----------------------, ----
[___________] Recorder
Re: Request That Statement of Documentary
Transfer Tax Not be Recorded
Dear Sir:
Request is hereby made in accordance with Section 11932 of the Revenue
and Taxation Code that this statement of tax due not be recorded with the
attached deed but be affixed to the deed after recordation and before return as
directed on the deed.
The attached deed names SELCO SERVICE CORPORATION, an Ohio corporation
doing business in California as Ohio SELCO Service Corporation, as grantor, and
[PURCHASER], a _________________, as grantee.
The property being transferred and described in the attached deed is
located in the [City of _________ and County of_______], State of California.
The amount of Documentary Transfer Tax due on the attached deed is
$__________, computed on full value of the property conveyed.
SELCO SERVICE CORPORATION
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
22
EXHIBIT C(2)
ACKNOWLEDGMENT AND DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
THIS ACKNOWLEDGMENT OF DISCLAIMER OF REPRESENTATIONS AND WARRANTIES (this
"Certificate") is made as of ___________, ____ by [PURCHASER], a _____________
("Grantee").
Contemporaneously with execution of this Acknowledgement, SELCO SERVICE
CORPORATION, an Ohio corporation doing business in California as Ohio SELCO
Service Corporation ("Grantor"), is executing and delivering to Grantee a
Quitclaim Deed and a Xxxx of Sale (the foregoing documents and any other
documents to be executed and delivered to Grantee in connection therewith are
herein called the "Conveyancing Documents" and any of the properties, rights or
other matters assigned, transferred or conveyed pursuant thereto are herein
collectively called the "Property") pursuant to the terms of a Purchase
Agreement dated as of June 30, 1999 by and between Grantor and Silicon Valley
Group, Inc., a Delaware corporation ("Lessee").
Notwithstanding any provision contained in the Conveyancing Documents to
the contrary, Grantee acknowledges that Grantor is selling and Grantee is
purchasing the Property on an "as is, with all faults" basis and that, except as
expressly set forth in the Conveyancing Documents executed by Grantor to the
contrary, Grantee is not relying on any representations or warranties of any
kind whatsoever, express or implied, from Grantor, its agents, or brokers as to
any matters concerning the Property including (a) the condition of the Property
(including any improvements to the Property); (b) title to the Property
(including possession of the Property by any individual or entity or the
existence of any lien or any other right, title or interest in or to any of the
Property in favor of any person, but excluding any Lessor Liens as defined in
that certain Participation Agreement dated as of June 30, 1999 among Grantor,
Lessee, the Participants and KeyBank National Association, as agent for the
Participants (in such capacity, "Agent")); (c) the value, habitability,
usability, design, operation or fitness for use of the Property; (d) the
availability or adequacy of utilities and other services to the Property; (e)
any latent, hidden or patent defect in the Property; (f) the zoning or status of
the Property or any other restrictions on the use of the Property; (g) the
economics of the Property; (h) any damage to, destruction or, or decrease in the
value of all or any portion of the Property or any condemnation or other taking
or sale of all or any portion of the Property, by or on account of any actual or
threatened eminent domain proceeding or other taking of action by any
governmental authority or other person have the power of eminent domain; or (i)
the compliance of the Property with any applicable law, rule, regulation,
ordinance, order, code, judgment or similar form of decision of any governmental
authority or any terms, conditions or requirements imposed by any policies of
insurance relating to the Property.
[See next page]
C(2)-1
23
The provisions of this Acknowledgement shall be binding on Grantee, its
successors and assigns and any other party claiming through Grantee. Grantee
hereby acknowledges that Grantor is entitled to rely and is relying on this
Certificate.
EXECUTED as of ____________, _______.
[PURCHASER]
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
C(2)-2
24
EXHIBIT D
XXXX OF SALE
FOR GOOD AND VALUABLE CONSIDERATION, the receipt of which is hereby
acknowledged, SELCO SERVICE CORPORATION, an Ohio corporation doing business in
California as Ohio SELCO Service Corporation ("Seller") does hereby sell,
transfer and convey to [PURCHASER], a _________________________ ("Purchaser"),
the personal property owned by Seller in connection with that certain real
property commonly known as _______________, _________, California, including,
without limitation, the personal property itemized on SCHEDULE 1 attached hereto
and incorporated herein by this reference (the "Property").
Seller is selling and Purchaser is purchasing the Property on an "as is,
with all faults" basis and, except as expressly set forth in the Conveyancing
Documents executed by Seller to the contrary, Purchaser is not relying on any
representations or warranties of any kind whatsoever, express or implied, from
Seller, its agents, or brokers as to any matters concerning the Property
including (a) the condition of the Property; (b) title to the Property
(including possession of the Property by any individual or entity or the
existence of any lien or any other right, title or interest in or to any of the
Property in favor of any person); (c) the value, habitability, usability,
design, operation or fitness for use of the Property; or (d) any latent, hidden
or patent defect in the Property.
Dated: ____________, ____
SELCO SERVICE CORPORATION
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
[PURCHASER]
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
D-1
25
SCHEDULE 1
PROPERTY
D(1)-1
26
EXHIBIT E
RECORDING REQUESTED BY
WHEN RECORDED RETURN TO
AND MAIL TAX STATEMENTS TO:
-------------------------
-------------------------
Attention:
---------------
Documentary Transfer Tax is not of public record and is shown on a separate
sheet attached to this deed.
--------------------------------------------------------------------------------
QUITCLAIM DEED
FOR VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged,
SILICON VALLEY GROUP, INC., a Delaware corporation ("Grantor"), hereby releases,
remises and forever quitclaims to [PURCHASER] ("Grantee"), the real property
located in the [County of _______], State of California, described on EXHIBIT A
attached hereto and made a part hereof (the "Property").
Executed as of __________, ____.
SILICON VALLEY GROUP, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
E-1
27
EXHIBIT A
LEGAL DESCRIPTION
Assessor's Parcel No.: ____________________
E(A)-1
28
State of
----------------------
County of
---------------------
On before me, ,
------------------- -------------------------
Date Name, Title of Officer
personally appeared ,
---------------------
Name(s) of signer(s)
(personally known to me -OR- (proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s) or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
29
-------------------- , ----
[___________] Recorder
Re: Request That Statement of Documentary
Transfer Tax Not be Recorded
Dear Sir:
Request is hereby made in accordance with Section 11932 of the Revenue
and Taxation Code that this statement of tax due not be recorded with the
attached deed but be affixed to the deed after recordation and before return as
directed on the deed.
The attached deed names SILICON VALLEY GROUP, INC., a Delaware
corporation, as grantor, and [PURCHASER], as grantee.
The property being transferred and described in the attached deed is
located in the [City of _______, County of _______], State of California.
The amount of Documentary Transfer Tax due on the attached deed is
$__________, computed on full value of the property conveyed.
SILICON VALLEY GROUP, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
30
EXHIBIT F
XXXX OF SALE
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Silicon Valley Group, Inc., a Delaware corporation
("Seller"), does hereby sell, transfer, and convey unto [PURCHASER] ("Buyer"),
the personal property owned by Seller in connection with that certain real
property commonly known as _______________, ________, California, which Seller
warrants to be free and clear of all liens and encumbrances other than Lessor
Liens and those disclosed on EXHIBIT A, including, without limitation, the
personal property itemized on SCHEDULE 1 attached hereto and incorporated herein
by this reference.
Seller does hereby covenant with Buyer that Seller is the lawful owner of
such personal property, and that the undersigned has good right to sell the same
as aforesaid and will warrant and defend the title thereto unto Buyer, its
successors and assigns, against the claims and demands of all persons
whomsoever.
DATED this ____ day of __________, ____.
SILICON VALLEY GROUP, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
G-1
31
EXHIBIT A
PROPERTY
F-1
32
SCHEDULE 1
PROPERTY
F(1)-1
33
EXECUTION VERSION
================================================================================
PURCHASE AGREEMENT
BETWEEN
SILICON VALLEY GROUP, INC.
AND
SELCO SERVICE CORPORATION
JUNE 30, 1999
================================================================================
34
TABLE OF CONTENTS
PAGE
----
SECTION 1. INTERPRETATION.............................................................................1
1.01. Definitions................................................................................1
1.02. Rules of Interpretation....................................................................2
SECTION 2. OPTIONAL PURCHASE BY LESSEE DURING THE TERM................................................2
2.01. Term Purchase Option.......................................................................2
2.02. Notice of Term Purchase Option Exercise....................................................2
2.03. Purchase Price.............................................................................2
2.04. Effect of Certain Events...................................................................2
SECTION 3. OBLIGATIONS OF LESSEE ON THE EXPIRATION DATE...............................................3
3.01. Alternative................................................................................3
3.02. Sale of Property to Third Party Purchaser..................................................4
3.03. End of Term Adjustment.....................................................................4
SECTION 4. TERMS OF ALL PURCHASES.....................................................................6
4.01. Representations and Warranties of Parties..................................................6
4.02. "As Is" Purchase...........................................................................8
4.03. Release....................................................................................8
4.04. Permits, Approvals, Etc....................................................................8
4.05. Costs......................................................................................8
4.06. Lessor Liens...............................................................................9
4.07. Transfer Documents.........................................................................9
4.08. Casualty and Condemnation Proceeds.........................................................9
4.09. Payments...................................................................................9
4.10. Environmental Reports......................................................................9
4.11. Further Assurances.........................................................................9
SECTION 5. MISCELLANEOUS.............................................................................10
5.01. Notices...................................................................................10
5.02. Waivers, Amendments.......................................................................10
5.03. Successors and Assigns....................................................................10
5.04. No Third Party Rights.....................................................................10
5.05. Partial Invalidity........................................................................10
5.06. Governing Law.............................................................................10
-i-
35
TABLE OF CONTENTS
(CONTINUED)
PAGE
----
5.07. Counterparts..............................................................................11
5.08. Nature of Lessee's Obligations............................................................11
EXHIBITS
A Notice of Term Purchase Option Exercise (2.02)
B Notice of Return Option Exercise (3.01)
C(1) Deed (Lessor) (4.07(a))
C(2) Acknowledgement and Disclaimer of Representations and Warranties (4.07(a))
D Xxxx of Sale (Lessor) (4.07(a))
E Deed (Lessee) (4.07(b))
F Xxxx of Sale (Lessee) (4.07(b))
-ii-
