Table of Contents

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 10-Q

 

 

(Mark One)

x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended December 29, 2013

or

 

¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from                      to                     

Commission file number 0-12933

 

 

LAM RESEARCH CORPORATION

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   94-2634797

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

4650 Cushing Parkway

Fremont, California

  94538
(Address of principal executive offices)   (Zip Code)

(510) 572-0200

(Registrant’s telephone number, including area code)

 

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes   x     No   ¨

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes   x     No   ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act:

 

Large accelerated filer   x    Accelerated filer   ¨
Non-accelerated filer   ¨   (Do not check if a smaller reporting company)    Smaller reporting company   ¨

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes   ¨     No   x

As of January 31, 2014, the Registrant had 162,312,544 shares of common stock outstanding.

 

 

 


Table of Contents

LAM RESEARCH CORPORATION

TA BLE OF CONTENTS

 

     Page No.  
PART I. Financial Information      3   

Item 1. Financial Statements (Unaudited):

     3  

Consolidated Balance Sheets as of December 29, 2013 and June 30, 2013

     3  

Condensed Consolidated Statements of Operations for the three and six months ended December  29, 2013 and December 23, 2012

     4  

Condensed Consolidated Statements of Comprehensive Income for the three and six months ended December  29, 2013 and December 23, 2012

     5  

Condensed Consolidated Statements of Cash Flows for the six months ended December  29, 2013 and December 23, 2012

     6  

Notes to Condensed Consolidated Financial Statements

     7  

Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations

     25   

Item 3. Quantitative and Qualitative Disclosures about Market Risk

     34   

Item 4. Controls and Procedures

     35   
PART II. Other Information      36   

Item 1. Legal Proceedings

     36   

Item 1A. Risk Factors

     36   

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds

     45   

Item 3. Defaults Upon Senior Securities

     46   

Item 4. Mine Safety Disclosures

     46   

Item 5. Other Information

     46   

Item 6. Exhibits

     46   

Signatures

     47   

Exhibit Index

     48   

 

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Table of Contents

PART I. FINANCIAL INFORMATION

ITEM 1. Financial Statements

LAM RESEARCH CORPORATION

CONSOLIDATED BALANCE SHEETS

(in thousands, except per share data)

 

     December 29,
2013
    June 30,
2013
 
     (unaudited)     (1)  
ASSETS     

Cash and cash equivalents

   $ 1,132,555      $ 1,162,473   

Short-term investments

     1,389,735        1,334,745   

Accounts receivable, less allowance for doubtful accounts of $5,315 as of December 29, 2013 and $5,448 as of June 30, 2013

     909,720        602,624   

Inventories

     661,572        559,317   

Deferred income taxes

     17,095        27,674   

Prepaid expenses and other current assets

     138,359        106,996   
  

 

 

   

 

 

 

Total current assets

     4,249,036        3,793,829   

Property and equipment, net

     546,193        603,910   

Restricted cash and investments

     166,395        166,536   

Goodwill

     1,457,320        1,452,196   

Intangible assets, net

     995,746        1,074,345   

Other assets

     141,108        159,499   
  

 

 

   

 

 

 

Total assets

   $ 7,555,798      $ 7,250,315   
  

 

 

   

 

 

 
LIABILITIES AND STOCKHOLDERS’ EQUITY     

Trade accounts payable

   $ 252,586      $ 200,254   

Accrued expenses and other current liabilities

     529,119        464,528   

Deferred profit

     224,386        225,038   

Current portion of long-term debt, convertible notes, and capital leases

     516,481        514,655   
  

 

 

   

 

 

 

Total current liabilities

     1,522,572        1,404,475   

Long-term debt, convertible notes, and capital leases

     803,276        789,256   

Income taxes payable

     248,996        246,479   

Other long-term liabilities

     129,710        134,313   
  

 

 

   

 

 

 

Total liabilities

     2,704,554        2,574,523   

Commitments and contingencies

    

Senior convertible notes

     185,154        186,920   

Stockholders’ equity:

    

Preferred stock, at par value of $0.001 per share; authorized - 5,000 shares; none outstanding

     —          —     

Common stock, at par value of $0.001 per share; authorized - 400,000 shares; issued and outstanding - 162,169 shares as of December 29, 2013 and 162,873 shares as of June 30, 2013

     162        163   

Additional paid-in capital

     5,153,414        5,084,544   

Treasury stock, at cost; 91,764 shares as of December 29, 2013 and 89,205 shares as of June 30, 2013

     (3,679,151     (3,539,830

Accumulated other comprehensive loss

     (15,521     (28,693

Retained earnings

     3,207,186        2,972,688   
  

 

 

   

 

 

 

Total stockholders’ equity

     4,666,090        4,488,872   
  

 

 

   

 

 

 

Total liabilities and stockholders’ equity

   $ 7,555,798      $ 7,250,315   
  

 

 

   

 

 

 

 

(1) Derived from audited financial statements

See Notes to Condensed Consolidated Financial Statements

 

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Table of Contents

LAM RESEARCH CORPORATION

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS

(in thousands, except per share data)

(unaudited)

 

     Three Months Ended     Six Months Ended  
     December 29,
2013
    December 23,
2012
    December 29,
2013
    December 23,
2012
 

Revenue

   $ 1,116,061      $ 860,886      $ 2,131,120      $ 1,767,774   

Cost of goods sold

     628,272        545,472        1,211,473        1,118,474   
  

 

 

   

 

 

   

 

 

   

 

 

 

Gross margin

     487,789        315,414        919,647        649,300   

Research and development

     174,477        165,951        345,044        329,262   

Selling, general and administrative

     148,838        145,421        304,721        299,284   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total operating expenses

     323,315        311,372        649,765        628,546   
  

 

 

   

 

 

   

 

 

   

 

 

 

Operating income

     164,474        4,042        269,882        20,754   

Other expense, net

     (3,837     (13,390     (18,099     (23,328
  

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) before income taxes

     160,637        (9,348     251,783        (2,574

Income tax expense (benefit)

     11,645        (15,756     17,285        (11,750
  

 

 

   

 

 

   

 

 

   

 

 

 

Net income

   $ 148,992      $ 6,408      $ 234,498      $ 9,176   
  

 

 

   

 

 

   

 

 

   

 

 

 

Net income per share:

        

Basic

   $ 0.92      $ 0.04      $ 1.44      $ 0.05   
  

 

 

   

 

 

   

 

 

   

 

 

 

Diluted

   $ 0.87      $ 0.04      $ 1.37      $ 0.05   
  

 

 

   

 

 

   

 

 

   

 

 

 

Number of shares used in per share calculations:

        

Basic

     162,305        170,699        162,603        175,314   
  

 

 

   

 

 

   

 

 

   

 

 

 

Diluted

     171,757        173,027        171,592        177,490   
  

 

 

   

 

 

   

 

 

   

 

 

 

See Notes to Condensed Consolidated Financial Statements

 

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Table of Contents

LAM RESEARCH CORPORATION

CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME

(in thousands)

(unaudited)

 

     Three Months Ended     Six Months Ended  
     December 29,
2013
    December 23,
2012
    December 29,
2013
    December 23,
2012
 

Net income

   $ 148,992      $ 6,408      $ 234,498      $ 9,176   
  

 

 

   

 

 

   

 

 

   

 

 

 

Other comprehensive income, net of tax:

        

Foreign currency translation adjustment

     6,284        8,969        9,843        4,844   

Cash flow hedges:

        

Net unrealized gains during the period

     4,328        2,347        8,835        1,628   

Net losses (gains) reclassified into earnings

     (3,017     363        (6,819     2,289   
  

 

 

   

 

 

   

 

 

   

 

 

 
     1,311        2,710        2,016        3,917   

Available-for-sale investments:

        

Net unrealized gains (losses) during the period

     386        (1,497     1,073        1,192   

Net gains reclassified into earnings

     (218     (923     (145     (942
  

 

 

   

 

 

   

 

 

   

 

 

 
     168        (2,420     928        250   

Defined benefit plan, net change in unrealized component

     71        164        385        323   
  

 

 

   

 

 

   

 

 

   

 

 

 

Other comprehensive income, net of tax

     7,834        9,423        13,172        9,334   
  

 

 

   

 

 

   

 

 

   

 

 

 

Comprehensive income

   $ 156,826      $ 15,831      $ 247,670      $ 18,510   
  

 

 

   

 

 

   

 

 

   

 

 

 

See Notes to Condensed Consolidated Financial Statements

 

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LAM RESEARCH CORPORATION

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(in thousands)

(unaudited)

 

     Six Months Ended  
     December 29,
2013
    December 23,
2012
 

CASH FLOWS FROM OPERATING ACTIVITIES:

    

Net income

   $ 234,498      $ 9,176   

Adjustments to reconcile net income to net cash provided by operating activities:

    

Depreciation and amortization

     147,883        153,204   

Deferred income taxes

     12,457        (19,337

Impairment of long-lived asset

     7,632        —     

Equity-based compensation expense

     46,281        48,441   

Amortization of convertible note discount

     16,339        15,595   

Other, net

     1,687        25,744   

Changes in operating assets and liabilities

     (285,829     209,665   
  

 

 

   

 

 

 

Net cash provided by operating activities

     180,948        442,488   
  

 

 

   

 

 

 

CASH FLOWS FROM INVESTING ACTIVITIES:

    

Capital expenditures

     (62,101     (82,889

Cash paid for business acquisition

     (18,388     (8,716

Purchases of available-for-sale securities

     (459,290     (628,074

Sales and maturities of available-for-sale securities

     413,103        588,186   

Repayments of notes receivable

     10,000        —     

Proceeds from sale of assets

     21,635        660   

Transfer of restricted cash and investments

     150        179   
  

 

 

   

 

 

 

Net cash used for investing activities

     (94,891     (130,654
  

 

 

   

 

 

 

CASH FLOWS FROM FINANCING ACTIVITIES:

    

Principal payments on long-term debt and capital lease obligations

     (807     (780

Treasury stock purchases

     (152,195     (710,089

Reissuances of treasury stock related to employee stock purchase plan

     15,119        9,925   

Proceeds from issuance of common stock

     21,023        7,534   
  

 

 

   

 

 

 

Net cash used for financing activities

     (116,860     (693,410
  

 

 

   

 

 

 

Effect of exchange rate changes on cash

     885        7,013   

Net decrease in cash and cash equivalents

     (29,918     (374,563

Cash and cash equivalents at beginning of period

     1,162,473        1,564,752   
  

 

 

   

 

 

 

Cash and cash equivalents at end of period

   $ 1,132,555      $ 1,190,189   
  

 

 

   

 

 

 

See Notes to Condensed Consolidated Financial Statements

 

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Table of Contents

LAM RESEARCH CORPORATION

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

December 29, 2013

(Unaudited)

NOTE 1 — BASIS OF PRESENTATION

The accompanying unaudited Condensed Consolidated Financial Statements have been prepared in accordance with U.S. generally accepted accounting principles (“GAAP”) for interim financial information and the instructions to Article 10 of Regulation S-X. Accordingly, they do not include all of the information and footnotes required by GAAP for complete financial statements. In the opinion of management, all adjustments (consisting only of normal recurring adjustments) considered necessary for a fair presentation have been included. The accompanying unaudited Condensed Consolidated Financial Statements should be read in conjunction with the audited Consolidated Financial Statements of Lam Research Corporation (“Lam Research” or the “Company”) for the fiscal year ended June 30, 2013, which are included in the Annual Report on Form 10-K as of and for the year ended June 30, 2013 (the “2013 Form 10-K”). The Company’s Forms 10-K, Forms 10-Q and Forms 8-K are available online at the Securities and Exchange Commission website on the Internet. The address of that site is www.sec.gov . The Company also posts its Forms 10-K, Forms 10-Q and Forms 8-K on its corporate website at http://investor.lamresearch.com .

The consolidated financial statements include the accounts of Lam Research and its wholly owned subsidiaries. All intercompany accounts and transactions have been eliminated in consolidation. The Company’s reporting period is a 52/53-week fiscal year. The Company’s current fiscal year (the “2014 fiscal year”) will end June 29, 2014 and includes 52 weeks. The quarters ended December 29, 2013 (the “December 2013 quarter”) and December 23, 2012 (the “December 2012 quarter”) both included 13 weeks.

NOTE 2 — RECENT ACCOUNTING PRONOUNCEMENTS

In July 2013, the FASB released Accounting Standards Update 2013-11, “Presentation of an Unrecognized Tax Benefit When a Net Operating Loss Carryforward, a Similar Tax Loss, or a Tax Credit Carryforward Exists.” The new standard requires that an unrecognized tax benefit should be presented as a reduction of a deferred tax asset for a net operating loss carryforward or other tax credit carryforward when settlement in this manner is available under the tax law. We are required to adopt this standard starting fiscal year 2015 and are currently in the process of determining the impact, if any, on our financial position.

NOTE 3 — EQUITY-BASED COMPENSATION PLANS

The Company has stock plans that provide for grants of equity-based awards to eligible participants, including stock options and restricted stock units (“RSUs”), of Lam Research common stock (“Common Stock”). An option is a right to purchase the Company’s stock at a set price. An RSU award is an agreement to issue shares of the Company’s stock at the time of vesting. The Company’s options and RSU awards typically vest over a period of three years or less, although awards assumed in connection with the acquisition of Novellus Systems, Inc. (“Novellus”), have vesting terms up to four years. The Company also has an employee stock purchase plan that allows employees to purchase its Common Stock at a discount through payroll deductions.

The Company recognized the following equity-based compensation expense and related income tax benefit in the Condensed Consolidated Statements of Operations:

 

     Three Months Ended      Six Months Ended  
     December 29,
2013
     December 23,
2012
     December 29,
2013
     December 23,
2012
 
     (in millions)  

Equity-based compensation expense

   $ 23.0       $ 24.0       $ 46.3       $ 48.4   

Income tax benefit related to equity-based compensation expense

   $ 3.7       $ 3.3       $ 7.6       $ 9.0   

The estimated fair value of the Company’s stock-based awards, less expected forfeitures, is amortized over the awards’ vesting term on a straight-line basis.

 

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Stock Options and RSUs

The Lam Research Corporation 2007 Stock Incentive Plan and 2011 Stock Incentive Plan (collectively the “Stock Plans”) provide for the grant of non-qualified equity-based awards to eligible employees, consultants and advisors, and non-employee directors of the Company and its subsidiaries. As of December 29, 2013, there was a total of 5,545,356 shares reserved to cover options and RSUs issued and outstanding under the Plans. As of December 29, 2013, there were an additional 13,247,547 shares reserved and available for future equity-based awards under the Plans.

A summary of stock option activity under the Plans as of December 29, 2013 and changes during the six months then ended is presented below:

 

Options

   Shares
(in thousands)
    Weighted-
Average
Exercise Price
     Weighted-Average
Remaining
Contractual Term
(years)
     Aggregate Intrinsic
Value as of

December 29, 2013
(in thousands)
 

Outstanding at June 30, 2013

     2,571      $ 26.87         4.48      

Exercised

     (842   $ 24.98         

Forfeited or expired

     (1   $ 29.71         
  

 

 

         

Outstanding at December 29, 2013

     1,728      $ 27.79         4.88       $ 45,607   
  

 

 

         

Exercisable at December 29, 2013

     1,270      $ 24.17         4.30       $ 38,118   
  

 

 

         

The fair value of the Company’s stock options was estimated using a Black-Scholes option valuation model. The total intrinsic value of options exercised during the three months ended December 29, 2013 and December 23, 2012 was $8.1 million and $4.1 million, respectively. The total intrinsic value of options exercised during the six months ended December 29, 2013 and December 23, 2012 was $22.2 million and $4.7 million, respectively. As of December 29, 2013, there was $4.2 million of total unrecognized compensation cost related to unvested stock options granted and outstanding; that cost is expected to be recognized over a weighted-average remaining vesting period of 1.1 years.

A summary of the Company’s RSUs as of December 29, 2013 and changes during the six months then ended is presented below:

 

Unvested Restricted Stock Units

   Shares
(in thousands)
    Average Grant-
Date Fair Value
 

Unvested at June 30, 2013

     4,842      $ 39.32   

Granted

     127      $ 51.97   

Vested

     (1,014   $ 39.45   

Forfeited

     (138   $ 39.49   
  

 

 

   

Unvested at December 29, 2013

     3,817      $ 39.70   
  

 

 

   

The fair value of the Company’s RSUs was calculated based upon the fair market value of the Common Stock at the date of grant. As of December 29, 2013, there was $90.4 million of total unrecognized compensation expense related to unvested RSUs granted; that expense is expected to be recognized over a weighted-average remaining period of 1.5 years.

ESPP

The 1999 Employee Stock Purchase Plan, as amended and restated (the “1999 ESPP”), allows employees to designate a portion of their base compensation to be withheld through payroll deductions and used to purchase the Company’s Common Stock at a purchase price per share equal to the lower of 85% of the fair market value of the Company’s Common Stock on the first or last day of the applicable purchase period. Each offering period generally lasts up to 12 months and includes up to three interim purchase dates. As of December 29, 2013, there was a total of 9,073,882 shares available for issuance under the 1999 ESPP.

 

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Table of Contents

Purchase rights under the 1999 ESPP were valued using the Black-Scholes option valuation model assuming no expected dividends and the following weighted-average assumptions for the six months ended December 29, 2013:

 

     Six Months Ended
December 29,
2013
 

Expected term (years)

     0.66   

Expected stock price volatility

     31.43

Risk-free interest rate

     0.11

As of December 29, 2013, there was $8.6 million of unrecognized compensation expense related to the 1999 ESPP, which is expected to be recognized over a remaining period of approximately 8 months.

NOTE 4 — FINANCIAL INSTRUMENTS

The Company maintains an investment portfolio of various holdings, types, and maturities. The Company’s mutual funds, which are related to the Company’s obligations under the deferred compensation plan, are classified as trading securities. Investments classified as trading securities are recorded at fair value based upon quoted market prices. Differences between the cost and fair value of trading securities are recognized as other income (expense) in the Condensed Consolidated Statements of Operations. All of the Company’s other short-term investments are classified as available-for-sale and consequently are recorded in the Consolidated Balance Sheets at fair value with unrealized gains or losses reported as a separate component of accumulated other comprehensive income (loss), net of tax.

Fair Value

The Company defines fair value as the price that would be received from selling an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. When determining the fair value measurements for assets and liabilities required or permitted to be recorded at fair value, the Company considers the principal or most advantageous market in which it would transact, and it considers assumptions that market participants would use when pricing the asset or liability.

A fair value hierarchy has been established that prioritizes the inputs to valuation techniques used to measure fair value. The level of an asset or liability in the hierarchy is based on the lowest level of input that is significant to the fair value measurement. Assets and liabilities carried at fair value are classified and disclosed in one of the following three categories:

Level 1: Valuations based on quoted prices in active markets for identical assets or liabilities with sufficient volume and frequency of transactions.

Level 2: Valuations based on observable inputs other than Level 1 prices such as quoted prices for similar assets or liabilities, quoted prices in markets that are not active, or model-derived valuations techniques for which all significant inputs are observable in the market or can be corroborated by observable market data, for substantially the full term of the assets or liabilities.

Level 3: Valuations based on unobservable inputs to the valuation methodology that are significant to the measurement of fair value of assets or liabilities and based on non-binding, broker-provided price quotes and may not have been corroborated by observable market data.

 

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Table of Contents

The following table sets forth the Company’s financial assets and liabilities measured at fair value on a recurring basis at December 29, 2013:

 

            Fair Value Measurement at December 29, 2013  
     Total      Quoted Prices in
Active Markets for
Identical Assets
(Level 1)
     Significant Other
Observable Inputs
(Level 2)
     Significant
Unobservable
Inputs

(Level 3)
 
     (In thousands)  

Assets

           

Short-Term Investments

           

Money Market Funds

   $ 730,194       $ 730,194       $ —         $ —     

Municipal Notes and Bonds

     252,261         —           252,261         —     

US Treasury and Agencies

     175,673         175,673         —           —     

Government-Sponsored Enterprises

     38,399         —           38,399         —     

Foreign Government Bonds

     29,708         —           29,708         —     

Corporate Notes and Bonds

     928,123         164,885         763,238         —     

Mortgage Backed Securities - Residential

     26,941         —           26,941         —     

Mortgage Backed Securities - Commercial

     103,515         —           103,515         —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Total Short-Term Investments

   $ 2,284,814       $ 1,070,752       $ 1,214,062       $ —     

Mutual Funds

     22,324         22,324         —           —     

Derivative Assets

     5,618         —           5,618         —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Total Assets

   $ 2,312,756       $ 1,093,076       $ 1,219,680       $ —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Liabilities

           

Derivative Liabilities

   $ 293       $ —         $ 244       $ 49   
  

 

 

    

 

 

    

 

 

    

 

 

 

The amounts in the table above are reported in the Consolidated Balance Sheet as of December 29, 2013 as follows:

 

Reported Within:    Total      Level 1      Level 2      Level 3  
     (In thousands)  

Cash Equivalents

   $ 730,194       $ 730,194       $ —         $ —     

Short-Term Investments

     1,389,735         175,673         1,214,062         —     

Restricted Cash and Investments

     164,885         164,885         —           —     

Prepaid Expenses and Other Current Assets

     5,618         —           5,618         —     

Other Assets

     22,324         22,324         —           —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Total Assets

   $ 2,312,756       $ 1,093,076       $ 1,219,680       $ —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Accrued Expenses and Other Current Liabilities

   $ 244       $ —         $ 244       $ —     

Other Non-current Liabilities

     49         —           —           49   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total Liabilities

   $ 293       $ —         $ 244       $ 49   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

10


Table of Contents

The following table sets forth the Company’s financial assets and liabilities measured at fair value on a recurring basis at June 30, 2013:

 

            Fair Value Measurement at June 30, 2013  
     Total      Quoted Prices in
Active Markets for
Identical Assets
(Level 1)
     Significant Other
Observable Inputs
(Level 2)
     Significant
Unobservable
Inputs

(Level 3)
 
     (In thousands)  

Assets

           

Short-Term Investments

           

Money Market Funds

   $ 725,311       $ 725,311       $ —         $ —     

Municipal Notes and Bonds

     268,746         —           268,746         —     

US Treasury and Agencies

     155,293         155,293         —           —     

Government-Sponsored Enterprises

     54,805         —           54,805         —     

Foreign Government Bond

     24,972         —           24,972         —     

Corporate Notes and Bonds

     860,492         164,885         695,607         —     

Mortgage Backed Securities - Residential

     27,365         —           27,365         —     

Mortgage Backed Securities - Commercial

     107,958         —           107,958         —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Total Short-Term Investments

   $ 2,224,942       $ 1,045,489       $ 1,179,453       $ —     

Equities

     7,096         7,096         —           —     

Mutual Funds

     18,216         18,216         —           —     

Derivative Assets

     4,929         —           4,929         —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Total Assets

   $ 2,255,183       $ 1,070,801       $ 1,184,382       $ —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Liabilities

           

Derivative Liabilities

   $ 1,815       $ —         $ 1,620       $ 195   
  

 

 

    

 

 

    

 

 

    

 

 

 

The amounts in the table above are reported in the Consolidated Balance Sheet as of June 30, 2013 as follows:

 

Reported Within:    Total      Level 1      Level 2      Level 3  
     (In thousands)  

Cash Equivalents

   $ 725,311       $ 725,311       $ —         $ —     

Short-Term Investments

     1,334,746         155,293         1,179,453         —     

Restricted Cash and Investments

     164,885         164,885         —           —     

Prepaid Expenses and Other Current Assets

     4,929         —           4,929         —     

Other Assets

     25,312         25,312         —           —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Total Assets

   $ 2,255,183       $ 1,070,801       $ 1,184,382       $ —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Accrued Expenses and Other Current Liabilities

   $ 1,620       $ —         $ 1,620       $ —     

Other Non-current Liabilities

     195         —           —           195   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total Liabilities

   $ 1,815       $ —         $ 1,620       $ 195   
  

 

 

    

 

 

    

 

 

    

 

 

 

The Company’s primary financial instruments include its cash, cash equivalents, short-term investments, restricted cash and investments, long-term investments, accounts receivable, accounts payable, long-term debt and capital leases, and foreign currency related derivatives. The estimated fair value of cash, accounts receivable and accounts payable approximates their carrying value due to the short period of time to their maturities. The estimated fair values of capital lease obligations approximate their carrying value as the substantial majority of these obligations have interest rates that adjust to market rates on a periodic basis. Refer to Note 13 for additional information regarding the fair value of the Company’s convertible notes.

 

11


Table of Contents

Investments

The following tables summarize the Company’s investments (in thousands):

 

    December 29, 2013     June 30, 2013  
    Cost     Unrealized
Gain
    Unrealized
(Loss)
    Fair Value     Cost     Unrealized
Gain
    Unrealized
(Loss)
    Fair Value  

Cash

  $ 403,871      $ —        $ —        $ 403,871      $ 438,813      $ —        $ —        $ 438,813   

Fixed Income Money Market Funds

    730,194        —          —          730,194        725,311        —          —          725,311   

Municipal Notes and Bonds

    251,397        911        (47     252,261        268,390        805        (449     268,746   

US Treasury and Agencies

    175,810        29        (166     175,673        155,648        18        (373     155,293   

Government-Sponsored Enterprises

    38,363        53        (17     38,399        54,835        65        (95     54,805   

Foreign Government Bonds

    29,712        59        (63     29,708        24,950        47        (25     24,972   

Corporate Notes and Bonds

    926,954        1,843        (674     928,123        861,109        1,328        (1,945     860,492   

Mortgage Backed Securities - Residential

    27,240        22        (321     26,941        27,618        29        (282     27,365   

Mortgage Backed Securities - Commercial

    103,828        242        (555     103,515        108,204        426        (672     107,958   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total Cash and Short-Term Investments

  $ 2,687,369      $ 3,159      $ (1,843   $ 2,688,685      $ 2,664,878      $ 2,718      $ (3,841   $ 2,663,755   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Publicly Traded Equity Security

  $ —        $ —        $ —        $ —        $ 5,610      $ 1,486      $ —        $ 7,096   

Private Equity Security

    —          —          —          —          5,000        —          —          5,000   

Mutual Funds

    19,575        2,749        —          22,324        16,611        1,619        (14     18,216   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total Financial Instruments

  $ 2,706,944      $ 5,908      $ (1,843   $ 2,711,009      $ 2,692,099      $ 5,823      $ (3,855   $ 2,694,067   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Reported Within

               

Cash and Cash Equivalents

  $ 1,132,555      $ —        $ —        $ 1,132,555      $ 1,162,473      $ —        $ —        $ 1,162,473   

Short-Term Investments

    1,388,419        3,159        (1,843     1,389,735        1,335,868        2,718        (3,841     1,334,745   

Restricted Cash and Investments

    166,395        —          —          166,395        166,536        —          —          166,536   

Other assets

    19,575        2,749        —          22,324        27,222        3,105        (14     30,313   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total

  $ 2,706,944      $ 5,908      $ (1,843   $ 2,711,009      $ 2,692,099      $ 5,823      $ (3,855   $ 2,694,067   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

The Company accounts for its investment portfolio at fair value. Realized gains (losses) for investment sales are specifically identified. Management assesses the fair value of investments in debt securities that are not actively traded through consideration of interest rates and their impact on the present value of the cash flows to be received from the investments. The Company also considers whether changes in the credit ratings of the issuer could impact the assessment of fair value. The Company did not recognize any losses on investments due to other-than-temporary impairments during the three and six months ended December 29, 2013 or December 23, 2012. Additionally, gross realized gains and gross realized (losses) from sales of investments were approximately $0.2 million and $(0.5) million, respectively, in the three months ended December 29, 2013 and $0.9 million and $(0.3) million, respectively, in the three months ended December 23, 2012. Gross realized gains and gross realized (losses) from sales of investments were approximately $0.4 million and $(1.0) million, respectively, in the six months ended December 29, 2013 and $1.1 million and $(0.7) million, respectively, in the six months ended December 23, 2012.

The following is an analysis of the Company’s fixed income securities in unrealized loss positions (in thousands):

 

     December 29, 2013  
     Unrealized Losses
Less Than 12 Months
    Unrealized Losses
12 Months or Greater
    Total  
     Fair Value      Gross
Unrealized
Loss
    Fair Value      Gross
Unrealized
Loss
    Fair Value      Gross
Unrealized
Loss
 

Short-Term Investments

               

Municipal Notes and Bonds

   $ 22,814       $ (47   $ —         $ —        $ 22,814       $ (47

US Treasury and Agencies

     127,143         (166     —           —          127,143         (166

Government-Sponsored Enterprises

     11,466         (17     —           —          11,466         (17

Foreign Government Bonds

     16,906         (63     —           —          16,906         (63

Corporate Notes and Bonds

     260,575         (643     4,709         (31     265,284         (674

Mortgage Backed Securities - Residential

     21,186         (296     2,050         (25     23,236         (321

Mortgage Backed Securities - Commercial

     66,447         (436     5,756         (119     72,203         (555
  

 

 

    

 

 

   

 

 

    

 

 

   

 

 

    

 

 

 

Total Short-Term Investments

   $ 526,537       $ (1,668   $ 12,515       $ (175   $ 539,052       $ (1,843
  

 

 

    

 

 

   

 

 

    

 

 

   

 

 

    

 

 

 

 

12


Table of Contents

The amortized cost and fair value of cash equivalents, short-term investments, and restricted cash and investments with contractual maturities are as follows as of December 29, 2013:

 

     Cost      Estimated Fair
Value
 
     (in thousands)  

Due in one year or less

   $ 1,140,750       $ 1,141,168   

Due after one year through five years

     986,845         988,339   

Due in more than five years

     155,903         155,307   
  

 

 

    

 

 

 
   $ 2,283,498       $ 2,284,814   
  

 

 

    

 

 

 

Management has the ability, if necessary, to liquidate its cash equivalents and short-term investments in order to meet the Company’s liquidity needs in the next 12 months. Accordingly, those investments with contractual maturities greater than one year from the date of purchase nonetheless are classified as short-term on the accompanying Condensed Consolidated Balance Sheets.

Derivative Instruments and Hedging

The Company carries derivative financial instruments (“derivatives”) on its Consolidated Balance Sheets at their fair values. The Company enters into foreign currency forward contracts with financial institutions with the primary objective of reducing volatility of earnings and cash flows related to foreign currency exchange rate fluctuations. The counterparties to these forward contracts are large global financial institutions that the Company believes are creditworthy, and therefore, we do not consider the risk of counterparty nonperformance to be material.

Cash Flow Hedges

The Company’s financial position is routinely subjected to market risk associated with foreign currency exchange rate fluctuations on non-U.S. dollar transactions or cash flows, primarily from Japanese yen-denominated revenues and euro-denominated expenses. The Company’s policy is to mitigate the foreign exchange risk arising from the fluctuations in the value of these non-U.S. dollar denominated transactions or cash flows through a foreign currency cash flow hedging program, using forward contracts that generally expire within 12 months and no later than 24 months. These foreign currency forward contracts are designated as cash flow hedges and are carried on the Company’s balance sheet at fair value with the effective portion of the contracts’ gains or losses included in accumulated other comprehensive income (loss) and subsequently recognized in revenue/expense in the same period the hedged items are recognized.

At inception and at each quarter end, hedges are tested prospectively and retrospectively for effectiveness using regression analysis. Changes in the fair value of the forward contracts due to changes in time value are excluded from the assessment of effectiveness and are recognized in revenue or expense in the current period. The change in time value related to these contracts was not material for all reported periods. To qualify for hedge accounting, the hedge relationship must meet criteria relating both to the derivative instrument and the hedged item. These criteria include identification of the hedging instrument, the hedged item, the nature of the risk being hedged and how the hedging instrument’s effectiveness in offsetting the exposure to changes in the hedged item’s fair value or cash flows will be measured. There were no gains or losses during the three and six months ended December 29, 2013 or December 23, 2012 associated with ineffectiveness or forecasted transactions that failed to occur.

To receive hedge accounting treatment, all hedging relationships are formally documented at the inception of the hedge and the hedges must be tested to demonstrate an expectation of providing highly effective offsetting changes to future cash flows on hedged transactions. When derivative instruments are designated and qualify as effective cash flow hedges, the Company recognizes effective changes in the fair value of the hedging instrument within accumulated other comprehensive income (loss) until the hedged exposure is realized. Consequently, with the exception of excluded time value and hedge ineffectiveness recognized, the Company’s results of operations are not subject to fluctuation as a result of changes in the fair value of the derivative instruments. If hedges are not highly effective or if the Company does not believe that the underlying hedged forecasted transactions will occur, the Company may not be able to account for its derivative instruments as cash flow hedges. If this were to occur, future changes in the fair values of the Company’s derivative instruments would be recognized in earnings. Additionally, related amounts previously recorded in other comprehensive income would be reclassified to income immediately. At December 29, 2013, the Company had gains of $4.8 million accumulated in other comprehensive income, which it expects to reclassify from other comprehensive income into earnings over the next 12 months.

 

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Table of Contents

Balance Sheet Hedges

The Company also enters into foreign currency forward contracts to hedge fluctuations associated with foreign currency denominated monetary assets and liabilities, primarily third party accounts receivables, accounts payables and intercompany receivables and payables. These forward contracts are not designated for hedge accounting treatment. Therefore, the change in fair value of these derivatives is recorded as a component of other income (expense) and offsets the change in fair value of the foreign currency denominated assets and liabilities, which are also recorded in other income (expense).

As of December 29, 2013, the Company had the following outstanding foreign currency forward contracts that were entered into under its cash flow and balance sheet hedge program:

 

     Derivatives Designated as
Hedging Instruments:
     Derivatives Not Designated as
Hedging Instruments:
 
     (in thousands)  
Foreign Currency Forward Contracts                            
     Buy Contracts      Sell Contracts      Buy Contracts      Sell Contracts  

Japanese Yen

   $ —         $ 66,619       $ —         $ 116,339   

Euro

     64,771         —           —           15,271   

Korean Won

     —           —           29,431         —     

Taiwan Dollar

     —           —           139,067         —     
  

 

 

    

 

 

    

 

 

    

 

 

 
   $ 64,771       $ 66,619       $ 168,498       $ 131,610   
  

 

 

    

 

 

    

 

 

    

 

 

 

The fair value of derivative instruments in the Company’s Consolidated Balance Sheets as of December 29, 2013 and June 30, 2013 were as follows:

 

   

December 29, 2013

   

June 30, 2013

 
   

Fair Value of Derivative Instruments

   

Fair Value of Derivative Instruments

 
   

Asset Derivatives

   

Liability Derivatives

   

Asset Derivatives

   

Liability Derivatives

 
   

Balance Sheet
Location

  Fair Value    

Balance Sheet
Location

  Fair Value    

Balance Sheet
Location

  Fair Value    

Balance Sheet
Location

  Fair Value  
   

(in thousands)

 

Derivatives designated as hedging instruments:

               

Foreign exchange forward contracts

  Prepaid expense and other assets   $ 5,585      Accrued liabilities   $ —        Prepaid expense and other assets   $ 4,858      Accrued liabilities   $ 1,577   

Derivatives not designated as hedging instruments:

               

Foreign exchange forward contracts

  Prepaid expense and other assets     33      Accrued liabilities     244      Prepaid expense and other assets     71      Accrued liabilities     43   
   

 

 

     

 

 

     

 

 

     

 

 

 

Total derivatives

    $ 5,618        $ 244        $ 4,929        $ 1,620   
   

 

 

     

 

 

     

 

 

     

 

 

 

Under the master netting agreements with the respective counterparties to the Company’s foreign exchange contracts, subject to applicable requirements, the Company is allowed to net settle transactions of the same currency with a single net amount payable by one party to the other. However, the Company has elected to present the derivative assets and derivative liabilities on a gross basis in its balance sheet. As of December 29, 2013, the potential effect of netting the above foreign exchange contracts would be an offset to both assets and liabilities by $0.2 million, resulting in a net derivative asset of $5.4 million. As of June 30, 2013, the potential effect of netting the above foreign exchange contracts would be an offset to both assets and liabilities by $1.6 million, resulting in a net derivative asset of $3.3 million. The Company is not required to pledge, nor is the Company entitled to receive, cash collateral related to these derivative transactions.

 

14


Table of Contents

The effect of derivative instruments designated as cash flow hedges on the Company’s Consolidated Statements of Operations was as follows:

 

        Three Months Ended
December 29, 2013
    Six Months Ended
December 29, 2013
 
        Effective Portion     Ineffective
Portion and
Amount
Excluded
from
Effectiveness
Testing
    Effective Portion     Ineffective
Portion and
Amount
Excluded
from
Effectiveness
Testing
 
   

Location of Gain

(Loss) Recognized

in or Reclassified

into Income

  Gain
(Loss)
Recognized
in AOCI
    Gain (Loss)
Reclassified
from AOCI
into Income
    Gain (Loss)
Recognized
in Income
    Gain
(Loss)
Recognized
in AOCI
    Gain (Loss)
Reclassified
from AOCI
into Income
    Gain (Loss)
Recognized
in Income
 
Derivatives Designated as Hedging
Instruments
      (in thousands)     (in thousands)  

Foreign Exchange Contracts

 

Revenue

  $ 3,226      $ 2,777      $ 85      $ 8,104      $ 6,159      $ 178   

Foreign Exchange Contracts

 

Cost of goods sold

    1,262        467        (24     1,410        1,118        (56

Foreign Exchange Contracts

  Selling, general, and administrative     506        193        (9     554        510        (24

Foreign Exchange Contracts

 

Other income (expense)

    —          —          —          —          —          —     
   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
    $ 4,994      $ 3,437      $ 52      $ 10,068      $ 7,787      $ 98   
   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

        Three Months Ended
December 23, 2012
    Six Months Ended
December 23, 2012
 
        Effective Portion     Ineffective
Portion and
Amount
Excluded
from
Effectiveness
Testing
    Effective Portion     Ineffective
Portion and
Amount
Excluded
from
Effectiveness
Testing
 
   

Location of Gain

(Loss) Recognized

in or Reclassified

into Income

  Gain
(Loss)
Recognized
in AOCI
    Gain (Loss)
Reclassified
from AOCI
into Income
    Gain (Loss)
Recognized
in Income
    Gain
(Loss)
Recognized
in AOCI
    Gain (Loss)
Reclassified
from AOCI
into Income
    Gain (Loss)
Recognized
in Income
 
Derivatives Designated as Hedging
Instruments
      (in thousands)     (in thousands)  

Foreign Exchange Contracts

 

Revenue

  $ 1,432      $ (133   $ 52      $ (1,294   $ 724      $ 196   

Foreign Exchange Contracts

 

Cost of goods sold

    644        (239     (52     1,895        (2,263     (163

Foreign Exchange Contracts

  Selling, general, and administrative     271        9        (26     1,027        (750     (80

Foreign Exchange Contracts

 

Other income (expense)

    —          —          —          —          —          8   
   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
    $ 2,347      $ (363   $ (26   $ 1,628      $ (2,289   $ (39
   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

The effect of derivative instruments not designated as cash flow hedges on the Company’s Condensed Consolidated Statements of Operations was as follows:

 

        Three Months Ended     Six Months Ended  
        December 29, 2013     December 23, 2012     December 29, 2013     December 23, 2012  
Derivatives Not Designated as
Hedging Instruments:
 

Location of Gain

(Loss) Recognized in Income

  Gain Recognized
in Income
    Loss Recognized
in Income
    Gain Recognized
in Income
    Loss Recognized
in Income
 
        (in thousands)  

Foreign Exchange Contracts

  Other income (expense)   $ 5,012      $ 5,667      $ 11,040      $ 286   

 

15


Table of Contents

Concentrations of Credit Risk

Financial instruments that potentially subject the Company to concentrations of credit risk consist principally of cash and cash equivalents, short-term investments, restricted cash and investments, trade accounts receivable, and derivative financial instruments used in hedging activities. Cash is placed on deposit at large global financial institutions. Such deposits may be in excess of insured limits. Management believes that the financial institutions that hold the Company’s cash are creditworthy and, accordingly, minimal credit risk exists with respect to these balances.

The Company’s overall portfolio of available-for-sale securities must maintain an average minimum rating of “AA-” or “Aa3” as rated by Standard and Poor’s or Moody’s Investor Services, respectively. To ensure diversification and minimize concentration, the Company’s policy limits the amount of credit exposure with any one financial institution or commercial issuer.

The Company is exposed to credit losses in the event of nonperformance by counterparties on the foreign currency forward hedge contracts and on structured share repurchase arrangements. These counterparties are large global financial institutions and, to date, no such counterparty has failed to meet its financial obligations to the Company.

Credit risk evaluations, including trade references, bank references and Dun & Bradstreet ratings, are performed on all new customers and the Company monitors its customers’ financial statements and payment performance. In general, the Company does not require collateral on sales.

NOTE 5 — INVENTORIES

Inventories are stated at the lower of cost (first-in, first-out method) or market. Shipments to Japanese customers, to whom title does not transfer until customer acceptance, are classified as finished goods inventory and carried at cost until title transfers. Inventories consist of the following:

 

     December 29,
2013
     June 30,
2013
 
     (in thousands)  

Raw materials

   $ 413,762       $ 312,484   

Work-in-process

     94,967         101,530   

Finished goods

     152,843         145,303   
  

 

 

    

 

 

 
   $ 661,572       $ 559,317   
  

 

 

    

 

 

 

NOTE 6 — PROPERTY AND EQUIPMENT, NET

Property and equipment, net, consists of the following:

 

     December 29,
2013
    June 30,
2013
 
     (in thousands)  

Manufacturing, engineering and office equipment

   $ 561,623      $ 521,047   

Computer equipment and software

     125,220        120,144   

Land

     56,528        65,360   

Buildings

     205,407        249,126   

Leasehold improvements

     80,501        76,225   

Furniture and fixtures

     24,830        21,110   
  

 

 

   

 

 

 
     1,054,109        1,053,012   

Less: accumulated depreciation and amortization

     (507,916     (449,102
  

 

 

   

 

 

 
   $ 546,193      $ 603,910   
  

 

 

   

 

 

 

During the six months ended December 29, 2013, the Company sold or reclassified to assets held-for-sale property and equipment with a net book value of $69 million as a result of facility consolidation. These assets consisted primarily of buildings and land, resulting in the decreases to those asset categories in the table above.

 

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NOTE 7 — GOODWILL AND INTANGIBLE ASSETS

Goodwill

There was no significant change in the goodwill balance during the six months ended December 29, 2013. Of the $1.5 billion goodwill balance as of December 29, 2013, $61 million is tax deductible and the remaining balance is not tax deductible due to purchase accounting and applicable foreign law.

Goodwill is assessed at least annually for impairment. The Company did not record impairments of goodwill during the three or six months ended December 29, 2013 or December 23, 2012.

Intangible Assets

The following table provides details of the Company’s intangible assets, including the impact of foreign currency translation adjustments, as of December 29, 2013 (in thousands, except years):

 

     Gross      Accumulated
Amortization
    Net      Weighted-Average
Useful Life (years)
 

Customer relationships

   $ 624,902       $ (139,270   $ 485,632         9.01   

Existing technology

     657,273         (185,093     472,180         6.96   

Patents

     32,053         (23,219     8,834         6.09   

Other intangible assets

     35,216         (35,216     —           4.10   
  

 

 

    

 

 

   

 

 

    

Intangible assets subject to amortization

     1,349,444         (382,798     966,646      

In process research and development

     20,000           20,000      

Development rights

     9,100           9,100      
  

 

 

      

 

 

    

Intangible assets not subject to amortization

     29,100           29,100      
  

 

 

    

 

 

   

 

 

    

Total intangible assets

   $ 1,378,544       $ (382,798   $ 995,746      
  

 

 

    

 

 

   

 

 

    

The following table provides details of the Company’s intangible assets, including the impact of foreign currency translation adjustments, as of June 30, 2013 (in thousands, except years):

 

     Gross      Accumulated
Amortization
    Net      Weighted-Average
Useful Life (years)
 

Customer relationships

   $ 624,686       $ (103,519   $ 521,167         9.01   

Existing technology

     653,628         (139,894     513,734         6.97   

Patents

     32,053         (22,036     10,017         6.09   

Backlog

     10,000         (10,000     —           1.00   

Other intangible assets

     35,216         (34,889     327         4.10   
  

 

 

    

 

 

   

 

 

    

Intangible assets subject to amortization

     1,355,583         (310,338     1,045,245      

In process research and development

     20,000           20,000      

Development rights

     9,100           9,100      
  

 

 

      

 

 

    

Intangible assets not subject to amortization

     29,100           29,100      
  

 

 

    

 

 

   

 

 

    

Total intangible assets

   $ 1,384,683       $ (310,338   $ 1,074,345      
  

 

 

    

 

 

   

 

 

    

The Company recognized $40.9 million and $44.7 million in intangible asset amortization expense during the three months ended December 29, 2013 and December 23, 2012, respectively. The Company recognized $82.5 million and $89.3 million in intangible asset amortization expense during the six months ended December 29, 2013 and December 23, 2012, respectively.

 

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The estimated future amortization expense of purchased intangible assets as of December 29, 2013 is as follows (in thousands):

 

Fiscal Year

   Amount  

2014 (6 months)

   $ 80,250   

2015

     159,718   

2016

     157,510   

2017

     155,790   

2018

     154,625   

Thereafter

     258,753   
  

 

 

 
   $ 966,646   
  

 

 

 

NOTE 8 — ACCRUED EXPENSES AND OTHER CURRENT LIABILITIES

Accrued expenses and other current liabilities consist of the following:

 

     December 29,
2013
     June 30,
2013
 
     (in thousands)  

Accrued compensation

   $ 308,628       $ 254,795   

Warranty reserves

     66,338         52,252   

Income and other taxes payable

     38,716         39,420   

Other

     115,437         118,061   
  

 

 

    

 

 

 
   $ 529,119       $ 464,528   
  

 

 

    

 

 

 

NOTE 9 — OTHER EXPENSE, NET

The significant components of other expense, net, are as follows:

 

     Three Months Ended     Six Months Ended  
     December 29,
2013
    December 23,
2012
    December 29,
2013
    December 23,
2012
 
     (in thousands)  

Interest income

   $ 2,828      $ 4,376      $ 5,551      $ 8,176   

Interest expense

     (15,297     (14,975     (30,599     (30,119

Gains on deferred compensation plan related assets

     5,360        1,234        5,397        3,975   

Foreign exchange gains (losses)

     125        (3,274     (97     (3,642

Other, net

     3,147        (751     1,649        (1,718
  

 

 

   

 

 

   

 

 

   

 

 

 
   $ (3,837   $ (13,390   $ (18,099   $ (23,328
  

 

 

   

 

 

   

 

 

   

 

 

 

NOTE 10 — INCOME TAX EXPENSE

The Company recorded an income tax expense of $11.6 million and $17.3 million for the three and six months ended December 29, 2013, respectively, which yielded an effective tax rate for the three and six months ended December 29, 2013 of approximately 7.2% and 6.9%, respectively. The difference between the U.S. federal statutory tax rate of 35% and the Company’s effective tax rate for the three and six months ended December 29, 2013 is primarily due to the geographic mix of income, the tax effect of non-deductible stock-based compensation, and the recognition of previously unrecognized tax benefits due to lapse of statutes of limitation.

 

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Table of Contents

NOTE 11 — NET INCOME PER SHARE

Basic net income per share is computed by dividing net income by the weighted-average number of common shares outstanding during the period. Diluted net income per share is computed using the treasury stock method, for dilutive stock options, RSUs, and convertible notes. Dilutive shares outstanding include only the effect of the 2041 Notes. The following table reconciles the numerators and denominators of the basic and diluted computations for net income per share.

 

    Three Months Ended     Six Months Ended  
    December 29,
2013
    December 23,
2012
    December 29,
2013
    December 23,
2012
 
    (in thousands, except per share data)  

Numerator:

       

Net income

  $ 148,992      $ 6,408      $ 234,498      $ 9,176   
 

 

 

   

 

 

   

 

 

   

 

 

 

Denominator:

       

Basic average shares outstanding

    162,305        170,699        162,603        175,314   

Effect of potential dilutive securities:

       

Employee stock plans

    2,847        2,328        2,869        2,176   

Convertible notes

    6,605        —          6,120        —     
 

 

 

   

 

 

   

 

 

   

 

 

 

Diluted average shares outstanding

    171,757        173,027        171,592        177,490   
 

 

 

   

 

 

   

 

 

   

 

 

 

Net income per share - basic

  $ 0.92      $ 0.04      $ 1.44      $ 0.05   
 

 

 

   

 

 

   

 

 

   

 

 

 

Net income per share - diluted

  $ 0.87      $ 0.04      $ 1.37      $ 0.05   
 

 

 

   

 

 

   

 

 

   

 

 

 

For purposes of computing diluted net income per share, weighted-average common shares do not include potentially dilutive securities that are anti-dilutive under the treasury stock method. The following potentially dilutive securities were excluded:

 

    Three Months Ended     Six Months Ended  
    December 29,
2013
    December 23,
2012
    December 29,
2013
    December 23,
2012
 
    (in thousands)  

Number of potential dilutive securities excluded

    —          1,543        296        1,551   
 

 

 

   

 

 

   

 

 

   

 

 

 

Diluted shares outstanding do not include any effect resulting from warrants, assumed conversion of the notes, or note hedges associated with the Company’s 2016 or 2018 Notes (as described in Note 13) as their impact would have been anti-dilutive.

NOTE 12 — ACCUMULATED OTHER COMPREHENSIVE LOSS

The components of accumulated other comprehensive income (loss), net of tax at the end of the period, as well as the activity during the period, were as follows:

 

    Accumulated foreign
currency translation
adjustment
    Accumulated unrealized
holding gain (loss) on
cash flow hedges
    Accumulated unrealized
holding gain (loss) on
available-for-sale
investments
    Accumulated unrealized
components of defined
benefit plans
    Total  
    (in thousands)  

Balance as of June 30, 2013

  $ (17,178   $ 2,822      $ (15   $ (14,322   $ (28,693

Other comprehensive income before reclassifications

    9,843        8,835        1,073        385        20,136   

Gains reclassified from accumulated other comprehensive income to net income

    —          (6,819 )  (1)       (145 )  (2)       —          (6,964
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net current-period other comprehensive income

  $ 9,843      $ 2,016      $ 928      $ 385      $ 13,172   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of December 29, 2013

  $ (7,335   $ 4,838      $ 913      $ (13,937   $ (15,521
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

(1) Amount of after tax gain reclassified from accumulated other comprehensive income into net income located in revenue: $5,484, cost of goods sold: $953 and selling, general and administrative expenses: $382.
(2) Amount of after tax gain reclassified from accumulated other comprehensive income into net income located in other expense, net

 

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NOTE 13 — LONG-TERM DEBT

The following table reflects the carrying value of the Company’s convertible senior notes and other long-term debt as of December 29, 2013 and June 30, 2013:

 

     December 29,
2013
    June 30,
2013
 
     (in millions)  

0.50% Notes due 2016

   $ 450.0      $ 450.0   

Less: Unamortized interest discount

     (38.2     (45.7
  

 

 

   

 

 

 

Net carrying amount of 0.50% Notes due 2016

     411.8        404.3   
  

 

 

   

 

 

 

1.25% Notes due 2018

     450.0        450.0   

Less: Unamortized interest discount

     (69.9     (76.9
  

 

 

   

 

 

 

Net carrying amount of 1.25% Notes due 2018

     380.1        373.1   
  

 

 

   

 

 

 

2.625% Notes due 2041

     699.9        699.9   

Less: Unamortized interest discount

     (185.1     (186.9
  

 

 

   

 

 

 

Net carrying amount of 2.625% Notes due 2041

     514.8        513.0   
  

 

 

   

 

 

 
    
  

 

 

   

 

 

 

Total debt

     1,306.7        1,290.4   
  

 

 

   

 

 

 

Less: current portion of debt

     (514.8     (513.0
  

 

 

   

 

 

 

Long-term debt

   $ 791.9      $ 777.4   
  

 

 

   

 

 

 

Convertible Senior Notes

In May 2011, the Company issued and sold $450.0 million in aggregate principal amount of 0.50% Convertible Senior Notes due May 2016 (the “2016 Notes”) at par. At the same time, the Company issued and sold $450.0 million in aggregate principal amount of 1.25% Convertible Senior Notes due May 2018 (the “2018 Notes”) at par. The 2016 Notes and the 2018 Notes may be converted, under certain circumstances, based on an initial conversion rate of 15.8687 shares of Common Stock per $1,000 principal amount of notes (which represents an initial conversion price of approximately $63.02 per share of Common Stock).The net proceeds to the Company from the sale of the 2016 Notes and the 2018 Notes were $835.5 million. The Company pays cash interest at an annual rate of 0.5% and 1.25%, respectively, on the 2016 Notes and the 2018 Notes, on a semi-annual basis on May 15 and November 15 of each year.

In June 2012, with the acquisition of Novellus, the Company assumed $700.0 million in aggregate principal amount of 2.625% Convertible Senior Notes due May 2041 (the “2041 Notes,” and collectively with the 2016 Notes and the 2018 Notes, the “Notes”). The 2041 Notes may be converted, under certain circumstances, based on an initial conversion rate of 28.4781 shares of Common Stock per $1,000 principal amount of notes (which represents an initial conversion price of approximately $35.11 per share of Common Stock). The Company pays cash interest at an annual rate of 2.625%, on a semi-annual basis on May 15 and November 15 of each year. The 2041 Notes also have a contingent interest payment provision that may require the Company to pay additional interest based on certain thresholds, beginning with the semi-annual interest payment commencing on May 15, 2021, and upon the occurrence of certain events, as outlined in the indenture governing the 2041 Notes. The maximum amount of the contingent interest will accrue at a rate of 2.1% per annum, excluding any potential impact from dividends deemed payable to holders of the 2041 Notes. The contingent interest payment provision has been identified as an embedded derivative, to be accounted for separately, and is recorded at fair value at the end of each reporting period in other non-current liabilities, with any gains and losses recorded in interest expense, within the Condensed Consolidated Statements of Operations.

 

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Table of Contents

The Company separately accounts for the liability and equity components of the Notes. The initial debt components of the 2016 Notes, the 2018 Notes, and the 2041 Notes were valued at $373.8 million, $345.1 million, and $509.5 million, respectively, based on the present value of the future cash flows using discount rates of 4.29%, 5.27%, and 4.28%, respectively, the Company’s borrowing rate at the date of the issuance or assumption for similar debt instruments without the conversion feature. The carrying values of the equity components of the 2016 Notes, the 2018 Notes, and the 2041 Notes were $76.2 million, $104.9 million, and $328.1 million, respectively as of December 29, 2013. The effective interest rates on the liability components of the 2016 Notes, the 2018 Notes, and the 2041 Notes for the three and six months ended December 29, 2013 were 4.29%, 5.27%, and 4.28%, respectively. The following table presents the amount of interest cost recognized relating to both the contractual interest coupon and amortization of the discount on the liability component of the Notes during the three and six months ended December 29, 2013 and December 23, 2012.

 

     Three Months Ended      Six Months Ended  
     December 29,      December 23,      December 29,      December 23,  
     2013      2012      2013      2012  
     (in millions)  

Contractual interest coupon

   $ 6.6       $ 6.6         13.1         13.1   

Amortization of interest discount

     8.2         7.8         16.3         15.6   

Amortization of issuance costs

     0.6         0.6         1.2         1.2   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total interest cost recognized

   $ 15.4       $ 15.0       $ 30.6       $ 29.9   
  

 

 

    

 

 

    

 

 

    

 

 

 

The remaining bond discount of the 2016 Notes, the 2018 Notes, and the 2041 Notes of $38.2 million, $69.9 million, and $185.1 million, respectively, as of December 29, 2013 will be amortized over their respective remaining lives of approximately 2.4 years, 4.4 years, and 27.4 years. As of December 29, 2013, the if-converted value of the 2016 Notes and 2018 Notes did not exceed the aggregate principal amount. As of December 29, 2013, the if-converted value of the 2041 Notes exceeded the aggregate principal amount by $380 million.

Convertible Note Hedges and Warrants

Concurrently with the issuance of the 2016 Notes and the 2018 Notes, the Company purchased convertible note hedges and sold warrants. The separate convertible note hedge and warrant transactions are collectively structured to reduce the potential future economic dilution associated with the conversion of the 2016 Notes and the 2018 Notes and to increase the effective initial conversion price to $71.34 and $76.10 per share, respectively. Each of these components is discussed below.

Concurrent with the issuance of the 2016 Notes, the Company sold warrants to purchase up to approximately 7.1 million shares of Common Stock at an exercise price of $71.34 per share. The warrants expire on a series of dates between August 15, 2016 and October 21, 2016. At expiration, the Company may, at its option, elect to settle the warrants on a net share basis. As of December 29, 2013, the warrants had not been exercised and remained outstanding. In addition, counterparties agreed to sell to the Company up to approximately 7.1 million shares of the Company’s common stock, which is the number of shares initially issuable upon conversion of the 2016 Notes in full, at a price of $63.02 per share. The convertible note hedge transaction will be settled in net shares and will terminate upon the earlier of the maturity date of the 2016 Notes or the first day none of the 2016 Notes remains outstanding due to conversion or otherwise. Settlement of the convertible note hedge in net shares, based on the number of shares issued upon conversion of the 2016 Notes, on the expiration date would result in the Company receiving net shares equivalent to the number of shares issuable by the Company upon conversion of the 2016 Notes.

Concurrent with the issuance of the 2018 Notes, the Company sold warrants to purchase up to approximately 7.1 million shares of Common Stock at an exercise price of $76.10 per share. The warrants expire on a series of dates between August 15, 2018 and October 23, 2018. At expiration, the Company may, at its option, elect to settle the warrants on a net share basis. As of December 29, 2013, the warrants had not been exercised and remained outstanding. In addition, counterparties agreed to sell to the Company up to approximately 7.1 million shares of the Company’s common stock, which is the number of shares initially issuable upon conversion of the 2018 Notes in full, at a price of $63.02 per share. The convertible note hedge transaction will be settled in net shares and will terminate upon the earlier of the maturity date of the 2018 Notes or the first day none of the 2018 Notes remains outstanding due to conversion or otherwise. Settlement of the convertible note hedge in net shares, based on the number of shares issued upon conversion of the 2018 Notes, on the expiration date would result in the Company receiving net shares equivalent to the number of shares issuable by the Company upon conversion of the 2018 Notes.

 

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Table of Contents

Conversion Period

During the fiscal quarters ended June 30, 2013 and December 29, 2013 the Company’s common stock for 20 or more trading days of the 30 consecutive trading days preceding the quarter end was greater than or equal to 130% of the 2041 Note conversion price. As a result, the 2041 Notes became convertible at the option of the holder anytime during the fiscal quarters ending December 29, 2013 and March 30, 2014 (the “March 2014 quarter”). However, there were no conversions of the 2041 Notes during the December 2013 quarter or the March 2014 quarter as of February 6, 2014.

As a result of the open conversion period, the carrying amount of the 2041 Notes was classified in current liabilities in the Company’s Consolidated Balance Sheets as of December 29, 2013 and June 30, 2013. The excess of the amount of cash payable, if converted, over the carrying amount of the 2041 Notes was classified as temporary equity as of December 29, 2013 and June 30, 2013. Upon closure of a conversion period, all 2041 Notes not converted will be reclassified back to noncurrent liabilities and the temporary equity is reclassified to permanent equity.

Fair Value of Notes

As of December 29, 2013, the face values of the 2016 Notes, the 2018 Notes, and the 2041 Notes were $450.0 million, $450.0 million, and $699.9 million, respectively. As of December 29, 2013, the fair values of the 2016 Notes, the 2018 Notes, and the 2041 Notes, which includes the debt and equity components, were approximately $508.5 million, $544.5 million, and $1,161.9 million, respectively, based on quoted market prices (Level 1 inputs within the fair value hierarchy).

NOTE 14 — COMMITMENTS

Operating Leases and Related Guarantees

The Company leases certain of its administrative, R&D and manufacturing facilities, regional sales/service offices and certain equipment under non-cancelable operating leases. Certain of the Company’s facility leases for buildings located at its Fremont, California headquarters and certain other facility leases provide the Company with options to extend the leases for additional periods or to purchase the facilities. Certain of the Company’s facility leases provide for periodic rent increases based on the general rate of inflation.

On December 18, 2007, the Company entered into two operating leases regarding certain improved properties in Livermore, California. These leases were amended on April 3, 2008 and July 9, 2008 (as so amended, the “Livermore Leases”). On December 21, 2007, the Company entered into a series of four amended and restated operating leases (the “New Fremont Leases,” and collectively with the Livermore Leases, the “Operating Leases”) with regard to certain improved properties at the Company’s headquarters in Fremont, California.

The Operating Leases have a term of approximately seven years ending on the first business day in January 2015. The Company may, at its discretion and with 30 days’ notice, elect to purchase the property that is the subject of the Operating Leases for an amount approximating the sum required to pay the amount of the lessor’s investment in the property and any accrued but unpaid rent.

The Company is required, pursuant to the terms of the Operating Leases, to maintain collateral in an aggregate of approximately $164.9 million in separate interest-bearing accounts as security for the Company’s obligations under the Operating Leases. This amount is recorded as restricted cash in the Company’s Consolidated Balance Sheet as of December 29, 2013.

When the terms of the Operating Leases expire, the property subject to those Operating Leases may be remarketed. The Company has guaranteed to the lessor that each property will have a certain minimum residual value. The aggregate guarantee made by the Company under the Operating Leases is generally no more than approximately $141.7 million; however, under certain default circumstances, the guarantee with regard to an Operating Lease may be 100% of the lessor’s aggregate investment in the applicable property, which in no case will exceed $164.9 million, in the aggregate.

In prior fiscal years, the Company recognized aggregate restructuring charges of $26.7 million related to the reassessment of the residual value guarantee for such lease. This amount has been recorded in other long-term liabilities as of December 29, 2013.

 

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Subsequent to December 29, 2013, the Company entered into a series of six amended operating leases (the “Amended Operating Leases”) regarding the Livermore, California, and Fremont, California properties noted above. As a result of the Company’s entry into the Amended Operating Leases, all lease balances under the existing Operating Leases were paid and the Company’s obligations under those leases were terminated. Each Amended Operating Lease has a seven-year term ending on December 31, 2020. Scheduled rent payments under the Amended Operating Leases during the aggregate lease term are estimated to be approximately $43.8 million.

During the term of an Amended Operating Lease and upon expiration of the term of an Amended Operating Lease, the property subject to that lease may be remarketed. The Company has guaranteed to the lessor that each property will have a certain minimum residual value. The aggregate guarantee made by the Company under the Amended Operating Leases is generally no more than approximately $191.2 million. However, under certain default circumstances, the guarantee with regard to an Amended Operating Lease may be 100% of the lessor’s investment in the applicable property; in the aggregate, the amounts payable under such guarantees will be no more than $220.0 million plus related indemnification or other obligations.

Other Guarantees

The Company has issued certain indemnifications to its lessors for taxes and general liability under some of its agreements. The Company has entered into certain insurance contracts that may limit its exposure to such indemnifications. As of December 29, 2013, the Company had not recorded any liability in connection with these indemnifications, as it does not believe, based on information available, that it is probable that any amounts will be paid under these guarantees.

Generally, the Company indemnifies, under pre-determined conditions and limitations, its customers for infringement of third-party intellectual property rights by the Company’s products or services. The Company seeks to limit its liability for such indemnity to an amount not to exceed the sales price of the products or services subject to its indemnification obligations. The Company does not believe, based on information available, that it is probable that any material amounts will be paid under these guarantees.

The Company provides guarantees and standby letters of credit to certain parties as required for certain transactions initiated during the ordinary course of business. As of December 29, 2013, the maximum potential amount of future payments that we could be required to make under these arrangements and letters of credit was $21.6 million. We do not believe, based on historical experience and information currently available, that it is probable that any amounts will be required to be paid.

Warranties

The Company provides standard warranties on its systems. The liability amount is based on actual historical warranty spending activity by type of system, customer, and geographic region, modified for any known differences such as the impact of system reliability improvements.

Changes in the Company’s product warranty reserves were as follows:

 

     Three Months Ended     Six Months Ended  
     December 29,
2013
    December 23,
2012
    December 29,
2013
    December 23,
2012
 
     (in thousands)  

Balance at beginning of period

   $ 59,871      $ 67,836      $ 58,078      $ 70,161   

Warranties issued during the period

     25,546        14,856        42,299        34,548   

Settlements made during the period

     (18,967     (21,484     (33,272     (45,859

Changes in liability for pre-existing warranties

     963        1,714        308        4,072   
  

 

 

   

 

 

   

 

 

   

 

 

 

Balance at end of period

   $ 67,413      $ 62,922      $ 67,413      $ 62,922   
  

 

 

   

 

 

   

 

 

   

 

 

 

NOTE 15 — RESTRUCTURING AND IMPAIRMENTS

From time to time, Lam initiates restructuring activities to appropriately align its cost structure relative to prevailing economic and industry conditions and associated customer demand as well as in connection with certain acquisitions. Costs associated with restructuring actions can include termination benefits and related charges in addition to facility closure, contract termination and other related activities.

Accounting for restructuring activities, as compared to regular operating cost management activities, requires an evaluation of formally committed and approved plans. Restructuring activities have comparatively greater strategic significance and materiality and may involve exit activities, whereas regular cost containment activities are more tactical in nature and are rarely characterized by formal and integrated action plans or exiting a particular product, facility, or service.

 

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Table of Contents

March 2009 Plan

Beginning in the March 2009 quarter, the Company incurred restructuring expenses designed to align the Company’s cost structure with its outlook for the economic environment and business opportunities. The remaining liability under this plan of $26.7 million relates to the residual value guarantee under certain of the Company’s unoccupied operating leases. See Note 14 to the Condensed Consolidated Financial Statements for additional information regarding residual value guarantees.

Acquired Restructuring Liabilities

In addition to restructuring plans initiated by the Company, a restructuring liability related to future rent obligations on unoccupied facilities was assumed in the Novellus acquisition. The associated liability balance of $11.4 million, as of December 29, 2013, is expected to be paid by the end of fiscal year 2017.

NOTE 16 — STOCK REPURCHASE PROGRAM

On April 22, 2013, the Board of Directors authorized the repurchase of up to $250 million of Common Stock. These repurchases can be conducted on the open market or as private purchases and may include the use of derivative contracts with large financial institutions, in all cases subject to compliance with applicable law. Repurchases will be funded using the Company’s on-shore cash and on-shore cash generation. This repurchase program has no termination date and may be suspended or discontinued at any time.

Repurchases under the repurchase program were as follows during the periods indicated:

 

Period

  Total Number of
Shares Repurchased
    Total Cost of
Repurchase
    Average Price Paid
Per Share*
    Amount Available
Under Repurchase
Program
 
    (in thousands, except per share data)  

Available balance as of June 30, 2013

        $ 250,000   

Quarter ended September 29, 2013

    1,935      $ 96,462      $ 48.06      $ 153,538   

Quarter ended December 29, 2013

    762      $ 39,800      $ 52.20      $ 113,738   

 

* Average price paid per share excludes accelerated share repurchases for which cost was incurred during the September 2013 quarter, but that did not settle until the December 2013 quarter. See Collared Accelerated Share Repurchases section below for details regarding average price associated with these transactions.

In addition to shares repurchased under the Board-authorized repurchase program shown above, during the six months ended December 29, 2013, the Company acquired 204,000 shares at a total cost of $10.6 million, which the Company withheld through net share settlements to cover minimum tax withholding obligations upon the vesting of restricted stock unit awards granted under the Company’s equity compensation plans. The shares retained by the Company through these net share settlements are not a part of the Board-authorized repurchase program but instead are authorized under the Company’s equity compensation plans.

As part of its share repurchase program, the Company may from time-to-time enter into structured share repurchase arrangements with financial institutions using general corporate funds. Such arrangements entered into or settled during the six months ended December 29, 2013 included the following:

Collared Accelerated Share Repurchases

During the three months ended September 29, 2013, the Company entered into a collared accelerated share repurchase (“ASR”) transaction under a master repurchase arrangement. Under the ASR, the Company made an up-front cash payment of $75 million, in exchange for an initial delivery of 1.2 million shares of its Common Stock and a subsequent delivery of 0.3 million shares following the initial hedge period.

The number of shares to ultimately be repurchased by the Company is based generally on the volume-weighted average price (“VWAP”) of the Common Stock during the term of the ASR minus a pre-determined discount set at inception of the ASR, subject to collar provisions that provide a minimum and maximum number of shares that the Company could repurchase under the agreements. The minimum and maximum thresholds for the transaction were established based on the average of the VWAP prices for the Common Stock during an initial hedge period. The ASR was scheduled to end at any time after September 27, 2013 and on or before November 27, 2013. At the conclusion of the ASR, the Company may receive additional shares based on the VWAP of the Common Stock during the term of the agreement minus the pre-determined fixed discount, however, the total number of shares received under the ASR would not exceed the maximum of 1.7 million shares.

 

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The counterparty designated October 28, 2013 as the termination date, at which time the Company settled the ASR. No additional shares were received at final settlement, which represented a weighted-average share price of approximately $50.40 for the transaction period.

The Company accounted for the ASR as two separate transactions: (a) as shares of common stock acquired in a treasury stock transaction recorded on the acquisition date and (b) as a forward contract indexed to the Company’s own common stock and classified in stockholders’ equity. As such, the Company accounted for the shares that it received under the ASR as a repurchase of its Common Stock for the purpose of calculating earnings per common share. The Company has determined that the forward contract indexed to the Common Stock met all of the applicable criteria for equity classification in accordance with the Derivatives and Hedging topic of the FASB Accounting Standards Codification, and, therefore, the ASR was not accounted for as a derivative instrument. As of December 29, 2013, the aggregate repurchase price of $75 million was reflected as Treasury stock, at cost, in the Consolidated Balance Sheet.

NOTE 17 — LEGAL PROCEEDINGS

The Company is either a defendant or plaintiff in various actions that have arisen from time to time in the normal course of business, including intellectual property claims. The Company accrues for a liability when it is both probable that a liability has been incurred and the amount of the loss can be reasonably estimated. Significant judgment is required in both the determination of probability and the determination as to whether a loss is reasonably estimable. To the extent there is a reasonable possibility that the losses could exceed the amounts already accrued, the Company believes that the amount of any such additional loss would be immaterial to the Company’s business, financial condition, and results of operations.

 

ITEM 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations

CAUTIONARY STATEMENT REGARDING FORWARD LOOKING STATEMENTS

With the exception of historical facts, the statements contained in this discussion are forward-looking statements, which are subject to the safe harbor provisions created by the Private Securities Litigation Reform Act of 1995. Certain, but not all, of the forward-looking statements in this report are specifically identified as forward-looking, by use of phrases and words such as “we believe,” “we anticipate,” “we expect,” “may,” “should,” “could” and other future-oriented terms. The identification of certain statements as “forward-looking” is not intended to mean that other statements not specifically identified are not forward-looking. Forward-looking statements include, but are not limited to, statements that relate to: trends in the global economic environment and the semiconductor industry; the anticipated levels of, and rates of change in, future shipments, margins, market share, capital expenditures, revenue and operating expenses generally; management’s plans and objectives for our current and future operations and business focus; volatility in our quarterly results; customer requirements and our ability to satisfy those requirements; customer capital spending and their demand for our products, and the reliability of indicators of change in customer spending and demand; our ability to defend our market share and to gain new market share; factors that affect our tax rates; anticipated growth in the industry and the total market for wafer-fabrication equipment and our growth relative to such growth; levels of research and development (“R&D”) expenditures; outsourced activities; the estimates we make, and the accruals we record, in order to implement our critical accounting policies (including but not limited to the adequacy of prior tax payments, future tax liabilities and the adequacy of our accruals relating to them); our access to capital markets; our ability to manage and grow our cash position; and the sufficiency of our financial resources to support future business activities (including but not limited to operations, investments, debt service requirements and capital expenditures). Such statements are based on current expectations and are subject to risks, uncertainties, and changes in condition, significance, value, and effect, including without limitation those discussed below under the heading “Risk Factors” within Part II Item 1A and elsewhere in this report and other documents we file from time to time with the Securities and Exchange Commission (“SEC”), such as our annual report on Form 10-K for the year ended June 30, 2013 (our “2013 Form 10-K”) and our current reports on Form 8-K. Such risks, uncertainties and changes in condition, significance, value, and effect could cause our actual results to differ materially from those expressed in this report and in ways not readily foreseeable. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date hereof and are based on information currently and reasonably known to us. We do not undertake any obligation to release the results of any revisions to these forward-looking statements, which may be made to reflect events or circumstances that occur after the date of this report or to reflect the occurrence or effect of anticipated or unanticipated events.

 

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Documents To Review In Connection With Management’s Discussion and Analysis Of Financial Condition and Results Of Operations

For a full understanding of our financial position and results of operations for the three and six months ended December 29, 2013, and the related Management’s Discussion and Analysis of Financial Condition and Results of Operations below, you should also read the Condensed Consolidated Financial Statements and notes presented in this Form 10-Q and the financial statements and notes in our 2013 Form 10-K.

Overview

Management’s Discussion and Analysis of Financial Condition and Results of Operations consist of the following sections:

Executive Summary provides an overview of the Company’s operations and a summary of certain highlights of our results of operations

Results of Operations provides an analysis of operating results

Critical Accounting Policies and Estimates discusses accounting policies that reflect the more significant judgments and estimates we use to prepare our Condensed Consolidated Financial Statements

Liquidity and Capital Resources provides an analysis of cash flows and financial position

EXECUTIVE SUMMARY

We design, manufacture, market, refurbish, and service semiconductor processing equipment used in the fabrication of integrated circuits and are recognized as a major provider of such equipment to the worldwide semiconductor industry. Our customers include semiconductor manufacturers that make memory, microprocessors, and other logic integrated circuits for a wide range of consumer and industrial electronics. Semiconductor wafers are subjected to a complex series of process and preparation steps that result in the simultaneous creation of many individual integrated circuits. We leverage our expertise in semiconductor processing to develop technology and productivity solutions that typically benefit our customers through lower defect rates, enhanced yields, faster processing time, and reduced cost as well as by facilitating their ability to meet more stringent performance and design standards.

The semiconductor capital equipment industry has been highly competitive and subject to business cycles that historically have been characterized by rapid changes in demand. The variability in our customers’ investments during any particular period is dependent on several factors including but not limited to electronics demand, economic conditions (both general and in the semiconductor and electronics industries), industry supply and demand, prices for semiconductors, and our customers’ ability to develop and manufacture increasingly complex and costly semiconductor devices. More recently, customer consolidation and the timing and scope of customer spending at industry inflection points have led to higher levels of variability quarter-to-quarter. Demand for our equipment can vary significantly from period to period as a result of these factors and our ability to develop, acquire, and market competitive products. For these and other reasons, our results of operations during any particular period are not necessarily indicative of future operating results.

The following table summarizes certain key financial information for the periods indicated below (in thousands, except percentage and per share data):

 

     Three Months Ended  
     December 29,
2013
    September 29,
2013
    December 23,
2012
 

Revenue

   $ 1,116,061      $ 1,015,059      $ 860,886   

Gross margin

   $ 487,789      $ 431,858      $ 315,414   

Gross margin as a percentage of revenue

     43.7     42.5     36.6

Total operating expenses

   $ 323,315      $ 326,450      $ 311,372   

Net income

   $ 148,992      $ 85,506      $ 6,408   

Diluted net income per share

   $ 0.87      $ 0.50      $ 0.04   

 

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In the December 2013 quarter, revenue increased compared to the quarter ended September 29, 2013 (the “September 2013 quarter”), reflecting increased investments by our customers. Gross margin as a percentage of revenues increased as compared to the September 2013 quarter due to a more favorable business mix combined with factory and manufacturing savings including integration cost synergies. Operating expenses in the December 2013 quarter remained relatively flat as compared to the September 2013 quarter.

Our cash and cash equivalents, short-term investments, and restricted cash and investments balances totaled approximately $2.7 billion as of December 29, 2013 compared to $2.6 billion as of September 29, 2013. Cash generated by operations was approximately $129 million during the December 2013 quarter. We used cash during the December 2013 quarter to repurchase $48 million of our shares and purchase $38 million of property and equipment. Employee headcount increased slightly as of December 29, 2013 as compared to September 29, 2013 to approximately 6,550 people.

RESULTS OF OPERATIONS

Shipments

 

     Three Months Ended  
     December 29,
2013
    September 29,
2013
    December 23,
2012
 

Shipments (in millions)

   $ 1,139      $ 987      $ 803   

Korea

     24     18     12

Taiwan

     22     21     22

China

     21     8     6

Japan

     13     17     14

United States

     9     17     29

Europe

     7     8     9

Southeast Asia

     4     11     8

Shipments for the December 2013 quarter increased 15% compared to the September 2013 quarter and increased 42% compared to the December 2012 quarter as customer demand for semiconductor equipment increased, particularly for the memory market. The percentage of total system shipments to each of the market segments we serve were as follows for the periods presented:

 

     Three Months Ended  
     December 29,
2013
    September 29,
2013
    December 23,
2012
 

Memory

     64     48     20

Foundry

     28     36     51

Logic/integrated device manufacturing

     8     16     29

Revenue

 

     Three Months Ended     Six Months Ended  
     December 29,
2013
    September 29,
2013
    December 23,
2012
    December 29,
2013
    December 23,
2012
 

Revenue (in millions)

   $ 1,116      $ 1,015      $ 861      $ 2,131      $ 1,768   

Taiwan

     28     24     26     26     27

Korea

     19     23     12     21     18

Japan

     17     13     10     15     9

United States

     13     14     24     13     21

China

     12     8     9     10     10

Southeast Asia

     6     9     11     8     7

Europe

     5     9     8     7     8

Revenue for the December 2013 quarter increased 10% compared to the September 2013 quarter, increased 30% as compared to the December 2012 quarter, and increased 21% during the six months ended December 29, 2013 as compared to the same period last year, reflecting increased customer demand. Our deferred revenue balance increased to $405 million as of December 29, 2013 compared to $334 million as of September 29, 2013. Our deferred revenue balance does not include shipments to Japanese customers, to whom title does not transfer until customer acceptance. Shipments to Japanese customers are classified as inventory at cost until the time of acceptance. The anticipated future revenue value from shipments to Japanese customers was approximately $53 million as of December 29, 2013 compared to $97 million as of September 29, 2013.

 

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Gross Margin

 

     Three Months Ended     Six Months Ended  
     December 29,
2013
    September 29,
2013
    December 23,
2012
    December 29,
2013
    December 23,
2012
 
     (in thousands, except percentages)  

Gross margin

   $ 487,789      $ 431,858      $ 315,414      $ 919,647      $ 649,300   

Percent of revenue

     43.7     42.5     36.6     43.2     36.7

The increase in gross margin as a percentage of revenue during the December 2013 quarter as compared to the September 2013 quarter is primarily due to a more favorable business mix combined with factory and manufacturing efficiencies including integration cost synergies.

The increase in gross margin as a percentage of revenue during the December 2013 quarter as compared to the December 2012 quarter is primarily due to improved factory efficiencies, as well as a more favorable product mix. Additionally, the acquisition-related inventory fair value impact and costs associated with rationalization of certain product configurations decreased by $26 million and $17 million, respectively, in the December 2013 quarter as compared to the same quarter last year.

The increase in gross margin as a percentage of revenue during the six months ended December 29, 2013 quarter as compared to the same period in the prior year is primarily due to higher improved factory utilization, as well as a more favorable product mix. Additionally, the acquisition-related inventory fair value impact and costs associated with rationalization of certain product configurations decreased by $67 million and $21 million, respectively, in the six months ended December 29, 2013 as compared to the same period last year.

Research and Development

 

     Three Months Ended     Six Months Ended  
     December 29,
2013
    September 29,
2013
    December 23,
2012
    December 29,
2013
    December 23,
2012
 
     (in thousands, except percentages)  

Research and development (“R&D”)

   $ 174,477      $ 170,567      $ 165,951      $ 345,044      $ 329,262   

Percent of revenue

     15.6     16.8     19.3     16.2     18.6

We continue to make significant R&D investments focused on leading-edge plasma etch, deposition, single-wafer clean and other semiconductor manufacturing requirements. The increase in R&D expenses during the December 2013 quarter compared to the September 2013 quarter was primarily due to a $3 million increase in employee compensation and temporary labor required to increase our investments in product development. A significant portion of the increase in benefit cost is due to changes in the market value of securities in our deferred compensation plan.

The increase in R&D expenses during the December 2013 quarter compared to the same period in the prior year was primarily due to an $8 million increase in salaries and benefits, reflecting an increase in our product development investments. The increase in R&D expenses during the six months ended December 29, 2013 as compared to the same period in the prior year was primarily due to a $17 million increase in salaries, benefits and temporary labor related to new product development.

Selling, General and Administrative

 

     Three Months Ended     Six Months Ended  
     December 29,
2013
    September 29,
2013
    December 23,
2012
    December 29,
2013
    December 23,
2012
 
     (in thousands, except percentages)  

Selling, general and administrative (“SG&A”)

   $ 148,838      $ 155,883      $ 145,421      $ 304,721      $ 299,284   

Percent of revenue

     13.3     15.4     16.9     14.3     16.9

The decrease in SG&A expenses during the December 2013 quarter compared to the September 2013 quarter was primarily due to a $7 million impairment of a long-lived asset in the September quarter.

The increase in SG&A expenses in the December 2013 quarter compared to the same period in the prior year was primarily due to a $6 million increase in employee compensation and a $5 million increase in marketing, offset by a $6 million decrease in integration costs.

 

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The increase in SG&A expenses in the six months ended December 29, 2013 quarter as compared to the same period in the prior year was primarily due to a $4 million increase in employee compensation, $9 million increase in marketing, and a $7 million impairment of a long-lived asset in the September 2013 quarter offset by a reduction of $12 million in integration-related costs and a $5 million decrease in amortization related to intangible assets acquired in the Novellus transaction.

Other Expense, Net

Other expense, net consisted of the following:

 

     Three Months Ended     Six Months Ended  
     December 29,
2013
    September 29,
2013
    December 23,
2012
    December 29,
2013
    December 23,
2012
 
     (in thousands)  

Interest income

   $ 2,828      $ 2,723      $ 4,376      $ 5,551      $ 8,176   

Interest expense

     (15,297     (15,302     (14,975     (30,599     (30,119

Gains on deferred compensation plan related assets

     5,360        37        1,234        5,397        3,975   

Foreign exchange gains (losses)

     125        (222     (3,274     (97     (3,642

Other, net

     3,147        (1,498     (751     1,649        (1,718
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
   $ (3,837   $ (14,262   $ (13,390   $ (18,099   $ (23,328
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Interest income decreased in the three and the six months ended December 29, 2013 as compared to the three and six months ended December 23, 2012 as a result of lower interest rate yields.

We incurred insignificant foreign exchange gains (losses) in both the three and six months ended December 29, 2013 and the three months ended September 29, 2013. Foreign exchange losses in the three and six months ended December 23, 2012 were related to un-hedged portions of the balance sheet exposures.

In the three and six months ended December 29, 2013 as compared to the three and six months ended December 23, 2012, we recognized gains on assets which are related to obligations under our deferred compensation plan, due to changes in the market value of securities in this portfolio.

Other income, net was higher during the three and the six months ended December 29, 2013 as compared to the three and six months ended December 23, 2012 primarily due to a $4.8 million gain on the disposition of a private equity investment.

Income Tax Expense

Our provision for income taxes and effective tax rate for the periods indicated were as follows:

 

     Three Months Ended     Six Months Ended  
     December 29,
2013
    December 23,
2012
    December 29,
2013
    December 23,
2012
 
     (in thousands, except percentages)  

Provision for income taxes

   $ 11,645      $ (15,756   $ 17,285      $ (11,750

Effective tax rate

     7.2     168.6     6.9     456.4

The change in the effective tax rate for the three and six months ended December 29, 2013 compared to the three and six months ended December 23, 2012 was primarily due to the level of income and the treatment of integration and impairment expenses as a discrete event in determining the effective tax rate. In addition, the U.S. federal research and development credit is available through December 31, 2013 for the calculation of the tax provision for the three and six months ended December 29, 2013. The credit was not available for the three and six months ended December 23, 2012 and therefore no tax benefit was included in the calculation of the tax provision.

The effective tax rate of 7.2% for the three months ended December 29, 2013 includes $1.2 million of tax expense related to the tax impact of integration, impairment expenses, and asset sale, offset by the tax impact of gain on sale of investment. The effective tax rate of 6.9% for the six months ended December 29, 2013 includes $2.9 million of tax benefit related to the tax impact of integration, impairment expenses, restructuring, and asset sale, offset by the tax impact of gain on sale of investment.

The effective tax rate of 168.6% and 456.4% for the three and six months ended December 23, 2012 included $3.1 million and $3.5 million, respectively, of tax benefit related to the tax impact of integration and impairment expenses.

 

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International revenues account for a significant portion of our total revenues, such that a material portion of our pre-tax income is earned and taxed outside the United States at rates that are generally lower than in the United States. Please refer to Note 10 of the Notes to Condensed Consolidated Financial Statements.

Uncertain Tax Positions

We reevaluate uncertain tax positions on a quarterly basis. This evaluation is based on factors including, but not limited to, changes in facts or circumstances, changes in tax law, effectively settled issues under audit, and new audit activity. Such a change in recognition or measurement would result in the recognition of a tax benefit or an additional charge to the tax provision.

CRITICAL ACCOUNTING POLICIES AND ESTIMATES

A critical accounting policy is defined as one that has both a material impact on our financial condition and results of operations and requires us to make difficult, complex and/or subjective judgments, often as a result of the need to make estimates about matters that are inherently uncertain. The preparation of financial statements in conformity with U.S. generally accepted accounting principles (“GAAP”) requires management to make certain judgments, estimates and assumptions that could affect the reported amounts of assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the reporting period. We based our estimates and assumptions on historical experience and on various other assumptions we believed to be applicable and evaluate them on an ongoing basis to ensure they remain reasonable under current conditions. Actual results could differ significantly from those estimates, which could have a material impact on our business, results of operations, and financial condition.

We believe that the following critical accounting policies reflect the more significant judgments and estimates used in the preparation of our consolidated financial statements.

Revenue Recognition: We recognize all revenue when persuasive evidence of an arrangement exists, delivery has occurred and title has passed or services have been rendered, the selling price is fixed or determinable, collection of the receivable is reasonably assured, and we have received customer acceptance, completed our system installation obligations, or are otherwise released from our installation or customer acceptance obligations. If terms of the sale provide for a lapsing customer acceptance period, we recognize revenue upon the expiration of the lapsing acceptance period or customer acceptance, whichever occurs first. If the practices of a customer do not provide for a written acceptance or the terms of sale do not include a lapsing acceptance provision, we recognize revenue when it can be reliably demonstrated that the delivered system meets all of the agreed-to customer specifications. In situations with multiple deliverables, we recognize revenue upon the delivery of the separate elements to the customer and when we receive customer acceptance or are otherwise released from our customer acceptance obligations. We allocate revenue from multiple-element arrangements among the separate elements based on their relative selling prices, provided the elements have value on a stand-alone basis. Our sales arrangements do not include a general right of return. The maximum revenue we recognize on a delivered element is limited to the amount that is not contingent upon the delivery of additional items. We generally recognize revenue related to sales of spare parts and system upgrade kits upon shipment. We generally recognize revenue related to services upon completion of the services requested by a customer order. We recognize revenue for extended maintenance service contracts with a fixed payment amount on a straight-line basis over the term of the contract. When goods or services have been delivered to the customer but all conditions for revenue recognition have not been met, we record deferred revenue and/or deferred costs of sales in deferred profit on our Consolidated Balance Sheets.

Inventory Valuation: Inventories are stated at the lower of cost or market using standard costs that generally approximate actual costs on a first-in, first-out basis. We maintain a perpetual inventory system and continuously record the quantity on-hand and standard cost for each product, including purchased components, subassemblies, and finished goods. We maintain the integrity of perpetual inventory records through periodic physical counts of quantities on hand. Finished goods are reported as inventories until the point of title transfer to the customer. Unless specified in the terms of sale, title generally transfers when we complete physical transfer of the products to the freight carrier. Transfer of title for shipments to Japanese customers generally occurs at the time of customer acceptance.

Management evaluates the need to record adjustments for impairment of inventory at least quarterly. Our policy is to assess the valuation of all inventories including manufacturing raw materials, work-in-process, finished goods, and spare parts in each reporting period. Obsolete inventory or inventory in excess of management’s estimated usage requirements over the next 12 to 36 months is written down to its estimated market value if less than cost. Estimates of market value include, but are not limited to, management’s forecasts related to our future manufacturing schedules, customer demand, technological and/or market obsolescence, general semiconductor market conditions, and possible alternative uses. If future customer demand or market conditions are less favorable than our projections, additional inventory write-downs may be required and would be reflected in cost of goods sold in the period in which we make the revision.

 

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Warranty: Typically, the sale of semiconductor capital equipment includes providing parts and service warranties to customers as part of the overall price of the system. We provide standard warranties for our systems. When appropriate, we record a provision for estimated warranty expenses to cost of sales for each system when we recognize revenue. We do not maintain general or unspecified reserves; all warranty reserves are related to specific systems. The amount recorded is based on an analysis of historical activity that uses factors such as type of system, customer, geographic region, and any known factors such as tool reliability trends. All actual or estimated parts and labor costs incurred in subsequent periods are charged to those established reserves on a system-by-system basis.

Actual warranty expenses are accounted for on a system-by-system basis and may differ from our original estimates. While we periodically monitor the performance and cost of warranty activities, if actual costs incurred are different than our estimates, we may recognize adjustments to provisions in the period in which those differences arise or are identified. In addition to the provision of standard warranties, we offer customer-paid extended warranty services. Revenues for extended maintenance and warranty services with a fixed payment amount are recognized on a straight-line basis over the term of the contract. Related costs are recorded as incurred.

Equity-based Compensation — Employee Stock Purchase Plan (“ESPP”) and Employee Stock Plans: GAAP requires us to recognize the fair value of equity-based compensation in net income. We determine the fair value of our restricted stock units (“RSUs”) based upon the fair market value of Company stock at the date of grant. We estimate the fair value of our stock options and ESPP awards using the Black-Scholes option valuation model. This model requires us to input highly subjective assumptions, including expected stock price volatility and the estimated life of each award. We amortize the fair value of equity-based awards over the vesting periods of the awards, and we have elected to use the straight-line method of amortization.

We make quarterly assessments of the adequacy of our tax credit pool related to equity-based compensation to determine if there are any deficiencies that we are required to recognize in our Consolidated Statements of Operations. We will only recognize a benefit from stock-based compensation in paid-in-capital if we realize an incremental tax benefit after all other tax attributes currently available to us have been utilized. In addition, we have elected to account for the indirect benefits of stock-based compensation on the research tax credit through the income statement (continuing operations) rather than through paid-in-capital. We have also elected to net deferred tax assets and the associated valuation allowance related to net operating loss and tax credit carryforwards for the accumulated stock award tax benefits for income tax footnote disclosure purposes. We track these stock award attributes separately and will only recognize these attributes through paid-in-capital.

Income Taxes: Deferred income taxes reflect the net tax effect of temporary differences between the carrying amount of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes, as well as the tax effect of carryforwards. We record a valuation allowance to reduce our deferred tax assets to the amount that is more likely than not to be realized. Realization of our net deferred tax assets is dependent on future taxable income. We believe it is more-likely-than-not that such assets will be realized; however, ultimate realization could be negatively impacted by market conditions and other variables not known or anticipated at the time. In the event that we determine that we would not be able to realize all or part of our net deferred tax assets, an adjustment would be charged to earnings in the period such determination is made. Likewise, if we later determine that it is more-likely-than-not that the deferred tax assets would be realized, then the previously provided valuation allowance would be reversed.

We recognize the benefit from a tax position only if it is more-likely-than-not that the position would be sustained upon audit based solely on the technical merits of the tax position. Our policy is to include interest and penalties related to unrecognized tax benefits as a component of income tax expense.

In addition, the calculation of our tax liabilities involves dealing with uncertainties in the application of complex tax regulations. We recognize liabilities for uncertain tax positions based on a two-step process. The first step is to evaluate the tax position for recognition by determining if the weight of available evidence indicates that it is more-likely-than-not that the position will be sustained on audit, including resolution of related appeals or litigation processes, if any. The second step requires us to estimate and measure the tax benefit as the largest amount that is more than 50% likely to be realized upon ultimate settlement. It is inherently difficult and subjective to estimate such amounts, as this requires us to determine the probability of various possible outcomes. We reevaluate these uncertain tax positions on a quarterly basis. This evaluation is based on factors including, but not limited to, changes in facts or circumstances, changes in tax law, effectively settled issues under audit, and new audit activity. Such a change in recognition or measurement would result in the recognition of a tax benefit or an additional charge to the tax provision in the period such determination is made.

 

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Goodwill and Intangible Assets: The valuation of intangible assets acquired in a business combination requires the use of management estimates including but not limited to estimating future expected cash flows from assets acquired and determining discount rates. Management’s estimates of fair value are based upon assumptions believed to be reasonable, but which are inherently uncertain and unpredictable and, as a result, actual results may differ from estimates. Estimates associated with the accounting for acquisitions may change as additional information becomes available.

Goodwill represents the amount by which the purchase price in each business combination exceeds the fair value of the net tangible and identifiable intangible assets acquired. Each component of the Company for which discrete financial information is available and for which segment management regularly reviews the results of operations is considered a reporting unit. All goodwill acquired in a business combination is assigned to one or more reporting units as of the acquisition date. Goodwill is assigned to the Company’s reporting units that are expected to benefit from the synergies of the combination. The goodwill assigned to a reporting unit is the difference between the acquisition consideration assigned to the reporting unit on a relative fair value basis and the fair value of acquired assets and liabilities that can be specifically attributed to the reporting unit. We test goodwill and identifiable intangible assets with indefinite useful lives for impairment at least annually. We amortize intangible assets with estimable useful lives over their respective estimated useful lives, and we review for impairment whenever events or changes in circumstances indicate that the carrying amount of the intangible asset may not be recoverable and the carrying amount exceeds its fair value.

We review goodwill at least annually for impairment. If certain events or indicators of impairment occur between annual impairment tests, we would perform an impairment test of goodwill at that date. In testing for a potential impairment of goodwill, we: (1) allocate goodwill to our reporting units to which the acquired goodwill relates; (2) estimate the fair value of our reporting units; and (3) determine the carrying value (book value) of those reporting units, as some of the assets and liabilities related to those reporting units are not held by those reporting units but by a corporate function. Prior to this allocation of the assets to the reporting units, we are required to assess long-lived assets for impairment. Furthermore, if the estimated fair value of a reporting unit is less than the carrying value, we must estimate the fair value of all identifiable assets and liabilities of that reporting unit, in a manner similar to a purchase price allocation for an acquired business. This can require independent valuations of certain internally generated and unrecognized intangible assets such as in-process R&D and developed technology. Only after this process is completed can the amount of goodwill impairment, if any, be determined. Beginning with our fiscal year 2012 goodwill impairment analysis, we adopted new accounting guidance that allowed us to first assess qualitative factors to determine whether it was necessary to perform a quantitative analysis. Under the revised guidance, an entity is no longer required to calculate the fair value of a reporting unit unless the entity determines, based on a qualitative assessment, that it is more-likely-than-not that its fair value is less than its carrying amount. Our most recent annual goodwill impairment analysis, which was performed as of April 1, 2013, did not result in a goodwill impairment charge, nor did we record any goodwill impairment in fiscal 2012 or 2011. As a result of historical performance and growth potential, our Clean systems reporting unit may be at greater risk for goodwill impairment than our other reporting units if our actual results for this reporting unit differ from our projections.

The process of evaluating the potential impairment of goodwill is subjective and requires significant judgment at many points during the analysis. We determine the fair value of our reporting units by using a weighted combination of both a market and an income approach, as this combination is deemed to be the most indicative of fair value in an orderly transaction between market participants.

Under the market approach, we use information regarding the reporting unit as well as publicly available industry information to determine various financial multiples to value our reporting units. Under the income approach, we determine fair value based on estimated future cash flows of each reporting unit, discounted by an estimated weighted-average cost of capital, which reflects the overall level of inherent risk of a reporting unit and the rate of return an outside investor would expect to earn.

In estimating the fair value of a reporting unit for the purposes of our annual or periodic analyses, we make estimates and judgments about the future cash flows of our reporting units, including estimated growth rates and assumptions about the economic environment. Although our cash flow forecasts are based on assumptions that are consistent with the plans and estimates we are using to manage the underlying businesses, there is significant judgment involved in determining the cash flows attributable to a reporting unit. In addition, we make certain judgments about allocating shared assets to the estimated balance sheets of our reporting units. We also consider our market capitalization and that of our competitors on the date we perform the analysis. Changes in judgment on these assumptions and estimates could result in a goodwill impairment charge.

 

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As a result, several factors could result in impairment of a material amount of our goodwill balance in future periods, including, but not limited to: (1) weakening of the global economy, weakness in the semiconductor equipment industry, or our failure to reach our internal forecasts, which could impact our ability to achieve our forecasted levels of cash flows and reduce the estimated discounted cash flow value of our reporting units; and (2) a decline in our stock price and resulting market capitalization, if we determine that the decline is sustained and indicates a reduction in the fair value of our reporting units below their carrying value. In addition, the value we assign to intangible assets, other than goodwill, is based on our estimates and judgments regarding expectations such as the success and life cycle of products and technology acquired. If actual product acceptance differs significantly from our estimates, we may be required to record an impairment charge to write down the asset to its realizable value.

Recent Accounting Pronouncements

In July 2013, the FASB released Accounting Standards Update 2013-11, “Presentation of an Unrecognized Tax Benefit When a Net Operating Loss Carryforward, a Similar Tax Loss, or a Tax Credit Carryforward Exists.” The new standard requires that an unrecognized tax benefit should be presented as a reduction of a deferred tax asset for a net operating loss carryforward or other tax credit carryforward when settlement in this manner is available under the tax law. We are required to adopt this standard starting fiscal year 2015 and are currently in the process of determining the impact, if any, on our financial position.

LIQUIDITY AND CAPITAL RESOURCES

As of December 29, 2013, we had $2.7 billion in gross cash and cash equivalents, short-term investments, and restricted cash and investments (total cash and investments) compared to $2.7 billion as of June 30, 2013. Approximately $2.0 billion of our total cash and investments as of both December 29, 2013 and June 30, 2013 was held outside the U.S. in our foreign subsidiaries, of which substantially all would be subject to tax at U.S. rates if it were to be repatriated.

Cash Flows from Operating Activities

Net cash provided by operating activities of $181 million during the six months ended December 29, 2013 consisted of (in millions):

 

Net income

   $ 234.5   

Non-cash charges:

  

Depreciation and amortization

     147.9   

Equity-based compensation

     46.3   

Amortization of convertible note discount

     16.3   

Impairment of long lived assets

     7.6   

Deferred income taxes

     12.5   

Changes in operating asset and liability accounts

     (285.8

Other

     1.6   
  

 

 

 
   $ 180.9   
  

 

 

 

Changes in operating asset and liability accounts, net of foreign exchange impact, included the following uses of cash: increases in accounts receivable of $302.5 million and inventories of $90.3 million, partially offset by sources of cash resulting from increases in accrued liabilities of $54.2 million and trade accounts payable of $45.7 million.

Cash Flows from Investing Activities

Net cash used for investing activities during the six months ended December 29, 2013 was $94.9 million, primarily consisting of capital expenditures of $62.1 million and net purchases of available for sale securities of $46.2 million.

Cash Flows from Financing Activities

Net cash used for financing activities during the six months ended December 29, 2013 was $116.9 million, primarily consisting of $152.2 million in treasury stock repurchases partially offset by net proceeds from issuance of Lam Research common stock (“Common Stock”) related to employee equity-based plans of $36.1 million.

 

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Liquidity

Given the cyclical nature of the semiconductor equipment industry, we believe that maintaining sufficient liquidity reserves is important to support sustaining levels of investment in R&D and capital infrastructure. Anticipated cash flows from operations based on our current business outlook, combined with our current levels of cash, cash equivalents, and short term investments at December 29, 2013 are expected to be sufficient to support our anticipated levels of operations, investments, debt service requirements, and capital expenditures, through at least the next 12 months. However, uncertainty in the global economy and the semiconductor industry, as well as disruptions in credit markets have in the past, and could in the future, impact customer demand for our products, as well as our ability to manage normal commercial relationships with our customers, suppliers, and creditors.

In the longer term, liquidity will depend to a great extent on our future revenues and our ability to appropriately manage our costs based on demand for our products and services. While we have substantial cash balances in the United States and offshore, we may require additional funding and need to raise the required funds through borrowings or public or private sales of debt or equity securities. We believe that, if necessary, we will be able to access the capital markets on terms and in amounts adequate to meet our objectives. However, given the possibility of changes in market conditions or other occurrences, there can be no certainty that such funding will be available in needed quantities or on terms favorable to us.

 

ITEM 3. Q uantitative and Qualitative Disclosures about Market Risk

For financial market risks related to changes in interest rates, marketable equity security prices, and foreign currency exchange rates, refer to Part II, Item 7A, “Quantitative and Qualitative Disclosures About Market Risk”, in our 2013 Form 10-K. Other than noted below, our exposure related to market risk has not changed materially since June 30, 2013. All of the potential changes noted below are based on sensitivity analyses performed on our financial position as of December 29, 2013. Actual results may differ materially.

Fixed Income Securities

Our investments in various interest earning securities carry a degree of market risk for changes in interest rates. At any time, a sharp rise in interest rates could have a material adverse impact on the fair value of our fixed income investment portfolio. Conversely, declines in interest rates could have a material adverse impact on interest income for our investment portfolio. We target to maintain a conservative investment policy, which focuses on the safety and preservation of our capital by limiting default risk, market risk, reinvestment risk, and concentration risk. The following table presents the hypothetical fair values of fixed income securities that would result from selected potential decreases and increases in interest rates. Market changes reflect immediate hypothetical parallel shifts in the yield curve of plus or minus 50 basis points (“BPS”), 100 BPS, and 150 BPS. The hypothetical fair values as of December 29, 2013 were as follows:

 

     Valuation of Securities
Given an Interest Rate
Decrease of X Basis Points
     Fair Value as of
December 29, 2013
     Valuation of Securities
Given an Interest Rate
Increase of X Basis Points
 
     (150 BPS)      (100 BPS)      (50 BPS)      0.00%      50 BPS      100 BPS      150 BPS  
     (in thousands)  

Municipal Notes and Bonds

   $ 253,851       $ 253,784       $ 253,392       $ 252,261       $ 250,864       $ 249,466       $ 248,069   

US Treasury & Agencies

     177,240         177,240         177,148         175,673         173,939         172,205         170,472   

Government-Sponsored Enterprises

     38,685         38,685         38,648         38,399         38,105         37,811         37,516   

Foreign Government Bond

     30,192         30,136         29,948         29,708         29,463         29,218         28,973   

Corporate Notes and Bonds

     935,412         934,870         932,524         928,123         923,626         919,130         914,634   

Mortgage Backed Securities - Residential

     27,961         27,631         27,288         26,941         26,594         26,247         25,900   

Mortgage Backed Securities - Commercial

     105,194         104,705         104,129         103,515         102,901         102,287         101,673   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 1,568,535       $ 1,567,051       $ 1,563,077       $ 1,554,620       $ 1,545,492       $ 1,536,364       $ 1,527,237   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

We mitigate default risk by investing in high credit quality securities and by positioning our portfolio to respond appropriately to a significant reduction in a credit rating of any investment issuer or guarantor. The portfolio includes only marketable securities with active secondary or resale markets to achieve portfolio liquidity and maintain a prudent amount of diversification.

 

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ITEM 4. Controls and Procedures

Design of Disclosure Controls and Procedures and Internal Control over Financial Reporting

We maintain disclosure controls and procedures and internal control over final reporting that are designed to comply with Rule 13a-15 of the Exchange Act. In designing and evaluating the controls and procedures associated with each, management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives, and that the effectiveness of controls cannot be absolute because the cost to design and implement a control to identify errors or mitigate the risk of errors occurring should not outweigh the potential loss caused by the errors that would likely be detected by the control. Moreover, we believe that a control system cannot be guaranteed to be 100% effective all of the time. Accordingly, a control system, no matter how well designed and operated, can provide only reasonable, not absolute, assurance that the control system’s objectives will be met.

Disclosure Controls and Procedures

As required by Exchange Act Rule 13a-15(b), as of December 29, 2013, we carried out an evaluation, under the supervision and with the participation of our management, including our Chief Executive Officer and our Chief Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures as defined in Rule 13a-15(e). Based upon that evaluation, our Chief Executive Officer, along with our Chief Financial Officer, concluded that our disclosure controls and procedures are effective at the reasonable assurance level.

We intend to review and evaluate the design and effectiveness of our disclosure controls and procedures on an ongoing basis and to correct any material deficiencies that we may discover. Our goal is to ensure that our senior management has timely access to material information that could affect our business.

Changes in Internal Control over Financial Reporting

There has been no change in our internal control over financial reporting during our most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

Effectiveness of Controls

While we believe the present design of our disclosure controls and procedures and internal control over financial reporting is effective, future events affecting our business may cause us to modify our disclosure controls and procedures or internal control over financial reporting.

 

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PART II. OTHER INFORMATION

 

ITEM 1. Legal Proceedings

The Company is either a defendant or plaintiff in various actions that have arisen from time to time in the normal course of business, including intellectual property claims. The Company accrues for a liability when it is both probable that a liability has been incurred and the amount of the loss can be reasonably estimated. Significant judgment is required in both the determination of probability and the determination as to whether a loss is reasonably estimable. To the extent there is a reasonable possibility that the losses could exceed the amounts already accrued, the Company believes that the amount of any such additional loss would be immaterial to the Company’s business, financial condition, and results of operations.

 

ITEM 1A. Risk Factors

In addition to the other information in this Form 10-Q, the following risk factors should be carefully considered in evaluating the Company and its business because such factors may significantly impact our business, operating results, and financial condition. As a result of these risk factors, as well as other risks discussed in our other SEC filings, our actual results could differ materially from those projected in any forward-looking statements. No priority or significance is intended, nor should be attached, to the order in which the risk factors appear.

The Semiconductor Equipment Industry is Subject to Major Fluctuations and, as a Result, We Face Risks Related to Our Strategic Resource Allocation Decisions

The business cycle in the semiconductor equipment industry has historically been characterized by frequent periods of rapid change in demand that challenge our management to adjust spending and other resources allocated to operating activities. During periods of rapid growth or decline in demand for our products and services, we face significant challenges in maintaining adequate financial and business controls, management processes, information systems, procedures for training and managing our work force, and in appropriately sizing our supply chain infrastructure, work force, and other components of our business on a timely basis. If we do not adequately meet these challenges during periods of demand decline, our gross margins and earnings may be negatively impacted.

We continuously reassess our strategic resource allocation choices in response to the changing business environment. If we do not adequately adapt to the changing business environment, we may lack the infrastructure and resources to scale up our business to meet customer expectations and compete successfully during a period of growth, or we may expand our capacity too rapidly and/or beyond what is appropriate for the actual demand environment.

Especially during transitional periods, resource allocation decisions can have a significant impact on our future performance, particularly if we have not accurately anticipated industry changes. Our success will depend, to a significant extent, on the ability of our executive officers and other members of our senior management to identify and respond to these challenges effectively.

Future Declines in the Semiconductor Industry, and the Overall World Economic Conditions on Which it is Significantly Dependent, Could Have a Material Adverse Impact on Our Results of Operations and Financial Condition

Our business depends on the capital equipment expenditures of semiconductor manufacturers, which in turn depend on the current and anticipated market demand for integrated circuits. The semiconductor industry is cyclical in nature and experiences periodic downturns. Global economic and business conditions, which are often unpredictable, have historically impacted customer demand for our products and normal commercial relationships with our customers, suppliers, and creditors. Additionally, in times of economic uncertainty our customers’ budgets for our products, or their ability to access credit to purchase them, could be adversely affected. This would limit their ability to purchase our products and services. As a result, economic downturns can cause material adverse changes to our results of operations and financial condition including, but not limited to:

 

    a decline in demand for our products or services;

 

    an increase in reserves on accounts receivable due to our customers’ inability to pay us;

 

    an increase in reserves on inventory balances due to excess or obsolete inventory as a result of our inability to sell such inventory;

 

    valuation allowances on deferred tax assets;

 

    restructuring charges;

 

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    asset impairments including the potential impairment of goodwill and other intangible assets;

 

    a decline in the value of our investments;

 

    exposure to claims from our suppliers for payment on inventory that is ordered in anticipation of customer purchases that do not come to fruition;

 

    a decline in the value of certain facilities we lease to less than our residual value guarantee with the lessor; and

 

    challenges maintaining reliable and uninterrupted sources of supply.

Fluctuating levels of investment by semiconductor manufacturers may materially affect our aggregate shipments, revenues and operating results. Where appropriate, we will attempt to respond to these fluctuations with cost management programs aimed at aligning our expenditures with anticipated revenue streams, which sometimes result in restructuring charges. Even during periods of reduced revenues, we must continue to invest in research and development (“R&D”) and maintain extensive ongoing worldwide customer service and support capabilities to remain competitive, which may temporarily harm our profitability and other financial results.

Our Quarterly Revenues and Operating Results Are Unpredictable

Our revenues and operating results may fluctuate significantly from quarter to quarter due to a number of factors, not all of which are in our control. We manage our expense levels based in part on our expectations of future revenues. Because our operating expenses are based in part on anticipated future revenues, and a certain amount of those expenses are relatively fixed, a change in the timing of recognition of revenue and/or the level of gross profit from a small number of transactions can unfavorably affect operating results in a particular quarter. Factors that may cause our financial results to fluctuate unpredictably include, but are not limited to:

 

    economic conditions in the electronics and semiconductor industries in general and specifically the semiconductor equipment industry;

 

    the size and timing of orders from customers;

 

    procurement shortages;

 

    the failure of our suppliers or outsource providers to perform their obligations in a manner consistent with our expectations;

 

    manufacturing difficulties;

 

    customer cancellations or delays in shipments, installations, and/or customer acceptances;

 

    the extent that customers continue to purchase and use our products and services in their business;

 

    changes in average selling prices, customer mix, and product mix;

 

    our ability in a timely manner to develop, introduce and market new, enhanced, and competitive products;

 

    our competitors’ introduction of new products;

 

    legal or technical challenges to our products and technology;

 

    transportation, communication, demand, information technology or supply disruptions based on factors outside our control such as strikes, acts of God, wars, terrorist activities, and natural disasters;

 

    legal, tax, accounting, or regulatory changes (including but not limited to change in import/export regulations) or changes in the interpretation or enforcement of existing requirements;

 

    changes in our estimated effective tax rate;

 

    foreign currency exchange rate fluctuations; and

 

    the dilutive impact of our convertible notes and related warrants on our earnings per share.

 

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Our Leverage and Debt Service Obligations and Potential Note Conversion or Related Hedging Activities May Adversely Affect Our Financial Condition, Results of Operations and Earnings Per Share

As a result of the sale of our 2016 and 2018 convertible notes and the assumption of the 2041 convertible notes in connection with our acquisition of Novellus Systems, Inc. (collectively the “Notes”), we have a greater amount of debt than we have maintained in the past. Our maintenance of higher levels of indebtedness could have adverse consequences including:

 

    impacting our ability to satisfy our obligations;

 

    increasing the portion of our cash flows that may have to be dedicated to interest and principal payments and may not be available for operations, working capital, capital expenditures, expansion, acquisitions or general corporate or other purposes; and

 

    impairing our ability to obtain additional financing in the future.

Our ability to meet our expenses and debt obligations will depend on our future performance, which will be affected by financial, business, economic, regulatory and other factors. Furthermore, our operations may not generate sufficient cash flows to enable us to meet our expenses and service our debt. As a result, we may need to enter into new financing arrangements to obtain the necessary funds. If we determine it is necessary to seek additional funding for any reason, we may not be able to obtain such funding or, if funding is available, obtain it on acceptable terms. If we fail to make a payment on our debt, we could be in default on such debt, and this default could cause us to be in default on our other outstanding indebtedness.

Conversion of our Notes may cause dilution to our shareholders and to our earnings per share. Upon conversion of any Notes, we will deliver cash in the amount of the principal amount of the Notes and, with respect to any excess conversion value greater than the principal amount of the Notes, shares of our common stock, which would result in dilution to our shareholders. This dilution may be mitigated to some extent by the hedging transactions we entered into in connection with the sale of the 2016 and 2018 Notes or through share repurchases. Prior to the maturity of the Notes, if the price of our common stock exceeds the conversion price, U.S. GAAP requires that we report an increase in diluted share count, which would result in lower reported earnings per share. The price of our common stock could also be affected by sales of our common stock by investors who view the Notes as a more attractive means of equity participation in our company and by hedging activity that may develop involving our common stock by holders of the Notes.

We Have a Limited Number of Key Customers

Sales to a limited number of large customers constitute a significant portion of our overall revenue, shipments and profitability. As a result, the actions of even one customer may subject us to variability in those areas that are difficult to predict. In addition, large customers may be able to negotiate requirements that result in decreased pricing, increased costs and/or lower margins for us, such as regional manufacturing expectations, compliance to specific environmental, social and corporate governance standards, and limitations on our ability to share jointly developed technology with others. Similarly, significant portions of our credit risk may, at any given time, be concentrated among a limited number of customers, so that the failure of even one of these key customers to pay its obligations to us could significantly impact our financial results.

We Depend on New Products and Processes for Our Success. Consequently, We are Subject to Risks Associated with Rapid Technological Change

Rapid technological changes in semiconductor manufacturing processes subject us to increased pressure to develop technological advances that enable those processes. We believe that our future success depends in part upon our ability to develop and offer new products with improved capabilities and to continue to enhance our existing products. If new products have reliability, quality, or design problems, our performance may be impacted by reduced orders, higher manufacturing costs, delays in acceptance of and payment for new products, and additional service and warranty expenses. We may be unable to develop and manufacture new products successfully, or new products that we introduce may fail in the marketplace. The expected industry transition to a 450mm platform represents an emerging challenge for our business, and our failure to address that transition in a timely manner with productive and cost-effective products could adversely affect our business in a material way. Our failure to commercialize new products in a timely manner could result in loss of market share, unanticipated costs, and inventory obsolescence, which would adversely affect our financial results.

 

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In order to develop new products and processes, we expect to continue to make significant investments in R&D and to pursue joint development relationships with customers, suppliers or other members of the industry. We must manage product transitions and joint development relationships successfully, as the introduction of new products could adversely affect our sales of existing products and certain jointly developed technologies may be subject to restrictions on our ability to share that technology with other customers, which could limit our market for products incorporating those technologies. Future technologies, processes or product developments may render our current product offerings obsolete, leaving us with non-competitive products, or obsolete inventory, or both. Moreover, customers may adopt new technologies or processes to address the complex challenges associated with next generation devices. This shift may result in a reduction in the size of our addressable markets or could increase the relative size of markets in which we either do not compete or have relatively low market share.

We are Subject to Risks Relating to Product Concentration and Lack of Product Revenue Diversification

We derive a substantial percentage of our revenues from a limited number of products. System sales constitute a significant portion of our total revenue. Our systems are priced up to approximately $9 million per unit, and our revenues in any given quarter are dependent upon customer acceptance of a limited number of systems. As a result, the inability to recognize revenue on even a few systems can cause a significantly adverse impact on our revenues for a given quarter, and, in the longer term, the continued market acceptance of these products is critical to our future success. Our business, operating results, financial condition, and cash flows could therefore be adversely affected by:

 

    a decline in demand for even a limited number of our products;

 

    a failure to achieve continued market acceptance of our key products;

 

    export restrictions or other regulatory or legislative actions that could limit our ability to sell those products to key customer or market segments;

 

    an improved version of products being offered by a competitor in the market in which we participate;

 

    increased pressure from competitors that offer broader product lines;

 

    technological changes that we are unable to address with our products; or

 

    a failure to release new or enhanced versions of our products on a timely basis.

In addition, the fact that we offer limited product lines creates the risk that our customers may view us as less important to their business than our competitors that offer additional products as well. This may impact our ability to maintain or expand our business with certain customers. Such product concentration may also subject us to additional risks associated with technology changes. Our business is affected by our customers’ use of our products in certain steps in their wafer fabrication processes. Should technologies change so that the manufacture of semiconductors requires fewer steps using our products, this could have a larger impact on our business than it would on the business of our less concentrated competitors.

Strategic Alliances and Potential Customer Consolidation May Have Negative Effects on Our Business

Increasingly, semiconductor manufacturing companies are entering into strategic alliances or consolidating with one another to expedite the development of processes and other manufacturing technologies and/or achieve economies of scale. The outcomes of such an alliance can be the definition of a particular tool set for a certain function and/or the standardization of a series of process steps that use a specific set of manufacturing equipment; while the outcomes of consolidation can lead to an overall reduction in the market for semiconductor manufacturing equipment as customers’ operations achieve economies of scale and/or increased purchasing power based on their higher volumes. While in certain instances this could work to our advantage, if our equipment becomes the basis for the function or process as the tool of choice for the larger consolidated customer or alliance, it could also work to our disadvantage if a competitor’s tools or equipment become the standard equipment for such functions or processes.

Similarly, our customers may team with, or follow the lead of, educational or research institutions that establish processes for accomplishing various tasks or manufacturing steps. If those institutions utilize a competitor’s equipment when they establish those processes, it is likely that customers will tend to use the same equipment in setting up their own manufacturing lines. Even if they select our equipment, the institutions and the customers that follow their lead could impose conditions on acceptance of that equipment, such as adherence to standards and requirements or limitations on how we license our proprietary rights, that increase our costs or require us to take on greater risk. These actions could adversely impact our market share and financial results.

 

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We Depend On a Limited Number of Key Suppliers and Outsource Providers, and We Run the Risk That They Might Not Perform as We Expect

Outsource providers and component suppliers have played and will continue to play a key role in our manufacturing operations and in many of our transactional and administrative functions, such as information technology, facilities management, and certain elements of our finance organization. These providers and suppliers might suffer financial setbacks, be acquired by third parties, become subject to exclusivity arrangements that preclude further business with us or suffer force majeure events that could interrupt or impair their continued ability to perform as we expect.

Although we attempt to select reputable providers and suppliers, and we attempt to secure their performance on terms documented in written contracts, it is possible that one or more of these providers or suppliers could fail to perform as we expect, and such failure could have an adverse impact on our business. In some cases, the requirements of our business mandate that we obtain certain components and sub-assemblies included in our products from a single supplier or a limited group of suppliers. Where practical, we endeavor to establish alternative sources to mitigate the risk that the failure of any single provider or supplier will adversely affect our business, but this is not feasible in all circumstances. There is therefore a risk that a prolonged inability to obtain certain components or secure key services could impair our ability to manage operations, ship products and generate revenues, which could adversely affect our operating results and damage our customer relationships.

We Face Risks Related to the Disruption of Our Primary Manufacturing Facilities

Our manufacturing facilities are concentrated in just a few locations. These locations are subject to disruption for a variety of reasons such as natural disasters, terrorist attacks, disruptions of our information technology resources and utility interruptions. Such disruptions may cause delays in shipping our products which could result in the loss of business or customer trust, adversely affecting our business and operating results.

Once a Semiconductor Manufacturer Commits to Purchase a Competitor’s Semiconductor Manufacturing Equipment, the Manufacturer Typically Continues to Purchase that Competitor’s Equipment, Making it More Difficult for Us to Sell Our Equipment to that Customer

Semiconductor manufacturers must make a substantial investment to qualify and integrate wafer processing equipment into a semiconductor production line. We believe that once a semiconductor manufacturer selects a particular supplier’s processing equipment, the manufacturer generally relies upon that equipment for that specific production line application for an extended period of time. Accordingly, we expect it to be more difficult to sell our products to a given customer if that customer initially selects a competitor’s equipment for the same product line application.

We Face a Challenging and Complex Competitive Environment

We face significant competition from multiple competitors. Other companies continue to develop systems and products that are competitive to ours and may introduce new products, which may affect our ability to sell our existing products. We face a greater risk if our competitors enter into strategic relationships with leading semiconductor manufacturers covering products similar to those we sell or may develop, as this could adversely affect our ability to sell products to those manufacturers.

We believe that to remain competitive we must devote significant financial resources to offer a broad range of products, to maintain customer service and support centers worldwide, and to invest in product and process R&D. Certain of our competitors, especially those that are created and financially backed by foreign governments, have substantially greater financial resources and more extensive engineering, manufacturing, marketing, and customer service and support resources than we do and therefore have the potential to increasingly dominate the semiconductor equipment industry. These competitors may deeply discount or give away products similar to those that we sell, challenging or even exceeding our ability to make similar accommodations and threatening our ability to sell those products. We also face competition from our own customers, who in some instances have established affiliated entities that manufacture equipment similar to ours. For these reasons, we may fail to continue to compete successfully worldwide.

In addition, our competitors may be able to develop products comparable or superior to those we offer or may adapt more quickly to new technologies or evolving customer requirements. In particular, while we continue to develop product enhancements that we believe will address future customer requirements, we may fail in a timely manner to complete the development or introduction of these additional product enhancements successfully, or these product enhancements may not achieve market acceptance or be competitive. Accordingly, competition may intensify, and we may be unable to continue to compete successfully in our markets, which could have a material adverse effect on our revenues, operating results, financial condition, and/or cash flows.

 

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Our Future Success Depends Heavily on International Sales and the Management of Global Operations

Non-U.S. sales accounted for approximately 87% of total revenue in the six months ended December 29, 2013, 80% of total revenue in fiscal year 2013, and 83% of total revenue in fiscal year 2012. We expect that international sales will continue to account for a substantial majority of our total revenue in future years.

We are subject to various challenges related to international sales and the management of global operations including, but not limited to:

 

    trade balance issues;

 

    global economic and political conditions;

 

    changes in currency controls;

 

    differences in the enforcement of intellectual property and contract rights in varying jurisdictions;

 

    our ability to respond to customer and foreign government demands for locally sourced systems, spare parts and services and develop the necessary relationships with local suppliers;

 

    compliance with U.S. and international laws and regulations affecting foreign operations, including U.S. and international export restrictions and foreign labor laws;

 

    fluctuations in interest and foreign currency exchange rates;

 

    our ability to repatriate cash in a tax-efficient manner;

 

    the need for technical support resources in different locations; and

 

    our ability to secure and retain qualified people in all necessary locations for the successful operation of our business.

Certain international sales depend on our ability to obtain export licenses from the U.S. government. Our failure or inability to obtain such licenses would substantially limit our markets and severely restrict our revenues. Many of the challenges noted above are applicable in China, which is a fast developing market for the semiconductor equipment industry and therefore an area of potential significant growth for our business. As the business volume between China and the rest of the world grows, there is inherent risk, based on the complex relationships among China, Taiwan, Japan, South Korea, and the United States, that political and diplomatic influences might lead to trade disruptions. This would adversely affect our business with China, Taiwan, Japan, and/or South Korea and perhaps the entire Asia Pacific region. A significant trade disruption in these areas could have a materially adverse impact on our future revenue and profits.

We are potentially exposed to adverse as well as beneficial movements in foreign currency exchange rates. The majority of our sales and expenses are denominated in U.S. dollars. However, we are exposed to foreign currency exchange rate fluctuations primarily related to revenues denominated in Japanese yen and expenses denominated in euro. Currently, we enter into foreign currency forward contracts to minimize the short-term impact of the foreign currency exchange rate fluctuations on certain foreign currency monetary assets and liabilities, primarily third party accounts receivables, accounts payables and intercompany receivables and payables. In addition, we hedge certain anticipated foreign currency cash flows, primarily anticipated revenues denominated in Japanese yen and euro-denominated expenses. We believe these are our primary exposures to currency rate fluctuation. We expect to continue to enter into hedging transactions, for the purposes outlined, for the foreseeable future. However, these hedging transactions may not achieve their desired effect because differences between the actual timing of the underlying exposures and our forecasts of those exposures may leave us either over-or under-hedged on any given transaction. Moreover, by hedging these foreign currency denominated revenues, expenses, monetary assets and liabilities with foreign currency forward contracts, we may miss favorable currency trends that would have been advantageous to us but for the hedges. Additionally, we are exposed to short-term foreign currency exchange rate fluctuations on non-U.S. dollar-denominated monetary assets and liabilities (other than those currency exposures previously discussed) and currently we do not enter into foreign currency hedge contracts against these exposures. Therefore, we are subject to both favorable and unfavorable foreign currency exchange rate fluctuations to the extent that we transact business (including intercompany transactions) for these currencies.

The magnitude of our overseas business also affects where our cash is generated. Certain uses of cash, such as share repurchases or the repayment of our convertible notes, can usually only be made with cash balances and cash generated on-shore. Since the majority of our cash is generated outside of the United States, this may limit certain business decisions and adversely affect business outcomes.

 

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Our Ability to Attract, Retain and Motivate Key Employees Is Critical to Our Success

Our ability to compete successfully depends in large part on our ability to attract, retain and motivate key employees. This is an ongoing challenge due to intense competition for top talent, as well as fluctuations in industry economic conditions that may require cycles of hiring activity and workforce reductions. Our success in hiring depends on a variety of factors, including the attractiveness of our compensation and benefit programs and our ability to offer a challenging and rewarding work environment. We periodically evaluate our overall compensation programs and make adjustments, as appropriate, to maintain or enhance their competitiveness. If we are not able to successfully attract, retain and motivate key employees, we may be unable to capitalize on market opportunities and our operating results may be materially and adversely affected.

We Rely Upon Certain Critical Information Systems for the Operation of Our Business

We maintain and rely upon certain critical information systems for the effective operation of our business. These information systems include telecommunications, the internet, our corporate intranet, various computer hardware and software applications, network communications, and e-mail. These information systems may be owned and maintained by us, our outsource providers or third parties such as vendors and contractors. These information systems are subject to attacks, failures, and access denials from a number of potential sources including viruses, destructive or inadequate code, power failures, and physical damage to computers, hard drives, communication lines, and networking equipment. Confidential information stored on these information systems could be compromised. To the extent that these information systems are under our control, we have implemented security procedures, such as virus protection software and emergency recovery processes, to mitigate the outlined risks. However, security procedures for information systems cannot be guaranteed to be failsafe and our inability to use or access these information systems at critical points in time, or unauthorized releases of confidential information, could unfavorably impact the timely and efficient operation of our business.

In addition, we have recently merged the enterprise system used by Novellus prior to its acquisition by Lam with our global enterprise system. Combining these two systems was a complex process and there is possibility for error in the merger process. While we have exerted considerable efforts to ensure a fully operational system, should an error occur there could be a short-term adverse effect on our ability to conduct business in an efficient manner.

Our Financial Results May be Adversely Impacted by Higher than Expected Tax Rates or Exposure to Additional Tax Liabilities

As a global company, our effective tax rate is highly dependent upon the geographic composition of worldwide earnings and tax regulations governing each region. We are subject to income taxes in the United States and various foreign jurisdictions, and significant judgment is required to determine worldwide tax liabilities. Our effective tax rate could be adversely affected by changes in the split of earnings between countries with differing statutory tax rates, in the valuation of deferred tax assets, in tax laws, by material audit assessments, or changes in or expirations of agreements with tax authorities. These factors could affect our profitability. In particular, the carrying value of deferred tax assets, which are predominantly in the United States, is dependent on our ability to generate future taxable income in the United States. In addition, the amount of income taxes we pay is subject to ongoing audits in various jurisdictions, and a material assessment by a governing tax authority could affect our profitability.

A Failure to Comply with Environmental Regulations May Adversely Affect Our Operating Results

We are subject to a variety of governmental regulations related to the handling, discharge, and disposal of toxic, volatile or otherwise hazardous chemicals. We believe that we are generally in compliance with these regulations and that we have obtained (or will obtain or are otherwise addressing the need for) all environmental permits necessary to conduct our business. These permits generally relate to the handling and disposal of hazardous wastes. Nevertheless, the failure to comply with present or future regulations could result in fines being imposed on us, require us to suspend production, or cease operations or cause our customers to not accept our products. These regulations could require us to alter our current operations, to acquire significant additional equipment or to incur substantial other expenses to comply with environmental regulations. Any failure to comply with regulations governing the use, handling, sale, transport or disposal of hazardous substances could subject us to future liabilities.

 

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If We Choose to Acquire or Dispose of Businesses, Product Lines and Technologies, We May Encounter Unforeseen Costs and Difficulties That Could Impair Our Financial Performance

An important element of our management strategy is to review acquisition prospects that would complement our existing products, augment our market coverage and distribution ability, or enhance our technological capabilities. As a result, we may make acquisitions of complementary companies, products or technologies, or we may reduce or dispose of certain product lines or technologies that no longer fit our long-term strategies. Managing an acquired business, disposing of product technologies or reducing personnel entail numerous operational and financial risks, including difficulties in assimilating acquired operations and new personnel or separating existing business or product groups, diversion of management’s attention away from other business concerns, amortization of acquired intangible assets, adverse customer reaction to our decision to cease support for a product, and potential loss of key employees or customers of acquired or disposed operations. There can be no assurance that we will be able to achieve and manage successfully any such integration of potential acquisitions, disposition of product lines or technologies, or reduction in personnel or that our management, personnel, or systems will be adequate to support continued operations. Any such inabilities or inadequacies could have a material adverse effect on our business, operating results, financial condition, and cash flows.

In addition, any acquisition could result in changes such as potentially dilutive issuances of equity securities, the incurrence of debt and contingent liabilities, the amortization of related intangible assets, and goodwill impairment charges, any of which could materially adversely affect our business, financial condition, and results of operations and/or the price of our Common Stock.

The Market for Our Common Stock is Volatile, Which May Affect Our Ability to Raise Capital, Make Acquisitions, or Subject Our Business to Additional Costs

The market price for our Common Stock is volatile and has fluctuated significantly over the past years. The trading price of our Common Stock could continue to be highly volatile and fluctuate widely in response to a variety of factors, many of which are not within our control or influence. These factors include but are not limited to the following:

 

    general market, semiconductor, or semiconductor equipment industry conditions;

 

    economic or political events and trends occurring globally or in any of our key sales regions;

 

    variations in our quarterly operating results and financial condition, including our liquidity;

 

    variations in our revenues, earnings or other business and financial metrics from forecasts by us or securities analysts, or from those experienced by other companies in our industry;

 

    announcements of restructurings, reductions in force, departure of key employees, and/or consolidations of operations;

 

    government regulations;

 

    developments in, or claims relating to, patent or other proprietary rights;

 

    technological innovations and the introduction of new products by us or our competitors;

 

    commercial success or failure of our new and existing products;

 

    disruptions of relationships with key customers or suppliers; or

 

    dilutive impacts of our Notes and related warrants.

In addition, the stock market experiences significant price and volume fluctuations. Historically, we have witnessed significant volatility in the price of our Common Stock due in part to the actual or anticipated movement in interest rates and the price of and markets for semiconductors. These broad market and industry factors have and may again adversely affect the price of our Common Stock, regardless of our actual operating performance. In the past, following volatile periods in the price of their stock, many companies became the object of securities class action litigation. If we are sued in a securities class action, we could incur substantial costs, and it could divert management’s attention and resources and have an unfavorable impact on our financial performance and the price for our Common Stock.

 

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Intellectual Property, Indemnity and Other Claims Against Us Can be Costly and We Could Lose Significant Rights That are Necessary to Our Continued Business and Profitability

Third parties may assert infringement, unfair competition, product liability, breach of contract, or other claims against us. From time to time, other parties send us notices alleging that our products infringe their patent or other intellectual property rights. In addition, law enforcement authorities may seek criminal charges relating to intellectual property or other issues. We also face risks of claims arising from commercial and other relationships. In addition, our Bylaws and other indemnity obligations provide that we will indemnify officers and directors against losses that they may incur in legal proceedings resulting from their service to us. From time to time, in the normal course of business, we indemnify third parties with whom we enter into contractual relationships, including customers and suppliers, with respect to certain matters. We have agreed, under certain conditions, to hold these third parties harmless against specified losses, such as those arising from a breach of representations or covenants, other third party claims that our products when used for their intended purposes infringe the intellectual property rights of such other third parties, or other claims made against certain parties. In such cases, it is our policy either to defend the claims or to negotiate licenses or other settlements on commercially reasonable terms. However, we may be unable in the future to negotiate necessary licenses or reach agreement on other settlements on commercially reasonable terms, or at all, and any litigation resulting from these claims by other parties may materially adversely affect our business and financial results, and we may be subject to substantial damage awards and penalties. Moreover, although we have insurance to protect us from certain claims and cover certain losses to our property, such insurance may not cover us for the full amount of any losses, or at all, and may be subject to substantial exclusions and deductibles.

We May Fail to Protect Our Critical Proprietary Technology Rights, Which Could Affect Our Business

Our success depends in part on our proprietary technology and our ability to protect key components of that technology through patents, copyrights and trade secret protection. Protecting our key proprietary technology helps us to achieve our goals of developing technological expertise and new products and systems that give us a competitive advantage; increasing market penetration and growth of our installed base; and providing comprehensive support and service to our customers. As part of our strategy to protect our technology we currently hold a number of U.S. and foreign patents and pending patent applications, and we keep certain information, processes and techniques as trade secrets. However, other parties may challenge or attempt to invalidate or circumvent any patents the United States or foreign governments issue to us, these governments may fail to issue patents for pending applications, or we may lose trade secret protection over valuable information due to the actions or omissions of third parties or even our own employees. Additionally, even when patents are issued or trade secret processes are followed, the legal systems in certain of the countries in which we do business do not enforce patents and other intellectual property rights as rigorously as the United States. The rights granted or anticipated under any of our patents, pending patent applications or trade secrets may be narrower than we expect or, in fact, provide no competitive advantages. Any of these circumstances could have a material adverse impact on our business.

We May Incur Impairments to Goodwill or Long-Lived Assets

We review our long-lived assets, including goodwill and other intangible assets, for impairment annually or whenever events or changes in circumstances indicate that the carrying amount of these assets may not be recoverable. Negative industry or economic trends, including reduced market prices of our common stock, reduced estimates of future cash flows, disruptions to our business, slower growth rates, or lack of growth in our relevant business segments, could lead to impairment charges against our long-lived assets, including goodwill and other intangible assets. If, in any period, our stock price decreases to the point where our fair value, as determined by our market capitalization, is less than the book value of our assets, this could also indicate a potential impairment, and we may be required to record an impairment charge in that period, which could adversely affect our result of operations.

Our valuation methodology for assessing impairment requires management to make judgments and assumptions based on historical experience and to rely heavily on projections of future operating performance. We operate in a highly competitive environment and projections of future operating result and cash flows may vary significantly from actual results. Additionally, if our analysis indicates potential impairment to goodwill one or more of our business segments, we may be required to record additional charges to earnings in our financial statements, which could negatively affect our results of operations.

 

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We Are Exposed to Various Risks from Our Regulatory Environment

We are subject to various risks related to (i) new, different, inconsistent or even conflicting laws, rules and regulations that may be enacted by legislative bodies and/or regulatory agencies in the countries that we operate; (ii) disagreements or disputes between national or regional regulatory agencies related to international trade; and (iii) the interpretation and application of laws, rules and regulations. As a public company with global operations, we are subject to the laws of multiple jurisdictions and the rules and regulations of various governing bodies, including those related to financial and other disclosures, corporate governance, privacy, anti-corruption, such as the Foreign Corrupt Practices Act and other local laws prohibiting corrupt payments to governmental officials, and antitrust regulations, among others. One of these laws imposes new disclosure requirements regarding the use of certain minerals, which may have originated from the Democratic Republic of the Congo and adjoining countries in our products. This new requirement could affect the pricing, sourcing and availability of minerals used in the manufacture of components we use in our products. In addition, there will be additional costs associated with complying with the disclosure requirements, such as costs related to determining the source of any of the covered minerals used in our products. Our supply chain is complex, and we may be unable to verify the origins for all metals used in our products. Financial reform legislation and the regulations enacted under such legislation have also added costs to our business by, among other things, requiring advisory votes on executive compensation and on severance packages upon a change in control.

To maintain high standards of corporate governance and public disclosure, we intend to invest all reasonably necessary resources to comply with all evolving standards. Changes in or ambiguous interpretations of laws, regulations and standards may create uncertainty regarding compliance matters. Efforts to comply with new and changing regulations have resulted in, and are likely to continue to result in, increased general and administrative expenses and a diversion of management’s time and attention from revenue generating activities to compliance activities. If we are found by a court or regulatory agency not to be in compliance with the laws and regulations, our business, financial condition, and results of operations could be adversely affected.

 

ITEM 2. Unregistered Sales of Equity Securities and Use of Proceeds

Repurchases of Company Shares

On April 22, 2013, the Board of Directors authorized the repurchase of up to $250 million of Common Stock. These repurchases can be conducted on the open market or as private purchases and may include the use of derivative contracts with large financial institutions, in all cases subject to compliance with applicable law. Repurchases will be funded using the Company’s on-shore cash and on-shore cash generation. This repurchase program has no termination date and may be suspended or discontinued at any time.

As part of our share repurchase program, we may from time-to-time enter into structured share repurchase arrangements with financial institutions using general corporate funds. Such arrangements entered into or settled during the three and six months ended December 29, 2013 included the following:

Collared Accelerated Share Repurchases

During the six months ended December 29, 2013, we entered into a collared accelerated share repurchase (“ASR”) transaction under a master repurchase arrangement. Under the ASR, we made an up-front cash payment of $75 million, in exchange for an initial delivery of 1.2 million shares of our Common Stock and a subsequent delivery of 0.3 million shares following the initial hedge period.

The number of shares to ultimately be repurchased by us is based generally on the volume-weighted average price (“VWAP”) of the Common Stock during the term of the ASR minus a pre-determined discount set at inception of the ASR, subject to collar provisions that provide a minimum and maximum number of shares that we could repurchase under the agreements. The minimum and maximum thresholds for the transaction were established based on the average of the VWAP prices for the Common Stock during an initial hedge period. The ASR was scheduled to end at any time after September 27, 2013 and on or before November 27, 2013. At the conclusion of the ASR, we may receive additional shares based on the VWAP of the Common Stock during the term of the agreement minus the pre-determined fixed discount, however the total number of shares received under the ASR would not exceed the maximum of 1.7 million shares.

The counterparty designated October 28, 2013 as the termination date, at which time we settled the ASR. No additional shares were received at final settlement, which represented a weighted-average share price of approximately $50.40 for the transaction period.

 

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We accounted for the ASR as two separate transactions: (a) as shares of common stock acquired in a treasury stock transaction recorded on the acquisition date and (b) as a forward contract indexed to our own common stock and classified in stockholders’ equity. As such, we accounted for the shares that we received under the ASR as a repurchase of our Common Stock for the purpose of calculating earnings per common share. We had determined that the forward contract indexed to the Common Stock met all of the applicable criteria for equity classification in accordance with the Derivatives and Hedging topic of the FASB Accounting Standards Codification, and, therefore, the ASR was not accounted for as a derivative instrument. As of December 29, 2013, the aggregate repurchase price of $75 million was reflected as Treasury stock, at cost, in the Consolidated Balance Sheet.

Share repurchases, including those under the repurchase program, were as follows:

 

Period

   Total Number of
Shares Repurchased (1)
     Average Price
Paid Per Share *
     Total Number of
Shares Purchased
as Part of Publicly
Announced Plan
or Program
     Amount Available
Under Repurchase
Program
 
     (in thousands, except per share data)  

Amount available at June 30, 2013

            $ 250,000   

Quarter ended September 29, 2013

     2,093       $ 48.39         1,935       $ 153,538   

September 30, 2013 - October 29, 2013

     10       $ 51.97         —         $ 153,538   

October 30, 2013 - November 29, 2013

     501       $ 52.28         387       $ 133,276   

November 30, 2013 - December 29, 2013

     456       $ 51.92         375       $ 113,738   
  

 

 

       

 

 

    

Total

     3,060       $ 50.68         2,697      
  

 

 

       

 

 

    

 

* Average price paid per share excludes accelerated share repurchases for which cost was incurred during the September 2013 quarter, but that did not settle until the December 2013 quarter. See Collared Accelerated Share Repurchases section above for details regarding average price associated with these transactions.
(1) In addition to shares repurchased under the Board-authorized repurchase program (as described above), included in this column are 204,000 shares acquired at a total cost of $10.6 million, which the Company withheld through net share settlements to cover minimum tax withholding obligations upon the vesting of restricted stock unit awards granted under the Company’s equity compensation plans. The shares retained by the Company through these net share settlements are not a part of the Board-authorized repurchase program but instead are authorized under the Company’s equity compensation plans.

 

ITEM 3. Defaults Upon Senior Securities

None.

 

ITEM 4. Mine Safety Disclosures

Not applicable.

 

ITEM 5. Other Information

None.

 

ITEM 6. E xhibits

See the Exhibit Index following the signature page to this Quarterly Report on Form 10-Q for a list of exhibits filed or furnished with this report, which Exhibit Index is incorporated herein by reference.

 

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LAM RESEARCH CORPORATION

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned thereunto duly authorized.

 

Date: February 6, 2014    

LAM RESEARCH CORPORATION

(Registrant)

   

/s/    Douglas R. Bettinger        

    Douglas R. Bettinger
    Executive Vice President, Chief Financial Officer
    (Principal Financial Officer and Principal Accounting Officer)

 

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EXHIBIT INDEX

 

Exhibit
Number

  

Description

  10.1*

   Form of Restricted Stock Unit Award Agreement (U.S. Participants) – Lam Research Corporation 2007 Stock Incentive Plan

  10.2*

   Form of Restricted Stock Unit Award Agreement (International Participants) – Lam Research Corporation 2007 Stock Incentive Plan

  10.3*

   Form of Nonstatutory Stock Option Award Agreement (U.S. Participants) – Lam Research Corporation 2007 Stock Incentive Plan

  10.4*

   Form of Nonstatutory Stock Option Award Agreement (International Participants) – Lam Research Corporation 2007 Stock Incentive Plan

  10.5*

   Form of Market-Based Performance Restricted Stock Unit Award Agreement (U.S. Participants) – Lam Research Corporation 2007 Stock Incentive Plan

  10.6*

   Form of Market-Based Performance Restricted Stock Unit Award Agreement (International Participants) – Lam Research Corporation 2007 Stock Incentive Plan

  10.7*

   Form of Restricted Stock Unit Award Agreement (U.S. Participants) – Lam Research Corporation (Novellus Systems, Inc.) 2011 Stock Incentive Plan (As Amended)

  10.8*

   Form of Restricted Stock Unit Award Agreement (International Participants) – Lam Research Corporation (Novellus Systems, Inc.) 2011 Stock Incentive Plan (As Amended)

  10.9*

   Form of Nonstatutory Stock Option Award Agreement (U.S. Participants) – Lam Research Corporation (Novellus Systems, Inc.) 2011 Stock Incentive Plan (As Amended)

  10.11*

   Form of Nonstatutory Stock Option Award Agreement (International Participants) – Lam Research Corporation (Novellus Systems, Inc.) 2011 Stock Incentive Plan (As Amended)

  10.12*

   Form of Market-Based Performance Restricted Stock Unit Award Agreement (U.S. Participants) – Lam Research Corporation (Novellus Systems, Inc.) 2011 Stock Incentive Plan (As Amended)

  10.13*

   Form of Market-Based Performance Restricted Stock Unit Award Agreement (International Participants) – Lam Research Corporation (Novellus Systems, Inc.) 2011 Stock Incentive Plan (As Amended)

  10.14

   Participation Agreement between Lam Research Corporation and BTMU Capital Leasing & Finance, Inc, dated December 31, 2013

  10.15

   Amended and Restated Lease Agreement (1 Portola Avenue Building) between Lam Research Corporation and BTMU Capital Leasing & Finance, Inc, dated December 31, 2013

  10.16

   Pledge Agreement (1 Portola Avenue Building) between Lam Research Corporation and BTMU Capital Leasing & Finance, Inc, dated December 31, 2013

  10.17

   Amended and Restated Lease Agreement (101 Portola Avenue Building) between Lam Research Corporation and BTMU Capital Leasing & Finance, Inc, dated December 31, 2013

  10.18

   Pledge Agreement (101 Portola Avenue Building) between Lam Research Corporation and BTMU Capital Leasing & Finance, Inc, dated December 31, 2013

  10.19

   Amended and Restated Lease Agreement (Fremont Building #1) between Lam Research Corporation and BTMU Capital Leasing & Finance, Inc, dated December 31, 2013

  10.20

   Pledge Agreement (Fremont Building #1) between Lam Research Corporation and BTMU Capital Leasing & Finance, Inc, dated December 31, 2013

 

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  10.21

   Amended and Restated Lease Agreement (Fremont Building #3) between Lam Research Corporation and BTMU Capital Leasing & Finance, Inc, dated December 31, 2013

  10.22

   Pledge Agreement (Fremont Building #3) between Lam Research Corporation and BTMU Capital Leasing & Finance, Inc, dated December 31, 2013

  10.23

   Amended and Restated Lease Agreement (Fremont Building #3E) between Lam Research Corporation and BTMU Capital Leasing & Finance, Inc, dated December 31, 2013

  10.24

   Pledge Agreement (Fremont Building #3E) between Lam Research Corporation and BTMU Capital Leasing & Finance, Inc, dated December 31, 2013

  10.25

   Amended and Restated Lease Agreement (Fremont Building #4) between Lam Research Corporation and BTMU Capital Leasing & Finance, Inc, dated December 31, 2013

  10.26

   Pledge Agreement (Fremont Building #4) between Lam Research Corporation and BTMU Capital Leasing & Finance, Inc, dated December 31, 2013

  10.27

   Construction Agency Agreement (Fremont Building #3E) between Lam Research Corporation and BTMU Capital Leasing & Finance, Inc, dated December 31, 2013

  10.28*

   Form of Amendment to Employment Agreement

  10.29*

   Form of Amendment to Change in Control Agreement

  31.1

   Rule 13a-14(a)/15d-14(a) Certification (Principal Executive Officer)

  31.2

   Rule 13a-14(a)/15d-14(a) Certification (Principal Financial Officer)

  32.1

   Section 1350 Certification (Principal Executive Officer)

  32.2

   Section 1350 Certification (Principal Financial Officer)

101.INS

   XBRL Instance Document

101.SCH

   XBRL Taxonomy Extension Schema Document

101.CAL

   XBRL Taxonomy Extension Calculation Linkbase Document

101.DEF

   XBRL Taxonomy Extension Definition Linkbase Document

101.LAB

   XBRL Taxonomy Extension Label Linkbase Document

101.PRE

   XBRL Taxonomy Extension Presentation Linkbase Document

 

* Indicates management contract or compensatory plan or arrangement in which executive officers of the Company are eligible to participate

 

49

Exhibit 10.1

LAM RESEARCH CORPORATION

2007 Stock Incentive Plan

Restricted Stock Unit Award Agreement

(U.S. Participants)

Pursuant to the terms of the 2007 Stock Incentive Plan (the “Plan”) Lam Research Corporation, a Delaware corporation (the “Company”), hereby awards restricted stock units (“RSUs”) to the Participant on the terms and conditions as set forth in this Restricted Stock Unit Award Agreement (including the attached Exhibit A) (the “Agreement”) and the Plan. Capitalized terms used but not defined in this Agreement shall have the meaning specified in the Plan. This Agreement is effective as of the Grant Date.

NOW, THEREFORE , it is hereby agreed as follows:

1. Award of RSUs . Subject to the terms and conditions of this Agreement and the Plan (the terms of which are incorporated herein by reference) and effective as of the date set forth above, the Company hereby grants to the Participant a Number of RSUs as set forth in Exhibit A. The RSUs represent an unfunded, unsecured promise by the Company to deliver Shares subject to the terms and conditions of this Agreement.

2. Vesting .

(a) Subject to the terms and conditions of this Agreement and provided that the Participant continues to provide Service (as defined in Section 3 below) to the Company (or any Affiliate) through the applicable Vesting Date(s) as set forth in Exhibit A, the RSUs will vest and become payable in Shares pursuant to the applicable Vesting Date(s) as set forth in Exhibit A.

(b) In the event of a Change of Control of the Company, the RSUs are governed by Section 10 of the Plan (subject to the terms of any applicable Employment or Change in Control Agreement).

3. Effect of Termination of Service or Leave of Absence .

(a) For purposes of this Agreement, “Service” shall mean the performance of services for the Company (or any Affiliate) in the capacity of an Employee or Company Director and shall be considered terminated on the later of the last day the Participant is on payroll or the last day of service as a director for a Company Director. In the event of termination of the Participant’s Service by the Participant or by the Company or an Affiliate for any reason, excluding Participant’s death or disability (as determined by the Administrator) before all RSUs have vested, the unvested RSUs shall be cancelled by the Company.

(b) In the event of termination of the Participant’s Service due to death, a portion of the RSUs granted to the Participant shall vest on the date of death. To determine the applicable number of Shares, the Number of RSUs (as set forth in Exhibit A) shall be multiplied by the greater of (x) 50% or (y) the percentage of full months worked from the Grant Date until the date of death (the “Death Vesting Date”) over the total number of full months from the Grant

 

Page 1 of 9


2007 Stock Incentive Plan RSU Award Agreement for U.S. Participants

 

Date until the last Vesting Date (as set forth in Exhibit A). Any remaining unvested portion of the RSUs shall be cancelled.

(c) In the event of termination of the Participant’s Service due to disability (as determined by the Administrator) a portion of the RSUs granted to the Participant shall vest on the date the disability is incurred. To determine the applicable number of Shares, the Number of RSUs (as set forth in Exhibit A) shall be multiplied by the greater of (x) 50% or (y) the percentage of full months worked from the Grant Date until the date the disability is incurred (the “Disability Vesting Date”, and collectively, with the Vesting Date(s) set forth in Exhibit A, and the “Death Vesting Date”, the “Vesting Date”) over the total number of full months from the Grant Date until the last Vesting Date (as set forth in Exhibit A). Any remaining unvested portion of the RSUs shall be cancelled.

(d) Vesting of the RSUs will be suspended and vesting credit will no longer accrue as of the day of the leave of absence as set forth in Exhibit A, unless otherwise determined by the Administrator or required by contract or statute. If the Participant returns to Service immediately after the end of an approved leave of absence, vesting credit shall continue to accrue from that date of continued Service.

4. Form and Timing of Payment .

(a) Subject to Section 5 of this Agreement and provided that the Participant has satisfied the vesting requirements of Section 2 of this Agreement, on each Vesting Date, as applicable, the RSUs shall automatically be converted into unrestricted Shares. Such Shares will be issued to the Participant (as evidenced by the appropriate entry in the books of the Company or a duly authorized transfer agent of the Company) on the applicable Vesting Date (or as soon as practicable), but in any event, within the period ending on the later to occur of the date that is 2  1 2 months after the end of (i) the Participant’s tax year that includes the applicable Vesting Date, or (ii) the Company’s tax year that includes the applicable Vesting Date.

(b) Shares issued in respect of RSUs shall be deemed to be issued in consideration of past services actually rendered by the Participant to the Company or an Affiliate or for its benefit for which the Participant has not previously been compensated or for future services to be rendered, as the case may be, which the Company deems to have a value at least equal to the aggregate par value of the Shares subject to the RSUs.

5. Tax Withholding Obligations . Regardless of any action the Company or the Participant’s employer (the “Employer”) takes with respect to any or all income tax (including federal, state and local taxes), social insurance, payroll tax, or other tax-related withholding (“Tax-Related Items”), the Participant acknowledges that the ultimate liability for all Tax-Related Items legally due by the Participant is and remains the Participant’s responsibility and that the Company and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the RSUs, including the grant of the RSUs, the vesting of the RSUs, or the receipt of an equivalent cash payment, the subsequent sale of any Shares acquired at vesting and the receipt of any dividends; and (ii) do not commit to structure the terms of the grant or any aspect of the RSUs to reduce or eliminate the Participant’s liability for Tax-Related Items or achieve any particular tax result.

 

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2007 Stock Incentive Plan RSU Award Agreement for U.S. Participants

 

Prior to the issuance of Shares upon vesting of the RSUs (or any other tax or withholding event), the Participant shall pay, or make arrangements satisfactory to the Company (in the Company’s sole discretion) to satisfy all withholding obligations. In those cases where a prior arrangement has not been made (or where the amount of money provided under the prior arrangement is insufficient to satisfy the obligations for Tax-Related Items), the Company shall withhold a number of whole Shares otherwise deliverable at vesting having a Fair Market Value sufficient to satisfy the statutory minimum (or such higher amount as is allowable without adverse accounting consequences) of the Participant’s estimated obligations for Tax-Related Items applicable to the RSUs; such withholding will result in the issuance to the participant of a lower number of Shares.

The Company and/or the Employer may also, in lieu of or in addition to the foregoing, at the Company’s sole discretion, as authorized herein by the Participant, withhold all applicable Tax-Related Items legally payable by the Participant from the Participant’s wages or other cash compensation or to withhold in one of the following ways, as determined by the Company: (i) require the Participant to deposit with the Company an amount of cash sufficient to meet his or her obligation for Tax-Related Items, and/or (ii) sell or arrange for the sale of Shares to be issued on the vesting of the RSUs to satisfy the withholding obligation. If the Participant’s obligation for Tax-Related Items is satisfied as described in (ii) of this section, the Company will endeavor to sell only the number of Shares required to satisfy the Participant’s obligations for Tax-Related Items; however, the Participant agrees that the Company may sell more Shares than necessary to cover the Tax-Related Items and that in such event, the Company will reimburse the Participant for the excess amount withheld, in cash and without interest. The Participant shall pay the Employer any amount of Tax-Related Items the Employer may be required to withhold as a result of the Participant’s receipt of the RSUs or the vesting of the RSUs that cannot be satisfied by the means previously described. The Company may refuse to deliver Shares to the Participant if the Participant fails to comply with his or her obligation in connection with the Tax-Related Items as described herein. The Participant hereby consents to any action reasonably taken by the Company and/or the Employer to meet his or her obligation for Tax-Related Items.

Further, in consideration of the grant of the RSUs, no claim or entitlement to compensation or damages arises if, in satisfying the Participant’s (and/or the Employer’s) obligation for Tax-Related Items, the Company and/or the Employer withholds an amount in excess of the amount legally required to be withheld, the Participant irrevocably releases the Company and the Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Agreement, the Participant shall be deemed irrevocably to have waived his or her entitlement to pursue such claim or damages.

6. Restriction on Transferability . Prior to vesting and delivery of the Shares, neither the RSUs, nor the Shares or any beneficial interest therein, may be sold, transferred, pledged, assigned, or otherwise alienated at any time. Any attempt to do so contrary to the provisions hereof shall be null and void. Notwithstanding the above, distribution can be made pursuant to will, the laws of descent and distribution, and if provided by the Administrator, intra-family transfer instruments, or to an inter vivos trust, or as otherwise provided by the Administrator. The terms of this Agreement shall be binding upon the executors, administrators, heirs, successors and assigns of the Participant.

 

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2007 Stock Incentive Plan RSU Award Agreement for U.S. Participants

 

7. Requirements of Law . The issuance of Shares upon vesting of the RSUs is subject to Section 13 of the Plan, which generally provides that any such issuance shall be subject to compliance by the Company and the Participant with all applicable requirements of law relating thereto and with all applicable regulations of any stock exchange on which the Shares may be listed for trading at the time of such issuance. The inability of the Company to obtain approval from any regulatory body having authority deemed by the Company to be necessary to the lawful issuance of any Shares hereby shall relieve the Company of any liability with respect to the non-issuance of the Shares as to which such approval shall not have been obtained. The Company, however, shall use its reasonable efforts to obtain all such approvals.

8. Rights as Stockholder . The Participant shall not have voting, dividend or any other rights as a stockholder of the Company with respect to the RSUs. Upon settlement of the Participant’s RSUs into Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), the Participant will obtain full voting, dividend and other rights as a stockholder of the Company.

9. No Compensation Deferrals . Neither the Plan nor this Agreement is intended to provide for an elective deferral of compensation that would be subject to Section 409A (“Section 409A”) of the Internal Revenue Code of 1986, as amended (the “Code”). If, notwithstanding the parties’ intent in this regard, at the time of the Participant’s termination of Service, he or she is determined to be a “specified employee” as defined in Code Section 409A, and one or more of the payments or benefits received or to be received by the Participant pursuant to the RSUs would constitute deferred compensation subject to Code Section 409A, no such payment or benefit will be provided under the RSUs until the earliest of (A) the date which is six (6) months after the Participant’s “separation from service” for any reason, other than death or “disability” (as such terms are used in Section 409A(a)(2) of the Code), (B) the date of the Participant’s death or “disability” (as such term is used in Section 409A(a)(2)(C) of the Code), or (C) the effective date of a “change in the ownership or effective control” or a “change in ownership of a substantial portion of the assets” of the Company (as such terms are used in Section 409A(a)(2)(A)(v) of the Code). The provisions of this Section 9 shall only apply to the extent required to avoid the Participant’s incurrence of any additional tax or interest under Code Section 409A or any regulations or U.S. Department of the Treasury (“Treasury”) guidance promulgated thereunder. In addition, if any provision of the RSUs would cause the Participant to incur any additional tax or interest under Code Section 409A or any regulations or Treasury guidance promulgated thereunder, the Company reserves the right, to the extent the Company deems necessary or advisable in its sole discretion, to unilaterally amend or modify the Plan and/or this Agreement to conform it to the maximum extent practicable to the original intent of the applicable provision without violating the provisions of Code Section 409A, including without limitation to limit payment or distribution of any amount of benefit hereunder in connection with a Change in Control to a transaction meeting the definitions referred to in clause (C) above, or in connection with any disability to a “disability” as referred to in (B) above; provided however that the Company makes no representation that these RSUs are not subject to Section 409A nor makes any undertaking to preclude Section 409A from applying to these RSUs. In addition, to the extent the Company determines it appropriate to accelerate any vesting conditions applicable to this award, then to the extent necessary to avoid the Participant’s incurring any additional tax or interest as a result of such vesting acceleration under Code Section 409A or any regulations or Treasury guidance promulgated thereunder, and notwithstanding Section 4 above, the Company

 

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2007 Stock Incentive Plan RSU Award Agreement for U.S. Participants

 

may as a condition to extending such acceleration benefits provide for the Shares to be issued upon settlement of the RSUs to be issued on the earliest date (the “Permitted Distribution Date”) that would obviate application of such additional tax or interest rather than issuing them upon the date on which such vesting is effective as would otherwise be required under Section 2 (or as soon as practicable after such Permitted Distribution Date and in no event later than that last day of the grace period following such date permitted under Code Section 409A).

10. Administration . The Administrator shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation, and application of the Plan as are consistent therewith and to interpret or revoke any such rules. All actions taken and all interpretations and determinations made by the Administrator shall be final and binding upon the Participant, the Company, and all other interested persons. No Administrator shall be personally liable for any action, determination, or interpretation made in good faith with respect to the Plan or this Agreement.

11. Effect on Other Employee Benefit Plans . The value of the RSUs granted pursuant to this Agreement shall not be included as compensation, earnings, salaries, or other similar terms used when calculating the Participant’s benefits under any employee benefit plan sponsored by the Company or any Affiliate, except as such plan otherwise expressly provides. The Company expressly reserves its rights to amend, modify, or terminate any of the Company’s or any Affiliate’s employee benefit plans.

12. No Employment Rights . The award of the RSUs pursuant to this Agreement shall not give the Participant any right to continue providing Service to the Company or an Affiliate and shall not interfere with the ability of the Employer to terminate the Participant’s Service with the Company at any time with or without cause.

13. Nature of the Grant . In accepting the RSUs, the Participant acknowledges that:

(a) the Plan is established voluntarily by the Company, it is discretionary in nature and may be modified, amended, suspended or terminated by the Company at any time, unless otherwise provided in the Plan and this Agreement;

(b) the grant of the RSUs is voluntary and occasional and does not create any contractual or other right to receive future awards of the RSUs, or benefits in lieu of RSUs even if RSUs have been awarded repeatedly in the past;

(c) all decisions with respect to future grants of RSUs, if any, will be at the sole discretion of the Company;

(d) the Participant’s participation in the Plan is voluntary;

(e) the RSUs are outside the scope of the Participant’s employment contract, if any;

(f) the RSUs are not part of normal or expected compensation or salary for any purpose, including, but not limited to, calculation of any overtime, severance, resignation,

 

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2007 Stock Incentive Plan RSU Award Agreement for U.S. Participants

 

termination, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments;

(g) in the event that the Participant is not an employee of the Company, the grant of the RSUs will not be interpreted to form an employment contract or relationship with the Company; and furthermore, the grant of the RSUs will not be interpreted to form an employment contract with the Employer or any Affiliate;

(h) the future value of the underlying Shares is unknown and cannot be predicted with certainty;

(i) if the Participant receives Shares upon vesting of the RSUs, the value of such Shares may increase or decrease in value;

(j) in consideration of the grant of the RSUs, no claim or entitlement to compensation or damages arises from termination of the RSUs or diminution in value of the RSUs or Shares received upon vesting of RSUs resulting from termination of the Participant’s Service to the Company or the Employer (for any reason whatsoever and whether or not in breach of local labor laws) and the Participant irrevocably releases the Company and the Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Agreement, the Participant shall be deemed irrevocably to have waived his or her entitlement to pursue such claim.

14. Amendment of Agreement . This Agreement may be amended only by a writing which specifically states that it amends this Agreement. Notwithstanding the foregoing, this Agreement may be amended unilaterally by the Committee by a writing which specifically states that it is amending this Agreement, so long as a copy of such amendment is delivered to the Participant, and provided that no such amendment adversely affects the rights of the Participant. Limiting the foregoing, the Committee reserves the right to change, by written notice to the Participant, the provisions of the RSUs or this Agreement in any way it may deem necessary or advisable to carry out the purpose of the grant as a result of any change in applicable laws or regulations or any future law, regulation, ruling, or judicial decision, or, to the extent permissible under the Plan (including, but not limited to Sections 10 and 14 of the Plan).

15. Notices . Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of its Administrator. Any notice to be given to the Participant shall be addressed to the Participant at the address listed in the Employer’s records. By a notice given pursuant to this Section, either party may designate a different address for notices. Any notice shall have been deemed given when actually delivered.

16. Severability . The provisions of this Agreement are severable and if all or any part of this Agreement or the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity shall not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid. Any Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid shall, if possible, be construed in a manner which

 

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2007 Stock Incentive Plan RSU Award Agreement for U.S. Participants

 

will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful and valid.

17. Construction . The RSUs are being issued pursuant to the Plan and are subject to the terms of the Plan. A copy of the Plan is available upon request during normal business hours at the principal executive offices of the Company. To the extent that any provision of this Agreement violates or is inconsistent with a provision of the Plan, the Plan provision shall govern and any inconsistent provision in this Agreement shall be of no force or effect.

18. Electronic Delivery . The Company may, in its sole discretion, decide to deliver any documents related to the RSUs granted under the Plan and participation in the Plan or future RSUs that may be granted under the Plan by electronic means or to request the Participant’s consent to participate in the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery and, if requested, to agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.

19. Entire Agreement . The Plan is incorporated herein by reference. The Plan and this Agreement constitute the entire agreement of the Company and the Participant with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Participant with respect to the subject matter hereof.

20. Miscellaneous .

(a) The Company has established the Plan voluntarily, it is discretionary in nature and the Board may terminate, amend, or modify the Plan at any time; provided, however, that no such termination, amendment, or modification of the Plan may in any way adversely affect the Participant’s rights under this Agreement, without the Participant’s written approval unless such termination, amendment, or modification of the Plan is necessary in order to comply with any change in applicable laws or regulations or any future law, regulation, ruling, or judicial decision or otherwise permissible under the Plan (including, but not limited to Sections 10 and 14 of the Plan).

(b) All obligations of the Company under the Plan and this Agreement in a Change of Control shall be governed by the Plan, other than as set forth in Section 2(b) above.

(c) By signing this Agreement, the Participant acknowledges that his or her personal employment or Service information regarding participation in the Plan and information necessary to determine and pay, if applicable, benefits under the Plan must be shared with other entities, including companies related to the Company and persons responsible for certain acts in the administration of the Plan. By signing this Agreement, the Participant consents to such transmission of personal data as the Company believes is appropriate to administer the Plan.

(d) To the extent not preempted by federal law, this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to its principles of conflict of laws.

 

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2007 Stock Incentive Plan RSU Award Agreement for U.S. Participants

 

21. Acceptance of Terms and Conditions . By accepting the terms of this Agreement, the Participant agrees to abide by all of the governing terms and provisions of the Plan and this Agreement. Additionally, the Participant acknowledges having read and understood the terms and conditions of the Plan and this Agreement and has had an opportunity to obtain the advice of counsel prior to accepting this Agreement. The Participant must acknowledge his or her agreement to abide by the terms and conditions of the Plan and Agreement by executing this Agreement electronically or, if otherwise instructed by the Company, by printing and signing a paper copy of this Agreement and returning it to the appropriate Company representative. In addition, the transfer or sale of the shares obtained at vesting by the Participant shall be considered an additional acknowledgment of the terms and conditions contained in the Plan and Agreement.

*    *    *    *    *

PARTICIPANT SIGNATURE

PRINTED NAME

DATE

 

Page 8 of 9


LAM RESEARCH CORPORATION

2007 Stock Incentive Plan

Restricted Stock Unit Award Agreement

EXHIBIT A

Participant (Name & Employee Number):

Grant Date:

Number of RSUs :

 

Vesting Date(s):  

[Insert Number] RSUs on [Insert Date]

 

[Insert Number] RSUs on [Insert Date]

 

[Insert Number] RSUs on [Insert Date]

Leave of Absence: 31 st day (or 91 st day if reemployment guaranteed by statute or contract)

 

Page 9 of 9

Exhibit 10.2

LAM RESEARCH CORPORATION

2007 Stock Incentive Plan

Restricted Stock Unit Award Agreement

(International Participants)

Pursuant to the terms of the 2007 Stock Incentive Plan (the “Plan”) Lam Research Corporation, a Delaware corporation (the “Company”), hereby awards restricted stock units (“RSUs”) to the Participant on the terms and conditions as set forth in this Restricted Stock Unit Award Agreement (including the attached Exhibit A) (the “Agreement”) and the Plan. Capitalized terms used but not defined in this Agreement shall have the meaning specified in the Plan. This Agreement is effective as of the Grant Date.

NOW, THEREFORE , it is hereby agreed as follows:

1. Award of RSUs . Subject to the terms and conditions of this Agreement and the Plan (the terms of which are incorporated herein by reference) and effective as of the date set forth above, the Company hereby grants to the Participant a Number of RSUs as set forth in Exhibit A. The RSUs represent an unfunded, unsecured promise by the Company to deliver Shares subject to the terms and conditions of this Agreement.

2. Vesting .

(a) Subject to the terms and conditions of this Agreement and provided that the Participant continues to provide Service (as defined in Section 3 below) to the Company (or any Affiliate) through the applicable Vesting Date(s) as set forth in Exhibit A, the RSUs will vest and become payable in Shares pursuant to the applicable Vesting Date(s) as set forth in Exhibit A.

(b) In the event of a Change of Control of the Company, the RSUs are governed by Section 10 of the Plan (subject to the terms of any applicable Employment or Change in Control Agreement).

3. Effect of Termination of Service or Leave of Absence .

(a) For purposes of this Agreement, “Service” shall mean the performance of services for the Company (or any Affiliate) in the capacity of an Employee or Company Director and shall be considered terminated on the later of the last day the Participant is on payroll or the last day of Service as a director for a Company Director. In the event of termination of the Participant’s Service by the Participant or by the Company or an Affiliate for any reason, excluding Participant’s death or disability (as determined by the Administrator) before all RSUs have vested, the unvested RSUs shall be cancelled by the Company.

(b) In the event of termination of the Participant’s Service due to death, a portion of the RSUs granted to the Participant shall vest on the date of death. To determine the applicable number of Shares, the Number of RSUs (as set forth in Exhibit A) shall be multiplied by the greater of (x) 50% or (y) the percentage of full months worked from the Grant Date until the date of death (the “Death Vesting Date”) over the total number of full months from the Grant

 

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2007 Stock Incentive Plan RSU Award Agreement for International Participants

 

Date until the last Vesting Date (as set forth in Exhibit A). Any remaining unvested portion of the RSUs shall be cancelled.

(c) In the event of termination of the Participant’s Service due to disability (as determined by the Administrator) a portion of the RSUs granted to the Participant shall vest on the date the disability is incurred. To determine the applicable number of Shares, the Number of RSUs (as set forth in Exhibit A) shall be multiplied by the greater of (x) 50% or (y) the percentage of full months worked from the Grant Date until the date the disability is incurred (the “Disability Vesting Date”, and collectively, with the Vesting Date(s) set forth in Exhibit A, and the “Death Vesting Date”, the “Vesting Date”) over the total number of full months from the Grant Date until the last Vesting Date (as set forth in Exhibit A). Any remaining unvested portion of the RSUs shall be cancelled.

(d) Vesting of the RSUs will be suspended and vesting credit will no longer accrue as of the day of the leave of absence as set forth in Exhibit A, unless otherwise determined by the Administrator or required by contract, statute or applicable local law. If the Participant returns to Service immediately after the end of an approved leave of absence, vesting credit shall continue to accrue from that date of continued Service.

4. Form and Timing of Payment .

(a) Subject to Section 5 of this Agreement and provided that the Participant has satisfied the vesting requirements of Section 2 of this Agreement, on each Vesting Date, as applicable, the RSUs shall automatically be converted into unrestricted Shares. Such Shares will be issued to the Participant (as evidenced by the appropriate entry in the books of the Company or a duly authorized transfer agent of the Company) on the applicable Vesting Date (or as soon as practicable) , but in any event, within the period ending on the later to occur of the date that is 2  1 2 months after the end of (i) the Participant’s tax year that includes the applicable Vesting Date, or (ii) the Company’s tax year that includes the applicable Vesting Date.

(b) Shares issued in respect of RSUs shall be deemed to be issued in consideration of past services actually rendered by the Participant to the Company or an Affiliate or for its benefit for which the Participant has not previously been compensated or for future services to be rendered, as the case may be, which the Company deems to have a value at least equal to the aggregate par value of the Shares subject to RSUs.

5. Tax Withholding Obligations . Regardless of any action the Company or the Participant’s employer (the “Employer”) takes with respect to any or all income tax (including federal, state and local taxes), social insurance, payroll tax, payment on account or other tax-related withholding (“Tax-Related Items”), the Participant acknowledges that the ultimate liability for all Tax-Related Items legally due by the Participant is and remains the Participant’s responsibility and that the Company and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the RSUs, including the grant of the RSUs, the vesting of the RSUs, or the receipt of an equivalent cash payment, the subsequent sale of any Shares acquired at vesting and the receipt of any dividends; and (ii) do not commit to structure the terms of the grant or any aspect of the

 

Page 2 of 15


2007 Stock Incentive Plan RSU Award Agreement for International Participants

 

RSUs to reduce or eliminate the Participant’s liability for Tax-Related Items or achieve any particular tax result.

Prior to the issuance of Shares upon vesting of the RSUs (or any other tax or withholding event), the Participant shall pay, or make arrangements satisfactory to the Company (in the Company’s sole discretion) to satisfy all withholding (and payment on account, where applicable) obligations. In those cases where a prior arrangement has not been made (or where the amount of money provided under the prior arrangement is insufficient to satisfy the obligations for Tax-Related Items), the Company shall withhold a number of whole Shares otherwise deliverable at vesting having a Fair Market Value sufficient to satisfy the statutory minimum (or such higher amount as is allowable without adverse accounting consequences) of the Participant’s estimated obligations for Tax-Related Items applicable to the RSUs; such withholding will result in the issuance to the participant of a lower number of Shares.

The Company and/or the Employer may also, in lieu of or in addition to the foregoing, at the Company’s sole discretion as authorized herein by the Participant, withhold all applicable Tax-Related Items legally payable by the Participant from the Participant’s wages or other cash compensation or to withhold in one of the following ways, as determined by the Company: (i) require the Participant to deposit with the Company an amount of cash sufficient to meet his or her obligation for Tax-Related Items, and/or (ii) sell or arrange for the sale of Shares to be issued on the vesting of the RSUs to satisfy the withholding (or payment on account, when applicable) obligation. If the Participant’s obligation for Tax-Related Items is satisfied as described in (ii) of this section, the Company will endeavor to sell only the number of Shares required to satisfy the Participant’s obligations for Tax-Related Items; however, the Participant agrees that the Company may sell more Shares than necessary to cover the Tax-Related Items and that in such event, the Company will reimburse the Participant for the excess amount withheld, in cash and without interest. The Participant shall pay to the Employer any amount of Tax-Related Items that the Employer may be required to withhold as a result of the Participant’s receipt of the RSUs or the vesting of the RSUs that cannot be satisfied by the means previously described. The Company may refuse to deliver Shares to the Participant if the Participant fails to comply with his or her obligation in connection with the Tax-Related Items as described herein. The Participant hereby consents to any action reasonably taken by the Company and/or the Employer to meet his or her obligation for Tax-Related Items.

Further, in consideration of the grant of the RSUs, no claim or entitlement to compensation or damages arises if, in satisfying the Participant’s (and/or the Employer’s) obligation for Tax-Related Items, the Company and/or the Employer withholds an amount in excess of the amount legally required to be withheld, the Participant irrevocably releases the Company and the Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Agreement, the Participant shall be deemed irrevocably to have waived his or her entitlement to pursue such claim or damages.

6. Restriction on Transferability . Prior to vesting and delivery of the Shares, neither the RSUs, nor the Shares or any beneficial interest therein, may be sold, transferred, pledged, assigned, or otherwise alienated at any time. Any attempt to do so contrary to the provisions hereof shall be null and void. Notwithstanding the above, distribution can be made pursuant to

 

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2007 Stock Incentive Plan RSU Award Agreement for International Participants

 

will, the laws of descent and distribution, and if provided by the Administrator, intra-family transfer instruments, or to an inter vivos trust, or as otherwise provided by the Administrator. The terms of this Agreement shall be binding upon the executors, administrators, heirs, successors and assigns of the Participant.

7. Requirements of Law . The issuance of Shares upon vesting of the RSUs is subject to Section 13 of the Plan, which generally provides that any such issuance shall be subject to compliance by the Company and the Participant with all applicable requirements of law relating thereto and with all applicable regulations of any stock exchange on which the Shares may be listed for trading at the time of such issuance. The inability of the Company to obtain approval from any regulatory body having authority deemed by the Company to be necessary to the lawful issuance of any Shares hereby shall relieve the Company of any liability with respect to the non-issuance of the Shares as to which such approval shall not have been obtained. The Company, however, shall use its reasonable efforts to obtain all such approvals.

8. Rights as Stockholder . The Participant shall not have voting, dividend or any other rights as a stockholder of the Company with respect to the RSUs. Upon settlement of the Participant’s RSUs into Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), the Participant will obtain full voting, dividend and other rights as a stockholder of the Company.

9. No Compensation Deferrals . Neither the Plan nor this Agreement is intended to provide for an elective deferral of compensation that would be subject to Section 409A (“Section 409A”) of the Internal Revenue Code of 1986, as amended (the “Code”). If, notwithstanding the parties’ intent in this regard, at the time of the Participant’s termination of Service, he or she is determined to be a “specified employee” as defined in Code Section 409A, and one or more of the payments or benefits received or to be received by the Participant pursuant to the RSUs would constitute deferred compensation subject to Code Section 409A, no such payment or benefit will be provided under the RSUs until the earliest of (A) the date which is six (6) months after the Participant’s “separation from service” for any reason, other than death or “disability” (as such terms are used in Section 409A(a)(2) of the Code), (B) the date of the Participant’s death or “disability” (as such term is used in Section 409A(a)(2)(C) of the Code), or (C) the effective date of a “change in the ownership or effective control” or a “change in ownership of a substantial portion of the assets” of the Company (as such terms are used in Section 409A(a)(2)(A)(v) of the Code). The provisions of this Section 9 shall only apply to the extent required to avoid the Participant’s incurrence of any additional tax or interest under Code Section 409A or any regulations or U.S. Department of the Treasury (“Treasury”) guidance promulgated thereunder. In addition, if any provision of the RSUs would cause the Participant to incur any additional tax or interest under Code Section 409A or any regulations or Treasury guidance promulgated thereunder, the Company reserves the right, to the extent the Company deems necessary or advisable in its sole discretion, to unilaterally amend or modify the Plan and/or this Agreement to conform it to the maximum extent practicable to the original intent of the applicable provision without violating the provisions of Code Section 409A, including without limitation to limit payment or distribution of any amount of benefit hereunder in connection with a Change in Control to a transaction meeting the definitions referred to in clause (C) above, or in connection with any disability to a “disability” as referred to in (B) above; provided however that the Company makes no representation that these RSUs are not subject to Section 409A nor

 

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2007 Stock Incentive Plan RSU Award Agreement for International Participants

 

makes any undertaking to preclude Section 409A from applying to these RSUs. In addition, to the extent the Company determines it appropriate to accelerate any vesting conditions applicable to this award, then to the extent necessary to avoid the Participant’s incurring any additional tax or interest as a result of such vesting acceleration under Code Section 409A or any regulations or Treasury guidance promulgated thereunder, and notwithstanding Section 4 above, the Company may as a condition to extending such acceleration benefits provide for the Shares to be issued upon settlement of the RSUs to be issued on the earliest date (the “Permitted Distribution Date”) that would obviate application of such additional tax or interest rather than issuing them upon the date on which such vesting is effective as would otherwise be required under Section 2 (or as soon as practicable after such Permitted Distribution Date and in no event later than that last day of the grace period following such date permitted under Code Section 409A).

10. Administration . The Administrator shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation, and application of the Plan as are consistent therewith and to interpret or revoke any such rules. All actions taken and all interpretations and determinations made by the Administrator shall be final and binding upon the Participant, the Company, and all other interested persons. No Administrator shall be personally liable for any action, determination, or interpretation made in good faith with respect to the Plan or this Agreement.

11. Effect on Other Employee Benefit Plans . The value of the RSUs granted pursuant to this Agreement shall not be included as compensation, earnings, salaries, or other similar terms used when calculating the Participant’s benefits under any employee benefit plan sponsored by the Company or any Affiliate, except as such plan otherwise expressly provides. The Company expressly reserves its rights to amend, modify, or terminate any of the Company’s or any Affiliate’s employee benefit plans.

12. No Employment Rights . The award of the RSUs pursuant to this Agreement shall not give the Participant any right to continued Service with the Company or an Affiliate and shall not interfere with the ability of the Employer to terminate the Participant’s Service with the Company at any time with or without cause.

13. Nature of the Grant . In accepting the RSUs, the Participant acknowledges that:

(a) the Plan is established voluntarily by the Company, it is discretionary in nature and may be modified, amended, suspended or terminated by the Company at any time, unless otherwise provided in the Plan and this Agreement;

(b) the grant of the RSUs is voluntary and occasional and does not create any contractual or other right to receive future awards of the RSUs, or benefits in lieu of RSUs even if RSUs have been awarded repeatedly in the past;

(c) all decisions with respect to future grants of RSUs, if any, will be at the sole discretion of the Company;

(d) the Participant’s participation in the Plan is voluntary;

 

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2007 Stock Incentive Plan RSU Award Agreement for International Participants

 

(e) the RSUs are outside the scope of the Participant’s employment contract, if any;

(f) the RSUs are not part of normal or expected compensation or salary for any purpose, including, but not limited to, calculation of any overtime, severance, resignation, termination, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments;

(g) in the event that the Participant is not an employee of the Company, the grant of the RSUs will not be interpreted to form an employment contract or relationship with the Company; and furthermore, the grant of the RSUs will not be interpreted to form an employment contract with the Employer or any Affiliate;

(h) the future value of the underlying Shares is unknown and cannot be predicted with certainty;

(i) if the Participant receives Shares upon vesting of the RSUs, the value of such Shares may increase or decrease in value;

(j) in consideration of the grant of the RSUs, no claim or entitlement to compensation or damages arises from termination of the RSUs or diminution in value of the RSUs or shares received upon vesting of RSUs resulting from termination of the Participant’s Service to the Company or the Employer (for any reason whatsoever and whether or not in breach of local labor laws) and the Participant irrevocably releases the Company and the Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Agreement, the Participant shall be deemed irrevocably to have waived his or her entitlement to pursue such claim.

14. Data Privacy Notice and Consent . The Participant hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of his or her personal data as described in this Agreement by and among, as applicable, the Employer, the Company and its Affiliates for the exclusive purpose of implementing, administering and managing the Participant’s participation in the Plan.

The Participant understands that the Company and the Employer may hold certain personal information about the Participant, including, but not limited to, the Participant’s name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in the Company, details of all RSUs or any other entitlement to shares awarded, canceled, vested, unvested or outstanding in the Participant’s favor, for the purpose of implementing, administering and managing the Plan (“Data”).

The Participant understands that Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in the Participant’s country, or elsewhere, and that the recipient’s country may have different data privacy laws and protections than the Participant’s country. The Participant understands that the Participant may request a list with the names and addresses

 

Page 6 of 15


2007 Stock Incentive Plan RSU Award Agreement for International Participants

 

of any potential recipients of the Data by contacting his or her local human resources representative. The Participant authorizes the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing his or her participation in the Plan, including any requisite transfer of such Data as may be required to a broker, escrow agent or other third party with whom the shares received upon vesting of the RSUs may be deposited. The Participant understands that Data will be held only as long as is necessary to implement, administer and manage his or her participation in the Plan. The Participant understands that he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing his or her local human resources representative. The Participant understands, however, that refusal or withdrawal of consent may affect his or her ability to participate in the Plan. For more information on the consequences of his or her refusal to consent or withdrawal of consent, the Participant understands that he or she may contact his or her local human resources representative.

15. Amendment of Agreement . This Agreement may be amended only by a writing which specifically states that it amends this Agreement. Notwithstanding the foregoing, this Agreement may be amended unilaterally by the Committee by a writing which specifically states that it is amending this Agreement, so long as a copy of such amendment is delivered to the Participant, and provided that no such amendment adversely affects the rights of the Participant. Limiting the foregoing, the Committee reserves the right to change, by written notice to the Participant, the provisions of the RSUs or this Agreement in any way it may deem necessary or advisable to carry out the purpose of the grant as a result of any change in applicable laws or regulations or any future law, regulation, ruling, or judicial decision, or, to the extent permissible under the Plan (including, but not limited to, Sections 10 and 14 of the Plan).

16. Notices . Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of its Administrator. Any notice to be given to the Participant shall be addressed to the Participant at the address listed in the Employer’s records. By a notice given pursuant to this Section, either party may designate a different address for notices. Any notice shall have been deemed given when actually delivered.

17. Severability . The provisions of this Agreement are severable and if all or any part of this Agreement or the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity shall not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid. Any Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid shall, if possible, be construed in a manner which will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful and valid.

18. Construction . The RSUs are being issued pursuant to the Plan and are subject to the terms of the Plan. A copy of the Plan is available upon request during normal business hours at the principal executive offices of the Company. To the extent that any provision of this Agreement violates or is inconsistent with a provision of the Plan, the Plan provision shall govern and any inconsistent provision in this Agreement shall be of no force or effect.

 

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2007 Stock Incentive Plan RSU Award Agreement for International Participants

 

19. Electronic Delivery . The Company may, in its sole discretion, decide to deliver any documents related to the RSUs granted under the Plan and participation in the Plan or future RSUs that may be granted under the Plan by electronic means or to request the Participant’s consent to participate in the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery and, if requested, to agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.

20. Entire Agreement . The Plan is incorporated herein by reference. The Plan and this Agreement constitute the entire agreement of the Company and the Participant with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Participant with respect to the subject matter hereof.

21. Language . If the Participant has received this Agreement or any other document related to the Plan translated into a language other than English and if the translated version is different than the English version, the English version will control.

22. Miscellaneous .

(a) The Company has established the Plan voluntarily, it is discretionary in nature and the Board may terminate, amend, or modify the Plan at any time; provided, however, that no such termination, amendment, or modification of the Plan may in any way adversely affect the Participant’s rights under this Agreement, without the Participant’s written approval unless such termination, amendment, or modification of the Plan is necessary in order to comply with any change in applicable laws or regulations or any future law, regulation, ruling, or judicial decision or as otherwise permissible under the Plan (including, but not limited, to Sections 10 and 14 of the Plan).

(b) All obligations of the Company under the Plan and this Agreement in a Change of Control shall be governed by the Plan, other than as set forth in Section 2(b) above.

(c) To the extent not preempted by United States federal law, this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to its principles of conflict of laws.

23. Country Specific Terms . Appendix A contains additional terms and conditions of the Agreement applicable to Participants residing in those countries. In addition, Appendix A also contains information and notices of exchange control and certain other issues of which the Participant should be aware.

24. Acceptance of Terms and Conditions . By accepting the terms and conditions of this Agreement, the Participant agrees to abide by all of the governing terms and provisions of the Plan and this Agreement. Additionally, the Participant acknowledges having read and understood the terms and conditions of the Plan and this Agreement and has had an opportunity to obtain the advice of counsel prior to accepting this Agreement. The Participant must acknowledge his or her agreement to abide by the terms and conditions of the Plan and Agreement by executing this Agreement electronically or, if otherwise instructed by the Company, by printing and signing a paper copy of this Agreement and returning it to the

 

Page 8 of 15


2007 Stock Incentive Plan RSU Award Agreement for International Participants

 

appropriate Company representative. In addition, the transfer or sale of the shares obtained at vesting by the Participant shall be considered an additional acknowledgment of the terms and conditions contained in the Plan and Agreement.

*    *    *    *    *

PARTICIPANT SIGNATURE

PRINTED NAME

DATE

 

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2007 Stock Incentive Plan RSU Award Agreement for International Participants

 

APPENDIX A

TERMS AND CONDITIONS

This Appendix A, which is part of the Agreement, contains additional terms and conditions of the Agreement that will apply to the Participant if he or she resides in one of the countries listed below. Capitalized terms used but not defined herein shall have the same meanings assigned to them in the Plan and/or the Agreement.

NOTIFICATIONS

This Appendix A also includes information regarding exchange control and certain other issues of which the Participant should be aware with respect to his or her participation in the Plan. The information is based on the securities, exchange control and other laws in effect in the respective countries as of November 2013. Such laws are often complex and change frequently. The Company therefore strongly recommends that the Participant not rely on the information as the only source of information relating to the consequences of his or her participation in the Plan because such information may be outdated when the Participant vests in the RSUs and/or sells any Shares acquired pursuant to the RSUs.

AUSTRIA

Exchange Control Information . If the Participant holds Shares acquired under the Plan outside of Austria, the Participant must submit a report to the Austrian National Bank. An exemption applies if the value of the Shares as of any given quarter does not exceed €30,000,000 or as of December 31 does not exceed €5,000,000. If the former threshold is exceeded, quarterly obligations are imposed; whereas, if the latter threshold is exceeded, annual reports must be provided. The annual reporting date is December 31 and the deadline for filing the annual report is March 31 of the following year.

When the Participant sells Shares acquired under the Plan, there may be exchange control obligations if the cash proceeds are held outside of Austria. If the transaction volume of all accounts abroad exceeds €3,000,000 the movements and balances of all accounts must be reported monthly, as of the last day of the month, on or before the fifteenth day of the following month.

BELGIUM

Tax Reporting Information. You are required to report any bank accounts opened and maintained outside Belgium on your annual tax return.

 

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2007 Stock Incentive Plan RSU Award Agreement for International Participants

 

CHINA (PRC)

Exchange Control Restrictions. The Participant agrees to comply with any requirements that may be imposed by the Company in the future in order to facilitate compliance with exchange control requirements in China. These requirements may include, but are not limited to, immediate repatriation to China of the sale proceeds, an immediate sale of the RSUs at vesting, and/or repatriation of the cash proceeds through a special exchange control account.

FRANCE

Exchange Control Information.  If the Participant imports or exports cash ( e.g. , sales proceeds received under the Plan) with a value equal to or exceeding €7,600 and does not use a financial institution to do so, he or she must submit a report to the customs and excise authorities. If the Participant maintains a foreign bank account, he or she is required to report such account to the French tax authorities when filing his or her annual tax return.

GERMANY

Exchange Control Information.  Cross-border payments in excess of €12,500 must be reported monthly to the German Federal Bank. If the Participant uses a German bank to transfer a cross-border payment in excess of €12,500 under the Plan, the bank will make the report for the Participant.

IRELAND

Director Notification Requirement . If the Participant is a director, shadow director or secretary of an Irish Subsidiary or Related Entity of the Company, pursuant to Section 53 of the Irish Company Act 1990, he or she must notify the Irish Subsidiary or Related Entity of the Company in writing within five (5) business days of receiving or disposing of an interest in the Company ( e.g. , RSUs, Shares, etc.), or within five (5) business days of becoming aware of the event giving rise to the notification requirement, or within five (5) days of becoming a director, shadow director or secretary if such an interest exists at that time. This notification requirement also applies with respect to the interests of a spouse or minor child, whose interests will be attributed to the director, shadow director or secretary.

ISRAEL

No additional provisions apply.

 

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2007 Stock Incentive Plan RSU Award Agreement for International Participants

 

ITALY

Plan Document Acknowledgment. By accepting the terms and conditions of the RSUs, the Participant acknowledges that he or she has received a copy of the Plan and the Agreement and has reviewed the Plan and the Agreement, including this Appendix A, in their entirety and fully understands and accepts all provisions of the Plan and the Agreement.

Data Privacy. In addition to the data privacy provision that is set forth in the Agreement, the Participant also consents to the following additional data privacy-related terms:

I am aware that providing the Company and my Employer with Data is necessary for participation in the Plan and that my refusal to provide such Data may affect my ability to participate in the Plan. The Controller of personal data processing is the Company with registered offices at 4650 Cushing Parkway, Fremont, California, 94538, United States and, pursuant to D.lgs 196/2003, its representatives in Italy are Lam Research S.r.l., with registered offices in Centro Direzionale Colleoni, Palazzo Sirio 3-Ing, 20041 Agrate Brianza-MI, Italy.

I understand that I may at any time exercise the rights acknowledged by Section 7 of Legislative Decree June 30, 2003 n.196, including, but not limited to, the right to access, delete, update, request the rectification of my Data and cease, for legitimate reasons, the data processing. Furthermore, I am aware that my Data will not be used for direct marketing purposes.

Exchange Control Information. Participant is responsible for all reporting requirements regarding (i) any transfers of cash or shares to or from Italy and (ii) any foreign investments or investments (including proceeds from the sale of Shares) held outside of Italy.

JAPAN

Exchange Control Information. If the Participant acquired Shares valued at more than ¥100,000,000 in a single transaction, the Participant must file a Securities Acquisition Report with the Ministry of Finance through the Bank of Japan within 20 days of the purchase of Shares.

KOREA

Exchange Control Information. If the Participant receives US$500,000 or more from the sale of Shares, Korean exchange control laws require the Participant to repatriate the proceeds to Korea within 18 months of the sale.

MALAYSIA

Director Notification Requirement . If the Participant is a Director of the local Subsidiary, he or she must notify the local Subsidiary of the grant and also provide notice of any change in his or her interest in the RSUs ( e.g. vesting or the sale of Shares).

Exchange Control Information. Because exchange control regulations change frequently and without notice, you should consult your legal advisor before selling shares to ensure compliance with current regulations. It is Participant’s responsibility to comply with exchange control laws in Malaysia, and neither the Company nor your employer will be liable for any fines or penalties

 

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2007 Stock Incentive Plan RSU Award Agreement for International Participants

 

resulting from a failure to comply with applicable laws. For purposes of compiling balance of payment statistics on the inflow and outflow of funds from Malaysia, the Bank Negara Malaysia must be notified of any remittance of funds between residents and non-residents of an amount equal to RM200,001 or greater from Malaysia.

NETHERLANDS

Insider-Trading Notification. The Participant should be aware of the Dutch insider-trading rules, which may impact the sale of Shares acquired at vesting of the RSUs. In particular, the Participant may be prohibited from effectuating certain transactions involving Shares if the Participant has inside information about the Company. If the Participant is uncertain whether the insider-trading rules apply to him or her, the Participant should consult his or her personal legal advisor. By accepting the Agreement and participating in the Plan, the Participant acknowledges having read and understood this notification and acknowledges that it is the Participant’s responsibility to comply with the following Dutch insider-trading rules.

SINGAPORE

Director Notification Obligation. If the Participant is a director, associate director or shadow director of a Singaporean Subsidiary or Related Entity of the company, the Participant is subject to certain notification requirements under the Singapore Companies Act. Among these requirements is an obligation to notify the Singaporean Subsidiary or Related Entity of the Company in writing when the Participant receives an interest ( e.g. , RSUs or Shares) in the Company or any Subsidiary or Related Entity of the Company. In addition, the Participant must notify the Singaporean Subsidiary or Related Entity of the Company when the Participant sells Shares or shares of any Subsidiary or Related Entity of the Company (including when the Participant sells Shares acquired at vesting of the RSUs). These notifications must be made within two (2) days of acquiring or disposing of any interest in the Company or any Subsidiary or Related Entity of the Company. In addition, a notification of the Participant’s interests in the Company or any Subsidiary or Related Entity of the Company must be made within two (2) days of becoming a director.

Tax Information . The Participant may be eligible for certain tax favored schemes applicable to RSUs. The participant should consult with his or her tax advisor to determine if these tax favorable schemes apply to his or her situation.

SLOVAKIA

Exchange Control Information . It is the Participant’s obligation to comply with exchange control requirements in the Slovakia Republic, including any notification requirements applicable to opening or maintaining any foreign bank or brokerage accounts.

SLOVENIA

No additional provisions apply.

 

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2007 Stock Incentive Plan RSU Award Agreement for International Participants

 

SWITZERLAND

Securities Law Information. The offer of the RSUs is considered a private offering in Switzerland and is therefore not subject to securities registration in Switzerland.

TAIWAN

Exchange Control Information. The Participant may acquire and remit foreign currency (including funds for the purchase of Shares and proceeds from the sale of Shares) up to US$5,000,000 per year without prior approval.

If the transaction amount is TWD500,000 or more in a single transaction, the Participant must submit a Foreign Exchange Transaction Form. If the transaction amount is US$500,000 or more in a single transaction, the Participant must also provide supporting documentation to the satisfaction of the remitting bank.

UNITED KINGDOM

Securities Requirement. Due to legal requirements, all RSUs at the time of vesting will be settled in Shares.

 

Page 14 of 15


LAM RESEARCH CORPORATION

2007 Stock Incentive Plan

Restricted Stock Unit Award Agreement

EXHIBIT A

Participant (Name & Employee Number):

Grant Date:

Number of RSUs :

 

Vesting Date(s):  

[Insert Number] RSUs on [Insert Date]

 

[Insert Number] RSUs on [Insert Date]

 

[Insert Number] RSUs on [Insert Date]

Leave of Absence: 31 st day (or 91 st day if reemployment guaranteed by statute or contract)

 

Page 15 of 15

Exhibit 10.3

LAM RESEARCH CORPORATION

2007 Stock Incentive Plan

Nonstatutory Stock Option Award Agreement

(U.S. Participants)

Pursuant to the terms of the 2007 Stock Incentive Plan (the “Plan”) Lam Research Corporation, a Delaware corporation (the “Company”), hereby grants Options to the Optionee on the terms and conditions as set forth in this Nonstatutory Stock Option Award Agreement (including the attached Exhibit A) (the “Agreement”) and the Plan. Capitalized terms used but not defined in this Agreement shall have the meaning specified in the Plan. The Options are granted on the Grant Date. This Agreement is effective as of the Grant Date.

NOW, THEREFORE , it is hereby agreed as follows:

1. Award of Options . Subject to the terms and conditions of this Agreement and the Plan (the terms of which are incorporated herein by reference) and effective as of the Grant Date, the Company hereby grants to the Optionee a Number of Options to purchase Shares at the designated Exercise Price for each Share granted under these Options. The total Number of Options and the Exercise Price are set forth in Exhibit A.

2. Nature of the Options . These Options are intended by the Company and the Optionee to be nonstatutory stock options, and do not qualify for any special tax benefits to the Optionee. These Options are not Incentive Stock Options.

3. Vesting/Exercise of Options .

(a) Subject to the terms and conditions of this Agreement and provided that the Optionee continues to provide Service (as defined in Section 6 below) to the Company (or any Affiliate) through the applicable Vesting Date(s) as set forth in Exhibit A, these Options shall vest and become exercisable during its term as follows:

 

  (i) These Options will vest and become exercisable pursuant to the Vesting Date(s) set forth in Exhibit A.

 

  (ii) These Options may not be exercised for a fraction of a Share.

 

  (iii) In the event of Optionee’s death, disability or other termination of Service, the vesting and exercisability of the Shares is governed by Sections 3(d), 6, 7 and 8 below and, where applicable, Exhibit A. Notwithstanding anything to the contrary, if the Optionee has an Employment or Change in Control Agreement with the Company that provides for more favorable exercise periods under the circumstances set forth in Sections 3(d), 6, 7 and 8 below, such provisions shall apply.

 

Page 1 of 10


2007 Stock Incentive Plan Option Award Agreement for U.S. Optionees

 

(b) These Options are exercisable by delivery of an exercise notice or in such other form as permitted generally by the Company and designated by the Company (the “Exercise Notice”), which shall state the election to exercise the Options, the number of Options being exercised (the “Exercised Shares”), and such other representations and agreements as may be required by the Company pursuant to the provisions of the Plan. The Exercise Notice shall be completed by the Optionee and delivered to the Administrator of the Company. The Exercise Notice shall be accompanied by payment of the aggregate Exercise Price as to all Exercised Shares. These Options shall be deemed to be exercised upon receipt by the Company of such fully executed Exercise Notice accompanied by such aggregate Exercise Price.

(c) These Options may not be exercised after the Expiration Date as set forth in Exhibit A and may be exercised during such term only in accordance with the Plan and the terms of this Agreement.

(d) In the event of a Change of Control of the Company, the Options are governed by Section 10 of the Plan (subject to the terms of any applicable Employment or Change in Control Agreement).

4. Method of Payment . Unless otherwise determined by the Administrator in accordance with Section 6 or otherwise of the Plan, payment of the exercise price shall be made by cash, cash equivalent, through a cashless exercise program, or pursuant to a net exercise program (which may be required by the Administrator).

5. Restrictions on Exercise . These Options may not be exercised if the issuance of Shares upon exercise or the method of payment of consideration for such Shares would constitute a violation of any applicable federal or state securities or other law or regulation, or the requirement of any stock exchange on which the Company’s shares may be listed for trading at the time of issuance. The inability of the Company to obtain approval from any regulatory body having authority deemed by the Company to be necessary to the lawful issuance of any Company Share hereby shall relieve the Company of any liability with respect to the non-issuance of the Company Share as to which such approval shall not have been obtained. The Company, however, shall use its reasonable efforts to obtain all such approvals.

6. Termination of Service and Leave of Absence .

(a) For purposes of this Agreement, “Service” shall mean the performance of services for the Company (or any Affiliate) in the capacity of an Employee or Company Director and shall be considered terminated on the later of the last day the Optionee is on payroll or the last day of Service as a director for a Company Director.

(b) If Optionee’s Service terminates for any reason (whether voluntary or involuntary, with or without cause) other than as a result of disability or death, Optionee may, but only within the number of days as set forth in Exhibit A after the date such Service terminates and in no event beyond the Expiration Date, exercise these Options to the extent that the Options had vested and Optionee was entitled to exercise the Options at the date such Service terminated; provided that if such termination is not for cause and at the date of such termination the Optionee satisfies the definition of Retirement, as set forth in Exhibit A, the post termination

 

Page 2 of 10


2007 Stock Incentive Plan Option Award Agreement for U.S. Optionees

 

exercise period shall be extended for an additional period as set forth in Exhibit A and in no event beyond the Expiration Date (such extended period being called the “Retirement Extended Exercise Period”). Notwithstanding anything above to the contrary, if at any time during the Retirement Extended Exercise Period, the Optionee directly or indirectly, either as an employee, employer, consultant, agent, principal, partner, shareholder (other than of a mutual fund owning an interest in a company that engages or assists any third party in engaging in any business competitive with the Company (or any Affiliate)), corporate officer, director or in any other capacity, engages or assists any third party in engaging in any business competitive with the Company (or any Affiliate); then all outstanding unvested Options shall immediately terminate and all outstanding vested unexercised Options shall immediately terminate. To the extent that certain Options had not vested or Optionee was not entitled to exercise these Options at the date such Service ceased, or if Optionee does not exercise these Options within the time specified herein, the Options shall be cancelled by the Company.

(c) Vesting of the Options will be suspended and vesting credit will no longer accrue as of the designated day of the leave of absence as set forth in Exhibit A, unless otherwise determined by the Administrator or required by contract or statute. If the Optionee returns to Service immediately after the end of an approved leave of absence, vesting credit shall continue to accrue from that date of continued Service.

7. Disability of Optionee . If the Optionee’s Service terminates as a result of a disability (as determined by the Administrator), a portion of the Options granted to the Optionee shall vest and be exercisable on the date the disability is incurred. To determine the applicable number of Options, the Number of Options (as set forth in Exhibit A) shall be multiplied by the greater of (x) 50% or (y) the percentage of full months worked from the Grant Date until the date the disability is incurred (the “Disability Vesting Date”) over the total number of full months from the Grant Date until the last Vesting Date (as set forth in Exhibit A). Any remaining unvested portion of the Options shall be cancelled. If Optionee’s Service terminates as a result of a disability (as determined by the Administrator), Optionee may, but only within the period as set forth in Exhibit A from the date of termination of Service, exercise the Options to the extent Optionee was entitled to exercise them at the date of such termination of Service and in no event beyond the Expiration Date. To the extent that the Shares had not vested or Optionee was not entitled to exercise the Options at the date of termination of Service, or if Optionee does not exercise these Options within the time specified herein, the Options shall be cancelled by the Company.

8. Death of Optionee . In the event of termination of the Optionee’s Service due to death, a portion of the Options granted to the Optionee shall vest on the date of death. To determine the applicable number of Options, the Number of Options (as set forth in Exhibit A) shall be multiplied by the greater of (x) 50% or (y) the percentage of full months worked from the Grant Date until the date of death (the “Death Vesting Date”, and collectively, with the Vesting Date(s) set forth in Exhibit A, and the “Disability Vesting Date”, the “Vesting Date”) over the total number of full months from the Grant Date until the last Vesting Date (as set forth in Exhibit A). Any remaining portion of the Options that had not vested or that the Optionee was not entitled to exercise at the date of termination of Service shall be cancelled. In the event of termination of the Optionee’s Service due to death, the Options may be exercised at any time within the period as set forth in Exhibit A following the date of death by the personal

 

Page 3 of 10


2007 Stock Incentive Plan Option Award Agreement for U.S. Optionees

 

representative of the Optionee’s estate or by a person to whom the Options were transferred pursuant to the Optionee’s will or in accordance with the laws of descent and distribution, but only to the extent the Options had vested and were exercisable as of the date of Optionee’s death and in no event beyond the Expiration Date.

9. Restriction on Transferability . Prior to exercise and delivery of the Shares, neither the Options, nor the Shares or any beneficial interest therein, may be sold, transferred, pledged, assigned, or otherwise alienated at any time. Any attempt to do so contrary to the provisions hereof shall be null and void. Notwithstanding the above, distribution can be made pursuant to will, the laws of descent and distribution, and if provided by the Administrator, intra-family transfer instruments, or to an inter vivos trust, or as otherwise provided by the Administrator. The terms of this Agreement shall be binding upon the executives, administrators, heirs, successors and assigns of the Optionee.

10. Tax Requirements . Regardless of any action the Company or the Optionee’s employer (the “Employer”) takes with respect to any or all income tax, social insurance, payroll tax, or other tax-related items related to the Optionee’s participation in the Plan and legally applicable to the Optionee (“Tax-Related Items”), the Optionee acknowledges that the ultimate liability for all Tax-Related Items is and remains the Optionee’s responsibility and may exceed the amount actually withheld by the Company or the Employer. The Optionee further acknowledges that the Company and/or the Employer (1) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Options, including, but not limited to, the grant, vesting, exercise/settlement of the Options, the issuance of Shares upon settlement of the Options, the subsequent sale of Shares acquired pursuant to such issuance and the receipt of any dividends and/or any dividend equivalents; and (2) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the Options to reduce or eliminate the Optionee’s liability for Tax-Related Items or achieve any particular tax result.

Prior to any relevant taxable or tax withholding event, the Optionee will pay or make adequate arrangements satisfactory to the Company (in the Company’s sole discretion) to satisfy all withholding obligations. In this regard, in those cases where no such prior arrangement has been made (or where the amount of money provided is insufficient to satisfy the applicable obligations) the Optionee authorizes the Company and/or the Employer, in their discretion, to satisfy the obligations with regard to all Tax-Related Items by one or a combination of the following: (i) withholding from the Optionee’s wages or other cash compensation paid to the Optionee; (ii) withholding from proceeds of the sale of Shares acquired upon exercise of the Options through a sale arranged by the Company (on the Optionee’s behalf pursuant to this authorization); or (iii) withholding in Shares to be issued upon exercise of the Options.

If the Optionee’s obligation is satisfied as described in (ii) of this Section, the Company will endeavor to only sell only the number of Shares required to satisfy the Optionee’s obligations for Tax-Related Items; however the Optionee agrees that the Company may sell more Shares than necessary to cover the Tax-Related Item, and that in such event, the Company will reimburse the Optionee for the excess amount withheld, in cash and without interest. If the Optionee’s obligations are satisfied as described in (iii) of this Section, the Company shall withhold a number of Shares otherwise deliverable at exercise having a Fair Market Value

 

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2007 Stock Incentive Plan Option Award Agreement for U.S. Optionees

 

sufficient to satisfy the statutory minimum (or such higher amount as is acceptable without adverse accounting consequences) of the Optionee’s estimated tax obligations. The Optionee is deemed to have been issued the full number of Shares subject to the exercise, notwithstanding that a number of the Shares are held back solely for the purpose of paying the Tax-Related Items due as a result of any aspect of the Optionee’s participation in the Plan.

The Optionee shall pay to the Employer any amount of Tax-Related Items that the Employer may be required to withhold as a result of the Optionee’s participation in the Plan that cannot be satisfied by the means previously described. The Company may refuse to issue or deliver the Shares or the proceeds of the sale of Shares, if the Optionee fails to comply with the Optionee’s obligations in connection with the Tax-Related Items.

Further, in consideration of the grant of the Options, no claim or entitlement to compensation or damages arises if, in satisfying the Optionee’s (and/or the Employer’s) obligation for Tax-Related Items, the Company and/or the Employer withholds an amount in excess of the amount legally required to be withheld, the Optionee irrevocably releases the Company and the Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Agreement, the Optionee shall be deemed irrevocably to have waived his or her entitlement to pursue such claim or damages.

11. No Employment Rights . The award of the Options pursuant to this Agreement shall not give the Optionee any right to continued service with the Company or an Affiliate and shall not interfere with the ability of the Employee to terminate the Optionee’s Service with the Company at any time with or without cause.

12. Severability . The provisions of this Agreement are severable and if all or any part of this Agreement or the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity shall not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid. Any Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid shall, if possible, be construed in a manner which will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful and valid.

13. Rights as Stockholder . The Optionee shall not have voting, dividend or any other rights as a stockholder of the Company with respect to the Options. Upon exercise of the Optionee’s Options into Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), the Optionee will obtain full voting, dividend and other rights as a stockholder of the Company.

14. Administration . The Administrator shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation, and application of the Plan as are consistent therewith and to interpret or revoke any such rules. All actions taken and all interpretations and determinations made by the Administrator shall be final and binding upon the Optionee, the Company, and all other interested persons. No Administrator shall be personally liable for any action, determination, or interpretation made in good faith with respect to the Plan or this Agreement.

 

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2007 Stock Incentive Plan Option Award Agreement for U.S. Optionees

 

15. Effect on Other Employee Benefit Plans . The value of the Options granted pursuant to this Agreement shall not be included as compensation, earnings, salaries, or other similar terms used when calculating the Optionees’s benefits under any employee benefit plan sponsored by the Company or any Affiliate, except as such plan otherwise expressly provides. The Company expressly reserves its rights to amend, modify, or terminate any of the Company’s or any Affiliate’s employee benefit plans.

16. Nature of the Grant . In accepting the Options, the Optionee acknowledges that:

(a) the Plan is established voluntarily by the Company, it is discretionary in nature and may be modified, amended, suspended or terminated by the Company at any time, unless otherwise provided in the Plan and this Agreement;

(b) the grant of the Options is voluntary and occasional and does not create any contractual or other right to receive future awards of options, or benefits in lieu of options even if options have been awarded repeatedly in the past;

(c) all decisions with respect to future grants of options, if any, will be at the sole discretion of the Company;

(d) the Optionee’s participation in the Plan is voluntary;

(e) the Options do not constitute compensation of any kind for services rendered to the Company or to the Employer, and the Options are outside the scope of the Optionee’s employment contract, if any;

(f) the Options are not part of normal or expected compensation or salary for any purpose, including, but not limited to, calculation of any overtime, severance, resignation, termination, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments and in no event should be considered as compensation for, or relating in any way to, past services for the Company or the Employer;

(g) in the event that the Optionee is not an Employee, the grant of the Options will not be interpreted to form an employment contract or relationship with the Company; and furthermore, the grant of the Options will not be interpreted to form an employment contract with the Employer or any Affiliate;

(h) the future value of the underlying Shares is unknown and cannot be predicted with certainty;

(i) if the Optionee receives Shares upon exercise of the Options, the value of such Shares may increase or decrease in value;

(j) in consideration of the grant of the Options, no claim or entitlement to compensation or damages arises from termination of the Options or diminution in value of the Options or Shares received upon vesting of the Options resulting from termination of the Optionee’s Service to the Company or the Employer (for any reason whatsoever and whether or not in breach of local labor laws) and the Optionee irrevocably releases the Company and the

 

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2007 Stock Incentive Plan Option Award Agreement for U.S. Optionees

 

Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Agreement, the Optionee shall be deemed irrevocably to have waived his or her entitlement to pursue such claim.

17. Data Privacy Notice and Consent . The Optionee hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of his or her personal data as described in this Agreement by and among, as applicable, the Employer, the Company and its Affiliates for the exclusive purpose of implementing, administering and managing the Optionee’s participation in the Plan.

The Optionee understands that the Company and the Employer may hold certain personal information about the Optionee, including, but not limited to, the Optionee’s name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any Shares or directorships held in the Company, details of all options or any other entitlement to Shares awarded, canceled, vested, unvested or outstanding in the Optionee’s favor, for the purpose of implementing, administering and managing the Plan (“Data”).

The Optionee understands that Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in the Optionee’s country, or elsewhere, and that the recipient’s country may have different data privacy laws and protections than the Optionee’s country. The Optionee understands that the Optionee may request a list with the names and addresses of any potential recipients of the Data by contacting his or her local human resources representative. The Optionee authorizes the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing his or her participation in the Plan, including any requisite transfer of such Data as may be required to a broker, escrow agent or other third party with whom the Shares received upon exercise of the Options may be deposited. The Optionee understands that Data will be held only as long as is necessary to implement, administer and manage his or her participation in the Plan. The Optionee understands that he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing his or her local human resources representative. The Optionee understands, however, that refusal or withdrawal of consent may affect his or her ability to participate in the Plan. For more information on the consequences of his or her refusal to consent or withdrawal of consent, the Optionee understands that he or she may contact his or her local human resources representative.

18. Amendment of Agreement . This Agreement may be amended only by a writing which specifically states that it amends this Agreement. Notwithstanding the foregoing, this Agreement may be amended unilaterally by the Committee by a writing which specifically states that it is amending this Agreement, so long as a copy of such amendment is delivered to the Optionee, and provided that no such amendment adversely affects the rights of the Optionee. Limiting the foregoing, the Committee reserves the right to change, by written notice to the Optionee, the provisions of the Options or this Agreement in any way it may deem necessary or

 

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2007 Stock Incentive Plan Option Award Agreement for U.S. Optionees

 

advisable to carry out the purpose of the grant as a result of any change in applicable laws or regulations or any future law, regulation, ruling, or judicial decision, or, to the extent permissible under the Plan (including, but not limited to, Sections 10 and 14 of the Plan).

19. Notices . Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of its Stock Administrator. Any notice to be given to the Optionee shall be addressed to the Optionee at the address listed in the Employer’s records. By a notice given pursuant to this Section, either party may designate a different address for notices. Any notice shall have been deemed given when actually delivered.

20. Construction . The Options are being issued pursuant to the Plan and are subject to the terms of the Plan. A copy of the Plan is available upon request during normal business hours at the principal executive offices of the Company. To the extent that any provision of this Agreement violates or is inconsistent with a provision of the Plan, the Plan provision shall govern and any inconsistent provision in this Agreement shall be of no force or effect.

21. Entire Agreement . The Plan is incorporated herein by reference. The Plan and this Agreement constitute the entire agreement of the Company and the Optionee with respect to the subject matter hereof and, unless indicated otherwise herein, supersede in their entirety all prior undertakings and agreements of the Company and the Optionee with respect to the subject matter hereof.

22. Language . If the Optionee has received this Agreement or any other document related to the Plan translated into a language other than English and if the translated version is different than the English version, the English version will control.

23. Electronic Delivery . The Company may, in its sole discretion, decide to deliver any documents related to the Options granted under the Plan and participation in the Plan or future options that may be granted under the Plan by electronic means or to request the Optionee’s consent to participate in the Plan by electronic means. The Optionee hereby consents to receive such documents by electronic delivery and, if requested, to agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.

24. Miscellaneous .

(a) The Company has established the Plan voluntarily, it is discretionary in nature and the Board may terminate, amend, or modify the Plan at any time; provided, however, that no such termination, amendment, or modification of the Plan may in any way adversely affect the Optionee’s rights under this Agreement, without the Optionee’s written approval unless such termination, amendment, or modification of the Plan is necessary in order to comply with any change in applicable laws or regulations or any future law, regulation, ruling, or judicial decision or as otherwise permissible under the Plan (including, but not limited to, Sections 10 and 14 of the Plan).

(b) All obligations of the Company under the Plan and this Agreement in a Change of Control shall be governed by the Plan, other than as set forth in Section 3(a)(iii) above.

 

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2007 Stock Incentive Plan Option Award Agreement for U.S. Optionees

 

(c) To the extent not preempted by federal law, this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to its principles of conflict of laws.

25. Acceptance of Terms and Conditions . By accepting the terms and conditions applicable to the Options, the Optionee agrees to abide by all of the governing terms and provisions of the Plan and this Agreement. Additionally, the Optionee acknowledges having read and understood the terms and conditions of the Plan and this Agreement and has had an opportunity to obtain the advice of counsel prior to accepting this Agreement. The Optionee must accept his or her agreement to abide by the terms and conditions of the Plan and Agreement by executing this Agreement electronically or, if otherwise instructed by the Company, by printing and signing a paper copy of this Agreement and returning it to the appropriate Company representative. In addition, the exercise of these Options shall be considered an additional acknowledgment of the terms and conditions contained in the Plan and Agreement.

*    *    *    *    *

 

OPTIONEE SIGNATURE   
PRINTED NAME   
DATE   

 

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LAM RESEARCH CORPORATION

2007 Stock Incentive Plan

Nonstatutory Stock Option Award Agreement

EXHIBIT A

Optionee (Name & Employee Number):

Grant Date:

Number of Options :

Exercise Price:

 

Vesting Date(s):  

[Insert Number] Options on [Insert Date]

 

[Insert Number] Options on [Insert Date]

 

[Insert Number] Options on [Insert Date]

Expiration Date: 7 years from the Grant Date

Leave of Absence: 31st day (or 91st day if reemployment guaranteed by statute or contract)

Termination of Service Provisions:

Any Reason (except death, disability and Retirement): 90 days

Death: 12 months

Disability: 12 months

Retirement Extended Exercise Period: 90 days plus an additional 21 months

Retirement: At least 55 years old and has completed at least 5 years of Service

 

Page 10 of 10

Exhibit 10.4

LAM RESEARCH CORPORATION

2007 Stock Incentive Plan

Nonstatutory Stock Option Award Agreement

(International Participants)

Pursuant to the terms of the 2007 Stock Incentive Plan (the “Plan”) Lam Research Corporation, a Delaware corporation (the “Company”), hereby grants Options to the Optionee on the terms and conditions as set forth in this Nonstatutory Stock Option Award Agreement (including the attached Exhibit A) (the “Agreement”) and the Plan. Capitalized terms used but not defined in this Agreement shall have the meaning specified in the Plan. The Options are granted on the Grant Date. This Agreement is effective as of the Grant Date.

NOW, THEREFORE , it is hereby agreed as follows:

1. Award of Options . Subject to the terms and conditions of this Agreement and the Plan (the terms of which are incorporated herein by reference) and effective as of the Grant Date, the Company hereby grants to the Optionee a Number of Options to purchase Shares at the designated Exercise Price for each Share granted under these Options. The total Number of Options and the Exercise Price are set forth in Exhibit A.

2. Nature of the Options . These Options are intended by the Company and the Optionee to be nonstatutory stock options, and do not qualify for any special tax benefits to the Optionee. These Options are not Incentive Stock Options.

3. Vesting/Exercise of Options .

(a) Subject to the terms and conditions of this Agreement and provided that the Optionee continues to provide Service (as defined in Section 6 below) to the Company (or any Affiliate) through the applicable Vesting Date(s) as set forth in Exhibit A, these Options shall vest and become exercisable during their term as follows:

 

  (i) These Options will vest and become exercisable pursuant to the Vesting Date(s) set forth in Exhibit A.

 

  (ii) These Options may not be exercised for a fraction of a Share.

 

  (iii) In the event of Optionee’s death, disability or other termination of Service, the vesting and exercisability of the Shares is governed by Sections 3(d), 6, 7 and 8 below and, where applicable, Exhibit A. Notwithstanding anything to the contrary, if the Optionee has an Employment or Change in Control Agreement with the Company that provides for more favorable exercise periods under the circumstances set forth in Sections 3(d), 6, 7 and 8 below, such provisions shall apply.

 

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2007 Stock Incentive Plan Option Award Agreement for International Optionees

 

(b) These Options are exercisable by delivery of an exercise notice or in such other form as permitted generally by the Company and designated by the Company (the “Exercise Notice”), which shall state the election to exercise the Options, the number of Options being exercised (the “Exercised Shares”), and such other representations and agreements as may be required by the Company pursuant to the provisions of the Plan. The Exercise Notice shall be completed by the Optionee and delivered to the Administrator of the Company. The Exercise Notice shall be accompanied by payment of the aggregate Exercise Price as to all Exercised Shares. These Options shall be deemed to be exercised upon receipt by the Company of such fully executed Exercise Notice accompanied by such aggregate Exercise Price.

(c) These Options may not be exercised after the Expiration Date as set forth in Exhibit A and may be exercised during such term only in accordance with the Plan and the terms of this Agreement.

(d) In the event of a Change of Control of the Company, the Options are governed by Section 10 of the Plan (subject to the terms of any applicable Employment or Change in Control Agreement).

4. Method of Payment . Unless otherwise determined by the Administrator in accordance with Section 6 or otherwise of the Plan, payment of the exercise price shall be made by cash, cash equivalent, through a cashless exercise program, or pursuant to a net exercise program (which may be required by the Administrator).

5. Restrictions on Exercise . These Options may not be exercised if the issuance of Shares upon exercise or the method of payment of consideration for such Shares would constitute a violation of any applicable federal or state securities or other law or regulation, or the requirement of any stock exchange on which the Company’s shares may be listed for trading at the time of issuance. The inability of the Company to obtain approval from any regulatory body having authority deemed by the Company to be necessary to the lawful issuance of any Company Shares hereby shall relieve the Company of any liability with respect to the non-issuance of the Company Shares as to which such approval shall not have been obtained. The Company, however, shall use its reasonable efforts to obtain all such approvals.

6. Termination of Service and Leave of Absence .

(a) For purposes of this Agreement, “Service” shall mean the performance of services for the Company (or any Affiliate) in the capacity of an Employee or Company Director and shall be considered terminated on the later of the last day the Optionee is on payroll or the last day of Service as a director for a Company Director.

(b) If Optionee’s Service terminates for any reason (whether voluntary or involuntary, with or without cause) other than as a result of disability or death, Optionee may, but only within the number of days as set forth in Exhibit A after the date such Service terminates and in no event beyond the Expiration Date, exercise these Options to the extent that the Options had vested and Optionee was entitled to exercise the Options at the date such Service terminated; provided that if such termination is not for cause and at the date of such termination the Optionee satisfies the definition of Retirement, as set forth in Exhibit A, the post termination

 

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2007 Stock Incentive Plan Option Award Agreement for International Optionees

 

exercise period shall be extended for an additional period as set forth in Exhibit A and in no event beyond the Expiration Date (such extended period being called the “Retirement Extended Exercise Period”). Notwithstanding anything above to the contrary, if at any time during the Retirement Extended Exercise Period, the Optionee directly or indirectly, either as an employee, employer, consultant, agent, principal, partner, shareholder (other than of a mutual fund owning an interest in a company that engages or assists any third party in engaging in any business competitive with the Company (or any Affiliate)), corporate officer, director or in any other capacity, engages or assists any third party in engaging in any business competitive with the Company (or any Affiliate); then all outstanding unvested Options shall immediately terminate and all outstanding vested unexercised Options shall immediately terminate. To the extent that certain Options had not vested or Optionee was not entitled to exercise these Options at the date such Service ceased, or if Optionee does not exercise these Options within the time specified herein, the Options shall be cancelled by the Company.

(c) Vesting of the Options will be suspended and vesting credit will no longer accrue as of the designated day of the leave of absence as set forth in Exhibit A, unless otherwise determined by the Administrator or required by contract or statute. If the Optionee returns to Service immediately after the end of an approved leave of absence, vesting credit shall continue to accrue from that date of continued Service.

7. Disability of Optionee . If the Optionee’s Service terminates as a result of a disability (as determined by the Administrator), a portion of the Options granted to the Optionee shall vest and be exercisable on the date the disability is incurred. To determine the applicable number of Options, the Number of Options (as set forth in Exhibit A) shall be multiplied by the greater of (x) 50% or (y) the percentage of full months worked from the Grant Date until the date the disability is incurred (the “Disability Vesting Date”) over the total number of full months from the Grant Date until the last Vesting Date (as set forth in Exhibit A). Any remaining unvested portion of the Options shall be cancelled. If Optionee’s Service terminates as a result of a disability (as determined by the Administrator), Optionee may, but only within the period as set forth in Exhibit A from the date of termination of Service, exercise the Options to the extent Optionee was entitled to exercise them at the date of such termination of Service and in no event beyond the Expiration Date. To the extent that the Shares had not vested or Optionee was not entitled to exercise the Options at the date of termination of Service, or if Optionee does not exercise these Options within the time specified herein, the Options shall be cancelled by the Company.

8. Death of Optionee . In the event of termination of the Optionee’s Service due to death, a portion of the Options granted to the Optionee shall vest on the date of death. To determine the applicable number of Options, the Number of Options (as set forth in Exhibit A) shall be multiplied by the greater of (x) 50% or (y) the percentage of full months worked from the Grant Date until the date of death (the “Death Vesting Date”, and collectively, with the Vesting Date(s) set forth in Exhibit A, and the “Disability Vesting Date”, the “Vesting Date”) over the total number of full months from the Grant Date until the last Vesting Date (as set forth in Exhibit A). Any remaining portion of the Options that had not vested or that the Optionee was not entitled to exercise at the date of termination of Service shall be cancelled. In the event of termination of the Optionee’s Service due to death, the Options may be exercised at any time within the period as set forth in Exhibit A following the date of death by the personal

 

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2007 Stock Incentive Plan Option Award Agreement for International Optionees

 

representative of the Optionee’s estate or by a person to whom the Options were transferred pursuant to the Optionee’s will or in accordance with the laws of descent and distribution, but only to the extent the Options had vested and were exercisable as of the date of Optionee’s death and in no event beyond the Expiration Date.

9. Restriction on Transferability . Prior to exercise and delivery of the Shares, neither the Options, nor the Shares or any beneficial interest therein, may be sold, transferred, pledged, assigned, or otherwise alienated at any time. Any attempt to do so contrary to the provisions hereof shall be null and void. Notwithstanding the above, distribution can be made pursuant to will, the laws of descent and distribution, and if provided by the Administrator, intra-family transfer instruments, or to an inter vivos trust, or as otherwise provided by the Administrator. The terms of this Agreement shall be binding upon the executives, administrators, heirs, successors and assigns of the Optionee.

10. Tax Requirements . Regardless of any action the Company or the Optionee’s employer (the “Employer”) takes with respect to any or all income tax, social insurance, payroll tax, or other tax-related items related to the Optionee’s participation in the Plan and legally applicable to the Optionee (“Tax-Related Items”), the Optionee acknowledges that the ultimate liability for all Tax-Related Items is and remains the Optionee’s responsibility and may exceed the amount actually withheld by the Company or the Employer. The Optionee further acknowledges that the Company and/or the Employer (1) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Options, including, but not limited to, the grant, vesting, exercise/settlement of the Options, the issuance of Shares upon settlement of the Options, the subsequent sale of Shares acquired pursuant to such issuance and the receipt of any dividends and/or any dividend equivalents; and (2) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the Options to reduce or eliminate the Optionee’s liability for Tax-Related Items or achieve any particular tax result.

Prior to any relevant taxable or tax withholding event, the Optionee will pay or make adequate arrangements satisfactory to the Company (in the Company’s sole discretion) to satisfy all withholding obligations. In this regard, in those cases where no such prior arrangement has been made (or where the amount of money provided is insufficient to satisfy the applicable obligations) the Optionee authorizes the Company and/or the Employer, in their discretion, to satisfy the obligations with regard to all Tax-Related Items by one or a combination of the following: (i) withholding from the Optionee’s wages or other cash compensation paid to the Optionee; (ii) withholding from proceeds of the sale of Shares acquired upon exercise of the Options through a sale arranged by the Company (on the Optionee’s behalf pursuant to this authorization); or (iii) withholding in Shares to be issued upon exercise of the Options.

If the Optionee’s obligation is satisfied as described in (ii) of this Section, the Company will endeavor to only sell only the number of Shares required to satisfy the Optionee’s obligations for Tax-Related Items; however the Optionee agrees that the Company may sell more Shares than necessary to cover the Tax-Related Item, and that in such event, the Company will reimburse the Optionee for the excess amount withheld, in cash and without interest. If the Optionee’s obligations are satisfied as described in (iii) of this Section, the Company shall withhold a number of Shares otherwise deliverable at exercise having a Fair Market Value

 

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2007 Stock Incentive Plan Option Award Agreement for International Optionees

 

sufficient to satisfy the statutory minimum (or such higher amount as is acceptable without adverse accounting consequences) of the Optionee’s estimated tax obligations. The Optionee is deemed to have been issued the full number of Shares subject to the exercise, notwithstanding that a number of the Shares are held back solely for the purpose of paying the Tax-Related Items due as a result of any aspect of the Optionee’s participation in the Plan.

The Optionee shall pay to the Employer any amount of Tax-Related Items that the Employer may be required to withhold as a result of the Optionee’s participation in the Plan that cannot be satisfied by the means previously described. The Company may refuse to issue or deliver the Shares or the proceeds of the sale of Shares, if the Optionee fails to comply with the Optionee’s obligations in connection with the Tax-Related Items.

Further, in consideration of the grant of the Options, no claim or entitlement to compensation or damages arises if, in satisfying the Optionee’s (and/or the Employer’s) obligation for Tax-Related Items, the Company and/or the Employer withholds an amount in excess of the amount legally required to be withheld, the Optionee irrevocably releases the Company and the Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Agreement, the Optionee shall be deemed irrevocably to have waived his or her entitlement to pursue such claim or damages.

11. No Employment Rights . The award of the Options pursuant to this Agreement shall not give the Optionee any right to continued service with the Company or an Affiliate and shall not interfere with the ability of the Employee to terminate the Optionee’s Service with the Company at any time with or without cause.

12. Severability . The provisions of this Agreement are severable and if all or any part of this Agreement or the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity shall not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid. Any Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid shall, if possible, be construed in a manner which will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful and valid.

13. Rights as Stockholder . The Optionee shall not have voting, dividend or any other rights as a stockholder of the Company with respect to the Options. Upon exercise of the Optionee’s Options into Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), the Optionee will obtain full voting, dividend and other rights as a stockholder of the Company.

14. Administration . The Administrator shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation, and application of the Plan as are consistent therewith and to interpret or revoke any such rules. All actions taken and all interpretations and determinations made by the Administrator shall be final and binding upon the Optionee, the Company, and all other interested persons. No Administrator shall be personally liable for any action, determination, or interpretation made in good faith with respect to the Plan or this Agreement.

 

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2007 Stock Incentive Plan Option Award Agreement for International Optionees

 

15. Effect on Other Employee Benefit Plans . The value of the Options granted pursuant to this Agreement shall not be included as compensation, earnings, salaries, or other similar terms used when calculating the Optionees’s benefits under any employee benefit plan sponsored by the Company or any Affiliate, except as such plan otherwise expressly provides. The Company expressly reserves its rights to amend, modify, or terminate any of the Company’s or any Affiliate’s employee benefit plans.

16. Nature of the Grant . In accepting the Options, the Optionee acknowledges that:

(a) the Plan is established voluntarily by the Company, it is discretionary in nature and may be modified, amended, suspended or terminated by the Company at any time, unless otherwise provided in the Plan and this Agreement;

(b) the grant of the Options is voluntary and occasional and does not create any contractual or other right to receive future awards of options, or benefits in lieu of options even if options have been awarded repeatedly in the past;

(c) all decisions with respect to future grants of options, if any, will be at the sole discretion of the Company;

(d) the Optionee’s participation in the Plan is voluntary;

(e) the Options do not constitute compensation of any kind for services rendered to the Company or to the Employer, and the Options are outside the scope of the Optionee’s employment contract, if any;

(f) the Options are not part of normal or expected compensation or salary for any purpose, including, but not limited to, calculation of any overtime, severance, resignation, termination, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments and in no event should be considered as compensation for, or relating in any way to, past services for the Company or the Employer;

(g) in the event that the Optionee is not an Employee, the grant of the Options will not be interpreted to form an employment contract or relationship with the Company; and furthermore, the grant of the Options will not be interpreted to form an employment contract with the Employer or any Affiliate;

(h) the future value of the underlying Shares is unknown and cannot be predicted with certainty;

(i) if the Optionee receives Shares upon exercise of the Options, the value of such Shares may increase or decrease in value;

(j) in consideration of the grant of the Options, no claim or entitlement to compensation or damages arises from termination of the Options or diminution in value of the Options or Shares received upon vesting of the Options resulting from termination of the Optionee’s Service to the Company or the Employer (for any reason whatsoever and whether or not in breach of local labor laws) and the Optionee irrevocably releases the Company and the

 

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2007 Stock Incentive Plan Option Award Agreement for International Optionees

 

Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Agreement, the Optionee shall be deemed irrevocably to have waived his or her entitlement to pursue such claim.

17. Data Privacy Notice and Consent . The Optionee hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of his or her personal data as described in this Agreement by and among, as applicable, the Employer, the Company and its Affiliates for the exclusive purpose of implementing, administering and managing the Optionee’s participation in the Plan.

The Optionee understands that the Company and the Employer may hold certain personal information about the Optionee, including, but not limited to, the Optionee’s name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any Shares or directorships held in the Company, details of all options or any other entitlement to Shares awarded, canceled, vested, unvested or outstanding in the Optionee’s favor, for the purpose of implementing, administering and managing the Plan (“Data”).

The Optionee understands that Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in the Optionee’s country, or elsewhere, and that the recipient’s country may have different data privacy laws and protections than the Optionee’s country. The Optionee understands that the Optionee may request a list with the names and addresses of any potential recipients of the Data by contacting his or her local human resources representative. The Optionee authorizes the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing his or her participation in the Plan, including any requisite transfer of such Data as may be required to a broker, escrow agent or other third party with whom the Shares received upon exercise of the Options may be deposited. The Optionee understands that Data will be held only as long as is necessary to implement, administer and manage his or her participation in the Plan. The Optionee understands that he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing his or her local human resources representative. The Optionee understands, however, that refusal or withdrawal of consent may affect his or her ability to participate in the Plan. For more information on the consequences of his or her refusal to consent or withdrawal of consent, the Optionee understands that he or she may contact his or her local human resources representative.

18. Amendment of Agreement . This Agreement may be amended only by a writing which specifically states that it amends this Agreement. Notwithstanding the foregoing, this Agreement may be amended unilaterally by the Committee by a writing which specifically states that it is amending this Agreement, so long as a copy of such amendment is delivered to the Optionee, and provided that no such amendment adversely affects the rights of the Optionee. Limiting the foregoing, the Committee reserves the right to change, by written notice to the Optionee, the provisions of the Options or this Agreement in any way it may deem necessary or

 

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2007 Stock Incentive Plan Option Award Agreement for International Optionees

 

advisable to carry out the purpose of the grant as a result of any change in applicable laws or regulations or any future law, regulation, ruling, or judicial decision, or, to the extent permissible under the Plan (including, but not limited to, Sections 10 and 14 of the Plan).

19. Notices . Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of its Stock Administrator. Any notice to be given to the Optionee shall be addressed to the Optionee at the address listed in the Employer’s records. By a notice given pursuant to this Section, either party may designate a different address for notices. Any notice shall have been deemed given when actually delivered.

20. Construction . The Options are being issued pursuant to the Plan and are subject to the terms of the Plan. A copy of the Plan is available upon request during normal business hours at the principal executive offices of the Company. To the extent that any provision of this Agreement violates or is inconsistent with a provision of the Plan, the Plan provision shall govern and any inconsistent provision in this Agreement shall be of no force or effect.

21. Entire Agreement . The Plan is incorporated herein by reference. The Plan and this Agreement constitute the entire agreement of the Company and the Optionee with respect to the subject matter hereof and, unless indicated otherwise herein, supersede in their entirety all prior undertakings and agreements of the Company and the Optionee with respect to the subject matter hereof.

22. Language . If the Optionee has received this Agreement or any other document related to the Plan translated into a language other than English and if the translated version is different than the English version, the English version will control.

23. Electronic Delivery . The Company may, in its sole discretion, decide to deliver any documents related to the Options granted under the Plan and participation in the Plan or future options that may be granted under the Plan by electronic means or to request the Optionee’s consent to participate in the Plan by electronic means. The Optionee hereby consents to receive such documents by electronic delivery and, if requested, to agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.

24. Miscellaneous .

(a) The Company has established the Plan voluntarily, it is discretionary in nature and the Board may terminate, amend, or modify the Plan at any time; provided, however, that no such termination, amendment, or modification of the Plan may in any way adversely affect the Optionee’s rights under this Agreement, without the Optionee’s written approval unless such termination, amendment, or modification of the Plan is necessary in order to comply with any change in applicable laws or regulations or any future law, regulation, ruling, or judicial decision or as otherwise permissible under the Plan (including, but not limited to, Sections 10 and 14 of the Plan).

(b) All obligations of the Company under the Plan and this Agreement in a Change of Control shall be governed by the Plan, other than as set forth in Section 3(a)(iii) above.

 

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2007 Stock Incentive Plan Option Award Agreement for International Optionees

 

(c) To the extent not preempted by United States federal law, this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to its principles of conflict of laws.

25. Country Specific Terms . Appendix A contains additional terms and conditions of the Agreement applicable to Participants residing in those countries. In addition, Appendix A also contains information and notices of exchange control and certain other issues of which the Participant should be aware.

26. Acceptance of Terms and Conditions . By accepting the terms and conditions applicable to the Options, the Optionee agrees to abide by all of the governing terms and provisions of the Plan and this Agreement. Additionally, the Optionee acknowledges having read and understood the terms and conditions of the Plan and this Agreement and has had an opportunity to obtain the advice of counsel prior to accepting this Agreement. The Optionee must accept his or her agreement to abide by the terms and conditions of the Plan and Agreement by executing this Agreement electronically or, if otherwise instructed by the Company, by printing and signing a paper copy of this Agreement and returning it to the appropriate Company representative. In addition, the exercise of these Options shall be considered an additional acknowledgment of the terms and conditions contained in the Plan and Agreement.

*    *    *    *    *

 

OPTIONEE SIGNATURE   
PRINTED NAME   
DATE   

 

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2007 Stock Incentive Plan Option Award Agreement for International Optionees

 

APPENDIX A

TERMS AND CONDITIONS

This Appendix A, which is part of the Agreement, contains additional terms and conditions of the Agreement that will apply to the Participant if he or she resides in one of the countries listed below. Capitalized terms used but not defined herein shall have the same meanings assigned to them in the Plan and/or the Agreement.

NOTIFICATIONS

This Appendix A also includes information regarding exchange control and certain other issues of which the Participant should be aware with respect to his or her participation in the Plan. The information is based on the securities, exchange control and other laws in effect in the respective countries as of November 2013. Such laws are often complex and change frequently. The Company therefore strongly recommends that the Participant not rely on the information as the only source of information relating to the consequences of his or her participation in the Plan because such information may be outdated when the Participant exercises the Options and/or sells any Shares acquired pursuant to the Options.

AUSTRIA

Exchange Control Information . If the Participant holds Shares acquired under the Plan outside of Austria, the Participant must submit a report to the Austrian National Bank. An exemption applies if the value of the Shares as of any given quarter does not exceed €30,000,000 or as of December 31 does not exceed €5,000,000. If the former threshold is exceeded, quarterly obligations are imposed; whereas, if the latter threshold is exceeded, annual reports must be provided. The annual reporting date is December 31 and the deadline for filing the annual report is March 31 of the following year.

When the Participant sells Shares acquired under the Plan, there may be exchange control obligations if the cash proceeds are held outside of Austria. If the transaction volume of all accounts abroad exceeds €3,000,000 the movements and balances of all accounts must be reported monthly, as of the last day of the month, on or before the fifteenth day of the following month.

BELGIUM

Tax Reporting Information. You are required to report any bank accounts opened and maintained outside Belgium on your annual tax return.

 

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2007 Stock Incentive Plan Option Award Agreement for International Optionees

 

CHINA (PRC)

Exchange Control Restrictions. The Participant agrees to comply with any requirements that may be imposed by the Company in the future in order to facilitate compliance with exchange control requirements in China. These requirements may include, but are not limited to, immediate repatriation to China of the sale proceeds, an immediate sale of the Shares at exercise, and/or repatriation of the cash proceeds through a special exchange control account.

FRANCE

Exchange Control Information.  If the Participant imports or exports cash ( e.g. , sales proceeds received under the Plan) with a value equal to or exceeding €7,600 and does not use a financial institution to do so, he or she must submit a report to the customs and excise authorities. If the Participant maintains a foreign bank account, he or she is required to report such account to the French tax authorities when filing his or her annual tax return.

GERMANY

Exchange Control Information.  Cross-border payments in excess of €12,500 must be reported monthly to the German Federal Bank. If the Participant uses a German bank to transfer a cross-border payment in excess of €12,500 under the Plan, the bank will make the report for the Participant.

IRELAND

Director Notification Requirement . If the Participant is a director, shadow director or secretary of an Irish Subsidiary or Related Entity of the Company, pursuant to Section 53 of the Irish Company Act 1990, he or she must notify the Irish Subsidiary or Related Entity of the Company in writing within five (5) business days of receiving or disposing of an interest in the Company ( e.g. , Options, Shares, etc.), or within five (5) business days of becoming aware of the event giving rise to the notification requirement, or within five (5) days of becoming a director, shadow director or secretary if such an interest exists at that time. This notification requirement also applies with respect to the interests of a spouse or minor child, whose interests will be attributed to the director, shadow director or secretary.

ISRAEL

No additional provisions apply.

ITALY

Plan Document Acknowledgment. By accepting the terms and conditions of the Options, the Participant acknowledges that he or she has received a copy of the Plan and the Agreement and has reviewed the Plan and the Agreement, including this Appendix A, in their entirety and fully understands and accepts all provisions of the Plan and the Agreement.

 

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2007 Stock Incentive Plan Option Award Agreement for International Optionees

 

Data Privacy. In addition to the data privacy provision that is set forth in the Agreement, the Participant also consents to the following additional data privacy-related terms:

I am aware that providing the Company and my Employer with Data is necessary for participation in the Plan and that my refusal to provide such Data may affect my ability to participate in the Plan. The Controller of personal data processing is the Company with registered offices at 4650 Cushing Parkway, Fremont, California, 94538, United States and, pursuant to D.lgs 196/2003, its representatives in Italy are Lam Research S.r.l., with registered offices in Centro Direzionale Colleoni, Palazzo Sirio 3-Ing, 20041 Agrate Brianza-MI, Italy.

I understand that I may at any time exercise the rights acknowledged by Section 7 of Legislative Decree June 30, 2003 n.196, including, but not limited to, the right to access, delete, update, request the rectification of my Data and cease, for legitimate reasons, the data processing. Furthermore, I am aware that my Data will not be used for direct marketing purposes.

Exchange Control Information. Participant is responsible for all reporting requirements regarding (i) any transfers of cash or shares to or from Italy and (ii) any foreign investments or investments (including proceeds from the sale of Shares) held outside of Italy.

JAPAN

Exchange Control Information. If the Participant acquired Shares valued at more than ¥100,000,000 in a single transaction, the Participant must file a Securities Acquisition Report with the Ministry of Finance through the Bank of Japan within 20 days of the purchase of Shares. In addition, if Participant pays more than ¥30,000,000 in a single transaction for the purchase of Shares at exercise, Participant must file a Payment Report with the Ministry of Finance through the Bank of Japan by the 20th day of the month following the month in which the payment was made. The precise reporting requirements vary depending on whether the relevant payment is made through a bank in Japan. A Payment Report is required independently of a Securities Acquisition Report. Therefore, if the total amount that Participant pays in a one-time transaction to exercise your Options and purchase Shares exceeds ¥100,000,000, Participant must file both a Securities Acquisition Report and a Payment Report.

KOREA

Exchange Control Information. If the Participant receives US$500,000 or more from the sale of Shares, Korean exchange control laws require the Participant to repatriate the proceeds to Korea within 18 months of the sale.

To remit funds out of South Korea to exercise the Options, Participant must obtain a confirmation of the remittance by a foreign exchange bank in South Korea. This is an automatic procedure (i.e., the bank does not need to approve the remittance) and the process should not take more than a single day. Participant likely will need to present to the bank processing the transfer supporting documentation evidencing the nature of the remittance.

MALAYSIA

Director Notification Requirement . If the Participant is a Director of the local Subsidiary, he or she must notify the local Subsidiary of the grant and also provide notice of any change in his or her interest in the Options ( e.g. exercise or the sale of Shares).

Exchange Control Information. Because exchange control regulations change frequently and without notice, you should consult your legal advisor before selling shares to ensure compliance

 

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2007 Stock Incentive Plan Option Award Agreement for International Optionees

 

with current regulations. It is Participant’s responsibility to comply with exchange control laws in Malaysia, and neither the Company nor your employer will be liable for any fines or penalties resulting from a failure to comply with applicable laws. For purposes of compiling balance of payment statistics on the inflow and outflow of funds from Malaysia, the Bank Negara Malaysia must be notified of any remittance of funds between residents and non-residents of an amount equal to RM200,001 or greater from Malaysia.

NETHERLANDS

Insider-Trading Notification. The Participant should be aware of the Dutch insider-trading rules, which may impact the sale of Shares acquired at exercise of the Options. In particular, the Participant may be prohibited from effectuating certain transactions involving Shares if the Participant has inside information about the Company. If the Participant is uncertain whether the insider-trading rules apply to him or her, the Participant should consult his or her personal legal advisor. By accepting the Agreement and participating in the Plan, the Participant acknowledges having read and understood this notification and acknowledges that it is the Participant’s responsibility to comply with the following Dutch insider-trading rules.

SINGAPORE

Director Notification Obligation. If the Participant is a director, associate director or shadow director of a Singaporean Subsidiary or Related Entity of the company, the Participant is subject to certain notification requirements under the Singapore Companies Act. Among these requirements is an obligation to notify the Singaporean Subsidiary or Related Entity of the Company in writing when the Participant receives an interest ( e.g. , Options or Shares) in the Company or any Subsidiary or Related Entity of the Company. In addition, the Participant must notify the Singaporean Subsidiary or Related Entity of the Company when the Participant sells Shares or shares of any Subsidiary or Related Entity of the Company (including when the Participant sells Shares acquired at exercise of the Options). These notifications must be made within two (2) days of acquiring or disposing of any interest in the Company or any Subsidiary or Related Entity of the Company. In addition, a notification of the Participant’s interests in the Company or any Subsidiary or Related Entity of the Company must be made within two (2) days of becoming a director.

Tax Information . The Participant may be eligible for certain tax favored schemes applicable to the Options. The participant should consult with his or her tax advisor to determine if these tax favorable schemes apply to his or her situation.

SLOVAKIA

Exchange Control Information . It is the Participant’s obligation to comply with exchange control requirements in the Slovakia Republic, including any notification requirements applicable to opening or maintaining any foreign bank or brokerage accounts.

 

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2007 Stock Incentive Plan Option Award Agreement for International Optionees

 

SLOVENIA

No additional provisions apply.

SWITZERLAND

Securities Law Information. The offer of the Option is considered a private offering in Switzerland and is therefore not subject to securities registration in Switzerland.

TAIWAN

Exchange Control Information. The Participant may acquire and remit foreign currency (including funds for the purchase of Shares and proceeds from the sale of Shares) up to US$5,000,000 per year without prior approval.

If the transaction amount is TWD500,000 or more in a single transaction, the Participant must submit a Foreign Exchange Transaction Form. If the transaction amount is US$500,000 or more in a single transaction, the Participant must also provide supporting documentation to the satisfaction of the remitting bank.

UNITED KINGDOM

No additional provisions apply.

 

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LAM RESEARCH CORPORATION

2007 Stock Incentive Plan

Nonstatutory Stock Option Award Agreement

EXHIBIT A

Optionee (Name & Employee Number):

Grant Date:

Number of Options :

Exercise Price:

 

Vesting Date(s):  

[Insert Number] Options on [Insert Date]

 

[Insert Number] Options on [Insert Date]

 

[Insert Number] Options on [Insert Date]

Expiration Date: 7 years from the Grant Date

Leave of Absence: 31st day (or 91st day if reemployment guaranteed by statute or contract)

Termination of Service Provisions:

Any Reason (except death, disability and Retirement): 90 days

Death: 12 months

Disability: 12 months

Retirement Extended Exercise Period: 90 days plus an additional 21 months

Retirement: At least 55 years old and has completed at least 5 years of Service

 

Page 15 of 15

Exhibit 10.5

LAM RESEARCH CORPORATION

2007 Stock Incentive Plan

Market-Based Performance Restricted Stock Unit Award Agreement

(U.S. Participants)

Pursuant to the terms of the 2007 Stock Incentive Plan (the “Plan”) Lam Research Corporation, a Delaware corporation (the “Company”), hereby awards market-based performance restricted stock units (“mPRSUs”) to the Participant on the terms and conditions as set forth in this Market-Based Performance Restricted Stock Unit Award Agreement (including the attached Exhibit) (the “Agreement”) and the Plan. Capitalized terms used but not defined in this Agreement shall have the meaning specified in the Plan. This Agreement is effective as of the Grant Date.

NOW, THEREFORE , it is hereby agreed as follows:

1. Award of mPRSUs . Subject to the terms and conditions of this Agreement and the Plan (the terms of which are incorporated herein by reference) and effective as of the date set forth above, the Company hereby grants to the Participant a Target Number of mPRSUs as set forth in the Exhibit. Subject to the Company’s attainment of the relative performance set forth in the attached Exhibit (the “Performance Criteria”), the Participant may vest in the mPRSUs in a designated Payout Range as set forth in the Exhibit. The mPRSUs represent an unfunded, unsecured promise by the Company to deliver Shares subject to the terms and conditions of this Agreement.

2. Vesting .

(a) Subject to the terms and conditions of this Agreement, the mPRSUs shall vest and become payable in Shares on the Performance Vesting Date set forth in the attached Exhibit. The number of mPRSUs that vest shall be determined by the Company’s performance under the Vesting Formula during the Performance Period, as set forth in the attached Exhibit. Except as otherwise provided herein, the Participant’s right to receive Shares subject to the mPRSUs is contingent upon the Participant continuing to provide Service (as defined in Section 3 below) to the Company (or any Affiliate) through the Performance Vesting Date.

(b) Notwithstanding the provisions above, in the event of a Change in Control of the Company prior to the end of the Performance Period in Section 2(a), a portion of the mPRSUs shall convert into a cash award (the “Cash Award”). The number of mPRSUs that convert into a Cash Award shall be the sum of the “performance pro rata” number of Shares and the “target pro rata” number of Shares. This sum shall be multiplied by the closing price of the Company’s common stock as of the closing date of the Change in Control to determine the dollar amount of the Cash Award. The Cash Award will vest on the Performance Vesting Date, contingent upon the Participant continuing to provide Service (as defined in Section 3 below) to the Company (or any Affiliate) through the Performance Vesting Date. Any remaining portion of the mPRSUs that are not converted into a Cash Award shall be cancelled.

(i) Performance Pro Rata . The Target Number of mPRSUs (as set forth in the attached Exhibit) shall be multiplied by the total number of days from the Grant Date

 

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2007 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for U.S. Participants

 

until the closing date of the Change in Control divided by the number of days in the Performance Period (“Elapsed Target Shares”). The Company’s performance under the Vesting Formula (as set forth in the attached Exhibit) from the first day of the Performance Period until the closing date of the Change in Control shall be applied to the Elapsed Target Shares to determine the “performance pro rata” number of Shares.

(ii) Target Pro Rata . The Target Number of mPRSUs (as set forth in the attached Exhibit) shall be multiplied by the total number of days from the day following the closing date of the Change in Control until the last day of the Performance Period divided by the number of days in the Performance Period to determine the “target pro rata” number of Shares.

3. Effect of Termination of Service or Leave of Absence .

(a) For purposes of this Agreement, “Service” shall mean the performance of services for the Company (or any Affiliate) in the capacity of an Employee or Company Director and shall be considered terminated on the later of the last day the Participant is on payroll or the last day of service as a director for a Company Director. In the event of termination of the Participant’s Service by the Participant or by the Company or an Affiliate for any reason, excluding Participant’s death or disability (as determined by the Administrator) before the mPRSUs have vested, the unvested mPRSUs shall be cancelled by the Company (subject to the terms of any applicable Employment or Change in Control Agreement).

(b) In the event of termination of the Participant’s Service due to death, a portion of the mPRSUs granted to the Participant shall vest on the date of death. To determine the applicable number of Shares, the Target Number of mPRSUs (as set forth in the attached Exhibit) shall be multiplied by the total number of days from the Grant Date until the date of death, divided by the number of days in the Performance Period to determine the “death pro rata” target number of Shares. The Company’s performance under the Vesting Formula (as set forth in the attached Exhibit) from the first day of the Performance Period until the date of death shall be applied to the greater of: (i) the “death pro rata” target number of Shares or (ii) 50% of the original Target Number of mPRSUs (as set forth in the attached Exhibit), to determine the number of Shares which shall vest on the date of death (the “Death Vesting Date”). Any remaining unvested portion of the mPRSUs shall be cancelled.

(c) In the event of termination of the Participant’s Service due to disability (as determined by the Administrator), a portion of the mPRSUs granted to the Participant shall vest on the date the “disability” is incurred. To determine the applicable number of Shares, the Target Number of mPRSUs (as set forth in the attached Exhibit) shall be multiplied by the total number of days from the Grant Date until the date the disability is incurred, divided by the number of days in the Performance Period to determine the “disability pro rata” target number of Shares. The Company’s performance under the Vesting Formula (as set forth in the attached Exhibit) from the first day of the Performance Period until the date the disability is incurred shall be applied to the greater of: (i) the “disability pro rata” target number of Shares or (ii) 50% of the original Target Number of mPRSUs (as set forth in the attached Exhibit) to determine the number of Shares which shall vest on the date the disability is incurred (the “Disability Vesting

 

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2007 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for U.S. Participants

 

Date”, and collectively, with “Performance Vesting Date”, and the “Death Vesting Date”, the “Vesting Date”). Any remaining unvested portion of the mPRSUs shall be cancelled.

(d) Vesting of the mPRSUs will be suspended and vesting credit will no longer accrue as of the day of the Leave of Absence as set forth in Exhibit A, unless otherwise determined by the Administrator or required by contract or statute. If the Participant returns to Service immediately after the end of an approved Leave of Absence, vesting credit shall continue to accrue from that date of continued Service.

4. Form and Timing of Payment .

(a) Subject to Section 5 of this Agreement and provided that the Participant has satisfied the vesting requirements of Section 2 or 3 of this Agreement, on each Vesting Date, as applicable, the mPRSUs shall automatically be converted into unrestricted Shares. Such Shares will be issued to the Participant (as evidenced by the appropriate entry in the books of the Company or a duly authorized transfer agent of the Company) on the applicable Vesting Date (or as soon as practicable), but in any event, within the period ending on the later to occur of the date that is 2  1 2 months after the end of (i) the Participant’s tax year that includes the applicable Vesting Date, or (ii) the Company’s tax year that includes the applicable Vesting Date.

(b) Shares issued in respect of mPRSUs shall be deemed to be issued in consideration of past services actually rendered by the Participant to the Company or an Affiliate or for its benefit for which the Participant has not previously been compensated or for future services to be rendered, as the case may be, which the Company deems to have a value at least equal to the aggregate par value of the Shares subject to the mPRSUs.

5. Tax Withholding Obligations . Regardless of any action the Company or the Participant’s employer (the “Employer”) takes with respect to any or all income tax (including federal, state and local taxes), social insurance, payroll tax, or other tax-related withholding (“Tax-Related Items”), the Participant acknowledges that the ultimate liability for all Tax-Related Items legally due by the Participant is and remains the Participant’s responsibility and that the Company and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the mPRSUs, including the grant of the mPRSUs, the vesting of the mPRSUs, or the receipt of an equivalent cash payment, the subsequent sale of any Shares acquired at vesting and the receipt of any dividends; and (ii) do not commit to structure the terms of the grant or any aspect of the mPRSUs to reduce or eliminate the Participant’s liability for Tax-Related Items or achieve any particular tax result.

Prior to the issuance of Shares upon vesting of the mPRSUs (or any other tax or withholding event), the Participant shall pay, or make arrangements satisfactory to the Company (in the Company’s sole discretion) to satisfy all withholding obligations. In those cases where a prior arrangement has not been made (or where the amount of money provided under the prior arrangement is insufficient to satisfy the obligations for Tax-Related Items), the Company shall withhold a number of whole Shares otherwise deliverable at vesting having a Fair Market Value sufficient to satisfy the statutory minimum (or such higher amount as is allowable without adverse accounting consequences) of the Participant’s estimated obligations for Tax-Related

 

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2007 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for U.S. Participants

 

Items applicable to the mPRSUs; such withholding will result in the issuance to the participant of a lower number of Shares.

The Company and/or the Employer may also, in lieu of or in addition to the foregoing, at the Company’s sole discretion, as authorized herein by the Participant, withhold all applicable Tax-Related Items legally payable by the Participant from the Participant’s wages or other cash compensation or to withhold in one of the following ways, as determined by the Company: (i) require the Participant to deposit with the Company an amount of cash sufficient to meet his or her obligation for Tax-Related Items, and/or (ii) sell or arrange for the sale of Shares to be issued on the vesting of the mPRSUs to satisfy the withholding obligation. If the Participant’s obligation for Tax-Related Items is satisfied as described in (ii) of this section, the Company will endeavor to sell only the number of Shares required to satisfy the Participant’s obligations for Tax-Related Items; however, the Participant agrees that the Company may sell more Shares than necessary to cover the Tax-Related Items and that in such event, the Company will reimburse the Participant for the excess amount withheld, in cash and without interest. The Participant shall pay to the Employer any amount of Tax-Related Items that the Employer may be required to withhold as a result of the Participant’s receipt of the mPRSUs, the vesting of the mPRSUs that cannot be satisfied by the means previously described. The Company may refuse to deliver Shares to the Participant if the Participant fails to comply with his or her obligation in connection with the Tax-Related Items as described herein. The Participant hereby consents to any action reasonably taken by the Company and/or the Employer to meet his or her obligation for Tax-Related Items.

Further, in consideration of the grant of the mPRSUs, no claim or entitlement to compensation or damages arises if, in satisfying the Participant’s (and/or the Employer’s) obligation for Tax-Related Items, the Company and/or the Employer withholds an amount in excess of the amount legally required to be withheld, the Participant irrevocably releases the Company and the Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Agreement, the Participant shall be deemed irrevocably to have waived his or her entitlement to pursue such claim or damages.

6. Restriction on Transferability . Prior to vesting and delivery of the Shares, neither the mPRSUs, nor the Shares or any beneficial interest therein, may be sold, transferred, pledged, assigned, or otherwise alienated at any time. Any attempt to do so contrary to the provisions hereof shall be null and void. Notwithstanding the above, distribution can be made pursuant to will, the laws of descent and distribution, and if provided by the Administrator, intra-family transfer instruments, or to an inter vivos trust, or as otherwise provided by the Administrator. The terms of this Agreement shall be binding upon the executors, administrators, heirs, successors and assigns of the Participant.

7. Requirements of Law . The issuance of Shares upon vesting of the mPRSUs is subject to Section 13 of the Plan, which generally provides that any such issuance shall be subject to compliance by the Company and the Participant with all applicable requirements of law relating thereto and with all applicable regulations of any stock exchange on which the Shares may be listed for trading at the time of such issuance. The inability of the Company to

 

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2007 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for U.S. Participants

 

obtain approval from any regulatory body having authority deemed by the Company to be necessary to the lawful issuance of any Shares hereby shall relieve the Company of any liability with respect to the non-issuance of the Shares as to which such approval shall not have been obtained. The Company, however, shall use its reasonable efforts to obtain all such approvals.

8. Rights as Stockholder . The Participant shall not have voting, dividend or any other rights as a stockholder of the Company with respect to the mPRSUs. Upon settlement of the Participant’s mPRSUs into Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), the Participant will obtain full voting, dividend and other rights as a stockholder of the Company.

9. No Compensation Deferrals . Neither the Plan nor this Agreement is intended to provide for an elective deferral of compensation that would be subject to Section 409A (“Section 409A”) of the Internal Revenue Code of 1986, as amended (the “Code”). If, notwithstanding the parties’ intent in this regard, at the time of the Participant’s termination of Service, he or she is determined to be a “specified employee” as defined in Code Section 409A, and one or more of the payments or benefits received or to be received by the Participant pursuant to the mPRSUs would constitute deferred compensation subject to Code Section 409A, no such payment or benefit will be provided under the mPRSUs until the earliest of (A) the date which is six (6) months after the Participant’s “separation from service” for any reason, other than death or “disability” (as such terms are used in Section 409A(a)(2) of the Code), (B) the date of the Participant’s death or “disability” (as such term is used in Section 409A(a)(2)(C) of the Code), or (C) the effective date of a “change in the ownership or effective control” or a “change in ownership of a substantial portion of the assets” of the Company (as such terms are used in Section 409A(a)(2)(A)(v) of the Code). The provisions of this Section 9 shall only apply to the extent required to avoid the Participant’s incurrence of any additional tax or interest under Code Section 409A or any regulations or U.S. Department of the Treasury (“Treasury”) guidance promulgated thereunder. In addition, if any provision of the mPRSUs would cause the Participant to incur any additional tax or interest under Code Section 409A or any regulations or Treasury guidance promulgated thereunder, the Company reserves the right, to the extent the Company deems necessary or advisable in its sole discretion, to unilaterally amend or modify the Plan and/or this Agreement to conform it to the maximum extent practicable to the original intent of the applicable provision without violating the provisions of Code Section 409A, including without limitation to limit payment or distribution of any amount of benefit hereunder in connection with a Change in Control to a transaction meeting the definitions referred to in clause (C) above, or in connection with any disability to a “disability” as referred to in (B) above; provided however that the Company makes no representation that these Performance Restricted Stock Units are not subject to Section 409A nor makes any undertaking to preclude Section 409A from applying to these mPRSUs. In addition, to the extent the Company determines it appropriate to accelerate any vesting conditions applicable to this award, then to the extent necessary to avoid the Participant’s incurring any additional tax or interest as a result of such vesting acceleration under Code Section 409A or any regulations or Treasury guidance promulgated thereunder, and notwithstanding Section 4 above, the Company may as a condition to extending such acceleration benefits provide for the Shares to be issued upon settlement of the mPRSUs to be issued on the earliest date (the “Permitted Distribution Date”) that would obviate application of such additional tax or interest rather than issuing them upon the date on which

 

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2007 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for U.S. Participants

 

such vesting is effective as would otherwise be required under Section 2 (or as soon as practicable after such Permitted Distribution Date and in no event later than that last day of the grace period following such date permitted under Code Section 409A).

10. Administration . The Administrator shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation, and application of the Plan as are consistent therewith and to interpret or revoke any such rules. All actions taken and all interpretations and determinations made by the Administrator shall be final and binding upon the Participant, the Company, and all other interested persons. No Administrator shall be personally liable for any action, determination, or interpretation made in good faith with respect to the Plan or this Agreement.

11. Effect on Other Employee Benefit Plans . The value of the mPRSUs granted pursuant to this Agreement shall not be included as compensation, earnings, salaries, or other similar terms used when calculating the Participant’s benefits under any employee benefit plan sponsored by the Company or any Affiliate, except as such plan otherwise expressly provides. The Company expressly reserves its rights to amend, modify, or terminate any of the Company’s or any Affiliate’s employee benefit plans.

12. No Employment Rights . The award of the mPRSUs pursuant to this Agreement shall not give the Participant any right to continued Service with the Company or an Affiliate and shall not interfere with the ability of the Employer to terminate the Participant’s Service with the Company at any time with or without cause.

13. Nature of the Grant . In accepting the mPRSUs, the Participant acknowledges that:

(a) the Plan is established voluntarily by the Company, it is discretionary in nature and may be modified, amended, suspended or terminated by the Company at any time, unless otherwise provided in the Plan and this Agreement;

(b) the grant of mPRSUs is voluntary and occasional and does not create any contractual or other right to receive future awards of mPRSUs, or benefits in lieu of mPRSUs even if mPRSUs have been awarded repeatedly in the past;

(c) all decisions with respect to future grants of mPRSUs, if any, will be at the sole discretion of the Company;

(d) the Participant’s participation in the Plan is voluntary;

(e) the mPRSUs are outside the scope of the Participant’s employment contract, if any;

(f) the mPRSUs are not part of normal or expected compensation or salary for any purpose, including, but not limited to, calculation of any overtime, severance, resignation, termination, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments;

 

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2007 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for U.S. Participants

 

(g) in the event that the Participant is not an employee of the Company, the grant of the mPRSUs will not be interpreted to form an employment contract or relationship with the Company; and furthermore, the grant of the mPRSUs will not be interpreted to form an employment contract with the Employer or any Affiliate;

(h) the future value of the underlying Shares is unknown and cannot be predicted with certainty;

(i) if the Participant receives Shares upon vesting of the mPRSUs, the value of such Shares may increase or decrease in value;

(j) in consideration of the grant of the mPRSUs, no claim or entitlement to compensation or damages arises from termination of the mPRSUs or diminution in value of the mPRSUs received upon vesting of mPRSUs resulting from termination of the Participant’s Service to the Company or the Employer (for any reason whatsoever and whether or not in breach of local labor laws) and the Participant irrevocably releases the Company and the Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Agreement, the Participant shall be deemed irrevocably to have waived his or her entitlement to pursue such claim.

14. Amendment of Agreement . This Agreement may be amended only by a writing which specifically states that it amends this Agreement. Notwithstanding the foregoing, this Agreement may be amended unilaterally by the Committee by a writing which specifically states that it is amending this Agreement, so long as a copy of such amendment is delivered to the Participant, and provided that no such amendment adversely affects the rights of the Participant. Limiting the foregoing, the Committee reserves the right to change, by written notice to the Participant, the provisions of the mPRSUs or this Agreement in any way it may deem necessary or advisable to carry out the purpose of the grant as a result of any change in applicable laws or regulations or any future law, regulation, ruling, or judicial decision, or, to the extent permissible under the Plan (including, but not limited to, Sections 10 and 14 of the Plan).

15. Notices . Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of its Administrator. Any notice to be given to the Participant shall be addressed to the Participant at the address listed in the Employer’s records. By a notice given pursuant to this Section, either party may designate a different address for notices. Any notice shall have been deemed given when actually delivered.

16. Severability . The provisions of this Agreement are severable and if all or any part of this Agreement or the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity shall not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid. Any Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid shall, if possible, be construed in a manner which will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful and valid.

 

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2007 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for U.S. Participants

 

17. Construction . The mPRSUs are being issued pursuant to the Plan and are subject to the terms of the Plan. A copy of the Plan is available upon request during normal business hours at the principal executive offices of the Company. To the extent that any provision of this Agreement violates or is inconsistent with a provision of the Plan, the Plan provision shall govern and any inconsistent provision in this Agreement shall be of no force or effect.

18. Electronic Delivery . The Company may, in its sole discretion, decide to deliver any documents related to the mPRSUs granted under the Plan and participation in the Plan or future mPRSUs that may be granted under the Plan by electronic means or to request the Participant’s consent to participate in the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery and, if requested, to agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.

19. Entire Agreement . The Plan is incorporated herein by reference. The Plan and this Agreement constitute the entire agreement of the Company and the Participant with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Participant with respect to the subject matter hereof.

20. Miscellaneous .

(a) The Company has established the Plan voluntarily, it is discretionary in nature and the Board may terminate, amend, or modify the Plan at any time; provided, however, that no such termination, amendment, or modification of the Plan may in any way adversely affect the Participant’s rights under this Agreement, without the Participant’s written approval unless such termination, amendment, or modification of the Plan is necessary in order to comply with any change in applicable laws or regulations or any future law, regulation, ruling, or judicial decision or as otherwise permissible under the Plan (including, but not limited to, Sections 10 and 14 of the Plan).

(b) All obligations of the Company under the Plan and this Agreement in a Change in Control shall be governed by the Plan and this Agreement, other than as set forth in Section 3(a) above.

(c) By signing this Agreement, the Participant acknowledges that his or her personal employment or Service information regarding participation in the Plan and information necessary to determine and pay, if applicable, benefits under the Plan must be shared with other entities, including companies related to the Company and persons responsible for certain acts in the administration of the Plan. By signing this Agreement, the Participant consents to such transmission of personal data as the Company believes is appropriate to administer the Plan.

(d) To the extent not preempted by federal law, this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to its principles of conflict of laws.

 

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2007 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for U.S. Participants

 

21. Acceptance of Terms and Conditions . By accepting the terms and conditions of this Agreement, the Participant agrees to abide by all of the governing terms and provisions of the Plan and this Agreement. Additionally, the Participant acknowledges having read and understood the terms and conditions of the Plan and this Agreement and has had an opportunity to obtain the advice of counsel prior to accepting this Agreement. The Participant must acknowledge his or her agreement to abide by the terms and conditions of the Plan and Agreement by executing this Agreement electronically or, if otherwise instructed by the Company, by printing and signing a paper copy of this Agreement and returning it to the appropriate Company representative. In addition, the transfer or sale of the shares obtained at vesting by the Participant shall be considered an additional acknowledgment of the terms and conditions contained in the Plan and Agreement.

*    *    *    *    *

 

PARTICIPANT SIGNATURE   
PRINTED NAME   
DATE   

 

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LAM RESEARCH CORPORATION

Market-Based Performance Restricted Stock Unit Award Agreement

EXHIBIT A

Participant (Name & Employee Number):

Grant Date:

Target Number of mPRSUs :

Performance Vesting Date: February [    ], 201[X + 1]

Payout Range: 0% to 150% of Target Number of mPRSUs

Performance Period: January 1, 201[  ] to December 31, 201[X]

Performance Criteria:

 

    Index

 

    Vesting Formula

Target Number of mPRSUs x (100% + ((LRCX TSR % – Index TSR %) x 2)) = mPRSUs vested (subject to the maximum in the Payout Range)

 

    Target Number of mPRSUs is vested if the LRCX TSR % equals the Index TSR %

 

    Number of mPRSUs vested increases by 2% of target for each 1% that the LRCX TSR % exceeds the Index TSR %

 

    Number of mPRSUs vested decreases by 2% of target for each 1% that the LRCX TSR % trails the Index TSR %

 

    The result of the Vesting Formula is rounded down to the nearest whole number

 

    LRCX TSR %

(LRCX 50-trading day average closing price as of the last trading day of the Performance Period – LRCX 50-trading day average closing price on the trading day immediately prior to the beginning of the Performance Period) ÷ (LRCX 50-trading day average closing price on the trading day immediately prior to the beginning of the Performance Period) x 100

 

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    Index TSR %

(Index 50-trading day average closing price as of the last trading day of the Performance Period – Index 50-trading day average closing price on the trading day immediately prior to the beginning of the Performance Period) ÷ (Index 50-trading day average closing price on the trading day immediately prior to the beginning of the Performance Period) x 100

 

    Notes:

 

    The LRCX TSR % calculation excludes any dividends paid on the Company’s common stock.

 

    All Index TSR % calculations are based on the companies traded on the Index as of the applicable dates

 

    E.g., The Index is used as of the applicable dates even if companies are added / removed from the Index during the Performance Period.

 

    The Company’s relative performance is determined using calculations based on the 50-trading day average closing price methodology for all TSR calculations.

 

    In the event of a Change in Control, the closing price of the Company’s common stock as of the closing date of the Change in Control is used to convert the sum of the “performance pro rata” and “target pro rata” number of Shares into the Cash Award.

 

    If the Index is no longer traded / calculated, the Company’s relative performance is determined using calculations based on the companies included in the Index at the time trading / calculation last occurred. The Compensation Committee will calculate the Index TSR % in the manner that most closely approximates the Index in its sole discretion.

Leave of Absence: 31st day (or 91st day if reemployment guaranteed by statute or contract)

 

Page 11 of 11

Exhibit 10.6

LAM RESEARCH CORPORATION

2007 Stock Incentive Plan

Market-Based Performance Restricted Stock Unit Award Agreement

(International Participants)

Pursuant to the terms of the 2007 Stock Incentive Plan (the “Plan”) Lam Research Corporation, a Delaware corporation (the “Company”), hereby awards market-based performance restricted stock units (“mPRSUs”) to the Participant on the terms and conditions as set forth in this Market-Based Performance Restricted Stock Unit Award Agreement (including the attached Exhibit) (the “Agreement”) and the Plan. Capitalized terms used but not defined in this Agreement shall have the meaning specified in the Plan. This Agreement is effective as of the Grant Date.

NOW, THEREFORE , it is hereby agreed as follows:

1. Award of mPRSUs . Subject to the terms and conditions of this Agreement and the Plan (the terms of which are incorporated herein by reference) and effective as of the date set forth above, the Company hereby grants to the Participant a Target Number of mPRSUs as set forth in the Exhibit. Subject to the Company’s attainment of the relative performance set forth in the attached Exhibit (the “Performance Criteria”), the Participant may vest in the mPRSUs in a designated Payout Range as set forth in the Exhibit. The mPRSUs represent an unfunded, unsecured promise by the Company to deliver Shares subject to the terms and conditions of this Agreement.

2. Vesting .

(a) Subject to the terms and conditions of this Agreement, the mPRSUs shall vest and become payable in Shares on the Performance Vesting Date set forth in the attached Exhibit. The number of mPRSUs that vest shall be determined by the Company’s performance under the Vesting Formula during the Performance Period, as set forth in the attached Exhibit. Except as otherwise provided herein, the Participant’s right to receive Shares subject to the mPRSUs is contingent upon the Participant continuing to provide Service (as defined in Section 3 below) to the Company (or any Affiliate) through the Performance Vesting Date.

(b) Notwithstanding the provisions above, in the event of a Change in Control of the Company prior to the end of the Performance Period in Section 2(a), a portion of the mPRSUs shall convert into a cash award (the “Cash Award”). The number of mPRSUs that convert into a Cash Award shall be the sum of the “performance pro rata” number of Shares and the “target pro rata” number of Shares. This sum shall be multiplied by the closing price of the Company’s common stock as of the closing date of the Change in Control to determine the dollar amount of the Cash Award. The Cash Award will vest on the Performance Vesting Date, contingent upon the Participant continuing to provide Service (as defined in Section 3 below) to the Company (or any Affiliate) through the Performance Vesting Date. Any remaining portion of the mPRSUs that are not converted into a Cash Award shall be cancelled.

(i) Performance Pro Rata . The Target Number of mPRSUs (as set forth in the attached Exhibit) shall be multiplied by the total number of days from the Grant Date until the closing date of the Change in Control divided by the number of days in the Performance

 

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2007 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

Period (“Elapsed Target Shares”). The Company’s performance under the Vesting Formula (as set forth in the attached Exhibit) from the first day of the Performance Period until the closing date of the Change in Control shall be applied to the Elapsed Target Shares to determine the “performance pro rata” number of Shares.

(ii) Target Pro Rata . The Target Number of mPRSUs (as set forth in the attached Exhibit) shall be multiplied by the total number of days from the day following the closing date of the Change in Control until the last day of the Performance Period divided by the number of days in the Performance Period to determine the “target pro rata” number of Shares.

3. Effect of Termination of Service or Leave of Absence .

(a) For purposes of this Agreement, “Service” shall mean the performance of services for the Company (or any Affiliate) in the capacity of an Employee or Company Director and shall be considered terminated on the later of the last day the Participant is on payroll or the last day of service as a director for a Company Director. In the event of termination of the Participant’s Service by the Participant or by the Company or an Affiliate for any reason, excluding Participant’s death or disability (as determined by the Administrator) before the mPRSUs have vested, the unvested mPRSUs shall be cancelled by the Company (subject to the terms of any applicable Employment or Change in Control Agreement).

(b) In the event of termination of the Participant’s Service due to death, a portion of the mPRSUs granted to the Participant shall vest on the date of death. To determine the applicable number of Shares, the Target Number of mPRSUs (as set forth in the attached Exhibit) shall be multiplied by the total number of days from the Grant Date until the date of death, divided by the number of days in the Performance Period to determine the “death pro rata” target number of Shares. The Company’s performance under the Vesting Formula (as set forth in the attached Exhibit) from the first day of the Performance Period until the date of death shall be applied to the greater of: (i) the “death pro rata” target number of Shares or (ii) 50% of the original Target Number of mPRSUs (as set forth in the attached Exhibit), to determine the number of Shares which shall vest on the date of death (the “Death Vesting Date”). Any remaining unvested portion of the mPRSUs shall be cancelled.

(c) In the event of termination of the Participant’s Service due to disability (as determined by the Administrator), a portion of the mPRSUs granted to the Participant shall vest on the date the disability is incurred. To determine the applicable number of Shares, the target number of mPRSUs (as set forth in the attached Exhibit) shall be multiplied by the total number of days from the Grant Date until the date the disability is incurred, divided by the number of days in the Performance Period to determine the “disability pro rata” target number of Shares. The Company’s performance under the Vesting Formula (as set forth in the attached Exhibit) from the first day of the Performance Period until the date the disability is incurred shall be applied to the greater of: (i) the “disability pro rata” target number of Shares or (ii) 50% of the original Target Number of mPRSUs (as set forth in the attached Exhibit) to determine the number of Shares which shall vest on the date the disability is incurred (the “Disability Vesting Date”, and collectively, with “Performance Vesting Date”, and the “Death Vesting Date”, the “Vesting Date”). Any remaining unvested portion of the mPRSUs shall be cancelled.

 

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2007 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

(d) Vesting of the mPRSUs will be suspended and vesting credit will no longer accrue as of the day of the Leave of Absence as set forth in Exhibit A, unless otherwise determined by the Administrator or required by contract, statute or applicable local law. If the Participant returns to Service immediately after the end of an approved Leave of Absence, vesting credit shall continue to accrue from that date of continued Service.

4. Form and Timing of Payment .

(a) Subject to Section 5 of this Agreement and provided that the Participant has satisfied the vesting requirements of Section 2 or 3 of this Agreement, on each Vesting Date, as applicable, the mPRSUs shall automatically be converted into unrestricted Shares. Such Shares will be issued to the Participant (as evidenced by the appropriate entry in the books of the Company or a duly authorized transfer agent of the Company) on the applicable Vesting Date (or as soon as practicable) , but in any event, within the period ending on the later to occur of the date that is 2  1 2 months after the end of (i) the Participant’s tax year that includes the applicable Vesting Date, or (ii) the Company’s tax year that includes the applicable Vesting Date.

(b) Shares issued in respect of mPRSUs shall be deemed to be issued in consideration of past services actually rendered by the Participant to the Company or an Affiliate or for its benefit for which the Participant has not previously been compensated or for future services to be rendered, as the case may be, which the Company deems to have a value at least equal to the aggregate par value of the Shares subject to the mPRSUs.

5. Tax Withholding Obligations . Regardless of any action the Company or the Participant’s employer (the “Employer”) takes with respect to any or all income tax (including federal, state and local taxes), social insurance, payroll tax, payment on account or other tax-related withholding (“Tax-Related Items”), the Participant acknowledges that the ultimate liability for all Tax-Related Items legally due by the Participant is and remains the Participant’s responsibility and that the Company and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the mPRSUs, including the grant of the mPRSUs, the vesting of the mPRSUs, or the receipt of an equivalent cash payment, the subsequent sale of any Shares acquired at vesting and the receipt of any dividends; and (ii) do not commit to structure the terms of the grant or any aspect of the mPRSUs to reduce or eliminate the Participant’s liability for Tax-Related Items or achieve any particular tax result.

Prior to the issuance of Shares upon vesting of the mPRSUs (or any other tax or withholding event), the Participant shall pay, or make arrangements satisfactory to the Company (in the Company’s sole discretion) to satisfy all withholding (and payment on account, where applicable) obligations. In those cases where a prior arrangement has not been made (or where the amount of money provided under the prior arrangement is insufficient to satisfy the obligations for Tax-Related Items), the Company shall withhold a number of whole Shares otherwise deliverable at vesting having a Fair Market Value sufficient to satisfy the statutory minimum (or such higher amount as is allowable without adverse accounting consequences) of the Participant’s estimated obligations for Tax-Related Items applicable to the mPRSUs; such withholding will result in the issuance to the participant of a lower number of Shares.

 

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2007 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

The Company and/or the Employer may also, in lieu of or in addition to the foregoing, at the Company’s sole discretion as authorized herein by the Participant, withhold all applicable Tax-Related Items legally payable by the Participant from the Participant’s wages or other cash compensation or to withhold in one of the following ways, as determined by the Company: (i) require the Participant to deposit with the Company an amount of cash sufficient to meet his or her obligation for Tax-Related Items, and/or (ii) sell or arrange for the sale of Shares to be issued on the vesting of the mPRSUs to satisfy the withholding (or payment on account, when applicable) obligation. If the Participant’s obligation for Tax-Related Items is satisfied as described in (ii) of this section, the Company will endeavor to sell only the number of Shares required to satisfy the Participant’s obligations for Tax-Related Items; however, the Participant agrees that the Company may sell more Shares than necessary to cover the Tax-Related Items and that in such event, the Company will reimburse the Participant for the excess amount withheld, in cash and without interest. The Participant shall pay to the Employer any amount of Tax-Related Items that the Employer may be required to withhold as a result of the Participant’s receipt of the mPRSUs, the vesting of the mPRSUs that cannot be satisfied by the means previously described. The Company may refuse to deliver Shares to the Participant if the Participant fails to comply with his or her obligation in connection with the Tax-Related Items as described herein. The Participant hereby consents to any action reasonably taken by the Company and/or the Employer to meet his or her obligation for Tax-Related Items.

Further, in consideration of the grant of the mPRSUs, no claim or entitlement to compensation or damages arises if, in satisfying the Participant’s (and/or the Employer’s) obligation for Tax-Related Items, the Company and/or the Employer withholds an amount in excess of the amount legally required to be withheld, the Participant irrevocably releases the Company and the Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Agreement, the Participant shall be deemed irrevocably to have waived his or her entitlement to pursue such claim or damages.

6. Restriction on Transferability . Prior to vesting and delivery of the Shares, neither the mPRSUs, nor the Shares or any beneficial interest therein, may be sold, transferred, pledged, assigned, or otherwise alienated at any time. Any attempt to do so contrary to the provisions hereof shall be null and void. Notwithstanding the above, distribution can be made pursuant to will, the laws of descent and distribution, and if provided by the Administrator, intra-family transfer instruments, or to an inter vivos trust, or as otherwise provided by the Administrator. The terms of this Agreement shall be binding upon the executors, administrators, heirs, successors and assigns of the Participant.

7. Requirements of Law . The issuance of Shares upon vesting of the mPRSUs is subject to Section 13 of the Plan, which generally provides that any such issuance shall be subject to compliance by the Company and the Participant with all applicable requirements of law relating thereto and with all applicable regulations of any stock exchange on which the Shares may be listed for trading at the time of such issuance. The inability of the Company to obtain approval from any regulatory body having authority deemed by the Company to be necessary to the lawful issuance of any Shares hereby shall relieve the Company of any liability with respect to the non-issuance of the Shares as to which such approval shall not have been obtained. The Company, however, shall use its reasonable efforts to obtain all such approvals.

 

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2007 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

8. Rights as Stockholder . The Participant shall not have voting, dividend or any other rights as a stockholder of the Company with respect to the mPRSUs. Upon settlement of the Participant’s mPRSUs into Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), the Participant will obtain full voting, dividend and other rights as a stockholder of the Company.

9. No Compensation Deferrals . Neither the Plan nor this Agreement is intended to provide for an elective deferral of compensation that would be subject to Section 409A (“Section 409A”) of the Internal Revenue Code of 1986, as amended (the “Code”). If, notwithstanding the parties’ intent in this regard, at the time of the Participant’s termination of Service, he or she is determined to be a “specified employee” as defined in Code Section 409A, and one or more of the payments or benefits received or to be received by the Participant pursuant to the mPRSUs would constitute deferred compensation subject to Code Section 409A, no such payment or benefit will be provided under the mPRSUs until the earliest of (A) the date which is six (6) months after the Participant’s “separation from service” for any reason, other than death or “disability” (as such terms are used in Section 409A(a)(2) of the Code), (B) the date of the Participant’s death or “disability” (as such term is used in Section 409A(a)(2)(C) of the Code), or (C) the effective date of a “change in the ownership or effective control” or a “change in ownership of a substantial portion of the assets” of the Company (as such terms are used in Section 409A(a)(2)(A)(v) of the Code). The provisions of this Section 9 shall only apply to the extent required to avoid the Participant’s incurrence of any additional tax or interest under Code Section 409A or any regulations or U.S. Department of the Treasury (“Treasury”) guidance promulgated thereunder. In addition, if any provision of the mPRSUs would cause the Participant to incur any additional tax or interest under Code Section 409A or any regulations or Treasury guidance promulgated thereunder, the Company reserves the right, to the extent the Company deems necessary or advisable in its sole discretion, to unilaterally amend or modify the Plan and/or this Agreement to conform it to the maximum extent practicable to the original intent of the applicable provision without violating the provisions of Code Section 409A, including without limitation to limit payment or distribution of any amount of benefit hereunder in connection with a Change in Control to a transaction meeting the definitions referred to in clause (C) above, or in connection with any disability to a “disability” as referred to in (B) above; provided however that the Company makes no representation that these Performance Restricted Stock Units are not subject to Section 409A nor makes any undertaking to preclude Section 409A from applying to these mPRSUs. In addition, to the extent the Company determines it appropriate to accelerate any vesting conditions applicable to this award, then to the extent necessary to avoid the Participant’s incurring any additional tax or interest as a result of such vesting acceleration under Code Section 409A or any regulations or Treasury guidance promulgated thereunder, and notwithstanding Section 4 above, the Company may as a condition to extending such acceleration benefits provide for the Shares to be issued upon settlement of the mPRSUs to be issued on the earliest date (the “Permitted Distribution Date”) that would obviate application of such additional tax or interest rather than issuing them upon the date on which such vesting is effective as would otherwise be required under Section 2 (or as soon as practicable after such Permitted Distribution Date and in no event later than that last day of the grace period following such date permitted under Code Section 409A).

10. Administration . The Administrator shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation, and application of

 

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2007 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

the Plan as are consistent therewith and to interpret or revoke any such rules. All actions taken and all interpretations and determinations made by the Administrator shall be final and binding upon the Participant, the Company, and all other interested persons. No Administrator shall be personally liable for any action, determination, or interpretation made in good faith with respect to the Plan or this Agreement.

11. Effect on Other Employee Benefit Plans . The value of the mPRSUs granted pursuant to this Agreement shall not be included as compensation, earnings, salaries, or other similar terms used when calculating the Participant’s benefits under any employee benefit plan sponsored by the Company or any Affiliate, except as such plan otherwise expressly provides. The Company expressly reserves its rights to amend, modify, or terminate any of the Company’s or any Affiliate’s employee benefit plans.

12. No Employment Rights . The award of the mPRSUs pursuant to this Agreement shall not give the Participant any right to continued Service with the Company or an Affiliate and shall not interfere with the ability of the Employer to terminate the Participant’s Service with the Company at any time with or without cause.

13. Nature of the Grant . In accepting the mPRSUs, the Participant acknowledges that:

(a) the Plan is established voluntarily by the Company, it is discretionary in nature and may be modified, amended, suspended or terminated by the Company at any time, unless otherwise provided in the Plan and this Agreement;

(b) the grant of mPRSUs is voluntary and occasional and does not create any contractual or other right to receive future awards of mPRSUs, or benefits in lieu of mPRSUs even if mPRSUs have been awarded repeatedly in the past;

(c) all decisions with respect to future grants of mPRSUs, if any, will be at the sole discretion of the Company;

(d) the Participant’s participation in the Plan is voluntary;

(e) the mPRSUs are outside the scope of the Participant’s employment contract, if any;

(f) the mPRSUs are not part of normal or expected compensation or salary for any purpose, including, but not limited to, calculation of any overtime, severance, resignation, termination, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments;

(g) in the event that the Participant is not an employee of the Company, the grant of the mPRSUs will not be interpreted to form an employment contract or relationship with the Company; and furthermore, the grant of the mPRSUs will not be interpreted to form an employment contract with the Employer or any Affiliate;

 

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2007 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

(h) the future value of the underlying Shares is unknown and cannot be predicted with certainty;

(i) if the Participant receives Shares upon vesting of the mPRSUs, the value of such Shares may increase or decrease in value;

(j) in consideration of the grant of the mPRSUs, no claim or entitlement to compensation or damages arises from termination of the mPRSUs or diminution in value of the mPRSUs received upon vesting of mPRSUs resulting from termination of the Participant’s Service to the Company or the Employer (for any reason whatsoever and whether or not in breach of local labor laws) and the Participant irrevocably releases the Company and the Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Agreement, the Participant shall be deemed irrevocably to have waived his or her entitlement to pursue such claim.

14. Data Privacy Notice and Consent . The Participant hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of his or her personal data as described in this Agreement by and among, as applicable, the Employer, the Company and its Affiliates for the exclusive purpose of implementing, administering and managing the Participant’s participation in the Plan.

The Participant understands that the Company and the Employer may hold certain personal information about the Participant, including, but not limited to, the Participant’s name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in the Company, details of all mPRSUs or any other entitlement to shares awarded, canceled, vested, unvested or outstanding in the Participant’s favor, for the purpose of implementing, administering and managing the Plan (“Data”).

The Participant understands that Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in the Participant’s country, or elsewhere, and that the recipient’s country may have different data privacy laws and protections than the Participant’s country. The Participant understands that the Participant may request a list with the names and addresses of any potential recipients of the Data by contacting his or her local human resources representative. The Participant authorizes the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing his or her participation in the Plan, including any requisite transfer of such Data as may be required to a broker, escrow agent or other third party with whom the shares received upon vesting of the mPRSUs may be deposited. The Participant understands that Data will be held only as long as is necessary to implement, administer and manage his or her participation in the Plan. The Participant understands that he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing his or her local human resources representative. The Participant understands, however, that refusal or withdrawal of consent may affect his or her

 

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2007 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

ability to participate in the Plan. For more information on the consequences of his or her refusal to consent or withdrawal of consent, the Participant understands that he or she may contact his or her local human resources representative.

15. Amendment of Agreement . This Agreement may be amended only by a writing which specifically states that it amends this Agreement. Notwithstanding the foregoing, this Agreement may be amended unilaterally by the Committee by a writing which specifically states that it is amending this Agreement, so long as a copy of such amendment is delivered to the Participant, and provided that no such amendment adversely affects the rights of the Participant. Limiting the foregoing, the Committee reserves the right to change, by written notice to the Participant, the provisions of the mPRSUs or this Agreement in any way it may deem necessary or advisable to carry out the purpose of the grant as a result of any change in applicable laws or regulations or any future law, regulation, ruling, or judicial decision, or, to the extent permissible under the Plan (including, but not limited to, Sections 10 and 14 of the Plan).

16. Notices . Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of its Administrator. Any notice to be given to the Participant shall be addressed to the Participant at the address listed in the Employer’s records. By a notice given pursuant to this Section, either party may designate a different address for notices. Any notice shall have been deemed given when actually delivered.

17. Severability . The provisions of this Agreement are severable and if all or any part of this Agreement or the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity shall not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid. Any Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid shall, if possible, be construed in a manner which will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful and valid.

18. Construction . The mPRSUs are being issued pursuant to the Plan and are subject to the terms of the Plan. A copy of the Plan is available upon request during normal business hours at the principal executive offices of the Company. To the extent that any provision of this Agreement violates or is inconsistent with a provision of the Plan, the Plan provision shall govern and any inconsistent provision in this Agreement shall be of no force or effect.

19. Electronic Delivery . The Company may, in its sole discretion, decide to deliver any documents related to the mPRSUs granted under the Plan and participation in the Plan or future mPRSUs that may be granted under the Plan by electronic means or to request the Participant’s consent to participate in the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery and, if requested, to agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.

20. Entire Agreement . The Plan is incorporated herein by reference. The Plan and this Agreement constitute the entire agreement of the Company and the Participant with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Participant with respect to the subject matter hereof.

 

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2007 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

21. Language . If the Participant has received this Agreement or any other document related to the Plan translated into a language other than English and if the translated version is different than the English version, the English version will control.

22. Miscellaneous .

(a) The Company has established the Plan voluntarily, it is discretionary in nature and the Board may terminate, amend, or modify the Plan at any time; provided, however, that no such termination, amendment, or modification of the Plan may in any way adversely affect the Participant’s rights under this Agreement, without the Participant’s written approval unless such termination, amendment, or modification of the Plan is necessary in order to comply with any change in applicable laws or regulations or any future law, regulation, ruling, or judicial decision or as otherwise permissible under the Plan (including, but not limited to, Sections 10 and 14 of the Plan).

(b) All obligations of the Company under the Plan and this Agreement in a Change in Control shall be governed by the Plan and this Agreement, other than as set forth in Section 3(a) above.

(c) To the extent not preempted by United States federal law, this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to its principles of conflict of laws.

23. Country Specific Terms . Appendix A contains additional terms and conditions of the Agreement applicable to Participants residing in those countries. In addition, Appendix A also contains information and notices of exchange control and certain other issues of which the Participant should be aware.

24. Acceptance of Terms and Conditions . By accepting the terms and conditions of this Agreement, the Participant agrees to abide by all of the governing terms and provisions of the Plan and this Agreement. Additionally, the Participant acknowledges having read and understood the terms and conditions of the Plan and this Agreement and has had an opportunity to obtain the advice of counsel prior to accepting this Agreement. The Participant must acknowledge his or her agreement to abide by the terms and conditions of the Plan and Agreement by executing this Agreement electronically or, if otherwise instructed by the Company, by printing and signing a paper copy of this Agreement and returning it to the appropriate Company representative. In addition, the transfer or sale of the shares obtained at vesting by the Participant shall be considered an additional acknowledgment of the terms and conditions contained in the Plan and Agreement.

*    *    *    *    *

 

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2007 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

PARTICIPANT SIGNATURE   
PRINTED NAME   
DATE   

 

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2007 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

APPENDIX A

TERMS AND CONDITIONS

This Appendix A, which is part of the Agreement, contains additional terms and conditions of the Agreement that will apply to the Participant if he or she resides in one of the countries listed below. Capitalized terms used but not defined herein shall have the same meanings assigned to them in the Plan and/or the Agreement.

NOTIFICATIONS

This Appendix A also includes information regarding exchange control and certain other issues of which the Participant should be aware with respect to his or her participation in the Plan. The information is based on the securities, exchange control and other laws in effect in the respective countries as of November 2013. Such laws are often complex and change frequently. The Company therefore strongly recommends that the Participant not rely on the information as the only source of information relating to the consequences of his or her participation in the Plan because such information may be outdated when the Participant vests in the mPRSUs and/or sells any Shares acquired pursuant to the mPRSUs.

AUSTRIA

Exchange Control Information . If the Participant holds Shares acquired under the Plan outside of Austria, the Participant must submit a report to the Austrian National Bank. An exemption applies if the value of the Shares as of any given quarter does not exceed €30,000,000 or as of December 31 does not exceed €5,000,000. If the former threshold is exceeded, quarterly obligations are imposed; whereas, if the latter threshold is exceeded, annual reports must be provided. The annual reporting date is December 31 and the deadline for filing the annual report is March 31 of the following year.

When the Participant sells Shares acquired under the Plan, there may be exchange control obligations if the cash proceeds are held outside of Austria. If the transaction volume of all accounts abroad exceeds €3,000,000 the movements and balances of all accounts must be reported monthly, as of the last day of the month, on or before the fifteenth day of the following month.

BELGIUM

Tax Reporting Information. You are required to report any bank accounts opened and maintained outside Belgium on your annual tax return.

 

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2007 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

CHINA (PRC)

Exchange Control Restrictions. The Participant agrees to comply with any requirements that may be imposed by the Company in the future in order to facilitate compliance with exchange control requirements in China. These requirements may include, but are not limited to, immediate repatriation to China of the sale proceeds, an immediate sale of the mPRSUs at vesting, and/or repatriation of the cash proceeds through a special exchange control account.

FRANCE

Exchange Control Information.  If the Participant imports or exports cash ( e.g. , sales proceeds received under the Plan) with a value equal to or exceeding €7,600 and does not use a financial institution to do so, he or she must submit a report to the customs and excise authorities. If the Participant maintains a foreign bank account, he or she is required to report such account to the French tax authorities when filing his or her annual tax return.

GERMANY

Exchange Control Information.  Cross-border payments in excess of €12,500 must be reported monthly to the German Federal Bank. If the Participant uses a German bank to transfer a cross-border payment in excess of €12,500 under the Plan, the bank will make the report for the Participant.

IRELAND

Director Notification Requirement . If the Participant is a director, shadow director or secretary of an Irish Subsidiary or Related Entity of the Company, pursuant to Section 53 of the Irish Company Act 1990, he or she must notify the Irish Subsidiary or Related Entity of the Company in writing within five (5) business days of receiving or disposing of an interest in the Company ( e.g. , mPRSUs, Shares, etc.), or within five (5) business days of becoming aware of the event giving rise to the notification requirement, or within five (5) days of becoming a director, shadow director or secretary if such an interest exists at that time. This notification requirement also applies with respect to the interests of a spouse or minor child, whose interests will be attributed to the director, shadow director or secretary.

ISRAEL

No additional provisions apply.

ITALY

Plan Document Acknowledgment. By accepting the terms and conditions of the mPRSUs, the Participant acknowledges that he or she has received a copy of the Plan and the Agreement and has reviewed the Plan and the Agreement, including this Appendix A, in their entirety and fully understands and accepts all provisions of the Plan and the Agreement.

Data Privacy. In addition to the data privacy provision that is set forth in the Agreement, the Participant also consents to the following additional data privacy-related terms:

 

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2007 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

I am aware that providing the Company and my Employer with Data is necessary for participation in the Plan and that my refusal to provide such Data may affect my ability to participate in the Plan. The Controller of personal data processing is the Company with registered offices at 4650 Cushing Parkway, Fremont, California, 94538, United States and, pursuant to D.lgs 196/2003, its representatives in Italy are Lam Research S.r.l., with registered offices in Centro Direzionale Colleoni, Palazzo Sirio 3-Ing, 20041 Agrate Brianza-MI, Italy.

I understand that I may at any time exercise the rights acknowledged by Section 7 of Legislative Decree June 30, 2003 n.196, including, but not limited to, the right to access, delete, update, request the rectification of my Data and cease, for legitimate reasons, the data processing. Furthermore, I am aware that my Data will not be used for direct marketing purposes.

Exchange Control Information. Participant is responsible for all reporting requirements regarding (i) any transfers of cash or shares to or from Italy and (ii) any foreign investments or investments (including proceeds from the sale of Shares) held outside of Italy.

JAPAN

Exchange Control Information. If the Participant acquired Shares valued at more than ¥100,000,000 in a single transaction, the Participant must file a Securities Acquisition Report with the Ministry of Finance through the Bank of Japan within 20 days of the purchase of Shares.

KOREA

Exchange Control Information. If the Participant receives US$500,000 or more from the sale of Shares, Korean exchange control laws require the Participant to repatriate the proceeds to Korea within 18 months of the sale.

MALAYSIA

Director Notification Requirement . If the Participant is a Director of the local Subsidiary, he or she must notify the local Subsidiary of the grant and also provide notice of any change in his or her interest in the mPRSUs ( e.g. vesting or the sale of Shares).

Exchange Control Information. Because exchange control regulations change frequently and without notice, you should consult your legal advisor before selling shares to ensure compliance with current regulations. It is Participant’s responsibility to comply with exchange control laws in Malaysia, and neither the Company nor your employer will be liable for any fines or penalties resulting from a failure to comply with applicable laws. For purposes of compiling balance of payment statistics on the inflow and outflow of funds from Malaysia, the Bank Negara Malaysia must be notified of any remittance of funds between residents and non-residents of an amount equal to RM200,001 or greater from Malaysia.

NETHERLANDS

Insider-Trading Notification. The Participant should be aware of the Dutch insider-trading rules, which may impact the sale of Shares acquired at vesting of the mPRSUs. In particular, the Participant may be prohibited from effectuating certain transactions involving Shares if the

 

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2007 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

Participant has inside information about the Company. If the Participant is uncertain whether the insider-trading rules apply to him or her, the Participant should consult his or her personal legal advisor. By accepting the Agreement and participating in the Plan, the Participant acknowledges having read and understood this notification and acknowledges that it is the Participant’s responsibility to comply with the following Dutch insider-trading rules.

SINGAPORE

Director Notification Obligation. If the Participant is a director, associate director or shadow director of a Singaporean Subsidiary or Related Entity of the company, the Participant is subject to certain notification requirements under the Singapore Companies Act. Among these requirements is an obligation to notify the Singaporean Subsidiary or Related Entity of the Company in writing when the Participant receives an interest ( e.g. , mPRSUs or Shares) in the Company or any Subsidiary or Related Entity of the Company. In addition, the Participant must notify the Singaporean Subsidiary or Related Entity of the Company when the Participant sells Shares or shares of any Subsidiary or Related Entity of the Company (including when the Participant sells Shares acquired at vesting of the mPRSUs). These notifications must be made within two (2) days of acquiring or disposing of any interest in the Company or any Subsidiary or Related Entity of the Company. In addition, a notification of the Participant’s interests in the Company or any Subsidiary or Related Entity of the Company must be made within two (2) days of becoming a director.

Tax Information . The Participant may be eligible for certain tax favored schemes applicable to mPRSUs. The participant should consult with his or her tax advisor to determine if these tax favorable schemes apply to his or her situation.

SLOVAKIA

Exchange Control Information . It is the Participant’s obligation to comply with exchange control requirements in the Slovakia Republic, including any notification requirements applicable to opening or maintaining any foreign bank or brokerage accounts.

SLOVENIA

No additional provisions apply.

SWITZERLAND

Securities Law Information. The offer of the mPRSUs is considered a private offering in Switzerland and is therefore not subject to securities registration in Switzerland.

 

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2007 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

TAIWAN

Exchange Control Information. The Participant may acquire and remit foreign currency (including funds for the purchase of Shares and proceeds from the sale of Shares) up to US$5,000,000 per year without prior approval.

If the transaction amount is TWD500,000 or more in a single transaction, the Participant must submit a Foreign Exchange Transaction Form. If the transaction amount is US$500,000 or more in a single transaction, the Participant must also provide supporting documentation to the satisfaction of the remitting bank.

UNITED KINGDOM

Securities Requirement. Due to legal requirements, all mPRSUs at the time of vesting will be settled in Shares.

 

Page 15 of 17


LAM RESEARCH CORPORATION

Market-Based Performance Restricted Stock Unit Award Agreement

EXHIBIT A

Participant (Name & Employee Number):

Grant Date:

Target Number of mPRSUs :

Performance Vesting Date: February [    ], 201[X + 1]

Payout Range: 0% to 150% of Target Number of mPRSUs

Performance Period: January 1, 201[  ] to December 31, 201[X]

Performance Criteria:

 

    Index

 

    Vesting Formula

Target Number of mPRSUs x (100% + ((LRCX TSR % – Index TSR %) x 2)) = mPRSUs vested (subject to the maximum in the Payout Range)

 

    Target Number of mPRSUs is vested if the LRCX TSR % equals the Index TSR %

 

    Number of mPRSUs vested increases by 2% of target for each 1% that the LRCX TSR % exceeds the Index TSR %

 

    Number of mPRSUs vested decreases by 2% of target for each 1% that the LRCX TSR % trails the Index TSR %

 

    The result of the Vesting Formula is rounded down to the nearest whole number

 

    LRCX TSR %

(LRCX 50-trading day average closing price as of the last trading day of the Performance Period – LRCX 50-trading day average closing price on the trading day immediately prior to the beginning of the Performance Period) ÷ (LRCX 50-trading day average closing price on the trading day immediately prior to the beginning of the Performance Period) x 100

 

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    Index TSR %

(Index 50-trading day average closing price as of the last trading day of the Performance Period – Index 50-trading day average closing price on the trading day immediately prior to the beginning of the Performance Period) ÷ (Index 50-trading day average closing price on the trading day immediately prior to the beginning of the Performance Period) x 100

 

    Notes:

 

    The LRCX TSR % calculation excludes any dividends paid on the Company’s common stock.

 

    All Index TSR % calculations are based on the companies traded on the Index as of the applicable dates

 

    E.g., The Index is used as of the applicable dates even if companies are added / removed from the Index during the Performance Period.

 

    The Company’s relative performance is determined using calculations based on the 50-trading day average closing price methodology for all TSR calculations.

 

    In the event of a Change in Control, the closing price of the Company’s common stock as of the closing date of the Change in Control is used to convert the sum of the “performance pro rata” and “target pro rata” number of Shares into the Cash Award.

 

    If the Index is no longer traded / calculated, the Company’s relative performance is determined using calculations based on the companies included in the Index at the time trading / calculation last occurred. The Compensation Committee will calculate the Index TSR % in the manner that most closely approximates the Index in its sole discretion.

Leave of Absence: 31st day (or 91st day if reemployment guaranteed by statute or contract)

 

Page 17 of 17

Exhibit 10.7

LAM RESEARCH CORPORATION (Novellus Systems, Inc.)

2011 Stock Incentive Plan (As Amended)

Restricted Stock Unit Award Agreement

(U.S. Participants)

Pursuant to the terms of the 2011 Stock Incentive Plan (As Amended) (the “Plan”) Lam Research Corporation, a Delaware corporation (the “Company”), hereby awards restricted stock units (“RSUs”) to the Participant on the terms and conditions as set forth in this Restricted Stock Unit Award Agreement (including the attached Exhibit A) (the “Agreement”) and the Plan. Capitalized terms used but not defined in this Agreement shall have the meaning specified in the Plan. This Agreement is effective as of the Grant Date.

NOW, THEREFORE , it is hereby agreed as follows:

1. Award of RSUs . Subject to the terms and conditions of this Agreement and the Plan (the terms of which are incorporated herein by reference) and effective as of the date set forth above, the Company hereby grants to the Participant a Number of RSUs as set forth in Exhibit A. The RSUs represent an unfunded, unsecured promise by the Company to deliver Shares subject to the terms and conditions of this Agreement.

2. Vesting .

(a) Subject to the terms and conditions of this Agreement and provided that the Participant continues to provide Service (as defined in Section 3 below) to the Company (or any Related Entity) through the applicable Vesting Date(s) as set forth in Exhibit A, the RSUs will vest and become payable in Shares pursuant to the applicable Vesting Date(s) as set forth in Exhibit A.

(b) In the event of a Change of Control of the Company, the RSUs are governed by Section 11 of the Plan (subject to the terms of any applicable Employment or Change in Control Agreement).

3. Effect of Termination of Service or Leave of Absence .

(a) For purposes of this Agreement, Continuous Service shall mean the performance of services for the Company (or any Related Entity) in the capacity of an Employee or Director and shall be considered terminated on the later of the last day the Participant is on payroll or the last day of Continuous Services as a director for a Director (“Service”). In the event of termination of the Participant’s Service by the Participant or by the Company or a Related Entity for any reason, excluding Participant’s death or Disability before all RSUs have vested, the unvested RSUs shall be cancelled by the Company.

(b) In the event of termination of the Participant’s Service due to death, a portion of the RSUs granted to the Participant shall vest on the date of death. To determine the applicable number of Shares, the Number of RSUs (as set forth in Exhibit A) shall be multiplied by the greater of (x) 50% or (y) the percentage of full months worked from the Grant Date until the date of death (the “Death Vesting Date”) over the total number of full months from the Grant

 

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2011 Stock Incentive (As Amended) Plan RSU Award Agreement for U.S. Participants

 

Date until the last Vesting Date (as set forth in Exhibit A). Any remaining unvested portion of the RSUs shall be cancelled.

(c) In the event of termination of the Participant’s Service due to Disability, a portion of the RSUs granted to the Participant shall vest on the date the Disability is incurred. To determine the applicable number of Shares, the Number of RSUs (as set forth in Exhibit A) shall be multiplied by the greater of (x) 50% or (y) the percentage of full months worked from the Grant Date until the date the Disability is incurred (the “Disability Vesting Date”, and collectively, with the Vesting Date(s) set forth in Exhibit A, and the “Death Vesting Date”, the “Vesting Date”) over the total number of full months from the Grant Date until the last Vesting Date (as set forth in Exhibit A). Any remaining unvested portion of the RSUs shall be cancelled.

(d) Vesting of the RSUs will be suspended and vesting credit will no longer accrue as of the day of the leave of absence as set forth in Exhibit A, unless otherwise determined by the Administrator or required by contract or statute. If the Participant returns to Service immediately after the end of an approved leave of absence, vesting credit shall continue to accrue from that date of continued Service.

4. Form and Timing of Payment .

(a) Subject to Section 5 of this Agreement and provided that the Participant has satisfied the vesting requirements of Section 2 of this Agreement, on each Vesting Date, as applicable, the RSUs shall automatically be converted into unrestricted Shares. Such Shares will be issued to the Participant (as evidenced by the appropriate entry in the books of the Company or a duly authorized transfer agent of the Company) on the applicable Vesting Date (or as soon as practicable), but in any event, within the period ending on the later to occur of the date that is 2  1 2 months after the end of (i) the Participant’s tax year that includes the applicable Vesting Date, or (ii) the Company’s tax year that includes the applicable Vesting Date.

(b) Shares issued in respect of RSUs shall be deemed to be issued in consideration of past services actually rendered by the Participant to the Company or a Related Entity or for its benefit for which the Participant has not previously been compensated or for future services to be rendered, as the case may be, which the Company deems to have a value at least equal to the aggregate par value of the Shares subject to the RSUs.

5. Tax Withholding Obligations . Regardless of any action the Company or the Participant’s employer (the “Employer”) takes with respect to any or all income tax (including federal, state and local taxes), social insurance, payroll tax, or other tax-related withholding (“Tax-Related Items”), the Participant acknowledges that the ultimate liability for all Tax-Related Items legally due by the Participant is and remains the Participant’s responsibility and that the Company and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the RSUs, including the grant of the RSUs, the vesting of the RSUs, or the receipt of an equivalent cash payment, the subsequent sale of any Shares acquired at vesting and the receipt of any dividends; and (ii) do not commit to structure the terms of the grant or any aspect of the RSUs to reduce or eliminate the Participant’s liability for Tax-Related Items or achieve any particular tax result.

 

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2011 Stock Incentive (As Amended) Plan RSU Award Agreement for U.S. Participants

 

Prior to the issuance of Shares upon vesting of the RSUs (or any other tax or withholding event), the Participant shall pay, or make arrangements satisfactory to the Company (in the Company’s sole discretion) to satisfy all withholding obligations. In those cases where a prior arrangement has not been made (or where the amount of money provided under the prior arrangement is insufficient to satisfy the obligations for Tax-Related Items), the Company shall withhold a number of whole Shares otherwise deliverable at vesting having a Fair Market Value sufficient to satisfy the statutory minimum (or such higher amount as is allowable without adverse accounting consequences) of the Participant’s estimated obligations for Tax-Related Items applicable to the RSUs; such withholding will result in the issuance to the participant of a lower number of Shares.

The Company and/or the Employer may also, in lieu of or in addition to the foregoing, at the Company’s sole discretion, as authorized herein by the Participant, withhold all applicable Tax-Related Items legally payable by the Participant from the Participant’s wages or other cash compensation or to withhold in one of the following ways, as determined by the Company: (i) require the Participant to deposit with the Company an amount of cash sufficient to meet his or her obligation for Tax-Related Items, and/or (ii) sell or arrange for the sale of Shares to be issued on the vesting of the RSUs to satisfy the withholding obligation. If the Participant’s obligation for Tax-Related Items is satisfied as described in (ii) of this section, the Company will endeavor to sell only the number of Shares required to satisfy the Participant’s obligations for Tax-Related Items; however, the Participant agrees that the Company may sell more Shares than necessary to cover the Tax-Related Items and that in such event, the Company will reimburse the Participant for the excess amount withheld, in cash and without interest. The Participant shall pay the Employer any amount of Tax-Related Items the Employer may be required to withhold as a result of the Participant’s receipt of the RSUs or the vesting of the RSUs that cannot be satisfied by the means previously described. The Company may refuse to deliver Shares to the Participant if the Participant fails to comply with his or her obligation in connection with the Tax-Related Items as described herein. The Participant hereby consents to any action reasonably taken by the Company and/or the Employer to meet his or her obligation for Tax-Related Items.

Further, in consideration of the grant of the RSUs, no claim or entitlement to compensation or damages arises if, in satisfying the Participant’s (and/or the Employer’s) obligation for Tax-Related Items, the Company and/or the Employer withholds an amount in excess of the amount legally required to be withheld, the Participant irrevocably releases the Company and the Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Agreement, the Participant shall be deemed irrevocably to have waived his or her entitlement to pursue such claim or damages.

6. Restriction on Transferability . Prior to vesting and delivery of the Shares, neither the RSUs, nor the Shares or any beneficial interest therein, may be sold, transferred, pledged, assigned, or otherwise alienated at any time. Any attempt to do so contrary to the provisions hereof shall be null and void. Notwithstanding the above, distribution can be made pursuant to will, the laws of descent and distribution, and if provided by the Administrator, intra-family transfer instruments, or to an inter vivos trust, or as otherwise provided by the Administrator. The terms of this Agreement shall be binding upon the executors, administrators, heirs, successors and assigns of the Participant.

 

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2011 Stock Incentive (As Amended) Plan RSU Award Agreement for U.S. Participants

 

7. Requirements of Law . The issuance of Shares upon vesting of the RSUs is subject to Sections 9 and 14(b) of the Plan, which generally provides that any such issuance shall be subject to compliance by the Company and the Participant with all applicable requirements of law relating thereto and with all applicable regulations of any stock exchange on which the Shares may be listed for trading at the time of such issuance. The inability of the Company to obtain approval from any regulatory body having authority deemed by the Company to be necessary to the lawful issuance of any Shares hereby shall relieve the Company of any liability with respect to the non-issuance of the Shares as to which such approval shall not have been obtained. The Company, however, shall use its reasonable efforts to obtain all such approvals.

8. Rights as Stockholder . The Participant shall not have voting, dividend or any other rights as a stockholder of the Company with respect to the RSUs. Upon settlement of the Participant’s RSUs into Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), the Participant will obtain full voting, dividend and other rights as a stockholder of the Company.

9. No Compensation Deferrals . Neither the Plan nor this Agreement is intended to provide for an elective deferral of compensation that would be subject to Section 409A (“Section 409A”) of the Internal Revenue Code of 1986, as amended (the “Code”). If, notwithstanding the parties’ intent in this regard, at the time of the Participant’s termination of Service, he or she is determined to be a “specified employee” as defined in Code Section 409A, and one or more of the payments or benefits received or to be received by the Participant pursuant to the RSUs would constitute deferred compensation subject to Code Section 409A, no such payment or benefit will be provided under the RSUs until the earliest of (A) the date which is six (6) months after the Participant’s “separation from service” for any reason, other than death or “disability” (as such terms are used in Section 409A(a)(2) of the Code), (B) the date of the Participant’s death or “disability” (as such term is used in Section 409A(a)(2)(C) of the Code), or (C) the effective date of a “change in the ownership or effective control” or a “change in ownership of a substantial portion of the assets” of the Company (as such terms are used in Section 409A(a)(2)(A)(v) of the Code). The provisions of this Section 9 shall only apply to the extent required to avoid the Participant’s incurrence of any additional tax or interest under Code Section 409A or any regulations or U.S. Department of the Treasury (“Treasury”) guidance promulgated thereunder. In addition, if any provision of the RSUs would cause the Participant to incur any additional tax or interest under Code Section 409A or any regulations or Treasury guidance promulgated thereunder, the Company reserves the right, to the extent the Company deems necessary or advisable in its sole discretion, to unilaterally amend or modify the Plan and/or this Agreement to conform it to the maximum extent practicable to the original intent of the applicable provision without violating the provisions of Code Section 409A, including without limitation to limit payment or distribution of any amount of benefit hereunder in connection with a Change in Control to a transaction meeting the definitions referred to in clause (C) above, or in connection with any disability to a “disability” as referred to in (B) above; provided however that the Company makes no representation that these RSUs are not subject to Section 409A nor makes any undertaking to preclude Section 409A from applying to these RSUs. In addition, to the extent the Company determines it appropriate to accelerate any vesting conditions applicable to this award, then to the extent necessary to avoid the Participant’s incurring any additional tax or interest as a result of such vesting acceleration under Code Section 409A or any regulations or Treasury guidance promulgated thereunder, and notwithstanding Section 4 above, the Company

 

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2011 Stock Incentive (As Amended) Plan RSU Award Agreement for U.S. Participants

 

may as a condition to extending such acceleration benefits provide for the Shares to be issued upon settlement of the RSUs to be issued on the earliest date (the “Permitted Distribution Date”) that would obviate application of such additional tax or interest rather than issuing them upon the date on which such vesting is effective as would otherwise be required under Section 2 (or as soon as practicable after such Permitted Distribution Date and in no event later than that last day of the grace period following such date permitted under Code Section 409A).

10. Administration . The Administrator shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation, and application of the Plan as are consistent therewith and to interpret or revoke any such rules. All actions taken and all interpretations and determinations made by the Administrator shall be final and binding upon the Participant, the Company, and all other interested persons. No Administrator shall be personally liable for any action, determination, or interpretation made in good faith with respect to the Plan or this Agreement.

11. Effect on Other Employee Benefit Plans . The value of the RSUs granted pursuant to this Agreement shall not be included as compensation, earnings, salaries, or other similar terms used when calculating the Participant’s benefits under any employee benefit plan sponsored by the Company or any Related Entity, except as such plan otherwise expressly provides. The Company expressly reserves its rights to amend, modify, or terminate any of the Company’s or any Related Entity’s employee benefit plans.

12. No Employment Rights . The award of the RSUs pursuant to this Agreement shall not give the Participant any right to continue providing Service to the Company or a Related Entity and shall not interfere with the ability of the Employer to terminate the Participant’s Service with the Company at any time with or without cause.

13. Nature of the Grant . In accepting the RSUs, the Participant acknowledges that:

(a) the Plan is established voluntarily by the Company, it is discretionary in nature and may be modified, amended, suspended or terminated by the Company at any time, unless otherwise provided in the Plan and this Agreement;

(b) the grant of the RSUs is voluntary and occasional and does not create any contractual or other right to receive future awards of RSUs, or benefits in lieu of RSUs even if RSUs have been awarded repeatedly in the past;

(c) all decisions with respect to future grants of RSUs, if any, will be at the sole discretion of the Company;

(d) the Participant’s participation in the Plan is voluntary;

(e) the RSUs are outside the scope of the Participant’s employment contract, if any;

(f) the RSUs are not part of normal or expected compensation or salary for any purpose, including, but not limited to, calculation of any overtime, severance, resignation,

 

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2011 Stock Incentive (As Amended) Plan RSU Award Agreement for U.S. Participants

 

termination, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments;

(g) in the event that the Participant is not an employee of the Company, the grant of the RSUs will not be interpreted to form an employment contract or relationship with the Company; and furthermore, the grant of the RSUs the will not be interpreted to form an employment contract with the Employer or any Related Entity;

(h) the future value of the underlying Shares is unknown and cannot be predicted with certainty;

(i) if the Participant receives Shares upon vesting of the RSUs, the value of such Shares may increase or decrease in value;

(j) in consideration of the grant of the RSUs, no claim or entitlement to compensation or damages arises from termination of the RSUs or diminution in value of the RSUs or Shares received upon vesting of RSUs resulting from termination of the Participant’s Service to the Company or the Employer (for any reason whatsoever and whether or not in breach of local labor laws) and the Participant irrevocably releases the Company and the Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Agreement, the Participant shall be deemed irrevocably to have waived his or her entitlement to pursue such claim.

14. Amendment of Agreement . This Agreement may be amended only by a writing which specifically states that it amends this Agreement. Notwithstanding the foregoing, this Agreement may be amended unilaterally by the Committee by a writing which specifically states that it is amending this Agreement, so long as a copy of such amendment is delivered to the Participant, and provided that no such amendment adversely affects the rights of the Participant. Limiting the foregoing, the Committee reserves the right to change, by written notice to the Participant, the provisions of the RSUs or this Agreement in any way it may deem necessary or advisable to carry out the purpose of the grant as a result of any change in applicable laws or regulations or any future law, regulation, ruling, or judicial decision, or, to the extent permissible under the Plan (including, but not limited to Sections 10, 11 and 13 of the Plan).

15. Notices . Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of its Administrator. Any notice to be given to the Participant shall be addressed to the Participant at the address listed in the Employer’s records. By a notice given pursuant to this Section, either party may designate a different address for notices. Any notice shall have been deemed given when actually delivered.

16. Severability . The provisions of this Agreement are severable and if all or any part of this Agreement or the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity shall not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid. Any Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid shall, if possible, be construed in a manner which

 

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2011 Stock Incentive (As Amended) Plan RSU Award Agreement for U.S. Participants

 

will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful and valid.

17. Construction . The RSUs are being issued pursuant to the Plan and are subject to the terms of the Plan. A copy of the Plan is available upon request during normal business hours at the principal executive offices of the Company. To the extent that any provision of this Agreement violates or is inconsistent with a provision of the Plan, the Plan provision shall govern and any inconsistent provision in this Agreement shall be of no force or effect.

18. Electronic Delivery . The Company may, in its sole discretion, decide to deliver any documents related to the RSUs granted under the Plan and participation in the Plan or future RSUs that may be granted under the Plan by electronic means or to request the Participant’s consent to participate in the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery and, if requested, to agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.

19. Entire Agreement . The Plan is incorporated herein by reference. The Plan and this Agreement constitute the entire agreement of the Company and the Participant with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Participant with respect to the subject matter hereof.

20. Miscellaneous .

(a) The Company has established the Plan voluntarily, it is discretionary in nature and the Board may terminate, amend, or modify the Plan at any time; provided, however, that no such termination, amendment, or modification of the Plan may in any way adversely affect the Participant’s rights under this Agreement, without the Participant’s written approval unless such termination, amendment, or modification of the Plan is necessary in order to comply with any change in applicable laws or regulations or any future law, regulation, ruling, or judicial decision or otherwise permissible under the Plan (including, but not limited to Sections 10, 11 and 13 of the Plan).

(b) All obligations of the Company under the Plan and this Agreement in a Change of Control shall be governed by the Plan, other than as set forth in Section 2(b) above.

(c) By signing this Agreement, the Participant acknowledges that his or her personal employment or Service information regarding participation in the Plan and information necessary to determine and pay, if applicable, benefits under the Plan must be shared with other entities, including companies related to the Company and persons responsible for certain acts in the administration of the Plan. By signing this Agreement, the Participant consents to such transmission of personal data as the Company believes is appropriate to administer the Plan.

(d) To the extent not preempted by federal law, this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to its principles of conflict of laws.

 

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2011 Stock Incentive (As Amended) Plan RSU Award Agreement for U.S. Participants

 

21. Acceptance of Terms and Conditions . By accepting the terms of this Agreement, the Participant agrees to abide by all of the governing terms and provisions of the Plan and this Agreement. Additionally, the Participant acknowledges having read and understood the terms and conditions of the Plan and this Agreement and has had an opportunity to obtain the advice of counsel prior to accepting this Agreement. The Participant must acknowledge his or her agreement to abide by the terms and conditions of the Plan and Agreement by executing this Agreement electronically or, if otherwise instructed by the Company, by printing and signing a paper copy of this Agreement and returning it to the appropriate Company representative. In addition, the transfer or sale of the shares obtained at vesting by the Participant shall be considered an additional acknowledgment of the terms and conditions contained in the Plan and Agreement.

*    *    *    *    *

 

PARTICIPANT SIGNATURE
PRINTED NAME
DATE

 

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LAM RESEARCH CORPORATION (Novellus Systems, Inc.)

2011 Stock Incentive Plan (As Amended)

Restricted Stock Unit Award Agreement

EXHIBIT A

Participant (Name & Employee Number):

Grant Date:

Number of RSUs :

 

Vesting Date(s):  

[Insert Number] RSUs on [Insert Date]

 

[Insert Number] RSUs on [Insert Date]

 

[Insert Number] RSUs on [Insert Date]

Leave of Absence: 31 st day (or 91 st day if reemployment guaranteed by statute or contract)

 

Page 9 of 9

Exhibit 10.8

LAM RESEARCH CORPORATION (Novellus Systems, Inc.)

2011 Stock Incentive Plan (As Amended)

Restricted Stock Unit Award Agreement

(International Participants)

Pursuant to the terms of the 2011 Stock Incentive Plan (As Amended) (the “Plan”) Lam Research Corporation, a Delaware corporation (the “Company”), hereby awards restricted stock units (“RSUs”) to the Participant on the terms and conditions as set forth in this Restricted Stock Unit Award Agreement (including the attached Exhibit A) (the “Agreement”) and the Plan. Capitalized terms used but not defined in this Agreement shall have the meaning specified in the Plan. This Agreement is effective as of the Grant Date.

NOW, THEREFORE , it is hereby agreed as follows:

1. Award of RSUs . Subject to the terms and conditions of this Agreement and the Plan (the terms of which are incorporated herein by reference) and effective as of the date set forth above, the Company hereby grants to the Participant a Number of RSUs as set forth in Exhibit A. The RSUs represent an unfunded, unsecured promise by the Company to deliver Shares subject to the terms and conditions of this Agreement.

2. Vesting .

(a) Subject to the terms and conditions of this Agreement and provided that the Participant continues to provide Service (as defined in Section 3 below) to the Company (or any Related Entity) through the applicable Vesting Date(s) as set forth in Exhibit A, the RSUs will vest and become payable in Shares pursuant to the applicable Vesting Date(s) as set forth in Exhibit A.

(b) In the event of a Change of Control of the Company, the RSUs are governed by Section 11 of the Plan (subject to the terms of any applicable Employment or Change in Control Agreement).

3. Effect of Termination of Service or Leave of Absence .

(a) For purposes of this Agreement, Continuous Service shall mean the performance of services for the Company (or any Related Entity) in the capacity of an Employee or Director and shall be considered terminated on the later of the last day the Participant is on payroll or the last day of Continuous Service as a director for a Director (“Service”). In the event of termination of the Participant’s Service by the Participant or by the Company or a Related Entity for any reason, excluding Participant’s death or Disability before all RSUs have vested, the unvested RSUs shall be cancelled by the Company.

(b) In the event of termination of the Participant’s Service due to death, a portion of the RSUs granted to the Participant shall vest on the date of death. To determine the applicable number of Shares, the Number of RSUs (as set forth in Exhibit A) shall be multiplied by the greater of (x) 50% or (y) the percentage of full months worked from the Grant Date until the date of death (the “Death Vesting Date”) over the total number of full months from the Grant

 

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2011 Stock Incentive Plan (As Amended) RSU Award Agreement for International Participants

 

Date until the last Vesting Date (as set forth in Exhibit A). Any remaining unvested portion of the RSUs shall be cancelled.

(c) In the event of termination of the Participant’s Service due to Disability, a portion of the RSUs granted to the Participant shall vest on the date the Disability is incurred. To determine the applicable number of Shares, the Number of RSUs (as set forth in Exhibit A) shall be multiplied by the greater of (x) 50% or (y) the percentage of full months worked from the Grant Date until the date the Disability is incurred (the “Disability Vesting Date”, and collectively, with the Vesting Date(s) set forth in Exhibit A, and the “Death Vesting Date”, the “Vesting Date”) over the total number of full months from the Grant Date until the last Vesting Date (as set forth in Exhibit A). Any remaining unvested portion of the RSUs shall be cancelled.

(d) Vesting of the RSUs will be suspended and vesting credit will no longer accrue as of the day of the leave of absence as set forth in Exhibit A, unless otherwise determined by the Administrator or required by contract, statute or applicable local law. If the Participant returns to Service immediately after the end of an approved leave of absence, vesting credit shall continue to accrue from that date of continued Service.

4. Form and Timing of Payment .

(a) Subject to Section 5 of this Agreement and provided that the Participant has satisfied the vesting requirements of Section 2 of this Agreement, on each Vesting Date, as applicable, the RSUs shall automatically be converted into unrestricted Shares. Such Shares will be issued to the Participant (as evidenced by the appropriate entry in the books of the Company or a duly authorized transfer agent of the Company) on the applicable Vesting Date (or as soon as practicable), but in any event, within the period ending on the later to occur of the date that is 2  1 2 months after the end of (i) the Participant’s tax year that includes the applicable Vesting Date, or (ii) the Company’s tax year that includes the applicable Vesting Date.

(b) Shares issued in respect of RSUs shall be deemed to be issued in consideration of past services actually rendered by the Participant to the Company or a Related Entity or for its benefit for which the Participant has not previously been compensated or for future services to be rendered, as the case may be, which the Company deems to have a value at least equal to the aggregate par value of the Shares subject to the RSUs.

5. Tax Withholding Obligations . Regardless of any action the Company or the Participant’s employer (the “Employer”) takes with respect to any or all income tax (including federal, state and local taxes), social insurance, payroll tax, payment on account or other tax-related withholding (“Tax-Related Items”), the Participant acknowledges that the ultimate liability for all Tax-Related Items legally due by the Participant is and remains the Participant’s responsibility and that the Company and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the RSUs, including the grant of the RSUs, the vesting of the RSUs, or the receipt of an equivalent cash payment, the subsequent sale of any Shares acquired at vesting and the receipt of any dividends; and (ii) do not commit to structure the terms of the grant or any aspect of the RSUs to reduce or eliminate the Participant’s liability for Tax-Related Items or achieve any particular tax result.

 

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2011 Stock Incentive Plan (As Amended) RSU Award Agreement for International Participants

 

Prior to the issuance of Shares upon vesting of the RSUs (or any other tax or withholding event), the Participant shall pay, or make arrangements satisfactory to the Company (in the Company’s sole discretion) to satisfy all withholding (and payment on account, where applicable) obligations. In those cases where a prior arrangement has not been made (or where the amount of money provided under the prior arrangement is insufficient to satisfy the obligations for Tax-Related Items), the Company shall withhold a number of whole Shares otherwise deliverable at vesting having a Fair Market Value sufficient to satisfy the statutory minimum (or such higher amount as is allowable without adverse accounting consequences) of the Participant’s estimated obligations for Tax-Related Items applicable to the RSUs; such withholding will result in the issuance to the participant of a lower number of Shares.

The Company and/or the Employer may also, in lieu of or in addition to the foregoing, at the Company’s sole discretion as authorized herein by the Participant, withhold all applicable Tax-Related Items legally payable by the Participant from the Participant’s wages or other cash compensation or to withhold in one of the following ways, as determined by the Company: (i) require the Participant to deposit with the Company an amount of cash sufficient to meet his or her obligation for Tax-Related Items, and/or (ii) sell or arrange for the sale of Shares to be issued on the vesting of the RSUs to satisfy the withholding (or payment on account, when applicable) obligation. If the Participant’s obligation for Tax-Related Items is satisfied as described in (ii) of this section, the Company will endeavor to sell only the number of Shares required to satisfy the Participant’s obligations for Tax-Related Items; however, the Participant agrees that the Company may sell more Shares than necessary to cover the Tax-Related Items and that in such event, the Company will reimburse the Participant for the excess amount withheld, in cash and without interest. The Participant shall pay to the Employer any amount of Tax-Related Items that the Employer may be required to withhold as a result of the Participant’s receipt of the RSUs or the vesting of the RSUs that cannot be satisfied by the means previously described. The Company may refuse to deliver Shares to the Participant if the Participant fails to comply with his or her obligation in connection with the Tax-Related Items as described herein. The Participant hereby consents to any action reasonably taken by the Company and/or the Employer to meet his or her obligation for Tax-Related Items.

Further, in consideration of the grant of the RSUs, no claim or entitlement to compensation or damages arises if, in satisfying the Participant’s (and/or the Employer’s) obligation for Tax-Related Items, the Company and/or the Employer withholds an amount in excess of the amount legally required to be withheld, the Participant irrevocably releases the Company and the Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Agreement, the Participant shall be deemed irrevocably to have waived his or her entitlement to pursue such claim or damages.

6. Restriction on Transferability . Prior to vesting and delivery of the Shares, neither the RSUs, nor the Shares or any beneficial interest therein, may be sold, transferred, pledged, assigned, or otherwise alienated at any time. Any attempt to do so contrary to the provisions hereof shall be null and void. Notwithstanding the above, distribution can be made pursuant to will, the laws of descent and distribution, and if provided by the Administrator, intra-family transfer instruments, or to an inter vivos trust, or as otherwise provided by the Administrator.

 

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2011 Stock Incentive Plan (As Amended) RSU Award Agreement for International Participants

 

The terms of this Agreement shall be binding upon the executors, administrators, heirs, successors and assigns of the Participant.

7. Requirements of Law . The issuance of Shares upon vesting of the RSUs is subject to Sections 9 and 14(b) of the Plan, which generally provides that any such issuance shall be subject to compliance by the Company and the Participant with all applicable requirements of law relating thereto and with all applicable regulations of any stock exchange on which the Shares may be listed for trading at the time of such issuance. The inability of the Company to obtain approval from any regulatory body having authority deemed by the Company to be necessary to the lawful issuance of any Shares hereby shall relieve the Company of any liability with respect to the non-issuance of the Shares as to which such approval shall not have been obtained. The Company, however, shall use its reasonable efforts to obtain all such approvals.

8. Rights as Stockholder . The Participant shall not have voting, dividend or any other rights as a stockholder of the Company with respect to the RSUs. Upon settlement of the Participant’s RSUs into Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), the Participant will obtain full voting, dividend and other rights as a stockholder of the Company.

9. No Compensation Deferrals . Neither the Plan nor this Agreement is intended to provide for an elective deferral of compensation that would be subject to Section 409A (“Section 409A”) of the Internal Revenue Code of 1986, as amended (the “Code”). If, notwithstanding the parties’ intent in this regard, at the time of the Participant’s termination of Service, he or she is determined to be a “specified employee” as defined in Code Section 409A, and one or more of the payments or benefits received or to be received by the Participant pursuant to the RSUs would constitute deferred compensation subject to Code Section 409A, no such payment or benefit will be provided under the RSUs until the earliest of (A) the date which is six (6) months after the Participant’s “separation from service” for any reason, other than death or “disability” (as such terms are used in Section 409A(a)(2) of the Code), (B) the date of the Participant’s death or “disability” (as such term is used in Section 409A(a)(2)(C) of the Code), or (C) the effective date of a “change in the ownership or effective control” or a “change in ownership of a substantial portion of the assets” of the Company (as such terms are used in Section 409A(a)(2)(A)(v) of the Code). The provisions of this Section 9 shall only apply to the extent required to avoid the Participant’s incurrence of any additional tax or interest under Code Section 409A or any regulations or U.S. Department of the Treasury (“Treasury”) guidance promulgated thereunder. In addition, if any provision of the RSUs would cause the Participant to incur any additional tax or interest under Code Section 409A or any regulations or Treasury guidance promulgated thereunder, the Company reserves the right, to the extent the Company deems necessary or advisable in its sole discretion, to unilaterally amend or modify the Plan and/or this Agreement to conform it to the maximum extent practicable to the original intent of the applicable provision without violating the provisions of Code Section 409A, including without limitation to limit payment or distribution of any amount of benefit hereunder in connection with a Change in Control to a transaction meeting the definitions referred to in clause (C) above, or in connection with any disability to a “disability” as referred to in (B) above; provided however that the Company makes no representation that these RSUs are not subject to Section 409A nor makes any undertaking to preclude Section 409A from applying to these RSUs. In addition, to the extent the Company determines it appropriate to accelerate any vesting conditions applicable

 

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2011 Stock Incentive Plan (As Amended) RSU Award Agreement for International Participants

 

to this award, then to the extent necessary to avoid the Participant’s incurring any additional tax or interest as a result of such vesting acceleration under Code Section 409A or any regulations or Treasury guidance promulgated thereunder, and notwithstanding Section 4 above, the Company may as a condition to extending such acceleration benefits provide for the Shares to be issued upon settlement of the RSUs to be issued on the earliest date (the “Permitted Distribution Date”) that would obviate application of such additional tax or interest rather than issuing them upon the date on which such vesting is effective as would otherwise be required under Section 2 (or as soon as practicable after such Permitted Distribution Date and in no event later than that last day of the grace period following such date permitted under Code Section 409A).

10. Administration . The Administrator shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation, and application of the Plan as are consistent therewith and to interpret or revoke any such rules. All actions taken and all interpretations and determinations made by the Administrator shall be final and binding upon the Participant, the Company, and all other interested persons. No Administrator shall be personally liable for any action, determination, or interpretation made in good faith with respect to the Plan or this Agreement.

11. Effect on Other Employee Benefit Plans . The value of the RSUs granted pursuant to this Agreement shall not be included as compensation, earnings, salaries, or other similar terms used when calculating the Participant’s benefits under any employee benefit plan sponsored by the Company or any Related Entity, except as such plan otherwise expressly provides. The Company expressly reserves its rights to amend, modify, or terminate any of the Company’s or any Related Entity’s employee benefit plans.

12. No Employment Rights . The award of the RSUs pursuant to this Agreement shall not give the Participant any right to continued Service with the Company or a Related Entity and shall not interfere with the ability of the Employer to terminate the Participant’s Service with the Company at any time with or without cause.

13. Nature of the Grant . In accepting the RSUs, the Participant acknowledges that:

(a) the Plan is established voluntarily by the Company, it is discretionary in nature and may be modified, amended, suspended or terminated by the Company at any time, unless otherwise provided in the Plan and this Agreement;

(b) the grant of the RSUs is voluntary and occasional and does not create any contractual or other right to receive future awards of the RSUs, or benefits in lieu of RSUs even if RSUs have been awarded repeatedly in the past;

(c) all decisions with respect to future grants of RSUs, if any, will be at the sole discretion of the Company;

(d) the Participant’s participation in the Plan is voluntary;

(e) the RSUs are outside the scope of the Participant’s employment contract, if any;

 

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2011 Stock Incentive Plan (As Amended) RSU Award Agreement for International Participants

 

(f) the RSUs are not part of normal or expected compensation or salary for any purpose, including, but not limited to, calculation of any overtime, severance, resignation, termination, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments;

(g) in the event that the Participant is not an employee of the Company, the grant of the RSUs will not be interpreted to form an employment contract or relationship with the Company; and furthermore, the grant of the RSUs will not be interpreted to form an employment contract with the Employer or any Related Entity;

(h) the future value of the underlying Shares is unknown and cannot be predicted with certainty;

(i) if the Participant receives Shares upon vesting of the RSUs, the value of such Shares may increase or decrease in value;

(j) in consideration of the grant of the RSUs, no claim or entitlement to compensation or damages arises from termination of the RSUs or diminution in value of the RSUs or shares received upon vesting of RSUs resulting from termination of the Participant’s Service to the Company or the Employer (for any reason whatsoever and whether or not in breach of local labor laws) and the Participant irrevocably releases the Company and the Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Agreement, the Participant shall be deemed irrevocably to have waived his or her entitlement to pursue such claim.

14. Data Privacy Notice and Consent . The Participant hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of his or her personal data as described in this Agreement by and among, as applicable, the Employer, the Company and its Related Entities for the exclusive purpose of implementing, administering and managing the Participant’s participation in the Plan.

The Participant understands that the Company and the Employer may hold certain personal information about the Participant, including, but not limited to, the Participant’s name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in the Company, details of all RSUs or any other entitlement to shares awarded, canceled, vested, unvested or outstanding in the Participant’s favor, for the purpose of implementing, administering and managing the Plan (“Data”).

The Participant understands that Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in the Participant’s country, or elsewhere, and that the recipient’s country may have different data privacy laws and protections than the Participant’s country. The Participant understands that the Participant may request a list with the names and addresses of any potential recipients of the Data by contacting his or her local human resources representative. The Participant authorizes the recipients to receive, possess, use, retain and

 

Page 6 of 15


2011 Stock Incentive Plan (As Amended) RSU Award Agreement for International Participants

 

transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing his or her participation in the Plan, including any requisite transfer of such Data as may be required to a broker, escrow agent or other third party with whom the shares received upon vesting of the RSUs may be deposited. The Participant understands that Data will be held only as long as is necessary to implement, administer and manage his or her participation in the Plan. The Participant understands that he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing his or her local human resources representative. The Participant understands, however, that refusal or withdrawal of consent may affect his or her ability to participate in the Plan. For more information on the consequences of his or her refusal to consent or withdrawal of consent, the Participant understands that he or she may contact his or her local human resources representative.

15. Amendment of Agreement . This Agreement may be amended only by a writing which specifically states that it amends this Agreement. Notwithstanding the foregoing, this Agreement may be amended unilaterally by the Committee by a writing which specifically states that it is amending this Agreement, so long as a copy of such amendment is delivered to the Participant, and provided that no such amendment adversely affects the rights of the Participant. Limiting the foregoing, the Committee reserves the right to change, by written notice to the Participant, the provisions of the RSUs or this Agreement in any way it may deem necessary or advisable to carry out the purpose of the grant as a result of any change in applicable laws or regulations or any future law, regulation, ruling, or judicial decision, or, to the extent permissible under the Plan (including, but not limited to, Sections 10, 11 and 13 of the Plan).

16. Notices . Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of its Administrator. Any notice to be given to the Participant shall be addressed to the Participant at the address listed in the Employer’s records. By a notice given pursuant to this Section, either party may designate a different address for notices. Any notice shall have been deemed given when actually delivered.

17. Severability . The provisions of this Agreement are severable and if all or any part of this Agreement or the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity shall not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid. Any Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid shall, if possible, be construed in a manner which will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful and valid.

18. Construction . The RSUs are being issued pursuant to the Plan and are subject to the terms of the Plan. A copy of the Plan is available upon request during normal business hours at the principal executive offices of the Company. To the extent that any provision of this Agreement violates or is inconsistent with a provision of the Plan, the Plan provision shall govern and any inconsistent provision in this Agreement shall be of no force or effect.

19. Electronic Delivery . The Company may, in its sole discretion, decide to deliver any documents related to the RSUs granted under the Plan and participation in the Plan or future

 

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2011 Stock Incentive Plan (As Amended) RSU Award Agreement for International Participants

 

RSUs that may be granted under the Plan by electronic means or to request the Participant’s consent to participate in the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery and, if requested, to agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.

20. Entire Agreement . The Plan is incorporated herein by reference. The Plan and this Agreement constitute the entire agreement of the Company and the Participant with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Participant with respect to the subject matter hereof.

21. Language . If the Participant has received this Agreement or any other document related to the Plan translated into a language other than English and if the translated version is different than the English version, the English version will control.

22. Miscellaneous .

(a) The Company has established the Plan voluntarily, it is discretionary in nature and the Board may terminate, amend, or modify the Plan at any time; provided, however, that no such termination, amendment, or modification of the Plan may in any way adversely affect the Participant’s rights under this Agreement, without the Participant’s written approval unless such termination, amendment, or modification of the Plan is necessary in order to comply with any change in applicable laws or regulations or any future law, regulation, ruling, or judicial decision or as otherwise permissible under the Plan (including, but not limited, to Sections 10, 11 and 13 of the Plan).

(b) All obligations of the Company under the Plan and this Agreement in a Change of Control shall be governed by the Plan, other than as set forth in Section 2(b) above.

(c) To the extent not preempted by United States federal law, this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to its principles of conflict of laws.

23. Country Specific Terms . Appendix A contains additional terms and conditions of the Agreement applicable to Participants residing in those countries. In addition, Appendix A also contains information and notices of exchange control and certain other issues of which the Participant should be aware.

24. Acceptance of Terms and Conditions . By accepting the terms and conditions of this Agreement, the Participant agrees to abide by all of the governing terms and provisions of the Plan and this Agreement. Additionally, the Participant acknowledges having read and understood the terms and conditions of the Plan and this Agreement and has had an opportunity to obtain the advice of counsel prior to accepting this Agreement. The Participant must acknowledge his or her agreement to abide by the terms and conditions of the Plan and Agreement by executing this Agreement electronically or, if otherwise instructed by the Company, by printing and signing a paper copy of this Agreement and returning it to the appropriate Company representative. In addition, the transfer or sale of the shares

 

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2011 Stock Incentive Plan (As Amended) RSU Award Agreement for International Participants

 

obtained at vesting by the Participant shall be considered an additional acknowledgment of the terms and conditions contained in the Plan and Agreement.

*    *    *    *    *

 

PARTICIPANT SIGNATURE
PRINTED NAME
DATE

 

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2011 Stock Incentive Plan (As Amended) RSU Award Agreement for International Participants

 

APPENDIX A

TERMS AND CONDITIONS

This Appendix A, which is part of the Agreement, contains additional terms and conditions of the Agreement that will apply to the Participant if he or she resides in one of the countries listed below. Capitalized terms used but not defined herein shall have the same meanings assigned to them in the Plan and/or the Agreement.

NOTIFICATIONS

This Appendix A also includes information regarding exchange control and certain other issues of which the Participant should be aware with respect to his or her participation in the Plan. The information is based on the securities, exchange control and other laws in effect in the respective countries as of November 2013. Such laws are often complex and change frequently. The Company therefore strongly recommends that the Participant not rely on the information as the only source of information relating to the consequences of his or her participation in the Plan because such information may be outdated when the Participant vests in the RSUs and/or sells any Shares acquired pursuant to the RSUs.

AUSTRIA

Exchange Control Information . If the Participant holds Shares acquired under the Plan outside of Austria, the Participant must submit a report to the Austrian National Bank. An exemption applies if the value of the Shares as of any given quarter does not exceed €30,000,000 or as of December 31 does not exceed €5,000,000. If the former threshold is exceeded, quarterly obligations are imposed; whereas, if the latter threshold is exceeded, annual reports must be provided. The annual reporting date is December 31 and the deadline for filing the annual report is March 31 of the following year.

When the Participant sells Shares acquired under the Plan, there may be exchange control obligations if the cash proceeds are held outside of Austria. If the transaction volume of all accounts abroad exceeds €3,000,000 the movements and balances of all accounts must be reported monthly, as of the last day of the month, on or before the fifteenth day of the following month.

BELGIUM

Tax Reporting Information. You are required to report any bank accounts opened and maintained outside Belgium on your annual tax return.

 

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2011 Stock Incentive Plan (As Amended) RSU Award Agreement for International Participants

 

CHINA (PRC)

Exchange Control Restrictions. The Participant agrees to comply with any requirements that may be imposed by the Company in the future in order to facilitate compliance with exchange control requirements in China. These requirements may include, but are not limited to, immediate repatriation to China of the sale proceeds, an immediate sale of the RSUs at vesting, and/or repatriation of the cash proceeds through a special exchange control account.

FRANCE

Exchange Control Information.  If the Participant imports or exports cash ( e.g. , sales proceeds received under the Plan) with a value equal to or exceeding €7,600 and does not use a financial institution to do so, he or she must submit a report to the customs and excise authorities. If the Participant maintains a foreign bank account, he or she is required to report such account to the French tax authorities when filing his or her annual tax return.

GERMANY

Exchange Control Information.  Cross-border payments in excess of €12,500 must be reported monthly to the German Federal Bank. If the Participant uses a German bank to transfer a cross-border payment in excess of €12,500 under the Plan, the bank will make the report for the Participant.

IRELAND

Director Notification Requirement . If the Participant is a director, shadow director or secretary of an Irish Subsidiary or Related Entity of the Company, pursuant to Section 53 of the Irish Company Act 1990, he or she must notify the Irish Subsidiary or Related Entity of the Company in writing within five (5) business days of receiving or disposing of an interest in the Company ( e.g. , RSUs, Shares, etc.), or within five (5) business days of becoming aware of the event giving rise to the notification requirement, or within five (5) days of becoming a director, shadow director or secretary if such an interest exists at that time. This notification requirement also applies with respect to the interests of a spouse or minor child, whose interests will be attributed to the director, shadow director or secretary.

ISRAEL

No additional provisions apply.

 

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2011 Stock Incentive Plan (As Amended) RSU Award Agreement for International Participants

 

ITALY

Plan Document Acknowledgment. By accepting the terms and conditions of the RSUs, the Participant acknowledges that he or she has received a copy of the Plan and the Agreement and has reviewed the Plan and the Agreement, including this Appendix A, in their entirety and fully understands and accepts all provisions of the Plan and the Agreement.

Data Privacy. In addition to the data privacy provision that is set forth in the Agreement, the Participant also consents to the following additional data privacy-related terms:

I am aware that providing the Company and my Employer with Data is necessary for participation in the Plan and that my refusal to provide such Data may affect my ability to participate in the Plan. The Controller of personal data processing is the Company with registered offices at 4650 Cushing Parkway, Fremont, California, 94538, United States and, pursuant to D.lgs 196/2003, its representatives in Italy are Lam Research S.r.l., with registered offices in Centro Direzionale Colleoni, Palazzo Sirio 3-Ing, 20041 Agrate Brianza-MI, Italy.

I understand that I may at any time exercise the rights acknowledged by Section 7 of Legislative Decree June 30, 2003 n.196, including, but not limited to, the right to access, delete, update, request the rectification of my Data and cease, for legitimate reasons, the data processing. Furthermore, I am aware that my Data will not be used for direct marketing purposes.

Exchange Control Information. Participant is responsible for all reporting requirements regarding (i) any transfers of cash or shares to or from Italy and (ii) any foreign investments or investments (including proceeds from the sale of Shares) held outside of Italy.

JAPAN

Exchange Control Information. If the Participant acquired Shares valued at more than ¥100,000,000 in a single transaction, the Participant must file a Securities Acquisition Report with the Ministry of Finance through the Bank of Japan within 20 days of the purchase of Shares.

KOREA

Exchange Control Information. If the Participant receives US$500,000 or more from the sale of Shares, Korean exchange control laws require the Participant to repatriate the proceeds to Korea within 18 months of the sale.

MALAYSIA

Director Notification Requirement . If the Participant is a Director of the local Subsidiary, he or she must notify the local Subsidiary of the grant and also provide notice of any change in his or her interest in the RSUs ( e.g. vesting or the sale of Shares).

Exchange Control Information. Because exchange control regulations change frequently and without notice, you should consult your legal advisor before selling shares to ensure compliance with current regulations. It is Participant’s responsibility to comply with exchange control laws in Malaysia, and neither the Company nor your employer will be liable for any fines or penalties

 

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2011 Stock Incentive Plan (As Amended) RSU Award Agreement for International Participants

 

resulting from a failure to comply with applicable laws. For purposes of compiling balance of payment statistics on the inflow and outflow of funds from Malaysia, the Bank Negara Malaysia must be notified of any remittance of funds between residents and non-residents of an amount equal to RM200,001 or greater from Malaysia.

NETHERLANDS

Insider-Trading Notification. The Participant should be aware of the Dutch insider-trading rules, which may impact the sale of Shares acquired at vesting of the RSUs. In particular, the Participant may be prohibited from effectuating certain transactions involving Shares if the Participant has inside information about the Company. If the Participant is uncertain whether the insider-trading rules apply to him or her, the Participant should consult his or her personal legal advisor. By accepting the Agreement and participating in the Plan, the Participant acknowledges having read and understood this notification and acknowledges that it is the Participant’s responsibility to comply with the following Dutch insider-trading rules.

SINGAPORE

Director Notification Obligation. If the Participant is a director, associate director or shadow director of a Singaporean Subsidiary or Related Entity of the company, the Participant is subject to certain notification requirements under the Singapore Companies Act. Among these requirements is an obligation to notify the Singaporean Subsidiary or Related Entity of the Company in writing when the Participant receives an interest ( e.g. , RSUs or Shares) in the Company or any Subsidiary or Related Entity of the Company. In addition, the Participant must notify the Singaporean Subsidiary or Related Entity of the Company when the Participant sells Shares or shares of any Subsidiary or Related Entity of the Company (including when the Participant sells Shares acquired at vesting of the RSUs). These notifications must be made within two (2) days of acquiring or disposing of any interest in the Company or any Subsidiary or Related Entity of the Company. In addition, a notification of the Participant’s interests in the Company or any Subsidiary or Related Entity of the Company must be made within two (2) days of becoming a director.

Tax Information . The Participant may be eligible for certain tax favored schemes applicable to RSUs. The participant should consult with his or her tax advisor to determine if these tax favorable schemes apply to his or her situation.

SLOVAKIA

Exchange Control Information . It is the Participant’s obligation to comply with exchange control requirements in the Slovakia Republic, including any notification requirements applicable to opening or maintaining any foreign bank or brokerage accounts.

SLOVENIA

No additional provisions apply.

 

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2011 Stock Incentive Plan (As Amended) RSU Award Agreement for International Participants

 

SWITZERLAND

Securities Law Information. The offer of the RSUs is considered a private offering in Switzerland and is therefore not subject to securities registration in Switzerland.

TAIWAN

Exchange Control Information. The Participant may acquire and remit foreign currency (including funds for the purchase of Shares and proceeds from the sale of Shares) up to US$5,000,000 per year without prior approval.

If the transaction amount is TWD500,000 or more in a single transaction, the Participant must submit a Foreign Exchange Transaction Form. If the transaction amount is US$500,000 or more in a single transaction, the Participant must also provide supporting documentation to the satisfaction of the remitting bank.

UNITED KINGDOM

Securities Requirement. Due to legal requirements, all RSUs at the time of vesting will be settled in Shares.

 

Page 14 of 15


LAM RESEARCH CORPORATION (Novellus Systems, Inc.)

2011 Stock Incentive Plan (As Amended)

Restricted Stock Unit Award Agreement

EXHIBIT A

 

Participant (Name & Employee Number):
Grant Date:

Number of RSUs :

 

Vesting Date(s):  

[Insert Number] RSUs on [Insert Date]

 

[Insert Number] RSUs on [Insert Date]

 

[Insert Number] RSUs on [Insert Date]

Leave of Absence: 31 st day (or 91 st day if reemployment guaranteed by statute or contract)

 

Page 15 of 15

Exhibit 10.9

LAM RESEARCH CORPORATION (Novellus Systems, Inc.)

2011 Stock Incentive Plan (As Amended)

Nonstatutory Stock Option Award Agreement

(U.S. Participants)

Pursuant to the terms of the 2011 Stock Incentive Plan (As Amended) (the “Plan”) Lam Research Corporation, a Delaware corporation (the “Company”), hereby grants Options to the Optionee on the terms and conditions as set forth in this Nonstatutory Stock Option Award Agreement (including the attached Exhibit A) (the “Agreement”) and the Plan. Capitalized terms used but not defined in this Agreement shall have the meaning specified in the Plan. The Options are granted on the Grant Date. This Agreement is effective as of the Grant Date.

NOW, THEREFORE , it is hereby agreed as follows:

1. Award of Options . Subject to the terms and conditions of this Agreement and the Plan (the terms of which are incorporated herein by reference) and effective as of the Grant Date, the Company hereby grants to the Optionee a Number of Options to purchase Shares at the designated Exercise Price for each Share granted under these Options. The total Number of Options and the Exercise Price are set forth in Exhibit A.

2. Nature of the Options . These Options are intended by the Company and the Optionee to be nonstatutory stock options, and do not qualify for any special tax benefits to the Optionee. These Options are not Incentive Stock Options.

3. Vesting/Exercise of Options .

(a) Subject to the terms and conditions of this Agreement and provided that the Optionee continues to provide Service (as defined in Section 6 below) to the Company (or any Related Entity) through the applicable Vesting Date(s) as set forth in Exhibit A, these Options shall vest and become exercisable during their term as follows:

 

  (i) These Options will vest and become exercisable pursuant to the Vesting Date(s) set forth in Exhibit A.

 

  (ii) These Options may not be exercised for a fraction of a Share.

 

  (iii) In the event of Optionee’s death, Disability or other termination of Service, the vesting and exercisability of the Shares is governed by Sections 3(d), 6, 7 and 8 below and, where applicable, Exhibit A. Notwithstanding anything to the contrary, if the Optionee has an Employment or Change in Control agreement with the Company that provides for more favorable exercise periods under the circumstances set forth in Sections 3(d), 6, 7 and 8 below, such provisions shall apply.

 

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2011 Stock Incentive Plan (As Amended) Option Award Agreement for U.S. Optionees

 

(b) These Options are exercisable by delivery of an exercise notice or in such other form as permitted generally by the Company and designated by the Company (the “Exercise Notice”), which shall state the election to exercise the Options, the number of Options being exercised (the “Exercised Shares”), and such other representations and agreements as may be required by the Company pursuant to the provisions of the Plan. The Exercise Notice shall be completed by the Optionee and delivered to the Administrator of the Company. The Exercise Notice shall be accompanied by payment of the aggregate Exercise Price as to all Exercised Shares. These Options shall be deemed to be exercised upon receipt by the Company of such fully executed Exercise Notice accompanied by such aggregate Exercise Price.

(c) These Options may not be exercised after the Expiration Date as set forth in Exhibit A and may be exercised during such term only in accordance with the Plan and the terms of this Agreement.

(d) In the event of a Change of Control of the Company, the Options are governed by Section 11 of the Plan (subject to the terms of any applicable Employment or Change in Control Agreement).

4. Method of Payment . Unless otherwise determined by the Administrator in accordance with Section 7 or otherwise of the Plan, payment of the exercise price shall be made by cash, cash equivalent, through a cashless exercise program, or pursuant to a net exercise program (which may be required by the Administrator).

5. Restrictions on Exercise . These Options may not be exercised if the issuance of Shares upon exercise or the method of payment of consideration for such Shares would constitute a violation of any applicable federal or state securities or other law or regulation, or the requirement of any stock exchange on which the Company’s shares may be listed for trading at the time of issuance. The inability of the Company to obtain approval from any regulatory body having authority deemed by the Company to be necessary to the lawful issuance of any Company Shares hereby shall relieve the Company of any liability with respect to the non-issuance of the Company Shares as to which such approval shall not have been obtained. The Company, however, shall use its reasonable efforts to obtain all such approvals.

6. Termination of Service and Leave of Absence .

(a) For purposes of this Agreement, Continuous Service shall mean the performance of services for the Company (or any Related Entity) in the capacity of an Employee or Director and shall be considered terminated on the on the later of the last day the Optionee is on payroll or the last day of Continuous Service as a director for a Director (“Service”).

(b) If Optionee’s Service terminates for any reason (whether voluntary or involuntary, with or without cause) other than as a result of Disability or death, Optionee may, but only within the number of days as set forth in Exhibit A after the date such Service terminates and in no event beyond the Expiration Date, exercise these Options to the extent that the Options had vested and Optionee was entitled to exercise the Options at the date such Service terminated; provided that if such termination is not for cause and at the date of such termination the Optionee satisfies the definition of Retirement, as set forth in Exhibit A, the post termination

 

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2011 Stock Incentive Plan (As Amended) Option Award Agreement for U.S. Optionees

 

exercise period shall be extended for an additional period as set forth in Exhibit A and in no event beyond the Expiration Date (such extended period being called the “Retirement Extended Exercise Period”). Notwithstanding anything above to the contrary, if at any time during the Retirement Extended Exercise Period, the Optionee directly or indirectly, either as an employee, employer, consultant, agent, principal, partner, shareholder (other than of a mutual fund owning an interest in a company that engages or assists any third party in engaging in any business competitive with the Company (or any Related Entity)), corporate officer, director or in any other capacity, engages or assists any third party in engaging in any business competitive with the Company (or any Related Entity); then all outstanding unvested Options shall immediately terminate and all outstanding vested unexercised Options shall immediately terminate. To the extent that certain Options had not vested or Optionee was not entitled to exercise these Options at the date such Service ceased, or if Optionee does not exercise these Options within the time specified herein, the Options shall be cancelled by the Company.

(c) Vesting of the Options will be suspended and vesting credit will no longer accrue as of the designated day of the leave of absence as set forth in Exhibit A, unless otherwise determined by the Administrator or required by contract or statute. If the Optionee returns to Service immediately after the end of an approved leave of absence, vesting credit shall continue to accrue from that date of continued Service.

7. Disability of Optionee . If the Optionee’s Service terminates as a result of a Disability, a portion of the Options granted to the Optionee shall vest and be exercisable on the date the Disability is incurred. To determine the applicable number of Options, the Number of Options (as set forth in Exhibit A) shall be multiplied by the greater of (x) 50% or (y) the percentage of full months worked from the Grant Date until the date the Disability is incurred (the “Disability Vesting Date”) over the total number of full months from the Grant Date until the last Vesting Date (as set forth in Exhibit A). Any remaining unvested portion of the Options shall be cancelled. If Optionee’s Service terminates as a result of a Disability, Optionee may, but only within the period as set forth in Exhibit A from the date of termination of Service, exercise the Options to the extent Optionee was entitled to exercise them at the date of such termination of Service and in no event beyond the Expiration Date. To the extent that the Shares had not vested or Optionee was not entitled to exercise the Options at the date of termination of Service, or if Optionee does not exercise these Options within the time specified herein, the Options shall be cancelled by the Company.

8. Death of Optionee . In the event of termination of the Optionee’s Service due to death, a portion of the Options granted to the Optionee shall vest on the date of death. To determine the applicable number of Options, the Number of Options (as set forth in Exhibit A) shall be multiplied by the greater of (x) 50% or (y) the percentage of full months worked from the Grant Date until the date of death (the “Death Vesting Date”, and collectively, with the Vesting Date(s) set forth in Exhibit A, and the “Disability Vesting Date”, the “Vesting Date”) over the total number of full months from the Grant Date until the last Vesting Date (as set forth in Exhibit A). Any remaining portion of the Options that had not vested or that the Optionee was not entitled to exercise at the date of termination of Service shall be cancelled. In the event of termination of the Optionee’s Service due to death, the Options may be exercised at any time within the period as set forth in Exhibit A following the date of death by the personal representative of the Optionee’s estate or by a person to whom the Options were transferred

 

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2011 Stock Incentive Plan (As Amended) Option Award Agreement for U.S. Optionees

 

pursuant to the Optionee’s will or in accordance with the laws of descent and distribution, but only to the extent the Options had vested and were exercisable as of the date of Optionee’s death and in no event beyond the Expiration Date.

9. Restriction on Transferability . Prior to exercise and delivery of the Shares, neither the Options, nor the Shares or any beneficial interest therein, may be sold, transferred, pledged, assigned, or otherwise alienated at any time. Any attempt to do so contrary to the provisions hereof shall be null and void. Notwithstanding the above, distribution can be made pursuant to will, the laws of descent and distribution, and if provided by the Administrator, intra-family transfer instruments, or to an inter vivos trust, or as otherwise provided by the Administrator. The terms of this Agreement shall be binding upon the executives, administrators, heirs, successors and assigns of the Optionee.

10. Tax Requirements . Regardless of any action the Company or the Optionee’s employer (the “Employer”) takes with respect to any or all income tax, social insurance, payroll tax, or other tax-related items related to the Optionee’s participation in the Plan and legally applicable to the Optionee (“Tax-Related Items”), the Optionee acknowledges that the ultimate liability for all Tax-Related Items is and remains the Optionee’s responsibility and may exceed the amount actually withheld by the Company or the Employer. The Optionee further acknowledges that the Company and/or the Employer (1) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Options, including, but not limited to, the grant, vesting, exercise/settlement of the Options, the issuance of Shares upon settlement of the Options, the subsequent sale of Shares acquired pursuant to such issuance and the receipt of any dividends and/or any dividend equivalents; and (2) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the Options to reduce or eliminate the Optionee’s liability for Tax-Related Items or achieve any particular tax result.

Prior to any relevant taxable or tax withholding event, the Optionee will pay or make adequate arrangements satisfactory to the Company (in the Company’s sole discretion) to satisfy all withholding obligations. In this regard, in those cases where no such prior arrangement has been made (or where the amount of money provided is insufficient to satisfy the applicable obligations) the Optionee authorizes the Company and/or the Employer, in their discretion, to satisfy the obligations with regard to all Tax-Related Items by one or a combination of the following: (i) withholding from the Optionee’s wages or other cash compensation paid to the Optionee; (ii) withholding from proceeds of the sale of Shares acquired upon exercise of the Options through a sale arranged by the Company (on the Optionee’s behalf pursuant to this authorization); or (iii) withholding in Shares to be issued upon exercise of the Options.

If the Optionee’s obligation is satisfied as described in (ii) of this Section, the Company will endeavor to only sell only the number of Shares required to satisfy the Optionee’s obligations for Tax-Related Items; however the Optionee agrees that the Company may sell more Shares than necessary to cover the Tax-Related Item, and that in such event, the Company will reimburse the Optionee for the excess amount withheld, in cash and without interest. If the Optionee’s obligations are satisfied as described in (iii) of this Section, the Company shall withhold a number of Shares otherwise deliverable at exercise having a Fair Market Value sufficient to satisfy the statutory minimum (or such higher amount as is acceptable without

 

Page 4 of 10


2011 Stock Incentive Plan (As Amended) Option Award Agreement for U.S. Optionees

 

adverse accounting consequences) of the Optionee’s estimated tax obligations. The Optionee is deemed to have been issued the full number of Shares subject to the exercise, notwithstanding that a number of the Shares are held back solely for the purpose of paying the Tax-Related Items due as a result of any aspect of the Optionee’s participation in the Plan.

The Optionee shall pay to the Employer any amount of Tax-Related Items that the Employer may be required to withhold as a result of the Optionee’s participation in the Plan that cannot be satisfied by the means previously described. The Company may refuse to issue or deliver the Shares or the proceeds of the sale of Shares, if the Optionee fails to comply with the Optionee’s obligations in connection with the Tax-Related Items.

Further, in consideration of the grant of the Options, no claim or entitlement to compensation or damages arises if, in satisfying the Optionee’s (and/or the Employer’s) obligation for Tax-Related Items, the Company and/or the Employer withholds an amount in excess of the amount legally required to be withheld, the Optionee irrevocably releases the Company and the Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Agreement, the Optionee shall be deemed irrevocably to have waived his or her entitlement to pursue such claim or damages.

11. No Employment Rights . The award of the Options pursuant to this Agreement shall not give the Optionee any right to continued service with the Company or a Related Entity and shall not interfere with the ability of the Employee to terminate the Optionee’s Service with the Company at any time with or without cause.

12. Severability . The provisions of this Agreement are severable and if all or any part of this Agreement or the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity shall not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid. Any Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid shall, if possible, be construed in a manner which will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful and valid.

13. Rights as Stockholder . The Optionee shall not have voting, dividend or any other rights as a stockholder of the Company with respect to the Options. Upon exercise of the Optionee’s Options into Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), the Optionee will obtain full voting, dividend and other rights as a stockholder of the Company.

14. Administration . The Administrator shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation, and application of the Plan as are consistent therewith and to interpret or revoke any such rules. All actions taken and all interpretations and determinations made by the Administrator shall be final and binding upon the Optionee, the Company, and all other interested persons. No Administrator shall be personally liable for any action, determination, or interpretation made in good faith with respect to the Plan or this Agreement.

 

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2011 Stock Incentive Plan (As Amended) Option Award Agreement for U.S. Optionees

 

15. Effect on Other Employee Benefit Plans . The value of the Options granted pursuant to this Agreement shall not be included as compensation, earnings, salaries, or other similar terms used when calculating the Optionees’s benefits under any employee benefit plan sponsored by the Company or any Related Entity, except as such plan otherwise expressly provides. The Company expressly reserves its rights to amend, modify, or terminate any of the Company’s or any Related Entity’s employee benefit plans.

16. Nature of the Grant . In accepting the Options, the Optionee acknowledges that:

(a) the Plan is established voluntarily by the Company, it is discretionary in nature and may be modified, amended, suspended or terminated by the Company at any time, unless otherwise provided in the Plan and this Agreement;

(b) the grant of the Options is voluntary and occasional and does not create any contractual or other right to receive future awards of options, or benefits in lieu of options even if options have been awarded repeatedly in the past;

(c) all decisions with respect to future grants of options, if any, will be at the sole discretion of the Company;

(d) the Optionee’s participation in the Plan is voluntary;

(e) the Options do not constitute compensation of any kind for services rendered to the Company or to the Employer, and the Options are outside the scope of the Optionee’s employment contract, if any;

(f) the Options are not part of normal or expected compensation or salary for any purpose, including, but not limited to, calculation of any overtime, severance, resignation, termination, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments and in no event should be considered as compensation for, or relating in any way to, past services for the Company or the Employer;

(g) in the event that the Optionee is not an Employee, the grant of the Options will not be interpreted to form an employment contract or relationship with the Company; and furthermore, the grant of the Options will not be interpreted to form an employment contract with the Employer or any Related Entity;

(h) the future value of the underlying Shares is unknown and cannot be predicted with certainty;

(i) if the Optionee receives Shares upon exercise of the Options, the value of such Shares may increase or decrease in value;

(j) in consideration of the grant of the Options, no claim or entitlement to compensation or damages arises from termination of the Options or diminution in value of the Options or Shares received upon vesting of the Options resulting from termination of the Optionee’s Service to the Company or the Employer (for any reason whatsoever and whether or not in breach of local labor laws) and the Optionee irrevocably releases the Company and the

 

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2011 Stock Incentive Plan (As Amended) Option Award Agreement for U.S. Optionees

 

Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Agreement, the Optionee shall be deemed irrevocably to have waived his or her entitlement to pursue such claim.

17. Data Privacy Notice and Consent . The Optionee hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of his or her personal data as described in this Agreement by and among, as applicable, the Employer, the Company and Related Entities for the exclusive purpose of implementing, administering and managing the Optionee’s participation in the Plan.

The Optionee understands that the Company and the Employer may hold certain personal information about the Optionee, including, but not limited to, the Optionee’s name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any Shares or directorships held in the Company, details of all options or any other entitlement to Shares awarded, canceled, vested, unvested or outstanding in the Optionee’s favor, for the purpose of implementing, administering and managing the Plan (“Data”).

The Optionee understands that Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in the Optionee’s country, or elsewhere, and that the recipient’s country may have different data privacy laws and protections than the Optionee’s country. The Optionee understands that the Optionee may request a list with the names and addresses of any potential recipients of the Data by contacting his or her local human resources representative. The Optionee authorizes the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing his or her participation in the Plan, including any requisite transfer of such Data as may be required to a broker, escrow agent or other third party with whom the Shares received upon exercise of the Options may be deposited. The Optionee understands that Data will be held only as long as is necessary to implement, administer and manage his or her participation in the Plan. The Optionee understands that he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing his or her local human resources representative. The Optionee understands, however, that refusal or withdrawal of consent may affect his or her ability to participate in the Plan. For more information on the consequences of his or her refusal to consent or withdrawal of consent, the Optionee understands that he or she may contact his or her local human resources representative.

18. Amendment of Agreement . This Agreement may be amended only by a writing which specifically states that it amends this Agreement. Notwithstanding the foregoing, this Agreement may be amended unilaterally by the Committee by a writing which specifically states that it is amending this Agreement, so long as a copy of such amendment is delivered to the Optionee, and provided that no such amendment adversely affects the rights of the Optionee. Limiting the foregoing, the Committee reserves the right to change, by written notice to the Optionee, the provisions of the Options or this Agreement in any way it may deem necessary or

 

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2011 Stock Incentive Plan (As Amended) Option Award Agreement for U.S. Optionees

 

advisable to carry out the purpose of the grant as a result of any change in applicable laws or regulations or any future law, regulation, ruling, or judicial decision, or, to the extent permissible under the Plan (including, but not limited to, Sections 10, 11 and 13 of the Plan).

19. Notices . Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of its Stock Administrator. Any notice to be given to the Optionee shall be addressed to the Optionee at the address listed in the Employer’s records. By a notice given pursuant to this Section, either party may designate a different address for notices. Any notice shall have been deemed given when actually delivered.

20. Construction . The Options are being issued pursuant to the Plan and are subject to the terms of the Plan. A copy of the Plan is available upon request during normal business hours at the principal executive offices of the Company. To the extent that any provision of this Agreement violates or is inconsistent with a provision of the Plan, the Plan provision shall govern and any inconsistent provision in this Agreement shall be of no force or effect.

21. Entire Agreement . The Plan is incorporated herein by reference. The Plan and this Agreement constitute the entire agreement of the Company and the Optionee with respect to the subject matter hereof and, unless indicated otherwise herein, supersede in their entirety all prior undertakings and agreements of the Company and the Optionee with respect to the subject matter hereof.

22. Language . If the Optionee has received this Agreement or any other document related to the Plan translated into a language other than English and if the translated version is different than the English version, the English version will control.

23. Electronic Delivery . The Company may, in its sole discretion, decide to deliver any documents related to the Options granted under the Plan and participation in the Plan or future options that may be granted under the Plan by electronic means or to request the Optionee’s consent to participate in the Plan by electronic means. The Optionee hereby consents to receive such documents by electronic delivery and, if requested, to agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.

24. Miscellaneous .

(a) The Company has established the Plan voluntarily, it is discretionary in nature and the Board may terminate, amend, or modify the Plan at any time; provided, however, that no such termination, amendment, or modification of the Plan may in any way adversely affect the Optionee’s rights under this Agreement, without the Optionee’s written approval unless such termination, amendment, or modification of the Plan is necessary in order to comply with any change in applicable laws or regulations or any future law, regulation, ruling, or judicial decision or as otherwise permissible under the Plan (including, but not limited to, Sections 10, 11 and 13 of the Plan).

(b) All obligations of the Company under the Plan and this Agreement in a Change of Control shall be governed by the Plan, other than as set forth in Section 3(a)(iii) above.

 

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2011 Stock Incentive Plan (As Amended) Option Award Agreement for U.S. Optionees

 

(c) To the extent not preempted by federal law, this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to its principles of conflict of laws.

25. Acceptance of Terms and Conditions . By accepting the terms and conditions applicable to the Options, the Optionee agrees to abide by all of the governing terms and provisions of the Plan and this Agreement. Additionally, the Optionee acknowledges having read and understood the terms and conditions of the Plan and this Agreement and has had an opportunity to obtain the advice of counsel prior to accepting this Agreement. The Optionee must accept his or her agreement to abide by the terms and conditions of the Plan and Agreement by executing this Agreement electronically or, if otherwise instructed by the Company, by printing and signing a paper copy of this Agreement and returning it to the appropriate Company representative. In addition, the exercise of these Options shall be considered an additional acknowledgment of the terms and conditions contained in the Plan and Agreement.

*    *    *    *    *

 

OPTIONEE SIGNATURE   
PRINTED NAME   
DATE   

 

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LAM RESEARCH CORPORATION (Novellus Systems, Inc.)

2011 Stock Incentive Plan (As Amended)

Nonstatutory Stock Option Award Agreement

EXHIBIT A

Optionee (Name & Employee Number):

Grant Date:

Number of Options:

Exercise Price:

 

Vesting Date(s):  

[Insert Number] Options on [Insert Date]

 

[Insert Number] Options on [Insert Date]

 

[Insert Number] Options on [Insert Date]

Expiration Date: 7 years from the Grant Date

Leave of Absence: 31 st day (or 91 st day if reemployment guaranteed by statute or contract)

Termination of Service Provisions:

Any Reason (except death, Disability and Retirement): 90 days

Death: 12 months

Disability: 12 months

Retirement Extended Exercise Period: 90 days plus an additional 21 months

Retirement: At least 55 years old and has completed at least 5 years of Service

 

Page 10 of 10

Exhibit 10.11

LAM RESEARCH CORPORATION (Novellus Systems, Inc.)

2011 Stock Incentive Plan (As Amended)

Nonstatutory Stock Option Award Agreement

(International Participants)

Pursuant to the terms of the 2011 Stock Incentive Plan (As Amended) (the “Plan”) Lam Research Corporation, a Delaware corporation (the “Company”), hereby grants Options to the Optionee on the terms and conditions as set forth in this Nonstatutory Stock Option Award Agreement (including the attached Exhibit A) (the “Agreement”) and the Plan. Capitalized terms used but not defined in this Agreement shall have the meaning specified in the Plan. The Options are granted on the Grant Date. This Agreement is effective as of the Grant Date.

NOW, THEREFORE , it is hereby agreed as follows:

1. Award of Options . Subject to the terms and conditions of this Agreement and the Plan (the terms of which are incorporated herein by reference) and effective as of the Grant Date, the Company hereby grants to the Optionee a Number of Options to purchase Shares at the designated Exercise Price for each Share granted under these Options. The total Number of Options and the Exercise Price are set forth in Exhibit A.

2. Nature of the Options . These Options are intended by the Company and the Optionee to be nonstatutory stock options, and do not qualify for any special tax benefits to the Optionee. These Options are not Incentive Stock Options.

3. Vesting/Exercise of Options .

(a) Subject to the terms and conditions of this Agreement and provided that the Optionee continues to provide Service (as defined in Section 6 below) to the Company (or any Related Entity) through the applicable Vesting Date(s) as set forth in Exhibit A, these Options shall vest and become exercisable during their term as follows:

 

  (i) These Options will vest and become exercisable pursuant to the Vesting Date(s) set forth in Exhibit A.

 

  (ii) These Options may not be exercised for a fraction of a Share.

 

  (iii) In the event of Optionee’s death, Disability or other termination of Service, the vesting and exercisability of the Shares is governed by Sections 3(d), 6, 7 and 8 below and, where applicable, Exhibit A. Notwithstanding anything to the contrary, if the Optionee has an Employment or Change in Control Agreement with the Company that provides for more favorable exercise periods under the circumstances set forth in Sections 3(d), 6, 7 and 8 below, such provisions shall apply.

 

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2011 Stock Incentive Plan (As Amended) Option Award Agreement for International Optionees

 

(b) These Options are exercisable by delivery of an exercise notice or in such other form as permitted generally by the Company and designated by the Company (the “Exercise Notice”), which shall state the election to exercise the Options, the number of Options being exercised (the “Exercised Shares”), and such other representations and agreements as may be required by the Company pursuant to the provisions of the Plan. The Exercise Notice shall be completed by the Optionee and delivered to the Administrator of the Company. The Exercise Notice shall be accompanied by payment of the aggregate Exercise Price as to all Exercised Shares. These Options shall be deemed to be exercised upon receipt by the Company of such fully executed Exercise Notice accompanied by such aggregate Exercise Price.

(c) These Options may not be exercised after the Expiration Date as set forth in Exhibit A and may be exercised during such term only in accordance with the Plan and the terms of this Agreement.

(d) In the event of a Change of Control of the Company, the Options are governed by Section 11 of the Plan (subject to the terms of any applicable Employment or Change in Control Agreement).

4. Method of Payment . Unless otherwise determined by the Administrator in accordance with Section 7 or otherwise of the Plan, payment of the exercise price shall be made by cash, cash equivalent, through a cashless exercise program, or pursuant to a net exercise program (which may be required by the Administrator).

5. Restrictions on Exercise . These Options may not be exercised if the issuance of Shares upon exercise or the method of payment of consideration for such Shares would constitute a violation of any applicable federal or state securities or other law or regulation, or the requirement of any stock exchange on which the Company’s shares may be listed for trading at the time of issuance. The inability of the Company to obtain approval from any regulatory body having authority deemed by the Company to be necessary to the lawful issuance of any Company Share hereby shall relieve the Company of any liability with respect to the non-issuance of the Company Share as to which such approval shall not have been obtained. The Company, however, shall use its reasonable efforts to obtain all such approvals.

6. Termination of Service and Leave of Absence .

(a) For purposes of this Agreement, Continuous Service shall mean the performance of services for the Company (or any Related Entity) in the capacity of an Employee or Director and shall be considered terminated on the later of the last day the Optionee is on payroll or the last day of Continuous Service as a director for a Director (“Service”).

(b) If Optionee’s Service terminates for any reason (whether voluntary or involuntary, with or without cause) other than as a result of Disability or death, Optionee may, but only within the number of days as set forth in Exhibit A after the date such Service terminates and in no event beyond the Expiration Date, exercise these Options to the extent that the Options had vested and Optionee was entitled to exercise the Options at the date such Service terminated; provided that if such termination is not for cause and at the date of such termination the Optionee satisfies the definition of Retirement, as set forth in Exhibit A, the post termination

 

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2011 Stock Incentive Plan (As Amended) Option Award Agreement for International Optionees

 

exercise period shall be extended for an additional period as set forth in Exhibit A and in no event beyond the Expiration Date (such extended period being called the “Retirement Extended Exercise Period”). Notwithstanding anything above to the contrary, if at any time during the Retirement Extended Exercise Period, the Optionee directly or indirectly, either as an employee, employer, consultant, agent, principal, partner, shareholder (other than of a mutual fund owning an interest in a company that engages or assists any third party in engaging in any business competitive with the Company (or any Related Entity)), corporate officer, director or in any other capacity, engages or assists any third party in engaging in any business competitive with the Company (or any Related Entity); then all outstanding unvested Options shall immediately terminate and all outstanding vested unexercised Options shall immediately terminate. To the extent that certain Options had not vested or Optionee was not entitled to exercise these Options at the date such Service ceased, or if Optionee does not exercise these Options within the time specified herein, the Options shall be cancelled by the Company.

(c) Vesting of the Options will be suspended and vesting credit will no longer accrue as of the designated day of the leave of absence as set forth in Exhibit A, unless otherwise determined by the Administrator or required by contract or statute. If the Optionee returns to Service immediately after the end of an approved leave of absence, vesting credit shall continue to accrue from that date of continued Service.

7. Disability of Optionee . If the Optionee’s Service terminates as a result of a Disability, a portion of the Options granted to the Optionee shall vest and be exercisable on the date the Disability is incurred. To determine the applicable number of Options, the Number of Options (as set forth in Exhibit A) shall be multiplied by the greater of (x) 50% or (y) the percentage of full months worked from the Grant Date until the date the Disability is incurred (the “Disability Vesting Date”) over the total number of full months from the Grant Date until the last Vesting Date (as set forth in Exhibit A). Any remaining unvested portion of the Options shall be cancelled. If Optionee’s Service terminates as a result of a Disability, Optionee may, but only within the period as set forth in Exhibit A from the date of termination of Service, exercise the Options to the extent Optionee was entitled to exercise them at the date of such termination of Service and in no event beyond the Expiration Date. To the extent that the Shares had not vested or Optionee was not entitled to exercise the Options at the date of termination of Service, or if Optionee does not exercise these Options within the time specified herein, the Options shall be cancelled by the Company.

8. Death of Optionee . In the event of termination of the Optionee’s Service due to death, a portion of the Options granted to the Optionee shall vest on the date of death. To determine the applicable number of Options, the Number of Options (as set forth in Exhibit A) shall be multiplied by the greater of (x) 50% or (y) the percentage of full months worked from the Grant Date until the date of death (the “Death Vesting Date”, and collectively, with the Vesting Date(s) set forth in Exhibit A, and the “Disability Vesting Date”, the “Vesting Date”) over the total number of full months from the Grant Date until the last Vesting Date (as set forth in Exhibit A). Any remaining portion of the Options that had not vested or that the Optionee was not entitled to exercise at the date of termination of Service shall be cancelled. In the event of termination of the Optionee’s Service due to death, the Options may be exercised at any time within the period as set forth in Exhibit A following the date of death by the personal representative of the Optionee’s estate or by a person to whom the Options were transferred

 

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2011 Stock Incentive Plan (As Amended) Option Award Agreement for International Optionees

 

pursuant to the Optionee’s will or in accordance with the laws of descent and distribution, but only to the extent the Options had vested and were exercisable as of the date of Optionee’s death and in no event beyond the Expiration Date.

9. Restriction on Transferability . Prior to exercise and delivery of the Shares, neither the Options, nor the Shares or any beneficial interest therein, may be sold, transferred, pledged, assigned, or otherwise alienated at any time. Any attempt to do so contrary to the provisions hereof shall be null and void. Notwithstanding the above, distribution can be made pursuant to will, the laws of descent and distribution, and if provided by the Administrator, intra-family transfer instruments, or to an inter vivos trust, or as otherwise provided by the Administrator. The terms of this Agreement shall be binding upon the executives, administrators, heirs, successors and assigns of the Optionee.

10. Tax Requirements . Regardless of any action the Company or the Optionee’s employer (the “Employer”) takes with respect to any or all income tax, social insurance, payroll tax, or other tax-related items related to the Optionee’s participation in the Plan and legally applicable to the Optionee (“Tax-Related Items”), the Optionee acknowledges that the ultimate liability for all Tax-Related Items is and remains the Optionee’s responsibility and may exceed the amount actually withheld by the Company or the Employer. The Optionee further acknowledges that the Company and/or the Employer (1) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Options, including, but not limited to, the grant, vesting, exercise/settlement of the Options, the issuance of Shares upon settlement of the Options, the subsequent sale of Shares acquired pursuant to such issuance and the receipt of any dividends and/or any dividend equivalents; and (2) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the Options to reduce or eliminate the Optionee’s liability for Tax-Related Items or achieve any particular tax result.

Prior to any relevant taxable or tax withholding event, the Optionee will pay or make adequate arrangements satisfactory to the Company (in the Company’s sole discretion) to satisfy all withholding obligations. In this regard, in those cases where no such prior arrangement has been made (or where the amount of money provided is insufficient to satisfy the applicable obligations) the Optionee authorizes the Company and/or the Employer, in their discretion, to satisfy the obligations with regard to all Tax-Related Items by one or a combination of the following: (i) withholding from the Optionee’s wages or other cash compensation paid to the Optionee; (ii) withholding from proceeds of the sale of Shares acquired upon exercise of the Options through a sale arranged by the Company (on the Optionee’s behalf pursuant to this authorization); or (iii) withholding in Shares to be issued upon exercise of the Options.

If the Optionee’s obligation is satisfied as described in (ii) of this Section, the Company will endeavor to only sell only the number of Shares required to satisfy the Optionee’s obligations for Tax-Related Items; however the Optionee agrees that the Company may sell more Shares than necessary to cover the Tax-Related Item, and that in such event, the Company will reimburse the Optionee for the excess amount withheld, in cash and without interest. If the Optionee’s obligations are satisfied as described in (iii) of this Section, the Company shall withhold a number of Shares otherwise deliverable at exercise having a Fair Market Value sufficient to satisfy the statutory minimum (or such higher amount as is acceptable without

 

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2011 Stock Incentive Plan (As Amended) Option Award Agreement for International Optionees

 

adverse accounting consequences) of the Optionee’s estimated tax obligations. The Optionee is deemed to have been issued the full number of Shares subject to the exercise, notwithstanding that a number of the Shares are held back solely for the purpose of paying the Tax-Related Items due as a result of any aspect of the Optionee’s participation in the Plan.

The Optionee shall pay to the Employer any amount of Tax-Related Items that the Employer may be required to withhold as a result of the Optionee’s participation in the Plan that cannot be satisfied by the means previously described. The Company may refuse to issue or deliver the Shares or the proceeds of the sale of Shares, if the Optionee fails to comply with the Optionee’s obligations in connection with the Tax-Related Items.

Further, in consideration of the grant of the Options, no claim or entitlement to compensation or damages arises if, in satisfying the Optionee’s (and/or the Employer’s) obligation for Tax-Related Items, the Company and/or the Employer withholds an amount in excess of the amount legally required to be withheld, the Optionee irrevocably releases the Company and the Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Agreement, the Optionee shall be deemed irrevocably to have waived his or her entitlement to pursue such claim or damages.

11. No Employment Rights . The award of the Options pursuant to this Agreement shall not give the Optionee any right to continued service with the Company or a Related Entity and shall not interfere with the ability of the Employee to terminate the Optionee’s Service with the Company at any time with or without cause.

12. Severability . The provisions of this Agreement are severable and if all or any part of this Agreement or the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity shall not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid. Any Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid shall, if possible, be construed in a manner which will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful and valid.

13. Rights as Stockholder . The Optionee shall not have voting, dividend or any other rights as a stockholder of the Company with respect to the Options. Upon exercise of the Optionee’s Options into Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), the Optionee will obtain full voting, dividend and other rights as a stockholder of the Company.

14. Administration . The Administrator shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation, and application of the Plan as are consistent therewith and to interpret or revoke any such rules. All actions taken and all interpretations and determinations made by the Administrator shall be final and binding upon the Optionee, the Company, and all other interested persons. No Administrator shall be personally liable for any action, determination, or interpretation made in good faith with respect to the Plan or this Agreement.

 

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2011 Stock Incentive Plan (As Amended) Option Award Agreement for International Optionees

 

15. Effect on Other Employee Benefit Plans . The value of the Options granted pursuant to this Agreement shall not be included as compensation, earnings, salaries, or other similar terms used when calculating the Optionees’s benefits under any employee benefit plan sponsored by the Company or any Related Entity, except as such plan otherwise expressly provides. The Company expressly reserves its rights to amend, modify, or terminate any of the Company’s or any Related Entity’s employee benefit plans.

16. Nature of the Grant . In accepting the Options, the Optionee acknowledges that:

(a) the Plan is established voluntarily by the Company, it is discretionary in nature and may be modified, amended, suspended or terminated by the Company at any time, unless otherwise provided in the Plan and this Agreement;

(b) the grant of the Options is voluntary and occasional and does not create any contractual or other right to receive future awards of options, or benefits in lieu of options even if options have been awarded repeatedly in the past;

(c) all decisions with respect to future grants of options, if any, will be at the sole discretion of the Company;

(d) the Optionee’s participation in the Plan is voluntary;

(e) the Options do not constitute compensation of any kind for services rendered to the Company or to the Employer, and the Options are outside the scope of the Optionee’s employment contract, if any;

(f) the Options are not part of normal or expected compensation or salary for any purpose, including, but not limited to, calculation of any overtime, severance, resignation, termination, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments and in no event should be considered as compensation for, or relating in any way to, past services for the Company or the Employer;

(g) in the event that the Optionee is not an Employee, the grant of the Options will not be interpreted to form an employment contract or relationship with the Company; and furthermore, the grant of the Options will not be interpreted to form an employment contract with the Employer or any Related Entity;

(h) the future value of the underlying Shares is unknown and cannot be predicted with certainty;

(i) if the Optionee receives Shares upon exercise of the Options, the value of such Shares may increase or decrease in value;

(j) in consideration of the grant of the Options, no claim or entitlement to compensation or damages arises from termination of the Options or diminution in value of the Options or Shares received upon vesting of the Options resulting from termination of the Optionee’s Service to the Company or the Employer (for any reason whatsoever and whether or not in breach of local labor laws) and the Optionee irrevocably releases the Company and the

 

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2011 Stock Incentive Plan (As Amended) Option Award Agreement for International Optionees

 

Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Agreement, the Optionee shall be deemed irrevocably to have waived his or her entitlement to pursue such claim.

17. Data Privacy Notice and Consent . The Optionee hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of his or her personal data as described in this Agreement by and among, as applicable, the Employer, the Company and Related Entities for the exclusive purpose of implementing, administering and managing the Optionee’s participation in the Plan.

The Optionee understands that the Company and the Employer may hold certain personal information about the Optionee, including, but not limited to, the Optionee’s name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any Shares or directorships held in the Company, details of all options or any other entitlement to Shares awarded, canceled, vested, unvested or outstanding in the Optionee’s favor, for the purpose of implementing, administering and managing the Plan (“Data”).

The Optionee understands that Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in the Optionee’s country, or elsewhere, and that the recipient’s country may have different data privacy laws and protections than the Optionee’s country. The Optionee understands that the Optionee may request a list with the names and addresses of any potential recipients of the Data by contacting his or her local human resources representative. The Optionee authorizes the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing his or her participation in the Plan, including any requisite transfer of such Data as may be required to a broker, escrow agent or other third party with whom the Shares received upon exercise of the Options may be deposited. The Optionee understands that Data will be held only as long as is necessary to implement, administer and manage his or her participation in the Plan. The Optionee understands that he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing his or her local human resources representative. The Optionee understands, however, that refusal or withdrawal of consent may affect his or her ability to participate in the Plan. For more information on the consequences of his or her refusal to consent or withdrawal of consent, the Optionee understands that he or she may contact his or her local human resources representative.

18. Amendment of Agreement . This Agreement may be amended only by a writing which specifically states that it amends this Agreement. Notwithstanding the foregoing, this Agreement may be amended unilaterally by the Committee by a writing which specifically states that it is amending this Agreement, so long as a copy of such amendment is delivered to the Optionee, and provided that no such amendment adversely affects the rights of the Optionee. Limiting the foregoing, the Committee reserves the right to change, by written notice to the Optionee, the provisions of the Options or this Agreement in any way it may deem necessary or

 

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2011 Stock Incentive Plan (As Amended) Option Award Agreement for International Optionees

 

advisable to carry out the purpose of the grant as a result of any change in applicable laws or regulations or any future law, regulation, ruling, or judicial decision, or, to the extent permissible under the Plan (including, but not limited to, Sections 10, 11 and 13 of the Plan).

19. Notices . Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of its Stock Administrator. Any notice to be given to the Optionee shall be addressed to the Optionee at the address listed in the Employer’s records. By a notice given pursuant to this Section, either party may designate a different address for notices. Any notice shall have been deemed given when actually delivered.

20. Construction . The Options are being issued pursuant to the Plan and are subject to the terms of the Plan. A copy of the Plan is available upon request during normal business hours at the principal executive offices of the Company. To the extent that any provision of this Agreement violates or is inconsistent with a provision of the Plan, the Plan provision shall govern and any inconsistent provision in this Agreement shall be of no force or effect.

21. Entire Agreement . The Plan is incorporated herein by reference. The Plan and this Agreement constitute the entire agreement of the Company and the Optionee with respect to the subject matter hereof and, unless indicated otherwise herein, supersede in their entirety all prior undertakings and agreements of the Company and the Optionee with respect to the subject matter hereof.

22. Language . If the Optionee has received this Agreement or any other document related to the Plan translated into a language other than English and if the translated version is different than the English version, the English version will control.

23. Electronic Delivery . The Company may, in its sole discretion, decide to deliver any documents related to the Options granted under the Plan and participation in the Plan or future options that may be granted under the Plan by electronic means or to request the Optionee’s consent to participate in the Plan by electronic means. The Optionee hereby consents to receive such documents by electronic delivery and, if requested, to agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.

24. Miscellaneous .

(a) The Company has established the Plan voluntarily, it is discretionary in nature and the Board may terminate, amend, or modify the Plan at any time; provided, however, that no such termination, amendment, or modification of the Plan may in any way adversely affect the Optionee’s rights under this Agreement, without the Optionee’s written approval unless such termination, amendment, or modification of the Plan is necessary in order to comply with any change in applicable laws or regulations or any future law, regulation, ruling, or judicial decision or as otherwise permissible under the Plan (including, but not limited to, Sections 10, 11 and 13 of the Plan).

(b) All obligations of the Company under the Plan and this Agreement in a Change of Control shall be governed by the Plan, other than as set forth in Section 3(a)(iii) above.

 

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2011 Stock Incentive Plan (As Amended) Option Award Agreement for International Optionees

 

(c) To the extent not preempted by United States federal law, this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to its principles of conflict of laws.

25. Country Specific Terms . Appendix A contains additional terms and conditions of the Agreement applicable to Participants residing in those countries. In addition, Appendix A also contains information and notices of exchange control and certain other issues of which the Participant should be aware.

26. Acceptance of Terms and Conditions . By accepting the terms and conditions applicable to the Options, the Optionee agrees to abide by all of the governing terms and provisions of the Plan and this Agreement. Additionally, the Optionee acknowledges having read and understood the terms and conditions of the Plan and this Agreement and has had an opportunity to obtain the advice of counsel prior to accepting this Agreement. The Optionee must accept his or her agreement to abide by the terms and conditions of the Plan and Agreement by executing this Agreement electronically or, if otherwise instructed by the Company, by printing and signing a paper copy of this Agreement and returning it to the appropriate Company representative. In addition, the exercise of these Options shall be considered an additional acknowledgment of the terms and conditions contained in the Plan and Agreement.

*    *    *    *    *

 

OPTIONEE SIGNATURE
PRINTED NAME
DATE

 

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2011 Stock Incentive Plan (As Amended) Option Award Agreement for International Optionees

 

APPENDIX A

TERMS AND CONDITIONS

This Appendix A, which is part of the Agreement, contains additional terms and conditions of the Agreement that will apply to the Participant if he or she resides in one of the countries listed below. Capitalized terms used but not defined herein shall have the same meanings assigned to them in the Plan and/or the Agreement.

NOTIFICATIONS

This Appendix A also includes information regarding exchange control and certain other issues of which the Participant should be aware with respect to his or her participation in the Plan. The information is based on the securities, exchange control and other laws in effect in the respective countries as of November 2013. Such laws are often complex and change frequently. The Company therefore strongly recommends that the Participant not rely on the information as the only source of information relating to the consequences of his or her participation in the Plan because such information may be outdated when the Participant exercises the Options and/or sells any Shares acquired pursuant to the Options.

AUSTRIA

Exchange Control Information . If the Participant holds Shares acquired under the Plan outside of Austria, the Participant must submit a report to the Austrian National Bank. An exemption applies if the value of the Shares as of any given quarter does not exceed €30,000,000 or as of December 31 does not exceed €5,000,000. If the former threshold is exceeded, quarterly obligations are imposed; whereas, if the latter threshold is exceeded, annual reports must be provided. The annual reporting date is December 31 and the deadline for filing the annual report is March 31 of the following year.

When the Participant sells Shares acquired under the Plan, there may be exchange control obligations if the cash proceeds are held outside of Austria. If the transaction volume of all accounts abroad exceeds €3,000,000 the movements and balances of all accounts must be reported monthly, as of the last day of the month, on or before the fifteenth day of the following month.

BELGIUM

Tax Reporting Information. You are required to report any bank accounts opened and maintained outside Belgium on your annual tax return.

 

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2011 Stock Incentive Plan (As Amended) Option Award Agreement for International Optionees

 

CHINA (PRC)

Exchange Control Restrictions. The Participant agrees to comply with any requirements that may be imposed by the Company in the future in order to facilitate compliance with exchange control requirements in China. These requirements may include, but are not limited to, immediate repatriation to China of the sale proceeds, an immediate sale of the Shares at exercise, and/or repatriation of the cash proceeds through a special exchange control account.

FRANCE

Exchange Control Information.  If the Participant imports or exports cash ( e.g. , sales proceeds received under the Plan) with a value equal to or exceeding €7,600 and does not use a financial institution to do so, he or she must submit a report to the customs and excise authorities. If the Participant maintains a foreign bank account, he or she is required to report such account to the French tax authorities when filing his or her annual tax return.

GERMANY

Exchange Control Information.  Cross-border payments in excess of €12,500 must be reported monthly to the German Federal Bank. If the Participant uses a German bank to transfer a cross-border payment in excess of €12,500 under the Plan, the bank will make the report for the Participant.

IRELAND

Director Notification Requirement . If the Participant is a director, shadow director or secretary of an Irish Subsidiary or Related Entity of the Company, pursuant to Section 53 of the Irish Company Act 1990, he or she must notify the Irish Subsidiary or Related Entity of the Company in writing within five (5) business days of receiving or disposing of an interest in the Company ( e.g. , Options, Shares, etc.), or within five (5) business days of becoming aware of the event giving rise to the notification requirement, or within five (5) days of becoming a director, shadow director or secretary if such an interest exists at that time. This notification requirement also applies with respect to the interests of a spouse or minor child, whose interests will be attributed to the director, shadow director or secretary.

ISRAEL

No additional provisions apply.

ITALY

Plan Document Acknowledgment. By accepting the terms and conditions of the Options, the Participant acknowledges that he or she has received a copy of the Plan and the Agreement and has reviewed the Plan and the Agreement, including this Appendix A, in their entirety and fully understands and accepts all provisions of the Plan and the Agreement.

Data Privacy. In addition to the data privacy provision that is set forth in the Agreement, the Participant also consents to the following additional data privacy-related terms:

I am aware that providing the Company and my Employer with Data is necessary for participation in the Plan and that my refusal to provide such Data may affect my ability to participate in the Plan. The Controller of personal data processing is the Company with

 

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2011 Stock Incentive Plan (As Amended) Option Award Agreement for International Optionees

 

registered offices at 4650 Cushing Parkway, Fremont, California, 94538, United States and, pursuant to D.lgs 196/2003, its representatives in Italy are Lam Research S.r.l., with registered offices in Centro Direzionale Colleoni, Palazzo Sirio 3-Ing, 20041 Agrate Brianza-MI, Italy.

I understand that I may at any time exercise the rights acknowledged by Section 7 of Legislative Decree June 30, 2003 n.196, including, but not limited to, the right to access, delete, update, request the rectification of my Data and cease, for legitimate reasons, the data processing. Furthermore, I am aware that my Data will not be used for direct marketing purposes.

Exchange Control Information. Participant is responsible for all reporting requirements regarding (i) any transfers of cash or shares to or from Italy and (ii) any foreign investments or investments (including proceeds from the sale of Shares) held outside of Italy.

JAPAN

Exchange Control Information. If the Participant acquired Shares valued at more than ¥100,000,000 in a single transaction, the Participant must file a Securities Acquisition Report with the Ministry of Finance through the Bank of Japan within 20 days of the purchase of Shares. In addition, if Participant pays more than ¥30,000,000 in a single transaction for the purchase of Shares at exercise, Participant must file a Payment Report with the Ministry of Finance through the Bank of Japan by the 20th day of the month following the month in which the payment was made. The precise reporting requirements vary depending on whether the relevant payment is made through a bank in Japan. A Payment Report is required independently of a Securities Acquisition Report. Therefore, if the total amount that Participant pays in a one-time transaction to exercise your Options and purchase Shares exceeds ¥100,000,000, Participant must file both a Securities Acquisition Report and a Payment Report.

KOREA

Exchange Control Information. If the Participant receives US$500,000 or more from the sale of Shares, Korean exchange control laws require the Participant to repatriate the proceeds to Korea within 18 months of the sale.

To remit funds out of South Korea to exercise the Options, Participant must obtain a confirmation of the remittance by a foreign exchange bank in South Korea. This is an automatic procedure (i.e., the bank does not need to approve the remittance) and the process should not take more than a single day. Participant likely will need to present to the bank processing the transfer supporting documentation evidencing the nature of the remittance.

MALAYSIA

Director Notification Requirement . If the Participant is a Director of the local Subsidiary, he or she must notify the local Subsidiary of the grant and also provide notice of any change in his or her interest in the Options ( e.g. exercise or the sale of Shares).

Exchange Control Information. Because exchange control regulations change frequently and without notice, you should consult your legal advisor before selling shares to ensure compliance with current regulations. It is Participant’s responsibility to comply with exchange control laws in Malaysia, and neither the Company nor your employer will be liable for any fines or penalties resulting from a failure to comply with applicable laws. For purposes of compiling balance of payment statistics on the inflow and outflow of funds from Malaysia, the Bank Negara Malaysia

 

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2011 Stock Incentive Plan (As Amended) Option Award Agreement for International Optionees

 

must be notified of any remittance of funds between residents and non-residents of an amount equal to RM200,001 or greater from Malaysia.

NETHERLANDS

Insider-Trading Notification. The Participant should be aware of the Dutch insider-trading rules, which may impact the sale of Shares acquired at exercise of the Options. In particular, the Participant may be prohibited from effectuating certain transactions involving Shares if the Participant has inside information about the Company. If the Participant is uncertain whether the insider-trading rules apply to him or her, the Participant should consult his or her personal legal advisor. By accepting the Agreement and participating in the Plan, the Participant acknowledges having read and understood this notification and acknowledges that it is the Participant’s responsibility to comply with the following Dutch insider-trading rules.

SINGAPORE

Director Notification Obligation. If the Participant is a director, associate director or shadow director of a Singaporean Subsidiary or Related Entity of the company, the Participant is subject to certain notification requirements under the Singapore Companies Act. Among these requirements is an obligation to notify the Singaporean Subsidiary or Related Entity of the Company in writing when the Participant receives an interest ( e.g. , Options or Shares) in the Company or any Subsidiary or Related Entity of the Company. In addition, the Participant must notify the Singaporean Subsidiary or Related Entity of the Company when the Participant sells Shares or shares of any Subsidiary or Related Entity of the Company (including when the Participant sells Shares acquired at exercise of the Options). These notifications must be made within two (2) days of acquiring or disposing of any interest in the Company or any Subsidiary or Related Entity of the Company. In addition, a notification of the Participant’s interests in the Company or any Subsidiary or Related Entity of the Company must be made within two (2) days of becoming a director.

Tax Information . The Participant may be eligible for certain tax favored schemes applicable to the Options. The participant should consult with his or her tax advisor to determine if these tax favorable schemes apply to his or her situation.

SLOVAKIA

Exchange Control Information . It is the Participant’s obligation to comply with exchange control requirements in the Slovakia Republic, including any notification requirements applicable to opening or maintaining any foreign bank or brokerage accounts.

 

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2011 Stock Incentive Plan (As Amended) Option Award Agreement for International Optionees

 

SLOVENIA

No additional provisions apply.

SWITZERLAND

Securities Law Information. The offer of the Option is considered a private offering in Switzerland and is therefore not subject to securities registration in Switzerland.

TAIWAN

Exchange Control Information. The Participant may acquire and remit foreign currency (including funds for the purchase of Shares and proceeds from the sale of Shares) up to US$5,000,000 per year without prior approval.

If the transaction amount is TWD500,000 or more in a single transaction, the Participant must submit a Foreign Exchange Transaction Form. If the transaction amount is US$500,000 or more in a single transaction, the Participant must also provide supporting documentation to the satisfaction of the remitting bank.

UNITED KINGDOM

No additional provisions apply.

 

Page 14 of 15


LAM RESEARCH CORPORATION (Novellus Systems, Inc.)

2011 Stock Incentive Plan (As Amended)

Nonstatutory Stock Option Award Agreement

EXHIBIT A

Optionee (Name & Employee Number):

Grant Date:

Number of Options:

Exercise Price:

 

Vesting Date(s):  

[Insert Number] Options on [Insert Date]

 

[Insert Number] Options on [Insert Date]

 

[Insert Number] Options on [Insert Date]

Expiration Date: 7 years from the Grant Date

Leave of Absence: 31 st day (or 91 st day if reemployment guaranteed by statute or contract)

Termination of Service Provisions:

Any Reason (except death, Disability and Retirement): 90 days

Death: 12 months

Disability: 12 months

Retirement Extended Exercise Period: 90 days plus an additional 21 months

Retirement: At least 55 years old and has completed at least 5 years of Service

 

Page 15 of 15

Exhibit 10.12

LAM RESEARCH CORPORATION (Novellus Systems, Inc.)

2011 Stock Incentive Plan (As Amended)

Market-Based Performance Restricted Stock Unit Award Agreement

(U.S. Participants)

Pursuant to the terms of the 2011 Stock Incentive Plan (As Amended) (the “Plan”) Lam Research Corporation, a Delaware corporation (the “Company”), hereby awards market-based performance restricted stock units (“mPRSUs”) to the Participant on the terms and conditions as set forth in this Market-Based Performance Restricted Stock Unit Award Agreement (including the attached Exhibit) (the “Agreement”) and the Plan. Capitalized terms used but not defined in this Agreement shall have the meaning specified in the Plan. This Agreement is effective as of the Grant Date.

NOW, THEREFORE , it is hereby agreed as follows:

1. Award of mPRSUs . Subject to the terms and conditions of this Agreement and the Plan (the terms of which are incorporated herein by reference) and effective as of the date set forth above, the Company hereby grants to the Participant a Target Number of mPRSUs as set forth in the Exhibit. Subject to the Company’s attainment of the relative performance set forth in the attached Exhibit (the “Performance Criteria”), the Participant may vest in the mPRSUs in a designated Payout Range as set forth in the Exhibit. The mPRSUs represent an unfunded, unsecured promise by the Company to deliver Shares subject to the terms and conditions of this Agreement.

2. Vesting .

(a) Subject to the terms and conditions of this Agreement, the mPRSUs shall vest and become payable in Shares on the Performance Vesting Date set forth in the attached Exhibit. The number of mPRSUs that vest shall be determined by the Company’s performance under the Vesting Formula during the Performance Period, as set forth in the attached Exhibit. Except as otherwise provided herein, the Participant’s right to receive Shares subject to the mPRSUs is contingent upon the Participant continuing to provide Service (as defined in Section 3 below) to the Company (or any Related Entity) through the Performance Vesting Date.

(b) Notwithstanding the provisions above, in the event of a Change in Control of the Company prior to the end of the Performance Period in Section 2(a), a portion of the mPRSUs shall convert into a cash award (the “Cash Award”). The number of mPRSUs that convert into a Cash Award shall be the sum of the “performance pro rata” number of Shares and the “target pro rata” number of Shares. This sum shall be multiplied by the closing price of the Company’s common stock as of the closing date of the Change in Control to determine the dollar amount of the Cash Award. The Cash Award will vest on the Performance Vesting Date, contingent upon the Participant continuing to provide Service (as defined in Section 3 below) to the Company (or any Affiliate) through the Performance Vesting Date. Any remaining portion of the mPRSUs that are not converted into a Cash Award shall be cancelled.

(i) Performance Pro Rata . The Target Number of mPRSUs (as set forth in the attached Exhibit) shall be multiplied by the total number of days from the Grant Date

 

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2011 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for U.S. Participants

 

until the closing date of the Change in Control divided by the number of days in the Performance Period (“Elapsed Target Shares”). The Company’s performance under the Vesting Formula (as set forth in the attached Exhibit) from the first day of the Performance Period until the closing date of the Change in Control shall be applied to the Elapsed Target Shares to determine the “performance pro rata” number of Shares.

(ii) Target Pro Rata . The Target Number of mPRSUs (as set forth in the attached Exhibit) shall be multiplied by the total number of days from the day following the closing date of the Change in Control until the last day of the Performance Period divided by the number of days in the Performance Period to determine the “target pro rata” number of Shares.

3. Effect of Termination of Service or Leave of Absence .

(a) For purposes of this Agreement, “Service” shall mean the performance of services for the Company (or any Related Entity) in the capacity of an Employee and shall be considered terminated on the last day the Participant is on payroll. In the event of termination of the Participant’s Service by the Participant or by the Company or a Related Entity for any reason, excluding Participant’s death or Disability before the mPRSUs have vested, the unvested mPRSUs shall be cancelled by the Company (subject to the terms of any applicable Employment or Change in Control Agreement).

(b) In the event of termination of the Participant’s Service due to death, a portion of the mPRSUs granted to the Participant shall vest on the date of death. To determine the applicable number of Shares, the Target Number of mPRSUs (as set forth in the attached Exhibit) shall be multiplied by the total number of days from the Grant Date until the date of death, divided by the number of days in the Performance Period to determine the “death pro rata” target number of Shares. The Company’s performance under the Vesting Formula (as set forth in the attached Exhibit) from the first day of the Performance Period until the date of death shall be applied to the greater of: (i) the “death pro rata” target number of Shares or (ii) 50% of the original Target Number of mPRSUs (as set forth in the attached Exhibit), to determine the number of Shares which shall vest on the date of death (the “Death Vesting Date”). Any remaining unvested portion of the mPRSUs shall be cancelled.

(c) In the event of termination of the Participant’s Service due to Disability, a portion of the mPRSUs granted to the Participant shall vest on the date the Disability is incurred. To determine the applicable number of Shares, the Target Number of mPRSUs (as set forth in the attached Exhibit) shall be multiplied by the total number of days from the Grant Date until the date the Disability is incurred, divided by the number of days in the Performance Period to determine the “disability pro rata” target number of Shares. The Company’s performance under the Vesting Formula (as set forth in the attached Exhibit) from the first day of the Performance Period until the date the Disability is incurred shall be applied to the greater of: (i) the “disability pro rata” target number of Shares or (ii) 50% of the original Target Number of mPRSUs (as set forth in the attached Exhibit) to determine the number of Shares which shall vest on the date the Disability is incurred (the “Disability Vesting Date”, and collectively with “Performance Vesting Date”, and the “Death Vesting Date”, the “Vesting Date”). Any remaining unvested portion of the mPRSUs shall be cancelled.

 

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2011 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for U.S. Participants

 

(d) Vesting of the mPRSUs will be suspended and vesting credit will no longer accrue as of the day of the Leave of Absence as set forth in Exhibit A, unless otherwise determined by the Administrator or required by contract or statute. If the Participant returns to Service immediately after the end of an approved Leave of Absence, vesting credit shall continue to accrue from that date of continued Service.

4. Form and Timing of Payment .

(a) Subject to Section 5 of this Agreement and provided that the Participant has satisfied the vesting requirements of Section 2 or 3 of this Agreement, on each Vesting Date, as applicable, the mPRSUs shall automatically be converted into unrestricted Shares. Such Shares will be issued to the Participant (as evidenced by the appropriate entry in the books of the Company or a duly authorized transfer agent of the Company) on the applicable Vesting Date (or as soon as practicable), but in any event, within the period ending on the later to occur of the date that is 2  1 2 months after the end of (i) the Participant’s tax year that includes the applicable Vesting Date, or (ii) the Company’s tax year that includes the applicable Vesting Date.

(b) Shares issued in respect of mPRSUs shall be deemed to be issued in consideration of past services actually rendered by the Participant to the Company or a Related Entity or for its benefit for which the Participant has not previously been compensated or for future services to be rendered, as the case may be, which the Company deems to have a value at least equal to the aggregate par value of the Shares subject to the mPRSUs.

5. Tax Withholding Obligations . Regardless of any action the Company or the Participant’s employer (the “Employer”) takes with respect to any or all income tax (including federal, state and local taxes), social insurance, payroll tax, or other tax-related withholding (“Tax-Related Items”), the Participant acknowledges that the ultimate liability for all Tax-Related Items legally due by the Participant is and remains the Participant’s responsibility and that the Company and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the mPRSUs, including the grant of the mPRSUs, the vesting of the mPRSUs, or the receipt of an equivalent cash payment, the subsequent sale of any Shares acquired at vesting and the receipt of any dividends; and (ii) do not commit to structure the terms of the grant or any aspect of the mPRSUs to reduce or eliminate the Participant’s liability for Tax-Related Items or achieve any particular tax result.

Prior to the issuance of Shares upon vesting of the mPRSUs (or any other tax or withholding event), the Participant shall pay, or make arrangements satisfactory to the Company (in the Company’s sole discretion) to satisfy all withholding obligations. In those cases where a prior arrangement has not been made (or where the amount of money provided under the prior arrangement is insufficient to satisfy the obligations for Tax-Related Items), the Company shall withhold a number of whole Shares otherwise deliverable at vesting having a Fair Market Value sufficient to satisfy the statutory minimum (or such higher amount as is allowable without adverse accounting consequences) of the Participant’s estimated obligations for Tax-Related Items applicable to the mPRSUs; such withholding will result in the issuance to the participant of a lower number of Shares.

 

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2011 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for U.S. Participants

 

The Company and/or the Employer may also, in lieu of or in addition to the foregoing, at the Company’s sole discretion, as authorized herein by the Participant, withhold all applicable Tax-Related Items legally payable by the Participant from the Participant’s wages or other cash compensation or to withhold in one of the following ways, as determined by the Company: (i) require the Participant to deposit with the Company an amount of cash sufficient to meet his or her obligation for Tax-Related Items, and/or (ii) sell or arrange for the sale of Shares to be issued on the vesting of the mPRSUs to satisfy the withholding obligation. If the Participant’s obligation for Tax-Related Items is satisfied as described in (ii) of this section, the Company will endeavor to sell only the number of Shares required to satisfy the Participant’s obligations for Tax-Related Items; however, the Participant agrees that the Company may sell more Shares than necessary to cover the Tax-Related Items and that in such event, the Company will reimburse the Participant for the excess amount withheld, in cash and without interest. The Participant shall pay to the Employer any amount of Tax-Related Items that the Employer may be required to withhold as a result of the Participant’s receipt of the mPRSUs, the vesting of the mPRSUs that cannot be satisfied by the means previously described. The Company may refuse to deliver Shares to the Participant if the Participant fails to comply with his or her obligation in connection with the Tax-Related Items as described herein. The Participant hereby consents to any action reasonably taken by the Company and/or the Employer to meet his or her obligation for Tax-Related Items.

Further, in consideration of the grant of the mPRSUs, no claim or entitlement to compensation or damages arises if, in satisfying the Participant’s (and/or the Employer’s) obligation for Tax-Related Items, the Company and/or the Employer withholds an amount in excess of the amount legally required to be withheld, the Participant irrevocably releases the Company and the Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Agreement, the Participant shall be deemed irrevocably to have waived his or her entitlement to pursue such claim or damages.

6. Restriction on Transferability . Prior to vesting and delivery of the Shares, neither the mPRSUs, nor the Shares or any beneficial interest therein, may be sold, transferred, pledged, assigned, or otherwise alienated at any time. Any attempt to do so contrary to the provisions hereof shall be null and void. Notwithstanding the above, distribution can be made pursuant to will, the laws of descent and distribution, and if provided by the Administrator, intra-family transfer instruments, or to an inter vivos trust, or as otherwise provided by the Administrator. The terms of this Agreement shall be binding upon the executors, administrators, heirs, successors and assigns of the Participant.

7. Requirements of Law . The issuance of Shares upon vesting of the mPRSUs is subject to Sections 9 and 14(b) of the Plan, which generally provides that any such issuance shall be subject to compliance by the Company and the Participant with all applicable requirements of law relating thereto and with all applicable regulations of any stock exchange on which the Shares may be listed for trading at the time of such issuance. The inability of the Company to obtain approval from any regulatory body having authority deemed by the Company to be necessary to the lawful issuance of any Shares hereby shall relieve the Company of any liability with respect to the non-issuance of the Shares as to which such approval shall not have been obtained. The Company, however, shall use its reasonable efforts to obtain all such approvals.

 

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2011 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for U.S. Participants

 

8. Rights as Stockholder . The Participant shall not have voting, dividend or any other rights as a stockholder of the Company with respect to the mPRSUs. Upon settlement of the Participant’s mPRSUs into Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), the Participant will obtain full voting, dividend and other rights as a stockholder of the Company.

9. No Compensation Deferrals . Neither the Plan nor this Agreement is intended to provide for an elective deferral of compensation that would be subject to Section 409A (“Section 409A”) of the Internal Revenue Code of 1986, as amended (the “Code”). If, notwithstanding the parties’ intent in this regard, at the time of the Participant’s termination of Service, he or she is determined to be a “specified employee” as defined in Code Section 409A, and one or more of the payments or benefits received or to be received by the Participant pursuant to the mPRSUs would constitute deferred compensation subject to Code Section 409A, no such payment or benefit will be provided under the mPRSUs until the earliest of (A) the date which is six (6) months after the Participant’s “separation from service” for any reason, other than death or “disability” (as such terms are used in Section 409A(a)(2) of the Code), (B) the date of the Participant’s death or “disability” (as such term is used in Section 409A(a)(2)(C) of the Code), or (C) the effective date of a “change in the ownership or effective control” or a “change in ownership of a substantial portion of the assets” of the Company (as such terms are used in Section 409A(a)(2)(A)(v) of the Code). The provisions of this Section 9 shall only apply to the extent required to avoid the Participant’s incurrence of any additional tax or interest under Code Section 409A or any regulations or U.S. Department of the Treasury (“Treasury”) guidance promulgated thereunder. In addition, if any provision of the mPRSUs would cause the Participant to incur any additional tax or interest under Code Section 409A or any regulations or Treasury guidance promulgated thereunder, the Company reserves the right, to the extent the Company deems necessary or advisable in its sole discretion, to unilaterally amend or modify the Plan and/or this Agreement to conform it to the maximum extent practicable to the original intent of the applicable provision without violating the provisions of Code Section 409A, including without limitation to limit payment or distribution of any amount of benefit hereunder in connection with a Change in Control to a transaction meeting the definitions referred to in clause (C) above, or in connection with any disability to a “disability” as referred to in (B) above; provided however that the Company makes no representation that these Performance Restricted Stock Units are not subject to Section 409A nor makes any undertaking to preclude Section 409A from applying to these mPRSUs. In addition, to the extent the Company determines it appropriate to accelerate any vesting conditions applicable to this award, then to the extent necessary to avoid the Participant’s incurring any additional tax or interest as a result of such vesting acceleration under Code Section 409A or any regulations or Treasury guidance promulgated thereunder, and notwithstanding Section 4 above, the Company may as a condition to extending such acceleration benefits provide for the Shares to be issued upon settlement of the mPRSUs to be issued on the earliest date (the “Permitted Distribution Date”) that would obviate application of such additional tax or interest rather than issuing them upon the date on which such vesting is effective as would otherwise be required under Section 2 (or as soon as practicable after such Permitted Distribution Date and in no event later than that last day of the grace period following such date permitted under Code Section 409A).

10. Administration . The Administrator shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation, and application of

 

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2011 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for U.S. Participants

 

the Plan as are consistent therewith and to interpret or revoke any such rules. All actions taken and all interpretations and determinations made by the Administrator shall be final and binding upon the Participant, the Company, and all other interested persons. No Administrator shall be personally liable for any action, determination, or interpretation made in good faith with respect to the Plan or this Agreement.

11. Effect on Other Employee Benefit Plans . The value of the mPRSUs granted pursuant to this Agreement shall not be included as compensation, earnings, salaries, or other similar terms used when calculating the Participant’s benefits under any employee benefit plan sponsored by the Company or any Related Entity, except as such plan otherwise expressly provides. The Company expressly reserves its rights to amend, modify, or terminate any of the Company’s or any Related Entity’s employee benefit plans.

12. No Employment Rights . The award of the mPRSUs pursuant to this Agreement shall not give the Participant any right to continued Service with the Company or a Related Entity and shall not interfere with the ability of the Employer to terminate the Participant’s Service with the Company at any time with or without cause.

13. Nature of the Grant . In accepting the mPRSUs, the Participant acknowledges that:

(a) the Plan is established voluntarily by the Company, it is discretionary in nature and may be modified, amended, suspended or terminated by the Company at any time, unless otherwise provided in the Plan and this Agreement;

(b) the grant of mPRSUs is voluntary and occasional and does not create any contractual or other right to receive future awards of mPRSUs, or benefits in lieu of mPRSUs even if mPRSUs have been awarded repeatedly in the past;

(c) all decisions with respect to future grants of mPRSUs, if any, will be at the sole discretion of the Company;

(d) the Participant’s participation in the Plan is voluntary;

(e) the mPRSUs are outside the scope of the Participant’s employment contract, if any;

(f) the mPRSUs are not part of normal or expected compensation or salary for any purpose, including, but not limited to, calculation of any overtime, severance, resignation, termination, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments;

(g) in the event that the Participant is not an employee of the Company, the grant of the mPRSUs will not be interpreted to form an employment contract or relationship with the Company; and furthermore, the grant of the mPRSUs will not be interpreted to form an employment contract with the Employer or any Related Entity;

 

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2011 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for U.S. Participants

 

(h) the future value of the underlying Shares is unknown and cannot be predicted with certainty;

(i) if the Participant receives Shares upon vesting of the mPRSUs, the value of such Shares may increase or decrease in value;

(j) in consideration of the grant of the mPRSUs, no claim or entitlement to compensation or damages arises from termination of the mPRSUs or diminution in value of the mPRSUs received upon vesting of mPRSUs resulting from termination of the Participant’s Service to the Company or the Employer (for any reason whatsoever and whether or not in breach of local labor laws) and the Participant irrevocably releases the Company and the Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Agreement, the Participant shall be deemed irrevocably to have waived his or her entitlement to pursue such claim.

14. Amendment of Agreement . This Agreement may be amended only by a writing which specifically states that it amends this Agreement. Notwithstanding the foregoing, this Agreement may be amended unilaterally by the Committee by a writing which specifically states that it is amending this Agreement, so long as a copy of such amendment is delivered to the Participant, and provided that no such amendment adversely affects the rights of the Participant. Limiting the foregoing, the Committee reserves the right to change, by written notice to the Participant, the provisions of the mPRSUs or this Agreement in any way it may deem necessary or advisable to carry out the purpose of the grant as a result of any change in applicable laws or regulations or any future law, regulation, ruling, or judicial decision, or, to the extent permissible under the Plan (including, but not limited to, Sections 10, 11 and 13 of the Plan).

15. Notices . Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of its Administrator. Any notice to be given to the Participant shall be addressed to the Participant at the address listed in the Employer’s records. By a notice given pursuant to this Section, either party may designate a different address for notices. Any notice shall have been deemed given when actually delivered.

16. Severability . The provisions of this Agreement are severable and if all or any part of this Agreement or the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity shall not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid. Any Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid shall, if possible, be construed in a manner which will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful and valid.

17. Construction . The mPRSUs are being issued pursuant to the Plan and are subject to the terms of the Plan. A copy of the Plan is available upon request during normal business hours at the principal executive offices of the Company. To the extent that any provision of this Agreement violates or is inconsistent with a provision of the Plan, the Plan provision shall govern and any inconsistent provision in this Agreement shall be of no force or effect.

 

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2011 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for U.S. Participants

 

18. Electronic Delivery . The Company may, in its sole discretion, decide to deliver any documents related to the mPRSUs granted under the Plan and participation in the Plan or future mPRSUs that may be granted under the Plan by electronic means or to request the Participant’s consent to participate in the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery and, if requested, to agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.

19. Entire Agreement . The Plan is incorporated herein by reference. The Plan and this Agreement constitute the entire agreement of the Company and the Participant with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Participant with respect to the subject matter hereof.

20. Miscellaneous .

(a) The Company has established the Plan voluntarily, it is discretionary in nature and the Board may terminate, amend, or modify the Plan at any time; provided, however, that no such termination, amendment, or modification of the Plan may in any way adversely affect the Participant’s rights under this Agreement, without the Participant’s written approval unless such termination, amendment, or modification of the Plan is necessary in order to comply with any change in applicable laws or regulations or any future law, regulation, ruling, or judicial decision or as otherwise permissible under the Plan (including, but not limited to, Sections 10, 11 and 13 of the Plan).

(b) All obligations of the Company under the Plan and this Agreement in a Change in Control shall be governed by the Plan and this Agreement, other than as set forth in Section 3(a) above.

(c) By signing this Agreement, the Participant acknowledges that his or her personal employment or Service information regarding participation in the Plan and information necessary to determine and pay, if applicable, benefits under the Plan must be shared with other entities, including companies related to the Company and persons responsible for certain acts in the administration of the Plan. By signing this Agreement, the Participant consents to such transmission of personal data as the Company believes is appropriate to administer the Plan.

(d) To the extent not preempted by federal law, this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to its principles of conflict of laws.

21. Acceptance of Terms and Conditions . By accepting the terms and conditions of this Agreement, the Participant agrees to abide by all of the governing terms and provisions of the Plan and this Agreement. Additionally, the Participant acknowledges having read and understood the terms and conditions of the Plan and this Agreement and has had an opportunity to obtain the advice of counsel prior to accepting this Agreement. The Participant must acknowledge his or her agreement to abide by the terms and conditions of the Plan and Agreement by executing this Agreement electronically or, if otherwise instructed by the

 

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2011 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for U.S. Participants

 

Company, by printing and signing a paper copy of this Agreement and returning it to the appropriate Company representative. In addition, the transfer or sale of the shares obtained at vesting by the Participant shall be considered an additional acknowledgment of the terms and conditions contained in the Plan and Agreement.

*    *    *    *    *

PARTICIPANT SIGNATURE

PRINTED NAME

DATE

 

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LAM RESEARCH CORPORATION

Market-Based Performance Restricted Stock Unit Award Agreement

EXHIBIT A

Participant (Name & Employee Number):

Grant Date:

Target Number of mPRSUs :

Performance Vesting Date: February [    ], 201[X + 1]

Payout Range: 0% to 150% of Target Number of mPRSUs

Performance Period: January 1, 201[  ] to December 31, 201[X]

Performance Criteria:

 

    Index

 

    Vesting Formula

Target Number of mPRSUs x (100% + ((LRCX TSR % – Index TSR %) x 2)) = mPRSUs vested (subject to the maximum in the Payout Range)

 

    Target Number of mPRSUs is vested if the LRCX TSR % equals the Index TSR %

 

    Number of mPRSUs vested increases by 2% of target for each 1% that the LRCX TSR % exceeds the Index TSR %

 

    Number of mPRSUs vested decreases by 2% of target for each 1% that the LRCX TSR % trails the Index TSR %

 

    The result of the Vesting Formula is rounded down to the nearest whole number

 

    LRCX TSR %

(LRCX 50-trading day average closing price as of the last trading day of the Performance Period – LRCX 50-trading day average closing price on the trading day immediately prior to the beginning of the Performance Period) ÷ (LRCX 50-trading day average closing price on the trading day immediately prior to the beginning of the Performance Period) x 100

 

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    Index TSR %

(Index 50-trading day average closing price as of the last trading day of the Performance Period – Index 50-trading day average closing price on the trading day immediately prior to the beginning of the Performance Period) ÷ (Index 50-trading day average closing price on the trading day immediately prior to the beginning of the Performance Period) x 100

 

    Notes:

 

    The LRCX TSR % calculation excludes any dividends paid on the Company’s common stock.

 

    All Index TSR % calculations are based on the companies traded on the Index as of the applicable dates

 

    E.g., The Index is used as of the applicable dates even if companies are added / removed from the Index during the Performance Period.

 

    The Company’s relative performance is determined using calculations based on the 50-trading day average closing price methodology for all TSR calculations.

 

    In the event of a Change in Control, the closing price of the Company’s common stock as of the closing date of the Change in Control is used to convert the sum of the “performance pro rata” and “target pro rata” number of Shares into the Cash Award.

 

    If the Index is no longer traded / calculated, the Company’s relative performance is determined using calculations based on the companies included in the Index at the time trading / calculation last occurred. The Compensation Committee will calculate the Index TSR % in the manner that most closely approximates the Index in its sole discretion.

Leave of Absence: 31st day (or 91st day if reemployment guaranteed by statute or contract)

 

Page 11 of 11

Exhibit 10.13

LAM RESEARCH CORPORATION (Novellus Systems, Inc.)

2011 Stock Incentive Plan (As Amended)

Market-Based Performance Restricted Stock Unit Award Agreement

(International Participants)

Pursuant to the terms of the 2011 Stock Incentive Plan (As Amended) (the “Plan”) Lam Research Corporation, a Delaware corporation (the “Company”), hereby awards market-based performance restricted stock units (“mPRSUs”) to the Participant on the terms and conditions as set forth in this Market-Based Performance Restricted Stock Unit Award Agreement (including the attached Exhibit) (the “Agreement”) and the Plan. Capitalized terms used but not defined in this Agreement shall have the meaning specified in the Plan. This Agreement is effective as of the Grant Date.

NOW, THEREFORE , it is hereby agreed as follows:

1. Award of mPRSUs . Subject to the terms and conditions of this Agreement and the Plan (the terms of which are incorporated herein by reference) and effective as of the date set forth above, the Company hereby grants to the Participant a Target Number of mPRSUs as set forth in the Exhibit. Subject to the Company’s attainment of the relative performance set forth in the attached Exhibit (the “Performance Criteria”), the Participant may vest in the mPRSUs in a designated Payout Range as set forth in the Exhibit. The mPRSUs represent an unfunded, unsecured promise by the Company to deliver Shares subject to the terms and conditions of this Agreement.

2. Vesting .

(a) Subject to the terms and conditions of this Agreement, the mPRSUs shall vest and become payable in Shares on the Performance Vesting Date set forth in the attached Exhibit. The number of mPRSUs that vest shall be determined by the Company’s performance under the Vesting Formula during the Performance Period, as set forth in the attached Exhibit. Except as otherwise provided herein, the Participant’s right to receive Shares subject to the mPRSUs is contingent upon the Participant continuing to provide Service (as defined in Section 3 below) to the Company (or any Related Entity) through the Performance Vesting Date.

(b) Notwithstanding the provisions above, in the event of a Change in Control of the Company prior to the end of the Performance Period in Section 2(a), a portion of the mPRSUs shall convert into a cash award (the “Cash Award”). The number of mPRSUs that convert into a Cash Award shall be the sum of the “performance pro rata” number of Shares and the “target pro rata” number of Shares. This sum shall be multiplied by the closing price of the Company’s common stock as of the closing date of the Change in Control to determine the dollar amount of the Cash Award. The Cash Award will vest on the Performance Vesting Date, contingent upon the Participant continuing to provide Service (as defined in Section 3 below) to the Company (or any Affiliate) through the Performance Vesting Date. Any remaining portion of the mPRSUs that are not converted into a Cash Award shall be cancelled.

(i) Performance Pro Rata . The Target Number of mPRSUs (as set forth in the attached Exhibit) shall be multiplied by the total number of days from the Grant Date until the closing date of the Change in Control divided by the number of days in the Performance

 

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2011 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

Period (“Elapsed Target Shares”). The Company’s performance under the Vesting Formula (as set forth in the attached Exhibit) from the first day of the Performance Period until the closing date of the Change in Control shall be applied to the Elapsed Target Shares to determine the “performance pro rata” number of Shares.

(ii) Target Pro Rata . The Target Number of mPRSUs (as set forth in the attached Exhibit) shall be multiplied by the total number of days from the day following the closing date of the Change in Control until the last day of the Performance Period divided by the number of days in the Performance Period to determine the “target pro rata” number of Shares.

3. Effect of Termination of Service or Leave of Absence .

(a) For purposes of this Agreement, “Service” shall mean the performance of services for the Company (or any Related Entity) in the capacity of an Employee and shall be considered terminated on the last day the Participant is on payroll. In the event of termination of the Participant’s Service by the Participant or by the Company or a Related Entity for any reason, excluding Participant’s death or Disability before the mPRSUs have vested, the unvested mPRSUs shall be cancelled by the Company (subject to the terms of any applicable Employment or Change in Control Agreement).

(b) In the event of termination of the Participant’s Service due to death, a portion of the mPRSUs granted to the Participant shall vest on the date of death. To determine the applicable number of Shares, the Target Number of mPRSUs (as set forth in the attached Exhibit) shall be multiplied by the total number of days from the Grant Date until the date of death, divided by the number of days in the Performance Period to determine the “death pro rata” target number of Shares. The Company’s performance under the Vesting Formula (as set forth in the attached Exhibit) from the first day of the Performance Period until the date of death shall be applied to the greater of: (i) the “death pro rata” target number of Shares or (ii) 50% of the original Target Number of mPRSUs (as set forth in the attached Exhibit), to determine the number of Shares which shall vest on the date of death (the “Death Vesting Date”). Any remaining unvested portion of the mPRSUs shall be cancelled.

(c) In the event of termination of the Participant’s Service due to Disability, a portion of the mPRSUs granted to the Participant shall vest on the date the Disability is incurred. To determine the applicable number of Shares, the Target Number of mPRSUs (as set forth in the attached Exhibit) shall be multiplied by the total number of days from the Grant Date until the date the Disability is incurred, divided by the number of days in the Performance Period to determine the “disability pro rata” target number of Shares. The Company’s performance under the Vesting Formula (as set forth in the attached Exhibit) from the first day of the Performance Period until the date the Disability is incurred shall be applied to the greater of: (i) the “disability pro rata” target number of Shares or (ii) 50% of the original Target Number of mPRSUs (as set forth in the attached Exhibit) to determine the number of Shares which shall vest on the date the Disability is incurred (the “Disability Vesting Date”, and collectively with “Performance Vesting Date”, and the “Death Vesting Date”, the “Vesting Date”). Any remaining unvested portion of the mPRSUs shall be cancelled.

(d) Vesting of the mPRSUs will be suspended and vesting credit will no longer accrue as of the day of the Leave of Absence as set forth in Exhibit A, unless otherwise determined by the Administrator or required by contract, statute or applicable local law. If the

 

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2011 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

Participant returns to Service immediately after the end of an approved Leave of Absence, vesting credit shall continue to accrue from that date of continued Service.

4. Form and Timing of Payment .

(a) Subject to Section 5 of this Agreement and provided that the Participant has satisfied the vesting requirements of Section 2 or 3 of this Agreement, on each Vesting Date, as applicable, the mPRSUs shall automatically be converted into unrestricted Shares. Such Shares will be issued to the Participant (as evidenced by the appropriate entry in the books of the Company or a duly authorized transfer agent of the Company) on the applicable Vesting Date (or as soon as practicable) , but in any event, within the period ending on the later to occur of the date that is 2  1 2 months after the end of (i) the Participant’s tax year that includes the applicable Vesting Date, or (ii) the Company’s tax year that includes the applicable Vesting Date.

(b) Shares issued in respect of mPRSUs shall be deemed to be issued in consideration of past services actually rendered by the Participant to the Company or a Related Entity or for its benefit for which the Participant has not previously been compensated or for future services to be rendered, as the case may be, which the Company deems to have a value at least equal to the aggregate par value of the Shares subject to the mPRSUs.

5. Tax Withholding Obligations . Regardless of any action the Company or the Participant’s employer (the “Employer”) takes with respect to any or all income tax (including federal, state and local taxes), social insurance, payroll tax, payment on account or other tax-related withholding (“Tax-Related Items”), the Participant acknowledges that the ultimate liability for all Tax-Related Items legally due by the Participant is and remains the Participant’s responsibility and that the Company and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the mPRSUs, including the grant of the mPRSUs, the vesting of the mPRSUs, or the receipt of an equivalent cash payment, the subsequent sale of any Shares acquired at vesting and the receipt of any dividends; and (ii) do not commit to structure the terms of the grant or any aspect of the mPRSUs to reduce or eliminate the Participant’s liability for Tax-Related Items or achieve any particular tax result.

Prior to the issuance of Shares upon vesting of the mPRSUs (or any other tax or withholding event), the Participant shall pay, or make arrangements satisfactory to the Company (in the Company’s sole discretion) to satisfy all withholding (and payment on account, where applicable) obligations. In those cases where a prior arrangement has not been made (or where the amount of money provided under the prior arrangement is insufficient to satisfy the obligations for Tax-Related Items), the Company shall withhold a number of whole Shares otherwise deliverable at vesting having a Fair Market Value sufficient to satisfy the statutory minimum (or such higher amount as is allowable without adverse accounting consequences) of the Participant’s estimated obligations for Tax-Related Items applicable to the mPRSUs; such withholding will result in the issuance to the participant of a lower number of Shares.

The Company and/or the Employer may also, in lieu of or in addition to the foregoing, at the Company’s sole discretion as authorized herein by the Participant, withhold all applicable Tax-Related Items legally payable by the Participant from the Participant’s wages or other cash

 

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2011 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

compensation or to withhold in one of the following ways, as determined by the Company: (i) require the Participant to deposit with the Company an amount of cash sufficient to meet his or her obligation for Tax-Related Items, and/or (ii) sell or arrange for the sale of Shares to be issued on the vesting of the mPRSUs to satisfy the withholding (or payment on account, when applicable) obligation. If the Participant’s obligation for Tax-Related Items is satisfied as described in (ii) of this section, the Company will endeavor to sell only the number of Shares required to satisfy the Participant’s obligations for Tax-Related Items; however, the Participant agrees that the Company may sell more Shares than necessary to cover the Tax-Related Items and that in such event, the Company will reimburse the Participant for the excess amount withheld, in cash and without interest. The Participant shall pay to the Employer any amount of Tax-Related Items that the Employer may be required to withhold as a result of the Participant’s receipt of the mPRSUs, the vesting of the mPRSUs that cannot be satisfied by the means previously described. The Company may refuse to deliver Shares to the Participant if the Participant fails to comply with his or her obligation in connection with the Tax-Related Items as described herein. The Participant hereby consents to any action reasonably taken by the Company and/or the Employer to meet his or her obligation for Tax-Related Items.

Further, in consideration of the grant of the mPRSUs, no claim or entitlement to compensation or damages arises if, in satisfying the Participant’s (and/or the Employer’s) obligation for Tax-Related Items, the Company and/or the Employer withholds an amount in excess of the amount legally required to be withheld, the Participant irrevocably releases the Company and the Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Agreement, the Participant shall be deemed irrevocably to have waived his or her entitlement to pursue such claim or damages.

6. Restriction on Transferability . Prior to vesting and delivery of the Shares, neither the mPRSUs, nor the Shares or any beneficial interest therein, may be sold, transferred, pledged, assigned, or otherwise alienated at any time. Any attempt to do so contrary to the provisions hereof shall be null and void. Notwithstanding the above, distribution can be made pursuant to will, the laws of descent and distribution, and if provided by the Administrator, intra-family transfer instruments, or to an inter vivos trust, or as otherwise provided by the Administrator. The terms of this Agreement shall be binding upon the executors, administrators, heirs, successors and assigns of the Participant.

7. Requirements of Law . The issuance of Shares upon vesting of the mPRSUs is subject to Sections 9 and 14(b) of the Plan, which generally provides that any such issuance shall be subject to compliance by the Company and the Participant with all applicable requirements of law relating thereto and with all applicable regulations of any stock exchange on which the Shares may be listed for trading at the time of such issuance. The inability of the Company to obtain approval from any regulatory body having authority deemed by the Company to be necessary to the lawful issuance of any Shares hereby shall relieve the Company of any liability with respect to the non-issuance of the Shares as to which such approval shall not have been obtained. The Company, however, shall use its reasonable efforts to obtain all such approvals.

8. Rights as Stockholder . The Participant shall not have voting, dividend or any other rights as a stockholder of the Company with respect to the mPRSUs. Upon settlement of

 

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2011 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

the Participant’s mPRSUs into Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), the Participant will obtain full voting, dividend and other rights as a stockholder of the Company.

9. No Compensation Deferrals . Neither the Plan nor this Agreement is intended to provide for an elective deferral of compensation that would be subject to Section 409A (“Section 409A”) of the Internal Revenue Code of 1986, as amended (the “Code”). If, notwithstanding the parties’ intent in this regard, at the time of the Participant’s termination of Service, he or she is determined to be a “specified employee” as defined in Code Section 409A, and one or more of the payments or benefits received or to be received by the Participant pursuant to the mPRSUs would constitute deferred compensation subject to Code Section 409A, no such payment or benefit will be provided under the mPRSUs until the earliest of (A) the date which is six (6) months after the Participant’s “separation from service” for any reason, other than death or “disability” (as such terms are used in Section 409A(a)(2) of the Code), (B) the date of the Participant’s death or “disability” (as such term is used in Section 409A(a)(2)(C) of the Code), or (C) the effective date of a “change in the ownership or effective control” or a “change in ownership of a substantial portion of the assets” of the Company (as such terms are used in Section 409A(a)(2)(A)(v) of the Code). The provisions of this Section 9 shall only apply to the extent required to avoid the Participant’s incurrence of any additional tax or interest under Code Section 409A or any regulations or U.S. Department of the Treasury (“Treasury”) guidance promulgated thereunder. In addition, if any provision of the mPRSUs would cause the Participant to incur any additional tax or interest under Code Section 409A or any regulations or Treasury guidance promulgated thereunder, the Company reserves the right, to the extent the Company deems necessary or advisable in its sole discretion, to unilaterally amend or modify the Plan and/or this Agreement to conform it to the maximum extent practicable to the original intent of the applicable provision without violating the provisions of Code Section 409A, including without limitation to limit payment or distribution of any amount of benefit hereunder in connection with a Change in Control to a transaction meeting the definitions referred to in clause (C) above, or in connection with any disability to a “disability” as referred to in (B) above; provided however that the Company makes no representation that these Performance Restricted Stock Units are not subject to Section 409A nor makes any undertaking to preclude Section 409A from applying to these mPRSUs. In addition, to the extent the Company determines it appropriate to accelerate any vesting conditions applicable to this award, then to the extent necessary to avoid the Participant’s incurring any additional tax or interest as a result of such vesting acceleration under Code Section 409A or any regulations or Treasury guidance promulgated thereunder, and notwithstanding Section 4 above, the Company may as a condition to extending such acceleration benefits provide for the Shares to be issued upon settlement of the mPRSUs to be issued on the earliest date (the “Permitted Distribution Date”) that would obviate application of such additional tax or interest rather than issuing them upon the date on which such vesting is effective as would otherwise be required under Section 2 (or as soon as practicable after such Permitted Distribution Date and in no event later than that last day of the grace period following such date permitted under Code Section 409A).

10. Administration . The Administrator shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation, and application of the Plan as are consistent therewith and to interpret or revoke any such rules. All actions taken and all interpretations and determinations made by the Administrator shall be final and binding

 

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2011 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

upon the Participant, the Company, and all other interested persons. No Administrator shall be personally liable for any action, determination, or interpretation made in good faith with respect to the Plan or this Agreement.

11. Effect on Other Employee Benefit Plans . The value of the mPRSUs granted pursuant to this Agreement shall not be included as compensation, earnings, salaries, or other similar terms used when calculating the Participant’s benefits under any employee benefit plan sponsored by the Company or any Related Entity, except as such plan otherwise expressly provides. The Company expressly reserves its rights to amend, modify, or terminate any of the Company’s or any Related Entity’s employee benefit plans.

12. No Employment Rights . The award of the mPRSUs pursuant to this Agreement shall not give the Participant any right to continued Service with the Company or a Related Entity and shall not interfere with the ability of the Employer to terminate the Participant’s Service with the Company at any time with or without cause.

13. Nature of the Grant . In accepting the mPRSUs, the Participant acknowledges that:

(a) the Plan is established voluntarily by the Company, it is discretionary in nature and may be modified, amended, suspended or terminated by the Company at any time, unless otherwise provided in the Plan and this Agreement;

(b) the grant of mPRSUs is voluntary and occasional and does not create any contractual or other right to receive future awards of mPRSUs, or benefits in lieu of mPRSUs even if mPRSUs have been awarded repeatedly in the past;

(c) all decisions with respect to future grants of mPRSUs, if any, will be at the sole discretion of the Company;

(d) the Participant’s participation in the Plan is voluntary;

(e) the mPRSUs are outside the scope of the Participant’s employment contract, if any;

(f) the mPRSUs are not part of normal or expected compensation or salary for any purpose, including, but not limited to, calculation of any overtime, severance, resignation, termination, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments;

(g) in the event that the Participant is not an employee of the Company, the grant of the mPRSUs will not be interpreted to form an employment contract or relationship with the Company; and furthermore, the grant of the mPRSUs will not be interpreted to form an employment contract with the Employer or any Related Entity;

(h) the future value of the underlying Shares is unknown and cannot be predicted with certainty;

 

Page 6 of 17


2011 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

(i) if the Participant receives Shares upon vesting of the mPRSUs, the value of such Shares may increase or decrease in value;

(j) in consideration of the grant of the mPRSUs, no claim or entitlement to compensation or damages arises from termination of the mPRSUs or diminution in value of the mPRSUs received upon vesting of mPRSUs resulting from termination of the Participant’s Service to the Company or the Employer (for any reason whatsoever and whether or not in breach of local labor laws) and the Participant irrevocably releases the Company and the Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Agreement, the Participant shall be deemed irrevocably to have waived his or her entitlement to pursue such claim.

14. Data Privacy Notice and Consent . The Participant hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of his or her personal data as described in this Agreement by and among, as applicable, the Employer, the Company and its Related Entities for the exclusive purpose of implementing, administering and managing the Participant’s participation in the Plan.

The Participant understands that the Company and the Employer may hold certain personal information about the Participant, including, but not limited to, the Participant’s name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in the Company, details of all mPRSUs or any other entitlement to shares awarded, canceled, vested, unvested or outstanding in the Participant’s favor, for the purpose of implementing, administering and managing the Plan (“Data”).

The Participant understands that Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in the Participant’s country, or elsewhere, and that the recipient’s country may have different data privacy laws and protections than the Participant’s country. The Participant understands that the Participant may request a list with the names and addresses of any potential recipients of the Data by contacting his or her local human resources representative. The Participant authorizes the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing his or her participation in the Plan, including any requisite transfer of such Data as may be required to a broker, escrow agent or other third party with whom the shares received upon vesting of the mPRSUs may be deposited. The Participant understands that Data will be held only as long as is necessary to implement, administer and manage his or her participation in the Plan. The Participant understands that he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing his or her local human resources representative. The Participant understands, however, that refusal or withdrawal of consent may affect his or her ability to participate in the Plan. For more information on the consequences of his or her refusal to consent or withdrawal of consent, the Participant understands that he or she may contact his or her local human resources representative.

 

Page 7 of 17


2011 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

15. Amendment of Agreement . This Agreement may be amended only by a writing which specifically states that it amends this Agreement. Notwithstanding the foregoing, this Agreement may be amended unilaterally by the Committee by a writing which specifically states that it is amending this Agreement, so long as a copy of such amendment is delivered to the Participant, and provided that no such amendment adversely affects the rights of the Participant. Limiting the foregoing, the Committee reserves the right to change, by written notice to the Participant, the provisions of the mPRSUs or this Agreement in any way it may deem necessary or advisable to carry out the purpose of the grant as a result of any change in applicable laws or regulations or any future law, regulation, ruling, or judicial decision, or, to the extent permissible under the Plan (including, but not limited to, Sections 10, 11 and 13 of the Plan).

16. Notices . Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of its Administrator. Any notice to be given to the Participant shall be addressed to the Participant at the address listed in the Employer’s records. By a notice given pursuant to this Section, either party may designate a different address for notices. Any notice shall have been deemed given when actually delivered.

17. Severability . The provisions of this Agreement are severable and if all or any part of this Agreement or the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity shall not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid. Any Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid shall, if possible, be construed in a manner which will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful and valid.

18. Construction . The mPRSUs are being issued pursuant to the Plan and are subject to the terms of the Plan. A copy of the Plan is available upon request during normal business hours at the principal executive offices of the Company. To the extent that any provision of this Agreement violates or is inconsistent with a provision of the Plan, the Plan provision shall govern and any inconsistent provision in this Agreement shall be of no force or effect.

19. Electronic Delivery . The Company may, in its sole discretion, decide to deliver any documents related to the mPRSUs granted under the Plan and participation in the Plan or future mPRSUs that may be granted under the Plan by electronic means or to request the Participant’s consent to participate in the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery and, if requested, to agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.

20. Entire Agreement . The Plan is incorporated herein by reference. The Plan and this Agreement constitute the entire agreement of the Company and the Participant with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Participant with respect to the subject matter hereof.

21. Language . If the Participant has received this Agreement or any other document related to the Plan translated into a language other than English and if the translated version is different than the English version, the English version will control.

 

Page 8 of 17


2011 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

22. Miscellaneous .

(a) The Company has established the Plan voluntarily, it is discretionary in nature and the Board may terminate, amend, or modify the Plan at any time; provided, however, that no such termination, amendment, or modification of the Plan may in any way adversely affect the Participant’s rights under this Agreement, without the Participant’s written approval unless such termination, amendment, or modification of the Plan is necessary in order to comply with any change in applicable laws or regulations or any future law, regulation, ruling, or judicial decision or as otherwise permissible under the Plan (including, but not limited to, Sections 10, 11 and 13 of the Plan).

(b) All obligations of the Company under the Plan and this Agreement in a Change in Control shall be governed by the Plan and this Agreement, other than as set forth in Section 3(a) above.

(c) To the extent not preempted by United States federal law, this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to its principles of conflict of laws.

23. Country Specific Terms . Appendix A contains additional terms and conditions of the Agreement applicable to Participants residing in those countries. In addition, Appendix A also contains information and notices of exchange control and certain other issues of which the Participant should be aware.

24. Acceptance of Terms and Conditions . By accepting the terms and conditions of this Agreement, the Participant agrees to abide by all of the governing terms and provisions of the Plan and this Agreement. Additionally, the Participant acknowledges having read and understood the terms and conditions of the Plan and this Agreement and has had an opportunity to obtain the advice of counsel prior to accepting this Agreement. The Participant must acknowledge his or her agreement to abide by the terms and conditions of the Plan and Agreement by executing this Agreement electronically or, if otherwise instructed by the Company, by printing and signing a paper copy of this Agreement and returning it to the appropriate Company representative. In addition, the transfer or sale of the shares obtained at vesting by the Participant shall be considered an additional acknowledgment of the terms and conditions contained in the Plan and Agreement.

*    *    *    *    *

 

Page 9 of 17


2011 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

PARTICIPANT SIGNATURE

PRINTED NAME

DATE

 

Page 10 of 17


2011 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

APPENDIX A

TERMS AND CONDITIONS

This Appendix A, which is part of the Agreement, contains additional terms and conditions of the Agreement that will apply to the Participant if he or she resides in one of the countries listed below. Capitalized terms used but not defined herein shall have the same meanings assigned to them in the Plan and/or the Agreement.

NOTIFICATIONS

This Appendix A also includes information regarding exchange control and certain other issues of which the Participant should be aware with respect to his or her participation in the Plan. The information is based on the securities, exchange control and other laws in effect in the respective countries as of November 2013. Such laws are often complex and change frequently. The Company therefore strongly recommends that the Participant not rely on the information as the only source of information relating to the consequences of his or her participation in the Plan because such information may be outdated when the Participant vests in the mPRSUs and/or sells any Shares acquired pursuant to the mPRSUs.

AUSTRIA

Exchange Control Information . If the Participant holds Shares acquired under the Plan outside of Austria, the Participant must submit a report to the Austrian National Bank. An exemption applies if the value of the Shares as of any given quarter does not exceed €30,000,000 or as of December 31 does not exceed €5,000,000. If the former threshold is exceeded, quarterly obligations are imposed; whereas, if the latter threshold is exceeded, annual reports must be provided. The annual reporting date is December 31 and the deadline for filing the annual report is March 31 of the following year.

When the Participant sells Shares acquired under the Plan, there may be exchange control obligations if the cash proceeds are held outside of Austria. If the transaction volume of all accounts abroad exceeds €3,000,000 the movements and balances of all accounts must be reported monthly, as of the last day of the month, on or before the fifteenth day of the following month.

BELGIUM

Tax Reporting Information. You are required to report any bank accounts opened and maintained outside Belgium on your annual tax return.

 

Page 11 of 17


2011 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

CHINA (PRC)

Exchange Control Restrictions. The Participant agrees to comply with any requirements that may be imposed by the Company in the future in order to facilitate compliance with exchange control requirements in China. These requirements may include, but are not limited to, immediate repatriation to China of the sale proceeds, an immediate sale of the mPRSUs at vesting, and/or repatriation of the cash proceeds through a special exchange control account.

FRANCE

Exchange Control Information.  If the Participant imports or exports cash ( e.g. , sales proceeds received under the Plan) with a value equal to or exceeding €7,600 and does not use a financial institution to do so, he or she must submit a report to the customs and excise authorities. If the Participant maintains a foreign bank account, he or she is required to report such account to the French tax authorities when filing his or her annual tax return.

GERMANY

Exchange Control Information.  Cross-border payments in excess of €12,500 must be reported monthly to the German Federal Bank. If the Participant uses a German bank to transfer a cross-border payment in excess of €12,500 under the Plan, the bank will make the report for the Participant.

IRELAND

Director Notification Requirement . If the Participant is a director, shadow director or secretary of an Irish Subsidiary or Related Entity of the Company, pursuant to Section 53 of the Irish Company Act 1990, he or she must notify the Irish Subsidiary or Related Entity of the Company in writing within five (5) business days of receiving or disposing of an interest in the Company ( e.g. , mPRSUs, Shares, etc.), or within five (5) business days of becoming aware of the event giving rise to the notification requirement, or within five (5) days of becoming a director, shadow director or secretary if such an interest exists at that time. This notification requirement also applies with respect to the interests of a spouse or minor child, whose interests will be attributed to the director, shadow director or secretary.

ISRAEL

No additional provisions apply.

ITALY

Plan Document Acknowledgment. By accepting the terms and conditions of the mPRSUs, the Participant acknowledges that he or she has received a copy of the Plan and the Agreement and has reviewed the Plan and the Agreement, including this Appendix A, in their entirety and fully understands and accepts all provisions of the Plan and the Agreement.

Data Privacy. In addition to the data privacy provision that is set forth in the Agreement, the Participant also consents to the following additional data privacy-related terms:

 

Page 12 of 17


2011 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

I am aware that providing the Company and my Employer with Data is necessary for participation in the Plan and that my refusal to provide such Data may affect my ability to participate in the Plan. The Controller of personal data processing is the Company with registered offices at 4650 Cushing Parkway, Fremont, California, 94538, United States and, pursuant to D.lgs 196/2003, its representatives in Italy are Lam Research S.r.l., with registered offices in Centro Direzionale Colleoni, Palazzo Sirio 3-Ing, 20041 Agrate Brianza-MI, Italy.

I understand that I may at any time exercise the rights acknowledged by Section 7 of Legislative Decree June 30, 2003 n.196, including, but not limited to, the right to access, delete, update, request the rectification of my Data and cease, for legitimate reasons, the data processing. Furthermore, I am aware that my Data will not be used for direct marketing purposes.

Exchange Control Information. Participant is responsible for all reporting requirements regarding (i) any transfers of cash or shares to or from Italy and (ii) any foreign investments or investments (including proceeds from the sale of Shares) held outside of Italy.

JAPAN

Exchange Control Information. If the Participant acquired Shares valued at more than ¥100,000,000 in a single transaction, the Participant must file a Securities Acquisition Report with the Ministry of Finance through the Bank of Japan within 20 days of the purchase of Shares.

KOREA

Exchange Control Information. If the Participant receives US$500,000 or more from the sale of Shares, Korean exchange control laws require the Participant to repatriate the proceeds to Korea within 18 months of the sale.

MALAYSIA

Director Notification Requirement . If the Participant is a Director of the local Subsidiary, he or she must notify the local Subsidiary of the grant and also provide notice of any change in his or her interest in the mPRSUs ( e.g. vesting or the sale of Shares).

Exchange Control Information. Because exchange control regulations change frequently and without notice, you should consult your legal advisor before selling shares to ensure compliance with current regulations. It is Participant’s responsibility to comply with exchange control laws in Malaysia, and neither the Company nor your employer will be liable for any fines or penalties resulting from a failure to comply with applicable laws. For purposes of compiling balance of payment statistics on the inflow and outflow of funds from Malaysia, the Bank Negara Malaysia must be notified of any remittance of funds between residents and non-residents of an amount equal to RM200,001 or greater from Malaysia.

NETHERLANDS

Insider-Trading Notification. The Participant should be aware of the Dutch insider-trading rules, which may impact the sale of Shares acquired at vesting of the mPRSUs. In particular, the Participant may be prohibited from effectuating certain transactions involving Shares if the

 

Page 13 of 17


2011 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

Participant has inside information about the Company. If the Participant is uncertain whether the insider-trading rules apply to him or her, the Participant should consult his or her personal legal advisor. By accepting the Agreement and participating in the Plan, the Participant acknowledges having read and understood this notification and acknowledges that it is the Participant’s responsibility to comply with the following Dutch insider-trading rules.

SINGAPORE

Director Notification Obligation. If the Participant is a director, associate director or shadow director of a Singaporean Subsidiary or Related Entity of the company, the Participant is subject to certain notification requirements under the Singapore Companies Act. Among these requirements is an obligation to notify the Singaporean Subsidiary or Related Entity of the Company in writing when the Participant receives an interest ( e.g. , mPRSUs or Shares) in the Company or any Subsidiary or Related Entity of the Company. In addition, the Participant must notify the Singaporean Subsidiary or Related Entity of the Company when the Participant sells Shares or shares of any Subsidiary or Related Entity of the Company (including when the Participant sells Shares acquired at vesting of the mPRSUs). These notifications must be made within two (2) days of acquiring or disposing of any interest in the Company or any Subsidiary or Related Entity of the Company. In addition, a notification of the Participant’s interests in the Company or any Subsidiary or Related Entity of the Company must be made within two (2) days of becoming a director.

Tax Information . The Participant may be eligible for certain tax favored schemes applicable to mPRSUs. The participant should consult with his or her tax advisor to determine if these tax favorable schemes apply to his or her situation.

SLOVAKIA

Exchange Control Information . It is the Participant’s obligation to comply with exchange control requirements in the Slovakia Republic, including any notification requirements applicable to opening or maintaining any foreign bank or brokerage accounts.

SLOVENIA

No additional provisions apply.

SWITZERLAND

Securities Law Information. The offer of the mPRSUs is considered a private offering in Switzerland and is therefore not subject to securities registration in Switzerland.

TAIWAN

Exchange Control Information. The Participant may acquire and remit foreign currency (including funds for the purchase of Shares and proceeds from the sale of Shares) up to US$5,000,000 per year without prior approval.

 

Page 14 of 17


2011 Stock Incentive Plan Market-Based Performance Restricted Stock Unit Award Agreement for International Participants

 

If the transaction amount is TWD500,000 or more in a single transaction, the Participant must submit a Foreign Exchange Transaction Form. If the transaction amount is US$500,000 or more in a single transaction, the Participant must also provide supporting documentation to the satisfaction of the remitting bank.

UNITED KINGDOM

Securities Requirement. Due to legal requirements, all mPRSUs at the time of vesting will be settled in Shares.

 

Page 15 of 17


LAM RESEARCH CORPORATION

Market-Based Performance Restricted Stock Unit Award Agreement

EXHIBIT A

Participant (Name & Employee Number):

Grant Date:

Target Number of mPRSUs :

Performance Vesting Date: February [    ], 201[X + 1]

Payout Range: 0% to 150% of Target Number of mPRSUs

Performance Period: January 1, 201[  ] to December 31, 201[X]

Performance Criteria:

 

    Index

 

    Vesting Formula

Target Number of mPRSUs x (100% + ((LRCX TSR % – Index TSR %) x 2)) = mPRSUs vested (subject to the maximum in the Payout Range)

 

    Target Number of mPRSUs is vested if the LRCX TSR % equals the Index TSR %

 

    Number of mPRSUs vested increases by 2% of target for each 1% that the LRCX TSR % exceeds the Index TSR %

 

    Number of mPRSUs vested decreases by 2% of target for each 1% that the LRCX TSR % trails the Index TSR %

 

    The result of the Vesting Formula is rounded down to the nearest whole number

 

    LRCX TSR %

(LRCX 50-trading day average closing price as of the last trading day of the Performance Period – LRCX 50-trading day average closing price on the trading day immediately prior to the beginning of the Performance Period) ÷ (LRCX 50-trading day average closing price on the trading day immediately prior to the beginning of the Performance Period) x 100

 

Page 16 of 17


    Index TSR %

(Index 50-trading day average closing price as of the last trading day of the Performance Period – Index 50-trading day average closing price on the trading day immediately prior to the beginning of the Performance Period) ÷ (Index 50-trading day average closing price on the trading day immediately prior to the beginning of the Performance Period) x 100

 

    Notes:

 

    The LRCX TSR % calculation excludes any dividends paid on the Company’s common stock.

 

    All Index TSR % calculations are based on the companies traded on the Index as of the applicable dates

 

    E.g., The Index is used as of the applicable dates even if companies are added / removed from the Index during the Performance Period.

 

    The Company’s relative performance is determined using calculations based on the 50-trading day average closing price methodology for all TSR calculations.

 

    In the event of a Change in Control, the closing price of the Company’s common stock as of the closing date of the Change in Control is used to convert the sum of the “performance pro rata” and “target pro rata” number of Shares into the Cash Award.

 

    If the Index is no longer traded / calculated, the Company’s relative performance is determined using calculations based on the companies included in the Index at the time trading / calculation last occurred. The Compensation Committee will calculate the Index TSR % in the manner that most closely approximates the Index in its sole discretion.

Leave of Absence: 31st day (or 91st day if reemployment guaranteed by statute or contract)

 

Page 17 of 17

Exhibit 10.14

 

 

PARTICIPATION AGREEMENT

DATED AS OF DECEMBER 31, 2013

BETWEEN

LAM RESEARCH CORPORATION,

AS LESSEE,

AND

BTMU CAPITAL LEASING & FINANCE, INC.,

AS LESSOR

 

 


TABLE OF CONTENTS

 

         Page  

ARTICLE I DEFINITIONS

     2   

SECTION 1.1.

 

Definitions.

     2   

SECTION 1.2.

 

Rules of Interpretation.

     2   

ARTICLE II THE CREDITS

     3   

SECTION 2.1.

 

Equity Investment Commitments.

     3   

SECTION 2.2.

 

Equity Investment.

     3   

SECTION 2.3.

 

Calculation of Rent.

     4   

SECTION 2.4.

 

Interim Yield; Yield.

     4   

SECTION 2.5.

 

Capitalized Yield.

     5   

SECTION 2.6.

 

Fees.

     5   

SECTION 2.7.

 

Computations.

     6   

SECTION 2.8.

 

Determination of Yield Rate and Payment Periods.

     6   

SECTION 2.9.

 

Change of Circumstances.

     7   

SECTION 2.10.

 

Funding Losses.

     11   

SECTION 2.11.

 

Alternate Office.

     11   

SECTION 2.12.

 

Nature of Transaction.

     11   

SECTION 2.13.

 

Amounts Due.

     12   

ARTICLE III CONDITIONS PRECEDENT; ADVANCES

     13   

SECTION 3.1.

 

Closing Date Conditions.

     13   

SECTION 3.2.

 

Condition to Lessee’s Obligations on Closing Date.

     18   

SECTION 3.3.

 

Conditions to Each Advance.

     19   

SECTION 3.4.

 

Fundings Generally.

     23   

SECTION 3.5.

 

Application of Funds.

     26   

SECTION 3.6.

 

Deliveries Upon Completion.

     27   

ARTICLE IV REPRESENTATIONS AND WARRANTIES

     28   

SECTION 4.1.

 

Representations and Warranties of Lessee.

     28   

SECTION 4.2.

 

Representations and Warranties of the Lessor.

     34   

ARTICLE V COVENANTS OF LESSEE

     34   

SECTION 5.1.

 

Financial Reporting.

     34   

SECTION 5.2.

 

Affirmative Covenants of Lessee.

     36   


TABLE OF CONTENTS

(continued)

 

         Page  

SECTION 5.3.

 

Negative Covenants of the Lessee.

     38   

SECTION 5.4.

 

Covenants Related to Leased Property, Overall Transaction.

     40   

ARTICLE VI OTHER COVENANTS; ASSIGNMENTS

     41   

SECTION 6.1.

 

Cooperation with Lessee.

     41   

SECTION 6.2.

 

Covenants of the Lessor.

     41   

SECTION 6.3.

 

Assignments.

     43   

SECTION 6.4.

 

Participations.

     44   

ARTICLE VII INDEMNIFICATION AND ADDITIONAL PAYMENTS

     45   

SECTION 7.1.

 

General Indemnification.

     45   

SECTION 7.2.

 

General Tax Indemnity.

     49   

SECTION 7.3.

 

Withholding Tax Documentation.

     55   

SECTION 7.4.

 

Gross Up.

     57   

SECTION 7.5.

 

Leased Property Indemnity.

     57   

ARTICLE VIII MISCELLANEOUS

     58   

SECTION 8.1.

 

Survival of Indemnities.

     58   

SECTION 8.2.

 

No Broker, etc.

     58   

SECTION 8.3.

 

Notices.

     58   

SECTION 8.4.

 

Counterparts.

     58   

SECTION 8.5.

 

Amendments.

     59   

SECTION 8.6.

 

Headings, etc.

     59   

SECTION 8.7.

 

Parties in Interest.

     59   

SECTION 8.8.

 

Governing Law.

     59   

SECTION 8.9.

 

Payment of Transaction Costs and Other Costs.

     59   

SECTION 8.10.

 

Severability.

     60   

SECTION 8.11.

 

Limited Liability.

     60   

SECTION 8.12.

 

Submission to Jurisdiction; Waivers.

     60   

SECTION 8.13.

 

Reproduction of Documents.

     61   

SECTION 8.14.

 

Role of Arranger.

     61   

SECTION 8.15.

 

Payments in Dollars.

     62   

 

ii


TABLE OF CONTENTS

(continued)

 

         Page  

SECTION 8.16.

 

Confidentiality.

     62   

SECTION 8.17.

 

Entire Agreement.

     62   

SECTION 8.18.

 

UCC Filings and Other Matters.

     62   

 

Appendix I    Common Definitions
Schedule I    Equity Investment
Schedule II    Addresses For Notice; Wire Instructions
Schedule III    [Intentionally Omitted]
Schedule IV    Description of Site Owned by Lessee
Exhibit A    Form of Advance Request

 

iii


PARTICIPATION AGREEMENT

THIS PARTICIPATION AGREEMENT, dated as of December 31, 2013 (this “Agreement” ), is made between LAM RESEARCH CORPORATION, a Delaware corporation, as Lessee (the “Lessee” ), and BTMU CAPITAL LEASING & FINANCE, INC., a Delaware corporation, as Lessor (the “Lessor” ).

PRELIMINARY STATEMENT

A. The Lessee leases each Site and Existing Improvements from the Existing Lessor pursuant to the Existing Operative Documents.

B. The Lessee and the Lessor desire to (i) have the Existing Lessor convey each Site and Existing Improvement thereon to the Lessor subject to the Existing Leases pursuant to the Sale Closing Documents, (ii) amend and restate the Existing Leases and continue to lease each Site and Existing Improvements thereon pursuant to the respective Leases, and (iii) enter into the Overall Transaction.

C. Lessor will fund such acquisition of the Sites and Existing Improvements thereon with the proceeds of an Advance on the Closing Date subject to the terms and conditions set forth herein.

D. The Lessor desires to appoint the Lessee as its Constructor and construct the New Improvements (Fremont 3E) on the Unimproved Land and, upon Completion, to lease to Lessee the New Improvements (Fremont 3E) pursuant to Lease Fremont 3E.

E. Subject to the terms and conditions of this Agreement and the other Operative Documents, as of the Closing Date:

 

  (i) the Lessor and the Constructor will enter into the Construction Agency Agreement pursuant to which the Constructor will act as agent for the Lessor and will construct the New Improvements (Fremont 3E) on the Unimproved Land;

 

  (ii) with respect to each Site, the Lessor and the Lessee will enter into a Lease pursuant to which the Lessor will lease each Site and the Existing Improvements or New Improvements (Fremont 3E) thereon, as applicable, to the Lessee; and

 

  (iii)

the Lessee and the Lessor will enter into a Memorandum of Lease for each Site pursuant to which (x) notice of the leasing of such Site and the Existing Improvements or New Improvements (Fremont 3E) thereon, as applicable, to the Lessee will be publicized, (y) the Lessee will grant the Lessor a Lien on and a security interest in its interest in


  such Site and the Existing Improvements or New Improvements (Fremont 3E) thereon, as applicable, to secure its obligations under the Operative Documents, and (z) the Lessor will grant the Lessee a Lien on and a security interest in its interest in such Site and the Existing Improvements or New Improvements (Fremont 3E) thereon, as applicable, to secure its conveyance of such interests to Lessee under certain circumstances.

F. During the Construction Period with respect to the New Improvements (Fremont 3E):

 

  (i) the Lessor will, pursuant to the terms of this Agreement, undertake to fund Advances to the Constructor or its designee on the Advance Date specified in any Advance Request in an aggregate amount not to exceed the Lessor’s Commitment;

 

  (ii) Constructor, using Advances funded by the Lessor from the Equity Investment, will construct the New Improvements (Fremont 3E) on the Unimproved Land pursuant to the Construction Agency Agreement; and

 

  (iii) notwithstanding the effectiveness of certain covenants and terms of Lease Fremont 3E during such period, the Lessee will not be required to begin to make scheduled payments of Basic Rent under such Leases until the Base Term Commencement Date.

NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

ARTICLE I

DEFINITIONS

SECTION 1.1. Definitions . Unless the context shall otherwise require, capitalized terms used and not defined herein shall have the meanings assigned thereto in the Common Definitions attached hereto as Appendix I for all purposes hereof.

SECTION 1.2. Rules of Interpretation. Except as otherwise expressly provided, the rules of interpretation set forth in the Common Definitions attached hereto as Appendix I shall apply to this Agreement and the other Operative Documents.

 

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ARTICLE II

THE CREDITS

SECTION 2.1. Equity Investment Commitments.

Subject to the terms and conditions set forth herein, Lessor shall make installments of Equity Investment in Dollars, in immediately available funds, in the form of Advances in an amount that will not result in the aggregate amount of Lessor’s Equity Investment exceeding its Commitment as set forth on Schedule I hereto. All installments of Equity Investment shall be paid to the Constructor (or its designee) on the Advance Dates in accordance with Sections 3.3 and 3.4 and the proceeds of the Equity Investment shall be applied in accordance with Section 3.5. Amounts repaid or prepaid in respect of the Equity Investment may not be re-borrowed.

SECTION 2.2. Equity Investment.

(a) Procedure for Investment . With respect to (i) the Closing Date for the acquisition of the Existing Improvements and the related Sites and (ii) the Construction Period on any Advance Date for the acquisition of the Unimproved Land and Construction of the New Improvements (Fremont 3E), upon receipt of an Advance Request pursuant to Section 3.3(a), and, in each case, subject to the terms and conditions of this Agreement, the Lessor agrees that it shall wire transfer a portion of its Equity Investment equal to the amount of the Advance set forth in such Advance Request, in immediately available federal funds to such account as the Constructor shall have indicated in the Advance Request and for same day value; provided , that if the terms and conditions for such Advance set forth herein have not been satisfied by 5:00 p.m. New York time on the Business Day immediately preceding such Advance Date, the Lessor shall not be obligated to maintain the availability of its funds for such Advance unless the Lessor has received a satisfactory indemnity for the investment of such funds. Notwithstanding any other provision hereof, Lessor shall not be obligated to make available any Equity Investment if, after giving effect to the proposed Equity Investment, the aggregate outstanding Equity Investment of Lessor shall exceed the Lessor’s Commitment.

(b) Returns on and of Equity Investment . Lessor shall be entitled to a return on the Equity Investment in the amount of Interim Yield or Yield, as applicable, which is payable in accordance with Section 2.4 hereof. With respect to each Lease, Lessor shall be entitled to a return of its Equity Investment outstanding, in full, together with (i) Interim Yield or Yield, as applicable, accrued thereon to the date of return, and (ii) all other amounts then due and payable by Lessee hereunder or under the other Operative Documents (except under Other Lease Documents) to the Lessor, upon the first to occur of:

(i) purchase by Lessee of the respective Leased Property pursuant to Article XIII or Article XX of such Lease, such return to be due on the date specified in such provisions for payment with respect to such purchase;

(ii) the Return Date; and

 

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(iii) a termination of such Lease during the Construction Period pursuant to Article XIII of the Lease, such return to be due on the date of such termination.

(c) Scheduled Return of Investment . Except in the case of a required return described in Section 2.2(b) above or upon default, no return in respect of the Equity Investment shall be due prior to the Final Maturity Date. On the Final Maturity Date, the Lessor shall be entitled to the aggregate unpaid Equity Investment as of such date.

SECTION 2.3. Calculation of Rent.

(a) Calculation of Interim Rent . Subject to Section 2.5, with respect to Lease Fremont 3E prior to the Base Term Commencement Date thereunder, Interim Rent shall be payable on the Interim Accrual Date in an amount equal to all Interim Yield then due on the outstanding Equity Investment.

(b) Calculation of Basic Rent . With respect to each Lease, Basic Rent shall be payable from time to time on each Payment Date during the Base Term in an amount equal to all Yield then due on the outstanding Equity Investment.

SECTION 2.4. Interim Yield; Yield.

(a) Calculation of Interim Yield and Yield. During any Interim Term under a Lease, the amount of the Equity Investment outstanding from time to time with respect to such Lease shall accrue Interim Yield during each Interim Accrual Period at a rate per annum equal to the then applicable Interim Yield Rate. During the Base Term under each Lease, the amount of the Equity Investment outstanding from time to time with respect to such Lease shall accrue Yield during each Payment Period at a rate per annum equal to the then applicable Yield Rate. Yield shall be payable in arrears on each Payment Date and, subject to Section 2.5, Interim Yield shall be payable in arrears on each Interim Accrual Date. Notwithstanding anything to the contrary contained herein or in any of the other Operative Documents, Yield Determination Date with respect to the initial Interim Accrual Period and the initial Payment Period (which shall be three (3) months), as applicable, shall be the Business Day prior to the Closing Date and (i) the Equity Investment outstanding under the Lease Fremont 3E shall accrue Interim Yield during such Interim Accrual Period at a rate per annum equal to the Lessor’s actual cost of funds for such period as set forth in a notice from Lessor to Lessee which notice shall include a confirmation that the cost of funds being claimed in such notice represents a reasonable approximation of the cost of funding such Equity Investment as of the date of such funding from the London interbank market or whatever other sources are reasonably available to Lessor, and (ii) the Equity Investment outstanding under each other Lease shall accrue Yield at a rate per annum equal to the LIBOR Rate determined on such date for such Payment Period as set forth in a notice from Lessor to Lessee.

(b) Alternate Base Rate . To the extent any Equity Investment shall accrue interest at the Interim LIBOR Rate or the LIBOR Rate, as applicable, and if, pursuant to Section 2.9(a) or (b), the Lessor is unable to obtain or maintain an Interim LIBOR Rate or a LIBOR Rate for an Interim Accrual Period or a Payment Period, as applicable, such Equity Investment shall

 

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accrue yield at a rate per annum equal to the Alternate Base Rate plus the Applicable Margin until the date on which Lessor shall be able to obtain or maintain an Interim LIBOR Rate or LIBOR Rate for such Equity Investment for such Interim Accrual Period or Payment Period, as applicable, at which time such Alternate Base Rate Equity Investment shall convert to a LIBOR Equity Investment.

(c) Overdue Rate. If all or a portion of (i) any Equity Investment, (ii) any Interim Yield or Yield payable on any Equity Investment, or (iii) any other amount payable to Lessor hereunder (whether in respect of yield, fees or other amounts) shall not be paid when due (whether at the stated maturity thereof, by acceleration or otherwise), then such overdue amount shall bear interest, payable on demand, at a rate per annum which is equal to the Overdue Rate. Without duplication of the foregoing, upon the occurrence and during the continuance of any Event of Default, the Equity Investment and, to the extent permitted by Applicable Law, Interim Yield or Yield on the Equity Investment and interest on any other amounts owing hereunder or under the other Operative Documents shall bear interest, payable on demand, at a per annum rate of two percent (2%) greater than the rate which would otherwise be applicable. Such interest shall be added to and constitute Supplemental Rent, payable by Lessee.

SECTION 2.5. Capitalized Yield.

During the Interim Term of each Lease of Unimproved Land, on each date which is three (3) Business Days prior to any Interim Accrual Date, the Constructor shall be deemed to have requested an Advance in an amount equal to Capitalized Yield accrued on the Equity Investment with an Interim Accrual Period ending on such Interim Accrual Date. The Advance Date with respect to each such Advance for such accrued Capitalized Yield shall be the relevant Interim Accrual Date (subject to the terms and conditions for an Advance set forth in this Agreement). Pursuant to Section 2.4(a), the Lessor shall retain the Capitalized Yield set forth therein. The Interim Accrual Period with respect to any such Advance shall be the same as the Interim Accrual Period with respect to an Advance of the same type that is made on the same Advance Date. Two (2) Business Days prior to such Advance Date, the Lessor shall calculate such Capitalized Yield accrued on the Equity Investment in accordance with the following sentence and notify the Constructor thereof. On each such Advance Date, the Equity Investment shall be increased by an amount equal to such Advance; provided , however , that if any Advance hereunder would exceed the aggregate Available Commitments of the Lessor, then the Lessor shall not have any obligation to make any such funding, provided , however , that the Lessor may elect in its sole discretion to increase the Commitment for such Advance.

SECTION 2.6. Fees.

Lessee shall authorize and request Advances to fund on the Closing Date and during the Construction Period any and all Transaction Costs with respect to which invoices have been received at least five (5) Business Days prior to an Advance Date and fund any and all fees described in the succeeding provisions of this Section 2.6 (collectively, the “ Fees ”) and, following the Construction Period, shall pay all Transaction Costs and the Fees:

(a) on the Closing Date, the Lessee shall pay to the Arranger an arrangement and structuring fee (the “ Structuring Fee ”) as previously agreed to in the Fee Letter; and

 

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(b) on each third Interim Accrual Date occurring with respect to the Interim Term of Lease Fremont 3E, the Lessee shall pay to the Lessor a non-utilization fee (the “ Non-Utilization Fee ”) equal to the product of the Non-Utilization Fee Rate per annum and the amount of its Commitment which is undrawn since the prior Accrual Date on which a Non-Utilization Fee was paid.

SECTION 2.7. Computations.

Interim Yield and Yield on the Equity Investment and other accrued amounts under the Operative Documents shall be calculated on the basis of a 360-day year for the actual days elapsed at all times. Each determination of the Interim Yield Rate and Yield Rate by the Lessor pursuant to any provision of this Agreement or any other Operative Document shall be binding on Lessee in the absence of manifest error.

SECTION 2.8. Determination of Yield Rate and Payment Periods.

(a) Determination of LIBOR Rate . The amount of Equity Investment outstanding from time to time shall accrue Interim Yield and Yield at the rate per annum equal to the Interim Yield Rate and the Yield Rate, respectively. The Lessor shall as soon as practicable, but in no event later than 11:00 a.m., New York time, two (2) Business Days prior to the effectiveness of each LIBOR Rate, notify the Lessee of such LIBOR Rate and the corresponding Interim Yield Rate and Yield Rate, as applicable, but failure to so notify shall not affect the obligations of the parties hereunder or under the other Operative Documents. During the Interim Term for Lease Fremont 3E, Interim Yield attributable to amounts advanced by the Lessor will be (i) retained by the Lessor and added to the Equity Investment with respect thereto pursuant to Section 2.5 and (ii) capitalized monthly in arrears.

(b) Determination of LIBOR Rate Payment Periods . During any Interim Term, each Interim Accrual Period applicable to the Equity Investment bearing yield at a rate determined with respect to the Interim LIBOR Rate shall be a period of one (1) month which shall commence on and include the Closing Date or the Interim Accrual Date immediately following the prior Interim Accrual Period and end on but not include the next Interim Accrual Date. During the Base Term of each Lease, each Payment Period applicable to the Equity Investment bearing interest at a rate determined with respect to the LIBOR Rate shall be determined by the Lessee by providing the Lessor with irrevocable notice of such determination at or before 1:00 p.m., New York time two (2) Business Days’ prior to the commencement of such Payment Period, and shall be a period of three (3) months or six (6) months, in each case, commencing after the end of the preceding Payment Period applicable to such Equity Investment but, in any event, ending not later than the date such Equity Investment shall be due and payable including the Final Maturity Date. During the Base Term, (i) elections of Payment Periods by Lessee shall apply to the Equity Investment bearing interest at a rate determined with respect to the LIBOR Rate, and (ii) if the Lessee fails to notify the Lessor of its preferred Payment Period for the Equity Investment bearing interest at a rate determined with respect to the LIBOR Rate in accordance with this clause (b), the Lessee shall be deemed to have elected to continue the Equity Investment as Equity Investment bearing interest at a rate determined with respect to the

 

6


LIBOR Rate with a Payment Period of three (3) months, subject to Sections 2.9(a) and (b) below.

(c) Alternate Base Rate Payment Periods . Each Payment Period applicable to the Equity Investment bearing yield at a rate determined with respect to the Alternate Base Rate shall be a period of one (1) month commencing after the end of the preceding Interim Accrual Period or Payment Period applicable to such Equity Investment. So long as none of the circumstances described in Sections 2.9(a) or (b) shall exist, the Lessee may elect to convert the Equity Investment bearing yield at the Alternate Base Rate into an Equity Investment bearing yield at a rate determined with respect to the LIBOR Rate by providing irrevocable notice to the Lessor at least three (3) Business Days prior to the commencement of the next Interim Accrual Period or Payment Period, as applicable, and such conversion shall be effective on the commencement of such Interim Accrual Period or Payment Period, as applicable.

(d) Applicability of Periods . The Interim Accrual Periods and Payment Periods determined in accordance with clauses (b) and (c) above shall apply to the Equity Investment as a whole and not as to any portions thereof.

(e) Binding Determinations . Each determination of an Interim Yield Rate or Yield Rate pursuant to any provision of this Agreement or any other Operative Document shall be conclusive and binding on the Lessee in the absence of manifest error.

SECTION 2.9. Change of Circumstances.

(a) Inability to Determine Rates. If on or before the first day of any Interest Accrual Period or Payment Period for any Equity Investment which is to bear interest at the Interim LIBOR Rate or LIBOR Rate, as applicable, the Lessor determines in good faith (which determination shall be made on a basis that is neither arbitrary nor capricious and shall be conclusive and binding on Lessee absent manifest error) that (i) Interim LIBOR or LIBOR, as applicable, for such Interim Accrual Period or Payment Period cannot be adequately and reasonably determined due to the unavailability of funds in, or other circumstances affecting, the London interbank market or (ii) as a result of events or circumstances outside of Lessor’s control, deposits in Dollars in the London interbank market are not available to the Lessor in the ordinary course of business in sufficient amounts to make and/or maintain its Equity Investment, then the Lessor shall give notice of such condition to Lessee as soon as practicable thereafter together with an explanation in reasonable detail describing such condition (“ Notice of Inability to Determine Rates ”). After the giving of any such Notice of Inability to Determine Rates and until the Lessor shall otherwise notify Lessee that the circumstances giving rise to such condition no longer exist (which notice shall be given to Lessee promptly upon Lessor’s good faith determination made on a basis that is neither arbitrary nor capricious that the condition no longer exists), Lessee’s right to request the making of and the obligations of the Lessor to make LIBOR Equity Investments (or to roll over Equity Investments into LIBOR Equity Investments) shall be suspended. Any such LIBOR Equity Investment outstanding at the commencement of any such suspension relating thereto shall be automatically converted at the end of the then current Interest Accrual Period or Payment Period therefor, as applicable, or sooner, if required by Applicable Law, into an Alternate Base Rate Equity Investment. Any Equity Investment requested or made

 

7


after the commencement of any such suspension relating thereto shall be made as an Alternate Base Rate Equity Investment. The Lessor shall promptly give the Lessee written notice when it determines that the circumstances giving rise to any Notice of Inability to Determine Rates no longer exists.

(b) Illegality . If:

(1) the Lessor shall determine in good faith (which determination shall be made on a basis that is neither arbitrary nor capricious and shall be conclusive and binding on Lessee absent manifest error) that after the date hereof the adoption of any Applicable Law, any change in any Applicable Law or the application or requirements thereof (whether such change occurs in accordance with the terms of such Applicable Law as enacted, as a result of amendment, or otherwise), any change in the interpretation or administration of any Applicable Law by any Authority, or compliance by the Lessor with any request or directive of any Authority having jurisdiction over the Lessor or any directive or guidance of any national central banking authority, the European Central Bank or the Federal Reserve Board (whether or not having the force of law) (a “ Change of Law ”) makes it unlawful, or the applicable central bank or other applicable Authority asserts that it is unlawful, or impossible for the Lessor or its principal bank Affiliate to make, continue or maintain any amount of its Equity Investment on an Interim LIBOR or LIBOR Rate basis, or

(2) an Event of Default shall have occurred and be continuing,

then the Lessor shall immediately notify the Lessee of such Change of Law (“ Notice of Change of Law ”). Notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act, and all requests, rules, guidelines and directives promulgated thereunder or in connection therewith, and (y) and all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to the Basel III Global Regulatory Framework for more Resilient Bank and Banking Systems, shall in each case be deemed to be a Change of Law for the purposes of this Section 2.9, regardless of the date enacted, adopted or issued. Upon receipt of a Notice of Change of Law (i) Lessee’s right to request the making of, and the Lessor’s obligations to make LIBOR Equity Investments shall be suspended for so long as such condition shall exist; and (ii) (x) upon demand from the Lessor and provided that Lessor may not legally convert and continue the LIBOR Equity Investment as an Alternate Base Rate Equity Investment under clause (y), Lessee shall repay such LIBOR Equity Investments on the last day of the Interim Accrual Period or Payment Period therefor if the Lessor may lawfully continue to maintain such LIBOR Equity Investments to such day, or immediately if the Lessor may not lawfully continue to maintain such LIBOR Equity Investments to such day or (y) such outstanding LIBOR Equity Investments shall be converted into Alternate Base Rate Equity

 

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Investments, at the election of Lessee, if the Lessor shall notify Lessee that it may not lawfully continue to fund and maintain such LIBOR Equity Investments. Any such conversion or prepayment of LIBOR Equity Investments made pursuant to the preceding sentence prior to the last day of an Interim Accrual Period or Payment Period for such Equity Investments shall be deemed a prepayment thereof for purposes of Section 2.10. Any Equity Investment requested after the receipt of a Notice of Change of Law shall be made as an Alternate Base Rate Equity Investment. Equity Investments so converted into Alternate Base Rate Equity Investments shall accrue yield at the rate per annum equal to the Alternate Base Rate then in effect plus the Applicable Margin. The Lessor shall promptly give the Lessee written notice when it determines, in good faith and on a basis that is neither arbitrary nor capricious, that the circumstances giving rise to any Notice of Change of Law no longer exist.

(c) Increased Costs . If on or after the date hereof, any Change of Law:

(i) shall subject the Lessor (or its applicable lending office) to any Tax with respect to its Equity Investment or its obligation to provide additional Equity Investment, or shall change the basis of taxation of payments to the Lessor (or its applicable lending office) of the principal of or yield on its obligations hereunder or any other amounts due under the Operative Documents in respect of its obligations hereunder or thereunder (except for (A) franchise taxes or Taxes related to the general authority of the Lessor or its applicable lending office to do business, (B) Taxes imposed other than by way of withholding from payments under this Agreement on the gross income of the Lessor or its applicable lending office, (C) Taxes imposed by the jurisdiction where the Lessor is incorporated (or any political subdivision thereof) or where it is managed or controlled or where its applicable lending office is located, (D) Taxes that would not have been imposed but for the failure to provide an IRS Form W-8BEN, W-8ECI or W-8IMY or such other certification that may reasonably be requested in order to avoid or eliminate any Taxes (or the withholding thereof), (E) withholding taxes imposed under the laws of any jurisdiction other than the United States or any State thereof, or (F) U.S. withholding Taxes imposed pursuant to FATCA); or

(ii) shall impose, modify or deem applicable any reserve (including, without limitation, any such requirement imposed by the F.R.S. Board but, excluding, with respect to any LIBOR Equity Investment, any such requirement with respect to which the Lessor is entitled to compensation pursuant to clause (d) below), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended by, the Lessor (or its applicable lending office); or

(iii) shall impose on the Lessor any other condition not otherwise contemplated hereunder affecting this Agreement or LIBOR Equity Investments made by the Lessor or participation therein;

and the result of any of the foregoing is to increase the cost to the Lessor (or its applicable lending office) of making or maintaining any Equity Investment or to reduce the amount of any

 

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sum received or receivable by the Lessor (or its applicable lending office) under this Agreement or any Lease by an amount deemed by the Lessor to be material ( provided , that any such determination by Lessor hereunder is made in good faith on a basis that is neither arbitrary nor capricious and shall be conclusive and binding on Lessee absent manifest error), then, within thirty (30) days after demand by the Lessor, the Lessee shall, during any Interim Term, authorize and request Advances to fund such additional amount or amounts as will compensate the Lessor for such increased cost or reduction and, during any Base Term, shall pay to the Lessor such additional amount or amounts as will compensate the Lessor for such increased cost or reduction.

(d) Capital Requirements. Without duplication of amounts payable under Section 2.9(c) above, if the Lessor shall have determined, in good faith (which determination shall be made on a basis that is neither arbitrary nor capricious) that (i) any Change of Law affects the amount of capital required or expected to be maintained by the Lessor or its applicable lending office (a “ Capital Adequacy Requirement ”) and (ii) the result of the Capital Adequacy Requirement shall be to increase the cost to Lessor of making or maintaining any LIBOR Equity Investment (taking into account the Lessor’s policies with respect to capital adequacy), then from time to time, within fifteen (15) days after demand therefor by the Lessor, the Lessee shall, during any Interim Term, authorize and request Advances to fund during the Construction Period such additional amount or amounts as will compensate the Lessor for such additional costs incurred and, during any Base Term, shall pay to the Lessor such additional amount or amounts.

(e) Eurocurrency Reserves . For so long as the Lessor shall be required pursuant to the requirements of the F.R.S. Board to maintain reserves with respect to liabilities or assets consisting of or including “Eurocurrency liabilities” (or any other category of liabilities which includes deposits by reference to which the rate on LIBOR Equity Investment is determined or any category of extensions of credit or other assets which includes loans by a non-United States office of the Lessor to United States residents), then the Lessor may ( provided , that any such determination by Lessor hereunder is made in good faith on a basis that is neither arbitrary nor capricious and shall be conclusive and binding on Lessee absent manifest error), during any Interim Term, require the Lessee to authorize and request Advances to fund and, during any Base Term, pay contemporaneously with each payment of Yield on such Equity Investment, on a pro rata basis, additional yield on the related Equity Investment of the Lessor at a rate per annum determined by the Lessor up to but not exceeding the excess of (a)(i) the applicable Interim LIBOR Rate or LIBOR Rate divided by (ii) one minus the LIBOR Reserve Percentage over (b) the applicable Interim LIBOR Rate or LIBOR Rate. To the extent the Lessor wishes to require Advances or payment of such additional yield, the Lessor (x) shall so notify the Lessee, in which case such additional yield on the Equity Investment of the Lessor shall be payable to the Lessor at the place indicated in such notice with respect to each Interim Accrual Period or Payment Period commencing at least ten (10) days after the giving of such notice and (y) to the extent possible, shall notify the Lessee at least ten (10) days prior to each date on which interest or yield is payable on the Equity Investment of the amount then due it under this clause.

(f) Notice . Except as otherwise provided in this Section 2.9, the Lessor will notify the Lessee of any event occurring after the date of this Agreement that will entitle the

 

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Lessor to compensation pursuant to this Section as promptly as is practicable; provided that Lessee is not required to compensate the Lessor under this Section 2.9 for any increased costs or reduction incurred more than one hundred eighty (180) days before the date Lessor first notifies Lessee of its intention to demand compensation under this Section 2.9; provided further that if the Change of Law that gives rise to such increased cost or reduction is retroactive, then the 180 day period referred to above shall be extended to include the period of retroactive effect thereof. A certificate of the Lessor claiming compensation under this Section and setting forth the additional amount or amounts to be paid to it hereunder, accompanied by a computation in reasonable detail of such amount or amounts, shall be conclusive absent manifest error. In determining such amount, the Lessor may use any reasonable averaging and attribution methods provided , that, such methods shall not be inconsistent with the methods used by the Lessor in calculating the reduction in return allocable to other similar loans, investments or commitments to other companies.

SECTION 2.10. Funding Losses.

If Lessee shall (a) repay, prepay or convert all or any portion of the Lease Balance, the Interim Rent or Basic Rent for which is calculated at LIBOR, on any day other than the last day of an Interim Accrual Period or a Payment Period (including as a result of a Construction Event of Default or an Event of Default) whether an optional prepayment or a mandatory prepayment; (b) fail to consummate an Advance or roll over any such Lease Balance on the date specified in any notice delivered pursuant hereto; or (c) fail to make any payment of any such Lease Balance in accordance with any Early Termination Option, Event of Loss or notice of payment thereof previously delivered to the Lessor; then, in any such event, Lessee shall, upon demand by the Lessor, pay, as Supplemental Rent, to the Lessor all actual, out-of-pocket costs, losses, liabilities and expenses which the Lessor may incur as a result of such repayment, prepayment, conversion or failure, including any actual, out-of-pocket loss, cost, liability or expense actually incurred by reason of the liquidation or re-employment of deposits or other funds acquired by the Lessor to fund or maintain such Equity Investment (but excluding any loss of anticipated profit or margin) (the “ Break Funding Amount ”). A certificate of the Lessor setting forth any amount or amounts that the Lessor is entitled to receive pursuant to this Section shall be delivered to Lessee and shall be conclusive absent manifest error.

SECTION 2.11. Alternate Office . The Lessor agrees that, upon the occurrence of any event giving rise to the operation of Sections 2.9(b) or 2.9(d) hereof or to compensation under Section 7.4 hereof, it will, if requested by the Lessee, use reasonable efforts (subject to overall policy considerations of the Lessor) to designate another lending office for any Equity Investments affected by such event; provided , that such designation is made on such terms that the Lessor and its lending office suffer no legal, regulatory or material economic disadvantage, with the object of avoiding the consequence of the event giving rise to the operation of any such Section. Nothing in this Section 2.11 shall affect or postpone any of the obligations of the Lessee or the rights of the Lessor provided in Sections 2.9(b) or 2.9(d) hereof or to compensation under Section 7.4 hereof.

SECTION 2.12. Nature of Transaction.

 

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It is the intention of the parties that:

(a) each Lease constitutes an operating lease from Lessor to Lessee for purposes of Lessee’s financial reporting under GAAP; and

(b) for United States federal, state and local income tax, property tax, transfer tax, sales tax, franchise tax, general corporation tax and other similar taxes that may be imposed upon net or gross income, bankruptcy (including the substantive law upon which bankruptcy proceedings are based), real estate, commercial law and all other purposes:

(i) such Leases and the Overall Transaction constitute a financing by the Lessor to the Lessee, the obligations of the Lessee to pay Interim Rent and Basic Rent shall be treated as payments of interest to the Lessor, and the payment by the Lessee of any amounts in respect of the Lease Balance shall be treated as payments of principal to the Lessor;

(ii) Lessee will not be entitled to, and shall not avail itself of, any of the rights or benefits accorded to a lessee under Applicable Law except as expressly permitted under the Leases and the Lessor will be deemed and will have the rights of a lender making secured loans to the Lessee secured by, among other things the Lessee Collateral; and

(iii) Lessee is and will be the owner of the Sites, the Improvements and the New Improvements (Fremont 3E).

Nevertheless, the Lessee acknowledges and agrees that the Lessor has not made, in any capacity, any representations or warranties concerning the tax, accounting or legal consequences or characteristics of the Operative Documents or any aspect of the Overall Transaction and that the Lessee has obtained and relied upon such tax, accounting and legal advice concerning the Operative Documents and the Overall Transaction as it deems appropriate, provided , that the Lessee may rely on the representations and warranties contained in the Operative Documents and the legal opinions issued to it in connection therewith and to which it is an addressee. The Lessor acknowledges and agrees that the Lessee has not made any representations or warranties concerning the tax, accounting or legal consequences or characteristics of the Operative Documents or any aspect of the Overall Transaction and that the Lessor has obtained and relied upon such tax, accounting and legal advice concerning the Operative Documents and the Overall Transaction as it deems appropriate, provided , that the Lessor may rely on the representations and warranties contained in the Operative Documents and the legal opinions issued in connection therewith.

SECTION 2.13. Amounts Due.

(a) Anything else herein or elsewhere to the contrary notwithstanding, it is the intention of the Lessee and the Lessor that (i) during the Base Term, the amount and timing of installments of Basic Rent due and payable from time to time from the Lessee under each Lease shall be equal to the aggregate payments due and payable in respect of Yield accrued on the Equity Investment due on each Payment Date; (ii) if the Lessee elects an Early Termination

 

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Option or a Purchase Option under a Lease, the Equity Investment, all Yield thereon, all Fees and Transaction Costs and all other obligations of the Lessee owing to the Lessor shall be paid in full by the Lessee in accordance with Article XX or Article XXI of such Lease, as applicable; (iii) if the Lessee properly elects a Return Option and remarkets a Leased Property in accordance with Article XXII of a Lease, in the absence of a Default or Event of Default thereunder (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Event of Defaults with respect to which Lessor has not yet commenced exercising remedies), Lessee shall be required to pay the Sale Proceeds of the sale of such Leased Property (in an amount not to exceed the Lease Balance, any excess being payable to the Lessee, except in the case of application of Section 22.4 of the Lease), and if the Sale Proceeds are less than the Lease Balance, the lesser of (x) the amount of such difference and (y) the Recourse Deficiency Amount, all in accordance with Article XXII of the Lease, and any amounts due pursuant to Article VII hereof and Section 22.3(a) of the Lease (which aggregate amounts may be less than the Lease Balance); and (iv) upon a Default or Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Event of Defaults with respect to which Lessor has not yet commenced exercising remedies), the amounts then due and payable by the Lessee under the related Lease shall include all amounts necessary to pay in full the outstanding Equity Investment and all accrued Yield thereon, plus all other amounts then payable by the Lessee to the Lessor under Operative Documents.

(b) Lessee shall pay or repay the Advances at such times and in such amounts as the Lease Balance becomes due and payable, which payment obligations shall be satisfied by and to the extent of any payment made by or on behalf of the Lessee pursuant to the Operative Documents of Rent, the Lease Balance, the Purchase Amount, the Sales Proceeds or the Recourse Deficiency Amount, as the case may be.

ARTICLE III

CONDITIONS PRECEDENT; ADVANCES

SECTION 3.1. Closing Date Conditions.

The obligations of Lessor to acquire the Sites and Existing Improvements, lease the Leased Properties, finance the New Improvements (Fremont 3E), and issue its Commitment and the effectiveness of this Agreement (the “ Closing ”) shall occur at the offices of Dechert LLP, One International Place, 100 Oliver Street, Boston, Massachusetts 02110 at 10:00 a.m. on December 31, 2013 (the “ Closing Date ”) and shall be subject to the fulfillment to the satisfaction of, or waiver by, the Lessor (acting directly or through its counsel) on or, unless otherwise specified, prior to the Closing Date of the following conditions precedent:

(a) Authorization, Execution and Delivery of Operative Documents. The following documents shall have been duly authorized, executed and delivered by the Lessee, shall be in form and substance reasonably satisfactory to the Lessor and an executed counterpart of each thereof shall have been received by the Lessor:

 

  (i) this Agreement;

 

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  (ii) each Lease;

 

  (iii) the Construction Agency Agreement;

 

  (iv) each Memorandum of Lease;

 

  (v) an Assignment of Contract for each then-existing Major Construction Document;

 

  (vi) each Pledge Agreement;

 

  (vii) each Deposit Agreement;

 

  (viii) the Blocked Account Agreement; and

 

  (ix) the Shared Parking Agreement.

(b) Legal Opinions . Lessor shall have received the favorable opinion of Jones Day, special counsel to Lessee, dated the Closing Date and in form and substance reasonably satisfactory to Lessor.

(c) Insurance. Lessee shall have delivered the insurance certificates required by Section 11.2 of each Lease to the Lessor.

(d) Governmental and Third Party Approvals. All necessary or advisable Governmental Actions and all consents, approvals and authorizations of Persons other than Authorities, required in connection with the Overall Transaction, shall have been obtained or made and be in full force and effect and not be subject to any pending procedures or appeals, whether administrative, judicial or otherwise, except for (i) with respect to a Lease of Unimproved Land, any Governmental Actions that are not required with respect to the then current status of the construction of the New Improvements (Fremont 3E); (ii) any other Governmental Action, consent, approval or authorization the failure to obtain which, or the appeal of or further procedures with respect to which, would not reasonably be expected to have a Material Adverse Effect; and (iii) with respect to a Lease of Unimproved Land, the execution of those Construction Documents not required with respect to the then current status of the construction of the New Improvements (Fremont 3E) thereon.

(e) Corporate Status and Proceedings. The Lessor shall have received:

(i) a certificate of good standing with respect to Lessee from the State of Delaware and a satisfactory certificate of status with respect to Lessee from the State of California, each dated no earlier than the 30th day prior to the Closing Date; and

(ii) a certificate of the Secretary or Assistant Secretary (or other authorized representative) of the Lessee, in form and substance reasonably satisfactory to the Lessor and attaching and certifying as to (A) the directors’ resolutions in respect of the execution, delivery and performance by the Lessee of each Operative Document to which it is or will be a party, (B) its certificate of incorporation and by-laws (or

 

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equivalent company documents), and (C) the incumbency and signatures of persons authorized to execute and deliver the Operative Documents on behalf of the Lessee.

(f) Representations and Warranties. Each representation and warranty of the Lessee contained herein or in any other Operative Document (or in certificates delivered pursuant thereto) shall be true and correct in all material respects on and as of the Closing Date.

(g) Appraisal. The Lessor shall have received a copy of an appraisal (the “ Appraisal ”) from the Appraiser which shall establish (by the use of appraisal methods satisfactory to the Lessor) the Fair Market Value and the economic useful life of each Leased Property (assuming, as applicable, the Completion of the entire New Improvements (Fremont 3E) on each Unimproved Land site in accordance with the Plans and Specifications and Applicable Law, and assuming that such New Improvements (Fremont 3E) have been constructed) as of the Base Term Commencement Date and as of the Final Maturity Date.

(h) Site Maps . The Lessor shall have received site maps of the Unimproved Land prepared to reflect the anticipated location of the New Improvements (Fremont 3E) thereon, which shall be in form and substance reasonably satisfactory to the Lessor.

(i) Environmental Report. The Lessor shall have received a copy of the “Phase I” environmental assessment (or its equivalent) of the Site by the Environmental Expert, and, if such assessment indicates any exceptions reasonably requiring remedy or further investigation, a further environmental assessment of the Site by such Environmental Expert satisfactory to the Lessor.

(j) Construction Matters . With regard to any New Improvements (Fremont 3E), the Lessor shall have received:

(i) a certificate from an authorized representative of the Constructor, dated the Closing Date, certifying to the effect that: (A) the Construction Commitment of the Lessor is sufficient to Complete construction of the entire New Improvements (Fremont 3E) in accordance with the preliminary Plans and Specifications delivered to Lessor prior to the date hereof and the preliminary Construction Budget delivered to Lessor prior to the date hereof (in each case, as the same may be supplemented or amended pursuant to Section 3.2 of the Construction Agency Agreement) and to pay all Construction Costs; (B) the construction of the New Improvements (Fremont 3E) on the Site in all material respects in accordance with such preliminary Plans and Specifications and such preliminary Construction Budget (in each case, as the same may be supplemented or amended pursuant to Section 3.2 of the Construction Agency Agreement) can be Completed before the Construction Period Termination Date; (C) the New Improvements (Fremont 3E) when constructed will be constructed on the Unimproved Land in all material respects in accordance with the final Plans and Specifications and the final Construction Budget (in each case, as the same may be supplemented or amended pursuant to Section 3.2 of the Construction Agency Agreement); (D) if a change order has been made, the conditions set forth in Section 3.2 of the Construction Agency Agreement have been satisfied; (E) all representations and warranties of the Lessee and the Constructor contained in the Operative Documents are

 

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true and correct in all material respects; (F) no Construction Default or Construction Event of Default has occurred and is continuing; (G) the matters set forth in clause (d) of this Section 3.1 are true and correct; and (H) that, as of the date thereof, attached thereto are true, correct and complete copies of the preliminary Construction Budget (which includes appropriate contingency and risk reserves as set forth therein), the construction schedule, a map of the Unimproved Land and the Major Construction Documents entered into as of the Closing Date, and that the same have not been amended or otherwise modified, revoked or rescinded and, in the case of such Major Construction Documents, are in full force and effect;

(ii) the most current draft of the Construction Budget, if any; and

(iii) the most current draft of the Plans and Specifications, if any.

(k) Survey. Lessee shall have delivered, or shall have caused to be delivered, to the Lessor, at Lessee’s expense, sufficient copies of an accurate as-built survey for each Leased Property other than Unimproved Land and an accurate boundary survey for the Unimproved Land, each prepared in accordance with the 2011 Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys certified to the Lessor and showing no state of facts reasonably unsatisfactory to the Lessor and prepared within ninety (90) days of the Closing Date by a Person reasonably satisfactory to the Lessor. Such surveys shall (1) be acceptable to the Title Insurance Company, (2) show no encroachments on the related Leased Properties by structures owned by others, and no encroachments from any part of the related Leased Properties onto any land owned by others, and (3) disclose no state of facts reasonably objectionable to the Lessor or the Title Insurance Company, and be reasonably acceptable to each such Person.

(l) No Material Adverse Effect. Since June 30, 2013, there has been no Material Adverse Effect with respect to any Leased Property or in the financial position or operations of the Lessee and its Consolidated Subsidiaries, considered as a whole, in each case other than as disclosed in the Lessee’s Form 10-Ks filed with the SEC after such date or its Current Reports on Form 8-K or Form 8-KA filed with the SEC after such date.

(m) Fees, Transaction Costs and Taxes. The Lessor shall have received payment of (i) all Fees agreed to by the Lessee in writing and due and payable to it on or prior to the Closing Date and (ii) all other Transaction Costs due and payable on or prior to the Closing Date that have been set forth in detailed invoices delivered to the Lessee at least five (5) Business Days prior to the Closing Date. All Taxes and filing fees and other charges payable on or prior to the Closing Date in connection with the execution, delivery, recording, filing and registration of the Operative Documents and the Overall Transaction shall have been paid in full or provisions for such payments shall have been made by Constructor to the reasonable satisfaction of the Lessor.

(n) Title and Title Insurance. On the Closing Date, Lessee will have caused (i) each of the Sites to be conveyed to the Lessor pursuant to separate Deeds from the Existing Lessor, and (ii) any Personal Property to be assigned and conveyed to the Lessor pursuant to the Bill of Sale. Lessor shall receive from the Title Insurance Company an ALTA Owner Policy of

 

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Title Insurance and an alternative ALTA Loan Policy of Title Insurance (insuring the lien of the mortgage contained in the Memorandum of Lease) issued to Lessor and its successors and assigns in each case reasonably acceptable in form and substance to Lessor (collectively, the “ Title Policy ”). The Title Policy shall be dated as of the Closing Date, shall include coverage over the general exceptions to such policy and shall contain such affirmative endorsements as may be available under California law as to mechanic’s liens, easements and rights-of-way, encroachments, the non-violation of covenants and restrictions, zoning, survey matters and other matters as Lessor shall reasonably request including, without limitation, an appropriate “re-characterization” endorsement.

(o) Lien Searches, Financing Statements. Uniform Commercial Code lien searches shall have been performed and sufficient copies thereof delivered to Lessor which shall indicate to Lessor’s reasonable satisfaction that there are no Liens other than Liens released concurrently with the effectiveness of this Agreement on the Closing Date (regardless of whether senior, pari passu or junior) in effect with respect to any Lessee Collateral and UCC-1 financing statements covering such collateral shall have been prepared by the parties thereto and copies thereof delivered to Lessor, all of which shall be in form and substance reasonably acceptable to the Lessor.

(p) Filings, Recordings and Other Actions. Lessee shall have caused the Deeds to have been executed and delivered in favor of the Lessor and duly recorded. Lessee and Lessor shall have executed and delivered all instruments and documents necessary for (i) the Lessor to obtain a Lien on the Lessee Collateral, (ii) to the extent reasonably required in connection with the then current status of the construction and planning of the New Improvements (Fremont 3E), and (iii) any of the Operative Documents to become effective or enforceable, in each case in accordance with Applicable Law. Lessee and Lessor shall cause all such instruments and documents to be filed and recorded in the Recorder’s Office or such governmental offices as is necessary to perfect or publish notice of such Liens in favor of the Lessor. The Lessor shall have received satisfactory evidence of the payment of all recording and filing fees and taxes with respect to any recordings or filings made of each Deed, each Memorandum of Lease and any UCC financing statements to be filed with the Secretary of State of Delaware (or other appropriate filing office).

(q) No Default . After giving effect to the transactions contemplated on the Closing Date, no Default, Event of Default, Construction Default or Construction Event of Default shall occur and be continuing.

(r) No Event of Loss, Event of Taking . No Event of Loss or Event of Taking or other event of circumstance that, with the giving of notice or lapse of time or both, would constitute an Event of Loss or an Event of Taking shall have occurred with respect to any Leased Property.

(s) Equity Investment Permitted by Applicable Law, etc. The making of the Equity Investment by Lessor shall be permitted by Applicable Laws (including, without limitation, Regulations T, U and X of the F.R.S. Board) and shall not subject the Lessor to any Tax, penalty, liability or other onerous condition under or pursuant to any Applicable Law. If

 

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requested by the Lessor, Lessee shall deliver an Officer’s Certificate certifying as to such matters of fact as it may reasonably specify to enable it to determine whether such making of the Equity Investment is so permitted.

(t) Lease Commitment . The amount Advanced on the Closing Date to acquire the Sites (other than the Unimproved Land) and the Existing Improvements thereon and to pay Transaction Expenses and Fees due on the Closing Date and allocated to such Sites shall not exceed the aggregate Lease Commitments.

(u) Cash Collateral . The Lessee has delivered or caused to be delivered to Lessor (i) the Cash Collateral - Existing Improvements for deposit with a Deposit Taker, which may be an Affiliate of Lessor, pursuant to each Pledge Agreement (other than the Pledge Agreement Fremont 3E) and the Deposit Taker’s Agreement as defined therein, and (ii) the Cash Collateral - New Improvements with a Deposit Taker, which shall not be an Affiliate of Lessor, pursuant to Pledge Agreement (Fremont 3E) and the Deposit Taker’s Agreement as defined therein.

All documents and instruments required to be delivered on the Closing Date pursuant to the Operative Documents shall be delivered at the offices of Dechert LLP, One International Place, 100 Oliver Street, Boston, Massachusetts 02110, or at such other location as the Lessor and the Lessee may agree. The release by any party of its counterpart to this Agreement shall constitute conclusive evidence of its satisfaction with the form and substance of each of the items so delivered under this Section 3.1.

SECTION 3.2. Condition to Lessee’s Obligations on Closing Date.

The obligations of Lessee to perform its obligations hereunder and under the other Operative Documents on the Closing Date shall be subject to the fulfillment to the satisfaction of, or the waiver in writing by, Lessee, of the following conditions precedent on or prior to the Closing Date:

(a) Representations and Warranties . On the Closing Date, the representations and warranties of the Lessor set forth in the Operative Documents (or in certificates delivered pursuant thereto) executed by it shall be true and correct in all respects as though made on and as of such date.

(b) Funding and Delivery of Documents . The Lessor shall have made all payments, and executed and delivered all documents and instruments, required to be made, executed or delivered by such party on or before the Closing Date pursuant to the Operative Documents and the transactions contemplated hereby and thereby.

(c) Lessor Documents. The Lessee shall have received:

(i) a certificate of good standing with respect to the Lessor from the State of Delaware, dated no earlier than the 30th day prior to the Closing Date; and

 

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(ii) a certificate of the Secretary or Assistant Secretary (or other authorized representative) of the Lessor, in form and substance reasonably satisfactory to the Lessee and attaching and certifying as to (A) the directors’ resolutions in respect of the execution, delivery and performance by the Lessor of each Operative Document to which it is or will be a party, (B) its certificate of incorporation and by-laws and (C) the incumbency and signatures of persons authorized to execute and deliver the Operative Documents on behalf of the Lessor.

(d) Lessor Representations. The Lessee shall have received a letter from the Lessor indicating the assets held by Lessor under any lease to the Lessee or any of its Consolidated Subsidiaries (i) are not financed on a non-recourse basis or otherwise held in a “silo”, and (ii) constitute less than half of Lessor’s assets on a fair market value basis.

SECTION 3.3. Conditions to Each Advance.

The obligation of the Lessor to fund Advances on each Advance Date with respect to Construction of Unimproved Land shall be subject to the satisfaction of, or the waiver in writing by the Lessor of, the conditions precedent set forth in this Section 3.3 on or prior to such Advance Date (except that the obligation of Lessor shall not be subject to Lessor’s own performance or compliance):

(a) Advance Request. At or before 1:00 p.m. New York time on at least the third (3 rd ) Business Day prior to the Advance Date, the Lessee or Constructor, as applicable, shall deliver to the Lessor an irrevocable written notice substantially in the form of Exhibit A (the “ Advance Request ”), setting forth:

(i) the proposed Advance Date;

(ii) a statement of the amount of the requested Advance (including a separate statement of the amount thereof, if any, that constitutes Capitalized Yield, Non-Utilization Fees, Transaction Costs and any other Fees);

(iii) the Interim Accrual Period or Payment Period applicable thereto; and

(iv) wire transfer instructions for the disbursement of the appropriate amount of funds to the Constructor (or its designee) and, on the Closing Date, the Existing Lessor as the seller of the Sites and Existing Improvements thereon.

Notwithstanding the foregoing, the Constructor may request that the Advance be made on any Business Day agreed to between the Constructor and the Lessor. Promptly upon receipt, the Lessor shall calculate the amounts of Equity Investment required to fund the requested Advance. All documents and instruments required to be delivered on an Advance Date pursuant to the Operative Documents shall be delivered to the Lessor or at such other location as the Lessor and the Lessee may agree.

 

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(b) Performance. Lessee and Constructor shall have performed and complied in all material respects with all agreements and conditions contained herein and in any other Operative Document to which the Lessee or the Constructor is a party that are required to be performed or complied with by such party on or prior to the Advance Date with respect to such Advance.

(c) Governmental and Third Party Approvals. All necessary or advisable Governmental Actions, and all consents, approvals and authorizations of Persons other than Authorities, required in connection with the Overall Transaction, shall have been obtained or made and be in full force and effect and not be subject to any pending procedures or appeals, whether administrative, judicial or otherwise, except for (i) any Governmental Actions that are not required with respect to the then current status of the construction of the New Improvements (Fremont 3E); (ii) any other Governmental Action, consent, approval or authorization the failure to obtain which, or the appeal of or further procedures with respect to which, would not reasonably be expected to have a Material Adverse Effect; and (iii) the execution of those Construction Documents not required with respect to the then current status of the construction of the New Improvements (Fremont 3E).

(d) Representations and Warranties True; Absence of Defaults. Each representation and warranty of the Lessee and the Constructor contained herein or in any other Operative Document (or in certificates delivered pursuant thereto) shall be true and correct in all material respects as though made on and as of the related Advance Date, except that any such representation or warranty which is expressly made only as of an earlier date need be true only as of such date. No Material Default or Construction Event of Default shall have occurred and be continuing.

(e) Certification. With respect to Advances in connection with the construction of the New Improvements (Fremont 3E), the Lessor shall have received a certificate from an authorized representative of Constructor certifying to the effect that (i) the remaining Construction Commitment of the Lessor is sufficient to Complete construction of the entire New Improvements (Fremont 3E) in all material respects in accordance with the Plans and Specifications and the Construction Budget (in each case, as supplemented or amended pursuant to Section 3.2 of the Construction Agency Agreement) and to pay all Construction Costs, (ii) the construction of the New Improvements (Fremont 3E) on the Unimproved Land, in all material respects in accordance with the Plans and Specifications and the Construction Budget (in each case, as supplemented or amended pursuant to Section 3.2 of the Construction Agency Agreement), can be Completed before the Construction Period Termination Date, (iii) the New Improvements (Fremont 3E) are being constructed on the Unimproved Land in all material respects in accordance with the Plans and Specifications and the Construction Budget (in each case, as supplemented or amended pursuant to Section 3.2 of the Construction Agency Agreement), (iv) if a change order has been made since the prior Advance, the conditions set forth in Section 3.2 of the Construction Agency Agreement have been satisfied, (v) all representations and warranties of the Lessee and the Constructor contained in the Operative Documents are true and correct in all material respects, (vi) no Material Default, Construction Event of Default or Force Majeure Event has occurred and is continuing, (vii) all necessary or advisable Governmental Actions, and all consents, approvals and authorizations of Persons other

 

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than Authorities, required in connection with the Overall Transaction, shall have been obtained or made and be in full force and effect and not be subject to any pending procedures or appeals, whether administrative, judicial or otherwise, except for (A) any Governmental Actions that are not required with respect to the then current status of the construction of the New Improvements (Fremont 3E); (B) any other Governmental Action, consent, approval or authorization the failure to obtain which, or the appeal of or further procedures with respect to which, would not reasonably be expected to have a Material Adverse Effect; and (C) the execution of those Construction Documents not required with respect to the then current status of the construction of the New Improvements (Fremont 3E), (viii) the proceeds of the Advance will be used solely to pay for acquisition costs, costs for New Improvements (Fremont 3E) and Transaction Costs for the New Improvements (Fremont 3E) previously performed or contracted for and then due or payable, or that have been invoiced (or in the case of costs incurred by the Constructor using its own resources, that have been described in writing to the Lessor in reasonable detail) and will be come due and payable in the month immediately following such Advance Date, or materials previously purchased or contracted for, together with all Carrying Costs and that all invoices for the foregoing costs have been (or will be with the proceeds of such Advance) paid in full, (ix) none of such costs specified in clause (ix) have been reimbursed pursuant to a previous Advance, (x) the costs being funded with the Advance are as set forth in a schedule attached to such certificate, (xi) all conditions precedent to the Advance have been satisfied, and (xii) no Major Construction Documents have been entered into since the Closing Date or the most recent prior Advance Date, as applicable, except as for those attached to the Advance Request. The foregoing certifications may be included in the Advance Request referred to in subsection (a) above. Notwithstanding any provision to the contrary in this Section 3.3(e), any certification with respect to the Plans and Specifications and/or Construction Budget required to be delivered pursuant to this Section 3.3(e) shall be made with respect to the then most recent Plans and Specifications and/or Construction Budget, as applicable, delivered by Lessee and approved by Lessor for each Component of the New Improvements (Fremont 3E).

(f) Assignments and Liens. The Lessor shall have a security interest in all Lessee Collateral and an assignment of the Lessee’s rights under all Construction Documents then in existence pursuant to the Assignment of Contract.

(g) No Event of Loss, Taking, Force Majeure Event. No Event of Loss, Event of Taking, Force Majeure Event or other event or circumstance that, with the giving of notice or lapse of time or both, would constitute an Event of Loss, Event of Taking or Force Majeure Event shall have occurred and be continuing provided, however, to the extent that Lessee shall have made the election set forth in Section 13.1(a)(iv) of Lease Fremont 3E to complete construction following an Event of Loss thereunder, the existence of such Event of Loss shall not preclude Advances hereunder so long as the conditions under such Section 13.1(a)(iv) and the other conditions hereunder shall be satisfied or waived in writing by the Lessor.

(h) Transaction Costs . After the initial Advance, all Transaction Costs invoiced at least five (5) Business Days prior to such Advance Date and included in any Advance Request shall have been paid, or will be paid with the proceeds of the Advance to be made on such Advance Date, to the parties to whom such Transaction Costs were owed.

 

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(i) Equity Investment Permitted by Applicable Law, etc. The making of the Equity Investment by the Lessor shall be permitted by Applicable Laws (including, without limitation, Regulations T, U and X of the F.R.S. Board) and shall not subject the Lessor to any Tax, penalty, liability or other onerous condition under or pursuant to any Applicable Law. If requested by the Lessor, the Lessor shall have received an Officer’s Certificate by the Lessee certifying as to such matters of fact as it may reasonably specify to enable it to determine whether such making of the Equity Investment is so permitted.

(j) Construction Consultant’s Confirmation . With respect to Advances in connection with the construction of the New Improvements (Fremont 3E), the most recent confirmation of the Construction Consultant delivered pursuant to Section 2.7(v) of the Construction Agency Agreement shall confirm the Construction Consultant’s opinion of reasonableness that (i) the remaining Construction Commitment of the Lessor is sufficient to (A) Complete construction of the New Improvements (Fremont 3E) in all material respects in accordance with the Plans and Specifications and the Construction Budget (in each case, as supplemented or amended pursuant to Section 3.2) on or before the Construction Period Termination Date and (B) pay all Construction Costs, and (ii) construction of the New Improvements (Fremont 3E) can be Completed on or prior to the Construction Period Termination Date.

(k) Notations. The Lessor is hereby authorized to record the date and amount of each payment or repayment of principal on its Equity Investment (as the case may be) and the length of each Interim Accrual Period and Payment Period with respect thereto in any manner consistent with its ordinary business practices, and any such recordation shall constitute prima facie evidence of the accuracy of the information so recorded; provided , that the failure to make any such recordation or any errors in such recordation shall not affect the obligation of the Lessee to pay Rent (including any Lease Balance).

(l) Construction Matters . With respect to Advances of hard costs for a particular Component of the New Improvements (Fremont 3E), the Lessor shall have received prior to the commencement of Construction (excluding the razing and salvage of existing improvements, grading and ground improvements on Site Fremont 3E) (i) a copy of the final Construction Budget for such Component of the New Improvements (Fremont 3E) prepared in accordance with Section 2.6 of the Construction Agency Agreement and (ii) a copy of the final Plans and Specifications for such Component of the New Improvements (Fremont 3E) prepared in accordance with Section 2.7(o) of the Construction Agency Agreement.

(m) Major Construction Documents. The Lessee shall have executed and delivered, and caused the respective contractor(s) to have executed and delivered, an Assignment of Contract for each Major Construction Document entered into since the Closing Date or prior Advance Date, as applicable.

(n) Maintenance of Collateral . Lessee and Constructor shall have performed and complied in all material respects with the provisions of Section 4(A) of the Pledge Agreement and the value of the Pre-lease Collateral shall each equal or exceed the Minimum Collateral Value (as each such term is defined in the Pledge Agreement).

 

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SECTION 3.4. Fundings Generally.

(a) Amount of Fundings . Subject to the terms and conditions of this Agreement and in reliance on the representations and warranties of each of the parties hereto contained herein or made pursuant hereto, upon receipt of an Advance Request in accordance with Section 3.3(a), the Lessor (using a portion of its Equity Investment) shall make an Advance (i) as designated by Lessee on the Closing Date which shall be in an amount sufficient to acquire the Sites and Existing Improvements thereon and Personal Property related thereto and to pay Transaction Costs, or (ii) to the Constructor (or its designee) on each Advance Date, for the payment of Construction Costs and Carrying Costs and for the payment of Fees and Transaction Costs invoiced at least five (5) Business Days prior to the relevant Advance Date (and such Transaction Costs and Fees shall be paid for in the manner described in Section 3.5). Transfers of such funds by the Lessor shall be made in immediately available funds by wire transfers to such account as the Lessee and the Constructor, as applicable, shall have indicated in the Advance Request not later than 2:00 p.m., New York time, on the related Advance Date and for same day value provided , that, if the terms and conditions for the Advance set forth herein have not been satisfied by 5:00 p.m. New York time on the Business Day immediately preceding such Advance Date, the Lessor shall not be obligated to maintain the availability of its funds for such Funding unless the Lessee provides a satisfactory indemnity to Lessor for the investment of such funds. No amounts paid or prepaid with respect to any Advance or Equity Investment may be readvanced.

(b) Advances to Lessee and Constructor . Each Advance shall be made by the Lessor in Dollars to the Constructor (or its designee) in accordance with instructions provided to the Lessor.

(c) Advances; Limitations and Limits . In addition to any other provision hereof, the Lessor shall not be obligated to make an Advance of its Equity Investment on any Advance Date if, after giving effect to such Advance, (i) the aggregate outstanding amount of Equity Investment made to fund Advances would exceed its Commitment Amount or (ii) with respect to each Unimproved Land, the aggregate amount of funds Advanced for the acquisition thereof and the Construction of New Improvements (Fremont 3E) thereon would exceed its Construction Commitment with respect thereto. In the event that the Lessor determines that any condition precedent set forth in Section 3.3 is not satisfied for any requested Advance, the Lessor shall be obligated to fund such Advance for Construction Costs incurred and paid by Lessee but not reimbursed to Lessee and until such condition precedent is satisfied the Lessor shall not be obligated to fund any further Advances; provided , however , that the Lessor shall not be obligated to fund such Advance if the failure to satisfy such condition precedent is due to the occurrence of a Specified Event, and in such case the Lessee shall not be permitted to request any further Advances under Section 3.3 and the Lessor shall not be obligated to fund any such further Advances.

There shall be an Advance on the Closing Date and no more than one Advance made during any calendar month, which shall be made on the Monthly Date occurring in each month or such other date agreed to by the parties pursuant to Section 3.3(a). Each Advance made after the Closing Date (excluding any Advance made solely to fund Carrying Costs, Fees and/or

 

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Transaction Costs and excluding the final Advance) shall be in a minimum amount of $500,000 or such other amount as the Lessee and the Lessor shall agree.

(d) Termination and Reduction of Commitments .

Notwithstanding anything in this Agreement to the contrary, the Commitment shall terminate and the Lessor shall not be obligated to make any Advance and no Advance Date may thereafter occur upon the occurrence of the earlier of (A) 3:00 p.m. New York time on the last day of the Commitment Period, and (B) a termination of the Lessor’s Commitment pursuant to Section 5.3 of the Construction Agency Agreement.

Lessee shall have the right, upon not less than ten (10) days prior written notice to the Lessor, to voluntarily reduce the Construction Commitment on an Interim Accrual Date with respect to Construction of New Improvements (Fremont 3E), subject to the satisfaction of the following conditions:

(i) Lessee shall certify to the Lessor that, following such reduction of the Construction Commitment, (x) the remaining Construction Commitment of the Lessor is sufficient to Complete construction of such New Improvements (Fremont 3E) in all material respects in accordance with the Plans and Specifications and the Construction Budget (in each case, as supplemented or amended pursuant to Section 3.2 of the Construction Agency Agreement) and to pay all Construction Costs, (y) the construction of such New Improvements (Fremont 3E) on the related Unimproved Land in all material respects in accordance with the Plans and Specifications and the Construction Budget (in each case, as supplemented or amended pursuant to Section 3.2 of the Construction Agency Agreement) can be Completed before the Construction Period Termination Date, and (z) no Construction Event of Default has occurred and is continuing;

(ii) The Construction Consultant shall certify that in the reasonable belief of the Construction Consultant (x) the remaining Construction Commitment of the Lessor following such reduction is sufficient to (A) complete construction of such New Improvements (Fremont 3E) in accordance with the Plans and Specifications and the Construction Budget (in each case, as supplemented or amended pursuant to Section 3.2) on or before the Construction Period Termination Date and (B) pay all Construction Costs, and (y) construction of such New Improvements (Fremont 3E) can be completed on or prior to the Construction Period Termination Date.

(iii) all Fees, Transaction Costs, Taxes and other amounts accrued with respect to the portion of the Commitments so reduced through the effective date of such reduction shall be paid;

(iv) such reduction shall be in a minimum amount of $500,000 in the aggregate or, if less, the aggregate remaining unfunded Available Commitments of the Lessor; and

(v) such reduction shall reduce the Lessor’s Commitment in an amount equal to such requested reduction in the Construction Commitment.

 

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(e) Increase in Commitments . If the Constructor determines that the Construction Commitment is not sufficient to Complete the New Improvements (Fremont 3E) on Unimproved Land on or prior to the Construction Period Termination Date, then the Lessor and Constructor shall, at the written request of the Constructor accompanied by the explanation, certifications and evidence hereinafter described, in good faith, but for a period not in excess of twenty (20) days ( provided that such period shall not extend beyond the Construction Period Termination Date), discuss the terms and conditions applicable to an increase in the Construction Commitment to enable the Constructor to Complete such New Improvements (Fremont 3E) on or prior to the Construction Period Termination Date. Notwithstanding any provision of the Construction Agency Agreement or related Lease to the contrary, during such twenty (20) day (or shorter) period, the Lessor may not exercise any remedy under the Construction Agency Agreement or related Lease as a result of the remaining Construction Commitment of the Lessor being insufficient to Complete construction of such New Improvements (Fremont 3E) in accordance with the Plans and Specifications and the Construction Budget (in each case, as supplemented or amended pursuant to Section 3.2 of the Construction Agency Agreement) and to pay all Construction Costs. It is understood and agreed that the Lessor is not obligated to increase the Construction Commitment by reason of its entering into such good faith discussions and its approval for such increase in its Construction Commitment may be withheld in its sole discretion. In connection with any such request, the Constructor shall deliver to the Lessor (i) a written explanation detailing the reasons why the Construction Commitment was not sufficient to finance Completion of such New Improvements (Fremont 3E), (ii) a certification to the effect that the increased Construction Commitment will allow Completion of such New Improvements (Fremont 3E) to occur on or before the Construction Period Termination Date, (iii) a certification of the Construction Consultant that in the reasonable belief of the Construction Consultant (x) the remaining Construction Commitment of the Lessor following such increase is sufficient to (I) Complete construction of such New Improvements (Fremont 3E) in accordance with the Plans and Specifications and the Construction Budget (in each case, as supplemented or amended pursuant to Section 3.2) on or before the Construction Period Termination Date and (II) pay all Construction Costs, and (y) construction of such New Improvements (Fremont 3E) can be Completed on or prior to the Construction Period Termination Date, and (iv) any other evidence reasonably requested by the Lessor in connection therewith. If after such twenty (20) day (or shorter) period, the Constructor is unable to obtain from the Lessor Commitments necessary to Complete such New Improvements (Fremont 3E), then a Construction Event of Default shall have occurred.

(f) Extension of Construction Period . If the Constructor reasonably determines in good faith that it will be unable to Complete the New Improvements (Fremont 3E) on Unimproved Land on or prior to the Construction Period Termination Date, then the Lessor and Constructor shall, at the written request of the Constructor accompanied by the explanation, certifications and evidence hereinafter described, in good faith, but for a period not in excess of twenty (20) days ( provided that such period shall not extend beyond the Construction Period Termination Date), discuss the terms and conditions applicable to a postponement of the Construction Period Termination Date to enable the Constructor to Complete such New Improvements (Fremont 3E) on or prior to such extended Construction Period Termination Date. Notwithstanding any provision of any the Construction Agency Agreement or related Lease to the contrary, during such twenty (20) day (or shorter) period, the Lessor may not exercise any

 

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remedy under the Construction Agency Agreement or related Lease solely as a result of the Constructor being unable to Complete construction of such New Improvements (Fremont 3E) in accordance with the Plans and Specifications by the Construction Period Termination Date. It is understood and agreed that the Lessor is not obligated to extend the Construction Period for any reason. The request for such postponement shall be subject to the prior approval of the Lessor which may be withheld in its sole discretion. In connection with any such request, the Constructor shall deliver to the Lessor (i) a written explanation detailing the reasons why such Completion will be unable to occur prior to the Construction Period Termination Date and how such delays will be rectified, (ii) a certification to the effect that the extension of the Construction Period will allow such Completion to occur on or before the extended Construction Period Termination Date, (iii) a certification of the Construction Consultant that in the reasonable belief of the Construction Consultant (x) the Available Commitment of the Lessor following such postponement is sufficient to (I) complete construction of such New Improvements (Fremont 3E) in accordance with the Plans and Specifications and the Construction Budget (in each case, as supplemented or amended pursuant to Section 3.2) on or before the Construction Period Termination Date as postponed and (II) pay all Construction Costs, and (y) construction of such New Improvements (Fremont 3E) can be completed on or prior to the revised Construction Period Termination Date, and (iv) any other evidence reasonably requested by the Lessor in connection therewith. If after such twenty (20) day (or shorter) period, the Constructor is unable to obtain approval for such postponement, then a Construction Event of Default shall have occurred.

SECTION 3.5. Application of Funds.

On the Closing Date, (i) with respect to the acquisition of the Sites and the Existing Improvements thereon and related Personal Property, the Lessor (as a portion of its Equity Investment) shall make an Advance as designated by Lessee for payment of the purchase prices therefor, and (ii) with respect to the Closing and consummation of the Overall Transaction, the Lessor (as a portion of its Equity Investment) shall make an Advance to the Constructor (or its designee) for Transaction Costs, Fees and other uses set forth in the related Advance Request provided , that, an Advance made by the Lessor in respect of Fees described in Section 2.6 shall be deemed to constitute an Advance by the Lessor to the Lessee but such amounts shall be retained by the Arranger or Lessor, as applicable. On each Advance Date after the Closing Date, upon the satisfaction of the terms and conditions of this Agreement, the Lessor (as a portion of its Equity Investment) shall make an Advance to the Constructor for the Construction Costs incurred or to be incurred by the Constructor on behalf of the Lessor, Carrying Costs and Fees and Transaction Costs invoiced at least five (5) Business Days prior to the relevant Advance Date provided , that, Advances made by the Lessor in respect of Fees described in Section 2.6 shall be deemed to constitute Advances by the Lessor to the Lessee but such amounts shall be retained by the Lessor. If the Constructor incurs Construction Costs before it has received an Advance to fund the same, the Constructor shall request an Advance to be reimbursed for such Construction Costs within such period of time as is generally considered customary for such purpose. In each of the foregoing cases, such Advances shall be made pursuant to Section 3.3 and Section 3.4 and shall be in the aggregate amount specified in the applicable Advance Request. Advances made by the Lessor in respect of Capitalized Yield shall be funded and applied in the manner set forth in Section 2.5.

 

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SECTION 3.6. Deliveries Upon Completion.

(a) Within ten (10) days following the Completion Date with respect to Construction of New Improvements (Fremont 3E):

(i) Constructor shall furnish to the Lessor a certification as follows:

(1) the construction of such New Improvements (Fremont 3E) has been Completed in all material respects in accordance with the Plans and Specifications and the Construction Budget (in each case as amended or modified in accordance with Section 3.2 of the Construction Agency Agreement);

(2) the Improvements comply in all material respects with all Applicable Law, and certifying that attached thereto are true and complete copies of an “As-Built” survey of the related Leased Property prepared in accordance with the 2011 Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys certified to the Lessor;

(3) the representations and warranties of the Lessee with respect to such New Improvements (Fremont 3E) and the related Site set forth in Sections 4.1(m), (p), (q), and (u)(iv) are true and correct in all material respects as of the Completion Date. All amounts owing to third parties for the construction of such New Improvements (Fremont 3E) with respect to which invoices have been received by the Lessee on or before the day which is forty-five (45) days prior to such date have been paid in full (other than any subject to a Permitted Contest and other than contingent obligations for which adequate reserves have been created to the extent required by GAAP);

(4) no changes or modifications were made to the Plans and Specifications in violation of Section 3.2 of the Construction Agency Agreement; and

(5) there are no defects to such New Improvements (Fremont 3E) which individually or in the aggregate have caused or reasonably could cause the Fair Market Value of such New Improvements (Fremont 3E) to be materially less than the estimated Fair Market Value at Completion as set forth in the Appraisal; and

(ii) all utilities required to adequately service such New Improvements (Fremont 3E) for its intended use are available except to the extent the unavailability of which individually or in the aggregate would not be reasonably expected to have a Material Adverse Effect.

(b) On the day following the Completion Date, unless otherwise instructed by the Lessor, the Lessee shall cause the Cash Collateral - New Improvements to be delivered to a

 

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Deposit Taker which is an Affiliate of Lessor pursuant to Pledge Agreement (Fremont 3E) and the Deposit Agreement related thereto. Upon, and only upon, receipt of such Cash Collateral - New Improvements shall the Applicable Margin change to four hundred and twenty-five thousandths of one percent (0.425%), and at such time the Blocked Account Agreement shall terminate.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

SECTION 4.1. Representations and Warranties of Lessee.

As of the Closing Date and, solely with respect to Construction of any New Improvements (Fremont 3E), as of each Advance Date, Lessee makes the representations and warranties set forth in this Section 4.1 to Lessor:

(a) Organization; Power; Qualification . Lessee is duly organized as a corporation and is validly existing under the laws of the State of Delaware, has the power and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted and is duly qualified and authorized to do business in the State of California and each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.

(b) Authorization of Operative Documents . Lessee has the right, power and authority and has taken all necessary corporate and other action to authorize the execution, delivery and performance of each of the Operative Documents to which it is a party in accordance with its respective terms. Each of the Operative Documents to which the Lessee is a party has been duly executed and delivered by a duly authorized representative of the Lessee.

(c) Dissolution or Winding Up . The Lessee has not taken any action nor have any steps been taken or legal proceedings commenced or, to the Actual Knowledge of a Responsible Officer of the Lessee, threatened, against the Lessee for its dissolution, winding-up, examination, administration, court protection or reorganization or for the appointment of a receiver, administrator, administrative receiver, examiner, trustee or similar official with respect to the Lessee or any substantial part of its assets or revenues. Prior to and after giving effect to the Overall Transaction, the Lessee is and will be Solvent.

(d) Absence of Defaults, Loss, etc . No event has occurred and is continuing which constitutes a Material Default, Construction Event of Default, Event of Default, Event of Loss (unless the Lessee shall have elected to continue the Lease and reconstruct the affected Improvements in accordance with Section 13.1(b) of the Lease), Condemnation or Casualty; and there is no action pending or, to the best of its knowledge, threatened by an Authority to initiate a Condemnation or an Event of Taking.

(e) Financial Information .

 

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(i) The audited consolidated balance sheet of the Lessee and its Consolidated Subsidiaries as of June 30, 2013, and the related consolidated statements of income, cash flows and changes in stockholders’ equity for the fiscal year then ended, reported on by Ernst & Young LLP, a copy of which has been delivered to the Lessor, fairly present in all material respects, in conformity with generally accepted accounting principles, the consolidated financial position of Lessee and its Consolidated Subsidiaries as of such date and their consolidated results of operations, cash flows and changes in stockholders’ equity for such fiscal year.

(ii) There has been no change since June 30, 2013, which has had or could be reasonably expected to have a Material Adverse Effect.

(f) No Conflicts, etc . The execution, delivery and performance by the Lessee of the Operative Documents to which it is a party and the transactions contemplated thereby do not and will not, by the passage of time, the giving of notice or otherwise, (i) violate any Applicable Law relating to the Lessee, (ii) conflict with, result in a breach of or constitute a default under the charter documents or resolutions of the Lessee, or any indenture or other material agreement or instrument to which the Lessee is a party, or any Governmental Action relating to the Lessee, except, in any case, as could not reasonably be expected to have a Material Adverse Effect, or (iii) result in or require the creation or imposition of any Lien upon or with respect to any Leased Property or any Site (except as contemplated by the Operative Documents) or any material Lien upon or with respect to any other property now owned or hereafter acquired by the Lessee.

(g) Enforceability . Each of the Operative Documents to which the Lessee is a party constitutes the legal, valid and binding obligation of the Lessee, enforceable in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies.

(h) Pari Passu. The claims of the Lessor against the Lessee under the Operative Documents rank at least pari passu with the claims of all of Lessee’s other unsecured creditors, except those whose claims are preferred solely by any laws of general application having effect in relation to bankruptcy, insolvency, liquidation or other similar events.

(i) Investment Company Act, etc. The Lessee is not and will not become, by reason of the Operative Documents or any business or transactions in which it participates voluntarily, (i) an “investment company” or a company “controlled” by an “investment company” (as each of the quoted term is defined or used in the Investment Company Act of 1940, as amended), or (ii) subject to regulation under the Federal Power Act or any foreign, federal or local statute or regulation limiting the Lessee’s ability to incur or guarantee indebtedness or obligations, or to pledge its assets to secure indebtedness or obligations, as contemplated by any of the Operative Documents.

(j) Not a Foreign Person. The Lessee is not a “foreign person” within the meaning of Sections 1445 and 7791 of the Code ( i.e. , the Lessee is not a non-resident alien,

 

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foreign corporation, foreign partnership, foreign trust or foreign estate as those terms are defined in the Code and regulations promulgated thereunder).

(k) Compliance with ERISA. Except where instances of non-compliance, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, (i) Lessee and each ERISA Affiliate has fulfilled its obligations under the minimum funding standards of ERISA and the Code with respect to each Plan and is in compliance in all material respects with the presently applicable provisions of ERISA and the Code with respect to each Plan and (ii) neither the Lessee nor any ERISA Affiliate has (A) sought a waiver of the minimum funding standard under Section 412 of the Code in respect of any Plan, (B) failed to make any contribution or payment to any Plan or Multiemployer Plan or made any amendment to any Plan which in either case has resulted or could result in the imposition of a Lien or the posting of a bond or other security under ERISA or the Code or (C) incurred any Withdrawal Liability or any liability under Title IV of ERISA other than a liability to the PBGC for premiums under Section 4007 of ERISA. Assuming that the source of funds for the Lessor does not include assets of any employee benefit plan (as defined in Section 3 of ERISA) or Plan other than an employee benefit plan or Plan exempt from the coverage of ERISA, Section 4975 of the Code and similar Laws; and the Lessor is not using, directly or indirectly, the assets of any Employee Benefit Plan that is subject to ERISA or Section 4975 of the Code or any similar provisions of Federal, state or local law or any regulations promulgated thereunder to make the Equity Investment, neither Lessee nor any ERISA Affiliate has engaged in a “prohibited transaction” (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which could reasonably be expected to subject Lessee to the tax or penalties on prohibited transactions imposed by Section 4975 of the Code or Section 502 of ERISA and which would result in a Material Adverse Effect.

(l) Labor . Neither the Lessee nor any of its Subsidiaries has experienced strikes, labor disputes, slow downs or work stoppages due to labor disagreements that currently have or could reasonably be expected to have a Material Adverse Effect, and to the knowledge of the Lessee there are no such strikes, disputes, slow downs or work stoppages threatened against it or against any Subsidiary. The hours worked and any payments made to employees of the Lessee and its Subsidiaries have not been in violation in any material respect of the Fair Labor Standards Act or any other Applicable Laws dealing with such matters. All material payments due on account of wages or employee health and welfare insurance and other benefits from the Lessee or from any Subsidiary have been paid or accrued as liabilities on its books.

(m) Title to Properties Generally . Except when the failure to do so does not have and could not reasonably be expected to have a Material Adverse Effect, the Lessee and its Subsidiaries have and will have and maintain good and indefeasible fee simple title to or valid leasehold interests in all of its real property and good title to or a valid leasehold interest in all of its other material assets, as such properties and assets are reflected in the most recent financial statements delivered to the Lessor, other than properties or assets disposed of in the ordinary course of business since such date.

(n) No Approvals, etc . The execution and delivery by the Lessee of any of the Operative Documents to which it is a party does not require the consent or approval of, or the

 

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giving of notice to or registration with, or the taking of any other action in respect of, any Authority.

(o) Litigation . There is no action, proceeding or investigation pending or, to its knowledge, threatened against the Lessee which questions the validity of the Operative Documents, and there is no action, proceeding or investigation pending or, to its knowledge, threatened which is likely to result, either in any case or in the aggregate, in any Material Adverse Effect.

(p) Compliance with Law; Governmental Approvals . Other than with respect to environmental matters, which are treated exclusively in Section 4.1(q) hereof, (i) the Lessee has obtained or received all Governmental Action required by any Applicable Law with respect to the then current status of the Existing Improvements and the construction of New Improvements (Fremont 3E) and each Site, each of which is in full force and effect and not subject to any pending proceedings or appeals (administrative, judicial or otherwise), except for any other Governmental Action the failure to obtain which, or the appeal of or further procedures with respect to which, would not reasonably be expected to have a Material Adverse Effect, (ii) the information provided by Lessee to the Lessor regarding the Governmental Actions that are necessary to Complete construction of New Improvements (Fremont 3E) was true and complete in all material respects, and (iii) the Lessee and each Leased Property are in compliance with each Governmental Action applicable to it and in compliance with all other Applicable Law relating to it in each case, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.

(q) Environmental Matters . Except as previously disclosed to Lessor in the Environmental Reports or as could not reasonably be expected to have a Material Adverse Effect:

(i) no Leased Property (including soils, surface waters and ground waters on, at or under the related Site or such structures) contains, nor is any Leased Property otherwise adversely affected by, and, to the Lessee’s knowledge, no Leased Property has previously contained or been adversely affected by, any Hazardous Materials in amounts or concentrations which (A) constitute or constituted an Environmental Violation or (B) could give rise to any liability or obligation under applicable Environmental Laws;

(ii) each Leased Property and all operations conducted in connection therewith are in material compliance, and have been in material compliance, with all applicable Environmental Laws, and there are no Hazardous Materials at, under or about any Site and there was and has been no Release of Hazardous Materials from, to, at, under or about any Site or from such operations of Existing Improvements or the construction of New Improvements (Fremont 3E);

(iii) Lessee has obtained, is in compliance with, and has made all appropriate filings for issuance or renewal of, all Environmental Permits required for the then current status of any Leased Property and the construction of New Improvements (Fremont 3E) and all such Environmental Permits are in full force and effect;

 

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(iv) Lessee has not received any written notice of violation, alleged violation, noncompliance, liability or potential liability regarding environmental matters or compliance with Environmental Laws with respect to any Leased Property nor does the Lessee have knowledge or reason to believe that any such notice will be received or is being threatened; and

(v) no judicial proceedings or governmental or administrative action is pending, or, to the knowledge of the Lessee threatened, under any Environmental Law to which the Lessee has been or will be named as a party, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders, or other administrative or judicial requirements outstanding under any Environmental Law with respect to any Leased Property or operations of the Lessee with respect thereto.

(r) Accuracy and Completeness of Information . The written information, taken as a whole, furnished by or on behalf of the Lessee to the Lessor in connection with the negotiation of this Agreement and the other Operative Documents or delivered hereunder (as modified or supplemented by other information so furnished) does not contain any material misstatement of fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to the Construction Budget and any projected financial information, the Lessee represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.

(s) Subjection to Government Regulation . To the Lessee’s Actual Knowledge, the Lessor shall not be required to, solely by reason of entering into the Operative Documents or consummating any of the transactions contemplated thereby (other than upon the exercise by the Lessor of remedies under the Operative Documents), perform in its own capacity or on behalf of any other Person any obligations, instructions or other duties imposed by an Authority (except with respect to bank regulations and, if such Person shall have assumed operational control of any Leased Property, operating permit requirements for such Leased Property) as long as the Lessee is not in breach of any of the Operative Documents.

(t) Private Offering . The making of the Equity Investments and the interests in the Operative Documents under the circumstances contemplated hereby do not require the registration or qualification of such Equity Investments or interests under the Securities Act, any state securities laws or the Trust Indenture Act of 1939.

(u) The Leased Properties and the Sites .

(i) As of the Closing Date, the Lessee is not a party to any other contract or agreement to sell, transfer or encumber any interest in the Leased Property or the Site in which it has an interest or any part thereof other than pursuant to the Operative Documents;

(ii) each Site is described on Schedule IV to this Agreement and the New Improvements (Fremont 3E) to be constructed under the Construction Agency Agreement will be entirely on the related Site. Each Leased Property and any present use

 

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or construction and presently anticipated future use or construction thereof by the Lessee and its agents, assignees, employees, invitees, lessees, licensees and tenants comply with all Applicable Law (including planning, zoning and land use laws and Environmental Laws) and Insurance Requirements, except for such instances of non-compliance that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or that are inconsequential for the then current status of the construction of the New Improvements (Fremont 3E). No notices, complaints or orders of violation or non-compliance or liability have been issued or, to the best of its knowledge, threatened by any Authority with respect to any Leased Property or Site or the present or intended future use of any Leased Property or Site except for such violations and instances of non-compliance as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and Lessee is not aware of any circumstances which could give rise to the issuance of any such notices, complaints or orders;

(iii) with respect to any Unimproved Land, all Major Construction Documents that have been entered into explicitly allow for and will allow for the assignment or pledge of the rights of the Constructor thereunder, except for any such provision as has been waived by the appropriate Persons in accordance with the terms of such document. No default or event of default has occurred or is continuing under any Major Construction Document to which the Constructor or the Lessor is a party;

(iv) to the knowledge of Lessee, there is no action being taken by any Person with respect to any actual or pending Condemnation or Event of Taking, except as is being contested by Lessee in accordance with Section 13.6 of the Lease;

(v) the structures constructed as part of the Leased Property are in such condition that such structures at all times meet the standards which, in the given circumstances, each of them may be expected to meet so as not to constitute a danger for persons or things; and

(vi) the description of the Lessee Collateral sufficiently identifies such property to the extent required by Applicable Law in order to obtain a valid security interest therein.

(v) Taxes . On the Closing Date, to the Actual Knowledge of a Responsible Officer of the Lessee, the Lessor is not subject to any Taxes with respect to which the Lessee is obligated to indemnify the Lessor pursuant to Section 7.2(a)(ii) and no Indemnitee is subject to Withholding Taxes with respect to which the Lessee is obligated to indemnify such Indemnitee pursuant to Section 7.2(a)(iii), assuming that each Indemnitee complies with its obligations pursuant to Section 7.3.

(w) Foreign Assets Control Regulations, etc . The use of the proceeds of the Equity Investment will not violate the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto. Neither Lessee nor any investor therein is (i) on the SDNL, or (ii) in violation of any money laundering law, regulation or order including Executive Order No. 13244 on Terrorist Financing, effective

 

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September 24, 2001 and relating to Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56) (the “ USA PATRIOT Act ”).

SECTION 4.2. Representations and Warranties of the Lessor.

As of the Closing Date, the Lessor represents and warrants to Lessee as follows:

(a) Due Organization, etc . The Lessor is duly organized and validly existing under the laws of the State of Delaware and has the power and authority to enter into and perform its obligations as a Lessor under each Operative Document to which it is or is to be a party and each other agreement, instrument and document to be executed and delivered by it on or before the Closing Date in connection with or as contemplated by each such Operative Document to which it is or is to be a party.

(b) Due Authorization; Enforceability, etc . This Agreement and each other Operative Document to which the Lessor is or will be a party have been or will be (to the extent it is to be a party thereto in its individual capacity) duly authorized, executed and delivered by or on behalf of the Lessor (in its individual capacity) and are, or upon execution and delivery will be, legal, valid and binding obligations of the Lessor, enforceable against it in accordance with their respective terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws affecting creditors’ rights generally and by general equitable principles.

(c) ERISA . It is making its Equity Investment with assets that are not assets of any Employee Benefit Plan (or its related trust) which is subject to Title I of ERISA or Section 4975 of the Code.

(d) Lessor Liens . The Leased Property is free and clear of all Lessor Liens attributable to it and no act or omission by it has occurred which would cause a Lessor Lien attributable to it.

ARTICLE V

COVENANTS OF LESSEE

SECTION 5.1. Financial Reporting.

Information . The Lessee will deliver to the Lessor:

(a) as soon as available and in any event within one hundred and twenty (120) days after the end of each fiscal year of the Lessee, an audited consolidated balance sheet of the Lessee and its Consolidated Subsidiaries as of the end of such fiscal year and the related consolidated statements of income, of cash flows and of changes in stockholders’ equity for such fiscal year, setting forth in each case in comparative form the figures as of the end of and for the

 

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previous fiscal year, all in reasonable detail and reported on without qualification as to scope by Ernst & Young LLP or other independent public accountants of nationally recognized standing;

(b) as soon as available and in any event within sixty (60) days after the end of each of the first three quarters of each fiscal year of the Lessee, a consolidated balance sheet of the Lessee and its Consolidated Subsidiaries as of the end of such quarter, and the related consolidated statements of income for such quarter and for the portion of the Lessee’s fiscal year ended at the end of such quarter and the related consolidated statement of cash flows for the portion of the Lessee’s fiscal year ended at the end of such quarter, setting forth in each case in comparative form the consolidated balance sheet as of the end of the previous fiscal year and the consolidated statements of income for the corresponding quarter and the corresponding portion of the Lessee’s previous fiscal year, all certified (subject to normal year-end adjustments) as to fairness of presentation and consistency by the Financial Officer of the Lessee;

(c) simultaneously with the delivery of each set of financial statements referred to in Sections 5.1(a) and (b), a certificate of the Financial Officer of the Lessee stating whether there exists on the date of such certificate any Construction Event of Default or Event of Default and, if any circumstance then exists, setting forth the details thereof and the action that the Lessee is taking or proposes to take with respect thereto;

(d) within five (5) Business Days after any Responsible Officer of the Lessee obtains Actual Knowledge of any Construction Default, Construction Event of Default, Default or Event of Default, if such Construction Default, Construction Event of Default, Default or Event of Default is then continuing, a certificate of the Financial Officer of the Lessee setting forth the details thereof and the action that the Lessee is taking or proposes to take with respect thereto;

(e) promptly after the sending or filing thereof, copies of all such financial statements, proxy statements, notices and reports which the Lessee or any Subsidiary sends to its public stockholders, and copies of all reports and registration statements (without exhibits) which the Lessee or any Subsidiary files with the Securities and Exchange Commission (or any governmental body or agency succeeding to the functions of the Securities and Exchange Commission) or any national securities exchange;

(f) promptly upon the filing thereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent), annual, quarterly or monthly reports and any reports on Form 8-K (or any successor form) that the Lessee or any Consolidated Subsidiary shall have filed with the Securities and Exchange Commission;

(g) as soon as available and in any event within thirty (30) days after Lessee or any ERISA Affiliate (i) gives notice to the PBGC of any “reportable event” (as defined in Section 4043 of ERISA) with respect to any Plan which might constitute grounds for a termination of such Plan under Title IV of ERISA, or knows that the plan administrator of any Plan has given notice of any such reportable event, a copy of the notice of such reportable event given to the PBGC; (ii) receives notice of complete or partial withdrawal liability under Title IV of ERISA which liability exceeds $50,000,000 or notice that any Multiemployer Plan is in

 

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reorganization, is insolvent or has been terminated, a copy of such notice; (iii) receives notice of demand for liability from the PBGC or notice from the PBGC under Title IV of ERISA of an intent to terminate, impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or appoint a trustee to administer, any Plan, a copy of such notice; (iv) applies for a waiver of the minimum funding standard under Section 412 of the Code, a copy of such application; (v) gives notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and other information filed with the PBGC; or (vi) gives notice of withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such notice;

(h) as soon as practicable after a Principal Officer of the Lessee obtains knowledge of the commencement of an action, suit or proceeding against the Lessee or any Subsidiary before any court or arbitrator or any governmental body, agency or official in which there is a reasonable likelihood of an adverse decision which could reasonably be expected to have a Material Adverse Effect or which in any manner questions the validity or enforceability of this Agreement or any of the transactions contemplated hereby, information as to the nature of such pending or threatened action, suit or proceeding; and

(k) from time to time such additional information regarding the business, properties, financial position, results of operations, or prospects of the Lessee or any Subsidiary as the Lessor may reasonably request; provided such information is in Lessee’s possession or obtainable using commercially reasonable efforts.

Documents required to be delivered pursuant to clauses (a) and (b) of this Section 5.1 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Lessee posts such documents, or provides a link thereto, on the Lessee’s website, or (ii) on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System.

SECTION 5.2. Affirmative Covenants of Lessee.

Lessee covenants and agrees with the Lessor that during the Lease Term, the Lessee shall comply with the following provisions of this Section 5.2:

(a) Payment of Obligations . The Lessee will pay and discharge, and will cause each of its Subsidiaries to pay and discharge, at or before maturity, all of their respective material obligations and liabilities and all lawful taxes, assessments and governmental charges or levies upon it or its property or assets, except where the same may be diligently contested in good faith by appropriate proceedings or where the failure to so pay and discharge could not be reasonably expected to have a Material Adverse Effect, and will maintain, and will cause each of its Subsidiaries to maintain, in accordance with GAAP as in effect from time to time, appropriate reserves for the accrual of any of the same.

(b) Maintenance of Property; Insurance .

(i) The Lessee will keep, and will cause each Subsidiary to keep, all material property useful and necessary in its business in good working order and

 

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condition, normal wear and tear excepted, except to the extent any such property is replaced or discarded in the ordinary course of Lessee’s business.

(ii) The Lessee will, and will cause each of its Subsidiaries to, maintain (either in the name of the Lessee or in such Subsidiary’s own name) with financially sound and responsible insurance companies, insurance on all their respective properties in at least such amounts and against at least such risks (and with such risk retention) as are usually maintained in the same general area by companies of established repute engaged in the same or a similar business; and will furnish to the Lessor upon request therefor information presented in reasonable detail as to the insurance so carried.

(c) Inspection of Property, Books and Records . The Lessee will keep, and will cause each of its Subsidiaries to keep, proper books of record and account in which full, true and correct entries, in all material respects, shall be made of all dealings and transactions in relation to its business and activities. Subject to Section 8.16 hereof and Article XV of the Lease, the Lessee will permit, and will cause each of its Subsidiaries to permit, representatives of the Lessor to visit and inspect any of their respective properties, to examine their respective corporate, financial and operating records and make copies thereof or abstracts therefrom, and to discuss their respective affairs, finances and accounts with their respective directors, officers, employees and independent public accountants ( provided that the Lessee shall have the right to participate in any discussions with such accountants), all at such reasonable times and as often as may reasonably be desired, upon reasonable advance notice to the Lessee.

(d) Maintenance of Existence, Rights, Etc .

The Lessee will preserve, renew and keep in full force and effect its, and will cause each of its Subsidiaries to preserve, renew and keep in full force and effect their respective, corporate or partnership existence and its and their respective rights, privileges and franchises necessary or desirable in the normal conduct of business, except when failure to do so could not be reasonably expected to have a Material Adverse Effect; provided that nothing in this Section 5.2(d) shall prohibit (i) a transaction permitted under Section 5.3 or (ii) the termination of the corporate or partnership existence of any Subsidiary if the Lessee in good faith determines that such termination is in the best interest of the Lessee and could not be reasonably expected to have a Material Adverse Effect.

(e) Use of Proceeds . The proceeds of the Advances under this Agreement will be used by the Lessee or the Constructor, as applicable, for the purposes set forth under Section 3.5 hereof.

(f) Compliance with Laws . The Lessee will comply, and cause each of its Subsidiaries to comply, in all material respects with all requirements of Applicable Law (including ERISA, Environmental Laws and the rules and regulations thereunder), except where failure to so comply could not be reasonably expected to have a Material Adverse Effect. Lessee shall promptly notify the Lessor should it or any of its Subsidiaries be named on the SDNL and shall promptly take efforts to cause such entity to be removed from such list.

 

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(g) Further Assurances . The Lessee will, upon the request of the Lessor, (i) execute, acknowledge, deliver and record or file such further instruments and do such further acts as may be reasonably necessary to carry out more effectively the purposes of the Operative Documents and to subject to any of the Operative Documents any property intended by the terms thereof to be covered thereby, including specifically, but without limitation, any renewals, additions, substitutions, replacements or appurtenances to any Leased Property; (ii) execute, acknowledge, deliver, procure and record or file any document or instrument reasonably requested by the Lessor to protect its rights in and to any Leased 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 the Lessor to comply with the requirements or requests of any agency or authority having jurisdiction over it; provided none of the foregoing expose the Lessee to increased liability under the Operative Documents.

(h) Estoppels . Upon request by the Lessor, not more than one time per calendar quarter (except following an election of a Return Option with respect to a Leased Property in which event there shall be no limitation), a statement in writing certifying that the Operative Documents are unmodified and in full effect (or, if there have been modifications, that the Operative Documents are in full effect as modified, and setting forth such modifications) and either stating that (to the best knowledge of the Lessee) no default exists under the Operative Documents or specifying each such default; it being intended that any such statement by the Lessee may be relied upon by any prospective purchaser or mortgagee of any Leased Property or any Person who may become the Lessor; and

(i) USA PATRIOT Act . The Lessee acknowledges that the Lessor may be required, pursuant to the USA PATRIOT Act, to obtain, verify, record and disclose to law enforcement authorities information that identifies the Lessee, including the name and address of the Lessee. The Lessee will provide to the Lessor any such information they may request pursuant to the USA PATRIOT Act, and the Lessee agrees that the Lessor may disclose such information to law enforcement authorities if the authorities make a request or demand for disclosure pursuant to the USA PATRIOT Act. The Lessee also acknowledges that, in such event the Lessor may not be required or even permitted by the USA PATRIOT Act to notify the Lessee of the request or demand for disclosure.

SECTION 5.3. Negative Covenants of the Lessee.

Lessee covenants and agrees with the Lessor that during the Lease Term, the Lessee shall not, without the prior written consent of the Lessor, do or permit any of its Subsidiaries to do any of the following:

(a) Merger and Consolidation. Merge with or into or consolidate with or into another Person, except that, subject to any other applicable restrictions in the Operative Documents (including restrictions against sales or transfers of a Leased Property):

(i) any Subsidiary may merge or consolidate with any other Subsidiary, and any Subsidiary may merge into the Lessee; and

 

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(ii) the Lessee may merge or consolidate with any other Solvent corporation, if:

(1) after giving effect to and immediately following such merger or consolidation, no Default or Event of Default occurs or is continuing;

(2) the surviving corporation, if a corporation other than Lessee, is not a Prohibited Person and assumes the obligations of Lessee hereunder; and

(3) after giving effect to and immediately following such merger or consolidation, the Lessor retains all of its interests in and benefits of the Cash Collateral and receives prior certification thereof from the Lessee and such other evidence thereof as the Lessor may reasonably request.

(b) Change in Nature of Business. Make or do anything that would result in a material change in the nature of the business of the Lessee and its Subsidiaries, taken as whole, as carried on at the Closing Date by the original Lessee.

(c) Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of all or substantially all of its assets (in a single transaction or series of related transactions), except that, subject to any other applicable restrictions in the Operative Documents:

(i) any Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets to the Lessee or to another Subsidiary; and

(ii) any Subsidiary may sell or otherwise dispose of all or substantially all of its assets if:

(1) after giving effect to the sale or other disposition, the financial condition of the Lessee and its Subsidiaries, taken as a whole, is not materially impaired;

(2) after giving effect to and immediately following such sale or other disposition, no Default or Event of Default occurs or is continuing; and

(3) after giving effect to and immediately following such sale or other disposition, the Lessor retains all of its interests in and benefits of the Cash Collateral and receives prior certification thereof from the Lessee and such other evidence thereof as the Lessor may reasonably request.

(d) Use of Proceeds . Use any part of the proceeds of the Equity Investment, whether directly or indirectly, in a manner that violates Regulation U or X of the F.R.S. Board. The Lessee will not permit more than 25% of the consolidated assets of the Lessee and its

 

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Consolidated Subsidiaries to consist of “margin stock,” as such term is defined in Regulation U of the F.R.S. Board.

(e) Transactions with Affiliates . Enter into any transaction of any kind with any Affiliate of the Lessee, other than upon fair and reasonable terms as could reasonably be obtained in an arm’s-length transaction with a Person that is not an Affiliate in accordance with prevailing industry customs and practices; provided the foregoing shall not apply between and among Lessee and its Subsidiaries.

(f) Prohibited ERISA Transaction. Enter into any transaction which would cause any of the Operative Documents or any related documents executed or accepted by the Lessor (or any exercise of the Lessor rights hereunder or thereunder) to constitute a non-exempt prohibited transaction under ERISA (a “ Prohibited ERISA Transaction ”); provided , that it shall not constitute a breach of this Section 5.3(f) if a Prohibited ERISA Transaction occurs by reason of any of the funds used by the Lessor in connection with any of the transactions under the Operative Documents constituting assets of a “benefit plan investor” as defined in 29 C.F.R. Section 2510.3-101, as modified by Section 3(42) of ERISA.

SECTION 5.4. Covenants Related to Leased Property, Overall Transaction.

(a) Investigation and Litigation . Lessee shall deliver a written notice to the Lessor promptly upon the Lessee’s receiving notice, or upon the Lessee’s obtaining Actual Knowledge, of the intent by an Authority to (i) take an action which would constitute a Condemnation or Event of Taking, (ii) investigate the Leased Property or the Site or other land on which any portion of the Leased Property has been constructed for a material violation of any Applicable Law (including any Environmental Law) on or in respect of the Improvements or any portion thereof, or (iii) investigate the Leased Property or the Site or other land on which any portion of the Leased Property has been constructed (other than routine fire, occupational health and safety and similar inspections) for any violation of Applicable Law under which civil liability in excess of $25,000,000 or criminal liability may be incurred or imposed upon the Lessor or the Lessee.

(b) Notices . The Lessee shall provide prompt (but in no event later than ten (10) Business Days after the Lessee obtains Actual Knowledge thereof) telephonic (confirmed in writing) or written notice of:

(i) the commencement of all proceedings and investigations by or before any Authority and all actions and proceedings in any court or before any arbitrator against or involving the Lessee or any of the Leased Property or the Site or other land on which any portion of the Leased Property has been constructed (A) which in the reasonable judgment of the Lessee could reasonably be expected to have a Material Adverse Effect or (B) with respect to any Operative Document; and

(ii) the occurrence of any event which constitutes, or which could reasonably be expected to result in, a Construction Event of Default, an Event of Default or an Event of Loss.

 

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(c) Securities . Lessee shall not, nor shall it permit anyone (other than the Lessor) authorized to act on its behalf to, take any action which would subject the issuance or sale of the Equity Investment, the Leased Property or the Operative Documents, or any security or lease the offering of which, for purposes of the Securities Act or any state securities laws would be deemed to be part of the same offering as the offering of the aforementioned items, to the registration requirements of Section 5 of the Securities Act or any state securities laws.

ARTICLE VI

OTHER COVENANTS; ASSIGNMENTS

SECTION 6.1. Cooperation with Lessee.

The Lessor shall, to the extent reasonably requested by the Lessee (but without assuming additional liability on account thereof), as a Transaction Cost or as a Construction Cost before the Completion Date, as applicable, and at the Lessee’s expense thereafter, cooperate to allow the Lessee to (a) perform its covenants contained in the Construction Agency Agreement including at any time and from time to time, upon the reasonable request of the Lessee, to promptly and duly execute and deliver any and all such further instruments, documents and financing statements (and continuation statements related thereto) as the Lessee may reasonably request in order to perform such covenants and (b) further the Lessee’s requirements as lessee of each Leased Property including to file any statement with respect to any tax abatements or other requirements; provided none of the foregoing expose the Lessor to increased liability under the Operative Documents.

SECTION 6.2. Covenants of the Lessor.

(a) Discharge of Liens . The Lessor will not create or permit to exist at any time, and will promptly take such action as may be necessary duly to discharge, or to cause to be discharged, all Lessor Liens attributable to it and will cause restitution to be made to the Lessee (as its interests may appear) in the amount of any diminution of the value of the affected Leased Property as a result of its failure to comply with its obligations under this Section 6.2(a). Notwithstanding the foregoing, the Lessor shall not be required to so discharge any such Lessor Lien while the same is being contested by a Permitted Contest, made in good faith by appropriate proceedings diligently prosecuted so long as such proceedings shall not involve any meaningful danger of the sale, forfeiture, loss or diminution in value of, and shall not interfere with the use, operation or disposition of, any part of the affected Leased Property, any Lease or title thereto or any interest therein or the payment of Rent payable under any Lease; provided , however , that the Lessor shall discharge any such Lessor Lien attributable to it, whether or not subject to contest as provided above, upon the purchase of such Leased Property by the Lessee pursuant to the related Lease or a sale of such Leased Property pursuant to the Return Option.

(b) Change of Information . Lessor shall give prompt notice to the Lessee if any facts regarding it shall change where such change might reasonably affect its interests in any Leased Property.

 

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(c) Depreciation . Prior to the termination of any Lease, the Lessor shall not claim any United States federal, state, or local tax attributes or benefits as the owner for tax purposes (including depreciation) relating to such Leased Property unless required to do so by an appropriate taxing Authority or after a clearly applicable change in Applicable Law or as a protective response to a proposed adjustment by an Authority; provided , however , that if an appropriate taxing authority shall require the Lessor to claim any such United States federal, state, or local tax attributes or benefits, such Person shall promptly notify the Lessee thereof and shall permit the Lessee to contest such requirement in a manner similar to the contest rights provided in, and subject to any applicable limitation to a contest contained in, Section 7.2(b) hereof.

(d) Quiet Possession . If and so long as no Construction Event of Default or Event of Default, as applicable, shall have occurred and be continuing, the Lessor agrees that it shall not interfere with the Lessee’s right to the use, possession and quiet enjoyment of the Leased Property and the Site according to the terms hereof and of the other Operative Documents.

(e) Assignment of Warranties and Other Rights and Appointment of Constructor as Agent .

(i) Lessor hereby assigns to the Constructor, as its construction agent, all of its rights, if any (including indemnification rights and rights to receive payments), under any and all warranties of, and other claims against, dealers, manufacturers, vendors, suppliers, installers, contractors or subcontractors relating to the Equipment. If the Lessor is contractually or legally prohibited from so assigning any such warranty, indemnity or claim, the Lessor hereby assigns to the Constructor, to the extent permitted by Applicable Law, its beneficial interest in such warranty, indemnity or claim. Except as set forth below, Lessor hereby irrevocably appoints the Constructor as its attorney-in-fact and agent with full authority in its place and stead and in the Lessor or otherwise from time to time to assert and enforce (including compromise, waiver or settlement thereof) whatever claims and rights the Lessor may have against suppliers, dealers, manufacturers, vendors, contractors and subcontractors relating to the Equipment or any component thereof, whether under warranty, product liability claim or otherwise.

(ii) Upon the occurrence of (A) an Event of Default and (B) either (1) the Lessor’s election to take possession of the Improvements or (2) its express termination of the agency relationship between itself and the Constructor, the power of attorney granted pursuant to Section 6.2(e)(i) shall terminate and the Constructor shall, without further act on its part, be deemed to have reassigned to the Lessor (A) all of the rights and claims held by the Constructor under this subsection relating to such Equipment that arise after such taking of possession or termination of the agency relationship and (B) a share of such rights and claims held by the Constructor under this subsection relating to such Equipment that arise before such taking of possession or termination of the agency relationship to the extent that the claims relate to effects that continue after such taking of possession, apportioned by the parties on a reasonable basis between the Constructor and the Lessor, taking all relevant factors into account.

 

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(iii) Except during the continuance of a Construction Event of Default or an Event of Default, the Lessor agrees to remit to the Lessee any rebates, refunds or like payments received from dealers, manufacturers, vendors or suppliers of the Equipment as and when received from such Persons. Any such rebates, refunds or like payments shall not affect in any manner the amounts owing or the payments to be made by the Lessee hereunder.

(f) Insurance Covenants . The Lessor hereby accepts all covenants between the Lessee and each insurer made in accordance with the terms of the Operative Documents for their respective benefit, including, but not limited to, the naming of the Lessor as an additional insured or as loss payee, as the case may be.

(g) Further Assurances . Upon the written request of Lessee delivered at least thirty (30) days prior to the date specified in such request for a restructuring of the Overall Transaction, as a result of a change or proposed change in the applicable accounting rules, the Lessor agrees to cooperate with the reasonable requests of Lessee promptly and in good faith to negotiate with a view toward causing a restructuring of the obligations represented by the Lease and the other Operative Documents, provided Lessee shall reimburse the Lessor for its out-of-pocket expenses incurred in connection with any such written request including the reasonable and properly documented fees and expenses of its legal counsel. In the event any such restructuring involves a change in the nature and scope of the Lessor’s obligations under the Operative Documents and does not involve a transfer by the Lessor of its interest in any Improvements or any Site, the Lessee and the Lessor shall agree upon a reasonable and appropriate amount to be paid to the Lessor as reimbursement for reasonable, out-of-pocket personnel expenses incurred by the Lessor in such restructuring. Notwithstanding any of the foregoing negotiations, neither Lessor nor Lessee shall be obligated to restructure the transaction.

(h) Lessor Letters . Lessor shall furnish to the Lessee promptly, but in any event within thirty (30) days after the end of each calendar quarter, a letter indicating that the assets held by Lessor under any lease to the Lessee or any of its Consolidated Subsidiaries (i) are not financed on a non-recourse basis or otherwise held in a “silo”, and (ii) constitute less than half of Lessor’s assets on a fair market value basis.

SECTION 6.3. Assignments.

(a) Restrictions on Transfers . Except by a Permitted Transfer, Lessor will not assign, transfer, mortgage, pledge, encumber or hypothecate the Leases or the other Operative Documents or any interest of Lessor in and to the Leased Property during the Lease Term without the prior consent of Lessee, which consent Lessee may withhold in its sole discretion.

(b) Effect of Permitted Transfer or other Assignment by Lessor . If by a Permitted Transfer Lessor sells or otherwise transfers any portion of the Leased Property and assigns to the transferee all of Lessor’s rights under the Leases and under the other Operative Documents, and if the transferee expressly assumes all of Lessor’s obligations under the Leases and under the other Operative Documents, then Lessor will thereby be released from any obligations arising after such assumption under the Leases or under the other Operative

 

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Documents, and Lessee must look solely to each successor in interest of Lessor for performance of such obligations.

(c) Exceptions to Restrictions . Notwithstanding anything to the contrary contained in this Section 6.3, when an Event of Default has occurred and is continuing, no consent of the Lessee shall be required in respect of an assignment by the Lessor of all or any part of its rights and obligations under or with respect to the Leases and the other Operative Documents to any third party (whether or not a Permitted Transfer), provided , that unless (i) an Event of Default described in clause (h) or (i) of the definition thereof shall have occurred and be continuing, (ii) the Lease Balance shall have been accelerated in accordance with the Lease, (iii) an Event of Default shall have occurred and be continuing at the Final Maturity Date, or (iv) a Force Majeure Event shall have occurred and be continuing during the Interim Term, in each case under any Lease, Lessor shall not make such an assignment to a Person who fails to deliver not less than ten (10) days prior to such assignment a letter to Lessee covering the substance required by Section 3.2(d) hereof.

SECTION 6.4. Participations.

The Lessor may sell, transfer or assign a participation in all or a portion of the interests represented by its Equity Investment or any right to payment thereunder (each such sale, transfer or assignment of a participation in such interests or rights, a “ Participation ”), to any Person (a “ Participation Holder ”) upon prior notice to the Lessee. In the event of any such sale by the Lessor of a Participation to a Participation Holder, the obligations of Lessor under this Agreement and under the other Operative Documents shall remain unchanged, Lessor shall remain solely responsible for the performance thereof, Lessor shall remain the holder of the Equity Investment for all purposes under this Agreement and under the other Operative Documents and the Lessee shall continue to deal solely and directly with the Lessor in connection with Lessor’s rights and obligations under this Agreement and the other Operative Documents. Any agreement pursuant to which the Lessor may grant such a Participation shall provide that Lessor shall retain the sole right and responsibility to enforce the obligations of the Lessee under the Operative Documents including, without limitation, the right to approve any amendment, modification or waiver of any provision of the Operative Documents; provided , that such agreement may require Lessor to obtain the consent of the Participation Holder party thereto before Lessor enters into or approves any amendment, modification or waiver of any provision of any Operative Document that, among other things, (i) extends any date upon which any payment of money is due to the Lessor, (ii) reduces the Yield on the Equity Investment, any fee or any other payment obligation under the Operative Documents, (iii) releases any party from any payment obligations, or (iv) releases any interest of the Lessor in any Leased Property (except as otherwise expressly provided for in any Operative Document). If the Lessor sells, transfers or assigns a Participation pursuant hereto, the Lessor hereby agrees to indemnify, protect, defend and hold harmless the Lessee, on a Grossed-Up Basis, against any United States federal or state Withholding Tax which may arise from its Participation, except to the extent such Withholding Tax is imposed on the Lessee as a result of the fraud, gross negligence or willful misconduct of the Lessee. Any such Participation shall be at no cost to the Lessee.

 

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ARTICLE VII

INDEMNIFICATION AND ADDITIONAL PAYMENTS

SECTION 7.1. General Indemnification.

(a) Subject to clauses (b) and (f) below, the Lessee will indemnify, defend and hold each Indemnitee harmless, on a Grossed-Up Basis, from and against any and all Claims (which may include the outstanding Lease Balance or any portion thereof subject to any limitations set forth in the Operative Documents, including, without limitation, payments limited to the Recourse Deficiency Amount or Construction Recourse Amount, as applicable) that directly or indirectly relate to, result from or arise out of or are alleged to relate to, result from or arise out of any of the following (whether or not any such Indemnitee is indemnified as to such matter by any other Person and whether or not such Claim arises or accrues prior to the Closing Date, the Completion Date or after the Lease Expiration Date):

(i) each Leased Property, each Site, the Lessee Collateral or, in each case, any part thereof;

(ii) any of the Operative Documents or any of the transactions contemplated thereby, or any investigation, litigation, enforcement or proceeding in connection therewith, and any amendment, modification or waiver in respect thereof;

(iii) the regulation of the ownership, construction, installation, leasing, use or operation of each Leased Property, each Site or any part thereof, but only to the extent that the Indemnitee is subjected to such regulation as a result of its being a party to or beneficiary of the Operative Documents or its involvement in the transactions contemplated in the Operative Documents;

(iv) the offer, financing, refinancing, inspection, mortgaging, pledging, granting of a security interest in, design, manufacture, construction, purchase, ownership, acquisition, acceptance, rejection, delivery, nondelivery, redelivery, possession, transportation, lease, sublease, installation, condition, transfer of title or other ownership interest, rental, use, operation, storage, maintenance, modification, alteration, repair, assembly, sale, return, abandonment or other application or disposition of all or any part of each Leased Property or any product produced therewith, each Site or any interest therein or improvements thereto or the failure to perform or accomplish any of the foregoing in accordance with the requirements of the Operative Documents, other agreements governing such matters or Applicable Laws or Regulations including, without limitation, Claims or penalties arising from any violation of law or in tort (strict liability or otherwise), latent or other defects, whether or not discoverable, any Claim based upon a violation or alleged violation of the terms of any restriction, easement, condition or covenant or other matter affecting title to a Leased Property or a Site, the making of any Alterations in violation of any standards imposed by any insurance policies required to be maintained by the Lessee pursuant to the Lease which policies are in effect at any time with respect to a Leased Property or any part thereof, any Claim for patent, trademark or copyright infringement, and Claims arising from any public improvements with respect to

 

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a Leased Property or a Site resulting in any change or special assessments being levied against such Leased Property or such Site or any plans to modify, widen or realign any street or highway adjacent to any Leased Property or any Claim for utility “tap-in” fees;

(v) a breach by the Lessee of any of its covenants under any Operative Document, or a misrepresentation by the Lessee (including any omission by Lessee that makes any representation made by Lessee materially misleading) in any Operative Document or in any certificate or other document delivered by the Lessee to the Lessor pursuant to any Operative Document, or the occurrence of any Default or Event of Default, or the material inaccuracy of any information provided by any such party to any third party in connection with the preparation by such third party of a report or other document required to be delivered pursuant to any Operative Document;

(vi) the existence of any Lien on or with respect to any Leased Property, any Site, title thereto, any interest therein or any Interim Rent, Basic Rent or Supplemental Rent, including any Liens which arise out of the possession, use, occupancy, construction, repair or rebuilding of any Leased Property or any Site or by reason of labor or materials furnished or claimed to have been furnished to the Lessee, or any of its contractors or agents or by reason of the financing of any personality or equipment purchased or leased by the Lessee or Alterations constructed by the Lessee, except Liens in favor of the Lessee or the Lessor, but expressly excluding any Lessor Liens; and

(vii) any Environmental Claim.

Lessee shall be entitled to credit against any payments due to an Indemnitee under this Section 7.1 both (x) any insurance recoveries received by such Indemnitee in respect of the matters described herein under or from insurance paid for by any Person other than the Indemnitee or an Affiliate thereof or assigned to the Lessor by the Lessee and (y) any other indemnity amount received by such Indemnitee in respect of such matters from a Person (other than the Lessor) unrelated to such Indemnitee.

(b) Exclusions . The provisions of Section 7.1(a) shall not apply to any Claim:

(i) with respect to the Indemnitees, to the extent attributable to the willful misconduct or gross negligence of, or negligence in the handling of funds by, such Indemnitee, its officers, agents, employees and Affiliates or the breach in any material respect of any representation made by any Indemnitee under the Operative Documents;

(ii) to the extent attributable to acts or events that occur after the commencement of day to day operation of any Improvements by the Lessor or any Person designated by the Lessor following an Event of Default or the return of a Leased Property pursuant to the Return Option as such Claim relates to such Improvements or Leased Property (except (A) to the extent fairly attributable to circumstances existing or acts, events, liabilities or damages occurring or accruing prior to such day to day operation, or (B) to the extent relating to the acts or omissions of the Lessee or any other LAM Person in relation to, or liabilities arising out of, the location, structure, installation,

 

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putting into service, operation, repair, servicing, maintenance, replacement or dismantling of such Improvements or remaining on or the entering onto such Site or such Improvements by any such Person); or

(iii) in respect of Taxes, which are governed by Section 7.2, other than a payment necessary to make payments under this Section 7.1 on a Grossed-Up Basis.

(c) Contests. In respect of the indemnification provided under Section 7.1(a), promptly after receipt by an Indemnitee of notice of any pending or threatened Claim, such Indemnitee shall, if a claim for indemnification in respect thereof is to be made against the Lessee, give notice thereof to the Lessee. So long as no Event of Default is continuing, the Lessee, at its own expense, may elect to assume the defense of any such Claim through its own counsel, which shall be subject to the reasonable approval of the Indemnitee, on behalf of the Indemnitee (with full right of subrogation to the Indemnitee’s rights and defenses). Lessee must indicate its election to assume such defense by written notice to the Indemnitee within thirty (30) days following receipt of Indemnitee’s notice of the Claim, or in the case of a third- party claim which requires a shorter time for response then within such shorter period as specified in the Indemnitee’s notice of Claim; provided that such Indemnitee has given the Lessee notice thereof. If the Lessee denies liability or fails to respond to the notice within the time period set forth above, the Indemnitee may defend or compromise the Claim as it deems appropriate without prejudice to any of Indemnitee’s rights hereunder. If the Lessee shall have elected to assume the defense of any such Claim, then upon the request of the Lessee, the Indemnitee requesting payment of indemnity under Section 7.1(a) shall promptly furnish the Lessee with copies of any records or documents pertaining to the matter to be indemnified and, to the extent known by such Indemnitee, a reasonably detailed explanation of the circumstances giving rise to the claim of indemnification and the determination of the amount of the requested indemnity payment. Upon payment in full to Indemnitee of any indemnity pursuant to Section 7.1(a), the Lessee shall be subrogated to any right of Indemnitee in respect of the matter against which such indemnity has been paid. If the Lessee shall have elected to assume the defense of any such Claim, upon the written request at any time and from time to time of the Lessee, Indemnitee shall, at the expense of the Lessee, take such reasonable actions and execute such documents as are necessary or reasonably appropriate to assist the Lessee in the preservation and enforcement against third parties of the Lessee’s right of subrogation hereunder. The Indemnitee may employ separate counsel in any such Claim and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnitee unless the Indemnitee and the Lessee shall have been advised by counsel that there exists an irresolvable conflict of interest in such counsel’s representation of the Indemnitee and the Lessee in which case the fees and expenses of such separate counsel shall be for the account of the Lessee. All reasonable out-of-pocket fees and expenses shall be paid periodically as incurred. So long as no Construction Event of Default or Event of Default shall have occurred and be continuing, the Lessee shall not be liable for any settlement of any such Claim effected without its consent unless the Lessee shall fail to, or elect in writing not to, assume the defense thereof in which case the Indemnitee, without waiving any rights to indemnification hereunder, may defend such Claim and enter into any good faith settlement thereof without the prior written consent of the Lessee. Lessee shall not, without the prior written consent (not to be unreasonably withheld) of the Indemnitee, effect any settlement of any such Claim unless such settlement includes an unconditional release of the Indemnitee

 

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from all liabilities that are the subject of such Claim. The parties agree to cooperate in any defense or settlement of any such Claim and to give each other reasonable access to all information relevant thereto subject to appropriate confidentiality agreements. The parties will similarly cooperate in the prosecution of any claim or lawsuit against any third party.

(d) Subrogation . Upon the indefeasible payment in full of any Claim pursuant to this Section 7.1, the Lessee, without any further action, shall be subrogated to any claims the Indemnitee may have relating thereto. The Indemnitee agrees, at the Lessee’s expense, to give such further assurances or agreements and to cooperate with the Lessee to permit the Lessee to pursue such claims, if any, to the extent reasonably requested by the Lessee. If the Lessee shall have paid an amount to or for an Indemnitee pursuant to this Section 7.1, and such Indemnitee subsequently shall be reimbursed in respect of such indemnified amount from any other Person, such Indemnitee shall promptly pay the Lessee, but not before the Lessee shall have made all payments then due to such Indemnitee pursuant to this Section 7.1 and any other payments then due hereunder and under any other Operative Document, the amount of such reimbursement, including interest actually received attributable thereto, net of Taxes required to be paid by such Indemnitee as a result of any refund received, after giving effect to such payment to the Lessee.

(e) Not Residual Guaranty . Nothing in this Section 7.1 shall be construed as a guaranty of residual value of any Leased Property.

(f) Limitation .

(i) Solely with respect to any Construction of New Improvements (Fremont 3E) on Unimproved Land and not with respect to any other Leased Property or Lease thereof, during the related Construction Period, the provisions of Sections 2.9(c) and (d), 2.10, 7.1, 7.2 and 7.4 shall be subject to the following provisions: Lessee shall only be required to indemnify the Indemnitee for the following, without duplication:

(1) Claims caused by or resulting from a Specified Event;

(2) Claims caused by or resulting from the failure to Complete construction of the New Improvements (Fremont 3E) when required; provided , however , that recourse to the assets of the Lessee for any Claims solely relating to the failure to Complete construction of the New Improvements (Fremont 3E) when required shall be limited to the extent recourse against assets of the Lessee is limited by Section 18.5 of the Lease; and

(3) Claims arising under Sections 2.9(c) and (d), 2.10 and 7.1 and Taxes to be paid or indemnified under Sections 7.2 and 7.4; provided , however , that such Claims under this clause (3) will only be funded out of proceeds of Advances pursuant to Section 7.1(f)(iii) below.

(ii) The limitations set forth in Section 7.1(f)(i) shall continue to apply on and after the Completion Date for such New Improvements (Fremont 3E) with respect

 

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to Claims accruing prior to such Completion Date. Subject to Section 8.11, the Lessor will, with respect to Claims of a type described in Section 7.1(f)(i) above, indemnify Affiliates who would have otherwise been indemnified by the Lessee, to the extent such Persons would have been so indemnified but for the limitation set forth in the definition of “Indemnitee”; provided , however , that any obligation of the Lessor pursuant to this subsection shall be discharged solely and exclusively from amounts received by the Lessor from the Lessee pursuant to this subsection or, in the case of clause (f)(i)(3) above, the proceeds of the applicable Advances. Lessee agrees that any claim for indemnification by any Affiliate against the Lessor pursuant to and permitted by this clause (ii) shall constitute a Claim entitling the Lessor to be indemnified by the Lessee pursuant to Section 7.1 of this Agreement.

(iii) Any Claims or Taxes which are paid subject to Section 7.1(f)(i)(3) or the portion thereof which are subject to Section 7.1(f)(i)(2) for which Lessee is not obligated to indemnify such Indemnitee pursuant to this Section by virtue of the provisions of Section 7.1(f)(i) shall, if requested in writing by the Lessor in its sole discretion, be capitalized and result in an increase to the Construction Costs for such New Improvements (Fremont 3E) (such claims herein called “ Funded Claims ”). In the event Funded Claims are advanced by the Lessor hereunder, any increase in Lease Balance resulting therefrom shall not be included for purpose of (but for no other purpose) (x) calculating Eligible Construction Costs of such New Improvements (Fremont 3E) solely for purposes of calculating the Construction Recourse Amount, and (y) calculating Eligible Construction Costs of such New Improvements (Fremont 3E) solely for purposes of calculating the Recourse Deficiency Amount payable by Lessee following an election to return such Leased Property at the end of the applicable Lease Term. The foregoing indemnities are in addition to, and not in limitation of, the indemnities with respect to Sections 7.1 and 7.2 this Agreement.

SECTION 7.2. General Tax Indemnity.

(a) (i) Tax Indemnity . Lessee shall pay on a Grossed-up Basis, and on written demand shall indemnify and hold each Indemnitee at all times harmless from and against, any and all Taxes actually imposed on, or borne by, such Indemnitee, on or with respect to any Indemnitee, each Leased Property or the Lessee or any sublessee or user of any Leased Property by any taxing Authority, in connection with or in any way relating to: (A) the acquisition, design, construction, preparation, installation, inspection, delivery, non-delivery, acceptance, rejection, purchase, ownership, possession, rental, lease, sublease, repossession, maintenance, repair, alteration, modification, addition, substitution, storage, transfer of title, redelivery, use, financing, refinancing, operation, condition, repurchase, sale, return or other application or disposition of all or any part of each Leased Property or the imposition of any Lien (or incurrence of any liability to refund or pay over any amount as a result of any Lien) thereon; (B) the payment of Interim Rent, Basic Rent or Supplemental Rent or the receipts or earnings arising from or received with respect to each Leased Property or any part thereof, or any interest therein; (C) the payment of any other amount pursuant to the Equity Investment or any other Operative Documents; (D) each Leased Property or any part thereof or any interest therein or the property or the income or other proceeds with respect thereto; (E) the execution, delivery, filing,

 

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registration or recording of any of the Operative Documents and any amendments and supplements thereto; and (F) otherwise with respect to or in connection with the transactions contemplated by the Operative Documents or the enforcement thereof;

provided , however , that the indemnification obligation of this Section 7.2(a)(i) shall not apply to:

(1) Taxes (other than Taxes that are sales, use, rental, value added, real estate transfer or similar Taxes that are not substitutes for income taxes) based upon or measured by the Indemnitee’s gross or net income, gross or net receipts or that are in the nature of, or are imposed with respect to, capital, net worth, excess profits, accumulated earnings capital gains, franchise or conduct of business of such Indemnitee, except in the case of gross or net income Taxes, to the extent necessary so that payments under this Section 7.2 are made to an Indemnitee on a Grossed-Up Basis within the meaning of Section 7.4;

(2) Taxes that result from a transfer or other disposition by the Indemnitee or any of its Affiliates of all or any portion of its interest in any Leased Property, the Equity Investment or the Operative Documents (other than a transfer or disposition that occurs while a Default or Event of Default has occurred and is continuing and is related to such Default or Event of Default or that results from (a) the Lessee’s exercise of the Return Option, the Early Termination Option or Purchase Option under the related Lease or (b) any other transfer to the Lessee under the Operative Documents or which is contemplated by the Operative Documents);

(3) Taxes imposed with respect to any period or portion thereof after the expiration or earlier termination of a Lease (but not to the extent attributable to events occurring on or prior to such date);

(4) Taxes resulting from (a) the gross negligence, willful misconduct or fraud of the Indemnitee or any of its Affiliates or (b) the inaccuracy or breach of a representation, warranty or covenant of the Indemnitee under the Operative Documents;

(5) Withholding Taxes, indemnification for which shall be solely as provided in Section 7.2(a)(iii) hereof;

(6) Taxes while they are being contested in accordance with Section 7.2(b);

(7) Taxes imposed on, or, in the case of value added taxes, not refunded to, an Indemnitee that results from its failure to file tax returns properly or timely, to claim a deduction or credit to which it is entitled, or to comply with certification, reporting, or similar requirements

 

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of the jurisdiction imposing the Tax, except to the extent caused by a failure of the Lessee to comply with Section 7.2(d);

(8) Taxes imposed on a transferee to the extent of the excess of such Taxes over the total amount of the Taxes of the same or similar nature that would have been imposed had there not been a transfer by the initial Indemnitee of its interest after the Closing Date;

(9) Taxes in the nature of intangible taxes or similar taxes upon or with respect to the value of the interest of the Lessor in the Equity Investment; and

(10) Taxes included in the cost of the New Improvements (Fremont 3E) and funded by Advances.

(ii) Structural Tax Indemnity . Notwithstanding Section 7.2(a)(i), the Lessee shall indemnify and hold harmless the Lessor for any Taxes that are described in Section 7.2(a)(i) without regard to exclusions, but only to the extent that such Taxes would not have been imposed on Lessor if, for purposes of such Taxes, the Advance made on each Advance Date by the Lessor had been in the form of a secured loan made directly to the Lessee, the obligation to pay a proportionate part of Interim Rent, Basic Rent were the obligation to pay interest to the Lessor, and the proportionate amount of the Lease Balance were the principal amount owed to the Lessor; provided , however , that the indemnification obligation of this Section 7.2(a)(ii) shall not apply to: (1) Taxes resulting from (a) the gross negligence, willful misconduct, or fraud of the Lessor or any of its Affiliates or (b) the inaccuracy or breach of a representation, warranty, or covenant of or by the Lessor under the Operative Documents; (2) Withholding Taxes, indemnification for which shall be solely provided in Section 7.2(a)(iii); (3) Taxes while they are being contested in accordance with Section 7.2(b); (4) Taxes imposed on the Lessor that result from its failure to file tax returns properly or timely, to claim a deduction or credit to which it is entitled, or to comply with certification, reporting or similar requirements of the jurisdiction imposing the Tax, in each case, in accordance with the intent specified in Section 2.12 or as otherwise required by Applicable Law with respect to the Lessor, except to the extent such failure by the Lessor is caused by a failure of the Lessee to comply with Section 7.2(d); (5) Taxes imposed on a transferee to the extent of the excess of such Taxes over the total amount of the Taxes of the same or similar nature that would have been imposed had there not been a transfer by the initial Lessor of its interest after the Closing Date; (6) Taxes included in the cost of the New Improvements (Fremont 3E) and funded by Advances; (7) Taxes imposed upon any Leased Property and indemnifiable pursuant to Section 7.2(a)(i); and (8) California income, franchise, corporate or other similar taxes imposed on an Indemnitee.

(iii) Withholding Tax Indemnity . The Lessee shall not be required to make any additional payment to or on behalf of an Indemnitee with respect to any Withholding Tax, except that the Lessee agrees to indemnify, protect, defend and hold harmless the Indemnitees, on a Grossed-Up Basis, against Withholding Taxes described

 

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in paragraphs (1) and (2) of this Section 7.2(a)(iii). If any such withholding is so required, the Lessee shall make the withholding and pay the amount withheld to the appropriate taxing Authority before penalties attach thereto or interest accrues thereon. The Lessee shall forthwith pay the relevant Indemnitee an amount that, after making all required deductions (including deductions applicable to additional sums payable under this Section), equals the amount that would have been paid if such withholding had not been required. Withholding Taxes referred to in the first sentence of this Section 7.2(a)(iii) as indemnifiable are:

(1) Withholding Taxes imposed under the laws of any jurisdiction other than the United States if such Tax is imposed solely as a result of the Lessee making the payment from such jurisdiction;

(2) Withholding Taxes imposed under the laws of the United States, or any taxing jurisdiction therein, imposed solely as the result of a change in Tax laws, regulations, rulings, interpretations or treaties after the Closing Date other than a withholding Tax that results from a change in Tax law which is excluded from the definition of Change of Law pursuant to Section 2.9(c)(i)(F).

If the Lessee pays any amount to an Indemnitee with respect to Withholding Taxes required to be withheld by law but not subject to indemnity pursuant to this Section 7.2, such Indemnitee shall reimburse the Lessee within fifteen (15) days of written demand therefor for the amount so paid by the Lessee provided that if such Indemnitee fails to reimburse the Lessee within such fifteen (15) days, such Indemnitee shall thereafter be obligated to reimburse the Lessee for such amount together with interest on such amount at the Overdue Rate from the date such reimbursement was due until the date it is paid.

(iv) Nothing contained in Section 7.2(a) shall entitle an Indemnitee to indemnification of a Tax under more than one subsection of Section 7.2(a).

(b) Contests. If any claim or claims is or are made against any Indemnitee for any Tax which is subject to indemnification as provided in Section 7.2(a), such Indemnitee shall as soon as practicable, but in no event more than thirty (30) days after receipt of formal written notice of the Tax or proposed Tax, notify the Lessee and if, in the reasonable opinion of the Lessee there exists a reasonable basis to contest such Tax which satisfies the requirements of ABA Formal Opinion 85-352 (and if the provisos of the definition of “Permitted Contest” continue to be satisfied), the Lessee at its expense may, to the extent permitted by Applicable Law and provided that it has acknowledged in writing its liability for the Tax at issue if the contest is not successful, contest such Tax, and subsequently may appeal any adverse determination (other than to the United States Supreme Court), in the appropriate administrative and legal forums; provided , that in all other circumstances, upon notice from the Lessee to such Indemnitee that there exists a reasonable basis to contest any such Tax which satisfies the requirements of ABA Formal Opinion 85-352 (as supported by an opinion of tax counsel to the Lessee reasonably acceptable to the Indemnitee), the Indemnitee, at the Lessee’s expense, shall contest any such Tax (so long as the provisos of the definition of “Permitted Contest” continue to be satisfied and, in the case of a Tax on gross or net income, the aggregate amount of the Tax

 

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exceeds U.S. $100,000). Lessee shall pay all reasonable, out-of-pocket expenses actually incurred by the Indemnitee in contesting any such Tax (including, without limitation, all reasonable attorney’s and accountants’ fees), upon demand by the Indemnitee. Lessee shall have the right to participate in the conduct of any proceedings controlled by the Indemnitee to the extent that such participation by the Lessee does not interfere with the Indemnitee’s control of such contest and the Lessee shall in all events be kept informed, to the extent practicable, of material developments relative to such proceedings. The Indemnitee shall have the right to participate in the conduct of any proceedings controlled by the Lessee to the extent that such participation by the Indemnitee does not interfere with the Lessee’s control of such contest, and the Indemnitee shall in all events be kept informed, to the extent practicable, of material developments relative to such proceedings. The Indemnitees agree that a contested claim for which the Lessee would be required to make a reimbursement payment hereunder will not be settled or compromised without the Lessee’s prior written consent or the Indemnitee waives its right to indemnification hereunder and repays the Taxes advanced by the Lessee as a non-interest bearing loan by the Lessee to such Indemnitee without interest. Indemnitee shall endeavor to settle or compromise any such contested claim in accordance with written instructions received from the Lessee; provided , that (i) the Lessee on or before the date the Indemnitee executes a settlement or compromise pays the contested Tax to the extent agreed upon or makes an indemnification payment to the Indemnitee in an amount acceptable to the Indemnitee; and (ii) the settlement or compromise does not, in the reasonable opinion of the Indemnitee materially adversely affect the right of the Lessor or such Indemnitee to receive Rent or the Lease Balance or any other payment pursuant to the Operative Documents, or involve a material risk of sale, forfeiture or loss of the affected Leased Property or any interest therein or any matter described in the provisos to the definition of “Permitted Contest.” The failure of an Indemnitee to contest timely a claim against it for any Tax which is subject to indemnification under Section 7.2(a) and for which it has an obligation to the Lessee to contest under this Section 7.2(b) in the manner required by Applicable Law where the Lessee has timely requested (with regard to the time of the initial notification by Indemnitee) that such Indemnitee contest such claim shall relieve the Lessee of its obligations to such Indemnitee under Section 7.2(a) with respect to such claim only to the extent such failure results in the loss of an effective contest. If Applicable Law requires the payment of a contested Tax as a condition to, or regardless of, its being contested, and the Lessee chooses to contest such Tax or to direct the Indemnitee to contest such Tax in accordance with this Section, then the Lessee shall provide the Indemnitee with the funds to pay such Tax, such provision of funds to be deemed a non-interest bearing loan by the Lessee to the Indemnitee to be repaid by any recovery of such Tax (including the amount of any interest received by reason of payment or deposit of the Tax claimed with funds advanced by the Lessee to the Indemnitee with respect to such recovered Tax, payable on a net after-tax basis to the Indemnitee) from such contest and any remaining unpaid amount not recovered to offset the Lessee’s obligation to indemnify the Indemnitee for such Tax. Lessee shall indemnify the Indemnitee on a Grossed-Up Basis in accordance with Section 7.4 for and against any adverse consequences of any such interest-free loan.

(c) Payments. Any Tax indemnifiable under Section 7.2(a) shall be paid by the Lessee directly when due to the applicable taxing Authority if direct payment is practicable and permitted. If direct payment to the applicable taxing Authority is not permitted or is otherwise not made, any amount payable to an Indemnitee pursuant to Section 7.2(a) shall be

 

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paid within thirty (30) days after receipt of a written demand therefor from such Indemnitee accompanied by a written statement describing in reasonable detail the amount so payable, but not before the date that the relevant Taxes are due or, in the case of taxes that are contested under Section 7.2(b), the contest is finally resolved. Any payments made pursuant to Section 7.2(a) directly to the Indemnitee entitled thereto or the Lessee, as the case may be, shall be made in immediately available funds at such bank or to such account as specified by the payee in written directions to the payor, or, if no such direction shall have been given, by check of the payor payable to the order of the payee by certified mail, postage prepaid at its address as set forth in this Agreement. Upon the request of any Indemnitee with respect to a Tax that the Lessee is required to pay, the Lessee shall furnish to such Indemnitee the original or a certified copy of a receipt for the Lessee’s payment of such Tax or such other evidence of payment as is reasonably acceptable to such Indemnitee.

(d) Ownership . The Lessee covenants that, during the Lease Term, it shall remain organized as a corporation under the laws of the United States or any state thereof, it being understood that the sole remedy of an Indemnitee for a breach by the Lessee of the foregoing covenant shall be the right of such Indemnitee to indemnification by the Lessee on an after-tax basis for any incremental tax liability of such Indemnitee that would not have been imposed but for such breach.

(e) Calculation of Payments . Any payment that the Lessee shall be required to make to or for the account of any Indemnitee with respect to any Tax that is subject to indemnification under this Section 7.2 shall be paid on a Grossed-Up Basis under Section 7.4 of this Agreement. If an Indemnitee or any Affiliate of such Indemnitee who files any tax return on a combined, consolidated, unitary or similar basis with such Indemnitee shall actually realize any saving of any Tax not indemnifiable by the Lessee pursuant to the Operative Documents (by way of credit (including any foreign tax credit), deduction, exclusion from income or otherwise) by reason of any amount with respect to which the Lessee has indemnified such Indemnitee pursuant to this Section 7.2, and such tax saving was not taken into account in determining the amount payable by the Lessee on account of such indemnification, such Indemnitee shall promptly pay to the Lessee the amount of such saving together with the amount of any tax saving resulting from any payment pursuant to this sentence ( provided that such payments by such Indemnitee shall not exceed the amount of the payments made by the Lessee to or for such Indemnitee which gave rise to such savings and payment by such Indemnitee). Each Indemnitee agrees to make, at the Lessee’s expense, good-faith efforts to claim any such tax saving that may reasonably be available and to provide promptly thereafter to the Lessee written notification of any action, proceeding or decision with respect to such claim.

(f) Refund. If an Indemnitee shall receive a refund of (or receive a credit against or any other current reduction in, any Tax not indemnified by the Lessee under this Section 7.2, in respect of) all or part of any Taxes which the Lessee shall have paid on behalf of such Indemnitee or for which the Lessee shall have reimbursed, advanced funds to or indemnified such Indemnitee, such Indemnitee shall promptly pay or repay to the Lessee an amount equal to the amount of such refund, plus any net tax benefit (taking into account any Taxes incurred by such Indemnitee by reason of the receipt of such refund, credit or reduction) realized by such Indemnitee as a result of any payment by such Indemnitee made pursuant to this

 

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sentence ( provided that such payments by such Indemnitee shall not exceed the amount of the payments made by the Lessee to or for such Indemnitee which gave rise to such refund and payment by such Indemnitee). If, in addition to such refund, credit or reduction, as the case may be, such Indemnitee shall receive an amount representing interest on the amount of such refund, credit or reduction, as the case may be, such Indemnitee shall promptly pay to the Lessee that proportion of such interest that shall be fairly attributable to Taxes paid, reimbursed or advanced by the Lessee prior to the receipt of such refund. If an Indemnitee loses the benefit of any refund for which it has made a payment pursuant to this Section 7.2(f), such loss shall be treated as a Tax indemnifiable hereunder without regard to exclusions. Each Indemnitee agrees to make, at the Lessee’s expense, good-faith efforts to claim any such refund, credit or reduction that may reasonably be available and to provide promptly thereafter to the Lessee written notification of any action, proceeding or decision with respect to such claim.

(g) Restructuring for Withholding Taxes . Each party covered by this Section 7.2 agrees to use reasonable efforts to investigate alternatives for reducing any Withholding Taxes that are indemnified against hereunder or imposed on Rent or Yield on Equity Investment (whether or not indemnifiable hereunder) and to use reasonable efforts to reduce any Withholding Taxes that are indemnified against hereunder, including, without limitation, negotiating in good faith to relocate or restructure the Advances (which relocation or restructuring shall be at the Lessee’s expense in the case of indemnifiable Withholding Taxes), but no party shall be obligated to take any such action as such party determines will be adverse to its business or financial or commercial interests.

(h) Tax Ownership . Each Indemnitee represents and warrants that it will not, prior to the termination of a Lease, claim ownership of (or any tax benefits, including depreciation, with respect to) the related Leased Property for any income tax purposes (unless required to do so by a taxing authority) with respect to the period prior to such termination, it being understood that it is the intention of all parties to this transaction that the Lessee is and will remain the owner of such Leased Property for such income tax purposes until the termination of the Lease and such transfer.

SECTION 7.3. Withholding Tax Documentation.

(a) Lessee shall, as promptly as practicable to enable the Indemnitee to comply with the requirements of subsection (b) below, notify the Indemnitee in writing of the availability of any exemption from withholding tax under the laws or bilateral income tax treaties of any jurisdiction imposing a Withholding Tax indemnifiable under Section 7.2(a)(iii). Lessee shall furnish the Indemnitee with the applicable documentation or, to the extent commercially reasonable, information that is required to obtain such exemption or reduction.

(b) At least five (5) Business Days prior to the first payment date with respect to a payment under the Operative Documents that is subject to a Withholding Tax on interest that is indemnifiable under Section 7.2(a)(iii) and that is imposed by a jurisdiction outside the United States, the Indemnitee shall have complied with certification, information, documentation, reporting, filing, or other similar requirements concerning the nationality, residence, identity, or connection with the jurisdiction imposing such Withholding Taxes or any other similar matters

 

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that are required by law as a condition to total exemption or total relief from such Withholding Taxes and shall have notified the Lessee in writing of such compliance. The Indemnitee shall further timely comply with all requirements for keeping the exemption in full force and effect, unless a change in treaty, law, or regulation has occurred that would prevent the Indemnitee from complying and the Indemnitee promptly advises the Lessee in writing that it is not capable of receiving payments without withholding. Each of the parties hereto agrees that on the Closing Date, no certification, documentation, reporting or similar confirmation is required of an Indemnitee to establish total exemption from Withholding Taxes on interest or any other amounts relevant to this transaction in any applicable jurisdiction other than forms W-8BEN, W-8ECI or W-8IMY and any required attachments as required by Section 7.3(c) or form W-9 if requested by the Lessee.

(c) At least five (5) Business Days prior to the first date on which any payment is due under the Equity Investment for the account of any successor Lessor that is not organized or incorporated under the laws of the United States or a state thereof, such Lessor shall have delivered to the Lessee two duly completed copies of United States Internal Revenue Service form W-8BEN, W-8ECI or W-8IMY and any required attachments, in any case with taxpayer identifying numbers, certifying that such Lessor is entitled to receive payments of Yield and a return of principal on the Equity Investment including Capitalized Yield under the Operative Documents without deduction or withholding of any United States Federal income taxes. In delivering any such form or any successor or replacement form, such Lessor shall be entitled to assume that the payor of such Yield is organized under the laws of the United States or any state thereof. Each Lessor which so delivers form W-8BEN, W-8ECI or W-8IMY and any required attachments shall further deliver to the Lessee two additional copies of such form (or a successor form) on or before the date that such form expires (currently, three successive calendar years for Form W-8ECI) or becomes obsolete or within thirty (30) days after the occurrence of any event requiring a change in the most recent forms so delivered by it, and, as may be reasonably requested by Lessee such amendments thereto or extensions or renewals thereof, in each case certifying that such Lessor is entitled to receive payments under the Operative Documents without deduction or withholding of any United States Federal income taxes, unless a change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Lessor from duly completing and delivering any such form with respect to it and such Lessor promptly advises the Lessee in writing that it is not capable of receiving payments without any withholding of United States Federal income tax.

(d) If any payment made to an Indemnitee hereunder would be subject to U.S. federal withholding Tax imposed by FATCA if such Indemnitee were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Indemnitee shall deliver to the Lessee at the time or times prescribed by law and at such time or times reasonably requested by the Lessee such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) as may be necessary for the Lessee to comply with their obligations under FATCA and to determine that such Indemnitee has complied with such Indemnitee’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.

 

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SECTION 7.4. Gross Up.

If an Indemnitee shall not be entitled to a corresponding and equal deduction with respect to any payment or Tax which the Lessee is required to pay or reimburse under any other provision of this Article VII (each such payment or reimbursement under this Article VII, an “ original payment ”) and which original payment constitutes income to such Indemnitee when accrued or received, then the Lessee shall pay to such Indemnitee on demand the amount of such original payment on a grossed-up basis such that, after subtracting all Taxes imposed on such Indemnitee with respect to such grossed-up payment by the Lessee (including any Taxes otherwise excluded by Section 7.2(a)(i) and assuming for this purpose that such Indemnitee was subject to taxation at the United States Federal, state and local marginal rates applicable and, in the case of Withholding Taxes subject to indemnification pursuant to Section 7.2(a)(iii), actually applicable provincial and foreign marginal rates to the Indemnitee for the year in which such income is taxable), such amount ( i.e. , the grossed-up payment minus the taxes thereon) shall be equal to the original payment to be received or reimbursed (net of any credits, deductions or other tax benefits then actually recognized that arise from the payment by such Indemnitee of any amount, including taxes, for which the payment to be received is made) (“ Grossed-Up Basis ”).

SECTION 7.5. Leased Property Indemnity.

Notwithstanding any provision to the contrary in this Article VII, in the event that (a) the Lessee elects the Return Option with respect to a Leased Property and (b) after paying to the Lessor any amounts due under Article XXII of the related Lease, the Lease Balance for such Leased Property shall not have been reduced to zero, then, except to the extent such amounts represent amounts due in respect of a Default or Event of Default, the Lessee shall promptly pay over to the Lessor on the Return Date, the shortfall between the Fair Market Value of such Leased Property as of the Return Date and the Fair Market Value anticipated for such date in the Appraisal delivered pursuant to Section 3.1(g) in an amount not to exceed such outstanding Lease Balance, unless the Lessee delivers a report from an appraiser selected by it and approved by the Lessor, in form and substance satisfactory to the Lessor and using approved methods satisfactory to the Lessor, which establishes that the reasons for the actual Fair Market Value of such Leased Property as of the Return Date being less than the Fair Market Value anticipated for such date in the Appraisal delivered pursuant to Section 3.1(g) were not due to any of the following events, circumstances or conditions, whether or not permitted under such Lease: (i) the failure to maintain such Leased Property as required by such Lease and the other Operative Documents, and in at least as good a condition as it was in on Closing Date or the Completion Date, as applicable, ordinary wear and tear excepted; (ii) the carrying out of or the failure to complete any modifications, improvements or Alterations; (iii) if such Leased Property consists of New Improvements (Fremont 3E), any change or modification to the Plans and Specifications in violation of Section 3.2 of the Construction Agency Agreement; (iv) the existence of any environmental condition at or affecting such Leased Property that did not exist on the Closing Date (subject, in the case of any environmental condition arising prior to the Base Term Commencement Date, to the limitations set forth in Section 7.1(f) hereof); (v) any defect, exception, easement, restriction or other encumbrance on or title to such Leased Property not existing on the Closing Date and not consented to by the Lessor; or (vi) any other cause or

 

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condition within the power of the Lessee to control or affect (other than ordinary wear and tear) that did not exist on the Closing Date (subject, in the case of any cause or condition arising prior to the Base Term Commencement Date, to the limitations set forth in Section 7.1(f) hereof). Notwithstanding the foregoing, in no event shall Lessee have liability under this indemnity to the extent of any fraud, gross negligence or willful misconduct of any Indemnitee.

ARTICLE VIII

MISCELLANEOUS

SECTION 8.1. Survival of Indemnities.

The indemnities of the parties provided for in the Operative Documents shall survive the execution and delivery and the termination or expiration of this Agreement and any of the Operative Documents, the transfer of the interest in any Leased Property as provided herein or in any other Operative Documents, any disposition of any interest of the Lessor in any Leased Property, the making of the Equity Investment, payment therefor and any disposition thereof and shall continue in effect notwithstanding that any party hereto may waive compliance with any of the other terms, provisions or conditions of any of the Operative Documents.

SECTION 8.2. No Broker, etc.

Except for the Lessee’s dealings with the Lessor, in its capacity as the Arranger, and Jones Lang LaSalle, each of the parties hereto represents to the others that it has not retained or employed any arranger, broker, finder or financial advisor to act on its behalf in connection with this Agreement, nor has it authorized any arranger, broker, finder or financial adviser retained or employed by any other Person so to act, nor has it incurred any fees or commissions to which the Lessor might be subjected by virtue of their entering into the transactions contemplated by this Agreement. Any party who is in breach of this representation shall indemnify and hold the other parties harmless from and against any liability arising out of such breach of this representation.

SECTION 8.3. Notices.

Unless otherwise specified herein, all notices, requests, demands or other communications to or upon the respective parties hereto in connection with the Operative Documents shall be deemed to have been given (i) in the case of notice by letter, the earlier of when delivered to the addressee by hand or courier if delivered on a Business Day and, if not delivered on a Business Day, the first Business Day thereafter or on the fifth Business Day after depositing the same in the mails, registered or certified mail, postage prepaid, return receipt requested and (ii) in the case of notice by electronic mail, when return receipt or reply by electronic mail is sent, provided , that if the intended recipient declines or opts out of the receipt acknowledgment, then such notice shall be deemed to have been received on the Business Day sent, if sent during normal business hours on such Business Day, or if otherwise, at the opening of business on the next Business Day, in each case addressed as provided on Schedule II hereto, or to such other address as any of the parties hereto may designate by written notice.

SECTION 8.4. Counterparts.

 

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This Agreement and each of the other Operative Documents may be executed by the parties hereto and thereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same agreement.

SECTION 8.5. Amendments.

No Operative Document nor any of the terms thereof may be terminated, amended, supplemented, waived or modified without the written agreement or consent of the Lessor and the Lessee; provided , however , that, Section 8.14 hereof may not be terminated, amended, supplemented, waived or modified without the written agreement or consent of the Arranger.

SECTION 8.6. Headings, etc.

The Table of Contents and headings of the various Articles and Sections of this Agreement are for convenience of reference only and shall not modify, define, expand or limit any of the terms or provisions hereof.

SECTION 8.7. Parties in Interest.

Except as expressly provided herein, none of the provisions of this Agreement is intended for the benefit of any Person except the parties hereto and their respective successors and permitted assigns.

SECTION 8.8. Governing Law.

THIS AGREEMENT HAS BEEN DELIVERED IN, AND SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF, THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES OF SUCH STATE (EXCEPT SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

SECTION 8.9. Payment of Transaction Costs and Other Costs.

(a) Transaction Costs and Fees . As and when any portion of Transaction Costs or Fees becomes due and payable, such Transaction Costs or Fees shall be paid by the Lessee as Supplemental Rent.

(b) Amendments, Supplements, etc . Without limitation of the foregoing, the Lessee agrees to pay to the Lessor all costs and expenses (including reasonable and properly documented legal fees and expenses of counsel to the Lessor) incurred by it in connection with: (i) the considering, evaluating, investigating, negotiating and entering into or giving or withholding of any amendments or supplements or waivers or consents with respect to any Operative Document requested by the Lessee; (ii) the negotiation and documentation of any restructuring or “workout,” whether or not consummated, of any Operative Document; (iii) the enforcement of the rights or remedies under the Operative Documents; or (iv) any transfer by the Lessor of any interest in the Operative Documents during the continuance of an Event of Default.

 

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SECTION 8.10. Severability.

Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

SECTION 8.11. Limited Liability.

The parties hereto agree that except as specifically set forth herein or in any Operative Document, no shareholder, member, owner, officer, director or employee or Affiliate of Lessor shall have personal liability whatsoever to the Lessee or its successors and assigns for any claim or obligation based on or in respect hereof or any of the Operative Documents (including the construction of the New Improvements (Fremont 3E) or for the accuracy, sufficiency or adequacy of any of the information or documents submitted in connection with each Advance or upon Completion of the New Improvements (Fremont 3E)) or arising in any way from the transactions contemplated hereby or thereby and recourse, if any, shall be solely had against the Lessee Collateral (it being acknowledged and agreed by each party hereto that all such personal liability of such shareholders, members, owners, officers, directors, employees and Affiliates is expressly waived and released as a condition of, and as consideration for, the execution and delivery of the Operative Documents by the Lessor).

SECTION 8.12. Submission to Jurisdiction; Waivers.

(a) EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY:

(i) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER OPERATIVE DOCUMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, AND APPELLATE COURTS FROM ANY THEREOF;

(ii) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT TO SUCH COURTS, AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;

(iii) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY

 

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SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS SET FORTH ON SCHEDULE II OR AT SUCH OTHER ADDRESS OF WHICH THE OTHER PARTIES HERETO SHALL HAVE BEEN NOTIFIED PURSUANT TO SECTION 8.3; AND

(iv) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION.

(b) EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THE OPERATIVE DOCUMENTS AND FOR ANY COUNTERCLAIM THEREIN.

SECTION 8.13. Reproduction of Documents.

Subject to Section 8.16, this Agreement, all documents constituting an Appendix, Schedule or Exhibit hereto, and all documents relating hereto received by a party hereto, including, without limitation: (a) consents, waivers and modifications that may hereafter be executed; (b) documents received by the Lessor in connection with the receipt and/or acquisition of each Leased Property; and (c) financial statements, certificates and other information previously or hereafter furnished to the Lessor may be reproduced by the party receiving the same by any photographic, photostatic, microfilm, micro-card, miniature photographic or other similar process. Each of the parties hereto agrees and stipulates that, to the extent permitted by law, any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made by such party in the regular course of business) and that, to the extent permitted by law, any enlargement, facsimile, or further reproduction of such reproduction shall likewise be admissible in evidence.

SECTION 8.14. Role of Arranger.

Each party hereto acknowledges hereby that it is aware of the fact that BTMU Capital Leasing & Finance, Inc. has acted as “arranger” with respect to the Overall Transactions. The parties hereto acknowledge and agree that neither the Arranger nor its Affiliates have made any representations or warranties concerning, and that they have not relied upon the Arranger as to, the tax, accounting or legal characterization or validity of (i) the Operative Documents or (ii) any aspect of the Overall Transaction. The parties hereto acknowledge and agree that the Arranger has no duties, express or implied, under the Operative Documents in its capacity as the Arranger. The parties hereto further agree that Section 2.6(a), Section 8.2, Section 8.9(a) and this Section 8.14 are for the express benefit of the Arranger, in such capacity, and the Arranger shall be entitled to rely thereon as if it were a party hereto.

 

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SECTION 8.15. Payments in Dollars.

All payments to be made by the Lessee hereunder shall be made in Dollars in immediately available and freely transferable funds at the place of payment, all such payments to be paid without setoff, counterclaim or reduction.

SECTION 8.16. Confidentiality.

The Lessor agrees, with respect to any information delivered or made available by the Lessee to it under the Operative Documents, to use all reasonable efforts to protect such confidential information from unauthorized use or disclosure and to restrict disclosure to only those Persons employed or retained by the Lessor who are or are expected to become engaged in evaluating, approving, structuring or administering this Agreement and the transactions contemplated hereby. Nothing herein shall prevent the Lessor from disclosing such information (i) to any Participation Holder or prospective Participation Holder subject to an agreement containing provisions substantially the same as those in this Section 8.16, (ii) to its Affiliates, officers, directors, employees, agents, attorneys and accountants who have a need to know such information in accordance with customary banking practices and who receive such information having been made aware of and having agreed to the restrictions set forth in this Section, (iii) upon the order of any court or administrative agency, (iv) upon the request or demand of any regulatory agency or authority having jurisdiction over the Lessor, (v) which has been publicly disclosed other than that through the breach of this Section 8.16, (vi) to the extent reasonably required in connection with the exercise of any remedy hereunder and (vii) with the prior written consent of the Lessee; provided , however , that before any disclosure is permitted under (iii) or (iv) of this Section 8.16, the Lessor shall, if not legally prohibited, notify and consult with the Lessee, promptly and in a timely manner, concerning the information it proposes to disclose, to enable the Lessee to take such action as may be appropriate under the circumstances to protect the confidentiality of the information in question, and provided further that any disclosure under the foregoing proviso be limited to only that information discussed with the Lessee. The use of the term “confidential” in this Section 8.16 is not intended to refer to data classified by the government of the United States under laws and regulations relating to the handling of data, but is intended to refer to information and other data regarded by the Lessee as private.

SECTION 8.17. Entire Agreement.

This Agreement (together with the other Operative Documents) constitutes the entire agreement between the parties hereto with respect to the matters covered hereby and supersedes all prior agreements and understandings, written or oral, with respect to such matters between the parties. The parties hereto shall not have any duties or obligations, except those expressly set forth herein, and no implied duties or obligations shall be read into this Agreement.

SECTION 8.18. UCC Filings and Other Matters.

Lessee hereby grants to the Lessor (or its counsel on its behalf) the permission and right to file, without the signature of the Lessee, any financing statements under the Uniform Commercial Code necessary to perfect the Lessor’s interest in the “collateral” under each Memorandum of Lease. The Lessee represents and warrants that its address listed on Schedule II

 

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hereof is the true, correct and complete addresses of either (i) its sole place of business or (ii) its chief executive office and covenants and agrees to inform the Lessor within thirty (30) days of any chance in such principal place of business. The Lessee shall cause the Lessor to attend to the filing of any necessary UCC continuation statements in order to maintain the perfection of the UCC Financing Statements filed on or about the Closing Date.

[Signature Pages Follow]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.

 

LAM RESEARCH CORPORATION,
AS L ESSEE
By:  

/s/ Odette Go

Name:   Odette Go
Title:   Treasurer

 

[Signature Page to Participation Agreement]


BTMU CAPITAL LEASING & FINANCE, INC.,
AS L ESSOR
By:  

/s/ Gregory B. Register

Name:   Gregory B. Register
Title:   Managing Director

 

[Signature Page to Participation Agreement]


APPENDIX I

COMMON DEFINITIONS AND RULES OF INTERPRETATION

In the Participation Agreement and each other Operative Document, unless otherwise expressly provided, the following rules of interpretation shall apply:

(a) any term defined below by reference to another instrument or document shall continue to have the meaning ascribed thereto whether or not such other instrument or document remains in effect;

(b) words importing the singular include the plural and vice versa;

(c) words importing a gender include any gender;

(d) a reference to a part, clause, section, article, exhibit or schedule is a reference to a part, clause, section and article of, and exhibit and schedule to, such Operative Document;

(e) a reference to any statute, regulation, proclamation, ordinance or law includes all statutes, regulations, proclamations, ordinances or laws amending, supplementing, supplanting, varying, consolidating or replacing them, and a reference to a statute includes all regulations, proclamations and ordinances issued or otherwise applicable under that statute;

(f) a reference to a document includes any amendment, modification or supplement to, or replacement, restatement or novation of, that document;

(g) a reference to “Lessee” shall be deemed a reference to “Constructor” and a reference to “Constructor” shall be deemed a reference to “Lessee” unless otherwise indicated;

(h) a reference to a party to a document includes that party’s successors and permitted assigns; and

(i) references to “including” shall mean including without limiting the generality of any description preceding such term and for purposes hereof the rule of ejusdem generis shall not be applicable to limit a general statement followed by or referable to an enumeration of specific matters to matters similar to those specifically mentioned.

Further, each of the parties to the Operative Documents and their counsel have reviewed and revised the Operative Documents, or requested revisions thereto, and the usual rule of construction that any ambiguities are to be resolved against the drafting party shall be inapplicable in construing and interpreting the Operative Documents.

97-1 Event of Default ” shall mean an Event of Default arising under paragraph (e), (f), (g), (j), (k) (unless the Change of Control is approved or consented to by the board of directors or other authorized person or persons of Lessee) or during any Interim Term (n) of Article XVII of the Lease, solely if the breach of the related covenant, representation or warranty


was based on the following (or, in the case of an Event of Default arising under such paragraph (g) or (j), solely if the event or default permitting or resulting in the accelerations referenced therein or final judgment, as applicable, was based on the following): a subjective interpretation of the term “adequate,” “diligently,” “material,” “materially,” “Material Adverse Effect,” “materially adversely affect,” “material adverse change,” “materially and adversely affects,” “material adverse effect,” or any other term that is not objectively determinable, or results from a condition that is not solely related to Lessee or Lessee’s operations or the Lessee’s use of the Leased Property provided, however, in all cases, if the Event of Default, covenant or representation or warranty relates to the Lessee’s use of the Leased Property, then such Event of Default, covenant or representation or warranty will not be deemed a 97-1 Event of Default.

“Actual Knowledge” shall mean, as to any matter with respect to any Person, the actual knowledge of such matter by a Responsible Officer of such Person.

“Additional Costs” shall mean the amounts payable by the Lessee pursuant to Sections 2.9(c), 2.9(d), 2.10, 7.2(a)(iii) and 7.5 of the Participation Agreement.

“Advance” shall mean an advance of funds by the Lessor pursuant to Article III of the Participation Agreement, and “Advanced” shall have a corollary meaning.

“Advance Date” shall mean the Monthly Date on which an Advance occurs in accordance with the terms of Sections 2.5 and 3.3 of the Participation Agreement.

“Advance Request” shall have the meaning provided in Section 3.2(a) of the Participation Agreement.

“Affiliate” shall mean, with respect to any Person, any other Person which directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such first Person or any of its Subsidiaries. The term “control” shall mean the possession, directly or indirectly, of any power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.

“Alterations” shall have the meaning provided in Section 9.2(a) of the Lease.

“Alternate Base Rate” shall mean for any day, a rate per annum equal to the greatest of (a) the Prime Rate for such day, (b) the sum of 0.50% plus the Federal Funds Rate for such day, (c) LIBOR on such day plus 1.00%, and (d) 0.125%; provided that, for purposes of this definition, LIBOR for any day shall be computed with a Yield Determination Date deemed to occur on such day (or if such day is not a Business Day, the immediately preceding Business Day). If Lessor shall have determined (which determination shall be presumed correct absent manifest error and shall be made in good faith on a basis that is neither arbitrary nor capricious) that it is unable to ascertain the Federal Funds Rate for any reason, including the inability of Lessor to obtain sufficient quotations in accordance with the terms of the definition thereof, Alternate Base Rate shall be determined without regard to clause (b) of the preceding sentence until the circumstances giving rise to such inability no longer exist. Any change in Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Rate or LIBOR shall be effective

 

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on the effective date of such change in the Prime Rate, the Federal Funds Rate or LIBOR, respectively.

“Alternate Base Rate Equity Investment” shall mean the Equity Investment which is bearing Interim Yield or Yield, as applicable, at the Alternate Base Rate.

“A.M. Best’s” shall mean A.M. Best Company or any successor thereto.

“Applicable Laws” shall mean as of any date all applicable laws, rules, regulations (including Environmental Laws), statutes, treaties, codes, ordinances, permits, certificates, orders and licenses of and interpretations by, any Authority, and applicable judgments, decrees, injunctions, writs, orders or like action of any court, arbitrator or other administrative, judicial or quasi-judicial tribunal or agency of competent jurisdiction (including those pertaining to health, safety or the environment and those pertaining to the construction, use, occupancy or subdivision of any Leased Property or the related Site) and any restrictive covenant or deed restriction or easement of record affecting any Leased Property or the related Site including the Shared Use Agreement and the Appurtenant Rights and Restrictions.

“Applicable Margin” shall mean, (i) with respect to calculation of the Interim Yield Rate, seventy-five one-hundredths of one percent (0.75%), and (ii) with respect to calculation of the Yield Rate, four hundred and twenty-five thousandths of one percent (0.425%); provided , that, upon, and only upon, receipt of the Cash Collateral – New Improvements by a Deposit Taker pursuant to Pledge Agreement (Fremont 3E) and the Deposit Agreement (Fremont 3E) shall the Applicable Margin change to 0.425%.

“Appraisal” shall mean the appraisal described in Section 3.1(g) of the Participation Agreement.

“Appraiser” shall mean CBRE, Inc.

Appurtenant Rights and Restrictions shall mean the Covenants, Conditions, Restrictions and Easements which are a burden and benefit to the Site, as the same may be modified from time to time as provided in the Lease.

“Arranger” shall mean BTMU Capital Leasing & Finance, Inc.

“Assignment of Contract” shall mean an Assignment and Consent Agreement, dated as of the date of the related Major Construction Document, from Constructor, as assignor, and the related contractor to the Lessor, as assignee, with respect to each Major Construction Document.

“Authority” shall mean any federal, state, county, municipal or other government or governmental, quasi-governmental or regulatory authority, agency, board, body, commission, instrumentality, court or tribunal, water board, or any political subdivision of any thereof, or arbitrator or panel of arbitrators, of or within the United States or any other jurisdiction applicable to the Lessor and having jurisdiction or authority over the Lessor.

 

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“Available Commitment” shall mean an amount equal to the excess, if any, of (a) the aggregate Construction Commitment of Lessor over (b) the aggregate outstanding amount of Lessor’s Equity Investment Advanced with respect to the acquisition of the Unimproved Land, the Construction of the New Improvements (Fremont 3E) and the payment of Construction Costs incurred with respect thereto, all as set forth in the Construction Budget.

“Bankruptcy Code” shall mean the United States Bankruptcy Code as set forth in Title 11 of the United States Code, as amended from time to time and any successor provision.

“Base Term” shall have the meaning provided in Section 2.2 of each Lease.

“Base Term Commencement Date” shall have the meaning provided in Section 2.2 of each Lease.

“Base Term Expiration Date” shall mean the Final Maturity Date.

“Basic Rent” shall mean for any period of determination, an amount equal to the aggregate amount of Yield payable on the last day of such period on the Equity Investment Advanced with respect to the related Lease.

“Bill of Sale” shall mean the Bill of Sale, dated the Closing Date, from the Existing Lessor, as grantor, to Lessor, as grantee, with respect to the Personal Property.

“Blocked Account Agreement” shall mean that certain Securities Account Control Agreement by and among Lessor, Lessee and the Deposit Taker with respect to the Cash Collateral – New Improvements.

“Board of Directors” shall mean, with respect to a corporation or limited liability company, as applicable, either the board of directors or any duly authorized committee of that board of directors which, pursuant to the by-laws of such corporation or company, has the same authority as that board of directors as to the matter at issue.

“Break Even Price” shall mean, as of any date of determination, the sum, without duplication, of (a) the aggregate outstanding Equity Investment of the Lessor (including amounts with respect to Funded Claims), plus (b) all accrued but unpaid Yield or Interim Yield, as applicable, plus (c) without duplication, all unpaid Rent and all other sums then due and payable pursuant to the terms of the Operative Documents (except under Other Lease Documents) by the Lessee including all Supplemental Rent.

“Break Even Price (Improvements)” shall mean, as of any date of determination, the sum, without duplication, of (a) the aggregate outstanding Equity Investment of the Lessor (including amounts with respect to Funded Claims) attributable to the Improvements as determined pursuant to Section 22.3(d) of Lease Fremont 1 or Lease Fremont 4, as applicable, plus (b) all accrued but unpaid Yield, plus (c) without duplication, all unpaid Rent and all other sums then due and payable pursuant to the terms of the Operative Documents (except under Other Lease Documents) by the Lessee including all Supplemental Rent.

 

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“Break Even Price (Land)” shall mean, as of any date of determination, the sum, without duplication, of (a) the aggregate outstanding Equity Investment of the Lessor (including amounts with respect to Funded Claims) attributable to the Site as determined pursuant to Section 22.3(d) of Lease Fremont 1 or Lease Fremont 4, as applicable, plus (b) all accrued but unpaid Yield, plus (c) without duplication, all unpaid Rent and all other sums then due and payable pursuant to the terms of the Operative Documents (except under Other Lease Documents) by the Lessee including all Supplemental Rent.

“Break Even Price – Special Land Value” shall mean, with respect to Lease Fremont 1 and Lease Fremont 4, as of any date of determination, the sum, without duplication, of (a) the Break Even Price (Improvements) with respect to the Improvements described therein plus (b) Break Even Price (Land) with respect to the Site described therein.

“Break Funding Amount” shall have the meaning provided in Section 2.10 of the Participation Agreement.

Building Shell shall mean the shell of the building to be constructed on Site Fremont 3E pursuant to the preliminary Plans and Specifications to be prepared by Devcon Construction, Inc.

“Business Day” shall mean any day other than a Saturday, Sunday or other day on which commercial banks in San Francisco, California, New York, New York, and, solely with respect to definition of LIBOR Rate and the payment of any interest or Yield calculated on the basis of the LIBOR Rate, London, England, are authorized or required by law to close.

“Capital Adequacy Requirement” shall have the meaning provided in Section 2.9(d) of the Participation Agreement.

“Capitalized Yield” shall mean, with respect to the Equity Investment, the aggregate amount of all Yield accruing thereon attributable to Advances made during and for any Payment Period ending on or before the Base Term Commencement Date. Yield accruing during such Payment Periods on the Equity Investment attributable to such Advances shall be treated as Capitalized Yield pursuant to Section 2.5 of the Participation Agreement, except to the extent that such amount is not to be capitalized because such amount exceeds the Lessor’s Available Commitment.

“Carrying Costs” shall mean, carrying and closing costs incurred in connection the Construction including Capitalized Yield on prior unpaid Advances, Taxes, insurance premiums and other similar budget items.

“Cash Collateral” shall mean, collectively, Cash Collateral – New Improvements and Cash Collateral – Existing Improvements.

“Cash Collateral – Existing Improvements” shall mean all cash of Lessee which Lessee has delivered to Lessor pursuant to the respective Pledge Agreements (other than under Pledge Agreement (Fremont 3E)) for deposit with the Eligible Deposit Taker, as defined therein, pursuant to the related Pledge Agreement.

 

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“Cash Collateral – New Improvements” shall mean all cash of Lessee which Lessee has delivered to Lessor pursuant to the Pledge Agreement (Fremont 3E) for deposit with (i) during the Construction Period of the New Improvements (Fremont 3E), the Intermediary as defined therein, and (ii) thereafter, with an Eligible Deposit Taker, as defined therein.

“Casualty” shall mean an event of damage or casualty relating to any portion or all of any Improvements or the related which does not constitute an Event of Loss.

“Change in Control” shall mean 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 Equity Interests (as defined below) representing more than fifty percent (50%) of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the Lessee; or (b) occupation of a majority of the seats (other than vacant seats) on the board of directors of the Lessee by Persons who were neither (i) nominated by the board of directors of the Lessee, 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. No merger or other transaction permitted pursuant to Section 5.3 of the Participation Agreement shall constitute a Change in Control.

“Change in Law” shall have the meaning provided in Section 2.9(b) of the Participation Agreement.

“Claims” shall mean liabilities, obligations, damages, losses, demands, penalties, fines, claims, actions, suits, judgments, settlements, charges, costs, fees, expenses and disbursements (including, without limitation, out-of-pocket legal fees and expenses and costs of investigation which, in the case of counsel or investigators retained by an Indemnitee, shall be reasonable) of any kind and nature whatsoever including (except where specifically noted otherwise) but not limited to the outstanding Lease Balance or any part thereof.

“Closing” shall have the meaning provided in Section 3.1 of the Participation Agreement.

“Closing Date” shall mean December 31, 2013.

“Code” shall mean the Internal Revenue Code of 1986 and the rules and regulations thereunder, each as amended, supplemented or otherwise modified from time to time.

“Commitment” shall mean with respect to its Equity Investment, an aggregate amount not to exceed at any one time the amount set forth on Schedule I to the Participation Agreement which is comprised of the sum of each Lease Commitment plus the Construction Commitment.

“Commitment Amount” shall mean $220,000,000.

 

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“Commitment Period” shall mean the period of time beginning on the Closing Date and ending on the earlier of (i) the Construction Period Termination Date and (ii) the date upon which the Commitments are otherwise terminated pursuant to the terms of the Operative Documents.

“Complete” shall mean to cause Completion to occur .

“Completion” shall mean substantial mechanical completion of New Improvements (Fremont 3E) in all material respects in accordance with the Plans and Specifications and Construction Budget (in each case, as supplemented or amended pursuant to Section 3.2 of the Construction Agency Agreement). Receipt of a certificate of occupancy or equivalent from the applicable Authority shall be deemed to constitute “Completion.”

“Completion Date” shall mean, the date on which Completion has occurred.

Component shall mean either the Building Shell or the Interior Buildout.

“Condemnation” shall mean any condemnation, requisition, confiscation, seizure or other taking or sale of the use, occupancy or title to any Improvements or the related Site or any part thereof in, by or on account of any eminent domain proceeding or other action by any Authority or other Person under the power of eminent domain or otherwise or any transfer in lieu of or in anticipation thereof, which in any case does not constitute an Event of Taking. A Condemnation shall be deemed to have “occurred” on the earliest of the dates that use, occupancy or title is taken.

“Consolidated Subsidiary” means, at any date, any Subsidiary or other entity the accounts of which would be consolidated with those of the Lessee in its consolidated financial statements as of such date.

“Construction” shall mean the design and construction of the New Improvements (Fremont 3E), including engineering (including front-end loading and detailed engineering), mechanical construction, demolition of existing improvements on Site Fremont 2 and procurement procedures.

Construction Agency Agreement shall mean the Construction Agency Agreement (Fremont 3E), dated as of the Closing Date, between the Lessor and the Constructor, as may be amended, supplemented, restated or otherwise modified from time to time in accordance with the terms of the Operative Documents.

“Construction Budget” shall mean the construction budget delivered pursuant to Section 3.3(l) of the Participation Agreement, which Construction Budget shall (i) specify the Construction Costs allocable to Completion of the New Improvements (Fremont 3E) to which such Construction Budget relates, and (ii) set forth as separate line items the portion of the Contingency Reserve allocated by the Constructor and which, as modified, shall be subject to the reasonable satisfaction of the Lessor.

 

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“Construction Commitment” shall mean, subject to Section 3.4(e) of the Participation Agreement, an aggregate amount not to exceed at any one time the amount set forth on Schedule I to the Participation Agreement under the heading, Construction Commitment Amount.

“Construction Consultant” shall mean CBRE, Inc.

“Construction Costs” shall mean the amounts (including Carrying Costs during the Construction Period) required to (i) construct the New Improvements (Fremont 3E) (including Soft Costs) substantially in accordance with the Plans and Specifications (as supplemented or amended pursuant to Sections 2.7(o) or 3.2 of the Construction Agency Agreement) and the Operative Documents including costs to demolish any existing improvements, (ii) pay Transaction Costs, (iii) pay Non-Utilization Fees and Structuring Fees allocable to the closing of Lease Fremont 3E, (iv) pay utility charges pursuant to Article VI of the Lease, (v) pay property taxes relating to the Unimproved Land, (vi) pay any tax indemnity claims required by Section 7.2 of the Participation Agreement, (vii) pay any funded insurance deductible, all of which shall be funded through Commitments, and (viii) pay any other expenses for Construction of the New Improvements (Fremont 3E) or other items as set forth in the Construction Budget.

“Construction Default” shall mean any event, condition or failure which, with notice or lapse of time or both, would become a Construction Event of Default.

“Construction Documents” shall have the meaning provided in Section 2.4 of the Construction Agency Agreement.

“Construction Event of Default” shall mean a “Construction Event of Default” as defined in Section 5.1 of the Construction Agency Agreement.

“Construction Period” shall mean with respect to the Construction of the New Improvements (Fremont 3E), the period commencing on the Closing Date and ending on the earlier of (i) the Completion Date or (ii) the Construction Period Termination Date.

“Construction Period Termination Date” shall mean December 31, 2015, as the same may be extended by the Lessee up to (3) three months during the occurrence of any Force Majeure Event or restoration of the New Improvements (Fremont 3E) following an Event of Loss, Condemnation of the New Improvements (Fremont 3E) or Casualty.

“Construction Recourse Amount” shall mean, as of any date of determination calculated as required by ASC 840-40-55-10 through 55-13, the sum of (i) the accreted value of Interim Rent and any other payments that are required to be included in the computation of the maximum guarantee test as prescribed in ASC 840-40-55-11(a) previously paid prior to Completion and (ii) an amount, the present value of which, discounted to the date on which any claim or demand is paid in the case of a Construction Event of Default (such date, the Calculation Date ), when added to the present value (discounted to the Calculation Date) of (x) Fees described in Section 2.6 of the Participation Agreement, and (y) any other Supplemental Rent (other than the Construction Recourse Amount itself) which is required by ASC 840-40-55-

 

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11(b), in each case to be paid by the Lessee (including the estimated reasonable costs relating to the realization by Lessor of the Construction Recourse Amount which will be borne by the Lessee) will not exceed (i) the Maximum Remarketing Obligation (Improvements) plus (ii) the Maximum Remarketing Obligation (Land). The rate used to accrete or discount values will be the implicit rate of the Lease used for determination of classification of the Lease during the Base Term under ASC 840-10-25-1(d).

“Construction Report” shall mean the report from the Construction Consultant obtained by Lessor upon receipt of the final Construction Budget pursuant to Section 2.6 of the Construction Agency Agreement and Plans and Specifications and other Initial Construction Deliverables to be delivered pursuant to Section 2.7(o) of the Construction Agency Agreement regarding the construction and operation of the New Improvements (Fremont 3E) as updated pursuant to Section 2.7(v) of the Construction Agency Agreement.

Constructor shall mean LAM Research Corporation, a Delaware corporation, in its capacity as the “Constructor” under the Operative Documents.

“Contingency Reserve” shall mean a reserve in an amount not less than eight percent (8%) of the overall Construction Budget which shall be funded by Advances and shall be listed in the Construction Budget under the heading “Contingency”.

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

“Deed” shall mean, collectively, the Deeds, dated the Closing Date, from the Existing Lessor, as grantor, to Lessor, as grantee, with respect to each of the Sites and any Improvements thereon.

“Default” shall mean the occurrence of any event under any Operative Document which, but for the giving of notice or passage of time, or both, would be an Event of Default.

“Deposit Agreement” shall mean each Deposit Agreement among Lessee, Lessor and The Bank of Tokyo Mitsubishi UFJ, Ltd., dated as of the Closing Date.

“Deposit Taker” shall have the meaning set forth under the respective Pledge Agreement.

“Dollars” or “$” shall mean, unless otherwise qualified, dollars in lawful currency of the United States.

“Early Termination Option” shall have the meaning provided in Section 20.1 of the Lease.

“Easement” shall have the meaning provided in Section 22.1 of the Lease.

 

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“Eligible Construction Costs” shall mean the aggregate amount of all accrued Construction Costs incurred as of the date of any demand for Lessee to pay the Lease Balance, Construction Recourse Amount or Recourse Deficiency Amount, as applicable, under Article XVIII of Lease Fremont 3E (including any amounts paid by the Lessor to complete construction of the New Improvements (Fremont 3E) according to the Plans and Specifications as permitted under ASC 840-40-55-11 pursuant to Section 5.3(a)(ii), (iii) or (vi) of the Construction Agency Agreement (including any payments made under any Construction Document)), and any damages relating to the breach or termination of any Construction Document following a Construction Event of Default, but excluding (i) all Capitalized Yield, (ii) all Non-Utilization Fees paid to the Lessor or any Affiliates (in any capacity), and (iii) all payments which may not be capitalized as real estate project costs in accordance with GAAP, and subject to the provisions of Section 7.1(f)(iii) of the Participation Agreement.

“Employee Benefit Plan” shall mean any employee benefit plan within the meaning of Section 3(3) of ERISA which is subject to Title I of ERISA or a “plan” within the meaning of Section 4975(e)(I) of the Code.

“Environmental Claim” shall mean any written notice of violation, claim, demand, abatement order or other order or direction (conditional or otherwise), or other mandatory communication by any Authority or any Person for any damage, including personal injury (including sickness, disease or death), tangible or intangible property damage, contribution, indemnity, indirect or consequential damage, damage to the environment, violation of pollution standards, nuisance, pollution, contamination or other adverse effects on the environment, or for fines, penalties or restrictions, in each case resulting from or based upon (A) the existence of a Release (whether sudden or non sudden or accidental or non accidental), or exposure to, any Hazardous Material in, into or onto the environment at, in, by, from or related to any Leased Property, any Site or any part thereof and relating to, arising from or as a result of the Lessee’s or any Lessee Affiliate’s or any sublessee’s use or operation thereof, (B) the use, handling, transportation, storage, treatment or disposal of any such Hazardous Material in connection with the operation of any Leased Property, any Site or any part thereof and relating to, arising from or as a result of the Lessee’s or any Lessee Affiliate’s or any sublessee’s use or operation thereof, or (C) the violation of any Environmental Laws or any Environmental Permits or other Governmental Action in connection with any Leased Property, any Site or any part thereof, or any contiguous, proximate or neighboring property irrespective of whether or not such property is owned or leased by Lessee or Lessor, and arising from, relating to or as a result of the Lessee’s or any Lessee Affiliate’s or any sublessee’s use or operation thereof.

“Environmental Expert” shall mean Environmental Resources Management, Inc. or such other environmental services firm reasonably satisfactory to the Lessor.

“Environmental Laws” shall mean the Resource Conservation and Recovery Act of 1976, (RCRA) 42 U.S.C. §§ 6901-6987, as amended by the Hazardous and Solid Waste Amendments of 1984, the Comprehensive Environmental Response, Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§ 9601-9657, (CERCLA), the Hazardous Materials Transportation Act of 1975, 49 U.S.C. §§ 1801-1812, the Toxic Substances Control Act, 15 U.S.C. §§ 2601-2671, the Clean Air Act, 42

 

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U.S.C. §§ 7401 et seq ., the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136 et seq . (excluding FIFRA Section 4 and Labeling requirements found at 40 CFR 156.10), the California Safe Drinking Water and Toxic Enforcement Act (aka “Prop 65”) (California Health & Safety Code § 25249.5 et seq.), the Air Toxics “Hot Spots” Information and Assessment Act of 1987 (California Health & Safety Code §§ 44300-44309), the California Accidental Release Prevention Program (California Health & Safety Code §§ 25531 et seq.) and all similar federal, state and local environmental laws, ordinances, rules, orders, statutes, decrees, judgments, injunctions, codes and regulations, and any other federal, state or local laws, ordinances, rules, codes and regulations applicable to the Leased Property relating to the environment, human health or natural resources or the regulation or control of or imposing liability or standards of conduct concerning human health, the environment, Hazardous Materials or the clean-up or other remediation of the Leased Property, or any part thereof, as any of the foregoing may have been from time to time amended, supplemented or supplanted.

“Environmental Permits” shall mean all permits, licenses, authorizations, registrations, certificates and approvals of Authorities required by Environmental Laws relating to the Leased Property or the Overall Transaction.

“Environmental Reports” shall mean those certain Phase I Environmental Site Assessments dated December 2013, prepared for Lessor by Environmental Resources Management, with respect to the Sites.

“Environmental Violation” shall mean an activity, occurrence or condition that violates or results in non-compliance with or liability under any Environmental Laws or Environmental Permits.

“Equipment” shall mean personal property of every kind and nature whatsoever purchased or otherwise paid for with the Advances or otherwise acquired by or on behalf of the Lessor and used or usable in connection with any operation or letting of any Improvements or any Site, including but without limiting the generality of the foregoing, all electrical and mechanical equipment, plumbing, ventilation, furnaces, air conditioning and air-cooling apparatus, refrigerating and incinerating equipment, escalators, generators, loading and unloading equipment and systems, communications systems (including satellite dishes and antennae), sprinkler systems and other fire prevention and extinguishing apparatus and materials, security systems, motors, engines, machinery, pipes, pumps, tanks, conduits, fittings and fixtures of every kind and description, and any substitutions or replacements thereof.

“Equity Investment” shall mean, as of any date of determination, (i) the aggregate amount advanced by the Lessor pursuant to Section 2.2(a) of the Participation Agreement, net of any Qualified Prepayments paid to Lessor with respect thereto and (ii) with respect to any particular Lease, the amount Advanced by the Lessor pursuant to Section 2.2 of the Participation Agreement, not to exceed the related Lease Commitments or Construction Commitment, as applicable, net of Qualified Prepayments paid with respect thereto.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974.

 

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“ERISA Affiliate” shall mean any Person who together with the Lessee is treated as a single employer within the meaning of Section 414(b) or (c) of the Code, or solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414(m) or (o) of the Code.

“Event of Default” shall mean any event condition or failure designated as an “Event of Default” in Article XVII of the Lease.

“Event of Loss” shall mean: (w) the actual or constructive total or substantial loss of any Improvements, any Site or damage to any Improvements or any Site to an extent rendering repair impractical or uneconomical, in any case as reasonably determined in good faith by the Board of Directors of the Lessee, such determination to be made promptly after the occurrence of such event and to be evidenced by an Officer’s Certificate of the Lessee delivered to the Lessor, (x) damage to any Improvements which results in an insurance settlement on the basis of a total loss or constructive total loss (including title insurance proceeds) in respect of a total loss of the Improvements, (y) an Environmental Violation with respect to which the Lessee or Lessor could reasonably be expected to incur liability in excess of $2,000,000 per Site or (z) an Event of Taking.

“Event of Taking” shall mean: (A) taking of title to any Improvements or a portion thereof or the related Site or (B) any condemnation, requisition, confiscation, seizure or other taking or sale of the use, occupancy or title to any Improvements or the related Site or any part thereof in, by or on account of any eminent domain proceeding or other action by any Authority or other Person under the power of eminent domain or otherwise or any transfer in lieu or in anticipation thereof (other than a requisition of temporary use) or requisition of use for a period scheduled to last beyond the end of the Lease Term or which in fact is continuing on the Final Maturity Date even if not scheduled to last beyond the Lease Term), in either case, resulting in the loss of use or possession of substantially all or a material portion of such Improvements or the related Site as reasonably determined in good faith by the Board of Directors of the Lessee, such determination to be made promptly after the occurrence of such event and to be evidenced by an Officer’s Certificate of the Lessee delivered promptly after the occurrence of such event to Lessor.

“Existing Improvements” shall mean, collectively, with respect to the Fremont Sites, Existing Improvements (Fremont 1), Existing Improvements (Fremont 3) and Existing Improvements (Fremont 4) and, with respect to the parcels of land located in Livermore, California, Existing Improvements (Port 1) and Existing Improvements (Port 101).

“Existing Improvements (Fremont 1)” shall mean the “class A” corporate office building as described in Schedule IV to the Participation Agreement and on Exhibit A to the Lease Fremont 1 encumbering Site Fremont 1 totaling approximately 145,000 square feet all located on the Site Fremont 1 including all buildings, structures, fixtures, Equipment and other improvements of every kind existing at any time and from time to time on or under such Site, together with any and all appurtenances to such buildings, structures or improvements, including sidewalks, utility pipes, conduits and lines, parking areas and roadways and including all

 

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Alterations and other additions to or changes in the Improvements at any time, as more fully described in the Plans and Specifications.

“Existing Improvements (Fremont 3)” shall mean the “class A” corporate office building as described in Schedule IV to the Participation Agreement and on Exhibit A to the Lease Fremont 3 encumbering Site Fremont 3 totaling approximately 170,000 square feet all located on the Site Fremont 3 including all buildings, structures, fixtures, Equipment and other improvements of every kind existing at any time and from time to time on or under such Site, together with any and all appurtenances to such buildings, structures or improvements, including sidewalks, utility pipes, conduits and lines, parking areas and roadways and including all Alterations and other additions to or changes in the Improvements at any time, as more fully described in the Plans and Specifications.

“Existing Improvements (Fremont 4) ” shall mean the “class A” corporate office building as described in Schedule IV to the Participation Agreement and on Exhibit A to the Lease Fremont 4 encumbering Site Fremont 4 totaling approximately 117,000 square feet all located on the Site Fremont 4 including all buildings, structures, fixtures, Equipment and other improvements of every kind existing at any time and from time to time on or under such Site, together with any and all appurtenances to such buildings, structures or improvements, including sidewalks, utility pipes, conduits and lines, parking areas and roadways and including all Alterations and other additions to or changes in the Improvements at any time, as more fully described in the Plans and Specifications.

“Existing Improvements (Port 1)” shall mean the “class A” corporate office building as described in Schedule IV to the Participation Agreement and on Exhibit A to the Lease Port 1 encumbering Site Port 1 totaling approximately 120,000 square feet all located on the Site Port 1 including all buildings, structures, fixtures, Equipment and other improvements of every kind existing at any time and from time to time on or under such Site, together with any and all appurtenances to such buildings, structures or improvements, including sidewalks, utility pipes, conduits and lines, parking areas and roadways and including all Alterations and other additions to or changes in the Improvements at any time, as more fully described in the Plans and Specifications.

“Existing Improvements (Port 101)” shall mean the “class A” corporate office building as described in Schedule IV to the Participation Agreement and on Exhibit A to the Lease Port 101 encumbering Site Port 101 totaling approximately 120,000 square feet all located on the Site Port 101 including all buildings, structures, fixtures, Equipment and other improvements of every kind existing at any time and from time to time on or under such Site (including those constructed pursuant to the Construction Agency Agreement and those purchased with Advances funded by the Lessor pursuant to the Participation Agreement), together with any and all appurtenances to such buildings, structures or improvements, including sidewalks, utility pipes, conduits and lines, parking areas and roadways and including all Alterations and other additions to or changes in the Improvements at any time, as more fully described in the Plans and Specifications.

 

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“Existing Leases” shall mean, collectively, with respect to the parcels of land located in Fremont, California, the Existing Lease Fremont 1, Existing Lease Fremont 2, Existing Lease Fremont 3 and Existing Lease Fremont 4 and, with respect to the parcels of land located in Livermore, California, the Existing Lease Port 1 and Existing Lease Port 101.

“Existing Lease Fremont 1” shall mean that certain Lease Agreement (Fremont/Building #4) dated as of December 21, 2007 between the Existing Lessor and the Lessee, encumbering Site Fremont 1.

“Existing Lease Fremont 2” shall mean that certain Lease Agreement (Fremont/Building #3) dated as of December 21, 2007 between the Existing Lessor and the Lessee, encumbering Site Fremont 2.

“Existing Lease Fremont 3” shall mean that certain Lease Agreement (Fremont/Building #2) dated as of December 21, 2007 between the Existing Lessor and the Lessee, encumbering Site Fremont 3.

“Existing Lease Fremont 4” shall mean that certain Lease Agreement (Fremont/Building #1) dated as of December 21, 2007 between the Existing Lessor and the Lessee, encumbering Site Fremont 4.

“Existing Lease Port 1” shall mean that certain Lease Agreement (Livermore/Parcel #6) dated as of December 18, 2007 between the Existing Lessor and the Lessee, encumbering Site Port 1.

“Existing Lease Port 101” shall mean that certain Lease Agreement (Livermore/Parcel #7) dated as of December 18, 2007 between the Existing Lessor and the Lessee, encumbering Site Port 101.

“Existing Lessor” shall mean BNP Paribas Leasing Corporation, a Delaware corporation.

“Existing Operative Documents” shall mean the Operative Documents as defined in the respective Existing Leases.

“Existing Sites” shall mean, collectively, with respect to the parcels of land located in Fremont, California, Site Fremont 1, Site Fremont 2, Site Fremont 3 and Site Fremont 4 and, with respect to the parcels of land located in Livermore, California, the Site Port 1 and Site Port 101.

“Expiration True-Up” shall have the meaning provided in Section 22.4(b) of the Lease.

“Extended Remarketing Period” shall have the meaning provided in Section 22.4 of the Lease.

 

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“Fair Market Value” shall mean with respect to any Leased Property or any portion thereof, as of the date of the determination, the fair market value (which in any event shall not be less than zero) as determined by an independent appraiser chosen by the Lessor and reasonably acceptable to the Lessee that would be obtained in an arm’s-length transaction between an informed and willing buyer (other than a buyer currently in possession) and an informed and willing seller, under no compulsion to buy or sell, and neither of which is related to the Lessor or the Lessee or any Affiliate thereof, for the purchase of such Leased Property or any portion thereof, as applicable. Such fair market value shall be calculated as the value for the use of such Leased Property or any such portion, assuming, in the determination of such fair market value, that such Leased Property or any such portion is in the condition and repair required to be maintained by the terms of the Lease (unless such fair market value is being determined for purposes of the Appraisal to be delivered on or prior to the Closing Date for evaluating the items described in Section 7.5 of the Participation Agreement, in which case this assumption shall not be made).

“FATCA” means Sections 1471 through 1474 of the Code and any regulations promulgated thereunder or official interpretations thereof (as amended from time to time).

Federal Funds Rate ” means, for any day, a fluctuating rate per annum (rounded upwards, if necessary, to the nearest 1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by Lessor from three Federal funds brokers of recognized standing reasonably selected by it.

“Fee Letter” shall mean that certain letter dated as of the Closing Date from the Arranger to the Lessee in which Lessee confirmed its agreement to pay the Fees and Transaction Expenses in accordance therewith.

“Fees” shall have the meaning provided in Section 2.6 of the Participation Agreement.

“Final Maturity Date” shall mean the seventh year anniversary of the Closing Date.

“Final Rent Payment Date” shall have the meaning provided in Section 18.1(a)(iii)(B)(1) of the Lease.

“Financial Officer” means the chief financial officer, principal financial officer, principal accounting officer, treasurer, vice president of finance, controller or assistant controller of the Lessee.

 

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Force Majeure Event ” means, with respect to the Leased Property, (a) strikes (including local, national, and industry-wide strikes but excluding any strike or other combined action involving employees (and, with respect to Lease Fremont 3E, either those employed in connection with the Construction of the New Improvements (Fremont 3E) or in any industry essential to the performance of Construction of such Improvements, as applicable) of any LAM Person), lockouts, embargoes, unavoidable casualties, unusual delays in transportation, national emergency, fires, inclement or unusually severe weather conditions (such as catastrophic storms or floods, tornadoes, hurricanes, typhoons, cyclones and tsunamis, earthquakes and other acts of God), wars, civil disturbances, terrorist attacks, revolts, insurrections, sabotage, epidemics, explosions, and actions of a Governmental Authority, or (b) any other event, cause or condition that is not within the control of any LAM Person solely as such event, cause or condition affects Lessee’s obligations under the related Lease or affects the Construction of the New Improvements (Fremont 3E), as applicable; provided that, any Specified Event and any other event, cause or condition that is within the control of any LAM Person shall not be a Force Majeure Event.

Force Majeure Losses means, as of any date of determination with respect to Lease Fremont 3E, amounts funded by the Lessor (other than from the proceeds of insurance or condemnation awards) in connection with a Force Majeure Event which is not a Specified Event.

“Fremont Leases” shall mean, collectively, Lease Fremont 1, Lease Fremont 3, Lease Fremont 3E and Lease Fremont 4.

“Fremont Sites” shall mean, collectively, Site Fremont 1, Site Fremont 3, Site Fremont 3E and Site Fremont 4.

“F.R.S. Board” shall mean the Board of Governors of the Federal Reserve System or any successor thereto.

“Fund,” “Funded” or “Funding” shall mean each funding by the Lessor of a portion of its Equity Investment constituting a portion of any Advance as described in Section 3.4 of the Participation Agreement.

“Funded Claims” shall have the meaning provided in Section 7.1(f) of the Participation Agreement.

“GAAP” shall mean generally accepted accounting principles in the United States as in effect from time to time, consistently applied and maintained on a consistent basis for the Lessee and its Subsidiaries throughout the period indicated.

“Governmental Action” shall mean all applicable permits, authorizations, registrations, consents, approvals, waivers, exceptions, variances, orders, judgments, decrees, licenses, exemptions, publications, filings, notices to and declarations of or with, or required by, any Authority, or required by any Applicable Law, and shall include, without limitation, all citings, Environmental Permits, construction permits and operating permits and licenses that are required for the use, occupancy, zoning, construction and operation of any Leased Property.

 

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“Grossed-Up Basis” shall have the meaning provided in Section 7.4 of the Participation Agreement.

“Hazardous Material” shall mean any substance, waste or material which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous by listing characteristic or definition under any Environmental Law, including petroleum, crude oil or any fraction thereof, petroleum derivatives, by-products and other hydrocarbons and is or becomes regulated by any Authority, including any agency, department, commission, board or instrumentality of the United States, the State of California or any political subdivision thereof and also including, but not limited to, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls (“PCBs”) and radon gas.

“Improvements” shall mean collectively the Existing Improvements and the New Improvements (Fremont 3E).

“Improvements Value Percentage” shall have the meaning provided in Section 22.3(d) of the Lease Fremont 1 and Lease Fremont 4.

“Initial Construction Deliverables” shall have the meaning provided in Section 2.7(o) of the Construction Agency Agreement.

“Indemnitee” shall mean the Lessor and its Affiliates, successors, permitted assigns, permitted transferees, contractors, servants, employees, officers, directors, shareholders, partners, participants, representatives, trustees and agents of each of the foregoing Persons; provided, however, that in no event shall the Lessee or its Affiliates be an Indemnitee and, provided further, that with respect to Lease Fremont 3E, during the Construction Period thereunder, “Indemnitee” is limited exclusively to the Lessor and its successors and permitted assigns.

“Inspecting Parties” shall have the meaning provided in Article XV of the Lease.

“Insurance Requirements” shall mean the terms of the insurance required to be maintained in accordance with the Lease.

Interim Accrual Date ” shall mean, with respect to Lease Fremont 3E, each Monthly Date occurring during the Interim Term and the Base Term Commencement Date therefor.

Interim Accrual Period ” shall mean, with respect to Lease Fremont 3E, the period commencing on and including the Closing Date and ending on but excluding the next Interim Accrual Date.

Interim LIBOR or “Interim LIBOR Rate” shall mean, with respect to an Interim Accrual Period:

(a) a rate per annum determined by the Lessor at approximately 11:00 a.m., London time, on the Yield Determination Date for such Interim Accrual Period by

 

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reference to the Reuters “LIBOR01” screen displaying British Bankers’ Association Interest Settlement Rates (or on any successor or substitute screen provided by Reuters, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such screen, as determined by the Lessor from time to time for purposes of providing quotations of interest rates applicable to deposits in the London interbank market) for deposits in U.S. Dollars for such Interim Accrual Period (or, if no such comparable term is quoted, an interpolated rate as reasonably determined by the Lessor); or

(b) if such rate shall cease to be publicly available pursuant to the foregoing clause (a), the arithmetic mean (rounded upwards, if necessary, to the nearest 1/100 of 1%), as determined by the Lessor (in good faith on a basis that is neither arbitrary nor capricious and which is binding on Lessee absent manifest error), of the rate per annum quoted by the Reference Bank at approximately 11:00 a.m., London time (or as soon thereafter as practicable), on the Yield Determination Date for the Interim Accrual Period for the offering by the Reference Bank to leading banks on the London interbank market of deposits in U.S. Dollars having a term of one week or one month, at Lessee’s option; provided that if any Reference Bank does not timely furnish such information for determination of any Interim LIBOR Rate, the Lessor shall determine such Interim LIBOR Rate on the basis of the information timely furnished by another reference bank as determined by the Lessor. Interim LIBOR shall be determined by the Lessor and promptly notified to the Lessee.

Interim Rent ” shall mean, with respect to Lease Fremont 3E, as determined as of each Interim Accrual Date, the amounts payable pursuant to Section 2.3(a) of the Participation Agreement.

Interim Term ” shall mean, with respect to Lease Fremont 3E, the Construction Period.

Interim Yield shall mean with respect to each Interim Accrual Period (a) the Interim Yield Rate for such Interim Accrual Period multiplied by (b) the aggregate Equity Investment outstanding with respect to Lease Fremont 3E.

“Interim Yield Rate” shall mean, for any Interim Accrual Period, (i) a rate per annum equal to the Interim LIBOR Rate for such Interim Accrual Period plus the Applicable Margin, or (ii) at any time that the provisions of Section 2.9(a) or (b) of the Participation Agreement shall apply to the Equity Investment, a rate per annum equal to the Alternate Base Rate plus the Applicable Margin.

Interior Buildout shall mean the interior office and laboratory build out of the Building Shell.

“LAM Person” shall mean (i) the Lessee or the Constructor, (ii) any contractor, subcontractor, architect, engineer or Person performing services or providing materials with respect to the construction of the New Improvements (Fremont 3E), (iii) any other third party for which any Person identified in clauses (i) or (ii) above has control or supervisory authority (by

 

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contract or otherwise), and (iv) the respective Affiliates (other than, prior to Completion, those Affiliates that are Persons under common control with any Person identified in clauses (i) through (iii) above) employees, officers or agents of any Person identified in clauses (i) through (iii) above.

“Land Value Percentage” shall have the meaning provided in Section 22.3(d) of Lease Fremont 1 and Lease Fremont 4.

“Lease Balance” shall mean, as of any date of determination and as to any particular Lease, an amount equal to the aggregate sum, without duplication, of the outstanding Equity Investment of the Lessor Advanced with respect to such Lease which, with respect to the Equity Investment related to Lease Fremont 3E, will include any amounts Advanced by the Lessor during the Construction Period in excess of its Construction Commitment and any Capitalized Yield minus any Qualified Prepayments and, with respect to the Equity Investment related to all other Sites, will include any amounts Advanced by the Lessor on the Closing Date with respect thereto. Except as such term is used with respect to less than all of the Leases and except as otherwise expressly required pursuant to Section 18.5 of the Lease, any reference to the Lease Balance shall be to the Lease Balance taken as a whole.

“Lease Commitment” shall mean the portion of the Commitment available to acquire Sites (other than the Unimproved Land) and the Existing Improvements thereon and to pay Fees and Transaction Expenses related thereto, as set forth on Schedule I to the Participation Agreement with respect to each such Site.

“Lease Expiration Date” shall mean the Base Term Expiration Date, subject to] any date on which the Lease is terminated including pursuant to Article XIII, XVIII, XX, XXI or XXII of the Lease.

“Lease Fremont 1” shall mean that certain Amended and Restated Lease Agreement dated as of the Closing Date between the Lessor and the Lessee, encumbering Site Fremont 1.

“Lease Fremont 3” shall mean that certain Amended and Restated Lease Agreement dated as of the Closing Date between the Lessor and the Lessee, encumbering Site Fremont 3.

“Lease Fremont 3E” shall mean that certain Amended and Restated Lease Agreement dated as of the Closing Date between the Lessor and the Lessee, encumbering Site Fremont 3E.

“Lease Fremont 4” shall mean that certain Amended and Restated Lease Agreement dated as of the Closing Date between the Lessor and the Lessee, encumbering Site Fremont 4.

“Lease Port 1” shall mean that certain Amended and Restated Lease Agreement dated as of the Closing Date between the Lessor and the Lessee, encumbering Site Port 1.

 

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“Lease Port 101” shall mean that certain Amended and Restated Lease Agreement dated as of the Closing Date between the Lessor and the Lessee, encumbering Site Port 101.

“Lease Term” shall have the meaning provided in Section 2.2 of the Lease.

“Leased Property” shall mean, with respect to each Site, the Improvements, the Fixtures, the Appurtenant Rights, the Personal Property and such Site.

“Leases” shall mean, collectively, with respect to the Sites located in Fremont, California, Lease Fremont 1, Lease Fremont 3, Lease Fremont 3E and Lease Fremont 4 and, with respect to the Sites located in Livermore, California, Lease Port 1 and Lease Port 101.

“Lessee” shall mean LAM Research Corporation, a Delaware corporation.

“Lessee Collateral” shall mean the Mortgaged Property and Personal Property of the Lessee with respect to which a lien is granted pursuant to the related Memorandum of Lease, the Cash Collateral and other property subject to the Pledge Agreement, the accounts and funds and securities subject to the Blocked Account Agreement, the contracts and rights and properties assigned pursuant to the Assignment of Contracts and, in each case, all proceeds and income therefrom.

“Lessor” shall mean BTMU Capital Leasing & Finance, Inc., a Delaware corporation.

“Lessor Liens” shall mean Liens on or against any Leased Property, Site, Lease or any payment of Rent (a) which result from any act of, or any Claim against the Lessor unrelated to the transactions contemplated by the Operative Documents, (b) which result from any Tax owed by the Lessor except any Tax for which the Lessor is entitled to indemnification under the Operative Documents, or (c) which result from any act or omission of the Lessor that is in breach of such Person’s covenants or agreements under the Operative Documents.

“LIBOR” or “ LIBOR Rate ” shall mean, with respect to a Payment Period a rate per annum equal to the greater of 0.125% and the following:

(a) the rate per annum determined by the Lessor at approximately 11:00 a.m., London time, on the Yield Determination Date for such Payment Period by reference to the Reuters “LIBOR01” screen displaying British Bankers’ Association Interest Settlement Rates (or on any successor or substitute screen provided by Reuters, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such screen, as determined by the Lessor from time to time for purposes of providing quotations of interest rates applicable to deposits in the London interbank market) for deposits in U.S. Dollars for such Payment Period (or, if no such comparable term is quoted, an interpolated rate as reasonably determined by the Lessor); or

 

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(b) if such rate shall cease to be publicly available pursuant to the foregoing clause (a), the arithmetic mean (rounded upwards, if necessary, to the nearest 1/100 of 1%), as determined by the Lessor (in good faith on a basis that is neither arbitrary nor capricious and which is binding on Lessee absent manifest error), of the rate per annum quoted by the Reference Bank at approximately 11:00 a.m., London time (or as soon thereafter as practicable), on the Yield Determination Date for the Payment Period for the offering by the Reference Bank to leading banks on the London interbank market of deposits in U.S. Dollars having a term of one week or one month, at Lessee’s option; provided that if any Reference Bank does not timely furnish such information for determination of any LIBOR Rate, the Lessor shall determine such LIBOR Rate on the basis of the information timely furnished by the another reference bank as determined by the Lessor. LIBOR shall be determined by the Lessor and promptly notified to the Lessee.

“LIBOR Equity Investment” shall mean the Equity Investment, the Interim Yield or Yield, as applicable, which is determined with respect to the Interim LIBOR Rate or the LIBOR Rate, as applicable.

“LIBOR Office” shall mean initially, the funding office of Lessor designated as such in Schedule II to the Participation Agreement; and thereafter, such other office of Lessor, if any, which shall be making or maintaining the Equity Investment.

“LIBOR Reserve Percentage” shall mean, relative to any Payment Period, the reserve percentage (expressed as a decimal) equal to the maximum aggregate reserve requirements (including all basic, emergency, supplemental, marginal and other reserves and taking into account any transitional adjustments or other scheduled changes in reserve requirements) specified under regulations issued from time to time by the F.R.S. Board and then applicable to assets or liabilities consisting of and including “Eurocurrency Liabilities”, as currently defined in Regulation D of the F.R.S. Board, having a term approximately equal or comparable to such Payment Period.

“Lien” shall mean any lien, mortgage, deed of trust, encumbrance, pledge, charge, lease, easement, servitude, right of others or security interest of any kind, including any thereof arising under any conditional sale or other title retention agreement.

“Major Construction Document” shall have the meaning provided in Section 2.4 of the Construction Agency Agreement.

“Material Adverse Effect” shall mean a material adverse effect on (i) the assets, business, operations, properties, condition, financial or otherwise, of the Lessee and its Subsidiaries, taken as a whole, (ii) the ability or authority of the Lessee to perform its obligations under the Operative Documents to which it is a party, (iii) the rights or remedies available to the Lessor under any Operative Document which apply to a particular Lease, or (iv) with respect to a particular Lease, the value, condition, utility or useful life of the related Leased Property or the rights or interests of the Lessor in the related Leased Property.

 

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“Material Default” shall mean any event, condition or failure which, with notice or lapse of time or both, would become an Event of Default of the type described in clause (a), (b), (c), (h) or (i) of Article XVII of the Lease.

“Material Environmental Violation” shall have the meaning provided in Section 16.2 of the Lease.

“Material Plan” shall have the meaning provided in Article XVII of the Lease.

“Maximum Remarketing Obligation (Improvements)” shall mean, with respect to (i) Site Fremont 3E and prior to Completion only, 89.95% of the Eligible Construction Costs attributable to the Construction of New Improvements (Fremont 3E), and (ii) Existing Improvements (Fremont 1) and Existing Improvements (Fremont 4), the percentages of the Lease Balance under Lease Fremont 1 and Lease Fremont 4 attributable to the acquisition of such Existing Improvements as set forth on Schedule A to Lease Fremont 1 and Lease Fremont 4, respectively.

“Maximum Remarketing Obligation (Land)” shall mean, with respect to (i) Site Fremont 3E and prior to Completion only, the amount set forth on Schedule A to Lease Fremont 3E equal to the Eligible Construction Costs attributable to the acquisition of Site 3E, and (ii) Site Fremont 1 and Site Fremont 4, the amounts set forth on Schedule A to Lease Fremont 1 and Lease Fremont 4 attributable to the acquisition of such Sites, respectively.

“Memorandum of Lease” shall mean for each Lease, that certain Memorandum of Lease, Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated as of the Closing Date by and between Lessee and Lessor.

“Monthly Date” shall mean the thirty-first (31 st ) calendar day of each month except in the case of any month in which there is no corresponding date thereto in which case shall mean the final calendar day of such month (or the prior Business Day if such day is not a Business Day).

“Moody’s” shall mean Moody’s Investor Service, Inc., or any successor thereto.

“Mortgaged Property” shall have the respective meanings set forth in each of the Memoranda of Lease.

“Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which Lessee or any ERISA Affiliate is then making or accruing an obligation to make contributions or has within the preceding five years made contributions, including for these purposes any Person which ceased to be an ERISA Affiliate during such five year period.

“New Improvements (Fremont 3E)” shall mean the “class A” corporate office building as described in Schedule IV to the Participation Agreement and on Exhibit A to the Lease Fremont 3E encumbering Site Fremont 3E totaling approximately 134,000 square feet to be located on the Site Fremont 3E including all buildings, structures, fixtures, Equipment and

 

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other improvements of every kind existing at any time and from time to time on or under such Site including those constructed pursuant to the Construction Agency Agreement and those purchased with Advances funded by the Lessor pursuant to the Participation Agreement, together with any and all appurtenances to such buildings, structures or improvements, including sidewalks, utility pipes, conduits and lines, parking areas and roadways and including all Alterations and other additions to or changes in the Improvements at any time, as more fully described in the Plans and Specifications.

“Non-severable” shall describe an Alteration or part of an Alteration or fixture, addition or improvement which (i) cannot be readily removed from the Leased Property without causing damage to the Leased Property or the Site which cannot be readily repaired, or (ii) is required for the Leased Property to comply with Applicable Law and Insurance Requirements.

“Non-Utilization Fee” shall have the meaning provided in Section 2.6(b) of the Participation Agreement.

“Non-Utilization Fee Rate” shall mean a rate per annum equal to twenty-five one hundredth of one percent (0.25%).

“Notice of Change in Law” shall have the meaning provided in Section 2.9(b) of the Participation Agreement.

“Notice of Inability to Determine Rates” shall have the meaning provided in Section 2.9(a) of the Participation Agreement.

“OFAC” shall mean the Office of the Foreign Assets Control of the U.S. Treasury Department.

“Officer’s Certificate” of a Person shall mean a certificate signed by the Chairman of the Board of Directors and/or the President and/or any Executive Vice President and/or any Senior Vice President and/or any other Vice President, Managing Director, Principal and/or other authorized representative(s) of such Person, provided, that with respect to the Lessee, whomever signs the certificate is authorized to represent such Person, and no more than any one of the foregoing individuals shall be required to sign such certificate.

“Operative Documents” shall mean, as the context requires:

 

  (1) the Participation Agreement;

 

  (2) each Lease;

 

  (3) the Construction Agency Agreement;

 

  (4) each Memorandum of Lease;

 

  (5) each Pledge Agreement;

 

  (6) the Blocked Account Agreement;

 

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  (7) each Assignment of Contract; and

 

  (8) each Deposit Agreement.

“Other Lease Document” means, with respect to any Lease, Memorandum of Lease, Pledge Agreement or Blocked Account Agreement, as the case may be, and the Site to which such Operative Documents relate, each Lease, Memorandum of Lease, Pledge Agreement or Blocked Account Agreement, respectively, which relates to a different Site and with respect to each Site other than Site Fremont 3E, the Construction Agency Agreement.

“Overall Transaction” shall mean all the transactions and activities referred to in or contemplated by the Operative Documents.

“Overdue Rate” shall mean the lesser of (a) the highest interest rate permitted by Applicable Law and (b) an interest rate per annum equal to the Interim Yield Rate or the Yield Rate, as applicable, plus two percent (2%).

“Participation” shall have the meaning provided in Section 6.4 of the Participation Agreement.

“Participation Agreement” shall mean the Participation Agreement dated as of the Closing Date between the Lessee and the Lessor.

“Participation Holder” shall have the meaning provided in Section 6.4 of the Participation Agreement.

“Payment Date” shall mean (i) with respect to Yield determined by reference to the LIBOR Rate, the Quarterly Date immediately following the prior Payment Period, (ii) with respect to Yield determined by reference to the Alternate Base Rate, the Monthly Date immediately following the prior Payment Period, and (iii) with respect to the final Payment Period, the Final Maturity Date.

“Payment Period” shall mean (i) with respect to Yield determined by reference to the LIBOR Rate, a period of three (3) or six (6) months commencing on the Base Term Commencement Date or the Quarterly Date immediately following the prior Payment Period and ending on the day immediately preceding the Quarterly Date occurring three (3) or six (6) months thereafter, as determined pursuant to Section 2.8(b) of the Participation Agreement, and (ii) with respect to Yield determined by reference to the Alternate Base Rate, a period of one (1) month commencing on the Base Term Commencement Date or the Monthly Date immediately following the prior Payment Period and ending on the day immediately preceding the Monthly Date occurring one (1) month thereafter, as determined pursuant to Section 2.8(c) of the Participation Agreement, provided, that, in each case, any Payment Period that would otherwise extend beyond the Final Maturity Date shall end on the Final Maturity Date.

“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA or any successor agency.

 

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“Permitted Contest” shall mean actions taken by a Person to contest in good faith, by appropriate proceedings initiated timely and diligently prosecuted, the legality, validity or applicability to a Leased Property, a Site or any interest in a Leased Property, a Site or to the operation, use or maintenance of a Leased Property and a Site or the Overall Transaction by, any Person of: (a) any Applicable Law; (b) any term or condition of, or any revocation or amendment of, or other proceeding relating to, any Governmental Action; or (c) any Lien or Tax; provided that the initiation and prosecution of such contest (i) would not in the reasonable opinion of an Indemnitee to which such proceeding relates, involve (A) the possible imposition of any criminal liability or penalty or civil penalty on such Indemnitee, or (B) a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Lien) on any Leased Property or any Site or any part of any thereof or the right of the Lessor to receive payment of the Equity Investment of or Yield on any such Equity Investment, the Lease Balance or any interest therein; (ii) in the reasonable opinion of an Indemnitee to which such proceeding relates, the control of such proceeding would not involve an actual or potential legal conflict of interest; (iii) would not be reasonably likely to adversely affect the Fair Market Value, utility or remaining useful life of any Leased Property, any Site or any interest in any Leased Property or any Site or the continued economic operation of any Leased Property or any Site; or (iv) such proceeding involves Claims not fully indemnified by Lessee which Lessee and the Indemnitee to which such proceeding relates have been unable to sever from the indemnified Claims, unless the Lessee shall have agreed in a writing reasonably satisfactory to such Indemnitee to defend, indemnify, protect, save and keep harmless such Indemnitee on a Grossed-Up Basis from such otherwise not fully indemnified Claim and, provided further that, in any event reserves to the extent required by GAAP are maintained against any adverse determination of such proceeding.

“Permitted Investments” shall mean (i) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States (or by any agency thereof to the extent (a) such obligations are backed by the full faith and credit of the United States and (b) such agency and the United States are rated at least “Aa2” by Moody’s and at least “AA” by S&P), in each case maturing within one year from the date of acquisition thereof, (ii) investments in certificates of deposit, deposit accounts, banker’s acceptances and time deposits maturing within 365 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, the Collateral Agent or any domestic office of any commercial bank organized under the laws of the United States or any State thereof that has a combined capital and surplus and undivided profits of not less than $500,000,000, (iii) commercial paper of companies, banks, trust companies or national banking associations (in each case excluding the Lessee and its Affiliates) incorporated or doing business under the laws of the United States or one of the States thereof, in each case having a remaining term until maturity of not more than 180 days from the date such investment is made and rated at least “P-1” by Moody’s or at least “A-1” by S&P, (iv) investments in money market mutual funds rated in the highest short-term rating category of at least one nationally recognized rating agency (including any such funds for which the Collateral Agent or an affiliate may be acting as an investment advisor or providing other services) and (v) repurchase agreements maturing within one (1) year with any financial institution having combined capital and surplus of not less than $500,000,000 with any of the obligations described in clauses (i) through (v) as collateral so long as title to the underlying obligations pass to the Collateral Agent and such underlying

 

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securities shall be segregated in a custodial or trust account for the benefit of the Collateral Agent.

“Permitted Liens” shall mean (a) the respective rights and interests of the Lessee and the Lessor, as provided in the Operative Documents, (b) Lessor Liens, (c) Liens for Taxes either not yet delinquent or being contested in good faith and by appropriate proceedings diligently conducted and in any event constituting a Permitted Contest, (d) materialmen’s, mechanics’, workers, repairmen’s, employees’ or other like Liens arising in the ordinary course of business for amounts either not yet delinquent or being contested in good faith and by appropriate proceedings diligently conducted and in any event constituting a Permitted Contest, (e) Liens arising after the Closing Date out of judgments or awards not otherwise constituting an Event of Default under clause (k) of Article XVII of the Lease and with respect to which at the time an appeal or proceeding for review is being prosecuted in good faith and either (x) (A) with respect to such Liens arising on or prior to a Completion Date with respect to Unimproved Land, have been bonded to the satisfaction of the Lessor, or (B) with respect to such Liens arising on a Leased Property not subject to Construction, have been reserved for to the extent required by GAAP, or (y) the enforcement of such Lien has been stayed pending such appeal or review, (f) all encumbrances and other matters disclosed in the title insurance policies delivered to Lessor at Closing, (g) during the Base Term, other Liens encumbering any Leased Property securing amounts not exceeding $1,000,000 in the aggregate; provided that such $1,000,000 in Liens shall not have been created, in whole or in part, by any affirmative pledge or other affirmative grant of such Lien on the part of the Lessee, and (h) Liens arising after the Closing Date which are expressly approved by the Lessor in accordance with the Operative Documents.

“Permitted Transfer” shall mean any of the following:

 

  (1) any assignment or conveyance by Lessor requested by Lessee or required by any Permitted Lien or by Applicable Laws; or

 

  (2) any conveyance to a Qualified Affiliate of Lessor of all or any interest in or rights with respect to the Leased 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 Lessee under the Operative Documents, including its Purchase Option.

“Person” shall mean any individual, partnership, corporation, limited liability company, trust, association, joint venture, joint stock company, un-incorporated organization, Authority or any other entity.

“Personal Property” shall mean, (a) all tangible personal property located on the Site that could constitute fixtures under the UCC and all renewals or replacements of or substitutions for any such personal property; and (b) any permits, licenses, franchises, certificates and other rights and privileges against third parties, in each such case, related to the Site.

“Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Lessee or any ERISA Affiliate is (or, if

 

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such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

“Plans and Specifications” shall mean the plans and specifications necessary to construct the New Improvements (Fremont 3E) into one Class “A” office building and delivered to the Lessor and the Appraiser pursuant to Section 3.3(l) of the Participation Agreement and updated and supplemented pursuant to Sections 2.7(o) or 3.2 of the Construction Agency Agreement including, without limitation, working drawings, detailed layouts for component parts thereof and other drawings and specifications of every kind and description required to assemble and construct the Improvements.

“Pledge Agreement” shall mean, collectively, the Pledge Agreements for each of the Leased Properties relating to the pledging and holding of the Cash Collateral.

“Pledge Agreement (Fremont 1) shall mean the Pledge Agreement for Lease Fremont 1 relating to the pledging and holding of the Cash Collateral.

“Pledge Agreement (Fremont 3) shall mean the Pledge Agreement for Lease Fremont 3 relating to the pledging and holding of the Cash Collateral.

“Pledge Agreement (Fremont 3E) shall mean the Pledge Agreement for Lease Fremont 3E relating to the pledging and holding of the Cash Collateral.

“Pledge Agreement (Fremont 4) shall mean the Pledge Agreement for Lease Fremont 4 relating to the pledging and holding of the Cash Collateral.

“Pledge Agreement (Port 1) shall mean the Pledge Agreement for Lease Port 1 relating to the pledging and holding of the Cash Collateral.

“Pledge Agreement (Port 101) shall mean the Pledge Agreement for Lease Port 101 relating to the pledging and holding of the Cash Collateral.

Prime Rate ” shall mean a fluctuating per annum rate, as of any date of determination, equal to the rate of interest publicly announced from time to time by The Bank of Tokyo-Mitsubishi UFJ, Ltd. as its prime rate in effect at its principal office in New York City. Each change in the Prime Rate shall be effective from and including the date such change is publicly announced by The Bank of Tokyo-Mitsubishi UFJ, Ltd. as being effective.

“Principal Officer” of Lessee shall mean, any of the following officers: Chief Financial Officer, Chief Operating Officer, Secretary, Assistant Secretary, Controller, Treasurer or Vice President of Finance. If any of the titles of the preceding officers are changed after the date hereof, the term “Principal Officer” shall thereafter mean any officer performing substantially the same functions as are currently performed by one or more of the officers listed in the first sentence of this definition.

“Prohibited ERISA Transaction” shall have the meaning provided in Section 5.3(f) of the Participation Agreement.

 

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“Prohibited Person” shall mean a Person that is (i) on the SDNL or (ii) in violation of any money laundering law, regulation or order, including the USA PATRIOT Act.

“Purchase Option” shall have the meaning provided in Section 21.1(a) of the Lease.

“Qualified Affiliate” means any Person that, like Lessor, (i) is one hundred percent (100%) owned, directly or indirectly, by Lessor’s parent or any successor of such bank, (ii) can make (and has in writing made) the same representations to Lessee that Lessor has made in Section 4.2 of the Participation Agreement (except that such Person need not be a Delaware entity) and can deliver the letter described in Section 3.2(d) of the Participation Agreement, and (iii) is an entity organized under the laws of the State of Delaware or another state within the United States of America.

“Qualified Prepayment” shall mean any repayment of Lease Balance (excluding for clarification, any payments of Yield or Break Funding Amounts) arising pursuant to Articles XIII, XVIII, or XX of the Lease.

“Quarterly Date” shall mean every third successive Monthly Date.

“Recorder’s Office” shall mean the Office of the Clerk-Recorder of Alameda County, California.

“Recourse Deficiency Amount” shall mean an amount equal to (A) in the case of Lease Fremont 1, Lease Fremont 4 and Lease Fremont 3E prior to Completion, (i) the Maximum Remarketing Obligation (Improvements) plus (ii) the Maximum Remarketing Obligation (Land), and (B) in the case of Lease Fremont 3, Lease Port 1 and Lease Port 101 and Lease Fremont 3E following Completion, the Recourse Deficiency Amount will be the percentages of the Lease Balances thereunder as set forth on Schedule A to Lease Fremont 3, Lease Port 1, Lease Port 101 and Lease Fremont 3E, respectively.

“Reference Bank” shall mean The Bank of Tokyo-Mitsubishi UFJ, Ltd.

“Release” shall mean the release, deposit, disposal or leak of any Hazardous Material into or upon or under any land or water or air, or otherwise into the environment, including, without limitation, by means of burial, disposal, discharge, emission, injection, spillage, leakage, seepage, leaching, dumping, pumping, pouring, escaping, emptying, placement and the like.

“Remarketing Option” shall have the meaning provided in Section 20.3 of the Lease.

“Remarketing Sale Date” shall have the meaning provided in Section 20.3 of the Lease.

“Remarketing Sale Proceeds” shall mean the net sale proceeds actually received in cash by the Lessor from sale of the Leased Property pursuant to Section 20.3 of the Lease after

 

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deduction for any transfer tax thereon not paid by the purchaser thereof, any costs or expenses incurred by the Lessee and/or the Lessor in connection with the actions required under Section 20.3 of the Lease or any other amounts deducted from the gross sale proceeds in connection with such sale.

“Remediation” shall have the meaning provided in Section 16.1 of the Lease.

“Rent” shall mean Basic Rent and Supplemental Rent, collectively.

“Responsible Officer” shall mean Chief Financial Officer, Chief Operating Officer, Vice President of Global Operations, Secretary, Assistant Secretary, Controller, Treasurer or Vice President of Finance.

“Return Date” shall mean the Final Maturity Date.

“Return Option” shall have the meaning provided in Section 21.1(b) of the Lease.

“Sale Closing Documents” shall have the meaning provided in the Existing Agreement Regarding Options.

“Sale Proceeds” shall mean the gross sale proceeds actually received in cash by the Lessor from sale of the Leased Property pursuant to Article XVIII or Article XXII of Lease Fremont 3, Lease Fremont 3E, Lease Port 1 or Lease Port 2, as applicable, minus any transfer tax thereon not paid by the purchaser thereof and minus the aggregate amount of any costs or expenses incurred by the Lessee and/or the Lessor in connection with the actions required under Article XVIII or Article XXII of such Lease, excluding, in the case of the Lessee, any provision of such Article XXII which expressly specifies that the Lessee’s costs shall not be reimbursable out of gross sale proceeds and, with respect to Lease Fremont 1 and Lease Fremont 4, “Sale Proceeds” shall mean the Sale Proceeds – Special Land Value.

“Sale Proceeds (Improvements)” shall mean, as of any date of determination, the portion of the gross sale proceeds actually received in cash by the Lessor from the sale of the Leased Property pursuant to Article XXII of the Lease which is attributable to the Improvements minus any transfer tax thereon not paid by the purchaser thereof and minus the aggregate amount of any costs or expenses incurred by the Lessee and/or the Lessor in connection with the actions required under Article XXII of the Lease, excluding, in the case of the Lessee, any provision of Article XXII which expressly specifies that the Lessee’s costs shall not be reimbursable out of gross sale proceeds. Such portion will equal the amount of any such cash payment actually received by the Lessor multiplied by the Improvements Value Percentage.

“Sale Proceeds (Land)” shall mean, as of any date of determination, the portion of the gross sale proceeds actually received in cash by the Lessor from the sale of the Leased Property pursuant to Article XXII of the Lease which is attributable to the Site minus any transfer tax thereon not paid by the purchaser thereof and minus the aggregate amount of any costs or expenses incurred by the Lessee and/or the Lessor in connection with the actions required under Article XXII of the Lease, excluding, in the case of the Lessee, any provision of

 

29


Article XXII which expressly specifies that the Lessee’s costs shall not be reimbursable out of gross sale proceeds. Such portion will equal the amount of any such cash payment actually received by the Lessor multiplied by the Land Value Percentage.

“Sale Proceeds – Special Land Value” shall mean, with respect to Lease Fremont 1 and Lease Fremont 4, as of any date of determination, the sum of (a) the Sale Proceeds (Improvements) with respect to the Improvements described therein plus (b) Sale Proceeds (Land) with respect to the Site described therein.

“SDNL” shall mean the list of Specially Designated Nationals and Blocked Persons issued by OFAC.

“SEC” shall mean the United States Securities and Exchange Commission and any successor thereto.

“Security Documents” shall mean, collectively, each Assignment of Contracts, the Blocked Account Agreement, each Memorandum of Lease and each Pledge Agreement.

“Securities Act” shall mean the Securities Act of 1933.

“Securities Exchange Act” shall mean the Securities Act of 1933.

“Shared Parking Agreement” shall mean the Shared Parking Agreement dated as of the Closing Date between the owner of the Site Fremont 3 and the owner of Site Fremont 4.

“Shared Use Agreement” shall mean (i) a Shared Use Agreement dated on or before the Return Date among the owners of the Fremont Sites, and (ii) a Shared Use Agreement dated on or before the Return Date among the owners of the Site Port 1 and Site Port 101.

“Site” shall mean, collectively, with respect to the parcels of land located in Fremont, California, Site Fremont 1, Site Fremont 3, Site Fremont 3E and Site Fremont 4 and, with respect to the parcels of land located in Livermore, California, Site Port 1 and Site Port 101, all as described in Schedule IV to the Participation Agreement and on Exhibit A to the respective Leases encumbering such Sites.

“Site Fremont 1” shall mean the parcel of land located at 4650 Cushing Parkway, Fremont, California, as described in Schedule IV to the Participation Agreement and on Exhibit A to Lease Fremont 1 encumbering such land.

“Site Fremont 2” shall mean the parcel of land located at 4540 Cushing Parkway, Fremont, California, as described in the Existing Lease Fremont 2.

“Site Fremont 3” shall mean the parcel of land generally located at 4400 Cushing Parkway, Fremont, California, as described in Schedule IV to the Participation Agreement and on Exhibit A to Lease Fremont 3 encumbering such land.

 

30


“Site Fremont 3E” shall mean the parcel of land generally located at 4540 Cushing Parkway, Fremont, California, as described in Schedule IV to the Participation Agreement and on Exhibit A to Lease Fremont 3E encumbering such land.

“Site Fremont 4” shall mean the parcel of land located at 4300 Cushing Parkway, Fremont, California, as described in Schedule IV to the Participation Agreement and on Exhibit A to Lease Fremont 4 encumbering such land.

“Site Port 1” shall mean the parcel of land located at 1 Portola Avenue, Livermore, California, as described in Schedule IV to the Participation Agreement and on Exhibit A to Lease CA Port 1 encumbering such land.

“Site Port 101” shall mean the parcel of land located at 101 Portola Avenue, Livermore, California, as described in Schedule IV to the Participation Agreement and on Exhibit A to Lease CA Port 101 encumbering such land.

“Soft Costs” shall mean Construction Costs incurred for the production of the Plans and Specifications, architectural and engineering fees, legal and accounting fees, permit and license fees and other such similar costs.

“Solvent” shall mean, with respect to any Person, that as of the date of determination both (i) the then fair saleable value of the assets of such Person is (y) greater than the total amount of liabilities of such Person and (z) not less than the amount that will be required to pay the probable liabilities on such Person’s then existing debts as they become absolute and matured considering all financing alternatives and potential asset sales reasonably available to such Person; and (ii) such Person is “solvent” within the meaning given that term and similar terms under applicable laws relating to fraudulent transfers and conveyances.

“Specified Event” shall mean (i) any Event of Default described in clause (h) or (i) of Article XVII of the Lease with respect to the Lessee, (ii) fraud, misapplication of funds, illegal acts or willful misconduct (including, without limitation, the failure to maintain insurance required by Section 11.1 of the Lease, as applicable) on the part of any LAM Person, (iii) with respect to Claims pursuant to Section 7.1(a)(vii) of the Participation Agreement, any acts, events, conditions or circumstances existing or occurring with respect to the Site on or prior to the day on which the Existing Lease was entered into, or (iv) third-party claims caused by or arising out of any act or failure to act (including third-party claims caused by or arising out of any misrepresentation or the failure to comply with the Operative Documents including, without limitation, the failure to maintain insurance required by the Lease) by any LAM Person (other than claims to the extent arising directly or indirectly out of the Lessee’s failure to complete construction of the Improvements or to cause construction to be Completed by the Construction Period Termination Date).

“S&P” shall mean Standard & Poor’s Rating Services, a division of the McGraw- Hill Companies, Inc. or any successor thereto.

“Structuring Fee” shall have the meaning provided in Section 2.6(a) of the Participation Agreement.

 

31


“Subsidiary” shall mean, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.

“Supplemental Rent” shall mean any and all amounts, liabilities and obligations other than Basic Rent which the Lessee assumes or agrees or is otherwise obligated to pay under the Lease or any other Operative Document (whether or not designated as Supplemental Rent) to the Lessor or any other Person including Break Even Price, Break Funding Amounts, Additional Costs, Recourse Deficiency Amount, the amounts payable pursuant to Section 7.5 of the Participation Agreement and indemnities and damages for breach of any covenants, representations, warranties or agreements.

“Survey” shall mean, collectively, the as-built ALTA Surveys prepared by Kier & Wright and by RJA, each dated December 23, 2013, of each Site.

“Taxes” and “Tax” shall mean any and all fees (including, without limitation, documentation, recording, license and registration fees and public dues, taxes (including, without limitation, income (whether net, gross or adjusted gross), gross receipts, sales, rental, use, value added, net asset, property, real estate transfer, transfer, excise and stamp taxes), levies, imposts, duties, charges, assessments or withholdings of any nature whatsoever imposed by an Authority, together with any penalties, fines or interest thereon or additions thereto.

Title Insurance Company ” shall mean the insurance company that has or will issue the title policies with respect to the Leased Property, which company shall be reasonably acceptable to the Lessor.

Title Policy ” shall have the meaning provided in Section 3.1(n) of the Participation Agreement.

“Transaction Costs” shall mean reasonable, properly documented, out-of-pocket costs, expenses and fees incurred by the Lessee, the Lessor and the Arranger in connection with the consummation of the transactions contemplated by the Operative Documents, and the preparation, negotiation, syndication, execution and delivery of the Operative Documents including, without duplication, (1) the reasonable and properly documented fees and expenses of Jones Day as special counsel to the Lessee; (2) the reasonable and properly documented fees and expenses of Dechert LLP; (3) all fees and expenses of the Appraiser with respect to the Appraisal payable in accordance with the fee agreement between the Appraiser and the Lessor; (4) all taxes and search fees, recording fees and filing fees incurred in connection with lien searches and the recording, registering or filing any Operative Document, any deed, declaration, mortgage, security agreement, notice, release, discharge, termination or financing statement with any public

 

32


office, registry or governmental agency; (5) all reasonable and properly documented costs, expenses and fees of one company engaged to survey the Site and one company engaged to issue an environmental report for the Site; (6) all fees and expenses of the Construction Consultant with respect to the Construction Report payable in accordance with the fee agreement between the Construction Consultant and the Arranger; (7) all premiums and other fees and expenses of the Title Company with respect to its issuance of the Title Policy; (8) all fees and expenses of the environmental consultant with respect to the Phase I environmental report issued on or before the Closing Date; (9) all applicable Fees; and (10) all fees, costs and expenses set forth in the initial Advance Request.

UCC Financing Statement ” shall mean the UCC-1 Financing Statements to be filed with respect to the Lessee Collateral.

“Uniform Commercial Code” or the “ UCC ” shall mean the Revised Uniform Commercial Code as enacted in the State of New York.

“Unimproved Land” shall mean Site Fremont 3E.

U.S. Corporation ” shall mean a corporation incorporated under the laws of the United States or any state thereof.

“USA PATRIOT Act” shall have the meaning provided in Section 4.1 of the Participation Agreement.

“Valuation Procedure” shall have the respective meanings provided in Section 22.3(d) of the Lease Fremont 1 and the Lease Fremont 4.

“Voting Stock” shall mean outstanding equity or voting interests (or other similar interests) in a Person having voting power for the election of a majority of directors or Persons performing similar functions of such Person.

“Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan within the meaning of Part I of Subtitle E of Title IV of ERISA.

“Withholding Taxes” shall mean Taxes arising under the laws of any national, municipal or local government, political subdivision or taxing authority of the United States or any other jurisdiction imposed or collected by way of withholding (regardless of whether such taxes may also be imposed upon or collected from the recipient of a payment), and fines, interest, penalties or other additions thereto, thereon, in lieu thereof or for noncollection or in respect thereof.

“Yield” shall mean with respect to each Payment Period under each Lease (a) the Yield Rate for such Payment Period multiplied by (b) the aggregate Equity Investment outstanding.

 

33


Yield Determination Date ” shall mean in respect of each Payment Period or Interim Accrual Period, as applicable, the date which is two (2) Business Days prior to the commencement of such Payment Period or Interim Accrual Period.

“Yield Rate” shall mean, for any Payment Period, (i) a rate per annum equal to the LIBOR Rate for such Payment Period plus the Applicable Margin or, (ii) at any time that the provisions of Section 2.9(a) or (b) of the Participation Agreement shall apply to the Equity Investment, a rate per annum equal to the Alternate Base Rate plus the Applicable Margin provided, however, the Yield Rate under the foregoing clause (i) or (ii) shall be increased by one percent (1.00%) following a BTMU Downgrade Event (as defined in each Pledge Agreement) and the election by the Lessee to have the Collateral thereunder transferred to an Eligible Deposit Taker other than BTMU, such increase to be payable from the date such Collateral is so transferred to and including such date, if any, that such Collateral is transferred to BTMU pursuant to the terms of such Pledge Agreement.

 

34


SCHEDULE I

Equity Investment

 

Institution

   Commitment Amount  
     (which is comprised of the Lease
Commitments and Construction
Commitments set forth below)
 

BTMU Capital Leasing & Finance, Inc.

   $ 220,000,000   

AGGREGATE EQUITY COMMITMENTS:

   $ 220,000,000   

 

Institution

   Site    Construction Commitment
Amount
 

BTMU Capital Leasing & Finance, Inc.

   Fremont 3E    $ 87,451,279.87   

 

Institution

   Site    Lease Commitment Amount  

BTMU Capital Leasing & Finance, Inc.

   Fremont 1    $ 22,630,869.82   

BTMU Capital Leasing & Finance, Inc.

   Fremont 3    $ 37,007,266.27   

BTMU Capital Leasing & Finance, Inc.

   Fremont 4    $ 18,708,344.23   

BTMU Capital Leasing & Finance, Inc.

   Port 1    $ 34,974,967.40   

BTMU Capital Leasing & Finance, Inc.

   Port 101    $ 19,227,272.41   


SCHEDULE II

Addresses For Notice; Wire Instructions

LESSEE:

 

Lam Research Corporation
4650 Cushing Parkway
Fremont, California 94538
Attention:    Odette Go
Fax Number:   

_______________________________

Wire Transfer Instructions:

 

Account Name:   

_______________________________

Account Number:   

_______________________________

Bank Name:   

_______________________________

Bank Address:   

_______________________________

Bank Routing (Swift):   

_______________________________

Bank Routing (ABA):   

_______________________________

Bank Contact:   

_______________________________


LESSOR:

 

BTMU Capital Leasing & Finance, Inc.
111 Huntington Avenue
Boston, Massachusetts 02199
Attention:    Portfolio Servicing
Telephone:   

_______________________________

Email:   

_______________________________

Wiring Instructions:

 

Bank:   

_______________________________

ABA#:   

_______________________________

Swift Code:   

_______________________________

Account Name:   

_______________________________

Account #:   

_______________________________

Reference:   

_______________________________


SCHEDULE III

[Intentionally Omitted]


SCHEDULE IV

Description of Each Site and Improvements

Site Fremont 1

Real Property in the City of Fremont, County of Alameda, State of California and described as follows:

PARCEL ONE:

PARCEL 1, PARCEL MAP 5001, FILED MARCH 18, 1987, IN BOOK 168 OF MAPS, AT PAGES 24 THROUGH 26, ALAMEDA COUNTY RECORDS.

PARCEL TWO:

AN EASEMENT FOR PRIVATE ACCESS FOR THE BENEFIT OF PARCEL ONE, ABOVE, OVER THAT PORTION OF PARCEL 2, PARCEL MAP 5001 DESIGNATED “J.A.E.” ON SAID MAP.

Site Fremont 3

Real Property in the City of Fremont, County of Alameda, State of California and described as follows:

BEING ALL OF LOT 3 AND A PORTION OF LOT 4, AS SHOWN ON THE PARCEL MAP 5001 FILED IN BOOK 168 OF MAPS, AT PAGES 24 THROUGH 26, ALAMEDA COUNTY RECORDS, DESCRIBED AS FOLLOWS:

BEGINNING ON THE SOUTHERLY LINE OF CUSHING PARKWAY AT THE MOST WESTERLY CORNER OF SAID LOT 3;

THENCE FROM SAID POINT OF BEGINNING, ALONG SAID SOUTHERLY LINE OF CUSHING PARKWAY, NORTH 82° 48’ 27” EAST, 541.20 FEET TO THE BEGINNING OF A CURVE TO THE LEFT;

THENCE CONTINUING ALONG SAID SOUTHERLY LINE OF CUSHING PARKWAY, ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 1° 25’ 35”, HAVING A RADIUS OF 2044.00 FEET AND AN ARC DISTANCE OF 50.89 FEET;

THENCE LEAVING SAID SOUTHERLY LINE OF CUSHING PARKWAY, THE FOLLOWING THREE (3) COURSES:

SOUTH 7° 11’ 33” EAST, 245.00 FEET;

NORTH 82° 48’ 27” EAST, 31.00 FEET; AND


SOUTH 7° 11’ 33” EAST, 353.79 FEET TO THE SOUTHERLY LINE OF SAID LOT 4;

THENCE ALONG THE SOUTHERLY LINE OF SAID LOT 4 AND LOT 3, SOUTH 85° 58’ 33” WEST, 624.04 FEET TO THE WESTERLY LINE OF SAID LOT 3;

THENCE ALONG SAID WESTERLY LINE, NORTH 7° 11’ 33” WEST, 563.66 FEET TO THE POINT OF BEGINNING.

Site Fremont 3E

Real Property in the City of Fremont, County of Alameda, State of California and described as follows:

PARCEL ONE:

PARCEL 2, PARCEL MAP 5001, FILED MARCH 18, 1987, IN BOOK 168 OF MAPS, AT PAGES 24 THROUGH 26, ALAMEDA COUNTY RECORDS.

EXCEPTING THEREFROM, ALL OIL, GAS AND OTHER HYDROCARBONS AND MINERALS NOW OR AT ANY TIME HEREAFTER SITUATE THEREIN AND THERE UNDER, AND ALSO THE RIGHT TO DRILL FOR, PRODUCE AND USE WATER FROM THE SAID REAL PROPERTY IN CONNECTION WITH DRILLING OR MINING OPERATIONS THEREON, AS RESERVED IN THE DEED FROM H. HERBST, M. HERBST AND H.D. HERBST TO C.J. SCHOUWEILER RECORDED APRIL 21, 1950 AS SERIES NO. AE-34804 IN BOOK 6085, PAGE 589 OF OFFICIAL RECORDS.

PARCEL TWO:

AN EASEMENT FOR PRIVATE ACCESS FOR THE BENEFIT OF PARCEL TWO, ABOVE, OVER THAT PORTION OF PARCEL 1, PARCEL MAP 5001 DESIGNATED “J.A.E.” ON SAID MAP.

Site Fremont 4

Real Property in the City of Fremont, County of Alameda, State of California and described as follows:

BEING A PORTION OF LOT 4, AS SHOWN ON THE PARCEL MAP 5001 FILED IN BOOK 168 OF MAPS, AT PAGES 24 THROUGH 26, ALAMEDA COUNTY RECORDS, DESCRIBED AS FOLLOWS:

BEGINNING ON THE SOUTHERLY LINE OF CUSHING PARKWAY AT THE MOST NORTHEASTERLY CORNER OF SAID LOT 4;


THENCE FROM SAID POINT OF BEGINNING, ALONG THE EASTERLY AND SOUTHERLY LINE OF SAID LOT 4, THE FOLLOWING TWO COURSES:

SOUTH 0° 35’ 19 EAST, 646.04 FEET; AND

SOUTH 85° 58’ 33 WEST, 354.60 FEET;

THENCE LEAVING THE SOUTHERLY LINE OF SAID LOT 4, THE FOLLOWING THREE (3) COURSES:

NORTH 7°11’ 33 WEST, 353.79 FEET;

NORTH 82° 48’ 27 WEST, 31.00 FEET; AND

NORTH 7° 11’ 33 WEST, 245.00 FEET TO THE BEGINNING OF A NON-TANGENT CURVE ON THE SOUTHERLY LINE OF CUSHING PARKWAY, FROM WHICH POINT A RADIAL LINE BEARS NORTH 8° 37’ 08 WEST;

THENCE EASTERLY ALONG SAID SOUTHERLY LINE OF CUSHING PARKWAY AND SAID CURVE, THROUGH A CENTRAL ANGLE OF 7° 21’ 45, HAVING A RADIUS OF 2044.00 FEET AND AN ARC DISTANCE OF 262.65 FEET;

THENCE CONTINUING ALONG SAID SOUTHERLY LINE OF CUSHING PARKWAY, NORTH 82° 48’ 27 EAST, 197.93 FEET TO THE POINT OF BEGINNING.

Site Port 1

Real property in the City of Livermore, County of Alameda, State of California, described as follows:

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.

Site Port 101

Real property in the City of Livermore, County of Alameda, State of California, described as follows:

ALL OF PARCEL 7 AS SAID PARCEL IS SHOWN AND SO DESIGNATED ON THE PARCEL MAP 7341 FILED FOR RECORD IN THE OFFICE OF THE COUNTY RECORDER OF ALAMEDA COUNTY IN BOOK 268 OF PARCEL MAPS AT PAGE 85, TOGETHER WITH A PORTION OF PARCEL 14 AS SAID PARCEL IS SHOWN AND SO DESIGNATED ON THE MAP OF TRACT 7610 FILED FOR RECORD IN THE OFFICE OF THE COUNTY RECORDER OF ALAMEDA COUNTY IN BOOK 293 OF MAPS AT PAGE 14, MORE PARTICULARLY DESCRIBED AS FOLLOWS:


BEGINNING AT THE MOST SOUTHERLY CORNER COMMON TO SAID PARCEL 7 AND PARCEL 14;

THENCE ALONG THE BOUNDARY LINE OF SAID PARCEL 7 THE FOLLOWING TEN (10) COURSES

1. WESTERLY ALONG A NON-TANGENT 1278.00 FOOT RADIUS CURVE TO THE RIGHT FROM WHICH THE CENTER OF SAID CURVE BEARS NORTH 05° 41’ 02” EAST, THROUGH A CENTRAL ANGLE OF 3° 38’ 58” AN ARC DISTANCE OF 81.402 FEET;

2. ALONG A REVERSE 1022.00 FOOT RADIUS CURVE TO THE LEFT FROM WHICH THE CENTER OF SAID CURVE BEARS SOUTH 09° 20’ 00” WEST, THROUGH A CENTRAL ANGLE OF 9° 20’ 00” AN ARC DISTANCE OF 166.481 FEET;

3. WEST, 284.906 FEET;

4. NORTH, 666.259 FEET;

5. EASTERLY ALONG A NON-TANGENT 1452.00 FOOT RADIUS CURVE TO THE LEFT FROM WHICH THE CENTER OF SAID CURVE BEARS NORTH 01° 01’ 32” EAST, THROUGH A CENTRAL ANGLE OF 15° 46’ 40” AN ARC DISTANCE OF 399.843 FEET;

6. ALONG A REVERSE 29.00 FOOT RADIUS CURVE TO THE RIGHT FROM WHICH THE CENTER OF SAID CURVE BEARS SOUTH 14° 45’ 08” EAST, THROUGH A CENTRAL ANGLE OF 36° 52’ 16” AN ARC DISTANCE OF 18.662 FEET;

7. ALONG A REVERSE 21.00 FOOT RADIUS CURVE TO THE LEFT FROM WHICH THE CENTER OF SAID CURVE BEARS NORTH 22° 07’ 08” EAST, THROUGH A CENTRAL ANGLE OF 36° 52’ 16” AN ARC DISTANCE OF 13.514 FEET;

8. NORTH 75° 14’ 52” EAST, 30.267 FEET;

9. SOUTH 14° 45’ 08” EAST, 77.744 FEET; AND

10. SOUTH, 2.171 FEET,

THENCE LEAVING SAID BOUNDARY LINE OF PARCEL 7, EAST, 26.510 FEET;

THENCE SOUTH, 22.517 FEET;

THENCE EAST, 17.000 FEET;

THENCE SOUTH, 130.001 FEET;

THENCE WEST 27.000 FEET;


THENCE SOUTH, 222.595 FEET;

THENCE EAST, 44.018 FEET;

THENCE SOUTH, 250.002 FEET;

THENCE WEST, 5.526 FEET TO A POINT ON THE EASTERLY LINE OF SAID PARCEL 7;

THENCE ALONG SAID EASTERLY LINE SOUTH, 41.262 FEET TO THE POINT OF BEGINNING.


EXHIBIT A

TO PARTICIPATION AGREEMENT

Form of Advance Request

             [    ], 201  

 

To:    BTMU Capital Leasing & Finance, Inc., in its capacity as Lessor (“ Lessor ”) under the Participation Agreement [to be executed on or about December [    ], 2013 1 /dated as of December 31, 2013] (as may be amended, the “ Participation Agreement ”), among LAM Research Corporation, as Lessee (“ Lessee ”) and Lessor
From:    LAM Research Corporation in its capacity as [Lessee 2 /Constructor]
Re:    Advance for $ [            ]

1. All capitalized terms used but not defined herein shall have the meanings as set forth in the [December [    ], 2013, draft of] 3 the Participation Agreement.

2. The proposed Advance Date is              [    ], 201   4 (the “ Advance Date ”).

3. The [Lessee/Constructor] hereby requests that the Advance be made in an aggregate amount of $ [            ].

4. $[            ] of the Advance is to fund the acquisition of the Sites and the Existing Improvements thereon and related Personal Property from the Existing Lessor other than Carrying Costs and Transaction Costs. Annex A to this Advance Request lists a breakdown of such amount by Site. 5

5. $[            ] of the Advance is to fund Construction Costs other than Carrying Costs and Transaction Costs.

6. $[            ] of the Advance is to fund Carrying Costs other than Capitalized Yield.

7. $[            ] of the Advance is to fund Capitalized Yield.

8. $[            ] of the Advance is to fund Transaction Costs other than Non-Utilization Fees.

 

1   Applicable only to initial Advance.
2   Applicable only to initial Advance.
3   Applicable only to initial Advance.
4   The Closing Date and, thereafter, the Monthly Date.
5   Applicable only to initial Advance.

 

A-1


9. $[            ] of the Advance is to fund Non-Utilization Fees.

10. The initial Interim Accrual Period for the Advance commences on the Advance Date and shall end on January [    ], 2014 6 . [The initial Payment Period for the Advance commences on the Advance Date and shall end on [            ], 2014.] 7

11. The undersigned requests that disbursements be sent by wire transfer in accordance with the wire instructions set forth in [the Funding Memo to be delivered in connection with the initial Advance 8 / Schedule II of the Participation Agreement].

12. [The Lessee agrees that it shall pay to the Lessor such amounts as may be necessary to reimburse the Lessor for any loss or expense incurred (including any loss or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by the Lessor to make, continue or maintain any portion of its investment in any Equity Investment on an Interim LIBOR Rate or a LIBOR Rate basis) as a result of the Advance not being made on the Advance Date due to the Lessee cancelling or rescinding this Advance Request, or not satisfying the conditions precedent to the Advance on the Advance Date such that the Lessor is not able, in light of internal funding procedures or otherwise, to deliver its portion of the Advance on the Advance Date. The Lessor shall promptly notify the Lessee in writing of the amount of any claim under this paragraph, the reason or reasons therefor and the additional amount required fully to compensate the Lessor for such loss or expense. Such written notice (which shall include calculations in reasonable detail) shall, in the absence of manifest error, be conclusive and binding upon the Lessee. ]

13. [The notice provisions set forth in Section 8.3 of the December [    ], 2013, draft of the Participation Agreement are hereby incorporated by reference as if fully set forth herein. Any notices delivered hereunder in accordance with such Section shall be deemed validly given to such other Person.]

14. [In addition, the provisions set forth in Sections 8.8, 8.10, 8.13 and 8.17 of the December [    ], 2013, draft of the Participation Agreement shall be incorporated herein by reference.]

15. [The indemnity set forth herein shall survive the Advance Date and the execution and delivery hereof.] 9

16. Each addressee hereof shall be entitled to rely on this Advance Request and the undersigned agrees that such addressees shall have third-party beneficiary rights, all as if such addressees were signatories hereto.

 

6   The Monthly Date.
7   Applicable only to initial Advance.
8   Applicable only to initial Advance.
9   Paragraphs 12 - 15 applicable only to initial Advance.

 

A-2


[Signature page follows]

 

A-3


IN WITNESS WHEREOF, the undersigned has caused this Advance Request to be duly executed and delivered by its proper and duly authorized officer as of the day and year first above written.

 

LAM RESEARCH CORPORATION
By:  

 

Name:  
Title:  

 

Sch. 2-4


[ANNEX A TO EXHIBIT A

TO PARTICIPATION AGREEMENT] 10

Annex A to Advance Request

Aggregate portion of Advance to fund the acquisition of the Sites and the Existing Improvements thereon and related Personal Property from the Existing Lessor other than Carrying Costs and Transaction Costs is $[            ].

 

Site    Per-Site Amount  

Fremont 1

   $ [            

Fremont 3

   $ [            

Fremont 3E

   $ [            

Fremont 4

   $ [            

Port 1

   $ [            

Port 101

   $ [            

 

10   Applicable only to initial Advance.

 

Sch. 2-5

Exhibit 10.15

 

 

AMENDED AND RESTATED LEASE AGREEMENT

(Port 1)

D ATED AS OF D ECEMBER  31, 2013

B ETWEEN

BTMU CAPITAL LEASING & FINANCE, INC.,

AS L ESSOR ,

A ND

LAM RESEARCH CORPORATION,

AS L ESSEE

 

 


TABLE OF CONTENTS

 

            Page  

ARTICLE I DEFINITIONS

     1   

ARTICLE II LEASE OF LEASED PROPERTY; LEASE TERM

     2   

SECTION 2.1.

    

Acceptance and Lease

     2   

SECTION 2.2.

    

Lease Term

     2   

ARTICLE III TAXES

     2   

SECTION 3.1.

    

Impositions

     2   

SECTION 3.2.

    

Contests

     3   

ARTICLE IV RENT

     3   

SECTION 4.1.

    

Rental Payments

     3   

SECTION 4.2.

    

Supplemental Rent

     3   

SECTION 4.3.

    

Method and Amount of Payment

     3   

SECTION 4.4.

    

Late Payment

     3   

ARTICLE V NET LEASE

     4   

ARTICLE VI UTILITY CHARGES

     5   

ARTICLE VII CONDITION AND USE OF LEASED PROPERTY

     6   

ARTICLE VIII LIENS; EASEMENTS

     6   

SECTION 8.1.

    

Liens

     6   

SECTION 8.2.

    

Easements

     7   

ARTICLE IX MAINTENANCE AND REPAIR; ALTERATIONS AND ADDITIONS

     8   

SECTION 9.1.

    

Maintenance and Repair; Compliance With Law

     8   

SECTION 9.2.

    

Improvements and Alterations

     8   

SECTION 9.3.

    

Alterations Subject to Lease

     9   

SECTION 9.4.

    

Maintenance and Repair Reports

     10   

SECTION 9.5.

    

Permitted Contests

     10   

ARTICLE X USE

     11   

SECTION 10.1.

    

Use

     11   

SECTION 10.2.

    

Trade Compliance

     11   

ARTICLE XI INSURANCE

     11   

SECTION 11.1.

    

Required Coverages

     11   

SECTION 11.2.

    

Delivery of Insurance Certificates

     13   

 

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TABLE OF CONTENTS

(continued)

 

            Page  

ARTICLE XII ASSIGNMENT AND SUBLEASING

     14   

ARTICLE XIII LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE

     15   

SECTION 13.1.

    

Event of Loss

     15   

SECTION 13.2.

    

Condemnation

     16   

SECTION 13.3.

    

Casualty

     16   

SECTION 13.4.

    

Proceeds

     17   

SECTION 13.5.

    

Negotiations

     17   

SECTION 13.6.

    

No Rent Abatement

     17   

ARTICLE XIV CERTAIN DUTIES AND RESPONSIBILITIES

     17   

ARTICLE XV INSPECTION

     18   

ARTICLE XVI ENVIRONMENTAL MATTERS

     18   

SECTION 16.1.

    

Environmental Matters

     18   

SECTION 16.2.

    

Notice of Environmental Matters

     19   

ARTICLE XVII EVENTS OF DEFAULT

     19   

ARTICLE XVIII ENFORCEMENT

     22   

SECTION 18.1.

    

Remedies

     22   

SECTION 18.2.

    

Proceeds of Sale; Deficiency

     26   

SECTION 18.3.

    

Waiver of Certain Rights

     26   

SECTION 18.4.

    

Remedies Cumulative; No Waiver; Consents

     27   

ARTICLE XIX RIGHT TO CURE

     27   

ARTICLE XX EARLY TERMINATION OPTION; OBLIGATION TO PURCHASE; MID-TERM REMARKETING OPTION

     27   

SECTION 20.1.

    

Early Termination Option

     27   

SECTION 20.2.

    

Required Purchase

     28   

SECTION 20.3.

    

Mid-term Remarketing Option

     28   

ARTICLE XXI END OF TERM OPTIONS

     28   

SECTION 21.1.

    

End of Term Options

     28   

SECTION 21.2.

    

Election of Options

     29   

ARTICLE XXII RETURN OPTION

     29   

SECTION 22.1.

    

Return Option Procedures

     29   

 

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TABLE OF CONTENTS

(continued)

 

            Page  

SECTION 22.2.

    

Sale

     31   

SECTION 22.3.

    

Application of Sale Proceeds and Recourse Payments

     32   

SECTION 22.4.

    

Failure to Sell Leased Property

     33   

SECTION 22.5.

    

Surrender and Return

     36   

ARTICLE XXIII MISCELLANEOUS

     37   

SECTION 23.1.

    

Binding Effect; Successors and Assigns; Survival

     37   

SECTION 23.2.

    

Severability

     37   

SECTION 23.3.

    

Notices

     37   

SECTION 23.4.

    

Amendment; Complete Agreements

     37   

SECTION 23.5.

    

Headings

     38   

SECTION 23.6.

    

Original Executed Counterpart

     38   

SECTION 23.7.

    

Governing Law

     38   

SECTION 23.8.

    

No Joint Venture

     38   

SECTION 23.9.

    

No Accord and Satisfaction

     38   

SECTION 23.10.

    

Survival

     38   

SECTION 23.11.

    

Transfer of Leased Property

     38   

SECTION 23.12.

    

Enforcement of Certain Warranties

     39   

SECTION 23.13.

    

Security Interest in Funds

     39   

SECTION 23.14.

    

Submission to Jurisdiction

     40   

SECTION 23.15.

    

Jury Trial

     40   

SECTION 23.16.

    

Payments

     41   

 

EXHIBITS

    
EXHIBIT A    Description of Site

 

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AMENDED AND RESTATED LEASE AGREEMENT

(Port 1)

THIS AMENDED AND RESTATED LEASE AGREEMENT (PORT 1), dated as of December 31, 2013 (as amended, supplemented, or otherwise modified from time to time (this “ Lease ”), is between BTMU CAPITAL LEASING & FINANCE, INC., a Delaware corporation, as Lessor (the “ Lessor ”) and whose principal offices are located at 111 Huntington Avenue, Boston, Massachusetts 02199, and LAM RESEARCH CORPORATION, a Delaware corporation, as Lessee (the “ Lessee ) and whose principal offices are located at 4300 Cushing Parkway, Fremont, California 95438.

WITNESSETH:

Lessee and Lessor are entering into this Lease and the Operative Documents.

A. Subject to the terms and conditions set forth in the Operative Documents, on the Closing Date, Lessor has agreed to acquire the land described on Exhibit A attached hereto (the “ Site ”) and the existing improvements thereon (the “ Existing Improvements ”) and Personal Property used thereon (collectively, the “ Leased Property ”) which Leased Property is subject to that certain Lease Agreement (Livermore/Parcel #6), dated as of December 18, 2007 (“ Existing Lease Port 1 ”), between BNP Paribas Leasing Corporation, a Delaware corporation (the “ Existing Lessor ”), and the Lessee.

B. Existing Lessor has assigned all of its right, title and interest in and to the Existing Lease Port 1 and the Leased Property to Lessor.

C. The Lessee and the Lessor desire to continue to lease the Leased Property and to amend and restate the Existing Lease in accordance with the terms and conditions set forth below.

NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, hereby agree that the Existing Lease is hereby amended and restated in its entirety as follows:

ARTICLE I

DEFINITIONS

For all purposes hereof, the capitalized terms used herein and not otherwise defined shall have the meanings assigned thereto in Appendix I to that certain Participation Agreement dated as of even date herewith, between the Lessee and the Lessor (as the same may be amended, modified, restated or supplemented from time to time, the “ Participation Agreement ”).


ARTICLE II

LEASE OF LEASED PROPERTY; LEASE TERM

SECTION 2.1. Acceptance and Lease.

The Lessor, subject to the satisfaction or waiver of the conditions set forth in Section 3.1 of the Participation Agreement, hereby agrees to lease all of the Leased Property (the location of which is more particularly described on Exhibit A hereto) to the Lessee hereunder and the Lessee hereby agrees, expressly for the direct benefit of the Lessor, to lease from the Lessor for the Lease Term, all of the Leased Property. Without limiting the generality of the foregoing, Lessee acknowledges that the leasehold estate conveyed by this Lease and Lessee’s rights hereunder are expressly made subject and subordinate to the terms and conditions of the matters listed in Schedule B to the Title Policy and all other Permitted Liens, and any other Liens not constituting Lessor Liens.

Subject to Articles XII and XVIII hereof, the Lessor will not lease nor otherwise make the Leased Property, in whole or in part, available to any Person other than the Lessee and its permitted successors, assigns and sublessees during the Lease Term, and (without derogating in any way from the Lessor’s rights under Article XV hereof) during the Lease Term the Lessee shall have unimpeded physical control of the Leased Property notwithstanding the Lessor’s rights to inspect the Leased Property under Article XV.

SECTION 2.2. Lease Term.

Unless earlier terminated, the term of this Lease for the Leased Property shall consist of a base lease term (the “ Base Term ” or the “ Lease Term ”) which shall commence on and including the Closing Date (such day, the “ Base Term Commencement Date ”) and ending on December 31, 2020.

ARTICLE III

TAXES

SECTION 3.1. Impositions.

During the Lease Term, Lessee agrees to pay prior to delinquency without penalty or interest all Taxes imposed upon or levied against the Leased Property or any part thereof or interest therein consistent with Section 7.2 of the Participation Agreement. The Site consists of one or more separate tax lots for real property tax assessment purposes. Any Tax relating to a fiscal period of any taxing Authority falling partially within and partially outside the Lease Term shall be apportioned and adjusted between Lessor and Lessee. Lessee covenants to furnish Lessor, upon Lessor’s request, within forty-five (45) days after the last date when any Tax must be paid by Lessee, official receipts of the appropriate taxing Authority or other proof reasonably satisfactory to Lessor evidencing the payment thereof.

 

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SECTION 3.2. Contests.

Lessee shall have the right to contest any Tax in accordance with Section 7.2(b) of the Participation Agreement.

ARTICLE IV

RENT

SECTION 4.1. Rental Payments.

Commencing on the first Payment Date following the Base Term Commencement Date, the Lessee shall pay to the Lessor Basic Rent, without offset or deduction, (i) on each Payment Date, (ii) on the Return Date, and (iii) on any date on which this Lease terminates or upon demand following an Event of Default pursuant to Article XVII.

SECTION 4.2. Supplemental Rent.

The Lessee shall pay to the Lessor, or to whomever shall be entitled thereto as expressly provided herein or in any other Operative Document (and the Lessor hereby directs the Lessee, on behalf of the Lessor, to so pay any such other Person), any and all Supplemental Rent promptly as the same shall become due and payable and, in the event of any failure on the part of the Lessee to pay any Supplemental Rent, the Lessor shall have all rights, powers and remedies provided for herein or by law or in equity or otherwise in the case of nonpayment of Basic Rent. Lessee hereby reaffirms that its obligation to pay Supplemental Rent shall include the payment of any and all Additional Costs. The expiration or other termination of the Lessee’s obligations to pay Basic Rent hereunder shall not limit or modify the obligations of the Lessee with respect to Supplemental Rent.

SECTION 4.3. Method and Amount of Payment.

Basic Rent and Supplemental Rent shall be paid by wire transfer by the Lessee to the Lessor (or, in the case of Supplemental Rent, to such Person as may be entitled thereto) at such place as the Lessor (or such other Person) shall specify in writing to the Lessee pursuant to Schedule II to the Participation Agreement. Each payment of Rent shall be made by the Lessee prior to 11:00 A.M. New York time (and payments made after such time shall be deemed to have been made on the next day) at the place of payment in funds consisting of Dollars which shall be immediately available on the scheduled date when such payment shall be due unless the scheduled date shall not be a Business Day, in which case such payment shall be due and made on the next succeeding Business Day. The provisions of the foregoing sentence of this Section 4.3 shall be applicable only to Basic Rent and to Supplemental Rent payable to, or on behalf of or for the account of, the Lessor and any other Indemnitee.

SECTION 4.4. Late Payment.

If any Basic Rent shall not be paid within three (3) Business Days of the due date applicable thereto, the Lessee shall pay to the Lessor, or if any Supplemental Rent payable to or on behalf or for the account of the Lessor or other Indemnitee is not paid when due, the Lessee

 

3


shall pay to whomever shall be entitled thereto, in each case as Supplemental Rent, interest at the Overdue Rate (to the maximum extent permitted by law) on such overdue amount from and including the due date thereof (without regard to any applicable grace period) to but excluding the Business Day of payment thereof.

ARTICLE V

NET LEASE

This Lease shall constitute a net lease and, notwithstanding any other provision of this Lease, it is intended that Basic Rent, Supplemental Rent, the Lease Balance and all other amounts due and payable under the Operative Documents shall be paid without counterclaim, setoff, deduction or defense of any kind and without abatement, suspension, deferment, diminution or reduction of any kind, and the Lessee’s obligation to pay all such amounts throughout the Lease Term is absolute and unconditional. The obligations and liabilities of the Lessee hereunder shall, to the fullest extent permitted by Applicable Laws, in no way be released, discharged or otherwise affected for any reason (other than the indefeasible payment or performance in full of such liability or obligation) including: (a) any defect in the condition, merchantability, design, construction, quality or fitness for use of the Leased Property or any portion thereof, or any failure of the Leased Property or any portion thereof to comply with all Applicable Laws including any inability to occupy or use the Leased Property or any portion thereof by reason of such non-compliance; (b) any damage to, abandonment, loss, contamination of or Release from or destruction of or any requisition or taking of the Leased Property or any portion thereof including eviction; (c) any restriction, prevention or curtailment of or interference with any use of the Leased Property or any portion thereof, including eviction; (d) any defect in title to or rights to the Leased Property or any portion thereof or any Lien on such title or rights or on the Leased Property or any portion thereof; (e) any change, waiver, extension, indulgence or other action or omission or breach in respect of any obligation or liability of or by the Lessor; (f) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceedings relating to the Lessee, the Lessor or any other Person, or any action taken with respect to this Lease by any trustee or receiver of the Lessee, the Lessor or any other Person, or by any court, in any such proceeding; (g) any claim that the Lessee has or might have against any Person, including the Lessor or any Indemnitee arising from any of the circumstances set forth in this sentence (but will not constitute a waiver of such claim); (h) any failure on the part of the Lessor to perform or comply with any of the terms of this Lease, any other Operative Document or of any other agreement whether or not related to the Overall Transaction; (i) any invalidity or unenforceability or disaffirmance against or by the Lessee of this Lease or any provision hereof or any of the other Operative Documents or any provision of any thereof; (j) the impossibility of performance by the Lessee, the Lessor or both; (k) any action by any court, administrative agency or other Authority; (l) the construction of any Alterations; (m) the failure of the Lessee to achieve any accounting or tax benefits or the characterization of the transaction intended by Section 2.12 of the Participation Agreement; or (n) any other occurrence whatsoever, whether similar or dissimilar to the foregoing, whether or not the Lessee shall have notice or knowledge of any of the foregoing. Except as specifically set forth in Article XIII or Section 20.1 of this Lease, this Lease shall be noncancellable by the Lessee for any reason whatsoever and the Lessee, to the fullest extent permitted by Applicable Laws, waives all rights now or hereafter conferred by statute or otherwise to quit, terminate or surrender this

 

4


Lease, or to any diminution, abatement or reduction of Rent payable by the Lessee hereunder. If for any reason whatsoever this Lease shall be terminated or amended in whole or in part by operation of law or otherwise, except as expressly provided in Article XIII or Section 20.1 of this Lease, the Lessee shall, unless prohibited by Applicable Laws, pay to the Lessor (or, in the case of Supplemental Rent, to whomever shall be entitled thereto) a compensation in an amount equal to each Rent payment (including the Lease Balance and any other amount due and payable under any Operative Documents) at the time and in the manner that such payment would have become due and payable under the terms of this Lease if it had not been terminated or amended in whole or in part. Each payment of Rent including any payment of the Lease Balance and Break Even Price made by the Lessee hereunder shall be final and, absent manifest error in the computation of the amount thereof, the Lessee shall not seek or have any right to recover all or any part of such payment from the Lessor or any party to any agreements related thereto for any reason whatsoever. Lessee assumes the sole responsibility for the condition, use, operation, maintenance, and management of the Leased Property and the Lessor shall have no responsibility in respect thereof and shall have no liability for damage to the Leased Property or the property relating thereto of the Lessee or any subtenant of the Lessee on any account or for any reason whatsoever. Without affecting the Lessee’s obligation to pay Basic Rent, Supplemental Rent, the Lease Balance and all other amounts due and payable under the Operative Documents or to perform its obligations under the Operative Documents, the Lessee may, notwithstanding any other provision of the Operative Documents (other than Section 8.11 of the Participation Agreement), seek damages of any kind or any other remedy at law or equity against the Lessor for such willful misconduct or gross negligence or negligence in the handling of funds or for a breach by the Lessor of its obligations under this Lease or the other Operative Documents.

ARTICLE VI

UTILITY CHARGES

During the Lease Term the Lessee shall pay or cause to be paid all development and improvement charges and all charges for electricity, power, gas, oil, water, telephone, sanitary sewer service and all other rents, utilities or public dues used in or on the Improvements or the Site during the Lease Term. Lessee shall be entitled to receive any credit or refund with respect to any utility charge or public dues paid by the Lessee and the amount of any credit or refund received by the Lessor on account of any utility charges paid by the Lessee, net of the costs and expenses reasonably incurred by the Lessor in obtaining such credit or refund, which amount shall be promptly paid over to the Lessee. All charges for utilities imposed or public dues with respect to the Improvements and the Site for a billing period during which this Lease expires or terminates (except pursuant to Article XX or Section 21.1(a), in which case the Lessee shall be solely responsible for all such charges) shall be adjusted and prorated on a daily basis between the Lessee and any purchaser of the Leased Property, and each party shall pay or reimburse the other for each party’s pro rata share thereof; provided, that in no event shall the Lessor have any liability therefor.

 

5


ARTICLE VII

CONDITION AND USE OF LEASED PROPERTY

LESSEE ACKNOWLEDGES AND AGREES THAT IT IS LEASING THE LEASED PROPERTY “AS IS” IN ITS PRESENT CONDITION, SUBJECT TO (A) ANY RIGHTS OF ANY PARTIES IN POSSESSION THEREOF OR OF THE SITE, (B) THE STATE OF THE TITLE THERETO OR TO THE SITE EXISTING AT THE TIME THE LESSOR ACQUIRED ITS INTEREST IN THE LEASED PROPERTY, (C) ANY STATE OF FACTS WHICH AN ACCURATE SURVEY OR PHYSICAL INSPECTION MIGHT SHOW (INCLUDING ANY SURVEY DELIVERED ON OR PRIOR TO THE CLOSING DATE), (D) ALL APPLICABLE LAWS, AND (E) ANY VIOLATIONS OF APPLICABLE LAWS WHICH MAY EXIST AT THE COMMENCEMENT OF THE LEASE TERM. LESSEE HAS EXAMINED THE LEASED PROPERTY AND (INSOFAR AS THE LESSOR IS CONCERNED) HAS FOUND THE SAME TO BE SATISFACTORY. WITHOUT LIMITING THE SPECIFIC REPRESENTATIONS AND WARRANTIES IN ARTICLE IV OF THE PARTICIPATION AGREEMENT, THE LESSOR HAS NOT MADE NOR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, NOR SHALL BE DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO THE TITLE TO THE LEASED PROPERTY OR THE SITE OR TO THE VALUE, MERCHANTABILITY, HABITABILITY, CONDITION, OR FITNESS FOR USE OF THE LEASED PROPERTY OR THE SITE, OR ANY PART THEREOF, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASED PROPERTY OR THE SITE, OR ANY PART THEREOF, AND THE LESSOR SHALL NOT BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR THE FAILURE OF THE LEASED PROPERTY OR ANY PORTION THEREOF, TO COMPLY WITH ANY APPLICABLE LAWS, except that the Lessor hereby represents and warrants that as of the date of this Lease, the Leased Property is free of Lessor Liens. The Lessee, having been afforded full opportunity to inspect the Leased Property, is satisfied with the results of its inspections and is entering into this Lease solely on the basis of the results of its own inspections, and all risks incident to the matters discussed in the preceding sentence, as between the Lessor, on the one hand, and the Lessee, on the other, are to be borne by the Lessee. The provisions of this Article VII have been negotiated, and, except to the extent otherwise expressly stated, the foregoing provisions are intended to be a complete exclusion and negation of any representations or warranties by the Lessor, express or implied, with respect to the Leased Property (or any interest therein) that may arise pursuant to any law now or hereafter in effect or otherwise.

ARTICLE VIII

LIENS; EASEMENTS

SECTION 8.1. Liens.

During the Lease Term and subject to Lessee’s right to engage in Permitted Contests in accordance with Section 9.5, the Lessee will not directly or indirectly create, incur, assume or suffer to exist any Lien (other than Permitted Liens) on or with respect to any portion of the Leased Property or any portion thereof or the Lessor’s interest therein. Lessee, at its own expense, will promptly pay, satisfy and otherwise take such actions as may be necessary to keep

 

6


the Leased Property free and clear of, and duly to discharge, eliminate or bond in a manner reasonably satisfactory to the Lessor, any such Lien (other than Permitted Liens) if the same shall arise at any time.

SECTION 8.2. Easements.

Notwithstanding Section 8.1, at the request of Lessee, Lessor shall, from time to time during the Lease Term and upon reasonable advance written notice from Lessee and receipt of the materials specified below, consent to and join in any (i) grant of easements, licenses, rights of way and other rights in the nature of easements, including utility easements which in each case facilitate Lessee’s use, development and operation of the Leased Property, (ii) release or termination of easements, licenses, rights of way or other rights in the nature of easements which releases and terminations are for the benefit of the Site or the Improvements or any portion thereof, (iii) dedication or transfer of portions of the Site, not improved with a building, for road, highway or other public purposes, provided the same are for the benefit of the Site or Improvements, (iv) execution of agreements for ingress and egress and amendments to any covenants and restrictions affecting the Site or Improvements or any portion thereof, and (v) request to any Authority for platting or subdivision or replatting or resubdivision approval with respect to the Site or any portion thereof or any parcel of land of which the Site or any portion thereof forms a part or a request for any variance from zoning or other governmental requirements, provided that :

(a) any such action shall be at the sole cost and expense of Lessee and Lessee shall pay all reasonable out-of-pocket costs of the Lessor in connection therewith (including the reasonable fees of attorneys, architects, engineers, planners, appraisers and other professionals reasonably retained by the Lessor in connection with any such action);

(b) Lessee shall have delivered to the Lessor a certificate of a Responsible Officer of Lessee stating that:

(i) such action will not cause the Leased Property, the Site or the Improvements or any portion thereof to fail to comply in any material respect with the provisions of the Lease or any other Operative Documents, or in any material respect with Applicable Laws; and

(ii) such action will not materially reduce the Fair Market Value, utility or useful life of the Leased Property, the Site or the Improvements or Lessor’s interest therein;

(c) in the case of any release or conveyance, if the Lessor so reasonably requests, the Lessee will cause to be issued and delivered to the Lessor by the Title Insurance Company endorsements to the Title Policies (to the extent available) pursuant to which the Title Insurance Company agrees that its liability for the payment of any loss or damage under the terms and provisions of the Title Policies will not be affected by reason of the fact that a portion of the real property referred to in Schedule A of the Title Policies has been released or conveyed by Lessor; and

(d) there shall be no abatement of Rent as a result thereof.

 

7


ARTICLE IX

MAINTENANCE AND REPAIR; ALTERATIONS AND ADDITIONS

SECTION 9.1. Maintenance and Repair; Compliance With Law.

At all times during the Lease Term, the Lessee shall (a) maintain the Improvements and the Site in good operating condition and repair, subject to ordinary wear and tear, and in any event in a manner consistent with other similar facilities or buildings owned or leased by the Lessee and its Subsidiaries; (b) subject to Section 9.5, maintain the Improvements and the Site in accordance with all Applicable Laws (including all Environmental Laws) in all material respects, whether or not such maintenance requires structural modifications; (c) maintain the Improvements and the Site in such a way that the Improvements and the Site shall not constitute a danger to persons or things; (d) comply in all material respects with the Insurance Requirements which are in effect at any time with respect to the Leased Property or any part thereof; (e) use the Improvements and the Site only in accordance with Article X; (f) make all necessary or appropriate repairs, replacements and renewals of the Improvements and the Site or any part thereof which may be required to keep the Improvements and the Site in the condition required by the preceding clauses (a) through (e), whether interior or exterior, structural or nonstructural, ordinary or extraordinary, foreseen or unforeseen, and including repairs, replacements and renewals that would constitute capital expenditures under GAAP if incurred by an owner of property; and (g) procure, maintain and comply in all material respects with all licenses, permits, orders, approvals, consents and other authorizations required for the construction, use, maintenance and operation of the Improvements and the Site. The Lessee waives any right that it may now have or hereafter acquire to (x) require the Lessor to maintain, repair, replace, alter, remove or rebuild all or any part of the Improvements or the Site or (y) make repairs at the expense of the Lessor pursuant to any Applicable Laws or other agreements.

SECTION 9.2. Improvements and Alterations.

(a) The Lessee, at the Lessee’s own cost and expense, (i) shall make alterations, renovations, repairs, improvements and additions to the Leased Property or any part thereof and substitutions and replacements therefor (collectively, “ Alterations ”) which are (A) necessary to repair or maintain the Improvements or the Site in the condition required by Section 9.1 or (B) necessary or advisable to restore the Improvements and the Site to its condition existing prior to a Casualty or Condemnation to the extent required pursuant to Article XIII, and (ii) so long as no Material Default or Event of Default has occurred and is continuing, may undertake Alterations on the Leased Property so long as such Alterations comply in all material respects with Applicable Laws and are consistent and comply with Section 9.1 and subsection (b) of this Section 9.2.

(b) The making of any Alterations pursuant to subsection (a)(i) above of this Section 9.2 must be in compliance with the following requirements:

The Lessee shall not make any Alterations in violation of the terms of any restriction, easement, condition, covenant or other similar matter affecting title to or binding on the Improvements or the Site.

 

8


(i) No Alterations shall be undertaken until the Lessee shall have procured and paid for, so far as the same may be required from time to time, all permits and authorizations relating to such Alterations of all municipal and other Authorities having jurisdiction over the Improvements or the Site. Lessor, at the Lessee’s expense, shall join in the application for any such permit or authorization and execute and deliver any document in connection therewith, whenever such joinder is necessary or advisable; provided that, however, such joinder shall not constitute or be deemed to constitute, any assumption or responsibility or liability whatsoever.

(ii) The Alterations shall be completed in a good and workmanlike manner and in compliance in all material respects with all Applicable Laws then in effect and with the Insurance Requirements.

(iii) All Alterations shall, when completed, be of such a character as to not materially diminish (A) the utility of the Improvements as a corporate office complex including a corporate office building and any uses ancillary thereto, (B) the then current Fair Market Value as determined by reference to the Appraisal, or (C) the Fair Market Value as determined by reference to the Appraisal as of the scheduled expiration date of the Lease Term.

(iv) The Lessee shall have made adequate arrangements for payment of the cost of all Alterations when due so that the Improvements and the Site shall at all times be free of Liens for labor and materials supplied or claimed to have been supplied to the Improvements or the Site, other than Permitted Liens; provided, that the Lessee shall have the right to engage in Permitted Contests in accordance with Section 9.5.

(v) The Alterations must be located solely on the Site.

SECTION 9.3. Alterations Subject to Lease.

The following Alterations without further act shall be deemed to constitute a part of the Leased Property and be subject to this Lease:

(a) Alterations that are in replacement of or in substitution for a portion of the Improvements;

(b) Alterations that are required to be made pursuant to the terms of Section 9.1 or 9.2(a)(i) hereof; or

(c) Alterations that are Non-severable or immovable.

To the extent any Alterations are deemed to constitute part of the Leased Property pursuant to the preceding sentence, the Lessee hereby acknowledges and agrees that such Alterations will become upon installation property of the Lessor. The Lessee will, at the Lessor’s request, execute and deliver any documents reasonably necessary to evidence or cause the vesting of such interests in and to such Alterations to the Lessor.

 

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If such Alterations are not within any of the categories set forth in clauses (a) through (c) of this Section 9.3 and have not become property of the Lessor in accordance therewith, then such Alterations shall remain the sole property of the Lessee and such Alterations shall not be deemed to be Alterations which are part of the Leased Property. All such Alterations not constituting part of the Leased Property may, so long as no Event of Default is continuing, be removed at any time by the Lessee other than Alterations the removal of which would result in a violation of Applicable Laws. The Lessee shall at its expense prior to the Lease Expiration Date repair any damage to the Improvements or the Site caused by the removal of such Alterations. Lessor (or the purchaser of the Leased Property if the Lessee elects the Return Option or in connection with a sale pursuant to Section 18.1) may purchase from the Lessee any such Alterations (if not already owned by the Lessor) that the Lessee intends to remove from the Improvements or the Site prior to the Lease Expiration Date, which purchase shall be at the Fair Market Value of such Alterations as determined by the Appraiser at the time of such purchase.

SECTION 9.4. Maintenance and Repair Reports.

During the Lease Term, the Lessee shall keep maintenance and repair reports in sufficient detail, on the same basis as records are kept for similar properties owned or leased by the Lessee or its Subsidiaries, to indicate the nature and date of major work done. Such reports shall be kept on file by the Lessee at its offices during the Lease Term, and shall be made available at the Lessee’s office to the Lessor upon reasonable request.

SECTION 9.5. Permitted Contests.

If, to the extent and for so long as (a) a contest of the legality, validity or applicability to the Improvements or the Site or any interest therein of, or the operation, use or maintenance thereof by the Lessee of (i) any Applicable Laws, (ii) any term or condition of, or any revocation or amendment of, or other proceeding relating to, any Governmental Action, or (iii) any Lien or Tax shall be made in good faith, by appropriate proceedings initiated timely and diligently prosecuted, by the Lessee or (b) compliance with such Applicable Laws, Governmental Action, Lien or Tax shall have been excused or exempted by a valid nonconforming use permit, waiver, extension or forbearance, the Lessee shall not be required to comply with such Applicable Laws, Governmental Action, Lien or Tax but only if and so long as any such contest shall constitute a Permitted Contest.

Lessor will not be required to join in any Permitted Contest pursuant to this Section 9.5 unless a provision of any Applicable Laws requires, or, in the good faith opinion of the Lessee, it is helpful to the Lessee that such proceedings be brought by or in the name of the Lessor; and in that event, the Lessor will join in the proceedings or permit them or any part thereof to be brought in its name if and so long as (i) no Event of Default is continuing, (ii) the Lessee has not elected the Return Option, and (iii) the Lessee pays all related out-of-pocket expenses, and the Lessee shall be deemed to have acknowledged and agreed that the Lessor is indemnified therefor pursuant to Section 7.1 of the Participation Agreement.

 

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ARTICLE X

USE

SECTION 10.1. Use.

The Site on which the Improvements are located shall be used solely for the purposes of a corporate office complex including a corporate office building and any uses ancillary thereto. Lessee shall not use the Leased Property or any portion thereof for any purpose or in any manner that would diminish (A) the utility of the Improvements as a corporate office complex including a corporate office building and any uses ancillary thereto, (B) the then current Fair Market Value as determined by reference to the Appraisal, or (C) the Fair Market Value as determined by reference to the Appraisal as of the scheduled expiration date of the Lease Term. Lessee shall use the Leased Property in compliance in all material respects with (a) any Applicable Laws (including Environmental Laws), except to the extent permitted by Section 9.5, (b) any Insurance Requirements, and (c) all of the Operative Documents. Lessee shall pay, or cause to be paid, all charges and costs required in connection with the use of the Leased Property in accordance with this Lease and the Participation Agreement. Lessee shall not commit or permit any intentional waste of the Leased Property or any material part thereof.

SECTION 10.2. Trade Compliance.

Lessee shall comply with the Trading with the Enemy Act, as amended, and all of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended), federal embargo laws and regulations, and the USA PATRIOT Act in the conduct of all of its activities, including the following: (i) the use, assignment, or sublease of Site or the Improvements by Prohibited Persons; and (ii) the export of any products manufactured at the Improvements to any destination or Prohibited Person.

ARTICLE XI

INSURANCE

SECTION 11.1. Required Coverages.

During the Lease Term, the Lessee will provide or cause to be provided insurance with respect to the Improvements and the Site of a character usually obtained by the Lessee against loss or damage of the kinds and in the amounts customarily insured against by the Lessee with respect to similar properties, and carry such other insurance as is usually carried by the Lessee with respect to similar properties; provided, that in any event the Lessee will maintain:

(a) Comprehensive General Liability Insurance . Lessee will maintain a comprehensive general liability insurance policy on an occurrence basis, including contractual liability and pollution liability insurance for sudden and accidental contamination occurring on, in or about the Improvements or the Site with a combined single limit against claims for third-party bodily injury, including death and third-party property damage in an amount at least equal to $25,000,000 per occurrence and $25,000,000 in the aggregate, which may be a blanket policy. Such coverage may be subject to deductibles or self-insurance up to an amount that is customarily carried by the Lessee with respect to similar property. Such liability insurance shall

 

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name the Lessor as an additional insured and the Lessor shall continue to be named as an additional insured and such policy shall remain in effect until at least the third anniversary of the end of the Lease Term.

(b) Builder’s Risk Insurance . At any other time in connection with any construction of or Alteration to any Improvements, the Lessee shall arrange, on behalf of the Lessor and all contractors, to obtain and keep in force an all-risk builder’s risk insurance with respect to the Improvements and the construction of such Alterations or Improvements insuring the Lessor’s interest in the Improvements and the construction of such Alterations or Improvements including resulting damage from collapse, coverage for fire, hurricanes, flood and earthquakes and coverage against damage or loss caused by machinery accidents and operational and performance testing and start-up, with extended coverage, in an amount not less than the full replacement cost of the insured building (without deduction for depreciation). Such coverage shall provide (1) coverage for insuring the buildings, non-temporary structures, machinery, equipment (exclusive of manufacturing and laboratory equipment), facilities, fixtures, supplies and other property constituting part of the Leased Properties including but not limited to boiler and machinery insurance covering pressure vessels, air tanks, boilers, machinery, pressure piping, heating, ventilation and air conditioning equipment, and elevator and escalator equipment, (2) inland transit coverage from designated storage facilities, (3) off-site (within 1000 feet of the insured Improvements) coverage with sublimits sufficient to insure the full replacement value of any equipment, supplies and materials not stored at the Land, (4) removal of debris, (5) increased cost of construction, and (6) coverage for foundations and other property below the surface of the ground, but the interest of contractors, subcontractors and agents in insured property during construction at the insured location to the extent of Lessee’s legal liability for insured physical loss or damage to such property. Such coverage shall (x) not be subject to any self-insurance and shall be subject to a deductible of no more than $50,000 per occurrence except for (i) $100,000 per occurrence for water damage, (ii) $1,000,000 per occurrence for earthquake damage and (iii) $500,000 per occurrence for flood damage, and (y) be in such form and amounts and covering such risks as were approved by the Lessor on the Closing Date. Lessee shall promptly deliver all reports or information to the appropriate recipient which may be required under such policy or policies in order to ensure that the coverage provided with respect to the construction of such Alterations or Improvements is in an amount at least equal to the aggregate Advances funded under the Operative Documents for the construction of such Alterations or Improvements.

(c) Property Insurance . During the Base Term, Lessee will maintain all-risk insurance (including builder’s risk insurance including coverage for fire, hurricanes, flood and earthquakes and coverage against damage or loss caused by machinery accidents and operational and performance testing and start-up) against loss or damage covering the Leased Property or any portion thereof against such risks customarily maintained by the Lessee with respect to similar properties in an amount not less than the replacement cost of the Improvements, including any costs that may be required to cause the Leased Property to be reconstructed to comply with then current Applicable Laws. Such property insurance coverage may be subject to deductibles or self-insurance up to an amount that is customarily carried by the Lessee with respect to similar property. Such property insurance shall name each of the Lessor as sole loss payee and as an additional insured.

 

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(d) Other Insurance . Insurance shall not cover any terrorism or war risks unless the Lessee carries insurance for such risks generally on similar property it owns or leases.

Insurance provided pursuant to this Section 11.1 (other than permitted self-insurance) shall be written by reputable insurance companies that are financially sound and solvent with a rating of at least “A-” by A.M. Best’s or Standard and Poor’s or by other insurers approved in writing by the Lessor (including consistent with the Lessee’s past practices, insurance companies affiliated with the Lessee). Each policy referred to in this Section 11.1 shall provide that: (i) it will not be canceled or allowed to lapse without renewal, except after not less than thirty (30) days’ prior written notice to the Lessor or ten (10) days’ prior notice to the Lessor in the case of non-payment of premium; (ii) other than standard policy exclusions, there is no provision in the policies where the interests of the Lessor shall be invalidated by any act or negligence of or breach of warranty by the Lessee or any Person having an interest in the Improvements or the Site; (iii) such insurance is primary and non-contributory with respect to any other insurance carried by or available to the Lessor; (iv) the insurer shall waive customary rights of subrogation, setoff, counterclaim, or other deduction, whether by attachment or otherwise, against any additional insured or loss payee; (v) such general liability policy and pollution legal liability policy shall contain a severability clause providing for coverage of the Lessor as if a separate policy had been issued to the Lessor; (vi) the Lessee will notify the Lessor promptly of any policy cancellation, reduction in policy limits, lapse, modification or amendment, and (vii) the insurer shall not allow for unpaid premiums to be paid by the Lessor.

Except as expressly set forth herein, the insurance required to be maintained by the Lessee under this Section 11.1 may be subject to such deductible amounts or periods, as applicable as is consistent with the Lessee’s practice for other properties similar to the Leased Properties owned or leased by the Lessee, and may be carried under blanket policies maintained by or on behalf of the Lessee so long as such policies otherwise comply with the provisions of this Section 11.

SECTION 11.2. Delivery of Insurance Certificates.

Pursuant to Section 3.1(c) of the Participation Agreement, the Lessee shall deliver to the Lessor certificates of insurance reasonably satisfactory to the Lessor evidencing the existence of all insurance required to be maintained hereunder and setting forth the respective coverages, limits of liability, carrier, policy number and period of coverage. Thereafter, throughout the Lease Term, at the time each of the Lessee’s insurance policies is renewed (but in no event less frequently than once every twelve (12) months) or upon written request by the Lessor during the continuance of an Event of Default, the Lessee shall deliver to the Lessor certificates of insurance evidencing that all insurance required by Section 11.1 to be maintained by the Lessee with respect to the Leased Property is in effect.

Lessee agrees that nothing in this Article XI shall prohibit the Lessor from maintaining its own insurance coverage, at its own expense, which coverage shall not reduce the obligations of the Lessee under this Article XI; provided, however, that no such insurance shall be maintained if its maintenance would prevent the Lessee from maintaining insurance as to the Improvements and the Site with insurers when required to do so herein.

 

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ARTICLE XII

ASSIGNMENT AND SUBLEASING

During the Lease Term, the Lessee may assign, sublease or transfer to any Person, at any time, in whole or in part, its right, title or interest in, to or under this Lease or any portion of the Leased Property without the prior written consent of the Lessor so long as (v) any such assignment, sublease or transfer would not subject the Lessor to a violation of laws or regulations applicable to the Lessor including those promulgated by OFAC, (w) no Event of Default shall have occurred and be continuing or, after giving effect to such assignment, sublease or transfer, would exist, (x) any such sublease is expressly subject and subordinate to this Lease, (y) Lessee remains liable for all obligations under this Lease after giving effect to any such assignment, sublease or transfer, and (z) Lessor retains all of its interests in and benefits of the Cash Collateral and receives prior certification thereof from the Lessee and such other evidence thereof as the Lessor may reasonably request. Unless and until Lessee has exercised the Early Termination Option or the Purchase Option, no sublease may have a term that extends beyond the Base Term Expiration Date. In all cases, Lessee will promptly provide Lessor copies of each such assignment, sublease or transfer.

No sublease will discharge or diminish any of the Lessee’s obligations hereunder and the Lessee shall remain directly and primarily liable under the Lease with respect to the Leased Property and the Operative Documents to which it is a party. Each sublease permitted hereby shall be made and shall expressly provide in writing that it is subject and subordinate to this Lease and the rights of the Lessor hereunder, shall expressly provide for the surrender of the Leased Property by the sublessee at the election of the Lessor after an Event of Default, shall provide that such provisions may be directly enforced by the Lessor and shall provide that such sublessee expressly agrees to comply with the use restrictions set forth in Article X hereof.

Notwithstanding the first paragraph of this Article XII, Lessee may not assign or transfer its rights and obligations under this Lease and the other Operative Documents unless (a) on the effective date of any such assignment and transfer, no Event of Default exists, (b) the parties enter into an assignment agreement in form and substance reasonably satisfactory to the Lessor, (c) all filings of or in respect of any such assignment and transfer necessary to protect the rights of the Lessor in the Leased Property and the other Operative Documents are made in a timely fashion, (d) without limiting any provisions of this Article XII, any such assignment and transfer shall include an appropriate provision for the operation, maintenance and insurance of the Leased Property in accordance with the terms hereof, (e) the Lessor shall have received opinions of counsel with respect thereto and such other matters as the Lessor may reasonably request, (f) such assignment and transfer will not result in a Material Adverse Effect, (g) such assignment and transfer will not result in the imposition of any unindemnified Taxes, (h) the Lessor shall have received such other documents and instruments and the Lessee shall take such further acts as the Lessor may reasonably request to evidence and facilitate such assignment and transfer, provided that no such document or instrument shall increase Lessee’s obligations or diminish Lessee’s rights under the Operative Documents or otherwise, and (i) such assignment and transfer will not, with respect to the Lessor, violate the use restrictions set forth in Article X hereof or Applicable Laws and provided, further that, Lessee shall provide to the Lessor not less than thirty (30) days’ prior written notice of such assignment or transfer, such notice to identify

 

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the assignee or transferee. No such assignment and transfer will diminish or discharge any of the Lessee’s obligations under this Lease or the other Operative Documents.

ARTICLE XIII

LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE

SECTION 13.1. Event of Loss.

(a) Event of Loss During Base Term.

(i) Event of Taking . If an Event of Taking shall occur during the Base Term, the Lessee shall give the Lessor prompt written notice of such occurrence and the date thereof and the Lessee shall on the next succeeding Payment Date (the “ Next Date ”) after such Event of Taking shall have occurred or, if such Event of Taking shall have occurred within ten (10) Business Days preceding a Payment Date, then on the next succeeding Payment Date after such Next Date shall have occurred, terminate this Lease and, as compensation for such Event of Taking, pay to the Lessor on such Payment Date the Break Even Price.

(ii) Event of Loss . If an Event of Loss (other than an Event of Taking) shall occur during the Base Term, the Lessee shall give the Lessor prompt written notice of such occurrence and the date thereof which notice shall contain an election by the Lessee to either (A) purchase the Leased Property from the Lessor on the Next Date after such Event of Loss shall have occurred or, if such Event of Loss shall have occurred within ten (10) Business Days preceding a Payment Date, then on the next succeeding Payment Date after such Next Date shall have occurred, at a purchase price equal to the Break Even Price of the Leased Property (and if the Lessee makes such election the Break Even Price shall become due and payable and the Lessee shall purchase the Leased Property on such Payment Date), or (B) provided no Material Default or Event of Default shall have occurred and be continuing and rebuilding of the Improvements is capable of being completed prior to the end of the Lease Term (as certified in writing by a construction consultant appointed by Lessee and acceptable to the Lessor), rebuild the Improvements and continue the Lease. If the Lessee elects to rebuild the Improvements, the Lessee shall rebuild the Improvements to the condition required to be maintained pursuant to Section 9.1 and so as not to diminish (A) the utility of the Improvements as a corporate office complex including a corporate office building, and any uses ancillary thereto, (B) the then current Fair Market Value as determined by reference to the Appraisal, or (C) the Fair Market Value as determined by reference to the Appraisal as of the scheduled expiration date of the Lease Term.

(b) Purchase and Termination . Upon receipt in full by the Lessor of the Break Even Price pursuant to this Section 13.1, the Lease shall terminate and the obligations of the Lessee hereunder and under the other Operative Documents (other than any obligations expressed herein, or any other Operative Document as surviving termination of this Lease (including any obligations with respect to any existing Event of Default)) shall terminate as of the date of such receipt. Upon such receipt in full of the Break Even Price, the Leased Property and all rights to

 

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any remaining awards or proceeds shall be transferred to the Lessee or its designee in accordance with Section 23.11 hereof.

(c) Application of Payments Relating to an Event of Loss . Subject to Section 13.4, all condemnation proceeds and property insurance proceeds received at any time by Lessee during the Lease Term from any Authority or other Person with respect to any Event of Loss shall be promptly remitted to the Lessor (up to, but not exceeding, the Break Even Price) and, upon the payment in full of the Break Even Price, the Lessor shall assign to the Lessee all rights to any condemnation proceeds and property insurance proceeds and any such condemnation proceeds and property insurance proceeds remaining thereafter or thereafter received shall be paid by the Lessor (whichever shall receive same) over to Lessee, or as Lessee may direct, and any receipt of such proceeds shall satisfy the Lessee’s obligations under Section 13.1.

SECTION 13.2. Condemnation.

In case of a Condemnation for temporary use of all or a portion of the Leased Property or a Condemnation of a portion of the Leased Property, in each case which is not an Event of Taking, this Lease shall remain in full force and effect, without any abatement or reduction of Rent, and the proceeds and awards received from any Authority relating to such Condemnation shall, so long as no Material Default or Event of Default shall have occurred and be continuing, be paid by the Lessor to the Lessee and, to the extent applicable, shall be used by the Lessee to repair and restore the affected Leased Property to the condition required by Section 9.1. Notwithstanding anything herein to the contrary, any portion of such proceeds that is awarded with respect to the time period after the expiration or termination of the Lease Term (unless the Lessee shall have exercised an option to purchase the Leased Property and consummated such purchase) shall be paid to the Lessor; provided, that if the Lessee has paid the Break Even Price to the Lessor, such proceeds (or the portion of such proceeds in excess of portion thereof applied to the Break Even Price) shall be paid by the Lessor over to the Lessee.

SECTION 13.3. Casualty.

Upon any Casualty during the Base Term with respect to the Leased Property which is not an Event of Loss, this Lease shall remain in full force and effect, without any abatement or reduction of Rent and, if the cost of repair would exceed $2,000,000 (as reasonably determined by Lessee), the Lessee shall give to the Lessor written notice of such Casualty. As soon as practicable after such Casualty with respect to the Leased Property has occurred, the Lessee shall repair and rebuild the affected portions of the Leased Property suffering such Casualty (or cause such affected portions to be repaired and rebuilt) to the condition required to be maintained by Section 9.1 and so that the Fair Market Value, utility, useful life and functional capability of such item as restored is at least equivalent to the Fair Market Value, utility and useful life and functional capability of such item as in effect immediately prior to the occurrence of such Casualty (assuming the Improvements were being maintained in accordance with Section 9.1); provided, that at all times during such repair or rebuilding the Lessee shall maintain the Improvements in accordance with Section 9.1.

 

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SECTION 13.4. Proceeds.

If a Material Default or an Event of Default shall have occurred and be continuing, any proceeds received from any Authority or any insurance proceeds, in either case with respect to any Casualty or an Event of Loss, shall be held by the Lessor. So long as no Material Default or Event of Default shall have occurred and be continuing, any such proceeds received from any Authority or any insurance proceeds with respect to any Casualty, or if the Lessee has elected to rebuild the Improvements upon an Event of Loss pursuant to Section 13.1 hereof, with respect to such Event of Loss, shall be paid by the Lessor or by the insurers over to the Lessee up to $2,000,000. Any such proceeds received from any Authority or any insurance proceeds with respect to any Casualty or, if the Lessee has elected to rebuild the Improvements, with respect to an Event of Loss, in each case, not paid over to the Lessee in accordance with the previous sentence, shall be held by the Lessor and made available to the Lessee to pay costs actually incurred by the Lessee to restore the Leased Property as required herein in accordance with Section 13.1, as applicable, and any proceeds received from any Authority or any insurance proceeds remaining after such restoration shall be paid by the Lessor over to the Lessee.

SECTION 13.5. Negotiations.

In the event any part of the Leased Property becomes subject to condemnation or requisition proceedings during the Lease Term, the Lessee shall give notice thereof to the Lessor promptly after the Lessee has knowledge thereof and, to the extent permitted by any Applicable Laws, the Lessee shall control the negotiations with the relevant Authority unless an Event of Default has occurred and is continuing, in which case the Lessor shall be entitled to control such negotiations in consultation with the Lessee; provided, that in any event the Lessor may participate at the Lessor’s expense (or if an Event of Default is continuing or such negotiations occur during the Construction Period, at the Lessee’s expense) in such negotiations. Lessee shall give to the Lessor such information, and copies of such documents, which relate to such proceedings, or which relate to the settlement of amounts due under insurance policies required by Section 11.1, and are in the possession of the Lessee, as are reasonably requested by the Lessor. If the proceedings relate to an Event of Taking, the Lessee shall act diligently in connection therewith. Nothing contained in this Section 13.5 shall diminish the Lessor’s rights with respect to condemnation proceeds and property insurance proceeds under Section 13.1.

SECTION 13.6. No Rent Abatement.

Rent shall not abate hereunder by reason of any Casualty, any Event of Loss, any Event of Taking or any Condemnation of any portion of the Leased Property, and the Lessee shall continue to perform and fulfill all of the Lessee’s obligations, covenants and agreements hereunder notwithstanding such Casualty, Event of Loss, Event of Taking or Condemnation until the Lease Expiration Date.

ARTICLE XIV

CERTAIN DUTIES AND RESPONSIBILITIES

Lessor undertakes to perform such duties and only such duties as are specifically set forth herein and in the other Operative Documents, and no implied covenants or obligations shall be

 

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read into this Lease against the Lessor, and the Lessor agrees that it shall not, nor shall it have a duty to, manage, control, use, sell, maintain, insure, register, lease, operate, modify, dispose of or otherwise deal with the Improvements or the Site in any manner whatsoever, except as required by the terms of the Operative Documents and as otherwise provided herein.

ARTICLE XV

INSPECTION

Upon seven (7) Business Days prior notice to the Lessee, the Lessor or its authorized representatives (the “ Inspecting Parties ”) at any time during the Lease Term may inspect (a) the Improvements and the Site and (b) the books and records of the Lessee and its Affiliates relating to the Improvements and the Site and make copies and abstracts therefrom. All such inspections shall be (i) during the Lessee’s normal business hours, (ii) subject to the Lessee’s reasonable confidentiality requirements, and (iii) at the expense and risk of the Inspecting Parties, except that, if a Default or Event of Default has occurred and is continuing, the Lessee shall reimburse the Inspecting Parties for the reasonable out-of-pocket costs and expenses of such inspections and, except for the Inspecting Party’s gross negligence or willful misconduct, such inspection shall be at the Lessee’s risk. No inspection shall unreasonably interfere with the Lessee’s operations. None of the Inspecting Parties shall have any duty to make any such inspection or inquiry. None of the Inspecting Parties shall incur any liability or obligation by reason of making any such inspection or inquiry unless and to the extent such Inspecting Party causes damage to the Improvements or the Site or any property of the Lessee or any other Person during the course of such inspection.

ARTICLE XVI

ENVIRONMENTAL MATTERS

SECTION 16.1. Environmental Matters.

At the Lessee’s sole cost and expense, the Lessee shall promptly and diligently and in accordance with Applicable Laws commence and complete any response, clean up, remedial or other action necessary to remove, clean up or remediate any Environmental Violation with respect to the Improvements or the Site to the extent required of the Lessee or the Lessor in order to comply with Applicable Laws (a “ Remediation ”). Lessee shall, upon completion of remedial action by the Lessee (i) with respect to any Material Environmental Violation described in clause (ii) of the definition thereof, cause to be prepared by an authorized representative of the Lessee a certificate describing in sufficient detail such Environmental Violation and the actions taken by the Lessee (or its agents) in response to such Environmental Violation and a statement of such authorized representative of the Lessee that such Environmental Violation has been remedied in compliance in all material respects with Applicable Laws and (ii) with respect to any other Material Environmental Violation, cause to be prepared by the Environmental Expert a report describing in sufficient detail such Environmental Violation and the actions taken by the Lessee (or its agents) in response to such Environmental Violation, and a statement by the Environmental Expert that the Environmental Violation has been remedied in compliance in all material respects with Applicable Laws. Each Environmental Violation shall be remedied prior to the Lease Expiration Date unless the Leased Property has been purchased by the Lessee in

 

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accordance with Section 20.1, 20.2 or 22.1(a), provided that if remedying such Environmental Violation requires continued operation of a remediation system or monitoring of testing wells or similar ongoing testing, the Lessee shall have access at reasonable times and shall remain obligated to perform such actions unless the Lessor, in its sole discretion, notifies Lessee to terminate such actions. Nothing in this Article XVI shall reduce or limit the Lessee’s obligations under Article VII of the Participation Agreement (which obligations shall include any Claims arising from such actions).

SECTION 16.2. Notice of Environmental Matters.

Promptly upon the Lessee’s obtaining knowledge of the existence of any Material Environmental Violation with respect to the Improvements or the Site, the Lessee shall notify the Lessor in writing of such Material Environmental Violation. Promptly, but in any event within thirty (30) days from the date a Responsible Officer of the Lessee has actual knowledge thereof, the Lessee shall provide to Lessor written notice of any pending or, to the Lessee’s knowledge, threatened (in writing) claim, action or proceeding involving any Material Environmental Violation with respect to the Improvements or the Site. All such notices shall describe in reasonable detail the nature of the claim, action or proceeding and the Lessee’s proposed response thereto. In addition, the Lessee shall provide to the Lessor, within thirty (30) days of receipt, copies of all material written communications with any Authority relating to any Material Environmental Violation. Lessee shall also promptly provide such detailed reports of any Material Environmental Violation as may reasonably be requested by the Lessor. For purposes hereof, “ Material Environmental Violation ” shall mean any Environmental Violation (i) which imposes or, in the good faith judgment of the Lessee or the Lessor, could reasonably be expected to impose criminal liability on the Lessor, or (ii) the cost of which to remediate is or could reasonably be expected to be in excess of $1,000,000.

ARTICLE XVII

EVENTS OF DEFAULT

The occurrence of any one or more of the following events, whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body, shall constitute an “ Event of Default ”:

(a) the Lessee shall fail to make any payment of Basic Rent when due and such failure shall continue for a period of three (3) Business Days after notice thereof, or the Lessee shall fail to make any payment of the Break Even Price, Lease Balance or other amounts due and payable under Article XIII, Article XX, Section 21.1(a) or Article XXII when due;

(b) the Lessee shall fail to make payment of any Supplemental Rent (other than any Supplemental Rent described in clause (a) above) when due and such failure shall continue for a period of ten (10) Business Days after notice thereof;

(c) the Lessee shall fail to maintain insurance as required by Article XI of this Lease;

 

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(d) the Lessee shall fail to perform or observe any of the terms, covenants, conditions and agreements set forth in Articles XXI and XXII of this Lease other than the failure to give notice of an end of term option pursuant to Section 21.1 hereof;

(e) any representation, warranty, certification or statement made or deemed to be made by the Lessee under this Lease, any other Operative Document (except as to any Other Lease Document) or in any certificate, financial statement or other document delivered pursuant hereto or thereto, shall at any time prove to have been incorrect in any material respect when made or deemed made and Lessee shall fail to cure the underlying facts causing such representation, warranty, certification or statement to be incorrect in all material respects for a period of ten (10) Business Days after the earlier of Actual Knowledge or notice thereof;

(f) the Lessee shall default in the performance or observance of any term, covenant, condition or agreement contained in this Lease (other than as specifically provided for otherwise in this Article XVII) or any other Operative Document (except as to any Other Lease Document) and such default shall continue for a period of thirty (30) days after the earlier of Actual Knowledge thereof or written notice thereof has been given to the Lessee; provided, however, that if such failure is capable of cure but cannot be cured by payment of money or cannot be cured by diligent efforts within such thirty (30) day period but such diligent efforts shall be properly commenced within such thirty (30) day period and the Lessee is diligently pursuing, and shall continue to pursue diligently remedy of such failure, such cure period shall be extended for an additional period of time in excess of such cure period as may be necessary to cure, not to extend beyond the earlier to occur of (i) the Lease Expiration Date or (ii) one hundred and twenty (120) days after the earlier of Actual Knowledge thereof or written notice thereof having been given to the Lessee;

(g) (i) Lessee or any of its Subsidiaries shall default beyond any applicable period of grace in any payment of principal of or interest on any indebtedness for borrowed money on which Lessee or any of its subsidiaries is liable in an aggregate principal amount then outstanding of $50,000,000 or more or (ii) an event of default (other than a failure to pay principal or interest) as defined in any mortgage, indenture, agreement or instrument under which there may be issued, or by which there may be secured or evidenced, any such indebtedness shall happen and shall result in such indebtedness becoming or being declared due and payable prior to the date on which it could otherwise become due and payable;

(h) the Lessee or any material Subsidiary shall file a voluntary petition of insolvency, bankruptcy or a voluntary petition or an answer seeking reorganization in a proceeding under any bankruptcy, insolvency or other similar laws (as now or hereafter in effect) or an answer admitting the material allegations of a petition filed against the Lessee in any such proceeding; or the Lessee shall, by voluntary petition, answer or consent, seek relief under the provisions of Bankruptcy Code or any other now existing or future bankruptcy, insolvency or other similar law providing for reorganization, administration or winding-up or for an agreement, composition, extension or adjustment with their respective creditors, or shall adopt a resolution of liquidation, including but not limited to, any petition or notice filed by the Board of Directors of the Lessee or such Subsidiary or the Lessee shall admit in writing its inability or fail generally to pay its debts or the Lessee shall seek the appointment of a trustee in bankruptcy, administrator or a receiver for any kind of insolvency proceedings for itself or any substantial portion of its assets,

 

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or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall take any corporate action to authorize any of the foregoing;

(i) an involuntary case or other proceeding shall be commenced against the Lessee or any material Subsidiary seeking its bankruptcy, liquidation, reorganization, winding-up or other relief with respect to it or its debts under the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of sixty (60) consecutive days; or the Lessee or any material Subsidiary shall be declared bankrupt or any other order for relief shall be entered against the Lessee or any material Subsidiary under the U.S. Federal bankruptcy laws or any other relevant bankruptcy laws of any jurisdiction;

(j) a final judgment or order for the payment of money in excess of $125,000,000 (to the extent not covered by insurance) shall be rendered against the Lessee or any material Subsidiary and the Lessee or such Subsidiary shall not discharge the same or provide for its discharge in accordance with its terms, or procure a stay of execution thereof, within sixty (60) days after the date of entry thereof and, in the case of any such stay of execution, within said period of sixty (60) days (or such longer period during which execution of such judgment shall have been stayed) appeal therefrom and cause the execution thereof to be stayed during such appeal;

(k) a Change in Control shall occur;

(l) (i) Lessee or any ERISA Affiliate shall fail to pay within thirty (30) days of the due date thereof an amount or amounts aggregating in excess of $100,000,000 which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; (ii) notice of intent to terminate a Plan having unfunded benefit liabilities (within the meaning of Section 4001(a)(18) of ERISA) in excess of $100,000,000 (a “ Material Plan ”) shall be filed under Title IV of ERISA by Lessee or any ERISA Affiliate, any plan administrator or any combination of the foregoing; (iii) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan; (iv) the failure of Lessee or any ERISA Affiliate to make any required contribution to a Multiemployer Plan unless the failure is cured within thirty (30) days, (v) the withdrawal or partial withdrawal of Lessee or any ERISA Affiliate from any Multiemployer Plan, (vi) the receipt by Lessee or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from Lessee or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, “ insolvent ” (within the meaning of Section 4245 of ERISA) or in “ reorganization ” (within the meaning of Section 4241 of (ERISA) or (vii) the imposition of liability on Lessee or any ERISA Affiliate by reason of the application of Section 4212(c) of ERISA, in each case with respect to clauses (iv)-(vii), to the extent that such event, taken together with any other such events described in clauses (iv)-(vii), could reasonably be expected to result in Lessee incurring aggregate liability in excess of $100,000,000;

 

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(m) any Operative Document (except as to any Other Lease Document) or any assignment, security interest or Lien granted thereunder (except in accordance with its terms), in whole or in part, terminates, ceases to be a legal, valid and binding enforceable obligation of the Lessee or any of its Affiliates or the Lessee or any of its Affiliates, directly or indirectly, contests in any manner in any court the effectiveness, validity, binding nature or enforceability thereof; or any assignment, security interest or Lien securing the Lessee’s obligations under the Operative Documents, in whole or in material part, ceases to be perfected (except as the result of any affirmative act of the Lessor, failure by the Lessor to file a UCC continuation statement or by operation of law) with the same priority as was in effect on the Closing Date; or

(n) an Event of Default shall have occurred under and as defined in the Pledge Agreement (Port 1).

ARTICLE XVIII

ENFORCEMENT

SECTION 18.1. Remedies.

(a) During the continuation of an Event of Default and notwithstanding any Event of Loss or termination of the Lease pursuant to Article XIII, at the Lessor’s option and without limiting the Lessor in the exercise of any other right or remedy the Lessor may have on account of such Event of Default, and without any further demand or notice, the Lessor may to the fullest extent permitted under Applicable Laws cause the following to occur:

(i) By notice to the Lessee, the Lessor may terminate the Lessee’s right to possession of the Leased Property.

(ii) The Lessor may (i) demand that Lessee, and Lessee shall upon the written demand of the Lessor, return the Leased Property promptly to the Lessor in the condition required by Section 22.5 and the Lessor shall not be liable for the reimbursement of Lessee for any costs and expenses incurred by Lessee in connection therewith, and (ii) without prejudice to any other remedy which the Lessor may have for possession of the Leased Property, and to the extent and in the manner permitted by Applicable Laws, enter upon the Site and Improvements and take immediate possession of (to the exclusion of Lessee) the Leased Property or any part thereof and expel or remove Lessee, by summary proceedings or otherwise, all without liability to Lessee for or by reason of such entry or taking of possession (provided that, the Lessor shall remain liable for actual damages caused by its bad faith, gross negligence or willful misconduct), whether for the restoration of damage to property caused by such taking of possession or otherwise and, in addition to the Lessor’s other damages, Lessee shall be responsible for all actual and reasonable costs and expenses incurred by the Lessor in connection with any reletting, including brokers’ fees and all costs of any alterations or repairs made by the Lessor;

(iii) The Lessor may terminate this Lease with respect to all or any part of the Leased Property and/or declare the aggregate outstanding Lease Balance to be immediately due and payable, and the Lessor shall be entitled to (x) recover from the Lessee the following amounts and (y) take the following actions:

 

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(1) the Lessee shall pay all accrued and unpaid Rent hereunder (including Basic Rent and Supplemental Rent) for the period commencing on the Closing Date through the Final Rent Payment Date with respect to the Leased Property;

(2) the Lessor may elect either of the following with respect to any or all of the Leased Property:

(A) the Lessor may demand, by written notice to the Lessee specifying a payment date (the “ Final Rent Payment Date ”) on a Business Day no earlier than thirty (30) days after the date of such notice but, in any event, no later than the date the Leased Property or part thereof is sold pursuant to clause (B)(2) hereof, that the Lessee purchase the Leased Property, and the Lessee shall pay to the Lessor, on the Final Rent Payment Date (in lieu of Basic Rent due after the Final Rent Payment Date), an amount equal to the sum of (x) the Lease Balance computed for the period commencing on the Closing Date to and including the Final Rent Payment Date, plus (y) all accrued and unpaid Rent due and unpaid for the period commencing on the Closing Date to and including the Final Rent Payment Date (less any amounts paid by the Lessee under clause (x) above), and upon payment of such amount, and the amount of all other sums due and payable by the Lessee under this Lease and the other Operative Documents (and interest at the Overdue Rate on the amounts payable under this clause (B)(1) from the Final Rent Payment Date to the date of actual payment), the Leased Property shall be transferred to the Lessee or its designee pursuant to Section 23.11; or

(B) the Lessor may sell its interest in the Leased Property and/or pursue any and all remedies under the Security Documents, and, in any event, the Lessee shall pay to the Lessor an amount equal to the excess, if any, of (x) all amounts described in clause (B)(1) above due the Lessor over (y) the net Sale Proceeds received by the Lessor from the foregoing sale (provided, that in calculating such net Sale Proceeds, all fees, costs, expenses and Taxes to the extent not indemnified and not paid by the Lessee pursuant to Section 7.2 of the Participation Agreement incurred by the Lessor in connection with such sale, including legal fees, shall be deducted from such Sale Proceeds);

(3) Any other amount necessary to compensate the Lessor for all the damages caused by or resulting from the Lessee’s failure to perform the Lessee’s obligation under this Lease, including the costs and expenses (including reasonable attorneys’ fees, advertising costs and brokers’ commissions) of recovering possession of the Leased Property, removing Persons or property from the Leased Property, placing the Leased Property in good order, condition, and repair, preparing and altering the Leased Property for reletting, and all other costs and expenses of reletting; and

 

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(4) Such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by Applicable Laws.

(iv) The Lessor may exercise any and all rights and remedies under the Security Documents including with respect to the Cash Collateral subject to the Pledge Agreement and accounts under the Blocked Account Agreement.

(v) If an Event of Default under this Lease is continuing, this Lease shall continue in effect for so long as the Lessor does not terminate this Lease, and the Lessor may enforce all of the Lessor’s rights and remedies under this Lease, including the right to recover the Rent hereunder (including Basic Rent (when applicable) and Supplemental Rent) as it becomes due under this Lease. Lessee’s right to possession shall not be deemed to have been terminated by the Lessor except pursuant to clause (i) above. The following do not constitute a termination of this Lease:

(1) Acts of maintenance or preservation or efforts to relet the Leased Property; and

(2) Withholding of consent to assignment or subletting, or terminating a subletting or assignment by the Lessee.

(vi) In the event that the Lessor elects to continue this Lease in full force and effect following the termination of the Lessee’s right of possession of the Improvements, the Lessor, to the maximum extent permitted by Applicable Laws, may enforce all its rights and remedies under this Lease including the right to recover Rent hereunder as it becomes due. During the continuance of an Event of Default or following the termination of the Lessee’s right to possession of the Improvements, the Lessor may enter the Improvements and the Site in accordance with Applicable Laws without terminating this Lease and sublet all or any part of the Leased Property for the Lessee’s account to any Person, for such term (which may be a period beyond the remaining Lease Term), at such rents and on such other terms and conditions as are commercially reasonable. In the event of any such subletting, rents received by the Lessor from such subletting shall be applied (a) first, to the payment of the reasonable costs incurred by the Lessor in maintaining, preserving, altering and preparing the Leased Property for subletting and other reasonable costs of subletting, including reasonable brokers’ commissions and attorneys’ fees; (b) second, to the payment of Rent hereunder then due and payable; (c) third, to the payment of future Rent hereunder as the same may become due and payable hereunder; (d) fourth, to the payment of all other obligations of the Lessee hereunder and under the other Operative Documents (including the Lease Balance), and (e) fifth, the balance, if any, shall be paid to the Lessee upon (but not before) expiration of the Lease Term. If the rents received by the Lessor from such subletting, after application as provided above, are insufficient in any period to pay the Rent due and payable hereunder for such period, the Lessee shall pay such deficiency to the Lessor upon demand. Notwithstanding any such subletting for the Lessee’s account without termination, the Lessor may at any time thereafter, by written notice to the Lessee, elect to terminate this Lease.

 

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(vii) The Lessor may exercise any other right or remedy that may be available to it under Applicable Laws or in equity, or proceed by appropriate court action (legal or equitable) to enforce the terms or to recover damages for the breach hereof, including those arising from a breach by the Lessee of its obligations under Section 20.2 hereof. Separate suits may be brought to collect any such damages for any Rent installment period(s), and such suits shall not in any manner prejudice the Lessor’s right to collect any such damages for any subsequent Rent installment period(s), or the Lessor may defer any such suit until after the expiration of the Lease Term, in which event such suit shall be deemed not to have accrued until the expiration of the Lease Term.

(viii) The Lessor may retain and apply against the Lessor’s damages all sums which the Lessor would, absent such Event of Default, be required to pay to, or turn over to, the Lessee pursuant to the terms of this Lease.

The Lessee acknowledges and agrees that upon the declaration of an Event of Default the amount due and owing by the Lessee to the Lessor hereunder shall be the Lease Balance and that to the maximum extent permitted by Applicable Laws, the Lessee waives any right to contest the Lease Balance as the liquidated sum or agreed upon sum due and owing.

(b) In the event that an Event of Default is declared (or deemed declared) solely and exclusively on the basis of one or more 97-1 Events of Default,

(x) a claim or demand by the Lessor for payment by Lessee of or in respect of the Lease Balance under Section 18.1(a) hereof shall be limited as follows:

(i) any obligation of the Lessee to pay the Lease Balance and amounts due under clauses (C) and (D) of Section 18.1(a)(iii) shall be reduced to be an obligation to pay an amount equal to the Recourse Deficiency Amount; provided, however, that if Lessee shall not pay the full Lease Balance and such other amounts, the Lessor shall not have any obligation to transfer the Leased Property to the Lessee or its designee as provided in clause (B)(1) of Section 18.1(a)(iii); and

(ii) any obligation of the Lessee to pay any shortfall determined by reference to the Lease Balance as provided in clauses (B)(2) of Section 18.1(a)(iii), and amounts due under clauses (C) and (D) of Section 18.1(a)(iii) shall be revised to be an obligation to pay the lesser of (i) such shortfall plus such other amounts and (ii) the Recourse Deficiency Amount; and

the references to “ Lease Balance ” in the last paragraph of Section 18.1(a) and in Section 18.2 shall be deemed references to the amount described in clause (i) or clause (ii) above, as applicable, provided, however, that the foregoing limitation shall not limit or affect any other rights of the Lessor as Lessor shall have all rights and remedies available under the Operative Documents or available at law, equity or otherwise including the right to demand the payment of Supplemental Rent (other than the Lease Balance) and the right to require surrender and return or sale to a third party of the Leased Property all as set forth herein; and

 

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(y) if Section 18.1(a)(vi) is applicable, the reference to Lease Balance in clause (d) thereof shall be a reference to the Recourse Deficiency Amount so long as the Lease has not been terminated.

 

  SECTION 18.2. Proceeds of Sale; Deficiency.

(a) All payments received and amounts held or realized by the Lessor at any time when an Event of Default shall be continuing and after the Lease Balance shall have been accelerated pursuant to this Article XVIII as well as all payments or amounts then held or thereafter received by the Lessor (except for rents received by the Lessor from subletting pursuant to Section 18.1(a)(vi), which shall be distributed as set forth therein) and the proceeds of sale pursuant to Section 18.1(a)(iii)(B)(2) shall be distributed forthwith upon receipt by the Lessor as follows:

first , to the Lessor, so much of such amount as is required to reimburse the Lessor for any fees, costs, expenses, Taxes or other loss incurred by it (to the extent not previously reimbursed);

second , to the Lessor, so much of such amounts as are required to pay all expenses or fees incurred by the Lessor in connection therewith including Break Funding Amounts, if any;

third , to the Lessor, so much of such amount as is required to pay all accrued Yield thereon;

fourth , to the Lessor, so much of such amounts as are required to pay in full the outstanding amount of the Lease Balance;

fifth , to the Lessor, so much of such amounts as are required to pay all outstanding obligations of Lessee pursuant to the Operative Documents including all indemnities which are due and payable; and

sixth , to Lessee, the balance of such amount, if any.

SECTION 18.3. Waiver of Certain Rights.

To the maximum extent permitted by Applicable Laws, (a) the Lessee hereby waives the benefit of any appraisement, valuation, stay, extension, reinstatement and redemption laws now or hereafter in force and all rights of marshalling in the event of any sale of the Leased Property or any interest therein and (b) if this Lease shall be terminated pursuant to this Article XVIII, the Lessee waives, to the fullest extent permitted by Applicable Laws, (i) any notice of re-entry or the institution of legal proceedings to obtain re-entry or possession, (ii) any right of redemption, re-entry or repossession, (iii) the benefit of any laws now or hereafter in force exempting property from liability for rent or for debt or limiting the Lessor with respect to the election of remedies, (iv) any other rights which might otherwise limit or modify any of the Lessor’s rights or remedies under this Article XVIII, and (v) any rights now or hereafter conferred under California Applicable Laws that may require the Lessor to sell, lease or otherwise use the Leased Property, or any part thereof in mitigation of the Lessor’s damages upon the occurrence of an

 

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Event of Default or that may otherwise limit or modify any of the Lessor’s rights or remedies under this Article XVIII.

SECTION 18.4. Remedies Cumulative; No Waiver; Consents.

To the extent permitted by, and subject to the mandatory requirements of, Applicable Laws, each and every right, power and remedy herein specifically given to the Lessor or otherwise in this Lease shall be cumulative and shall be in addition to every other right, power and remedy herein specifically given or now or hereafter existing at law, in equity or by statute, and each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised from time to time and as often and in such order as may be deemed expedient by the Lessor, and the exercise or the beginning of the exercise of any power or remedy shall not be construed to be a waiver of the right to exercise at the same time or thereafter any other right, power or remedy. No delay or omission by the Lessor in the exercise of any right, power or remedy or in the pursuit of any remedy shall impair any such right, power or remedy or be construed to be a waiver of any default on the part of the Lessee or be an acquiescence therein. Lessor’s consent to any request made by the Lessee shall not be deemed to constitute or preclude the necessity for obtaining the Lessor’s consent, in the future, to all similar requests. No express or implied waiver by the Lessor of any Event of Default shall in any way be, or be construed to be, a waiver of any future or subsequent Default or Event of Default.

ARTICLE XIX

RIGHT TO CURE

If any Event of Default other than those described in paragraphs (h) and (i) of Article XVII shall be continuing and in the Lessor’s reasonably exercised judgment the Lessee is not acting diligently and appropriately to cure such Event of Default, the Lessor may, but shall not be obligated to, on five (5) Business Days’ prior notice to the Lessee (except in the event of an emergency, in which case only one (1) Business Day’s prior notice shall be required), cure such Event of Default and the Lessor shall not thereby be deemed to have waived any default caused by such failure to cure, and the amount of such payment and the amount of the expenses of the Lessor (including reasonable attorneys’ fees and expenses) incurred in connection with such cure, together with interest thereon at the Overdue Rate, shall be deemed Supplemental Rent, payable by the Lessee to the Lessor upon demand.

ARTICLE XX

EARLY TERMINATION OPTION; OBLIGATION TO PURCHASE; MID-TERM REMARKETING OPTION

SECTION 20.1. Early Termination Option.

Without limitation of the Lessee’s purchase obligation pursuant to Section 20.2, the Lessee may, at its option, on any Business Day following the Base Term Commencement Date but prior to the Lessee’s election to exercise the Return Option, purchase all, but not less than all, of the Leased Property (the “ Early Termination Option ”) at a price equal to the Break Even Price. In order to exercise its option to purchase the Leased Property pursuant to this Section 20.1, the Lessee shall give the Lessor not less than thirty (30) days’ prior written notice of such

 

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election which election, in each case, shall be irrevocable when made. Notwithstanding anything herein to the contrary, the Lessee shall not be permitted to exercise the Early Termination Option following the occurrence and during the continuance of an Event of Default unless it shall (i) elect the Early Termination Option on or before ten (10) Business Days following such Event of Default, and (ii) consummate the purchase of the Leased Property by Lessee (or its designee) before twenty (20) Business Days following such Event of Default. Upon receipt of the Break Even Price, the Leased Property shall be transferred to the Lessee (or its designee) pursuant to Section 23.11.

SECTION 20.2. Required Purchase.

So long as the Lessor has not exercised any other remedy inconsistent therewith, the Lessee shall be obligated to purchase the Leased Property for the Break Even Price automatically and without notice upon the occurrence of any Event of Default described in clauses (h) or (i) of Article XVII and upon receipt of the Break Even Price the Leased Property shall be transferred to the Lessee (or its designee) pursuant to Section 23.11.

SECTION 20.3. Mid-term Remarketing Option.

At any time during the Lease Term other than after the occurrence and during the continuance of an Event of Default, Lessee shall have the option (the “ Remarketing Option ”) to designate a third party purchaser and to cause the Lessor to sell the Leased Property to such purchaser on the date designated for the sale thereof by Lessee (the “ Remarketing Sale Date ”) provided, that the Lessor shall have received the Remarketing Sale Proceeds of such sale together with (in the case where such Remarketing Sale Proceeds do not equal or exceed the Break Even Price) additional cash amounts paid to the Lessor by the Lessee, as Supplemental Rent, in an amount equal to the excess of the Break Even Price over such Remarketing Sale Proceeds. If the Remarketing Sale Proceeds exceed the Break Even Price as of such Remarketing Sale Date, the Lessor shall pay over to the Lessee the portion of the Remarketing Sale Proceeds in excess thereof after satisfaction of all amounts due hereunder or under the other Operative Documents. Subject to, and concurrent with, the receipt by the Lessor of funds equal to or in excess of the Break Even Price, on the Remarketing Sale Date, the Lessor shall convey to the Lessee or its designee the Leased Property in accordance with Section 23.11. The Lessee shall be responsible for the payment of all fees and expenses of the Lessor (including reasonable attorneys’ fees and expenses) incurred in connection with any exercise or purported exercise of the Remarketing Option.

ARTICLE XXI

END OF TERM OPTIONS

SECTION 21.1. End of Term Options

At least one hundred and eighty (180) days prior to the Return Date, but not more than two hundred seventy (270) days, the Lessee shall, by delivery of an irrevocable written notice to the Lessor, exercise one of the following options:

 

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(a) Purchase for cash for the Break Even Price all, but not less than all, of the Leased Property then subject to this Lease on the last day of the Lease Term (the “ Purchase Option ”) and if the Lessee shall have elected the Purchase Option, upon the payment to the Lessor of the Break Even Price, the Leased Property shall be transferred to the Lessee (or its designee) pursuant to Section 23.11; or

(b) Provided no Default or Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Event of Default with respect to which the Lessor has not yet commenced exercising remedies) shall have occurred and be continuing, return the Leased Property to the Lessor at the end of the scheduled expiration date of the Lease Term (the “ Return Option ”). The Return Option shall be conditioned upon and subject to the fulfillment by the Lessee of each of the terms and conditions set forth in Article XXII and, thereafter, the Lessee shall have no further obligations to pay Basic Rent or the remaining Lease Balance. Lessee shall not enter into any additional subleases or renew any subleases with respect to the Leased Property following the Lessee’s election of the Return Option. Following the Lessee’s election of the Return Option, the Lessee shall not remove any Alterations.

SECTION 21.2. Election of Options.

In the event Lessor shall not have received the foregoing notice from Lessee prior to the date that is one hundred and eighty (180) days prior to the last day of the Return Date, by delivery of written notice via nationally recognized overnight courier to the Lessee, Lessor may notify the Lessee of the expiration of the election notice period set forth in the preceding section. If, in any event, the Lessee fails to make a timely election under Section 21.1 hereof, the Lessee shall be deemed to have elected the Return Option. Lessee may not elect the Return Option if there exists on the date the election is made a Default, an Event of Default or an Event of Loss. In the event a Default or an Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) or an Event of Loss shall have occurred after the election by the Lessee, or deemed election by the Lessee, of the Return Option, then notwithstanding any such election or deemed election, Lessee shall be deemed to have elected the Purchase Option with respect to the Leased Property. In the event a Default or Event of Default that is solely and exclusively based on one or more 97-1 Events of Default shall have occurred after the election by Lessee of the Return Option, (i) Lessee may continue with its Return Option so long as the Lessor has not commenced exercising remedies with respect thereto, and (ii) Lessee shall not be permitted to continue with its Return Option and shall be subject to Section 18 hereof including the limitations set forth in Section 18.1(b) hereof, in the event the Lessor shall have commenced remedies with respect thereto.

ARTICLE XXII

RETURN OPTION

SECTION 22.1. Return Option Procedures.

(a) If the Lessee elects or is deemed to have elected the Return Option and the Lessor elects to require the Lessee to offer to sell the Leased Property, at the option of the Lessor, (x)

 

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the purchaser shall be reasonably entitled (whether on or before the Return Date or thereafter) to be granted a temporary easement or other right of access from the Lessee on the Leased Property to enable the purchaser to have access over paths and streets necessary to remarket the Leased Property (the “ Easement ”) (which obligation of the Lessee to grant such Easement hereunder shall survive the termination of this Lease), or (y) the Lessee shall use commercially reasonable efforts as non-exclusive agent for the Lessor to obtain the highest all cash purchase price for the Leased Property. In the event the Lessee receives any bid, the Lessee shall within five (5) Business Days after receipt thereof and, at least five (5) Business Days prior to the Return Date, certify to the Lessor in writing the amount and terms of such bid and the name and address of the party (who shall not be the Lessee or any Subsidiary of the Lessee or, unless the sum of (i) the Sale Proceeds pursuant to a proposed bid which the Lessee desires to accept plus (ii) the Recourse Deficiency Amount plus (iii) any amount payable pursuant to Section 7.5 of the Participation Agreement is not less than the Break Even Price, any Person with whom the Lessee has an understanding or arrangement regarding their future use, possession or ownership of the Leased Property or the Lessor’s other rights, title and interest in and to the Leased Property, but who may be the Lessor, any Affiliate thereof, or any Person contacted by the Lessor (other than any Person otherwise forbidden from being such purchaser pursuant to the foregoing parenthetical)) submitting such bid, and the Lessee and any sublessee shall confirm in writing both to the Lessor and to the bidder that it will vacate the Leased Property and take such reasonable steps as may be required to grant to the bidder the Easement on or before the Return Date.

(b) If the sum of (i) the Sales Proceeds pursuant to a proposed bid which the Lessee desires to accept plus (ii) the Recourse Deficiency Amount plus (iii) any amount payable pursuant to Section 7.5 of the Participation Agreement is not less than the Break Even Price, then the Lessee shall determine and accept the winning bid; otherwise, Lessor shall have the right, in its sole and absolute discretion to accept or reject any bid so presented by the Lessee. As non-exclusive selling agent, Lessee’s expenses and the out-of-pocket expenses incurred by the Lessor in connection with any such bidding and sale process pursuant to this Section 22.1 as well as all costs and expenses incurred by the Lessor or a buyer or potential buyer of the Leased Property to place the Leased Property in the condition required by Section 9.1, shall be deducted from the Sale Proceeds. On the Return Date, so long as no Event of Default or Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) shall have occurred and be continuing: (w) the Lessee shall transfer all of the Lessee’s right, title and interest in the Leased Property if any, that the Lessor does not yet hold pursuant to the terms of the Operative Documents to the bidder, if any, which shall have submitted the bid (if any) accepted pursuant to this Section 22.1(b), in the same manner and in the same condition and otherwise in accordance with all of the terms of this Lease, warranted free and clear of all Liens other than Permitted Liens described in clauses (a) and (b) of the definition thereof; (x) subject to the prior or current payment by the Lessee of all amounts due under clause (y) of this sentence, the Lessor shall comply with any conditions to transfer set forth in Section 22.2 and the transfer provisions of Section 22.1(b) in order to transfer its interests in the Leased Property for cash to such bidder; (y) the Lessee, as non-exclusive selling agent, shall simultaneously pay to the Lessor all of the amounts required pursuant to Section 22.3; and (z) after payment in full of all amounts owing to the Lessor hereunder and under the terms of the bid, this Lease shall terminate or, at Lessee’s option, shall be assigned by Lessor without recourse or warranty by Lessor to a

 

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designee concurrent with the payment of such designated amount. The Lessor shall not have any responsibility for procuring any purchaser; provided, however, that the Lessor and its designees may engage in activities to market and sell the Leased Property and may terminate Lessee as its non-exclusive selling agent upon one (1) Business Day’s notice. Any such activities reasonably undertaken by the Lessor pursuant to this Section 22.1(b) shall be at the Lessor’s sole cost and expense (which shall be deducted from the Sale Proceeds in accordance with the foregoing), shall not reduce the Lessee’s obligations, as non-exclusive selling agent, under this Section 22.1(b) or during the Extended Remarketing Period) to use commercially reasonable efforts, as non-exclusive selling agent, to sell the Leased Property in accordance with the requirements of this Section 22.1(b) and Section 22.2. If the Sale Proceeds exceed the Break Even Price as of the Return Date, the Lessee shall retain or be entitled to receive the portion of the Sale Proceeds in excess thereof. If the Sale Proceeds are less than the aggregate outstanding Break Even Price, the Lessee shall pay or shall cause to be paid to the Lessor, as Supplemental Rent, on the date of such sale (but not later than the Return Date), in addition to the Sale Proceeds, an additional amount as set forth in the last sentence of Section 22.3(a) hereof.

SECTION 22.2. Sale.

Lessee, as non-exclusive selling agent, shall, on the Return Date, at the Lessee’s own expense (without right of reimbursement therefor out of gross sale proceeds except as provided in the third sentence of Section 22.1(b) above), negotiate the terms of any applicable sale, such that the Leased Property transferred to the purchaser in accordance with Section 22.1 hereof is (i) free and clear of all Liens, other than Permitted Liens described in clauses (a) or (b) of the definition thereof and (ii) (A) in the condition required by the terms of this Lease, (B) capable of operating in accordance with the purposes set forth in the Appraisal, (C) without any lessees claiming relief or exemption from judicial execution, and (D) in compliance with all Applicable Laws. Lessee, as non-exclusive selling agent, shall obtain all necessary governmental consents and approvals and make all governmental filings required by the Lessee or the Lessor in connection with any sale and grant of rights. Lessee, as non-exclusive selling agent, shall cooperate with the purchaser of the Leased Property in order to facilitate the transfers of the use, ownership and operation of the Leased Property by such purchaser after the date of the sale or transfer, including providing all books, reports and records regarding the maintenance, repair and ownership of the Leased Property and granting or assigning all licenses necessary for the operation of the Leased Property and cooperating in seeking and obtaining all necessary Governmental Actions. Lessee shall also, on the Return Date, vacate and cause any sublessee to vacate the Leased Property. As a further condition to the Lessee’s rights hereunder, the Lessee shall pay the total cost for the completion of all Alterations commenced after the Base Term Commencement Date and prior to the Return Date, and, subject to the Lessee’s right to use applicable insurance proceeds as set forth in Article XIII hereof, for the repair and rebuilding of the affected portions of the Leased Property suffering a Casualty after the Base Term Commencement Date. Such Alterations and all such repairs and rebuilding shall be completed prior to the Return Date. Unless the Lessee shall have exercised or been deemed to have exercised its Purchase Option or the Leased Property is to be sold to an independent purchaser, prior to the Return Date, the Lessee shall furnish to the Lessor and the independent purchaser hereunder a reasonably current preliminary environmental survey for the Leased Property dated no earlier than forty-five (45) days prior to the Return Date, from an environmental consultant satisfactory in the reasonable discretion of Lessor certifying that there exists no environmental

 

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contamination with respect to the Leased Property which would adversely affect the marketability, fair market value or useful life, as determined by the Appraisal, of the Leased Property or have an adverse effect on the Lessor and addressed to Lessor in form and substance satisfactory in the reasonable discretion of Lessor. The obligations of the Lessee under this Section 22.2 shall survive the expiration or termination of this Lease. Unless the Lessee shall have exercised or been deemed to have exercised its Purchase Option or the Leased Property is to be sold to an independent purchaser, the Lessor shall be entitled to perform such investigation, including obtaining reports of engineers and other experts as to the condition and state of repair and maintenance of the Improvements and the Site required by this Section 22.2 and as to the compliance of the Leased Property with Applicable Laws, including Environmental Laws, as it deems appropriate. Lessee, at its sole cost and expense (without right of reimbursement therefor out of gross sale proceeds but, subject to the Lessee’s right to use applicable insurance and condemnation proceeds as set forth in Article XIII hereof), shall cause the repair or other remediation of any discrepancies between the actual condition of the Improvements and the Site and the condition required under this Lease, such repair or remediation to be completed not later than the Return Date.

SECTION 22.3. Application of Sale Proceeds and Recourse Payments.

(a) On the Return Date, in connection with the Lessee’s exercise of the Return Option, the Lessee shall pay to the Lessor all Rent then due together with all other amounts due and payable by the Lessee to the Lessor or any Indemnitee. The Lessee also shall cause to be paid to the Lessor, from the aggregate Sale Proceeds (after application of gross sale proceeds to payment of any deed or transfer tax thereon not paid by the purchaser thereof and payment or reimbursement to the Lessee and/or the Lessor for any costs or expenses incurred by the Lessee and/or the Lessor in connection with the actions required under Sections 22.1 and 22.2, excluding any provision thereof which expressly specifies that the Lessee’s costs shall not be reimbursable out of gross sale proceeds), the aggregate outstanding Break Even Price as of the Return Date (as determined after the payment of all Rent due on such date and application of all other payments hereunder by Lessee in accordance with Section 22.3(c) hereof). If the Sale Proceeds exceed the Break Even Price as of the Return Date, the Lessee shall retain or be entitled to receive the portion of the Sale Proceeds in excess thereof. If the Sale Proceeds are less than the aggregate outstanding Break Even Price, the Lessee shall pay or shall cause to be paid to the Lessor, as Supplemental Rent, on the Return Date, in addition to the Sale Proceeds, an additional amount equal to the lesser of (x) the amount that the Break Even Price exceeds the Sale Proceeds or, (y) provided no Default or Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) has occurred and is continuing, the Recourse Deficiency Amount.

(b) The obligation of the Lessee to pay the amounts determined pursuant to Sections 22.3(a) and 22.4 shall be recourse obligations of the Lessee, and such payments by the Lessee shall not limit any other obligation of the Lessee under the Operative Documents, including pursuant to Article VII of the Participation Agreement.

(c) If on any date the Lessor shall receive any amounts that constitute payment of the Recourse Deficiency Amount and any Sale Proceeds following Lessee’s election to return or

 

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deemed election to have returned the Leased Property at the Return Date, the Lessor shall apply such amounts in the following order of priority:

first , to the Lessor, so much of such amount as is required to reimburse the Lessor for any fees, costs, expenses, Taxes or other loss incurred by it (to the extent not previously reimbursed);

second , to the Lessor, so much of such amounts as are required to pay all expenses or fees incurred by the Lessor in connection therewith including Break Funding Amounts, if any;

third , to the Lessor, so much of such amount as is required to pay all accrued Yield thereon;

fourth , to the Lessor, so much of such amounts as are required to pay in full the outstanding amount of the Lease Balance;

fifth , to the Lessor, so much of such amounts as are required to pay all outstanding obligations of Lessee pursuant to the Operative Documents including all indemnities due and payable; and

sixth , to Lessee, the balance of such amount, if any.

SECTION 22.4. Failure to Sell Leased Property.

(a) If the Leased Property shall not have been sold on or prior to the Return Date, in accordance with and subject to the provisions of this Article XXII, then the Lessee and the Lessor hereby agree as follows:

(i) the Lessee shall pay or shall cause to be paid to the Lessor, as Supplemental Rent, on the Return Date, in addition to the Sale Proceeds, an amount equal to the Recourse Deficiency Amount plus all other Rent then due under this Lease and the other Operative Documents or, in the event a Default or Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) shall have occurred and be continuing on such date, the Break Even Price and, in the case where the Break Even Price is paid, the Lessor shall convey to the Lessee or its designee the Leased Property in accordance with Section 23.11; and

(ii) at the option of the Lessor, if the Lessee has not paid the Break Even Price as set forth in Section 22.4(a)(i) above, the Lessee shall be required to continue using commercially reasonable efforts as non-exclusive agent for the Lessor to sell the Leased Property in accordance with Sections 22.1 and 22.2 for the period (the “ Extended Remarketing Period ”) commencing on the Return Date, and ending on the earliest of (w) the date occurring twenty-fourth (24 th ) months following the Return Date, (x) the sale of the Leased Property in accordance with the provisions of Sections 22.1 and 22.2 or such earlier date as the Lessor has received payment in full of the Break Even Amount, (y) the delivery of a written notice from the Lessor to the Lessee at any time terminating this

 

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Lease, which notice shall indicate that such termination is being made pursuant to this Section 22.4(a)(ii) and the date such termination shall be effective, and (z) the delivery of a written notice from the Lessee to the Lessor pursuant to which the Lessee notifies the Lessor of its election to terminate the Extended Remarketing Period. The notice given by the Lessee pursuant to Section 22.4(a)(ii)(z) shall indicate that it is being made pursuant to Section 22.4(a)(ii)(z) and shall set forth the date of termination of the Extended Remarketing Period; provided, however, in no event shall such effective date occur prior to the twenty-fourth (24 th ) month following the Return Date. On the last day of the Extended Remarketing Period, if the Leased Property has not been sold during the Extended Remarketing Period in accordance with Section 22.2, the Lessee shall also make the payments required under Section 22.4(a), to the extent not already paid under such Section. Nothing in this Section 22.4(a)(ii) shall adversely affect any other rights the Lessor may have to terminate this Lease pursuant to any other Section of this Lease or the Lessor’s right to pursue any remedy hereunder as a result of an Event of Default arising as a result of the Lessee’s failure to comply with the requirements set forth herein including pursuant to Article XVII or the Lessee’s obligation to pay amounts arising under Article VII of the Participation Agreement.

(b) Following the expiration of the Extended Remarketing Period (or, if not so extended by Lessor, following the Return Date) and the absence of any sale of the Leased Property, the Lessor and Lessee will use commercially reasonable efforts to agree upon the Fair Market Value of the Leased Property. If the Lessor and Lessee are unable to agree upon the Fair Market Value of the Leased Property, Lessor shall order a valuation of the Fair Market Value of the Leased Property. Promptly after receipt of such valuation which establishes the Fair Market Value of Leased Property, Lessor shall pay to Lessee an amount equal to the lesser of (A) the Recourse Deficiency Amount paid by the Lessee in accordance with the Section 22.4(a)(i) and (B) the amount by which the Fair Market Value of the Leased Property exceeds the remaining Break Even Price, less any Force Majeure Losses (the lower of (A) and (B) being the “ Expiration True-Up ”).

(c) The Lessor may sell or lease the Leased Property and the Lessor’s other interest in and to the Leased Property to any third party at such reasonable times and for such amounts as the Lessor deems commercially reasonable and appropriate in order to maximize the Lessor’s opportunity to recover the Lease Balance. If the Lessee returns the Leased Property to the Lessor in accordance with this Section 22.4 and, following the expiration of the Extended Remarketing Period, the Lessor subsequently sells the Leased Property for cash Sale Proceeds, Sale Proceeds shall be applied by the Lessor in the following order of priority:

(i) first , to the Lessor, Sale Proceeds shall be applied to any fees, costs, expenses, Taxes or other loss incurred by it (to the extent not previously reimbursed);

(ii) second , to the Lessor, Sale Proceeds shall be applied to the Lease Balance until the Lease Balance (excluding Force Majeure Losses, if any) is paid in full ( provided that , all costs and expenses arising from or related to the Leased Property which accrue after the later of the Return Date and the date the Lessee ceases to occupy the Leased Property shall be excluded from the Lease Balance for purposes of this Section 22.4(c)(ii));

 

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(iii) third , to the Lessee, Sale Proceeds shall be applied to the Recourse Deficiency Amount ( less the Expiration True-Up), if any, to the extent such amounts were paid by the Lessor to the Lessee in accordance with Section 22.4(b);

(iv) fourth , to the Lessor, Sale Proceeds shall be applied to Force Majeure Losses and, to the extent not previously paid to the Lessor pursuant to clause (i) or clause (ii) above, to any other amounts payable to the Lessor pursuant to any expense reimbursement or indemnification by the Lessee pursuant to the provisions of the Operative Documents;

(v) fifth , to the Lessor, Sale Proceeds shall be applied to any costs or expenses excluded from the Lease Balance as a result of the proviso in Section 22.4(c)(ii) above;

(vi) sixth , to the Lessor, Sale Proceeds shall be applied to all other amounts, if any, payable by the Lessee to the Lessor under the Operative Documents, to the extent not previously paid to the Lessor pursuant to clauses (i), (ii), (iv) or (v) above; and

(vii) seventh , to the Lessee, the balance, if any, of any Sale Proceeds shall be distributed to, or as directed by, the Lessee.

(d) The Lessor’s appointment of the Lessee as the Lessor’s non-exclusive agent to use commercially reasonable efforts to obtain the highest all-cash price for the purchase of the Leased Property and the Lessor’s interest in the Leased Property shall not restrict the Lessor’s right to market or lease the Leased Property and the Lessor’s interest in the Leased Property or to retain one or more sales agents or brokers (with the costs and expenses thereof being paid out of the Sale Proceeds, as provided in Sections 22.1(a) and 22.3(a) hereof).

(e) the Lessor reserves all rights under this Lease and the other Operative Documents arising out of the Lessee’s breach of any provisions of this Lease (including this Article XXII), whether occurring prior to, on or after the Return Date, including the Lessee’s breach of any of its obligations under this Article XXII, including the right to sue the Lessee for damages.

(f) To the greatest extent permitted by Applicable Law, the Lessee hereby unconditionally and irrevocably waives, and releases the Lessor from, any right to require the Lessor at any time prior to the Return Date or the expiration of the Extended Remarketing Period, as applicable, to market the Leased Property and the Lessor’s other interest in and to the Leased Property at all or for any minimum purchase price or on any particular terms and conditions, the Lessee hereby agrees that if the Lessee shall elect or shall be deemed to have elected the Return Option, its ability to sell the Leased Property and the Lessor’s other interest in and to the Leased Property on or prior to the Return Date, and to cause any Person to submit a bid to the Lessor pursuant to Section 22.1 shall constitute full and complete protection of the Lessee’s interest hereunder.

(g) During the period following Lessee’s exercise of the Return Option, the obligation of Lessee to pay Rent with respect to the Leased Property (including the installment of Rent due on the Return Date) shall continue undiminished; provided that such amounts subsequent to the Return Date (assuming the Lessee has returned the property to the Lessor)

 

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shall accrue and be payable out of the Sale Proceeds of any sale in accordance with Section 22.4(c)(v).

SECTION 22.5. Surrender and Return.

(a) Upon the expiration or earlier termination of the Lease Term, and provided that Lessee, if so entitled, has not exercised its option to purchase the Leased Property, Lessee shall peaceably leave and surrender and return the Leased Property to Lessor in the same condition in which the Leased Property existed on the Closing Date and such subsequent date on which any Alterations that constitute part of the Improvements were constructed, except as completed, repaired, rebuilt, restored, altered or added to as required by or permitted by any provision of this Lease (ordinary wear and tear excepted). Lessee shall remove from the Leased Property on or prior to such expiration or earlier termination all property situated thereon which is not the property of Lessor and the Leased Property shall be broom clean and Lessee shall repair any damage caused by such removal. Property not so removed shall become the property of Lessor and Lessor may cause such property to be removed from the Leased Property and disposed of, and Lessee shall pay (without right of reimbursement out of gross sale proceeds) the reasonable cost of any such removal and disposition and of repairing any damage caused by such removal.

(b) Except for surrender upon the expiration or earlier termination of the Lease Term hereof, no surrender to Lessor of this Lease or of the Leased Property shall be valid or effective unless agreed to and accepted in writing by Lessor.

(c) Without limiting the generality of the foregoing, upon the surrender and return of the Leased Property to Lessor pursuant to this Section 22.5, the Leased Property shall be (w) capable of being immediately utilized by a third-party purchaser or third-party lessee without further inspection, repair, replacement, alterations or improvements, licenses, permits, or approvals, except for any of the foregoing required solely by virtue of the change in ownership (other than to Lessor), use or occupancy of the Leased Property, (x) in compliance with all Applicable Laws including any of the foregoing required by virtue of a change in ownership, use or occupancy of the Leased Property other than to or by Lessee, (y) subject to any Shared Use Agreement, Appurtenant Rights and Restrictions or other cross easement agreement as may be necessary to comply with Applicable Laws, to make any such property marketable and to increase the aggregate value of the Leased Property and the other Sites, and (z) free and clear of any Lien. Until the Leased Property has been surrendered and returned to Lessor in accordance with the provisions of this Section 22.5, Lessee shall continue to pay Lessor all Rent due hereunder.

(d) Lessee acknowledges and agrees that a breach of any of the provisions of this Section 22.5 may result in damages to Lessor that are difficult or impossible to ascertain and that may not be compensable at law. Accordingly, upon application to any court of equity having jurisdiction over the Leased Property or the Lessee, Lessor shall be entitled to a decree against Lessee requiring specific performance of the covenants of Lessee set forth in this Section 22.5.

(e) Upon the request of the Lessor, Lessee shall continue to maintain its insurance policies for the Leased Property, to the extent permitted by such policies, provided that Lessor pays or reimburses Lessee for the pro rata cost thereof.

 

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ARTICLE XXIII

MISCELLANEOUS

SECTION 23.1. Binding Effect; Successors and Assigns; Survival.

The terms and provisions of this Lease, and the respective rights and obligations hereunder of the Lessor and the Lessee shall be binding upon them and their respective successors, legal representatives and assigns (including, in the case of the Lessor, any Person to whom the Lessor may transfer the Leased Property or any interest therein in accordance with the provisions of the Operative Documents), and inure to their benefit and the benefit of their respective permitted successors, legal representatives and assigns (including, in the case of the Lessor, any Person to whom the Lessor may transfer the Leased Property or any interest therein in accordance with the provisions of the Operative Documents).

SECTION 23.2. Severability.

Any provision of this Lease that shall be prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction, and the Lessee shall remain liable to perform its obligations hereunder except to the extent of such unenforceability. To the extent permitted by Applicable Laws, the Lessee hereby waives any provision of law that renders any provision hereof prohibited or unenforceable in any respect.

SECTION 23.3. Notices.

Unless otherwise specified herein, all notices, requests, demands or other communications to or upon the respective parties hereto shall be in writing and shall be delivered and shall be deemed to have been given in accordance with Section 8.3 of the Participation Agreement.

SECTION 23.4. Amendment; Complete Agreements.

Neither this Lease or any other Operative Document nor any terms hereof or thereof may be amended, supplemented or modified except in accordance with the provisions of the Participation Agreement. This Lease, together with the other Operative Documents, is intended by the parties as a final expression of their agreement and as a complete and exclusive statement of the terms thereof, all negotiations, considerations and representations between the parties having been incorporated herein and therein. No course of prior dealings between the parties or their officers, employees, agents or Affiliates shall be relevant or admissible to supplement, explain, or vary any of the terms of this Lease or any other Operative Document. Acceptance of, or acquiescence in, a course of performance rendered under this or any prior agreement between the parties or their Affiliates shall not be relevant or admissible to determine the meaning of any of the terms of this Lease or any other Operative Document. No representations, undertakings, or agreements have been made or relied upon in the making of this Lease other than those specifically set forth in the Operative Documents.

 

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SECTION 23.5. Headings.

The Table of Contents and headings of the various Articles and Sections of this Lease are for convenience of reference only and shall not modify, define or limit any of the terms or provisions hereof.

SECTION 23.6. Original Executed Counterpart.

The single executed original of this Lease marked as Counterpart No. 1 shall be the “original executed counterpart” of this Lease. To the extent that this Lease constitutes chattel paper, as such term is defined in the Uniform Commercial Code as in effect in any applicable jurisdiction, no security interest in this Lease may be created through the transfer or possession of any counterpart other than the “ original executed counterpart .”

SECTION 23.7. Governing Law.

This Lease has been delivered in, and shall in all respects be governed by and construed in accordance with the laws of, the State of New York, without regard to conflicts of laws principles (except Section 5-1401 of the New York General Obligations Law), including all matters of construction, validity and performance, except as to matters relating to the perfection of the security interests hereunder and the exercise of rights and remedies with respect thereto, which shall be governed by and construed in accordance with the laws of the State of California.

SECTION 23.8. No Joint Venture.

Any intention to create a joint venture or partnership relation hereunder or pursuant to any other Operative Document between the Lessor and the Lessee is hereby expressly disclaimed.

SECTION 23.9. No Accord and Satisfaction.

The acceptance by the Lessor of any sums from the Lessee (whether as Basic Rent or otherwise) in amounts which are less than the amounts due and payable by the Lessee hereunder is not intended, nor shall be construed, to constitute an accord and satisfaction of any dispute between the Lessor and the Lessee regarding sums due and payable by the Lessee hereunder, unless the Lessor specifically deems it as such in writing.

SECTION 23.10. Survival.

The termination of this Lease pursuant to Section 18.1 shall in no event relieve the Lessee of its liabilities and obligations hereunder which accrued prior to such termination, all of which shall survive any such termination. The extension of any applicable statute of limitations by the Lessee, the Lessor or any other Indemnitee shall not affect such survival.

SECTION 23.11. Transfer of Leased Property.

Except as may be applicable under Article XXII, any transfer of the Leased Property pursuant to this Lease shall be at the Lessee’s expense. Upon receipt by the Lessor of payment

 

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in full of the Break Even Price pursuant to the applicable provision of this Lease, the Leased Property shall be transferred to the Lessee or any designee it may identify.

Any transfer of the Lessor’s interest in and to the Leased Property pursuant to this Lease shall be transferred on an “as is, where is, with all faults” basis, without covenants or warranties of title and without recourse, representation or warranty of any kind, other than with respect to the Lessor, the absence of Lessor Liens, and together with the due assumption by the Lessee (or its designee), of, and due release of the Lessor from, all obligations relating to the Leased Property. In connection with any transfer to an independent third party, the Lessee shall, or shall ensure that its designee shall, execute and deliver such documents, certificates and estoppels as may be required to facilitate the transfer of the Leased Property. Any provision in this Lease or other Operative Document to the contrary notwithstanding, no transfer of the Leased Property to the Lessee or to a third party buyer pursuant to the Return Option shall be made until the Lessor has received all Rent and other amounts then due and owing by the Lessee hereunder and under the other Operative Documents. At or subsequent to the transfer or return of all or any of the Leased Property to a third party buyer pursuant to the Return Option, the Lessee will provide the Lessor with such lien and title searches as the Lessor may reasonably request to demonstrate to the Lessor’s satisfaction that the Leased Property is subject to no liens other than Permitted Liens as described in clauses (a) or (b) of the definition thereof. Notwithstanding anything contained herein or in the other Operative Documents to the contrary, any obligation of the Lessor to transfer any assets to the Lessee shall be satisfied by a transfer of such assets to any designee selected by it.

SECTION 23.12. Enforcement of Certain Warranties.

Unless an Event of Default shall have occurred and be continuing, the Lessor authorizes the Lessee (directly or through agents), without assuming any responsibility for the existence of such warranty or the validity of the authorization granted hereunder at the Lessee’s expense, to assert, during the Lease Term, all of the Lessor’s rights (if any) under any applicable warranty and any other claim that the Lessee or the Lessor may have under the warranties provided in connection with the Improvements and the Lessor agrees to cooperate, at the Lessee’s expense, with the Lessee and its agents in asserting such rights. Any amount recovered by the Lessee under any such warranties shall be retained by or paid over to the Lessee, subject to Section 23.13.

SECTION 23.13. Security Interest in Funds.

As long as a Material Default or Event of Default shall have occurred and be continuing, any amount that would otherwise be payable to the Lessee under the Operative Documents shall be paid to or retained by the Lessor (including amounts to be paid to the Lessee pursuant to Article XIII or Section 23.12) as security for the performance by the Lessee in full of its obligations under this Lease and the other Operative Documents and, provided an Event of Default exists, it may be applied to the obligations of the Lessee hereunder and under the other Operative Documents and distributed pursuant to Section 18.2. At such time as no Material Default or Event of Default shall be continuing, such amounts, net of any amounts previously applied to the Lessee’s obligations hereunder or under any other Operative Documents, shall be paid to the Lessee. Any such amounts which are held pending payment to the Lessee or

 

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application hereunder shall be invested by the Lessor as directed from time to time in writing by the Lessee, and at the expense and risk of the Lessee, in Permitted Investments. Any gain (including interest received) realized as the result of any such investment (net of any fees, commissions and other expenses, if any, incurred in connection with such investment) shall be applied from time to time in the same manner as the principal invested. Lessor shall not be liable for any losses on such investments or for any failure to make any investment,

SECTION 23.14. Submission to Jurisdiction.

EACH OF THE LESSOR AND THE LESSEE IRREVOCABLY AND UNCONDITIONALLY:

(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS LEASE, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, AND APPELLATE COURTS FROM ANY THEREOF;

(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDINGS MAY BE BROUGHT TO SUCH COURTS, AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND AGREES NOT TO PLEAD OR CLAIM THE SAME;

(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS SET FORTH ON SCHEDULE II TO THE PARTICIPATION AGREEMENT OR AT SUCH OTHER ADDRESS OF WHICH THE OTHER PARTIES HERETO SHALL HAVE BEEN NOTIFIED PURSUANT TO SECTION 8.3 OF THE PARTICIPATION AGREEMENT; AND

(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION.

SECTION 23.15. Jury Trial.

EACH OF THE LESSOR AND THE LESSEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS LEASE OR ANY OTHER OPERATIVE DOCUMENT OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS LEASE OR ANY OTHER

 

40


OPERATIVE DOCUMENT AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.

SECTION 23.16. Payments.

All payments to be made by the Lessee hereunder shall be made to the Lessor in Dollars in immediately available and freely transferable funds at the place of payment, all such payments to be paid without setoff, counterclaim or reduction and without deduction for, and free from, any and all present or future taxes, levies, imposts, duties, fees, charges, deductions, withholding or liabilities with respect thereto or any restrictions or conditions of any nature. If the Lessee is required by law to make any deduction or withholding on account of any tax or other withholding or deduction from any sum payable by the undersigned hereunder, the Lessee shall pay any such tax or other withholding or deduction and shall pay such additional amount necessary to ensure that, after making any payment, deduction or withholding, the Lessor shall receive and retain (free of any liability in respect of any payment, deduction or withholding) a net sum equal to what it would have received and so retained hereunder had no such deduction, withholding or payment been required to have been made, which payment or withholding is made subject to the limitations set forth in Sections 7.2(a)(iii) and 7.4 of the Participation Agreement, reimbursement obligations of Indemnitees set forth in Sections 7.2(a)(iii), 7.2(e) and 7.2(f) of the Participation Agreement and other rights of Lessee set forth in Sections 7.2(b)(i), 7.2(e), 7.2(f) and 7.4 of the Participation Agreement.

[Signature Pages Follow]

 

41


IN WITNESS WHEREOF, the undersigned have each caused this Lease to be duly executed and delivered by their respective representations thereunto duly authorized as of the day and year first above written.

 

BTMU CAPITAL LEASING & FINANCE, INC.,

AS L ESSOR

By:  

/s/ Michael D. Doyle

Name:   Michael D. Doyle
Title:   President

[THIS IS COUNTERPART NO.      OF      ORIGINALLY

EXECUTED COUNTERPARTS]


LAM RESEARCH CORPORATION,
AS L ESSEE
By:  

/s/ Odette Go

Name:   Odette Go
Title:   Treasurer

[THIS IS COUNTERPART NO.      OF      ORIGINALLY

EXECUTED COUNTERPARTS]


Schedule A

Recourse Deficiency Amount Percentages

Recourse Deficiency Amount for Port 1: 83.6%.


Exhibit A

Description of Site

Real property in the City of Livermore, County of Alameda, State of California, described as follows:

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.

Exhibit 10.16

1 Portolo Avenue     

PLEDGE AGREEMENT

(Port 1)

BETWEEN

LAM RESEARCH CORPORATION

(“LRC”)

AND

BTMU CAPITAL LEASING & FINANCE, INC.

(“BTMUCLF”)

December 31, 2013


TABLE OF CONTENTS

 

                Page  

1.

 

DEFINITIONS AND INTERPRETATION

     2   
  (A)     

Definitions

     2   
  (B)     

Rules of Interpretation

     8   
  (C)     

Attachments

     8   

2.

  PLEDGE AND GRANT OF SECURITY INTEREST      9   

3.

  PROVISIONS CONCERNING THE DEPOSIT TAKERS      9   
  (A)     

Deposit Taker Agreements

     9   
  (B)     

Qualification of Deposit Takers Generally

     10   
  (C)     

Substitutions for Disqualified Deposit Takers

     10   
  (D)     

Other Voluntary Substitutions of Deposit Takers

     10   
  (E)     

Delivery of Deposit Taker’s Agreements by LRC and BTMUCLF

     11   
  (F)     

Constructive Possession of Collateral

     11   
  (G)     

Attempted Setoff by Deposit Taker

     11   

4.

  DELIVERY AND MAINTENANCE OF COLLATERAL      11   
  (A)     

Delivery of Cash Collateral by LRC

     12   
  (B)     

Status of the Deposit Accounts Under the Reserve Requirement Regulations

     12   
  (C)     

Acknowledgment by LRC that Requirements of this Agreement are Commercially Reasonable

     12   

5.

  WITHDRAWAL OF COLLATERAL      12   
  (A)     

Withdrawal of Cash Collateral Upon the Occurrence and During the Continuance of an Event of Default

     12   
  (B)     

Withdrawal and Application of Cash Collateral to Reduce or Satisfy the Secured Obligations to BTMUCLF

     12   
  (C)     

Withdrawal and Return of Cash Collateral Following Satisfaction of all Secured Obligations

     13   
  (D)     

No Other Right to Require or Make Withdrawals

     13   
  (E)     

BTMUCLF’s Covenant Not to Make Unauthorized Withdrawals

     13   

6.

  REPRESENTATIONS AND COVENANTS OF LRC      13   
  (A)     

Representations of LRC

     13   
  (B)     

Covenants of LRC

     15   

7.

  AUTHORIZED ACTION BY BTMUCLF      16   

 

-i-


TABLE OF CONTENTS

(continued)

 

                Page  

8.

 

DEFAULT AND REMEDIES

     16   
  (A)     

Remedies

     16   
  (B)     

Recovery Not Limited

     18   

9.

 

MISCELLANEOUS

     19   
  (A)     

Payments by LRC to BTMUCLF

     19   
  (B)     

Payments by BTMUCLF to LRC

     19   
  (C)     

Cumulative Rights, etc.

     19   
  (D)     

Survival of Agreements

     20   
  (E)     

Other Liable Party

     20   
  (F)     

Termination

     20   

 

-ii-


PLEDGE AGREEMENT

(PORT 1)

This PLEDGE AGREEMENT (Port 1) (this “ Agreement ”), dated as of December 31, 2013 (the “ Effective Date ”), is made by and between BTMU CAPITAL LEASING & FINANCE, INC. (“ BTMUCLF ”), a Delaware corporation, and LAM RESEARCH CORPORATION (“ LRC ”), a Delaware corporation.

RECITALS

A. LRC, as lessee, and BTMUCLF, as lessor, are parties to that certain Amended and Restated Lease Agreement (Port 1), dated of even date herewith (as amended, supplemented or otherwise modified from time to time pursuant thereto, the “Lease” ), pursuant to which the Lessee has agreed to lease from the Lessor, and the Lessor has agreed to lease to the Lessee, the Leased Property described therein.

B. LRC and BTMUCLF are also parties to that certain Participation Agreement, dated of even date herewith (as amended, supplemented or otherwise modified, the “ Participation Agreement ”) pursuant to which BTMUCLF commits to advance funds for the acquisition of Site Port 1 and the Existing Improvements thereon and the Personal Property used thereon subject to the terms and conditions set forth therein.

C. By this Agreement, BTMUCLF and LRC desire to establish the terms and conditions upon which LRC is pledging cash collateral for its obligations to BTMUCLF under the Lease and the Participation Agreement.

AGREEMENTS

 

1. DEFINITIONS AND INTERPRETATION.

(A) Definitions . As provided in the recitals above, all capitalized terms used in this Agreement which are defined in the Participation Agreement and not otherwise defined herein shall have the same meanings herein as set forth in Appendix I to the Participation Agreement. All terms used in this Agreement which are defined in the UCC and not otherwise defined herein shall have the same meanings herein as set forth therein, except where the context otherwise requires. As used in this Agreement, the following terms shall have the following respective meanings:

Account Office ” means, with respect to any Deposit Account maintained by any Deposit Taker, the office of such Deposit Taker in California or New York at which such Deposit Account is maintained as specified in the applicable Deposit Taker’s Agreement.

BTMU ” means The Bank of Tokyo-Mitsubishi UFJ, Ltd.

BTMU Downgrade Event ” means BTMU or any successor of BTMU fails to maintain a debt rating of at least (i) BBB- (in the case of long term debt) by Standard and Poor’s Corporation (the “S&P Rating” ), and (ii) Baa3 (in the case of long term debt) by

 

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Moody’s Investor Service, Inc. (the “Moody Rating” ) and LRC shall elect to require that the Collateral held by BTMU to be transferred to an Eligible Deposit Taker pursuant to Section 3(C) hereof, provided that (i) such transferee shall satisfy the requirements of an Eligible Deposit Taker and (ii) LRC, Lessor and such replacement Eligible Deposit Taker have entered into a control agreement in form reasonably acceptable to all parties thereto. The parties hereto believe that it is improbable that the ratings systems used by Standard and Poor’s Corporation and by Moody’s Investor Service, Inc. will be discontinued or changed, but if such ratings systems are discontinued or changed, LRC shall be entitled to select and use a comparable ratings systems as a substitute for the S&P Rating or the Moody Rating, as the case may be, for purposes of determining the status of BTMU or such successor as an Eligible Deposit Taker.

BTMUCLF ” shall have the meaning given to that term in the introductory paragraph hereof.

Cash Collateral ” means (i) all money of LRC which LRC delivers to BTMUCLF or as directed by it for deposit in the Deposit Accounts maintained by the Deposit Takers pursuant to this Agreement, and (ii) all amounts on deposit in any of the Deposit Accounts from time to time, which have not been withdrawn or applied to Secured Obligations as provided in this Agreement.

Clearing System ” means the Depository Trust Company (“DTC”) and such other clearing or safekeeping system that may from time to time be used in connection with transactions relating to or the custody of any Securities, and any depository for any of the foregoing.

Collateral ” has the meaning indicated in Paragraph 2.

Control Agreement means any future blocked account control agreement that may be used by a Deposit Taker following any credit impairment as provided in the definition of Eligible Deposit Taker.

Default means any Event of Default and any default, event or condition which would, with the giving of any requisite notices and the passage of any requisite periods of time, constitute an Event of Default.

“Deposit Account” means a deposit account maintained by any Deposit Taker into which Cash Collateral has been or may in the future be deposited as provided in this Agreement.

“Deposit Taker” means, for BTMUCLF or any Participant, an Eligible Deposit Taker designated by it to act as the Deposit Taker for it under this Agreement. BTMUCLF has already designated BTMU as the Deposit Taker for BTMUCLF hereunder. Any Participant which is an Eligible Deposit Taker will be deemed to have designated itself to act as the Deposit Taker for it, unless some other designation is expressly set forth in this Agreement. Any Participant which is not an Eligible Deposit Taker will be expected to designate BTMU or, to the extent BTMU is not an Eligible Deposit Taker, another Person

 

3


which is an Eligible Deposit Taker (as reasonably approved by LRC) prior to any delivery of Cash Collateral by LRC pursuant to this Agreement. It is also understood, however, that each of BTMUCLF and any Participants, for itself only, may from time to time designate another Eligible Deposit Taker (as reasonably approved by LRC) as provided in subparagraphs 3(C) and 3(D) below.

“Deposit Taker Prerequisites” means, with respect to any Deposit Taker: (1) the requirement that such Deposit Taker establish a Deposit Account and provide to LRC and BTMUCLF the account number and other information regarding such Deposit Account which they must have to complete and submit a Deposit Taker’s Agreement covering such Deposit Account; and (2) the requirement that such Deposit Taker accept, execute and return a Deposit Taker’s Agreement covering each Deposit Account to be maintained by such Deposit Taker. It is understood that any Deposit Taker’s refusal or failure to satisfy the Deposit Taker Prerequisites will cause it to be a Disqualified Deposit Taker.

“Deposit Taker’s Agreement” means a completed Deposit Agreement in the form attached as Exhibit A , which specifically identifies a Deposit Account in which a Deposit Taker shall hold Cash Collateral delivered to it pursuant to this Agreement.

“Disqualified Deposit Taker” means any Person that BTMUCLF or any Participant has designated as a Deposit Taker, but that has not satisfied or no longer satisfies the following requirements:

(a) With respect to each Deposit Account in which such Person holds or will hold Collateral delivered to it pursuant to this Agreement, such Person must have received from BTMUCLF and LRC an executed Deposit Taker’s Agreement which specifically identifies such Deposit Account and which designates, at such Person’s election, an Account Office with respect to such Deposit Account in New York or California.

(b) Such Person must have executed and returned to BTMUCLF a Deposit Taker’s Agreement with respect to each such Deposit Account and must have complied with its Deposit Taker’s Agreements, and the representations set forth therein with respect to such Person must continue to be true and correct (except that such Person will not become a Disqualified Deposit Taker because of its failure to comply with its Deposit Taker’s Agreement, or because any such representation does not continue to be true and correct, if such failure is cured and all such representations are made true and correct in all material respects before the earlier of (i) thirty days after the Deposit Taker is notified thereof, and (ii) any date upon which BTMUCLF’s security interest in any Collateral maintained or held by such Deposit Taker is not a Qualified Pledge by reason of such failure to comply or such representation not being true and correct). Such Person must have complied in all material respects with the provisions in this Agreement applicable to Deposit Takers.

 

4


(c) Such Person must be an Eligible Deposit Taker.

“Eligible Deposit Taker” means:

(1) (a) BTMU or any successor of BTMU, acting through any branch, office or agency in New York or California that can lawfully maintain a Deposit Account as a Deposit Taker hereunder so long as no BTMU Downgrade Event shall occur or (b) Union Bank, N.A. or any successor of Union Bank, N.A., acting through any branch, office or agency in New York or California that can lawfully maintain a Deposit Account as a Deposit Taker hereunder so long as no Union Bank Downgrade Event shall occur;

(2) any Participant or Affiliate of a Participant that is (a) a commercial bank, organized under the laws of the United States of America or a state thereof or under the laws of another country which is doing business in the United States of America, (b) authorized to maintain deposit accounts for others through Account Offices in New York or California (as specified in its Deposit Taker’s Agreement) so long as no Participant Downgrade Event shall occur; or

(3) such Person that (a) has been designated by BTMUCLF or a Participant to act as the Deposit Taker for it under this Agreement, (b) is one of the fifty largest (measured by total assets) U.S. banks, or one of the one hundred largest (measured by total assets) banks in the world, (c) is acting through any branch, office or agency in New York or California that can lawfully maintain a Deposit Account as a Deposit Taker hereunder, and (d) has a debt ratings of at least (i) A- (in the case of long term debt) and A-1 (in the case of short term debt) or the equivalent thereof by Standard and Poor’s Corporation (the “S&P Rating” ), and (ii) A3 (in the case of long term debt) and P-1 (in the case of short term debt) or the equivalent thereof by Moody’s Investor Service, Inc. (the “Moody Rating” ), the parties hereto believing that it is improbable that the ratings systems used by Standard and Poor’s Corporation and by Moody’s Investor Service, Inc. will be discontinued or changed, but if such ratings systems are discontinued or changed, LRC shall be entitled to select and use a comparable ratings systems as a substitute for the S&P Rating or the Moody Rating, as the case may be, for purposes of determining the status of any bank as an Eligible Deposit Taker.

If at any time a Deposit Taker fails to satisfy the requirements of this definition above, such Deposit Taker shall cease being an Eligible Deposit Taker and LRC may, at its option, require that the Collateral held by such ineligible Deposit Taker be transferred to an Eligible Deposit Taker, provided that (i) such Eligible Deposit Taker satisfies the requirements of this definition above and (ii) LRC, Lessor and such replacement Eligible Deposit Taker have entered into a control agreement in form reasonably acceptable to all parties thereto.

 

5


“Event of Default” means the occurrence of any of the following:

(a) an Event of Default as defined in the Lease;

(b) any failure by LRC to provide funds as and when required by subparagraph 4(A) of this Agreement or under the Deposit Taker’s Agreement, on the date due;

(c) the failure of the pledge or security interest contemplated herein in any Deposit Account or Cash Collateral to be a Qualified Pledge (regardless of the characterization of any Deposit Accounts or Cash Collateral as deposit accounts, instruments or general intangibles under the UCC); unless, within five days after LRC becomes aware of such failure, LRC both (1) notifies BTMUCLF of such failure, and (2) cures such failure;

(d) the failure of any representation herein by LRC to be true (other than a failure described in another clause of this definition of Event of Default) and LRC and LRC shall fail to cure the underlying facts causing such representation, warranty, certification or statement to be incorrect in all material respects for a period of ten (10) Business Days after the earlier of Actual Knowledge or notice thereof;

(e) the failure of any representation made by LRC in subparagraph 6(A)(1) to be true, if within fifteen days after LRC becomes aware of such failure, LRC does not (1) notify BTMUCLF of such failure, and (2) cure such failure; and

(f) the failure by LRC timely and properly to observe, keep or perform any covenant, agreement, warranty or condition herein required to be observed, kept or performed (other than a failure described in another clause of this definition of Event of Default), if diligent efforts are not being taken by LRC to cure such Default and such failure is not cured within thirty (30) days after the earlier of Actual Knowledge thereof by LRC or receipt of written notice thereof; provided, however, that if such failure is capable of cure but cannot be cured by payment of money or cannot be cured by diligent efforts within such thirty (30) day period but such diligent efforts shall be properly commenced within such thirty (30) day period and LRC is diligently pursuing, and shall continue to pursue diligently remedy of such failure, such cure period shall be extended for an additional period of time in excess of such cure period as may be necessary to cure, not to extend beyond the earlier to occur of (i) the Lease Expiration Date or (ii) one hundred and twenty (120) days after the earlier of Actual Knowledge thereof or written notice thereof having been given to LRC.

“Lien” means, with respect to any property or assets, any right or interest therein of a creditor to secure indebtedness or other obligations of any kind which is owed to him or any other arrangement with such creditor which provides for the payment of such indebtedness or obligations out of such property or assets or which allows him to have such indebtedness or obligations satisfied out of such property or assets prior to the general creditors of any owner thereof, including any lien, mortgage, security interest, pledge,

 

6


deposit, production payment, rights of a vendor under any title retention or conditional sale agreement or lease substantially equivalent thereto, tax lien, mechanic’s or materialman’s lien, or any other charge or encumbrance for security purposes, whether arising by law or agreement or otherwise, but excluding any right of setoff which arises without agreement in the ordinary course of business. “Lien” also means any filed financing statement, any registration with an issuer of uncertificated securities, or any other arrangement which would serve to perfect a Lien described in the preceding sentence, regardless of whether such financing statement is filed, such registration is made, or such arrangement is undertaken before or after such Lien exists.

Make Whole Amount means the sum of the following:

(1) the amount (if any) by which the Lease Balance exceeds any Recourse Deficiency Amount which was actually received by BTMUCLF on the Base Term Expiration Date in accordance with Articles XXI and XXII of the Lease, together with interest on such excess computed at the Overdue Rate for the period commencing on the Base Term Expiration Date and ending on the date of an Expiration True-Up; plus

(2) any unpaid Base Rent or other amounts due to BTMUCLF pursuant to the Lease or other Operative Documents (except pursuant to Other Lease Documents); plus

(3) BTMUCLF’s Transaction Costs; plus

(4) the amount, but not less than zero, by which (i) all Taxes, insurance premiums and other Claims of every kind suffered or incurred by BTMUCLF (whether or not reimbursed in whole or in part by another Person) with respect to the ownership, operation or maintenance of the Leased Property during the Extended Remarketing Period, exceeds (ii) any rents or other sums collected by BTMUCLF during such period from third parties as consideration for any lease or other contracts made by BTMUCLF that authorize the use and enjoyment of the Leased Property by such parties; together with interest on such excess computed at the Overdue Rate for each day prior to the Base Term Expiration Date.

“Other Liable Party” means any Person, other than LRC, who may now or may at any time hereafter be primarily or secondarily liable for any of the Secured Obligations or who may now or may at any time hereafter have granted to BTMUCLF a Lien against any of its assets to secure any Secured Obligations.

“Participant” means, with respect to the Lease, any Participation Holder as defined in Section 6.4 of the Participation Agreement.

“Participant Downgrade Event means Participant or any successor of Participant fails to maintain a debt rating of at least (i) BBB- (in the case of long term debt) by Standard and Poor’s Corporation (the “S&P Rating” ), and (ii) Baa3 (in the case of long term debt) by Moody’s Investor Service, Inc. (the “Moody Rating” ) and LRC shall elect to require that the Collateral held by Participant to be transferred to an Eligible Deposit Taker pursuant to Section 3(C) hereof, provided that (i) such transferee shall satisfy the requirements of an Eligible Deposit Taker and (ii) LRC, Lessor and such replacement Eligible Deposit Taker

 

7


have entered into a control agreement in form reasonably acceptable to all parties thereto. The parties hereto believe that it is improbable that the ratings systems used by Standard and Poor’s Corporation and by Moody’s Investor Service, Inc. will be discontinued or changed, but if such ratings systems are discontinued or changed, LRC shall be entitled to select and use a comparable ratings systems as a substitute for the S&P Rating or the Moody Rating, as the case may be, for purposes of determining the status of Participant or such successor as an Eligible Deposit Taker.

“Percentage” means with respect to each Participant and the Deposit Taker for such Participant, the percentage obtained by dividing (x) the amount of the outstanding Equity Investment assumed by such Participant pursuant to Section 6.4 of the Participation Agreement by (y) the aggregate amount of the Equity Investment of the Participants. Percentages may be adjusted from time to time as provided in the Participation Agreement or as provided in supplements thereto executed as provided in the Participation Agreement.

“Qualified Pledge” means a pledge or security interest that constitutes a valid, perfected, first priority pledge or security interest.

“Secured Obligations” means and includes all obligations of LRC under the Operative Documents (except with respect to the Other Lease Documents) including, without limitation, (i) LRC’s obligation to pay the Recourse Deficiency Amount as provided in Article XXII of the Lease, (ii) LRC’s obligation to pay the Break Even Price as the purchase price for the Leased Property pursuant to Sections 20.1, 20.2 or 21.1(a) of the Lease, and (iv) any damages incurred by BTMUCLF or other amounts due under the Operative Documents (except with respect to the Other Lease Documents) following an Event of Default including any rejection by LRC of the Lease or any other Operative Document (except with respect to the Other Lease Documents) in any bankruptcy, insolvency or similar proceeding.

“UCC means the Uniform Commercial Code as in effect in the State of New York from time to time, and the Uniform Commercial Code as in effect in any other jurisdiction which governs the perfection or non-perfection of the pledge of and security interests in the Collateral created by this Agreement.

(B) Rules of Interpretation. The rules of interpretation set forth in Appendix I to the Participation Agreement are hereby incorporated by reference.

(C) Attachments. All attachments to this Agreement are a part hereof for all purposes.

“Union Bank Downgrade Event means Union Bank, N.A. or any successor of Union Bank, N.A. fails to maintain a debt rating of at least (i) BBB- (in the case of long term debt) by Standard and Poor’s Corporation (the “S&P Rating” ), and (ii) Baa3 (in the case of long term debt) by Moody’s Investor Service, Inc. (the “Moody Rating” ) and LRC shall elect to require that the Collateral held by Union Bank, N.A. to be transferred to an Eligible Deposit Taker pursuant to Section 3(C) hereof, provided that (i) such transferee shall satisfy the requirements of an Eligible Deposit Taker and (ii) LRC, Lessor and such

 

8


replacement Eligible Deposit Taker have entered into a control agreement in form reasonably acceptable to all parties thereto. The parties hereto believe that it is improbable that the ratings systems used by Standard and Poor’s Corporation and by Moody’s Investor Service, Inc. will be discontinued or changed, but if such ratings systems are discontinued or changed, LRC shall be entitled to select and use a comparable ratings systems as a substitute for the S&P Rating or the Moody Rating, as the case may be, for purposes of determining the status of Union Bank, N.A. or such successor as an Eligible Deposit Taker.

 

2. PLEDGE AND GRANT OF SECURITY INTEREST.

As security for the Secured Obligations, LRC hereby pledges and assigns to BTMUCLF and grants to BTMUCLF a continuing security interest and lien in and against all right, title and interest of LRC in and to the following property, whether now or hereafter existing, whether tangible or intangible, whether presently owned or vested in or hereafter acquired by LRC and wherever the same may be located (collectively and severally, the “Collateral” ):

(a) all Cash Collateral and all Deposit Accounts; and all cash and other assets from time to time held in or on deposit in any Deposit Account and all general intangibles arising from or relating to any Deposit Account or such cash or other assets; and all documents, instruments and agreements evidencing the same; and all extensions, renewals, modifications and replacements of the foregoing; and any interest or other amounts payable in connection therewith; and

(b) all proceeds of the foregoing (including whatever is receivable or received when Collateral or proceeds is invested, sold, collected, exchanged, returned, substituted or otherwise disposed of, whether such disposition is voluntary or involuntary, including rights to payment and return premiums and insurance proceeds under insurance with respect to any Collateral, and all rights to payment with respect to any cause of action affecting or relating to the Collateral).

The pledge, assignment and grant of a security interest made by LRC hereunder is for security of the Secured Obligations only; the parties to this Agreement do not intend that LRC’s delivery or deposit of any Collateral, including the Cash Collateral, as herein provided will constitute an advance payment of any Secured Obligations or liquidated damages, nor do the parties intend that the Collateral increase the dollar amount of the Secured Obligations.

 

3. PROVISIONS CONCERNING THE DEPOSIT TAKERS.

(A) Deposit Taker Agreements . Prior to the Closing, LRC must (1) ask BTMU, as the designated Deposit Taker for BTMUCLF, and each Eligible Deposit Taker designated by any Participant to act as the Deposit Taker for it under this Agreement, to satisfy the Deposit Taker Prerequisites; and (2) execute and provide to BTMUCLF a completed Deposit Taker’s Agreement for BTMUCLF’s execution and delivery to each Deposit Taker. Promptly after receipt of a properly completed Deposit Taker’s Agreement executed by LRC and in form ready to be executed by BTMU or any other Eligible

 

9


Deposit Taker named therein, BTMUCLF must execute such Deposit Taker’s Agreement and deliver it to the appropriate Deposit Taker as necessary for the satisfaction of the Deposit Taker Prerequisites.

Without limiting the foregoing, it is understood that (i) BTMUCLF and any Participant may designate BTMU as its Deposit Taker, (ii) any Participant may designate itself or any of its Affiliates as its Deposit Taker so long as the Participant or its Affiliate, as the case may be, is an Eligible Deposit Taker, and (iii) as provided in both the preceding provisions of this subparagraph and in subparagraph 3(E), BTMUCLF and LRC must promptly upon request execute and deliver any properly completed Deposit Taker Agreement requested by BTMUCLF or any Participant to facilitate the designations of Deposit Takers contemplated by this Agreement. If any Participant has not already designated an Eligible Deposit Taker to act as Deposit Taker for it under this Agreement at any time when such a designation is required, then BTMUCLF may make the designation for such Participant; subject, however, to such Participant’s rights under subparagraphs 3(D) and 3(E).

(B) Qualification of Deposit Takers Generally . Notwithstanding anything herein to the contrary, BTMUCLF may decline to deposit or maintain Cash Collateral hereunder with any Disqualified Deposit Taker.

(C) Substitutions for Disqualified Deposit Takers .

(1) Upon learning that any Deposit Taker has become a Disqualified Deposit Taker, LRC or BTMUCLF may request that the party for whom such Disqualified Deposit Taker has been designated a Deposit Taker (i.e., BTMUCLF or the applicable Participant) (a) designate another Eligible Deposit Taker as its new, substitute Deposit Taker, and (b) direct the substitute to satisfy the Deposit Taker Prerequisites.

(2) Pending the designation of a substitute Deposit Taker as provided in this subparagraph 3(C) and its execution and delivery to BTMUCLF of an appropriate Deposit Taker’s Agreement, BTMUCLF may withdraw Collateral held by the Deposit Taker to be replaced and deposit such Collateral with other Deposit Takers. If at any time no Deposit Takers have been designated other than Disqualified Deposit Takers, then BTMUCLF must itself select a new Eligible Deposit Taker to act as a Deposit Taker for it and direct the new Eligible Deposit Taker to satisfy the Deposit Taker Prerequisites.

(3) If, following a BTMU Downgrade Event, BTMU subsequently maintains the S&P Rating and Moody Rating required by clauses (i) and (ii) of the definition of BTMU Downgrade Event, BTMUCLF may designate BTMU as its new, substitute Deposit Taker and to have Collateral previously withdrawn from BTMU promptly transferred to BTMU to be held in accordance herewith and the Deposit Taker’s Agreement (or a substitute Deposit Taker’s Agreement on the identical terms as that to which such Collateral was previously subject).

(D) Other Voluntary Substitutions of Deposit Takers . BTMUCLF may, and with the written approval of BTMUCLF (which approval will not be unreasonably

 

10


withheld) any Participant may, at any time designate for itself a new Deposit Taker (in replacement of any prior Deposit Taker acting for it hereunder); provided, the Person so designated is not be a Disqualified Taker.

(E) Delivery of Deposit Taker’s Agreements by LRC and BTMUCLF . To the extent required for the designation of a new Deposit Taker by BTMUCLF or any Participant pursuant to subparagraph 3(D), or to permit the substitution or replacement of a Deposit Taker for BTMUCLF or any Participant as provided in subparagraphs 3(C) and 3(D), LRC and BTMUCLF shall promptly execute and deliver any properly completed Deposit Taker’s Agreement requested by BTMUCLF or the applicable Participant.

(F) Constructive Possession of Collateral . The possession by a Deposit Taker of any money, instruments, chattel paper, financial assets or other property constituting Collateral or evidencing Collateral shall be deemed to be possession by BTMUCLF or a person designated by BTMUCLF, for purposes of perfecting the security interest granted to BTMUCLF hereunder pursuant to the UCC or other Applicable Law; and notifications to a Deposit Taker by other Persons holding any such property, and acknowledgments, receipts or confirmations from any such Persons delivered to a Deposit Taker, and control agreements made by any such Person with Deposit Taker with respect to any such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, or control agreements with, financial intermediaries, bailees or agents (as applicable) of such Deposit Taker for the benefit of BTMUCLF for the purposes of perfecting such security interests under Applicable Law.

However, nothing in this subparagraph will be construed to permit or authorize any replacement of Cash Collateral required by this Agreement with other types of Collateral or any substitution of other types of Collateral for Cash Collateral hereunder.

(G) Attempted Setoff by Deposit Taker . By delivery of a Deposit Taker’s Agreement, each Deposit Taker must agree not to setoff or attempt a setoff, without in each case first obtaining the prior written authorization of BTMUCLF (which BTMUCLF will not grant without the prior written consent of all Participants, if applicable), obligations owed to such Deposit Taker against any Collateral held by it from time to time. Nevertheless, LRC acknowledges and agrees (without limiting its right to recover any resulting damages from any Deposit Taker that violates such agreements) that BTMUCLF shall not be responsible for, or be deemed to have taken any action against LRC because of, any violation of such agreement by any Deposit Taker. Further, and without limiting the foregoing, as additional consideration for BTMUCLF’s accommodations to LRC, including BTMUCLF’s acceptance of the Collateral in lieu of other forms of security as collateral for the Secured Obligations, LRC hereby waives and covenants not to assert any defense or claim arising out of (i) the California antideficiency laws, including without limitation California Code of Civil Procedure Sections 580a, 580b, 580d and 726, and (ii) without limiting the generality of the foregoing, Walker v. Community Bank , 10 Cal. 3d 729, 111 Cal. Rptr. 897, 518 P.2d 329 (1974), Security Pacific Nat’l Bank v. Wozab , 51 Cal. 3d 991, 275 Cal. Rptr. 201, 800 P.2d 557 (1990), and similar cases, to the extent such claim arises out of or relates to the exercise of set off rights by any Deposit Taker.

 

4. DELIVERY AND MAINTENANCE OF COLLATERAL.

 

11


(A) Delivery of Cash Collateral by LRC . On the Base Term Commencement Date as a condition precedent thereto under the Participation Agreement, LRC must deliver or cause to be delivered to Deposit Takers for deposit directly into the Deposit Accounts, in either case subject to the pledge and security interest created hereby, funds as Cash Collateral then needed (if any) in an amount equal to the Lease Balance (including any Advances or other amounts added to the Lease Balance on that date as provided in the Participation Agreement).

(B) Status of the Deposit Accounts Under the Reserve Requirement Regulations . Each Deposit Taker shall be permitted to structure the Deposit Account maintained by it as a nonpersonal time deposit under 12 C.F.R., Part II, Chapter 204 (commonly known as “Regulation D”). Accordingly, any Deposit Taker may require at least seven days advance notice of any withdrawal or transfer of funds from the Deposit Account maintained by it and, to the extent LRC has the right to request withdrawals therefrom, may limit the number of withdrawals or transfers from such Deposit Account to no more than six in any calendar month, notwithstanding anything to the contrary herein or in any deposit agreement that LRC and such Deposit Taker may enter into with respect to such Deposit Account. As necessary to satisfy the seven days notice requirement with respect to withdrawals by BTMUCLF when required by LRC pursuant to the provisions below, BTMUCLF shall notify the affected Deposit Takers promptly after receipt of any notice from LRC described in subparagraph 5(B).

(C) Acknowledgment by LRC that Requirements of this Agreement are Commercially Reasonable . LRC acknowledges and agrees that the requirements set forth herein concerning receipt, deposit, withdrawal, allocation, application and distribution of Cash Collateral by BTMUCLF, including the requirements and time periods set forth in the Paragraph 5, are commercially reasonable.

 

5. WITHDRAWAL OF COLLATERAL.

(A) Withdrawal of Cash Collateral Upon the Occurrence and During the Continuance of an Event of Default . Upon the occurrence and during the continuance of an Event of Default, without any instruction or request of LRC, BTMUCLF may withdraw and retain any Cash Collateral held by any Deposit Taker (which retention by BTMUCLF shall be free and clear of all liens and security interests hereunder and any rights of LRC thereto shall be released, terminated and waived without further action) as a payment on behalf of LRC of any amounts then due from LRC under Article XVIII of the Lease. To the extent BTMUCLF has exercised its rights and remedies thereunder and has indefeasibly satisfied the Secured Obligations in full in accordance with Article XVIII of the Lease, LRC may require BTMUCLF to withdraw and promptly pay to LRC any Cash Collateral still held by any Deposit Taker.

(B) Withdrawal and Application of Cash Collateral to Reduce or Satisfy the Secured Obligations to BTMUCLF . Except following the occurrence and during the continuance of an Event of Default, to satisfy the Secured Obligations in full, LRC may require BTMUCLF to withdraw and retain any Cash Collateral held by any Deposit Taker on the Base Term Expiration Date (which retention by BTMUCLF shall be free and clear of all liens and security interests hereunder and any rights of LRC thereto shall be released,

 

12


terminated and waived without further action) as a payment on behalf of LRC of any amounts then due from LRC under Articles XX, XXI or XXII of the Lease; provided, that by a notice in the form of Exhibit B , LRC must have notified BTMUCLF of the required withdrawal and payment to BTMUCLF at least ten days prior to the date upon which it is to occur and when no Event of Default (under and as defined in this Agreement or as defined in the Lease) has occurred and is continuing. To the extent LRC has validly exercised the Return Option under the Lease and the Recourse Deficiency Amount has been indefeasibly satisfied in full on the Base Term Expiration Date in accordance with Articles XXI and XXII of the Lease, LRC may require BTMUCLF to withdraw and pay to LRC Cash Collateral held by any Deposit Taker on the Base Term Expiration Date in an amount not to exceed the Make Whole Amount and when no Default or Event of Default (under and as defined in this Agreement or as defined in the Lease) has occurred and is continuing.

(C) Withdrawal and Return of Cash Collateral Following Satisfaction of all Secured Obligations . Following the Base Term Expiration Date, when all Secured Obligations have been indefeasibly satisfied in full, any remaining Cash Collateral that has not been withdrawn and applied against the Secured Obligations shall revert to LRC as provided in subparagraph 9(F), whereupon LRC may require BTMUCLF to withdraw such remaining Cash Collateral then maintained pursuant to this Agreement and promptly transfer such remaining Cash Collateral to LRC.

(D) No Other Right to Require or Make Withdrawals . LRC may not withdraw or require any withdrawal of Collateral from any account or deposit account pledged hereunder, including the Deposit Accounts, except as expressly provided in the preceding subparagraphs of this Paragraph 5. LRC acknowledges that it will have no check writing privileges or line of credit or credit card privileges under any such pledged account or deposit account, including the Deposit Accounts.

(E) BTMUCLF’s Covenant Not to Make Unauthorized Withdrawals . Notwithstanding provisions of any Control Agreement or of any Deposit Taker’s Agreement which may state that BTMUCLF is entitled to withdraw Collateral held by any Deposit Taker without any prior consent or authorization of LRC, BTMUCLF covenants to LRC (as between BTMUCLF and LRC) that BTMUCLF will not exercise such rights to withdraw Collateral except (1) as required or permitted by this Paragraph 5, (2) in the exercise of BTMUCLF’s rights or remedies as otherwise herein provided, or (3) as may from time to time be requested or approved by LRC.

 

6. REPRESENTATIONS AND COVENANTS OF LRC.

(A) Representations of LRC . LRC represents to BTMUCLF as follows:

(1) LRC is the legal and beneficial owner of the Collateral (or, in the case of after-acquired Collateral, at the time LRC acquires rights in the Collateral, will be the legal and beneficial owner thereof), subject to the pledge and rights hereby granted in favor of BTMUCLF. No other Person has (or, in the case of after-acquired Collateral, at the time LRC acquires rights therein, will have) any right, title, claim or interest (by way of Lien, purchase option or otherwise) in, against or to the Collateral, except for rights created hereunder. The Collateral shall

 

13


be deposited with the Deposit Taker hereunder and under the Deposit Taker’s Agreement free and clear of any Lien.

(2) BTMUCLF has (or in the case of after-acquired Collateral, at the time LRC acquires rights therein, will have) a valid, first priority, perfected pledge of and security interest in the Collateral, regardless of the characterization of the Collateral as deposit accounts, instruments or general intangibles under the UCC, but assuming that the representations of each Deposit Taker in its Deposit Taker’s Agreement are true.

(3) LRC has delivered to BTMUCLF, together with all necessary stock powers, endorsements, assignments and other necessary instruments of transfer, the originals of all documents, instruments and agreements evidencing the Collateral in order to comply with Section 2 of the Initial Control Agreement.

(4) Neither the ownership or the intended use of the Collateral by LRC, nor the pledge of Collateral or the grant of the security interest by LRC to BTMUCLF herein, nor the exercise by BTMUCLF of its rights or remedies hereunder, will (i) violate any provision of (a) Applicable Law, (b) the articles or certificate of incorporation, charter or bylaws of LRC, or (c) any agreement, judgment, license, order or permit applicable to or binding upon LRC or its properties, or (ii) result in or require the creation of any Lien, charge or encumbrance upon any assets or properties of LRC except as expressly contemplated in this Agreement. Except as expressly contemplated in this Agreement, no consent, approval, authorization or order of, and no notice to or filing with any court, governmental authority or third party is required in connection with the pledge or grant by LRC of the security interest contemplated herein or the exercise by BTMUCLF of its rights and remedies hereunder.

 

14


(B) Covenants of LRC . LRC hereby agrees as follows:

(1) LRC, at LRC’s expense, shall promptly procure, execute and deliver to BTMUCLF all documents, instruments and agreements and perform all acts which are necessary or desirable, or which BTMUCLF may request, to establish, maintain, preserve, protect and perfect the Collateral, the pledge thereof to BTMUCLF or the security interest granted to BTMUCLF therein and the first priority of such pledge or security interest or to enable BTMUCLF to exercise and enforce its rights and remedies hereunder with respect to any Collateral. Without limiting the generality of the preceding sentence, LRC shall (A) procure, execute and deliver to BTMUCLF all stock powers, endorsements, assignments, fmancing statements and other instruments of transfer requested by BTMUCLF, (B) deliver to BTMUCLF promptly upon receipt all originals of Collateral consisting of instruments, documents and chattel paper, and (C) cause the security interest of BTMUCLF in any Collateral consisting of securities to be recorded or registered in the books of any financial intermediary or Clearing System requested by BTMUCLF.

(2) When Applicable Law provides more than one method of perfection of BTMUCLF’s security interest in the Collateral, BTMUCLF may choose the method(s) to be used. LRC hereby authorizes BTMUCLF to file any financing statements or financing statement amendment covering all or any portion of the Collateral or relating to the security interest created herein.

(3) LRC shall not use or authorize or consent to any use of any Collateral in violation of any provision of this Agreement or any other Operative Document or any Applicable Law.

(4) LRC shall pay promptly when due all Taxes and other governmental charges, Liens and other charges now or hereafter imposed upon, relating to or affecting any Collateral or arising on any interest or earnings thereon.

(5) LRC shall appear in and defend, on behalf of BTMUCLF, any action or proceeding which may affect LRC’s title to or BTMUCLF’s interest in the Collateral.

(6) Subject to the express rights of LRC under Paragraph 5, LRC shall not surrender or lose possession of (other than to BTMUCLF or a Deposit Taker pursuant hereto), encumber, lease, rent, option, or otherwise dispose of or transfer any Collateral or right or interest therein, and LRC shall keep the Collateral free of all Liens (other than Liens granted under this Agreement). The rights granted to BTMUCLF pursuant to this Agreement are in addition to the rights granted to BTMUCLF in any Control Agreement or other custody, investment management, trust, account control agreement or similar agreement. In case of conflict between the provisions of this Agreement and of any other such agreement, the provisions of this Agreement will prevail.

 

15


(7) LRC will not take any action which would in any manner impair the value or enforceability of BTMUCLF’s pledge of or security interest in any Collateral, nor will LRC fail to take any action which is required to prevent (and which LRC knows is required to prevent) an impairment of the value or enforceability of BTMUCLF’s pledge of or security interest in any Collateral.

(8) Without limiting the foregoing, within five days after LRC becomes aware of any failure of the pledge or security interest contemplated herein in any Deposit Account or Cash Collateral to be a valid, perfected, first priority pledge or security interest (regardless of the characterization thereof as deposit accounts, securities accounts, instruments or general intangibles under the UCC), LRC shall notify BTMUCLF of such failure.

 

7. AUTHORIZED ACTION BY BTMUCLF.

LRC hereby irrevocably appoints BTMUCLF as LRC’s attorney-in-fact for the purpose of authorizing BTMUCLF to perform (but BTMUCLF shall not be obligated to and shall incur no liability to LRC or any third party for failure to perform) any act which LRC is obligated by this Agreement to perform, and to exercise, consistent with the other provisions of this Agreement, such rights and powers as LRC might exercise with respect to the Collateral during any period in which a Default has occurred and is continuing, including the right to (a) collect by legal proceedings or otherwise and endorse, receive and receipt for all dividends, interest, payments, proceeds and other sums and property now or hereafter payable on or on account of the Collateral; (b) enter into any extension, reorganization, deposit, merger, consolidation or other agreement pertaining to, or deposit, surrender, accept, hold or apply other property in exchange for the Collateral; (c) insure, process, preserve and enforce the Collateral; (d) make any compromise or settlement, and take any action it deems advisable, with respect to the Collateral; (e) pay any indebtedness of LRC relating to the Collateral; and (f) execute UCC financing statements and other documents, instruments and agreements required hereunder. Such appointment is coupled with an interest and shall be valid and binding on LRC and its successor and assigns.

 

8. DEFAULT AND REMEDIES.

(A) Remedies . In addition to all other rights and remedies granted to BTMUCLF by this Agreement and other Operative Documents (except under Other Lease Documents) or by the UCC and other Applicable Laws, BTMUCLF may, upon the occurrence and during the continuance of any Event of Default (as defined herein and in the Lease), exercise any one or more of the following rights and remedies, all of which will be in furtherance of its rights as a secured party under the UCC:

(1) BTMUCLF may collect, receive, appropriate or realize upon the Collateral or otherwise foreclose or enforce the pledge of or security interests in any or all Collateral in any manner permitted by Applicable Law or in this Agreement.

(2) BTMUCLF may notify any Deposit Taker to pay all or any portion of Cash Collateral held by such Deposit Taker directly to BTMUCLF up to an amount equal to the then outstanding Secured Obligations. BTMUCLF shall apply

 

16


any Cash Collateral or proceeds of other Collateral received by BTMUCLF after the occurrence of such an Event of Default to the Secured Obligations in any order BTMUCLF believes to be in its best interest. If any such Cash Collateral or proceeds received by BTMUCLF remains after all Secured Obligations have been paid in full, BTMUCLF will deliver or direct the Deposit Takers to deliver the same to LRC or other Persons entitled thereto.

Without limiting the foregoing, when any such Event of Default has occurred and is continuing, BTMUCLF may, without notice or demand, sell, redeem, offset, setoff, debit, charge or otherwise dispose of or liquidate into cash any Collateral and/or to apply it or the proceeds thereof to repay any or all of the Secured Obligations in such order as BTMUCLF believes to be in its best interest, regardless of whether any such Secured Obligations are contingent, unliquidated or unmatured or whether BTMUCLF has any other recourse to LRC or any Other Liable Party or any other collateral or assets (including the Property). Moreover, regardless of whether BTMUCLF commences any action to foreclose the lien and security interest granted in the Lease or the Memorandum of Lease (a “Property Foreclosure” ) before, after or contemporaneously with any action BTMUCLF may take under this Pledge Agreement to collect Cash Collateral or proceeds of other Collateral, and regardless of whether BTMUCLF actually receives proceeds of a Property Foreclosure before or after it receives Cash Collateral or proceeds of other Collateral, BTMUCLF will be entitled to apply Cash Collateral and proceeds of other Collateral to satisfy or reduce the Secured Obligations before applying the proceeds of a Property Foreclosure to other remaining obligations secured as described in the Lease and the Memo of Lease. Also, BTMUCLF may exercise its rights without regard to any premium or penalty from liquidation of any Collateral and without regard to LRC’s basis or holding period for any Collateral.

In connection with the exercise of its remedies under this Agreement, BTMUCLF may sell from its offices in Boston, Massachusetts, New York, New York or elsewhere, in one or more sales, at the price as BTMUCLF deems best, for cash or on credit or for other property, for immediate or future delivery, any item of the Collateral, at any broker’s board or at public or private sale, in any reasonable manner permissible under the UCC (except that, to the extent permissible under the UCC, LRC waives any requirements of the UCC) and BTMUCLF or anyone else may be the purchaser of the Collateral and hold it free from any claim or right including, without limitation, any equity of redemption of LRC, which right LRC expressly waives. BTMUCLF may in its sole discretion elect to conduct any sale (and related offers) of any Collateral in such a manner as to avoid the need for registration or qualification thereof under any Federal or state securities laws, that such conduct may include restrictions (including as to potential purchasers) and other requirements (such as purchaser representations) which may result in prices or other terms less favorable than those which might have been obtained through a public sale not subject to such restrictions and requirements and that any offer and sale so conducted shall be deemed to have been made in a commercially reasonable manner.

In connection with the exercise of its remedies, BTMUCLF may also, in its sole discretion, for its own benefit, acting either in its own name or in the name of LRC:

 

17


(i) hold any monies or proceeds representing the Collateral in a cash collateral account in U.S. dollars or other currency that BTMUCLF reasonably selects and invest such monies or proceeds on behalf of LRC;

(ii) convert any Collateral denominated in a currency other than U.S. dollars to U.S. dollars at the spot rate of exchange for the purchase of U.S. dollars with such other currency which is quoted by a branch or office of BTMUCLF’s Parent selected by BTMUCLF (or, if no such rate is quoted by BTMUCLF’s Parent on any relevant date, then at a rate estimated by BTMUCLF on the basis of other quoted spot rates) or another prevailing rate that BTMUCLF reasonably deems more appropriate; or

(iii) apply any portion of the Collateral, first, to pay or reimburse all costs and expenses of BTMUCLF and then to all or any portion of the Secured Obligations in such order as BTMUCLF may believe to be in its best interest.

In any event, LRC will pay to BTMUCLF upon demand all expenses (including reasonable, out-of-pocket fees, costs and expenses of counsel to BTMUCLF and any Participant) incurred by BTMUCLF in connection with the exercise of any of BTMUCLF’s rights or remedies under this Agreement.

Notwithstanding that BTMUCLF may continue to hold Collateral and regardless of the value of the Collateral, LRC will remain liable for the payment in full of any unpaid balance of the Secured Obligations.

In any case where notice of any sale or disposition of any Collateral is required, LRC hereby agrees that ten (10) days notice of such sale or disposition is reasonable.

(B) Recovery Not Limited . To the fullest extent permitted by Applicable Law, LRC waives any right to require that BTMUCLF proceed against any other Person, exhaust any Collateral or other security for the Secured Obligations, or to have any Other Liable Party joined with LRC in any suit arising out of the Secured Obligations or this Agreement, or pursue any other remedy in their power. LRC waives any and all notice of acceptance of this Agreement.

LRC further waives notice of the creation, modification, rearrangement, renewal or extension for any period of any of the Secured Obligations of any Other Liable Party from time to time and any defense arising by reason of any disability or other defense of any Other Liable Party or by reason of the cessation from any cause whatsoever of the liability of any Other Liable Party. Until all of the Secured Obligations shall have been paid in full, LRC shall have no right to subrogation, reimbursement, contribution or indemnity against any Other Liable Party and LRC waives the right to enforce any remedy which BTMUCLF has or may hereafter have against any Other Liable Party, and waives any benefit of and any right to participate in any other security whatsoever now or hereafter held by or on behalf of BTMUCLF. LRC authorizes BTMUCLF, without notice or demand and without any reservation of rights against LRC and without affecting LRC’s liability hereunder or on the Secured Obligations, from time to time to (a) take or hold any other property of any type

 

18


from any other Person as security for the Secured Obligations, and exchange, enforce, waive and release any or all of such other property, (b) after and during the continuance of any Event of Default (as defined herein or in the Lease), apply or require the application of the Collateral (in accordance with this Agreement) or such other property in any order they may determine and to direct the order or manner of sale thereof as they may determine, (c) renew, extend for any period, accelerate, modify, compromise, settle or release any of the obligations of any Other Liable Party with respect to any or all of the Secured Obligations or other security for the Secured Obligations, and (d) release or substitute any Other Liable Party.

 

9. MISCELLANEOUS.

(A) Payments by LRC to BTMUCLF . All payments and deliveries of funds required to be made by LRC to BTMUCLF hereunder shall be paid or delivered in immediately available funds by wire transfer to the Deposit Account in accordance with wiring instructions which will be provided by BTMUCLF to LRC. Time is of the essence as to all payments and deliveries of funds by LRC to BTMUCLF under this Agreement.

(B) Payments by BTMUCLF to LRC . All payments of Cash Collateral withdrawn by BTMUCLF from the Deposit Accounts and required to returned by BTMUCLF to LRC hereunder shall be paid or delivered in immediately available funds by wire transfer to:

 

Bank Name:

  

_______________________________

Bank Address:

  

_______________________________

ABA # (Domestic):

  

_______________________________

SWIFT ID (Inn):

  

_______________________________

Account Name:

  

_______________________________

Account Number:

  

_______________________________

Bank Contact:

  

_______________________________

   _______________________________
   _______________________________

Reference

  

_______________________________

or at such other place and in such other manner as LRC may designate in a notice sent to BTMUCLF. Time is of the essence as to all such payments by BTMUCLF to LRC.

(C) Cumulative Rights, etc. Except as herein expressly provided to the contrary, the rights, powers and remedies of BTMUCLF under this Agreement shall be in addition to all rights, powers and remedies given to them by virtue of any Applicable Law, any other Operative Document or any other agreement, all of which rights, powers, and remedies shall be cumulative and may be exercised successively or concurrently without impairing their respective rights hereunder. LRC waives any right to require BTMUCLF to proceed against any Person or to exhaust any Collateral or other collateral or security or to pursue any remedy in BTMUCLF’s power.

 

19


(D) Survival of Agreements . All representations and warranties of LRC herein, and all covenants and agreements herein shall survive the execution and delivery of this Agreement, the execution and delivery of any other Operative Documents and the creation of the Secured Obligations and continue until terminated or released as provided herein.

(E) Other Liable Party . Neither this Agreement nor the exercise by BTMUCLF or the failure of BTMUCLF to exercise any right, power or remedy conferred herein or by law shall be construed as relieving LRC or any Other Liable Party from liability on the Secured Obligations or any deficiency thereon. This Agreement shall continue irrespective of the fact that the liability of any Other Liable Party may have ceased or irrespective of the validity or enforceability of any other agreement evidencing or securing the Secured Obligations to which LRC or any Other Liable Party may be a party, and notwithstanding the reorganization, death, incapacity or bankruptcy of any Other Liable Party, or any other event or proceeding affecting any Other Liable Party.

(F) Termination . Following the Base Term Expiration Date, upon indefeasible satisfaction in full of all Secured Obligations (other than contingent indemnity obligations for which no Claim has been made or are not due and payable) and upon written request for the termination of this Agreement delivered by LRC to BTMUCLF, BTMUCLF will execute and deliver, at LRC’s expense, an acknowledgment that this Agreement and the pledge and security interest created hereby are terminated, whereupon all rights to any remaining Collateral that has not been applied against Secured Obligations in accordance with this Agreement shall revert to LRC.

[Signature pages to follow]

 

20


IN WITNESS WHEREOF, this Agreement is executed to be effective as of the date first written above.

 

BTMU CAPITAL LEASING & FINANCE, INC.,

a Delaware corporation

By:  

/s/ Michael D. Doyle

Name:   Michael D. Doyle
Title:   President


LAM RESEARCH CORPORATION,

a Delaware Corporation

By:  

/s/ Odette Go

Name:   Odette Go
Title:   Treasurer


Exhibit A

TO PLEDGE AGREEMENT

DEPOSIT AGREEMENT

(PORT 1)

Dated as of December 31, 2013

The Bank of Tokyo-Mitsubishi UFJ, Ltd.

Global Markets Division for the Americas

1251 Avenues of the Americas

New York, New York 10020-1104

Dear Ladies and Gentlemen:

LAM Research Corporation, a Delaware corporation ( “LRC” ), refers to that certain Pledge Agreement (Port 1), dated as of December 31, 2013 (as amended or otherwise modified from time to time, the “Pledge Agreement” ), between BTMU Capital Leasing & Finance, Inc. (“ BTMUCLF ”) and LRC. All capitalized terms used herein and not otherwise defined herein shall have the same meanings herein as set forth in the Pledge Agreement. All terms used in this Agreement which are defined in the UCC and not otherwise defined herein shall have the same meanings herein as set forth therein, except where the context otherwise requires.

This Deposit Agreement (this “ Agreement ”), is among The Bank of Tokyo-Mitsubishi UFJ, Ltd. (“ Deposit Taker ”), LRC and BTMUCLF and shall serve as instructions regarding the following deposit account established by LRC at the Deposit Taker (the “ Deposit Account ”):

 

Account
Type

    

Account
Office

    

Account/IMMS/WSS
Numbers

         

 

    

 

    

 

LRC has delivered to Deposit Taker for deposit initially in such Deposit Account, which may not necessarily bear any special title or which may be entitled: “LAM RESEARCH CORPORATION COLLATERAL ACCOUNT FOR THE BENEFIT OF BTMU CAPITAL LEASING & FINANCE, INC.” or such other title as may be acceptable to Deposit Taker the sum of U.S.$34,974,967.40 in immediately available funds and which may thereafter be held in (but are not necessarily limited to) the form of one or more time deposits, certificates of deposit, other deposits or instruments of any type which at all times shall be under the


dominion and control of the Deposit Taker (such funds, whether now or at any time hereafter on deposit with or payable or withdrawable from the Deposit Taker (whether from the Deposit Account or any other deposit account, or any time deposit, certificate of deposit, or any other deposit or instrument of any type)), together with any amounts or accruals subsequently added to or earned, including interest, by such funds and all additional funds hereafter deposited into the Deposit Account hereunder or otherwise or given in substitution for such funds, being referred to herein as the “ Deposited Funds ”). Any such Deposited Funds and any funds or deposits which at any time derive from, consist of or represent Deposited Funds (including, but not limited to, time deposits, certificates of deposit, other deposits or instruments of any type), all proceeds, income and profits thereon and therefrom, and the Deposit Account and any deposit account in which any of the foregoing is deposited or held, and all of LRC’s rights and interests therein and claims against Deposit Taker with respect thereto, are collectively referred to herein as, the “ Cash Collateral ”. Without limiting any of Deposit Taker’s other rights or remedies Deposit Taker shall have all the rights and remedies of a secured party under the Uniform Commercial Code and all other applicable law with respect to the Cash Collateral and each such deposit account, all of which LRC acknowledges is to be deemed a “deposit account” defined by the Uniform Commercial Code. LRC understands that Deposit Taker may combine the Deposited Funds and Cash Collateral with other funds and will not be required to keep them separate and identifiable and that the Deposited Funds and Cash Collateral may be invested, reinvested, held or otherwise utilized by the Deposit Taker without any direction of the Parties. If such commingling occurs, Deposit Taker may consider the Deposited Funds to consist at any time of any and all funds in any relevant account up to the amount required to be held by Deposit Taker pursuant hereto.

1. Lien . As security for immediate payment and performance when due of all of the Secured Obligations as defined in the Pledge Agreement owing by LRC, whensoever arising, whether now existing or hereafter incurred, of every kind and character, including, without limitation, arising or otherwise existing under or with respect to the Amended and Restated Lease Agreement (Port 1), dated as of December 31, 2013 (as amended or otherwise modified from time to time, the “Lease Agreement” ), between BTMUCLF and LRC and the Operative Documents (except with respect to the Other Lease Documents) (all such obligations, liabilities and indebtedness being referred to herein collectively as the “Secured Obligations” ), LRC hereby pledges and assigns to BTMUCLF and grants to BTMUCLF a continuing first priority security interest in the following (the “ Collateral ”): (i) the Deposit Account, (ii) the Cash Collateral, (iii) all Deposited Funds, (iv) any and all accounts to which the Deposited Funds or the proceeds thereof are credited, (v) all amounts, money and other property standing to the credit of any such accounts, together with any and all documents evidencing or constituting such amounts, money and other property, (vi) all instruments, investment property and the like in which such property is from time to time invested or reinvested and all interest, distributions, other income and the like payable with respect thereto, and (vii) all replacements, renewals, substitutions, products, profits and proceeds of the foregoing in whatever form. The parties hereto agree that this Agreement complies with Section 9-104(a)(2) of the New York Uniform Commercial Code. So long as this Agreement remains in full force and effect, LRC shall have no right to be paid or to draw upon, transfer or otherwise dispose of any of the Cash Collateral, and Deposit Taker shall have exclusive

 

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dominion and control of all Cash Collateral. Deposit Taker has and shall have “control”, as contemplated by Article 9 of the Uniform Commercial Code, including Section 9-104 thereof, of the Deposit Account, the Deposited Funds, the Cash Collateral and of any deposit account in which any Cash Collateral is deposited.

2. Duties . Deposit Taker agrees to take such action with respect to the Deposit Account as shall from time to time be specified in any writing purportedly from BTMUCLF as provided herein. LRC and BTMUCLF agree that: (a) Deposit Taker has no duty to monitor the balance of the Deposit Account; (b) BTMUCLF may at any time make withdrawals from the Deposit Account and take any and all actions with respect to the Deposit Account, and Deposit Taker is hereby authorized to honor any instructions with respect to the Deposit Account (including withdrawals therefrom) which purport to be from BTMUCLF (in each case without notifying or obtaining the consent of LRC); (c) Deposit Taker may, without further inquiry, rely on and act in accordance with any instructions it receives from (or which purport to be from) BTMUCLF, notwithstanding any conflicting or contrary instructions it may receive from LRC, and Deposit Taker shall have no liability to BTMUCLF, LRC or any other person in relying on and acting in accordance with any such instructions; (d) Deposit Taker shall have no responsibility to inquire as to the form, execution, sufficiency or validity of any notice or instructions delivered to it hereunder, nor to inquire as to the identity, authority or rights of the person or persons executing or delivering the same, and (e) Deposit Taker shall have a reasonable period of time within which to act in accordance with any notice or instructions from BTMUCLF with respect to the Deposit Account. Deposit Taker is hereby authorized immediately, and without demand upon or notice to us or other formality, to take direction from BTMUCLF acting in accordance with the terms and conditions of the Pledge Agreement to (i) withdraw and deliver any and all Cash Collateral and Deposited Funds to LRC, (ii) withdraw and apply any and all Cash Collateral and Deposited Funds to reduce or satisfy any and all Secured Obligations in any order and first toward any expenses Deposit Taker incurs in Deposit Taker’s discretion, as and when they arise or are due, without resort to us, any other collateral or any other obligor, or (iii) withdraw and return Cash Collateral and Deposited Funds to LRC.

3. Interest on the Deposit Account . Deposit Taker will have no obligation to pay any interest on the Deposit Account except as follows: on each Payment Date accrued interest on each Deposit Account maintained by Deposit taker will be paid by wire transfer to the LRC for the period (the “Interest Period” ) since the preceding Payment Date (or if there was no preceding Payment Date, since the Base Term Commencement Date) equal to the product of:

 

    the Deposited Funds on deposit with the Deposit Taker on the first day of such Interest Period, times

 

    LIBOR Rate less 0.125% (but in no event less than zero) for such Interest Period, times

 

    the number of days in such Interest Period, divided by;

 

    three hundred sixty.

 

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As used in this Section 3, capitalized terms defined in the Participation Agreement are intended to have the respective meanings assigned to them in the Participation Agreement.

All payments of interest by Deposit Taker hereunder to LRC hereunder shall be paid or delivered in immediately available funds by wire transfer to:

 

Bank Name:        
Bank Address:        
ABA # (Domestic):        
SWIFT ID (Inn):        
Account Name:        
Account Number:        
Bank Contact:        
       
       
Reference        

or at such other place and in such other manner as LRC may designate in a notice sent to the Deposit Taker. Time is of the essence as to all such payments by Deposit Taker to LRC.

4. Remedies . LRC agrees that, at any time after an Event of Default has occurred or any Secured Obligation arises or comes due, Deposit Taker may, without notice or demand (all of which LRC hereby waives), to take direction from BTMUCLF acting in its sole discretion to realize upon and apply all or any part of the Cash Collateral to the payment of all or any part of the Secured Obligations, in such order and manner as BTMUCLF may elect and Deposit Taker is authorized to take direction from BTMUCLF acting in its sole discretion to break any time deposit or certificate deposit prior to its stated maturity and for which LRC shall have responsibility for any loss of interest or early withdrawal penalties resulting therefrom. BTMUCLF shall not be required to pursue any other right or remedy against us, or any other person liable for any part of the Secured Obligations, or enforce its security interest in or liens on any other property securing the Secured Obligations, prior to enforcing Deposit Taker’s rights against the Cash Collateral. Without limiting the foregoing, Deposit Taker is hereby authorized immediately, and without demand upon or notice to us or other formality, to take direction from BTMUCLF acting in its sole discretion on and during the continuance of an Event of Default (as such term is defined in the Pledge Agreement), apply and setoff against the Cash Collateral and the Deposited Funds the aggregate amount of all principal of, interest on and other amounts payable with respect to all Secured Obligations existing or payable as of such date, whether or not then due.

5. Representations, Warranties and Covenants . LRC hereby represents, warrants and covenants to Deposit Taker and BTMUCLF that: (i) the Collateral is and will be owned by us free and clear of all claims, liens, security interests, pledges and encumbrances of any kind, except in Deposit Taker’s favor; (ii) LRC is a corporation, duly organized and validly existing in good standing under the laws of State of Delaware, and have the right and power to execute, deliver and perform this Agreement, and to pledge, assign and grant a security interest in the Collateral in accordance herewith; (iii) this Agreement has been duly authorized, executed and delivered by LRC (and those individuals who have signed on its

 

4


behalf have the authority to do so consistent with resolutions on file in Deposit Taker’s offices) and constitutes its legal, valid, binding and enforceable obligation; (iv) Deposit Taker has and will continue at all times to have a first priority perfected and enforceable lien and security interest in the Collateral, subject to no other liens, security interests or encumbrances; (v) LRC shall not take any action or otherwise make any attempt to draw upon, transfer or otherwise dispose of the Collateral or permit the amount of Collateral to decrease at any time; and (vi) LRC shall from time to time at Deposit Taker’s request, execute, deliver, acknowledge, file and record such agreements, documents, statements and certificates (including, without limitation, Uniform Commercial Code financing statements), and do such acts and things as are necessary or appropriate to effectuate the purposes of this Agreement. LRC hereby authorizes Deposit Taker to file any Uniform Commercial Code financing statements, amendments thereto or continuations thereof, and any other appropriate security documents or instruments and to give any notices necessary or desirable to perfect any lien or security interest granted hereby, all without the signature of the LRC or to execute such items as attorney-in-fact for the LRC, as may be necessary to further the purposes described herein. Deposit Taker shall at all times have the exclusive right to hold and possess any certificates, instruments or documents included in the Collateral. Should LRC at any time receive any such certificates, instruments or documents it shall hold the same in trust for, and immediately deliver them to, Deposit Taker. Any breach of any representation, warranty, covenant or agreement made by us herein or elsewhere shall be an “ Event of Default ”. An “ Event of Default ” shall also be as defined in the Pledge Agreement.

6. Information . Deposit Taker shall provide BTMUCLF with such information with respect to the Deposit Account and all items (and proceeds thereof) deposited in the Deposit Account as BTMUCLF may from time to time reasonably request, and LRC hereby consents to such information being provided to BTMUCLF and agrees to pay all expenses in connection therewith.

7. Exculpation; Indemnity . Deposit Taker undertakes to perform only such duties as are expressly set forth herein. Notwithstanding any other provisions of this Agreement, the parties hereby agree that Deposit Taker shall not be liable for any action taken by it in accordance with this Agreement, including, without limitation, any action so taken at BTMUCLF’s request or direction, except direct damages attributable to the Deposit Taker’s gross negligence or willful misconduct. In no event shall Deposit Taker be liable for any (i) losses or delays resulting from acts of God, war, computer malfunction, interruption of communication facilities, labor difficulties or other causes beyond Deposit Taker’s reasonable control, or (ii) for indirect, special, punitive or consequential damages. LRC agrees to indemnify and hold Deposit Taker harmless from and against all costs, damages, claims, judgments, reasonable attorneys’ fees, expenses, obligations and liabilities of every kind and nature (collectively, “ Losses ”) which Deposit Taker may incur, sustain or be required to pay (other than those attributable to Deposit Taker’s gross negligence or willful misconduct) in connection with or arising out of this Agreement or the Deposit Account (including without limitation, the amount of any overdraft created in the Deposit Account resulting from a Chargeback, and to pay to Deposit Taker on demand the amount of all such Losses. Nothing in this Section, and no indemnification of Deposit Taker hereunder, shall affect in any way the indemnification obligations of LRC to BTMUCLF under the Pledge Agreement or other

 

5


Operative Documents. The provisions of this Section shall survive termination of this Agreement.

8. Irrevocable Agreement . LRC acknowledges that the agreements made by it and the authorizations granted by it herein are irrevocable and that the authorizations granted in Section 2 are powers coupled with an interest.

9. Set-off . Deposit Taker waives all of its existing and future rights of set-off and banker’s liens against the Deposit Account and all items (and proceeds thereof) that come into possession of Deposit Taker in connection with the Deposit Account.

10. Miscellaneous . This Agreement is binding upon the parties hereto and their respective successors and assigns (including any trustee of LRC appointed or elected in any action under the Bankruptcy Code) and shall inure to their benefit. Neither LRC nor BTMUCLF may assign their respective rights hereunder unless the prior written consent of the Deposit Taker is obtained. Neither this Agreement nor any provision hereof may be changed, amended, modified or waived, except by an instrument in writing signed by the parties hereto. Any provision of this Agreement that may prove unenforceable under any law or regulation shall not affect the validity of any other provision hereof. This Agreement shall be governed by the laws of the State of New York, without giving effect to the conflicts of laws provisions of such State (including, without limitation, Section 5-1401 of the New York General Secured Obligations Law). LRC hereby irrevocably submits to the jurisdiction of the courts of the U.S. Federal and New York State courts sitting in the Borough of Manhattan, New York and waives any objection to or based upon personal jurisdiction, venue, inconvenient forum or service of process in connection with any action or proceeding arising out of or in connection with this Agreement. LRC hereby irrevocably consents to service of process by first class or certified mail, or recognized courier for which a receipt is available, sent to the address shown in Deposit Taker’s records. This Agreement may be executed in any number of counterparts which together shall constitute one and the same instrument. LRC HEREBY IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE PLEDGE AGREEMENT OR ANY RELATED TRANSACTION.

11. Termination and Resignation . This Agreement may be terminated by agreement of BTMUCLF and LRC upon fifteen (15) days’ prior written notice to Deposit Taker; provided, however, that this Agreement shall terminate immediately upon notice from BTMUCLF that all of LRC’s obligations secured by the Pledge Agreement are satisfied. Deposit Taker may, at any time upon thirty (30) days’ prior written notice to BTMUCLF and LRC, terminate this Agreement and close the Deposit Account; provided, however, that a substitute deposit taker has been appointed for BTMUCLF or Participant (in its capacity as a Participant) under and as described in the Pledge Agreement. Upon termination of this Agreement any funds in the Deposit Account shall be subject to the direction of BTMUCLF, including any direction given by BTMUCLF that such funds be wired to another “Deposit Taker” designated for BTMUCLF or such Participant under and as defined in the Pledge Agreement.

 

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12. Notices . Unless otherwise specifically provided herein, any notice or other communication required or permitted to be given shall be in writing addressed to the respective party as set forth below and may be personally served, telecopied or sent by overnight courier service and shall be deemed to have been given: (a) if delivered in person, when delivered; (b) if delivered by telecopy, on the date of transmission if transmitted on a Business Day before 4:00 P.M. (New York time) (but only if such telecopied document is also delivered by another method permitted by this Agreement by the next banking business day), or, if not, on the next succeeding Business Day; or (c) if delivered by reputable overnight courier, the banking business day on which such delivery is made by such courier.

Notices shall be addressed as follows:

 

BTMUCLF:    BTMU Capital Leasing & Finance, Inc.
   111 Huntington Avenue
   Boston, Massachusetts 02199
   Attention: Portfolio Servicing
   Telecopy:                                                      
Deposit Taker:    The Bank of Tokyo-Mitsubishi UFJ, Ltd.
   Global Markets Division for the Americas
   1251 Avenues of the Americas
   New York, New York 10020-1104
   Attn: Charles Catalano, Director – Institutional Sales Department
   Telecopy:                                                      
   Email:                                                      
LRC:    Lam Research Corporation
   4300 Cushing Parkway Fremont, California 94538
   Attention: Odette Go, Treasurer
   Telecopy:                                                      
   Email:                                                      

or in any case, to such other address as the party addressed shall have previously designated by written notice to the serving party, given in accordance with this Section.

[signature page follows.]

 

7


Please countersign below to indicate your acceptance of our agreement herein.

 

Very truly yours,

LAM RESEARCH CORPORATION,

a Delaware corporation

By:  

 

Name:  

 

Title:  

 

 

ACCEPTED AND AGREED TO as of this
     day of             ,         
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
By:  

 

Name:  

 

Title:  

 

 

ACKNOWLEDGED AND AGREED TO as of this
     day of             ,         
BTMU CAPITAL LEASING & FINANCE, INC.,
a Delaware corporation
By:  

 

Name:  

 

Title:  

 


Exhibit B

TO PLEDGE AGREEMENT

NOTICE OF LRC’S REQUIREMENT OF

DIRECT PAYMENT TO BTMUCLF

BTMU Capital Leasing & Finance, Inc.

111 Huntington Avenue

Boston, Massachusetts 02199

Attention: Portfolio Servicing

 

  Re: Pledge Agreement (Port 1) dated as of December 31, 2013 between Lam Research Corporation and BTMU Capital Leasing & Finance, Inc.

Gentlemen:

Capitalized terms used in this letter are intended to have the meanings assigned to them in the Pledge Agreement (Port 1) referenced above (the “Pledge Agreement” ). This letter constitutes notice to you, as secured party under the Pledge Agreement, that pursuant to subparagraph 5(B) of the Pledge Agreement, LRC requires you to withdraw from the Deposit Account and to retain, as a payment from LRC required by Articles XX, XXI or XXII of the Lease, the following amount:

                                          Dollars ($        )

on the following date (which, LRC acknowledges, must be the Base Term Expiration Date):

LRC acknowledges that its right to require such withdrawal is subject to the condition that LRC must give this notice to you at least ten days prior to the date of required withdrawal and payment specified above, and also to the condition that no Event of Default (under and as defined in the Pledge Agreement or as defined in the Lease referenced therein) has occurred and is continuing.

Please remember that the express terms of the Pledge Agreement allow the Deposit Takers to require notice of withdrawal at least seven days before Cash Collateral is to be withdrawn from the Deposit Accounts. Accordingly, you must notify the Deposit Takers seven days prior to the withdrawal of Cash Collateral required by this notice.

 

Lam Research Corporation
By:  

 

Name:  

 

Title:  

 

Exhibit 10.17

 

 

AMENDED AND RESTATED LEASE AGREEMENT

(Port 101 )

D ATED AS OF D ECEMBER  31, 2013

B ETWEEN

BTMU CAPITAL LEASING & FINANCE, INC.,

AS L ESSOR ,

A ND

LAM RESEARCH CORPORATION,

AS L ESSEE

 

 


TABLE OF CONTENTS

 

          Page  

ARTICLE I DEFINITIONS

     1   

ARTICLE II LEASE OF LEASED PROPERTY; LEASE TERM

     2   

SECTION 2.1.

  

Acceptance and Lease

     2   

SECTION 2.2.

  

Lease Term

     2   

ARTICLE III TAXES

     2   

SECTION 3.1.

  

Impositions

     2   

SECTION 3.2.

  

Contests

     3   

ARTICLE IV RENT

     3   

SECTION 4.1.

  

Rental Payments

     3   

SECTION 4.2.

  

Supplemental Rent

     3   

SECTION 4.3.

  

Method and Amount of Payment

     3   

SECTION 4.4.

  

Late Payment

     3   

ARTICLE V NET LEASE

     4   

ARTICLE VI UTILITY CHARGES

     5   

ARTICLE VII CONDITION AND USE OF LEASED PROPERTY

     6   

ARTICLE VIII LIENS; EASEMENTS

     6   

SECTION 8.1.

  

Liens

     6   

SECTION 8.2.

  

Easements

     7   

ARTICLE IX MAINTENANCE AND REPAIR; ALTERATIONS AND ADDITIONS

     8   

SECTION 9.1.

  

Maintenance and Repair; Compliance With Law

     8   

SECTION 9.2.

  

Improvements and Alterations

     8   

SECTION 9.3.

  

Alterations Subject to Lease

     9   

SECTION 9.4.

  

Maintenance and Repair Reports

     10   

SECTION 9.5.

  

Permitted Contests

     10   

ARTICLE X USE

     11   

SECTION 10.1.

  

Use

     11   

SECTION 10.2.

  

Trade Compliance

     11   

ARTICLE XI INSURANCE

     11   

SECTION 11.1.

  

Required Coverages

     11   

SECTION 11.2.

  

Delivery of Insurance Certificates

     13   

 

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TABLE OF CONTENTS

(continued)

 

          Page  

ARTICLE XII ASSIGNMENT AND SUBLEASING

     14   

ARTICLE XIII LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE

     15   

SECTION 13.1.

  

Event of Loss

     15   

SECTION 13.2.

  

Condemnation

     16   

SECTION 13.3.

  

Casualty

     16   

SECTION 13.4.

  

Proceeds

     17   

SECTION 13.5.

  

Negotiations

     17   

SECTION 13.6.

  

No Rent Abatement

     17   

ARTICLE XIV CERTAIN DUTIES AND RESPONSIBILITIES

     17   

ARTICLE XV INSPECTION

     18   

ARTICLE XVI ENVIRONMENTAL MATTERS

     18   

SECTION 16.1.

  

Environmental Matters

     18   

SECTION 16.2.

  

Notice of Environmental Matters

     19   

ARTICLE XVII EVENTS OF DEFAULT

     19   

ARTICLE XVIII ENFORCEMENT

     22   

SECTION 18.1.

  

Remedies

     22   

SECTION 18.2.

  

Proceeds of Sale; Deficiency

     26   

SECTION 18.3.

  

Waiver of Certain Rights

     26   

SECTION 18.4.

  

Remedies Cumulative; No Waiver; Consents

     27   

ARTICLE XIX RIGHT TO CURE

     27   

ARTICLE XX EARLY TERMINATION OPTION; OBLIGATION TO PURCHASE; MID-TERM REMARKETING OPTION

     27   

SECTION 20.1.

  

Early Termination Option

     27   

SECTION 20.2.

  

Required Purchase

     28   

SECTION 20.3.

  

Mid-term Remarketing Option

     28   

ARTICLE XXI END OF TERM OPTIONS

     28   

SECTION 21.1.

  

End of Term Options

     28   

SECTION 21.2.

  

Election of Options

     29   

ARTICLE XXII RETURN OPTION

     29   

SECTION 22.1.

  

Return Option Procedures

     29   

 

ii


TABLE OF CONTENTS

(continued)

 

          Page  

SECTION 22.2.

  

Sale

     31   

SECTION 22.3.

  

Application of Sale Proceeds and Recourse Payments

     32   

SECTION 22.4.

  

Failure to Sell Leased Property

     33   

SECTION 22.5.

  

Surrender and Return

     36   

ARTICLE XXIII MISCELLANEOUS

     37   

SECTION 23.1.

  

Binding Effect; Successors and Assigns; Survival

     37   

SECTION 23.2.

  

Severability

     37   

SECTION 23.3.

  

Notices

     37   

SECTION 23.4.

  

Amendment; Complete Agreements

     37   

SECTION 23.5.

  

Headings

     38   

SECTION 23.6.

  

Original Executed Counterpart

     38   

SECTION 23.7.

  

Governing Law

     38   

SECTION 23.8.

  

No Joint Venture

     38   

SECTION 23.9.

  

No Accord and Satisfaction

     38   

SECTION 23.10.

  

Survival

     38   

SECTION 23.11.

  

Transfer of Leased Property

     38   

SECTION 23.12.

  

Enforcement of Certain Warranties

     39   

SECTION 23.13.

  

Security Interest in Funds

     39   

SECTION 23.14.

  

Submission to Jurisdiction

     40   

SECTION 23.15.

  

Jury Trial

     40   

SECTION 23.16.

  

Payments

     41   

 

EXHIBITS   
EXHIBIT A    Description of Site

 

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AMENDED AND RESTATED LEASE AGREEMENT

( Port 101 )

THIS AMENDED AND RESTATED LEASE AGREEMENT (Port 101), dated as of December 31, 2013 (as amended, supplemented, or otherwise modified from time to time (this “ Lease ”), is between BTMU CAPITAL LEASING & FINANCE, INC., a Delaware corporation, as Lessor (the “ Lessor ”) and whose principal offices are located at 111 Huntington Avenue, Boston, Massachusetts 02199, and LAM RESEARCH CORPORATION, a Delaware corporation, as Lessee (the “ Lessee ) and whose principal offices are located at 4300 Cushing Parkway, Fremont, California 95438.

WITNESSETH:

Lessee and Lessor are entering into this Lease and the Operative Documents.

A. Subject to the terms and conditions set forth in the Operative Documents, on the Closing Date, Lessor has agreed to acquire the land described on Exhibit A attached hereto (the “ Site ”) and the existing improvements thereon (the “ Existing Improvements ”) and Personal Property used thereon (collectively, the “ Leased Property ”) which Leased Property is subject to that certain Lease Agreement (Livermore/Parcel #7), dated as of December 18, 2007 (“ Existing Lease Port 101 ”), between BNP Paribas Leasing Corporation, a Delaware corporation (the “ Existing Lessor ”), and the Lessee.

B. Existing Lessor has assigned all of its right, title and interest in and to the Existing Lease Port 101 and the Leased Property to Lessor.

C. The Lessee and the Lessor desire to continue to lease the Leased Property and to amend and restate the Existing Lease in accordance with the terms and conditions set forth below.

NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, hereby agree that the Existing Lease is hereby amended and restated in its entirety as follows:

ARTICLE I

DEFINITIONS

For all purposes hereof, the capitalized terms used herein and not otherwise defined shall have the meanings assigned thereto in Appendix I to that certain Participation Agreement dated as of even date herewith, between the Lessee and the Lessor (as the same may be amended, modified, restated or supplemented from time to time, the “ Participation Agreement ”).


ARTICLE II

LEASE OF LEASED PROPERTY; LEASE TERM

SECTION 2.1. Acceptance and Lease.

The Lessor, subject to the satisfaction or waiver of the conditions set forth in Section 3.1 of the Participation Agreement, hereby agrees to lease all of the Leased Property (the location of which is more particularly described on Exhibit A hereto) to the Lessee hereunder and the Lessee hereby agrees, expressly for the direct benefit of the Lessor, to lease from the Lessor for the Lease Term, all of the Leased Property. Without limiting the generality of the foregoing, Lessee acknowledges that the leasehold estate conveyed by this Lease and Lessee’s rights hereunder are expressly made subject and subordinate to the terms and conditions of the matters listed in Schedule B to the Title Policy and all other Permitted Liens, and any other Liens not constituting Lessor Liens.

Subject to Articles XII and XVIII hereof, the Lessor will not lease nor otherwise make the Leased Property, in whole or in part, available to any Person other than the Lessee and its permitted successors, assigns and sublessees during the Lease Term, and (without derogating in any way from the Lessor’s rights under Article XV hereof) during the Lease Term the Lessee shall have unimpeded physical control of the Leased Property notwithstanding the Lessor’s rights to inspect the Leased Property under Article XV.

SECTION 2.2. Lease Term.

Unless earlier terminated, the term of this Lease for the Leased Property shall consist of a base lease term (the “ Base Term ” or the “ Lease Term ”) which shall commence on and including the Closing Date (such day, the “ Base Term Commencement Date ”) and ending on December 31, 2020.

ARTICLE III

TAXES

SECTION 3.1. Impositions.

During the Lease Term, Lessee agrees to pay prior to delinquency without penalty or interest all Taxes imposed upon or levied against the Leased Property or any part thereof or interest therein consistent with Section 7.2 of the Participation Agreement. The Site consists of one or more separate tax lots for real property tax assessment purposes. Any Tax relating to a fiscal period of any taxing Authority falling partially within and partially outside the Lease Term shall be apportioned and adjusted between Lessor and Lessee. Lessee covenants to furnish Lessor, upon Lessor’s request, within forty-five (45) days after the last date when any Tax must be paid by Lessee, official receipts of the appropriate taxing Authority or other proof reasonably satisfactory to Lessor evidencing the payment thereof.

 

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SECTION 3.2. Contests.

Lessee shall have the right to contest any Tax in accordance with Section 7.2(b) of the Participation Agreement.

ARTICLE IV

RENT

SECTION 4.1. Rental Payments.

Commencing on the first Payment Date following the Base Term Commencement Date, the Lessee shall pay to the Lessor Basic Rent, without offset or deduction, (i) on each Payment Date, (ii) on the Return Date, and (iii) on any date on which this Lease terminates or upon demand following an Event of Default pursuant to Article XVII.

SECTION 4.2. Supplemental Rent.

The Lessee shall pay to the Lessor, or to whomever shall be entitled thereto as expressly provided herein or in any other Operative Document (and the Lessor hereby directs the Lessee, on behalf of the Lessor, to so pay any such other Person), any and all Supplemental Rent promptly as the same shall become due and payable and, in the event of any failure on the part of the Lessee to pay any Supplemental Rent, the Lessor shall have all rights, powers and remedies provided for herein or by law or in equity or otherwise in the case of nonpayment of Basic Rent. Lessee hereby reaffirms that its obligation to pay Supplemental Rent shall include the payment of any and all Additional Costs. The expiration or other termination of the Lessee’s obligations to pay Basic Rent hereunder shall not limit or modify the obligations of the Lessee with respect to Supplemental Rent.

SECTION 4.3. Method and Amount of Payment.

Basic Rent and Supplemental Rent shall be paid by wire transfer by the Lessee to the Lessor (or, in the case of Supplemental Rent, to such Person as may be entitled thereto) at such place as the Lessor (or such other Person) shall specify in writing to the Lessee pursuant to Schedule II to the Participation Agreement. Each payment of Rent shall be made by the Lessee prior to 11:00 A.M. New York time (and payments made after such time shall be deemed to have been made on the next day) at the place of payment in funds consisting of Dollars which shall be immediately available on the scheduled date when such payment shall be due unless the scheduled date shall not be a Business Day, in which case such payment shall be due and made on the next succeeding Business Day. The provisions of the foregoing sentence of this Section 4.3 shall be applicable only to Basic Rent and to Supplemental Rent payable to, or on behalf of or for the account of, the Lessor and any other Indemnitee.

SECTION 4.4. Late Payment.

If any Basic Rent shall not be paid within three (3) Business Days of the due date applicable thereto, the Lessee shall pay to the Lessor, or if any Supplemental Rent payable to or on behalf or for the account of the Lessor or other Indemnitee is not paid when due, the Lessee

 

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shall pay to whomever shall be entitled thereto, in each case as Supplemental Rent, interest at the Overdue Rate (to the maximum extent permitted by law) on such overdue amount from and including the due date thereof (without regard to any applicable grace period) to but excluding the Business Day of payment thereof.

ARTICLE V

NET LEASE

This Lease shall constitute a net lease and, notwithstanding any other provision of this Lease, it is intended that Basic Rent, Supplemental Rent, the Lease Balance and all other amounts due and payable under the Operative Documents shall be paid without counterclaim, setoff, deduction or defense of any kind and without abatement, suspension, deferment, diminution or reduction of any kind, and the Lessee’s obligation to pay all such amounts throughout the Lease Term is absolute and unconditional. The obligations and liabilities of the Lessee hereunder shall, to the fullest extent permitted by Applicable Laws, in no way be released, discharged or otherwise affected for any reason (other than the indefeasible payment or performance in full of such liability or obligation) including: (a) any defect in the condition, merchantability, design, construction, quality or fitness for use of the Leased Property or any portion thereof, or any failure of the Leased Property or any portion thereof to comply with all Applicable Laws including any inability to occupy or use the Leased Property or any portion thereof by reason of such non-compliance; (b) any damage to, abandonment, loss, contamination of or Release from or destruction of or any requisition or taking of the Leased Property or any portion thereof including eviction; (c) any restriction, prevention or curtailment of or interference with any use of the Leased Property or any portion thereof, including eviction; (d) any defect in title to or rights to the Leased Property or any portion thereof or any Lien on such title or rights or on the Leased Property or any portion thereof; (e) any change, waiver, extension, indulgence or other action or omission or breach in respect of any obligation or liability of or by the Lessor; (f) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceedings relating to the Lessee, the Lessor or any other Person, or any action taken with respect to this Lease by any trustee or receiver of the Lessee, the Lessor or any other Person, or by any court, in any such proceeding; (g) any claim that the Lessee has or might have against any Person, including the Lessor or any Indemnitee arising from any of the circumstances set forth in this sentence (but will not constitute a waiver of such claim); (h) any failure on the part of the Lessor to perform or comply with any of the terms of this Lease, any other Operative Document or of any other agreement whether or not related to the Overall Transaction; (i) any invalidity or unenforceability or disaffirmance against or by the Lessee of this Lease or any provision hereof or any of the other Operative Documents or any provision of any thereof; (j) the impossibility of performance by the Lessee, the Lessor or both; (k) any action by any court, administrative agency or other Authority; (l) the construction of any Alterations; (m) the failure of the Lessee to achieve any accounting or tax benefits or the characterization of the transaction intended by Section 2.12 of the Participation Agreement; or (n) any other occurrence whatsoever, whether similar or dissimilar to the foregoing, whether or not the Lessee shall have notice or knowledge of any of the foregoing. Except as specifically set forth in Article XIII or Section 20.1 of this Lease, this Lease shall be noncancellable by the Lessee for any reason whatsoever and the Lessee, to the fullest extent permitted by Applicable Laws, waives all rights now or hereafter conferred by statute or otherwise to quit, terminate or surrender this

 

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Lease, or to any diminution, abatement or reduction of Rent payable by the Lessee hereunder. If for any reason whatsoever this Lease shall be terminated or amended in whole or in part by operation of law or otherwise, except as expressly provided in Article XIII or Section 20.1 of this Lease, the Lessee shall, unless prohibited by Applicable Laws, pay to the Lessor (or, in the case of Supplemental Rent, to whomever shall be entitled thereto) a compensation in an amount equal to each Rent payment (including the Lease Balance and any other amount due and payable under any Operative Documents) at the time and in the manner that such payment would have become due and payable under the terms of this Lease if it had not been terminated or amended in whole or in part. Each payment of Rent including any payment of the Lease Balance and Break Even Price made by the Lessee hereunder shall be final and, absent manifest error in the computation of the amount thereof, the Lessee shall not seek or have any right to recover all or any part of such payment from the Lessor or any party to any agreements related thereto for any reason whatsoever. Lessee assumes the sole responsibility for the condition, use, operation, maintenance, and management of the Leased Property and the Lessor shall have no responsibility in respect thereof and shall have no liability for damage to the Leased Property or the property relating thereto of the Lessee or any subtenant of the Lessee on any account or for any reason whatsoever. Without affecting the Lessee’s obligation to pay Basic Rent, Supplemental Rent, the Lease Balance and all other amounts due and payable under the Operative Documents or to perform its obligations under the Operative Documents, the Lessee may, notwithstanding any other provision of the Operative Documents (other than Section 8.11 of the Participation Agreement), seek damages of any kind or any other remedy at law or equity against the Lessor for such willful misconduct or gross negligence or negligence in the handling of funds or for a breach by the Lessor of its obligations under this Lease or the other Operative Documents.

ARTICLE VI

UTILITY CHARGES

During the Lease Term the Lessee shall pay or cause to be paid all development and improvement charges and all charges for electricity, power, gas, oil, water, telephone, sanitary sewer service and all other rents, utilities or public dues used in or on the Improvements or the Site during the Lease Term. Lessee shall be entitled to receive any credit or refund with respect to any utility charge or public dues paid by the Lessee and the amount of any credit or refund received by the Lessor on account of any utility charges paid by the Lessee, net of the costs and expenses reasonably incurred by the Lessor in obtaining such credit or refund, which amount shall be promptly paid over to the Lessee. All charges for utilities imposed or public dues with respect to the Improvements and the Site for a billing period during which this Lease expires or terminates (except pursuant to Article XX or Section 21.1(a), in which case the Lessee shall be solely responsible for all such charges) shall be adjusted and prorated on a daily basis between the Lessee and any purchaser of the Leased Property, and each party shall pay or reimburse the other for each party’s pro rata share thereof; provided, that in no event shall the Lessor have any liability therefor.

 

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ARTICLE VII

CONDITION AND USE OF LEASED PROPERTY

LESSEE ACKNOWLEDGES AND AGREES THAT IT IS LEASING THE LEASED PROPERTY “AS IS” IN ITS PRESENT CONDITION, SUBJECT TO (A) ANY RIGHTS OF ANY PARTIES IN POSSESSION THEREOF OR OF THE SITE, (B) THE STATE OF THE TITLE THERETO OR TO THE SITE EXISTING AT THE TIME THE LESSOR ACQUIRED ITS INTEREST IN THE LEASED PROPERTY, (C) ANY STATE OF FACTS WHICH AN ACCURATE SURVEY OR PHYSICAL INSPECTION MIGHT SHOW (INCLUDING ANY SURVEY DELIVERED ON OR PRIOR TO THE CLOSING DATE), (D) ALL APPLICABLE LAWS, AND (E) ANY VIOLATIONS OF APPLICABLE LAWS WHICH MAY EXIST AT THE COMMENCEMENT OF THE LEASE TERM. LESSEE HAS EXAMINED THE LEASED PROPERTY AND (INSOFAR AS THE LESSOR IS CONCERNED) HAS FOUND THE SAME TO BE SATISFACTORY. WITHOUT LIMITING THE SPECIFIC REPRESENTATIONS AND WARRANTIES IN ARTICLE IV OF THE PARTICIPATION AGREEMENT, THE LESSOR HAS NOT MADE NOR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, NOR SHALL BE DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO THE TITLE TO THE LEASED PROPERTY OR THE SITE OR TO THE VALUE, MERCHANTABILITY, HABITABILITY, CONDITION, OR FITNESS FOR USE OF THE LEASED PROPERTY OR THE SITE, OR ANY PART THEREOF, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASED PROPERTY OR THE SITE, OR ANY PART THEREOF, AND THE LESSOR SHALL NOT BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR THE FAILURE OF THE LEASED PROPERTY OR ANY PORTION THEREOF, TO COMPLY WITH ANY APPLICABLE LAWS, except that the Lessor hereby represents and warrants that as of the date of this Lease, the Leased Property is free of Lessor Liens. The Lessee, having been afforded full opportunity to inspect the Leased Property, is satisfied with the results of its inspections and is entering into this Lease solely on the basis of the results of its own inspections, and all risks incident to the matters discussed in the preceding sentence, as between the Lessor, on the one hand, and the Lessee, on the other, are to be borne by the Lessee. The provisions of this Article VII have been negotiated, and, except to the extent otherwise expressly stated, the foregoing provisions are intended to be a complete exclusion and negation of any representations or warranties by the Lessor, express or implied, with respect to the Leased Property (or any interest therein) that may arise pursuant to any law now or hereafter in effect or otherwise.

ARTICLE VIII

LIENS; EASEMENTS

SECTION 8.1. Liens.

During the Lease Term and subject to Lessee’s right to engage in Permitted Contests in accordance with Section 9.5, the Lessee will not directly or indirectly create, incur, assume or suffer to exist any Lien (other than Permitted Liens) on or with respect to any portion of the Leased Property or any portion thereof or the Lessor’s interest therein. Lessee, at its own expense, will promptly pay, satisfy and otherwise take such actions as may be necessary to keep

 

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the Leased Property free and clear of, and duly to discharge, eliminate or bond in a manner reasonably satisfactory to the Lessor, any such Lien (other than Permitted Liens) if the same shall arise at any time.

SECTION 8.2. Easements.

Notwithstanding Section 8.1, at the request of Lessee, Lessor shall, from time to time during the Lease Term and upon reasonable advance written notice from Lessee and receipt of the materials specified below, consent to and join in any (i) grant of easements, licenses, rights of way and other rights in the nature of easements, including utility easements which in each case facilitate Lessee’s use, development and operation of the Leased Property, (ii) release or termination of easements, licenses, rights of way or other rights in the nature of easements which releases and terminations are for the benefit of the Site or the Improvements or any portion thereof, (iii) dedication or transfer of portions of the Site, not improved with a building, for road, highway or other public purposes, provided the same are for the benefit of the Site or Improvements, (iv) execution of agreements for ingress and egress and amendments to any covenants and restrictions affecting the Site or Improvements or any portion thereof, and (v) request to any Authority for platting or subdivision or replatting or resubdivision approval with respect to the Site or any portion thereof or any parcel of land of which the Site or any portion thereof forms a part or a request for any variance from zoning or other governmental requirements, provided that :

(a) any such action shall be at the sole cost and expense of Lessee and Lessee shall pay all reasonable out-of-pocket costs of the Lessor in connection therewith (including the reasonable fees of attorneys, architects, engineers, planners, appraisers and other professionals reasonably retained by the Lessor in connection with any such action);

(b) Lessee shall have delivered to the Lessor a certificate of a Responsible Officer of Lessee stating that:

(i) such action will not cause the Leased Property, the Site or the Improvements or any portion thereof to fail to comply in any material respect with the provisions of the Lease or any other Operative Documents, or in any material respect with Applicable Laws; and

(ii) such action will not materially reduce the Fair Market Value, utility or useful life of the Leased Property, the Site or the Improvements or Lessor’s interest therein;

(c) in the case of any release or conveyance, if the Lessor so reasonably requests, the Lessee will cause to be issued and delivered to the Lessor by the Title Insurance Company endorsements to the Title Policies (to the extent available) pursuant to which the Title Insurance Company agrees that its liability for the payment of any loss or damage under the terms and provisions of the Title Policies will not be affected by reason of the fact that a portion of the real property referred to in Schedule A of the Title Policies has been released or conveyed by Lessor; and

(d) there shall be no abatement of Rent as a result thereof.

 

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ARTICLE IX

MAINTENANCE AND REPAIR; ALTERATIONS AND ADDITIONS

SECTION 9.1. Maintenance and Repair; Compliance With Law.

At all times during the Lease Term, the Lessee shall (a) maintain the Improvements and the Site in good operating condition and repair, subject to ordinary wear and tear, and in any event in a manner consistent with other similar facilities or buildings owned or leased by the Lessee and its Subsidiaries; (b) subject to Section 9.5, maintain the Improvements and the Site in accordance with all Applicable Laws (including all Environmental Laws) in all material respects, whether or not such maintenance requires structural modifications; (c) maintain the Improvements and the Site in such a way that the Improvements and the Site shall not constitute a danger to persons or things; (d) comply in all material respects with the Insurance Requirements which are in effect at any time with respect to the Leased Property or any part thereof; (e) use the Improvements and the Site only in accordance with Article X; (f) make all necessary or appropriate repairs, replacements and renewals of the Improvements and the Site or any part thereof which may be required to keep the Improvements and the Site in the condition required by the preceding clauses (a) through (e), whether interior or exterior, structural or nonstructural, ordinary or extraordinary, foreseen or unforeseen, and including repairs, replacements and renewals that would constitute capital expenditures under GAAP if incurred by an owner of property; and (g) procure, maintain and comply in all material respects with all licenses, permits, orders, approvals, consents and other authorizations required for the construction, use, maintenance and operation of the Improvements and the Site. The Lessee waives any right that it may now have or hereafter acquire to (x) require the Lessor to maintain, repair, replace, alter, remove or rebuild all or any part of the Improvements or the Site or (y) make repairs at the expense of the Lessor pursuant to any Applicable Laws or other agreements.

SECTION 9.2. Improvements and Alterations.

(a) The Lessee, at the Lessee’s own cost and expense, (i) shall make alterations, renovations, repairs, improvements and additions to the Leased Property or any part thereof and substitutions and replacements therefor (collectively, “ Alterations ”) which are (A) necessary to repair or maintain the Improvements or the Site in the condition required by Section 9.1 or (B) necessary or advisable to restore the Improvements and the Site to its condition existing prior to a Casualty or Condemnation to the extent required pursuant to Article XIII, and (ii) so long as no Material Default or Event of Default has occurred and is continuing, may undertake Alterations on the Leased Property so long as such Alterations comply in all material respects with Applicable Laws and are consistent and comply with Section 9.1 and subsection (b) of this Section 9.2.

(b) The making of any Alterations pursuant to subsection (a)(i) above of this Section 9.2 must be in compliance with the following requirements:

The Lessee shall not make any Alterations in violation of the terms of any restriction, easement, condition, covenant or other similar matter affecting title to or binding on the Improvements or the Site.

 

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(i) No Alterations shall be undertaken until the Lessee shall have procured and paid for, so far as the same may be required from time to time, all permits and authorizations relating to such Alterations of all municipal and other Authorities having jurisdiction over the Improvements or the Site. Lessor, at the Lessee’s expense, shall join in the application for any such permit or authorization and execute and deliver any document in connection therewith, whenever such joinder is necessary or advisable; provided that, however, such joinder shall not constitute or be deemed to constitute, any assumption or responsibility or liability whatsoever.

(ii) The Alterations shall be completed in a good and workmanlike manner and in compliance in all material respects with all Applicable Laws then in effect and with the Insurance Requirements.

(iii) All Alterations shall, when completed, be of such a character as to not materially diminish (A) the utility of the Improvements as a corporate office complex including a corporate office building and any uses ancillary thereto, (B) the then current Fair Market Value as determined by reference to the Appraisal, or (C) the Fair Market Value as determined by reference to the Appraisal as of the scheduled expiration date of the Lease Term.

(iv) The Lessee shall have made adequate arrangements for payment of the cost of all Alterations when due so that the Improvements and the Site shall at all times be free of Liens for labor and materials supplied or claimed to have been supplied to the Improvements or the Site, other than Permitted Liens; provided, that the Lessee shall have the right to engage in Permitted Contests in accordance with Section 9.5.

(v) The Alterations must be located solely on the Site.

SECTION 9.3. Alterations Subject to Lease.

The following Alterations without further act shall be deemed to constitute a part of the Leased Property and be subject to this Lease:

(a) Alterations that are in replacement of or in substitution for a portion of the Improvements;

(b) Alterations that are required to be made pursuant to the terms of Section 9.1 or 9.2(a)(i) hereof; or

(c) Alterations that are Non-severable or immovable.

To the extent any Alterations are deemed to constitute part of the Leased Property pursuant to the preceding sentence, the Lessee hereby acknowledges and agrees that such Alterations will become upon installation property of the Lessor. The Lessee will, at the Lessor’s request, execute and deliver any documents reasonably necessary to evidence or cause the vesting of such interests in and to such Alterations to the Lessor.

 

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If such Alterations are not within any of the categories set forth in clauses (a) through (c) of this Section 9.3 and have not become property of the Lessor in accordance therewith, then such Alterations shall remain the sole property of the Lessee and such Alterations shall not be deemed to be Alterations which are part of the Leased Property. All such Alterations not constituting part of the Leased Property may, so long as no Event of Default is continuing, be removed at any time by the Lessee other than Alterations the removal of which would result in a violation of Applicable Laws. The Lessee shall at its expense prior to the Lease Expiration Date repair any damage to the Improvements or the Site caused by the removal of such Alterations. Lessor (or the purchaser of the Leased Property if the Lessee elects the Return Option or in connection with a sale pursuant to Section 18.1) may purchase from the Lessee any such Alterations (if not already owned by the Lessor) that the Lessee intends to remove from the Improvements or the Site prior to the Lease Expiration Date, which purchase shall be at the Fair Market Value of such Alterations as determined by the Appraiser at the time of such purchase.

SECTION 9.4. Maintenance and Repair Reports.

During the Lease Term, the Lessee shall keep maintenance and repair reports in sufficient detail, on the same basis as records are kept for similar properties owned or leased by the Lessee or its Subsidiaries, to indicate the nature and date of major work done. Such reports shall be kept on file by the Lessee at its offices during the Lease Term, and shall be made available at the Lessee’s office to the Lessor upon reasonable request.

SECTION 9.5. Permitted Contests.

If, to the extent and for so long as (a) a contest of the legality, validity or applicability to the Improvements or the Site or any interest therein of, or the operation, use or maintenance thereof by the Lessee of (i) any Applicable Laws, (ii) any term or condition of, or any revocation or amendment of, or other proceeding relating to, any Governmental Action, or (iii) any Lien or Tax shall be made in good faith, by appropriate proceedings initiated timely and diligently prosecuted, by the Lessee or (b) compliance with such Applicable Laws, Governmental Action, Lien or Tax shall have been excused or exempted by a valid nonconforming use permit, waiver, extension or forbearance, the Lessee shall not be required to comply with such Applicable Laws, Governmental Action, Lien or Tax but only if and so long as any such contest shall constitute a Permitted Contest.

Lessor will not be required to join in any Permitted Contest pursuant to this Section 9.5 unless a provision of any Applicable Laws requires, or, in the good faith opinion of the Lessee, it is helpful to the Lessee that such proceedings be brought by or in the name of the Lessor; and in that event, the Lessor will join in the proceedings or permit them or any part thereof to be brought in its name if and so long as (i) no Event of Default is continuing, (ii) the Lessee has not elected the Return Option, and (iii) the Lessee pays all related out-of-pocket expenses, and the Lessee shall be deemed to have acknowledged and agreed that the Lessor is indemnified therefor pursuant to Section 7.1 of the Participation Agreement.

 

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ARTICLE X

USE

SECTION 10.1. Use.

The Site on which the Improvements are located shall be used solely for the purposes of a corporate office complex including a corporate office building and any uses ancillary thereto. Lessee shall not use the Leased Property or any portion thereof for any purpose or in any manner that would diminish (A) the utility of the Improvements as a corporate office complex including a corporate office building and any uses ancillary thereto, (B) the then current Fair Market Value as determined by reference to the Appraisal, or (C) the Fair Market Value as determined by reference to the Appraisal as of the scheduled expiration date of the Lease Term. Lessee shall use the Leased Property in compliance in all material respects with (a) any Applicable Laws (including Environmental Laws), except to the extent permitted by Section 9.5, (b) any Insurance Requirements, and (c) all of the Operative Documents. Lessee shall pay, or cause to be paid, all charges and costs required in connection with the use of the Leased Property in accordance with this Lease and the Participation Agreement. Lessee shall not commit or permit any intentional waste of the Leased Property or any material part thereof.

SECTION 10.2. Trade Compliance.

Lessee shall comply with the Trading with the Enemy Act, as amended, and all of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended), federal embargo laws and regulations, and the USA PATRIOT Act in the conduct of all of its activities, including the following: (i) the use, assignment, or sublease of Site or the Improvements by Prohibited Persons; and (ii) the export of any products manufactured at the Improvements to any destination or Prohibited Person.

ARTICLE XI

INSURANCE

SECTION 11.1. Required Coverages.

During the Lease Term, the Lessee will provide or cause to be provided insurance with respect to the Improvements and the Site of a character usually obtained by the Lessee against loss or damage of the kinds and in the amounts customarily insured against by the Lessee with respect to similar properties, and carry such other insurance as is usually carried by the Lessee with respect to similar properties; provided, that in any event the Lessee will maintain:

(a) Comprehensive General Liability Insurance . Lessee will maintain a comprehensive general liability insurance policy on an occurrence basis, including contractual liability and pollution liability insurance for sudden and accidental contamination occurring on, in or about the Improvements or the Site with a combined single limit against claims for third-party bodily injury, including death and third-party property damage in an amount at least equal to $25,000,000 per occurrence and $25,000,000 in the aggregate, which may be a blanket policy. Such coverage may be subject to deductibles or self-insurance up to an amount that is customarily carried by the Lessee with respect to similar property. Such liability insurance shall

 

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name the Lessor as an additional insured and the Lessor shall continue to be named as an additional insured and such policy shall remain in effect until at least the third anniversary of the end of the Lease Term.

(b) Builder’s Risk Insurance . At any other time in connection with any construction of or Alteration to any Improvements, the Lessee shall arrange, on behalf of the Lessor and all contractors, to obtain and keep in force an all-risk builder’s risk insurance with respect to the Improvements and the construction of such Alterations or Improvements insuring the Lessor’s interest in the Improvements and the construction of such Alterations or Improvements including resulting damage from collapse, coverage for fire, hurricanes, flood and earthquakes and coverage against damage or loss caused by machinery accidents and operational and performance testing and start-up, with extended coverage, in an amount not less than the full replacement cost of the insured building (without deduction for depreciation). Such coverage shall provide (1) coverage for insuring the buildings, non-temporary structures, machinery, equipment (exclusive of manufacturing and laboratory equipment), facilities, fixtures, supplies and other property constituting part of the Leased Properties including but not limited to boiler and machinery insurance covering pressure vessels, air tanks, boilers, machinery, pressure piping, heating, ventilation and air conditioning equipment, and elevator and escalator equipment, (2) inland transit coverage from deisgnated storage facilities, (3) off-site (within 1000 feet of the insured Improvements) coverage with sublimits sufficient to insure the full replacement value of any equipment, supplies and materials not stored at the Land, (4) removal of debris, (5) increased cost of construction, and (6) coverage for foundations and other property below the surface of the ground, but the interest of contractors, subcontractors and agents in insured property during construction at the insured location to the extent of Lessee’s legal liability for insured physical loss or damage to such property. Such coverage shall (x) not be subject to any self-insurance and shall be subject to a deductible of no more than $50,000 per occurrence except for (i) $100,000 per occurrence for water damage, (ii) $1,000,000 per occurrence for earthquake damage and (iii) $500,000 per occurrence for flood damage, and (y) be in such form and amounts and covering such risks as were approved by the Lessor on the Closing Date. Lessee shall promptly deliver all reports or information to the appropriate recipient which may be required under such policy or policies in order to ensure that the coverage provided with respect to the construction of such Alterations or Improvements is in an amount at least equal to the aggregate Advances funded under the Operative Documents for the construction of such Alterations or Improvements.

(c) Property Insurance . During the Base Term, Lessee will maintain all-risk insurance (including builder’s risk insurance including coverage for fire, hurricanes, flood and earthquakes and coverage against damage or loss caused by machinery accidents and operational and performance testing and start-up) against loss or damage covering the Leased Property or any portion thereof against such risks customarily maintained by the Lessee with respect to similar properties in an amount not less than the replacement cost of the Improvements, including any costs that may be required to cause the Leased Property to be reconstructed to comply with then current Applicable Laws. Such property insurance coverage may be subject to deductibles or self-insurance up to an amount that is customarily carried by the Lessee with respect to similar property. Such property insurance shall name each of the Lessor as sole loss payee and as an additional insured.

 

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(d) Other Insurance . Insurance shall not cover any terrorism or war risks unless the Lessee carries insurance for such risks generally on similar property it owns or leases.

Insurance provided pursuant to this Section 11.1 (other than permitted self-insurance) shall be written by reputable insurance companies that are financially sound and solvent with a rating of at least “A-” by A.M. Best’s or Standard and Poor’s or by other insurers approved in writing by the Lessor (including consistent with the Lessee’s past practices, insurance companies affiliated with the Lessee). Each policy referred to in this Section 11.1 shall provide that: (i) it will not be canceled or allowed to lapse without renewal, except after not less than thirty (30) days’ prior written notice to the Lessor or ten (10) days’ prior notice to the Lessor in the case of non-payment of premium; (ii) other than standard policy exclusions, there is no provision in the policies where the interests of the Lessor shall be invalidated by any act or negligence of or breach of warranty by the Lessee or any Person having an interest in the Improvements or the Site; (iii) such insurance is primary and non-contributory with respect to any other insurance carried by or available to the Lessor; (iv) the insurer shall waive customary rights of subrogation, setoff, counterclaim, or other deduction, whether by attachment or otherwise, against any additional insured or loss payee; (v) such general liability policy and pollution legal liability policy shall contain a severability clause providing for coverage of the Lessor as if a separate policy had been issued to the Lessor; (vi) the Lessee will notify the Lessor promptly of any policy cancellation, reduction in policy limits, lapse, modification or amendment, and (vii) the insurer shall not allow for unpaid premiums to be paid by the Lessor.

Except as expressly set forth herein, the insurance required to be maintained by the Lessee under this Section 11.1 may be subject to such deductible amounts or periods, as applicable as is consistent with the Lessee’s practice for other properties similar to the Leased Properties owned or leased by the Lessee, and may be carried under blanket policies maintained by or on behalf of the Lessee so long as such policies otherwise comply with the provisions of this Section 11.

SECTION 11.2. Delivery of Insurance Certificates.

Pursuant to Section 3.1(c) of the Participation Agreement, the Lessee shall deliver to the Lessor certificates of insurance reasonably satisfactory to the Lessor evidencing the existence of all insurance required to be maintained hereunder and setting forth the respective coverages, limits of liability, carrier, policy number and period of coverage. Thereafter, throughout the Lease Term, at the time each of the Lessee’s insurance policies is renewed (but in no event less frequently than once every twelve (12) months) or upon written request by the Lessor during the continuance of an Event of Default, the Lessee shall deliver to the Lessor certificates of insurance evidencing that all insurance required by Section 11.1 to be maintained by the Lessee with respect to the Leased Property is in effect.

Lessee agrees that nothing in this Article XI shall prohibit the Lessor from maintaining its own insurance coverage, at its own expense, which coverage shall not reduce the obligations of the Lessee under this Article XI; provided, however, that no such insurance shall be maintained if its maintenance would prevent the Lessee from maintaining insurance as to the Improvements and the Site with insurers when required to do so herein.

 

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ARTICLE XII

ASSIGNMENT AND SUBLEASING

During the Lease Term, the Lessee may assign, sublease or transfer to any Person, at any time, in whole or in part, its right, title or interest in, to or under this Lease or any portion of the Leased Property without the prior written consent of the Lessor so long as (v) any such assignment, sublease or transfer would not subject the Lessor to a violation of laws or regulations applicable to the Lessor including those promulgated by OFAC, (w) no Event of Default shall have occurred and be continuing or, after giving effect to such assignment, sublease or transfer, would exist, (x) any such sublease is expressly subject and subordinate to this Lease, (y) Lessee remains liable for all obligations under this Lease after giving effect to any such assignment, sublease or transfer, and (z) Lessor retains all of its interests in and benefits of the Cash Collateral and receives prior certification thereof from the Lessee and such other evidence thereof as the Lessor may reasonably request. Unless and until Lessee has exercised the Early Termination Option or the Purchase Option, no sublease may have a term that extends beyond the Base Term Expiration Date. In all cases, Lessee will promptly provide Lessor copies of each such assignment, sublease or transfer.

No sublease will discharge or diminish any of the Lessee’s obligations hereunder and the Lessee shall remain directly and primarily liable under the Lease with respect to the Leased Property and the Operative Documents to which it is a party. Each sublease permitted hereby shall be made and shall expressly provide in writing that it is subject and subordinate to this Lease and the rights of the Lessor hereunder, shall expressly provide for the surrender of the Leased Property by the sublessee at the election of the Lessor after an Event of Default, shall provide that such provisions may be directly enforced by the Lessor and shall provide that such sublessee expressly agrees to comply with the use restrictions set forth in Article X hereof.

Notwithstanding the first paragraph of this Article XII, Lessee may not assign or transfer its rights and obligations under this Lease and the other Operative Documents unless (a) on the effective date of any such assignment and transfer, no Event of Default exists, (b) the parties enter into an assignment agreement in form and substance reasonably satisfactory to the Lessor, (c) all filings of or in respect of any such assignment and transfer necessary to protect the rights of the Lessor in the Leased Property and the other Operative Documents are made in a timely fashion, (d) without limiting any provisions of this Article XII, any such assignment and transfer shall include an appropriate provision for the operation, maintenance and insurance of the Leased Property in accordance with the terms hereof, (e) the Lessor shall have received opinions of counsel with respect thereto and such other matters as the Lessor may reasonably request, (f) such assignment and transfer will not result in a Material Adverse Effect, (g) such assignment and transfer will not result in the imposition of any unindemnified Taxes, (h) the Lessor shall have received such other documents and instruments and the Lessee shall take such further acts as the Lessor may reasonably request to evidence and facilitate such assignment and transfer, provided that no such document or instrument shall increase Lessee’s obligations or diminish Lessee’s rights under the Operative Documents or otherwise, and (i) such assignment and transfer will not, with respect to the Lessor, violate the use restrictions set forth in Article X hereof or Applicable Laws and provided, further that, Lessee shall provide to the Lessor not less than thirty (30) days’ prior written notice of such assignment or transfer, such notice to identify

 

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the assignee or transferee. No such assignment and transfer will diminish or discharge any of the Lessee’s obligations under this Lease or the other Operative Documents.

ARTICLE XIII

LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE

SECTION 13.1. Event of Loss.

(a) Event of Loss During Base Term .

(i) Event of Taking . If an Event of Taking shall occur during the Base Term, the Lessee shall give the Lessor prompt written notice of such occurrence and the date thereof and the Lessee shall on the next succeeding Payment Date (the “ Next Date ”) after such Event of Taking shall have occurred or, if such Event of Taking shall have occurred within ten (10) Business Days preceding a Payment Date, then on the next succeeding Payment Date after such Next Date shall have occurred, terminate this Lease and, as compensation for such Event of Taking, pay to the Lessor on such Payment Date the Break Even Price.

(ii) Event of Loss . If an Event of Loss (other than an Event of Taking) shall occur during the Base Term, the Lessee shall give the Lessor prompt written notice of such occurrence and the date thereof which notice shall contain an election by the Lessee to either (A) purchase the Leased Property from the Lessor on the Next Date after such Event of Loss shall have occurred or, if such Event of Loss shall have occurred within ten (10) Business Days preceding a Payment Date, then on the next succeeding Payment Date after such Next Date shall have occurred, at a purchase price equal to the Break Even Price of the Leased Property (and if the Lessee makes such election the Break Even Price shall become due and payable and the Lessee shall purchase the Leased Property on such Payment Date), or (B) provided no Material Default or Event of Default shall have occurred and be continuing and rebuilding of the Improvements is capable of being completed prior to the end of the Lease Term (as certified in writing by a construction consultant appointed by Lessee and acceptable to the Lessor), rebuild the Improvements and continue the Lease. If the Lessee elects to rebuild the Improvements, the Lessee shall rebuild the Improvements to the condition required to be maintained pursuant to Section 9.1 and so as not to diminish (A) the utility of the Improvements as a corporate office complex including a corporate office building, and any uses ancillary thereto, (B) the then current Fair Market Value as determined by reference to the Appraisal, or (C) the Fair Market Value as determined by reference to the Appraisal as of the scheduled expiration date of the Lease Term.

(b) Purchase and Termination. Upon receipt in full by the Lessor of the Break Even Price pursuant to this Section 13.1, the Lease shall terminate and the obligations of the Lessee hereunder and under the other Operative Documents (other than any obligations expressed herein, or any other Operative Document as surviving termination of this Lease (including any obligations with respect to any existing Event of Default)) shall terminate as of the date of such receipt. Upon such receipt in full of the Break Even Price, the Leased Property and all rights to

 

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any remaining awards or proceeds shall be transferred to the Lessee or its designee in accordance with Section 23.11 hereof.

(c) Application of Payments Relating to an Event of Loss . Subject to Section 13.4, all condemnation proceeds and property insurance proceeds received at any time by Lessee during the Lease Term from any Authority or other Person with respect to any Event of Loss shall be promptly remitted to the Lessor (up to, but not exceeding, the Break Even Price) and, upon the payment in full of the Break Even Price, the Lessor shall assign to the Lessee all rights to any condemnation proceeds and property insurance proceeds and any such condemnation proceeds and property insurance proceeds remaining thereafter or thereafter received shall be paid by the Lessor (whichever shall receive same) over to Lessee, or as Lessee may direct, and any receipt of such proceeds shall satisfy the Lessee’s obligations under Section 13.1.

SECTION 13.2. Condemnation.

In case of a Condemnation for temporary use of all or a portion of the Leased Property or a Condemnation of a portion of the Leased Property, in each case which is not an Event of Taking, this Lease shall remain in full force and effect, without any abatement or reduction of Rent, and the proceeds and awards received from any Authority relating to such Condemnation shall, so long as no Material Default or Event of Default shall have occurred and be continuing, be paid by the Lessor to the Lessee and, to the extent applicable, shall be used by the Lessee to repair and restore the affected Leased Property to the condition required by Section 9.1. Notwithstanding anything herein to the contrary, any portion of such proceeds that is awarded with respect to the time period after the expiration or termination of the Lease Term (unless the Lessee shall have exercised an option to purchase the Leased Property and consummated such purchase) shall be paid to the Lessor; provided, that if the Lessee has paid the Break Even Price to the Lessor, such proceeds (or the portion of such proceeds in excess of portion thereof applied to the Break Even Price) shall be paid by the Lessor over to the Lessee.

SECTION 13.3. Casualty.

Upon any Casualty during the Base Term with respect to the Leased Property which is not an Event of Loss, this Lease shall remain in full force and effect, without any abatement or reduction of Rent and, if the cost of repair would exceed $2,000,000 (as reasonably determined by Lessee), the Lessee shall give to the Lessor written notice of such Casualty. As soon as practicable after such Casualty with respect to the Leased Property has occurred, the Lessee shall repair and rebuild the affected portions of the Leased Property suffering such Casualty (or cause such affected portions to be repaired and rebuilt) to the condition required to be maintained by Section 9.1 and so that the Fair Market Value, utility, useful life and functional capability of such item as restored is at least equivalent to the Fair Market Value, utility and useful life and functional capability of such item as in effect immediately prior to the occurrence of such Casualty (assuming the Improvements were being maintained in accordance with Section 9.1); provided, that at all times during such repair or rebuilding the Lessee shall maintain the Improvements in accordance with Section 9.1.

 

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SECTION 13.4. Proceeds.

If a Material Default or an Event of Default shall have occurred and be continuing, any proceeds received from any Authority or any insurance proceeds, in either case with respect to any Casualty or an Event of Loss, shall be held by the Lessor. So long as no Material Default or Event of Default shall have occurred and be continuing, any such proceeds received from any Authority or any insurance proceeds with respect to any Casualty, or if the Lessee has elected to rebuild the Improvements upon an Event of Loss pursuant to Section 13.1 hereof, with respect to such Event of Loss, shall be paid by the Lessor or by the insurers over to the Lessee up to $2,000,000. Any such proceeds received from any Authority or any insurance proceeds with respect to any Casualty or, if the Lessee has elected to rebuild the Improvements, with respect to an Event of Loss, in each case, not paid over to the Lessee in accordance with the previous sentence, shall be held by the Lessor and made available to the Lessee to pay costs actually incurred by the Lessee to restore the Leased Property as required herein in accordance with Section 13.1, as applicable, and any proceeds received from any Authority or any insurance proceeds remaining after such restoration shall be paid by the Lessor over to the Lessee.

SECTION 13.5. Negotiations.

In the event any part of the Leased Property becomes subject to condemnation or requisition proceedings during the Lease Term, the Lessee shall give notice thereof to the Lessor promptly after the Lessee has knowledge thereof and, to the extent permitted by any Applicable Laws, the Lessee shall control the negotiations with the relevant Authority unless an Event of Default has occurred and is continuing, in which case the Lessor shall be entitled to control such negotiations in consultation with the Lessee; provided, that in any event the Lessor may participate at the Lessor’s expense (or if an Event of Default is continuing or such negotiations occur during the Construction Period, at the Lessee’s expense) in such negotiations. Lessee shall give to the Lessor such information, and copies of such documents, which relate to such proceedings, or which relate to the settlement of amounts due under insurance policies required by Section 11.1, and are in the possession of the Lessee, as are reasonably requested by the Lessor. If the proceedings relate to an Event of Taking, the Lessee shall act diligently in connection therewith. Nothing contained in this Section 13.5 shall diminish the Lessor’s rights with respect to condemnation proceeds and property insurance proceeds under Section 13.1.

SECTION 13.6. No Rent Abatement.

Rent shall not abate hereunder by reason of any Casualty, any Event of Loss, any Event of Taking or any Condemnation of any portion of the Leased Property, and the Lessee shall continue to perform and fulfill all of the Lessee’s obligations, covenants and agreements hereunder notwithstanding such Casualty, Event of Loss, Event of Taking or Condemnation until the Lease Expiration Date.

ARTICLE XIV

CERTAIN DUTIES AND RESPONSIBILITIES

Lessor undertakes to perform such duties and only such duties as are specifically set forth herein and in the other Operative Documents, and no implied covenants or obligations shall be

 

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read into this Lease against the Lessor, and the Lessor agrees that it shall not, nor shall it have a duty to, manage, control, use, sell, maintain, insure, register, lease, operate, modify, dispose of or otherwise deal with the Improvements or the Site in any manner whatsoever, except as required by the terms of the Operative Documents and as otherwise provided herein.

ARTICLE XV

INSPECTION

Upon seven (7) Business Days prior notice to the Lessee, the Lessor or its authorized representatives (the “ Inspecting Parties ”) at any time during the Lease Term may inspect (a) the Improvements and the Site and (b) the books and records of the Lessee and its Affiliates relating to the Improvements and the Site and make copies and abstracts therefrom. All such inspections shall be (i) during the Lessee’s normal business hours, (ii) subject to the Lessee’s reasonable confidentiality requirements, and (iii) at the expense and risk of the Inspecting Parties, except that, if a Default or Event of Default has occurred and is continuing, the Lessee shall reimburse the Inspecting Parties for the reasonable out-of-pocket costs and expenses of such inspections and, except for the Inspecting Party’s gross negligence or willful misconduct, such inspection shall be at the Lessee’s risk. No inspection shall unreasonably interfere with the Lessee’s operations. None of the Inspecting Parties shall have any duty to make any such inspection or inquiry. None of the Inspecting Parties shall incur any liability or obligation by reason of making any such inspection or inquiry unless and to the extent such Inspecting Party causes damage to the Improvements or the Site or any property of the Lessee or any other Person during the course of such inspection.

ARTICLE XVI

ENVIRONMENTAL MATTERS

SECTION 16.1. Environmental Matters.

At the Lessee’s sole cost and expense, the Lessee shall promptly and diligently and in accordance with Applicable Laws commence and complete any response, clean up, remedial or other action necessary to remove, clean up or remediate any Environmental Violation with respect to the Improvements or the Site to the extent required of the Lessee or the Lessor in order to comply with Applicable Laws (a “ Remediation ”). Lessee shall, upon completion of remedial action by the Lessee (i) with respect to any Material Environmental Violation described in clause (ii) of the definition thereof, cause to be prepared by an authorized representative of the Lessee a certificate describing in sufficient detail such Environmental Violation and the actions taken by the Lessee (or its agents) in response to such Environmental Violation and a statement of such authorized representative of the Lessee that such Environmental Violation has been remedied in compliance in all material respects with Applicable Laws and (ii) with respect to any other Material Environmental Violation, cause to be prepared by the Environmental Expert a report describing in sufficient detail such Environmental Violation and the actions taken by the Lessee (or its agents) in response to such Environmental Violation, and a statement by the Environmental Expert that the Environmental Violation has been remedied in compliance in all material respects with Applicable Laws. Each Environmental Violation shall be remedied prior to the Lease Expiration Date unless the Leased Property has been purchased by the Lessee in

 

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accordance with Section 20.1, 20.2 or 22.1(a), provided that if remedying such Environmental Violation requires continued operation of a remediation system or monitoring of testing wells or similar ongoing testing, the Lessee shall have access at reasonable times and shall remain obligated to perform such actions unless the Lessor, in its sole discretion, notifies Lessee to terminate such actions. Nothing in this Article XVI shall reduce or limit the Lessee’s obligations under Article VII of the Participation Agreement (which obligations shall include any Claims arising from such actions).

SECTION 16.2. Notice of Environmental Matters.

Promptly upon the Lessee’s obtaining knowledge of the existence of any Material Environmental Violation with respect to the Improvements or the Site, the Lessee shall notify the Lessor in writing of such Material Environmental Violation. Promptly, but in any event within thirty (30) days from the date a Responsible Officer of the Lessee has actual knowledge thereof, the Lessee shall provide to Lessor written notice of any pending or, to the Lessee’s knowledge, threatened (in writing) claim, action or proceeding involving any Material Environmental Violation with respect to the Improvements or the Site. All such notices shall describe in reasonable detail the nature of the claim, action or proceeding and the Lessee’s proposed response thereto. In addition, the Lessee shall provide to the Lessor, within thirty (30) days of receipt, copies of all material written communications with any Authority relating to any Material Environmental Violation. Lessee shall also promptly provide such detailed reports of any Material Environmental Violation as may reasonably be requested by the Lessor. For purposes hereof, “ Material Environmental Violation ” shall mean any Environmental Violation (i) which imposes or, in the good faith judgment of the Lessee or the Lessor, could reasonably be expected to impose criminal liability on the Lessor, or (ii) the cost of which to remediate is or could reasonably be expected to be in excess of $1,000,000.

ARTICLE XVII

EVENTS OF DEFAULT

The occurrence of any one or more of the following events, whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body, shall constitute an “ Event of Default ”:

(a) the Lessee shall fail to make any payment of Basic Rent when due and such failure shall continue for a period of three (3) Business Days after notice thereof, or the Lessee shall fail to make any payment of the Break Even Price, Lease Balance or other amounts due and payable under Article XIII, Article XX, Section 21.1(a) or Article XXII when due;

(b) the Lessee shall fail to make payment of any Supplemental Rent (other than any Supplemental Rent described in clause (a) above) when due and such failure shall continue for a period of ten (10) Business Days after notice thereof;

(c) the Lessee shall fail to maintain insurance as required by Article XI of this Lease;

 

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(d) the Lessee shall fail to perform or observe any of the terms, covenants, conditions and agreements set forth in Articles XXI and XXII of this Lease other than the failure to give notice of an end of term option pursuant to Section 21.1 hereof;

(e) any representation, warranty, certification or statement made or deemed to be made by the Lessee under this Lease, any other Operative Document (except as to any Other Lease Document) or in any certificate, financial statement or other document delivered pursuant hereto or thereto, shall at any time prove to have been incorrect in any material respect when made or deemed made and Lessee shall fail to cure the underlying facts causing such representation, warranty, certification or statement to be incorrect in all material respects for a period of ten (10) Business Days after the earlier of Actual Knowledge or notice thereof;

(f) the Lessee shall default in the performance or observance of any term, covenant, condition or agreement contained in this Lease (other than as specifically provided for otherwise in this Article XVII) or any other Operative Document (except as to any Other Lease Document) and such default shall continue for a period of thirty (30) days after the earlier of Actual Knowledge thereof or written notice thereof has been given to the Lessee; provided, however, that if such failure is capable of cure but cannot be cured by payment of money or cannot be cured by diligent efforts within such thirty (30) day period but such diligent efforts shall be properly commenced within such thirty (30) day period and the Lessee is diligently pursuing, and shall continue to pursue diligently remedy of such failure, such cure period shall be extended for an additional period of time in excess of such cure period as may be necessary to cure, not to extend beyond the earlier to occur of (i) the Lease Expiration Date or (ii) one hundred and twenty (120) days after the earlier of Actual Knowledge thereof or written notice thereof having been given to the Lessee;

(g) (i) Lessee or any of its Subsidiaries shall default beyond any applicable period of grace in any payment of principal of or interest on any indebtedness for borrowed money on which Lessee or any of its subsidiaries is liable in an aggregate principal amount then outstanding of $50,000,000 or more or (ii) an event of default (other than a failure to pay principal or interest) as defined in any mortgage, indenture, agreement or instrument under which there may be issued, or by which there may be secured or evidenced, any such indebtedness shall happen and shall result in such indebtedness becoming or being declared due and payable prior to the date on which it could otherwise become due and payable;

(h) the Lessee or any material Subsidiary shall file a voluntary petition of insolvency, bankruptcy or a voluntary petition or an answer seeking reorganization in a proceeding under any bankruptcy, insolvency or other similar laws (as now or hereafter in effect) or an answer admitting the material allegations of a petition filed against the Lessee in any such proceeding; or the Lessee shall, by voluntary petition, answer or consent, seek relief under the provisions of Bankruptcy Code or any other now existing or future bankruptcy, insolvency or other similar law providing for reorganization, administration or winding-up or for an agreement, composition, extension or adjustment with their respective creditors, or shall adopt a resolution of liquidation, including but not limited to, any petition or notice filed by the Board of Directors of the Lessee or such Subsidiary or the Lessee shall admit in writing its inability or fail generally to pay its debts or the Lessee shall seek the appointment of a trustee in bankruptcy, administrator or a receiver for any kind of insolvency proceedings for itself or any substantial portion of its assets,

 

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or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall take any corporate action to authorize any of the foregoing;

(i) an involuntary case or other proceeding shall be commenced against the Lessee or any material Subsidiary seeking its bankruptcy, liquidation, reorganization, winding-up or other relief with respect to it or its debts under the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of sixty (60) consecutive days; or the Lessee or any material Subsidiary shall be declared bankrupt or any other order for relief shall be entered against the Lessee or any material Subsidiary under the U.S. Federal bankruptcy laws or any other relevant bankruptcy laws of any jurisdiction;

(j) a final judgment or order for the payment of money in excess of $125,000,000 (to the extent not covered by insurance) shall be rendered against the Lessee or any material Subsidiary and the Lessee or such Subsidiary shall not discharge the same or provide for its discharge in accordance with its terms, or procure a stay of execution thereof, within sixty (60) days after the date of entry thereof and, in the case of any such stay of execution, within said period of sixty (60) days (or such longer period during which execution of such judgment shall have been stayed) appeal therefrom and cause the execution thereof to be stayed during such appeal;

(k) a Change in Control shall occur;

(l) (i) Lessee or any ERISA Affiliate shall fail to pay within thirty (30) days of the due date thereof an amount or amounts aggregating in excess of $100,000,000 which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; (ii) notice of intent to terminate a Plan having unfunded benefit liabilities (within the meaning of Section 4001(a)(18) of ERISA) in excess of $100,000,000 (a “ Material Plan ”) shall be filed under Title IV of ERISA by Lessee or any ERISA Affiliate, any plan administrator or any combination of the foregoing; (iii) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan; (iv) the failure of Lessee or any ERISA Affiliate to make any required contribution to a Multiemployer Plan unless the failure is cured within thirty (30) days, (v) the withdrawal or partial withdrawal of Lessee or any ERISA Affiliate from any Multiemployer Plan, (vi) the receipt by Lessee or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from Lessee or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, “ insolvent ” (within the meaning of Section 4245 of ERISA) or in “ reorganization ” (within the meaning of Section 4241 of (ERISA) or (vii) the imposition of liability on Lessee or any ERISA Affiliate by reason of the application of Section 4212(c) of ERISA, in each case with respect to clauses (iv)-(vii), to the extent that such event, taken together with any other such events described in clauses (iv)-(vii), could reasonably be expected to result in Lessee incurring aggregate liability in excess of $100,000,000;

 

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(m) any Operative Document (except as to any Other Lease Document) or any assignment, security interest or Lien granted thereunder (except in accordance with its terms), in whole or in part, terminates, ceases to be a legal, valid and binding enforceable obligation of the Lessee or any of its Affiliates or the Lessee or any of its Affiliates, directly or indirectly, contests in any manner in any court the effectiveness, validity, binding nature or enforceability thereof; or any assignment, security interest or Lien securing the Lessee’s obligations under the Operative Documents, in whole or in material part, ceases to be perfected (except as the result of any affirmative act of the Lessor, failure by the Lessor to file a UCC continuation statement or by operation of law) with the same priority as was in effect on the Closing Date; or

(n) an Event of Default shall have occurred under and as defined in the Pledge Agreement (Port 101).

ARTICLE XVIII

ENFORCEMENT

SECTION 18.1. Remedies.

(a) During the continuation of an Event of Default and notwithstanding any Event of Loss or termination of the Lease pursuant to Article XIII, at the Lessor’s option and without limiting the Lessor in the exercise of any other right or remedy the Lessor may have on account of such Event of Default, and without any further demand or notice, the Lessor may to the fullest extent permitted under Applicable Laws cause the following to occur:

(i) By notice to the Lessee, the Lessor may terminate the Lessee’s right to possession of the Leased Property.

(ii) The Lessor may (i) demand that Lessee, and Lessee shall upon the written demand of the Lessor, return the Leased Property promptly to the Lessor in the condition required by Section 22.5 and the Lessor shall not be liable for the reimbursement of Lessee for any costs and expenses incurred by Lessee in connection therewith, and (ii) without prejudice to any other remedy which the Lessor may have for possession of the Leased Property, and to the extent and in the manner permitted by Applicable Laws, enter upon the Site and Improvements and take immediate possession of (to the exclusion of Lessee) the Leased Property or any part thereof and expel or remove Lessee, by summary proceedings or otherwise, all without liability to Lessee for or by reason of such entry or taking of possession (provided that, the Lessor shall remain liable for actual damages caused by its bad faith, gross negligence or willful misconduct), whether for the restoration of damage to property caused by such taking of possession or otherwise and, in addition to the Lessor’s other damages, Lessee shall be responsible for all actual and reasonable costs and expenses incurred by the Lessor in connection with any reletting, including brokers’ fees and all costs of any alterations or repairs made by the Lessor;

(iii) The Lessor may terminate this Lease with respect to all or any part of the Leased Property and/or declare the aggregate outstanding Lease Balance to be immediately due and payable, and the Lessor shall be entitled to (x) recover from the Lessee the following amounts and (y) take the following actions:

 

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(1) the Lessee shall pay all accrued and unpaid Rent hereunder (including Basic Rent and Supplemental Rent) for the period commencing on the Closing Date through the Final Rent Payment Date with respect to the Leased Property;

(2) the Lessor may elect either of the following with respect to any or all of the Leased Property:

(A) the Lessor may demand, by written notice to the Lessee specifying a payment date (the “ Final Rent Payment Date ”) on a Business Day no earlier than thirty (30) days after the date of such notice but, in any event, no later than the date the Leased Property or part thereof is sold pursuant to clause (B)(2) hereof, that the Lessee purchase the Leased Property, and the Lessee shall pay to the Lessor, on the Final Rent Payment Date (in lieu of Basic Rent due after the Final Rent Payment Date), an amount equal to the sum of (x) the Lease Balance computed for the period commencing on the Closing Date to and including the Final Rent Payment Date, plus (y) all accrued and unpaid Rent due and unpaid for the period commencing on the Closing Date to and including the Final Rent Payment Date (less any amounts paid by the Lessee under clause (x) above), and upon payment of such amount, and the amount of all other sums due and payable by the Lessee under this Lease and the other Operative Documents (and interest at the Overdue Rate on the amounts payable under this clause (B)(1) from the Final Rent Payment Date to the date of actual payment), the Leased Property shall be transferred to the Lessee or its designee pursuant to Section 23.11; or

(B) the Lessor may sell its interest in the Leased Property and/or pursue any and all remedies under the Security Documents, and, in any event, the Lessee shall pay to the Lessor an amount equal to the excess, if any, of (x) all amounts described in clause (B)(1) above due the Lessor over (y) the net Sale Proceeds received by the Lessor from the foregoing sale (provided, that in calculating such net Sale Proceeds, all fees, costs, expenses and Taxes to the extent not indemnified and not paid by the Lessee pursuant to Section 7.2 of the Participation Agreement incurred by the Lessor in connection with such sale, including legal fees, shall be deducted from such Sale Proceeds);

(3) Any other amount necessary to compensate the Lessor for all the damages caused by or resulting from the Lessee’s failure to perform the Lessee’s obligation under this Lease, including the costs and expenses (including reasonable attorneys’ fees, advertising costs and brokers’ commissions) of recovering possession of the Leased Property, removing Persons or property from the Leased Property, placing the Leased Property in good order, condition, and repair, preparing and altering the Leased Property for reletting, and all other costs and expenses of reletting; and

 

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(4) Such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by Applicable Laws.

(iv) The Lessor may exercise any and all rights and remedies under the Security Documents including with respect to the Cash Collateral subject to the Pledge Agreement and accounts under the Blocked Account Agreement.

(v) If an Event of Default under this Lease is continuing, this Lease shall continue in effect for so long as the Lessor does not terminate this Lease, and the Lessor may enforce all of the Lessor’s rights and remedies under this Lease, including the right to recover the Rent hereunder (including Basic Rent (when applicable) and Supplemental Rent) as it becomes due under this Lease. Lessee’s right to possession shall not be deemed to have been terminated by the Lessor except pursuant to clause (i) above. The following do not constitute a termination of this Lease:

(1) Acts of maintenance or preservation or efforts to relet the Leased Property; and

(2) Withholding of consent to assignment or subletting, or terminating a subletting or assignment by the Lessee.

(vi) In the event that the Lessor elects to continue this Lease in full force and effect following the termination of the Lessee’s right of possession of the Improvements, the Lessor, to the maximum extent permitted by Applicable Laws, may enforce all its rights and remedies under this Lease including the right to recover Rent hereunder as it becomes due. During the continuance of an Event of Default or following the termination of the Lessee’s right to possession of the Improvements, the Lessor may enter the Improvements and the Site in accordance with Applicable Laws without terminating this Lease and sublet all or any part of the Leased Property for the Lessee’s account to any Person, for such term (which may be a period beyond the remaining Lease Term), at such rents and on such other terms and conditions as are commercially reasonable. In the event of any such subletting, rents received by the Lessor from such subletting shall be applied (a) first, to the payment of the reasonable costs incurred by the Lessor in maintaining, preserving, altering and preparing the Leased Property for subletting and other reasonable costs of subletting, including reasonable brokers’ commissions and attorneys’ fees; (b) second, to the payment of Rent hereunder then due and payable; (c) third, to the payment of future Rent hereunder as the same may become due and payable hereunder; (d) fourth, to the payment of all other obligations of the Lessee hereunder and under the other Operative Documents (including the Lease Balance), and (e) fifth, the balance, if any, shall be paid to the Lessee upon (but not before) expiration of the Lease Term. If the rents received by the Lessor from such subletting, after application as provided above, are insufficient in any period to pay the Rent due and payable hereunder for such period, the Lessee shall pay such deficiency to the Lessor upon demand. Notwithstanding any such subletting for the Lessee’s account without termination, the Lessor may at any time thereafter, by written notice to the Lessee, elect to terminate this Lease.

 

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(vii) The Lessor may exercise any other right or remedy that may be available to it under Applicable Laws or in equity, or proceed by appropriate court action (legal or equitable) to enforce the terms or to recover damages for the breach hereof, including those arising from a breach by the Lessee of its obligations under Section 20.2 hereof. Separate suits may be brought to collect any such damages for any Rent installment period(s), and such suits shall not in any manner prejudice the Lessor’s right to collect any such damages for any subsequent Rent installment period(s), or the Lessor may defer any such suit until after the expiration of the Lease Term, in which event such suit shall be deemed not to have accrued until the expiration of the Lease Term.

(viii) The Lessor may retain and apply against the Lessor’s damages all sums which the Lessor would, absent such Event of Default, be required to pay to, or turn over to, the Lessee pursuant to the terms of this Lease.

The Lessee acknowledges and agrees that upon the declaration of an Event of Default the amount due and owing by the Lessee to the Lessor hereunder shall be the Lease Balance and that to the maximum extent permitted by Applicable Laws, the Lessee waives any right to contest the Lease Balance as the liquidated sum or agreed upon sum due and owing.

(b) In the event that an Event of Default is declared (or deemed declared) solely and exclusively on the basis of one or more 97-1 Events of Default,

(x) a claim or demand by the Lessor for payment by Lessee of or in respect of the Lease Balance under Section 18.1(a) hereof shall be limited as follows:

(i) any obligation of the Lessee to pay the Lease Balance and amounts due under clauses (C) and (D) of Section 18.1(a)(iii) shall be reduced to be an obligation to pay an amount equal to the Recourse Deficiency Amount; provided, however, that if Lessee shall not pay the full Lease Balance and such other amounts, the Lessor shall not have any obligation to transfer the Leased Property to the Lessee or its designee as provided in clause (B)(1) of Section 18.1(a)(iii); and

(ii) any obligation of the Lessee to pay any shortfall determined by reference to the Lease Balance as provided in clauses (B)(2) of Section 18.1(a)(iii), and amounts due under clauses (C) and (D) of Section 18.1(a)(iii) shall be revised to be an obligation to pay the lesser of (i) such shortfall plus such other amounts and (ii) the Recourse Deficiency Amount; and

the references to “ Lease Balance ” in the last paragraph of Section 18.1(a) and in Section 18.2 shall be deemed references to the amount described in clause (i) or clause (ii) above, as applicable, provided, however, that the foregoing limitation shall not limit or affect any other rights of the Lessor as Lessor shall have all rights and remedies available under the Operative Documents or available at law, equity or otherwise including the right to demand the payment of Supplemental Rent (other than the Lease Balance) and the right to require surrender and return or sale to a third party of the Leased Property all as set forth herein; and

 

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(y) if Section 18.1(a)(vi) is applicable, the reference to Lease Balance in clause (d) thereof shall be a reference to the Recourse Deficiency Amount so long as the Lease has not been terminated.

SECTION 18.2. Proceeds of Sale; Deficiency.

(a) All payments received and amounts held or realized by the Lessor at any time when an Event of Default shall be continuing and after the Lease Balance shall have been accelerated pursuant to this Article XVIII as well as all payments or amounts then held or thereafter received by the Lessor (except for rents received by the Lessor from subletting pursuant to Section 18.1(a)(vi), which shall be distributed as set forth therein) and the proceeds of sale pursuant to Section 18.1(a)(iii)(B)(2) shall be distributed forthwith upon receipt by the Lessor as follows:

first , to the Lessor, so much of such amount as is required to reimburse the Lessor for any fees, costs, expenses, Taxes or other loss incurred by it (to the extent not previously reimbursed);

second , to the Lessor, so much of such amounts as are required to pay all expenses or fees incurred by the Lessor in connection therewith including Break Funding Amounts, if any;

third , to the Lessor, so much of such amount as is required to pay all accrued Yield thereon;

fourth , to the Lessor, so much of such amounts as are required to pay in full the outstanding amount of the Lease Balance;

fifth , to the Lessor, so much of such amounts as are required to pay all outstanding obligations of Lessee pursuant to the Operative Documents including all indemnities which are due and payable; and

sixth , to Lessee, the balance of such amount, if any.

SECTION 18.3. Waiver of Certain Rights.

To the maximum extent permitted by Applicable Laws, (a) the Lessee hereby waives the benefit of any appraisement, valuation, stay, extension, reinstatement and redemption laws now or hereafter in force and all rights of marshalling in the event of any sale of the Leased Property or any interest therein and (b) if this Lease shall be terminated pursuant to this Article XVIII, the Lessee waives, to the fullest extent permitted by Applicable Laws, (i) any notice of re-entry or the institution of legal proceedings to obtain re-entry or possession, (ii) any right of redemption, re-entry or repossession, (iii) the benefit of any laws now or hereafter in force exempting property from liability for rent or for debt or limiting the Lessor with respect to the election of remedies, (iv) any other rights which might otherwise limit or modify any of the Lessor’s rights or remedies under this Article XVIII, and (v) any rights now or hereafter conferred under California Applicable Laws that may require the Lessor to sell, lease or otherwise use the Leased Property, or any part thereof in mitigation of the Lessor’s damages upon the occurrence of an

 

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Event of Default or that may otherwise limit or modify any of the Lessor’s rights or remedies under this Article XVIII.

SECTION 18.4. Remedies Cumulative; No Waiver; Consents.

To the extent permitted by, and subject to the mandatory requirements of, Applicable Laws, each and every right, power and remedy herein specifically given to the Lessor or otherwise in this Lease shall be cumulative and shall be in addition to every other right, power and remedy herein specifically given or now or hereafter existing at law, in equity or by statute, and each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised from time to time and as often and in such order as may be deemed expedient by the Lessor, and the exercise or the beginning of the exercise of any power or remedy shall not be construed to be a waiver of the right to exercise at the same time or thereafter any other right, power or remedy. No delay or omission by the Lessor in the exercise of any right, power or remedy or in the pursuit of any remedy shall impair any such right, power or remedy or be construed to be a waiver of any default on the part of the Lessee or be an acquiescence therein. Lessor’s consent to any request made by the Lessee shall not be deemed to constitute or preclude the necessity for obtaining the Lessor’s consent, in the future, to all similar requests. No express or implied waiver by the Lessor of any Event of Default shall in any way be, or be construed to be, a waiver of any future or subsequent Default or Event of Default.

ARTICLE XIX

RIGHT TO CURE

If any Event of Default other than those described in paragraphs (h) and (i) of Article XVII shall be continuing and in the Lessor’s reasonably exercised judgment the Lessee is not acting diligently and appropriately to cure such Event of Default, the Lessor may, but shall not be obligated to, on five (5) Business Days’ prior notice to the Lessee (except in the event of an emergency, in which case only one (1) Business Day’s prior notice shall be required), cure such Event of Default and the Lessor shall not thereby be deemed to have waived any default caused by such failure to cure, and the amount of such payment and the amount of the expenses of the Lessor (including reasonable attorneys’ fees and expenses) incurred in connection with such cure, together with interest thereon at the Overdue Rate, shall be deemed Supplemental Rent, payable by the Lessee to the Lessor upon demand.

ARTICLE XX

EARLY TERMINATION OPTION; OBLIGATION TO PURCHASE; MID-TERM REMARKETING OPTION

SECTION 20.1. Early Termination Option.

Without limitation of the Lessee’s purchase obligation pursuant to Section 20.2, the Lessee may, at its option, on any Business Day following the Base Term Commencement Date but prior to the Lessee’s election to exercise the Return Option, purchase all, but not less than all, of the Leased Property (the “ Early Termination Option ”) at a price equal to the Break Even Price. In order to exercise its option to purchase the Leased Property pursuant to this Section 20.1, the Lessee shall give the Lessor not less than thirty (30) days’ prior written notice of such

 

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election which election, in each case, shall be irrevocable when made. Notwithstanding anything herein to the contrary, the Lessee shall not be permitted to exercise the Early Termination Option following the occurrence and during the continuance of an Event of Default unless it shall (i) elect the Early Termination Option on or before ten (10) Business Days following such Event of Default, and (ii) consummate the purchase of the Leased Property by Lessee (or its designee) before twenty (20) Business Days following such Event of Default. Upon receipt of the Break Even Price, the Leased Property shall be transferred to the Lessee (or its designee) pursuant to Section 23.11.

SECTION 20.2. Required Purchase.

So long as the Lessor has not exercised any other remedy inconsistent therewith, the Lessee shall be obligated to purchase the Leased Property for the Break Even Price automatically and without notice upon the occurrence of any Event of Default described in clauses (h) or (i) of Article XVII and upon receipt of the Break Even Price the Leased Property shall be transferred to the Lessee (or its designee) pursuant to Section 23.11.

SECTION 20.3. Mid-term Remarketing Option.

At any time during the Lease Term other than after the occurrence and during the continuance of an Event of Default, Lessee shall have the option (the “ Remarketing Option ”) to designate a third party purchaser and to cause the Lessor to sell the Leased Property to such purchaser on the date designated for the sale thereof by Lessee (the “ Remarketing Sale Date ”) provided, that the Lessor shall have received the Remarketing Sale Proceeds of such sale together with (in the case where such Remarketing Sale Proceeds do not equal or exceed the Break Even Price) additional cash amounts paid to the Lessor by the Lessee, as Supplemental Rent, in an amount equal to the excess of the Break Even Price over such Remarketing Sale Proceeds. If the Remarketing Sale Proceeds exceed the Break Even Price as of such Remarketing Sale Date, the Lessor shall pay over to the Lessee the portion of the Remarketing Sale Proceeds in excess thereof after satisfaction of all amounts due hereunder or under the other Operative Documents. Subject to, and concurrent with, the receipt by the Lessor of funds equal to or in excess of the Break Even Price, on the Remarketing Sale Date, the Lessor shall convey to the Lessee or its designee the Leased Property in accordance with Section 23.11. The Lessee shall be responsible for the payment of all fees and expenses of the Lessor (including reasonable attorneys’ fees and expenses) incurred in connection with any exercise or purported exercise of the Remarketing Option.

ARTICLE XXI

END OF TERM OPTIONS

SECTION 21.1. End of Term Options

At least one hundred and eighty (180) days prior to the Return Date, but not more than two hundred seventy (270) days, the Lessee shall, by delivery of an irrevocable written notice to the Lessor, exercise one of the following options:

 

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(a) Purchase for cash for the Break Even Price all, but not less than all, of the Leased Property then subject to this Lease on the last day of the Lease Term (the “ Purchase Option ”) and if the Lessee shall have elected the Purchase Option, upon the payment to the Lessor of the Break Even Price, the Leased Property shall be transferred to the Lessee (or its designee) pursuant to Section 23.11; or

(b) Provided no Default or Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Event of Default with respect to which the Lessor has not yet commenced exercising remedies) shall have occurred and be continuing, return the Leased Property to the Lessor at the end of the scheduled expiration date of the Lease Term (the “ Return Option ”). The Return Option shall be conditioned upon and subject to the fulfillment by the Lessee of each of the terms and conditions set forth in Article XXII and, thereafter, the Lessee shall have no further obligations to pay Basic Rent or the remaining Lease Balance. Lessee shall not enter into any additional subleases or renew any subleases with respect to the Leased Property following the Lessee’s election of the Return Option. Following the Lessee’s election of the Return Option, the Lessee shall not remove any Alterations.

SECTION 21.2. Election of Options.

In the event Lessor shall not have received the foregoing notice from Lessee prior to the date that is one hundred and eighty (180) days prior to the last day of the Return Date, by delivery of written notice via nationally recognized overnight courier to the Lessee, Lessor may notify the Lessee of the expiration of the election notice period set forth in the preceding section. If, in any event, the Lessee fails to make a timely election under Section 21.1 hereof, the Lessee shall be deemed to have elected the Return Option. Lessee may not elect the Return Option if there exists on the date the election is made a Default, an Event of Default or an Event of Loss. In the event a Default or an Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) or an Event of Loss shall have occurred after the election by the Lessee, or deemed election by the Lessee, of the Return Option, then notwithstanding any such election or deemed election, Lessee shall be deemed to have elected the Purchase Option with respect to the Leased Property. In the event a Default or Event of Default that is solely and exclusively based on one or more 97-1 Events of Default shall have occurred after the election by Lessee of the Return Option, (i) Lessee may continue with its Return Option so long as the Lessor has not commenced exercising remedies with respect thereto, and (ii) Lessee shall not be permitted to continue with its Return Option and shall be subject to Section 18 hereof including the limitations set forth in Section 18.1(b) hereof, in the event the Lessor shall have commenced remedies with respect thereto.

ARTICLE XXII

RETURN OPTION

SECTION 22.1. Return Option Procedures.

(a) If the Lessee elects or is deemed to have elected the Return Option and the Lessor elects to require the Lessee to offer to sell the Leased Property, at the option of the Lessor, (x)

 

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the purchaser shall be reasonably entitled (whether on or before the Return Date or thereafter) to be granted a temporary easement or other right of access from the Lessee on the Leased Property to enable the purchaser to have access over paths and streets necessary to remarket the Leased Property (the “ Easement ”) (which obligation of the Lessee to grant such Easement hereunder shall survive the termination of this Lease), or (y) the Lessee shall use commercially reasonable efforts as non-exclusive agent for the Lessor to obtain the highest all cash purchase price for the Leased Property. In the event the Lessee receives any bid, the Lessee shall within five (5) Business Days after receipt thereof and, at least five (5) Business Days prior to the Return Date, certify to the Lessor in writing the amount and terms of such bid and the name and address of the party (who shall not be the Lessee or any Subsidiary of the Lessee or, unless the sum of (i) the Sale Proceeds pursuant to a proposed bid which the Lessee desires to accept plus (ii) the Recourse Deficiency Amount plus (iii) any amount payable pursuant to Section 7.5 of the Participation Agreement is not less than the Break Even Price, any Person with whom the Lessee has an understanding or arrangement regarding their future use, possession or ownership of the Leased Property or the Lessor’s other rights, title and interest in and to the Leased Property, but who may be the Lessor, any Affiliate thereof, or any Person contacted by the Lessor (other than any Person otherwise forbidden from being such purchaser pursuant to the foregoing parenthetical)) submitting such bid, and the Lessee and any sublessee shall confirm in writing both to the Lessor and to the bidder that it will vacate the Leased Property and take such reasonable steps as may be required to grant to the bidder the Easement on or before the Return Date.

(b) If the sum of (i) the Sales Proceeds pursuant to a proposed bid which the Lessee desires to accept plus (ii) the Recourse Deficiency Amount plus (iii) any amount payable pursuant to Section 7.5 of the Participation Agreement is not less than the Break Even Price, then the Lessee shall determine and accept the winning bid; otherwise, Lessor shall have the right, in its sole and absolute discretion to accept or reject any bid so presented by the Lessee. As non-exclusive selling agent, Lessee’s expenses and the out-of-pocket expenses incurred by the Lessor in connection with any such bidding and sale process pursuant to this Section 22.1 as well as all costs and expenses incurred by the Lessor or a buyer or potential buyer of the Leased Property to place the Leased Property in the condition required by Section 9.1, shall be deducted from the Sale Proceeds. On the Return Date, so long as no Event of Default or Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) shall have occurred and be continuing: (w) the Lessee shall transfer all of the Lessee’s right, title and interest in the Leased Property if any, that the Lessor does not yet hold pursuant to the terms of the Operative Documents to the bidder, if any, which shall have submitted the bid (if any) accepted pursuant to this Section 22.1(b), in the same manner and in the same condition and otherwise in accordance with all of the terms of this Lease, warranted free and clear of all Liens other than Permitted Liens described in clauses (a) and (b) of the definition thereof; (x) subject to the prior or current payment by the Lessee of all amounts due under clause (y) of this sentence, the Lessor shall comply with any conditions to transfer set forth in Section 22.2 and the transfer provisions of Section 22.1(b) in order to transfer its interests in the Leased Property for cash to such bidder; (y) the Lessee, as non-exclusive selling agent, shall simultaneously pay to the Lessor all of the amounts required pursuant to Section 22.3; and (z) after payment in full of all amounts owing to the Lessor hereunder and under the terms of the bid, this Lease shall terminate or, at Lessee’s option, shall be assigned by Lessor without recourse or warranty by Lessor to a

 

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designee concurrent with the payment of such designated amount. The Lessor shall not have any responsibility for procuring any purchaser; provided, however, that the Lessor and its designees may engage in activities to market and sell the Leased Property and may terminate Lessee as its non-exclusive selling agent upon one (1) Business Day’s notice. Any such activities reasonably undertaken by the Lessor pursuant to this Section 22.1(b) shall be at the Lessor’s sole cost and expense (which shall be deducted from the Sale Proceeds in accordance with the foregoing), shall not reduce the Lessee’s obligations, as non-exclusive selling agent, under this Section 22.1(b) or during the Extended Remarketing Period) to use commercially reasonable efforts, as non-exclusive selling agent, to sell the Leased Property in accordance with the requirements of this Section 22.1(b) and Section 22.2. If the Sale Proceeds exceed the Break Even Price as of the Return Date, the Lessee shall retain or be entitled to receive the portion of the Sale Proceeds in excess thereof. If the Sale Proceeds are less than the aggregate outstanding Break Even Price, the Lessee shall pay or shall cause to be paid to the Lessor, as Supplemental Rent, on the date of such sale (but not later than the Return Date), in addition to the Sale Proceeds, an additional amount as set forth in the last sentence of Section 22.3(a) hereof.

SECTION 22.2. Sale.

Lessee, as non-exclusive selling agent, shall, on the Return Date, at the Lessee’s own expense (without right of reimbursement therefor out of gross sale proceeds except as provided in the third sentence of Section 22.1(b) above), negotiate the terms of any applicable sale, such that the Leased Property transferred to the purchaser in accordance with Section 22.1 hereof is (i) free and clear of all Liens, other than Permitted Liens described in clauses (a) or (b) of the definition thereof and (ii) (A) in the condition required by the terms of this Lease, (B) capable of operating in accordance with the purposes set forth in the Appraisal, (C) without any lessees claiming relief or exemption from judicial execution, and (D) in compliance with all Applicable Laws. Lessee, as non-exclusive selling agent, shall obtain all necessary governmental consents and approvals and make all governmental filings required by the Lessee or the Lessor in connection with any sale and grant of rights. Lessee, as non-exclusive selling agent, shall cooperate with the purchaser of the Leased Property in order to facilitate the transfers of the use, ownership and operation of the Leased Property by such purchaser after the date of the sale or transfer, including providing all books, reports and records regarding the maintenance, repair and ownership of the Leased Property and granting or assigning all licenses necessary for the operation of the Leased Property and cooperating in seeking and obtaining all necessary Governmental Actions. Lessee shall also, on the Return Date, vacate and cause any sublessee to vacate the Leased Property. As a further condition to the Lessee’s rights hereunder, the Lessee shall pay the total cost for the completion of all Alterations commenced after the Base Term Commencement Date and prior to the Return Date, and, subject to the Lessee’s right to use applicable insurance proceeds as set forth in Article XIII hereof, for the repair and rebuilding of the affected portions of the Leased Property suffering a Casualty after the Base Term Commencement Date. Such Alterations and all such repairs and rebuilding shall be completed prior to the Return Date. Unless the Lessee shall have exercised or been deemed to have exercised its Purchase Option or the Leased Property is to be sold to an independent purchaser, prior to the Return Date, the Lessee shall furnish to the Lessor and the independent purchaser hereunder a reasonably current preliminary environmental survey for the Leased Property dated no earlier than forty-five (45) days prior to the Return Date, from an environmental consultant satisfactory in the reasonable discretion of Lessor certifying that there exists no environmental

 

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contamination with respect to the Leased Property which would adversely affect the marketability, fair market value or useful life, as determined by the Appraisal, of the Leased Property or have an adverse effect on the Lessor and addressed to Lessor in form and substance satisfactory in the reasonable discretion of Lessor. The obligations of the Lessee under this Section 22.2 shall survive the expiration or termination of this Lease. Unless the Lessee shall have exercised or been deemed to have exercised its Purchase Option or the Leased Property is to be sold to an independent purchaser, the Lessor shall be entitled to perform such investigation, including obtaining reports of engineers and other experts as to the condition and state of repair and maintenance of the Improvements and the Site required by this Section 22.2 and as to the compliance of the Leased Property with Applicable Laws, including Environmental Laws, as it deems appropriate. Lessee, at its sole cost and expense (without right of reimbursement therefor out of gross sale proceeds but, subject to the Lessee’s right to use applicable insurance and condemnation proceeds as set forth in Article XIII hereof), shall cause the repair or other remediation of any discrepancies between the actual condition of the Improvements and the Site and the condition required under this Lease, such repair or remediation to be completed not later than the Return Date.

SECTION 22.3. Application of Sale Proceeds and Recourse Payments.

(a) On the Return Date, in connection with the Lessee’s exercise of the Return Option, the Lessee shall pay to the Lessor all Rent then due together with all other amounts due and payable by the Lessee to the Lessor or any Indemnitee. The Lessee also shall cause to be paid to the Lessor, from the aggregate Sale Proceeds (after application of gross sale proceeds to payment of any deed or transfer tax thereon not paid by the purchaser thereof and payment or reimbursement to the Lessee and/or the Lessor for any costs or expenses incurred by the Lessee and/or the Lessor in connection with the actions required under Sections 22.1 and 22.2, excluding any provision thereof which expressly specifies that the Lessee’s costs shall not be reimbursable out of gross sale proceeds), the aggregate outstanding Break Even Price as of the Return Date (as determined after the payment of all Rent due on such date and application of all other payments hereunder by Lessee in accordance with Section 22.3(c) hereof). If the Sale Proceeds exceed the Break Even Price as of the Return Date, the Lessee shall retain or be entitled to receive the portion of the Sale Proceeds in excess thereof. If the Sale Proceeds are less than the aggregate outstanding Break Even Price, the Lessee shall pay or shall cause to be paid to the Lessor, as Supplemental Rent, on the Return Date, in addition to the Sale Proceeds, an additional amount equal to the lesser of (x) the amount that the Break Even Price exceeds the Sale Proceeds or, (y) provided no Default or Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) has occurred and is continuing, the Recourse Deficiency Amount.

(b) The obligation of the Lessee to pay the amounts determined pursuant to Sections 22.3(a) and 22.4 shall be recourse obligations of the Lessee, and such payments by the Lessee shall not limit any other obligation of the Lessee under the Operative Documents, including pursuant to Article VII of the Participation Agreement.

(c) If on any date the Lessor shall receive any amounts that constitute payment of the Recourse Deficiency Amount and any Sale Proceeds following Lessee’s election to return or

 

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deemed election to have returned the Leased Property at the Return Date, the Lessor shall apply such amounts in the following order of priority:

first , to the Lessor, so much of such amount as is required to reimburse the Lessor for any fees, costs, expenses, Taxes or other loss incurred by it (to the extent not previously reimbursed);

second , to the Lessor, so much of such amounts as are required to pay all expenses or fees incurred by the Lessor in connection therewith including Break Funding Amounts, if any;

third , to the Lessor, so much of such amount as is required to pay all accrued Yield thereon;

fourth , to the Lessor, so much of such amounts as are required to pay in full the outstanding amount of the Lease Balance;

fifth , to the Lessor, so much of such amounts as are required to pay all outstanding obligations of Lessee pursuant to the Operative Documents including all indemnities due and payable; and

sixth , to Lessee, the balance of such amount, if any.

SECTION 22.4. Failure to Sell Leased Property.

(a) If the Leased Property shall not have been sold on or prior to the Return Date, in accordance with and subject to the provisions of this Article XXII, then the Lessee and the Lessor hereby agree as follows:

(i) the Lessee shall pay or shall cause to be paid to the Lessor, as Supplemental Rent, on the Return Date, in addition to the Sale Proceeds, an amount equal to the Recourse Deficiency Amount plus all other Rent then due under this Lease and the other Operative Documents or, in the event a Default or Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) shall have occurred and be continuing on such date, the Break Even Price and, in the case where the Break Even Price is paid, the Lessor shall convey to the Lessee or its designee the Leased Property in accordance with Section 23.11; and

(ii) at the option of the Lessor, if the Lessee has not paid the Break Even Price as set forth in Section 22.4(a)(i) above, the Lessee shall be required to continue using commercially reasonable efforts as non-exclusive agent for the Lessor to sell the Leased Property in accordance with Sections 22.1 and 22.2 for the period (the “ Extended Remarketing Period ”) commencing on the Return Date, and ending on the earliest of (w) the date occurring twenty-fourth (24 th ) months following the Return Date, (x) the sale of the Leased Property in accordance with the provisions of Sections 22.1 and 22.2 or such earlier date as the Lessor has received payment in full of the Break Even Amount, (y) the delivery of a written notice from the Lessor to the Lessee at any time terminating this

 

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Lease, which notice shall indicate that such termination is being made pursuant to this Section 22.4(a)(ii) and the date such termination shall be effective, and (z) the delivery of a written notice from the Lessee to the Lessor pursuant to which the Lessee notifies the Lessor of its election to terminate the Extended Remarketing Period. The notice given by the Lessee pursuant to Section 22.4(a)(ii)(z) shall indicate that it is being made pursuant to Section 22.4(a)(ii)(z) and shall set forth the date of termination of the Extended Remarketing Period; provided, however, in no event shall such effective date occur prior to the twenty-fourth (24 th ) month following the Return Date. On the last day of the Extended Remarketing Period, if the Leased Property has not been sold during the Extended Remarketing Period in accordance with Section 22.2, the Lessee shall also make the payments required under Section 22.4(a), to the extent not already paid under such Section. Nothing in this Section 22.4(a)(ii) shall adversely affect any other rights the Lessor may have to terminate this Lease pursuant to any other Section of this Lease or the Lessor’s right to pursue any remedy hereunder as a result of an Event of Default arising as a result of the Lessee’s failure to comply with the requirements set forth herein including pursuant to Article XVII or the Lessee’s obligation to pay amounts arising under Article VII of the Participation Agreement.

(b) Following the expiration of the Extended Remarketing Period (or, if not so extended by Lessor, following the Return Date) and the absence of any sale of the Leased Property, the Lessor and Lessee will use commercially reasonable efforts to agree upon the Fair Market Value of the Leased Property. If the Lessor and Lessee are unable to agree upon the Fair Market Value of the Leased Property, Lessor shall order a valuation of the Fair Market Value of the Leased Property. Promptly after receipt of such valuation which establishes the Fair Market Value of Leased Property, Lessor shall pay to Lessee an amount equal to the lesser of (A) the Recourse Deficiency Amount paid by the Lessee in accordance with the Section 22.4(a)(i) and (B) the amount by which the Fair Market Value of the Leased Property exceeds the remaining Break Even Price, less any Force Majeure Losses (the lower of (A) and (B) being the “ Expiration True-Up ”).

(c) The Lessor may sell or lease the Leased Property and the Lessor’s other interest in and to the Leased Property to any third party at such reasonable times and for such amounts as the Lessor deems commercially reasonable and appropriate in order to maximize the Lessor’s opportunity to recover the Lease Balance. If the Lessee returns the Leased Property to the Lessor in accordance with this Section 22.4 and, following the expiration of the Extended Remarketing Period, the Lessor subsequently sells the Leased Property for cash Sale Proceeds, Sale Proceeds shall be applied by the Lessor in the following order of priority:

(i) first , to the Lessor, Sale Proceeds shall be applied to any fees, costs, expenses, Taxes or other loss incurred by it (to the extent not previously reimbursed);

(ii) second , to the Lessor, Sale Proceeds shall be applied to the Lease Balance until the Lease Balance (excluding Force Majeure Losses, if any) is paid in full ( provided that , all costs and expenses arising from or related to the Leased Property which accrue after the later of the Return Date and the date the Lessee ceases to occupy the Leased Property shall be excluded from the Lease Balance for purposes of this Section 22.4(c)(ii));

 

34


(iii) third , to the Lessee, Sale Proceeds shall be applied to the Recourse Deficiency Amount ( less the Expiration True-Up), if any, to the extent such amounts were paid by the Lessor to the Lessee in accordance with Section 22.4(b);

(iv) fourth , to the Lessor, Sale Proceeds shall be applied to Force Majeure Losses and, to the extent not previously paid to the Lessor pursuant to clause (i) or clause (ii) above, to any other amounts payable to the Lessor pursuant to any expense reimbursement or indemnification by the Lessee pursuant to the provisions of the Operative Documents;

(v) fifth , to the Lessor, Sale Proceeds shall be applied to any costs or expenses excluded from the Lease Balance as a result of the proviso in Section 22.4(c)(ii) above;

(vi) sixth , to the Lessor, Sale Proceeds shall be applied to all other amounts, if any, payable by the Lessee to the Lessor under the Operative Documents, to the extent not previously paid to the Lessor pursuant to clauses (i), (ii), (iv) or (v) above; and

(vii) seventh , to the Lessee, the balance, if any, of any Sale Proceeds shall be distributed to, or as directed by, the Lessee.

(d) The Lessor’s appointment of the Lessee as the Lessor’s non-exclusive agent to use commercially reasonable efforts to obtain the highest all-cash price for the purchase of the Leased Property and the Lessor’s interest in the Leased Property shall not restrict the Lessor’s right to market or lease the Leased Property and the Lessor’s interest in the Leased Property or to retain one or more sales agents or brokers (with the costs and expenses thereof being paid out of the Sale Proceeds, as provided in Sections 22.1(a) and 22.3(a) hereof).

(e) the Lessor reserves all rights under this Lease and the other Operative Documents arising out of the Lessee’s breach of any provisions of this Lease (including this Article XXII), whether occurring prior to, on or after the Return Date, including the Lessee’s breach of any of its obligations under this Article XXII, including the right to sue the Lessee for damages.

(f) To the greatest extent permitted by Applicable Law, the Lessee hereby unconditionally and irrevocably waives, and releases the Lessor from, any right to require the Lessor at any time prior to the Return Date or the expiration of the Extended Remarketing Period, as applicable, to market the Leased Property and the Lessor’s other interest in and to the Leased Property at all or for any minimum purchase price or on any particular terms and conditions, the Lessee hereby agrees that if the Lessee shall elect or shall be deemed to have elected the Return Option, its ability to sell the Leased Property and the Lessor’s other interest in and to the Leased Property on or prior to the Return Date, and to cause any Person to submit a bid to the Lessor pursuant to Section 22.1 shall constitute full and complete protection of the Lessee’s interest hereunder.

(g) During the period following Lessee’s exercise of the Return Option, the obligation of Lessee to pay Rent with respect to the Leased Property (including the installment of Rent due on the Return Date) shall continue undiminished; provided that such amounts subsequent to the Return Date (assuming the Lessee has returned the property to the Lessor)

 

35


shall accrue and be payable out of the Sale Proceeds of any sale in accordance with Section 22.4(c)(v).

SECTION 22.5. Surrender and Return.

(a) Upon the expiration or earlier termination of the Lease Term, and provided that Lessee, if so entitled, has not exercised its option to purchase the Leased Property, Lessee shall peaceably leave and surrender and return the Leased Property to Lessor in the same condition in which the Leased Property existed on the Closing Date and such subsequent date on which any Alterations that constitute part of the Improvements were constructed, except as completed, repaired, rebuilt, restored, altered or added to as required by or permitted by any provision of this Lease (ordinary wear and tear excepted). Lessee shall remove from the Leased Property on or prior to such expiration or earlier termination all property situated thereon which is not the property of Lessor and the Leased Property shall be broom clean and Lessee shall repair any damage caused by such removal. Property not so removed shall become the property of Lessor and Lessor may cause such property to be removed from the Leased Property and disposed of, and Lessee shall pay (without right of reimbursement out of gross sale proceeds) the reasonable cost of any such removal and disposition and of repairing any damage caused by such removal.

(b) Except for surrender upon the expiration or earlier termination of the Lease Term hereof, no surrender to Lessor of this Lease or of the Leased Property shall be valid or effective unless agreed to and accepted in writing by Lessor.

(c) Without limiting the generality of the foregoing, upon the surrender and return of the Leased Property to Lessor pursuant to this Section 22.5, the Leased Property shall be (w) capable of being immediately utilized by a third-party purchaser or third-party lessee without further inspection, repair, replacement, alterations or improvements, licenses, permits, or approvals, except for any of the foregoing required solely by virtue of the change in ownership (other than to Lessor), use or occupancy of the Leased Property, (x) in compliance with all Applicable Laws including any of the foregoing required by virtue of a change in ownership, use or occupancy of the Leased Property other than to or by Lessee, (y) subject to any Shared Use Agreement, Appurtenant Rights and Restrictions or other cross easement agreement as may be necessary to comply with Applicable Laws, to make any such property marketable and to increase the aggregate value of the Leased Property and the other Sites, and (z) free and clear of any Lien. Until the Leased Property has been surrendered and returned to Lessor in accordance with the provisions of this Section 22.5, Lessee shall continue to pay Lessor all Rent due hereunder.

(d) Lessee acknowledges and agrees that a breach of any of the provisions of this Section 22.5 may result in damages to Lessor that are difficult or impossible to ascertain and that may not be compensable at law. Accordingly, upon application to any court of equity having jurisdiction over the Leased Property or the Lessee, Lessor shall be entitled to a decree against Lessee requiring specific performance of the covenants of Lessee set forth in this Section 22.5.

(e) Upon the request of the Lessor, Lessee shall continue to maintain its insurance policies for the Leased Property, to the extent permitted by such policies, provided that Lessor pays or reimburses Lessee for the pro rata cost thereof.

 

36


ARTICLE XXIII

MISCELLANEOUS

SECTION 23.1. Binding Effect; Successors and Assigns; Survival.

The terms and provisions of this Lease, and the respective rights and obligations hereunder of the Lessor and the Lessee shall be binding upon them and their respective successors, legal representatives and assigns (including, in the case of the Lessor, any Person to whom the Lessor may transfer the Leased Property or any interest therein in accordance with the provisions of the Operative Documents), and inure to their benefit and the benefit of their respective permitted successors, legal representatives and assigns (including, in the case of the Lessor, any Person to whom the Lessor may transfer the Leased Property or any interest therein in accordance with the provisions of the Operative Documents).

SECTION 23.2. Severability.

Any provision of this Lease that shall be prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction, and the Lessee shall remain liable to perform its obligations hereunder except to the extent of such unenforceability. To the extent permitted by Applicable Laws, the Lessee hereby waives any provision of law that renders any provision hereof prohibited or unenforceable in any respect.

SECTION 23.3. Notices.

Unless otherwise specified herein, all notices, requests, demands or other communications to or upon the respective parties hereto shall be in writing and shall be delivered and shall be deemed to have been given in accordance with Section 8.3 of the Participation Agreement.

SECTION 23.4. Amendment; Complete Agreements.

Neither this Lease or any other Operative Document nor any terms hereof or thereof may be amended, supplemented or modified except in accordance with the provisions of the Participation Agreement. This Lease, together with the other Operative Documents, is intended by the parties as a final expression of their agreement and as a complete and exclusive statement of the terms thereof, all negotiations, considerations and representations between the parties having been incorporated herein and therein. No course of prior dealings between the parties or their officers, employees, agents or Affiliates shall be relevant or admissible to supplement, explain, or vary any of the terms of this Lease or any other Operative Document. Acceptance of, or acquiescence in, a course of performance rendered under this or any prior agreement between the parties or their Affiliates shall not be relevant or admissible to determine the meaning of any of the terms of this Lease or any other Operative Document. No representations, undertakings, or agreements have been made or relied upon in the making of this Lease other than those specifically set forth in the Operative Documents.

 

37


SECTION 23.5. Headings.

The Table of Contents and headings of the various Articles and Sections of this Lease are for convenience of reference only and shall not modify, define or limit any of the terms or provisions hereof.

SECTION 23.6. Original Executed Counterpart.

The single executed original of this Lease marked as Counterpart No. 1 shall be the “ original executed counterpart ” of this Lease. To the extent that this Lease constitutes chattel paper, as such term is defined in the Uniform Commercial Code as in effect in any applicable jurisdiction, no security interest in this Lease may be created through the transfer or possession of any counterpart other than the “ original executed counterpart .”

SECTION 23.7. Governing Law.

This Lease has been delivered in, and shall in all respects be governed by and construed in accordance with the laws of, the State of New York, without regard to conflicts of laws principles (except Section 5-1401 of the New York General Obligations Law), including all matters of construction, validity and performance, except as to matters relating to the perfection of the security interests hereunder and the exercise of rights and remedies with respect thereto, which shall be governed by and construed in accordance with the laws of the State of California.

SECTION 23.8. No Joint Venture.

Any intention to create a joint venture or partnership relation hereunder or pursuant to any other Operative Document between the Lessor and the Lessee is hereby expressly disclaimed.

SECTION 23.9. No Accord and Satisfaction.

The acceptance by the Lessor of any sums from the Lessee (whether as Basic Rent or otherwise) in amounts which are less than the amounts due and payable by the Lessee hereunder is not intended, nor shall be construed, to constitute an accord and satisfaction of any dispute between the Lessor and the Lessee regarding sums due and payable by the Lessee hereunder, unless the Lessor specifically deems it as such in writing.

SECTION 23.10. Survival.

The termination of this Lease pursuant to Section 18.1 shall in no event relieve the Lessee of its liabilities and obligations hereunder which accrued prior to such termination, all of which shall survive any such termination. The extension of any applicable statute of limitations by the Lessee, the Lessor or any other Indemnitee shall not affect such survival.

SECTION 23.11. Transfer of Leased Property.

Except as may be applicable under Article XXII, any transfer of the Leased Property pursuant to this Lease shall be at the Lessee’s expense. Upon receipt by the Lessor of payment

 

38


in full of the Break Even Price pursuant to the applicable provision of this Lease, the Leased Property shall be transferred to the Lessee or any designee it may identify.

Any transfer of the Lessor’s interest in and to the Leased Property pursuant to this Lease shall be transferred on an “as is, where is, with all faults” basis, without covenants or warranties of title and without recourse, representation or warranty of any kind, other than with respect to the Lessor, the absence of Lessor Liens, and together with the due assumption by the Lessee (or its designee), of, and due release of the Lessor from, all obligations relating to the Leased Property. In connection with any transfer to an independent third party, the Lessee shall, or shall ensure that its designee shall, execute and deliver such documents, certificates and estoppels as may be required to facilitate the transfer of the Leased Property. Any provision in this Lease or other Operative Document to the contrary notwithstanding, no transfer of the Leased Property to the Lessee or to a third party buyer pursuant to the Return Option shall be made until the Lessor has received all Rent and other amounts then due and owing by the Lessee hereunder and under the other Operative Documents. At or subsequent to the transfer or return of all or any of the Leased Property to a third party buyer pursuant to the Return Option, the Lessee will provide the Lessor with such lien and title searches as the Lessor may reasonably request to demonstrate to the Lessor’s satisfaction that the Leased Property is subject to no liens other than Permitted Liens as described in clauses (a) or (b) of the definition thereof. Notwithstanding anything contained herein or in the other Operative Documents to the contrary, any obligation of the Lessor to transfer any assets to the Lessee shall be satisfied by a transfer of such assets to any designee selected by it.

SECTION 23.12. Enforcement of Certain Warranties.

Unless an Event of Default shall have occurred and be continuing, the Lessor authorizes the Lessee (directly or through agents), without assuming any responsibility for the existence of such warranty or the validity of the authorization granted hereunder at the Lessee’s expense, to assert, during the Lease Term, all of the Lessor’s rights (if any) under any applicable warranty and any other claim that the Lessee or the Lessor may have under the warranties provided in connection with the Improvements and the Lessor agrees to cooperate, at the Lessee’s expense, with the Lessee and its agents in asserting such rights. Any amount recovered by the Lessee under any such warranties shall be retained by or paid over to the Lessee, subject to Section 23.13.

SECTION 23.13. Security Interest in Funds.

As long as a Material Default or Event of Default shall have occurred and be continuing, any amount that would otherwise be payable to the Lessee under the Operative Documents shall be paid to or retained by the Lessor (including amounts to be paid to the Lessee pursuant to Article XIII or Section 23.12) as security for the performance by the Lessee in full of its obligations under this Lease and the other Operative Documents and, provided an Event of Default exists, it may be applied to the obligations of the Lessee hereunder and under the other Operative Documents and distributed pursuant to Section 18.2. At such time as no Material Default or Event of Default shall be continuing, such amounts, net of any amounts previously applied to the Lessee’s obligations hereunder or under any other Operative Documents, shall be paid to the Lessee. Any such amounts which are held pending payment to the Lessee or

 

39


application hereunder shall be invested by the Lessor as directed from time to time in writing by the Lessee, and at the expense and risk of the Lessee, in Permitted Investments. Any gain (including interest received) realized as the result of any such investment (net of any fees, commissions and other expenses, if any, incurred in connection with such investment) shall be applied from time to time in the same manner as the principal invested. Lessor shall not be liable for any losses on such investments or for any failure to make any investment,

SECTION 23.14. Submission to Jurisdiction.

EACH OF THE LESSOR AND THE LESSEE IRREVOCABLY AND UNCONDITIONALLY:

(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS LEASE, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, AND APPELLATE COURTS FROM ANY THEREOF;

(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDINGS MAY BE BROUGHT TO SUCH COURTS, AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND AGREES NOT TO PLEAD OR CLAIM THE SAME;

(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS SET FORTH ON SCHEDULE II TO THE PARTICIPATION AGREEMENT OR AT SUCH OTHER ADDRESS OF WHICH THE OTHER PARTIES HERETO SHALL HAVE BEEN NOTIFIED PURSUANT TO SECTION 8.3 OF THE PARTICIPATION AGREEMENT; AND

(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION.

SECTION 23.15. Jury Trial.

EACH OF THE LESSOR AND THE LESSEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS LEASE OR ANY OTHER OPERATIVE DOCUMENT OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS LEASE OR ANY OTHER

 

40


OPERATIVE DOCUMENT AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.

SECTION 23.16. Payments.

All payments to be made by the Lessee hereunder shall be made to the Lessor in Dollars in immediately available and freely transferable funds at the place of payment, all such payments to be paid without setoff, counterclaim or reduction and without deduction for, and free from, any and all present or future taxes, levies, imposts, duties, fees, charges, deductions, withholding or liabilities with respect thereto or any restrictions or conditions of any nature. If the Lessee is required by law to make any deduction or withholding on account of any tax or other withholding or deduction from any sum payable by the undersigned hereunder, the Lessee shall pay any such tax or other withholding or deduction and shall pay such additional amount necessary to ensure that, after making any payment, deduction or withholding, the Lessor shall receive and retain (free of any liability in respect of any payment, deduction or withholding) a net sum equal to what it would have received and so retained hereunder had no such deduction, withholding or payment been required to have been made, which payment or withholding is made subject to the limitations set forth in Sections 7.2(a)(iii) and 7.4 of the Participation Agreement, reimbursement obligations of Indemnitees set forth in Sections 7.2(a)(iii), 7.2(e) and 7.2(f) of the Participation Agreement and other rights of Lessee set forth in Sections 7.2(b)(i), 7.2(e), 7.2(f) and 7.4 of the Participation Agreement.

[Signature Pages Follow]

 

41


IN WITNESS WHEREOF, the undersigned have each caused this Lease to be duly executed and delivered by their respective representations thereunto duly authorized as of the day and year first above written.

 

BTMU CAPITAL LEASING & FINANCE, INC.,
AS L ESSOR
By:  

/s/ Michael D. Doyle

Name:   Michael D. Doyle
Title:   President

[THIS IS COUNTERPART NO.      OF      ORIGINALLY

EXECUTED COUNTERPARTS]


LAM RESEARCH CORPORATION,
AS L ESSEE
By:  

/s/ Odette Go

Name:   Odette Go
Title:   Treasurer

[THIS IS COUNTERPART NO.      OF      ORIGINALLY

EXECUTED COUNTERPARTS]


Schedule A

Recourse Deficiency Amount Percentages

Recourse Deficiency Amount for Port 101: 87.8%.


Exhibit A

Description of Site

Real property in the City of Livermore, County of Alameda, State of California, described as follows:

ALL OF PARCEL 7 AS SAID PARCEL IS SHOWN AND SO DESIGNATED ON THE PARCEL MAP 7341 FILED FOR RECORD IN THE OFFICE OF THE COUNTY RECORDER OF ALAMEDA COUNTY IN BOOK 268 OF PARCEL MAPS AT PAGE 85, TOGETHER WITH A PORTION OF PARCEL 14 AS SAID PARCEL IS SHOWN AND SO DESIGNATED ON THE MAP OF TRACT 7610 FILED FOR RECORD IN THE OFFICE OF THE COUNTY RECORDER OF ALAMEDA COUNTY IN BOOK 293 OF MAPS AT PAGE 14, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

BEGINNING AT THE MOST SOUTHERLY CORNER COMMON TO SAID PARCEL 7 AND PARCEL 14;

THENCE ALONG THE BOUNDARY LINE OF SAID PARCEL 7 THE FOLLOWING TEN (10) COURSES

1. WESTERLY ALONG A NON-TANGENT 1278.00 FOOT RADIUS CURVE TO THE RIGHT FROM WHICH THE CENTER OF SAID CURVE BEARS NORTH 05° 41’ 02” EAST, THROUGH A CENTRAL ANGLE OF 3° 38’ 58” AN ARC DISTANCE OF 81.402 FEET;

2. ALONG A REVERSE 1022.00 FOOT RADIUS CURVE TO THE LEFT FROM WHICH THE CENTER OF SAID CURVE BEARS SOUTH 09° 20’ 00” WEST, THROUGH A CENTRAL ANGLE OF 9° 20’ 00” AN ARC DISTANCE OF 166.481 FEET;

3. WEST, 284.906 FEET;

4. NORTH, 666.259 FEET;

5. EASTERLY ALONG A NON-TANGENT 1452.00 FOOT RADIUS CURVE TO THE LEFT FROM WHICH THE CENTER OF SAID CURVE BEARS NORTH 01° 01’ 32” EAST, THROUGH A CENTRAL ANGLE OF 15° 46’ 40” AN ARC DISTANCE OF 399.843 FEET;

6. ALONG A REVERSE 29.00 FOOT RADIUS CURVE TO THE RIGHT FROM WHICH THE CENTER OF SAID CURVE BEARS SOUTH 14° 45’ 08” EAST, THROUGH A CENTRAL ANGLE OF 36° 52’ 16” AN ARC DISTANCE OF 18.662 FEET;

7. ALONG A REVERSE 21.00 FOOT RADIUS CURVE TO THE LEFT FROM WHICH THE CENTER OF SAID CURVE BEARS NORTH 22° 07’ 08” EAST, THROUGH A CENTRAL ANGLE OF 36° 52’ 16” AN ARC DISTANCE OF 13.514 FEET;

8. NORTH 75° 14’ 52” EAST, 30.267 FEET;

 

Sch. 2-1


9. SOUTH 14° 45’ 08” EAST, 77.744 FEET; AND

10. SOUTH, 2.171 FEET,

THENCE LEAVING SAID BOUNDARY LINE OF PARCEL 7, EAST, 26.510 FEET;

THENCE SOUTH, 22.517 FEET;

THENCE EAST, 17.000 FEET;

THENCE SOUTH, 130.001 FEET;

THENCE WEST 27.000 FEET;

THENCE SOUTH, 222.595 FEET;

THENCE EAST, 44.018 FEET;

THENCE SOUTH, 250.002 FEET;

THENCE WEST, 5.526 FEET TO A POINT ON THE EASTERLY LINE OF SAID PARCEL 7;

THENCE ALONG SAID EASTERLY LINE SOUTH, 41.262 FEET TO THE POINT OF BEGINNING.

Exhibit 10.18

101 Portolo Avenue         

PLEDGE AGREEMENT

(Port 101)

BETWEEN

LAM RESEARCH CORPORATION

(“LRC”)

AND

BTMU CAPITAL LEASING & FINANCE, INC.

(“BTMUCLF”)

December 31, 2013


TABLE OF CONTENTS

 

              Page  

1.

 

DEFINITIONS AND INTERPRETATION

     2   
  (A)   

Definitions

     2   
  (B)   

Rules of Interpretation

     8   
  (C)   

Attachments

     8   

2.

 

PLEDGE AND GRANT OF SECURITY INTEREST

     9   

3.

 

PROVISIONS CONCERNING THE DEPOSIT TAKERS

     9   
  (A)   

Deposit Taker Agreements

     9   
  (B)   

Qualification of Deposit Takers Generally

     10   
  (C)   

Substitutions for Disqualified Deposit Takers

     10   
  (D)   

Other Voluntary Substitutions of Deposit Takers

     10   
  (E)   

Delivery of Deposit Taker’s Agreements by LRC and BTMUCLF

     11   
  (F)   

Constructive Possession of Collateral

     11   
  (G)   

Attempted Setoff by Deposit Taker

     11   

4.

 

DELIVERY AND MAINTENANCE OF COLLATERAL

     11   
  (A)   

Delivery of Cash Collateral by LRC

     12   
  (B)   

Status of the Deposit Accounts Under the Reserve Requirement Regulations

     12   
  (C)   

Acknowledgment by LRC that Requirements of this Agreement are Commercially Reasonable

     12   

5.

 

WITHDRAWAL OF COLLATERAL

     12   
  (A)   

Withdrawal of Cash Collateral Upon the Occurrence and During the Continuance of an Event of Default

     12   
  (B)   

Withdrawal and Application of Cash Collateral to Reduce or Satisfy the Secured Obligations to BTMUCLF

     12   
  (C)   

Withdrawal and Return of Cash Collateral Following Satisfaction of all Secured Obligations

     13   
  (D)   

No Other Right to Require or Make Withdrawals

     13   
  (E)   

BTMUCLF’s Covenant Not to Make Unauthorized Withdrawals

     13   

6.

 

REPRESENTATIONS AND COVENANTS OF LRC

     13   
  (A)   

Representations of LRC

     13   
  (B)   

Covenants of LRC

     15   

7.

 

AUTHORIZED ACTION BY BTMUCLF

     16   

 

-i-


TABLE OF CONTENTS

(continued)

 

              Page  

8.

 

DEFAULT AND REMEDIES

     16   
 

(A)

  

Remedies

     16   
 

(B)

  

Recovery Not Limited

     18   

9.

 

MISCELLANEOUS

     19   
 

(A)

  

Payments by LRC to BTMUCLF

     19   
 

(B)

  

Payments by BTMUCLF to LRC

     19   
 

(C)

  

Cumulative Rights, etc.

     19   
 

(D)

  

Survival of Agreements

     20   
 

(E)

  

Other Liable Party

     20   
 

(F)

  

Termination

     20   

 

-ii-


PLEDGE AGREEMENT

(PORT 101)

This PLEDGE AGREEMENT (Port 101) (this “ Agreement ”), dated as of December 31, 2013 (the “ Effective Date ”), is made by and between BTMU CAPITAL LEASING & FINANCE, INC. (“ BTMUCLF ”), a Delaware corporation, and LAM RESEARCH CORPORATION (“ LRC ”), a Delaware corporation.

RECITALS

A. LRC, as lessee, and BTMUCLF, as lessor, are parties to that certain Amended and Restated Lease Agreement (Port 101), dated of even date herewith (as amended, supplemented or otherwise modified from time to time pursuant thereto, the “Lease” ), pursuant to which the Lessee has agreed to lease from the Lessor, and the Lessor has agreed to lease to the Lessee, the Leased Property described therein.

B. LRC and BTMUCLF are also parties to that certain Participation Agreement, dated of even date herewith (as amended, supplemented or otherwise modified, the “ Participation Agreement ”) pursuant to which BTMUCLF commits to advance funds for the acquisition of Site Port 101 and the Existing Improvements thereon and the Personal Property used thereon subject to the terms and conditions set forth therein.

C. By this Agreement, BTMUCLF and LRC desire to establish the terms and conditions upon which LRC is pledging cash collateral for its obligations to BTMUCLF under the Lease and the Participation Agreement.

AGREEMENTS

 

1. DEFINITIONS AND INTERPRETATION.

(A) Definitions . As provided in the recitals above, all capitalized terms used in this Agreement which are defined in the Participation Agreement and not otherwise defined herein shall have the same meanings herein as set forth in Appendix I to the Participation Agreement. All terms used in this Agreement which are defined in the UCC and not otherwise defined herein shall have the same meanings herein as set forth therein, except where the context otherwise requires. As used in this Agreement, the following terms shall have the following respective meanings:

Account Office ” means, with respect to any Deposit Account maintained by any Deposit Taker, the office of such Deposit Taker in California or New York at which such Deposit Account is maintained as specified in the applicable Deposit Taker’s Agreement.

BTMU ” means The Bank of Tokyo-Mitsubishi UFJ, Ltd.

BTMU Downgrade Event ” means BTMU or any successor of BTMU fails to maintain a debt rating of at least (i) BBB- (in the case of long term debt) by Standard and Poor’s Corporation (the “S&P Rating” ), and (ii) Baa3 (in the case of long term debt) by

 

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Moody’s Investor Service, Inc. (the “Moody Rating” ) and LRC shall elect to require that the Collateral held by BTMU to be transferred to an Eligible Deposit Taker pursuant to Section 3(C) hereof, provided that (i) such transferee shall satisfy the requirements of an Eligible Deposit Taker and (ii) LRC, Lessor and such replacement Eligible Deposit Taker have entered into a control agreement in form reasonably acceptable to all parties thereto. The parties hereto believe that it is improbable that the ratings systems used by Standard and Poor’s Corporation and by Moody’s Investor Service, Inc. will be discontinued or changed, but if such ratings systems are discontinued or changed, LRC shall be entitled to select and use a comparable ratings systems as a substitute for the S&P Rating or the Moody Rating, as the case may be, for purposes of determining the status of BTMU or such successor as an Eligible Deposit Taker.

BTMUCLF ” shall have the meaning given to that term in the introductory paragraph hereof.

Cash Collateral ” means (i) all money of LRC which LRC delivers to BTMUCLF or as directed by it for deposit in the Deposit Accounts maintained by the Deposit Takers pursuant to this Agreement, and (ii) all amounts on deposit in any of the Deposit Accounts from time to time, which have not been withdrawn or applied to Secured Obligations as provided in this Agreement.

Clearing System ” means the Depository Trust Company (“DTC”) and such other clearing or safekeeping system that may from time to time be used in connection with transactions relating to or the custody of any Securities, and any depository for any of the foregoing.

Collateral ” has the meaning indicated in Paragraph 2.

“Control Agreement” means any future blocked account control agreement that may be used by a Deposit Taker following any credit impairment as provided in the definition of Eligible Deposit Taker.

“Default” means any Event of Default and any default, event or condition which would, with the giving of any requisite notices and the passage of any requisite periods of time, constitute an Event of Default.

“Deposit Account” means a deposit account maintained by any Deposit Taker into which Cash Collateral has been or may in the future be deposited as provided in this Agreement.

“Deposit Taker” means, for BTMUCLF or any Participant, an Eligible Deposit Taker designated by it to act as the Deposit Taker for it under this Agreement. BTMUCLF has already designated BTMU as the Deposit Taker for BTMUCLF hereunder. Any Participant which is an Eligible Deposit Taker will be deemed to have designated itself to act as the Deposit Taker for it, unless some other designation is expressly set forth in this Agreement. Any Participant which is not an Eligible Deposit Taker will be expected to designate BTMU or, to the extent BTMU is not an Eligible Deposit Taker, another Person

 

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which is an Eligible Deposit Taker (as reasonably approved by LRC) prior to any delivery of Cash Collateral by LRC pursuant to this Agreement. It is also understood, however, that each of BTMUCLF and any Participants, for itself only, may from time to time designate another Eligible Deposit Taker (as reasonably approved by LRC) as provided in subparagraphs 3(C) and 3(D) below.

“Deposit Taker Prerequisites” means, with respect to any Deposit Taker: (1) the requirement that such Deposit Taker establish a Deposit Account and provide to LRC and BTMUCLF the account number and other information regarding such Deposit Account which they must have to complete and submit a Deposit Taker’s Agreement covering such Deposit Account; and (2) the requirement that such Deposit Taker accept, execute and return a Deposit Taker’s Agreement covering each Deposit Account to be maintained by such Deposit Taker. It is understood that any Deposit Taker’s refusal or failure to satisfy the Deposit Taker Prerequisites will cause it to be a Disqualified Deposit Taker.

“Deposit Taker’s Agreement” means a completed Deposit Agreement in the form attached as Exhibit A , which specifically identifies a Deposit Account in which a Deposit Taker shall hold Cash Collateral delivered to it pursuant to this Agreement.

“Disqualified Deposit Taker” means any Person that BTMUCLF or any Participant has designated as a Deposit Taker, but that has not satisfied or no longer satisfies the following requirements:

(a) With respect to each Deposit Account in which such Person holds or will hold Collateral delivered to it pursuant to this Agreement, such Person must have received from BTMUCLF and LRC an executed Deposit Taker’s Agreement which specifically identifies such Deposit Account and which designates, at such Person’s election, an Account Office with respect to such Deposit Account in New York or California.

(b) Such Person must have executed and returned to BTMUCLF a Deposit Taker’s Agreement with respect to each such Deposit Account and must have complied with its Deposit Taker’s Agreements, and the representations set forth therein with respect to such Person must continue to be true and correct (except that such Person will not become a Disqualified Deposit Taker because of its failure to comply with its Deposit Taker’s Agreement, or because any such representation does not continue to be true and correct, if such failure is cured and all such representations are made true and correct in all material respects before the earlier of (i) thirty days after the Deposit Taker is notified thereof, and (ii) any date upon which BTMUCLF’s security interest in any Collateral maintained or held by such Deposit Taker is not a Qualified Pledge by reason of such failure to comply or such representation not being true and correct). Such Person must have complied in all material respects with the provisions in this Agreement applicable to Deposit Takers.

 

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(c) Such Person must be an Eligible Deposit Taker.

“Eligible Deposit Taker” means:

(1) (a) BTMU or any successor of BTMU, acting through any branch, office or agency in New York or California that can lawfully maintain a Deposit Account as a Deposit Taker hereunder so long as no BTMU Downgrade Event shall occur or (b) Union Bank, N.A. or any successor of Union Bank, N.A., acting through any branch, office or agency in New York or California that can lawfully maintain a Deposit Account as a Deposit Taker hereunder so long as no Union Bank Downgrade Event shall occur;

(2) any Participant or Affiliate of a Participant that is (a) a commercial bank, organized under the laws of the United States of America or a state thereof or under the laws of another country which is doing business in the United States of America, (b) authorized to maintain deposit accounts for others through Account Offices in New York or California (as specified in its Deposit Taker’s Agreement) so long as no Participant Downgrade Event shall occur; or

(3) such Person that (a) has been designated by BTMUCLF or a Participant to act as the Deposit Taker for it under this Agreement, (b) is one of the fifty largest (measured by total assets) U.S. banks, or one of the one hundred largest (measured by total assets) banks in the world, (c) is acting through any branch, office or agency in New York or California that can lawfully maintain a Deposit Account as a Deposit Taker hereunder, and (d) has a debt ratings of at least (i) A- (in the case of long term debt) and A-1 (in the case of short term debt) or the equivalent thereof by Standard and Poor’s Corporation (the “S&P Rating” ), and (ii) A3 (in the case of long term debt) and P-1 (in the case of short term debt) or the equivalent thereof by Moody’s Investor Service, Inc. (the “Moody Rating” ), the parties hereto believing that it is improbable that the ratings systems used by Standard and Poor’s Corporation and by Moody’s Investor Service, Inc. will be discontinued or changed, but if such ratings systems are discontinued or changed, LRC shall be entitled to select and use a comparable ratings systems as a substitute for the S&P Rating or the Moody Rating, as the case may be, for purposes of determining the status of any bank as an Eligible Deposit Taker.

If at any time a Deposit Taker fails to satisfy the requirements of this definition above, such Deposit Taker shall cease being an Eligible Deposit Taker and LRC may, at its option, require that the Collateral held by such ineligible Deposit Taker be transferred to an Eligible Deposit Taker, provided that (i) such Eligible Deposit Taker satisfies the requirements of this definition above and (ii) LRC, Lessor and such replacement Eligible Deposit Taker have entered into a control agreement in form reasonably acceptable to all parties thereto.

 

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“Event of Default” means the occurrence of any of the following:

(a) an Event of Default as defined in the Lease;

(b) any failure by LRC to provide funds as and when required by subparagraph 4(A) of this Agreement or under the Deposit Taker’s Agreement, on the date due;

(c) the failure of the pledge or security interest contemplated herein in any Deposit Account or Cash Collateral to be a Qualified Pledge (regardless of the characterization of any Deposit Accounts or Cash Collateral as deposit accounts, instruments or general intangibles under the UCC); unless, within five days after LRC becomes aware of such failure, LRC both (1) notifies BTMUCLF of such failure, and (2) cures such failure;

(d) the failure of any representation herein by LRC to be true (other than a failure described in another clause of this definition of Event of Default) and LRC and LRC shall fail to cure the underlying facts causing such representation, warranty, certification or statement to be incorrect in all material respects for a period of ten (10) Business Days after the earlier of Actual Knowledge or notice thereof;

(e) the failure of any representation made by LRC in subparagraph 6(A)(1) to be true, if within fifteen days after LRC becomes aware of such failure, LRC does not (1) notify BTMUCLF of such failure, and (2) cure such failure; and

(f) the failure by LRC timely and properly to observe, keep or perform any covenant, agreement, warranty or condition herein required to be observed, kept or performed (other than a failure described in another clause of this definition of Event of Default), if diligent efforts are not being taken by LRC to cure such Default and such failure is not cured within thirty (30) days after the earlier of Actual Knowledge thereof by LRC or receipt of written notice thereof; provided, however, that if such failure is capable of cure but cannot be cured by payment of money or cannot be cured by diligent efforts within such thirty (30) day period but such diligent efforts shall be properly commenced within such thirty (30) day period and LRC is diligently pursuing, and shall continue to pursue diligently remedy of such failure, such cure period shall be extended for an additional period of time in excess of such cure period as may be necessary to cure, not to extend beyond the earlier to occur of (i) the Lease Expiration Date or (ii) one hundred and twenty (120) days after the earlier of Actual Knowledge thereof or written notice thereof having been given to LRC.

“Lien” means, with respect to any property or assets, any right or interest therein of a creditor to secure indebtedness or other obligations of any kind which is owed to him or any other arrangement with such creditor which provides for the payment of such indebtedness or obligations out of such property or assets or which allows him to have such indebtedness or obligations satisfied out of such property or assets prior to the general creditors of any owner thereof, including any lien, mortgage, security interest, pledge,

 

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deposit, production payment, rights of a vendor under any title retention or conditional sale agreement or lease substantially equivalent thereto, tax lien, mechanic’s or materialman’s lien, or any other charge or encumbrance for security purposes, whether arising by law or agreement or otherwise, but excluding any right of setoff which arises without agreement in the ordinary course of business. “Lien” also means any filed financing statement, any registration with an issuer of uncertificated securities, or any other arrangement which would serve to perfect a Lien described in the preceding sentence, regardless of whether such financing statement is filed, such registration is made, or such arrangement is undertaken before or after such Lien exists.

Make Whole Amount ” means the sum of the following:

(1) the amount (if any) by which the Lease Balance exceeds any Recourse Deficiency Amount which was actually received by BTMUCLF on the Base Term Expiration Date in accordance with Articles XXI and XXII of the Lease, together with interest on such excess computed at the Overdue Rate for the period commencing on the Base Term Expiration Date and ending on the date of an Expiration True-Up; plus

(2) any unpaid Base Rent or other amounts due to BTMUCLF pursuant to the Lease or other Operative Documents (except pursuant to Other Lease Documents); plus

(3) BTMUCLF’s Transaction Costs; plus

(4) the amount, but not less than zero, by which (i) all Taxes, insurance premiums and other Claims of every kind suffered or incurred by BTMUCLF (whether or not reimbursed in whole or in part by another Person) with respect to the ownership, operation or maintenance of the Leased Property during the Extended Remarketing Period, exceeds (ii) any rents or other sums collected by BTMUCLF during such period from third parties as consideration for any lease or other contracts made by BTMUCLF that authorize the use and enjoyment of the Leased Property by such parties; together with interest on such excess computed at the Overdue Rate for each day prior to the Base Term Expiration Date.

“Other Liable Party” means any Person, other than LRC, who may now or may at any time hereafter be primarily or secondarily liable for any of the Secured Obligations or who may now or may at any time hereafter have granted to BTMUCLF a Lien against any of its assets to secure any Secured Obligations.

“Participant” means, with respect to the Lease, any Participation Holder as defined in Section 6.4 of the Participation Agreement.

Participant Downgrade Event ” means Participant or any successor of Participant fails to maintain a debt rating of at least (i) BBB- (in the case of long term debt) by Standard and Poor’s Corporation (the “S&P Rating” ), and (ii) Baa3 (in the case of long term debt) by Moody’s Investor Service, Inc. (the “Moody Rating” ) and LRC shall elect to require that the Collateral held by Participant to be transferred to an Eligible Deposit Taker pursuant to Section 3(C) hereof, provided that (i) such transferee shall satisfy the requirements of an Eligible Deposit Taker and (ii) LRC, Lessor and such replacement Eligible Deposit Taker

 

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have entered into a control agreement in form reasonably acceptable to all parties thereto. The parties hereto believe that it is improbable that the ratings systems used by Standard and Poor’s Corporation and by Moody’s Investor Service, Inc. will be discontinued or changed, but if such ratings systems are discontinued or changed, LRC shall be entitled to select and use a comparable ratings systems as a substitute for the S&P Rating or the Moody Rating, as the case may be, for purposes of determining the status of Participant or such successor as an Eligible Deposit Taker.

“Percentage” means with respect to each Participant and the Deposit Taker for such Participant, the percentage obtained by dividing (x) the amount of the outstanding Equity Investment assumed by such Participant pursuant to Section 6.4 of the Participation Agreement by (y) the aggregate amount of the Equity Investment of the Participants. Percentages may be adjusted from time to time as provided in the Participation Agreement or as provided in supplements thereto executed as provided in the Participation Agreement.

“Qualified Pledge” means a pledge or security interest that constitutes a valid, perfected, first priority pledge or security interest.

“Secured Obligations” means and includes all obligations of LRC under the Operative Documents (except with respect to the Other Lease Documents) including, without limitation, (i) LRC’s obligation to pay the Recourse Deficiency Amount as provided in Article XXII of the Lease, (ii) LRC’s obligation to pay the Break Even Price as the purchase price for the Leased Property pursuant to Sections 20.1, 20.2 or 21.1(a) of the Lease, and (iv) any damages incurred by BTMUCLF or other amounts due under the Operative Documents (except with respect to the Other Lease Documents) following an Event of Default including any rejection by LRC of the Lease or any other Operative Document (except with respect to the Other Lease Documents) in any bankruptcy, insolvency or similar proceeding.

UCC ” means the Uniform Commercial Code as in effect in the State of New York from time to time, and the Uniform Commercial Code as in effect in any other jurisdiction which governs the perfection or non-perfection of the pledge of and security interests in the Collateral created by this Agreement.

(B) Rules of Interpretation. The rules of interpretation set forth in Appendix I to the Participation Agreement are hereby incorporated by reference.

(C) Attachments. All attachments to this Agreement are a part hereof for all purposes.

Union Bank Downgrade Event ” means Union Bank, N.A. or any successor of Union Bank, N.A. fails to maintain a debt rating of at least (i) BBB- (in the case of long term debt) by Standard and Poor’s Corporation (the “S&P Rating” ), and (ii) Baa3 (in the case of long term debt) by Moody’s Investor Service, Inc. (the “Moody Rating” ) and LRC shall elect to require that the Collateral held by Union Bank, N.A. to be transferred to an Eligible Deposit Taker pursuant to Section 3(C) hereof, provided that (i) such transferee shall satisfy the requirements of an Eligible Deposit Taker and (ii) LRC, Lessor and such

 

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replacement Eligible Deposit Taker have entered into a control agreement in form reasonably acceptable to all parties thereto. The parties hereto believe that it is improbable that the ratings systems used by Standard and Poor’s Corporation and by Moody’s Investor Service, Inc. will be discontinued or changed, but if such ratings systems are discontinued or changed, LRC shall be entitled to select and use a comparable ratings systems as a substitute for the S&P Rating or the Moody Rating, as the case may be, for purposes of determining the status of Union Bank, N.A. or such successor as an Eligible Deposit Taker.

 

2. PLEDGE AND GRANT OF SECURITY INTEREST.

As security for the Secured Obligations, LRC hereby pledges and assigns to BTMUCLF and grants to BTMUCLF a continuing security interest and lien in and against all right, title and interest of LRC in and to the following property, whether now or hereafter existing, whether tangible or intangible, whether presently owned or vested in or hereafter acquired by LRC and wherever the same may be located (collectively and severally, the “Collateral”) :

(a) all Cash Collateral and all Deposit Accounts; and all cash and other assets from time to time held in or on deposit in any Deposit Account and all general intangibles arising from or relating to any Deposit Account or such cash or other assets; and all documents, instruments and agreements evidencing the same; and all extensions, renewals, modifications and replacements of the foregoing; and any interest or other amounts payable in connection therewith; and

(b) all proceeds of the foregoing (including whatever is receivable or received when Collateral or proceeds is invested, sold, collected, exchanged, returned, substituted or otherwise disposed of, whether such disposition is voluntary or involuntary, including rights to payment and return premiums and insurance proceeds under insurance with respect to any Collateral, and all rights to payment with respect to any cause of action affecting or relating to the Collateral).

The pledge, assignment and grant of a security interest made by LRC hereunder is for security of the Secured Obligations only; the parties to this Agreement do not intend that LRC’s delivery or deposit of any Collateral, including the Cash Collateral, as herein provided will constitute an advance payment of any Secured Obligations or liquidated damages, nor do the parties intend that the Collateral increase the dollar amount of the Secured Obligations.

 

3. PROVISIONS CONCERNING THE DEPOSIT TAKERS.

(A) Deposit Taker Agreements . Prior to the Closing, LRC must (1) ask BTMU, as the designated Deposit Taker for BTMUCLF, and each Eligible Deposit Taker designated by any Participant to act as the Deposit Taker for it under this Agreement, to satisfy the Deposit Taker Prerequisites; and (2) execute and provide to BTMUCLF a completed Deposit Taker’s Agreement for BTMUCLF’s execution and delivery to each Deposit Taker. Promptly after receipt of a properly completed Deposit Taker’s Agreement executed by LRC and in form ready to be executed by BTMU or any other Eligible

 

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Deposit Taker named therein, BTMUCLF must execute such Deposit Taker’s Agreement and deliver it to the appropriate Deposit Taker as necessary for the satisfaction of the Deposit Taker Prerequisites.

Without limiting the foregoing, it is understood that (i) BTMUCLF and any Participant may designate BTMU as its Deposit Taker, (ii) any Participant may designate itself or any of its Affiliates as its Deposit Taker so long as the Participant or its Affiliate, as the case may be, is an Eligible Deposit Taker, and (iii) as provided in both the preceding provisions of this subparagraph and in subparagraph 3(E), BTMUCLF and LRC must promptly upon request execute and deliver any properly completed Deposit Taker Agreement requested by BTMUCLF or any Participant to facilitate the designations of Deposit Takers contemplated by this Agreement. If any Participant has not already designated an Eligible Deposit Taker to act as Deposit Taker for it under this Agreement at any time when such a designation is required, then BTMUCLF may make the designation for such Participant; subject, however, to such Participant’s rights under subparagraphs 3(D) and 3(E).

(B) Qualification of Deposit Takers Generally . Notwithstanding anything herein to the contrary, BTMUCLF may decline to deposit or maintain Cash Collateral hereunder with any Disqualified Deposit Taker.

(C) Substitutions for Disqualified Deposit Takers .

(1) Upon learning that any Deposit Taker has become a Disqualified Deposit Taker, LRC or BTMUCLF may request that the party for whom such Disqualified Deposit Taker has been designated a Deposit Taker (i.e., BTMUCLF or the applicable Participant) (a) designate another Eligible Deposit Taker as its new, substitute Deposit Taker, and (b) direct the substitute to satisfy the Deposit Taker Prerequisites.

(2) Pending the designation of a substitute Deposit Taker as provided in this subparagraph 3(C) and its execution and delivery to BTMUCLF of an appropriate Deposit Taker’s Agreement, BTMUCLF may withdraw Collateral held by the Deposit Taker to be replaced and deposit such Collateral with other Deposit Takers. If at any time no Deposit Takers have been designated other than Disqualified Deposit Takers, then BTMUCLF must itself select a new Eligible Deposit Taker to act as a Deposit Taker for it and direct the new Eligible Deposit Taker to satisfy the Deposit Taker Prerequisites.

(3) If, following a BTMU Downgrade Event, BTMU subsequently maintains the S&P Rating and Moody Rating required by clauses (i) and (ii) of the definition of BTMU Downgrade Event, BTMUCLF may designate BTMU as its new, substitute Deposit Taker and to have Collateral previously withdrawn from BTMU promptly transferred to BTMU to be held in accordance herewith and the Deposit Taker’s Agreement (or a substitute Deposit Taker’s Agreement on the identical terms as that to which such Collateral was previously subject).

(D) Other Voluntary Substitutions of Deposit Takers . BTMUCLF may, and with the written approval of BTMUCLF (which approval will not be unreasonably

 

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withheld) any Participant may, at any time designate for itself a new Deposit Taker (in replacement of any prior Deposit Taker acting for it hereunder); provided, the Person so designated is not be a Disqualified Taker.

(E) Delivery of Deposit Taker’s Agreements by LRC and BTMUCLF . To the extent required for the designation of a new Deposit Taker by BTMUCLF or any Participant pursuant to subparagraph 3(D), or to permit the substitution or replacement of a Deposit Taker for BTMUCLF or any Participant as provided in subparagraphs 3(C) and 3(D), LRC and BTMUCLF shall promptly execute and deliver any properly completed Deposit Taker’s Agreement requested by BTMUCLF or the applicable Participant.

(F) Constructive Possession of Collateral . The possession by a Deposit Taker of any money, instruments, chattel paper, financial assets or other property constituting Collateral or evidencing Collateral shall be deemed to be possession by BTMUCLF or a person designated by BTMUCLF, for purposes of perfecting the security interest granted to BTMUCLF hereunder pursuant to the UCC or other Applicable Law; and notifications to a Deposit Taker by other Persons holding any such property, and acknowledgments, receipts or confirmations from any such Persons delivered to a Deposit Taker, and control agreements made by any such Person with Deposit Taker with respect to any such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, or control agreements with, financial intermediaries, bailees or agents (as applicable) of such Deposit Taker for the benefit of BTMUCLF for the purposes of perfecting such security interests under Applicable Law.

However, nothing in this subparagraph will be construed to permit or authorize any replacement of Cash Collateral required by this Agreement with other types of Collateral or any substitution of other types of Collateral for Cash Collateral hereunder.

(G) Attempted Setoff by Deposit Taker . By delivery of a Deposit Taker’s Agreement, each Deposit Taker must agree not to setoff or attempt a setoff, without in each case first obtaining the prior written authorization of BTMUCLF (which BTMUCLF will not grant without the prior written consent of all Participants, if applicable), obligations owed to such Deposit Taker against any Collateral held by it from time to time. Nevertheless, LRC acknowledges and agrees (without limiting its right to recover any resulting damages from any Deposit Taker that violates such agreements) that BTMUCLF shall not be responsible for, or be deemed to have taken any action against LRC because of, any violation of such agreement by any Deposit Taker. Further, and without limiting the foregoing, as additional consideration for BTMUCLF’s accommodations to LRC, including BTMUCLF’s acceptance of the Collateral in lieu of other forms of security as collateral for the Secured Obligations, LRC hereby waives and covenants not to assert any defense or claim arising out of (i) the California antideficiency laws, including without limitation California Code of Civil Procedure Sections 580a, 580b, 580d and 726, and (ii) without limiting the generality of the foregoing, Walker v. Community Bank , 10 Cal. 3d 729, 111 Cal. Rptr. 897, 518 P.2d 329 (1974), Security Pacific Nat’l Bank v. Wozab , 51 Cal. 3d 991, 275 Cal. Rptr. 201, 800 P.2d 557 (1990), and similar cases, to the extent such claim arises out of or relates to the exercise of set off rights by any Deposit Taker.

 

4. DELIVERY AND MAINTENANCE OF COLLATERAL.

 

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(A) Delivery of Cash Collateral by LRC . On the Base Term Commencement Date as a condition precedent thereto under the Participation Agreement, LRC must deliver or cause to be delivered to Deposit Takers for deposit directly into the Deposit Accounts, in either case subject to the pledge and security interest created hereby, funds as Cash Collateral then needed (if any) in an amount equal to the Lease Balance (including any Advances or other amounts added to the Lease Balance on that date as provided in the Participation Agreement).

(B) Status of the Deposit Accounts Under the Reserve Requirement Regulations . Each Deposit Taker shall be permitted to structure the Deposit Account maintained by it as a nonpersonal time deposit under 12 C.F.R., Part II, Chapter 204 (commonly known as “Regulation D”). Accordingly, any Deposit Taker may require at least seven days advance notice of any withdrawal or transfer of funds from the Deposit Account maintained by it and, to the extent LRC has the right to request withdrawals therefrom, may limit the number of withdrawals or transfers from such Deposit Account to no more than six in any calendar month, notwithstanding anything to the contrary herein or in any deposit agreement that LRC and such Deposit Taker may enter into with respect to such Deposit Account. As necessary to satisfy the seven days notice requirement with respect to withdrawals by BTMUCLF when required by LRC pursuant to the provisions below, BTMUCLF shall notify the affected Deposit Takers promptly after receipt of any notice from LRC described in subparagraph 5(B).

(C) Acknowledgment by LRC that Requirements of this Agreement are Commercially Reasonable . LRC acknowledges and agrees that the requirements set forth herein concerning receipt, deposit, withdrawal, allocation, application and distribution of Cash Collateral by BTMUCLF, including the requirements and time periods set forth in the Paragraph 5, are commercially reasonable.

 

5. WITHDRAWAL OF COLLATERAL.

(A) Withdrawal of Cash Collateral Upon the Occurrence and During the Continuance of an Event of Default . Upon the occurrence and during the continuance of an Event of Default, without any instruction or request of LRC, BTMUCLF may withdraw and retain any Cash Collateral held by any Deposit Taker (which retention by BTMUCLF shall be free and clear of all liens and security interests hereunder and any rights of LRC thereto shall be released, terminated and waived without further action) as a payment on behalf of LRC of any amounts then due from LRC under Article XVIII of the Lease. To the extent BTMUCLF has exercised its rights and remedies thereunder and has indefeasibly satisfied the Secured Obligations in full in accordance with Article XVIII of the Lease, LRC may require BTMUCLF to withdraw and promptly pay to LRC any Cash Collateral still held by any Deposit Taker.

(B) Withdrawal and Application of Cash Collateral to Reduce or Satisfy the Secured Obligations to BTMUCLF . Except following the occurrence and during the continuance of an Event of Default, to satisfy the Secured Obligations in full, LRC may require BTMUCLF to withdraw and retain any Cash Collateral held by any Deposit Taker on the Base Term Expiration Date (which retention by BTMUCLF shall be free and clear of all liens and security interests hereunder and any rights of LRC thereto shall be released,

 

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terminated and waived without further action) as a payment on behalf of LRC of any amounts then due from LRC under Articles XX, XXI or XXII of the Lease; provided, that by a notice in the form of Exhibit B , LRC must have notified BTMUCLF of the required withdrawal and payment to BTMUCLF at least ten days prior to the date upon which it is to occur and when no Event of Default (under and as defined in this Agreement or as defined in the Lease) has occurred and is continuing. To the extent LRC has validly exercised the Return Option under the Lease and the Recourse Deficiency Amount has been indefeasibly satisfied in full on the Base Term Expiration Date in accordance with Articles XXI and XXII of the Lease, LRC may require BTMUCLF to withdraw and pay to LRC Cash Collateral held by any Deposit Taker on the Base Term Expiration Date in an amount not to exceed the Make Whole Amount and when no Default or Event of Default (under and as defined in this Agreement or as defined in the Lease) has occurred and is continuing.

(C) Withdrawal and Return of Cash Collateral Following Satisfaction of all Secured Obligations . Following the Base Term Expiration Date, when all Secured Obligations have been indefeasibly satisfied in full, any remaining Cash Collateral that has not been withdrawn and applied against the Secured Obligations shall revert to LRC as provided in subparagraph 9(F), whereupon LRC may require BTMUCLF to withdraw such remaining Cash Collateral then maintained pursuant to this Agreement and promptly transfer such remaining Cash Collateral to LRC.

(D) No Other Right to Require or Make Withdrawals . LRC may not withdraw or require any withdrawal of Collateral from any account or deposit account pledged hereunder, including the Deposit Accounts, except as expressly provided in the preceding subparagraphs of this Paragraph 5. LRC acknowledges that it will have no check writing privileges or line of credit or credit card privileges under any such pledged account or deposit account, including the Deposit Accounts.

(E) BTMUCLF’s Covenant Not to Make Unauthorized Withdrawals . Notwithstanding provisions of any Control Agreement or of any Deposit Taker’s Agreement which may state that BTMUCLF is entitled to withdraw Collateral held by any Deposit Taker without any prior consent or authorization of LRC, BTMUCLF covenants to LRC (as between BTMUCLF and LRC) that BTMUCLF will not exercise such rights to withdraw Collateral except (1) as required or permitted by this Paragraph 5, (2) in the exercise of BTMUCLF’s rights or remedies as otherwise herein provided, or (3) as may from time to time be requested or approved by LRC.

 

6. REPRESENTATIONS AND COVENANTS OF LRC.

(A) Representations of LRC . LRC represents to BTMUCLF as follows:

(1) LRC is the legal and beneficial owner of the Collateral (or, in the case of after-acquired Collateral, at the time LRC acquires rights in the Collateral, will be the legal and beneficial owner thereof), subject to the pledge and rights hereby granted in favor of BTMUCLF. No other Person has (or, in the case of after-acquired Collateral, at the time LRC acquires rights therein, will have) any right, title, claim or interest (by way of Lien, purchase option or otherwise) in, against or to the Collateral, except for rights created hereunder. The Collateral shall

 

13


be deposited with the Deposit Taker hereunder and under the Deposit Taker’s Agreement free and clear of any Lien.

(2) BTMUCLF has (or in the case of after-acquired Collateral, at the time LRC acquires rights therein, will have) a valid, first priority, perfected pledge of and security interest in the Collateral, regardless of the characterization of the Collateral as deposit accounts, instruments or general intangibles under the UCC, but assuming that the representations of each Deposit Taker in its Deposit Taker’s Agreement are true.

(3) LRC has delivered to BTMUCLF, together with all necessary stock powers, endorsements, assignments and other necessary instruments of transfer, the originals of all documents, instruments and agreements evidencing the Collateral in order to comply with Section 2 of the Initial Control Agreement.

(4) Neither the ownership or the intended use of the Collateral by LRC, nor the pledge of Collateral or the grant of the security interest by LRC to BTMUCLF herein, nor the exercise by BTMUCLF of its rights or remedies hereunder, will (i) violate any provision of (a) Applicable Law, (b) the articles or certificate of incorporation, charter or bylaws of LRC, or (c) any agreement, judgment, license, order or permit applicable to or binding upon LRC or its properties, or (ii) result in or require the creation of any Lien, charge or encumbrance upon any assets or properties of LRC except as expressly contemplated in this Agreement. Except as expressly contemplated in this Agreement, no consent, approval, authorization or order of, and no notice to or filing with any court, governmental authority or third party is required in connection with the pledge or grant by LRC of the security interest contemplated herein or the exercise by BTMUCLF of its rights and remedies hereunder.

 

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(B) Covenants of LRC . LRC hereby agrees as follows:

(1) LRC, at LRC’s expense, shall promptly procure, execute and deliver to BTMUCLF all documents, instruments and agreements and perform all acts which are necessary or desirable, or which BTMUCLF may request, to establish, maintain, preserve, protect and perfect the Collateral, the pledge thereof to BTMUCLF or the security interest granted to BTMUCLF therein and the first priority of such pledge or security interest or to enable BTMUCLF to exercise and enforce its rights and remedies hereunder with respect to any Collateral. Without limiting the generality of the preceding sentence, LRC shall (A) procure, execute and deliver to BTMUCLF all stock powers, endorsements, assignments, financing statements and other instruments of transfer requested by BTMUCLF, (B) deliver to BTMUCLF promptly upon receipt all originals of Collateral consisting of instruments, documents and chattel paper, and (C) cause the security interest of BTMUCLF in any Collateral consisting of securities to be recorded or registered in the books of any financial intermediary or Clearing System requested by BTMUCLF.

(2) When Applicable Law provides more than one method of perfection of BTMUCLF’s security interest in the Collateral, BTMUCLF may choose the method(s) to be used. LRC hereby authorizes BTMUCLF to file any financing statements or financing statement amendment covering all or any portion of the Collateral or relating to the security interest created herein.

(3) LRC shall not use or authorize or consent to any use of any Collateral in violation of any provision of this Agreement or any other Operative Document or any Applicable Law.

(4) LRC shall pay promptly when due all Taxes and other governmental charges, Liens and other charges now or hereafter imposed upon, relating to or affecting any Collateral or arising on any interest or earnings thereon.

(5) LRC shall appear in and defend, on behalf of BTMUCLF, any action or proceeding which may affect LRC’s title to or BTMUCLF’s interest in the Collateral.

(6) Subject to the express rights of LRC under Paragraph 5, LRC shall not surrender or lose possession of (other than to BTMUCLF or a Deposit Taker pursuant hereto), encumber, lease, rent, option, or otherwise dispose of or transfer any Collateral or right or interest therein, and LRC shall keep the Collateral free of all Liens (other than Liens granted under this Agreement). The rights granted to BTMUCLF pursuant to this Agreement are in addition to the rights granted to BTMUCLF in any Control Agreement or other custody, investment management, trust, account control agreement or similar agreement. In case of conflict between the provisions of this Agreement and of any other such agreement, the provisions of this Agreement will prevail.

 

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(7) LRC will not take any action which would in any manner impair the value or enforceability of BTMUCLF’s pledge of or security interest in any Collateral, nor will LRC fail to take any action which is required to prevent (and which LRC knows is required to prevent) an impairment of the value or enforceability of BTMUCLF’s pledge of or security interest in any Collateral.

(8) Without limiting the foregoing, within five days after LRC becomes aware of any failure of the pledge or security interest contemplated herein in any Deposit Account or Cash Collateral to be a valid, perfected, first priority pledge or security interest (regardless of the characterization thereof as deposit accounts, securities accounts, instruments or general intangibles under the UCC), LRC shall notify BTMUCLF of such failure.

 

7. AUTHORIZED ACTION BY BTMUCLF.

LRC hereby irrevocably appoints BTMUCLF as LRC’s attorney-in-fact for the purpose of authorizing BTMUCLF to perform (but BTMUCLF shall not be obligated to and shall incur no liability to LRC or any third party for failure to perform) any act which LRC is obligated by this Agreement to perform, and to exercise, consistent with the other provisions of this Agreement, such rights and powers as LRC might exercise with respect to the Collateral during any period in which a Default has occurred and is continuing, including the right to (a) collect by legal proceedings or otherwise and endorse, receive and receipt for all dividends, interest, payments, proceeds and other sums and property now or hereafter payable on or on account of the Collateral; (b) enter into any extension, reorganization, deposit, merger, consolidation or other agreement pertaining to, or deposit, surrender, accept, hold or apply other property in exchange for the Collateral; (c) insure, process, preserve and enforce the Collateral; (d) make any compromise or settlement, and take any action it deems advisable, with respect to the Collateral; (e) pay any indebtedness of LRC relating to the Collateral; and (f) execute UCC financing statements and other documents, instruments and agreements required hereunder. Such appointment is coupled with an interest and shall be valid and binding on LRC and its successor and assigns.

 

8. DEFAULT AND REMEDIES.

(A) Remedies . In addition to all other rights and remedies granted to BTMUCLF by this Agreement and other Operative Documents (except under Other Lease Documents) or by the UCC and other Applicable Laws, BTMUCLF may, upon the occurrence and during the continuance of any Event of Default (as defined herein and in the Lease), exercise any one or more of the following rights and remedies, all of which will be in furtherance of its rights as a secured party under the UCC:

(1) BTMUCLF may collect, receive, appropriate or realize upon the Collateral or otherwise foreclose or enforce the pledge of or security interests in any or all Collateral in any manner permitted by Applicable Law or in this Agreement.

(2) BTMUCLF may notify any Deposit Taker to pay all or any portion of Cash Collateral held by such Deposit Taker directly to BTMUCLF up to an amount equal to the then outstanding Secured Obligations. BTMUCLF shall apply

 

16


any Cash Collateral or proceeds of other Collateral received by BTMUCLF after the occurrence of such an Event of Default to the Secured Obligations in any order BTMUCLF believes to be in its best interest. If any such Cash Collateral or proceeds received by BTMUCLF remains after all Secured Obligations have been paid in full, BTMUCLF will deliver or direct the Deposit Takers to deliver the same to LRC or other Persons entitled thereto.

Without limiting the foregoing, when any such Event of Default has occurred and is continuing, BTMUCLF may, without notice or demand, sell, redeem, offset, setoff, debit, charge or otherwise dispose of or liquidate into cash any Collateral and/or to apply it or the proceeds thereof to repay any or all of the Secured Obligations in such order as BTMUCLF believes to be in its best interest, regardless of whether any such Secured Obligations are contingent, unliquidated or unmatured or whether BTMUCLF has any other recourse to LRC or any Other Liable Party or any other collateral or assets (including the Property). Moreover, regardless of whether BTMUCLF commences any action to foreclose the lien and security interest granted in the Lease or the Memorandum of Lease (a “Property Foreclosure” ) before, after or contemporaneously with any action BTMUCLF may take under this Pledge Agreement to collect Cash Collateral or proceeds of other Collateral, and regardless of whether BTMUCLF actually receives proceeds of a Property Foreclosure before or after it receives Cash Collateral or proceeds of other Collateral, BTMUCLF will be entitled to apply Cash Collateral and proceeds of other Collateral to satisfy or reduce the Secured Obligations before applying the proceeds of a Property Foreclosure to other remaining obligations secured as described in the Lease and the Memo of Lease. Also, BTMUCLF may exercise its rights without regard to any premium or penalty from liquidation of any Collateral and without regard to LRC’s basis or holding period for any Collateral.

In connection with the exercise of its remedies under this Agreement, BTMUCLF may sell from its offices in Boston, Massachusetts, New York, New York or elsewhere, in one or more sales, at the price as BTMUCLF deems best, for cash or on credit or for other property, for immediate or future delivery, any item of the Collateral, at any broker’s board or at public or private sale, in any reasonable manner permissible under the UCC (except that, to the extent permissible under the UCC, LRC waives any requirements of the UCC) and BTMUCLF or anyone else may be the purchaser of the Collateral and hold it free from any claim or right including, without limitation, any equity of redemption of LRC, which right LRC expressly waives. BTMUCLF may in its sole discretion elect to conduct any sale (and related offers) of any Collateral in such a manner as to avoid the need for registration or qualification thereof under any Federal or state securities laws, that such conduct may include restrictions (including as to potential purchasers) and other requirements (such as purchaser representations) which may result in prices or other terms less favorable than those which might have been obtained through a public sale not subject to such restrictions and requirements and that any offer and sale so conducted shall be deemed to have been made in a commercially reasonable manner.

In connection with the exercise of its remedies, BTMUCLF may also, in its sole discretion, for its own benefit, acting either in its own name or in the name of LRC:

 

17


(i) hold any monies or proceeds representing the Collateral in a cash collateral account in U.S. dollars or other currency that BTMUCLF reasonably selects and invest such monies or proceeds on behalf of LRC;

(ii) convert any Collateral denominated in a currency other than U.S. dollars to U.S. dollars at the spot rate of exchange for the purchase of U.S. dollars with such other currency which is quoted by a branch or office of BTMUCLF’s Parent selected by BTMUCLF (or, if no such rate is quoted by BTMUCLF’s Parent on any relevant date, then at a rate estimated by BTMUCLF on the basis of other quoted spot rates) or another prevailing rate that BTMUCLF reasonably deems more appropriate; or

(iii) apply any portion of the Collateral, first, to pay or reimburse all costs and expenses of BTMUCLF and then to all or any portion of the Secured Obligations in such order as BTMUCLF may believe to be in its best interest.

In any event, LRC will pay to BTMUCLF upon demand all expenses (including reasonable, out-of-pocket fees, costs and expenses of counsel to BTMUCLF and any Participant) incurred by BTMUCLF in connection with the exercise of any of BTMUCLF’s rights or remedies under this Agreement.

Notwithstanding that BTMUCLF may continue to hold Collateral and regardless of the value of the Collateral, LRC will remain liable for the payment in full of any unpaid balance of the Secured Obligations.

In any case where notice of any sale or disposition of any Collateral is required, LRC hereby agrees that ten (10) days notice of such sale or disposition is reasonable.

(B) Recovery Not Limited . To the fullest extent permitted by Applicable Law, LRC waives any right to require that BTMUCLF proceed against any other Person, exhaust any Collateral or other security for the Secured Obligations, or to have any Other Liable Party joined with LRC in any suit arising out of the Secured Obligations or this Agreement, or pursue any other remedy in their power. LRC waives any and all notice of acceptance of this Agreement.

LRC further waives notice of the creation, modification, rearrangement, renewal or extension for any period of any of the Secured Obligations of any Other Liable Party from time to time and any defense arising by reason of any disability or other defense of any Other Liable Party or by reason of the cessation from any cause whatsoever of the liability of any Other Liable Party. Until all of the Secured Obligations shall have been paid in full, LRC shall have no right to subrogation, reimbursement, contribution or indemnity against any Other Liable Party and LRC waives the right to enforce any remedy which BTMUCLF has or may hereafter have against any Other Liable Party, and waives any benefit of and any right to participate in any other security whatsoever now or hereafter held by or on behalf of BTMUCLF. LRC authorizes BTMUCLF, without notice or demand and without any reservation of rights against LRC and without affecting LRC’s liability hereunder or on the Secured Obligations, from time to time to (a) take or hold any other property of any type

 

18


from any other Person as security for the Secured Obligations, and exchange, enforce, waive and release any or all of such other property, (b) after and during the continuance of any Event of Default (as defined herein or in the Lease), apply or require the application of the Collateral (in accordance with this Agreement) or such other property in any order they may determine and to direct the order or manner of sale thereof as they may determine, (c) renew, extend for any period, accelerate, modify, compromise, settle or release any of the obligations of any Other Liable Party with respect to any or all of the Secured Obligations or other security for the Secured Obligations, and (d) release or substitute any Other Liable Party.

 

9. MISCELLANEOUS.

(A) Payments by LRC to BTMUCLF . All payments and deliveries of funds required to be made by LRC to BTMUCLF hereunder shall be paid or delivered in immediately available funds by wire transfer to the Deposit Account in accordance with wiring instructions which will be provided by BTMUCLF to LRC. Time is of the essence as to all payments and deliveries of funds by LRC to BTMUCLF under this Agreement.

(B) Payments by BTMUCLF to LRC . All payments of Cash Collateral withdrawn by BTMUCLF from the Deposit Accounts and required to returned by BTMUCLF to LRC hereunder shall be paid or delivered in immediately available funds by wire transfer to:

 

Bank Name:            
Bank Address:            
ABA # (Domestic):                    
SWIFT ID (Inn):            
Account Name:            
Account Number:            
Bank Contact:            
           
           
Reference            

or at such other place and in such other manner as LRC may designate in a notice sent to BTMUCLF. Time is of the essence as to all such payments by BTMUCLF to LRC.

(C) Cumulative Rights, etc. Except as herein expressly provided to the contrary, the rights, powers and remedies of BTMUCLF under this Agreement shall be in addition to all rights, powers and remedies given to them by virtue of any Applicable Law, any other Operative Document or any other agreement, all of which rights, powers, and remedies shall be cumulative and may be exercised successively or concurrently without impairing their respective rights hereunder. LRC waives any right to require BTMUCLF to proceed against any Person or to exhaust any Collateral or other collateral or security or to pursue any remedy in BTMUCLF’s power.

 

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(D) Survival of Agreements . All representations and warranties of LRC herein, and all covenants and agreements herein shall survive the execution and delivery of this Agreement, the execution and delivery of any other Operative Documents and the creation of the Secured Obligations and continue until terminated or released as provided herein.

(E) Other Liable Party . Neither this Agreement nor the exercise by BTMUCLF or the failure of BTMUCLF to exercise any right, power or remedy conferred herein or by law shall be construed as relieving LRC or any Other Liable Party from liability on the Secured Obligations or any deficiency thereon. This Agreement shall continue irrespective of the fact that the liability of any Other Liable Party may have ceased or irrespective of the validity or enforceability of any other agreement evidencing or securing the Secured Obligations to which LRC or any Other Liable Party may be a party, and notwithstanding the reorganization, death, incapacity or bankruptcy of any Other Liable Party, or any other event or proceeding affecting any Other Liable Party.

(F) Termination . Following the Base Term Expiration Date, upon indefeasible satisfaction in full of all Secured Obligations (other than contingent indemnity obligations for which no Claim has been made or are not due and payable) and upon written request for the termination of this Agreement delivered by LRC to BTMUCLF, BTMUCLF will execute and deliver, at LRC’s expense, an acknowledgment that this Agreement and the pledge and security interest created hereby are terminated, whereupon all rights to any remaining Collateral that has not been applied against Secured Obligations in accordance with this Agreement shall revert to LRC.

[Signature pages to follow]

 

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IN WITNESS WHEREOF, this Agreement is executed to be effective as of the date first written above.

 

BTMU CAPITAL LEASING & FINANCE, INC.,
a Delaware corporation
By:  

/s/ Michael D. Doyle

Name:   Michael D. Doyle
Title:   President


LAM RESEARCH CORPORATION,
a Delaware Corporation
By:  

/s/ Odette Go

Name:   Odette Go
Title:   Treasurer


Exhibit A

TO PLEDGE AGREEMENT

DEPOSIT AGREEMENT

(PORT 101)

Dated as of December 31, 2013

The Bank of Tokyo-Mitsubishi UFJ, Ltd.

Global Markets Division for the Americas

1251 Avenues of the Americas

New York, New York 10020-1104

Dear Ladies and Gentlemen:

LAM Research Corporation, a Delaware corporation (“ LRC ”), refers to that certain Pledge Agreement (Port 101), dated as of December 31, 2013 (as amended or otherwise modified from time to time, the “Pledge Agreement” ), between BTMU Capital Leasing & Finance, Inc. (“ BTMUCLF ”) and LRC. All capitalized terms used herein and not otherwise defined herein shall have the same meanings herein as set forth in the Pledge Agreement. All terms used in this Agreement which are defined in the UCC and not otherwise defined herein shall have the same meanings herein as set forth therein, except where the context otherwise requires.

This Deposit Agreement (this “ Agreement ”), is among The Bank of Tokyo-Mitsubishi UFJ, Ltd. (“ Deposit Taker ”), LRC and BTMUCLF and shall serve as instructions regarding the following deposit account established by LRC at the Deposit Taker (the “ Deposit Account ”):

 

Account

Type

    

Account

Office

  

Account/IMMS/WSS

Numbers

       

 

    

 

  

 

LRC has delivered to Deposit Taker for deposit initially in such Deposit Account, which may not necessarily bear any special title or which may be entitled: “LAM RESEARCH CORPORATION COLLATERAL ACCOUNT FOR THE BENEFIT OF BTMU CAPITAL LEASING & FINANCE, INC.” or such other title as may be acceptable to Deposit Taker the sum of U.S.$19,227,272.41 in immediately available funds and which may thereafter be held in (but are not necessarily limited to) the form of one or more time deposits, certificates of deposit, other deposits or instruments of any type which at all times shall be under the


dominion and control of the Deposit Taker (such funds, whether now or at any time hereafter on deposit with or payable or withdrawable from the Deposit Taker (whether from the Deposit Account or any other deposit account, or any time deposit, certificate of deposit, or any other deposit or instrument of any type)), together with any amounts or accruals subsequently added to or earned, including interest, by such funds and all additional funds hereafter deposited into the Deposit Account hereunder or otherwise or given in substitution for such funds, being referred to herein as the “ Deposited Funds ”). Any such Deposited Funds and any funds or deposits which at any time derive from, consist of or represent Deposited Funds (including, but not limited to, time deposits, certificates of deposit, other deposits or instruments of any type), all proceeds, income and profits thereon and therefrom, and the Deposit Account and any deposit account in which any of the foregoing is deposited or held, and all of LRC’s rights and interests therein and claims against Deposit Taker with respect thereto, are collectively referred to herein as, the “ Cash Collateral ”. Without limiting any of Deposit Taker’s other rights or remedies Deposit Taker shall have all the rights and remedies of a secured party under the Uniform Commercial Code and all other applicable law with respect to the Cash Collateral and each such deposit account, all of which LRC acknowledges is to be deemed a “deposit account” defined by the Uniform Commercial Code. LRC understands that Deposit Taker may combine the Deposited Funds and Cash Collateral with other funds and will not be required to keep them separate and identifiable and that the Deposited Funds and Cash Collateral may be invested, reinvested, held or otherwise utilized by the Deposit Taker without any direction of the Parties. If such commingling occurs, Deposit Taker may consider the Deposited Funds to consist at any time of any and all funds in any relevant account up to the amount required to be held by Deposit Taker pursuant hereto.

1. Lien . As security for immediate payment and performance when due of all of the Secured Obligations as defined in the Pledge Agreement owing by LRC, whensoever arising, whether now existing or hereafter incurred, of every kind and character, including, without limitation, arising or otherwise existing under or with respect to the Amended and Restated Lease Agreement (Port 101), dated as of December 31, 2013 (as amended or otherwise modified from time to time, the “Lease Agreement” ), between BTMUCLF and LRC and the Operative Documents (except with respect to the Other Lease Documents) (all such obligations, liabilities and indebtedness being referred to herein collectively as the “Secured Obligations” ), LRC hereby pledges and assigns to BTMUCLF and grants to BTMUCLF a continuing first priority security interest in the following (the Collateral ”): (i) the Deposit Account, (ii) the Cash Collateral, (iii) all Deposited Funds, (iv) any and all accounts to which the Deposited Funds or the proceeds thereof are credited, (v) all amounts, money and other property standing to the credit of any such accounts, together with any and all documents evidencing or constituting such amounts, money and other property, (vi) all instruments, investment property and the like in which such property is from time to time invested or reinvested and all interest, distributions, other income and the like payable with respect thereto, and (vii) all replacements, renewals, substitutions, products, profits and proceeds of the foregoing in whatever form. The parties hereto agree that this Agreement complies with Section 9-104(a)(2) of the New York Uniform Commercial Code. So long as this Agreement remains in full force and effect, LRC shall have no right to be paid or to draw upon, transfer or otherwise dispose of any of the Cash Collateral, and Deposit Taker shall

 

2


have exclusive dominion and control of all Cash Collateral. Deposit Taker has and shall have “control”, as contemplated by Article 9 of the Uniform Commercial Code, including Section 9-104 thereof, of the Deposit Account, the Deposited Funds, the Cash Collateral and of any deposit account in which any Cash Collateral is deposited.

2. Duties . Deposit Taker agrees to take such action with respect to the Deposit Account as shall from time to time be specified in any writing purportedly from BTMUCLF as provided herein. LRC and BTMUCLF agree that: (a) Deposit Taker has no duty to monitor the balance of the Deposit Account; (b) BTMUCLF may at any time make withdrawals from the Deposit Account and take any and all actions with respect to the Deposit Account, and Deposit Taker is hereby authorized to honor any instructions with respect to the Deposit Account (including withdrawals therefrom) which purport to be from BTMUCLF (in each case without notifying or obtaining the consent of LRC); (c) Deposit Taker may, without further inquiry, rely on and act in accordance with any instructions it receives from (or which purport to be from) BTMUCLF, notwithstanding any conflicting or contrary instructions it may receive from LRC, and Deposit Taker shall have no liability to BTMUCLF, LRC or any other person in relying on and acting in accordance with any such instructions; (d) Deposit Taker shall have no responsibility to inquire as to the form, execution, sufficiency or validity of any notice or instructions delivered to it hereunder, nor to inquire as to the identity, authority or rights of the person or persons executing or delivering the same, and (e) Deposit Taker shall have a reasonable period of time within which to act in accordance with any notice or instructions from BTMUCLF with respect to the Deposit Account. Deposit Taker is hereby authorized immediately, and without demand upon or notice to us or other formality, to take direction from BTMUCLF acting in accordance with the terms and conditions of the Pledge Agreement to (i) withdraw and deliver any and all Cash Collateral and Deposited Funds to LRC, (ii) withdraw and apply any and all Cash Collateral and Deposited Funds to reduce or satisfy any and all Secured Obligations in any order and first toward any expenses Deposit Taker incurs in Deposit Taker’s discretion, as and when they arise or are due, without resort to us, any other collateral or any other obligor, or (iii) withdraw and return Cash Collateral and Deposited Funds to LRC.

3. Interest on the Deposit Account . Deposit Taker will have no obligation to pay any interest on the Deposit Account except as follows: on each Payment Date accrued interest on each Deposit Account maintained by Deposit taker will be paid by wire transfer to the LRC for the period (the “Interest Period” ) since the preceding Payment Date (or if there was no preceding Payment Date, since the Base Term Commencement Date) equal to the product of:

 

    the Deposited Funds on deposit with the Deposit Taker on the first day of such Interest Period, times

 

    LIBOR Rate less 0.125% (but in no event less than zero) for such Interest Period, times

 

    the number of days in such Interest Period, divided by;

 

    three hundred sixty.

 

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As used in this Section 3, capitalized terms defined in the Participation Agreement are intended to have the respective meanings assigned to them in the Participation Agreement.

All payments of interest by Deposit Taker hereunder to LRC hereunder shall be paid or delivered in immediately available funds by wire transfer to:

 

Bank Name:        
Bank Address:        
ABA # (Domestic):        
SWIFT ID (Inn):        
Account Name:        
Account Number:        
Bank Contact:        
       
       
Reference        

or at such other place and in such other manner as LRC may designate in a notice sent to the Deposit Taker. Time is of the essence as to all such payments by Deposit Taker to LRC.

4. Remedies . LRC agrees that, at any time after an Event of Default has occurred or any Secured Obligation arises or comes due, Deposit Taker may, without notice or demand (all of which LRC hereby waives), to take direction from BTMUCLF acting in its sole discretion to realize upon and apply all or any part of the Cash Collateral to the payment of all or any part of the Secured Obligations, in such order and manner as BTMUCLF may elect and Deposit Taker is authorized to take direction from BTMUCLF acting in its sole discretion to break any time deposit or certificate deposit prior to its stated maturity and for which LRC shall have responsibility for any loss of interest or early withdrawal penalties resulting therefrom. BTMUCLF shall not be required to pursue any other right or remedy against us, or any other person liable for any part of the Secured Obligations, or enforce its security interest in or liens on any other property securing the Secured Obligations, prior to enforcing Deposit Taker’s rights against the Cash Collateral. Without limiting the foregoing, Deposit Taker is hereby authorized immediately, and without demand upon or notice to us or other formality, to take direction from BTMUCLF acting in its sole discretion on and during the continuance of an Event of Default (as such term is defined in the Pledge Agreement), apply and setoff against the Cash Collateral and the Deposited Funds the aggregate amount of all principal of, interest on and other amounts payable with respect to all Secured Obligations existing or payable as of such date, whether or not then due.

5. Representations, Warranties and Covenants . LRC hereby represents, warrants and covenants to Deposit Taker and BTMUCLF that: (i) the Collateral is and will be owned by us free and clear of all claims, liens, security interests, pledges and encumbrances of any kind, except in Deposit Taker’s favor; (ii) LRC is a corporation, duly organized and validly existing in good standing under the laws of State of Delaware, and have the right and power to execute, deliver and perform this Agreement, and to pledge, assign and grant a security interest in the Collateral in accordance herewith; (iii) this Agreement has been duly authorized, executed and delivered by LRC (and those individuals who have signed on its

 

4


behalf have the authority to do so consistent with resolutions on file in Deposit Taker’s offices) and constitutes its legal, valid, binding and enforceable obligation; (iv) Deposit Taker has and will continue at all times to have a first priority perfected and enforceable lien and security interest in the Collateral, subject to no other liens, security interests or encumbrances; (v) LRC shall not take any action or otherwise make any attempt to draw upon, transfer or otherwise dispose of the Collateral or permit the amount of Collateral to decrease at any time; and (vi) LRC shall from time to time at Deposit Taker’s request, execute, deliver, acknowledge, file and record such agreements, documents, statements and certificates (including, without limitation, Uniform Commercial Code financing statements), and do such acts and things as are necessary or appropriate to effectuate the purposes of this Agreement. LRC hereby authorizes Deposit Taker to file any Uniform Commercial Code financing statements, amendments thereto or continuations thereof, and any other appropriate security documents or instruments and to give any notices necessary or desirable to perfect any lien or security interest granted hereby, all without the signature of the LRC or to execute such items as attorney-in-fact for the LRC, as may be necessary to further the purposes described herein. Deposit Taker shall at all times have the exclusive right to hold and possess any certificates, instruments or documents included in the Collateral. Should LRC at any time receive any such certificates, instruments or documents it shall hold the same in trust for, and immediately deliver them to, Deposit Taker. Any breach of any representation, warranty, covenant or agreement made by us herein or elsewhere shall be an “ Event of Default ”. An “ Event of Default ” shall also be as defined in the Pledge Agreement.

6. Information . Deposit Taker shall provide BTMUCLF with such information with respect to the Deposit Account and all items (and proceeds thereof) deposited in the Deposit Account as BTMUCLF may from time to time reasonably request, and LRC hereby consents to such information being provided to BTMUCLF and agrees to pay all expenses in connection therewith.

7. Exculpation; Indemnity . Deposit Taker undertakes to perform only such duties as are expressly set forth herein. Notwithstanding any other provisions of this Agreement, the parties hereby agree that Deposit Taker shall not be liable for any action taken by it in accordance with this Agreement, including, without limitation, any action so taken at BTMUCLF’s request or direction, except direct damages attributable to the Deposit Taker’s gross negligence or willful misconduct. In no event shall Deposit Taker be liable for any (i) losses or delays resulting from acts of God, war, computer malfunction, interruption of communication facilities, labor difficulties or other causes beyond Deposit Taker’s reasonable control, or (ii) for indirect, special, punitive or consequential damages. LRC agrees to indemnify and hold Deposit Taker harmless from and against all costs, damages, claims, judgments, reasonable attorneys’ fees, expenses, obligations and liabilities of every kind and nature (collectively, “ Losses ”) which Deposit Taker may incur, sustain or be required to pay (other than those attributable to Deposit Taker’s gross negligence or willful misconduct) in connection with or arising out of this Agreement or the Deposit Account (including without limitation, the amount of any overdraft created in the Deposit Account resulting from a Chargeback, and to pay to Deposit Taker on demand the amount of all such Losses. Nothing in this Section, and no indemnification of Deposit Taker hereunder, shall affect in any way the indemnification obligations of LRC to BTMUCLF under the Pledge Agreement or other

 

5


Operative Documents. The provisions of this Section shall survive termination of this Agreement.

8. Irrevocable Agreement . LRC acknowledges that the agreements made by it and the authorizations granted by it herein are irrevocable and that the authorizations granted in Section 2 are powers coupled with an interest.

9. Set-off . Deposit Taker waives all of its existing and future rights of set-off and banker’s liens against the Deposit Account and all items (and proceeds thereof) that come into possession of Deposit Taker in connection with the Deposit Account.

10. Miscellaneous . This Agreement is binding upon the parties hereto and their respective successors and assigns (including any trustee of LRC appointed or elected in any action under the Bankruptcy Code) and shall inure to their benefit. Neither LRC nor BTMUCLF may assign their respective rights hereunder unless the prior written consent of the Deposit Taker is obtained. Neither this Agreement nor any provision hereof may be changed, amended, modified or waived, except by an instrument in writing signed by the parties hereto. Any provision of this Agreement that may prove unenforceable under any law or regulation shall not affect the validity of any other provision hereof. This Agreement shall be governed by the laws of the State of New York, without giving effect to the conflicts of laws provisions of such State (including, without limitation, Section 5-1401 of the New York General Secured Obligations Law). LRC hereby irrevocably submits to the jurisdiction of the courts of the U.S. Federal and New York State courts sitting in the Borough of Manhattan, New York and waives any objection to or based upon personal jurisdiction, venue, inconvenient forum or service of process in connection with any action or proceeding arising out of or in connection with this Agreement. LRC hereby irrevocably consents to service of process by first class or certified mail, or recognized courier for which a receipt is available, sent to the address shown in Deposit Taker’s records. This Agreement may be executed in any number of counterparts which together shall constitute one and the same instrument. LRC HEREBY IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE PLEDGE AGREEMENT OR ANY RELATED TRANSACTION.

11. Termination and Resignation . This Agreement may be terminated by agreement of BTMUCLF and LRC upon fifteen (15) days’ prior written notice to Deposit Taker; provided, however, that this Agreement shall terminate immediately upon notice from BTMUCLF that all of LRC’s obligations secured by the Pledge Agreement are satisfied. Deposit Taker may, at any time upon thirty (30) days’ prior written notice to BTMUCLF and LRC, terminate this Agreement and close the Deposit Account; provided, however, that a substitute deposit taker has been appointed for BTMUCLF or Participant (in its capacity as a Participant) under and as described in the Pledge Agreement. Upon termination of this Agreement any funds in the Deposit Account shall be subject to the direction of BTMUCLF, including any direction given by BTMUCLF that such funds be wired to another “Deposit Taker” designated for BTMUCLF or such Participant under and as defined in the Pledge Agreement.

 

6


12. Notices . Unless otherwise specifically provided herein, any notice or other communication required or permitted to be given shall be in writing addressed to the respective party as set forth below and may be personally served, telecopied or sent by overnight courier service and shall be deemed to have been given: (a) if delivered in person, when delivered; (b) if delivered by telecopy, on the date of transmission if transmitted on a Business Day before 4:00 P.M. (New York time) (but only if such telecopied document is also delivered by another method permitted by this Agreement by the next banking business day), or, if not, on the next succeeding Business Day; or (c) if delivered by reputable overnight courier, the banking business day on which such delivery is made by such courier.

Notices shall be addressed as follows:

 

BTMUCLF:    BTMU Capital Leasing & Finance, Inc.
   111 Huntington Avenue
   Boston, Massachusetts 02199
   Attention: Portfolio Servicing
   Telecopy:                                         
Deposit Taker:    The Bank of Tokyo-Mitsubishi UFJ, Ltd.
   Global Markets Division for the Americas
   1251 Avenues of the Americas
   New York, New York 10020-1104
   Attn: Charles Catalano, Director – Institutional Sales Department
   Telecopy:                                         
   Email:                                         
LRC:    Lam Research Corporation
   4300 Cushing Parkway
   Fremont, California 94538
   Attention: Odette Go, Treasurer
   Telecopy:                                         
   Email:                                         

or in any case, to such other address as the party addressed shall have previously designated by written notice to the serving party, given in accordance with this Section.

[signature page follows.]

 

7


Please countersign below to indicate your acceptance of our agreement herein.

 

Very truly yours,
LAM RESEARCH CORPORATION,
a Delaware corporation
By:  

 

Name:  

 

Title:  

 

 

ACCEPTED AND AGREED TO as of this

     day of             ,        

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
By:  

 

Name:  

 

Title:  

 

 

ACKNOWLEDGED AND AGREED TO as of this

     day of             ,        

BTMU CAPITAL LEASING & FINANCE, INC.,
a Delaware corporation
By:  

 

Name:  

 

Title:  

 


Exhibit B

TO PLEDGE AGREEMENT

NOTICE OF LRC’S REQUIREMENT OF

DIRECT PAYMENT TO BTMUCLF

BTMU Capital Leasing & Finance, Inc.

111 Huntington Avenue

Boston, Massachusetts 02199

Attention: Portfolio Servicing

 

  Re: Pledge Agreement (Port 101) dated as of December 31, 2013 between Lam Research Corporation and BTMU Capital Leasing & Finance, Inc.

Gentlemen:

Capitalized terms used in this letter are intended to have the meanings assigned to them in the Pledge Agreement (Port 101) referenced above (the “Pledge Agreement” ). This letter constitutes notice to you, as secured party under the Pledge Agreement, that pursuant to subparagraph 5(B) of the Pledge Agreement, LRC requires you to withdraw from the Deposit Account and to retain, as a payment from LRC required by Articles XX, XXI or XXII of the Lease, the following amount:

                    Dollars ($        )

on the following date (which, LRC acknowledges, must be the Base Term Expiration Date):

LRC acknowledges that its right to require such withdrawal is subject to the condition that LRC must give this notice to you at least ten days prior to the date of required withdrawal and payment specified above, and also to the condition that no Event of Default (under and as defined in the Pledge Agreement or as defined in the Lease referenced therein) has occurred and is continuing.

Please remember that the express terms of the Pledge Agreement allow the Deposit Takers to require notice of withdrawal at least seven days before Cash Collateral is to be withdrawn from the Deposit Accounts. Accordingly, you must notify the Deposit Takers seven days prior to the withdrawal of Cash Collateral required by this notice.

 

Lam Research Corporation
By:  

 

Name:  

 

Title:  

 

Exhibit 10.19

 

 

AMENDED AND RESTATED LEASE AGREEMENT

(Fremont 1)

D ATED AS OF D ECEMBER  31, 2013

B ETWEEN

BTMU CAPITAL LEASING & FINANCE, INC.,

AS L ESSOR ,

A ND

LAM RESEARCH CORPORATION,

AS L ESSEE

 

 


TABLE OF CONTENTS

 

            Page  

ARTICLE I DEFINITIONS

     1   

ARTICLE II LEASE OF LEASED PROPERTY; LEASE TERM

     2   

SECTION 2.1.

    

Acceptance and Lease

     2   

SECTION 2.2.

    

Lease Term

     2   

ARTICLE III TAXES

     2   

SECTION 3.1.

    

Impositions

     2   

SECTION 3.2.

    

Contests

     3   

ARTICLE IV RENT

     3   

SECTION 4.1.

    

Rental Payments

     3   

SECTION 4.2.

    

Supplemental Rent

     3   

SECTION 4.3.

    

Method and Amount of Payment

     3   

SECTION 4.4.

    

Late Payment

     3   

ARTICLE V NET LEASE

     4   

ARTICLE VI UTILITY CHARGES

     5   

ARTICLE VII CONDITION AND USE OF LEASED PROPERTY

     6   

ARTICLE VIII LIENS; EASEMENTS

     6   

SECTION 8.1.

    

Liens

     6   

SECTION 8.2.

    

Easements

     7   

ARTICLE IX MAINTENANCE AND REPAIR; ALTERATIONS AND ADDITIONS

     8   

SECTION 9.1.

    

Maintenance and Repair; Compliance With Law

     8   

SECTION 9.2.

    

Improvements and Alterations

     8   

SECTION 9.3.

    

Alterations Subject to Lease

     9   

SECTION 9.4.

    

Maintenance and Repair Reports

     10   

SECTION 9.5.

    

Permitted Contests

     10   

ARTICLE X USE

     11   

SECTION 10.1.

    

Use

     11   

SECTION 10.2.

    

Trade Compliance

     11   

ARTICLE XI INSURANCE

     11   

SECTION 11.1.

    

Required Coverages

     11   

SECTION 11.2.

    

Delivery of Insurance Certificates

     13   

 

i


TABLE OF CONTENTS

(continued)

 

            Page  

ARTICLE XII ASSIGNMENT AND SUBLEASING

     14   

ARTICLE XIII LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE

     15   

SECTION 13.1.

    

Event of Loss

     15   

SECTION 13.2.

    

Condemnation

     16   

SECTION 13.3.

    

Casualty

     16   

SECTION 13.4.

    

Proceeds

     17   

SECTION 13.5.

    

Negotiations

     17   

SECTION 13.6.

    

No Rent Abatement

     17   

ARTICLE XIV CERTAIN DUTIES AND RESPONSIBILITIES

     17   

ARTICLE XV INSPECTION

     18   

ARTICLE XVI ENVIRONMENTAL MATTERS

     18   

SECTION 16.1.

    

Environmental Matters

     18   

SECTION 16.2.

    

Notice of Environmental Matters

     19   

ARTICLE XVII EVENTS OF DEFAULT

     19   

ARTICLE XVIII ENFORCEMENT

     22   

SECTION 18.1.

    

Remedies

     22   

SECTION 18.2.

    

Proceeds of Sale; Deficiency

     26   

SECTION 18.3.

    

Waiver of Certain Rights

     26   

SECTION 18.4.

    

Remedies Cumulative; No Waiver; Consents

     27   

ARTICLE XIX RIGHT TO CURE

     27   

ARTICLE XX EARLY TERMINATION OPTION; OBLIGATION TO PURCHASE; MID-TERM REMARKETING OPTION

     27   

SECTION 20.1.

    

Early Termination Option

     27   

SECTION 20.2.

    

Required Purchase

     28   

SECTION 20.3.

    

Mid-term Remarketing Option

     28   

ARTICLE XXI END OF TERM OPTIONS

     28   

SECTION 21.1.

    

End of Term Options

     28   

SECTION 21.2.

    

Election of Options

     29   

ARTICLE XXII RETURN OPTION

     29   

SECTION 22.1.

    

Return Option Procedures

     29   

 

ii


TABLE OF CONTENTS

(continued)

 

            Page  

SECTION 22.2.

    

Sale

     31   

SECTION 22.3.

    

Application of Sale Proceeds and Recourse Payments

     32   

SECTION 22.4.

    

Failure to Sell Leased Property

     34   

SECTION 22.5.

    

Surrender and Return

     36   

ARTICLE XXIII MISCELLANEOUS

     37   

SECTION 23.1.

    

Binding Effect; Successors and Assigns; Survival

     37   

SECTION 23.2.

    

Severability

     38   

SECTION 23.3.

    

Notices

     38   

SECTION 23.4.

    

Amendment; Complete Agreements

     38   

SECTION 23.5.

    

Headings

     38   

SECTION 23.6.

    

Original Executed Counterpart

     38   

SECTION 23.7.

    

Governing Law

     39   

SECTION 23.8.

    

No Joint Venture

     39   

SECTION 23.9.

    

No Accord and Satisfaction

     39   

SECTION 23.10.

    

Survival

     39   

SECTION 23.11.

    

Transfer of Leased Property

     39   

SECTION 23.12.

    

Enforcement of Certain Warranties

     40   

SECTION 23.13.

    

Security Interest in Funds

     40   

SECTION 23.14.

    

Submission to Jurisdiction

     40   

SECTION 23.15.

    

Jury Trial

     41   

SECTION 23.16.

    

Payments

     41   

 

EXHIBITS   
EXHIBIT A    Description of Site

 

iii


AMENDED AND RESTATED LEASE AGREEMENT

(Fremont 1)

THIS AMENDED AND RESTATED LEASE AGREEMENT (FREMONT 1), dated as of December 31, 2013 (as amended, supplemented, or otherwise modified from time to time (this “ Lease ”), is between BTMU CAPITAL LEASING & FINANCE, INC., a Delaware corporation, as Lessor (the “ Lessor ”) and whose principal offices are located at 111 Huntington Avenue, Boston, Massachusetts 02199, and LAM RESEARCH CORPORATION, a Delaware corporation, as Lessee (the “ Lessee ) and whose principal offices are located at 4300 Cushing Parkway, Fremont, California 95438.

WITNESSETH:

Lessee and Lessor are entering into this Lease and the Operative Documents.

A. Subject to the terms and conditions set forth in the Operative Documents, on the Closing Date, Lessor has agreed to acquire the land described on Exhibit A attached hereto (the “ Site ”) and the existing improvements thereon (the “ Existing Improvements ”) and Personal Property used thereon (collectively, the “ Leased Property ”) which Leased Property is subject to that certain Lease Agreement (Fremont/Building #4), dated as of December 21, 2007 (“ Existing Lease Fremont 1 ”), between BNP Paribas Leasing Corporation, a Delaware corporation (the “ Existing Lessor ”), and the Lessee.

B. Existing Lessor has assigned all of its right, title and interest in and to the Existing Lease Fremont 1 and the Leased Property to Lessor.

C. The Lessee and the Lessor desire to continue to lease the Leased Property and to amend and restate the Existing Lease in accordance with the terms and conditions set forth below.

NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, hereby agree that the Existing Lease is hereby amended and restated in its entirety as follows:

ARTICLE I

DEFINITIONS

For all purposes hereof, the capitalized terms used herein and not otherwise defined shall have the meanings assigned thereto in Appendix I to that certain Participation Agreement dated as of even date herewith, between the Lessee and the Lessor (as the same may be amended, modified, restated or supplemented from time to time, the “ Participation Agreement ”).


ARTICLE II

LEASE OF LEASED PROPERTY; LEASE TERM

SECTION 2.1. Acceptance and Lease.

The Lessor, subject to the satisfaction or waiver of the conditions set forth in Section 3.1 of the Participation Agreement, hereby agrees to lease all of the Leased Property (the location of which is more particularly described on Exhibit A hereto) to the Lessee hereunder and the Lessee hereby agrees, expressly for the direct benefit of the Lessor, to lease from the Lessor for the Lease Term, all of the Leased Property. Without limiting the generality of the foregoing, Lessee acknowledges that the leasehold estate conveyed by this Lease and Lessee’s rights hereunder are expressly made subject and subordinate to the terms and conditions of the matters listed in Schedule B to the Title Policy and all other Permitted Liens, and any other Liens not constituting Lessor Liens.

Subject to Articles XII and XVIII hereof, the Lessor will not lease nor otherwise make the Leased Property, in whole or in part, available to any Person other than the Lessee and its permitted successors, assigns and sublessees during the Lease Term, and (without derogating in any way from the Lessor’s rights under Article XV hereof) during the Lease Term the Lessee shall have unimpeded physical control of the Leased Property notwithstanding the Lessor’s rights to inspect the Leased Property under Article XV.

SECTION 2.2. Lease Term.

Unless earlier terminated, the term of this Lease for the Leased Property shall consist of a base lease term (the “ Base Term ” or the “ Lease Term ”) which shall commence on and including the Closing Date (such day, the “ Base Term Commencement Date ”) and ending on December 31, 2020.

ARTICLE III

TAXES

SECTION 3.1. Impositions.

During the Lease Term, Lessee agrees to pay prior to delinquency without penalty or interest all Taxes imposed upon or levied against the Leased Property or any part thereof or interest therein consistent with Section 7.2 of the Participation Agreement. The Site consists of one or more separate tax lots for real property tax assessment purposes. Any Tax relating to a fiscal period of any taxing Authority falling partially within and partially outside the Lease Term shall be apportioned and adjusted between Lessor and Lessee. Lessee covenants to furnish Lessor, upon Lessor’s request, within forty-five (45) days after the last date when any Tax must be paid by Lessee, official receipts of the appropriate taxing Authority or other proof reasonably satisfactory to Lessor evidencing the payment thereof.

 

2


SECTION 3.2. Contests.

Lessee shall have the right to contest any Tax in accordance with Section 7.2(b) of the Participation Agreement.

ARTICLE IV

RENT

SECTION 4.1. Rental Payments.

Commencing on the first Payment Date following the Base Term Commencement Date, the Lessee shall pay to the Lessor Basic Rent, without offset or deduction, (i) on each Payment Date, (ii) on the Return Date, and (iii) on any date on which this Lease terminates or upon demand following an Event of Default pursuant to Article XVII.

SECTION 4.2. Supplemental Rent.

The Lessee shall pay to the Lessor, or to whomever shall be entitled thereto as expressly provided herein or in any other Operative Document (and the Lessor hereby directs the Lessee, on behalf of the Lessor, to so pay any such other Person), any and all Supplemental Rent promptly as the same shall become due and payable and, in the event of any failure on the part of the Lessee to pay any Supplemental Rent, the Lessor shall have all rights, powers and remedies provided for herein or by law or in equity or otherwise in the case of nonpayment of Basic Rent. Lessee hereby reaffirms that its obligation to pay Supplemental Rent shall include the payment of any and all Additional Costs. The expiration or other termination of the Lessee’s obligations to pay Basic Rent hereunder shall not limit or modify the obligations of the Lessee with respect to Supplemental Rent.

SECTION 4.3. Method and Amount of Payment.

Basic Rent and Supplemental Rent shall be paid by wire transfer by the Lessee to the Lessor (or, in the case of Supplemental Rent, to such Person as may be entitled thereto) at such place as the Lessor (or such other Person) shall specify in writing to the Lessee pursuant to Schedule II to the Participation Agreement. Each payment of Rent shall be made by the Lessee prior to 11:00 A.M. New York time (and payments made after such time shall be deemed to have been made on the next day) at the place of payment in funds consisting of Dollars which shall be immediately available on the scheduled date when such payment shall be due unless the scheduled date shall not be a Business Day, in which case such payment shall be due and made on the next succeeding Business Day. The provisions of the foregoing sentence of this Section 4.3 shall be applicable only to Basic Rent and to Supplemental Rent payable to, or on behalf of or for the account of, the Lessor and any other Indemnitee.

SECTION 4.4. Late Payment.

If any Basic Rent shall not be paid within three (3) Business Days of the due date applicable thereto, the Lessee shall pay to the Lessor, or if any Supplemental Rent payable to or on behalf or for the account of the Lessor or other Indemnitee is not paid when due, the Lessee

 

3


shall pay to whomever shall be entitled thereto, in each case as Supplemental Rent, interest at the Overdue Rate (to the maximum extent permitted by law) on such overdue amount from and including the due date thereof (without regard to any applicable grace period) to but excluding the Business Day of payment thereof.

ARTICLE V

NET LEASE

This Lease shall constitute a net lease and, notwithstanding any other provision of this Lease, it is intended that Basic Rent, Supplemental Rent, the Lease Balance and all other amounts due and payable under the Operative Documents shall be paid without counterclaim, setoff, deduction or defense of any kind and without abatement, suspension, deferment, diminution or reduction of any kind, and the Lessee’s obligation to pay all such amounts throughout the Lease Term is absolute and unconditional. The obligations and liabilities of the Lessee hereunder shall, to the fullest extent permitted by Applicable Laws, in no way be released, discharged or otherwise affected for any reason (other than the indefeasible payment or performance in full of such liability or obligation) including: (a) any defect in the condition, merchantability, design, construction, quality or fitness for use of the Leased Property or any portion thereof, or any failure of the Leased Property or any portion thereof to comply with all Applicable Laws including any inability to occupy or use the Leased Property or any portion thereof by reason of such non-compliance; (b) any damage to, abandonment, loss, contamination of or Release from or destruction of or any requisition or taking of the Leased Property or any portion thereof including eviction; (c) any restriction, prevention or curtailment of or interference with any use of the Leased Property or any portion thereof, including eviction; (d) any defect in title to or rights to the Leased Property or any portion thereof or any Lien on such title or rights or on the Leased Property or any portion thereof; (e) any change, waiver, extension, indulgence or other action or omission or breach in respect of any obligation or liability of or by the Lessor; (f) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceedings relating to the Lessee, the Lessor or any other Person, or any action taken with respect to this Lease by any trustee or receiver of the Lessee, the Lessor or any other Person, or by any court, in any such proceeding; (g) any claim that the Lessee has or might have against any Person, including the Lessor or any Indemnitee arising from any of the circumstances set forth in this sentence (but will not constitute a waiver of such claim); (h) any failure on the part of the Lessor to perform or comply with any of the terms of this Lease, any other Operative Document or of any other agreement whether or not related to the Overall Transaction; (i) any invalidity or unenforceability or disaffirmance against or by the Lessee of this Lease or any provision hereof or any of the other Operative Documents or any provision of any thereof; (j) the impossibility of performance by the Lessee, the Lessor or both; (k) any action by any court, administrative agency or other Authority; (l) the construction of any Alterations; (m) the failure of the Lessee to achieve any accounting or tax benefits or the characterization of the transaction intended by Section 2.12 of the Participation Agreement; or (n) any other occurrence whatsoever, whether similar or dissimilar to the foregoing, whether or not the Lessee shall have notice or knowledge of any of the foregoing. Except as specifically set forth in Article XIII or Section 20.1 of this Lease, this Lease shall be noncancellable by the Lessee for any reason whatsoever and the Lessee, to the fullest extent permitted by Applicable Laws, waives all rights now or hereafter conferred by statute or otherwise to quit, terminate or surrender this

 

4


Lease, or to any diminution, abatement or reduction of Rent payable by the Lessee hereunder. If for any reason whatsoever this Lease shall be terminated or amended in whole or in part by operation of law or otherwise, except as expressly provided in Article XIII or Section 20.1 of this Lease, the Lessee shall, unless prohibited by Applicable Laws, pay to the Lessor (or, in the case of Supplemental Rent, to whomever shall be entitled thereto) a compensation in an amount equal to each Rent payment (including the Lease Balance and any other amount due and payable under any Operative Documents) at the time and in the manner that such payment would have become due and payable under the terms of this Lease if it had not been terminated or amended in whole or in part. Each payment of Rent including any payment of the Lease Balance and Break Even Price made by the Lessee hereunder shall be final and, absent manifest error in the computation of the amount thereof, the Lessee shall not seek or have any right to recover all or any part of such payment from the Lessor or any party to any agreements related thereto for any reason whatsoever. Lessee assumes the sole responsibility for the condition, use, operation, maintenance, and management of the Leased Property and the Lessor shall have no responsibility in respect thereof and shall have no liability for damage to the Leased Property or the property relating thereto of the Lessee or any subtenant of the Lessee on any account or for any reason whatsoever. Without affecting the Lessee’s obligation to pay Basic Rent, Supplemental Rent, the Lease Balance and all other amounts due and payable under the Operative Documents or to perform its obligations under the Operative Documents, the Lessee may, notwithstanding any other provision of the Operative Documents (other than Section 8.11 of the Participation Agreement), seek damages of any kind or any other remedy at law or equity against the Lessor for such willful misconduct or gross negligence or negligence in the handling of funds or for a breach by the Lessor of its obligations under this Lease or the other Operative Documents.

ARTICLE VI

UTILITY CHARGES

During the Lease Term the Lessee shall pay or cause to be paid all development and improvement charges and all charges for electricity, power, gas, oil, water, telephone, sanitary sewer service and all other rents, utilities or public dues used in or on the Improvements or the Site during the Lease Term. Lessee shall be entitled to receive any credit or refund with respect to any utility charge or public dues paid by the Lessee and the amount of any credit or refund received by the Lessor on account of any utility charges paid by the Lessee, net of the costs and expenses reasonably incurred by the Lessor in obtaining such credit or refund, which amount shall be promptly paid over to the Lessee. All charges for utilities imposed or public dues with respect to the Improvements and the Site for a billing period during which this Lease expires or terminates (except pursuant to Article XX or Section 21.1(a), in which case the Lessee shall be solely responsible for all such charges) shall be adjusted and prorated on a daily basis between the Lessee and any purchaser of the Leased Property, and each party shall pay or reimburse the other for each party’s pro rata share thereof; provided, that in no event shall the Lessor have any liability therefor.

 

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ARTICLE VII

CONDITION AND USE OF LEASED PROPERTY

LESSEE ACKNOWLEDGES AND AGREES THAT IT IS LEASING THE LEASED PROPERTY “AS IS” IN ITS PRESENT CONDITION, SUBJECT TO (A) ANY RIGHTS OF ANY PARTIES IN POSSESSION THEREOF OR OF THE SITE, (B) THE STATE OF THE TITLE THERETO OR TO THE SITE EXISTING AT THE TIME THE LESSOR ACQUIRED ITS INTEREST IN THE LEASED PROPERTY, (C) ANY STATE OF FACTS WHICH AN ACCURATE SURVEY OR PHYSICAL INSPECTION MIGHT SHOW (INCLUDING ANY SURVEY DELIVERED ON OR PRIOR TO THE CLOSING DATE), (D) ALL APPLICABLE LAWS, AND (E) ANY VIOLATIONS OF APPLICABLE LAWS WHICH MAY EXIST AT THE COMMENCEMENT OF THE LEASE TERM. LESSEE HAS EXAMINED THE LEASED PROPERTY AND (INSOFAR AS THE LESSOR IS CONCERNED) HAS FOUND THE SAME TO BE SATISFACTORY. WITHOUT LIMITING THE SPECIFIC REPRESENTATIONS AND WARRANTIES IN ARTICLE IV OF THE PARTICIPATION AGREEMENT, THE LESSOR HAS NOT MADE NOR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, NOR SHALL BE DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO THE TITLE TO THE LEASED PROPERTY OR THE SITE OR TO THE VALUE, MERCHANTABILITY, HABITABILITY, CONDITION, OR FITNESS FOR USE OF THE LEASED PROPERTY OR THE SITE, OR ANY PART THEREOF, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASED PROPERTY OR THE SITE, OR ANY PART THEREOF, AND THE LESSOR SHALL NOT BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR THE FAILURE OF THE LEASED PROPERTY OR ANY PORTION THEREOF, TO COMPLY WITH ANY APPLICABLE LAWS, except that the Lessor hereby represents and warrants that as of the date of this Lease, the Leased Property is free of Lessor Liens. The Lessee, having been afforded full opportunity to inspect the Leased Property, is satisfied with the results of its inspections and is entering into this Lease solely on the basis of the results of its own inspections, and all risks incident to the matters discussed in the preceding sentence, as between the Lessor, on the one hand, and the Lessee, on the other, are to be borne by the Lessee. The provisions of this Article VII have been negotiated, and, except to the extent otherwise expressly stated, the foregoing provisions are intended to be a complete exclusion and negation of any representations or warranties by the Lessor, express or implied, with respect to the Leased Property (or any interest therein) that may arise pursuant to any law now or hereafter in effect or otherwise.

ARTICLE VIII

LIENS; EASEMENTS

SECTION 8.1. Liens.

During the Lease Term and subject to Lessee’s right to engage in Permitted Contests in accordance with Section 9.5, the Lessee will not directly or indirectly create, incur, assume or suffer to exist any Lien (other than Permitted Liens) on or with respect to any portion of the Leased Property or any portion thereof or the Lessor’s interest therein. Lessee, at its own expense, will promptly pay, satisfy and otherwise take such actions as may be necessary to keep

 

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the Leased Property free and clear of, and duly to discharge, eliminate or bond in a manner reasonably satisfactory to the Lessor, any such Lien (other than Permitted Liens) if the same shall arise at any time.

SECTION 8.2. Easements.

Notwithstanding Section 8.1, at the request of Lessee, Lessor shall, from time to time during the Lease Term and upon reasonable advance written notice from Lessee and receipt of the materials specified below, consent to and join in any (i) grant of easements, licenses, rights of way and other rights in the nature of easements, including utility easements which in each case facilitate Lessee’s use, development and operation of the Leased Property, (ii) release or termination of easements, licenses, rights of way or other rights in the nature of easements which releases and terminations are for the benefit of the Site or the Improvements or any portion thereof, (iii) dedication or transfer of portions of the Site, not improved with a building, for road, highway or other public purposes, provided the same are for the benefit of the Site or Improvements, (iv) execution of agreements for ingress and egress and amendments to any covenants and restrictions affecting the Site or Improvements or any portion thereof, and (v) request to any Authority for platting or subdivision or replatting or resubdivision approval with respect to the Site or any portion thereof or any parcel of land of which the Site or any portion thereof forms a part or a request for any variance from zoning or other governmental requirements, provided that :

(a) any such action shall be at the sole cost and expense of Lessee and Lessee shall pay all reasonable out-of-pocket costs of the Lessor in connection therewith (including the reasonable fees of attorneys, architects, engineers, planners, appraisers and other professionals reasonably retained by the Lessor in connection with any such action);

(b) Lessee shall have delivered to the Lessor a certificate of a Responsible Officer of Lessee stating that:

(i) such action will not cause the Leased Property, the Site or the Improvements or any portion thereof to fail to comply in any material respect with the provisions of the Lease or any other Operative Documents, or in any material respect with Applicable Laws; and

(ii) such action will not materially reduce the Fair Market Value, utility or useful life of the Leased Property, the Site or the Improvements or Lessor’s interest therein;

(c) in the case of any release or conveyance, if the Lessor so reasonably requests, the Lessee will cause to be issued and delivered to the Lessor by the Title Insurance Company endorsements to the Title Policies (to the extent available) pursuant to which the Title Insurance Company agrees that its liability for the payment of any loss or damage under the terms and provisions of the Title Policies will not be affected by reason of the fact that a portion of the real property referred to in Schedule A of the Title Policies has been released or conveyed by Lessor; and

(d) there shall be no abatement of Rent as a result thereof.

 

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ARTICLE IX

MAINTENANCE AND REPAIR; ALTERATIONS AND ADDITIONS

SECTION 9.1. Maintenance and Repair; Compliance With Law.

At all times during the Lease Term, the Lessee shall (a) maintain the Improvements and the Site in good operating condition and repair, subject to ordinary wear and tear, and in any event in a manner consistent with other similar facilities or buildings owned or leased by the Lessee and its Subsidiaries; (b) subject to Section 9.5, maintain the Improvements and the Site in accordance with all Applicable Laws (including all Environmental Laws) in all material respects, whether or not such maintenance requires structural modifications; (c) maintain the Improvements and the Site in such a way that the Improvements and the Site shall not constitute a danger to persons or things; (d) comply in all material respects with the Insurance Requirements which are in effect at any time with respect to the Leased Property or any part thereof; (e) use the Improvements and the Site only in accordance with Article X; (f) make all necessary or appropriate repairs, replacements and renewals of the Improvements and the Site or any part thereof which may be required to keep the Improvements and the Site in the condition required by the preceding clauses (a) through (e), whether interior or exterior, structural or nonstructural, ordinary or extraordinary, foreseen or unforeseen, and including repairs, replacements and renewals that would constitute capital expenditures under GAAP if incurred by an owner of property; and (g) procure, maintain and comply in all material respects with all licenses, permits, orders, approvals, consents and other authorizations required for the construction, use, maintenance and operation of the Improvements and the Site. The Lessee waives any right that it may now have or hereafter acquire to (x) require the Lessor to maintain, repair, replace, alter, remove or rebuild all or any part of the Improvements or the Site or (y) make repairs at the expense of the Lessor pursuant to any Applicable Laws or other agreements.

SECTION 9.2. Improvements and Alterations.

(a) The Lessee, at the Lessee’s own cost and expense, (i) shall make alterations, renovations, repairs, improvements and additions to the Leased Property or any part thereof and substitutions and replacements therefor (collectively, “ Alterations ”) which are (A) necessary to repair or maintain the Improvements or the Site in the condition required by Section 9.1 or (B) necessary or advisable to restore the Improvements and the Site to its condition existing prior to a Casualty or Condemnation to the extent required pursuant to Article XIII, and (ii) so long as no Material Default or Event of Default has occurred and is continuing, may undertake Alterations on the Leased Property so long as such Alterations comply in all material respects with Applicable Laws and are consistent and comply with Section 9.1 and subsection (b) of this Section 9.2.

(b) The making of any Alterations pursuant to subsection (a)(i) above of this Section 9.2 must be in compliance with the following requirements:

The Lessee shall not make any Alterations in violation of the terms of any restriction, easement, condition, covenant or other similar matter affecting title to or binding on the Improvements or the Site.

 

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(i) No Alterations shall be undertaken until the Lessee shall have procured and paid for, so far as the same may be required from time to time, all permits and authorizations relating to such Alterations of all municipal and other Authorities having jurisdiction over the Improvements or the Site. Lessor, at the Lessee’s expense, shall join in the application for any such permit or authorization and execute and deliver any document in connection therewith, whenever such joinder is necessary or advisable; provided that, however, such joinder shall not constitute or be deemed to constitute, any assumption or responsibility or liability whatsoever.

(ii) The Alterations shall be completed in a good and workmanlike manner and in compliance in all material respects with all Applicable Laws then in effect and with the Insurance Requirements.

(iii) All Alterations shall, when completed, be of such a character as to not materially diminish (A) the utility of the Improvements as a corporate office complex including a corporate office building and any uses ancillary thereto, (B) the then current Fair Market Value as determined by reference to the Appraisal, or (C) the Fair Market Value as determined by reference to the Appraisal as of the scheduled expiration date of the Lease Term.

(iv) The Lessee shall have made adequate arrangements for payment of the cost of all Alterations when due so that the Improvements and the Site shall at all times be free of Liens for labor and materials supplied or claimed to have been supplied to the Improvements or the Site, other than Permitted Liens; provided, that the Lessee shall have the right to engage in Permitted Contests in accordance with Section 9.5.

(v) The Alterations must be located solely on the Site.

SECTION 9.3. Alterations Subject to Lease.

The following Alterations without further act shall be deemed to constitute a part of the Leased Property and be subject to this Lease:

(a) Alterations that are in replacement of or in substitution for a portion of the Improvements;

(b) Alterations that are required to be made pursuant to the terms of Section 9.1 or 9.2(a)(i) hereof; or

(c) Alterations that are Non-severable or immovable.

To the extent any Alterations are deemed to constitute part of the Leased Property pursuant to the preceding sentence, the Lessee hereby acknowledges and agrees that such Alterations will become upon installation property of the Lessor. The Lessee will, at the Lessor’s request, execute and deliver any documents reasonably necessary to evidence or cause the vesting of such interests in and to such Alterations to the Lessor.

 

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If such Alterations are not within any of the categories set forth in clauses (a) through (c) of this Section 9.3 and have not become property of the Lessor in accordance therewith, then such Alterations shall remain the sole property of the Lessee and such Alterations shall not be deemed to be Alterations which are part of the Leased Property. All such Alterations not constituting part of the Leased Property may, so long as no Event of Default is continuing, be removed at any time by the Lessee other than Alterations the removal of which would result in a violation of Applicable Laws. The Lessee shall at its expense prior to the Lease Expiration Date repair any damage to the Improvements or the Site caused by the removal of such Alterations. Lessor (or the purchaser of the Leased Property if the Lessee elects the Return Option or in connection with a sale pursuant to Section 18.1) may purchase from the Lessee any such Alterations (if not already owned by the Lessor) that the Lessee intends to remove from the Improvements or the Site prior to the Lease Expiration Date, which purchase shall be at the Fair Market Value of such Alterations as determined by the Appraiser at the time of such purchase.

SECTION 9.4. Maintenance and Repair Reports.

During the Lease Term, the Lessee shall keep maintenance and repair reports in sufficient detail, on the same basis as records are kept for similar properties owned or leased by the Lessee or its Subsidiaries, to indicate the nature and date of major work done. Such reports shall be kept on file by the Lessee at its offices during the Lease Term, and shall be made available at the Lessee’s office to the Lessor upon reasonable request.

SECTION 9.5. Permitted Contests.

If, to the extent and for so long as (a) a contest of the legality, validity or applicability to the Improvements or the Site or any interest therein of, or the operation, use or maintenance thereof by the Lessee of (i) any Applicable Laws, (ii) any term or condition of, or any revocation or amendment of, or other proceeding relating to, any Governmental Action, or (iii) any Lien or Tax shall be made in good faith, by appropriate proceedings initiated timely and diligently prosecuted, by the Lessee or (b) compliance with such Applicable Laws, Governmental Action, Lien or Tax shall have been excused or exempted by a valid nonconforming use permit, waiver, extension or forbearance, the Lessee shall not be required to comply with such Applicable Laws, Governmental Action, Lien or Tax but only if and so long as any such contest shall constitute a Permitted Contest.

Lessor will not be required to join in any Permitted Contest pursuant to this Section 9.5 unless a provision of any Applicable Laws requires, or, in the good faith opinion of the Lessee, it is helpful to the Lessee that such proceedings be brought by or in the name of the Lessor; and in that event, the Lessor will join in the proceedings or permit them or any part thereof to be brought in its name if and so long as (i) no Event of Default is continuing, (ii) the Lessee has not elected the Return Option, and (iii) the Lessee pays all related out-of-pocket expenses, and the Lessee shall be deemed to have acknowledged and agreed that the Lessor is indemnified therefor pursuant to Section 7.1 of the Participation Agreement.

 

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ARTICLE X

USE

SECTION 10.1. Use.

The Site on which the Improvements are located shall be used solely for the purposes of a corporate office complex including a corporate office building and any uses ancillary thereto. Lessee shall not use the Leased Property or any portion thereof for any purpose or in any manner that would diminish (A) the utility of the Improvements as a corporate office complex including a corporate office building and any uses ancillary thereto, (B) the then current Fair Market Value as determined by reference to the Appraisal, or (C) the Fair Market Value as determined by reference to the Appraisal as of the scheduled expiration date of the Lease Term. Lessee shall use the Leased Property in compliance in all material respects with (a) any Applicable Laws (including Environmental Laws), except to the extent permitted by Section 9.5, (b) any Insurance Requirements, and (c) all of the Operative Documents. Lessee shall pay, or cause to be paid, all charges and costs required in connection with the use of the Leased Property in accordance with this Lease and the Participation Agreement. Lessee shall not commit or permit any intentional waste of the Leased Property or any material part thereof.

SECTION 10.2. Trade Compliance.

Lessee shall comply with the Trading with the Enemy Act, as amended, and all of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended), federal embargo laws and regulations, and the USA PATRIOT Act in the conduct of all of its activities, including the following: (i) the use, assignment, or sublease of Site or the Improvements by Prohibited Persons; and (ii) the export of any products manufactured at the Improvements to any destination or Prohibited Person.

ARTICLE XI

INSURANCE

SECTION 11.1. Required Coverages.

During the Lease Term, the Lessee will provide or cause to be provided insurance with respect to the Improvements and the Site of a character usually obtained by the Lessee against loss or damage of the kinds and in the amounts customarily insured against by the Lessee with respect to similar properties, and carry such other insurance as is usually carried by the Lessee with respect to similar properties; provided, that in any event the Lessee will maintain:

(a) Comprehensive General Liability Insurance . Lessee will maintain a comprehensive general liability insurance policy on an occurrence basis, including contractual liability and pollution liability insurance for sudden and accidental contamination occurring on, in or about the Improvements or the Site with a combined single limit against claims for third-party bodily injury, including death and third-party property damage in an amount at least equal to $25,000,000 per occurrence and $25,000,000 in the aggregate, which may be a blanket policy. Such coverage may be subject to deductibles or self-insurance up to an amount that is customarily carried by the Lessee with respect to similar property. Such liability insurance shall

 

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name the Lessor as an additional insured and the Lessor shall continue to be named as an additional insured and such policy shall remain in effect until at least the third anniversary of the end of the Lease Term.

(b) Builder’s Risk Insurance . At any other time in connection with any construction of or Alteration to any Improvements, the Lessee shall arrange, on behalf of the Lessor and all contractors, to obtain and keep in force an all-risk builder’s risk insurance with respect to the Improvements and the construction of such Alterations or Improvements insuring the Lessor’s interest in the Improvements and the construction of such Alterations or Improvements including resulting damage from collapse, coverage for fire, hurricanes, flood and earthquakes and coverage against damage or loss caused by machinery accidents and operational and performance testing and start-up, with extended coverage, in an amount not less than the full replacement cost of the insured building (without deduction for depreciation). Such coverage shall provide (1) coverage for insuring the buildings, non-temporary structures, machinery, equipment (exclusive of manufacturing and laboratory equipment), facilities, fixtures, supplies and other property constituting part of the Leased Properties including but not limited to boiler and machinery insurance covering pressure vessels, air tanks, boilers, machinery, pressure piping, heating, ventilation and air conditioning equipment, and elevator and escalator equipment, (2) inland transit coverage from designated storage facilities, (3) off-site (within 1000 feet of the insured Improvements) coverage with sublimits sufficient to insure the full replacement value of any equipment, supplies and materials not stored at the Land, (4) removal of debris, (5) increased cost of construction, and (6) coverage for foundations and other property below the surface of the ground, but the interest of contractors, subcontractors and agents in insured property during construction at the insured location to the extent of Lessee’s legal liability for insured physical loss or damage to such property. Such coverage shall (x) not be subject to any self-insurance and shall be subject to a deductible of no more than $50,000 per occurrence except for (i) $100,000 per occurrence for water damage, (ii) $1,000,000 per occurrence for earthquake damage and (iii) $500,000 per occurrence for flood damage, and (y) be in such form and amounts and covering such risks as were approved by the Lessor on the Closing Date. Lessee shall promptly deliver all reports or information to the appropriate recipient which may be required under such policy or policies in order to ensure that the coverage provided with respect to the construction of such Alterations or Improvements is in an amount at least equal to the aggregate Advances funded under the Operative Documents for the construction of such Alterations or Improvements.

(c) Property Insurance . During the Base Term, Lessee will maintain all-risk insurance (including builder’s risk insurance including coverage for fire, hurricanes, flood and earthquakes and coverage against damage or loss caused by machinery accidents and operational and performance testing and start-up) against loss or damage covering the Leased Property or any portion thereof against such risks customarily maintained by the Lessee with respect to similar properties in an amount not less than the replacement cost of the Improvements, including any costs that may be required to cause the Leased Property to be reconstructed to comply with then current Applicable Laws. Such property insurance coverage may be subject to deductibles or self-insurance up to an amount that is customarily carried by the Lessee with respect to similar property. Such property insurance shall name each of the Lessor as sole loss payee and as an additional insured.

 

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(d) Other Insurance . Insurance shall not cover any terrorism or war risks unless the Lessee carries insurance for such risks generally on similar property it owns or leases.

Insurance provided pursuant to this Section 11.1 (other than permitted self-insurance) shall be written by reputable insurance companies that are financially sound and solvent with a rating of at least “A-” by A.M. Best’s or Standard and Poor’s or by other insurers approved in writing by the Lessor (including consistent with the Lessee’s past practices, insurance companies affiliated with the Lessee). Each policy referred to in this Section 11.1 shall provide that: (i) it will not be canceled or allowed to lapse without renewal, except after not less than thirty (30) days’ prior written notice to the Lessor or ten (10) days’ prior notice to the Lessor in the case of non-payment of premium; (ii) other than standard policy exclusions, there is no provision in the policies where the interests of the Lessor shall be invalidated by any act or negligence of or breach of warranty by the Lessee or any Person having an interest in the Improvements or the Site; (iii) such insurance is primary and non-contributory with respect to any other insurance carried by or available to the Lessor; (iv) the insurer shall waive customary rights of subrogation, setoff, counterclaim, or other deduction, whether by attachment or otherwise, against any additional insured or loss payee; (v) such general liability policy and pollution legal liability policy shall contain a severability clause providing for coverage of the Lessor as if a separate policy had been issued to the Lessor; (vi) the Lessee will notify the Lessor promptly of any policy cancellation, reduction in policy limits, lapse, modification or amendment, and (vii) the insurer shall not allow for unpaid premiums to be paid by the Lessor.

Except as expressly set forth herein, the insurance required to be maintained by the Lessee under this Section 11.1 may be subject to such deductible amounts or periods, as applicable as is consistent with the Lessee’s practice for other properties similar to the Leased Properties owned or leased by the Lessee, and may be carried under blanket policies maintained by or on behalf of the Lessee so long as such policies otherwise comply with the provisions of this Section 11.

SECTION 11.2. Delivery of Insurance Certificates.

Pursuant to Section 3.1(c) of the Participation Agreement, the Lessee shall deliver to the Lessor certificates of insurance reasonably satisfactory to the Lessor evidencing the existence of all insurance required to be maintained hereunder and setting forth the respective coverages, limits of liability, carrier, policy number and period of coverage. Thereafter, throughout the Lease Term, at the time each of the Lessee’s insurance policies is renewed (but in no event less frequently than once every twelve (12) months) or upon written request by the Lessor during the continuance of an Event of Default, the Lessee shall deliver to the Lessor certificates of insurance evidencing that all insurance required by Section 11.1 to be maintained by the Lessee with respect to the Leased Property is in effect.

Lessee agrees that nothing in this Article XI shall prohibit the Lessor from maintaining its own insurance coverage, at its own expense, which coverage shall not reduce the obligations of the Lessee under this Article XI; provided, however, that no such insurance shall be maintained if its maintenance would prevent the Lessee from maintaining insurance as to the Improvements and the Site with insurers when required to do so herein.

 

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ARTICLE XII

ASSIGNMENT AND SUBLEASING

During the Lease Term, the Lessee may assign, sublease or transfer to any Person, at any time, in whole or in part, its right, title or interest in, to or under this Lease or any portion of the Leased Property without the prior written consent of the Lessor so long as (v) any such assignment, sublease or transfer would not subject the Lessor to a violation of laws or regulations applicable to the Lessor including those promulgated by OFAC, (w) no Event of Default shall have occurred and be continuing or, after giving effect to such assignment, sublease or transfer, would exist, (x) any such sublease is expressly subject and subordinate to this Lease, (y) Lessee remains liable for all obligations under this Lease after giving effect to any such assignment, sublease or transfer, and (z) Lessor retains all of its interests in and benefits of the Cash Collateral and receives prior certification thereof from the Lessee and such other evidence thereof as the Lessor may reasonably request. Unless and until Lessee has exercised the Early Termination Option or the Purchase Option, no sublease may have a term that extends beyond the Base Term Expiration Date. In all cases, Lessee will promptly provide Lessor copies of each such assignment, sublease or transfer.

No sublease will discharge or diminish any of the Lessee’s obligations hereunder and the Lessee shall remain directly and primarily liable under the Lease with respect to the Leased Property and the Operative Documents to which it is a party. Each sublease permitted hereby shall be made and shall expressly provide in writing that it is subject and subordinate to this Lease and the rights of the Lessor hereunder, shall expressly provide for the surrender of the Leased Property by the sublessee at the election of the Lessor after an Event of Default, shall provide that such provisions may be directly enforced by the Lessor and shall provide that such sublessee expressly agrees to comply with the use restrictions set forth in Article X hereof.

Notwithstanding the first paragraph of this Article XII, Lessee may not assign or transfer its rights and obligations under this Lease and the other Operative Documents unless (a) on the effective date of any such assignment and transfer, no Event of Default exists, (b) the parties enter into an assignment agreement in form and substance reasonably satisfactory to the Lessor, (c) all filings of or in respect of any such assignment and transfer necessary to protect the rights of the Lessor in the Leased Property and the other Operative Documents are made in a timely fashion, (d) without limiting any provisions of this Article XII, any such assignment and transfer shall include an appropriate provision for the operation, maintenance and insurance of the Leased Property in accordance with the terms hereof, (e) the Lessor shall have received opinions of counsel with respect thereto and such other matters as the Lessor may reasonably request, (f) such assignment and transfer will not result in a Material Adverse Effect, (g) such assignment and transfer will not result in the imposition of any unindemnified Taxes, (h) the Lessor shall have received such other documents and instruments and the Lessee shall take such further acts as the Lessor may reasonably request to evidence and facilitate such assignment and transfer, provided that no such document or instrument shall increase Lessee’s obligations or diminish Lessee’s rights under the Operative Documents or otherwise, and (i) such assignment and transfer will not, with respect to the Lessor, violate the use restrictions set forth in Article X hereof or Applicable Laws and provided, further that, Lessee shall provide to the Lessor not less than thirty (30) days’ prior written notice of such assignment or transfer, such notice to identify

 

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the assignee or transferee. No such assignment and transfer will diminish or discharge any of the Lessee’s obligations under this Lease or the other Operative Documents.

ARTICLE XIII

LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE

SECTION 13.1. Event of Loss.

(a) Event of Loss During Base Term .

(i) Event of Taking . If an Event of Taking shall occur during the Base Term, the Lessee shall give the Lessor prompt written notice of such occurrence and the date thereof and the Lessee shall on the next succeeding Payment Date (the “ Next Date ”) after such Event of Taking shall have occurred or, if such Event of Taking shall have occurred within ten (10) Business Days preceding a Payment Date, then on the next succeeding Payment Date after such Next Date shall have occurred, terminate this Lease and, as compensation for such Event of Taking, pay to the Lessor on such Payment Date the Break Even Price.

(ii) Event of Loss . If an Event of Loss (other than an Event of Taking) shall occur during the Base Term, the Lessee shall give the Lessor prompt written notice of such occurrence and the date thereof which notice shall contain an election by the Lessee to either (A) purchase the Leased Property from the Lessor on the Next Date after such Event of Loss shall have occurred or, if such Event of Loss shall have occurred within ten (10) Business Days preceding a Payment Date, then on the next succeeding Payment Date after such Next Date shall have occurred, at a purchase price equal to the Break Even Price of the Leased Property (and if the Lessee makes such election the Break Even Price shall become due and payable and the Lessee shall purchase the Leased Property on such Payment Date), or (B) provided no Material Default or Event of Default shall have occurred and be continuing and rebuilding of the Improvements is capable of being completed prior to the end of the Lease Term (as certified in writing by a construction consultant appointed by Lessee and acceptable to the Lessor), rebuild the Improvements and continue the Lease. If the Lessee elects to rebuild the Improvements, the Lessee shall rebuild the Improvements to the condition required to be maintained pursuant to Section 9.1 and so as not to diminish (A) the utility of the Improvements as a corporate office complex including a corporate office building, and any uses ancillary thereto, (B) the then current Fair Market Value as determined by reference to the Appraisal, or (C) the Fair Market Value as determined by reference to the Appraisal as of the scheduled expiration date of the Lease Term.

(b) Purchase and Termination . Upon receipt in full by the Lessor of the Break Even Price pursuant to this Section 13.1, the Lease shall terminate and the obligations of the Lessee hereunder and under the other Operative Documents (other than any obligations expressed herein, or any other Operative Document as surviving termination of this Lease (including any obligations with respect to any existing Event of Default)) shall terminate as of the date of such receipt. Upon such receipt in full of the Break Even Price, the Leased Property and all rights to

 

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any remaining awards or proceeds shall be transferred to the Lessee or its designee in accordance with Section 23.11 hereof.

(c) Application of Payments Relating to an Event of Loss . Subject to Section 13.4, all condemnation proceeds and property insurance proceeds received at any time by Lessee during the Lease Term from any Authority or other Person with respect to any Event of Loss shall be promptly remitted to the Lessor (up to, but not exceeding, the Break Even Price) and, upon the payment in full of the Break Even Price, the Lessor shall assign to the Lessee all rights to any condemnation proceeds and property insurance proceeds and any such condemnation proceeds and property insurance proceeds remaining thereafter or thereafter received shall be paid by the Lessor (whichever shall receive same) over to Lessee, or as Lessee may direct, and any receipt of such proceeds shall satisfy the Lessee’s obligations under Section 13.1.

SECTION 13.2. Condemnation.

In case of a Condemnation for temporary use of all or a portion of the Leased Property or a Condemnation of a portion of the Leased Property, in each case which is not an Event of Taking, this Lease shall remain in full force and effect, without any abatement or reduction of Rent, and the proceeds and awards received from any Authority relating to such Condemnation shall, so long as no Material Default or Event of Default shall have occurred and be continuing, be paid by the Lessor to the Lessee and, to the extent applicable, shall be used by the Lessee to repair and restore the affected Leased Property to the condition required by Section 9.1. Notwithstanding anything herein to the contrary, any portion of such proceeds that is awarded with respect to the time period after the expiration or termination of the Lease Term (unless the Lessee shall have exercised an option to purchase the Leased Property and consummated such purchase) shall be paid to the Lessor; provided, that if the Lessee has paid the Break Even Price to the Lessor, such proceeds (or the portion of such proceeds in excess of portion thereof applied to the Break Even Price) shall be paid by the Lessor over to the Lessee.

SECTION 13.3. Casualty.

Upon any Casualty during the Base Term with respect to the Leased Property which is not an Event of Loss, this Lease shall remain in full force and effect, without any abatement or reduction of Rent and, if the cost of repair would exceed $2,000,000 (as reasonably determined by Lessee), the Lessee shall give to the Lessor written notice of such Casualty. As soon as practicable after such Casualty with respect to the Leased Property has occurred, the Lessee shall repair and rebuild the affected portions of the Leased Property suffering such Casualty (or cause such affected portions to be repaired and rebuilt) to the condition required to be maintained by Section 9.1 and so that the Fair Market Value, utility, useful life and functional capability of such item as restored is at least equivalent to the Fair Market Value, utility and useful life and functional capability of such item as in effect immediately prior to the occurrence of such Casualty (assuming the Improvements were being maintained in accordance with Section 9.1); provided, that at all times during such repair or rebuilding the Lessee shall maintain the Improvements in accordance with Section 9.1.

 

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SECTION 13.4. Proceeds.

If a Material Default or an Event of Default shall have occurred and be continuing, any proceeds received from any Authority or any insurance proceeds, in either case with respect to any Casualty or an Event of Loss, shall be held by the Lessor. So long as no Material Default or Event of Default shall have occurred and be continuing, any such proceeds received from any Authority or any insurance proceeds with respect to any Casualty, or if the Lessee has elected to rebuild the Improvements upon an Event of Loss pursuant to Section 13.1 hereof, with respect to such Event of Loss, shall be paid by the Lessor or by the insurers over to the Lessee up to $2,000,000. Any such proceeds received from any Authority or any insurance proceeds with respect to any Casualty or, if the Lessee has elected to rebuild the Improvements, with respect to an Event of Loss, in each case, not paid over to the Lessee in accordance with the previous sentence, shall be held by the Lessor and made available to the Lessee to pay costs actually incurred by the Lessee to restore the Leased Property as required herein in accordance with Section 13.1, as applicable, and any proceeds received from any Authority or any insurance proceeds remaining after such restoration shall be paid by the Lessor over to the Lessee.

SECTION 13.5. Negotiations.

In the event any part of the Leased Property becomes subject to condemnation or requisition proceedings during the Lease Term, the Lessee shall give notice thereof to the Lessor promptly after the Lessee has knowledge thereof and, to the extent permitted by any Applicable Laws, the Lessee shall control the negotiations with the relevant Authority unless an Event of Default has occurred and is continuing, in which case the Lessor shall be entitled to control such negotiations in consultation with the Lessee; provided, that in any event the Lessor may participate at the Lessor’s expense (or if an Event of Default is continuing or such negotiations occur during the Construction Period, at the Lessee’s expense) in such negotiations. Lessee shall give to the Lessor such information, and copies of such documents, which relate to such proceedings, or which relate to the settlement of amounts due under insurance policies required by Section 11.1, and are in the possession of the Lessee, as are reasonably requested by the Lessor. If the proceedings relate to an Event of Taking, the Lessee shall act diligently in connection therewith. Nothing contained in this Section 13.5 shall diminish the Lessor’s rights with respect to condemnation proceeds and property insurance proceeds under Section 13.1.

SECTION 13.6. No Rent Abatement.

Rent shall not abate hereunder by reason of any Casualty, any Event of Loss, any Event of Taking or any Condemnation of any portion of the Leased Property, and the Lessee shall continue to perform and fulfill all of the Lessee’s obligations, covenants and agreements hereunder notwithstanding such Casualty, Event of Loss, Event of Taking or Condemnation until the Lease Expiration Date.

ARTICLE XIV

CERTAIN DUTIES AND RESPONSIBILITIES

Lessor undertakes to perform such duties and only such duties as are specifically set forth herein and in the other Operative Documents, and no implied covenants or obligations shall be

 

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read into this Lease against the Lessor, and the Lessor agrees that it shall not, nor shall it have a duty to, manage, control, use, sell, maintain, insure, register, lease, operate, modify, dispose of or otherwise deal with the Improvements or the Site in any manner whatsoever, except as required by the terms of the Operative Documents and as otherwise provided herein.

ARTICLE XV

INSPECTION

Upon seven (7) Business Days prior notice to the Lessee, the Lessor or its authorized representatives (the “ Inspecting Parties ”) at any time during the Lease Term may inspect (a) the Improvements and the Site and (b) the books and records of the Lessee and its Affiliates relating to the Improvements and the Site and make copies and abstracts therefrom. All such inspections shall be (i) during the Lessee’s normal business hours, (ii) subject to the Lessee’s reasonable confidentiality requirements, and (iii) at the expense and risk of the Inspecting Parties, except that, if a Default or Event of Default has occurred and is continuing, the Lessee shall reimburse the Inspecting Parties for the reasonable out-of-pocket costs and expenses of such inspections and, except for the Inspecting Party’s gross negligence or willful misconduct, such inspection shall be at the Lessee’s risk. No inspection shall unreasonably interfere with the Lessee’s operations. None of the Inspecting Parties shall have any duty to make any such inspection or inquiry. None of the Inspecting Parties shall incur any liability or obligation by reason of making any such inspection or inquiry unless and to the extent such Inspecting Party causes damage to the Improvements or the Site or any property of the Lessee or any other Person during the course of such inspection.

ARTICLE XVI

ENVIRONMENTAL MATTERS

SECTION 16.1. Environmental Matters.

At the Lessee’s sole cost and expense, the Lessee shall promptly and diligently and in accordance with Applicable Laws commence and complete any response, clean up, remedial or other action necessary to remove, clean up or remediate any Environmental Violation with respect to the Improvements or the Site to the extent required of the Lessee or the Lessor in order to comply with Applicable Laws (a “ Remediation ”). Lessee shall, upon completion of remedial action by the Lessee (i) with respect to any Material Environmental Violation described in clause (ii) of the definition thereof, cause to be prepared by an authorized representative of the Lessee a certificate describing in sufficient detail such Environmental Violation and the actions taken by the Lessee (or its agents) in response to such Environmental Violation and a statement of such authorized representative of the Lessee that such Environmental Violation has been remedied in compliance in all material respects with Applicable Laws and (ii) with respect to any other Material Environmental Violation, cause to be prepared by the Environmental Expert a report describing in sufficient detail such Environmental Violation and the actions taken by the Lessee (or its agents) in response to such Environmental Violation, and a statement by the Environmental Expert that the Environmental Violation has been remedied in compliance in all material respects with Applicable Laws. Each Environmental Violation shall be remedied prior to the Lease Expiration Date unless the Leased Property has been purchased by the Lessee in

 

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accordance with Section 20.1, 20.2 or 22.1(a), provided that if remedying such Environmental Violation requires continued operation of a remediation system or monitoring of testing wells or similar ongoing testing, the Lessee shall have access at reasonable times and shall remain obligated to perform such actions unless the Lessor, in its sole discretion, notifies Lessee to terminate such actions. Nothing in this Article XVI shall reduce or limit the Lessee’s obligations under Article VII of the Participation Agreement (which obligations shall include any Claims arising from such actions).

SECTION 16.2. Notice of Environmental Matters.

Promptly upon the Lessee’s obtaining knowledge of the existence of any Material Environmental Violation with respect to the Improvements or the Site, the Lessee shall notify the Lessor in writing of such Material Environmental Violation. Promptly, but in any event within thirty (30) days from the date a Responsible Officer of the Lessee has actual knowledge thereof, the Lessee shall provide to Lessor written notice of any pending or, to the Lessee’s knowledge, threatened (in writing) claim, action or proceeding involving any Material Environmental Violation with respect to the Improvements or the Site. All such notices shall describe in reasonable detail the nature of the claim, action or proceeding and the Lessee’s proposed response thereto. In addition, the Lessee shall provide to the Lessor, within thirty (30) days of receipt, copies of all material written communications with any Authority relating to any Material Environmental Violation. Lessee shall also promptly provide such detailed reports of any Material Environmental Violation as may reasonably be requested by the Lessor. For purposes hereof, “ Material Environmental Violation ” shall mean any Environmental Violation (i) which imposes or, in the good faith judgment of the Lessee or the Lessor, could reasonably be expected to impose criminal liability on the Lessor, or (ii) the cost of which to remediate is or could reasonably be expected to be in excess of $1,000,000.

ARTICLE XVII

EVENTS OF DEFAULT

The occurrence of any one or more of the following events, whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body, shall constitute an “ Event of Default ”:

(a) the Lessee shall fail to make any payment of Basic Rent when due and such failure shall continue for a period of three (3) Business Days after notice thereof, or the Lessee shall fail to make any payment of the Break Even Price, Lease Balance or other amounts due and payable under Article XIII, Article XX, Section 21.1(a) or Article XXII when due;

(b) the Lessee shall fail to make payment of any Supplemental Rent (other than any Supplemental Rent described in clause (a) above) when due and such failure shall continue for a period of ten (10) Business Days after notice thereof;

(c) the Lessee shall fail to maintain insurance as required by Article XI of this Lease;

 

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(d) the Lessee shall fail to perform or observe any of the terms, covenants, conditions and agreements set forth in Articles XXI and XXII of this Lease other than the failure to give notice of an end of term option pursuant to Section 21.1 hereof;

(e) any representation, warranty, certification or statement made or deemed to be made by the Lessee under this Lease, any other Operative Document (except as to any Other Lease Document) or in any certificate, financial statement or other document delivered pursuant hereto or thereto, shall at any time prove to have been incorrect in any material respect when made or deemed made and Lessee shall fail to cure the underlying facts causing such representation, warranty, certification or statement to be incorrect in all material respects for a period of ten (10) Business Days after the earlier of Actual Knowledge or notice thereof;

(f) the Lessee shall default in the performance or observance of any term, covenant, condition or agreement contained in this Lease (other than as specifically provided for otherwise in this Article XVII) or any other Operative Document (except as to any Other Lease Document) and such default shall continue for a period of thirty (30) days after the earlier of Actual Knowledge thereof or written notice thereof has been given to the Lessee; provided, however, that if such failure is capable of cure but cannot be cured by payment of money or cannot be cured by diligent efforts within such thirty (30) day period but such diligent efforts shall be properly commenced within such thirty (30) day period and the Lessee is diligently pursuing, and shall continue to pursue diligently remedy of such failure, such cure period shall be extended for an additional period of time in excess of such cure period as may be necessary to cure, not to extend beyond the earlier to occur of (i) the Lease Expiration Date or (ii) one hundred and twenty (120) days after the earlier of Actual Knowledge thereof or written notice thereof having been given to the Lessee;

(g) (i) Lessee or any of its Subsidiaries shall default beyond any applicable period of grace in any payment of principal of or interest on any indebtedness for borrowed money on which Lessee or any of its subsidiaries is liable in an aggregate principal amount then outstanding of $50,000,000 or more or (ii) an event of default (other than a failure to pay principal or interest) as defined in any mortgage, indenture, agreement or instrument under which there may be issued, or by which there may be secured or evidenced, any such indebtedness shall happen and shall result in such indebtedness becoming or being declared due and payable prior to the date on which it could otherwise become due and payable;

(h) the Lessee or any material Subsidiary shall file a voluntary petition of insolvency, bankruptcy or a voluntary petition or an answer seeking reorganization in a proceeding under any bankruptcy, insolvency or other similar laws (as now or hereafter in effect) or an answer admitting the material allegations of a petition filed against the Lessee in any such proceeding; or the Lessee shall, by voluntary petition, answer or consent, seek relief under the provisions of Bankruptcy Code or any other now existing or future bankruptcy, insolvency or other similar law providing for reorganization, administration or winding-up or for an agreement, composition, extension or adjustment with their respective creditors, or shall adopt a resolution of liquidation, including but not limited to, any petition or notice filed by the Board of Directors of the Lessee or such Subsidiary or the Lessee shall admit in writing its inability or fail generally to pay its debts or the Lessee shall seek the appointment of a trustee in bankruptcy, administrator or a receiver for any kind of insolvency proceedings for itself or any substantial portion of its assets,

 

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or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall take any corporate action to authorize any of the foregoing;

(i) an involuntary case or other proceeding shall be commenced against the Lessee or any material Subsidiary seeking its bankruptcy, liquidation, reorganization, winding-up or other relief with respect to it or its debts under the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of sixty (60) consecutive days; or the Lessee or any material Subsidiary shall be declared bankrupt or any other order for relief shall be entered against the Lessee or any material Subsidiary under the U.S. Federal bankruptcy laws or any other relevant bankruptcy laws of any jurisdiction;

(j) a final judgment or order for the payment of money in excess of $125,000,000 (to the extent not covered by insurance) shall be rendered against the Lessee or any material Subsidiary and the Lessee or such Subsidiary shall not discharge the same or provide for its discharge in accordance with its terms, or procure a stay of execution thereof, within sixty (60) days after the date of entry thereof and, in the case of any such stay of execution, within said period of sixty (60) days (or such longer period during which execution of such judgment shall have been stayed) appeal therefrom and cause the execution thereof to be stayed during such appeal;

(k) a Change in Control shall occur;

(l) (i) Lessee or any ERISA Affiliate shall fail to pay within thirty (30) days of the due date thereof an amount or amounts aggregating in excess of $100,000,000 which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; (ii) notice of intent to terminate a Plan having unfunded benefit liabilities (within the meaning of Section 4001(a)(18) of ERISA) in excess of $100,000,000 (a “ Material Plan ”) shall be filed under Title IV of ERISA by Lessee or any ERISA Affiliate, any plan administrator or any combination of the foregoing; (iii) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan; (iv) the failure of Lessee or any ERISA Affiliate to make any required contribution to a Multiemployer Plan unless the failure is cured within thirty (30) days, (v) the withdrawal or partial withdrawal of Lessee or any ERISA Affiliate from any Multiemployer Plan, (vi) the receipt by Lessee or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from Lessee or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, “ insolvent ” (within the meaning of Section 4245 of ERISA) or in “ reorganization ” (within the meaning of Section 4241 of (ERISA) or (vii) the imposition of liability on Lessee or any ERISA Affiliate by reason of the application of Section 4212(c) of ERISA, in each case with respect to clauses (iv)-(vii), to the extent that such event, taken together with any other such events described in clauses (iv)-(vii), could reasonably be expected to result in Lessee incurring aggregate liability in excess of $100,000,000;

 

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(m) any Operative Document (except as to any Other Lease Document) or any assignment, security interest or Lien granted thereunder (except in accordance with its terms), in whole or in part, terminates, ceases to be a legal, valid and binding enforceable obligation of the Lessee or any of its Affiliates or the Lessee or any of its Affiliates, directly or indirectly, contests in any manner in any court the effectiveness, validity, binding nature or enforceability thereof; or any assignment, security interest or Lien securing the Lessee’s obligations under the Operative Documents, in whole or in material part, ceases to be perfected (except as the result of any affirmative act of the Lessor, failure by the Lessor to file a UCC continuation statement or by operation of law) with the same priority as was in effect on the Closing Date; or

(n) an Event of Default shall have occurred under and as defined in the Pledge Agreement (Fremont 1).

ARTICLE XVIII

ENFORCEMENT

SECTION 18.1. Remedies.

(a) During the continuation of an Event of Default and notwithstanding any Event of Loss or termination of the Lease pursuant to Article XIII, at the Lessor’s option and without limiting the Lessor in the exercise of any other right or remedy the Lessor may have on account of such Event of Default, and without any further demand or notice, the Lessor may to the fullest extent permitted under Applicable Laws cause the following to occur:

(i) By notice to the Lessee, the Lessor may terminate the Lessee’s right to possession of the Leased Property.

(ii) The Lessor may (i) demand that Lessee, and Lessee shall upon the written demand of the Lessor, return the Leased Property promptly to the Lessor in the condition required by Section 22.5 and the Lessor shall not be liable for the reimbursement of Lessee for any costs and expenses incurred by Lessee in connection therewith, and (ii) without prejudice to any other remedy which the Lessor may have for possession of the Leased Property, and to the extent and in the manner permitted by Applicable Laws, enter upon the Site and Improvements and take immediate possession of (to the exclusion of Lessee) the Leased Property or any part thereof and expel or remove Lessee, by summary proceedings or otherwise, all without liability to Lessee for or by reason of such entry or taking of possession (provided that, the Lessor shall remain liable for actual damages caused by its bad faith, gross negligence or willful misconduct), whether for the restoration of damage to property caused by such taking of possession or otherwise and, in addition to the Lessor’s other damages, Lessee shall be responsible for all actual and reasonable costs and expenses incurred by the Lessor in connection with any reletting, including brokers’ fees and all costs of any alterations or repairs made by the Lessor;

(iii) The Lessor may terminate this Lease with respect to all or any part of the Leased Property and/or declare the aggregate outstanding Lease Balance to be immediately due and payable, and the Lessor shall be entitled to (x) recover from the Lessee the following amounts and (y) take the following actions:

 

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(1) the Lessee shall pay all accrued and unpaid Rent hereunder (including Basic Rent and Supplemental Rent) for the period commencing on the Closing Date through the Final Rent Payment Date with respect to the Leased Property;

(2) the Lessor may elect either of the following with respect to any or all of the Leased Property:

(A) the Lessor may demand, by written notice to the Lessee specifying a payment date (the “ Final Rent Payment Date ”) on a Business Day no earlier than thirty (30) days after the date of such notice but, in any event, no later than the date the Leased Property or part thereof is sold pursuant to clause (B)(2) hereof, that the Lessee purchase the Leased Property, and the Lessee shall pay to the Lessor, on the Final Rent Payment Date (in lieu of Basic Rent due after the Final Rent Payment Date), an amount equal to the sum of (x) the Lease Balance computed for the period commencing on the Closing Date to and including the Final Rent Payment Date, plus (y) all accrued and unpaid Rent due and unpaid for the period commencing on the Closing Date to and including the Final Rent Payment Date (less any amounts paid by the Lessee under clause (x) above), and upon payment of such amount, and the amount of all other sums due and payable by the Lessee under this Lease and the other Operative Documents (and interest at the Overdue Rate on the amounts payable under this clause (B)(1) from the Final Rent Payment Date to the date of actual payment), the Leased Property shall be transferred to the Lessee or its designee pursuant to Section 23.11; or

(B) the Lessor may sell its interest in the Leased Property and/or pursue any and all remedies under the Security Documents, and, in any event, the Lessee shall pay to the Lessor an amount equal to the excess, if any, of (x) all amounts described in clause (B)(1) above due the Lessor over (y) the net Sale Proceeds received by the Lessor from the foregoing sale (provided, that in calculating such net Sale Proceeds, all fees, costs, expenses and Taxes to the extent not indemnified and not paid by the Lessee pursuant to Section 7.2 of the Participation Agreement incurred by the Lessor in connection with such sale, including legal fees, shall be deducted from such Sale Proceeds);

(3) Any other amount necessary to compensate the Lessor for all the damages caused by or resulting from the Lessee’s failure to perform the Lessee’s obligation under this Lease, including the costs and expenses (including reasonable attorneys’ fees, advertising costs and brokers’ commissions) of recovering possession of the Leased Property, removing Persons or property from the Leased Property, placing the Leased Property in good order, condition, and repair, preparing and altering the Leased Property for reletting, and all other costs and expenses of reletting; and

 

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(4) Such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by Applicable Laws.

(iv) The Lessor may exercise any and all rights and remedies under the Security Documents including with respect to the Cash Collateral subject to the Pledge Agreement and accounts under the Blocked Account Agreement.

(v) If an Event of Default under this Lease is continuing, this Lease shall continue in effect for so long as the Lessor does not terminate this Lease, and the Lessor may enforce all of the Lessor’s rights and remedies under this Lease, including the right to recover the Rent hereunder (including Basic Rent (when applicable) and Supplemental Rent) as it becomes due under this Lease. Lessee’s right to possession shall not be deemed to have been terminated by the Lessor except pursuant to clause (i) above. The following do not constitute a termination of this Lease:

(1) Acts of maintenance or preservation or efforts to relet the Leased Property; and

(2) Withholding of consent to assignment or subletting, or terminating a subletting or assignment by the Lessee.

(vi) In the event that the Lessor elects to continue this Lease in full force and effect following the termination of the Lessee’s right of possession of the Improvements, the Lessor, to the maximum extent permitted by Applicable Laws, may enforce all its rights and remedies under this Lease including the right to recover Rent hereunder as it becomes due. During the continuance of an Event of Default or following the termination of the Lessee’s right to possession of the Improvements, the Lessor may enter the Improvements and the Site in accordance with Applicable Laws without terminating this Lease and sublet all or any part of the Leased Property for the Lessee’s account to any Person, for such term (which may be a period beyond the remaining Lease Term), at such rents and on such other terms and conditions as are commercially reasonable. In the event of any such subletting, rents received by the Lessor from such subletting shall be applied (a) first, to the payment of the reasonable costs incurred by the Lessor in maintaining, preserving, altering and preparing the Leased Property for subletting and other reasonable costs of subletting, including reasonable brokers’ commissions and attorneys’ fees; (b) second, to the payment of Rent hereunder then due and payable; (c) third, to the payment of future Rent hereunder as the same may become due and payable hereunder; (d) fourth, to the payment of all other obligations of the Lessee hereunder and under the other Operative Documents (including the Lease Balance), and (e) fifth, the balance, if any, shall be paid to the Lessee upon (but not before) expiration of the Lease Term. If the rents received by the Lessor from such subletting, after application as provided above, are insufficient in any period to pay the Rent due and payable hereunder for such period, the Lessee shall pay such deficiency to the Lessor upon demand. Notwithstanding any such subletting for the Lessee’s account without termination, the Lessor may at any time thereafter, by written notice to the Lessee, elect to terminate this Lease.

 

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(vii) The Lessor may exercise any other right or remedy that may be available to it under Applicable Laws or in equity, or proceed by appropriate court action (legal or equitable) to enforce the terms or to recover damages for the breach hereof, including those arising from a breach by the Lessee of its obligations under Section 20.2 hereof. Separate suits may be brought to collect any such damages for any Rent installment period(s), and such suits shall not in any manner prejudice the Lessor’s right to collect any such damages for any subsequent Rent installment period(s), or the Lessor may defer any such suit until after the expiration of the Lease Term, in which event such suit shall be deemed not to have accrued until the expiration of the Lease Term.

(viii) The Lessor may retain and apply against the Lessor’s damages all sums which the Lessor would, absent such Event of Default, be required to pay to, or turn over to, the Lessee pursuant to the terms of this Lease.

The Lessee acknowledges and agrees that upon the declaration of an Event of Default the amount due and owing by the Lessee to the Lessor hereunder shall be the Lease Balance and that to the maximum extent permitted by Applicable Laws, the Lessee waives any right to contest the Lease Balance as the liquidated sum or agreed upon sum due and owing.

(b) In the event that an Event of Default is declared (or deemed declared) solely and exclusively on the basis of one or more 97-1 Events of Default,

(x) a claim or demand by the Lessor for payment by Lessee of or in respect of the Lease Balance under Section 18.1(a) hereof shall be limited as follows:

(i) any obligation of the Lessee to pay the Lease Balance and amounts due under clauses (C) and (D) of Section 18.1(a)(iii) shall be reduced to be an obligation to pay an amount equal to the Recourse Deficiency Amount; provided, however, that if Lessee shall not pay the full Lease Balance and such other amounts, the Lessor shall not have any obligation to transfer the Leased Property to the Lessee or its designee as provided in clause (B)(1) of Section 18.1(a)(iii); and

(ii) any obligation of the Lessee to pay any shortfall determined by reference to the Lease Balance as provided in clauses (B)(2) of Section 18.1(a)(iii), and amounts due under clauses (C) and (D) of Section 18.1(a)(iii) shall be revised to be an obligation to pay the lesser of (i) such shortfall plus such other amounts and (ii) the Recourse Deficiency Amount; and

the references to “ Lease Balance ” in the last paragraph of Section 18.1(a) and in Section 18.2 shall be deemed references to the amount described in clause (i) or clause (ii) above, as applicable, provided, however, that the foregoing limitation shall not limit or affect any other rights of the Lessor as Lessor shall have all rights and remedies available under the Operative Documents or available at law, equity or otherwise including the right to demand the payment of Supplemental Rent (other than the Lease Balance) and the right to require surrender and return or sale to a third party of the Leased Property all as set forth herein; and

 

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(y) if Section 18.1(a)(vi) is applicable, the reference to Lease Balance in clause (d) thereof shall be a reference to the Recourse Deficiency Amount so long as the Lease has not been terminated.

SECTION 18.2. Proceeds of Sale; Deficiency.

(a) All payments received and amounts held or realized by the Lessor at any time when an Event of Default shall be continuing and after the Lease Balance shall have been accelerated pursuant to this Article XVIII as well as all payments or amounts then held or thereafter received by the Lessor (except for rents received by the Lessor from subletting pursuant to Section 18.1(a)(vi), which shall be distributed as set forth therein) and the proceeds of sale pursuant to Section 18.1(a)(iii)(B)(2) shall be distributed forthwith upon receipt by the Lessor as follows:

first , to the Lessor, so much of such amount as is required to reimburse the Lessor for any fees, costs, expenses, Taxes or other loss incurred by it (to the extent not previously reimbursed);

second , to the Lessor, so much of such amounts as are required to pay all expenses or fees incurred by the Lessor in connection therewith including Break Funding Amounts, if any;

third , to the Lessor, so much of such amount as is required to pay all accrued Yield thereon;

fourth , to the Lessor, so much of such amounts as are required to pay in full the outstanding amount of the Lease Balance;

fifth , to the Lessor, so much of such amounts as are required to pay all outstanding obligations of Lessee pursuant to the Operative Documents including all indemnities which are due and payable; and

sixth , to Lessee, the balance of such amount, if any.

SECTION 18.3. Waiver of Certain Rights.

To the maximum extent permitted by Applicable Laws, (a) the Lessee hereby waives the benefit of any appraisement, valuation, stay, extension, reinstatement and redemption laws now or hereafter in force and all rights of marshalling in the event of any sale of the Leased Property or any interest therein and (b) if this Lease shall be terminated pursuant to this Article XVIII, the Lessee waives, to the fullest extent permitted by Applicable Laws, (i) any notice of re-entry or the institution of legal proceedings to obtain re-entry or possession, (ii) any right of redemption, re-entry or repossession, (iii) the benefit of any laws now or hereafter in force exempting property from liability for rent or for debt or limiting the Lessor with respect to the election of remedies, (iv) any other rights which might otherwise limit or modify any of the Lessor’s rights or remedies under this Article XVIII, and (v) any rights now or hereafter conferred under California Applicable Laws that may require the Lessor to sell, lease or otherwise use the Leased Property, or any part thereof in mitigation of the Lessor’s damages upon the occurrence of an

 

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Event of Default or that may otherwise limit or modify any of the Lessor’s rights or remedies under this Article XVIII.

SECTION 18.4. Remedies Cumulative; No Waiver; Consents.

To the extent permitted by, and subject to the mandatory requirements of, Applicable Laws, each and every right, power and remedy herein specifically given to the Lessor or otherwise in this Lease shall be cumulative and shall be in addition to every other right, power and remedy herein specifically given or now or hereafter existing at law, in equity or by statute, and each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised from time to time and as often and in such order as may be deemed expedient by the Lessor, and the exercise or the beginning of the exercise of any power or remedy shall not be construed to be a waiver of the right to exercise at the same time or thereafter any other right, power or remedy. No delay or omission by the Lessor in the exercise of any right, power or remedy or in the pursuit of any remedy shall impair any such right, power or remedy or be construed to be a waiver of any default on the part of the Lessee or be an acquiescence therein. Lessor’s consent to any request made by the Lessee shall not be deemed to constitute or preclude the necessity for obtaining the Lessor’s consent, in the future, to all similar requests. No express or implied waiver by the Lessor of any Event of Default shall in any way be, or be construed to be, a waiver of any future or subsequent Default or Event of Default.

ARTICLE XIX

RIGHT TO CURE

If any Event of Default other than those described in paragraphs (h) and (i) of Article XVII shall be continuing and in the Lessor’s reasonably exercised judgment the Lessee is not acting diligently and appropriately to cure such Event of Default, the Lessor may, but shall not be obligated to, on five (5) Business Days’ prior notice to the Lessee (except in the event of an emergency, in which case only one (1) Business Day’s prior notice shall be required), cure such Event of Default and the Lessor shall not thereby be deemed to have waived any default caused by such failure to cure, and the amount of such payment and the amount of the expenses of the Lessor (including reasonable attorneys’ fees and expenses) incurred in connection with such cure, together with interest thereon at the Overdue Rate, shall be deemed Supplemental Rent, payable by the Lessee to the Lessor upon demand.

ARTICLE XX

EARLY TERMINATION OPTION; OBLIGATION TO PURCHASE; MID-TERM REMARKETING OPTION

SECTION 20.1. Early Termination Option.

Without limitation of the Lessee’s purchase obligation pursuant to Section 20.2, the Lessee may, at its option, on any Business Day following the Base Term Commencement Date but prior to the Lessee’s election to exercise the Return Option, purchase all, but not less than all, of the Leased Property (the “ Early Termination Option ”) at a price equal to the Break Even Price - Special Land Value. In order to exercise its option to purchase the Leased Property pursuant to this Section 20.1, the Lessee shall give the Lessor not less than thirty (30) days’ prior

 

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written notice of such election which election, in each case, shall be irrevocable when made. Notwithstanding anything herein to the contrary, the Lessee shall not be permitted to exercise the Early Termination Option following the occurrence and during the continuance of an Event of Default unless it shall (i) elect the Early Termination Option on or before ten (10) Business Days following such Event of Default, and (ii) consummate the purchase of the Leased Property by Lessee (or its designee) before twenty (20) Business Days following such Event of Default. Upon receipt of the Break Even Price - Special Land Value, the Leased Property shall be transferred to the Lessee (or its designee) pursuant to Section 23.11.

SECTION 20.2. Required Purchase.

So long as the Lessor has not exercised any other remedy inconsistent therewith, the Lessee shall be obligated to purchase the Leased Property for the Break Even Price - Special Land Value automatically and without notice upon the occurrence of any Event of Default described in clauses (h) or (i) of Article XVII and upon receipt of the Break Even Price the Leased Property shall be transferred to the Lessee (or its designee) pursuant to Section 23.11.

SECTION 20.3. Mid-term Remarketing Option.

At any time during the Lease Term other than after the occurrence and during the continuance of an Event of Default, Lessee shall have the option (the “ Remarketing Option ”) to designate a third party purchaser and to cause the Lessor to sell the Leased Property to such purchaser on the date designated for the sale thereof by Lessee (the “ Remarketing Sale Date ”) provided, that the Lessor shall have received the Remarketing Sale Proceeds of such sale together with (in the case where such Remarketing Sale Proceeds do not equal or exceed the Break Even Price) additional cash amounts paid to the Lessor by the Lessee, as Supplemental Rent, in an amount equal to the excess of the Break Even Price over such Remarketing Sale Proceeds. If the Remarketing Sale Proceeds exceed the Break Even Price as of such Remarketing Sale Date, the Lessor shall pay over to the Lessee the portion of the Remarketing Sale Proceeds in excess thereof after satisfaction of all amounts due hereunder or under the other Operative Documents. Subject to, and concurrent with, the receipt by the Lessor of funds equal to or in excess of the Break Even Price, on the Remarketing Sale Date, the Lessor shall convey to the Lessee or its designee the Leased Property in accordance with Section 23.11. The Lessee shall be responsible for the payment of all fees and expenses of the Lessor (including reasonable attorneys’ fees and expenses) incurred in connection with any exercise or purported exercise of the Remarketing Option.

ARTICLE XXI

END OF TERM OPTIONS

SECTION 21.1. End of Term Options

At least one hundred and eighty (180) days prior to the Return Date, but not more than two hundred seventy (270) days, the Lessee shall, by delivery of an irrevocable written notice to the Lessor, exercise one of the following options:

 

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(a) Purchase for cash for the Break Even Price - Special Land Value all, but not less than all, of the Leased Property then subject to this Lease on the last day of the Lease Term (the “ Purchase Option ”) and if the Lessee shall have elected the Purchase Option, upon the payment to the Lessor of the Break Even Price, the Leased Property shall be transferred to the Lessee (or its designee) pursuant to Section 23.11; or

(b) Provided no Default or Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Event of Default with respect to which the Lessor has not yet commenced exercising remedies) shall have occurred and be continuing, return the Leased Property to the Lessor at the end of the scheduled expiration date of the Lease Term (the “ Return Option ”). The Return Option shall be conditioned upon and subject to the fulfillment by the Lessee of each of the terms and conditions set forth in Article XXII and, thereafter, the Lessee shall have no further obligations to pay Basic Rent or the remaining Lease Balance. Lessee shall not enter into any additional subleases or renew any subleases with respect to the Leased Property following the Lessee’s election of the Return Option. Following the Lessee’s election of the Return Option, the Lessee shall not remove any Alterations.

SECTION 21.2. Election of Options.

In the event Lessor shall not have received the foregoing notice from Lessee prior to the date that is one hundred and eighty (180) days prior to the last day of the Return Date, by delivery of written notice via nationally recognized overnight courier to the Lessee, Lessor may notify the Lessee of the expiration of the election notice period set forth in the preceding section. If, in any event, the Lessee fails to make a timely election under Section 21.1 hereof, the Lessee shall be deemed to have elected the Return Option. Lessee may not elect the Return Option if there exists on the date the election is made a Default, an Event of Default or an Event of Loss. In the event a Default or an Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) or an Event of Loss shall have occurred after the election by the Lessee, or deemed election by the Lessee, of the Return Option, then notwithstanding any such election or deemed election, Lessee shall be deemed to have elected the Purchase Option with respect to the Leased Property. In the event a Default or Event of Default that is solely and exclusively based on one or more 97-1 Events of Default shall have occurred after the election by Lessee of the Return Option, (i) Lessee may continue with its Return Option so long as the Lessor has not commenced exercising remedies with respect thereto, and (ii) Lessee shall not be permitted to continue with its Return Option and shall be subject to Section 18 hereof including the limitations set forth in Section 18.1(b) hereof, in the event the Lessor shall have commenced remedies with respect thereto.

ARTICLE XXII

RETURN OPTION

SECTION 22.1. Return Option Procedures.

(a) If the Lessee elects or is deemed to have elected the Return Option and the Lessor elects to require the Lessee to offer to sell the Leased Property, at the option of the Lessor, (x)

 

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the purchaser shall be reasonably entitled (whether on or before the Return Date or thereafter) to be granted a temporary easement or other right of access from the Lessee on the Leased Property to enable the purchaser to have access over paths and streets necessary to remarket the Leased Property (the “ Easement ”) (which obligation of the Lessee to grant such Easement hereunder shall survive the termination of this Lease), or (y) the Lessee shall use commercially reasonable efforts as non-exclusive agent for the Lessor to obtain the highest all cash purchase price for the Leased Property. In the event the Lessee receives any bid, the Lessee shall within five (5) Business Days after receipt thereof and, at least five (5) Business Days prior to the Return Date, certify to the Lessor in writing the amount and terms of such bid and the name and address of the party (who shall not be the Lessee or any Subsidiary of the Lessee or, unless the sum of (i) the Sale Proceeds pursuant to a proposed bid which the Lessee desires to accept plus (ii) the Recourse Deficiency Amount plus (iii) any amount payable pursuant to Section 7.5 of the Participation Agreement is not less than the Break Even Price, any Person with whom the Lessee has an understanding or arrangement regarding their future use, possession or ownership of the Leased Property or the Lessor’s other rights, title and interest in and to the Leased Property, but who may be the Lessor, any Affiliate thereof, or any Person contacted by the Lessor (other than any Person otherwise forbidden from being such purchaser pursuant to the foregoing parenthetical)) submitting such bid, and the Lessee and any sublessee shall confirm in writing both to the Lessor and to the bidder that it will vacate the Leased Property and take such reasonable steps as may be required to grant to the bidder the Easement on or before the Return Date.

(b) If the sum of (i) the Sales Proceeds pursuant to a proposed bid which the Lessee desires to accept plus (ii) the Recourse Deficiency Amount plus (iii) any amount payable pursuant to Section 7.5 of the Participation Agreement is not less than the Break Even Price, then the Lessee shall determine and accept the winning bid; otherwise, Lessor shall have the right, in its sole and absolute discretion to accept or reject any bid so presented by the Lessee. As non-exclusive selling agent, Lessee’s expenses and the out-of-pocket expenses incurred by the Lessor in connection with any such bidding and sale process pursuant to this Section 22.1 as well as all costs and expenses incurred by the Lessor or a buyer or potential buyer of the Leased Property to place the Leased Property in the condition required by Section 9.1, shall be deducted from the Sale Proceeds. On the Return Date, so long as no Event of Default or Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) shall have occurred and be continuing: (w) the Lessee shall transfer all of the Lessee’s right, title and interest in the Leased Property if any, that the Lessor does not yet hold pursuant to the terms of the Operative Documents to the bidder, if any, which shall have submitted the bid (if any) accepted pursuant to this Section 22.1(b), in the same manner and in the same condition and otherwise in accordance with all of the terms of this Lease, warranted free and clear of all Liens other than Permitted Liens described in clauses (a) and (b) of the definition thereof; (x) subject to the prior or current payment by the Lessee of all amounts due under clause (y) of this sentence, the Lessor shall comply with any conditions to transfer set forth in Section 22.2 and the transfer provisions of Section 22.1(b) in order to transfer its interests in the Leased Property for cash to such bidder; (y) the Lessee, as non-exclusive selling agent, shall simultaneously pay to the Lessor all of the amounts required pursuant to Section 22.3; and (z) after payment in full of all amounts owing to the Lessor hereunder and under the terms of the bid, this Lease shall terminate or, at Lessee’s option, shall be assigned by Lessor without recourse or warranty by Lessor to a

 

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designee concurrent with the payment of such designated amount. The Lessor shall not have any responsibility for procuring any purchaser; provided, however, that the Lessor and its designees may engage in activities to market and sell the Leased Property and may terminate Lessee as its non-exclusive selling agent upon one (1) Business Day’s notice. Any such activities reasonably undertaken by the Lessor pursuant to this Section 22.1(b) shall be at the Lessor’s sole cost and expense (which shall be deducted from the Sale Proceeds in accordance with the foregoing), shall not reduce the Lessee’s obligations, as non-exclusive selling agent, under this Section 22.1(b) or during the Extended Remarketing Period) to use commercially reasonable efforts, as non-exclusive selling agent, to sell the Leased Property in accordance with the requirements of this Section 22.1(b) and Section 22.2. If the Sale Proceeds exceed the Break Even Price as of the Return Date, the Lessee shall retain or be entitled to receive the portion of the Sale Proceeds in excess thereof. If the Sale Proceeds are less than the aggregate outstanding Break Even Price, the Lessee shall pay or shall cause to be paid to the Lessor, as Supplemental Rent, on the date of such sale (but not later than the Return Date), in addition to the Sale Proceeds, an additional amount as set forth in the last sentence of Section 22.3(a) hereof.

SECTION 22.2. Sale.

Lessee, as non-exclusive selling agent, shall, on the Return Date, at the Lessee’s own expense (without right of reimbursement therefor out of gross sale proceeds except as provided in the third sentence of Section 22.1(b) above), negotiate the terms of any applicable sale, such that the Leased Property transferred to the purchaser in accordance with Section 22.1 hereof is (i) free and clear of all Liens, other than Permitted Liens described in clauses (a) or (b) of the definition thereof and (ii) (A) in the condition required by the terms of this Lease, (B) capable of operating in accordance with the purposes set forth in the Appraisal, (C) without any lessees claiming relief or exemption from judicial execution, and (D) in compliance with all Applicable Laws. Lessee, as non-exclusive selling agent, shall obtain all necessary governmental consents and approvals and make all governmental filings required by the Lessee or the Lessor in connection with any sale and grant of rights. Lessee, as non-exclusive selling agent, shall cooperate with the purchaser of the Leased Property in order to facilitate the transfers of the use, ownership and operation of the Leased Property by such purchaser after the date of the sale or transfer, including providing all books, reports and records regarding the maintenance, repair and ownership of the Leased Property and granting or assigning all licenses necessary for the operation of the Leased Property and cooperating in seeking and obtaining all necessary Governmental Actions. Lessee shall also, on the Return Date, vacate and cause any sublessee to vacate the Leased Property. As a further condition to the Lessee’s rights hereunder, the Lessee shall pay the total cost for the completion of all Alterations commenced after the Base Term Commencement Date and prior to the Return Date, and, subject to the Lessee’s right to use applicable insurance proceeds as set forth in Article XIII hereof, for the repair and rebuilding of the affected portions of the Leased Property suffering a Casualty after the Base Term Commencement Date. Such Alterations and all such repairs and rebuilding shall be completed prior to the Return Date. Unless the Lessee shall have exercised or been deemed to have exercised its Purchase Option or the Leased Property is to be sold to an independent purchaser, prior to the Return Date, the Lessee shall furnish to the Lessor and the independent purchaser hereunder a reasonably current preliminary environmental survey for the Leased Property dated no earlier than forty-five (45) days prior to the Return Date, from an environmental consultant satisfactory in the reasonable discretion of Lessor certifying that there exists no environmental

 

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contamination with respect to the Leased Property which would adversely affect the marketability, fair market value or useful life, as determined by the Appraisal, of the Leased Property or have an adverse effect on the Lessor and addressed to Lessor in form and substance satisfactory in the reasonable discretion of Lessor. The obligations of the Lessee under this Section 22.2 shall survive the expiration or termination of this Lease. Unless the Lessee shall have exercised or been deemed to have exercised its Purchase Option or the Leased Property is to be sold to an independent purchaser, the Lessor shall be entitled to perform such investigation, including obtaining reports of engineers and other experts as to the condition and state of repair and maintenance of the Improvements and the Site required by this Section 22.2 and as to the compliance of the Leased Property with Applicable Laws, including Environmental Laws, as it deems appropriate. Lessee, at its sole cost and expense (without right of reimbursement therefor out of gross sale proceeds but, subject to the Lessee’s right to use applicable insurance and condemnation proceeds as set forth in Article XIII hereof), shall cause the repair or other remediation of any discrepancies between the actual condition of the Improvements and the Site and the condition required under this Lease, such repair or remediation to be completed not later than the Return Date.

SECTION 22.3. Application of Sale Proceeds and Recourse Payments.

(a) On the Return Date, in connection with the Lessee’s exercise of the Return Option, the Lessee shall pay to the Lessor all Rent then due together with all other amounts due and payable by the Lessee to the Lessor or any Indemnitee. The Lessee also shall cause to be paid to the Lessor, from the aggregate Sale Proceeds - Special Land Value (after application of gross sale proceeds to payment of any deed or transfer tax thereon not paid by the purchaser thereof and payment or reimbursement to the Lessee and/or the Lessor for any costs or expenses incurred by the Lessee and/or the Lessor in connection with the actions required under Sections 22.1 and 22.2, excluding any provision thereof which expressly specifies that the Lessee’s costs shall not be reimbursable out of gross sale proceeds), the aggregate outstanding Break Even Price - Special Land Value as of the Return Date (as determined after the payment of all Rent due on such date and application of all other payments hereunder by Lessee in accordance with Section 22.3(c) hereof). If the Sale Proceeds - Special Land Value exceed the Break Even Price - Special Land Value as of the Return Date, the Lessee shall retain or be entitled to receive the portion of the Sale Proceeds - Special Land Value in excess thereof. If the Sale Proceeds - Special Land Value are less than the aggregate outstanding Break Even Price - Special Land Value, the Lessee shall pay or shall cause to be paid to the Lessor, as Supplemental Rent, on the Return Date, in addition to the Sale Proceeds - Special Land Value, an additional amount equal to the lesser of (A) the sum of (x) the amount that the Break Even Price (Improvements) exceeds the Sale Proceeds (Improvements) and (y) the amount that the Break Even Price (Land) exceeds the Sale Proceeds (Land) or (B) provided no Default or Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) has occurred and is continuing, the Recourse Deficiency Amount.

(b) The obligation of the Lessee to pay the amounts determined pursuant to Sections 22.3(a) and 22.4 shall be recourse obligations of the Lessee, and such payments by the Lessee shall not limit any other obligation of the Lessee under the Operative Documents, including pursuant to Article VII of the Participation Agreement.

 

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(c) If on any date the Lessor shall receive any amounts that constitute payment of the Recourse Deficiency Amount and any Sale Proceeds following Lessee’s election to return or deemed election to have returned the Leased Property at the Return Date, the Lessor shall apply such amounts in the following order of priority:

first , to the Lessor, so much of such amount as is required to reimburse the Lessor for any fees, costs, expenses, Taxes or other loss incurred by it (to the extent not previously reimbursed);

second , to the Lessor, so much of such amounts as are required to pay all expenses or fees incurred by the Lessor in connection therewith including Break Funding Amounts, if any;

third , to the Lessor, so much of such amount as is required to pay all accrued Yield thereon;

fourth , to the Lessor, so much of such amounts as are required to pay in full the outstanding amount of the Lease Balance;

fifth , to the Lessor, so much of such amounts as are required to pay all outstanding obligations of Lessee pursuant to the Operative Documents including all indemnities due and payable; and

sixth , to Lessee, the balance of such amount, if any.

(d) If the Lessee elects or is deemed to have elected the Return Option with respect to the Leased Property, at the time of such election, the Lessee and the Lessor shall use the Valuation Procedure (as defined below) to determine the ratio, expressed as a percentage, of the Fair Market Value of the Site at the time of such election, divided by the Fair Market Value of the Leased Property at such time (such percentage, the “ Land Value Percentage ” for the Leased Property; the “ Improvements Value Percentage ” for the Leased Property shall be 100% minus the Land Value Percentage). If the Leased Property is sold on the Return Date in accordance with the terms of Section 22.2, for purposes of calculating the Break Even Price (Improvements) and the Break Even Price (Land) set forth in Section 22.4(a)(i), the Lease Balance shall be allocated between the Site and Improvements by multiplying the then outstanding Lease Balance (the original Lease Balance minus any Qualified Prepayments) times (A) the Improvements Value Percentage for the Break Even Price (Improvements) calculation and (B) the Land Value Percentage for the Break Even Price (Land) calculation. For determining the ratio described above or for determining the Fair Market Value of the Leased Property or any other amount which may, pursuant to any provision of any Operative Document, be determined by an appraisal procedure, the Lessor and the Lessee shall use the following procedure (the “ Valuation Procedure ”). The Lessor and the Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Valuation Procedure under the applicable section of this Lease and, if they cannot agree within ten (10) days, then the Lessor shall order a valuation to be issued by an independent, qualified appraiser or licensed broker with at least ten years of experience in the commercial real estate market or commercial mortgage loan market in and around Fremont, CA which shall promptly but within fifteen (15) days

 

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determine the Fair Market Value of the respective Leased Properties including an appraisal of the related Site and the Improvements. The fees and expenses of the appraiser appointed by the Lessor shall be paid by the Lessee.

SECTION 22.4. Failure to Sell Leased Property.

(a) If the Leased Property shall not have been sold on or prior to the Return Date, in accordance with and subject to the provisions of this Article XXII, then the Lessee and the Lessor hereby agree as follows:

(i) the Lessee shall pay or shall cause to be paid to the Lessor, as Supplemental Rent, on the Return Date, in addition to the Sale Proceeds, an amount equal to the Recourse Deficiency Amount plus all other Rent then due under this Lease and the other Operative Documents or, in the event a Default or Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) shall have occurred and be continuing on such date, the Break Even Price and, in the case where the Break Even Price is paid, the Lessor shall convey to the Lessee or its designee the Leased Property in accordance with Section 23.11; and

(ii) at the option of the Lessor, if the Lessee has not paid the Break Even Price as set forth in Section 22.4(a)(i) above, the Lessee shall be required to continue using commercially reasonable efforts as non-exclusive agent for the Lessor to sell the Leased Property in accordance with Sections 22.1 and 22.2 for the period (the “ Extended Remarketing Period ”) commencing on the Return Date, and ending on the earliest of (w) the date occurring twenty-fourth (24 th ) months following the Return Date, (x) the sale of the Leased Property in accordance with the provisions of Sections 22.1 and 22.2 or such earlier date as the Lessor has received payment in full of the Break Even Amount, (y) the delivery of a written notice from the Lessor to the Lessee at any time terminating this Lease, which notice shall indicate that such termination is being made pursuant to this Section 22.4(a)(ii) and the date such termination shall be effective, and (z) the delivery of a written notice from the Lessee to the Lessor pursuant to which the Lessee notifies the Lessor of its election to terminate the Extended Remarketing Period. The notice given by the Lessee pursuant to Section 22.4(a)(ii)(z) shall indicate that it is being made pursuant to Section 22.4(a)(ii)(z) and shall set forth the date of termination of the Extended Remarketing Period; provided, however, in no event shall such effective date occur prior to the twenty-fourth (24 th ) month following the Return Date. On the last day of the Extended Remarketing Period, if the Leased Property has not been sold during the Extended Remarketing Period in accordance with Section 22.2, the Lessee shall also make the payments required under Section 22.4(a), to the extent not already paid under such Section. Nothing in this Section 22.4(a)(ii) shall adversely affect any other rights the Lessor may have to terminate this Lease pursuant to any other Section of this Lease or the Lessor’s right to pursue any remedy hereunder as a result of an Event of Default arising as a result of the Lessee’s failure to comply with the requirements set forth herein including pursuant to Article XVII or the Lessee’s obligation to pay amounts arising under Article VII of the Participation Agreement.

 

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(b) Following the expiration of the Extended Remarketing Period (or, if not so extended by Lessor, following the Return Date) and the absence of any sale of the Leased Property, the Lessor and Lessee will use commercially reasonable efforts to agree upon the Fair Market Value of the Leased Property. If the Lessor and Lessee are unable to agree upon the Fair Market Value of the Leased Property, Lessor shall order a valuation of the Fair Market Value of the Leased Property. Promptly after receipt of such valuation which establishes the Fair Market Value of Leased Property, Lessor shall pay to Lessee an amount equal to the lesser of (A) the Recourse Deficiency Amount paid by the Lessee in accordance with the Section 22.4(a)(i) and (B) the amount by which the Fair Market Value of the Leased Property exceeds the remaining Break Even Price (Land) and Break Even Price (Improvements), as allocated using a Valuation Procedure, less any Force Majeure Losses (the lower of (A) and (B) being the “ Expiration True-Up ”).

(c) The Lessor may sell or lease the Leased Property and the Lessor’s other interest in and to the Leased Property to any third party at such reasonable times and for such amounts as the Lessor deems commercially reasonable and appropriate in order to maximize the Lessor’s opportunity to recover the Lease Balance. If the Lessee returns the Leased Property to the Lessor in accordance with this Section 22.4 and, following the expiration of the Extended Remarketing Period, the Lessor subsequently sells the Leased Property for cash Sale Proceeds, Sale Proceeds shall be applied by the Lessor in the following order of priority:

(i) first , to the Lessor, Sale Proceeds shall be applied to any fees, costs, expenses, Taxes or other loss incurred by it (to the extent not previously reimbursed);

(ii) second , to the Lessor, Sale Proceeds shall be applied to the Lease Balance until the Lease Balance (excluding Force Majeure Losses, if any) is paid in full ( provided that , all costs and expenses arising from or related to the Leased Property which accrue after the later of the Return Date and the date the Lessee ceases to occupy the Leased Property shall be excluded from the Lease Balance for purposes of this Section 22.4(c)(ii));

(iii) third , to the Lessee, Sale Proceeds shall be applied to the Recourse Deficiency Amount ( less the Expiration True-Up), if any, to the extent such amounts were paid by the Lessor to the Lessee in accordance with Section 22.4(b);

(iv) fourth , to the Lessor, Sale Proceeds shall be applied to Force Majeure Losses and, to the extent not previously paid to the Lessor pursuant to clause (i) or clause (ii) above, to any other amounts payable to the Lessor pursuant to any expense reimbursement or indemnification by the Lessee pursuant to the provisions of the Operative Documents;

(v) fifth , to the Lessor, Sale Proceeds shall be applied to any costs or expenses excluded from the Lease Balance as a result of the proviso in Section 22.4(c)(ii) above;

(vi) sixth , to the Lessor, Sale Proceeds shall be applied to all other amounts, if any, payable by the Lessee to the Lessor under the Operative Documents, to the extent not previously paid to the Lessor pursuant to clauses (i), (ii), (iv) or (v) above; and

 

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(vii) seventh , to the Lessee, the balance, if any, of any Sale Proceeds shall be distributed to, or as directed by, the Lessee.

(d) The Lessor’s appointment of the Lessee as the Lessor’s non-exclusive agent to use commercially reasonable efforts to obtain the highest all-cash price for the purchase of the Leased Property and the Lessor’s interest in the Leased Property shall not restrict the Lessor’s right to market or lease the Leased Property and the Lessor’s interest in the Leased Property or to retain one or more sales agents or brokers (with the costs and expenses thereof being paid out of the Sale Proceeds, as provided in Sections 22.1(a) and 22.3(a) hereof).

(e) the Lessor reserves all rights under this Lease and the other Operative Documents arising out of the Lessee’s breach of any provisions of this Lease (including this Article XXII), whether occurring prior to, on or after the Return Date, including the Lessee’s breach of any of its obligations under this Article XXII, including the right to sue the Lessee for damages.

(f) To the greatest extent permitted by Applicable Law, the Lessee hereby unconditionally and irrevocably waives, and releases the Lessor from, any right to require the Lessor at any time prior to the Return Date or the expiration of the Extended Remarketing Period, as applicable, to market the Leased Property and the Lessor’s other interest in and to the Leased Property at all or for any minimum purchase price or on any particular terms and conditions, the Lessee hereby agrees that if the Lessee shall elect or shall be deemed to have elected the Return Option, its ability to sell the Leased Property and the Lessor’s other interest in and to the Leased Property on or prior to the Return Date, and to cause any Person to submit a bid to the Lessor pursuant to Section 22.1 shall constitute full and complete protection of the Lessee’s interest hereunder.

(g) During the period following Lessee’s exercise of the Return Option, the obligation of Lessee to pay Rent with respect to the Leased Property (including the installment of Rent due on the Return Date) shall continue undiminished; provided that such amounts subsequent to the Return Date (assuming the Lessee has returned the property to the Lessor) shall accrue and be payable out of the Sale Proceeds of any sale in accordance with Section 22.4(c)(v).

SECTION 22.5. Surrender and Return.

(a) Upon the expiration or earlier termination of the Lease Term, and provided that Lessee, if so entitled, has not exercised its option to purchase the Leased Property, Lessee shall peaceably leave and surrender and return the Leased Property to Lessor in the same condition in which the Leased Property existed on the Closing Date and such subsequent date on which any Alterations that constitute part of the Improvements were constructed, except as completed, repaired, rebuilt, restored, altered or added to as required by or permitted by any provision of this Lease (ordinary wear and tear excepted). Lessee shall remove from the Leased Property on or prior to such expiration or earlier termination all property situated thereon which is not the property of Lessor and the Leased Property shall be broom clean and Lessee shall repair any damage caused by such removal. Property not so removed shall become the property of Lessor and Lessor may cause such property to be removed from the Leased Property and disposed of,

 

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and Lessee shall pay (without right of reimbursement out of gross sale proceeds) the reasonable cost of any such removal and disposition and of repairing any damage caused by such removal.

(b) Except for surrender upon the expiration or earlier termination of the Lease Term hereof, no surrender to Lessor of this Lease or of the Leased Property shall be valid or effective unless agreed to and accepted in writing by Lessor.

(c) Without limiting the generality of the foregoing, upon the surrender and return of the Leased Property to Lessor pursuant to this Section 22.5, the Leased Property shall be (w) capable of being immediately utilized by a third-party purchaser or third-party lessee without further inspection, repair, replacement, alterations or improvements, licenses, permits, or approvals, except for any of the foregoing required solely by virtue of the change in ownership (other than to Lessor), use or occupancy of the Leased Property, (x) in compliance with all Applicable Laws including any of the foregoing required by virtue of a change in ownership, use or occupancy of the Leased Property other than to or by Lessee, (y) subject to any Shared Use Agreement, Appurtenant Rights and Restrictions or other cross easement agreement as may be necessary to comply with Applicable Laws, to make any such property marketable and to increase the aggregate value of the Leased Property and the other Sites, and (z) free and clear of any Lien. Until the Leased Property has been surrendered and returned to Lessor in accordance with the provisions of this Section 22.5, Lessee shall continue to pay Lessor all Rent due hereunder.

(d) Lessee acknowledges and agrees that a breach of any of the provisions of this Section 22.5 may result in damages to Lessor that are difficult or impossible to ascertain and that may not be compensable at law. Accordingly, upon application to any court of equity having jurisdiction over the Leased Property or the Lessee, Lessor shall be entitled to a decree against Lessee requiring specific performance of the covenants of Lessee set forth in this Section 22.5.

(e) Upon the request of the Lessor, Lessee shall continue to maintain its insurance policies for the Leased Property, to the extent permitted by such policies, provided that Lessor pays or reimburses Lessee for the pro rata cost thereof.

ARTICLE XXIII

MISCELLANEOUS

SECTION 23.1. Binding Effect; Successors and Assigns; Survival.

The terms and provisions of this Lease, and the respective rights and obligations hereunder of the Lessor and the Lessee shall be binding upon them and their respective successors, legal representatives and assigns (including, in the case of the Lessor, any Person to whom the Lessor may transfer the Leased Property or any interest therein in accordance with the provisions of the Operative Documents), and inure to their benefit and the benefit of their respective permitted successors, legal representatives and assigns (including, in the case of the Lessor, any Person to whom the Lessor may transfer the Leased Property or any interest therein in accordance with the provisions of the Operative Documents).

 

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SECTION 23.2. Severability.

Any provision of this Lease that shall be prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction, and the Lessee shall remain liable to perform its obligations hereunder except to the extent of such unenforceability. To the extent permitted by Applicable Laws, the Lessee hereby waives any provision of law that renders any provision hereof prohibited or unenforceable in any respect.

SECTION 23.3. Notices.

Unless otherwise specified herein, all notices, requests, demands or other communications to or upon the respective parties hereto shall be in writing and shall be delivered and shall be deemed to have been given in accordance with Section 8.3 of the Participation Agreement.

SECTION 23.4. Amendment; Complete Agreements.

Neither this Lease or any other Operative Document nor any terms hereof or thereof may be amended, supplemented or modified except in accordance with the provisions of the Participation Agreement. This Lease, together with the other Operative Documents, is intended by the parties as a final expression of their agreement and as a complete and exclusive statement of the terms thereof, all negotiations, considerations and representations between the parties having been incorporated herein and therein. No course of prior dealings between the parties or their officers, employees, agents or Affiliates shall be relevant or admissible to supplement, explain, or vary any of the terms of this Lease or any other Operative Document. Acceptance of, or acquiescence in, a course of performance rendered under this or any prior agreement between the parties or their Affiliates shall not be relevant or admissible to determine the meaning of any of the terms of this Lease or any other Operative Document. No representations, undertakings, or agreements have been made or relied upon in the making of this Lease other than those specifically set forth in the Operative Documents.

SECTION 23.5. Headings.

The Table of Contents and headings of the various Articles and Sections of this Lease are for convenience of reference only and shall not modify, define or limit any of the terms or provisions hereof.

SECTION 23.6. Original Executed Counterpart.

The single executed original of this Lease marked as Counterpart No. 1 shall be the “original executed counterpart” of this Lease. To the extent that this Lease constitutes chattel paper, as such term is defined in the Uniform Commercial Code as in effect in any applicable jurisdiction, no security interest in this Lease may be created through the transfer or possession of any counterpart other than the “original executed counterpart.”

 

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SECTION 23.7. Governing Law.

This Lease has been delivered in, and shall in all respects be governed by and construed in accordance with the laws of, the State of New York, without regard to conflicts of laws principles (except Section 5-1401 of the New York General Obligations Law), including all matters of construction, validity and performance, except as to matters relating to the perfection of the security interests hereunder and the exercise of rights and remedies with respect thereto, which shall be governed by and construed in accordance with the laws of the State of California.

SECTION 23.8. No Joint Venture.

Any intention to create a joint venture or partnership relation hereunder or pursuant to any other Operative Document between the Lessor and the Lessee is hereby expressly disclaimed.

SECTION 23.9. No Accord and Satisfaction.

The acceptance by the Lessor of any sums from the Lessee (whether as Basic Rent or otherwise) in amounts which are less than the amounts due and payable by the Lessee hereunder is not intended, nor shall be construed, to constitute an accord and satisfaction of any dispute between the Lessor and the Lessee regarding sums due and payable by the Lessee hereunder, unless the Lessor specifically deems it as such in writing.

SECTION 23.10. Survival.

The termination of this Lease pursuant to Section 18.1 shall in no event relieve the Lessee of its liabilities and obligations hereunder which accrued prior to such termination, all of which shall survive any such termination. The extension of any applicable statute of limitations by the Lessee, the Lessor or any other Indemnitee shall not affect such survival.

SECTION 23.11. Transfer of Leased Property.

Except as may be applicable under Article XXII, any transfer of the Leased Property pursuant to this Lease shall be at the Lessee’s expense. Upon receipt by the Lessor of payment in full of the Break Even Price pursuant to the applicable provision of this Lease, the Leased Property shall be transferred to the Lessee or any designee it may identify.

Any transfer of the Lessor’s interest in and to the Leased Property pursuant to this Lease shall be transferred on an “as is, where is, with all faults” basis, without covenants or warranties of title and without recourse, representation or warranty of any kind, other than with respect to the Lessor, the absence of Lessor Liens, and together with the due assumption by the Lessee (or its designee), of, and due release of the Lessor from, all obligations relating to the Leased Property. In connection with any transfer to an independent third party, the Lessee shall, or shall ensure that its designee shall, execute and deliver such documents, certificates and estoppels as may be required to facilitate the transfer of the Leased Property. Any provision in this Lease or other Operative Document to the contrary notwithstanding, no transfer of the Leased Property to the Lessee or to a third party buyer pursuant to the Return Option shall be made until the Lessor has received all Rent and other amounts then due and owing by the Lessee hereunder and under

 

39


the other Operative Documents. At or subsequent to the transfer or return of all or any of the Leased Property to a third party buyer pursuant to the Return Option, the Lessee will provide the Lessor with such lien and title searches as the Lessor may reasonably request to demonstrate to the Lessor’s satisfaction that the Leased Property is subject to no liens other than Permitted Liens as described in clauses (a) or (b) of the definition thereof. Notwithstanding anything contained herein or in the other Operative Documents to the contrary, any obligation of the Lessor to transfer any assets to the Lessee shall be satisfied by a transfer of such assets to any designee selected by it.

SECTION 23.12. Enforcement of Certain Warranties.

Unless an Event of Default shall have occurred and be continuing, the Lessor authorizes the Lessee (directly or through agents), without assuming any responsibility for the existence of such warranty or the validity of the authorization granted hereunder at the Lessee’s expense, to assert, during the Lease Term, all of the Lessor’s rights (if any) under any applicable warranty and any other claim that the Lessee or the Lessor may have under the warranties provided in connection with the Improvements and the Lessor agrees to cooperate, at the Lessee’s expense, with the Lessee and its agents in asserting such rights. Any amount recovered by the Lessee under any such warranties shall be retained by or paid over to the Lessee, subject to Section 23.13.

SECTION 23.13. Security Interest in Funds.

As long as a Material Default or Event of Default shall have occurred and be continuing, any amount that would otherwise be payable to the Lessee under the Operative Documents shall be paid to or retained by the Lessor (including amounts to be paid to the Lessee pursuant to Article XIII or Section 23.12) as security for the performance by the Lessee in full of its obligations under this Lease and the other Operative Documents and, provided an Event of Default exists, it may be applied to the obligations of the Lessee hereunder and under the other Operative Documents and distributed pursuant to Section 18.2. At such time as no Material Default or Event of Default shall be continuing, such amounts, net of any amounts previously applied to the Lessee’s obligations hereunder or under any other Operative Documents, shall be paid to the Lessee. Any such amounts which are held pending payment to the Lessee or application hereunder shall be invested by the Lessor as directed from time to time in writing by the Lessee, and at the expense and risk of the Lessee, in Permitted Investments. Any gain (including interest received) realized as the result of any such investment (net of any fees, commissions and other expenses, if any, incurred in connection with such investment) shall be applied from time to time in the same manner as the principal invested. Lessor shall not be liable for any losses on such investments or for any failure to make any investment,

SECTION 23.14. Submission to Jurisdiction.

EACH OF THE LESSOR AND THE LESSEE IRREVOCABLY AND UNCONDITIONALLY:

(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS LEASE, OR FOR RECOGNITION AND

 

40


ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, AND APPELLATE COURTS FROM ANY THEREOF;

(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDINGS MAY BE BROUGHT TO SUCH COURTS, AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND AGREES NOT TO PLEAD OR CLAIM THE SAME;

(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS SET FORTH ON SCHEDULE II TO THE PARTICIPATION AGREEMENT OR AT SUCH OTHER ADDRESS OF WHICH THE OTHER PARTIES HERETO SHALL HAVE BEEN NOTIFIED PURSUANT TO SECTION 8.3 OF THE PARTICIPATION AGREEMENT; AND

(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION.

SECTION 23.15. Jury Trial.

EACH OF THE LESSOR AND THE LESSEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS LEASE OR ANY OTHER OPERATIVE DOCUMENT OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS LEASE OR ANY OTHER OPERATIVE DOCUMENT AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.

SECTION 23.16. Payments.

All payments to be made by the Lessee hereunder shall be made to the Lessor in Dollars in immediately available and freely transferable funds at the place of payment, all such payments to be paid without setoff, counterclaim or reduction and without deduction for, and free from, any and all present or future taxes, levies, imposts, duties, fees, charges, deductions, withholding or liabilities with respect thereto or any restrictions or conditions of any nature. If the Lessee is required by law to make any deduction or withholding on account of any tax or other withholding or deduction from any sum payable by the undersigned hereunder, the Lessee shall pay any such tax or other withholding or deduction and shall pay such additional amount necessary to ensure that, after making any payment, deduction or withholding, the Lessor shall

 

41


receive and retain (free of any liability in respect of any payment, deduction or withholding) a net sum equal to what it would have received and so retained hereunder had no such deduction, withholding or payment been required to have been made, which payment or withholding is made subject to the limitations set forth in Sections 7.2(a)(iii) and 7.4 of the Participation Agreement, reimbursement obligations of Indemnitees set forth in Sections 7.2(a)(iii), 7.2(e) and 7.2(f) of the Participation Agreement and other rights of Lessee set forth in Sections 7.2(b)(i), 7.2(e), 7.2(f) and 7.4 of the Participation Agreement.

[Signature Pages Follow]

 

42


IN WITNESS WHEREOF, the undersigned have each caused this Lease to be duly executed and delivered by their respective representations thereunto duly authorized as of the day and year first above written.

 

BTMU CAPITAL LEASING & FINANCE, INC.,

AS L ESSOR
By:  

/s/ Michael D. Doyle

Name:   Michael D. Doyle
Title:   President

 

[THIS IS COUNTERPART NO.      OF      ORIGINALLY

EXECUTED COUNTERPARTS]


LAM RESEARCH CORPORATION,
AS L ESSEE
By:  

/s/ Odette Go

Name:   Odette Go
Title:   Treasurer

 

[THIS IS COUNTERPART NO.      OF      ORIGINALLY

EXECUTED COUNTERPARTS]


Schedule A

Recourse Deficiency Amount Percentages

 

1. Maximum Remarketing Obligation (Improvements): 86.5%

 

2. Maximum Remarketing Obligation (Land): $9,725,000


Exhibit A

Description of Site

Real Property in the City of Fremont, County of Alameda, State of California and described as follows:

PARCEL ONE:

PARCEL 1, PARCEL MAP 5001, FILED MARCH 18, 1987, IN BOOK 168 OF MAPS, AT PAGES 24 THROUGH 26, ALAMEDA COUNTY RECORDS.

PARCEL TWO:

AN EASEMENT FOR PRIVATE ACCESS FOR THE BENEFIT OF PARCEL ONE, ABOVE, OVER THAT PORTION OF PARCEL 2, PARCEL MAP 5001 DESIGNATED “J.A.E.” ON SAID MAP.

Exhibit 10.20

Fremont 1         

PLEDGE AGREEMENT

(Fremont 1)

BETWEEN

LAM RESEARCH CORPORATION

(“LRC”)

AND

BTMU CAPITAL LEASING & FINANCE, INC.

(“BTMUCLF”)

December 31, 2013


TABLE OF CONTENTS

 

              Page  

1.

 

DEFINITIONS AND INTERPRETATION

     2   
 

(A)

  

Definitions

     2   
 

(B)

  

Rules of Interpretation

     8   
 

(C)

  

Attachments

     8   

2.

 

PLEDGE AND GRANT OF SECURITY INTEREST

     9   

3.

 

PROVISIONS CONCERNING THE DEPOSIT TAKERS

     9   
 

(A)

  

Deposit Taker Agreements

     9   
 

(B)

  

Qualification of Deposit Takers Generally

     10   
 

(C)

  

Substitutions for Disqualified Deposit Takers

     10   
 

(D)

  

Other Voluntary Substitutions of Deposit Takers

     10   
 

(E)

  

Delivery of Deposit Taker’s Agreements by LRC and BTMUCLF

     11   
 

(F)

  

Constructive Possession of Collateral

     11   
 

(G)

  

Attempted Setoff by Deposit Taker

     11   

4.

 

DELIVERY AND MAINTENANCE OF COLLATERAL

     11   
 

(A)

  

Delivery of Cash Collateral by LRC

     12   
 

(B)

  

Status of the Deposit Accounts Under the Reserve Requirement Regulations

     12   
 

(C)

  

Acknowledgment by LRC that Requirements of this Agreement are Commercially Reasonable

     12   

5.

 

WITHDRAWAL OF COLLATERAL

     12   
 

(A)

  

Withdrawal of Cash Collateral Upon the Occurrence and During the Continuance of an Event of Default

     12   
 

(B)

  

Withdrawal and Application of Cash Collateral to Reduce or Satisfy the Secured Obligations to BTMUCLF

     12   
 

(C)

  

Withdrawal and Return of Cash Collateral Following Satisfaction of all Secured Obligations

     13   
 

(D)

  

No Other Right to Require or Make Withdrawals

     13   
 

(E)

  

BTMUCLF’s Covenant Not to Make Unauthorized Withdrawals

     13   

6.

 

REPRESENTATIONS AND COVENANTS OF LRC

     13   
 

(A)

  

Representations of LRC

     13   
 

(B)

  

Covenants of LRC

     15   

7.

 

AUTHORIZED ACTION BY BTMUCLF

     16   

 

-i-


TABLE OF CONTENTS

(continued)

 

              Page  

8.

 

DEFAULT AND REMEDIES

     16   
 

(A)

  

Remedies

     16   
 

(B)

  

Recovery Not Limited

     18   

9.

 

MISCELLANEOUS

     19   
 

(A)

  

Payments by LRC to BTMUCLF

     19   
 

(B)

  

Payments by BTMUCLF to LRC

     19   
 

(C)

  

Cumulative Rights, etc.

     19   
 

(D)

  

Survival of Agreements

     20   
 

(E)

  

Other Liable Party

     20   
 

(F)

  

Termination

     20   

 

-ii-


PLEDGE AGREEMENT

(FREMONT 1)

This PLEDGE AGREEMENT (Fremont 1) (this “ Agreement ”), dated as of December 31, 2013 (the “ Effective Date ”), is made by and between BTMU CAPITAL LEASING & FINANCE, INC. (“ BTMUCLF ”), a Delaware corporation, and LAM RESEARCH CORPORATION (“ LRC ”), a Delaware corporation.

RECITALS

A. LRC, as lessee, and BTMUCLF, as lessor, are parties to that certain Amended and Restated Lease Agreement (Fremont 1), dated of even date herewith (as amended, supplemented or otherwise modified from time to time pursuant thereto, the “Lease” ), pursuant to which the Lessee has agreed to lease from the Lessor, and the Lessor has agreed to lease to the Lessee, the Leased Property described therein.

B. LRC and BTMUCLF are also parties to that certain Participation Agreement, dated of even date herewith (as amended, supplemented or otherwise modified, the “ Participation Agreement ”) pursuant to which BTMUCLF commits to advance funds for the acquisition of Site Fremont 1 and the Existing Improvements thereon and the Personal Property used thereon subject to the terms and conditions set forth therein.

C. By this Agreement, BTMUCLF and LRC desire to establish the terms and conditions upon which LRC is pledging cash collateral for its obligations to BTMUCLF under the Lease and the Participation Agreement.

AGREEMENTS

 

1. DEFINITIONS AND INTERPRETATION.

(A) Definitions . As provided in the recitals above, all capitalized terms used in this Agreement which are defined in the Participation Agreement and not otherwise defined herein shall have the same meanings herein as set forth in Appendix I to the Participation Agreement. All terms used in this Agreement which are defined in the UCC and not otherwise defined herein shall have the same meanings herein as set forth therein, except where the context otherwise requires. As used in this Agreement, the following terms shall have the following respective meanings:

Account Office ” means, with respect to any Deposit Account maintained by any Deposit Taker, the office of such Deposit Taker in California or New York at which such Deposit Account is maintained as specified in the applicable Deposit Taker’s Agreement.

BTMU ” means The Bank of Tokyo-Mitsubishi UFJ, Ltd.

BTMU Downgrade Event ” means BTMU or any successor of BTMU fails to maintain a debt rating of at least (i) BBB- (in the case of long term debt) by Standard and Poor’s Corporation (the “ S&P Rating ”), and (ii) Baa3 (in the case of long term debt) by

 

2


Moody’s Investor Service, Inc. (the “ Moody Rating ”) and LRC shall elect to require that the Collateral held by BTMU to be transferred to an Eligible Deposit Taker pursuant to Section 3(C) hereof, provided that (i) such transferee shall satisfy the requirements of an Eligible Deposit Taker and (ii) LRC, Lessor and such replacement Eligible Deposit Taker have entered into a control agreement in form reasonably acceptable to all parties thereto. The parties hereto believe that it is improbable that the ratings systems used by Standard and Poor’s Corporation and by Moody’s Investor Service, Inc. will be discontinued or changed, but if such ratings systems are discontinued or changed, LRC shall be entitled to select and use a comparable ratings systems as a substitute for the S&P Rating or the Moody Rating, as the case may be, for purposes of determining the status of BTMU or such successor as an Eligible Deposit Taker.

BTMUCLF ” shall have the meaning given to that term in the introductory paragraph hereof.

Cash Collateral ” means (i) all money of LRC which LRC delivers to BTMUCLF or as directed by it for deposit in the Deposit Accounts maintained by the Deposit Takers pursuant to this Agreement, and (ii) all amounts on deposit in any of the Deposit Accounts from time to time, which have not been withdrawn or applied to Secured Obligations as provided in this Agreement.

Clearing System ” means the Depository Trust Company (“DTC”) and such other clearing or safekeeping system that may from time to time be used in connection with transactions relating to or the custody of any Securities, and any depository for any of the foregoing.

Collateral ” has the meaning indicated in Paragraph 2.

“Control Agreement” means any future blocked account control agreement that may be used by a Deposit Taker following any credit impairment as provided in the definition of Eligible Deposit Taker.

“Default” means any Event of Default and any default, event or condition which would, with the giving of any requisite notices and the passage of any requisite periods of time, constitute an Event of Default.

“Deposit Account” means a deposit account maintained by any Deposit Taker into which Cash Collateral has been or may in the future be deposited as provided in this Agreement.

“Deposit Taker” means, for BTMUCLF or any Participant, an Eligible Deposit Taker designated by it to act as the Deposit Taker for it under this Agreement. BTMUCLF has already designated BTMU as the Deposit Taker for BTMUCLF hereunder. Any Participant which is an Eligible Deposit Taker will be deemed to have designated itself to act as the Deposit Taker for it, unless some other designation is expressly set forth in this Agreement. Any Participant which is not an Eligible Deposit Taker will be expected to designate BTMU or, to the extent BTMU is not an Eligible Deposit Taker, another Person

 

3


which is an Eligible Deposit Taker (as reasonably approved by LRC) prior to any delivery of Cash Collateral by LRC pursuant to this Agreement. It is also understood, however, that each of BTMUCLF and any Participants, for itself only, may from time to time designate another Eligible Deposit Taker (as reasonably approved by LRC) as provided in subparagraphs 3(C) and 3(D) below.

“Deposit Taker Prerequisites” means, with respect to any Deposit Taker: (1) the requirement that such Deposit Taker establish a Deposit Account and provide to LRC and BTMUCLF the account number and other information regarding such Deposit Account which they must have to complete and submit a Deposit Taker’s Agreement covering such Deposit Account; and (2) the requirement that such Deposit Taker accept, execute and return a Deposit Taker’s Agreement covering each Deposit Account to be maintained by such Deposit Taker. It is understood that any Deposit Taker’s refusal or failure to satisfy the Deposit Taker Prerequisites will cause it to be a Disqualified Deposit Taker.

“Deposit Taker’s Agreement” means a completed Deposit Agreement in the form attached as Exhibit A , which specifically identifies a Deposit Account in which a Deposit Taker shall hold Cash Collateral delivered to it pursuant to this Agreement.

“Disqualified Deposit Taker” means any Person that BTMUCLF or any Participant has designated as a Deposit Taker, but that has not satisfied or no longer satisfies the following requirements:

(a) With respect to each Deposit Account in which such Person holds or will hold Collateral delivered to it pursuant to this Agreement, such Person must have received from BTMUCLF and LRC an executed Deposit Taker’s Agreement which specifically identifies such Deposit Account and which designates, at such Person’s election, an Account Office with respect to such Deposit Account in New York or California.

(b) Such Person must have executed and returned to BTMUCLF a Deposit Taker’s Agreement with respect to each such Deposit Account and must have complied with its Deposit Taker’s Agreements, and the representations set forth therein with respect to such Person must continue to be true and correct (except that such Person will not become a Disqualified Deposit Taker because of its failure to comply with its Deposit Taker’s Agreement, or because any such representation does not continue to be true and correct, if such failure is cured and all such representations are made true and correct in all material respects before the earlier of (i) thirty days after the Deposit Taker is notified thereof, and (ii) any date upon which BTMUCLF’s security interest in any Collateral maintained or held by such Deposit Taker is not a Qualified Pledge by reason of such failure to comply or such representation not being true and correct). Such Person must have complied in all material respects with the provisions in this Agreement applicable to Deposit Takers.

 

4


(c) Such Person must be an Eligible Deposit Taker.

“Eligible Deposit Taker” means:

(1) (a) BTMU or any successor of BTMU, acting through any branch, office or agency in New York or California that can lawfully maintain a Deposit Account as a Deposit Taker hereunder so long as no BTMU Downgrade Event shall occur or (b) Union Bank, N.A. or any successor of Union Bank, N.A., acting through any branch, office or agency in New York or California that can lawfully maintain a Deposit Account as a Deposit Taker hereunder so long as no Union Bank Downgrade Event shall occur;

(2) any Participant or Affiliate of a Participant that is (a) a commercial bank, organized under the laws of the United States of America or a state thereof or under the laws of another country which is doing business in the United States of America, (b) authorized to maintain deposit accounts for others through Account Offices in New York or California (as specified in its Deposit Taker’s Agreement) so long as no Participant Downgrade Event shall occur; or

(3) such Person that (a) has been designated by BTMUCLF or a Participant to act as the Deposit Taker for it under this Agreement, (b) is one of the fifty largest (measured by total assets) U.S. banks, or one of the one hundred largest (measured by total assets) banks in the world, (c) is acting through any branch, office or agency in New York or California that can lawfully maintain a Deposit Account as a Deposit Taker hereunder, and (d) has a debt ratings of at least (i) A- (in the case of long term debt) and A-1 (in the case of short term debt) or the equivalent thereof by Standard and Poor’s Corporation (the “ S&P Rating ”), and (ii) A3 (in the case of long term debt) and P-1 (in the case of short term debt) or the equivalent thereof by Moody’s Investor Service, Inc. (the “ Moody Rating ”), the parties hereto believing that it is improbable that the ratings systems used by Standard and Poor’s Corporation and by Moody’s Investor Service, Inc. will be discontinued or changed, but if such ratings systems are discontinued or changed, LRC shall be entitled to select and use a comparable ratings systems as a substitute for the S&P Rating or the Moody Rating, as the case may be, for purposes of determining the status of any bank as an Eligible Deposit Taker.

If at any time a Deposit Taker fails to satisfy the requirements of this definition above, such Deposit Taker shall cease being an Eligible Deposit Taker and LRC may, at its option, require that the Collateral held by such ineligible Deposit Taker be transferred to an Eligible Deposit Taker, provided that (i) such Eligible Deposit Taker satisfies the requirements of this definition above and (ii) LRC, Lessor and such replacement Eligible Deposit Taker have entered into a control agreement in form reasonably acceptable to all parties thereto.

 

5


“Event of Default” means the occurrence of any of the following:

(a) an Event of Default as defined in the Lease;

(b) any failure by LRC to provide funds as and when required by subparagraph 4(A) of this Agreement or under the Deposit Taker’s Agreement, on the date due;

(c) the failure of the pledge or security interest contemplated herein in any Deposit Account or Cash Collateral to be a Qualified Pledge (regardless of the characterization of any Deposit Accounts or Cash Collateral as deposit accounts, instruments or general intangibles under the UCC); unless, within five days after LRC becomes aware of such failure, LRC both (1) notifies BTMUCLF of such failure, and (2) cures such failure;

(d) the failure of any representation herein by LRC to be true (other than a failure described in another clause of this definition of Event of Default) and LRC and LRC shall fail to cure the underlying facts causing such representation, warranty, certification or statement to be incorrect in all material respects for a period of ten (10) Business Days after the earlier of Actual Knowledge or notice thereof;

(e) the failure of any representation made by LRC in subparagraph 6(A)(1) to be true, if within fifteen days after LRC becomes aware of such failure, LRC does not (1) notify BTMUCLF of such failure, and (2) cure such failure; and

(f) the failure by LRC timely and properly to observe, keep or perform any covenant, agreement, warranty or condition herein required to be observed, kept or performed (other than a failure described in another clause of this definition of Event of Default), if diligent efforts are not being taken by LRC to cure such Default and such failure is not cured within thirty (30) days after the earlier of Actual Knowledge thereof by LRC or receipt of written notice thereof; provided, however, that if such failure is capable of cure but cannot be cured by payment of money or cannot be cured by diligent efforts within such thirty (30) day period but such diligent efforts shall be properly commenced within such thirty (30) day period and LRC is diligently pursuing, and shall continue to pursue diligently remedy of such failure, such cure period shall be extended for an additional period of time in excess of such cure period as may be necessary to cure, not to extend beyond the earlier to occur of (i) the Lease Expiration Date or (ii) one hundred and twenty (120) days after the earlier of Actual Knowledge thereof or written notice thereof having been given to LRC.

“Lien” means, with respect to any property or assets, any right or interest therein of a creditor to secure indebtedness or other obligations of any kind which is owed to him or any other arrangement with such creditor which provides for the payment of such indebtedness or obligations out of such property or assets or which allows him to have such indebtedness or obligations satisfied out of such property or assets prior to the general creditors of any owner thereof, including any lien, mortgage, security interest, pledge,

 

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deposit, production payment, rights of a vendor under any title retention or conditional sale agreement or lease substantially equivalent thereto, tax lien, mechanic’s or materialman’s lien, or any other charge or encumbrance for security purposes, whether arising by law or agreement or otherwise, but excluding any right of setoff which arises without agreement in the ordinary course of business. “Lien” also means any filed financing statement, any registration with an issuer of uncertificated securities, or any other arrangement which would serve to perfect a Lien described in the preceding sentence, regardless of whether such financing statement is filed, such registration is made, or such arrangement is undertaken before or after such Lien exists.

Make Whole Amount ” means the sum of the following:

(1) the amount (if any) by which the Lease Balance exceeds any Recourse Deficiency Amount which was actually received by BTMUCLF on the Base Term Expiration Date in accordance with Articles XXI and XXII of the Lease, together with interest on such excess computed at the Overdue Rate for the period commencing on the Base Term Expiration Date and ending on the date of an Expiration True-Up; plus

(2) any unpaid Base Rent or other amounts due to BTMUCLF pursuant to the Lease or other Operative Documents (except pursuant to Other Lease Documents); plus

(3) BTMUCLF’s Transaction Costs; plus

(4) the amount, but not less than zero, by which (i) all Taxes, insurance premiums and other Claims of every kind suffered or incurred by BTMUCLF (whether or not reimbursed in whole or in part by another Person) with respect to the ownership, operation or maintenance of the Leased Property during the Extended Remarketing Period, exceeds (ii) any rents or other sums collected by BTMUCLF during such period from third parties as consideration for any lease or other contracts made by BTMUCLF that authorize the use and enjoyment of the Leased Property by such parties; together with interest on such excess computed at the Overdue Rate for each day prior to the Base Term Expiration Date.

“Other Liable Party” means any Person, other than LRC, who may now or may at any time hereafter be primarily or secondarily liable for any of the Secured Obligations or who may now or may at any time hereafter have granted to BTMUCLF a Lien against any of its assets to secure any Secured Obligations.

“Participant” means, with respect to the Lease, any Participation Holder as defined in Section 6.4 of the Participation Agreement.

Participant Downgrade Event ” means Participant or any successor of Participant fails to maintain a debt rating of at least (i) BBB- (in the case of long term debt) by Standard and Poor’s Corporation (the S&P Rating ), and (ii) Baa3 (in the case of long term debt) by Moody’s Investor Service, Inc. (the Moody Rating ) and LRC shall elect to require that the Collateral held by Participant to be transferred to an Eligible Deposit Taker pursuant to Section 3(C) hereof, provided that (i) such transferee shall satisfy the requirements of an Eligible Deposit Taker and (ii) LRC, Lessor and such replacement Eligible Deposit Taker

 

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have entered into a control agreement in form reasonably acceptable to all parties thereto. The parties hereto believe that it is improbable that the ratings systems used by Standard and Poor’s Corporation and by Moody’s Investor Service, Inc. will be discontinued or changed, but if such ratings systems are discontinued or changed, LRC shall be entitled to select and use a comparable ratings systems as a substitute for the S&P Rating or the Moody Rating, as the case may be, for purposes of determining the status of Participant or such successor as an Eligible Deposit Taker.

“Percentage” means with respect to each Participant and the Deposit Taker for such Participant, the percentage obtained by dividing (x) the amount of the outstanding Equity Investment assumed by such Participant pursuant to Section 6.4 of the Participation Agreement by (y) the aggregate amount of the Equity Investment of the Participants. Percentages may be adjusted from time to time as provided in the Participation Agreement or as provided in supplements thereto executed as provided in the Participation Agreement.

“Qualified Pledge” means a pledge or security interest that constitutes a valid, perfected, first priority pledge or security interest.

“Secured Obligations” means and includes all obligations of LRC under the Operative Documents (except with respect to the Other Lease Documents) including, without limitation, (i) LRC’s obligation to pay the Recourse Deficiency Amount as provided in Article XXII of the Lease, (ii) LRC’s obligation to pay the Break-Even Price - Special Land Value as the purchase price for the Leased Property pursuant to Sections 20.1, 20.2 or 21.1(a) of the Lease, and (iv) any damages incurred by BTMUCLF or other amounts due under the Operative Documents (except with respect to the Other Lease Documents) following an Event of Default including any rejection by LRC of the Lease or any other Operative Document (except with respect to the Other Lease Documents) in any bankruptcy, insolvency or similar proceeding.

UCC ” means the Uniform Commercial Code as in effect in the State of New York from time to time, and the Uniform Commercial Code as in effect in any other jurisdiction which governs the perfection or non-perfection of the pledge of and security interests in the Collateral created by this Agreement.

(B) Rules of Interpretation. The rules of interpretation set forth in Appendix I to the Participation Agreement are hereby incorporated by reference.

(C) Attachments. All attachments to this Agreement are a part hereof for all purposes.

Union Bank Downgrade Event ” means Union Bank, N.A. or any successor of Union Bank, N.A. fails to maintain a debt rating of at least (i) BBB- (in the case of long term debt) by Standard and Poor’s Corporation (the S&P Rating ), and (ii) Baa3 (in the case of long term debt) by Moody’s Investor Service, Inc. (the Moody Rating ) and LRC shall elect to require that the Collateral held by Union Bank, N.A. to be transferred to an Eligible Deposit Taker pursuant to Section 3(C) hereof, provided that (i) such transferee shall satisfy the requirements of an Eligible Deposit Taker and (ii) LRC, Lessor and such

 

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replacement Eligible Deposit Taker have entered into a control agreement in form reasonably acceptable to all parties thereto. The parties hereto believe that it is improbable that the ratings systems used by Standard and Poor’s Corporation and by Moody’s Investor Service, Inc. will be discontinued or changed, but if such ratings systems are discontinued or changed, LRC shall be entitled to select and use a comparable ratings systems as a substitute for the S&P Rating or the Moody Rating, as the case may be, for purposes of determining the status of Union Bank, N.A. or such successor as an Eligible Deposit Taker.

 

2. PLEDGE AND GRANT OF SECURITY INTEREST.

As security for the Secured Obligations, LRC hereby pledges and assigns to BTMUCLF and grants to BTMUCLF a continuing security interest and lien in and against all right, title and interest of LRC in and to the following property, whether now or hereafter existing, whether tangible or intangible, whether presently owned or vested in or hereafter acquired by LRC and wherever the same may be located (collectively and severally, the “Collateral”) :

(a) all Cash Collateral and all Deposit Accounts; and all cash and other assets from time to time held in or on deposit in any Deposit Account and all general intangibles arising from or relating to any Deposit Account or such cash or other assets; and all documents, instruments and agreements evidencing the same; and all extensions, renewals, modifications and replacements of the foregoing; and any interest or other amounts payable in connection therewith; and

(b) all proceeds of the foregoing (including whatever is receivable or received when Collateral or proceeds is invested, sold, collected, exchanged, returned, substituted or otherwise disposed of, whether such disposition is voluntary or involuntary, including rights to payment and return premiums and insurance proceeds under insurance with respect to any Collateral, and all rights to payment with respect to any cause of action affecting or relating to the Collateral).

The pledge, assignment and grant of a security interest made by LRC hereunder is for security of the Secured Obligations only; the parties to this Agreement do not intend that LRC’s delivery or deposit of any Collateral, including the Cash Collateral, as herein provided will constitute an advance payment of any Secured Obligations or liquidated damages, nor do the parties intend that the Collateral increase the dollar amount of the Secured Obligations.

 

3. PROVISIONS CONCERNING THE DEPOSIT TAKERS.

(A) Deposit Taker Agreements . Prior to the Closing, LRC must (1) ask BTMU, as the designated Deposit Taker for BTMUCLF, and each Eligible Deposit Taker designated by any Participant to act as the Deposit Taker for it under this Agreement, to satisfy the Deposit Taker Prerequisites; and (2) execute and provide to BTMUCLF a completed Deposit Taker’s Agreement for BTMUCLF’s execution and delivery to each Deposit Taker. Promptly after receipt of a properly completed Deposit Taker’s Agreement executed by LRC and in form ready to be executed by BTMU or any other Eligible

 

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Deposit Taker named therein, BTMUCLF must execute such Deposit Taker’s Agreement and deliver it to the appropriate Deposit Taker as necessary for the satisfaction of the Deposit Taker Prerequisites.

Without limiting the foregoing, it is understood that (i) BTMUCLF and any Participant may designate BTMU as its Deposit Taker, (ii) any Participant may designate itself or any of its Affiliates as its Deposit Taker so long as the Participant or its Affiliate, as the case may be, is an Eligible Deposit Taker, and (iii) as provided in both the preceding provisions of this subparagraph and in subparagraph 3(E), BTMUCLF and LRC must promptly upon request execute and deliver any properly completed Deposit Taker Agreement requested by BTMUCLF or any Participant to facilitate the designations of Deposit Takers contemplated by this Agreement. If any Participant has not already designated an Eligible Deposit Taker to act as Deposit Taker for it under this Agreement at any time when such a designation is required, then BTMUCLF may make the designation for such Participant; subject, however, to such Participant’s rights under subparagraphs 3(D) and 3(E).

(B) Qualification of Deposit Takers Generally . Notwithstanding anything herein to the contrary, BTMUCLF may decline to deposit or maintain Cash Collateral hereunder with any Disqualified Deposit Taker.

(C) Substitutions for Disqualified Deposit Takers .

(1) Upon learning that any Deposit Taker has become a Disqualified Deposit Taker, LRC or BTMUCLF may request that the party for whom such Disqualified Deposit Taker has been designated a Deposit Taker ( i.e., BTMUCLF or the applicable Participant) (a) designate another Eligible Deposit Taker as its new, substitute Deposit Taker, and (b) direct the substitute to satisfy the Deposit Taker Prerequisites.

(2) Pending the designation of a substitute Deposit Taker as provided in this subparagraph 3(C) and its execution and delivery to BTMUCLF of an appropriate Deposit Taker’s Agreement, BTMUCLF may withdraw Collateral held by the Deposit Taker to be replaced and deposit such Collateral with other Deposit Takers. If at any time no Deposit Takers have been designated other than Disqualified Deposit Takers, then BTMUCLF must itself select a new Eligible Deposit Taker to act as a Deposit Taker for it and direct the new Eligible Deposit Taker to satisfy the Deposit Taker Prerequisites.

(3) If, following a BTMU Downgrade Event, BTMU subsequently maintains the S&P Rating and Moody Rating required by clauses (i) and (ii) of the definition of BTMU Downgrade Event, BTMUCLF may designate BTMU as its new, substitute Deposit Taker and to have Collateral previously withdrawn from BTMU promptly transferred to BTMU to be held in accordance herewith and the Deposit Taker’s Agreement (or a substitute Deposit Taker’s Agreement on the identical terms as that to which such Collateral was previously subject).

(D) Other Voluntary Substitutions of Deposit Takers . BTMUCLF may, and with the written approval of BTMUCLF (which approval will not be unreasonably

 

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withheld) any Participant may, at any time designate for itself a new Deposit Taker (in replacement of any prior Deposit Taker acting for it hereunder); provided, the Person so designated is not be a Disqualified Taker.

(E) Delivery of Deposit Taker’s Agreements by LRC and BTMUCLF . To the extent required for the designation of a new Deposit Taker by BTMUCLF or any Participant pursuant to subparagraph 3(D), or to permit the substitution or replacement of a Deposit Taker for BTMUCLF or any Participant as provided in subparagraphs 3(C) and 3(D), LRC and BTMUCLF shall promptly execute and deliver any properly completed Deposit Taker’s Agreement requested by BTMUCLF or the applicable Participant.

(F) Constructive Possession of Collateral . The possession by a Deposit Taker of any money, instruments, chattel paper, financial assets or other property constituting Collateral or evidencing Collateral shall be deemed to be possession by BTMUCLF or a person designated by BTMUCLF, for purposes of perfecting the security interest granted to BTMUCLF hereunder pursuant to the UCC or other Applicable Law; and notifications to a Deposit Taker by other Persons holding any such property, and acknowledgments, receipts or confirmations from any such Persons delivered to a Deposit Taker, and control agreements made by any such Person with Deposit Taker with respect to any such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, or control agreements with, financial intermediaries, bailees or agents (as applicable) of such Deposit Taker for the benefit of BTMUCLF for the purposes of perfecting such security interests under Applicable Law.

However, nothing in this subparagraph will be construed to permit or authorize any replacement of Cash Collateral required by this Agreement with other types of Collateral or any substitution of other types of Collateral for Cash Collateral hereunder.

(G) Attempted Setoff by Deposit Taker . By delivery of a Deposit Taker’s Agreement, each Deposit Taker must agree not to setoff or attempt a setoff, without in each case first obtaining the prior written authorization of BTMUCLF (which BTMUCLF will not grant without the prior written consent of all Participants, if applicable), obligations owed to such Deposit Taker against any Collateral held by it from time to time. Nevertheless, LRC acknowledges and agrees (without limiting its right to recover any resulting damages from any Deposit Taker that violates such agreements) that BTMUCLF shall not be responsible for, or be deemed to have taken any action against LRC because of, any violation of such agreement by any Deposit Taker. Further, and without limiting the foregoing, as additional consideration for BTMUCLF’s accommodations to LRC, including BTMUCLF’s acceptance of the Collateral in lieu of other forms of security as collateral for the Secured Obligations, LRC hereby waives and covenants not to assert any defense or claim arising out of (i) the California antideficiency laws, including without limitation California Code of Civil Procedure Sections 580a, 580b, 580d and 726, and (ii) without limiting the generality of the foregoing, Walker v. Community Bank , 10 Cal. 3d 729, 111 Cal. Rptr. 897, 518 P.2d 329 (1974), Security Pacific Nat’l Bank v. Wozab , 51 Cal. 3d 991, 275 Cal. Rptr. 201, 800 P.2d 557 (1990), and similar cases, to the extent such claim arises out of or relates to the exercise of set off rights by any Deposit Taker.

 

4. DELIVERY AND MAINTENANCE OF COLLATERAL.

 

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(A) Delivery of Cash Collateral by LRC . On the Base Term Commencement Date as a condition precedent thereto under the Participation Agreement, LRC must deliver or cause to be delivered to Deposit Takers for deposit directly into the Deposit Accounts, in either case subject to the pledge and security interest created hereby, funds as Cash Collateral then needed (if any) in an amount equal to the Lease Balance (including any Advances or other amounts added to the Lease Balance on that date as provided in the Participation Agreement).

(B) Status of the Deposit Accounts Under the Reserve Requirement Regulations . Each Deposit Taker shall be permitted to structure the Deposit Account maintained by it as a nonpersonal time deposit under 12 C.F.R., Part II, Chapter 204 (commonly known as “Regulation D”). Accordingly, any Deposit Taker may require at least seven days advance notice of any withdrawal or transfer of funds from the Deposit Account maintained by it and, to the extent LRC has the right to request withdrawals therefrom, may limit the number of withdrawals or transfers from such Deposit Account to no more than six in any calendar month, notwithstanding anything to the contrary herein or in any deposit agreement that LRC and such Deposit Taker may enter into with respect to such Deposit Account. As necessary to satisfy the seven days notice requirement with respect to withdrawals by BTMUCLF when required by LRC pursuant to the provisions below, BTMUCLF shall notify the affected Deposit Takers promptly after receipt of any notice from LRC described in subparagraph 5(B).

(C) Acknowledgment by LRC that Requirements of this Agreement are Commercially Reasonable . LRC acknowledges and agrees that the requirements set forth herein concerning receipt, deposit, withdrawal, allocation, application and distribution of Cash Collateral by BTMUCLF, including the requirements and time periods set forth in the Paragraph 5, are commercially reasonable.

 

5. WITHDRAWAL OF COLLATERAL.

(A) Withdrawal of Cash Collateral Upon the Occurrence and During the Continuance of an Event of Default . Upon the occurrence and during the continuance of an Event of Default, without any instruction or request of LRC, BTMUCLF may withdraw and retain any Cash Collateral held by any Deposit Taker (which retention by BTMUCLF shall be free and clear of all liens and security interests hereunder and any rights of LRC thereto shall be released, terminated and waived without further action) as a payment on behalf of LRC of any amounts then due from LRC under Article XVIII of the Lease. To the extent BTMUCLF has exercised its rights and remedies thereunder and has indefeasibly satisfied the Secured Obligations in full in accordance with Article XVIII of the Lease, LRC may require BTMUCLF to withdraw and promptly pay to LRC any Cash Collateral still held by any Deposit Taker.

(B) Withdrawal and Application of Cash Collateral to Reduce or Satisfy the Secured Obligations to BTMUCLF . Except following the occurrence and during the continuance of an Event of Default, to satisfy the Secured Obligations in full, LRC may require BTMUCLF to withdraw and retain any Cash Collateral held by any Deposit Taker on the Base Term Expiration Date (which retention by BTMUCLF shall be free and clear of all liens and security interests hereunder and any rights of LRC thereto shall be released,

 

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terminated and waived without further action) as a payment on behalf of LRC of any amounts then due from LRC under Articles XX, XXI or XXII of the Lease; provided, that by a notice in the form of Exhibit B , LRC must have notified BTMUCLF of the required withdrawal and payment to BTMUCLF at least ten days prior to the date upon which it is to occur and when no Event of Default (under and as defined in this Agreement or as defined in the Lease) has occurred and is continuing. To the extent LRC has validly exercised the Return Option under the Lease and the Recourse Deficiency Amount has been indefeasibly satisfied in full on the Base Term Expiration Date in accordance with Articles XXI and XXII of the Lease, LRC may require BTMUCLF to withdraw and pay to LRC Cash Collateral held by any Deposit Taker on the Base Term Expiration Date in an amount not to exceed the Make Whole Amount and when no Default or Event of Default (under and as defined in this Agreement or as defined in the Lease) has occurred and is continuing.

(C) Withdrawal and Return of Cash Collateral Following Satisfaction of all Secured Obligations . Following the Base Term Expiration Date, when all Secured Obligations have been indefeasibly satisfied in full, any remaining Cash Collateral that has not been withdrawn and applied against the Secured Obligations shall revert to LRC as provided in subparagraph 9(F), whereupon LRC may require BTMUCLF to withdraw such remaining Cash Collateral then maintained pursuant to this Agreement and promptly transfer such remaining Cash Collateral to LRC.

(D) No Other Right to Require or Make Withdrawals . LRC may not withdraw or require any withdrawal of Collateral from any account or deposit account pledged hereunder, including the Deposit Accounts, except as expressly provided in the preceding subparagraphs of this Paragraph 5. LRC acknowledges that it will have no check writing privileges or line of credit or credit card privileges under any such pledged account or deposit account, including the Deposit Accounts.

(E) BTMUCLF’s Covenant Not to Make Unauthorized Withdrawals . Notwithstanding provisions of any Control Agreement or of any Deposit Taker’s Agreement which may state that BTMUCLF is entitled to withdraw Collateral held by any Deposit Taker without any prior consent or authorization of LRC, BTMUCLF covenants to LRC (as between BTMUCLF and LRC) that BTMUCLF will not exercise such rights to withdraw Collateral except (1) as required or permitted by this Paragraph 5, (2) in the exercise of BTMUCLF’s rights or remedies as otherwise herein provided, or (3) as may from time to time be requested or approved by LRC.

 

6. REPRESENTATIONS AND COVENANTS OF LRC.

(A) Representations of LRC . LRC represents to BTMUCLF as follows:

(1) LRC is the legal and beneficial owner of the Collateral (or, in the case of after-acquired Collateral, at the time LRC acquires rights in the Collateral, will be the legal and beneficial owner thereof), subject to the pledge and rights hereby granted in favor of BTMUCLF. No other Person has (or, in the case of after-acquired Collateral, at the time LRC acquires rights therein, will have) any right, title, claim or interest (by way of Lien, purchase option or otherwise) in, against or to the Collateral, except for rights created hereunder. The Collateral shall

 

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be deposited with the Deposit Taker hereunder and under the Deposit Taker’s Agreement free and clear of any Lien.

(2) BTMUCLF has (or in the case of after-acquired Collateral, at the time LRC acquires rights therein, will have) a valid, first priority, perfected pledge of and security interest in the Collateral, regardless of the characterization of the Collateral as deposit accounts, instruments or general intangibles under the UCC, but assuming that the representations of each Deposit Taker in its Deposit Taker’s Agreement are true.

(3) LRC has delivered to BTMUCLF, together with all necessary stock powers, endorsements, assignments and other necessary instruments of transfer, the originals of all documents, instruments and agreements evidencing the Collateral in order to comply with Section 2 of the Initial Control Agreement.

(4) Neither the ownership or the intended use of the Collateral by LRC, nor the pledge of Collateral or the grant of the security interest by LRC to BTMUCLF herein, nor the exercise by BTMUCLF of its rights or remedies hereunder, will (i) violate any provision of (a) Applicable Law, (b) the articles or certificate of incorporation, charter or bylaws of LRC, or (c) any agreement, judgment, license, order or permit applicable to or binding upon LRC or its properties, or (ii) result in or require the creation of any Lien, charge or encumbrance upon any assets or properties of LRC except as expressly contemplated in this Agreement. Except as expressly contemplated in this Agreement, no consent, approval, authorization or order of, and no notice to or filing with any court, governmental authority or third party is required in connection with the pledge or grant by LRC of the security interest contemplated herein or the exercise by BTMUCLF of its rights and remedies hereunder.

 

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(B) Covenants of LRC . LRC hereby agrees as follows:

(1) LRC, at LRC’s expense, shall promptly procure, execute and deliver to BTMUCLF all documents, instruments and agreements and perform all acts which are necessary or desirable, or which BTMUCLF may request, to establish, maintain, preserve, protect and perfect the Collateral, the pledge thereof to BTMUCLF or the security interest granted to BTMUCLF therein and the first priority of such pledge or security interest or to enable BTMUCLF to exercise and enforce its rights and remedies hereunder with respect to any Collateral. Without limiting the generality of the preceding sentence, LRC shall (A) procure, execute and deliver to BTMUCLF all stock powers, endorsements, assignments, financing statements and other instruments of transfer requested by BTMUCLF, (B) deliver to BTMUCLF promptly upon receipt all originals of Collateral consisting of instruments, documents and chattel paper, and (C) cause the security interest of BTMUCLF in any Collateral consisting of securities to be recorded or registered in the books of any financial intermediary or Clearing System requested by BTMUCLF.

(2) When Applicable Law provides more than one method of perfection of BTMUCLF’s security interest in the Collateral, BTMUCLF may choose the method(s) to be used. LRC hereby authorizes BTMUCLF to file any financing statements or financing statement amendment covering all or any portion of the Collateral or relating to the security interest created herein.

(3) LRC shall not use or authorize or consent to any use of any Collateral in violation of any provision of this Agreement or any other Operative Document or any Applicable Law.

(4) LRC shall pay promptly when due all Taxes and other governmental charges, Liens and other charges now or hereafter imposed upon, relating to or affecting any Collateral or arising on any interest or earnings thereon.

(5) LRC shall appear in and defend, on behalf of BTMUCLF, any action or proceeding which may affect LRC’s title to or BTMUCLF’s interest in the Collateral.

(6) Subject to the express rights of LRC under Paragraph 5, LRC shall not surrender or lose possession of (other than to BTMUCLF or a Deposit Taker pursuant hereto), encumber, lease, rent, option, or otherwise dispose of or transfer any Collateral or right or interest therein, and LRC shall keep the Collateral free of all Liens (other than Liens granted under this Agreement). The rights granted to BTMUCLF pursuant to this Agreement are in addition to the rights granted to BTMUCLF in any Control Agreement or other custody, investment management, trust, account control agreement or similar agreement. In case of conflict between the provisions of this Agreement and of any other such agreement, the provisions of this Agreement will prevail.

 

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(7) LRC will not take any action which would in any manner impair the value or enforceability of BTMUCLF’s pledge of or security interest in any Collateral, nor will LRC fail to take any action which is required to prevent (and which LRC knows is required to prevent) an impairment of the value or enforceability of BTMUCLF’s pledge of or security interest in any Collateral.

(8) Without limiting the foregoing, within five days after LRC becomes aware of any failure of the pledge or security interest contemplated herein in any Deposit Account or Cash Collateral to be a valid, perfected, first priority pledge or security interest (regardless of the characterization thereof as deposit accounts, securities accounts, instruments or general intangibles under the UCC), LRC shall notify BTMUCLF of such failure.

 

7. AUTHORIZED ACTION BY BTMUCLF.

LRC hereby irrevocably appoints BTMUCLF as LRC’s attorney-in-fact for the purpose of authorizing BTMUCLF to perform (but BTMUCLF shall not be obligated to and shall incur no liability to LRC or any third party for failure to perform) any act which LRC is obligated by this Agreement to perform, and to exercise, consistent with the other provisions of this Agreement, such rights and powers as LRC might exercise with respect to the Collateral during any period in which a Default has occurred and is continuing, including the right to (a) collect by legal proceedings or otherwise and endorse, receive and receipt for all dividends, interest, payments, proceeds and other sums and property now or hereafter payable on or on account of the Collateral; (b) enter into any extension, reorganization, deposit, merger, consolidation or other agreement pertaining to, or deposit, surrender, accept, hold or apply other property in exchange for the Collateral; (c) insure, process, preserve and enforce the Collateral; (d) make any compromise or settlement, and take any action it deems advisable, with respect to the Collateral; (e) pay any indebtedness of LRC relating to the Collateral; and (f) execute UCC financing statements and other documents, instruments and agreements required hereunder. Such appointment is coupled with an interest and shall be valid and binding on LRC and its successor and assigns.

 

8. DEFAULT AND REMEDIES.

(A) Remedies . In addition to all other rights and remedies granted to BTMUCLF by this Agreement and other Operative Documents (except under Other Lease Documents) or by the UCC and other Applicable Laws, BTMUCLF may, upon the occurrence and during the continuance of any Event of Default (as defined herein and in the Lease), exercise any one or more of the following rights and remedies, all of which will be in furtherance of its rights as a secured party under the UCC:

(1) BTMUCLF may collect, receive, appropriate or realize upon the Collateral or otherwise foreclose or enforce the pledge of or security interests in any or all Collateral in any manner permitted by Applicable Law or in this Agreement.

(2) BTMUCLF may notify any Deposit Taker to pay all or any portion of Cash Collateral held by such Deposit Taker directly to BTMUCLF up to an amount equal to the then outstanding Secured Obligations. BTMUCLF shall apply

 

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any Cash Collateral or proceeds of other Collateral received by BTMUCLF after the occurrence of such an Event of Default to the Secured Obligations in any order BTMUCLF believes to be in its best interest. If any such Cash Collateral or proceeds received by BTMUCLF remains after all Secured Obligations have been paid in full, BTMUCLF will deliver or direct the Deposit Takers to deliver the same to LRC or other Persons entitled thereto.

Without limiting the foregoing, when any such Event of Default has occurred and is continuing, BTMUCLF may, without notice or demand, sell, redeem, offset, setoff, debit, charge or otherwise dispose of or liquidate into cash any Collateral and/or to apply it or the proceeds thereof to repay any or all of the Secured Obligations in such order as BTMUCLF believes to be in its best interest, regardless of whether any such Secured Obligations are contingent, unliquidated or unmatured or whether BTMUCLF has any other recourse to LRC or any Other Liable Party or any other collateral or assets (including the Property). Moreover, regardless of whether BTMUCLF commences any action to foreclose the lien and security interest granted in the Lease or the Memorandum of Lease (a “Property Foreclosure” ) before, after or contemporaneously with any action BTMUCLF may take under this Pledge Agreement to collect Cash Collateral or proceeds of other Collateral, and regardless of whether BTMUCLF actually receives proceeds of a Property Foreclosure before or after it receives Cash Collateral or proceeds of other Collateral, BTMUCLF will be entitled to apply Cash Collateral and proceeds of other Collateral to satisfy or reduce the Secured Obligations before applying the proceeds of a Property Foreclosure to other remaining obligations secured as described in the Lease and the Memo of Lease. Also, BTMUCLF may exercise its rights without regard to any premium or penalty from liquidation of any Collateral and without regard to LRC’s basis or holding period for any Collateral.

In connection with the exercise of its remedies under this Agreement, BTMUCLF may sell from its offices in Boston, Massachusetts, New York, New York or elsewhere, in one or more sales, at the price as BTMUCLF deems best, for cash or on credit or for other property, for immediate or future delivery, any item of the Collateral, at any broker’s board or at public or private sale, in any reasonable manner permissible under the UCC (except that, to the extent permissible under the UCC, LRC waives any requirements of the UCC) and BTMUCLF or anyone else may be the purchaser of the Collateral and hold it free from any claim or right including, without limitation, any equity of redemption of LRC, which right LRC expressly waives. BTMUCLF may in its sole discretion elect to conduct any sale (and related offers) of any Collateral in such a manner as to avoid the need for registration or qualification thereof under any Federal or state securities laws, that such conduct may include restrictions (including as to potential purchasers) and other requirements (such as purchaser representations) which may result in prices or other terms less favorable than those which might have been obtained through a public sale not subject to such restrictions and requirements and that any offer and sale so conducted shall be deemed to have been made in a commercially reasonable manner.

In connection with the exercise of its remedies, BTMUCLF may also, in its sole discretion, for its own benefit, acting either in its own name or in the name of LRC:

 

17


(i) hold any monies or proceeds representing the Collateral in a cash collateral account in U.S. dollars or other currency that BTMUCLF reasonably selects and invest such monies or proceeds on behalf of LRC;

(ii) convert any Collateral denominated in a currency other than U.S. dollars to U.S. dollars at the spot rate of exchange for the purchase of U.S. dollars with such other currency which is quoted by a branch or office of BTMUCLF’s Parent selected by BTMUCLF (or, if no such rate is quoted by BTMUCLF’s Parent on any relevant date, then at a rate estimated by BTMUCLF on the basis of other quoted spot rates) or another prevailing rate that BTMUCLF reasonably deems more appropriate; or

(iii) apply any portion of the Collateral, first, to pay or reimburse all costs and expenses of BTMUCLF and then to all or any portion of the Secured Obligations in such order as BTMUCLF may believe to be in its best interest.

In any event, LRC will pay to BTMUCLF upon demand all expenses (including reasonable, out-of-pocket fees, costs and expenses of counsel to BTMUCLF and any Participant) incurred by BTMUCLF in connection with the exercise of any of BTMUCLF’s rights or remedies under this Agreement.

Notwithstanding that BTMUCLF may continue to hold Collateral and regardless of the value of the Collateral, LRC will remain liable for the payment in full of any unpaid balance of the Secured Obligations.

In any case where notice of any sale or disposition of any Collateral is required, LRC hereby agrees that ten (10) days notice of such sale or disposition is reasonable.

(B) Recovery Not Limited . To the fullest extent permitted by Applicable Law, LRC waives any right to require that BTMUCLF proceed against any other Person, exhaust any Collateral or other security for the Secured Obligations, or to have any Other Liable Party joined with LRC in any suit arising out of the Secured Obligations or this Agreement, or pursue any other remedy in their power. LRC waives any and all notice of acceptance of this Agreement.

LRC further waives notice of the creation, modification, rearrangement, renewal or extension for any period of any of the Secured Obligations of any Other Liable Party from time to time and any defense arising by reason of any disability or other defense of any Other Liable Party or by reason of the cessation from any cause whatsoever of the liability of any Other Liable Party. Until all of the Secured Obligations shall have been paid in full, LRC shall have no right to subrogation, reimbursement, contribution or indemnity against any Other Liable Party and LRC waives the right to enforce any remedy which BTMUCLF has or may hereafter have against any Other Liable Party, and waives any benefit of and any right to participate in any other security whatsoever now or hereafter held by or on behalf of BTMUCLF. LRC authorizes BTMUCLF, without notice or demand and without any reservation of rights against LRC and without affecting LRC’s liability hereunder or on the Secured Obligations, from time to time to (a) take or hold any other property of any type

 

18


from any other Person as security for the Secured Obligations, and exchange, enforce, waive and release any or all of such other property, (b) after and during the continuance of any Event of Default (as defined herein or in the Lease), apply or require the application of the Collateral (in accordance with this Agreement) or such other property in any order they may determine and to direct the order or manner of sale thereof as they may determine, (c) renew, extend for any period, accelerate, modify, compromise, settle or release any of the obligations of any Other Liable Party with respect to any or all of the Secured Obligations or other security for the Secured Obligations, and (d) release or substitute any Other Liable Party.

 

9. MISCELLANEOUS.

(A) Payments by LRC to BTMUCLF . All payments and deliveries of funds required to be made by LRC to BTMUCLF hereunder shall be paid or delivered in immediately available funds by wire transfer to the Deposit Account in accordance with wiring instructions which will be provided by BTMUCLF to LRC. Time is of the essence as to all payments and deliveries of funds by LRC to BTMUCLF under this Agreement.

(B) Payments by BTMUCLF to LRC . All payments of Cash Collateral withdrawn by BTMUCLF from the Deposit Accounts and required to returned by BTMUCLF to LRC hereunder shall be paid or delivered in immediately available funds by wire transfer to:

 

Bank Name:        
Bank Address:        
ABA # (Domestic):        
SWIFT ID (Inn):        
Account Name:        
Account Number:        
Bank Contact:        
       
       
Reference        
       

or at such other place and in such other manner as LRC may designate in a notice sent to BTMUCLF. Time is of the essence as to all such payments by BTMUCLF to LRC.

(C) Cumulative Rights, etc. Except as herein expressly provided to the contrary, the rights, powers and remedies of BTMUCLF under this Agreement shall be in addition to all rights, powers and remedies given to them by virtue of any Applicable Law, any other Operative Document or any other agreement, all of which rights, powers, and remedies shall be cumulative and may be exercised successively or concurrently without impairing their respective rights hereunder. LRC waives any right to require BTMUCLF to proceed against any Person or to exhaust any Collateral or other collateral or security or to pursue any remedy in BTMUCLF’s power.

 

19


(D) Survival of Agreements . All representations and warranties of LRC herein, and all covenants and agreements herein shall survive the execution and delivery of this Agreement, the execution and delivery of any other Operative Documents and the creation of the Secured Obligations and continue until terminated or released as provided herein.

(E) Other Liable Party . Neither this Agreement nor the exercise by BTMUCLF or the failure of BTMUCLF to exercise any right, power or remedy conferred herein or by law shall be construed as relieving LRC or any Other Liable Party from liability on the Secured Obligations or any deficiency thereon. This Agreement shall continue irrespective of the fact that the liability of any Other Liable Party may have ceased or irrespective of the validity or enforceability of any other agreement evidencing or securing the Secured Obligations to which LRC or any Other Liable Party may be a party, and notwithstanding the reorganization, death, incapacity or bankruptcy of any Other Liable Party, or any other event or proceeding affecting any Other Liable Party.

(F) Termination . Following the Base Term Expiration Date, upon indefeasible satisfaction in full of all Secured Obligations (other than contingent indemnity obligations for which no Claim has been made or are not due and payable) and upon written request for the termination of this Agreement delivered by LRC to BTMUCLF, BTMUCLF will execute and deliver, at LRC’s expense, an acknowledgment that this Agreement and the pledge and security interest created hereby are terminated, whereupon all rights to any remaining Collateral that has not been applied against Secured Obligations in accordance with this Agreement shall revert to LRC.

[Signature pages to follow]

 

20


IN WITNESS WHEREOF, this Agreement is executed to be effective as of the date first written above.

 

BTMU CAPITAL LEASING & FINANCE, INC.,
a Delaware corporation
By:  

/s/ Michael D. Doyle

Name:   Michael D. Doyle
Title:   President


LAM RESEARCH CORPORATION,
a Delaware Corporation
By:  

/s/ Odette Go

Name:   Odette Go
Title:   Treasurer


Exhibit A

TO PLEDGE AGREEMENT

DEPOSIT AGREEMENT

(FREMONT 1)

Dated as of December 31, 2013

The Bank of Tokyo-Mitsubishi UFJ, Ltd.

Global Markets Division for the Americas

1251 Avenues of the Americas

New York, New York 10020-1104

Dear Ladies and Gentlemen:

LAM Research Corporation, a Delaware corporation (“ LRC ”), refers to that certain Pledge Agreement (Fremont 1), dated as of December 31, 2013 (as amended or otherwise modified from time to time, the “Pledge Agreement” ), between BTMU Capital Leasing & Finance, Inc. (“ BTMUCLF ”) and LRC. All capitalized terms used herein and not otherwise defined herein shall have the same meanings herein as set forth in the Pledge Agreement. All terms used in this Agreement which are defined in the UCC and not otherwise defined herein shall have the same meanings herein as set forth therein, except where the context otherwise requires.

This Deposit Agreement (this “ Agreement ”), is among The Bank of Tokyo-Mitsubishi UFJ, Ltd. (“ Deposit Taker ”), LRC and BTMUCLF and shall serve as instructions regarding the following deposit account established by LRC at the Deposit Taker (the “ Deposit Account ”):

 

Account

Type

  

Account

Office

    

Account/IMMS/WSS

Numbers

       

 

  

 

    

 

LRC has delivered to Deposit Taker for deposit initially in such Deposit Account, which may not necessarily bear any special title or which may be entitled: “LAM RESEARCH CORPORATION COLLATERAL ACCOUNT FOR THE BENEFIT OF BTMU CAPITAL LEASING & FINANCE, INC.” or such other title as may be acceptable to Deposit Taker the sum of U.S. $22,630,869.82 in immediately available funds and which may thereafter be held in (but are not necessarily limited to) the form of one or more time deposits, certificates of deposit, other deposits or instruments of any type which at all times shall be under the


dominion and control of the Deposit Taker (such funds, whether now or at any time hereafter on deposit with or payable or withdrawable from the Deposit Taker (whether from the Deposit Account or any other deposit account, or any time deposit, certificate of deposit, or any other deposit or instrument of any type)), together with any amounts or accruals subsequently added to or earned, including interest, by such funds and all additional funds hereafter deposited into the Deposit Account hereunder or otherwise or given in substitution for such funds, being referred to herein as the “ Deposited Funds ”). Any such Deposited Funds and any funds or deposits which at any time derive from, consist of or represent Deposited Funds (including, but not limited to, time deposits, certificates of deposit, other deposits or instruments of any type), all proceeds, income and profits thereon and therefrom, and the Deposit Account and any deposit account in which any of the foregoing is deposited or held, and all of LRC’s rights and interests therein and claims against Deposit Taker with respect thereto, are collectively referred to herein as, the “ Cash Collateral ”. Without limiting any of Deposit Taker’s other rights or remedies Deposit Taker shall have all the rights and remedies of a secured party under the Uniform Commercial Code and all other applicable law with respect to the Cash Collateral and each such deposit account, all of which LRC acknowledges is to be deemed a “deposit account” defined by the Uniform Commercial Code. LRC understands that Deposit Taker may combine the Deposited Funds and Cash Collateral with other funds and will not be required to keep them separate and identifiable and that the Deposited Funds and Cash Collateral may be invested, reinvested, held or otherwise utilized by the Deposit Taker without any direction of the Parties. If such commingling occurs, Deposit Taker may consider the Deposited Funds to consist at any time of any and all funds in any relevant account up to the amount required to be held by Deposit Taker pursuant hereto.

1. Lien . As security for immediate payment and performance when due of all of the Secured Obligations as defined in the Pledge Agreement owing by LRC, whensoever arising, whether now existing or hereafter incurred, of every kind and character, including, without limitation, arising or otherwise existing under or with respect to the Amended and Restated Lease Agreement (Fremont 1), dated as of December 31, 2013 (as amended or otherwise modified from time to time, the “Lease Agreement” ), between BTMUCLF and LRC and the Operative Documents (except with respect to the Other Lease Documents) (all such obligations, liabilities and indebtedness being referred to herein collectively as the “Secured Obligations” ), LRC hereby pledges and assigns to BTMUCLF and grants to BTMUCLF a continuing first priority security interest in the following (the “ Collateral ”): (i) the Deposit Account, (ii) the Cash Collateral, (iii) all Deposited Funds, (iv) any and all accounts to which the Deposited Funds or the proceeds thereof are credited, (v) all amounts, money and other property standing to the credit of any such accounts, together with any and all documents evidencing or constituting such amounts, money and other property, (vi) all instruments, investment property and the like in which such property is from time to time invested or reinvested and all interest, distributions, other income and the like payable with respect thereto, and (vii) all replacements, renewals, substitutions, products, profits and proceeds of the foregoing in whatever form. The parties hereto agree that this Agreement complies with Section 9-104(a)(2) of the New York Uniform Commercial Code. So long as this Agreement remains in full force and effect, LRC shall have no right to be paid or to draw upon, transfer or otherwise dispose of any of the Cash Collateral, and Deposit Taker shall

 

2


have exclusive dominion and control of all Cash Collateral. Deposit Taker has and shall have “control”, as contemplated by Article 9 of the Uniform Commercial Code, including Section 9-104 thereof, of the Deposit Account, the Deposited Funds, the Cash Collateral and of any deposit account in which any Cash Collateral is deposited.

2. Duties . Deposit Taker agrees to take such action with respect to the Deposit Account as shall from time to time be specified in any writing purportedly from BTMUCLF as provided herein. LRC and BTMUCLF agree that: (a) Deposit Taker has no duty to monitor the balance of the Deposit Account; (b) BTMUCLF may at any time make withdrawals from the Deposit Account and take any and all actions with respect to the Deposit Account, and Deposit Taker is hereby authorized to honor any instructions with respect to the Deposit Account (including withdrawals therefrom) which purport to be from BTMUCLF (in each case without notifying or obtaining the consent of LRC); (c) Deposit Taker may, without further inquiry, rely on and act in accordance with any instructions it receives from (or which purport to be from) BTMUCLF, notwithstanding any conflicting or contrary instructions it may receive from LRC, and Deposit Taker shall have no liability to BTMUCLF, LRC or any other person in relying on and acting in accordance with any such instructions; (d) Deposit Taker shall have no responsibility to inquire as to the form, execution, sufficiency or validity of any notice or instructions delivered to it hereunder, nor to inquire as to the identity, authority or rights of the person or persons executing or delivering the same, and (e) Deposit Taker shall have a reasonable period of time within which to act in accordance with any notice or instructions from BTMUCLF with respect to the Deposit Account. Deposit Taker is hereby authorized immediately, and without demand upon or notice to us or other formality, to take direction from BTMUCLF acting in accordance with the terms and conditions of the Pledge Agreement to (i) withdraw and deliver any and all Cash Collateral and Deposited Funds to LRC, (ii) withdraw and apply any and all Cash Collateral and Deposited Funds to reduce or satisfy any and all Secured Obligations in any order and first toward any expenses Deposit Taker incurs in Deposit Taker’s discretion, as and when they arise or are due, without resort to us, any other collateral or any other obligor, or (iii) withdraw and return Cash Collateral and Deposited Funds to LRC.

3. Interest on the Deposit Account . Deposit Taker will have no obligation to pay any interest on the Deposit Account except as follows: on each Payment Date accrued interest on each Deposit Account maintained by Deposit taker will be paid by wire transfer to the LRC for the period (the “Interest Period” ) since the preceding Payment Date (or if there was no preceding Payment Date, since the Base Term Commencement Date) equal to the product of:

 

    the Deposited Funds on deposit with the Deposit Taker on the first day of such Interest Period, times

 

    LIBOR Rate less 0.125% (but in no event less than zero) for such Interest Period, times

 

    the number of days in such Interest Period, divided by;

 

    three hundred sixty.

 

3


As used in this Section 3, capitalized terms defined in the Participation Agreement are intended to have the respective meanings assigned to them in the Participation Agreement.

All payments of interest by Deposit Taker hereunder to LRC hereunder shall be paid or delivered in immediately available funds by wire transfer to:

 

Bank Name:        
Bank Address:        
ABA # (Domestic):        
SWIFT ID (Inn):        
Account Name:        
Account Number:        
Bank Contact:        
       
       
Reference        

or at such other place and in such other manner as LRC may designate in a notice sent to the Deposit Taker. Time is of the essence as to all such payments by Deposit Taker to LRC.

4. Remedies . LRC agrees that, at any time after an Event of Default has occurred or any Secured Obligation arises or comes due, Deposit Taker may, without notice or demand (all of which LRC hereby waives), to take direction from BTMUCLF acting in its sole discretion to realize upon and apply all or any part of the Cash Collateral to the payment of all or any part of the Secured Obligations, in such order and manner as BTMUCLF may elect and Deposit Taker is authorized to take direction from BTMUCLF acting in its sole discretion to break any time deposit or certificate deposit prior to its stated maturity and for which LRC shall have responsibility for any loss of interest or early withdrawal penalties resulting therefrom. BTMUCLF shall not be required to pursue any other right or remedy against us, or any other person liable for any part of the Secured Obligations, or enforce its security interest in or liens on any other property securing the Secured Obligations, prior to enforcing Deposit Taker’s rights against the Cash Collateral. Without limiting the foregoing, Deposit Taker is hereby authorized immediately, and without demand upon or notice to us or other formality, to take direction from BTMUCLF acting in its sole discretion on and during the continuance of an Event of Default (as such term is defined in the Pledge Agreement), apply and setoff against the Cash Collateral and the Deposited Funds the aggregate amount of all principal of, interest on and other amounts payable with respect to all Secured Obligations existing or payable as of such date, whether or not then due.

5. Representations, Warranties and Covenants . LRC hereby represents, warrants and covenants to Deposit Taker and BTMUCLF that: (i) the Collateral is and will be owned by us free and clear of all claims, liens, security interests, pledges and encumbrances of any kind, except in Deposit Taker’s favor; (ii) LRC is a corporation, duly organized and validly existing in good standing under the laws of State of Delaware, and have the right and power to execute, deliver and perform this Agreement, and to pledge, assign and grant a security interest in the Collateral in accordance herewith; (iii) this Agreement has been duly authorized, executed and delivered by LRC (and those individuals who have signed on its

 

4


behalf have the authority to do so consistent with resolutions on file in Deposit Taker’s offices) and constitutes its legal, valid, binding and enforceable obligation; (iv) Deposit Taker has and will continue at all times to have a first priority perfected and enforceable lien and security interest in the Collateral, subject to no other liens, security interests or encumbrances; (v) LRC shall not take any action or otherwise make any attempt to draw upon, transfer or otherwise dispose of the Collateral or permit the amount of Collateral to decrease at any time; and (vi) LRC shall from time to time at Deposit Taker’s request, execute, deliver, acknowledge, file and record such agreements, documents, statements and certificates (including, without limitation, Uniform Commercial Code financing statements), and do such acts and things as are necessary or appropriate to effectuate the purposes of this Agreement. LRC hereby authorizes Deposit Taker to file any Uniform Commercial Code financing statements, amendments thereto or continuations thereof, and any other appropriate security documents or instruments and to give any notices necessary or desirable to perfect any lien or security interest granted hereby, all without the signature of the LRC or to execute such items as attorney-in-fact for the LRC, as may be necessary to further the purposes described herein. Deposit Taker shall at all times have the exclusive right to hold and possess any certificates, instruments or documents included in the Collateral. Should LRC at any time receive any such certificates, instruments or documents it shall hold the same in trust for, and immediately deliver them to, Deposit Taker. Any breach of any representation, warranty, covenant or agreement made by us herein or elsewhere shall be an “ Event of Default ”. An “ Event of Default ” shall also be as defined in the Pledge Agreement.

6. Information . Deposit Taker shall provide BTMUCLF with such information with respect to the Deposit Account and all items (and proceeds thereof) deposited in the Deposit Account as BTMUCLF may from time to time reasonably request, and LRC hereby consents to such information being provided to BTMUCLF and agrees to pay all expenses in connection therewith.

7. Exculpation; Indemnity . Deposit Taker undertakes to perform only such duties as are expressly set forth herein. Notwithstanding any other provisions of this Agreement, the parties hereby agree that Deposit Taker shall not be liable for any action taken by it in accordance with this Agreement, including, without limitation, any action so taken at BTMUCLF’s request or direction, except direct damages attributable to the Deposit Taker’s gross negligence or willful misconduct. In no event shall Deposit Taker be liable for any (i) losses or delays resulting from acts of God, war, computer malfunction, interruption of communication facilities, labor difficulties or other causes beyond Deposit Taker’s reasonable control, or (ii) for indirect, special, punitive or consequential damages. LRC agrees to indemnify and hold Deposit Taker harmless from and against all costs, damages, claims, judgments, reasonable attorneys’ fees, expenses, obligations and liabilities of every kind and nature (collectively, “ Losses ”) which Deposit Taker may incur, sustain or be required to pay (other than those attributable to Deposit Taker’s gross negligence or willful misconduct) in connection with or arising out of this Agreement or the Deposit Account (including without limitation, the amount of any overdraft created in the Deposit Account resulting from a Chargeback, and to pay to Deposit Taker on demand the amount of all such Losses. Nothing in this Section, and no indemnification of Deposit Taker hereunder, shall affect in any way the indemnification obligations of LRC to BTMUCLF under the Pledge Agreement or other

 

5


Operative Documents. The provisions of this Section shall survive termination of this Agreement.

8. Irrevocable Agreement . LRC acknowledges that the agreements made by it and the authorizations granted by it herein are irrevocable and that the authorizations granted in Section 2 are powers coupled with an interest.

9. Set-off . Deposit Taker waives all of its existing and future rights of set-off and banker’s liens against the Deposit Account and all items (and proceeds thereof) that come into possession of Deposit Taker in connection with the Deposit Account.

10. Miscellaneous . This Agreement is binding upon the parties hereto and their respective successors and assigns (including any trustee of LRC appointed or elected in any action under the Bankruptcy Code) and shall inure to their benefit. Neither LRC nor BTMUCLF may assign their respective rights hereunder unless the prior written consent of the Deposit Taker is obtained. Neither this Agreement nor any provision hereof may be changed, amended, modified or waived, except by an instrument in writing signed by the parties hereto. Any provision of this Agreement that may prove unenforceable under any law or regulation shall not affect the validity of any other provision hereof. This Agreement shall be governed by the laws of the State of New York, without giving effect to the conflicts of laws provisions of such State (including, without limitation, Section 5-1401 of the New York General Secured Obligations Law). LRC hereby irrevocably submits to the jurisdiction of the courts of the U.S. Federal and New York State courts sitting in the Borough of Manhattan, New York and waives any objection to or based upon personal jurisdiction, venue, inconvenient forum or service of process in connection with any action or proceeding arising out of or in connection with this Agreement. LRC hereby irrevocably consents to service of process by first class or certified mail, or recognized courier for which a receipt is available, sent to the address shown in Deposit Taker’s records. This Agreement may be executed in any number of counterparts which together shall constitute one and the same instrument. LRC HEREBY IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE PLEDGE AGREEMENT OR ANY RELATED TRANSACTION.

11. Termination and Resignation . This Agreement may be terminated by agreement of BTMUCLF and LRC upon fifteen (15) days’ prior written notice to Deposit Taker; provided, however, that this Agreement shall terminate immediately upon notice from BTMUCLF that all of LRC’s obligations secured by the Pledge Agreement are satisfied. Deposit Taker may, at any time upon thirty (30) days’ prior written notice to BTMUCLF and LRC, terminate this Agreement and close the Deposit Account; provided, however, that a substitute deposit taker has been appointed for BTMUCLF or Participant (in its capacity as a Participant) under and as described in the Pledge Agreement. Upon termination of this Agreement any funds in the Deposit Account shall be subject to the direction of BTMUCLF, including any direction given by BTMUCLF that such funds be wired to another “Deposit Taker” designated for BTMUCLF or such Participant under and as defined in the Pledge Agreement.

 

6


12. Notices . Unless otherwise specifically provided herein, any notice or other communication required or permitted to be given shall be in writing addressed to the respective party as set forth below and may be personally served, telecopied or sent by overnight courier service and shall be deemed to have been given: (a) if delivered in person, when delivered; (b) if delivered by telecopy, on the date of transmission if transmitted on a Business Day before 4:00 P.M. (New York time) (but only if such telecopied document is also delivered by another method permitted by this Agreement by the next banking business day), or, if not, on the next succeeding Business Day; or (c) if delivered by reputable overnight courier, the banking business day on which such delivery is made by such courier.

Notices shall be addressed as follows:

 

BTMUCLF:    BTMU Capital Leasing & Finance, Inc.
   111 Huntington Avenue
   Boston, Massachusetts 02199
   Attention: Portfolio Servicing
   Telecopy:                             
Deposit Taker:    The Bank of Tokyo-Mitsubishi UFJ, Ltd.
   Global Markets Division for the Americas
   1251 Avenues of the Americas
   New York, New York 10020-1104
   Attn: Charles Catalano, Director – Institutional Sales Department
   Telecopy:                             
   Email:                                         
LRC:    Lam Research Corporation
  

4300 Cushing Parkway

Fremont, California 94538

   Attention: Odette Go, Treasurer
   Telecopy:                             
   Email:                                                      

or in any case, to such other address as the party addressed shall have previously designated by written notice to the serving party, given in accordance with this Section.

[signature page follows.]

 

7


Please countersign below to indicate your acceptance of our agreement herein.

 

Very truly yours,

LAM RESEARCH CORPORATION,

a Delaware corporation

By:  

 

Name:  

 

Title:  

 

 

ACCEPTED AND AGREED TO as of this     day of                 ,             
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
By:  

 

Name:  

 

Title:  

 

ACKNOWLEDGED AND AGREED TO as of this     day of                 ,         
BTMU CAPITAL LEASING & FINANCE, INC.,
a Delaware corporation

By:

Name:

Title:


Exhibit B

TO PLEDGE AGREEMENT

NOTICE OF LRC’S REQUIREMENT OF

DIRECT PAYMENT TO BTMUCLF

BTMU Capital Leasing & Finance, Inc.

111 Huntington Avenue

Boston, Massachusetts 02199

Attention: Portfolio Servicing

 

  Re: Pledge Agreement (Fremont 1) dated as of December 31, 2013 between Lam Research Corporation and BTMU Capital Leasing & Finance, Inc.

Gentlemen:

Capitalized terms used in this letter are intended to have the meanings assigned to them in the Pledge Agreement (Fremont 1]) referenced above (the “Pledge Agreement” ). This letter constitutes notice to you, as secured party under the Pledge Agreement, that pursuant to subparagraph 5(B) of the Pledge Agreement, LRC requires you to withdraw from the Deposit Account and to retain, as a payment from LRC required by Articles XX, XXI or XXII of the Lease, the following amount:

Dollars                      ($        )

on the following date (which, LRC acknowledges, must be the Base Term Expiration Date):

LRC acknowledges that its right to require such withdrawal is subject to the condition that LRC must give this notice to you at least ten days prior to the date of required withdrawal and payment specified above, and also to the condition that no Event of Default (under and as defined in the Pledge Agreement or as defined in the Lease referenced therein) has occurred and is continuing.

Please remember that the express terms of the Pledge Agreement allow the Deposit Takers to require notice of withdrawal at least seven days before Cash Collateral is to be withdrawn from the Deposit Accounts. Accordingly, you must notify the Deposit Takers seven days prior to the withdrawal of Cash Collateral required by this notice.

 

Lam Research Corporation
By:  

 

Name:  

 

Title:  

 

Exhibit 10.21

 

 

AMENDED AND RESTATED LEASE AGREEMENT

(Fremont 3)

D ATED AS OF D ECEMBER  31, 2013

B ETWEEN

BTMU CAPITAL LEASING & FINANCE, INC.,

AS L ESSOR ,

A ND

LAM RESEARCH CORPORATION,

AS L ESSEE

 

 


TABLE OF CONTENTS

 

          Page  

ARTICLE I DEFINITIONS

     1   

ARTICLE II LEASE OF LEASED PROPERTY; LEASE TERM

     2   

SECTION 2.1.

  

Acceptance and Lease.

     2   

SECTION 2.2.

  

Lease Term.

     2   

ARTICLE III TAXES

     2   

SECTION 3.1.

  

Impositions.

     2   

SECTION 3.2.

  

Contests.

     3   

ARTICLE IV RENT

     3   

SECTION 4.1.

  

Rental Payments.

     3   

SECTION 4.2.

  

Supplemental Rent.

     3   

SECTION 4.3.

  

Method and Amount of Payment.

     3   

SECTION 4.4.

  

Late Payment.

     3   

ARTICLE V NET LEASE

     4   

ARTICLE VI UTILITY CHARGES

     5   

ARTICLE VII CONDITION AND USE OF LEASED PROPERTY

     6   

ARTICLE VIII LIENS; EASEMENTS

     6   

SECTION 8.1.

  

Liens.

     6   

SECTION 8.2.

  

Easements.

     7   

ARTICLE IX MAINTENANCE AND REPAIR; ALTERATIONS AND ADDITIONS

     8   

SECTION 9.1.

  

Maintenance and Repair; Compliance With Law.

     8   

SECTION 9.2.

  

Improvements and Alterations.

     8   

SECTION 9.3.

  

Alterations Subject to Lease.

     9   

SECTION 9.4.

  

Maintenance and Repair Reports.

     10   

SECTION 9.5.

  

Permitted Contests.

     10   

ARTICLE X USE

     11   

SECTION 10.1.

  

Use.

     11   

SECTION 10.2.

  

Trade Compliance.

     11   

ARTICLE XI INSURANCE

     11   

SECTION 11.1.

  

Required Coverages.

     11   

SECTION 11.2.

  

Delivery of Insurance Certificates.

     13   

 

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TABLE OF CONTENTS

(continued)

 

          Page  

ARTICLE XII ASSIGNMENT AND SUBLEASING

     14   

ARTICLE XIII LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE

     15   

SECTION 13.1.

  

Event of Loss.

     15   

SECTION 13.2.

  

Condemnation.

     16   

SECTION 13.3.

  

Casualty.

     16   

SECTION 13.4.

  

Proceeds.

     17   

SECTION 13.5.

  

Negotiations.

     17   

SECTION 13.6.

  

No Rent Abatement.

     17   

ARTICLE XIV CERTAIN DUTIES AND RESPONSIBILITIES

     18   

ARTICLE XV INSPECTION

     18   

ARTICLE XVI ENVIRONMENTAL MATTERS

     18   

SECTION 16.1.

  

Environmental Matters.

     18   

SECTION 16.2.

  

Notice of Environmental Matters.

     19   

ARTICLE XVII EVENTS OF DEFAULT

     19   

ARTICLE XVIII ENFORCEMENT

     22   

SECTION 18.1.

  

Remedies.

     22   

SECTION 18.2.

  

Proceeds of Sale; Deficiency.

     26   

SECTION 18.3.

  

Waiver of Certain Rights.

     26   

SECTION 18.4.

  

Remedies Cumulative; No Waiver; Consents.

     27   

ARTICLE XIX RIGHT TO CURE

     27   

ARTICLE XX EARLY TERMINATION OPTION; OBLIGATION TO PURCHASE; MID-TERM REMARKETING OPTION

     27   

SECTION 20.1.

  

Early Termination Option.

     27   

SECTION 20.2.

  

Required Purchase.

     28   

SECTION 20.3.

  

Mid-term Remarketing Option.

     28   

ARTICLE XXI END OF TERM OPTIONS

     29   

SECTION 21.1.

  

End of Term Options.

     29   

SECTION 21.2.

  

Election of Options.

     29   

ARTICLE XXII RETURN OPTION

     30   

SECTION 22.1.

  

Return Option Procedures.

     30   

 

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TABLE OF CONTENTS

(continued)

 

          Page  

SECTION 22.2.

  

Sale.

     31   

SECTION 22.3.

  

Application of Sale Proceeds and Recourse Payments.

     32   

SECTION 22.4.

  

Failure to Sell Leased Property.

     33   

SECTION 22.5.

  

Surrender and Return.

     36   

ARTICLE XXIII MISCELLANEOUS

     37   

SECTION 23.1.

  

Binding Effect; Successors and Assigns; Survival.

     37   

SECTION 23.2.

  

Severability.

     37   

SECTION 23.3.

  

Notices.

     37   

SECTION 23.4.

  

Amendment; Complete Agreements.

     37   

SECTION 23.5.

  

Headings.

     38   

SECTION 23.6.

  

Original Executed Counterpart.

     38   

SECTION 23.7.

  

Governing Law.

     38   

SECTION 23.8.

  

No Joint Venture.

     38   

SECTION 23.9.

  

No Accord and Satisfaction.

     38   

SECTION 23.10.

  

Survival.

     39   

SECTION 23.11.

  

Transfer of Leased Property.

     39   

SECTION 23.12.

  

Enforcement of Certain Warranties.

     39   

SECTION 23.13.

  

Security Interest in Funds.

     40   

SECTION 23.14.

  

Submission to Jurisdiction.

     40   

SECTION 23.15.

  

Jury Trial.

     41   

SECTION 23.16.

  

Payments.

     41   

EXHIBITS

 

EXHIBIT A   

Description of Site

 

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AMENDED AND RESTATED LEASE AGREEMENT

(Fremont 3)

THIS AMENDED AND RESTATED LEASE AGREEMENT (FREMONT 3), dated as of December 31, 2013 (as amended, supplemented, or otherwise modified from time to time (this “ Lease ”), is between BTMU CAPITAL LEASING & FINANCE, INC., a Delaware corporation, as Lessor (the “ Lessor ”) and whose principal offices are located at 111 Huntington Avenue, Boston, Massachusetts 02199, and LAM RESEARCH CORPORATION, a Delaware corporation, as Lessee (the “ Lessee ) and whose principal offices are located at 4300 Cushing Parkway, Fremont, California 95438.

WITNESSETH:

Lessee and Lessor are entering into this Lease and the Operative Documents.

A. Subject to the terms and conditions set forth in the Operative Documents, on the Closing Date, Lessor has agreed to acquire the land described on Exhibit A attached hereto (the “ Site ”) and the existing improvements thereon (the “ Existing Improvements ”) and Personal Property used thereon (collectively, the “ Leased Property ”) which Leased Property is subject to that certain Lease Agreement (Fremont/Building #2), dated as of December 21, 2007 (“ Existing Lease Fremont 3 ”), between BNP Paribas Leasing Corporation, a Delaware corporation (the “ Existing Lessor ”), and the Lessee.

B. Existing Lessor has assigned all of its right, title and interest in and to the Existing Lease Fremont 3 and the Leased Property to Lessor.

C. The Lessee and the Lessor desire to continue to lease the Leased Property and to amend and restate the Existing Lease in accordance with the terms and conditions set forth below.

NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, hereby agree that the Existing Lease is hereby amended and restated in its entirety as follows:

ARTICLE I

DEFINITIONS

For all purposes hereof, the capitalized terms used herein and not otherwise defined shall have the meanings assigned thereto in Appendix I to that certain Participation Agreement dated as of even date herewith, between the Lessee and the Lessor (as the same may be amended, modified, restated or supplemented from time to time, the “ Participation Agreement ”).


ARTICLE II

LEASE OF LEASED PROPERTY; LEASE TERM

SECTION 2.1. Acceptance and Lease.

The Lessor, subject to the satisfaction or waiver of the conditions set forth in Section 3.1 of the Participation Agreement, hereby agrees to lease all of the Leased Property (the location of which is more particularly described on Exhibit A hereto) to the Lessee hereunder and the Lessee hereby agrees, expressly for the direct benefit of the Lessor, to lease from the Lessor for the Lease Term, all of the Leased Property. Without limiting the generality of the foregoing, Lessee acknowledges that the leasehold estate conveyed by this Lease and Lessee’s rights hereunder are expressly made subject and subordinate to the terms and conditions of the matters listed in Schedule B to the Title Policy and all other Permitted Liens, and any other Liens not constituting Lessor Liens.

Subject to Articles XII and XVIII hereof, the Lessor will not lease nor otherwise make the Leased Property, in whole or in part, available to any Person other than the Lessee and its permitted successors, assigns and sublessees during the Lease Term, and (without derogating in any way from the Lessor’s rights under Article XV hereof) during the Lease Term the Lessee shall have unimpeded physical control of the Leased Property notwithstanding the Lessor’s rights to inspect the Leased Property under Article XV.

SECTION 2.2. Lease Term.

Unless earlier terminated, the term of this Lease for the Leased Property shall consist of a base lease term (the “ Base Term ” or the “ Lease Term ”) which shall commence on and including the Closing Date (such day, the “ Base Term Commencement Date ”) and ending on December 31, 2020.

ARTICLE III

TAXES

SECTION 3.1. Impositions.

During the Lease Term, Lessee agrees to pay prior to delinquency without penalty or interest all Taxes imposed upon or levied against the Leased Property or any part thereof or interest therein consistent with Section 7.2 of the Participation Agreement. The Site consists of one or more separate tax lots for real property tax assessment purposes. Any Tax relating to a fiscal period of any taxing Authority falling partially within and partially outside the Lease Term shall be apportioned and adjusted between Lessor and Lessee. Lessee covenants to furnish Lessor, upon Lessor’s request, within forty-five (45) days after the last date when any Tax must be paid by Lessee, official receipts of the appropriate taxing Authority or other proof reasonably satisfactory to Lessor evidencing the payment thereof.

 

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SECTION 3.2. Contests.

Lessee shall have the right to contest any Tax in accordance with Section 7.2(b) of the Participation Agreement.

ARTICLE IV

RENT

SECTION 4.1. Rental Payments.

Commencing on the first Payment Date following the Base Term Commencement Date, the Lessee shall pay to the Lessor Basic Rent, without offset or deduction, (i) on each Payment Date, (ii) on the Return Date, and (iii) on any date on which this Lease terminates or upon demand following an Event of Default pursuant to Article XVII.

SECTION 4.2. Supplemental Rent.

The Lessee shall pay to the Lessor, or to whomever shall be entitled thereto as expressly provided herein or in any other Operative Document (and the Lessor hereby directs the Lessee, on behalf of the Lessor, to so pay any such other Person), any and all Supplemental Rent promptly as the same shall become due and payable and, in the event of any failure on the part of the Lessee to pay any Supplemental Rent, the Lessor shall have all rights, powers and remedies provided for herein or by law or in equity or otherwise in the case of nonpayment of Basic Rent. Lessee hereby reaffirms that its obligation to pay Supplemental Rent shall include the payment of any and all Additional Costs. The expiration or other termination of the Lessee’s obligations to pay Basic Rent hereunder shall not limit or modify the obligations of the Lessee with respect to Supplemental Rent.

SECTION 4.3. Method and Amount of Payment.

Basic Rent and Supplemental Rent shall be paid by wire transfer by the Lessee to the Lessor (or, in the case of Supplemental Rent, to such Person as may be entitled thereto) at such place as the Lessor (or such other Person) shall specify in writing to the Lessee pursuant to Schedule II to the Participation Agreement. Each payment of Rent shall be made by the Lessee prior to 11:00 A.M. New York time (and payments made after such time shall be deemed to have been made on the next day) at the place of payment in funds consisting of Dollars which shall be immediately available on the scheduled date when such payment shall be due unless the scheduled date shall not be a Business Day, in which case such payment shall be due and made on the next succeeding Business Day. The provisions of the foregoing sentence of this Section 4.3 shall be applicable only to Basic Rent and to Supplemental Rent payable to, or on behalf of or for the account of, the Lessor and any other Indemnitee.

SECTION 4.4. Late Payment.

If any Basic Rent shall not be paid within three (3) Business Days of the due date applicable thereto, the Lessee shall pay to the Lessor, or if any Supplemental Rent payable to or on behalf or for the account of the Lessor or other Indemnitee is not paid when due, the Lessee

 

3


shall pay to whomever shall be entitled thereto, in each case as Supplemental Rent, interest at the Overdue Rate (to the maximum extent permitted by law) on such overdue amount from and including the due date thereof (without regard to any applicable grace period) to but excluding the Business Day of payment thereof.

ARTICLE V

NET LEASE

This Lease shall constitute a net lease and, notwithstanding any other provision of this Lease, it is intended that Basic Rent, Supplemental Rent, the Lease Balance and all other amounts due and payable under the Operative Documents shall be paid without counterclaim, setoff, deduction or defense of any kind and without abatement, suspension, deferment, diminution or reduction of any kind, and the Lessee’s obligation to pay all such amounts throughout the Lease Term is absolute and unconditional. The obligations and liabilities of the Lessee hereunder shall, to the fullest extent permitted by Applicable Laws, in no way be released, discharged or otherwise affected for any reason (other than the indefeasible payment or performance in full of such liability or obligation) including: (a) any defect in the condition, merchantability, design, construction, quality or fitness for use of the Leased Property or any portion thereof, or any failure of the Leased Property or any portion thereof to comply with all Applicable Laws including any inability to occupy or use the Leased Property or any portion thereof by reason of such non-compliance; (b) any damage to, abandonment, loss, contamination of or Release from or destruction of or any requisition or taking of the Leased Property or any portion thereof including eviction; (c) any restriction, prevention or curtailment of or interference with any use of the Leased Property or any portion thereof, including eviction; (d) any defect in title to or rights to the Leased Property or any portion thereof or any Lien on such title or rights or on the Leased Property or any portion thereof; (e) any change, waiver, extension, indulgence or other action or omission or breach in respect of any obligation or liability of or by the Lessor; (f) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceedings relating to the Lessee, the Lessor or any other Person, or any action taken with respect to this Lease by any trustee or receiver of the Lessee, the Lessor or any other Person, or by any court, in any such proceeding; (g) any claim that the Lessee has or might have against any Person, including the Lessor or any Indemnitee arising from any of the circumstances set forth in this sentence (but will not constitute a waiver of such claim); (h) any failure on the part of the Lessor to perform or comply with any of the terms of this Lease, any other Operative Document or of any other agreement whether or not related to the Overall Transaction; (i) any invalidity or unenforceability or disaffirmance against or by the Lessee of this Lease or any provision hereof or any of the other Operative Documents or any provision of any thereof; (j) the impossibility of performance by the Lessee, the Lessor or both; (k) any action by any court, administrative agency or other Authority; (l) the construction of any Alterations; (m) the failure of the Lessee to achieve any accounting or tax benefits or the characterization of the transaction intended by Section 2.12 of the Participation Agreement; or (n) any other occurrence whatsoever, whether similar or dissimilar to the foregoing, whether or not the Lessee shall have notice or knowledge of any of the foregoing. Except as specifically set forth in Article XIII or Section 20.1 of this Lease, this Lease shall be noncancellable by the Lessee for any reason whatsoever and the Lessee, to the fullest extent permitted by Applicable Laws, waives all rights now or hereafter conferred by statute or otherwise to quit, terminate or surrender this

 

4


Lease, or to any diminution, abatement or reduction of Rent payable by the Lessee hereunder. If for any reason whatsoever this Lease shall be terminated or amended in whole or in part by operation of law or otherwise, except as expressly provided in Article XIII or Section 20.1 of this Lease, the Lessee shall, unless prohibited by Applicable Laws, pay to the Lessor (or, in the case of Supplemental Rent, to whomever shall be entitled thereto) a compensation in an amount equal to each Rent payment (including the Lease Balance and any other amount due and payable under any Operative Documents) at the time and in the manner that such payment would have become due and payable under the terms of this Lease if it had not been terminated or amended in whole or in part. Each payment of Rent including any payment of the Lease Balance and Break Even Price made by the Lessee hereunder shall be final and, absent manifest error in the computation of the amount thereof, the Lessee shall not seek or have any right to recover all or any part of such payment from the Lessor or any party to any agreements related thereto for any reason whatsoever. Lessee assumes the sole responsibility for the condition, use, operation, maintenance, and management of the Leased Property and the Lessor shall have no responsibility in respect thereof and shall have no liability for damage to the Leased Property or the property relating thereto of the Lessee or any subtenant of the Lessee on any account or for any reason whatsoever. Without affecting the Lessee’s obligation to pay Basic Rent, Supplemental Rent, the Lease Balance and all other amounts due and payable under the Operative Documents or to perform its obligations under the Operative Documents, the Lessee may, notwithstanding any other provision of the Operative Documents (other than Section 8.11 of the Participation Agreement), seek damages of any kind or any other remedy at law or equity against the Lessor for such willful misconduct or gross negligence or negligence in the handling of funds or for a breach by the Lessor of its obligations under this Lease or the other Operative Documents.

ARTICLE VI

UTILITY CHARGES

During the Lease Term the Lessee shall pay or cause to be paid all development and improvement charges and all charges for electricity, power, gas, oil, water, telephone, sanitary sewer service and all other rents, utilities or public dues used in or on the Improvements or the Site during the Lease Term. Lessee shall be entitled to receive any credit or refund with respect to any utility charge or public dues paid by the Lessee and the amount of any credit or refund received by the Lessor on account of any utility charges paid by the Lessee, net of the costs and expenses reasonably incurred by the Lessor in obtaining such credit or refund, which amount shall be promptly paid over to the Lessee. All charges for utilities imposed or public dues with respect to the Improvements and the Site for a billing period during which this Lease expires or terminates (except pursuant to Article XX or Section 21.1(a), in which case the Lessee shall be solely responsible for all such charges) shall be adjusted and prorated on a daily basis between the Lessee and any purchaser of the Leased Property, and each party shall pay or reimburse the other for each party’s pro rata share thereof; provided, that in no event shall the Lessor have any liability therefor.

 

5


ARTICLE VII

CONDITION AND USE OF LEASED PROPERTY

LESSEE ACKNOWLEDGES AND AGREES THAT IT IS LEASING THE LEASED PROPERTY “AS IS” IN ITS PRESENT CONDITION, SUBJECT TO (A) ANY RIGHTS OF ANY PARTIES IN POSSESSION THEREOF OR OF THE SITE, (B) THE STATE OF THE TITLE THERETO OR TO THE SITE EXISTING AT THE TIME THE LESSOR ACQUIRED ITS INTEREST IN THE LEASED PROPERTY, (C) ANY STATE OF FACTS WHICH AN ACCURATE SURVEY OR PHYSICAL INSPECTION MIGHT SHOW (INCLUDING ANY SURVEY DELIVERED ON OR PRIOR TO THE CLOSING DATE), (D) ALL APPLICABLE LAWS, AND (E) ANY VIOLATIONS OF APPLICABLE LAWS WHICH MAY EXIST AT THE COMMENCEMENT OF THE LEASE TERM. LESSEE HAS EXAMINED THE LEASED PROPERTY AND (INSOFAR AS THE LESSOR IS CONCERNED) HAS FOUND THE SAME TO BE SATISFACTORY. WITHOUT LIMITING THE SPECIFIC REPRESENTATIONS AND WARRANTIES IN ARTICLE IV OF THE PARTICIPATION AGREEMENT, THE LESSOR HAS NOT MADE NOR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, NOR SHALL BE DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO THE TITLE TO THE LEASED PROPERTY OR THE SITE OR TO THE VALUE, MERCHANTABILITY, HABITABILITY, CONDITION, OR FITNESS FOR USE OF THE LEASED PROPERTY OR THE SITE, OR ANY PART THEREOF, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASED PROPERTY OR THE SITE, OR ANY PART THEREOF, AND THE LESSOR SHALL NOT BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR THE FAILURE OF THE LEASED PROPERTY OR ANY PORTION THEREOF, TO COMPLY WITH ANY APPLICABLE LAWS, except that the Lessor hereby represents and warrants that as of the date of this Lease, the Leased Property is free of Lessor Liens. The Lessee, having been afforded full opportunity to inspect the Leased Property, is satisfied with the results of its inspections and is entering into this Lease solely on the basis of the results of its own inspections, and all risks incident to the matters discussed in the preceding sentence, as between the Lessor, on the one hand, and the Lessee, on the other, are to be borne by the Lessee. The provisions of this Article VII have been negotiated, and, except to the extent otherwise expressly stated, the foregoing provisions are intended to be a complete exclusion and negation of any representations or warranties by the Lessor, express or implied, with respect to the Leased Property (or any interest therein) that may arise pursuant to any law now or hereafter in effect or otherwise.

ARTICLE VIII

LIENS; EASEMENTS

SECTION 8.1. Liens.

During the Lease Term and subject to Lessee’s right to engage in Permitted Contests in accordance with Section 9.5, the Lessee will not directly or indirectly create, incur, assume or suffer to exist any Lien (other than Permitted Liens) on or with respect to any portion of the Leased Property or any portion thereof or the Lessor’s interest therein. Lessee, at its own expense, will promptly pay, satisfy and otherwise take such actions as may be necessary to keep

 

6


the Leased Property free and clear of, and duly to discharge, eliminate or bond in a manner reasonably satisfactory to the Lessor, any such Lien (other than Permitted Liens) if the same shall arise at any time.

SECTION 8.2. Easements.

Notwithstanding Section 8.1, at the request of Lessee, Lessor shall, from time to time during the Lease Term and upon reasonable advance written notice from Lessee and receipt of the materials specified below, consent to and join in any (i) grant of easements, licenses, rights of way and other rights in the nature of easements, including utility easements which in each case facilitate Lessee’s use, development and operation of the Leased Property, (ii) release or termination of easements, licenses, rights of way or other rights in the nature of easements which releases and terminations are for the benefit of the Site or the Improvements or any portion thereof, (iii) dedication or transfer of portions of the Site, not improved with a building, for road, highway or other public purposes, provided the same are for the benefit of the Site or Improvements, (iv) execution of agreements for ingress and egress and amendments to any covenants and restrictions affecting the Site or Improvements or any portion thereof, and (v) request to any Authority for platting or subdivision or replatting or resubdivision approval with respect to the Site or any portion thereof or any parcel of land of which the Site or any portion thereof forms a part or a request for any variance from zoning or other governmental requirements, provided that :

(a) any such action shall be at the sole cost and expense of Lessee and Lessee shall pay all reasonable out-of-pocket costs of the Lessor in connection therewith (including the reasonable fees of attorneys, architects, engineers, planners, appraisers and other professionals reasonably retained by the Lessor in connection with any such action);

(b) Lessee shall have delivered to the Lessor a certificate of a Responsible Officer of Lessee stating that:

(i) such action will not cause the Leased Property, the Site or the Improvements or any portion thereof to fail to comply in any material respect with the provisions of the Lease or any other Operative Documents, or in any material respect with Applicable Laws; and

(ii) such action will not materially reduce the Fair Market Value, utility or useful life of the Leased Property, the Site or the Improvements or Lessor’s interest therein;

(c) in the case of any release or conveyance, if the Lessor so reasonably requests, the Lessee will cause to be issued and delivered to the Lessor by the Title Insurance Company endorsements to the Title Policies (to the extent available) pursuant to which the Title Insurance Company agrees that its liability for the payment of any loss or damage under the terms and provisions of the Title Policies will not be affected by reason of the fact that a portion of the real property referred to in Schedule A of the Title Policies has been released or conveyed by Lessor; and

(d) there shall be no abatement of Rent as a result thereof.

 

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ARTICLE IX

MAINTENANCE AND REPAIR; ALTERATIONS AND ADDITIONS

SECTION 9.1. Maintenance and Repair; Compliance With Law.

At all times during the Lease Term, the Lessee shall (a) maintain the Improvements and the Site in good operating condition and repair, subject to ordinary wear and tear, and in any event in a manner consistent with other similar facilities or buildings owned or leased by the Lessee and its Subsidiaries; (b) subject to Section 9.5, maintain the Improvements and the Site in accordance with all Applicable Laws (including all Environmental Laws) in all material respects, whether or not such maintenance requires structural modifications; (c) maintain the Improvements and the Site in such a way that the Improvements and the Site shall not constitute a danger to persons or things; (d) comply in all material respects with the Insurance Requirements which are in effect at any time with respect to the Leased Property or any part thereof; (e) use the Improvements and the Site only in accordance with Article X; (f) make all necessary or appropriate repairs, replacements and renewals of the Improvements and the Site or any part thereof which may be required to keep the Improvements and the Site in the condition required by the preceding clauses (a) through (e), whether interior or exterior, structural or nonstructural, ordinary or extraordinary, foreseen or unforeseen, and including repairs, replacements and renewals that would constitute capital expenditures under GAAP if incurred by an owner of property; and (g) procure, maintain and comply in all material respects with all licenses, permits, orders, approvals, consents and other authorizations required for the construction, use, maintenance and operation of the Improvements and the Site and shall procure the valid subdivision of the Site from Site 3E under the California Subdivision Map Act upon request by and with the cooperation of the Lessor in connection with a sale, conveyance or transfer of or proposed sale, conveyance or transfer of the Site separate from Site 3E in both cases as contemplated under the Operative Documents which may include the plotting of a lot line between such Sites to the extent necessary for such compliance, and (h) cause Lessor to be in compliance with the Shared Parking Agreement. The Lessee waives any right that it may now have or hereafter acquire to (x) require the Lessor to maintain, repair, replace, alter, remove or rebuild all or any part of the Improvements or the Site or (y) make repairs at the expense of the Lessor pursuant to any Applicable Laws or other agreements.

SECTION 9.2. Improvements and Alterations.

(a) The Lessee, at the Lessee’s own cost and expense, (i) shall make alterations, renovations, repairs, improvements and additions to the Leased Property or any part thereof and substitutions and replacements therefor (collectively, “ Alterations ”) which are (A) necessary to repair or maintain the Improvements or the Site in the condition required by Section 9.1 or (B) necessary or advisable to restore the Improvements and the Site to its condition existing prior to a Casualty or Condemnation to the extent required pursuant to Article XIII, and (ii) so long as no Material Default or Event of Default has occurred and is continuing, may undertake Alterations on the Leased Property so long as such Alterations comply in all material respects with Applicable Laws and are consistent and comply with Section 9.1 and subsection (b) of this Section 9.2.

 

8


(b) The making of any Alterations pursuant to subsection (a)(i) above of this Section 9.2 must be in compliance with the following requirements:

The Lessee shall not make any Alterations in violation of the terms of any restriction, easement, condition, covenant or other similar matter affecting title to or binding on the Improvements or the Site.

(i) No Alterations shall be undertaken until the Lessee shall have procured and paid for, so far as the same may be required from time to time, all permits and authorizations relating to such Alterations of all municipal and other Authorities having jurisdiction over the Improvements or the Site. Lessor, at the Lessee’s expense, shall join in the application for any such permit or authorization and execute and deliver any document in connection therewith, whenever such joinder is necessary or advisable; provided that, however, such joinder shall not constitute or be deemed to constitute, any assumption or responsibility or liability whatsoever.

(ii) The Alterations shall be completed in a good and workmanlike manner and in compliance in all material respects with all Applicable Laws then in effect and with the Insurance Requirements.

(iii) All Alterations shall, when completed, be of such a character as to not materially diminish (A) the utility of the Improvements as a corporate office complex including a corporate office building and any uses ancillary thereto, (B) the then current Fair Market Value as determined by reference to the Appraisal, or (C) the Fair Market Value as determined by reference to the Appraisal as of the scheduled expiration date of the Lease Term.

(iv) The Lessee shall have made adequate arrangements for payment of the cost of all Alterations when due so that the Improvements and the Site shall at all times be free of Liens for labor and materials supplied or claimed to have been supplied to the Improvements or the Site, other than Permitted Liens; provided, that the Lessee shall have the right to engage in Permitted Contests in accordance with Section 9.5.

(v) The Alterations must be located solely on the Site.

SECTION 9.3. Alterations Subject to Lease.

The following Alterations without further act shall be deemed to constitute a part of the Leased Property and be subject to this Lease:

(a) Alterations that are in replacement of or in substitution for a portion of the Improvements;

(b) Alterations that are required to be made pursuant to the terms of Section 9.1 or 9.2(a)(i) hereof; or

(c) Alterations that are Non-severable or immovable.

 

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To the extent any Alterations are deemed to constitute part of the Leased Property pursuant to the preceding sentence, the Lessee hereby acknowledges and agrees that such Alterations will become upon installation property of the Lessor. The Lessee will, at the Lessor’s request, execute and deliver any documents reasonably necessary to evidence or cause the vesting of such interests in and to such Alterations to the Lessor.

If such Alterations are not within any of the categories set forth in clauses (a) through (c) of this Section 9.3 and have not become property of the Lessor in accordance therewith, then such Alterations shall remain the sole property of the Lessee and such Alterations shall not be deemed to be Alterations which are part of the Leased Property. All such Alterations not constituting part of the Leased Property may, so long as no Event of Default is continuing, be removed at any time by the Lessee other than Alterations the removal of which would result in a violation of Applicable Laws. The Lessee shall at its expense prior to the Lease Expiration Date repair any damage to the Improvements or the Site caused by the removal of such Alterations. Lessor (or the purchaser of the Leased Property if the Lessee elects the Return Option or in connection with a sale pursuant to Section 18.1) may purchase from the Lessee any such Alterations (if not already owned by the Lessor) that the Lessee intends to remove from the Improvements or the Site prior to the Lease Expiration Date, which purchase shall be at the Fair Market Value of such Alterations as determined by the Appraiser at the time of such purchase.

SECTION 9.4. Maintenance and Repair Reports.

During the Lease Term, the Lessee shall keep maintenance and repair reports in sufficient detail, on the same basis as records are kept for similar properties owned or leased by the Lessee or its Subsidiaries, to indicate the nature and date of major work done. Such reports shall be kept on file by the Lessee at its offices during the Lease Term, and shall be made available at the Lessee’s office to the Lessor upon reasonable request.

SECTION 9.5. Permitted Contests.

If, to the extent and for so long as (a) a contest of the legality, validity or applicability to the Improvements or the Site or any interest therein of, or the operation, use or maintenance thereof by the Lessee of (i) any Applicable Laws, (ii) any term or condition of, or any revocation or amendment of, or other proceeding relating to, any Governmental Action, or (iii) any Lien or Tax shall be made in good faith, by appropriate proceedings initiated timely and diligently prosecuted, by the Lessee or (b) compliance with such Applicable Laws, Governmental Action, Lien or Tax shall have been excused or exempted by a valid nonconforming use permit, waiver, extension or forbearance, the Lessee shall not be required to comply with such Applicable Laws, Governmental Action, Lien or Tax but only if and so long as any such contest shall constitute a Permitted Contest.

Lessor will not be required to join in any Permitted Contest pursuant to this Section 9.5 unless a provision of any Applicable Laws requires, or, in the good faith opinion of the Lessee, it is helpful to the Lessee that such proceedings be brought by or in the name of the Lessor; and in that event, the Lessor will join in the proceedings or permit them or any part thereof to be brought in its name if and so long as (i) no Event of Default is continuing, (ii) the Lessee has not elected the Return Option, and (iii) the Lessee pays all related out-of-pocket expenses, and the

 

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Lessee shall be deemed to have acknowledged and agreed that the Lessor is indemnified therefor pursuant to Section 7.1 of the Participation Agreement.

ARTICLE X

USE

SECTION 10.1. Use.

The Site on which the Improvements are located shall be used solely for the purposes of a corporate office complex including a corporate office building and any uses ancillary thereto. Lessee shall not use the Leased Property or any portion thereof for any purpose or in any manner that would diminish (A) the utility of the Improvements as a corporate office complex including a corporate office building and any uses ancillary thereto, (B) the then current Fair Market Value as determined by reference to the Appraisal, or (C) the Fair Market Value as determined by reference to the Appraisal as of the scheduled expiration date of the Lease Term. Lessee shall use the Leased Property in compliance in all material respects with (a) any Applicable Laws (including Environmental Laws), except to the extent permitted by Section 9.5, (b) any Insurance Requirements, and (c) all of the Operative Documents. Lessee shall pay, or cause to be paid, all charges and costs required in connection with the use of the Leased Property in accordance with this Lease and the Participation Agreement. Lessee shall not commit or permit any intentional waste of the Leased Property or any material part thereof.

Lessor acknowledges that Lessee may hereafter desire to construct a parking facility on the Site. Lessor shall cooperate with Lessee’s reasonable requests, and at no cost to the Lessor, to permit such parking facility, provided, that Lessor shall have no obligations under this Section to increase the Equity Investment in connection therewith and provided, further, that such facility shall not diminish the value, utility or economic useful life of the Leased Property.

SECTION 10.2. Trade Compliance.

Lessee shall comply with the Trading with the Enemy Act, as amended, and all of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended), federal embargo laws and regulations, and the USA PATRIOT Act in the conduct of all of its activities, including the following: (i) the use, assignment, or sublease of Site or the Improvements by Prohibited Persons; and (ii) the export of any products manufactured at the Improvements to any destination or Prohibited Person.

ARTICLE XI

INSURANCE

SECTION 11.1. Required Coverages.

During the Lease Term, the Lessee will provide or cause to be provided insurance with respect to the Improvements and the Site of a character usually obtained by the Lessee against loss or damage of the kinds and in the amounts customarily insured against by the Lessee with respect to similar properties, and carry such other insurance as is usually carried by the Lessee with respect to similar properties; provided, that in any event the Lessee will maintain:

 

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(a) Comprehensive General Liability Insurance . Lessee will maintain a comprehensive general liability insurance policy on an occurrence basis, including contractual liability and pollution liability insurance for sudden and accidental contamination occurring on, in or about the Improvements or the Site with a combined single limit against claims for third-party bodily injury, including death and third-party property damage in an amount at least equal to $25,000,000 per occurrence and $25,000,000 in the aggregate, which may be a blanket policy. Such coverage may be subject to deductibles or self-insurance up to an amount that is customarily carried by the Lessee with respect to similar property. Such liability insurance shall name the Lessor as an additional insured and the Lessor shall continue to be named as an additional insured and such policy shall remain in effect until at least the third anniversary of the end of the Lease Term.

(b) Builder’s Risk Insurance . At any other time in connection with any construction of or Alteration to any Improvements, the Lessee shall arrange, on behalf of the Lessor and all contractors, to obtain and keep in force an all-risk builder’s risk insurance with respect to the Improvements and the construction of such Alterations or Improvements insuring the Lessor’s interest in the Improvements and the construction of such Alterations or Improvements including resulting damage from collapse, coverage for fire, hurricanes, flood and earthquakes and coverage against damage or loss caused by machinery accidents and operational and performance testing and start-up, with extended coverage, in an amount not less than the full replacement cost of the insured building (without deduction for depreciation). Such coverage shall provide (1) coverage for insuring the buildings, non-temporary structures, machinery, equipment (exclusive of manufacturing and laboratory equipment), facilities, fixtures, supplies and other property constituting part of the Leased Properties including but not limited to boiler and machinery insurance covering pressure vessels, air tanks, boilers, machinery, pressure piping, heating, ventilation and air conditioning equipment, and elevator and escalator equipment, (2) inland transit coverage from designated storage facilities, (3) off-site (within 1000 feet of the insured Improvements) coverage with sublimits sufficient to insure the full replacement value of any equipment, supplies and materials not stored at the Land, (4) removal of debris, (5) increased cost of construction, and (6) coverage for foundations and other property below the surface of the ground, but the interest of contractors, subcontractors and agents in insured property during construction at the insured location to the extent of Lessee’s legal liability for insured physical loss or damage to such property. Such coverage shall (x) not be subject to any self-insurance and shall be subject to a deductible of no more than $50,000 per occurrence except for (i) $100,000 per occurrence for water damage, (ii) $1,000,000 per occurrence for earthquake damage and (iii) $500,000 per occurrence for flood damage, and (y) be in such form and amounts and covering such risks as were approved by the Lessor on the Closing Date. Lessee shall promptly deliver all reports or information to the appropriate recipient which may be required under such policy or policies in order to ensure that the coverage provided with respect to the construction of such Alterations or Improvements is in an amount at least equal to the aggregate Advances funded under the Operative Documents for the construction of such Alterations or Improvements.

(c) Property Insurance . During the Base Term, Lessee will maintain all-risk insurance (including builder’s risk insurance including coverage for fire, hurricanes, flood and earthquakes and coverage against damage or loss caused by machinery accidents and operational and performance testing and start-up) against loss or damage covering the Leased Property or

 

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any portion thereof against such risks customarily maintained by the Lessee with respect to similar properties in an amount not less than the replacement cost of the Improvements, including any costs that may be required to cause the Leased Property to be reconstructed to comply with then current Applicable Laws. Such property insurance coverage may be subject to deductibles or self-insurance up to an amount that is customarily carried by the Lessee with respect to similar property. Such property insurance shall name each of the Lessor as sole loss payee and as an additional insured.

(d) Other Insurance . Insurance shall not cover any terrorism or war risks unless the Lessee carries insurance for such risks generally on similar property it owns or leases.

Insurance provided pursuant to this Section 11.1 (other than permitted self-insurance) shall be written by reputable insurance companies that are financially sound and solvent with a rating of at least “A-” by A.M. Best’s or Standard and Poor’s or by other insurers approved in writing by the Lessor (including consistent with the Lessee’s past practices, insurance companies affiliated with the Lessee). Each policy referred to in this Section 11.1 shall provide that: (i) it will not be canceled or allowed to lapse without renewal, except after not less than thirty (30) days’ prior written notice to the Lessor or ten (10) days’ prior notice to the Lessor in the case of non-payment of premium; (ii) other than standard policy exclusions, there is no provision in the policies where the interests of the Lessor shall be invalidated by any act or negligence of or breach of warranty by the Lessee or any Person having an interest in the Improvements or the Site; (iii) such insurance is primary and non-contributory with respect to any other insurance carried by or available to the Lessor; (iv) the insurer shall waive customary rights of subrogation, setoff, counterclaim, or other deduction, whether by attachment or otherwise, against any additional insured or loss payee; (v) such general liability policy and pollution legal liability policy shall contain a severability clause providing for coverage of the Lessor as if a separate policy had been issued to the Lessor; (vi) the Lessee will notify the Lessor promptly of any policy cancellation, reduction in policy limits, lapse, modification or amendment, and (vii) the insurer shall not allow for unpaid premiums to be paid by the Lessor.

Except as expressly set forth herein, the insurance required to be maintained by the Lessee under this Section 11.1 may be subject to such deductible amounts or periods, as applicable as is consistent with the Lessee’s practice for other properties similar to the Leased Properties owned or leased by the Lessee, and may be carried under blanket policies maintained by or on behalf of the Lessee so long as such policies otherwise comply with the provisions of this Section 11.

SECTION 11.2. Delivery of Insurance Certificates.

Pursuant to Section 3.1(c) of the Participation Agreement, the Lessee shall deliver to the Lessor certificates of insurance reasonably satisfactory to the Lessor evidencing the existence of all insurance required to be maintained hereunder and setting forth the respective coverages, limits of liability, carrier, policy number and period of coverage. Thereafter, throughout the Lease Term, at the time each of the Lessee’s insurance policies is renewed (but in no event less frequently than once every twelve (12) months) or upon written request by the Lessor during the continuance of an Event of Default, the Lessee shall deliver to the Lessor certificates of

 

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insurance evidencing that all insurance required by Section 11.1 to be maintained by the Lessee with respect to the Leased Property is in effect.

Lessee agrees that nothing in this Article XI shall prohibit the Lessor from maintaining its own insurance coverage, at its own expense, which coverage shall not reduce the obligations of the Lessee under this Article XI; provided, however, that no such insurance shall be maintained if its maintenance would prevent the Lessee from maintaining insurance as to the Improvements and the Site with insurers when required to do so herein.

ARTICLE XII

ASSIGNMENT AND SUBLEASING

During the Lease Term, the Lessee may assign, sublease or transfer to any Person, at any time, in whole or in part, its right, title or interest in, to or under this Lease or any portion of the Leased Property without the prior written consent of the Lessor so long as (v) any such assignment, sublease or transfer would not subject the Lessor to a violation of laws or regulations applicable to the Lessor including those promulgated by OFAC, (w) no Event of Default shall have occurred and be continuing or, after giving effect to such assignment, sublease or transfer, would exist, (x) any such sublease is expressly subject and subordinate to this Lease, (y) Lessee remains liable for all obligations under this Lease after giving effect to any such assignment, sublease or transfer, and (z) Lessor retains all of its interests in and benefits of the Cash Collateral and receives prior certification thereof from the Lessee and such other evidence thereof as the Lessor may reasonably request. Unless and until Lessee has exercised the Early Termination Option or the Purchase Option, no sublease may have a term that extends beyond the Base Term Expiration Date. In all cases, Lessee will promptly provide Lessor copies of each such assignment, sublease or transfer.

No sublease will discharge or diminish any of the Lessee’s obligations hereunder and the Lessee shall remain directly and primarily liable under the Lease with respect to the Leased Property and the Operative Documents to which it is a party. Each sublease permitted hereby shall be made and shall expressly provide in writing that it is subject and subordinate to this Lease and the rights of the Lessor hereunder, shall expressly provide for the surrender of the Leased Property by the sublessee at the election of the Lessor after an Event of Default, shall provide that such provisions may be directly enforced by the Lessor and shall provide that such sublessee expressly agrees to comply with the use restrictions set forth in Article X hereof.

Notwithstanding the first paragraph of this Article XII, Lessee may not assign or transfer its rights and obligations under this Lease and the other Operative Documents unless (a) on the effective date of any such assignment and transfer, no Event of Default exists, (b) the parties enter into an assignment agreement in form and substance reasonably satisfactory to the Lessor, (c) all filings of or in respect of any such assignment and transfer necessary to protect the rights of the Lessor in the Leased Property and the other Operative Documents are made in a timely fashion, (d) without limiting any provisions of this Article XII, any such assignment and transfer shall include an appropriate provision for the operation, maintenance and insurance of the Leased Property in accordance with the terms hereof, (e) the Lessor shall have received opinions of counsel with respect thereto and such other matters as the Lessor may reasonably request, (f) such assignment and transfer will not result in a Material Adverse Effect, (g) such assignment

 

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and transfer will not result in the imposition of any unindemnified Taxes, (h) the Lessor shall have received such other documents and instruments and the Lessee shall take such further acts as the Lessor may reasonably request to evidence and facilitate such assignment and transfer, provided that no such document or instrument shall increase Lessee’s obligations or diminish Lessee’s rights under the Operative Documents or otherwise, and (i) such assignment and transfer will not, with respect to the Lessor, violate the use restrictions set forth in Article X hereof or Applicable Laws and provided, further that, Lessee shall provide to the Lessor not less than thirty (30) days’ prior written notice of such assignment or transfer, such notice to identify the assignee or transferee. No such assignment and transfer will diminish or discharge any of the Lessee’s obligations under this Lease or the other Operative Documents.

ARTICLE XIII

LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE

SECTION 13.1. Event of Loss.

(a) Event of Loss During Base Term .

(i) Event of Taking . If an Event of Taking shall occur during the Base Term, the Lessee shall give the Lessor prompt written notice of such occurrence and the date thereof and the Lessee shall on the next succeeding Payment Date (the “ Next Date ”) after such Event of Taking shall have occurred or, if such Event of Taking shall have occurred within ten (10) Business Days preceding a Payment Date, then on the next succeeding Payment Date after such Next Date shall have occurred, terminate this Lease and, as compensation for such Event of Taking, pay to the Lessor on such Payment Date the Break Even Price.

(ii) Event of Loss . If an Event of Loss (other than an Event of Taking) shall occur during the Base Term, the Lessee shall give the Lessor prompt written notice of such occurrence and the date thereof which notice shall contain an election by the Lessee to either (A) purchase the Leased Property from the Lessor on the Next Date after such Event of Loss shall have occurred or, if such Event of Loss shall have occurred within ten (10) Business Days preceding a Payment Date, then on the next succeeding Payment Date after such Next Date shall have occurred, at a purchase price equal to the Break Even Price of the Leased Property (and if the Lessee makes such election the Break Even Price shall become due and payable and the Lessee shall purchase the Leased Property on such Payment Date), or (B) provided no Material Default or Event of Default shall have occurred and be continuing and rebuilding of the Improvements is capable of being completed prior to the end of the Lease Term (as certified in writing by a construction consultant appointed by Lessee and acceptable to the Lessor), rebuild the Improvements and continue the Lease. If the Lessee elects to rebuild the Improvements, the Lessee shall rebuild the Improvements to the condition required to be maintained pursuant to Section 9.1 and so as not to diminish (A) the utility of the Improvements as a corporate office complex including a corporate office building, and any uses ancillary thereto, (B) the then current Fair Market Value as determined by reference to the Appraisal, or (C) the Fair Market Value as determined by reference to the Appraisal as of the scheduled expiration date of the Lease Term.

 

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(b) Purchase and Termination . Upon receipt in full by the Lessor of the Break Even Price pursuant to this Section 13.1, the Lease shall terminate and the obligations of the Lessee hereunder and under the other Operative Documents (other than any obligations expressed herein, or any other Operative Document as surviving termination of this Lease (including any obligations with respect to any existing Event of Default)) shall terminate as of the date of such receipt. Upon such receipt in full of the Break Even Price, the Leased Property and all rights to any remaining awards or proceeds shall be transferred to the Lessee or its designee in accordance with Section 23.11 hereof.

(c) Application of Payments Relating to an Event of Loss . Subject to Section 13.4, all condemnation proceeds and property insurance proceeds received at any time by Lessee during the Lease Term from any Authority or other Person with respect to any Event of Loss shall be promptly remitted to the Lessor (up to, but not exceeding, the Break Even Price) and, upon the payment in full of the Break Even Price, the Lessor shall assign to the Lessee all rights to any condemnation proceeds and property insurance proceeds and any such condemnation proceeds and property insurance proceeds remaining thereafter or thereafter received shall be paid by the Lessor (whichever shall receive same) over to Lessee, or as Lessee may direct, and any receipt of such proceeds shall satisfy the Lessee’s obligations under Section 13.1.

SECTION 13.2. Condemnation.

In case of a Condemnation for temporary use of all or a portion of the Leased Property or a Condemnation of a portion of the Leased Property, in each case which is not an Event of Taking, this Lease shall remain in full force and effect, without any abatement or reduction of Rent, and the proceeds and awards received from any Authority relating to such Condemnation shall, so long as no Material Default or Event of Default shall have occurred and be continuing, be paid by the Lessor to the Lessee and, to the extent applicable, shall be used by the Lessee to repair and restore the affected Leased Property to the condition required by Section 9.1. Notwithstanding anything herein to the contrary, any portion of such proceeds that is awarded with respect to the time period after the expiration or termination of the Lease Term (unless the Lessee shall have exercised an option to purchase the Leased Property and consummated such purchase) shall be paid to the Lessor; provided, that if the Lessee has paid the Break Even Price to the Lessor, such proceeds (or the portion of such proceeds in excess of portion thereof applied to the Break Even Price) shall be paid by the Lessor over to the Lessee.

SECTION 13.3. Casualty.

Upon any Casualty during the Base Term with respect to the Leased Property which is not an Event of Loss, this Lease shall remain in full force and effect, without any abatement or reduction of Rent and, if the cost of repair would exceed $2,000,000 (as reasonably determined by Lessee), the Lessee shall give to the Lessor written notice of such Casualty. As soon as practicable after such Casualty with respect to the Leased Property has occurred, the Lessee shall repair and rebuild the affected portions of the Leased Property suffering such Casualty (or cause such affected portions to be repaired and rebuilt) to the condition required to be maintained by Section 9.1 and so that the Fair Market Value, utility, useful life and functional capability of such item as restored is at least equivalent to the Fair Market Value, utility and useful life and functional capability of such item as in effect immediately prior to the occurrence of such

 

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Casualty (assuming the Improvements were being maintained in accordance with Section 9.1); provided, that at all times during such repair or rebuilding the Lessee shall maintain the Improvements in accordance with Section 9.1.

SECTION 13.4. Proceeds.

If a Material Default or an Event of Default shall have occurred and be continuing, any proceeds received from any Authority or any insurance proceeds, in either case with respect to any Casualty or an Event of Loss, shall be held by the Lessor. So long as no Material Default or Event of Default shall have occurred and be continuing, any such proceeds received from any Authority or any insurance proceeds with respect to any Casualty, or if the Lessee has elected to rebuild the Improvements upon an Event of Loss pursuant to Section 13.1 hereof, with respect to such Event of Loss, shall be paid by the Lessor or by the insurers over to the Lessee up to $2,000,000. Any such proceeds received from any Authority or any insurance proceeds with respect to any Casualty or, if the Lessee has elected to rebuild the Improvements, with respect to an Event of Loss, in each case, not paid over to the Lessee in accordance with the previous sentence, shall be held by the Lessor and made available to the Lessee to pay costs actually incurred by the Lessee to restore the Leased Property as required herein in accordance with Section 13.1, as applicable, and any proceeds received from any Authority or any insurance proceeds remaining after such restoration shall be paid by the Lessor over to the Lessee.

SECTION 13.5. Negotiations.

In the event any part of the Leased Property becomes subject to condemnation or requisition proceedings during the Lease Term, the Lessee shall give notice thereof to the Lessor promptly after the Lessee has knowledge thereof and, to the extent permitted by any Applicable Laws, the Lessee shall control the negotiations with the relevant Authority unless an Event of Default has occurred and is continuing, in which case the Lessor shall be entitled to control such negotiations in consultation with the Lessee; provided, that in any event the Lessor may participate at the Lessor’s expense (or if an Event of Default is continuing or such negotiations occur during the Construction Period, at the Lessee’s expense) in such negotiations. Lessee shall give to the Lessor such information, and copies of such documents, which relate to such proceedings, or which relate to the settlement of amounts due under insurance policies required by Section 11.1, and are in the possession of the Lessee, as are reasonably requested by the Lessor. If the proceedings relate to an Event of Taking, the Lessee shall act diligently in connection therewith. Nothing contained in this Section 13.5 shall diminish the Lessor’s rights with respect to condemnation proceeds and property insurance proceeds under Section 13.1.

SECTION 13.6. No Rent Abatement.

Rent shall not abate hereunder by reason of any Casualty, any Event of Loss, any Event of Taking or any Condemnation of any portion of the Leased Property, and the Lessee shall continue to perform and fulfill all of the Lessee’s obligations, covenants and agreements hereunder notwithstanding such Casualty, Event of Loss, Event of Taking or Condemnation until the Lease Expiration Date.

 

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ARTICLE XIV

CERTAIN DUTIES AND RESPONSIBILITIES

Lessor undertakes to perform such duties and only such duties as are specifically set forth herein and in the other Operative Documents, and no implied covenants or obligations shall be read into this Lease against the Lessor, and the Lessor agrees that it shall not, nor shall it have a duty to, manage, control, use, sell, maintain, insure, register, lease, operate, modify, dispose of or otherwise deal with the Improvements or the Site in any manner whatsoever, except as required by the terms of the Operative Documents and as otherwise provided herein.

ARTICLE XV

INSPECTION

Upon seven (7) Business Days prior notice to the Lessee, the Lessor or its authorized representatives (the “ Inspecting Parties ”) at any time during the Lease Term may inspect (a) the Improvements and the Site and (b) the books and records of the Lessee and its Affiliates relating to the Improvements and the Site and make copies and abstracts therefrom. All such inspections shall be (i) during the Lessee’s normal business hours, (ii) subject to the Lessee’s reasonable confidentiality requirements, and (iii) at the expense and risk of the Inspecting Parties, except that, if a Default or Event of Default has occurred and is continuing, the Lessee shall reimburse the Inspecting Parties for the reasonable out-of-pocket costs and expenses of such inspections and, except for the Inspecting Party’s gross negligence or willful misconduct, such inspection shall be at the Lessee’s risk. No inspection shall unreasonably interfere with the Lessee’s operations. None of the Inspecting Parties shall have any duty to make any such inspection or inquiry. None of the Inspecting Parties shall incur any liability or obligation by reason of making any such inspection or inquiry unless and to the extent such Inspecting Party causes damage to the Improvements or the Site or any property of the Lessee or any other Person during the course of such inspection.

ARTICLE XVI

ENVIRONMENTAL MATTERS

SECTION 16.1. Environmental Matters.

At the Lessee’s sole cost and expense, the Lessee shall promptly and diligently and in accordance with Applicable Laws commence and complete any response, clean up, remedial or other action necessary to remove, clean up or remediate any Environmental Violation with respect to the Improvements or the Site to the extent required of the Lessee or the Lessor in order to comply with Applicable Laws (a “ Remediation ”). Lessee shall, upon completion of remedial action by the Lessee (i) with respect to any Material Environmental Violation described in clause (ii) of the definition thereof, cause to be prepared by an authorized representative of the Lessee a certificate describing in sufficient detail such Environmental Violation and the actions taken by the Lessee (or its agents) in response to such Environmental Violation and a statement of such authorized representative of the Lessee that such Environmental Violation has been remedied in compliance in all material respects with Applicable Laws and (ii) with respect to any other Material Environmental Violation, cause to be prepared by the Environmental Expert a report

 

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describing in sufficient detail such Environmental Violation and the actions taken by the Lessee (or its agents) in response to such Environmental Violation, and a statement by the Environmental Expert that the Environmental Violation has been remedied in compliance in all material respects with Applicable Laws. Each Environmental Violation shall be remedied prior to the Lease Expiration Date unless the Leased Property has been purchased by the Lessee in accordance with Section 20.1, 20.2 or 22.1(a), provided that if remedying such Environmental Violation requires continued operation of a remediation system or monitoring of testing wells or similar ongoing testing, the Lessee shall have access at reasonable times and shall remain obligated to perform such actions unless the Lessor, in its sole discretion, notifies Lessee to terminate such actions. Nothing in this Article XVI shall reduce or limit the Lessee’s obligations under Article VII of the Participation Agreement (which obligations shall include any Claims arising from such actions).

SECTION 16.2. Notice of Environmental Matters.

Promptly upon the Lessee’s obtaining knowledge of the existence of any Material Environmental Violation with respect to the Improvements or the Site, the Lessee shall notify the Lessor in writing of such Material Environmental Violation. Promptly, but in any event within thirty (30) days from the date a Responsible Officer of the Lessee has actual knowledge thereof, the Lessee shall provide to Lessor written notice of any pending or, to the Lessee’s knowledge, threatened (in writing) claim, action or proceeding involving any Material Environmental Violation with respect to the Improvements or the Site. All such notices shall describe in reasonable detail the nature of the claim, action or proceeding and the Lessee’s proposed response thereto. In addition, the Lessee shall provide to the Lessor, within thirty (30) days of receipt, copies of all material written communications with any Authority relating to any Material Environmental Violation. Lessee shall also promptly provide such detailed reports of any Material Environmental Violation as may reasonably be requested by the Lessor. For purposes hereof, “ Material Environmental Violation ” shall mean any Environmental Violation (i) which imposes or, in the good faith judgment of the Lessee or the Lessor, could reasonably be expected to impose criminal liability on the Lessor, or (ii) the cost of which to remediate is or could reasonably be expected to be in excess of $1,000,000.

ARTICLE XVII

EVENTS OF DEFAULT

The occurrence of any one or more of the following events, whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body, shall constitute an “ Event of Default ”:

(a) the Lessee shall fail to make any payment of Basic Rent when due and such failure shall continue for a period of three (3) Business Days after notice thereof, or the Lessee shall fail to make any payment of the Break Even Price, Lease Balance or other amounts due and payable under Article XIII, Article XX, Section 21.1(a) or Article XXII when due;

 

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(b) the Lessee shall fail to make payment of any Supplemental Rent (other than any Supplemental Rent described in clause (a) above) when due and such failure shall continue for a period of ten (10) Business Days after notice thereof;

(c) the Lessee shall fail to maintain insurance as required by Article XI of this Lease;

(d) the Lessee shall fail to perform or observe any of the terms, covenants, conditions and agreements set forth in Articles XXI and XXII of this Lease other than the failure to give notice of an end of term option pursuant to Section 21.1 hereof;

(e) any representation, warranty, certification or statement made or deemed to be made by the Lessee under this Lease, any other Operative Document (except as to any Other Lease Document) or in any certificate, financial statement or other document delivered pursuant hereto or thereto, shall at any time prove to have been incorrect in any material respect when made or deemed made and Lessee shall fail to cure the underlying facts causing such representation, warranty, certification or statement to be incorrect in all material respects for a period of ten (10) Business Days after the earlier of Actual Knowledge or notice thereof;

(f) the Lessee shall default in the performance or observance of any term, covenant, condition or agreement contained in this Lease (other than as specifically provided for otherwise in this Article XVII) or any other Operative Document (except as to any Other Lease Document) and such default shall continue for a period of thirty (30) days after the earlier of Actual Knowledge thereof or written notice thereof has been given to the Lessee; provided, however, that if such failure is capable of cure but cannot be cured by payment of money or cannot be cured by diligent efforts within such thirty (30) day period but such diligent efforts shall be properly commenced within such thirty (30) day period and the Lessee is diligently pursuing, and shall continue to pursue diligently remedy of such failure, such cure period shall be extended for an additional period of time in excess of such cure period as may be necessary to cure, not to extend beyond the earlier to occur of (i) the Lease Expiration Date or (ii) one hundred and twenty (120) days after the earlier of Actual Knowledge thereof or written notice thereof having been given to the Lessee;

(g) (i) Lessee or any of its Subsidiaries shall default beyond any applicable period of grace in any payment of principal of or interest on any indebtedness for borrowed money on which Lessee or any of its subsidiaries is liable in an aggregate principal amount then outstanding of $50,000,000 or more or (ii) an event of default (other than a failure to pay principal or interest) as defined in any mortgage, indenture, agreement or instrument under which there may be issued, or by which there may be secured or evidenced, any such indebtedness shall happen and shall result in such indebtedness becoming or being declared due and payable prior to the date on which it could otherwise become due and payable;

(h) the Lessee or any material Subsidiary shall file a voluntary petition of insolvency, bankruptcy or a voluntary petition or an answer seeking reorganization in a proceeding under any bankruptcy, insolvency or other similar laws (as now or hereafter in effect) or an answer admitting the material allegations of a petition filed against the Lessee in any such proceeding; or the Lessee shall, by voluntary petition, answer or consent, seek relief under the provisions of Bankruptcy Code or any other now existing or future bankruptcy, insolvency or other similar law

 

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providing for reorganization, administration or winding-up or for an agreement, composition, extension or adjustment with their respective creditors, or shall adopt a resolution of liquidation, including but not limited to, any petition or notice filed by the Board of Directors of the Lessee or such Subsidiary or the Lessee shall admit in writing its inability or fail generally to pay its debts or the Lessee shall seek the appointment of a trustee in bankruptcy, administrator or a receiver for any kind of insolvency proceedings for itself or any substantial portion of its assets, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall take any corporate action to authorize any of the foregoing;

(i) an involuntary case or other proceeding shall be commenced against the Lessee or any material Subsidiary seeking its bankruptcy, liquidation, reorganization, winding-up or other relief with respect to it or its debts under the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of sixty (60) consecutive days; or the Lessee or any material Subsidiary shall be declared bankrupt or any other order for relief shall be entered against the Lessee or any material Subsidiary under the U.S. Federal bankruptcy laws or any other relevant bankruptcy laws of any jurisdiction;

(j) a final judgment or order for the payment of money in excess of $125,000,000 (to the extent not covered by insurance) shall be rendered against the Lessee or any material Subsidiary and the Lessee or such Subsidiary shall not discharge the same or provide for its discharge in accordance with its terms, or procure a stay of execution thereof, within sixty (60) days after the date of entry thereof and, in the case of any such stay of execution, within said period of sixty (60) days (or such longer period during which execution of such judgment shall have been stayed) appeal therefrom and cause the execution thereof to be stayed during such appeal;

(k) a Change in Control shall occur;

(l) (i) Lessee or any ERISA Affiliate shall fail to pay within thirty (30) days of the due date thereof an amount or amounts aggregating in excess of $100,000,000 which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; (ii) notice of intent to terminate a Plan having unfunded benefit liabilities (within the meaning of Section 4001(a)(18) of ERISA) in excess of $100,000,000 (a “ Material Plan ”) shall be filed under Title IV of ERISA by Lessee or any ERISA Affiliate, any plan administrator or any combination of the foregoing; (iii) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan; (iv) the failure of Lessee or any ERISA Affiliate to make any required contribution to a Multiemployer Plan unless the failure is cured within thirty (30) days, (v) the withdrawal or partial withdrawal of Lessee or any ERISA Affiliate from any Multiemployer Plan, (vi) the receipt by Lessee or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from Lessee or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, “ insolvent ” (within the meaning of Section 4245 of ERISA) or in “ reorganization ” (within the meaning of Section 4241 of (ERISA) or (vii) the

 

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imposition of liability on Lessee or any ERISA Affiliate by reason of the application of Section 4212(c) of ERISA, in each case with respect to clauses (iv)-(vii), to the extent that such event, taken together with any other such events described in clauses (iv)-(vii), could reasonably be expected to result in Lessee incurring aggregate liability in excess of $100,000,000;

(m) any Operative Document (except as to any Other Lease Document) or any assignment, security interest or Lien granted thereunder (except in accordance with its terms), in whole or in part, terminates, ceases to be a legal, valid and binding enforceable obligation of the Lessee or any of its Affiliates or the Lessee or any of its Affiliates, directly or indirectly, contests in any manner in any court the effectiveness, validity, binding nature or enforceability thereof; or any assignment, security interest or Lien securing the Lessee’s obligations under the Operative Documents, in whole or in material part, ceases to be perfected (except as the result of any affirmative act of the Lessor, failure by the Lessor to file a UCC continuation statement or by operation of law) with the same priority as was in effect on the Closing Date; or

(n) an Event of Default shall have occurred under and as defined in the Pledge Agreement (Fremont 3).

ARTICLE XVIII

ENFORCEMENT

SECTION 18.1. Remedies.

(a) During the continuation of an Event of Default and notwithstanding any Event of Loss or termination of the Lease pursuant to Article XIII, at the Lessor’s option and without limiting the Lessor in the exercise of any other right or remedy the Lessor may have on account of such Event of Default, and without any further demand or notice, the Lessor may to the fullest extent permitted under Applicable Laws cause the following to occur:

(i) By notice to the Lessee, the Lessor may terminate the Lessee’s right to possession of the Leased Property.

(ii) The Lessor may (i) demand that Lessee, and Lessee shall upon the written demand of the Lessor, return the Leased Property promptly to the Lessor in the condition required by Section 22.5 and the Lessor shall not be liable for the reimbursement of Lessee for any costs and expenses incurred by Lessee in connection therewith, and (ii) without prejudice to any other remedy which the Lessor may have for possession of the Leased Property, and to the extent and in the manner permitted by Applicable Laws, enter upon the Site and Improvements and take immediate possession of (to the exclusion of Lessee) the Leased Property or any part thereof and expel or remove Lessee, by summary proceedings or otherwise, all without liability to Lessee for or by reason of such entry or taking of possession (provided that, the Lessor shall remain liable for actual damages caused by its bad faith, gross negligence or willful misconduct), whether for the restoration of damage to property caused by such taking of possession or otherwise and, in addition to the Lessor’s other damages, Lessee shall be responsible for all actual and reasonable costs and expenses incurred by the Lessor in connection with any reletting, including brokers’ fees and all costs of any alterations or repairs made by the Lessor;

 

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(iii) The Lessor may terminate this Lease with respect to all or any part of the Leased Property and/or declare the aggregate outstanding Lease Balance to be immediately due and payable, and the Lessor shall be entitled to (x) recover from the Lessee the following amounts and (y) take the following actions:

(1) the Lessee shall pay all accrued and unpaid Rent hereunder (including Basic Rent and Supplemental Rent) for the period commencing on the Closing Date through the Final Rent Payment Date with respect to the Leased Property;

(2) the Lessor may elect either of the following with respect to any or all of the Leased Property:

(A) the Lessor may demand, by written notice to the Lessee specifying a payment date (the “ Final Rent Payment Date ”) on a Business Day no earlier than thirty (30) days after the date of such notice but, in any event, no later than the date the Leased Property or part thereof is sold pursuant to clause (B)(2) hereof, that the Lessee purchase the Leased Property, and the Lessee shall pay to the Lessor, on the Final Rent Payment Date (in lieu of Basic Rent due after the Final Rent Payment Date), an amount equal to the sum of (x) the Lease Balance computed for the period commencing on the Closing Date to and including the Final Rent Payment Date, plus (y) all accrued and unpaid Rent due and unpaid for the period commencing on the Closing Date to and including the Final Rent Payment Date (less any amounts paid by the Lessee under clause (x) above), and upon payment of such amount, and the amount of all other sums due and payable by the Lessee under this Lease and the other Operative Documents (and interest at the Overdue Rate on the amounts payable under this clause (B)(1) from the Final Rent Payment Date to the date of actual payment), the Leased Property shall be transferred to the Lessee or its designee pursuant to Section 23.11; or

(B) the Lessor may sell its interest in the Leased Property and/or pursue any and all remedies under the Security Documents, and, in any event, the Lessee shall pay to the Lessor an amount equal to the excess, if any, of (x) all amounts described in clause (B)(1) above due the Lessor over (y) the net Sale Proceeds received by the Lessor from the foregoing sale (provided, that in calculating such net Sale Proceeds, all fees, costs, expenses and Taxes to the extent not indemnified and not paid by the Lessee pursuant to Section 7.2 of the Participation Agreement incurred by the Lessor in connection with such sale, including legal fees, shall be deducted from such Sale Proceeds);

(3) Any other amount necessary to compensate the Lessor for all the damages caused by or resulting from the Lessee’s failure to perform the Lessee’s obligation under this Lease, including the costs and expenses (including reasonable attorneys’ fees, advertising costs and brokers’ commissions) of

 

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recovering possession of the Leased Property, removing Persons or property from the Leased Property, placing the Leased Property in good order, condition, and repair, preparing and altering the Leased Property for reletting, and all other costs and expenses of reletting; and

(4) Such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by Applicable Laws.

(iv) The Lessor may exercise any and all rights and remedies under the Security Documents including with respect to the Cash Collateral subject to the Pledge Agreement and accounts under the Blocked Account Agreement.

(v) If an Event of Default under this Lease is continuing, this Lease shall continue in effect for so long as the Lessor does not terminate this Lease, and the Lessor may enforce all of the Lessor’s rights and remedies under this Lease, including the right to recover the Rent hereunder (including Basic Rent (when applicable) and Supplemental Rent) as it becomes due under this Lease. Lessee’s right to possession shall not be deemed to have been terminated by the Lessor except pursuant to clause (i) above. The following do not constitute a termination of this Lease:

(1) Acts of maintenance or preservation or efforts to relet the Leased Property; and

(2) Withholding of consent to assignment or subletting, or terminating a subletting or assignment by the Lessee.

(vi) In the event that the Lessor elects to continue this Lease in full force and effect following the termination of the Lessee’s right of possession of the Improvements, the Lessor, to the maximum extent permitted by Applicable Laws, may enforce all its rights and remedies under this Lease including the right to recover Rent hereunder as it becomes due. During the continuance of an Event of Default or following the termination of the Lessee’s right to possession of the Improvements, the Lessor may enter the Improvements and the Site in accordance with Applicable Laws without terminating this Lease and sublet all or any part of the Leased Property for the Lessee’s account to any Person, for such term (which may be a period beyond the remaining Lease Term), at such rents and on such other terms and conditions as are commercially reasonable. In the event of any such subletting, rents received by the Lessor from such subletting shall be applied (a) first, to the payment of the reasonable costs incurred by the Lessor in maintaining, preserving, altering and preparing the Leased Property for subletting and other reasonable costs of subletting, including reasonable brokers’ commissions and attorneys’ fees; (b) second, to the payment of Rent hereunder then due and payable; (c) third, to the payment of future Rent hereunder as the same may become due and payable hereunder; (d) fourth, to the payment of all other obligations of the Lessee hereunder and under the other Operative Documents (including the Lease Balance), and (e) fifth, the balance, if any, shall be paid to the Lessee upon (but not before) expiration of the Lease Term. If the rents received by the Lessor from such subletting, after application as provided above, are insufficient in any period to pay the Rent due and payable hereunder

 

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for such period, the Lessee shall pay such deficiency to the Lessor upon demand. Notwithstanding any such subletting for the Lessee’s account without termination, the Lessor may at any time thereafter, by written notice to the Lessee, elect to terminate this Lease.

(vii) The Lessor may exercise any other right or remedy that may be available to it under Applicable Laws or in equity, or proceed by appropriate court action (legal or equitable) to enforce the terms or to recover damages for the breach hereof, including those arising from a breach by the Lessee of its obligations under Section 20.2 hereof. Separate suits may be brought to collect any such damages for any Rent installment period(s), and such suits shall not in any manner prejudice the Lessor’s right to collect any such damages for any subsequent Rent installment period(s), or the Lessor may defer any such suit until after the expiration of the Lease Term, in which event such suit shall be deemed not to have accrued until the expiration of the Lease Term.

(viii) The Lessor may retain and apply against the Lessor’s damages all sums which the Lessor would, absent such Event of Default, be required to pay to, or turn over to, the Lessee pursuant to the terms of this Lease.

The Lessee acknowledges and agrees that upon the declaration of an Event of Default the amount due and owing by the Lessee to the Lessor hereunder shall be the Lease Balance and that to the maximum extent permitted by Applicable Laws, the Lessee waives any right to contest the Lease Balance as the liquidated sum or agreed upon sum due and owing.

(b) In the event that an Event of Default is declared (or deemed declared) solely and exclusively on the basis of one or more 97-1 Events of Default,

(x) a claim or demand by the Lessor for payment by Lessee of or in respect of the Lease Balance under Section 18.1(a) hereof shall be limited as follows:

(i) any obligation of the Lessee to pay the Lease Balance and amounts due under clauses (C) and (D) of Section 18.1(a)(iii) shall be reduced to be an obligation to pay an amount equal to the Recourse Deficiency Amount; provided, however, that if Lessee shall not pay the full Lease Balance and such other amounts, the Lessor shall not have any obligation to transfer the Leased Property to the Lessee or its designee as provided in clause (B)(1) of Section 18.1(a)(iii); and

(ii) any obligation of the Lessee to pay any shortfall determined by reference to the Lease Balance as provided in clauses (B)(2) of Section 18.1(a)(iii), and amounts due under clauses (C) and (D) of Section 18.1(a)(iii) shall be revised to be an obligation to pay the lesser of (i) such shortfall plus such other amounts and (ii) the Recourse Deficiency Amount; and

the references to “ Lease Balance ” in the last paragraph of Section 18.1(a) and in Section 18.2 shall be deemed references to the amount described in clause (i) or clause (ii) above, as applicable, provided, however, that the foregoing limitation shall not limit or affect any other rights of the Lessor as Lessor shall have all rights and remedies available under the Operative Documents or available at law, equity or otherwise including the right to demand the payment of

 

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Supplemental Rent (other than the Lease Balance) and the right to require surrender and return or sale to a third party of the Leased Property all as set forth herein; and

(y) if Section 18.1(a)(vi) is applicable, the reference to Lease Balance in clause (d) thereof shall be a reference to the Recourse Deficiency Amount so long as the Lease has not been terminated.

SECTION 18.2. Proceeds of Sale; Deficiency.

(a) All payments received and amounts held or realized by the Lessor at any time when an Event of Default shall be continuing and after the Lease Balance shall have been accelerated pursuant to this Article XVIII as well as all payments or amounts then held or thereafter received by the Lessor (except for rents received by the Lessor from subletting pursuant to Section 18.1(a)(vi), which shall be distributed as set forth therein) and the proceeds of sale pursuant to Section 18.1(a)(iii)(B)(2) shall be distributed forthwith upon receipt by the Lessor as follows:

first , to the Lessor, so much of such amount as is required to reimburse the Lessor for any fees, costs, expenses, Taxes or other loss incurred by it (to the extent not previously reimbursed);

second , to the Lessor, so much of such amounts as are required to pay all expenses or fees incurred by the Lessor in connection therewith including Break Funding Amounts, if any;

third , to the Lessor, so much of such amount as is required to pay all accrued Yield thereon;

fourth , to the Lessor, so much of such amounts as are required to pay in full the outstanding amount of the Lease Balance;

fifth , to the Lessor, so much of such amounts as are required to pay all outstanding obligations of Lessee pursuant to the Operative Documents including all indemnities which are due and payable; and

sixth , to Lessee, the balance of such amount, if any.

SECTION 18.3. Waiver of Certain Rights.

To the maximum extent permitted by Applicable Laws, (a) the Lessee hereby waives the benefit of any appraisement, valuation, stay, extension, reinstatement and redemption laws now or hereafter in force and all rights of marshalling in the event of any sale of the Leased Property or any interest therein and (b) if this Lease shall be terminated pursuant to this Article XVIII, the Lessee waives, to the fullest extent permitted by Applicable Laws, (i) any notice of re-entry or the institution of legal proceedings to obtain re-entry or possession, (ii) any right of redemption, re-entry or repossession, (iii) the benefit of any laws now or hereafter in force exempting property from liability for rent or for debt or limiting the Lessor with respect to the election of remedies, (iv) any other rights which might otherwise limit or modify any of the Lessor’s rights

 

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or remedies under this Article XVIII, and (v) any rights now or hereafter conferred under California Applicable Laws that may require the Lessor to sell, lease or otherwise use the Leased Property, or any part thereof in mitigation of the Lessor’s damages upon the occurrence of an Event of Default or that may otherwise limit or modify any of the Lessor’s rights or remedies under this Article XVIII.

SECTION 18.4. Remedies Cumulative; No Waiver; Consents.

To the extent permitted by, and subject to the mandatory requirements of, Applicable Laws, each and every right, power and remedy herein specifically given to the Lessor or otherwise in this Lease shall be cumulative and shall be in addition to every other right, power and remedy herein specifically given or now or hereafter existing at law, in equity or by statute, and each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised from time to time and as often and in such order as may be deemed expedient by the Lessor, and the exercise or the beginning of the exercise of any power or remedy shall not be construed to be a waiver of the right to exercise at the same time or thereafter any other right, power or remedy. No delay or omission by the Lessor in the exercise of any right, power or remedy or in the pursuit of any remedy shall impair any such right, power or remedy or be construed to be a waiver of any default on the part of the Lessee or be an acquiescence therein. Lessor’s consent to any request made by the Lessee shall not be deemed to constitute or preclude the necessity for obtaining the Lessor’s consent, in the future, to all similar requests. No express or implied waiver by the Lessor of any Event of Default shall in any way be, or be construed to be, a waiver of any future or subsequent Default or Event of Default.

ARTICLE XIX

RIGHT TO CURE

If any Event of Default other than those described in paragraphs (h) and (i) of Article XVII shall be continuing and in the Lessor’s reasonably exercised judgment the Lessee is not acting diligently and appropriately to cure such Event of Default, the Lessor may, but shall not be obligated to, on five (5) Business Days’ prior notice to the Lessee (except in the event of an emergency, in which case only one (1) Business Day’s prior notice shall be required), cure such Event of Default and the Lessor shall not thereby be deemed to have waived any default caused by such failure to cure, and the amount of such payment and the amount of the expenses of the Lessor (including reasonable attorneys’ fees and expenses) incurred in connection with such cure, together with interest thereon at the Overdue Rate, shall be deemed Supplemental Rent, payable by the Lessee to the Lessor upon demand.

ARTICLE XX

EARLY TERMINATION OPTION; OBLIGATION TO PURCHASE; MID-TERM

REMARKETING OPTION

SECTION 20.1. Early Termination Option.

Without limitation of the Lessee’s purchase obligation pursuant to Section 20.2, the Lessee may, at its option, on any Business Day following the Base Term Commencement Date but prior to the Lessee’s election to exercise the Return Option, purchase all, but not less than all,

 

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of the Leased Property (the “ Early Termination Option ”) at a price equal to the Break Even Price. In order to exercise its option to purchase the Leased Property pursuant to this Section 20.1, the Lessee shall give the Lessor not less than thirty (30) days’ prior written notice of such election which election, in each case, shall be irrevocable when made. Notwithstanding anything herein to the contrary, the Lessee shall not be permitted to exercise the Early Termination Option following the occurrence and during the continuance of an Event of Default unless it shall (i) elect the Early Termination Option on or before ten (10) Business Days following such Event of Default, and (ii) consummate the purchase of the Leased Property by Lessee (or its designee) before twenty (20) Business Days following such Event of Default. Upon receipt of the Break Even Price, the Leased Property shall be transferred to the Lessee (or its designee) pursuant to Section 23.11.

SECTION 20.2. Required Purchase.

So long as the Lessor has not exercised any other remedy inconsistent therewith, the Lessee shall be obligated to purchase the Leased Property for the Break Even Price automatically and without notice upon the occurrence of any Event of Default described in clauses (h) or (i) of Article XVII and upon receipt of the Break Even Price the Leased Property shall be transferred to the Lessee (or its designee) pursuant to Section 23.11.

SECTION 20.3. Mid-term Remarketing Option.

At any time during the Lease Term other than after the occurrence and during the continuance of an Event of Default, Lessee shall have the option (the “ Remarketing Option ”) to designate a third party purchaser and to cause the Lessor to sell the Leased Property to such purchaser on the date designated for the sale thereof by Lessee (the “ Remarketing Sale Date ”) provided, that the Lessor shall have received the Remarketing Sale Proceeds of such sale together with (in the case where such Remarketing Sale Proceeds do not equal or exceed the Break Even Price) additional cash amounts paid to the Lessor by the Lessee, as Supplemental Rent, in an amount equal to the excess of the Break Even Price over such Remarketing Sale Proceeds. If the Remarketing Sale Proceeds exceed the Break Even Price as of such Remarketing Sale Date, the Lessor shall pay over to the Lessee the portion of the Remarketing Sale Proceeds in excess thereof after satisfaction of all amounts due hereunder or under the other Operative Documents. Subject to, and concurrent with, the receipt by the Lessor of funds equal to or in excess of the Break Even Price, on the Remarketing Sale Date, the Lessor shall convey to the Lessee or its designee the Leased Property in accordance with Section 23.11. The Lessee shall be responsible for the payment of all fees and expenses of the Lessor (including reasonable attorneys’ fees and expenses) incurred in connection with any exercise or purported exercise of the Remarketing Option.

 

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ARTICLE XXI

END OF TERM OPTIONS

SECTION 21.1. End of Term Options

At least one hundred and eighty (180) days prior to the Return Date, but not more than two hundred seventy (270) days, the Lessee shall, by delivery of an irrevocable written notice to the Lessor, exercise one of the following options:

(a) Purchase for cash for the Break Even Price all, but not less than all, of the Leased Property then subject to this Lease on the last day of the Lease Term (the “ Purchase Option ”) and if the Lessee shall have elected the Purchase Option, upon the payment to the Lessor of the Break Even Price, the Leased Property shall be transferred to the Lessee (or its designee) pursuant to Section 23.11; or

(b) Provided no Default or Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Event of Default with respect to which the Lessor has not yet commenced exercising remedies) shall have occurred and be continuing, return the Leased Property to the Lessor at the end of the scheduled expiration date of the Lease Term (the “ Return Option ”). The Return Option shall be conditioned upon and subject to the fulfillment by the Lessee of each of the terms and conditions set forth in Article XXII and, thereafter, the Lessee shall have no further obligations to pay Basic Rent or the remaining Lease Balance. Lessee shall not enter into any additional subleases or renew any subleases with respect to the Leased Property following the Lessee’s election of the Return Option. Following the Lessee’s election of the Return Option, the Lessee shall not remove any Alterations.

SECTION 21.2. Election of Options.

In the event Lessor shall not have received the foregoing notice from Lessee prior to the date that is one hundred and eighty (180) days prior to the last day of the Return Date, by delivery of written notice via nationally recognized overnight courier to the Lessee, Lessor may notify the Lessee of the expiration of the election notice period set forth in the preceding section. If, in any event, the Lessee fails to make a timely election under Section 21.1 hereof, the Lessee shall be deemed to have elected the Return Option. Lessee may not elect the Return Option if there exists on the date the election is made a Default, an Event of Default or an Event of Loss. In the event a Default or an Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) or an Event of Loss shall have occurred after the election by the Lessee, or deemed election by the Lessee, of the Return Option, then notwithstanding any such election or deemed election, Lessee shall be deemed to have elected the Purchase Option with respect to the Leased Property. In the event a Default or Event of Default that is solely and exclusively based on one or more 97-1 Events of Default shall have occurred after the election by Lessee of the Return Option, (i) Lessee may continue with its Return Option so long as the Lessor has not commenced exercising remedies with respect thereto, and (ii) Lessee shall not be permitted to continue with its Return Option and shall be

 

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subject to Section 18 hereof including the limitations set forth in Section 18.1(b) hereof, in the event the Lessor shall have commenced remedies with respect thereto.

ARTICLE XXII

RETURN OPTION

SECTION 22.1. Return Option Procedures.

(a) If the Lessee elects or is deemed to have elected the Return Option and the Lessor elects to require the Lessee to offer to sell the Leased Property, at the option of the Lessor, (x) the purchaser shall be reasonably entitled (whether on or before the Return Date or thereafter) to be granted a temporary easement or other right of access from the Lessee on the Leased Property to enable the purchaser to have access over paths and streets necessary to remarket the Leased Property (the “ Easement ”) (which obligation of the Lessee to grant such Easement hereunder shall survive the termination of this Lease), or (y) the Lessee shall use commercially reasonable efforts as non-exclusive agent for the Lessor to obtain the highest all cash purchase price for the Leased Property. In the event the Lessee receives any bid, the Lessee shall within five (5) Business Days after receipt thereof and, at least five (5) Business Days prior to the Return Date, certify to the Lessor in writing the amount and terms of such bid and the name and address of the party (who shall not be the Lessee or any Subsidiary of the Lessee or, unless the sum of (i) the Sale Proceeds pursuant to a proposed bid which the Lessee desires to accept plus (ii) the Recourse Deficiency Amount plus (iii) any amount payable pursuant to Section 7.5 of the Participation Agreement is not less than the Break Even Price, any Person with whom the Lessee has an understanding or arrangement regarding their future use, possession or ownership of the Leased Property or the Lessor’s other rights, title and interest in and to the Leased Property, but who may be the Lessor, any Affiliate thereof, or any Person contacted by the Lessor (other than any Person otherwise forbidden from being such purchaser pursuant to the foregoing parenthetical)) submitting such bid, and the Lessee and any sublessee shall confirm in writing both to the Lessor and to the bidder that it will vacate the Leased Property and take such reasonable steps as may be required to grant to the bidder the Easement on or before the Return Date.

(b) If the sum of (i) the Sales Proceeds pursuant to a proposed bid which the Lessee desires to accept plus (ii) the Recourse Deficiency Amount plus (iii) any amount payable pursuant to Section 7.5 of the Participation Agreement is not less than the Break Even Price, then the Lessee shall determine and accept the winning bid; otherwise, Lessor shall have the right, in its sole and absolute discretion to accept or reject any bid so presented by the Lessee. As non-exclusive selling agent, Lessee’s expenses and the out-of-pocket expenses incurred by the Lessor in connection with any such bidding and sale process pursuant to this Section 22.1 as well as all costs and expenses incurred by the Lessor or a buyer or potential buyer of the Leased Property to place the Leased Property in the condition required by Section 9.1, shall be deducted from the Sale Proceeds. On the Return Date, so long as no Event of Default or Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) shall have occurred and be continuing: (w) the Lessee shall transfer all of the Lessee’s right, title and interest in the Leased Property if any, that the Lessor does not yet hold pursuant to the terms of the Operative Documents to the bidder, if any, which shall have submitted the bid (if any)

 

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accepted pursuant to this Section 22.1(b), in the same manner and in the same condition and otherwise in accordance with all of the terms of this Lease, warranted free and clear of all Liens other than Permitted Liens described in clauses (a) and (b) of the definition thereof; (x) subject to the prior or current payment by the Lessee of all amounts due under clause (y) of this sentence, the Lessor shall comply with any conditions to transfer set forth in Section 22.2 and the transfer provisions of Section 22.1(b) in order to transfer its interests in the Leased Property for cash to such bidder; (y) the Lessee, as non-exclusive selling agent, shall simultaneously pay to the Lessor all of the amounts required pursuant to Section 22.3; and (z) after payment in full of all amounts owing to the Lessor hereunder and under the terms of the bid, this Lease shall terminate or, at Lessee’s option, shall be assigned by Lessor without recourse or warranty by Lessor to a designee concurrent with the payment of such designated amount. The Lessor shall not have any responsibility for procuring any purchaser; provided, however, that the Lessor and its designees may engage in activities to market and sell the Leased Property and may terminate Lessee as its non-exclusive selling agent upon one (1) Business Day’s notice. Any such activities reasonably undertaken by the Lessor pursuant to this Section 22.1(b) shall be at the Lessor’s sole cost and expense (which shall be deducted from the Sale Proceeds in accordance with the foregoing), shall not reduce the Lessee’s obligations, as non-exclusive selling agent, under this Section 22.1(b) or during the Extended Remarketing Period) to use commercially reasonable efforts, as non-exclusive selling agent, to sell the Leased Property in accordance with the requirements of this Section 22.1(b) and Section 22.2. If the Sale Proceeds exceed the Break Even Price as of the Return Date, the Lessee shall retain or be entitled to receive the portion of the Sale Proceeds in excess thereof. If the Sale Proceeds are less than the aggregate outstanding Break Even Price, the Lessee shall pay or shall cause to be paid to the Lessor, as Supplemental Rent, on the date of such sale (but not later than the Return Date), in addition to the Sale Proceeds, an additional amount as set forth in the last sentence of Section 22.3(a) hereof.

SECTION 22.2. Sale.

Lessee, as non-exclusive selling agent, shall, on the Return Date, at the Lessee’s own expense (without right of reimbursement therefor out of gross sale proceeds except as provided in the third sentence of Section 22.1(b) above), negotiate the terms of any applicable sale, such that the Leased Property transferred to the purchaser in accordance with Section 22.1 hereof is (i) free and clear of all Liens, other than Permitted Liens described in clauses (a) or (b) of the definition thereof and (ii) (A) in the condition required by the terms of this Lease, (B) capable of operating in accordance with the purposes set forth in the Appraisal, (C) without any lessees claiming relief or exemption from judicial execution, and (D) in compliance with all Applicable Laws. Lessee, as non-exclusive selling agent, shall obtain all necessary governmental consents and approvals and make all governmental filings required by the Lessee or the Lessor in connection with any sale and grant of rights. Lessee, as non-exclusive selling agent, shall cooperate with the purchaser of the Leased Property in order to facilitate the transfers of the use, ownership and operation of the Leased Property by such purchaser after the date of the sale or transfer, including providing all books, reports and records regarding the maintenance, repair and ownership of the Leased Property and granting or assigning all licenses necessary for the operation of the Leased Property and cooperating in seeking and obtaining all necessary Governmental Actions. Lessee shall also, on the Return Date, vacate and cause any sublessee to vacate the Leased Property. As a further condition to the Lessee’s rights hereunder, the Lessee shall pay the total cost for the completion of all Alterations commenced after the Base Term

 

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Commencement Date and prior to the Return Date, and, subject to the Lessee’s right to use applicable insurance proceeds as set forth in Article XIII hereof, for the repair and rebuilding of the affected portions of the Leased Property suffering a Casualty after the Base Term Commencement Date. Such Alterations and all such repairs and rebuilding shall be completed prior to the Return Date. Unless the Lessee shall have exercised or been deemed to have exercised its Purchase Option or the Leased Property is to be sold to an independent purchaser, prior to the Return Date, the Lessee shall furnish to the Lessor and the independent purchaser hereunder a reasonably current preliminary environmental survey for the Leased Property dated no earlier than forty-five (45) days prior to the Return Date, from an environmental consultant satisfactory in the reasonable discretion of Lessor certifying that there exists no environmental contamination with respect to the Leased Property which would adversely affect the marketability, fair market value or useful life, as determined by the Appraisal, of the Leased Property or have an adverse effect on the Lessor and addressed to Lessor in form and substance satisfactory in the reasonable discretion of Lessor. The obligations of the Lessee under this Section 22.2 shall survive the expiration or termination of this Lease. Unless the Lessee shall have exercised or been deemed to have exercised its Purchase Option or the Leased Property is to be sold to an independent purchaser, the Lessor shall be entitled to perform such investigation, including obtaining reports of engineers and other experts as to the condition and state of repair and maintenance of the Improvements and the Site required by this Section 22.2 and as to the compliance of the Leased Property with Applicable Laws, including Environmental Laws, as it deems appropriate. Lessee, at its sole cost and expense (without right of reimbursement therefor out of gross sale proceeds but, subject to the Lessee’s right to use applicable insurance and condemnation proceeds as set forth in Article XIII hereof), shall cause the repair or other remediation of any discrepancies between the actual condition of the Improvements and the Site and the condition required under this Lease, such repair or remediation to be completed not later than the Return Date.

SECTION 22.3. Application of Sale Proceeds and Recourse Payments.

(a) On the Return Date, in connection with the Lessee’s exercise of the Return Option, the Lessee shall pay to the Lessor all Rent then due together with all other amounts due and payable by the Lessee to the Lessor or any Indemnitee. The Lessee also shall cause to be paid to the Lessor, from the aggregate Sale Proceeds (after application of gross sale proceeds to payment of any deed or transfer tax thereon not paid by the purchaser thereof and payment or reimbursement to the Lessee and/or the Lessor for any costs or expenses incurred by the Lessee and/or the Lessor in connection with the actions required under Sections 22.1 and 22.2, excluding any provision thereof which expressly specifies that the Lessee’s costs shall not be reimbursable out of gross sale proceeds), the aggregate outstanding Break Even Price as of the Return Date (as determined after the payment of all Rent due on such date and application of all other payments hereunder by Lessee in accordance with Section 22.3(c) hereof). If the Sale Proceeds exceed the Break Even Price as of the Return Date, the Lessee shall retain or be entitled to receive the portion of the Sale Proceeds in excess thereof. If the Sale Proceeds are less than the aggregate outstanding Break Even Price, the Lessee shall pay or shall cause to be paid to the Lessor, as Supplemental Rent, on the Return Date, in addition to the Sale Proceeds, an additional amount equal to the lesser of (x) the amount that the Break Even Price exceeds the Sale Proceeds or, (y) provided no Default or Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which

 

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the Lessor has not yet commenced exercising remedies) has occurred and is continuing, the Recourse Deficiency Amount.

(b) The obligation of the Lessee to pay the amounts determined pursuant to Sections 22.3(a) and 22.4 shall be recourse obligations of the Lessee, and such payments by the Lessee shall not limit any other obligation of the Lessee under the Operative Documents, including pursuant to Article VII of the Participation Agreement.

(c) If on any date the Lessor shall receive any amounts that constitute payment of the Recourse Deficiency Amount and any Sale Proceeds following Lessee’s election to return or deemed election to have returned the Leased Property at the Return Date, the Lessor shall apply such amounts in the following order of priority:

first , to the Lessor, so much of such amount as is required to reimburse the Lessor for any fees, costs, expenses, Taxes or other loss incurred by it (to the extent not previously reimbursed);

second , to the Lessor, so much of such amounts as are required to pay all expenses or fees incurred by the Lessor in connection therewith including Break Funding Amounts, if any;

third , to the Lessor, so much of such amount as is required to pay all accrued Yield thereon;

fourth , to the Lessor, so much of such amounts as are required to pay in full the outstanding amount of the Lease Balance;

fifth , to the Lessor, so much of such amounts as are required to pay all outstanding obligations of Lessee pursuant to the Operative Documents including all indemnities due and payable; and

sixth , to Lessee, the balance of such amount, if any.

SECTION 22.4. Failure to Sell Leased Property.

(a) If the Leased Property shall not have been sold on or prior to the Return Date, in accordance with and subject to the provisions of this Article XXII, then the Lessee and the Lessor hereby agree as follows:

(i) the Lessee shall pay or shall cause to be paid to the Lessor, as Supplemental Rent, on the Return Date, in addition to the Sale Proceeds, an amount equal to the Recourse Deficiency Amount plus all other Rent then due under this Lease and the other Operative Documents or, in the event a Default or Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) shall have occurred and be continuing on such date, the Break Even Price and, in the case where the Break Even Price is paid, the Lessor shall convey to the Lessee or its designee the Leased Property in accordance with Section 23.11; and

 

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(ii) at the option of the Lessor, if the Lessee has not paid the Break Even Price as set forth in Section 22.4(a)(i) above, the Lessee shall be required to continue using commercially reasonable efforts as non-exclusive agent for the Lessor to sell the Leased Property in accordance with Sections 22.1 and 22.2 for the period (the “ Extended Remarketing Period ”) commencing on the Return Date, and ending on the earliest of (w) the date occurring twenty-fourth (24 th ) months following the Return Date, (x) the sale of the Leased Property in accordance with the provisions of Sections 22.1 and 22.2 or such earlier date as the Lessor has received payment in full of the Break Even Amount, (y) the delivery of a written notice from the Lessor to the Lessee at any time terminating this Lease, which notice shall indicate that such termination is being made pursuant to this Section 22.4(a)(ii) and the date such termination shall be effective, and (z) the delivery of a written notice from the Lessee to the Lessor pursuant to which the Lessee notifies the Lessor of its election to terminate the Extended Remarketing Period. The notice given by the Lessee pursuant to Section 22.4(a)(ii)(z) shall indicate that it is being made pursuant to Section 22.4(a)(ii)(z) and shall set forth the date of termination of the Extended Remarketing Period; provided, however, in no event shall such effective date occur prior to the twenty-fourth (24 th ) month following the Return Date. On the last day of the Extended Remarketing Period, if the Leased Property has not been sold during the Extended Remarketing Period in accordance with Section 22.2, the Lessee shall also make the payments required under Section 22.4(a), to the extent not already paid under such Section. Nothing in this Section 22.4(a)(ii) shall adversely affect any other rights the Lessor may have to terminate this Lease pursuant to any other Section of this Lease or the Lessor’s right to pursue any remedy hereunder as a result of an Event of Default arising as a result of the Lessee’s failure to comply with the requirements set forth herein including pursuant to Article XVII or the Lessee’s obligation to pay amounts arising under Article VII of the Participation Agreement.

(b) Following the expiration of the Extended Remarketing Period (or, if not so extended by Lessor, following the Return Date) and the absence of any sale of the Leased Property, the Lessor and Lessee will use commercially reasonable efforts to agree upon the Fair Market Value of the Leased Property. If the Lessor and Lessee are unable to agree upon the Fair Market Value of the Leased Property, Lessor shall order a valuation of the Fair Market Value of the Leased Property. Promptly after receipt of such valuation which establishes the Fair Market Value of Leased Property, Lessor shall pay to Lessee an amount equal to the lesser of (A) the Recourse Deficiency Amount paid by the Lessee in accordance with the Section 22.4(a)(i) and (B) the amount by which the Fair Market Value of the Leased Property exceeds the remaining Break Even Price, less any Force Majeure Losses (the lower of (A) and (B) being the “ Expiration True-Up ”).

(c) The Lessor may sell or lease the Leased Property and the Lessor’s other interest in and to the Leased Property to any third party at such reasonable times and for such amounts as the Lessor deems commercially reasonable and appropriate in order to maximize the Lessor’s opportunity to recover the Lease Balance. If the Lessee returns the Leased Property to the Lessor in accordance with this Section 22.4 and, following the expiration of the Extended Remarketing Period, the Lessor subsequently sells the Leased Property for cash Sale Proceeds, Sale Proceeds shall be applied by the Lessor in the following order of priority:

 

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(i) first , to the Lessor, Sale Proceeds shall be applied to any fees, costs, expenses, Taxes or other loss incurred by it (to the extent not previously reimbursed);

(ii) second , to the Lessor, Sale Proceeds shall be applied to the Lease Balance until the Lease Balance (excluding Force Majeure Losses, if any) is paid in full ( provided that , all costs and expenses arising from or related to the Leased Property which accrue after the later of the Return Date and the date the Lessee ceases to occupy the Leased Property shall be excluded from the Lease Balance for purposes of this Section 22.4(c)(ii));

(iii) third , to the Lessee, Sale Proceeds shall be applied to the Recourse Deficiency Amount ( less the Expiration True-Up), if any, to the extent such amounts were paid by the Lessor to the Lessee in accordance with Section 22.4(b);

(iv) fourth , to the Lessor, Sale Proceeds shall be applied to Force Majeure Losses and, to the extent not previously paid to the Lessor pursuant to clause (i) or clause (ii) above, to any other amounts payable to the Lessor pursuant to any expense reimbursement or indemnification by the Lessee pursuant to the provisions of the Operative Documents;

(v) fifth , to the Lessor, Sale Proceeds shall be applied to any costs or expenses excluded from the Lease Balance as a result of the proviso in Section 22.4(c)(ii) above;

(vi) sixth , to the Lessor, Sale Proceeds shall be applied to all other amounts, if any, payable by the Lessee to the Lessor under the Operative Documents, to the extent not previously paid to the Lessor pursuant to clauses (i), (ii), (iv) or (v) above; and

(vii) seventh , to the Lessee, the balance, if any, of any Sale Proceeds shall be distributed to, or as directed by, the Lessee.

(d) The Lessor’s appointment of the Lessee as the Lessor’s non-exclusive agent to use commercially reasonable efforts to obtain the highest all-cash price for the purchase of the Leased Property and the Lessor’s interest in the Leased Property shall not restrict the Lessor’s right to market or lease the Leased Property and the Lessor’s interest in the Leased Property or to retain one or more sales agents or brokers (with the costs and expenses thereof being paid out of the Sale Proceeds, as provided in Sections 22.1(a) and 22.3(a) hereof).

(e) the Lessor reserves all rights under this Lease and the other Operative Documents arising out of the Lessee’s breach of any provisions of this Lease (including this Article XXII), whether occurring prior to, on or after the Return Date, including the Lessee’s breach of any of its obligations under this Article XXII, including the right to sue the Lessee for damages.

(f) To the greatest extent permitted by Applicable Law, the Lessee hereby unconditionally and irrevocably waives, and releases the Lessor from, any right to require the Lessor at any time prior to the Return Date or the expiration of the Extended Remarketing Period, as applicable, to market the Leased Property and the Lessor’s other interest in and to the Leased Property at all or for any minimum purchase price or on any particular terms and conditions, the Lessee hereby agrees that if the Lessee shall elect or shall be deemed to have

 

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elected the Return Option, its ability to sell the Leased Property and the Lessor’s other interest in and to the Leased Property on or prior to the Return Date, and to cause any Person to submit a bid to the Lessor pursuant to Section 22.1 shall constitute full and complete protection of the Lessee’s interest hereunder.

(g) During the period following Lessee’s exercise of the Return Option, the obligation of Lessee to pay Rent with respect to the Leased Property (including the installment of Rent due on the Return Date) shall continue undiminished; provided that such amounts subsequent to the Return Date (assuming the Lessee has returned the property to the Lessor) shall accrue and be payable out of the Sale Proceeds of any sale in accordance with Section 22.4(c)(v).

SECTION 22.5. Surrender and Return.

(a) Upon the expiration or earlier termination of the Lease Term, and provided that Lessee, if so entitled, has not exercised its option to purchase the Leased Property, Lessee shall peaceably leave and surrender and return the Leased Property to Lessor in the same condition in which the Leased Property existed on the Closing Date and such subsequent date on which any Alterations that constitute part of the Improvements were constructed, except as completed, repaired, rebuilt, restored, altered or added to as required by or permitted by any provision of this Lease (ordinary wear and tear excepted). Lessee shall remove from the Leased Property on or prior to such expiration or earlier termination all property situated thereon which is not the property of Lessor and the Leased Property shall be broom clean and Lessee shall repair any damage caused by such removal. Property not so removed shall become the property of Lessor and Lessor may cause such property to be removed from the Leased Property and disposed of, and Lessee shall pay (without right of reimbursement out of gross sale proceeds) the reasonable cost of any such removal and disposition and of repairing any damage caused by such removal.

(b) Except for surrender upon the expiration or earlier termination of the Lease Term hereof, no surrender to Lessor of this Lease or of the Leased Property shall be valid or effective unless agreed to and accepted in writing by Lessor.

(c) Without limiting the generality of the foregoing, upon the surrender and return of the Leased Property to Lessor pursuant to this Section 22.5, the Leased Property shall be (w) capable of being immediately utilized by a third-party purchaser or third-party lessee without further inspection, repair, replacement, alterations or improvements, licenses, permits, or approvals, except for any of the foregoing required solely by virtue of the change in ownership (other than to Lessor), use or occupancy of the Leased Property, (x) in compliance with all Applicable Laws including any of the foregoing required by virtue of a change in ownership, use or occupancy of the Leased Property other than to or by Lessee, (y) subject to any Shared Use Agreement, Appurtenant Rights and Restrictions or other cross easement agreement as may be necessary to comply with Applicable Laws, to make any such property marketable and to increase the aggregate value of the Leased Property and the other Sites, and (z) free and clear of any Lien. Until the Leased Property has been surrendered and returned to Lessor in accordance with the provisions of this Section 22.5, Lessee shall continue to pay Lessor all Rent due hereunder.

 

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(d) Lessee acknowledges and agrees that a breach of any of the provisions of this Section 22.5 may result in damages to Lessor that are difficult or impossible to ascertain and that may not be compensable at law. Accordingly, upon application to any court of equity having jurisdiction over the Leased Property or the Lessee, Lessor shall be entitled to a decree against Lessee requiring specific performance of the covenants of Lessee set forth in this Section 22.5.

(e) Upon the request of the Lessor, Lessee shall continue to maintain its insurance policies for the Leased Property, to the extent permitted by such policies, provided that Lessor pays or reimburses Lessee for the pro rata cost thereof.

ARTICLE XXIII

MISCELLANEOUS

SECTION 23.1. Binding Effect; Successors and Assigns; Survival.

The terms and provisions of this Lease, and the respective rights and obligations hereunder of the Lessor and the Lessee shall be binding upon them and their respective successors, legal representatives and assigns (including, in the case of the Lessor, any Person to whom the Lessor may transfer the Leased Property or any interest therein in accordance with the provisions of the Operative Documents), and inure to their benefit and the benefit of their respective permitted successors, legal representatives and assigns (including, in the case of the Lessor, any Person to whom the Lessor may transfer the Leased Property or any interest therein in accordance with the provisions of the Operative Documents).

SECTION 23.2. Severability.

Any provision of this Lease that shall be prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction, and the Lessee shall remain liable to perform its obligations hereunder except to the extent of such unenforceability. To the extent permitted by Applicable Laws, the Lessee hereby waives any provision of law that renders any provision hereof prohibited or unenforceable in any respect.

SECTION 23.3. Notices.

Unless otherwise specified herein, all notices, requests, demands or other communications to or upon the respective parties hereto shall be in writing and shall be delivered and shall be deemed to have been given in accordance with Section 8.3 of the Participation Agreement.

SECTION 23.4. Amendment; Complete Agreements.

Neither this Lease or any other Operative Document nor any terms hereof or thereof may be amended, supplemented or modified except in accordance with the provisions of the Participation Agreement. This Lease, together with the other Operative Documents, is intended

 

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by the parties as a final expression of their agreement and as a complete and exclusive statement of the terms thereof, all negotiations, considerations and representations between the parties having been incorporated herein and therein. No course of prior dealings between the parties or their officers, employees, agents or Affiliates shall be relevant or admissible to supplement, explain, or vary any of the terms of this Lease or any other Operative Document. Acceptance of, or acquiescence in, a course of performance rendered under this or any prior agreement between the parties or their Affiliates shall not be relevant or admissible to determine the meaning of any of the terms of this Lease or any other Operative Document. No representations, undertakings, or agreements have been made or relied upon in the making of this Lease other than those specifically set forth in the Operative Documents.

SECTION 23.5. Headings.

The Table of Contents and headings of the various Articles and Sections of this Lease are for convenience of reference only and shall not modify, define or limit any of the terms or provisions hereof.

SECTION 23.6. Original Executed Counterpart.

The single executed original of this Lease marked as Counterpart No. 1 shall be the “ original executed counterpart ” of this Lease. To the extent that this Lease constitutes chattel paper, as such term is defined in the Uniform Commercial Code as in effect in any applicable jurisdiction, no security interest in this Lease may be created through the transfer or possession of any counterpart other than the “ original executed counterpart .”

SECTION 23.7. Governing Law.

This Lease has been delivered in, and shall in all respects be governed by and construed in accordance with the laws of, the State of New York, without regard to conflicts of laws principles (except Section 5-1401 of the New York General Obligations Law), including all matters of construction, validity and performance, except as to matters relating to the perfection of the security interests hereunder and the exercise of rights and remedies with respect thereto, which shall be governed by and construed in accordance with the laws of the State of California.

SECTION 23.8. No Joint Venture.

Any intention to create a joint venture or partnership relation hereunder or pursuant to any other Operative Document between the Lessor and the Lessee is hereby expressly disclaimed.

SECTION 23.9. No Accord and Satisfaction.

The acceptance by the Lessor of any sums from the Lessee (whether as Basic Rent or otherwise) in amounts which are less than the amounts due and payable by the Lessee hereunder is not intended, nor shall be construed, to constitute an accord and satisfaction of any dispute between the Lessor and the Lessee regarding sums due and payable by the Lessee hereunder, unless the Lessor specifically deems it as such in writing.

 

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SECTION 23.10. Survival.

The termination of this Lease pursuant to Section 18.1 shall in no event relieve the Lessee of its liabilities and obligations hereunder which accrued prior to such termination, all of which shall survive any such termination. The extension of any applicable statute of limitations by the Lessee, the Lessor or any other Indemnitee shall not affect such survival.

SECTION 23.11. Transfer of Leased Property.

Except as may be applicable under Article XXII, any transfer of the Leased Property pursuant to this Lease shall be at the Lessee’s expense. Upon receipt by the Lessor of payment in full of the Break Even Price pursuant to the applicable provision of this Lease, the Leased Property shall be transferred to the Lessee or any designee it may identify.

Any transfer of the Lessor’s interest in and to the Leased Property pursuant to this Lease shall be transferred on an “as is, where is, with all faults” basis, without covenants or warranties of title and without recourse, representation or warranty of any kind, other than with respect to the Lessor, the absence of Lessor Liens, and together with the due assumption by the Lessee (or its designee), of, and due release of the Lessor from, all obligations relating to the Leased Property. In connection with any transfer to an independent third party, the Lessee shall, or shall ensure that its designee shall, execute and deliver such documents, certificates and estoppels as may be required to facilitate the transfer of the Leased Property. Any provision in this Lease or other Operative Document to the contrary notwithstanding, no transfer of the Leased Property to the Lessee or to a third party buyer pursuant to the Return Option shall be made until the Lessor has received all Rent and other amounts then due and owing by the Lessee hereunder and under the other Operative Documents. At or subsequent to the transfer or return of all or any of the Leased Property to a third party buyer pursuant to the Return Option, the Lessee will provide the Lessor with such lien and title searches as the Lessor may reasonably request to demonstrate to the Lessor’s satisfaction that the Leased Property is subject to no liens other than Permitted Liens as described in clauses (a) or (b) of the definition thereof. Notwithstanding anything contained herein or in the other Operative Documents to the contrary, any obligation of the Lessor to transfer any assets to the Lessee shall be satisfied by a transfer of such assets to any designee selected by it.

SECTION 23.12. Enforcement of Certain Warranties.

Unless an Event of Default shall have occurred and be continuing, the Lessor authorizes the Lessee (directly or through agents), without assuming any responsibility for the existence of such warranty or the validity of the authorization granted hereunder at the Lessee’s expense, to assert, during the Lease Term, all of the Lessor’s rights (if any) under any applicable warranty and any other claim that the Lessee or the Lessor may have under the warranties provided in connection with the Improvements and the Lessor agrees to cooperate, at the Lessee’s expense, with the Lessee and its agents in asserting such rights. Any amount recovered by the Lessee under any such warranties shall be retained by or paid over to the Lessee, subject to Section 23.13.

 

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SECTION 23.13. Security Interest in Funds.

As long as a Material Default or Event of Default shall have occurred and be continuing, any amount that would otherwise be payable to the Lessee under the Operative Documents shall be paid to or retained by the Lessor (including amounts to be paid to the Lessee pursuant to Article XIII or Section 23.12) as security for the performance by the Lessee in full of its obligations under this Lease and the other Operative Documents and, provided an Event of Default exists, it may be applied to the obligations of the Lessee hereunder and under the other Operative Documents and distributed pursuant to Section 18.2. At such time as no Material Default or Event of Default shall be continuing, such amounts, net of any amounts previously applied to the Lessee’s obligations hereunder or under any other Operative Documents, shall be paid to the Lessee. Any such amounts which are held pending payment to the Lessee or application hereunder shall be invested by the Lessor as directed from time to time in writing by the Lessee, and at the expense and risk of the Lessee, in Permitted Investments. Any gain (including interest received) realized as the result of any such investment (net of any fees, commissions and other expenses, if any, incurred in connection with such investment) shall be applied from time to time in the same manner as the principal invested. Lessor shall not be liable for any losses on such investments or for any failure to make any investment,

SECTION 23.14. Submission to Jurisdiction.

EACH OF THE LESSOR AND THE LESSEE IRREVOCABLY AND UNCONDITIONALLY:

(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS LEASE, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, AND APPELLATE COURTS FROM ANY THEREOF;

(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDINGS MAY BE BROUGHT TO SUCH COURTS, AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND AGREES NOT TO PLEAD OR CLAIM THE SAME;

(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS SET FORTH ON SCHEDULE II TO THE PARTICIPATION AGREEMENT OR AT SUCH OTHER ADDRESS OF WHICH THE OTHER PARTIES HERETO SHALL HAVE BEEN NOTIFIED PURSUANT TO SECTION 8.3 OF THE PARTICIPATION AGREEMENT; AND

 

40


(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION.

SECTION 23.15. Jury Trial.

EACH OF THE LESSOR AND THE LESSEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS LEASE OR ANY OTHER OPERATIVE DOCUMENT OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS LEASE OR ANY OTHER OPERATIVE DOCUMENT AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.

SECTION 23.16. Payments.

All payments to be made by the Lessee hereunder shall be made to the Lessor in Dollars in immediately available and freely transferable funds at the place of payment, all such payments to be paid without setoff, counterclaim or reduction and without deduction for, and free from, any and all present or future taxes, levies, imposts, duties, fees, charges, deductions, withholding or liabilities with respect thereto or any restrictions or conditions of any nature. If the Lessee is required by law to make any deduction or withholding on account of any tax or other withholding or deduction from any sum payable by the undersigned hereunder, the Lessee shall pay any such tax or other withholding or deduction and shall pay such additional amount necessary to ensure that, after making any payment, deduction or withholding, the Lessor shall receive and retain (free of any liability in respect of any payment, deduction or withholding) a net sum equal to what it would have received and so retained hereunder had no such deduction, withholding or payment been required to have been made, which payment or withholding is made subject to the limitations set forth in Sections 7.2(a)(iii) and 7.4 of the Participation Agreement, reimbursement obligations of Indemnitees set forth in Sections 7.2(a)(iii), 7.2(e) and 7.2(f) of the Participation Agreement and other rights of Lessee set forth in Sections 7.2(b)(i), 7.2(e), 7.2(f) and 7.4 of the Participation Agreement.

[Signature Pages Follow]

 

41


IN WITNESS WHEREOF, the undersigned have each caused this Lease to be duly executed and delivered by their respective representations thereunto duly authorized as of the day and year first above written.

 

BTMU CAPITAL LEASING & FINANCE, INC.,
AS L ESSOR
By:  

/s/ Michael D. Doyle

Name:   Michael D. Doyle
Title:   President

 

[THIS IS COUNTERPART NO.      OF      ORIGINALLY

EXECUTED COUNTERPARTS]


LAM RESEARCH CORPORATION,
AS L ESSEE
By:  

/s/ Odette Go

Name:   Odette Go
Title:   Treasurer

 

[THIS IS COUNTERPART NO.      OF      ORIGINALLY

EXECUTED COUNTERPARTS]


Schedule A

Recourse Deficiency Amount Percentages

Recourse Deficiency Amount for Fremont 3: 87.1%.


Exhibit A

Description of Site

Real Property in the City of Fremont, County of Alameda, State of California and described as follows:

BEING ALL OF LOT 3 AND A PORTION OF LOT 4, AS SHOWN ON THE PARCEL MAP 5001 FILED IN BOOK 168 OF MAPS, AT PAGES 24 THROUGH 26, ALAMEDA COUNTY RECORDS, DESCRIBED AS FOLLOWS:

BEGINNING ON THE SOUTHERLY LINE OF CUSHING PARKWAY AT THE MOST WESTERLY CORNER OF SAID LOT 3;

THENCE FROM SAID POINT OF BEGINNING, ALONG SAID SOUTHERLY LINE OF CUSHING PARKWAY, NORTH 82° 48’ 27” EAST, 541.20 FEET TO THE BEGINNING OF A CURVE TO THE LEFT;

THENCE CONTINUING ALONG SAID SOUTHERLY LINE OF CUSHING PARKWAY, ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 1° 25’ 35”, HAVING A RADIUS OF 2044.00 FEET AND AN ARC DISTANCE OF 50.89 FEET;

THENCE LEAVING SAID SOUTHERLY LINE OF CUSHING PARKWAY, THE FOLLOWING THREE (3) COURSES:

SOUTH 7° 11’ 33” EAST, 245.00 FEET;

NORTH 82° 48’ 27” EAST, 31.00 FEET; AND

SOUTH 7° 11’ 33” EAST, 353.79 FEET TO THE SOUTHERLY LINE OF SAID LOT 4;

THENCE ALONG THE SOUTHERLY LINE OF SAID LOT 4 AND LOT 3, SOUTH 85° 58’ 33” WEST, 624.04 FEET TO THE WESTERLY LINE OF SAID LOT 3;

THENCE ALONG SAID WESTERLY LINE, NORTH 7° 11’ 33” WEST, 563.66 FEET TO THE POINT OF BEGINNING.

Exhibit 10.22

Fremont 3         

PLEDGE AGREEMENT

(Fremont 3)

BETWEEN

LAM RESEARCH CORPORATION

(“LRC”)

AND

BTMU CAPITAL LEASING & FINANCE, INC.

(“BTMUCLF”)

December 31, 2013


TABLE OF CONTENTS

 

         Page  
1.  

DEFINITIONS AND INTERPRETATION

     2   
 

(A)

  

Definitions

     2   
 

(B)

  

Rules of Interpretation

     8   
 

(C)

  

Attachments

     8   
2.  

PLEDGE AND GRANT OF SECURITY INTEREST

     9   
3.  

PROVISIONS CONCERNING THE DEPOSIT TAKERS

     9   
 

(A)

  

Deposit Taker Agreements

     9   
 

(B)

  

Qualification of Deposit Takers Generally

     10   
 

(C)

  

Substitutions for Disqualified Deposit Takers

     10   
 

(D)

  

Other Voluntary Substitutions of Deposit Takers

     10   
 

(E)

  

Delivery of Deposit Taker’s Agreements by LRC and BTMUCLF

     11   
 

(F)

  

Constructive Possession of Collateral

     11   
 

(G)

  

Attempted Setoff by Deposit Taker

     11   
4.  

DELIVERY AND MAINTENANCE OF COLLATERAL

     11   
 

(A)

  

Delivery of Cash Collateral by LRC

     12   
 

(B)

  

Status of the Deposit Accounts Under the Reserve Requirement Regulations

     12   
 

(C)

  

Acknowledgment by LRC that Requirements of this Agreement are Commercially Reasonable

     12   
5.  

WITHDRAWAL OF COLLATERAL

     12   
 

(A)

  

Withdrawal of Cash Collateral Upon the Occurrence and During the Continuance of an Event of Default

     12   
 

(B)

  

Withdrawal and Application of Cash Collateral to Reduce or Satisfy the Secured Obligations to BTMUCLF

     12   
 

(C)

  

Withdrawal and Return of Cash Collateral Following Satisfaction of all Secured Obligations

     13   
 

(D)

  

No Other Right to Require or Make Withdrawals

     13   
 

(E)

  

BTMUCLF’s Covenant Not to Make Unauthorized Withdrawals

     13   
6.  

REPRESENTATIONS AND COVENANTS OF LRC

     13   
 

(A)

  

Representations of LRC

     13   
 

(B)

  

Covenants of LRC

     15   
7.  

AUTHORIZED ACTION BY BTMUCLF

     16   

 

-i-


TABLE OF CONTENTS

(continued)

 

         Page  

8.

 

DEFAULT AND REMEDIES

     16   
 

(A)

  

Remedies

     16   
 

(B)

  

Recovery Not Limited

     18   

9.

 

MISCELLANEOUS

     19   
 

(A)

  

Payments by LRC to BTMUCLF

     19   
 

(B)

  

Payments by BTMUCLF to LRC

     19   
 

(C)

  

Cumulative Rights, etc.

     19   
 

(D)

  

Survival of Agreements

     20   
 

(E)

  

Other Liable Party

     20   
 

(F)

  

Termination

     20   

 

-ii-


PLEDGE AGREEMENT

(FREMONT 3)

This PLEDGE AGREEMENT (Fremont 3) (this “ Agreement ”), dated as of December 31, 2013 (the “ Effective Date ”), is made by and between BTMU CAPITAL LEASING & FINANCE, INC. (“ BTMUCLF ”), a Delaware corporation, and LAM RESEARCH CORPORATION (“ LRC ”), a Delaware corporation.

RECITALS

A. LRC, as lessee, and BTMUCLF, as lessor, are parties to that certain Amended and Restated Lease Agreement (Fremont 3), dated of even date herewith (as amended, supplemented or otherwise modified from time to time pursuant thereto, the “Lease” ), pursuant to which the Lessee has agreed to lease from the Lessor, and the Lessor has agreed to lease to the Lessee, the Leased Property described therein.

B. LRC and BTMUCLF are also parties to that certain Participation Agreement, dated of even date herewith (as amended, supplemented or otherwise modified, the “ Participation Agreement ”) pursuant to which BTMUCLF commits to advance funds for the acquisition of Site Fremont 3 and the Existing Improvements thereon and the Personal Property used thereon subject to the terms and conditions set forth therein.

C. By this Agreement, BTMUCLF and LRC desire to establish the terms and conditions upon which LRC is pledging cash collateral for its obligations to BTMUCLF under the Lease and the Participation Agreement.

AGREEMENTS

 

1. DEFINITIONS AND INTERPRETATION.

(A) Definitions . As provided in the recitals above, all capitalized terms used in this Agreement which are defined in the Participation Agreement and not otherwise defined herein shall have the same meanings herein as set forth in Appendix I to the Participation Agreement. All terms used in this Agreement which are defined in the UCC and not otherwise defined herein shall have the same meanings herein as set forth therein, except where the context otherwise requires. As used in this Agreement, the following terms shall have the following respective meanings:

Account Office ” means, with respect to any Deposit Account maintained by any Deposit Taker, the office of such Deposit Taker in California or New York at which such Deposit Account is maintained as specified in the applicable Deposit Taker’s Agreement.

BTMU ” means The Bank of Tokyo-Mitsubishi UFJ, Ltd.

BTMU Downgrade Event ” means BTMU or any successor of BTMU fails to maintain a debt rating of at least (i) BBB- (in the case of long term debt) by Standard and Poor’s Corporation (the “S&P Rating” ), and (ii) Baa3 (in the case of long term debt) by

 

2


Moody’s Investor Service, Inc. (the “Moody Rating” ) and LRC shall elect to require that the Collateral held by BTMU to be transferred to an Eligible Deposit Taker pursuant to Section 3(C) hereof, provided that (i) such transferee shall satisfy the requirements of an Eligible Deposit Taker and (ii) LRC, Lessor and such replacement Eligible Deposit Taker have entered into a control agreement in form reasonably acceptable to all parties thereto. The parties hereto believe that it is improbable that the ratings systems used by Standard and Poor’s Corporation and by Moody’s Investor Service, Inc. will be discontinued or changed, but if such ratings systems are discontinued or changed, LRC shall be entitled to select and use a comparable ratings systems as a substitute for the S&P Rating or the Moody Rating, as the case may be, for purposes of determining the status of BTMU or such successor as an Eligible Deposit Taker.

BTMUCLF ” shall have the meaning given to that term in the introductory paragraph hereof.

Cash Collateral ” means (i) all money of LRC which LRC delivers to BTMUCLF or as directed by it for deposit in the Deposit Accounts maintained by the Deposit Takers pursuant to this Agreement, and (ii) all amounts on deposit in any of the Deposit Accounts from time to time, which have not been withdrawn or applied to Secured Obligations as provided in this Agreement.

Clearing System ” means the Depository Trust Company (“DTC”) and such other clearing or safekeeping system that may from time to time be used in connection with transactions relating to or the custody of any Securities, and any depository for any of the foregoing.

Collateral ” has the meaning indicated in Paragraph 2.

“Control Agreement” means any future blocked account control agreement that may be used by a Deposit Taker following any credit impairment as provided in the definition of Eligible Deposit Taker.

“Default” means any Event of Default and any default, event or condition which would, with the giving of any requisite notices and the passage of any requisite periods of time, constitute an Event of Default.

“Deposit Account” means a deposit account maintained by any Deposit Taker into which Cash Collateral has been or may in the future be deposited as provided in this Agreement.

Deposit Taker means, for BTMUCLF or any Participant, an Eligible Deposit Taker designated by it to act as the Deposit Taker for it under this Agreement. BTMUCLF has already designated BTMU as the Deposit Taker for BTMUCLF hereunder. Any Participant which is an Eligible Deposit Taker will be deemed to have designated itself to act as the Deposit Taker for it, unless some other designation is expressly set forth in this Agreement. Any Participant which is not an Eligible Deposit Taker will be expected to designate BTMU or, to the extent BTMU is not an Eligible Deposit Taker, another Person

 

3


which is an Eligible Deposit Taker (as reasonably approved by LRC) prior to any delivery of Cash Collateral by LRC pursuant to this Agreement. It is also understood, however, that each of BTMUCLF and any Participants, for itself only, may from time to time designate another Eligible Deposit Taker (as reasonably approved by LRC) as provided in subparagraphs 3(C) and 3(D) below.

“Deposit Taker Prerequisites” means, with respect to any Deposit Taker: (1) the requirement that such Deposit Taker establish a Deposit Account and provide to LRC and BTMUCLF the account number and other information regarding such Deposit Account which they must have to complete and submit a Deposit Taker’s Agreement covering such Deposit Account; and (2) the requirement that such Deposit Taker accept, execute and return a Deposit Taker’s Agreement covering each Deposit Account to be maintained by such Deposit Taker. It is understood that any Deposit Taker’s refusal or failure to satisfy the Deposit Taker Prerequisites will cause it to be a Disqualified Deposit Taker.

“Deposit Taker’s Agreement” means a completed Deposit Agreement in the form attached as Exhibit A , which specifically identifies a Deposit Account in which a Deposit Taker shall hold Cash Collateral delivered to it pursuant to this Agreement.

“Disqualified Deposit Taker” means any Person that BTMUCLF or any Participant has designated as a Deposit Taker, but that has not satisfied or no longer satisfies the following requirements:

(a) With respect to each Deposit Account in which such Person holds or will hold Collateral delivered to it pursuant to this Agreement, such Person must have received from BTMUCLF and LRC an executed Deposit Taker’s Agreement which specifically identifies such Deposit Account and which designates, at such Person’s election, an Account Office with respect to such Deposit Account in New York or California.

(b) Such Person must have executed and returned to BTMUCLF a Deposit Taker’s Agreement with respect to each such Deposit Account and must have complied with its Deposit Taker’s Agreements, and the representations set forth therein with respect to such Person must continue to be true and correct (except that such Person will not become a Disqualified Deposit Taker because of its failure to comply with its Deposit Taker’s Agreement, or because any such representation does not continue to be true and correct, if such failure is cured and all such representations are made true and correct in all material respects before the earlier of (i) thirty days after the Deposit Taker is notified thereof, and (ii) any date upon which BTMUCLF’s security interest in any Collateral maintained or held by such Deposit Taker is not a Qualified Pledge by reason of such failure to comply or such representation not being true and correct). Such Person must have complied in all material respects with the provisions in this Agreement applicable to Deposit Takers.

 

4


(c) Such Person must be an Eligible Deposit Taker.

“Eligible Deposit Taker” means:

(1) (a) BTMU or any successor of BTMU, acting through any branch, office or agency in New York or California that can lawfully maintain a Deposit Account as a Deposit Taker hereunder so long as no BTMU Downgrade Event shall occur or (b) Union Bank, N.A. or any successor of Union Bank, N.A., acting through any branch, office or agency in New York or California that can lawfully maintain a Deposit Account as a Deposit Taker hereunder so long as no Union Bank Downgrade Event shall occur;

(2) any Participant or Affiliate of a Participant that is (a) a commercial bank, organized under the laws of the United States of America or a state thereof or under the laws of another country which is doing business in the United States of America, (b) authorized to maintain deposit accounts for others through Account Offices in New York or California (as specified in its Deposit Taker’s Agreement) so long as no Participant Downgrade Event shall occur; or

(3) such Person that (a) has been designated by BTMUCLF or a Participant to act as the Deposit Taker for it under this Agreement, (b) is one of the fifty largest (measured by total assets) U.S. banks, or one of the one hundred largest (measured by total assets) banks in the world, (c) is acting through any branch, office or agency in New York or California that can lawfully maintain a Deposit Account as a Deposit Taker hereunder, and (d) has a debt ratings of at least (i) A- (in the case of long term debt) and A-1 (in the case of short term debt) or the equivalent thereof by Standard and Poor’s Corporation (the “S&P Rating” ), and (ii) A3 (in the case of long term debt) and P-1 (in the case of short term debt) or the equivalent thereof by Moody’s Investor Service, Inc. (the “Moody Rating” ), the parties hereto believing that it is improbable that the ratings systems used by Standard and Poor’s Corporation and by Moody’s Investor Service, Inc. will be discontinued or changed, but if such ratings systems are discontinued or changed, LRC shall be entitled to select and use a comparable ratings systems as a substitute for the S&P Rating or the Moody Rating, as the case may be, for purposes of determining the status of any bank as an Eligible Deposit Taker.

If at any time a Deposit Taker fails to satisfy the requirements of this definition above, such Deposit Taker shall cease being an Eligible Deposit Taker and LRC may, at its option, require that the Collateral held by such ineligible Deposit Taker be transferred to an Eligible Deposit Taker, provided that (i) such Eligible Deposit Taker satisfies the requirements of this definition above and (ii) LRC, Lessor and such replacement Eligible Deposit Taker have entered into a control agreement in form reasonably acceptable to all parties thereto.

 

5


“Event of Default” means the occurrence of any of the following:

(a) an Event of Default as defined in the Lease;

(b) any failure by LRC to provide funds as and when required by subparagraph 4(A) of this Agreement or under the Deposit Taker’s Agreement, on the date due;

(c) the failure of the pledge or security interest contemplated herein in any Deposit Account or Cash Collateral to be a Qualified Pledge (regardless of the characterization of any Deposit Accounts or Cash Collateral as deposit accounts, instruments or general intangibles under the UCC); unless, within five days after LRC becomes aware of such failure, LRC both (1) notifies BTMUCLF of such failure, and (2) cures such failure;

(d) the failure of any representation herein by LRC to be true (other than a failure described in another clause of this definition of Event of Default) and LRC and LRC shall fail to cure the underlying facts causing such representation, warranty, certification or statement to be incorrect in all material respects for a period of ten (10) Business Days after the earlier of Actual Knowledge or notice thereof;

(e) the failure of any representation made by LRC in subparagraph 6(A)(1) to be true, if within fifteen days after LRC becomes aware of such failure, LRC does not (1) notify BTMUCLF of such failure, and (2) cure such failure; and

(f) the failure by LRC timely and properly to observe, keep or perform any covenant, agreement, warranty or condition herein required to be observed, kept or performed (other than a failure described in another clause of this definition of Event of Default), if diligent efforts are not being taken by LRC to cure such Default and such failure is not cured within thirty (30) days after the earlier of Actual Knowledge thereof by LRC or receipt of written notice thereof; provided, however, that if such failure is capable of cure but cannot be cured by payment of money or cannot be cured by diligent efforts within such thirty (30) day period but such diligent efforts shall be properly commenced within such thirty (30) day period and LRC is diligently pursuing, and shall continue to pursue diligently remedy of such failure, such cure period shall be extended for an additional period of time in excess of such cure period as may be necessary to cure, not to extend beyond the earlier to occur of (i) the Lease Expiration Date or (ii) one hundred and twenty (120) days after the earlier of Actual Knowledge thereof or written notice thereof having been given to LRC.

“Lien” means, with respect to any property or assets, any right or interest therein of a creditor to secure indebtedness or other obligations of any kind which is owed to him or any other arrangement with such creditor which provides for the payment of such indebtedness or obligations out of such property or assets or which allows him to have such indebtedness or obligations satisfied out of such property or assets prior to the general creditors of any owner thereof, including any lien, mortgage, security interest, pledge,

 

6


deposit, production payment, rights of a vendor under any title retention or conditional sale agreement or lease substantially equivalent thereto, tax lien, mechanic’s or materialman’s lien, or any other charge or encumbrance for security purposes, whether arising by law or agreement or otherwise, but excluding any right of setoff which arises without agreement in the ordinary course of business. “Lien” also means any filed financing statement, any registration with an issuer of uncertificated securities, or any other arrangement which would serve to perfect a Lien described in the preceding sentence, regardless of whether such financing statement is filed, such registration is made, or such arrangement is undertaken before or after such Lien exists.

Make Whole Amount ” means the sum of the following:

(1) the amount (if any) by which the Lease Balance exceeds any Recourse Deficiency Amount which was actually received by BTMUCLF on the Base Term Expiration Date in accordance with Articles XXI and XXII of the Lease, together with interest on such excess computed at the Overdue Rate for the period commencing on the Base Term Expiration Date and ending on the date of an Expiration True-Up; plus

(2) any unpaid Base Rent or other amounts due to BTMUCLF pursuant to the Lease or other Operative Documents (except pursuant to Other Lease Documents); plus

(3) BTMUCLF’s Transaction Costs; plus

(4) the amount, but not less than zero, by which (i) all Taxes, insurance premiums and other Claims of every kind suffered or incurred by BTMUCLF (whether or not reimbursed in whole or in part by another Person) with respect to the ownership, operation or maintenance of the Leased Property during the Extended Remarketing Period, exceeds (ii) any rents or other sums collected by BTMUCLF during such period from third parties as consideration for any lease or other contracts made by BTMUCLF that authorize the use and enjoyment of the Leased Property by such parties; together with interest on such excess computed at the Overdue Rate for each day prior to the Base Term Expiration Date.

“Other Liable Party” means any Person, other than LRC, who may now or may at any time hereafter be primarily or secondarily liable for any of the Secured Obligations or who may now or may at any time hereafter have granted to BTMUCLF a Lien against any of its assets to secure any Secured Obligations.

“Participant” means, with respect to the Lease, any Participation Holder as defined in Section 6.4 of the Participation Agreement.

Participant Downgrade Event ” means Participant or any successor of Participant fails to maintain a debt rating of at least (i) BBB- (in the case of long term debt) by Standard and Poor’s Corporation (the “S&P Rating” ), and (ii) Baa3 (in the case of long term debt) by Moody’s Investor Service, Inc. (the “Moody Rating” ) and LRC shall elect to require that the Collateral held by Participant to be transferred to an Eligible Deposit Taker pursuant to Section 3(C) hereof, provided that (i) such transferee shall satisfy the requirements of an Eligible Deposit Taker and (ii) LRC, Lessor and such replacement Eligible Deposit Taker

 

7


have entered into a control agreement in form reasonably acceptable to all parties thereto. The parties hereto believe that it is improbable that the ratings systems used by Standard and Poor’s Corporation and by Moody’s Investor Service, Inc. will be discontinued or changed, but if such ratings systems are discontinued or changed, LRC shall be entitled to select and use a comparable ratings systems as a substitute for the S&P Rating or the Moody Rating, as the case may be, for purposes of determining the status of Participant or such successor as an Eligible Deposit Taker.

“Percentage” means with respect to each Participant and the Deposit Taker for such Participant, the percentage obtained by dividing (x) the amount of the outstanding Equity Investment assumed by such Participant pursuant to Section 6.4 of the Participation Agreement by (y) the aggregate amount of the Equity Investment of the Participants. Percentages may be adjusted from time to time as provided in the Participation Agreement or as provided in supplements thereto executed as provided in the Participation Agreement.

“Qualified Pledge” means a pledge or security interest that constitutes a valid, perfected, first priority pledge or security interest.

“Secured Obligations” means and includes all obligations of LRC under the Operative Documents (except with respect to the Other Lease Documents) including, without limitation, (i) LRC’s obligation to pay the Recourse Deficiency Amount as provided in Article XXII of the Lease, (ii) LRC’s obligation to pay the Break Even Price as the purchase price for the Leased Property pursuant to Sections 20.1, 20.2 or 21.1(a) of the Lease, and (iv) any damages incurred by BTMUCLF or other amounts due under the Operative Documents (except with respect to the Other Lease Documents) following an Event of Default including any rejection by LRC of the Lease or any other Operative Document (except with respect to the Other Lease Documents) in any bankruptcy, insolvency or similar proceeding.

UCC ” means the Uniform Commercial Code as in effect in the State of New York from time to time, and the Uniform Commercial Code as in effect in any other jurisdiction which governs the perfection or non-perfection of the pledge of and security interests in the Collateral created by this Agreement.

(B) Rules of Interpretation. The rules of interpretation set forth in Appendix I to the Participation Agreement are hereby incorporated by reference.

(C) Attachments. All attachments to this Agreement are a part hereof for all purposes.

Union Bank Downgrade Event ” means Union Bank, N.A. or any successor of Union Bank, N.A. fails to maintain a debt rating of at least (i) BBB- (in the case of long term debt) by Standard and Poor’s Corporation (the “S&P Rating” ), and (ii) Baa3 (in the case of long term debt) by Moody’s Investor Service, Inc. (the “Moody Rating” ) and LRC shall elect to require that the Collateral held by Union Bank, N.A. to be transferred to an Eligible Deposit Taker pursuant to Section 3(C) hereof, provided that (i) such transferee shall satisfy the requirements of an Eligible Deposit Taker and (ii) LRC, Lessor and such

 

8


replacement Eligible Deposit Taker have entered into a control agreement in form reasonably acceptable to all parties thereto. The parties hereto believe that it is improbable that the ratings systems used by Standard and Poor’s Corporation and by Moody’s Investor Service, Inc. will be discontinued or changed, but if such ratings systems are discontinued or changed, LRC shall be entitled to select and use a comparable ratings systems as a substitute for the S&P Rating or the Moody Rating, as the case may be, for purposes of determining the status of Union Bank, N.A. or such successor as an Eligible Deposit Taker.

 

2. PLEDGE AND GRANT OF SECURITY INTEREST.

As security for the Secured Obligations, LRC hereby pledges and assigns to BTMUCLF and grants to BTMUCLF a continuing security interest and lien in and against all right, title and interest of LRC in and to the following property, whether now or hereafter existing, whether tangible or intangible, whether presently owned or vested in or hereafter acquired by LRC and wherever the same may be located (collectively and severally, the “Collateral”) :

(a) all Cash Collateral and all Deposit Accounts; and all cash and other assets from time to time held in or on deposit in any Deposit Account and all general intangibles arising from or relating to any Deposit Account or such cash or other assets; and all documents, instruments and agreements evidencing the same; and all extensions, renewals, modifications and replacements of the foregoing; and any interest or other amounts payable in connection therewith; and

(b) all proceeds of the foregoing (including whatever is receivable or received when Collateral or proceeds is invested, sold, collected, exchanged, returned, substituted or otherwise disposed of, whether such disposition is voluntary or involuntary, including rights to payment and return premiums and insurance proceeds under insurance with respect to any Collateral, and all rights to payment with respect to any cause of action affecting or relating to the Collateral).

The pledge, assignment and grant of a security interest made by LRC hereunder is for security of the Secured Obligations only; the parties to this Agreement do not intend that LRC’s delivery or deposit of any Collateral, including the Cash Collateral, as herein provided will constitute an advance payment of any Secured Obligations or liquidated damages, nor do the parties intend that the Collateral increase the dollar amount of the Secured Obligations.

 

3. PROVISIONS CONCERNING THE DEPOSIT TAKERS.

(A) Deposit Taker Agreements . Prior to the Closing, LRC must (1) ask BTMU, as the designated Deposit Taker for BTMUCLF, and each Eligible Deposit Taker designated by any Participant to act as the Deposit Taker for it under this Agreement, to satisfy the Deposit Taker Prerequisites; and (2) execute and provide to BTMUCLF a completed Deposit Taker’s Agreement for BTMUCLF’s execution and delivery to each Deposit Taker. Promptly after receipt of a properly completed Deposit Taker’s Agreement executed by LRC and in form ready to be executed by BTMU or any other Eligible

 

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Deposit Taker named therein, BTMUCLF must execute such Deposit Taker’s Agreement and deliver it to the appropriate Deposit Taker as necessary for the satisfaction of the Deposit Taker Prerequisites.

Without limiting the foregoing, it is understood that (i) BTMUCLF and any Participant may designate BTMU as its Deposit Taker, (ii) any Participant may designate itself or any of its Affiliates as its Deposit Taker so long as the Participant or its Affiliate, as the case may be, is an Eligible Deposit Taker, and (iii) as provided in both the preceding provisions of this subparagraph and in subparagraph 3(E), BTMUCLF and LRC must promptly upon request execute and deliver any properly completed Deposit Taker Agreement requested by BTMUCLF or any Participant to facilitate the designations of Deposit Takers contemplated by this Agreement. If any Participant has not already designated an Eligible Deposit Taker to act as Deposit Taker for it under this Agreement at any time when such a designation is required, then BTMUCLF may make the designation for such Participant; subject, however, to such Participant’s rights under subparagraphs 3(D) and 3(E).

(B) Qualification of Deposit Takers Generally . Notwithstanding anything herein to the contrary, BTMUCLF may decline to deposit or maintain Cash Collateral hereunder with any Disqualified Deposit Taker.

(C) Substitutions for Disqualified Deposit Takers .

(1) Upon learning that any Deposit Taker has become a Disqualified Deposit Taker, LRC or BTMUCLF may request that the party for whom such Disqualified Deposit Taker has been designated a Deposit Taker (i.e., BTMUCLF or the applicable Participant) (a) designate another Eligible Deposit Taker as its new, substitute Deposit Taker, and (b) direct the substitute to satisfy the Deposit Taker Prerequisites.

(2) Pending the designation of a substitute Deposit Taker as provided in this subparagraph 3(C) and its execution and delivery to BTMUCLF of an appropriate Deposit Taker’s Agreement, BTMUCLF may withdraw Collateral held by the Deposit Taker to be replaced and deposit such Collateral with other Deposit Takers. If at any time no Deposit Takers have been designated other than Disqualified Deposit Takers, then BTMUCLF must itself select a new Eligible Deposit Taker to act as a Deposit Taker for it and direct the new Eligible Deposit Taker to satisfy the Deposit Taker Prerequisites.

(3) If, following a BTMU Downgrade Event, BTMU subsequently maintains the S&P Rating and Moody Rating required by clauses (i) and (ii) of the definition of BTMU Downgrade Event, BTMUCLF may designate BTMU as its new, substitute Deposit Taker and to have Collateral previously withdrawn from BTMU promptly transferred to BTMU to be held in accordance herewith and the Deposit Taker’s Agreement (or a substitute Deposit Taker’s Agreement on the identical terms as that to which such Collateral was previously subject).

(D) Other Voluntary Substitutions of Deposit Takers . BTMUCLF may, and with the written approval of BTMUCLF (which approval will not be unreasonably

 

10


withheld) any Participant may, at any time designate for itself a new Deposit Taker (in replacement of any prior Deposit Taker acting for it hereunder); provided, the Person so designated is not be a Disqualified Taker.

(E) Delivery of Deposit Taker’s Agreements by LRC and BTMUCLF . To the extent required for the designation of a new Deposit Taker by BTMUCLF or any Participant pursuant to subparagraph 3(D), or to permit the substitution or replacement of a Deposit Taker for BTMUCLF or any Participant as provided in subparagraphs 3(C) and 3(D), LRC and BTMUCLF shall promptly execute and deliver any properly completed Deposit Taker’s Agreement requested by BTMUCLF or the applicable Participant.

(F) Constructive Possession of Collateral . The possession by a Deposit Taker of any money, instruments, chattel paper, financial assets or other property constituting Collateral or evidencing Collateral shall be deemed to be possession by BTMUCLF or a person designated by BTMUCLF, for purposes of perfecting the security interest granted to BTMUCLF hereunder pursuant to the UCC or other Applicable Law; and notifications to a Deposit Taker by other Persons holding any such property, and acknowledgments, receipts or confirmations from any such Persons delivered to a Deposit Taker, and control agreements made by any such Person with Deposit Taker with respect to any such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, or control agreements with, financial intermediaries, bailees or agents (as applicable) of such Deposit Taker for the benefit of BTMUCLF for the purposes of perfecting such security interests under Applicable Law.

However, nothing in this subparagraph will be construed to permit or authorize any replacement of Cash Collateral required by this Agreement with other types of Collateral or any substitution of other types of Collateral for Cash Collateral hereunder.

(G) Attempted Setoff by Deposit Taker . By delivery of a Deposit Taker’s Agreement, each Deposit Taker must agree not to setoff or attempt a setoff, without in each case first obtaining the prior written authorization of BTMUCLF (which BTMUCLF will not grant without the prior written consent of all Participants, if applicable), obligations owed to such Deposit Taker against any Collateral held by it from time to time. Nevertheless, LRC acknowledges and agrees (without limiting its right to recover any resulting damages from any Deposit Taker that violates such agreements) that BTMUCLF shall not be responsible for, or be deemed to have taken any action against LRC because of, any violation of such agreement by any Deposit Taker. Further, and without limiting the foregoing, as additional consideration for BTMUCLF’s accommodations to LRC, including BTMUCLF’s acceptance of the Collateral in lieu of other forms of security as collateral for the Secured Obligations, LRC hereby waives and covenants not to assert any defense or claim arising out of (i) the California antideficiency laws, including without limitation California Code of Civil Procedure Sections 580a, 580b, 580d and 726, and (ii) without limiting the generality of the foregoing, Walker v. Community Bank , 10 Cal. 3d 729, 111 Cal. Rptr. 897, 518 P.2d 329 (1974), Security Pacific Nat’l Bank v. Wozab , 51 Cal. 3d 991, 275 Cal. Rptr. 201, 800 P.2d 557 (1990), and similar cases, to the extent such claim arises out of or relates to the exercise of set off rights by any Deposit Taker.

 

4. DELIVERY AND MAINTENANCE OF COLLATERAL.

 

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(A) Delivery of Cash Collateral by LRC . On the Base Term Commencement Date as a condition precedent thereto under the Participation Agreement, LRC must deliver or cause to be delivered to Deposit Takers for deposit directly into the Deposit Accounts, in either case subject to the pledge and security interest created hereby, funds as Cash Collateral then needed (if any) in an amount equal to the Lease Balance (including any Advances or other amounts added to the Lease Balance on that date as provided in the Participation Agreement).

(B) Status of the Deposit Accounts Under the Reserve Requirement Regulations . Each Deposit Taker shall be permitted to structure the Deposit Account maintained by it as a nonpersonal time deposit under 12 C.F.R., Part II, Chapter 204 (commonly known as “Regulation D”). Accordingly, any Deposit Taker may require at least seven days advance notice of any withdrawal or transfer of funds from the Deposit Account maintained by it and, to the extent LRC has the right to request withdrawals therefrom, may limit the number of withdrawals or transfers from such Deposit Account to no more than six in any calendar month, notwithstanding anything to the contrary herein or in any deposit agreement that LRC and such Deposit Taker may enter into with respect to such Deposit Account. As necessary to satisfy the seven days notice requirement with respect to withdrawals by BTMUCLF when required by LRC pursuant to the provisions below, BTMUCLF shall notify the affected Deposit Takers promptly after receipt of any notice from LRC described in subparagraph 5(B).

(C) Acknowledgment by LRC that Requirements of this Agreement are Commercially Reasonable . LRC acknowledges and agrees that the requirements set forth herein concerning receipt, deposit, withdrawal, allocation, application and distribution of Cash Collateral by BTMUCLF, including the requirements and time periods set forth in the Paragraph 5, are commercially reasonable.

 

5. WITHDRAWAL OF COLLATERAL.

(A) Withdrawal of Cash Collateral Upon the Occurrence and During the Continuance of an Event of Default . Upon the occurrence and during the continuance of an Event of Default, without any instruction or request of LRC, BTMUCLF may withdraw and retain any Cash Collateral held by any Deposit Taker (which retention by BTMUCLF shall be free and clear of all liens and security interests hereunder and any rights of LRC thereto shall be released, terminated and waived without further action) as a payment on behalf of LRC of any amounts then due from LRC under Article XVIII of the Lease. To the extent BTMUCLF has exercised its rights and remedies thereunder and has indefeasibly satisfied the Secured Obligations in full in accordance with Article XVIII of the Lease, LRC may require BTMUCLF to withdraw and promptly pay to LRC any Cash Collateral still held by any Deposit Taker.

(B) Withdrawal and Application of Cash Collateral to Reduce or Satisfy the Secured Obligations to BTMUCLF . Except following the occurrence and during the continuance of an Event of Default, to satisfy the Secured Obligations in full, LRC may require BTMUCLF to withdraw and retain any Cash Collateral held by any Deposit Taker on the Base Term Expiration Date (which retention by BTMUCLF shall be free and clear of all liens and security interests hereunder and any rights of LRC thereto shall be released,

 

12


terminated and waived without further action) as a payment on behalf of LRC of any amounts then due from LRC under Articles XX, XXI or XXII of the Lease; provided, that by a notice in the form of Exhibit B , LRC must have notified BTMUCLF of the required withdrawal and payment to BTMUCLF at least ten days prior to the date upon which it is to occur and when no Event of Default (under and as defined in this Agreement or as defined in the Lease) has occurred and is continuing. To the extent LRC has validly exercised the Return Option under the Lease and the Recourse Deficiency Amount has been indefeasibly satisfied in full on the Base Term Expiration Date in accordance with Articles XXI and XXII of the Lease, LRC may require BTMUCLF to withdraw and pay to LRC Cash Collateral held by any Deposit Taker on the Base Term Expiration Date in an amount not to exceed the Make Whole Amount and when no Default or Event of Default (under and as defined in this Agreement or as defined in the Lease) has occurred and is continuing.

(C) Withdrawal and Return of Cash Collateral Following Satisfaction of all Secured Obligations . Following the Base Term Expiration Date, when all Secured Obligations have been indefeasibly satisfied in full, any remaining Cash Collateral that has not been withdrawn and applied against the Secured Obligations shall revert to LRC as provided in subparagraph 9(F), whereupon LRC may require BTMUCLF to withdraw such remaining Cash Collateral then maintained pursuant to this Agreement and promptly transfer such remaining Cash Collateral to LRC.

(D) No Other Right to Require or Make Withdrawals . LRC may not withdraw or require any withdrawal of Collateral from any account or deposit account pledged hereunder, including the Deposit Accounts, except as expressly provided in the preceding subparagraphs of this Paragraph 5. LRC acknowledges that it will have no check writing privileges or line of credit or credit card privileges under any such pledged account or deposit account, including the Deposit Accounts.

(E) BTMUCLF’s Covenant Not to Make Unauthorized Withdrawals . Notwithstanding provisions of any Control Agreement or of any Deposit Taker’s Agreement which may state that BTMUCLF is entitled to withdraw Collateral held by any Deposit Taker without any prior consent or authorization of LRC, BTMUCLF covenants to LRC (as between BTMUCLF and LRC) that BTMUCLF will not exercise such rights to withdraw Collateral except (1) as required or permitted by this Paragraph 5, (2) in the exercise of BTMUCLF’s rights or remedies as otherwise herein provided, or (3) as may from time to time be requested or approved by LRC.

 

6. REPRESENTATIONS AND COVENANTS OF LRC.

(A) Representations of LRC . LRC represents to BTMUCLF as follows:

(1) LRC is the legal and beneficial owner of the Collateral (or, in the case of after-acquired Collateral, at the time LRC acquires rights in the Collateral, will be the legal and beneficial owner thereof), subject to the pledge and rights hereby granted in favor of BTMUCLF. No other Person has (or, in the case of after-acquired Collateral, at the time LRC acquires rights therein, will have) any right, title, claim or interest (by way of Lien, purchase option or otherwise) in, against or to the Collateral, except for rights created hereunder. The Collateral shall

 

13


be deposited with the Deposit Taker hereunder and under the Deposit Taker’s Agreement free and clear of any Lien.

(2) BTMUCLF has (or in the case of after-acquired Collateral, at the time LRC acquires rights therein, will have) a valid, first priority, perfected pledge of and security interest in the Collateral, regardless of the characterization of the Collateral as deposit accounts, instruments or general intangibles under the UCC, but assuming that the representations of each Deposit Taker in its Deposit Taker’s Agreement are true.

(3) LRC has delivered to BTMUCLF, together with all necessary stock powers, endorsements, assignments and other necessary instruments of transfer, the originals of all documents, instruments and agreements evidencing the Collateral in order to comply with Section 2 of the Initial Control Agreement.

(4) Neither the ownership or the intended use of the Collateral by LRC, nor the pledge of Collateral or the grant of the security interest by LRC to BTMUCLF herein, nor the exercise by BTMUCLF of its rights or remedies hereunder, will (i) violate any provision of (a) Applicable Law, (b) the articles or certificate of incorporation, charter or bylaws of LRC, or (c) any agreement, judgment, license, order or permit applicable to or binding upon LRC or its properties, or (ii) result in or require the creation of any Lien, charge or encumbrance upon any assets or properties of LRC except as expressly contemplated in this Agreement. Except as expressly contemplated in this Agreement, no consent, approval, authorization or order of, and no notice to or filing with any court, governmental authority or third party is required in connection with the pledge or grant by LRC of the security interest contemplated herein or the exercise by BTMUCLF of its rights and remedies hereunder.

 

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(B) Covenants of LRC . LRC hereby agrees as follows:

(1) LRC, at LRC’s expense, shall promptly procure, execute and deliver to BTMUCLF all documents, instruments and agreements and perform all acts which are necessary or desirable, or which BTMUCLF may request, to establish, maintain, preserve, protect and perfect the Collateral, the pledge thereof to BTMUCLF or the security interest granted to BTMUCLF therein and the first priority of such pledge or security interest or to enable BTMUCLF to exercise and enforce its rights and remedies hereunder with respect to any Collateral. Without limiting the generality of the preceding sentence, LRC shall (A) procure, execute and deliver to BTMUCLF all stock powers, endorsements, assignments, financing statements and other instruments of transfer requested by BTMUCLF, (B) deliver to BTMUCLF promptly upon receipt all originals of Collateral consisting of instruments, documents and chattel paper, and (C) cause the security interest of BTMUCLF in any Collateral consisting of securities to be recorded or registered in the books of any financial intermediary or Clearing System requested by BTMUCLF.

(2) When Applicable Law provides more than one method of perfection of BTMUCLF’s security interest in the Collateral, BTMUCLF may choose the method(s) to be used. LRC hereby authorizes BTMUCLF to file any financing statements or financing statement amendment covering all or any portion of the Collateral or relating to the security interest created herein.

(3) LRC shall not use or authorize or consent to any use of any Collateral in violation of any provision of this Agreement or any other Operative Document or any Applicable Law.

(4) LRC shall pay promptly when due all Taxes and other governmental charges, Liens and other charges now or hereafter imposed upon, relating to or affecting any Collateral or arising on any interest or earnings thereon.

(5) LRC shall appear in and defend, on behalf of BTMUCLF, any action or proceeding which may affect LRC’s title to or BTMUCLF’s interest in the Collateral.

(6) Subject to the express rights of LRC under Paragraph 5, LRC shall not surrender or lose possession of (other than to BTMUCLF or a Deposit Taker pursuant hereto), encumber, lease, rent, option, or otherwise dispose of or transfer any Collateral or right or interest therein, and LRC shall keep the Collateral free of all Liens (other than Liens granted under this Agreement). The rights granted to BTMUCLF pursuant to this Agreement are in addition to the rights granted to BTMUCLF in any Control Agreement or other custody, investment management, trust, account control agreement or similar agreement. In case of conflict between the provisions of this Agreement and of any other such agreement, the provisions of this Agreement will prevail.

 

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(7) LRC will not take any action which would in any manner impair the value or enforceability of BTMUCLF’s pledge of or security interest in any Collateral, nor will LRC fail to take any action which is required to prevent (and which LRC knows is required to prevent) an impairment of the value or enforceability of BTMUCLF’s pledge of or security interest in any Collateral.

(8) Without limiting the foregoing, within five days after LRC becomes aware of any failure of the pledge or security interest contemplated herein in any Deposit Account or Cash Collateral to be a valid, perfected, first priority pledge or security interest (regardless of the characterization thereof as deposit accounts, securities accounts, instruments or general intangibles under the UCC), LRC shall notify BTMUCLF of such failure.

 

7. AUTHORIZED ACTION BY BTMUCLF.

LRC hereby irrevocably appoints BTMUCLF as LRC’s attorney-in-fact for the purpose of authorizing BTMUCLF to perform (but BTMUCLF shall not be obligated to and shall incur no liability to LRC or any third party for failure to perform) any act which LRC is obligated by this Agreement to perform, and to exercise, consistent with the other provisions of this Agreement, such rights and powers as LRC might exercise with respect to the Collateral during any period in which a Default has occurred and is continuing, including the right to (a) collect by legal proceedings or otherwise and endorse, receive and receipt for all dividends, interest, payments, proceeds and other sums and property now or hereafter payable on or on account of the Collateral; (b) enter into any extension, reorganization, deposit, merger, consolidation or other agreement pertaining to, or deposit, surrender, accept, hold or apply other property in exchange for the Collateral; (c) insure, process, preserve and enforce the Collateral; (d) make any compromise or settlement, and take any action it deems advisable, with respect to the Collateral; (e) pay any indebtedness of LRC relating to the Collateral; and (f) execute UCC financing statements and other documents, instruments and agreements required hereunder. Such appointment is coupled with an interest and shall be valid and binding on LRC and its successor and assigns.

 

8. DEFAULT AND REMEDIES.

(A) Remedies . In addition to all other rights and remedies granted to BTMUCLF by this Agreement and other Operative Documents (except under Other Lease Documents) or by the UCC and other Applicable Laws, BTMUCLF may, upon the occurrence and during the continuance of any Event of Default (as defined herein and in the Lease), exercise any one or more of the following rights and remedies, all of which will be in furtherance of its rights as a secured party under the UCC:

(1) BTMUCLF may collect, receive, appropriate or realize upon the Collateral or otherwise foreclose or enforce the pledge of or security interests in any or all Collateral in any manner permitted by Applicable Law or in this Agreement.

(2) BTMUCLF may notify any Deposit Taker to pay all or any portion of Cash Collateral held by such Deposit Taker directly to BTMUCLF up to an amount equal to the then outstanding Secured Obligations. BTMUCLF shall apply

 

16


any Cash Collateral or proceeds of other Collateral received by BTMUCLF after the occurrence of such an Event of Default to the Secured Obligations in any order BTMUCLF believes to be in its best interest. If any such Cash Collateral or proceeds received by BTMUCLF remains after all Secured Obligations have been paid in full, BTMUCLF will deliver or direct the Deposit Takers to deliver the same to LRC or other Persons entitled thereto.

Without limiting the foregoing, when any such Event of Default has occurred and is continuing, BTMUCLF may, without notice or demand, sell, redeem, offset, setoff, debit, charge or otherwise dispose of or liquidate into cash any Collateral and/or to apply it or the proceeds thereof to repay any or all of the Secured Obligations in such order as BTMUCLF believes to be in its best interest, regardless of whether any such Secured Obligations are contingent, unliquidated or unmatured or whether BTMUCLF has any other recourse to LRC or any Other Liable Party or any other collateral or assets (including the Property). Moreover, regardless of whether BTMUCLF commences any action to foreclose the lien and security interest granted in the Lease or the Memorandum of Lease (a “Property Foreclosure” ) before, after or contemporaneously with any action BTMUCLF may take under this Pledge Agreement to collect Cash Collateral or proceeds of other Collateral, and regardless of whether BTMUCLF actually receives proceeds of a Property Foreclosure before or after it receives Cash Collateral or proceeds of other Collateral, BTMUCLF will be entitled to apply Cash Collateral and proceeds of other Collateral to satisfy or reduce the Secured Obligations before applying the proceeds of a Property Foreclosure to other remaining obligations secured as described in the Lease and the Memo of Lease. Also, BTMUCLF may exercise its rights without regard to any premium or penalty from liquidation of any Collateral and without regard to LRC’s basis or holding period for any Collateral.

In connection with the exercise of its remedies under this Agreement, BTMUCLF may sell from its offices in Boston, Massachusetts, New York, New York or elsewhere, in one or more sales, at the price as BTMUCLF deems best, for cash or on credit or for other property, for immediate or future delivery, any item of the Collateral, at any broker’s board or at public or private sale, in any reasonable manner permissible under the UCC (except that, to the extent permissible under the UCC, LRC waives any requirements of the UCC) and BTMUCLF or anyone else may be the purchaser of the Collateral and hold it free from any claim or right including, without limitation, any equity of redemption of LRC, which right LRC expressly waives. BTMUCLF may in its sole discretion elect to conduct any sale (and related offers) of any Collateral in such a manner as to avoid the need for registration or qualification thereof under any Federal or state securities laws, that such conduct may include restrictions (including as to potential purchasers) and other requirements (such as purchaser representations) which may result in prices or other terms less favorable than those which might have been obtained through a public sale not subject to such restrictions and requirements and that any offer and sale so conducted shall be deemed to have been made in a commercially reasonable manner.

In connection with the exercise of its remedies, BTMUCLF may also, in its sole discretion, for its own benefit, acting either in its own name or in the name of LRC:

 

17


(i) hold any monies or proceeds representing the Collateral in a cash collateral account in U.S. dollars or other currency that BTMUCLF reasonably selects and invest such monies or proceeds on behalf of LRC;

(ii) convert any Collateral denominated in a currency other than U.S. dollars to U.S. dollars at the spot rate of exchange for the purchase of U.S. dollars with such other currency which is quoted by a branch or office of BTMUCLF’s Parent selected by BTMUCLF (or, if no such rate is quoted by BTMUCLF’s Parent on any relevant date, then at a rate estimated by BTMUCLF on the basis of other quoted spot rates) or another prevailing rate that BTMUCLF reasonably deems more appropriate; or

(iii) apply any portion of the Collateral, first, to pay or reimburse all costs and expenses of BTMUCLF and then to all or any portion of the Secured Obligations in such order as BTMUCLF may believe to be in its best interest.

In any event, LRC will pay to BTMUCLF upon demand all expenses (including reasonable, out-of-pocket fees, costs and expenses of counsel to BTMUCLF and any Participant) incurred by BTMUCLF in connection with the exercise of any of BTMUCLF’s rights or remedies under this Agreement.

Notwithstanding that BTMUCLF may continue to hold Collateral and regardless of the value of the Collateral, LRC will remain liable for the payment in full of any unpaid balance of the Secured Obligations.

In any case where notice of any sale or disposition of any Collateral is required, LRC hereby agrees that ten (10) days notice of such sale or disposition is reasonable.

(B) Recovery Not Limited . To the fullest extent permitted by Applicable Law, LRC waives any right to require that BTMUCLF proceed against any other Person, exhaust any Collateral or other security for the Secured Obligations, or to have any Other Liable Party joined with LRC in any suit arising out of the Secured Obligations or this Agreement, or pursue any other remedy in their power. LRC waives any and all notice of acceptance of this Agreement.

LRC further waives notice of the creation, modification, rearrangement, renewal or extension for any period of any of the Secured Obligations of any Other Liable Party from time to time and any defense arising by reason of any disability or other defense of any Other Liable Party or by reason of the cessation from any cause whatsoever of the liability of any Other Liable Party. Until all of the Secured Obligations shall have been paid in full, LRC shall have no right to subrogation, reimbursement, contribution or indemnity against any Other Liable Party and LRC waives the right to enforce any remedy which BTMUCLF has or may hereafter have against any Other Liable Party, and waives any benefit of and any right to participate in any other security whatsoever now or hereafter held by or on behalf of BTMUCLF. LRC authorizes BTMUCLF, without notice or demand and without any reservation of rights against LRC and without affecting LRC’s liability hereunder or on the Secured Obligations, from time to time to (a) take or hold any other property of any type

 

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from any other Person as security for the Secured Obligations, and exchange, enforce, waive and release any or all of such other property, (b) after and during the continuance of any Event of Default (as defined herein or in the Lease), apply or require the application of the Collateral (in accordance with this Agreement) or such other property in any order they may determine and to direct the order or manner of sale thereof as they may determine, (c) renew, extend for any period, accelerate, modify, compromise, settle or release any of the obligations of any Other Liable Party with respect to any or all of the Secured Obligations or other security for the Secured Obligations, and (d) release or substitute any Other Liable Party.

 

9. MISCELLANEOUS.

(A) Payments by LRC to BTMUCLF . All payments and deliveries of funds required to be made by LRC to BTMUCLF hereunder shall be paid or delivered in immediately available funds by wire transfer to the Deposit Account in accordance with wiring instructions which will be provided by BTMUCLF to LRC. Time is of the essence as to all payments and deliveries of funds by LRC to BTMUCLF under this Agreement.

(B) Payments by BTMUCLF to LRC . All payments of Cash Collateral withdrawn by BTMUCLF from the Deposit Accounts and required to returned by BTMUCLF to LRC hereunder shall be paid or delivered in immediately available funds by wire transfer to:

 

Bank Name:        
Bank Address:        
ABA # (Domestic):        
SWIFT ID (Inn):        
Account Name:        
Account Number:        
Bank Contact:        
       
       
Reference        
       

or at such other place and in such other manner as LRC may designate in a notice sent to BTMUCLF. Time is of the essence as to all such payments by BTMUCLF to LRC.

(C) Cumulative Rights, etc. Except as herein expressly provided to the contrary, the rights, powers and remedies of BTMUCLF under this Agreement shall be in addition to all rights, powers and remedies given to them by virtue of any Applicable Law, any other Operative Document or any other agreement, all of which rights, powers, and remedies shall be cumulative and may be exercised successively or concurrently without impairing their respective rights hereunder. LRC waives any right to require BTMUCLF to proceed against any Person or to exhaust any Collateral or other collateral or security or to pursue any remedy in BTMUCLF’s power.

 

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(D) Survival of Agreements . All representations and warranties of LRC herein, and all covenants and agreements herein shall survive the execution and delivery of this Agreement, the execution and delivery of any other Operative Documents and the creation of the Secured Obligations and continue until terminated or released as provided herein.

(E) Other Liable Party . Neither this Agreement nor the exercise by BTMUCLF or the failure of BTMUCLF to exercise any right, power or remedy conferred herein or by law shall be construed as relieving LRC or any Other Liable Party from liability on the Secured Obligations or any deficiency thereon. This Agreement shall continue irrespective of the fact that the liability of any Other Liable Party may have ceased or irrespective of the validity or enforceability of any other agreement evidencing or securing the Secured Obligations to which LRC or any Other Liable Party may be a party, and notwithstanding the reorganization, death, incapacity or bankruptcy of any Other Liable Party, or any other event or proceeding affecting any Other Liable Party.

(F) Termination . Following the Base Term Expiration Date, upon indefeasible satisfaction in full of all Secured Obligations (other than contingent indemnity obligations for which no Claim has been made or are not due and payable) and upon written request for the termination of this Agreement delivered by LRC to BTMUCLF, BTMUCLF will execute and deliver, at LRC’s expense, an acknowledgment that this Agreement and the pledge and security interest created hereby are terminated, whereupon all rights to any remaining Collateral that has not been applied against Secured Obligations in accordance with this Agreement shall revert to LRC.

[Signature pages to follow]

 

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IN WITNESS WHEREOF, this Agreement is executed to be effective as of the date first written above.

 

BTMU CAPITAL LEASING & FINANCE, INC.,
a Delaware corporation
By:  

/s/ Michael Doyle

Name:   Michael D. Doyle
Title:   President


LAM RESEARCH CORPORATION,
a Delaware Corporation
By:  

/s/ Odette Go

Name:   Odette Go
Title:   Treasurer


Exhibit A

TO PLEDGE AGREEMENT

DEPOSIT AGREEMENT

(FREMONT 3)

Dated as of December 31, 2013

The Bank of Tokyo-Mitsubishi UFJ, Ltd.

Global Markets Division for the Americas

1251 Avenues of the Americas

New York, New York 10020-1104

Dear Ladies and Gentlemen:

LAM Research Corporation, a Delaware corporation (“ LRC ”), refers to that certain Pledge Agreement (Fremont 3), dated as of December 31, 2013 (as amended or otherwise modified from time to time, the “Pledge Agreement” ), between BTMU Capital Leasing & Finance, Inc. (“ BTMUCLF ”) and LRC. All capitalized terms used herein and not otherwise defined herein shall have the same meanings herein as set forth in the Pledge Agreement. All terms used in this Agreement which are defined in the UCC and not otherwise defined herein shall have the same meanings herein as set forth therein, except where the context otherwise requires.

This Deposit Agreement (this “ Agreement ”), is among The Bank of Tokyo-Mitsubishi UFJ, Ltd. (“ Deposit Taker ”), LRC and BTMUCLF and shall serve as instructions regarding the following deposit account established by LRC at the Deposit Taker (the “ Deposit Account ”):

 

Account

Type

  

Account

Office

    

Account/IMMS/WSS

Numbers

       

 

  

 

    

 

LRC has delivered to Deposit Taker for deposit initially in such Deposit Account, which may not necessarily bear any special title or which may be entitled: “LAM RESEARCH CORPORATION COLLATERAL ACCOUNT FOR THE BENEFIT OF BTMU CAPITAL LEASING & FINANCE, INC.” or such other title as may be acceptable to Deposit Taker the sum of U.S.$37,007,266.27 in immediately available funds and which may thereafter be held in (but are not necessarily limited to) the form of one or more time deposits, certificates of deposit, other deposits or instruments of any type which at all times shall be under the


dominion and control of the Deposit Taker (such funds, whether now or at any time hereafter on deposit with or payable or withdrawable from the Deposit Taker (whether from the Deposit Account or any other deposit account, or any time deposit, certificate of deposit, or any other deposit or instrument of any type)), together with any amounts or accruals subsequently added to or earned, including interest, by such funds and all additional funds hereafter deposited into the Deposit Account hereunder or otherwise or given in substitution for such funds, being referred to herein as the “ Deposited Funds ”). Any such Deposited Funds and any funds or deposits which at any time derive from, consist of or represent Deposited Funds (including, but not limited to, time deposits, certificates of deposit, other deposits or instruments of any type), all proceeds, income and profits thereon and therefrom, and the Deposit Account and any deposit account in which any of the foregoing is deposited or held, and all of LRC’s rights and interests therein and claims against Deposit Taker with respect thereto, are collectively referred to herein as, the “ Cash Collateral ”. Without limiting any of Deposit Taker’s other rights or remedies Deposit Taker shall have all the rights and remedies of a secured party under the Uniform Commercial Code and all other applicable law with respect to the Cash Collateral and each such deposit account, all of which LRC acknowledges is to be deemed a “deposit account” defined by the Uniform Commercial Code. LRC understands that Deposit Taker may combine the Deposited Funds and Cash Collateral with other funds and will not be required to keep them separate and identifiable and that the Deposited Funds and Cash Collateral may be invested, reinvested, held or otherwise utilized by the Deposit Taker without any direction of the Parties. If such commingling occurs, Deposit Taker may consider the Deposited Funds to consist at any time of any and all funds in any relevant account up to the amount required to be held by Deposit Taker pursuant hereto.

1. Lien . As security for immediate payment and performance when due of all of the Secured Obligations as defined in the Pledge Agreement owing by LRC, whensoever arising, whether now existing or hereafter incurred, of every kind and character, including, without limitation, arising or otherwise existing under or with respect to the Amended and Restated Lease Agreement (Fremont 3), dated as of December 31, 2013 (as amended or otherwise modified from time to time, the Lease Agreement ), between BTMUCLF and LRC and the Operative Documents (except with respect to the Other Lease Documents) (all such obligations, liabilities and indebtedness being referred to herein collectively as the Secured Obligations ), LRC hereby pledges and assigns to BTMUCLF and grants to BTMUCLF a continuing first priority security interest in the following (the “ Collateral ”): (i) the Deposit Account, (ii) the Cash Collateral, (iii) all Deposited Funds, (iv) any and all accounts to which the Deposited Funds or the proceeds thereof are credited, (v) all amounts, money and other property standing to the credit of any such accounts, together with any and all documents evidencing or constituting such amounts, money and other property, (vi) all instruments, investment property and the like in which such property is from time to time invested or reinvested and all interest, distributions, other income and the like payable with respect thereto, and (vii) all replacements, renewals, substitutions, products, profits and proceeds of the foregoing in whatever form. The parties hereto agree that this Agreement complies with Section 9-104(a)(2) of the New York Uniform Commercial Code. So long as this Agreement remains in full force and effect, LRC shall have no right to be paid or to draw upon, transfer or otherwise dispose of any of the Cash Collateral, and Deposit Taker shall

 

2


have exclusive dominion and control of all Cash Collateral. Deposit Taker has and shall have “control”, as contemplated by Article 9 of the Uniform Commercial Code, including Section 9-104 thereof, of the Deposit Account, the Deposited Funds, the Cash Collateral and of any deposit account in which any Cash Collateral is deposited.

2. Duties . Deposit Taker agrees to take such action with respect to the Deposit Account as shall from time to time be specified in any writing purportedly from BTMUCLF as provided herein. LRC and BTMUCLF agree that: (a) Deposit Taker has no duty to monitor the balance of the Deposit Account; (b) BTMUCLF may at any time make withdrawals from the Deposit Account and take any and all actions with respect to the Deposit Account, and Deposit Taker is hereby authorized to honor any instructions with respect to the Deposit Account (including withdrawals therefrom) which purport to be from BTMUCLF (in each case without notifying or obtaining the consent of LRC); (c) Deposit Taker may, without further inquiry, rely on and act in accordance with any instructions it receives from (or which purport to be from) BTMUCLF, notwithstanding any conflicting or contrary instructions it may receive from LRC, and Deposit Taker shall have no liability to BTMUCLF, LRC or any other person in relying on and acting in accordance with any such instructions; (d) Deposit Taker shall have no responsibility to inquire as to the form, execution, sufficiency or validity of any notice or instructions delivered to it hereunder, nor to inquire as to the identity, authority or rights of the person or persons executing or delivering the same, and (e) Deposit Taker shall have a reasonable period of time within which to act in accordance with any notice or instructions from BTMUCLF with respect to the Deposit Account. Deposit Taker is hereby authorized immediately, and without demand upon or notice to us or other formality, to take direction from BTMUCLF acting in accordance with the terms and conditions of the Pledge Agreement to (i) withdraw and deliver any and all Cash Collateral and Deposited Funds to LRC, (ii) withdraw and apply any and all Cash Collateral and Deposited Funds to reduce or satisfy any and all Secured Obligations in any order and first toward any expenses Deposit Taker incurs in Deposit Taker’s discretion, as and when they arise or are due, without resort to us, any other collateral or any other obligor, or (iii) withdraw and return Cash Collateral and Deposited Funds to LRC.

3. Interest on the Deposit Account . Deposit Taker will have no obligation to pay any interest on the Deposit Account except as follows: on each Payment Date accrued interest on each Deposit Account maintained by Deposit taker will be paid by wire transfer to the LRC for the period (the “Interest Period” ) since the preceding Payment Date (or if there was no preceding Payment Date, since the Base Term Commencement Date) equal to the product of:

 

    the Deposited Funds on deposit with the Deposit Taker on the first day of such Interest Period, times

 

    LIBOR Rate less 0.125% (but in no event less than zero) for such Interest Period, times

 

    the number of days in such Interest Period, divided by;

 

    three hundred sixty.

 

3


As used in this Section 3, capitalized terms defined in the Participation Agreement are intended to have the respective meanings assigned to them in the Participation Agreement.

All payments of interest by Deposit Taker hereunder to LRC hereunder shall be paid or delivered in immediately available funds by wire transfer to:

 

Bank Name:        
Bank Address:        
ABA # (Domestic):        
SWIFT ID (Inn):        
Account Name:        
Account Number:        
Bank Contact:        
       
       
Reference        

or at such other place and in such other manner as LRC may designate in a notice sent to the Deposit Taker. Time is of the essence as to all such payments by Deposit Taker to LRC.

4. Remedies . LRC agrees that, at any time after an Event of Default has occurred or any Secured Obligation arises or comes due, Deposit Taker may, without notice or demand (all of which LRC hereby waives), to take direction from BTMUCLF acting in its sole discretion to realize upon and apply all or any part of the Cash Collateral to the payment of all or any part of the Secured Obligations, in such order and manner as BTMUCLF may elect and Deposit Taker is authorized to take direction from BTMUCLF acting in its sole discretion to break any time deposit or certificate deposit prior to its stated maturity and for which LRC shall have responsibility for any loss of interest or early withdrawal penalties resulting therefrom. BTMUCLF shall not be required to pursue any other right or remedy against us, or any other person liable for any part of the Secured Obligations, or enforce its security interest in or liens on any other property securing the Secured Obligations, prior to enforcing Deposit Taker’s rights against the Cash Collateral. Without limiting the foregoing, Deposit Taker is hereby authorized immediately, and without demand upon or notice to us or other formality, to take direction from BTMUCLF acting in its sole discretion on and during the continuance of an Event of Default (as such term is defined in the Pledge Agreement), apply and setoff against the Cash Collateral and the Deposited Funds the aggregate amount of all principal of, interest on and other amounts payable with respect to all Secured Obligations existing or payable as of such date, whether or not then due.

5. Representations, Warranties and Covenants . LRC hereby represents, warrants and covenants to Deposit Taker and BTMUCLF that: (i) the Collateral is and will be owned by us free and clear of all claims, liens, security interests, pledges and encumbrances of any kind, except in Deposit Taker’s favor; (ii) LRC is a corporation, duly organized and validly existing in good standing under the laws of State of Delaware, and have the right and power to execute, deliver and perform this Agreement, and to pledge, assign and grant a security interest in the Collateral in accordance herewith; (iii) this Agreement has been duly authorized, executed and delivered by LRC (and those individuals who have signed on its

 

4


behalf have the authority to do so consistent with resolutions on file in Deposit Taker’s offices) and constitutes its legal, valid, binding and enforceable obligation; (iv) Deposit Taker has and will continue at all times to have a first priority perfected and enforceable lien and security interest in the Collateral, subject to no other liens, security interests or encumbrances; (v) LRC shall not take any action or otherwise make any attempt to draw upon, transfer or otherwise dispose of the Collateral or permit the amount of Collateral to decrease at any time; and (vi) LRC shall from time to time at Deposit Taker’s request, execute, deliver, acknowledge, file and record such agreements, documents, statements and certificates (including, without limitation, Uniform Commercial Code financing statements), and do such acts and things as are necessary or appropriate to effectuate the purposes of this Agreement. LRC hereby authorizes Deposit Taker to file any Uniform Commercial Code financing statements, amendments thereto or continuations thereof, and any other appropriate security documents or instruments and to give any notices necessary or desirable to perfect any lien or security interest granted hereby, all without the signature of the LRC or to execute such items as attorney-in-fact for the LRC, as may be necessary to further the purposes described herein. Deposit Taker shall at all times have the exclusive right to hold and possess any certificates, instruments or documents included in the Collateral. Should LRC at any time receive any such certificates, instruments or documents it shall hold the same in trust for, and immediately deliver them to, Deposit Taker. Any breach of any representation, warranty, covenant or agreement made by us herein or elsewhere shall be an “ Event of Default ”. An “ Event of Default ” shall also be as defined in the Pledge Agreement.

6. Information . Deposit Taker shall provide BTMUCLF with such information with respect to the Deposit Account and all items (and proceeds thereof) deposited in the Deposit Account as BTMUCLF may from time to time reasonably request, and LRC hereby consents to such information being provided to BTMUCLF and agrees to pay all expenses in connection therewith.

7. Exculpation; Indemnity . Deposit Taker undertakes to perform only such duties as are expressly set forth herein. Notwithstanding any other provisions of this Agreement, the parties hereby agree that Deposit Taker shall not be liable for any action taken by it in accordance with this Agreement, including, without limitation, any action so taken at BTMUCLF’s request or direction, except direct damages attributable to the Deposit Taker’s gross negligence or willful misconduct. In no event shall Deposit Taker be liable for any (i) losses or delays resulting from acts of God, war, computer malfunction, interruption of communication facilities, labor difficulties or other causes beyond Deposit Taker’s reasonable control, or (ii) for indirect, special, punitive or consequential damages. LRC agrees to indemnify and hold Deposit Taker harmless from and against all costs, damages, claims, judgments, reasonable attorneys’ fees, expenses, obligations and liabilities of every kind and nature (collectively, “ Losses ”) which Deposit Taker may incur, sustain or be required to pay (other than those attributable to Deposit Taker’s gross negligence or willful misconduct) in connection with or arising out of this Agreement or the Deposit Account (including without limitation, the amount of any overdraft created in the Deposit Account resulting from a Chargeback, and to pay to Deposit Taker on demand the amount of all such Losses. Nothing in this Section, and no indemnification of Deposit Taker hereunder, shall affect in any way the indemnification obligations of LRC to BTMUCLF under the Pledge Agreement or other

 

5


Operative Documents. The provisions of this Section shall survive termination of this Agreement.

8. Irrevocable Agreement . LRC acknowledges that the agreements made by it and the authorizations granted by it herein are irrevocable and that the authorizations granted in Section 2 are powers coupled with an interest.

9. Set-off . Deposit Taker waives all of its existing and future rights of set-off and banker’s liens against the Deposit Account and all items (and proceeds thereof) that come into possession of Deposit Taker in connection with the Deposit Account.

10. Miscellaneous . This Agreement is binding upon the parties hereto and their respective successors and assigns (including any trustee of LRC appointed or elected in any action under the Bankruptcy Code) and shall inure to their benefit. Neither LRC nor BTMUCLF may assign their respective rights hereunder unless the prior written consent of the Deposit Taker is obtained. Neither this Agreement nor any provision hereof may be changed, amended, modified or waived, except by an instrument in writing signed by the parties hereto. Any provision of this Agreement that may prove unenforceable under any law or regulation shall not affect the validity of any other provision hereof. This Agreement shall be governed by the laws of the State of New York, without giving effect to the conflicts of laws provisions of such State (including, without limitation, Section 5-1401 of the New York General Secured Obligations Law). LRC hereby irrevocably submits to the jurisdiction of the courts of the U.S. Federal and New York State courts sitting in the Borough of Manhattan, New York and waives any objection to or based upon personal jurisdiction, venue, inconvenient forum or service of process in connection with any action or proceeding arising out of or in connection with this Agreement. LRC hereby irrevocably consents to service of process by first class or certified mail, or recognized courier for which a receipt is available, sent to the address shown in Deposit Taker’s records. This Agreement may be executed in any number of counterparts which together shall constitute one and the same instrument. LRC HEREBY IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE PLEDGE AGREEMENT OR ANY RELATED TRANSACTION.

11. Termination and Resignation . This Agreement may be terminated by agreement of BTMUCLF and LRC upon fifteen (15) days’ prior written notice to Deposit Taker; provided, however, that this Agreement shall terminate immediately upon notice from BTMUCLF that all of LRC’s obligations secured by the Pledge Agreement are satisfied. Deposit Taker may, at any time upon thirty (30) days’ prior written notice to BTMUCLF and LRC, terminate this Agreement and close the Deposit Account; provided, however, that a substitute deposit taker has been appointed for BTMUCLF or Participant (in its capacity as a Participant) under and as described in the Pledge Agreement. Upon termination of this Agreement any funds in the Deposit Account shall be subject to the direction of BTMUCLF, including any direction given by BTMUCLF that such funds be wired to another “Deposit Taker” designated for BTMUCLF or such Participant under and as defined in the Pledge Agreement.

 

6


12. Notices . Unless otherwise specifically provided herein, any notice or other communication required or permitted to be given shall be in writing addressed to the respective party as set forth below and may be personally served, telecopied or sent by overnight courier service and shall be deemed to have been given: (a) if delivered in person, when delivered; (b) if delivered by telecopy, on the date of transmission if transmitted on a Business Day before 4:00 P.M. (New York time) (but only if such telecopied document is also delivered by another method permitted by this Agreement by the next banking business day), or, if not, on the next succeeding Business Day; or (c) if delivered by reputable overnight courier, the banking business day on which such delivery is made by such courier.

Notices shall be addressed as follows:

 

BTMUCLF:    BTMU Capital Leasing & Finance, Inc.
   111 Huntington Avenue
   Boston, Massachusetts 02199
   Attention: Portfolio Servicing
   Telecopy:                                 
Deposit Taker:    The Bank of Tokyo-Mitsubishi UFJ, Ltd.
   Global Markets Division for the Americas
   1251 Avenues of the Americas
   New York, New York 10020-1104
   Attn: Charles Catalano, Director – Institutional Sales Department
   Telecopy:                                 
   Email:                                         
LRC:    Lam Research Corporation
  

4300 Cushing Parkway

Fremont, California 94538

   Attention: Odette Go, Treasurer
   Telecopy:                                 
   Email:                                         

or in any case, to such other address as the party addressed shall have previously designated by written notice to the serving party, given in accordance with this Section.

[signature page follows.]

 

7


Please countersign below to indicate your acceptance of our agreement herein.

 

Very truly yours,

LAM RESEARCH CORPORATION,

a Delaware corporation

By:  

 

Name:  

 

Title:  

 

 

ACCEPTED AND AGREED TO as of this      day of             ,         
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
By:  

 

Name:  

 

Title:  

 

 

ACKNOWLEDGED AND AGREED TO as of this     day of             ,         
BTMU CAPITAL LEASING & FINANCE, INC.,
a Delaware corporation

By:

Name:

Title:


Exhibit B

TO PLEDGE AGREEMENT

NOTICE OF LRC’S REQUIREMENT OF

DIRECT PAYMENT TO BTMUCLF

BTMU Capital Leasing & Finance, Inc.

111 Huntington Avenue

Boston, Massachusetts 02199

Attention: Portfolio Servicing

 

  Re: Pledge Agreement (Fremont 3) dated as of December 31, 2013 between Lam Research Corporation and BTMU Capital Leasing & Finance, Inc.

Gentlemen:

Capitalized terms used in this letter are intended to have the meanings assigned to them in the Pledge Agreement (Fremont 3) referenced above (the “Pledge Agreement” ). This letter constitutes notice to you, as secured party under the Pledge Agreement, that pursuant to subparagraph 5(B) of the Pledge Agreement, LRC requires you to withdraw from the Deposit Account and to retain, as a payment from LRC required by Articles XX, XXI or XXII of the Lease, the following amount:

                     Dollars ($        )

on the following date (which, LRC acknowledges, must be the Base Term Expiration Date):

LRC acknowledges that its right to require such withdrawal is subject to the condition that LRC must give this notice to you at least ten days prior to the date of required withdrawal and payment specified above, and also to the condition that no Event of Default (under and as defined in the Pledge Agreement or as defined in the Lease referenced therein) has occurred and is continuing.

Please remember that the express terms of the Pledge Agreement allow the Deposit Takers to require notice of withdrawal at least seven days before Cash Collateral is to be withdrawn from the Deposit Accounts. Accordingly, you must notify the Deposit Takers seven days prior to the withdrawal of Cash Collateral required by this notice.

 

Lam Research Corporation
By:  

 

Name:  

 

Title:  

 

Exhibit 10.23

 

 

AMENDED AND RESTATED LEASE AGREEMENT

(Fremont 3E)

D ATED AS OF D ECEMBER  31, 2013

B ETWEEN

BTMU CAPITAL LEASING & FINANCE, INC.,

AS L ESSOR ,

A ND

LAM RESEARCH CORPORATION,

AS L ESSEE

 

 


TABLE OF CONTENTS

 

         Page  

ARTICLE I

 

DEFINITIONS

     1   

ARTICLE II

 

LEASE OF LEASED PROPERTY; LEASE TERM

     2   

SECTION 2.1.

    

Acceptance and Lease.

     2   

SECTION 2.2.

    

Lease Term.

     2   

ARTICLE III

 

TAXES

     2   

SECTION 3.1.

  

Impositions.

     2   

SECTION 3.2.

  

Contests.

     3   

ARTICLE IV

 

RENT

     3   

SECTION 4.1.

  

Rental Payments.

     3   

SECTION 4.2.

  

Supplemental Rent.

     3   

SECTION 4.3.

  

Method and Amount of Payment.

     3   

SECTION 4.4.

  

Late Payment.

     4   

ARTICLE V

 

NET LEASE

     4   

ARTICLE VI

 

UTILITY CHARGES

     5   

ARTICLE VII

 

CONDITION AND USE OF LEASED PROPERTY

     6   

ARTICLE VIII

 

LIENS; EASEMENTS

     7   

SECTION 8.1.

  

Liens.

     7   

SECTION 8.2.

  

Easements.

     7   

ARTICLE IX

 

MAINTENANCE AND REPAIR; ALTERATIONS AND ADDITIONS

     8   

SECTION 9.1.

  

Maintenance and Repair; Compliance With Law.

     8   

SECTION 9.2.

  

Improvements and Alterations.

     8   

SECTION 9.3.

  

Alterations Subject to Lease.

     9   

SECTION 9.4.

  

Maintenance and Repair Reports.

     10   

SECTION 9.5.

  

Permitted Contests.

     10   

ARTICLE X

 

USE

     11   

SECTION 10.1.

  

Use.

     11   

SECTION 10.2.

  

Trade Compliance.

     11   

ARTICLE XI

 

INSURANCE

     11   

SECTION 11.1.

  

Required Coverages.

     11   

 

i


TABLE OF CONTENTS

(continued)

 

              Page  

SECTION 11.2.

    

Delivery of Insurance Certificates.

     14   

ARTICLE XII

 

ASSIGNMENT AND SUBLEASING

     15   

ARTICLE XIII

 

LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE

     16   

SECTION 13.1.

    

Event of Loss.

     16   

SECTION 13.2.

    

Condemnation.

     18   

SECTION 13.3.

    

Casualty.

     19   

SECTION 13.4.

    

Proceeds.

     19   

SECTION 13.5.

    

Negotiations.

     19   

SECTION 13.6.

    

No Rent Abatement.

     20   

ARTICLE XIV

 

CERTAIN DUTIES AND RESPONSIBILITIES

     20   

ARTICLE XV

 

INSPECTION

     20   

ARTICLE XVI

 

ENVIRONMENTAL MATTERS

     21   

SECTION 16.1.

    

Environmental Matters.

     21   

SECTION 16.2.

    

Notice of Environmental Matters.

     21   

ARTICLE XVII

 

EVENTS OF DEFAULT

     22   

ARTICLE XVIII

 

ENFORCEMENT

     24   

SECTION 18.1.

    

Remedies.

     24   

SECTION 18.2.

    

Proceeds of Sale; Deficiency.

     28   

SECTION 18.3.

    

Waiver of Certain Rights.

     29   

SECTION 18.4.

    

Remedies Cumulative; No Waiver; Consents.

     29   

SECTION 18.5.

    

Limitation of Recourse Liability.

     29   

ARTICLE XIX

 

RIGHT TO CURE

     31   

ARTICLE XX

 

EARLY TERMINATION OPTION; OBLIGATION TO PURCHASE; MID-TERM REMARKETING OPTION

     31   

SECTION 20.1.

    

Early Termination Option.

     31   

SECTION 20.2.

    

Required Purchase.

     31   

SECTION 20.3.

    

Mid-term Remarketing Option.

     32   

ARTICLE XXI

 

END OF TERM OPTIONS

     32   

SECTION 21.1.

    

End of Term Options

     32   

SECTION 21.2.

    

Election of Options.

     33   

 

ii


TABLE OF CONTENTS

(continued)

 

              Page  

ARTICLE XXII

 

RETURN OPTION

     33   

SECTION 22.1.

    

Return Option Procedures.

     33   

SECTION 22.2.

    

Sale.

     35   

SECTION 22.3.

    

Application of Sale Proceeds and Recourse Payments.

     36   

SECTION 22.4.

    

Failure to Sell Leased Property.

     37   

SECTION 22.5.

    

Surrender and Return.

     39   

ARTICLE XXIII

 

MISCELLANEOUS

     40   

SECTION 23.1.

    

Binding Effect; Successors and Assigns; Survival.

     40   

SECTION 23.2.

    

Severability.

     41   

SECTION 23.3.

    

Notices.

     41   

SECTION 23.4.

    

Amendment; Complete Agreements.

     41   

SECTION 23.5.

    

Headings.

     41   

SECTION 23.6.

    

Original Executed Counterpart.

     42   

SECTION 23.7.

    

Governing Law.

     42   

SECTION 23.8.

    

No Joint Venture.

     42   

SECTION 23.9.

    

No Accord and Satisfaction.

     42   

SECTION 23.10.

    

Survival.

     42   

SECTION 23.11.

    

Transfer of Leased Property.

     42   

SECTION 23.12.

    

Enforcement of Certain Warranties.

     43   

SECTION 23.13.

    

Security Interest in Funds.

     43   

SECTION 23.14.

    

Submission to Jurisdiction.

     44   

SECTION 23.15.

    

Jury Trial.

     44   

SECTION 23.16.

    

Payments.

     44   

EXHIBITS

     

EXHIBIT A

 

Description of Site

  

 

iii


AMENDED AND RESTATED LEASE AGREEMENT

(Fremont 3E)

THIS AMENDED AND RESTATED LEASE AGREEMENT (Fremont 3E), dated as of December 31, 2013 (as amended, supplemented, or otherwise modified from time to time (this “ Lease ”), is between BTMU CAPITAL LEASING & FINANCE, INC., a Delaware corporation, as Lessor (the “ Lessor ”) and whose principal offices are located at 111 Huntington Avenue, Boston, Massachusetts 02199, and LAM RESEARCH CORPORATION, a Delaware corporation, as Lessee (the “ Lessee ”) and whose principal offices are located at 4300 Cushing Parkway, Fremont, California 95438.

WITNESSETH:

Lessee and Lessor are entering into this Lease and the Operative Documents.

A. Subject to the terms and conditions set forth in the Operative Documents, on the Closing Date, Lessor has agreed to acquire the land described on Exhibit A attached hereto (the “ Site ”) and the New Improvement to be constructed thereon pursuant to the Construction Agency Agreement and other Operative Documents (the “ New Improvements ”) and Personal Property used thereon (collectively, the “ Leased Property ”) which Leased Property is subject to that certain Lease Agreement (Fremont/Building #3), dated as of December 21, 2007 (“ Existing Lease Fremont 2 ”) between BNP Paribas Leasing Corporation, a Delaware corporation (the “ Existing Lessor ”), and the Lessee.

B. Existing Lessor has assigned all of its right, title and interest in and to the Existing Lease Fremont 3 and the Leased Property to Lessor.

C. The Lessee and the Lessor desire to continue to lease the Leased Property and to amend and restate the Existing Lease in accordance with the terms and conditions set forth below.

NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, hereby agree that the Existing Lease is hereby amended and restated in its entirety as follows:

ARTICLE I

DEFINITIONS

For all purposes hereof, the capitalized terms used herein and not otherwise defined shall have the meanings assigned thereto in Appendix I to that certain Participation Agreement dated as of even date herewith, between the Lessee and the Lessor (as the same may be amended, modified, restated or supplemented from time to time, the “ Participation Agreement ”).


ARTICLE II

LEASE OF LEASED PROPERTY; LEASE TERM

SECTION 2.1. Acceptance and Lease.

The Lessor, subject to the satisfaction or waiver of the conditions set forth in Section 3.1 of the Participation Agreement, hereby agrees to lease all of the Leased Property (the location of which is more particularly described on Exhibit A hereto) to the Lessee hereunder and the Lessee hereby agrees, expressly for the direct benefit of the Lessor, to lease from the Lessor for the Lease Term, all of the Leased Property. Without limiting the generality of the foregoing, Lessee acknowledges that the leasehold estate conveyed by this Lease and Lessee’s rights hereunder are expressly made subject and subordinate to the terms and conditions of the matters listed in Schedule B to the Title Policy and all other Permitted Liens, and any other Liens not constituting Lessor Liens.

Subject to Articles XII and XVIII hereof, the Lessor will not lease nor otherwise make the Leased Property, in whole or in part, available to any Person other than the Lessee and its permitted successors, assigns and sublessees during the Lease Term, and (without derogating in any way from the Lessor’s rights under Article XV hereof) during the Base Term the Lessee shall have unimpeded physical control of the Leased Property notwithstanding the Lessor’s rights to inspect the Leased Property under Article XV. During the Interim Term, the Lessee will not have unilateral control of the use of the Site nor over the physical access to the Site, the parties hereto agreeing that the Lessee’s use of the Site during the Interim Term shall be as Constructor under the Construction Agency Agreement and as other granted to it by Lessor under the other Operative Documents.

SECTION 2.2. Lease Term.

Unless earlier terminated, the term of this Lease for the Leased Property shall consist of

(a) an interim lease term (the “ Interim Term ”) which shall commence on the Closing Date and shall end on the Completion Date; and

(b) a base lease term (the “ Base Term ”) shall commence on and including the day following the end of the Interim Term (such day, the “ Base Term Commencement Date ”) and ending on December 31, 2020 (the Interim Term, together with the Base Term are hereinafter collectively referred to as the “ Lease Term ”).

ARTICLE III

TAXES

SECTION 3.1. Impositions.

During the Lease Term, Lessee agrees to pay prior to delinquency without penalty or interest all Taxes imposed upon or levied against the Leased Property or any part thereof or interest therein consistent with Section 7.2 of the Participation Agreement. The Site consists of one or more separate tax lots for real property tax assessment purposes. Any Tax relating to a

 

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fiscal period of any taxing Authority falling partially within and partially outside the Lease Term shall be apportioned and adjusted between Lessor and Lessee. Lessee covenants to furnish Lessor, upon Lessor’s request, within forty-five (45) days after the last date when any Tax must be paid by Lessee, official receipts of the appropriate taxing Authority or other proof reasonably satisfactory to Lessor evidencing the payment thereof.

SECTION 3.2. Contests.

Lessee shall have the right to contest any Tax in accordance with Section 7.2(b) of the Participation Agreement.

ARTICLE IV

RENT

SECTION 4.1. Rental Payments.

(a) Commencing on the Closing Date, Lessee will accrue Interim Rent for each Interim Accrual Period through but excluding the Base Term Commencement Date, without offset or deduction. Such Interim Rent will be capitalized on each Interim Accrual Date pursuant to Section 2.5 of the Participation Agreement, without offset or deduction. Lessee will also pay Interim Rent on any date during the Interim Lease Term on which this Lease terminates or upon demand following a Construction Event of Default.

(b) Commencing on the first Payment Date following the Base Term Commencement Date, the Lessee shall pay to the Lessor Basic Rent, without offset or deduction, (i) on each Payment Date, (ii) on the Return Date, and (iii) on any date on which this Lease terminates or upon demand following an Event of Default pursuant to Article XVII.

SECTION 4.2. Supplemental Rent.

The Lessee shall pay to the Lessor, or to whomever shall be entitled thereto as expressly provided herein or in any other Operative Document (and the Lessor hereby directs the Lessee, on behalf of the Lessor, to so pay any such other Person), any and all Supplemental Rent promptly as the same shall become due and payable and, in the event of any failure on the part of the Lessee to pay any Supplemental Rent, the Lessor shall have all rights, powers and remedies provided for herein or by law or in equity or otherwise in the case of nonpayment of Basic Rent. Lessee hereby reaffirms that its obligation to pay Supplemental Rent shall include the payment of any and all Additional Costs. The expiration or other termination of the Lessee’s obligations to pay Interim Rent or Basic Rent hereunder shall not limit or modify the obligations of the Lessee with respect to Supplemental Rent.

SECTION 4.3. Method and Amount of Payment.

Basic Rent and Supplemental Rent shall be paid by wire transfer by the Lessee to the Lessor (or, in the case of Supplemental Rent, to such Person as may be entitled thereto) at such place as the Lessor (or such other Person) shall specify in writing to the Lessee pursuant to Schedule II to the Participation Agreement. Each payment of Rent shall be made by the Lessee

 

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prior to 11:00 A.M. New York time (and payments made after such time shall be deemed to have been made on the next day) at the place of payment in funds consisting of Dollars which shall be immediately available on the scheduled date when such payment shall be due unless the scheduled date shall not be a Business Day, in which case such payment shall be due and made on the next succeeding Business Day. The provisions of the foregoing sentence of this Section 4.3 shall be applicable only to Basic Rent and to Supplemental Rent payable to, or on behalf of or for the account of, the Lessor and any other Indemnitee.

SECTION 4.4. Late Payment.

If any Interim Rent or Basic Rent shall not be paid within three (3) Business Days of the due date applicable thereto, the Lessee shall pay to the Lessor, or if any Supplemental Rent payable to or on behalf or for the account of the Lessor or other Indemnitee is not paid when due, the Lessee shall pay to whomever shall be entitled thereto, in each case as Supplemental Rent, interest at the Overdue Rate (to the maximum extent permitted by law) on such overdue amount from and including the due date thereof (without regard to any applicable grace period) to but excluding the Business Day of payment thereof.

ARTICLE V

NET LEASE

This Lease shall constitute a net lease and, notwithstanding any other provision of this Lease, it is intended that Interim Rent, Basic Rent, Supplemental Rent, the Lease Balance and all other amounts due and payable under the Operative Documents shall be paid without counterclaim, setoff, deduction or defense of any kind and without abatement, suspension, deferment, diminution or reduction of any kind, and the Lessee’s obligation to pay all such amounts throughout the Lease Term is absolute and unconditional. The obligations and liabilities of the Lessee hereunder shall, to the fullest extent permitted by Applicable Laws, in no way be released, discharged or otherwise affected for any reason (other than the indefeasible payment or performance in full of such liability or obligation) including: (a) any defect in the condition, merchantability, design, construction, quality or fitness for use of the Leased Property or any portion thereof, or any failure of the Leased Property or any portion thereof to comply with all Applicable Laws including any inability to occupy or use the Leased Property or any portion thereof by reason of such non-compliance; (b) any damage to, abandonment, loss, contamination of or Release from or destruction of or any requisition or taking of the Leased Property or any portion thereof including eviction; (c) any restriction, prevention or curtailment of or interference with any use of the Leased Property or any portion thereof, including eviction; (d) any defect in title to or rights to the Leased Property or any portion thereof or any Lien on such title or rights or on the Leased Property or any portion thereof; (e) any change, waiver, extension, indulgence or other action or omission or breach in respect of any obligation or liability of or by the Lessor; (f) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceedings relating to the Lessee, the Lessor or any other Person, or any action taken with respect to this Lease by any trustee or receiver of the Lessee, the Lessor or any other Person, or by any court, in any such proceeding; (g) any claim that the Lessee has or might have against any Person, including the Lessor or any Indemnitee arising from any of the circumstances set forth in this sentence (but will not constitute a waiver of such claim); (h) any failure on the part of the Lessor to perform or comply with any of the terms of this Lease, any

 

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other Operative Document or of any other agreement whether or not related to the Overall Transaction; (i) any invalidity or unenforceability or disaffirmance against or by the Lessee of this Lease or any provision hereof or any of the other Operative Documents or any provision of any thereof; (j) the impossibility of performance by the Lessee, the Lessor or both; (k) any action by any court, administrative agency or other Authority; (l) the construction of the New Improvements or any Alterations; (m) the failure of the Lessee to achieve any accounting or tax benefits or the characterization of the transaction intended by Section 2.12 of the Participation Agreement; or (n) any other occurrence whatsoever, whether similar or dissimilar to the foregoing, whether or not the Lessee shall have notice or knowledge of any of the foregoing. Except as specifically set forth in Article XIII or Section 20.1 of this Lease, this Lease shall be noncancellable by the Lessee for any reason whatsoever and the Lessee, to the fullest extent permitted by Applicable Laws, waives all rights now or hereafter conferred by statute or otherwise to quit, terminate or surrender this Lease, or to any diminution, abatement or reduction of Rent payable by the Lessee hereunder. If for any reason whatsoever this Lease shall be terminated or amended in whole or in part by operation of law or otherwise, except as expressly provided in Article XIII or Section 20.1 of this Lease, the Lessee shall, unless prohibited by Applicable Laws, pay to the Lessor (or, in the case of Supplemental Rent, to whomever shall be entitled thereto) a compensation in an amount equal to each Rent payment (including the Lease Balance and any other amount due and payable under any Operative Documents) at the time and in the manner that such payment would have become due and payable under the terms of this Lease if it had not been terminated or amended in whole or in part. Each payment of Rent including any payment of the Lease Balance and Break Even Price made by the Lessee hereunder shall be final and, absent manifest error in the computation of the amount thereof, the Lessee shall not seek or have any right to recover all or any part of such payment from the Lessor or any party to any agreements related thereto for any reason whatsoever. Lessee assumes the sole responsibility for the condition, use, operation, maintenance, and management of the Leased Property and the Lessor shall have no responsibility in respect thereof and shall have no liability for damage to the Leased Property or the property relating thereto of the Lessee or any subtenant of the Lessee on any account or for any reason whatsoever. Without affecting the Lessee’s obligation to pay Interim Rent, Basic Rent, Supplemental Rent, the Lease Balance and all other amounts due and payable under the Operative Documents or to perform its obligations under the Operative Documents, the Lessee may, notwithstanding any other provision of the Operative Documents (other than Section 8.11 of the Participation Agreement), seek damages of any kind or any other remedy at law or equity against the Lessor for such willful misconduct or gross negligence or negligence in the handling of funds or for a breach by the Lessor of its obligations under this Lease or the other Operative Documents.

ARTICLE VI

UTILITY CHARGES

During the Lease Term the Lessee shall pay or cause to be paid all development and improvement charges and all charges for electricity, power, gas, oil, water, telephone, sanitary sewer service and all other rents, utilities or public dues used in or on the Improvements or the Site during the Lease Term. Lessee shall be entitled to receive any credit or refund with respect to any utility charge or public dues paid by the Lessee and the amount of any credit or refund received by the Lessor on account of any utility charges paid by the Lessee, net of the costs and

 

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expenses reasonably incurred by the Lessor in obtaining such credit or refund, which amount shall be promptly paid over to the Lessee. All charges for utilities imposed or public dues with respect to the Improvements and the Site for a billing period during which this Lease expires or terminates (except pursuant to Article XX or Section 21.1(a), in which case the Lessee shall be solely responsible for all such charges) shall be adjusted and prorated on a daily basis between the Lessee and any purchaser of the Leased Property, and each party shall pay or reimburse the other for each party’s pro rata share thereof; provided, that in no event shall the Lessor have any liability therefor.

ARTICLE VII

CONDITION AND USE OF LEASED PROPERTY

LESSEE ACKNOWLEDGES AND AGREES THAT IT IS LEASING THE LEASED PROPERTY “AS IS” IN ITS PRESENT CONDITION, SUBJECT TO (A) ANY RIGHTS OF ANY PARTIES IN POSSESSION THEREOF OR OF THE SITE, (B) THE STATE OF THE TITLE THERETO OR TO THE SITE EXISTING AT THE TIME THE LESSOR ACQUIRED ITS INTEREST IN THE LEASED PROPERTY, (C) ANY STATE OF FACTS WHICH AN ACCURATE SURVEY OR PHYSICAL INSPECTION MIGHT SHOW (INCLUDING ANY SURVEY DELIVERED ON OR PRIOR TO THE CLOSING DATE), (D) ALL APPLICABLE LAWS, AND (E) ANY VIOLATIONS OF APPLICABLE LAWS WHICH MAY EXIST AT THE COMMENCEMENT OF THE LEASE TERM. LESSEE HAS EXAMINED THE LEASED PROPERTY AND (INSOFAR AS THE LESSOR IS CONCERNED) HAS FOUND THE SAME TO BE SATISFACTORY. WITHOUT LIMITING THE SPECIFIC REPRESENTATIONS AND WARRANTIES IN ARTICLE IV OF THE PARTICIPATION AGREEMENT, THE LESSOR HAS NOT MADE NOR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, NOR SHALL BE DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO THE TITLE TO THE LEASED PROPERTY OR THE SITE OR TO THE VALUE, MERCHANTABILITY, HABITABILITY, CONDITION, OR FITNESS FOR USE OF THE LEASED PROPERTY OR THE SITE, OR ANY PART THEREOF, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASED PROPERTY OR THE SITE, OR ANY PART THEREOF, AND THE LESSOR SHALL NOT BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR THE FAILURE OF THE LEASED PROPERTY OR ANY PORTION THEREOF, TO COMPLY WITH ANY APPLICABLE LAWS, except that the Lessor hereby represents and warrants that as of the date of this Lease, the Leased Property is free of Lessor Liens. The Lessee, having been afforded full opportunity to inspect the Leased Property, is satisfied with the results of its inspections and is entering into this Lease solely on the basis of the results of its own inspections, and all risks incident to the matters discussed in the preceding sentence, as between the Lessor, on the one hand, and the Lessee, on the other, are to be borne by the Lessee. The provisions of this Article VII have been negotiated, and, except to the extent otherwise expressly stated, the foregoing provisions are intended to be a complete exclusion and negation of any representations or warranties by the Lessor, express or implied, with respect to the Leased Property (or any interest therein) that may arise pursuant to any law now or hereafter in effect or otherwise.

 

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ARTICLE VIII

LIENS; EASEMENTS

SECTION 8.1. Liens.

During the Lease Term and subject to Lessee’s right to engage in Permitted Contests in accordance with Section 9.5, the Lessee will not directly or indirectly create, incur, assume or suffer to exist any Lien (other than Permitted Liens) on or with respect to any portion of the Leased Property or any portion thereof or the Lessor’s interest therein. Lessee, at its own expense, will promptly pay, satisfy and otherwise take such actions as may be necessary to keep the Leased Property free and clear of, and duly to discharge, eliminate or bond in a manner reasonably satisfactory to the Lessor, any such Lien (other than Permitted Liens) if the same shall arise at any time.

SECTION 8.2. Easements.

Notwithstanding Section 8.1, at the request of Lessee, Lessor shall, from time to time during the Lease Term and upon reasonable advance written notice from Lessee and receipt of the materials specified below, consent to and join in any (i) grant of easements, licenses, rights of way and other rights in the nature of easements, including utility easements which in each case facilitate Lessee’s use, development and operation of the Leased Property, (ii) release or termination of easements, licenses, rights of way or other rights in the nature of easements which releases and terminations are for the benefit of the Site or the Improvements or any portion thereof, (iii) dedication or transfer of portions of the Site, not improved with a building, for road, highway or other public purposes, provided the same are for the benefit of the Site or Improvements, (iv) execution of agreements for ingress and egress and amendments to any covenants and restrictions affecting the Site or Improvements or any portion thereof, and (v) request to any Authority for platting or subdivision or replatting or resubdivision approval with respect to the Site or any portion thereof or any parcel of land of which the Site or any portion thereof forms a part or a request for any variance from zoning or other governmental requirements, provided that :

(a) any such action shall be at the sole cost and expense of Lessee and Lessee shall pay all reasonable out-of-pocket costs of the Lessor in connection therewith (including the reasonable fees of attorneys, architects, engineers, planners, appraisers and other professionals reasonably retained by the Lessor in connection with any such action);

(b) Lessee shall have delivered to the Lessor a certificate of a Responsible Officer of Lessee stating that:

(i) such action will not cause the Leased Property, the Site or the Improvements or any portion thereof to fail to comply in any material respect with the provisions of the Lease or any other Operative Documents, or in any material respect with Applicable Laws; and

(ii) such action will not materially reduce the Fair Market Value, utility or useful life of the Leased Property, the Site or the Improvements or Lessor’s interest therein;

 

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(c) in the case of any release or conveyance, if the Lessor so reasonably requests, the Lessee will cause to be issued and delivered to the Lessor by the Title Insurance Company endorsements to the Title Policies (to the extent available) pursuant to which the Title Insurance Company agrees that its liability for the payment of any loss or damage under the terms and provisions of the Title Policies will not be affected by reason of the fact that a portion of the real property referred to in Schedule A of the Title Policies has been released or conveyed by Lessor; and

(d) there shall be no abatement of Rent as a result thereof.

ARTICLE IX

MAINTENANCE AND REPAIR; ALTERATIONS AND ADDITIONS

SECTION 9.1. Maintenance and Repair; Compliance With Law.

At all times during the Lease Term, the Lessee shall (a) maintain the Improvements and the Site in good operating condition and repair, subject to ordinary wear and tear, and in any event in a manner consistent with other similar facilities or buildings owned or leased by the Lessee and its Subsidiaries; (b) subject to Section 9.5, maintain the Improvements and the Site in accordance with all Applicable Laws (including all Environmental Laws) in all material respects, whether or not such maintenance requires structural modifications; (c) maintain the Improvements and the Site in such a way that the Improvements and the Site shall not constitute a danger to persons or things; (d) comply in all material respects with the Insurance Requirements which are in effect at any time with respect to the Leased Property or any part thereof; (e) use the Improvements and the Site only in accordance with Article X; (f) make all necessary or appropriate repairs, replacements and renewals of the Improvements and the Site or any part thereof which may be required to keep the Improvements and the Site in the condition required by the preceding clauses (a) through (e), whether interior or exterior, structural or nonstructural, ordinary or extraordinary, foreseen or unforeseen, and including repairs, replacements and renewals that would constitute capital expenditures under GAAP if incurred by an owner of property; and (g) procure, maintain and comply in all material respects with all licenses, permits, orders, approvals, consents and other authorizations required for the construction, use, maintenance and operation of the Improvements and the Site and the valid subdivision of the Site from Site 3 under the California Subdivision Map Act upon request by and with the cooperation of the Lessor in connection with a sale, conveyance or transfer of or proposed sale, conveyance or transfer of the Site separate from Site 3 in both cases as contemplated by the Operative Documents which may include the plotting of a lot line between such Sites to the extent necessary for such compliance. The Lessee waives any right that it may now have or hereafter acquire to (x) require the Lessor to maintain, repair, replace, alter, remove or rebuild all or any part of the Improvements or the Site or (y) make repairs at the expense of the Lessor pursuant to any Applicable Laws or other agreements.

SECTION 9.2. Improvements and Alterations.

(a) The Lessee, at the Lessee’s own cost and expense, (i) shall make alterations, renovations, repairs, improvements and additions to the Leased Property or any part thereof and substitutions and replacements therefor (collectively, “ Alterations ”) which are (A) necessary to

 

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repair or maintain the Improvements or the Site in the condition required by Section 9.1 or (B) necessary or advisable to restore the Improvements and the Site to its condition existing prior to a Casualty or Condemnation to the extent required pursuant to Article XIII, and (ii) so long as no Material Default or Event of Default has occurred and is continuing, may undertake Alterations on the Leased Property so long as such Alterations comply in all material respects with Applicable Laws and are consistent and comply with Section 9.1 and subsection (b) of this Section 9.2.

(b) The making of any Alterations pursuant to subsection (a)(i) above of this Section 9.2 must be in compliance with the following requirements:

The Lessee shall not make any Alterations in violation of the terms of any restriction, easement, condition, covenant or other similar matter affecting title to or binding on the Improvements or the Site.

(i) No Alterations shall be undertaken until the Lessee shall have procured and paid for, so far as the same may be required from time to time, all permits and authorizations relating to such Alterations of all municipal and other Authorities having jurisdiction over the Improvements or the Site. Lessor, at the Lessee’s expense, shall join in the application for any such permit or authorization and execute and deliver any document in connection therewith, whenever such joinder is necessary or advisable; provided that, however, such joinder shall not constitute or be deemed to constitute, any assumption or responsibility or liability whatsoever.

(ii) The Alterations shall be completed in a good and workmanlike manner and in compliance in all material respects with all Applicable Laws then in effect and with the Insurance Requirements.

(iii) All Alterations shall, when completed, be of such a character as to not materially diminish (A) the utility of the Improvements as a corporate office complex including a combined corporate office building and research and development laboratory center and any uses ancillary thereto, (B) the then current Fair Market Value as determined by reference to the Appraisal, or (C) the Fair Market Value as determined by reference to the Appraisal as of the scheduled expiration date of the Lease Term.

(iv) The Lessee shall have made adequate arrangements for payment of the cost of all Alterations when due so that the Improvements and the Site shall at all times be free of Liens for labor and materials supplied or claimed to have been supplied to the Improvements or the Site, other than Permitted Liens; provided, that the Lessee shall have the right to engage in Permitted Contests in accordance with Section 9.5.

(v) The Alterations must be located solely on the Site.

SECTION 9.3. Alterations Subject to Lease.

The following Alterations without further act shall be deemed to constitute a part of the Leased Property and be subject to this Lease:

 

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(a) Alterations that are in replacement of or in substitution for a portion of the Improvements;

(b) Alterations that are required to be made pursuant to the terms of Section 9.1 or 9.2(a)(i) hereof; or

(c) Alterations that are Non-severable or immovable.

To the extent any Alterations are deemed to constitute part of the Leased Property pursuant to the preceding sentence, the Lessee hereby acknowledges and agrees that such Alterations will become upon installation property of the Lessor. The Lessee will, at the Lessor’s request, execute and deliver any documents reasonably necessary to evidence or cause the vesting of such interests in and to such Alterations to the Lessor.

If such Alterations are not within any of the categories set forth in clauses (a) through (c) of this Section 9.3 and have not become property of the Lessor in accordance therewith, then such Alterations shall remain the sole property of the Lessee and such Alterations shall not be deemed to be Alterations which are part of the Leased Property. All such Alterations not constituting part of the Leased Property may, so long as no Event of Default is continuing, be removed at any time by the Lessee other than Alterations the removal of which would result in a violation of Applicable Laws. The Lessee shall at its expense prior to the Lease Expiration Date repair any damage to the Improvements or the Site caused by the removal of such Alterations. Lessor (or the purchaser of the Leased Property if the Lessee elects the Return Option or in connection with a sale pursuant to Section 18.1) may purchase from the Lessee any such Alterations (if not already owned by the Lessor) that the Lessee intends to remove from the Improvements or the Site prior to the Lease Expiration Date, which purchase shall be at the Fair Market Value of such Alterations as determined by the Appraiser at the time of such purchase.

SECTION 9.4. Maintenance and Repair Reports.

During the Lease Term, the Lessee shall keep maintenance and repair reports in sufficient detail, on the same basis as records are kept for similar properties owned or leased by the Lessee or its Subsidiaries, to indicate the nature and date of major work done. Such reports shall be kept on file by the Lessee at its offices during the Lease Term, and shall be made available at the Lessee’s office to the Lessor upon reasonable request.

SECTION 9.5. Permitted Contests.

If, to the extent and for so long as (a) a contest of the legality, validity or applicability to the Improvements or the Site or any interest therein of, or the operation, use or maintenance thereof by the Lessee of (i) any Applicable Laws, (ii) any term or condition of, or any revocation or amendment of, or other proceeding relating to, any Governmental Action, or (iii) any Lien or Tax shall be made in good faith, by appropriate proceedings initiated timely and diligently prosecuted, by the Lessee or (b) compliance with such Applicable Laws, Governmental Action, Lien or Tax shall have been excused or exempted by a valid nonconforming use permit, waiver, extension or forbearance, the Lessee shall not be required to comply with such Applicable Laws, Governmental Action, Lien or Tax but only if and so long as any such contest shall constitute a Permitted Contest.

 

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Lessor will not be required to join in any Permitted Contest pursuant to this Section 9.5 unless a provision of any Applicable Laws requires, or, in the good faith opinion of the Lessee, it is helpful to the Lessee that such proceedings be brought by or in the name of the Lessor; and in that event, the Lessor will join in the proceedings or permit them or any part thereof to be brought in its name if and so long as (i) no Construction Event of Default or Event of Default is continuing, (ii) the Lessee has not elected the Return Option, and (iii) the Lessee pays all related out-of-pocket expenses, and the Lessee shall be deemed to have acknowledged and agreed that the Lessor is indemnified therefor pursuant to Section 7.1 of the Participation Agreement.

ARTICLE X

USE

SECTION 10.1. Use.

The Site on which the Improvements are located shall be used solely for the purposes of a corporate office complex including a combined corporate office building and research and development laboratory center and any uses ancillary thereto. Lessee shall not use the Leased Property or any portion thereof for any purpose or in any manner that would diminish (A) the utility of the Improvements as a corporate office complex including a combined corporate office building and research and development laboratory center and any uses ancillary thereto, (B) the then current Fair Market Value as determined by reference to the Appraisal, or (C) the Fair Market Value as determined by reference to the Appraisal as of the scheduled expiration date of the Lease Term. Lessee shall use the Leased Property in compliance in all material respects with (a) any Applicable Laws (including Environmental Laws), except to the extent permitted by Section 9.5, (b) any Insurance Requirements, and (c) all of the Operative Documents. Lessee shall pay, or cause to be paid, all charges and costs required in connection with the use of the Leased Property in accordance with this Lease and the Participation Agreement. Lessee shall not commit or permit any intentional waste of the Leased Property or any material part thereof.

SECTION 10.2. Trade Compliance.

Lessee shall comply with the Trading with the Enemy Act, as amended, and all of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended), federal embargo laws and regulations, and the USA PATRIOT Act in the conduct of all of its activities, including the following: (i) the use, assignment, or sublease of Site or the Improvements by Prohibited Persons; and (ii) the export of any products manufactured at the Improvements to any destination or Prohibited Person.

ARTICLE XI

INSURANCE

SECTION 11.1. Required Coverages.

During the Lease Term, the Lessee will provide or cause to be provided insurance with respect to the Improvements and the Site of a character usually obtained by the Lessee against loss or damage of the kinds and in the amounts customarily insured against by the Lessee with

 

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respect to similar properties, and carry such other insurance as is usually carried by the Lessee with respect to similar properties; provided, that in any event the Lessee will maintain:

(a) Comprehensive General Liability Insurance .

(i) Except during the Interim Term, Lessee will maintain a comprehensive general liability insurance policy on an occurrence basis, including contractual liability and pollution liability insurance for sudden and accidental contamination occurring on, in or about the Improvements or the Site with a combined single limit against claims for third-party bodily injury, including death and third-party property damage in an amount at least equal to $25,000,000 per occurrence and $25,000,000 in the aggregate, which may be a blanket policy. Such coverage may be subject to deductibles or self-insurance up to an amount that is customarily carried by the Lessee with respect to similar property. Such liability insurance shall name the Lessor as an additional insured and the Lessor shall continue to be named as an additional insured and such policy shall remain in effect until at least the third anniversary of the end of the Lease Term.

(ii) During the Interim Term, Lessee will maintain a project specific comprehensive general liability insurance policy, on an occurrence basis, covering itself including contractual liability resulting from risks on, in or in regard to the Leased Property or the Site, with a combined single limit against claims for third-party bodily injury, including death and third-party property damage resulting from risks on, in or in regard to the Leased Property or the Site, in an amount at least equal to $25,000,000 per occurrence and $25,000,000 in the aggregate where applicable, but not a blanket policy covering other projects. Such coverage shall (x) not be subject to any self-insurance or deductible of more than $50,000 per occurrence and (y) be in such form and amounts and covering such risks as were approved by the Lessor on the Closing Date. Lessee may, at its option, purchase excess liability insurance to meet the combined liability insurance requirements. Such liability insurance shall name the Lessor as an additional insured.

(iii) During the Interim Term, Lessee will maintain a pollution legal liability policy covering itself. Such coverage shall be written on a claims made basis and shall apply to sudden and non-sudden pollution conditions. Such policy shall have limits not less than $10,000,000 per occurrence and $10,000,000 in the aggregate claims for bodily injury property damage and cleanup costs and shall be renewed for a period of three years following the Base Lease Term Commencement Date. The foregoing may be satisfied through Lessee’s blanket polution legal liability policy covering all of its properties including the Site.

(b) Start-Up and Delay Insurance . Until the Completion of construction of the New Improvements and commencement of the Basic Term with respect thereto, Lessee shall procure and carry or cause to be procured and carried a delay in start-up insurance as part of the builder’s risk policy insuring that the Carrying Costs will be paid to Lessor if any of the New Improvements are destroyed or rendered untenantable by any cause insured against pursuant to Section 11.1(c). Such coverage, in any event, shall be in a minimum amount equal to five percent (5%) of the related Construction Commitment on a per occurrence basis, naming the Lessor as the sole loss payee and as additional named insured (it being understood that the

 

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requirement of Lessee to obtain and maintain such insurance is not intended to, and shall not be deemed to, reduce, diminish or affect in any way Lessee’s obligation to pay Interim Rent, Basic Rent or Supplemental Rent as and to the extent required by the terms hereof).

(c) Builder’s Risk Insurance . During the Interim Term, and at any other time in connection with any construction of or Alteration to any Improvements, the Lessee shall arrange, on behalf of the Lessor and all contractors, to obtain and keep in force an all-risk builder’s risk insurance with respect to the Improvements and the construction of the New Improvements insuring the Lessor’s interest in the Improvements and the construction of the New Improvements including resulting damage from collapse, coverage for fire, hurricanes, flood and earthquakes and coverage against damage or loss caused by machinery accidents and operational and performance testing and start-up, with extended coverage, in an amount not less than one hundred and ten percent (110%) of the amount set forth in the Construction Budget in effect from time to time. Such coverage shall provide (1) coverage for insuring the buildings, non-temporary structures, machinery, equipment (exclusive of manufacturing and laboratory equipment), facilities, fixtures, supplies and other property constituting part of the Leased Properties including but not limited to boiler and machinery insurance covering pressure vessels, air tanks, boilers, machinery, pressure piping, heating, ventilation and air conditioning equipment, and elevator and escalator equipment, (2) inland transit coverage from deisgnated storage facilities, (3) off-site (within 1000 feet of the insured Improvements) coverage with sublimits sufficient to insure the full replacement value of any equipment, supplies and materials not stored at the Land, (4) removal of debris, (5) increased cost of construction, and (6) coverage for foundations and other property below the surface of the ground, but the interest of contractors, subcontractors and agents in insured property during construction at the insured location to the extent of Lessee’s legal liability for insured physical loss or damage to such property. Such coverage shall (x) not be subject to any self-insurance and shall be subject to a deductible of no more than $50,000 per occurrence except for (i) $100,000 per occurrence for water damage, (ii) $1,000,000 per occurrence for earthquake damage and (iii) $500,000 per occurrence for flood damage, and (y) be in such form and amounts and covering such risks as were approved by the Lessor on the Closing Date. Lessee shall promptly deliver all reports or information to the appropriate recipient which may be required under such policy or policies in order to ensure that the coverage provided with respect to the construction of each New Improvements is in an amount at least equal to the aggregate Advances funded under the Operative Documents for the construction of such New Improvements.

(d) Property Insurance . During the Base Term, Lessee will maintain all-risk insurance (including builder’s risk insurance including coverage for fire, hurricanes, flood and earthquakes and coverage against damage or loss caused by machinery accidents and operational and performance testing and start-up) against loss or damage covering the Leased Property or any portion thereof against such risks customarily maintained by the Lessee with respect to similar properties in an amount not less than the replacement cost of the Improvements, including any costs that may be required to cause the Leased Property to be reconstructed to comply with then current Applicable Laws. Such property insurance coverage may be subject to deductibles or self-insurance up to an amount that is customarily carried by the Lessee with respect to similar property. Such property insurance shall name each of the Lessor as sole loss payee and as an additional insured.

 

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(e) Other Insurance . Insurance shall not cover any terrorism or war risks unless the Lessee carries insurance for such risks generally on similar property it owns or leases.

Insurance provided pursuant to this Section 11.1 (other than permitted self-insurance) shall be written by reputable insurance companies that are financially sound and solvent with a rating of at least “A-” by A.M. Best’s or Standard and Poor’s or by other insurers approved in writing by the Lessor (including consistent with the Lessee’s past practices, insurance companies affiliated with the Lessee). Each policy referred to in this Section 11.1 shall provide that: (i) it will not be canceled or allowed to lapse without renewal, except after not less than thirty (30) days’ prior written notice to the Lessor or ten (10) days’ prior notice to the Lessor in the case of non-payment of premium; (ii) other than standard policy exclusions, there is no provision in the policies where the interests of the Lessor shall be invalidated by any act or negligence of or breach of warranty by the Lessee or any Person having an interest in the Improvements or the Site; (iii) such insurance is primary and non-contributory with respect to any other insurance carried by or available to the Lessor; (iv) the insurer shall waive customary rights of subrogation, setoff, counterclaim, or other deduction, whether by attachment or otherwise, against any additional insured or loss payee; (v) such general liability policy and pollution legal liability policy shall contain a severability clause providing for coverage of the Lessor as if a separate policy had been issued to the Lessor; (vi) the Lessee will notify the Lessor promptly of any policy cancellation, reduction in policy limits, lapse, modification or amendment, and (vii) the insurer shall not allow for unpaid premiums to be paid by the Lessor.

Except as expressly set forth herein, the insurance required to be maintained by the Lessee under this Section 11.1 may be subject to such deductible amounts or periods, as applicable as is consistent with the Lessee’s practice for other properties similar to the Leased Properties owned or leased by the Lessee, and may be carried under blanket policies maintained by or on behalf of the Lessee so long as such policies otherwise comply with the provisions of this Section 11. During the Interim Term, if an insurance claim arises during the Interim Term which is subject to a deductible, such claim shall be funded as an Advance in accordance with the Construction Budget.

SECTION 11.2. Delivery of Insurance Certificates.

Pursuant to Section 3.1(c) of the Participation Agreement, the Lessee shall deliver to the Lessor certificates of insurance reasonably satisfactory to the Lessor evidencing the existence of all insurance required to be maintained hereunder and setting forth the respective coverages, limits of liability, carrier, policy number and period of coverage. Thereafter, throughout the Lease Term, at the time each of the Lessee’s insurance policies is renewed (but in no event less frequently than once every twelve (12) months) or upon written request by the Lessor during the continuance of an Event of Default, the Lessee shall deliver to the Lessor certificates of insurance evidencing that all insurance required by Section 11.1 to be maintained by the Lessee with respect to the Leased Property is in effect.

Lessee agrees that nothing in this Article XI shall prohibit the Lessor from maintaining its own insurance coverage, at its own expense, which coverage shall not reduce the obligations of the Lessee under this Article XI; provided, however, that no such insurance shall be maintained

 

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if its maintenance would prevent the Lessee from maintaining insurance as to the Improvements and the Site with insurers when required to do so herein.

ARTICLE XII

ASSIGNMENT AND SUBLEASING

During the Lease Term, the Lessee may assign, sublease or transfer to any Person, at any time, in whole or in part, its right, title or interest in, to or under this Lease or any portion of the Leased Property without the prior written consent of the Lessor so long as (v) any such assignment, sublease or transfer would not subject the Lessor to a violation of laws or regulations applicable to the Lessor including those promulgated by OFAC, (w) no Event of Default shall have occurred and be continuing or, after giving effect to such assignment, sublease or transfer, would exist, (x) any such sublease is expressly subject and subordinate to this Lease, (y) Lessee remains liable for all obligations under this Lease after giving effect to any such assignment, sublease or transfer, and (z) Lessor retains all of its interests in and benefits of the Cash Collateral and receives prior certification thereof from the Lessee and such other evidence thereof as the Lessor may reasonably request. Unless and until Lessee has exercised the Early Termination Option or the Purchase Option, no sublease may have a term that extends beyond the Base Term Expiration Date. In all cases, Lessee will promptly provide Lessor copies of each such assignment, sublease or transfer.

No sublease will discharge or diminish any of the Lessee’s obligations hereunder and the Lessee shall remain directly and primarily liable under the Lease with respect to the Leased Property and the Operative Documents to which it is a party. Each sublease permitted hereby shall be made and shall expressly provide in writing that it is subject and subordinate to this Lease and the rights of the Lessor hereunder, shall expressly provide for the surrender of the Leased Property by the sublessee at the election of the Lessor after a Construction Event of Default or an Event of Default, shall provide that such provisions may be directly enforced by the Lessor and shall provide that such sublessee expressly agrees to comply with the use restrictions set forth in Article X hereof.

Notwithstanding the first paragraph of this Article XII, Lessee may not assign or transfer its rights and obligations under this Lease and the other Operative Documents unless (a) on the effective date of any such assignment and transfer, no Event of Default exists, (b) the parties enter into an assignment agreement in form and substance reasonably satisfactory to the Lessor, (c) all filings of or in respect of any such assignment and transfer necessary to protect the rights of the Lessor in the Leased Property and the other Operative Documents are made in a timely fashion, (d) without limiting any provisions of this Article XII, any such assignment and transfer shall include an appropriate provision for the operation, maintenance and insurance of the Leased Property in accordance with the terms hereof, (e) the Lessor shall have received opinions of counsel with respect thereto and such other matters as the Lessor may reasonably request, (f) such assignment and transfer will not result in a Material Adverse Effect, (g) such assignment and transfer will not result in the imposition of any unindemnified Taxes, (h) the Lessor shall have received such other documents and instruments and the Lessee shall take such further acts as the Lessor may reasonably request to evidence and facilitate such assignment and transfer, provided that no such document or instrument shall increase Lessee’s obligations or diminish Lessee’s rights under the Operative Documents or otherwise, and (i) such assignment and

 

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transfer will not, with respect to the Lessor, violate the use restrictions set forth in Article X hereof or Applicable Laws and provided, further that, Lessee shall provide to the Lessor not less than thirty (30) days’ prior written notice of such assignment or transfer, such notice to identify the assignee or transferee. No such assignment and transfer will diminish or discharge any of the Lessee’s obligations under this Lease or the other Operative Documents.

ARTICLE XIII

LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE

SECTION 13.1. Event of Loss.

(a) Event of Loss During Construction Period .

(i) If an Event of Loss shall occur during the Construction Period, the Lessee shall give the Lessor prompt written notice of such occurrence and the date thereof and whether such Event of Loss constitutes an Event of Taking.

(ii) If such Event of Loss is an Event of Taking, the Lessor shall be entitled to receive all condemnation proceeds, insurance proceeds and other awards or proceeds with respect to such Event of Taking, up to but not exceeding the Break Even Price, with any excess of such awards or proceeds being paid to the Lessee, and, if such proceeds and awards do not equal or exceed the Break Even Price, the Lessee shall pay the shortfall in an amount not to exceed the Construction Recourse Amount; provided, that if such Event of Taking is due solely to a Force Majeure Event, Lessor shall have no recourse to the Lessee for such shortfall; provided, further, however, this limitation shall not affect the Lessee’s indemnification liability under Section 7.1(f)(i)(1) of the Participation Agreement. Upon the Lessor’s receipt of such proceeds or awards (as may be supplemented by Lessee pursuant to the preceding sentence) equal to the Break Even Price, the Lessor will transfer the Leased Property and all rights to any remaining proceeds and awards to the Lessee or its designee in accordance with Section 23.11 hereof and this Lease shall terminate.

(iii) If such Event of Loss is not an Event of Taking, the Lessor may elect to terminate this Lease, subject to the Lessor’s rights under the Operative Documents with respect to any existing Event of Default. Upon such election to terminate this Lease, the Lessor shall be entitled to receive all property insurance proceeds and other awards or proceeds with respect to such Event of Loss, up to but not exceeding the Break Even Price, with any excess of such proceeds being paid to the Lessee and, if such proceeds and awards do not equal or exceed the Break Even Price, the Lessee shall pay the shortfall in an amount not to exceed the Construction Recourse Amount; provided, that if such Event of Loss is due solely to a Force Majeure Event, Lessor shall have no recourse to the Lessee for such shortfall; provided, further, however, this limitation shall not affect the Lessee’s indemnification liability under Section 7.1(f)(i)(1) of the Participation Agreement. Upon the Lessor’s receipt of such proceeds or awards (as may be supplemented by Lessee pursuant to the preceding sentence) equal to the Break Even Price, the Lessor will transfer the Leased Property and all rights to any remaining

 

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proceeds and awards to the Lessee or its designee in accordance with Section 23.11 hereof and this Lease shall terminate.

(iv) Notwithstanding the Lessor’s election to terminate this Lease with respect to an Event of Loss which is not an Event of Taking, so long as no Material Default or Event of Default shall have occurred, the Lessee may elect to complete construction of the New Improvements and continue this Lease by written notice thereof to the Lessor within ten (10) days of Lessor’s election provided (A) the Lessee delivers a certificate from a Responsible Officer of the Lessee certifying that the remaining Available Commitment of the Lessor (taking into account any approved requests under Section 3.4(e) of the Participation Agreement), together with the proceeds of any insurance received by the Lessor or payable as a result of such Event of Loss, are sufficient to complete construction of the New Improvements in all material respects in accordance with the Plans and Specifications, (as modified or amended by Section 3.2 of the Construction Agency Agreement) and that construction will be completed on or prior to the Construction Period Termination Date (as it may be modified pursuant to Section 3.4(f) of the Participation Agreement), and (B) the Construction Consultant certifies in writing to the Lessor that the representation set forth in (A) above is true and correct. In such case, Lessee, as Constructor, shall continue to cause the New Improvements to be constructed in accordance with the Construction Agency Agreement and other Operative Documents. Additionally, if the Lessor does not elect to terminate this Lease as a result of an Event of Loss which is not an Event of Taking, subject to the Lessee’s early termination option pursuant to Section 20.1 hereof, this Lease shall continue and the Lessee, as the Constructor, shall continue to cause the New Improvements to be constructed pursuant to and in accordance with this Lease and the Construction Agency Agreement.

(b) Event of Loss During Base Term .

(i) Event of Taking . If an Event of Taking shall occur during the Base Term, the Lessee shall give the Lessor prompt written notice of such occurrence and the date thereof and the Lessee shall on the next succeeding Payment Date (the “ Next Date ”) after such Event of Taking shall have occurred or, if such Event of Taking shall have occurred within ten (10) Business Days preceding a Payment Date, then on the next succeeding Payment Date after such Next Date shall have occurred, terminate this Lease and, as compensation for such Event of Taking, pay to the Lessor on such Payment Date the Break Even Price.

(ii) Event of Loss . If an Event of Loss (other than an Event of Taking) shall occur during the Base Term, the Lessee shall give the Lessor prompt written notice of such occurrence and the date thereof which notice shall contain an election by the Lessee to either (A) purchase the Leased Property from the Lessor on the Next Date after such Event of Loss shall have occurred or, if such Event of Loss shall have occurred within ten (10) Business Days preceding a Payment Date, then on the next succeeding Payment Date after such Next Date shall have occurred, at a purchase price equal to the Break Even Price of the Leased Property (and if the Lessee makes such election the Break Even Price shall become due and payable and the Lessee shall purchase the Leased Property on

 

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such Payment Date), or (B) provided no Material Default or Event of Default shall have occurred and be continuing and rebuilding of the Improvements is capable of being completed prior to the end of the Lease Term (as certified in writing by a construction consultant appointed by Lessee and acceptable to the Lessor), rebuild the Improvements and continue the Lease. If the Lessee elects to rebuild the Improvements, the Lessee shall rebuild the Improvements to the condition required to be maintained pursuant to Section 9.1 and so as not to diminish (A) the utility of the Improvements as a corporate office complex including a combined corporate office building and research and development laboratory center and any uses ancillary thereto, (B) the then current Fair Market Value as determined by reference to the Appraisal, or (C) the Fair Market Value as determined by reference to the Appraisal as of the scheduled expiration date of the Lease Term.

(c) Purchase and Termination. Upon receipt in full by the Lessor of the Break Even Price pursuant to this Section 13.1, the Lease shall terminate and the obligations of the Lessee hereunder and under the other Operative Documents (other than any obligations expressed herein, or any other Operative Document as surviving termination of this Lease (including any obligations with respect to any existing Event of Default)) shall terminate as of the date of such receipt. Upon such receipt in full of the Break Even Price, the Leased Property and all rights to any remaining awards or proceeds shall be transferred to the Lessee or its designee in accordance with Section 23.11 hereof.

(d) Application of Payments Relating to an Event of Loss . Subject to Section 13.4, all condemnation proceeds and property insurance proceeds received at any time by Lessee during the Lease Term from any Authority or other Person with respect to any Event of Loss shall be promptly remitted to the Lessor (up to, but not exceeding, the Break Even Price) and, upon the payment in full of the Break Even Price, the Lessor shall assign to the Lessee all rights to any condemnation proceeds and property insurance proceeds and any such condemnation proceeds and property insurance proceeds remaining thereafter or thereafter received shall be paid by the Lessor (whichever shall receive same) over to Lessee, or as Lessee may direct, and any receipt of such proceeds shall satisfy the Lessee’s obligations under Section 13.1.

SECTION 13.2. Condemnation.

In case of a Condemnation for temporary use of all or a portion of the Leased Property or a Condemnation of a portion of the Leased Property, in each case which is not an Event of Taking, this Lease shall remain in full force and effect, without any abatement or reduction of Rent, and the proceeds and awards received from any Authority relating to such Condemnation shall, so long as no Material Default or Event of Default shall have occurred and be continuing, be paid by the Lessor to the Lessee and, to the extent applicable, shall be used by the Lessee to repair and restore the affected Leased Property to the condition required by Section 9.1. Notwithstanding anything herein to the contrary, any portion of such proceeds that is awarded with respect to the time period after the expiration or termination of the Lease Term (unless the Lessee shall have exercised an option to purchase the Leased Property and consummated such purchase) shall be paid to the Lessor; provided, that if the Lessee has paid the Break Even Price to the Lessor, such proceeds (or the portion of such proceeds in excess of portion thereof applied to the Break Even Price) shall be paid by the Lessor over to the Lessee.

 

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SECTION 13.3. Casualty.

Upon any Casualty during the Base Term with respect to the Leased Property which is not an Event of Loss, this Lease shall remain in full force and effect, without any abatement or reduction of Rent and, if the cost of repair would exceed $2,000,000 (as reasonably determined by Lessee), the Lessee shall give to the Lessor written notice of such Casualty. As soon as practicable after such Casualty with respect to the Leased Property has occurred, the Lessee shall repair and rebuild the affected portions of the Leased Property suffering such Casualty (or cause such affected portions to be repaired and rebuilt) to the condition required to be maintained by Section 9.1 and so that the Fair Market Value, utility, useful life and functional capability of such item as restored is at least equivalent to the Fair Market Value, utility and useful life and functional capability of such item as in effect immediately prior to the occurrence of such Casualty (assuming the Improvements were being maintained in accordance with Section 9.1); provided, that at all times during such repair or rebuilding the Lessee shall maintain the Improvements in accordance with Section 9.1; provided further, that if such Casualty occurs during the Construction Period, the cost of any such repair or rebuilding shall be financed with (i) the proceeds of any insurance received by the Lessor with respect to such Casualty and (ii) Advances from the Lessor.

SECTION 13.4. Proceeds.

If a Material Default or an Event of Default shall have occurred and be continuing, any proceeds received from any Authority or any insurance proceeds, in either case with respect to any Casualty or an Event of Loss, shall be held by the Lessor. So long as no Material Default or Event of Default shall have occurred and be continuing, any such proceeds received from any Authority or any insurance proceeds with respect to any Casualty, or if the Lessee has elected to rebuild the Improvements upon an Event of Loss pursuant to Section 13.1 hereof, with respect to such Event of Loss, shall be paid by the Lessor or by the insurers over to the Lessee up to $2,000,000. Any such proceeds received from any Authority or any insurance proceeds with respect to any Casualty or, if the Lessee has elected to rebuild the Improvements, with respect to an Event of Loss, in each case, not paid over to the Lessee in accordance with the previous sentence, shall be held by the Lessor and made available to the Lessee to pay costs actually incurred by the Lessee to restore the Leased Property as required herein in accordance with Section 13.1, as applicable, and any proceeds received from any Authority or any insurance proceeds remaining after such restoration shall be paid by the Lessor over to the Lessee.

SECTION 13.5. Negotiations.

In the event any part of the Leased Property becomes subject to condemnation or requisition proceedings during the Lease Term, the Lessee shall give notice thereof to the Lessor promptly after the Lessee has knowledge thereof and, to the extent permitted by any Applicable Laws, the Lessee shall control the negotiations with the relevant Authority unless an Event of Default has occurred and is continuing or such condemnation or requisition occurs during the Construction Period, in which case the Lessor shall be entitled to control such negotiations in consultation with the Lessee; provided, that in any event the Lessor may participate at the Lessor’s expense (or if an Event of Default is continuing or such negotiations occur during the Construction Period, at the Lessee’s expense) in such negotiations; and provided, that during the

 

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Construction Period, no settlement will be made without the Lessor’s prior written consent, not to be unreasonably withheld. Lessee shall give to the Lessor such information, and copies of such documents, which relate to such proceedings, or which relate to the settlement of amounts due under insurance policies required by Section 11.1, and are in the possession of the Lessee, as are reasonably requested by the Lessor. If the proceedings relate to an Event of Taking, the Lessee shall act diligently in connection therewith. Nothing contained in this Section 13.5 shall diminish the Lessor’s rights with respect to condemnation proceeds and property insurance proceeds under Section 13.1.

SECTION 13.6. No Rent Abatement.

Rent shall not abate hereunder by reason of any Casualty, any Event of Loss, any Event of Taking or any Condemnation of any portion of the Leased Property, and the Lessee shall continue to perform and fulfill all of the Lessee’s obligations, covenants and agreements hereunder notwithstanding such Casualty, Event of Loss, Event of Taking or Condemnation until the Lease Expiration Date.

ARTICLE XIV

CERTAIN DUTIES AND RESPONSIBILITIES

Lessor undertakes to perform such duties and only such duties as are specifically set forth herein and in the other Operative Documents, and no implied covenants or obligations shall be read into this Lease against the Lessor, and the Lessor agrees that it shall not, nor shall it have a duty to, manage, control, use, sell, maintain, insure, register, lease, operate, modify, dispose of or otherwise deal with the Improvements or the Site in any manner whatsoever, except as required by the terms of the Operative Documents and as otherwise provided herein.

ARTICLE XV

INSPECTION

Upon seven (7) Business Days prior notice to the Lessee, the Lessor or its authorized representatives (the “ Inspecting Parties ”) at any time during the Lease Term may inspect (a) the Improvements and the Site and (b) the books and records of the Lessee and its Affiliates relating to the Improvements and the Site and make copies and abstracts therefrom. All such inspections shall be (i) during the Lessee’s normal business hours, (ii) subject to the Lessee’s reasonable confidentiality requirements, and (iii) at the expense and risk of the Inspecting Parties, except that, if a Default or Event of Default has occurred and is continuing, the Lessee shall reimburse the Inspecting Parties for the reasonable out-of-pocket costs and expenses of such inspections and, except for the Inspecting Party’s gross negligence or willful misconduct, such inspection shall be at the Lessee’s risk. No inspection shall unreasonably interfere with the Lessee’s operations. None of the Inspecting Parties shall have any duty to make any such inspection or inquiry. None of the Inspecting Parties shall incur any liability or obligation by reason of making any such inspection or inquiry unless and to the extent such Inspecting Party causes damage to the Improvements or the Site or any property of the Lessee or any other Person during the course of such inspection.

 

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ARTICLE XVI

ENVIRONMENTAL MATTERS

SECTION 16.1. Environmental Matters.

At the Lessee’s sole cost and expense, the Lessee shall promptly and diligently and in accordance with Applicable Laws commence and complete any response, clean up, remedial or other action necessary to remove, clean up or remediate any Environmental Violation with respect to the Improvements or the Site to the extent required of the Lessee or the Lessor in order to comply with Applicable Laws (a “ Remediation ”). Lessee shall, upon completion of remedial action by the Lessee (i) with respect to any Material Environmental Violation described in clause (ii) of the definition thereof, cause to be prepared by an authorized representative of the Lessee a certificate describing in sufficient detail such Environmental Violation and the actions taken by the Lessee (or its agents) in response to such Environmental Violation and a statement of such authorized representative of the Lessee that such Environmental Violation has been remedied in compliance in all material respects with Applicable Laws and (ii) with respect to any other Material Environmental Violation, cause to be prepared by the Environmental Expert a report describing in sufficient detail such Environmental Violation and the actions taken by the Lessee (or its agents) in response to such Environmental Violation, and a statement by the Environmental Expert that the Environmental Violation has been remedied in compliance in all material respects with Applicable Laws. Each Environmental Violation shall be remedied prior to the Lease Expiration Date unless the Leased Property has been purchased by the Lessee in accordance with Section 20.1, 20.2 or 22.1(a), provided that if remedying such Environmental Violation requires continued operation of a remediation system or monitoring of testing wells or similar ongoing testing, the Lessee shall have access at reasonable times and shall remain obligated to perform such actions unless the Lessor, in its sole discretion, notifies Lessee to terminate such actions. Nothing in this Article XVI shall reduce or limit the Lessee’s obligations under Article VII of the Participation Agreement (which obligations shall include any Claims arising from such actions).

SECTION 16.2. Notice of Environmental Matters.

Promptly upon the Lessee’s obtaining knowledge of the existence of any Material Environmental Violation with respect to the Improvements or the Site, the Lessee shall notify the Lessor in writing of such Material Environmental Violation. Promptly, but in any event within thirty (30) days from the date a Responsible Officer of the Lessee has actual knowledge thereof, the Lessee shall provide to Lessor written notice of any pending or, to the Lessee’s knowledge, threatened (in writing) claim, action or proceeding involving any Material Environmental Violation with respect to the Improvements or the Site. All such notices shall describe in reasonable detail the nature of the claim, action or proceeding and the Lessee’s proposed response thereto. In addition, the Lessee shall provide to the Lessor, within thirty (30) days of receipt, copies of all material written communications with any Authority relating to any Material Environmental Violation. Lessee shall also promptly provide such detailed reports of any Material Environmental Violation as may reasonably be requested by the Lessor. For purposes hereof, “ Material Environmental Violation ” shall mean any Environmental Violation (i) which imposes or, in the good faith judgment of the Lessee or the Lessor, could reasonably be

 

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expected to impose criminal liability on the Lessor, or (ii) the cost of which to remediate is or could reasonably be expected to be in excess of $1,000,000.

ARTICLE XVII

EVENTS OF DEFAULT

The occurrence of any one or more of the following events, whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body, shall constitute an “ Event of Default ”:

(a) the Lessee shall fail to make any payment of Interim Rent, Basic Rent when due and such failure shall continue for a period of three (3) Business Days after notice thereof, or the Lessee shall fail to make any payment of the Break Even Price, Lease Balance or other amounts due and payable under Article XIII, Article XX, Section 21.1(a) or Article XXII when due;

(b) the Lessee shall fail to make payment of any Supplemental Rent (other than any Supplemental Rent described in clause (a) above) when due and such failure shall continue for a period of ten (10) Business Days after notice thereof;

(c) the Lessee shall fail to maintain insurance as required by Article XI of this Lease;

(d) the Lessee shall fail to perform or observe any of the terms, covenants, conditions and agreements set forth in Articles XXI and XXII of this Lease other than the failure to give notice of an end of term option pursuant to Section 21.1 hereof;

(e) any representation, warranty, certification or statement made or deemed to be made by the Lessee under this Lease, any other Operative Document (except as to any Other Lease Document) or in any certificate, financial statement or other document delivered pursuant hereto or thereto, shall at any time prove to have been incorrect in any material respect when made or deemed made and Lessee shall fail to cure the underlying facts causing such representation, warranty, certification or statement to be incorrect in all material respects for a period of ten (10) Business Days after the earlier of Actual Knowledge or notice thereof;

(f) the Lessee shall default in the performance or observance of any term, covenant, condition or agreement contained in this Lease (other than as specifically provided for otherwise in this Article XVII) or any other Operative Document (except as to any Other Lease Document) and such default shall continue for a period of thirty (30) days after the earlier of Actual Knowledge thereof or written notice thereof has been given to the Lessee; provided, however, that if such failure is capable of cure but cannot be cured by payment of money or cannot be cured by diligent efforts within such thirty (30) day period but such diligent efforts shall be properly commenced within such thirty (30) day period and the Lessee is diligently pursuing, and shall continue to pursue diligently remedy of such failure, such cure period shall be extended for an additional period of time in excess of such cure period as may be necessary to cure, not to extend beyond the earlier to occur of (i) the Lease Expiration Date or (ii) one hundred and twenty (120) days after the earlier of Actual Knowledge thereof or written notice thereof having been given to the Lessee;

 

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(g) (i) Lessee or any of its Subsidiaries shall default beyond any applicable period of grace in any payment of principal of or interest on any indebtedness for borrowed money on which Lessee or any of its subsidiaries is liable in an aggregate principal amount then outstanding of $50,000,000 or more or (ii) an event of default (other than a failure to pay principal or interest) as defined in any mortgage, indenture, agreement or instrument under which there may be issued, or by which there may be secured or evidenced, any such indebtedness shall happen and shall result in such indebtedness becoming or being declared due and payable prior to the date on which it could otherwise become due and payable;

(h) the Lessee or any material Subsidiary shall file a voluntary petition of insolvency, bankruptcy or a voluntary petition or an answer seeking reorganization in a proceeding under any bankruptcy, insolvency or other similar laws (as now or hereafter in effect) or an answer admitting the material allegations of a petition filed against the Lessee in any such proceeding; or the Lessee shall, by voluntary petition, answer or consent, seek relief under the provisions of Bankruptcy Code or any other now existing or future bankruptcy, insolvency or other similar law providing for reorganization, administration or winding-up or for an agreement, composition, extension or adjustment with their respective creditors, or shall adopt a resolution of liquidation, including but not limited to, any petition or notice filed by the Board of Directors of the Lessee or such Subsidiary or the Lessee shall admit in writing its inability or fail generally to pay its debts or the Lessee shall seek the appointment of a trustee in bankruptcy, administrator or a receiver for any kind of insolvency proceedings for itself or any substantial portion of its assets, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall take any corporate action to authorize any of the foregoing;

(i) an involuntary case or other proceeding shall be commenced against the Lessee or any material Subsidiary seeking its bankruptcy, liquidation, reorganization, winding-up or other relief with respect to it or its debts under the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of sixty (60) consecutive days; or the Lessee or any material Subsidiary shall be declared bankrupt or any other order for relief shall be entered against the Lessee or any material Subsidiary under the U.S. Federal bankruptcy laws or any other relevant bankruptcy laws of any jurisdiction;

(j) a final judgment or order for the payment of money in excess of $125,000,000 (to the extent not covered by insurance) shall be rendered against the Lessee or any material Subsidiary and the Lessee or such Subsidiary shall not discharge the same or provide for its discharge in accordance with its terms, or procure a stay of execution thereof, within sixty (60) days after the date of entry thereof and, in the case of any such stay of execution, within said period of sixty (60) days (or such longer period during which execution of such judgment shall have been stayed) appeal therefrom and cause the execution thereof to be stayed during such appeal;

(k) a Change in Control shall occur;

 

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(l) (i) Lessee or any ERISA Affiliate shall fail to pay within thirty (30) days of the due date thereof an amount or amounts aggregating in excess of $100,000,000 which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; (ii) notice of intent to terminate a Plan having unfunded benefit liabilities (within the meaning of Section 4001(a)(18) of ERISA) in excess of $100,000,000 (a “ Material Plan ”) shall be filed under Title IV of ERISA by Lessee or any ERISA Affiliate, any plan administrator or any combination of the foregoing; (iii) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan; (iv) the failure of Lessee or any ERISA Affiliate to make any required contribution to a Multiemployer Plan unless the failure is cured within thirty (30) days, (v) the withdrawal or partial withdrawal of Lessee or any ERISA Affiliate from any Multiemployer Plan, (vi) the receipt by Lessee or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from Lessee or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, “ insolvent ” (within the meaning of Section 4245 of ERISA) or in “ reorganization ” (within the meaning of Section 4241 of (ERISA) or (vii) the imposition of liability on Lessee or any ERISA Affiliate by reason of the application of Section 4212(c) of ERISA, in each case with respect to clauses (iv)-(vii), to the extent that such event, taken together with any other such events described in clauses (iv)-(vii), could reasonably be expected to result in Lessee incurring aggregate liability in excess of $100,000,000;

(m) any Operative Document (except as to any Other Lease Document) or any assignment, security interest or Lien granted thereunder (except in accordance with its terms), in whole or in part, terminates, ceases to be a legal, valid and binding enforceable obligation of the Lessee or any of its Affiliates or the Lessee or any of its Affiliates, directly or indirectly, contests in any manner in any court the effectiveness, validity, binding nature or enforceability thereof; or any assignment, security interest or Lien securing the Lessee’s obligations under the Operative Documents, in whole or in material part, ceases to be perfected (except as the result of any affirmative act of the Lessor, failure by the Lessor to file a UCC continuation statement or by operation of law) with the same priority as was in effect on the Closing Date;

(n) a Construction Event of Default shall occur; or

(o) an Event of Default shall have occurred under and as defined in the Pledge Agreement (Fremont 3E).

ARTICLE XVIII

ENFORCEMENT

SECTION 18.1. Remedies.

(a) During the continuation of an Event of Default and notwithstanding any Event of Loss or termination of the Lease pursuant to Article XIII, at the Lessor’s option and without limiting the Lessor in the exercise of any other right or remedy the Lessor may have on account of such Event of Default, and without any further demand or notice, the Lessor may to the fullest extent permitted under Applicable Laws cause the following to occur:

 

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(i) By notice to the Lessee, the Lessor may terminate the Lessee’s right to possession of the Leased Property.

(ii) The Lessor may (i) demand that Lessee, and Lessee shall upon the written demand of the Lessor, return the Leased Property promptly to the Lessor in the condition required by Section 22.5 and the Lessor shall not be liable for the reimbursement of Lessee for any costs and expenses incurred by Lessee in connection therewith, and (ii) without prejudice to any other remedy which the Lessor may have for possession of the Leased Property, and to the extent and in the manner permitted by Applicable Laws, enter upon the Site and Improvements and take immediate possession of (to the exclusion of Lessee) the Leased Property or any part thereof and expel or remove Lessee, by summary proceedings or otherwise, all without liability to Lessee for or by reason of such entry or taking of possession (provided that, the Lessor shall remain liable for actual damages caused by its bad faith, gross negligence or willful misconduct), whether for the restoration of damage to property caused by such taking of possession or otherwise and, in addition to the Lessor’s other damages, Lessee shall be responsible for all actual and reasonable costs and expenses incurred by the Lessor in connection with any reletting, including brokers’ fees and all costs of any alterations or repairs made by the Lessor;

(iii) The Lessor may terminate this Lease with respect to all or any part of the Leased Property and/or declare the aggregate outstanding Lease Balance to be immediately due and payable, and the Lessor shall be entitled to (x) recover from the Lessee the following amounts and (y) take the following actions:

(1) the Lessee shall pay all accrued and unpaid Rent hereunder (including Interim Rent, Basic Rent and Supplemental Rent) for the period commencing on the Closing Date through the Final Rent Payment Date with respect to the Leased Property;

(2) the Lessor may elect either of the following with respect to any or all of the Leased Property:

(A) the Lessor may demand, by written notice to the Lessee specifying a payment date (the “ Final Rent Payment Date ”) on a Business Day no earlier than thirty (30) days after the date of such notice but, in any event, no later than the date the Leased Property or part thereof is sold pursuant to clause (B)(2) hereof, that the Lessee purchase the Leased Property, and the Lessee shall pay to the Lessor, on the Final Rent Payment Date (in lieu of Interim Rent and Basic Rent due after the Final Rent Payment Date), an amount equal to the sum of (x) the Lease Balance computed for the period commencing on the Closing Date to and including the Final Rent Payment Date, plus (y) all accrued and unpaid Rent due and unpaid for the period commencing on the Closing Date to and including the Final Rent Payment Date (less any amounts paid by the Lessee under clause (x) above), and upon payment of such amount, and the amount of all other sums due and payable by the Lessee under this Lease and the other Operative Documents (and interest at the Overdue

 

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Rate on the amounts payable under this clause (B)(1) from the Final Rent Payment Date to the date of actual payment), the Leased Property shall be transferred to the Lessee or its designee pursuant to Section 23.11; or

(B) the Lessor may sell its interest in the Leased Property and/or pursue any and all remedies under the Security Documents, and, in any event, the Lessee shall pay to the Lessor an amount equal to the excess, if any, of (x) all amounts described in clause (B)(1) above due the Lessor over (y) the net Sale Proceeds received by the Lessor from the foregoing sale (provided, that in calculating such net Sale Proceeds, all fees, costs, expenses and Taxes to the extent not indemnified and not paid by the Lessee pursuant to Section 7.2 of the Participation Agreement incurred by the Lessor in connection with such sale, including legal fees, shall be deducted from such Sale Proceeds);

(3) Any other amount necessary to compensate the Lessor for all the damages caused by or resulting from the Lessee’s failure to perform the Lessee’s obligation under this Lease, including the costs and expenses (including reasonable attorneys’ fees, advertising costs and brokers’ commissions) of recovering possession of the Leased Property, removing Persons or property from the Leased Property, placing the Leased Property in good order, condition, and repair, preparing and altering the Leased Property for reletting, and all other costs and expenses of reletting; and

(4) Such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by Applicable Laws.

(iv) The Lessor may exercise any and all rights and remedies under the Security Documents including with respect to the Cash Collateral subject to the Pledge Agreement and accounts under the Blocked Account Agreement.

(v) If an Event of Default under this Lease is continuing, this Lease shall continue in effect for so long as the Lessor does not terminate this Lease, and the Lessor may enforce all of the Lessor’s rights and remedies under this Lease, including the right to recover the Rent hereunder (including Interim Rent and Basic Rent (when applicable) and Supplemental Rent) as it becomes due under this Lease. Lessee’s right to possession shall not be deemed to have been terminated by the Lessor except pursuant to clause (i) above. The following do not constitute a termination of this Lease:

(1) Acts of maintenance or preservation or efforts to relet the Leased Property; and

(2) Withholding of consent to assignment or subletting, or terminating a subletting or assignment by the Lessee.

(vi) In the event that the Lessor elects to continue this Lease in full force and effect following the termination of the Lessee’s right of possession of the Improvements, the Lessor, to the maximum extent permitted by Applicable Laws, may enforce all its

 

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rights and remedies under this Lease including the right to recover Rent hereunder as it becomes due. During the continuance of an Event of Default or following the termination of the Lessee’s right to possession of the Improvements, the Lessor may enter the Improvements and the Site in accordance with Applicable Laws without terminating this Lease and sublet all or any part of the Leased Property for the Lessee’s account to any Person, for such term (which may be a period beyond the remaining Lease Term), at such rents and on such other terms and conditions as are commercially reasonable. In the event of any such subletting, rents received by the Lessor from such subletting shall be applied (a) first, to the payment of the reasonable costs incurred by the Lessor in maintaining, preserving, altering and preparing the Leased Property for subletting and other reasonable costs of subletting, including reasonable brokers’ commissions and attorneys’ fees; (b) second, to the payment of Rent hereunder then due and payable; (c) third, to the payment of future Rent hereunder as the same may become due and payable hereunder; (d) fourth, to the payment of all other obligations of the Lessee hereunder and under the other Operative Documents (including the Lease Balance), and (e) fifth, the balance, if any, shall be paid to the Lessee upon (but not before) expiration of the Lease Term. If the rents received by the Lessor from such subletting, after application as provided above, are insufficient in any period to pay the Rent due and payable hereunder for such period, the Lessee shall pay such deficiency to the Lessor upon demand. Notwithstanding any such subletting for the Lessee’s account without termination, the Lessor may at any time thereafter, by written notice to the Lessee, elect to terminate this Lease.

(vii) The Lessor may exercise any other right or remedy that may be available to it under Applicable Laws or in equity, or proceed by appropriate court action (legal or equitable) to enforce the terms or to recover damages for the breach hereof, including those arising from a breach by the Lessee of its obligations under Section 20.2 hereof. Separate suits may be brought to collect any such damages for any Rent installment period(s), and such suits shall not in any manner prejudice the Lessor’s right to collect any such damages for any subsequent Rent installment period(s), or the Lessor may defer any such suit until after the expiration of the Lease Term, in which event such suit shall be deemed not to have accrued until the expiration of the Lease Term.

(viii) The Lessor may retain and apply against the Lessor’s damages all sums which the Lessor would, absent such Event of Default, be required to pay to, or turn over to, the Lessee pursuant to the terms of this Lease.

The Lessee acknowledges and agrees that upon the declaration of an Event of Default the amount due and owing by the Lessee to the Lessor hereunder shall be the Lease Balance and that to the maximum extent permitted by Applicable Laws, the Lessee waives any right to contest the Lease Balance as the liquidated sum or agreed upon sum due and owing.

(b) In the event that an Event of Default is declared (or deemed declared) solely and exclusively on the basis of one or more 97-1 Events of Default,

(x) a claim or demand by the Lessor for payment by Lessee of or in respect of the Lease Balance under Section 18.1(a) hereof shall be limited as follows:

 

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(i) any obligation of the Lessee to pay the Lease Balance and amounts due under clauses (C) and (D) of Section 18.1(a)(iii) shall be reduced to be an obligation to pay an amount equal to the Recourse Deficiency Amount; provided, however, that if Lessee shall not pay the full Lease Balance and such other amounts, the Lessor shall not have any obligation to transfer the Leased Property to the Lessee or its designee as provided in clause (B)(1) of Section 18.1(a)(iii); and

(ii) any obligation of the Lessee to pay any shortfall determined by reference to the Lease Balance as provided in clauses (B)(2) of Section 18.1(a)(iii), and amounts due under clauses (C) and (D) of Section 18.1(a)(iii) shall be revised to be an obligation to pay the lesser of (i) such shortfall plus such other amounts and (ii) the Recourse Deficiency Amount; and

the references to “ Lease Balance ” in the last paragraph of Section 18.1(a) and in Section 18.2 shall be deemed references to the amount described in clause (i) or clause (ii) above, as applicable, provided, however, that the foregoing limitation shall not limit or affect any other rights of the Lessor as Lessor shall have all rights and remedies available under the Operative Documents or available at law, equity or otherwise including the right to demand the payment of Supplemental Rent (other than the Lease Balance) and the right to require surrender and return or sale to a third party of the Leased Property all as set forth herein; and

(y) if Section 18.1(a)(vi) is applicable, the reference to Lease Balance in clause (d) thereof shall be a reference to the Recourse Deficiency Amount so long as the Lease has not been terminated.

SECTION 18.2. Proceeds of Sale; Deficiency.

(a) All payments received and amounts held or realized by the Lessor at any time when an Event of Default shall be continuing and after the Lease Balance shall have been accelerated pursuant to this Article XVIII as well as all payments or amounts then held or thereafter received by the Lessor (except for rents received by the Lessor from subletting pursuant to Section 18.1(a)(vi), which shall be distributed as set forth therein) and the proceeds of sale pursuant to Section 18.1(a)(iii)(B)(2) shall be distributed forthwith upon receipt by the Lessor as follows:

first , to the Lessor, so much of such amount as is required to reimburse the Lessor for any fees, costs, expenses, Taxes or other loss incurred by it (to the extent not previously reimbursed);

second , to the Lessor, so much of such amounts as are required to pay all expenses or fees incurred by the Lessor in connection therewith including Break Funding Amounts, if any;

third , to the Lessor, so much of such amount as is required to pay all accrued Yield thereon;

fourth , to the Lessor, so much of such amounts as are required to pay in full the outstanding amount of the Lease Balance;

 

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fifth , to the Lessor, so much of such amounts as are required to pay all outstanding obligations of Lessee pursuant to the Operative Documents including all indemnities which are due and payable; and

sixth , to Lessee, the balance of such amount, if any.

SECTION 18.3. Waiver of Certain Rights.

To the maximum extent permitted by Applicable Laws, (a) the Lessee hereby waives the benefit of any appraisement, valuation, stay, extension, reinstatement and redemption laws now or hereafter in force and all rights of marshalling in the event of any sale of the Leased Property or any interest therein and (b) if this Lease shall be terminated pursuant to this Article XVIII, the Lessee waives, to the fullest extent permitted by Applicable Laws, (i) any notice of re-entry or the institution of legal proceedings to obtain re-entry or possession, (ii) any right of redemption, re-entry or repossession, (iii) the benefit of any laws now or hereafter in force exempting property from liability for rent or for debt or limiting the Lessor with respect to the election of remedies, (iv) any other rights which might otherwise limit or modify any of the Lessor’s rights or remedies under this Article XVIII, and (v) any rights now or hereafter conferred under California Applicable Laws that may require the Lessor to sell, lease or otherwise use the Leased Property, or any part thereof in mitigation of the Lessor’s damages upon the occurrence of an Event of Default or that may otherwise limit or modify any of the Lessor’s rights or remedies under this Article XVIII.

SECTION 18.4. Remedies Cumulative; No Waiver; Consents.

To the extent permitted by, and subject to the mandatory requirements of, Applicable Laws, each and every right, power and remedy herein specifically given to the Lessor or otherwise in this Lease shall be cumulative and shall be in addition to every other right, power and remedy herein specifically given or now or hereafter existing at law, in equity or by statute, and each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised from time to time and as often and in such order as may be deemed expedient by the Lessor, and the exercise or the beginning of the exercise of any power or remedy shall not be construed to be a waiver of the right to exercise at the same time or thereafter any other right, power or remedy. No delay or omission by the Lessor in the exercise of any right, power or remedy or in the pursuit of any remedy shall impair any such right, power or remedy or be construed to be a waiver of any default on the part of the Lessee or be an acquiescence therein. Lessor’s consent to any request made by the Lessee shall not be deemed to constitute or preclude the necessity for obtaining the Lessor’s consent, in the future, to all similar requests. No express or implied waiver by the Lessor of any Event of Default shall in any way be, or be construed to be, a waiver of any future or subsequent Default or Event of Default.

SECTION 18.5. Limitation of Recourse Liability.

(a) Notwithstanding anything set forth herein or in the other Operative Documents to the contrary with respect to the Lessee’s obligations to pay the Lease Balance under this Article XVIII, the Lessor shall have full recourse to the Leased Property, the other Lessee Collateral and

 

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the proceeds thereof and to any non-LAM Person. However, recourse to the Lessee for such payment obligation prior to the Base Term Commencement Date shall be limited as follows:

(i) upon a termination of this Lease caused by or arising out of (1) a failure to Complete the New Improvements by the Construction Period Termination Date due to Force Majeure Events as such date may be extended under Section 3.4(f) of the Participation Agreement, (2) an Event of Taking due to a Force Majeure Event during the Construction Period, or (3) an Event of Loss due to a Force Majeure Event during the Construction Period, there shall be no recourse to the Lessee provided, however, the Lessee’s liability under Sections 13.1(a)(ii) and 13.1(a)(iii) hereof with respect to clauses (2) and (3) above, respectively, shall remain in effect;

(ii) upon the occurrence and during the continuation of an Event of Default caused by or arising out of a Specified Event or upon a termination of this Lease caused by or arising out of any Specified Event, the Lessee shall be obligated to the full extent of its payment obligations under the Operative Documents (other than the Other Lease Documents);

(iii) upon the occurrence and during the continuation of an Event of Default caused by or arising out of a Construction Event of Default, the Lessee’s payment obligation shall be limited to an amount not to exceed the Construction Recourse Amount, provided, that this limitation shall not affect the Lessee’s indemnification liability under Section 7.1(f)(i)(1) of the Participation Agreement; and

(iv) in the case of any other Event of Default, the Lessee shall be obligated to the full extent of its payment obligations under the Operative Documents (other than the Other Lease Documents);

provided that any recourse to the Lessee shall be reduced by the amount of any Construction Costs, Carrying Costs, Fees and Transaction Costs that the Lessee has incurred and paid out of pocket prior to such Event of Default but has not yet been reimbursed therefor through an Advance.

For purposes of calculating the Construction Recourse Amount, (x) the Maximum Remarketing Obligation (Improvements) shall be determined based on the Advances of Equity Investment attributable to the Eligible Costs to construct the New Improvements (Fremont 3E), and (y) the Maximum Remarketing Obligation (Land) shall be determined based on the Advances of Equity Investment for the cost to acquire the land related to Site Fremont 3E.

(b) Concurrently with the payment of the Construction Recourse Amount and other amounts then owing, the Lessee shall, if requested by the Lessor, relinquish possession of the Leased Property, in the condition required by this Lease, subject only to Permitted Liens and, if the Lessor requests, convey by deed all of the Lessee’s right, title and interest, if any, in and to the Leased Property or any part thereof to the Lessor or a party designated by the Lessor, subject only to Permitted Liens described in clauses (a) or (b) of the definition thereof. The foregoing limitation on recourse to the Lessee will not apply on or after the Base Term Commencement Date. Notwithstanding the foregoing limitation on recourse to other assets of the Lessee, (1) the

 

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Lessor shall have the right to proceed against the Leased Property and to exercise any and all rights and remedies under the Security Documents and to sell or lease the Leased Property (or any parts thereof) and to recover the remaining outstanding Lease Balance and all other amounts due and owing hereunder from the proceeds of any sale, lease or other disposition thereof, and (2) subject to Section 7.1(f) of the Participation Agreement, each Indemnitee shall have the right to seek indemnification from the Lessee for any Claim pursuant to the indemnity sections of the Participation Agreement.

ARTICLE XIX

RIGHT TO CURE

If any Event of Default other than those described in paragraphs (h) and (i) of Article XVII shall be continuing and in the Lessor’s reasonably exercised judgment the Lessee is not acting diligently and appropriately to cure such Event of Default, the Lessor may, but shall not be obligated to, on five (5) Business Days’ prior notice to the Lessee (except in the event of an emergency, in which case only one (1) Business Day’s prior notice shall be required), cure such Event of Default and the Lessor shall not thereby be deemed to have waived any default caused by such failure to cure, and the amount of such payment and the amount of the expenses of the Lessor (including reasonable attorneys’ fees and expenses) incurred in connection with such cure, together with interest thereon at the Overdue Rate, shall be deemed Supplemental Rent, payable by the Lessee to the Lessor upon demand.

ARTICLE XX

EARLY TERMINATION OPTION; OBLIGATION TO PURCHASE; MID-TERM REMARKETING OPTION

SECTION 20.1. Early Termination Option.

Without limitation of the Lessee’s purchase obligation pursuant to Section 20.2, the Lessee may, at its option, (A) on any Business Day during the Construction Period, or (B) on any Business Day following the Base Term Commencement Date but prior to the Lessee’s election to exercise the Return Option, purchase all, but not less than all, of the Leased Property (the “ Early Termination Option ”) at a price equal to the Break Even Price. In order to exercise its option to purchase the Leased Property pursuant to this Section 20.1, the Lessee shall give the Lessor not less than thirty (30) days’ prior written notice of such election which election, in each case, shall be irrevocable when made. Notwithstanding anything herein to the contrary, the Lessee shall not be permitted to exercise the Early Termination Option following the occurrence and during the continuance of an Event of Default unless it shall (i) elect the Early Termination Option on or before ten (10) Business Days following such Event of Default, and (ii) consummate the purchase of the Leased Property by Lessee (or its designee) before twenty (20) Business Days following such Event of Default. Upon receipt of the Break Even Price, the Leased Property shall be transferred to the Lessee (or its designee) pursuant to Section 23.11.

SECTION 20.2. Required Purchase.

So long as the Lessor has not exercised any other remedy inconsistent therewith, the Lessee shall be obligated to purchase the Leased Property for the Break Even Price automatically

 

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and without notice upon the occurrence of any Event of Default described in clauses (h) or (i) of Article XVII and upon receipt of the Break Even Price the Leased Property shall be transferred to the Lessee (or its designee) pursuant to Section 23.11.

SECTION 20.3. Mid-term Remarketing Option.

At any time during the Lease Term other than after the occurrence and during the continuance of an Event of Default, Lessee shall have the option (the “ Remarketing Option ”) to designate a third party purchaser and to cause the Lessor to sell the Leased Property to such purchaser on the date designated for the sale thereof by Lessee (the “ Remarketing Sale Date ”) provided, that the Lessor shall have received the Remarketing Sale Proceeds of such sale together with (in the case where such Remarketing Sale Proceeds do not equal or exceed the Break Even Price) additional cash amounts paid to the Lessor by the Lessee, as Supplemental Rent, in an amount equal to the excess of the Break Even Price over such Remarketing Sale Proceeds. If the Remarketing Sale Proceeds exceed the Break Even Price as of such Remarketing Sale Date, the Lessor shall pay over to the Lessee the portion of the Remarketing Sale Proceeds in excess thereof after satisfaction of all amounts due hereunder or under the other Operative Documents. Subject to, and concurrent with, the receipt by the Lessor of funds equal to or in excess of the Break Even Price, on the Remarketing Sale Date, the Lessor shall convey to the Lessee or its designee the Leased Property in accordance with Section 23.11. The Lessee shall be responsible for the payment of all fees and expenses of the Lessor (including reasonable attorneys’ fees and expenses) incurred in connection with any exercise or purported exercise of the Remarketing Option.

ARTICLE XXI

END OF TERM OPTIONS

SECTION 21.1. End of Term Options

At least one hundred and eighty (180) days prior to the Return Date, but not more than two hundred seventy (270) days, the Lessee shall, by delivery of an irrevocable written notice to the Lessor, exercise one of the following options:

(a) Purchase for cash for the Break Even Price all, but not less than all, of the Leased Property then subject to this Lease on the last day of the Lease Term (the “ Purchase Option ”) and if the Lessee shall have elected the Purchase Option, upon the payment to the Lessor of the Break Even Price, the Leased Property shall be transferred to the Lessee (or its designee) pursuant to Section 23.11; or

(b) Provided no Default or Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Event of Default with respect to which the Lessor has not yet commenced exercising remedies) shall have occurred and be continuing, return the Leased Property to the Lessor at the end of the scheduled expiration date of the Lease Term (the “ Return Option ”). The Return Option shall be conditioned upon and subject to the fulfillment by the Lessee of each of the terms and conditions set forth in Article XXII and, thereafter, the Lessee shall have no further obligations to pay Basic Rent or the remaining Lease Balance. Lessee shall not enter into any additional subleases or renew any

 

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subleases with respect to the Leased Property following the Lessee’s election of the Return Option. Following the Lessee’s election of the Return Option, the Lessee shall not remove any Alterations.

SECTION 21.2. Election of Options.

In the event Lessor shall not have received the foregoing notice from Lessee prior to the date that is one hundred and eighty (180) days prior to the last day of the Return Date, by delivery of written notice via nationally recognized overnight courier to the Lessee, Lessor may notify the Lessee of the expiration of the election notice period set forth in the preceding section. If, in any event, the Lessee fails to make a timely election under Section 21.1 hereof, the Lessee shall be deemed to have elected the Return Option. Lessee may not elect the Return Option if there exists on the date the election is made a Default, an Event of Default or an Event of Loss. In the event a Default or an Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) or an Event of Loss shall have occurred after the election by the Lessee, or deemed election by the Lessee, of the Return Option, then notwithstanding any such election or deemed election, Lessee shall be deemed to have elected the Purchase Option with respect to the Leased Property. In the event a Default or Event of Default that is solely and exclusively based on one or more 97-1 Events of Default shall have occurred after the election by Lessee of the Return Option, (i) Lessee may continue with its Return Option so long as the Lessor has not commenced exercising remedies with respect thereto, and (ii) Lessee shall not be permitted to continue with its Return Option and shall be subject to Section 18 hereof including the limitations set forth in Section 18.1(b) hereof, in the event the Lessor shall have commenced remedies with respect thereto.

ARTICLE XXII

RETURN OPTION

SECTION 22.1. Return Option Procedures.

(a) If the Lessee elects or is deemed to have elected the Return Option and the Lessor elects to require the Lessee to offer to sell the Leased Property, at the option of the Lessor, (x) the purchaser shall be reasonably entitled (whether on or before the Return Date or thereafter) to be granted a temporary easement or other right of access from the Lessee on the Leased Property to enable the purchaser to have access over paths and streets necessary to remarket the Leased Property (the “ Easement ”) (which obligation of the Lessee to grant such Easement hereunder shall survive the termination of this Lease), or (y) the Lessee shall use commercially reasonable efforts as non-exclusive agent for the Lessor to obtain the highest all cash purchase price for the Leased Property. In the event the Lessee receives any bid, the Lessee shall within five (5) Business Days after receipt thereof and, at least five (5) Business Days prior to the Return Date, certify to the Lessor in writing the amount and terms of such bid and the name and address of the party (who shall not be the Lessee or any Subsidiary of the Lessee or, unless the sum of (i) the Sale Proceeds pursuant to a proposed bid which the Lessee desires to accept plus (ii) the Recourse Deficiency Amount plus (iii) any amount payable pursuant to Section 7.5 of the Participation Agreement is not less than the Break Even Price, any Person with whom the Lessee has an understanding or arrangement regarding their future use, possession or ownership of the

 

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Leased Property or the Lessor’s other rights, title and interest in and to the Leased Property, but who may be the Lessor, any Affiliate thereof, or any Person contacted by the Lessor (other than any Person otherwise forbidden from being such purchaser pursuant to the foregoing parenthetical)) submitting such bid, and the Lessee and any sublessee shall confirm in writing both to the Lessor and to the bidder that it will vacate the Leased Property and take such reasonable steps as may be required to grant to the bidder the Easement on or before the Return Date.

(b) If the sum of (i) the Sales Proceeds pursuant to a proposed bid which the Lessee desires to accept plus (ii) the Recourse Deficiency Amount plus (iii) any amount payable pursuant to Section 7.5 of the Participation Agreement is not less than the Break Even Price, then the Lessee shall determine and accept the winning bid; otherwise, Lessor shall have the right, in its sole and absolute discretion to accept or reject any bid so presented by the Lessee. As non-exclusive selling agent, Lessee’s expenses and the out-of-pocket expenses incurred by the Lessor in connection with any such bidding and sale process pursuant to this Section 22.1 as well as all costs and expenses incurred by the Lessor or a buyer or potential buyer of the Leased Property to place the Leased Property in the condition required by Section 9.1, shall be deducted from the Sale Proceeds. On the Return Date, so long as no Event of Default or Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) shall have occurred and be continuing: (w) the Lessee shall transfer all of the Lessee’s right, title and interest in the Leased Property if any, that the Lessor does not yet hold pursuant to the terms of the Operative Documents to the bidder, if any, which shall have submitted the bid (if any) accepted pursuant to this Section 22.1(b), in the same manner and in the same condition and otherwise in accordance with all of the terms of this Lease, warranted free and clear of all Liens other than Permitted Liens described in clauses (a) and (b) of the definition thereof; (x) subject to the prior or current payment by the Lessee of all amounts due under clause (y) of this sentence, the Lessor shall comply with any conditions to transfer set forth in Section 22.2 and the transfer provisions of Section 22.1(b) in order to transfer its interests in the Leased Property for cash to such bidder; (y) the Lessee, as non-exclusive selling agent, shall simultaneously pay to the Lessor all of the amounts required pursuant to Section 22.3; and (z) after payment in full of all amounts owing to the Lessor hereunder and under the terms of the bid, this Lease shall terminate or, at Lessee’s option, shall be assigned by Lessor without recourse or warranty by Lessor to a designee concurrent with the payment of such designated amount. The Lessor shall not have any responsibility for procuring any purchaser; provided, however, that the Lessor and its designees may engage in activities to market and sell the Leased Property and may terminate Lessee as its non-exclusive selling agent upon one (1) Business Day’s notice. Any such activities reasonably undertaken by the Lessor pursuant to this Section 22.1(b) shall be at the Lessor’s sole cost and expense (which shall be deducted from the Sale Proceeds in accordance with the foregoing), shall not reduce the Lessee’s obligations, as non-exclusive selling agent, under this Section 22.1(b) or during the Extended Remarketing Period) to use commercially reasonable efforts, as non-exclusive selling agent, to sell the Leased Property in accordance with the requirements of this Section 22.1(b) and Section 22.2. If the Sale Proceeds exceed the Break Even Price as of the Return Date, the Lessee shall retain or be entitled to receive the portion of the Sale Proceeds in excess thereof. If the Sale Proceeds are less than the aggregate outstanding Break Even Price, the Lessee shall pay or shall cause to be paid to the Lessor, as Supplemental Rent, on the date of

 

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such sale (but not later than the Return Date), in addition to the Sale Proceeds, an additional amount as set forth in the last sentence of Section 22.3(a) hereof.

SECTION 22.2. Sale.

Lessee, as non-exclusive selling agent, shall, on the Return Date, at the Lessee’s own expense (without right of reimbursement therefor out of gross sale proceeds except as provided in the third sentence of Section 22.1(b) above), negotiate the terms of any applicable sale, such that the Leased Property transferred to the purchaser in accordance with Section 22.1 hereof is (i) free and clear of all Liens, other than Permitted Liens described in clauses (a) or (b) of the definition thereof and (ii) (A) in the condition required by the terms of this Lease, (B) capable of operating in accordance with the purposes set forth in the Appraisal, (C) without any lessees claiming relief or exemption from judicial execution, and (D) in compliance with all Applicable Laws. Lessee, as non-exclusive selling agent, shall obtain all necessary governmental consents and approvals and make all governmental filings required by the Lessee or the Lessor in connection with any sale and grant of rights. Lessee, as non-exclusive selling agent, shall cooperate with the purchaser of the Leased Property in order to facilitate the transfers of the use, ownership and operation of the Leased Property by such purchaser after the date of the sale or transfer, including providing all books, reports and records regarding the maintenance, repair and ownership of the Leased Property and granting or assigning all licenses necessary for the operation of the Leased Property and cooperating in seeking and obtaining all necessary Governmental Actions. Lessee shall also, on the Return Date, vacate and cause any sublessee to vacate the Leased Property. As a further condition to the Lessee’s rights hereunder, the Lessee shall pay the total cost for the completion of all Alterations commenced after the Base Term Commencement Date and prior to the Return Date, and, subject to the Lessee’s right to use applicable insurance proceeds as set forth in Article XIII hereof, for the repair and rebuilding of the affected portions of the Leased Property suffering a Casualty after the Base Term Commencement Date. Such Alterations and all such repairs and rebuilding shall be completed prior to the Return Date. Unless the Lessee shall have exercised or been deemed to have exercised its Purchase Option or the Leased Property is to be sold to an independent purchaser, prior to the Return Date, the Lessee shall furnish to the Lessor and the independent purchaser hereunder a reasonably current preliminary environmental survey for the Leased Property dated no earlier than forty-five (45) days prior to the Return Date, from an environmental consultant satisfactory in the reasonable discretion of Lessor certifying that there exists no environmental contamination with respect to the Leased Property which would adversely affect the marketability, fair market value or useful life, as determined by the Appraisal, of the Leased Property or have an adverse effect on the Lessor and addressed to Lessor in form and substance satisfactory in the reasonable discretion of Lessor. The obligations of the Lessee under this Section 22.2 shall survive the expiration or termination of this Lease. Unless the Lessee shall have exercised or been deemed to have exercised its Purchase Option or the Leased Property is to be sold to an independent purchaser, the Lessor shall be entitled to perform such investigation, including obtaining reports of engineers and other experts as to the condition and state of repair and maintenance of the Improvements and the Site required by this Section 22.2 and as to the compliance of the Leased Property with Applicable Laws, including Environmental Laws, as it deems appropriate. Lessee, at its sole cost and expense (without right of reimbursement therefor out of gross sale proceeds but, subject to the Lessee’s right to use applicable insurance and condemnation proceeds as set forth in Article XIII hereof), shall cause the repair or other

 

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remediation of any discrepancies between the actual condition of the Improvements and the Site and the condition required under this Lease, such repair or remediation to be completed not later than the Return Date.

SECTION 22.3. Application of Sale Proceeds and Recourse Payments.

(a) On the Return Date, in connection with the Lessee’s exercise of the Return Option, the Lessee shall pay to the Lessor all Rent then due together with all other amounts due and payable by the Lessee to the Lessor or any Indemnitee. The Lessee also shall cause to be paid to the Lessor, from the aggregate Sale Proceeds (after application of gross sale proceeds to payment of any deed or transfer tax thereon not paid by the purchaser thereof and payment or reimbursement to the Lessee and/or the Lessor for any costs or expenses incurred by the Lessee and/or the Lessor in connection with the actions required under Sections 22.1 and 22.2, excluding any provision thereof which expressly specifies that the Lessee’s costs shall not be reimbursable out of gross sale proceeds), the aggregate outstanding Break Even Price as of the Return Date (as determined after the payment of all Rent due on such date and application of all other payments hereunder by Lessee in accordance with Section 22.3(c) hereof). If the Sale Proceeds exceed the Break Even Price as of the Return Date, the Lessee shall retain or be entitled to receive the portion of the Sale Proceeds in excess thereof. If the Sale Proceeds are less than the aggregate outstanding Break Even Price, the Lessee shall pay or shall cause to be paid to the Lessor, as Supplemental Rent, on the Return Date, in addition to the Sale Proceeds, an additional amount equal to the lesser of (x) the amount that the Break Even Price exceeds the Sale Proceeds or, (y) provided no Default or Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) has occurred and is continuing, the Recourse Deficiency Amount.

(b) The obligation of the Lessee to pay the amounts determined pursuant to Sections 22.3(a) and 22.4 shall be recourse obligations of the Lessee, and such payments by the Lessee shall not limit any other obligation of the Lessee under the Operative Documents, including pursuant to Article VII of the Participation Agreement.

(c) If on any date the Lessor shall receive any amounts that constitute payment of the Recourse Deficiency Amount and any Sale Proceeds following Lessee’s election to return or deemed election to have returned the Leased Property at the Return Date, the Lessor shall apply such amounts in the following order of priority:

first , to the Lessor, so much of such amount as is required to reimburse the Lessor for any fees, costs, expenses, Taxes or other loss incurred by it (to the extent not previously reimbursed);

second , to the Lessor, so much of such amounts as are required to pay all expenses or fees incurred by the Lessor in connection therewith including Break Funding Amounts, if any;

third , to the Lessee, an amount equal to the lesser of the Force Majeure Losses and the amount paid by the Lessee pursuant to the last sentence of Section 22.3(a) above

 

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fourth , to the Lessor, so much of such amount as is required to pay all accrued Yield thereon;

fifth , to the Lessor, so much of such amounts as are required to pay in full the outstanding amount of the Lease Balance;

sixth , to the Lessor, so much of such amounts as are required to pay all outstanding obligations of Lessee pursuant to the Operative Documents including all indemnities due and payable; and

seventh , to Lessee, the balance of such amount, if any.

SECTION 22.4. Failure to Sell Leased Property.

(a) If the Leased Property shall not have been sold on or prior to the Return Date, in accordance with and subject to the provisions of this Article XXII, then the Lessee and the Lessor hereby agree as follows:

(i) the Lessee shall pay or shall cause to be paid to the Lessor, as Supplemental Rent, on the Return Date, in addition to the Sale Proceeds, an amount equal to the Recourse Deficiency Amount plus all other Rent then due under this Lease and the other Operative Documents or, in the event a Default or Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) shall have occurred and be continuing on such date, the Break Even Price and, in the case where the Break Even Price is paid, the Lessor shall convey to the Lessee or its designee the Leased Property in accordance with Section 23.11; and

(ii) at the option of the Lessor, if the Lessee has not paid the Break Even Price as set forth in Section 22.4(a)(i) above, the Lessee shall be required to continue using commercially reasonable efforts as non-exclusive agent for the Lessor to sell the Leased Property in accordance with Sections 22.1 and 22.2 for the period (the “ Extended Remarketing Period ”) commencing on the Return Date, and ending on the earliest of (w) the date occurring twenty-fourth (24 th ) months following the Return Date, (x) the sale of the Leased Property in accordance with the provisions of Sections 22.1 and 22.2 or such earlier date as the Lessor has received payment in full of the Break Even Amount, (y) the delivery of a written notice from the Lessor to the Lessee at any time terminating this Lease, which notice shall indicate that such termination is being made pursuant to this Section 22.4(a)(ii) and the date such termination shall be effective, and (z) the delivery of a written notice from the Lessee to the Lessor pursuant to which the Lessee notifies the Lessor of its election to terminate the Extended Remarketing Period. The notice given by the Lessee pursuant to Section 22.4(a)(ii)(z) shall indicate that it is being made pursuant to Section 22.4(a)(ii)(z) and shall set forth the date of termination of the Extended Remarketing Period; provided, however, in no event shall such effective date occur prior to the twenty-fourth (24 th ) month following the Return Date. On the last day of the Extended Remarketing Period, if the Leased Property has not been sold during the Extended Remarketing Period in accordance with Section 22.2, the Lessee shall also

 

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make the payments required under Section 22.4(a), to the extent not already paid under such Section. Nothing in this Section 22.4(a)(ii) shall adversely affect any other rights the Lessor may have to terminate this Lease pursuant to any other Section of this Lease or the Lessor’s right to pursue any remedy hereunder as a result of an Event of Default arising as a result of the Lessee’s failure to comply with the requirements set forth herein including pursuant to Article XVII or the Lessee’s obligation to pay amounts arising under Article VII of the Participation Agreement.

(b) Following the expiration of the Extended Remarketing Period (or, if not so extended by Lessor, following the Return Date) and the absence of any sale of the Leased Property, the Lessor and Lessee will use commercially reasonable efforts to agree upon the Fair Market Value of the Leased Property. If the Lessor and Lessee are unable to agree upon the Fair Market Value of the Leased Property, Lessor shall order a valuation of the Fair Market Value of the Leased Property. Promptly after receipt of such valuation which establishes the Fair Market Value of Leased Property, Lessor shall pay to Lessee an amount equal to the lesser of (A) the Recourse Deficiency Amount paid by the Lessee in accordance with the Section 22.4(a)(i) and (B) the amount by which the Fair Market Value of the Leased Property exceeds the remaining Break Even Price less any Force Majeure Losses (the lower of (A) and (B) being the “ Expiration True-Up ”).

(c) The Lessor may sell or lease the Leased Property and the Lessor’s other interest in and to the Leased Property to any third party at such reasonable times and for such amounts as the Lessor deems commercially reasonable and appropriate in order to maximize the Lessor’s opportunity to recover the Lease Balance. If the Lessee returns the Leased Property to the Lessor in accordance with this Section 22.4 and, following the expiration of the Extended Remarketing Period, the Lessor subsequently sells the Leased Property for cash Sale Proceeds, Sale Proceeds shall be applied by the Lessor in the following order of priority:

(i) first , to the Lessor, Sale Proceeds shall be applied to any fees, costs, expenses, Taxes or other loss incurred by it (to the extent not previously reimbursed);

(ii) second , to the Lessor, Sale Proceeds shall be applied to the Lease Balance until the Lease Balance (excluding Force Majeure Losses, if any) is paid in full ( provided that , all costs and expenses arising from or related to the Leased Property which accrue after the later of the Return Date and the date the Lessee ceases to occupy the Leased Property shall be excluded from the Lease Balance for purposes of this Section 22.4(c)(ii));

(iii) third , to the Lessee, Sale Proceeds shall be applied to the Recourse Deficiency Amount ( less the Expiration True-Up), if any, to the extent such amounts were paid by the Lessor to the Lessee in accordance with Section 22.4(b);

(iv) fourth , to the Lessor, Sale Proceeds shall be applied to Force Majeure Losses and, to the extent not previously paid to the Lessor pursuant to clause (i) or clause (ii) above, to any other amounts payable to the Lessor pursuant to any expense reimbursement or indemnification by the Lessee pursuant to the provisions of the Operative Documents;

 

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(v) fifth , to the Lessor, Sale Proceeds shall be applied to any costs or expenses excluded from the Lease Balance as a result of the proviso in Section 22.4(c)(ii) above;

(vi) sixth , to the Lessor, Sale Proceeds shall be applied to all other amounts, if any, payable by the Lessee to the Lessor under the Operative Documents, to the extent not previously paid to the Lessor pursuant to clauses (i), (ii), (iv) or (v) above; and

(vii) seventh , to the Lessee, the balance, if any, of any Sale Proceeds shall be distributed to, or as directed by, the Lessee.

(d) The Lessor’s appointment of the Lessee as the Lessor’s non-exclusive agent to use commercially reasonable efforts to obtain the highest all-cash price for the purchase of the Leased Property and the Lessor’s interest in the Leased Property shall not restrict the Lessor’s right to market or lease the Leased Property and the Lessor’s interest in the Leased Property or to retain one or more sales agents or brokers (with the costs and expenses thereof being paid out of the Sale Proceeds, as provided in Sections 22.1(a) and 22.3(a) hereof).

(e) the Lessor reserves all rights under this Lease and the other Operative Documents arising out of the Lessee’s breach of any provisions of this Lease (including this Article XXII), whether occurring prior to, on or after the Return Date, including the Lessee’s breach of any of its obligations under this Article XXII, including the right to sue the Lessee for damages.

(f) To the greatest extent permitted by Applicable Law, the Lessee hereby unconditionally and irrevocably waives, and releases the Lessor from, any right to require the Lessor at any time prior to the Return Date or the expiration of the Extended Remarketing Period, as applicable, to market the Leased Property and the Lessor’s other interest in and to the Leased Property at all or for any minimum purchase price or on any particular terms and conditions, the Lessee hereby agrees that if the Lessee shall elect or shall be deemed to have elected the Return Option, its ability to sell the Leased Property and the Lessor’s other interest in and to the Leased Property on or prior to the Return Date, and to cause any Person to submit a bid to the Lessor pursuant to Section 22.1 shall constitute full and complete protection of the Lessee’s interest hereunder.

(g) During the period following Lessee’s exercise of the Return Option, the obligation of Lessee to pay Rent with respect to the Leased Property (including the installment of Rent due on the Return Date) shall continue undiminished; provided that such amounts subsequent to the Return Date (assuming the Lessee has returned the property to the Lessor) shall accrue and be payable out of the Sale Proceeds of any sale in accordance with Section 22.4(c)(v).

SECTION 22.5. Surrender and Return.

(a) Upon the expiration or earlier termination of the Lease Term, and provided that Lessee, if so entitled, has not exercised its option to purchase the Leased Property, Lessee shall peaceably leave and surrender and return the Leased Property to Lessor in the same condition in which the Leased Property existed on the Closing Date and such subsequent date on which any New Improvements or Alterations that constitute part of the Improvements were constructed, except as completed, repaired, rebuilt, restored, altered or added to as required by or permitted

 

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by any provision of this Lease (ordinary wear and tear excepted). Lessee shall remove from the Leased Property on or prior to such expiration or earlier termination all property situated thereon which is not the property of Lessor and the Leased Property shall be broom clean and Lessee shall repair any damage caused by such removal. Property not so removed shall become the property of Lessor and Lessor may cause such property to be removed from the Leased Property and disposed of, and Lessee shall pay (without right of reimbursement out of gross sale proceeds) the reasonable cost of any such removal and disposition and of repairing any damage caused by such removal.

(b) Except for surrender upon the expiration or earlier termination of the Lease Term hereof, no surrender to Lessor of this Lease or of the Leased Property shall be valid or effective unless agreed to and accepted in writing by Lessor.

(c) Without limiting the generality of the foregoing, upon the surrender and return of the Leased Property to Lessor pursuant to this Section 22.5, (i) the Leased Property shall be (w) capable of being immediately utilized by a third-party purchaser or third-party lessee without further inspection, repair, replacement, alterations or improvements, licenses, permits, or approvals, except for any of the foregoing required solely by virtue of the change in ownership (other than to Lessor), use or occupancy of the Leased Property, (x) in compliance with all Applicable Laws including any of the foregoing required by virtue of a change in ownership, use or occupancy of the Leased Property other than to or by Lessee, (y) subject to any Shared Use Agreement, Appurtenant Rights and Restrictions or other cross easement agreement as may be necessary to comply with Applicable Laws, to make any such property marketable and to increase the aggregate value of the Leased Property and the other Sites, and (z) free and clear of any Lien and (ii) the New Improvements have been Completed. Until the Leased Property has been surrendered and returned to Lessor in accordance with the provisions of this Section 22.5, Lessee shall continue to pay Lessor all Rent due hereunder.

(d) Lessee acknowledges and agrees that a breach of any of the provisions of this Section 22.5 may result in damages to Lessor that are difficult or impossible to ascertain and that may not be compensable at law. Accordingly, upon application to any court of equity having jurisdiction over the Leased Property or the Lessee, Lessor shall be entitled to a decree against Lessee requiring specific performance of the covenants of Lessee set forth in this Section 22.5.

(e) Upon the request of the Lessor, Lessee shall continue to maintain its insurance policies for the Leased Property, to the extent permitted by such policies, provided that Lessor pays or reimburses Lessee for the pro rata cost thereof.

ARTICLE XXIII

MISCELLANEOUS

SECTION 23.1. Binding Effect; Successors and Assigns; Survival.

The terms and provisions of this Lease, and the respective rights and obligations hereunder of the Lessor and the Lessee shall be binding upon them and their respective successors, legal representatives and assigns (including, in the case of the Lessor, any Person to whom the Lessor may transfer the Leased Property or any interest therein in accordance with the

 

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provisions of the Operative Documents), and inure to their benefit and the benefit of their respective permitted successors, legal representatives and assigns (including, in the case of the Lessor, any Person to whom the Lessor may transfer the Leased Property or any interest therein in accordance with the provisions of the Operative Documents).

SECTION 23.2. Severability.

Any provision of this Lease that shall be prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction, and the Lessee shall remain liable to perform its obligations hereunder except to the extent of such unenforceability. To the extent permitted by Applicable Laws, the Lessee hereby waives any provision of law that renders any provision hereof prohibited or unenforceable in any respect.

SECTION 23.3. Notices.

Unless otherwise specified herein, all notices, requests, demands or other communications to or upon the respective parties hereto shall be in writing and shall be delivered and shall be deemed to have been given in accordance with Section 8.3 of the Participation Agreement.

SECTION 23.4. Amendment; Complete Agreements.

Neither this Lease or any other Operative Document nor any terms hereof or thereof may be amended, supplemented or modified except in accordance with the provisions of the Participation Agreement. This Lease, together with the other Operative Documents, is intended by the parties as a final expression of their agreement and as a complete and exclusive statement of the terms thereof, all negotiations, considerations and representations between the parties having been incorporated herein and therein. No course of prior dealings between the parties or their officers, employees, agents or Affiliates shall be relevant or admissible to supplement, explain, or vary any of the terms of this Lease or any other Operative Document. Acceptance of, or acquiescence in, a course of performance rendered under this or any prior agreement between the parties or their Affiliates shall not be relevant or admissible to determine the meaning of any of the terms of this Lease or any other Operative Document. No representations, undertakings, or agreements have been made or relied upon in the making of this Lease other than those specifically set forth in the Operative Documents.

SECTION 23.5. Headings.

The Table of Contents and headings of the various Articles and Sections of this Lease are for convenience of reference only and shall not modify, define or limit any of the terms or provisions hereof.

 

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SECTION 23.6. Original Executed Counterpart.

The single executed original of this Lease marked as Counterpart No. 1 shall be the “ original executed counterpart ” of this Lease. To the extent that this Lease constitutes chattel paper, as such term is defined in the Uniform Commercial Code as in effect in any applicable jurisdiction, no security interest in this Lease may be created through the transfer or possession of any counterpart other than the “ original executed counterpart .”

SECTION 23.7. Governing Law.

This Lease has been delivered in, and shall in all respects be governed by and construed in accordance with the laws of, the State of New York, without regard to conflicts of laws principles (except Section 5-1401 of the New York General Obligations Law), including all matters of construction, validity and performance, except as to matters relating to the perfection of the security interests hereunder and the exercise of rights and remedies with respect thereto, which shall be governed by and construed in accordance with the laws of the State of California.

SECTION 23.8. No Joint Venture.

Any intention to create a joint venture or partnership relation hereunder or pursuant to any other Operative Document between the Lessor and the Lessee is hereby expressly disclaimed.

SECTION 23.9. No Accord and Satisfaction.

The acceptance by the Lessor of any sums from the Lessee (whether as Basic Rent or otherwise) in amounts which are less than the amounts due and payable by the Lessee hereunder is not intended, nor shall be construed, to constitute an accord and satisfaction of any dispute between the Lessor and the Lessee regarding sums due and payable by the Lessee hereunder, unless the Lessor specifically deems it as such in writing.

SECTION 23.10. Survival.

The termination of this Lease pursuant to Section 18.1 shall in no event relieve the Lessee of its liabilities and obligations hereunder which accrued prior to such termination, all of which shall survive any such termination. The extension of any applicable statute of limitations by the Lessee, the Lessor or any other Indemnitee shall not affect such survival.

SECTION 23.11. Transfer of Leased Property.

Except as may be applicable under Article XXII, any transfer of the Leased Property pursuant to this Lease shall be at the Lessee’s expense. Upon receipt by the Lessor of payment in full of the Break Even Price pursuant to the applicable provision of this Lease, the Leased Property shall be transferred to the Lessee or any designee it may identify.

Any transfer of the Lessor’s interest in and to the Leased Property pursuant to this Lease shall be transferred on an “as is, where is, with all faults” basis, without covenants or warranties of title and without recourse, representation or warranty of any kind, other than with respect to

 

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the Lessor, the absence of Lessor Liens, and together with the due assumption by the Lessee (or its designee), of, and due release of the Lessor from, all obligations relating to the Leased Property. In connection with any transfer to an independent third party, the Lessee shall, or shall ensure that its designee shall, execute and deliver such documents, certificates and estoppels as may be required to facilitate the transfer of the Leased Property. Any provision in this Lease or other Operative Document to the contrary notwithstanding, no transfer of the Leased Property to the Lessee or to a third party buyer pursuant to the Return Option shall be made until the Lessor has received all Rent and other amounts then due and owing by the Lessee hereunder and under the other Operative Documents. At or subsequent to the transfer or return of all or any of the Leased Property to a third party buyer pursuant to the Return Option, the Lessee will provide the Lessor with such lien and title searches as the Lessor may reasonably request to demonstrate to the Lessor’s satisfaction that the Leased Property is subject to no liens other than Permitted Liens as described in clauses (a) or (b) of the definition thereof. Notwithstanding anything contained herein or in the other Operative Documents to the contrary, any obligation of the Lessor to transfer any assets to the Lessee shall be satisfied by a transfer of such assets to any designee selected by it.

SECTION 23.12. Enforcement of Certain Warranties.

Unless an Event of Default shall have occurred and be continuing, the Lessor authorizes the Lessee (directly or through agents), without assuming any responsibility for the existence of such warranty or the validity of the authorization granted hereunder at the Lessee’s expense, to assert, during the Lease Term, all of the Lessor’s rights (if any) under any applicable warranty and any other claim that the Lessee or the Lessor may have under the warranties provided in connection with the Improvements and the Lessor agrees to cooperate, at the Lessee’s expense, with the Lessee and its agents in asserting such rights. Any amount recovered by the Lessee under any such warranties shall be retained by or paid over to the Lessee, subject to Section 23.13.

SECTION 23.13. Security Interest in Funds.

As long as a Material Default or Event of Default shall have occurred and be continuing, any amount that would otherwise be payable to the Lessee under the Operative Documents shall be paid to or retained by the Lessor (including amounts to be paid to the Lessee pursuant to Article XIII or Section 23.12) as security for the performance by the Lessee in full of its obligations under this Lease and the other Operative Documents and, provided an Event of Default exists, it may be applied to the obligations of the Lessee hereunder and under the other Operative Documents and distributed pursuant to Section 18.2. At such time as no Material Default or Event of Default shall be continuing, such amounts, net of any amounts previously applied to the Lessee’s obligations hereunder or under any other Operative Documents, shall be paid to the Lessee. Any such amounts which are held pending payment to the Lessee or application hereunder shall be invested by the Lessor as directed from time to time in writing by the Lessee, and at the expense and risk of the Lessee, in Permitted Investments. Any gain (including interest received) realized as the result of any such investment (net of any fees, commissions and other expenses, if any, incurred in connection with such investment) shall be applied from time to time in the same manner as the principal invested. Lessor shall not be liable for any losses on such investments or for any failure to make any investment,

 

43


SECTION 23.14. Submission to Jurisdiction.

EACH OF THE LESSOR AND THE LESSEE IRREVOCABLY AND UNCONDITIONALLY:

(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS LEASE, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, AND APPELLATE COURTS FROM ANY THEREOF;

(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDINGS MAY BE BROUGHT TO SUCH COURTS, AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND AGREES NOT TO PLEAD OR CLAIM THE SAME;

(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS SET FORTH ON SCHEDULE II TO THE PARTICIPATION AGREEMENT OR AT SUCH OTHER ADDRESS OF WHICH THE OTHER PARTIES HERETO SHALL HAVE BEEN NOTIFIED PURSUANT TO SECTION 8.3 OF THE PARTICIPATION AGREEMENT; AND

(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION.

SECTION 23.15. Jury Trial.

EACH OF THE LESSOR AND THE LESSEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS LEASE OR ANY OTHER OPERATIVE DOCUMENT OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS LEASE OR ANY OTHER OPERATIVE DOCUMENT AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.

SECTION 23.16. Payments.

All payments to be made by the Lessee hereunder shall be made to the Lessor in Dollars in immediately available and freely transferable funds at the place of payment, all such payments to be paid without setoff, counterclaim or reduction and without deduction for, and free from,

 

44


any and all present or future taxes, levies, imposts, duties, fees, charges, deductions, withholding or liabilities with respect thereto or any restrictions or conditions of any nature. If the Lessee is required by law to make any deduction or withholding on account of any tax or other withholding or deduction from any sum payable by the undersigned hereunder, the Lessee shall pay any such tax or other withholding or deduction and shall pay such additional amount necessary to ensure that, after making any payment, deduction or withholding, the Lessor shall receive and retain (free of any liability in respect of any payment, deduction or withholding) a net sum equal to what it would have received and so retained hereunder had no such deduction, withholding or payment been required to have been made, which payment or withholding is made subject to the limitations set forth in Sections 7.2(a)(iii) and 7.4 of the Participation Agreement, reimbursement obligations of Indemnitees set forth in Sections 7.2(a)(iii), 7.2(e) and 7.2(f) of the Participation Agreement and other rights of Lessee set forth in Sections 7.2(b)(i), 7.2(e), 7.2(f) and 7.4 of the Participation Agreement.

[Signature Pages Follow]

 

45


IN WITNESS WHEREOF, the undersigned have each caused this Lease to be duly executed and delivered by their respective representations thereunto duly authorized as of the day and year first above written.

 

BTMU CAPITAL LEASING & FINANCE, INC.,

AS L ESSOR

By:  

/s/ Michael D. Doyle

Name:   Michael D. Doyle
Title:   President

[THIS IS COUNTERPART NO.      OF      ORIGINALLY

EXECUTED COUNTERPARTS]


LAM RESEARCH CORPORATION,

AS L ESSEE

By:  

/s/ Odette Go

Name:   Odette Go
Title:   Treasurer

[THIS IS COUNTERPART NO.      OF      ORIGINALLY

EXECUTED COUNTERPARTS]


Schedule A

Recourse Deficiency Amount Percentages

 

1. Maximum Remarketing Obligation (Land): $3,900,000

 

2. Recourse Deficiency Amount for Fremont 3E (during Base Term): 86.6%


Exhibit A

Description of Site

Real Property in the City of Fremont, County of Alameda, State of California and described as follows:

PARCEL ONE:

PARCEL 2, PARCEL MAP 5001, FILED MARCH 18, 1987, IN BOOK 168 OF MAPS, AT PAGES 24 THROUGH 26, ALAMEDA COUNTY RECORDS.

EXCEPTING THEREFROM, ALL OIL, GAS AND OTHER HYDROCARBONS AND MINERALS NOW OR AT ANY TIME HEREAFTER SITUATE THEREIN AND THERE UNDER, AND ALSO THE RIGHT TO DRILL FOR, PRODUCE AND USE WATER FROM THE SAID REAL PROPERTY IN CONNECTION WITH DRILLING OR MINING OPERATIONS THEREON, AS RESERVED IN THE DEED FROM H. HERBST, M. HERBST AND H.D. HERBST TO C.J. SCHOUWEILER RECORDED APRIL 21, 1950 AS SERIES NO. AE-34804 IN BOOK 6085, PAGE 589 OF OFFICIAL RECORDS.

PARCEL TWO:

AN EASEMENT FOR PRIVATE ACCESS FOR THE BENEFIT OF PARCEL ONE, ABOVE, OVER THAT PORTION OF PARCEL 1, PARCEL MAP 5001 DESIGNATED “J.A.E.” ON SAID MAP.

 

Sch. 2-1

Exhibit 10.24

PLEDGE AGREEMENT

(Fremont 3E)

BETWEEN

LAM RESEARCH CORPORATION

(“LRC”)

AND

BTMU CAPITAL LEASING & FINANCE, INC.

(“BTMUCLF”)

December 31, 2013


TABLE OF CONTENTS

 

          Page  

1.

  

DEFINITIONS AND INTERPRETATION

     2   
   (A)   

Definitions

     2   
   (B)   

Rules of Interpretation

     11   
   (C)   

Attachments

     11   

2.

  

PLEDGE AND GRANT OF SECURITY INTEREST

     11   

3.

  

PROVISIONS CONCERNING THE DEPOSIT TAKERS

     12   
   (A)   

Deposit Taker Agreements

     12   
   (B)   

Qualification of Deposit Takers Generally

     12   
   (C)   

Substitutions for Disqualified Deposit Takers

     12   
   (D)   

Other Voluntary Substitutions of Deposit Takers

     13   
   (E)   

Delivery of Deposit Taker’s Agreements by LRC and BTMUCLF

     13   
   (F)   

Constructive Possession of Collateral

     13   
   (G)   

Attempted Setoff by Deposit Taker

     13   

4.

  

DELIVERY AND MAINTENANCE OF COLLATERAL

     14   
   (A)   

Delivery of Pre-lease Deposits by LRC

     14   
   (B)   

Delivery of Cash Collateral by LRC

     14   
   (C)   

Allocation of Cash Collateral Among Deposit Takers

     15   
   (D)   

Status of the Deposit Accounts Under the Reserve Requirement Regulations

     15   
   (E)   

Acknowledgment by LRC that Requirements of this Agreement are Commercially Reasonable

     15   

5.

  

WITHDRAWAL OF COLLATERAL

     15   
   (A)   

Withdrawal and Management of Pre-lease Collateral

     15   
   (B)   

Withdrawal of Cash Collateral Upon the Occurrence and During the Continuance of an Event of Default

     17   
   (C)   

Withdrawal and Application of Cash Collateral to Reduce or Satisfy the Secured Obligations to BTMUCLF

     17   
   (D)   

Withdrawal and Return of Cash Collateral Following Satisfaction of all Secured Obligations

     17   
   (E)   

No Other Right to Require or Make Withdrawals

     17   
   (F)   

BTMUCLF’s Covenant Not to Make Unauthorized Withdrawals

     18   

6.

  

REPRESENTATIONS AND COVENANTS OF LRC

     18   

 

-i-


TABLE OF CONTENTS

(continued)

 

          Page  
   (A)   

Representations of LRC

     18   
   (B)   

Covenants of LRC

     19   

7.

  

AUTHORIZED ACTION BY BTMUCLF

     20   

8.

  

DEFAULT AND REMEDIES

     20   
   (A)   

Remedies

     21   
   (B)   

Recovery Not Limited

     23   

9.

  

MISCELLANEOUS

     23   
   (A)   

Payments by LRC to BTMUCLF

     23   
   (B)   

Payments by BTMUCLF to LRC

     24   
   (C)   

Cumulative Rights, etc

     24   
   (D)   

Survival of Agreements

     24   
   (E)   

Other Liable Party

     24   
   (F)   

Termination

     24   

 

-ii-


PLEDGE AGREEMENT

(FREMONT 3E)

This PLEDGE AGREEMENT (Fremont 3E) (this “ Agreement ”), dated as of December 31, 2013 (the “ Effective Date ”), is made by and between BTMU CAPITAL LEASING & FINANCE, INC. (“ BTMUCLF ”), a Delaware corporation, and LAM RESEARCH CORPORATION (“ LRC ”), a Delaware corporation.

RECITALS

A. LRC, as lessee, and BTMUCLF, as lessor, are parties to that certain Amended and Restated Lease Agreement (Fremont 3E), dated of even date herewith (as amended, supplemented or otherwise modified from time to time pursuant thereto, the “Lease” ), pursuant to which the Lessee has agreed to lease from the Lessor, and the Lessor has agreed to lease to the Lessee, the Leased Property described therein.

B. LRC and BTMUCLF are also parties to that certain Participation Agreement, dated of even date herewith (as amended, supplemented or otherwise modified, the “ Participation Agreement ”) pursuant to which BTMUCLF commits to advance funds for the acquisition of Site Fremont 3E and the construction of New Improvements thereon and the Personal Property used thereon subject to the terms and conditions set forth therein.

C. Pursuant to the Construction Agency Agreement, BTMUCLF will appoint LRC as its agent to construct, and BTMUCLF will advance funds for the construction of, the New Improvements described therein. Pursuant to the Lease, BTMUCLF will lease to LRC such New Improvements and other property described in the Lease.

D. By this Agreement, BTMUCLF and LRC desire to establish the terms and conditions upon which LRC is pledging cash collateral for its obligations to BTMUCLF under the Lease, the Construction Agency Agreement and the Participation Agreement.

AGREEMENTS

 

1. DEFINITIONS AND INTERPRETATION.

(A) Definitions . As provided in the recitals above, all capitalized terms used in this Agreement which are defined in the Participation Agreement and not otherwise defined herein shall have the same meanings herein as set forth in Appendix I to the Participation Agreement. All terms used in this Agreement which are defined in the UCC and not otherwise defined herein shall have the same meanings herein as set forth therein, except where the context otherwise requires. As used in this Agreement, the following terms shall have the following respective meanings:

Account Office ” means, with respect to any Deposit Account maintained by any Deposit Taker, the office of such Deposit Taker in California or New York at which such Deposit Account is maintained as specified in the applicable Deposit Taker’s Agreement.

 

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BTMU ” means The Bank of Tokyo-Mitsubishi UFJ, Ltd.

BTMU Downgrade Event ” means BTMU or any successor of BTMU fails to maintain a debt rating of at least (i) BBB- (in the case of long term debt) by Standard and Poor’s Corporation (the “S&P Rating” ), and (ii) Baa3 (in the case of long term debt) by Moody’s Investor Service, Inc. (the “Moody Rating” ) and LRC shall elect to require that the Collateral held by BTMU to be transferred to an Eligible Deposit Taker pursuant to Section 3(C) hereof, provided that (i) such transferee shall satisfy the requirements of an Eligible Deposit Taker and (ii) LRC, Lessor and such replacement Eligible Deposit Taker have entered into a control agreement in form reasonably acceptable to all parties thereto. The parties hereto believe that it is improbable that the ratings systems used by Standard and Poor’s Corporation and by Moody’s Investor Service, Inc. will be discontinued or changed, but if such ratings systems are discontinued or changed, LRC shall be entitled to select and use a comparable ratings systems as a substitute for the S&P Rating or the Moody Rating, as the case may be, for purposes of determining the status of BTMU or such successor as an Eligible Deposit Taker.

BTMUCLF ” shall have the meaning given to that term in the introductory paragraph hereof.

Cash Collateral ” means (i) all money of LRC which LRC or the Intermediary delivers to BTMUCLF or as directed by it for deposit in the Deposit Accounts maintained by the Deposit Takers pursuant to this Agreement, and (ii) all amounts on deposit in any of the Deposit Accounts from time to time, which have not been withdrawn or applied to Secured Obligations as provided in this Agreement.

Clearing System ” means the Depository Trust Company (“DTC”) and such other clearing or safekeeping system that may from time to time be used in connection with transactions relating to or the custody of any Securities, and any depository for any of the foregoing.

Collateral ” has the meaning indicated in Paragraph 2.

Collateral Imbalance ” means on any date prior to the Base Term Commencement Date that the Value (without duplication) of Deposit Accounts maintained by the Deposit Taker for BTMUCLF or any Participant (other than Disqualified Deposit Takers) does not equal the Minimum Collateral Value in effect on such date and, to the extent that there are any Participants, such Participant’s Percentage, multiplied by the lesser of (1) the Minimum Collateral Value in effect on such date, or (2) the aggregate Value of all Collateral subject to this Agreement on such date. For purposes of determining whether a Collateral Imbalance exists, the Value of any Deposit Accounts maintained by a bank that is acting as Deposit Taker for two or more Participants will be deemed to be held for them in proportion to their respective Percentages, and the Value of any Deposit Accounts maintained by a bank as Deposit Taker for both a Participant and BTMUCLF will be deemed to be held for the Participant only to the extent necessary to prevent or mitigate a Collateral Imbalance and otherwise for BTMUCLF.

 

3


“Control Agreement” means the Initial Control Agreement and any future similar agreement that may (i) supplement, modify or replace the Initial Control Agreement as to any Pre-lease Collateral or (ii) be used by a Deposit Taker following any credit impairment as provided in the definition of Eligible Deposit Taker.

“Default” means any Event of Default and any default, event or condition which would, with the giving of any requisite notices and the passage of any requisite periods of time, constitute an Event of Default.

“Deposit Account” means a deposit account maintained by any Deposit Taker into which Cash Collateral has been or may in the future be deposited as provided in this Agreement.

“Deposit Taker” means, for BTMUCLF or any Participant, an Eligible Deposit Taker designated by it to act as the Deposit Taker for it under this Agreement. BTMUCLF has already designated BTMU as the Deposit Taker for BTMUCLF hereunder. Any Participant which is an Eligible Deposit Taker will be deemed to have designated itself to act as the Deposit Taker for it, unless some other designation is expressly set forth in this Agreement. Any Participant which is not an Eligible Deposit Taker will be expected to designate BTMU or, to the extent BTMU is not an Eligible Deposit Taker, another Person which is an Eligible Deposit Taker (as reasonably approved by LRC) prior to any delivery of Cash Collateral by LRC pursuant to this Agreement. It is also understood, however, that each of BTMUCLF and any Participants, for itself only, may from time to time designate another Eligible Deposit Taker (as reasonably approved by LRC) as provided in subparagraphs 3(C) and 3(D) below.

“Deposit Taker Prerequisites” means, with respect to any Deposit Taker: (1) the requirement that such Deposit Taker establish a Deposit Account and provide to LRC and BTMUCLF the account number and other information regarding such Deposit Account which they must have to complete and submit a Deposit Taker’s Agreement covering such Deposit Account; and (2) the requirement that such Deposit Taker accept, execute and return a Deposit Taker’s Agreement covering each Deposit Account to be maintained by such Deposit Taker. It is understood that any Deposit Taker’s refusal or failure to satisfy the Deposit Taker Prerequisites will cause it to be a Disqualified Deposit Taker.

“Deposit Taker’s Agreement” means a completed Deposit Agreement in the form attached as Exhibit A , which specifically identifies a Deposit Account in which a Deposit Taker shall hold Cash Collateral delivered to it pursuant to this Agreement.

“Disqualified Deposit Taker” means any Person that BTMUCLF or any Participant has designated as a Deposit Taker, but that has not satisfied or no longer satisfies the following requirements:

(a) With respect to each Deposit Account in which such Person holds or will hold Collateral delivered to it pursuant to this Agreement, such Person must have received from BTMUCLF and LRC an executed Deposit Taker’s Agreement which specifically identifies

 

4


such Deposit Account and which designates, at such Person’s election, an Account Office with respect to such Deposit Account in New York or California.

(b) Such Person must have executed and returned to BTMUCLF a Deposit Taker’s Agreement with respect to each such Deposit Account and must have complied with its Deposit Taker’s Agreements, and the representations set forth therein with respect to such Person must continue to be true and correct (except that such Person will not become a Disqualified Deposit Taker because of its failure to comply with its Deposit Taker’s Agreement, or because any such representation does not continue to be true and correct, if such failure is cured and all such representations are made true and correct in all material respects before the earlier of (i) thirty days after the Deposit Taker is notified thereof, and (ii) any date upon which BTMUCLF’s security interest in any Collateral maintained or held by such Deposit Taker is not a Qualified Pledge by reason of such failure to comply or such representation not being true and correct). Such Person must have complied in all material respects with the provisions in this Agreement applicable to Deposit Takers.

(c) Such Person must be an Eligible Deposit Taker.

“Eligible Deposit Taker” means:

(1) (a) BTMU or any successor of BTMU, acting through any branch, office or agency in New York or California that can lawfully maintain a Deposit Account as a Deposit Taker hereunder so long as no BTMU Downgrade Event shall occur or (b) Union Bank, N.A. or any successor of Union Bank, N.A., acting through any branch, office or agency in New York or California that can lawfully maintain a Deposit Account as a Deposit Taker hereunder so long as no Union Bank Downgrade Event shall occur;

(2) any Participant or Affiliate of a Participant that is (a) a commercial bank, organized under the laws of the United States of America or a state thereof or under the laws of another country which is doing business in the United States of America, (b) authorized to maintain deposit accounts for others through Account Offices in New York or California (as specified in its Deposit Taker’s Agreement) so long as no Participant Downgrade Event shall occur; or

(3) such Person that (a) has been designated by BTMUCLF or a Participant to act as the Deposit Taker for it under this Agreement, (b) is one of the fifty largest (measured by total assets) U.S. banks, or one of the one hundred largest (measured by total assets) banks in the world, (c) is acting through any branch, office or agency in New York or California that can lawfully maintain a Deposit Account as a Deposit Taker hereunder, and (d) has a debt ratings of at least (i) A- (in the case of long term debt) and A-1 (in the case of short term debt) or the

 

5


equivalent thereof by Standard and Poor’s Corporation (the “S&P Rating” ), and (ii) A3 (in the case of long term debt) and P-1 (in the case of short term debt) or the equivalent thereof by Moody’s Investor Service, Inc. (the “Moody Rating” ), the parties hereto believing that it is improbable that the ratings systems used by Standard and Poor’s Corporation and by Moody’s Investor Service, Inc. will be discontinued or changed, but if such ratings systems are discontinued or changed, LRC shall be entitled to select and use a comparable ratings systems as a substitute for the S&P Rating or the Moody Rating, as the case may be, for purposes of determining the status of any bank as an Eligible Deposit Taker.

If at any time a Deposit Taker fails to satisfy the requirements of this definition above, such Deposit Taker shall cease being an Eligible Deposit Taker and LRC may, at its option, require that the Collateral held by such ineligible Deposit Taker be transferred to an Eligible Deposit Taker, provided that (i) such Eligible Deposit Taker satisfies the requirements of this definition above and (ii) LRC, Lessor and such replacement Eligible Deposit Taker have entered into a control agreement in form reasonably acceptable to all parties thereto.

“Eligible Investments” with respect to Pre-Lease Collateral, shall have the meaning set forth in the Initial Control Agreement.

“Event of Default” means the occurrence of any of the following:

(a) an Event of Default as defined in the Lease;

(b) any failure by LRC to provide funds as and when required by subparagraph 4(A) or 4(B) of this Agreement or under the Deposit Taker’s Agreement, on the date due;

(c) the failure of the pledge or security interest contemplated herein in any Pre-lease Collateral or any Deposit Account or Cash Collateral to be a Qualified Pledge (regardless of the characterization of any Deposit Accounts or Cash Collateral as deposit accounts, instruments or general intangibles under the UCC); unless, within five days after LRC becomes aware of such failure, LRC both (1) notifies BTMUCLF of such failure, and (2) cures such failure;

(d) the failure of any representation herein by LRC to be true (other than a failure described in another clause of this definition of Event of Default) and LRC and LRC shall fail to cure the underlying facts causing such representation, warranty, certification or statement to be incorrect in all material respects for a period of ten (10) Business Days after the earlier of Actual Knowledge or notice thereof;

(e) the failure of any representation made by LRC in subparagraph 6(A)(1) to be true, if within fifteen days after LRC becomes aware of such failure, LRC does not (1) notify BTMUCLF of such failure, and (2) cure such failure; and

 

6


(f) the failure by LRC timely and properly to observe, keep or perform any covenant, agreement, warranty or condition herein required to be observed, kept or performed (other than a failure described in another clause of this definition of Event of Default), if diligent efforts are not being taken by LRC to cure such Default and such failure is not cured within thirty (30) days after the earlier of Actual Knowledge thereof by LRC or receipt of written notice thereof; provided, however, that if such failure is capable of cure but cannot be cured by payment of money or cannot be cured by diligent efforts within such thirty (30) day period but such diligent efforts shall be properly commenced within such thirty (30) day period and LRC is diligently pursuing, and shall continue to pursue diligently remedy of such failure, such cure period shall be extended for an additional period of time in excess of such cure period as may be necessary to cure, not to extend beyond the earlier to occur of (i) the Lease Expiration Date or (ii) one hundred and twenty (120) days after the earlier of Actual Knowledge thereof or written notice thereof having been given to LRC.

Notwithstanding the foregoing, if ever the aggregate Value of Pre-lease Collateral held by the Intermediary exceeds the Minimum Collateral Value then in effect, a failure of the pledge or security interest contemplated herein in such excess Pre-lease Collateral to be a valid, perfected, first priority pledge or security interest shall not constitute an Event of Default under this Agreement. Accordingly, to provide a cure as required to avoid an Event of Default under clauses (c) or (e) of this definition prior to the Base Term Commencement Date, LRC may deliver additional Pre-lease Collateral to the Intermediary - the pledge of which or security interest in which created by this Agreement is a Qualified Pledge - sufficient in amount to cause the aggregate Value of the Pre-lease Collateral then held by the Intermediary subject to a Qualified Pledge hereunder to equal or exceed the Minimum Collateral Value.

“Initial Control Agreement” means, the Securities Account Control Agreement (Fremont 3E), dated as of the Effective Date, by and among LRC (as pledgor), BTMUCLF (as secured party) and State Street Bank and Trust Company (as the bank or intermediary).

“Intermediary” means State Street Bank and Trust Company and its successors and assigns under the Initial Control Agreement or any other intermediary that replaces it as provided therein if the Initial Control Agreement is terminated pursuant to its express terms, the parties hereto agreeing that neither BTMUCLF nor any Affiliate of BTMUCLF will replace State Street Bank and Trust Company as an Intermediary prior to the Completion Date.

“Lien” means, with respect to any property or assets, any right or interest therein of a creditor to secure indebtedness or other obligations of any kind which is owed to him or any other arrangement with such creditor which provides for the payment of such indebtedness or obligations out of such property or assets or which allows him to have such indebtedness or obligations satisfied out of such property or assets prior to the general creditors of any owner thereof, including any lien, mortgage, security interest, pledge, deposit, production payment, rights of a vendor under any title retention or conditional sale agreement or lease substantially equivalent thereto, tax lien, mechanic’s or materialman’s

 

7


lien, or any other charge or encumbrance for security purposes, whether arising by law or agreement or otherwise, but excluding any right of setoff which arises without agreement in the ordinary course of business. “Lien” also means any filed financing statement, any registration with an issuer of uncertificated securities, or any other arrangement which would serve to perfect a Lien described in the preceding sentence, regardless of whether such financing statement is filed, such registration is made, or such arrangement is undertaken before or after such Lien exists.

Make Whole Amount ” means the sum of the following:

(1) the amount (if any) by which the Lease Balance exceeds any Recourse Deficiency Amount which was actually received by BTMUCLF on the Base Term Expiration Date in accordance with Articles XXI and XXII of the Lease, together with interest on such excess computed at the Overdue Rate for the period commencing on the Base Term Expiration Date and ending on the date of an Expiration True-Up; plus

(2) any unpaid Base Rent or other amounts due to BTMUCLF pursuant to the Lease or other Operative Documents (except pursuant to Other Lease Documents); plus

(3) BTMUCLF’s Transaction Costs; plus

(4) the amount, but not less than zero, by which (i) all Taxes, insurance premiums and other Claims of every kind suffered or incurred by BTMUCLF (whether or not reimbursed in whole or in part by another Person) with respect to the ownership, operation or maintenance of the Leased Property during the Extended Remarketing Period, exceeds (ii) any rents or other sums collected by BTMUCLF during such period from third parties as consideration for any lease or other contracts made by BTMUCLF that authorize the use and enjoyment of the Leased Property by such parties; together with interest on such excess computed at the Overdue Rate for each day prior to the Base Term Expiration Date.

“Minimum Collateral Value” means as of the Base Term Commencement Date or any prior date, an amount equal to the Lease Balance determined as of that date (including any Advances or other amounts added to the Lease Balance on that date as provided in the Participation Agreement).

“Other Liable Party” means any Person, other than LRC, who may now or may at any time hereafter be primarily or secondarily liable for any of the Secured Obligations or who may now or may at any time hereafter have granted to BTMUCLF a Lien against any of its assets to secure any Secured Obligations.

“Participant” means, with respect to the Lease, any Participation Holder as defined in Section 6.4 of the Participation Agreement.

Participant Downgrade Event ” means Participant or any successor of Participant fails to maintain a debt rating of at least (i) BBB- (in the case of long term debt) by Standard and Poor’s Corporation (the “S&P Rating” ), and (ii) Baa3 (in the case of long term debt) by Moody’s Investor Service, Inc. (the “Moody Rating” ) and LRC shall elect to require

 

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that the Collateral held by Participant to be transferred to an Eligible Deposit Taker pursuant to Section 3(C) hereof, provided that (i) such transferee shall satisfy the requirements of an Eligible Deposit Taker and (ii) LRC, Lessor and such replacement Eligible Deposit Taker have entered into a control agreement in form reasonably acceptable to all parties thereto. The parties hereto believe that it is improbable that the ratings systems used by Standard and Poor’s Corporation and by Moody’s Investor Service, Inc. will be discontinued or changed, but if such ratings systems are discontinued or changed, LRC shall be entitled to select and use a comparable ratings systems as a substitute for the S&P Rating or the Moody Rating, as the case may be, for purposes of determining the status of Participant or such successor as an Eligible Deposit Taker.

“Percentage” means with respect to each Participant and the Deposit Taker for such Participant, the percentage obtained by dividing (x) the amount of the Commitment and/or the outstanding Equity Investment assumed by such Participant pursuant to Section 6.4 of the Participation Agreement by (y) the aggregate amount of the Commitments and/or Equity Investment of the Participants. Percentages may be adjusted from time to time as provided in the Participation Agreement or as provided in supplements thereto executed as provided in the Participation Agreement.

“Pre-lease” means the period prior to Completion, as defined in the Lease.

“Pre-lease Account Assets” means all Pre-lease Deposits, Securities, securities entitlements and any other assets held in trust for LRC or held in any custody, subcustody, safekeeping, investment management accounts, or other accounts of LRC with the Intermediary or any other custodian, trustee, Clearing System or financial intermediary or securities intermediary (all of which shall be considered “financial assets” under the UCC).

“Pre-lease Collateral” means: (i) any and all Pre-lease Deposits, Securities and other Pre-lease Account Assets that are listed on Exhibit B ; (ii) all additions to, and proceeds, renewals, investments, reinvestments and substitutions of, the foregoing, whether or not listed on Exhibit B ; and (iii) all certificates, receipts and other instruments evidencing any of the foregoing; excluding, however, Cash Collateral and the Deposit Accounts and proceeds thereof. Without limiting the foregoing, the Pre-lease Collateral will include the Securities Account maintained by the Intermediary.

“Pre-lease Deposits” means deposits made by or on behalf of LRC with the Intermediary (whether or not held in trust, or in any custody, subcustody, safekeeping, investment management accounts, or other accounts of LRC with the Intermediary).

“Qualified Pledge” means a pledge or security interest that constitutes a valid, perfected, first priority pledge or security interest.

“Secured Obligations” means and includes all obligations of LRC under the Operative Documents (except with respect to the Other Lease Documents) including, without limitation, (i) LRC’s obligation to pay the Construction Recourse Amount as provided in Section 5.3 of the Construction Agency Agreement and Section 18.5 of the Lease, (ii) LRC’s obligation to pay the Recourse Deficiency Amount as provided in Article

 

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XXII of the Lease, (iii) LRC’s obligation to pay the Break Even Price as the purchase price for the Leased Property pursuant to Sections 20.1, 20.2 or 21.1(a) of the Lease, and (iv) any damages incurred by BTMUCLF or other amounts due under the Operative Documents (except with respect to the Other Lease Documents) following a Construction Event of Default or an Event of Default including any rejection by LRC of the Construction Agency Agreement, the Lease or any other Operative Document (except with respect to the Other Lease Documents) in any bankruptcy, insolvency or similar proceeding.

“Securities” means the stocks, bonds and other securities, whether or not held in trust or in any custody, subcustody, safekeeping, investment management accounts or other accounts of LRC with the Intermediary or any other custodian, trustee or Clearing System or held by any party as a financial intermediary or securities intermediary.

“Securities Account” has the meaning assigned to it in the Initial Control Agreement.

UCC ” means the Uniform Commercial Code as in effect in the State of New York from time to time, and the Uniform Commercial Code as in effect in any other jurisdiction which governs the perfection or non-perfection of the pledge of and security interests in the Collateral created by this Agreement.

Union Bank Downgrade Event ” means Union Bank, N.A. or any successor of Union Bank, N.A. fails to maintain a debt rating of at least (i) BBB- (in the case of long term debt) by Standard and Poor’s Corporation (the “S&P Rating” ), and (ii) Baa3 (in the case of long term debt) by Moody’s Investor Service, Inc. (the “Moody Rating” ) and LRC shall elect to require that the Collateral held by Union Bank, N.A. to be transferred to an Eligible Deposit Taker pursuant to Section 3(C) hereof, provided that (i) such transferee shall satisfy the requirements of an Eligible Deposit Taker and (ii) LRC, Lessor and such replacement Eligible Deposit Taker have entered into a control agreement in form reasonably acceptable to all parties thereto. The parties hereto believe that it is improbable that the ratings systems used by Standard and Poor’s Corporation and by Moody’s Investor Service, Inc. will be discontinued or changed, but if such ratings systems are discontinued or changed, LRC shall be entitled to select and use a comparable ratings systems as a substitute for the S&P Rating or the Moody Rating, as the case may be, for purposes of determining the status of Union Bank, N.A. or such successor as an Eligible Deposit Taker.

“Value” means, with respect to any Collateral on any date prior to the Base Term Commencement Date, a dollar value determined as follows (without duplication):

(a) Any Pre-lease Account Asset that qualifies as an Eligible Investment shall be valued in accordance with the Advance Rate table set forth as a schedule to the Initial Control Agreement on such date. Current value will be determined by the Intermediary (to the extent the Intermediary is willing to provide a valuation in accordance with this Agreement) or by BTMUCLF’s Parent (to the extent the Intermediary does not provide the valuation for any reason) using bid prices indicated by its standard and customary pricing sources, which it believes to be reliable. For example, the current value of any corporate debt obligation that meets

 

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the criteria listed in Exhibit B to the Initial Control Agreement will be determined by multiplying the remaining unpaid principal balance thereof by the bid price therefor as suggested by the standard and customary pricing sources of the Intermediary or of BTMUCLF’s Parent, as the case may be, which it believes to be reliable.

(b) For purposes of calculating “Value” as such capitalized term is used in this Agreement, any Collateral not described in the preceding clauses will be assigned a value of zero.

(B) Rules of Interpretation. The rules of interpretation set forth in Appendix I to the Participation Agreement are hereby incorporated by reference.

(C) Attachments. All attachments to this Agreement are a part hereof for all purposes.

 

2. PLEDGE AND GRANT OF SECURITY INTEREST.

As security for the Secured Obligations, LRC hereby pledges and assigns to BTMUCLF and grants to BTMUCLF a continuing security interest and lien in and against all right, title and interest of LRC in and to the following property, whether now or hereafter existing, whether tangible or intangible, whether presently owned or vested in or hereafter acquired by LRC and wherever the same may be located (collectively and severally, the “Collateral”) :

(a) all Pre-lease Collateral; and

(b) all Cash Collateral and all Deposit Accounts; and all cash and other assets from time to time held in or on deposit in any Deposit Account and all general intangibles arising from or relating to any Deposit Account or such cash or other assets; and all documents, instruments and agreements evidencing the same; and all extensions, renewals, modifications and replacements of the foregoing; and any interest or other amounts payable in connection therewith; and

(c) all proceeds of the foregoing (including whatever is receivable or received when Collateral or proceeds is invested, sold, collected, exchanged, returned, substituted or otherwise disposed of, whether such disposition is voluntary or involuntary, including rights to payment and return premiums and insurance proceeds under insurance with respect to any Collateral, and all rights to payment with respect to any cause of action affecting or relating to the Collateral).

The pledge, assignment and grant of a security interest made by LRC hereunder is for security of the Secured Obligations only; the parties to this Agreement do not intend that LRC’s delivery or deposit of any Collateral, including the Cash Collateral, as herein provided will constitute an advance payment of any Secured Obligations or liquidated damages, nor do the parties intend that the Collateral increase the dollar amount of the Secured Obligations.

 

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3. PROVISIONS CONCERNING THE DEPOSIT TAKERS.

(A) Deposit Taker Agreements . Prior to the Closing, LRC must (1) ask BTMU, as the designated Deposit Taker for BTMUCLF, and each Eligible Deposit Taker designated by any Participant to act as the Deposit Taker for it under this Agreement, to satisfy the Deposit Taker Prerequisites; and (2) execute and provide to BTMUCLF a completed Deposit Taker’s Agreement for BTMUCLF’s execution and delivery to each Deposit Taker. Promptly after receipt of a properly completed Deposit Taker’s Agreement executed by LRC and in form ready to be executed by BTMU or any other Eligible Deposit Taker named therein, BTMUCLF must execute such Deposit Taker’s Agreement and deliver it to the appropriate Deposit Taker as necessary for the satisfaction of the Deposit Taker Prerequisites.

Without limiting the foregoing, it is understood that (i) BTMUCLF and any Participant may designate BTMU as its Deposit Taker, (ii) any Participant may designate itself or any of its Affiliates as its Deposit Taker so long as the Participant or its Affiliate, as the case may be, is an Eligible Deposit Taker, and (iii) as provided in both the preceding provisions of this subparagraph and in subparagraph 3(E), BTMUCLF and LRC must promptly upon request execute and deliver any properly completed Deposit Taker Agreement requested by BTMUCLF or any Participant to facilitate the designations of Deposit Takers contemplated by this Agreement. If any Participant has not already designated an Eligible Deposit Taker to act as Deposit Taker for it under this Agreement at any time when such a designation is required, then BTMUCLF may make the designation for such Participant; subject, however, to such Participant’s rights under subparagraphs 3(D) and 3(E).

(B) Qualification of Deposit Takers Generally . Notwithstanding anything herein to the contrary, BTMUCLF may decline to deposit or maintain Cash Collateral hereunder with any Disqualified Deposit Taker.

(C) Substitutions for Disqualified Deposit Takers .

(1) Upon learning that any Deposit Taker has become a Disqualified Deposit Taker, LRC or BTMUCLF may request that the party for whom such Disqualified Deposit Taker has been designated a Deposit Taker (i.e., BTMUCLF or the applicable Participant) (a) designate another Eligible Deposit Taker as its new, substitute Deposit Taker, and (b) direct the substitute to satisfy the Deposit Taker Prerequisites.

(2) Pending the designation of a substitute Deposit Taker as provided in this subparagraph 3(C) and its execution and delivery to BTMUCLF of an appropriate Deposit Taker’s Agreement, BTMUCLF may withdraw Collateral held by the Deposit Taker to be replaced and deposit such Collateral with other Deposit Takers. If at any time no Deposit Takers have been designated other than Disqualified Deposit Takers, then BTMUCLF must itself select a new Eligible Deposit Taker to act as a Deposit Taker for it and direct the new Eligible Deposit Taker to satisfy the Deposit Taker Prerequisites.

 

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(3) If, following a BTMU Downgrade Event, BTMU subsequently maintains the S&P Rating and Moody Rating required by clauses (i) and (ii) of the definition of BTMU Downgrade Event, BTMUCLF may designate BTMU as its new, substitute Deposit Taker and to have Collateral previously withdrawn from BTMU promptly transferred to BTMU to be held in accordance herewith and the Deposit Taker’s Agreement (or a substitute Deposit Taker’s Agreement on the identical terms as that to which such Collateral was previously subject).

(D) Other Voluntary Substitutions of Deposit Takers . BTMUCLF may, and with the written approval of BTMUCLF (which approval will not be unreasonably withheld) any Participant may, at any time designate for itself a new Deposit Taker (in replacement of any prior Deposit Taker acting for it hereunder); provided, the Person so designated is not be a Disqualified Taker.

(E) Delivery of Deposit Taker’s Agreements by LRC and BTMUCLF . To the extent required for the designation of a new Deposit Taker by BTMUCLF or any Participant pursuant to subparagraph 3(D), or to permit the substitution or replacement of a Deposit Taker for BTMUCLF or any Participant as provided in subparagraphs 3(C) and 3(D), LRC and BTMUCLF shall promptly execute and deliver any properly completed Deposit Taker’s Agreement requested by BTMUCLF or the applicable Participant.

(F) Constructive Possession of Collateral . The possession by a Deposit Taker of any money, instruments, chattel paper, financial assets or other property constituting Collateral or evidencing Collateral shall be deemed to be possession by BTMUCLF or a person designated by BTMUCLF, for purposes of perfecting the security interest granted to BTMUCLF hereunder pursuant to the UCC or other Applicable Law; and notifications to a Deposit Taker by other Persons holding any such property, and acknowledgments, receipts or confirmations from any such Persons delivered to a Deposit Taker, and control agreements made by any such Person with Deposit Taker with respect to any such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, or control agreements with, financial intermediaries, bailees or agents (as applicable) of such Deposit Taker for the benefit of BTMUCLF for the purposes of perfecting such security interests under Applicable Law.

However, nothing in this subparagraph will be construed to permit or authorize any replacement of Cash Collateral required by this Agreement with other types of Collateral or any substitution of other types of Collateral for Cash Collateral hereunder.

(G) Attempted Setoff by Deposit Taker . By delivery of a Deposit Taker’s Agreement, each Deposit Taker must agree not to setoff or attempt a setoff, without in each case first obtaining the prior written authorization of BTMUCLF (which BTMUCLF will not grant without the prior written consent of all Participants, if applicable), obligations owed to such Deposit Taker against any Collateral held by it from time to time. Nevertheless, LRC acknowledges and agrees (without limiting its right to recover any resulting damages from any Deposit Taker that violates such agreements) that BTMUCLF shall not be responsible for, or be deemed to have taken any action against LRC because of, any violation of such agreement by any Deposit Taker. Further, and without limiting the foregoing, as additional consideration for BTMUCLF’s accommodations to LRC, including

 

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BTMUCLF’s acceptance of the Collateral in lieu of other forms of security as collateral for the Secured Obligations, LRC hereby waives and covenants not to assert any defense or claim arising out of (i) the California antideficiency laws, including without limitation California Code of Civil Procedure Sections 580a, 580b, 580d and 726, and (ii) without limiting the generality of the foregoing, Walker v. Community Bank , 10 Cal. 3d 729, 111 Cal. Rptr. 897, 518 P.2d 329 (1974), Security Pacific Nat’l Bank v. Wozab , 51 Cal. 3d 991, 275 Cal. Rptr. 201, 800 P.2d 557 (1990), and similar cases, to the extent such claim arises out of or relates to the exercise of set off rights by any Deposit Taker.

 

4. DELIVERY AND MAINTENANCE OF COLLATERAL.

(A) Delivery of Pre-lease Deposits by LRC . On the Effective Date and on each Monthly Date prior to the Base Term Commencement Date, if the Value of Pre-lease Collateral does not already equal or exceed the Minimum Collateral Value, LRC must deposit with the Intermediary, subject to the pledge and security interest created hereby, additional funds as necessary to cause the Value of the Pre-lease Collateral to be no less than the Minimum Collateral Value. Together with any such required deposit, LRC must deliver instructions to the Intermediary (with a copy to BTMUCLF), directing the Intermediary to deposit the funds into a specific account then pledged to BTMUCLF hereunder and to use such funds to purchase Eligible Investments, which will also be held and maintained in such pledged account as Pre-lease Collateral. Each delivery of funds required by this subparagraph must be received by the Intermediary no later than 1:00pm (New York time) on the date it is required; if received after 1:00pm it will be considered for purposes of the Lease as received on the next following Business Day. At least five days prior to any Advance Date upon which it is expected that LRC will be required to deliver additional funds pursuant to this subparagraph, LRC shall notify BTMUCLF and the Intermediary thereof and of the amount LRC expects to deliver to the Intermediary for deposit as Pre-lease Collateral on the applicable Advance Date. In addition to required deliveries of Pre-lease Deposits as provided in the foregoing provisions, LRC may on any date (whether or not an Advance Date) deliver additional Pre-lease Deposits as provided in the penultimate sentence of the definition of Event of Default above. During any period during which the Intermediary fails to timely deliver to BTMUCLF confirmation statements pursuant to the Initial Control Agreement, LRC shall provide BTMUCLF information regarding the Value of the Pre-lease Collateral as may be reasonably requested by BTMUCLF including access to such Pre-lease Collateral provided, further, however that unless such statements are timely delivered to BTMUCLF without interruption, LRC shall replace the Intermediary within forty-five (45) days of such cessation of delivery of such statements.

(B) Delivery of Cash Collateral by LRC . On the Base Term Commencement Date as a condition precedent thereto under the Participation Agreement, LRC must deliver or cause to be delivered to Deposit Takers for deposit directly into the Deposit Accounts, in either case subject to the pledge and security interest created hereby, funds as Cash Collateral then needed (if any) in an amount equal to the Lease Balance (including any Advances or other amounts added to the Lease Balance on that date as provided in the Participation Agreement).

 

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(C) Allocation of Cash Collateral Among Deposit Takers . Funds received by BTMUCLF from or on behalf of LRC as Cash Collateral on or before the Base Term Commencement Date will be allocated for deposit among the Deposit Takers (other than Disqualified Deposit Takers) as follows:

first , to the extent possible the funds will be allocated to the Intermediary as required to rectify and prevent any Collateral Imbalance; and

second , the funds will be allocated to the Deposit Taker for BTMUCLF, unless the Deposit Taker for BTMUCLF has become a Disqualified Deposit Taker, in which case the funds will be allocated to other Deposit Takers who are not Disqualified Deposit Takers as BTMUCLF deems appropriate.

(D) Status of the Deposit Accounts Under the Reserve Requirement Regulations . Each Deposit Taker shall be permitted to structure the Deposit Account maintained by it as a nonpersonal time deposit under 12 C.F.R., Part II, Chapter 204 (commonly known as “Regulation D”). Accordingly, any Deposit Taker may require at least seven days advance notice of any withdrawal or transfer of funds from the Deposit Account maintained by it and, to the extent LRC has the right to request withdrawals therefrom, may limit the number of withdrawals or transfers from such Deposit Account to no more than six in any calendar month, notwithstanding anything to the contrary herein or in any deposit agreement that LRC and such Deposit Taker may enter into with respect to such Deposit Account. As necessary to satisfy the seven days notice requirement with respect to withdrawals by BTMUCLF when required by LRC pursuant to the provisions below, BTMUCLF shall notify the affected Deposit Takers promptly after receipt of any notice from LRC described in subparagraph 5(C).

(E) Acknowledgment by LRC that Requirements of this Agreement are Commercially Reasonable . LRC acknowledges and agrees that the requirements set forth herein concerning receipt, deposit, withdrawal, allocation, application and distribution of Cash Collateral by BTMUCLF, including the requirements and time periods set forth in the Paragraph 5, are commercially reasonable.

 

5. WITHDRAWAL OF COLLATERAL.

(A) Withdrawal and Management of Pre-lease Collateral . LRC may require BTMUCLF to provide to the Intermediary approval of any directions to withdraw any specified Pre-lease Collateral from any account maintained by the Intermediary and pledged hereunder and to deliver the same to LRC (in the case of clause (A)(1)(a) below) or as may otherwise be provided in those directions (which delivery shall be free and clear of all liens and security interests hereunder and any rights of LRC thereto shall be released, terminated and waived without further action, except in the case of any delivery of funds by the Intermediary to BTMUCLF on behalf of LRC to satisfy the requirements of subparagraph 5(A)(1)(b) below), if, but only if, in each case all four of the following conditions are satisfied:

(1) Either:

 

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(a) such withdrawal and delivery of specified Pre-lease Collateral will not cause the Value of the remaining Pre-lease Collateral, which is subject to a Qualified Pledge hereunder, to be less than the Minimum Collateral Value; or

(b) the Completion Date shall have occurred and LRC shall already have delivered sufficient Cash Collateral to BTMUCLF to satisfy the requirements of subparagraph 4(B) above; or

(c) the directions to be approved by BTMUCLF will require the Intermediary to withdraw and deliver funds directly to and only to BTMU as Eligible Deposit Taker for BTUMCLF or such other Eligible Deposit Taker as may be directed by BTMUCLF, on behalf of LRC, as Cash Collateral pledged pursuant to this Agreement.

(2) LRC must give BTMUCLF notice of the required withdrawal three Business Days prior to the date upon which the withdrawal is to occur, together a copy of the directions to the Intermediary for which BTMUCLF’s approval will be required by this subparagraph 5(A) to accomplish the withdrawal.

(3) No Default (under and as defined in this Agreement) shall have occurred and be continuing, and no Default (as defined in the Lease) shall have occurred and be continuing, at the time LRC gives the notice required by the preceding subparagraph or on the date upon which the withdrawal is required. Furthermore, in order to preserve BTMUCLF’s right to prohibit withdrawals when a Default (as defined herein or in the Lease) has occurred and is continuing, the directions to be approved by BTMUCLF must expressly confirm and provide that BTMUCLF may terminate its approval, and thereby prohibit subsequent withdrawals without its consent, by notice given to the Intermediary.

(4) LRC will not request BTMUCLF’s approval of more than one withdrawal of Pre-lease Collateral during any one calendar month.

If the conditions listed in the preceding clauses (1), (3) and (4) are satisfied, and if BTMUCLF receives from LRC the notice and the copy of directions to the Intermediary described in the preceding clause (2) less than three Business Days prior to, but at least one Business Day prior to, the date upon which a withdrawal is expected to occur, then BTMUCLF will endeavor in good faith to quickly evaluate and act upon the notice so as not to delay the withdrawal; provided, however, in that event, BTMUCLF will suffer no liability for failing to do so.

In addition to LRC’s right to arrange withdrawals of Pre-lease Collateral upon satisfaction of the conditions specified above in this subparagraph, so long as the Intermediary is State Street Bank and Trust Company and it remains bound by the Initial Control Agreement, and prior to BTMUCLF’s delivery of any Notice of Control (under and as defined in the Initial Control Agreement), LRC may also give Proper Instructions (under and as defined in the Initial Control Agreement) directing the Intermediary to (i) allocate or reallocate

 

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investments held in the Securities Account among Eligible Investments (including directions to liquidate any Eligible Investment in whole or in part and then reinvest the proceeds thereof in one or more other Eligible Investments) or (ii) substitute Eligible Investments with other Eligible Investments in a manner that satisfies the conditions to substitutions expressly set forth in the Initial Control Agreement.

(B) Withdrawal of Cash Collateral Upon the Occurrence and During the Continuance of an Event of Default . Upon the occurrence and during the continuance of an Event of Default, without any instruction or request of LRC, BTMUCLF may withdraw and retain any Cash Collateral held by any Deposit Taker (which retention by BTMUCLF shall be free and clear of all liens and security interests hereunder and any rights of LRC thereto shall be released, terminated and waived without further action) as a payment on behalf of LRC of any amounts then due from LRC under Article XVIII of the Lease. To the extent BTMUCLF has exercised its rights and remedies thereunder and has indefeasibly satisfied the Secured Obligations in full in accordance with Article XVIII of the Lease, LRC may require BTMUCLF to withdraw and promptly pay to LRC any Cash Collateral still held by any Deposit Taker.

(C) Withdrawal and Application of Cash Collateral to Reduce or Satisfy the Secured Obligations to BTMUCLF . Except following the occurrence and during the continuance of an Event of Default, to satisfy the Secured Obligations in full, LRC may require BTMUCLF to withdraw and retain any Cash Collateral held by any Deposit Taker on the Base Term Expiration Date (which retention by BTMUCLF shall be free and clear of all liens and security interests hereunder and any rights of LRC thereto shall be released, terminated and waived without further action) as a payment on behalf of LRC of any amounts then due from LRC under Articles XX, XXI or XXII of the Lease; provided, that by a notice in the form of Exhibit C , LRC must have notified BTMUCLF of the required withdrawal and payment to BTMUCLF at least ten days prior to the date upon which it is to occur and when no Event of Default (under and as defined in this Agreement or as defined in the Lease) has occurred and is continuing. To the extent LRC has validly exercised the Return Option under the Lease and the Recourse Deficiency Amount has been indefeasibly satisfied in full on the Base Term Expiration Date in accordance with Articles XXI and XXII of the Lease, LRC may require BTMUCLF to withdraw and pay to LRC Cash Collateral held by any Deposit Taker on the Base Term Expiration Date in an amount not to exceed the Make Whole Amount and when no Default or Event of Default (under and as defined in this Agreement or as defined in the Lease) has occurred and is continuing.

(D) Withdrawal and Return of Cash Collateral Following Satisfaction of all Secured Obligations . Following the Base Term Expiration Date, when all Secured Obligations have been indefeasibly satisfied in full, any remaining Cash Collateral that has not been withdrawn and applied against the Secured Obligations shall revert to LRC as provided in subparagraph 9(F), whereupon LRC may require BTMUCLF to withdraw such remaining Cash Collateral then maintained pursuant to this Agreement and promptly transfer such remaining Cash Collateral to LRC.

(E) No Other Right to Require or Make Withdrawals . LRC may not withdraw or require any withdrawal of Collateral from any account or deposit account pledged

 

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hereunder, including the Deposit Accounts, except as expressly provided in the preceding subparagraphs of this Paragraph 5. LRC acknowledges that it will have no check writing privileges or line of credit or credit card privileges under any such pledged account or deposit account, including the Deposit Accounts.

(F) BTMUCLF’s Covenant Not to Make Unauthorized Withdrawals . Notwithstanding provisions of any Control Agreement or of any Deposit Taker’s Agreement which may state that BTMUCLF is entitled to withdraw Collateral held by the Intermediary or any Deposit Taker without any prior consent or authorization of LRC, BTMUCLF covenants to LRC (as between BTMUCLF and LRC) that BTMUCLF will not exercise such rights to withdraw Collateral except (1) as required or permitted by this Paragraph 5, (2) in the exercise of BTMUCLF’s rights or remedies as otherwise herein provided, or (3) as may from time to time be requested or approved by LRC.

 

6. REPRESENTATIONS AND COVENANTS OF LRC.

(A) Representations of LRC . LRC represents to BTMUCLF as follows:

(1) LRC is the legal and beneficial owner of the Collateral (or, in the case of after-acquired Collateral, at the time LRC acquires rights in the Collateral, will be the legal and beneficial owner thereof), subject to the pledge and rights hereby granted in favor of BTMUCLF. No other Person has (or, in the case of after-acquired Collateral, at the time LRC acquires rights therein, will have) any right, title, claim or interest (by way of Lien, purchase option or otherwise) in, against or to the Collateral, except for rights created hereunder. The Collateral shall be deposited with the Deposit Taker hereunder and under the Deposit Taker’s Agreement free and clear of any Lien.

(2) BTMUCLF has (or in the case of after-acquired Collateral, at the time LRC acquires rights therein, will have) a valid, first priority, perfected pledge of and security interest in the Collateral, regardless of the characterization of the Collateral as deposit accounts, instruments or general intangibles under the UCC, but assuming that the representations of each Deposit Taker in its Deposit Taker’s Agreement are true.

(3) LRC has delivered to BTMUCLF, together with all necessary stock powers, endorsements, assignments and other necessary instruments of transfer, the originals of all documents, instruments and agreements evidencing the Collateral in order to comply with Section 2 of the Initial Control Agreement.

(4) Neither the ownership or the intended use of the Collateral by LRC, nor the pledge of Collateral or the grant of the security interest by LRC to BTMUCLF herein, nor the exercise by BTMUCLF of its rights or remedies hereunder, will (i) violate any provision of (a) Applicable Law, (b) the articles or certificate of incorporation, charter or bylaws of LRC, or (c) any agreement, judgment, license, order or permit applicable to or binding upon LRC or its properties, or (ii) result in or require the creation of any Lien, charge or encumbrance upon any assets or properties of LRC except as expressly

 

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contemplated in this Agreement. Except as expressly contemplated in this Agreement, no consent, approval, authorization or order of, and no notice to or filing with any court, governmental authority or third party is required in connection with the pledge or grant by LRC of the security interest contemplated herein or the exercise by BTMUCLF of its rights and remedies hereunder.

(B) Covenants of LRC . LRC hereby agrees as follows:

(1) LRC, at LRC’s expense, shall promptly procure, execute and deliver to BTMUCLF all documents, instruments and agreements and perform all acts which are necessary or desirable, or which BTMUCLF may request, to establish, maintain, preserve, protect and perfect the Collateral, the pledge thereof to BTMUCLF or the security interest granted to BTMUCLF therein and the first priority of such pledge or security interest or to enable BTMUCLF to exercise and enforce its rights and remedies hereunder with respect to any Collateral. Without limiting the generality of the preceding sentence, LRC shall (A) procure, execute and deliver to BTMUCLF all stock powers, endorsements, assignments, fmancing statements and other instruments of transfer requested by BTMUCLF, (B) deliver to BTMUCLF promptly upon receipt all originals of Collateral consisting of instruments, documents and chattel paper, and (C) cause the security interest of BTMUCLF in any Collateral consisting of securities to be recorded or registered in the books of any financial intermediary or Clearing System requested by BTMUCLF.

(2) When Applicable Law provides more than one method of perfection of BTMUCLF’s security interest in the Collateral, BTMUCLF may choose the method(s) to be used. LRC hereby authorizes BTMUCLF to file any financing statements or financing statement amendment covering all or any portion of the Collateral or relating to the security interest created herein.

(3) LRC shall not use or authorize or consent to any use of any Collateral in violation of any provision of this Agreement or any other Operative Document or any Applicable Law.

(4) LRC shall pay promptly when due all Taxes and other governmental charges, Liens and other charges now or hereafter imposed upon, relating to or affecting any Collateral or arising on any interest or earnings thereon.

(5) LRC shall appear in and defend, on behalf of BTMUCLF, any action or proceeding which may affect LRC’s title to or BTMUCLF’s interest in the Collateral.

(6) Subject to the express rights of LRC under Paragraph 5, LRC shall not surrender or lose possession of (other than to BTMUCLF or an Intermediary or a Deposit Taker pursuant hereto), encumber, lease, rent, option, or otherwise dispose of or transfer any Collateral or right or interest therein, and LRC shall keep the Collateral free of all Liens (other than Liens granted under this Agreement). Without limiting the foregoing, LRC will not, with respect to any Pre-lease

 

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Collateral, (i) file or permit to be filed any financing or like statement in which BTMUCLF is not named as the sole secured party, (ii) consent or be a party to any securities account control agreement or other similar agreement with any Intermediary to which BTMUCLF is not also a party, (iii) pledge or otherwise encumber such Pre-lease Collateral, or (iv) except as permitted by the last sentence of subparagraph 5(A)(3) above, sell, assign, or otherwise dispose of, or grant any option with respect to, such Pre-lease Collateral. The rights granted to BTMUCLF pursuant to this Agreement are in addition to the rights granted to BTMUCLF in any Control Agreement or other custody, investment management, trust, account control agreement or similar agreement. In case of conflict between the provisions of this Agreement and of any other such agreement, the provisions of this Agreement will prevail.

(7) LRC will not take any action which would in any manner impair the value or enforceability of BTMUCLF’s pledge of or security interest in any Collateral, nor will LRC fail to take any action which is required to prevent (and which LRC knows is required to prevent) an impairment of the value or enforceability of BTMUCLF’s pledge of or security interest in any Collateral.

(8) Without limiting the foregoing, within five days after LRC becomes aware of any failure of the pledge or security interest contemplated herein in any Pre-lease Collateral or any Deposit Account or Cash Collateral to be a valid, perfected, first priority pledge or security interest (regardless of the characterization thereof as deposit accounts, securities accounts, instruments or general intangibles under the UCC), LRC shall notify BTMUCLF of such failure.

 

7. AUTHORIZED ACTION BY BTMUCLF.

LRC hereby irrevocably appoints BTMUCLF as LRC’s attorney-in-fact for the purpose of authorizing BTMUCLF to perform (but BTMUCLF shall not be obligated to and shall incur no liability to LRC or any third party for failure to perform) any act which LRC is obligated by this Agreement to perform, and to exercise, consistent with the other provisions of this Agreement, such rights and powers as LRC might exercise with respect to the Collateral during any period in which a Default has occurred and is continuing, including the right to (a) collect by legal proceedings or otherwise and endorse, receive and receipt for all dividends, interest, payments, proceeds and other sums and property now or hereafter payable on or on account of the Collateral; (b) enter into any extension, reorganization, deposit, merger, consolidation or other agreement pertaining to, or deposit, surrender, accept, hold or apply other property in exchange for the Collateral; (c) insure, process, preserve and enforce the Collateral; (d) make any compromise or settlement, and take any action it deems advisable, with respect to the Collateral; (e) pay any indebtedness of LRC relating to the Collateral; and (f) execute UCC financing statements and other documents, instruments and agreements required hereunder. Such appointment is coupled with an interest and shall be valid and binding on LRC and its successor and assigns.

 

8. DEFAULT AND REMEDIES.

 

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(A) Remedies . In addition to all other rights and remedies granted to BTMUCLF by this Agreement and other Operative Documents (except under Other Lease Documents) or by the UCC and other Applicable Laws, BTMUCLF may, upon the occurrence and during the continuance of any Event of Default (as defined herein and in the Lease), exercise any one or more of the following rights and remedies, all of which will be in furtherance of its rights as a secured party under the UCC:

(1) BTMUCLF may collect, receive, appropriate or realize upon the Collateral or otherwise foreclose or enforce the pledge of or security interests in any or all Collateral in any manner permitted by Applicable Law or in this Agreement.

(2) BTMUCLF may notify any Deposit Taker to pay all or any portion of Cash Collateral held by such Deposit Taker directly to BTMUCLF up to an amount equal to the then outstanding Secured Obligations. BTMUCLF shall apply any Cash Collateral or proceeds of other Collateral received by BTMUCLF after the occurrence of such an Event of Default to the Secured Obligations in any order BTMUCLF believes to be in its best interest. If any such Cash Collateral or proceeds received by BTMUCLF remains after all Secured Obligations have been paid in full, BTMUCLF will deliver or direct the Deposit Takers to deliver the same to LRC or other Persons entitled thereto.

Without limiting the foregoing, when any such Event of Default has occurred and is continuing, BTMUCLF may, without notice or demand, sell, redeem, offset, setoff, debit, charge or otherwise dispose of or liquidate into cash any Collateral and/or to apply it or the proceeds thereof to repay any or all of the Secured Obligations in such order as BTMUCLF believes to be in its best interest, regardless of whether any such Secured Obligations are contingent, unliquidated or unmatured or whether BTMUCLF has any other recourse to LRC or any Other Liable Party or any other collateral or assets (including the Property). Moreover, regardless of whether BTMUCLF commences any action to foreclose the lien and security interest granted in the Lease or the Memorandum of Lease (a “Property Foreclosure” ) before, after or contemporaneously with any action BTMUCLF may take under this Pledge Agreement to collect Cash Collateral or proceeds of other Collateral, and regardless of whether BTMUCLF actually receives proceeds of a Property Foreclosure before or after it receives Cash Collateral or proceeds of other Collateral, BTMUCLF will be entitled to apply Cash Collateral and proceeds of other Collateral to satisfy or reduce the Secured Obligations before applying the proceeds of a Property Foreclosure to other remaining obligations secured as described in the Lease and the Memo of Lease. Also, BTMUCLF may exercise its rights without regard to any premium or penalty from liquidation of any Collateral and without regard to LRC’s basis or holding period for any Collateral.

In connection with the exercise of its remedies under this Agreement, BTMUCLF may sell from its offices in Boston, Massachusetts, New York, New York or elsewhere, in one or more sales, at the price as BTMUCLF deems best, for cash or on credit or for other property, for immediate or future delivery, any item of the Collateral, at any broker’s board or at public or private sale, in any reasonable manner permissible under the UCC (except that, to the extent permissible under the UCC, LRC waives any requirements of the UCC) and

 

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BTMUCLF or anyone else may be the purchaser of the Collateral and hold it free from any claim or right including, without limitation, any equity of redemption of LRC, which right LRC expressly waives. BTMUCLF may in its sole discretion elect to conduct any sale (and related offers) of any Collateral in such a manner as to avoid the need for registration or qualification thereof under any Federal or state securities laws, that such conduct may include restrictions (including as to potential purchasers) and other requirements (such as purchaser representations) which may result in prices or other terms less favorable than those which might have been obtained through a public sale not subject to such restrictions and requirements and that any offer and sale so conducted shall be deemed to have been made in a commercially reasonable manner.

In connection with the exercise of its remedies, BTMUCLF may also, in its sole discretion, for its own benefit, acting either in its own name or in the name of LRC:

(i) hold any monies or proceeds representing the Collateral in a cash collateral account in U.S. dollars or other currency that BTMUCLF reasonably selects and invest such monies or proceeds on behalf of LRC;

(ii) with respect to any deposits constituting Pre-lease Collateral: (x) renew such deposits on terms and for periods BTMUCLF deems appropriate; (y) demand, collect, and receive payment of any monies or proceeds due or to become due in respect of such deposits; or (z) execute any instruments required for the withdrawal or repayment of the such deposits;

(iii) with respect to any Securities constituting Pre-lease Collateral: A) transfer such Securities to an account of BTMUCLF, whether in the possession of, or registered in the name of, any Clearing System or held otherwise; B) transfer any such Securities held in book entry form with any Federal Reserve Administrative Agent to the account of BTMUCLF with such Federal Reserve Administrative Agent; or C) transfer any such Securities registered in the name of LRC to the name of BTMUCLF or its nominee and complete and deliver any necessary stock powers or other transfer instruments;

(iv) convert any Collateral denominated in a currency other than U.S. dollars to U.S. dollars at the spot rate of exchange for the purchase of U.S. dollars with such other currency which is quoted by a branch or office of BTMUCLF’s Parent selected by BTMUCLF (or, if no such rate is quoted by BTMUCLF’s Parent on any relevant date, then at a rate estimated by BTMUCLF on the basis of other quoted spot rates) or another prevailing rate that BTMUCLF reasonably deems more appropriate; or

(v) apply any portion of the Collateral, first, to pay or reimburse all costs and expenses of BTMUCLF and then to all or any portion of the Secured Obligations in such order as BTMUCLF may believe to be in its best interest.

In any event, LRC will pay to BTMUCLF upon demand all expenses (including reasonable, out-of-pocket fees, costs and expenses of counsel to BTMUCLF and any Participant)

 

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incurred by BTMUCLF in connection with the exercise of any of BTMUCLF’s rights or remedies under this Agreement.

Notwithstanding that BTMUCLF may continue to hold Collateral and regardless of the value of the Collateral, LRC will remain liable for the payment in full of any unpaid balance of the Secured Obligations.

In any case where notice of any sale or disposition of any Collateral is required, LRC hereby agrees that ten (10) days notice of such sale or disposition is reasonable.

(B) Recovery Not Limited . To the fullest extent permitted by Applicable Law, LRC waives any right to require that BTMUCLF proceed against any other Person, exhaust any Collateral or other security for the Secured Obligations, or to have any Other Liable Party joined with LRC in any suit arising out of the Secured Obligations or this Agreement, or pursue any other remedy in their power. LRC waives any and all notice of acceptance of this Agreement.

LRC further waives notice of the creation, modification, rearrangement, renewal or extension for any period of any of the Secured Obligations of any Other Liable Party from time to time and any defense arising by reason of any disability or other defense of any Other Liable Party or by reason of the cessation from any cause whatsoever of the liability of any Other Liable Party. Until all of the Secured Obligations shall have been paid in full, LRC shall have no right to subrogation, reimbursement, contribution or indemnity against any Other Liable Party and LRC waives the right to enforce any remedy which BTMUCLF has or may hereafter have against any Other Liable Party, and waives any benefit of and any right to participate in any other security whatsoever now or hereafter held by or on behalf of BTMUCLF. LRC authorizes BTMUCLF, without notice or demand and without any reservation of rights against LRC and without affecting LRC’s liability hereunder or on the Secured Obligations, from time to time to (a) take or hold any other property of any type from any other Person as security for the Secured Obligations, and exchange, enforce, waive and release any or all of such other property, (b) after and during the continuance of any Event of Default (as defined herein or in the Lease), apply or require the application of the Collateral (in accordance with this Agreement) or such other property in any order they may determine and to direct the order or manner of sale thereof as they may determine, (c) renew, extend for any period, accelerate, modify, compromise, settle or release any of the obligations of any Other Liable Party with respect to any or all of the Secured Obligations or other security for the Secured Obligations, and (d) release or substitute any Other Liable Party.

 

9. MISCELLANEOUS.

(A) Payments by LRC to BTMUCLF . All payments and deliveries of funds required to be made by LRC to BTMUCLF hereunder shall be paid or delivered in immediately available funds by wire transfer to the Deposit Account in accordance with wiring instructions which will be provided by BTMUCLF to LRC. Time is of the essence as to all payments and deliveries of funds by LRC to BTMUCLF under this Agreement.

 

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(B) Payments by BTMUCLF to LRC . All payments of Cash Collateral withdrawn by BTMUCLF from the Deposit Accounts and required to returned by BTMUCLF to LRC hereunder shall be paid or delivered in immediately available funds by wire transfer to:

 

Bank Name:        
Bank Address:        
ABA # (Domestic):        
SWIFT ID (Inn):        
Account Name:        
Account Number:        
Bank Contact:        
       
       
Reference        

or at such other place and in such other manner as LRC may designate in a notice sent to BTMUCLF. Time is of the essence as to all such payments by BTMUCLF to LRC.

(C) Cumulative Rights, etc. Except as herein expressly provided to the contrary, the rights, powers and remedies of BTMUCLF under this Agreement shall be in addition to all rights, powers and remedies given to them by virtue of any Applicable Law, any other Operative Document or any other agreement, all of which rights, powers, and remedies shall be cumulative and may be exercised successively or concurrently without impairing their respective rights hereunder. LRC waives any right to require BTMUCLF to proceed against any Person or to exhaust any Collateral or other collateral or security or to pursue any remedy in BTMUCLF’s power.

(D) Survival of Agreements . All representations and warranties of LRC herein, and all covenants and agreements herein shall survive the execution and delivery of this Agreement, the execution and delivery of any other Operative Documents and the creation of the Secured Obligations and continue until terminated or released as provided herein.

(E) Other Liable Party . Neither this Agreement nor the exercise by BTMUCLF or the failure of BTMUCLF to exercise any right, power or remedy conferred herein or by law shall be construed as relieving LRC or any Other Liable Party from liability on the Secured Obligations or any deficiency thereon. This Agreement shall continue irrespective of the fact that the liability of any Other Liable Party may have ceased or irrespective of the validity or enforceability of any other agreement evidencing or securing the Secured Obligations to which LRC or any Other Liable Party may be a party, and notwithstanding the reorganization, death, incapacity or bankruptcy of any Other Liable Party, or any other event or proceeding affecting any Other Liable Party.

(F) Termination . Following the Base Term Expiration Date, upon indefeasible satisfaction in full of all Secured Obligations (other than contingent indemnity obligations for which no Claim has been made or are not due and payable) and upon written request for

 

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the termination of this Agreement delivered by LRC to BTMUCLF, BTMUCLF will execute and deliver, at LRC’s expense, an acknowledgment that this Agreement and the pledge and security interest created hereby are terminated, whereupon all rights to any remaining Collateral that has not been applied against Secured Obligations in accordance with this Agreement shall revert to LRC.

[Signature pages to follow]

 

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IN WITNESS WHEREOF, this Agreement is executed to be effective as of the date first written above.

 

BTMU CAPITAL LEASING & FINANCE, INC.,
a Delaware corporation
By:  

/s/ Michael D. Doyle

Name:   Michael D. Doyle
Title:   President


LAM RESEARCH CORPORATION,
a Delaware Corporation
By:  

/s/ Odette Go

Name:   Odette Go
Title:   Treasurer


Exhibit A

TO PLEDGE AGREEMENT

DEPOSIT AGREEMENT

(FREMONT 3E)

Dated as of December 31, 2013

The Bank of Tokyo-Mitsubishi UFJ, Ltd.

Global Markets Division for the Americas

1251 Avenues of the Americas

New York, New York 10020-1104

Dear Ladies and Gentlemen:

LAM Research Corporation, a Delaware corporation (“ LRC ”), refers to that certain Pledge Agreement (Fremont 3E), dated as of December 31, 2013 (as amended or otherwise modified from time to time, the “Pledge Agreement” ), between BTMU Capital Leasing & Finance, Inc. (“ BTMUCLF ”) and LRC. All capitalized terms used herein and not otherwise defined herein shall have the same meanings herein as set forth in the Pledge Agreement. All terms used in this Agreement which are defined in the UCC and not otherwise defined herein shall have the same meanings herein as set forth therein, except where the context otherwise requires.

This Deposit Agreement (this “ Agreement ”), is among The Bank of Tokyo-Mitsubishi UFJ, Ltd. (“ Deposit Taker ”), LRC and BTMUCLF and shall serve as instructions regarding the following deposit account established by LRC at the Deposit Taker (the “ Deposit Account ”):

 

Account
Type

  

Account
Office

    

Account/IMMS/WSS
Numbers

       

 

  

 

    

 

On the Base Term Commencement Date, LRC will delivered to Deposit Taker for deposit initially in such Deposit Account (or such other account as BTMUCLF shall notify LRC in writing), which may not necessarily bear any special title or which may be entitled: “LAM RESEARCH CORPORATION COLLATERAL ACCOUNT FOR THE BENEFIT OF BTMU CAPITAL LEASING & FINANCE INC.” or such other title as may be acceptable to Deposit Taker the sums required under Section 4(B) of the Pledge Agreement in immediately available funds and which may thereafter be held in (but are not necessarily limited to) the


form of one or more time deposits, certificates of deposit, other deposits or instruments of any type which at all times shall be under the dominion and control of the Deposit Taker (such funds, whether now or at any time hereafter on deposit with or payable or withdrawable from the Deposit Taker (whether from the Deposit Account or any other deposit account, or any time deposit, certificate of deposit, or any other deposit or instrument of any type)), together with any amounts or accruals subsequently added to or earned, including interest, by such funds and all additional funds hereafter deposited into the Deposit Account hereunder or otherwise or given in substitution for such funds, being referred to herein as the “ Deposited Funds ”). Any such Deposited Funds and any funds or deposits which at any time derive from, consist of or represent Deposited Funds (including, but not limited to, time deposits, certificates of deposit, other deposits or instruments of any type), all proceeds, income and profits thereon and therefrom, and the Deposit Account and any deposit account in which any of the foregoing is deposited or held, and all of LRC’s rights and interests therein and claims against Deposit Taker with respect thereto, are collectively referred to herein as, the “ Cash Collateral ”. Without limiting any of Deposit Taker’s other rights or remedies Deposit Taker shall have all the rights and remedies of a secured party under the Uniform Commercial Code and all other applicable law with respect to the Cash Collateral and each such deposit account, all of which LRC acknowledges is to be deemed a “deposit account” defined by the Uniform Commercial Code. LRC understands that Deposit Taker may combine the Deposited Funds and Cash Collateral with other funds and will not be required to keep them separate and identifiable and that the Deposited Funds and Cash Collateral may be invested, reinvested, held or otherwise utilized by the Deposit Taker without any direction of the Parties. If such commingling occurs, Deposit Taker may consider the Deposited Funds to consist at any time of any and all funds in any relevant account up to the amount required to be held by Deposit Taker pursuant hereto.

1. Lien . As security for immediate payment and performance when due of all of the Secured Obligations as defined in the Pledge Agreement owing by LRC, whensoever arising, whether now existing or hereafter incurred, of every kind and character, including, without limitation, arising or otherwise existing under or with respect to the Amended and Restated Lease Agreement (Fremont 3), dated as of December 31, 2013 (as amended or otherwise modified from time to time, the “Lease Agreement” ), between BTMUCLF and LRC and the Operative Documents (except with respect to the Other Lease Documents) (all such obligations, liabilities and indebtedness being referred to herein collectively as the “Secured Obligations” ), LRC hereby pledges and assigns to BTMUCLF and grants to BTMUCLF a continuing first priority security interest in the following (the “ Collateral ”): (i) the Deposit Account, (ii) the Cash Collateral, (iii) all Deposited Funds, (iv) any and all accounts to which the Deposited Funds or the proceeds thereof are credited, (v) all amounts, money and other property standing to the credit of any such accounts, together with any and all documents evidencing or constituting such amounts, money and other property, (vi) all instruments, investment property and the like in which such property is from time to time invested or reinvested and all interest, distributions, other income and the like payable with respect thereto, and (vii) all replacements, renewals, substitutions, products, profits and proceeds of the foregoing in whatever form. The parties hereto agree that this Agreement complies with Section 9-104(a)(2) of the New York Uniform Commercial Code. So long as

 

2


this Agreement remains in full force and effect, LRC shall have no right to be paid or to draw upon, transfer or otherwise dispose of any of the Cash Collateral, and Deposit Taker shall have exclusive dominion and control of all Cash Collateral. Deposit Taker has and shall have “control”, as contemplated by Article 9 of the Uniform Commercial Code, including Section 9-104 thereof, of the Deposit Account, the Deposited Funds, the Cash Collateral and of any deposit account in which any Cash Collateral is deposited.

2. Duties . Deposit Taker agrees to take such action with respect to the Deposit Account as shall from time to time be specified in any writing purportedly from BTMUCLF as provided herein. LRC and BTMUCLF agree that: (a) Deposit Taker has no duty to monitor the balance of the Deposit Account; (b) BTMUCLF may at any time make withdrawals from the Deposit Account and take any and all actions with respect to the Deposit Account, and Deposit Taker is hereby authorized to honor any instructions with respect to the Deposit Account (including withdrawals therefrom) which purport to be from BTMUCLF (in each case without notifying or obtaining the consent of LRC); (c) Deposit Taker may, without further inquiry, rely on and act in accordance with any instructions it receives from (or which purport to be from) BTMUCLF, notwithstanding any conflicting or contrary instructions it may receive from LRC, and Deposit Taker shall have no liability to BTMUCLF, LRC or any other person in relying on and acting in accordance with any such instructions; (d) Deposit Taker shall have no responsibility to inquire as to the form, execution, sufficiency or validity of any notice or instructions delivered to it hereunder, nor to inquire as to the identity, authority or rights of the person or persons executing or delivering the same, and (e) Deposit Taker shall have a reasonable period of time within which to act in accordance with any notice or instructions from BTMUCLF with respect to the Deposit Account. Deposit Taker is hereby authorized immediately, and without demand upon or notice to LRC or other formality, to take direction from BTMUCLF acting in accordance with the terms and conditions of the Pledge Agreement to (i) withdraw and deliver any and all Cash Collateral and Deposited Funds to LRC, (ii) withdraw and apply any and all Cash Collateral and Deposited Funds to reduce or satisfy any and all Secured Obligations in any order and first toward any expenses Deposit Taker incurs in Deposit Taker’s discretion, as and when they arise or are due, without resort to LRC, any other collateral or any other obligor, or (iii) withdraw and return Cash Collateral and Deposited Funds to LRC.

3. Interest on the Deposit Account . Deposit Taker will have no obligation to pay any interest on the Deposit Account except as follows: on each Payment Date accrued interest on each Deposit Account maintained by Deposit taker will be paid by wire transfer to the LRC for the period (the “Interest Period” ) since the preceding Payment Date (or if there was no preceding Payment Date, since the Base Term Commencement Date) equal to the product of:

 

    the Deposited Funds on deposit with the Deposit Taker on the first day of such Interest Period, times

 

    LIBOR Rate less 0.125% (but in no event less than zero) for such Interest Period, times

 

    the number of days in such Interest Period, divided by;

 

3


    three hundred sixty.

As used in this Section 3, capitalized terms defined in the Participation Agreement are intended to have the respective meanings assigned to them in the Participation Agreement.

All payments of interest by Deposit Taker hereunder to LRC hereunder shall be paid or delivered in immediately available funds by wire transfer to:

 

Bank Name:        
Bank Address:        
ABA # (Domestic):        
SWIFT ID (Inn):        
Account Name:        
Account Number:        
Bank Contact:        
       
       
Reference        

or at such other place and in such other manner as LRC may designate in a notice sent to the Deposit Taker. Time is of the essence as to all such payments by Deposit Taker to LRC.

4. Remedies . LRC agrees that, at any time after an Event of Default has occurred or any Secured Obligation arises or comes due, Deposit Taker may, without notice or demand (all of which LRC hereby waives), to take direction from BTMUCLF acting in its sole discretion to realize upon and apply all or any part of the Cash Collateral to the payment of all or any part of the Secured Obligations, in such order and manner as BTMUCLF may elect and Deposit Taker is authorized to take direction from BTMUCLF acting in its sole discretion to break any time deposit or certificate deposit prior to its stated maturity and for which LRC shall have responsibility for any loss of interest or early withdrawal penalties resulting therefrom. BTMUCLF shall not be required to pursue any other right or remedy against LRC, or any other person liable for any part of the Secured Obligations, or enforce its security interest in or liens on any other property securing the Secured Obligations, prior to enforcing Deposit Taker’s rights against the Cash Collateral. Without limiting the foregoing, Deposit Taker is hereby authorized immediately, and without demand upon or notice to LRC or other formality, to take direction from BTMUCLF acting in its sole discretion on and during the continuance of an Event of Default (as such term is defined in the Pledge Agreement), apply and setoff against the Cash Collateral and the Deposited Funds the aggregate amount of all principal of, interest on and other amounts payable with respect to all Secured Obligations existing or payable as of such date, whether or not then due.

5. Representations, Warranties and Covenants . LRC hereby represents, warrants and covenants to Deposit Taker and BTMUCLF that: (i) the Collateral is and will be owned by LRC free and clear of all claims, liens, security interests, pledges and encumbrances of any kind, except in Deposit Taker’s favor; (ii) LRC is a corporation, duly organized and validly existing in good standing under the laws of State of Delaware, and have the right and power to execute, deliver and perform this Agreement, and to pledge, assign and grant a security

 

4


interest in the Collateral in accordance herewith; (iii) this Agreement has been duly authorized, executed and delivered by LRC (and those individuals who have signed on its behalf have the authority to do so consistent with resolutions on file in Deposit Taker’s offices) and constitutes its legal, valid, binding and enforceable obligation; (iv) Deposit Taker has and will continue at all times to have a first priority perfected and enforceable lien and security interest in the Collateral, subject to no other liens, security interests or encumbrances; (v) LRC shall not take any action or otherwise make any attempt to draw upon, transfer or otherwise dispose of the Collateral or permit the amount of Collateral to decrease at any time; and (vi) LRC shall from time to time at Deposit Taker’s request, execute, deliver, acknowledge, file and record such agreements, documents, statements and certificates (including, without limitation, Uniform Commercial Code financing statements), and do such acts and things as are necessary or appropriate to effectuate the purposes of this Agreement. LRC hereby authorizes Deposit Taker to file any Uniform Commercial Code financing statements, amendments thereto or continuations thereof, and any other appropriate security documents or instruments and to give any notices necessary or desirable to perfect any lien or security interest granted hereby, all without the signature of the LRC or to execute such items as attorney-in-fact for the LRC, as may be necessary to further the purposes described herein. Deposit Taker shall at all times have the exclusive right to hold and possess any certificates, instruments or documents included in the Collateral. Should LRC at any time receive any such certificates, instruments or documents LRC shall hold the same in trust for, and immediately deliver them to, Deposit Taker. Any breach of any representation, warranty, covenant or agreement made by LRC herein or elsewhere shall be an “ Event of Default ”. An “ Event of Default ” shall also be as defined in the Pledge Agreement.

6. Information . Deposit Taker shall provide BTMUCLF with such information with respect to the Deposit Account and all items (and proceeds thereof) deposited in the Deposit Account as BTMUCLF may from time to time reasonably request, and LRC hereby consents to such information being provided to BTMUCLF and agrees to pay all expenses in connection therewith.

7. Exculpation; Indemnity . Deposit Taker undertakes to perform only such duties as are expressly set forth herein. Notwithstanding any other provisions of this Agreement, the parties hereby agree that Deposit Taker shall not be liable for any action taken by it in accordance with this Agreement, including, without limitation, any action so taken at BTMUCLF’s request or direction, except direct damages attributable to the Deposit Taker’s gross negligence or willful misconduct. In no event shall Deposit Taker be liable for any (i) losses or delays resulting from acts of God, war, computer malfunction, interruption of communication facilities, labor difficulties or other causes beyond Deposit Taker’s reasonable control, or (ii) for indirect, special, punitive or consequential damages. LRC agrees to indemnify and hold Deposit Taker harmless from and against all costs, damages, claims, judgments, reasonable attorneys’ fees, expenses, obligations and liabilities of every kind and nature (collectively, “ Losses ”) which Deposit Taker may incur, sustain or be required to pay (other than those attributable to Deposit Taker’s gross negligence or willful misconduct) in connection with or arising out of this Agreement or the Deposit Account (including without limitation, the amount of any overdraft created in the Deposit Account resulting from a Chargeback, and to pay to Deposit Taker on demand the amount of all such Losses. Nothing

 

5


in this Section, and no indemnification of Deposit Taker hereunder, shall affect in any way the indemnification obligations of LRC to BTMUCLF under the Pledge Agreement or other Operative Documents. The provisions of this Section shall survive termination of this Agreement.

8. Irrevocable Agreement . LRC acknowledges that the agreements made by it and the authorizations granted by it herein are irrevocable and that the authorizations granted in Section 2 are powers coupled with an interest.

9. Set-off . Deposit Taker waives all of its existing and future rights of set-off and banker’s liens against the Deposit Account and all items (and proceeds thereof) that come into possession of Deposit Taker in connection with the Deposit Account.

10. Miscellaneous . This Agreement is binding upon the parties hereto and their respective successors and assigns (including any trustee of LRC appointed or elected in any action under the Bankruptcy Code) and shall inure to their benefit. Neither LRC nor BTMUCLF may assign their respective rights hereunder unless the prior written consent of the Deposit Taker is obtained. Neither this Agreement nor any provision hereof may be changed, amended, modified or waived, except by an instrument in writing signed by the parties hereto. Any provision of this Agreement that may prove unenforceable under any law or regulation shall not affect the validity of any other provision hereof. This Agreement shall be governed by the laws of the State of New York, without giving effect to the conflicts of laws provisions of such State (including, without limitation, Section 5-1401 of the New York General Secured Obligations Law). LRC hereby irrevocably submits to the jurisdiction of the courts of the U.S. Federal and New York State courts sitting in the Borough of Manhattan, New York and waives any objection to or based upon personal jurisdiction, venue, inconvenient forum or service of process in connection with any action or proceeding arising out of or in connection with this Agreement. LRC hereby irrevocably consents to service of process by first class or certified mail, or recognized courier for which a receipt is available, sent to the address shown in Deposit Taker’s records. This Agreement may be executed in any number of counterparts which together shall constitute one and the same instrument. LRC HEREBY IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE PLEDGE AGREEMENT OR ANY RELATED TRANSACTION.

11. Termination and Resignation . This Agreement may be terminated by agreement of BTMUCLF and LRC upon fifteen (15) days’ prior written notice to Deposit Taker; provided, however, that this Agreement shall terminate immediately upon notice from BTMUCLF that all of LRC’s obligations secured by the Pledge Agreement are satisfied. Deposit Taker may, at any time upon thirty (30) days’ prior written notice to BTMUCLF and LRC, terminate this Agreement and close the Deposit Account; provided, however, that a substitute deposit taker has been appointed for BTMUCLF under and as described in the Pledge Agreement. Upon termination of this Agreement any funds in the Deposit Account shall be subject to the direction of BTMUCLF, including any direction given by BTMUCLF that such funds be wired to another “Deposit Taker” designated for BTMUCLF under and as defined in the Pledge Agreement.

 

6


12. Notices . Unless otherwise specifically provided herein, any notice or other communication required or permitted to be given shall be in writing addressed to the respective party as set forth below and may be personally served, telecopied or sent by overnight courier service and shall be deemed to have been given: (a) if delivered in person, when delivered; (b) if delivered by telecopy, on the date of transmission if transmitted on a Business Day before 4:00 P.M. (New York time) (but only if such telecopied document is also delivered by another method permitted by this Agreement by the next banking business day), or, if not, on the next succeeding Business Day; or (c) if delivered by reputable overnight courier, the banking business day on which such delivery is made by such courier.

Notices shall be addressed as follows:

 

BTMUCLF:    BTMU Capital Leasing & Finance, Inc.
   111 Huntington Avenue
   Boston, Massachusetts 02199
   Attention: Portfolio Servicing
   Telecopy:                                 
Deposit Taker:    The Bank of Tokyo-Mitsubishi UFJ, Ltd.
   Global Markets Division for the Americas
   1251 Avenues of the Americas
   New York, New York 10020-1104
   Attn: Charles Catalano, Director – Institutional Sales Department
   Telecopy:                                 
   Email:                                         
LRC:    Lam Research Corporation
  

4300 Cushing Parkway

Fremont, California 94538

   Attention: Odette Go, Treasurer
   Telecopy:                                 
   Email:                                         

or in any case, to such other address as the party addressed shall have previously designated by written notice to the serving party, given in accordance with this Section.

[signature page follows.]

 

7


Please countersign below to indicate your acceptance of our agreement herein.

 

Very truly yours,

LAM RESEARCH CORPORATION,

a Delaware corporation

By:  

 

Name:  

 

Title:  

 

 

ACCEPTED AND AGREED TO as of this

             day of             ,         

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
By:  

 

Name:  

 

Title:  

 

ACKNOWLEDGED AND AGREED TO as of this
             day of             ,         
BTMU CAPITAL LEASING & FINANCE, INC.,
a Delaware corporation
By:  

 

Name:  

 

Title:  

 


Exhibit B

TO PLEDGE AGREEMENT

DESCRIPTION OF INITIAL PRE-LEASE COLLATERAL

All assets held or to be held in the following custody or subcustody accounts, safekeeping accounts, investment management accounts and/or other account with the Intermediary:

 

Type of Account

  

Account Number

  

Entity/Location

Securities Account    NJT5    State Street Bank and Trust Company
Securities Account    NJTP    State Street Bank and Trust Company
Cash Account       State Street Bank and Trust Company


Exhibit C

TO PLEDGE AGREEMENT

NOTICE OF LRC’S REQUIREMENT OF

DIRECT PAYMENT TO BTMUCLF

BTMU Capital Leasing & Finance, Inc.

111 Huntington Avenue

Boston, Massachusetts 02199

Attention: Portfolio Servicing

 

  Re: Pledge Agreement (Fremont 3E) dated as of December 31, 2013 between Lam Research Corporation and BTMU Capital Leasing & Finance, Inc.

Gentlemen:

Capitalized terms used in this letter are intended to have the meanings assigned to them in the Pledge Agreement (Fremont 3E) referenced above (the “Pledge Agreement” ). This letter constitutes notice to you, as secured party under the Pledge Agreement, that pursuant to subparagraph 5(C) of the Pledge Agreement, LRC requires you to withdraw from the Deposit Account and to retain, as a payment from LRC required by Articles XX, XXI or XXII of the Lease, the following amount:

                     Dollars ($        )

on the following date (which, LRC acknowledges, must be the Base Term Expiration Date):

LRC acknowledges that its right to require such withdrawal is subject to the condition that LRC must give this notice to you at least ten days prior to the date of required withdrawal and payment specified above, and also to the condition that no Event of Default (under and as defined in the Pledge Agreement or as defined in the Lease referenced therein) has occurred and is continuing.

Please remember that the express terms of the Pledge Agreement allow the Deposit Takers to require notice of withdrawal at least seven days before Cash Collateral is to be withdrawn from the Deposit Accounts. Accordingly, you must notify the Deposit Takers seven days prior to the withdrawal of Cash Collateral required by this notice.

 

Lam Research Corporation
By:  

 

Name:  

 

Title:  

 

Exhibit 10.25

 

 

AMENDED AND RESTATED LEASE AGREEMENT

(Fremont 4)

D ATED AS OF D ECEMBER  31, 2013

B ETWEEN

BTMU CAPITAL LEASING & FINANCE, INC.,

AS L ESSOR ,

A ND

LAM RESEARCH CORPORATION,

AS L ESSEE

 

 


TABLE OF CONTENTS

 

         Page  

ARTICLE I DEFINITIONS

     1   

ARTICLE II LEASE OF LEASED PROPERTY; LEASE TERM

     2   

SECTION 2.1.

 

Acceptance and Lease.

     2   

SECTION 2.2.

 

Lease Term.

     2   

ARTICLE III TAXES

     2   

SECTION 3.1.

 

Impositions.

     2   

SECTION 3.2.

 

Contests.

     3   

ARTICLE IV RENT

     3   

SECTION 4.1.

 

Rental Payments.

     3   

SECTION 4.2.

 

Supplemental Rent.

     3   

SECTION 4.3.

 

Method and Amount of Payment.

     3   

SECTION 4.4.

 

Late Payment.

     3   

ARTICLE V NET LEASE

     4   

ARTICLE VI UTILITY CHARGES

     5   

ARTICLE VII CONDITION AND USE OF LEASED PROPERTY

     6   

ARTICLE VIII LIENS; EASEMENTS

     6   

SECTION 8.1.

 

Liens.

     6   

SECTION 8.2.

 

Easements.

     7   

ARTICLE IX MAINTENANCE AND REPAIR; ALTERATIONS AND ADDITIONS

     8   

SECTION 9.1.

 

Maintenance and Repair; Compliance With Law.

     8   

SECTION 9.2.

 

Improvements and Alterations.

     8   

SECTION 9.3.

 

Alterations Subject to Lease.

     9   

SECTION 9.4.

 

Maintenance and Repair Reports.

     10   

SECTION 9.5.

 

Permitted Contests.

     10   

ARTICLE X USE

     11   

SECTION 10.1.

 

Use.

     11   

SECTION 10.2.

 

Trade Compliance.

     11   

ARTICLE X I INSURANCE

     11   

SECTION 11.1.

 

Required Coverages.

     11   

SECTION 11.2.

 

Delivery of Insurance Certificates.

     13   

 

i


TABLE OF CONTENTS

(continued)

 

         Page  

ARTICLE XII ASSIGNMENT AND SUBLEASING

     14   

ARTICLE XIII LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE

     15   

SECTION 13.1.

 

Event of Loss.

     15   

SECTION 13.2.

 

Condemnation.

     16   

SECTION 13.3.

 

Casualty.

     16   

SECTION 13.4.

 

Proceeds.

     17   

SECTION 13.5.

 

Negotiations.

     17   

SECTION 13.6.

 

No Rent Abatement.

     17   

ARTICLE XIV CERTAIN DUTIES AND RESPONSIBILITIES

     17   

ARTICLE XV INSPECTION

     18   

ARTICLE XVI ENVIRONMENTAL MATTERS

     18   

SECTION 16.1.

 

Environmental Matters.

     18   

SECTION 16.2.

 

Notice of Environmental Matters.

     19   

ARTICLE XVII EVENTS OF DEFAULT

     19   

ARTICLE XVIII ENFORCEMENT

     22   

SECTION 18.1.

 

Remedies.

     22   

SECTION 18.2.

 

Proceeds of Sale; Deficiency.

     26   

SECTION 18.3.

 

Waiver of Certain Rights.

     26   

SECTION 18.4.

 

Remedies Cumulative; No Waiver; Consents.

     27   

ARTICLE XIX RIGHT TO CURE

     27   

ARTICLE XX EARLY TERMINATION OPTION; OBLIGATION TO PURCHASE; MID-TERM REMARKETING OPTION

     27   

SECTION 20.1.

 

Early Termination Option.

     27   

SECTION 20.2.

 

Required Purchase.

     28   

SECTION 20.3.

 

Mid-term Remarketing Option.

     28   

ARTICLE XXI END OF TERM OPTIONS

     28   

SECTION 21.1.

 

End of Term Options

     28   

SECTION 21.2.

 

Election of Options.

     29   

ARTICLE XXII RETURN OPTION

     29   

SECTION 22.1.

 

Return Option Procedures.

     29   

 

ii


TABLE OF CONTENTS

(continued)

 

         Page  

SECTION 22.2.

 

Sale.

     31   

SECTION 22.3.

 

Application of Sale Proceeds and Recourse Payments.

     32   

SECTION 22.4.

 

Failure to Sell Leased Property.

     34   

SECTION 22.5.

 

Surrender and Return.

     36   

ARTICLE XXIII MISCELLANEOUS

     37   

SECTION 23.1.

 

Binding Effect; Successors and Assigns; Survival.

     37   

SECTION 23.2.

 

Severability.

     38   

SECTION 23.3.

 

Notices.

     38   

SECTION 23.4.

 

Amendment; Complete Agreements.

     38   

SECTION 23.5.

 

Headings.

     38   

SECTION 23.6.

 

Original Executed Counterpart.

     38   

SECTION 23.7.

 

Governing Law.

     39   

SECTION 23.8.

 

No Joint Venture.

     39   

SECTION 23.9.

 

No Accord and Satisfaction.

     39   

SECTION 23.10.

 

Survival.

     39   

SECTION 23.11.

 

Transfer of Leased Property.

     39   

SECTION 23.12.

 

Enforcement of Certain Warranties.

     40   

SECTION 23.13.

 

Security Interest in Funds.

     40   

SECTION 23.14.

 

Submission to Jurisdiction.

     40   

SECTION 23.15.

 

Jury Trial.

     41   

SECTION 23.16.

 

Payments.

     41   

 

EXHIBITS     
EXHIBIT A    Description of Site

 

iii


AMENDED AND RESTATED LEASE AGREEMENT

(Fremont 4)

THIS AMENDED AND RESTATED LEASE AGREEMENT (FREMONT 4), dated as of December 31, 2013 (as amended, supplemented, or otherwise modified from time to time (this “ Lease ”), is between BTMU CAPITAL LEASING & FINANCE, INC., a Delaware corporation, as Lessor (the “ Lessor ”) and whose principal offices are located at 111 Huntington Avenue, Boston, Massachusetts 02199, and LAM RESEARCH CORPORATION, a Delaware corporation, as Lessee (the “ Lessee ) and whose principal offices are located at 4300 Cushing Parkway, Fremont, California 95438.

WITNESSETH:

Lessee and Lessor are entering into this Lease and the Operative Documents.

A. Subject to the terms and conditions set forth in the Operative Documents, on the Closing Date, Lessor has agreed to acquire the land described on Exhibit A attached hereto (the “ Site ”) and the existing improvements thereon (the “ Existing Improvements ”) and Personal Property used thereon (collectively, the “ Leased Property ”) which Leased Property is subject to that certain Lease Agreement (Fremont/Building #1), dated as of December 21, 2007 (“ Existing Lease Fremont 4 ”), between BNP Paribas Leasing Corporation, a Delaware corporation (the “ Existing Lessor ”), and the Lessee.

B. Existing Lessor has assigned all of its right, title and interest in and to the Existing Lease Fremont 4 and the Leased Property to Lessor.

C. The Lessee and the Lessor desire to continue to lease the Leased Property and to amend and restate the Existing Lease in accordance with the terms and conditions set forth below.

NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, hereby agree that the Existing Lease is hereby amended and restated in its entirety as follows:

ARTICLE I

DEFINITIONS

For all purposes hereof, the capitalized terms used herein and not otherwise defined shall have the meanings assigned thereto in Appendix I to that certain Participation Agreement dated as of even date herewith, between the Lessee and the Lessor (as the same may be amended, modified, restated or supplemented from time to time, the “ Participation Agreement ”).


ARTICLE II

LEASE OF LEASED PROPERTY; LEASE TERM

SECTION 2.1. Acceptance and Lease.

The Lessor, subject to the satisfaction or waiver of the conditions set forth in Section 3.1 of the Participation Agreement, hereby agrees to lease all of the Leased Property (the location of which is more particularly described on Exhibit A hereto) to the Lessee hereunder and the Lessee hereby agrees, expressly for the direct benefit of the Lessor, to lease from the Lessor for the Lease Term, all of the Leased Property. Without limiting the generality of the foregoing, Lessee acknowledges that the leasehold estate conveyed by this Lease and Lessee’s rights hereunder are expressly made subject and subordinate to the terms and conditions of the matters listed in Schedule B to the Title Policy and all other Permitted Liens, and any other Liens not constituting Lessor Liens.

Subject to Articles XII and XVIII hereof, the Lessor will not lease nor otherwise make the Leased Property, in whole or in part, available to any Person other than the Lessee and its permitted successors, assigns and sublessees during the Lease Term, and (without derogating in any way from the Lessor’s rights under Article XV hereof) during the Lease Term the Lessee shall have unimpeded physical control of the Leased Property notwithstanding the Lessor’s rights to inspect the Leased Property under Article XV.

SECTION 2.2. Lease Term.

Unless earlier terminated, the term of this Lease for the Leased Property shall consist of a base lease term (the “ Base Term ” or the “ Lease Term ”) which shall commence on and including the Closing Date (such day, the “ Base Term Commencement Date ”) and ending on December 31, 2020.

ARTICLE III

TAXES

SECTION 3.1. Impositions.

During the Lease Term, Lessee agrees to pay prior to delinquency without penalty or interest all Taxes imposed upon or levied against the Leased Property or any part thereof or interest therein consistent with Section 7.2 of the Participation Agreement. The Site consists of one or more separate tax lots for real property tax assessment purposes. Any Tax relating to a fiscal period of any taxing Authority falling partially within and partially outside the Lease Term shall be apportioned and adjusted between Lessor and Lessee. Lessee covenants to furnish Lessor, upon Lessor’s request, within forty-five (45) days after the last date when any Tax must be paid by Lessee, official receipts of the appropriate taxing Authority or other proof reasonably satisfactory to Lessor evidencing the payment thereof.

 

2


SECTION 3.2. Contests.

Lessee shall have the right to contest any Tax in accordance with Section 7.2(b) of the Participation Agreement.

ARTICLE IV

RENT

SECTION 4.1. Rental Payments.

Commencing on the first Payment Date following the Base Term Commencement Date, the Lessee shall pay to the Lessor Basic Rent, without offset or deduction, (i) on each Payment Date, (ii) on the Return Date, and (iii) on any date on which this Lease terminates or upon demand following an Event of Default pursuant to Article XVII.

SECTION 4.2. Supplemental Rent.

The Lessee shall pay to the Lessor, or to whomever shall be entitled thereto as expressly provided herein or in any other Operative Document (and the Lessor hereby directs the Lessee, on behalf of the Lessor, to so pay any such other Person), any and all Supplemental Rent promptly as the same shall become due and payable and, in the event of any failure on the part of the Lessee to pay any Supplemental Rent, the Lessor shall have all rights, powers and remedies provided for herein or by law or in equity or otherwise in the case of nonpayment of Basic Rent. Lessee hereby reaffirms that its obligation to pay Supplemental Rent shall include the payment of any and all Additional Costs. The expiration or other termination of the Lessee’s obligations to pay Basic Rent hereunder shall not limit or modify the obligations of the Lessee with respect to Supplemental Rent.

SECTION 4.3. Method and Amount of Payment.

Basic Rent and Supplemental Rent shall be paid by wire transfer by the Lessee to the Lessor (or, in the case of Supplemental Rent, to such Person as may be entitled thereto) at such place as the Lessor (or such other Person) shall specify in writing to the Lessee pursuant to Schedule II to the Participation Agreement. Each payment of Rent shall be made by the Lessee prior to 11:00 A.M. New York time (and payments made after such time shall be deemed to have been made on the next day) at the place of payment in funds consisting of Dollars which shall be immediately available on the scheduled date when such payment shall be due unless the scheduled date shall not be a Business Day, in which case such payment shall be due and made on the next succeeding Business Day. The provisions of the foregoing sentence of this Section 4.3 shall be applicable only to Basic Rent and to Supplemental Rent payable to, or on behalf of or for the account of, the Lessor and any other Indemnitee.

SECTION 4.4. Late Payment.

If any Basic Rent shall not be paid within three (3) Business Days of the due date applicable thereto, the Lessee shall pay to the Lessor, or if any Supplemental Rent payable to or on behalf or for the account of the Lessor or other Indemnitee is not paid when due, the Lessee

 

3


shall pay to whomever shall be entitled thereto, in each case as Supplemental Rent, interest at the Overdue Rate (to the maximum extent permitted by law) on such overdue amount from and including the due date thereof (without regard to any applicable grace period) to but excluding the Business Day of payment thereof.

ARTICLE V

NET LEASE

This Lease shall constitute a net lease and, notwithstanding any other provision of this Lease, it is intended that Basic Rent, Supplemental Rent, the Lease Balance and all other amounts due and payable under the Operative Documents shall be paid without counterclaim, setoff, deduction or defense of any kind and without abatement, suspension, deferment, diminution or reduction of any kind, and the Lessee’s obligation to pay all such amounts throughout the Lease Term is absolute and unconditional. The obligations and liabilities of the Lessee hereunder shall, to the fullest extent permitted by Applicable Laws, in no way be released, discharged or otherwise affected for any reason (other than the indefeasible payment or performance in full of such liability or obligation) including: (a) any defect in the condition, merchantability, design, construction, quality or fitness for use of the Leased Property or any portion thereof, or any failure of the Leased Property or any portion thereof to comply with all Applicable Laws including any inability to occupy or use the Leased Property or any portion thereof by reason of such non-compliance; (b) any damage to, abandonment, loss, contamination of or Release from or destruction of or any requisition or taking of the Leased Property or any portion thereof including eviction; (c) any restriction, prevention or curtailment of or interference with any use of the Leased Property or any portion thereof, including eviction; (d) any defect in title to or rights to the Leased Property or any portion thereof or any Lien on such title or rights or on the Leased Property or any portion thereof; (e) any change, waiver, extension, indulgence or other action or omission or breach in respect of any obligation or liability of or by the Lessor; (f) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceedings relating to the Lessee, the Lessor or any other Person, or any action taken with respect to this Lease by any trustee or receiver of the Lessee, the Lessor or any other Person, or by any court, in any such proceeding; (g) any claim that the Lessee has or might have against any Person, including the Lessor or any Indemnitee arising from any of the circumstances set forth in this sentence (but will not constitute a waiver of such claim); (h) any failure on the part of the Lessor to perform or comply with any of the terms of this Lease, any other Operative Document or of any other agreement whether or not related to the Overall Transaction; (i) any invalidity or unenforceability or disaffirmance against or by the Lessee of this Lease or any provision hereof or any of the other Operative Documents or any provision of any thereof; (j) the impossibility of performance by the Lessee, the Lessor or both; (k) any action by any court, administrative agency or other Authority; (l) the construction of any Alterations; (m) the failure of the Lessee to achieve any accounting or tax benefits or the characterization of the transaction intended by Section 2.12 of the Participation Agreement; or (n) any other occurrence whatsoever, whether similar or dissimilar to the foregoing, whether or not the Lessee shall have notice or knowledge of any of the foregoing. Except as specifically set forth in Article XIII or Section 20.1 of this Lease, this Lease shall be noncancellable by the Lessee for any reason whatsoever and the Lessee, to the fullest extent permitted by Applicable Laws, waives all rights now or hereafter conferred by statute or otherwise to quit, terminate or surrender this

 

4


Lease, or to any diminution, abatement or reduction of Rent payable by the Lessee hereunder. If for any reason whatsoever this Lease shall be terminated or amended in whole or in part by operation of law or otherwise, except as expressly provided in Article XIII or Section 20.1 of this Lease, the Lessee shall, unless prohibited by Applicable Laws, pay to the Lessor (or, in the case of Supplemental Rent, to whomever shall be entitled thereto) a compensation in an amount equal to each Rent payment (including the Lease Balance and any other amount due and payable under any Operative Documents) at the time and in the manner that such payment would have become due and payable under the terms of this Lease if it had not been terminated or amended in whole or in part. Each payment of Rent including any payment of the Lease Balance and Break Even Price made by the Lessee hereunder shall be final and, absent manifest error in the computation of the amount thereof, the Lessee shall not seek or have any right to recover all or any part of such payment from the Lessor or any party to any agreements related thereto for any reason whatsoever. Lessee assumes the sole responsibility for the condition, use, operation, maintenance, and management of the Leased Property and the Lessor shall have no responsibility in respect thereof and shall have no liability for damage to the Leased Property or the property relating thereto of the Lessee or any subtenant of the Lessee on any account or for any reason whatsoever. Without affecting the Lessee’s obligation to pay Basic Rent, Supplemental Rent, the Lease Balance and all other amounts due and payable under the Operative Documents or to perform its obligations under the Operative Documents, the Lessee may, notwithstanding any other provision of the Operative Documents (other than Section 8.11 of the Participation Agreement), seek damages of any kind or any other remedy at law or equity against the Lessor for such willful misconduct or gross negligence or negligence in the handling of funds or for a breach by the Lessor of its obligations under this Lease or the other Operative Documents.

ARTICLE VI

UTILITY CHARGES

During the Lease Term the Lessee shall pay or cause to be paid all development and improvement charges and all charges for electricity, power, gas, oil, water, telephone, sanitary sewer service and all other rents, utilities or public dues used in or on the Improvements or the Site during the Lease Term. Lessee shall be entitled to receive any credit or refund with respect to any utility charge or public dues paid by the Lessee and the amount of any credit or refund received by the Lessor on account of any utility charges paid by the Lessee, net of the costs and expenses reasonably incurred by the Lessor in obtaining such credit or refund, which amount shall be promptly paid over to the Lessee. All charges for utilities imposed or public dues with respect to the Improvements and the Site for a billing period during which this Lease expires or terminates (except pursuant to Article XX or Section 21.1(a), in which case the Lessee shall be solely responsible for all such charges) shall be adjusted and prorated on a daily basis between the Lessee and any purchaser of the Leased Property, and each party shall pay or reimburse the other for each party’s pro rata share thereof; provided, that in no event shall the Lessor have any liability therefor.

 

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ARTICLE VII

CONDITION AND USE OF LEASED PROPERTY

LESSEE ACKNOWLEDGES AND AGREES THAT IT IS LEASING THE LEASED PROPERTY “AS IS” IN ITS PRESENT CONDITION, SUBJECT TO (A) ANY RIGHTS OF ANY PARTIES IN POSSESSION THEREOF OR OF THE SITE, (B) THE STATE OF THE TITLE THERETO OR TO THE SITE EXISTING AT THE TIME THE LESSOR ACQUIRED ITS INTEREST IN THE LEASED PROPERTY, (C) ANY STATE OF FACTS WHICH AN ACCURATE SURVEY OR PHYSICAL INSPECTION MIGHT SHOW (INCLUDING ANY SURVEY DELIVERED ON OR PRIOR TO THE CLOSING DATE), (D) ALL APPLICABLE LAWS, AND (E) ANY VIOLATIONS OF APPLICABLE LAWS WHICH MAY EXIST AT THE COMMENCEMENT OF THE LEASE TERM. LESSEE HAS EXAMINED THE LEASED PROPERTY AND (INSOFAR AS THE LESSOR IS CONCERNED) HAS FOUND THE SAME TO BE SATISFACTORY. WITHOUT LIMITING THE SPECIFIC REPRESENTATIONS AND WARRANTIES IN ARTICLE IV OF THE PARTICIPATION AGREEMENT, THE LESSOR HAS NOT MADE NOR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, NOR SHALL BE DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO THE TITLE TO THE LEASED PROPERTY OR THE SITE OR TO THE VALUE, MERCHANTABILITY, HABITABILITY, CONDITION, OR FITNESS FOR USE OF THE LEASED PROPERTY OR THE SITE, OR ANY PART THEREOF, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASED PROPERTY OR THE SITE, OR ANY PART THEREOF, AND THE LESSOR SHALL NOT BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR THE FAILURE OF THE LEASED PROPERTY OR ANY PORTION THEREOF, TO COMPLY WITH ANY APPLICABLE LAWS, except that the Lessor hereby represents and warrants that as of the date of this Lease, the Leased Property is free of Lessor Liens. The Lessee, having been afforded full opportunity to inspect the Leased Property, is satisfied with the results of its inspections and is entering into this Lease solely on the basis of the results of its own inspections, and all risks incident to the matters discussed in the preceding sentence, as between the Lessor, on the one hand, and the Lessee, on the other, are to be borne by the Lessee. The provisions of this Article VII have been negotiated, and, except to the extent otherwise expressly stated, the foregoing provisions are intended to be a complete exclusion and negation of any representations or warranties by the Lessor, express or implied, with respect to the Leased Property (or any interest therein) that may arise pursuant to any law now or hereafter in effect or otherwise.

ARTICLE VIII

LIENS; EASEMENTS

SECTION 8.1. Liens.

During the Lease Term and subject to Lessee’s right to engage in Permitted Contests in accordance with Section 9.5, the Lessee will not directly or indirectly create, incur, assume or suffer to exist any Lien (other than Permitted Liens) on or with respect to any portion of the Leased Property or any portion thereof or the Lessor’s interest therein. Lessee, at its own expense, will promptly pay, satisfy and otherwise take such actions as may be necessary to keep

 

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the Leased Property free and clear of, and duly to discharge, eliminate or bond in a manner reasonably satisfactory to the Lessor, any such Lien (other than Permitted Liens) if the same shall arise at any time.

SECTION 8.2. Easements.

Notwithstanding Section 8.1, at the request of Lessee, Lessor shall, from time to time during the Lease Term and upon reasonable advance written notice from Lessee and receipt of the materials specified below, consent to and join in any (i) grant of easements, licenses, rights of way and other rights in the nature of easements, including utility easements which in each case facilitate Lessee’s use, development and operation of the Leased Property, (ii) release or termination of easements, licenses, rights of way or other rights in the nature of easements which releases and terminations are for the benefit of the Site or the Improvements or any portion thereof, (iii) dedication or transfer of portions of the Site, not improved with a building, for road, highway or other public purposes, provided the same are for the benefit of the Site or Improvements, (iv) execution of agreements for ingress and egress and amendments to any covenants and restrictions affecting the Site or Improvements or any portion thereof, and (v) request to any Authority for platting or subdivision or replatting or resubdivision approval with respect to the Site or any portion thereof or any parcel of land of which the Site or any portion thereof forms a part or a request for any variance from zoning or other governmental requirements, provided that :

(a) any such action shall be at the sole cost and expense of Lessee and Lessee shall pay all reasonable out-of-pocket costs of the Lessor in connection therewith (including the reasonable fees of attorneys, architects, engineers, planners, appraisers and other professionals reasonably retained by the Lessor in connection with any such action);

(b) Lessee shall have delivered to the Lessor a certificate of a Responsible Officer of Lessee stating that:

(i) such action will not cause the Leased Property, the Site or the Improvements or any portion thereof to fail to comply in any material respect with the provisions of the Lease or any other Operative Documents, or in any material respect with Applicable Laws; and

(ii) such action will not materially reduce the Fair Market Value, utility or useful life of the Leased Property, the Site or the Improvements or Lessor’s interest therein;

(c) in the case of any release or conveyance, if the Lessor so reasonably requests, the Lessee will cause to be issued and delivered to the Lessor by the Title Insurance Company endorsements to the Title Policies (to the extent available) pursuant to which the Title Insurance Company agrees that its liability for the payment of any loss or damage under the terms and provisions of the Title Policies will not be affected by reason of the fact that a portion of the real property referred to in Schedule A of the Title Policies has been released or conveyed by Lessor; and

(d) there shall be no abatement of Rent as a result thereof.

 

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ARTICLE IX

MAINTENANCE AND REPAIR; ALTERATIONS AND ADDITIONS

SECTION 9.1. Maintenance and Repair; Compliance With Law.

At all times during the Lease Term, the Lessee shall (a) maintain the Improvements and the Site in good operating condition and repair, subject to ordinary wear and tear, and in any event in a manner consistent with other similar facilities or buildings owned or leased by the Lessee and its Subsidiaries; (b) subject to Section 9.5, maintain the Improvements and the Site in accordance with all Applicable Laws (including all Environmental Laws) in all material respects, whether or not such maintenance requires structural modifications; (c) maintain the Improvements and the Site in such a way that the Improvements and the Site shall not constitute a danger to persons or things; (d) comply in all material respects with the Insurance Requirements which are in effect at any time with respect to the Leased Property or any part thereof; (e) use the Improvements and the Site only in accordance with Article X; (f) make all necessary or appropriate repairs, replacements and renewals of the Improvements and the Site or any part thereof which may be required to keep the Improvements and the Site in the condition required by the preceding clauses (a) through (e), whether interior or exterior, structural or nonstructural, ordinary or extraordinary, foreseen or unforeseen, and including repairs, replacements and renewals that would constitute capital expenditures under GAAP if incurred by an owner of property; and (g) procure, maintain and comply in all material respects with all licenses, permits, orders, approvals, consents and other authorizations required for the construction, use, maintenance and operation of the Improvements and the Site. The Lessee waives any right that it may now have or hereafter acquire to (x) require the Lessor to maintain, repair, replace, alter, remove or rebuild all or any part of the Improvements or the Site or (y) make repairs at the expense of the Lessor pursuant to any Applicable Laws or other agreements.

SECTION 9.2. Improvements and Alterations.

(a) The Lessee, at the Lessee’s own cost and expense, (i) shall make alterations, renovations, repairs, improvements and additions to the Leased Property or any part thereof and substitutions and replacements therefor (collectively, “ Alterations ”) which are (A) necessary to repair or maintain the Improvements or the Site in the condition required by Section 9.1 or (B) necessary or advisable to restore the Improvements and the Site to its condition existing prior to a Casualty or Condemnation to the extent required pursuant to Article XIII, and (ii) so long as no Material Default or Event of Default has occurred and is continuing, may undertake Alterations on the Leased Property so long as such Alterations comply in all material respects with Applicable Laws and are consistent and comply with Section 9.1 and subsection (b) of this Section 9.2.

(b) The making of any Alterations pursuant to subsection (a)(i) above of this Section 9.2 must be in compliance with the following requirements:

The Lessee shall not make any Alterations in violation of the terms of any restriction, easement, condition, covenant or other similar matter affecting title to or binding on the Improvements or the Site.

 

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(i) No Alterations shall be undertaken until the Lessee shall have procured and paid for, so far as the same may be required from time to time, all permits and authorizations relating to such Alterations of all municipal and other Authorities having jurisdiction over the Improvements or the Site. Lessor, at the Lessee’s expense, shall join in the application for any such permit or authorization and execute and deliver any document in connection therewith, whenever such joinder is necessary or advisable; provided that, however, such joinder shall not constitute or be deemed to constitute, any assumption or responsibility or liability whatsoever.

(ii) The Alterations shall be completed in a good and workmanlike manner and in compliance in all material respects with all Applicable Laws then in effect and with the Insurance Requirements.

(iii) All Alterations shall, when completed, be of such a character as to not materially diminish (A) the utility of the Improvements as a corporate office complex including a corporate office building and any uses ancillary thereto, (B) the then current Fair Market Value as determined by reference to the Appraisal, or (C) the Fair Market Value as determined by reference to the Appraisal as of the scheduled expiration date of the Lease Term.

(iv) The Lessee shall have made adequate arrangements for payment of the cost of all Alterations when due so that the Improvements and the Site shall at all times be free of Liens for labor and materials supplied or claimed to have been supplied to the Improvements or the Site, other than Permitted Liens; provided, that the Lessee shall have the right to engage in Permitted Contests in accordance with Section 9.5.

(v) The Alterations must be located solely on the Site.

SECTION 9.3. Alterations Subject to Lease.

The following Alterations without further act shall be deemed to constitute a part of the Leased Property and be subject to this Lease:

(a) Alterations that are in replacement of or in substitution for a portion of the Improvements;

(b) Alterations that are required to be made pursuant to the terms of Section 9.1 or 9.2(a)(i) hereof; or

(c) Alterations that are Non-severable or immovable.

To the extent any Alterations are deemed to constitute part of the Leased Property pursuant to the preceding sentence, the Lessee hereby acknowledges and agrees that such Alterations will become upon installation property of the Lessor. The Lessee will, at the Lessor’s request, execute and deliver any documents reasonably necessary to evidence or cause the vesting of such interests in and to such Alterations to the Lessor.

 

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If such Alterations are not within any of the categories set forth in clauses (a) through (c) of this Section 9.3 and have not become property of the Lessor in accordance therewith, then such Alterations shall remain the sole property of the Lessee and such Alterations shall not be deemed to be Alterations which are part of the Leased Property. All such Alterations not constituting part of the Leased Property may, so long as no Event of Default is continuing, be removed at any time by the Lessee other than Alterations the removal of which would result in a violation of Applicable Laws. The Lessee shall at its expense prior to the Lease Expiration Date repair any damage to the Improvements or the Site caused by the removal of such Alterations. Lessor (or the purchaser of the Leased Property if the Lessee elects the Return Option or in connection with a sale pursuant to Section 18.1) may purchase from the Lessee any such Alterations (if not already owned by the Lessor) that the Lessee intends to remove from the Improvements or the Site prior to the Lease Expiration Date, which purchase shall be at the Fair Market Value of such Alterations as determined by the Appraiser at the time of such purchase.

SECTION 9.4. Maintenance and Repair Reports.

During the Lease Term, the Lessee shall keep maintenance and repair reports in sufficient detail, on the same basis as records are kept for similar properties owned or leased by the Lessee or its Subsidiaries, to indicate the nature and date of major work done. Such reports shall be kept on file by the Lessee at its offices during the Lease Term, and shall be made available at the Lessee’s office to the Lessor upon reasonable request.

SECTION 9.5. Permitted Contests.

If, to the extent and for so long as (a) a contest of the legality, validity or applicability to the Improvements or the Site or any interest therein of, or the operation, use or maintenance thereof by the Lessee of (i) any Applicable Laws, (ii) any term or condition of, or any revocation or amendment of, or other proceeding relating to, any Governmental Action, or (iii) any Lien or Tax shall be made in good faith, by appropriate proceedings initiated timely and diligently prosecuted, by the Lessee or (b) compliance with such Applicable Laws, Governmental Action, Lien or Tax shall have been excused or exempted by a valid nonconforming use permit, waiver, extension or forbearance, the Lessee shall not be required to comply with such Applicable Laws, Governmental Action, Lien or Tax but only if and so long as any such contest shall constitute a Permitted Contest.

Lessor will not be required to join in any Permitted Contest pursuant to this Section 9.5 unless a provision of any Applicable Laws requires, or, in the good faith opinion of the Lessee, it is helpful to the Lessee that such proceedings be brought by or in the name of the Lessor; and in that event, the Lessor will join in the proceedings or permit them or any part thereof to be brought in its name if and so long as (i) no Event of Default is continuing, (ii) the Lessee has not elected the Return Option, and (iii) the Lessee pays all related out-of-pocket expenses, and the Lessee shall be deemed to have acknowledged and agreed that the Lessor is indemnified therefor pursuant to Section 7.1 of the Participation Agreement.

 

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ARTICLE X

USE

SECTION 10.1. Use.

The Site on which the Improvements are located shall be used solely for the purposes of a corporate office complex including a corporate office building and any uses ancillary thereto. Lessee shall not use the Leased Property or any portion thereof for any purpose or in any manner that would diminish (A) the utility of the Improvements as a corporate office complex including a corporate office building and any uses ancillary thereto, (B) the then current Fair Market Value as determined by reference to the Appraisal, or (C) the Fair Market Value as determined by reference to the Appraisal as of the scheduled expiration date of the Lease Term. Lessee shall use the Leased Property in compliance in all material respects with (a) any Applicable Laws (including Environmental Laws), except to the extent permitted by Section 9.5, (b) any Insurance Requirements, and (c) all of the Operative Documents. Lessee shall pay, or cause to be paid, all charges and costs required in connection with the use of the Leased Property in accordance with this Lease and the Participation Agreement. Lessee shall not commit or permit any intentional waste of the Leased Property or any material part thereof.

SECTION 10.2. Trade Compliance.

Lessee shall comply with the Trading with the Enemy Act, as amended, and all of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended), federal embargo laws and regulations, and the USA PATRIOT Act in the conduct of all of its activities, including the following: (i) the use, assignment, or sublease of Site or the Improvements by Prohibited Persons; and (ii) the export of any products manufactured at the Improvements to any destination or Prohibited Person.

ARTICLE XI

INSURANCE

SECTION 11.1. Required Coverages.

During the Lease Term, the Lessee will provide or cause to be provided insurance with respect to the Improvements and the Site of a character usually obtained by the Lessee against loss or damage of the kinds and in the amounts customarily insured against by the Lessee with respect to similar properties, and carry such other insurance as is usually carried by the Lessee with respect to similar properties; provided, that in any event the Lessee will maintain:

(a) Comprehensive General Liability Insurance . Lessee will maintain a comprehensive general liability insurance policy on an occurrence basis, including contractual liability and pollution liability insurance for sudden and accidental contamination occurring on, in or about the Improvements or the Site with a combined single limit against claims for third-party bodily injury, including death and third-party property damage in an amount at least equal to $25,000,000 per occurrence and $25,000,000 in the aggregate, which may be a blanket policy. Such coverage may be subject to deductibles or self-insurance up to an amount that is customarily carried by the Lessee with respect to similar property. Such liability insurance shall

 

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name the Lessor as an additional insured and the Lessor shall continue to be named as an additional insured and such policy shall remain in effect until at least the third anniversary of the end of the Lease Term.

(b) Builder’s Risk Insurance . At any other time in connection with any construction of or Alteration to any Improvements, the Lessee shall arrange, on behalf of the Lessor and all contractors, to obtain and keep in force an all-risk builder’s risk insurance with respect to the Improvements and the construction of such Alterations or Improvements insuring the Lessor’s interest in the Improvements and the construction of such Alterations or Improvements including resulting damage from collapse, coverage for fire, hurricanes, flood and earthquakes and coverage against damage or loss caused by machinery accidents and operational and performance testing and start-up, with extended coverage, in an amount not less than the full replacement cost of the insured building (without deduction for depreciation). Such coverage shall provide (1) coverage for insuring the buildings, non-temporary structures, machinery, equipment (exclusive of manufacturing and laboratory equipment), facilities, fixtures, supplies and other property constituting part of the Leased Properties including but not limited to boiler and machinery insurance covering pressure vessels, air tanks, boilers, machinery, pressure piping, heating, ventilation and air conditioning equipment, and elevator and escalator equipment, (2) inland transit coverage from designated storage facilities, (3) off-site (within 1000 feet of the insured Improvements) coverage with sublimits sufficient to insure the full replacement value of any equipment, supplies and materials not stored at the Land, (4) removal of debris, (5) increased cost of construction, and (6) coverage for foundations and other property below the surface of the ground, but the interest of contractors, subcontractors and agents in insured property during construction at the insured location to the extent of Lessee’s legal liability for insured physical loss or damage to such property. Such coverage shall (x) not be subject to any self-insurance and shall be subject to a deductible of no more than $50,000 per occurrence except for (i) $100,000 per occurrence for water damage, (ii) $1,000,000 per occurrence for earthquake damage and (iii) $500,000 per occurrence for flood damage, and (y) be in such form and amounts and covering such risks as were approved by the Lessor on the Closing Date. Lessee shall promptly deliver all reports or information to the appropriate recipient which may be required under such policy or policies in order to ensure that the coverage provided with respect to the construction of such Alterations or Improvements is in an amount at least equal to the aggregate Advances funded under the Operative Documents for the construction of such Alterations or Improvements.

(c) Property Insurance . During the Base Term, Lessee will maintain all-risk insurance (including builder’s risk insurance including coverage for fire, hurricanes, flood and earthquakes and coverage against damage or loss caused by machinery accidents and operational and performance testing and start-up) against loss or damage covering the Leased Property or any portion thereof against such risks customarily maintained by the Lessee with respect to similar properties in an amount not less than the replacement cost of the Improvements, including any costs that may be required to cause the Leased Property to be reconstructed to comply with then current Applicable Laws. Such property insurance coverage may be subject to deductibles or self-insurance up to an amount that is customarily carried by the Lessee with respect to similar property. Such property insurance shall name each of the Lessor as sole loss payee and as an additional insured.

 

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(d) Other Insurance . Insurance shall not cover any terrorism or war risks unless the Lessee carries insurance for such risks generally on similar property it owns or leases.

Insurance provided pursuant to this Section 11.1 (other than permitted self-insurance) shall be written by reputable insurance companies that are financially sound and solvent with a rating of at least “A-” by A.M. Best’s or Standard and Poor’s or by other insurers approved in writing by the Lessor (including consistent with the Lessee’s past practices, insurance companies affiliated with the Lessee). Each policy referred to in this Section 11.1 shall provide that: (i) it will not be canceled or allowed to lapse without renewal, except after not less than thirty (30) days’ prior written notice to the Lessor or ten (10) days’ prior notice to the Lessor in the case of non-payment of premium; (ii) other than standard policy exclusions, there is no provision in the policies where the interests of the Lessor shall be invalidated by any act or negligence of or breach of warranty by the Lessee or any Person having an interest in the Improvements or the Site; (iii) such insurance is primary and non-contributory with respect to any other insurance carried by or available to the Lessor; (iv) the insurer shall waive customary rights of subrogation, setoff, counterclaim, or other deduction, whether by attachment or otherwise, against any additional insured or loss payee; (v) such general liability policy and pollution legal liability policy shall contain a severability clause providing for coverage of the Lessor as if a separate policy had been issued to the Lessor; (vi) the Lessee will notify the Lessor promptly of any policy cancellation, reduction in policy limits, lapse, modification or amendment, and (vii) the insurer shall not allow for unpaid premiums to be paid by the Lessor.

Except as expressly set forth herein, the insurance required to be maintained by the Lessee under this Section 11.1 may be subject to such deductible amounts or periods, as applicable as is consistent with the Lessee’s practice for other properties similar to the Leased Properties owned or leased by the Lessee, and may be carried under blanket policies maintained by or on behalf of the Lessee so long as such policies otherwise comply with the provisions of this Section 11.

SECTION 11.2. Delivery of Insurance Certificates.

Pursuant to Section 3.1(c) of the Participation Agreement, the Lessee shall deliver to the Lessor certificates of insurance reasonably satisfactory to the Lessor evidencing the existence of all insurance required to be maintained hereunder and setting forth the respective coverages, limits of liability, carrier, policy number and period of coverage. Thereafter, throughout the Lease Term, at the time each of the Lessee’s insurance policies is renewed (but in no event less frequently than once every twelve (12) months) or upon written request by the Lessor during the continuance of an Event of Default, the Lessee shall deliver to the Lessor certificates of insurance evidencing that all insurance required by Section 11.1 to be maintained by the Lessee with respect to the Leased Property is in effect.

Lessee agrees that nothing in this Article XI shall prohibit the Lessor from maintaining its own insurance coverage, at its own expense, which coverage shall not reduce the obligations of the Lessee under this Article XI; provided, however, that no such insurance shall be maintained if its maintenance would prevent the Lessee from maintaining insurance as to the Improvements and the Site with insurers when required to do so herein.

 

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ARTICLE XII

ASSIGNMENT AND SUBLEASING

During the Lease Term, the Lessee may assign, sublease or transfer to any Person, at any time, in whole or in part, its right, title or interest in, to or under this Lease or any portion of the Leased Property without the prior written consent of the Lessor so long as (v) any such assignment, sublease or transfer would not subject the Lessor to a violation of laws or regulations applicable to the Lessor including those promulgated by OFAC, (w) no Event of Default shall have occurred and be continuing or, after giving effect to such assignment, sublease or transfer, would exist, (x) any such sublease is expressly subject and subordinate to this Lease, (y) Lessee remains liable for all obligations under this Lease after giving effect to any such assignment, sublease or transfer, and (z) Lessor retains all of its interests in and benefits of the Cash Collateral and receives prior certification thereof from the Lessee and such other evidence thereof as the Lessor may reasonably request. Unless and until Lessee has exercised the Early Termination Option or the Purchase Option, no sublease may have a term that extends beyond the Base Term Expiration Date. In all cases, Lessee will promptly provide Lessor copies of each such assignment, sublease or transfer.

No sublease will discharge or diminish any of the Lessee’s obligations hereunder and the Lessee shall remain directly and primarily liable under the Lease with respect to the Leased Property and the Operative Documents to which it is a party. Each sublease permitted hereby shall be made and shall expressly provide in writing that it is subject and subordinate to this Lease and the rights of the Lessor hereunder, shall expressly provide for the surrender of the Leased Property by the sublessee at the election of the Lessor after an Event of Default, shall provide that such provisions may be directly enforced by the Lessor and shall provide that such sublessee expressly agrees to comply with the use restrictions set forth in Article X hereof.

Notwithstanding the first paragraph of this Article XII, Lessee may not assign or transfer its rights and obligations under this Lease and the other Operative Documents unless (a) on the effective date of any such assignment and transfer, no Event of Default exists, (b) the parties enter into an assignment agreement in form and substance reasonably satisfactory to the Lessor, (c) all filings of or in respect of any such assignment and transfer necessary to protect the rights of the Lessor in the Leased Property and the other Operative Documents are made in a timely fashion, (d) without limiting any provisions of this Article XII, any such assignment and transfer shall include an appropriate provision for the operation, maintenance and insurance of the Leased Property in accordance with the terms hereof, (e) the Lessor shall have received opinions of counsel with respect thereto and such other matters as the Lessor may reasonably request, (f) such assignment and transfer will not result in a Material Adverse Effect, (g) such assignment and transfer will not result in the imposition of any unindemnified Taxes, (h) the Lessor shall have received such other documents and instruments and the Lessee shall take such further acts as the Lessor may reasonably request to evidence and facilitate such assignment and transfer, provided that no such document or instrument shall increase Lessee’s obligations or diminish Lessee’s rights under the Operative Documents or otherwise, and (i) such assignment and transfer will not, with respect to the Lessor, violate the use restrictions set forth in Article X hereof or Applicable Laws and provided, further that, Lessee shall provide to the Lessor not less than thirty (30) days’ prior written notice of such assignment or transfer, such notice to identify

 

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the assignee or transferee. No such assignment and transfer will diminish or discharge any of the Lessee’s obligations under this Lease or the other Operative Documents.

ARTICLE XIII

LOSS, DESTRUCTION, CONDEMNATION OR DAMAGE

SECTION 13.1. Event of Loss.

(a) Event of Loss During Base Term .

(i) Event of Taking . If an Event of Taking shall occur during the Base Term, the Lessee shall give the Lessor prompt written notice of such occurrence and the date thereof and the Lessee shall on the next succeeding Payment Date (the “ Next Date ”) after such Event of Taking shall have occurred or, if such Event of Taking shall have occurred within ten (10) Business Days preceding a Payment Date, then on the next succeeding Payment Date after such Next Date shall have occurred, terminate this Lease and, as compensation for such Event of Taking, pay to the Lessor on such Payment Date the Break Even Price.

(ii) Event of Loss. If an Event of Loss (other than an Event of Taking) shall occur during the Base Term, the Lessee shall give the Lessor prompt written notice of such occurrence and the date thereof which notice shall contain an election by the Lessee to either (A) purchase the Leased Property from the Lessor on the Next Date after such Event of Loss shall have occurred or, if such Event of Loss shall have occurred within ten (10) Business Days preceding a Payment Date, then on the next succeeding Payment Date after such Next Date shall have occurred, at a purchase price equal to the Break Even Price of the Leased Property (and if the Lessee makes such election the Break Even Price shall become due and payable and the Lessee shall purchase the Leased Property on such Payment Date), or (B) provided no Material Default or Event of Default shall have occurred and be continuing and rebuilding of the Improvements is capable of being completed prior to the end of the Lease Term (as certified in writing by a construction consultant appointed by Lessee and acceptable to the Lessor), rebuild the Improvements and continue the Lease. If the Lessee elects to rebuild the Improvements, the Lessee shall rebuild the Improvements to the condition required to be maintained pursuant to Section 9.1 and so as not to diminish (A) the utility of the Improvements as a corporate office complex including a corporate office building, and any uses ancillary thereto, (B) the then current Fair Market Value as determined by reference to the Appraisal, or (C) the Fair Market Value as determined by reference to the Appraisal as of the scheduled expiration date of the Lease Term.

(b) Purchase and Termination. Upon receipt in full by the Lessor of the Break Even Price pursuant to this Section 13.1, the Lease shall terminate and the obligations of the Lessee hereunder and under the other Operative Documents (other than any obligations expressed herein, or any other Operative Document as surviving termination of this Lease (including any obligations with respect to any existing Event of Default)) shall terminate as of the date of such receipt. Upon such receipt in full of the Break Even Price, the Leased Property and all rights to

 

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any remaining awards or proceeds shall be transferred to the Lessee or its designee in accordance with Section 23.11 hereof.

(c) Application of Payments Relating to an Event of Loss . Subject to Section 13.4, all condemnation proceeds and property insurance proceeds received at any time by Lessee during the Lease Term from any Authority or other Person with respect to any Event of Loss shall be promptly remitted to the Lessor (up to, but not exceeding, the Break Even Price) and, upon the payment in full of the Break Even Price, the Lessor shall assign to the Lessee all rights to any condemnation proceeds and property insurance proceeds and any such condemnation proceeds and property insurance proceeds remaining thereafter or thereafter received shall be paid by the Lessor (whichever shall receive same) over to Lessee, or as Lessee may direct, and any receipt of such proceeds shall satisfy the Lessee’s obligations under Section 13.1.

SECTION 13.2. Condemnation.

In case of a Condemnation for temporary use of all or a portion of the Leased Property or a Condemnation of a portion of the Leased Property, in each case which is not an Event of Taking, this Lease shall remain in full force and effect, without any abatement or reduction of Rent, and the proceeds and awards received from any Authority relating to such Condemnation shall, so long as no Material Default or Event of Default shall have occurred and be continuing, be paid by the Lessor to the Lessee and, to the extent applicable, shall be used by the Lessee to repair and restore the affected Leased Property to the condition required by Section 9.1. Notwithstanding anything herein to the contrary, any portion of such proceeds that is awarded with respect to the time period after the expiration or termination of the Lease Term (unless the Lessee shall have exercised an option to purchase the Leased Property and consummated such purchase) shall be paid to the Lessor; provided, that if the Lessee has paid the Break Even Price to the Lessor, such proceeds (or the portion of such proceeds in excess of portion thereof applied to the Break Even Price) shall be paid by the Lessor over to the Lessee.

SECTION 13.3. Casualty.

Upon any Casualty during the Base Term with respect to the Leased Property which is not an Event of Loss, this Lease shall remain in full force and effect, without any abatement or reduction of Rent and, if the cost of repair would exceed $2,000,000 (as reasonably determined by Lessee), the Lessee shall give to the Lessor written notice of such Casualty. As soon as practicable after such Casualty with respect to the Leased Property has occurred, the Lessee shall repair and rebuild the affected portions of the Leased Property suffering such Casualty (or cause such affected portions to be repaired and rebuilt) to the condition required to be maintained by Section 9.1 and so that the Fair Market Value, utility, useful life and functional capability of such item as restored is at least equivalent to the Fair Market Value, utility and useful life and functional capability of such item as in effect immediately prior to the occurrence of such Casualty (assuming the Improvements were being maintained in accordance with Section 9.1); provided, that at all times during such repair or rebuilding the Lessee shall maintain the Improvements in accordance with Section 9.1.

 

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SECTION 13.4. Proceeds.

If a Material Default or an Event of Default shall have occurred and be continuing, any proceeds received from any Authority or any insurance proceeds, in either case with respect to any Casualty or an Event of Loss, shall be held by the Lessor. So long as no Material Default or Event of Default shall have occurred and be continuing, any such proceeds received from any Authority or any insurance proceeds with respect to any Casualty, or if the Lessee has elected to rebuild the Improvements upon an Event of Loss pursuant to Section 13.1 hereof, with respect to such Event of Loss, shall be paid by the Lessor or by the insurers over to the Lessee up to $2,000,000. Any such proceeds received from any Authority or any insurance proceeds with respect to any Casualty or, if the Lessee has elected to rebuild the Improvements, with respect to an Event of Loss, in each case, not paid over to the Lessee in accordance with the previous sentence, shall be held by the Lessor and made available to the Lessee to pay costs actually incurred by the Lessee to restore the Leased Property as required herein in accordance with Section 13.1, as applicable, and any proceeds received from any Authority or any insurance proceeds remaining after such restoration shall be paid by the Lessor over to the Lessee.

SECTION 13.5. Negotiations.

In the event any part of the Leased Property becomes subject to condemnation or requisition proceedings during the Lease Term, the Lessee shall give notice thereof to the Lessor promptly after the Lessee has knowledge thereof and, to the extent permitted by any Applicable Laws, the Lessee shall control the negotiations with the relevant Authority unless an Event of Default has occurred and is continuing, in which case the Lessor shall be entitled to control such negotiations in consultation with the Lessee; provided, that in any event the Lessor may participate at the Lessor’s expense (or if an Event of Default is continuing or such negotiations occur during the Construction Period, at the Lessee’s expense) in such negotiations. Lessee shall give to the Lessor such information, and copies of such documents, which relate to such proceedings, or which relate to the settlement of amounts due under insurance policies required by Section 11.1, and are in the possession of the Lessee, as are reasonably requested by the Lessor. If the proceedings relate to an Event of Taking, the Lessee shall act diligently in connection therewith. Nothing contained in this Section 13.5 shall diminish the Lessor’s rights with respect to condemnation proceeds and property insurance proceeds under Section 13.1.

SECTION 13.6. No Rent Abatement.

Rent shall not abate hereunder by reason of any Casualty, any Event of Loss, any Event of Taking or any Condemnation of any portion of the Leased Property, and the Lessee shall continue to perform and fulfill all of the Lessee’s obligations, covenants and agreements hereunder notwithstanding such Casualty, Event of Loss, Event of Taking or Condemnation until the Lease Expiration Date.

ARTICLE XIV

CERTAIN DUTIES AND RESPONSIBILITIES

Lessor undertakes to perform such duties and only such duties as are specifically set forth herein and in the other Operative Documents, and no implied covenants or obligations shall be

 

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read into this Lease against the Lessor, and the Lessor agrees that it shall not, nor shall it have a duty to, manage, control, use, sell, maintain, insure, register, lease, operate, modify, dispose of or otherwise deal with the Improvements or the Site in any manner whatsoever, except as required by the terms of the Operative Documents and as otherwise provided herein.

ARTICLE XV

INSPECTION

Upon seven (7) Business Days prior notice to the Lessee, the Lessor or its authorized representatives (the “ Inspecting Parties ”) at any time during the Lease Term may inspect (a) the Improvements and the Site and (b) the books and records of the Lessee and its Affiliates relating to the Improvements and the Site and make copies and abstracts therefrom. All such inspections shall be (i) during the Lessee’s normal business hours, (ii) subject to the Lessee’s reasonable confidentiality requirements, and (iii) at the expense and risk of the Inspecting Parties, except that, if a Default or Event of Default has occurred and is continuing, the Lessee shall reimburse the Inspecting Parties for the reasonable out-of-pocket costs and expenses of such inspections and, except for the Inspecting Party’s gross negligence or willful misconduct, such inspection shall be at the Lessee’s risk. No inspection shall unreasonably interfere with the Lessee’s operations. None of the Inspecting Parties shall have any duty to make any such inspection or inquiry. None of the Inspecting Parties shall incur any liability or obligation by reason of making any such inspection or inquiry unless and to the extent such Inspecting Party causes damage to the Improvements or the Site or any property of the Lessee or any other Person during the course of such inspection.

ARTICLE XVI

ENVIRONMENTAL MATTERS

SECTION 16.1. Environmental Matters.

At the Lessee’s sole cost and expense, the Lessee shall promptly and diligently and in accordance with Applicable Laws commence and complete any response, clean up, remedial or other action necessary to remove, clean up or remediate any Environmental Violation with respect to the Improvements or the Site to the extent required of the Lessee or the Lessor in order to comply with Applicable Laws (a “ Remediation ”). Lessee shall, upon completion of remedial action by the Lessee (i) with respect to any Material Environmental Violation described in clause (ii) of the definition thereof, cause to be prepared by an authorized representative of the Lessee a certificate describing in sufficient detail such Environmental Violation and the actions taken by the Lessee (or its agents) in response to such Environmental Violation and a statement of such authorized representative of the Lessee that such Environmental Violation has been remedied in compliance in all material respects with Applicable Laws and (ii) with respect to any other Material Environmental Violation, cause to be prepared by the Environmental Expert a report describing in sufficient detail such Environmental Violation and the actions taken by the Lessee (or its agents) in response to such Environmental Violation, and a statement by the Environmental Expert that the Environmental Violation has been remedied in compliance in all material respects with Applicable Laws. Each Environmental Violation shall be remedied prior to the Lease Expiration Date unless the Leased Property has been purchased by the Lessee in

 

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accordance with Section 20.1, 20.2 or 22.1(a), provided that if remedying such Environmental Violation requires continued operation of a remediation system or monitoring of testing wells or similar ongoing testing, the Lessee shall have access at reasonable times and shall remain obligated to perform such actions unless the Lessor, in its sole discretion, notifies Lessee to terminate such actions. Nothing in this Article XVI shall reduce or limit the Lessee’s obligations under Article VII of the Participation Agreement (which obligations shall include any Claims arising from such actions).

SECTION 16.2. Notice of Environmental Matters.

Promptly upon the Lessee’s obtaining knowledge of the existence of any Material Environmental Violation with respect to the Improvements or the Site, the Lessee shall notify the Lessor in writing of such Material Environmental Violation. Promptly, but in any event within thirty (30) days from the date a Responsible Officer of the Lessee has actual knowledge thereof, the Lessee shall provide to Lessor written notice of any pending or, to the Lessee’s knowledge, threatened (in writing) claim, action or proceeding involving any Material Environmental Violation with respect to the Improvements or the Site. All such notices shall describe in reasonable detail the nature of the claim, action or proceeding and the Lessee’s proposed response thereto. In addition, the Lessee shall provide to the Lessor, within thirty (30) days of receipt, copies of all material written communications with any Authority relating to any Material Environmental Violation. Lessee shall also promptly provide such detailed reports of any Material Environmental Violation as may reasonably be requested by the Lessor. For purposes hereof, “ Material Environmental Violation ” shall mean any Environmental Violation (i) which imposes or, in the good faith judgment of the Lessee or the Lessor, could reasonably be expected to impose criminal liability on the Lessor, or (ii) the cost of which to remediate is or could reasonably be expected to be in excess of $1,000,000.

ARTICLE XVII

EVENTS OF DEFAULT

The occurrence of any one or more of the following events, whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body, shall constitute an “ Event of Default ”:

(a) the Lessee shall fail to make any payment of Basic Rent when due and such failure shall continue for a period of three (3) Business Days after notice thereof, or the Lessee shall fail to make any payment of the Break Even Price, Lease Balance or other amounts due and payable under Article XIII, Article XX, Section 21.1(a) or Article XXII when due;

(b) the Lessee shall fail to make payment of any Supplemental Rent (other than any Supplemental Rent described in clause (a) above) when due and such failure shall continue for a period of ten (10) Business Days after notice thereof;

(c) the Lessee shall fail to maintain insurance as required by Article XI of this Lease;

 

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(d) the Lessee shall fail to perform or observe any of the terms, covenants, conditions and agreements set forth in Articles XXI and XXII of this Lease other than the failure to give notice of an end of term option pursuant to Section 21.1 hereof;

(e) any representation, warranty, certification or statement made or deemed to be made by the Lessee under this Lease, any other Operative Document (except as to any Other Lease Document) or in any certificate, financial statement or other document delivered pursuant hereto or thereto, shall at any time prove to have been incorrect in any material respect when made or deemed made and Lessee shall fail to cure the underlying facts causing such representation, warranty, certification or statement to be incorrect in all material respects for a period of ten (10) Business Days after the earlier of Actual Knowledge or notice thereof;

(f) the Lessee shall default in the performance or observance of any term, covenant, condition or agreement contained in this Lease (other than as specifically provided for otherwise in this Article XVII) or any other Operative Document (except as to any Other Lease Document) and such default shall continue for a period of thirty (30) days after the earlier of Actual Knowledge thereof or written notice thereof has been given to the Lessee; provided, however, that if such failure is capable of cure but cannot be cured by payment of money or cannot be cured by diligent efforts within such thirty (30) day period but such diligent efforts shall be properly commenced within such thirty (30) day period and the Lessee is diligently pursuing, and shall continue to pursue diligently remedy of such failure, such cure period shall be extended for an additional period of time in excess of such cure period as may be necessary to cure, not to extend beyond the earlier to occur of (i) the Lease Expiration Date or (ii) one hundred and twenty (120) days after the earlier of Actual Knowledge thereof or written notice thereof having been given to the Lessee;

(g) (i) Lessee or any of its Subsidiaries shall default beyond any applicable period of grace in any payment of principal of or interest on any indebtedness for borrowed money on which Lessee or any of its subsidiaries is liable in an aggregate principal amount then outstanding of $50,000,000 or more or (ii) an event of default (other than a failure to pay principal or interest) as defined in any mortgage, indenture, agreement or instrument under which there may be issued, or by which there may be secured or evidenced, any such indebtedness shall happen and shall result in such indebtedness becoming or being declared due and payable prior to the date on which it could otherwise become due and payable;

(h) the Lessee or any material Subsidiary shall file a voluntary petition of insolvency, bankruptcy or a voluntary petition or an answer seeking reorganization in a proceeding under any bankruptcy, insolvency or other similar laws (as now or hereafter in effect) or an answer admitting the material allegations of a petition filed against the Lessee in any such proceeding; or the Lessee shall, by voluntary petition, answer or consent, seek relief under the provisions of Bankruptcy Code or any other now existing or future bankruptcy, insolvency or other similar law providing for reorganization, administration or winding-up or for an agreement, composition, extension or adjustment with their respective creditors, or shall adopt a resolution of liquidation, including but not limited to, any petition or notice filed by the Board of Directors of the Lessee or such Subsidiary or the Lessee shall admit in writing its inability or fail generally to pay its debts or the Lessee shall seek the appointment of a trustee in bankruptcy, administrator or a receiver for any kind of insolvency proceedings for itself or any substantial portion of its assets,

 

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or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall take any corporate action to authorize any of the foregoing;

(i) an involuntary case or other proceeding shall be commenced against the Lessee or any material Subsidiary seeking its bankruptcy, liquidation, reorganization, winding-up or other relief with respect to it or its debts under the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of sixty (60) consecutive days; or the Lessee or any material Subsidiary shall be declared bankrupt or any other order for relief shall be entered against the Lessee or any material Subsidiary under the U.S. Federal bankruptcy laws or any other relevant bankruptcy laws of any jurisdiction;

(j) a final judgment or order for the payment of money in excess of $125,000,000 (to the extent not covered by insurance) shall be rendered against the Lessee or any material Subsidiary and the Lessee or such Subsidiary shall not discharge the same or provide for its discharge in accordance with its terms, or procure a stay of execution thereof, within sixty (60) days after the date of entry thereof and, in the case of any such stay of execution, within said period of sixty (60) days (or such longer period during which execution of such judgment shall have been stayed) appeal therefrom and cause the execution thereof to be stayed during such appeal;

(k) a Change in Control shall occur;

(l) (i) Lessee or any ERISA Affiliate shall fail to pay within thirty (30) days of the due date thereof an amount or amounts aggregating in excess of $100,000,000 which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; (ii) notice of intent to terminate a Plan having unfunded benefit liabilities (within the meaning of Section 4001(a)(18) of ERISA) in excess of $100,000,000 (a “ Material Plan ”) shall be filed under Title IV of ERISA by Lessee or any ERISA Affiliate, any plan administrator or any combination of the foregoing; (iii) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan; (iv) the failure of Lessee or any ERISA Affiliate to make any required contribution to a Multiemployer Plan unless the failure is cured within thirty (30) days, (v) the withdrawal or partial withdrawal of Lessee or any ERISA Affiliate from any Multiemployer Plan, (vi) the receipt by Lessee or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from Lessee or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, “ insolvent ” (within the meaning of Section 4245 of ERISA) or in “ reorganization ” (within the meaning of Section 4241 of (ERISA) or (vii) the imposition of liability on Lessee or any ERISA Affiliate by reason of the application of Section 4212(c) of ERISA, in each case with respect to clauses (iv)-(vii), to the extent that such event, taken together with any other such events described in clauses (iv)-(vii), could reasonably be expected to result in Lessee incurring aggregate liability in excess of $100,000,000;

 

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(m) any Operative Document (except as to any Other Lease Document) or any assignment, security interest or Lien granted thereunder (except in accordance with its terms), in whole or in part, terminates, ceases to be a legal, valid and binding enforceable obligation of the Lessee or any of its Affiliates or the Lessee or any of its Affiliates, directly or indirectly, contests in any manner in any court the effectiveness, validity, binding nature or enforceability thereof; or any assignment, security interest or Lien securing the Lessee’s obligations under the Operative Documents, in whole or in material part, ceases to be perfected (except as the result of any affirmative act of the Lessor, failure by the Lessor to file a UCC continuation statement or by operation of law) with the same priority as was in effect on the Closing Date; or

(n) an Event of Default shall have occurred under and as defined in the Pledge Agreement (Fremont 4).

ARTICLE XVIII

ENFORCEMENT

SECTION 18.1. Remedies.

(a) During the continuation of an Event of Default and notwithstanding any Event of Loss or termination of the Lease pursuant to Article XIII, at the Lessor’s option and without limiting the Lessor in the exercise of any other right or remedy the Lessor may have on account of such Event of Default, and without any further demand or notice, the Lessor may to the fullest extent permitted under Applicable Laws cause the following to occur:

(i) By notice to the Lessee, the Lessor may terminate the Lessee’s right to possession of the Leased Property.

(ii) The Lessor may (i) demand that Lessee, and Lessee shall upon the written demand of the Lessor, return the Leased Property promptly to the Lessor in the condition required by Section 22.5 and the Lessor shall not be liable for the reimbursement of Lessee for any costs and expenses incurred by Lessee in connection therewith, and (ii) without prejudice to any other remedy which the Lessor may have for possession of the Leased Property, and to the extent and in the manner permitted by Applicable Laws, enter upon the Site and Improvements and take immediate possession of (to the exclusion of Lessee) the Leased Property or any part thereof and expel or remove Lessee, by summary proceedings or otherwise, all without liability to Lessee for or by reason of such entry or taking of possession (provided that, the Lessor shall remain liable for actual damages caused by its bad faith, gross negligence or willful misconduct), whether for the restoration of damage to property caused by such taking of possession or otherwise and, in addition to the Lessor’s other damages, Lessee shall be responsible for all actual and reasonable costs and expenses incurred by the Lessor in connection with any reletting, including brokers’ fees and all costs of any alterations or repairs made by the Lessor;

(iii) The Lessor may terminate this Lease with respect to all or any part of the Leased Property and/or declare the aggregate outstanding Lease Balance to be immediately due and payable, and the Lessor shall be entitled to (x) recover from the Lessee the following amounts and (y) take the following actions:

 

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(1) the Lessee shall pay all accrued and unpaid Rent hereunder (including Basic Rent and Supplemental Rent) for the period commencing on the Closing Date through the Final Rent Payment Date with respect to the Leased Property;

(2) the Lessor may elect either of the following with respect to any or all of the Leased Property:

(A) the Lessor may demand, by written notice to the Lessee specifying a payment date (the “ Final Rent Payment Date ”) on a Business Day no earlier than thirty (30) days after the date of such notice but, in any event, no later than the date the Leased Property or part thereof is sold pursuant to clause (B)(2) hereof, that the Lessee purchase the Leased Property, and the Lessee shall pay to the Lessor, on the Final Rent Payment Date (in lieu of Basic Rent due after the Final Rent Payment Date), an amount equal to the sum of (x) the Lease Balance computed for the period commencing on the Closing Date to and including the Final Rent Payment Date, plus (y) all accrued and unpaid Rent due and unpaid for the period commencing on the Closing Date to and including the Final Rent Payment Date (less any amounts paid by the Lessee under clause (x) above), and upon payment of such amount, and the amount of all other sums due and payable by the Lessee under this Lease and the other Operative Documents (and interest at the Overdue Rate on the amounts payable under this clause (B)(1) from the Final Rent Payment Date to the date of actual payment), the Leased Property shall be transferred to the Lessee or its designee pursuant to Section 23.11; or

(B) the Lessor may sell its interest in the Leased Property and/or pursue any and all remedies under the Security Documents, and, in any event, the Lessee shall pay to the Lessor an amount equal to the excess, if any, of (x) all amounts described in clause (B)(1) above due the Lessor over (y) the net Sale Proceeds received by the Lessor from the foregoing sale (provided, that in calculating such net Sale Proceeds, all fees, costs, expenses and Taxes to the extent not indemnified and not paid by the Lessee pursuant to Section 7.2 of the Participation Agreement incurred by the Lessor in connection with such sale, including legal fees, shall be deducted from such Sale Proceeds);

(3) Any other amount necessary to compensate the Lessor for all the damages caused by or resulting from the Lessee’s failure to perform the Lessee’s obligation under this Lease, including the costs and expenses (including reasonable attorneys’ fees, advertising costs and brokers’ commissions) of recovering possession of the Leased Property, removing Persons or property from the Leased Property, placing the Leased Property in good order, condition, and repair, preparing and altering the Leased Property for reletting, and all other costs and expenses of reletting; and

 

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(4) Such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by Applicable Laws.

(iv) The Lessor may exercise any and all rights and remedies under the Security Documents including with respect to the Cash Collateral subject to the Pledge Agreement and accounts under the Blocked Account Agreement.

(v) If an Event of Default under this Lease is continuing, this Lease shall continue in effect for so long as the Lessor does not terminate this Lease, and the Lessor may enforce all of the Lessor’s rights and remedies under this Lease, including the right to recover the Rent hereunder (including Basic Rent (when applicable) and Supplemental Rent) as it becomes due under this Lease. Lessee’s right to possession shall not be deemed to have been terminated by the Lessor except pursuant to clause (i) above. The following do not constitute a termination of this Lease:

(1) Acts of maintenance or preservation or efforts to relet the Leased Property; and

(2) Withholding of consent to assignment or subletting, or terminating a subletting or assignment by the Lessee.

(vi) In the event that the Lessor elects to continue this Lease in full force and effect following the termination of the Lessee’s right of possession of the Improvements, the Lessor, to the maximum extent permitted by Applicable Laws, may enforce all its rights and remedies under this Lease including the right to recover Rent hereunder as it becomes due. During the continuance of an Event of Default or following the termination of the Lessee’s right to possession of the Improvements, the Lessor may enter the Improvements and the Site in accordance with Applicable Laws without terminating this Lease and sublet all or any part of the Leased Property for the Lessee’s account to any Person, for such term (which may be a period beyond the remaining Lease Term), at such rents and on such other terms and conditions as are commercially reasonable. In the event of any such subletting, rents received by the Lessor from such subletting shall be applied (a) first, to the payment of the reasonable costs incurred by the Lessor in maintaining, preserving, altering and preparing the Leased Property for subletting and other reasonable costs of subletting, including reasonable brokers’ commissions and attorneys’ fees; (b) second, to the payment of Rent hereunder then due and payable; (c) third, to the payment of future Rent hereunder as the same may become due and payable hereunder; (d) fourth, to the payment of all other obligations of the Lessee hereunder and under the other Operative Documents (including the Lease Balance), and (e) fifth, the balance, if any, shall be paid to the Lessee upon (but not before) expiration of the Lease Term. If the rents received by the Lessor from such subletting, after application as provided above, are insufficient in any period to pay the Rent due and payable hereunder for such period, the Lessee shall pay such deficiency to the Lessor upon demand. Notwithstanding any such subletting for the Lessee’s account without termination, the Lessor may at any time thereafter, by written notice to the Lessee, elect to terminate this Lease.

 

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(vii) The Lessor may exercise any other right or remedy that may be available to it under Applicable Laws or in equity, or proceed by appropriate court action (legal or equitable) to enforce the terms or to recover damages for the breach hereof, including those arising from a breach by the Lessee of its obligations under Section 20.2 hereof. Separate suits may be brought to collect any such damages for any Rent installment period(s), and such suits shall not in any manner prejudice the Lessor’s right to collect any such damages for any subsequent Rent installment period(s), or the Lessor may defer any such suit until after the expiration of the Lease Term, in which event such suit shall be deemed not to have accrued until the expiration of the Lease Term.

(viii) The Lessor may retain and apply against the Lessor’s damages all sums which the Lessor would, absent such Event of Default, be required to pay to, or turn over to, the Lessee pursuant to the terms of this Lease.

The Lessee acknowledges and agrees that upon the declaration of an Event of Default the amount due and owing by the Lessee to the Lessor hereunder shall be the Lease Balance and that to the maximum extent permitted by Applicable Laws, the Lessee waives any right to contest the Lease Balance as the liquidated sum or agreed upon sum due and owing.

(b) In the event that an Event of Default is declared (or deemed declared) solely and exclusively on the basis of one or more 97-1 Events of Default,

(x) a claim or demand by the Lessor for payment by Lessee of or in respect of the Lease Balance under Section 18.1(a) hereof shall be limited as follows:

(i) any obligation of the Lessee to pay the Lease Balance and amounts due under clauses (C) and (D) of Section 18.1(a)(iii) shall be reduced to be an obligation to pay an amount equal to the Recourse Deficiency Amount; provided, however, that if Lessee shall not pay the full Lease Balance and such other amounts, the Lessor shall not have any obligation to transfer the Leased Property to the Lessee or its designee as provided in clause (B)(1) of Section 18.1(a)(iii); and

(ii) any obligation of the Lessee to pay any shortfall determined by reference to the Lease Balance as provided in clauses (B)(2) of Section 18.1(a)(iii), and amounts due under clauses (C) and (D) of Section 18.1(a)(iii) shall be revised to be an obligation to pay the lesser of (i) such shortfall plus such other amounts and (ii) the Recourse Deficiency Amount; and

the references to “ Lease Balance ” in the last paragraph of Section 18.1(a) and in Section 18.2 shall be deemed references to the amount described in clause (i) or clause (ii) above, as applicable, provided, however, that the foregoing limitation shall not limit or affect any other rights of the Lessor as Lessor shall have all rights and remedies available under the Operative Documents or available at law, equity or otherwise including the right to demand the payment of Supplemental Rent (other than the Lease Balance) and the right to require surrender and return or sale to a third party of the Leased Property all as set forth herein; and

 

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(y) if Section 18.1(a)(vi) is applicable, the reference to Lease Balance in clause (d) thereof shall be a reference to the Recourse Deficiency Amount so long as the Lease has not been terminated.

SECTION 18.2. Proceeds of Sale; Deficiency.

(a) All payments received and amounts held or realized by the Lessor at any time when an Event of Default shall be continuing and after the Lease Balance shall have been accelerated pursuant to this Article XVIII as well as all payments or amounts then held or thereafter received by the Lessor (except for rents received by the Lessor from subletting pursuant to Section 18.1(a)(vi), which shall be distributed as set forth therein) and the proceeds of sale pursuant to Section 18.1(a)(iii)(B)(2) shall be distributed forthwith upon receipt by the Lessor as follows:

first , to the Lessor, so much of such amount as is required to reimburse the Lessor for any fees, costs, expenses, Taxes or other loss incurred by it (to the extent not previously reimbursed);

second , to the Lessor, so much of such amounts as are required to pay all expenses or fees incurred by the Lessor in connection therewith including Break Funding Amounts, if any;

third , to the Lessor, so much of such amount as is required to pay all accrued Yield thereon;

fourth , to the Lessor, so much of such amounts as are required to pay in full the outstanding amount of the Lease Balance;

fifth , to the Lessor, so much of such amounts as are required to pay all outstanding obligations of Lessee pursuant to the Operative Documents including all indemnities which are due and payable; and

sixth , to Lessee, the balance of such amount, if any.

SECTION 18.3. Waiver of Certain Rights.

To the maximum extent permitted by Applicable Laws, (a) the Lessee hereby waives the benefit of any appraisement, valuation, stay, extension, reinstatement and redemption laws now or hereafter in force and all rights of marshalling in the event of any sale of the Leased Property or any interest therein and (b) if this Lease shall be terminated pursuant to this Article XVIII, the Lessee waives, to the fullest extent permitted by Applicable Laws, (i) any notice of re-entry or the institution of legal proceedings to obtain re-entry or possession, (ii) any right of redemption, re-entry or repossession, (iii) the benefit of any laws now or hereafter in force exempting property from liability for rent or for debt or limiting the Lessor with respect to the election of remedies, (iv) any other rights which might otherwise limit or modify any of the Lessor’s rights or remedies under this Article XVIII, and (v) any rights now or hereafter conferred under California Applicable Laws that may require the Lessor to sell, lease or otherwise use the Leased Property, or any part thereof in mitigation of the Lessor’s damages upon the occurrence of an

 

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Event of Default or that may otherwise limit or modify any of the Lessor’s rights or remedies under this Article XVIII.

SECTION 18.4. Remedies Cumulative; No Waiver; Consents.

To the extent permitted by, and subject to the mandatory requirements of, Applicable Laws, each and every right, power and remedy herein specifically given to the Lessor or otherwise in this Lease shall be cumulative and shall be in addition to every other right, power and remedy herein specifically given or now or hereafter existing at law, in equity or by statute, and each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised from time to time and as often and in such order as may be deemed expedient by the Lessor, and the exercise or the beginning of the exercise of any power or remedy shall not be construed to be a waiver of the right to exercise at the same time or thereafter any other right, power or remedy. No delay or omission by the Lessor in the exercise of any right, power or remedy or in the pursuit of any remedy shall impair any such right, power or remedy or be construed to be a waiver of any default on the part of the Lessee or be an acquiescence therein. Lessor’s consent to any request made by the Lessee shall not be deemed to constitute or preclude the necessity for obtaining the Lessor’s consent, in the future, to all similar requests. No express or implied waiver by the Lessor of any Event of Default shall in any way be, or be construed to be, a waiver of any future or subsequent Default or Event of Default.

ARTICLE XIX

RIGHT TO CURE

If any Event of Default other than those described in paragraphs (h) and (i) of Article XVII shall be continuing and in the Lessor’s reasonably exercised judgment the Lessee is not acting diligently and appropriately to cure such Event of Default, the Lessor may, but shall not be obligated to, on five (5) Business Days’ prior notice to the Lessee (except in the event of an emergency, in which case only one (1) Business Day’s prior notice shall be required), cure such Event of Default and the Lessor shall not thereby be deemed to have waived any default caused by such failure to cure, and the amount of such payment and the amount of the expenses of the Lessor (including reasonable attorneys’ fees and expenses) incurred in connection with such cure, together with interest thereon at the Overdue Rate, shall be deemed Supplemental Rent, payable by the Lessee to the Lessor upon demand.

ARTICLE XX

EARLY TERMINATION OPTION; OBLIGATION TO PURCHASE; MID-TERM REMARKETING OPTION

SECTION 20.1. Early Termination Option.

Without limitation of the Lessee’s purchase obligation pursuant to Section 20.2, the Lessee may, at its option, on any Business Day following the Base Term Commencement Date but prior to the Lessee’s election to exercise the Return Option, purchase all, but not less than all, of the Leased Property (the “ Early Termination Option ”) at a price equal to the Break Even Price - Special Land Value. In order to exercise its option to purchase the Leased Property pursuant to this Section 20.1, the Lessee shall give the Lessor not less than thirty (30) days’ prior

 

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written notice of such election which election, in each case, shall be irrevocable when made. Notwithstanding anything herein to the contrary, the Lessee shall not be permitted to exercise the Early Termination Option following the occurrence and during the continuance of an Event of Default unless it shall (i) elect the Early Termination Option on or before ten (10) Business Days following such Event of Default, and (ii) consummate the purchase of the Leased Property by Lessee (or its designee) before twenty (20) Business Days following such Event of Default. Upon receipt of the Break Even Price - Special Land Value, the Leased Property shall be transferred to the Lessee (or its designee) pursuant to Section 23.11.

SECTION 20.2. Required Purchase.

So long as the Lessor has not exercised any other remedy inconsistent therewith, the Lessee shall be obligated to purchase the Leased Property for the Break Even Price - Special Land Value automatically and without notice upon the occurrence of any Event of Default described in clauses (h) or (i) of Article XVII and upon receipt of the Break Even Price the Leased Property shall be transferred to the Lessee (or its designee) pursuant to Section 23.11.

SECTION 20.3. Mid-term Remarketing Option.

At any time during the Lease Term other than after the occurrence and during the continuance of an Event of Default, Lessee shall have the option (the “ Remarketing Option ”) to designate a third party purchaser and to cause the Lessor to sell the Leased Property to such purchaser on the date designated for the sale thereof by Lessee (the “ Remarketing Sale Date ”) provided, that the Lessor shall have received the Remarketing Sale Proceeds of such sale together with (in the case where such Remarketing Sale Proceeds do not equal or exceed the Break Even Price) additional cash amounts paid to the Lessor by the Lessee, as Supplemental Rent, in an amount equal to the excess of the Break Even Price over such Remarketing Sale Proceeds. If the Remarketing Sale Proceeds exceed the Break Even Price as of such Remarketing Sale Date, the Lessor shall pay over to the Lessee the portion of the Remarketing Sale Proceeds in excess thereof after satisfaction of all amounts due hereunder or under the other Operative Documents. Subject to, and concurrent with, the receipt by the Lessor of funds equal to or in excess of the Break Even Price, on the Remarketing Sale Date, the Lessor shall convey to the Lessee or its designee the Leased Property in accordance with Section 23.11. The Lessee shall be responsible for the payment of all fees and expenses of the Lessor (including reasonable attorneys’ fees and expenses) incurred in connection with any exercise or purported exercise of the Remarketing Option.

ARTICLE XXI

END OF TERM OPTIONS

SECTION 21.1. End of Term Options

At least one hundred and eighty (180) days prior to the Return Date, but not more than two hundred seventy (270) days, the Lessee shall, by delivery of an irrevocable written notice to the Lessor, exercise one of the following options:

 

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(a) Purchase for cash for the Break Even Price - Special Land Value all, but not less than all, of the Leased Property then subject to this Lease on the last day of the Lease Term (the “ Purchase Option ”) and if the Lessee shall have elected the Purchase Option, upon the payment to the Lessor of the Break Even Price, the Leased Property shall be transferred to the Lessee (or its designee) pursuant to Section 23.11; or

(b) Provided no Default or Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Event of Default with respect to which the Lessor has not yet commenced exercising remedies) shall have occurred and be continuing, return the Leased Property to the Lessor at the end of the scheduled expiration date of the Lease Term (the “ Return Option ”). The Return Option shall be conditioned upon and subject to the fulfillment by the Lessee of each of the terms and conditions set forth in Article XXII and, thereafter, the Lessee shall have no further obligations to pay Basic Rent or the remaining Lease Balance. Lessee shall not enter into any additional subleases or renew any subleases with respect to the Leased Property following the Lessee’s election of the Return Option. Following the Lessee’s election of the Return Option, the Lessee shall not remove any Alterations.

SECTION 21.2. Election of Options.

In the event Lessor shall not have received the foregoing notice from Lessee prior to the date that is one hundred and eighty (180) days prior to the last day of the Return Date, by delivery of written notice via nationally recognized overnight courier to the Lessee, Lessor may notify the Lessee of the expiration of the election notice period set forth in the preceding section. If, in any event, the Lessee fails to make a timely election under Section 21.1 hereof, the Lessee shall be deemed to have elected the Return Option. Lessee may not elect the Return Option if there exists on the date the election is made a Default, an Event of Default or an Event of Loss. In the event a Default or an Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) or an Event of Loss shall have occurred after the election by the Lessee, or deemed election by the Lessee, of the Return Option, then notwithstanding any such election or deemed election, Lessee shall be deemed to have elected the Purchase Option with respect to the Leased Property. In the event a Default or Event of Default that is solely and exclusively based on one or more 97-1 Events of Default shall have occurred after the election by Lessee of the Return Option, (i) Lessee may continue with its Return Option so long as the Lessor has not commenced exercising remedies with respect thereto, and (ii) Lessee shall not be permitted to continue with its Return Option and shall be subject to Section 18 hereof including the limitations set forth in Section 18.1(b) hereof, in the event the Lessor shall have commenced remedies with respect thereto.

ARTICLE XXII

RETURN OPTION

SECTION 22.1. Return Option Procedures.

(a) If the Lessee elects or is deemed to have elected the Return Option and the Lessor elects to require the Lessee to offer to sell the Leased Property, at the option of the Lessor, (x)

 

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the purchaser shall be reasonably entitled (whether on or before the Return Date or thereafter) to be granted a temporary easement or other right of access from the Lessee on the Leased Property to enable the purchaser to have access over paths and streets necessary to remarket the Leased Property (the “ Easement ”) (which obligation of the Lessee to grant such Easement hereunder shall survive the termination of this Lease), or (y) the Lessee shall use commercially reasonable efforts as non-exclusive agent for the Lessor to obtain the highest all cash purchase price for the Leased Property. In the event the Lessee receives any bid, the Lessee shall within five (5) Business Days after receipt thereof and, at least five (5) Business Days prior to the Return Date, certify to the Lessor in writing the amount and terms of such bid and the name and address of the party (who shall not be the Lessee or any Subsidiary of the Lessee or, unless the sum of (i) the Sale Proceeds pursuant to a proposed bid which the Lessee desires to accept plus (ii) the Recourse Deficiency Amount plus (iii) any amount payable pursuant to Section 7.5 of the Participation Agreement is not less than the Break Even Price, any Person with whom the Lessee has an understanding or arrangement regarding their future use, possession or ownership of the Leased Property or the Lessor’s other rights, title and interest in and to the Leased Property, but who may be the Lessor, any Affiliate thereof, or any Person contacted by the Lessor (other than any Person otherwise forbidden from being such purchaser pursuant to the foregoing parenthetical)) submitting such bid, and the Lessee and any sublessee shall confirm in writing both to the Lessor and to the bidder that it will vacate the Leased Property and take such reasonable steps as may be required to grant to the bidder the Easement on or before the Return Date.

(b) If the sum of (i) the Sales Proceeds pursuant to a proposed bid which the Lessee desires to accept plus (ii) the Recourse Deficiency Amount plus (iii) any amount payable pursuant to Section 7.5 of the Participation Agreement is not less than the Break Even Price, then the Lessee shall determine and accept the winning bid; otherwise, Lessor shall have the right, in its sole and absolute discretion to accept or reject any bid so presented by the Lessee. As non-exclusive selling agent, Lessee’s expenses and the out-of-pocket expenses incurred by the Lessor in connection with any such bidding and sale process pursuant to this Section 22.1 as well as all costs and expenses incurred by the Lessor or a buyer or potential buyer of the Leased Property to place the Leased Property in the condition required by Section 9.1, shall be deducted from the Sale Proceeds. On the Return Date, so long as no Event of Default or Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) shall have occurred and be continuing: (w) the Lessee shall transfer all of the Lessee’s right, title and interest in the Leased Property if any, that the Lessor does not yet hold pursuant to the terms of the Operative Documents to the bidder, if any, which shall have submitted the bid (if any) accepted pursuant to this Section 22.1(b), in the same manner and in the same condition and otherwise in accordance with all of the terms of this Lease, warranted free and clear of all Liens other than Permitted Liens described in clauses (a) and (b) of the definition thereof; (x) subject to the prior or current payment by the Lessee of all amounts due under clause (y) of this sentence, the Lessor shall comply with any conditions to transfer set forth in Section 22.2 and the transfer provisions of Section 22.1(b) in order to transfer its interests in the Leased Property for cash to such bidder; (y) the Lessee, as non-exclusive selling agent, shall simultaneously pay to the Lessor all of the amounts required pursuant to Section 22.3; and (z) after payment in full of all amounts owing to the Lessor hereunder and under the terms of the bid, this Lease shall terminate or, at Lessee’s option, shall be assigned by Lessor without recourse or warranty by Lessor to a

 

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designee concurrent with the payment of such designated amount. The Lessor shall not have any responsibility for procuring any purchaser; provided, however, that the Lessor and its designees may engage in activities to market and sell the Leased Property and may terminate Lessee as its non-exclusive selling agent upon one (1) Business Day’s notice. Any such activities reasonably undertaken by the Lessor pursuant to this Section 22.1(b) shall be at the Lessor’s sole cost and expense (which shall be deducted from the Sale Proceeds in accordance with the foregoing), shall not reduce the Lessee’s obligations, as non-exclusive selling agent, under this Section 22.1(b) or during the Extended Remarketing Period) to use commercially reasonable efforts, as non-exclusive selling agent, to sell the Leased Property in accordance with the requirements of this Section 22.1(b) and Section 22.2. If the Sale Proceeds exceed the Break Even Price as of the Return Date, the Lessee shall retain or be entitled to receive the portion of the Sale Proceeds in excess thereof. If the Sale Proceeds are less than the aggregate outstanding Break Even Price, the Lessee shall pay or shall cause to be paid to the Lessor, as Supplemental Rent, on the date of such sale (but not later than the Return Date), in addition to the Sale Proceeds, an additional amount as set forth in the last sentence of Section 22.3(a) hereof.

SECTION 22.2. Sale.

Lessee, as non-exclusive selling agent, shall, on the Return Date, at the Lessee’s own expense (without right of reimbursement therefor out of gross sale proceeds except as provided in the third sentence of Section 22.1(b) above), negotiate the terms of any applicable sale, such that the Leased Property transferred to the purchaser in accordance with Section 22.1 hereof is (i) free and clear of all Liens, other than Permitted Liens described in clauses (a) or (b) of the definition thereof and (ii) (A) in the condition required by the terms of this Lease, (B) capable of operating in accordance with the purposes set forth in the Appraisal, (C) without any lessees claiming relief or exemption from judicial execution, and (D) in compliance with all Applicable Laws. Lessee, as non-exclusive selling agent, shall obtain all necessary governmental consents and approvals and make all governmental filings required by the Lessee or the Lessor in connection with any sale and grant of rights. Lessee, as non-exclusive selling agent, shall cooperate with the purchaser of the Leased Property in order to facilitate the transfers of the use, ownership and operation of the Leased Property by such purchaser after the date of the sale or transfer, including providing all books, reports and records regarding the maintenance, repair and ownership of the Leased Property and granting or assigning all licenses necessary for the operation of the Leased Property and cooperating in seeking and obtaining all necessary Governmental Actions. Lessee shall also, on the Return Date, vacate and cause any sublessee to vacate the Leased Property. As a further condition to the Lessee’s rights hereunder, the Lessee shall pay the total cost for the completion of all Alterations commenced after the Base Term Commencement Date and prior to the Return Date, and, subject to the Lessee’s right to use applicable insurance proceeds as set forth in Article XIII hereof, for the repair and rebuilding of the affected portions of the Leased Property suffering a Casualty after the Base Term Commencement Date. Such Alterations and all such repairs and rebuilding shall be completed prior to the Return Date. Unless the Lessee shall have exercised or been deemed to have exercised its Purchase Option or the Leased Property is to be sold to an independent purchaser, prior to the Return Date, the Lessee shall furnish to the Lessor and the independent purchaser hereunder a reasonably current preliminary environmental survey for the Leased Property dated no earlier than forty-five (45) days prior to the Return Date, from an environmental consultant satisfactory in the reasonable discretion of Lessor certifying that there exists no environmental

 

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contamination with respect to the Leased Property which would adversely affect the marketability, fair market value or useful life, as determined by the Appraisal, of the Leased Property or have an adverse effect on the Lessor and addressed to Lessor in form and substance satisfactory in the reasonable discretion of Lessor. The obligations of the Lessee under this Section 22.2 shall survive the expiration or termination of this Lease. Unless the Lessee shall have exercised or been deemed to have exercised its Purchase Option or the Leased Property is to be sold to an independent purchaser, the Lessor shall be entitled to perform such investigation, including obtaining reports of engineers and other experts as to the condition and state of repair and maintenance of the Improvements and the Site required by this Section 22.2 and as to the compliance of the Leased Property with Applicable Laws, including Environmental Laws, as it deems appropriate. Lessee, at its sole cost and expense (without right of reimbursement therefor out of gross sale proceeds but, subject to the Lessee’s right to use applicable insurance and condemnation proceeds as set forth in Article XIII hereof), shall cause the repair or other remediation of any discrepancies between the actual condition of the Improvements and the Site and the condition required under this Lease, such repair or remediation to be completed not later than the Return Date.

SECTION 22.3. Application of Sale Proceeds and Recourse Payments.

(a) On the Return Date, in connection with the Lessee’s exercise of the Return Option, the Lessee shall pay to the Lessor all Rent then due together with all other amounts due and payable by the Lessee to the Lessor or any Indemnitee. The Lessee also shall cause to be paid to the Lessor, from the aggregate Sale Proceeds - Special Land Value (after application of gross sale proceeds to payment of any deed or transfer tax thereon not paid by the purchaser thereof and payment or reimbursement to the Lessee and/or the Lessor for any costs or expenses incurred by the Lessee and/or the Lessor in connection with the actions required under Sections 22.1 and 22.2, excluding any provision thereof which expressly specifies that the Lessee’s costs shall not be reimbursable out of gross sale proceeds), the aggregate outstanding Break Even Price - Special Land Value as of the Return Date (as determined after the payment of all Rent due on such date and application of all other payments hereunder by Lessee in accordance with Section 22.3(c) hereof). If the Sale Proceeds - Special Land Value exceed the Break Even Price - Special Land Value as of the Return Date, the Lessee shall retain or be entitled to receive the portion of the Sale Proceeds - Special Land Value in excess thereof. If the Sale Proceeds - Special Land Value are less than the aggregate outstanding Break Even Price - Special Land Value, the Lessee shall pay or shall cause to be paid to the Lessor, as Supplemental Rent, on the Return Date, in addition to the Sale Proceeds - Special Land Value, an additional amount equal to the lesser of (A) the sum of (x) the amount that the Break Even Price (Improvements) exceeds the Sale Proceeds (Improvements) and (y) the amount that the Break Even Price (Land) exceeds the Sale Proceeds (Land) or (B) provided no Default or Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) has occurred and is continuing, the Recourse Deficiency Amount.

(b) The obligation of the Lessee to pay the amounts determined pursuant to Sections 22.3(a) and 22.4 shall be recourse obligations of the Lessee, and such payments by the Lessee shall not limit any other obligation of the Lessee under the Operative Documents, including pursuant to Article VII of the Participation Agreement.

 

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(c) If on any date the Lessor shall receive any amounts that constitute payment of the Recourse Deficiency Amount and any Sale Proceeds following Lessee’s election to return or deemed election to have returned the Leased Property at the Return Date, the Lessor shall apply such amounts in the following order of priority:

first , to the Lessor, so much of such amount as is required to reimburse the Lessor for any fees, costs, expenses, Taxes or other loss incurred by it (to the extent not previously reimbursed);

second , to the Lessor, so much of such amounts as are required to pay all expenses or fees incurred by the Lessor in connection therewith including Break Funding Amounts, if any;

third , to the Lessor, so much of such amount as is required to pay all accrued Yield thereon;

fourth , to the Lessor, so much of such amounts as are required to pay in full the outstanding amount of the Lease Balance;

fifth , to the Lessor, so much of such amounts as are required to pay all outstanding obligations of Lessee pursuant to the Operative Documents including all indemnities due and payable; and

sixth , to Lessee, the balance of such amount, if any.

(d) If the Lessee elects or is deemed to have elected the Return Option with respect to the Leased Property, at the time of such election, the Lessee and the Lessor shall use the Valuation Procedure (as defined below) to determine the ratio, expressed as a percentage, of the Fair Market Value of the Site at the time of such election, divided by the Fair Market Value of the Leased Property at such time (such percentage, the “ Land Value Percentage ” for the Leased Property; the “ Improvements Value Percentage ” for the Leased Property shall be 100% minus the Land Value Percentage). If the Leased Property is sold on the Return Date in accordance with the terms of Section 22.2, for purposes of calculating the Break Even Price (Improvements) and the Break Even Price (Land) set forth in Section 22.4(a)(i), the Lease Balance shall be allocated between the Site and Improvements by multiplying the then outstanding Lease Balance (the original Lease Balance minus any Qualified Prepayments) times (A) the Improvements Value Percentage for the Break Even Price (Improvements) calculation and (B) the Land Value Percentage for the Break Even Price (Land) calculation. For determining the ratio described above or for determining the Fair Market Value of the Leased Property or any other amount which may, pursuant to any provision of any Operative Document, be determined by an appraisal procedure, the Lessor and the Lessee shall use the following procedure (the “ Valuation Procedure ”). The Lessor and the Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Valuation Procedure under the applicable section of this Lease and, if they cannot agree within ten (10) days, then the Lessor shall order a valuation to be issued by an independent, qualified appraiser or licensed broker with at least ten years of experience in the commercial real estate market or commercial mortgage loan market in and around Fremont, CA which shall promptly but within fifteen (15) days

 

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determine the Fair Market Value of the respective Leased Properties including an appraisal of the related Site and the Improvements. The fees and expenses of the appraiser appointed by the Lessor shall be paid by the Lessee.

SECTION 22.4. Failure to Sell Leased Property.

(a) If the Leased Property shall not have been sold on or prior to the Return Date, in accordance with and subject to the provisions of this Article XXII, then the Lessee and the Lessor hereby agree as follows:

(i) the Lessee shall pay or shall cause to be paid to the Lessor, as Supplemental Rent, on the Return Date, in addition to the Sale Proceeds, an amount equal to the Recourse Deficiency Amount plus all other Rent then due under this Lease and the other Operative Documents or, in the event a Default or Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) shall have occurred and be continuing on such date, the Break Even Price and, in the case where the Break Even Price is paid, the Lessor shall convey to the Lessee or its designee the Leased Property in accordance with Section 23.11; and

(ii) at the option of the Lessor, if the Lessee has not paid the Break Even Price as set forth in Section 22.4(a)(i) above, the Lessee shall be required to continue using commercially reasonable efforts as non-exclusive agent for the Lessor to sell the Leased Property in accordance with Sections 22.1 and 22.2 for the period (the “ Extended Remarketing Period ”) commencing on the Return Date, and ending on the earliest of (w) the date occurring twenty-fourth (24 th ) months following the Return Date, (x) the sale of the Leased Property in accordance with the provisions of Sections 22.1 and 22.2 or such earlier date as the Lessor has received payment in full of the Break Even Amount, (y) the delivery of a written notice from the Lessor to the Lessee at any time terminating this Lease, which notice shall indicate that such termination is being made pursuant to this Section 22.4(a)(ii) and the date such termination shall be effective, and (z) the delivery of a written notice from the Lessee to the Lessor pursuant to which the Lessee notifies the Lessor of its election to terminate the Extended Remarketing Period. The notice given by the Lessee pursuant to Section 22.4(a)(ii)(z) shall indicate that it is being made pursuant to Section 22.4(a)(ii)(z) and shall set forth the date of termination of the Extended Remarketing Period; provided, however, in no event shall such effective date occur prior to the twenty-fourth (24 th ) month following the Return Date. On the last day of the Extended Remarketing Period, if the Leased Property has not been sold during the Extended Remarketing Period in accordance with Section 22.2, the Lessee shall also make the payments required under Section 22.4(a), to the extent not already paid under such Section. Nothing in this Section 22.4(a)(ii) shall adversely affect any other rights the Lessor may have to terminate this Lease pursuant to any other Section of this Lease or the Lessor’s right to pursue any remedy hereunder as a result of an Event of Default arising as a result of the Lessee’s failure to comply with the requirements set forth herein including pursuant to Article XVII or the Lessee’s obligation to pay amounts arising under Article VII of the Participation Agreement.

 

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(b) Following the expiration of the Extended Remarketing Period (or, if not so extended by Lessor, following the Return Date) and the absence of any sale of the Leased Property, the Lessor and Lessee will use commercially reasonable efforts to agree upon the Fair Market Value of the Leased Property. If the Lessor and Lessee are unable to agree upon the Fair Market Value of the Leased Property, Lessor shall order a valuation of the Fair Market Value of the Leased Property. Promptly after receipt of such valuation which establishes the Fair Market Value of Leased Property, Lessor shall pay to Lessee an amount equal to the lesser of (A) the Recourse Deficiency Amount paid by the Lessee in accordance with the Section 22.4(a)(i) and (B) the amount by which the Fair Market Value of the Leased Property exceeds the remaining Break Even Price (Land) and Break Even Price (Improvements), as allocated using a Valuation Procedure, less any Force Majeure Losses (the lower of (A) and (B) being the “ Expiration True-Up ”).

(c) The Lessor may sell or lease the Leased Property and the Lessor’s other interest in and to the Leased Property to any third party at such reasonable times and for such amounts as the Lessor deems commercially reasonable and appropriate in order to maximize the Lessor’s opportunity to recover the Lease Balance. If the Lessee returns the Leased Property to the Lessor in accordance with this Section 22.4 and, following the expiration of the Extended Remarketing Period, the Lessor subsequently sells the Leased Property for cash Sale Proceeds, Sale Proceeds shall be applied by the Lessor in the following order of priority:

(i) first , to the Lessor, Sale Proceeds shall be applied to any fees, costs, expenses, Taxes or other loss incurred by it (to the extent not previously reimbursed);

(ii) second , to the Lessor, Sale Proceeds shall be applied to the Lease Balance until the Lease Balance (excluding Force Majeure Losses, if any) is paid in full ( provided that , all costs and expenses arising from or related to the Leased Property which accrue after the later of the Return Date and the date the Lessee ceases to occupy the Leased Property shall be excluded from the Lease Balance for purposes of this Section 22.4(c)(ii));

(iii) third , to the Lessee, Sale Proceeds shall be applied to the Recourse Deficiency Amount ( less the Expiration True-Up), if any, to the extent such amounts were paid by the Lessor to the Lessee in accordance with Section 22.4(b);

(iv) fourth , to the Lessor, Sale Proceeds shall be applied to Force Majeure Losses and, to the extent not previously paid to the Lessor pursuant to clause (i) or clause (ii) above, to any other amounts payable to the Lessor pursuant to any expense reimbursement or indemnification by the Lessee pursuant to the provisions of the Operative Documents;

(v) fifth , to the Lessor, Sale Proceeds shall be applied to any costs or expenses excluded from the Lease Balance as a result of the proviso in Section 22.4(c)(ii) above;

(vi) sixth , to the Lessor, Sale Proceeds shall be applied to all other amounts, if any, payable by the Lessee to the Lessor under the Operative Documents, to the extent not previously paid to the Lessor pursuant to clauses (i), (ii), (iv) or (v) above; and

 

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(vii) seventh , to the Lessee, the balance, if any, of any Sale Proceeds shall be distributed to, or as directed by, the Lessee.

(d) The Lessor’s appointment of the Lessee as the Lessor’s non-exclusive agent to use commercially reasonable efforts to obtain the highest all-cash price for the purchase of the Leased Property and the Lessor’s interest in the Leased Property shall not restrict the Lessor’s right to market or lease the Leased Property and the Lessor’s interest in the Leased Property or to retain one or more sales agents or brokers (with the costs and expenses thereof being paid out of the Sale Proceeds, as provided in Sections 22.1(a) and 22.3(a) hereof).

(e) the Lessor reserves all rights under this Lease and the other Operative Documents arising out of the Lessee’s breach of any provisions of this Lease (including this Article XXII), whether occurring prior to, on or after the Return Date, including the Lessee’s breach of any of its obligations under this Article XXII, including the right to sue the Lessee for damages.

(f) To the greatest extent permitted by Applicable Law, the Lessee hereby unconditionally and irrevocably waives, and releases the Lessor from, any right to require the Lessor at any time prior to the Return Date or the expiration of the Extended Remarketing Period, as applicable, to market the Leased Property and the Lessor’s other interest in and to the Leased Property at all or for any minimum purchase price or on any particular terms and conditions, the Lessee hereby agrees that if the Lessee shall elect or shall be deemed to have elected the Return Option, its ability to sell the Leased Property and the Lessor’s other interest in and to the Leased Property on or prior to the Return Date, and to cause any Person to submit a bid to the Lessor pursuant to Section 22.1 shall constitute full and complete protection of the Lessee’s interest hereunder.

(g) During the period following Lessee’s exercise of the Return Option, the obligation of Lessee to pay Rent with respect to the Leased Property (including the installment of Rent due on the Return Date) shall continue undiminished; provided that such amounts subsequent to the Return Date (assuming the Lessee has returned the property to the Lessor) shall accrue and be payable out of the Sale Proceeds of any sale in accordance with Section 22.4(c)(v).

SECTION 22.5. Surrender and Return.

(a) Upon the expiration or earlier termination of the Lease Term, and provided that Lessee, if so entitled, has not exercised its option to purchase the Leased Property, Lessee shall peaceably leave and surrender and return the Leased Property to Lessor in the same condition in which the Leased Property existed on the Closing Date and such subsequent date on which any Alterations that constitute part of the Improvements were constructed, except as completed, repaired, rebuilt, restored, altered or added to as required by or permitted by any provision of this Lease (ordinary wear and tear excepted). Lessee shall remove from the Leased Property on or prior to such expiration or earlier termination all property situated thereon which is not the property of Lessor and the Leased Property shall be broom clean and Lessee shall repair any damage caused by such removal. Property not so removed shall become the property of Lessor and Lessor may cause such property to be removed from the Leased Property and disposed of,

 

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and Lessee shall pay (without right of reimbursement out of gross sale proceeds) the reasonable cost of any such removal and disposition and of repairing any damage caused by such removal.

(b) Except for surrender upon the expiration or earlier termination of the Lease Term hereof, no surrender to Lessor of this Lease or of the Leased Property shall be valid or effective unless agreed to and accepted in writing by Lessor.

(c) Without limiting the generality of the foregoing, upon the surrender and return of the Leased Property to Lessor pursuant to this Section 22.5, the Leased Property shall be (w) capable of being immediately utilized by a third-party purchaser or third-party lessee without further inspection, repair, replacement, alterations or improvements, licenses, permits, or approvals, except for any of the foregoing required solely by virtue of the change in ownership (other than to Lessor), use or occupancy of the Leased Property, (x) in compliance with all Applicable Laws including any of the foregoing required by virtue of a change in ownership, use or occupancy of the Leased Property other than to or by Lessee, (y) subject to any Shared Use Agreement, Appurtenant Rights and Restrictions or other cross easement agreement as may be necessary to comply with Applicable Laws, to make any such property marketable and to increase the aggregate value of the Leased Property and the other Sites, and (z) free and clear of any Lien. Until the Leased Property has been surrendered and returned to Lessor in accordance with the provisions of this Section 22.5, Lessee shall continue to pay Lessor all Rent due hereunder.

(d) Lessee acknowledges and agrees that a breach of any of the provisions of this Section 22.5 may result in damages to Lessor that are difficult or impossible to ascertain and that may not be compensable at law. Accordingly, upon application to any court of equity having jurisdiction over the Leased Property or the Lessee, Lessor shall be entitled to a decree against Lessee requiring specific performance of the covenants of Lessee set forth in this Section 22.5.

(e) Upon the request of the Lessor, Lessee shall continue to maintain its insurance policies for the Leased Property, to the extent permitted by such policies, provided that Lessor pays or reimburses Lessee for the pro rata cost thereof.

ARTICLE XXIII

MISCELLANEOUS

SECTION 23.1. Binding Effect; Successors and Assigns; Survival.

The terms and provisions of this Lease, and the respective rights and obligations hereunder of the Lessor and the Lessee shall be binding upon them and their respective successors, legal representatives and assigns (including, in the case of the Lessor, any Person to whom the Lessor may transfer the Leased Property or any interest therein in accordance with the provisions of the Operative Documents), and inure to their benefit and the benefit of their respective permitted successors, legal representatives and assigns (including, in the case of the Lessor, any Person to whom the Lessor may transfer the Leased Property or any interest therein in accordance with the provisions of the Operative Documents).

 

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SECTION 23.2. Severability.

Any provision of this Lease that shall be prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction, and the Lessee shall remain liable to perform its obligations hereunder except to the extent of such unenforceability. To the extent permitted by Applicable Laws, the Lessee hereby waives any provision of law that renders any provision hereof prohibited or unenforceable in any respect.

SECTION 23.3. Notices.

Unless otherwise specified herein, all notices, requests, demands or other communications to or upon the respective parties hereto shall be in writing and shall be delivered and shall be deemed to have been given in accordance with Section 8.3 of the Participation Agreement.

SECTION 23.4. Amendment; Complete Agreements.

Neither this Lease or any other Operative Document nor any terms hereof or thereof may be amended, supplemented or modified except in accordance with the provisions of the Participation Agreement. This Lease, together with the other Operative Documents, is intended by the parties as a final expression of their agreement and as a complete and exclusive statement of the terms thereof, all negotiations, considerations and representations between the parties having been incorporated herein and therein. No course of prior dealings between the parties or their officers, employees, agents or Affiliates shall be relevant or admissible to supplement, explain, or vary any of the terms of this Lease or any other Operative Document. Acceptance of, or acquiescence in, a course of performance rendered under this or any prior agreement between the parties or their Affiliates shall not be relevant or admissible to determine the meaning of any of the terms of this Lease or any other Operative Document. No representations, undertakings, or agreements have been made or relied upon in the making of this Lease other than those specifically set forth in the Operative Documents.

SECTION 23.5. Headings.

The Table of Contents and headings of the various Articles and Sections of this Lease are for convenience of reference only and shall not modify, define or limit any of the terms or provisions hereof.

SECTION 23.6. Original Executed Counterpart.

The single executed original of this Lease marked as Counterpart No. 1 shall be the “ original executed counterpart ” of this Lease. To the extent that this Lease constitutes chattel paper, as such term is defined in the Uniform Commercial Code as in effect in any applicable jurisdiction, no security interest in this Lease may be created through the transfer or possession of any counterpart other than the “ original executed counterpart .”

 

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SECTION 23.7. Governing Law.

This Lease has been delivered in, and shall in all respects be governed by and construed in accordance with the laws of, the State of New York, without regard to conflicts of laws principles (except Section 5-1401 of the New York General Obligations Law), including all matters of construction, validity and performance, except as to matters relating to the perfection of the security interests hereunder and the exercise of rights and remedies with respect thereto, which shall be governed by and construed in accordance with the laws of the State of California.

SECTION 23.8. No Joint Venture.

Any intention to create a joint venture or partnership relation hereunder or pursuant to any other Operative Document between the Lessor and the Lessee is hereby expressly disclaimed.

SECTION 23.9. No Accord and Satisfaction.

The acceptance by the Lessor of any sums from the Lessee (whether as Basic Rent or otherwise) in amounts which are less than the amounts due and payable by the Lessee hereunder is not intended, nor shall be construed, to constitute an accord and satisfaction of any dispute between the Lessor and the Lessee regarding sums due and payable by the Lessee hereunder, unless the Lessor specifically deems it as such in writing.

SECTION 23.10. Survival.

The termination of this Lease pursuant to Section 18.1 shall in no event relieve the Lessee of its liabilities and obligations hereunder which accrued prior to such termination, all of which shall survive any such termination. The extension of any applicable statute of limitations by the Lessee, the Lessor or any other Indemnitee shall not affect such survival.

SECTION 23.11. Transfer of Leased Property.

Except as may be applicable under Article XXII, any transfer of the Leased Property pursuant to this Lease shall be at the Lessee’s expense. Upon receipt by the Lessor of payment in full of the Break Even Price pursuant to the applicable provision of this Lease, the Leased Property shall be transferred to the Lessee or any designee it may identify.

Any transfer of the Lessor’s interest in and to the Leased Property pursuant to this Lease shall be transferred on an “as is, where is, with all faults” basis, without covenants or warranties of title and without recourse, representation or warranty of any kind, other than with respect to the Lessor, the absence of Lessor Liens, and together with the due assumption by the Lessee (or its designee), of, and due release of the Lessor from, all obligations relating to the Leased Property. In connection with any transfer to an independent third party, the Lessee shall, or shall ensure that its designee shall, execute and deliver such documents, certificates and estoppels as may be required to facilitate the transfer of the Leased Property. Any provision in this Lease or other Operative Document to the contrary notwithstanding, no transfer of the Leased Property to the Lessee or to a third party buyer pursuant to the Return Option shall be made until the Lessor has received all Rent and other amounts then due and owing by the Lessee hereunder and under

 

39


the other Operative Documents. At or subsequent to the transfer or return of all or any of the Leased Property to a third party buyer pursuant to the Return Option, the Lessee will provide the Lessor with such lien and title searches as the Lessor may reasonably request to demonstrate to the Lessor’s satisfaction that the Leased Property is subject to no liens other than Permitted Liens as described in clauses (a) or (b) of the definition thereof. Notwithstanding anything contained herein or in the other Operative Documents to the contrary, any obligation of the Lessor to transfer any assets to the Lessee shall be satisfied by a transfer of such assets to any designee selected by it.

SECTION 23.12. Enforcement of Certain Warranties.

Unless an Event of Default shall have occurred and be continuing, the Lessor authorizes the Lessee (directly or through agents), without assuming any responsibility for the existence of such warranty or the validity of the authorization granted hereunder at the Lessee’s expense, to assert, during the Lease Term, all of the Lessor’s rights (if any) under any applicable warranty and any other claim that the Lessee or the Lessor may have under the warranties provided in connection with the Improvements and the Lessor agrees to cooperate, at the Lessee’s expense, with the Lessee and its agents in asserting such rights. Any amount recovered by the Lessee under any such warranties shall be retained by or paid over to the Lessee, subject to Section 23.13.

SECTION 23.13. Security Interest in Funds.

As long as a Material Default or Event of Default shall have occurred and be continuing, any amount that would otherwise be payable to the Lessee under the Operative Documents shall be paid to or retained by the Lessor (including amounts to be paid to the Lessee pursuant to Article XIII or Section 23.12) as security for the performance by the Lessee in full of its obligations under this Lease and the other Operative Documents and, provided an Event of Default exists, it may be applied to the obligations of the Lessee hereunder and under the other Operative Documents and distributed pursuant to Section 18.2. At such time as no Material Default or Event of Default shall be continuing, such amounts, net of any amounts previously applied to the Lessee’s obligations hereunder or under any other Operative Documents, shall be paid to the Lessee. Any such amounts which are held pending payment to the Lessee or application hereunder shall be invested by the Lessor as directed from time to time in writing by the Lessee, and at the expense and risk of the Lessee, in Permitted Investments. Any gain (including interest received) realized as the result of any such investment (net of any fees, commissions and other expenses, if any, incurred in connection with such investment) shall be applied from time to time in the same manner as the principal invested. Lessor shall not be liable for any losses on such investments or for any failure to make any investment,

SECTION 23.14. Submission to Jurisdiction.

EACH OF THE LESSOR AND THE LESSEE IRREVOCABLY AND UNCONDITIONALLY:

(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS LEASE, OR FOR RECOGNITION AND

 

40


ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, AND APPELLATE COURTS FROM ANY THEREOF;

(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDINGS MAY BE BROUGHT TO SUCH COURTS, AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND AGREES NOT TO PLEAD OR CLAIM THE SAME;

(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS SET FORTH ON SCHEDULE II TO THE PARTICIPATION AGREEMENT OR AT SUCH OTHER ADDRESS OF WHICH THE OTHER PARTIES HERETO SHALL HAVE BEEN NOTIFIED PURSUANT TO SECTION 8.3 OF THE PARTICIPATION AGREEMENT; AND

(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION.

SECTION 23.15. Jury Trial.

EACH OF THE LESSOR AND THE LESSEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS LEASE OR ANY OTHER OPERATIVE DOCUMENT OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS LEASE OR ANY OTHER OPERATIVE DOCUMENT AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.

SECTION 23.16. Payments.

All payments to be made by the Lessee hereunder shall be made to the Lessor in Dollars in immediately available and freely transferable funds at the place of payment, all such payments to be paid without setoff, counterclaim or reduction and without deduction for, and free from, any and all present or future taxes, levies, imposts, duties, fees, charges, deductions, withholding or liabilities with respect thereto or any restrictions or conditions of any nature. If the Lessee is required by law to make any deduction or withholding on account of any tax or other withholding or deduction from any sum payable by the undersigned hereunder, the Lessee shall pay any such tax or other withholding or deduction and shall pay such additional amount necessary to ensure that, after making any payment, deduction or withholding, the Lessor shall

 

41


receive and retain (free of any liability in respect of any payment, deduction or withholding) a net sum equal to what it would have received and so retained hereunder had no such deduction, withholding or payment been required to have been made, which payment or withholding is made subject to the limitations set forth in Sections 7.2(a)(iii) and 7.4 of the Participation Agreement, reimbursement obligations of Indemnitees set forth in Sections 7.2(a)(iii), 7.2(e) and 7.2(f) of the Participation Agreement and other rights of Lessee set forth in Sections 7.2(b)(i), 7.2(e), 7.2(f) and 7.4 of the Participation Agreement.

[Signature Pages Follow]

 

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IN WITNESS WHEREOF, the undersigned have each caused this Lease to be duly executed and delivered by their respective representations thereunto duly authorized as of the day and year first above written.

 

BTMU CAPITAL LEASING & FINANCE, INC.,

AS L ESSOR

By:  

/s/ Michael D. Doyle

Name:   Michael D. Doyle
Title:   President

 

[THIS IS COUNTERPART NO.      OF      ORIGINALLY

EXECUTED COUNTERPARTS]


LAM RESEARCH CORPORATION,
AS L ESSEE

By:  

/s/ Odette Go

Name:   Odette Go
Title:   Treasurer

 

[THIS IS COUNTERPART NO.      OF      ORIGINALLY

EXECUTED COUNTERPARTS]


Schedule A

Recourse Deficiency Amount Percentages

 

1. Maximum Remarketing Obligation (Improvements): 83.7%

 

2. Maximum Remarketing Obligation (Land): $5,791,000


Exhibit A

Description of Site

Real Property in the City of Fremont, County of Alameda, State of California and described as follows:

BEING A PORTION OF LOT 4, AS SHOWN ON THE PARCEL MAP 5001 FILED IN BOOK 168 OF MAPS, AT PAGES 24 THROUGH 26, ALAMEDA COUNTY RECORDS, DESCRIBED AS FOLLOWS:

BEGINNING ON THE SOUTHERLY LINE OF CUSHING PARKWAY AT THE MOST NORTHEASTERLY CORNER OF SAID LOT 4;

THENCE FROM SAID POINT OF BEGINNING, ALONG THE EASTERLY AND SOUTHERLY LINE OF SAID LOT 4, THE FOLLOWING TWO COURSES:

SOUTH 0° 35’ 19 EAST, 646.04 FEET; AND

SOUTH 85° 58’ 33 WEST, 354.60 FEET;

THENCE LEAVING THE SOUTHERLY LINE OF SAID LOT 4, THE FOLLOWING THREE (3) COURSES:

NORTH 7°11’ 33 WEST, 353.79 FEET;

NORTH 82° 48’ 27 WEST, 31.00 FEET; AND

NORTH 7° 11’ 33 WEST, 245.00 FEET TO THE BEGINNING OF A NON-TANGENT CURVE ON THE SOUTHERLY LINE OF CUSHING PARKWAY, FROM WHICH POINT A RADIAL LINE BEARS NORTH 8° 37’ 08 WEST;

THENCE EASTERLY ALONG SAID SOUTHERLY LINE OF CUSHING PARKWAY AND SAID CURVE, THROUGH A CENTRAL ANGLE OF 7° 21’ 45, HAVING A RADIUS OF 2044.00 FEET AND AN ARC DISTANCE OF 262.65 FEET;

THENCE CONTINUING ALONG SAID SOUTHERLY LINE OF CUSHING PARKWAY, NORTH 82° 48’ 27 EAST, 197.93 FEET TO THE POINT OF BEGINNING.

Exhibit 10.26

Fremont 4         

PLEDGE AGREEMENT

(Fremont 4)

BETWEEN

LAM RESEARCH CORPORATION

(“LRC”)

AND

BTMU CAPITAL LEASING & FINANCE, INC.

(“BTMUCLF”)

December 31, 2013


TABLE OF CONTENTS

 

               Page  
1.   

DEFINITIONS AND INTERPRETATION

     2   
  

(A)

  

Definitions

     2   
  

(B)

  

Rules of Interpretation

     8   
  

(C)

  

Attachments

     8   
2.   

PLEDGE AND GRANT OF SECURITY INTEREST

     9   
3.   

PROVISIONS CONCERNING THE DEPOSIT TAKERS

     9   
  

(A)

  

Deposit Taker Agreements

     9   
  

(B)

  

Qualification of Deposit Takers Generally

     10   
  

(C)

  

Substitutions for Disqualified Deposit Takers

     10   
  

(D)

  

Other Voluntary Substitutions of Deposit Takers

     10   
  

(E)

  

Delivery of Deposit Taker’s Agreements by LRC and BTMUCLF

     11   
  

(F)

  

Constructive Possession of Collateral

     11   
  

(G)

  

Attempted Setoff by Deposit Taker

     11   
4.   

DELIVERY AND MAINTENANCE OF COLLATERAL

     11   
  

(A)

  

Delivery of Cash Collateral by LRC

     12   
  

(B)

  

Status of the Deposit Accounts Under the Reserve Requirement Regulations

     12   
  

(C)

  

Acknowledgment by LRC that Requirements of this Agreement are Commercially Reasonable

     12   
5.   

WITHDRAWAL OF COLLATERAL

     12   
  

(A)

  

Withdrawal of Cash Collateral Upon the Occurrence and During the Continuance of an Event of Default

     12   
  

(B)

  

Withdrawal and Application of Cash Collateral to Reduce or Satisfy the Secured Obligations to BTMUCLF

     12   
  

(C)

  

Withdrawal and Return of Cash Collateral Following Satisfaction of all Secured Obligations

     13   
  

(D)

  

No Other Right to Require or Make Withdrawals

     13   
  

(E)

  

BTMUCLF’s Covenant Not to Make Unauthorized Withdrawals

     13   
6.   

REPRESENTATIONS AND COVENANTS OF LRC

     13   
  

(A)

  

Representations of LRC

     13   
  

(B)

  

Covenants of LRC

     15   
7.   

AUTHORIZED ACTION BY BTMUCLF

     16   

 

-i-


TABLE OF CONTENTS

(continued)

 

               Page  
8.   

DEFAULT AND REMEDIES

     16   
  

(A)

  

Remedies

     16   
  

(B)

  

Recovery Not Limited

     18   
9.   

MISCELLANEOUS

     19   
  

(A)

  

Payments by LRC to BTMUCLF

     19   
  

(B)

  

Payments by BTMUCLF to LRC

     19   
  

(C)

  

Cumulative Rights, etc.

     19   
  

(D)

  

Survival of Agreements

     20   
  

(E)

  

Other Liable Party

     20   
  

(F)

  

Termination

     20   

 

-ii-


PLEDGE AGREEMENT

(FREMONT 4)

This PLEDGE AGREEMENT (Fremont 4) (this “ Agreement ”), dated as of December 31, 2013 (the “ Effective Date ”), is made by and between BTMU CAPITAL LEASING & FINANCE, INC. (“ BTMUCLF ”), a Delaware corporation, and LAM RESEARCH CORPORATION (“ LRC ”), a Delaware corporation.

RECITALS

A. LRC, as lessee, and BTMUCLF, as lessor, are parties to that certain Amended and Restated Lease Agreement (Fremont 4), dated of even date herewith (as amended, supplemented or otherwise modified from time to time pursuant thereto, the “Lease” ), pursuant to which the Lessee has agreed to lease from the Lessor, and the Lessor has agreed to lease to the Lessee, the Leased Property described therein.

B. LRC and BTMUCLF are also parties to that certain Participation Agreement, dated of even date herewith (as amended, supplemented or otherwise modified, the “ Participation Agreement ”) pursuant to which BTMUCLF commits to advance funds for the acquisition of Site Fremont 4 and the Existing Improvements thereon and the Personal Property used thereon subject to the terms and conditions set forth therein.

C. By this Agreement, BTMUCLF and LRC desire to establish the terms and conditions upon which LRC is pledging cash collateral for its obligations to BTMUCLF under the Lease and the Participation Agreement.

AGREEMENTS

 

1. DEFINITIONS AND INTERPRETATION.

(A) Definitions . As provided in the recitals above, all capitalized terms used in this Agreement which are defined in the Participation Agreement and not otherwise defined herein shall have the same meanings herein as set forth in Appendix I to the Participation Agreement. All terms used in this Agreement which are defined in the UCC and not otherwise defined herein shall have the same meanings herein as set forth therein, except where the context otherwise requires. As used in this Agreement, the following terms shall have the following respective meanings:

Account Office ” means, with respect to any Deposit Account maintained by any Deposit Taker, the office of such Deposit Taker in California or New York at which such Deposit Account is maintained as specified in the applicable Deposit Taker’s Agreement.

BTMU ” means The Bank of Tokyo-Mitsubishi UFJ, Ltd.

BTMU Downgrade Event ” means BTMU or any successor of BTMU fails to maintain a debt rating of at least (i) BBB- (in the case of long term debt) by Standard and Poor’s Corporation (the “S&P Rating” ), and (ii) Baa3 (in the case of long term debt) by

 

2


Moody’s Investor Service, Inc. (the “Moody Rating” ) and LRC shall elect to require that the Collateral held by BTMU to be transferred to an Eligible Deposit Taker pursuant to Section 3(C) hereof, provided that (i) such transferee shall satisfy the requirements of an Eligible Deposit Taker and (ii) LRC, Lessor and such replacement Eligible Deposit Taker have entered into a control agreement in form reasonably acceptable to all parties thereto. The parties hereto believe that it is improbable that the ratings systems used by Standard and Poor’s Corporation and by Moody’s Investor Service, Inc. will be discontinued or changed, but if such ratings systems are discontinued or changed, LRC shall be entitled to select and use a comparable ratings systems as a substitute for the S&P Rating or the Moody Rating, as the case may be, for purposes of determining the status of BTMU or such successor as an Eligible Deposit Taker.

BTMUCLF ” shall have the meaning given to that term in the introductory paragraph hereof.

Cash Collateral ” means (i) all money of LRC which LRC delivers to BTMUCLF or as directed by it for deposit in the Deposit Accounts maintained by the Deposit Takers pursuant to this Agreement, and (ii) all amounts on deposit in any of the Deposit Accounts from time to time, which have not been withdrawn or applied to Secured Obligations as provided in this Agreement.

Clearing System ” means the Depository Trust Company (“DTC”) and such other clearing or safekeeping system that may from time to time be used in connection with transactions relating to or the custody of any Securities, and any depository for any of the foregoing.

Collateral ” has the meaning indicated in Paragraph 2.

“Control Agreement” means any future blocked account control agreement that may be used by a Deposit Taker following any credit impairment as provided in the definition of Eligible Deposit Taker.

“Default” means any Event of Default and any default, event or condition which would, with the giving of any requisite notices and the passage of any requisite periods of time, constitute an Event of Default.

“Deposit Account” means a deposit account maintained by any Deposit Taker into which Cash Collateral has been or may in the future be deposited as provided in this Agreement.

“Deposit Taker” means, for BTMUCLF or any Participant, an Eligible Deposit Taker designated by it to act as the Deposit Taker for it under this Agreement. BTMUCLF has already designated BTMU as the Deposit Taker for BTMUCLF hereunder. Any Participant which is an Eligible Deposit Taker will be deemed to have designated itself to act as the Deposit Taker for it, unless some other designation is expressly set forth in this Agreement. Any Participant which is not an Eligible Deposit Taker will be expected to designate BTMU or, to the extent BTMU is not an Eligible Deposit Taker, another Person

 

3


which is an Eligible Deposit Taker (as reasonably approved by LRC) prior to any delivery of Cash Collateral by LRC pursuant to this Agreement. It is also understood, however, that each of BTMUCLF and any Participants, for itself only, may from time to time designate another Eligible Deposit Taker (as reasonably approved by LRC) as provided in subparagraphs 3(C) and 3(D) below.

“Deposit Taker Prerequisites” means, with respect to any Deposit Taker: (1) the requirement that such Deposit Taker establish a Deposit Account and provide to LRC and BTMUCLF the account number and other information regarding such Deposit Account which they must have to complete and submit a Deposit Taker’s Agreement covering such Deposit Account; and (2) the requirement that such Deposit Taker accept, execute and return a Deposit Taker’s Agreement covering each Deposit Account to be maintained by such Deposit Taker. It is understood that any Deposit Taker’s refusal or failure to satisfy the Deposit Taker Prerequisites will cause it to be a Disqualified Deposit Taker.

“Deposit Taker’s Agreement” means a completed Deposit Agreement in the form attached as Exhibit A , which specifically identifies a Deposit Account in which a Deposit Taker shall hold Cash Collateral delivered to it pursuant to this Agreement.

“Disqualified Deposit Taker” means any Person that BTMUCLF or any Participant has designated as a Deposit Taker, but that has not satisfied or no longer satisfies the following requirements:

(a) With respect to each Deposit Account in which such Person holds or will hold Collateral delivered to it pursuant to this Agreement, such Person must have received from BTMUCLF and LRC an executed Deposit Taker’s Agreement which specifically identifies such Deposit Account and which designates, at such Person’s election, an Account Office with respect to such Deposit Account in New York or California.

(b) Such Person must have executed and returned to BTMUCLF a Deposit Taker’s Agreement with respect to each such Deposit Account and must have complied with its Deposit Taker’s Agreements, and the representations set forth therein with respect to such Person must continue to be true and correct (except that such Person will not become a Disqualified Deposit Taker because of its failure to comply with its Deposit Taker’s Agreement, or because any such representation does not continue to be true and correct, if such failure is cured and all such representations are made true and correct in all material respects before the earlier of (i) thirty days after the Deposit Taker is notified thereof, and (ii) any date upon which BTMUCLF’s security interest in any Collateral maintained or held by such Deposit Taker is not a Qualified Pledge by reason of such failure to comply or such representation not being true and correct).Such Person must have complied in all material respects with the provisions in this Agreement applicable to Deposit Takers.

 

4


(c) Such Person must be an Eligible Deposit Taker.

“Eligible Deposit Taker” means:

(1) (a) BTMU or any successor of BTMU, acting through any branch, office or agency in New York or California that can lawfully maintain a Deposit Account as a Deposit Taker hereunder so long as no BTMU Downgrade Event shall occur or (b) Union Bank, N.A. or any successor of Union Bank, N.A., acting through any branch, office or agency in New York or California that can lawfully maintain a Deposit Account as a Deposit Taker hereunder so long as no Union Bank Downgrade Event shall occur;

(2) any Participant or Affiliate of a Participant that is (a) a commercial bank, organized under the laws of the United States of America or a state thereof or under the laws of another country which is doing business in the United States of America, (b) authorized to maintain deposit accounts for others through Account Offices in New York or California (as specified in its Deposit Taker’s Agreement) so long as no Participant Downgrade Event shall occur; or

(3) such Person that (a) has been designated by BTMUCLF or a Participant to act as the Deposit Taker for it under this Agreement, (b) is one of the fifty largest (measured by total assets) U.S. banks, or one of the one hundred largest (measured by total assets) banks in the world, (c) is acting through any branch, office or agency in New York or California that can lawfully maintain a Deposit Account as a Deposit Taker hereunder, and (d) has a debt ratings of at least (i) A- (in the case of long term debt) and A-1 (in the case of short term debt) or the equivalent thereof by Standard and Poor’s Corporation (the “S&P Rating” ), and (ii) A3 (in the case of long term debt) and P-1 (in the case of short term debt) or the equivalent thereof by Moody’s Investor Service, Inc. (the “Moody Rating” ), the parties hereto believing that it is improbable that the ratings systems used by Standard and Poor’s Corporation and by Moody’s Investor Service, Inc. will be discontinued or changed, but if such ratings systems are discontinued or changed, LRC shall be entitled to select and use a comparable ratings systems as a substitute for the S&P Rating or the Moody Rating, as the case may be, for purposes of determining the status of any bank as an Eligible Deposit Taker.

If at any time a Deposit Taker fails to satisfy the requirements of this definition above, such Deposit Taker shall cease being an Eligible Deposit Taker and LRC may, at its option, require that the Collateral held by such ineligible Deposit Taker be transferred to an Eligible Deposit Taker, provided that (i) such Eligible Deposit Taker satisfies the requirements of this definition above and (ii) LRC, Lessor and such replacement Eligible Deposit Taker have entered into a control agreement in form reasonably acceptable to all parties thereto.

 

5


“Event of Default” means the occurrence of any of the following:

(a) an Event of Default as defined in the Lease;

(b) any failure by LRC to provide funds as and when required by subparagraph 4(A) of this Agreement or under the Deposit Taker’s Agreement, on the date due;

(c) the failure of the pledge or security interest contemplated herein in any Deposit Account or Cash Collateral to be a Qualified Pledge (regardless of the characterization of any Deposit Accounts or Cash Collateral as deposit accounts, instruments or general intangibles under the UCC); unless, within five days after LRC becomes aware of such failure, LRC both (1) notifies BTMUCLF of such failure, and (2) cures such failure;

(d) the failure of any representation herein by LRC to be true (other than a failure described in another clause of this definition of Event of Default) and LRC and LRC shall fail to cure the underlying facts causing such representation, warranty, certification or statement to be incorrect in all material respects for a period of ten (10) Business Days after the earlier of Actual Knowledge or notice thereof;

(e) the failure of any representation made by LRC in subparagraph 6(A)(1) to be true, if within fifteen days after LRC becomes aware of such failure, LRC does not (1) notify BTMUCLF of such failure, and (2) cure such failure; and

(f) the failure by LRC timely and properly to observe, keep or perform any covenant, agreement, warranty or condition herein required to be observed, kept or performed (other than a failure described in another clause of this definition of Event of Default), if diligent efforts are not being taken by LRC to cure such Default and such failure is not cured within thirty (30) days after the earlier of Actual Knowledge thereof by LRC or receipt of written notice thereof; provided, however, that if such failure is capable of cure but cannot be cured by payment of money or cannot be cured by diligent efforts within such thirty (30) day period but such diligent efforts shall be properly commenced within such thirty (30) day period and LRC is diligently pursuing, and shall continue to pursue diligently remedy of such failure, such cure period shall be extended for an additional period of time in excess of such cure period as may be necessary to cure, not to extend beyond the earlier to occur of (i) the Lease Expiration Date or (ii) one hundred and twenty (120) days after the earlier of Actual Knowledge thereof or written notice thereof having been given to LRC.

“Lien” means, with respect to any property or assets, any right or interest therein of a creditor to secure indebtedness or other obligations of any kind which is owed to him or any other arrangement with such creditor which provides for the payment of such indebtedness or obligations out of such property or assets or which allows him to have such indebtedness or obligations satisfied out of such property or assets prior to the general creditors of any owner thereof, including any lien, mortgage, security interest, pledge,

 

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deposit, production payment, rights of a vendor under any title retention or conditional sale agreement or lease substantially equivalent thereto, tax lien, mechanic’s or materialman’s lien, or any other charge or encumbrance for security purposes, whether arising by law or agreement or otherwise, but excluding any right of setoff which arises without agreement in the ordinary course of business. “Lien” also means any filed financing statement, any registration with an issuer of uncertificated securities, or any other arrangement which would serve to perfect a Lien described in the preceding sentence, regardless of whether such financing statement is filed, such registration is made, or such arrangement is undertaken before or after such Lien exists.

Make Whole Amount ” means the sum of the following:

(1) the amount (if any) by which the Lease Balance exceeds any Recourse Deficiency Amount which was actually received by BTMUCLF on the Base Term Expiration Date in accordance with Articles XXI and XXII of the Lease, together with interest on such excess computed at the Overdue Rate for the period commencing on the Base Term Expiration Date and ending on the date of an Expiration True-Up; plus

(2) any unpaid Base Rent or other amounts due to BTMUCLF pursuant to the Lease or other Operative Documents (except pursuant to Other Lease Documents); plus

(3) BTMUCLF’s Transaction Costs; plus

(4) the amount, but not less than zero, by which (i) all Taxes, insurance premiums and other Claims of every kind suffered or incurred by BTMUCLF (whether or not reimbursed in whole or in part by another Person) with respect to the ownership, operation or maintenance of the Leased Property during the Extended Remarketing Period, exceeds (ii) any rents or other sums collected by BTMUCLF during such period from third parties as consideration for any lease or other contracts made by BTMUCLF that authorize the use and enjoyment of the Leased Property by such parties; together with interest on such excess computed at the Overdue Rate for each day prior to the Base Term Expiration Date.

“Other Liable Party” means any Person, other than LRC, who may now or may at any time hereafter be primarily or secondarily liable for any of the Secured Obligations or who may now or may at any time hereafter have granted to BTMUCLF a Lien against any of its assets to secure any Secured Obligations.

“Participant” means, with respect to the Lease, any Participation Holder as defined in Section 6.4 of the Participation Agreement.

Participant Downgrade Event ” means Participant or any successor of Participant fails to maintain a debt rating of at least (i) BBB- (in the case of long term debt) by Standard and Poor’s Corporation (the “S&P Rating” ), and (ii) Baa3 (in the case of long term debt) by Moody’s Investor Service, Inc. (the “Moody Rating” ) and LRC shall elect to require that the Collateral held by Participant to be transferred to an Eligible Deposit Taker pursuant to Section 3(C) hereof, provided that (i) such transferee shall satisfy the requirements of an Eligible Deposit Taker and (ii) LRC, Lessor and such replacement Eligible Deposit Taker

 

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have entered into a control agreement in form reasonably acceptable to all parties thereto. The parties hereto believe that it is improbable that the ratings systems used by Standard and Poor’s Corporation and by Moody’s Investor Service, Inc. will be discontinued or changed, but if such ratings systems are discontinued or changed, LRC shall be entitled to select and use a comparable ratings systems as a substitute for the S&P Rating or the Moody Rating, as the case may be, for purposes of determining the status of Participant or such successor as an Eligible Deposit Taker.

“Percentage” means with respect to each Participant and the Deposit Taker for such Participant, the percentage obtained by dividing (x) the amount of the outstanding Equity Investment assumed by such Participant pursuant to Section 6.4 of the Participation Agreement by (y) the aggregate amount of the Equity Investment of the Participants. Percentages may be adjusted from time to time as provided in the Participation Agreement or as provided in supplements thereto executed as provided in the Participation Agreement.

“Qualified Pledge” means a pledge or security interest that constitutes a valid, perfected, first priority pledge or security interest.

“Secured Obligations” means and includes all obligations of LRC under the Operative Documents (except with respect to the Other Lease Documents) including, without limitation, (i) LRC’s obligation to pay the Recourse Deficiency Amount as provided in Article XXII of the Lease, (ii) LRC’s obligation to pay the Break Even - Special Land Value as the purchase price for the Leased Property pursuant to Sections 20.1, 20.2 or 21.1(a) of the Lease, and (iv) any damages incurred by BTMUCLF or other amounts due under the Operative Documents (except with respect to the Other Lease Documents) following an Event of Default including any rejection by LRC of the Lease or any other Operative Document (except with respect to the Other Lease Documents) in any bankruptcy, insolvency or similar proceeding.

UCC ” means the Uniform Commercial Code as in effect in the State of New York from time to time, and the Uniform Commercial Code as in effect in any other jurisdiction which governs the perfection or non-perfection of the pledge of and security interests in the Collateral created by this Agreement.

(B) Rules of Interpretation. The rules of interpretation set forth in Appendix I to the Participation Agreement are hereby incorporated by reference.

(C) Attachments. All attachments to this Agreement are a part hereof for all purposes.

Union Bank Downgrade Event ” means Union Bank, N.A. or any successor of Union Bank, N.A. fails to maintain a debt rating of at least (i) BBB- (in the case of long term debt) by Standard and Poor’s Corporation (the “S&P Rating” ), and (ii) Baa3 (in the case of long term debt) by Moody’s Investor Service, Inc. (the “Moody Rating” ) and LRC shall elect to require that the Collateral held by Union Bank, N.A. to be transferred to an Eligible Deposit Taker pursuant to Section 3(C) hereof, provided that (i) such transferee shall satisfy the requirements of an Eligible Deposit Taker and (ii) LRC, Lessor and such

 

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replacement Eligible Deposit Taker have entered into a control agreement in form reasonably acceptable to all parties thereto. The parties hereto believe that it is improbable that the ratings systems used by Standard and Poor’s Corporation and by Moody’s Investor Service, Inc. will be discontinued or changed, but if such ratings systems are discontinued or changed, LRC shall be entitled to select and use a comparable ratings systems as a substitute for the S&P Rating or the Moody Rating, as the case may be, for purposes of determining the status of Union Bank, N.A. or such successor as an Eligible Deposit Taker.

 

2. PLEDGE AND GRANT OF SECURITY INTEREST.

As security for the Secured Obligations, LRC hereby pledges and assigns to BTMUCLF and grants to BTMUCLF a continuing security interest and lien in and against all right, title and interest of LRC in and to the following property, whether now or hereafter existing, whether tangible or intangible, whether presently owned or vested in or hereafter acquired by LRC and wherever the same may be located (collectively and severally, the “Collateral”) :

(a) all Cash Collateral and all Deposit Accounts; and all cash and other assets from time to time held in or on deposit in any Deposit Account and all general intangibles arising from or relating to any Deposit Account or such cash or other assets; and all documents, instruments and agreements evidencing the same; and all extensions, renewals, modifications and replacements of the foregoing; and any interest or other amounts payable in connection therewith; and

(b) all proceeds of the foregoing (including whatever is receivable or received when Collateral or proceeds is invested, sold, collected, exchanged, returned, substituted or otherwise disposed of, whether such disposition is voluntary or involuntary, including rights to payment and return premiums and insurance proceeds under insurance with respect to any Collateral, and all rights to payment with respect to any cause of action affecting or relating to the Collateral).

The pledge, assignment and grant of a security interest made by LRC hereunder is for security of the Secured Obligations only; the parties to this Agreement do not intend that LRC’s delivery or deposit of any Collateral, including the Cash Collateral, as herein provided will constitute an advance payment of any Secured Obligations or liquidated damages, nor do the parties intend that the Collateral increase the dollar amount of the Secured Obligations.

 

3. PROVISIONS CONCERNING THE DEPOSIT TAKERS.

(A) Deposit Taker Agreements . Prior to the Closing, LRC must (1) ask BTMU, as the designated Deposit Taker for BTMUCLF, and each Eligible Deposit Taker designated by any Participant to act as the Deposit Taker for it under this Agreement, to satisfy the Deposit Taker Prerequisites; and (2) execute and provide to BTMUCLF a completed Deposit Taker’s Agreement for BTMUCLF’s execution and delivery to each Deposit Taker. Promptly after receipt of a properly completed Deposit Taker’s Agreement executed by LRC and in form ready to be executed by BTMU or any other Eligible

 

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Deposit Taker named therein, BTMUCLF must execute such Deposit Taker’s Agreement and deliver it to the appropriate Deposit Taker as necessary for the satisfaction of the Deposit Taker Prerequisites.

Without limiting the foregoing, it is understood that (i) BTMUCLF and any Participant may designate BTMU as its Deposit Taker, (ii) any Participant may designate itself or any of its Affiliates as its Deposit Taker so long as the Participant or its Affiliate, as the case may be, is an Eligible Deposit Taker, and (iii) as provided in both the preceding provisions of this subparagraph and in subparagraph 3(E), BTMUCLF and LRC must promptly upon request execute and deliver any properly completed Deposit Taker Agreement requested by BTMUCLF or any Participant to facilitate the designations of Deposit Takers contemplated by this Agreement. If any Participant has not already designated an Eligible Deposit Taker to act as Deposit Taker for it under this Agreement at any time when such a designation is required, then BTMUCLF may make the designation for such Participant; subject, however, to such Participant’s rights under subparagraphs 3(D) and 3(E).

(B) Qualification of Deposit Takers Generally . Notwithstanding anything herein to the contrary, BTMUCLF may decline to deposit or maintain Cash Collateral hereunder with any Disqualified Deposit Taker.

(C) Substitutions for Disqualified Deposit Takers .

(1) Upon learning that any Deposit Taker has become a Disqualified Deposit Taker, LRC or BTMUCLF may request that the party for whom such Disqualified Deposit Taker has been designated a Deposit Taker ( i.e., BTMUCLF or the applicable Participant) (a) designate another Eligible Deposit Taker as its new, substitute Deposit Taker, and (b) direct the substitute to satisfy the Deposit Taker Prerequisites.

(2) Pending the designation of a substitute Deposit Taker as provided in this subparagraph 3(C) and its execution and delivery to BTMUCLF of an appropriate Deposit Taker’s Agreement, BTMUCLF may withdraw Collateral held by the Deposit Taker to be replaced and deposit such Collateral with other Deposit Takers. If at any time no Deposit Takers have been designated other than Disqualified Deposit Takers, then BTMUCLF must itself select a new Eligible Deposit Taker to act as a Deposit Taker for it and direct the new Eligible Deposit Taker to satisfy the Deposit Taker Prerequisites.

(3) If, following a BTMU Downgrade Event, BTMU subsequently maintains the S&P Rating and Moody Rating required by clauses (i) and (ii) of the definition of BTMU Downgrade Event, BTMUCLF may designate BTMU as its new, substitute Deposit Taker and to have Collateral previously withdrawn from BTMU promptly transferred to BTMU to be held in accordance herewith and the Deposit Taker’s Agreement (or a substitute Deposit Taker’s Agreement on the identical terms as that to which such Collateral was previously subject).

(D) Other Voluntary Substitutions of Deposit Takers . BTMUCLF may, and with the written approval of BTMUCLF (which approval will not be unreasonably

 

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withheld) any Participant may, at any time designate for itself a new Deposit Taker (in replacement of any prior Deposit Taker acting for it hereunder); provided, the Person so designated is not be a Disqualified Taker.

(E) Delivery of Deposit Taker’s Agreements by LRC and BTMUCLF . To the extent required for the designation of a new Deposit Taker by BTMUCLF or any Participant pursuant to subparagraph 3(D), or to permit the substitution or replacement of a Deposit Taker for BTMUCLF or any Participant as provided in subparagraphs 3(C) and 3(D), LRC and BTMUCLF shall promptly execute and deliver any properly completed Deposit Taker’s Agreement requested by BTMUCLF or the applicable Participant.

(F) Constructive Possession of Collateral . The possession by a Deposit Taker of any money, instruments, chattel paper, financial assets or other property constituting Collateral or evidencing Collateral shall be deemed to be possession by BTMUCLF or a person designated by BTMUCLF, for purposes of perfecting the security interest granted to BTMUCLF hereunder pursuant to the UCC or other Applicable Law; and notifications to a Deposit Taker by other Persons holding any such property, and acknowledgments, receipts or confirmations from any such Persons delivered to a Deposit Taker, and control agreements made by any such Person with Deposit Taker with respect to any such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, or control agreements with, financial intermediaries, bailees or agents (as applicable) of such Deposit Taker for the benefit of BTMUCLF for the purposes of perfecting such security interests under Applicable Law.

However, nothing in this subparagraph will be construed to permit or authorize any replacement of Cash Collateral required by this Agreement with other types of Collateral or any substitution of other types of Collateral for Cash Collateral hereunder.

(G) Attempted Setoff by Deposit Taker . By delivery of a Deposit Taker’s Agreement, each Deposit Taker must agree not to setoff or attempt a setoff, without in each case first obtaining the prior written authorization of BTMUCLF (which BTMUCLF will not grant without the prior written consent of all Participants, if applicable), obligations owed to such Deposit Taker against any Collateral held by it from time to time. Nevertheless, LRC acknowledges and agrees (without limiting its right to recover any resulting damages from any Deposit Taker that violates such agreements) that BTMUCLF shall not be responsible for, or be deemed to have taken any action against LRC because of, any violation of such agreement by any Deposit Taker. Further, and without limiting the foregoing, as additional consideration for BTMUCLF’s accommodations to LRC, including BTMUCLF’s acceptance of the Collateral in lieu of other forms of security as collateral for the Secured Obligations, LRC hereby waives and covenants not to assert any defense or claim arising out of (i) the California antideficiency laws, including without limitation California Code of Civil Procedure Sections 580a, 580b, 580d and 726, and (ii) without limiting the generality of the foregoing, Walker v. Community Bank , 10 Cal. 3d 729, 111 Cal. Rptr. 897, 518 P.2d 329 (1974), Security Pacific Nat’l Bank v. Wozab , 51 Cal. 3d 991, 275 Cal. Rptr. 201, 800 P.2d 557 (1990), and similar cases, to the extent such claim arises out of or relates to the exercise of set off rights by any Deposit Taker.

 

4. DELIVERY AND MAINTENANCE OF COLLATERAL.

 

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(A) Delivery of Cash Collateral by LRC . On the Base Term Commencement Date as a condition precedent thereto under the Participation Agreement, LRC must deliver or cause to be delivered to Deposit Takers for deposit directly into the Deposit Accounts, in either case subject to the pledge and security interest created hereby, funds as Cash Collateral then needed (if any) in an amount equal to the Lease Balance (including any Advances or other amounts added to the Lease Balance on that date as provided in the Participation Agreement).

(B) Status of the Deposit Accounts Under the Reserve Requirement Regulations . Each Deposit Taker shall be permitted to structure the Deposit Account maintained by it as a nonpersonal time deposit under 12 C.F.R., Part II, Chapter 204 (commonly known as “Regulation D”). Accordingly, any Deposit Taker may require at least seven days advance notice of any withdrawal or transfer of funds from the Deposit Account maintained by it and, to the extent LRC has the right to request withdrawals therefrom, may limit the number of withdrawals or transfers from such Deposit Account to no more than six in any calendar month, notwithstanding anything to the contrary herein or in any deposit agreement that LRC and such Deposit Taker may enter into with respect to such Deposit Account. As necessary to satisfy the seven days notice requirement with respect to withdrawals by BTMUCLF when required by LRC pursuant to the provisions below, BTMUCLF shall notify the affected Deposit Takers promptly after receipt of any notice from LRC described in subparagraph 5(B).

(C) Acknowledgment by LRC that Requirements of this Agreement are Commercially Reasonable . LRC acknowledges and agrees that the requirements set forth herein concerning receipt, deposit, withdrawal, allocation, application and distribution of Cash Collateral by BTMUCLF, including the requirements and time periods set forth in the Paragraph 5, are commercially reasonable.

 

5. WITHDRAWAL OF COLLATERAL.

(A) Withdrawal of Cash Collateral Upon the Occurrence and During the Continuance of an Event of Default . Upon the occurrence and during the continuance of an Event of Default, without any instruction or request of LRC, BTMUCLF may withdraw and retain any Cash Collateral held by any Deposit Taker (which retention by BTMUCLF shall be free and clear of all liens and security interests hereunder and any rights of LRC thereto shall be released, terminated and waived without further action) as a payment on behalf of LRC of any amounts then due from LRC under Article XVIII of the Lease. To the extent BTMUCLF has exercised its rights and remedies thereunder and has indefeasibly satisfied the Secured Obligations in full in accordance with Article XVIII of the Lease, LRC may require BTMUCLF to withdraw and promptly pay to LRC any Cash Collateral still held by any Deposit Taker.

(B) Withdrawal and Application of Cash Collateral to Reduce or Satisfy the Secured Obligations to BTMUCLF . Except following the occurrence and during the continuance of an Event of Default, to satisfy the Secured Obligations in full, LRC may require BTMUCLF to withdraw and retain any Cash Collateral held by any Deposit Taker on the Base Term Expiration Date (which retention by BTMUCLF shall be free and clear of all liens and security interests hereunder and any rights of LRC thereto shall be released,

 

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terminated and waived without further action) as a payment on behalf of LRC of any amounts then due from LRC under Articles XX, XXI or XXII of the Lease; provided, that by a notice in the form of Exhibit B , LRC must have notified BTMUCLF of the required withdrawal and payment to BTMUCLF at least ten days prior to the date upon which it is to occur and when no Event of Default (under and as defined in this Agreement or as defined in the Lease) has occurred and is continuing. To the extent LRC has validly exercised the Return Option under the Lease and the Recourse Deficiency Amount has been indefeasibly satisfied in full on the Base Term Expiration Date in accordance with Articles XXI and XXII of the Lease, LRC may require BTMUCLF to withdraw and pay to LRC Cash Collateral held by any Deposit Taker on the Base Term Expiration Date in an amount not to exceed the Make Whole Amount and when no Default or Event of Default (under and as defined in this Agreement or as defined in the Lease) has occurred and is continuing.

(C) Withdrawal and Return of Cash Collateral Following Satisfaction of all Secured Obligations . Following the Base Term Expiration Date, when all Secured Obligations have been indefeasibly satisfied in full, any remaining Cash Collateral that has not been withdrawn and applied against the Secured Obligations shall revert to LRC as provided in subparagraph 9(F), whereupon LRC may require BTMUCLF to withdraw such remaining Cash Collateral then maintained pursuant to this Agreement and promptly transfer such remaining Cash Collateral to LRC.

(D) No Other Right to Require or Make Withdrawals . LRC may not withdraw or require any withdrawal of Collateral from any account or deposit account pledged hereunder, including the Deposit Accounts, except as expressly provided in the preceding subparagraphs of this Paragraph 5. LRC acknowledges that it will have no check writing privileges or line of credit or credit card privileges under any such pledged account or deposit account, including the Deposit Accounts.

(E) BTMUCLF’s Covenant Not to Make Unauthorized Withdrawals . Notwithstanding provisions of any Control Agreement or of any Deposit Taker’s Agreement which may state that BTMUCLF is entitled to withdraw Collateral held by any Deposit Taker without any prior consent or authorization of LRC, BTMUCLF covenants to LRC (as between BTMUCLF and LRC) that BTMUCLF will not exercise such rights to withdraw Collateral except (1) as required or permitted by this Paragraph 5, (2) in the exercise of BTMUCLF’s rights or remedies as otherwise herein provided, or (3) as may from time to time be requested or approved by LRC.

 

6. REPRESENTATIONS AND COVENANTS OF LRC.

(A) Representations of LRC . LRC represents to BTMUCLF as follows:

(1) LRC is the legal and beneficial owner of the Collateral (or, in the case of after-acquired Collateral, at the time LRC acquires rights in the Collateral, will be the legal and beneficial owner thereof), subject to the pledge and rights hereby granted in favor of BTMUCLF. No other Person has (or, in the case of after-acquired Collateral, at the time LRC acquires rights therein, will have) any right, title, claim or interest (by way of Lien, purchase option or otherwise) in, against or to the Collateral, except for rights created hereunder. The Collateral shall

 

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be deposited with the Deposit Taker hereunder and under the Deposit Taker’s Agreement free and clear of any Lien.

(2) BTMUCLF has (or in the case of after-acquired Collateral, at the time LRC acquires rights therein, will have) a valid, first priority, perfected pledge of and security interest in the Collateral, regardless of the characterization of the Collateral as deposit accounts, instruments or general intangibles under the UCC, but assuming that the representations of each Deposit Taker in its Deposit Taker’s Agreement are true.

(3) LRC has delivered to BTMUCLF, together with all necessary stock powers, endorsements, assignments and other necessary instruments of transfer, the originals of all documents, instruments and agreements evidencing the Collateral in order to comply with Section 2 of the Initial Control Agreement.

(4) Neither the ownership or the intended use of the Collateral by LRC, nor the pledge of Collateral or the grant of the security interest by LRC to BTMUCLF herein, nor the exercise by BTMUCLF of its rights or remedies hereunder, will (i) violate any provision of (a) Applicable Law, (b) the articles or certificate of incorporation, charter or bylaws of LRC, or (c) any agreement, judgment, license, order or permit applicable to or binding upon LRC or its properties, or (ii) result in or require the creation of any Lien, charge or encumbrance upon any assets or properties of LRC except as expressly contemplated in this Agreement. Except as expressly contemplated in this Agreement, no consent, approval, authorization or order of, and no notice to or filing with any court, governmental authority or third party is required in connection with the pledge or grant by LRC of the security interest contemplated herein or the exercise by BTMUCLF of its rights and remedies hereunder.

 

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(B) Covenants of LRC . LRC hereby agrees as follows:

(1) LRC, at LRC’s expense, shall promptly procure, execute and deliver to BTMUCLF all documents, instruments and agreements and perform all acts which are necessary or desirable, or which BTMUCLF may request, to establish, maintain, preserve, protect and perfect the Collateral, the pledge thereof to BTMUCLF or the security interest granted to BTMUCLF therein and the first priority of such pledge or security interest or to enable BTMUCLF to exercise and enforce its rights and remedies hereunder with respect to any Collateral. Without limiting the generality of the preceding sentence, LRC shall (A) procure, execute and deliver to BTMUCLF all stock powers, endorsements, assignments, fmancing statements and other instruments of transfer requested by BTMUCLF, (B) deliver to BTMUCLF promptly upon receipt all originals of Collateral consisting of instruments, documents and chattel paper, and (C) cause the security interest of BTMUCLF in any Collateral consisting of securities to be recorded or registered in the books of any financial intermediary or Clearing System requested by BTMUCLF.

(2) When Applicable Law provides more than one method of perfection of BTMUCLF’s security interest in the Collateral, BTMUCLF may choose the method(s) to be used. LRC hereby authorizes BTMUCLF to file any financing statements or financing statement amendment covering all or any portion of the Collateral or relating to the security interest created herein.

(3) LRC shall not use or authorize or consent to any use of any Collateral in violation of any provision of this Agreement or any other Operative Document or any Applicable Law.

(4) LRC shall pay promptly when due all Taxes and other governmental charges, Liens and other charges now or hereafter imposed upon, relating to or affecting any Collateral or arising on any interest or earnings thereon.

(5) LRC shall appear in and defend, on behalf of BTMUCLF, any action or proceeding which may affect LRC’s title to or BTMUCLF’s interest in the Collateral.

(6) Subject to the express rights of LRC under Paragraph 5, LRC shall not surrender or lose possession of (other than to BTMUCLF or a Deposit Taker pursuant hereto), encumber, lease, rent, option, or otherwise dispose of or transfer any Collateral or right or interest therein, and LRC shall keep the Collateral free of all Liens (other than Liens granted under this Agreement). The rights granted to BTMUCLF pursuant to this Agreement are in addition to the rights granted to BTMUCLF in any Control Agreement or other custody, investment management, trust, account control agreement or similar agreement. In case of conflict between the provisions of this Agreement and of any other such agreement, the provisions of this Agreement will prevail.

 

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(7) LRC will not take any action which would in any manner impair the value or enforceability of BTMUCLF’s pledge of or security interest in any Collateral, nor will LRC fail to take any action which is required to prevent (and which LRC knows is required to prevent) an impairment of the value or enforceability of BTMUCLF’s pledge of or security interest in any Collateral.

(8) Without limiting the foregoing, within five days after LRC becomes aware of any failure of the pledge or security interest contemplated herein in any Deposit Account or Cash Collateral to be a valid, perfected, first priority pledge or security interest (regardless of the characterization thereof as deposit accounts, securities accounts, instruments or general intangibles under the UCC), LRC shall notify BTMUCLF of such failure.

 

7. AUTHORIZED ACTION BY BTMUCLF.

LRC hereby irrevocably appoints BTMUCLF as LRC’s attorney-in-fact for the purpose of authorizing BTMUCLF to perform (but BTMUCLF shall not be obligated to and shall incur no liability to LRC or any third party for failure to perform) any act which LRC is obligated by this Agreement to perform, and to exercise, consistent with the other provisions of this Agreement, such rights and powers as LRC might exercise with respect to the Collateral during any period in which a Default has occurred and is continuing, including the right to (a) collect by legal proceedings or otherwise and endorse, receive and receipt for all dividends, interest, payments, proceeds and other sums and property now or hereafter payable on or on account of the Collateral; (b) enter into any extension, reorganization, deposit, merger, consolidation or other agreement pertaining to, or deposit, surrender, accept, hold or apply other property in exchange for the Collateral; (c) insure, process, preserve and enforce the Collateral; (d) make any compromise or settlement, and take any action it deems advisable, with respect to the Collateral; (e) pay any indebtedness of LRC relating to the Collateral; and (f) execute UCC financing statements and other documents, instruments and agreements required hereunder. Such appointment is coupled with an interest and shall be valid and binding on LRC and its successor and assigns.

 

8. DEFAULT AND REMEDIES.

(A) Remedies . In addition to all other rights and remedies granted to BTMUCLF by this Agreement and other Operative Documents (except under Other Lease Documents) or by the UCC and other Applicable Laws, BTMUCLF may, upon the occurrence and during the continuance of any Event of Default (as defined herein and in the Lease), exercise any one or more of the following rights and remedies, all of which will be in furtherance of its rights as a secured party under the UCC:

(1) BTMUCLF may collect, receive, appropriate or realize upon the Collateral or otherwise foreclose or enforce the pledge of or security interests in any or all Collateral in any manner permitted by Applicable Law or in this Agreement.

(2) BTMUCLF may notify any Deposit Taker to pay all or any portion of Cash Collateral held by such Deposit Taker directly to BTMUCLF up to an amount equal to the then outstanding Secured Obligations. BTMUCLF shall apply

 

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any Cash Collateral or proceeds of other Collateral received by BTMUCLF after the occurrence of such an Event of Default to the Secured Obligations in any order BTMUCLF believes to be in its best interest. If any such Cash Collateral or proceeds received by BTMUCLF remains after all Secured Obligations have been paid in full, BTMUCLF will deliver or direct the Deposit Takers to deliver the same to LRC or other Persons entitled thereto.

Without limiting the foregoing, when any such Event of Default has occurred and is continuing, BTMUCLF may, without notice or demand, sell, redeem, offset, setoff, debit, charge or otherwise dispose of or liquidate into cash any Collateral and/or to apply it or the proceeds thereof to repay any or all of the Secured Obligations in such order as BTMUCLF believes to be in its best interest, regardless of whether any such Secured Obligations are contingent, unliquidated or unmatured or whether BTMUCLF has any other recourse to LRC or any Other Liable Party or any other collateral or assets (including the Property). Moreover, regardless of whether BTMUCLF commences any action to foreclose the lien and security interest granted in the Lease or the Memorandum of Lease (a “Property Foreclosure” ) before, after or contemporaneously with any action BTMUCLF may take under this Pledge Agreement to collect Cash Collateral or proceeds of other Collateral, and regardless of whether BTMUCLF actually receives proceeds of a Property Foreclosure before or after it receives Cash Collateral or proceeds of other Collateral, BTMUCLF will be entitled to apply Cash Collateral and proceeds of other Collateral to satisfy or reduce the Secured Obligations before applying the proceeds of a Property Foreclosure to other remaining obligations secured as described in the Lease and the Memo of Lease. Also, BTMUCLF may exercise its rights without regard to any premium or penalty from liquidation of any Collateral and without regard to LRC’s basis or holding period for any Collateral.

In connection with the exercise of its remedies under this Agreement, BTMUCLF may sell from its offices in Boston, Massachusetts, New York, New York or elsewhere, in one or more sales, at the price as BTMUCLF deems best, for cash or on credit or for other property, for immediate or future delivery, any item of the Collateral, at any broker’s board or at public or private sale, in any reasonable manner permissible under the UCC (except that, to the extent permissible under the UCC, LRC waives any requirements of the UCC) and BTMUCLF or anyone else may be the purchaser of the Collateral and hold it free from any claim or right including, without limitation, any equity of redemption of LRC, which right LRC expressly waives. BTMUCLF may in its sole discretion elect to conduct any sale (and related offers) of any Collateral in such a manner as to avoid the need for registration or qualification thereof under any Federal or state securities laws, that such conduct may include restrictions (including as to potential purchasers) and other requirements (such as purchaser representations) which may result in prices or other terms less favorable than those which might have been obtained through a public sale not subject to such restrictions and requirements and that any offer and sale so conducted shall be deemed to have been made in a commercially reasonable manner.

In connection with the exercise of its remedies, BTMUCLF may also, in its sole discretion, for its own benefit, acting either in its own name or in the name of LRC:

 

17


(i) hold any monies or proceeds representing the Collateral in a cash collateral account in U.S. dollars or other currency that BTMUCLF reasonably selects and invest such monies or proceeds on behalf of LRC;

(ii) convert any Collateral denominated in a currency other than U.S. dollars to U.S. dollars at the spot rate of exchange for the purchase of U.S. dollars with such other currency which is quoted by a branch or office of BTMUCLF’s Parent selected by BTMUCLF (or, if no such rate is quoted by BTMUCLF’s Parent on any relevant date, then at a rate estimated by BTMUCLF on the basis of other quoted spot rates) or another prevailing rate that BTMUCLF reasonably deems more appropriate; or

(iii) apply any portion of the Collateral, first, to pay or reimburse all costs and expenses of BTMUCLF and then to all or any portion of the Secured Obligations in such order as BTMUCLF may believe to be in its best interest.

In any event, LRC will pay to BTMUCLF upon demand all expenses (including reasonable, out-of-pocket fees, costs and expenses of counsel to BTMUCLF and any Participant) incurred by BTMUCLF in connection with the exercise of any of BTMUCLF’s rights or remedies under this Agreement.

Notwithstanding that BTMUCLF may continue to hold Collateral and regardless of the value of the Collateral, LRC will remain liable for the payment in full of any unpaid balance of the Secured Obligations.

In any case where notice of any sale or disposition of any Collateral is required, LRC hereby agrees that ten (10) days notice of such sale or disposition is reasonable.

(B) Recovery Not Limited . To the fullest extent permitted by Applicable Law, LRC waives any right to require that BTMUCLF proceed against any other Person, exhaust any Collateral or other security for the Secured Obligations, or to have any Other Liable Party joined with LRC in any suit arising out of the Secured Obligations or this Agreement, or pursue any other remedy in their power. LRC waives any and all notice of acceptance of this Agreement.

LRC further waives notice of the creation, modification, rearrangement, renewal or extension for any period of any of the Secured Obligations of any Other Liable Party from time to time and any defense arising by reason of any disability or other defense of any Other Liable Party or by reason of the cessation from any cause whatsoever of the liability of any Other Liable Party. Until all of the Secured Obligations shall have been paid in full, LRC shall have no right to subrogation, reimbursement, contribution or indemnity against any Other Liable Party and LRC waives the right to enforce any remedy which BTMUCLF has or may hereafter have against any Other Liable Party, and waives any benefit of and any right to participate in any other security whatsoever now or hereafter held by or on behalf of BTMUCLF. LRC authorizes BTMUCLF, without notice or demand and without any reservation of rights against LRC and without affecting LRC’s liability hereunder or on the Secured Obligations, from time to time to (a) take or hold any other property of any type

 

18


from any other Person as security for the Secured Obligations, and exchange, enforce, waive and release any or all of such other property, (b) after and during the continuance of any Event of Default (as defined herein or in the Lease), apply or require the application of the Collateral (in accordance with this Agreement) or such other property in any order they may determine and to direct the order or manner of sale thereof as they may determine, (c) renew, extend for any period, accelerate, modify, compromise, settle or release any of the obligations of any Other Liable Party with respect to any or all of the Secured Obligations or other security for the Secured Obligations, and (d) release or substitute any Other Liable Party.

 

9. MISCELLANEOUS.

(A) Payments by LRC to BTMUCLF . All payments and deliveries of funds required to be made by LRC to BTMUCLF hereunder shall be paid or delivered in immediately available funds by wire transfer to the Deposit Account in accordance with wiring instructions which will be provided by BTMUCLF to LRC. Time is of the essence as to all payments and deliveries of funds by LRC to BTMUCLF under this Agreement.

(B) Payments by BTMUCLF to LRC . All payments of Cash Collateral withdrawn by BTMUCLF from the Deposit Accounts and required to returned by BTMUCLF to LRC hereunder shall be paid or delivered in immediately available funds by wire transfer to:

 

Bank Name:        
Bank Address:        
ABA # (Domestic):        
SWIFT ID (Inn):        
Account Name:        
Account Number:        
Bank Contact:        
       
       
Reference        
       

or at such other place and in such other manner as LRC may designate in a notice sent to BTMUCLF. Time is of the essence as to all such payments by BTMUCLF to LRC.

(C) Cumulative Rights, etc. Except as herein expressly provided to the contrary, the rights, powers and remedies of BTMUCLF under this Agreement shall be in addition to all rights, powers and remedies given to them by virtue of any Applicable Law, any other Operative Document or any other agreement, all of which rights, powers, and remedies shall be cumulative and may be exercised successively or concurrently without impairing their respective rights hereunder. LRC waives any right to require BTMUCLF to proceed against any Person or to exhaust any Collateral or other collateral or security or to pursue any remedy in BTMUCLF’s power.

 

19


(D) Survival of Agreements . All representations and warranties of LRC herein, and all covenants and agreements herein shall survive the execution and delivery of this Agreement, the execution and delivery of any other Operative Documents and the creation of the Secured Obligations and continue until terminated or released as provided herein.

(E) Other Liable Party . Neither this Agreement nor the exercise by BTMUCLF or the failure of BTMUCLF to exercise any right, power or remedy conferred herein or by law shall be construed as relieving LRC or any Other Liable Party from liability on the Secured Obligations or any deficiency thereon. This Agreement shall continue irrespective of the fact that the liability of any Other Liable Party may have ceased or irrespective of the validity or enforceability of any other agreement evidencing or securing the Secured Obligations to which LRC or any Other Liable Party may be a party, and notwithstanding the reorganization, death, incapacity or bankruptcy of any Other Liable Party, or any other event or proceeding affecting any Other Liable Party.

(F) Termination . Following the Base Term Expiration Date, upon indefeasible satisfaction in full of all Secured Obligations (other than contingent indemnity obligations for which no Claim has been made or are not due and payable) and upon written request for the termination of this Agreement delivered by LRC to BTMUCLF, BTMUCLF will execute and deliver, at LRC’s expense, an acknowledgment that this Agreement and the pledge and security interest created hereby are terminated, whereupon all rights to any remaining Collateral that has not been applied against Secured Obligations in accordance with this Agreement shall revert to LRC.

[Signature pages to follow]

 

20


IN WITNESS WHEREOF, this Agreement is executed to be effective as of the date first written above.

 

BTMU CAPITAL LEASING & FINANCE, INC.,
a Delaware corporation
By:  

/s/ Michael D. Doyle

Name:   Michael D. Doyle
Title:   President


LAM RESEARCH CORPORATION,
a Delaware Corporation
By:  

/s/ Odette Go

Name:   Odette Go
Title:   Treasurer


Exhibit A

TO PLEDGE AGREEMENT

DEPOSIT AGREEMENT

(FREMONT 4)

Dated as of December 31, 2013

The Bank of Tokyo-Mitsubishi UFJ, Ltd.

Global Markets Division for the Americas

1251 Avenues of the Americas

New York, New York 10020-1104

Dear Ladies and Gentlemen:

LAM Research Corporation, a Delaware corporation (“ LRC ”), refers to that certain Pledge Agreement (Fremont 4), dated as of December 31, 2013 (as amended or otherwise modified from time to time, the “Pledge Agreement” ), between BTMU Capital Leasing & Finance, Inc. (“ BTMUCLF ”) and LRC. All capitalized terms used herein and not otherwise defined herein shall have the same meanings herein as set forth in the Pledge Agreement. All terms used in this Agreement which are defined in the UCC and not otherwise defined herein shall have the same meanings herein as set forth therein, except where the context otherwise requires.

This Deposit Agreement (this “ Agreement ”), is among The Bank of Tokyo-Mitsubishi UFJ, Ltd. (“ Deposit Taker ”), LRC and BTMUCLF and shall serve as instructions regarding the following deposit account established by LRC at the Deposit Taker (the “ Deposit Account ”):

 

Account

Type

  

Account

Office

  

Account/IMMS/WSS

Numbers

__________________

  

__________________

  

__________________

LRC has delivered to Deposit Taker for deposit initially in such Deposit Account, which may not necessarily bear any special title or which may be entitled: “LAM RESEARCH CORPORATION COLLATERAL ACCOUNT FOR THE BENEFIT OF BTMU CAPITAL LEASING & FINANCE, INC.” or such other title as may be acceptable to Deposit Taker the sum of U.S. $18,708,344.23 in immediately available funds and which may thereafter be held in (but are not necessarily limited to) the form of one or more time deposits, certificates of deposit, other deposits or instruments of any type which at all times shall be under the


dominion and control of the Deposit Taker (such funds, whether now or at any time hereafter on deposit with or payable or withdrawable from the Deposit Taker (whether from the Deposit Account or any other deposit account, or any time deposit, certificate of deposit, or any other deposit or instrument of any type)), together with any amounts or accruals subsequently added to or earned, including interest, by such funds and all additional funds hereafter deposited into the Deposit Account hereunder or otherwise or given in substitution for such funds, being referred to herein as the “ Deposited Funds ”). Any such Deposited Funds and any funds or deposits which at any time derive from, consist of or represent Deposited Funds (including, but not limited to, time deposits, certificates of deposit, other deposits or instruments of any type), all proceeds, income and profits thereon and therefrom, and the Deposit Account and any deposit account in which any of the foregoing is deposited or held, and all of LRC’s rights and interests therein and claims against Deposit Taker with respect thereto, are collectively referred to herein as, the “ Cash Collateral ”. Without limiting any of Deposit Taker’s other rights or remedies Deposit Taker shall have all the rights and remedies of a secured party under the Uniform Commercial Code and all other applicable law with respect to the Cash Collateral and each such deposit account, all of which LRC acknowledges is to be deemed a “deposit account” defined by the Uniform Commercial Code. LRC understands that Deposit Taker may combine the Deposited Funds and Cash Collateral with other funds and will not be required to keep them separate and identifiable and that the Deposited Funds and Cash Collateral may be invested, reinvested, held or otherwise utilized by the Deposit Taker without any direction of the Parties. If such commingling occurs, Deposit Taker may consider the Deposited Funds to consist at any time of any and all funds in any relevant account up to the amount required to be held by Deposit Taker pursuant hereto.

1. Lien . As security for immediate payment and performance when due of all of the Secured Obligations as defined in the Pledge Agreement owing by LRC, whensoever arising, whether now existing or hereafter incurred, of every kind and character, including, without limitation, arising or otherwise existing under or with respect to the Amended and Restated Lease Agreement (Fremont 4), dated as of December 31, 2013 (as amended or otherwise modified from time to time, the “Lease Agreement” ), between BTMUCLF and LRC and the Operative Documents (except with respect to the Other Lease Documents) (all such obligations, liabilities and indebtedness being referred to herein collectively as the “Secured Obligations” ), LRC hereby pledges and assigns to BTMUCLF and grants to BTMUCLF a continuing first priority security interest in the following (the “ Collateral ”): (i) the Deposit Account, (ii) the Cash Collateral, (iii) all Deposited Funds, (iv) any and all accounts to which the Deposited Funds or the proceeds thereof are credited, (v) all amounts, money and other property standing to the credit of any such accounts, together with any and all documents evidencing or constituting such amounts, money and other property, (vi) all instruments, investment property and the like in which such property is from time to time invested or reinvested and all interest, distributions, other income and the like payable with respect thereto, and (vii) all replacements, renewals, substitutions, products, profits and proceeds of the foregoing in whatever form. The parties hereto agree that this Agreement complies with Section 9-104(a)(2) of the New York Uniform Commercial Code. So long as this Agreement remains in full force and effect, LRC shall have no right to be paid or to draw upon, transfer or otherwise dispose of any of the Cash Collateral, and Deposit Taker shall

 

2


have exclusive dominion and control of all Cash Collateral. Deposit Taker has and shall have “control”, as contemplated by Article 9 of the Uniform Commercial Code, including Section 9-104 thereof, of the Deposit Account, the Deposited Funds, the Cash Collateral and of any deposit account in which any Cash Collateral is deposited.

2. Duties . Deposit Taker agrees to take such action with respect to the Deposit Account as shall from time to time be specified in any writing purportedly from BTMUCLF as provided herein. LRC and BTMUCLF agree that: (a) Deposit Taker has no duty to monitor the balance of the Deposit Account; (b) BTMUCLF may at any time make withdrawals from the Deposit Account and take any and all actions with respect to the Deposit Account, and Deposit Taker is hereby authorized to honor any instructions with respect to the Deposit Account (including withdrawals therefrom) which purport to be from BTMUCLF (in each case without notifying or obtaining the consent of LRC); (c) Deposit Taker may, without further inquiry, rely on and act in accordance with any instructions it receives from (or which purport to be from) BTMUCLF, notwithstanding any conflicting or contrary instructions it may receive from LRC, and Deposit Taker shall have no liability to BTMUCLF, LRC or any other person in relying on and acting in accordance with any such instructions; (d) Deposit Taker shall have no responsibility to inquire as to the form, execution, sufficiency or validity of any notice or instructions delivered to it hereunder, nor to inquire as to the identity, authority or rights of the person or persons executing or delivering the same, and (e) Deposit Taker shall have a reasonable period of time within which to act in accordance with any notice or instructions from BTMUCLF with respect to the Deposit Account. Deposit Taker is hereby authorized immediately, and without demand upon or notice to us or other formality, to take direction from BTMUCLF acting in accordance with the terms and conditions of the Pledge Agreement to (i) withdraw and deliver any and all Cash Collateral and Deposited Funds to LRC, (ii) withdraw and apply any and all Cash Collateral and Deposited Funds to reduce or satisfy any and all Secured Obligations in any order and first toward any expenses Deposit Taker incurs in Deposit Taker’s discretion, as and when they arise or are due, without resort to us, any other collateral or any other obligor, or (iii) withdraw and return Cash Collateral and Deposited Funds to LRC.

3. Interest on the Deposit Account . Deposit Taker will have no obligation to pay any interest on the Deposit Account except as follows: on each Payment Date accrued interest on each Deposit Account maintained by Deposit taker will be paid by wire transfer to the LRC for the period (the “Interest Period” ) since the preceding Payment Date (or if there was no preceding Payment Date, since the Base Term Commencement Date) equal to the product of:

 

    the Deposited Funds on deposit with the Deposit Taker on the first day of such Interest Period, times

 

    LIBOR Rate less 0.125% (but in no event less than zero) for such Interest Period, times

 

    the number of days in such Interest Period, divided by;

 

    three hundred sixty.

 

3


As used in this Section 3, capitalized terms defined in the Participation Agreement are intended to have the respective meanings assigned to them in the Participation Agreement.

All payments of interest by Deposit Taker hereunder to LRC hereunder shall be paid or delivered in immediately available funds by wire transfer to:

 

Bank Name:        
Bank Address:        
ABA # (Domestic):        
SWIFT ID (Inn):        
Account Name:        
Account Number:        
Bank Contact:        
       
       
Reference        

or at such other place and in such other manner as LRC may designate in a notice sent to the Deposit Taker. Time is of the essence as to all such payments by Deposit Taker to LRC.

4. Remedies . LRC agrees that, at any time after an Event of Default has occurred or any Secured Obligation arises or comes due, Deposit Taker may, without notice or demand (all of which LRC hereby waives), to take direction from BTMUCLF acting in its sole discretion to realize upon and apply all or any part of the Cash Collateral to the payment of all or any part of the Secured Obligations, in such order and manner as BTMUCLF may elect and Deposit Taker is authorized to take direction from BTMUCLF acting in its sole discretion to break any time deposit or certificate deposit prior to its stated maturity and for which LRC shall have responsibility for any loss of interest or early withdrawal penalties resulting therefrom. BTMUCLF shall not be required to pursue any other right or remedy against us, or any other person liable for any part of the Secured Obligations, or enforce its security interest in or liens on any other property securing the Secured Obligations, prior to enforcing Deposit Taker’s rights against the Cash Collateral. Without limiting the foregoing, Deposit Taker is hereby authorized immediately, and without demand upon or notice to us or other formality, to take direction from BTMUCLF acting in its sole discretion on and during the continuance of an Event of Default (as such term is defined in the Pledge Agreement), apply and setoff against the Cash Collateral and the Deposited Funds the aggregate amount of all principal of, interest on and other amounts payable with respect to all Secured Obligations existing or payable as of such date, whether or not then due.

5. Representations, Warranties and Covenants . LRC hereby represents, warrants and covenants to Deposit Taker and BTMUCLF that: (i) the Collateral is and will be owned by us free and clear of all claims, liens, security interests, pledges and encumbrances of any kind, except in Deposit Taker’s favor; (ii) LRC is a corporation, duly organized and validly existing in good standing under the laws of State of Delaware, and have the right and power to execute, deliver and perform this Agreement, and to pledge, assign and grant a security interest in the Collateral in accordance herewith; (iii) this Agreement has been duly authorized, executed and delivered by LRC (and those individuals who have signed on its

 

4


behalf have the authority to do so consistent with resolutions on file in Deposit Taker’s offices) and constitutes its legal, valid, binding and enforceable obligation; (iv) Deposit Taker has and will continue at all times to have a first priority perfected and enforceable lien and security interest in the Collateral, subject to no other liens, security interests or encumbrances; (v) LRC shall not take any action or otherwise make any attempt to draw upon, transfer or otherwise dispose of the Collateral or permit the amount of Collateral to decrease at any time; and (vi) LRC shall from time to time at Deposit Taker’s request, execute, deliver, acknowledge, file and record such agreements, documents, statements and certificates (including, without limitation, Uniform Commercial Code financing statements), and do such acts and things as are necessary or appropriate to effectuate the purposes of this Agreement. LRC hereby authorizes Deposit Taker to file any Uniform Commercial Code financing statements, amendments thereto or continuations thereof, and any other appropriate security documents or instruments and to give any notices necessary or desirable to perfect any lien or security interest granted hereby, all without the signature of the LRC or to execute such items as attorney-in-fact for the LRC, as may be necessary to further the purposes described herein. Deposit Taker shall at all times have the exclusive right to hold and possess any certificates, instruments or documents included in the Collateral. Should LRC at any time receive any such certificates, instruments or documents it shall hold the same in trust for, and immediately deliver them to, Deposit Taker. Any breach of any representation, warranty, covenant or agreement made by us herein or elsewhere shall be an “ Event of Default ”. An “ Event of Default ” shall also be as defined in the Pledge Agreement.

6. Information . Deposit Taker shall provide BTMUCLF with such information with respect to the Deposit Account and all items (and proceeds thereof) deposited in the Deposit Account as BTMUCLF may from time to time reasonably request, and LRC hereby consents to such information being provided to BTMUCLF and agrees to pay all expenses in connection therewith.

7. Exculpation; Indemnity . Deposit Taker undertakes to perform only such duties as are expressly set forth herein. Notwithstanding any other provisions of this Agreement, the parties hereby agree that Deposit Taker shall not be liable for any action taken by it in accordance with this Agreement, including, without limitation, any action so taken at BTMUCLF’s request or direction, except direct damages attributable to the Deposit Taker’s gross negligence or willful misconduct. In no event shall Deposit Taker be liable for any (i) losses or delays resulting from acts of God, war, computer malfunction, interruption of communication facilities, labor difficulties or other causes beyond Deposit Taker’s reasonable control, or (ii) for indirect, special, punitive or consequential damages. LRC agrees to indemnify and hold Deposit Taker harmless from and against all costs, damages, claims, judgments, reasonable attorneys’ fees, expenses, obligations and liabilities of every kind and nature (collectively, “ Losses ”) which Deposit Taker may incur, sustain or be required to pay (other than those attributable to Deposit Taker’s gross negligence or willful misconduct) in connection with or arising out of this Agreement or the Deposit Account (including without limitation, the amount of any overdraft created in the Deposit Account resulting from a Chargeback, and to pay to Deposit Taker on demand the amount of all such Losses. Nothing in this Section, and no indemnification of Deposit Taker hereunder, shall affect in any way the indemnification obligations of LRC to BTMUCLF under the Pledge Agreement or other

 

5


Operative Documents. The provisions of this Section shall survive termination of this Agreement.

8. Irrevocable Agreement . LRC acknowledges that the agreements made by it and the authorizations granted by it herein are irrevocable and that the authorizations granted in Section 2 are powers coupled with an interest.

9. Set-off . Deposit Taker waives all of its existing and future rights of set-off and banker’s liens against the Deposit Account and all items (and proceeds thereof) that come into possession of Deposit Taker in connection with the Deposit Account.

10. Miscellaneous . This Agreement is binding upon the parties hereto and their respective successors and assigns (including any trustee of LRC appointed or elected in any action under the Bankruptcy Code) and shall inure to their benefit. Neither LRC nor BTMUCLF may assign their respective rights hereunder unless the prior written consent of the Deposit Taker is obtained. Neither this Agreement nor any provision hereof may be changed, amended, modified or waived, except by an instrument in writing signed by the parties hereto. Any provision of this Agreement that may prove unenforceable under any law or regulation shall not affect the validity of any other provision hereof. This Agreement shall be governed by the laws of the State of New York, without giving effect to the conflicts of laws provisions of such State (including, without limitation, Section 5-1401 of the New York General Secured Obligations Law). LRC hereby irrevocably submits to the jurisdiction of the courts of the U.S. Federal and New York State courts sitting in the Borough of Manhattan, New York and waives any objection to or based upon personal jurisdiction, venue, inconvenient forum or service of process in connection with any action or proceeding arising out of or in connection with this Agreement. LRC hereby irrevocably consents to service of process by first class or certified mail, or recognized courier for which a receipt is available, sent to the address shown in Deposit Taker’s records. This Agreement may be executed in any number of counterparts which together shall constitute one and the same instrument. LRC HEREBY IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE PLEDGE AGREEMENT OR ANY RELATED TRANSACTION.

11. Termination and Resignation . This Agreement may be terminated by agreement of BTMUCLF and LRC upon fifteen (15) days’ prior written notice to Deposit Taker; provided, however, that this Agreement shall terminate immediately upon notice from BTMUCLF that all of LRC’s obligations secured by the Pledge Agreement are satisfied. Deposit Taker may, at any time upon thirty (30) days’ prior written notice to BTMUCLF and LRC, terminate this Agreement and close the Deposit Account; provided, however, that a substitute deposit taker has been appointed for BTMUCLF or Participant (in its capacity as a Participant) under and as described in the Pledge Agreement. Upon termination of this Agreement any funds in the Deposit Account shall be subject to the direction of BTMUCLF, including any direction given by BTMUCLF that such funds be wired to another “Deposit Taker” designated for BTMUCLF or such Participant under and as defined in the Pledge Agreement.

 

6


12. Notices . Unless otherwise specifically provided herein, any notice or other communication required or permitted to be given shall be in writing addressed to the respective party as set forth below and may be personally served, telecopied or sent by overnight courier service and shall be deemed to have been given: (a) if delivered in person, when delivered; (b) if delivered by telecopy, on the date of transmission if transmitted on a Business Day before 4:00 P.M. (New York time) (but only if such telecopied document is also delivered by another method permitted by this Agreement by the next banking business day), or, if not, on the next succeeding Business Day; or (c) if delivered by reputable overnight courier, the banking business day on which such delivery is made by such courier.

Notices shall be addressed as follows:

 

BTMUCLF:    BTMU Capital Leasing & Finance, Inc.
   111 Huntington Avenue
   Boston, Massachusetts 02199
   Attention: Portfolio Servicing
   Telecopy:                                 
Deposit Taker:    The Bank of Tokyo-Mitsubishi UFJ, Ltd.
   Global Markets Division for the Americas
   1251 Avenues of the Americas
   New York, New York 10020-1104
   Attn: Charles Catalano, Director – Institutional Sales Department
   Telecopy:                                 
   Email:                                         
LRC:    Lam Research Corporation
  

4300 Cushing Parkway

Fremont, California 94538

   Attention: Odette Go, Treasurer
   Telecopy:                                 
   Email:                                         

or in any case, to such other address as the party addressed shall have previously designated by written notice to the serving party, given in accordance with this Section.

[signature page follows.]

 

7


Please countersign below to indicate your acceptance of our agreement herein.

 

Very truly yours,

LAM RESEARCH CORPORATION,

a Delaware corporation

By:  

 

Name:  

 

Title:  

 

 

ACCEPTED AND AGREED TO as of this      day of             ,         
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
By:  

 

Name:  

 

Title:  

 

 

ACKNOWLEDGED AND AGREED TO as of this      day of             ,         
BTMU CAPITAL LEASING & FINANCE, INC.,
a Delaware corporation

By:

Name:

Title:


Exhibit B

TO PLEDGE AGREEMENT

NOTICE OF LRC’S REQUIREMENT OF

DIRECT PAYMENT TO BTMUCLF

BTMU Capital Leasing & Finance, Inc.

111 Huntington Avenue

Boston, Massachusetts 02199

Attention: Portfolio Servicing

 

Re:    Pledge Agreement (Fremont 4) dated as of December 31, 2013 between Lam Research Corporation and BTMU Capital Leasing & Finance, Inc.

Gentlemen:

Capitalized terms used in this letter are intended to have the meanings assigned to them in the Pledge Agreement (Fremont 4) referenced above (the “Pledge Agreement” ). This letter constitutes notice to you, as secured party under the Pledge Agreement, that pursuant to subparagraph 5(B) of the Pledge Agreement, LRC requires you to withdraw from the Deposit Account and to retain, as a payment from LRC required by Articles XX, XXI or XXII of the Lease, the following amount:

                     Dollars ($         )

on the following date (which, LRC acknowledges, must be the Base Term Expiration Date):

LRC acknowledges that its right to require such withdrawal is subject to the condition that LRC must give this notice to you at least ten days prior to the date of required withdrawal and payment specified above, and also to the condition that no Event of Default (under and as defined in the Pledge Agreement or as defined in the Lease referenced therein) has occurred and is continuing.

Please remember that the express terms of the Pledge Agreement allow the Deposit Takers to require notice of withdrawal at least seven days before Cash Collateral is to be withdrawn from the Deposit Accounts. Accordingly, you must notify the Deposit Takers seven days prior to the withdrawal of Cash Collateral required by this notice.

 

Lam Research Corporation
By:  

 

Name:  

 

Title:  

 

Exhibit 10.27

 

 

 

CONSTRUCTION AGENCY AGREEMENT

(Site Fremont 3E)

D ATED A S O F D ECEMBER  31, 2013

BETWEEN

BTMU CAPITAL LEASING & FINANCE, INC.,

A S L ESSOR

A ND

LAM RESEARCH CORPORATION,

A S C ONSTRUCTOR

 

 

 


TABLE OF CONTENTS

 

ARTICLE I

 

DEFINITIONS

     1   

Section 1.1.

 

Defined Terms

     1   

ARTICLE II

 

APPOINTMENT OF CONSTRUCTOR

     2   

Section 2.1.

 

Appointment

     2   

Section 2.2.

 

Acceptance

     2   

Section 2.3.

 

Term

     2   

Section 2.4.

 

Construction Documents

     2   

Section 2.5.

 

Scope of Authority

     3   

Section 2.6.

 

Construction Budget

     4   

Section 2.7.

 

Covenants of Constructor

     5   

Section 2.8.

 

Governmental Approvals

     9   

ARTICLE III

 

FACILITY

     9   

Section 3.1.

 

Construction

     9   

Section 3.2.

 

Amendments; Modifications; Supplements

     9   

Section 3.3.

 

Casualty, Condemnation and Force Majeure

     10   

ARTICLE IV

 

PAYMENT OF FUNDS

     10   

Section 4.1.

 

Funding of Construction Costs

     10   

ARTICLE V

 

CONSTRUCTION EVENTS OF DEFAULT

     10   

Section 5.1.

 

Construction Events of Default

     10   

Section 5.2.

 

Survival

     12   

Section 5.3.

 

Remedies; Remedies Cumulative

     12   

ARTICLE VI

 

NO CONSTRUCTION FEE

     13   

ARTICLE VII

 

LESSOR’S RIGHTS

     13   

Section 7.1.

 

Lessor’s Right to Cure Constructor’s Defaults

     13   

ARTICLE VIII

 

MISCELLANEOUS

     14   

Section 8.1.

 

Notices

     14   

Section 8.2.

 

Successors and Assigns

     14   

Section 8.3.

 

Governing Law

     14   

Section 8.4.

 

Amendments and Waivers

     14   

Section 8.5.

 

Counterparts

     15   

Section 8.6.

 

Severability

     15   

Section 8.7.

 

Headings and Table of Contents

     15   

Section 8.8.

 

Submission to Jurisdiction

     15   

Section 8.9.

 

Jury Trial

     16   

Section 8.10.

 

Payments

     16   

SCHEDULE 1

 

Initial Construction Deliverables

  

SCHEDULE 2

 

Monthly Construction Deliverables

  

SCHEDULE 3

 

List of Governmental Actions

  


CONSTRUCTION AGENCY AGREEMENT

(FREMONT 3E)

CONSTRUCTION AGENCY AGREEMENT (FREMONT 3E) dated as of December 31, 2013 (this “ Agreement ”), is entered into between BTMU CAPITAL LEASING & FINANCE, INC., a Delaware corporation (“ BTMUCC ” or “ Lessor ”), and LAM RESEARCH CORPORATION (in its capacity as Constructor, “ Constructor ”).

PRELIMINARY STATEMENT

A. LAM Research Corporation, as lessee (the “ Lessee ”), and Lessor, as lessor, are parties to that certain Lease Agreement (Fremont 3E), dated of even date herewith (as amended, supplemented or otherwise modified from time to time pursuant thereto, the “ Lease ”), pursuant to which the Lessee has agreed to lease from the Lessor, and the Lessor has agreed to lease to the Lessee, the Leased Property described therein.

B. The Lessor and the Lessee are also parties to that certain Participation Agreement, dated of even date herewith (as amended, supplemented or otherwise modified, the “ Participation Agreement ”), between the Lessor and the Lessee.

C. Subject to the terms and conditions hereof, (i) the Lessor desires to appoint the Constructor as its sole and exclusive agent and constructor for the construction of the New Improvements (Fremont 3E) in accordance with the Construction Budget and the Plans and Specifications (in each case, as supplemented or amended pursuant to Section 3.2) and pursuant to the terms of the Lease and this Agreement, and (ii) the Constructor desires, on behalf of the Lessor, to cause the New Improvements (Fremont 3E) to be constructed in accordance with the Construction Budget and the Plans and Specifications (in each case, as supplemented or amended pursuant to Section 3.2) and pursuant to the terms of this Agreement and the other Operative Documents.

NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows:

ARTICLE I

DEFINITIONS

SECTION 1.1. Defined Terms.

The capitalized terms used herein and not otherwise defined shall have the meanings ascribed thereto in Appendix I to the Participation Agreement, and the rules of interpretation set forth in Appendix I to the Participation Agreement shall apply to this Agreement.


ARTICLE II

APPOINTMENT OF CONSTRUCTOR

SECTION 2.1. Appointment.

Pursuant to and subject to the terms and conditions set forth herein, in the Participation Agreement and the other Operative Documents, the Lessor hereby irrevocable (during the term of this Agreement) appoints the Constructor to act as its agent in accordance with the Construction Budget and the Plans and Specifications and the requirements set forth in this Agreement and as exclusive constructor for the demolition necessary for, and the construction and installation of, the New Improvements (Fremont 3E) on the Site.

SECTION 2.2. Acceptance.

Constructor hereby unconditionally and irrevocably (during the term of this Agreement) accepts the appointment as agent and as the Constructor and agrees to perform its duties and obligations as set forth in this Agreement.

SECTION 2.3. Term.

This Agreement shall commence on the date hereof and shall terminate upon the first to occur of:

(a) payment by the Lessee of the Break Even Price and all other amounts owing under the Operative Documents, and termination of the Commitments in accordance with the Lease and the Participation Agreement;

(b) termination of this Agreement pursuant to Section 5.1 hereof;

(c) the Completion Date; and

(d) the Construction Period Termination Date.

SECTION 2.4. Construction Documents.

Subject to each of the terms and conditions in this Agreement, the Constructor may execute any of its duties under this Agreement by or through agents, contractors, employees or attorneys-in-fact, and the Constructor shall enter into such agreements (the “ Construction Documents ”) with architects, designers, contractors, manufacturers and other persons who may supply materials, labor, equipment and/or services as the Constructor deems necessary or desirable for the construction and installation of the New Improvements (Fremont 3E) pursuant hereto in its own name (and not, under any circumstance, in the name of the Lessor) provided , however , that no such delegation shall limit or reduce in any way the Constructor’s duties and obligations under this Agreement and provided , further , that contemporaneously with the execution and delivery of each Major Construction Document, the Constructor and the Lessor

 

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will execute and deliver an Assignment of Contract pursuant to which the Constructor assigns to the Lessor all of the Constructor’s rights and interests in such Major Construction Document. The Constructor agrees that (x) as to any Major Construction Document in effect on the Closing Date, it will on or before the Closing Date, and (y) as to any other Major Construction Document, it will on the date of execution of such Major Construction Document, assign its rights and interests in such Major Construction Document to the Lessor in accordance with the Participation Agreement. For purposes hereof, the term “ Major Construction Document ” shall mean any Construction Document calling for payments of $2,000,000 or more during the Lease Term or upon full performance thereof.

SECTION 2.5. Scope of Authority.

(a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, the Lessor hereby agrees with the Constructor and the Constructor unconditionally agrees to take all action necessary or desirable for the performance and satisfaction of all of the Constructor’s obligations hereunder, including, without limitation:

(i) all design and supervisory functions relating to and necessary for the construction of the New Improvements (Fremont 3E) on the Site, as applicable;

(ii) negotiating and entering into all contracts or arrangements to procure the labor, materials, equipment and supplies necessary to construct the New Improvements (Fremont 3E) on such terms and conditions as are customary and reasonable in light of local standards and practices;

(iii) obtaining all necessary permits, licenses, consents, approvals and other authorizations, including those required under Applicable Laws (including Environmental Laws), from all Authorities in connection with the development and construction of the New Improvements (Fremont 3E) in all material respects in accordance with the Plans and Specifications;

(iv) maintaining all books and records with respect to the construction, operation and management of the Site and the New Improvements (Fremont 3E):

(v) performing any other acts necessary in connection with the construction and development of the New Improvements (Fremont 3E) in all material respects in accordance with the Plans and Specifications, Applicable Laws and all Insurance Requirements including, without limitation, applicable zoning ordinances;

(vi) paying (subject to the Participation Agreement), in accordance with the Participation Agreement, all Construction Costs to be paid during the Construction Period;

(vii) enforcing, as and when commercially reasonable, performance by each party to each Construction Document of its respective obligations, warranties and other

 

3


design, construction and other obligations with respect to the design, engineering, construction and completion of the New Improvements (Fremont 3E) and pursuing remedies with respect to the breach of those obligations; and

(viii) to the extent permitted under the Operative Documents, using the proceeds of any property insurance maintained with respect to the New Improvements (Fremont 3E) to complete construction of or rebuild any portion of the New Improvements (Fremont 3E) with respect to an Event of Loss or a Casualty occurring with respect to that portion of the New Improvements (Fremont 3E) and in accordance with Article XIII of the Lease.

If a Construction Event of Default has occurred and is continuing, the Constructor or any agent or contractor of the Constructor shall not have the authority to take any of the above-described actions without the prior written consent of the Lessor.

(b) Subject to the terms and conditions of this Agreement and the other Operative Documents, the Constructor shall have sole management, control and responsibility over and the liability for the Construction, construction means, methods (including testing of the New Improvements (Fremont 3E) or any part thereof), sequences and procedures, including testing (running) the New Improvements (Fremont 3E), the use of Hazardous Materials, and the hiring, termination and contracting for and supervision of and payment for labor, personnel and services with respect to the construction of the New Improvements (Fremont 3E). Constructor acknowledges and agrees that, until such time as the Lessor or its designee has taken possession of the New Improvements (Fremont 3E) through the exercise of remedies under the Operative Documents or pursuant to a return of the New Improvements (Fremont 3E) to the Lessor or its designee permitted under the Operative Documents, as between the Lessor and the Constructor, the Constructor will have at all times sole dominion over and control of the New Improvements (Fremont 3E) and the Site and that the Constructor will bear all responsibility for injuries and mishaps to third parties and their property on the Site.

(c) All fees and expenses of the Lessee under any Operative Document which are of the type included in the Construction Budget shall be paid or reimbursed through Advances as provided in the Participation Agreement.

SECTION 2.6. Construction Budget.

At least ten (10) Business Days prior to the commencement of Construction of a Component of the New Improvements (Fremont 3E) (excluding the razing and salvage of existing improvements, grading and ground improvements on Site Fremont 3E), Constructor shall prepare and deliver, or cause to be prepared and delivered, to the Lessor and the Construction Consultant the proposed final Construction Budget for such Component of the New Improvements (Fremont 3E), setting forth in reasonable detail the budget for the Construction of the applicable Component of the New Improvements (Fremont 3E) on the Site in all material respects in accordance with the Plans and Specifications and all related costs including, without limitation, the Carrying Costs expected to accrue during the Construction Period and other

 

4


Construction Costs; provided that Constructor shall use commercially reasonable efforts to deliver, or cause to be delivered, such Construction Budget at least fifteen (15) Business Days prior to such commencement. Such Construction Budget shall include a line item for the amount of any insurance deductible applicable to the insurance required by the Insurance Requirements. The Constructor shall cause such Construction Budget to be updated as necessary to reflect any changes based on updated or otherwise modified Plans and Specifications delivered in accordance with Section 2.7(o), and shall deliver such any updated Construction Budget promptly to the Lessor and the Construction Consultant. The Construction Budget, together with the previously incurred capitalized costs, shall not exceed the Commitment Amount. Each Construction Budget shall be approved by Lessor and its Construction Consultant, such approval not to be unreasonably withheld, on or prior to the commencement of construction of the New Improvements (Fremont 3E). Failure of the Lessor to approve or disapprove of the Construction Budget ( provided that the proposed Construction Budget is delivered in accordance with the first sentence of this Section and the proposed final Plans and Specifications and the other Initial Construction Deliverables are delivered in accordance with Section 2.7(o)) prior to such date shall be deemed to be approval thereof. The Lessee may, without obtaining Lessor’s consent, reallocate contingency and cost savings in any line item of the Construction Budge to other budgeted line items provided that the limitations set forth herein with respect to change orders shall remain applicable.

SECTION 2.7. Covenants of Constructor.

Constructor hereby covenants and agrees that with respect to the Leased Property and the Site it will:

(a) promptly notify the Construction Consultant and the Lessor of (i) any material defaults or material failures to perform under any Major Construction Document or of any Force Majeure Event and (ii) the Completion of the New Improvements (Fremont 3E);

(b) provide the Construction Consultant and the Lessor reasonable access to the New Improvements (Fremont 3E), to the Site and to all construction records necessary to confirm compliance with this Agreement and the other Operative Documents during normal business hours, at reasonable intervals and with reasonable prior notice to Constructor, subject to reasonable safety and confidentiality requirements of the Constructor;

(c) subject to Constructor’s right to engage in Permitted Contests in accordance with Section 9.5 of the Lease, cause all Liens (including Liens or claims for materials supplied or labor or services performed in connection with the construction of the New Improvements (Fremont 3E)), other than Permitted Liens, to be discharged with proceeds of Advances;

(d) comply in all material respects with the Insurance Requirements;

(e) cause Construction of the New Improvements (Fremont 3E) to be prosecuted diligently and without undue and unscheduled interruption (except to the extent due to a Force

 

5


Majeure Event) in all material respects in accordance with the Plans and Specifications and cause the Completion Date to occur on or before the Construction Period Termination Date;

(f) on a quarterly basis from and after the Closing Date provide to the Construction Consultant and the Lessor (i) copies of each change order, notice or other communication received under any Construction Document which involves an increased amount of $1,000,000 or more or which, when aggregated with amounts associated with other such change orders, notices and other communications received under such Construction Document for such quarterly period, exceeds $2,000,000 and (ii) a report describing in sufficient detail the status and progress of the construction of the New Improvements (Fremont 3E);

(g) at all times maintain the New Improvements (Fremont 3E) under construction in such a way that (i) the New Improvements (Fremont 3E) under construction meet, in all material respects, the standards required to be met under the Applicable Laws and under the insurance policies required under the Insurance Requirements and (ii) such construction does not constitute a danger to persons or things;

(h) ensure that each Major Construction Document will be entered into by the Constructor in all material respects in accordance with the Plans and Specifications, and also ensure that such Major Construction Documents contain warranties in accordance with customary industry practice;

(i) ensure that each Major Construction Document will explicitly provide that the rights of the Constructor can be assigned and pledged without consent of the counterparty thereto or that the consent of such counterparty to the assignment and pledge of such Major Construction Document to Lessor has been obtained simultaneously with the execution and delivery of such Major Construction Document;

(j) send the Lessor a copy of each Major Construction Document promptly upon the execution of such Major Construction Document by all parties thereto, provided , that the Constructor shall be deemed to have satisfied this obligation by its attaching such copy to an Advance Request submitted by the Constructor to the Lessor within the calendar month following the execution of such Major Construction Document;

(k) to the extent reasonably practicable, provide the Construction Consultant and the Lessor with advance notice of any proposed change order under any Construction Document involving an increased amount in excess of $1,000,000 or which, together with other change orders received under such Construction Document involves an increased amount in excess of $2,000,000, and prior to agreeing to any such change order the Constructor will certify to the Lessor that, after giving effect to such change order the remaining available Commitments of the Lessor are sufficient to finance Completion of construction of the New Improvements (Fremont 3E) in all material respects in accordance with the Plans and Specifications and within the Construction Budget;

 

6


(l) cause to be promptly and duly taken, executed, acknowledged and delivered all such further acts, documents and assurances as the Lessor reasonably may request from time to time in order to carry out more effectively the intent and purposes of this Agreement and the other Operative Documents and the Overall Transaction. The Lessor, the Lessee and the Constructor, as a Transaction Cost or a Construction Cost, as applicable, will cause all financing statements (including precautionary financing statements), fixture filings, mortgages and other documents, to be recorded or filed at such places and time in such manner, and will take all such other actions or cause such actions to be taken, as may be necessary or as may be reasonably requested by the Lessee or the Lessor in order to establish, preserve, protect and (if applicable under Applicable Laws) perfect the interests of the Lessor in the Construction Documents, the Lien of the Lessor in the Lessee Collateral and the Lessor’s rights under this Agreement and the other Operative Documents;

(m) to ensure its compliance with Section 2.7(g) hereof, observe and comply with heightened standard of care if a change in Applicable Laws after the Closing Date would require a heightened standard of care in order to comply with such covenant at all times. Constructor agrees to enter into amendments of such covenant from time to time upon the reasonable request of the Lessor in order to more fully give effect to the foregoing agreement;

(n) ensure that the maintenance, operation and construction of the structures constituting part of the Leased Property at any time will be done in such a manner that such structures will meet the standards which, in the given circumstances, they may be expected to meet so as not to constitute a danger to persons or things;

(o) at least ten (10) Business Days prior to the commencement of Construction of a Component of the New Improvements (Fremont 3E) (excluding the razing and salvage of existing improvements, grading and ground improvements on Site Fremont 3E), deliver copies of the proposed final Plans and Specifications for such Component of the New Improvements (Fremont 3E) and the other deliverables listed on Schedule 1 hereto (the “ Initial Construction Deliverables ”) to the Lessor and the Construction Consultant, which Plans and Specifications and Initial Construction Deliverables shall be approved by Lessor and the Construction Consultant, such approval not to be unreasonably withheld, on or prior to the commencement of such construction of the New Improvements (Fremont 3E); provided that Constructor shall use commercially reasonable efforts to deliver such Plans and Specifications and Initial Construction Documents at least fifteen (15) Business Days prior to such commencement. Promptly after becoming available from Constructor’s vendors or preparation by the Constructor, the Constructor will deliver copies of any draft Plans and Specifications for the New Improvements (Fremont 3E) to the Lessor and the Construction Consultant. The Constructor will cause all Plans and Specifications for the New Improvements (Fremont 3E) to be delivered to the Lessor by the completion of the engineering phase of the project;

(p) not agree to any modification or series of modifications (including, but not limited to by entering into any change orders) of any Major Construction Document which, when aggregated with amounts associated with other such modifications under the Major Construction

 

7


Documents, exceeds $4,000,000 without the consent of Lessor (which consent shall not be unreasonably withheld, conditioned or delayed); provided , that at such time as Lessor has first provided its consent to any such modification pursuant to this clause (p), the consent of the Lessor (which consent shall not be unreasonably withheld, conditioned or delayed) shall not be required for any further such modifications until such time as the aggregate amount of such further modifications permitted and made without Lessor’s consent (including the subject modification(s)) exceeds $2,000,000;

(q) provide to the Construction Consultant and the Lessor promptly upon receipt thereof, copies of all notices and other correspondence received by Constructor from any Authority and any relating to the remediation of any Environmental Violations related to the Site or the New Improvements (Fremont 3E);

(r) take all necessary actions required to remediate any soil contamination related to the Site or the New Improvements (Fremont 3E) on or before the Completion Date so that no Environmental Violation related to the New Improvements (Fremont 3E) or the Site will exist; provided , that in no event shall the failure of the Constructor to satisfy the terms of this paragraph (r) be deemed to prevent the Completion Date from having occurred;

(s) take all such actions, and use all commercially reasonable efforts to obtain all necessary permissions, required to effect a non-exclusive assignment to the Lessor, on or before the Completion Date, of the benefits of any environmental indemnity or cost reimbursement agreement issued to the Constructor by any Authority for any Environmental Violation related to the Site;

(t) apply all funds received by the Constructor from any Authority, insurer or other third-party which are given with the intent that they be applied to remediate any Environmental Violation in or around the Site or relating to the New Improvements (Fremont 3E) for such intended purposes. Further, the Constructor shall not apply any such funds in a manner which unduly discriminates against the Site in favor of other parcels owned by the Constructor and located in the vicinity of the Site;

(u) if necessary in order that the construction, use and occupancy of the New Improvements (Fremont 3E) and the Existing Improvements (Fremont 3) shall comply with Applicable Law including, without limitation, applicable zoning ordinances, cause the legal subdivision between Site Fremont 2 and Site Fremont 3 to be relocated, which the parties agree is within the control of the Constructor; and

(v) provide to the Lessor and the Construction Consultant the deliverables listed on Schedule 2 hereto each month, and otherwise cooperate with the Lessor and the Construction Consultant, in each case in order for the Construction Consultant to update the Construction Report every three (3) months during the Construction Period and to confirm its opinion of reasonableness contained in the Construction Report. Such update will include, among other things the Construction Consultant’s reasonable belief as to whether (i) the remaining Available Commitment of the Lessor is sufficient to (A) complete construction of the New Improvements

 

8


(Fremont 3E) in accordance with the Plans and Specifications and the Construction Budget (in each case, as supplemented or amended pursuant to Section 3.2) on or before the Construction Period Termination Date, and (B) pay all Construction Costs, and (ii) construction of the New Improvements (Fremont 3E) cannot be completed for any reason on or prior to the Construction Period Termination Date. The Constructor shall consult with the Construction Consultant upon reasonable request therefor from time to time.

SECTION 2.8. Governmental Approvals.

As of the date of the Closing Date and each Advance Date, Constructor hereby represents and warrants that, other than with respect to environmental matters, which are treated exclusively in Section 4.1(q) of the Participation Agreement, the list of Governmental Actions set forth as Schedule 3 hereto, as it may be amended from time to time, lists all material Governmental Actions necessary in connection with the construction of the New Improvements (Fremont 3E). Lessor acknowledges that in connection with the issuance of the building permit for the New Improvements (Fremont 3E) the City of Fremont may require a recorded restriction on the number of office seats in the New Improvements (Fremont 3E). Lessor shall reasonably cooperate with Constructor to approve, execute and record such restriction and shall not unreasonably withhold, condition or delay its consent thereto.

ARTICLE III

FACILITY

SECTION 3.1. Construction.

Constructor shall, in compliance with this Agreement and in all material respects with the Plans and Specifications and the Construction Budget (in each case as supplemented or amended pursuant to Section 3.2 below), cause the New Improvements (Fremont 3E) to be constructed, equipped, maintained and used on the Site, in accordance with the Construction Documents, all Applicable Laws and all Insurance Requirements.

SECTION 3.2. Amendments; Modifications; Supplements.

Constructor may, subject to the conditions, restrictions and limitations set forth herein and in the other Operative Documents, at any time during the Construction Period amend or modify (it being understood that any change order will be an amendment subject to this Section 3.2) the Plans and Specifications and individual line items in the Construction Budget without the consent of the Lessor provided , however , that no such supplement, amendment or modification (including any change order), individually or in the aggregate shall, after giving effect thereto, (i) materially diminish (A) the utility of the New Improvements (Fremont 3E) as a corporate office complex including a corporate office building and a research and development center, respectively, when completed, (B) the expected New Improvements (Fremont 3E)’s Fair Market Value as of the Construction Period Expiration Date (as shall be certified by the Constructor in its Advance Request with reference to the Appraisal), or (C) the Fair Market Value (as set forth in the Appraisal delivered on the Closing Date) as of the Base Term

 

9


Expiration Date, (ii) cause the remaining Available Commitment of the Lessor to be insufficient to complete construction of the New Improvements (Fremont 3E) in all material respects in accordance with the Plans and Specifications and the Construction Budget, or (iii) delay construction of the New Improvements (Fremont 3E) beyond the Construction Period Termination Date in all material respects in accordance with the Plans and Specifications, subject to permitted change orders. Constructor shall supplement the Plans and Specifications in accordance with Section 2.7(o) hereof from time to time.

SECTION 3.3. Casualty, Condemnation and Force Majeure.

If at any time prior to the Completion Date there occurs a Casualty or a Force Majeure Event or the Lessor or the Constructor receives notice of a Condemnation, then, except as otherwise provided in Article XIII of the Lease, in each case the Constructor shall promptly and diligently complete, in all material respects in accordance with the Plans and Specifications (as supplemented or amended pursuant to Section 3.2) and with the terms hereof, the construction of the New Improvements (Fremont 3E), and cause the Completion Date to occur on or prior to the Construction Period Termination Date.

ARTICLE IV

PAYMENT OF FUNDS

SECTION 4.1. Funding of Construction Costs.

(a) During the Construction Period, the Constructor shall request that the Lessor advance funds for the payment of Construction Costs and the Lessor will comply with such request, in each case, to the extent provided for under, and subject to the conditions, restrictions and limitations contained in, this Agreement, the Participation Agreement and the Lease with respect to the funding of Advances. Constructor and the Lessor acknowledge and agree that the Constructor’s right to request funds and the Lessor’s obligation to advance funds for the payment of the Construction Costs are subject in all respects to the terms and the conditions hereof and of the Participation Agreement and the other Operative Documents.

(b) The proceeds of any funds made available to the Lessor for Construction Costs shall be made available to the Constructor in accordance with the Advance Request relating thereto and subject to the terms and conditions hereof and of the Participation Agreement. Constructor will use such proceeds only to reimburse itself or pay for the Construction Costs set forth in the Advance Request relating to such funds. Specifically, but without limitation, no Advances shall be used for general corporate purposes of the Constructor or the Lessee.

ARTICLE V

CONSTRUCTION EVENTS OF DEFAULT

SECTION 5.1. Construction Events of Default.

 

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If any one or more of the following events (each a “ Construction Event of Default ”) shall occur:

(a) the Completion Date shall fail to occur, for any reason, on or prior to the Construction Period Termination Date, subject to extension for Force Majeure Events;

(b) at any time, (i) the remaining Available Commitment of the Lessor is not sufficient to (A) complete construction of the New Improvements (Fremont 3E) in all material respects in accordance with the Plans and Specifications and the Construction Budget (in each case, as supplemented or amended pursuant to Section 3.2) on or before the Construction Period Termination Date or (B) subject to any increase in Commitments permitted under Section 3.4(e) of the Participation Agreement, pay all Construction Costs or (ii) subject to any extension of the Construction Period permitted under Section 3.4(f) of the Participation Agreement, construction of the New Improvements (Fremont 3E) cannot be completed for any reason on or prior to the Construction Period Termination Date;

(c) Constructor fails to apply Advances to the payment of Construction Costs or comply with the covenants set forth in Sections 2.7(d), (p) or (t);

(d) Constructor fails to comply with the covenants set forth in Sections 2.7(a)(i), (b), (f), (k), (o) or (v) and such failure shall remain uncured for a period of ten (10) days after the earlier of the date Constructor has Actual Knowledge or receives notice thereof from Lessor;

(e) Construction fails to comply with the covenants set forth in Sections 2.7(a) (other than as set forth in clause (d) above), (c), (g), (h), (i), (s) or (u), and such failure shall remain uncured for a period of forty-five (45) days after the earlier of the date Constructor has Actual Knowledge or receives notice thereof from Lessor;

(f) Constructor fails in any material respect to observe or perform any other term, covenant or condition of this Agreement (except those specified in clauses (a) through (e) above), and such failure shall remain uncured for a period of ninety (90) days after the earlier of the date Constructor has Actual Knowledge or receives notice thereof from Lessor; or

(g) any Event of Default under the Lease shall have occurred and be continuing;

then, in any such event, the Lessor may, in addition to the other rights and remedies provided for in this Article V, immediately terminate this Agreement (in the sole discretion of the Lessor) by giving the Constructor written notice of such termination and, upon the giving of such notice, this Agreement shall terminate. Upon termination of this Agreement, all rights of the Constructor and all obligations of the Lessor under this Agreement shall cease. Subject to Section 5.3(c) hereof, the Constructor shall pay upon demand all reasonable costs, expenses, losses, expenditures and damages (including, without limitation, reasonable attorneys’ fees) incurred by or on behalf of the Lessor in connection with any Construction Event of Default and such obligations shall survive the termination of this Agreement. Notwithstanding the foregoing, the Constructor shall have the right to cure any Construction Event of Default by purchasing, or

 

11


causing to be purchased, the Leased Property from the Lessor in accordance with the terms and subject to the conditions, restrictions and limitations of Section 20.1 of the Lease.

SECTION 5.2. Survival.

The termination of this Agreement pursuant to Section 5.1 shall in no event relieve the Constructor of its liability and obligations hereunder which accrued prior to such termination, all of which shall survive any such termination.

SECTION 5.3. Remedies; Remedies Cumulative.

(a) Upon the occurrence of a Construction Event of Default, at the Lessor’s option and without limiting the Lessor in the exercise of any other right or remedy the Lessor may have on account of such default (including, without limitation, any rights or remedies under the Lease and the other Operative Documents) and without any further demand or notice, the Lessor may take any of the following actions to the fullest extent permitted by Applicable Law and Regulations, either individually or in combination with any other such remedy, the Lessor may:

(i) exercise any and all rights and may pursue any and all remedies provided to it in the Lease, the terms and provisions of which are incorporated herein by this reference;

(ii) replace the Constructor and cause construction of the New Improvements (Fremont 3E) to be completed and require the Constructor to pay to the Lessor any damages as a result thereof;

(iii) require the Constructor to complete construction of all or part of the New Improvements (Fremont 3E) with Advances and require the Constructor to pay to the Lessor any damages as a result thereof;

(iv) terminate this Agreement;

(v) terminate the Construction Commitment for the Construction of the New Improvements (Fremont 3E);

(vi) exercise any and all of its rights under the Construction Documents and/or continue to make any or all payments thereunder (including on an accelerated basis);

(vii) exercise any other right or remedy that may be available to it under Applicable Laws or in equity, or proceed by appropriate court action (legal or equitable) to enforce the terms or to recover damages for the breach hereof; and

(viii) exercise any and all of its rights under the other Operative Documents in accordance with the terms thereof.

 

12


(b) To the extent permitted by, and subject to the mandatory requirements of, Applicable Laws, each and every right, power and remedy herein specifically given to the Lessor or otherwise in this Agreement or in any other Operative Document shall be cumulative and shall be in addition to every other right, power and remedy herein specifically given or now or hereafter existing at law, in equity or by statute, and each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised from time to time and as often and in such order as may be deemed expedient by the Lessor, and the exercise or the beginning of the exercise of any power or remedy shall not be construed to be a waiver of the right to exercise at the same time or thereafter any other right, power or remedy. No delay or omission by the Lessor in the exercise of any right, power or remedy or in the pursuit of any remedy shall impair any such right, power or remedy or be construed to be a waiver of any default on the part of the Constructor or be an acquiescence therein. Lessor’s consent to any request made by the Constructor shall not be deemed to constitute or preclude the necessity for obtaining the Lessor’s consent, in the future, to all similar requests. No express or implied waiver by the Lessor of any Construction Event of Default shall in any way be, or be construed to be, a waiver of any future or subsequent Construction Event of Default. To the extent permitted by Applicable Laws, the Constructor hereby waives any rights now or hereafter conferred by statute or otherwise that may require the Lessor to sell, lease or otherwise use the Leased Property or any part thereof in mitigation of the Lessor’s damages upon the occurrence of a Construction Event of Default or that may otherwise limit or modify any of the Lessor’s rights or remedies under this Article V.

(c) Notwithstanding anything set forth herein to the contrary, during the Construction Period, the aggregate amount payable by the Constructor on a recourse basis under this Article V shall be subject to the limitations on recourse liability set forth in Section 18.5 of the Lease and, if applicable, in Section 13.1(a) of the Lease, subject to the rights and remedies of the Lessor and the Indemnitees set forth therein.

ARTICLE VI

NO CONSTRUCTION FEE

Constructor will not be entitled to, and the Lessor shall have no obligation to pay, any agency fee or other fee or compensation, and the Constructor shall not be entitled to, and the Lessor shall have no obligation to make or pay, any reimbursement therefor, it being understood that this Agreement is being entered into as consideration for and as an inducement to the Lessor and Constructor entering into the Lease and the other Operative Documents.

ARTICLE VII

LESSOR’S RIGHTS

SECTION 7.1. Lessor’s Right to Cure Constructor’s Defaults.

Lessor, without waiving or releasing any obligation or Construction Event of Default, may (but shall be under no obligation to) remedy any Construction Event of Default for the account of and at the sole cost and expense of the Constructor and in furtherance of such

 

13


right, the Lessor may make Advance Requests and otherwise exercise all rights and perform all duties of the Constructor and the Lessee hereunder and under the Participation Agreement with respect to the construction of the New Improvements (Fremont 3E). All reasonable out of pocket costs and expenses so incurred (including reasonable fees and expenses of counsel), together with interest thereon at the Overdue Rate from the date on which such sums or expenses are paid by the Lessor shall be paid by the Constructor to the Lessor on demand, provided that any such expenses shall be subject to the limitations on recourse liability set forth in Section 18.5 of the Lease and, if applicable, in Section 13.1(a) of the Lease.

ARTICLE VIII

MISCELLANEOUS

SECTION 8.1. Notices.

All notices, consents, directions, approvals, instructions, requests, demands and other communications required or permitted by the terms hereof to be given to any Person shall be given in writing in the manner provided in, shall be sent to the respective addresses set forth in, and the effectiveness thereof shall be governed by the provisions of, Section 8.3 of the Participation Agreement.

SECTION 8.2. Successors and Assigns.

This Agreement shall be binding upon and inure to the benefit of the Lessor, the Constructor and their respective successors and assigns provided , however , that the Constructor shall not assign any of its rights (except pursuant to Article XII of the Lease) or, except as permitted by Sections 2.4, 2.6 and 2.7 hereof, delegate any of its duties or obligations under this Agreement without the prior written consent of the Lessor, which consent may be granted or withheld in the Lessor’s sole and absolute discretion.

SECTION 8.3. Governing Law.

This Agreement has been delivered in, and shall in all respects be governed by and construed in accordance with the laws of, the State of New York, without regard to conflicts of laws principles (except Section 5-1401 of the New York General Obligations Law), including any matters of construction, validity and performance, except to the extent that, pursuant to the laws of State of California, the laws of the State of California are required to be applied hereto.

SECTION 8.4. Amendments and Waivers.

Lessor and Constructor may from time to time, enter into written amendments, supplements or modifications hereto, subject only to the restrictions set forth in Section 8.5 of the Participation Agreement.

 

14


SECTION 8.5. Counterparts.

This Agreement may be executed on any number of separate counterparts and all of said counterparts taken together shall be deemed to constitute one and the same instrument.

SECTION 8.6. Severability.

Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

SECTION 8.7. Headings and Table of Contents.

The headings and table of contents contained in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.

SECTION 8.8. Submission to Jurisdiction.

EACH OF CONSTRUCTOR AND THE LESSOR IRREVOCABLY AND UNCONDITIONALLY:

(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS CONSTRUCTION AGENCY AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE SOLE AND EXCLUSIVE GENERAL JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, AND APPELLATE COURTS FROM ANY THEREOF;

(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDINGS MAY BE BROUGHT TO SUCH COURTS, AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND AGREES NOT TO PLEAD OR CLAIM THE SAME:

(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MALL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS SET FORTH ON SCHEDULE II TO THE PARTICIPATION AGREEMENT OR AT SUCH OTHER ADDRESS OF WHICH THE OTHER PARTIES HERETO SHALL HAVE BEEN NOTIFIED PURSUANT TO SECTION 8.3 OF THE PARTICIPATION AGREEMENT; AND

 

15


(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION.

SECTION 8.9. Jury Trial.

EACH OF CONSTRUCTOR AND LESSOR IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS CONSTRUCTION AGENCY AGREEMENT OR ANY OTHER OPERATIVE DOCUMENT OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS CONSTRUCTION AGENCY AGREEMENT OR ANY OTHER OPERATIVE DOCUMENT AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.

SECTION 8.10. Payments.

All payments to be made by the Constructor hereunder shall be made to the Lessor in Dollars in immediately available and freely transferable funds at the place of payment, all such payments to be paid without setoff, counterclaim or reduction and without deduction for, and free from, any and all present or future taxes, levies, imposts, duties, fees, charges, deductions, withholding or liabilities with respect thereto or any restrictions or conditions of any nature. If the Constructor is required by law to make any deduction or withholding on account of any Tax or other withholding or deduction from any sum payable by the Constructor hereunder, the Constructor shall pay any such Tax or other withholding or deduction and shall make such payment on a Grossed Up Basis, subject to the restrictions on recourse liability set forth in Section 18.5 of the Lease, the limitations set forth in Sections 7.2(a)(iii) and 7.4 of the Participation Agreement, reimbursement obligations of Indemnitees set forth in Sections 7.2(a)(iii), 7.2(e) and 7.2(f) of the Participation Agreement and other rights of Lessee set forth in Sections 7.2(b)(i), 7.2(e), 7.2(f) and 7.4 of the Participation Agreement.

[Signature Pages Follow]

 

16


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their proper and duly authorized representatives as of the day and year first above written.

 

LAM RESEARCH CORPORATION ,
A S C ONSTRUCTOR
By:  

/s/ Odette Go

Name:   Odette Go
Title:   Treasurer

 

[Signature Page to Construction Agency Agreement (Site Fremont 3E)]


BTMU CAPITAL LEASING & FINANCE, INC. ,
A S L ESSOR
By:  

/s/ Michael D. Doyle

Name:   Michael D. Doyle
Title:   President

 

[Signature Page to Construction Agency Agreement (Site Fremont 3E)]


SCHEDULE 1

To Construction Agency Agreement

Initial Construction Deliverables

Development Team

 

    Directory of Development Team

 

    Architect’s Qualification Statement (AIA B431)

 

    Contractor’s Qualification Statement (AIA 305) (including list of current projects)

 

    Contractor’s Bonding Company

 

    (Carrier, Total Bonding Capacity, and Amount of Uncommitted Capacity)

 

    Contractor’s Insurance Certificate

 

    (Carrier and Summary of Coverage)

 

    Contractor’s Financial Statement (most recent three years)

Contracts

 

    GC/CM Contract (with all Exhibits, Riders, Schedules & Exclusions/Qualifications)

 

    Trade Contracts (with all Exhibits, Riders, Schedules & Exclusions/Qualifications)

 

    Architect’s Contract

 

    Abatement Contracts

 

    Other Contracts

Construction Documents and Cost

 

    Property Survey ALTA

 

    Geo-technical / Soils Report (only if excavation work is required)\

 

    Plans (including site, architectural, structural, mechanical, electrical, plumbing, fire protection, landscaping and life safety) (reduced size plans are preferable)

 

    Specifications

 

    Trade Cost Breakdown GC

 

    Construction Schedule

Approvals

 

    Zoning Documents and Approvals

 

    Zoning Calculations

 

    DOB Applications (if required)

 

    Building Permits

 

    Special Permits


SCHEDULE 2

To Construction Agency Agreement

Monthly Construction Deliverables

 

    Application for Payment (AIA G702 & G703) including back-up applications

 

    Executed Change Orders (AIA G701)

 

    Advance Request, if applicable

 

    Contractors Lien Waivers as required by Loan Documents

 

    Potential Change Order (PCO) Log

 

    Updated Construction Schedule

 

    Updated Construction Budget

 

    Updated Plans and Specifications


SCHEDULE 3

To Construction Agency Agreement

List of Governmental Actions

Building-Related Permits/Approvals :

Fremont 2 Demo Permit

Conditional Use Permit (this is a Planning permit related to hazardous materials)

Fremont 3E Warm Shell Building Permit (this includes site utility improvements, landscape, shell and office core, dock, utility pad area only and mezzanine structure and fence, rooftop equipment for office only, mech platform for future scrubbers)

Fremont 3E Office TI

Fremont 3E Utility Yard build out (this includes the bunkers and equipment)

Fremont 3E Fab TI (includes fan deck equipment and scrubbers)

Environmental-Related Permits/Approvals :

City of Fremont

Closure notification & closure plan (submitted 11/20); post-closure report

Hazmat disclosure statements associated with building/construction permit(s) (as needed)

Revised HMBP for Fremont 3/Fremont 3E, updated financial assurance

State Water Resources Control Board

Construction stormwater permit

Union Sanitary District

Groundwater discharge permit for dewatering from trenching/excavating

Industrial wastewater permit

Bay Area Air Quality Management District

Asbestos removal

Demolition notification

Authority to construct for scrubber, POU abatement, if any

Department of Industrial Relations

Air tank/pressure vessel permit

Exhibit 10.28

A MENDMENT TO E MPLOYMENT A GREEMENT

This A MENDMENT TO T HE E MPLOYMENT A GREEMENT (this “Amendment”) is entered into effective this      th day of                      , 201      (the “Effective Date”), by and between Lam Research Corporation, a Delaware corporation (the “Company”), and                                          (the “Executive”).

R ECITALS

W HEREAS , the Executive and the Company (the “Parties”) previously entered into an employment agreement effective                      (the “Employment Agreement” and, as amended hereby, the “Agreement”); and

W HEREAS , the Parties desire to amend the Employment Agreement to clarify the treatment of Market-Based Performance Restricted Stock Units, a new type of restricted stock unit provided by the Company to the Executive with the number of shares paid based on the relative performance of the total stockholder return of the Company’s common stock compared to that of a designated comparison group (“mPRSU”).

N OW , T HEREFORE , in consideration of the promises and mutual covenants herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

A GREEMENT

 

1. Section 5.(a)(iv) is amended and restated in its entirety, as follows:

“(iv) Except as provided in Section 5.(f) below, the unvested portion(s) of any stock options/Restricted Stock Units (“RSUs”) that were granted to Executive prior to the Change in Control shall automatically be accelerated in full (which, for performance-based equity awards that are not mPRSUs, shall mean at target number of shares) so as to become completely vested as of the Termination Date. Unless the grant was made prior to July 1, 2009, the stock options shall remain exercisable for two years following the Termination Date unless they are earlier exercised or expire pursuant to their original terms or unless they are exchanged for cash in connection with any Change in Control. For options granted prior to July 1, 2009, the grant’s award agreement shall control how long the options shall remain exercisable 1 . The Company will issue the shares underlying the RSUs within ten (10) days of the Termination Date.”

 

2. Section 5.(d) is amended and restated in its entirety, as follows:

“(d) Except as provided in Section 5.(f) below, if the Company is acquired by another entity in connection with a Change in Control and there is or will be no market for the Common Stock of the Company, the vesting of all (which, for performance-based equity awards that are not mPRSUs, shall mean at target number of shares) Executive’s stock options/RSUs, granted prior to the Change in Control, will accelerate immediately prior to the Change in Control (and, for stock options, be immediately exercisable) if the acquiring company does not provide Executive with stock options/RSUs comparable to the unvested stock options/RSUs granted Executive by the Company, regardless of whether the Executive’s employment is terminated.”

 

1   Generally, option award agreements allow exercise of the option for periods ranging from thirty (30) days to one (1) year after termination of employment, depending on the option plan and the nature of the termination.

 

Page 1 of 5


A MENDMENT TO E MPLOYMENT A GREEMENT

 

3. Section 5.(f) is added to the Employment Agreement, as follows:

“(f) In the event of a Change in Control, for any mPRSU awards outstanding at the time of the Change in Control, the mPRSUs shall be converted into a Cash Award as determined under the terms of the mPRSU Award Agreement. For the avoidance of doubt, mPRSUs shall not receive the treatment outlined in Sections 5.(a)(iv) or 5.(d) of the Employment Agreement, which applies to stock options and RSUs (including performance-based RSUs that are not mPRSUs).

(i) Change in Control, Involuntary Termination . In the case of a Change in Control where the Executive’s employment terminates due to an Involuntary Termination prior to twelve (12) months following the Change in Control or in contemplation of a Change in Control, the Cash Award (as defined in the mPRSU Award Agreement), shall be paid out to the Executive within ten (10) days following the Termination Date.

(ii) Change in Control, No Termination . In the case of a Change in Control where the Executive’s employment does not terminate within twelve (12) months following the Change in Control or in contemplation of a Change in Control, the Executive shall receive the Cash Award when ordinarily paid out (under the mPRSU Award Agreement).”

 

4. Section 6.(b)(i)(C) is amended and restated in its entirety, as follows:

“(C) Stock options will cease to vest on the Termination Date and will be cancelled ninety (90) days after the Termination Date (unless they are exercised or expire pursuant to their terms before cancellation). RSUs and mPRSUs will be cancelled on the Termination Date.”

 

5. Section 6.(b)(ii)(E) is amended and restated in its entirety, as follows:

“(E) Except as provided in Section 6.(b)(ii)(G)* below, for any stock options/RSUs granted to the Executive twelve (12) months or more before the Termination Date, a number of shares shall vest (and for stock options, become exercisable as of the Termination Date) such that the total number of shares vested on the Termination Date shall equal a pro-rata percentage of the total number of shares (which, for performance-based equity awards that are not mPRSUs, shall mean at target) subject to such grant (based on the number of full months worked during the vesting schedule) 2 . Unless the grant was made prior to July 1, 2009, the stock options shall remain exercisable for two years following the Termination Date unless they are earlier exercised or expire pursuant to their original terms or unless they are exchanged for cash in connection with any Change in Control. For options granted prior to July 1, 2009, the grant’s award agreement shall control how long the options shall remain exercisable. The

 

2   For example, if a stock option has a four (4) year vesting schedule where 25% of the options vest on each anniversary of the grant date, an Executive whose Termination Date is twenty seven (27) months and a day after grant will already have vested in 50% of the total option, and will vest in an additional 6.25% (3/48) of the total option by virtue of this section. No additional vesting shall occur beyond this additional amount.
* “G” will be “H” in Douglas R. Bettinger’s Agreement
**

“F” will be “G” in Douglas R. Bettinger’s Agreement

 

Page 2 of 5


A MENDMENT TO E MPLOYMENT A GREEMENT

 

Company will issue the shares underlying the RSUs to the Executive within ten (10) days following the Termination Date. In addition, the independent members of the Board may, in their discretion, accelerate the vesting of additional stock options or RSUs held by the Executive.”

 

6. Section 6.(b)(ii)(G)* is added to the Employment Agreement, as follows:

“(G)* In the event of an Involuntary Termination prior to the end of the mPRSU Performance Period (as defined in the mPRSU Award Agreement), a portion of the mPRSUs shall convert into a cash payment (the “Cash Payment”). The Cash Payment shall be determined by multiplying the Target Number of mPRSUs (as set forth in the mPRSU Award Agreement) by the total number of days from the Grant Date (as defined in the mPRSU Award Agreement) until the Termination Date divided by the number of days in the Performance Period (as defined in the mPRSU Award Agreement) (the “Termination Target Shares”). The Company’s performance under the Vesting Formula (as set forth in the mPRSU Award Agreement and using the 50-trading day average closing price through the Termination Date) from the first day of the Performance Period until the Termination Date shall be applied to the Termination Target Shares to determine the number of shares to convert into the Cash Payment. This number of shares shall be multiplied by the closing price of the Company’s common stock as of the Termination Date to determine the dollar amount of the Cash Payment. The Cash Payment will be paid to the Executive within ten (10) days following the Termination Date. Any remaining portion of the mPRSUs that are not converted into a Cash Payment shall be cancelled.

For the avoidance of doubt, mPRSUs shall not receive the treatment outlined in Section 6.(b)(ii)(E) of the Employment Agreement, which applies to stock options and RSUs (including performance-based RSUs that are not mPRSUs).”

 

7. Section 6.(b)(iii)(C) is amended and restated in its entirety, as follows:

“(C) Stock options will cease to vest on the Termination Date and will be cancelled thirty (30) days after the Termination Date (unless they are exercised or expire pursuant to their terms before cancellation). RSUs and mPRSUs will be cancelled on the Termination Date.”

 

8. Section 6.(b)(iv)(D) is amended and restated in its entirety, as follows:

“(D) Except as provided in Section 6.(b)(iv)(F)** below, for any stock options/RSUs granted to the Executive before the Termination Date, a number of shares (which, for performance-based equity awards that are not mPRSUs, shall mean at target) shall vest so that the greater of (x) 50% of the shares in each grant are immediately vested (and, for stock options, become exercisable) or (y) the total number of shares vested (and for stock options, become exercisable) on the Termination Date shall equal a pro-rata percentage of the total number of shares subject to such grant (based on the number of full months worked during the vesting schedule). Unless the grant was made prior to July 1, 2009, the stock options shall remain exercisable for two years following the Termination Date unless they are earlier exercised or expire pursuant to their original terms, or unless they are exchanged for cash in connection with any Change in Control. For options granted prior to July 1, 2009, the grant’s award agreement shall control how long the options shall remain exercisable. The Company will issue the shares underlying the RSUs to the Executive’s estate within ten (10) days following the Termination Date. In addition, the independent members of the Board may, in their discretion, accelerate the vesting of additional stock options or RSUs held by the Executive.”

 

Page 3 of 5


A MENDMENT TO E MPLOYMENT A GREEMENT

 

9. Section 6.(b)(iv)(F)** is added to the Employment Agreement, as follows:

“(F)** A portion of the mPRSUs shall vest on the Termination Date. To determine the applicable Target Number of mPRSUs (as set forth in the mPRSU Award Agreement) shall be multiplied by the total number of days from the Grant Date (as defined in the mPRSU Award Agreement) until the Termination Date, divided by the number of days in the Performance Period (as defined in the mPRSU Award Agreement) to determine the “death pro rata” target number of shares. The Company’s performance under the Vesting Formula (as set forth in the mPRSU Award Agreement) from the first day of the Performance Period until the Termination Date shall be applied to the greater of: (i) the “death pro rata” target number of shares or (ii) 50% of the original Target Number of mPRSUs (as set forth in the mPRSU Award Agreement), to determine the number of shares which shall be paid to the Executive’s estate within ten (10) days of the Termination Date. Any remaining unvested portion of the mPRSUs shall be cancelled.”

 

10. Section 6.(b)(v)(D) is amended and restated in its entirety, as follows:

“(D) Except as provided in Section 6.(b)(v)(F)** below, for any stock options/RSUs granted to the Executive before the Termination Date, a number of shares (which, for performance-based equity awards that are not mPRSUs, shall mean at target) shall vest so that the greater of (x) 50% of the shares in each grant are immediately vested (and, for stock options, become exercisable) or (y) the total number of shares vested (and for stock options, become exercisable) on the Termination Date shall equal a pro-rata percentage of the total number of shares subject to such grant (based on the number of full months worked during the vesting schedule). Unless the grant was made prior to July 1, 2009, the stock options shall remain exercisable for two years following the Termination Date unless they are earlier exercised or expire pursuant to their original terms, or unless they are exchanged for cash in connection with any Change in Control. For options granted prior to July 1, 2009, the grant’s award agreement shall control how long the options shall remain exercisable. The Company will issue the shares underlying the RSUs to the Executive within ten (10) days following the Termination Date. In addition, the independent members of the Board may, in their discretion, accelerate the vesting of additional stock options or RSUs held by the Executive.”

 

11. Section 6.(b)(v)(F)** is added to the Employment Agreement, as follows:

“(F)** A portion of the mPRSUs shall vest on the Termination Date. To determine the applicable Target Number of mPRSUs (as set forth in the mPRSU Award Agreement) shall be multiplied by the total number of days from the Grant Date (as defined in the mPRSU Award Agreement) until the Termination Date, divided by the number of days in the Performance Period (as defined in the mPRSU Award Agreement) to determine the “disability pro rata” target number of shares. The Company’s performance under the Vesting Formula (as set forth in the mPRSU Award Agreement) from the first day of the Performance Period until the Termination Date shall be applied to the greater of: (i) the “disability pro rata” target number of shares or (ii) 50% of the original Target Number of mPRSUs (as set forth in the mPRSU Award Agreement), to determine the number of shares which shall be paid to the Executive within ten (10) days of the Termination Date. Any remaining unvested portion of the mPRSUs shall be cancelled.”

 

Page 4 of 5


A MENDMENT TO E MPLOYMENT A GREEMENT

 

IN WITNESS WHEREOF, the Parties have duly executed this Agreement effective as of the day and year first written above.

 

L AM R ESEARCH C ORPORATION
By:    
Name:     
Title:    
Dated:     

 

 

 

   

 

[Insert Executive Name]
Dated:     

 

Page 5 of 5

Exhibit 10.29

A MENDMENT TO C HANGE IN C ONTROL A GREEMENT

This A MENDMENT TO THE C HANGE IN C ONTROL A GREEMENT (this “Amendment”) is entered into effective this      th day of                      , 201      (the “Effective Date”), by and between Lam Research Corporation, a Delaware corporation (the “Company”), and                                          (the “Executive”).

R ECITALS

W HEREAS , the Executive and the Company (the “Parties”) previously entered into a change in control agreement effective                      (the “Change in Control Agreement” and, as amended hereby, the “Agreement”); and

W HEREAS , the Parties desire to amend the Change in Control Agreement to clarify the treatment of Market-Based Performance Restricted Stock Units, a new type of restricted stock unit provided by the Company to the Executive with the number of shares paid based on the relative performance of the total stockholder return of the Company’s common stock compared to that of a designated comparison group (“mPRSU”).

N OW , T HEREFORE , in consideration of the promises and mutual covenants herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

A GREEMENT

 

1. Section 1.(d) is amended and restated in its entirety, as follows:

“(d) Equity Awards . Except as provided in Section 1.(e) below, the unvested portion(s) of any stock options/Restricted Stock Units (“RSUs”) that were granted to Executive prior to the Change in Control shall automatically be accelerated in full (which, for performance-based equity awards that are not mPRSUs, shall mean at target number of shares) so as to become completely vested as of the Termination Date. Unless the grant was made prior to the effective date of this Agreement, the stock options shall remain exercisable for two years following the Termination Date unless they are earlier exercised or expire pursuant to their original terms, or unless they are exchanged for cash in connection with any Change in Control. For options granted prior to the effective date of this Agreement, the grant’s award agreement shall control its exercisability 1 . The Company will issue the shares underlying the RSUs within ten (10) days of the Termination Date.”

 

2. Section 1.(e) is added to the Change in Control Agreement, as follows:

“(e) In the event of a Change in Control, for any mPRSU awards outstanding at the time of the Change in Control, the mPRSUs shall be converted into a Cash Award as determined under the terms of the mPRSU Award Agreement. For the avoidance of doubt, mPRSUs shall not receive the treatment outlined in Sections 1.(d) or 4 of the Change in Control Agreement), which applies to stock options and RSUs (including performance-based RSUs that are not mPRSUs).

 

 

1   Generally, option award agreements allow exercise of the option for periods ranging from thirty (30) days to one (1) year after termination of employment, depending on the option plan and the nature of the termination.

 

Page 1 of 2


A MENDMENT TO C HANGE IN C ONTROL A GREEMENT

 

(i) Change in Control, Involuntary Termination . In the case of a Change in Control where the Executive’s employment terminates due to an Involuntary Termination prior to twelve (12) months following the Change in Control or in contemplation of a Change in Control, the Cash Award (as defined in the mPRSU Award Agreement), shall be paid out to the Executive within ten (10) days following the Termination Date.

(ii) Change in Control, No Termination . In the case of a Change in Control where the Executive’s employment does not terminate within twelve (12) months following the Change in Control or in contemplation of a Change in Control, the Executive shall receive the Cash Award (as defined in the mPRSU Award Agreement) when ordinarily paid out (under the mPRSU Award Agreement).”

 

3. Section 4. is amended and restated in its entirety, as follows:

“4. Acceleration . Except as provided in Section 1.(e) above, if the Company is acquired by another entity in connection with a Change in Control and there is or will be no market for the Common Stock of the Company, the vesting of all (which, for performance-based equity awards that are not mPRSUs, shall mean at target number of shares) Executive’s stock options/RSUs, granted prior to the Change in Control, will accelerate immediately prior to the Change in Control (and, for stock options, be immediately exercisable) if the acquiring company does not provide Executive with stock options/RSUs comparable to the unvested stock options/RSUs granted Executive by the Company, regardless of whether the Executive’s employment is terminated.”

IN WITNESS WHEREOF, the Parties have duly executed this Agreement effective as of the day and year first written above.

 

L AM R ESEARCH C ORPORATION
By:    
Name:     
Title:    
Dated:     

 

 

 

   

 

[Insert Executive Name]
Dated:     

 

 

Page 2 of 2

Exhibit 31.1

RULE 13a-14(a)/15d-14(a) CERTIFICATION (PRINCIPAL EXECUTIVE OFFICER)

I, Martin B. Anstice, certify that:

1. I have reviewed this quarterly report on Form 10-Q of Lam Research Corporation;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c) evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d) disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

February 6, 2014

 

/s/ Martin B. Anstice

Martin B. Anstice
President and Chief Executive Officer

Exhibit 31.2

RULE 13a-14(a)/15d-14(a) CERTIFICATION (PRINCIPAL FINANCIAL OFFICER)

I, Douglas R. Bettinger, certify that:

1. I have reviewed this quarterly report on Form 10-Q of Lam Research Corporation;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c) evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d) disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

February 6, 2014

 

/s/ Douglas R. Bettinger

Douglas R. Bettinger
Executive Vice President, Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)

Exhibit 32.1

SECTION 1350 CERTIFICATION (PRINCIPAL EXECUTIVE OFFICER)

In connection with the Quarterly Report of Lam Research Corporation (the “Company”) on Form 10-Q for the fiscal period ending December 29, 2013 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Martin B. Anstice, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, to my knowledge, that:

(1) The Report fully complies with the requirements of section 13(a) or 15(d) , as applicable, of the Securities Exchange Act of 1934; and

(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

February 6, 2014

 

/s/ Martin B. Anstice

Martin B. Anstice
President and Chief Executive Officer

The foregoing certification is being furnished solely pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, and will not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or otherwise subject to the liability of that section. Such certification will not be deemed incorporated by reference into any filing under the Securities Act of 1933, as amended, or the Exchange Act, except to the extent that the Company specifically incorporates it by reference.

Exhibit 32.2

SECTION 1350 CERTIFICATION (PRINCIPAL FINANCIAL OFFICER)

In connection with the Quarterly Report of Lam Research Corporation (the “Company”) on Form 10-Q for the fiscal period ending December 29, 2013 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Douglas R. Bettinger, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, to my knowledge, that:

(1) The Report fully complies with the requirements of section 13(a) or 15(d) , as applicable, of the Securities Exchange Act of 1934; and

(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

February 6, 2014

 

/s/ Douglas R. Bettinger

Douglas R. Bettinger
Executive Vice President, Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)

The foregoing certification is being furnished solely pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, and will not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or otherwise subject to the liability of that section. Such certification will not be deemed incorporated by reference into any filing under the Securities Act of 1933, as amended, or the Exchange Act, except to the extent that the Company specifically incorporates it by reference.