MASTER LEASE
dated as of April 30, 1997
between
CREDIT SUISSE LEASING 92A, L.P.,
as Lessor
and
APPLIED MATERIALS, INC.,
as Lessee
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Real Estate and Equipment Facility
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This Lease is subject to a lien in favor of Credit Suisse First Boston, acting through its New York Branch, as Agent (the "Agent") under a Loan Agreement dated as of April 30, 1997 among Credit Suisse Leasing 92A, L.P., the Lenders, and Agent, as amended or supplemented from time to time. This Lease has been executed in several counterparts. To the extent, if any, that this Lease constitutes chattel paper (as such term is defined in the Uniform Commercial Code as in effect in any applicable jurisdiction), no lien on this Lease may be created through the transfer or possession of any counterpart other than the original counterpart containing the receipt therefor executed by Agent on the signature page hereof.
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TABLE OF CONTENTS
SECTION PAGE - - ------- ----
ARTICLE I
DEFINITIONS; INTERPRETATION
1.1 Definitions; Interpretation.............................................................1
ARTICLE II
LEASE OF PROPERTIES; TERM
2.1 Acceptance and Lease of Site............................................................2 2.2 Acceptance Procedure for Site...........................................................2 2.3 Acceptance and Lease of Equipment.......................................................2 2.4 Acceptance Procedure for Equipment......................................................3 2.5 Term....................................................................................3 2.6 Title...................................................................................4 2.7 Other Property..........................................................................4
ARTICLE III
RENT
3.1 Rent....................................................................................4 3.2 Payment of Basic Rent...................................................................5 3.3 Payment of Supplemental Rent............................................................5 3.4 Method and Amount of Payment............................................................6 3.5 Late Payments...........................................................................6
ARTICLE IV
UTILITY CHARGES
4.1 Utility Charges for Site................................................................7
ARTICLE V
QUIET ENJOYMENT
5.1 Quiet Enjoyment of Leased Property......................................................7
ARTICLE VI
NET LEASE
6.1 Net Lease...............................................................................7 6.2 No Termination or Abatement.............................................................9
ARTICLE VII
SUBLETTING; ASSIGNMENT
7.1 Subletting and Assignment...............................................................9
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TABLE OF CONTENTS
(CONTINUED) SECTION PAGE - - ------- ----
ARTICLE VIII
CONDITION OF LEASED PROPERTY
8.1 Condition of the Sites and the Units of Equipment......................................10 8.2 Possession and Use of the Leased Property..............................................11
ARTICLE IX
COMPLIANCE WITH LEGAL AND INSURANCE REQUIREMENTS
9.1 Compliance with Applicable Laws and Regulations and
Insurance Requirements.................................................................12
ARTICLE X
MAINTENANCE
10.1 Maintenance and Repair; Return........................................................12
ARTICLE XI
MODIFICATIONS AND ALTERATIONS
11.1 Modifications of Sites................................................................13 11.2 Modifications and Alterations of Equipment............................................14
ARTICLE XII
TITLE
12.1 Warrant of Title......................................................................15 12.2 Grants and Releases of Easements on Sites.............................................16
ARTICLE XIII
PERMITTED CONTESTS
13.1 Permitted Contests in Respect of Applicable Laws
and Regulations.......................................................................17
ARTICLE XIV
INSURANCE
14.1 Public Liability and Workers' Compensation Insurance..................................18 14.2 Hazard and Other Insurance............................................................18 14.3 Coverage..............................................................................19
ARTICLE XV
CASUALTY; CONDEMNATION; ENVIRONMENTAL MATTERS
15.1 Casualty and Condemnation.............................................................20 15.2 Environmental Matters.................................................................25
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TABLE OF CONTENTS
(CONTINUED) SECTION PAGE - - ------- ---- 15.3 Notice of Environmental Matters.......................................................26
ARTICLE XVI
NOTIFICATION UPON CASUALTY, CONDEMNATION
OR ENVIRONMENTAL EVENT WITH RESPECT TO A SITE
16.1 Notification upon Certain Events......................................................26 16.2 Procedures............................................................................26
ARTICLE XVII
LEASE EVENTS OF DEFAULT
17.1 Lease Events of Default...............................................................27 17.2 Remedies..............................................................................30 17.3 Waiver of Certain Rights..............................................................33 17.4 Power of Sale and Foreclosure.........................................................33 17.5 Remedies Cumulative...................................................................34
ARTICLE XVIII
RIGHT TO PERFORM FOR LESSEE
18.1 Lessor's Right to Cure Lessee's Lease Defaults........................................34
ARTICLE XIX
PROCEDURES FOR TRANSFER OF PROPERTIES
19.1 Conveyance of Leased Property; Exercise of Purchase
Option or Obligation..................................................................34
ARTICLE XX
PURCHASE OPTION
20.1 Purchase Option.......................................................................36 20.2 Expiration Date Purchase Obligation...................................................38 20.3 Acceleration of Purchase Obligation...................................................39
ARTICLE XXI
RIGHT TO RENEW
21.1 Site Renewal..........................................................................39 21.2 Equipment Renewal.....................................................................40
ARTICLE XXII
REMARKETING
22.1 Option to Remarket Sites..............................................................41 22.2 Option to Remarket the Equipment......................................................43
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TABLE OF CONTENTS
(CONTINUED)
SECTION PAGE - - ------- ----
22.3 Conditions to and Requirements of Remarketing Options.................................44 22.4 Certain Obligations Continue..........................................................48 22.5 Appraisal.............................................................................48
ARTICLE XXIII
[RESERVED]
ARTICLE XXIV
HOLDING OVER
24.1 Holding Over..........................................................................50
ARTICLE XXV
RISK OF LOSS
25.1 Risk of Loss..........................................................................50
ARTICLE XXVI
OWNERSHIP OF THE LEASED PROPERTY
26.1 Nature of Transaction.................................................................51
ARTICLE XXVII
ESTOPPEL CERTIFICATES
27.1 Estoppel Certificates.................................................................53
ARTICLE XXVIII
INSPECTIONS; NO WAIVER
28.1 Right to Inspect......................................................................53 28.2 No Waiver.............................................................................54
ARTICLE XXIX
ACCEPTANCE OF SURRENDER
29.1 Acceptance of Surrender...............................................................54
ARTICLE XXX
NO MERGER OF TITLE
30.1 No Merger of Title....................................................................54
ARTICLE XXXI
NOTICES
31.1 Notices...............................................................................55
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TABLE OF CONTENTS
(CONTINUED) SECTION PAGE - - ------- ----
ARTICLE XXXII
MISCELLANEOUS
32.1 Miscellaneous.........................................................................55 32.2 Amendment; Complete Agreements........................................................55 32.3 Successors and Assigns................................................................56 32.4 Headings and Table of Contents........................................................56 32.5 Counterparts..........................................................................56 32.6 GOVERNING LAW.........................................................................56 32.7 Liability of Lessor Limited...........................................................56 32.8 Original Lease........................................................................57
APPENDIX 1 Definitions and Interpretation
EXHIBIT A-1 Form of Site Lease Supplement (California) EXHIBIT A-2 Form of Site Lease Supplement (Other States) EXHIBIT B Form of Equipment Lease Supplement
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MASTER LEASE
MASTER LEASE (including all Lease Supplements from time to time executed and delivered, this "Lease"), dated as of April 30, 1997, between CREDIT SUISSE LEASING, 92A, L.P., a Delaware limited partnership, having its principal office at 11 Madison Avenue, 19th Floor, New York, New York, as Lessor and APPLIED MATERIALS, INC., a Delaware corporation, having its principal office at 3050 Bowers Avenue, Santa Clara, California, as Lessee.
W I T N E S S E T H:
A. Lessor will, subject to the terms and conditions of the Participation Agreement, (i) purchase the Existing Sites on the Document Closing Date, (ii) purchase from one or more third parties designated by Lessee on each Site Acquisition Date either (A) one or more Developed Sites and/or (B) one or more Construction Sites (provided, however, if the Land with respect to a Construction Site is owned by Lessee on the Site Acquisition Date, Lessee will lease such Land to Lessor pursuant to a Ground Lease), and (iii) purchase from one or more third parties designated by Lessee on each Equipment Acquisition Date certain Units of Equipment.
B. Lessor desires to lease (or sublease) to Lessee, and Lessee desires to lease (or sublease) from Lessor, each Site and each Unit of Equipment.
C. With respect to each Construction Site, Lessee, as Construction Agent, will construct the Facility which will, as constructed, be the property of Lessor and will become part of such Site subject to the terms of this Lease.
NOW, THEREFORE, in consideration of the foregoing, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; INTERPRETATION
1.1 Definitions; Interpretation. Capitalized terms used but not otherwise defined in this Lease have the respective meanings specified in Appendix 1 to this Lease; and the rules ofinterpretation set forth in Appendix 1 to this Lease shall apply to this Lease.
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ARTICLE II
LEASE OF PROPERTIES; TERM
2.1 Acceptance and Lease of Site. On each Site Acquisition Date, Lessor, subject to the satisfaction or waiver of the conditions set forth in Article 6 of the Participation Agreement, hereby agrees to accept delivery on such Site Acquisition Date of the Land (fee title or, in the case of a Construction Site where the Land is owned by Lessee, a leasehold interest) to be delivered on such Site Acquisition Date together with any existing Facility thereon pursuant to the terms of the Participation Agreement and the applicable Site Lease Supplement and simultaneously to lease (or sublease) to Lessee for the Site Term (as defined in Section 2.5(a)), Lessor's interest in such Land and in such Facility together with any Facility or Modifications to an existing Facility which thereafter may be constructed thereon pursuant to the Construction Agency Agreement (in the case of any Construction Site) or this Lease, and Lessee hereby agrees, expressly for the direct benefit of Lessor, to lease commencing on such Site Acquisition Date from Lessor for the Site Term, Lessor's interest in such Land to be delivered on such Site Acquisition Date together with Lessor's interest in any existing Facility thereon or any Facility or Modification to an existing Facility which thereafter may be constructed thereon pursuant to the Construction Agency Agreement (in the case of any Construction Site) and this Lease.
2.2 Acceptance Procedure for Site. Lessor hereby authorizes one or more employees of Lessee, to be designated by Lessee, as the authorized representative or representatives of Lessor to accept delivery on behalf of Lessor of the Site identified on the applicable Advance Request. Lessee hereby agrees that such acceptance of delivery by such authorized representative or representatives and the execution and delivery by Lessee on each Site Acquisition Date of a Site Lease Supplement (appropriately completed) shall, without further act, constitute the irrevocable acceptance by Lessee of such Site which is the subject thereof for all purposes of this Lease and the other Operative Documents on the terms set forth therein and herein, and that such Site, together with any Facility or Modifications to a Facility constructed thereon pursuant to the Construction Agency Agreement and this Lease, shall be deemed to be included in the Leased Property and shall be subject to the terms and conditions of this Lease on such Site Acquisition Date.
2.3 Acceptance and Lease of Equipment. On each Equipment Acquisition Date, Lessor, subject to the satisfaction or waiver of the conditions set forth in Article 6 of the Participation Agreement, hereby agrees to accept delivery on such Equipment Acquisition Date of the interest in the Units of Equipment of an
-2- 9 Equipment Group to be delivered on such Equipment Acquisition Date pursuant to the terms of the Participation Agreement and the applicable Equipment Lease Supplement and simultaneously to lease to Lessee for the applicable Equipment Term (as defined in Section 2.5(b)) Lessor's interest in such Units of Equipment of an Equipment Group, and Lessee hereby agrees, expressly for the direct benefit of Lessor, to lease commencing on such Equipment Acquisition Date from Lessor for the applicable Equipment Term, Lessor's interest in such Units of Equipment to be delivered on such Equipment Acquisition Date.
2.4 Acceptance Procedure for Equipment. Lessor hereby authorizes one or more employees of Lessee, to be designated by Lessee, as the authorized representative or representatives of Lessor to accept delivery on behalf of Lessor of the Units of Equipment identified on Schedule I to each Equipment Lease Supplement executed by Lessee on the related Equipment Acquisition Date. Lessee hereby agrees that such acceptance of delivery by such authorized representative or representatives and the execution and delivery by Lessee on each Equipment Acquisition Date of an Equipment Lease Supplement (appropriately completed) shall, without further act, constitute the irrevocable acceptance by Lessee of such Units of Equipment which are the subject thereof for all purposes of this Lease and the other Operative Documents on the terms set forth therein and herein and that such Units of Equipment shall be deemed to be included in the leasehold estate of this Lease and shall be subject to the terms and conditions of this Lease on such Equipment Acquisition Date.
2.5 Term.
(a) Site Term. The term of the Site Lease Supplement with respect to each Site (the "Site Term") shall begin on the Site Acquisition Date for such Site and shall end on the date (such date, the "Site Expiration Date") which is the earlier of (i) the day preceding the fifth (5th) anniversary of the Site Acquisition Date, or, if the Site Term is renewed in accordance with Article XXI hereof, the day preceding the anniversary date, requested by Lessee pursuant to Section 21.1, of the Site Renewal Effective Date, (ii) the date on which such Site Lease Supplement is terminated in accordance with the provisions of this Lease or (iii) the Maturity Date.
(b) Equipment Term. The term with respect to an Equipment Group subject to this Lease (the "Equipment Term")shall begin on the Equipment Acquisition Date for such Equipment Group and shall end on the date (such date, the "Equipment Pool Expiration Date") which is the earlier of (i) the day preceding the Original Equipment Pool Expiration Date relating to the Equipment Pool of which such Equipment Group constitutes a part,
-3- 10 or, if the Equipment Term relating to the entire Equipment Pool is renewed in accordance with Article XXI hereof, the day preceding the first (1st) anniversary of the Equipment Renewal Effective Date relating to such Equipment Pool, (ii) the date on which this Lease is terminated with respect to such Equipment Group in accordance with the provisions of this Lease or (iii) the Maturity Date.
(c) Lease Term. The term of this Lease (the "Term") shall begin on the Document Closing Date and shall end on the date of the last occurring Site Expiration Date or Equipment Pool Expiration Date.
2.6 Title. Each Site and Unit of Equipment is leased (or subleased) to Lessee without any representation or warranty, express or implied, by Lessor and subject to the rights of parties in possession, the existing state of title (including, without limitation, the Permitted Exceptions), and all Applicable Laws and Regulations. Lessee shall in no event have any recourse against Lessor for any defect in or exception to title to any Leased Property other than resulting from Lessor Liens.
2.7 Other Property. Lessee may from time to time own or hold under lease from Persons other than Lessor, furniture, trade fixtures, equipment and other tangible personal property (including software) located on or about any Site and which personal property is not subject to this Lease. Lessor shall from time to time, upon the reasonable request, and at the sole cost and expense of Lessee, which request shall be accompanied by such supporting information and documents as Lessor may reasonably require, promptly acknowledge in writing to Lessee or other Persons that the particular items of furniture, trade fixtures and equipment in question and which are located on a Site are not part of the Leased Property and that, subject to the rights of Lessor under any other Operative Documents, Lessor does not own or have any other right or interest in or to such furniture, trade fixtures and equipment (other than the Equipment).
ARTICLE III
RENT
3.1 Rent. (a) During the Term, Lessee shall pay (i) Basic Rent when due as specified in Section 3.2 below and (ii) Supplemental Rent when due as specified in Section 3.3 below.
(b) Neither Lessee's inability or failure to take possession of all or any portion of any Leased Property when delivered by Lessor, nor Lessor's inability or failure to deliver
-4- 11 all or any portion of any Leased Property to Lessee on or before the applicable Site Acquisition Date or Equipment Acquisition Date, as the case may be, nor Lessor's inability or failure to timely deliver any invoice for Rent or notice relating to the calculation, method or place of payment, whether or not attributable to any act or omission of Lessee or any act or omission of Lessor, or for any other reason whatsoever, shall delay or otherwise affect Lessee's obligation to pay Rent for such Leased Property in accordance with the terms of this Lease.
3.2 Payment of Basic Rent. Lessee shall pay Basic Rent (i) on each Payment Date, (ii) on the date required under Section 20.1 in connection with Lessee's exercise of the Purchase Option, (iii) on the date required under Section 22.3 in connection with Lessee's exercise of a Site Remarketing Option or an Equipment Pool Remarketing Option, (iv) on demand as specified in Section 24.1 relating to a holdover by Lessee and (v) on any date on which this Lease shall terminate with respect to any or all of the Leased Property. Basic Rent shall be paid absolutely net to Lessor, so that this Lease shall yield to Lessor the full amount thereof, without setoff, deduction or reduction.
3.3 Payment of Supplemental Rent. Lessee shall pay to Lessor or the Person entitled thereto any and all Supplemental Rent promptly as the same shall become due and payable. Lessee shall pay to Lessor, as Supplemental Rent, on demand, among other things, (a) all amounts payable by Lessee to Lessor pursuant to (i) Section 18.1 hereof or otherwise representing amounts advanced (other than Advances) by any Participant or Agent directly on behalf of Lessee or for the Leased Property and for which Lessee is obligated to repay or to reimburse such Person pursuant to the Operative Documents, (ii) any provision hereof requiring Lessee to indemnify Agent, Lessor or any other Participant, and (iii) any provision requiring Lessee to make a payment upon termination of this Lease with respect to any or all of the Leased Property, and (b) to the extent permitted by Applicable Laws and Regulations, interest at the applicable Overdue Rate on any installment of Basic Rent not paid when due for the period for which the same shall be overdue and on any payment of Supplemental Rent not paid when due or demanded, as the case may be, by Lessor for the period from the due date or the date of any such demand, as the case may be, until the same shall be paid. Supplemental Rent constituting Commitment Fees shall be paid in accordance with Section 4.7 of the ParticipationAgreement. All other amounts constituting Supplemental Rent, except for amounts relating to the Document Closing Date, which amounts shall be paid on or before such date, shall be paid by Lessee to Lessor within thirty (30) days of receiving an invoice therefor. The expiration or other termination of Lessee's obligations to pay Basic Rent hereunder shall not limit or modify the obligations of Lessee with respect to Supplemental Rent.
-5- 12 Unless expressly provided otherwise in this Lease, in the event of any failure on the part of Lessee to pay and discharge any Supplemental Rent as and when due, Lessee shall also promptly pay and discharge any fine, penalty, interest or cost which may be assessed or added under any agreement with a third party for nonpayment or late payment of such Supplemental Rent, all of which shall also constitute Supplemental Rent.
3.4 Method and Amount of Payment. Basic Rent and Supplemental Rent shall be paid to Lessor (or, in the case of Supplemental Rent, to such Person as may be entitled thereto) at such place as Lessor (or such other Person) shal ...
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