\nParties……………………………………………………………. 2
\n1. Demise of Premises………………………………………………. 2
\n2. Certain Definitions……………………………………………… 2
\n3. Title and Condition……………………………………………… 7
\n4. Use of Leased Premises; Quiet Enjoyment……………………………. 8
\n5. Term…………………………………………………………… 9
\n6. Basic Rent……………………………………………………… 10
\n7. Additional Rent…………………………………………………. 10
\n8. Net Lease; Non-Terminability……………………………………… 11
\n9. Payment of Impositions…………………………………………… 12
\n10. Compliance with Laws and Easement Agreements; Environmental Matters….. 13
\n11. Liens; Recording……………………………………………….. 15
\n12. Maintenance and Repair………………………………………….. 16
\n13. Alterations and Improvements…………………………………….. 17
\n14. Permitted Contests……………………………………………… 17
\n15. Indemnification………………………………………………… 18
\n16. Insurance……………………………………………………… 19
\n17. Casualty and Condemnation……………………………………….. 22
\n18. Termination Events……………………………………………… 23
\n19. Restoration……………………………………………………. 24
\n20. INTENTIONALLY DELETED…………………………………………… 25
\n21. Assignment and Subletting; Prohibition against Leasehold Financing…… 25
\n22. Events of Default………………………………………………. 27
\n23. Remedies and Damages Upon Default………………………………… 28
\n24. Notices……………………………………………………….. 31
\n25. Estoppel Certificate……………………………………………. 32
\n26. Surrender……………………………………………………… 32
\n27. No Merger of Title……………………………………………… 32
\n28. Books and Records………………………………………………. 32
\n29. INTENTIONALLY DELETED…………………………………………… 34
\n30. Non-Recourse as to Landlord……………………………………… 34
\n31. Financing……………………………………………………… 35
\n32. Subordination, Non-Disturbance and Attornment……………………… 35
\n33. INTENTIONALLY DELETED…………………………………………… 35
\n34. Tax Treatment; Reporting………………………………………… 35
\n35. Excess Land……………………………………………………. 35
\n36. Financing Major Alterations……………………………………… 36
\n37. Security Deposit……………………………………………….. 37
\n38. Right of First Refusal………………………………………….. 39
\n39. Miscellaneous………………………………………………….. 41
\n<\/c><\/s><\/caption>\n<\/table>\nEXHIBITS
\n——–<\/p>\n
Exhibit “A-1” – Premises
\n Exhibit “A-2” – Excess Land
\n Exhibit “B” – Machinery and Equipment
\n Exhibit “C” – Schedule of Permitted Encumbrances
\n Exhibit “D” – Rent Schedule
\n Exhibit “E” – Intentionally Deleted<\/p>\n
-i-<\/p>\n
Exhibit “F” – Form of Subordination, Non-Disturbance and Attornment
\n Agreement
\n Exhibit “G” — Schedule of Termination Amounts<\/p>\n
-ii-<\/p>\n
LEASE AGREEMENT, made as of the 22nd day of December, 1998, between
\nDELAWARE CHIP LLC, a Delaware limited liability company (“Landlord”), with an
\n ——–
\naddress c\/o W. P. Carey & Co., Inc., 50 Rockefeller Plaza, 2nd Floor, New York,
\nNew York 10020, and ADVANCED MICRO DEVICES, INC., a Delaware corporation<\/p>\n
(“Tenant”), with an address at One AMD Place, Sunnyvale, California 94088.
\n——– <\/p>\n
In consideration of the rents and provisions herein stipulated to be
\npaid and performed, Landlord and Tenant hereby covenant and agree as follows:<\/p>\n
1. Demise of Premises. Landlord hereby demises and lets to
\n ——————
\nTenant, and Tenant hereby takes and leases from Landlord, for the term and upon
\nthe provisions hereinafter specified, the following described property
\n(collectively, the “Leased Premises”): (a) the premises described in Exhibit
\n ————— ——-
\n“A” hereto, together with the Appurtenances (collectively, the “Land”); (b) the
\n— —-
\nbuildings, structures and other improvements now or hereafter constructed on the
\nLand (collectively, the “Improvements”); and (c) the fixtures, machinery,
\n ————
\nequipment and other property described in Exhibit “B” hereto (collectively, the
\n ———–
\n“Equipment”).
\n ——— <\/p>\n
2. Certain Definitions.
\n ——————- <\/p>\n
“Additional Rent” shall mean Additional Rent as defined in
\nParagraph 7.<\/p>\n
“Adjoining Property” shall mean all sidewalks, driveways, curbs,
\ngores and vault spaces adjoining any of the Leased Premises.<\/p>\n
“Alterations” shall mean all changes, additions, improvements or
\nrepairs to, all alterations, reconstructions, renewals, replacements or removals
\nof and all substitutions or replacements for any of the Improvements or
\nEquipment, both interior and exterior, structural and non-structural, and
\nordinary and extraordinary.<\/p>\n
“Appurtenances” shall mean all tenements, hereditaments,
\neasements, rights-of-way, rights, privileges in and to the Land, including (a)
\neasements over other lands granted by any Easement Agreement and (b) any
\nstreets, ways, alleys, vaults, gores or strips of land adjoining the Land.<\/p>\n
“Assignment” shall mean any assignment of rents and leases from
\nLandlord to a Lender which (a) encumbers any of the Leased Premises and (b)
\nsecures Landlord’s obligation to repay a Loan, as the same may be amended,
\nsupplemented or modified from time to time.<\/p>\n
“Basic Rent” shall mean Basic Rent as defined in Paragraph 6.<\/p>\n
“Basic Rent Payment Dates” shall mean the Basic Rent Payment
\nDates as defined in Paragraph 6.<\/p>\n
“Casualty” shall mean any loss of or damage to any property
\n(including the Leased Premises) included within or related to the Leased
\nPremises or arising from the Adjoining Property.<\/p>\n
“Commencement Date” shall mean Commencement Date as defined in
\nParagraph 5. <\/p>\n
“Condemnation” shall mean a Taking and\/or a Requisition.<\/p>\n
1<\/p>\n
“Condemnation Notice” shall mean notice or knowledge of the
\ninstitution of or intention to institute any proceeding for Condemnation.<\/p>\n
“Costs” of a Person or associated with a specified transaction
\nshall mean all reasonable costs and expenses incurred by such Person or
\nassociated with such transaction, including, without limitation, reasonable
\nattorneys’ fees and expenses, court costs, brokerage fees, escrow fees, title
\ninsurance premiums, mortgage commitment fees, mortgage points, recording fees
\nand transfer taxes, as the circumstances require.<\/p>\n
“CPI” shall mean CPI as defined in Exhibit “D” hereto.
\n ———– <\/p>\n
“Default Rate” shall mean the Default Rate as defined in
\nParagraph 7(a)(iv).<\/p>\n
“Easement Agreement” shall mean any conditions, covenants,
\nrestrictions, easements, declarations, licenses and other agreements, including
\nany site access agreements, listed as Permitted Encumbrances or as may hereafter
\naffect the Leased Premises.<\/p>\n
“Environmental Law” shall mean (i) whenever enacted or
\npromulgated, any applicable federal, state, and local law, statute, ordinance,
\nrule, regulation, license, permit, authorization, approval, consent, court
\norder, judgment, decree, injunction, code, requirement or agreement with any
\ngovernmental entity, (x) relating to pollution (or the cleanup thereof), or the
\nprotection of air, water vapor, surface water, groundwater, drinking water
\nsupply, land (including land surface or subsurface), plant, aquatic and animal
\nlife from injury caused by a Hazardous Substance or (y) concerning exposure to,
\nor the use, containment, storage, recycling, reclamation, reuse, treatment,
\ngeneration, discharge, transportation, processing, handling, labeling,
\nproduction, disposal or remediation of Hazardous Substances, Hazardous
\nConditions or Hazardous Activities, in each case as amended and as now or
\nhereafter in effect, and (ii) any common law or equitable doctrine (including,
\nwithout limitation, injunctive relief and tort doctrines such as negligence,
\nnuisance, trespass and strict liability) that may impose liability or
\nobligations or injuries or damages due to or threatened as a result of the
\npresence of, exposure to, or ingestion of, any Hazardous Substance. The term
\nEnvironmental Law includes, without limitation, the federal Comprehensive
\nEnvironmental Response Compensation and Liability Act of 1980, the Superfund
\nAmendments and Reauthorization Act, the federal Water Pollution Control Act, the
\nfederal Clean Air Act, the federal Clean Water Act, the federal Resources
\nConservation and Recovery Act of 1976 (including the Hazardous and Solid Waste
\nAmendments to RCRA), the federal Solid Waste Disposal Act, the federal Toxic
\nSubstance Control Act, the federal Insecticide, Fungicide and Rodenticide Act,
\nthe federal Occupational Safety and Health Act of 1970, the federal National
\nEnvironmental Policy Act and the federal Hazardous Materials Transportation Act,
\neach as amended and as now or hereafter in effect and any similar state or local
\nLaw.<\/p>\n
“Environmental Violation” shall mean (a) any direct or indirect
\ndischarge, disposal, spillage, emission, escape, pumping, pouring, injection,
\nleaching, release, seepage, filtration or transporting of any Hazardous
\nSubstance at, upon, under, onto or within the Leased Premises, or from the
\nLeased Premises to the environment, in violation of any Environmental Law which
\nresults, directly or indirectly, in any liability to Landlord, Tenant or Lender,
\nany Federal, state or local government or any other Person for the costs of any
\nremoval or remedial action or natural resources damage or for bodily injury or
\nproperty damage, (b) any transport to or from or deposit, storage, dumping,
\nplacement or use of any Hazardous Substance at, upon, under or within the Leased
\nPremises or which extends to any Adjoining Property in violation of any
\nEnvironmental Law which results in any liability to any Federal, state or local
\ngovernment or to any other Person for the costs of any removal or remedial
\naction or natural resources damage or for bodily injury or property damage, (c)
\nthe abandonment or discarding of any barrels, <\/p>\n
2<\/p>\n
containers or other receptacles containing any Hazardous Substances in violation
\nof any Environmental Laws, (d) any environmental activity, occurrence or
\ncondition at, on, under or from the Leased Premises which results in any
\nliability, cost or expense to Landlord or Lender or any other owner or occupier
\nof the Leased Premises, or which results in a creation of a lien on the Leased
\nPremises under any Environmental Law, or (e) any violation of or noncompliance
\nwith any Environmental Law.<\/p>\n
“Equipment” shall mean the Equipment as defined in Paragraph 1.<\/p>\n
“Event of Default” shall mean an Event of Default as defined in
\nParagraph 22(a).<\/p>\n
“Excess Land” shall mean that portion of the Land described in
\nExhibit “A-2”.
\n————- <\/p>\n
“Federal Funds” shall mean federal or other immediately available
\nfunds which at the time of payment are legal tender for the payment of public
\nand private debts in the United States of America.<\/p>\n
“Hazardous Activity” means any activity, process, procedure or
\nundertaking which directly or indirectly (i) procures, generates or creates any
\nHazardous Substance; (ii) causes or results in (or threatens to cause or result
\nin) the release, seepage, spill, leak, flow, discharge or emission of any
\nHazardous Substance into the environment (including the air, ground water,
\nwatercourses or water systems), (iii) involves the containment or storage of any
\nHazardous Substance; or (iv) would cause the Leased Premises or any portion
\nthereof to become a hazardous waste treatment, recycling, reclamation,
\nprocessing, storage or disposal facility within the meaning of any Environmental
\nLaw.<\/p>\n
“Hazardous Condition” means any condition which would support any
\nclaim or liability under any Environmental Law, including the presence of
\nunderground storage tanks.<\/p>\n
“Hazardous Substance” means (i) any substance, material, product,
\npetroleum, petroleum product, derivative, compound or mixture, mineral
\n(including asbestos), chemical, gas, medical waste, or other pollutant, in each
\ncase whether naturally occurring, man-made or the by-product of any process,
\nthat is toxic, harmful or hazardous or acutely hazardous to the environment or
\npublic health or safety or (ii) any substance supporting a claim under any
\nEnvironmental Law, whether or not defined as hazardous as such under any
\nEnvironmental Law. Hazardous Substances include, without limitation, any toxic
\nor hazardous waste, pollutant, contaminant, industrial waste, petroleum or
\npetroleum-derived substances or waste, radon, radioactive materials, asbestos,
\nasbestos containing materials, urea formaldehyde foam insulation, lead and
\npolychlorinated biphenyls.<\/p>\n
“Impositions” shall mean the Impositions as defined in Paragraph
\n9(a).<\/p>\n
“Improvements” shall mean the Improvements as defined in
\nParagraph 1.<\/p>\n
“Indemnitee” shall mean an Indemnitee as defined in Paragraph 15.<\/p>\n
“Initial Lender” shall mean GMAC Commercial Mortgage Corporation,
\nits successors and assigns.<\/p>\n
“Initial Loan” shall mean the $68,250,000 loan from Initial
\nLender to Landlord.<\/p>\n
3<\/p>\n
“Insurance Requirements” shall mean the requirements of all
\ninsurance policies required to be maintained in accordance with this Lease.<\/p>\n
“Land” shall mean the Land as defined in Paragraph 1.<\/p>\n
“Law(s)” shall mean any constitution, statute, rule of law, code,
\nordinance, order, judgment, decree, injunction, rule, regulation, policy,
\nrequirement or administrative or judicial determination, even if unforeseen or
\nextraordinary, of every duly constituted governmental authority, court or
\nagency, now or hereafter enacted or in effect.<\/p>\n
“Lease” shall mean this Lease Agreement.<\/p>\n
“Lease Year” shall mean, with respect to the first Lease Year,
\nthe period commencing on the Commencement Date and ending at midnight on the
\nlast day of the twelfth (12th) consecutive calendar month following the month in
\nwhich the Commencement Date occurred, and each succeeding twelve (12) month
\nperiod during the Term.<\/p>\n
“Leased Premises” shall mean the Leased Premises as defined in
\nParagraph 1.<\/p>\n
“Legal Requirements” shall mean the requirements of all present
\nand future Laws (including but not limited to Environmental Laws and Laws
\nrelating to accessibility to, usability by, and discrimination against, disabled
\nindividuals) and all covenants, restrictions and conditions now or hereafter of
\nrecord which may be applicable to Tenant or to any of the Leased Premises, or to
\nthe use, manner of use, occupancy, possession, operation, maintenance,
\nalteration, repair or restoration of any of the Leased Premises, even if
\ncompliance therewith necessitates structural changes or improvements or results
\nin interference with the use or enjoyment of any of the Leased Premises.<\/p>\n
“Lender” shall mean (a) Initial Lender, its successors and
\nassigns, and (b) any person or entity (and their respective successors and
\nassigns) which may, after the date hereof, make a Loan to Landlord or is the
\nholder of any Note.<\/p>\n
“Loan” shall mean the Initial Loan and any other loan made by one
\nor more Lenders to Landlord, which loan is secured by a Mortgage and an
\nAssignment and evidenced by a Note.<\/p>\n
“Monetary Obligations” shall mean Rent and all other sums payable
\nor reimbursable by Tenant under this Lease to Landlord, to any third party on
\nbehalf of Landlord or to any Indemnitee.<\/p>\n
“Moody’s” shall mean Moody’s Investors Services, Inc.<\/p>\n
“Mortgage” shall mean any mortgage or deed of trust from Landlord
\nto a Lender which (a) encumbers any of the Leased Premises and (b) secures
\nLandlord’s obligation to repay a Loan, as the same may be amended, supplemented
\nor modified.<\/p>\n
“Net Award” shall mean (a) the entire award payable to Landlord
\nor Lender by reason of a Condemnation whether pursuant to a judgment or by
\nagreement or otherwise, or (b) the entire proceeds of any insurance required
\nunder clauses (i), (ii) (to the extent payable to Landlord or Lender), (iv), (v)
\n(to the extent of the Rent) or (vi) of Paragraph 16(a), as the case may be, less
\nany expenses incurred by Landlord and Lender in collecting such award or
\nproceeds.<\/p>\n
4<\/p>\n
“Note” shall mean any promissory note evidencing Landlord’s
\nobligation to repay a Loan, as the same may be amended, supplemented or
\nmodified.<\/p>\n
“Partial Condemnation” shall mean any Condemnation which does not
\nconstitute a Termination Event.<\/p>\n
“Permitted Encumbrances” shall mean those covenants,
\nrestrictions, reservations, liens, conditions and easements and other
\nencumbrances, other than any Mortgage or Assignment, listed on Exhibit “C”
\n ———–
\nhereto (but such listing shall not be deemed to revive any such encumbrances
\nthat have expired or terminated or are otherwise invalid or unenforceable).<\/p>\n
“Person” shall mean an individual, partnership, association,
\ncorporation or other entity.<\/p>\n
“Prepayment Premium” shall mean any payment (other than a payment
\nof principal and\/or interest which Landlord is required to make under a Note or
\na Mortgage) by reason of any prepayment by Landlord of any principal due under a
\nNote or Mortgage, and which may be (in lieu of such prepayment premium or
\nprepayment penalty) a “make whole” or yield maintenance clause requiring a
\nprepayment premium or a defeasance premium (such defeasance premium to be an
\namount equal to the positive difference between (a) the total amount required to
\ndefease a Loan and (b) the outstanding principal balance of the Loan as of the
\ndate of such defeasance, in either case in an amount sufficient to compensate
\nthe Lender for the loss of the benefit of the Loan due to a prepayment.<\/p>\n
“Prime Rate” shall mean the annual interest rate as published,
\nfrom time to time, in The Wall Street Journal as the “Prime Rate” in its column
\n ———————–
\nentitled “Money Rate”. The Prime Rate may not be the lowest rate of interest
\ncharged by any “large U.S. money center commercial banks” and Landlord makes no
\nrepresentations or warranties to that effect. In the event The Wall Street
\n — ———–
\nJournal ceases publication or ceases to publish the “Prime Rate” as described
\n——-
\nabove, the Prime Rate shall be the average per annum discount rate (the<\/p>\n
“Discount Rate”) on ninety-one (91) day bills (“Treasury Bills”) issued from
\n————– ————–
\ntime to time by the United States Treasury at its most recent auction, plus
\nthree hundred (300) basis points. If no such 91-day Treasury Bills are then
\nbeing issued, the Discount Rate shall be the discount rate on Treasury Bills
\nthen being issued for the period of time closest to ninety-one (91) days.<\/p>\n
“Renewal Period” shall mean Renewal Period as defined in
\nParagraph 5.<\/p>\n
“Rent” shall mean, collectively, Basic Rent and Additional Rent.<\/p>\n
“Requisition” shall mean any temporary requisition or
\nconfiscation of the use or occupancy of any of the Leased Premises by any
\ngovernmental authority, civil or military, whether pursuant to an agreement with
\nsuch governmental authority in settlement of or under threat of any such
\nrequisition or confiscation, or otherwise.<\/p>\n
“S&P” shall mean Standard & Poors Corporation.<\/p>\n
“Site Assessment” shall mean a Site Assessment as defined in
\nParagraph 10(c).<\/p>\n
“State” shall mean the State of California.<\/p>\n
“Surviving Obligations” shall mean any obligations of Tenant
\nunder this Lease, actual or contingent, which arise on or prior to the
\nexpiration or prior termination of this Lease or which survive such expiration
\nor termination by their own terms.<\/p>\n
5<\/p>\n
“Taking” shall mean (a) any taking or damaging of all or a
\nportion of any of the Leased Premises (i) in or by condemnation or other eminent
\ndomain proceedings pursuant to any Law, general or special, or (ii) by reason of
\nany agreement with any condemnor in settlement of or under threat of any such
\ncondemnation or other eminent domain proceeding, or (iii) by any other means, or
\n(b) any de facto condemnation. The Taking shall be considered to have taken
\nplace as of the later of the date actual physical possession is taken by the
\ncondemnor, or the date on which the right to compensation and damages accrues
\nunder the law applicable to the Leased Premises.<\/p>\n
“Term” shall mean the Term as defined in Paragraph 5.<\/p>\n
“Termination Amount” shall mean the amount specified in Exhibit
\n“G” for the applicable Lease Year.<\/p>\n
“Termination Date” shall mean Termination Date as defined in
\nParagraph 18.<\/p>\n
“Termination Event” shall mean a Termination Event as defined in
\nParagraph 18.<\/p>\n
“Termination Notice” shall mean Termination Notice as defined in
\nParagraph 18(a).<\/p>\n
“Third Party Purchaser” shall mean Third Party Purchaser as
\ndefined in Paragraph 21(g).<\/p>\n
3. Title and Condition.
\n ——————- <\/p>\n
(a) The Leased Premises are demised and let subject to (i) the
\nMortgage and Assignment presently in effect, (ii) the rights of any Persons in
\npossession of the Leased Premises, (iii) the existing state of title of any of
\nthe Leased Premises, including any Permitted Encumbrances, (iv) any state of
\nfacts which an accurate survey or physical inspection of the Leased Premises
\nmight show, (v) all Legal Requirements, including any existing violation of any
\nthereof, and (vi) the condition of the Leased Premises as of the commencement of
\nthe Term, without representation or warranty by Landlord.<\/p>\n
(b) Tenant acknowledges that the Leased Premises is in good
\ncondition and repair at the inception of this Lease. LANDLORD LEASES AND WILL
\nLEASE AND TENANT TAKES AND WILL TAKE THE LEASED PREMISES AS IS. TENANT
\n —–
\nACKNOWLEDGES THAT LANDLORD (WHETHER ACTING AS LANDLORD HEREUNDER OR IN ANY OTHER
\nCAPACITY) HAS NOT MADE AND WILL NOT MAKE, NOR SHALL LANDLORD BE DEEMED TO HAVE
\nMADE, ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF
\nTHE LEASED PREMISES, INCLUDING ANY WARRANTY OR REPRESENTATION AS TO (i) ITS
\nFITNESS, DESIGN OR CONDITION FOR ANY PARTICULAR USE OR PURPOSE, (ii) THE QUALITY
\nOF THE MATERIAL OR WORKMANSHIP THEREIN, (iii) THE EXISTENCE OF ANY DEFECT,
\nLATENT OR PATENT, (iv) LANDLORD’S TITLE THERETO, (v) VALUE, (vi) COMPLIANCE WITH
\nSPECIFICATIONS, (vii) LOCATION, (viii) USE, (ix) CONDITION, (x) MERCHANTABILITY,
\n(xi) QUALITY, (xii) DESCRIPTION, (xiii) DURABILITY, (xiv) OPERATION, (xv) THE
\nEXISTENCE OF ANY HAZARDOUS SUBSTANCE, HAZARDOUS CONDITION OR HAZARDOUS ACTIVITY
\nOR (xvi) COMPLIANCE OF THE LEASED PREMISES WITH ANY LAW OR LEGAL REQUIREMENT;
\nAND ALL RISKS INCIDENT THERETO ARE TO BE BORNE BY TENANT. TENANT ACKNOWLEDGES
\nTHAT THE LEASED PREMISES IS OF ITS<\/p>\n
6<\/p>\n
SELECTION AND TO ITS SPECIFICATIONS AND THAT THE LEASED PREMISES HAS BEEN
\nINSPECTED BY TENANT AND IS SATISFACTORY TO IT. IN THE EVENT OF ANY DEFECT OR
\nDEFICIENCY IN ANY OF THE LEASED PREMISES OF ANY NATURE, WHETHER LATENT OR
\nPATENT, LANDLORD SHALL NOT HAVE ANY RESPONSIBILITY OR LIABILITY WITH RESPECT
\nTHERETO OR FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING STRICT
\nLIABILITY IN TORT). THE PROVISIONS OF THIS PARAGRAPH 3(b) HAVE BEEN NEGOTIATED,
\nAND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY WARRANTIES BY
\nLANDLORD, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE LEASED PREMISES,
\nARISING PURSUANT TO THE UNIFORM COMMERCIAL CODE OR ANY OTHER LAW NOW OR
\nHEREAFTER IN EFFECT OR ARISING OTHERWISE.<\/p>\n
(c) Tenant represents to Landlord that Tenant has examined the
\ntitle to the Leased Premises prior to the execution and delivery of this Lease
\nand has found the same to be satisfactory for the purposes contemplated hereby.
\nTenant acknowledges that (i) fee simple insurable title (both legal and
\nequitable) is in Landlord and that Tenant has only the leasehold right of
\npossession and use of the Leased Premises as provided herein, (ii) to the
\nknowledge of Tenant, the Improvements conform to all material Legal Requirements
\nand all Insurance Requirements, (iii) to the knowledge of Tenant, all easements
\nnecessary or appropriate for the use or operation of the Leased Premises have
\nbeen obtained, (iv) all contractors and subcontractors who have performed work
\non or supplied materials to the Leased Premises have been or will have been
\nfully paid, and all materials and supplies have been or will have been fully
\npaid for, and no dispute currently exists with respect to any such contractor,
\nsubcontractor or materials and supplies, (v) the Improvements have been fully
\ncompleted in all material respects in a workmanlike manner of first class
\nquality, and (vi) all Equipment necessary or appropriate for the use or
\noperation of the Leased Premises has been installed and is presently fully
\noperative in all material respects.<\/p>\n
(d) Landlord hereby assigns to Tenant, without recourse or
\nwarranty whatsoever, all assignable warranties, guaranties, indemnities and
\nsimilar rights (collectively, “Warranties”) which Landlord may have against any
\n ———-
\nmanufacturer, seller, engineer, contractor or builder in respect of any of the
\nLeased Premises. Such assignment shall remain in effect until an Event of
\nDefault occurs or until the expiration or earlier termination of this Lease,
\nwhereupon such assignment shall cease and all such Warranties shall
\nautomatically revert to Landlord. Tenant shall enforce the Warranties in
\naccordance with their respective terms. Landlord agrees, at Tenant’s expense, to
\ncooperate with Tenant and take all other action necessary as specifically
\nrequested by Tenant to enable Tenant to enforce all of Tenant’s rights under any
\nof the Warranties, such rights of enforcement to be exclusive to Tenant, and
\nLandlord will not, during the Term, amend, modify or waive, or take any action
\nunder, any of the Warranties without Tenant’s prior written consent.<\/p>\n
4. Use of Leased Premises; Quiet Enjoyment.
\n ————————————— <\/p>\n
(a) Tenant may occupy and use the Leased Premises for office
\nand administrative functions, including those functions typically occurring in
\nTenant’s headquarters complex, and uses incidental thereto, including, without
\nlimitation, auditoriums, conference facilities, classrooms, computer and data
\ncenters, engineering labs, product showrooms and sales centers, technical
\nsupport centers, employee cafeterias and dining facilities, fitness facilities
\nand similar amenities, and for no other purpose. Tenant shall not use or occupy
\nor permit any of the Leased Premises to be used or occupied, nor do or permit
\nanything to be done in or on any of the Leased Premises, in a manner which would
\nor might (i) violate any Law or Legal Requirement applicable to the Leased
\nPremises or occupancy thereof, (ii) make void or voidable or cause any insurer
\nto cancel any insurance required by this Lease, or make it impossible to obtain
\nany such<\/p>\n
7<\/p>\n
insurance at commercially reasonable rates, (iii) cause structural injury to any
\nof the Improvements or (iv) constitute a public or private nuisance or waste.<\/p>\n
(b) Subject to the provisions hereof, so long as no Event of
\nDefault has occurred and is continuing, Tenant shall quietly hold, occupy and
\nenjoy the Leased Premises throughout the Term, without any hindrance, ejection
\nor molestation by Landlord with respect to matters that arise after the date
\nhereof; provided that Landlord, Lender or their respective agents may enter upon
\nand examine any of the Leased Premises at such reasonable times as Landlord or
\nLender may select and upon reasonable notice to Tenant (except in the case of an
\nemergency, in which no notice shall be required) for the purpose of inspecting
\nthe Leased Premises, verifying compliance or non-compliance by Tenant with its
\nobligations hereunder and the existence or non-existence of an Event of Default
\nor event which with the passage of time and\/or notice would constitute an Event
\nof Default, showing the Leased Premises to prospective Lenders and purchasers
\nand taking such other action with respect to the Leased Premises as is permitted
\nby any provision hereof, and any such entry by Landlord or Lender or their
\nagents onto the Leased Premises shall be subject to Tenant’s security
\nrequirements and restrictions, and, if required by Tenant, a representative of
\nTenant shall accompany Landlord during any such entry onto the Leased Premises.<\/p>\n
(c) Tenant may from time to time own or hold under lease or
\nlicense from Persons other than Landlord furniture, equipment, trade fixtures
\nand personal property located on or about the Leased Premises, which shall not
\nbe subject to this Lease. Landlord shall from time to time, promptly upon
\nTenant’s request, execute such instruments or agreements as Tenant or any
\nequipment lessor, supplier, vendor, lender or creditor may reasonably require
\nacknowledging that Landlord does not own or have any other right or interest in
\nor to such furniture, equipment, trade fixtures or personal property, and
\nLandlord hereby waives any right, title, lien or interest therein.<\/p>\n
5. Term.
\n —- <\/p>\n
(a) Subject to the provisions hereof, Tenant shall have and
\nhold the Leased Premises for an initial term (as extended or renewed in
\naccordance with the provisions hereof, being called the “Term”) commencing on
\n —–
\nthe date hereof (the “Commencement Date”) and ending on the last day of the two
\n ——————
\nhundred fortieth (240th) calendar month next following the date hereof (the
\n“Expiration Date”).
\n—————- <\/p>\n
(b) Provided that if, on or prior to the Expiration Date or any
\nother Renewal Date (as hereinafter defined) this Lease shall not have been
\nterminated pursuant to any provision hereof, then on the Expiration Date and on
\nthe tenth (10th) anniversary of the Expiration Date (the Expiration Date and
\nsuch anniversary being a “Renewal Date”), the Term shall be deemed to have
\n ————
\nbeen automatically extended for an additional period of ten (10) years (each
\nsuch period a “Renewal Period”), unless Tenant shall notify Landlord
\n ————–
\nin writing in recordable form at least eighteen (18) months prior to such
\nupcoming Renewal Date that Tenant is terminating this Lease as of such upcoming
\nRenewal Date. Any such extension of the Term shall be subject to all of the
\nprovisions of this Lease, as the same may be amended, supplemented or modified.
\nIf a Casualty occurs within the period that is between eighteen (18) and twelve
\n(12) months prior to the expiration of the then current Term, the Leased
\nPremises cannot be restored by the expiration of the then current Term and
\nTenant has elected not to extend the Term pursuant to Paragraph 5(b) for a
\nRenewal Period then, within the thirty (30) day period following the Casualty,
\nTenant shall have the option by written notice to Landlord to further extend the
\nTerm for such Renewal Period. Any such additional extension shall be subject to
\nthe terms of this Lease, as the same may be amended.<\/p>\n
8<\/p>\n
(c) If Tenant exercises its option not to extend or further
\nextend the Term, or if an Event of Default occurs, then Landlord shall have the
\nright during the remainder of the Term then in effect and, in any event,
\nLandlord shall have the right during the last year of the Term, to (i) advertise
\nthe availability of the Leased Premises for sale or reletting and to erect upon
\nthe Leased Premises signs indicating such availability and (ii) show the Leased
\nPremises to prospective purchasers or tenants or their agents at such reasonable
\ntimes as Landlord may select (and subject to the security provisions of Tenant
\nas provided for in Paragraph 4(b)).<\/p>\n
6. Basic Rent. Tenant shall pay to Landlord, as basic rent for the
\n ———-
\nLeased Premises during the Term, the amounts determined in accordance with
\nExhibit “D” hereto (“Basic Rent”), commencing on the first day of the first
\n———– ———-
\nmonth following the date hereof and continuing on the same day of each month
\nthereafter during the Term (each such day being a “Basic Rent Payment Date”).
\n ———————–
\nEach such rental payment shall be made during the term of the Initial Loan by
\nwire transfer of Federal Funds to the following account: First Union National
\nBank, Philadelphia, PA; ABA: 031-2014-67; Account Name: GMAC Commercial Mortgage
\nClearing House; Account No. 21000125-3771-5; Reference: GMACCM Loan # 18931 –
\nOne AMD Place; Attn: Customer Service or such other address as Initial Lender,
\nin its sole discretion shall direct (with notice of each such payment to
\nLandlord concurrent with the making thereof). After payment of the Initial Loan
\nin full, each such rental payment shall be made at Landlord’s sole discretion,
\n(a) to Landlord at its address set forth above and\/or to not more than one
\nPerson in addition to Landlord, at such address and in such proportions as
\nLandlord may direct by thirty (30) days’ prior written notice to Tenant (in
\nwhich event Tenant shall give Landlord notice of each such payment concurrent
\nwith the making thereof), or (b) by wire transfer of Federal Funds to such
\naccount(s) as Landlord may direct by thirty (30) days’ prior notice to Tenant.
\nPro rata Basic Rent for the period from the date hereof through the last day of
\nthe month hereof shall be paid on the date hereof.<\/p>\n
7. Additional Rent.
\n ————— <\/p>\n
(a) Tenant shall pay and discharge, as additional rent
\n(collectively, “Additional Rent”):
\n —————- <\/p>\n
(i) except as otherwise specifically provided herein,
\nall costs and expenses of Tenant, Landlord and any other Persons specifically
\nreferenced herein which are incurred in connection or associated with (A) the
\nownership, use, non-use, occupancy, possession, operation, condition, design,
\nconstruction, maintenance, alteration, repair or restoration of any of the
\nLeased Premises, (B) the performance of any of Tenant’s obligations under this
\nLease, (C) any sale or other transfer of any of the Leased Premises to Tenant
\nunder this Lease, (D) any Condemnation proceedings, (E) the adjustment,
\nsettlement or compromise of any insurance claims involving or arising from any
\nof the Leased Premises, (F) the prosecution, defense or settlement of any
\nlitigation involving or arising from any of the Leased Premises, this Lease, or
\nthe sale of the Leased Premises to Landlord, (G) the exercise or enforcement by
\nLandlord, its successors and assigns, of any of its rights under this Lease, (H)
\nany amendment to or modification or termination of this Lease made at the
\nrequest of Tenant, (I) Costs of Landlord’s counsel and reasonable internal Costs
\nof Landlord incurred in connection with any act undertaken by Landlord (or its
\ncounsel) at the request of Tenant, or incurred in connection with any act of
\nLandlord performed on behalf of Tenant, (J) the reasonable internal Costs of
\nLandlord incurred in connection with Tenant’s failure to act promptly in an
\nemergency situation, and (K) any other items specifically required to be paid by
\nTenant under this Lease;<\/p>\n
(ii) after the date all or any portion of any
\ninstallment of Basic Rent is due and not paid, an amount equal to two percent
\n(2%) of the amount of such unpaid installment or portion thereof (“Late
\n —-
\nCharge”), provided, however, that with respect to the first two late payments of
\n——
\nall or any portion of any installment of Basic Rent in any consecutive<\/p>\n
9<\/p>\n
twelve (12) month period, the Late Charge shall not be due and payable unless
\nthe Basic Rent has not been paid within five (5) days following the due date
\nthereof;<\/p>\n
(iii) a sum equal to any additional sums that are payable
\nby Landlord to a Lender under a Note by reason of Tenant’s late payment or non-
\npayment of Basic Rent or by reason of an Event of Default (including any late
\ncharge, default penalties, interest and fees of Lender’s counsel), (A) which are
\npayable under the documents evidencing and securing the Initial Loan and (B)
\nwhich are payable under the documents evidencing and securing any subsequent
\nLoan (after payment in full of the Initial Loan), to the extent typically
\ncharged by a lender; <\/p>\n
(iv) interest at the rate (the “Default Rate”) of two
\n ————
\npercent (2%) over the Prime Rate per annum on the following sums until paid in
\nfull: (A) all overdue installments of Basic Rent from the respective due dates
\nthereof, (B) all overdue amounts of Additional Rent relating to obligations
\nwhich Landlord shall have paid on behalf of Tenant, from the date of payment
\nthereof by Landlord, and (C) all other overdue amounts of Additional Rent that
\nare payable to Landlord, from the date when any such amount becomes overdue;<\/p>\n
(v) typical and customary charges of a lender in the
\nadministration and servicing of a Loan and oversight of Lender’s collateral
\n(e.g., escrow costs, property inspections, lockbox fees, trustee fees, tax
\nservice costs, fees and expenses related to the resale of the Initial Loan by
\nInitial Lender, appraisal costs); and<\/p>\n
(vi) costs required to maintain an independent director
\nfor the managing member of Landlord.<\/p>\n
(b) Tenant shall pay and discharge (i) any Additional Rent
\nreferred to in Paragraph 7(a)(i) when the same shall become due, provided that
\namounts which are billed to Landlord or any third party, but not to Tenant,
\nshall be paid within thirty (30) days after Landlord’s demand for payment
\nthereof or, if later, when the same are due, and (ii) any other Additional Rent,
\nwithin thirty (30) days after Landlord’s demand for payment thereof.<\/p>\n
(c) In no event shall amounts payable under Paragraph 7(a)(ii),
\n(iii) and (iv) exceed the maximum amount permitted by applicable Law. Further,
\nin no event shall Tenant be required to pay to Landlord any item of Additional
\nRent that Tenant is obligated to pay to any third party pursuant to any
\nprovision of this Lease.<\/p>\n
(d) Tenant shall have no obligation to pay for costs arising as
\na result of Landlord’s actions or decisions as long as such actions or decisions
\ndo not arise as a result of Tenant’s failure to perform its obligations under
\nthis Lease (e.g., defeasance or assumption charges or costs in connection with
\nloan modifications requested by Landlord), costs associated with Landlord’s
\nrequired reporting to Lender (e.g., financial statements), costs of refinancing
\nany Loan (e.g., commitment fees, loan fees, due diligence and transaction costs)
\nor costs arising as a consequence of a dispute between Landlord and Lender or a
\ndefault by Landlord under any Loan not, in either event, caused by a
\ncorresponding default by Tenant under this Lease.<\/p>\n
8. Net Lease; Non-Terminability.
\n —————————- <\/p>\n
(a) This is a net lease and all Monetary Obligations shall be
\npaid without notice or demand (except as otherwise provided herein) and without
\nset-off, counterclaim, recoupment, abatement, suspension, deferment, diminution,
\ndeduction, reduction or defense (collectively, a “Set-Off”).
\n ——- <\/p>\n
10<\/p>\n
(b) Except as otherwise expressly provided herein, this Lease
\nand the rights of Landlord and the obligations of Tenant hereunder shall not be
\naffected by any event or for any reason, including the following: (i) any damage
\nto or theft, loss or destruction of any of the Leased Premises, (ii) any
\nCondemnation, (iii) any default on the part of Landlord hereunder or under any
\nNote, Mortgage, Assignment or any other agreement, (iv) any latent or other
\ndefect in any of the Leased Premises, (v) the breach of any warranty of any
\nseller or manufacturer of any of the Equipment, (vi) any violation of any
\nprovision of this Lease by Landlord, (vii) the bankruptcy, insolvency,
\nreorganization, composition, readjustment, liquidation, dissolution or winding-
\nup of, or other proceeding affecting, Landlord, (viii) the exercise of any
\nremedy, including foreclosure, under any Mortgage or Assignment, (ix) any action
\nwith respect to this Lease (including the disaffirmance hereof) which may be
\ntaken by Landlord, any trustee, receiver or liquidator of Landlord or any court
\nunder the Federal Bankruptcy Code or otherwise, (x) any interference with
\nTenant’s use of the Leased Premises, (xi) market or economic changes or (xii)
\nany other cause, whether similar or dissimilar to the foregoing, any present or
\nfuture Law to the contrary notwithstanding; provided, however that the foregoing
\nis not intended to release Landlord of liability in the event of any breach or
\ndefault by Landlord under this Lease.<\/p>\n
(c) The obligations of Tenant hereunder shall be separate and
\nindependent covenants and agreements, all Monetary Obligations shall continue to
\nbe payable in all events (or, in lieu thereof, Tenant shall pay amounts equal
\nthereto), and the obligations of Tenant hereunder shall continue unaffected
\nunless the requirement to pay or perform the same shall have been terminated
\npursuant to an express provision of this Lease. All Rent payable by Tenant
\nhereunder shall constitute “rent” for all purposes (including Section 502(b)(6)
\nof the Federal Bankruptcy Code).<\/p>\n
(d) Except as otherwise expressly provided herein, Tenant shall
\nhave no right and hereby waives all rights which it may have under any Law (i)
\nto quit, terminate or surrender this Lease or any of the Leased Premises, or
\n(ii) to any Set-Off of any Monetary Obligations.<\/p>\n
9. Payment of Impositions.
\n ———————- <\/p>\n
(a) Tenant shall, before interest or penalties are due thereon,
\npay and discharge all taxes (including real and personal property, franchise,
\nsales and rent taxes), all charges for any easement or agreement maintained for
\nthe benefit of any of the Leased Premises, all assessments and levies, all
\npermit, inspection and license fees, all rents and charges for water, sewer,
\nutility and communication services relating to any of the Leased Premises, and
\nall other public charges whether of a like or different nature, even if
\nunforeseen or extraordinary, which arise during the Term and are imposed upon or
\nassessed against (i) Tenant, (ii) Tenant’s leasehold interest in the Leased
\nPremises, (iii) any of the Leased Premises, (iv) Landlord as a result of or
\narising in respect of the acquisition, ownership, occupancy, leasing, use or
\npossession of any of the Leased Premises, any activity conducted on any of the
\nLeased Premises, or the Rent, or (v) any Lender by reason of any Note, Mortgage,
\nAssignment or other document evidencing or securing a Loan and which (as to this
\nclause (v)) a borrower would customarily agree to pay (collectively, the
\n“Impositions”); provided, that nothing herein shall obligate Tenant to pay
\n ————
\n(A) income, excess profits or other taxes of Landlord (or Lender) which are
\ndetermined on the basis of Landlord’s (or Lender’s) net income or net worth
\n(unless such taxes are in lieu of or a substitute for any other tax, assessment
\nor other charge upon or with respect to the Leased Premises which, if it were in
\neffect, would be payable by Tenant under the provisions hereof or by the terms
\nof such tax, assessment or other charge), (B) any estate, inheritance,
\nsuccession, gift or similar tax imposed on Landlord or (C) any capital gains,
\ntransfer or deed tax imposed on Landlord in connection with the sale, exchange
\nor other disposition of the Leased Premises to any Person, except that Tenant
\nshall be responsible to pay any increase in real estate taxes and assessments
\nthat are imposed as a result of a change of ownership of the Leased Premises<\/p>\n
11<\/p>\n
occurring after the tenth (10th) Lease Year, but not with respect to any change
\nof ownership occurring prior thereto. If any Imposition may be paid in
\ninstallments without interest or penalty, Tenant shall have the option to pay
\nsuch Imposition in installments; in such event, Tenant shall be liable only for
\nthose installments which accrue or become due and payable during the Term.
\nTenant shall prepare and file all tax reports required by governmental
\nauthorities which relate to the Impositions. Tenant shall deliver to Landlord
\n(1) copies of all settlements and notices pertaining to the Impositions which
\nmay be issued by any governmental authority within twenty (20) days after
\nTenant’s receipt thereof, (2) satisfactory evidence (which may be written notice
\nfrom a tax service acceptable to Landlord and Lender) of payment of all taxes
\nrequired to be paid by Tenant hereunder no later than thirty (30) days following
\nthe date the same would become delinquent, showing the same to have been paid
\nprior to delinquency and (3) receipts for payment of all other Impositions
\npromptly following Landlord’s request therefor.<\/p>\n
(b) Landlord shall have the right, (i) following the occurrence
\nof an Event of Default with respect to Escrow Charges described in clause (A) of
\nthe following sentence and (ii) if Landlord or Lender determines that the Leased
\nPremises are not being maintained in accordance with current standards for
\nsimilarly situated office buildings prudently managed so that the condition of
\nthe Leased Premises is not as required by Paragraph 12 (a) hereof, to require
\nTenant to pay to Landlord, or to Lender if directed by Landlord, an additional
\nmonthly sum (each an “Escrow Payment”) sufficient to pay the Escrow Charges (as
\n ————–
\nhereinafter defined) as they become due. As used herein, “Escrow Charges” shall
\n ————–
\nmean (A) real estate taxes on the Leased Premises or payments in lieu thereof
\nand premiums on any insurance required by this Lease, and (B) amounts required
\nby a Lender on the basis of an inspection of the Leased Premises or as otherwise
\nreasonably determined by Lender which shall be deposited in a reserve or
\nreserves such as a capital improvement reserve, a replacement reserve and\/or a
\nrepair reserve (such amounts in this clause (B) collectively referred to as
\n“Reserve Funds”). Landlord shall determine the amount of the Escrow Charges and
\nof each Escrow Payment. As long as the Escrow Payments are being held by
\nLandlord the Escrow Payments shall not be commingled with other funds of
\nLandlord or other Persons and interest thereon shall accrue for the benefit of
\nTenant from the date such monies are received and invested until the date such
\nmonies are disbursed to pay Escrow Charges. If the Escrow Payments are held by
\nthe Lender, they shall be held and administered in accordance with Lender’s
\ncustomary procedures for similar accounts. Landlord shall apply the Escrow
\nPayments to the payment of the Escrow Charges in such order or priority as
\nLandlord shall determine or as required by law; provided, however, that any
\nReserve Funds shall only be used for improvements or repairs for which such
\nReserve Funds have been deposited, and any remaining balance of any such Reserve
\nFunds shall be disbursed to Tenant at such time as such improvements or repairs
\nhave been completed so long as no Event of Default then exists. If at any time
\nthe Escrow Payments theretofore paid to Landlord shall be insufficient for the
\npayment of the Escrow Charges, Tenant, within fifteen (15) days after Landlord’s
\ndemand therefor, shall pay the amount of the deficiency to Landlord.<\/p>\n
10. Compliance with Laws and Easement Agreements; Environmental
\n ———————————————————–
\n Matters.
\n ——– <\/p>\n
(a) Tenant shall, at its expense, comply with and conform to,
\nand cause the Leased Premises and any other Person occupying any part of the
\nLeased Premises to comply with and conform to, all Insurance Requirements and
\nLegal Requirements (including all applicable Environmental Laws). Tenant shall
\nnot at any time (i) cause, permit or suffer to occur any Environmental
\nViolation. or (ii) permit any sublessee, assignee or other Person occupying the
\nLeased Premises under or through Tenant to cause, permit or suffer to occur any
\nEnvironmental Violation and, at the request of Landlord or Lender, Tenant shall
\npromptly remediate or undertake any other appropriate response action to correct
\nany existing Environmental Violation. Tenant shall permit Persons who are
\npotentially responsible (any such Person, a “PRP”) for existing Environmental
\n —
\nViolations on upgradient properties and their agents <\/p>\n
12<\/p>\n
access to the Leased Premises for the purpose of conducting Site Assessments
\nupon and remediation to the Leased Premises . Tenant shall upon Landlord’s or
\nLender’s request provide Landlord and Lender with copies of all filings which
\nTenant is required to submit to governmental agencies and all permits, licenses
\nand certificates which Tenant is required to obtain from governmental agencies,
\nin both cases with respect to the Leased Premises. Tenant shall give prompt
\nnotice to Landlord and Lender of receipt by Tenant of any notice related to any
\nLegal Requirements and of the commencement of any proceedings or investigations
\nwhich relate to compliance with Legal Requirements. Any and all reports prepared
\nfor or by Landlord with respect to the Leased Premises shall be for the sole
\nbenefit of Landlord and Lender and no other Person shall have the right to rely
\non any such reports.<\/p>\n
(b) Tenant, at its sole cost and expense, will at all times
\npromptly and faithfully abide by, discharge and perform all of the covenants,
\nconditions and agreements contained in any Easement Agreement on the part of
\nLandlord or the occupier to be kept and performed thereunder and shall enter
\ninto access agreements for the purposes described in the foregoing Paragraph
\n10(a), such agreements to be subject to the reasonable approval of Landlord.
\nTenant will not alter, modify, amend or terminate any Easement Agreement, give
\nany consent or approval thereunder, or enter into any new Easement Agreement
\nwithout, in each case, the prior written consent of Landlord, which consent
\nshall not be unreasonably withheld (provided, however, that Landlord hereby
\nconsents to the Site Access Agreement dated March 21, 1997 between AMD
\nInternational Sales & Service, Ltd., and Advanced Micro Devices, Inc. and 999
\nArques Corporation and consents to the Site Access Agreement dated March 17,
\n1997 between AMD International Sales & Service, Ltd. and Advanced Micro Devices,
\nInc. and CAE Electronics Inc.). Landlord shall cooperate with Tenant with
\nrespect to the creation of easements and\/or rights of way for ingress and egress
\nto and from the Leased Premises or in favor of municipal or other governmental
\nauthorities or public service or utility companies for the installation of water
\nlines, sewers, electricity, telephone, gas, steam or easements for other
\nfacilities and utilities reasonably required for the use and occupancy of the
\nLeased Premises.<\/p>\n
(c) Upon prior written notice from Landlord, Tenant shall
\npermit such persons as Landlord may designate (who shall be a regional or
\nnational environmental audit firm designated by Lender and who shall be Eckland
\nConsulting or another firm reasonably acceptable to Tenant) (“Site Reviewers”)
\n ————–
\nto visit the Leased Premises and perform environmental site investigations,
\naudits and assessments (“Site Assessments”) on the Leased Premises for the
\n —————-
\npurpose of determining whether there exists on the Leased Premises any
\nEnvironmental Violation or any condition which could result in any Environmental
\nViolation. Such Site Assessments may include both above and below the ground
\ntesting for Environmental Violations and such other tests as may be necessary,
\nin the reasonable opinion of the Site Reviewers, to conduct the Site
\nAssessments; provided, however, that any such testing to be undertaken in
\nconnection with any Site Assessment shall be conducted in such a manner as to
\nminimize any interference with Tenant’s business operations at the Leased
\nPremises; and provided, further, that such Site Assessments shall not be
\nconducted more frequently than once every 24 months unless Landlord is required
\nto undertake a Site Assessment as a condition of obtaining financing or
\nrefinancing, or in connection with a sale of the Leased Premises or if required
\nby a Lender. In such cases, the Site Assessment may be conducted by Landlord at
\nany time. The Site Assessment shall be limited to a visual inspection and review
\nof records unless (i) Landlord or Lender has reasonable cause to believe that an
\nEnvironmental Violation exists at the Leased Premises; (ii) intrusive testing is
\nrequired to be undertaken as a condition of Landlord obtaining financing or
\nrefinancing or of a proposed sale of the Leased Premises or if required by a
\nLender; or (iii) such testing is conducted within nine (9) months of the
\nexpiration of the Lease Term, in which case such Site Assessment may include the
\ntesting described above. Tenant shall supply to the Site Reviewers such
\nhistorical and operational information regarding the Leased Premises as may be
\nreasonably requested by the Site Reviewers to facilitate the Site Assessments,
\nand shall make available for meetings with the Site Reviewers appropriate
\npersonnel having <\/p>\n
13<\/p>\n
knowledge of such matters. The reasonable cost of performing and reporting Site
\nAssessments shall be paid by Tenant, except that Tenant shall not be responsible
\nto pay the cost of performing and reporting Site Assessments required in
\nconnection with any sale of the Leased Premises.<\/p>\n
(d) If an Environmental Violation (other than ground water
\ncontamination which has migrated to the Leased Premises from off-site sources
\nunless Tenant is or has been required by a governmental authority to remediate
\nsuch contamination) occurs or is found to exist and, in Landlord’s reasonable
\njudgment, the cost of remediation of, or other response action with respect to,
\nthe same is likely to exceed $1,000,000 and at the time of such remediation
\nTenant does not have a publicly traded, unsecured senior debt rating of “Baa2”
\nor better from Moody’s or a rating of “BBB” or better from S&P, Tenant shall
\nprovide to Landlord, within thirty (30) days after Landlord’s request therefor,
\nadequate financial assurances that Tenant will effect such remediation in
\naccordance with applicable Environmental Laws. Such financial assurances shall
\nbe a bond or letter of credit reasonably satisfactory to Landlord in form and
\nsubstance and in an amount equal to or greater than Landlord’s reasonable
\nestimate, based upon a Site Assessment performed pursuant to Paragraph 10(c), of
\nthe anticipated cost of such remedial action.<\/p>\n
(e) Notwithstanding any other provision of this Lease, if an
\nEnvironmental Violation occurs (other than ground water contamination which has
\nmigrated to the Leased Premises from off-site sources unless Tenant is or has
\nbeen required by a governmental authority to remediate such contamination) or is
\nfound to exist and the Term would otherwise terminate or expire, then, at the
\noption of Landlord, the Term shall be automatically extended beyond the date of
\ntermination or expiration and this Lease shall remain in full force and effect
\nbeyond such date until the earlier to occur of (i) the completion of all
\nremedial action in accordance with applicable Environmental Laws or (ii) one (1)
\nyear from the date on which this Lease would otherwise terminate or expire so
\nlong as on or before such date Tenant deposits with Landlord an amount
\ndetermined by the Site Reviewer to be reasonably required to complete such
\nremediation.<\/p>\n
(f) If Tenant fails to correct any Environmental Violation
\nwhich occurs or is found to exist, Landlord shall have the right (but no
\nobligation) to take any and all actions as Landlord shall deem reasonably
\nnecessary or advisable in order to cure such Environmental Violation.<\/p>\n
(g) Tenant shall notify Landlord promptly after becoming aware
\nof any Environmental Violation (or alleged Environmental Violation) or
\nnoncompliance with any of the covenants contained in this Paragraph 10 and shall
\nforward to Landlord immediately upon receipt thereof copies of all orders,
\nreports, notices, permits, applications or other communications relating to any
\nsuch violation or noncompliance.<\/p>\n
(h) All future leases, subleases or concession agreements
\nrelating to the Leased Premises entered into by Tenant shall contain covenants
\nof the other party not to at any time (i) cause any Environmental Violation to
\noccur or (ii) permit any Person occupying the Leased Premises through said
\nsubtenant or concessionaire to cause any Environmental Violation to occur.<\/p>\n
11. Liens; Recording.
\n —————- <\/p>\n
(a) Tenant shall not, directly or indirectly whether by any act
\nor omission, create or permit to be created or to remain and shall promptly
\ndischarge or remove any lien, levy or encumbrance on any of the Leased Premises
\nor on any Rent or any other sums payable by Tenant under this Lease, other than
\nany Mortgage or Assignment, the Permitted Encumbrances and any mortgage, lien,
\nencumbrance or other charge created by or resulting from <\/p>\n
14<\/p>\n
any act or omission of Landlord. NOTICE IS HEREBY GIVEN THAT LANDLORD SHALL NOT
\nBE LIABLE FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE FURNISHED TO
\nTENANT OR TO ANYONE HOLDING OR OCCUPYING ANY OF THE LEASED PREMISES THROUGH OR
\nUNDER TENANT, AND THAT NO MECHANICS’ OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES
\nOR MATERIALS SHALL ATTACH TO OR AFFECT THE INTEREST OF LANDLORD IN AND TO ANY OF
\nTHE LEASED PREMISES. LANDLORD MAY AT ANY TIME, AND AT LANDLORD’S REQUEST TENANT
\nSHALL PROMPTLY, POST ANY NOTICES ON THE LEASED PREMISES REGARDING SUCH NON-
\nLIABILITY OF LANDLORD.<\/p>\n
(b) Landlord and Tenant shall execute, acknowledge, deliver and
\nrecord, file or register (collectively, “record”) all such instruments as may be
\n ——
\nrequired or permitted by any present or future Law in order to evidence the
\nrespective interests of Landlord and Tenant in the Leased Premises, and shall
\ncause a memorandum of this Lease (or, if such a memorandum cannot be recorded,
\nthis Lease), and any supplement hereto or thereto, to be recorded in such manner
\nand in such places as may be required or permitted by any present or future Law
\nin order to protect the validity and priority of this Lease.<\/p>\n
12. Maintenance and Repair.
\n ———————- <\/p>\n
(a) Tenant shall at all times maintain the Leased Premises and
\nthe Adjoining Property in as good repair and appearance as they are in on the
\ndate hereof and after completion of any deferred maintenance items required by
\nInitial Lender and fit to be used for their intended use in accordance with the
\nbetter of the practices generally recognized as then acceptable by other
\ncompanies in its industry or the then current standards for similarly situated
\noffice buildings prudently managed, and, in the case of the Equipment, in as
\ngood mechanical condition as it was on the later of the date hereof or the date
\nof its installation, except for ordinary wear and tear. Tenant shall take every
\nother action necessary or appropriate for the preservation and safety of the
\nLeased Premises. Tenant shall make all Alterations of every kind and nature,
\nwhether foreseen or unforeseen, which may be required to comply with the
\nforegoing requirements of this Paragraph 12(a) whether disclosed by Landlord or
\nTenant or as a consequence of any inspection by Lender promptly after the need
\nfor such Alterations becomes known to Landlord or Tenant. Any Alterations
\nrequired to be made as a result of any inspection by Lender shall be commenced
\nwithin thirty (30) days from receipt of notice from Landlord or Lender and
\nthereafter diligently pursued to completion. Landlord shall not be required to
\nmake any Alteration, whether foreseen or unforeseen, or to maintain any of the
\nLeased Premises or Adjoining Property in any way, and Tenant hereby expressly
\nwaives any right which may be provided for in any Law now or hereafter in effect
\nto make Alterations at the expense of Landlord or to require Landlord to make
\nAlterations. Any Alteration made by Tenant pursuant to this Paragraph 12 shall
\nbe made in conformity with the provisions of Paragraph 13 and the requirements
\nof any Lender.<\/p>\n
(b) If any Improvement, now or hereafter constructed, shall (i)
\nencroach upon any setback or any property, street or right-of-way adjoining the
\nLeased Premises, (ii) violate the provisions of any restrictive covenant
\naffecting the Leased Premises, (iii) hinder or obstruct any easement or
\nright-of-way to which any of the Leased Premises is subject or (iv) impair the
\nrights of others in, to or under any of the foregoing, Tenant shall, promptly
\nafter receiving notice or otherwise acquiring knowledge thereof, either (A)
\nobtain from all necessary parties waivers or settlements of all claims,
\nliabilities and damages resulting from each such encroachment, violation,
\nhindrance, obstruction or impairment, whether the same shall affect Landlord,
\nTenant or both, or (B) take such action as shall be necessary to remove all such
\nencroachments, hindrances or obstructions and to end all such violations or
\nimpairments, including, if necessary, making Alterations.<\/p>\n
15<\/p>\n
(c) No later than June 30, 1999, Tenant shall repair the roof
\nmembrane in the Improvements, and no later than June 30, 2000 shall remove the
\ntree roots in the parking lot or otherwise repair the damage to the parking lot
\ncaused by tree roots, both as specified in that certain report prepared by
\nEckland Consulting, Inc. and dated October 28, 1998.<\/p>\n
13. Alterations and Improvements.
\n —————————- <\/p>\n
(a) Tenant shall have the right, without having obtained the
\nprior written consent of Landlord and Lender and provided that no Event of
\nDefault then exists, to make (i) non-structural Alterations that do not affect
\nthe structural integrity of the Improvements, or adversely affect any of the
\nmechanical or electrical systems of the Improvements, (ii) Alterations that are
\nrequired in order to comply with Law, (iii) structural Alterations or a series
\nof related structural Alterations that, as to any such structural Alterations or
\nseries of related structural Alterations, do not cost in excess of $500,000 and
\nthat do not affect the structural integrity of the Improvements or adversely
\naffect any of the mechanical or electrical systems in the Improvements and (iv)
\nto install Equipment in the Improvements or accessions to the Equipment that, as
\nto such Equipment or accessions, do not cost in excess of $500,000, so long as
\nat the time of construction or installation of any such Equipment or Alterations
\nno Event of Default exists and the value and utility of the Leased Premises is
\nnot diminished thereby. If the cost of any structural Alterations, series of
\nrelated structural Alterations, Equipment or accessions thereto is in excess of
\n$500,000, the prior written approval of Landlord and Lender shall be required,
\nsuch approval not to be unreasonably withheld or delayed. Tenant shall not
\nconstruct upon the Land any additional buildings without having first obtained
\nthe prior written consent of Landlord and Lender.<\/p>\n
(b) If Tenant makes any Alterations pursuant to this Paragraph
\n13 or Paragraph 36 or as required by Paragraph 12 or 17 (such Alterations and
\nactions being hereinafter collectively referred to as “Work”), whether or not
\n —-
\nLandlord’s consent is required, then (i) the market value of the Leased Premises
\nshall not be lessened by any such Work or its usefulness impaired, (ii) all such
\nWork shall be performed by Tenant in a good and workmanlike manner, (iii) all
\nsuch Work shall be expeditiously completed in compliance with all Legal
\nRequirements, (iv) all such Work shall comply with the Insurance Requirements,
\n(v) if any such Work involves the replacement of Equipment or parts thereto, all
\nreplacement Equipment or parts shall have a value and useful life equal to the
\ngreater of (A) the value and useful life on the date hereof of the Equipment
\nbeing replaced or (B) the value and useful life of the Equipment being replaced
\nimmediately prior to the occurrence of the event which required its replacement,
\n(vi) Tenant shall promptly discharge or remove all liens filed against any of
\nthe Leased Premises arising out of such Work, (vii) Tenant shall procure and pay
\nfor all permits and licenses required in connection with any such Work, (viii)
\nall such Work shall be the property of Landlord and shall be subject to this
\nLease, and Tenant shall execute and deliver to Landlord any document requested
\nby Landlord evidencing the assignment to Landlord of all estate, right, title
\nand interest (other than the leasehold estate created hereby) of Tenant or any
\nother Person thereto or therein, and (ix) with respect to Alterations or a
\nseries of related Alterations that cost in excess of $500,000, Tenant shall
\ncomply, to the extent reasonably requested by Landlord or required by this
\nLease, with the provisions of Paragraph 19(a), whether or not such Work involves
\nrestoration of the Leased Premises.<\/p>\n
14. Permitted Contests. Notwithstanding any other provision of this
\n ——————
\nLease, Tenant shall not be required to (a) pay any Imposition, (b) discharge or
\nremove any lien referred to in Paragraph 11 or 13 or (c) take any action with
\nrespect to any encroachment, violation, hindrance, obstruction or impairment
\nreferred to in Paragraph 12(b) (such non-compliance with the terms hereof being
\nhereinafter referred to collectively as “Permitted Violations”), so long as at
\n ——————–
\nthe time of such contest no Event of Default exists and so long as Tenant shall
\ncontest, in good faith, the existence, amount or validity thereof, the amount of
\nthe damages caused thereby, or the <\/p>\n
16<\/p>\n
extent of its or Landlord’s liability therefor by appropriate proceedings which
\nshall operate during the pendency thereof to prevent or stay (i) the collection
\nof, or other realization upon, the Permitted Violation so contested, (ii) the
\nsale, forfeiture or loss of any of the Leased Premises or any Rent to satisfy or
\nto pay any damages caused by any Permitted Violation, (iii) any interference
\nwith the use or occupancy of any of the Leased Premises, (iv) any interference
\nwith the payment of any Rent, or (v) the cancellation or increase in the rate of
\nany insurance policy or a statement by the carrier that coverage will be denied.
\nTenant shall provide Landlord security which is satisfactory, in Landlord’s
\nreasonable judgment, to assure that such Permitted Violation is corrected,
\nincluding all Costs, interest and penalties that may be incurred or become due
\nin connection therewith. While any proceedings which comply with the
\nrequirements of this Paragraph 14 are pending and the required security is held
\nby Landlord, Landlord shall not have the right to correct any Permitted
\nViolation thereby being contested unless Landlord is required by law to correct
\nsuch Permitted Violation and Tenant’s contest does not prevent or stay such
\nrequirement as to Landlord. Each such contest shall be promptly and diligently
\nprosecuted by Tenant to a final conclusion, except that Tenant, so long as the
\nconditions of this Paragraph 14 are at all times complied with, has the right to
\nattempt to settle or compromise such contest through negotiations. Tenant shall
\npay any and all losses, judgments, decrees and Costs in connection with any such
\ncontest and shall, promptly after the final determination of such contest, fully
\npay and discharge the amounts which shall be levied, assessed, charged or
\nimposed or be determined to be payable therein or in connection therewith,
\ntogether with all penalties, fines, interest and Costs thereof or in connection
\ntherewith, and perform all acts the performance of which shall be ordered or
\ndecreed as a result thereof. No such contest shall subject Landlord to the risk
\nof any civil or criminal liability.<\/p>\n
15. Indemnification.
\n ————— <\/p>\n
(a) With respect to any action or event which arises or occurs
\nprior to the expiration of the Term or any earlier termination of this Lease
\nand\/or any consequences thereof, whether ascertainable prior to or at any time
\nafter such expiration of the Term or earlier termination of the Lease, Tenant
\nshall pay, protect, indemnify, defend, save and hold harmless Landlord, Lender
\nand all other Persons described in Paragraph 30 (each an “Indemnitee”) from and
\n ———-
\nagainst any and all liabilities, losses, damages (including punitive damages),
\npenalties, Costs (including reasonable attorneys’ fees and costs), causes of
\naction, suits, claims, demands or judgments of any nature whatsoever, howsoever
\ncaused, unless caused by the gross negligence or willful misconduct of the
\nLandlord or any other Indemnitee, without regard to the form of action and
\nwhether based on strict liability, negligence or any other theory of recovery at
\nlaw or in equity, arising from (i) any matter pertaining to the acquisition (or
\nthe negotiations leading thereto), ownership, use, non-use, occupancy,
\noperation, condition, design, construction, maintenance, repair or restoration
\nof the Leased Premises or Adjoining Property, (ii) any casualty in any manner
\narising from the Leased Premises or Adjoining Property, whether or not
\nIndemnitee has or should have knowledge or notice of any defect or condition
\ncausing or contributing to said casualty, (iii) any violation by Tenant of any
\nprovision of this Lease, any contract or agreement relating to the Leased
\nPremises to which Tenant is a party, any Legal Requirement or any Permitted
\nEncumbrance or any encumbrance Tenant consented to or any provision of the
\nMortgage or Assignment that is binding upon Tenant or (iv) any alleged,
\nthreatened or actual Environmental Violation, including (A) liability for
\nresponse costs and for costs of removal and remedial action incurred by the
\nUnited States Government, any state or local governmental unit or any other
\nPerson, or damages from injury to or destruction or loss of natural resources,
\nincluding the reasonable costs of assessing such injury, destruction or loss,
\nincurred pursuant to Section 107 of CERCLA, or any successor section or act or
\nprovision of any similar state or local Law, (B) liability for costs and
\nexpenses of abatement, correction or clean-up, fines, damages, response costs or
\npenalties which arise from the provisions of any of the other Environmental Laws
\nand (C) liability for personal injury or property damage arising under <\/p>\n
17<\/p>\n
any statutory or common-law tort theory, including damages assessed for the
\nmaintenance of a public or private nuisance or for carrying on of a dangerous
\nactivity.<\/p>\n
(b) In case any action or proceeding is brought against any
\nIndemnitee by reason of any such claim, (i) Tenant may, except in the event of a
\nconflict of interest or a dispute between Tenant and any such Indemnitee or
\nduring the continuance of an Event of Default, retain its own counsel and defend
\nsuch action (it being understood that Landlord may, at its own cost, employ
\ncounsel of its choice to monitor the defense of any such action) and (ii) such
\nIndemnitee shall notify Tenant to resist or defend such action or proceeding by
\nretaining counsel reasonably satisfactory to such Indemnitee, and such
\nIndemnitee will cooperate and assist in the defense of such action or proceeding
\nif reasonably requested so to do by Tenant. In the event of a conflict of
\ninterest or dispute or during the continuance of an Event of Default, Landlord
\nshall have the right to select counsel, and the reasonable cost of such counsel
\nshall by paid by Tenant.<\/p>\n
(c) The obligations of Tenant under this Paragraph 15 with
\nrespect to any action or event which arises or occurs prior to the expiration of
\nthe Term or any earlier termination of this Lease and\/or the consequences
\nthereof, shall survive any termination, expiration or rejection in bankruptcy of
\nthis Lease.<\/p>\n
16. Insurance.
\n ——— <\/p>\n
(a) Tenant shall maintain the following insurance on or in
\nconnection with the Leased Premises:<\/p>\n
(i) Insurance against physical loss or damage to the
\nImprovements and Equipment as provided under a standard “All Risk” property
\npolicy including but not limited to flood (if the Leased Premises is in a flood
\nzone) in amounts not less than the actual replacement cost of the Improvements
\nand Equipment. Such policies shall contain Replacement Cost and Agreed Amount
\nEndorsements and shall contain deductibles as may be recommended by Tenant’s
\ninsurance broker and approved by Landlord and Lender, such approval not to be
\nunreasonably withheld and in any event not less than $100,000. In addition,
\nTenant shall maintain earthquake coverage (which may include California real
\nestate in addition to the Leased Premises) of not less than $25,000,000 with a
\ndeductible equal to the lesser of $10,000,000 or 5% of the casualty loss,
\nprovided that proceeds received from any earthquake casualty in an amount equal
\nto the product of the probable maximum loss factor for the Improvements
\nmultiplied by the replacement cost of the Improvements (but in no event more
\nthan the cost of the restoration of the Improvements) shall be allocated by
\nTenant for restoration of the Leased Premises prior to allocation of such
\nproceeds to restoration of any other improvements insured under such policy.<\/p>\n
(ii) Commercial General Liability Insurance (including
\nbut not limited to Incidental Medical Malpractice and Host Liquor Liability) and
\nBusiness Automobile Liability Insurance (including Non-Owned and Hired
\nAutomobile Liability) against claims for personal and bodily injury, death or
\nproperty damage occurring on, in or as a result of the use of the Leased
\nPremises, in an amount not less than $15,000,000 per occurrence\/annual aggregate
\nand all other coverage extensions that are usual and customary for properties of
\nthis size and type provided, however, that the Landlord shall have the right to
\nrequire such higher limits as may be reasonable and customary for properties of
\nthis size and type.<\/p>\n
(iii) Workers’ compensation insurance covering employees
\nof Tenant in connection with their employment on or about any of the Leased
\nPremises for which claims for death, disease or bodily injury may be asserted
\nagainst Landlord, Tenant or any of the Leased Premises or, in lieu of such
\nWorkers’ Compensation Insurance, a program of <\/p>\n
18<\/p>\n
self-insurance complying with the rules, regulations and requirements of the
\nappropriate agency of the State.<\/p>\n
(iv) Comprehensive Boiler and Machinery Insurance on any
\nof the Equipment or any other equipment on or in the Leased Premises, in an
\namount not less than $5,000,000 per accident for damage to property. Such
\npolicies shall include at least $5,000,000 per accident for Off-Premises Service
\nInterruption, “System Breakdowns” and Expediting Expenses.<\/p>\n
(v) Business Income\/Extra Expense Insurance at limits
\nsufficient to cover 100% of the period of indemnity not less than eighteen (18)
\nmonths from time of loss. Such insurance shall name Landlord as loss payee
\nsolely with respect to Rent payable to or for the benefit of Landlord as its
\ninterest appears under this Lease.<\/p>\n
(vi) During any period in which substantial Alterations
\nat the Leased Premises are being undertaken, builder’s risk insurance covering
\nthe total completed value including any “soft costs” with respect to the
\nImprovements being altered or repaired (on a completed value, non-reporting
\nbasis), replacement cost of work performed and equipment, supplies and materials
\nfurnished in connection with such construction or repair of Improvements or
\nEquipment, together with such “soft cost” endorsements and such other
\nendorsements as Landlord may reasonably require and general liability, worker’s
\ncompensation and automobile liability insurance with respect to the Improvements
\nbeing constructed, altered or repaired.<\/p>\n
(vii) Such other insurance (or other terms with respect
\nto any insurance required pursuant to this Paragraph 16, including without
\nlimitation amounts of coverage, deductibles, form of mortgagee clause) on or in
\nconnection with any of the Leased Premises as Landlord or Lender may reasonably
\nrequire, which at the time is usual and commonly obtained in connection with
\nproperties similar in type of building size, use and location to the Leased
\nPremises.<\/p>\n
(b) The insurance required by Paragraph 16(a) shall be written
\nby one or more (i) domestic primary insurer(s) having an investment grade rating
\nof “AA” or a comparable claims paying ability assigned by S&P or equivalent
\ncredit rating agency approved by Landlord and Lender, and approved to write
\ninsurance policies by the State Insurance Department for the State or (ii) such
\nother insurer(s) as may be otherwise approved by Landlord and Lender, such
\napproval not to be unreasonably withheld. The insurance policies (i) shall be
\nfor such terms as Landlord may reasonably approve and (ii) shall be in amounts
\nsufficient at all times to satisfy any coinsurance requirements thereof. The
\ninsurance referred to in Paragraphs 16(a)(i), 16(a)(iv) and 16(a)(vi) shall name
\nLandlord as Owner and Lender as loss payee and Tenant as its interest may
\nappear. The insurance referred to in Paragraph 16(a)(ii) shall name Landlord and
\nLender as additional insureds, and the insurance referred to in Paragraph
\n16(a)(v) shall name Landlord (or Lender, if requested by Landlord) as loss payee
\nto the extent provided in Paragraph 16(a)(v). If said insurance or any part
\nthereof shall expire, be withdrawn, become void, voidable, unreliable or unsafe
\nfor any reason, including a breach of any condition thereof by Tenant or the
\nfailure or impairment of the capital of any insurer, or if for any other reason
\nwhatsoever said insurance shall become reasonably unsatisfactory to Landlord,
\nTenant shall immediately obtain new or additional insurance reasonably
\nsatisfactory to Landlord.<\/p>\n
(c) Each insurance policy referred to in clauses (i), (iv), (v)
\nand (vi) of Paragraph 16(a) shall contain standard non-contributory mortgagee
\nclauses in favor of and acceptable to Lender. Each policy required by any
\nprovision of Paragraph 16(a), except clause (iii) thereof, shall provide that it
\nmay not be cancelled or terminated, substantially modified or allowed to lapse
\non any renewal date except after thirty (30) days’ prior notice to Landlord and
\nLender. Each such policy shall also provide that any loss otherwise payable
\nthereunder shall be <\/p>\n
19<\/p>\n
payable notwithstanding (i) any act or omission of Landlord or Tenant which
\nmight, absent such provision, result in a forfeiture of all or a part of such
\ninsurance payment, (ii) the occupation or use of any of the Leased Premises for
\npurposes more hazardous than those permitted by the provisions of such policy,
\n(iii) any foreclosure or other action or proceeding taken by Lender pursuant to
\nany provision of the Mortgage, Note, Assignment or other document evidencing or
\nsecuring the Loan upon the happening of an event of default therein or (iv) any
\nchange in title to or ownership of any of the Leased Premises.<\/p>\n
(d) Tenant shall pay as they become due all premiums for the
\ninsurance required by Paragraph 16(a) (and in any event not less than 30 days
\nprior to cancellation for non-payment), shall renew or replace each policy and
\ndeliver to Landlord evidence of the renewal or replacement of each such policy
\nprior to the stated expiration thereof (which evidence may consist of a binder,
\ncertificate or replacement policy) and, upon receipt shall promptly deliver to
\nLandlord all original certificates of insurance.<\/p>\n
(e) Anything in this Paragraph 16 to the contrary
\nnotwithstanding, any insurance which Tenant is required to obtain pursuant to
\nParagraph 16(a) may be carried under a “blanket” or umbrella policy or policies
\ncovering other properties or liabilities of Tenant, provided that such “blanket”
\nor umbrella policy or policies otherwise comply with the provisions of this
\nParagraph 16 and provided further that Tenant shall provide to Landlord a
\nStatement of Values which shall be reviewed annually and amended as necessary
\nbased on Replacement Cost Valuations. A certified copy of each such “blanket” or
\numbrella policy shall promptly be delivered to Landlord, or if requested by
\nLandlord, to Lender.<\/p>\n
(f) Tenant shall promptly comply with and conform to (i) all
\nprovisions of each insurance policy required by this Paragraph 16 and (ii) all
\nrequirements of the insurers thereunder applicable to Landlord, Tenant or any of
\nthe Leased Premises or to the use, manner of use, occupancy, possession,
\noperation, maintenance, alteration or repair of any of the Leased Premises, even
\nif such compliance necessitates Alterations or results in interference with the
\nuse or enjoyment of any of the Leased Premises.<\/p>\n
(g) Tenant shall not carry separate insurance concurrent in
\nform or contributing in the event of a Casualty with that required in this
\nParagraph 16 unless (i) Landlord and Lender are included therein as named
\ninsureds, with loss payable as provided herein, and (ii) such separate insurance
\ncomplies with the other provisions of this Paragraph 16. Tenant shall promptly
\nnotify Landlord of such separate insurance and shall deliver to Landlord a
\ncertified copy of policies thereof.<\/p>\n
(h) All policies shall contain effective waivers by the carrier
\nagainst all claims for insurance premiums against Landlord and Lender and shall
\ncontain full waivers of subrogation against the Landlord and Lender.<\/p>\n
(i) All proceeds of insurance payable under clause (v) with
\nrespect to the Rent shall be payable to Landlord or, if required by the
\nMortgage, to Lender. Proceeds of insurance required under clauses (i) and (iv)
\nof Paragraph 16(a) and proceeds attributable to Builder’s Risk insurance (other
\nthan its general liability coverage provisions) under clause (vi) of Paragraph
\n16(a) shall be payable to Landlord (or Lender) and applied as set forth in
\nParagraph 17. Tenant shall apply the Net Award to restoration of the Leased
\nPremises in accordance with the applicable provisions of this Lease.<\/p>\n
17. Casualty and Condemnation.
\n ————————- <\/p>\n
(a) If any Casualty to the Leased Premises occurs, Tenant shall
\ngive Landlord and Lender immediate notice thereof. So long as no Event of
\nDefault exists Tenant is <\/p>\n
20<\/p>\n
hereby authorized to adjust, collect and compromise all claims under any of the
\ninsurance policies required by Paragraph 16(a) and to execute and deliver on
\nbehalf of Landlord all necessary proofs of loss, receipts, vouchers and releases
\nrequired by the insurers and Landlord shall have the right to join with Tenant
\ntherein. Any final adjustment, settlement or compromise of any such claim shall
\nbe subject to the prior written approval of Landlord, which approval shall not
\nbe unreasonably withheld. If an Event of Default exists, Tenant shall not be
\nentitled to adjust, collect or compromise any such claim or to participate with
\nLandlord in any adjustment, collection and compromise of the Net Award payable
\nin connection with a Casualty. Tenant agrees to sign, upon the request of
\nLandlord, all such proofs of loss, receipts, vouchers and releases. Each insurer
\nis hereby authorized and directed to make payment under said policies directly
\nto Landlord or, if required by the Mortgage, to Lender instead of to Landlord
\nand Tenant jointly, and Tenant hereby appoints each of Landlord and Lender as
\nTenant’s attorneys-in-fact to endorse any draft therefor. The rights of Landlord
\nunder this Paragraph 17(a) shall be extended to Lender if and to the extent that
\nany Mortgage so provides.<\/p>\n
(b) Tenant, immediately upon receiving a Condemnation Notice,
\nshall notify Landlord and Lender thereof and will promptly deliver to Landlord
\nand Lender copies of any and all served papers it receives in connection
\ntherewith. So long as no Event of Default exists, Tenant is authorized to
\ncollect, settle and compromise the amount of any Net Award and Landlord shall
\nhave the right to join with Tenant therein. If an Event of Default exists,
\nLandlord shall be authorized to collect, settle and compromise the amount of any
\nNet Award and Tenant shall not be entitled to participate with Landlord in any
\nCondemnation proceeding or negotiations under threat thereof or to contest the
\nCondemnation or the amount of the Net Award therefor. No agreement with any
\ncondemnor in settlement or under threat of any Condemnation shall be made by
\nTenant without the written consent of Landlord, which consent shall not be
\nunreasonably withheld. Subject to the provisions of this Paragraph 17(b), Tenant
\nhereby irrevocably assigns to Landlord any award or payment to which Tenant is
\nor may be entitled by reason of any Condemnation, whether the same shall be paid
\nor payable for Tenant’s leasehold interest hereunder or otherwise; but nothing
\nin this Lease shall impair Tenant’s right to any award or payment on account of
\nTenant’s trade fixtures, equipment or other tangible property which is not part
\nof the Equipment, moving expenses or loss of business, if available, to the
\nextent that and so long as (i) Tenant shall have the right to make, and does
\nmake, a separate claim therefor against the condemnor and (ii) such claim does
\nnot in any way reduce either the amount of the award otherwise payable to
\nLandlord for the Condemnation of Landlord’s fee interest in the Leased Premises
\nor the amount of the award (if any) otherwise payable for the Condemnation of
\nTenant’s leasehold interest hereunder. The rights of Landlord under this
\nParagraph 17(b) shall also be extended to Lender if and to the extent that any
\nMortgage so provides.<\/p>\n
(c) If any Casualty (whether or not insured against) or Partial
\nCondemnation shall occur, this Lease shall continue, notwithstanding such event,
\nand there shall be no abatement or reduction of any Monetary Obligations, except
\nas provided in Paragraph 17(d). Promptly after such Casualty or Partial
\nCondemnation, Tenant, as required in Paragraphs 12(a) and 13(b), shall commence
\nand diligently continue to restore the Leased Premises as nearly as possible to
\ntheir value, condition and character immediately prior to such event and will
\npromptly deliver to Landlord and Lender copies of any and all served papers it
\nreceives in connection therewith (assuming the Leased Premises to have been in
\nthe condition required by this Lease). So long as no Event of Default exists,
\nupon completion the Leased Premises will be in compliance with all Legal
\nRequirements and Environmental Laws and access to the Leased Premises will not
\nbe materially impaired on a permanent basis, any Net Award up to and including
\n$1,000,000 shall be paid by Landlord to Tenant and shall be held in a segregated
\naccount, and Tenant shall restore the Leased Premises in accordance with the
\nrequirements of Paragraphs 12(a) and 13(b) of this Lease. Any Net Award in
\nexcess of $1,000,000 shall be made available by Landlord (or Lender, if required
\nby the terms of any Mortgage) to Tenant for the restoration of any of the Leased
\nPremises pursuant to and in accordance with the provisions of <\/p>\n
21<\/p>\n
Paragraph 19 hereof. If any Condemnation which is not a Partial Condemnation
\nshall occur, Tenant shall comply with the terms and conditions of Paragraph 18.
\nLandlord and Tenant waive the provisions of California Civil Code Sections 1932
\nand 1933 and California Code of Civil Procedure Section 1265.130.<\/p>\n
(d) In the event of a Requisition of any of the Leased
\nPremises, if any Net Award payable by reason of such Requisition or Partial
\nCondemnation is (i) retained by Landlord (and not applied to restoration in the
\ncase of a Partial Condemnation), each installment of Basic Rent payable on or
\nafter the date on which the Net Award is paid to Landlord shall be reduced by a
\nfraction, the denominator of which shall be the total amount of all Basic Rent
\ndue from such date to and including the last Basic Rent Payment Date for the
\nthen existing Term and the numerator of which shall be the amount of such Net
\nAward retained by Landlord, or (ii) paid to Lender, then each installment of
\nBasic Rent thereafter payable shall be reduced in the same amount and for the
\nsame period as payments are reduced under the Note until such Net Award has been
\napplied in full or until the Term has expired, whichever first occurs.<\/p>\n
18. Termination Events.
\n —————— <\/p>\n
(a) If (i) the entire Leased Premises shall be taken by a
\nTaking or (ii) any substantial portion of the Leased Premises shall be taken by
\na Taking and in the prudent business judgment of Tenant cannot be restored to an
\nintegrated unit sufficient for Tenant’s business (each of the events described
\nin the above clauses (i) and (ii) shall hereinafter be referred to as a
\n“Termination Event”), then (x) in the case of (i) above, Tenant shall be
\n —————–
\nobligated, within thirty (30) days after Tenant receives a Condemnation Notice
\nand (y) in the case of (ii) above, Tenant shall have the option, within thirty
\n(30) days after Tenant receives a Condemnation Notice, to give to Landlord
\nwritten notice of the Tenant’s election to terminate this Lease (a “Termination
\n ———–
\nNotice”) in the form described in Paragraph 18(b).
\n——<\/p>\n
(b) A Termination Notice shall contain (i) notice of Tenant’s
\nintention to terminate this Lease on the first Basic Rent Payment Date which
\noccurs at least sixty (60) days after receipt of the Termination Notice (the
\n“Termination Date”) and (ii) a binding and irrevocable offer of Tenant to
\n —————-
\npay to Landlord the Termination Amount.<\/p>\n
(c) If Landlord shall reject such offer to pay the Termination
\nAmount pursuant to Paragraph 18(b) above by written notice to Tenant (a
\n“Rejection”), which Rejection shall contain the written consent of Lender, not
\n ———
\nlater than thirty (30) days following the receipt of the Termination Notice,
\nthen this Lease shall terminate on the Termination Date; provided that, if
\nTenant has not satisfied all Monetary Obligations on the Termination Date, then
\nLandlord may, at its option, extend the date on which this Lease may terminate
\nto a date which is no later than the first Basic Rent Payment Date after the
\nTermination Date on which Tenant has satisfied all Monetary Obligations. Upon
\nsuch termination (i) all obligations of Tenant hereunder shall terminate except
\nfor any Surviving Obligations, (ii) Tenant shall immediately vacate and shall
\nhave no further right, title or interest in or to any of the Leased Premises and
\n(iii) the Net Award shall be retained by Landlord. Notwithstanding anything to
\nthe contrary hereinabove contained, if Tenant shall have received a Rejection
\nand, on the date when this Lease would otherwise terminate as provided above,
\nLandlord shall not have received the full amount of the Net Award payable by
\nreason of the applicable Termination Event, then the date on which this Lease is
\nto terminate automatically shall be extended to the first Basic Rent Payment
\nDate after the receipt by Landlord of the full amount of the Net Award (but in
\nno event shall any such extension exceed a maximum of three months) provided
\nthat, if Tenant has not satisfied all Monetary Obligations on such date, then
\nLandlord may, at its option, extend the date on which this Lease may terminate
\nto a date which is no later than the first Basic Rent Payment Date after such
\ndate on which Tenant has satisfied all such Monetary Obligations.<\/p>\n
22<\/p>\n
(d) Unless Tenant shall have received a Rejection not later
\nthan the thirtieth (30th) day following receipt of the Termination Notice,
\nLandlord shall be conclusively presumed to have accepted such offer. If such
\noffer is accepted by Landlord then, on the Termination Date, Tenant shall pay to
\nLandlord the Termination Amount and all remaining obligations (including
\nMonetary Obligations) and, if requested by Tenant, Landlord shall pay to or
\nassign to Tenant Landlord’s entire interest in and to the Net Award.<\/p>\n
19. Restoration.
\n ———– <\/p>\n
(a) Landlord (or Lender if required by any Mortgage) shall hold
\nNet Award in excess of $1,000,000 in a fund (the “Restoration Fund”) and
\n —————-
\ndisburse amounts from the Restoration Fund only in accordance with the following
\nconditions and, if the Restoration Fund is held by a Lender, it shall be held
\nand administered in accordance with Lender’s customary procedures for similar
\naccounts:<\/p>\n
(i) prior to commencement of restoration, (A) the
\narchitects, contracts, contractors, budget (which shall include Lender’s
\nadministration costs if Lender holds the Restoration Fund), plans and
\nspecifications for the restoration shall have been approved by Landlord and
\nLender which approval shall not be unreasonably withheld and (B) Landlord and
\nLender shall be provided with performance and payment bonds which insure
\nsatisfactory completion of and payment for the restoration, are in an amount and
\nform and have a surety reasonably acceptable to Landlord, and name Landlord and
\nLender as additional dual obligees;<\/p>\n
(ii) at the time of any disbursement, no Event of
\nDefault shall exist, Tenant shall otherwise comply with the requirements imposed
\nby Lender for disbursement of the Net Award and no mechanics’ or materialmen’s
\nliens shall have been filed against any of the Leased Premises and remain
\nuncontested or undischarged;<\/p>\n
(iii) disbursements shall be made from time to time in an
\namount not exceeding the cost of the work completed since the last disbursement,
\nupon receipt of (A) satisfactory evidence, including architects’ certificates,
\nof the stage of completion, the estimated total cost of completion and
\nperformance of the work to date in a good and workmanlike manner in accordance
\nwith the contracts, plans and specifications, (B) waivers of liens, (C)
\ncontractors’ and subcontractors’ sworn statements as to completed work and the
\ncost thereof for which payment is requested, (D) a satisfactory bringdown of
\ntitle insurance and (E) other evidence of cost and payment so that Landlord can
\nverify that the amounts disbursed from time to time are represented by work that
\nis completed, in place and free and clear of mechanics’ and materialmen’s lien
\nclaims, notices of pendency, stop orders or notices of intention to file same
\nwhich have not either been fully bonded and discharged of record or in the
\nalternative fully insured to the satisfaction of Landlord and Lender by the
\ntitle company insuring the Mortgage;<\/p>\n
(iv) each request for disbursement shall be accompanied
\nby a certificate of Tenant, signed by an officer of Tenant, describing the work
\nfor which payment is requested, stating the cost incurred in connection
\ntherewith, stating that Tenant has not previously received payment for such work
\nand, upon completion of the work, also stating that the work has been fully
\ncompleted and complies with the applicable requirements of this Lease;<\/p>\n
(v) Landlord may retain ten percent (10%) of the
\nrestoration fund until the restoration is fully completed;<\/p>\n
(vi) if the Restoration Fund is held by Landlord, the
\nRestoration Fund shall not be commingled with Landlord’s other funds and shall
\nbear interest at a rate agreed to by Landlord and Tenant; and<\/p>\n
23<\/p>\n
(vii) such other reasonable conditions as Landlord or
\nLender may impose. <\/p>\n
(b) Prior to commencement of restoration and at any time during
\nrestoration, if the estimated cost of completing the restoration work free and
\nclear of all liens, as reasonably determined by Landlord, exceeds the amount of
\nthe Net Award available for such restoration, the amount of such excess shall,
\nupon demand by Landlord, be paid by Tenant to Landlord to be added to the
\nRestoration Fund. Any sum so added by Tenant which remains in the Restoration
\nFund upon completion of restoration shall be refunded to Tenant. For purposes of
\ndetermining the source of funds with respect to the disposition of funds
\nremaining after the completion of restoration, the Net Award shall be deemed to
\nbe disbursed prior to any amount added by Tenant.<\/p>\n
(c) If any sum remains in the Restoration Fund after completion
\nof the restoration and any refund to Tenant pursuant to Paragraph 19(b), such
\nsum shall be retained by Landlord or, if required by a Note or Mortgage, paid by
\nLandlord to a Lender.<\/p>\n
20. INTENTIONALLY DELETED.
\n ——————— <\/p>\n
21. Assignment and Subletting; Prohibition against Leasehold
\n ——————————————————–
\n Financing.
\n ——— <\/p>\n
(a) (i) Tenant shall have the right, upon thirty (30) days
\nprior written notice to Landlord and Lender, with no consent of Landlord or
\nLender being required or necessary (“Preapproved Assignment”) to assign this
\n ———————-
\nLease, by operation of law or otherwise, to any Person (“Preapproved Assignee”)
\n ——————–
\n(A) that is a wholly-owned United States subsidiary of Tenant on the date of the
\nassignment (except that an assignment to Vantis Corp. shall not be permitted) or
\n(B) that immediately following such assignment will have a publicly traded
\nunsecured senior debt rating of “Baa3” or better from Moody’s or a rating of
\n“BBB-” or better from S&P, provided that the rating from the other agency (i.e.
\nMoody’s or S&P, as the case may be) shall not be less than Ba1 or BB+ and in the
\nevent all of such rating agencies cease to furnish such ratings, then a
\ncomparable rating by any rating agency reasonably acceptable to Landlord and
\nLender or (C) that is the surviving entity after a merger or consolidation in
\nwhich Tenant is a party, so long as the net worth of such surviving entity is
\nnot less than the net worth of Tenant immediately prior thereto.<\/p>\n
(ii) If Tenant desires to assign this Lease, whether by
\noperation of law or otherwise, to a Person (“Non-Preapproved Assignee”) who
\n ————————
\nwould not be a Preapproved Assignee (“Non-Preapproved Assignment”) then Tenant
\n ————————–
\nshall, not less than forty-five (45) days prior to the date on which it desires
\nto make a Non-Preapproved Assignment submit to Landlord and Lender information
\nregarding the following with respect to the Non-Preapproved Assignee
\n(collectively, the “Review Criteria”): (A) credit, (B) capital structure, (C)
\n —————
\nmanagement, (D) operating history, (E) proposed use of the Leased Premises and
\n(F) risk factors associated with the proposed use of the Leased Premises by the
\nNon-Preapproved Assignee, taking into account factors such as environmental
\nconcerns, product liability and the like. Landlord and Lender shall review such
\ninformation and shall approve or disapprove the Non-Preapproved Assignee no
\nlater than the thirtieth (30th) day following receipt of all such information,
\nand Landlord and Lender shall be deemed to have acted reasonably in granting or
\nwithholding consent if such grant or disapproval is based on their review of the
\nReview Criteria applying prudent business judgment.<\/p>\n
(b) Tenant shall have the right, upon thirty (30) days prior
\nwritten notice to Landlord and Lender, to enter into one or more subleases that
\ndemise, in the aggregate, up to but not in excess of thirty percent (30%) of the
\nleaseable space in the Improvements with no consent or approval of Landlord
\nbeing required or necessary (“Preapproved Sublet”). Other than pursuant to
\n ——————
\nPreapproved Sublets, at no time during the Term shall subleases for more than<\/p>\n
24<\/p>\n
thirty percent (30%) of the gross space in the Leased Premises without the prior
\nwritten consent of Landlord, which consent shall be granted or withheld based on
\na review of the Review Criteria as they relate to the proposed sublessee and the
\nterms of the proposed sublease. Landlord and Lender shall be deemed to have
\nacted reasonably in granting or withholding consent if such grant or disapproval
\nis based on their review of the Review Criteria applying prudent business
\njudgment.<\/p>\n
(c) If Tenant assigns all its rights and interest under this
\nLease, the assignee under such assignment shall expressly assume all the
\nobligations of Tenant hereunder, actual or contingent, including obligations of
\nTenant which may have arisen on or prior to the date of such assignment, by a
\nwritten instrument delivered to Landlord at the time of such assignment. Each
\nsublease of any of the Leased Premises shall be subject and subordinate to the
\nprovisions of this Lease. No assignment or sublease made as permitted by this
\nParagraph 21 shall affect or reduce any of the obligations of Tenant hereunder,
\nand all such obligations shall continue in full force and effect as obligations
\nof a principal and not as obligations of a guarantor, as if no assignment or
\nsublease had been made. No assignment or sublease shall impose any additional
\nobligations on Landlord under this Lease.<\/p>\n
(d) Tenant shall, within ten (10) days after the execution and
\ndelivery of any assignment or sublease deliver a duplicate original copy thereof
\nto Landlord which, in the event of an assignment, shall be in recordable form.<\/p>\n
(e) As security for performance of its obligations under this
\nLease, Tenant hereby grants, conveys and assigns to Landlord all right, title
\nand interest of Tenant in and to all subleases now in existence or hereafter
\nentered into for any or all of the Leased Premises, any and all extensions,
\nmodifications and renewals thereof and all rents, issues and profits therefrom.
\nLandlord hereby grants to Tenant a license to collect and enjoy all rents and
\nother sums of money payable under any sublease of any of the Leased Premises,
\nprovided, however, that Landlord shall have the absolute right to revoke said
\nlicense and to collect such rents and sums of money, to retain the same and to
\nthe extent received the same shall be credited against Basic Rent as the same
\nshall be due and owing.<\/p>\n
(f) Tenant shall not have the power to mortgage, pledge or
\notherwise encumber its interest under this Lease or any sublease of the Leased
\nPremises, and any such mortgage, pledge or encumbrance made in violation of this
\nParagraph 21 shall be void and of no force and effect.<\/p>\n
(g) Tenant shall transfer its interest in this Lease to any
\nPerson who purchases all or substantially all of the assets of Tenant.<\/p>\n
(h) Landlord may sell or transfer the Leased Premises at any
\ntime without Tenant’s consent to any third party (each a “Third Party
\n ———–
\nPurchaser”); provided, however, so long as no monetary Event of Default exists,
\n———
\nin no event may Landlord sell or transfer to Intel Corporation, National
\nSemiconductor, Inc. or to any Person directly engaged in the design, engineering
\nor manufacturing of integrated circuits, including, without limitation, micro-
\nprocessors, memory, networking, logic and communications devices (any of the
\nforegoing a “Prohibited Purchaser”). The foregoing conditions shall not apply to
\n ——————–
\nany sale of the Leased Premises that occurs during the last eighteen months of
\nthe Term, or to any sale to a pension fund or finance affiliate of a Prohibited
\nPurchaser (excluding, however, a pension fund or finance affiliate of Intel
\nCorporation or National Semiconductor, Inc.), and, in any event, the aforesaid
\nconditions shall be null and void and of no force and effect upon any
\nforeclosure of a Loan or acceptance by a Lender of a deed in lieu thereof. In
\nthe event of any such transfer, Tenant shall attorn to any Third Party Purchaser
\nas Landlord so long as such Third Party Purchaser and Landlord notify Tenant in
\nwriting of such transfer and such Third Party Purchaser expressly <\/p>\n
25<\/p>\n
assumes in writing the obligations of the Landlord hereunder. At the request of
\nLandlord and at Landlord’s cost, Tenant will execute such documents confirming
\nthe agreement referred to above and such other agreements as Landlord may
\nreasonably request, provided that such agreements do not increase the
\nliabilities and obligations of Tenant hereunder. Tenant shall not bear any costs
\nor expenses in connection with any sale or transfer of the Leased Premises to a
\nThird Party Purchaser. In no event shall the terms of this Paragraph 21(g) be or
\nbe deemed to be in effect following the termination or expiration of this Lease.<\/p>\n
22. Events of Default.
\n —————– <\/p>\n
(a) The occurrence of any one or more of the following (after
\nexpiration of any applicable cure period as provided in Paragraph 22(b)) shall,
\nat the sole option of Landlord, constitute an “Event of Default” under this
\n —————-
\nLease:<\/p>\n
(i) a failure by Tenant to make any payment of any
\nMonetary Obligation, regardless of the reason for such failure;<\/p>\n
(ii) a failure by Tenant duly to perform and observe, or
\na violation or breach of, any other provision of this Lease not otherwise
\nspecifically mentioned in this Paragraph 22(a);<\/p>\n
(iii) any representation or warranty made by Tenant
\nherein or in any certificate, demand or request made pursuant hereto proves to
\nbe incorrect, when made, in any material respect;<\/p>\n
(iv) a default beyond any applicable cure period or at
\nmaturity by Tenant in any payment of principal or interest on any obligations
\nfor borrowed money having an original principal balance of $10,000,000 or more
\nin the aggregate, or in the performance of any other provision contained in any
\ninstrument under which any such obligation is created or secured (including the
\nbreach of any covenant thereunder), (x) if such payment is a payment at maturity
\nor a final payment, or (y) if an effect of such default is to cause, or permit
\nany Person to cause, such obligation to become due prior to its stated maturity
\nand Tenant is not diligently and in good faith contesting such default or has
\npaid such obligation in full;<\/p>\n
(v) a default by Tenant beyond any applicable cure
\nperiod in the payment of rent under, or in the performance of any other material
\nprovision of, any other lease or leases that have, in the aggregate, rental
\nobligations over the terms thereof of $10,000,000 or more if the Landlord under
\nany such lease or leases actually terminates such lease;<\/p>\n
(vi) a final, non-appealable judgment or judgments for
\nthe payment of money in excess of $10,000,000 in the aggregate shall be rendered
\nagainst Tenant and the same shall remain undischarged for a period of sixty (60)
\nconsecutive days;<\/p>\n
(vii) Tenant shall (A) voluntarily be adjudicated a
\nbankrupt or insolvent, (B) seek or consent to the appointment of a receiver or
\ntrustee for itself or for the Leased Premises, (C) file a petition seeking
\nrelief under the bankruptcy or other similar laws of the United States, any
\nstate or any jurisdiction, (D) make a general assignment for the benefit of
\ncreditors, or (E) be unable to pay its debts as they mature;<\/p>\n
(viii) a court shall enter an order, judgment or decree
\nappointing, without the consent of Tenant, a receiver or trustee for it or for
\nany of the Leased Premises or approving a petition filed against Tenant which
\nseeks relief under the bankruptcy or <\/p>\n
26<\/p>\n
other similar laws of the United States, any state or any jurisdiction, and such
\norder, judgment or decree shall remain undischarged or unstayed ninety (90) days
\nafter it is entered;<\/p>\n
(ix) the Leased Premises shall have been vacated or
\nabandoned;<\/p>\n
(x) Tenant shall be liquidated or dissolved or shall
\nbegin proceedings towards its liquidation or dissolution;<\/p>\n
(xi) the estate or interest of Tenant in any of the
\nLeased Premises shall be levied upon or attached in any proceeding and such
\nestate or interest is about to be sold or transferred or such process shall not
\nbe vacated or discharged within ninety (90) days after it is made;<\/p>\n
(xii) a failure by Tenant to perform or observe, or a
\nviolation or breach of, or a misrepresentation by Tenant under any or any
\ndocument between Tenant and Lender or from Tenant to Lender, if such failure,
\nviolation, breach or misrepresentation gives rise to a default beyond any
\napplicable cure period with respect to any Loan; or<\/p>\n
(xiii) a failure by Tenant to maintain in effect any
\nlicense or permit necessary for the use, occupancy or operation of the Leased
\nPremises.<\/p>\n
(b) No notice or cure period shall be required in any one or
\nmore of the following events: (A) the occurrence of an Event of Default under
\nclause (i) (except as otherwise set forth below), (iii), (iv), (v), (vi), (vii),
\n(viii), (ix), (x), (xi) or (xii) of Paragraph 22(a); (B) if Tenant shall fail to
\ncomply with the provisions of Paragraph 16(d) of this Lease or an assignment or
\nsublease entered into in violation of Paragraph 21; or (C) the default is such
\nthat any delay in the exercise of a remedy by Landlord could reasonably be
\nexpected to cause irreparable harm to Landlord. If the default consists of the
\nfailure to pay any Monetary Obligation under clause (i) of Paragraph 22(a), the
\napplicable cure period shall be five (5) days from the date on which notice is
\ngiven, but, if the default consists of a failure to pay Basic Rent, Landlord
\nshall not be obligated to give notice of, or allow any cure period for, any such
\ndefault more than twice within any Lease Year. If the default consists of a
\ndefault under clauses (ii) or (xiv) of Paragraph 22(a), other than the events
\nspecified in clauses (B) and (C) of the first sentence of this Paragraph 22(b),
\nthe applicable cure period shall be twenty (20) days from the date on which
\nnotice is given or, if the default cannot be cured within such twenty (20) day
\nperiod and delay in the exercise of a remedy would not (in Landlord’s reasonable
\njudgment) cause any material adverse harm to Landlord or any of the Leased
\nPremises, the cure period shall be extended for the period required to cure the
\ndefault (but such cure period, including any extension, shall not in the
\naggregate exceed ninety (90) days), provided that Tenant shall commence to cure
\nthe default within the said twenty-day period and shall actively, diligently and
\nin good faith proceed with and continue the curing of the default until it shall
\nbe fully cured. The notices described in this Paragraph 22(b) are in lieu and
\nnot in addition to the notice under California Civil Code 1161.<\/p>\n
23. Remedies and Damages Upon Default.
\n ———————————-<\/p>\n
(a) If an Event of Default shall have occurred and is
\ncontinuing, Landlord shall have the right, at its sole option, then or at any
\ntime thereafter, to exercise its remedies and to collect damages from Tenant in
\naccordance with this Paragraph 23, subject in all events to applicable Law,
\nwithout demand upon or notice to Tenant except as otherwise provided in
\nParagraph 22(b) and this Paragraph 23.<\/p>\n
(i) Landlord may give Tenant notice of Landlord’s
\nintention to terminate this Lease on a date specified in such notice. Upon such
\ndate, this Lease, the estate <\/p>\n
27<\/p>\n
hereby granted and all rights of Tenant hereunder shall expire and terminate.
\nUpon such termination, Tenant shall immediately surrender and deliver possession
\nof the Leased Premises to Landlord in accordance with Paragraph 26. If Tenant
\ndoes not so surrender and deliver possession of the Leased Premises, Landlord
\nmay re-enter and repossess the Leased Premises or by summary proceedings,
\nejectment or any other lawful means or procedure. Upon or at any time after
\ntaking possession of the Leased Premises, Landlord may, by peaceable means or
\nlegal process, remove any Persons or property therefrom. Landlord shall be under
\nno liability for or by reason of any such entry, repossession or removal.
\nNotwithstanding such entry or repossession, Landlord may (A) exercise the remedy
\nset forth in and collect the damages permitted by Paragraph 23(a)(iii) or (B)
\ncollect the damages set forth in Paragraph 23(b) or (c).<\/p>\n
(ii) After repossession of the Leased Premises pursuant
\nto clause (i) above, Landlord shall have the right to relet any of the Leased
\nPremises to such tenant or tenants, for such term or terms, for such rent, on
\nsuch conditions and for such uses as Landlord in its sole discretion may
\ndetermine, and collect and receive any rents payable by reason of such
\nreletting. Landlord may pay such leasing commissions, retain such management and
\nmake such Alterations in connection with such reletting as it may deem advisable
\nin its sole discretion. Notwithstanding any such reletting, Landlord may collect
\nthe damages set forth in Paragraph 23(c).<\/p>\n
(iii) Landlord may declare by notice to Tenant the entire
\nBasic Rent (in the amount of Basic Rent then in effect) for the remainder of the
\nthen current Term to be immediately due and payable. Tenant shall immediately
\npay to Landlord all such Basic Rent discounted to its present value, using a
\ndiscount factor of eight percent (8%) per annum, all accrued Rent then due and
\nunpaid, all other Monetary Obligations which are then due and unpaid and all
\nMonetary Obligations which arise or become due by reason of such Event of
\nDefault (including any Costs of Landlord). Upon receipt by Landlord of all such
\naccelerated Basic Rent and Monetary Obligations, this Lease shall remain in full
\nforce and effect and Tenant shall have the right to possession of the Leased
\nPremises from the date of such receipt by Landlord to the end of the Term, and
\nsubject to all the provisions of this Lease, including the obligation to pay all
\nincreases in Basic Rent and all Monetary Obligations that subsequently become
\ndue, except that (A) no Basic Rent which has been prepaid hereunder shall be due
\nthereafter during the said Term, (B) Tenant shall have no option to extend or
\nrenew the Term.<\/p>\n
(b) In addition to its other rights under this Lease, Landlord
\nhas the remedy described in California Civil Code Section 1951.4 which provides
\nsubstantially as follows: Landlord may continue the Lease in effect after
\nTenant’s breach and abandonment and recover the Rent as it becomes due, if
\nTenant has the right to sublet or assign, subject only to reasonable
\nlimitations. In accordance with California Civil Code Section 1951.4 (or any
\nsuccessor statute), Tenant acknowledges that in the event Tenant breaches this
\nLease and abandons the Leased Premises, this Lease shall continue in effect for
\nso long as Landlord does not terminate Tenant’s right to possession, and
\nLandlord may enforce all of its rights and remedies under this Lease, including
\nthe right to recover the Rent as it becomes due under this Lease. Tenant
\nacknowledges that the limitations on subletting and assignment set forth in
\nParagraph 21 are reasonable. Acts of maintenance or preservation or efforts to
\nrelet the Leased Premises or the appointment of a receiver upon initiative of
\nLandlord to protect Landlord’s interest under this Lease shall not constitute a
\ntermination of Tenant’s right to possession.<\/p>\n
(c) If Landlord elects to terminate this Lease upon the
\noccurrence of an Event of Default, Landlord may collect from Tenant damages
\ncomputed in accordance with the following provisions in addition to Landlord’s
\nother remedies under this Lease:<\/p>\n
(i) the worth at the time of award of any unpaid Rent
\nwhich has been earned at the time of such termination; plus<\/p>\n
28<\/p>\n
(ii) the worth at the time of award of the amount by
\nwhich any unpaid Rent which would have been earned after termination until the
\ntime of award exceeds the amount of such rental loss that Tenant proves could
\nhave been reasonably avoided; plus<\/p>\n
(iii) the worth at the time of award of the amount by
\nwhich the unpaid Rent for the balance of the Term after the time of award
\nexceeds the amount of such rental loss that Tenant proves could be reasonably
\navoided; plus <\/p>\n
(iv) any other reasonable Cost necessary to compensate
\nLandlord for all the detriment proximately caused by Tenant’s failure to perform
\nits obligations under this Lease or which in the ordinary course of things would
\nbe likely to result therefrom including, without limitation, brokerage
\ncommissions, the cost of repairing and reletting the Leased Premises and
\nreasonable attorneys’ fees; plus<\/p>\n
(v) at Landlord’s election, such other amounts in
\naddition to or in lieu of the foregoing as may be permitted from time to time by
\napplicable state law. Damages shall be due and payable from the date of
\ntermination.<\/p>\n
For purposes of clauses (i) and (ii) of this Paragraph, the “worth at
\nthe time of award” shall be computed by adding interest at the Default Rate to
\nthe past due Rent. For the purposes of clause (iii) of this Paragraph 23(d),
\nthe “worth at the time of award” shall be computed by discounting such amount at
\nthe discount rate of the Federal Reserve Bank of San Francisco at the time of
\nthe award, plus one percent (1%).<\/p>\n
(d) Landlord shall be entitled to apply the Security Deposit to
\nany amounts due under Paragraph 23(c) if this Lease shall be terminated, or, if
\nthis Lease shall remain in full force and effect, to any amounts due under
\nParagraph 23(b) or in the following order: (i) to past due Basic Rent, (ii) to
\nother past due Monetary Obligations and (iii) to Basic Rent and Monetary
\nObligations thereafter due and owing.<\/p>\n
(e) Notwithstanding anything to the contrary herein contained,
\nin lieu of or in addition to any of the foregoing remedies and damages, Landlord
\nmay exercise any remedies and collect any damages available to it at law or in
\nequity. If Landlord is unable to obtain full satisfaction pursuant to the
\nexercise of any remedy, it may pursue any other remedy which it has hereunder or
\nat law or in equity.<\/p>\n
(f) Landlord shall not be required to mitigate any of its
\ndamages hereunder unless required to by applicable Law. If any Law shall validly
\nlimit the amount of any damages provided for herein to an amount which is less
\nthan the amount agreed to herein, Landlord shall be entitled to the maximum
\namount available under such Law.<\/p>\n
(g) No termination of this Lease, repossession or reletting of
\nthe Leased Premises, exercise of any remedy or collection of any damages
\npursuant to this Paragraph 23 shall relieve Tenant of any Surviving Obligations.<\/p>\n
(h) WITH RESPECT TO ANY REMEDY OR PROCEEDING OF LANDLORD
\nHEREUNDER, LANDLORD AND TENANT WAIVES ANY RIGHT TO A TRIAL BY JURY. Landlord and
\nTenant agree that this Lease constitutes a written consent to waiver of trial by
\njury pursuant to the provisions of California Code and Civil Procedure Section
\n631, and each of Landlord and Tenant does appoint the other Person as its true
\nand lawful attorney-in-fact, which appointment is coupled with an interest, and
\ndoes hereby authorize and empower the other Person, in its name, place and
\nstead, to file this Lease with the clerk of any court of competent jurisdiction
\nas statutory written consent to waiver of trial by jury. Landlord and Tenant
\nagree that this Lease constitutes a written consent to waiver of trial by jury
\npursuant <\/p>\n
29<\/p>\n
to the provisions of California Code of Civil Procedure Section 631, and each of
\nLandlord and Tenant does appoint the other Person as its true and lawful
\nattorney-in-fact, which appointment is coupled with an interest, and does hereby
\nauthorize and empower the other Person, in its name, place and stead, to file
\nthis Lease with the clerk of any court of competent jurisdiction as statutory
\nwritten consent to waiver of trial by jury.<\/p>\n
(i) Upon the occurrence of any Event of Default, Landlord shall
\nhave the right (but no obligation) to perform any act required of Tenant
\nhereunder, including the right to retain a third party manager to manage the
\nLeased Premises and, if performance of such act requires that Landlord enter the
\nLeased Premises, Landlord may enter the Leased Premises for such purpose.<\/p>\n
(j) No failure of Landlord (i) to insist at any time upon the
\nstrict performance of any provision of this Lease or (ii) to exercise any
\noption, right, power or remedy contained in this Lease shall be construed as a
\nwaiver, modification or relinquishment thereof. A receipt by Landlord of any sum
\nin satisfaction of any Monetary Obligation with knowledge of the breach of any
\nprovision hereof shall not be deemed a waiver of such breach, and no waiver by
\nLandlord of any provision hereof shall be deemed to have been made unless
\nexpressed in a writing signed by Landlord.<\/p>\n
(k) Tenant hereby waives and surrenders, for itself and all
\nthose claiming under it, including creditors of all kinds, (i) any right and
\nprivilege which it or any of them may have under any present or future Law to
\nredeem any of the Leased Premises or to have a continuance of this Lease after
\ntermination of this Lease or of Tenant’s right of occupancy or possession
\npursuant to any court order or any provision hereof, and (ii) the benefits of
\nany present or future Law which exempts property from liability for debt or for
\ndistress for rent; provided that the foregoing shall not preclude or prevent
\nTenant from seeking relief under California Code of Civil Procedure Section 1179
\nin any action brought by Landlord for termination of this Lease.<\/p>\n
(l) Except as otherwise provided herein, all remedies are
\ncumulative and concurrent and no remedy is exclusive of any other remedy. Each
\nremedy may be exercised at any time an Event of Default has occurred and is
\ncontinuing and may be exercised from time to time. No remedy shall be exhausted
\nby any exercise thereof.<\/p>\n
24. Notices. All notices, demands, requests, consents, approvals,
\n ——-
\noffers, statements and other instruments or communications required or permitted
\nto be given pursuant to the provisions of this Lease shall be in writing and
\nshall be deemed to have been given and received for all purposes when delivered
\nin person or by Federal Express or other reliable 24-hour delivery service or
\nfive (5) business days after being deposited in the United States mail, by
\nregistered or certified mail, return receipt requested, postage prepaid,
\naddressed to the other party at its address stated above or when delivery is
\nrefused. A copy of any notice given by Tenant to Landlord shall simultaneously
\nbe given by Tenant to Reed Smith Shaw & McClay, 2500 One Liberty Place,
\nPhiladelphia, PA 19103, Attention: Chairman, Real Estate Department. A copy of
\nany notice given by Landlord to Tenant shall be sent to the attention of the
\nTenant’s Real Estate Manager, and a copy of any such notice shall simultaneously
\nbe given by Landlord to Advanced Micro Devices, Inc., One AMD Place, Sunnyvale,
\nCalifornia 94088, Attention: General Counsel. Copies of all notices sent by
\nLandlord or Tenant shall be sent to Lender at GMAC Commercial Mortgage
\nCorporation, 650 Dresher Road, Horsham, PA 19044-8015, Attention: Executive Vice
\nPresident, Commercial Loan Servicing, with copies to Commercial Capital
\nInitiatives, Inc., Wall Street Plaza, 88 Pine Street, New York, NY 10005,
\nAttention: Manager – Loan administration and Pepe & Hazard LLP, Goodwin Square,
\n225 Asylum Street, Hartford, CT 06103, Attention: Adam F. Zweifler, Esq. For the
\npurposes of this Paragraph, any party may substitute another address stated
\nabove (or substituted by a <\/p>\n
30<\/p>\n
previous notice) for its address by giving fifteen (15) days’ notice of the new
\naddress to the other party, in the manner provided above.<\/p>\n
25. Estoppel Certificate. At any time upon not less than ten (10)
\n ——————–
\ndays’ prior written request by either Landlord or Tenant (the “Requesting
\n ———-
\nParty”) to the other party (the “Responding Party”), the Responding Party shall
\n—— —————-
\ndeliver to the Requesting Party a statement in writing, executed by an
\nauthorized officer of the Responding Party, certifying (a) that, except as
\notherwise specified, this Lease is unmodified and in full force and effect, (b)
\nthe dates to which Basic Rent, Additional Rent and all other Monetary
\nObligations have been paid, (c) that, to the knowledge of the signer of such
\ncertificate and except as otherwise specified, no default by either Landlord or
\nTenant exists hereunder, (d) such other matters as the Requesting Party may
\nreasonably request, and (e) if Tenant is the Responding Party that, except as
\notherwise specified, there are no proceedings pending or, to the knowledge of
\nthe signer, threatened, against Tenant before or by any court or administrative
\nagency which, if adversely decided, would materially and adversely affect the
\nfinancial condition and operations of Tenant. Any such statements by the
\nResponding Party may be relied upon by the Requesting Party, any Person whom the
\nRequesting Party notifies the Responding Party in its request for the
\nCertificate is an intended recipient or beneficiary of the Certificate, any
\nLender or their assignees and by any prospective purchaser or mortgagee of any
\nof the Leased Premises.<\/p>\n
26. Surrender. Upon the expiration or earlier termination of this
\n ———
\nLease, Tenant shall peaceably leave and surrender the Leased Premises to
\nLandlord in the same condition in which the Leased Premises was at the
\ncommencement of this Lease, except as repaired, rebuilt, restored, altered,
\nreplaced or added to as permitted or required by any provision of this Lease,
\nand except for ordinary wear and tear. Upon such surrender, Tenant shall (a)
\nremove from the Leased Premises all property which is owned by Tenant or third
\nparties other than Landlord and (b) repair any damage caused by such removal.
\nProperty not so removed shall become the property of Landlord, and Landlord may
\nthereafter cause such property to be removed from the Leased Premises. The cost
\nof removing and disposing of such property and repairing any damage to any of
\nthe Leased Premises caused by such removal shall be paid by Tenant to Landlord
\nupon demand. Landlord shall not in any manner or to any extent be obligated to
\nreimburse Tenant for any such property which becomes the property of Landlord
\npursuant to this Paragraph 26.<\/p>\n
27. No Merger of Title. There shall be no merger of the leasehold
\n ——————
\nestate created by this Lease with the fee estate in any of the Leased Premises
\nby reason of the fact that the same Person may acquire or hold or own, directly
\nor indirectly, (a) the leasehold estate created hereby or any part thereof or
\ninterest therein and (b) the fee estate in any of the Leased Premises or any
\npart thereof or interest therein, unless and until all Persons having any
\ninterest in the interests described in (a) and (b) above which are sought to be
\nmerged shall join in a written instrument effecting such merger and shall duly
\nrecord the same.<\/p>\n
28. Books and Records.
\n —————– <\/p>\n
(a) Tenant shall keep adequate records and books of account
\nwith respect to the finances and business of Tenant generally and with respect
\nto the Leased Premises, in accordance with generally accepted accounting
\nprinciples (“GAAP”) consistently applied, and shall permit Landlord and Lender
\n —-
\nby their respective agents, accountants and attorneys, upon reasonable notice to
\nTenant, to visit and inspect the Leased Premises and to discuss the finances and
\nbusiness with the officers of Tenant, at such reasonable times as may be
\nrequested by Landlord. Upon the request of Lender or Landlord (either
\ntelephonically or in writing), Tenant shall provide the requesting party with
\ncopies of any information to which such party would be entitled in the course of
\na personal visit.<\/p>\n
31<\/p>\n
(b) Tenant shall deliver to Landlord and to Lender within one
\nhundred twenty (120) days of the close of each fiscal year, annual audited
\nfinancial statements of Tenant prepared by a nationally recognized firm of
\nindependent certified public accountants. Tenant shall also furnish to Landlord
\nwithin forty-five (45) days after the end of each of the three remaining
\nquarters unaudited financial statements and all other quarterly reports of
\nTenant, certified by Tenant’s chief financial officer, and all filings, if any,
\nof Form 10-K, Form 10-Q and other required filings with the Securities and
\nExchange Commission pursuant to the provisions of the Securities Exchange Act of
\n1934, as amended, or any other Law. All annual financial statements shall be
\naccompanied (i) by an opinion of said accountants stating that (A) there are no
\nqualifications as to the scope of the audit and (B) the audit was performed in
\naccordance with GAAP and (ii) by the affidavit of a duly authorized officer of
\nTenant, dated within five (5) days of the delivery of such statement, stating
\nthat (C) the affiant knows of no Event of Default, or event which, upon notice
\nor the passage of time or both, would become an Event of Default which has
\noccurred and is continuing hereunder or, if any such event has occurred and is
\ncontinuing, specifying the nature and period of existence thereof and what
\naction Tenant has taken or proposes to take with respect thereto and (D) except
\nas otherwise specified in such affidavit, that Tenant has fulfilled all of its
\nobligations under this Lease which are required to be fulfilled on or prior to
\nthe date of such affidavit.<\/p>\n
(c) Landlord, Lender and their respective management, agents,
\naccountants, attorneys, and advisors, shall consider and treat on a strictly
\nconfidential basis Tenant’s “Confidential Information.” “Confidential
\nInformation” as used in this Lease, shall mean all information disclosed by
\nTenant that is not generally known in the Tenant’s trade or industry and shall
\ninclude, without limitation, (a) information relating to the development and
\ndistribution of the current, future and proposed products or services of Tenant
\nor its subsidiaries or affiliates; (b) trade secrets, drawings, inventions, mask
\nworks, know-how, software programs, and software source documents; (c)
\ninformation regarding plans for research, development, new service offerings or
\nproducts, marketing and selling, business plans, business forecasts, budgets and
\nunpublished financial statements, licenses and distribution arrangements, prices
\nand costs, suppliers and customers; (d) existence of any business discussions,
\nnegotiations or agreements between the parties; (e) any information contained in
\nthe books and records of Tenant relating to the foregoing items; (f) any copies
\nof any books and records of Tenant relating to the foregoing items; (g) any
\nfinancial statements of Tenant; and (h) any other information of the Tenant
\nwhich is designated by Tenant as CONFIDENTIAL. All Confidential Information
\nshall be conspicuously stamped “CONFIDENTIAL”; in the case where such
\ninformation cannot reasonably be marked CONFIDENTIAL, for example verbal
\ndisclosures, Tenant shall advise Landlord or Lender at the time of disclosure
\nthat such information is Confidential Information and shall confirm such
\ndesignation in writing within five (5) days of disclosure. Neither Landlord,
\nLender, nor their respective management, agents, accountants, attorneys and
\nadvisors, shall disclose any information contained in Tenant’s books and records
\nnor distribute copies of any such books and records nor Tenant’s financial
\nstatements to any other Persons without the prior consent of the chief operating
\nofficer of Tenant.<\/p>\n
The restrictions contained in this Paragraph 28(c) shall not prevent disclosure
\nby Landlord or Lender of any information in any of the following circumstances:<\/p>\n
(i) Upon the order of any court or administrative
\nagency to the extent required by such order and not effectively stayed or by
\nappeal or otherwise in which case Landlord shall promptly notify Tenant of the
\nrequest for disclosure received by Landlord;<\/p>\n
(ii) Upon the request, demand or requirement of any
\nregulatory agency or authority having jurisdiction over such party, including
\nthe Securities and Exchange Commission (whether or not such request or demand
\nhas the force of law) in which case Landlord shall promptly notify Tenant of the
\nrequest for disclosure received by Landlord;<\/p>\n
32<\/p>\n
(iii) That has been publicly disclosed other than by
\nbreach of this Paragraph 28(c) by Lender or Landlord or by any other Person
\nreferenced in the first sentence of this Paragraph 28(c);<\/p>\n
(iv) To counsel or accountants for Lender or Landlord;<\/p>\n
(v) While an Event of Default exists, in connection
\nwith the exercise of any right or remedy under this Lease or any other related
\ndocument;<\/p>\n
(vi) The information is developed by Landlord or Lender,
\nindependently and without reference to any Confidential Information communicated
\nto Landlord by Tenant, as shown by demonstrable proof;<\/p>\n
(vii) To any Person to whom Initial Lender may disclose
\ninformation under Section 18.1 of the Mortgage who shall be subject to the
\nconfidentiality requirements of this Paragraph 28(c); or<\/p>\n
(viii) As otherwise required by Law.<\/p>\n
All Confidential Information furnished to Landlord by Tenant is the sole and
\nexclusive property of Tenant. Upon request by Tenant, Landlord agrees to
\npromptly deliver to Tenant the original and any copies of such Confidential
\nInformation to Tenant.<\/p>\n
The rights and obligations set forth in this Paragraph 28(c) shall survive
\naccording to the terms hereof and continue after any expiration or termination
\nof this Agreement or the service specified herein. In the event of a breach or
\nthreatened breach by Landlord or Lender of the provisions of this Paragraph
\n28(c), Tenant shall be entitled to an injunction restraining Landlord or Lender
\nfrom disclosing, in whole or in part, any of such Confidential Information.<\/p>\n
29. INTENTIONALLY DELETED.<\/p>\n
30. Non-Recourse as to Landlord and Lender. Anything contained
\n ————————————–
\nherein to the contrary notwithstanding, any claim based on or in respect of any
\nliability of Landlord or Lender under this Lease shall be enforced only against
\nthe Leased Premises and not against any other assets, properties or funds of (i)
\nLandlord or Lender, (ii) any director, officer, member, general partner,
\nshareholder, limited partner, beneficiary, employee or agent of Landlord or
\nLender or any general partner of Landlord or any of its members or general
\npartners (or any legal representative, heir, estate, successor or assign of any
\nthereof), (iii) any predecessor or successor partnership or corporation (or
\nother entity) of Landlord or Lender or any of its general partners,
\nshareholders, officers, directors, members, employees or agents, either directly
\nor through Landlord or Lender or their general partners, shareholders, officers,
\ndirectors, employees or agents or any predecessor or successor partnership or
\ncorporation (or other entity), or (iv) any Person affiliated with any of the
\nforegoing, or any director, officer, employee or agent of any thereof.<\/p>\n
31. Financing.
\n ——— <\/p>\n
(a) Tenant agrees to pay all Costs incurred by Landlord in
\nconnection with the purchase, leasing and initial financing of the Leased
\nPremises including, without limitation, the cost of appraisals, environmental
\nreports, title insurance, surveys, legal fees and expenses and Lender’s
\ncommitment fees.<\/p>\n
(b) If Landlord desires to obtain or refinance any Loan, Tenant
\nshall negotiate in good faith with Landlord concerning any request made by any
\nLender or proposed <\/p>\n
33<\/p>\n
Lender for changes or modifications in this Lease. In particular, Tenant shall
\nagree, upon request of Landlord, to supply any such Lender with such notices and
\ninformation as Tenant is required to give to Landlord hereunder and to extend
\nthe rights of Landlord hereunder to any such Lender and to acknowledge such
\nfinancing and the assignment of this Lease to Lender if such acknowledgment is
\nrequested by such Lender.<\/p>\n
32. Subordination, Non-Disturbance and Attornment. This Lease
\n ———————————————
\nshall be subject and subordinate to any Mortgage which is hereafter executed or
\nrecorded securing a Loan, provided, however, such subordination shall only be
\neffective if the Lender agrees in a written subordination of substantially the
\nsame substance as the document attached hereto as Exhibit “F”, with such non-
\n ———–
\nmaterial changes as the Landlord may reasonably request, that so long as there
\nexists no outstanding Event of Default at the time the Mortgage terminates by
\nforeclosure or otherwise: (i) this Lease shall survive such termination; (ii)
\nthe Lender or any purchaser acquires Landlord’s interest under this Lease
\npursuant to or in lieu of proceedings for enforcement of any Mortgage, the
\nLender or any purchaser shall assume all of Landlord’s obligations hereunder
\narising during the period commencing on the date of such acquisition and ending
\non the date such interest is conveyed or transferred to a subsequent party that
\nassumes the obligations of Landlord hereunder arising during the period such
\nparty so holds Landlord’s interest, subject in all events to the terms of
\nParagraph 30 of this Lease. Provided the conditions of the preceding sentence
\nare satisfied, Tenant covenants and agrees to execute and deliver, upon request
\nby Landlord, the subordination described above, and any additional documents
\nevidencing the subordination of this Lease with respect to any such Mortgage
\nreasonably required by the Lender and the agreement of Tenant to attorn to the
\nLender or any such purchaser.<\/p>\n
33. INTENTIONALLY DELETED.
\n ——————— <\/p>\n
34. Tax Treatment; Reporting. Landlord and Tenant each acknowledge
\n ————————
\nthat each shall treat this transaction as a true lease for state law purposes
\nand shall report this transaction as a Lease for Federal income tax purposes.
\nFor Federal income tax purposes each shall report this Lease as a true lease
\nwith Landlord as the owner of the Leased Premises and Equipment and Tenant as
\nthe lessee of such Leased Premises and Equipment including: (1) treating
\nLandlord as the owner of the property eligible to claim depreciation deductions
\nunder Section 167 or 168 of the Internal Revenue Code of 1986 (the “Code”) with
\n —-
\nrespect to the Leased Premises and Equipment, (2) Tenant reporting its Rent
\npayments as rent expense under Section 162 of the Code, and (3) Landlord
\nreporting the Rent payments as rental income.<\/p>\n
35. Excess Land.
\n ———– <\/p>\n
(a) Landlord acknowledges that the Excess Land is not necessary
\nfor Tenant’s current and contemplated use of the Leased Premises. Landlord
\nshall, upon not less than thirty (30) days prior written notice to Landlord and
\nLender, convey the Excess Land to or as directed by Tenant for no consideration
\n(other than having entered into this Lease with Tenant); provided, that no
\n ——–
\nEvent of Default under this Lease or under the documents evidencing and securing
\nthe Loan exists and the following conditions are satisfied: (i) the Leased
\nPremises shall have been subdivided in compliance with all applicable
\nsubdivision laws, Legal Requirements and Easement Agreements so that the Excess
\nLand and the remainder of the Leased Premises (the “Retained Premises”) are
\n —————–
\nseparate tracts, (ii) after such sale both the Excess Land and the Retained
\nPremises shall comply with all applicable Laws, Legal Requirements and Easement
\nAgreements, (iii) the release of the Excess Land does not materially impact the
\nfunctional use, legal use or viability of the Retained Premises, (iv) Tenant
\nshall have complied with all requirements of Lender set forth in the Mortgage
\nwith respect to the release of the Excess Land, and (v) all Costs of Landlord,
\nLender and Tenant in connection with the conveyance of the Excess Land and in
\ncomplying with the above conditions, including reasonable attorneys’ fees, <\/p>\n
34<\/p>\n
shall be borne solely by Tenant. Landlord, as record title holder to the Excess
\nLand, shall cooperate with Tenant in obtaining a lawful subdivision of the
\nLeased Premises with separate parcels consisting of the Excess Land and the
\nRetained Premises, at no cost to Landlord. If Landlord conveys the Excess Land,
\nthen, except for Surviving Obligations this Lease shall terminate with respect
\nto the Excess Land, but shall remain in full force and effect with respect to
\nthe Retained Premises, provided, however, that in no event will the release of
\nthe Excess Land from this Lease amend, reduce or modify any of the obligations
\nand liabilities of Tenant hereunder, including the obligations to pay Basic Rent
\nin the amount set forth in Exhibit “D” hereto.
\n ———-<\/p>\n
(b) In the event at any time during the term Tenant determines
\nto construct or cause to be constructed improvements on the Excess Land, Tenant
\nshall so notify Landlord, and Landlord and Tenant shall negotiate in good faith
\nfor Landlord to purchase the Excess Land from Tenant, construct such
\nimprovements and lease the same to Tenant.<\/p>\n
36. Financing Major Alterations.
\n ————————— <\/p>\n
(a) Should Tenant, during the Term of this Lease, desire to
\nmake Alterations to any of the Leased Premises which are not readily removable
\nwithout causing material damage to the Leased Premises or to expand the
\nImprovements and which will cost in excess of $500,000 (“Major Alterations”),
\n —————–
\nTenant may, prior to the commencement of construction of such Major Alterations,
\nrequest Landlord to reimburse the costs thereof (the “Alteration Cost”) to
\n —————
\nTenant, to wit: cost of labor and materials, financing fees, legal fees,
\n ——
\nsurvey, title insurance and other normal and customary loan or construction
\ncosts.<\/p>\n
(b) Should Landlord agree to reimburse such costs, Landlord and
\nTenant shall enter into good faith negotiations regarding the execution and
\ndelivery of a written agreement of modification of this Lease, which agreement
\nshall provide for the following:<\/p>\n
(i) payment by Landlord to Tenant of the Alteration
\nCost within one hundred twenty (120) days of the date of Landlord’s agreement to
\npay the Alteration Cost, or in installment payments as agreed, or on the date of
\ncompletion of the Major Alterations, whichever shall be the later;<\/p>\n
(ii) an increase in the annual Basic Rent payable during
\nthe Amortization Period (as hereinafter defined) to an amount sufficient to
\namortize the Alteration Cost (“Total Financing”) over a period (the
\n —————
\n“Amortization Period”) which shall be the remainder of the then current Term
\n ——————-
\nand, if Tenant so elects, any additional extension periods provided for herein
\n(so long as Tenant shall confirm any such extension periods included in the
\nAmortization Period by a written waiver of its right to give notice of its
\nintention not to renew this Lease prior to the expiration of such extension
\nperiods), at such rate of interest and upon such other terms as shall be agreed
\nupon between Landlord and Tenant, but which shall be no less favorable than the
\nprevailing interest rate and terms for first unsecured loans in a principal
\namount equal to the Total Financing for borrowers with credit ratings equivalent
\nto that of Tenant’s at that time;<\/p>\n
(iii) provide a rate of return to Landlord on Landlord’s
\nequity investment in the Leased Premises equal to that enjoyed by Landlord
\nhereunder immediately prior to such proposed increase in Basic Rent; and<\/p>\n
(iv) such other changes and amendments to this Lease as
\nmay be necessary and appropriate in view of such payment of the Alteration Cost
\nby Landlord to Tenant.<\/p>\n
35<\/p>\n
(c) Tenant shall pay all Costs incurred by Landlord in
\nconnection with any such modification to this Lease and such financing,
\nincluding closing costs, brokerage fees, taxes, recording charges and reasonable
\nlegal fees and expenses.<\/p>\n
(d) To the extent that the terms of the Mortgage or any other
\ndocument encumbering any of the Leased Premises shall require the consent of
\nLender and\/or the holder or holders of any encumbrance on any of the Leased
\nPremises (the “Encumbrancers”) to the addition or construction of any Major
\n ————-
\nAlterations or to the financing thereof by Landlord, the rights and obligations
\nof Landlord and Tenant under Paragraph 13 and this Paragraph 36 are expressly
\nconditioned upon Tenant’s obtaining, prior to the commencement of any
\nconstruction, the Encumbrancers’ written consent to such construction and to
\nLandlord’s obtaining, in the event Landlord has agreed to pay for the Major
\nAlterations, the Encumbrancers’ written consent to such financing.<\/p>\n
(e) If Landlord and Tenant do not reach agreement on Tenant’s
\nrequest to have Landlord finance the Alteration Costs, Tenant shall, subject to
\nthe provisions of Paragraph 13 of this Lease, have the right to construct the
\nMajor Alterations at Tenant’s sole cost and expense. In any event, the
\nconstruction of the Major Alterations shall be performed in accordance with the
\nprovisions of Paragraph 13 hereof and the Major Alterations shall be the
\nproperty of Landlord and part of the Leased Premises subject to this Lease.<\/p>\n
(f) Nothing contained in this Paragraph 36 shall be construed
\nto modify Paragraph 13 hereof, and the provisions of Paragraph 12 and
\nsubparagraphs (i) and (ii) of Paragraph 13(a) shall apply to all Major
\nAlterations made or constructed hereunder, including the requirement for
\nLandlord’s consent to Alterations.<\/p>\n
37. Security Deposit.
\n —————- <\/p>\n
(a) Concurrently with the execution of this Lease, Tenant has
\ndelivered to Landlord cash in the amount of Ten Million Dollars ($10,000,000)
\n(the “Security Deposit”) which shall be deposited in a segregated interest-
\n —————-
\nbearing account (the “Account”) with a financial institution or institutions
\n ——-
\nselected by Lender or Landlord. The Security Deposit shall secure the payment by
\nTenant of the Rent and all other charges or payments to be paid hereunder and
\nthe performance of the covenants and obligations contained herein.<\/p>\n
(b) If at any time an Event of Default shall have occurred and
\nbe continuing beyond the applicable grace period, if any, Landlord shall be
\nentitled, at its sole discretion, at any time and from time to time, to withdraw
\nthe Security Deposit or any portion thereof from the Account and to apply the
\nproceeds in payment of (i) any Rent or other charges for the payment of which
\nTenant shall be in default, (ii) any expense incurred by Landlord in curing any
\ndefault of Tenant, (iii) any other sums due to Landlord in connection with any
\ndefault or the curing thereof, including, without limitation, any damages
\nincurred by Landlord by reason of such default, including maintenance expenses
\nand management fees and\/or (iv) the payment of leasing commissions and tenant
\nimprovements for any substitute tenant. If any portion of the Security Deposit
\nis used, retained or applied by Landlord for any purpose set forth above, Tenant
\nshall, within fifteen (15) days after demand therefor is made by Landlord,
\nprovide to Landlord cash which complies with the requirements of this Paragraph
\n37 so that the Security Deposit is in the original principal amount thereof.
\nLandlord shall deliver to Tenant copies of all statements regarding the
\naccount(s) in which the Security Deposit is held promptly after receipt thereof
\nby Landlord.<\/p>\n
(c) So long as no Event of Default exists, at any time
\nfollowing the later to occur of payment in full of the Initial Loan or the
\nexpiration of the tenth (10th) Lease Year, the balance of the Security Deposit
\nshall be returned to Tenant upon the earlier to occur of:<\/p>\n
36<\/p>\n
(i) the expiration of the Term or<\/p>\n
(ii) no later than fifteen (15) days after the date on
\nwhich Tenant receives a rating (“Required Rating”)on its publicly-traded
\nunsecured senior debt of Baa3 or better from Moody’s, provided that at the time
\nof such rating Tenant has a rating from S&P of not less than BB+.<\/p>\n
(d) Notwithstanding the foregoing, if at any time or from time
\nto time following the release of the Security Deposit pursuant to Subsection
\n(ii) of this Paragraph 37(c) (A) Tenant’s publicly-traded unsecured debt rating
\nshall be downgraded to Ba1 or Ba2 from Moody’s, and is BB or BB+ from S&P,
\nTenant shall redeposit with Landlord a security deposit in the amount of Five
\nMillion Dollars ($5,000,000) or (B) if such debt rating from Moody’s shall be
\nless than Ba2 and from S&P shall be less than BB, Tenant shall redeposit with
\nLandlord Ten Million Dollars ($10,000,000) (or if the deposit described in
\nclause (A) has been made, Five Million Dollars $5,000,000). Any such amounts
\nshall be deposited within fifteen (15) days following the downgrade of Tenant’s
\nrating and any amounts so deposited shall be considered the “Security Deposit”
\nfor the purposes of this Lease and shall thereafter be subject to the applicable
\nprovisions of this Lease, including this subparagraph (c).<\/p>\n
(e) At the request of Tenant (so long as no Event of Default
\nexists) the Security Deposit shall be invested in:<\/p>\n
(i) securities issued or fully guaranteed or insured by
\nthe United States Government or any agency thereof having maturities of not more
\nthan 12 months from the date of acquisition;<\/p>\n
(ii) certificates of deposit, time deposits, Eurodollar
\ntime deposits, repurchase agreements, reverse repurchase agreements, or bankers’
\nacceptances, having in each case a tenor of not more than 12 months, issued by
\nany Bank, or by any U.S. commercial bank or any branch or agency of a non-U.S.
\nbank licensed to conduct business in the U.S. having combined capital and
\nsurplus of not less than $100,000,000 and whose short-term securities are rated
\nat least A-1 by S&P or at least P-1 by Moody’s;<\/p>\n
(iii) taxable and tax-exempt commercial paper of an
\nissuer rated at least A-1 by S&P or at least P-1 by Moody’s and in either case
\nhaving a tenor of not more than 270 days;<\/p>\n
(iv) medium term notes of an issuer rated at least AA by
\nS&P or at lease Aa2 by Moody’s and having a remaining term of not more than 12
\nmonths after the date of acquisition by the Company or its Subsidiaries;<\/p>\n
(v) municipal notes and bonds which are rated at least
\nSP-1 or AA by S&P or at least MIG-2 or Aa by Moody’s with tenors of not more
\nthan 12 months;<\/p>\n
(vi) investments in taxable or tax-exempt money market
\nfunds with assets greater than $500,000,000 and whose assets have average
\nmaturities less than or equal to 180 days and are rated at least A-1 by S&P or
\nat least P-1 by Moody’s;<\/p>\n
(vii) money market preferred instruments of an issuer
\nrated at least A-1 by S&P or at least P-1 by Moody’s with tenors of not more
\nthan 12 months; or<\/p>\n
(viii) such other comparable investments as may be
\nrequested by Tenant and approved by Landlord and Lender, such approval not to be
\nunreasonably withheld.<\/p>\n
37<\/p>\n
(f) As long as no Event of Default exists, all interest accrued
\non the Security Deposit shall be paid to Tenant as and when such interest is
\nreceived from the investment of the Security Deposit, but in no event more than
\nonce per calendar quarter.<\/p>\n
(g) Landlord shall have the right to designate Lender as the
\nholder of the Security Deposit during the term of the applicable Loan in which
\nevent Lender shall have all of the rights of Landlord under this Paragraph 37.
\nTenant covenants and agrees to execute such agreements, consents and
\nacknowledgments as may reasonably be requested by Landlord from time to time to
\nchange the holder of the Security Deposit as hereinabove provided.<\/p>\n
38. Right of First Refusal.
\n ———————- <\/p>\n
(a) Except as otherwise provided in clause (h) of this
\nParagraph 38, and provided an Event of Default does not then exist, if Landlord
\nshall enter into a bona fide, arms-length contract for the sale (the “Sale
\n —-
\nContract”) of the Leased Premises with a Third Party Purchaser (which Sale
\n———
\nContract may include other property owned by Landlord so long as a specific
\npurchase price is allocated to the Leased Premises), such Sale Contract must be
\nconditioned upon Tenant’s failure to exercise its right under this Paragraph 38,
\nLandlord shall give written notice to Tenant of the Sale Contract, together with
\na copy of the executed Sale Contract and the name and business address of the
\nThird Party Purchaser.<\/p>\n
(b) For a period of thirty (30) days following receipt of such
\nnotice, Tenant shall have the right, exercisable by written notice to Landlord
\ngiven within said thirty (30) day period, to elect to purchase the Leased
\nPremises at the purchase price (calculated on a comparable after-tax basis with
\nrespect to capital gains, including depreciation and in cash) and upon all the
\nterms and conditions set forth in such Sale Contract except that no
\ncontingencies contained in such Sale Contract as to environmental assessments,
\nengineering studies, inspection of the Leased Premises, availability of
\nfinancing, sale of other property, state of the title to or encumbrances on the
\nLeased Premises, or any other condition or contingency to the Third Party
\nPurchaser’s obligation to purchase the Leased Premises which pertains to the
\ncondition of the Leased Premises, the Third Party Purchaser’s ability to take
\ncertain action or any other factor beyond the control of Landlord, shall apply
\nto Tenant’s obligation to purchase the Leased Premises under this Paragraph 38,
\nand Tenant shall be obligated to purchase the Leased Premises without any such
\ncondition or contingency.<\/p>\n
(c) If at the expiration of the aforesaid thirty (30) day
\nperiod Tenant shall have failed to exercise the aforesaid right of first
\nrefusal, Landlord may sell the Leased Premises to such Third Party Purchaser
\nupon the terms set forth in such contract.<\/p>\n
(d) Except as otherwise specifically provided herein, the
\nclosing date for any purchase of the Leased Premises by Tenant pursuant to this
\nParagraph 38 shall be the earlier to occur of (i) ninety (90) days after the
\ndate of Tenant’s notice to Landlord of its intention to purchase the Leased
\nPremises upon the terms of a Sale Contract with a Third Party Purchaser and (ii)
\nthe closing date provided in such Sale Contract. At such closing Landlord shall
\nconvey the Leased Premises to Tenant in accordance with, and Tenant shall pay to
\nLandlord the purchase price and other consideration set forth in, the applicable
\ncontract.<\/p>\n
(e) Tenant shall have the right during the Term to exercise the
\nforegoing right of first refusal upon (i) each proposed sale of the Leased
\nPremises prior to the tenth (10th) anniversary of the date of this Lease and
\n(ii) one (1) time during the period commencing with the tenth (10th) anniversary
\nof the date of this Lease and ending with the last day of the Term; provided,
\nthat if, following compliance with the procedure described in Paragraph 38(b), a
\nThird Party Purchaser does not purchase the Leased Premises, such event shall
\nnot count as an exercise of Tenant’s right of first refusal.<\/p>\n
38<\/p>\n
(f) NOTWITHSTANDING ANYTHING TO THE CONTRARY, SUCH RIGHT SHALL
\nTERMINATE AND BE NULL AND VOID AND OF NO FURTHER FORCE AND EFFECT IF (1) TENANT
\nFAILS TO EXERCISE THE RIGHT OF FIRST REFUSAL GRANTED PURSUANT TO THIS PARAGRAPH
\n38(e)(ii), AND THE SALE TO THE THIRD PARTY PURCHASER IS CONSUMMATED OR IF (2)
\nTHIS LEASE TERMINATES OR THE TERM EXPIRES OR (3) IF THE LEASED PREMISES ARE SOLD
\nOR TRANSFERRED PURSUANT TO THE EXERCISE OF A PRIVATE POWER OF SALE OR JUDICIAL
\nFORECLOSURE OR ACCEPTANCE OF A DEED IN LIEU THEREOF. IN SUCH EVENT TENANT SHALL
\nEXECUTE A QUITCLAIM DEED AND SUCH OTHER DOCUMENTS AS LANDLORD SHALL REASONABLY
\nREQUEST EVIDENCING THE TERMINATION OF ITS RIGHT OF FIRST REFUSAL.<\/p>\n
(g) If Tenant does not exercise its right of first refusal to
\npurchase the Leased Premises and the Leased Premises are transferred to a Third
\nParty Purchaser, Tenant will attorn to any Third Party Purchaser as Landlord so
\nlong as such Third Party Purchaser and Landlord notify Tenant in writing of such
\ntransfer. At the request of Landlord, Tenant will execute such documents
\nconfirming the agreement referred to above and such other agreements as Landlord
\nmay reasonably request, provided that such agreements do not increase the
\nliabilities and obligations of Tenant hereunder.<\/p>\n
(h) The provisions of this Paragraph 38 shall not apply to or
\nprohibit (i) any mortgaging, subjection to deed of trust or other hypothecation
\nof Landlord’s interest in the Leased Premises, (ii) any sale of the Leased
\nPremises pursuant to a private power of sale under or judicial foreclosure of
\nany Mortgage or other security instrument or device to which Landlord’s interest
\nin the Leased Premises is now or heareafter subject, (iii) any transfer of
\nLandlord’s interest in the Leased Premises to a Lender, beneficiary under deed
\nof trust or other holder of a security interest therein or their designees by
\ndeed in lieu of foreclosure; (iv) any transfer of the Leased Premises to any
\ngovernmental or quasi-governmental agency with power of condemnation, (v) any
\ntransfer of the Leased Premises to any affiliate of Landlord, Carey
\nInstitutional Properties Incorporated (“CIP”) , Corporate Property Associates 12
\nIncorporated (“CPA12”), Corporate Property Associates 14 Incorporated (“CPA14”)
\nor to any entity for whom W.P. Carey & Co., Inc., Carey Diversified LLC or any
\nof their affiliates provides management or advisory services or investment
\nadvice, (vi) any transfers of interests in Landlord by any member to any other
\nmember, (vii) any Person to whom any one or more of CIP, CPA12 and\/or CPA14
\nsells all or substantially all of its assets, or (viii) any transfer of the
\nLeased Premises to any of the successors or assigns of any of the Persons
\nreferred to in the foregoing clauses (i) through (iv).<\/p>\n
39. Miscellaneous.
\n ————- <\/p>\n
(a) The paragraph headings in this Lease are used only for
\nconvenience in finding the subject matters and are not part of this Lease or to
\nbe used in determining the intent of the parties or otherwise interpreting this
\nLease.<\/p>\n
(b) As used in this Lease, the singular shall include the
\nplural and any gender shall include all genders as the context requires and the
\nfollowing words and phrases shall have the following meanings: (i) “including”
\nshall mean “including without limitation”; (ii) “provisions” shall mean
\n“provisions, terms, agreements, covenants and\/or conditions”; (iii) “lien” shall
\nmean “lien, charge, encumbrance, title retention agreement, pledge, security
\ninterest, mortgage and\/or deed of trust”; (iv) “obligation” shall mean
\n“obligation, duty, agreement, liability, covenant and\/or condition”; (v) “any of
\nthe Leased Premises” shall mean “the Leased Premises or any part thereof or
\ninterest therein”; (vi) “any of the Land” shall mean “the Land or any part
\nthereof or interest therein”; (vii) “any of the Improvements” shall mean “the
\nImprovements or any part thereof or interest therein”; (viii) “any of the
\nEquipment” shall mean <\/p>\n
39<\/p>\n
“the Equipment or any part thereof or interest therein”; and (ix) “any of the
\nAdjoining Property” shall mean “the Adjoining Property or any part thereof or
\ninterest therein”.<\/p>\n
(c) Any act which Landlord is permitted to perform under this
\nLease may be performed at any reasonable time and from time to time upon prior
\nwritten notice to Tenant (except in the event of an emergency in which case no
\nnotice shall be required) by Landlord or any person or entity designated by
\nLandlord. Each appointment of Landlord as attorney-in-fact for Tenant hereunder
\nis irrevocable and coupled with an interest. Time is of the essence with respect
\nto the performance by each party of their respective obligations under this
\nLease.<\/p>\n
(d) Landlord shall in no event be construed for any purpose to
\nbe a partner, joint venturer or associate of Tenant or of any subtenant,
\noperator, concessionaire or licensee of Tenant with respect to any of the Leased
\nPremises or otherwise in the conduct of their respective businesses.<\/p>\n
(e) This Lease and any documents which may be executed by
\nTenant on or about the effective date hereof at Landlord’s request constitute
\nthe entire agreement between the parties and supersede all prior understandings
\nand agreements, whether written or oral, between the parties hereto relating to
\nthe Leased Premises and the transactions provided for herein. Landlord and
\nTenant are business entities having substantial experience with the subject
\nmatter of this Lease and have each fully participated in the negotiation and
\ndrafting of this Lease. Accordingly, this Lease shall be construed without
\nregard to the rule that ambiguities in a document are to be construed against
\nthe drafter.<\/p>\n
(f) This Lease may be modified, amended, discharged or waived
\nonly by an agreement in writing signed by the party against whom enforcement of
\nany such modification, amendment, discharge or waiver is sought.<\/p>\n
(g) The covenants of this Lease shall run with the land and
\nbind Tenant, its successors and assigns and all present and subsequent
\nencumbrancers and subtenants of any of the Leased Premises, and shall inure to
\nthe benefit of Landlord, its successors and assigns. If there is more than one
\nTenant, the obligations of each shall be joint and several.<\/p>\n
(h) If any one or more of the provisions contained in this
\nLease shall for any reason be held to be invalid, illegal or unenforceable in
\nany respect, such invalidity, illegality or unenforceability shall not affect
\nany other provision of this Lease, but this Lease shall be construed as if such
\ninvalid, illegal or unenforceable provision had never been contained herein.<\/p>\n
(i) This Lease shall be governed by and construed and enforced
\nin accordance with the Laws of the State.<\/p>\n
(j) In the event that either Landlord or Tenant is delayed,
\ninterrupted or prevented, despite it best efforts, from performing any of its
\nobligations under this Lease (excluding any obligation to make any payment
\nrequired hereunder), and such delay, interruption or prevention is due to fire
\nor other casualty, acts of God, governmental act, embargo, strike or labor
\ndispute, unavailability of materials, or any other cause outside the reasonable
\ncontrol of such party (financial inability, unavailability of sources of
\nfinancing, or changes in market conditions excepted), then the time for
\nperformance of the affected obligations of Landlord or Tenant, as the case may
\nbe, shall be extended for a period equivalent to the period of such delay,
\ninterruption or prevention.<\/p>\n
40<\/p>\n
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
\nduly executed as of the day and year first above written.<\/p>\n
LANDLORD:<\/p>\n
DELAWARE CHIP LLC, a Delaware limited
\n liability company<\/p>\n
By: \/s\/ W. Sean Sovak
\n —————————————<\/p>\n
Title: First Vice President
\n ————————————<\/p>\n
TENANT:<\/p>\n
ADVANCED MICRO DEVICES, INC.,
\n a Delaware corporation<\/p>\n
By: \/s\/ R. Previte
\n —————————————<\/p>\n
Title: President & Chief Operating Officer
\n ————————————<\/p>\n
41<\/p>\n
EXHIBIT A<\/p>\n
PREMISES<\/p>\n
EXHIBIT “A”
\n ———–<\/p>\n
LEGAL DESCRIPTION<\/p>\n
REAL PROPERTY in the City of Sunnyvale, County of Santa Clara, State of
\nCalifornia, described as follows:<\/p>\n
Parcel A, as shown upon that Parcel Map recorded February 26, 1975 in Book 352
\nof Maps, pages 54 and 55, Santa Clara County Records.<\/p>\n
APN: 205-22-020 & 021
\nARB: 206-60-12, 13, 14, 15, 18, 35, 42, 52, 53 and 57<\/p>\n
Exhibit A-2<\/p>\n
[This exhibit consists of a map of Parcel 1 and Parcel 2.] <\/p>\n
EXHIBIT B<\/p>\n
MACHINERY AND EQUIPMENT<\/p>\n
All fixtures, machinery, apparatus, equipment, fittings and appliances of every
\nkind and nature whatsoever now or hereafter affixed or attached to or installed
\nin any of the Leased Premises (except as hereafter provided), including all
\nelectrical, anti-pollution, heating, lighting (including hanging fluorescent
\nlighting), incinerating, power, air cooling, air conditioning, humidification,
\nsprinkling, plumbing, lifting, cleaning, fire prevention, fire extinguishing and
\nventilating systems, devices and machinery and all engines, pipes, pumps, tanks
\n(including exchange tanks and fuel storage tanks), motors, conduits, ducts,
\nsteam circulation coils, blowers, steam lines, compressors, oil burners,
\nboilers, doors, windows, loading platforms, lavatory facilities, stairwells,
\nfencing (including cyclone fencing), passenger and freight elevators, overhead
\ncranes and garage units, together with all additions thereto, substitutions
\ntherefor and replacements thereof required or permitted by this Lease; but
\nexcluding all personal property and all trade fixtures, machinery, office,
\nmanufacturing and warehouse equipment which are not necessary to the operation,
\nas buildings, of the buildings which constitute part of the Leased Premises,
\nincluding, without limitation, the following items of personal property of
\nTenant:<\/p>\n
1. audio\/visual equipment;<\/p>\n
2. artwork; and<\/p>\n
3. furniture and furniture systems.<\/p>\n
EXHIBIT C
\n ———<\/p>\n
Site Access Agreement.<\/p>\n
An easement as follows as shown on the Map of Tract 2421, filed July 15, 1959 in
\nBook 108 of Maps, page 53, Santa Clara County Records, being the same as shown
\non the survey
\nFor: Public Utilities, Storm Drainage and Sanitary Sewer Easement
\nAffects: The Southeasterly 10 feet of Lots 32 and 33 as shown on the Map
\n above referred to and as said 10 foot strip is shown on the Parcel
\n Map herein referred to and being the same as shown on the survey.<\/p>\n
An easement as follows as shown on the Map of Tract 2421, filed July 15, 1959 in
\nBook 108 of Maps, page 53, Santa Clara County Records, being the same as shown
\non the survey.
\nFor: Public Utilities
\nAffects: Southerly 1 foot of Westerly 25 feet of Lot 29 and Northerly 1 foot
\n of Easterly 25 feet of Westerly 215 feet of Lot 27 as shown on the
\n Map above referred to and as said easement is shown on the Parcel
\n Map herein referred to and being the same as shown on the survey.<\/p>\n
A portion of public utilities easement dedicated on the Map of Tract 2421 has
\nbeen vacated by Resolution No. 4734 of the City of Sunnyvale, recorded
\nSeptember 21, 1961 in Book 5304, page 288 of Official Records. The above
\ndescribed portion of the easement was reserved in said resolution.<\/p>\n
An easement as follows as shown on the Map of Tract 2726, filed June 13, 1960
\nin Book 121 of Maps, page 45, Santa Clara County Records, being the same as
\nshown on the survey.
\nFor: Public Utilities
\nAffects: Westerly 5 feet of Lot 5 as shown on the Map above referred to and
\n as said easement is shown on the Parcel Map referred to herein and
\n being the same as shown on the survey.<\/p>\n
An easement as follows as shown on the Map of Tract 2726, filed June 13, 1960
\nin Book 121 of Maps, page 45, Santa Clara County Records, being the same as
\nshown on the survey.
\nFor: Wire Clearance
\nAffects: Easterly 5 feet of Westerly 5 feet of Lot 5 as shown on the Map
\n above referred to and as said easement is shown on the Parcel Map
\n referred to herein and being the same as shown on the survey.<\/p>\n
EASEMENT for the purposes stated herein and incidents thereto, being the same
\nas shown on the survey.
\nPurpose: Single line of poles with such wires and cables as second parties
\n may suspend therefrom and all necessary and proper guys, anchors,
\n crossarms and braces and other features for transmitting and
\n distributing by Pacific Gas or electric energy and for rendering by
\n Pacific Telephone of communication services respectively, together
\n with a right-of-way therefor
\nGranted to: Pacific Gas and Electric Company and The Pacific Telephone and
\n Telegraph Company, a California corporation.
\nRecorded: July 24, 1962 in Book 5657, page 336, Official Records
\nAffects: As follows:<\/p>\n
The certain parcel of land described in that certain deed executed by George
\nLand, et ux to Ben Ginden, et ux, recorded February 15, 1962 in Volume 5468 of
\nOfficial Records, at page 497, records of said County of Santa Clara.<\/p>\n
The route of said line of poles across said premises shall be as follows, viz:<\/p>\n
1. Within a strip of land of the uniform width of 5.0 feet, extending entirely
\nacross said premises and lying contiguous to and Southeasterly of the
\nNorthwesterly boundary line of said premises.<\/p>\n
EASEMENT as shown on that Parcel Map recorded February 26, 1975 in Book 351 of
\nMaps, page 54 and 55, Santa Clara County Records.<\/p>\n
For : Public utilities, wire clearance, storm drainage, sanitary
\n sewer, building height and anchor purposes
\nAffects : A portion of sale land as shown on the survey<\/p>\n
EASEMENT for the purposes stated herein and incidents thereto being the same as
\nshown on the survey<\/p>\n
Purpose : The right from time to time to construct, install, inspect,
\n maintain, replace, remove, and use facilities, together with a
\n right-of-way thereof, and also ingress thereto and egress
\n therefrom
\nGranted to : Pacific Gas and Electric Company, a California corporation
\nRecorded : September 26, 1977 in Book D 164, page 465, Official Records
\nAffects : All of said Land as to ingress and egress; and a strip or
\n parcel of land or along a route as hereinafter set forth as to
\n the facilities:<\/p>\n
1. Beginning at the found 3\/4 inch iron pipe accepted as marking the Southeast
\ncorner of said lands and running thence, Westerly along the Southerly boundary
\nline of said lands.<\/p>\n
(1) South 88″ 13′ West 731.51 feet to the found 3\/4 inch iron pipe accepted as
\nmarking the Southwest corner of said lands: thence leaving said Southerly
\nboundary line of said lands and running Northerly along the Westerly boundary
\nline of said lands.<\/p>\n
(2) North 1″ 47′ West 351.15 feet to the found 3\/4 inch iron pipe accepted as
\nmarking the point of intersection of said Westerly boundary line of said lands
\nwith the Southerly boundary line of the City Street known as De Guigne Drive;
\nthence leaving said Westerly boundary line of said lands and running Easterly
\nand along said Southerly boundary line of said De Guigne Drive.<\/p>\n
(3) On a curve to the left with a radius of 33.00 feet through a central angle
\nof 17″ 38′ 23″ and tangent at the Westerly terminus thereof to a line which has
\na bearing of North 88″ 13′ East, an arc distance of 10.16 feet; thence leaving
\nsaid Southerly boundary line of said De Guigne Drive and running.<\/p>\n
(4) South 1″ 47′ East 342.70 feet; thence<\/p>\n
(5) North 88″ 13′ East 724.49 feet to a point in the Easterly boundary line of
\nsaid lands; thence Southerly along said Easterly boundary line of said lands.<\/p>\n
(6) South 14″ 48′ West 10 feet, more or less, to the point of beginning.<\/p>\n
And being the same as shown on the survey<\/p>\n
EASEMENT for the purposes stated herein and incidents thereto
\nPurpose : Public Utilities
\nGranted to : City of Sunnyvale, a municipal corporation
\nRecorded : June 13, 1978 in Book D738, page 165, Official Records
\nAffects : As follows:<\/p>\n
Commencing at the point of intersection of the centerline of Lawrence
\nExpressway, a 67.01 foot half street, with the centerline of East Duane Avenue,
\n86 feet wide, as shown on that certain Parcel Map for the lands of Western
\nElectric Company records in Book 351 of Maps, page 54 and 55, Santa Clara County
\nRecords: thence South 88″ 44′ 39″ West along said centerline of East Duane
\nAvenue and its Westerly prolongation, 561.01 feet; thence South 0″ 03′ 31″ East
\n53.84 feet; thence South 89″ 56′ 29″ West, 33.00 feet to a point in the Westerly
\nline of San Xavier Avenue; thence along the arc of a tangent curve to the left
\nhaving a radius of 150.00 feet, through a central angle of 0″ 17′ 00″, a
\ndistance of 0.74 feet to the true point of beginning; thence from a tangent
\nbearing of North 0″ 20′ 31″ West, along the arc of a compound curve to the left
\nhaving a radius of 19.00 feet through a central angle of 91″ 11′ 50″ a distance
\nof 30.24 feet; thence North 1″ 15′ 21″ West, 7.00 feet; thence South 88″ 44′ 39″
\nWest 63.96 feet; thence North 1″ 15′ 21″ West 26.00 feet to a point in said
\nWesterly prolongation of East Duane Avenue, thence North 88″ 44′ 39″ East along
\nsaid prolongation 25.33 feet; thence North 1″ 15′ 21″ West 33.00 feet; thence
\nfrom a tangent bearing of North 88″ 44′ 39″ East, along the arc of a curve to
\nthe left having a radius of 19.00 feet, through a central angle of 120″ 01′ 00″,
\na distance of 39.80 feet to a point of tangency on the Southwesterly line of
\nsaid East Duane Avenue; thence South 31″ 16′ 21″ East along said Southeasterly
\nline 42.12 feet; thence along the arc of a tangent curve to the right having a
\nradius of 150.00 feet, through a central angle of 30″ 55′ 50″, a distance of
\n80.98 feet to the true point of beginning.<\/p>\n
And being the same as shown on the survey.<\/p>\n
UNRECORDED LEASE for the term and upon the terms and conditions contained
\ntherein
\nDated : As of December 22, 1998
\nLessor : Delaware Chip LLC, a Delaware limited liability company
\nLessee : Advanced Micro Devices, Inc., a Delaware corporation
\nDisclosed by : Memorandum of Lease, recorded December ____, 1998 as
\n Instrument No. ______________ Official Records.<\/p>\n
A DEED OF TRUST to secure an indebtedness in the original principal sum shown
\nbelow and any other amounts and\/or obligations secured thereby
\nAmount : $68,250,000.00
\nDated : December ____, 1998
\nTrustor : Delaware Chip LLC, a Delaware limited liability company
\nTrustee : First American Title Insurance Company
\nBeneficiary : GMAC Commercial Mortgage Corporation, a California
\n corporation
\nAddress :
\nRecorded : December ____, 1998, as Instrument No. _________ Official
\n Records.<\/p>\n
EXHIBIT D<\/p>\n
BASIC RENT PAYMENTS<\/p>\n
1. Basic Rent. Subject to the adjustments provided for in
\n ———-
\nParagraphs 2, 3 and 4 below, Basic Rent payable in respect of the Term shall be
\n$9,145,500 per annum, payable monthly in advance on each Basic Rent Payment
\nDate, in equal installments of $762,125 each.<\/p>\n
2. CPI Adjustments to Basic Rent. The Basic Rent shall be subject
\n —————————–
\nto adjustment, in the manner hereinafter set forth, for increases in the index
\nknown as United States Department of Labor, Bureau of Labor Statistics, Consumer
\nPrice Index, All Urban Consumers, United States City Average, All Items, (1982-
\n84=100) (“CPI”) or the successor index that most closely approximates the CPI.
\n —
\nIf the CPI shall be discontinued with no successor or comparable successor
\nindex, Landlord and Tenant shall attempt to agree upon a substitute index or
\nformula, but if they are unable to so agree, then the matter shall be determined
\nby arbitration in accordance with the rules of the American Arbitration
\nAssociation then prevailing in San Francisco, California. Any decision or award
\nresulting from such arbitration shall be final and binding upon Landlord and
\nTenant and judgment thereon may be entered in any court of competent
\njurisdiction. In no event will the Basic Rent as adjusted by the CPI adjustment
\nbe less than the Basic Rent in effect for the three (3) year period immediately
\npreceding such adjustment.<\/p>\n
3. Arbitration of Disputes. NOTICE: BY INITIALING IN THE SPACE
\n ———————–
\nBELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED
\nIN PARAGRAPH 2 ABOVE DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA
\nLAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE
\nLITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE
\nGIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL UNLESS THOSE RIGHTS ARE
\nSPECIFICALLY INCLUDED IN PARAGRAPH 2 ABOVE. IF YOU REFUSE TO SUBMIT THE
\nARBITRATION AFTER AGREEMENT TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE
\nUNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT
\nTO THIS ARBITRATION PROVISION IS VOLUNTARY. WE HAVE READ AND UNDERSTAND THE
\nFOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN
\nPARAGRAPH 2 ABOVE TO NEUTRAL ARBITRATION.<\/p>\n
———— ————–
\n Landlord Tenant<\/p>\n
4. Effective Dates of CPI Adjustments. Basic Rent shall not be
\n ———————————-
\nadjusted to reflect changes in the CPI until the third (3rd) anniversary of the
\nBasic Rent Payment Date on which the first full monthly installment of Basic
\nRent shall be due and payable (the “First Full Basic Rent Payment Date”). As of
\n ———————————–
\nthe third (3rd) anniversary of the First Full Basic Rent Payment Date and
\nthereafter on the sixth (6th), ninth (9th), twelfth (12th), fifteenth (15th) and
\neighteenth (18th) and, if the initial Term is extended, on the twenty-first
\n(21st), twenty-fourth (24th), and twenty-seventh (27th), and, if the Term is
\nfurther extended, on the thirtieth (30th), thirty-third (33rd), thirty-sixth
\n(36th) and thirty-ninth (39th) anniversaries of the First Full Basic Rent
\nPayment Date and, if the Term is further extended pursuant to Paragraph 5(c), on
\neach third (3rd ) anniversary of the First Full Rent Payment Date thereafter,
\nBasic Rent shall be adjusted to reflect increases in the CPI during the most
\nrecent three (3) year period immediately preceding each of the foregoing dates
\n(each such date being hereinafter referred to as the “Basic Rent Adjustment
\n ———————
\nDate”).
\n—-<\/p>\n
5. Method of Adjustment for CPI Adjustment.
\n ————————————— <\/p>\n
(a) As of each Basic Rent Adjustment Date when the average CPI
\ndetermined in clause (i) below exceeds the Beginning CPI (as defined in this
\nParagraph 5(a)), the Basic Rent in effect immediately prior to the applicable
\nBasic Rent Adjustment Date shall be multiplied by a fraction, the numerator of
\nwhich shall be two (2) times the difference between (i) the average CPI for the
\nthree (3) most recent calendar months (the “Prior Months”) ending prior to such
\n ————
\nBasic Rent Adjustment Date for which the CPI has been published on or before the
\nforty-fifth (45th) day preceding such Basic Rent Adjustment Date and (ii) the
\nBeginning CPI, and the denominator of which shall be the Beginning CPI. An
\namount equal to the lesser of (x) the product of such multiplication or 6.903%
\nof the Basic Rent in effect immediately prior to such Basic Rent Adjustment Date
\nshall be added to the Basic Rent in effect immediately prior to such Basic Rent
\nAdjustment Date. As used herein, “Beginning CPI” shall mean the average CPI for
\n ————-
\nthe three (3) calendar months corresponding to the Prior Months, but occurring
\nthree (3) years earlier. If the average CPI determined in clause (i) is the
\nsame or less than the Beginning CPI, the Basic Rent will remain the same for the
\nensuing three (3) year period.<\/p>\n
(b) Effective as of a given Basic Rent Adjustment Date, Basic
\nRent payable under this Lease until the next succeeding Basic Rent Adjustment
\nDate shall be the Basic Rent in effect after the adjustment provided for as of
\nsuch Basic Rent Adjustment Date.<\/p>\n
(c) Notice of the new annual Basic Rent shall be delivered to
\nTenant on or before the tenth (10th) day preceding each Basic Rent Adjustment
\nDate, but any failure to do so by Landlord shall not be or be deemed to be a
\nwaiver by Landlord of Landlord’s rights to collect such sums. Tenant shall pay
\nto Landlord, within ten (10) days after a notice of the new annual Basic Rent is
\ndelivered to Tenant, all amounts due from Tenant, but unpaid, because the stated
\namount as set forth above was not delivered to Tenant at least ten (10) days
\npreceding the Basic Rent Adjustment Date in question.<\/p>\n
-2-<\/p>\n
EXHIBIT E<\/p>\n
INTENTIONALLY DELETED<\/p>\n
EXHIBIT F<\/p>\n
RECORDING REQUESTED BY, AND
\nWHEN RECORDED RETURN TO:<\/p>\n
___________________________<\/p>\n
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
\n ——————————————————-<\/p>\n
RECITALS<\/p>\n
This SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (“AGREEMENT”)
\nis entered into as of this ____ day of __________, ____, by and among ADVANCED
\nMICRO DEVICES, INC., a Delaware corporation (“TENANT”). __________________, a
\n________________ corporation (“LENDER”) and DELAWARE CHIP LLC, a Delaware
\nlimited liability company (“LANDLORD”).<\/p>\n
A. Pursuant to a Lease Agreement dated as of December 22, 1998 (the
\n“LEASE”) between Landlord and Tenant, Tenant is leasing from Landlord all of
\nthat certain real property located in the County of Santa Clara, State of
\nCalifornia, more particularly described in Exhibit A attached hereto, together
\nwith the buildings improvements located thereon (hereinafter referred to as the
\n“PROPERTY”).<\/p>\n
B. Lender intends to make a loan to Landlord in the amount of $ _____.00
\nwith interest thereon (the “LOAN”), evidenced by a certain Promissory Note
\nsecured by a Deed of Trust, Security Agreement and Fixture Filing of even date
\nherewith (together with any consolidations, replacements, extensions,
\nmodifications and renewals thereof and any other mortgage on the Property which
\nmay hereafter be held by Lender, the “SECURITY INSTRUMENT”), constituting a
\nvalid lien upon the Property and secured by an assignment of Landlord’s interest
\nin the Lease as more particularly set forth in a certain Assignment of Leases
\nand Rents (the “ASSIGNMENT”).<\/p>\n
C. As a condition precedent to funding the Loan, Lender has required that
\nLandlord and Tenant make certain agreements with Lender with respect to the
\nLease.<\/p>\n
NOW, THEREFORE, in consideration of the foregoing facts and mutual
\ncovenants contained herein, the parties hereto do hereby agree as follows:<\/p>\n
1. ASSIGNMENT; PAYMENT. Tenant hereby acknowledges and agrees that it has
\n ——————-
\nnotice that the Lease and the rent and all other sums due thereunder have been
\nassigned or are to be assigned to Lender as security for the obligations secured
\nby the Security Instrument and agrees to such assignment. Tenant agrees to pay
\nsuch sums due under the Lease directly to Lender. In complying with these
\nprovisions. Tenant shall be entitled to rely solely upon the notices given by
\nLender and Landlord hereby permits said direct payments to be made. Tenant shall
\nbe entitled to full credit under the Lease for any rents paid to Lender in
\naccordance with the provisions of this Paragraph to the same extent as if such
\nrents were paid directly to Landlord.<\/p>\n
2. SUBORDINATION. Subject to the terms hereof and by its execution
\n ————-
\nhereof, Tenant acknowledges that the Security Instrument in favor of Lender,
\nshall remain a lien on the Property until such time when fully paid or otherwise
\ndisposed of pursuant to the terms thereof, prior and superior to the Lease
\n(including specifically, without limitation, any option to purchase or rights of
\nfirst refusal affecting the Property, or any portion thereof, contained
\ntherein), the leasehold estate created thereby and Tenant’s right, title and
\ninterest in the Property as if the Security Instrument had been executed,
\ndelivered and duly recorded in the appropriate land records prior to the
\nexecution and delivery of the Lease.<\/p>\n
3. ATTORNMENT. If the interest of Landlord in the Property and under the
\n ———-
\nLease shall be acquired by Lender by reason of foreclosure of the Security
\nInstrument or any other act or proceeding(s) made or brought to enforce the
\nrights of the Lender, including, but not limited to, by deed in lieu of
\nforeclosure or as a result of any other means, then the Lease and all terms
\ntherein, and the rights of Tenant thereunder, shall continue in full force and
\neffect and shall not be altered, terminated, or disturbed, except in accordance
\nwith the terms of the Lease, and Tenant shall be bound to Lender and Lender
\nshall be bound to Tenant, subject to the terms hereof, under all of the terms,
\ncovenants and conditions of the Lease for the balance of the term and any
\nrenewals thereof with the same force and effect as if the Lender were the
\nLandlord under the Lease. In the event Lender acquires the interest of Landlord,
\nTenant hereby agrees to attorn to Lender as its landlord, said attornment to be
\neffective and self-operative without the execution of any other instruments on
\nthe part of either party hereto, immediately upon Lender succeeding to the
\ninterest of Landlord under the Lease with written notice of same being delivered
\nto Tenant. Upon receipt by Tenant of said written notice from Lender that Lender
\nhas succeeded to the interest of Landlord under the Lease, Tenant will make all
\npayments of monetary obligations due by Tenant under the Lease at the address
\nprovided by Lender in the notice. Tenant agrees, however, upon the election of
\nand written demand by Lender within sixty (60) days after Lender receives title
\nto Property, to execute an instrument in confirmation of the foregoing
\nprovisions, mutually satisfactory to Lender and Tenant, in which Lender and
\nTenant shall acknowledge these agreements.<\/p>\n
4. NONDISTURBANCE. If it becomes necessary to foreclose the Security
\n ————–
\nInstrument, Lender will not terminate the Lease nor join Tenant in summary or
\nforeclosure proceedings so long as an Event of Default as defined in the Lease
\nhas not occurred with respect to Tenant. If Lender shall succeed to the
\ninterests of Landlord under the Lease, Lender shall be bound to the Tenant under
\nall of the terms, covenants and conditions of the Lease from and after the date
\nof such succession to Landlord’s interest in the Lease, and Lender agrees to
\nrecognize Tenant and further agrees that, provided an Event of Default under the
\nLease has not occurred with respect to Tenant, Tenant shall not be disturbed in
\nits possession or use of the Property, said nondisturbance to be effective and
\nself-operative without the execution of any other instrument(s) on the part of
\neither party hereto, immediately upon Lender succeeding to the interest of
\nLandlord under the Lease. Tenant shall, from and after Lender’s succession to
\nthe interests of Landlord under the Lease, have the same remedies against Lender
\nfor the breach of any provision contained in the Lease that Tenant might have
\nhad under the Lease against Landlord if Lender had not succeeded to the
\ninterests of Landlord under the Lease; provided further, however, that Lender
\nand any purchaser at foreclosure or owner by virtue of a deed in lieu of
\nforeclosure shall not be:<\/p>\n
(a) liable for any acts or omissions of any prior landlord
\n(including, but not limited to, Landlord): or<\/p>\n
(b) subject to any offsets or defenses which Tenant may have against
\nany prior landlord (including, but not limited to, Landlord); or <\/p>\n
(c) liable for any consequential damages attributable to any acts or
\nomissions of any prior landlord (including, but not limited to, Landlord); or<\/p>\n
(d) obligated to give Tenant a credit for or acknowledge any rent or
\nany other sums not delivered to Lender which Tenant has paid to Landlord in
\nexcess of the rent due under the Lease at the time Lender gave Tenant notice of
\nits succession to the Landlord’s interest; or<\/p>\n
(e) liable for the repayment of any monies paid by Tenant under the
\nLease, including, without limitation, security deposits, unless Lender actually
\nreceived possession of such monies and except to the extent provided in that
\ncertain Assignment of Leases, Rents and Security Deposit dated the date hereof
\nbetween Lender and Landlord, as Borrower, and acknowledged and agreed to by
\nTenant; or<\/p>\n
(f) obligated to commence or complete any construction or contribute
\ntoward the construction or installation of any improvements required under the
\nLease, or expand or rehabilitate existing improvements thereon, or restore
\nimprovements following any casualty not required to be insured under the Lease
\nor pay the costs of any restoration in excess of the proceeds recovered under
\nany insurance required to be carried under the Lease; or<\/p>\n
(g) liable for any damages or other relief attributable to any latent
\nor patent defects in construction; or<\/p>\n
(h) liable for any costs or expenses related to any indemnification
\nprovided by any prior landlord (including, but not limited to, Landlord) with
\nrespect to the presence or clean-up of any hazardous substances or materials in,
\non, under or about the leased premises; or<\/p>\n
(i) bound by any amendment or modification of the Lease made without
\nits consent and knowledge.<\/p>\n
Additionally, in such event, Tenant shall be bound to Lender, and Lender
\nshall be bound to Tenant, subject to the terms hereof, under all of the terms,
\ncovenants and conditions of the Lease, and Lender and Tenant shall, from and
\nafter Lender’s succession to the interest of Landlord under the Lease, have the
\nsame remedies against each other for the breach of any provision<\/p>\n
-3-<\/p>\n
contained in the Lease that they might have had under the Lease against each
\nother if Lender were the original Landlord under the Lease.<\/p>\n
5. LIMITATIONS ON LIABILITY. Neither this Agreement, the Assignment, nor
\n ————————
\nanything to the contrary in the Lease shall, prior to Lender’s acquisition of
\nLandlord’s interest in and possession of the Property, operate to give rise to
\nor create any responsibility or liability for the control, care, management or
\nrepair of the Property upon Lender, or impose responsibility for the carrying
\nout by Lender of any of the covenants, terms and conditions of the Lease, or
\nconstitute Lender a “mortgagee in possession,” nor shall said instrument operate
\nto make Lender responsible or liable for any waste committed on the Property by
\nany person whatsoever, or for any dangerous or defective condition of the
\nProperty, or for any negligence in the management, upkeep, repair or control of
\nthe Property resulting in loss, injury or death to any tenant, licensee,
\ninvitee, guest, employee, agent or stranger, provided however that Tenant will
\naccept performance by Lender of any obligation required to be performed by
\nLandlord under the terms of the Lease with the same force and effect as though
\nperformed by Landlord. Notwithstanding anything to the contrary in the Lease,
\nLender shall be responsible (subject to the limitations under paragraph 4 above)
\nfor performance of only those covenants and obligations of the Lease accruing
\nafter Lender’s acquisition of Landlord’s interest in and possession of the
\nProperty. In the event Lender becomes substitute landlord, Lender may assign its
\ninterest as substitute landlord without notice to or the consent of Tenant
\nprovided that such substitute landlord expressly assumes Lender’s obligations as
\nsubstitute Landlord under that Agreement.<\/p>\n
Anything herein or in the Lease to the contrary notwithstanding, in the
\nevent that Lender shall acquire title to the Property, Lender shall have no
\nobligation, nor incur any liability beyond the then-existing ownership interest,
\nif any, of Lender in the Property and Tenant shall look exclusively to such
\ninterest of Lender in the Property for the payment and discharge of any
\nobligations imposed upon Lender hereunder or under the Lease, and Lender is
\nhereby released and relieved of any other liability hereunder and under the
\nLease. As regards Lender, Tenant shall look solely to the estate or interest
\nowned by Lender in the Property and Tenant will not collect or attempt to
\ncollect any judgment out of any other assets of Lender.<\/p>\n
6. WARRANTIES AND REPRESENTATIONS. Tenant hereby warrants, represents,
\n ——————————
\ncovenants and agrees to and with Lender:<\/p>\n
(a) not to alter, modify, cancel, terminate or surrender the Lease,
\n except as provided therein;<\/p>\n
(b) after the date hereof (except as otherwise expressly provided in
\n the Lease), not to enter into any agreement with Landlord, its successors
\n or assigns, which grants any concession with respect to the Lease or which
\n reduces the rent or other Tenant obligations called for thereunder without
\n the express written consent of Lender and Tenant acknowledges that any such
\n agreement entered into without Lender’s consent shall not be binding on
\n Lender;<\/p>\n
-4-<\/p>\n
(c) after the date hereof (except as otherwise expressly provided in
\n the Lease), not to create any offset or claims against rents, or prepay
\n rent more than thirty (30) days in advance;<\/p>\n
(d) that Tenant is now lessee of the leasehold estate created by the
\n Lease and shall not hereafter assign the Lease except as permitted by the
\n terms thereof;<\/p>\n
(e) to promptly certify in writing to Lender, in connection with any
\n proposed assignment of the Security Instrument, whether or not any default
\n on the part of Landlord is claimed to exist under the Lease, and what any
\n such claimed default factually involves; and<\/p>\n
(f) that Tenant shall not voluntarily subordinate the Lease to any
\n other lien or encumbrance (except as otherwise expressly provided in the
\n Lease).<\/p>\n
7. NO WAIVER. Notwithstanding any other provision of this Agreement,
\n ———
\nwhere Lender acquires Landlord’s interest in and possession of the Property and
\na Landlord default has occurred and is continuing, Tenant shall not be
\nconsidered as having waived its rights to require that Lender remedy such
\ndefault if the Landlord default continues after the date Lender acquires
\nLandlord’s interest in and possession of the Property. In that case, Lender
\nshall have no liability for Landlord’s default as it applies to the period
\nbefore Lender’s acquisition of Landlord’s interest in and possession of the
\nProperty, but shall be liable for any failure to cure such continuing default
\nthereafter, provided only that Lender receives the benefit of any notice and
\ncure period required by the Lease or hereunder.<\/p>\n
8. GOVERNING LAW. This Agreement shall be governed by and construed in
\n ————-
\naccordance with the internal laws of the State of California.<\/p>\n
9. NOTICE AND CURE. In the event that Landlord shall default in the
\n —————
\nperformance or observance of any of the terms, conditions or agreements in the
\nLease, Tenant shall give written notice thereof to Lender and Lender shall have
\nthe right (but not the obligation) to cure such default. Tenant further agrees
\nthat if Landlord shall have failed to cure such default within the time provided
\nfor in the Lease, then the Lender shall have an additional forty-five (45) days
\nwithin which to cure such default or if such default cannot be cured within that
\ntime, then such additional time as may be necessary to cure such default shall
\nbe granted if within such forty-five (45) days Lender has commenced and is
\ndiligently pursuing the remedies necessary to cure such default (including, but
\nnot limited to, commencement of foreclosure proceedings, if necessary to effect
\nsuch cure), in which event the Lease shall not be terminated while such remedies
\nare being so diligently pursued and provided that if and to the extent any such
\ndefaults are monetary in nature, Lender has cured the monetary aspects of such
\ndefaults within such forty-five (45) day period.<\/p>\n
10. BINDING EFFECT; DEFINITIONS. The provisions of this Agreement shall be
\n —————————
\ncovenants running with the Property, and shall be binding upon and inure to
\nthe benefit of the respective parties hereto and their respective heirs,
\nlegatees, executors, administrators, beneficiaries, <\/p>\n
-5-<\/p>\n
successors and assigns, including without limitation (a) any person who shall
\nobtain, directly or by assignment or conveyance, any interest in the Security
\nInstrument and any person who shall obtain any interest in the Property, whether
\nthrough foreclosure or otherwise. As used herein the term “TENANT” shall include
\nTenant, its successors and assigns; the words “FORECLOSURE” and ‘FORECLOSURE
\nSALE” as used herein shall be deemed to include the acquisition of Landlord’s
\nestate in the Property by voluntary deed (or assignment) in lieu of foreclosure;
\nand the word “LENDER” shall include Lender herein specifically named and any of
\nits successors and assigns, including anyone who shall have succeeded to
\nLandlord’s interest in the Property by, through or under foreclosure of the
\nSecurity Instrument.<\/p>\n
11. ENTIRE AGREEMENT. This Agreement shall be the whole and only agreement
\n —————-
\nbetween the parties hereto with regard to the subordination of the Lease and
\nleasehold interest of Tenant to the Security Instrument in favor of Lender, and,
\nwith respect to Lender and Tenant only, shall supersede and cancel any prior
\nagreements as to such, or any, subordination, including, but not limited to,
\nthose provisions, if any, contained in the Lease, which provide for the
\nsubordination of the Lease and leasehold interest of Tenant to a deed or deeds
\nof trust or to a Security Instrument of Security Instruments to be thereafter
\nexecuted, and shall not be modified or amended except in writing signed by all
\nparties hereto.<\/p>\n
12. CONSIDERATION. Tenant declares, agrees and acknowledges that it
\n ————-
\nintentionally and unconditionally waives, relinquishes and subordinates the
\nLease and leasehold interest in favor of the Security Instrument above mentioned
\nto the extent set forth in this Agreement, and, in consideration of this waiver,
\nrelinquishment and subordination, specific loans and advances are being and will
\nbe made and, as part and parcel thereof, specific monetary and other obligations
\nare being and will be entered into which would not be made or entered into but
\nfor said reliance upon this waiver, relinquishment and subordination. Lender
\nacknowledges and agrees that Tenant is relying on the agreements and obligations
\nof Lender hereunder in executing this Agreement.<\/p>\n
13. INVALIDITY OR UNENFORCEABILITY. If any term, covenant or condition of
\n ——————————
\nthis Agreement is held to be invalid, illegal or unenforceable in any respect,
\nthis Agreement shall be construed without such provision.<\/p>\n
14. NUMBER AND GENDER. The use of the neuter gender in this Agreement
\n —————–
\nshall be deemed to include any other gender, and words in the singular number
\nshall be held to include the plural, when the sense requires.<\/p>\n
15. COUNTERPARTS. This Agreement may be executed in one or more
\n ————
\ncounterparts each of which shall be deemed to be an original and all of which,
\nwhen taken together, shall be deemed one and the same document.<\/p>\n
16. NOTICE. Any notice required or allowed by this Agreement shall be in
\n ——
\nwriting and shall be (i) hand-delivered, effective upon receipt, or (ii) sent by
\nUnited States Express Mail or by private overnight courier, effective upon
\nreceipt, or (iii) served by certified mail, postage prepaid, return receipt
\nrequested, deemed effective on the day of actual delivery as shown by the <\/p>\n
-6-<\/p>\n
addressee’s return receipt or the expiration of three (3) business days after
\nthe date of mailing, whichever is the earlier in time; addressed to the party
\nintended to receive the same at the address set forth below;<\/p>\n
If to Tenant Advanced Micro Devices, Inc.
\n One AMD Place
\n Sunnyvale, California 94088
\n Attention: General Counsel<\/p>\n
With Copy to: Shartsis, Friese & Ginsburg LLP
\n One Maritime Plaza
\n San Francisco, California 94111
\n Attention: David Kremer<\/p>\n
If to Landlord: Delaware CHIP LLC
\n c\/o W.P. Carey & Co., Inc.
\n 50 Rockefeller Plaza – 2nd Floor
\n New York, New York, 10020
\n Attention: Mr. Sean Sovak<\/p>\n
With Copy to: Reed Smith Shaw & McClay LLP
\n 2500 One Liberty Place
\n Philadelphia, Pennsylvania 19103
\n Facsimile No. (215) 851-1420
\n Attn: Chairman, Real Estate Department<\/p>\n
If to Lender:<\/p>\n
With a copy to:<\/p>\n
And<\/p>\n
-7-<\/p>\n
The parties may, by written notice to the others, designate a different
\nmailing address for notices.<\/p>\n
18. Confidentiality. Lender hereby agrees, with respect to information
\n —————
\nrequested by Lender or required to be delivered to Lender pursuant to the terms
\nof the Security Instrument or the other loan documents, to be bound to the
\nconfidentiality provisions contained in Section 28(c) of the Lease as of the
\ndate hereof. <\/p>\n
-8-<\/p>\n
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
\nfirst above written.<\/p>\n
LANDLORD:<\/p>\n
DELAWARE CHIP LLC,
\n a Delaware limited liability company<\/p>\n
By: MICRO (CA) QRS 11-43, INC.,
\n a Delaware corporation,
\n Its Manager<\/p>\n
By:_________________________
\n W. Sean Sovak
\n First Vice President<\/p>\n
TENANT;<\/p>\n
ADVANCED MICRO DEVICES, INC.,
\n a Delaware corporation<\/p>\n
By: ____________________________
\n Name: ______________________
\n Title: ______________________<\/p>\n
LENDER:<\/p>\n
GMAC COMMERCIAL MORTGAGE
\n CORPORATION, a California
\n corporation<\/p>\n
By: ____________________________
\n Name: ______________________
\n Title: ______________________<\/p>\n
-9-<\/p>\n
STATE OF NEW YORK )
\n ) ss: _______________________
\nCOUNTY OF NEW YORK )<\/p>\n
On December ______, 1998, before me, _____________, a Notary Public in and
\nfor the State of California, personally appeared W. Sean Sovak, personally known
\nto me (or proved to me on the basis of satisfactory evidence) to be the person
\nwhose name is subscribed to the within instrument, and acknowledged to me that
\nhe executed the within instrument in his authorized capacity and that, by his
\nsignature on the within instrument, the person or entity upon behalf of which he
\nacted executed the within instrument.<\/p>\n
WITNESS my hand and official seal.<\/p>\n
Signature:_____________________________ (SEAL)<\/p>\n
STATE OF NEW YORK )
\n ) ss: _______________________
\nCOUNTY OF NEW YORK )<\/p>\n
On December ______, 1998, before me, _____________, a Notary Public in and
\nfor the State of California, personally appeared _______________, personally
\nknown to me (or proved to me on the basis of satisfactory evidence) to be the
\nperson whose name is subscribed to the within instrument, and acknowledged to me
\nthat he executed the within instrument in his authorized capacity and that, by
\nhis signature on the within instrument, the person or entity upon behalf of
\nwhich he acted executed the within instrument.<\/p>\n
WITNESS my hand and official seal.<\/p>\n
Signature: ____________________________ (SEAL)<\/p>\n
-10-<\/p>\n
STATE OF CALIFORNIA )
\n ) ss: _______________
\nCOUNTY OF )<\/p>\n
On December ____, 1998, before me, _______________, a Notary Public in and
\nfor the State of California, personally appeared ____________, personally known
\nto me (or proved to me on the basis of satisfactory evidence) to be the person
\nwhose name is subscribed to the within instrument, and acknowledged to me that
\nhe executed the within instrument in his authorized capacity and that, by his
\nsignature on the within instrument, the person or entity upon behalf of which he
\nacted executed the within instrument.<\/p>\n
WITNESS my hand and official seal.<\/p>\n
Signature: ___________________________ (SEAL)<\/p>\n
-11-<\/p>\n
EXHIBIT G<\/p>\n
SCHEDULE OF TERMINATION AMOUNTS<\/p>\n
The Termination Amount shall equal the following amounts for the specified lease
\nyear plus the Prepayment Premium.<\/p>\n
\n\n Lease Year Amount
\n —————————————–
\n
\n 1 $ 99,546,291.00
\n —————————————–
\n 2 $ 99,546,291.00
\n —————————————–
\n 3 $ 99,546,291.00
\n —————————————–
\n 4 $ 99,546,291.00
\n —————————————–
\n 5 $101,405,445.00
\n —————————————–
\n 6 $101,405,445.00
\n —————————————–
\n 7 $101,405,445.00
\n —————————————–
\n 8 $101,405,445.00
\n —————————————–
\n 9 $ 98,194,241.00
\n —————————————–
\n 10 $ 98,194,241.00
\n —————————————–
\n 11 $ 98,194,241.00
\n —————————————–
\n 12 $ 98,194,241.00
\n —————————————–
\n 13 $ 96,429,228.00
\n —————————————–
\n 14 $ 96,429,228.00
\n —————————————–
\n 15 $ 94,295,854.00
\n —————————————–
\n 16 $ 94,295,854.00
\n —————————————–
\n 17 $ 93,815,960.00
\n —————————————–
\n 18 $ 93,815,960.00
\n —————————————–
\n 19 $ 93,815,960.00
\n —————————————–
\n 20 $ 93,815,960.00
\n —————————————–
\n <\/c><\/s><\/caption>\n<\/table>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6576],"corporate_contracts_industries":[9512],"corporate_contracts_types":[9583,9579],"class_list":["post-41941","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-advanced-micro-devices-inc","corporate_contracts_industries-technology__semiconductors","corporate_contracts_types-land__ca","corporate_contracts_types-land"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41941","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41941"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41941"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41941"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41941"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}