Exhibit 10.20
BUILD TO SUIT LEASE
BY AND BETWEEN
MICRON TECHNOLOGY, INC., a Delaware corporation,
as landlord
AND
PHOTRONICS, INC., a Connecticut corporation,
as tenant
BUILD TO SUIT LEASE
BY AND BETWEEN
MICRON TECHNOLOGY, INC., a Delaware corporation,
------------------------------------------------
as landlord
AND
PHOTRONICS, INC. a Connecticut corporation,
as tenant
Dated: May ____, 2006
INDEX
Page
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ARTICLE I. DEFINITIONS.........................................................1
ARTICLE II. DEMISE.............................................................8
ARTICLE III. PREMISES..........................................................8
Section 3.1 Premises Defined...........................................8
Section 3.2 Reservation of Oil, Gas, Mineral and Water Rights..........9
Section 3.3 Permitted Exceptions.......................................9
ARTICLE IV. TERM..............................................................10
Section 4.1 Length of Term............................................10
Section 4.2 Lease Commencement Date and Rent Commencement Date........11
Section 4.3 Conveyance to Photronics Upon Expiration of Lease
Term or Prepayment; Micron Right of First Refusal..............11
ARTICLE V. RENT...............................................................11
Section 5.1 Base Rent.................................................11
Section 5.2 Rent Defined; Additional Rent.............................12
Section 5.3 Lease Prepayment; Principal Reduction Payments............13
ARTICLE VI. TAXES.............................................................15
Section 6.1 Real Property Taxes.......................................15
Section 6.2 Separate Tax Parcel.......................................16
Section 6.3 Other Taxes...............................................17
Section 6.4 Right to Contest..........................................17
ARTICLE VII. CONDUCT OF BUSINESS BY PHOTRONICS................................17
Section 7.1 Use of Premises...........................................17
Section 7.2 Restrictions on Use.......................................18
i
Section 7.3 Contest of Requirements...................................19
Section 7.4 Exterior Signs and Sign Monument(s).......................19
ARTICLE VIII. MAINTENANCE, REPAIRS AND ALTERATIONS............................20
Section 8.1 Micron's Obligations......................................20
Section 8.2 Photronics' Obligations...................................20
Section 8.3 Alterations and Additions.................................21
ARTICLE IX. INSURANCE; INDEMNITY..............................................22
Section 9.1 Liability Insurance.......................................22
Section 9.2 Casualty Insurance - Fixtures, Mask Shop Equipment,
Personal Property and Photronics' Improvements.................23
Section 9.3 Insurance Policies........................................24
Section 9.4 Waiver of Subrogation.....................................24
Section 9.5 Indemnity.................................................25
Section 9.6 Exemption of Micron.......................................25
Section 9.7 Notices...................................................26
Section 9.8 Builder's Risk Insurance to be Maintained by Micron.......26
ARTICLE X. DAMAGE OR DESTRUCTION AND APPROPRIATION............................26
Section 10.1 Damage or Destruction....................................26
Section 10.2 Appropriation............................................28
Section 10.3 Termination of Lease upon Substantial Casualty
or Substantial Appropriation...................................29
Section 10.4 No Micron Liability for Casualty or Appropriation........30
ARTICLE XI. ASSIGNMENT AND SUBLETTING.........................................30
Section 11.1 Micron's Rights..........................................31
Section 11.2 No Release of Photronics.................................31
ARTICLE XII. RESERVED.........................................................32
ARTICLE XIII. UTILITY SERVICES................................................32
Section 13.1 Utility Charges..........................................32
Section 13.2 Interruption of Service..................................32
ARTICLE XIV. DEFAULTS AND REMEDIES............................................32
Section 14.1 Defaults.................................................32
Section 14.2 Remedies.................................................33
Section 14.3 Determination of Rent....................................34
Section 14.4 Default by Micron........................................35
Section 14.5 Expense of Litigation....................................35
Section 14.6 Holding Over.............................................35
Section 14.7 Micron's Rights..........................................35
Section 14.8 Third-Party Litigation...................................36
ii
ARTICLE XV. HAZARDOUS MATERIALS...............................................36
ARTICLE XVI. IMPROVEMENT OF THE PREMISES......................................40
Section 16.1 Timeline; Commitment for Equipment Financing;
Coordination...................................................40
Section 16.2 Micron's Work............................................40
Section 16.3 Photronics' Work.........................................42
Section 16.4 Warranties and Guaranties................................42
ARTICLE XVII. MISCELLANEOUS...................................................43
Section 17.1 Offset Statement.........................................43
Section 17.2 Micron's Right of Access.................................43
Section 17.3 Transfer of Micron's Interest............................44
Section 17.4 Separability.............................................44
Section 17.5 Interest on Past Due Obligations.........................44
Section 17.6 Time of Essence..........................................45
Section 17.7 Construction; Interpretation.............................45
Section 17.8 Incorporation of Prior Agreements; Amendments............46
Section 17.9 Notices..................................................46
Section 17.10 Brokers.................................................47
Section 17.11 Waivers.................................................47
Section 17.12 Liens...................................................47
Section 17.13 Subordination...........................................48
Section 17.14 Force Majeure...........................................49
Section 17.15 Yield Up Premises; Quitclaim............................49
Section 17.16 Survival of Indemnities.................................50
Section 17.17 Security Deposit........................................50
Section 17.18 No Option...............................................50
Section 17.19 Micron Liability........................................50
Section 17.20 Termination.............................................51
Section 17.21 Accord and Satisfaction.................................52
Section 17.22 Counterparts............................................52
Section 17.23 Building Security.......................................53
Section 17.24 Publicity...............................................53
Section 17.25 Governing Law...........................................53
Section 17.26 Rights and Remedies Cumulative..........................53
Section 17.27 Dispute Resolution......................................54
Section 17.28 Third-Party Beneficiaries...............................54
Section 17.29 No Recording............................................54
Section 17.30 Quiet Enjoyment.........................................54
EXHIBIT A - Plot Plan of Land
EXHIBIT B - Legal Description of Land
EXHIBIT C - Form of Special Warranty Deed
EXHIBIT D-1 - Form of Lease Payment Schedule
EXHIBIT D-2 - Sample Lease Payment Schedule (for Illustrative Purposes Only)
EXHIBIT E - Timeline
iii
EXHIBIT F - Reserved
EXHIBIT G - Core and Shell Work and Related Work
EXHIBIT H - Form of Memorandum of Lease
EXHIBIT I - Form ofMemorandum of Cancellation of Lease
iv
BUILD TO SUIT LEASE
-------------------
THIS BUILD TO SUIT LEASE ("Lease") is made and entered into as of
May ___, 2006, by and between MICRON TECHNOLOGY, INC., a Delaware corporation
("Micron") and PHOTRONICS, INC., a Connecticut corporation ("Photronics") (each
a "Party" and collectively the "Parties").
RECITALS
(a) Micron and Photronics are each in the business of the
development, fabrication and sale of photomasks.
(b) Pursuant to certain Transaction Documents (defined in
Article I hereof), Micron and Photronics have entered into certain contracts
with each other with respect formation and operation of the Company dedicated to
the development, fabrication and sale of advanced photomasks for Micron and
Photronics.
(c) In order for Photronics to obtain a facility qualified to
produce the advanced photomasks for Micron pursuant to the requirements of said
Transaction Documents, Micron and Photronics desire to enter into this Lease for
the development, construction, leasing, equipping and ultimate conveyance to
Photronics of a qualified "mask shop" production facility, subject and pursuant
to the terms and conditions herein set forth.
ARTICLE I.
DEFINITIONS
"additional rent" shall have the meaning set forth in Section
5.2.
"Affiliate" of any specified Person means any other Person
Controlling or Controlled by or under common Control with such specified Person.
"Alterations" shall have the meaning set forth in Section 8.3(a).
"Applicable Laws" shall mean all present and future laws,
ordinances, orders, rules, regulations and requirements of all governmental
authorities having jurisdiction over the Premises, Micron or Photronics and the
requirements of any applicable insurance underwriters, all of the foregoing
applicable to the ownership, development, use, occupancy and maintenance of the
Premises and any certificates of occupancy issued for the Premises.
"Applicable Lease Prepayment Date" shall have the meaning set
forth in Section 5.3(a)(ii).
"Appropriation" shall mean any taking of or damage to all or any
part of the Premises by reason of any exercise of the power of eminent domain,
whether by condemnation proceedings or otherwise, or any transfer of all or any
part of the Premises made in avoidance of an exercise of the power of eminent
domain.
1
"Appropriation Award" means any award(s) paid or payable (whether
or not in a separate award) to either Party after the Lease Commencement Date
because of or as compensation for any Appropriation, including: (1) any award
made for any improvements that are the subject of the Appropriation; (2) the
full amount paid or payable by the condemning authority for the estate that is
the subject of the Appropriation, as determined in Appropriation; (3) any
interest on such award; and (4) any other sums payable on account of such
Appropriation.
"Appropriation Effective Date" shall mean, for any Appropriation,
the first date when the condemning authority has acquired title to or possession
of any Premises subject to the Appropriation.
"Base Rent" shall have the meaning set forth in Section 5.1(a).
"Building" shall mean a single building (unless otherwise
mutually approved by the Parties) containing approximately [****] of rentable
floor area and functionally similar to Micron's Existing Mask Shop.
"Business Day" shall mean any weekday on which State-chartered
banks are open to conduct regular business with bank personnel.
"Capacity Commitment" shall have the meaning ascribed in the
Photronics to Micron Supply Agreement.
"Casualty" shall mean any damage or destruction of any kind or
nature, ordinary or extraordinary, foreseen or unforeseen, affecting the
Building, leasehold improvements and Photronics' Improvements, whether or not
insured or insurable.
"City" shall mean the city or municipality in which the Land is
located.
"Closing Documents" shall have the meaning set forth in Section
4.3(a).
"Code" shall mean the United States Bankruptcy Code (11 U.S.C.,
Sec. 101 et seq.).
"Company" shall mean MP Mask Technology Center, LLC, a Delaware
limited liability company.
"Company Operating Agreement" shall mean that certain Limited
Liability Company Operating Agreement of MP Mask Technology Center, LLC dated of
even date herewith between Micron and Photronics.
"Contribution and Purchase Agreement" shall mean that certain
Contribution and Units Purchase Agreement of even date herewith between the
Parties.
2
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
"Control" shall mean the possession, directly or indirectly, of
either: (a) at least fifty-one percent (51%) direct or indirect ownership of the
equity interests of a Person; or (b) the power to direct or cause the direction
of the management and policies of such Person, whether by ownership of equity
interests, by contract, or otherwise.
"Copy Exact" shall have the meaning ascribed in the Technology
License Agreement.
"Core and Shell Work" shall have the meaning set forth in Section
16.2(b).
"Default" shall have the meaning set forth in Section 14.1.
"Default Rate" shall mean the maximum rate of interest then
permitted to be charged pursuant to applicable usury laws but not to exceed
fifteen percent (15%) per annum simple interest.
"Default Termination Security" shall have the meaning set forth
in Section 5.3(a)(iii).
"Depository" shall mean the escrow services department of a
nationally recognized title insurance company such as Chicago Title Insurance
Company.
"Development Costs" shall have the meaning set forth in Section
5.1(a).
"Development Cost Notice" shall have the meaning set forth in
Section 5.1(c).
"DEQ" shall have the meaning set forth in Section 16.2(d).
"Environmental Law" shall mean any Applicable Law about the
following at, in, under, above, or upon the Premises: (a) air, water, land,
ground water, or soil conditions; or (b) clean-up, control, disposal,
generation, storage, release, transportation, or use of, or liability or
standards of conduct concerning hazardous materials.
"Existing Mask Shop" shall mean the Company's mask shop facility
located in Boise, Idaho as originally constructed, which current facility is
being contributed to the Company by Micron pursuant to the Contribution and
Purchase Agreement.
"Form of Special Warranty Deed" shall mean the Form of Special
Warranty Deed attached hereto as Exhibit "C".
"hazardous materials" shall mean (a) asbestos, radioactive
materials, polychlorinated biphenyls, urea formaldehyde, and all petroleum
substances, and (b) all hazardous materials, hazardous wastes and hazardous or
toxic substances defined in or subject to control or regulation by the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended (42 U.S.C., Sec. 9601 et seq.) ("CERCLA"), the Resource Conservation and
Recovery Act, as amended (42 U.S.C., Sec. 6901 et seq.), the Toxic
3
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
Substances Control Act, as amended (15 U.S.C. Sec. 2601 et seq.), the Clean
Water Act (33 U.S.C. Sections 1321 et seq.), the Clean Air Act (42 U.S.C.
Sections 7412, et seq.), the Emergency Planning and Community Right-to-Know Act
(42 U.S.C. Sections 11001 et seq.), the Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C. Sections B6 et seq.), the Occupational Safety and
Health Act (29 U.S.C. Sections 651 et seq.) or the Safe Drinking Water Act (42
U.S.C. Sections 300f et seq.) and analogous state laws.
"Improvements" shall mean collectively the Micron Improvements
and the Photronics' Improvements.
"Land" shall mean the real property located in the Boise, Idaho
area, as shall be reasonably determined by Micron (subject to Photronics'
approval rights pursuant to Section 16.2(e)), together with all easements,
rights and other appurtenances thereto.
"Lease" shall have the meaning set forth in the Preamble.
"Lease Commencement Date" shall have the meaning set forth in
Section 4.2(a).
"Lease Payment Schedule" shall have the meaning set forth in
Section 5.1(a).
"Lease Prepayment" shall have the meaning set forth in Section
5.3(a).
"leasehold improvements" means collectively, the Building and all
Alterations (inclusive of applicable Micron Improvements and Photronics'
Improvements) which may be made or installed in, on, under or upon the Premises
or any improvements thereon and which are attached to the floor, walls or
ceiling of any improvements on the Premises and cannot be removed without
material damage to the Building, and any floor covering which is cemented or
otherwise affixed to the floor of any improvements on the Premises and cannot be
removed without material damage to the Building.
"Liabilities" shall have the meaning set forth in Section 9.5.
"Loss" means any Casualty or Appropriation.
"Mask Shop Equipment" shall have the meaning set forth in Section
16.3(b).
"Micron" shall have the meaning set forth in the Preamble.
"Micron Improvements" shall mean the improvements to be
constructed upon the Land pursuant to Article XVI hereof consisting of the
Building, together with all landscaping, lighting, parking, and other
improvements constructed by Micron pursuant to Article XVI below as a part of
the Premises. As used herein, the term "Micron Improvements" shall not include
any Photronics' Improvements constructed by Photronics pursuant to Article XVI,
any alterations made or constructed by Photronics pursuant to Section 8.3, or
any furniture, fixtures, equipment (including without limitation the Mask Shop
Equipment) and/or miscellaneous personal property of Photronics.
4
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
"Micron Party" and "Micron Parties" shall have the meaning set
forth in Article XV.
"Micron Retained Rights" shall have the meaning set forth in
Section 3.2.
"Micron's Work" shall have the meaning set forth in Section
16.2(a).
"No Default Lease Prepayment Date" shall have the meaning set
forth in Section 5.3(a)(i).
"Non-Restricted Default" shall mean any Default which (a) can be
cured by the payment of money alone (and which is so cured) AND the nature of
the breach giving rise to the Default is not such that potential residual
liability to Micron might reasonably be expected to arise after transfer to
Photronics of fee title to the Premises, or (b) [****].
"Non-Restricted Prepayment Date" shall have the meaning set forth
in Section 5.3(a)(ii).
"Party" or "Parties" shall have the meaning set forth in the
Preamble.
"Permitted Alterations" shall have the meaning set forth in
Section 8.3(a). "Permitted Change in Control Transfer" shall have
the meaning set forth in Section 11.1(b)(i).
"Permitted Development Easements" shall have the meaning set
forth in Section 3.3(b).
"Permitted Exceptions" shall have the meaning set forth in
Section 3.3(a).
"Permitted Photronics Change in Control" shall have the meaning
ascribed in the Company Operating Agreement.
"Permitted Use" shall mean the operation of a facility dedicated
to the fabrication of advanced photomasks, in compliance with the Transaction
Documents and activities directly ancillary thereto, all in accordance with all
Applicable Laws.
"Person" means any association, corporation, Government,
individual, joint venture, joint-stock company, limited liability company,
partnership, trust, unincorporated organization, or other entity of any kind.
(This does not limit any Transfer restriction).
"Photronics" shall have the meaning set forth in the Preamble.
"Photronics' Improvements" shall have the meaning set forth in
Section 16.3(b).
"Photronics to Micron Supply Agreement" shall mean that certain
Photronics to Micron Supply Agreement of even date herewith by and between the
Parties.
5
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
"Photronics' Party" and "Photronics' Parties" shall have the
meaning set forth in Article XV.
"Photronics' Property" shall have the meaning set forth in
Section 8.3(b).
"Photronics' Signage" shall have the meaning set forth in Section
7.4(a).
"Photronics' Work" shall have the meaning set forth in Section
16.3(b).
"Premises" shall have the meaning set forth in Section 3.1.
"Prepayment Restricted Default" shall mean any Default which is
not a Non-Restricted Default.
"Principal Reduction Payment" shall mean the partial prepayment
of a portion of the outstanding principal balance of the Base Rent pursuant to
the terms and conditions of Section 5.3(b).
"Prohibited Lien" means any mechanic's, vendor's, laborer's, or
material supplier's statutory lien or other similar lien arising from work,
labor, services, equipment, or materials supplied, or claimed to have been
supplied, to Photronics or any subtenant (or anyone claiming through either),
which lien attaches to the fee estate.
"Property Insurance Proceeds" means proceeds of insurance to be
maintained by Photronics pursuant to Section 9.2 and, prior to the date of
Substantial Completion for Rent Commencement, proceeds of insurance to be
maintained by Micron pursuant to Section 9.8.
"Qual Period End Date" means [****].
"Qualification" and "Qualified" shall have the meaning of the
term "Qualified" set forth in the Photronics to Micron Supply Agreement.
"Re-qualification" and "Re-qualified" shall have the same meaning.
"real property taxes" shall mean (i) all taxes, assessments and
governmental charges and surcharges, (including, without limitation, assessments
for public improvements or benefits whether or not commenced or completed during
the term, water, sewer, storm drains and other rents, rates and charges,
excises, levies, license fees, use fees, permit fees and other authorization
fees) and all other charges (in each case whether general or special, ordinary
or extraordinary, foreseen or unforeseen) of every kind and character (including
all penalties and interest thereon), levied upon or with respect to the
Premises, during the term, (ii) any tax or excise on or measured by rents, and
(iii) any other tax, however described, levied against Micron on account of the
rent reserved hereunder or on the business of renting the Premises. Provided,
however, that the term "real property taxes" shall not include any franchise,
estate, inheritance, succession, capital levy, net income or excess profits
taxes imposed upon Micron except that in the event that real property taxes are
withdrawn in whole or in part or any substitute tax is made therefor or for any
increase therein, such tax shall in any event for the purpose of this Lease be
6
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
considered a real property tax regardless of how denominated or the source from
which it is collected.
"Related Work" shall have the meaning set forth in Section
16.2(a).
"Release" means any accidental or intentional spilling, leaking,
pumping, pouring, emitting, discharging, injecting, escaping, leaching,
migrating, dumping or disposing in, over, on, under, through, or about the air,
land, surface water, ground water, or the environment (including without
limitation the abandonment or discarding of receptacles containing any hazardous
materials), unless and to the extent permitted or authorized by a governmental
agency.
"rent" shall have the meaning set forth in Section 5.2.
"Rent Commencement Date" shall have the meaning set forth in
Section 4.2(b).
"Restoration" means, after a Loss, the alteration, clearing,
rebuilding, reconstruction, repair, replacement, restoration, and safeguarding
of the damaged or remaining leasehold improvements and Photronics' Property
(including, without limitation, the Mask Shop Equipment), at least comparable to
their condition and function before the Loss and such that re-certification of
the Premises is obtained and re-Qualification is achieved.
"Restoration Funds" means Appropriation Award(s) and Property
Insurance Proceeds (plus deficiency deposits to be made by Photronics) to be
applied to Restoration.
"Restore" means accomplish a Restoration.
"Right of First Refusal" shall have the meaning set forth in
Section 4.3(b).
"Security System" shall have the meaning set forth in Section
17.23(b).
"SNDA" shall have the meaning set forth in Section 17.13.
"Special Warranty Deed" shall have the meaning set forth in
Section 4.3(a).
"Substantial Appropriation" means such taking which, in Micron's
sole determination, shall necessitate Restoration which is estimated to equal or
exceed $15,000,000.
"Substantial Casualty" means such damage or destruction to the
Premises which, in Micron's sole determination, shall necessitate Restoration
which is estimated to equal or exceed $[****].
"Substantial Completion for Photronics' Installation" shall mean
[****].
"Substantial Completion for Rent Commencement" shall mean, with
respect to the Core and Shell Work and the Related Work, that [****].
7
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
"Technology License Agreement" shall mean that certain Technology
License Agreement dated of even date herewith executed by and among the Parties
and the Company.
"Temporary Certificate of Occupancy" shall mean a temporary
certificate of occupancy with respect to the Premises which is sufficient to
permit Photronics the right to occupy the Premises for the purpose of commencing
such portions of Photronics' Work which are to be performed on and with respect
to the Premises.
"term" shall have the meaning set forth in Section 4.1.
"termination date" shall mean the effective date of any
termination of the Lease pursuant to the provisions of the Lease.
"Timeline" shall have the meaning set forth in Section 16.1(a).
"Transaction Documents" shall mean those certain documents listed
in Schedule "B" to the Contribution and Purchase Agreement.
"Transfer" shall have the meaning set forth in Section 11.1(a).
"UCC" shall mean the Uniform Commercial Code of the State of
Idaho, as amended.
ARTICLE II.
DEMISE
In consideration of Ten and No/100 Dollars ($10.00), the rents
and covenants hereinafter set forth and other good and valuable consideration,
the receipt and adequacy of which is mutually acknowledged, Micron, as landlord,
hereby leases and Photronics, as tenant, hereby rents from Micron, the Premises,
upon the terms and conditions herein set forth.
ARTICLE III.
PREMISES
Section 3.1 Premises Defined
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The "Premises" (herein so called) shall consist of the following:
(a) The "Land". Once the Land has been determined, this Lease
will be amended to add as Exhibits "A" and "B", respectively, a more particular
depiction of the Land and a legal description of the Land.
(b) The leasehold improvements.
(c) All references herein to the Premises shall, unless the
context clearly indicates to the contrary, mean and include the Land and the
Micron Improvements.
8
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
Section 3.2 Reservation of Oil, Gas, Mineral and Water Rights
----------- -------------------------------------------------
Micron reserves all oil, gas, hydrocarbons, mineral and water
rights in the Premises and attendant right and easement to access and extract
same ("Micron Retained Rights"); provided that no such items shall be extracted
in such manner as may cause or contribute to a lessening of the support of the
Land and the leasehold improvements or adversely affect and compromise the use
of the Premises for the Permitted Use. This reservation shall not apply if the
Land is not land owned or adjacent to other land owned by Micron or an Affiliate
of Micron as of the date of this Lease.
Section 3.3 Permitted Exceptions
----------- --------------------
This Lease and the conveyance of the Premises contemplated herein
is and shall be made subject to the following:
(a) The lien of all ad valorem real estate taxes due and payable
in the calendar year 2006 and subsequent calendar years; (b) all matters of
record relating to the Land in the official records of the county in which the
Land is located; (c) local, state and federal laws, ordinances or governmental
regulations and the like, including but not limited to building and zoning laws,
ordinances and regulations, now or hereafter in effect relating such real
property; (d) any matters that would be shown on an accurate survey of current
date of the Land; (e) matters resulting from the acts of Photronics or any party
acting by, for, through or under Photronics; (f) the Micron Retained Rights
reserved in Section 3.2; and (g) Micron's Right of First Refusal (collectively
with the Permitted Development Easements, the "Permitted Exceptions").
Notwithstanding the foregoing, (a) any mortgage (and related security documents
such as a UCC fixture filing) recorded against the Land in connection with
financing obtained by Micron shall not be a Permitted Exception and shall be
removed prior to conveyance of fee title by Micron to Photronics pursuant to
this Lease; (b) any mechanic's or materialmans' lien recorded against the Land
in connection with Micron's Work; (c) the lien of all real property taxes for
the period prior to the Lease Commencement Date; and (d) any other lien,
attachment or lis pendens recorded against the Premises caused solely by the
acts or omissions of Micron shall not be a Permitted Exception and shall either
be removed of record or otherwise adequately bonded to Photronics' reasonable
satisfaction prior to conveyance of fee title by Micron to Photronics pursuant
to this Lease.
(b) Micron and Photronics recognize that, in connection with
developing the Premises, Micron may be required or may find it reasonably
necessary to grant and record (i) customary public utility, drainage and other
developmental easements for the benefit of the Premises for the Permitted Use;
(ii) a mortgage and related security instruments against the Premises (or any
part thereof) in connection with the construction and/or permanent financing of
the Premises, and (iii) certain easements, covenants, declarations and/or
restrictions for the benefit of adjacent land owned by Micron, if applicable.
Such easements, covenants, rights, declarations and restrictions, to the extent
the creation or existence of same are reasonable and customary and do not
materially adversely affect the development or use of the Premises for the
Permitted Use shall be referred to herein as the "Permitted Development
Easements."
9
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
ARTICLE IV.
TERM
Section 4.1 Length of Term
----------- --------------
The term (the "term") of this Lease shall be from the date of the
last execution and delivery of this Lease by Micron and Photronics, and shall
continue for a period of twenty full calendar quarters following the Rent
Commencement Date, subject to any early termination of this Lease or
acceleration of the expiration date pursuant to the provisions of Section
5.3(a). The occurrence of the expiration of the Lease term upon either the last
day of the term or, if applicable, upon the Applicable Lease Prepayment Date
shall not be deemed a termination of this Lease for purpose of the Parties'
respective rights and remedies provided for herein upon a termination of this
Lease.
Section 4.2 Lease Commencement Date and Rent Commencement Date
----------- --------------------------------------------------
(a) The "Lease Commencement Date" shall be the date of
Substantial Completion for Photronics' Installation. Delivery of possession
shall be accomplished by written notice to Photronics setting forth the
effective date of the Temporary Certificate of Occupancy. Upon Substantial
Completion for Photronics' Installation and delivery of possession of the
Premises to Photronics, Photronics shall take possession of the Premises and
commence the installation of Photronics' Improvements (inclusive of the Mask
Shop Equipment) in the Building. From and after the Lease Commencement Date,
Photronics shall observe or perform all obligations of the tenant pursuant to
this Lease, provided that Base Rent and additional rent (other than any non-Base
Rent sums specified herein to be due and payable when incurred) shall not be
payable until the Rent Commencement Date. Pending the occurrence of the Lease
Commencement Date as to the Premises, each Party shall observe or perform all
obligations of such Party pursuant to this Lease not dependent upon the
occurrence of the Lease Commencement Date including the performance of all
obligations of such Party in accordance with the Timeline.
(b) The "Rent Commencement Date" shall be [****]. Upon the Rent
Commencement Date, Photronics shall commence payment of Base Rent and all
additional rent (other than any non-Base Rent sums specified herein to be due
and payable prior to the Rent Commencement Date) and from and after the Rent
Commencement Date Photronics shall continue to perform all obligations of the
tenant pursuant to this Lease.
(c) Within thirty (30) days following the date of Substantial
Completion for Rent Commencement, Micron and Photronics shall execute and
acknowledge a supplemental agreement setting forth the Lease Commencement Date
and Rent Commencement Date of this Lease. Notwithstanding the foregoing, failure
of Photronics to execute such supplemental agreement shall not affect the Lease
Commencement Date or the Rent Commencement Date in accordance with the
provisions of this Lease.
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Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
Section 4.3 Conveyance to Photronics Upon Expiration of Lease Term or
------------------------------------------------------------------------
Prepayment; Micron Right of First Refusal
-----------------------------------------
(a) Provided Photronics has satisfied, complied with and
performed all of its obligations hereunder (subject to the terms and conditions
of Section 5.3(a)), as soon as reasonably practicable but in no event more than
thirty (30) days following the date of expiration of the Lease term (as same may
be accelerated pursuant to Section 5.3(a)), Micron shall execute (effective as
of the applicable expiration date of the Lease term) and deliver to Photronics a
special warranty deed in form and substance as attached hereto as Exhibit "C"
conveying Micron's right, title and interest in the Premises to Photronics
subject to (a) the Permitted Exceptions, inclusive of Micron's Right of First
Refusal (the "Special Warranty Deed"). In connection with any conveyance to
Photronics by Micron under this Section 4.3, the Parties shall execute and
deliver additional reasonably customary closing documents (such as transfer tax
declarations, 1099 certification, and FIRPTA certificate) including standard
title company required documents, if applicable (the "Closing Documents").
[****].
(b) So long as Photronics or an Affiliate of Photronics is a
member of, or holds any ownership interest in the Company or any successor joint
venture between Micron (or any Affiliate thereof) and Photronics (or any
Affiliate thereof) and no unrescinded notice of termination of the Company has
been delivered by either Party to the other, in the event of any voluntary or
involuntary sale or other conveyance of the Premises (or any part thereof) other
than in connection with a Permitted Photronics Change in Control, Micron shall
have ongoing right of first refusal (the "Right of First Refusal") for the
purchase of the Building and the Land alone. If Photronics' proposed third party
sale contract includes the sale of other real or personal property or
incorporates other terms and conditions (such as service or supply contracts to
be entered into with such third party) then Photronics and Micron shall agree
upon the purchase price to be applicable solely with respect to the Building and
Land. [****].
ARTICLE V.
RENT
Section 5.1 Base Rent
----------- ---------
(a) Commencing on the Rent Commencement Date and on the first day
of each calendar quarter thereafter during the Lease, Photronics shall pay to
Micron in advance, at Photronics' sole expense and without deduction or offset,
as base rent (the "Base Rent"), by wire transfer pursuant to wire instructions
to be provided to Photronics in writing by Micron prior to the Rent Commencement
Date (and as may be changed by Micron by written notice during the term), an
amount to be set forth on the lease payment schedule, in the form of Exhibit
"D-1" attached hereto, to be prepared by Micron following Substantial Completion
for Photronics' Installation and prior to the Rent Commencement Date, which
Exhibit when completed shall be incorporated herein by this reference (the
"Lease Payment Schedule"). [****]. Interest shall be computed on a per diem
basis of a 365-day year. As used herein, the term "Development Costs" shall mean
all costs and fees incurred in the design and construction of all Core and Shell
Work and all Related Work with respect to the Premises, including but not
limited to the following:
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Securities and Exchange Commission.
(i) [****];
(ii) [****].;
(iii) [****];
(iv) [****];
(v) [****];
(vi) [****];
(vii) [****];
(viii) [****];
(ix) [****];
(x) [****];
(xi) [****];
(xii) [****];
(xiii) [****];
(xiv) [****];
(xv) [****]; and
(xvi) [****].
[****].
(b) [****].
c) [****].
(d) [****].
Section 5.2 Rent Defined; Additional Rent
----------- -----------------------------
As used in this Lease, the term "rent" shall mean quarterly Base
Rent and additional rent, and the term "additional rent" shall mean all amounts
payable by Photronics pursuant to this Lease other than Base Rent, including,
without limitation, the real property taxes payable by Photronics pursuant to
Article VI below, insurance as required pursuant to Article IX and any
reimbursements and interest due Micron pursuant hereto. For the avoidance of any
12
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Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
doubt or dispute, this Lease constitutes an absolutely "net lease." The Base
Rent shall give Micron an absolutely "net" return for the term, free of any
expenses or charges for the Premises, except as this Lease expressly provides.
Photronics shall pay as additional rent and discharge before failure to pay
creates a material risk of forfeiture or penalty, each and every item of
expense, of every kind and nature whatsoever, related to or arising from the
Premises, or by reason of or in any manner connected with or arising from the
leasing, operation, management, maintenance, repair, use, or occupancy of, or
Photronics' Work relating to, the Premises. All Base Rent and additional rent
shall be paid without deduction or offset in lawful money of the United States
of America which shall be legal tender at the time of payment. When no other
time is stated herein for payment, payment of any amount due from Photronics to
Micron hereunder shall be made within thirty (30) business days after delivery
of Micron's invoice or statement therefor.
Section 5.3 Lease Prepayment; Principal Reduction Payments.
----------- -----------------------------------------------
(a) Lease Prepayment. Subject to the terms and conditions herein
set forth, at any time after (but not on or prior to) the occurrence of the
[****], Photronics shall have the right to prepay this Lease in full (the "Lease
Prepayment") and shorten the Lease term to expire as herein provided:
(i) Provided no Default then exists, Photronics shall have
the right to make the Lease Prepayment upon at least ten (10) Business Days
prior written notice to Micron of its intent to prepay and shall designate the
Lease Prepayment date in said notice (the "No Default Lease Prepayment Date").
(ii) In the event a [****] exists either as of the date of
written notice to Micron of Photronics' desire to make the Lease Prepayment or
upon the date of payment of the Lease Prepayment, Photronics shall have the
right to make the Lease Prepayment upon such date which is the later of (1) a
date at least ten (10) Business Days following the date of delivery of written
notice to Micron of Photronics' desire to prepay and (2) a date at least ten
(10) Business Days following the date of Photronics' satisfaction of the
conditions which qualify such Default as a Non-Restricted Default (the
"Non-Restricted Prepayment Date".
(iii) In the event a Prepayment Restricted Default exists
either as of the date of written notice to Micron of Photronics' desire to make
the Lease Prepayment or upon the date of payment of the Lease Prepayment,
Photronics shall have the right to make the Lease Prepayment PROVIDED that the
foregoing Lease Prepayment shall be subject to satisfaction of the following
requirements. [****]. Regardless of the form or nature of the Default
Termination Security, Photronics shall also grant Micron and Micron Parties the
[****].
(iv) Notwithstanding Section 4.1 to the contrary, the Lease
term shall expire upon the Applicable Lease Prepayment Date provided all the
conditions for Lease Prepayment have been satisfied in accordance with this
Section 5.3(a) and Micron shall deliver the Special Warranty Deed to Photronics
within thirty (30) days following the Applicable Lease Prepayment Date.
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Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
(v) If the Applicable Lease Prepayment Date occurs on the
first day of a calendar quarter, the Base Rent portion of such Lease Prepayment
shall be in such amount as shall be set forth in the column entitled "Prepayment
Amount/Balance" in the then current Lease Payment Schedule. If the Applicable
Lease Prepayment Date occurs on a date other than the first day of a calendar
quarter, the Base Rent portion of such Lease Prepayment shall be in such amount
as determined by Micron based upon the methodology used for calculation of the
"Prepayment Amount/Balance" referenced above. The Lease Prepayment shall be made
in the same manner as then required for payment of Base Rent (e.g., wire
transfer). In addition to payment of the "Prepayment Amount/Balance" amount (and
satisfaction of all other conditions set forth in this Section 5.3(a)), as a
condition to Lease Prepayment and conveyance of fee title to the Premises to
Photronics, Photronics shall pay all additional rent accrued through the
Applicable Lease Prepayment Date.
(b) Principal Reduction Payments. Photronics shall have the right
to make Principal Reduction Payments in addition to the Base Rent due and
payable under this Lease subject to and upon satisfaction of the following terms
and conditions:
(i) No uncured monetary Default then exists;
(ii) A Principal Reduction Payment shall be made no more
frequently than one time in each calendar quarter of the term (and shall be made
in the same manner as then required for payment of Base Rent (e.g., wire
transfer)) following at least ten (10) Business Days' prior written notice
thereof to Micron specifying the amount and the date upon which such partial
prepayment shall be made;
(iii) Such Principal Reduction Payment shall constitute an
advance payment to be applied first towards outstanding principal payable under
the Lease and not an early payment of the immediately succeeding quarterly
installment of Base Rent or principal then payable hereunder. For purposes of
the foregoing, principal means the principal portion of the Base Rent payable
under this Lease and shall be such amount as would be set forth in a then
current Lease Payment Schedule reflecting all then current adjustments, if any,
to Base Rent as of such date pursuant to this Lease (e.g., taking into account
prior Partial Prepayments). Following any such Principal Reduction Payment, the
Lease Payment Schedule shall be modified to reflect the aforesaid interest and
principal prepayment and the amounts payable under the Base Rent, Interest,
Principal, Repayment Amount/Balance, Cumulative Interest Paid and Principal Paid
and Default Rent Reimbursement columns of the Lease Payment Schedule shall be
appropriately adjusted for the quarter after the date of such Principal
Reduction Payment through the balance of the payments to be made for the term
taking into account such adjustments; and
(iv) Prior to the occurrence of the [****], Photronics
shall not have the right to prepay more than [****] of the principal balance of
the Base Rent which is payable for the period from the Rent Commencement Date
through the Qual Period End Date.
(c) Under no circumstances shall Photronics be entitled to
conveyance of fee title to the Premises prior to the occurrence of the Qual
Period End Date. Photronics
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Securities and Exchange Commission.
acknowledges that Micron's retention of ownership of the Premises at least
through the Qual Period End Date was a material inducement to Micron's agreement
to enter into this Lease and the Photronics to Micron Supply Agreement. For the
avoidance of doubt, this Section 5.3(c) supersedes and controls in the event of
any conflict or inconsistency with any other provision of this Lease.
ARTICLE VI.
TAXES
Section 6.1 Real Property Taxes
----------- -------------------
Photronics shall pay, as additional rent, all real property taxes
levied or assessed by, or becoming payable to any governmental authority having
jurisdiction, for or in respect of the Premises, for each tax period wholly
included in the period between the Lease Commencement Date and the expiration of
the term (as same may be accelerated by prepayment). All such payments shall be
made directly to the authority charged with the collection thereof not less than
ten (10) business days prior to the earlier of the last date on which the same
may be paid without interest or penalty or upon which it would otherwise be
deemed "delinquent" as provided in Section 6.3. Micron and Photronics shall use
commercially reasonable efforts to cause the Premises to be separately assessed
with the bills for real property taxes to be delivered directly to Photronics.
In the event that such bills are delivered to Micron, Micron shall promptly
deliver copies thereof to Photronics. Photronics shall provide to Micron at
least seven (7) Business Days prior to the due date for payment of such taxes, a
copy of a receipted tax xxxx or other documentary evidence reasonably
satisfactory to Micron, showing the amount of the taxes due and the payment of
same as required herein. For any fraction of a tax period included in the period
between the Lease Commencement Date and the expiration of the term (as same may
be accelerated by prepayment), Photronics shall pay to Micron, within thirty
(30) days after receipt of Micron's invoice therefor, that portion of the total
taxes levied or assessed or becoming payable which is allocable to such included
period, determined by multiplying the total taxes by a fraction whose
denominator is the number of days in the tax period and whose numerator is the
number of days in the period between the Lease Commencement Date and the
expiration of the term (as same may be accelerated by prepayment). In the event
Photronics fails to pay any real property tax xxxx before the delinquency date
thereof, Micron may, but need not, pay the same on behalf of Photronics and such
amount thereafter shall become immediately due and payable as additional rent by
Photronics to Micron upon delivery of Micron's written demand therefor. The
obligation of Photronics pursuant to this Section 6.1 shall extend to any
increase in real property taxes resulting from any reassessment of the Premises
and shall survive the expiration or termination of this Lease. For the purposes
of this Article VI, real property taxes which are levied on a fiscal year (which
is different from a calendar year) basis shall be deemed to apply one-twelfth
(1/12) to each calendar month in such fiscal year.
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Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
Section 6.2 Separate Tax Parcel
----------- -------------------
(a) In the event that the Premises is not levied and assessed as
a separate tax parcel, Micron shall use its commercially reasonable efforts to
cause the Premises to be assessed and taxed as a separate tax parcel as soon as
practicable.
(b) If the Premises is not assessed and taxed as a separate tax
parcel, then notwithstanding anything to the contrary set forth in this Article
VI, "real property taxes" shall mean, as to the Premises:
(i) That portion of the real property taxes assessed
against the land underlying the tax parcel which the square footage of the
Premises bears to the aggregate square footage of all land within the applicable
tax parcel; plus
(ii) That portion of the real property taxes assessed
against the leasehold improvements included within the tax parcel which the
valuation assigned by the taxing authorities to the leasehold improvements
included within the Premises bears to the valuation so assigned to all of the
leasehold improvements included within such tax parcel. If such separate
valuations are available from the county tax assessor, then such separate
valuations shall be conclusive. If such separate valuations are not reasonably
available to Micron, then Micron shall determine, reasonably and in good faith,
from the best information reasonably available to it, the proportion of the real
property taxes assessed against the leasehold improvements included within such
tax parcel which is attributable to the leasehold improvements upon the
Premises.
(iii) With respect to other types of taxes, a proportion
thereof based upon the assessment methodology used by the assessor, or if such
methodology cannot be used to determine Photronics' portion, then a reasonable
proportion as determined by Micron.
In the event that the Premises is not assessed and taxed as a
separate tax parcel, then real property taxes for or in respect of the Premises
shall be paid by Photronics to Micron not later than the earlier of (A) thirty
(30) days after Micron's delivery of written notice of the amount thereof and
(B) ten (10) days prior to the delinquency date therefor. Photronics shall be
solely liable for any late penalties or interest resulting from any failure to
timely pay Micron or the taxing authority. There shall be no administrative or
overhead fee payable to Micron with respect to real property taxes payable by
Photronics. Micron and Photronics acknowledge and agree that it is their intent
that real property taxes be billed to and paid directly by Photronics.
Accordingly, Micron and Photronics agree that:
(A) Each shall take all steps reasonably necessary to cause
the real property tax bills with respect to the Premises to be mailed directly
to Photronics; and
(B) Neither Party shall take any action to cause the
Premises to be taxed other than as a separate tax parcel.
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Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
Section 6.3 Other Taxes
----------- -----------
Photronics shall be responsible for and shall pay or cause to be
paid not later than ten (10) business days prior to delinquency all municipal,
county and state taxes, levies and fees of every kind and nature, including but
not limited to general or special assessments assessed during the term against
any leasehold interest, leasehold improvements, Mask Shop Equipment or other
personal property of any kind, owned by or placed in, upon or about the Premises
by Photronics or its sublessees, concessionaires, franchisees or licensees, if
any. Photronics shall cause all taxes imposed upon any personal property
situated in or on the Premises to be levied or assessed separately from the
Premises and not as a lien thereon. Upon request of Micron, Photronics shall,
not later than the delinquency date for any such tax, furnish to Micron
documentary proof of payment of said tax.
Section 6.4 Right to Contest
----------- ----------------
Provided that the Premises are separately assessed and taxed,
Photronics shall have the right, at Photronics' sole risk and cost, to contest
the amount and/or validity of the applicable real property taxes by appropriate
legal proceedings; provided, however, that said right shall be availed of by
Photronics only upon the condition that Photronics shall indemnify, defend and
hold Micron and the Premises harmless from any loss, cost or expense, including,
but not limited to, Micron's reasonable attorneys' fees, court costs and
expenses of litigation, which in any manner arise from or with respect to such
contest and upon the further condition that Photronics shall take any and all
actions, including, but not limited to, the payment of any judgment or bonding
requirement, so as to prevent the loss or forfeiture of the Premises or any part
thereof or of any other property of Micron. The foregoing shall not, however, be
deemed or construed to relieve, modify, or extend Photronics' covenant to pay
any such real property taxes at the time and in the manner provided in this
Article VI, unless such proceedings shall operate to prevent the sale of the
Premises or any part thereof or any other property of Micron or the placing of
any lien thereon or on any other property of Micron to satisfy such taxes prior
to the final determination of such proceedings. Under such circumstances, upon
the termination of such proceedings, Photronics shall promptly pay all real
property taxes, if any, then payable as the result of such proceedings and the
interest and penalties in connection therewith, and the charges accruing in such
proceedings. To the extent Micron receives any refund for any real property
taxes paid by Photronics hereunder, Micron shall promptly pay and deliver such
refund to Photronics.
ARTICLE VII.
CONDUCT OF BUSINESS BY PHOTRONICS
Section 7.1 Use of Premises
----------- ---------------
(a) Photronics shall use the Premises only for the Permitted Use
and for no other use or purpose.
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Securities and Exchange Commission.
(b) Photronics shall continuously operate the Premises for the
Permitted Use throughout the Lease term. In furtherance and not in limitation of
the foregoing obligation, Photronics hereby covenants to operate the Premises in
such a manner to [****].
(c) Photronics shall not use the Premises in violation of any
Applicable Laws, including without limitation, the certificate of occupancy
issued for the Premises. Without limitation of Photronics' obligations pursuant
to the immediately preceding sentence, subject to the provisions of Section 7.3,
Photronics shall promptly comply with Applicable Laws together with all
protective covenants and architectural standards, if any, applicable to the
Premises upon five (5) Business Days written notice from Micron or within the
time specified in any notice received from any governmental authority, whichever
is earlier, discontinue any use of the Premises which is a violation thereof.
(d) Photronics shall not do or permit anything to be done in or
about the Premises which will allow the Premises to be used for any improper,
immoral, unlawful or objectionable purpose, nor shall Photronics cause, maintain
or permit any nuisance or commit any waste in, on or about the Premises.
Photronics shall not (i) place a load upon any floor of the Premises which
exceeds the floor load per square foot which such floor was designed to carry or
(ii) violate any mandatory restrictions generally imposed by any governmental
authority with respect to conservation of energy, water, gas or electricity or
reduction of automobile or other emissions. Photronics shall not do or permit to
be done anything which will injure the Premises or invalidate any insurance
policy(ies) covering the Premises or property located therein. Photronics shall
maintain no outside storage which is not appropriately screened from the view of
the public.
(e) Photronics shall not conduct, nor permit to be conducted,
either voluntarily or involuntarily, any auction upon the Premises without first
having obtained Micron's prior written consent.
Section 7.2 Restrictions on Use
----------- -------------------
Photronics shall, at Photronics' sole cost and expense, procure
any and all governmental licenses and permits required for Photronics' use of
the Premises and shall at all times comply with all requirements of such
licenses or permits; provided, however, to the extent such permits (such as
applicable Department of Environmental Quality permits pursuant to Section
16.2(b)) shall be obtained by Micron on behalf of Photronics in the course of
Micron's Work, Photronics shall reimburse Micron for its cost and expenses
(including employee time and expense) within thirty (30) days of delivery of an
invoice therefor. Photronics shall not use or permit the use of the Premises in
any manner that will damage or deface the Premises. Photronics shall not do, or
suffer to be done, or keep or suffer to be kept, anything on the Premises or on
any property therein which will prevent the obtaining of any insurance on the
Premises or on any property therein, including, but without limiting the
generality of the foregoing, fire, all risk coverage, and public liability
insurance, or which may make void any such insurance.
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Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
Section 7.3 Contest of Requirements
----------- -----------------------
Notwithstanding the foregoing, Photronics may contest any
Applicable Law or alleged violation thereof, so long as Micron's interest in the
Premises and the Land are not thereby adversely affected and such contest may
not impact or jeopardize Photronics' ability to satisfy its obligations under
the Photronics to Micron Supply Agreement or, before the [****], any other
Transaction Documents, and Micron shall, at Photronics' request, join in such
contest if its participation is necessary and unobjectionable to Micron, but at
no expense to Micron. If any security must be posted, or any order must be
obtained to forestall compliance with such requirement pending the determination
of such contest, Photronics shall post such security or shall obtain such order
prior to commencing such contest and such action shall be a condition to
Photronics' right to contest. If such contest is finally determined adversely to
Photronics, Photronics shall promptly comply with the requirement(s) determined
to be applicable to the Premises and shall indemnify and hold Micron harmless
from all liabilities, damages, costs (including costs and attorneys' fees
incurred or awarded in such contest) and expenses occasioned by any
non-compliance by Photronics and any delay in effecting compliance, including
any delay occasioned by a contest determined adversely to Photronics.
Section 7.4 Exterior Signs and Sign Monument(s)
----------- -----------------------------------
(a) Photronics shall have sign rights for the Premises, including
both exterior signage on the Building and any monument signage placed upon any
sign monument(s) constructed by Photronics. All such signage ("Photronics'
Signage") shall be subject to the following:
(i) All Photronics' Signage shall be the sole
responsibility of Photronics, as to fabrication, construction and erection
thereof and payment of the costs thereof.
(ii) All Photronics' Signage (including location) shall be
subject to the prior written approval of Micron based upon drawings and
specifications therefor prepared by Photronics and reasonably approved by
Micron, and all Photronics' Signage shall conform to the drawings and
specifications therefor approved by Micron, which approval shall not be
unreasonably withheld or delayed.
(iii) All Photronics' Signage shall comply with all
Applicable Laws and shall be professionally done, neat and attractive and of a
quality consistent with the quality of the Building.
(iv) Photronics shall maintain, repair, remove and replace
Photronics' Signage as a part of Photronics' obligations pursuant to Section 8.2
so that Photronics' Signage is at all times maintained in a neat, clean, good
condition.
(b) Within ten (10) days after any termination of this Lease (as
provided in the last sentence of Section 4.1) or Photronics' right to possession
of the Premises pursuant hereto,
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Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
Photronics shall, at Photronics' sole cost, remove all Photronics' Signage and
repair all damage to the Building and/or the sign monument(s) caused by such
removal.
ARTICLE VIII.
MAINTENANCE, REPAIRS AND ALTERATIONS
Section 8.1 Micron's Obligations
----------- --------------------
(a) Except as provided in subsection (b) below, Micron shall not
be obligated or required at any time to maintain or repair the Premises or any
leasehold improvements thereon or bear any part of the expense of any
improvement, alteration or change of any nature in or about the Premises or any
part thereof.
(b) Notwithstanding the provisions of subsection (a) above or
anything else to the contrary contained in this Lease, for a period [****],
Micron shall, at Micron's sole cost and expense, promptly repair or replace, or
cause to be repaired or replaced, any portion of Micron's Work which shall be
materially defective. Such repair or replacement shall be commenced within a
reasonable period after Micron's receipt of written notice from Photronics of
the need for such work, but only if such notice is given within such [****] and
shall be completed regardless of any claim by Micron against any contractor
whether under a warranty or otherwise. For the purposes of this subsection:
(i) Micron may satisfy its obligation pursuant to this
subsection by causing Micron's general contractor or any subcontractor who has
provided a warranty or guaranty to perform such repair or replacement. Micron
shall use commercially reasonable efforts to obtain commercially standard
warranties under its construction contract at no additional cost therefor.
(ii) The provisions of this subsection shall not apply to
any damage to Micron's Work caused by Photronics, any employee, agent or
contractor of Photronics, any business visitor or guest of Photronics, any
vandal or any casualty (fire, wind, rain, lightning, etc.). Micron's obligations
hereunder shall be limited to defects in the original construction, repair or
replacement (without extending the original [****] warranty period) of Micron's
Work.
Upon the expiration of the [****] specified in this subsection, Micron shall,
upon request of Photronics, assign to Photronics all warranties and guaranties
received by Micron with respect to Micron's Work to the extent assignable by,
and without cost to, Micron.
Section 8.2 Photronics' Obligations
----------- -----------------------
(a) Subject to the provisions of Section 8.1 and Article X,
Photronics shall (i) from and after the Lease Commencement Date keep in good
order, condition and repair (excepting only reasonable wear and tear) all of the
Premises and all leasehold improvements thereon and every part thereof,
including the Building, Mask Shop Equipment, furnishings and other personal
property of Photronics, and all landscaped and parking areas (which shall be
kept
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Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
free of weeds and debris). Photronics shall promptly at Photronics' own cost and
expense make all necessary repairs and replacements, interior and exterior,
structural and nonstructural, ordinary and extraordinary, foreseen and
unforeseen, as necessary to maintain the Premises and all leasehold improvements
thereon and every part thereof, in good condition and, prior to the [****], such
that full Qualification can be and is maintained. Photronics shall provide
whatever treatment may be necessary, as often as may be required, to keep the
Premises and all leasehold improvements thereon and every part thereof neat and
attractive. Photronics' maintenance and repair obligations pursuant to this
subsection shall specifically include the roof and roof membrane of the
Building. In furtherance of the foregoing, Photronics shall at all times during
the term of this Lease maintain in effect a maintenance contract covering the
heating, ventilating and air-conditioning equipment serving the Building with a
maintenance firm and containing such service requirements as shall be reasonably
acceptable to Micron.
(b) If Photronics fails to perform its obligations under this
Section 8.2, Micron may at its option, after thirty (30) days written notice to
Photronics and failure of Photronics to perform such obligations within such
thirty (30) day period, enter upon the Premises and put the same in good order,
condition and repair and the cost thereof shall become due and payable as
additional rent by Photronics to Micron upon demand. Micron need not, however,
wait for the expiration of such thirty (30) day period to remedy any condition
which poses a danger to persons or property or which will or may result in the
imposition of a fine or penalty upon Micron if not cured prior to the expiration
of such period.
Section 8.3 Alterations and Additions
----------- -------------------------
(a) Photronics shall not, without the prior written consent of
Micron, which consent shall not unreasonably be withheld or delayed so long as
same is not reasonably anticipated to interfere with Photronics' continuous
operations and satisfaction of its Capacity Commitment, make any alterations,
improvements, remodeling or additions (collectively, "Alterations") to the
Premises. Notwithstanding the foregoing, any Alteration which does not affect
(i) any structural elements of the Building, (ii) any mechanical, electrical or
plumbing systems of the Building, (iii) the "Clean Room" or any support systems
or facilities therefor (i.e. only impact the "office" portion of the Building),
and (iv) are commercially reasonably estimated to cost [****] for all work
pertaining to such Alteration and such Alteration does not otherwise affect the
matters set forth in (i), (ii), or (iii) above (the "Permitted Alterations"),
may be performed upon seven (7) days' prior written notice to Micron. All
Alterations made by Photronics shall be done with diligence, in a good and
workmanlike manner, consistent with the construction quality of Micron's Work
and in compliance with all Applicable Laws and the requirements of this Lease.
The cost of any Alterations shall be paid or discharged by Photronics so that
the Premises and all leasehold improvements thereon shall at all times be free
of liens resulting therefrom. Photronics shall supply to Micron, promptly upon
completion thereof, a set of as-built drawings therefor on mylar for all
Alterations.
(b) Other than leasehold improvements, all installations by
Photronics, including Mask Shop Equipment and all other personal property of
Photronics placed in or on the Premises are herein referred to as "Photronics'
Property." All Photronics Property shall
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Securities and Exchange Commission.
remain the sole and exclusive property of Photronics subject to Micron's right
to purchase and/or obtain a security interest in the Mask Shop Equipment under
Section 14.2. Except as expressly provided to the contrary in this Article VIII,
all leasehold improvements shall be the property of Micron through the Lease
term. Such leasehold improvements shall remain upon and be surrendered with the
Premises at any termination of this Lease in accordance with the provisions of
this Lease relating to termination hereof other than in connection with a
conveyance of fee title to the Premises to Photronics; provided, however, if
requested instead Photronics shall remove any leasehold improvements at
Photronics' sole cost within ten (10) days following any such termination and
restore the Premises to substantially the same condition as the Premises existed
at the time Micron tendered delivery of possession thereof to Photronics, less
reasonable wear and tear.
(c) Photronics shall promptly in writing notify Micron of the
filing of any mechanics' lien against the Premises arising out of work performed
by or for Photronics and shall cause the same to be removed consistent with the
provisions of Section 17.12.
(d) The approval by Micron of any specifications, working
drawings or other plans with regard to Photronic's Work, and including, without
limitation, Alterations to be made by Photronics of or to the Premises or with
respect to the Mask Shop Equipment or other Photronics' Improvements, or at any
time during the term of this Lease, shall not be deemed to be a representation
or warranty by Micron as to the adequacy or sufficiency of such specifications,
working drawings or other plans or of the improvements or construction
contemplated thereby for any use or purpose. By its approval thereof, Micron
assumes no liability or responsibility therefor, or for any defect in any
improvements, equipment, or construction made pursuant thereto.
(e) Before commencement of any work of improvement in the
Premises, Photronics shall give Micron fifteen (15) days written notice thereof,
specifying precisely the expected date of commencement. For the period from ten
(10) days prior to commencement of such work and during the performance thereof
(or such other period required by Applicable Law), Micron may maintain in the
Premises or otherwise post where and as required by Applicable Law such notices
of non-responsibility or other notices as may be necessary to protect Micron
against liability for liens and claims.
ARTICLE IX.
INSURANCE; INDEMNITY
Section 9.1 Liability Insurance
----------- -------------------
Photronics shall at all times from and after the Lease
Commencement Date (or any such earlier date on which Photronics shall have the
right to access the Premises for any purpose), and at its sole cost and expense,
for the protection of Photronics and Micron, as their interests may appear,
maintain in full force and effect a policy or policies of insurance which afford
the following coverages:
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Securities and Exchange Commission.
(a) Worker's Compensation in the statutorily required amount,
including employer's liability with a liability limit of not less than [****]
per occurrence.
(b) Comprehensive General Liability Insurance or Commercial
Liability Insurance with an aggregate liability amount not less than [****]
combined single limit for both bodily injury and property damage, including
blanket contractual liability (including Photronics' indemnification obligation
under Section 9.5 subject only to commercially standard exclusions and
limitations to such indemnification coverage), broad form property damage,
personal injury, completed operations, products liability and host liquor
liability. Such coverage shall be provided by a combination of a primary and/or
excess liability policy. The liability insurance policy required to be
maintained by Photronics pursuant to this subsection shall be on an occurrence
(as opposed to claims made) basis.
(c) Business Automobile Liability insurance providing bodily
injury and property damage liability coverage for not less than [****] each
accident limit. Business Automobile Liability insurance shall be written on a
standard ISO policy form, or an equivalent form, providing coverage for
liability arising out of owned, hired, or non-owned vehicles in connection with
Photronics' performance of the Photronics' Work as well as operations upon the
Premises.
Section 9.2 Casualty Insurance - Fixtures, Mask Shop Equipment,
------------------------------------------------------------------
Personal Property and Photronics' Improvements
----------------------------------------------
(a) Photronics shall at all times from and after the Lease
Commencement Date (or any such earlier date on which Photronics shall have the
right to access the Premises for any purpose), and at Photronics' sole cost and
expense, maintain in effect policies of insurance covering all Photronics'
Property located in, on or about the Premises, including without limitation the
Mask Shop Equipment, fixtures, furnishings, equipment, furniture, inventory and
stock in trade, in an amount not less than their full replacement value,
providing protection against any peril included within the classification "All
Risk," including but not limited to insurance against fire, sprinkler leakage,
vandalism and malicious mischief, and flood coverage and earth movement.
Sublimits, if any, would be applied to the leasehold improvements as described
in Section 9.2(b). The insurance required by this subsection shall be the
primary insurance with respect to the property covered thereby. Micron shall not
be named as a loss payee with respect to property damage insurance for
Photronics' Property. Photronics is responsible for all deductibles or
self-insurance reserve.
(b) Photronics shall at all times from and after the Lease
Commencement Date (or any such earlier date on which Photronics shall have the
right to access the Premises for any purpose) during the term maintain in effect
policies of insurance covering all leasehold improvements, including without
limitation, the Building and all leasehold improvements, providing protection
against any risk included within the classification "All Risk," including all
coverages listed in Section 9.2(a), such insurance to be in an amount no less
than the full replacement value of such Improvements and naming Micron as loss
payee for such interest (other than under Section 9.2(a)). The deductible or
self-insurance reserve for the insurance
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pursuant to Sections 9.1 and this Section 9.2 shall not exceed [****] per
occurrence. The insurance required by this subsection shall be the primary
insurance with respect to the property covered thereby. Micron shall be named as
a loss payee and additional insured with respect to the insurance covering the
Building and all leasehold improvements.
(c) Property Insurance Proceeds shall be payable as provided in
Article X.
Section 9.3 Insurance Policies
----------- ------------------
(a) Micron, and any other persons designated by Micron and having
an insurable interest in the Premises, shall be additional insureds as their
interests may appear pursuant to the policies required by Section 9.1(b) and (c)
and Section 9.2. From and after the Lease Commencement Date, the insurance
required by Sections 9.1 and 9.2 shall be the primary insurance as respects
Micron (and any other additional insureds designated by Micron) and not
contributory with any other available insurance. The policy or policies
providing the coverage required by these Sections (other than Section 9.1(a))
shall contain an endorsement providing, in substance, that "such insurance as is
afforded hereby for the benefit of Micron and any additional insureds designated
by Micron shall be primary and any insurance carried by Micron and any
additional insureds or insureds designated by Micron shall not be contributory."
In no event shall the limits of any coverage maintained by Photronics pursuant
to Sections 9.1 and 9.2 be considered as limiting the liability of Photronics
pursuant to this Lease.
(b) All insurance required to be carried by Photronics shall be
with companies rated A:VIII, or better, in the then most recent version of
Best's Key Rating Guide. Photronics shall deliver to Micron at least ten (10)
days prior to the time such insurance is first required to be carried, and
thereafter at least ten (10) days prior to the expiration or renewal date of any
policy so maintained, copies of the policies or certificates evidencing such
insurance. All policies and certificates delivered pursuant to this Section
shall contain liability limits not less than those set forth in Sections 9.1 and
9.2, shall list the additional insureds and shall specify all endorsements and
special coverages required by Sections 9.1 and 9.2. Each such policy shall
contain a provision (by endorsement or otherwise) requiring not less than thirty
(30) days written notice to each Party prior to any cancellation, non-renewal or
material amendment thereof. Any insurance required to be maintained hereunder
may be provided by means of a so-called "blanket" policy, so long as the
Premises is specifically covered therein (by rider, endorsement or otherwise)
and the policy otherwise complies with the provisions of this Lease. If, on
account of Photronics' failure to comply with any provision of this Article IX,
Micron or any other additional insured is adjudged a co-insurer by its insurance
carrier, then any loss or damage to Micron or such additional insured shall
sustain by reason thereof shall be borne by Photronics and shall be paid by
Photronics upon receipt of a xxxx therefor and evidence of such loss.
Section 9.4 Waiver of Subrogation
----------- ---------------------
Micron and Photronics each hereby waives any and all rights of
recovery against the other, and against the partners, officers, employees,
agents, representatives, customers and business visitors of such other Party,
for loss of or damage to such waiving Party or its property or the property of
others under its control, arising from any cause insured against under any
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Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
policy of insurance required to be carried by such waiving Party pursuant to the
provisions of this Lease (or any other policy of insurance carried by such
waiving Party in lieu thereof) at the time of such loss or damage. The foregoing
waiver shall be effective whether or not a waiving Party shall actually obtain
and maintain the insurance which such waiving Party is required to obtain and
maintain pursuant to this Lease (or any substitute therefor). Each Party shall,
upon obtaining the policies of insurance which it is required to maintain
hereunder, give notice to its insurance carrier or carriers that the foregoing
mutual waiver of subrogation is contained in this Lease.
Section 9.5 Indemnity
----------- ---------
To the fullest extent permitted by law, and subject to the last
sentence of this subsection, Photronics shall indemnify, defend and hold Micron,
its officers, agents, employees and partners harmless from and against any
Liabilities or expense (including but not limited to loss of life and reasonable
attorneys' fees and costs of defense) which may result from the use or
occupation of the Premises or any Improvements thereon by Photronics, its
employees, agents, invitees and contractors or the breach of the provisions of
this Lease by Photronics, its agents, employees, contractors, or other persons
claiming under Photronics. Such indemnification shall extend to Liabilities
arising from any activity, work, or thing done, permitted or suffered by
Photronics or any such person in or about the Premises and shall further extend
to any Liabilities arising from any default in the performance of any obligation
on Photronics' part hereunder. "Liabilities" shall include all suits, actions,
claims and demands and all expenses (including attorneys' fees and costs of
defense) incurred in or about any such Liability and any action or proceeding
brought thereon. It is understood and agreed that payment shall not be a
condition precedent to enforcement of the foregoing indemnification obligations.
Photronics' defense obligations hereunder shall include the obligation, upon
demand, to defend Micron against any claim or action of the types herein
specified by legal counsel reasonably satisfactory to Micron. Notwithstanding
anything to the contrary in this Lease, this subsection shall not apply to any
damage or injury which Photronics establishes in a court of competent
jurisdiction was proximately caused by the gross negligence or willful
misconduct of Micron, its agents, employees or contractors.
Section 9.6 Exemption of Micron
----------- -------------------
Neither Micron nor its agents or employees shall be liable for
any loss of any property by theft nor for injury or damage which may be
sustained by the person, goods, wares, or property of Photronics, its employees,
invitees or customers or any other person in or about the Premises, or for loss
or interruption of business, caused by or resulting from any peril which may
affect the Premises, including, but not limited to fire, steam, electricity,
gas, water or rain, which may leak or flow from or into any part of the
Premises, or from the breakage, leakage, obstruction or other defects of the
pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting
fixtures of the same, whether such damage or injury results from conditions
arising upon the Premises, or from other sources. Photronics, as a material
consideration to Micron, assumes all risk of damages to property and injury to
or death of persons in or about the Premises from any cause. Notwithstanding
anything to the contrary herein, this Section 9.6 shall not apply
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Securities and Exchange Commission.
to the extent of any damage or injury which Photronics establishes in a court of
competent jurisdiction was proximately caused by the gross negligence or willful
misconduct of Micron, its employees or agents.
Section 9.7 Notices
----------- -------
Photronics shall give prompt notice to Micron in case of fire or
casualty in, on, under or to the Premises.
Section 9.8 Builder's Risk Insurance to be Maintained by Micron
----------- ---------------------------------------------------
From and after the date of "ground breaking" upon the Land
through the Date of Substantial Completion for Rent Commencement, Micron (or, at
Micron's election, Micron's general contractor) shall provide "All Risk"
Builder's Risk Insurance with a limit sufficient to cover property values of the
Building and of the materials stored upon the Land relating to Micron's Work and
destined to be incorporated into the Premises naming Photronics as an additional
insured. The cost of such insurance shall be included in Development Costs.
ARTICLE X.
DAMAGE OR DESTRUCTION AND APPROPRIATION
Section 10.1 Damage or Destruction
------------ ---------------------
(a) Damage to the Premises.
(i) Subject to the provisions of this Article X, in the
event of any Casualty from and after the Lease Commencement Date, Photronics
shall give Micron immediate oral and prompt written notice thereof and Micron
shall give Photronics similar notice in the event of Casualty prior to the Lease
Commencement Date.
(ii) If any Casualty occurs, then: (a) no rent shall xxxxx;
(b) this Lease shall not terminate or be impaired except as provided in Section
10.3; (c) the Party or Parties designated in Section 10.1(b) shall promptly
Restore as provided in Section 10.1(b); and (d) Photronics shall not be released
from any of its liabilities or obligations hereunder by reason of damage to or
destruction of the Premises, the Improvements or Photronics' Property.
Restoration for which Photronics is responsible shall be performed by a general
contractor approved by Micron.
(b) Restoration.
(i) Prior to Lease Commencement Date. Unless a Substantial
Casualty or Substantial Appropriation has occurred and the Lease is terminated
pursuant to Section 10.3, from the execution of this Lease until the Lease
Commencement Date, Micron shall have the sole right and authority to adjust any
insurance or Appropriation claim in connection with Restoration.
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Securities and Exchange Commission.
(ii) Lease Commencement Date through date of Substantial
Completion for Rent Commencement. Unless a Substantial Casualty or Substantial
Appropriation has occurred and the Lease is terminated pursuant to Section 10.3,
from the Lease Commencement Date until the date of Substantial Completion for
Rent Commencement, during which period the casualty insurance coverages required
of both Parties under Article IX are to be in place, the Parties shall jointly
and in good faith adjust any insurance and Appropriation claims in connection
with Restoration and shall similarly agree upon the allocation of responsibility
for the Restoration between the Parties (using the original specification of
Micron Work and Photronics' Work as a guideline therefor).
(iii) From and After date of Substantial Completion for
Rent Commencement. Unless a Substantial Casualty or Substantial Appropriation
has occurred and the Lease is terminated pursuant to Section 10.3, from and
after the date of Substantial Completion for Rent Commencement, Photronics shall
have the sole right and authority to adjust any insurance or Appropriation claim
in connection with Restoration.
(iv) In the event of any Casualty or Appropriation under
Sections 10.1 (b)(ii) or (iii) for which the Restoration Funds (or Photronics'
portion of the cumulative Restoration Funds) exceeds [****], Photronics shall
direct its insurers (or governmental authority in the case of Appropriation) to
disburse all Restoration Funds payable to Photronics (including Photronics'
deficiency deposit) to the Depository to be held in an interest bearing joint
order escrow account to be held and disbursed subject to a written construction
escrow and disbursement agreement between the Parties and the Depository. Any
Restoration Funds paid directly to Photronics (or, prior to the date of
Substantial Completion for Rent Commencement, paid directly by Micron) shall be
held in trust by Photronics (or, as applicable, to Micron) to be applied for
Restoration. To obtain each disbursement from the Depository, Photronics shall
deliver to the Depository:
(A) A certificate of Photronics' licensed architect,
confirming that in such architect's professional judgment: (a) the sum then
being requested is then properly due and payable to contractors, subcontractors,
or other Persons for Restoration; (b) Restoration is proceeding in compliance
with the applicable plans and specifications (being those for the original
construction, equipment, and certification of the Premises); (c) the sum being
requested does not exceed the amount then due and payable; (d) except in the
case of the final disbursement of Restoration Funds, the remaining Restoration
Funds after disbursement are reasonably anticipated to suffice to pay for the
remaining Restoration yet to be performed; and (e) in the case of the final
disbursement of Restoration Funds, Photronics has substantially completed
Restoration and obtained a certificate of occupancy for the Restoration to the
extent Applicable Law requires, the Premises have been re-certified and
Re-qualification has been achieved or reaffirmed, and delivered (or
simultaneously delivers in exchange for payment) final lien waivers from all
Persons otherwise entitled to claim a Prohibited Lien because of the
Restoration;
(B) For any disbursement (or group of disbursements)
above [****] in aggregate or if not previously delivered to Depository within
the preceding five days,
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Securities and Exchange Commission.
evidence reasonably satisfactory to the Depository that no Prohibited Lien
exists, except any to be fully paid from the current disbursement;
(C) Progress lien waivers for Restoration completed
and paid for through the date of the preceding disbursement; and
(D) Such other documents, deliveries, certificates,
and information as Micron or the Depository reasonably requires.
(v) If the Casualty or Appropriation occurs prior to the date of Substantial
Completion for Rent Commencement, Micron shall have no obligation to Restore
or consent to Photronics' pursuit of Restoration if the combined cost of
Restoration and completion of Micron's Work are anticipated to exceed the
budgeted amount for Micron's Work upon which Micron commenced the Micron Work,
unless Photronics shall agree to pay the difference (which shall be escrowed
with the Depository as Restoration Funds as a condition to Micron proceeding)
between the Restoration Funds and the aforesaid budgeted amount for Micron's
Work (as may be adjusted, if necessary, as a result of the Casualty). During
the period between the Lease Commencement Date and the date of Substantial
Completion for Photronics' Installation, Photronics shall be obligated to
Restore Photronics' Work regardless of the availability of Restoration Funds
if Micron, as provided above, determines it shall Restore Micron's Work. Other
than pursuant to Section 10.3 in the case of termination upon Substantial
Casualty, in all events (and irrespective of the sufficiency of Restoration
Funds), from and after the date of Substantial Completion for Rent
Commencement, Photronics shall be obligated to complete Restoration. In all
instances, if the Restoration Funds shall be insufficient to pay the entire
cost of Restoration, Photronics shall be obligated to pay any deficiency.
Provided all Micron Work is completed and paid in full, upon the completion of
Restoration and payment in full therefor, any Restoration Funds then remaining
shall be allocated to Photronics to reimburse Photronics for payment of such
deficiency, unless any deficiency was paid by Micron, in which case the
remaining Restoration Funds shall be paid to Micron to fully reimburse Micron
before any disbursement to Photronics.
Section 10.2 Appropriation.
------------ --------------
In the event of a temporary or permanent Appropriation during the
term of this Lease, the rights and obligations of Micron and Photronics with
regard to such Appropriation, including rights to all Appropriation Awards shall
be as provided in this Article X.
(a) In the event of an Appropriation, (a) no rent shall xxxxx;
(b) this Lease shall not terminate or be impaired except as provided in Section
10.3; and (c) the Party or Parties designated in Section 10.1(b) shall promptly
Restore as provided in Section 10.1(b) regardless of cost or availability of
Appropriation Awards. In the event of a Substantial Appropriation, either Party
may terminate this Lease (subject to the requirement under Section 10.3 with
respect to Photronics' right to terminate) and the rents and other charges
payable by Photronics hereunder shall be apportioned to the Appropriation
Effective Date. The termination date of this Lease shall be as set forth in
Section 10.3(b).
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Securities and Exchange Commission.
(b) If this Lease may not be terminated upon the occurrence of
the Appropriation or is not terminated in the event of a Substantial
Appropriation, the Premises shall be promptly Restored (including all
Improvements and Photronics' Property) so that upon Restoration the Premises
shall be substantially the same quality and character as existed immediately
prior to such Appropriation and re-certification of the Premises and
re-Qualification shall be achieved. There shall be no adjustment in the rent
payable by Photronics hereunder as the Base Rent is not computed based upon the
floor area of the Premises leased. Such Restoration shall be the sole
responsibility of Photronics both as to performance and payment of the costs
thereof. Photronics shall pay any deficiency above any Appropriation Awards
necessary to Restore the Premises as required herein. Photronics shall be
required to Restore in accordance with plans and specifications approved by
Micron if the Building shall be altered as a result of the Appropriation and the
Restoration shall be performed by a general contractor approved by Micron.
Restoration following an Appropriation shall include the obligation to obtain
re-certification of the Premises and re-Qualification.
(c) Appropriation Awards shall be allocable to Photronics for
Restoration and shall be paid directly to Photronics or deposited with a
Depository on the same terms and conditions as applicable to Restoration Funds
under Section 10.1(b). Any Appropriation Awards in connection with a Substantial
Casualty following which this Lease is terminated pursuant to Section 10.3(a)
shall be allocated between Micron and Photronics in the manner provided in
Section 10.3(b).
(d) A sale by Micron to any authority having the power of eminent
domain, either under threat of Appropriation or while Appropriation proceedings
are pending, shall be deemed an Appropriation for all purposes under this
Article X.
Section 10.3 Termination of Lease upon Substantial Casualty or
------------ -------------------------------------------------
Substantial Appropriation.
--------------------------
(a) Notwithstanding the provisions of Section 10.1 or Section
10.2, both Micron and Photronics shall have the option to terminate this Lease
in the event of a Substantial Casualty or Substantial Appropriation, as
applicable; provided, however, that a condition to Photronics' exercise of such
termination right shall be payment to Micron of an amount equal to [****].
(b) If either Party elects to terminate this Lease pursuant to
this Section 10.3, then:
(i) This Lease shall terminate in the event of a
Substantial Casualty upon the last day of the calendar quarter in which such
Party exercises its termination option, and, in the event of Substantial
Appropriation, the last day of the calendar quarter in which the Appropriation
Effective Date occurs.
(ii) In the event of a Substantial Casualty, the Parties
shall jointly adjust the insurance claims relating to the Loss; and in the event
of a Substantial Appropriation, the Parties shall jointly prosecute claims for
all Appropriation Awards
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Securities and Exchange Commission.
irrespective of whether a particular award would relate to the fee estate,
leasehold estate, Improvements, Photronics' Property or other interests or
property for which compensation may be paid in connection with the Substantial
Appropriation.
(iii) The Restoration Funds or Appropriation Awards, as
applicable, shall be allocated and paid as follows:
(A) First, Micron shall receive Property Insurance
Proceeds or Appropriation Awards, as applicable, in an amount equal to the
"Prepayment Amount/Balance" designated in the then current Lease Payment
Schedule (taking into account any adjustments thereto to such date) for the
first Applicable Lease Prepayment Date occurring after (x) the date of the
Substantial Casualty (in event of Substantial Casualty) and (y) the
Appropriation Effective Date (in event of Substantial Appropriation)); and
(B) Second, subject to the proviso of Section
10.3(a), Photronics shall receive any remaining Property Insurance Proceeds or
Appropriation Awards, as applicable.
(c) In the event either Party elects to terminate in the event of
a Substantial Casualty or Substantial Appropriation, provided that the
requirements of Section 10.3(a) and 10.3(b) shall have been satisfied, and (as
provided in Section 5.3(c)) the Qual Period End Date shall have occurred, then,
upon thirty (30) days' prior written notice of its request to have fee title to
the Premises conveyed, Micron shall deliver the Special Warranty Deed to
Photronics and the Parties shall otherwise enter into the Closing Documents as
contemplated under Section 4.3(a).
Section 10.4 No Micron Liability for Casualty or Appropriation.
------------ -------------------------------------------
Photronics shall have no claim against Micron for any damage or
loss suffered by Photronics by reason of any Casualty or Appropriation.
Photronics hereby waives the provisions of any statute, law or judicial decision
now or hereafter in effect contrary to the obligations of Photronics under this
Article X or which relieve Photronics therefrom.
ARTICLE XI.
ASSIGNMENT AND SUBLETTING
Section 11.1 Micron's Rights
------------ ---------------
(a) [****]. In no event shall Photronics hypothecate, encumber or
grant any security interest in the leasehold estate in the Premises created by
this Lease. Consent by Micron to one or more assignments of this Lease or to one
or more sublettings of the Premises shall not operate to exhaust Micron's rights
under this Section 11.1. The voluntary or other surrender of this Lease by
Photronics or a mutual cancellation hereof shall not work a merger, and shall,
at the option of Micron, terminate all or any existing subleases or subtenancies
or shall operate as an assignment to Micron of such subleases or subtenancies.
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Securities and Exchange Commission.
(b) In the event that this Lease is assigned to any person or
entity pursuant to the provisions of the Code, all consideration payable or
otherwise to be delivered in connection with such assignment shall be paid or
delivered to Micron, shall be and remain the exclusive property of Micron and
shall not constitute property of Photronics or of the estate of Photronics
within the meaning of the Code. Any consideration constituting Micron's property
pursuant to the immediately preceding sentence not paid or delivered to Micron
shall be held in trust for the benefit of Micron and shall be promptly paid or
delivered to Micron.
(i) Notwithstanding anything to the contrary contained in
this Section 11.1, provided [****], Photronics shall comply and shall make the
assignee comply with all of the following as are applicable:
(A) The use of the Premises shall continue to be the
Permitted Use.
(B) The assignee shall assume or otherwise confirm
that Photronics and such assignee remain liable for the obligations of
Photronics by means of a written agreement in form and substance reasonably
satisfactory to Micron.
(C) Photronics shall not be released from any of the
obligations of the tenant hereunder, whether accruing prior to or subsequent to
the effective date of such transfer.
(D) At least thirty (30) days prior to the effective
date of [****], Photronics shall notify Micron in writing of the effective date
of the transaction, the name of the entity acquiring the controlling interest in
Photronics or with whom Photronics is being merged, the facts which bring such
transaction within the scope of this subsection and any change in the address
for notices to tenant pursuant to this Lease. Such notice shall be accompanied
by any executed agreement required pursuant to clause (B) above. Notwithstanding
the foregoing, if a Permitted Photronics Change in Control is in connection with
an unsolicited tender offer or proxy contest, then Photronics will provide
notice to Micron of such proposed Change in Control as promptly as practicable
but in no event more than two (2) Business Days following the commencement of
such tender offer or the notice to Photronics of such proxy contest.
Section 11.2 No Release of Photronics
------------ ------------------------
No sublease, assignment or other transfer, even with the consent
of Micron, shall relieve Photronics of its obligation to pay the rent and to
perform all of the other obligations to be performed by Photronics hereunder.
The acceptance of rent by Micron from any other person shall not be deemed to be
a waiver by Micron of any provision of this Lease or to be a consent to any
assignment, sublease or transfer. The foregoing restrictions shall be binding
upon any assignee or subtenant to which Micron has consented. Any sale,
assignment, mortgage, transfer of this Lease or subletting which does not comply
with the provisions of this Article XI shall be void. If any assignee defaults
in any performance due hereunder, Micron may proceed directly against Photronics
without exhausting its remedies against such assignee.
31
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Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
ARTICLE XII.
RESERVED
ARTICLE XIII.
UTILITY SERVICES
Section 13.1 Utility Charges
------------ ---------------
Photronics shall contract for and pay, directly to the purveyors
of such services, all charges, surcharges, taxes and other fees for gas, water,
sanitary and storm sewer, electricity, telephone and other utility services
furnished to the Premises subsequent to the Lease Commencement Date and all fees
for installation of any facilities to supply such services or for connection by
Photronics to any facilities of the purveyors of such services. Notwithstanding
the foregoing, it is understood and agreed that installation and connection fees
consistent with the Existing Mask Shop may be paid by Micron as a part of
Development Costs. Moreover, billing for utility services to the Premises shall
initially be to Micron (with the service bills included in Development Costs)
and Photronics shall be required to change such xxxxxxxx to Photronics.
Photronics shall effect such change on the Lease Commencement Date or as soon
thereafter as possible. Pending such changeover, service xxxxxxxx shall remain
in Development Costs or if not included therein constitute additional rent
hereunder payable within thirty (30) days of invoice from Micron; upon affecting
such changeover, Photronics shall pay such service xxxxxxxx directly to the
service purveyors. If any such charges are not paid when due Micron may, but
shall not be obligated to, pay the same, and any amount so paid by Micron shall
become due to Micron from Photronics as additional rent upon presentation by
Micron of an invoice therefor.
Section 13.2 Interruption of Service
------------ -----------------------
Micron shall not be liable for damages or otherwise for any
failure or interruption of any utility service being furnished to the Premises
and no such failure or interruption shall entitle Photronics to terminate this
Lease or to an abatement of rent hereunder.
ARTICLE XIV.
DEFAULTS AND REMEDIES
Section 14.1 Defaults
------------ --------
The occurrence of any one or more of the following events shall
constitute a "Default" by Photronics:
(a) The failure by Photronics to make any payment of Base Rent,
additional rent, or other payment required to be made by Photronics hereunder,
as and when due, where such failure shall continue for a period of ten (10) days
after the due date.
(b) The failure by Photronics to observe or perform any of the
express covenants or provisions of this Lease to be observed or performed by
Photronics, other than as specified in this Section 14.1, where such failure
shall continue for a period of thirty (30) days
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Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
after written notice thereof from Micron to Photronics; provided, however, that
any such notice shall be in lieu of, and not in addition to, any notice required
under Applicable Laws; and provided further, that if the nature of Photronics'
default is such that more than thirty (30) days are reasonably required for its
cure, then Photronics shall not be deemed to be in default if Photronics shall
commence such cure promptly upon notice from Micron and thereafter diligently
prosecute such cure to completion within ninety (90) days after such written
notice.
(c) (i) The making by Photronics of any general assignment for
the benefit of creditors; (ii) the filing by or against Photronics of a petition
to have Photronics adjudged a "Debtor" or a petition for reorganization or
arrangement under any law relating to bankruptcy (unless, in the case of a
petition filed against Photronics, the same is dismissed within sixty (60)
days); (iii) the appointment of a trustee or receiver to take possession of
substantially all of Photronics' assets located at the Premises or of
Photronics' interest in this Lease, where possession is not restored to
Photronics within sixty (60) days; (iv) the attachment, execution or other
judicial seizure of substantially all of Photronics' assets located at the
Premises or of Photronics' interest in this Lease, where such seizure is not
discharged within sixty (60) days; or (v) Photronics' convening of a meeting of
substantially all of its creditors for the purpose of effecting a moratorium
upon or composition of its debts.
(d) The failure by Photronics to comply with the requirements of
Section 16.3, Section 17.1 or Section 17.12 hereof.
(e) [****].
(f) [****].
(g) [****].
(h) [****].
Section 14.2 Remedies
------------ --------
(a) In the event of any Default by Photronics, in addition to any
other remedies available to Micron at law or in equity, including such remedies
as provided by Applicable Laws, Micron may terminate this Lease and Photronics
shall immediately surrender possession of the Premises to Micron. In the event
of such termination of this Lease:
(i) Micron shall be entitled to recover from Photronics all
amounts which Micron is entitled to recover pursuant to Applicable Laws,
including, but not limited to any amount reasonably necessary to compensate
Micron for all the detriment proximately caused by Photronics' failure to
perform its obligations under this Lease or which in the ordinary course of
things would be likely to result therefrom, specifically including, but not
limited to, the cost of recovering possession of the Premises, expenses of
reletting, including reasonable brokerage commissions and any necessary repair,
renovation and alteration of the Premises, reasonable attorneys' fees, and any
other reasonable costs; and
33
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Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
(ii) Micron shall, upon the first day of the calendar
quarter following Micron's notice to Photronics of its election to terminate
this Lease following such Default, pay to Photronics the following amounts:
[****]. In the event of such election, Photronics shall, at least two (2)
Business Days' prior to the effective date of such termination purge all
Photronics' customer information from all systems, files and equipment located
upon the Building and Micron agrees to promptly turn over to Photronics and not
thereafter use any such customer information it may subsequently find.
Photronics indemnity under this Lease shall extend to any such customer claims
resulting from Photronics failure to so purge this information and such
indemnity shall survive the termination of this Lease without any limitation. In
the event of Micron's election of the remedy set forth in this Section
14.2(a)(ii) and Photronics compliance with its obligation under this Section
14.2(a)(ii), Micron shall, upon consummation of the transfers contemplated
herein (including any applicable bills of sale, lease assignments, etc.) in form
and substance satisfactory to Micron, waive its claim for recovery of any
unamortized Base Rent payable under this Lease from and after the effective date
of Lease termination.
(b) In any action for unlawful detainer commenced by Micron
against Photronics by reason of any Default hereunder, the reasonable rental
value of the Premises for the period of the unlawful detainer shall be deemed to
be the amount of Base Rent and additional rent reserved in this Lease for such
period, unless Micron or Photronics shall prove to the contrary by competent
evidence.
(c) The rights and remedies reserved to Micron herein, including
those not specifically described, shall be cumulative, and except as provided by
Idaho statutory law in effect at the time, Micron may pursue any or all of such
rights and remedies, at the same time or otherwise.
(d) No delay in exercising or omission to exercise by Micron of
any right or remedy shall be or be construed as a waiver of such right or remedy
or of any Default by Photronics hereunder. The acceptance by Micron of any rent
hereunder shall not be a waiver of any preceding breach or Default by Photronics
of any provision hereof, other than the failure of Photronics to pay the
particular rent accepted, regardless of Micron's knowledge of such preceding
breach or Default at the time of acceptance of such rent, or a waiver of
Micron's right to exercise any remedy available to Micron by virtue of such
breach or Default. The acceptance of any payment from a debtor in possession, a
trustee, a receiver or any other person acting on behalf of Photronics or
Photronics' estate shall not waive or cure a Default under Section 14.1(c). The
term "rent" as used in Sections 14.1 and 14.2 shall include the Base Rent,
additional rent and all other sums required to be paid by Photronics pursuant to
this Lease.
Section 14.3 Determination of Rent
------------ ---------------------
For the purposes of this Article XIV, the rent due for any
calendar quarter after re-entry by Micron shall be determined in the manner
provided in Section 14.2(b).
34
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Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
Section 14.4 Default by Micron
------------ -----------------
Micron shall not be deemed to be in default in the performance of
any obligation required to be performed by it hereunder unless and until it has
failed to perform such obligation within thirty (30) days after written notice
by Photronics to Micron specifying wherein Micron has failed to perform such
obligation. Provided, however, that if the nature of Micron's obligation is such
that more than thirty (30) days are required for its performance then Micron
shall not be deemed to be in default if it shall commence such performance
promptly upon notice from Photronics and thereafter diligently prosecute the
same to completion. Photronics' remedies for Micron's default shall be limited
to suit or action and shall not extend to withholding or offsetting rent or
withholding of any performance to be undertaken by or on behalf of Photronics
hereunder or under any other Transaction Document.
Section 14.5 Expense of Litigation
------------ ---------------------
If either Party incurs any expense, including reasonable
attorneys' fees, in connection with any action or proceeding instituted by
either Party by reason of any default or alleged default of the other Party
hereunder or for a declaration of the rights and obligations of the Parties
hereunder, the Party prevailing in such action or proceeding shall be entitled
to recover its reasonable expenses from the other Party. For the purposes of
determining what expenses and fees are reasonable, the court shall look to the
nature of the proceeding and the issues and scope of the proceeding, and shall
not be bound by any court schedule or guideline which purports to establish the
amount of expenses or fees to be awarded based upon the nature of the
proceeding, the size of the award or similar standards.
Section 14.6 Holding Over
------------ ------------
Neither Photronics nor anyone claiming under Photronics shall
have any right to remain in possession of the Premises or any part thereof after
any termination of this Lease. Micron shall have all rights and remedies,
including of re-entry, as provided hereunder or under Applicable Law.
Section 14.7 Micron's Rights
------------ ---------------
All covenants and agreements to be performed by Photronics under
this Lease shall be performed by Photronics at Photronics' sole cost and expense
and without any abatement of rent. If Photronics fails to pay any sum of money,
other than rent, required to be paid by it or fails to perform any other act on
its part to be performed, and such failure continues beyond the grace period, if
any, set forth in the Article providing for such obligation, then in addition to
any other remedies provided herein Micron may, but shall not be obligated to do
so, without waiving or releasing Photronics from any obligations of Photronics,
make any such payment or perform any such other act on Photronics' part.
Micron's election to make any such payment or perform any such act on
Photronics' part shall not give rise to any responsibility of Micron to continue
making the same or similar payments or performing the same or similar acts.
Photronics shall, within ten (10) days after written demand therefor by Micron,
reimburse Micron for all sums so paid by Micron and all necessary incidental
costs, together with interest
35
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
thereon at the rate determined under Section 17.5, accruing from the date of
such payment by Micron and the late performance charge provided therein; and
Micron shall have the same rights and remedies in the event of failure by
Photronics to pay such amounts as Micron would have in the event of a default by
Photronics in payment of rent.
Section 14.8 Third-Party Litigation
------------ ----------------------
Should Micron, without fault on the part of Micron, be made a
party to any litigation instituted by Photronics or by any third-party against
Photronics or by or against any person holding under or using the Premises under
license from Photronics, or for the foreclosure of any lien for labor or
material furnished to or for Photronics or any such other person or arising out
of any act or transaction of Photronics or of any such other person, Photronics
shall save and hold Micron harmless from any judgment rendered against Micron or
the Premises, and all costs and expenses, including reasonable attorneys' fees,
incurred by Micron in or in connection with such litigation.
ARTICLE XV.
HAZARDOUS MATERIALS
Without limiting the provisions of Sections 7.1 and 7.2 of this
Lease and except as otherwise provided in this Article XV with respect to
Photronics, Photronics covenants and agrees that Photronics, its employees,
agents, contractors and other third parties entering upon the Premises at the
request or invitation of Photronics shall not bring into, maintain upon,
generate, use, store, dispose of or release or discharge in or about the
Premises any hazardous materials in violation of Applicable Laws. Photronics
shall be permitted to bring onto, maintain upon and use substances typically
found or used in general office and administrative applications and the
operations of the Premises for the Permitted Use so long as (i) such substances
and any equipment which generates such substances are maintained only in such
quantities as are reasonably necessary or appropriate for Photronics' operations
in the Premises, (ii) such substances are used and stored strictly in accordance
with the manufacturers' instructions therefor and the highest standards
prevailing in the industry for such substances, (iii) such substances are not
disposed of in or about the Premises and (iv) all such substances and any
equipment which generates such substances are removed from the Premises by
Photronics upon any termination of this Lease. Any use, storage, generation or
management by Photronics of hazardous materials in or about the Premises as is
permitted pursuant to this paragraph shall be carried out in compliance with all
Applicable Laws.
Except with the prior written consent of Micron, which consent
shall not be unreasonably withheld or delayed, or as required by Micron to
retain Qualification, Photronics shall not change or expand the Premises or its
occupancy, use, or activities thereon in any manner that would subject Micron or
Photronics to new or heightened standards or obligations under any Environmental
Law, including, without limitation, modifying, changing, or expanding equipment;
methods of operation; the type of quantity of any input, throughput, or output
(including emissions or effluent); or hours of operation. In the event that any
such change proposed by Photronics is reasonably anticipated to require new or
modified permits or licenses
36
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
for or relating to the Premises, then Photronics shall be solely responsible for
obtaining same at its sole cost and expense subject to Micron's consent which
shall not be unreasonably withheld or delayed so long as such proposed change
for which the new or modified license or permit is requested shall not create
any potential liability for the Premises not anticipated in connection with the
operation of the Premises for the Permitted Use. No such proposed change by
Photronics shall be made until Photronics obtains such new or modified license
or permit. Micron shall cooperate as reasonably requested by Photronics (and at
Photronics' sole cost and expense) to obtain such new or modified permits or
licenses to which Micron has consented. Without limitation of the foregoing
restriction and any other requirements of this Article XV, Photronics shall,
within ten (10) Business Days after Photronics' receipt of Micron's written
request therefor, advise Micron in writing of any hazardous materials then
maintained by Photronics in the Premises, the use of each such hazardous
material and the approximate quantity of each such hazardous material so
maintained by Photronics, together with written certification by Photronics
stating, in substance, that neither Photronics nor any person for whom
Photronics is responsible has released or discharged any hazardous materials in
or about the Premises. Additionally, if the Land is contiguous or adjacent to
other land owned or leased by Micron or any Affiliate of Micron within the
meaning of any applicable Environmental Law, from time to time throughout the
lease term upon written request from Micron, Photronics shall provide Micron
with real time access to Photronics computer systems and records relating to
Photronics' chemical inventory and accounting systems relating to the Permitted
Use at the Land and the Premises and copies of any and all information necessary
for Micron's compliance with any and all federal permitting, record keeping,
reporting or other obligations under any Applicable Laws. For example, and
without limitation of the foregoing, Micron shall have the right to access the
internal chemical management system for air-permitting and Emergency Planning
Community Right to Know Act toxic release reporting purposes.
Photronics shall not Release or permit the Release of any
hazardous materials in, over, on, under, through, from, or about the Premises in
violation of any Applicable Laws.
In the event that Photronics proposes to conduct any use or to
operate any equipment which will or may utilize or generate a hazardous material
other than as specified in the first paragraph of this Article XV, Photronics
shall first in writing submit such use or equipment to Micron for approval. No
approval by Micron shall relieve Photronics of any obligation of Photronics
pursuant to this Article XV, including the removal, clean-up and indemnification
obligations imposed upon Photronics by this Article XV. Photronics shall,
immediately upon receipt thereof, furnish to Micron copies of all notices or
other communications received by Photronics with respect to any actual or
alleged release or discharge of any hazardous material in or about the Premises
and shall, immediately upon obtaining knowledge thereof, whether or not
Photronics receives any such notice or communication, notify Micron in writing
of any discharge or release of hazardous material by Photronics or anyone for
whom Photronics is responsible in or about the Premises. In the event that
Photronics is required to maintain any hazardous materials license or permit in
connection with any use conducted by Photronics or any equipment operated by
Photronics in the Premises, copies of each such license or permit, each renewal
or revocation thereof and any communication relating to suspension, renewal or
revocation thereof, shall be furnished to Micron within five (5) Business Days
after
37
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
receipt thereof by Photronics but in no event later than five (5) Business Days
prior to the date any adverse action could be taken with respect to Micron or
the Premises pursuant to such notice. Compliance by Photronics with the two
immediately preceding sentences shall not relieve Photronics of any other
obligation of Photronics pursuant to this Article XV.
Upon any violation of the foregoing covenants, Photronics shall
be obligated, at Photronics' sole cost, to clean-up and remove from the Premises
all hazardous materials introduced into the Premises by Photronics or any
Photronics' Party. Such clean-up and removal shall include all testing and
investigation required by any governmental authorities having jurisdiction and
preparation and implementation of any remedial action plan required by any
governmental authorities having jurisdiction or that Micron may require in its
reasonable discretion. All such clean-up and removal activities of Photronics
shall, in each instance, be conducted to the satisfaction of Micron and to the
satisfaction of all governmental authorities having jurisdiction. Micron's right
of access pursuant to Section 17.2 shall include the right to enter, inspect and
test the Premises for compliance with Photronics' covenants in this Article XV,
provided that such right is reasonably exercised and the exercise of such right
does not unreasonably interfere with Photronics' use and occupancy of the
Premises. If any governmental authority or lender to Micron shall require
testing for hazardous materials in the Premises, and it is determined as the
result of such testing that hazardous materials have been disposed of, released
or discharged in or about the Premises, then Photronics shall reimburse Micron
for all reasonable costs of such testing as additional rent hereunder in
addition to Photronics' remediation obligations hereunder or pursuant to
Environmental Laws or any other Applicable Law and this Lease.
Photronics shall indemnify, defend and hold harmless Micron, its
shareholders, officers, employees, agents and lenders from and against any and
all claims, liabilities, losses, actions, costs and expenses (including
reasonable attorneys' fees and costs of defense) incurred by such indemnified
persons, or any of them, as the result of (A) the introduction into or about the
Premises by Photronics, its employees, subtenants, licensees, contractors,
agents, invitees or trespassers (each, a "Photronics' Party" and, collectively,
the "Photronics' Parties") of any hazardous materials, (B) the usage, storage,
maintenance, generation, production or disposal by Photronics or any Photronics'
Party of hazardous materials in or about the Premises, (C) the discharge or
release in or about the Premises by Photronics or any Photronics' Party of any
hazardous materials, (D) any injury to or death of persons or damage to or
destruction of property resulting from the use, introduction, maintenance,
storage, generation, disposal, disposition, release or discharge by Photronics
or any Photronics' Party of hazardous materials in or about the Premises, and
(E) any failure of Photronics or any Photronics' Party to observe the foregoing
covenants of this Article XV. Payment shall not be a condition precedent to
enforcement of the foregoing indemnification provision.
In the event the Land was owned by Micron or an Affiliate as of
the date of this Lease, Micron shall indemnify, defend and hold harmless
Photronics, its shareholders, officers, employees, agents and lenders from and
against any and all claims, liabilities, losses, actions, costs and expenses
(including reasonable attorneys' fees and costs of defense incurred by such
indemnified parties, or any of them as a result of (A) the introduction into or
about the Premises
38
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Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
by Micron, its employees, licensees, contractors, agents, invitees or
trespassers, in each instance other than Photronics or any Photronics' Parties
(each a "Micron Party" and, collectively, the "Micron Parties") of any hazardous
materials, (B) the usage, storage, maintenance, generation, production or
disposal by Micron or any Micron Party of hazardous materials in or about the
Premises, (C) the discharge or release in or about the Premises by Micron or any
Micron Party of any hazardous material and (D) any injury to or death of persons
or damage to or destruction of property resulting from the use, introduction,
maintenance, storage, generation, disposal, disposition, release or discharge by
Micron or any Micron Party of hazardous materials in or about the Premises prior
to the date of execution of this Lease.
If the Land is being acquired by Micron in connection with
entering into this Lease (and is not as of the date of this Lease already owned
by Micron or an affiliate thereof), then, no later than thirty (30) days
following Micron's acquisition of the Land (but in any event prior to ground
breaking), Micron shall cause to be undertaken a baseline environmental site
assessment of the Land in scope (and with a written report to be produced)
reasonably acceptable to the Parties and the cost therefor shall be a
Development Cost. In the event the Land is property already owned by Micron,
Micron shall provide Photronics with copies of existing environmental site
assessment reports it has in its actual possession.
Upon prior written request by Photronics, or otherwise at
Micron's election, within thirty (30) days after any termination of this Lease
Micron shall at Photronics' sole cost and expense retain a hazardous materials
consultant (to be reasonably approved by Photronics) to conduct a survey or
audit of the Premises to determine whether or not hazardous materials introduced
by Photronics or any Photronics' Party are present in or about the Premises.
Photronics shall cooperate fully with Micron and such consultant in the conduct
of any such survey or audit. If such survey or audit reveals the presence of
hazardous materials brought into or upon the Premises by Photronics in violation
of the provisions of this Article XV, Photronics shall pay for the cost of such
audit. Such payment shall be made by Photronics to Micron, as additional rent,
within thirty (30) days after Photronics' receipt of Micron's invoice therefor.
Otherwise, the cost of such survey or audit shall be borne by Micron. If the
audit or survey discloses the presence of hazardous materials introduced by
Photronics or any Photronics' Party, the provisions of this Article XV
pertaining to Photronics' remediation obligations and Micron's remedies for
violations of Photronics' covenants hereunder shall apply to such hazardous
materials and Photronics' obligations with respect thereto.
Upon any violation of the foregoing covenants, Micron shall be
entitled to exercise all remedies available to a landlord against a defaulting
tenant, including but not limited to those set forth in Article XIV. Without
limiting the generality of the foregoing, Photronics expressly agrees that upon
any such violation Micron may, at its option, (A) after notice and failure to
cure pursuant to Section 14.1, terminate this Lease or (B) continue this Lease
in effect until compliance by Photronics with its clean-up and removal covenant
notwithstanding any earlier expiration date of the term of this Lease. No action
by Micron hereunder shall impair the obligations of Photronics pursuant to this
Article XV.
39
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Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
Photronics acknowledges that incorporation of any material
containing asbestos in any Building is absolutely prohibited. Photronics agrees
that it shall not knowingly incorporate or permit or suffer to be incorporated
any material containing asbestos into any Building. Photronics shall not be in
breach of the foregoing covenant by virtue of any asbestos placed or caused to
be placed in any Building by Micron, whether pursuant to the performance of
Micron's obligations hereunder or otherwise.
The covenants contained in this Article XV shall survive the
expiration or any earlier termination of this Lease.
ARTICLE XVI.
IMPROVEMENT OF THE PREMISES
Section 16.1 Timeline; Commitment for Equipment Financing;
------------ ---------------------------------------------
Coordination
------------
(a) [****]. The Parties hereby agree to the milestone and
completion dates set forth on Exhibit "E" hereto (the "Timeline") as the agreed
upon outside dates for performance to achieve Qualification of the Premises. The
Timeline shall not be altered, modified or waived in any respect other than by
written amendment to this Lease substituting a mutually agreed upon revised
Timeline. Micron and Photronics acknowledge and agree that portions of
Photronics' Work within the Building may proceed concurrently with portions of
Micron's Work so long as same does not interfere with or delay the substantial
completion of Micron's Work.
(b) Micron and Photronics agree that Micron and Photronics, and
their respective representatives and contractors, shall cooperatively schedule
and coordinate the performance of Micron's Work and Photronics' Work on the
Premises to facilitate completion of the Premises in accordance with the
Timeline and to avoid interference by either Party's contractor, agents or
employees with the other in the performance of their respective work on the
Premises.
Section 16.2 Micron's Work
------------ -------------
(a) Micron shall use commercially reasonable efforts in
prosecuting Micron's Work in accordance with the Timeline. Micron shall perform
the following work ("Micron's Work") with respect to the Premises:
(i) [****].
(ii) [****].
[****].
(b) Micron's Work shall be performed pursuant to such working
drawings, plans and specifications as Micron shall determine are necessary and
appropriate to construct a mask shop operation which functionally is
substantially similar to the original construction of the
40
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Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
Existing Mask Shop. In this regard, all architects, engineers, contractors
(including the general contractor), subcontractors, materialmen, consultants,
and any other service or goods providers in connection with Micron's Work shall
be selected by Micron in its sole discretion. Micron shall be responsible for
obtaining all governmental permits and approvals required with respect to
Micron's Work but Photronics shall cooperate therein as reasonably requested by
Micron. Micron shall use the same standard of care in selection of such service
providers and preparation of the plans, specifications and other relevant
working drawings as Micron undertook in connection with the construction of the
Existing Mask Shop. [****]. The Parties agree that any contract, agreement,
arrangement or understanding entered into by Micron with any Affiliate for the
provision of any Micron Work, shall be on an arms-length basis; notwithstanding
the foregoing, however, reimbursement of employee time (e.g., wages and
benefits) and costs incurred and to be included in Development Costs shall be
based on the actual costs and expenses incurred by Micron.
(c) Provided Photronics timely acts as herein provided,
Photronics shall have certain approval rights, not to be unreasonably withheld,
conditioned or delayed, with respect to (i) the plans and specifications and
drawings for the Core and Shell Work and Related Work, (ii) site work to be
undertaken upon the Land, (iii) title encumbrances and defects affecting title
to the Land, the location of the Land within Boise, Idaho, and availability of
reasonably adequate water rights to the Land if the Land is not owned by Micron
or any Affiliate as of the date of this Lease or the availability of city water
if the Land is owned by Micron or an Affiliate as of the date of this Lease,
(iv) the square footage of the Land parcel, (v) the selection of the Land parcel
solely to the extent that the parcel designated by Micron either (1) poses
environmental risk, liability or hazards (as evidenced in a baseline
environmental report of the Land if the parcel is not currently owned by Micron
or an Affiliate or in any existing environmental reports of the Land if the
parcel is owned as of the date of this Lease by Micron or an Affiliate) or (2)
cannot be used for the Permitted Use under applicable zoning laws, (vi) location
of the Building upon the Land, and (vii) any Permitted Development Easements.
[****].
(d) Within five (5) days of the date of Substantial Completion
for Photronics' Installation, but in any event upon not less than two (2)
Business Days' prior written notice to Photronics, Micron's and Photronics'
designated representatives shall conduct a walk-through of the Premises and
compile a so-called punch list of Micron's Work items included within the Core
and Shell Work and Related Work to be completed for Substantial Completion of
Photronics' Installation to be completed, corrected, removed or replaced. Micron
shall cause its contractor to complete, correct or remove and replace all such
punch-list items as promptly as practicable following the compilation and
initialing of the punch-list. By commencing its on-site Photronics' Work,
Photronics shall be deemed to have agreed that Micron fully completed and
satisfactorily performed Micron's Work to be performed for Substantial
Completion for Photronics' Installations.
(e) Within five (5) days of the date of Substantial Completion
for Rent Commencement, but in any event upon not less than two (2) Business
Days' prior written notice to Photronics, Micron's and Photronics' designated
representatives shall conduct another walk-through of the Premises and compile a
second punch-list of Micron's Work items included
41
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
within the Core and Shell Work and Related Work to be completed for Substantial
Completion for Rent Commencement to be completed, corrected, removed or
replaced. Micron shall cause its contractor to complete, correct or remove and
replace all such punch-list items (unless the need therefore resulted from the
acts of Photronics or any Photronics' Parties) as promptly as possible following
the compilation and initialing of the punch-list. By commencing operations upon
the Premises (which shall be deemed to have occurred upon Qualification of the
Mask Shop Equipment), Photronics shall be deemed to have agreed that Micron
fully completed and satisfactorily performed all of Micron's Work.
Section 16.3 Photronics' Work
------------ ----------------
(a) Photronics shall commence and diligently prosecute
Photronics' Work in accordance with the Timeline. [****].
(b) [****]. The Mask Shop Equipment and all other non-leasehold
improvements to the Premises made by or on behalf of Photronics are herein
referred to as the "Photronics' Improvements".
(c) Within sixty (60) days following execution of this Lease, and
in any event prior to and as a condition to Photronics' commencement of any
on-site Photronics' Work, the Parties (and, if applicable, the Company) shall
enter into a Photronics' Work Support Agreement (herein so called) pursuant to
which Micron (and, if applicable, the Company), for a fee to be paid by
Photronics, shall oversee, and advise with respect to, the installation of the
Mask Shop Equipment. Costs and fees charged by Micron under the Photronics' Work
Support Agreement shall be commercially reasonable. Upon execution, such
Photronics' Work Support Agreement shall constitute an additional Transaction
Document.
Section 16.4 Warranties and Guaranties
------------ -------------------------
(a) Micron shall, as a part of the construction contract for
Micron's Work, use commercially reasonable efforts to obtain [****] warranty as
to materials (or as otherwise warranted by the manufacturer) and labor from
Micron's general contractor. Micron shall also use commercially reasonable
efforts to obtain such warranties and guaranties as shall be customary from all
subcontractors, materialmen and equipment suppliers involved in the performance
of Micron's Work. Upon the expiration of the period set forth in Section 8.1(b),
Micron shall assign to Photronics Micron's rights under all such warranties and
guaranties to the extent both permitted thereunder and may be assigned without
cost to Micron. Such assignment shall be without recourse to Micron.
(b) Photronics shall obtain warranties for all Mask Shop
Equipment in accordance with standard industry practice. Photronics shall use
commercially reasonable efforts to have such warranties assignable to Micron.
42
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
ARTICLE XVII.
MISCELLANEOUS
Section 17.1 Offset Statement
------------ ----------------
(a) Within twenty (20) days following a request in writing by
Micron, Photronics shall execute and deliver to Micron a statement in writing
(i) certifying that this Lease is unmodified and in full force and effect (or,
if modified, stating the nature of such modification and certifying that this
Lease, as so modified, is in full force and effect) and the date to which the
monthly Base Rent and other charges are paid in advance, if any, (ii)
acknowledging that there are not, to Photronics' knowledge, any uncured defaults
on Micron's part hereunder, or specifying such defaults if any are claimed and
(iii) acknowledging (if true) the accuracy of such other facts as are reasonably
included in such statement and relate to this Lease. Any such statement may be
relied upon by any prospective purchaser, transferee or encumbrancer of the
Premises, this Lease or any interest herein.
(b) Failure of Photronics to deliver such statement within such
time shall be conclusive upon Photronics (i) that this Lease is in full force
and effect, without modification, except as may be represented by Micron, (ii)
that there are no uncured defaults in Micron's performance, (iii) that no more
than one quarter's Base Rent has been paid in advance and (iv) that any other
statements of fact included by Micron in the statement and relating to this
Lease are correct.
(c) Notwithstanding anything to the contrary in Article XIV, any
failure of Photronics to execute and deliver an estoppel certificate within the
time period herein specified shall be a Default hereunder if not cured within
five (5) days after Micron's written notice to Photronics.
Section 17.2 Micron's Right of Access
------------ ------------------------
(a) Micron and its agents shall have free access to the Premises
and all leasehold improvements thereon during all reasonable business hours, and
at any time during an emergency, for the purpose of examining the same to
ascertain if they are in good repair, making reasonable repairs or installations
which Micron may be required or permitted to make hereunder, posting notices
which Micron may deem necessary for its protection and exhibiting the same to
prospective purchasers or tenants (at any time after Micron shall have the right
to terminate this Lease) and to access Photronics' books and records as it shall
have the right to review pursuant to the Transaction Documents; provided, that
Micron's access shall not, under the circumstances, unreasonably interfere with
Photronics' use and enjoyment of the Premises. Any entry by Micron pursuant to
this Section 17.2 shall be without rebate of rent to Photronics. After the Qual
Period End Date, the aforesaid entry, except in the case of emergency, shall be
upon reasonable advance notice.
(b) Nothing contained herein shall constitute an actual or
constructive eviction or relieve Photronics of any obligation with respect to
making any repair, replacement or improvement or complying with any law, order
or requirement of any government or
43
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
other authority. Nothing contained herein shall impose upon Micron any
obligation to Photronics except as specifically provided in this Lease.
Section 17.3 Transfer of Micron's Interest
------------ -----------------------------
In the event of any transfer or transfers of Micron's interest in
the Premises other than a transfer for security purposes only, the transferor
shall be automatically relieved of any and all obligations and liabilities on
the part of Micron accruing from and after the date of such transfer, provided
the transferee in writing agrees to assume such obligations accruing from and
after the effective date of the transfer; provided, however, in the event that
the effective date of any such transfer is prior to the date of Substantial
Completion for Rent Commencement, Micron shall not be relieved of its obligation
for completion of Micron's Work (which obligation Micron can have fulfilled in
any commercially reasonable manner Micron elects), inclusive of Micron's
warranty obligations under Section 8.1(b). No holder of a mortgage or deed of
trust to which this Lease is or may be subordinate, and no landlord under a
so-called sale leaseback, shall be responsible in connection with any security
deposited, or in connection with any other funds paid by Photronics hereunder,
unless such mortgagee, holder of a deed of trust or landlord shall actually
receive such funds. The covenants contained in this Lease on the part of Micron
shall, subject to the foregoing, be binding on Micron, its successors and
assigns, only in respect of their respective periods of ownership of the
landlord's interest in this Lease.
Section 17.4 Separability
------------ ------------
If any provision in this Lease will be found or be held to be
invalid or unenforceable, then the meaning of said provision will be construed,
to the extent feasible, so as to render the provision enforceable, and if no
feasible interpretation would save such provision, it will be severed from the
remainder of this Lease which will remain in full force and effect unless the
severed provision is essential and material to the rights or benefits received
by any Party. In such event, the Parties will use their respective best efforts
to negotiate, in good faith, a substitute, valid and enforceable provision or
agreement which most nearly affects the Parties' intent in entering into this
Lease.
Section 17.5 Interest on Past Due Obligations
------------ --------------------------------
(a) Any amount due by Photronics hereunder that is not paid
within five (5) days after the date due shall bear interest at the Default Rate,
accruing from the date due until the same is fully paid. Payment of such
interest shall not excuse or cure any default by Photronics pursuant to this
Lease. The Default Rate shall remain in effect after the occurrence of any
breach or default hereunder by Photronics to and until payment of the entire
amount due.
(b) PHOTRONICS ACKNOWLEDGES THAT THE LATE PAYMENT BY PHOTRONICS
TO MICRON OF RENT AND OTHER SUMS DUE HEREUNDER AND THE FAILURE TO DELIVER
CERTAIN ITEMS REQUIRED TO BE DELIVERED HEREUNDER WILL CAUSE MICRON TO INCUR
COSTS NOT CONTEMPLATED BY THIS LEASE, THE EXACT AMOUNT OF WHICH WILL BE
EXTREMELY DIFFICULT TO ASCERTAIN. SUCH COSTS MAY INCLUDE, BUT ARE NOT LIMITED
TO, ADMINISTRATIVE,
44
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
PROCESSING AND ACCOUNTING CHARGES, AND LATE CHARGES WHICH MAY BE IMPOSED ON
MICRON BY THE TERMS OF ANY ENCUMBRANCE COVERING THE PREMISES. [****]. THE
PARTIES AGREE THAT SUCH LATE CHARGE REPRESENTS A FAIR AND REASONABLE ESTIMATE OF
THE COST MICRON WILL INCUR BY REASON OF LATE PAYMENT OR LATE DELIVERY BY
PHOTRONICS. ACCEPTANCE OF SUCH LATE CHARGE SHALL NOT CONSTITUTE A WAIVER OF
PHOTRONICS' DEFAULT WITH RESPECT TO SUCH OVERDUE AMOUNT OR OTHER ITEM, NOR
PREVENT MICRON FROM EXERCISING ANY OTHER RIGHTS AND REMEDIES GRANTED HEREUNDER
OR BY LAW TO MICRON, INCLUDING, WITHOUT LIMITATION, TERMINATION OF THIS LEASE.
----------------------- ------------------------
Micron's Initials Photronics' Initials
Section 17.6 Time of Essence
------------ ---------------
Time is of the essence with respect to the performance of every
provision of this Lease in which time of performance is a factor.
Section 17.7 Construction; Interpretation
------------ ----------------------------
(a) Certain Terms. The words "hereof," "herein," "hereto,"
"hereunder" and similar words refer to this Lease as a whole and not to any
particular provision of this Lease. The term "including" is not limited and
means "including without limitation."
(b) Section References; Title and Subtitles. Unless otherwise
noted, all references to Sections and Exhibits herein are to Sections and
Exhibits of this Lease. The titles, captions and headings of this Lease are
inserted for convenience of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Lease.
(c) Reference to Persons, Leases, Statutes. Unless otherwise
expressly provided herein, (i) references to a person or entity include its
successors and permitted assigns, (ii) references to agreements (including this
Lease) and other contractual instruments shall be deemed to include all
subsequent amendments, restatements and other modifications thereto or
supplements thereof and (iii) references to any statute or regulation are to be
construed as including all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting such statute or regulation.
(d) Presumptions. No Party, nor its counsel, shall be deemed the
drafter of this Lease for purposes of construing the provisions of this Lease,
and all provisions of this Lease shall be construed in accordance with their
fair meaning, and not strictly for or against any Party.
(e) The use of the masculine pronoun includes the feminine and
neuter genders; the use of the singular form of a pronoun includes the plural
and vice-versa.
45
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
(f) If there be more than one person or entity indicated as
tenant herein, each person or entity subscribing as a tenant shall be jointly
and severally liable for all obligations of the tenant hereunder. Except as
otherwise expressly provided in this Lease, including, without limitation,
pursuant to a Permitted Photronics Change in Control, Photronics may not assign,
delegate or otherwise transfer any of its rights or obligations hereunder to any
third party, whether by assignment, transfer, Change in Control (as defined in
the Company Operating Agreement), or other means, without the prior written
consent of Micron. Any attempted assignment in violation of the foregoing shall
be null and void. Subject to the foregoing, this Lease shall be binding on and
inure to the benefit of the Parties, their heirs, executors, administrators, and
successors.
(g) Any provision of this Lease which provides for the survival
thereof (or of any portion thereof) beyond the expiration of the term or any
termination of the Lease is hereby also deemed to survive any conveyance of fee
title to the Premises.
Section 17.8 Incorporation of Prior Agreements; Amendments
------------ ---------------------------------------------
This Lease, together with the Transaction Documents and the
exhibits and schedules referred to herein and therein, constitute the entire
agreement between the Parties hereto pertaining to the subject matter hereof,
and supersede any and all prior oral and written, and all contemporaneous oral,
agreements or understandings pertaining thereto. There are no agreements,
understandings, restrictions, warranties or representations relating to such
subject matter among the Parties other than those set forth herein and in the
other documents, exhibits and schedules referred to herein and therein. Each
Party acknowledges that the other Party has made no representations, promises or
guarantees, either by verbal statement or by its conduct, upon which the
acknowledging Party has relied with respect to the subject matter of this Lease
except for those that are expressly contained in this Lease or in any exhibit
attached hereto. No person, firm or corporation has at any time had any
authority from Micron to make any representations on behalf of Micron and
Photronics waives any right to rely upon any such representations. No verbal
agreement or implied covenant shall be held to vary the provisions hereof, any
statute, law or custom to the contrary notwithstanding. This Lease may not be
amended without the prior written consent of each Party hereto and shall only be
amended by a written lease amendment executed by the Parties. No employee or
agent of either Party shall have authority, by letter, memorandum or other
written communication, to amend, vary or delete any provision of this Lease.
Section 17.9 Notices
------------ -------
Unless otherwise provided herein, all notices, requests,
instructions or consents required or permitted under this Lease shall be in
writing and will be deemed given: (a) when delivered personally; (b) when sent
by confirmed facsimile; (c) five (5) days after having been sent by registered
or certified mail, return receipt requested, postage prepaid; or (d) three (3)
business days after deposit with an internationally recognized commercial
overnight carrier specifying next day delivery, with written verification of
receipt. All communications will be sent to the addresses listed on Exhibit "A"
of the Company Operating Agreement (or to such
46
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
other address or facsimile number as may be designated by a Party giving written
notice to the other Parties pursuant to this Section 17.9).
Section 17.10 Brokers
------------- -------
Photronics and Micron each represent and warrant to the other
that they have had no dealings with any real estate brokers or agents in
connection with the negotiation of this Lease and that no broker or agent
retained by them is entitled to a fee or commission in connection with the
execution of this Lease. Each Party hereby expressly agrees and covenants to
defend, indemnify and hold the other harmless from and against any and all
claims, threatened or asserted, by any broker, finder or agent claiming under or
through such indemnifying Party in connection with the negotiation and execution
of this Lease. Such defense, indemnification and hold harmless obligation shall
extend to but not be limited to any and all claims by any broker or leasing
agent employed or retained by an indemnifying Party in connection with leasing
matters generally. Failure of either Party to fulfill its defense and
indemnification obligation under this Section 17.10 shall be deemed a breach of
this Lease entitling the other to exercise all remedies available to a landlord
against a defaulting tenant or to a tenant against a defaulting landlord, as the
case may be, including, but not limited to the remedies provided in Article XIV.
Micron and Photronics acknowledge that payment shall not be a condition
precedent to recovery upon the foregoing indemnification provision.
Section 17.11 Waivers
------------- -------
Any provision of this Lease may be waived if, and only if, such
waiver is in writing and is duly executed by the Party against whom the waiver
is to be enforced. No failure or delay by any Party in exercising any right,
power or privilege under this Lease shall operate as a waiver thereof nor shall
any single or partial waiver or exercise thereof preclude the enforcement of any
other right, power or privilege. No act or thing done by Micron or Micron's
agents during the term of this Lease shall be deemed an acceptance of a
surrender of the Premises, unless done in a writing signed by Micron.
Photronics' delivery of keys to any employee or agent of Micron shall not
operate as a termination of this Lease or a surrender of the Premises unless
done pursuant to a written agreement to such effect executed by Micron.
Section 17.12 Liens
------------- -----
Photronics shall do all things necessary to prevent the filing of
any mechanics' or other liens against the Premises or any part thereof by reason
of work, labor, services or materials supplied or claimed to have been supplied
to Photronics, or anyone holding the Premises, or any part thereof, through or
under Photronics. If any such lien shall at any time be filed against the
Premises, Photronics shall either cause the same to be discharged of record
within twenty (20) days after the date of filing of the same or, subject to
Micron's prior written consent thereto, if Photronics determines in good faith
that such lien is indefensible by such lien claimant, shall furnish such
security as shall be acceptable to Micron in its sole discretion (including as
to amount and surety among other considerations) and may be required to prevent
any foreclosure proceedings against the Premises or any portion thereof or
interest therein during the pendency of such contest. If Photronics shall fail
to discharge such lien within such period
47
and fail to furnish such security within such period, then, in addition to any
other right or remedy of Micron resulting from the default of Photronics, Micron
may, but shall not be obligated to, discharge the same either by paying the
amount claimed to be due or by procuring the discharge of such lien by giving
security or in such other manner as is, or may be, prescribed by law. Photronics
shall repay to Micron, on demand, all sums disbursed or deposited by Micron
pursuant to the foregoing provisions of this Section 17.12, including Micron's
costs, expenses and reasonable attorneys' fees incurred in connection therewith,
with interest thereon from the date of such disbursement or deposit to the date
of repayment at the Default Rate. Nothing contained herein shall imply any
consent or agreement on the part of Micron to subject Micron's estate to
liability under any mechanics' or other lien law.
Section 17.13 Subordination
------------- -------------
This Lease shall, at Micron's option, be subordinate to any
mortgage or deed of trust that may exist or hereafter be placed upon the
Premises or any part thereof and to any and all advances to be made thereunder
and to the interest thereon and to all renewals, replacements and extensions
thereof executed with respect to the Premises. If, however, a prospective lender
requires that this Lease be subordinated to any such ground lease or
encumbrance, this Lease shall automatically be subordinate to such encumbrance;
provided, however, that as a condition to the subordination of this Lease to any
such prospective lender, Micron shall obtain execution of a subordination,
nondisturbance and attornment agreement (an "SNDA") in form and substance
reasonably satisfactory to Micron, Photronics and such lender; provided,
however, it shall, at a minimum, contain a recognition of Photronics' purchase
rights set forth herein with respect to the Premises as well as the prospective
mortgagee's covenant to release its mortgage, as applicable, of record upon
satisfaction of the conditions in this Lease for conveyance of the Premises to
Photronics. Photronics shall, within ten (10) days after request by Micron from
time to time execute, acknowledge and deliver an SNDA in favor of any mortgagee
of the Premises or any portion thereof or interest therein. Photronics shall
upon written request by Micron (a) execute such instruments as may be required
at any time and from time to time to evidence the existence of this Lease (e.g.
a memorandum of lease) and to subordinate the rights and interest of Photronics
under this Lease to the lien of any such mortgage or deed of trust, or if
requested by Micron, to subordinate any such mortgage or deed of trust to this
Lease, and (b) supply such financial information concerning Photronics as may be
reasonably requested by any lender. Subject to Photronics' receipt of the
agreements described above, Photronics covenants and agrees that, in the event
any proceedings are brought for the foreclosure of any such mortgage or deed of
trust, upon a deed in lieu thereof, to attorn, without any deductions or setoffs
whatsoever, to the purchaser, lienholder, or any successors thereto upon any
such foreclosure sale or deed in lieu thereof, if requested to do so by such
purchaser or lienholder, and to recognize such purchaser or lienholder as the
landlord under this lease, provided such lienholder or purchaser shall agree to
accept this Lease and not disturb Photronics' tenancy so long as Photronics
timely pays the rent and observes and performs the terms, covenants and
conditions of this Lease to be observed or performed by Photronics. Micron's
interest herein may be assigned at any time as security to any lienholder.
Photronics waives the provisions of any current or future Applicable Law which
may give or purport to give Photronics any right or
48
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
election to terminate or otherwise adversely affect this Lease and the
obligations of Photronics hereunder in the event of any foreclosure sale,
foreclosure proceeding or deed in lieu.
Section 17.14 Force Majeure
------------- -------------
Neither Party shall be deemed in default if its performance or
obligations hereunder are delayed or become impossible or impractical due to
causes beyond its reasonable control, including acts of God, war, fire,
earthquake, and acts of civil or military authority. The time for performance of
any such obligation shall be extended for the time period lost by reason of the
delay. For the purpose of this Section 17.14:
(a) A cause shall be beyond the reasonable control of a
Party to this Lease when such cause would affect any person similarly situated
(such as a power outage, labor strike or truckers' strike) but shall not be
beyond the reasonable control of such Party when peculiar to such Party (such as
financial inability or [****].
(b) This Section 17.14 shall not apply to any obligation to
pay money or delay the Rent Commencement Date.
(c) In the event of any occurrence which a Party believes
constitutes a cause beyond the reasonable control of such Party and which will
delay any performance by such Party hereunder, such Party shall promptly in
writing notify the other Party of the occurrence and nature of such cause, the
anticipated period of delay and the steps being taken by such Party to mitigate
the effects of such delay.
Section 17.15 Yield Up Premises; Quitclaim
------------- ----------------------------
(a) At any termination of this Lease, Photronics shall
peaceably yield up the Premises and all leasehold improvements thereto to Micron
(except as otherwise specifically provided in this Lease), in its original
condition, reasonable wear and tear and damage from casualty excepted. Without
limiting the generality of the foregoing, upon delivery of the Premises to
Micron, the roof of the Building shall be watertight, all mechanical,
electrical, plumbing and irrigation systems on the Premises and the Mask Shop
Equipment shall be in good operating condition, all landscaping shall be in good
condition and the parking lots shall be striped, free of potholes and with good
surface conditions.
(b) Whenever Micron shall re-enter the Premises as provided
in Article XIV, or as otherwise provided in this Lease, any property of
Photronics not removed by Photronics within the time periods provided by Section
17.20 shall be considered abandoned and Micron may remove any or all of such
items and dispose of the same as it determines in its sole discretion, at
Photronics' sole cost and expense. Photronics waives all claims for damages
caused by Micron's re-entering and taking possession of the Premises or removing
and storing or disposing of the property of Photronics as provided herein, and
no such entry shall be considered a forcible entry.
49
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
Section 17.16 Survival of Indemnities
------------- -----------------------
The obligations of Photronics under each and every
indemnification and hold harmless provision contained in this Lease shall
survive the expiration or earlier termination of this Lease (and any conveyance
of fee title to the Premises) to and until the last to occur of (a) the last
date permitted by law for the bringing of any claim or action with respect to
which indemnification may be claimed by Micron against Photronics under such
provision or (b) the date on which any claim or action for which indemnification
may be claimed under such provision is fully and finally resolved and, if
applicable, any compromise thereof or judgment or award thereon is paid in full
by Photronics and Micron is reimbursed by Photronics for any amounts paid by
Micron in compromise thereof or upon a judgment or award thereon and in defense
of such action or claim, including reasonable attorneys' fees incurred. Payment
shall not be a condition precedent to recovery upon any indemnification
provision contained herein.
Section 17.17 Security Deposit
------------- ----------------
There shall be no security deposit pursuant to this Lease.
Section 17.18 No Option
------------- ---------
Submission of this Lease to Photronics shall not be deemed to be
an offer or option for Photronics to lease the Premises. Micron shall not be
bound hereby until Micron's delivery to Photronics of an executed copy hereof
and of all Transaction Documents signed by Micron, already having been signed by
Photronics.
Section 17.19 Micron Liability
------------- ----------------
In the event of an actual or alleged failure, breach or default
hereunder by Micron, Photronics' sole and exclusive remedy shall be against
Micron's interest in the Premises, and Micron, its directors, officers,
employees and any partner of Micron will not be sued, be subject to service of
process, or have a judgment obtained against it or them in connection with any
alleged breach or default, and no writ of execution will be levied against any
other assets of Micron or any assets of any shareholder, officer or partner of
Micron. The covenants and agreements of this provision are enforceable by Micron
and also by any shareholder, officer or partner of Micron. If Photronics may
seek or claim damages against Micron (whether by reason of breach of this Lease
or otherwise), Photronics shall not seek, nor shall there be awarded or granted
by any court, arbitrator, or other adjudicator, any speculative, consequential,
collateral, special, punitive, or indirect damages, whether such breach shall be
willful, knowing, intentional, deliberate, or otherwise. The Parties intend that
any damages awarded to Photronics shall be limited to actual, direct damages
sustained by Photronics. Micron shall not be liable for any loss of profits
suffered or claimed to have been suffered by Photronics. In the event of any
termination of this Lease by Micron prior to the Rent Commencement Date in
breach of this Lease, Micron shall have a good faith duty, at no cost or expense
to Micron therefor (through guaranty or other credit enhancement mechanisms or
otherwise) to undertake to obtain an assignment to Photronics of the
construction contract for Micron's Work if so requested by Photronics.
Notwithstanding the restriction in the first sentence of this Section 17.19, if
Micron
50
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
defaults in the completion of Micron's Work, Photronics shall not be restricted
to seeking recovery for its damages permitted pursuant to this Lease to Micron's
interest in the Premises.
Section 17.20 Termination
------------- -----------
If this Lease is terminated under any provision hereof, the
following shall pertain:
(a) Photronics shall, within a commercially reasonable period for
particular items and types of personal property but no longer than [****] days
(at the maximum) after the termination date, remove from the Premises all
personal property of Photronics (but specifically excluding all Photronics'
Improvements inclusive of the Mask Shop Equipment to be retained by Micron
pursuant to Section 14.2(a)(ii)) and Photronics' Signage, and shall surrender
the Premises to Micron in the condition required by Section 17.15. For
clarification, Photronics must remove personal property as quickly as
commercially reasonably possible but shall have up to a maximum [****]for any
particular items which cannot commercially reasonably be removed in a shorter
time frame. In the event that Micron requires the property to be relocated prior
to the expiration of such [****], it shall have the right to de-install the
property and relocate it to a storage facility reasonably acceptable to
Photronics at Micron's own expense. Storage facility charges shall be at
Photronics' expense. Micron shall not be liable for any damage resulting from
such relocation and storage. Photronics shall, at Photronics' cost, repair any
damage to the Premises caused by such removal. Any items which Photronics is
permitted to remove but fails to remove prior to the surrender of the Premises
to Micron shall be deemed abandoned by Photronics, and Micron may retain or
dispose of the same as Micron sees fit without claim by Photronics thereto or to
any proceeds thereof. If Micron elects to remove and dispose of any such items
abandoned by Photronics, the cost of such removal and disposal shall be
additional rent payable by Photronics to Micron upon demand. Photronics shall
pay reasonable warehouse charges through the last day of the calendar month in
which the last of the property is removed and any costs charged pursuant to the
immediately preceding sentence, each of the Parties shall bear their own costs
and fees incurred (including all costs incurred in performing their respective
obligations hereunder) through the termination date and from and after the
termination date (or expiration date, as applicable) neither Party shall have
any further obligations to the other, except for those obligations set forth in
this subsection, in any other Section of this Lease which specifically provides
that obligations provided for therein survive termination, and in subsection (b)
below.
(b) Notwithstanding the provisions of subsection (a), upon any
such termination and upon expiration of the Lease term, the following shall
pertain:
(i) Photronics agrees to defend, indemnify and hold
harmless Micron from and against any and all claims, costs, losses, expenses,
damages, actions and causes of action for which Photronics is responsible under
this Lease and which accrue on or before the termination date.
(ii) Photronics shall remain liable for the cost of all
utilities used in or at the Premises through the termination date accrued and
unpaid and billed directly to Photronics, whether or not then billed, as of the
termination date until full payment thereof by
51
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
Photronics. Photronics shall obtain directly from the companies providing such
services closing statements for all services rendered through the termination
date and shall promptly pay the same. If any utility statement with respect to
the Premises includes charges for a period partially prior to and partially
subsequent to the termination date, such charges shall be prorated as between
Micron and Photronics, with Photronics responsible for the portion thereof
(based upon a fraction the numerator of which is the number of days of service
on such statement through the termination date and the denominator of which is
the total number of days of service on such statement) through the termination
date and Micron shall be responsible for the balance. The Party receiving any
such statement which requires proration hereunder shall promptly pay such
statement and the other Party shall, within ten (10) days after receipt of a
copy of such statement, remit to the Party paying the statement any amount for
which such other Party is responsible hereunder.
(iii) Photronics shall remain responsible for any taxes of
the type described in Sections 6.1 and 6.3 and assessed against the Premises and
the personal property located therein or thereon with a lien date prior to the
expiration or termination date, irrespective of the date of the billing
therefor, and shall indemnify and hold Micron harmless with respect to any
claims for such taxes or resulting from non-payment thereof.
Section 17.21 Accord and Satisfaction
------------- -----------------------
(a) The receipt, retention, cashing, depositing or endorsement by
Micron of any check, draft or other instrument of payment delivered by
Photronics or any proposed assignee of or successor to Photronics shall not be
deemed to be an acceptance by Micron of any attempted alteration, assignment or
notation written on said instrument by the maker thereof.
(b) No payment by Photronics or receipt by Micron of a lesser
amount than the rent herein stipulated shall be deemed to be other than on
account of the earliest accruing rent, nor shall any endorsement or statement on
any check or any letter accompanying any such check or payment be deemed an
accord and satisfaction. Micron may accept such check or payment without
prejudice to Micron's right to recover the balance of such rent or pursue any
other remedy provided for in this Lease or available at law or in equity.
(c) All amounts payable by either Party hereunder to the other
shall be paid in lawful money of the United States to the Party entitled to
receive the same at its address referred to in Section 17.9 or at such other
address as a Party may designate by notice to the other pursuant to this Article
XVII. All amounts to be paid by Photronics shall be paid without deduction or
offset.
Section 17.22 Counterparts
------------- ------------
This Lease may be executed in counterparts, each of which so
executed will be deemed to be an original and such counterparts together will
constitute one and the same agreement. Execution and delivery of this Lease by
exchange of facsimile copies bearing the facsimile signature of a Party shall
constitute a valid and binding execution and delivery of this Lease by such
Party.
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission. 52
Section 17.23 Building Security
------------- -----------------
(a) Photronics acknowledges that the rent payable by Photronics
hereunder does not include the cost of guard service or other security measures,
and that Micron shall have no obligation whatsoever to provide the same.
Photronics assumes all responsibility for the protection of Photronics, its
employees, agents and invitees from acts of third parties.
(b) Photronics shall be entitled, as a Development Cost, to
install, maintain and use a commercially reasonable, high quality and reliable
security system in the Building. In connection with such security system (the
"Security System"), the following shall pertain:
(i) The Security System shall be subject to the prior
written approval of Micron, not to be unreasonably withheld, conditioned or
delayed.
(ii) Photronics shall be solely responsible to obtain all
governmental approvals and permits required with respect to the Security System.
Installation of the Security System shall be in accordance with the plans
therefor approved by Micron, not to be unreasonably withheld, conditioned or
delayed, and all required governmental approvals and permits.
(iii) Photronics shall be solely responsible to maintain,
repair and replace the Security System.
Section 17.24 Publicity
------------- ---------
Each of Micron and Photronics shall consult with the other Party
prior to issuing any press release, public statement or other publicity
concerning the transactions provided for in this Lease. Neither Micron nor
Photronics shall issue any press release, public statement or other publicity
with respect to the transactions provided for in this Lease without the prior
written approval of the other Party, both as to the issuance of such publicity
and the form and content thereof. No such publicity release shall disclose the
economic terms of the transactions provided for in this Lease. Subject to the
immediately preceding sentence, any such required approval shall not be
unreasonably withheld, delayed or conditioned by either Party hereto.
Section 17.25 Governing Law
------------- -------------
This Lease will be governed by and construed in accordance with
the laws of the State of Idaho, United States of America, as applied to
agreements among Idaho residents entered into and wholly to be performed within
the State of Idaho (without reference to any choice or conflicts of laws rules
or principles that would require the application of the laws of any other
jurisdiction).
Section 17.26 Rights and Remedies Cumulative
------------- ------------------------------
Except for the specific limitation set forth in Section
14.2(a)(ii) with respect to Micron and as otherwise provided in this Lease with
respect to Photronics, (a) the rights and
53
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
remedies provided by this Lease are cumulative and the use of any one right or
remedy by any Party shall not preclude or waive its right to use any or all
other remedies, and (b) said rights and remedies are given in addition to any
other rights the Parties may have by law, statute, ordinance or otherwise.
Section 17.27 Dispute Resolution
------------- ------------------
The Parties hereby agree that claims, disputes or controversies
of whatever nature, arising out of, in connection with, or in relation to the
interpretation, performance or breach of this Lease (or any other agreement
contemplated by or related to this Lease), shall be resolved in accordance with
the dispute resolution procedures set forth in the Company Operating Agreement.
Section 17.28 Third-Party Beneficiaries
------------- -------------------------
This Lease is not intended to confer any rights or remedies upon,
and shall not be enforceable by, any person or entity other than the Parties
hereto, their respective successors and permitted assigns.
Section 17.29 No Recording
------------- ------------
This Lease shall not be recorded in any public records. A
Memorandum of Lease in form and substance as set forth on Exhibit "H" hereto
shall be executed by the Parties and may be recorded by either Party at its sole
expense following the last to occur of (a) execution of this Lease by both
Parties, and (b) determination of the Land. In the event this Lease is
cancelled, terminated or otherwise ends other than by conveyance of the improved
Land by Special Warranty Deed attached as Exhibit "C" hereto from Micron to
Photronics, upon five days' prior request by Micron, the Parties shall execute
(and Micron shall record at its expense) the Memorandum of Cancellation of Lease
in form and substance set forth on Exhibit "I" hereto.
Section 17.30 Quiet Enjoyment
------------- ---------------
Subject to the terms and provisions of this Lease and the
Permitted Exceptions (and including without limitation acquisition of the Land
and the performance of Micron Work upon the Premises), and so long as no Default
shall have occurred and be continuing, Photronics shall peaceably and quietly
hold and enjoy the Premises for the term free of any claim or other action by
Micron or anyone rightfully claiming by, through or under Micron (other than
Photronics).
[No further text on this page.]
54
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
IN WITNESS WHEREOF the Parties hereto have executed this Build to
Suit Lease as of the ______ day of _______________, 2006.
Micron:
MICRON TECHNOLOGY, INC., a
Delaware orporation
By:
-----------------------------
Name (parent):
------------------
Title:
--------------------------
Photronics:
PHOTRONICS, INC., a Connecticut
corporation
By:
-----------------------------
Name (parent):
------------------
Title:
--------------------------
[Signature Page to Build to Suit Lease]
LANDLORD ACKNOWLEDGMENT
STATE OF ______________)
COUNTY OF ______________)ss:
I, the undersigned, a Notary Public, in and for the County and State aforesaid,
do hereby certify that _________________________, personally known to me to be
the____________ of___________ , a___________ , and personally known to me to be
the same person whose name is subscribed to the foregoing instrument, appeared
before me this day in person and acknowledged that as such officer of said
entity being authorized so to do, (s)he executed the foregoing instrument on
behalf of said entity, by subscribing the name of such entity by himself/herself
as such officer, as a free and voluntary act, and as the free and voluntary act
and deed of said entity under the foregoing instrument for the uses and purposes
therein set forth.
GIVEN under my hand and official seal this ____ day of _________, 20__.
---------------------------
Notary Public
My Commission Expires: ____________________________
PHOTRONICS ACKNOWLEDGMENT
STATE OF ______________)
COUNTY OF ______________)ss:
I, the undersigned, a Notary Public, in and for the County and State aforesaid,
do hereby certify that _________________________, personally known to me to be
the____________ of___________ , a___________ , and personally known to me to be
the same person whose name is subscribed to the foregoing instrument, appeared
before me this day in person and acknowledged that as such officer of said
entity being authorized so to do, (s)he executed the foregoing instrument on
behalf of said entity, by subscribing the name of such entity by himself/herself
as such officer, as a free and voluntary act, and as the free and voluntary act
and deed of said entity under the foregoing instrument for the uses and purposes
therein set forth.
GIVEN under my hand and official seal this ____ day of _________, 20__.
--------------------------
Notary Public
My Commission Expires: ____________________________
[Acknowledgement Page to Build to Suit Lease]
EXHIBIT A
PLOT PLAN OF LAND
A-1
EXHIBIT B
LEGAL DESCRIPTION OF LAND
B-1
EXHIBIT C
FORM OF SPECIAL WARRANTY DEED
C-1
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
When recorded, return to:
-----------------------------
-----------------------------
-----------------------------
Attn:
-----------------------
------------------------------
Space above for recorder's use
SPECIAL WARRANTY DEED
---------------------
THIS INDENTURE, made as of this _____ day of ________, 200__, between
Micron Technology, Inc., a Delaware corporation ("Grantor"), whose principal
office is located at_______________________________________________________, and
Photronics, Inc., a Connecticut corporation ("Grantee"), whose principal office
is located at_______________________________________________________________, by
these presents does hereby GRANT, BARGAIN, SELL AND CONVEY unto the Grantee, and
to its successors and assigns, FOREVER, that certain property located in the
City of Boise, County of Ada, State of Idaho, and more particularly described on
Exhibit "A" attached hereto and incorporated by reference herein, together with
all the improvements thereon (the "Property") [, reserving in the Grantor all
oil, gas, hydrocarbons, mineral and water rights appurtenant to the Property and
the attendant right and easement to access the Property and extract such as oil,
gas, hydrocarbon, minerals and water provided that Grantor shall exercise such
rights in accordance with Section 3.2 of the Build to Suit Lease between Micron
Technology, Inc. and Photronics, Inc. dated May 5, 2006].(1)
Together with all and singular the hereditaments and appurtenances
thereunto belonging, or in anywise appertaining, and the reversion and
reversions, remainder and remainders, rents, issues and profits thereof, and all
the estate, right, title, interest, claim or demand whatsoever, of the Grantor,
either in law or in equity, of, in and to the Property, with the hereditaments
and appurtenances including without limitation and subject to those items set
forth on Exhibit "B" attached hereto and made a part hereof.
------------------------------
(1) Note: Bracketed language will only be included if the Land is land owned by
Micron or an affiliate as of the date of the Build to Suit lease.
C-2
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
This grant is further subject to certain rights of first refusal of
Grantor and affiliates of Grantor to purchase the Property upon the terms and
conditions therefor set forth in that certain Build to Suit Lease by and between
Micron Technology, Inc., as landlord, and Photronics, Inc., as tenant, dated as
of May 5, 2006 [ , a Memorandum of Lease pertaining thereto having been recorded
in Volume ___, Page ___ of the __________ Office of Ada County, Idaho on
____________, 200_,] as such Build to Suit Lease may be amended and/or amended
and restated from time to time.
TO HAVE AND TO HOLD the said premises as above described, with the
appurtenances, unto the Grantee, its heirs and assigns forever.
And the Grantor, for itself, and its successors, does covenant, promise
and agree, to and with the Grantee, its heirs and assigns, that it has not done
or suffered to be done, anything whereby the said Property hereby granted is, or
may be, in any manner encumbered or charged, except as herein recited; and that
the said Property, against all persons lawfully claiming, or to claim the same,
by, through or under it, it WILL WARRANT AND FOREVER DEFEND.
[SIGNATURE ON FOLLOWING PAGE]
C-3
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
In Witness Whereof, the Grantor has executed this instrument and
caused its corporate name and seal to be hereunto affixed by its duly authorized
officers this _________ day of ___________, 20____.
Micron Technology, Inc.,
a Delaware corporation
By:
-------------------------
Name (Print):________________
Title (Print):_______________
State of )
-------------
) ss
County of )
------------
On the ___ day of ______, 20___, personally appeared before me the above
________________, the ____________________ of Micron Technology, Inc., a
Delaware corporation, who, being by me duly sworn did say, for him/herself, that
the within instrument was signed by him/her on behalf of said corporation by
authority of its board of directors.
------------------------------------
[Seal] Notary Public Commission expires:
____________
C-4
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
EXHIBIT A
Legal Description
[****]
C-5
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
EXHIBIT B
Permitted Exceptions
[****]
C-6
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
EXHIBIT D-1
FORM OF LEASE PAYMENT SCHEDULE
------------------------------
[****]
D-1-1
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
EXHIBIT D-2
SAMPLE LEASE PAYMENT SCHEDULE (FOR ILLUSTRATIVE PURPOSES ONLY]
--------------------------------------------------------------
[****]
D-2-1
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
EXHIBIT E
TIMELINE
----------------------------------------- --------------------------------------
[****] [****]
----------------------------------------- --------------------------------------
----------------------------------------- --------------------------------------
[****] [****]
----------------------------------------- --------------------------------------
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[****] [****]
----------------------------------------- --------------------------------------
----------------------------------------- --------------------------------------
[****] [****]
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[****] [****]
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[****] [****]
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[****] [****]
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[****] [****]
----------------------------------------- --------------------------------------
----------------------------------------- --------------------------------------
[****] [****]
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E-1
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
EXHIBIT F
RESERVED
F-1
EXHIBIT G
CORE AND SHELL WORK AND RELATED WORK
------------------------------------
[****]
G-1
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
EXHIBIT H
FORM OF MEMORANDUM OF LEASE
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
------------------------------------
------------------------------------
------------------------------------
Attn:
-------------------------------
--------------------------------------------------------------------------------
(Space Above for Recorder's Use)
MEMORANDUM OF LEASE(2)
-------------------
MICRON TECHNOLOGY, INC., a Delaware corporation ("Micron"),
hereby leases to PHOTRONICS, INC., a Connecticut corporation ("Photronics"),
that certain real property located in the City of Boise, Idaho and more
particularly described on Exhibit "A" attached hereto (the "Premises").
1. The rent payable by Photronics and the other terms of the
tenancy including conveyance of fee title to the premises upon expiration of the
Lease term subject to satisfaction of specified conditions are set forth in a
certain unrecorded lease instrument between Micron and Photronics dated as of
May 5, 2006 (the "Lease"), the provisions of which Lease are incorporated herein
by this reference, and covering the Premises. The term of the Lease shall be
---------------
(2) Subject to modification for any state specific requirements for recording
such as property tax id numbers and proper acknowledgment block.
H-1
for a period of five (5) full lease years, commencing as provided in the Lease,
unless sooner terminated as provided therein.
3. This instrument is executed solely for recording purposes and
nothing herein shall be deemed or construed to modify or vary the terms of the
Lease.
IN WITNESS WHEREOF, the undersigned have executed this Memorandum
of Lease as of the _____ day of ____________________, 2006.
PHOTRONICS, INC, a Connecticut MICRON TECHNOLOGY, INC., a Delaware
corporation corporation
By: By:
--------------------------------- --------------------------------
Title: Title:
------------------------------ -----------------------------
"Photronics" "Micron"
H-2
STATE OF____________________
COUNTY OF __________________
On ________________________, before me,_________________________,
Notary Public, personally appeared__________________________________________ and
__________________________________________, personally known to me OR proved to
me on the basis of satisfactory evidence to be the persons whose names are
subscribed to the within instrument and acknowledged to me that they executed
the same in their authorized capacities, and that by their signatures on the
instrument the persons, or the entity upon behalf of which the persons acted,
executed the instrument.
WITNESS my hand and official seal.
-----------------------------------------
Signature of Notary
STATE OF____________________
COUNTY OF __________________
On ________________________, before me,_________________________,
Notary Public, personally appeared__________________________________________ and
__________________________________________, personally known to me OR proved to
me on the basis of satisfactory evidence to be the persons whose names are
subscribed to the within instrument and acknowledged to me that they executed
the same in their authorized capacities, and that by their signatures on the
instrument the persons, or the entity upon behalf of which the persons acted,
executed the instrument.
WITNESS my hand and official seal.
-----------------------------------------
Signature of Notary
H-3
EXHIBIT I
FORM OF MEMORANDUM OF CANCELLATION OF LEASE
-------------------------------------------
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
----------------------
----------------------
----------------------
----------------------
--------------------------------------------------------------------------------
(Space Above for Recorder's Use)
MEMORANDUM OF CANCELLATION OF LEASE(3)
-----------------------------------
THIS MUTUAL CANCELLATION OF LEASE is made and entered into as of
the ______ day of _______________________, ______, by and between MICRON
TECHNOLOGY, INC., a Delaware corporation ("Micron"), and PHOTRONICS, INC., a
Connecticut corporation ("Photronics"), with respect to the following:
RECITALS
--------
A. Micron is the landlord and Photronics is the tenant under that
certain unrecorded lease dated May 5, 2006. Such instrument and any and all
prior amendments or supplements thereto are herein collectively referred to as
the "Lease."
B. The Lease is evidenced by a certain short form memorandum of
lease recorded on ______________________, 2006 as Instrument No. -__________-
____________ in the Office of the County Recorder of Ada County, Idaho.
C. The Lease describes certain real property located in the City
of Boise, County of Ada, State of Idaho and more particularly described on
Exhibit "A" attached hereto and incorporated herein by this reference (the
"Premises").
--------------------
(3) Subject to modification for any state specific requirements for recording
such as property tax id numbers and proper acknowledgment.
I-1
D. Micron and Photronics mutually desire to cancel and terminate
the Lease and all modifications, amendments and supplements thereof effective
___________________, which date shall be the date of cancellation and
termination of the Lease irrespective of the date of the execution and
recordation of this instrument.
NOW THEREFORE, for and in consideration of the Premises, and for
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Micron and Photronics do hereby mutually cancel the Lease and all
modifications, amendments and supplements thereof, and the leasehold created
thereby, effective on _________________.
PHOTRONICS, INC, a Connecticut MICRON TECHNOLOGY, INC., a
corporation Delaware corporation
By: By:
--------------------------------- -----------------------------
Title: Title:
------------------------------ --------------------------
"Photronics" "Micron"
I-2
STATE OF____________________
COUNTY OF __________________
On ________________________, before me,_________________________,
Notary Public, personally appeared__________________________________________ and
__________________________________________, personally known to me OR proved to
me on the basis of satisfactory evidence to be the persons whose names are
subscribed to the within instrument and acknowledged to me that they executed
the same in their authorized capacities, and that by their signatures on the
instrument the persons, or the entity upon behalf of which the persons acted,
executed the instrument.
WITNESS my hand and official seal.
--------------------------------------
Signature of Notary
STATE OF____________________
COUNTY OF __________________
On ________________________, before me,_________________________,
Notary Public, personally appeared__________________________________________ and
__________________________________________, personally known to me OR proved to
me on the basis of satisfactory evidence to be the persons whose names are
subscribed to the within instrument and acknowledged to me that they executed
the same in their authorized capacities, and that by their signatures on the
instrument the persons, or the entity upon behalf of which the persons acted,
executed the instrument.
WITNESS my hand and official seal.
--------------------------------------
Signature of Notary
I-3