Exhibit 10.1
LEASE AMENDMENT AND NOVATION AGREEMENT
THIS LEASE AMENDMENT AND NOVATION AGREEMENT (this "Agreement") is made
as of August 31, 2001, by and between FORTUNEFIRST, LLC, a California limited
liability company ("FortuneFirst"), whose address is 0000 Xxxxx Xxxxx Xxxxxx,
Xxx Xxxx, Xxxxxxxxxx 00000, HYNIX SEMICONDUCTOR AMERICA INC., a California
corporation ("Hynix"), whose address is 0000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx,
Xxxxxxxxxx 00000, and MMC TECHNOLOGY, INC., a California corporation ("MMC
Technology"), whose address is 0000 Xxxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx 00000.
This Agreement is also consented to by CAPMARK SERVICES, L.P., a Texas limited
partnership ("CapMark"), as authorized agent of La Salle Bank, National
Association, as Trustee for Nomura Asset Capital Securities Corporation
Commercial Mortgage Pass-Through Certificates, Series 1998-D6. In this
Agreement, FortuneFirst, Hynix and MMC Technology are sometimes identified, each
as, a "Party" and collectively as, the "Parties." The Parties hereby refer to
the following facts:
A. In connection with that certain $47,634,000 conduit mortgage loan
made by Nomura Asset Capital Corporation ("Nomura"), as lender, to FortuneFirst,
as borrower, dated as of February 27, 1998 (the "Nomura Loan"), FortuneFirst, as
landlord, and Hynix, as tenant, entered into that certain Lease Agreement, dated
as of February 27, 1998 (the "Fortune Drive Lease"), for those certain premises
consisting of approximately 141,187 square feet of space within three buildings
located at 0000 Xxxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx (the "Fortune Drive
Premises"). A true and correct copy of the Fortune Drive Lease is attached
hereto as Exhibit A.
B. Also, in connection with the Nomura Loan, Hynix Semiconductor
Inc. (formerly known as Hyundai Electronics Industries Co., Ltd.), a corporation
of the Republic of Korea ("Guarantor"), entered into a Lease Guaranty for the
Fortune Drive Lease in favor of FortuneFirst, dated as of February 27, 1998 (the
"Guaranty").
C. Pursuant to the provisions of the Fortune Drive Lease, Hynix is
not required to obtain the prior written consent of Nomura or CapMark, the
Nomura Loan servicing agent, for any sublease entered into by and between Hynix
and an Affiliate (as such term is defined in Section 9.1 of the Fortune Drive
Lease). In reliance thereon, FortuneFirst and Hynix have permitted their
Affiliate, MMC Technology, to occupy and conduct its business in the Fortune
Drive Premises, and have not required MMC Technology to enter into a written
sublease agreement with Hynix.
D. Maxtor Corporation, a Delaware corporation ("Maxtor"), is
acquiring all of the capital stock of MMC Technology from Hynix, as evidenced by
that certain Agreement and Plan of Reorganization dated as of August 17, 2001
(the "Plan of Reorganization"), and as a consequence thereof the Parties desire
to enter into an amendment and a novation of the Fortune Drive Lease, to be
effective as of the Effective Date (defined below), so that: (1) Hynix is
released from all of its obligations under the Fortune Drive Lease, as amended,
(2) Hynix assigns and transfers all of its right, title and interest under the
Fortune Drive Lease, as amended, to MMC Technology, (3) MMC Technology assumes
all of Hynix's obligations under the Fortune Drive Lease, as amended, and (4)
FortuneFirst considers MMC Technology to be its tenant for all purposes under
the Fortune Drive Lease, as amended.
E. This Agreement is not intended to be construed as in any way
modifying the loan obligations for which the Fortune Drive Premises are pledged
as collateral.
F. In connection with the execution and delivery of this Agreement,
Maxtor will enter into a lease guaranty in favor of FortuneFirst with respect to
the obligations of MMC Technology under the Fortune Drive Lease, as amended by
this Agreement.
NOW, THEREFORE, the Parties hereby agree as follows:
1. Effective Date. The effective date of this Agreement shall be the
date that Maxtor acquires all of the capital stock of MMC Technology from Hynix
(the "Effective Date").
2. Fortune Drive Lease Amendments. As of the Effective Date of this
Agreement, the Fortune Drive Lease is amended as follows:
a. Definition of Tenant. For all purposes, the term Tenant
(defined in the Preamble of the Fortune Drive Lease) means and refers
exclusively to "MMC Technology, Inc., a California corporation," and all
references made in the Fortune Drive Lease to "Hyundai Electronics America, a
California corporation," are deleted.
b. Term. The first paragraph of Section 3.1 of the Fortune
Drive Lease is deleted and replaced in its entirety by the following:
"3.1 Commencement Date; Initial Term. The initial term of
this Lease (the "Initial Term") shall commence on the
Commencement Date and shall expire on the tenth (10th)
anniversary of the day preceding the first full calendar
month of the Initial Term."
c. Minimum Rent. Section 5.1 of the Fortune Drive Lease is
deleted and replaced in its entirety by the following:
"5.1 Minimum Rent. The annual minimum rent ("Minimum
Rent") payable by Tenant to Landlord during the Initial
Term shall be in accordance with the following schedule:
Beginning on the Effective Date through February 28, 2008,
Tenant shall pay to Landlord in advance of the first day
of each month of the term hereof the sum of $162,365.05
which is rate of $1.15 per square foot per month.
Rent for any period during the Initial Term hereof which
is for less than one full month shall be a daily prorated
portion of the monthly installment. Rent shall be payable
in lawful money of the United States to Landlord at the
address stated herein or to such other persons or at such
other places as Landlord may designate in writing."
d. Exhibit B - "CPI Factor" Definition. Exhibit B to the
Fortune Drive Lease is deleted in its entirety.
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e. Permitted Uses; Use Restrictions. Section 5.4 of the
Fortune Drive Lease is amended by deleting the section heading and the first two
sentences thereof and replacing them with the following section heading and
sentences:
"5.4 Permitted Uses; Use Restrictions. The Premises shall
be used and occupied only for the offices and
manufacturing operations heretofore conducted on said
Premises, specifically the manufacture of discs for the
computer hard drive market and related development and for
no other purposes. Use of hazardous or noxious materials
is authorized within the scope of the prior uses
heretofore conducted on the Premises by Tenant and in
accordance with such intended purposes above set forth,
and only in accordance with all Federal, State and local
statutes, regulations, ordinances and permitting
requirements applicable to the Tenant's business and the
materials utilized; provided, however, that such uses will
not: (i) have a material adverse effect on the fair market
value of the Premises, or (ii) result in or give rise to
any material environmental deterioration or degradation of
the Premises, including without limitation, mining or the
removal of oil, gas or minerals. Tenant shall not create
or suffer to exist any public or private nuisance,
hazardous condition (except as specifically provided
above), illegal condition or waste on or with respect to
the Premises. Tenant and its employees and business
invitees shall observe and cooperate with the legal
requirements of such permitted operations and as may be
from time to time required by the laws, regulations,
permitting authorities and by the Landlord for the
operation of the facility on the Premises."
f. Subordination and Nondisturbance Agreement. Section 8.1 of
the Fortune Drive Lease is amended by adding the following sentence to the end
of the existing paragraph:
"The form of nondisturbance and attornment agreement
attached to this Lease as Exhibit B is hereby accepted by
Nomura Asset Capital Corporation (or by CapMark, its loan
servicing agent), Landlord and Tenant for the purpose of
securing the rights of Tenant under this Lease against any
bankruptcy, foreclosure, or other insolvency action, filed
as a result of a default by Landlord under the provisions
of that certain $47,634,000 conduit mortgage loan made by
Nomura Asset Capital Corporation to Landlord, and dated as
of February 27, 1998."
g. Foreclosure. Section 8.3 of the Fortune Drive Lease is
amended by deleting the words "upon request of any Successor" from subparagraph
(ii) thereof.
h. Paramount Lease. Section 8.4 of the Fortune Drive Lease is
deleted in its entirety.
i. Landlord's Right of Entry. Section 22 of the Fortune Drive
Lease is amended by adding the following sentence to the end of the existing
paragraph:
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"As used in this Section 22, the phrase "at all reasonable
times" shall mean that Landlord, the Holder of any
Mortgage, or any other third party who intends to enter
the Premises, must first provide Tenant with forty-eight
(48) hours prior written notice of any non-emergency entry
to be undertaken by any such party."
j. Notices. Section 28 of the Fortune Drive Lease is amended
by deleting the address for notice to Hyundai Electronics America in its
entirety and by replacing it with the following:
"If to Tenant: MMC Technology, Inc.; 0000 Xxxxxxx Xxxxx;
Xxx Xxxx, Xxxxxxxxxx 00000; Attention: Manager;" and
"with a copy to: Maxtor Corporation; 000 XxXxxxxx
Xxxxxxxxx; Xxxxxxxx, Xxxxxxxxxx 00000; Attention: General
Counsel"
k. Operations. Section 44.5 of the Fortune Drive Lease is
amended by adding the following sentence to the beginning of the existing
paragraph:
"Except as is necessary or required in connection with
Tenant's business of the manufacturing of disk drive media
on the Premises,"
l. Exhibits and Attachments. Section 48 of the Fortune Drive
Lease is deleted in its entirety and is replaced by the following:
"Section 48. EXHIBITS. The following exhibits are attached
hereto and form a part of this Lease:
A. Exhibit A - Legal Description of the Premises; and
B. Exhibit B - Form of Nondisturbance and Attornment
Agreement."
3. No Other Amendments to Fortune Drive Lease. Except as expressly
provided in this Agreement, all other terms and conditions of the Fortune Drive
Lease shall remain unchanged and in full force and effect.
4. Warranties. Hynix hereby warrants that it has full power and
authority to enter into a novation and amendment of the Fortune Drive Lease, and
that, except for the use by MMC Technology, its Affiliate (as such term is
defined in Section 9.1 of the Fortune Drive Lease), that is referenced in
Recital C, it has not previously sold, subleased, assigned, hypothecated or
otherwise transferred any of its right, title and interest in and to the Fortune
Drive Lease.
5. Option to Extend Initial Term. The Parties anticipate that fee
title to the real property located at 0000 Xxxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx
(the "Property") will be reconveyed by FortuneFirst to Hynix when the loan by
Nomura, as serviced by CapMark, has been paid in full on or about February 27,
2008. When such reconveyance of fee title to the Property is effected, as a
result of the full repayment of the Nomura Loan or in connection with the
refinancing of the Nomura Loan, FortuneFirst and Hynix hereby agree, each for
itself, that MMC
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Technology shall have the option (the "Lease Option") to extend the term of the
Fortune Drive Lease for the Fortune Drive Premises for a period of five (5)
years following the expiration of the Initial Term, on such commercially
reasonable terms as are in effect at the time for comparable space in similar
buildings in the metropolitan area of San Jose, California. MMC Technology shall
provide written notice of its intent to exercise the Lease Option no earlier
than nine (9) months and no later than six (6) months prior to the expiration of
the Initial Term.
6. Acknowledgment and Novation. The Parties hereby acknowledge and
agree that as of the Effective Date of this Agreement: (a) Hynix is released
from all of its obligations under the Fortune Drive Lease, as amended, (b) Hynix
assigns and transfers all of its right, title and interest under the Fortune
Drive Lease, as amended, to MMC Technology, (c) MMC Technology assumes all of
Hynix's obligations under the Fortune Drive Lease, as amended, and (d)
FortuneFirst considers MMC Technology to be its tenant for all purposes under
the Fortune Drive Lease, as amended.
7. Estoppel. As of the Effective Date of this Agreement,
FortuneFirst certifies: (a) to its knowledge, the copy of the Fortune Drive
Lease attached hereto as Exhibit A is a complete and accurate copy of the
Fortune Drive Lease as currently in effect; (b) to its knowledge, neither
FortuneFirst nor Hynix is in default of its respective obligations under the
Fortune Drive Lease, and no event has occurred which, with the giving of notice
or lapse of time or both, would constitute a breach or default by either
FortuneFirst or Hynix under the Fortune Drive Lease; (c) except as amended and
modified pursuant to the terms of this Agreement, the Fortune Drive Lease has
not been previously amended or modified; and (d) Hynix has not prepaid any
Minimum Rent, Additional Rent or other charges for any period commencing at any
time after July 1, 2001 under the Fortune Drive Lease.
8. Attorneys' Fees. In the event of the bringing of any action or
suit by a Party hereto against another Party hereunder by reason of any breach
of any of the provisions on the part of the other Party arising out of this
Agreement, then in that event the Prevailing Party shall be entitled to have and
recover of and from the other Party all costs and expenses of the action or
suit, including reasonable attorneys' fees (whether incurred in litigation, on
appeal, discretionary review or otherwise), it being understood and agreed that
the determination of "Prevailing Party" shall be included in the matters which
are the subject of such action or suit.
9. Miscellaneous. This Agreement shall be governed by, interpreted
under, and construed and enforced in accordance with, the laws of the State of
California, and shall be binding upon and inure to the benefit of the
successors, assigns, personal representatives, heirs and legatees of the
respective parties hereto. This Agreement may be executed in two or more
counterparts each of which shall be deemed an original, and all of which taken
together shall constitute one and the same instrument, and may not be amended or
modified except in writing executed by all of the Parties hereto. The headings
of sections are inserted for convenience only and are not intended to limit or
define the scope or effect of any provision of this Agreement. The invalidity,
illegality or unenforceability of any provision of this Agreement shall not
affect the enforceability of any other provision of this Agreement, all of which
shall remain in full force and effect. Time is of the essence of this Agreement
and of the obligations required hereunder. The Parties agree to execute all
documents and instruments reasonably required in order to consummate the
transactions contemplated by this Agreement. Capitalized terms used
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in this Agreement and not otherwise defined shall have the same meanings given
to them in the Fortune Drive Lease.
IN WITNESS HEREOF, the Parties have executed this Agreement on the date
first referenced above.
"FORTUNEFIRST" "HYNIX"
FORTUNEFIRST, LLC, HYNIX SEMICONDUCTOR AMERICA INC.,
a California limited liability company a California corporation
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------------ ----------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx
---------------------------------- --------------------------
Title: CFO Title: CFO
--------------------------------- -------------------------
"MMC TECHNOLOGY"
MMC TECHNOLOGY, INC.,
a California corporation
By: /s/ Taj Giulamani
------------------------------------
Name: Taj Giulamani
----------------------------------
Title: VP Finance
---------------------------------
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CONSENT
CapMark Services, LP, a Texas limited partnership, as authorized agent of La
Salle Bank, National Association, as Trustee for Nomura Asset Capital Securities
Corporation Commercial Mortgage Pass-Through Certificates, Series 1998-D6,
hereby gives its unconditioned consent to the provisions of this Lease Amendment
and Novation Agreement.
"CapMark"
La Salle Bank, National Association,
as Trustee for Nomura Asset Capital
Securities Corporation Commercial
Mortgage Pass-Through Certificates,
Series 1998-D6
By: CapMark Services, L.P.,
a Texas limited partnership,
its authorized agent
By: Pearl Mortgage, Inc.
a Delaware corporation, its sole
general partner
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
--------------------------
Title: Servicing Officer V.P.
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EXHIBIT A
[Copy of Fortune Drive Lease]
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EXHIBIT B
[Form of Subordination, Nondisturbance and Attornment Agreement]
9
0000 XXXXXXX XXXXX
LEASE AGREEMENT
by and between
FORTUNEFIRST LLC
(Landlord)
and
HYUNDAI ELECTRONICS AMERICA
(Tenant)
LEASE AGREEMENT
THIS LEASE AGREEMENT is made as of February 27. 1998 (the "Effective
Date") by and between, FORTUNEFIRST LLC, a California limited ("Landlord"), and
HYUNDAI ELECTRONICS AMERICA, a California corporation ("Tenant").
EXPLANATORY STATEMENT
Tenant desires to least the Premises with a Building of approximately
137,187 square feet, as more Particularly shown on Exhibit A (the "Building"),
from Landlord and Landlord desires to rent the Premises to Tenant, subject to
and in accordance with the terms and provisions hereafter set forth.
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby acknowledged, the parties, intending to be legally bound, mutually agree
as follows:
SECTION 1. DEFINITIONS. The following terms are defined in the following
sections of this Lease:
Term Section
---- -------
Additional Rent 27
Alterations 11.1
Commencement Date 3.1
CPI Factor 5.1
Default Pace 5.3
Environmental Statutes 4.4
Event of Default 25-2
Hazardous Substance 44.5
Holder 8.1
Impositions 6.1
Increased Rate 5.1
Initial Term 3.1
Landlord 36
Minimum Rent 5.1
Mortgage 8.1
Notices 28
Open Areas and Facilities 13.1
Overlessor 8.4
Payment Date 5.2
Premises Explanatory Statement
Prohibited Use 5.4
Property Explanatory Statement
Successor 8.3
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Term 3.2
Transfer 9.4
Twenty Year Treasury Rate 5.1
SECTION 2. LEASE OF THE PREMISES. In consideration of the rents,
agreements and conditions herein contained, Landlord hereby leases to Tenant and
Tenant Hereby rents from Landlord, the Premises.
SECTION 3. INITIAL TERM.
3.1 Commencement Date; Initial Term. The initial term of this Lease
(the "INITIAL TERM") shall commence on the Commencement Date and shall expire on
the fifteenth (15th) anniversary of the day preceding the first full calendar
month of the Initial Term.
For purposes of this Lease, the term "COMMENCEMENT DATE" shall mean
February 27, 1998. Landlord and Tenant agree, upon demand of the other, to
execute an agreement stipulating the Commencement Date and the termination dare
of the Initial Term as soon as the Commencement Date has been determined.
3.2 Definition of "Term". As used in this Lease, the word "Term"
means the Initial Term.
SECTION 4. LEASE YEAR. The first lease year of this Lease shall commence
on the Commencement Dare and shall end at the Close of the twelfth (12th) full
calendar month of the Term; thereafter, each lease year shall consist of twelve
(12) full calendar months commencing with each anniversary of the first day of
the first full calendar month of the first lease year, except for the last lease
year, which shall end on the last day of the Term.
SECTION 5. MINIMUM RENT.
5.1 Minimum Rent. The annual minimum rent ("MINIMUM RENT") payable by
Tenant to Landlord (A) during the first ten (10) years of the Initial Term,
shall be an amount equal to the product obtained by multiplying $1,893,181 by
the CPI Factor and (B) during the last five (5) years of the Initial Term, shall
be an amount equal to the product obtained by multiplying (i) the quotient
obtained by dividing (a) the product obtained by multiplying $1,893,181 by the
Increased Rate by (b) 8.50% by (ii) the CPI Factor. For purposes hereof,
"INCREASED RATE" means a percentage equal to the greater of (i) the sum of 8.50%
plus 5%, and (ii) as of the date that is ten (10) years after the Commencement
Date, the sum of the Twenty Year Treasury Rate plus 6.50%, such Increased Rate
not to exceed the maximum late charge permitted to be charged under the laws of
the State of California. For purposes hereof, "CPI FACTOR" is defined on Exhibit
B. For purposes hereof, "TWENTY YEAR TREASURY RATE" means the yield, calculated
by linear interpolation (rounded to three decimal places) of the yields of
United States Treasury Constant Maturities with terms (one longer and one
shorter) most nearly
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approximating that of noncallable United States Treasury obligations having
maturities as close as possible to twenty (20) years from the date that is ten
(10) years after the Commencement Date on the basis of Federal Reserve
Statistical Release H.15-Selected Interest Rates under the heading U.S.
Governmental Security/Treasury Constant Maturities, or other recognized source
of financial market information selected by Lender for the week prior to the
date that is ten (10) years after the Commencement Date.
5.2 Payment of Minimum Rent. Tenant shall pay to Landlord all Minimum
Rent payable by Tenant under this Lease in equal monthly installments, in
advance, on each payment date (hereinafter, the "PAYMENT DATE"). The- Payment
Date shall be the eighth (8th) day of each calendar month during the Term of the
Lease; provided, however, that for purposes of making payments hereunder, if the
eighth (8th) day of a given month shall not be a Business Day (as such term is
defined below), then the Payment Date for such month shall be the next
succeeding Business Day. For purposes of this Lease Agreement, "BUSINESS DAY"
shall mean any day other than (i) a Saturday or a Sunday, and (ii) a day on
which federally insured depository institutions in Xxx Xxxx, Xxx Xxxx, Xxxxxxx,
Xxxxxxxx or the jurisdiction where the Building is located, are authorized or
obligated by law, regulation, governmental decree or executive order to be
closed.
5.3 Late Charge; Interest. In the event any installment of Minimum
Rent or Additional Rent shall not be paid by Tenant on the date such installment
is due, then Tenant shall pay (A) an administrative late charge equal to the
lesser of (i) five percent (5%) of any unpaid amount and (ii) the maximum late
charge permitted to be charged under the laws of the State of California and (B)
all unpaid Minimum Rent payments and all future Minimum Rent Payments shall be
increased by the lesser of (i) a percentage equal to the quotient obtained by
dividing (A) the sum of 8.50% and 5% by (B) 8.50% and (ii) the maximum late
charge permitted to be charged under the laws of the State of California (A) and
(B) above, collectively, the "DEFAULT RATE").
5.3.1 Tenant's Continuing Obligations. In the event that Tenant
ceases conducting business at the Premises, then Tenant shall retain all of its
other obligations under this Lease, including the obligation to pay Rent and
Additional Rent.
5.4 Use Restrictions. Tenant may occupy and use the Premises for an
office headquarters and related uses, or for any other lawful purpose, (except
that the Premises may not be used for or associated with a pornographic shop,
adult book store, or massage parlor) so long as such other lawful purpose would
not (i) have an adverse effect on the value of the Premises, (ii) increase (when
compared to use as an office headquarters) the likelihood of incurring liability
under any provisions of any Environmental Laws, or (iii) result in or give rise
to any material environmental deterioration or degradation of the Premises,
including without limitation, mining or the removal of oil, gas or minerals, or
(iv) violate any covenants, easement agreements, deed restrictions, agreements
of record affecting the Premises, or applicable laws. Tenant shall not create or
suffer to exist any public or private nuisance, hazardous or illegal condition
or waste on or with respect to the Premises. Tenant shall not use, occupy or
permit any of the Premises to be used or
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occupied, nor do or permit anything to be done in or on any of the Premises, in
a manner which would (A) make void or voidable any insurance which Tenant is
required hereunder to maintain then in force with respect to any of the
Premises or (B) affect the ability of Tenant to obtain any insurance which
Tenant is required to furnish hereunder, or (C) impair Landlord's title to the
Premises, or in such manner as might reasonably make possible a claim or claims
of adverse usage or adverse possession by the public, as such, or third Persons,
or of implied dedication of the Premises or any portion thereof. Nothing
contained in this Lease Agreement and no action by Landlord shall be construed
to mean that Landlord has granted to Tenant any authority to do any act or make
any agreement that may create any such third party or public right, title,
interest, lien, charge or other encumbrance upon the estate of the Landlord in
the Premises.
SECTION 6. REAL ESTATE TAXES AND IMPOSITIONS.
6.1 Payment. In addition to the Minimum Rent referred to above,
Tenant shall pay to the Landlord throughout the Term hereof, as Additional Rent
hereunder, on or before the Payment Date (or sooner if elsewhere herein
required), an amount equal to one-tenth of the annual impositions as estimated
by Landlord. As used in this Lease Agreement, "IMPOSITIONS" shall mean: all
ground rents and all taxes (including, without limitation, all real estate, ad
valorem or value added, sales (including those imposed on lease rentals), use,
single business, gross receipts, value added, intangible transaction privilege,
privilege, license or similar taxes), assessments (including, without
limitation, to the extent not discharged prior to the date hereof, all
assessments for public improvements or benefits, whether or not commenced or
completed within the terms of this Lease), water, sewer or other rents and
charges, excises, levies, fees (including, without limitations license, permit,
inspection, authorization and similar fees), and all other governmental
charges, in each case whether general or special, ordinary or extraordinary,
foreseen or unforeseen, of every character in respect of the Premises and/or
Building, (including all interest and penalties thereon), which at any time
prior to, during or in respect of the term hereof may be assessed or imposed on
or in respect of or be a lien (or anything similar in any way) upon (i) Landlord
(including, without limitation, all income, franchise, single business or other
taxes imposed on Landlord for the privilege of doing business in the
jurisdiction in which the Premises and/or Building is located) or Holder, (ii)
the Premises and/or Building or any part thereof, or (iii) any occupancy,
operation, use or possession of, or sales from, or activity conducted on, or in
connection with the Premises and/or Building or the leasing or use of the
Premises and/or Building or any part thereof, or the acquisition or financing of
the acquisition of the Premises and/or Building by Landlord. "Impositions" and
the amount required to be paid by Tenant shall also include all amounts which
Landlord may be required to pay, or shall have agreed to pay, in lieu of any
item within the definition of "Impositions" set forth hereinabove. If at any
time prior to the expiration of the Terms of this Lease, any new Imposition
shall be imposed upon Landlord or the Premises in lieu or in place of, or in
addition to any other Imposition included in this Section 6.1 above, and shall
be measured by or based upon net income or profits derived from real estate (as
distinguished from net income or profits generally), then such new Imposition
shall be included in "Impositions" to the extent that such new Imposition would
be payable if the Premises were the only property of Landlord
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subject thereto and the income and profits received by Landlord from the
Premises were the only income and profits of Landlord. Tenant also shall pay to
Landlord, at least thirty days before any fine, penalty, interest or cost may be
added thereto for the non-payment thereof the amount by which the Impositions
becoming due exceed the monthly payments on account thereof previously made by
Tenant. The amounts paid to Landlord pursuant to this Section 6.1 shall be used
by Landlord co pay the "Imposition," but such amounts shall not be deemed to be
trust fund, and no interest shall be payable thereon.
SECTION 7. UTILITIES. Tenant shall contract for, and pay promptly when
due, the charges for all utility services rendered or furnished to the Premises
(whether by meter or submeter) including but not limited to hear, water, gas,
electricity and telephone. If Tenant defaults in the payment of any such utility
charges, Landlord may, at its option, pay them for Tenant's account, in which
event Tenant shall promptly reimburse Landlord within two (2) days after
Landlord's written request therefore. Landlord shall have no liability to Tenant
for disruption of utilities to the Premises.
SECTION 8. SUBORDINATION AND NONDISTURBANCE.
8.1 Agreement. Unless Landlord elects otherwise, Tenant's rights
under this Lease are and shall always be subordinate to (be operation and effect
of any superior lease, mortgage, or deed of trust now or hereafter placed upon
the Premises or any part thereof by Landlord, or any renewal, modification,
consolidation, replacement, or extension of any such mortgage or deed of trust
(the "Mortgage"); provided, however, that with respect to any ground or land
lease, mortgage, or deed of trust such subordination shall not be effective
unless each holder of an interest in the Premises which may be superior to
Tenant's interest under this Lease (the "HOLDER") executes a nondisturbance,
subordination, and attornment agreement in standard form as reasonably required
by any tender of Landlord or otherwise as reasonably acceptable to Tenant and
such Holder. The foregoing subordination shall be automatic and without the
necessity of any further act on the part of Tenant to effectuate such
subordination. However, Tenant agrees to execute and deliver upon demand such
instruments evidencing and confirming such subordination of this Lease as shall
be desired by the Holder of any Mortgage.
8.2 Lease May Be Superior. Notwithstanding Section 8.1, any Holder of
any Mortgage may at any time subordinate its Mortgage to this Lease without
Tenant's consent, b) notice in writing co Tenant, and thereupon this Lease shall
be deemed prior to such Mortgage without regard their respective dates of
execution and delivery and in that event such Holder shall have the same rights
with respect to this Lease as though it had been executed prior to the execution
and delivery of the Mortgage and had been assigned to such Holder.
8.3 Foreclosure. If any Mortgage is foreclosed, or Landlord's
interest under this Lease is conveyed or transferred in lieu of foreclosure, (i)
no person which, as a result of any of the foregoing, has succeeded to the
interest of Landlord in this Lease and none of the successor's of assigns of
such person (any such person, and his or its successors and assigns, being
hereinafter called a "SUCCESSOR") shall be liable for any default by
6
Landlord or any other matter which occurred prior to the date such Successor
succeeded to Landlord's interest in this Lease nor shall such Successor be bound
by or subject to any offsets or defenses which Tenant may against any
predecessor in interest of such Successor, (ii) upon request of any Successor,
Tenant shall attorn, as Tenant under this Lease subject to the provisions of
this Section 8.3, to such Successor and shall execute and deliver such
instruments as may be necessary or appropriate to evidence such attornment
within 10 days after receipt of a written request to do so; and (iii) no
Successor shall be bound to recognize any prepayment by more than 30 days of any
rent, additional rent or other sum payable hereunder.
8.4 Paramount Lease. If Landlord is or becomes lessee of the Premises
or the building, then, subject to the provisions of Section 8.1 above, Tenant
agrees that Tenant's possession and estate shall be that of a subtenant and
subordinate to the interest of Landlord's lessor, its heirs, personal
representatives, successors and assigns (such lessor and other persons being
hereinafter collectively referred to as the "OVERLESSOR") without the necessity
of any further action on the part of Tenant to effectuate such subordination,
but notwithstanding the foregoing if Landlord's tenancy shall terminate either
by expiration, forfeiture or otherwise, then, if Overlessor shall so request,
Tenant shall attorn to Overlessor and recognize Overlessor as Tenant's landlord
upon the terms and conditions of this Lease for the balance of the term hereof;
and any extensions or renewals hereof. Tenant shall execute, acknowledge and
deliver, upon demand by Landlord or any Overlessor, such further instruments
evidencing such subordination of Tenant's right, title and interest under this
Lease to the interests of Overlessor, and such further instruments of attornment
and nondisturbance, as shall be desired by such Overlessor, which instruments,
if Overlessor is an institutional lender, shall contain such other provisions as
are normally included therein by Overlessor.
SECTION 9. ASSIGNMENT AND SUBLETTING.
9.1 Consent Required. Except as herein expressly provided, neither
this Lease nor any interest of Tenant hereunder shall be assigned, mortgaged,
pledged or otherwise encumbered, or the Premises sublet, in whole or in part, or
used or occupied, to or by anyone without Landlord's prior written consent,
which consent may be withheld in the sole and absolute discretion of Landlord;
provided, however, that Tenant may sublease to an Affiliate of Tenant without
Lender's prior written consent. For the purposes of this Lease, "Affiliate" of
any specified entity means any other entity controlling, controlled by or under
common control with such specified entity. For the purposes of this Lease,
"control" when used with respect to any specified entity means the power to
direct the management and policies of such entity, directly or indirectly,
whether through the ownership of voting securities or other beneficial
interests, by contract or otherwise; and the terms "controls," "controlling" and
"controlled" have the meanings correlative to the foregoing. If Tenant is a
corporation or other entity, any transfer, sale, pledge or other disposition, in
any single transaction or cumulatively prior to the expiration of the term of
this Lease, of fifty percent or more of the stock, or interest in, Tenant, shall
be deemed an assignment of this Lease and, therefore, prohibited without the
prior written consent of Landlord.
7
9.2 Additional Requirements. In the case of any assignment or
subletting permitted pursuant to this Section 9, Tenant or anyone holding under
Tenant shall in each case comply with each of the following conditions:
(a) A duplicate original executed copy of any such assignment
or sublease shall be delivered to Landlord thirty (30) days before the
commencement date thereof; and, in the case of any assignment, an assumption by
assignee of all obligations of Tenant arising under this Lease, reasonably
satisfactory in form and substance to Landlord; and
(b) Each sublease shall provide that, in the event of
cancellation of this Lease, the subtenant under such sublease shall, at the
option of Landlord, attorn to and become the direct subtenant of Landlord on the
same terms and conditions as are provided in the Sublease, except that Landlord
shall not be liable for defaults of Tenant as sublandlord occurring before such
attornment.
9.3 Continuing Liability. Notwithstanding anything herein to the
contrary, no assignment or subletting shall operate to release or discharge
Tenant from liability hereunder, it being understood and agreed that the
liability of Tenant and each assignee of Tenant's interest shall be joint and
several and survive any such assignment or sublease, and shall continue with the
same force and effect as if no such assignment or sublease had been made.
9.4 Proceeds, Etc. If there is an assignment or subletting of any
kind, (a "TRANSFER"), then Tenant shall pay to Landlord forthwith upon Tenant's
receipt thereof, as additional rent, all sums and other economic consideration
(whether by lump sum payment or otherwise) received by Tenant in any month as a
result of the Transfer whether denominated rentals or otherwise which exceed, in
the aggregate, the Minimum Rent and Additional Rent which Tenant is obligated to
pay Landlord under this Lease in the same month (prorated to reflect obligations
allocable to that portion of the Premises which is the subject of the Transfer),
all without affecting or reducing any other obligation of Tenant hereunder:
provided that in the case of an assignment of this Lease such additional rent
payment by Tenant to Landlord shall equal the entire consideration for such
assignment. If Landlord gives Landlord's written consent to Transfer or if a
Request Notice is given and such Transfer is not made within sixty (60) days
thereafter, then Landlord's written consent to the Transfer shall be
automatically null, void and of no force or effect whatsoever and/or another
Request Notice must be sent. The right to terminate shall not be exhausted by
any one exercise thereof by Landlord but shall be exercisable from time to time
and as often as there is an applicable proposed Transfer. If after receipt of
the Request-Notice Landlord requests additional or further information which
Landlord reasonably requires to consider the proposed Transfer, Tenant shall
promptly deliver such information to Landlord.
9.5 In Bankruptcy. Notwithstanding any other provision in this Lease,
any person to which this Lease is assigned pursuant to the provisions of the
Bankruptcy Code, 11 U.S.C. Section 101 et seq., shall be deemed without further
act to have assumed all of the
8
obligations and burdens arising under this Lease on or after the date of such
assignment. Any such assignee shall upon demand execute and deliver to Landlord
an instrument satisfactory to Landlord confirming such assumption.
SECTION 10. MAINTENANCE OF PREMISES. Tenant shall, throughout the Term
of this Lease and at its sole cost and expense, take good care of the Building
and the other improvements now or hereafter located upon the Premises, and any
sidewalks, parking areas, curbs and access ways upon the Premises, and keep them
in good order and condition, and promptly at Tenant's own cost and expense make
all repairs necessary to maintain such good order and condition, whether such
repairs be interior or exterior, structural or nonstructural, ordinary or
extraordinary, foreseen or unforeseen. When used in this Section, the term
"repairs" shall include replacements and renewals when necessary to maintain
such Building and other improvements in good order and condition, and all such
repairs made by Tenant shall be at least equal in quality and usefulness to the
Building and such other improvements as may from time to time be located upon
the Premises. Tenant shall keep and maintain all portion of the Premises and any
sidewalks, parking areas, curbs and access ways adjoining them in a clean and
orderly condition free of accumulation of dirt, rubbish, snow and ice.
SECTION 11. TENANT'S ALTERATIONS.
11.1 Exterior and/or Structural Alterations. Tenant shall not make any
alterations, additions, or improvements ("Alterations") of a structural nature
to the exterior portions of the Premises or any structural Alterations to the
interior of the Premises, without Landlord's prior written consent, which
consent shall not be unreasonably withheld, conditioned or delayed. Any
Alterations made by Tenant shall immediately become the property of Landlord and
shall remain upon the Premises. No such Alterations shall increase or decrease
the footprint of the Premises.
11.2 Interior Nonstructural Alterations. Tenant may make nonstructural
interior Alterations, as it deems necessary from time to time without Landlord's
consent as long as such Alterations are done in compliance with applicable law
and in a good and workmanlike manner and at the end of the Term Tenant removes
any such Alterations as are requested by Landlord, in writing, and repairs any
damage caused by the installation, removal or presence of such Alterations.
SECTION 12. SIGNS. Tenant shall have the right to install at its expense
Tenant's standard signage, both interior and exterior on or about the Premises,
provided that Such Signs Comply with applicable provisions of law, and will not
reduce the value of the Building and the Premises. Tenant agrees to maintain any
sign, billboard, marquee, awning, display, decoration, placard, lettering, or
advertising matter in good condition and repair at all times and in compliance
with all applicable provisions of law. Tenant shall have the full and exclusive
control over the design, content, shape, and color of its signage at the
Premises, provided such signage will not reduce the value of the Building and
the Premise.
9
SECTION 13. OPEN AREAS AND FACILITIES.
13.1 Operation and Maintenance of Open Areas and Facilities. Tenant,
at its sole cost, shall operate, manage, equip, light, keep and maintain the
areas of the Premises not covered by the Building (the "OPEN AREAS AND
FACILITIES") in good order and repair, including, but not limited to, restriping
of parking areas; repairing and replacing paving and the substrata thereof for
parking, driveway, sidewalk and curb facilities; keeping the Open Areas and
Facilities properly drained, reasonably free of ice, snow, trash, rubbish,
waste, and obstruction; and in a neat, clean, orderly and sanitary condition;
keeping the Open Areas and Facilities suitably lit; promptly removing abandoned
cars other debris; maintaining signs, markers, and other means and methods of
pedestrian and vehicular traffic control; keeping all bushes adequately mulched,
grass cut and plants trimmed and pruned; and keeping all landscaping adequately
irrigated. Also, Tenant shall, at its cost, be responsible for cleaning and
repair of sidewalks, curbs, elevated walkways and stairways, maintenance and
repair of the landscaping and the irrigation systems; maintenance and repair of
the lighting systems in the parking and walkway areas; janitorial services in
the Open Areas and Facilities, maintenance and repair of the storm drainage and
sanitary sewer systems; trash disposal, maintenance and repair of utility
systems; and compliance with environmental requirements; remediating any
condition resulting from the improper or unlawful discharge, disposal, or
release by Tenant or any other person of any Hazardous Substance as defined in
Section 44.5.
SECTION 14. NET LEASE; BOND LEASE.
14.1 TENANT PAYS ALL CHARGES. TENANT ACKNOWLEDGES AND AGREES THAT,
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, THIS LEASE IS A COMPLETE NET
LEASE TO LANDLORD, THAT THIS LEASE SHALL YIELD TO LANDLORD THE NET MINIMUM RENT
(AND ADDITIONAL RENT, IF ANY) SPECIFIED HEREIN, THAT LANDLORD IS NOT RESPONSIBLE
FOR ANY COSTS, CHARGES, EXPENSES, OR OUTLAYS OF ANY NATURE WHATSOEVER ARISING
FROM OR RELATING TO THE PREMISES OR THE USE AND OCCUPANCY THEREOF, OR THE
CONTENTS THEREOF OR THE BUSINESS CARRIED ON THEREIN, AND TENANT SHALL PAY ALL
CHARGES, IMPOSITIONS, COSTS, AND EXPENSES OF EVERY NATURE AND KIND RELATING TO
THE PREMISES.
14.2 BOND LEASE. THIS LEASE IS A BOND LEASE AND THE MINIMUM RENT,
ADDITIONAL RENT AND ALL OTHER SUMS PAYABLE BY TENANT HEREUNDER SHALL BE PAID IN
ALL EVENTS AND WITHOUT NOTICE OR DEMAND, AND WITHOUT COUNTERCLAIM, SETOFF,
DEDUCTION, DEFENSE, ABATEMENT, SUSPENSION, DEFERMENT, OR DIMUTION OF ANY KIND,
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN. THIS LEASE SHALL NOT TERMINATE,
NOR SHALL TENANT HAVE ANY RIGHT TO TERMINATE OR AVOID THIS LEASE OR BE ENTITLED
TO THE ABATEMENT OF ANY RENTS HEREUNDER OR ANY REDUCTION THEREOF, NOR SHALL THE
OBLIGATIONS AND LIABILITIES OF TENANT HEREUNDER
10
BE IN ANY WAY AFFECTED FOR ANY REASON INCLUDING (A) DAMAGE TO, DESTRUCTION OF OR
ANY TAKING OF ANY PART OF THE PREMISES, (B) ANY RESTRICTION OF OR INTERFERENCE
WITH ANY USE OF THE PREMISES, (C) ANY MATTER AFFECTING TITLE TO, OR ANY EVICTION
FROM, THE PREMISES, (D) ANY PROCEEDING RELATING TO LANDLORD, OR ACTION TAKEN
WITH RESPECT TO THIS LEASE BY ANY TRUSTEE OR RECEIVER OF LANDLORD OR BY ANY
COURT IN ANY PROCEEDINGS, (E) ANY FAILURE BY LANDLORD TO PERFORM OR COMPLY WITH
THIS LEASE OR ANY OTHER AGREEMENT OR BUSINESS DEALINGS WITH TENANT, (F)
LANDLORD'S ACQUISITION OF OWNERSHIP OF ALL OR PART OF THE PREMISES OR OF
LANDLORD'S INTEREST THEREIN OTHER WISE THAN AS PROVIDED HEREIN, (G) ANY OTHER
OCCURRENCE WHATSOEVER, WHETHER SIMILAR OR DISSIMILAR TO THE FOREGOING, ANY
PRESENT OR FUTURE LAW TO THE CONTRARY NOTWITHSTANDING AND WHETHER OR NOT TENANT
SHALL HAVE NOTICE OR KNOWLEDGE OF ANY OF THE FOREGOING. THE OBLIGATIONS OF
TENANT HEREUNDER SHALL BE SEPARATE AND INDEPENDENT COVENANTS AND AGREEMENTS.
TENANT WILL REMAIN OBLIGATED UNDER THIS LEASE IN ACCORDANCE WITH ITS TERMS, AND
TENANT WAIVES ALL RIGHTS NOW OR HEREAFTER CONFERRED BY STATUTE OR OTHERWISE TO
MODIFY OR AVOID STRICT COMPLIANCE WITH THIS LEASE.
14.3 CANCELLATION RIGHTS. NO RIGHT OF LANDLORD OR TENANT TO CANCEL OR
TERMINATE THIS LEASE FOR ANY REASON PRIOR TO THE EXPIRATION OF THE TERM MAY BE
EXERCISED WITHOUT THE PRIOR WRITTEN CONSENT OF ANY HOLDER AND, WITHOUT SUCH
CONSENT, ANY PURPORTED CANCELLATION OR TERMINATION SHALL BE NULL AND VOID AND OF
NO FURTHER FORCE OR EFFECT.
SECTION 15. INSURANCE.
15.1 Types. Tenant, at Tenant's sole cost and expense, shall maintain
and keep in effect throughout the Term:
(i) insurance against loss or damage to the Building and all
other improvements now or hereafter located on the Premises by fire and all
other casualties as may be included in forms of all risk insurance from time to
time commonly available in the state where the Premises are located, in an
amount equal to the full insurable replacement value (without depreciation) of
such Building and improvements, such replacement value to be determined from
time to time, at Tenant's expense, whenever requested by Landlord, but not more
frequently than every three years, by an appraiser selected by Tenant and
approved by Landlord;
(ii) insurance on an occurrence basis against claims for
personal injury (including death) and property damage arising from occurrences
on, in or about the Premises, with broad form commercial liability, coverage,
under a policy or policies of
11
comprehensive general liability insurance or commercial general liability
insurance, with such limits as may be reasonably requested by Landlord from time
to time, but not less than $5,000,000 per occurrence and $5,000,000 annual
aggregate for the Premises and, without limitations of the foregoing, within 30
days after Landlord's request, Tenant shall have such annual aggregate increased
(by the same or different policies) to such amount as Landlord may reasonably
request by reason of occurrences during any policy year and, in respect of such
increase shall make the deliveries specified in Section 15.3 below;
(iii) boiler insurance, plate glass insurance, war risk
insurance (when available), rent insurance and such other forms of insurance and
endorsements as may be specified from time to time by Landlord; all such
insurance shall be in such reasonable amounts as may be specified from time to
time by Landlord; and
(iv) any other insurance that is set forth in the Mortgage.
15.2 Insured Parties. The policies of insurance described in
subsections 15.1(i), 15,1(iii) and 15.1(iv) above shall name Landlord (and such
other parties as Landlord may from time to time specify) as the sole insured(s),
and in addition shall contain a standard mortgagee endorsement in favor of the
Holders of any Mortgages which may at any time be a lien upon the Premises or
any part thereof. The policies of the insurance described in subsection 15.1(ii)
above shall name Tenant and Landlord (and such other parties as Landlord may
from time to time specify) as the insured parties, shall contain a severability
of interests endorsement, and shall state that they are primary over any
insurance carried by Landlord or such other parties, however, in lieu of
including Landlord and other parties specified by Landlord as named insureds in
Tenant's liability insurance policy. Tenant may include them in such policy as
additional insureds if Tenant also provides Landlord and any other parties
specified by Landlord with a separate policy of insurance having the limits
specified in subsection 15.1(ii) and in which they are the only named insureds,
in which case Tenant's policy and such separate policy shall each state that
they are primary over any insurance carried by Landlord or such other parties.
15.3 Insurers; Replacement. Each policy shall provide that it shall
not be cancelable without at least thirty (30) days' prior written notice to
Landlord and each policy shall be issued by an insurer of recognized
responsibility, licensed to do business in the state where the Premises are
located and satisfactory to Landlord. Forthwith upon the execution of this
Lease, each policy (or a duplicate original hereof) shall be delivered by Tenant
to Landlord unless Landlord requests that it be delivered to the Holder of any
Mortgage, in which case Tenant shall deliver the policy to such Holder and shall
deliver to Landlord a certificate (in the cast of the insurance required under
subsection 15.1(ii)) or the document known in the insurance business as an
"evidence of property insurance" (in the case of the insurance required under
subsections 15.1(i), 15.1(iii) and 15.1(iv)), from the insurance carrier in form
satisfactory to Landlord and certifying or evidencing that the policy so
delivered has been issued and is in effect and the duration thereof. At least
thirty days before any policy, Tenant shall deliver to Landlord a replacement
policy and certificate or evidence of Property insurance meeting the foregoing
requirements, and
12
at least ten days prior to the date that the premium on any policy shall become
due and payable, Tenant shall cause Landlord to be finished with satisfactory
evidence of its payment- Each policy shall have attached thereto an endorsement
to the effect that no act or omission of Tenant shall affect the obligation of
the insurer to pay the full amount of any loss sustained. Each policy shall be
in such form as Landlord may from time to time reasonably require.
15.4 Evidence of Payment. If Tenant shall fail, refuse or neglect to
obtain such insurance or maintain it, or to furnish Landlord with satisfactory
evidence that it has done so and satisfactory evidence of payment of the premium
of any policy, within the time required as set forth above, Landlord shall have
the right, at Landlord's option and without regard to any opportunity to cure
provided for elsewhere in this Lease, to purchase such insurance and to pay the
premiums thereon or to pay the premiums on insurance which Tenant should have
paid for. All such payments made by Landlord shall be recoverable by landlord
from Tenant on demand as Additional Rent hereunder.
15.5 Uninsured Loss. If Tenant fails to provide and keep in. force
insurance as aforesaid, Landlord shall not be limited in the proof of any
damages which Landlord may claim against Tenant to the amount of the insurance
premium or premiums not paid or incurred and which would have been payable upon
such insurance, but Landlord shall also be entitled to recover as damages for
such breach the uninsured amount of any loss, to the extent of any deficiency in
the insurance required by the provisions of this Lease, and damages, expenses of
suit and costs, including without limitation reasonable cancellation fees,
suffered or incurred during any period when Tenant shall have failed to provide
or keep in force insurance as aforesaid.
15.6 Other Insurance Obtained by Tenant. Tenant shall -not take out
separate insurance concurrent in form or contributing, in the event of loss,
with that required hereunder to be furnished by Tenant, or increase the amounts
of any then existing insurance by securing an additional policy or additional
policies, unless such separate insurance or additional policy(s) shall conform
to all the requirements of Section 15.2 above.
15.7 Waiver of Subrogation; Rights under Insurance Policies. Each of
the parties hereto hereby releases the other and the other's partners, agents
and employees, to the extent of each party's insurance coverage, from any and
all liability for any loss or damage which may be inflicted upon the property of
such releasing party even if -such loss or damage shall be brought about by the
fault or negligence of the other party, its partners, agents or employees;
provided, however, that this release shall be effective only with respect to
loss or damage occurring during such time as the appropriate policy of insurance
shall contain a clause to the effect that this release shall not affect said
policy or the right of the insured to recover thereunder. If any policy does not
permit such a waiver, and if the party to benefit therefrom requests that such a
waiver be obtained, the other party agrees to obtain an endorsement to its
insurance policies permitting such waiver of subrogation if it is available. If
an additional premium is charged for such
13
waiver, the party benefiting therefrom, if it desires to have the waiver, agrees
to pay to the other the amount of such additional premium promptly upon being
billed therefor.
SECTION 16. INDEMNIFICATION.
16.1 Indemnification. Tenant agrees to indemnify and save harmless
Landlord and Landlord's partners and members and its and their officers,
directors, managers and employees, from and against any and all claims by or on
behalf of any person, arising from the occupancy, conduct, operation or of the
Premises or from any work or thing whatsoever done or not done in, on or about
the Premises, or arising from any breach or default on the part of Tenant in the
performance of any Covenant or agreement on the part of Tenant to be performed
pursuant to the Terms of this Lease, or under the law, or arising from any act,
neglect or negligence of Tenant, or any of its agents, contractors, servants,
employees, invitees or licensees, causing injury, death or damage to any person
(including, without limitation, any employee of Tenant) or property, or arising
from any injury, death or damage whatsoever caused to any person (including.
without limitation any employee of Tenant) or property in or about the Premises,
or arising from any other event whatsoever, including any negligence of Landlord
or any of its partners, officers, directors, agents, employees, servants and
contractors, whether such negligence occurred or occurs before or after the
execution of this Lease, and from and against all costs, expenses, penalties,
fines and liabilities incurred in connection with any such claim or action or
proceeding brought thereon (including, without rotation the fees of attorneys,
investigators and experts) and Tenant covenants that in case any action or
proceeding be brought against Landlord or any other party to be indemnified
hereunder by reason of any such claim, Tenant upon notice from Landlord or any
other party to be indemnified hereunder, at Tenant's cost and expense, shall
defend the requesting Landlord or other party in such action or proceeding or
cause it to be resisted or defended by an insurer.
16.2 Release. Landlord, its partners, members, officers, directors,
managers, agents, employees and contractors, shall not be liable for, and Tenant
hereby releases Landlord and each of them from, all claims for loss of life,
personal injury or damage to property or business sustained by Tenant or any
person claiming by, through or under Tenant resulting from fire, accident,
occurrence or condition in, on or about the Premises, including, but not limited
to, any such claims for loss of life, personal injury or damage resulting from
any defect, latent or otherwise in the Premises, any defect, latent or
otherwise, in, or any failure of, any equipment, machinery, utilities,
appliances or apparatus, or any falling of fixtures or other items, leakage of
water, snow or ice, broken glass, or any other event whatsoever, including any
negligence of Landlord or any of its partners, officers, directors, agents,
employees, servants and contractors, whether such negligence occurred or occurs
before or after the execution of this Lease, and any failure of Landlord to
perform any of its obligations under this Lease.
SECTION 17. MECHANICS' LIENS, ETC.
17.1 No Liens. Tenant will not create or suffer or permit to be
created or remain, and will discharge, any lien, encumbrance or charge (levied
on account of any
14
imposition or any mechanic's, laborer's or materialman's lien) which might be or
become a lien, encumbrance or charge upon the Premises or any part thereof or
the income therefrom, having any priority or preference over or ranking on a
parity with the estate, rights and interest of Landlord in the Premises or any
part thereof or the income therefrom, and Tenant will not suffer any other
matter or thing whereby the estate, rights and interest of Landlord in the
Premises or any part thereof might be impaired provided that any mechanic's,
laborer's or materialman's lien may be discharged in accordance with Section
17.2 of this Section.
17.2 Discharge of Liens. If any mechanics, laborer's or materialman's
lien shall at any time be filed against the Premises or any part thereof,
Tenant, within fifteen days after notice of the filing thereof, will cause it to
be discharged of record by payment, deposit, bond, order of a court of competent
jurisdiction or otherwise. If Tenant shall fail to cause such lien to be
discharged within the period aforesaid, then in addition to any other right or
remedy, Landlord may, but shall not be obligated to, discharge it either by
paying the amount claimed to be due or by procuring the discharge of such lien
by deposit or by bonding proceedings, and in any such event, Landlord shall be
entitled, if Landlord so elects to compel the prosecution of any action for the
foreclosure of such lien by the lienor and to pay the amount of the judgment in
favor of the lienor with interest, costs and allowances. Any amount so paid by
Landlord and all costs and expenses incurred by Landlord in connection
therewith, together with interest thereon at the Default Rate from the
respective dates of Landlord's making of the payments and incurring of the costs
and expense, shall constitute additional rent payable by Tenant under this Lease
and shall be paid by Tenant to Landlord on demand.
SECTION 18. INTENTIONALLY OMITTED.
SECTION 19. TENANT'S COVENANTS. Tenant represents, warrants, and
covenants to Landlord as follows:
(a) to pay all sums due as rent and Additional Rent herein
when and as the same shall become due and payable in accordance with the terms
of this Lease;
(b) to perform and/or observe all of the terms, provisions and
conditions required to be performed and/or observed by Tenant under this Lease;
(c) not to injure, overload, deface, or otherwise harm the
building or any part thereof or any equipment or installation therein, nor
commit any nuisance; nor burn any trash on the Premises; nor make any use of the
Premises or of any part thereof or equipment therein which is improper,
offensive or contrary to applicable laws, rules and regulations;
(d) if any of Tenant's lenders forecloses on any property of
Tenant located at the Premises, Tenant shall promptly replace such property with
new property satisfactory to Lender at Tenant's sole cost and expense.
15
SECTION 20. FIRE OR OTHER CASUALTY.
20.1 Damage to Premises. (a) If the Building or other improvements on
the Premises shall be damaged or destroyed by fire or other casualty, Tenant, at
Tenant's sole cost and expense, shall promptly and diligently repair, rebuild or
replace such Building and other improvements, so as to restore the Premises to
the condition in which they were immediately prior to such damage or
destruction. The net proceeds of any insurance (other than rent insurance)
recovered by reason of such damage or destruction in excess of the cost of
adjusting the insurance claim and collecting the insurance proceeds (such excess
being hereinafter called the "net insurance proceeds") shall be held in trust by
Landlord or held by any Holder and released for the purposes of paying the fair
and reasonable cost of restoring such Building and other improvements. Such net
insurance proceeds shall be released from time to time as the work progresses to
Tenant or to Tenant's contractors. Prior to the commencement of the work, Tenant
shall deliver to Landlord reasonable proof at such net insurance proceeds are
adequate to pay the cost of such restoration. If such net insurance proceeds are
not adequate, Tenant shall pay, out of funds other than such net insurance
proceeds, the amount by which such cost will exceed such net insurance proceeds,
and shall furnish proof to Landlord of the payment of such excess for work
performed, before Landlord or any such Holder shall release any part of such net
insurance proceeds. If such net insurance proceeds are more than adequate, the
amount by which such not insurance proceeds exceed the cost of restoration will
be retained by Landlord or applied to repayment of any Mortgage Loan. If a
Holder shall decline to make the net insurance proceeds available for the
restoration provided herein and Landlord does not elect to substitute other
funds for such insurance proceeds, Landlord shall have the right to terminate
this Lease.
(b) Notwithstanding anything in this Lease Agreement to the Contrary
for any time period during which the Mortgage is outstanding, the net proceeds
of any insurance that is recovered shall be applied in the manner set forth in
the mortgage.
SECTION 21. EMINENT DOMAIN.
21.1 Condemnation of Entire Premises. If all of the Premises is taken
or condemned for a public or quasi-public use, this Lease shall terminate as of
the date title to the condemned real estate vests in the condemnor and the rent
herein reserved shall be apportioned and paid in full by Tenant to Landlord to
that date and all rent prepaid for periods beyond that date shall forthwith be
repaid by Landlord to Tenant and neither party shall thereafter have any
liability hereunder.
21.2 Partial Condemnation. If only part of the Premises is taken or
condemned for a public or quasi-public use, Tenant shall restore the building
and other improvements upon the Premises to a condition and size as nearly
comparable as reasonably possible to the condition and size thereof immediately
prior to the taking, and there shall be an equitable abatement of the minimum
rent according to the value of the Premises before and after the taking. In the
event that the parties are unable to agree upon the amount of such abatement,
either party may submit the issue for arbitration pursuant to the rules
16
then obtaining of the American Arbitration Association and the determination or
award rendered by the arbitrator shall be final, conclusive and binding upon the
parties and not subject to appeal, and judgment thereon may be entered in any
court of competent jurisdiction.
21.3 Award. Tenant shall have the right to make a claim against the
condemnor for moving and related expenses which are payable to tenants under
applicable law without reducing the awards otherwise payable to Landlord and the
Holders. Except as aforesaid, Tenant hereby all claims against Landlord and all
claims against the condemnor, and Tenant hereby assigns to Landlord all claims
against the condemnor including, without rotation, all claims for leasehold
damages and diminution in the value of Tenant's leasehold, interest. If only
part of the Premises is taken or condemned for a public or quasi-public use, the
nor proceeds of any condemnation award recovered by reason of any taking or
condemnation of the Premises in excess of the cost of collecting the award and
in excess of any portion thereof attributable to the then current market value
of the land taken or condemned (such excess being hereinafter called the "net
condemnation proceeds") shall be held in trust by Landlord of any Holder and
released for the purpose of paying the fair and reasonable cost of restoring the
Building and Other improvements damaged by reason of the taking or condemnation.
Such net condemnation proceeds shall be released from time to time as the work,
progresses to Tenant or to Tenant's contractors. Prior to the condemnation of
the work, Tenant shall deliver to Landlord reasonable proof that such net
condemnation proceeds are adequate to pay the cost of such restoration. If such
net condemnation proceeds are not adequate, Tenant shall pay, out of funds other
than such net condemnation proceeds, the amount by which such cost will exceed
such net condemnation proceeds and shall furnish proof to Landlord of the
payment of such excess for work performed before Landlord or any such Holder
shall release any part of such net condemnation proceeds. If such net
condemnation proceeds are more than adequate, the amount by which such net
condemnation proceeds exceed the cost of restoration shall be retained by
Landlord or applied to repayment of any Mortgage Loan secured by the Premises.
In the event that the parties are unable to agree upon the Portion of the award
attributable to the then current market value of the land taken or condemned,
either party may submit the issue for arbitration pursuant to the rules then
obtaining of the American Arbitration Association and the determination or award
rendered by the arbitrator shall be final, conclusive and binding upon the
parties and not subject to appealed and judgment thereon may be entered in any
court of competent jurisdiction.
21.4 Temporary Taking. If the condemnation should take only the right
to possession for a fixed period of time or for the duration of an emergency or
other temporary condition, then, notwithstanding anything hereinabove provided,
this Lease shall continue in full force and effect without any abatement of
rent, but the amounts payable by the condemnor with respect to any period of
time prior to the expiration or sooner termination of this Lease, shall be paid
by the condemnor to Landlord and the condemnor shall be considered a Subtenant
of Tenant. If the amount payable hereunder by the condemnor are paid in monthly
installments, Landlord shall apply the amount of such installments, or as much
thereof as may be necessary for the purpose, toward the
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amount of rent due from Tenant as rent for that period, and Tenant shall pay to
Landlord any deficiency between the monthly amount thus paid by the condemnor
and the amount of the rent, while Landlord shall pay over to Tenant any excess
of the amount of the award or the amount of the rent.
21.5 Outstanding Mortgage. Notwithstanding anything in this Lease
Agreement to the contrary, for any time period during which the Mortgage is
outstanding, any condemnation proceeds awarded in accordance with Sections 21.1.
21.2, 21.3 or 21.4 herein shall be applied in the manner set forth in the
Mortgage.
SECTION 22. LANDLORD'S RIGHT OF ENTRY. Tenant agrees to permit Landlord
and the authorized representatives of Landlord and of the Holder of any Mortgage
or any prospective Holder to enter the Premises at all reasonable times for the
purpose of inspecting them, including the performance of reasonable rents,
samplings, or other investigations to satisfy itself that Tenant has complied
with the provisions of this Lease, and making any necessary repairs thereto and
performing any work therein that may be necessary by reason of Tenant's failure
to make such repairs or perform any such work required of Tenant under this
Lease. Nothing herein shall imply any duty upon the part of Landlord to make any
such inspection, test, sampling or other investigations and nothing herein shall
imply any duty on the part of Landlord co do any other work which under any
provision of this Lease Tenant may be required to perform, and the performance
thereof by Landlord shall not constitute a waiver of Tenant's default in failing
to perform it. During the progress of any work, inspection, testing, sampling or
investigation, Landlord may keep and store in the Premises all necessary
materials, tools and equipment. Landlord shall not in any event be liable for
inconvenience, annoyance, disturbance, or other damage to Tenant by reason of
making such repairs or the performance of such work in the Premises or on
account of bringing materials, supplies and equipment into or through the
Premises during the course thereof and the obligations of Tenant under this
Lease shall not thereby be affected in any manner whatsoever, and the cost of
each of such repairs or the performance of such work shall be payable by Tenant
to Landlord on demand as Additional Rent. Landlord also shall have the right to
enter the Premises at all reasonable times to exhibit the premises to any
prospective purchaser, tenant and/or mortgagee thereof.
SECTION 23. SURRENDER. Upon expiration or termination of this Lease, or,
any extension thereof, Tenant will quit and surrender the Premises, broom clean,
in good order and condition, ordinary wear and tear excepted, without the
necessity of any notice from either Landlord or Tenant to terminate the same,
and Tenant hereby waives notice to vacate said Premises and agrees that Landlord
shall be entitled to the benefit of all provisions of law respecting the summary
recovery of possession of said Premises from a tenant holding over to the same
extent as if statutory notice had been given Tenant shall remove its trade
fixtures, stock, and other personal property at the expiration or sooner
termination of the Term.
SECTION 24. HOLDING. In the event that Tenant remains in possession of
the Premises after the expiration of this Lease, it shall be deemed to be
occupying the
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Premises as a holdover tenant, subject to all the conditions, provisions, and
obligations of this Lease insofar as the same are applicable to a holdover
tenancy, provided, however, chat the minimum rental payment shall be increased
by fifty percent (50%).
SECTION 25. DEFAULTS AND REMEDIES.
25.1 If Tenant defaults in the performance of any of its obligations
under this Lease, including, without limiting the generality of the foregoing,
its obligation to pay rent or Additional Rent or any part thereof when due, or
to make any other payment herein provided, or to perform any other covenant,
obligation, agreement. or duty on Tenant's part to be performed hereunder, and
if such default shall continue as to as to nonmonetary defaults only for a
period of thirty (30) days after notice thereof to Tenant and. if such default
or omission so specified is other than a monetary default, if Tenant has not in
good faith commenced curing or remedying such default within such thirty (30)
day period and does not thereafter diligently proceed therewith to completion,
then and in any such event either Landlord may cancel this Lease by notice to
Tenant (if the Term has not commenced) or Landlord may serve upon Tenant a
notice that this Lease and the Term will terminate (if the Term has commenced)
on a date specified therein, which shall be not less than thirty (30) days after
the giving of such notice. Upon the date so specified, this Lease and the Term,
if any, shall terminate as fully and completely as if such date were the date
herein definitely fixed for the end and expiration of this Lease and Tenant
shall then quit and surrender the Premises to Landlord; provided, however, that
Tenant shall remain liable as hereinafter set forth. In the event that Tenant
breaches or threatens to breach or anticipatorily repudiates this Lease before
taking possession of the Premises, then in addition to, and not in limitation
of, any other rights or remedies accruing to Landlord by operation of law and/or
equity, by or under any legal proceedings or by the provisions of this Lease,
Landlord may, after thirty (30) days notice to Tenant and opportunity to cure or
retract such anticipatory repudiation, in its sole discretion, terminate this
Lease by giving Tenant notice of its intent to do so, and Landlord, at its sole
option, may proceed to relet the Premises with no liability or obligation to
Tenant whatsoever. This shall be self-operative, and no further instrument of
cancellation shall be required of Tenant and Landlord.
25.2 The occurrences of any one or more of the following shall
constitute an "EVENT OF DEFAULT":
(a) The occurrence of any of the events described in Section
25.1 gives rise to Landlord's right to terminate this Lease or to give notice of
termination of this Lease;
(b) The occurrence of any of the following:
(i) the making by Tenant of any general assignment for
the benefit of creditors;
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(ii) the filing by or against Tenant of a petition under
the Bankruptcy Code, including a petition for reorganization or arrangement
(unless. in the case of a petition filed against Tenant, the same is dismissed
within ninety (90) days);
(iii) the appointment of a trustee or receiver to take
possession of substantially all of Tenant's assets located at the Premises or of
Tenant's interest in this Lease, where possession is not restored to Tenant
within sixty (60) days; or
(iv) the attachment, execution, or other judicial
seizure of substantially all of Tenant's assets located at the Premises or of
Tenant's interest in this Lease, where such seizure is not discharged within
thirty (30) days.
25.3 If, during the Term, any one or more of the acts or occurrences
Section 25.2 shall happen, then, and in any such Event of Default shall continue
and notwithstanding the fact that the Landlord may have any other remedy
hereunder or at law or in equity, by notice to Tenant, designate a date, not
less than thirty (30) days after the giving of such notice, on which this Lease
shall terminate; and thereupon, on such date, the Term of this Lease and the
estate hereby granted shall expire and terminate upon the date specified in such
notice with the same force and effect as if the date specified in such notice as
the date hereinbefore fixed for the expiration of the Term of this Lease, and
all rights of Tenant hereunder shall expire and terminate, but Tenant shall
remain liable as hereinafter provided. Additionally, Tenant agrees to pay, as
Additional Rent, all reasonable attorneys' fees and other expenses incurred by
Landlord in enforcing any of the obligations under this Lease, this covenant to
survive the expiration or sooner termination of this Lease.
25.4 If this Lease is terminated as provided in Section 25.1 or 25.3
above, or as permitted by law, Tenant shall peaceably quit and surrender the
Premises to Landlord, and Landlord may, without further notice, enter upon,
reenters possess, and repossess the same by summary proceedings, ejectment, or
other legal proceedings, and again have, repossess, and enjoy the same as if
this Lease had not been made, and in any such event neither Tenant nor any
person claiming through or under Tenant by virtue of any law or an order of any
court shall be entitled to possession or to remain in possession of the
Premises, and Landlord, at its option, shall forthwith, notwithstanding any
other provision of this Lease, be entitled to recover from Tenant (in lieu of
all other claims for damages on account of such terminations as and for
liquidated damages an amount equal to the excess of all rents reserved hereunder
for the unexpired portion of the Term of this Lease discounted at the rate of
.1% per annum to the then present worth, over the fair rental value of the
Premises as determined by Landlord at the time of termination for such unexpired
portion of the Term and similarly discounted. Nothing herein contained shall
limit or prejudice the right of Landlord, in any bankruptcy or reorganization or
insolvency proceeding, to prove for and obtain as liquidated damages by reason
of such termination an amount equal to the maximum allowed by any bankruptcy or
reorganization or insolvency proceedings, or to prove for and obtain as
liquidated damages by reason of such termination an amount equal to the maximum
allowed by any statute or rule of law, whether such amount shall be greater or
less than the excess referred to above.
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25.5 If Landlord reenters and obtains possession of the Premises
following an Event of Default, Landlord shall have the right, without notice, to
repair or alter the Premises in such a manner as Landlord may deem necessary or
advisable so as to put the Premises in good order and to make the same rentable,
and shall have the right at Landlord's option, to relet the Premises or a part
thereof, and Tenant shall pay to Landlord on demand all reasonable expenses,
incurred by Landlord in obtaining possession, and in altering, repairing and
putting the Premises in good order and condition and in reletting the same,
including reasonable fees of attorneys and architects, and all other reasonable
expenses of commissions, and Tenant shall pay to Landlord upon the rent payment
dates following the date of such reentry to and including the date for the
expiration of the Tern of this Lease in effect immediately before such reentry
the sums of money which would have been payable by Tenant as rent hereunder on
such rent payment dates if Landlord had not reentered and resumed possession of
the Premises, deducting only the net amount of rent, if any, which Landlord
shall actually receive (after deducting from the gross receipts the expenses,
costs, and payments of Landlord which in accordance: with the terms of this
Lease would have been borne by Tenant) in the meantime from and by any reletting
of the Premises, and Tenant shall remain liable for all sums otherwise payable
by Tenant under this Lease, including but not limited to the expenses of
Landlord aforesaid, as well as for any deficiency aforesaid, and Landlord shall
have the right from time to time to begin and maintain successive actions or
other legal proceedings against Tenant for the recovery of such deficiency,
expenses, or damages or for a sum equal to any Minimum Rent payment and
Additional Rent. The obligation and liability of Tenant to pay the Minimum Rent
and Additional Rent shall survive the commencement, prosecution, and termination
of any action to secure possession of the building. Nothing herein contained
shall be deemed to require Landlord to wait to begin such action or other legal
proceedings until the date this Lease would have expired had there not been an
Event of Default.
25.6 Tenant hereby waives all right of redemption to which Tenant or
any person under it may be entitled by any law now or hereafter in force.
Landlord's remedies hereunder are in addition to any remedy allowed by law. In
addition, in the event of an Event of Default which results in Landlord's
recovering possession of the Premises, Landlord's duty to mitigate Tenant's
damages shall be limited to its use of reasonable efforts to relet the Premises.
25.7 In the event of any breach or threatened breach by Tenant of any
of the agreements, terms, covenants, or conditions contained in this Lease,
Landlord shall be entitled to enjoin such breach or threatened breach and shall
have the right to invoke any right or remedy allowed by law, or in equity or by
statute or otherwise as though reentry, summary dispossess proceedings, and
other remedies were not provided for in this Lease. During the pendency of any
proceedings brought by Landlord to recover possession by reason of default,
Tenant shall continue all money payments required to be made to Landlord, and
Landlord may accept such payments for use and occupancy of the Premises. In such
event Tenant waives its right in such proceedings to claim as a defense that the
receipt of such money payments by Landlord constitutes a waiver by Landlord of
such default.
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25.8 Landlord 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 sixty (60) days after written
notice by Tenant to Landlord and any Holder (the name and address of which has
been supplied to Tenant) specifying wherein Landlord has failed to perform such
obligation; provided, however, that if the nature of Landlord's obligation is
such that more than sixty (60) days are required for its performance, then
Landlord shall not be deemed to be in default if it shall commence such
performance within such sixty (60) day period and thereafter diligently
prosecute the same to completion. Holder may perform on behalf of Landlord.
Under no circumstances may Tenant terminate this Lease by reason of any one or
more defaults by Landlord hereunder.
SECTION 26. ADA REQUIREMENTS. Tenant, at its sole expense, shall comply
with all requirements of the Americans with Disabilities Act of 1990, as amended
default from time to time, and with all rules, regulations, and guidelines
thereunder, in connection with the Premises.
SECTION 27. ADDITIONAL RENT. Whenever under the terms of this Lease any
sum of money is required to be paid by Tenant in addition to the Minimum Rent
herein reserved, whether or not such sum is herein designated as Additional Rent
or provision is made for the collection of said sum as additional rent, said sum
shall nevertheless be deemed Additional Rent and shall be collectible as such
with the first installment of rent thereafter failing due hereunder.
SECTION 28. NOTICES. All notices, demands, requests, approvals, and
consents required or permitted under this Lease ("Notices") shall be in writing
and shall be (i) personally delivered against receipt, or (ii) sent by first
class certified or registered mail, return receipt requested, postage prepaid,
or (iii) sent by a nationally-recognized overnight courier the provides a signed
delivery receipt, addressed as follows:
If to Landlord: FORTUNEFIRST LLC
0000 X. Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
With a copy to: any Holder the name and address of which has been
supplied to Tenant
If to Tenant: HYUNDAI ELECTRONICS AMERICA
0000 X. Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
All notices personally delivered shall conclusively be deemed delivered
at the time of such delivery. All notices sent by certified mail shall
conclusively be deemed delivered three (3) business days after the deposit
thereof in the United States mails.
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All notices delivered by overnight courier shall conclusively be deemed
delivered on the date of such receipted delivery. Any party may designate a
change of address by notice to the other party given at least ten (10) days
before such change of address is to become effective.
SECTION 29. BROKERAGE COMMISSION. Tenant shall defend, indemnify and
save harmless Landlord from any claim for commissions or brokerage fees made by
any real estate firm, agent, salesman or broker asserting that it is entitled to
a fee or commission regarding this Lease.
SECTION 30. RECORDATION. The parties agree co execute a memorandum or
other short form of this Lease in a form reasonable, acceptable to Landlord and
Tenant, which may, at the desire of either party, be recorded among the land
records of the jurisdiction where the Premises are located, the expense thereof
to be borne by the recording party. This Lease shall not be recorded by either
party.
SECTION 31. PARTIAL INVALIDITY. If any term, covenant, condition, or
provision of this Lease or the application thereof to any person or circumstance
shall, at any time; or to any extent, be invalid or unenforceable, the remainder
of this Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term, covenant, condition, and provision
of this Lease shall be valid and be enforced to the fullest extent permitted by
law.
SECTION 32. ENTIRE AGREEMENT. This Lease contains the entire agreement
between the parties hereto and supersedes in their entirety any and all prior
discussions, understandings, or agreements. No agreement hereafter made shall
operate to change, modify, terminate, or discharge this Lease in whole or in
part unless such agreement is in writing and signed by each of the parties
hereto. Landlord has made no representations or promises with respect to the
Premises except as are herein expressly set forth.
SECTION 33. HEADINGS AND CAPTIONS. The headings and captions of this
Lease are for convenience of reference only and are not a part of this Lease.
SECTION 34. SUCCESSORS AND ASSIGNS. This Lease shall be binding upon and
inure to the benefit of the parties and their respective successor and assigns.
SECTION 35. ESTOPPEL CERTIFICATES.
35.1 Upon request by Landlord and within ten (10) days after the date
thereof, Tenant shall deliver to Landlord and to such mortgagee or other party
as may be designated by Landlord a signed and acknowledged statement setting
forth the following. (i) this Lease is unmodified, in full force and effect,
free of existing defaults of Landlord and free of defenses against
enforceability (or if there have been modifications or defaults, or if Tenant
claims defenses against the enforceability hereof, then stating the
23
modifications, defaults. and/or defenses), (ii) the dates to which Minimum Rent
and Additional Rent have been paid, (iii) the commencement and expiration dates
of the Term, (iv) that Tenant has no outstanding claims against Landlord (or if
there are any claims, then stating the nature and amount of such claims); (v)
the status of any other obligation of either party under or with respect to this
Lease; and (vi) any other matters relating to this Lease or the status of
performance of obligations of the parties hereunder as may be reasonably
requested by Landlord. In the event that Tenant fails to provide such
certificate within ten (10) days after request by Landlord therefor, Tenant
shall be deemed to have approved the contents of any such certificate submitted
to Tenant by Landlord and Landlord is hereby authorized to so certify. In
addition, such failure shall be an Event of Default not subject to any
opportunity to cure.
35.2 Within ten (10) days after written request of Tenant, Landlord
shall deliver to Tenant and to such other party as may be designated by Tenant,
a signed and acknowledged statement setting forth the following: (i) this Lease
is unmodified, in full force and effect, free of existing defaults of Tenant,
and free of defenses against enforceability (or if there have been modifications
or defaults, or if Landlord claims defenses against the enforceability hereof,
then stating the modifications, defaults. and/or defenses), (ii) the dates to
which Minimum Rent and Additional Rent have been paid; (iii) the commencement
and expiration dates of the Term; (iv) that Landlord has no outstanding claims
against Tenant (or if there are any claims, then stating the nature and amount
of such claims); (v) the status of any other obligation of either party under or
with respect to this lease; and (vi) any other matters relating to this Lease or
the status of performance of obligations of the parties hereunder as may be
reasonably requested by Tenant in the event that Landlord fails to provide such
certificate within ten (10) days after request by Tenant therefor, Landlord
shall be deemed to have approved the contents of any such certificate submitted
to Landlord by Tenant and Tenant is hereby authorized to so certify.
SECTION 36. DEFINITION OF LANDLORD. The term "Landlord" as used herein
means the Landlord named herein and any subsequent owner of Landlord's estate
hereunder for the period of such ownership, but any owner of Landlord's estate
hereunder shall be :-relieved of all liability under this Lease after the date
that it ceases to be the owner of Landlord's estate (except for any liability
arising before such date) provided that the party succeeding to Landlord's
estate shall have executed an agreement wherein it assumes and agrees to perform
all of Landlord's obligations under this Lease from and after the date it
acquire Landlord's estate. Landlord's liability hereunder shall be limited
solely to Landlord's interest in the Premises.
SECTION 37. WAIVERS. No waiver by Landlord of any provision of this
Lease shall be deemed to be a waiver of any other provision hereof or of any
subsequent breach by Tenant of the same or any other provision. Landlord's
consent to or approval of any act by Tenant requiring Landlord's consent or
approval shall not be deemed to render unnecessary the obtaining of Landlord's
consent to or approval of any subsequent act by Tenant, whether or not similar
to the act so consented to or approved.
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SECTION 38. PAYMENTS. No payment by Tenant or receipt by Landlord of a
lesser amount than the Minimum Rent and Additional Rent herein stipulated shall
be deemed to be other than on account of the earliest stipulated Minimum Rent
and Additional Rent, nor shall any endorsement or statement on any check, or in
any letter accompanying any check, in payment of Minimum Rent and Additional
Rent be deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
Minimum Rent and Additional Rent or pursue any other remedy in this Lease
provided.
SECTION 39. NO PARTNERSHIP. It is agreed that nothing contained in this
Lease shall be deemed or construed as creating a partnership, joint venture, or
any other association between Landlord and Tenant, or cause Landlord to be
responsible in any way for the debts or obligations of Tenant, and neither the
method of computing Minimum Rent and Additional Rent nor any other provision
contained in this Lease nor any acts of the parties hereto shall be deemed to
create any relationship between Landlord and Tenant other than the relationship
of landlord and tenant.
SECTION 40. NO OPTION. The submission of this Lease Agreement for
examination does not constitute a reservation of, or option for, the Premises,
and this Lease Agreement becomes effective as a Lease Agreement only upon
execution and delivery thereof by Landlord and Tenant.
SECTION 41. PERSONAL LIABILITY. Notwithstanding anything to the contrary
provided in this Lease, it is specifically understood and agreed, such agreement
being a primary consideration for the execution of this Lease by Landlord. that
there shall be absolutely no personal liability on the part of Landlord, its
successors, assigns or any mortgagee in possession (for the purposes of this
section, collectively referred to as "Landlord"), with respect to any of the
terms, covenants, and conditions of this Lease and that Tenant shall look solely
to the equity of Landlord in the Premises for the satisfaction of each and every
remedy of Tenant in the event of any breach by Landlord of any of the terms,
covenants, and conditions of this Lease to be performed by Landlord, such
exculpation of liability to be absolute and without any exceptions whatsoever.
The foregoing limitation of liability shall be noted in any judgment secured
against Landlord and in the judgment index.
SECTION 42. MORTGAGEE MODIFICATION. Tenant hereby agrees that it will
execute any and all modifications of this Lease requested by Landlord in
connection with the financing of the Premises. as long as same do not increase
Tenant's obligations hereunder or reduce any rights granted Tenant hereunder.
Any provisions granting a mortgagee an opportunity to cure the defaults of
Landlord or any provisions extending cure periods or notice periods shall be
permitted pursuant to the preceding sentence.
SECTION 43. CORPORATE AUTHORITY. If Tenant is a corporation, the persons
executing this Lease on behalf of Tenant hereby covenant and warrant that (a)
they are duly authorized by appropriate resolution and/or the articles- and
bylaws of
25
the corporation to execute this Lease and thereby bind Tenant to all the terms
and conditions thereof, (b) Tenant is a duly qualified corporation and all steps
have been taken before the execution of this Lease to qualify Tenant to do
business in the state where the Premises is situated, (c) all franchise and
corporate taxes have been paid as of the date of execution, and (d) all future
forms, reports, fees, and other documents necessary to comply with applicable
laws will be filed when due.
SECTION 44. ENVIRONMENTAL COVENANTS.
44.1 Compliance With Law. Tenant shall conduct, and cause to be
conducted, all operations and activity at the Premises in compliance with, and
shall in all other respects applicable to the Premises comply with, all
applicable present and future federal, state, municipal and other governmental
statutes, ordinances, regulations, orders, directives, guidelines and other
requirements, and all present and future requirements of common law, concerning
the environment (hereinafter called "Environmental Statutes") including, without
limitation, the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. Sections 9601 et seq., the Resource Conservation and Recovery
Act, 42 U.S.C. Sections 9601 et seq., the Clean Air Act, 42 U.S.C. Sections 7401
et seq., and the Toxic Substances Control Act, 15 U.S.C. Sections 2601 et seq.,
and (i) those relating to the generation, use, handling, treatment, storage,
transportation, release, emission, disposal, remediation or presence of any
material, substance, liquid, effluent or product, including, without limitation,
hazardous substances, hazardous waste or hazardous materials, (ii) those
concerning conditions at, above or below the surface of the ground and (iii)
those concerning conditions in, at or outside of buildings.
44.2 Permits. Tenant, in a timely manner, shall obtain and maintain in
full force and effect all permits, licenses and approvals, and shall make and
file all notifications and registrations, as required by Environmental Statutes.
Tenant shall at all times comply with the terms and conditions of any such
permits, licenses, approvals, notifications and registrations.
44.3 Documents. Tenant shall provide to Landlord copies of the
following, forthwith after each shall have been submitted, prepared or received
by Tenant or any occupant of the Premises: (i) all applications and associated
materials submitted to any governmental agency relating to any Environmental
Statute; (ii) all notifications, registrations reports and other documents, and
supporting information, prepared, submitted or maintained in connection with any
Environmental Statute; (iii) all permits, licenses, approvals, and amendments or
modifications thereof, obtained under any Environmental Statute; and (iv) any
correspondence, notice of violation, summons, order, complaint, or other
document received by Tenant or any occupant of the Premises pertaining to
compliance with any Environmental Statute.
44.4 Tanks. Tenant, without the prior written consent of Landlord,
shall not install or cause, suffer or permit the installation of, any above or
underground storage tank at the Premises. If Tenant does install or cause,
suffer or permit the installation of any such tank, Tenant shall comply with all
applicable laws as to its installation,
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maintenance, operation and closure, including any requirement for the
maintenance of liability insurance with respect to risks associated with any
such tank. If such liability insurance is required to be maintained, Landlord
shall be named as an additional insured thereunder and the provisions of Section
19.3 hereof shall apply thereto. Upon termination of this Lease, Landlord shall
have the option of requiring that Tenant, at Tenant's sole cost and expense,
remove any tank installed by Tenant and any associated contaminated material and
other contamination and perform all tests required by Landlord and any required
by Environmental Statutes and any Other applicable governmental requirements and
provide Landlord and all required government agencies with the results of such
tests in such form as reasonably required by Landlord or as required by law.
44.5 Operations. Tenant shall not cause or suffer or permit to occur
at, in, on or under the Premises any generation, use, manufacturing, refining,
transportation, emission, release, treatment, storage, disposal, presence or
handling of hazardous substances, hazardous wastes or hazardous materials (as
such terms are now or hereafter defined under any Environmental Statute) (herein
called "Hazardous Substances') or any other material, substance, liquid,
effluent or product now or hereafter regulated by any Environmental Statute
(also called "Hazardous Substances'), except that construction materials (other
than asbestos or polychlorinated biphenyls), office equipment, fuel and similar
products (if contained in vehicles) and cleaning solutions, and other
maintenance materials that are or contain Hazardous Substances may be used,
generated, handled or stored on the Premises, provided such is incident to and
reasonably necessary for the operation and maintenance of the Premises as
permitted hereunder and is in compliance with all Environmental Statutes and all
other applicable governmental requirements. Should any release of any Hazardous
Substance occur at the Premises, Tenant shall immediately contain, remove and
dispose of off the Premises, such Substances, and any that was contaminated by
the release and remedy and mitigate all threats to human health or the
environment relating to such release. When conducting any such measures, Tenant
shall comply with Environmental Statutes.
44.6 Required Governmental Approval of Property Transfers. If the use
of the Premises by Tenant, of any operation or activity conducted at the
Premises during the term of this Lease, shall be such as requires, under any
present or future Environmental Statute, the obtaining of an approval (herein
called an "Environmental Approval of Transfer or Change") by any governmental
agency, or an acknowledgment by such agency that such approval is not required,
(i) in order to change or transfer ownership of the Premises or any interest in
Landlord or in any entity which directly or indirectly controls Landlord, (ii)
in order to change or Transfer Tenant's interest in this Lease or any interest
in Tenant or in any entity which directly or indirectly controls Tenant or (iii)
in connection with: (A) cessation of all or any operations or activity at the
Premises for any reason or (B) a change in or transfer of any operations or
activity at the Premises or (C) the expiration or termination of this Lease
(each of the transactions and occurrences referred to in the foregoing clauses
(i), (ii) or (iii) being hereinafter called a "Change"), Tenant, at Tenant's
sole cost and expense. shall, in compliance with all Environmental Statutes,
apply for, and prior to the Change deliver to Landlord, a copy of the required
-approval or acknowledgment and Tenant shall perform all remedial actions
required by
27
such governmental agency for the issuance of the approval, in whole or in part
by reason of Tenant's use of the Premises or operations or activities at the
Premises during the term of this Lease: provided that as to any Change which is
a change or transfer of ownership of the Premises or of an interest in Landlord
or in any entity which directly or indirectly controls Landlord. Tenant shall
instead (x) promptly comply with any request of Landlord to provide such
information, statements or affidavits as to operations and activities at the
Premises during the term of this Lease, and as to the use of the Premises by
Tenant, as may be determined by Landlord to be necessary, (y) either promptly
perform or, at the option of Landlord, reimburse Landlord within 15 days after
demand for Landlord's costs of, all remedial actions required by any
governmental agency for issuance of the Environmental Approval of Transfer or
Change and (z) pay, or reimburse Landlord for, all other costs and expenses
which are attributable to the existence of Tenant's tenancy or to Tenant's use
of the Premises or to any operation or activity at the Premises during the term
of this Lease and were incurred to obtain such required approval or
acknowledgment. Tenant covenants, represents and warrants that any application,
statement or information made or provided by or through Tenant pursuant to this
subsection shall be true and complete. If there should be an Environmental
Statute which requires an Environmental Approval of Transfer or Change, but such
requirement shall not have been made applicable by Tenant's use of the Premises
or operations or activities conducted at the Premises during the term of this
Lease, and if an official statement of such non-applicability shall be
obtainable from the applicable governmental agency, then, whether or not the
obtaining of such statement is required by law, Tenant, at Tenant's sole cost
and expense, shall obtain and deliver such statement to Landlord before the
change occurs (in the case of a change described in clause (ii) or clause (iii)
above) or promptly upon request of Landlord (in the case of a change described
in clause (i) above).
44.7 Activities of Others. Tenant agrees that any contracts or
agreements of any kind entered into or renewed by Tenant, for the occupancy of
or the performance of activities on the Premises will contain the same
limitations on the activities of the other contracting party as are placed on
Tenant by Sections 44. 1 through 44.5 above.
44.8 Inspection. Tenant agrees to permit Landlord and its authorized
representatives to enter, inspect and assess the Premises at reasonable times
for the purpose of determining Tenant's compliance with the provisions of this
Section 44. Such inspections and assessments may include obtaining samples and
performing tests of soil. surface water, groundwater or other media.
44.9 Indemnification. Tenant hereby agrees to indemnify and to hold
harmless Landlord of, from and against any and all expense, loss or liability
suffered by Landlord by reason of Tenant's breach of any of the provisions of
this Section 44, including, but not limited to, (i) any and all expenses that
Landlord may incur in complying with any Environmental Statutes, (ii) any and
all costs that Landlord may incur in studying, assessing, containing, removing,
remedying, mitigating, or otherwise responding to, the
28
release of any Hazardous Substance or waste at or from the Premises, (iii) any
and all costs for which Landlord may be liable to any governmental agency for
studying assessing, containing, removing, remedying, mitigating, or otherwise
responding to, the release of a Hazardous Substance or waste at or from the
Premises, (iv) any and all fines or penalties assessed, or threatened to be
assessed, upon Landlord by reason of a failure of Tenant to comply with any
obligations, covenants or conditions set forth in this Section 44, and (v) any
and all legal fees and costs incurred by Landlord in connection with any of the
foregoing.
44.10 Modifications. No subsequent modification or termination of this
Lease by agreement of the parties, or otherwise shall be construed to waive, or
to modify, any provisions of this Section 44, unless the termination or
modification agreement or other document so states in writing and makes specific
reference to this Section 4.4.
SECTION 45. COMPLIANCE WITH LAW. Tenant shall, throughout the term of
this Lease, at Tenant's sole cost and expense, promptly comply with all laws,
ordinances. notices, orders, rules, regulations and requirements of all federal,
state and municipal governments and appropriate departments, commissions, boards
and officers thereof, and notices, orders, rules and regulations of the National
Board of Fire Underwriters, or any other body now or hereafter constituted
exercising similar functions, foreseen or unforeseen, ordinary as well as
extraordinary and future as well as present, relating to all or any part of the
Premises. exterior as well as interior, structural as well as non-structural, or
to the use or manner of use of the Premises or to the sidewalks, parking areas,
curbs and access ways adjoining the Premises. Without limiting the generality of
the foregoing, Tenant shall keep in force at all times all licenses, consents
and permits necessary for the lawful use of the Premises for the purpose herein
provided and Tenant shall pay all personal property taxes, income taxes, license
fees. and other taxes which are or may be assessed, levied or imposed upon
Tenant in connection with Tenant's operation of its business upon the Premises,
Tenant shall likewise observe and comply with the requirements of all policies
of liability, fire and other insurance at any time in force with respect to the
Premises. Notwithstanding the foregoing, Tenant may, in good faith (and wherever
necessary, in the name of, but without expense to, Landlord, and having secured
Landlord to its reasonable satisfaction by cash, securities, or a surety company
bond against loss or damage), contest the validity or application in whole or in
part of any such legal requirements and may, pending the final determination of
such contest, postpone compliance therewith, but not so as to subject Landlord
of any superior landlord to any fine or penalty or to prosecution for a crime,
or to cause the Premises, or any part thereof, to be placed in danger of
forfeiture, sale, or condemnation.
SECTION 46. LANDLORD'S WAIVER OF LIEN. Except as may be expressly
provided herein, Landlord hereby waives any lien (other than a judgment lien) of
interest it may have in any personal property of Tenant or any subtenant,
assignee, licensee. or concessionaire of Tenant, including but not limited to
any inventory. machinery, equipment, and trade fixtures of Tenant or any
subtenant, assignee, licensee, or concessionaire of Tenant, that may from time
to time be located at or upon the Premises.
SECTION 47. RULE AGAINST PERPETUITIES. If the rule against perpetuities
would invalidate this Lease or any portion hereof or would limit the time
29
during which this entire Lease or any portion hereof shall be effective due to
the potential failure of an interest in property created herein to vest within a
particular time, then each such interest in property shall be effective only
from the date hereof until the passing of twenty-one (21) years after the death
of the last survivor of the members of the Senate or the United States of
America representing the State of Maryland who arc serving on the date hereof,
but each such interest in property shall be extinguished after such time, and
all other -interests in property created herein and all other provisions hereof
shall remain valid and effective without modification.
SECTION 48. EXHIBITS. The following exhibits are attached hereto and
form a part of this Lease-
A. Legal Description of Premises
SECTION 49. TITLE.
49.1 Adverse Possession. Tenant shall not suffer or permit the
premises or any portion thereof to be used by the public, as such, without
restriction or in such manner as might reasonably tend to impair Landlord's
title to the Premises or in such manner as reasonably make possible a claim or
claims of adverse usage or adverse possession by the public, as such, or of
implied dedication of the Premises or any portion thereof.
Condition of Title and Premises. Tenant represents that the Premises,
the title thereto, the zoning thereof, the street or streets, sidewalks. parking
areas, curbs and access ways adjoining them, any surface and subsurface
conditions thereof, and the present uses and nonuses thereof, have been examined
by Tenant, and Tenant accepts them in the condition or state in which they now
are, or any of them now is, without representation, covenant or warranty,
express or implied, in fact or in law, by Landlord and without recourse to
Landlord, as to the title thereto, encumbrances thereon, appurtenances, the
nature, condition or usability thereof or the use or uses to which the Premises
or any part thereof may be put.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seas
the day and year first written above.
LANDLORD:
FORTUNEFIRST, LLC
By: /s/ X. X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------------
Title: V.P. Finance & CFO
---------------------------------
TENANT:
30
HYUNDAI ELECTRONICS AMERICA
By: /s/ X. X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------------
Title: V.P. Finance & CFO
---------------------------------
31
EXHIBIT "A"
Real property in the City of San Xxxx, County of Santa Xxxxx, State of
California, described as:
PARCEL ONE:
Parcel 13, as shown on that certain Parcel Map filed for record in the office of
the Recorder of the County of Santa Xxxxx, State of California on January 28,
1977, in Book 388 of Maps page(s) 16 through 27.
EXCEPTING THEREFROM the underground water rights without rights of surface entry
as conveyed to San Xxxx Water Works, a California corporation, by Deed recorded
May 22, 1985, in Book J353, Page 153 of Official Records.
APN: 000-00-000
ARB: 243-19-004.01; 243-19-011.01
32
EXHIBIT "B"
"CPI Factor" means an amount expressed as a percentage equal to the sum
of (a) 100% plus (b) either (i) during the first year of the Initial Term, 0%,
or (ii) for each successive year of the Initial Term beginning with the second
year of the Initial Term, the excess, calculated as a percentage, of (A) the CPI
Index on the first day of each such successive year over (B) the CPI Index on
the date hereof; provided, however, (i) in no event shall the CPI Factor ever be
less than 100% and (ii) in the event the CPI Index does not exist on the date of
any required calculation in this definition, then Landlord shall designate a
comparable index published by the government or a recognized financial or
academic institution. For purposes hereof, "CPI Index" means The Consumer Price
Index for Urban Consumers (CPI-U), All Items, U.S. City Average (1982-1984
equals 100), published by the United States Department of Labor, Bureau of
Statistics.
33
TABLE OF CONTENTS
Page
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EXPLANATORY STATEMENT.................................................................2
SECTION 1. DEFINITION................................................................2
SECTION 2. LEASE OF THE PREMISES.....................................................3
SECTION 3. INITIAL TERM..............................................................3
3.1 Commencement Date; Initial Term........................................3
3.2 Definition of "Term"...................................................3
SECTION 4. LEASE YEAR................................................................3
SECTION 5. MINIMUM RENT..............................................................3
5.1 Minimum Rent...........................................................3
5.2 Payment of Minimum Rent................................................4
5.3 Late Charge; Interest..................................................4
5.4 Use Restrictions.......................................................4
SECTION 6. REAL ESTATE TAXES AND IMPOSITIONS.........................................5
6.1 Payment................................................................5
SECTION 7. UTILITIES.................................................................6
SECTION 8. SUBORDINATION AND NONDISTURBANCE..........................................6
8.1 Agreement..............................................................6
8.2 Lease May Be Superior..................................................6
8.3 Foreclosure............................................................6
8.4 Paramount Lease........................................................7
SECTION 9. ASSIGNMENT AND SUBLETTING.................................................7
9.1 Consent Required.......................................................7
9.2 Additional Requirements................................................8
9.3 Continuing Liability...................................................8
9.4 Proceeds, Etc..........................................................8
9.5 In Bankruptcy..........................................................8
SECTION 10. MAINTENANCE OF PREMISES..................................................9
SECTION 11. TENANT'S ALTERATIONS.....................................................9
11.1 Exterior and/or Structural Alterations.................................9
11.2 Interior Nonstructural Alterations.....................................9
SECTION 12. SIGNS....................................................................9
SECTION 13. OPEN AREAS AND FACILITIES................................................9
13.1 Operation and Maintenance of Open Areas and Facilities................10
-i-
TABLE OF CONTENTS
(continued)
Page
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SECTION 14. NET LEASE; BOND LEASE...................................................10
14.1 TENANT PAYS ALL CHARGES...............................................10
14.2 BOND LEASE............................................................10
14.3 CANCELLATION RIGHTS...................................................11
SECTION 15. INSURANCE...............................................................11
15.1 Types.................................................................11
15.2 Insured Parties.......................................................12
15.3 Insurers; Replacement.................................................12
15.4 Evidence of Payment...................................................13
15.5 Uninsured Loss........................................................13
15.6 Other Insurance Obtained by Tenant....................................13
15.7 Waiver of Subrogation; Rights under Insurance Policies................13
SECTION 16. INDEMNIFICATION.........................................................14
16.1 Indemnification.......................................................14
16.2 Release...............................................................14
SECTION 17. MECHANICS' LIENS, ETC...................................................14
17.1 No Liens..............................................................14
17.2 Discharge of Liens....................................................15
SECTION 18. Intentionally Omitted...................................................15
SECTION 19. TENANT'S COVENANTS......................................................15
SECTION 20. FIRE OR OTHER CASUALTY..................................................15
20.1 Damage to Premises....................................................15
SECTION 21. EMINENT DOMAIN..........................................................16
21.1 Condemnation of Entire Premises.......................................16
21.2 Partial Condemnation..................................................16
21.3 Award.................................................................17
21.4 Temporary Taking......................................................17
21.5 Outstanding Mortgage..................................................18
SECTION 22. LANDLORD'S RIGHT OF ENTRY...............................................18
SECTION 23. SURRENDER...............................................................18
SECTION 24. HOLDING.................................................................18
SECTION 25. DEFAULTS AND REMEDIES...................................................18
ii
TABLE OF CONTENTS
(continued)
Page
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SECTION 26. ADA REQUIREMENTS........................................................22
SECTION 27. ADDITIONAL RENT.........................................................22
SECTION 28. NOTICES.................................................................22
SECTION 29. BROKERAGE COMMISSION....................................................22
SECTION 30. RECORDATION.............................................................23
SECTION 31. PARTIAL INVALIDITY......................................................23
SECTION 32. ENTIRE AGREEMENT........................................................23
SECTION 33. HEADINGS AND CAPTIONS...................................................23
SECTION 34. SUCCESSORS AND ASSIGNS..................................................23
SECTION 35. ESTOPPEL CERTIFICATES...................................................23
SECTION 36. DEFINITION OF LANDLORD..................................................24
SECTION 37. WAIVERS.................................................................24
SECTION 38. PAYMENTS................................................................24
SECTION 39. NO PARTNERSHIP..........................................................25
SECTION 40. NO OPTION...............................................................25
SECTION 42. MORTGAGEE MODIFICATION..................................................25
SECTION 43. CORPORATE AUTHORITY.....................................................25
SECTION 44. ENVIRONMENTAL COVENANTS.................................................26
44.1 Compliance With Law...................................................26
44.2 Permits...............................................................26
44.3 Documents.............................................................26
44.4 Tanks.................................................................26
44.5 Operations............................................................27
44.6 Required Governmental Approval of Property Transfers..................27
44.7 Activities of Others..................................................28
44.8 Inspection............................................................28
44.9 Indemnification.......................................................28
iii
TABLE OF CONTENTS
(continued)
Page
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44.10 Modifications.........................................................29
SECTION 45. COMPLIANCE WITH LAW.....................................................29
SECTION 46. LANDLORD'S WAIVER OF LIEN...............................................29
SECTION 47. RULE AGAINST PERPETUITIES...............................................29
SECTION 48. EXHIBITS................................................................30
SECTION 49. TITLE...................................................................30
49.1 Adverse Possession....................................................30
49.2 Condition of Title and Premises.......................................30
iv
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Maxtor Corporation
000 XxXxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
--------------------------------------------------------------------------------
SPACE ABOVE THIS LINE FOR RECORDER'S USE
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (the
"Agreement") is made and entered into as of August 31, 2001, by and among
LASALLE BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR NOMURA ASSET SECURITIES
CORPORATION COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-D6
("Lender"), FORTUNEFIRST, LLC, a California limited liability company
("Landlord"), and MMC TECHNOLOGY, INC., a California corporation ("Tenant"). The
effective date of this Agreement shall be the date that Maxtor Corporation, a
Delaware corporation, acquires all of the capital stock of Tenant from Hynix
(the "Effective Date").
1. RECITALS.
1.1 Deed of Trust. Lender is the holder of a Promissory Note
dated February 27, 1998, in the original principal amount of $47,634,000 made by
Landlord, which is secured, inter alia, by that certain Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing (the "Deed of Trust")
and that certain Assignment of Leases and Rents (the "Lease Assignment")
covering the real property located at 0000 Xxxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx,
as more particularly described in the Deed of Trust (the "Premises"), and in the
legal description attached hereto as Exhibit A.
1.2 Lease. Landlord and Tenant entered into that certain Lease
Agreement, dated as of February 27, 1998, as amended and novated by that certain
Lease Amendment and Novation Agreement by and among Landlord, Hynix
Semiconductor America Inc., a California corporation ("Hynix"), and Tenant,
dated as of August 31, 2001 (as amended and novated, the "Lease"), whereby
Landlord demised to Tenant those certain premises consisting of approximately
141,187 square feet of space located within the Premises (the "Demised
Premises"). A true and correct copy of the Lease (inclusive of all riders and
exhibits thereto) is attached hereto as Exhibit B.
1
2. CONSIDERATION. The terms of the Lease, as amended and novated,
constitute a material inducement to Lender's consent thereto and entering into
and performing this Agreement.
3. SUBORDINATION OF THE LEASE. As of the Effective Date, the Lease
shall be made subject and subordinate to the Deed of Trust.
4. NON-DISTURBANCE. On and after the Effective Date, Lender shall
not, in the exercise of any right, remedy or privilege granted by the Deed of
Trust or the Lease Assignment, or otherwise available to Lender at law or in
equity, disturb Tenant's possession under the Lease so long as:
(a) Tenant is not in default under any provision of the Lease
or this Agreement at the time Lender exercises any such right,
remedy or privilege;
(b) The Lease at that time is in full force and effect
according to its original terms, or with such amendments or
modifications as Lender shall have approved, if such approval is
required by the terms of the Deed of Trust or the Lease
Assignment;
(c) Tenant thereafter continues to fully and punctually
perform all of its obligations under the Lease without default
thereunder beyond any applicable cure period; and
(d) Tenant attorns to Lender, or at the direction of Lender,
as provided in Paragraph 5.
Without limiting the foregoing, and so long as the foregoing conditions are met,
Lender agrees that (i) Tenant will not be named as a party to any foreclosure or
other proceeding instituted by Lender to enforce the terms of the Deed of Trust
or the Lease Assignment; (ii) any sale or other transfer of the Demised Premises
or of the Landlord's interest in the Lease, pursuant to foreclosure or any
voluntary conveyance or other proceeding in lieu of foreclosure, will be subject
and subordinate to Tenant's possession under the Lease; and (iii) the Lease will
continue in full force and effect according to its original terms, or with such
amendments as Lender shall have approved, if such approval is required by the
terms and conditions of the Deed of Trust or the Lease Assignment.
5. ATTORNMENT. On and after the Effective Date, Tenant shall attorn
to Lender, to any receiver or similar official for the Demised Premises
appointed at the instance and request, or with the consent, of Lender and to any
person who acquires the Demised Premises, or the Landlord's interest in the
Lease, or both, pursuant to Lender's exercise of any right, remedy or privilege
granted by the Deed of Trust, or otherwise at law or in equity. Without
limitation, Tenant shall attorn to any person or entity that acquired the
Demised Premises pursuant to foreclosure of the Deed of Trust, or by any
proceeding or voluntary conveyance in lieu of such foreclosure, or from Lender,
whether by sale, exchange or otherwise. Any attornment to anyone other than
Lender shall be conditioned upon Tenant receiving a non-disturbance from such
entity.
2
Upon any attornment under this Paragraph 5, the Lease shall continue in
full force and effect as a direct lease between Tenant and the person or entity
to whom Tenant attorns, except that such person or entity shall not be:
(i) liable for any breach, act or omission of any prior
landlord;
(ii) subject to any offsets, claims or defenses which Tenant
might have against any prior landlord;
(iii) bound by any rent or additional rent or other payment in
lieu of rent which Tenant might have paid to any prior landlord
more than thirty (30) days in advance of its due date under the
Lease or which such person or entity has physical possession of;
(iv) bound by any amendment or modification of the Lease made
without Lender's consent, where such consent is required by the
Deed of Trust;
(v) bound by any notice given by Tenant to Landlord, whether
or not such notice is given pursuant to the terms of the Lease,
unless a copy thereof was then also given to Lender; or
(vi) be liable for any security deposit or other sums held by
any prior landlord, unless actually received.
The person or entity to whom Tenant attorns shall be liable to Tenant under the
Lease only during such person or entity's period of ownership, and such
liability shall not continue or survive as to the transferor after a transfer by
such person or entity of its interest in the Lease and the Demised Premises.
6. REPRESENTATIONS AND WARRANTIES.
6.1 Joint and Several. As of the Effective Date, Landlord and
Tenant hereby jointly and severally represent and warrant to Lender as follows
regarding the Lease:
(a) A true and correct copy of the Lease (inclusive of all
riders and exhibits thereto) is attached as Exhibit B to the
counterpart of this Agreement being delivered to Lender. There
are no other oral or written agreements, understandings or the
like between Landlord and Tenant relating to the Demised Premises
or the Lease transaction.
(b) Tenant has accepted possession of the Demised Premises, is
in occupancy thereof under the Lease, and the term commenced on
February 27, 1998.
(c) Under the Lease, Tenant is presently obligated to pay rent
without present right of defense or offset, at the rate of
$162,365.05 per month. Rent is paid through and including August
1, 2001. No rent has been paid more than thirty (30) days in
advance, and Tenant has no claim against the Landlord for any
deposits or other sums.
3
(d) Except as disclosed in this Agreement, The Lease has not
been modified, altered or amended in any respect.
(e) All of the improvements contemplated by the Lease have been
entirely completed as required therein.
(f) The addresses for notices to be sent to Tenant and
Landlord are as set forth in the Lease.
(g) To Tenant's knowledge, Tenant has no right of first
refusal, option or other right to purchase the Premises or any
part thereof, including, without limitation, the Demised
Premises.
6.2 Several. As of the Effective Date, Landlord and Tenant
hereby severally represent and warrant to Lender with respect to themselves, but
not with respect to one another:
(a) The execution of the Lease was duly authorized, the Lease
was properly executed and is in full force and effect and is
valid, binding and enforceable against Tenant and Landlord and
there exists no default, nor state of facts which with notice,
the passage of time, or both, could ripen into a default, on the
part of either Tenant or Landlord.
(b) There has not been filed by or against nor, to the best of
the knowledge and belief of the representing party, is there
threatened against or contemplated by, Landlord or Tenant, a
petition in bankruptcy, voluntary or otherwise, any assignment
for the benefit of creditors, any petition seeking reorganization
or arrangement under the bankruptcy laws of the United States or
of any state thereof, or any other action brought under said
bankruptcy laws.
(c) There has not been any assignment, hypothecation or pledge
of the Lease or rents accruing under the Lease, other than
pursuant to the Deed of Trust and the Lease Assignment. Tenant
makes the representation set forth in this subparagraph only to
its best knowledge and belief.
7. RENTS. Landlord and Tenant jointly and severally acknowledge that
the Lease Assignment provides for the direct payment to Lender of all rents and
other monies due and to become due to Landlord under the Lease upon the
occurrence of certain conditions as set forth in the Lease Assignment without
Lender's taking possession of the Demised Premises or otherwise assuming
Landlord's position or any of Landlord's obligations under the Lease. Upon
receipt from Lender of written notice to pay all such rents and other monies to
or at the direction of Lender, Landlord authorizes and directs Tenant thereafter
to make all such payments to or at the direction of Lender, releases Tenant of
any and all liability to Landlord for any and all payment so made, and shall
defend, indemnify and hold Tenant harmless from and against any and all claims,
demands, losses, or liabilities asserted by, through or under Landlord (except
by Lender) for any and all payments so made. Upon receipt of such notice, Tenant
thereafter shall pay all monies then due and becoming due from Tenant under the
Lease to Lender or at the direction of
4
Lender, notwithstanding any provision of the Lease to the contrary. Tenant
agrees that neither Lender's demanding or receiving any such payments, nor
Lender's exercising any other right, remedy, privilege, power or immunity
granted by the Deed of Trust or the Lease Assignment, will operate to impose any
liability upon Lender for performance of any obligation of Landlord under the
Lease unless and until Lender elects otherwise in writing. Such payments shall
continue until Lender directs Tenant otherwise in writing.
Tenant agrees not to pay any rent under the Lease more than thirty (30)
days in advance without Lender's consent. The provisions of this Paragraph 7
will apply from time to time throughout the term of the Lease.
8. CURE. If Tenant becomes entitled to terminate the Lease or
offset, withhold or xxxxx rents because of any default by Landlord, then Tenant
shall give Lender written notice specifying Landlord's default. Lender then
shall have the right, but not the obligation, to cure the specified default
within the following time periods:
(a) Fifteen (15) days after receipt of such notice with
respect to defaults that can be cured by the payment of money; or
(b) Thirty (30) days after receipt of such notice with respect
to any other default; unless the cure requires Lender to obtain
possession of the Demised Premises, in which case such thirty
(30) day period shall not commence until Lender acquires
possession, so long as Lender proceeds promptly to acquire
possession of the Demised Premises with due diligence, by
foreclosure of the Deed of Trust or otherwise.
Nothing contained in this Paragraph 8 shall require Lender to commence or
continue any foreclosure or other proceedings, or, if Lender acquires possession
of the Demised Premises, to continue such possession, if all defaults specified
by Tenant in its notice are cured. Possession by a receiver, or other similar
official appointed at the instance, or with the consent, of Lender shall
constitute possession by Lender for all purposes under this Paragraph.
9. ESTOPPEL LETTERS. Whenever reasonably requested by Lender,
Landlord and Tenant from time to time shall severally execute and deliver to or
at the direction of Lender, and without charge to Lender, one or more written
certifications of all of the matters as set forth in Paragraph 6, whether Tenant
has exercised any renewal option or options and any other information the Lender
may reasonably require to confirm the current status of the Lease, including,
without limitation, a confirmation that the Lease is and remains subordinated as
provided in this Agreement.
10. CASUALTY AND EMINENT DOMAIN. Landlord and Tenant jointly and
severally agree that the Deed of Trust permits Lender, at its option, to apply
to the indebtedness from time to time secured by the Deed of Trust any and all
insurance proceeds payable with respect to any casualty loss at the Demised
Premises and any and all awards or other compensation that may be payable for
the condemnation of all or any portion of the Demised Premises, or any interest
therein, or by way of negotiated settlement or conveyance in lieu of
condemnation; and Landlord and Tenant jointly and severally consent to any such
application by
5
Lender. Notwithstanding the foregoing, Landlord and Lender agree that any and
all insurance or condemnation proceeds payable with respect to Tenant's
property, or the interruption or relocation of Tenant's business (except for
rental loss insurance proceeds) will be paid to Tenant, so long as they do not
reduce the proceeds otherwise payable to Lender.
11. NOTICES. All notices, demands, and other communications that must
or may be given or made in connection with this Agreement must be in writing
and, unless receipt is expressly required, will be deemed delivered or made five
(5) days after having been mailed by registered or certified mail, return
receipt requested, or by express mail, in any event with sufficient postage
affixed, and addressed to the parties as follows:
TO LENDER: CAPMARK SERVICES, L.P.
000 Xxxxxxxxx Xxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Asset Management Group
TO LANDLORD: FORTUNEFIRST, LLC
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn.: Manager
TO TENANT: MMC TECHNOLOGY, INC.
0000 Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Manager
COPY TO: MAXTOR CORPORATION
000 XxXxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attn.: General Counsel
Such addresses may be changed by notice pursuant to this Paragraph 11; but
notice of change of address is effective only upon receipt. Landlord and Tenant
jointly and severally agree that they will furnish Lender with copies of all
notices relating to the Lease. All communications to Lender shall reference
CapMark Loan No.: 400030616.
12. SUCCESSORS AND ASSIGNS: As used in this Agreement, the word
"Tenant" shall mean Tenant and any subsequent holder or holders of an interest
under the Lease, as the text may require, provided that the interest of such
holder is acquired in accordance with the terms and provisions of the Lease and
the word "Lender" shall mean Lender or any other subsequent holder or holders of
the Deed of Trust or any party acquiring title to the Demised Premises by
purchase at a foreclosure sale, by deed of the Lender, or otherwise. Subject to
the foregoing, this Agreement shall bind and inure to the benefit of Landlord,
Tenant and Lender, their legal representatives, successors and assigns. The
terms Lease, Deed of Trust and Lease Assignment shall include any and all
amendments, modifications, replacements, substitutions, extensions, renewals and
supplements thereto.
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13. FURTHER ASSURANCES. Landlord and Tenant from time to time shall
execute and deliver at Lender's request all instruments that may be necessary or
appropriate to evidence their agreement hereunder provided such instrument
neither increases Tenant's obligations or decreases its rights under the Lease.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all such
counterparts shall constitute one and the same instrument.
15. SEVERABILITY. A determination that any provision of this
Agreement is unenforceable or invalid shall not affect the enforceability or
validity of any other provision, and any determination that the application of
any provision of this Agreement to any person or to particular circumstances is
illegal or unenforceable shall not affect the enforceability or validity of such
provision as it may apply to other persons or circumstances.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
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16. ATTORNEYS' FEES. If any legal action, arbitration, or other
proceeding is commenced to enforce any provision of this Agreement, the
prevailing party shall be entitled to an award of its actual expenses, including
reasonable attorneys' fees.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
LENDER:
LASALLE BANK, NATIONAL ASSOCIATION,
AS TRUSTEE FOR NOMURA ASSET SECURITIES
CORPORATION COMMERCIAL MORTGAGE PASS-
THROUGH CERTIFICATES, SERIES 1998-D6
By: CapMark Services, L.P.,
a Texas limited partnership, its
authorized agent
By: Pearl Mortgage, Inc.,
a Delaware corporation, its sole
general partner
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
--------------------------
Title: Servicing Officer
LANDLORD:
FORTUNEFIRST, LLC,
a California limited liability company
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------------
Title: CFO
---------------------------------
TENANT:
MMC TECHNOLOGY, INC.,
a California corporation
By: /s/ Taj Giulamani
------------------------------------
Name: Taj Giulamani
----------------------------------
Title: VP Finance
---------------------------------
8
EXHIBIT A
Real property in the City of San Xxxx, County of Santa Xxxxx, State of
California, described as
PARCEL ONE:
Parcel 13, as shown on that certain Parcel Map filed for record in the
office of the Recorder of the County of Santa Xxxxx, State of California on
January 28, 1977, in Book 388 of Maps page(s) 16 through 27.
EXCEPTING THEREFROM the underground water rights without rights of
surface entry as conveyed to San Xxxx Water Works, a California corporation, by
Deed recorded May 22, 1985, in Book J353, Page 153 of Official Records.
APN: 000-00-000
ARB: 243-19-004.01; 243-19-011.01
9
EXHIBIT B
[Copy of Lease]
10
STATE OF GEORGIA )
) ss.
COUNTY OF XXXXXX )
On 8-28-01 before me, Geryle X. Xxxxx, Notary Public, personally
appeared Xxxxxx X. Xxxxx,
, personally known to me
--------------
Or
proved to me on the basis of satisfactory evidence
--------------
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal
/s/ Geryle X. Xxxxx
------------------------------------
Geryle X. Xxxxx
SIGNATURE OF NOTARY PUBLIC
(S E A L)
11
STATE OF CALIFORNIA )
) ss.
COUNTY OF SANTA XXXXX )
On Aug. 30, 2001 before me, Xxxx X. Xxxxxx, Notary Public, personally
appeared Taj Giulamani,
, personally known to me
--------------
Or
proved to me on the basis of satisfactory evidence
--------------
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal
/s/ Xxxx X. Xxxxxx
---------------------------------------
Xxxx X. Xxxxxx
SIGNATURE OF NOTARY PUBLIC
(S E A L)
12
STATE OF CALIFORNIA )
) ss.
COUNTY OF SANTA XXXXX )
On 8-30-01 before me, Xxxx X. Xxxxxx, Notary Public, personally appeared
Xxxxxx X. Xxxxxx,
, personally known to me
--------------
Or
proved to me on the basis of satisfactory evidence
--------------
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal
/s/ Xxxx X. Xxxxxx
---------------------------------------
Xxxx X. Xxxxxx
SIGNATURE OF NOTARY PUBLIC
(S E A L)
13
