SUBLEASE OF THE LAND
AND LEASE OF THE IMPROVEMENTS
By and Between
SUMITOMO BANK LEASING AND FINANCE, INC.,
a Delaware corporation
as Landlord
and
INTEGRATED DEVICE TECHNOLOGY, INC.
a Delaware corporation
as Tenant
for
Premises located in
Dawson Creek Park
Hillsboro, Oregon
THIS LEASE IS NOT INTENDED TO CONSTITUTE A TRUE LEASE
FOR INCOME TAX PURPOSES. SEE SECTION 21.2
TABLE OF CONTENTS
ARTICLE 1
BASIC LEASE PROVISIONS
Page
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1.1 Date of Lease ...................................................... 1
1.2 Landlord ........................................................... 1
1.3 Tenant ............................................................. 1
1.4 Land ............................................................... 1
1.5 Ground Lessor ...................................................... 1
1.6 Premises ........................................................... 2
1.7 Term ............................................................... 2
1.9 Base Rent .......................................................... 2
1.10 Ground Rent ........................................................ 2
1.11 Addresses for Notices .............................................. 3
1.12 Wire Transfer Instructions ......................................... 3
ARTICLE 2
DEFINITIONS
2.1 Additional Rent .................................................... 4
2.2 Advance ............................................................ 4
2.3 Base Rent .......................................................... 4
2.4 Building ........................................................... 4
2.5 Calculation Period ................................................. 5
2.6 Capitalized Amount ................................................. 5
2.7 Capitalized Funding Costs .......................................... 5
2.8 City ............................................................... 5
2.9 Collateral ......................................................... 5
2.10 Commitment Amount .................................................. 5
2.11 Commitment Component ............................................... 5
2.12 Construction Management Agreement .................................. 6
2.13 Construction Period Expiration Date ................................ 6
2.14 Contractor ......................................................... 6
2.15 Custody Agreement .................................................. 6
2.16 Default Rate ....................................................... 6
2.17 Entity ............................................................. 6
2.18 Event of Default ................................................... 6
2.19 Guaranteed Residual Value .......................................... 6
2.20 Improvements ....................................................... 6
2.21 Interim Period ..................................................... 7
2.22 Initial Advance .................................................... 7
2.23 Land ............................................................... 7
2.24 Lease Inception Date ............................................... 7
2.25 Lease Investment Balance ........................................... 7
2.26 Legal Requirements ................................................. 7
2.27 LIBOR Rate ......................................................... 8
2.28 Notice ............................................................. 8
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2.29 Official Records .................................................. 8
2.30 Permitted Title Exceptions ........................................ 8
2.31 Pledge Agreement .................................................. 9
2.32 Premises .......................................................... 9
2.33 Real Estate Taxes ................................................. 9
2.34 Rent Commencement Date ............................................ 9
2.35 Rent Payment Date ................................................. 9
2.36 Required Permits .................................................. 9
2.37 SBLF Mortgage ..................................................... 9
2.38 SBNYTC ............................................................ 9
2.39 Taking ............................................................ 9
2.40 Tenant's Property ................................................. 9
2.42 Terminology ....................................................... 10
ARTICLE 3
DEMISE
3.1 Premises........................................................... 10
ARTICLE 4
TERM
4.1 Term ...............................................................10
4.2 Holding Over .......................................................10
ARTICLE 5
CONSTRUCTION OF IMPROVEMENTS
5.1 Tenant's Rights to Construct Improvements ..........................11
5.2 Title to and Nature of Improvements ................................11
5.3 Lien Waivers .......................................................11
5.4 Alterations ........................................................11
ARTICLE 6
FUNDING
6.1 Request for Construction Funding: Landlord's Obligation to
Fund............................................................... 11
6.2 Exhibit Reflecting Rent Commencement Date.......................... 11
ARTICLE 7
RENT
7.1 Base Rent ..........................................................12
7.2 Proration ..........................................................12
7.3 No Abatement of Rent ...............................................12
7.4 Delinquent Rent ....................................................12
7.5 Additional Rent ....................................................12
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ARTICLE 8
TAXES
8.1 Real Estate Taxes ..................................................13
8.2 Personal Property Taxes ............................................14
8.3 Right to Contest ...................................................14
8.4 Additional Charges .................................................15
ARTICLE 9
INSURANCE
9.1 Liability Insurance ................................................15
9.2 Builders' Risk Insurance ...........................................15
9.3 All-Risk Insurance .................................................16
9.4 General Requirements ...............................................16
9.5 Waiver of Subrogation ..............................................17
9.6 Indemnity ..........................................................17
ARTICLE 10
USE
10.1 Use................................................................ 18
10.2 Contest of Legal Requirements...................................... 20
ARTICLE 11
UTILITIES AND SERVICES
11.1 Services to the Premises........................................... 20
ARTICLE 12
MAINTENANCE AND REPAIRS; SURRENDER OF THE PREMISES
12.1 Tenant Obligations................................................. 20
12.2 Surrender of the Premises.......................................... 21
ARTICLE 13
LIENS
ARTICLE 14
ASSIGNMENT BY LANDLORD
14.1 Further Mortgages or Encumbrances by Landlord...................... 21
14.2 Landlord's Right to Sell........................................... 21
14.3 Transfer of Funds and Property..................................... 22
ARTICLE 15
ASSIGNMENT AND SUBLEASING
15.1 Right to Assign.................................................... 22
15.2 Right to Sublet.................................................... 22
15.3 Mortgage by Tenant................................................. 23
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Page
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ARTICLE 16
EMINENT DOMAIN
16.1 Total or Substantial Taking........................................ 23
16.2 Partial Taking..................................................... 23
16.3 Temporary Taking................................................... 23
16.4 Damages............................................................ 24
16.5 Notice and Execution............................................... 24
ARTICLE 17
DAMAGE OR DESTRUCTION
17.1 Casualty........................................................... 24
17.2 Termination of Lease............................................... 25
17.3 Insurance Proceeds................................................. 25
ARTICLE 18
QUIET ENJOYMENT
18.1 Quiet Enjoyment.................................................... 26
ARTICLE 19
DEFAULT
19.1 Default............................................................ 27
19.2 Contest by Tenant.................................................. 28
19.3 Landlord's Remedies................................................ 29
19.4 No Waiver.......................................................... 30
19.5 Effect of Assignment............................................... 30
19.6 Landlord Cure Right................................................ 30
ARTICLE 20
TENANT'S OPTION TO PURCHASE OR TERMINATE
20.1 Option To Purchase Premises........................................ 31
20.2 Termination Option................................................. 32
ARTICLE 21
MISCELLANEOUS
21.1 Relationship....................................................... 34
21.2 Form of Transaction: Certain Tax Matters........................... 34
21.3 Notices............................................................ 35
21.4 Severability of Provisions......................................... 35
21.5 Entire Agreement: Amendment........................................ 35
21.6 Memorandum of Sublease of the Land and Lease of the
Improvements....................................................... 35
21.7 Successors and Assigns............................................. 36
21.8 Commissions........................................................ 36
21.9 Attorneys' Fees.................................................... 36
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Page
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21.10 Governing Law...................................................... 36
21.11 Counterparts....................................................... 36
21.12 Time Is of the Essence............................................. 36
21.13 No Third Party Beneficiaries....................................... 36
21.14 Limitations on Recourse............................................ 37
21.15 Estoppel Certificates.............................................. 37
21.16 Collateral......................................................... 37
21.17 As-Is Lease........................................................ 37
21.18 Net Lease.......................................................... 37
21.19 Representations and Warranties..................................... 38
21.20 Tenant's Wavier of Demand for Possession........................... 38
21.21 Financial Reporting................................................ 38
ARTICLE 22
INDEMNIFICATION
22.1 Tax Indemnity...................................................... 38
22.2 Environmental Indemnity............................................ 39
22.3 Construction Indemnification....................................... 40
22.4 General Indemnity.................................................. 40
ARTICLE 23
COVENANTS OF LANDLORD
23.1 Title.............................................................. 41
23.2 Land Use........................................................... 41
23.3 Transfer of Property Interests..................................... 42
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SUBLEASE OF THE LAND AND LEASE OF THE
IMPROVEMENTS
THIS SUBLEASE OF THE LAND AND LEASE OF THE IMPROVEMENTS ("Lease") by
and between SUMITOMO BANK LEASING AND FINANCE, INC., a Delaware corporation
("Landlord"), and INTEGRATED DEVICE TECHNOLOGY, INC., a Delaware corporation
("Tenant"), is entered into as of the date set forth in Article 1 and shall be
effective and binding upon the parties hereto as of such date. Capitalized terms
used in this Lease shall have the definitions set forth in Article 2 or in the
text of this Lease.
In consideration of the Base Rent reserved herein, and the terms,
covenants and conditions set forth below, Landlord and Tenant hereby agree as
follows:
ARTICLE 1
BASIC LEASE PROVISIONS
1.1 Date of Lease: January 27, 1995.
1.2 Landlord: Sumitomo Bank Leasing and Finance, Inc., a Delaware
corporation
1.3 Tenant: Integrated Device Technology, Inc., a Delaware
corporation.
1.4 Land: A leasehold interest in that certain tract of land located
in the City of Hillsboro, Washington County, Oregon, as
more particularly described on Exhibit A attached hereto,
arising under that certain Ground Lease of even date
herewith between Tenant, as Ground Lessor, and Landlord,
as Ground Lessee (the "Ground Lease"), together with all
easements, rights of way, appurtenances and other rights
and benefits belonging or pertaining to such Land.
Landlord makes no representations as to the accuracy of
the description of the Land or the leasehold interest.
1.5 Ground Lessor: Integrated Device Technology, Inc., a Delaware
corporation.
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1.6 Premises: The Land and the Improvements which Tenant may construct,
as agent for Landlord, on the Land pursuant to the terms
of that certain Construction Management Agreement of even
date herewith between Landlord and Tenant.
1.7 Term: The term of this Lease ("Term") shall commence on the Date
of Lease set forth in Section 1.1 above and shall expire
on January 27, 2000 ("Expiration Date"). The Term shall
cease upon, and shall not refer to any period of time
after, termination of this Lease (whether pursuant to the
terms of the Lease, by operation of law, or otherwise).
1.8 Rent Commencement Date:
The rent commencement date ("Rent Commencement Date")
shall be the twentieth (20th) day of the second full
calendar month which commences immediately following the
earlier to occur of the following:
(1) June 30, 1996; or
(2) The first (1st) business day following the date upon
which all of the following have occurred: (i) the Building
and all other Improvements that Tenant intends to cause to
be constructed with Advances made by Landlord pursuant to
the Construction Management Agreement have been
substantially completed; (ii) valid notices of completion
have been recorded with respect thereto; and (iii) all
necessary governmental approvals (including permanent
certificates of occupancy) have been issued as may be
necessary to occupy all portions of the Building for the
conduct of Tenant's business therein.
1.9 Base Rent: As described in Section 2.3.
1.10 Ground Rent: Any payment made to Ground Lessor under the Ground Lease.
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1.11 Addresses for Notices:
LANDLORD: TENANT:
Sumitomo Bank Leasing and Finance, Inc. Integrated Device Technology, Inc.
277 Park Avenue 2975 Stender Way
New York, NY 10172 Santa Clara, CA 95054
Attention: Chief Credit Officer Attention: Mika Murakami, Treasurer
With a copy to: With a copy to:
Landels, Ripley & Diamond Mr. Jack Menache
Hills Plaza 4073 Eagle Nest Lane
350 Steuart Street Danville, CA 94506-5811
San Francisco, CA 94105-1250
Attention: Bruce W. Hyman, Esq.
and and
Sumitomo Bank of New York Trust Wilson, Sonsini, Goodrich & Rosati
Company 650 Page Mill Road
277 Park Avenue Palo Alto, CA 94304
New York, NY 10172 Attention: Bradford C. O'Brien,
Attention: Corporate Trust Department Esq.
and
Preston, Gates & Ellis
3200 U.S. Bancorp Tower
111 S.W. Fifth Avenue
Portland, OR 97204
Attention: Randall D. Bateman,
Esq.
1.12 Wire Transfer Instructions:
Morgan Guaranty Trust Company of New York
ABA#021000238
For credit to The Sumitomo Bank, Limited A/C #631-28-256
Further credit to Sumitomo Bank Leasing and Finance, Inc.
A/C No. 283572
1.13 Interim Period: Interim Period shall be the period commencing on the Date
of Lease and ending on the day before the Construction
Period Expiration Date.
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This Article 1 is intended to supplement and/or summarize the
provisions set forth in the balance of this Lease. If there is any conflict
between any provisions contained in this Article 1 and the balance of this
Lease, the balance of this Lease shall control.
ARTICLE 2
DEFINITIONS
For purposes of this Lease, the following defined terms shall have the
meanings set forth in this Article 2.
2.1 Additional Rent. "Additional Rent" shall mean any amounts other
than Base Rent payable by Tenant to Landlord or to other Entities on Landlord's
behalf as required under this Lease, break-funding costs of Landlord related to
the Lease Investment Balance (as defined below) arising out of unscheduled
payments or exercise of the Purchase Option pursuant to Section 20.1 below other
than on Rent Payment Days.
2.2 Advance. "Advance" shall mean any payment by Landlord pursuant to
Tenant's written request for (i) any costs relating to construction of the
Improvements, whether funded under the Construction Management Agreement or paid
directly by Landlord, including, without limitation, transaction costs
(including title charges and professional fees and expenses), construction
costs, architectural, engineering and other professional fees, arrangement fees,
appraisal fees, inspection, testing and permitting fees, fees and costs for
review of plans and any changes thereto, travel expense for inspections,
insurance and any other soft costs relating to the Improvements; (ii) the items
and/or amounts described in Exhibit B; (iii) Real Estate Taxes; (iv) the Base
Rent paid by Landlord as lessee under the Ground Lease during the term thereof;
(v) a reasonable and customary fee relating to the construction of the
Improvements and the processing of Draw Requests (equal to $2000 per annum,
prorated based on the number of months of the period over which such services
are rendered, payable to SBNYTC), (vi) custodian fees related to the Collateral
as set forth in the Custody Agreement, and (vii) any other payment described
herein or in the Construction Management Agreement as an Advance.
2.3 Base Rent. "Base Rent" shall mean, as of a Rent Payment Date, that
annual amount equal to the product obtained by multiplying the Lease Investment
Balance (at the time of the relevant calculation) by the sum of the LIBOR Rate
plus 30 basis points, which annual amount is then prorated for the Calculation
Period in question on the basis of a 360 day year and the actual number of days
elapsed.
2.4 Building. "Building" shall mean the building and related
improvements to be constructed on the Land that shall become part of the
Improvements, which shall be a semiconductor manufacturing facility containing
clean room areas; provided, however, that the Building and the Improvements
shall not include any Tenant's Property (as defined herein).
4
2.5 Calculation Period. "Calculation Period" shall mean the period from
and including the 15th day of each month during the Interim Period through the
14th day of the following month; provided that the first Calculation Period
shall be the period from the Date of Lease through the 14th day of the following
month and the last Calculation Period shall be the period from and including the
15th day of the month prior to the month in which the Construction Period
Expiration Date occurs through the day immediately preceding the Construction
Period Expiration Date.
2.6 Capitalized Amount. "Capitalized Amount" shall mean that amount,
determined as of the close of each Calculation Period during the Term and added
to the Lease Investment Balance as of such date, equal to the sum of Capitalized
Funding Costs plus the Commitment Component accrued for the Calculation Period
in question. Landlord shall notify Tenant of the Capitalized Amount for each
Calculation Period and the basis for the determination thereof; and if Tenant
fails to object to such determination within ten (10) business days of
Landlord's notice thereof, Tenant shall be deemed to have approved such
determination.
2.7 Capitalized Funding Costs. "Capitalized Funding Costs" shall mean,
for each Calculation Period during the Interim Period, that annual amount equal
to the product obtained by multiplying the Lease Investment Balance outstanding
from time to time during the Calculation Period in question by the sum of the
LIBOR Rate plus 30 basis points, which annual amount is then prorated for the
Calculation Period in question on the basis of a 360 day year and the actual
number of days in such Calculation Period. The LIBOR Rate to be used with
respect to the determination of Capitalized Funding Costs during the Interim
Period shall be the one (1) month LIBOR Rate.
2.8 City. "City" shall mean the City of Hillsboro, Oregon.
2.9 Collateral. "Collateral" shall have the meaning set forth in
Section 21.16.
2.10 Commitment Amount. "Commitment Amount" shall mean SIXTY FOUR
MILLION and no/100 Dollars ($64,000,000.00).
2.11 Commitment Component. "Commitment Component" shall mean, for each
Calculation Period during the Interim Period, that annual amount equal to the
product obtained by multiplying the unused Commitment Amount outstanding from
time to time during the Calculation Period in question by .25%, which annual
amount is then prorated for the Calculation Period in question on the basis of a
360 day year and the actual number of days in such Calculation Period. Portions
of the Commitment Amount shall be deemed to be used (i) as of the date of each
Advance by Landlord during the Interim Period, on which date each such Advance
shall be added to and become part of the Lease Investment Balance, and (ii) as
of the date at the close of each Calculation Period on which the
5
Capitalized Amount for such Calculation Period is added to and becomes part of
the Lease Investment Balance.
For purposes of calculating the Lease Investment Balance and any other
obligations under this Lease, the Commitment Component shall only accrue during
the Interim Period and shall cease to accrue following the Construction Period
Expiration Date.
2.12 Construction Management Agreement. "Construction Management
Agreement" shall mean that certain Construction Management Agreement of even
date herewith between Landlord and Tenant regarding the construction of the
Improvements.
2.13 Construction Period Expiration Date. "Construction Period
Expiration Date" shall mean the twentieth (20th) day of the month immediately
preceding the month in which the Rent Commencement Date occurs.
2.14 Contractor. "Contractor" shall mean any construction manager or
general contractor hired to construct any portion of the Improvements, which
contractor shall be selected by the Construction Manager in its capacity as
agent for Landlord under the Construction Management Agreement, and shall be
subject to Landlord's approval, which shall not be unreasonably withheld or
delayed.
2.15 Custody Agreement. "Custody Agreement" shall mean that certain
Institutional Custody Agreement of even date herewith executed by and between
Landlord and SBNYTC.
2.16 Default Rate. "Default Rate" means with respect to the Lease
Investment Balance, the one (1) month LIBOR Rate plus 230 basis points.
Notwithstanding the foregoing, in the event that the foregoing Default Rate
shall be in violation of any usury or similar law, then the Default Rate shall
be reduced to the extent necessary to cause the Default Rate to comply with any
usury or similar law.
2.17 Entity. "Entity" shall mean any person, corporation, partnership
(general or limited), joint venture, association, limited liability company,
joint stock company, trust or other business entity or organization.
2.18 Event of Default. "Event of Default" shall have the meaning set
forth in Section 19.1.
2.19 Guaranteed Residual Value: "Guaranteed Residual Value" shall mean
eighty-five percent (85%) of the Lease Investment Balance.
2.20 Improvements. "Improvements" shall mean any and all improvements
which Tenant shall, as construction agent for Landlord, cause to be erected,
constructed
6
or situated upon the Land or any part thereof during the Term using funding
provided by or through Landlord in an amount not to exceed SIXTY FOUR MILLION
and No/100 Dollars ($64,000,000.00) under and pursuant to the terms of the
Construction Management Agreement, including tenant improvements, electrical,
mechanical and plumbing, clean room improvements, computer floors, process
piping, equipment housing, DI water system, chemical waste storage and treatment
system. Notwithstanding anything contained herein, the term "Improvements" shall
not include any Tenant's Property.
2.21 Interim. "Interim Period" shall have the meaning set forth in the
Basic Lease Provisions.
2.22 Initial Advance. Initial Advance shall mean the amounts described
in Exhibit B pertaining to execution of the Ground Lease and this Lease, and
such other amounts as are set forth in Tenant's Draw Request.
2.23 Land. "Land" shall have the meaning set forth in the Basic Lease
Provisions.
2.24 Lease Inception Date. "Lease Inception Date" shall mean the Date
of Lease.
2.25 Lease Investment Balance. "Lease Investment Balance" shall mean,
at the time in question, the aggregate amount of all Advances made by Landlord
plus any outstanding Capitalized Amount (as described in Section 2.6 above) not
yet added to the Lease Investment Balance reduced by the following: (1) the
aggregate of all amounts received by Landlord pursuant to the provisions of
Article 16 (Eminent Domain), and Article 17 (Damage or Destruction), Section
19.3 (Landlord's Remedies), Section 20.1 (Option to Purchase Premises), and/or
Section 20.2 (Termination Option); and (2) the aggregate of all amounts received
by Landlord in respect of this Lease or the Improvements or any related
agreement (including, without limitation, the Pledge Agreement) that are not
otherwise applied to reduce the Lease Investment Balance and which constitute a
repayment or reduction of the amounts placed at risk by the Landlord whether
through realization upon the Collateral or otherwise, excluding for purposes of
this clause amounts paid as rent hereunder, reimbursement for expenses, fees and
similar items incurred by Landlord and payable by Tenant to Landlord under the
Transaction Documents and the SBLF Mortgage.
2.26 Legal Requirements. "Legal Requirements" shall mean all statutes,
codes, laws, acts, ordinances, orders, judgments, decrees, injunctions, rules,
regulations, permits, licenses, authorizations, directions and requirements of
all federal, state, county, municipal and other governments, departments,
commissions, boards, courts, authorities, officials and officers, which now or
at any time hereafter are applicable to this Lease or
7
applicable to and enforceable against the Premises, the Improvements or any part
thereof, as applicable.
2.27 LIBOR Rate. "LIBOR Rate" shall mean, for each Borrowing Period as
defined below, the annualized rate determined by The Sumitomo Bank, Limited as
the rate that would be offered to The Sumitomo Bank, Limited's San Francisco or
New York office for U.S. dollar deposits in the London Interbank Market as
quoted for the mid-morning average LIBOR Rate published by Reuters Monitoring
Systems for the particular Borrowing Period (rounded upwards, if necessary, to
the next higher 1/16th of 1%) for deposits by The Sumitomo Bank, Limited of
immediately available dollars in the London Interbank Market on the day two (2)
Business Days preceding the first day of the term of that Borrowing Period. In
the event the Reuters quote is not available, the British Banker's Association's
Interest Settlement Rate shall be used. "Borrowing Period" shall mean (i) 1
month during the Interim Period, and (ii) 1, 3, 6, 9 or 12 months as selected by
Tenant from time to time during the balance of the Term at least two (2)
business days prior to the end of the then current Borrowing Period (provided
that, if Tenant fails to so select a Borrowing Period prior to the end of the
then current Borrowing Period, a Borrowing Period of one (1) month shall be
deemed to have been selected by Tenant); provided, however, that (X) during the
Interim Period there shall not be more than one (1) LIBOR Rate in effect at any
time, and (Y) from and after the Construction Period Expiration Date, there
shall not be more than three (3) LIBOR Rates in effect at any time. Landlord and
Tenant acknowledge that more than one LIBOR Rate may be in effect at any time
during the Term with respect to portions of the outstanding Lease Investment
Balance as designated by Tenant at the time that a particular Borrowing Period
is designated, and the calculation of monthly Capitalized Funding Costs or Base
Rent, as the case may be, shall be based upon the LIBOR Rates applicable to the
portions of the Lease Investment Balance so designated.
2.28 Notice. "Notice" shall mean a written advice, request, demand or
notification required or permitted by this Lease, as more particularly provided
in Section 21.3.
2.29 Official Records. "Official Records" shall mean the official
records of Washington County, Oregon.
2.30 Permitted Title Exceptions. "Permitted Title Exceptions" shall
mean the following: (1) the exceptions set forth in Exhibit C; (2) any
exceptions created or caused by Tenant or to which Tenant consents in writing;
(3) taxes and assessments (excluding Landlord's Taxes as defined in Section 8.1
below) not yet due and payable; (4) the SBLF Mortgage; (5) all title defects,
liens, encumbrances, deeds of trust, mortgages, rights-of-way, and restrictive
covenants and conditions affecting the Land unless any of the foregoing arise as
a result of Landlord's actions or with Landlord's written consent
8
(unless such actions taken or consent given by Landlord are requested in writing
by Tenant); and (6) this Lease.
2.31 Pledge Agreement. "Pledge Agreement" shall mean that certain
Pledge Agreement of even date herewith executed by and between Tenant and
Landlord.
2.32 Premises. "Premises" shall have the meaning set forth in the Basic
Lease Provisions.
2.33 Real Estate Taxes. "Real Estate Taxes" shall have the meaning set
forth in Section 8.1(b).
2.34 Rent Commencement Date. "Rent Commencement Date" shall have the
meaning set forth in the Basic Lease Provisions.
2.35 Rent Payment Date. "Rent Payment Date" shall have the meaning set
forth in Section 7.1.
2.36 Required Permits. "Required Permits" shall mean each and every
building and development permit including, without limitation, demolition
permits, site permits and addenda thereto (including, without limitation,
foundation permits and structural permits), temporary and final occupancy
permits and any other governmental or quasi-governmental approvals which must be
issued by any governmental authority, department, commission, board, official or
officer as a condition precedent to construction and occupancy of any
Improvements.
2.37 SBLF Mortgage. "SBLF Mortgage" shall mean that certain mortgage
executed by Tenant in favor of Landlord of even date herewith.
2.38 SBNYTC. "SBNYTC" shall mean Sumitomo Bank of New York Trust
Company.
2.39 Taking. "Taking" shall have the meaning set forth in Section 16.1.
2.40 Tenant's Property. "Tenant's Property" shall mean any process
equipment, fixtures, furniture, furnishings, or trade fixtures which are
purchased or constructed with funds of Tenant and not purchased, paid for, or
otherwise financed by Advances made by Landlord, whether or not installed upon
the Land.
2.41 Term. "Term" shall have the meaning set forth in the Basic Lease
Provisions.
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2.42 Terminology. All personal pronouns used in this Lease shall
include all other genders. The singular shall include the plural and the plural
shall include the singular. Titles of Articles, Sections and Subsections in this
Lease are for convenience only and neither limit nor amplify the provisions of
this Lease, and all references in this Lease to Articles, Sections or
Subsections shall refer to the corresponding Article, Section or Subsection of
this Lease unless specific reference is made to the articles, sections or other
subdivisions of another document or instrument. The word "days" or "business
days" as used herein shall mean business days (i.e., excluding holidays when
banks in Oregon, New York, San Francisco and London (with respect to payment of
Advances, payment of Basic Rent and the determination of the LIBOR Rate) are
generally closed for business and weekends) unless otherwise expressly stated.
Unless otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with generally accepted accounting principles as in effect from time
to time, applied on a basis consistent with the most recent audited consolidated
financial statements of the Tenant and its consolidated subsidiaries delivered
to Landlord.
2.43 Transaction Documents. "Transaction Documents" are the Ground
Lease, this Lease, the Pledge Agreement and the Construction Management
Agreement executed by Landlord and Tenant, concurrently herewith.
ARTICLE 3
DEMISE
3.1 Premises. Subject to the terms, covenants and conditions contained
herein, Landlord hereby subleases the Land and leases the Improvements to
Tenant, and Tenant hereby leases from Landlord, the Land and Improvements,
together with all rights, privileges, easements and appurtenances relating to
the Land and Improvements. Tenant agrees that it shall use the Premises in
accordance with all of the terms and conditions of the Ground Lease and shall
comply with all terms and conditions of the Ground Lease applicable to tenant
thereunder.
ARTICLE 4
TERM
4.1 Term. The Term of this Lease is specified in Article 1.
4.2 Holding Over. If Tenant remains in possession of the Premises after
the expiration of the Term without executing a new lease, such holding over
shall be construed as a tenancy from month-to-month, subject to all terms,
covenants and conditions herein contained, and the Base Rent shall be calculated
based upon the Default Rate and shall be required to be paid by Tenant during
such holding over in the same manner as during the Term.
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ARTICLE 5
CONSTRUCTION OF IMPROVEMENTS
5.1 Tenant's Rights to Construct Improvements. All future Improvements
to be constructed on the Premises shall be constructed in accordance with the
terms and conditions of the Construction Management Agreement. Tenant shall have
the right, in accordance with the terms of the Construction Management
Agreement, to require Landlord to pay Advances for the construction of any
future work of improvement on the Premises by Tenant during the Term, the
funding of which by Landlord shall not exceed the aggregate amount of SIXTY FOUR
MILLION and No/100 Dollars ($64,000,000.00).
5.2 Title to and Nature of Improvements. Subject to the provisions of
this Lease and the rights of the ground lessor under the Ground Lease, Tenant
agrees that any and all Improvements of whatever nature at any time constructed,
placed or maintained upon any part of the Land shall be and remain the property
of Landlord. Notwithstanding anything contained herein, Tenant shall retain
ownership and title to all Tenant's Property.
5.3 Lien Waivers. Landlord agrees to execute lien waivers in form and
substance reasonably satisfactory to Landlord in favor of lessors or lenders
leasing, or providing financing for, and of Tenant's Property.
5.4 Alterations. Tenant shall have the right to make alterations to the
Improvements with Landlord's consent, which consent shall not be unreasonably
withheld.
ARTICLE 6
FUNDING
6.1 Request for Construction Funding: Landlord's Obligation to Fund.
During the Interim Period, Tenant shall request Landlord to provide Advances for
the construction of Improvements in accordance with the Construction Management
Agreement and under the terms and conditions of this Lease. Each such request
shall be in writing and shall generally describe the nature of the Advance.
Landlord shall fund Advances requested by Tenant in accordance with the terms of
the Construction Management Agreement. Landlord shall have no obligation to make
any further Advances on or after the Construction Period Expiration Date.
6.2 Exhibit Reflecting Rent Commencement Date. Within thirty (30) days
after the Rent Commencement Date, Landlord and Tenant shall execute the "Rent
Commencement Date Memorandum" in the form attached hereto as Exhibit D.
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ARTICLE 7
RENT
7.1 Base Rent. Commencing upon the Rent Commencement Date and
continuing thereafter throughout the Term, Tenant shall pay Base Rent to
Landlord, or at such other place as Landlord may from time to time instruct.
Tenant shall pay Base Rent by wire transfer. Landlord shall supply Tenant with
such bank account information as Tenant shall require to enable payment by wire
transfer of Federal funds or by ACH transfer to the account described in Section
1.12. Rental payments shall be payable monthly in arrears on the twentieth
(20th) day of each successive month, except that the last installment of Base
Rent shall be payable on the last day of the Term (each such date shall be a
"Rent Payment Date"). No sooner than thirty (30) days or later than ten (10)
days prior to the due date for any installment of Base Rent hereunder, Landlord
shall deliver to Tenant a Notice indicating the exact dollar amount of the Base
Rent that is due on such due date ("Invoice"). If Landlord fails to send the
Invoice, Tenant shall pay the amount shown on the previous month's Invoice.
7.2 Proration. If the Term expires or is otherwise terminated on other
than the twentieth (20th) day of a calendar month, then Base Rent shall be
prorated for the period from the immediately preceding Rent Payment Date until
the termination date on the basis of actual days elapsed and a three hundred
sixty (360) day year.
7.3 No Abatement of Rent. Except as a consequence of a reduction in the
Lease Investment Balance or the terms of Sections 16.1 and 16.2 (Taking) Tenant
shall not be entitled to any abatement, diminution, reduction, setoff or
postponement of Base Rent as a consequence of any inconvenience to, interruption
of, cessation of or loss of Tenant's use or enjoyment of the Premises or as a
result of any reason whatsoever.
7.4 Delinquent Rent. Any Base Rent not paid on the due date shall
accrue interest at the Default Rate from the date such Base Rent was originally
due until the date such Base Rent is paid. All interest accrued on past due Base
Rent shall be due and payable to Landlord at the time the Base Rent is paid, or
upon demand by Landlord, if earlier.
7.5 Additional Rent. Tenant agrees to pay all Additional Rent when it
becomes due and payable under this Lease.
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ARTICLE 8
TAXES
8.1 Real Estate Taxes.
(a) Tenant shall pay, during the Term of this Lease,
directly to the appropriate taxing authority all Real Estate Taxes (as defined
below). If the Term expires or otherwise terminates at any time other than the
beginning or end of a taxable year, Tenant's obligation to pay Real Estate Taxes
shall be prorated on the basis of a 365-day year, so as to include only that
portion of the taxable year which is a part of the Term.
(b) Except to the extent that Real Estate Tax bills and
statements are sent directly to Tenant by the taxing authority, upon receipt by
Landlord of the tax bills or statements, Landlord will use reasonable efforts to
promptly advise Tenant in writing of all Real Estate Taxes and shall deliver
copies of all applicable tax bills or statements to Tenant. Tenant shall pay
directly to the taxing authority all Real Estate Taxes prior to the later of (i)
thirty (30) days after receipt by Tenant from Landlord of a copy of such bills
and statements referred to above, or (ii) five (5) business days prior to
delinquency. As used herein, the term "Real Estate Taxes" shall mean any and all
taxes, governmental fees and similar charges or assessments levied or assessed
against the Improvements and/or the Land including, without limitation, ad
valorem taxes and special assessments applicable to real property; provided,
however, that Real Estate Taxes shall not include any Landlord Taxes (as defined
below). Real Estate Taxes shall also include any and all documentary, transfer,
sales, mortgage, recording or similar taxes imposed on Landlord or Tenant in
connection with any sale of the Premises to a third party in accordance with
this Lease following an Event of Default by Tenant or in a transaction to which
Tenant is a party. As used herein, the term "Landlord Taxes" shall mean any and
all franchise, gains, gift, succession, excess profits, gross receipts, revenue,
estate, rental, income or similar taxes or taxes in lieu thereof imposed upon
Landlord or any party other than Tenant (or an affiliate thereof) and any
withholding tax imposed as a collection device for, in lieu of, or otherwise
related to any of the foregoing without regard to whether such tax is required
to be collected by Tenant and without regard to whether Tenant would be liable
for such withholding tax in the event it failed to so withhold. For purposes of
the foregoing, an income tax shall include, without limitation, any tax imposed
under the United States Internal Revenue Code or ORS Chapters 314 and 317, as
well as any tax which could qualify as an "income tax" under United States
Treasury Regulation Section 1.901-2 (except to the extent any such statute or
regulation is subsequently modified to include a tax or other governmental
charge of a materially different type and nature from the taxes currently
described therein) and any income tax which may be payable under the laws of any
jurisdiction either now or in the future. Real Estate Taxes for any given tax
year shall exclude assessment installments that are not due and payable during
such tax year.
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8.2 Personal Property Taxes. Tenant shall pay directly to the
appropriate taxing authorities prior to delinquency any and all taxes and
assessments levied or assessed during the Term upon or against Tenant's
furniture, equipment, trade fixtures and any other personal property in the
Premises.
8.3 Right to Contest. Tenant shall not be required to pay any Real
Estate Taxes or any other taxes for which Tenant is liable hereunder (including,
without limitation, any taxes for which Tenant is required to indemnify Landlord
under Section 22.1) (including penalties and interest), so long as (i) Tenant
shall contest the same or the validity thereof by appropriate legal proceedings
in such a manner to prevent the tax sale of any portion of the Premises and (ii)
the position to be taken by Tenant pursuant to such contest would have a
realistic possibility of success if litigated. For purposes of this Lease,
Tenant may conclusively establish that a position to be taken in a contest would
have a realistic possibility of success if litigated by providing to Landlord a
letter from counsel stating an opinion to such effect. In the event of any such
contest, Tenant shall, within thirty (30) days after the final determination
thereof, pay and discharge the amounts determined to be due in accordance
therewith and with the provisions of this Lease, together with any penalties,
fines, interest, costs and expenses that may have accrued thereon or that may
have resulted from Tenant's contest. Tenant also shall have a right to contest
any taxes for which it is liable hereunder, but with regard to which the
position to be taken pursuant to such contest would not have a realistic
possibility of success if litigated, provided that Tenant pays such taxes on or
prior to the date upon which such taxes are asserted to be due by the relevant
governmental authority. Notwithstanding the foregoing provisions of this Section
8.3, Tenant shall have an unconditional right to contest (without prior payment)
any taxes imposed by law upon Tenant rather than upon Landlord. Tenant's
decision to pay any taxes prior to contesting its or another party's underlying
liability therefore shall not be deemed to imply or suggest that the position to
be taken in such contest would not have a realistic possibility of success if
litigated. Landlord shall cooperate fully with Tenant in connection with the
exercise of Tenant's right of contest contained herein, and in the event that
applicable law shall require that Landlord, rather than Tenant, pursue legal
proceedings for such contest, Landlord will initiate and pursue such contest
upon Tenant's request and in accordance with Tenant's instructions (including,
without limitation, Tenant's instructions as to the selection of legal counsel
and matters of strategy or settlement); provided, however, that Landlord shall
not be subject to any liability for the payment of any costs or expenses in
connection with any such contest or proceedings, and Tenant will indemnify and
save harmless Landlord from any such costs and expenses (including, without
limitation, reasonable attorneys' fees, costs of court and appraisal costs),
reimbursing Landlord therefor upon demand (or paying such costs and expenses
directly when due, all as directed by Landlord). Tenant shall be entitled to any
refund of any taxes and penalties or interest from any governmental authority to
the extent the refund represents monies paid to the governmental authority by
Tenant or paid by Landlord and reimbursed by Tenant.
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8.4 Additional Charges. All payments made by Tenant under this Lease
shall be made free and clear of, and without reduction or withholding for or on
account of, any present or future taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed pursuant to any Legal Requirement, excluding, however, any
Landlord Taxes (all such nonexcluded taxes, levies, imposts, deductions, charges
or withholdings being hereinafter called "Additional Charges"). Tenant shall be
responsible for the payment of any such Additional Charges; and if any such
Additional Charges are required to be withheld from any amounts payable to
Landlord hereunder, then the amounts so payable to Landlord shall be increased
by an amount ("Additional Amount") necessary to yield to Landlord (after payment
of all Additional Charges) the Base Rent and other amounts payable hereunder at
the rates or in the amounts specified in this Lease. Whenever any Additional
Charges are required to be withheld by Tenant, such Additional Charges shall be
deducted or withheld by Tenant, and shall be paid by Tenant to the appropriate
governmental authority in accordance with applicable Legal Requirements. As
promptly as possible thereafter, Tenant shall send to Landlord for its own
account a copy of an original official receipt (or other evidence of payment)
received by Tenant showing payment thereof. If Tenant is required to pay
Landlord any Additional Amount, Landlord shall use its best efforts (consistent
with its internal policy and legal and regulatory restrictions) to change its
jurisdiction if the making of such a change would avoid the need for, or reduce
to the greatest extent possible the amount of, any such Additional Amount which
may thereafter accrue and would not, in the reasonable judgment of Landlord be
otherwise disadvantageous to Landlord. If Landlord subsequently receives a
refund of any Additional Amounts, or if such Additional Amounts result in a net
benefit to Landlord, the amount of such refund or net benefit shall be paid to
Tenant within 30 days of the receipt of such refund or net benefit; provided,
however, that the payment to Tenant shall not exceed the Additional Amount to
which the refund or net benefit relates. The agreements in this Section 8.4
shall survive the termination of this Lease with respect to any Additional
Charges that become due during the Term.
ARTICLE 9
INSURANCE
9.1 Liability Insurance. At all times during the Term, Tenant shall
obtain at Tenant's sole cost and expense a policy or policies of comprehensive
general liability insurance on an "occurrence" basis against claims for
"personal injury" liability, including bodily injury, death or property damage
liability. The liability insurance policy shall contain coverage limits no less
than the following: (1) One Million Dollars ($1,000,000) per person; (2) One
Million Dollars ($1,000,000) per incident; and (3) One Million Dollars
($1,000,000) for property damage.
9.2 Builders' Risk Insurance. With respect to any Improvements which
may be under construction and not yet covered by insurance under the terms of
Section 9.3,
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Tenant shall maintain or cause to be maintained a policy or policies of
builders' risk insurance in an amount equal to the value upon completion of the
work (exclusive of land, foundation, excavation, grading, landscaping,
architectural and development fees and other items customarily excluded from
such coverage), insuring against the risks customarily insured against under
such insurance, including fire, vandalism, malicious mischief, sprinkler
leakage, lightning, and windstorm.
9.3 All-Risk Insurance. With respect to any completed Improvements or
any other improvement now or hereafter situated on the Land, prior to the
termination of the builders' risk insurance required by Section 9.2, and at all
times thereafter, Tenant shall, at Tenant's sole cost and expense, obtain and
maintain, or cause to be obtained and maintained, (a) a policy or policies of
all-risk insurance covering the Improvements, providing coverage against loss or
damage by fire, vandalism, malicious mischief, sprinkler leakage, lightning,
windstorm, and other insurable perils, as, under good insurance practice, from
time to time are insured against under all-risk coverage for properties of
similar character, age and location in an amount or amounts not less than one
hundred percent (100%) of the then actual replacement cost (exclusive of land,
foundation, excavations, grading, landscaping, architectural and development
fees and other items customarily excluded from such coverage and without any
deduction for depreciation); (b) standard earthquake coverage, with a deductible
not to exceed ten percent (10%) of the insured amount; and (c) standard flood
coverage. Provided, however Tenant may elect not to obtain earthquake insurance,
in which case Tenant shall covenant to pay the cost of repairing damage to the
Improvements caused by an earthquake.
9.4 General Requirements. The insurance required under this Article 9
may be furnished under a "primary" policy and an "umbrella" policy or policies.
Landlord shall be named as an additional insured under Tenant's policy of
insurance required under Section 9.1; and such policies shall contain an
endorsement for cross-liability coverage. Tenant shall furnish Landlord with
certificates from Tenant's insurers with respect to the insurance required to be
carried hereunder on or before the date such insurance is required to be
carried. The certificates shall state that such insurance is in full force and
effect and that coverage will not be reduced in any amount or otherwise limited
or cancelled without thirty (30) days' prior written notice to Landlord. Renewal
certificates shall be furnished to Landlord not less than thirty (30) days prior
to the expiration of each such policy, provided, however, that Tenant shall not
be required to provide Landlord with such renewal certificates prior to the
expiration of each such policy so long as (i) Tenant provides Landlord with
reasonable assurances within ten (10) days prior to the expiration of each such
policy that there will be no lapse in the insurance coverage provided under such
policy, and (ii) Tenant provides Landlord with such renewal certificates within
ten (10) days following the expiration of each such policy. Any blanket
insurance policy or policies that insure Tenant against the risks and for the
amounts herein specified shall be deemed to satisfy the obligation of Tenant
hereunder, provided that any such policy of blanket insurance shall specify the
amount of the total insurance allocated to the risks
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required to be insured hereunder and such allocated amount meets the
requirements of this Article 9. All insurance required by this Article 9 shall
be with an insurance company licensed to do business in the State of Oregon with
a general policyholder's rating, as rated by the most current available "Bests"
Insurance Reports, and no less than A/III and non-contributing.
9.5 Waiver of Subrogation. Notwithstanding anything to the contrary
contained herein, to the extent permitted by law and so long as any insurance
coverage maintained by Tenant is not diminished by reason thereof, Tenant hereby
(a) releases and waives any rights it may have against Landlord and its
officers, agents and employees on account of any loss or damages occasioned to
Tenant, its property or the Premises, and arising from any risk covered by any
fire and extended coverage insurance maintained by Tenant, whether or not due to
the negligence of Landlord, its agents, employees, contractors, licensees,
invitees or other persons, and (b) waives on behalf of any insurer providing
such insurance to Tenant any right of subrogation that any such insurer may have
or acquire against Landlord or such persons by virtue of payment of any loss
under such insurance. Tenant shall use its commercially reasonable efforts to
cause its insurance policies to contain a waiver of subrogation clauses in
accordance with the foregoing.
9.6 Indemnity. After receiving written notice from Landlord of a claim
(failure to give such notice shall not relieve Tenant of its obligations
hereunder unless as a direct result of failure to give such notice), Tenant
shall protect, defend, indemnify, hold and save Landlord harmless from and
against any and all losses, costs, liabilities or damages (including reasonable
attorneys' fees and disbursements and court costs) arising by reason of: (i) any
and all injury or death of persons or damage to property against which Tenant is
obligated to maintain insurance for the benefit of Landlord pursuant to this
Article 9; (ii) the failure to obtain the waiver of subrogation clause required
by Section 9.5 hereof where such clause could have been obtained through the
exercise of Tenant's commercially reasonable efforts; or (iii) the invalidation
of such insurance policy required to be obtained by Tenant hereunder by Tenant's
insurer; provided this subsection (iii) shall not apply to the extent Landlord
actually receives insurance for the aforesaid losses, costs, liabilities or
damages (including reasonable attorneys' fees and disbursements and court costs
but excluding costs, fees or premiums paid by Landlord in connection with such
insurance) or to the extent recovery of insurance proceeds is prevented by
Landlord's gross negligence. Tenant's duty to indemnify Landlord under this
Section 9.6 shall survive the expiration or earlier termination of this Lease
with respect to events occurring during the Term. Landlord agrees to cooperate
with Tenant in the defense of any claim undertaken by Tenant pursuant to this
Section.
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ARTICLE 10
USE
10.1 Use.
(a) Permitted. Tenant may use the Premises for any purpose
permitted under the Ground Lease.
(b) Environmental Compliance.
1) Defined Terms. The term "Applicable Environmental
Laws" shall mean any applicable laws, regulations or ordinances pertaining to
health or the environment, including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986 or otherwise (as
amended, hereinafter called "CERCLA"), the Resource Conservation and Recovery
Act of 1976, as amended by the Used Oil Recycling Act of 1980, the Solid Waste
Disposal Act Amendments of 1980, the Hazardous and Solid Waste Amendments of
1984 or otherwise (as amended, hereinafter called "RCRA"), and Oregon Toxics Use
Reduction and Hazardous Waste Reduction Act (ORS Chapter 465), Oregon Hazardous
Waste and Materials II (ORS Chapter 466), Oregon Environmental Quality Generally
(ORS Chapter 468), Oregon Air Quality (ORS Chapter 468A), and Oregon Water
Quality (ORS Chapter 468B). The terms "hazardous substance" and "release" as
used in this Lease shall have the meanings specified in CERCLA, and the terms
"solid waste" and "disposal" (or "disposed") shall have the meanings specified
in RCRA; provided, in the event either CERCLA or RCRA is amended or superseded
by other laws so as to broaden the meaning of any term defined thereby, such
broader meaning shall apply subsequent to the effective date of such amendment
or other laws: and, provided further, to the extent that the laws of the State
of Oregon establish a meaning for "hazardous substance", "release", "solid
waste", or "disposal" which is broader than that specified in either CERCLA or
RCRA, such broader meaning shall apply.
2) Tenant's Covenants. Tenant will not cause or
permit the Premises to be in violation of, or do anything or permit anything to
be done which subjects Landlord, Tenant or the Premises to any remedial
obligations relating to the Premises under or which creates a valid claim or
cause of action against Landlord, Tenant (which relates to the Premises) or the
Premises under, any Applicable Environmental Laws, including, without
limitation, CERCLA, RCRA, and ORS Chapter 465, assuming disclosure to the
applicable governmental authorities of all relevant facts, conditions and
circumstances, if any, pertaining to the Premises and Tenant will promptly
notify Landlord in writing of any existing, pending or threatened investigation,
claim or inquiry of which Tenant has knowledge by any governmental authority in
connection with any Applicable Environmental Laws. Tenant shall obtain any
permits, licenses or similar authorizations
18
to construct, occupy, operate or use any Improvements, fixtures and equipment at
any time located on the Premises by reason of any Applicable Environmental Laws.
Tenant will not use the Premises in a manner which will result in the disposal
or other release of any hazardous substance or solid waste on or to the Premises
in violation of Applicable Environmental Law and covenants and agrees to keep or
cause the Premises to be kept free of any hazardous substance, solid waste or
environmental contaminants (including, without limitation, arsenic in soil and
friable asbestos and any substance containing asbestos deemed hazardous by any
Applicable Environmental Law) to the extent required by Applicable Environmental
Law, and to remove the amounts of the same (or if removal is prohibited by law,
to take whatever action is required by law) promptly upon discovery at Tenant's
sole expense to the extent required by Applicable Environmental Law. Tenant
shall promptly notify Landlord in writing of any disposal or other release of
any hazardous substance, environmental contaminants or solid wastes on or to the
Premises or the Improvements in violation of Applicable Environmental Law. In
the event Tenant fails to comply with or perform any of the foregoing covenants
and obligations, after thirty (30) days' prior written Notice to Tenant,
Landlord may, but shall be under no obligation to, cause the Premises to be
freed from such hazardous substance, solid waste or environmental contaminants
(or if removal is prohibited by law, to take whatever action is required by law)
to the extent required by Applicable Environmental Law and the reasonable cost
of the removal or such other action shall be a demand obligation owing by Tenant
to Landlord pursuant to this Lease. Notwithstanding the foregoing, Landlord
shall have no right to cause the removal of such materials and no Event of
Default (or default) shall be deemed to have occurred under this Sublease so
long as Tenant both: (1) is diligently and in good faith proceeding to comply
with Tenant's obligation to remove such amounts of such materials; and (2) has
the financial ability to so comply. Subject to the foregoing, Tenant grants to
Landlord and Landlord's agents and employees access to the Premises, and the
license to remove such hazardous substance, solid waste or environmental
contaminants (or if removal is prohibited by law, to take whatever action is
required by law to the extent required by Applicable Environmental Law); and
except for Landlord's willful misconduct or gross negligence, agrees to
indemnify and save Landlord harmless from all reasonable costs and expenses
involved and from all claims (including consequential damages) asserted or
proven against Landlord by any party in connection therewith. Upon Landlord's
reasonable request for "good cause" (defined below), at any time and from time
to time during the Term, Tenant will provide at Tenant's sole expense an
inspection or audit of the Premises from an engineering or consulting firm
approved by Landlord, indicating the presence or absence of any hazardous
substance, solid waste or environmental contaminants located on the Premises. If
Tenant fails to provide same after sixty (60) days' notice, Landlord may order
same, and Tenant grants to Landlord and Landlord's employees and agents access
to the Premises and a license to undertake any testing reasonably required to
obtain such inspection or audit. The reasonable cost of obtaining such
inspection or audit and any expenses incurred by Landlord in connection
therewith, shall be a demand obligation owing by Tenant to Landlord pursuant to
this Lease. For purposes of this Section 10.1(b)(2), "good cause"
19
shall mean that Landlord shall have reasonable grounds to believe that release
or disposal of hazardous substances or solid wastes in violation of Applicable
Environmental Law has occurred on the Premises.
(c) Compliance With Legal Requirements. Tenant shall at
all-times comply with all material Legal Requirements applicable to the Land or
any improvements (including the Improvements) now or hereafter situated on the
Land and/or the use thereof.
10.2 Contest of Legal Requirements. Tenant shall have the right at its
sole cost and expense to contest the validity of any Legal Requirements
applicable to the Premises by appropriate proceedings diligently conducted in
good faith; and upon the request of Tenant and at Tenant's sole cost and
expense, Landlord will join and cooperate with Tenant in such proceedings.
Subject to Section 8.3, and any other provision of this Lease to the contrary
notwithstanding, Tenant's right to contest Legal Requirements must be exercised
in such a manner as to avoid any exposure of the Premises or any part thereof to
foreclosure or execution sale or exposure of Landlord to civil or criminal
penalties arising from Tenant's non-compliance with such Legal Requirements.
Tenant shall defend and indemnify Landlord against, and hold Landlord harmless
from, any and all liability, loss, cost, damage, injury or expense (including,
without limitation, attorneys' fees and costs) which Landlord may sustain or
suffer by reason of Tenant's failure or delay in complying with, or Tenant's
contest of, any such Legal Requirements (or Landlord's contest, if requested in
writing by Tenant), and Tenant's duty to indemnify Landlord under this Section
10.2 shall survive the expiration or earlier termination of this Lease.
ARTICLE 11
UTILITIES AND SERVICES
11.1 Services to the Premises. At Tenant's sole cost and expense,
Tenant shall make its own arrangements for the provision of all utilities and
services to be provided to or consumed on the Premises, including, without
limitation, air conditioning and ventilation, service contracts, heating,
electric power, telephone, water (both domestic and fire protection), sanitary
sewer, storm drain, natural gas and janitorial services, including for the
installation, maintenance and repair of service lines and meters to measure
Tenant's consumption of such utilities.
ARTICLE 12
MAINTENANCE AND REPAIRS; SURRENDER OF THE PREMISES
12.1 Tenant Obligations. Landlord shall have no obligation to maintain
the Premises or the Improvements. Tenant shall at all times and at Tenants' sole
cost and expense maintain the Premises and Improvements in good repair, normal
wear and tear and casualty excepted.
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12.2 Surrender of the Premises. Except as provided in Section 20.1
below, upon the expiration or earlier termination of the Term, Tenant shall
surrender the Premises to Landlord in its then "AS-IS" condition, including,
without limitation, any condition resulting from: (i) wear and tear; (ii)
obsolescence and damage by fire or other casualty, act of God or the elements
(subject to the terms of Article 17); (iii) damage that is caused by Landlord,
its agents, employees or contractors; and (iv) any improvements, alterations,
additions, repairs, replacements, or decorations in, to or of the Premises or on
the Land which are not Improvements but which Tenant may elect to remain on the
Land or the Premises. Title to all improvements, furniture, furnishings,
fixtures, trade fixtures and personal property of Tenant which have not been
funded by Landlord pursuant to the terms of Article 6 and located in or upon the
Premises or the Land, whether or not affixed to the realty, shall be and remain
in Tenant, and at any time during the Term of this Lease, the same may be
removed by Tenant, or, at Tenant's abandonment or written election, surrendered
with the Premises, in which event title to such surrendered property shall, if
Landlord so elects in Landlord's sole discretion, be deemed transferred to
Landlord. Any of such property that is not removed from the Premises or the
Improvements on or prior to the expiration or earlier termination of this Lease
shall be considered abandoned and Landlord may deal with it as Landlord elects.
ARTICLE 13
LIENS
13.1 Except for claims that Tenant is contesting in good faith in such
manner as to avoid any exposure of the Premises or any part thereof to
foreclosure or execution sale, Tenant shall promptly pay and discharge all
claims for work or labor done, supplies furnished or services rendered to the
Premises, and shall keep the Premises free and clear of all mechanics' and
materialmen's liens in connection therewith.
ARTICLE 14
ASSIGNMENT BY LANDLORD
14.1 Further Mortgages or Encumbrances by Landlord. Except for the SBLF
Mortgage (which is hereby approved by Tenant), Landlord shall not cause or
create any mortgages, deeds of trust, encumbrances or exception to exist with
respect to the Premises at any time.
14.2 Landlord's Right to Sell. Landlord may not transfer all or any
portion of its right, title and interest in the Premises; provided, however that
nothing contained in this Lease shall be deemed in any way to limit, restrict or
otherwise affect the right of Landlord at any time and from time to time to sell
or transfer all but not less than all of its right, title and estate in the
Premises and the Transaction Documents to: (1) a Landlord Affiliate or another
financial institution (excluding, however, a non-substantive entity that is
formed specifically for purposes of owning the Premises subject to this Lease
21
and has no other substantive operations) with a capitalization in excess of
$50,000,000; or (2) if an Event of Default at the time of such sale or transfer,
to any Entity. Any sale or transfer by Landlord whatsoever shall by its express
terms recognize and confirm the right of possession of Tenant to the Premises
and Tenant's other rights arising out of this Lease shall not be affected or
disturbed in any way by any such sale, transfer, assignment or conveyance
(except for any disturbance resulting from a foreclosure sale conducted pursuant
to the laws of the State of Oregon at which independent third party bids were
permitted pursuant to the SBLF Mortgage), and any transferee shall expressly
assume in writing all obligations of Landlord to be performed following the date
of transfer.
14.3 Transfer of Funds and Property. At each time Landlord sells,
assigns, transfers or conveys the entire right, title and estate of Landlord in
the Premises and in this Lease, Landlord shall turn over to the transferee any
funds or other property then held by Landlord under this Lease and thereupon all
the liabilities and obligations on the part of the Landlord under this Lease
arising after the effective date of such sale, assignment, transfer or
conveyance shall terminate as to the transferor and be binding upon the
transferee.
ARTICLE 15
ASSIGNMENT AND SUBLEASING
15.1 Right to Assign.
(a) Tenant's Right. Provided that Tenant is not in Default
under this Lease or if Tenant is in Default, provided that Tenant cures the
Default in connection with the assignment, Tenant shall have the right, at any
time and from time to time during the Term, to assign all or any portion of its
right, title and estate in the Premises and in this Lease without approval by
Landlord. Any such assignee, immediate or remote, shall have the same right of
assignment. Any such assignment shall be evidenced by a written instrument,
properly executed and acknowledged by all parties thereto and, at Tenant's
election, duly recorded in the Official Records, wherein and whereby the
assignee assumes all of the obligations of Tenant under this Lease.
Notwithstanding any such assignment and assumption or any sublease permitted
under Section 15.2 hereof, Tenant shall remain primarily liable for all
obligations and liabilities on the part of Tenant theretofore or thereafter
arising under this Lease.
(b) Notice. Tenant shall, promptly after execution of each
assignment, notify Landlord of the name and mailing address of the assignee and
shall, on demand, permit Landlord to examine and copy the assignment agreement.
15.2 Right to Sublet.
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(a) Tenant's Right. Tenant shall have the right, at any time
and from time to time during the Term, to sublet all or any portion of the
Premises and to extend, modify or renew any sublease without the approval of
Landlord. Without the limiting the generality of the foregoing, and not
withstanding anything contained in Section 15.3, Tenant shall have the right to
sublet all or any portion of the Premises to the State of Oregon (or any
political subdivision thereof) in connection with any transaction resulting in
the issuance of municipal financing or the obtaining of an exemption from the
payment of real property taxes; and further provided that in connection with any
such transaction, the State of Oregon (or political subdivision thereof) may
lease such portion of the Premises back to Tenant without the necessity of first
obtaining the consent of Landlord.
(b) Notice. Tenant shall, promptly after execution of each
sublease, notify Landlord of the name and mailing address of the subtenant and
shall, on demand, permit Landlord to examine and copy the sublease.
15.3 Mortgage by Tenant. Tenant shall not have the right to mortgage,
pledge or otherwise encumber all or any portion of the right, title and estate
of Tenant in the Premises or in this Lease, without the consent of Landlord.
ARTICLE 16
EMINENT DOMAIN
16.1 Total or Substantial Taking. If title or access is taken for any
public or quasi-public use, or under any statute or by right of condemnation or
eminent domain, or by sale in lieu thereof (a "Taking") with respect to all of
the Premises, or if title to so much of the Premises or access thereto is Taken,
or if the Premises or access thereto is damaged, blocked or impaired by the
Taking, so that, in Tenant's reasonable discretion, the Premises or access
thereto, even after a reasonable amount of reconstruction thereof, will no
longer be suitable for construction of Improvements for the conduct of Tenant's
(and/or Tenant's subtenants') business, then in any such event, this Lease shall
terminate on the date of such Taking.
16.2 Partial Taking. If any part of the Premises, or access thereto,
shall be Taken, and the Premises or the remaining part thereof and access
thereto will be, in Tenant's reasonable discretion, suitable for construction of
Improvements for the conduct of Tenant's (and/or Tenant's subtenants') business
in a manner consistent with the conduct of such business prior to such Taking,
all of the terms, covenants and conditions of this Lease shall continue, except
that Base Rent shall be adjusted to reflect the decreased Lease Investment
Balance remaining after application thereto of the award made to Landlord for
such Taking.
16.3 Temporary Taking. If the whole or any part of the Premises is
Taken for temporary use or occupancy, this Lease shall not terminate by reason
thereof and
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Tenant shall continue to pay, in the manner and at the times herein specified,
the full amount of the Base Rent payable by Tenant hereunder, and, except only
to the extent that Tenant may be prevented from so doing by reason of such
Taking, Tenant shall continue to perform and observe all of the other terms,
covenants and conditions hereof on the part of Tenant to be performed and
observed, as though the Taking had not occurred. In the event of any such
temporary Taking, Tenant shall be entitled to receive the entire amount of the
award made for the Taking, whether paid by way of damages, rent or otherwise. If
the temporary Taking is for a term in excess of thirty (30) days, then the
Taking shall be treated as a permanent Taking and be governed by Sections 16.1
or 16.2, as applicable.
16.4 Damages. The compensation attributable to the Premises (in each
case the compensation or value shall be determined as of the date of the Taking)
awarded or paid upon any Taking (other than a temporary Taking, which shall be
governed by Section 16.3), whether awarded to Landlord, Tenant, or both of them,
shall be held by Landlord to be applied against the Lease Investment Balance,
including all accrued and unpaid Base Rent and Additional Rent. Any compensation
in excess of the Lease Investment Balance plus all accrued and unpaid Base Rent
and Additional Rent shall be paid to Tenant.
16.5 Notice and Execution. Immediately upon service of process upon
Landlord or Tenant in connection with any Taking relating to the Premises or any
portion thereof or access thereto, each party shall give the other Notice
thereof. Each party agrees to execute and deliver to the other all instruments
that may be required to effectuate the provisions of this Article 16. Tenant
reserves the right to appear in and to contest any proceedings in connection
with any such Taking. Tenant shall immediately reimburse Landlord on demand for
all reasonable out-of-pocket costs and expenses incurred by Landlord in
complying with Landlord's obligations under this Section 16.5.
ARTICLE 17
DAMAGE OR DESTRUCTION
17.1 Casualty. If any of the improvements (including the Improvements)
now or hereafter situated on the Land are damaged or destroyed by fire or other
casualty, except as provided to the contrary in Section 17.2, this Lease shall
continue in full force and effect without any abatement or reduction in Base
Rent, and Tenant, at Tenant's election, shall either (a) restore the
improvements substantially to their condition prior to the damage or
destruction, or such other condition as Tenant shall elect, subject to
Landlord's approval in accordance with the terms of paragraph 12 of the
Construction Management Agreement, which shall not be unreasonably withheld, or
(b) not restore the improvements, but perform, or cause to be performed, at
Tenant's sole cost and expense, any work or service required by any Legal
Requirement for the protection of persons or property from any risk, or for the
abatement of any nuisance, created by or arising from the casualty or the damage
or destruction caused thereby.
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17.2 Termination of Lease. In the case of: (a) any damage or casualty
of the Building, which in the good faith judgment of Tenant's Board of Directors
would render the Building either unsuitable or uneconomic for restoration or
continued use by Tenant; (b) the damage or destruction of all or substantially
all (as determined in good faith by Tenant's Board of Directors) of the
Building; or (c) the damage or destruction of the Building where restoration
cannot (as determined in good faith by Tenant's Board of Directors) reasonably
be completed either within 365 days or prior to the expiration of the Term, then
Tenant may elect to terminate this Lease. In the event Tenant terminates the
Lease pursuant to the preceding sentence, Tenant shall purchase Landlord's
interest in the Premises for a purchase price equal to the Purchase Price for
the Premises as such Purchase Price is defined in Section 20.1. The purchase of
Landlord's interest in the Premises shall be pursuant to the terms of Section
20.1, as applicable to the Premises. Upon the completion of such purchase, this
Lease and all obligations hereunder in respect of the Premises shall terminate.
17.3 Insurance Proceeds. In the event of any fire or other casualty,
the proceeds of any insurance policies maintained by Tenant pursuant to Section
9.2 or 9.3 shall be held, applied and dealt with as follows:
(a) Any proceeds (per occurrence) of such policies
attributable to the Improvements below the amount of Five Hundred Thousand
Dollars ($500,000) or any proceeds directly attributable to improvements
constructed on the Property by Tenant solely with its own funds shall be paid
directly to Tenant and applied and used as Tenant may direct in its sole
discretion for any construction, restoration or reconstruction purposes in
connection with any improvements located on the Land which were destroyed,
damaged or affected by such casualty. Any portion of such proceeds which Tenant
does not want to use (subject to the terms of Section 17.3(c)) for any
construction, restoration or reconstruction shall be paid as follows (the order
of payment as set forth below shall be the "Distribution Formula"): (1) to
Landlord (but only to the extent of the then-existing Lease Investment Balance);
and (2) with any remaining excess to be paid to Tenant.
(b) Any proceeds (per occurrence) of such policies
attributable to the Improvements greater than Five Hundred Thousand Dollars
($500,000) shall be paid to an escrow agent ("Escrow Agent") mutually agreeable
to the parties (but such escrow agent shall not be a party which is related to
or affiliated with either of the parties to this Lease, but shall be bound by
the terms of this Article 17). Such proceeds shall be invested by the Escrow
Agent as Tenant may direct (provided, however, that such proceeds may not be
invested in any securities or any debt obligations issued by Tenant). Such
proceeds shall be paid by the Escrow Agent to Tenant (or to third parties as
Tenant may direct), as Tenant may direct from time to time as restoration,
construction or rebuilding progresses to pay the cost of any restoration,
construction or rebuilding which Tenant elects to take place on the Land or any
Improvements located upon the Land, so long as Landlord reasonably determines
that the following conditions are satisfied at the time of such request
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for payment by Tenant: (i) the sum requested has been paid or is then due and
payable or will become due and payable within thirty (30) days; (ii) Tenant has
the financial ability (taking into account the insurance proceeds held by the
Escrow Agent) to complete the restoration, construction or rebuilding which
Tenant has elected to perform; (iii) Landlord has approved the plans, if any,
relating to the restoration of Improvements; and (iv) in Landlord's reasonable
judgment, such restoration work which Tenant desires to perform in connection
with the Improvements can be completed prior to the expiration of the Term.
Landlord shall promptly upon request instruct the Escrow Agent to make the
payments requested by Tenant unless one of the four (4) conditions described
above is not satisfied at the time of such request. Any excess insurance
proceeds existing after either Tenant's completion of the restoration,
construction or rebuilding which Tenant elects to perform or Tenant's failure to
comply with the funding condition described in subitems (i), (ii), (iii) and
(iv) immediately above in this Section 17.3(b), shall be paid pursuant to the
Distribution Formula. If Tenant elects to terminate this Lease, Tenant may use
any insurance proceeds to pay the Purchase Price described in Section 17.2, and
all rights of Landlord in insurance proceeds not used to pay the Purchase Price
shall be assigned to Tenant by Landlord at the time Tenant purchases Landlord's
interest in the Premises.
(c) If either: (1) Tenant has not delivered written notice
to Landlord within ninety (90) days after reaching final written settlement with
all insurance companies regarding the amount of proceeds to be paid for the
casualty in question, pursuant to which notice Tenant elects to either exercise
some or all of its termination rights under Section 20.2 and/or to fully or
partially repair or restore pursuant to Section 17.1; or (2) Landlord reasonably
believes that Tenant has abandoned reconstruction or restoration work which
Tenant may have elected to perform (and Tenant shall have failed to diligently
recommence reconstruction or restoration work which Tenant is then able to
perform within thirty (30) days after Tenant's receipt from Landlord of a Notice
of Landlord's belief of Tenant's abandonment of the reconstruction or
restoration work); then, in either case, the proceeds attributable to the
Improvements shall be paid pursuant to the Distribution Formula.
(d) Any insurance proceeds paid to Landlord under this
Article 17 shall reduce the Lease Investment Balance by a like amount.
ARTICLE 18
QUIET ENJOYMENT
18.1 Quiet Enjoyment. Landlord covenants to secure to Tenant the quiet
possession of the Premises for the full Term against all persons claiming the
same, by, through or in the right of Landlord, subject to Landlord's rights and
remedies under Article 9 upon an Event of Default by Tenant. The existence of
any Permitted Title Exceptions shall not be deemed to constitute a breach of
Landlord's obligations hereunder.
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Tenant shall, immediately upon demand, reimburse Landlord for all reasonable
costs, expenses and damages incurred or paid by Landlord in the performance of
Landlord's obligations under this Article 18 (except for any costs, expenses or
damages arising from any Landlord Liens or Landlord's willful breach of this
Lease).
ARTICLE 19
DEFAULT
19.1 Default. Each of the following events shall constitute an event of
default ("Event of Default") by Tenant:
(a) Failure to Pay Base Rent. Tenant's failure to pay any
Base Rent within five (5) days after the due date.
(b) Failure to Pay Additional Rent. Tenant's failure to pay
any Additional Rent which is due to Landlord within five (5) days after the due
date under this Lease (which due date shall be the date of Tenant's receipt of
Notice from Landlord that such Additional Rent is due).
(c) Failure to Carry Insurance. Tenant's failure to carry
any policy of insurance required by Article 9, and Tenant shall not cure such
failure prior to ten (10) days after written notice thereof is sent to Tenant.
If such failure is susceptible of cure but cannot with reasonable diligence be
cured within such ten day period, and if Tenant shall promptly have commenced to
cure the same and shall thereafter prosecute the curing thereof with reasonable
diligence, the period within which such failure may be cured shall be extended
for such further period (not to exceed an additional ten days beyond the initial
ten days cure period) as shall be reasonably necessary for the curing thereof.
(d) Insolvency. Subject to Section 19.2, the occurrence of:
(i) an assignment by Tenant for the benefit of creditors generally; or (ii) the
filing of a voluntary or involuntary petition by or against Tenant under any
present or future applicable federal, state or other statute or law having for
its purpose the adjudication of Tenant as a bankrupt; (iii) the appointment of a
receiver, liquidator or trustee for all or a substantial portion of the Premises
by reason of the insolvency or alleged insolvency of Tenant; or (iv) the taking
of possession by any department of city, county, state or federal government, or
any officer thereof duly authorized, of all or a substantial portion of the
Premises by reason of the insolvency or alleged insolvency of Tenant; and
Tenant's failure to timely give any Notice it is permitted to give pursuant to
Section 19.2 (or, in the event Tenant gives timely Notice and pursues a contest
under Section 19.2, Tenant's failure to finally prevail in the contest).
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(e) Failure to Replenish Under Pledge Agreement. Tenant's
failure to replenish the collateral under the Pledge Agreement (as defined in
Section 2.31) after the notice and cure periods provided in the Pledge
Agreement.
(f) Breach of Construction Management Agreement. A material
breach by Tenant of its obligations under the Construction Management Agreement,
and Tenant shall not cure such failure prior to ten (10) days after written
notice thereof is sent to Tenant. If such failure is susceptible of cure but
cannot with reasonable diligence be cured within such ten day period, and if
Tenant shall promptly have commenced to cure the same and shall thereafter
prosecute the curing thereof with reasonable diligence, the period within which
such failure may be cured shall be extended for such further period (not to
exceed an additional ten days beyond the initial ten days cure period) as shall
be reasonably necessary for the curing thereof.
(g) Breach of Financial Covenants. Tenant's failure, as of
the end of each fiscal quarter of Tenant, during the Term of this Lease to
maintain a tangible net worth of not less than $224,000,000.00 or to comply with
the financial covenants set forth in Section 21.21 below, provided, however,
that with respect to compliance with the financial covenants set forth in
Section 21.21, Tenant shall not be in default unless it has received written
notice from Landlord of its failure to deliver the required statement within the
indicated period of time and has failed to cure such default within five (5)
days after receipt of such notice.
(h) Default in Payment for other Credit Facility. Tenant's
failure to make any payment required of Tenant in connection with any other
credit facility of Tenant of $1,000,000 or more, which payment default is not
cured within any applicable notice and cure period provided by such credit
facility.
(i) Default in Payment of Lease Investment Balance. Failure
of Tenant to pay to Landlord the Lease Investment Balance at the end of the Term
or upon an Event of Default, unless Tenant has elected its option to purchase or
terminate under Article 20 obligations thereunder.
19.2 Contest by Tenant. If upon the filing of any involuntary petition
of the type described in Section 19.1(d) or upon the appointment of a receiver,
other than a receiver appointed in any voluntary proceeding referred to in
Section 19.1(d), or the taking of possession of all or a substantial portion of
the Premises by any department of the city, county, state or federal government,
or any officer thereof duly authorized, by reason of the alleged insolvency of
Tenant without the consent or over the objection of Tenant, should Tenant desire
to contest the same in good faith, Tenant shall, within ninety (90) days after
the filing of the petition or after the appointment or taking of possession,
give Notice to Landlord that Tenant proposes to make the contest, and the same
shall not constitute an Event of Default so long as Tenant shall prosecute the
proceedings with due
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diligence and no part of the Premises shall be exposed to sale by reason of the
continuance of the contest.
19.3 Landlord's Remedies: Landlord shall have the remedies specified
below:
(a) Continue Lease. In connection with an Event of Default,
Landlord shall have the right to enforce, by suit or otherwise, all other
covenants and conditions hereof to be performed or complied with by Tenant and
to exercise all other remedies permitted under Oregon law or any amendments
thereof. Upon application by Landlord, a receiver may be appointed to take
possession of the Premises and exercise all rights granted to Landlord as set
forth in this Section 19.3.
(b) Terminate Lease. In connection with an Event of Default,
Landlord may terminate this Lease, by giving Tenant Notice thereof, at any time
after the occurrence of such Event of Default and whether or not Landlord has
also exercised any right under Section 19.2. In such event Tenant shall be
obligated to purchase the Premises for an amount equal to the Purchase Price
described in the Purchase Option contained in Section 20.1 below (that is, all
accrued Base Rent, Additional Rent and the Lease Investment Balance). Landlord
shall also have its other remedies at law (including its rights under the SBLF
Deed of Trust), provided, however, that Tenant's obligation to purchase the
Premises pursuant to Section 20.3 shall survive any termination of this Lease up
through the date of foreclosure sale under the SBLF Mortgage. Notwithstanding
the foregoing, after an Event of Default, Landlord shall first proceed with its
remedies under the Pledge Agreement prior to selling the Premises at a
foreclosure sale pursuant to the SBLF Deed of Trust.
(c) Landlord's Continuing Obligation to Sell. Except in the
case of a foreclosure under the SBLF Deed of Trust, in the event Landlord
obtains possession of the Premises pursuant to the terms of this Lease (because
of Tenant's default, Lease expiration, or otherwise), Landlord shall be under a
continuing obligation to use its commercially reasonable efforts to sell the
Premises to one or more unrelated third parties; provided, however, that
Landlord shall not be required to sell or attempt to sell any portion of the
Premises (i) in a manner, or under circumstances, that could materially impair
Landlord's ability to enforce any of its rights or remedies under this Lease (as
determined in Landlord's sole discretion exercised in good faith) or (ii) at a
time when market conditions render it inadvisable to sell or attempt to sell the
Premises (as determined in Landlord's sole discretion exercised in good faith).
Upon the occurrence of any such sale Landlord shall be obligated to pay to
Tenant any excess of the amount realized by Landlord in connection with such
sale over the Purchase Price (defined below). For purposes of the preceding
sentence, the amount realized by Landlord upon a sale of the Premises shall be
net of Landlord's sale expenses and other expenses incurred by Landlord to
consummate such sale. Landlord's obligation to pay such excess to Tenant
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shall survive any termination of this Lease. Tenant agrees that the Landlord
will be deemed to be acting in good faith if it refuses to sell its interest for
less than the excess of the Lease Investment Balance over the Guaranteed
Residual Value.
19.4 No Waiver. No failure by Landlord or Tenant to insist upon the
strict performance of any term, covenant or condition of this Lease or to
exercise any right or remedy consequent upon a breach thereof and no acceptance
of full or partial Rent during the continuance of any breach shall constitute a
waiver of any such breach or of the term, covenant, or condition. No term,
covenant or condition of this Lease to be performed or complied with by Tenant
or Landlord, and no breach thereof, shall be waived, terminated, altered or
modified except by a written instrument executed by Landlord and Tenant. No
waiver of any breach shall affect or alter this Lease, but each and every term,
covenant, and condition of this Lease shall continue in full force and effect
with respect to any other then existing subsequent breach thereof.
19.5 Effect of Assignment. Notwithstanding an Entity's prior assignment
or transfer of its interest as Tenant under this Lease, so long as Landlord has
been given Notice of such assignment pursuant to Sections 15.1 and 21.3,
Landlord shall give such Entity copies of all Notices required by this Article
19 in connection with any Event of Default, and such Entity shall have the
period granted hereunder to Tenant to cure such Event of Default, unless such
Entity shall have been released from all obligations arising under this Lease.
Landlord may not assert any rights against such Entity in the absence of such
Notice and opportunity to cure, so long as Landlord has been given Notice of
such assignment pursuant to Sections 15.1 and 21.3.
19.6 Landlord Cure Right. If Tenant fails to perform any covenant or
agreement to be performed by Tenant under this Lease, and if the failure or
default continues for thirty (30) days after Notice to Tenant (except for
emergencies and except for payment of any lien or encumbrance threatening the
imminent sale of the Premises or any portion thereof, in which case payment or
cure may be made as soon as necessary to minimize the damage to person or
property caused by such emergency or to prevent any such sale), Landlord may,
but shall have no obligation to, pay the same and cure such default on behalf of
and at the expense of Tenant and do all reasonably necessary work and make all
reasonably necessary payments in connection therewith including, but not limited
to, the payment of reasonable attorneys' fees and disbursements incurred by
Landlord. Notwithstanding the foregoing, Landlord shall have no right to cure
any such failure to perform by Tenant so long as Tenant: (1) is diligently and
in good faith attempting to cure such matter and prosecuting such cure to
completion; (2) has the financial ability to so comply; and (3) commenced cure
of such matter within thirty (30) days after Tenant's receipt of Notice thereof
from Landlord. Failure by Tenant to comply with the above shall allow Landlord
to commence in a reasonable and customary manner and in good faith to attempt to
cure such matter. Upon demand, Tenant shall reimburse
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Landlord for the reasonable amount so paid, together with interest at the
Default Rate from the date incurred until the date repaid.
ARTICLE 20
TENANT'S OPTION TO PURCHASE OR TERMINATE
20.1 Option To Purchase Premises.
(a) Purchase Option. At any time during the Term, Tenant
shall have the option ("Purchase Option") to purchase all of the then-existing
Premises. The purchase price ("Purchase Price") for the Premises shall be the
sum of accrued and unpaid Base Rent, any accrued and unpaid Additional Rent,
plus the Lease Investment Balance.
(b) Purchase Option Exercise Notice. If Tenant desires to
exercise the Purchase Option, Tenant shall deliver to Landlord thirty (30) days
prior written notice ("Purchase Option Exercise Notice") of Tenant's election.
(c) Transfer. If Tenant exercises the Purchase Option, the
purchase and sale of the Premises shall be consummated as follows:
(i) Landlord shall grant and convey the
Premises to Tenant, its authorized agent or assignee, pursuant to a duly
executed and acknowledged assignment and assumption of leasehold interest (as to
the Land) and a special warranty deed as to the Improvements (collectively
herein the "Deed"), free and clear of all title defects, liens, encumbrances,
deeds of trust, mortgages, rights-of-way and restrictive covenants or
conditions, of record, placed against the Premises by Landlord except for the
Permitted Title Exceptions (excluding the SBLF Mortgage), and any UCC-1 filed or
recorded which evidence security interests encumbering the Premises or any part
thereof in favor of SBLF, which security interests SBLF shall cause to be
released so that they no longer affect the Premises).
(ii) The Purchase Price shall be paid upon
delivery of the Deed and any other documents reasonably requested by Tenant to
evidence the transfer of the Premises subject to the Permitted Title Exceptions
(excluding the SBLF Mortgage, and any UCC-1 filed or recorded which evidence
security interests encumbering the Premises or any part thereof in favor of
SBLF, which security interests SBLF shall cause to be released so that they no
longer affect the Premises) ("Additional Documents"). In the event that Tenant
elects to assign the Purchase Option pursuant to Section 20.1(d) below, and
Tenant's assignee pays an amount less than the Purchase Price for the Premises,
Tenant shall pay to Landlord any excess of the Purchase Price over the amount
paid by such assignee. Landlord shall deliver the Deed and the Additional
Documents to Tenant on the date for closing specified by Tenant in the Purchase
Option Exercise Notice. The closing
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shall take place at the location and in the manner reasonably set forth by
Tenant in the Purchase Option Exercise Notice. Landlord and Tenant agree to
cooperate to establish a concurrent closing and release of the security
interests so that the Collateral may be used to pay the Purchase Price, if
required.
(iii) If Landlord shall fail to cause title to
be in the condition required in Section 20.1(c)(i) above within the time herein
prescribed for the delivery of the Deed, then Tenant shall have the right (in
addition to all other rights provided by law) by a written notice to Landlord:
(1) to extend the time in which Landlord shall clear title and deliver the Deed
and Additional Documents, during which extension this Lease shall remain in full
force and effect, except Tenant shall be released from its obligation to pay
Base Rent during the extension; (2) to accept delivery of the Deed and
Additional Documents subject to such title defects, liens, encumbrances, deeds
of trust, mortgages, rights-of-way and restrictive covenants or conditions
specified and set forth in the Deed and not cleared by Landlord; (3) to rescind,
by notice to Landlord and without any penalty or liability therefor, any and all
obligations Tenant may have under and by virtue of the Purchase Option or the
exercise thereof, whereupon this Lease shall remain in full force and effect;
(4) if the title exception is curable by the payment of money, Tenant may make
such payment and such payment shall be a credit against the Purchase Price in
favor of Tenant.
(iv) Base Rent shall be prorated and paid and
all Additional Rent which is then due and payable shall be paid as of the date
title to the Premises is vested of record in Tenant. Tenant shall pay the escrow
fees; the recorder's fee for recording the Deed; the premium for the title
insurance policy; all documentary transfer taxes; Tenant's attorneys' fees;
Landlord's reasonable attorneys' fees; all other costs and expenses incurred by
Tenant in consummating the transfer of the Premises; and all reasonable expenses
(except as specified in the next sentence) incurred by Landlord in consummating
the transfer of the Premises pursuant to this Section 20.1. Landlord shall pay
the costs and expenses of clearing title as required by Section 20.1(c)(i).
(d) Assignment. Tenant shall have the right, without
Landlord's consent, to assign this purchase option, in whole, to any Entity at
any time, whether or not Tenant also assigns its interest in the Lease.
20.2 Termination Option.
(a) Notice. Provided that no Event of Default has occurred and is
continuing, no later than six (6) months prior to the expiration of the Term,
Tenant may notify Landlord in writing of its election to exercise an option
("Termination Option") to sell the Premises; provided, however that at any time
Tenant can rescind its election to exercise its Termination Option if it then
exercises its Purchase Option pursuant to Section 20.1 above. The six (6) month
period is referred to herein as the "Sales Period".
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(b) Termination Option. After giving the notice set forth in section
(a) above Tenant shall then use its best efforts to sell the Premises for cash
to a third party purchaser (who is not an affiliate of Tenant within the meaning
of Rule 405 under the Securities Act of 1933) and, if the Premises are not
conveyed to such purchaser prior to the expiration of the Term, Tenant shall
have no further right to sell the Premises, the Lease shall terminate, Tenant
shall immediately vacate the Premises, and quitclaim all interest of Tenant, if
any, therein to Landlord.
(c) Termination Option Procedures. In the event that Tenant elects the
Termination Option, Tenant shall use its best efforts throughout the Sales
Period to obtain a purchaser (who is not an affiliate of Tenant as described
above) for the Premises. Tenant shall have the exclusive right to market the
Premises during the first four (4) months of the Sales Period (the "Exclusive
Period"). Landlord may direct Tenant to hire and pay for no more than one (1)
commission sales agent after the expiration of the Exclusive Period. Except as
otherwise provided below, any sale by Tenant shall be for the highest cash bid
submitted to Tenant, including any cash bid submitted by Landlord. The
determination of the highest bid shall be made by Landlord prior to the end of
the Sales Period. After the end of the Exclusive Period, Landlord may accept any
bid solicited by Landlord, Tenant or its agent, in which case Tenant's sales
effort may be suspended until the earlier of the closing of such sale on the
last day of the Term or revocation or rejection of such cash bid.
Notwithstanding the above provisions, Tenant may (i) accept during the Exclusive
Period any cash bid (net of expenses of sale) which exceeds the Lease Investment
Balance, and (ii) rescind the Termination Option at any time so long as it is
exercising its Purchase Option, which shall be prior and superior to an accepted
offer from a third party. If Landlord undertakes any sales efforts, Tenant shall
promptly reimburse Landlord for any reasonable charges, costs and expenses
incurred in such effort, including any commissions, allocated time charges,
costs and expenses of internal counsel, external counsel or other attorneys'
fees.
(d) Payments under Termination Option. If Tenant elects the Termination
Option, Tenant shall pay to Landlord on the last day of the Term in immediately
available funds any Base Rent or Additional Rent due and owing under the Lease.
Except as provided in Section 20.2(e), the proceeds (the "Proceeds") of any sale
of the Premises pursuant to the Termination Option shall be paid to Landlord
upon any such sale without deductions, and not later than the expiration of the
Lease Term.
(e) Procedures Upon Sale under the Termination Option. Any sale
pursuant to the Termination Option shall be consummated on the last day of the
Term. To the extent the Proceeds exceed the Lease Investment Balance, such
excess shall be paid out of escrow to Tenant. Upon payment to Landlord of all
amounts due it under this Lease, Landlord shall execute and deliver to the
purchaser of the Premises a grant deed in the same manner and subject to the
same conditions and obligations as are set forth in Section 20.1(c) above and
have the same obligation to deliver title and remove exceptions
33
as set forth in said Section. Except as provided in the second sentence of this
subparagraph, the Proceeds shall be applied first to the Lease Investment
Balance, Tenant shall reimburse Landlord for the difference between the Lease
Investment Balance (calculated immediately prior to receipt of the Proceeds) and
the Proceeds, up to the amount of the Guaranteed Residual Value, and Landlord
shall have no claim whatsoever to the Proceeds in excess of such amount upon
receipt of such Proceeds.
ARTICLE 21
MISCELLANEOUS
21.1 Relationship. Neither this Lease nor any agreements or
transactions contemplated hereby shall in any respect be interpreted, deemed or
construed as constituting Landlord and Tenant as partners or joint venturers,
one with the other, or as creating any partnership, joint venture, association
or, except as set forth in Section 21.2 below, any other relationship other than
that of landlord and tenant: and, except as set forth in Section 21.2 below,
both Landlord and Tenant agree not to make any contrary assertion, contention,
claim or counterclaim in any action, suit or other legal proceeding involving
either Landlord or Tenant or the subject matter of this Lease.
21.2 Form of Transaction: Certain Tax Matters.
(a) Landlord and Tenant hereby agree and declare that the
transactions contemplated by this Lease are intended to constitute, both as to
matters of form and substance:
(i) an operating lease for financial accounting
purposes, and
(ii) a financing arrangement (and not a "true
lease") for purposes of Federal, state and local income, property or other forms
of tax.
Accordingly, and notwithstanding any other provision of this Lease to the
contrary, Landlord and Tenant agree and declare that (A) the transactions
contemplated hereby are intended to have a dual, rather than single, form and
(B) all references in this Lease to the "Lease" of the Premises which fail to
reference such dual form do so as a matter of convenience only and do not
reflect the intent of Landlord and Tenant as to the true form of such
arrangements.
(b) Landlord and Tenant agree that, in accordance with their
intentions and the substance of the transactions contemplated hereby, Tenant
(and not Landlord) shall be treated as the owner of the Premises for Federal,
state, local income and property tax purposes and this Lease shall be treated as
a financing arrangement. Tenant shall be entitled to take any deduction, credit
allowance or other reporting, filing or other tax position consistent with such
characterizations. Landlord shall not file any Federal, state
34
or local income tax returns, reports or other statements in a manner which is
inconsistent with the foregoing provisions of this Section 21.2.
(c) Tenant acknowledges that it has retained accounting, tax
and legal advisors to assist it in structuring this Lease and Tenant is not
relying on any representations of Landlord regarding the proper treatment of
this transaction for accounting, income tax or any other Purpose.
21.3 Notices. Each Notice shall be in writing and shall be sent by
personal delivery, overnight courier (charges prepaid or billed to the sender)
or by the deposit of such with the United States Postal Service, or any official
successor thereto, designated as registered or certified mail, return receipt
requested, bearing adequate postage and in each case addressed as provided in
the Basic Lease Provisions. Each Notice shall be effective upon being personally
delivered or actually received. The time period in which a response to any such
Notice must be given or any action taken with respect thereto shall commence to
run from the date of personal delivery or receipt of the Notice by the addressee
thereof, as reflected on the return receipt of the Notice. Rejection or other
refusal to accept shall be deemed to be receipt of the Notice sent. By giving to
the other party at least thirty (30) days' prior Notice thereof, either party to
this Lease shall have the right from time to time during the Term of this Lease
to change the address(es) thereof and to specify as the address(es) thereof any
other address(es) within the continental United States of America.
21.4 Severability of Provisions. If any term, covenant or condition of
this Lease shall be invalid or unenforceable, the remainder of this Lease, or
the application of such term, covenant or condition to Entities or circumstances
other than those as to which it is invalid or unenforceable, shall not be
affected thereby.
21.5 Entire Agreement: Amendment. This Lease and the Transaction
Documents constitute the entire agreement of Landlord and Tenant with respect to
the subject matter hereof. Neither this Lease nor any provision hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
21.6 Memorandum of Sublease of the Land and Lease of the Improvements.
Neither party shall record this Lease. However, concurrently with the execution
of this Lease, Landlord and Tenant have executed a Memorandum of Sublease of the
Land and Lease of the Improvements ("Memorandum of Lease") in the form attached
hereto as Exhibit E and by this reference made a part hereof, which Memorandum
of Lease shall be promptly recorded in the Official Records.
35
21.7 Successors and Assigns. Subject to Articles 14 and 15, this Lease
shall inure to the benefit of and be binding upon Landlord and Tenant and their
respective heirs, executors, legal representatives, successors and assigns.
Whenever in this Lease a reference to any Entity is made, such reference shall
be deemed to include a reference to the heirs, executors, legal representatives,
successors and assigns of such Entity.
21.8 Commissions. Tenant acknowledges that it has employed The Staubach
Company as a broker in this transaction and shall be solely responsible for all
costs in connection with such representation. Other than for such
representation, Landlord and Tenant each represent and warrant that neither has
dealt with any broker in connection with this transaction and that no real
estate broker, salesperson or finder has the right to claim a real estate
brokerage, salesperson's commission or finder's fee by reason of contact between
the parties brought about by such broker, salesperson or finder. Each party
shall hold and save the other harmless of and from any and all loss, cost,
damage, injury or expense arising out of or in any way related to claims for
real estate broker's or salesperson's commissions or fees based upon allegations
made by the claimant that it is entitled to such a fee from the indemnified
party arising out of contact with the indemnifying party or alleged
introductions of the indemnifying party to the indemnified party.
21.9 Attorneys' Fees. In the event any action is brought by Landlord or
Tenant against the other to enforce or for the breach of any of the terms,
covenants or conditions contained in this Lease, the prevailing party shall be
entitled to recover reasonable attorneys' fees to be fixed by the court,
together with costs of suit therein incurred. Tenant shall pay the reasonable
attorneys' fees incurred by Landlord for the review and negotiation of this
Lease.
21.10 Governing Law. This Lease and the obligations of the parties
hereunder shall be governed by and interpreted, construed and enforced in
accordance with the laws of the State of Oregon.
21.11 Counterparts. This Lease may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall comprise but a single instrument.
21.12 Time Is of the Essence. Time is of the essence of this Lease, and
of each provision hereof.
21.13 No Third Party Beneficiaries. This Lease is entered into by
Landlord and Tenant for the sole benefit of Landlord and Tenant. There are no
third party beneficiaries to this Lease.
36
21.14 Limitations on Recourse. The obligations of Tenant and Landlord
under this Lease shall be without recourse to any partner, officer, trustee,
beneficiary, shareholder, director or employee of Tenant or Landlord. Except for
the gross negligence or willful misconduct of Landlord, or for breach of
Landlord's obligation to fund pursuant to Article 6 above, Landlord's liability
to Tenant for any default by Landlord under this Lease: (1) shall be limited to
Landlord's equity in the Premises; and (2) shall extend to any actual damages of
Tenant, but shall not extend to any foreseeable and unforeseeable consequential
damages.
21.15 Estoppel Certificates. Within thirty (30) days after request
therefor by either party, the non-requesting party shall deliver, in recordable
form, a certificate to any proposed mortgagee, purchaser, sublessee or assignee
and to the requesting party, certifying (if such be the case) that this Lease is
in full force and effect, the date of Tenant's most recent payment of Rent,
that, to the best of its knowledge, the non-requesting party has no defenses or
offsets outstanding, or stating those claimed, and any other information
reasonably requested. Failure to deliver said statement in time shall be
conclusive upon the non-requesting party that: (a) this Lease is in full force
and effect, without modification except as may be represented by the requesting
party; (b) there are no uncured defaults in the requesting party's performance
and the non-requesting party has no right of offset, counterclaim or deduction
against the non-requesting party's obligations hereunder; (c) no more than one
month's Base Rent has been paid in advance; and (d) any other matters reasonably
requested in such certificate.
21.16 Collateral. The parties acknowledge that Tenant has pledged
certain collateral ("Collateral") to Landlord to secure Tenant's obligations
pursuant to the Pledge Agreement. If Landlord applies any of the Collateral to
satisfy an obligation hereunder, such application shall be deemed to reduce the
Lease Investment Balance under this Lease on a dollar-for-dollar basis. Tenant
shall have no claims, rights or causes of action against Landlord arising from
any application of the Collateral in accordance with the Pledge Agreement to
satisfy any obligation under this Lease.
21.17 As-Is Lease. Landlord makes no representations or warranties
concerning the condition, suitability or any other matters relating to the
Premises, and Tenant hereby acknowledges that Tenant leases the Premises from
Landlord on an "as is" basis.
21.18 Net Lease. Except for Landlord's Taxes or as otherwise provided
in this Lease, Tenant agrees that this Lease is an absolute net Lease, and the
Base Rent called for hereunder shall be paid as required net of all expenses
associated with the Premises, including without limitation, Real Estate Taxes
and insurance premiums for the insurance required to be carried hereunder, and
all other reasonable and customary costs and expenses incurred by Landlord and
owed to independent third parties (other than the charges due SBNYTC pursuant to
the Custody Agreement), in connection with the Premises or this Lease, all of
which shall be paid or reimbursed by Tenant unless
37
otherwise specifically provided herein. Tenant agrees to reimburse Landlord,
within five (5) business days following receipt of any written demand therefor,
for all reasonable and customary fees (including fees to SBNYTC), late charges,
title endorsement, custodian fees related to the Collateral and other costs and
expenses charged to Landlord which accrue during any period unless such expenses
are capitalized and added to the Lease Investment Balance.
21.19 Representations and Warranties. Tenant and Landlord each hereby
represents and warrants to the other that: (i) such party has the full right and
authority to enter into this Lease, consummate the sale, transfers and
assignments contemplated herein and otherwise perform its obligations under this
Lease; (ii) the person or persons signatory to this Lease and any document
executed pursuant hereto on behalf of such party have full power and authority
to bind such party; and (iii) the execution and delivery of this Lease and the
performance of such party's obligations hereunder do not and shall not result in
the violation of its organizational documents or any material contract or
agreement to which such party may be a party.
21.20 Tenant's Wavier of Demand for Possession. Tenant waives any
demand for possession of the Premises and any demand for payment of Base Rent
and notice of intent to re-enter the Premises, or of intent to terminate this
Lease, and waives any and every other notice or demand prescribed by any
applicable statutes or laws.
21.21 Financial Reporting. Tenant shall provide to Landlord: (1)
annually, within ninety (90) days after the end of each of Tenant's fiscal years
during the Term, an annual audited financial statement of Tenant, (2) quarterly,
within forty-five (45) days after the end of each of Tenant's fiscal quarters
during the Term, quarterly audited financial statements of Tenant, and (3) an
officer's certificate delivered every reporting period stating that no Event of
Default has occurred under the Lease in the form attached as Exhibit F.
ARTICLE 22
INDEMNIFICATION
22.1 Tax Indemnity. Notwithstanding anything in Article 8 to the
contrary, Tenant shall protect and defend Landlord from and against all criminal
prosecution regarding and shall indemnify and hold Landlord harmless from and
against any and all loses, costs, liabilities or damages (including reasonable
attorneys' fees and disbursements and court costs) arising by reason of:
(a) Any and all U.S. Federal, state or local income taxes
imposed upon Landlord in consequence of Landlord being treated as the owner or
lessor of the Premises (or any part thereof) for such tax purposes; provided
Landlord has fully complied with Section 21.2;
38
(b) Any and all taxes imposed upon Tenant (except to the
extent of Landlord's Taxes or to the extent that such taxes are imposed upon
Tenant as a result of Landlord's failure to comply with its obligations under
this Lease);
(c) Any and all taxes required to be withheld from payments
made by Tenant to a third party not related to or affiliated with Landlord;
(d) Any and all Real Estate Taxes;
(e) Any and all taxes owed by Landlord (other than Landlord
Taxes) as a result of payment made by Tenant to Landlord pursuant to Tenant's
indemnity obligations under this Section 22.1; and
(f) Any and all costs, liabilities or damages (including
reasonable attorneys' fees) incurred by Landlord in obtaining indemnification
payments from Tenant under the provisions of this Section 22.1.
Tenant's obligation to reimburse or indemnify Landlord for any taxes,
governmental fees, penalties, interest or other supplemental tax charges under
this Lease shall be reduced by the value of any related or offsetting tax
benefits derived or realized by Landlord. Tenant's duty to indemnify Landlord
under this Section 22.1 shall apply only to taxes arising during the Term
(whether or not due and payable at the conclusion of the Term), but shall
otherwise survive the expiration or earlier termination of this Lease.
22.2 Environmental Indemnity. Tenant agrees to indemnify and hold
Landlord harmless from and against, and to reimburse Landlord with respect to,
any and all claims, demands, causes of action, losses, damages, liabilities,
costs and expenses (including attorneys' fees and court costs), fines and/or
penalties of any and every kind or character, known or unknown, fixed or
contingent, asserted or potentially asserted against or incurred by Landlord at
any time and from time to time by reason of, in connection with or arising out
of (A) the failure of Tenant to perform any obligation herein required to be
performed by Tenant regarding Applicable Environmental Laws, (B) any violation
of any Applicable Environmental Law by Tenant or with respect to the Premises or
any disposal or other release by Tenant or with respect to the Premises of any
hazardous substance, environmental contaminants or solid waste on or to the
Premises, whether or not resulting in a violation of any Applicable
Environmental Law, (C) any act, omission, event or circumstance by Tenant or
with respect to the Premises which constitutes or has constituted violation of
any Applicable Environmental Law with respect to the Premises, regardless of
whether the act, omission, event or circumstance constituted a violation of any
Applicable Environmental Law at the time of its existence or occurrence, and (D)
except to the extent of Landlord's gross negligence or willful misconduct, any
and all claims or proceedings (whether brought by private party or
39
governmental agencies) for bodily injury, property damage, abatement or
remediation, environmental damage or impairment or any other injury or damage
resulting from or relating to any hazardous or toxic substance or contaminated
material located upon or migrating into, from or through the Premises or the
Improvements (whether or not the release of such materials was caused by Tenant,
a subtenant, a prior owner of the Premises or any other Entity) which Landlord
may incur. Tenant's duty to indemnify Landlord under this Section 22.2 shall
survive the expiration or earlier termination of the Lease with respect to
events occurring during or prior to the Term or after the Term while Landlord
has record title to and Tenant is occupying the Premises, but shall terminate as
to events occurring wholly after Tenant is in default under the Lease and is no
long in possession of the Premises.
22.3 Construction Indemnification. Tenant will defend, protect,
indemnify and save harmless Landlord from and against all liabilities,
obligations, claims, damages, causes of action, costs and expenses, imposed upon
or incurred by Landlord by reason of the occurrence or existence of any of the
following during the Term, except to the extent caused by the willful
misconduct, gross negligence, or willful breach of contract of Landlord or its
agents: (1) any accident, injury to or death of persons or loss of or damage to
property occurring on or about the Premises or Improvements; (2) performance of
any labor or services or the furnishing of any materials or other property in
respect of the Premises or the Improvements; (3) the negligence or willful
misconduct on the part of Tenant or any of its agents, invitees, employees or
contractors or any other persons entering onto the Premises or the Improvements
at the request, behest or with the permission of Tenant; (4) the use or
occupancy of the Improvements; (5) the use of the Land; or (6) any breach by the
"Owner" under the contracts entered into by Tenant as Landlord's agent pursuant
to the terms of the Construction Management Agreement if such breach is caused
by Tenant's actions or omissions or because of Tenant's failure to discharge its
duties under the Construction Management Agreement. Tenant's duty to indemnify
Landlord under this Section 22.3 shall survive the expiration or earlier
termination of this Lease with respect to events occurring during the Term or
after the Term while Landlord has record title to and Tenant is occupying the
Premises.
22.4 General Indemnity. Except to the extent of Landlord's gross
negligence or willful misconduct, Tenant shall defend, indemnify, and hold
Landlord harmless from and against any and all losses, costs, expenses,
liabilities, claims, causes of action and damages of all kinds that may result
to Landlord, including reasonable attorneys' fees and disbursements incurred by
Landlord, arising because of any failure by Tenant to perform any of its
obligations under this Lease. Tenant's duty to indemnify Landlord under this
Lease shall survive the expiration or earlier termination of this Lease.
40
ARTICLE 23
COVENANTS OF LANDLORD
23.1 Title. In the event Tenant so requests in writing (and so long as
either Tenant agrees to indemnify Landlord to Landlord's satisfaction from any
liabilities or obligations in connection therewith, or Landlord does not incur
any liabilities or obligations in connection therewith), Landlord shall execute
all documents, instruments and agreements reasonably requested by Tenant in
order to accomplish any of the following in the manner reasonably requested by
Tenant and within the time parameters reasonably requested by Tenant: (1) remove
exceptions to title to or affecting the Premises; (2) create exceptions to title
(including, without limitation, easements and rights of way) to or affecting the
Premises; or (3) modify any then-existing exception to title. Tenant shall
promptly reimburse Landlord for, or at Landlord's request, pay directly in
advance, all reasonable costs, expenses and other amounts incurred or required
to be expended by Landlord in order to comply with Tenant's requests made in
accordance with the preceding sentence, and the failure of Tenant to reimburse
or pay any such amounts shall result in the suspension of Landlord's obligations
under such sentence with respect to that particular request until the amounts
required to be paid by Tenant under this sentence have been paid. Landlord
acknowledges that it is critical to Tenant's ability to construct improvements
on the Premises to have the ability and flexibility to accomplish the foregoing,
and that the parties therefore agree that Landlord shall not be entitled to
withhold Landlord's consent to any of the foregoing requests by Tenant, except
as set forth in the preceding sentence.
23.2 Land Use. Except where requested by Tenant pursuant to this
Section 23.2, Landlord shall not cause or give its written consent to any land
use or zoning change affecting the Premises or any changes of street grade. In
the event Tenant so requests in writing (and so long as either Tenant agrees to
indemnify Landlord to Landlord's satisfaction, from any liabilities or
obligations in connection therewith, or Landlord does not incur any liabilities
or obligations in connection therewith), Landlord shall execute all documents,
instruments and agreements reasonably requested by Tenant in order to accomplish
any of the following in the manner reasonably requested by Tenant and within the
time parameters reasonably requested by Tenant: (1) cause a change in any land
use restriction or law affecting the Premises; (2) cause a change in the zoning
affecting the Premises; or (3) cause a change in the street grade with respect
to any street in the vicinity of the Premises. Tenant shall promptly reimburse
Landlord for, or at Landlord's request, pay directly in advance, all reasonable
costs, expenses and other amounts incurred or required to be expended by
Landlord in order to comply with Tenant's requests made in accordance with the
preceding sentence, and the failure of Tenant to reimburse or pay any such
amounts shall result in the suspension of Landlord's obligations under such
sentence with respect to that particular request until the amounts required to
be paid by Tenant under this sentence have been paid.
41
23.3 Transfer of Property Interests. Except as requested by Tenant
pursuant to this Lease, Landlord shall not transfer to any third party any
rights inuring to or benefits associated with the Premises (including, without
limitation, zoning rights, development rights, air space rights, mineral, oil,
gas or water rights). Nothing in this Section 23.3 shall limit Landlord's right
to transfer Landlord's interest in this Lease to a third party or its rights to
transfer the Premises, pursuant to Section 14.2; provided that as to a transfer
under Section 14.2 any purchaser of Landlord's interest in the Premises shall be
bound by the terms of this Lease, including without limitation the terms of this
Section 23.3).
[Signatures begin on next page.]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Lease as
of the day and year first above written.
TENANT: INTEGRATED DEVICE TECHNOLOGY,
INC., a Delaware Corporation
By /S/ WILLIAM D. SNYDER
----------------------------------
Name WILLIAM D. SNYDER
----------------------------------
Its VICE PRESIDENT, CHIEF FINANCIAL OFFICER
----------------------------------------
By /S/ JACK MENACHE
----------------------------------
Name JACK MENACHE
----------------------------------
Its VICE PRESIDENT
----------------------------------
Signatures continued on next page
43
LANDLORD: SUMITOMO BANK LEASING AND
FINANCE, INC., a Delaware corporation
By /S/ WILLIAM M. GINN
----------------------------------
Name WILLIAM M. GINN
----------------------------------
Its PRESIDENT
----------------------------------
Dated: , 1995
------------------
44
Exhibit A
DESCRIPTION OF THE LAND
Real property being a portion of Lots 6 and 8 of DAWSON CREEK CORPORATE PARK,
recorded in Plat Book 67, Page 34, records of Washington County, Oregon, in the
City of Hillsboro, in the County of Washington and State of Oregon, more
particularly described as follows:
BEGINNING at the Northwest corner of said Lot 8 of DAWSON CREEK CORPORATE PARK;
thence along the West line of said Lot 8, South 00(degree)10'12" West 611.87
feet to the true point of beginning; thence South 89(degree)49'48" East 1037.91
feet; thence South 57(degree)46'34" East 154.15 feet; thence South
00(degree)10'12" West 613.61 feet to a point on the Northerly right of way line
of Northeast Brookwood Parkway as shown on said plat of DAWSON CREEK CORPORATE
PARK; thence along said Northerly right of way of Northwest Brookwood Parkway
and from a tangent bearing of South 53(degree)48'01" West along the arc of a
non-tangent 1414.20 foot radius curve to the right, through a central angle of
19(degree)48'55" an arc distance of 489.09 feet to a point of tangency; thence
continuing along said Northerly right of way line South 73(degree)36'56" West
310.86 feet to the point of curvature with a tangent 100.00 foot radius curve to
the right; thence along the arc of said curve through a central angle of
90(degree)00'00" an arc distance of 157.08 feet to a point of tangency on the
Easterly right of way line of Northeast Dawson Creek Drive as shown on said plat
of DAWSON CREEK CORPORATE PARK; thence along said Easterly right of way line
North 16(degree)23'04" West 65.00 feet to the point of curvature with a tangent
1315.32 foot radius curve to the left; thence continuing along said Easterly
right of way and along said curve to the left through a central angle of
32(degree)44'39" an arc distance of 751.70 feet to a point on the Westerly line
of said Lot 8; thence along said Westerly line North 40(degree)52'16" East 77.50
feet to a point of curvature with a tangent 250.00 foot radius curve to the
left; thence along the arc of said curve through a central angle of
40(degree)42'04" an arc distance of 177.59 feet to a point of tangency; thence
North 00(degree)10'12" East 27.00 feet to the true point of beginning.
Exhibit B
CLOSING COSTS AND FEES TO BE INCLUDED IN INITIAL ADVANCE
The following items shall be included in the definition of the Initial
Advance under Section 2.18 of the Lease:
1. Arrangement fee (SBLF) $ 160,000.00
2. Fee of SBNYTC (set up fee) 2,500.00
3. Fees to Landels, Ripley & Diamond 42,250.00
4. Fees to Foster, Pepper 1,800.00
5. Fees to Wilson, Sonsini 51,421.00
6. Fees to Preston, Gates & Ellis 17,939.05
7. Appraisal Fee 6,600.00
8. Draw to Irish Leasing 3,407,366.00
Corporation
9. Fees to Liechty, McKinnis & Kolit 4,369.61
10. Fees to Dreyer & Traub 4,825.00
11. Fees to The Staubach Company 400,000.00
12. Fees to Title Company 138,437.50
13 Transfer Taxes 3,408.00
Total $4,240,916.16
Exhibit C
PERMITTED TITLE EXCEPTIONS
1. Taxes for the fiscal year 1994-95, partial payment has been made.
2. The premises herein described are within and subject to the statutory
powers including the power of assessment of the Unified Sewerage Agency
of Washington County.
3. Covenants, conditions, restrictions and easements, but omitting
restrictions, if any, based on race, color, religion, sex, handicap,
familial status or national origin, imposed by instrument, including
the terms and provisions thereof.
Recorded: September 14, 1988
Recorder's Fee No. 88-41011
Said covenants, conditions, restrictions, and easements were amended by
instrument;
Recorded: June 27, 1974
Recorder's Fee No. 94061427
Said covenants, conditions and restrictions contain among other things,
provision for levies and assessments by the declarant.
4. Easements as dedicated or delineated on the recorded plat.
In favor of: The City of Hillsboro
For: a) Public bike path
b) Public utilities within the landscape
easement areas
c) Public utilities within the areas
labeled - Public utility easements
5. Easements as dedicated or delineated on the recorded plat.
For: Public utility easements, landscape
easements, common areas, public bike
path
6. Covenants, conditions and restrictions as shown on the recorded plat.
7. Declaration of Mutual Roadway and Utility Easement Agreement, including
the terms and provisions thereof;
Dated: September 1, 1994
Recorded: September 1, 1994
Recorder's Fee No. 94080763
In Favor Of: Adjacent property owner
For: Reciprocal access
Location: The Westerly and Northerly area of the subject
property
8. Any encroachments, unrecorded easements, violations of covenants,
conditions and restrictions, and any other matters which would be
disclosed by a correct survey.
9. Any statutory liens for labor or materials, including liens for
contributions due to the State of Oregon for unemployment compensation
and for workmen's compensation, which have now gained or hereafter may
gain priority over the lien of the insured mortgage, which liens do not
now appear of record.
10. Ground Lease by and between Integrated Device Technology, Inc. and
Sumitomo Bank Leasing and Finance, Inc.
11. Sublease by and between Integrated Device Technology, Inc. and Sumitomo
Bank Leasing and Finance, Inc.
2
Exhibit D
RENT COMMENCEMENT DATE MEMORANDUM
THIS RENT COMMENCEMENT DATE MEMORANDUM ("Memorandum") is entered into
this ____ day of __________, 199__, by and between SUMITOMO BANK LEASING AND
FINANCE, INC., a Delaware corporation ("Landlord"), and INTEGRATED DEVICE
TECHNOLOGY, INC., a Delaware corporation ("Tenant") concerning that certain
Lease ("Lease") between Landlord and Tenant dated January __, 1995. Any
capitalized terms not defined in this Memorandum shall have their meaning as
defined in the Lease.
1. Pursuant to Section 6.2 of the Lease, Landlord and Tenant are
required to enter into this Memorandum within thirty (30) days after the Rent
Commencement Date for the Premises.
2. Landlord and Tenant agree the that Rent Commencement Date for the
Premises is __________, 199__.
3. The dollar value of the Guaranteed Residual Value (defined in
Section 2.19 of the Lease) for the Premises is $__________.
IN WITNESS WHEREOF, the parties have executed this Memorandum as of the
date and year first above written.
TENANT: INTEGRATED DEVICE TECHNOLOGY,
INC., a Delaware Corporation
By
----------------------------------
Name
----------------------------------
Its
----------------------------------
(signatures continued on next page)
LANDLORD: SUMITOMO BANK LEASING AND
FINANCE, INC., a Delaware corporation
By
----------------------------------
Name
----------------------------------
Its
----------------------------------
By
----------------------------------
Name
----------------------------------
Its
----------------------------------
2
Exhibit E
(MEMORANDUM OF SUBLEASE
OF THE LAND AND LEASE OF THE IMPROVEMENTS)
RECORDING REQUESTED BY, AND
WHEN RECORDED, RETURN TO:
--------------------
--------------------
--------------------
Attention: , Esq.
---------------------
MEMORANDUM OF SUBLEASE
OF THE LAND AND LEASE OF THE IMPROVEMENTS
THIS MEMORANDUM OF SUBLEASE OF THE LAND AND LEASE OF THE IMPROVEMENTS
("Memorandum of Lease") is executed as of January __, 1995, by and between
SUMITOMO BANK LEASING AND FINANCE, INC., a Delaware corporation ("Landlord"),
and INTEGRATED DEVICE TECHNOLOGY, INC., a Delaware corporation ("Tenant").
RECITALS
WHEREAS, Landlord and Tenant have executed that certain lease ("Lease")
dated as of January __, 1995, covering a leasehold interest in certain land
located on the real property located in the City of Hillsboro, Washington
County, Oregon as more particularly described in Schedule 1 attached hereto and
incorporated herein by this reference ("Land") and the Improvements which may
come to be located on said Land (the Land and Improvements are referred to
herein as the "Premises"); and
WHEREAS, Landlord and Tenant desire to record notice of the Lease in
the real estate records of Washington County, California:
NOW, THEREFORE, in consideration of the foregoing, Landlord and Tenant
hereby declare as follows:
1. Demise. Landlord hereby leases the Premises to Tenant and Tenant
hereby leases the Premises from Landlord, subject to the terms, covenants and
conditions contained in the Lease.
E-1
2. Expiration Date. The term of the Lease ("Term") shall commence with
respect to the Land on the date hereof and with respect to the Improvements as
provided for in the Lease, and shall expire on January __, 2000.
3. Option to Purchase. Tenant has an option to purchase the Premises,
as more particularly described in the Lease, at any time during the Term
(including any extension thereof).
4. Restrictions on Encumbrances. Landlord is prohibited from recording
against the Premises liens (including, without limitation, deeds of trust),
encumbrances, and other matters that would constitute exceptions to title, and
from amending or modifying any of the foregoing that may exist now or during the
Term, as more particularly described in the Lease.
5. Restrictions on Transfers by Landlord. Subject to certain
exceptions, Landlord may transfer its interest in the Premises to a third party
subject to the restrictions which are set forth with more particularity in the
Lease.
6. Counterparts. This Memorandum of Lease may be executed in any number
of counterparts, each of which shall be deemed to be an original and all of
which together shall comprise but a single instrument.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Memorandum
of Lease as of the date and year first written above.
TENANT: INTEGRATED DEVICE TECHNOLOGY,
INC., a Delaware Corporation
By
----------------------------------
Name
----------------------------------
Its
----------------------------------
(Signatures continued on next page)
E-2
LANDLORD: SUMITOMO BANK LEASING AND
FINANCE, INC., a Delaware corporation
By
----------------------------------
Name
----------------------------------
Its
----------------------------------
By
----------------------------------
Name
----------------------------------
Its
----------------------------------
E-3
Schedule 1 to Exhibit E
[TO BE INSERTED]
Exhibit F
FORM OF OFFICERS' CERTIFICATE
The undersigned, ____________________ of INTEGRATED DEVICE TECHNOLOGY,
INC., a Delaware corporation hereby certifies that as of the date hereof the
lease dated January __, 1995 by and between SUMITOMO BANK LEASING AND FINANCE,
INC., a Delaware corporation, as Landlord and INTEGRATED DEVICE TECHNOLOGY,
INC., a Delaware corporation, as Tenant is in full force and effect, and Tenant
is not in default thereunder.
Date:
---------------------------- -------------------------
E-5
(MEMORANDUM OF SUBLEASE
OF THE LAND AND LEASE OF THE IMPROVEMENTS)
RECORDING REQUESTED BY, AND
WHEN RECORDED, RETURN TO:
Sumitomo Bank Leasing and Finance, Inc.
c/o Landels, Ripley & Diamond
350 Steuart Street
San Francisco, CA 94105-1250
Attention: Bruce W. Hyman, Esq.
MEMORANDUM OF SUBLEASE
OF THE LAND AND LEASE OF THE IMPROVEMENTS
THIS MEMORANDUM OF SUBLEASE OF THE LAND AND LEASE OF THE IMPROVEMENTS
("Memorandum of Lease") is executed as of January , 1995, by and between
SUMITOMO BANK LEASING AND FINANCE, INC., a Delaware corporation ("Landlord"),
and INTEGRATED DEVICE TECHNOLOGY, INC., a Delaware corporation ("Tenant").
RECITALS
WHEREAS, Landlord and Tenant have executed that certain lease ("Lease")
dated as of January , 1995, covering a leasehold interest in certain land
located on the real property located in the City of Hillsboro, Washington
County, Oregon as more particularly described in Schedule 1 attached hereto and
incorporated herein by this reference ("Land") and the Improvements which may
come to be located on said Land (the Land and Improvements are referred to
herein as the "Premises"); and
WHEREAS, Landlord and Tenant desire to record notice of the Lease in
the real estate records of Washington County, Oregon:
NOW, THEREFORE, in consideration of the foregoing, Landlord and Tenant
hereby declare as follows:
1. Demise. Landlord hereby leases the Premises to Tenant and Tenant
hereby leases the Premises from Landlord, subject to the terms, covenants and
conditions contained in the Lease.
2. Expiration Date. The term of the Lease ("Term") shall commence with
respect to the Land on the date hereof and with respect to the Improvements as
provided for in the Lease, and shall expire on January , 2000.
3. Option to Purchase. Tenant has an option to purchase the Premises,
as more particularly described in the Lease, at any time during the Term
(including any extension thereof).
4. Restrictions on Encumbrances. Landlord is prohibited from recording
against the Premises liens (including, without limitation, deeds of trust),
encumbrances, and other matters that would constitute exceptions to title, and
from amending or modifying any of the foregoing that may exist now or during the
Term, as more particularly described in the Lease.
5. Restrictions on Transfers by Landlord. Subject to certain
exceptions, Landlord may transfer its interest in the Premises to a third party
subject to the restrictions which are set forth with more particularity in the
Lease.
6. Counterparts. This Memorandum of Lease may be executed in any number
of counterparts, each of which shall be deemed to be an original and all of
which together shall comprise but a single instrument.
[Signatures begin on next page.]
-2-
IN WITNESS WHEREOF, Landlord and Tenant have executed this Memorandum
of Lease as of the date and year first written above.
TENANT: INTEGRATED DEVICE TECHNOLOGY,
INC., a Delaware Corporation
By
---------------------------------
Name
---------------------------------
Its
---------------------------------
By
---------------------------------
Name
---------------------------------
Its
---------------------------------
(All signatures must be acknowledged)
(Signatures continued on next page)
-3-
LANDLORD: SUMITOMO BANK LEASING AND
FINANCE, INC., a Delaware corporation
By
---------------------------------
Name
---------------------------------
Its
---------------------------------
-4-
STATE OF NEW YORK )
) SS.
COUNTY OF NEW YORK )
On the day of January in the year 1995 before me personally came
to me know, who, being by me duly sworn, did depose
and say that he resides in , that he
is the of Sumitomo Bank Leasing and Finance, Inc., the
corporation described in and which executed the above instrument; and that he
signed his name thereto by order of the board of directors of said corporation.
--------------------------------------
[seal]
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On the day of January, 1995, before me, the undersigned, a Notary
Public in and for said State, personally appeared and
, 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.
--------------------------------------
Notary Public
(SEAL)
Schedule 1
Real property being a portion of Lots 6 and 8 of DAWSON CREEK CORPORATE PARK,
recorded in Plat Book 67, Page 34, records of Washington County, Oregon, in the
City of Hillsboro, in the County of Washington and State of Oregon, more
particularly described as follows:
BEGINNING at the Northwest corner of said Lot 8 of DAWSON CREEK CORPORATE PARK;
thence along the West line of said Lot 8, South 00(degree)10'12" West 611.87
feet to the true point of beginning; thence South 89(degree)49'48" East 1037.91
feet; thence South 57(degree)46'34" East 154.15 feet; thence South
00(degree)10'12" West 613.61 feet to a point on the Northerly right of way line
of Northeast Brookwood Parkway as shown on said plat of DAWSON CREEK CORPORATE
PARK; thence along said Northerly right of way of Northwest Brookwood Parkway
and from a tangent bearing of South 53(degree)48'01" West along the arc of a
non-tangent 1414.20 foot radius curve to the right, through a central angle of
19(degree)48'55" an arc distance of 489.09 feet to a point of tangency; thence
continuing along said Northerly right of way line South 73(degree)36'56" West
310.86 feet to the point of curvature with a tangent 100.00 foot radius curve to
the right; thence along the arc of said curve through a central angle of
90(degree)00'00" an arc distance of 157.08 feet to a point of tangency on the
Easterly right of way line of Northeast Dawson Creek Drive as shown on said plat
of DAWSON CREEK CORPORATE PARK; thence along said Easterly right of way line
North 16(degree)23'04" West 65.00 feet to the point of curvature with a tangent
1315.32 foot radius curve to the left; thence continuing along said Easterly
right of way and along said curve to the left through a central angle of
32(degree)44'39" an arc distance of 751.70 feet to a point on the Westerly line
of said Lot 8; thence along said Westerly line North 40(degree)52'16" East 77.50
feet to a point of curvature with a tangent 250.00 foot radius curve to the
left; thence along the arc of said curve through a central angle of
40(degree)42'04" an arc distance of 177.59 feet to a point of tangency; thence
North 00(degree)10'12" East 27.00 feet to the true point of beginning.
After recording, send to:
Until a change is requested,
all tax statements shall be Landels, Ripley & Diamond
sent to: 350 Steuart Street
San Francisco, CA 94105-1250
Sumitomo Bank Leasing and Attn: Bruce W. Hyman, Esq.
Finance, Inc.
277 Park Avenue
New York, NY 10172
Attn: Chief Credit Officer
MATURITY DATE: JANUARY , 2000
------
MAXIMUM PRINCIPAL
AMOUNT TO BE ADVANCED: $64,000,000.00
LINE OF CREDIT TRUST DEED
(Including Fixture Filing and Assignment of Rents)
INTEGRATED DEVICE TECHNOLOGY, INC.,
a Delaware corporation ("Grantor")
to
CHICAGO TITLE INSURANCE COMPANY,
a corporation ("Trustee")
for the use and benefit of
SUMITOMO BANK LEASING AND FINANCE, INC.,
a Delaware corporation ("Beneficiary")
TABLE OF CONTENTS
Page
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1. GRANT AND ASSIGNMENT OF THE PROPERTY.......................................................... 1
1.1 Land................................................................................. 1
1.2 Improvements......................................................................... 1
1.3 Equipment and Fixtures............................................................... 1
1.4 Easements and Rights................................................................. 2
1.5 Condemnation Proceeds................................................................ 2
1.6 Leases............................................................................... 2
1.7 Property Income...................................................................... 2
1.8 Insurance............................................................................ 2
1.9 Title Warranties..................................................................... 2
1.10 Right To Appear...................................................................... 3
1.11 Other and After Acquired Property.................................................... 3
2. OBLIGATIONS SECURED........................................................................... 3
3. COVENANTS OF THE GRANTOR...................................................................... 4
3.1 Payment and Performance.............................................................. 4
3.2 Insurance............................................................................ 5
3.2.1 Casualty Insurance............................................................ 5
3.3 Taxes................................................................................ 5
3.4 Condemnation......................................................................... 5
3.5 Books, Records and Accounts.......................................................... 7
3.6 Security Agreement................................................................... 7
3.7 Damage and Destruction............................................................... 8
3.7.1 Grantor's Obligations......................................................... 8
3.7.2 Beneficiary's Rights; Application of
Proceeds...................................................................... 8
3.7.3 Effect of the Indebtedness.................................................... 9
4. DEFAULT....................................................................................... 9
4.1 Events of Default.................................................................... 9
5. REMEDIES...................................................................................... 9
5.1 Acceleration......................................................................... 9
5.2 Foreclosure.......................................................................... 10
5.2.1 Judicial Foreclosure.......................................................... 10
5.2.2 Foreclosure by Power of Sale.................................................. 10
5.3 Possession of Property; Appointment of Receiver...................................... 11
5.4 Beneficiary Advances................................................................. 13
5.5 No Marshalling....................................................................... 13
5.6 Beneficiary's Discretion............................................................. 13
5.7 No Waiver............................................................................ 13
5.8 Power of Attorney.................................................................... 14
5.9 No Merger............................................................................ 14
5.10 Fees and Costs....................................................................... 14
Page
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6. MISCELLANEOUS PROVISIONS...................................................................... 15
6.1 Governing Law........................................................................ 15
6.2 Modification......................................................................... 15
6.3 Notice............................................................................... 15
6.4 Invalid Provisions................................................................... 16
6.5 Additional Advances and Disbursements................................................ 16
6.6 Other Expenses....................................................................... 17
6.7 Indemnity............................................................................ 17
6.8 Exercise by Trustee.................................................................. 18
6.9 Defeasance........................................................................... 19
6.10 Provisions as to Payments, Advances.................................................. 19
6.11 Usury Savings Clause................................................................. 19
6.12 No Merger............................................................................ 20
6.13 Provisions as to Covenants and Agreements............................................ 20
6.14 Successors and Assigns............................................................... 20
6.15 Trustee's Appointment................................................................ 20
6.16 Subordination........................................................................ 21
6.17 Use.................................................................................. 21
6.18 Interpretation....................................................................... 21
6.19 Verify Use........................................................................... 23
LINE OF CREDIT TRUST DEED
(Including Fixture Filing and Assignment of Rents)
THIS LINE OF CREDIT TRUST DEED ("Trust Deed") is made this
day of January, 1995, by INTEGRATED DEVICE TECHNOLOGY, INC., a Delaware
corporation ("Grantor") to CHICAGO TITLE INSURANCE COMPANY, a corporation
("Trustee") for the use and benefit of SUMITOMO BANK LEASING AND FINANCE, INC.,
a Delaware corporation ("Beneficiary").
1. GRANT AND ASSIGNMENT OF THE PROPERTY. For good and valuable
consideration, Grantor hereby irrevocably grants, transfers, conveys and assigns
to Trustee in trust with power of sale for the benefit and use of Beneficiary
all right, title and interest of Grantor now owned or hereafter acquired in and
to the following real and personal property with the rights, and appurtenances
thereof (collectively the "Property") and by this reference incorporated herein:
1.1 Land. That certain parcel of land located in the County of
Washington, State of Oregon, as more particularly described in Exhibit A
attached hereto and by this reference incorporated as an integral part hereof,
as the description of the same may be amended, modified or supplemented from
time to time, therein, including, but not limited to, Grantor's right, title and
interest in said land arising under the sublease (defined below) and Grantor's
option to purchase said land under Article 20 of the Sublease ("Land").
1.2 Improvements. All the buildings, structures, and
improvements now or hereafter placed on the Land, including, but not limited to,
Grantor's rights in the foregoing property arising under the Sublease (defined
below) and including Grantor's option to purchase the foregoing property under
Article 20 of the Sublease ("Improvements").
1.3 Equipment and Fixtures. All fixtures, appliances,
machinery and equipment installed in, on, or around the Land and Improvements,
including without limitation, gas and electric fixtures, radiators, heaters,
engines and machinery, boilers, stoves, ranges, elevators, escalators,
incinerators, motors, dynamos, sinks, disposals, dishwashers, water closets,
basins, medicine chests, pipes, faucets and other plumbing and heating fixtures,
ventilating apparatus, dryers, washing machines, heating, ventilating and
air-conditioning equipment and units, paneling, refrigerating plants,
refrigerators, whether mechanical or otherwise, fire prevention and
extinguishing apparatus, shades, awnings, screens, blinds, carpeting, wall
cabinets, and furniture, and such other goods and chattels and personal property
as are now
1
or hereafter attached to, used, or furnished in connection with the letting or
operation of the Property or in connection with the activities conducted thereon
(the "Equipment and Fixtures").
Whether or not the Equipment and Fixtures are or shall be
attached to the Land or Improvements in any manner, all renewals, replacements,
additions, accessions, substitutions, proceeds, and products of the Equipment
and Fixtures shall be included in the Property that is subject to the grant and
assignment herein.
1.4 Easements and Rights. All easements and rights-of-way,
gores of land, streets, ways, alleys, passages, sewer rights, water courses,
water rights and powers, the land lying in the bed of any street, whether opened
or proposed, in front of or adjoining the Land, all appurtenances, privileges,
tenements, hereditaments and rights whatsoever, in any way belonging, relating
or appertaining to the Land, or which hereafter shall in any way belong, relate
or be appurtenant thereto (the "Easements and Rights").
1.5 Condemnation Proceeds. All awards or payments to Grantor,
including interest thereon, and the right to receive the same, which may be made
with respect to the Property as a result of (a) the exercise of the right of
eminent domain or the threat thereof, (b) the alteration of the grade of any
street, or (c) any other injury to or decrease in the value of the Property
("Condemnation Proceeds").
1.6 Leases. All right, title and interest of the Grantor in
and to any and all leases, tenancies, and rights of use, and occupancy, with
amendments, if any, and extensions, renewals and guarantees of the tenants'
obligations thereunder, now or hereafter on or affecting all or any part of the
Property, whether or not recorded, if any, with all security therefor and all
monies payable thereunder, and all books and records which contain records of
payments made under the leases and all security therefor.
1.7 Property Income. All rents, issues, income, profits,
security deposits and other benefits to which the Grantor may now or hereafter
be entitled from the Property and/or the business operations conducted at or
from the Property ("Property Income").
1.8 Insurance. All proceeds of and any unearned premiums on
any insurance policies covering all or any part of the Property, including,
without limitation, the right to receive and apply the proceeds of any
insurance, judgments, or settlements made in lieu thereof, for damage to the
Property, and all business interruption insurance in connection with the
business operations conducted at or from the Property ("Insurance").
1.9 Title Warranties. To the extent permitted by
applicable law, all warranties of title and against encumbrances
2
given by Grantor's predecessors in interest and Grantor's rights under any
policy insuring Grantor's title to the property.
1.10 Right To Appear. The right, but not the obligation, in
the name and on behalf of the Grantor, to appear in and defend any action or
proceeding brought with respect to the Property purporting to affect the
security of this Trust Deed or the rights and powers of the Beneficiary, and to
commence any action or proceeding to protect the interest of the Beneficiary in
the Property.
1.11 Other and After Acquired Property. Any and all moneys,
goods, accounts, chattel paper, general intangibles, documents, instruments,
contract rights and other real and personal property (including property
exchanged therefor), of every kind and nature, which may from time to time be
subjected to the lien hereof by Grantor through a supplement or amendment to
this Trust Deed, or which may come into the possession of or be subject to the
control of Trustee or Beneficiary pursuant to this Trust Deed, it being the
intention and agreement of Grantor that all such property shall thereupon be
subject to the lien and security interest of this Trust Deed as if such property
were specifically described in this Trust Deed and conveyed or encumbered hereby
or pursuant hereto, and Trustee and Beneficiary are hereby authorized to receive
any and all such property as security hereunder, subject to the provisions of
this Trust Deed.
1.12 Property. The term "Property" as used herein shall not
include, and this Trust Deed shall not encumber, any process equipment,
fixtures, furniture, furnishings, or trade fixtures which are purchased or
constructed with Funds of Grantor and not purchased, paid for, or otherwise
financed by "Advances" (as that term is defined in the Sublease) made by
Beneficiary, whether or not installed upon the Land or within or made part of
the Improvements.
2. OBLIGATIONS SECURED.
2.1 Concurrently herewith, Beneficiary is leasing to Grantor
the Property described in Exhibit A hereto and certain improvements to be
constructed thereon pursuant to the terms of a sublease executed by Grantor and
Beneficiary of even date herewith (the "Sublease"). Pursuant to the terms of the
Sublease, Beneficiary is obligated to fund certain "Advances" (as defined in the
Sublease), in an aggregate amount not to exceed $64,000,000 ("Improvement
Advances"), which Improvement Advances are to be reimbursed by Grantor as part
of the "Purchase Price", as defined in the Sublease, to be paid pursuant to the
terms of the Sublease. The maximum principal amount secured by this Trust Deed
to be advanced under the terms of the Sublease is $64,000,000.
3
2.2 This Trust Deed is given for the purpose of securing all
of the following obligations of Grantor to Beneficiary (both monetary and
otherwise):
2.2.1 All amounts payable by Grantor under and in
connection with the Sublease dated of even date herewith executed by Grantor in
favor of Beneficiary and all amounts payable under any other document or
instrument executed by Grantor, securing, evidencing or relating to the Sublease
and such other documents and instruments being hereinafter collectively referred
to as the "Secured Documents", in each case as the same may be modified,
amended, or supplemented from time to time including, but not limited to, "Base
Rent", "Additional Rent" and the "Purchase Prices", as such terms are defined in
the Sublease, all sums Beneficiary may advance, pay or incur under or in
connection with the Sublease which are to be reimbursed by Grantor thereunder or
any other sums advanced by Trustee or Beneficiary for the benefit of Grantor
under the Sublease which are to be reimbursed by Grantor thereunder;
2.2.2 All amounts payable by Grantor, under or in
connection with this Trust Deed, as the same may be amended, modified or
supplemented from time to time, including all sums, amounts and expenses which
Trustee or Beneficiary may advance, pay or incur in connection with, or any
other sums advanced by Trustee or Beneficiary for the protection of its security
interests under this Trust Deed;
2.2.3 Any other indebtedness, obligation or agreement
of Grantor when evidenced or set forth in a document or instrument executed by
Grantor reciting that it is secured by this Trust Deed; and
2.2.4 Payment of any taxes, assessments, insurance
premiums, costs, attorney fees, prior liens, or other charges reasonably
necessary to be paid by Beneficiary for the protection of the lien of this Trust
Deed, and all other advances Beneficiary is permitted to make hereunder.
3. COVENANTS OF THE GRANTOR. To protect the security of this Trust
Deed, Grantor promises, covenants, agrees, represents and warrants to
Beneficiary as follows:
3.1 Payment and Performance. Grantor will perform all of its
obligations under this Trust Deed, the Sublease and any other of the Secured
Documents at the times and in the manner stated in the Sublease and any other of
the Secured Documents. All amounts due Beneficiary under the Sublease or any
other of the Secured Documents shall be hereafter referred to as the "Debt."
4
3.2 Insurance.
3.2.1 Casualty Insurance. Grantor will keep the Land,
Improvements, and Equipment and Fixtures insured at all times at no cost to
Beneficiary for the benefit of Trustee and Beneficiary to the extent and in the
manner described in the Sublease and for the coverages described in the
Sublease, naming Trustee and Beneficiary as loss payees or additional insureds,
as appropriate.
3.3 Taxes. Grantor shall pay when due all (1) taxes,
assessments, utility charges, water and sewer charges of any kind (except
Landlord's Taxes, as defined in the Sublease); (2) payments of any kind in lieu
thereof which may be required by law; and (3) governmental charges and
impositions of any kind whatsoever for which lien rights exists, which may now
or hereafter be assessed or levied upon any part of the Property (all such
charges and payments are hereinafter collectively referred to as "Taxes").
Grantor will deliver to Beneficiary, at its request, receipts for the payment of
Taxes when paid.
3.4 Condemnation.
3.4.1 Grantor, promptly upon obtaining knowledge of
any pending or threatened institution of any proceedings for the condemnation of
the Land or Improvements, or any part thereof or interest therein, or of any
right of eminent domain, or of any other proceedings arising out of injury or
damage to or decrease in the value of the Land or Improvements (including a
change in grade of any street), or any part thereof or interest therein, will
notify Beneficiary of the threat or pendency thereof and the following
provisions shall apply.
3.4.2 Beneficiary shall have the right to intervene
and participate in any eminent domain proceedings unless prohibited by the court
having jurisdiction, in which event Grantor shall consult with Beneficiary in
all matters pertaining to the adjustment, compromise or settlement of such
proceeding and Grantor shall not enter into any agreement with respect to such
matters without the prior written consent of Beneficiary. Grantor further agrees
to execute and deliver upon request any other instruments deemed necessary by
Beneficiary to confirm or assign to Beneficiary all awards and other
compensation to be made for any taking of the Property under eminent domain
proceedings.
3.4.3 If the amount of all compensation, awards,
proceeds and other payments or relief in connection with such condemnation,
including without limitation proceeds of sale in lieu of condemnation, made or
granted to Grantor (collectively, the "Proceeds") is reasonably expected to be
in excess of $100,000, all Proceeds and all judgments, decrees and awards for
injury or damage to the Land and Improvements are hereby assigned to Beneficiary
and shall be paid to Beneficiary to be held and disbursed as
5
hereinafter set forth. Grantor agrees to execute and deliver such further
assignments thereof as Beneficiary may request to effectuate the foregoing and
authorizes Beneficiary to collect and receive the same for disbursement as
hereinafter set forth.
3.4.4 In the event of a condemnation of all or
substantially all of the Land and Improvements, or without regard to the portion
of the Land and Improvements subject to condemnation, if an Event of Default
(defined below) hereunder shall have occurred and be continuing:
(a) Beneficiary shall be entitled to all
Proceeds of such condemnation made or granted to Grantor (but not to any
compensation, award or other payment or relief made or granted for the benefit
of tenants of the Improvements) and, if an Event of Default shall have occurred
and be continuing, Beneficiary shall be entitled, at Beneficiary's option, to
commence, appear in and prosecute in its own name, any action or proceedings.
All such Proceeds shall be deemed assigned to Beneficiary to the extent of any
sums then secured by this Trust Deed, and Grantor agrees to execute such further
assignments of the Proceeds as Beneficiary or Trustee may require.
(b) Beneficiary shall apply all such Proceeds,
after deducting therefrom all costs and expenses, (regardless of the particular
nature thereof and whether incurred with or without suit), including reasonable
attorneys' fees, incurred by it in connection with the collection of such
Proceeds, to the Debt secured by this Trust Deed, in such order as Beneficiary
may determine in its sole discretion. Unless otherwise required by applicable
law, such application or release shall not, by itself, cure or waive any Event
of Default hereunder or notice of default under this Trust Deed or any Secured
Document or invalidate any act done pursuant to such notice. After payment in
full of all Debt, any excess Proceeds shall be delivered to Grantor for
disposition in the manner set forth in the Sublease.
3.4.5 If an Event of Default shall not have occurred
hereunder which is continuing and in the event of a condemnation of less than
all or substantially all of the Land and/or Improvements, the following
provisions shall apply:
(a) In the event that such Proceeds are in an
amount less than $100,000, Grantor shall be entitled to receive all such
Proceeds provided that Grantor applies such Proceeds to the payment of the costs
and expenses of repairing and restoring the Land and Improvements.
(b) In the event that such Proceeds are in the
amount of $100,000 or more, the Proceeds shall be paid to and shall be disbursed
by Beneficiary in the same manner, for the same purposes and subject to the same
requirements as are applicable to insurance proceeds pursuant to the provisions
hereof.
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3.4.6 If an Event of Default shall have occurred
hereunder which is continuing, Beneficiary shall have the right to settle,
adjust or compromise any claim in connection with a condemnation of the Land
and/or Improvements in its sole discretion. If an Event of Default shall not
have occurred hereunder and be continuing then: (a) Grantor may settle, adjust
or compromise any claim which is reasonably expected to be in an amount less
than $100,000; and (b) with respect to any claim which is reasonably expected to
be in the amount of $100,000 of more, Beneficiary and Grantor shall each consult
and cooperate with the other and each shall be entitled to participate in all
meetings and negotiations with respect to the settlement of such claim. Grantor
at its expense shall deliver to Beneficiary copies of all papers served in
connection with such condemnation. Any adjustment or settlement by Grantor of
any claim which is in an amount of $100,000 or more shall be subject to the
reasonable approval of Beneficiary.
3.4.7 Notwithstanding any condemnation, taking or
other proceeding referred to in this Section 3.4 causing injury to or decrease
in value of the Property (including a change in grade of any street), or any
interest therein, Grantor shall continue to pay and perform all of its
obligations as provided herein. Any reduction in the obligations of Grantor
hereunder resulting from the application to such obligations of any proceeds,
judgments, decrees or awards shall be deemed to take effect only on the date of
receipt by Beneficiary of such proceeds, judgments, decrees or awards and their
application against the obligations; provided, that if prior to the receipt by
Beneficiary of such proceeds, judgments, decrees or awards the Property shall
have been sold on foreclosure of this Trust Deed, or shall have been transferred
by a deed in lieu of foreclosure of this Trust Deed, Beneficiary shall have the
right to receive the same to the extent of any deficiency following such sale,
with legal interest thereon together with attorneys' fees and disbursements
incurred by Trustee and Beneficiary in connection with the collection thereof.
3.5 Books, Records and Accounts. Grantor will keep
and maintain proper and accurate books, records and accounts reflecting all
items of income and expense received or paid by Grantor or any other person in
connection with the Property and all business operations conducted at or from
the Property.
3.6 Security Agreement. This Trust Deed is both a
real property mortgage and a security agreement and is intended to be effective
as a financing statement pursuant to the Oregon Uniform Commercial Code with
respect to the Equipment and Fixtures and all items of personal property that
constitute a portion of the Property described herein. Beneficiary is the
secured party and Grantor is the debtor with respect to this financing
statement, and the mailing addresses of the secured party and the debtor for the
purpose of the financing statement are set forth in Section 6.3 of this Trust
Deed. A photocopy of this Trust Deed shall have the
7
same effect as an original. Upon request Grantor shall execute and deliver to
Beneficiary any security agreement, financing or continuation statement or other
document Beneficiary deems necessary to protect or perfect its lien on the
Equipment and Fixtures and other personal property. Grantor shall pay all filing
fees and other costs, disbursements, expenses and reasonable attorney fees
incurred by Beneficiary in connection therewith. In the event of default,
Grantor shall assemble the Equipment and Fixtures and personal property and make
them available to Beneficiary. In the event of default, Beneficiary shall have
the rights and remedies of a secured party under the Uniform Commercial Code of
Oregon.
3.7 Damage and Destruction.
3.7.1 Grantor's Obligations. In the event of any
material damage to or loss or material destruction of the Land or Improvements,
Grantor shall promptly notify Beneficiary of such event.
3.7.2 Beneficiary's Rights; Application of Proceeds.
In the event that any portion of the Land or Improvements is so damaged,
destroyed or lost, and any such damage, destruction or loss is covered, in whole
or in part, by insurance described in Article 9 of the Sublease, then the
following provisions shall apply:
(a) If an Event of Default has occurred
hereunder which is continuing, (i) Beneficiary may, but shall not be obligated
to, make proof of loss if not made promptly by Grantor, and Beneficiary is
hereby authorized and empowered by Grantor to settle, adjust or compromise any
claims for damage, destruction or loss thereunder, and (ii) each insurance
company concerned is hereby authorized and directed to make payment therefor
directly to Beneficiary, to be applied, at Beneficiary's option, to the
obligations then secured hereby, in such order as Beneficiary may determine in
its sole discretion. Unless otherwise required by law, such application to the
obligations by Beneficiary of such payments shall not, by itself, cure or waive
any Event of Default hereunder or notice of default under this Trust Deed or any
Secured Document or invalidate any act done pursuant to such notice.
(b) If no Event of Default hereunder has
occurred which is continuing, and if such proceeds are reasonably expected to be
$100,000 or less, Grantor shall be entitled to receive all such proceeds
provided that Grantor applies such proceeds to the restoration, replacement, and
rebuilding of that portion of the Land or Improvements so damaged, destroyed or
lost in accordance with the provisions of Article 17 of the Sublease.
(c) If such proceeds are reasonably expected
to exceed $100,000 and if an Event of Default has not occurred
8
hereunder which is continuing, then if Grantor elects not to restore the damage,
the insurance proceeds shall be paid to the Beneficiary and applied to the
reduction of the obligations of Grantor hereunder. If Grantor elects to restore
the damage, the proceeds shall be paid to the Escrow Agent (as defined in
Section 17.3 of the Sublease) and Beneficiary shall apply all such insurance
proceeds to the restoration, replacement and rebuilding of the damaged portion
of the Land and/or Improvements, and such restoration, replacements and
rebuilding shall be accomplished, upon satisfaction of each and all of the
conditions, if any, in Section 17.3 of the Sublease.
3.7.3 Effect of the Indebtedness. Any reduction in
the Grantor's obligations hereunder resulting from the application to such
obligations of insurance proceeds shall be deemed to take effect only on the
date of receipt by Beneficiary of such proceeds and the application of such
proceeds to the obligations; provided that if prior to the receipt by
Beneficiary of such proceeds, the Property shall have been sold on foreclosure
of this Trust Deed, or shall have been transferred by deed in lieu of
foreclosure of this Trust Deed, notwithstanding any limitation on Grantor's
liability contained herein or in the Secured Documents, Beneficiary shall have
the right to receive the same to the extent of any deficiency following such
sale or conveyance, together with attorneys' fees and disbursements incurred by
Trustee and Beneficiary in connection with the collection thereof. After payment
in full of all of Grantor's obligations hereunder, any excess insurance proceeds
shall be delivered to Grantor for disposition in the manner set forth in the
Sublease.
4. DEFAULT
4.1 Events of Default. The term "Event of Default" as used in
this Trust Deed shall mean the occurrence of an "Event of Default" under the
Sublease.
5. REMEDIES. When an Event of Default occurs, Beneficiary shall have
the following remedies, or any other remedy set forth in the Secured Documents,
each of which shall be distinct and cumulative to any other right or remedy
under this Trust Deed or afforded by law or equity, and may be exercised
concurrently, independently or successively:
5.1 Acceleration. Beneficiary may declare, without demand or
notice to Grantor, the outstanding amount of the Debt and any and all other
obligations under the Secured Documents, including interest accrued thereon, to
be immediately due and payable.
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5.2 Foreclosure.
5.2.1 Judicial Foreclosure. Beneficiary may proceed
to foreclose this Trust Deed as a Mortgage. Beneficiary may exercise its rights
as a secured party for all or any portion of the Debt which is then due and
payable, subject to the continuing lien of this Trust Deed for the balance not
then due and payable. Further, Beneficiary may exercise its right to foreclose
on all or any portion of the Property assigned herein. Should the proceeds of
the resulting execution sale be insufficient to satisfy the sums owing the
Beneficiary, then the Beneficiary shall be entitled to a deficiency judgment for
the amount remaining unsatisfied, to the extent permitted under applicable law.
5.2.2 Foreclosure by Power of Sale.
(a) In the event the Beneficiary elects to
foreclose this Trust Deed by advertisement and sale under applicable Oregon law,
the Beneficiary or the Trustee shall execute and cause to be recorded his
written notice of default and his election to sell the Property to satisfy the
obligations secured hereby, whereupon the Trustee shall fix the time and place
of sale, give notice thereof as then required by law and proceed to foreclose
this Trust Deed in the manner provided by law. In either event, pending the
sale, the Beneficiary or the Trustee may obtain the appointment of a receiver.
(b) Should the Beneficiary elect to foreclose
by advertisement and sale, and, at any time prior to five days before the date
set by the Trustee for the Trustee's sale, the Grantor or other person so
privileged by Oregon law may pay to the Beneficiary or his successors in
interest, respectively, the entire amount then due under the terms of the Trust
Deed and the Debt secured thereby (including costs and expenses incurred in
enforcing the terms of the Secured Documents and the Trustee's and attorney's
fees not exceeding the amounts provided by law) other than such portion of the
principal as would not then be due had no Event of Default occurred, and thereby
cure the Event of Default, in which event all foreclosure proceedings shall be
dismissed by the Trustee.
(c) Otherwise, the sale shall be held on the
date and at the time and place designated in the notice of sale or the time to
which said sale may be postponed as provided by law. The Trustee may, at his
option, sell the Property either in one parcel or in separate parcels and shall
sell the parcel or parcels at auction to the highest bidder for cash, payable at
the time of sale. The Trustee shall deliver to the purchaser his deed in form as
required by law conveying the Property so sold, but without any covenant or
warranty, express or implied. The recitals in the deed of any matters of fact
shall be conclusive proof of the truthfulness thereof. Any person, excluding the
Trustee, but
10
including the Grantor and the Beneficiary, may purchase at the sale.
(d) When the Trustee sells pursuant to the
powers provided herein, the Trustee shall apply the proceeds of sale to payment
of (1) the expenses of sale, including the compensation of the Trustee and a
reasonable charge by the Trustee's attorney, (2) to the full satisfaction of all
obligations secured by the Trust Deed and evidenced by the Secured Documents,
(3) to all persons having recorded liens subsequent to the interest of the
Trustee in the Trust Deed as their interests may appear in the order of their
priority and (4) the surplus, if any, to whomever may be lawfully entitled to
receive the same.
5.3 Possession of Property; Appointment of Receiver.
5.3.1 Without notice to Grantor (unless such notice
is required by applicable law in which case such notice is hereby waived by
Grantor to the extent permitted by applicable law) and without regard to the
adequacy of the security for the Debt, proof of depreciation of the value of the
Property or the financial condition of Grantor, Beneficiary may, at its option:
(a) By itself or by its agent, with or without
bringing any action, suit or proceeding, immediately enter upon and take
possession and control of the Property or any party thereof;
(b) Make application to a court of competent
jurisdiction for and obtain the immediate appointment of a receiver authorized
to immediately enter upon and take possession and control of the Property;
(c) Without taking possession and control of
the Property, immediately commence action to collect directly any Property
Income due to Grantor with full rights and powers to notify all parties liable
therefor to make payments directly to Beneficiary or its agents. Beneficiary
shall have the further power and authority to sue for or otherwise collect and
receive all Property Income and lease payments.
5.3.2 Grantor waives any further requirement that
Beneficiary provide any bond, surety, or other security in connection with any
said action.
5.3.3 In the event Beneficiary, its agent, or a
receiver enters upon and takes possession and control of the Property, said
person or entity shall have all of Grantor's rights and powers with respect to
the Property in addition to such other rights and powers as may be authorized,
including without limitation the right and power to:
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(a) hold, store, use operate, manage and
control the Property and conduct the business which is or may be conducted
therefrom;
(b) make all necessary and proper maintenance,
repairs, renewals, replacements, additions, betterments and improvements to the
Property, complete construction on the Property and purchase or otherwise
acquire additional fixtures, personalty and other property;
(c) obtain such insurance with respect to the
Property and the business operations conducted therefrom as may be determined
necessary;
(d) manage and operate the Property and the
business conducted therefrom and exercise all the rights and powers of Grantor
in its name or otherwise with respect to the same;
(e) enter into agreements with others to
exercise the powers herein granted;
(f) collect and receive all Property Income;
(g) enforce all terms of existing leases and
all other contracts or agreements pertaining to the Property or any business
operations conducted therefrom;
(h) enter into such new or additional leases
or other contracts or agreements pertaining to the Property or the business
operations conducted at or from the Property as such person or entity may
determine necessary in its sole discretion; and
(i) borrow money for the benefit of the
Property.
5.3.4 Beneficiary, its agents or any receiver shall
in no event be liable or accountable for more moneys than actually are received
from the Property during the period which Beneficiary, its agent or any receiver
actually is in possession and control of the Property. Neither Beneficiary, its
agents or any receiver shall be liable or accountable in any manner for the
failure to collect Property Income for any reason whatsoever.
5.3.5 Grantor shall pay monthly, in advance, to
Beneficiary, its agent or any receiver in possession and control of the Property
the fair and reasonable rental value (based on the use the Property is then
being put to) for all or any part of the Property which is in the use, occupancy
and possession of Grantor. Grantor shall pay Beneficiary all costs, expenses and
liabilities of every character incurred by Beneficiary in managing, operating,
and maintaining the Property that is not otherwise paid from
12
Property Income or lease payments, including without limitation loans made to
the receiver.
5.3.6 In the event of foreclosure and in accordance
with applicable law, Beneficiary, its agent or any receiver having possession or
control of the Property may remain in possession of the Property until the
Property is redeemed or until the expiration of all redemption rights.
5.3.7 Beneficiary, its agents or the receiver shall
incur no liability for, nor shall Grantor assert any claim or set off as the
result of, any action taken while Beneficiary, its agent or the receiver is in
possession of the Property.
5.3.8 Beneficiary shall apply Property Income or
other payments to the Debt, but the application of such funds shall be without
waiver of default, and without affecting its right to foreclose this Trust Deed
or exercise any other remedy under the Secured Documents.
5.4 Beneficiary Advances. Beneficiary may, without notice or
demand, pay any amount which Grantor has failed to pay, or perform any act which
Grantor has failed to perform hereunder to the extent such payment or
performance is required under this Trust Deed. In such event the costs,
disbursements, expenses, and reasonable attorney fees in connection therewith
shall be (1) added to the Debt and shall accrue interest thereon at the highest
interest rate allowed under the applicable Secured Documents; (2) payable within
five (5) days of demand by Beneficiary; and (3) secured by the lien of this
Trust Deed.
5.5 No Marshalling. Beneficiary shall not be (1) compelled to
release or be prevented from foreclosing or enforcing this Trust Deed upon all
or any part of the Property, unless the entire Debt has been paid; (2) required
to accept any part or parts of the Property, as distinguished from the entire
whole thereof, as payment of or upon the Debt to the extent of the value of such
part or parts; (3) compelled to accept or allow any apportionment of the Debt to
or among any separate parts of the Property; or (4) prevented from selling the
Property in one or more parcels or as an entirety and in such manner and order
as Beneficiary in its sole discretion may elect.
5.6 Beneficiary's Discretion. Beneficiary, in exercising any
remedy provided herein, may do so whenever it determines in its sole judgment
and discretion exercised in good faith that such payment or performance is
reasonably necessary or desirable to protect the full security intended by this
Trust Deed.
5.7 No Waiver.
5.7.1 Time is of the essence in this Trust Deed, but
any delay, omission or failure by Beneficiary to insist upon
13
strict performance by Grantor of any of the covenants, conditions and agreements
herein set forth, or to exercise any right or remedy available to it upon the
occurrence of any Event of Default hereunder, shall not impair any such right or
remedy or be considered or taken as a waiver or relinquishment of the right in
the future to insist upon and to enforce, by injunction or other appropriate
legal or equitable remedy, strict compliance by Grantor with all of the
covenants, conditions and agreements herein, or of the right to exercise any
such rights or remedies if such Event of Default by Grantor be continued or
repeated.
5.7.2 Beneficiary may, without notice to or the
consent of any of the holders of any subordinate lien on the Property or any
other person (a) release part of the security described herein, (b) release the
obligation of any person primarily or contingently liable for the Debt secured
hereby, (c) extend the time for payment or otherwise modify the terms of the
Debt or this Trust Deed, and (d) taken any additional security for the Debt. No
such release, extension, modification or additional security shall impair or
affect the lien of this Trust Deed or its priority over any subordinate lien.
5.7.3 Neither Grantor nor any other person primarily
or contingently liable for the payment of the Debt secured hereby shall be
relieved of any liability by reason of (a) any such release, extension,
modification or taking of additional security; (b) the failure of Beneficiary to
comply with any request of Grantor or any such person to foreclose this Trust
Deed or exercise any other remedy available hereunder or under or with respect
to the Debt; or (c) any agreement or stipulation between any subsequent owner of
the Property and Beneficiary extending the time of payment or modifying the
terms of the Debt or this Trust Deed.
5.8 Power of Attorney. Grantor hereby irrevocably appoints,
grants, and constitutes Beneficiary its attorney-in-fact, coupled with an
interest, to execute, deliver, and submit all applications, requests, forms, or
reports of any kind for all desirable or necessary licenses, permits, approvals,
authorizations, tax credits or abatements or benefits, of any kind relating,
applicable to, or affecting the use and enjoyment of, or construction on, or the
business operations conducted at or from the Property.
5.9 No Merger. In the event Beneficiary shall acquire title to
the Property, there shall be no merger of the lien of this Trust Deed with the
fee or ownership interest in the Property. This Trust Deed shall continue as an
existing and enforceable lien securing the Debt until the same shall be released
of record by Beneficiary.
5.10 Fees and Costs. Grantor shall pay all costs,
disbursements, expenses and reasonable attorney fees incurred by
14
Beneficiary in protecting or enforcing the lien of this Trust Deed, whether or
not suit or action is actually commenced (collectively referred to as "costs").
Such costs include without limitation recording fees, costs of title and lien
searches, preparation of surveys, appraisal fees, and attorney fees,
negotiations, proceedings in the trial courts and before other tribunals, and on
any appeal from any of them. Protection or enforcement of the lien of this Trust
Deed shall include, without limitation, negotiations with Grantor or any third
party, administrative proceedings, bankruptcy proceedings, condemnation
proceedings, conveyances in lieu of foreclosure, foreclosure proceedings,
receivership actions, and post-judgment collection efforts.
6. MISCELLANEOUS PROVISIONS
6.1 Governing Law. This Trust Deed shall be governed by and
construed, interpreted, regulated and enforced in accordance with the applicable
laws of the State of Oregon. All covenants, conditions and agreements herein
shall run with the land, and shall be binding upon and inure to the benefit of
the respective heirs, successors and assigns of Beneficiary and Grantor.
6.2 Modification. No modification, amendment, change, or
discharge of any term or provision of this Trust Deed shall be valid unless it
is in writing and signed by Grantor and Beneficiary.
6.3 Notice. Any notice, demand, consent, approval, direction,
agreement or other communication (any "Notice") required or permitted hereunder
or under the Secured Documents shall be in writing and shall be validly given
and effectively served if mailed by United States mail, first class or certified
mail, return receipt requested, postage prepaid, or by hand delivery by a
recognized courier service, or by next day delivery by recognized overnight
courier service, courier charges prepaid:
(a) If to Grantor:
Integrated Device Technology, Inc.
2975 Stender Way
Santa Clara, CA 95054
Attn: Mika Murakami, Treasurer
With a copy to:
Wilson, Sonsini, Goodrich & Rosati
695 Page Mill Road
Palo Alto, CA 94304
Attn: Bradford C. O'Brien, Esq.
15
And with a copy to:
Jack Menache
4073 Eagle Nest Lane
Danville, CA 94506-5811
And with a copy to:
Preston, Gates & Ellis
3200 U.S. Bancorp Tower
111 S.W. Fifth Avenue
Portland, OR 97204
Attn: Randall D. Bateman
(b) If to Beneficiary:
Sumitomo Bank Leasing and Finance, Inc.
One World Trade Center, Suite 8545
New York, NY 10048
Attn: Chief Credit Officer
With a copy to:
Landels, Ripley & Diamond
350 Steuart Street
San Francisco, CA 94105-1250
Attention: Bruce W. Hyman, Esq.
Any Notice shall be deemed to have been validly given and effectively served
hereunder three (3) days after so mailed.
Any person shall have the right to specify, from time to time, as its
address or addresses for purposes of this Trust Deed, any other address or
addresses. Such Notice of change of address or addresses shall be effective only
upon actual receipt.
6.4 Invalid Provisions. In the event any portion hereof shall
be ruled invalid by any court of competent jurisdiction, the invalidity of such
portion shall not affect any of the remaining provisions hereof. The invalid
portion shall be severed and all other terms and provisions herein shall
continue to be effective and binding, and any invalid portion shall be reduced
in scope to the extent necessary to be valid.
6.5 Additional Advances and Disbursements. Grantor agrees that
if an Event of Default occurs hereunder and is continuing, then Trustee and/or
Beneficiary shall have the right, but not the obligation, in Grantor's name or
in its or their own name, and without notice to Grantor, to enter upon and take
possession of the Property in accordance with applicable law to such extent and
as often as either of them may deem necessary or desirable. Except as otherwise
provided by law, no such exercise shall be deemed to have cured such Event of
Default with respect
16
thereto. All reasonable sums advanced and all reasonable expenses incurred by
Trustee and/or Beneficiary in connection with such exercise, and all other
reasonable sums advanced or expenses incurred by Beneficiary hereunder or under
applicable law (whether required or optional and whether indemnified hereunder
or not) shall be part of the obligations of Grantor hereunder, shall bear
interest at the Default Rate (defined in the Sublease) from the date of
disbursement until paid and shall be secured by this Trust Deed. Trustee and/or
Beneficiary, upon making any such advance, shall be subrogated to all of the
rights of the person receiving such advance.
6.6 Other Expenses. Grantor will pay or, on demand, reimburse
Trustee and Beneficiary for the payment of, all recording and filing fees,
abstract fees, title insurance premiums and fees, Uniform Commercial Code search
fees, escrow fees, reasonable attorneys' fees and disbursements and all other
reasonable costs and expenses incurred by Grantor, Trustee and/or Beneficiary
prior to the time this Trust Deed is recorded in connection with the granting,
administration, enforcement and closing (including the preparation of the
Secured Documents) of the transactions contemplated hereunder or under the
Secured Documents, or otherwise attributable or chargeable to Grantor as owner
of the Property. Notwithstanding anything to the contrary contained herein in
this paragraph, the provisions of this paragraph shall not be deemed or
construed to authorize Beneficiary to undertake, exercise or perform any action
in the administration of the transactions contemplated hereunder not otherwise
(i) authorized by the terms of this Trust Deed or the Secured Documents or (ii)
permitted under applicable law to be undertaken, exercised or performed by a
trust deed beneficiary to protect the security afforded by a deed of trust upon
real property.
Grantor will pay or, on demand, reimburse Trustee and
Beneficiary for the payment of any reasonable costs or expenses (including
attorneys' fees and disbursements) incurred or expended in connection with or
incidental to (i) any Event of Default by Grantor or (ii) the exercise or
enforcement by or on behalf of Trustee and/or Beneficiary of any of their rights
or remedies or Grantor's obligations under this Trust Deed or under the Secured
Documents, including the enforcement, compromise or settlement of this Trust
Deed of the obligations of the defense or assertion of the rights and claims of
Trustee and Beneficiary hereunder in respect thereof, by litigation or
otherwise.
6.7 Indemnity.
(a) Grantor agrees to indemnify and hold harmless Trustee and
Beneficiary from and against any and all losses, liabilities, suits,
obligations, fines, damages, judgments, penalties, claims, charges, costs and
expenses (including attorneys' fees and disbursements) which may be imposed on,
incurred or paid by or asserted against Trustee and/or Beneficiary
17
by reason or on account of, or in connection with, (i) any willful misconduct of
Grantor or any Event of Default by Grantor hereunder, (ii) Trustee's and/or
Beneficiary's good faith and commercially reasonable exercise of any of their
rights and remedies, or the performance of any of their duties, hereunder or
under the Secured Documents to which Grantor is a party, (iii) the construction,
reconstruction or alteration of the Premises by Grantor, (iv) any negligence of
Grantor, or any negligence or willful misconduct of any lessee of the Property
or Improvements, or any of their respective agents, contractors, subcontractors,
servants, employees, licensees or invitees, or (v) any accident, injury, death
or damage to any person or property occurring in, on or about the Premises or
any street, drive, sidewalk, curb or passageway adjacent thereto, in each case
of (i) through (v) above, except for the willful misconduct or gross negligence
of the indemnified person, or any of its agents, contractors, subcontractors,
servants, employees, licensees or invitees. Any amount payable to Trustee,
Beneficiary or counsel for Beneficiary under this paragraph shall be due and
payable within five (5) days after demand therefor and receipt by Grantor of a
statement from Trustee, Beneficiary and/or counsel for Beneficiary setting forth
in reasonable detail the amount claimed and the basis therefor, and such amounts
shall bear interest at the Default Rate, as defined in the Sublease, from and
after the date such amounts are paid by counsel for Beneficiary, Beneficiary or
Trustee until paid in full by Grantor. The foregoing indemnification agreement
shall only apply to matters arising as a result of acts or events occurring
prior to the completion of judicial or non-judicial foreclosure sale or
recordation of a reconveyance of this Trust Deed.
(b) Grantor's obligations under this paragraph 6.7 shall not
be affected by the absence or unavailability of insurance covering the same or
by the failure or refusal by any insurance carrier to perform any obligation on
its part under any such policy of covering insurance. If any claim, action or
proceeding is made or brought against Trustee and/or Beneficiary which is
subject to the indemnity set forth in this paragraph, Grantor shall resist or
defend against the same, if necessary in the name of Trustee and/or Beneficiary,
by attorneys for Grantor's insurance carrier (if the same is covered by
insurance) or otherwise by attorneys approved by Beneficiary. Notwithstanding
the foregoing, Trustee and Beneficiary, in their discretion, may engage their
own attorneys to resist or defend, or assist therein, and Grantor shall pay, or,
on demand, shall reimburse Trustee and Beneficiary for the payment of, the
reasonable fees and disbursements of said attorneys.
6.8 Exercise by Trustee. Notwithstanding anything herein to
the contrary, Trustee (a) shall not exercise, or waive the exercise of, any of
its rights or remedies under this Trust Deed (other than its right to
reimbursement) except upon the request of Beneficiary, and (b) shall exercise,
or waive the exercise of, any or all of such rights or remedies upon the request
of Beneficiary and at the direction of Beneficiary as to the manner
18
of such exercise or waiver, provided that Trustee shall have the right to
decline to follow any of such request or direction if Trustee shall be advised
by counsel that the action or proceeding, or manner thereof, so directed may not
lawfully be taken or waived.
6.9 Defeasance. If all of the obligations of Grantor hereunder
shall be paid as the same become due and payable, then and in that event only
all rights hereunder shall terminate and the Property shall become wholly
released and cleared of the liens, security interests, conveyances and
assignments evidenced hereby, upon receipt by Beneficiary of payment of all
obligations of Grantor secured hereby. In such event Trustee shall at the
request of the Grantor, promptly deliver to Grantor, in recordable form, all
such documents as shall be necessary to release the Property from the liens,
security interests, conveyances and assignments created or evidenced hereby.
Notwithstanding anything in the preceding sentence to the contrary, Trustee
shall so release the Property only upon the direction of Beneficiary.
6.10 Provisions as to Payments, Advances.
(a) To the extent that any part of the obligations of Grantor
hereunder are used to pay indebtedness secured by any outstanding lien, security
interest, charge or encumbrance against the Property that is superior to this
Trust Deed, or to pay in whole or in part the purchase price therefor, Trustee
and Beneficiary shall be subrogated to any and all rights, security interests
and liens held by any owner or holder of the same, whether or not the same are
released. Grantor agrees that, in consideration of such payment by Trustee or
Beneficiary, effective upon such payment, Grantor shall and hereby does waive
and release all demands, defenses and causes of action for offsets and payments
with respect to the same.
(b) Any payment made under this Trust Deed by any person at
any time liable for the payment of the obligations of Grantor hereunder, or by
any subsequent owner of the Property or by any person or entity that might be
prejudiced in the event of a failure to make such payment, or by any partner,
stockholder, officer or director thereof, shall be deemed, as between Trustee or
Beneficiary and all such persons, to have been made on behalf of all such
persons.
6.11 Usury Savings Clause. All agreements in this Trust Deed
and in the Secured Documents are expressly limited so that in no contingency or
event whatsoever, whether by reason of advancement or acceleration of maturity
of the obligations of Grantor hereunder, or otherwise, shall the amount paid or
agreed to be paid hereunder for the use, forbearance or detention of money
exceed the highest lawful rate permitted under applicable usury laws, if any.
If, from any circumstance whatsoever, fulfillment of any provision of the
Secured Documents, at the time performance of such provision shall be due, shall
involve transcending the limit
19
of validity prescribed by law which a court of competent jurisdiction may deem
applicable hereto, then, ipso facto, the obligation to be fulfilled shall be
reduced to the limit of such validity and if, from any circumstance whatsoever,
Beneficiary shall ever receive as interest an amount which would exceed the
highest lawful rate, the receipt of such excess shall be deemed a mistake and
shall be cancelled automatically or, if theretofore paid, such excess shall be
credited against the principal amount of the obligations to which the same may
lawfully be credited, and any portion of such excess not capable of being so
credited shall be rebated to Grantor.
6.12 No Merger. If both the lessor's and the lessee's interest
under the Sublease or any other lease shall at any time become vested in any one
person, this Trust Deed and the lien and security interest created hereby shall
not be destroyed or terminated by the application of the doctrine of merger and,
in such event, Trustee and Beneficiary shall continue to have and enjoy all of
the rights and privileges of Trustee and Beneficiary hereunder as to each
separate estate.
6.13 Provisions as to Covenants and Agreements. All of
Grantor's covenants and agreements hereunder shall run with the land.
6.14 Successors and Assigns. The provisions hereof shall be
binding upon Grantor and the heirs, devises, representatives, successors and
assigns of Grantor, including successors in interest of Grantor, in and to all
or any part of the Property, and shall inure to the benefit of Trustee,
Beneficiary and their respective heirs, successors, substitutes and assigns. All
references in this Trust Deed to Grantor, Trustee or Beneficiary shall be
construed as including all of such other persons with respect to the person
referred to. Where two or more persons have executed this Trust Deed, the
obligations of such persons shall be joint and several except to the extent the
context clearly indicates otherwise.
6.15 Trustee's Appointment. Trustee accepts this Trust when
this Trust Deed, duly executed and acknowledged, is made public record as
provided by law. Trustee may resign by an instrument in writing addressed to
Beneficiary, or Trustee may be removed at any time with or without cause by an
instrument in writing executed by Beneficiary and duly recorded. In case of the
death, resignation, removal or disqualification of Trustee or if for any reason
Beneficiary shall deem it desirable to appoint a substitute or successor trustee
to act instead of Trustee herein named or any substitute or successor Trustee,
then Beneficiary shall have the right and is hereby authorized and empowered to
appoint a successor Trustee, or a substitute Trustee, without other formality
than appointment and designation in writing executed and acknowledged by
Beneficiary and the recordation of such writing in the office where this Trust
Deed is recorded, and the authority hereby conferred shall extend to the
appointment of other successor
20
and substitute Trustees successively until the obligations of Grantor hereunder
are paid in full or until the Property is sold hereunder. Such appointment and
designation by Beneficiary shall be full evidence of the right and authority to
make the same and of all facts therein recited. If such appointment is executed
on behalf of Beneficiary by an officer of Beneficiary, such appointment shall be
conclusively presumed to be executed with authority and shall be valid and
sufficient without proof of any action by the Trustee or any superior officer of
Beneficiary. Upon the making of such appointment and designation, all of the
estate and title of Trustee in the Property shall vest in the named successor or
substitute Trustee and it shall thereupon succeed to and shall hold, possess and
execute all the rights, powers, privileges, immunities and duties herein
conferred upon Trustee; but, nevertheless, upon the written request of
Beneficiary or of the successor or substitute Trustee, Trustee ceasing to act
shall execute and deliver an instrument transferring to such successor or
substitute Trustee all of the estate and title in the Property of Trustee so
ceasing to act, together with all the rights, powers, privileges, immunities and
duties herein conferred upon Trustee, and shall duly assign, transfer and
deliver any of the properties and moneys held by said Trustee hereunder to said
successor or substitute Trustee. All references herein to Trustee shall be
deemed to refer to Trustee (including any successor or substitute, appointed and
designated, as herein provided) from time to time acting hereunder. Grantor
hereby ratifies and confirms any and all acts which Trustee herein named or its
successor or successors, substitute or substitutes, in this Trust Deed, shall do
lawfully by virtue hereof.
6.16 Subordination. Provided no Event of Default or event
which would constitute an Event of Default but for the passage of time or the
giving of notice, or both, Beneficiary agrees to subordinate the lien of this
Trust Deed to any easements created by Grantor under the Sublease, provided
Grantor reimburses Beneficiary for all costs and expenses incurred in connection
therewith.
6.17 Use. Grantor hereby represents, warrants and covenants
that none of the Property is used principally or at all for agricultural or
farming purposes. The Property does not constitute the homestead of Grantor.
6.18 Interpretation. The following rules of construction shall
be applicable for all purposes of this Trust Deed and all documents or
instruments supplemental hereto, unless the context otherwise requires:
(a) All references herein to numbered Articles or Sections or
to lettered Exhibits are references to the Articles and Sections hereof and the
Exhibits annexed to this Trust Deed, unless expressly otherwise designated in
context.
21
(b) The terms "include", "including" and similar terms shall
be construed as if followed by the phrase "without being limited to."
(c) The term "knowledge" or "to best of knowledge" when and if
used in connection with a representation or warranty made by Grantor means that
Grantor and/or the representatives of Grantor have interviewed such persons,
representatives, and responsible employees of Grantor, of the constituent
general partners of Grantor and of the constituent general partners of such
general partners, as may be applicable, as such representatives have determined
are likely, in the ordinary course of their respective duties, to have knowledge
of the matters set forth herein.
(d) The terms "Property" and "Premises" shall be construed as
if followed by the phrase "or any part thereof."
(e) The term "obligations" shall be construed as if followed
by the phrase "or any other sums secured hereby, or any part thereof."
(f) Words of masculine, feminine or neuter gender shall mean
and include the correlative words of the other genders, and words importing the
singular number shall mean and include the plural number, and vice versa.
(g) The term "person" shall include natural persons, firms,
partnerships, corporations and any other public and private legal entities.
(h) The term "provisions," when used with respect hereto or to
any other document or instrument, shall be construed as if preceded by the
phrase "terms, covenants, agreements, requirements, conditions and/or."
(i) All Article, Section and Exhibits captions herein are used
for convenience and reference only and in no way define, limit or describe the
scope or intent of, or in any way affect, this Trust Deed.
(j) All Exhibits to this Trust Deed are hereby incorporated in
this Trust Deed.
(k) All obligations of Grantor hereunder shall be performed
and satisfied by or on behalf of Grantor at Grantor's sole cost and expense.
(l) The term "Sublease" shall mean "tenancy, subtenancy, lease
or sublease," the term "lessor" shall mean "landlord, sublandlord, owner, lessor
and sublessor" and the terms "lessee" or "tenant" shall mean "tenant, subtenant,
lessee and sublessee."
22
6.19 Verify Use. THIS INSTRUMENT WILL NOT ALLOW USE OF THE
PROPERTY DESCRIBED IN THIS INSTRUMENT IN VIOLATION OF APPLICABLE LAND USE LAWS
AND REGULATIONS. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON
ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR
COUNTY PLANNING DEPARTMENT TO VERIFY APPROVED USES AND TO DETERMINE ANY LIMITS
ON LAWSUITS AGAINST FARMING OR FOREST PRACTICES AS DEFINED IN ORS 30.930.
[Signatures begin on the next page.]
23
IN WITNESS WHEREOF, Grantor has caused this instrument to be
executed and delivered on the day and year first above written.
GRANTOR:
INTEGRATED DEVICE TECHNOLOGY, INC.,
a Delaware corporation
By:
-----------------------------------------
Its:
-------------------------------------
By:
-----------------------------------------
Its:
-------------------------------------
[All signatures must be acknowledged.]
24
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
---------------------------------
On the day of January, 1995, before me, the undersigned, a Notary
Public in and for said State, personally appeared and
, 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.
-------------------------------------------
Notary Public
(SEAL)
25
Exhibit A
Legal Description
Real property being a portion of Lots 6 and 8 of DAWSON CREEK CORPORATE PARK,
recorded in Plat Book 67, Page 34, records of Washington County, Oregon, in the
City of Hillsboro, in the County of Washington and State of Oregon, more
particularly described as follows:
BEGINNING at the Northwest corner of said Lot 8 of DAWSON CREEK CORPORATE PARK;
thence along the West line of said Lot 8, South 00(degree)10'12" West 611.87
feet to the true point of beginning; thence South 89(degree)49'48" East 1037.91
feet; thence South 57(degree)46'34" East 154.15 feet; thence South
00(degree)10'12" West 613.61 feet to a point on the Northerly right of way line
of Northeast Brookwood Parkway as shown on said plat of DAWSON CREEK CORPORATE
PARK; thence along said Northerly right of way of Northwest Brookwood Parkway
and from a tangent bearing of South 53(degree)48'01" West along the arc of a
nontangent 1414.20 foot radius curve to the right, through a central angle of
19(degree)48'55" an arc distance of 489.09 feet to a point of tangency; thence
continuing along said Northerly right of way line South 73(degree)36'56" West
310.86 feet to the point of curvature with a tangent 100.00 foot radius curve to
the right; thence along the arc of said curve through a central angle of
90(degree)00'00" an arc distance of 157.08 feet to a point of tangency on the
Easterly right of way line of Northeast Dawson Creek Drive as shown on said plat
of DAWSON CREEK CORPORATE PARK; thence along said Easterly right of way line
North 16(degree)23'04" West 65.00 feet to the point of curvature with a tangent
1315.32 foot radius curve to the left; thence continuing along said Easterly
right of way and along said curve to the left through a central angle of
32(degree)44'39" an arc distance of 751.70 feet to a point on the Westerly line
of said Lot 8; thence along said Westerly line North 40(degree)52'16" East 77.50
feet to a point of curvature with a tangent 250.00 foot radius curve to the
left; thence along the arc of said curve through a central angle of
40(degree)42'04" an arc distance of 177.59 feet to a point of tangency; thence
North 00(degree)10'12" East 27.00 feet to the true point of beginning.
26
GROUND LEASE
THIS GROUND LEASE ("Lease") is made and entered into as of the day of
January, 1995, by and between INTEGRATED DEVICE TECHNOLOGY, a Delaware
corporation ("Landlord") and SUMITOMO BANK LEASING AND FINANCE, INC., a Delaware
corporation ("Tenant").
ARTICLE I.
LEASED PREMISES
1.1 Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, that certain parcel of land ("Land") located in the City of Hillsboro,
County of Washington, State of Oregon, as more particularly described in Exhibit
A attached hereto and by this reference incorporated herein (the "Premises"),
upon and subject to the terms and provisions of this Lease.
ARTICLE II.
TERM
2.1 The term of this Lease ("Term") shall be for fifty (50) consecutive
years and shall expire on January , 2045 (the "Expiration Date").
1
ARTICLE III.
USE/COMPLIANCE WITH LAW
3.1 The Land shall be used solely for the purpose of constructing
certain improvements pursuant to the Sublease (defined below) on the Land upon
such terms and conditions as agreed by Landlord and its subtenant under the
sublease of the land and lease of the improvements executed by Landlord and
Tenant of even date herewith (the "Sublease") and for any other legal use.
ARTICLE IV.
RENTAL
4.1 On or before the execution of this Lease by Tenant, Tenant shall
pay to Landlord as rental for the Premises, the sum of One Dollar ($1.00) as
Tenant's "Base Rent" for the entire Term of the Lease, payable at the address
set forth in Article 12 below.
ARTICLE V.
TAXES
5.1 All taxes other than Landlord's Taxes (as defined in the Sublease)
levied and assessed against the Premises shall be paid by Landlord, and Tenant
shall be indemnified and saved harmless by Landlord from and against payment of
the same.
2
ARTICLE VI.
INSURANCE
6.1 Tenant shall have no obligation to carry any insurance covering the
Premises.
ARTICLE VII.
IMPROVEMENTS
7.1 All Improvements constructed on the Premises either prior to or
during the Term of this Lease shall be the property of Tenant during the Term
hereof, except as otherwise provided in the Sublease and subject to the rights
of the subtenant under the Sublease.
ARTICLE VIII.
REPAIRS AND MAINTENANCE
8.1 Tenant shall not be obligated to make any repairs to the Premises
or to maintain the Premises during the Term of this Lease.
ARTICLE IX.
ATTORNEYS' FEES
9.1 In the event that at any time during the Term of this Lease either
Landlord or Tenant shall institute any action or proceeding against the other
relating to the provisions of this Lease, or any default hereunder, then and in
that event, the unsuccessful party in such action or proceeding agrees to
3
reimburse the successful party herein for the reasonable expenses of attorneys'
fees and costs incurred therein by the successful party.
ARTICLE X.
SCOPE OF THE AGREEMENT
10.1 This Lease and the Transaction Documents (as defined in the
Sublease) are and shall be considered to be the only agreements between the
parties hereto concerning the subject hereof. All negotiations and oral
agreements acceptable to both parties are included therein.
ARTICLE XI.
CAPTIONS AND TERMS
11.1 The captions of Articles of this Lease are for convenience only
and are not a part of this Lease and do not in any way limit or amplify the
terms and provisions of this Lease.
ARTICLE XII.
NOTICES AND PAYMENT OF RENT
12.1 Wherever in this Lease it shall be required or permitted that
notice or demand be given or served by either party to this Lease to or on the
other, such notice or demand shall be given or served and shall not be deemed to
have been duly given or served unless in writing and forwarded by private
4
delivery with acknowledged receipt, commercial overnight courier, or by
certified or registered mail, return receipt requested, postage prepaid,
addressed as follows:
To Landlord:
Integrated Device Technology, Inc.
2975 Stender Way
Santa Clara, CA 95054
Attn: Mika Maurakami, Treasurer
With a copy to:
Wilson, Sonsini, Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304
Attn: Bradford C. O'Brien, Esq.
And With a copy to:
Jack Menache
4073 Eagle Nest Lane
Danville, CA 94506-5811
To Tenant:
Sumitomo Bank Leasing and Finance, Inc.
277 Park Avenue
New York, New York 10172
Attn: Chief Credit Officer
With a copy to:
Landels, Ripley & Diamond
350 Steuart Street
San Francisco, CA 94105-1250
Attention: Bruce W. Hyman, Esq.
All rental and other payments shall be paid by Tenant to Landlord at the address
above provided. Either party may change its address by written notice to the
other delivered in accordance with this Article 12.
5
ARTICLE XIII.
OBLIGATIONS OF SUCCESSORS
13.1 The parties hereto agree that all the provisions hereof are to be
construed as covenants and agreements as though the words importing such
covenants and agreements were used in each separate paragraph hereof, and that
all of the provisions hereof shall bind and inure to the benefit of the parties
hereto, and their respective heirs, legal representatives, successors and
assigns.
ARTICLE XIV.
WAIVER OF DEMAND FOR POSSESSION
14.1 Tenant waives any demand for possession of the Premises and any
demand for payment of Base Rent and notice of intent to re-enter the Premises,
or of intent to terminate this Lease, and waives any and every other notice or
demand prescribed by any applicable statutes or laws.
ARTICLE XV.
SURRENDER
15.1 Tenant covenants that it will vacate the Premises and surrender to
Landlord all Improvements thereon immediately upon the expiration or sooner
termination of the Lease. If Tenant remains in possession of the Premises or any
part thereof after the termination of the Term, Landlord shall have the
immediate
6
right of re-entry and may, at its option, remove all persons and property from
the Premises and such property may be removed and stored in a public warehouse
or elsewhere at the cost of, and for the account of Tenant, all without service
of notice to resort to legal process to remove Tenant through summary
proceedings and without being guilty of trespass, or becoming liable for any
loss or damage which may be occasioned thereby.
ARTICLE XVI.
HOLDING OVER
16.1 In the event Tenant remains in possession of the Premises after
the expiration of the Lease and without the execution of a new Lease, Tenant
shall be deemed to be occupying the Premises as a Tenant from month to month,
subject to all of the conditions, provisions and obligations of this Lease
insofar as the same can be applicable to a month to month tenancy.
ARTICLE XVII.
MISCELLANEOUS
17.1 If any term or provision of this Lease or any application thereof
shall be invalid or unenforceable, the remainder of this Lease and any other
application of such term or provision shall not be affected thereby. Time is of
the essence hereof. This Lease shall be construed and enforced in accordance
with the laws of the State of Oregon. This Lease may not be
7
amended or modified in any respect whatsoever except by an instrument in writing
signed by the parties hereto. This Lease may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall comprise but a single instrument.
[Signatures begin on next page.]
8
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
as of the day and year first above written.
LANDLORD:
INTEGRATED DEVICE TECHNOLOGY, INC.,
INC., a Delaware corporation
By:
-----------------------------------
Title:
-----------------------------
By:
-----------------------------------
Title:
-----------------------------
[Signatures continued on next page.]
9
TENANT:
SUMITOMO BANK LEASING AND FINANCE,
INC., a Delaware corporation
By:
-----------------------------------
Title:
-----------------------------
10
EXHIBIT A
LEGAL DESCRIPTION
Real property being a portion of Lots 6 and 8 of DAWSON CREEK CORPORATE PARK,
recorded in Plat Book 67, Page 34, records of Washington County, Oregon, in the
City of Hillsboro, in the County of Washington and State of Oregon, more
particularly described as follows:
BEGINNING at the Northwest corner of said Lot 8 of DAWSON CREEK CORPORATE PARK;
thence along the West line of said Lot 8, South 00(degree)10'12" West 611.87
feet to the true point of beginning; thence South 89(degree)49'48" East 1037.91
feet; thence South 57(degree)46'34" East 154.15 feet; thence South
00(degree)10'12" West 613.61 feet to a point on the Northerly right of way line
of Northeast Brookwood Parkway as shown on said plat of DAWSON CREEK CORPORATE
PARK; thence along said Northerly right of way of Northwest Brookwood Parkway
and from a tangent bearing of South 53(degree)48'01" West along the arc of a
non-tangent 1414.20 foot radius curve to the right, through a central angle of
19(degree)48'55" an arc distance of 489.09 feet to a point of tangency; thence
continuing along said Northerly right of way line South 73(degree)36'56" West
310.86 feet to the point of curvature with a tangent 100.00 foot radius curve to
the right; thence along the arc of said curve through a central angle of
90(degree)00'00" an arc distance of 157.08 feet to a point of tangency on the
Easterly right of way line of Northeast Dawson Creek Drive as shown on said plat
of DAWSON CREEK CORPORATE PARK; thence along said Easterly right of way line
North 16(degree)23'04" West 65.00 feet to the point of curvature with a tangent
1315.32 foot radius curve to the left; thence continuing along said Easterly
right of way and along said curve to the left through a central angle of
32(degree)44'39" an arc distance of 751.70 feet to a point on the Westerly line
of said Lot 8; thence along said Westerly line North 40(degree)52'16" East 77.50
feet to a point of curvature with a tangent 250.00 foot radius curve to the
left; thence along the arc of said curve through a central angle of
40(degree)42'04" an arc distance of 177.59 feet to a point of tangency; thence
North 00(degree)10'12" East 27.00 feet to the true point of beginning.
11
RECORDING REQUESTED BY, AND
WHEN RECORDED, RETURN TO:
Sumitomo Bank Leasing and Finance, Inc.
c/o Landels, Ripley & Diamond
350 Steuart Street
San Francisco, CA 94105
Attention: Bruce W. Hyman, Esq.
-------------------------------------------------------------------------------
MEMORANDUM OF GROUND LEASE
THIS MEMORANDUM OF GROUND LEASE ("Memorandum of Ground Lease") is
executed as of January __, 1995, by and between INTEGRATED DEVICE TECHNOLOGY,
INC., A DELAWARE CORPORATION ("Landlord") and SUMITOMO BANK LEASING AND FINANCE,
INC., A DELAWARE CORPORATION ("Tenant").
RECITALS
WHEREAS, Landlord and Tenant have executed that certain ground lease
("Lease") dated as of January __, 1995, covering certain land as more
particularly described in Schedule 1 attached hereto and incorporated herein by
this reference and the Improvements which may come to be located on the real
property located in the City of Hillsboro, Washington County, Oregon ("Land")
(the Land and Improvements are referred to herein as the "Premises"); and
WHEREAS, Landlord and Tenant desire to record notice of the Lease in
the real estate records of Washington County, Oregon.
NOW, THEREFORE, in consideration of the foregoing, Landlord and Tenant
hereby declare as follows:
1. DEMISE. Landlord hereby leases the Premises to Tenant and Tenant
hereby leases the Premises from Landlord, subject to the terms, covenants and
conditions contained in the Lease.
2. EXPIRATION DATE. The term of the Lease ("Term") shall commence on
January , 1995 and shall expire on December , 2045.
3. COUNTERPARTS. This Memorandum of Lease may be executed
in any number of counterparts, each of which shall be deemed to
be an original and all of which together shall comprise but a single instrument.
4. INCORPORATION. The terms and conditions of the Lease are
incorporated by reference into this Memorandum of Ground Lease as if fully set
forth herein at length.
[Signatures begin on next page.]
-2-
IN WITNESS WHEREOF, Landlord and Tenant have executed this Memorandum
of Lease as of the date and year first written above.
"LANDLORD"
INTEGRATED DEVICE TECHNOLOGY, INC.,
A DELAWARE CORPORATION
By:
-----------------------------------
Name:
------------------------------
Its:
-------------------------------
By:
-----------------------------------
Name:
------------------------------
Its:
-------------------------------
[ALL SIGNATURES MUST BE ACKNOWLEDGED.]
[SIGNATURES CONTINUED ON NEXT PAGE]
-3-
"TENANT"
SUMITOMO BANK LEASING AND FINANCE,
INC., A DELAWARE CORPORATION
By:
-----------------------------------
Name:
------------------------------
Its:
-------------------------------
[All Signatures must be acknowledged.]
-4-
SCHEDULE 1
The land referred to is situated in the State of Oregon, County of Washington,
and is described as follows:
Real property being a portion of Lots 6 and 8 of DAWSON CREEK CORPORATE PARK,
recorded in Plat Book 67, Page 34, records of Washington County, Oregon, in the
City of Hillsboro, in the County of Washington and State of Oregon, more
particularly described as follows:
BEGINNING at the Northwest corner of said Lot 8 of DAWSON CREEK CORPORATE PARK;
thence along the West line of said Lot 8, South 00(degree)10'12" West 611.87
feet to the true point of beginning; thence South 89(degree)49'48" East 1037.91
feet; thence South 57(degree)46'34" East 154.15 feet; thence South
00(degree)10'12" West 613.61 feet to a point on the Northerly right of way line
of Northeast Brookwood Parkway as shown on said plat of DAWSON CREEK CORPORATE
PARK; thence along said Northerly right of way of Northwest Brookwood Parkway
and from a tangent bearing of South 53(degree)48'01" West along the arc of a
non-tangent 1414.20 foot radius curve to the right, through a central angle of
19(degree)48'55" an arc distance of 489.09 feet to a point of tangency; thence
continuing along said Northerly right of way line South 73(degree)36'56" West
310.86 feet to the point of curvature with a tangent 100.00 foot radius curve to
the right; thence along the arc of said curve through a central angle of
90(degree)00'00" an arc distance of 157.08 feet to a point of tangency on the
Easterly right of way line of Northeast Dawson Creek Drive as shown on said plat
of DAWSON CREEK CORPORATE PARK; thence along said Easterly right of way line
North 16(degree)23'04" West 65.00 feet to the point of curvature with a tangent
1315.32 foot radius curve to the left; thence continuing along said Easterly
right of way and along said curve to the left through a central angle of
32(degree)44'39" an arc distance of 751.70 feet to a point on the Westerly line
of said Lot 8; thence along said Westerly line North 40(degree)52'16" East 77.50
feet to a point of curvature with a tangent 250.00 foot radius curve to the
left; thence along the arc of said curve through a central angle of
40(degree)42'04" an arc distance of 177.59 feet to a point of tangency; thence
North 00(degree)10'12" East 27.00 feet to the true point of beginning.
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
-----------------------------------------
On the day of January, 1995, before me, the undersigned, a Notary
Public in and for said State, personally appeared and
, 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.
--------------------------------------
Notary Public
(SEAL)
STATE OF NEW YORK )
) SS.
COUNTY OF NEW YORK )
On the day of January in the year 1995 before me personally came
to me know, who, being by me duly sworn, did depose
and say that he resides in , that he
is the of Sumitomo Bank Leasing and Finance, Inc., the
corporation described in and which executed the above instrument; and that he
signed his name thereto by order of the board of directors of said corporation.
--------------------------------------
[seal]