EXHIBIT 10.51
LEASE AGREEMENT
FOR THE ASML BUILDING
LEASE AGREEMENT
(Single Tenant)
LEASE AGREEMENT (this "Lease"), made this 15TH day of August, 1997, between
▇▇▇▇ COMPANIES US, INC., a Minnesota corporation ("Landlord"), and ASM
LITHOGRAPHY, INC., a Delaware corporation ("Tenant").
1. PREMISES:
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Landlord, subject to the terms and conditions hereof, hereby leases to
Tenant the premises (the "Premises") at Arizona State University Research Park,
Lot 44, comprising approximately 97,963 square feet of area in the building with
street address of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ (the "Building") to
be used by Tenant for any use permitted under Article II of the Declaration of
Covenants, Conditions and Restrictions for Arizona State University Research
Park (the "Declaration"), which is attached hereto as Exhibit A, but excluding
the specific illustrated uses permitted under Article II B(6), and for no other
purpose. Without limiting the generality of the foregoing limitation on the
permitted use of the Premises, Tenant shall not conduct any unlimited
manufacturing operations in the Premises or conduct any activities which create
the risk of a release of a Hazardous Material on, in, under or about the
Premises or the Property or into the environment in violation of the Hazardous
Material Laws or otherwise expose Landlord, Tenant, the Property or the Premises
to action by any governmental authority or third parties under the Hazardous
Materials Laws. The foregoing shall not be construed to prevent the use by
Tenant of the Hazardous Materials described in Exhibit B, provided that use
thereof is in full compliance with applicable Hazardous Materials Laws pursuant
to any governmental or other regulatory permits or consents required by the
Hazardous Materials Laws. The Building, the land underlying and contiguous
thereto (which is described on Exhibit C), and all improvements thereon are
hereinafter referred to as the "Property".
Tenant shall have the exclusive right to use and occupy the Leased Premises
throughout the Lease Term (and any Renewal Terms), 24 hours each day.
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2. TERM:
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Tenant takes the Premises from Landlord, upon the terms and conditions
herein contained, to have and to hold the same for the term ("Lease Term") of
approximately one hundred eighty (180) months commencing on July 31, 1998,
subject to the provisions of the next sentence and of paragraph 13, and ending
on the last day of the one hundred eightieth (180th) calendar month thereafter,
unless sooner terminated or extended as herein provided. The foregoing
commencement date is a reasonable projection as of the date of this Lease,
subject to change as set forth in the following paragraph.
Notwithstanding the foregoing projected date, the Lease Term will commence
on the third (3rd) business day after Landlord notifies Tenant that all
certificates of occupancy (or equivalent governmental approvals of completion)
have been issued for the Building and the Tenant Improvements by the appropriate
governmental agency, at which time the Premises will be deemed "ready for
occupancy." The certificate of occupancy (or equivalent governmental approval
of completion) may contain stipulations and conditions to be fulfilled by
Landlord so long as it permits Tenant to take occupancy of the Premises and to
use the Premises for the purposes contemplated by this Lease. Tenant shall take
possession of the Premises no later than three (3) business days after Landlord
notifies Tenant that all certificates of occupancy (or equivalent governmental
approvals of completion) have been issued. Within five (5) days after
commencement of this Lease, Landlord and Tenant shall execute a written
statement specifying (a) the commencement date and (b) the termination date of
this Lease.
Notwithstanding the foregoing, Tenant shall be entitled to enter the
Premises or portions thereof from time to time prior to commencement of the
Lease Term, without the payment of rent or any other sums under this Lease, for
the purpose of installing Tenant's furniture, fixtures and equipment. Tenant
shall use reasonable care in connection with such entry, and shall not
materially interfere with construction of the Tenant Improvements in connection
with such entry.
3. BASE RENT:
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Tenant shall pay to Landlord during the Lease Term without any set-off or
deduction (except only as otherwise expressly provided in this Lease) annual
base rent as follows:
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For years one (1) through five (5) of the Lease Term, annual base rent
shall be calculated as follows:
(Total Project Cost x Rental Constant) + Subground Lease Annual Payment
(a) Total Project Cost is defined as the total of the costs and
expenses incurred by Landlord in the design, development and construction
of the Building as described in paragraph 30 including the Allowance for
the Tenant Improvements (but not any excess Tenant Improvements Cost if the
actual cost of the Tenant Improvements exceeds the Allowance unless
otherwise agreed by Landlord and Tenant as provided in paragraph 30.4) and
a three percent (3%) real estate development fee and a six percent (6%)
contractor's fee payable to Landlord. Total Project Cost shall include
those items set forth in the pro forma statement dated June 19, 1997
showing Landlord's estimate as of that date of $15,954,295 as the Total
Project Cost. The pro forma is for informational purposes and remains
subject to adjustment.
(b) Rental Constant equals .105
(c) Subground Lease Annual Payment is defined as the applicable
annual rent payable under the Subground Lease (as defined in paragraph 28
below) for the corresponding year of the Lease Term.
As an example of the calculation of annual base rent using the above
formula, if the Total Project Cost is $15,954,295.00, then using the Rental
Constant of .105 and a Subground Lease Annual Payment of $190,728.00, the annual
base rent for each of years one (1) through five (5) of the Lease Term would be
$1,865,928.98 for a monthly base rent of $155,494.08.
For each of years six (6) through ten (10) of the Lease Term, the annual
base rent shall be calculated using the above formula but with a Rental Constant
of .1172 (e.g., if the Total Project Cost is $15,954,295.00, then using the
Rental Constant of .1172 and a Subground Lease Annual Payment of $190,728.00,
the annual base rent for each of years six (6) through ten (10) of the Lease
Term would be $2,060,571.37 for a monthly base rent of $171,714.28).
For each of years eleven (11) through fifteen (15) of the Lease Term, the
annual base rent shall be calculated using the
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above formula but with a Rental Constant of .1307 (e.g., if the Total Project
Cost is $15,954,295.00, then using the Rental Constant of .1307 and a Subground
Lease Annual Payment of $190,728.00, the annual base rent for each of years
eleven (11) through fifteen (15) of the Lease Term would be $2,275,954.36 for a
monthly base rent of $189,662.86).
Annual base rent shall be payable for each year of the Lease Term in twelve
(12) equal installments, each monthly installment to be payable on the first day
of each month in advance at the office of Landlord at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as may from time
to time be designated by Landlord.
Landlord and Tenant will memorialize each rental calculation in writing.
If the Lease Term commences on a day other than the first day of a calendar
month, then the rental for such month shall be prorated on a daily basis, based
on the number of days in effect during such month, and paid on or before the
commencement of the Lease Term.
Prior to the date the Lease Term commences Landlord will notify Tenant in
writing of the final square footage of the Premises. Tenant's written approval
thereof shall not be unreasonably withheld or delayed.
Notwithstanding anything to the contrary herein, Tenant shall have the
right, exercisable in Tenant's discretion, to begin operation of its business,
prior to commencement of the Lease Term, in the informational technology space
(the "IT Space") and/or the office space (the "Office Space") as shown,
respectively, crosshatched and hatched on Exhibit D (whether one or both, the
"Early Use Space") so long as lawful for Tenant to occupy and commence business
within the Early Use Space. Landlord shall use its best, reasonable efforts to
have the IT Space available for Tenant's early use by May 29, 1998 and the
Office Space available by June 26, 1998. If Tenant so commences business in any
portion of the Office Space, then base rent shall commence for the Office Space
as of such time and Tenant shall with respect to the Office Space comply with
all of the terms and conditions of this Lease. Rent for the early use of the
Office Space shall be calculated using the above formula for annual base rent
for years 1 through 5 of the Lease Term using Landlord's good faith estimate of
the Total Project Cost and prorated based on the ratio of the square footage of
the Office
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Space to the total square footage of the Building (as estimated in good faith by
Landlord if not then known); no rent shall be charged prior to commencement of
the Lease Term for Tenant's early use of the IT Space. Rent for the early use of
the Office Space shall subsequently be adjusted retroactively as necessary to
reflect the final Total Project Cost and the Building and the Office Space
square footages when known. Tenant shall use reasonable care in connection with
Tenant's use of the Early Use Space so as not to materially interfere with
Landlord's construction of the Tenant Improvements. Tenant's use of and the
commencement of base rent on a pro rata basis for the early use of the Office
Space shall not affect the date on which the Lease Term otherwise is determined
to commence under paragraph 2 above.
4. OPERATING COSTS:
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Tenant shall, for the entire Lease Term, pay to Landlord as additional
rent, without any set-off or deduction therefrom (except as otherwise expressly
provided in this Lease), one hundred percent (100%) of Operating Costs incurred
by Landlord in maintaining and operating the Property. Operating Costs shall be
based on a one hundred percent (100%)-occupied building, whether or not the
entire Building is actually occupied.
"Operating Costs" are hereby defined to include, but shall not be limited
to: (i) real estate taxes and assessments, general or special, (ii) insurance
premiums and costs (including deductibles) for the all-risk property and
casualty insurance that Landlord maintains pursuant to the provisions of this
Lease (which may include rent loss and difference-in-conditions coverages),
(iii) the yearly amortization of capital costs incurred by Landlord for
improvements or structural repairs to the Property required to comply with any
laws, rules or regulations of any governmental authority having jurisdiction
over the Property which are enacted after the commencement date of this Lease,
or with any changes in laws, rules or regulations of any governmental authority
having jurisdiction over the Property which existed on the commencement date of
this Lease, but which changes were enacted after the commencement date of this
Lease, or the application of either, or for the purposes of reducing Operating
Costs, which costs shall be amortized over the useful life of such improvements
or repairs, as reasonably estimated by Landlord, (iv) regular painting of the
exterior of the Building, (v) reasonable costs of routine and ordinary service
and maintenance of the roof (including reasonable
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preventive care, but excluding capital repairs/replacements), unless Landlord at
its election transfers to Tenant responsibility for routine and ordinary service
and maintenance of the roof (including reasonable preventive care) and the cost
thereof, (vi) all fees, charges, and assessments including, without limitation,
any common area maintenance charges levied or assessed against, or charged to,
the Property or any part thereof, or to Landlord in respect to the Property or
any part thereof, pursuant to the Ground Lease, the Subground Lease or the
Declaration, including, without limitation, any fee, charge, or assessment
arising out of the operation and maintenance of Arizona State University
Research Park, together with any applicable transaction privilege or similar
tax; and (vii) all Intergovernmental Agreement Service Fees payable to City of
Tempe, together with any applicable transaction privilege or similar tax.
Notwithstanding the foregoing, Landlord, on request of Tenant, will outline
Landlord's insurance program and be responsive to Tenant's input but Landlord's
own good faith determination of the Property insurance needs will have
precedence.
Painting of the exterior of the Building will be done at reasonable
intervals, subject to any further requirement in the Ground Lease, the Subground
Lease, or the Declaration.
Notwithstanding the foregoing, if the Property qualifies for a real estate
tax abatement, and then only to the extent of the abatement, Operating Costs
will not include any abated real estate tax. Landlord is making no
representations or warranties or covenants to Tenant as to the nature or extent
of any real estate tax abatement and this Lease is not contingent on any real
estate tax abatement, nor are Tenant's obligations to Landlord under this Lease
dependent on such an abatement.
In no event (except only as provided in the preceding subparagraph or in
paragraph 8) will Operating Costs include, nor will Tenant be obligated to pay
for, (A) any capital improvements, alterations or expenditures, except HVAC
(including, without limitation, reroofing of the roof or resurfacing on the
parking lot), (B) depreciation, (C) Landlord's overhead or management fees, (D)
repairs, alterations, additions, improvements or replacements made to rectify or
correct any defect in the design, materials or workmanship of the Building or
the Property or to comply with any requirements of any governmental authority,
(E) damage and
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repairs attributable to fire or other casualty; (F) damage and repairs paid for
under any insurance policy carried by Landlord in connection with the Property;
(G) costs incurred due to violation by Landlord of the terms and conditions of
this Lease; (H) legal fees, brokerage commissions, advertising costs or other
related expenses incurred in connection with leasing; (I) accountants' fees; (J)
sculptures or artwork; (K) fees and costs incurred in connection with the
defense of Landlord's title or interest in the Property or the Building or any
part thereof; (L) rent and other costs payable under any ground lease; and (M)
principal, interest and other amounts paid pursuant to any loan secured by the
Property or the Building or any part thereof.
As soon as reasonably practicable prior to the commencement of each
calendar year during the Lease Term, Landlord shall furnish to Tenant an
estimate of Tenant's share of Operating Costs for the ensuing calendar year and
Tenant shall pay, as additional rent hereunder together with each installment of
monthly base rent, one-twelfth (1/12th) of its estimated annual share of such
Operating Costs. As soon as reasonably practicable (but in no event later than
forty-five (45) days) after the end of each calendar year during the Lease Term,
Landlord shall furnish to Tenant a statement of the actual Operating Costs for
the previous calendar year, including Tenant's share of such amount, and within
thirty (30) days thereafter Tenant shall pay to Landlord, or Landlord to Tenant,
as the case may be, the difference between such actual and estimated Operating
Costs paid by Tenant. Tenant's share of such Operating Costs for the years in
which this Lease commences and terminates shall be prorated based upon the dates
of commencement and termination of the Lease Term.
The annual statement of actual Operating Costs shall be prepared in
accordance with GAAP and shall be certified to be correct by Landlord. Landlord
shall maintain full and accurate books and records with respect to all Operating
Costs for a period of not less than one (1) year.
Tenant shall have the right at any time during normal business hours and
upon reasonable prior notice to Landlord to inspect and audit Landlord's books
and records with respect to Operating Costs. Tenant shall not have the right,
however, to inspect and audit Landlord's books and records with respect to the
Operating Costs of any given year following the first (1st) anniversary of
Tenant's receipt of the statement of the actual Operating Costs for the year in
question.
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5. ADDITIONAL TAXES:
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Tenant shall pay as additional rent to Landlord, together with each
installment of monthly base rent, or within ten (10) days after demand, Tenant's
share of Operating Costs and any other payment made by Tenant under this Lease,
the amount of any gross receipts tax, transaction privilege or sales tax or
similar tax (but excluding therefrom any income tax) payable, or which will be
payable, by Landlord, by reason of the receipt of the monthly base rent,
Tenant's share of Operating Costs and any other payment made by Tenant under
this Lease, and adjustments thereto.
6. ASSIGNMENT, SUBLETTING:
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Except for an assignment or subletting to an affiliate or a wholly owned
subsidiary of Tenant (any such entity is referred to herein as a "Tenant
Affiliate"), Tenant may not assign this Lease, or sublet all or any part of the
Premises, without the Landlord's prior written consent, which consent shall not
be unreasonably withheld, or delayed. Landlord reserves the right, should the
Tenant request such assignment or subletting, to terminate this Lease and
recapture the Premises and the Landlord shall have ten (10) days to make such
determination. Should the Landlord exercise this "recapture" right in writing,
Tenant's obligations under this Lease shall terminate thirty (30) days after
Landlord gives Tenant written notice of recapture. Until such termination, the
Tenant will, however, remain liable for the performance of all the terms and
conditions hereof. Notwithstanding the foregoing, it shall be a condition to
any assignment or subletting (including, without limitation, one to a Tenant
Affiliate) that the assignee or sublessee shall assume in writing the
obligations of Tenant under this Lease, and such assignment or subletting shall
not relieve Tenant of its obligations to Landlord under this Lease.
7. UTILITIES:
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Landlord shall provide mains and conduits to supply phone, gas, water,
electricity (including main panel with breakers) and sanitary sewage to the
Premises. Landlord will also provide the conduit from the street to the
Building to accommodate Fiber Optics. Tenant shall pay, when due, all charges
for sewer usage or rental, garbage disposal, refuse removal, water, electricity,
telephone and/or other utility services or energy source furnished to the
Premises during the term of this Lease, or any renewal or extension thereof.
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8. CARE AND REPAIR OF PREMISES:
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Tenant shall, at all times throughout the terms of this Lease, including
renewals and extensions, and at its sole expense, keep and maintain the interior
of the Premises in good repair and in a clean, safe, orderly, sanitary and first
class condition in compliance with all applicable laws, codes, ordinances, rules
and regulations, free of any accumulation of dirt and rubbish, and Tenant shall
arrange its own trash removal. Tenant's obligations extend to the entirety of
the Property and shall also include but not be limited to the maintenance,
repair, and replacement, if necessary, of all interior lighting, HVAC, parking
lot, driveways located on the Property, sidewalks, loading docks and exterior
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light fixtures located on the Property, landscaping on the Property, electrical
and plumbing systems including without limitation all sewer lines, fixtures and
equipment, all restrooms, all interior walls and ceilings, partitions, and doors
and windows, including the regular painting of the interior of the Building, and
the replacement of all broken glass from doors and windows unless breakage is
due to a defect in the design, materials or workmanship of the Building or the
Property (excluding Tenant's design errors), to a breach of Landlord's own
repair and maintenance obligations under this Lease, or to Landlord's
negligence. When used in this provision, the term "repairs" shall include
ordinary and customary replacements or renewals when necessary, and all such
repairs made by the Tenant shall be equal in quality and class to the original
work.
Tenant shall specifically not be required to perform or pay for any
structural changes or capital expenditures on the Property in order to comply
with (i) any law, ordinance, rule or regulation; or (ii) with any recommendation
of Landlord's insurance rating organization, unless the same is required as the
direct result of Tenant's particular use of the Premises (as opposed to Tenant's
mere occupancy of the Premises or Tenant's conduct of business, generally),
except to the extent that Tenant is required to pay to Landlord Tenant's pro
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rata share of certain amortized capital expenditures as provided in paragraph 4.
If Tenant fails, refuses or neglects to maintain or repair the Premises and
the Property as required in this Lease for ten (10) days after notice shall have
been given Tenant, Landlord may make such repairs without liability to Tenant
for any loss or damage that may accrue to Tenant's merchandise, fixtures or
other property or to Tenant's business by reason thereof (except
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that Landlord shall be liable for its own negligence or willful misconduct), and
upon completion thereof, Tenant shall pay to Landlord all costs plus 5% for
overhead incurred by Landlord in making such repairs within ten (10) days after
Tenant receives from Landlord the ▇▇▇▇ therefor.
Landlord shall be responsible for maintenance, repair and replacement of
the structural elements of the roof and shall keep the foundation (concrete slab
floor), exterior walls, and all other structural portions of the Property and
the Building (not otherwise designated to be maintained and repaired by Tenant)
in good repair and in a clean, safe, sanitary and first class condition and in
compliance with all applicable laws, codes, ordinances, rules and regulations,
and if necessary or required by proper governmental authority, make
modifications or replacements thereof, except that Landlord shall not be
required to make any such repairs, modifications or replacements which become
necessary or desirable by reason of the negligence or willful misconduct of
Tenant, its agents, servants or employees, by reason of anyone illegally
entering or upon the Premises, which repairs, modifications or replacements
shall be made by Tenant at its sole expense. Landlord shall also remedy, at
Landlord's sole expense, any latent defects in the Building and the Tenant
Improvements, as well as any damage to the Premises caused by the willful act or
negligence of Landlord or its agents; Landlord shall also repair any defects or
failures in building systems to the extent the same were not constructed in
accordance with the terms of this Lease or applicable law. Notwithstanding the
foregoing, Landlord shall have no liability under this paragraph for any repair,
maintenance or replacement required because of Tenant's own design error, and
nothing in this paragraph will alter Tenant's obligation to pay Operating Costs
to Landlord under paragraph 4 even though this paragraph may impose on Landlord
the obligation of performing the necessary maintenance, repair or replacement.
9. COVENANTS OF TENANT:
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Tenant agrees that it shall:
(a) Observe such reasonable and customary rules and regulations as from
time to time may be put in effect by Landlord, provided that Tenant has received
reasonable prior notice of the same, for the general safety of Landlord and the
occupants of the Building and for the integrity and reputation of the Property.
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(b) Give Landlord access to the Premises at all reasonable times, and upon
reasonable prior notice (but not less than one (1) business day, except in case
of emergency) from Landlord, without change or diminution of rent so long as
Landlord complies with the terms of this Lease, to enable Landlord to examine
the same and to make such repairs, additions and alterations as Landlord is
entitled or required to make under the terms of this Lease, and to exhibit the
Premises to prospective purchaser of the Property or lenders thereon; and during
the one hundred twenty (120) days prior to the expiration of the term, to
exhibit the Premises to prospective tenants and to place upon the door or in the
windows of the Premises any usual or ordinary "For Lease" signs. Landlord will
schedule such entries with Tenant and will use reasonable efforts to minimize
any disruption to Tenant's business caused by such entry and Landlord will
comply with Tenant's reasonable security procedures in connection with such
entry. All of Landlord's entries and the performance of Landlord's work shall be
done during non-business hours of Tenant. Tenant will have the right to be
present whenever Landlord comes on the Premises under this paragraph.
(c) Except in an emergency, Tenant may require reasonable verification of
Landlord's or its agent's identity prior to allowing entry into the Premises.
Tenant may designate certain portions of the Premises as "Security Areas" for
the purpose of securing certain valuable property or confidential information.
Landlord may only enter such Security Areas when accompanied by a representative
of Tenant upon not less than two (2) business days' notice to Tenant, which
notice shall specify the date and time of such entry by Landlord; provided,
however, that Landlord may enter the Security Areas, without notice to Tenant,
in the event of an emergency, in which case Landlord shall provide Tenant with
notice of such entry promptly thereafter.
(d) Keep the Premises and the Property in good order and condition and
replace all glass broken by Tenant with glass of the same quality as that
broken, save only glass broken by fire or other casualty covered by standard all
risk insurance, and commit no waste on the Premises.
(e) Pay for all electric lamps, starters and ballasts used in the Premises.
(f) Upon the termination of this Lease in any manner whatsoever, remove
Tenant's furniture, fixtures and equipment, generators, computers, telephones
and switches, and
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telecommunications equipment (to the extent the same was installed by Tenant)
and Tenant's other goods and effects and those of any other person claiming
under Tenant, and quit and deliver the Premises and the Property to Landlord
peaceably and quietly in as good order and condition as the same are now in or
hereafter may be put in by Landlord or Tenant, reasonable use and wear thereof
and repairs which are Landlord's obligation excepted. Furniture, fixtures,
equipment, goods and effects not removed by Tenant at the termination of this
Lease, however terminated, shall be considered abandoned and Landlord may
dispose of the same as it deems expedient.
(g) Not place signs on or about the Premises or the Property without first
obtaining Landlord's written consent thereto, which consent will not be
unreasonably withheld or delayed. All signs must comply with applicable laws
and ordinances, covenants, conditions and restrictions, and Landlord's
reasonable sign criteria. Notwithstanding the foregoing, Landlord's consent
will be deemed given to any sign that complies not only with City of Tempe
requirements but also with the Declaration.
(h) Not overload, damage or deface the Premises or do any act which may
make void or voidable any insurance on the Premises or the Building, or which
may render an increased or extra premium payable for insurance.
(i) Not place any additional locks on any of Tenant's doors without the
written consent of the Landlord, which consent shall not be unreasonably
withheld or delayed.
(j) Not make any alterations or additions to the Property the cost of which
would exceed Two Hundred Fifty Thousand Dollars ($250,000.00) for any single
alteration or addition or Five Hundred Thousand Dollars ($500,000.00)
cumulatively without obtaining the prior written approval of Landlord thereto,
which consent shall not be unreasonably withheld or delayed. Tenant shall
submit to Landlord with Tenant's request for Landlord's consent, or as soon
thereafter as possible, copies of plans and specifications for the alteration or
addition for which Tenant requests Landlord's consent. In addition, for any
alteration or addition for which Landlord's consent is not required, Tenant
shall still provide to Landlord notice of Tenant's intention to make the
alteration or addition and, when available, copies of the plans and
specifications for such alteration or addition. All alterations, additions or
improvements (including carpeting or other floor covering which has been glued
or otherwise
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affixed to the floor) which may be made by Landlord or Tenant upon the Property,
except movable office furniture, equipment and generators, computers, telephone
and telecommunication systems, and other technology shall be the property of
Landlord, and shall remain upon and be surrendered with the Premises, as a part
thereof, at the termination of this Lease.
(k) Keep the Premises and the Property free from any mechanics',
materialmen's, contractors' or other liens arising from, or any claims for
damages growing out of, any work performed, materials furnished or obligations
incurred by or on behalf of Tenant. Provided, however, that Tenant shall have
the right to contest any such lien, in which event such lien shall not be
considered a default under this Lease until the existence of the lien has been
finally adjudicated and all appeal periods have expired. Tenant shall
indemnify, defend, and hold harmless Landlord for, from and against any such
lien, or claim or action thereon, reimburse Landlord within ten (10) business
days after demand therefor by Landlord for costs of suit and reasonable
attorneys' fees incurred by Landlord in connection with any such lien, claim or
action, and, upon written request of Landlord, provide Landlord with a bond in
an amount and under circumstances necessary to obtain a release of the Premises
or the Property from such lien. Notwithstanding the foregoing, Tenant will have
no responsibility for the liens of contractors or others hired exclusively by
and for Landlord.
(l) Cause to be performed by a competent service company, preventive
maintenance of all HVAC units serving the Premises, as recommended by the
equipment manufacturer.
(m) Indemnify, defend and hold Landlord harmless for, from and against all
claims, obligations, liabilities, costs, expenses and reasonable attorneys' fees
and court costs which Landlord may suffer or incur by reason of Tenant's breach
of this Lease, or by reason of the negligence or willful misconduct of Tenant or
its employees, agents, invitees or licensees on or about the Premises or the
Property. Subject to the provisions of paragraph 8, Tenant shall comply with
all applicable laws, regulations, ordinances and other legal requirements in
connection with its particular use and occupancy of the Premises.
Tenant's obligations under this paragraph 9 to do or not to do a specified
act shall extend to and include Tenant's obligations to see to it that Tenant's
employees, agents and invitees shall do or shall not do such acts, as the case
may be.
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Landlord shall indemnify, defend and hold Tenant harmless for, from and
against all claims, obligations, liabilities, costs, expenses and reasonable
attorneys' fees and court costs which Tenant may suffer or incur by reason of
Landlord's breach of this Lease, or by reason of the negligence or willful
misconduct of Landlord or its employees, agents, invitees or licensees on or
about the Premises or the Property. Landlord shall comply with all applicable
laws, regulations, ordinances and other legal requirements in connection with
performing its obligations under this Lease and its entry onto the Premises or
the Property.
Landlord's obligations under this paragraph 9 to do or not to do a
specified act shall extend to and include Landlord's obligations to see to it
that Landlord's employees, agents and invitees shall do or shall not do such
acts, as the case may be.
10. PARKING AND DRIVES:
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Subject to the refinements, if any, in paragraph 1 of the Rider to this
Lease, Tenant, its employees, and invitees shall have the exclusive right to use
all interior driveways and parking lots located on the Property. The use of
such driveways and parking facilities is subject to such customary and
reasonable rules and regulations as Landlord may impose. Landlord will be under
no obligation to police the driveways and parking lots. Tenant may employ all
reasonable and lawful means to police these areas and prevent unauthorized
visitors from using same including, without limitation, employees of businesses
adjacent to the Property, which means may include towing to the extent lawful.
The Tenant further agrees not to use, or permit the use by its employees, the
driveways, parking or truck-loading areas for the overnight or any other
storage, or for the maintenance or repair or cleaning, of automobiles or other
vehicles without the written permission of Landlord. Tenant shall not place or
store goods, materials, supplies, equipment, automobiles or other vehicles, or
other property of Tenant in the driveways or parking lots or anywhere else in
the Property or in the Building, excepting wholly within the Premises.
11. CASUALTY LOSS:
-------------
In case of damage to the Premises or the Building by fire or other
casualty, Tenant shall give immediate notice to Landlord, who shall thereupon
cause the damage (including any damage to the Tenant Improvements) to be
repaired with
-14-
reasonable speed, at the expense of the Landlord, subject to reasonable delays
caused by force majeure events and other similar delays beyond the reasonable
control of Landlord. All rent and other charges payable by Tenant hereunder
shall ▇▇▇▇▇ proportionately during any period in which, by reason of such
casualty, Tenant reasonably determines that there is interference with the
operation of Tenant's business in the Premises. Such abatement shall continue
for the period commencing with the date of such damage or destruction and ending
with the date that business may be fully resumed on the Premises, as reasonably
determined by Tenant. If Tenant determines that continuation of business is not
practical or secure pending reconstruction, all rent and other charges due and
payable hereunder shall be fully abated until business is resumed. In the event
such damage resulted solely from the act, fault or neglect of Tenant, Tenant's
employees or agents, there shall be no abatement of rent.
In the event the cost to repair the damage shall exceed twenty-five percent
(25%) of the full replacement value of the Building, or if the damage shall be
so extensive that repairs cannot be completed within one hundred twenty (120)
days from the date of issuance of required permits (permitting to take no more
than 60 days and Landlord to use diligent efforts to obtain same), then either
Landlord or Tenant shall have the right to terminate this Lease, as of the date
of such damage, by notice given to the other party within thirty (30) days
following the casualty loss. If this Lease is terminated, the rent and
Operating Costs shall be adjusted to the date of such damage and Tenant shall
vacate the Premises within ninety (90) days after the date of such casualty. If
neither party shall elect to terminate this Lease, then the provisions of the
first paragraph of this paragraph 11 shall control. Tenant hereby waives any
statutory right to terminate this Lease or to have a reduction of rent in the
event of casualty loss or destruction, the rights of tenant in such instance to
be determined by this paragraph. Notwithstanding the foregoing, Landlord shall
have no obligation to repair or rebuild the Premises unless Landlord has
received sufficient insurance proceeds for that purpose free of any claim by any
lender on the Property.
12. CONDEMNATION:
------------
If all or a portion or the Premises or the Property is taken by eminent
domain or transferred under threat of such taking, this Lease shall
automatically terminate as of the date of taking only with respect to the
portion of the Premises or
-15-
Property so taken. If such portion of the Premises or the Property is taken by
eminent domain, such that the Premises are no longer suitable for Tenant's
intended use, in Tenant's good faith discretion, Tenant shall have the right to
terminate this Lease as of the date of taking by giving written notice thereof
to Landlord within ten (10) days after such date of taking. If Tenant does not
elect to terminate this Lease, Landlord shall, at its expense, promptly restore
the Premises and the Property (including the Tenant Improvements), exclusive of
any improvements or other changes made therein by Tenant, to as near the
condition which existed immediately prior to the date of taking as reasonably
possible, and the rent and other charges payable under this Lease shall ▇▇▇▇▇ in
the same manner as described in paragraph 11. All damages awarded for a taking
of the Property under the power of eminent domain shall belong to and be the
exclusive property of Landlord, whether such damages be awarded as compensation
for diminution in value of the leasehold estate hereby created or to the fee of
the Property; provided, however, that Landlord shall not be entitled to any
separate award made to Tenant for the value and cost of Tenant's personal
property, fixtures and moving expenses.
13. DELAY IN POSSESSION:
-------------------
If the Premises shall, on the scheduled date of commencement of the Lease
Term, not be ready for occupancy by the Tenant for any reason other than
Tenant's default under this Lease, Landlord shall continue to use due diligence
to complete such construction, building operations, repair or remodeling and to
deliver possession of the Premises to Tenant. Notwithstanding any provision in
this Lease to the contrary, but subject to the provisions of paragraph 30.3:
(a) If the Premises are not ready for occupancy by Tenant on or before July
31, 1998 (the "Delivery Date") for any reason other than solely as a result of
Tenant's negligent or willful acts or as set forth below in this paragraph 13,
then Tenant's sole and exclusive remedy will be to receive one (1) day of free
rent for each day from the thirtieth (30th) day after the Delivery Date for
ninety (90) days; provided, however, if Tenant has taken possession of and
commenced business in any of the Early Use Space, then the free rent shall be
prorated on a square footage basis so that Tenant receives free rent only for
that portion of the Building not occupied and being used under the early use
provisions of paragraph 3; and
-16-
(b) If the Premises are not ready for occupancy by Tenant on or before the
one hundred twentieth (120th) day after the Delivery Date, then Tenant shall
have the right to cancel this Lease as its sole and exclusive remedy, excepting
an action for specific performance, by notice given to Landlord on or before ten
(10) days thereafter.
14. MUTUAL RELEASE/WAIVER OF SUBROGATION:
------------------------------------
Landlord and Tenant each hereby release the other from any and all
liability or responsibility for any direct or consequential loss, injury or
damage during the term of this Lease, to the extent such loss, injury or damage
is covered by the terms of any insurance policy maintained by Landlord or
Tenant. Inasmuch as the above mutual waivers will preclude the assignment of
any claim by way of subrogation (or otherwise) to an insurance company (or any
other person), each party hereto agrees if required by said policies to give to
each insurance company which has issued to it all risk and other property
insurance, written notice of the terms of said mutual waivers, and to have said
insurance policies properly endorsed, if necessary, to prevent the invalidation
of said insurance coverage by reason of said waivers.
Tenant shall not carry any stock of goods or do anything in or about said
Premises which will increase insurance rates on said Premises or the Building in
which the same are located. If Landlord shall consent to such use, Tenant
agrees to pay as additional rental any increase in premiums for all risk
insurance resulting from the business carried on in the Premises by Tenant.
Tenant shall, at its own expense, comply with the requirements of insurance
underwriters and insurance rating bureaus and governmental authorities having
jurisdiction, except to the extent this Lease requires Landlord to comply with
the same.
The Tenant shall maintain in full force and effect during the term hereof,
a policy of public liability insurance under which Landlord and Tenant shall be
named insureds. The minimum limits of liability of such insurance shall be
$2,000,000.00 combined single limit as to bodily injury and property damage.
Tenant may provide any coverage required under this Lease through blanket
policies.
Landlord shall, during the term hereof, keep in full force and effect the
following insurance:
-17-
(a) Standard form property insurance insuring the Building and the Premises
(including all installations and fixtures, but excluding Tenant's personal
property) against loss or damage due to the perils of fire and other casualties
covered within the classification of fire and extended coverage, vandalism,
malicious mischief, special extended coverage (All Risk), sprinkler leakage and
water damage. Such policy or policies shall provide for loss payable to
Landlord. Such policies will include coverage equal to the full replacement cost
of the Building, including the Premises (replacement cost new, including
coverage for the cost of debris removal and coverage for the cost of complying
with building, zoning, safety, land use and other laws as a result of any
casualty or loss) and so as to prevent the application of co-insurance
provisions.
Property insurance required to be carried by Landlord hereunder shall be
obtained from companies maintaining at the commencement of the policy term a
"General Policyholders Rating" of at least B+ and a financial rating of at least
Class V, as set forth in the most current issue of "Best's Insurance Guide."
The party with a duty to maintain insurance hereunder (the "Insured Party")
agrees to deliver to the other party certificates of insurance evidencing such
coverage. Each such policy shall contain a provision requiring thirty (30) days
written notice to both parties before cancellation of the policy can be
effected. The Insured Party shall endeavor to provide the other party, at least
15 days prior to the expiration of such policies, with evidence of renewals or
"insurance binders" evidencing renewal thereof.
15. HAZARDOUS MATERIALS:
-------------------
(a) As used in this Lease, the term "Hazardous Material" means any
explosives, radioactive materials or substances defined as or included in the
definition of "hazardous substances", "hazardous wastes", "infectious wastes",
"hazardous materials" or "toxic substances" now or subsequently regulated under
any federal, state or local laws or regulations or ordinances ("Hazardous
Materials Laws") including, without limitation, oil, petroleum-based products,
paints, solvents, lead, mercury, cyanide, DDT, acids, pesticides, asbestos,
radon, PCBs and similar compounds.
(b) Except for ordinary office products in customary quantities, and those
Hazardous Materials listed in Exhibit B attached hereto, which shall be used,
stored, and disposed of in
-18-
full compliance with applicable Hazardous Materials Laws pursuant to any permit
or consent required under the Hazardous Materials Laws or by other governmental
or regulatory authority, Tenant shall not cause or permit any Hazardous Material
to be generated, produced, brought upon, used, stored, treated, discharged,
released, spilled or disposed of on, in, under or about the Premises or the
Property, or into the groundwater or the environment, by Tenant, its affiliates,
agents, employees, contractors, sublessees, assignees or invitees. Tenant shall
and does hereby indemnify, defend and hold Landlord harmless for, from and
against any and all actions (including, without limitation, remedial or
enforcement actions of any kind, administrative or judicial proceedings, and
orders or judgments arising out of or resulting therefrom), costs, claims,
damages (but excluding consequential or punitive damages), expenses (including
without limitation, attorneys', consultants' and experts' fees, court costs and
amounts paid in settlement of any claims or actions), fines, forfeitures or
other civil, administrative or criminal penalties, injunctive or other relief
(whether or not based upon personal injury, property damage, or contamination
of, or adverse effects upon, the environment, water tables or natural
resources), liabilities or losses arising from a breach of this provision of the
Lease.
(c) In the event that Hazardous Materials are discovered upon, in, or under
the Property, and any governmental agency or entity having jurisdiction over the
Property requires the removal or remediation of such Hazardous Materials, (i)
Tenant shall be responsible for removing and remediating those Hazardous
Materials arising out of or related to any breach of the provisions of clause
(b) above, and (ii) in all other circumstances, Landlord shall be responsible
for removing and remediating the Hazardous Materials, at Landlord's expense.
Notwithstanding the foregoing, Tenant shall not take any remedial action in or
about the Premises or the Property without first notifying Landlord of Tenant's
intention to do so and affording Landlord the opportunity to protect Landlord's
interest with respect thereto. Each party immediately shall notify the other
party in writing of: (i) any spill, release, discharge or disposal of any
Hazardous Material in, on or under the Premises, the Property or any portion
thereof except from the use of ordinary office products or materials in the
ordinary course of Tenant's business which is not otherwise a reportable event
under applicable Hazardous Materials Laws; (ii) any enforcement, cleanup,
removal or other governmental or regulatory action instituted, contemplated, or
threatened (if Tenant has notice thereof) pursuant to any Hazardous Materials
-19-
Laws; (iii) any claim made or threatened by any person against Tenant, the
Premises, or the Property relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from or claimed to result from any
Hazardous Materials; and (iv) any reports made to any governmental agency or
entity arising out of or in connection with any Hazardous Materials in, on,
under or about or removed from the Premises or the Property, including any
complaints, notices, warnings, reports or asserted violations in connection
therewith. Tenant also shall supply to Landlord as promptly as possible, and in
any event within five (5) business days after Tenant first receives or sends the
same, copies of all claims, reports, complaints, notices, warnings or asserted
violations relating in any way to the Premises, the Property or Tenant's use or
occupancy thereof.
(d) Without limiting the foregoing indemnity, Tenant shall be responsible
to pay for, or reimburse Landlord for, the cost of any investigations, studies,
cleanup or corrective action initiated or undertaken on account of any action or
inaction of Tenant in violation of any Hazardous Materials Laws at or affecting
the Premises and/or Property, or by reason of any other act or omission of
Tenant in breach of this Lease.
(e) Landlord represents and warrants to Tenant that the Building and the
Premises contain no significant amounts of asbestos or other Hazardous Materials
as a result of Landlord's development of the Property, excepting insubstantial
amounts thereof, if any, in quantities not having materially adverse effects on
the environment or upon the health and safety of persons.
(f) The respective rights and obligations of Landlord and Tenant under this
paragraph 15 shall survive the expiration or termination of this Lease or
Tenant's non-occupancy of the Premises.
16. DEFAULT:
-------
In the event Tenant fails to keep and perform any of the terms or
conditions hereof (but excluding the payment of rental or other monetary sums
due under this Lease) and such failure continues for thirty (30) days after
written notice of default from Landlord (provided, however, that if such failure
cannot reasonably be corrected, even by prompt and diligent action, within
thirty (30) days, where Tenant fails to commence curing such failure within such
30-day period and thereafter diligently
-20-
pursue the same to completion), or in the event Tenant fails to pay any rental
or other sum of money due hereunder and such failure continues for ten (10)
business days after notice thereof to Tenant, time being declared to be of the
essence, and no further notice of default being required, Landlord may resort to
any and all legal remedies or combination of remedies which Landlord may desire
to assert including but not limited to one or more of the following: (1) re-
enter the Premises in the manner provided by law, (2) declare the Lease at an
end and terminated, (3) ▇▇▇ for the rent due and to become due under the Lease,
and for any damages sustained by Landlord and (4) continue the Lease in effect
and relet the Premises on such terms and conditions as Landlord may deem
reasonably advisable with Tenant remaining liable for the monthly rent and all
other sums payable under this Lease, plus the reasonable cost of obtaining
possession of the Premises and of reletting the Premises, including broker's
commissions, and of any repairs and alterations necessary to prepare the
Premises for reletting, less the rentals actually received from such reletting,
if any. Landlord shall use reasonable efforts to mitigate damages and relet the
Premises. Any recovery of future rent from Tenant, will be discounted by
applying the Federal Reserve rate of the Federal Reserve Bank in San Francisco
at the time of award, plus three percent (3%). No action of Landlord shall be
construed as an election to terminate the Lease or to accept a surrender of the
Premises unless written notice of such intention be given to Tenant. Tenant
agrees to pay as additional rental all reasonable attorneys' fees and other
costs and expenses incurred by Landlord in enforcing any of Tenant's obligations
under this Lease. The mention in this Lease of any remedies shall not be deemed
to be a waiver by Landlord of any other or further remedies available at law or
in equity from time to time, all of which are expressly preserved and shall be
available to Landlord.
The prevailing party in any dispute arising under this Lease shall be
entitled to recover from the other party all reasonable attorneys' fees and
other costs and expenses incurred by the prevailing party, such fees to be set
by a court and not a jury. Any amount due from either party hereunder which is
not paid when due shall bear interest at the rate of 12% per annum from the due
date until paid. The mention in this Lease of any remedies shall not be
-21-
deemed to be a waiver by Tenant of any other or further remedies available at
law or in equity from time to time, all of which are expressly preserved and
shall be available to Tenant.
Neither acceptance of rent by Landlord, with or without knowledge of
breach, nor failure of Landlord to take action on account of any breach hereof
or to enforce its rights hereunder shall be deemed a waiver of any breach, and
absent written notice or consent, said breach shall be a continuing one.
If Landlord defaults under this Lease, Tenant shall give Landlord written
notice of the default and Landlord shall have (a) ten (10) days to correct the
same, if the default can be corrected by the payment of money, and (b) thirty
(30) days to correct the same, if the default cannot be corrected by the payment
of money, provided that if a non-monetary default cannot reasonably be cured
within such 30-day period, and if Landlord is proceeding with due diligence to
cure the default, Landlord will have such additional time as may be reasonably
necessary to cure the default so long as Landlord promptly commences such cure
within the 30-day period. The holder of any mortgage or deed of trust on the
Property shall have the right to cure any default of Landlord with equal cure
periods. Such lender's cure period will begin to run upon its receipt of
written notice from Tenant setting forth the alleged default of Landlord,
provided Landlord or such lender has given Tenant written notice of the lender's
address. If Landlord or its lender fails to pay any amounts due Tenant within
the applicable time period or to otherwise cure any default of Landlord within
the time period specified above, then Tenant shall have as its exclusive remedy
the right to cure any default at Landlord's expense and seek recovery of such
sum from Landlord by an action at law. Nothing herein shall limit Tenant's
right to equitable relief (including injunction or specific performance) in the
event Landlord and its lender fail to cure within the applicable time period.
Tenant shall have a qualified right of offset if neither Landlord nor its lender
protests the claimed default of Landlord by sending Tenant written notice of
protest within ten (10) days after receipt by Landlord and its lender of
Tenant's notice of default to Landlord, and if neither Landlord nor its lender
thereafter cures the alleged default of Landlord within the applicable time
period.
Tenant agrees to look solely to Landlord's interest in the Property for the
recovery of any judgment from Landlord or the payment of any obligation,
liability or claim under, arising out of, or relating to this Lease, it being
hereby agreed that, except to the extent of Landlord's interest in the Property,
Landlord, the assets of Landlord, or if Landlord is a partnership, its partners
whether general or limited, or if Landlord is a corporation, Landlord, its
directors, officers or
-22-
shareholders, or if Landlord is a limited liability company, Landlord and its
members and managers shall never be liable for any judgments, claims,
obligations or liabilities under, arising out of, or relating to this Lease. The
foregoing will not apply to any claim of Tenant against Landlord based upon any
misrepresentation or breach of warranty by Landlord under paragraph 30.6 for
which Tenant gives Landlord written notice of the claimed misrepresentation or
breach of warranty no later than the end of the five hundred fortieth (540th)
day after the commencement date of the Lease Term. Thereafter, the above
limitation on claims by Tenant shall apply to all claims of Tenant, including
claims based upon a misrepresentation or breach of warranty by Landlord under
paragraph 30.6.
17. NOTICES:
-------
All bills, statements, notices or communications which Landlord may desire
or be required to give to Tenant shall be deemed sufficiently given or rendered
if in writing and either delivered to Tenant personally or sent by a nationally
recognized overnight courier service, or sent by registered or certified U.S.
mail, postage prepaid, return receipt requested, addressed to Tenant at the
address set forth below and the time of rendition thereof of the giving of such
notice or communication shall be deemed to be (i) the time when the same is
delivered to Tenant, if delivered personally, (ii) the next business day, if
sent by overnight courier, or (iii) three (3) business days after deposit in the
mail as herein provided. Notices to Tenant shall be sent to the following
address:
Tenant:
ASM Lithography, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Controller
Landlord:
▇▇▇▇ Companies US, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Any notice by Tenant to Landlord must be given in the same manner, but addressed
to Landlord at the address set forth
-23-
above, or in case of subsequent change upon notice given, to the latest address
furnished.
18. HOLDING OVER:
------------
Should Tenant continue to occupy the Premises after expiration of the Lease
Term or any renewal or renewals thereof, such tenancy shall be from month to
month, and basic monthly rent shall continue to be due at the monthly rent in
effect for the last month of the Lease Term, prorated on a daily basis and based
upon a thirty-day month. Either Landlord or Tenant may terminate such continued
tenancy upon thirty (30) days' written notice to the other party.
19. SUBORDINATION:
-------------
This Lease and the rights of Tenant shall be and are subject and
subordinate at all times to the lien of any first mortgage or deed of trust now
or hereafter in force against the Property, provided, however, that (i) in the
case of any mortgage or deed of trust encumbering the Property as of the date of
this Lease, Landlord will obtain, prior to the commencement of the Lease Term,
an agreement between the beneficiary or mortgagee thereof and Tenant that so
long as no default exists hereunder and Tenant attorns to Landlord's successor
pursuant to the provisions of this Lease, no termination of such encumbrance (or
any proceeding in connection therewith) shall disturb Tenant's possession of the
Premises and this Lease shall remain in full force and effect; and (ii) in the
case of any first mortgage or deed of trust encumbering the Property after the
date hereof, the beneficiary or mortgagee thereof agrees, either in such
encumbrance or in a separate agreement with Tenant, that so long as no default
exists under this Lease and Tenant attorns pursuant to Landlord's successor
pursuant to the provisions of this Lease, no foreclosure of such encumbrance (or
any proceeding in connection therewith) shall disturb Tenant's possession of the
Premises and this Lease shall remain in full force and effect. Tenant shall
execute such further instruments confirming the subordination of this Lease to
the lien of any such first mortgage or deed of trust as shall be requested by
Landlord.
20. ESTOPPEL CERTIFICATE:
--------------------
Tenant shall at any time and from time to time, upon not less than fifteen
(15) days prior written notice from Landlord, execute, acknowledge and deliver
to Landlord and any other
-24-
parties designated by Landlord, a statement in writing certifying (a) that this
Lease is in full force and effect and is unmodified and that Tenant has taken
possession of the Premises and has accepted and approved the condition of the
Premises and the Tenant Improvements (or, if modified, or disapproved, stating
the nature of such modification or disapproval), (b) the date to which the
rental and other charges payable hereunder have been paid in advance, if any,
and (c) that there are, to Tenant's knowledge, no uncured defaults on the part
of Landlord hereunder (or specifying such defaults if any are claimed). Any such
statement may be furnished to and relied upon by any prospective purchaser,
tenant or encumbrancer of all or any portion of the Property and shall include
any further statement that a good faith purchaser, tenant or encumbrancer would
reasonably require.
Landlord shall at any time and from time to time, upon not less than thirty
(30) days prior written notice from Tenant, execute, acknowledge and deliver to
Tenant and any other parties designated by Tenant, a statement in writing
certifying (a) that this Lease is in full force and effect and is unmodified
(or, if modified, stating the nature of such modification), (b) the date to
which the rental and other charges payable hereunder have been paid in advance,
if any, and (c) that there are, to Landlord's knowledge, no uncured defaults on
the part of Tenant hereunder (or specifying such defaults if any are claimed).
Any such statement may be furnished to and relied upon by any prospective
sublessee, assignee or encumbrancer of all or any portion of Tenant's interest
in the Property and shall include any further statement that a good faith
sublessee, assignee or encumbrancer would reasonably require.
21. SERVICE CHARGE:
--------------
Tenant agrees to pay a service charge equal to one percent (1%) per month
or any portion thereof of any payment of monthly base rent payable by Tenant
hereunder which is not paid within ten (10) business days from the date due, or
of $5.00 per month or portion thereof, whichever is greater. Such service
charge shall only be assessed against Tenant if Tenant has failed to pay the
monthly base rent within ten (10) business days of the date due more than twice
in a 12-month period during the Lease Term, and Landlord has delivered to Tenant
notice of such failure more than twice in such 12-month period.
-25-
22. BINDING EFFECT:
--------------
The word "Tenant", wherever used in this Lease, shall be construed to mean
tenants in all cases where there is more than one tenant, and the necessary
grammatical changes required to make the provisions hereof apply to
corporations, partnerships, limited liability companies, or individuals, men or
women, shall in all cases be assumed as though in each case fully expressed.
Each provision hereof shall extend to and shall, as the case may require, bind
and inure to the benefit of Landlord and Tenant and their respective heirs,
legal representatives, successors and assigns, provided that this Lease shall
not inure to the benefit of any heir, legal representative, transferee or
successor of Tenant except as expressly provided in this Lease.
Landlord may assign its right, title, and interest in the Property and
under this Lease, and such assignment shall thereupon automatically terminate
Landlord's obligations under this Lease, provided that the assignee shall
assume, in writing, the Landlord's obligations under this Lease arising from
the date of assignment.
23. MEMORANDUM:
----------
Landlord and Tenant shall execute and deliver a short form or memorandum of
this Lease, satisfactory in form and substance to Landlord and Tenant, for
recording in the proper office or offices in the county in which the Property is
located.
24. QUIET ENJOYMENT:
---------------
So long as Tenant is not in default under this Lease (after expiration of
any applicable notice and cure periods), Tenant (and any subtenant or assignee
of Tenant permitted pursuant to the terms of this Lease) shall peaceably and
quietly have, hold and enjoy the Premises 24 hours each day during the term
hereof, subject to force majeure, casualty, condemnation and other similar
events beyond Landlord's reasonable control (but subject to Landlord's
obligations under this Lease). Notwithstanding the foregoing, defects in
Landlord's title, or foreclosure or other enforcement of Landlord's lender's
lien shall not be excluded from Landlord's covenant of Tenant's quiet enjoyment.
25. BROKER:
------
In connection with the lease of the Premises from Landlord to Tenant,
Landlord shall pay brokers' commissions to CB
-26-
Commercial Real Estate Group, Inc. (▇▇▇▇ ▇▇▇▇▇) pursuant to a separate
agreement. With the exception of such commission, Landlord and Tenant each
represent to the other that it has not entered into any agreement or incurred
any obligation which might result in the obligation to pay a leasing or
brokerage commission or finder's fee with respect to this transaction. Landlord
and Tenant each agree to indemnify, defend, protect and hold the other harmless
from and against any and all losses, claims, damages, costs or expenses
(including reasonable attorneys' fees) which the other may incur as a result of
any claim made by any person to a right to a leasing or brokerage commission or
finder's fee in connection with this transaction to the extent such claim is
based, or purportedly based, on the acts or omissions of Landlord or Tenant, as
the case may be.
26. RIDER:
-----
If a rider is attached to this Lease, the provisions therein shall be an
integral part of this Lease.
IN WITNESS WHEREOF, the respective parties hereto have caused this Lease to
be executed the day and year first above written.
▇▇▇▇ COMPANIES US, INC.,
a Minnesota corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
------------------------------
Its: VP
----------------------------
LANDLORD
ASM LITHOGRAPHY, INC., a
Delaware corporation
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Its: Secretary / Treasurer
----------------------------
TENANT
-27-
RIDER TO LEASE AGREEMENT
DATED AUGUST 15th, 1997
BETWEEN
▇▇▇▇ COMPANIES US, INC., AS LANDLORD,
AND
ASM LITHOGRAPHY, INC., AS TENANT
THIS RIDER is an integral part of the attached Lease Agreement between ▇▇▇▇
Companies US, Inc., as Landlord, and ASM Lithography, Inc., as Tenant. In the
event of any conflict between the two, the terms of this Rider will govern.
This Rider and the attached Lease Agreement are called the "Lease."
27. PARKING:
-------
At no additional charge to Tenant, Landlord will provide Tenant with three
hundred forty-eight (348) employee and visitor vehicular parking spaces in the
general parking areas appurtenant to the Building. Landlord has no obligation
to provide covered parking. The parking spaces will be available to Tenant
twenty-four (24) hours a day, during each day of the Term hereof, except that
Landlord has no duty to police the parking spaces, and such availability will be
subject to force majeure, casualty, condemnation and other similar events beyond
Landlord's reasonable control.
28. DECLARATION, GROUND LEASE, AND SUBGROUND LEASE:
----------------------------------------------
The Property, the Building, and the Premises are subject to the terms and
conditions of the Declaration attached hereto as Exhibit A. Tenant's use of the
Property, the Building, and the Premises shall be in full compliance with the
terms and conditions of the Declaration. Without limitation, Tenant acknowledges
that Tenant's use of the Property, Building and Premises is strictly regulated
by the Declaration. Tenant represents and warrants to Landlord that Tenant has
reviewed, understands, and agrees to use the Property, Building and Premises in
full compliance with the requirements of the Declaration at all times.
This Lease is also subject and subordinate to (a) the Arizona State
University Research Park Ground Lease dated October 8, 1984 between the Arizona
Board of Regents and ▇▇▇▇▇-▇▇▇▇▇▇▇ Research Park, Inc. (the "Ground Lease"), and
(b)
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the Subground Lease between ▇▇▇▇▇-▇▇▇▇▇▇▇ Research Park, Inc. and Landlord dated
August ___, 1997 (the "Subground Lease").
29. FINANCIAL INFORMATION:
---------------------
Tenant represents and warrants to Landlord that the financial information
provided to Landlord before the execution of this Lease accurately states the
financial condition of Tenant as set forth therein and that such information is
true and accurate as presented. Tenant further represents and warrants to
Landlord that there has been no material adverse change in the financial
condition of Tenant between the effective date of the information delivered to
Landlord and the date of this Lease. Tenant acknowledges that, but for the
truth and completeness of the financial information given to Landlord, as well
as the truth of the foregoing representations, Landlord would not have entered
into this Lease with Tenant.
30. TENANT IMPROVEMENTS AND OTHER INCENTIVES:
----------------------------------------
30.1 Landlord shall provide, at Landlord's sole cost and expense, the base
Building with parking lot, driveways, sidewalks, exterior lighting and
landscaping. Landlord shall also provide an Allowance for the Tenant
Improvements to the Building not to exceed $86.20 per square foot. The base
Building and the other improvements described above will consist of the basic
structure with no specific or particular improvements intended for Tenant.
30.2 Landlord will use reasonable efforts to cause the Building and
related improvements and the Tenant Improvements to be constructed as
economically as possible, and will use competitive bidding where practicable.
30.3 Landlord will construct the Tenant Improvements based upon
specifications mutually agreed upon by Landlord and Tenant. Landlord and Tenant
shall work together cooperatively to produce a preliminary site plan and floor
plans by no later than August 22, 1997 (the "Preliminary Plan Approval Date")
and final plans and specifications by no later than November 10, 1997 (the
"Final Plan Approval Date"). If Landlord and Tenant are unable to determine
either the preliminary site plan and floor plans by the Preliminary Plan
Approval Date or the final plans and specifications by the Final Plan Approval
Date, every day of delay will operate to extend the Delivery Date under
paragraph 13 by one (1) day. Further, if all approvals required under the
Declaration, the Ground Lease and the Subground Lease
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are not obtained by September 21, 1997, every day of delay will operate to
extend the Delivery Date under paragraph 13 by one (1) day. Additionally, if
Landlord, acting diligently, is unable to obtain from the City of Tempe a site
permit by October 1, 1997 and, subsequently, the shell building permit by
October 31, 1997, then every day of delay thereafter in obtaining either permit
will operate to extend the Delivery Date by one (1) additional day. The Building
and the Tenant Improvements will be constructed in a good and workmanlike
manner, free of mechanics' and materialmen's liens, in accordance with the terms
of this Lease and all applicable laws, rules and regulations.
Landlord and Tenant will agree on the architect designing the Tenant
Improvements. Landlord will be required to construct or provide no additional
improvements, except as provided below. Landlord will commence and complete
construction of the Tenant Improvements with all reasonable diligence subject,
however, to the provisions of paragraph 30.1. The construction work for the
Building and the Tenant Improvements will be done by an affiliate of Landlord,
and Landlord shall cause such affiliate to solicit bids for each major
subcontract from qualified, licensed subcontractors.
30.4 If the actual cost of the Tenant Improvements exceeds the Allowance,
Tenant will pay the difference by a cash payment made to Landlord within ten
(10) business days following the issuance of the certificates of occupancy for
the Building and the Tenant Improvements unless Landlord and Tenant agree
instead to include the excess Tenant Improvements costs in the Total Project
Cost so as to amortize the excess by an increase in base rent through the Lease
Term.
30.5 The Tenant Improvements will be the property of Landlord and upon
expiration or termination of this Lease, Tenant will deliver the Building,
including the Tenant Improvements, to Landlord in good condition, normal wear
and tear excepted and except for damage to be repaired by Landlord pursuant to
the provisions of this Lease.
30.6 Landlord hereby represents and warrants to Tenant the following with
respect to the Premises, which shall be true and correct upon completion of the
Building and the Tenant Improvements:
(a) the Building is structurally sound and mechanical and electrical
systems of the Building are in good working order;
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(b) the Property (including the Building) complies with all legal
requirements (including without limitation the Americans With Disabilities Act
of 1990), regulatory standards and codes for its current use and the current use
of the Building and the Property is in conformance with all applicable
ordinances and zoning, excepting Tenant's own design error;
(c) Landlord has no actual knowledge (without any investigation) of any
requirements by any jurisdictional or environmental agency or department of any
work which is required to be done at the Property;
(d) Landlord has no actual knowledge (without any investigation) that there
is, or ever has been, any Hazardous Materials located on, in or around the
Property, nor to Landlord's actual knowledge (without any investigation) has
there occurred a violation of any Hazardous Materials Laws at the Property; and
(e) Landlord has no actual knowledge (without any investigation) of any
claims, disputes or litigation of any kind, pending or threatened, with respect
to the Property.
31. RENEWAL OPTION(S):
-----------------
Provided that Tenant is not in default under this Lease either at the time
it exercises the Renewal Options set forth below, or at the date a Renewal Term
begins, Tenant will have the right to renew this Lease for two (2) successive
five-year terms (the "Renewal Terms") by giving notice of exercise of the
Renewal Option to Landlord at least six (6) months before the end of the Lease
Term and the first Renewal Term, as the case may be. If Tenant fails to deliver
timely written notice of exercise of a Renewal Option to Landlord, the Renewal
Options shall lapse and Tenant will have no further privilege to extend the term
of this Lease.
Each Renewal Term shall be on the same terms and conditions of this Lease
(unless by their very nature inapplicable), except that the base rent payable by
Tenant to Landlord during each Renewal Term shall be based on the prevailing
"market rental rate" for comparable space in competing buildings of similar
size, type, quality and location as reasonably calculated by Landlord for each
Renewal Term, but in no event less than the rate in force at the end of the
--- -- -- ----- ----
preceding term.
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In the event Landlord and Tenant are unable to mutually agree on the
"market rental rate" to be applied to the Property, Landlord and Tenant shall
mutually select an MAI commercial real estate appraiser, and the opinion of such
appraiser shall be binding upon both Landlord and Tenant. If Landlord and
Tenant fail to mutually select such an MAI appraiser, the president of the
Arizona Chapter of the Appraisal Institute shall select the appraiser.
In addition to paying the base rent determined pursuant to this paragraph,
Tenant will continue to pay all other sums required under the Lease.
If this Lease or Tenant's right to possession of the Building shall expire
or terminate for any reason whatsoever before Tenant exercises the Renewal
Options, or if Tenant has sublet or assigned all or any portion of the Building,
other than to a Tenant Affiliate, then immediately upon such expiration or
termination, subletting or assignment, the Renewal Options shall simultaneously
terminate and become null and void. The Renewal Options are personal to Tenant.
Under no circumstances shall a subtenant or an assignee have the right to
exercise the Renewal Options, other than a Tenant Affiliate. Time is of the
essence of this provision.
32. EXPANSION:
---------
32.1 Although Tenant does not now wish to have constructed a larger
facility, Tenant may in the future desire to expand the Building. Landlord is
willing to permit the construction of additional space (the "Expansion Space")
to the Building and will agree to construct, or to cause the construction of,
the Expansion Space requested by Tenant, all in accordance with and subject to
the following terms and conditions of this paragraph 32.
32.2 If Tenant decides it would like to have the Building expanded at any
time prior to expiration of the Lease Term, Tenant shall deliver a written
notice to Landlord not later than one (1) year before the Lease Term expires
specifying the number of additional square feet requested, the general
configuration of the Expansion Space, the tenant improvements requested by
Tenant to be installed by Landlord in the Expansion Space and the target date
for completion of the Expansion Space.
32.3 If Tenant's notice to Landlord is delivered within the first two (2)
years of the Lease Term and if ▇▇▇▇ Companies US,
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Inc. is still the Landlord, then within sixty (60) days following receipt of
Tenant's written request for such expansion, Landlord will deliver to Tenant a
written response which will either (A) set forth (i) Landlord's good faith
estimate of the total cost to construct the Expansion Space in adherence to the
same construction standards set forth in this Lease for the Building plus a 6%
fee to Landlord; (ii) Landlord's good faith estimate of the increase in monthly
base rent expected to result from the Expansion Space, calculated using the
applicable rental constant under paragraph 3; and (iii) the expected time to
complete the Expansion Space, including the projected time to prepare and agree
upon plans and specifications and the time to obtain necessary financing,
permits, consents and approvals; or (B) advise Tenant that Landlord elects not
to construct the Expansion Space for any of the reasons set forth in paragraph
32.5 below. If Landlord provides a response under subparagraph (A) above, then
Tenant will notify Landlord within thirty (30) days of Tenant's receipt of
Landlord's response whether Tenant desires to proceed with the expansion.
32.4 If Tenant's notice to Landlord is delivered after the first two (2)
years of the Lease Term or if ▇▇▇▇ Companies US, Inc. is not still the Landlord,
then within sixty (60) days following receipt of Tenant's written request for
such expansion, Landlord will deliver to Tenant a written response which will
either (A) set forth (i) Landlord's good faith estimate of the total cost to
construct the Expansion Space in adherence to the same construction standards
set forth in this Lease for the Building plus a 6% fee to Landlord; (ii)
Landlord's good faith estimate of the increase in monthly base rent expected to
result from the Expansion Space, calculated using the applicable rental constant
under paragraph 3; and (iii) the expected time to complete the Expansion Space,
including the projected time to prepare and agree upon plans and specifications
and the time to obtain necessary financing, permits, consents and approvals; or
(B) advise Tenant that Landlord elects not to construct the Expansion Space for
any reason whatsoever, including without limitation, the reasons set forth in
paragraph 32.5 below. If Landlord provides a response under subparagraph (A)
above, then Tenant will notify Landlord within sixty (60) days of Tenant's
receipt of Landlord's response whether Tenant desires Landlord to proceed with
the expansion, during which time Tenant, in its sole discretion, may elect to
obtain competitive bids.
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32.5 Landlord may decline to construct the Expansion Space requested by
Tenant if:
(a) Landlord is unable to obtain financing on terms and conditions
satisfactory to Landlord.
(b) The Expansion Space is less than 30,000 square feet.
(c) The Expansion Space is not permitted by applicable law, the
Ground Lease, the Subground Lease or any recorded covenants,
conditions and restrictions (including without limitation, the
Declaration).
(d) Tenant's financial condition has, in the sole opinion of
Landlord, adversely changed since the date of the Lease so as to
not be acceptable to Landlord.
(e) Tenant is, or has been during the Lease term, in default under
this Lease or any event has occurred which with the giving of
notice or passage of time, or both, would constitute an event of
default on the part of Tenant.
32.6 If Landlord is to proceed with construction of the Expansion Space
under either paragraph 32.3 or 32.4 above, then the parties will enter into a
written amendment to the Lease setting forth the terms and conditions applicable
to the Expansion Space, including without limitation the following:
(a) If the Expansion Space is "ready for occupancy" (as defined in
paragraph 2 above) after the first five (5) years of the Lease
Term, then the initial Lease Term for the Property (including the
Expansion Space) will be extended so that it expires ten (10)
years from the date the Expansion Space is "ready for occupancy".
This extension is independent of and in addition to the Renewal
Options set forth in paragraph 31.
(b) Base rent for the Expansion Space will be calculated using the
applicable Rental Constant as set forth in paragraph 3 (but with
the applicable Subground Lease Annual Payment included only once
in calculating base rent in
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the aggregate for both the original Building and the Expansion
Space). If the initial Lease Term is extended as provided above,
then (i) the Rental Constant for calculating annual base rent for
years 16 through 20, or portion thereof, and, if applicable, for
years 21 through 25, or portion thereof, shall be computed on the
basis of a 2% yearly increase compounded annually in base rent
over years 11 through 15 for calculating base rent for years 16
through 20 and then, if applicable, over years 16 through 20 for
calculating base rent for years 21 through 25, and (ii) the
Subground Lease Annual Payment shall be equal to the applicable
annual rent payable under the Subground Lease for the
corresponding year of the Lease Term.
The amendment will further state that, except as specifically provided to
the contrary in this paragraph 32, all of the terms and conditions of the Lease
shall apply to the Expansion Space. If the parties cannot agree upon the
amendment in sufficient time for Landlord to commence and complete the Expansion
Space by the target completion date, then Landlord shall not be obligated
thereafter to proceed with construction of the Expansion Space.
32.7 If Landlord elects under subpart (B) of either paragraphs 32.3 or
32.4 not to construct or have constructed the Expansion Space, or if Tenant is
not satisfied with Landlord's proposal for the Expansion Space, Tenant shall
have the right to construct the Expansion Space at its own expense in accordance
with the terms of this paragraph 32. If Tenant elects to construct the Expansion
Space, all construction must be performed in accordance with plans mutually
acceptable to Landlord and Tenant and complying with all applicable laws, rules
and regulations, the Ground Lease, the Subground Lease and recorded covenants,
conditions and restrictions (including without limitation, the Declaration).
Tenant will be responsible for obtaining at Tenant's expense all necessary
permits, consents and approvals, and Landlord shall cooperate with and assist
Tenant as necessary to enable Tenant to complete the desired construction.
Tenant agrees to carry insurance in commercially reasonable coverages and
amounts with respect to the construction satisfactory to Landlord. Tenant shall
also obtain payment and performance bonds to insure for the benefit of Landlord
the completion and payment for the construction work and shall, prior to
beginning construction, record a bond
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satisfying the statutory requirements for keeping the Premises lien free with
respect to Tenant's construction of the Expansion Space. If the construction is
undertaken and paid for by Tenant, Tenant will not be required to pay base
monthly rent with respect to the Expansion Space for any period during the Lease
Term as extended, including during any Renewal Terms, but shall pay Operating
Costs. Under no circumstances shall Landlord be required to obligate itself or
encumber the Premises for financing to pay the costs for Tenant's construction
of the Expansion Space.
32.8 The duties and obligations of Landlord under this paragraph 32 shall
not be binding upon and need not be performed by any mortgagee, trust deed
beneficiary or other holder of a financing lien on the Premises or their
successors and assigns; provided, however, the foregoing shall not impair or
otherwise prejudice Tenant's right under paragraph 32.7 to construct the
Expansion Space.
33. AGENCY DISCLAIMER.
-----------------
Landlord and Tenant acknowledge and agree that CB Commercial Real Estate
Group, Inc. is representing Tenant (ASM Lithography, Inc.) in this build-to-
suite lease transaction although CB Commercial Real Estate Group, Inc. is also
representing Landlord (▇▇▇▇ Companies US, Inc.) in the separate ground lease
transaction between Price-Elliot Research Park, Inc., an Arizona nonprofit
corporation, and ▇▇▇▇ Companies US, Inc.
34. PROVISIONS REGARDING GROUND LEASE AND SUBGROUND LEASE.
-----------------------------------------------------
34.1 Landlord is the lessee and ▇▇▇▇▇-▇▇▇▇▇▇▇ Research Park, Inc. (▇▇▇▇▇-
▇▇▇▇▇▇▇), is the lessor under the Subground Lease pursuant to which Landlord
acquired (or shall acquire) its interest in the Premises. ▇▇▇▇▇-▇▇▇▇▇▇▇ is the
lessee and The Arizona Board of Regents ("Regents") is the lessor under the
Ground Lease pursuant to which ▇▇▇▇▇-▇▇▇▇▇▇▇ acquired its interest in the
Premises. Regents, ▇▇▇▇▇-▇▇▇▇▇▇▇ and Landlord also have entered into (or shall
enter into) a Recognition, Nondisturbance and Attornment Agreement (the "RNA
Agreement") for the benefit of Landlord.
34.2 Landlord represents, warrants and covenants that:
(a) Landlord had (or shall have upon execution and delivery) full
power, right and authority to
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execute and deliver the Subground Lease and the RNA Agreement.
(b) Landlord shall maintain the Subground Lease in full force and
effect and in good and current standing at all times during the
Lease Term and any extensions of the Lease Term.
(c) Landlord shall perform and observe, in timely fashion, all
covenants, conditions, obligations and agreements of Landlord
under the Subground Lease and the RNA Agreement, except to the
extent that Tenant is required under this Lease to perform such
obligations.
(d) Landlord shall not waive, execute any agreement that would be
interpreted as waiving, or in any manner release or discharge
any covenants, conditions, obligations or agreements under or
related to (1) the Subground Lease to be performed or observed
by ▇▇▇▇▇-▇▇▇▇▇▇▇ or (2) the RNA Agreement to be performed or
observed by Regents, or condone any nonperformance of either
such agreement.
34.3 Landlord hereby authorized Tenant, upon the occurrence of any default
under the Subground Lease, to: (i) enforce Landlord's rights under the Subground
Lease and to receive any performance of ▇▇▇▇▇-▇▇▇▇▇▇▇ thereunder, and or (ii)
pay or perform such obligations of Landlord under the Subground Lease in such
manner and to such extent as it may deem necessary. If Tenant elects to take
any action as set forth in the preceding sentence, Tenant shall notify Landlord
and any lender of Landlord (but not more than one such lender) of the action it
will undertake. Landlord hereby authorizes and directs ▇▇▇▇▇-▇▇▇▇▇▇▇, upon such
default by Landlord and election by Tenant, to make and render all acts and
performances required of ▇▇▇▇▇-▇▇▇▇▇▇▇ under the Subground Lease directly to
Tenant, and to accept from Tenant all acts and performances required of Landlord
under the Subground Lease. Landlord hereby relieves Tenant and ▇▇▇▇▇-▇▇▇▇▇▇▇
from any liabilities to Landlord by virtue of their actions in accordance with
this paragraph. The exercise of any right or authority herein granted shall not
cure nor waive any default by Landlord nor invalidate any act done hereunder
because of any default.
-37-
34.4 Landlord does hereby make, constitute and appoint Tenant and its
successors and assigns Landlord's true and lawful attorney in fact, in
Landlord's name, place and stead, or otherwise, upon the occurrence of any
default by Landlord under this Subground Lease, and at any time while such
default is continuing, to do all acts and to execute, acknowledge, obtain and
deliver any and all instruments, documents, items or things necessary, proper or
required as a term, condition or provision of the Subground Lease or in order to
exercise any rights of Landlord under the Subground Lease or to receive and
enforce any performance due Landlord under the Subground Lease. The power of
attorney given herein is a power coupled with an interest and shall be
irrevocable so long as this Lease remains in effect.
34.5 In addition to the rights set forth in paragraph 34.3 above, which
are exercisable in the manner set forth therein, the occurrence of a default by
Landlord under the Subground Lease shall constitute a default hereunder that
shall entitle Tenant to exercise all of its other rights and remedies hereunder
in the manner set forth herein.
34.6 No change, amendment or modification shall be made to the Subground
Lease without the prior written approval of Tenant, which approval Tenant shall
not unreasonably withhold. Notwithstanding the previous sentence, Landlord shall
have the right without Tenant's consent to enter into modifications of the
Subground Lease which would not (i) materially impair Landlord's rights or
privileges under the Subground Lease, or (ii) materially increase Landlord's
duties or obligations under the Subground Lease; provided that any increase in
the rent or other monetary payments required by Landlord under the Subground
Lease shall be deemed material.
34.7 Landlord shall immediately (i) notify Tenant in writing of any
default or breach under the Subground Lease or of any failure of performance or
other condition that would become an actual default or breach if notice was
given and such failure of performance or other condition was not cured within
the required time period, and (ii) deliver to Tenant true and complete copies of
all communications respecting a default or breach, alleged default or breach,
failure of performance, or other condition which with lapse of time or after
additional notice, or both, could become a default or breach by Landlord under
the Subground Lease, or otherwise relating to Landlord's good standing with
respect to the Subground Lease.
[SIGNATURES ON NEXT PAGE]
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▇▇▇▇ COMPANIES US, INC.,
a Minnesota corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------------
Its: VP
---------------------------
LANDLORD
ASM LITHOGRAPHY, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------
Its: SECRETARY/TREASURER
----------------------
TENANT
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