Mtv Lease Agreement

Exhibit 10.159

 

[***] DENOTES CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITHTHE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIALTREATMENT.

 

MTV LEASE AGREEMENT

 

ThisMTV Lease Agreement (this “Lease”) is madeas of the 6th day of January, 2006, by and between MICRONTECHNOLOGY, INC., a Delaware corporation (hereinafter referred to as the “Landlord”), and IM FLASH TECHNOLOGIES, LLC, a Delawarelimited liability company (hereinafter referred to as “Tenant”).

 

RECITALS

 

A.            Landlord and IntelCorporation (“Intel”) entered into that certain Master Agreement dated as ofthe 18th day of November, 2005 (the “MasterAgreement”) with respect to the formation of Tenant;

 

B.            Pursuant to the MasterAgreement, Landlord and Intel entered into that certain Limited LiabilityCompany Operating Agreement dated as of the 6th day of January, 2006(the “Operating Agreement”), pursuant towhich Landlord and Intel set forth their agreement regarding the operation ofTenant, of which Landlord and Intel are each Members (as defined in theOperating Agreement);

 

C.            Pursuant to the MasterAgreement, Landlord and Tenant have entered into that certain ManufacturingServices Agreement as of the 6th day of January, 2006 (the “Manufacturing Services Agreement”), which controls Landlord’sand Tenant’s relationship with respect to certain services provided by Landlordin connection with the manufacture and production of certain product describedin the Manufacturing Services Agreement (the “Product”);

 

D.            Landlord is the owner of awafer fabrication building (the “Building”)situated on a parcel of land located in Manassas, Virginia, more particularlydescribed on Exhibit A attached hereto (the “Land”;the Building and the Land collectively, the “MTV Site”);

 

E.             The Building consists of twomodules, known as “Module 1” and “Module 2”, each of which containsapproximately 78,000 square feet of clean room space;

 

F.             Pursuant to the OperatingAgreement, Landlord has agreed to lease to Tenant, and Tenant has agreed tolease from Landlord, Module 1, which is depicted on Exhibit B attachedhereto (the “Premises”);

 

NOW,THEREFORE, in consideration of the mutual premises, covenants, terms andconditions herein contained and intending to be legally bound, Landlord and Tenanthereby agree as follows:

 

ARTICLE 1

GRANT

 

1.1                       Premises.  Subject to the provisions of the OperatingAgreement and the Manufacturing Services Agreement, Landlord, in considerationof its membership interest in Tenant, does hereby lease the Premises toTenant.  The configuration of thePremises within the

 



 

Building maybe modified from time to time by mutual agreement of Landlord and Tenant.  Tenant acknowledges that Landlord retains theright to use up to 1,000 square feet of the Premises as shown on Exhibit B forthe operation of DRAM tools used in connection with Landlord’s manufacturingactivities in Module II of the Building.

 

1.2                       CommonAreas.  Tenant shall have thenonexclusive right, in common with Landlord and any other occupants of the Buildingand the Land, to use (1) the public and common areas of the Building and anyother building amenities or facilities which are necessary in connection withthe manufacturing of Product as provided by the Manufacturing ServicesAgreement or as otherwise contemplated by the Manufacturing Services Agreement;and (2) any entrances, stairs, rights of pedestrian and vehicular ingress,egress and access, elevators, driveways, alleys, fire corridors, publicrestrooms, cafeterias, parking lots, and loading docks within the Building orlocated on the Land that are generally necessary in connection with themanufacturing of Product as provided by the Manufacturing Services Agreement,all upon the terms and conditions hereinafter set forth (collectively, the “Common Areas”). Landlord shall be responsible at its expense to maintain the CommonAreas in accordance with Landlord’s standard of maintenance existing on thedate hereof.

 

1.3                       RightsRetained by Landlord.  Subject to theprovisions of the Manufacturing Services Agreement, Landlord hereby reservesthe following rights with respect to the Common Areas:  to establish reasonable andnon-discriminatory rules and regulations for the use thereof; to use or permitthe use by others to whom Landlord may have granted such rights; to close allor any portion thereof as may be deemed necessary by Landlord to prevent adedication thereof or the accrual of any rights by any person or the publictherein; and to change the layout of the Common Areas, including the right to reasonablyadd to or subtract from their shape and size, whether by the addition ofBuilding improvements or otherwise, provided in all such cases reasonablyequivalent access to the Premises shall be maintained.

 

1.4                       Conditionof Premises.  The Parties acknowledgethat the Premises need to be improved by Landlord as specified in Exhibit Cattached hereto so that the Premises will be ready for the installation of theTenant’s manufacturing tools (as defined therein, the “Improvements”).  At such time as the Improvements have beencompleted by Landlord and Tenant has approved the Improvements in accordancewith the sign off procedures provided below, Tenant shall take possession ofthe Premises.  Tenant will be deemed to haveapproved the Improvements when all of the following sign off procedures arecompleted:

 

(a)           Landlordshall have provided written notification to the Tenant that the clean roomballrooms, bay and chases have been certified by Landlord’s micro contaminationteam to have met Landlord’s design parameters for the Premises;

 

(b)           Landlordand/or its contractor(s) shall have provided written notification that the toolutility generation and distribution systems have been installed, are operatingas designed, and are ready for tool connection;

 

(c)           Landlordshall have provided written notification to Tenant that its facilitiestechnicians are all trained in the operation and maintenance of the systemsthat are part of the Improvements;

 



 

(d)           Landlordshall have provided written notification to Tenant that the bulk and processchemical and gas systems have been correctly installed and qualified asrequired for the NAND manufacturing process chemistry used to manufacture theProduct; and

 

(e)           Landlordshall have provided to Tenant a copy of the certificate of occupancy for thePremises.

 

Following receipt of the notificationpursuant to Subsection (a) and while the approval process continues, Tenant maycommence installation of its manufacturing tools.

 

ARTICLE 2

LEASE TERM

 

2.1                       Term.  The term of this Lease (the “Term”) shall begin on the date hereof (the “Commencement Date”) and continue for a period of ten (10)years and thereafter until the Liquidation Date, as defined in the OperatingAgreement (the “Expiration Date”); provided, however, thatthe Term shall terminate on the earlier to occur of (i) a Liquidation Date thatoccurs prior to the Expiration Date, (ii) the termination or expiration of theManufacturing Services Agreement, (iii) the date on which the closing of theMicron [***] Purchase Option, as defined in the Operating Agreement, occurs, or(iv) the “Minority Closing” as defined in theOperating Agreement.

 

ARTICLE 3

RENT

 

3.1                       Rent.  Landlord and Tenant acknowledge and agreethat the consideration for this Lease recited in the Operating Agreementconstitutes valuable and adequate consideration for this Lease, and that,except as otherwise expressly set forth in Section 3.2 below, no furtherpayment from Tenant shall be required hereunder.

 

3.2                       OtherAmounts.  Landlord and Tenantacknowledge that Tenant’s share of the costs incurred by Landlord hereunder(including, for example, Real Estate Taxes as hereinafter defined, personalproperty and other ad valorem taxes paid by Landlord as referred to in Section4.2, services, utilities, insurance and maintenance), shall be reimbursed byTenant as a component of the costs of production pursuant to the terms of theManufacturing Services Agreement. Nothing in this Lease shall be construed as limiting or precluding theallocation of any costs or expenses as provided for in the ManufacturingServices Agreement, including, without limitation, any references herein thatLandlord is obligated to provide a certain thing or that an obligation is atthe expense of or at the cost of Landlord. No other costs besides those charged pursuant to the ManufacturingServices Agreement will be imposed on Tenant for occupation and use of thePremises pursuant to this Lease.

 

ARTICLE 4

TAXES

 

4.1                       RealEstate Taxes.  Landlord shall pay,prior to delinquency, all real estate taxes and assessments, general orspecial, which at any time during the Term may be assessed,

 

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levied, imposed upon, or grow or become dueand payable out of or in respect of, the Premises (the “Real EstateTaxes”).

 

4.2                       PersonalProperty Taxes.  Landlord and Tenantshall cooperate in the filing of personal property tax returns and payment ofall taxes, charges, and other governmental impositions assessed against, orlevied upon, Tenant’s trade fixtures, furnishings, equipment, and otherpersonal property, if any (collectively, “Tenant’s Personal Property”),located upon the Premises. Notwithstanding the preceding sentence, the Party to this Agreement thatis the owner of record of Tenant’s Personal Property shall pay, prior todelinquency, all aforementioned taxes, charges and other governmentalimpositions assessed against Tenant’s Personal Property.

 

ARTICLE 5

BUILDING SERVICES

 

5.1                       Services.  Landlord shall furnish all of the services toTenant that are necessary for its operations and production of the Product onthe Premises, in each case during such times and in such amounts and pursuantto such standards as provided in the Manufacturing Services Agreement,including but not limited to the following services:  (i) heating, ventilating and airconditioning; (ii) all utilities, including, without limitation, electricity,natural gas, telephone and water both for production and for sanitary uses;(iii) oil free (or clean dry) air, vacuum, specialty gases, ultra pure water,acid waste neutralization system and any other waste water treatment systemwithin the Building, (iv) janitor service; (v) security (vi) exhaust andabatement systems; and (vii) maintenance of (A) the structural elements of theBuilding, (B) the communications and network wiring serving the Building, (C)the mechanical, electrical, plumbing and fire/life safety systems serving theBuilding in general, (D) the Common Areas, and (E) the Building in general,including without limitation the roof thereof.

 

5.2                       Interruptionof Services.  Landlord shall beliable to Tenant as a result of the interruption of any services providedpursuant to Section 5.1 only (i) to the extent that such interruption is causedby Landlord, any of its agents, partners, employees, invitees or contractors,and (ii) by a claim brought under the Manufacturing Services Agreement, whichclaim shall be subject to limitations set forth in Article 12 thereof.

 

ARTICLE 6

USE; COMPLIANCE WITH LAWS

 

6.1                       Use.  Tenant agrees that it shall occupy and usethe Premises only for the purposes as contemplated by the ManufacturingServices Agreement and ancillary uses and for no other purposes (the “Permitted Use”). Landlord shall provide and maintain all occupancy related licenses andpermits legally necessary for the operation of the business within theBuilding, which excludes, without limitation, any intellectual propertylicenses relating to Tenant’s business. Tenant acknowledges that Landlord shall have access to and shall use thePremises as provided in the Manufacturing Services Agreement.

 

6.2                       Compliancewith Law. Tenant shall comply with allApplicable Laws as defined in the Master Agreement in its use of the Premises.

 

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6.3                       Compliancewith Insurance Requirements.  Tenantfurther agrees to obey and fully comply with all requirements and provisions ofany and all insurance policies which Landlord maintains, and shall not make orpermit any use of the Premises, or permit to be done anything in or upon thePremises or the Building, or bring or keep anything in the Premises or theBuilding, which may invalidate or increase the rate of insurance on theBuilding, its appurtenances, contents or operations.

 

6.4                       NoTenant Duties.  Landlord acknowledgesand agrees that Tenant shall have no duties or obligations with respect to therepair and/or maintenance of the Premises and that, except as may be otherwiseprovided in the Manufacturing Services Agreement, Landlord is solely responsiblefor the operations within the Premises. Notwithstanding the foregoing, Landlord acknowledges and agrees that anyofficer or employee of Tenant may, at any time, have access to the Premises.

 

ARTICLE 7

TENANT’S INSURANCE AND INDEMNITY

 

7.1                       PropertyInsurance.  Except as set forth inSection 7.3, at its expense, Tenant shall maintain property insurance insuringTenant’s tenant improvements in the Premises and Tenant’s personal propertyagainst loss due to causes typically insured against under “all risk” or “specialcauses of loss” policy forms, at a limit equal to the full insurablereplacement cost of such improvements and personal property, with coinsurancewaived and permitting the insured to waive subrogation rights prior to loss.

 

7.2                       LiabilityInsurance.  Except as set forth inSection 7.3, at its expense, Tenant shall, commencing on the first day of theTerm and continuing throughout the entire Term maintain or cause to bemaintained, under the provisions of the Manufacturing Services Agreement or otherwise,for the benefit of Landlord, Landlord’s lender, if any, and Tenant as theirinterests may appear, a comprehensive commercial public liability insurancepolicy against such risks as are customarily insured against which arise out ofthe use, occupancy, repair, maintenance or alteration of the Premises and allareas appurtenant thereto, including liability for the acts of Tenant’sindependent contractors with regard to any activities of such independentcontractors.  Such insurance shall have aminimum limit of ten million dollars ($10,000,000) per occurrence for bodilyinjury and property damage combined.

 

7.3                       MemberInsurance Programs.  Upon mutualagreement of the parties, Tenant may satisfy its obligations under Section 7.1and/or Section 7.2 by policies issued under any corporate insurance program(s)maintained by any of Tenant’s members.

 

7.4                       Noticeof Cancellation.  Reasonable effortswill be made to have all insurance required to be carried under this Article 7not be subject to cancellation or material change without at least thirty (30)days’ prior notice to Landlord and Landlord’s lender, if any, and suchinsurance shall be with insurance companies reasonably acceptable to Landlordand Landlord’s lender, if any, and shall name Landlord, Landlord’s lender, ifany, and Tenant as insureds, as their interests may appear.

 

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7.5                       Evidenceof Insurance.  Prior to thecommencement of the Term of this Lease, or as soon as is reasonably practicableafter that date, Tenant shall provide at Landlord’s request to Landlord andLandlord’s lender, if any, certificates of the insurance policies referred toin this Article 7.  Tenant also shallfurnish annually, to Landlord and Landlord’s lender, if any, throughout theTerm, certificates of renewals of such policies.

 

7.6                       Landlord’sRights.  If Tenant fails to procure,maintain and/or pay for, at the times and for the durations specified in thisLease, the insurance required under this Article 7, Landlord may (but withoutobligation to do so), without notice to Tenant, perform such obligations onbehalf of Tenant, and the cost thereof shall immediately become due and payableto Landlord.

 

7.7                       Indemnityof Landlord by Tenant.  Subject tothe provisions of the Manufacturing Services Agreement, Tenant shall indemnify,defend and save Landlord, its affiliates, partners, shareholders, members,directors, officers, employees and agents harmless from and against all losses,claims, costs, liabilities, fines and penalties of any nature (including,without limitation, reasonable attorneys’ fees and expenses) (collectively, “Claims”) arising or occurring, from and after the date ofthis Lease, out of (i) Tenant’s failure to comply with the terms and conditionsset forth in this Lease, (ii) any personal injury or death, damage to ordestruction of the Land or Building caused by the gross negligence or willfulacts or omissions of Tenant or its representatives and/or (iii) any other Claimmade by any affiliate, partner, member, director, officer, employee, visitor,invitee, licensee or lessee of Tenant against Landlord arising out of Tenant’suse of the Land or Building; provided, however, that for the purposes of thissection, in no event shall the actions or omissions of Landlord pursuant to theManufacturing Services Agreement be deemed to be gross negligence or willfulacts or omissions of Tenant.

 

ARTICLE 8

LANDLORD’S INSURANCE REQUIREMENTS

 

8.1           PropertyInsurance.  Landlord shall maintainproperty insurance insuring the Premises against loss due to causes typicallyinsured against under “all risk” or “special causes of loss” policy forms, at alimit equal to the full insurable replacement cost of the Building, withcoinsurance waived and permitting the insured to waive subrogation rights priorto loss.

 

8.2           LiabilityInsurance.  At its sole cost andexpense, Landlord shall, commencing on the first day of the Term and continuingthroughout the entire Term maintain for the benefit of Landlord, Landlord’slender, if any, and Tenant as their interests may appear, a comprehensivecommercial public liability insurance policy against such risks as arecustomarily insured against which arise out of Landlord’s activities relatingto the Premises including liability for the acts of Landlord’s independentcontractors with regard to any activities of such independent contractors.  Such insurance shall have a minimum limit often million dollars ($10,000,000) per occurrence for bodily injury and propertydamage combined.

 

8.3           Indemnityof Tenant by Landlord.  Landlordshall indemnify, defend and save Tenant, its affiliates, partners,shareholders, members, directors, officers, employees and agents harmless fromand against all Claims arising or occurring, from and after the date of thisLease, out of (i) Landlord’s failure to comply with the terms and conditionsset forth in this Lease

 

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(except as otherwise provided in Section5.2), (ii) any personal injury or death, damage to or destruction of thePremises, Tenant’s tenant improvements and Tenant’s personal property caused bythe gross negligence or willful acts or omissions of Landlord or itsrepresentatives and/or (iii) any other Claim made by any affiliate, partner,member, director, officer, employee, visitor, invitee, licensee or lessee ofLandlord against Tenant arising out of Landlord’s gross negligence or willfulmisconduct.

 

8.4                       Limitationon Tenant’s Claims.  Notwithstandinganything in this Lease to the contrary, if Tenant has any claim under thisLease against Landlord, for indemnity or otherwise, Tenant shall be required tobring such claim under another Joint Venture Document (as defined in the MasterAgreement) and not under this Lease if such claim can be made under such otherJoint Venture Document (notwithstanding that recovery under such claim may besubject to deductibles, caps or limitations on survival set forth therein);provided, however, that this limitation shall not apply to claims made byTenant against Landlord for damage to buildings, improvements, fixtures andmanufacturing tools and equipment.

 

ARTICLE 9

WAIVER OF SUBROGATION

 

Any other provisions of this Lease to thecontrary notwithstanding, if (a) either party shall suffer any loss required tobe insured against hereunder or (b) any portion of the Premises or Tenant’strade fixtures, equipment or other personal property in the Premises shall bedamaged or destroyed by fire, explosion or other casualty required to beinsured against hereunder, whether or not such loss, damage or destruction iscaused, or claimed to be caused, by the negligence or misconduct of Landlord orTenant, or any of their respective managers, members, officers, employees,agents, contractors or invitees, neither Landlord, Tenant nor their respectiveinsurance company(ies), shall have any right of action, by way of subrogationor otherwise, against Tenant or Landlord, or any of their respective managers,members, officers, employees, agents, contractors or invitees, arising fromsuch damage or destruction, and each policy of insurance required pursuant tothis Lease shall provide a waiver and release by the insurer of any suchright.  Landlord and Tenant further agreethat during or after Tenant’s occupancy of the Premises, each will indemnifyand hold the other harmless from any claim against the other made by way ofsubrogation by Landlord’s or Tenant’s liability and property insurancecarrier(s).

 

ARTICLE 10

ALTERATIONS

 

10.1                     Requirements.  Tenant may not make any replacement,alteration, improvement or addition to or removal from the Premises(collectively an “alteration”)without the prior written consent of Landlord, such consent not to be withheldif the alteration is commercially reasonable; provided, however, that Tenantmay make any alterations necessary or desirable in order for the services to beprovided under the Manufacturing Services Agreement.  Tenant agrees that each alteration shall beperformed in a good and workmanlike manner, and shall meet or exceed thestandards for construction and quality of materials established by Landlord forthe Building.  In addition, eachalteration shall be performed in compliance with all Applicable Laws. Eachalteration, whether temporary or permanent in character, made by

 

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Landlord or Tenant in or upon the Premisesshall become Landlord’s property and shall remain upon the Premises at theexpiration or termination of this Lease without compensation to Tenant.  Tenant shall not be obligated to remove suchalterations at the end of the Term. Notwithstanding anything to the contrary contained in this Section 10.1,alterations do not include the Associated Assets (as defined in Section 20.1below) that Tenant may remove as provided in Section 20.1.

 

10.2                     CovenantAgainst Liens.  Tenant shall notcause or permit any lien or encumbrance of any kind whatsoever, whether createdby act of Tenant, operation of law or otherwise, to attach to or be placed uponLandlord’s title or interest in the Building or the Premises, and any and allliens and encumbrances created by Tenant shall attach to Tenant’s interestonly.  Tenant covenants and agrees not tosuffer or permit any liens to be placed against the Building or the Premises asa result of work performed or materials supplied by or on behalf of Tenant andin case of any such lien attaching or claim thereof being asserted, Tenantcovenants and agrees no later than forty-five (45) days from notice to Tenantof the filing thereof to (i) cause it to be released and removed of record,(ii) deliver to Landlord a surety bond in an amount sufficient to discharge thelien, or (iii) provide Landlord, with endorsements (satisfactory to Landlord)to Landlord’s title insurance policy insuring against the existence of orattempted enforcement of such lien.  Inthe event that such lien is not released, removed, or bonded or insured overwithin said forty-five (45) day period, Landlord, at its sole option, may takeall action necessary to release and remove such lien (without any duty toinvestigate the validity thereof) and Tenant shall, within ten (10) daysfollowing notice, either before or after such release and removal, pay orreimburse Landlord for all sums, costs and expenses (including, withoutlimitation, reasonable attorneys’ fees and court costs) incurred by Landlord inconnection with removal of such lien.

 

ARTICLE 11

CASUALTY

 

11.1                     Damage.  If the Premises, or so much thereof as tocause the Premises to be unusable in furtherance of the terms of theManufacturing Services Agreement, are damaged by any casualty so as to causethe Premises to be uninhabitable, and the damage (exclusive of any property orimprovements installed by Tenant in the Premises) can be repaired in Landlord’sreasonable judgment within one hundred eighty (180) days without the payment ofan amount more than 120% of the amount of insurance proceeds, Tenant shallwaive all rights to any insurance proceeds therefor in favor of Landlord, andLandlord shall repair such damage as soon as practicable and this Lease shallcontinue in full force and effect. Landlord agrees to give Tenant written notice within sixty (60) daysafter the occurrence of any such damage or destruction indicating theanticipated time period of such restoration (the “RepairEstimate”).  If the Premises,or so much of thereof as to cause the Premises to be unusable in furtherance ofthe terms of the Manufacturing Services Agreement, are damaged by any casualty,and the damage (exclusive of any property or improvements installed by Tenantin the Premises) cannot be repaired in Landlord’s reasonable judgment withinone hundred eighty (180) days without the payment of an amount more than 120%of the amount of insurance proceeds, Landlord may give Tenant written noticewithin thirty (30) days after Landlord delivers to Tenant its Repair Estimateof Landlord’s intention to terminate this Lease, in which event this Leaseshall terminate as of the date of the occurrence of such damage.

 

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11.2                     InsuranceProceeds Upon Termination.  If thisLease is terminated as permitted under Section 11.1, all insurance proceedspayable with respect to the damage giving rise to such right of terminationshall be paid to Landlord or Landlord’s lender, if any.

 

ARTICLE 12

CONDEMNATION

 

12.1                     Notice.  Landlord and Tenant shall each notify theother if either party becomes aware that any portion of the Premises will betaken in condemnation proceedings or by exercise of any right of eminent domain(any such action being hereinafter referred to as a “Taking”),or if it becomes aware of the commencement of any proceedings which mightresult in a Taking.

 

12.2                     Taking.  In the event of the Taking of all or anyportion of the Premises renders the Premises unsuitable for Tenant’s businessobjectives, Tenant, at its sole election, may terminate this Lease as of thedate of such Taking.  In the event Tenantchooses not to terminate this Lease, the portion of the Premises so taken shallbe excluded from the definition of the Premises hereunder, and this Lease shallcontinue in full force and effect as to the remainder of the Premises.

 

12.3                     Award. Tenant shall be entitled to all condemnation awards granted on accountof the Taking of all or any portion of the Premises.

 

ARTICLE 13

ASSIGNMENT AND SUBLETTING

 

13.1                     NoLandlord Assignment. Landlord shall not have the right to transfer, assignor convey, in whole or in part, the Land or the Building or any or all of itsrights under this Lease; provided, however, that such prohibitionshall not apply to (i) any transfer, assignment or conveyance by Landlord to anAffiliate (as defined in the Operating Agreement) of Landlord, (ii) any leasesof any portion of the Land or the Building other than the Premises to any thirdparty provided that such lease does not materially adversely affect theoperation of the Tenant’s business at the Premises and is to a third party whois not manufacturing and is only providingservices or supplies incidental toLandlord’s operations, or (iii) the granting of any mortgage, deed of trust, orsimilar encumbrances as security for indebtedness.  For purposes hereof, transfer, assign orconvey shall not include any reorganization which simply results in a change inthe state of incorporation and Micron continues to hold the Land and Building,any recapitalization in which Micron continues to hold the Land and Building orany merger or change of control of Landlord.

 

13.2                     NoTenant Assignment.  Tenant shall nothave the right to transfer, assign or convey, in whole or in part, the Premiseor any or all of its rights under this Lease; provided, however,that such prohibition shall not apply to any transfer, assignment or conveyanceby Tenant to an Affiliate of Tenant.

 

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ARTICLE 14

DEFAULT

 

14.1                     Tenant’sDefault.  The occurrence of any ofthe following shall constitute a default (a “Default”)by Tenant under this Lease:  (i) Tenantis in default under the terms of the Manufacturing Services Agreement; (ii)Tenant effects or attempts to effect a Transfer without Landlord’s consent;(iii) Tenant fails to perform any other provision of this Lease and suchfailure is not cured within thirty (30) days after written notice thereof isgiven to Tenant (or immediately if the failure involves a hazardous ordangerous condition), provided that in the event such matter does not involve ahazardous or dangerous condition and cannot be reasonably cured within suchthirty (30) day period despite Tenant’s diligent efforts then Tenant shall bepermitted such reasonable time as reasonably required to cure such default,provided that Tenant has commenced such cure within the thirty (30) day periodand diligently prosecutes such cure to completion; (iv) the leasehold interestof Tenant is levied upon or attached under process of law; or (v) any voluntaryor involuntary proceedings are filed by or against Tenant under any bankruptcy,insolvency or similar laws and, in the case of any involuntary proceedings, arenot dismissed within sixty (60) days after filing.

 

14.2                     Landlord’sRemedies.  In the event of a TenantDefault and Tenant fails to cure such Default within a commercially reasonableperiod of time after receipt of written notice from Landlord, Landlord shallhave the right to cure such Default and thereafter be reimbursed by Tenantwithin thirty (30) days after receipt of an invoice together with appropriatebackup documentation.  In the event aTenant Default cannot be reasonably cured by Landlord and such Defaultmaterially adversely affects the Premises or the Building (a “Tenant MaterialDefault”), Tenant agrees that Landlord shall be entitled to obtain specificperformance and any other equitable remedy available by law.  Notwithstanding any Tenant Default or TenantMaterial Default, Landlord shall not be entitled to terminate this Lease exceptas provided in Section 2.1(i), (ii), (iii) or (iv) above.

 

14.3                     Landlord’sDefault and Tenant’s Remedies.  Inthe event that Landlord defaults under any provisions of this Lease and failsto cure such default within a commercially reasonable period of time afterreceipt of written notice from Tenant, in addition to any and all remedies thatTenant may have at law or equity, including without limitation specificperformance, Tenant shall have the right to cure such default and thereafter bereimbursed by Landlord within thirty (30) days after receipt of an invoicetogether with appropriate backup documentation. In the event of a Landlord Event of Default (as defined in Section 13.2of the Operating Agreement), Tenant shall also have the rights and remediesspecified in Article 13 of the Operating Agreement.

 

14.4                     NoOther Remedies.  The remedies of eachparty shall only be as provided in Section 14.2 and 14.3 hereof and neitherparty shall be entitled to any other right or remedy otherwise available tosuch party.

 

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ARTICLE 15

NOTICES

 

Any notice,summons or other process of notification to be served under the Lease or inconnection with any proceeding or action arising out of this Lease or thetenancy created thereby shall be provided to the addresses and in the manner asset forth in the Manufacturing Services Agreement.

 

ARTICLE 16

REAL ESTATE BROKERS

 

Tenant warrants and represents to Landlord thatno commission, fee or other compensation is or will become due and payable toany real estate broker, salesman, consultant, finder or agent it has hired as aresult of the creation of this Lease or any transaction described in thisLease.  Landlord warrants and representsto Tenant that no commission, fee or other compensation is or will become dueand payable to any real estate broker, salesman, consultant, finder or agent ithas hired as a result of the creation of this Lease or any transaction describedin this Lease.

 

ARTICLE 17

NO WAIVER

 

No waiver of any condition or covenant ofthis Lease or of the breach of any such covenant or condition shall be deemedto constitute a waiver of any subsequent breach of such covenant or conditionor to justify the non-observance on any other occasion of the same or of anyother covenant or condition hereof.

 

ARTICLE 18

ESTOPPEL CERTIFICATES

 

Tenant agrees that, from time to time uponnot less than twenty (20) days’ prior request by Landlord, Tenant shall executeand deliver to Landlord a written certificate certifying:  (i) that this Lease is unmodified and in fullforce and effect (or if there have been modifications, a description of suchmodifications and that this Lease as modified is in full force and effect);(ii) whether Tenant is in possession of the Premises, if that is the case;(iii) that to Tenant’s knowledge Landlord is not in default under this Lease,or, if Tenant believes Landlord is in default, the nature thereof in detail;(iv) that to Tenant’s knowledge Tenant is not in default under this Lease; (v)that Landlord is not obligated to perform any tenant improvement work in thePremises, (vi) that to Tenant’s knowledge Tenant has no off-sets or defenses tothe performance of its obligations under this Lease (or if Tenant believesthere are any off-sets or defenses, a full and complete explanation thereof);and (vii) such additional matters as may be reasonably requested by Landlord,it being agreed that such certificate may be relied upon by any prospectivepurchaser, mortgagee or other person having or acquiring an interest in theBuilding, the Premises, or any portion thereof.

 

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ARTICLE 19

SUBORDINATION

 

This Lease is and shall be expressly subjectand subordinate at all times to the lien of any present or future mortgage ordeed of trust encumbering fee title to the Land or the Building. The foregoingprovision is declared to be self-operative and no further instruments shall berequired to effect such subordination and/or attornment; provided, however,that Tenant agrees upon request by any such mortgagee, beneficiary, lessor orpurchaser at foreclosure or transfer, as the case may be, to execute suchreasonable subordination and/or attornment instruments as may be required bysuch person to confirm such subordination and/or attornment on the reasonableform customarily used by such party. Notwithstanding anything to the contrary contained herein, Tenant’sagreement to subordinate this Lease shall not be effective unless and until themortgagee, beneficiary or lessor, as the case may be, shall execute and deliverto Tenant a commercially reasonable non-disturbance agreement providing, amongother things, that if any mortgage is foreclosed (or if the Land or theBuilding is transferred in lieu of foreclosure), such mortgagee or purchasershall agree to accept this Lease and not disturb Tenant’s occupancy (so long asTenant is not in default hereunder beyond all applicable notice and cureperiods).

 

ARTICLE 20

SURRENDER; [***]; ACQUISITION

 

20.1                     Surrender.  Upon termination of the Term for any reason,(i) Tenant shall return the Premises to Landlord broom clean, in good order andcondition, ordinary wear and tear excepted, in compliance with all ApplicableLaws; provided, however, that Tenant shall not be responsible to remove anyresidue or other materials within pipes, ducts, utilities and treatmentfacilities within the Building.  In theevent that Landlord does not exercise the Micron [***] Purchase Option (asdefined in the Operating Agreement) to purchase [***] owned by Tenant, Tenantand its members shall, subject to Section 20.2 below, have the right for aperiod of up to sixty (60) days after the expiration of the Micron [***]Purchase Option, to remove all or any portion of [***].  Tenant shall not be obligated to [***] at theend of the Term.

 

20.2                     Repair.  In the event that Tenant shall damage theBuilding in connection with the removal of any Associated Assets owned byTenant, Tenant shall, at its expense, repair such damage to return the Buildingto its former condition, reasonable wear and tear excepted.

 

ARTICLE 21

APPLICABLE LAW AND CONSTRUCTION

 

21.1                     GoverningLaw.  This Lease shall be governed bythe laws of the State of Delaware as to all matters other than those matterspertaining to real property which are customarily governed by the laws of theState where the Premises is located.

 

21.2                     IndependentProvisions.  Any provision of thisLease which is contrary to a law, which the parties cannot legally waive orcontract against (such, for example, as labor laws and anti-trust laws) is andshall be void and not binding on either party hereto; provided,

 

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however, that the invalidity or unenforceabilityof any provision of this Lease shall not affect or impair any other provisionof this Lease.

 

ARTICLE 22

QUIET ENJOYMENT

 

Landlord hereby covenants and agrees that ifTenant shall perform all of the covenants and agreements herein stipulated to beperformed on Tenant’s part, Tenant shall at all times during the continuancehereof have peaceable and quiet enjoyment and possession of the Premiseswithout hindrance from Landlord or any person or persons lawfully claiming thePremises.

 

ARTICLE 23

SUCCESSORS AND ASSIGNS

 

The terms, conditions and agreements of thisLease and all rights and obligations herein given to or imposed upon theparties hereto shall bind and inure to the benefit of the respective heirs,executors, administrators, successors and permitted assigns of the partieshereto.  No rights, however, shall inureto the benefit of any assignee of a Party unless the assignment to suchassignee has been approved (if required) by the other Party.

 

ARTICLE 24

MISCELLANEOUS

 

24.1                     Executionand Delivery.  Submission of thisinstrument for examination or signature by Tenant does not constitute areservation of space or an option for lease, and it is not effective untilexecution and delivery by both Landlord and Tenant.

 

24.2                     Memorandumof Lease.  This Lease shall not berecorded, either independently or as an exhibit, schedule, annex, or addendumto any other document.  However, aMemorandum of Lease, in substantially the form attached hereto as Exhibit D,shall be executed, acknowledged and delivered for recording by bothparties.  The cost of such recordingshall be divided equally between the parties.

 

24.3                     Captions.  The headings and titles in this Lease are forconvenience only and shall have no effect upon the construction orinterpretation of this Lease.

 

24.4                     Jurisdiction;Venue.  Any suit, action orproceeding seeking to enforce any provision of, or based on any matter arisingout of or in connection with, this Lease shall be brought in a state or federalcourt located in Delaware and each of the parties to this Lease hereby consentsand submits to the exclusive jurisdiction of such courts (and of theappropriate appellate courts therefrom) in any such suit, action or proceedingand irrevocably waives, to the fullest extent permitted by applicable Laws, anyobjection which it may now or hereafter have to the laying of the venue of anysuch suit, action or proceeding in any such court or that any such suit, actionor proceeding which is brought in any such court has been brought in aninconvenient forum.  Process in any suchsuit, action or proceeding may be served on any party anywhere in the world,whether within or without the jurisdiction of any such court.

 

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24.5                     DueAuthority.  The individuals executingthis Lease represent and warrant to each party that they have full right, powerand authority to execute this Lease on behalf of such party.

 

24.6                     OnlyLandlord/Tenant Relationship. Nothing contained herein shall be deemed or construed by theparties hereto nor by any third party, as creating the relationship ofprincipal and agent or of partnership or of joint venture between the partieshereto or any other relationship, other than the relationship of Landlord andTenant.

 

24.7                     Counterparts.  This Lease may be executed in one or morecounterparts, each of which shall be deemed an original, but all of whichtogether shall constitute one and the same instrument.

 

24.8                     Construction.  Any reference to any Applicable Law shall bedeemed also to refer to all rules and regulations promulgated thereunder unlessthe context requires otherwise.  Wheneverrequired by the context, any gender shall include any other gender, thesingular shall include the plural and the plural shall include thesingular.  The words “herein,” “hereof,” “hereunder,”and words of similar import refer to this Lease as a whole and not to aparticular section.  Whenever the word “including”is used in this Lease, it shall be deemed to mean “including withoutlimitation,” “including, but not limited to” or other words of similar importsuch that the items following the word “including” shall be deemed to be a listby way of illustration only and shall not be deemed to be an exhaustive list ofapplicable items in the context thereof. References to Sections and Exhibits in this Lease are references toSections of, and Exhibits to, this Lease unless otherwise indicated.

 

24.9                     EntireAgreement.  This Lease, the MasterAgreement, the Manufacturing Services Agreement, and the Operating Agreementsets forth all of the covenants, promises, agreements, conditions, andunderstandings of the parties hereto with respect to the Premises.  No alteration, modification, amendment,change or addition to this Lease shall be effective unless the same shall bereduced to writing and signed by both parties hereto.

 

24.10                   Timeis of the Essence.  Time is of theessence in the performance of all terms and conditions of this Lease in whichtime is an element.

 

24.11                   Confidentiality.  Landlordand Tenant shall abide by the terms of that certain Mutual ConfidentialityAgreement among Landlord, Tenant and Intel dated as of the Effective Date ofthe Operating Agreement, and as may be amended or replaced from time to time(the “Confidentiality Agreement”), which agreementis incorporated herein by reference. Landlord and Tenant agree that the Confidentiality Agreement shallgovern the confidentiality, non-disclosure and non-use obligations between theparties respecting the information provided or disclosed pursuant to thisLease.  If the Confidentiality Agreementis terminated or expires and is not replaced, such Confidentiality Agreementshall continue with respect to confidential information provided in connectionwith this Lease, notwithstanding such expiration or termination, for theduration of the Term of this Lease or until a new Confidentiality Agreement isentered into between the Landlord and Tenant. To the extent there is a conflict between this Lease and the ConfidentialityAgreement, the terms of this Lease shall control.  This Lease and its terms shall be deemed “ConfidentialInformation” under the Confidentiality Agreement.

 

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24.12                   DamagesLimitation.  EXCEPT AS PROVIDEDBELOW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANYSPECIAL, CONSEQUENTIAL, INCIDENTAL OR OTHER INDIRECT DAMAGES OR ANY PUNITIVE OREXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHERSUCH DAMAGES ARE BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OROTHER THEORY OF LIABILITY, AND EVEN IF A PARTY HAS BEEN ADVISED OF THEPOSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, SUCH LIMITATION SHALL NOT APPLY TO EITHERPARTY’S BREACH OF SECTION 24.11.  EACHPARTY SHALL HAVE A DUTY TO USE COMMERCIALLY REASONABLE EFFORTS TO MITIGATEDAMAGES FOR WHICH THE OTHER PARTY IS RESPONSIBLE.

 

24.13                   IndemnificationProcedures.

 

(a)           If any person who or which is entitled to seekindemnification under this Lease (an “Indemnified Party”)obtains knowledge of, or receives notice of, any Claim against the personagainst whom or which such indemnification is being sought hereunder (an “Indemnifying Party”), the Indemnified Party will give suchIndemnifying Party reasonably prompt written notice thereof, but in any eventnot later than ten (10) days after knowledge or notice of such Claim.  Such notice by the Indemnified Party willdescribe the Claim in reasonable detail, will include copies of all availablematerial written evidence thereof and will indicate the estimated amount, ifreasonably practicable, of the damages that have been or may be sustained bythe Indemnified Party.  The IndemnifyingParty will have the right to participate in, or, by giving written notice tothe Indemnified Party, to assume, the defense of any Claim at such IndemnifyingParty’s own expense and by such Indemnifying Party’s own counsel (reasonablysatisfactory to the Indemnified Party), and the Indemnified Party willcooperate in good faith in such defense.

 

(b)           If,within ten (10) days after giving notice of a Claim to an Indemnifying Partypursuant to Section 24.13(a), an Indemnified Party receives written noticefrom the Indemnifying Party that the Indemnifying Party has elected to assumethe defense of such Claim as provided in the last sentence ofSection 24.13(a), the Indemnifying Party will not be liable for any legalexpenses subsequently incurred by the Indemnified Party in connection with thedefense thereof; provided, however, that if the Indemnifying Party fails totake reasonable steps necessary to defend diligently such Claim withinten (10) days after receiving written notice from the Indemnified Partythat the Indemnified Party believes the Indemnifying Party has failed to takesuch steps or if the Indemnifying Party has not undertaken fully to indemnifythe Indemnified Party in respect of all damages relating to the matter, theIndemnified Party may assume its own defense, and the Indemnifying Party willbe liable for all reasonable costs and expenses paid or incurred in connectiontherewith and the Indemnified Party may employ separate counsel, and theIndemnifying Party will bear the expenses of such separate counsel, if in thewritten opinion of counsel to the Indemnified Party use of counsel of the IndemnifyingParty’s choice would be expected to give rise to a conflict of interest.  Without the prior written consent of theIndemnified Party, the Indemnifying Party will not enter into any settlement ofany Claim that would lead to loss, liability or create any financial or otherobligation on the part of any Indemnified Party for which such IndemnifiedParty is not entitled to indemnification

 

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hereunder, or which provides for injunctiveor other non-monetary relief applicable to any Indemnified Party, or does notinclude an unconditional release of all Indemnified Parties.

 

(c)           A failure to give timely notice or to include anyspecified information in any notice as provided in Sections 24.13(a) or(b) will not affect the rights or obligations of any party hereunder, exceptand only to the extent that, as a result of such failure, any party that wasentitled to receive such notice was materially prejudiced as a result of suchfailure

 

(d)           Notwithstanding anything to the contrary containedherein, Landlord and Tenant agree that, for the purposes of this section, in noevent shall the actions or omissions of Landlord pursuant to the ManufacturingServices Agreement be deemed acts or omissions of Tenant.

 

24.14                   ForceMajeure.  The parties shall beexcused from any failure to perform any obligation hereunder to the extent suchfailure is caused by a Force Majeure Event. A Force Majeure Event shall operate to excuse a failure to perform anobligation hereunder only for the period of time during which the Force MajeureEvent renders performance impossible or infeasible and only if the partyasserting Force Majeure as an excuse for its failure to perform has providedwritten notice to the other party specifying the obligation to be excused anddescribing the events or conditions constituting the Force Majeure Event.  As used herein, “Force Majeure Event” meansthe occurrence of an event or circumstance beyond the reasonable control of theparty failing to perform, including, without limitation, (a) explosions, fires,flood, earthquakes, catastrophic weather conditions, or other elements ofnature or acts of God; (b) acts of war (declared or undeclared), acts ofterrorism, insurrection, riots, civil disorders, rebellion or sabotage; (c)acts of federal, state, local or foreign governmental authorities or courts;(d) labor disputes, lockouts, strikes or other industrial action, whetherdirect or indirect and whether lawful or unlawful; (e) failures or fluctuationsin electrical power or telecommunications service or equipment; and (f) delayscaused by the other party’s nonperformance hereunder.

 

Signature Page Follows

 

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IN WITNESS WHEREOF, the parties hereto have caused thisLease to be duly executed on the day and year first above written.

 

 

MICRON TECHNOLOGY, INC.

 

 

 

 

 

By:

/s/ STEVEN R. APPLETON

 

 

Name: Steven R. Appleton

 

Title: Chief Executive Officer and President

 

 

 

 

 

IM FLASH TECHNOLOGIES, LLC

 

 

 

 

 

By:

/s/ DAVID A. BAGLEE

 

 

Name: David A. Baglee

 

Title: Authorized Officer

 

 

 

By:

/s/ RODNEY MORGAN

 

 

Name: Rodney Morgan

 

Title: Authorized Officer

 

 

THIS IS THE SIGNATURE PAGE FOR THE MTV LEASEAGREEMENT

ENTERED INTO BY AND BETWEEN MICRONTECHNOLOGY, INC. AND

IM FLASH TECHNOLOGIES, LLC

 

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Exhibit A

 

Legal Description of Land

 

 

All of that certain lot, piece or parcel of land lying, being andsituate in the City of Manassas, Virginia, being more particularly described asfollows:

 

Parcel “B”, consisting of 123.5353 acres, more or less, a Subdivisionof the Property of International Business Machines Corporation, as the same isshown on a plat attached to the Deed of Subdivision recorded in Deed Book 2119at page 1774 among the land records of Prince William County, Virginia.

 

LESS AND EXCEPT the “overhead industrial waste discharge lines” andassociated fixtures attached thereto, as shown on the plat dated December 13,1995, made by Ross, France & Ratliff, Ltd. entitled “Composite Plat ShowingOverhead Industrial Waste Discharge Lines Parcel B”, a copy of which plat isattached to and recorded with a deed dated December 11, 1995 and recorded inDeed Book 2297 at page 1711, said plat recorded in Map Drawer 170 at page 121.

 

ALSO LESS AND EXCEPT 0.1190 acres, more or less, dedicated for publicuse for street purposes and conveyed to the City of Manassas by Deed ofDedication and Deed of Easement recorded in Deed Book 2333 at page 1035.

 

AND BEING a portion of the same property which was conveyed to DominionSemiconductor L.L.C., a Virginia limited liability company, by Special WarrantyDeed from Virginia LLC Holding, Inc., a Virginia corporation, dated February 5,1996 and recorded February 7, 1996 in Deed Book 2309 at page 1638 in the Clerk’sOffice of the Circuit Court of Prince William County, Virginia.

 

TOGETHER WITH those certain permanent, non-exclusive easements foringress and egress over and across Parcel A, which parcel is shown on platattached to Deed of Subdivision recorded in Deed Book 2119 at page 1774, asmore particularly set forth in Reciprocal Ingress and Egress Access Easementsand Agreement of Indemnification by Dominion recorded in the aforesaid Clerk’sOffice on December 26, 2001 as Instrument No. 200112260137848.

 

FURTHER TOGETHER WITH that certain permanent, non-exclusive domesticsanitary sewer easement and right-of-way thereto across said Parcel A, as moreparticularly set forth in Domestic Sanitary Sewer Easement recorded in theaforesaid Clerk’s Office on December 26, 2001 as Instrument No.200112260137840.

 

FURTHER TOGETHER WITH that certain permanent, non-exclusive sixty-five(65) ft. wide easement and right-of-way for the transmission of domestic watersupply, fire system water supply and sanitary sewer flows by undergroundpipelines, and the transmission of industrial chemicals and utility services byoverhead trestle over said Parcel A, as more particularly set forth in Building130 Utility, Chemical Transmission and Access Easement and Agreement of

 

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Indemnification by Dominion recorded in the aforesaid Clerk’s Office onDecember 26, 2001 as Instrument No. 200112260137846.

 

FURTHER TOGETHER WITH that certain permanent, non-exclusive fireprotection water supply line and maintenance easement and right-of-way theretoacross said Parcel A as more particularly set forth in Fire Protection WaterSupply Line and Maintenance Easement recorded in the aforesaid Clerk’s Officeon December 26, 2001 as Instrument No. 200112260137852.

 

FURTHER TOGETHER WITH that certain permanent, non-exclusive easementfor ingress and egress to and from the public road, i.e., Godwin Drive(Virginia State Route 661) over and across said Parcel A as more particularlyset forth in Ingress and Egress Access Easement recorded in the aforesaid Clerk’sOffice on December 26, 2001 as Instrument No. 200112260137856.

 

BEING the same property conveyed to Micron Technology, Inc., a Delawarecorporation, by Special Warranty Deed from Dominion Semiconductor L.L.C., aVirginia limited liability company, dated April 22, 2002 and recorded April 22,2002 among the land records of Prince William County, Virginia as InstrumentNo. 200204220051249, recorded April 26, 2002 as Instrument No. 200204260053995.

 

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Exhibit B

 

Depiction of the Premises

 

[Picture Showing Premises]

 

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Exhibit C

 

Scope of Work

 

SCOPE

 

Estimated
Start

 

Estimated
Finish

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

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[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

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[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

 

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Exhibit D

 

Memorandum of Lease

 

When recorded, return to:

Jones Waldo Holbrook & McDonough, P.C.

170 S. Main Street, Suite 1500

Salt Lake City, Utah  84101-1622

Attn:  Glen D. Watkins

 

 

Space above for recorder’s use

 

DEED OF LEASE

 

This Deed ofLease is dated as of January 6, 2006, by and between IM Flash Technologies,LLC, a Delaware limited liability company with an address at 1550 East 3400North, Lehi, Utah 84043 (“Tenant”) and Micron Technology, Inc., a Delawarecorporation with an address at 8000 S. Federal Way, Mail Stop 1-507, Boise,ID  83716 (“Landlord”).

 

1.   Forand in consideration of Ten Dollars ($10.00) and other good and valuableconsideration paid and exchanged between Landlord and Tenant, Landlord hasleased to Tenant and Tenant has leased from Landlord, a designated portion (asshown on Exhibit A) of a certain building located at 9600 Godwin Drive,Manassas, Virginia, 20110 (the “Building”), on property more particularlydescribed on Exhibit B attached hereto (the “Land”), pursuant to acertain MTV Lease Agreement dated as of even date herewith between Landlord andTenant (the “Lease”).  Under the Leaseand in accordance with its terms, Tenant has the nonexclusive right to use theCommon Areas (as defined therein) that are located within the Building and onthe Land.

 

2.   Theterm of the Lease commenced on the date hereof and expires, unless soonerterminated as set forth in the Lease, on the tenth anniversary of the datehereof; provided, however, that the term shall automaticallyextend for a period coterminous with any Renewal Term as defined in thatcertain Operating Agreement dated January 6, 2006 between Micron and Intel (the“Term”).

 

3.   Landlordand Tenant execute this Deed of Lease for purposes of recordation and notice ofthe Lease and do not intend to change any provision of the Lease.

 

NOTE TORECORDER:  THIS INSTRUMENT IS EXEMPTFROM THE STATE OF VIRGINIA RECORDATION TAX (AS IMPOSED BY § 58.1-801 OFTHE VIRGINIA CODE) PURSUANT TO § 58.1-811A(10) OF THE VIRGINIA CODE SINCETHIS INSTRUMENT EVIDENCES A CONVEYANCE TO A LIMITED LIABILITY COMPANY WHERE THE

 

22



 

GRANTOR(LANDLORD) IS ENTITLED TO RECEIVE NOT LESS THAN 50% OF THE PROFITS AND SURPLUSOF SUCH LIMITED LIABILITY COMPANY.

 

 

IN WITNESSWHEREOF, Landlord and Tenant have executed this Deed of Lease as of the datefirst above written.

 

 

Micron Technology, Inc.

 

 

 

By:

 

 

 

Name:

 

 

 

Title:

 

 

 

 

 

IM Flash Technologies, LLC

 

 

 

By:

 

 

 

Name:

 

 

 

Title:

 

 

 

STATE OF

)

 

) SS.

COUNTY OF

)

 

Acknowledgedbefore me a Notary Public in and for the aforementioned County and State this      day of January, 2006 by                                the                                of Micron Technology, Inc., a Delaware corporation, on behalf of suchcorporation.

 

 

 

Notary Public

 

STATE OF

)

 

) SS.

COUNTY OF

)

 

Acknowledgedbefore me a Notary Public in and for the aforementioned County and State this      day of January, 2006 by                                the                                of IM Flash Technologies, LLC, a Delaware limited liability company, on behalfof such company.

 

 

Notary Public

 

23