EXHIBIT A

GROUND LEASE

THIS GROUND LEASE AGREEMENT (this ??Lease?), dated as of December 14,
2012, between 1743 HOLDINGS, LLC, a Delaware limited liability company (?Landlord?),
having an address at c/o Office of General Counsel, University of Delaware, 124 Hullihen Hall,
Newark, Delaware 19716, and The Data Centers, LLC, a Delaware limited liability company, or
its assigns, (?Tenant?) having an address at 1554 Paoli Pike, Suite 325, West Chester,
19380.

WHEREAS, Landlord is the owner of certain property located in the City of Newark,
Delaware consisting of approximately 271 acres (the ?Campus?) which it owns and manages in
order to serve the purposes of Landlord?s parent, the University of Delaware (?University?). The
Campus was acquired by Landlord to expand the University?s overall campus and provide a site
for, among other things, high technology/medical/educational partnerships between the
University and leaders in various technology/medical/educational fields; and

WHEREAS, Tenant is a Delaware limited liability company that is in the business of
developing, constructing, owning and managing data centers and related power plants; and

WHEREAS, Landlord and the University have partnered in order to attract Tenant to the
Campus, thus creating the opportunity for collaboration between Tenant and the University; and

WHEREAS, the hereinafter described Premises lie within the Campus. Landlord and
Tenant believe that the Premises will provide an ideal site for the development by Tenant of a
facility to be Operated by Tenant as a data center, power plant facility, operational office and
maintenance facilities, electronic equipment warehousing, communications hotel and other
related or attendant uses deemed necessary by Tenant consistent with Tenant?s business
operations as a data center provider and with a science and technology campus (the ?Permitted
Uses?); and

WHEREAS, Landlord and Tenant have agreed that Tenant shall lease the Premises from
Landlord; 

NOW, THEREFORE, in consideration of the premises and the mutual covenants herein
set forth, Landlord and Tenant hereby agree as follows: .

Lease of Premises: Title and Condition

In consideration of the rents and covenants herein stipulated to be paid and
performed by Tenant and upon the terms and conditions hereinafter speci?ed, Landlord
hereby leases to Tenant, and Tenant hereby leases from Landlord, the unimproved land
initially consisting of approximately forty-three (43) acres as described in Exhibit A,
being part of tax parcel #18-039.00-002, together with all the rights, easements,
privileges and appurtenances thereunto belonging, including any and all air and
development rights (the ?Premises?).

1.2 Except as provided in Section 6.7, the Premises are leased to Tenant ?As-
Is,? and in their present condition without representation or warranty by Landlord and

5]?533 32114le

subject to the existing state of title, all existing covenants, restrictions, easements, 
agreements and regulations of record, if any, any state of facts an accurate survey might
show, zoning rules, restrictions, regulations, resolutions, ordinances, building restrictions
and governmental regulations now in effect or hereafter adopted by any governmental
authority having jurisdiction over the Premises. Tenant expressly acknowledges and
agrees that Tenant is not relying on any representation or warranty of Landlord, or any of
its trustees, directors, of?cers, members, partners, agents or employees, whether implied,
presumed or expressly provided at law or otherwise, arising by virtue of any statute,
common law or other legally binding right or remedy in favor of Tenant. Tenant does not
waive its rights, if any, to recover from, and does not release or discharge or covenant not
to sue Landlord for, any breach of Landlord's obligations set forth in this Lease or the
Environmental Indemnity and Release Agreement of even date herewith.

1.3 Except as otherwise may be provided by amendment to this Lease or in
other instruments to which Landlord and Tenant are signatories, all buildings and other
improvements, including utilities, roads, driveways, walkways, landscaping amenities,
?xtures, equipment and property attached or affixed to the Premises, hereafter
constructed or placed upon the Premises pursuant to Article 9 (the ?Improvements?) are
not the subject of this Lease, and except as otherwise provided herein Landlord shall not
acquire pursuant to this Lease any right, title or interest therein or thereto, nor in any
additions, alterations,restorations or repairs to or replacements of any of the foregoing;
all of which shall be the sole property of Tenant during the Term of this Lease.

1.4 Tenant?s lease of the Premises pursuant to this Lease shall include the
right, together with all of the occupants of the Campus and their respective employees
and invitees, to use all roads within the Campus as and when constructed for the purpose
of access to and from the Premises. In consideration therefor, Tenant shall be responsible
for its proportionate share (?Tenant?s Share?), as reasonably determined by Landlord, of
the cost of maintaining and repairing the Common Areas and Facilities. For the
avoidance of doubt, Tenant is not responsible for Landlord?s costs in initially
constructing and installing the Common Areas and Facilities. Tenant shall reimburse
Landlord for its proportionate share of such costs from time to time within thirty (30)
days following receipt of Landlord?s invoice for the same. Tenant acknowledges that
Landlord shall have the right to relocate or otherwise alter any such curb cuts and roads at
any time in its reasonable discretion. Tenant?s Share of the Tenant?s Common Areas is
15.87%. In addition, in the event the truck access road (?Road is constructed
adjacent or proximate to the westerly boundary line of the acre parcel of land
leased by Bloom Energy Corporation (the ?Bloom Parcel?) and the same is available for
service to the Premises, Tenant shall pay one-third of the construction costs for said
road, and (ii) in the event the access road is constructed adjacent or proximate to the
northerly boundary line of the Bloom Parcel and the same is available for service to the
Premises, Tenant shall pay one-half (V2) of the construction costs for said road for the
portion from the entrance to the Bloom Parcel to the intersection with Road Payment
shall be due and owing within thirty (30) days of presentation of an invoice therefor,
together with reasonable ?back-up? documentation supporting said invoice. Should
Tenant?s contractors complete the construction of said roadways at Tenant?s cest, then
the Landlord will make payment of its share of said costs within thirty (30) days of

GNISJI 

presentation of an invoice therefor, together with reasonable ?back-up? documentation
supporting said invoice.

1.5 Tenant acknowledges that the Premises is among the first portions
of the Campus which will be redeveloped and that Landlord?s plans for the balance of the
Cattlpus have not yet been fully established. In connection with the redevelopment of the
Carnpus, it is anticipated that some or all of the Campus will be subjected to a declaration
of easement, covenants and restrictions to provide a ?'amework for its future
development, operation and maintenance (the ?Declaration?). Landlord shall prepare and
Tenant shall cooperate in good faith in connection with the preparation and recording of
the Declaration, and Tenant agrees that its rights and obligations hereunder will be
subject and subordinate to the provisions of the Declaration, Without the requirement for
any ?thher action by Tenant, following the execution and recording of the Declaration,
once approved by Tenant. The Declaration shall include, at Landlord?s option,
commercially reasonable provisions to enhance a ?rst class science and technology?
campus, including, without limitation, cost sharing for common improvements approved
by Campus tenants (excluding any costs associated with Landlord?s environmental
investigations or remediation activities), maintenance and repair obligations, architectural
review and controls, cross?easements, prohibited acts, lighting standards, landscaping
standards and shared utilities, with the implicit understanding that certain Tenant speci?c
utilities and easements cannot be shared due to the critical and secure nature of the
Tenant?s facility. Notwithstanding the foregoing, the terms of the Declaration shall be
subject to the prior approval of Tenant, which approval shall not be Unreasonany

- withheld, delayed or conditioned provided that nothing in the Declaration shall materially
and adversely affect Tenant?s rights under this Lease or impoSe material costs on Tenant
except for Tenant?s Share of common expenses for the Campus as hereinelsewhere

provided. 

The parties agree that Tenant?s use of the Premises shall be limited by the
following standards and conditions as to the amount of noise that shall be permitted to
emanate from the Premises:

. Tenant shall design, construct and operate its facilities in a manner so as
not to create or cause an environmental noise nuiSance to the surrounding
communities and to adjacent Campus operations, tenants and guests.
Tenant shall maintain compliance at all times with the standards of the
City of Newark Code and Delaware Municipal Code, Chapter 20A 
Noise. Prohibited noise levels established by the City of Newark Noise
Ordinance cannot be exceeded beyond the adjacent boundary lines of the
Campus. The Tenant shall have a pre-construction'ambient noise level
study completed to establish existing conditions at the Premises, nearest
actual sensitive receptor and at the Campus boundaries. The design and -
scope of the ambient noise survey shall be developed in cooperation with
the City of Newark, University of Delaware and 1743 Holdings, LLC.
The results of the study shall also be shared with the foregoing respective
parties. The Tenant will conduct subsequent noise surveys when its
facility initially begins operation and each time a new generator is added



to Tenant?s facility and supply the results thereof to Landlord to con?rm
that its operations are not having a negative noise impact to the
surrounding area and/or violating the foregoing requirements.

1.6 Common Areas and Facilities.

Common Areas and Facilities shall mean all common areas and facilities
located on the Campus as constructed by Landlord from time to time at Landlord?s
expense and reasonably available for the joint use or bene?t by Tenant along with other
occupants of the Campus and their respective employees and invitees. Common Areas
and Facilities shall include, without limitation, any and all roads, sidewalks, walkways,
curbs, entrances, exits, light facilities, utility lines (other than those dedicated to one
occupant of the Campus), landscaped areas, equipment, signs and facilities, now existing
and from time to time hereafter furnished by Landlord in, on or upon the Campus.

Tenant and Tenant?s Agents shall have the non-exclusive right of access
to, egress from, and use of all Common Areas and Facilities, which shall be available to
Tenant and Tenant?s Agents Seven (7) days a week, twenty four (24) hours a day.
Landlord hereby grants to Tenant and Tenant?s Agents, during the Term of this Lease, the
use of all easements, rights and privileges appurtenant to the Premises t0gether with the
nonexclusive right to use all curb cuts, driveways, roads, alleys, and means of ingress and
egress to the Premises and located on the Campus and all streets and highways abutting
and adjacent to the Premises and Campus for the purposes of pedestrian, service and
vehicular access, ingress and egress to, from and between the Premises, the Campus and
the streets and highways abutting and adjacent to the Premises and Campus without
payment of any fee or other charge therefor (except as otherwise provided herein in
connection with'Tenant?s payment of Tenant?s Share for the maintenance and repair of
the Common Areas and easements shall run as covenants with the
Premises. 

As the same are constructed and completed, Landlord agrees to keep (or
cause to be kept) the Common Areas and Facilities in good maintenance and repair.
Tenant shall pay Tenant?s Share of the cost of maintaining and repairing the Common
Areas and Facilities pursuant to any Declaration approved by Tenant in accordance with
the provisions of this Lease, or, if such Declaration has not been imposed by Landlord,
Tenant at all times shall be responsible to reimburse Landlord for Tenant?s Share of the
actual costs without any ?mark-up? for maintenance and repair of the Common Areas and
Facilities. Invoices for such Tenant?s Share shall be accompanied by reasonable
documentation and shall be due within thirty (30) days of receipt. Landlord may invoice
quarterly or annually, as it elects.

2. Term; Due Diligence Period, Delivery Requirements

The Premises are leased unto Tenant for an initial term of seventy-?ve
(75) years beginning on the Delivery Date (the ?Commencement Date?) and expiring at
midnight on the day of the month numerically corresponding to the day preceding the 
Commencement Date in the year 2087, unless sooner terminated as hereinafter provided

6i4 518 

(such term, as may be shortened by any earlier termination, being hereinafter referred to
as the ?Initial Term?). 

2.2 in addition to the Initial Term, so long as Tenant is not in default in the
_-observance and performance by Tenant of the terms, conditions and covenants of this
Lease, at Tenant's option, Landlord agrees to lease the Premises to Tenant for four (4)
consecutive additional terms of ?ve (5) years each, each such additional term to
commence simultaneously with the expiration of the then existing Term. Tenant may
exercise its options to extend the Term of this Lease as provided in this Section 2.2 by
giving written notice thereof to Landlord not less than six (6) months prior to expiration
of the then existing Term (as hereinafter de?ned); which may be exercised collectively
for all four (4) Options or individually er in any 'serial combination as determined in
Tenant?s sole discretion. The additional terms provided in this Section 2.2, as the same
may be shortened by any earlier termination, are referred to hereina?er collectively as the
?Extension Terms.? The initial Term and the Extension Terms, to the extent that Tenant
effectively exercises its option(s) as set forth in this Section 2.2 and as the same may be
shortened by any earlier termination, are referred to hereinafter collectively as the
?Term.? 

2.3 Tenant shall have until six (6) the date of this Lease (the
?Due Diligence Period?) to investigate the Premises and to satisfy itself with respect to
the condition of the Premises and the feasibility of leasing the Premises and obtaining
permits and approvals for Tenant?s intended project on the Premises. Tenant shall have
the right to enter upon and investigate any and all aspects of the Premises it deems
appropriate and Landlord agrees to reasonably cooperate with Tenant in Tenant?s review
and inspection of the Premises. During the Due DiligenCe Period, Landlord will provide
Tenant and Tenant?s agents with access to the Premises for the purposes of conducting
any and all testing, sampling and investigation that Tenant-deems with
respect to the Premises and shall provide Tenant with copies of pertinent title, survey,
environmental, geotechnical and other documents in Landlord?s possession or control,
without representation or warranty by Landlord. Tenant hereby indemni?es and holds
the Landlord harmless from any loss, cost or expense, including, but not limited to,
attomeys? fees and costs incurred by the Landlord as a result of the actions of Tenant or
any of Tenant?s agents who enter upon the Premises during the Due Diligence Period.
Tenant shail make prompt reasonable repair of all damages caused by Tenant?s
inspections. Tenant may terminate this Lease prior to the expiration of the Due Diligence
Period for any reason or for no reason in which case this Lease shall be terminated, the
parties hereto shall be relieved of all liabilities and obligations under this Lease except
these which speci?cally survive termination. If this Lease is not terminated under this
Section 2.3, then, notwithstanding the expiration of the Due Diligence Period, Tenant
may continue to investigate the condition of the Premises through the Commencement
Date subject to the same terms and conditions on which Tenant Was permitted to
investigate the Premises during the Due Diligence Period. Prior to entering onto the
Premises, Tenant shall have satis?ed the insurance requirements of Section 12 hereof and
provided Landlord evidence thereof.



2.4 ?Delivery Date? De?ned: The day upon which Landlord delivers
possession of the Premises to Tenant with Landlord?s Remediation complete, and 
vacant and free and clear of all leases, subleases, tenancies and rights of occupants; (ii)
free and clear of all above and underground tanks and lifts; and in accordance with the
Brown?elds Agreement (as hereafter de?ned) as evidenced by a receipt from DNREC of
a Certi?cate of Completion of Remedies pursuant to the Brown?elds
Agreement.

3. I Rent

3.1 During the Initial and Extension Terms of this Lease, Tenant covenants
and agrees to pay to LandIOrd, in lawful money of the United States, at the offices of
Landlord designated in Article 23, Basic Rent, as hereinafter defined.

3.2 (I) During the first ?ve (5) years of the Initial Term, Tenant
shall pay to Landlord as Basic Rent $2.00 per annum per Gross Building Square
Foot of the Tenant?s Improvements. As used herein, ?Gross Building Square
Foot? shall mean the square footage of all buildings on the Premises as the same
may be from time to time. For the avoidance of doubt, all ?under roof" areas of
the Improvements shall be counted as Gross Building Square Feet. For the
purposes of this Article 3, during the ?rst five (5) years of the Initial Term, Gross
Building Square Foot of the Tenant?s Improvements shall mean the Gross
Building Square Feet of the constructed Improvements as the same may be from
time to time. Commencing with year six (6) of the Initial Term, and thereafter for
future years 'of this Lease, Gross Building Square Foot of the Tenant?s
Improvements shall mean the greater of the Gross Building Square Feet of the
actually constructed Improvements, or (ii) 500,000 Gross Building Square Feet.
For the avoidance of doubt, by way of example, if, in year eight (8) of the Term,
Tenant has constructed 300,000 Gross Building Square Feet of Improvements,
Basic Rent shall be calculated on the basis of 500,000 Gross Building Square
Feet

During the sixth (6th) through tenth (10m) lease years of the Term,
and on each Fifth Year Anniversary Date thereafter, the Basic Rent shall be
increased by ?fteen percent over the Basic Rent in effect for the
immediately prior ?ve (5) year period. For the avoidance of doubt, commencing
on the sixth (6th) lease year and continuing through the tenth (10m) lease year,
Basic Rent shall be $2.30 per Gross Building Square Foot of the Tenant?s
Improvements as aforesaid, and commencing on the eleventh (I lease year and
continuing through the ?fteenth (15m) lease year, Basic Rent shall be $2.65 per
Gross Building Square Foot of the Tenant?s Improvements as aforesaid.

3.3 The following terms, as used in this Section 3, shall have the meanings set
forth below: 

SNISJSIMGJII

 Five Year Anniversary Date means the ?rst day of each ?ve year
anniversary date commencing with the ?rst day of the sixth (t5t Lease Year, and
continuing on the ?rst date of each ?fth (5m) Lease Year thereafter.

3.4 On each Five Year Anniversary Date during the Term, beginning with the
sixth (6m) Lease Year (for the avoidance of doubt, the adjustments are to be made after
every ?ve years, such that Basic Rent is adjusted commencing on the 6m, 1 1m, 215?,
etc. Lease Years for the ensuing next ?ve years), Basic Rent shall be adjusted in the
manner set forth in this Section 3.

3.5 All payments of Basic Rent during any Term shall be made in equal
installments in advance on the first day of each calendar month during the Term.
The ?rst installment of Basic Rent shall be paid on the ?rst day that Tenant has
received a Certi?cate of Occupancy for its Improvements on the Premises or eighteen
(18) months from the issuance of the Building Permit, whichever occurs ?rst. If the ?rst
day of payment as aforesaid is a day other than the ?rst day of a calendar month, Tenant
shall pay Landlord, on such ?rst day, a pro rated portion of the installment of
Basic Rent for such partial month, based on the number of days remaining in such partial
month.

3.6 All amounts other than Basic Rent which Tenant is required to pay
pursuant to this Lease, together with every fine, penalty, interest and cost which may be
added for non-payment or late payment thereof expressly set forth herein, shall constitute
additional rent (?Additional Rent"). If Tenant shall fail to pay any Additional Rent when
the same shall become due after appropriate invoicing from Landlord, Landlord shall
have all rights, powers and remedies with respect thereto as are provided herein or by law
in the case of non-payment of Basic Rent and shall, except as expressly provided herein,
have the right to pay the same on behalf of Tenant. All payments of Basic Rent and
Additional Rent not timely paid by Tenant to Landlord within thirty (30) days after the
same was due and payable hereunder shall bear interest at a rate of the Prime Rate as set
forth from time to time in The Wall Street Journal plus ?ve percent per annum
(?Lease Interest Rate?)from the date(s) on which such payment(s) became due, until paid.
Tenant shall perform all of its obligations under this Lease at its sole cost and expense,
and shall pay all Basic Rent and Additional Rent when due, without notice or demand.

4. 

4.1 This Lease is a net lease and, any present or future law to the contrary
notwithstanding, shall not terminate except as provided herein, nor shall Tenant be
entitled to any abatement or reduction, set-off, defense or deduction with reSpect to any
Basic Rent or Additional Rent, nor shall the obligations of Tenant to pay Basic Rent or
Additional Rent hereunder be affected, by reason of any of the following, except in each
instance to the extent, if any, as shall be expressly set forth herein: any damage to or
destruction of the Premises or Improvements by any reason except to the extent caused
by Landlord?s negligence; any taking of the Premises or any part thereof by
condemnation or otherwise; any prohibition, limitation, restriction or prevention of
Tenant's use, occupancy or enjoyment of the Premises or Improvements, or any



interference with such use, occupancy or enjoyment by any person other than Landlord or
any person claiming under or through Landlord; any default by Landlord hereunder or
under any other agreement; the impossibility or illegality of performance by Landlord,

. Tenant or both; any action of any governmental authority; or any other cause whether
similar or dissimilar to the foregoing. The parties intend that the obligations of Tenant
hereunder shall be separate and independent covenants and agreements and shall continue
una?'ected unless such obligations shall have been modi?ed or terminated pursuant to an
express provision of this Lease.

4.2 Tenant shall remain obligated under this Lease in accordance with its
terms and shall not take any action to terminate, rescind or avoid this Lease,
notwithstanding any bankruptcy, insolvency, reorganization, liquidation, dissolution or
other proceeding affecting Tenant or any assignee of Tenant or any action with respect to
this Lease which may be taken by any trustee, receiver or liquidator or by any court.
Without limiting the generality of the foregoing, Tenant waives all rights to terminate or
surrender this Lease, or to any abatement or deferment of Basic Rent or Additional Rent,
except to the extent, if any, as shall be expressly set forth herein, on account of Tenant's
bankruptcy, insolvency, reorganization, liquidation, dissolution or other proceeding
affecting Tenant or any assignee of Tenant or any action with reSpect to this Lease which
may be taken by any trustee, receiver or liquidator or by any court.

5. . Expenses, Taxes and Other Obligations

5.l Tenant agrees that except as provided in Section 5.5 and Article 21 hereof,
it will pay to or on behalf of Landlord, as Additional Rent, punctually as and when the
same shall become due and payable, each and every cost and expense of every kind and
nature whatsoever, for the payment of which Landlord is, or shall or may be or become,
liable by reason of any right or interest of Landlord in the Premises or in or under this
Lease, or by reason of, or in any manner connected with, or arising out of, the
construction, operation, maintenance, alteration, repair, rebuilding, use or occupancy of
the Premises or Improvements now or hereafter located thereupon, or by any other reason
whether similar or dissimilar to the foregoing, foreseen or unforeseen, connected with or
arising out of the Premises, the Improvements or this Lease. Subject to the provisions of
Section 5.5 and Article 2] hereof, Tenant further agrees that it will pay, as Additional
Rent during the period in which the same shall be payable without penalty, all real estate
taxes, taxes measured by rents, personal property taxes, water charges, sewer charges,
assessments (including, but not limited to, assessments for public improvements or
bene?ts), and all other governmental taxes, impositions and charges of every kind and
nature whatsoever, whether or not now customary or within the contemplation of the
parties hereto and regardless of whether the same shall be extraordinary or ordinary,
general or special, unforeseen or foreseen (each such tax, water charge, sewer charge,
assessment and other governmental imposition and charge which Tenant is obligated to
pay hereunder being herein sometimes termed a which, at any time during the
Initial or any Extension Tenn, shall be or become due and payable by Tenant or Landlord
and which shall be levied, assessed or imposed:

6141538 Hill-til!

 upon or with respect to, or shall be or become liens upon,
the Premises or Improvements or any portion thereof or any interest of
Landlord therein or under this Lease; or

- (ii) upon or with reapect to Landlord by reason of any actual or
asserted engagement by Landlord, directly or indirectly in any business,
occupation or other activity in connection with the Premises or
Improvements or any portion thereof; or

upon or against, or which shall be measured by, or shall be
or become liens upon, any rents or rental income, as such, payable to or on
behalf of Landlord, in connection with the Premises or Improvements or
any portion thereof, or any interest of Landlord therein; or

(iv) upon this transaction or any document to which Tenant is a
party creating or transferring an interest or an estate in the Premises or
Improvements; or

upon or against Landlord or any interest of Landlord in the
Premises or Improvements in any manner and for any reason whether
similar or dissimilar to the foregoing,

under or by virtue of any present or future law, statute, ordinance, regulation or other
requirement of any governmental authOrity whatsoever, whether federal, state, county, city,
municipal or otherwise, it being the intention of the parties hereto that, insofar as the same now
or hereafter may lawfully be done, Landlord shall be free from all such costs and expenses, and
all Taxes, such that this Lease shall yield to Landlord not less than the rents reserved hereunder
through the Initial Term and Extension Terms, if any. For purposes of this Section 5.1, any cost,
expense or Tax which lawfully may be paid in installments without penalty or imposition, or risk
of impo'sition, of any lien or security interest to secure the payment thereof, shall be deemed to
become due and payable as the obligation to pay each installment matures.

5.2 Upon the expiration or earlier termination of this Lease (except for a
tet'mination pursuant to the provisions of Article 17 hereof) real estate taxes, assessments
and other charges which shall be levied, assessed or become due upon the Premises or
Improvements or any part thereof shall be prorated to the date of such expiration or
earlier termination.

5.3 Tenant covenants to furnish to Landlord, upon request, official
receipts of the appropriate taxing authorities evidencing the payment of Taxes on the
Premises and lmproVements.

5.4 The certi?cate, advice or bill of the nonpayment of any Tax, made or
issued by the appropriate official designated by law to make or issue the same or to
receive payment of any such Tax, shall be prima facie evidence that such Tax was due
and unpaid at the time of the making of issuance of such certi?cate, advice or bill.

614151312114!?

5.5 Notwithstanding any provision of this Article 5 to the contrary, it is
expressly understood and agreed that Tenant shall not be required to pay or reimburse
Landlord for any of the following: any tax imposed by the Federal government or the
State of Delaware upon the net income or pro?ts of Landlord; (ii) any transfer tax which
may be imposed upon or with reSpect to any transfer (other than transfer taxes in
conneetibn with a conveyance by Landlord to Tenant) of Landlord's interest in the
Premises; or any amounts paid by Landlord to meet general overhead, administrative
or (except as expressly provided herein) insurance expenses, except such expenses of
Landlord which are reimbursed from payments made by occupants of the Campus
pursuant to the Declaration or are otherwise payable by Tenant as Tenant?s Share of the
Common Area and Facilities pursuant to Section 1.5 hereof.

5.6 Tenant shall have the right at any time during the Term to seek a reduction
in the assessed valuation of the Premises or any portion thereof (including, without
limitation, any improvement), or to contest any Taxes that are to be paid, in whole or in
part, directly or indirectly by Tenant. Any refund of Taxes theretofore paid to the taxing
authority by Tenant shall be paid to, and retained by, Tenant (and if Landlord receives
such refund, it shall forward same to. Tenant); provided, however, that, any
refund obtained for the tax year in which the Commencement Date or Expiration Date
shall occur shall be apportioned between Landlord and Tenant in the manner described in
Section 3.4 above, after Tenant shall first deduct therefrom the reasonable costs and
expenses incurred by Tenant (including, without limitation, reasonable attorneys? fees) in
connection with obtaining such refund. Landlord shall reasonably cooperate with Tenant,
at Tenant?s expense, in connection with any action or proceeding commenced by Tenant
pursuant to this Section 5.6. If applicable law requires that such action or proceeding be
brought by, or in the name of, Landlord, Landlord shall join therein, at Tenant?s expense,
or permit such action or proceeding to be brought in its name.

6. Use and Compliance with Law. etc.

Subject to the provisions of Sections 9 and 20 of this Lease, Tenant agrees
that without the prior written consent of Landlord it will not use the Premises, nor shall it
suffer or permit the same to be used, for any purpose other than the Permitted Uses
commensurate with a ?rst class science and technology campus, and consisting of such
improvements, equipment, ?xtures and other improvements as shall be reasonably
necessary in order to pursue the Permitted Uses. Notwithstanding anything in this Lease
to the contrary, absent Landlord?s consent in its sole discretion, Tenant shall not rent
space to any third party that, in Landlord?s reasonable discretion, competes with or
provides a common service of any tenant located at another location within the Campus.
The foregoing is not intended to and shall not Operate as any limitation on Tenant?s use of
the Premises for the Permitted Uses.

6.2 Subject to the provisions of Section 6.5 of this Lease, Tenant, throughout
the initial Term and Extension Terms, if any, and at no expense whatsoever to Landlord,
shall comply or cause prompt compliance with all laws and ordinances and the
Orders, rules, regulations and requirements of duly constituted public authorities, foreseen

10



or unforeseen, ordinary as well as extraordinary, and whether or not the same shall
presently be within the contemplation ofthe parties hereto or shall involve any change of
governmental policy-and irrespective of the cost thereof, which may be applicable to the
Premises or Improvements, or the construction, repair or alteration thereof including,
without limitation, the ?xtures and equipment thereof or the use or manner of use Of the
- Premises or improvements (collectively, ?Legal Requirements?). Tenant further agrees
that it will, at its own cost and expense, fully and faithfully perform and observe all
requirements and conditions of all contracts (including insurance policies), agreements
and covenants applicable to the Premises or the ownership, occupancy or use thereof
which are in existence and known to Tenant on the date hereof or which are hereafter
entered into by Tenant or by Landlord with the consent of Tenant, including but not
limited to, all requirements and conditions set forth in instruments recorded as of the
Commencement Date of this Lease and in any instrument recorded thereafter with the
consent of Tenant or any easement appurtenant thereto insofar as the same shall impose
any obligation upon Landlord as owner of the Premises. Notwithstanding anything to the
contrary contained in this Lease, Tenant shall have the right to contest, by appropriate
proceeding, without cost or expense to Landlord, the validity or application of any Legal
Requirements at no cost or liability to Landlord in connection with any such contest.
Tenant shall not be in default for failure to comply with such Legal Requirements if it is
contesting'the validity or applicability of any Legal Requirement and diligently pursuing
the same until the expiration of the legally permitted time following ?nal determination
of Tenant?s contest, provided at no time may Tenant permit any lien to be imposed upon
- the Premises.

6.3 Tenant shall be entitled to an abatement of rent or reduction thereof and/0r
Tenant shall be entitled to terminate this Lease on not less than thirty (30) days? prior
written notice to Landlord by reason of the lawful or unlawful prohibition of Tenant's use
of the Premises; provided, however, the Tenant shall not be entitled to an abatement of
rent or reduction thereof or to terminate this Lease in the event that the prohibition of
Tenant?s use of the Premises is solely caused by Tenant's acts or 0miSSions.

6.4 Tenant agrees to procure or cause to be procured, at its sole cost and
expense, any and all permits, licenses or other authorizations required for the lawful and
proper construction, use, occupation, operation and management of the Premises and the
improvements, except for Landlord's obligation to obtain the COCR. Landlord agrees to
join in applications for such permits, licenses or other authorizations as the owner of the
Premises if such joinder is necessary to obtain or enforce legal rights in same and if such
joinder does not adversely impact Landlord's ability to develop its other holdings or place
a monetary burden on Landlord. -

6.5 Tenant represents, warrants and covenants that Tenant's use of the 
Premises will not result in or involve the use, generation, manufacture, re?ning,
transportation, treatment, storage, handling 0r disposal of, or the conduct or performance
of any activity in connection with, any hazardous substance or hazardous waste, as such
terms are de?ned in the Delaware General Waste Management Act, 7 Del.C. Chapter 60,
the Delaware Hazardous Waste Management Act, 7 Del.C. Chapter 63, the Federal
Resource Conservation Recovery Act of 1976, as amended, Sec.690, e_t the Federal

 

11

614153.! till-till

Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Sec. 9601, gt and the regulations promulgated under said Acts
as well as the provisions of any other similar or successor legislation (collectively,
?Hazardous Materials?), which would subject the Premises or Landlord to any liability,
including damages, penalties or ?nes, or any lien on the Premises under such laws or
regulations or under the Federal common law or the common law of the State of
Delaware (all such laws, regulatiOns and common law are collectively referred to as
Tenant represents, warrants and covenants that Tenant?s use of the Premises
will at all times be in compliance with the terms and conditions as set forth in the
Brown?elds Development Agreement by and between the Department of Natural
Resources and Environmental Control and the University of Delaware dated
October 27, 2009, and the Environmental Covenant (Operable Unit 5) and Environmental
Covenant (Operable Unit 6) by and between DNREC and Landlord to be entered into by
the Landlord, and such other Final Plans of Remediation and Environmental Covenants
for Operable Units 5 and 6 as may be entered into by Landlord and DNREC in the future
(the Agreements?) and the Contaminated Materials Management Plan for Operable
Units 5 and 6 to be prepared by Dutlield Associates, Inc. on behalf of Landlord for
DNREC (collectively, the ?Brown?elds Agreement?) (the Requirements?).
Landlord may, in its reasonable judgment from time to time during the Term if Landlord
reasonably determines that the operations of Tenant could be in violation of the
DNREC Requirements, and (ii) does not arise out of the presence of the Existing
Contamination (as hereinafter de?ned), require Tenant to perform a Phase 1
environmental audit of the Premises, the results of which shall be provided to
Landlord by Tenant. If such audit discloses the existence of any condition warranting
further review or inquiry in Landlord?s reasonable judgment, Landlord may require
Tenant to perform a Phase 2 environmental audit of all or a portion of the Premises, the
results of which shall be provided by Tenant to Landlord. All such audits shall
be performed at Tenant?s sole cost and expense if the results of the assessments con?rm a
violation by Tenant of any DNREC Requirements or Laws, otherwise the assessments
shall be at Landlord?s costs and expense.

6.6 Tenant shall indemnify and hold harmless Landlord, its trustees, members,
directors, of?cers, partners and any of its employees, against all cost incurred (including,
without limitation, amounts paid pursuant to penalties, ?nes, orders, judgments or
settlements and as attorney's fees), arising out of any claim made by Federal, State or
local agencies or departments or private litigants or third parties with respect to violations
or alleged violations by Tenant or any of its agents, employees, contractors or invitees, or
anyone holding the Premises or the Improvements or any part thereof through or under
Tenant, of any Laws, and speci?cally excluding the obligations of Landlord under
Section 6.7 below.

6.7 Notwithstanding anything contained in this Lease to the contrary,
Landlord acknowledges that it shall be responsible for the remediation (?Landlord?s
Remediation?), at its sole cost and expense, of any known or unknown contamination
located at or has migrated from the Premises as of the date of this Lease, for which
remediation is required by the Delaware Department of Natural Resources and
Environmental Control in order to comply with restricted use standards and

12

6 4 513 lZ?ldlIZ

that would allow for Tenant?s use of the Premises as provided herein (collectively, the
?Existing Contamination?). In performing Landlord?s Remediation, Landlord shall use
commercially reasonable efforts to minimize interference with Tenant?s use and
enjoyment of the Premises as provided herein. Landlord shall indemnify, defend and hold
harmless Tenant, its members, directors, of?cers, partners and any of its employees, and
any Leasehold Mortgagee, from time to time, from and against all cost incurred
(including, without limitation, amounts paid pursuant to penalties, ?nes, orders,
judgments or settlements and as attorney's fees), arising out of any claim made by
Federal, State or local agencies or departments or private litigants or third parties with
respect to the failure by Landlord to comply with its obligations under this Section 6.7.
Contemporaneously with the execution and delivery of this Lease, Landlord agrees to
execute and deliver (and cause the University of Delaware to eXecute and deliver) the
Environmental indemnity and Release Agreement in favor of Tenant in the form attached
hereto as Exhibit -

7. Public Utility Charges; Storm Water Management; Easements

7.1 Tenant agrees to pay or cause to be paid all charges for gas, water, sewer,
electricity, light, heat, power, telephone or other communication service or other utility or
service used, rendered or supplied to, upon or in connection with Improvements, as well
as all costs and expenses related to the bringing of such utilities to the Premises and/or to
the Improvements, throughout the Initial Term and Extension Tenns, if any. Tenant
expressly agrees that, Landlord is not, nor shall it be, required to furnish to Tenant or any
other occupant of the Premises or Improvements, any water, sewer, gas, heat, electricity,
light, power or any connections thereto, or any other facilities, equipment, labor,
materials or services of any kind whatsoever. If any utility company requires the
execution of an easement agreement with respect to the Premises or any parcel owned in
fee by LandIOrd in order to provide utility service to the Premises, Landlord agrees to
execute and deliver such easement agreement, without additional cost to Tenant, subject
to Landlord?s reasonable approval thereof as to both form and content, which approval
shall not be unreasonably withheld, conditioned or delayed; provided, however, that the
"location of any such easement shall be subject to the approval of Landlord in its sole and
absolute discretion. No such easement shall adversely impact ability to
develop its other holdings within the Campus. Furthermore, Landlord hereby reserves (3)
the right to relocate such easement and the related utility facilities at any time at
Landlord?s sole cost and expense, without material interruption in service to the Premises
and reimbursement of Tenant?s third party costs related to such relocation(s), and the
right, for itself and for other occupants of the Campus, to tap into any such utility
facilities, at the sole cost and expense of Landlord or such other occupants, for the
purpose of providing such utilities to other parts of the Campus, so long as neither of
the foregoing results in a material disruption of such utility service to the Premises or
materially interferes with the use and operation of the Premises, (ii) the design and
construction of the proposed ?tapping? into the utilities has been approved by Tenant,
such approval not to be unreasonably withheld, conditioned or delayed, and ?tappee?
will provide to Tenant costs associated with their proportional share of the original
construction costs of said utility improvement. These utility reimbursements will only
apply to utilities that Tenant has brought in for their exclusive use. For the avoidance of

13

6 4 518 littlde

doubt, Campus provided or Tenant provided utilities that are intended to be shared
utilities will be exempt from this reimbursement obligation.

7.2 Tenant shall be responsible for the design, construction and maintenance,
at its sole cost and expense in accordance with the requirements of Articles 8 and 9, of all
storm water management systems and facilities required by any governmental or quasi-
governmental authority in connection with the construction, erection, maintenance,
alteration and reconstruction of Improvements, which systems and facilities shall be
located on the Premises, but, subject to Landlord?s consent, not to be unreasonably
withheld, may be tied into common storm sewer connection points elsewhere on the
Campus.

8. Maintenance. Repairs: Right of Inspection

Throughout the Initial Term and Extension Terms, if any, and at no
expense to Landlord whatsoever, Tenant shall maintain the Premises, including, without
limitation, all grassed and landscaped areas, and the Improvements (as de?ned in Section
9.l) in good condition and shall make or cause to be made all repairs, ordinary
as well as extraordinary, foreseen as well as unforeseen, necessary to keep the
Improvements and the Premises in good and lawful order and condition in keeping with a
?rst class science and technology campus. The term ?repairs? shall include
replacements, restoration and/or renewals when necessary. Throughout the initial Term
and Extension Terms, if any, and at no expense to Landlord whatsoever, Tenant shall
maintain in ?rst class condition commensurate with a ?rst class science and technology
campus any detention ponds, drainage mechanisms and other mechanisms, structures,
devices and facilities, including any utility and storm water management facilities
servicing the Premises, located on the Premises or elsewhere in the Campus which are or
hereafter may be constructed, erected or maintained in connection with the development
of, or the maintenance of, improvements on the Premises.

8.2 On not less than 48 hours' advance notice (but without notice in the event
of an emergency), with a Tenant provided escort, Tenant shall permit Landlord and the
authorized representatives of Landlord to enter the Premises and the Improvements at all
reasonable times during usual business hours for the purpose of inspecting the same. In
the event Tenant has failed to commence work on any repair or required maintenance,
including, without limitation, of grassed areas and landscaping, for a period of thirty (30)
days following written demand by Landlord (or has failed to commence work on any
repair required to eliminate a material risk of injury to person or property immediately
upon verbal or written demand by Landlord), Landlord, .in addition to and without
limitation of its rights under Article 15, or the exercise thereof, may enter the Premises
and Improvements for the purpose of making such repair or performing any work that
may be necessary to comply with any Legal Requirements. The performance thereof by
Landlord shall not constitute a waiver of Tenant's obligation to perform the same and
Tenant shall pay to Landlord, within thirty (30) days of Landlord's written demand
therefor, all reasonable expenses incurred by Landlord in making such repairs.

l4

6 4l533 

8.3 Landlord and Landlord?s authorized representatives entering the Premises
agree to abide by all security, operating, maintenance and safety procedures in place by
Tenant about which they have been previously advised by Tenant.

9. Improvements and Alterations

9.1 Tenant agrees, at its sole cost and expense, to construct and maintain (in a
?rst class manner consistent with the nature of the Campus) such improvements on the
Premises as Tenant shall desire, and as are approved by Landlord, which are initially to
consist of multiple structures totalling 300,000: square feet, and which may expand up
to 900,000: square feet, including, without limitation, lighting and landscaping,
driveways, driveway entrances, walkways, parking areas, utilities and other amenities as
are satisfactory to Tenant and approved by Landlord pursuant to the provisions of Section
9.2 and are located on the Premises or other property owned by Landlord as may be
required by authorities having jurisdiction or as may be approved for construction by
Landlord in connection with deveIOpment of the Premises (the ?lmprovements?). The
initial location of the proposed Improvements and general design scope are as set forth on
Exhibit attached hereto. In addition, as part of the Improvements, and concurrent
with the construction of the initial building on the Premises, Tenant shall construct for the
bene?t of Landlord certain infrastructure within the Campus for the use and bene?t of
Landlord and tenants of the Campus, as such infrastructure is more fully set forth on
Exhibit ?13" attached hereto (the ?Infrastructure Improvements?). Landlord shall provide
Tenant such easements or licenses as may be reasonably necessary to allow for the
installation of and/or connection to the Infrastructure Improvements. Landlord
acknowledges that Tenant may phase its construction of the Improvements. If
construction of such Improvements shall not be commenced on or before January 1,
2014, either Landlord or Tenant shall have the right to terminate this Lease upon sixty
(60) days? written notice given at any time prior to the commencement of construction of
the Improvements, provide if commencement of construction occurs within such sixty
(60) day period, the termination notice shall be null and void and of no further force or
effect. In the event of such termination, this Lease shall terminate without further
recourse to the parties hereto. Once construction has commenced, it shall be diligently
completed. Thereafter, the covenant set forth in the ?rst sentence of this section 9.1 shall
operate to obligate Tenant and Tenant?s successors in interest to maintain the
Improvements in a ?rst class manner as originally constructed or, at the election of
Tenant, to remove the Improvements ancillary to the'substitution and replacement thereof
pursuant to Section 9.5.

9.2 Landlord reserves the right to approve and disapprove in writing and in
advance, which approval shall not be unreasonably withheld, conditioned or delayed, all
subdivision, engineering, landscaping, site, building and other plans and speci?cation
(hereinafter collectively referred to as the ?Plans?) underlying the construction, erection,
alteration, reconstruction and maintenance of the Improvements, and Tenant agrees that it
shall not construct, erect, alter, reconstruct or maintain any Improvements, the Plans for
which have not been the subject of Landlord's prior written approval. Plans submitted to
Landlord for approval pursuant to this Section 9.2 also shall be suf?ciently detailed so as
to enable Landlord to assess, among other things, the size, location and intended use of

IS

?ldl?? lyl?ll

the buildings, other structures and improvements contemplated, the materials from which
such buildings, other structures and improvements are to be fashioned, the location,
design and capacity of all grading, sterm drainage, storm management, sediment and
erosion control facilities and utilities which are to service such buildings, other structures
and improvements, and the location, design and capacity of all means of pedestrian and
vehicular ingress and egress to and from such buildings and otherstructures. Landlord

shall not unreasonably withhold its approval of Plans submitted to'it pursuant to this
Section 9.2. Without implication as to other basis upon which Plans reasonably may be
disapproved, however, Landlord and Tenant agree that Landlord shall not be found to
have unreasonably withheld its approval of Plans where Landlord's disapproval is based
upon:

any failure of the Plans to provide for buildings, other
structures and improvements the design, fabrication, location and use of
which is consistent with high?quality development and a ?rst class science
and technology campus; 

(ii) any failure of the Plans to conform with Legal
Requirements; or 

any failure of the Plans to preserve intact the developability
of other lands of Landlord or to emphasize vertical development to
maximize density of development.

9.3 Plans submitted by Tenant to Landlord for approval pursuant to Section
9.2 shall be accompanied by noti?cation to such effect from Tenant to Landlord. Within
the ten (10) Business Day period immediately following Landlord's receipt of Such Plans,
Landlord shall, by written noti?cation to Tenant, signify its approval or disapproval of
the same. Any disapproval of Plans, or any portion thereof, shall set forth in reasonable
detail the basis or bases of such disapproval, The failure of Landlord to signify its
approval or disapproval of Plans submitted pursuant to this Article 9 within such ten (10)
Business Day period shall constitute Landlord?s approval thereof. The right of plan
approval and disapproval reserved to Landlord in this Article 9 shall be exercisable by,
and inure solely to the bene?t of, Landlord and its successors in interest hereunder. In no
event shall anything contained in this Article 9 be construed as conferring upon any
person other than Landlord and its successors in interest hereunder any right to approve
or disapprove the construction, erection, substitution, replacement or maintenance of any
Improvements hereafter located upon the Premises. Landlord?s review of any Plans shall
be solely for Landlord?s bene?t and may not be relied upon in any manner by Tenant or
any third party. For the purpose of clarity, Landlord will review partial submissions as
may be required to comply with regulatory authority requirements. Landlord shall
reasonably cooperate with Tenant to expedite Plan review and approval from to time as
may reasonably be requested to meet the scheduling concerns of Tenant.

9.4 Landlord reserves the right to approve and disapprove in writing and in
advance, which approval shall not be unreasonably withheld, conditioned or delayed, all
zoning and land use submissions to the City of Newark, and Tenant agrees that it shall

16



 

not make any such submission which has not been the subject of Landlord's prior written
approval. Tenant shall provide Landlord with no less than two (2) business days? (or as
soon as practical baSed upon the circumstances) advance written notice of any private or
public meetings between Tenant and any representatives of the City of Newark, the
Delaware Department of Natural Resources and Environmental Control, or the Delaware
Department of Transportation, and Landlord shall have the right to attend any and all
such meetings at its discretion. 

9.5 Tenant may, at its sole cost and expense, alter or add on the Premises to
the improvements constructed pursuant to Section 9.1 and may make substitutions and
replacements of the same, subject in each case to prior compliance with the provisions of
this Article 9, including, without limitation, Sections 9.2 and 9.3.

9.6 All constructiOn, erection, maintenance, alteration and reconstruction of
Improvements authorized in this Article 9 shall be performed in a good and workmanlike
manner and in compliance with all Legal Requirements of duly constituted public
authorities, in compliance with any enforceable restrictions relating to the character of
improvements on the Premises, and in further compliance with the requirements of all
insurance policies required to be maintained by Tenant hereunder. Except in connection
with accessing utilities or other common infrastructure, all improvements and alterations
and additions thereto and replacements thereof shall be located wholly within the
perimeter of the property comprising the Premises and shall be independent and not
connected with improvements erected on any adjoining property.

9.7 Tenant shall pay all costs and expenses of all construction,
erection, maintenance, alteration and recOnstl'uction authorized by this Article and shall
discharge all liens ?led against the Premises arising out of the same; provided
that Tenant shall have, no obligation to discharge any mechanic's, laborer's,
materialman?s, supplier's or vendor's lien if payment is not yet due under the contract
which is the foundation thereof. Tenant shall procure and pay fer all permits, licenses
and approvals required in connection with such construction, erect-ion, maintenance,
alteration and reconstruction.

9.8 During the construction, erection, alteration or reconstruction of any
Improvements, provided that at all such times Landlord has appropriate, commercially
reasonable insurance, Landlord and its architects and engineers and other representatives
shall have the right to inspect the construction, erection, alteration or reconstruction of
the improvements. Any such inspections shall be solely for the bene?t of Landlord and
may not be relied upon in any manner by Tenant or any third party. In the event that
Landlord reasonably determines that such construction, erection, alteration or
reconstruction is not being done in conformity with the requirements of this Lease,
Landlord shall have the right, upon written notice (containing reasonable detail regarding
Tenant?s speci?c deviations from the requirements of this Lease) to Tenant, to require
that Tenant take such steps as are necessary to comply with the requirements of
this Lease. Nothing'contained herein shall be deemed to obligate Landlord to inform
Tenant of any problem, deficiency or omission in such construction, erection, alteration

17

?ldl?? 

or reconstruction, nor shall Landlord's failure to so notify Tenant be deemed a waiver of
any of Landlord?s rights under this Lease.

9.9 upon completion of the construction, erection, alteration or
reconstruction of any Improvements, Tenant shall deliver the following to Landlord: 
evidence reasonably satisfactory to Landlord that there are no uncontested liens by

Tenant?s contractors, subcontractors and suppliers; and a Certificate of Occupancy or
local equivalent.

9.10 Title to all Improvements, additions thereto and replacements thereof,
made, erected, constructed, installed or placed upon, below or above the Premises and
permanently affixed shall be and remain in the Tenant during the Term of this Lease.

9.11 Notwithstanding anything contained in this Lease to the contrary, subject
to extension for Landlord Delay (as hereinafter de?ned) and _fo_rg maieure Landlord
shall have the right to terminate this Lease, at Landlord?s sole discretion, in the event that
either Tenant fails to commence construction of the Improvements within the period
set forth in Section above, or following such commencement of construction, such
construction ceases for any consecutive six (6) month period prior to completion.
Landlord shall exercise this right by giving notice of such termination to Tenant and
thereupon this Lease shall terminate on the date thereof, as though such date were the
date set forth in this Lease for the expiration of the Term. As used herein, ?Landlord
Delays? shall be defined as any period of time that Tenant is delayed in the performance
of the Improvements (?Tenant?s Work?) by reason of: any default or delay by
Landlord, or by Landlord?s agents, employees or contractors, in the performance of
Landlordls obligations under the Lease (including, without limitation, Landlord?s failure
to timely respond to any requests for Landlord?s approval with respect to Tenant?s Work,
and (ii) any delay in the performance of Landlord?s Remediation by Landlord. Except
for Landlord?s failure to act within an agreed upon time period as set forth in the Lease
(in which event Landlord shall be charged with any period of delay arising from or after
the date that Landlord was required to act in accordance with the provisions of the

Lease), Landlord shall not be charged with any period of Landlord Delay prior to the date
that Landlord receives a written notice from Tenant of such delay.

9.12 Tenant shall have the right (subject to applicable permitting requirements
and City of Newark approvals) to use the facilities associated with the relocated electric
utility substation on the Campus initially as shown on the Plan attached hereto as Exhibit
D, but subject to final agreement of Landlord, Tenant and the City of Newark (the
?electric utility facilities?), and to renovate the relocated electric utility facilities as may
be reasonably necessary to comply with Tenant?s plans for the Improvements. This right
shall be non-exclusive except as otherwise stated herein. Landlord shall provide
reasonable easements over and across the Campus for the bene?t of Tenant for access to
and use of the relocated electric utility facilities; provided no such easement shall
adversely impact Landlord?s ability to develop its other holdings within the Campus.
Tenant shall have the right exclusively to install, construct, reconstruct, replace, maintain,
operate and own, within the area of the electric utility facilities, equipment (the
?Interconnection Equipment?) required or advisable in Tenant?s reasonable opinion to

l8

?453.3 

 

 

permit the interconnection with the PJM system of the electric generating facility, or
other electric utility as applicable, to be constructed and operated by Tenant as part ofthe
Improvements. Landlord will not offer a similar right to use the electric utility facilities to
any other person unless Tenant shall have had the opportunity to conduct a reasonable
review of any change in the con?guration or use of the electric utility facilities that may
arise from such offer, and shall have approved such offer. Tenant may not fail or refuse to
approve an offer unless the change in con?guration or use of the electric utility facilities
entailed in such offer reasonably could materially and adversely affect Tenant?s ability or
materially increase the cost to use the electric utility facilities, or to install, construct,
reconstruct, replace, maintain, Operate or own the Interconnection Equipment.

9.13 Landlord shall reasonably cooperate with Tenant in Tenant?s intended use
of communications utility ?ber located at the Campus. Landlord shall provide reasonable
easements for Tenant?s right-of-way to and from the aforesaid ?ber optic lines nearest the
Premises.

9.14 Tenant understands the Landlord (or the University) has steam
requirements ranging from 18,000 lbs/hr in the summer to 120,000 lbs/hr in the winter,
and the Landlord understands that, depending on the final power plan design, there may
be excess steam capacity from the power plant to supply this load. Tenant and Landlord
agree to evaluate the opportunity for the Tenant to provide steam capacity to the
UniVersity and to evaluate therequirements for installation of steam interconnection lines
between the power plant and the University?s existing steam plant. Both the Tenant and
the Landlord agree to pur5ue this option as the project design proceeds. In the case that
these discussions result in the installation of piping interconnections and subsequent
steam provision by Tenant to Landlord, both the Tenant and the Landlord agree to
develop an agreement, separate from this Lease Agreement, that provides for the terms
and conditions of the steam provision.

10. Liam

10.1 Subject to the provisions of Article 21, Tenant will remove and
discharge any charge, lien, security interest or encumbrance upon the Premises or
Improvements or upon any Basic Rent or Additional Rent which arises for any reason,
including all liens which arise out of the construction, use, occupancy, repair or
rebuilding of the Premises or Improvements or by reason of labor or materials furnished
or claimed to have been furnished to Tenant or for the Premises or Improvements, but not
including any sublease, assignment or mortgage permitted hereunder, or any mortgage,
charge, lien, security interest or encumbrance created by Landlord; provided that Tenant
shall have no obligation to discharge any mechanic's, laborer's, materialman's, supplier's
or vendor's lien if payment is not yet due under the contract which is the foundation
thereof.

10.2 Nothing contained in this Lease shall be construed as constituting the
consent or request of Landlord, express or implied, to or for the furnishing of any
materials for any construction, alteration, addition, repair or demolition of or to the
Premises or Improvements, or any part thereof. Notice is hereby given that Landlord will

19

614153 12:14le

not be liable for any labor, services or materials furnished or to be furnished to Tenant, or
to anyone holding the Premises or the improvements or any part thereof through or under
Tenant, and that no mechanic's or other lien for any such labor, services or materials shall
attach to or affect the interest of Landlord in and to the Premises.

l. Indemni?cation

ll.l Tenant covenants and agrees, at its sole cost and expense, to indemnify
and save harmless Landlord and any trustee, of?cer, director or member of Landlord
from and against any and all claims by or on behalf of any person, firm, corporation or
governmental authority, arising from the construction, reconstruction, occupation, use,
possessiOn, conduct or management of, or from any work or thing whatsoever done in or
about the Premises by Tenant or Tenant?s agents, employees, servants or invitees during
the Initial Term or any Extension Term, or the permitted subletting of any part thereof,
and further to indemnify and save Landlord and any trustee, of?cer, director or member
of Landlord harmless from and against any and all claims arising from the condition of
any Improvement, or spaces therein or appurtenant thereto, or arising from any breach or
default on the part of Tenant in the performance of any covenant or agreement on the part
of Tenant required to be performed pursuant to the terms of this Lease, or arising from
any act or negligence of Tenant, or any of its agents, contractors, servants, employees or
licensees, or anyone holding the Premises or the Improvements or any part thereof
through or under Tenant, or arising from any accident, injury or damage whatsoever
caused to any person, ?rm or corporation, including any subtenant of Tenant occurring
during the Initial Term or any Extension Term, in or about the Premises (other than those
caused in whole or in part by the gross negligence or willful misconduct of Landlord or
its servants and employees), and from and against all costs, reasonable counsel fees,
expenses and liabilities incurred in or about any such claim, action or proceeding by
counsel satisfactory to Landlord brought thereon; and in case any action or proceeding be
brought against Landlord by reason of any such claim, Tenant upon notice from Landlord
covenants to defend such action or proceeding, unless such action or proceeding is
defended by any carrier of commercial general liability insurance referred to in Article 12
hereof as authorized by the provisions of any policy of commercial general liability
insurance maintained pursuant to Article 12 and as dictated by the terms of such policy.

1 1.2 Landlord agrees to indemnify, defend and hold harmless Tenant and any
officer, director or member of Tenant, during the Term against and from all claims, losses
(which shall not be limited to the loss or restriction of use of the Premises), liabilities,
costs, actual damages or expenses (including reasonable attorney?s, consultant?s and
expert fees and expenses actually incurred) but excluding consequential damages,
directly or indirectly arising out of or attributable to any injury to any person (including
death) or damage to any property which arise from Landlord?s acts, omissions,
negligence, willful misconduct or from the failure of Landlord to keep, observe and
perform any of the terms, covenants, conditions and provisions of this Lease to be kept,
observed or performed by Landlord, unless the same is caused by the act or omission,
negligent or intentional, of Tenant or Tenant?s servants or employees. The provisions of
this Section 11.2 shall be in addition to, but not in limitation of, the Environmental
Indemnity. 

20

61453.8 [2314??

12. Insurance; Casualg

12.1 Tenant?s Obligation. At all times during the Tenn of this Lease, Tenant,
at its own cost and expense, shall maintain, with insurance companies duly licensed or
authorized to do business in the State of Delaware, which are rated by A.M. Best or
better with a Financial Rating of at least and which are acceptable to the
Landlord, the following insurance coverages and limits through a combinatiOn of primary
and excess coverage:

Commercial General Liability Insurance. Tenant shall provide
commercial general liability insurance with a Five Million Dollars
per occurrence for bodily injury (including death) and property
damage and One Million Dollars for personal injury. Coverage
should be written on ISO Form CG 00 01 10/01, or its equivalent, and must not
include any exclusiOn for explosion, products/completed operations, or cross
liability. Said coverage shall insure against any claims occurring in connection
with 'or arising in any way out of the use and/or occupancy of the demised
Premises by Tenant. The coverage afforded to additional insureds under Tenant?s
policy shall be primary and non-contributory with any insurance carried by the
Landlord. Defense costs shall be provided.

Automobile Insurance. Tenant shall maintain automobile liability
insurance with a combined single limit for bodily injury and property damage of
not less than One Million Dollars with respect to Tenant?s
owned, hired or non-owned vehicles.

Workers Compensation insurance. Workers compensation
insurance shall meet or exceed the statutory requirements set by the State of
Delaware and shall include employer?s liability insurance. The employer?s
liability insurance shall afford a limit of not less than: 

Bodily Injury by Accident: $500,000 per accident
Bodily Injury by. Disease: $500,000 each employee

Fromm Insurance. Tenant shall insure all Improvements against
loss or damage. Such insurance shall be effected on an "All Risks" basis in an
amount suf?cient at all times to cover the full repair, restoration or replacement
cost of such real property (excluding foundations, and shall not be subject to any
coinsurance provision. Unless this Lease is terminated following a casualty, all
proceeds from such insurance as respects loss or damage shall be used to repair,
restore and replace the Improvements to the extent hereinafter provided.

Other Insurance Provisions. The insurance coverages required by
this Lease each are to contain, or be endorsed to contain (except for Worker?s
Compensation coverage, which shall comply with Legal Requirements), the
following provisions:

2]

?ldl?? 

61053.8 

Landlord, the University of Delaware, and the trustees,
empIOyees and agents of both are to be covered as additional insureds
without liability for premiums or the acts or omissions of the named
insureds. Notwithstanding the foregoing, such parties shall be named
solely as their interests may appear, and, in any event, shall not be named
on the Property Insurance.

(ii) For any claims related to this Lease, the Tenant's insurance
coverage(s) shall .be primary insurance as respects Landlord, the
University of Delaware and the trustees, employees and agents of both.
Any insurance or self-insurance maintained by Landlord, the University of
Delaware, and the trustees, employees and agents of both shall be excess
of the Tenant's insurance and shall not contribute with it.

The Tenant?s insurance(s) shall apply separately to each
insured against whom claim is made or suit is brought, except with respect
to the limits of the insurer?s liability.

(iv) Each insurance policy required by this Lease shall follow
the cancellation terms set forth in the respective insurance policies.

If any of the aforementioned insurance policies are written
on a claims-made basis, the Tenant warrants that a) the policy retroactive
date will not be later than the date of this Lease, and b) continuous
coverage will be maintained or an extended discovery period will be
exercised for a period of two years beginning from the time the term of
this Lease has ended.

(vi) Neither Landlord?s failure to insist that any insurance
documentation or evidence of payment be delivered, nor Landlord?s
acceptance of any of the same shall relieve Tenant from any obligation
under this Section of the Lease.

(vii) Certi?cates of insurance evidencing all coverage required
herein shall be provided to Landlord at the commencement of this Lease
and at least annually thereafter. All required certificates of insurance shall
eliminate the wording 'endeavor to? and 'but failure to mail such notice
shall impose no obligation of liability of any kind upon the company, its
agents or representatives' from the cancellation provision. Certi?cates of
insurance provided by Tenant to Landlord shall serve as adequate
evidence of compliance by Tenant with the provisions of Paragraph 12,

I and all of its subparagraphs.

All property insurance policies required to be maintained
hereunder shall include a waiver of subrogation in favor of Landlord and
the University of Delaware.

22

(ix) Any deductibles mandated by the insurance required to be
maintained hereunder shall be fully assumed by Tenant.

Landlord reserves the right to review and modify any limits
of insurance required herein in accordance with commercially reasonable
standards for similar properties not more frequently than once in any ?ve
(5) year period during the Term..

(xi) Tenant shall, whenever required by Landlord, deliver to
Landlord evidence reasonably satisfactory to Landlord of all policies and
endorsements of the insurance herein required.

12.2 Prior to any entry onto the Premises by Tenant or any agent, employee or
invitee, Tenant shall deliver to Landlord certi?cates of insurance for all insurance
policies required pursuant to Section "12.1. Prior to the expiration of each insurance
policy required pursuant to Section 12.1, Tenant shall deliver to Landlord certificates
evidencing the renewal of such coverage.

12.3 If Tenant shall fail, refuse or neglect to obtain or to maintain any insurance
that it is required to provide or to fumish Landlord with satisfactory evidence of coverage
on any such policy, upon ten (10) days prior written notice to Tenant, Landlord shall have
the right to purchase such insurance. Tenant shall reimburse Landlord for the cost of
obtaining such insurance, together with interest thereon at the Lease Interest Rate from
the date paid by Landlord, within ten (10) days after delivery of a statement from
Landlord for the amount due. 

12.4 If requested by Landlord (but not more often than once in any 5 year
period), Tenant shall have the ?ll] replacement cost of the improvements determined by

an MAI licensed appraiser satisfactory to Landlord. Tenant shall deliver such

determination to Landlord. Alternatively, Landlord may require that inflation guard
coverage be provided.

12.5 [Reserved]

12.6 Landlord and Tenant, for themselves and their respective insurers, hereby

release each other of and from any and all claims, demands, actions and causes of action,

(including, without limitation, subrogation claims), for loss or damage to their respective
property, even if the loss or damage shall have been caused by the fault or negligence of
the other party, or anyone for whom such party may be responsible. The waiver and
release provided in this Section shall be effective only with respect to loss or damage 
covered by insurance or required to be covered by insurance pursuant to the terms of this
Lease, and occurring during such time as the relevant insurance policy contains either

i a waiver of the insurer?s ri ht of subro ation a ainst the other arty, or ii a clause or


endorsement to the effect that the waiver and release provided in this Section shall not
adversely affect or impair such insurance or prejudice the right of the insured to recover
under the insurance policy. Each party will use its best efforts to obtain such a clause or
endorsement, but if an additional premium is charged therefor, the party bene?ting from

23

6141518 

such clause or endorsement, if it desires to have such waiver, will pay to the- other the
amount of such additional premium within ten (10) days after delivery ofa statement for
the amount due.

12.? If at any time during the Term, the Improvements are damaged or
destroyed by fire or other casualty (a Tenant shall give written
notice thereof to Landlord. Tenant shall have the sole right to make any proof of loss and
in adjusting any claim for insurance proceeds in connection with the Casualty. Upon the
occurrence of a Casualty, Tenant shall commence and proceed with due
diligence to repair, restore and replace the Improvements to their condition immediately
preceding the Casualty. All such work (the "Restoration") shall comply with the
provisions of Article 9. Tenant's obligations under this Section 12.? shall not be affected
by any event or circumstance, including, without limitation, the insuf?ciency of the Net
Insurance Proceeds to complete the Restoration.

12.8 All insurance proceeds shall be applied first to reimburse Tenant for the
necessary and preper expenses paid or incurred by Tenant in the adjustment and
collection of the insurance proceeds (including, without limitation reasonable attorneys'
fees and disbursements). The balance remaining (the ?Net Insurance Proceeds") shall be
paid and applied in accordance with the provisions of this Article. In the event of a
Casualty resulting in damage to the Improvements of less than $15,000.000.00 (a ?Minor
Casualty?), the Net Insurance Proceeds shall be paid directly to Tenant and used by
Tenant to pay the costs of Restoration ("Restoration Costs"), subject to and in accordance
with the provisions of this Article and any Leasehold Mortgage. In the event of a
Casualty resulting in damage to the Improvements of $15,000.000.00 or more (a Major
Casualty"), the Net Insurance Proceeds shall be paid to the Insurance Trustee and shall be
held, invested and disbursed, subject to and in accordance with the provisions of this
Article and any Leasehold Mortgage. The ?Insurance Trustee" shall mean an
Institutional Lender jointly selected by Landlord and Tenant (or if the provisions of any
Leasehold Mortgage so provided as selected by the holder of any Leasehold Mortgage) to
perform the functions described herein.

12.9 Tenant shall be solely responsible for any Restoration Costs which are in
excess of the Net Insurance Proceeds.

l2.lO Subject to the terms of any Leasehold Mortgage, the Insurance Trustee
shall invest and reinvest the Restoration Funds in United States government securities
backed by the full faith and credit of the United States government. The income from the
investment of the Restoration Funds shall be part of the Restoration Funds and shall be
held, invested, and disbursed in the same manner as the balance of the Restoration Funds.
All reasonable costs, fees, expenses and charges of the Insurance Trustee in connection
with the collection, investment, administration and disbursement of the Restoration Funds
shall be paid by Tenant upon demand by the Insurance Trustee. In the event that Tenant
shall fail to pay such costs, fees, expenses and charges upon demand, the Insurance
Trustee may deduct the amount thereof from the Restoration Funds.

24

6i4l538111'l-1f12

12.1 1 The Insurance Trustee shall disburse the Restoration Funds from time to
time in accordance with requests for disbursement (each, a "Disbursement Request")
made by Tenant and approved by the then Leasehold Mortgagee, or, if there is no
Leasehold Mortgagee, the Landlord. Disbursements may be made directly to contractors
upon presentation of appropriate invoices and lien waivers. No disbursement of
Restoration Funds shall be made without the prior written approval of the then Leasehold
Mortgagee, or, if there is no Leasehold Mortgagee, the Landlord. Landlord shall be
obligated to approve a Disbursement Request provided that Tenant has complied with the
requirements of this Article.

12.12 Subject to the other requirements of this Lease, Restoration Funds shall be
disbursed periodically by the Insurance Trustee as the Restoration progresses in amounts
not exceeding 90% of the value of labor and materials incorporated into the work. The
remaining 10% will be disbursed upon ?nal completion of the Restoration.

12.13 If at any time during the course of the Restoration the then Leasehold
Mortgagee, or, if there is no Leasehold Mortgagee, the Landlord, reasonably determines
that the undisbursed portion of the Restoration Funds will not be suf?cient to complete
the Restoration, Tenant shall deposit the difference, as reasonably determined by
Leasehold Mortgagee or Landlord, as applicable, with the Insurance Trustee, and such
amount shall be held, invested and disbursed in the same manner as the balance of the
Restoration Funds.

12.14 All work for which payment is requested shall comply with the provisions
of this Lease. Landlord shall have the right to inspect the work from time to time to'
determine compliance. Such inspection shall be solely for the benefit of Landlord and
may not be relied upon by Tenant for any purpose.

12.15 Except as otherwise provided in any Leasehold Mortgage, in the event that
Tenant shall fail to commence or complete the Restoration as required by this Article
or otherwise defaults in the performance of its obligations under this Article, or a
default shall occur before or during the course of the Restoration, the Restoration Funds
shall be paid to and retained by Landlord.

12.16 Upon ?nal completion of the Restoration and compliance with the
requirements for the ?nal disbursement, should there be any excess Restoration Funds,
the same shall be paid to Tenant.

12.17 Rent shall not abate during the period when the Premises and
Improvements are not usable by Tenant due to damage or destruction, provided, however,
Tenant shall receive a credit against the Basic Rent for the relevant period in an amount
equal to any rent insurance proceeds actually received by Landlord with respect to such
period. -

12.18 Termination Rights: Fire. Tenant shall have the right to terminate this

Lease if the Improvements located on the Premises are destroyed or damaged by ?re or
other casualty to the extent of at least 35%, 25% or 15% of the total cost of replacing 

25



them, during the third last, Second last or last year, respectively, of the Original Term or
of any Extension Tenn. Tenant?s termination rights under this Section shall be exercised
by written notice to Landlord sent within thirty (30) days after the occurrence of the
destruction or damage, and shall take effect thirty (30) days after mailing thereof. Upon
termination as aforesaid, Tenant shall leave the Improvements which were damaged or
destroyed in their then condition and pay over all insurance proceeds or assign to
Landlord any rights to receive all insurance proceeds, together with a payment to
Landlord of any deductible amount. Upon termination as aforesaid by Tenant, this Lease
and the term hereof and all obligations hereunder not then accrued shall cease and come
to an end.

12.19 Refund of Uneamed Rent. If this Lease is terminated under Section 12.18,
then so long as Tenant is not in default in the payment of any rent due under this Lease
beyond the expiration of any notice and cure period, Landlord shall refund to
Tenant all unearned rent and other charges paid in advance to Landlord, by Tenant.

12.20 The provisions of this Article shall survive the expiration or earlier
termination of this Lease.

13. 92W

13.1 Landlord and Tenant each agree to give the other written notice of any
taking by exercise of the power of condemnation or eminent domain, whether by legal
proceedings or otherwise (a ?Taking?) of all or any portion of the Premises or
Improvements a?er receiving notice thereof.

In the event of a Taking (other than for temporary use that does not materially
interfere with Tenant?s use and operation of the Premises for the Permitted Uses) of the
entire Premises and Improvements or such a substantial part of the Premises or
Improvements that the remaining portion of the Premises and Improvements, after
Reconstruction, would be unsuitable, in Tenant?s reasonable judgment, for the Continued
use and occupancy for the purposes permitted under this Lease (a ?Total Taking?): 
this Lease shall terminate as of the date that possessiOn is delivered to the condemning
authority; Basic Rent and Additional Rent shall be. apportioned as of the date the
Lease terminates; and any condemnation award or payment shall be applied first to
reimburse Landlord and Tenant for the necessary and proper expenses paid or incurred.

13.2 The amount of any condemnation award or payment remaining after such
reimbursement (the ?Net Condemnation Proceeds") shall be apportioned between
Landlord and Tenant in the manner set forth in this Article.

13.3 In the event of a Taking (other than for a temporary use that does not
materially interfere with Tenant?s use and operation of the Premises for the Permitted

Uses) which is not a Total Taking which does not materially interfere with Tenant?s use
and operation of the Premises for the Permitted Uses (a ?Partial Taking?): this Lease
shall remain in full force and effect as to the portion of the Premises remaining
immediately after such Taking; there shall be no reduction in Basic Rent, Additional

26

611153312314?!

Rent or other sum payable under this Lease; any condemnation award or payment
shall be applied ?rst to reimburse Landlord and Tenant for the necessary and proper
expenses paid or incurred by Landlord and Tenant in the collection of the condemnation
award (including, without limitation reasonable attomeys' fees and disbursements); 
Tenant shall proceed with due diligence to repair, restore and replace the Premises and
Improvements as nearly as possible to its condition and character immediately prior to
such Taking (the "Reconstruction"), except for any reduction in area caused thereby. The
work performed under this Section shall comply with the provisions of Article 9; the
Net Condemnation Proceeds and any sums deposited by Tenant pursuant to the provision
below (collectively, the "Reconstruction Funds") shall be held, invested and disbursed by
the Insurance Trustee to pay the costs of Reconstruction, subject to substantially the same
terms and conditions as are applicable to the Restoration Funds under Article 12; 
Tenant shall be solely responsible for any costs of Reconstruction which are in excess of
the Net Condemnation Proceeds; and any balance of the Reconstruction Funds
remaining after completion of the Reconstruction shall be paid to Tenant.

13.4 In the event of a Total Taking, the Net Condemnation Proceeds shall be
apportioned between Landlord and Tenant in proportion to the fair market value of their
respective interests in the Premises and Improvements immediately prior to the Taking,
as if such Taking had not occurred. In the event of 3 Partial Taking, any Reconstruction
Funds remaining after completion of the Reconstruction shall be applied first to
reimburse Tenant for any sums deposited by Tenant pursuant to Section 13.3. The
balance, if any, shall be apportioned between Landlord and Tenant in proportion to the
fair market value of their respective interests in the Premises and Improvements
immediately prior to the Taking, as if such Taking had not occurred. In determining the
fair market value of Landlord's interest in the Premises and Improvements, due
consideration shall be given to both the fair market value of the Premises, as encumbered
by the Lease, and the fair market value of Landlord?s reversionary interest in the
Improvements, taking into account the remaining useful life of the Improvements at the
expiration of the Term, as if such Taking had not occurred.

13.5 Landlord and Tenant shall attempt, in good faith, to agree upon the
apportionment of the Net Condemnation Proceeds or remaining Reconstruction Funds
between Landlord and Tenant. In the event that Landlord and Tenant are unable to agree
upon the apportionment, either party shall have the right to submit such dispute (an

"Apportionment Dispute") to arbitration in accordance with the provisions of this Section
and the arbitration rules of the American Arbitration Association then in existence.
During the ?rst ten (IO) days after either party noti?es the other of its desire to submit the
Apportionment Dispute to arbitration, Landlord and Tenant shall attempt to agree upon a
single person (the "Expert") who shall be MAI certi?ed, shall have a minimum of
ten (10) years experience in appraisal of commercial real estate in the State of Delaware,
and has not conducted within the previous three (3) years, does not presently conduct,
and does not anticipate conducting a material amount of business with either Landlord or
Tenant or their respective affiliates, or otherwise have a ?nancial interest in either
Landlord or Tenant or their respective af?liates and who is otherwise independent (the
"Expert 1f the parties agree upon a single Expert, each of them shall be
responsible for one half of the costs of the Expert so appointed. If Landlord and Tenant

27



are unable to agree upon a single Expert, then within ten (10) days after the expiration of
the period for agreeing upon a single Expert, each party, by giving notice to the other,
shall appoint an Expert who meets the Expert Quali?cations. Such notice shall be
accompanied by a statement of all business conducted by the party making the
appointment, and its Af?liates, with the Expert so appointed. If a party does not appoint
an Expert within ten (10) days after the other party has given notice of the name of its
Expert, the single Expert selected shall then be responsible for deciding the
Apportionment Dispute. if the two Experts are appointed by the parties as provided in
this Section, they shall meet and attempt to decide the Apportionment Dispute
in accordance with the provisions of this Section. If they are unable to agree upon a
resolution of the Apportionment Dispute within twenty (20) days a?er the second Expert
has been appointed, the two Experts shall attempt to select a third Expert meeting the
Expert Quali?cations, within ten (10) days after the expiration of the period for the two
Experts to render a decision. If the two Experts are unable to agree upon a third Expert
within such period, either of the parties to this Lease may apply to the American
Arbitration Association for the appointment of a third Expert who meets the Expert
Quali?cations. The third Expert, whether selected by the two Experts or by the American
Arbitration Association, shall then be responsible for deciding the Apportionment
Dispute. Each of the parties shall be responsible for the costs of its own Expert and one-
half of the costs of the third Expert. in rendering a decision, the Expert(s) shall be
entitled to solicit and receive both oral and written evidence, to conduct hearings and
meetings and to consider any and all evidence which he deems necessary or appropriate
to render his decision; provided, however, that in no event shall the Expert(s) conduct any
ex parte hearings or otherwise receive oral evidence or testimony from any party outside
the presence of the other party or, in the case of written evidence, unless a copy of such
evidence is simultaneously delivered to the other party. The Expert(s) shall have no
power to change the provisions of this Lease in any respect, and the jurisdiction of the
Expert(s) is expressly limited accordingly. The Expert(s) shall render a decision as soon
as possible. Such decision shall be binding, ?nal and conclusive on the parties (except in
the case of manifest error), and judgment thereon may be entered in a court of competent
jurisdiction.

13.6 in the event of a Temporary Taking: this Lease shall not terminate,
there shall be no reduction in Basic Rent, Additional Rent or _other sum payable under
this Lease, and Tenant shall continue to perform and observe all of its obligations under
this Lease as though such Taking had not occurred except only to the extent that it may
be prevented from so doing; any condemnation award or payment shall be applied
?rst to reimburse Landlord and Tenant for the necessary and proper expenses paid or
incurred by Landlord and Tenant in the collection of the condemnation award (including,
without limitation reasonable attorneys' fees and disbursements); the Net
Condemnation Proceeds shall be held by the Insurance Trustee and applied to the
payment of Basic Rent, Additional Rent and any other sums coming due under this
Lease. If the Temporary Taking extends beyond the Expiration Date, Landlord shall be
entitled to the portion of the Net Condemnation Proceeds allocable to the period after the
Expiration Date; at the termination of the Temporary Taking (whether prior or
subsequent to the Expiration Date), Tenant shall proceed with due diligence to repair,
restore and replace the Premises as nearly as possible to its condition prior to such

28

6141518 IUHHZ

Temporary Taking. The portion of the Net Condemnation Proceeds allocable to such
Reconstruction shall be held, invested and disbursed by the Insurance Trustee to pay the
costs of Reconstruction upon substantially the same terms and conditions as are
applicable to the Restoration Funds under Article 12. Tenant shall be responsible for any
costs?in excess of the amotmt of the award; and any balance remaining after
application of the condemnation award pursuant to Section 13.6 shall be paid to Tenant.

13.7 The provisions of this Article shall survive the expiration Or earlier
termination of this Lease. -

13.8 Subject to the provisions of this Article, Tenant reserves unto itself all
awards. payable in connection with any Improvements'constructed by Tenant on the
Premises, and (ii) Tenant hereby waives any loss or damage or claims therefor resulting
from a Taking, except that Tenant may make a separate claim against the condemning
authority for any moving, removal and business dislocation damages or expenses payable
to tenants under applicable law, but in no event shall Tenant make any claim under this
subsection (ii) which would result in the diminution or reduction in the award for the
Premises to Landlord. 

14. Tenant?s Remedies and Limitations on Recouge .

14.1 Notwithstanding anything to the contrary in this Lease, it is speci?cally
understood and agreed that there shall be absolutely no personal recourse or liability for
monetary damages on the part of the Landlord, its successors or assigns, with respect to
any of the terms, covenants and conditions of this Lease in excess of the Landlord?s
equity in the Premises and the rents, issues and pro?ts therefrom. Tenant agrees to look
solely to the equity of Landlord in the Premises and the rents, issues and pro?ts therefrom
for the covenants and conditions of this Lease to be performed by Landlord, and no other

. preperty of Landlord shall be subject to levy, execution or other enforcement procedures
for the satisfaction of Tenant?s remedies. The provisions of this Section are not intended
to limit Tenant?s right to seek injunctive- relief, declaratory judgments, speci?c
performance nor to limit Tenant?s right to claim proceeds of insurance or condemnation
(if any) relating to the Premises. Such agreement is a primary consideration for the
execution of this Lease by Landlord. 

15. Landlord's and Tenant?s Right to Perform Covenants

l5.] Tenant covenants and agrees that if it shall at any time fail to make any
payment or fail to perform any act which Tenant is obligated 'to make or perform under
this Lease, or cause such to be done, then Landlord may elect, but shall not be obligated
to elect, after thirty (30) days? notice to Tenant. (but without notice in the event of an
emergency) and without waiving or releasing Tenant from any obligation of Tenant in
this Lease contained, to make such payment and/or to perform such act, in such manner 
and to such extent as in Landlord's reasonable judgment shall be necessary, and, in so
doing, to pay necessary and incidental costs and expenses, employ counsel and incur and
pay reasonable attorneys? fees. All actual out?'ofapocket expenses so paid by Landlord,
together with interest thereon at the Lease Interest Rate described in Section 3.10 from

29

614151812314??

the date of the making of such expenditure by Landlord, shall be deemed Additional Rent
hereunder and, except as otherwise in'this Lease provided, shall be payable to
Landlord as Additional Rent on the next date upon which rent falls due. Tenant
covenants to pay any such sum or sums with interest as aforesaid and agrees that
Landlord shall have the same rights and remedies in the event of the nonpayment thereof
by Tenant as in the case of default by Tenant in the payment of Basic Rent.

15.2 Landlord covenants and agrees that if it shall at any time fail to perform its
obligations to complete Landlord?s Remediation under this Lease, or cause such to be
done, then Tenant may elect, but shall not be obligated to elect, after thirty (30) days'
notice to Landlord and without waiving or releasing Landlord from any obligation of
Landlord in this Lease contained, to perform such act, in such manner and to such extent
as in Tenant's reasonable judgment shall be necessary, and, in so doing, to ?pay necessary
and incidental costs and expenses, employ counsel and incur and pay reasonable
attorneys? fees. All sums so paid by Tenant and all necessary and incidental costs and
expenses in connection with the performance of any such act by Tenant, together with
interest thereon at the Lease Interest Rate from the date of the making of such
expenditure by Tenant, shall be payable to Tenant within thirty (30) days of Tenant
submitting invoices therefor. Notwithstanding anything to the contrary in this Lease, if
Landlord fails to so reimburse Tenant such amounts and interest, Tenant shall have the
right to deduct all such amounts against the payments of Basic Rent until Tenant has been
fully reimbursed. -

16. . Leasehold Mortgages

16.] Tenant and every successor and assignee of Tenant, and any sublessee of all of
the Premises shall have the absolute and unconditional right, without Landlord?s Consent, from
time to time, to mortgage and finance and refinance its interest in this Lease and/or its leasehold
interest in the Premises, or any part or parts thereof, without limitation as to amount and as to
what the mortgage secures, under one or more leasehold mortgages (?Leasehold Mortgage?), and
the right to assign unconditionally, collaterally or otherwise, this Lease and any leasehold
interest as collateral security for such Leasehold Mortgage, and in connection therewith, to grant
and convey Tenant?s interest in the buildings, Improvements, fixtures and any building service
equipment on the Premises in such form as the holder of the Leasehold Mortgage determines.
All proceeds of any Leasehold Mortgage shall belong to Tenant.

For the purposes of this Article, the term ?mortgage? shall include mortgages, deeds of
trust, assignments of the sublessor interest, and all similar instruments, as well as security
interests, including security interests in personal property, and pledges and assignments of the
Tenant?s interest in this Lease, and modi?cations, replacements and consolidations of any of the
foregoing, and the term ?the Premises? shall include the Tenant?s leasehold interest in the Land
and Tenant?s interest in all buildings, Improvements, ?xtures and equipment thereon. The
following shall apply in connection with Leasehold Mortgages:

16.] 1f Tenant shall be in default in the observance or performance of any
covenant in this Lease, Landlord shall send written notice of such default to any 

30



mortgagee under a mortgage of Tenant's interest hereunder, or (ii) bene?ciary or trustee
under a deed of trust, in either case pursuant to a mortgage or deed of trust (herein
?mortgage?) granted by Tenant (herein such mortgagee, bene?ciary or trustee is referred
to as ?Bene?ciary? or ?Leasehold Mortgagee?); provided, however, that such notice shall
be required only if Landlord previously received written notice of, and a copy of, such
mortgage. Landlord?s notice to the Bene?ciary shall be given at its address as set forth in
the mortgage or as the Bene?ciary may request in a Writing delivered to Landlord. The
Bene?ciary shall have thirty (30) days after delivery of such written notice from
Landlord within which to cure or remove such default, provided that if such default
cannot be cured by the payment of money and, by reason of its character, cannot with
diligence be cured within such thirty (30) day period, if Bene?ciary shall commence
to cure such default and thereafter shall prosecute the curing thereof with
diligence, such thirty (30) day period automatically shall be extended until the ?rst to
occur of the expiration of such period as is necessary to complete the curing thereof with
diligence or the date on which Bene?ciary shall cease to prosecute such cure with
diligence, it being understood and agreed that in the event that the prosecution of such
cure by Bene?ciary shall require prosecution of legal proceedings (whether by way of
obtaining relief from any _stay or injunction entered in any insolvency proceeding
concerning Tenant, the commencement and prosecution of foreclosdre, receivership
proceedings or similar proceedings or otherwise), the diligent prosecution by Bene?ciary
of such proceedings shall be deemed the diligent prosecution of such cure to the end that
the time allowed herein for cure shall include such time as is necessary to diligently
prosecute any such proceedings to conclusion. Not less than ten (10) days prior to any
contemplated termination of this Lease, Landlord shall give Bene?ciary written notice or
its intention to terminate this Lease, provided that the giving of such notice shall neither
extend nor diminish the time within which any default is required to be cured pursuant to
this Section 16.1, and provided further that such notice shall be required only if Landlord
previously received written notice of, and a copy of, the Bene?ciary?s mortgage.
Notwithstanding any other provision of this Lease, Landlord shall not have any right
pursuant to this Lease or otherwise to terminate this Lease due to any default unless
Landlord shall have ?rst given written notice thereof to Bene?ciary (if such notice is
required pursuant to the immediately preceding sentence), and unless such Bene?ciary
given such notice shall have failed to cure or remove, or cause to be cured or removed,
such default within the time required by this Section 16.1.

16.2 Landlord will accept performance by the Bene?ciary, the subtenant under
any sublease 0r either of them of any covenant, agreement or obligation of Tenant
contained in this Lease with the same effect as though performed by Tenant.

[6.3 Every mortgage shall provide that Bene?ciary agrees to notify Landlord of
any default under any mortgage or instrument evidencing indebtedness in connection
with any mortgage and further shall provide that Landlord shall have the right (without
obligation), exercisable within the same period available to Tenant, mortgagor under such
mortgage or obiigor under such instrument of indebtedness, to cure such default on behalf
of Tenant or such mortgagor or obligor, provided that if such default cannot be cured by
the payment of money and, by reason of its character, cannot with diligence be cured
within such thirty (30) day period, if Landlord shall commence to cure such

31



 

default and thereafter shall prosecute the curing thereof with diligence, such period
automatically shall be extended until the ?rst to occur of the expiration of such period as
is necessary to complete the curing thereof with diligence or the date on which Landlord
shall cease to prosecute such cure with diligence, it being understood and agreed that in
the event that the prosecution of such cure by Landlord shall require prosecution of legal
proceedings (whether by way of obtaining relief from any stay or injunction entered in
any insolvency proceeding concerning Tenant, the commencement and prosecution of
eviction or otherwise), the diligent prosecution by Landlord of such proceedings shall be
deemed the diligent prosecution of such cure to the end that the time allowed herein for 
cure shall include such time as is necessary to diligently prosecute any such proceedings
to conclusion. Under no circumstances shall any mortgage encumber Landlord?s fee
interest or reversionary interest in either the Premises or the Improvements and the terms
of any mortgage shall expressly state that the fee interest in the Premises is not
encumbered thereby or does not otherwise secure any indebtedness of Tenant or such
mortgagor or obligor. Furthermore, any mortgage shall be made expressly subject to the
terms of this Lease, as affected by any Non-Disturbance Agreement entered into by
Landlord and the holder of a Leasehold Mortgage (a 

16.4 If this Lease shall be terminated for any reason by Landiord, or in the
event of the rejection or disaf?rmance of this Lease pursuant to any bankruptcy law or
other law affecting creditors' rights, Landlord will enter into a new lease of the Premises
created by this Lease with the Bene?ciary, or any party designated by the Bene?ciary,
not less than ten (10) nor more than thirty (30) days after the request of the Bene?ciary,
for the remainder of the term of this Lease, effective as of the date of such termination,
rejection or disaf?rmance, upon all the terms and provisions contained in this Lease
provided that the Bene?ciary makes a written request to Landlord for such new lease
within thirty (30) days after the effective date of such termination, rejection or
disaf?rmance, as the case may be, and such written request is accompanied by a copy of
such new lease, duly executed and acknowledged by the Bene?ciary or the party
designated by the Bene?ciary to be the Tenant thereunder, and the Bene?ciary cures all
defaults under this Lease and pays to Landlord all Basic Rent and Additional Rent which
would at the time of such execution and delivery be due and payable by Tenant under this
Lease but for such rejection, disa?irmance or termination. Any new lease made pursuant
to this Section 16.4 shall have the same priority with respect to other interests in the
Premises as this Lease and shall be accompanied by a conveyance of Landlord's interest,
if any, to the Improvements (free of any mortgage or other lien, charge or encumbrance
created or suffered to be created by Landlord) for a term of years equal in duration to the
term of the new lease but subject to the provisions of Article 27, as such Article appears
in such new lease. The provisions of this Section l6.4 shall survive the termination,
rejection or disaf?rmance of this Lease and shall continue in full effect thereafter to the
same extent as if this Section 16.4 were a separate and independent contract made by
Landlord, Tenant and the Bene?ciary and, from the effective date of such termination,
rejection or disaf?nnance of this Lease to the date of execution and delivery of such new
lease, the Bene?ciary may use and enjoy the leasehold estate created by this Lease
without hindrance by Landlord. -

32



16.5 Landlord shall have no rights in and to the rentals payable to Tenant under
any subleasebf all or any part of the Premises or the Improvements, which rentals may
be assigned by Tenant to the Bene?ciary.

16.6 No Bene?ciary shall become personally liable for the performance or
observation of any covenants or conditions to be performed or observed by Tenant unless
and until such Bene?ciary becomes the owner of Tenant?s interest hereunder upon the
exercise of any remedy provided for in any Leasehold Mortgage or enters into a new
lease with Landlord pursuant to Section 16.4 above. Thereafter, such Bene?ciary shall
be liable for (A) the performance and observance of such covenants and conditions only
so long as such Bene?ciary owns such interest or is the lessee under such new lease, and
(B) any defaults by such Bene?ciary occurring during the period it owned such interest or
was the lessee under such new lease.

16.7 Upon the reasonable request of any Bene?ciary, Landlord and Tenant
shall cooperate in including in this Lease by suitable amendment from time to time any
provision for the purpose of implementing the protective provisions contained in this
Lease for the bene?t of such Bene?ciary in allowing such Bene?ciary reasonable means
to protect or preserve the lien of its proposed Leasehold Mortgage on the occurrence of a
default under the terms of the Lease. Landlord and Tenant shall execute, deliver and
acknowledge any amendment reasonably necessary to affect any such requirement;
provided, however, that any such amendment shall not in any way affect the Term or
rental under this Lease nor otherwise in any material respect adversely affect any rights
of Landlord under this Lease or impose any lien on Landlord?s interest in the Premises.

16.8 Landlord agrees that the name of the Leasehold Mortgagee may be added
to the "Loss Payable Endorsement" of any and all insurance policies required to be
carried by Tenant hereunder. The proceeds from any insurance policies are to be held by
any Leasehold Mortgagee and distributed pursuant to the provisions of this Lease, but,
without modifying Tenant?s obligation to complete the Restoration as provided in Section
12.7, the Leasehold Mortgagee may reserve its rights to apply to the mortgage debt all, or
any part, of Tenant's share of such proceeds pursuant to such Leasehold Mortgage.

16.9 [Reserved]

16.10 Landlord shall, upon request, execute, acknowledge and deliver to each
Leasehold Mortgagee, an agreement, in form satisfactory to such Leasehold Mortgagee
and Landlord, between Landlord, Tenant and Leasehold Mortgagee, agreeing to all of the
provisions of this Section. 

16.11 The failure by any such Leasehold Mortgagee to exercise the right under
any provision of this Lease shall not be deemed a waiver of its right under any other
provision hereof.

16.12 The right of a Leasehold Mortgagee to foreclose a Leasehold Mortgage
and to sell or assign the lessee interest in this Lease is expressly recognized and shall

33

61453.3 

 

never be deemed a violation of any provision of this Lease (but shall be subject to all of
the terms and provisions ofthis Lease, including, without limitation, Article 20).

16.13 The provisions of this Article 16 are solely for the bene?t of the
Bene?ciary and Landlord and may be relied upon and shall be enforceable only by the
Beneficiary and Landlord. Neither the Bene?ciary nor any other holder or owner of the
indebtedness secured by any mortgage shall be liable upon the covenants, agreements or
obligations of Tenant contained in this Lease unless and until the Bene?ciary or such
holder or owner becomes the Tenant hereunder or takes possession of the Premises and
Improvements, provided, however, that notwithstanding such non-liability, Bene?ciary or
such holder or owner shall be entitled to assert in defense of any termination or attempted
termination of this Lease by Landlord any matter of law or fact that could be, but is not,
asserted by Tenant.

16.14 To the extent that any mortgagee of Tenant requires commercially
reasonable changes to Section 16 of this Lease, Landlord agrees to review such proposed
changes. if the same are deemed commercially reasonable by Landlord in its reasonable
discretion, and the same in Landlord?s reasonable opinion could not increase any
obligations of Landlord under this Lease, or otherwise expose Landlord to potential
liability or risk not currently contemplated by this Lease, then Landlord agrees to
cooperate with Tenant and its mortgagee to make such approved changes to this Lease.
The Landlord agrees to reasonably consider amendments to other provisions of this Lease
as proposed by Tenant?s mortgagee, so long as the other provisions and protections of
this paragraph apply to such proposed change. Additionally, Landlord?agrees to
reasonably cooperate with Tenant?s mortgagee to provide reasonable and relevant
information regarding Landlord and the Campus that is not otherwise considered
con?dential by Landlord.

l7. Conditional Limitations; Default Provisions

17.1 This Lease and the Initial Term and any Extension Terms are subject to
the limitation that, if at any time during the initial Term or any Extension Term:

Tenant shall fail to pay any Basic Rent or Additional Rent and
such failure shall continue for ten (10) days after notice to Tenant of such failure,
provided Landlord shall only have to give such notice twice in any twelve (12)
month period; 0r 

Tenant shall fail to observe or perform any other covenant,
condition, term or provision hereof and such failure shall continue for thirty (30)
days after notice to Tenant of such failure (provided that in the case of any such
default which cannot be cured by the payment of money and which, by reason of
its character, cannot be cured with diligence within such thirty (30) day period, if
Tenant shall commence to cure the same and thereafter prosecute the
curing thereof with diligence, such thirty (30) day period automatically shall be
extended until the first to occur of the expiration of such period as is necessary to
complete the curing thereof with diligence or the date on which Tenant, or any

34

6141518 

 

person entitled to act on behalf of Tenant pursuant to the provisions hereof, shall
cease to prosecute such cure with diligence, it being understood and agreed that in
the event that the prosecution of such cure by Tenant shall require prosecution of
legal proceedings, the diligent prosecution by Tenant of such proceedings shall
be deemed the diligent prosecution of such cure to the end that the time allowed
herein for cure shall include such time as is necessary to diligently prosecute any
such proceedings to conclusion; or 

Tenant shall voluntarily be adjudicated a bankrUpt or insolvent;
(ii) consent to the appointment of a receiver or trustee for itself or for any of the
Premises or Improvements; file a petition in bankruptcy, or a petition or
answer seeking reorganization under the Federal Bankruptcy Code, or a petition
seeking relief under any other debtor relief- law; or (iv) file a general assignment
for the bene?t of creditors; or

A court shall enter an order, judgment, or decree appointing,
with or without the voluntary consent of Tenant, a receiver or trustee for Tenant
or for the Premises or Improvements; or (ii) adjudicating "Tenant bankrupt or
approving a petition filed against Tenant which seeks reorganization of Tenant
under the Federal Bankruptcy Code or seeks relief under any judgment or debtor
relief law, and such order, judgment, or decree shall remain in force, undischarged
or unstayed, ninety (90) days after it is entered,

then upon the happening of any one or more of the aforementioned events of default, and at any
time thereafter, subject to the terms of this Article 17, Landlord shall have each and all as
Landlord elects in its sole discretion of the rights and remedies set forth below in this Article W,
as well as any other rights and remedies as may be available to Landlord at law or in equity or by
statute.

17.2 Landlord may terminate this Lease, by written notice to Tenant, without
any right by Tenant to reinstate its rights by?payment of Basic Rent or Additional Rent
due or other performance of the terms and conditions of this Lease. Upon such
termination Tenant shall immediately surrender possession of the Premises to
Landlord, and'(b) all right, title and interest of Tenant in the Improvements shall.
automatically cease and determine. Notwithstanding the foregoing to the contrary, it is
expressly understood and agreed that no failure of performance by Tenant under this
Lease, other than Tenant?s failure to make any of the payments required herein of
Tenant (a ?Payment Failure"), (ii) any breach by or failure of Tenant of any of its
obligations as set forth in Article 20 of this Lease, any breach by or failure of Tenant
of any of its obligations as set forth in Section 6.1 of this Lease, (iv) any breach by or
failure of Tenant of any of its obligations as set forth in Article 9 of this Lease, or any
default under Sections 17.1(c) or shall constitute an event of default by Tenant that
would give Landlord the right to terminate this Lease.

17.3 With or without terminating this Lease, as Landlord may elect, Landlord
may re-enter and repossess the Premises, or any part thereof, and lease the Premises to
any other person upon such terms as Landlord shall deem reasonable, for a term within or

35

Hildle

beyond the Term. Any such reletting prior to termination shall be for the account of
Tenant, and Tenant shall remain liable for the excess, if any of all Basic Rent,
Additional Rent and other sums which would be payable under this Lease by Tenant in
the absence of such expiration, termination or repossession, over (ii) the net proceeds, if
any, of any reletting effected for the account of Tenant, determined by deducting from the
gross proceeds of any such reletting all expenses incurred in connection with such
reletting of the Premises, as determined by Landlord, including, without limitation, the
following: (A) repossession costs; (B) attorneys? fees and expenses; (C) brokers?
commissions and advertising costs; (D) costs of alterations, improvements, repairs and
replacements; and (E) improvement allowances, free rent, and other concessions; and, 
all other costs and expenses, direct or indirect, incurred as a result of Tenant's breach of
this Lease. If the Premises are sublet by Tenant to others at the time of any default,
Landlord may, as Tenant's agent, collect rents due from any subtenant and apply such
rents to the Basic Rent, Additional Rent and other amounts due hereunder without in any
way affecting Tenant?s obligations to Landlord.

17.4 In the event of breach or threatened breach by Tenant of any provision of
this Lease, Landlord shall have the right of injunction in addition to every other right or
remedy granted in this Lease or now or hereafter existing at law or in equity or by statute.
Tenant?s obligations to Landlord for any default under this Lease shall be limited to
payment of the sums provided for herein, payment of the reasonable cost of procuring
substitute performance (as, for example, in the case of Tenant?s failure to perform one of
its repair obligations), and such prohibiting injunctive relief as a court of competent
jurisdiction may determine, but Tenant shall never have any liability or responsibility
whatever for any consequential or indirect damages, whether proximately or remotely
related to a breach or default by Tenant of any of the covenants and agreements of this
Lease. Landlord hereby waives all rights of distraint and distress and all other rights, title
and interest in and restrictions and encumbrances on all Tenant?s alterations, ?xtures,
Improvements, signs and all other property of Tenant.

18. Cumulative Remedies. Expenses, Waiver

18.] No right or remedy granted to Landlord or Tenant in this Lease is intended
to be exclusive of any other right or remedy granted in this Lease or available at law or
equity or by statute, but each shall be cumulative and in addition to every other right or
remedy granted in this Lease Or now or hereafter existing at law Or in equity or by statute.

18.2 The right of Landlord to recover from Tenant the amounts hereinabove
provided for shall survive the issuance of any order for possession or other cancellation
or termination hereof, and Tenant hereby expressly waives any defense that might be
predicated upon the issuance of such order for possession or other cancellation or
termination hereof.

18.3 The failure of Landlord to insist in any one or more cases upon the strict
performance of any of the terms, covenants, conditions, provisions or agreements of this
Lease or to exercise any right, privilege, option or remedy herein contained shall not be
construed as a waiver or a relinquishment for the future of any such term, covenant,

36

6161533 IZIHIIZ

Condition, provision, agreement, right, privilege, option or remedy. A receipt and
acceptance by Landlord of Basic Rent or Additional Rent, or the acceptance of
performance of anything required by this Lease to be performed, with knowledge of the
breach of any term, covenant, condition, provision or agreement of this Lease, shall not
be deemed a waiver of such breach, nor shall any such acceptance of Basic Rent or
Additional Rent in a lesser amount than is herein provided for (regardless of any
endorsement on any check, or any statement in any letter accompanying any payment of
rent) operate or be construed either as an accord and satisfaction or in any manner other -
than as payment on account of the earliest Basic Rent andfor Additional Rent then unpaid
by Tenant. No waiver by Landlord or Tenant of any term, covenant, condition, proviSiOn
or agreement of this Lease shall be deemed to have been made unless expressed in
writing and signed by the party to be charged. No waiver by Landlord of any breach by
Tenant of any obligations, agreements or covenants in this Lease shall be a waiver of any
subsequent breach or of any obligation, agreement or covenant, nor shall any forbearance
by Landlord to seek a remedy for any breach by Tenant be a waiver of any rights and
remedies with respect to such or any subsequent breach. No waiver by Tenant of any
breach by Landlord of any obligations, agreements or covenants in this Lease shall be a
waiver of any subSequent breach or of any obligation, agreement or covenant, nor shall
any forbearance by Tenant to seek a remedy for any breach by Landlord be a waiver of
any rights and remedies with respect to such or any subsequent breach.

19- 

19.1 Landlord covenants that so long as Tenant shall pay the Basic Rent and
Additional Rent and shall keep, observe and perform all other covenants of this Lease,
Tenant shall and may peaceably and quietly have, hold and enjoy the Premises for the
Initial Term and any Extension Terms free of interference from Landlord or those
claiming through or under Landlord. This covenant shall be construed as running with
the land to and against subSequent owners and successors in interest, and is not, nor shall
it operate or be construed as, a personal covenant of Landlord, except to the extent of
Landlord's interest in the Premises and only so long as such interest shall continue, and
thereafter this covenant shall be binding only upon such subsequent owners and
successors in interest, to the extent of their respective interests, as and when they shall
acquire the same, and only so long as they shall retain such interest.

19.2 Landlord?s Default. Landlord?s failure to perform or observe any of its
obligations under this Lease after a period of thirty (30) days or such additional time, if
any, as may be reasonably necessary to cure such failure and Landlord diligently
continues its efforts to cure such default, such additional time not to exceed an additional
thirty (30) days, after receiving notice from the Tenant, shall constitute a Landlord
Default, unless Landlord shall, within such period, commence and diligently
prosecute to completion the curing of such failure. Such notice shall give reasonable
detail as to the nature and extent of the failure and identify the Lease provisions
containing the obligations. Upon Landlord?s Default, Tenant may pursue any remedies

. given in this Lease or available at law or in equity.

37

lliidfll

20. Assignment. Mortgage. Subletting

20.1 Tenant shall not assign this Lease, or sublet all or any part of the Premises
or Improvements, without Landlord's prior written consent. Landlord shall not
unreasonably withhold, condition or delay its consent to any proposed assignment or
subletting, provided that there is no outstanding uncured default by Tenant under this
Lease. By way of example and without limitation, the parties agree it shall not be
unreasonable for Landlord to withhold consent if, as reasonably determined by Landlord:
the net worth of the proposed assignec is not at least equal to the greater of Tenant?s
net worth as of the date of this Lease or Tenant?s net worth at the time of the pr0posed
assignment; the proposed assignee or subtenant would use the Premises or
Improvements for a purpose or in a manner which is not in strict conformity with all of
the requirements of this Lease, including, without limitation, the Permitted Uses; the
business reputation or character of the proposed assignee or subtenant is not consistent
with the operation of the Campus as a ?rst class science and technology campus; or .
all or any portion of the Premises or improvements would become subject to additional or
different laws, regulations or requirements as a result of the 'use of the Premises or
improvements by the proposed assignee or subtenant or its presence at the Premises. For
the avoidance of doubt, Landlord hereby expressly consents to the subleasing of space at
the Premises in connection with Tenant?s operation of the Premises for the Permitted
Uses. All other-prospective subleases are subject to Landlord?s approval as provided in
this Lease. 

20.2 Tenant's request for consent to any proposed assignment or subletting
shall be in writing and shall contain the following information: the name, address, and
description of the business of the proposed assignee or subtenant; the most recent I
?nancial statement of the proposed assignee or subtenant and other evidence of ?nancial
responsibility; a description of the intended use of the Premises and improvements by
the pr0posed assignee or subtenant; and the terms and conditions of the proposed
assignment or subletting. Landlord shall grant or refuse consent to the proposed sublease
or assignment within thirty (30) days after Landlord?s receipt of Tenant?s request for
consent (including the information set forth above). Any consent granted by Landlord
under this Article 20 shall not constitute a waiver of strict future compliance by Tenant
with the provisions of this Article 20 or a release of Tenant from the full performance by
Tenant of any of the terms, covenants or conditions contained in this Lease. The
acceptance by Landlord of the payment of Basic Rent or Additional Rent from any
person following any transfer prohibited by this Article 20, shall not be deemed consent
by Landlord to any such transfer, nor shall such acceptance constitute a waiver of any of
the rights or remedies of Landlord.

Each sublease entered into by Tenant shall contain provisions, in form and substance
acceptable to Landlord, pursuant to which the subtenant agrees that the sublease is
subject and subordinate to this Lease and all amendments and modi?cations and renewals
of this Lease; in the event any person, ?rm corporation or other entity (including
Landlord) acquires Tenant?s interest in the Premises, the subtenant shall, upon request,
attorn to and become the tenant of such person, ?rm, corporation or other entity upon the
same terms and conditions as are set forth in this Lease for the balance of the Term; 

'33

.6141538 mull:

no such person, ?rm, corporation or other entity will be liable for the acts or omissions of
Tenant as sublessor under the sublease; the subtenant will give Landlord not-ice and
opportunity to cure any default by Tenant as landlord under the sublease, prior to
exercising any remediesby reason of such default; requiring such subtenant to at all
times comply with the DNREC Requirements.

20.3 No assignment of this Lease or sublease of the Premises shall release or
relieve Tenant of its liabilities and obligations under this Lease. Each assignee of
Tenant's interest under this Lease shall assume and be deemed to have assumed this
Lease and shall be and remain liable jointly and severally with Tenant for all payments
and for the due perfonnance of all terms, covenants and conditions herein contained on
Tenant's part to be observed and performed. No assignment shall be binding upon
Landlord unless the assignee shall deliver to Landlord an instrument in form and
substance satisfactory to Landlord containing a? covenant of assumption by the assignee,
but the failure or refusal of an assignee to execute and deliver the same shall not release
assignee from its liability as set forth in this Section.

20.4 The prohibition on assignments and transfers contained in Section 20.1
shall apply not only to a voluntary assignment or transfer of this Lease, but also to the
following which, for purposes of this Article, shall be deemed an assignment: any
transfer or change in control of Tenant or any Controlling Owner, whether by Operation
of law or otherwise, including, without limitation, any merger, consolidation,
reorganization, liquidation, dissolution or any change in the ownership of a controlling
percentage of the equity interests in Tenant or any Controlling Owner, whether in a single
transaction or a series of transactions; and any transfer of Tenant's interest in this
Lease by levy or sale on execution, or other legal process, or by operation of law, and any
transfer in bankruptcy or insolvency, or under any other compulsory procedure or order
of court. For purposes of this Section, 3 ?Controlling Owner? shall mean any one or-
more persons or entities which hold, individually or collectively, directly or indirectly
through one or more intermediate persons or entities, a controlling percentage of the
equity interests in Tenant.

20.5 Anything in this Section to the contrary notwithstanding, Tenant may
assign its interest in this Lease to any newly formed affiliated entity. in which Tenant is
the manager, majority member or general partner, in each instance with control of the
day-to?day operations of such entity. Any assignment to a newly formed af?liated entity
not otherwise in compliance with the foregoing shall require Landlord?s prior written
consent, not to be unreasonably withheld.

21. Permitted Contests

21.] Tenant shall not be required, nor shall Landlord have the right, to pay,
discharge or remove any tax, assessment, levy, fee, rent, charge, lien or encumbrance, or
to comply with any law, ordinance, order, rule, regulation or other requirement applicable
to the Premises, the Improvements or the use thereof, as long as Tenant, at its own cost
and expense, shall diligently and in good faith contest the existence, amount or validity
thereof by appropriate proceedings which shall prevent the collection of or other

39



 

realization upon the tax, assessment, levy, fee, rent, charge, lien or encumbrance so
contested, and which also shall prevent the sale, forfeiture or loss of the Premises, the
Improvements or any Basic Rent or Additional Rent and which shall not affect the
payment of any Basic Rent or Additional Rent; provided that such contest shall not
subject Landlord to the risk of any civil or criminal liability. Exercise or continued
exercise of the rights conferred upon Tenant in this Article 21 shall be conditioned on
Tenant's giving such reasonable security as may be demanded by Landlord to insure
ultimate payment of such tax, assessment, levy, fee, rent, charge, lien, or encumbrance
and compliance with law, ordinance, order, rule, regulation or other requirement and to
prevent any sale or forfeiture of the Premises, the Improvements, any Basic Rent or
Additional Rent by reason of such nonpayment or noncompliance. Through exercise of
the rights conferred upon Tenant in this Article 21 Tenant undertakes to indemnify and
to save harmless Landlord from and against any and all liabilities, costs, fees and
expenses which may arise out of or in connection with any contest permitted herein
and/or Tenant's failure to pay and discharge any item as to which such contest
relates.

21.2 Landlord shall have the right, but shall be under no obligation, to engage
and participate (either alone or with Tenant) in the contests permitted in this Article 21
provided that such engagement or participation shall be at its sole cost and expense.

22. Estonoel Certi?cates

22.1 Landlord and Tenant agree at any time and from time to time, upon not
less than ?fteen (15) days' prior request by either, to execute, acknowledge and deliver to
the party requesting the same a statement in writing, certifying that this Lease is
unmodi?ed and is in full force and effect (or if there have been modifications, that this
Lease is in full effect as modi?ed, and setting forth such modi?cations), the dates to
which Basic Rent and Additional Rent have been paid, and whether or not to the
knowledge of the signer of such statement the party requesting the same is in default in
keeping, observing or performing any term, covenant, agreement, provision, condition or
limitation contained in this Lease (and, if such party shall be in default, specifying each
such default of which the signer may have knowledge), it being intended that any such
statement delivered pursuant to this Article may be relied upon by any prospective
purchaser or prospective mortgagee of the Premises or of Tenant?s interest under this
Lease, or any assignee of any mortgagee.

23. Notices Demands and Other Instruments

 

23.1 All notices, offers, consents, demands and other communications required
or permitted pursuant to this Lease shall be in writing and shall be validly given by hand
delivery or by commercial overnight courier that guarantees next day delivery and
provides a receipt, -

40

6Nl53311?4?2

 

if to Landlord, addressed to:

1743 Holdings, LLC

University of Delaware

I24 Hullihen Hall

Newark, DE 19716

Arm: Of?ce of General Counsel

with a required copy addressed to:

Saul Ewing LLP

222 Delaware Avenue

Wilmington, DE 19301

Arm: William E. Manning, Esquire
and

if to Tenant, addressed to:

The Data Centers, LLC .
1554 Paoli Pike, Suite 325
West Chester, PA 19380

Attn: Earl Eugene Kern, CEO

. with a required copy addressed to:

Michael C. McBratnie, Esquire
Fox LLP

747 Constitution Drive, Suite 100
PO. Box 673

Exton, PA 19341-0673

23.2 Such notices, offers, consents, demands and other Communications shall
be deemed to have been given upon receipt (or refusal by the intended recipient to accept
delivery).

23.3 Landlord and Tenant each may from time to time Specify, by giving
?fteen (15) days' advance notice to the other party, any other address in the United
States as its address for purposes of this Lease and (ii) any other person or entity that is to
receive copies of communications hereunder.

24. Reserved. 
25. No Merger

25.1 For so long as any mortgage (within the contemplation of Section 
shall remain in effect, there shall be no merger of this Lease or of the leasehold estate
created herein with the fee estate in the Premises because the same person acquires or

41



holds, directly or indirectly, this Lease or the leasehold estate hereby created or any
interest herein or in such leasehold estate as well as the fee estate in the Premises or any
interest in such fee estate.

25.2 Nothing contained in Section 25.] shall be construed as or be effective to
prevent the extinguishment of the leasehold estate created herein or any interests created
in or upon such leasehold estate by reason of the exercise, by Landlord, of its remedy of
termination.

26. Attempted Regglation

26.1 This Lease shall not be affected by any laws, ordinances or regulations,

whether federal, state, county, city, municipal or otherwise, which may be enacted or

become effective from and after the date of this Lease affecting or regulating or

attempting to affect or regulate the rents herein reserved or continuing in occupancy by

Tenant or any subtenants or assignees of Tenant's interest in the Premises beyond the
dates of termination of their respective leases, including any extensions, or otherwise.

27. 

27.] Upon expiration or earlier termination of this Lease, Tenant shall
peaceably leave and surrender, in the condition required in this Lease, the Premises,
including any and all easements, licenses and reversionary or other rights theretofore
acquired by Tenant over or in connection with any property adjacent to the Premises, as
well as all Improvements (with the exception only of movable trade ?xtures, furniture,
furnishings, equipment or other personal property owned by Tenant or its subtenants) and
any maintenance records, plans, permits, warranties, and service contracts, if any, with
respect to the Improvements then in Tenant?s possession. Upon expiration or earlier
termination of this Lease, all Improvements shall become the absolute property of
Landlord. -

23. Severability Binding Effect

28.] Each and every provision of this Lease shall separate and be independent,
and the breach of any provision by a party shall not discharge or relieve the non-
breaching party from its obligation to observe or perform any provision or covenant
hereof. If any provision hereof or the application thereof to any person or circumstance
shall to any extent be invalid or unenforceable, the remaining provisions hereof, or the
application of such provision to persons or circumstances other than those as to which it
is invalid or unenforceable, shall not be affected thereby, and each provision hereof shall
be valid and shall be enforceable to the extent permitted by law. All provisions contained
in this Lease shall be binding upon, inure to the bene?t of, and be enforceable by, the
respective successors and assigns of Landlord and Tenant to the same extent as if each
successor and assign were named as a party hereto.

42

8 Immz

 

29. Recording

29.! At Tenant?s request, a duly executed memorandum of this Lease, in form
reasonably acceptable to both Landlord and Tenant, shall be recorded at the Office of the
Recorder of Deeds in and for New Castle County, Delaware.

30. Captions and Table of Contents

30.] The table of contents and captions to the various Articles of this Lease
have been inserted for ease of reference only and shall not to any extent be considered in
the interpretation or construction hereof.

3] . Entire Agreement; Relationship of Parties

31.] Except only as provided in other written instruments executed by Landlord
and Tenant, this Lease sets forth all of the promises, covenants, conditions and
understandings between Landlord and Tenant with respect to the subject matter hereof
and supersedes all prior and contemporaneous agreements, Understandings, inducements
and conditions, whether oral or written, with respect to such subject matter.

31.2 Nothing in this Lease nor the fact that there are or hereafter may be other
agreements between Landlord and Tenant shall be deemed to create or to have created
any relationship of partners, joint venturers or other relationship except as expressly set
forth in this Lease or in such other agreements, if any.

32. Governing Law

32.] in all respects, this Lease shall be construed and interpreted in accordance
with Delaware law, without regard to principles of con?icts of laws.

33. Transfer by Landlord

33.1 All references to the f?Landlord? herein mean the owner of the fee simple
title to, or the fee mortgagee then in possession of, the Premises so that in the event of
any sale or transfer of the fee title to the Premises, the former Landlord shall be entirely
released and discharged from any and all further liability and obligations of Landlord
hereunder. Landlord shall be entitled to transfer'and assign this Lease or Landlord?s
interest in the Premises and the Improvements (subject to this Ground Lease) without the
consent of Tenant. From and after the transfer by Landlord or such successive holder of
its interest in the Premises, Tenant shall look solely to the successor for the performance
of Landlord?s obligations hereunder arising thereafter.

34. Countegparts

34.1 This Lease may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one and the same
instrument.

43

6 4i533l2i'14i'12

35. Enforcement; Prevailing Party Entitled-to Costs

35.1 If any party defaults under this Lease, the prevailing party shall be entitled

to recover all reasonable fees and costs incurred in pursuing its remedies under this

Lease, including but not limited to arbitration fees, attorneys? fees, court costs, and expert

witness fees, all in addition to any other remedies or damages to which the non-defaulting

party may be entitled. The term ?prevailing party,? as used herein, shall include without

limitation, a party who obtains legal counsel and brings action against the other party by
reason of the other party?s breach or default and obtains substantially the relief sought,

whether by compromise, settlement, orjudgment after all rights of appeal have expired or

been exhausted.

36. Waiver of Jury Trial

36.1 Each party hereto irrevocably waives any and all rights it may have to
demand a trial by jury for any action, proceeding or counterclaim arising out of or in any
way related to this Lease or the relationship of the parties. This waiver extends to any
and all rights to demand atrial by jury arising from any source, including but not limited
to, the Constitution of the United States, the Constitution of any state, common law or
any applicable statute or regulation. Each party hereby acknowledges that it is knowingly
and voluntarily waiving the right to demand trial by jury.

37. No Broker

37.1 Landlord and Tenant represent and warrant to the other that neither has
engaged, nor employed, nor dealt with any broker in connection with this Lease.

38. Time of the Essence

38.] The parties shall conduct themselves in a manner consistent with the fact
that time is of the essence.

39. Survival of Obligations

39.1 All obligations hereunder not fully performed as of the expiration or
earlier termination of the Term shall survive the eXpimtion or earlier termination of the
Term, including without limitation, all indemnities and obligations for payment of
Basic Rent, Additional Rent and other expenses and charges required to be paid

I hereunder by Tenant for the period prior to expiration or earlier termination of the Term
of this Lease, and Landlord?s indemni?cation obligations contained in Section 6.7 of
this Lease.

40. mm

40.1 This Lease may not be changed orally, but only by agreement in writing
executed by the party against whom the change, modification or discharge is sought to be
enforced.

44

EIJHHZ

 

Male?ure-

4l.l The time for the performance of any act required to be done by either
party shall be extended by a period equal to any delay caused by or resulting from act of
God, war, civil commotion, ?re, casualty, labor dif?culties, shortages of labor or
materials or equipment, governmental regulation, act or default of the other party, or
other causes beyond such party?s reasonable control (which shall not, however, include
the availability of funds), whether such time be designated by a ?xed date, a ?xed time or
otherwise. However, the foregoing events shall not excuse either party from making any
payments to the other which shall be due under this lease.

42. Landlord?s ROF ?ghts Upon a Permitted Transfer of Tenant?s interest Under
new

42.1 Notwithstanding the provisions of Article 20, from and alter the date
hereof and during the Term, Landlord shall have the right of ?rst refusal and Tenant shall
not sell, transfer or otherwise dispose of or convey all or part of Tenant?s interest in the
Premises to any third party until and unless Tenant shall have obtained a bona ?de offer
therefor (the ?Offer?), delivered written notice to Landlord, which notice shall contain the
name of the offeror, the address of the offeror, all of the terms and conditions of the

Offer, a true and accurate copy of the Offer and offered to sell, transfer or otherwise
dispose of such interest to Landlord at the same price and, except as hereafter provided,
upon the same terms and conditions contained in the Offer and Landlord has not elected
to exercise its right of ?rst refusal provided herein.

If Landlord shall either deliver written notice of rejection of the
Offer to Tenant or fail to deliver written notice of acceptance of the Offer within
thirty (30) days after the date of receipt of Tenant?s notice, Tenant?s interest in the
Premises may, during the one hundred eighty (180) days thereafter, be sold,
transferred or otherwise diSposed of pursuant to the original o?'eror at the same
price and upon substantially the same terms and conditions contained in the Offer
as disclosed in writing to Landlord.

In the event Landlord rejects the Offer or fails to accept the Offer,
this Lease and all of its terms and conditions (including this right of ?rst refusal)
shall nevertheless remain in full force and effect and Tenant and any purchaser or
purchasers of the Premises shall be bound thereby.

Failure of Landlord to exercise this right of ?rst refusal on one or
more occasions shall not affect Landlord?s right to exercise it on any subsequent
occasion. Any sale or transfer of the Premises, or any part thereof, other than in
strict compliance with the terms of this Section shall be null and void and of no
effect as to Landlord, and Landlord shall be entitled to purchase the Premises
from the purchaser upon the same terms and conditions and at the same price
Speci?ed in the Offer, provided Landlord noti?es Tenant of its election thirty (30)
days after receipt of notice that complies with the requirements hereof. Payment
of rental to such purchaser or otherwise treating such purchaser as Tenant shall

45

6141515 12m?!

not be deemed to be a waiver of any right of ?rst refusal or any other right or
privilege of Landlord and shall not create an estoppel with respect thereto.

Any sale or transfer of Tenant?s interest in the Premises, or any
part thereof shall be expressly made subject to all of the terms, covenants and
conditions of this Lease. In the event the Offer provides for the sale and purchase
of Tenant?s interest in the Premises and other property related to the Premises,
Landlord shall only be required to purchase all the Premises in the event it desires
to exercise its right of ?rst refusal hereunder.

in the event Landlord exercises its right of first refusal then,
notwithstanding the terms of the Offer Tenant shall convey title to the
improvements by warranty deed reasonably approved by Landlord and the title
company; (ii) title to the Improvements shall be free and clear of any liens and
encumbrances except the lien for current taxes which are not delinquent at the
time of closing and such other exceptions to title as existed on the date hereof
and/or were approved by Landlord thereafter; and title to the Premises shall
otherwise comply with the terms of this Lease as they pertain to condition of title.
Upon such election by Landlord, Tenant and Landlord agree to act in good faith
to consurnmate a purchase agreement for the property described in the Offer
incorporating the express terms of the Offer and other customary terms and
provisions for similar transactions of similar industrial property located in the
same geographic area as the Premises.

43. Employment.

43.1 Tenant shall use its best efforts to employ interns and graduates of the
University at its facility and work with the University?s College programs on a mutually
bene?cial basis. This includes, but is not limited to, the College of Engineering?s
Computer Science Program. 

44. Fill Dirt.

44.] Landlord shall have the right (but not the obligation) from time to time
through August 15, 2013, or sooner if Tenant?s material construction activities begin on
the Premises, to remove ?ll dirt currently located on the Premises as generally shown on
the Plan attached hereto as Exhibit E. Until August 15, 2013, or sooner if Tenant?s
material construction activities begin on the Premises, Tenant shall not remove or utilize
the said ?ll dirt absent Landlord?s prior written consent.

46



IN WITNESS WHEREOF, AND INTENDING TO BE LEGALLY BOUND, Landlord
and Tenant have caused this Lease to be executed, sealed and delivered by their duty authorized

representatives, as of the day and year ?rst set forth above.

614153311!an

1743 HOLDINGS, LLC

By:  (Seal)

Name: Scott" 
Title: Presaden?-

THE DATA CENTERS, LLC 

Digital}; sigruzd h1- c-Inl Kan-a
DR: ?11215an lam. 0:11!- Da'u Cenun. LLC 09.

Iw?mnehmm?l ?Us



Name: Earl Eugene Kern
Title: Chief Executive Of?cer

'47

EXHIBIT 

Premises

?41538 HENRI

 

I .



 

ADVANCEII mm 
radical. BOUNDARY
43' - 45 ACRES

D11 

 

49

514IS3.8 I?Z??ll

EXHIBIT 

Tenant?s Infrastructure Improvements

Tenant shall, concurrent with the construction of its initial building on the Premises, at Tenant?s
cost and expense, undertake and complete the following improvements to the Campus. All
undertakings by Tenant are subject to Landlord?s reasonable approval of all plans and
speci?cations. All such work is to be completed in a reasonable timeframe to meet the
requirements and needs of both Landlord and Tenant.

1.

Relocation or new installation of an electrical substation elsewhere on the Campus at a
location mutually agreedto by Tenant, Landlord, and the City of Newark, the scope of
which shall be determined in good faith under separate agreement. The sub-station will
be designed and engineered to meet the long-term needs of a fully developed Campus, as
determined between the City of Newark and Landlord, and will be constructed in phases
to meet the load growth requirements of the Campus. The' substation will be constructed
in compliance with the Landlord?s design standards of the Campus and state and federal
regulations.

Tenant, at Tenant?s expense, shall deliver to the Landlord?s manhole at South College
Avenue suf?cient underground communication facilities of fiber optics (3 ?ber counts of
144) to meet the needs of the Campus? anticipated development, as reasonably
determined by Landlord.

Tenant, United Water Company and Landlord shall design a water distribution system for
the Premises and the Campus, the installation of the Tenant?s requirements which shall be
at no cost to Landlord.

Tenant, at Tenant?s expense, will extend and tie into the existing sewer manhole with a
gravity feed along road #3 to the Premises. The size shall be reasonably determined by
Landlord and Tenant.

Tenant or its contractor, at the expense of Tenant, shall share in the cost of extending
roadways 2 and 3. Landlord shall invoice Tenant from time to time for such costs as they
are incurred, the same to be accompanied by reasonable ?back up? for the costs._ Invoices
shall be due and owing within thirty (30) days. Tenant shall construct the east-west
access road and infrastructure from South College Avenue (Rte. 896) to the Premises in
compliance with the master plan prepared by Landlord. Attached hereto as Exhibit is a
schematic showing the afOresaid roads. This Paragraph 5 is subject to the operation an

effect of Section 1.4 above. 





EXHIBIT 

Environmental Indemnity and Release Agreement 

ENVIRONMENTAL INDEMNITY AND RELEASE AGREEMENT

THIS EN RONMENTAL INDEMNITY AGREEMENT (the ?Agreement?) is
made as of the day of 32992,, E. 2012 (the ?Effective Date?) by the UNIVERSITY OF
DELAWARE, a Delaware corporation (?Guarantor?) and 1743 HOLDINGS, LLC, a
Delaware limited liability company (?Landlord?) (iointly and severally, ?Indemnitor?), with an
address of 124 Hullihen Hall, Newark, Delaware 19716 in favor of THE DATA CENTERS,
LLC, a Delaware limited liability company, (?Indemnitee?), with an address of 1554 Paoli Pike,
Suite 325, West Chester, 13980 (collectively the 

45. RECITALS

WHEREAS Indemnitor entered into a Brownfields Development Agreement
with the Delaware Department of Natural Resources and
Environmental Control dated October 27, 2009 for the Newark, Delaware
assembly plant and adjacent MOPAR parts facility encompassing tax parcel numbers 18-039.00- .
002 and and approximately 270.8 acres 

WHEREAS lndemnitee shall lease approximately  acres of the Site from Landlord
(the ?Property?), pursuant to a Lease Agreement of even date herewith (?Lease?). Guarantor has
agreed to guaranty certain of Landlord?s obligations under the Lease. The Property description
is attached as Exhibit A.

WHEREAS as a condition to negotiating the Lease and conducting such due diligence
with respect to environmental matters related to the Site, lndemnitor shall indemnify Indemnitee
with respect to presently existing (as used herein, ?presently existing? means as of the Effective
Date) Contamination at, under or upon or that is migrating ?om the Site or into the environment.

NOW THEREFORE, in consideration of the above and other valuable consideration,
the receipt and suf?ciency of which are hereby and intending to be legally bound,
the Indemnitor hereby represents, warrants, and agrees as follows:

De?nitions. Terms not de?ned shall have the meaning as under the Lease. For purposes of this
Agreement, the following terms shall have the following meanings: -

?Agents? means the following and their respective successors and assigns: with respect to
Indemnitor or lndemnitee, the agents, of?cers, partners, employees, contractors, invitees and
licensees of such party; and (ii) in addition, with respect to Indemnitee, Indemnitee?s subtenants
and suppliers and their respective agents, employees, contractors, and invitees

?Environmental Law? means all federal, state and local laws, including principles of common
law, regulations, statutes, codes, rules, resolutions, directives, orders, executive orders, consent
orders, guidance from regulatory agencies, policy statements, judicial decrees, standards,
permits, licenses and ordinances, or any judicial or adminisn?ative interpretation of any of the
foregoing, pertaining to the protection of land, water, air, health, safety or the environment,
including but notlimited to the federal Comprehensive Environmental Response, Compensation

Gidl?? 

 

and Liability Act of 1980, as amended by the Superfund Amendment and Reauthorization Act of
1986, 42 U.S.C. ??9601 et seq., and as may be further amended from time to time 
whether now or in the future enacted, promulgated or issued. Environmental Law sha1l also
include the Brown?elds Agreement. 

.?Regulated Substances? includes any substances, chemicals, materials or elements that are
prohibited, limited, regulated or governed by Environmental Law, or any other substances,
chemicals, materials or elements: de?ned as ?hazardous substance? under and
regulations promulgated thereunder; (ii) de?ned as a ?regulated substance? within the meaning
of Subtitle I of the Resource Conservation and Recovery Act (42 U.S.C. 6991-6991), and
regulations promulgated thereunder; designated as a ?hazardous substance? pursuant to
Section 311 of the Clean Water Act (33 U.S.C. 1321), or listed pursuant to Section 307 of the
Clean Water Act (33 U.S.C. 1317; (iv) defined as ?hazardous?, ?toxic?, or otherwise regulated,
under Environmental Law adopted by the State of Delaware, or its agencies or political
subdivisions including, DelaWare?s Hazardous Substance Cleanup Act, 7 D_el. Chapter 91; 
petroleum, petroleum products or derivatives or constituents thereof; (vi) asbestos or asbestos-
containing materials; (vii) urea formaldehyde foam insulation or urea formaldehyde foam
insulation-containing materials; lead based paint or lead based paint?containing materials;
(ix) biphenyls or biphenyl?Containing materials; radon or
radon?containing or producing materials; (xi) the presence of which requires noti?cation,
investigation or remediation under Environmental Law or common law; causes or threatens to
cause a nuisance or tresPass upon the Property or to adjacent properties, poses or threatens to
pose a hazard to the health or safety of persons on or about the Property; or (xi) by any laws of
any government authority require special handling in its collection, storage, treatment, or
disposal. 

?Contamination? means the presence of Regulated Substances (whether know or unknown) as
of the date hereof. .

1. Representation and Warranties

(3) lndemnitor has the authority to enter into this Agreement, which is not a
violation of the Brown?elds Agreement.

2. Indemni?cation.

Indemnitor covenants and agrees, at its sole cost and expense, to
indemnify, defend, protect, save and hold harmless lndemnitee and its Agents against and from
any and all Environmental Damages (as de?ned in subsection below), which may at any time
be imposed upon, threatened against, incurred by or asserted or awarded against lndemnitee or
its Agents and arising from or out of:

lndemnitor?s or its Agent?s failure to comply with any of the
provisions of this Agreement;

61-11533 121140012

(ii) any presently existing, knOwn or unknown, Contamination on, in
or under, or migrating from, all or any portion of the Site, regardless of any non-negligent acts or
omissions of lndemnitee or lndemnitee?s Agents with respect thereto; or

any violation of or alleged violation of any Environmental Law at
the Site relating to or in connection with presently existing, known or unknown, Contamination;
and

(iv) the enforcement of this Agreement.

For the purposes of this Agreement, ?Environmental Damages? shall
mean all claims, costs and expenses (including construction costs), judgments, damages, losses,
penalties, ?nes, liabilities, including strict liability, encumbrances, liens, costs and expenses of
investigation and defense of any claim, whether or not such claim is ultimately defeated, and of
any good faith settlement, of whatever kind or nature, contingent or otherwise, matured or
unmatured, foreseeable or unforcseeable, including reasonable attorneys? and consultants? fees
and disbursements and any out?of?pocket costs, whether incurred by Indemnitee or payable by
Indemnitee to a third party.

(0) after the receipt by lndemnitee of written notice of any demand
or claim or the commencement of any action, suit or proceeding relating to presently existing,
known or unknown, Contamination in connection with the Site, Indemnitee shall notify the
lndemnitor thereof in writing. The failure by lndemnitee to provide such notice shall
not relieve the lndemnitor of any liability or indemnity obligation to lndemnitee or its Agents
hereunder except to the extent lndemnitOr is actually prejudiced by such failure to give prompt
notice.

This provisions of this Agreement shall survive the termination or earlier
expiration of the Lease.

3. lndemnitor?s Obligation to pgrforrn Environmental Work

The Indemnitee shall have the right to conduct such work required by
Environmental Law to address any presently existing, known or unknown, Contamination on,
in, under or migrating from the Property or (ii) threatening or migrating onto the Property from
the Site (?Corrective Work?). lndemnitee shall notify the lndemnitor of it desire to either 
conduct such Corrective Work in accordance with all applicable laws and, in such an event, the
lndemnitor shall reimburse Indemnitee for all costs related to conducting such Corrective Work,
or (ii) request the lndemnitor to complete such Corrective Work at lndemnitor-?5 sole cost and
expense.

If lndemnitee performs the Corrective Work, Indemnitee shall 
commence and diligently perform the Corrective Work in compliance with all applicable laws,
shall keep lndemnitor reasonably informed of its plans to perform the Corrective Work and
provide lndemnitor with a reasonable opportunity to review and comment upon'any proposed
Corrective Work prior to submission to any governmental authority.

-3-

614153 ll 

 If lndemnitor performs the Corrective Work, lndemnitor shall 
commence and diligently perform such Corrective Work in compliance with all applicable laws
and Indemnitor shall use commercially reasonable efforts to perform such Corrective Work in
such a manner that will minimize any impact on lndemnitee and (ii) any interference on
lndemnitee?s use and enjoyment of the Property. lndemnitor shall keep lndemnitee reasonably
informed of its plans to perform the Corrective Work, provide Indemnitee with a reasonable
opportunity to review and comment upon any proposed Corrective Work prior to submission to
any governmental authority, and provide reasonable advance notice of the need for access to the
Property to perform the Corrective Work.

lndemnitor shall take all responsibility as generator for any Regulated
Substances generated by performance of any Corrective Work.

4. Release of Liabiligg. lndemnitor hereby waives, releases and discharges forever
lndemnitee from all present and ?iture claims, demands, suits, legal and administrative
proceedings and from all liability for damages, losses, costs, liabilities, fees and expenses,
present and future, arising out of any presently existing Contamination on, in, under or migrating
from all or any portion of the Site, except to the extent any negligent act or omission by
lndemnitee causes, contributes or exacerbates any such Contamination.

5. Notices. All notices, demands, requests, consents, approvals and other
communications required or permitted hereunder must be in writing and will be effective upon
receipt if delivered personally, or if sent by facsimile transmission with continuation of delivery,
or by nationally recognized overnight courier service, to the address of lndemnitee or lndemnitor
set forth above or to such other address as lndemnitee or Indemnitor may give to the other in
writing for such purpose. Notices shall be provided to the following individuals:

On behalf of lndemnitor: University of Delaware
124 Hullihen Hall
Newark, DE
Attn:
Fax: (302)

With a cepy to: Laure B. Ergi'n, Esq. 
Assistant General Counsel
124 Hullihen Hall
Newark, DE
Fax (302)

On behalf of lndemnitee: The Data Centers, LLC
1554 Paol?i Pike, Suite 325
West Chester, PA 19380
Attn: Earl Eugene Kern, CEO

with a required copy addressed to:

51453.8 131431012

 

Michael C. McBratnie, Esquire
Fox LLP
747 C0nstitution Drive, Suite 100
PO. Box 673

Exton, PA 19341?0673

6. Preservation of Rights. No delay or omission on lndemnitee?s part to exercise
any right or power arising hereunder will impair any such'right or power or be considered a
waiver of any such right or power, nor will lndemnitee?s action or inaction impair any such right
or power, except to the extent lndemnitee?s failure to immediately notify lndemnitor of any
claim pursuant to 2(0) of this Agreement has actually and substantially prejudiced lndemnitor
hereunder. lndemnitee?s rights and remedies hereunder are cumulative and not exclusive of any
other rights or remedies which lndemnitee may have under other agreements, at law or in equity.
Any indemni?cation obligations or liabilities contained in this Agreement shall not be affected
by any knowledge of, or investigations performed by, lndemnitee except to the extent that such
actions by lndemnitee are in violation of Environmental Law and such actions cause, contribute
to or exacerbate any Contamination. Any one or more persons or entities comprising
lndemnitor, or any other party liable upon or in respect of this Agreement, may be released
without affecting the liability of any party not so released.

7. Entire Agreement; Amendment; Severabiligg. This Agreement contains the

entire agreement between the Parties respecting the matters set forth herein and supersedes all
prior agreements, whether written or oral, between the Parties respecting such matters; provided
that Landlord?s covenants and obligations pursuant to Section 6.7 of the Lease shall continue
pursuant to their terms and shall be cumulative of any and all of lndemnitor?s covenants and
obligations hereunder. Any amendments or modi?cations hereto, in order to be effective, shall be
in writing and executed by the parties hereto. A determination that any provision of this
Agreement is unenforceable or invalid shall not affect the enforceability or validity of any other
provision, and any determination that the application of any provision of this Agreement to any
person or circumstance is illegal or unenforceable shall not affect the enforceability or validity of
such provision as it may apply to any other person or circumstances.

3. Successors and Assigns; Survival. This Agreement will be binding upon the
lndemnitor and its heirs, administrators, successors and assigns, and will inure to the bene?t of
Indemnitee and its and assigns, as well as to Indemnitee?s subtenants; provided,
however, that the lndemnitor may not aSSign this Agreement in whole or in part without
lndemnitee?s prior written consent. lndemnitor?s obligations in favor of lndemnitee under this
Agreement shall survive the expiration or earlier termination of the Lease.

9. Interpretation. in this Agreement, unless lndemnitee and the lndemnitor
otherwise agree in writing, the singular includes the plural and the plural the singular; references
to statutes are to be construed as including all statutory provisions consolidating, amending or 
replacing the statute referred to; the word ?or? shall be deemed to include ?and/or?, the words
?including?, ?includes? and ?include? shall be deemed to be followed by the words ?without
limitation?; and references to sections or exhibits are to those of this Agreement unless otherwise

-5.

51453.8 ?ll-1:201?

 

indicated. Section headings in this Agreement are included for convenience of reference only
and shall not constitute a part of this Agreement for any other purpose. if this Agreement is
executed by more than one party as Indemnitor. the obligations of such persons or entities will be
joint and several.

10. Governing Law and Jurisdiction. This Agreement has been delivered to and
accepted by Indemnitee and will be deemed to be made in the STATE OF DELAWARE. THIS
AGREEMENT WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF
THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE, EXCLUDING ITS CONFLICT OF LAWS RULES.
Indemnitor hereby irrevocably consents to the exclusive jurisdiction of any state or federal court
for the county or judicial district where Indemnitee?s of?ce indicated above is located, and
consents that all service of process be sent by nationally recognized overnight courier service
directed to Indemnitor at Indemnitor?s address set forth herein and service so made will be
deemed to be completed on the business day after deposit with such courier; provided that
nothing contained in this Agreement will prevent Indemnitee from bringing any action, enforcing
any award or judgment or exercising any rights against Indemnito'r individually, against any
security or against any property of the Indemnitor within any other county, state or other foreign
or domestic jurisdiction. lndemnitor acknowledges and agrees that the venue provided above is
the most convenient forum for both lndemnitee and Indemnitor. Indemnitor waives any
objection to venue and any objection based on a more convenient forum in any action instituted
under this Agreement. 

II. WAIVER OF JURY TRIAL. THE INDEMNITOR AND INDEMNITEE BY
ITS ACCEPTANCE HEREOF IRREVOCABLY WAIVE ANY AND ALL RIGHT THEY
MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF
ANY NATURE RELATING TO THIS AGREEMENT, ANY DOCUMENTS EXECUTED
IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION
CONT EMPLATED IN ANY OF SUCH DOCUMENTS. THE INDEMNITOR AND
INDEMNITEE ACKNOWLEDGE THAT THE FOREGOING WAIVER IS KNOWING
AND VOLUNTARY.

WITNESS the due execution hereof as a document under seal, as of the date ?rst written
above.

- UNIVERSITY OF DELAWARE

Attest:  - By: 

Print Name: Miran; ML Name: Sh? Bong?lax;
Title: (3 EU Abra-9L: Title: {Er??wide, we,  LA 

1314:2012

1743 HOLDINGS, LLC, a Delaware limited liability
company

By:  (Seal)

Name:
Title:

614153.3l2314r?2012

 

 

EXHIBIT 

Conceptual Building Rendering

 

 

614538 1231431012

 

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EXHIBIT 

Fill Dirt Plan

6l41533 [11140012

 

 

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EXHIBIT 

Roadway Plan

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M41538 

 

 

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FORMER NEWARK WY 

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