EXHIBIT 10.22
OFFICE LEASE
BASIC DEFINITIONS AND LEASE PROVISIONS
(Office)
A. The following list sets out certain defined terms and certain financial
and other information pertaining to the lease:
1. "Date of Lease": November 27, 2000
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2. "Landlord": Aetna Life Insurance Company
3. Landlord's address: 12001 N. Central Ewy., Suite 650, Dallas, TX
75243
Contact: UBS Realty Investors, LLC, Agent
Telephone: (972) 437-9778 Facsimile: (972) 783-2329
4. "Tenant": Stanford Microdevices, Inc., a Delaware Corporation
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5. Tenant's address: 726 Palomar Avenue, Sunnyvale, CA 94086
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Contact: Greg Baker
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Telephone: 972-952-1465 Facsimile: 972-952-1468
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6. Tenant's trade name: Stanford Microdevices, Inc.
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7. "Building": Landlord's property located in the City of Richardson,
Dallas County, Texas, which property is described or shown on Exhibit "A",
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attached to the Lease.
8. "Premises": A unit in the Building containing approximately 20,832
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square feet in rentable area (measured by calculating lengths and widths to the
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exterior of outside walls and to the center of interior walls, without deduction
for any columns or projections necessary to the building, and, if applicable, a
proportionate share of any common areas located on the floor(s) on which the
Premises is located and a proportionate share of any of the Building's public
areas, management office, engineer's office, and mechanical spaces, e.g.,
service areas housing communications, HVAC, plumbing, fire protection and
elevator equipment), being known as Arapaho Business Park X, 1212 E. Arapaho
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Road, Richardson, TX 75081 and being described or shown on Exhibit "B", attached
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to the Lease. With regard to Exhibit "B", the parties agree that the exhibit is
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attached solely for the purpose of locating the Building and the Premises within
the Building and that no representation, warranty, or covenant is to be implied
by any other information shown on the exhibit (i.e., any information as to
buildings, tenants or prospective tenants, etc. is subject to change at any
time). Should a party desire to measure the square footage of the Premises, it
must do so at the time of construction of any leasehold improvements prior to
the Commencement Date, or if no leasehold improvements are to be constructed,
then prior to the Commencement Date. If such measurement reflects a different
number, then, subject to the other party's verification of the number, the
parties agree to make adjustments based on such measurement. In the event of a
dispute regarding the method of calculation, the parties agree that the
standards for measurement set by the Building Owners and Managers Association
("BOMA") shall govern and control. If no measurement is made prior to the
Commencement Date, then the parties to this Lease will be
deemed to have accepted the number contained herein as the square footage of
rentable area of the Premises throughout the Lease Term, subject to adjustment
only for any subsequent additions or deletions of space.
9. "Commencement Date": If Tenant is to perform the construction of
leasehold improvements, then the Commencement Date shall be as set forth in
Section 9.a. In all other instances, the Commencement Date shall be as set forth
in Section 9.b.:
(a) The earlier of (i) days after the Premises are
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delivered to Tenant (as defined in Exhibit "E" attached to this lease), it being
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Landlord's estimate that the premises will be delivered to Tenant on or before
, 19 ; or (ii) , 19 .
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(b) 2 days after the date the Work on the Premises is
substantially completed (as defined in Exhibit "E"), with Landlord using
reasonable business efforts to accommodate a date providing for a July 1, 2001
Commencement Date; provided, however, if substantial completion has not occurred
by September 1, 2001 (plus applicable Tenant Delays and delays resulting from
events beyond the reasonable control of Landlord, including events of force
majeure), Tenant shall have the right to terminate this Lease (acceptance of the
Premises and move-in by Tenant shall be deemed a waiver of Tenant's termination
right herein.
10. "Lease Term": Commencing on the Commencement Date and continuing
for sixty (60) months after the Commencement Date; provided that if the
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Commencement Date is a date other than the first day of a calendar month, then
the Lease Term shall be extended so that it expires at the end of the calendar
month following the expiration of the months noted herein.
11. "Base Rental": The total Base Rental for the Lease Term is
$1,682,184.00, payable as follows:
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Month(s) Amount per s.f. Amount per year Amount per month
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1-12 $15.15 $315,604.80 $26,300.40
13-24 $15.65 $326,020.80 $27,168.40
25-36 $16.15 $336,436.80 $28,036.40
37-48 $16.65 $346,852.80 $28,904.40
49-60 $17.15 $357,268.80 $29,772.40
12. "Base Expense Stop": An amount equal to actual operating expenses
incurred during Calendar Year 2001 (See Exhibit "C").
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13. "Tenant's Pro Rata Share": 30.61%, which is the percentage
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obtained by dividing (a) the square footage of rentable area of the Premises
(20,832 sf) by (b) the square footage of rentable area of the Building (68,063
sf).
14. "Prepaid Rental": $26,300.40, being an estimate of the Base
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Rental, for the one (1) month(s) of the Lease Term, such prepaid rental being
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due and payable on April 30, 2001.
15. "Security Deposit": $28,036.40, such Security Deposit being due
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and payable upon execution of this Lease.
16. "Permitted Use": General Office and electronic engineering testing
lab in connection with Tenant's business operations only and for no other use or
purpose. Tenant acknowledges that the above specification of a "Permitted Use"
means only that Landlord has no objection to the specified use and does not
include any representation or warranty by Landlord that such specified use
complies with applicable laws and/or requires special governmental permits.
17. "Rent" or "rental": All amounts due from Tenant to Landlord under
Section 4.5 of the Lease, are deemed to be "rent" or "rental".
18. "Brokers": Insignia/ESG, Inc. and Henry S. Miller Commercial
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B. The foregoing Basic Lease information is incorporated into and made a
part of the lease. If any conflict exists between any Basic Lease Information
and the Lease, then the Lease shall control.
IN WITNESS WHEREOF, Landlord and Tenant have entered into and executed this
Lease on the Date of the Lease written above.
LANDLORD:
AETNA LIFE INSURANCE COMPANY,
a Connecticut Corporation
By: UBS REALTY INVESTORS, L.L.C.,
(f/k/a Allegis Realty Investors LLC),
a Massachussets Limited Liability
Company,
Its Agent and Investment Advisor
By: /s/ Joseph E. Gaukler
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Name: Joseph E. Gaukler
Title: Director
TENANT:
STANFORD MICRODEVICES, INC.
a Delaware Corporation
By: /s/ Thomas J. Scannell
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Printed Name: Thomas J. Scannell
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Title: V.P. Finance & Administration
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LEASE AGREEMENT
(Office)
This LEASE AGREEMENT (the "Lease") is entered into as of the Date of the
Lease between AETNA LIFE INSURANCE COMPANY ("Landlord") and STANFORD
MICRODEVICES, INC. ("Tenant").
ARTICLE 1
BASIC DEFINITIONS AND LEASE PROVISIONS
1.1 The definitions and basic provisions set forth in the Basic Definitions
and Lease Provisions executed by Landlord and Tenant, and attached hereto, are
incorporated herein by reference for all purposes.
ARTICLE 2
LEASE GRANT
2.1 Subject to the terms and conditions of this Lease, Landlord leases to
Tenant, and Tenant leases from Landlord, the Premises for the Lease Term.
2.2 In addition, Tenant is granted the non-exclusive right to use in common
with the other tenants and occupants the parking and other common areas of the
Building, as such may be modified from time to time by Landlord. The grant
herein provided shall not include any easement for light or air.
ARTICLE 3
DELIVERY OF THE PREMISES; LEASE TERM
3.1 The Lease Term shall be for the period of time specified in the Basic
Definitions and Lease Provisions, beginning on the Commencement Date, as such
date may be adjusted herein, and expiring on the Expiration Date. If this Lease
is executed before the Premises become vacant, or otherwise available, or if any
present tenant or occupant of the Premises holds over, and Landlord cannot
acquire possession of the Premises to deliver to Tenant, or if Landlord is
obligated to construct leasehold improvements in the Premises under the
provisions of Exhibit "E", but is unable to complete the leasehold improvements
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by the Commencement Date due to an unavoidable delay, as defined in Exhibit "E",
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then Landlord shall not be deemed to be in default hereunder, and Tenant agrees
to accept possession on such date as Landlord is able to deliver possession and
the Commencement Date shall be postponed accordingly; provided, however,
notwithstanding the foregoing, if Landlord is unable to provide a substantially
completed Premises by September 1, 2001 (plus any days attributable to Tenant
Delays and delays resulting from events beyond the reasonable control of
Landlord, including events of force majeure, Tenant shall have the right to
terminate this Lease by providing written notice thereof to Landlord at any time
thereafter and prior to substantial completion and upon such termination, all
prepaid amounts, if any, shall be returned promptly to Tenant. Thereafter, this
Lease shall continue for the full number of months set forth in the Lease Term.
Except for a postponement of the Commencement Date, this Lease shall not be
affected by any failure to deliver possession as a result of an event noted
above and Tenant shall have no claim for damages against Landlord as a result
thereof, all of which claims are hereby waived and released by Tenant.
3.2 If Tenant takes possession of the Premises prior to the Commencement
Date for any reason, then such possession shall be subject to all the terms and
conditions of the Lease and Tenant shall pay Base Rental and other rent to
Landlord on a per diem basis for each day of occupancy prior to the Commencement
Date at the rate payable for the first month of the Lease Term. Tenant shall
not, however, be obligated to pay Base Rental and other rent to Landlord prior
to the Commencement Date if such early occupancy is only for the purpose of
equipping the Premises or constructing leasehold improvements if Tenant is
required to do so under the provisions of Exhibit "E".
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3.3 By taking possession of the Premises, it shall be conclusive evidence
that Tenant has inspected the Premises (and has sufficient knowledge and
expertise to make such inspection or has caused the Premises to be inspected on
its behalf by one or more persons with such knowledge and expertise), that
except for latent defects Tenant has accepted the Premises and Building as being
in good and satisfactory condition, suitable for the purposes herein intended
and that the same comply fully with Landlord's covenants and obligations under
the Lease with respect to the construction of leasehold improvements, except for
any punchlist items agreed to in writing by Landlord and Tenant, if Landlord
performed the construction of leasehold improvements. Tenant acknowledges and
agrees that Landlord has made no representation or warranty, express or implied,
as to the habitability, suitability, quality, condition or fitness of the
Premises or Building, and Tenant waives, to the extent permitted by applicable
law, any defects in the Premises or Building and any claims arising therefrom,
save and except those arising from any construction or repair obligations of
Landlord expressly provided for in the Lease.
3.4 Following the Commencement Date, Landlord shall prepare a Commencement
Date Letter in the form attached hereto as Exhibit "F" setting forth the
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Commencement Date, Expiration Date, and confirming Tenant's acceptance of the
Premises and that Landlord has performed all of its obligations with respect to
delivery of the Premises, except as to any punchlist items previously specified
in writing and related to any construction performed by Landlord. Tenant shall
execute and deliver the Commencement Date Letter to Landlord within ten (10)
days after delivery by Landlord.
ARTICLE 4
RENT
4.1 Tenant promises and agrees to pay Landlord at Landlord's address set
forth in the Lease, or such other address as Landlord may provide to Tenant, the
Base Rental and all other rent charged under this Lease without deduction or set
off, for each month of the entire Lease Term. The first monthly installment of
Base Rental shall be payable by Tenant to Landlord on April 30, 2001, and
thereafter, a monthly installment of Base Rental, as may be adjusted in
accordance with the provisions of the Lease, shall be due and payable, in
advance, without notice or demand on or before the first day of each succeeding
calendar month during the Lease Term. The Base Rental for any fractional month
at the beginning or end of the Lease Term shall be prorated.
4.2 The Base Rental is determined, in part, on Landlord's estimate of Basic
Costs incurred by Landlord each year in connection with its ownership, operation
and management of the Building. In the event that the Basic Costs increase after
the Base Year, or are estimated by Landlord to increase, above the levels
charged to Landlord on the Date of the Lease, Landlord shall charge to Tenant
and Tenant agrees to pay as additional rental Tenant's Pro Rata Share of any
such increases in Basic Costs in accordance with the provisions of Exhibit "C".
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4.3 The Security Deposit shall be paid to Landlord contemporaneously with
the execution of the Lease. Landlord shall hold the Security Deposit without
liability for interest and as security for the performance by Tenant of Tenant's
covenants and obligations under the Lease, it being expressly understood that
such deposit shall not be considered an advance payment of rental or a measure
of Landlord's damages in case of default by Tenant. Upon the occurrence of any
Event of Default by Tenant, Landlord may, from time to time, without prejudice
to any other remedy, use the Security Deposit to the extent necessary to make
good any arrearage of rent and any other damage, injury, expense or liability
caused to Landlord by such Event of Default. Following any such application of
the Security Deposit, Tenant shall pay to Landlord on demand the amount so
applied in order to restore the Security Deposit to its original amount. If
Tenant is not then in default of this Lease, any remaining balance of the
Security Deposit shall be returned by Landlord to Tenant upon termination of the
Lease. If Landlord transfers its interest in the Premises during the Lease Term,
Landlord may assign the Security Deposit to the transferee and thereafter shall
have no further liability for the return of the Security Deposit.
4.4 Tenant hereby acknowledges that late payment to Landlord of rent due
hereunder will cause Landlord to incur costs and inconvenience not contemplated
by the Lease, the exact amount of which will be extremely difficult to
ascertain. If any rent due from Tenant is not received by Landlord or Landlord's
designated agent within ten (10) days after its due date, then Tenant shall pay
to Landlord as a late charge ten percent (10%) of such overdue amount (but not
more than $500.00 per occurrence), plus any attorney's fees incurred by Landlord
by reason of Tenant's failure to pay rent when due hereunder. The parties hereby
agree that such late charges represent a fair and
reasonable estimate of the cost that Landlord will incur by reason of Tenant's
late payment. Landlord's acceptance of such late charges shall not constitute a
waiver of Tenant's default with respect to such overdue amount or estop Landlord
from exercising any of the other rights and remedies granted hereunder.
4.5 All payments required of Tenant under the Lease shall bear interest,
beginning on the day after the due date until paid at the lesser of eighteen
percent (18%) per annum or the maximum lawful rate ("Default Interest"). In no
event, however, shall the charges permitted under this paragraph or elsewhere in
the Lease, to the extent the same are considered to be interest under applicable
law, exceed the maximum lawful rate of interest.
4.6 No payment by Tenant or receipt by Landlord of a lesser amount than the
rent due under this lease shall be deemed to be other than on account of the
earliest rent due hereunder, nor shall any endorsement or statement on any check
or any letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such rent or to pursue any other
remedy provided in this lease or at law or in equity.
ARTICLE 5
SERVICES
5.1 Provided no Event of Default exists, Landlord shall use reasonable
business efforts to furnish to Tenant the following services: (i) water (hot and
cold) at those points of supply provided for general use of tenants of the
Building; (ii) heated and refrigerated air conditioning ("HVAC") as appropriate,
during Normal Business Hours (which shall be on generally accepted business days
from 12:00 a.m. to 11:59 p.m., Monday through Sunday), and at such temperatures
and in such amounts as are reasonably considered by Landlord to be standard;
(iii) janitorial service comparable to that provided in other office buildings
on business days (if Tenant's use or floor covering or other leasehold
improvements require special services, then Tenant shall, at Landlord's option,
either retain another cleaning contractor to perform such services [with
Landlord's reasonable approval] or pay the additional cost reasonably determined
by Landlord attributable to the special services, as additional rent) and such
window washing as may from time to time in Landlord's judgment be reasonably
required; (iv) other than as specifically limited in this Lease, access to the
Premises at all times if a multi-floor building, then elevators for ingress and
egress to the floor on which the Premises are located, in common with other
tenants, provided that Landlord may reasonably limit the number of elevators in
operation at times other than during customary business hours and on holidays;
(v) replacement of Building-standard light bulbs and fluorescent tubes; and (vi)
electrical current other than for lighting or equipment requiring more than 110
volts, or other than for lighting or equipment with electrical energy
consumption that exceeds normal office usage as reasonably determined by
Landlord. If Tenant desires any HVAC service after Normal Business Hours, such
service shall be supplied to Tenant upon the written request of Tenant delivered
to Landlord before 3:00 p.m. on the business day before the service is to be
provided, and Tenant shall pay to Landlord the cost of such service with the
next due installment of monthly rent after Landlord has delivered to Tenant an
invoice therefor.
5.2 Tenant shall not install any electrical equipment requiring special
wiring or voltage in excess of 110 volts or otherwise exceeding Building
capacity unless approved in advance by Landlord. If approved, Landlord shall use
reasonable efforts to furnish electrical current for such lighting or equipment
through the then-existing feeders and risers serving the Building and the
Premises, and Tenant shall pay to Landlord the cost of such service with the
next due installment(s) of monthly rent after Landlord has delivered to Tenant
an invoice therefor. Landlord may determine the amount of such additional
consumption and potential consumption by either or both: (i) a survey of
Tenant's potential usage of electricity and that of standard or average tenant
usage of electricity in the Building performed by a reputable consultant
selected by Landlord and paid for by Tenant; or (ii) a separate meter in the
Premises installed, maintained, and read by Landlord, at Tenant's expense. In no
event will the use of electricity in the Premises exceed the capacity of
existing feeders and risers to or wiring in the Premises. If additional risers
or wiring are required to meet Tenant's excess electrical requirements,
Landlord, in it's reasonable judgment, may elect to permit same at the sole cost
and expense of Tenant, provided such additional feeders, risers or wirings shall
not cause permanent damage or injury to the Building or the Premises, cause or
create a dangerous or hazardous condition, entail excessive or unreasonable
alterations, repairs, or expenses, or interfere with or disturb other tenants of
the Building. If Tenant uses machines or equipment in the Premises which affect
the standard temperature otherwise maintained by the air conditioning system,
Landlord
may install supplemental air conditioning units or other supplemental equipment
in the Premises, and the cost thereof, including the cost of installation,
operation, use, and maintenance, shall be paid by Tenant to Landlord with the
next due installment of rent after Landlord has delivered to Tenant an invoice
therefor.
5.3 Landlord's obligation to furnish services under Section 5.1 shall be
subject to the rules and regulations of the supplier of such services and
governmental rules and regulations. Landlord may, upon not less than thirty (30)
days' prior written notice to Tenant, discontinue any such service to the
Premises, provided Landlord first arranges for a direct connection thereof
through the supplier of such service. Tenant shall, however, be responsible for
contracting with the supplier of such service and for paying all deposits for,
and costs relating to, such service.
5.4 Failure to any extent to furnish any service described above or any
stoppage or interruption of those services resulting from any cause shall not
render Landlord liable in any respect for damages, nor be construed as an
eviction of Tenant or work an abatement of rent, nor relieve Tenant from
fulfillment of any covenant or agreement contained in the Lease; notwithstanding
the foregoing, if Tenant is unable to reasonably use the Premises for its
intended use for a period of 5 days and such interruption is the result of the
acts or omissions of Landlord, all Rent shall abate from and after such time
until Tenant can again utilize the space and, if the inability to use the
Premises continues for more than 30 days, Tenant shall have the right to
terminate the Lease and vacate the Premises.
ARTICLE 6
USE
6.1 Tenant shall use the Premises only for the Permitted Use unless
Landlord consents to another use such consent to be in Landlord's sole and
absolute discretion. Tenant will not occupy or use the Premises, or permit any
portion of the Premises to be occupied or used, for any business or purpose
other than the Permitted Use or for any use or purpose which is unlawful or
deemed to be disreputable in any manner, or dangerous to life, limb or property,
or extrahazardous on account of fire, nor permit anything to be done which will
in any way increase the premiums for insurance coverage on the Building or
contents therein, or invalidate any insurance coverage on the Building. Tenant
will conduct its business and control its agents, employees and invitees in such
a manner as not to create any nuisance, nor interfere with, annoy or disturb
other tenants or Landlord, in the management of the Building. Tenant will not
commit waste and will maintain the Premises in a clean, healthful and safe
condition and will comply with all laws, ordinances, orders, rules and
regulations (state, federal, municipal, insurance and other agencies or bodies
having any jurisdiction thereof) with reference to the use, condition or
occupancy of the Premises itself, including, without limitation, all
environmental, health and safety laws and the Americans with Disabilities Act;
Landlord, however, shall be responsible for the Building's compliance with all
such matters (other than with respect to the Premises). Tenant will secure at
its own expense all permits and licenses required for the transaction of
business from the Premises in accordance with the Permitted Use. Tenant will
receive or take delivery of goods or merchandise and will remove all garbage and
trash only in the manner and areas reasonably prescribed by Landlord from time
to time. Tenant will not display or sell merchandise outside the exterior walls
and doorways of the Premises and may not use such areas for storage. Tenant will
not keep any substance or carry on or permit any operation which might emit
offensive odors or conditions into other parts of the Building or use any
apparatus which might make undue noise or vibrations in the Building. Tenant
further agrees not to install any exterior lighting, amplifiers or similar
devices or use in or about the Premises an advertising medium which may be heard
or seen outside the Premises, such as flashing lights, searchlights,
loudspeakers, phonographs or radio broadcasts.
6.2 Tenant will, and will cause all its employees, agents, contractors and
invitees to, comply fully with all rules and regulations of the Building adopted
by Landlord from time to time. A copy of the rules and regulations for the
Building, existing on the Date of the Lease, are attached hereto as Exhibit "D".
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Landlord shall at all times have the right to change such rules and regulations
or to promulgate other rules and regulations in such reasonable manner as may be
deemed advisable for the safety, care, or cleanliness of the Building or
Premises, and for the preservation of good order therein, all of which rules and
regulations, changes and amendments will be forwarded to Tenant in writing and
shall be carried out and observed by Tenant, provided such rules and regulations
are not in conflict with the terms of this lease.
ARTICLE 7
SIGNAGE
7.1 Tenant shall not install any signs, window or door lettering or
advertising media of any type in, on or about the Premises or any part thereof,
except for such tenant identification information as Landlord permits to be
included or shown on any directory maintained in the front lobby of the Building
and adjacent to the access door or doors to the Premises or such other items as
Landlord approves. Should Landlord agree in writing to any of the foregoing
items, Tenant agrees to maintain same in good condition and repair at all times.
ARTICLE 8
COMMON AREAS
8.1 The use and occupation by Tenant of the Premises shall include the use
in common with others entitled thereto of the common areas. The term "common
areas" shall mean those portions of the Building intended for the common use of
all tenants including, among other facilities, the parking areas, service roads,
loading facilities, sidewalks, and such other facilities as may be designated by
Landlord from time to time as common areas, subject, however, to the terms and
conditions of this Lease and to the rules and regulations governing the use of
the common areas as prescribed from time to time by Landlord. Landlord shall
have the right from time to time to change the area, level, location and
arrangement of the common areas, but in so doing, shall not deny access to
Tenant, except on a temporary basis if necessary to perform any repairs or in an
emergency.
8.2 All common areas and facilities, which Tenant may be permitted to use
are to be used under a revocable license (revocable only upon the termination of
this Lease), and if such areas are diminished, Landlord shall not be subject to
any liability nor shall Tenant be entitled to any compensation or diminution or
abatement of rent, nor shall the diminution of such areas be deemed constructive
or actual eviction unless Landlord fails to provide adequate parking in
accordance with governmental ordinances or to provide access to the Premises at
all times, other than on a temporary basis to make repairs or in the event of an
emergency.
8.3 All common areas and facilities, which Tenant may be permitted to use
are to be used under a revocable license, and if such areas are diminished,
Landlord shall not be subject to any liability nor shall Tenant be entitled to
any compensation or diminution or abatement of rent, nor shall the diminution of
such areas be deemed constructive or actual eviction.
8.4 In accordance with the provisions of Exhibit "H", Tenant shall have the
right to park in the parking areas in common with other tenants of the Building
upon such reasonable terms and conditions established by Landlord at any time
during the Lease Term, including the imposition of a reasonable parking charge
if required by governmental authority or as otherwise provided for in the Lease.
Tenant agrees not to overburden the parking areas and agrees to cooperate with
Landlord and the other tenants in use of the parking areas. Landlord reserves
the right in its absolute discretion to determine whether the parking areas are
becoming overburdened and to allocate and assign parking spaces among Tenant and
other tenants, and to reconfigure the parking areas and modify the existing
ingress to and egress from the parking areas as Landlord shall deem appropriate,
but in no event shall Landlord seek to reduce the number of parking spaces
available to Tenant below that required by governmental ordinance.
ARTICLE 9
ALTERATIONS
9.1 Any leasehold improvements to the Premises contemplated by Landlord and
Tenant to be made prior to the commencement of the Lease Term shall be performed
in accordance with the provisions of Exhibit "E".
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9.2 Other than any leasehold improvements to be made under Section 9.1,
Tenant shall not make, or allow to be made, any alterations, additions or
improvements to the Premises without the prior written approval of Landlord,
which approval shall not be unreasonably withheld as to interior, non-structural
alterations that do not adversely or materially impact the building systems. All
alterations, additions or improvements installed on the Premises by either
party, including, without limitation, fixtures, but excluding readily movable
trade fixtures, shall become the property of Landlord at the expiration of the
Lease Term, unless Landlord has notified Tenant at the time of installation that
it will require that Tenant remove such addition or improvement, and Landlord
thereafter requests their removal, in which event, Tenant shall remove any such
alterations, additions or improvements and restore the Premises to its original
condition, reasonable wear and tear excepted at Tenant's expense.
9.3 Prior to commencing any construction work on the Premises, Tenant must
furnish to Landlord adequate plans and specifications for the written approval
of Landlord. Once approved, Tenant shall not modify the plans and specifications
without, again, obtaining the written approval of Landlord. Landlord's approval
of the plans and specifications shall not be deemed to be a representation by
Landlord that such plans and specifications comply with applicable insurance
requirements, building codes, ordinances, laws or regulations.
9.4 All construction work shall be performed only by Landlord or by
contractors and subcontractors approved in writing by Landlord, which approval
shall not be unreasonably withheld. If Landlord does not perform the
construction work, then Tenant shall cause all of its contractors and
subcontractors to procure and maintain insurance coverage against such risks and
in such amounts as Landlord may reasonably require and with such companies as
Landlord may reasonably approve, which approval shall not be unreasonably
withheld. Landlord may also require Tenant to obtain a waiver and release of
liens from all contractors and subcontractors prior to commencement of the
construction work. Tenant agrees to indemnify Landlord and hold Landlord
harmless against any loss, liability or damage resulting from any such
construction work performed by Tenant or on Tenant's behalf (other than excess
costs related to delays attributable to Landlord or Landlord's contractor or its
subcontractors.
9.5 All construction work by Landlord or Tenant must be performed in a good
and workmanlike manner in accordance with the approved plans and specifications,
lien-free, and in compliance with all governmental laws and requirements.
Landlord and Tenant shall only utilize new materials of a quality that is equal
or better than the quality of those materials already on the Premises.
9.6 Tenant shall not permit any mechanic's liens to be filed against the
Premises or the Building for any work performed, materials furnished, or
obligation incurred by or at the request of Tenant, including, but not limited
to, any work performed, materials furnished, or obligations incurred by or at
the request of Tenant for construction performed under the provisions of Exhibit
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"E". If such a lien is filed, then Tenant shall, within thirty (30) after
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Landlord has delivered notice of the filing to Tenant, either pay the amount of
the lien or diligently contest such lien, in which event, Tenant shall deliver
to Landlord a bond or other security reasonably satisfactory to Landlord. If
Tenant fails to timely take either such action, then Landlord may, at its
election, pay the lien claim without inquiry as to the validity thereof, and any
amounts so paid, plus Landlord's expenses and the administrative fee equal to
ten percent (10%) of the amount paid, shall be paid by Tenant to Landlord as
additional rental within ten (10) days after Landlord has delivered to Tenant an
invoice therefor. No work which Landlord permits Tenant to perform in the
Premises shall be deemed to be for the immediate use or benefit of Landlord so
that no mechanics or other lien shall be allowed against the estate of Landlord
by reason of its consent to such work.
ARTICLE 10
REPAIRS
10.1 Landlord shall not be required to make any repairs or replacements of
any kind or character on the Premises during the Lease Term except repairs to
the exterior walls, corridors, windows, roof and other structural elements and
equipment of the Building (including, without limitation, all HVAC, electrical,
plumbing and mechanical systems), except when such repairs are caused by fire or
other casualty, in which event, the provisions of Article 13 shall govern and
control. Landlord shall maintain the Building (other than the Premises) and the
exterior common areas of the Building in good condition and repair, similar to
that of a comparable building, reasonable wear and tear excepted. Subject to the
provisions of any waiver contained in Section 12.2, Landlord shall not be
required to make any repairs occasioned by the acts or negligence of Tenant, its
agents, employees, contractors and invitees. Tenant shall give immediate written
notice to Landlord of the need for repairs or corrections and Landlord shall
have a reasonable time to make such repairs or corrections. Landlord's liability
hereunder shall be limited to the cost of such repairs or corrections. Tenant
waives the provisions of any law permitting Tenant the right to make repairs and
deduct the expense of such repairs from the rent due under the lease.
10.2 Landlord may, at its option and at the cost and expense of Tenant,
repair or replace any damage or injury done to the Building or any part thereof,
caused by Tenant, its agents, employees, contractors or invitees. Tenant shall
pay such costs, plus an administrative fee equal to ten percent (10%) of the
costs, to Landlord on the next date an installment of Base Rental is due
following notice from Landlord of the costs. Tenant further agrees throughout
the Lease Term to maintain and keep the interior of the Premises in good repair
and condition at Tenant's expense.
ARTICLE 11
ASSIGNMENT AND SUBLETTING
11.1 Tenant shall not, without the prior written consent of Landlord (which
Landlord may grant or deny in its reasonable discretion), (i) advertise that any
portion of the Premises is available for lease, (ii) assign, transfer, or
encumber this Lease or any estate or interest herein, whether directly or by
operation of law, except to an affiliate of Tenant or to an entity which is the
survivor of a merger or consolidation between it and Tenant or to an entity
which has acquired substantially all of Tenant's assets (collectively, a
"Related Transferee"), (iii) permit any other entity, other than a Related
Transferee, to become Tenant hereunder by merger, consolidation, or other
reorganization, (iv) sublet any portion of the Premises except to a Related
Transferee, (v) grant any license, concession, or other right of occupancy of
any portion of the Premises except to a Related Transferee or to a vendor,
business partner or other entity with which Tenant is transacting business
(collectively, a "Business Partner"), or (vi) permit the use of the Premises by
any parties other than Tenant, a Related Transferee or a Business Partner (any
of the events listed in Sections 11.1(ii) through 11.1(vi) being a "Transfer").
If Tenant requests Landlord's consent to a Transfer other than as allowed above,
then Tenant shall provide Landlord with a written description of all terms and
conditions of the proposed Transfer, copies of the proposed documentation, and
the following information about the proposed transferee: name and address;
reasonably satisfactory information about its business and business history; its
proposed use of the Premises; banking, financial, and other credit information;
and general references sufficient to enable Landlord to determine the proposed
transferee's creditworthiness and character. Tenant shall reimburse Landlord for
its reasonable attorneys' fees and other expenses incurred in connection with
considering any request for its consent to a Transfer. If Landlord consents to a
proposed Transfer, then the proposed transferee shall deliver to Landlord a
written agreement whereby it expressly assumes the obligations of Tenant
hereunder; however, any transferee of less than all of the space in the Premises
shall be liable only for the obligations under this Lease that are properly
allocable to the space subject to the Transfer, and only to the extent of the
rent it has agreed to pay Tenant therefor. Landlord's consent to a Transfer
shall not release Tenant from performing its obligations under this Lease, but
rather Tenant and its transferee shall be jointly and severally liable therefor.
Landlord's consent to any Transfer shall not waive Landlord's rights as to any
subsequent Transfers. If an Event of Default occurs while the Premises or any
part thereof are subject to a Transfer, then Landlord, in addition to its other
remedies, may collect directly from such transferee all rents becoming due to
Tenant and apply such rents against Base Rental and other amounts due under this
Lease. Tenant authorizes its transferees to make payments of rent directly to
Landlord upon receipt of notice from Landlord to do so. Regardless of the waiver
of consent of Landlord for a transfer to a Related Transferee or Business
Partner, Tenant shall provide written notice to Landlord of any such transfer of
interest thirty (30) days prior to its effective date, together with copies of
any documents relating to the transfer of possession. Any Related Transferee or
Business Partner shall agree in a writing furnished to Landlord to assume the
obligations of Tenant hereunder (except in the case of a sublease or agreement
for occupancy of a portion of the Premises, where the Related Transferee or
Business Partner shall only be obligated for payment of rent as set forth in
such sublease or agreement). Notwithstanding any transfer of interest to a
Related Transferee or Business Partner, Tenant shall remain fully obligated
under this Lease (except in the case of a merger whereby the surviving entity
assumes the obligations of Tenant).
11.2 Except for a Transfer to a Related Transferee or Business Partner,
Landlord may, by written notice, within thirty (30) days after submission of
Tenant's written request for Landlord's consent to a Transfer, cancel this Lease
(or, as to a subletting or assignment, cancel as to the portion of the Premises
proposed to be sublet or assigned) as of the date the proposed Transfer was to
be effective. If Landlord cancels this Lease as to any portion of the Premises,
then this Lease shall cease for such portion of the Premises and Tenant shall
pay to Landlord all Base Rental and other amounts accrued through the
cancellation date relating to the portion of the Premises covered by the
proposed Transfer and all brokerage commissions paid or payable by Landlord in
connection with this Lease that are allocable to such portion of the Premises.
Thereafter, Landlord may lease such portion of the Premises to the prospective
transferee (or to any other person) without liability to
Tenant. Notwithstanding the foregoing to the contrary, in the event Landlord
advises Tenant that it desires to cancel the Lease as to all, or the portion, of
the Premises proposed to be sublet or assign, then Tenant shall have five (5)
days to notify Landlord in writing ("Withdrawal Notice") that it has elected to
withdraw its proposed Transfer and this Lease shall continue in full force and
effect with respect to all, or the portion, of the Premises proposed to be
sublet or assigned. Notwithstanding any Withdrawal Notice, if Tenant
subsequently vacates the Premises, the provisions of Section 24.4 shall apply.
11.3 Tenant shall pay to Landlord, immediately upon receipt thereof, all
compensation received by Tenant for a Transfer that exceeds the Base Rental and
other amounts due under the Lease (hereinafter, called "Excess Rent"), excluding
any amount due under this Section 11.3 and allocable to the portion of the
Premises covered thereby. Prior to paying to Landlord any Excess Rent, Tenant
may deduct any reasonable costs incurred by Tenant for brokerage commissions,
tenant improvement costs and attorney's fees in connection with the Transfer.
Tenant shall notify Landlord in writing of any such costs at the time of the
Transfer and furnish to Landlord copies invoices related thereto.
11.4 Landlord may sell, transfer, assign or convey all or any part of its
interest in the Building and the Lease and, in the event Landlord assigns its
interest in this Lease, Landlord shall be released from any future obligation
and liabilities hereunder, and Tenant agrees to attorn and look solely to
Landlord's successor-in-interest for performance of such obligation.
ARTICLE 12
INSURANCE; WAIVERS; SUBROGATION; INDEMNITY
12.1 Tenant shall at its expense procure and maintain throughout the Lease
Term the following insurance policies: (i) commercial general liability
insurance in amounts of not less than $1,000,000 per occurrence, combined single
limit, or such other amounts as Landlord may from time to time reasonably
require, insuring Tenant, Landlord and Landlord's agents against all liability
for injury to or death of a person or persons or damage to property arising from
the use and occupancy of the Premises, (ii) contractual liability insurance
coverage sufficient to cover Tenant's indemnity obligations hereunder, (iii)
casualty insurance, including "all risks" and fire and extended coverage
insurance covering the full value of Tenant's leasehold improvements, personal
property and other property (including the property of others), located in or on
the Premises, (iv) workman's compensation insurance, containing a waiver of
subrogation endorsement reasonably acceptable to Landlord, (v) comprehensive
automobile liability insurance, insuring Tenant, Landlord and Landlord's agents,
and (vi) such other insurance and in such amounts as Landlord may reasonably
require from time to time. Tenant's insurance shall provide primary coverage to
Landlord when any policy issued to Landlord provides duplicate or similar
coverage, and in such circumstance, Landlord's policy will be excess over
Tenant's policy. Tenant shall furnish certificates of insurance and such other
evidence satisfactory to Landlord of the maintenance of all insurance coverages
required hereunder prior to the Commencement Date, and Tenant shall obtain a
written obligation on the part of each insurance company to notify Landlord at
least thirty (30) days before cancellation or a material change of any such
insurance. All general commercial liability insurance policies shall name
Landlord as additional insured, and otherwise shall be in form, and issued by
companies, reasonably satisfactory to Landlord and with deductibles reasonably
satisfactory to Landlord. Tenant's failure to maintain any insurance hereunder
shall constitute an Event of Default without any written notice required of
Landlord and, in such event, Landlord shall have the right, but not the
obligation, to purchase any insurance that has lapsed. Should Landlord elect to
purchase insurance on behalf of Tenant, then Tenant shall reimburse to Landlord
the cost of such insurance and an administrative fee of ten percent (10%) of the
amount of the premium within ten (10) days of the date of the notice from
Landlord seeking the reimbursement. The policy limits of any insurance required
to be carried by Tenant shall not limit the liability of Tenant under this
Lease.
Landlord shall procure and maintain throughout the Lease Term the following
insurance policies: (i) commercial general liability insurance in amounts of not
less than $1,000,000 per occurrence, combined single limit, or such other higher
amounts as are deemed reasonable, in Landlord's sole discretion, (ii)
contractual liability insurance coverage sufficient to cover any indemnity
obligations of Landlord hereunder, (iii) casualty insurance, including "all
risks" and fire and extended coverage insurance covering the full replacement
value of the Building, excluding the leasehold improvements and personal
property of tenants (including Tenant's) and their employees, agents,
contractors and invitees, and (iv) such other insurance coverages and amounts as
Landlord
may elect to carry from time to time. The costs of insurance shall be reimbursed
to Landlord in accordance with the provisions of Exhibit "C", hereunder.
12.2 Landlord shall not be liable to Tenant or those claiming by, through,
or under Tenant for any injury to or death of any person or persons or the
damage to or theft, destruction, loss, or loss of use of any property or
inconvenience (a "Loss") caused by casualty, theft, fire, third parties, or any
other matter (including Losses arising through repair or alteration of any part
of the Building, or failure to make repairs, or from any other cause),
regardless of whether the negligence of any party caused such Loss in whole or
in part. Landlord and Tenant waive any claim each might have against the other
for any damage to or theft, destruction, loss, or loss of use of any property,
to the extent the same is covered under any insurance policy that covers the
Building, the Premises, Landlord's or Tenant's fixtures, personal property,
leasehold improvements, or business, or [ ] is required to be insured against
under the terms of the Lease, regardless that the negligence or fault of the
other party caused such loss; however, the waiver shall not apply to the portion
of any damage which is not reimbursed by the damaged party's insurance by reason
of the deductible in such party's insurance coverage, but not in excess of
$10,000.00 (even if the deductible is for a greater amount). Each party shall
cause its insurance carrier to endorse all applicable policies waiving the
carrier's rights of recovery under subrogation or otherwise against the other
party.
12.3 Subject to the provisions of Section 12.2, Tenant shall defend,
indemnify, and hold harmless Landlord and its employees and agents from and
against all claims, demands, liabilities, causes of action, suits, judgments,
and expenses (including attorneys' fees) for any Loss arising from an occurrence
on the Premises or caused by or resulting from the condition of the Premises
which is the responsibility of Tenant, or from the acts or omissions of Tenant
or Tenant's employees, agents, contractors or invitees, or from Tenant's failure
to perform any of its obligations under this Lease (other than a Loss arising
from the gross negligence or willful misconduct of Landlord or its employees or
agents), even though caused or alleged to be caused by the joint, comparative,
or concurrent negligence or fault of Landlord or its employees and agents, and
even though any such claim, cause of action, or suit is based upon or alleged to
be based upon the strict liability of Landlord or its employees and agents,
provided that this indemnity shall not apply to the gross negligence or willful
misconduct of Landlord or its employees or agents. This indemnity provision is
intended to indemnify Landlord and its employees and agents against the
consequences of their own negligence or fault (but not the gross negligence or
willful misconduct of Landlord or its employees or agents) as provided above
when Landlord or its employees and agents are jointly, comparatively, or
concurrently negligent with Tenant.
12.4 Tenant shall not use, and shall not permit any subtenant, licensee,
concessionaire, employee, agent or invitee (hereinafter collectively "Tenant's
Representatives") to use, any portion of the Premises or Building, for the
placement, storage, manufacture, disposal or handling of any hazardous materials
(hereinafter defined) unless Tenant complies with all applicable environmental
laws (federal, state or local), including, but not limited to those for
obtaining proper permits. In the event Tenant or Tenant's Representatives desire
to use or place hazardous materials on the Premises (other than those normally
used in General Offices uses, such as cleaning agents or toner for copier
machines) it shall notify Landlord in writing thirty (30) days prior to such
proposed use or placement, and provide the names of the hazardous materials,
procedures to insure compliance with the applicable environmental law and such
other information as Landlord may reasonably request.
In the event Tenant or Tenant's Representatives places, releases or
discovers any hazardous materials on the Premises or Building in violation of
applicable environmental laws, Tenant shall immediately notify Landlord of such
fact in writing within twenty-four (24) hours of the placement, release or
discovery. Tenant shall not be responsible nor liable for the removal of any
such materials which were not placed, manufactured, deposited, spilled, stored,
disposed of or leaked by Tenant or Tenant's Representatives. Tenant shall not
attempt any removal, abatement or remediation of those hazardous materials on
the Premises in violation of applicable environmental laws, without obtaining
the additional written consent of Landlord, which consent may be specifically
conditioned on Landlord's right to approve the scope, timing and techniques of
any such work and the appointment of all contractors, engineers, inspectors and
consultants in connection with any such work. Tenant shall be responsible for
the cost of any removal, abatement and remediation work of any hazardous
materials which it or Tenant's Representatives have placed, stored,
manufactured, disposed of or handled by Tenant or Tenant's Representatives on
the Premises or any other portion of the Building and for the cost of any
removal, abatement or remediation of any hazardous materials which might be
disturbed or released as a result of any remodeling or construction in the
Premises by Tenant or Tenant's Representatives. Such costs shall include,
without limitation, the
cost of any supervision by Landlord, its employees or agents, in connection with
such work. Tenant shall comply with all environmental laws in connection with
any such removal.
Tenant shall indemnify Landlord, its shareholders, directors, officers,
employees and agents and hold them harmless, from and against any loss, damage
(including, without limitation, a loss in value of the Building or damages due
to restrictions on marketing contaminated space), cost, liability or expense
(including reasonable attorneys' fees and expenses and court costs) arising out
of the placement, storage, use, manufacture, disposal, handling, removal,
abatement or remediation of any hazardous materials by Tenant or Tenant's
Representatives on the Premises or Building, or any removal, abatement or
remediation of any hazardous materials required hereunder to be performed or
paid for by Tenant, with respect to any portion of the Premises or the Building,
or arising out of any breach by Tenant of its obligations under this paragraph.
The term "hazardous materials" as used herein shall mean (i) any "hazardous
waste" as defined by the Resource Conservation and Recovery Act of 1976 (42
U.S.C. Section 6901 et seq.), as amended from time to time, and regulations
promulgated thereunder; (ii) any "hazardous substance" as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42
U.S.C. Section 9601, et seq.), as amended from time to time, and regulations
promulgated thereunder; (iii) asbestos or polychlorinated biphenyls; (iv) any
substance the presence of which on the Building or on the Premises is prohibited
or regulated by any federal, state or local law, regulation, code or rule; and
(v) any other Substance which requires special handling or notification of any
federal, state or local governmental entity in its collection, storage,
treatment, or disposal.
12.5 The indemnification provisions contained in Article 12 shall survive
the termination of this Lease.
ARTICLE 13
FIRE AND CASUALTY
13.1 If the Premises or Building or any part thereof shall be materially
damaged by fire or other casualty, Tenant shall give prompt written notice
thereof to Landlord and Landlord or Tenant (where the damage or destruction
prevents Tenant from carrying on its normal business operations and such damage
is estimated to require more than 120 days from the date of the casualty to
repair) may, at its option, terminate this Lease by notifying the other party in
writing of such termination within sixty (60) days after the date of such
damage, in which event the rent hereunder shall be abated as of the date of such
damage. If this Lease is not so terminated, Landlord shall as soon as reasonably
practical after the date of such damage commence to repair and restore the
Building with reasonable diligence (except that Landlord shall not be
responsible for delays outside its control) to substantially the same condition
in which it was immediately prior to the happening of the casualty, except that
Landlord shall not be required to rebuild, repair or replace any part of
Tenant's leasehold improvements (except to the extent originally paid by
Landlord), furniture, furnishings or fixtures and equipment removable by Tenant
under the provisions of this Lease. Tenant agrees to rebuild and restore any
leasehold improvements to the extent not required of Landlord. Tenant shall
commence any such work upon written notice from Landlord. In the event Landlord
is unable to complete the Building and improvements required of Landlord as
noted in this Section 13.1 within 120 days following the date of the casualty,
as such period may be extended by reason of Tenant Delays or delays beyond the
reasonable control of Landlord, then Tenant may elect to terminate this Lease
upon written notice to Landlord at any time within thirty (30) days following
the expiration of the 120 day period. If Tenant fails to notify Landlord that it
is electing to terminate within the 30-days, it shall be deemed to have elected
to waive the right to terminate due to Landlord's failure to complete the
improvements timely and this Lease shall continue in full force and effect as
noted herein above. Any insurance which may be carried by Landlord or Tenant
against loss or damage to the Building or to the Premises shall be for the sole
benefit of the party carrying such insurance and under its sole control.
13.2 Landlord shall not be liable for any inconvenience or annoyance to
Tenant or injury to the business of Tenant resulting in any way from such damage
or the repair thereof. Subject to the provisions of the remainder of this
paragraph, Landlord shall allow Tenant a fair diminution of rent during the time
and to the extent the Premises are unfit for occupancy. The diminution of rent
shall expire on the date Landlord delivers the Premises to Tenant ready for
occupancy (if Landlord originally provided the leasehold improvements) or (ii)
on the date following all equivalent time allowed Tenant for the construction of
leasehold improvements after Landlord delivered the
Premises to Tenant ready for Tenant to rebuild its leasehold improvements, as
contemplated in Exhibit "E" (if Tenant originally provided the leasehold
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improvements). If the Premises or any other portion of the Building is damaged
by fire or other casualty resulting from the fault or negligence of Tenant or
any of Tenant's agents, employees or invitees, [ ] Tenant shall be liable to
Landlord for the cost and expense of the repair and restoration of the Building
caused thereby to the extent such costs and expenses are not covered by
insurance carried, or required to be carried, by Landlord under the he
provisions of this Lease, but Tenant shall not be liable for any amount in
excess of $10,000.00 to the extent due solely by reason of Landlord's carrying a
larger deductible [ ].
ARTICLE 14
CONDEMNATION
14.1 If all of the Building should be taken for any public or quasi-public
use under any governmental law, ordinance or regulation or by right of eminent
domain or by private purchase in lieu thereof, this Lease shall terminate and
the rent shall be abated during the unexpired portion of the Lease Term,
effective on the date physical possession is taken by the condemning authority,
and Tenant shall have no claim against Landlord for the value of any unexpired
Lease Term.
14.2 In the event a portion but not all of the Building shall be taken for
any public or quasi-public use under any governmental law, ordinance or
regulation, or by right of eminent domain, by private sale in lieu thereof and
the partial taking or condemnation shall render the Building unsuitable for
continued operation, then Landlord or Tenant shall have the option, in its sole
discretion, of terminating this Lease or if this Lease is not terminated, at
Landlord's sole risk and expense, Landlord shall restore and reconstruct the
Building to the extent necessary to make same reasonably tenantable. Should this
Lease not be terminated, then Landlord shall restore the Premises and the Lease
shall continue in full force and effect with the rent payable during the
unexpired portion of this Lease being adjusted to such an extent as may be fair
and reasonable under the circumstances, and Tenant shall have no claim against
Landlord for the value of any interrupted portion of this Lease.
14.3 Landlord shall be entitled to receive all of the compensation awarded
upon a condemnation (or the proceeds of a private sale in lieu thereof) of all
or any part of the Building or the Premises, including any award for the value
of any unexpired Lease Term, and Tenant hereby assigns to Landlord and expressly
waives all claim to any such compensation. However, Tenant reserves for itself
any separate award made for relocation cost or loss of any of Tenant's trade
fixtures, provided no such award shall diminish the amount that would otherwise
be awarded to Landlord.
ARTICLE 15
SUBORDINATION, ATTORNMENT, ESTOPPEL
15.1 This Lease shall be subordinate to any deed of trust, mortgage, or
other security instrument (a "Mortgage"), or any ground lease, master lease, or
primary lease (a "Primary Lease"), that [ ] hereafter covers all or any part of
the Premises (the mortgage under any Mortgage or the lessor under any Primary
Lease is referred to herein as "Landlord's Mortgagee"), including any
modifications, renewals or extensions of such Mortgage or Primary Lease.
Notwithstanding the foregoing, Tenant agrees that any such Landlord's Mortgagee
shall have the right at any time to subordinate such Mortgage or Primary Lease
to this Lease on such terms and subject to such conditions as Landlord's
Mortgagee may deem appropriate in its discretion. Tenant agrees upon demand to
execute such further instruments subordinating this Lease or attorning to the
Landlord's Mortgagee as Landlord my request. In the event that Tenant should
fail to execute any subordination or other agreement required by this paragraph,
promptly as requested, Tenant hereby irrevocably constitutes Landlord as its
attorney in fact to execute such instrument in Tenant's name, place and stead,
it being agreed that such power is one coupled with an interest. As a condition
precedent to executing any subordination agreement, Landlord's Mortgagee shall
agree in writing not to disturb this Lease as long as Tenant has not committed
an Event of Default (i.e., beyond applicable notice and cure periods).
Landlord represents that there is no Mortgage on the Project on the date of
this Lease.
15.2 Tenant shall attorn to any party succeeding to Landlord's interest in
the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure,
power of sale, termination of lease, or otherwise, upon such party's request,
and shall execute such agreements confirming such attornment as such party may
reasonably request.
15.3 Tenant shall not seek to enforce any remedy it may have for any
default on the part of the Landlord without first giving written notice by
certified mail, return receipt requested, specifying the default in reasonable
detail, to any Landlord's Mortgagee whose address has been given in writing to
Tenant, and affording such Landlord's Mortgagee a reasonable opportunity to
perform Landlord's obligations hereunder.
15.4 Tenant agrees that, within ten (10) days of written request by
Landlord, it will execute and deliver to such persons as Landlord shall request
a statement in recordable form certifying that this Lease is unmodified and in
full force and effect (or if there have been modifications, that the same is in
full force and effect as so modified), stating the dates to which rent and other
charges payable under this Lease have been paid, stating that Landlord is not in
default hereunder (or if Tenant alleges a default stating the nature of such
alleged default) and further stating such other matters as Landlord shall
reasonably require.
ARTICLE 16
EVENTS OF DEFAULT
16.1 The following shall be deemed to be Events of Default by Tenant under
this Lease:
(a) Tenant shall fail to pay any installment of Base Rental or any
other rent or monetary sum when due under the provisions of the Lease and such
failure continues for a period of ten (10) days after written notice; provided,
however, that Landlord shall only be required to give written notice on the
first two (2) occasions in a twelve (12) month period that same is past due and,
thereafter, if Tenant on a subsequent occasion fails to pay when due, it shall
be an Event of Default without any prior notice required of Landlord. It is the
intent of the parties that written notice shall not be required for a failure to
pay to constitute an Event of Default except as expressly provided herein.
(b) Tenant shall fail to comply with any term, provision or covenant
of this lease, other than the payment of a monetary sum, and such failure shall
not be cured twenty (20) days after written notice thereof to Tenant; provided,
however, if such default is typically one that cannot reasonably be cured within
such time period, so long as Tenant is diligently working toward the cure
thereof, Tenant shall have such additional time as is reasonably necessary to
effect such cure, not to exceed sixty (60) days.
(c) Tenant or any guarantor of Tenant's obligations under this Lease
shall become insolvent, or shall make a transfer in fraud of creditors, or shall
make an assignment for the benefit of creditors.
(d) Tenant or any guarantor of Tenant's obligations under this Lease
shall file a petition under any state or federal bankruptcy or other insolvency
statutes or Tenant or any guarantor of Tenant's obligations under this Lease
shall be adjudged bankrupt or insolvent in proceeding filed against Tenant or
guarantor thereunder and such adjudication shall not be vacated or set aside
within thirty (30) days.
(e) A receiver or trustee shall be appointed for all or substantially
all of the assets of Tenant or any guarantor of the obligations of Tenant under
this Lease and such receivership shall not be terminated or stayed within thirty
(30) days.
(f) Tenant shall do or permit to be done anything which creates a lien
upon the Premises or upon all or any part of the Building which is not removed
within thirty (30) days after receipt of written notice thereof from Landlord.
(g) Tenant shall desert or vacate any substantial portion of the
premises, except in accordance with the provisions of Section 24.4.
ARTICLE 17
REMEDIES
17.1 Upon the occurrence of an Event of Default, Landlord shall have the
option to pursue any one or more of the following remedies without any notice or
demand whatsoever, except if required by applicable law:
(a) Terminate this Lease in which event Tenant shall immediately
surrender the Premises to Landlord, and if Tenant fails to do so, Landlord may,
without prejudice to any other remedy which it may have for possession or
damages, enter upon and take possession and expel or remove Tenant and any other
person who may be occupying said Premises or any part thereof by any lawful
means without being liable for prosecution or any claim for damages therefor,
and Tenant agrees to pay to Landlord, as hereinafter set forth in Section 17.2,
on demand the amount of all loss and damage which Landlord may suffer by reason
of such termination, whether through inability to relet the Premises on
satisfactory terms or otherwise.
(b) Terminate Tenant's right to possession of the Premises, but not
the Lease, in which event Tenant shall immediately surrender the Premises to
Landlord, and if Tenant fails to do so, Landlord may, without prejudice to any
other remedy which it may have for possession or damages, enter upon and take
possession of the Premises and expel or remove Tenant and any other person who
may be occupying the Premises or any part thereof by any lawful means without
being liable for prosecution or any claim for damages therefor and Tenant agrees
to pay to Landlord, as hereinafter set forth in Section 17.2, on demand the
amount of all loss and damage which Landlord may suffer by reason of such
termination, whether through inability to relet the Premises on satisfactory
terms or otherwise.
(c) Enter upon the Premises, by any lawful means without terminating
the Lease or Tenant's right to possession and without being liable for
prosecution or any claim for damages therefor, and do whatever Tenant is
obligated to do under the provisions of this Lease, and Tenant agrees to
reimburse Landlord on demand for any expenses which Landlord may incur in thus
effecting compliance with Tenant's obligations under this Lease, plus an
administrative fee equal to ten percent (10%) of any expenses incurred by
Landlord, and Tenant further agrees that Landlord shall not be liable for any
damages resulting to the Tenant for such action.
(d) Not to re-enter the Premises or terminate the Lease, but to allow
Tenant to remain in possession of the Premises, and bring suit against Tenant to
collect the monthly rents and other charges provided in this Lease as they
accrue. Landlord shall have a right to allow such deficiencies of monthly rents
and other charges provided in this Lease to accumulate and to bring an action on
several or all of the accrued deficiencies at one time. Any such suit shall not
prejudice in any way the right of Landlord to bring a similar action for any
subsequent deficiency or deficiencies.
Tenant agrees that any re-entry into the Premises under the provisions of
subpart (b) of this Section shall not be deemed a termination of the Lease or an
acceptance of the surrender thereof, unless Landlord shall have notified Tenant
in writing that it has so elected to terminate the Lease. Tenant also agrees
that any notice pursuant to an action for forcible detainer or eviction shall
not be deemed to be a termination of the Lease unless Landlord shall have also
notified Tenant in writing that it has so elected to terminate the Lease. Any
election of the remedy provided in subpart (b) of this Section shall not
preclude the subsequent election by Landlord of the remedy under subpart (a) of
this Section.
Should Landlord elect to re-enter the Premises under the provisions of
subparts (a) or (b), Landlord shall make reasonable efforts to relet the
Premises. Nothing herein, however, shall prohibit Landlord from leasing any
other vacant space in the Building before leasing the Premises, or from using
its business judgment in respect to the releasing of the Premises. In this
regard, Landlord shall not be required to relet the Premises in part, rather
than a whole, or for a rental rate less than the rental rate then being offered
to prospective tenants for other space in the Building.
17.2 Should Landlord at any time terminate this Lease or Tenant's right to
possession for an Event of Default, Landlord shall recover from Tenant, and
Tenant shall be liable and pay to Landlord, as damages a sum equal to the
following:
(i) the unpaid monthly rents and other charges provided in this Lease and
which accrued prior to the date of termination;
(ii) an amount equal to the following:
(A) Until Landlord is able, through reasonable efforts, to relet
the Premises under terms satisfactory to Landlord, in its sole
discretion, Tenant shall pay to Landlord on or before the first day
of each calendar month, the monthly rentals and other charges
provided in this Lease. If and after the Premises have been relet by
Landlord, Tenant shall pay to Landlord on the twentieth (20th) day of
each calendar month the difference between the monthly rentals and
other charges provided in this Lease for such calendar month and that
actually collected by Landlord for such month. If it is necessary for
Landlord to bring suit in order to collect any deficiency, Landlord
shall have a right to allow such deficiencies to accumulate and to
bring an action on several or all of the accrued deficiencies at one
time. Any such suit shall not prejudice in any way the right of
Landlord to bring a similar action for any subsequent deficiency or
deficiencies. Any amount collected by Landlord from subsequent
tenants for any calendar month in excess of the monthly rentals and
other charges provided in this Lease, shall be credited to Tenant,
first, in reduction of Tenant's liability for any calendar month for
which the amount collected by Landlord will be less than the monthly
rentals and other charges provided in this Lease and, then, against
Tenant's liability for any other damages of Landlord hereunder, and
Tenant shall have no right to any excess other than the
above-described credits; and
(B) When Landlord desires, Landlord may demand a final
settlement, in which event, Landlord shall have a right to, and
Tenant hereby agrees to pay, the difference between (1) the total
monthly rents and other charges provided in this Lease for the
remainder of the Lease Term, and (2) the fair rental value of the
Premises for such period (determined as of the time of the final
settlement) such difference discounted to present value using the
prime rate published in the Wall Street Journal for the region in
which the Building is located on the date of the final settlement;
and
(iii) all other damages which Landlord may demonstrate it incurred,
including, without limitation, any and all costs of retaking the
Premises, costs of maintaining and preserving the Premises after such
retaking, and costs of reletting the Premises, such as costs to
repair or remodel the Premises and to pay market based leasing
commissions.
If Landlord elects to exercise the remedy prescribed in Section 17.2(ii)(A)
above, this election shall not prejudice Landlord's right at any time thereafter
to cancel said election in favor of the remedy prescribed in Section 17.2(ii)(B)
above.
As used in Article 17, the phrase "the monthly rentals and other charges
provided in this Lease" shall mean the monthly amount of Base Rental plus the
monthly amount of Tenant's Pro Rata Share of Excess Basic Costs. If Landlord
demands a final settlement, then Landlord shall have the right to estimate
Tenant's Pro Rata share of Excess Basic Costs for the remainder of the Lease
Term.
Any past due monthly rents and other charges provided in this Lease shall
bear interest at the Default Interest rate, defined elsewhere in the Lease.
17.3 Upon the occurrence of an Event of Default, Landlord may alter all
locks and security devices at the Premises and will not be obligated to return
the key to Tenant if Landlord has elected either to terminate this Lease under
Section 17.1(a) or permanently repossess the Premises under Section 17.1(b). If
Landlord alters all locks and security devices at the Premises because of an
Event of Default without electing either to terminate this Lease or permanently
repossess the Premises, then Landlord shall return the key to Tenant only during
the regular business hours of Landlord's property manager and only in the event
Tenant has paid the rent or otherwise performed the obligations necessary to
cure the Event of Default and, further, Tenant provides reasonable assurances to
Landlord evidencing Tenant's ability to perform its remaining obligations under
this Lease. In the event Landlord alters the locks and the keys are not returned
to Tenant, then, upon the prior written request of Tenant accompanied by such
releases and waivers as Landlord may require, Landlord, at its option, may (i)
escort Tenant to the Premises to retrieve personal belongings and other property
not subject to Landlord's lien and security interest, or (ii) obtain from Tenant
a list of such personal belongings and personal property and advise Tenant of a
time and place where such items will be made available to Tenant. If Landlord
elects the lallcr option, then Tenant shall reimburse to Landlord the cost of
moving and/or storing the items prior to Landlord's making same available to
Tenant.
17.4 Should Landlord re-enter and take possession of the Premises, Landlord
may, with respect to any and all furniture, fixtures, equipment and other
personal property remaining on the Premises, exercise one or more of the
following rights: (i) sell the personal property pursuant to any
lien retained by Landlord; (ii) remove the personal property from the Premises
(without the necessity of obtaining a distress warrant, writ of sequestration or
other legal process) and place same in storage and, in such event, Tenant shall
be liable to Landlord for costs incurred by Landlord in connection with such
removal and storage and shall indemnify and hold Landlord harmless from all
loss, damage, cost, expense and liability in connection with such removal and
storage; or (iii) dispose of any of the personal property. Should Landlord elect
to dispose of any of the personal property, whether or not such personal
property was first placed in storage, Landlord shall give Tenant written notice
at Tenant's last known address advising Tenant that Landlord will dispose of the
personal property unless Tenant retrieves same within five (5) days from the
date of the notice and pays to Landlord any costs incurred for storage and/or
removal. Landlord shall also have the right to relinquish possession of all or
any portion of such personal property to any person claiming to be entitled to
possession thereof who presents to Landlord a copy of any instrument represented
to Landlord by such person to grant such person the right to take possession of
such personal property, without the necessity on the part of Landlord to inquire
into the authenticity of the copy of the instrument or of Tenant's or Tenant's
predecessor's signature thereon and without the necessity of Landlord's making
any nature of investigation or inquiry as to the validity of the factual or
legal basis upon which such person purports to act; and Tenant agrees to
indemnify and hold Landlord harmless from all cost, expense, loss, damage and
liability incident to Landlord's relinquishment of possession of all or any
portion of such furniture, fixtures, equipment of other personal property to the
person. The rights of Landlord herein stated shall be in addition to any and all
other rights which Landlord has or may hereafter have a law or in equity, and
Tenant Stipulates and agrees that the rights herein granted Landlord are
commercially reasonable. Tenant knowingly and irrevocably waives any claims it
may have against Landlord arising from Landlord's removal and storage of
Tenant's personal property in accordance with the provisions of this paragraph.
17.5 No re-entry or taking possession of the Premises by Landlord shall be
construed as an election on its part to terminate this Lease, unless a written
notice of such intention shall be given to Tenant. Notwithstanding any such
re-entry or taking possession of the Premises, Landlord may at any time
thereafter elect to terminate this Lease by reason of the Event of Default.
Pursuit of any office remedies set forth in Article 17 shall not preclude
pursuit of any of the other remedies in Article 17 or any others provided in
this Lease or any other remedies provided by law or in equity. The specific
remedies to which Landlord may resort under this Lease are cumulative and are
not intended to be exclusive of any other remedies to which Landlord may be
lawfully entitled in case of a breach or threatened breach of the Lease. In
addition to any other remedies provided in the Lease, Landlord shall be entitled
to seek injunctive relief to restrain any violation or threatened violation of
the covenants, conditions or provisions of this lease or to compel specific
performance. The pursuit of any remedy provided in this Lease shall not
constitute a forfeiture or waiver of any rent due to Landlord under this Lease
or of any damages accruing to Landlord by reason of the violation of any of the
terms, provisions and covenants contained in this Lease. Landlord's acceptance
of rent following an Event of Default hereunder shall not be construed as
Landlord's waiver of such Event of Default unless such waiver is expressly
stated in writing signed by Landlord. No waiver by Landlord of any violation or
breach of the terms, provisions, and covenants of the Lease shall be deemed or
construed to constitute a waiver of any other violation or breach of any of the
terms, provisions, and covenants of the Lease. No consent by Landlord to any act
of Tenant under this Lease shall be deemed to waive or render unnecessary
consent to any subsequent or similar act. Forbearance by Landlord to enforce one
or more of the remedies herein provided upon an Event of Default shall not be
deemed or construed to constitute a waiver of any other violation or Event of
Default.
17.6 Landlord and Tenant hereby irrevocably waive, to the extent permitted
by law, any right to trial by jury in any lawsuit, action, proceeding, or
counterclaim brought by either party hereto against the other on any matter
arising out of or connected with this Lease, the acts or omissions of Landlord
or Tenant in connection with this Lease, or Tenant's occupancy and use of the
Premises and the Building.
17.7 Except as provided for herein, Tenant shall not for any reason
withhold or reduce Tenant's required payments of rent and other charges provided
in this Lease, it being agreed that the obligations of Landlord under this Lease
are independent of Tenant's obligations except as may be otherwise expressly
provided. The immediately preceding sentence shall not be deemed to deny Tenant
the pursuit of all rights granted it under this Lease or at law; however, at the
direction of Landlord, Tenant's claims in this regard shall be litigated in
proceedings different from any litigation involving rent claims or other claims
by Landlord against Tenant (i.e., each party may proceed to a
separate judgment without consideration, counterclaim or offset as to the claims
asserted by the other party).
17.8 In the event of any default described in subsection (d) of Section
16.1 of this Lease, any assumption and assignment must conform with the
requirements of the Bankruptcy Code which provides, in part, that the Landlord
must be provided with adequate assurance of the following: (i) that the proposed
assignee has sources to pay monthly rents and any other charges due under this
Lease; (ii) that the financial condition and operating performance of any
proposed assignee and its guarantors, if any, shall be similar to the financial
condition and operating performance of Tenant and its guarantors, if any, as of
the date of execution of this Lease; (iii) that any percentage rent due under
this Lease will not decline substantially; (iv) that any assumption or
assignment is subject to all of the provisions of this Lease (including, but not
limited to, restrictions as to use) and will not breach any such provision
contained in any other Lease, financing agreement or other agreement relating to
the Building; and (v) that any assumption or assignment will not disrupt any
tenant mix or balance in the Building.
(a) In order to provide Landlord with the assurance contemplated by
the Bankruptcy Code, Tenant must fulfill the following obligations, in addition
to any other reasonable obligations that Landlord may require, before any
assumption of this Lease is effective: (i) all defaults under subsection (a) of
Section 16.1 of this Lease must be cured within ten (10) days after the date of
assumption; (ii) all other defaults under Section 16.1 of this Lease other than
under subsection (d) of Section 16.1 must be cured within ten (10) days after
the date of assumption; (iii) all actual monetary losses incurred by Landlord
(including, but not limited to, reasonable attorneys' fees) must be paid to
Landlord within ten (10) days after the date of assumption; and (iv) Landlord
must receive within ten (10) days after the date of assumption a Security
Deposit in the amount of six (6) months Base Rental (using the Base Rental in
effect for the first full month immediately following the assumption) and an
advance prepayment of Base Rental in the amount of three (3) months Base Rental
(using the Base Rental in effect for the first full month immediately following
the assumption), both sums to be held by Landlord in accordance with the other
provisions of this Lease, including, without limitation, Section 4.3, and deemed
to be rent under this Lease for the purposes of the Bankruptcy Code as amended
and from time to time in effect.
(b) In the event this Lease is assumed in accordance with the
requirements of the Bankruptcy Code and this Lease, and is subsequently
assigned, then, in addition to any other reasonable obligations that Landlord
may require and in order to provide Landlord with the assurances contemplated by
the Bankruptcy Code, Landlord shall be provided with the following: (i) a
financial statement of the proposed assignee prepared in accordance with
generally accepted accounting principles consistently applied, though on a cash
basis, which reveals a net worth in an amount sufficient, in Landlord's
reasonable judgment, to assure the future performance by the proposed assignee
of Tenant's obligations under this Lease; or (ii) a written guaranty by one or
more guarantors with financial ability sufficient to assure the future
performance of Tenant's obligations under this lease, such guaranty to be in
Form and content satisfactory to Landlord and to cover the performance of all of
Tenant's obligations under this Lease.
ARTICLE 18
LANDLORD'S DEFAULT
18.1 Landlord shall be in default under the Lease if Landlord has not begun
and pursued with reasonable diligence the cure of any failure of Landlord to
meet its obligations under the Lease within thirty (30) days of the receipt by
Landlord of written notice from Tenant of the alleged failure to perform. Tenant
hereby waives any right to terminate or rescind this Lease as a result of
Landlord's default as to any covenant or agreement contained in this Lease or as
a result of the breach of any promise or inducement hereof, whether in this
Lease or elsewhere and Tenant hereby agrees that Tenant's sole remedies for
default hereunder and for breach of any promise or inducement shall be limited
to a suit for damages and/or injunctive relief. In addition, Tenant hereby
covenants that, prior to the exercise of any such remedies, it will give the
mortgagees holding mortgages on the Building notice and a reasonable time to
cure any default by Landlord.
18.2 The liability of Landlord to Tenant and Tenant to Landlord for any
default by Landlord under the terms of this Lease shall be limited to Tenant's
or Landlord's actual direct, but not consequential, damages therefor. Tenant
agrees to look solely to the estate and interest of Landlord in the Building for
the collection of any judgment or other judicial process requiring the payment
of money by Landlord in the event of a default or breach by Landlord with
respect to this
Lease, and no other assets of Landlord shall be subject to levy of execution or
other procedures for the satisfaction of Tenant's rights. This section shall not
be deemed to limit or deny any remedies which Tenant may have in the event of
default by Landlord hereunder which do not involve the personal liability of
Landlord.
ARTICLE 19
LANDLORD'S CONTRACTUAL LIEN
Landlord agrees to waive all statutory lien rights it may have against
property owned or held by Tenant.
ARTICLE 20
SURRENDER OF PREMISES; HOLDING OVER
20.1 No act by Landlord shall be deemed an acceptance of a surrender of the
Premises, and no agreement to accept a surrender of the Premises shall be valid
unless the same is made in writing and signed by Landlord. At the expiration or
termination of this Lease, Tenant shall deliver to Landlord the Premises
"broom-clean" and with all improvements located thereon in good repair and
condition, reasonable wear and tear and condemnation and fire or other casualty
damage excepted, and shall deliver to Landlord all keys to the Premises.
Provided that Tenant has performed all of its obligations hereunder, Tenant may
remove all unattached trade fixtures, furniture, and personal property placed in
the Premises by Tenant (but Tenant shall not remove any such item which was paid
for, in whole or in part, by Landlord). Additionally, Tenant shall remove such
alterations, additions, improvements, trade fixtures, equipment, wiring, and
furniture as Landlord has provided notice to Tenant at installation of the
Landlord's requirement for removal thereof. Tenant shall repair all damage
caused by such removal. All items not so removed upon the expiration or
termination of the lease shall be deemed to have been abandoned by Tenant and
may be appropriated, sold, stored, destroyed, or otherwise disposed of by
Landlord at any time, thereafter, without notice to Tenant and without any
obligation to account for such items. If Landlord incurs any cost in the storage
or removal of any such items, Tenant shall pay to Landlord on demand any and all
such charges. The provisions of this paragraph shall survive the expiration or
termination of the Lease.
20.2 If Tenant, or any party under Tenant claiming rights to the Lease,
fails to vacate the Premises at the end of the Lease Term, then such possession
shall be an unlawful detainer (Landlord reserving the right to seek an eviction
or removal), no tenancy shall be created, and Tenant shall pay each day during
any holdover period a daily Base Rental equal to the greater of (a) one
thirtieth (1/30th) of one hundred fifty percent (150%) of the monthly Base
Rental payable during the last month of the Lease Term, or (b) the prevailing
rental rate for similar space in the Building, plus, Tenant shall pay any
additional rental due under the other provisions of this Lease during any such
holdover period. In addition to payment of rent, Tenant shall pay to Landlord
all other damages to which Landlord may be entitled as a result of Tenant's
holding over.
ARTICLE 21
RIGHT OF ACCESS
21.1 Upon reasonable prior notice to Tenant Landlord or Landlord's
representatives shall have the right to enter into and upon the Premises at any
and all reasonable times (i) to inspect, clean or make repairs or alterations or
additions to the Premises as Landlord may deem necessary (but without any
obligation to do so, except as expressly provided elsewhere in the Lease), or
(ii) to show the Premises to prospective tenants, purchasers or lenders; and
Tenant shall not be entitled to any abatement or reduction of rent by reason
thereof, nor shall any such entry be deemed to be an actual or constructive
eviction. Landlord shall make reasonable efforts not to interfere with Tenant's
conduct of business by reason of any such entry by Landlord.
ARTICLE 22
SUBSTITUTION SPACE
Intentionally omitted.
ARTICLE 23
MISCELLANEOUS
23.1 Attorneys' Fees. In case it should be necessary or proper for one
party to bring an action under this Lease against the other, then the party
which does not prevail agrees in each and any such case to pay to the party
which prevails its reasonable attorneys' fees. Furthermore, should it be
necessary for Landlord to consult an attorney for the enforcement of any of
Landlord's rights hereunder (including seeking payment of any amounts due under
the Lease) without the necessity of bringing an action, then Tenant,
nonetheless, agrees in such event to pay to Landlord its reasonable attorneys'
fees.
23.2 Taxes. Tenant shall be liable for all taxes levied or assessed against
personal property, furniture, or fixtures placed by Tenant in the Premises. If
any taxes for which Tenant is liable are levied or assessed against Landlord or
Landlord's property and Landlord elects to pay the same, or if the assessed
value of Landlord's property is increased by inclusion of such personal
property, furniture or fixtures and Landlord elects to pay the taxes based on
Such increase, then Tenant shall pay to Landlord, upon demand, that part of such
taxes for which Tenant is primarily liable hereunder.
23.3 Name. Tenant shall not, without the written consent of Landlord, use
the name of the Building for any purpose other than as the address of the
business to be conducted by Tenant in the Premises. In no event shall Tenant
acquire any rights in or to such name and Landlord reserves the right from time
to time and at any time to change the name of the Building.
23.4 Financial Statements. Prior to the execution of this Lease, Tenant has
delivered financial statements to Landlord, prepared by a certified public
accountant and certified to be true and correct in all material aspects. Tenant
further agrees to deliver to Landlord Tenant's most recently updated financial
statements within ten (10) days of Landlord's written request (but not more
often the annually, unless an Event of Default has occurred, whereupon this
restriction shall not apply), each financial statement certified to be true and
correct in all material aspects by an authorized person on behalf of Tenant.
23.5 Brokerage. Landlord and Tenant each warrant to the other that it has
not dealt with any broker or agent in connection with the negotiation or
execution of this Lease, other than the person(s) listed in the Basic
Definitions and Lease Provisions of this Lease (the "Broker(s)"). Except for any
Broker(s) who shall be compensated in accordance with the provisions of a
separate agreement, Landlord and Tenant each agree to indemnify the other
against all costs, expenses, attorneys' fees, and other liability for
commissions or other compensation claimed by any other broker or agent claiming
the same by, through, or under the indemnifying party.
23.6 Quiet Enjoyment. Provided Tenant has performed all of the terms and
conditions of this Lease to be performed by Tenant, Tenant shall peaceably and
quietly hold and enjoy the Premises for the Term, without hindrance from
Landlord or any party claiming by, through, or under Landlord, subject to the
terms and conditions of this Lease.
23.7 Force Majeure. Whenever a period of time is herein prescribed for
action to be taken by either party hereto, such party shall not be liable or
responsible for, and there shall be excluded from the computation for any such
period of time, delays due to strikes, riots, acts of God, shortages of labor or
materials, war, governmental laws, regulations, or restrictions, or any other
causes of any kind whatsoever which are beyond the control of such party. The
foregoing shall not excuse, however, the timely payment of rent by Tenant under
the provisions of this Lease.
23.8 Notices. All notices and other communications given by one party to
the other under the provisions of this Lease shall be in writing, addressed to
the party at the address provided in the Basic Definitions and Lease Provisions,
and shall be by one of the following: (i) mailed by first class, United States
Mail, postage prepaid, certified, with return receipt requested, (ii) hand
delivered by courier to the intended address, or (iii) sent by prepaid telegram,
cable, facsimile transmission, or telex followed by a confirmatory letter or
(iv) reputable overnight courier services. Notice sent by certified mail shall
be effective three (3) days after being deposited in the United States Mail; all
other notices shall be effective upon delivery to the address of the addressee.
The parties hereto may change their addresses by giving notice thereof to the
other in conformity with this provision.
23.9 Joint and Several Liability. If there is more than one Tenant, then
the obligations hereunder imposed upon Tenant shall be joint and several. If
there is a guarantor of Tenant's obligations hereunder, then the obligations
hereunder imposed upon Tenant shall be the joint and several obligations of
Tenant and such guarantor, and Landlord need not first proceed against Tenant
before proceeding against such guarantor nor shall any such guarantor be
released from its guaranty for any reason whatsoever.
23.10 Severability. If any clause or provision of this Lease is illegal,
invalid, or unenforceable under present or future laws, then the remainder of
this Lease shall not be affected thereby and in lieu of such clause or
provision, there shall be added as a part of this Lease a clause of provision as
similar in terms to such illegal, invalid, or unenforceable clause or provision
as may be possible and be legal, valid, and enforceable.
23.11 Amendments; Construction and Binding Effect. This Lease may not be
amended except by instrument in writing signed by Landlord and Tenant. No
provision of this Lease shall be deemed to have been waived by Landlord unless
such waiver is in writing signed by Landlord, and no custom or practice which
may evolve between the parties in the administration of the terms thereof shall
waive or diminish the right of Landlord to insist upon the performance by Tenant
in strict accordance with the terms hereof. The terms and conditions contained
in this Lease shall inure to the benefit of and be binding upon the parties
hereto, and upon their respective successors in interest and legal
representatives, except as otherwise herein expressly provided. This Lease is
for the sole benefit of Landlord and Tenant, and, other than Landlord's
Mortgagee or a successor thereto, no third party shall be deemed a beneficiary
hereof.
23.12 Captions. The captions contained in this Lease are for convenience of
reference only, and do not limit or enlarge the terms and conditions of this
Lease.
23.13 Recording. Tenant shall not record or permit to be recorded in the
official records of the county where the Premises are located the Lease or any
memorandum of lease or other document giving notice of the existence of the
Lease.
23.14 Time of Essence. Except as otherwise expressly provided in this
Lease, time is of the essence.
23.15 Governing Law; Venue. The laws of the state in which the Building is
located shall govern the interpretation, validity, performance and enforcement
of this Lease. Venue for any action under this Lease shall be the county in
which the building is located.
23.16 Authority. If either party is a corporation or partnership, the
person executing the Lease on behalf of such party hereby represents and
warrants that (i) he is duly authorized and empowered to execute the Lease on
behalf of such party, (ii) Tenant has full right and authority to enter into
this Lease, and (iii) upon full execution, this Lease constitutes a valid and
binding obligation of such party.
23.17 Approval. Any approval of Landlord required under the provisions of
this Lease must be in writing or it shall not be deemed to be effective and, if
not in writing, then in the making of proof thereof, Landlord shall be presumed
not to have given its approval.
23.18 No Merger. There shall be no merger of the leasehold estate hereby
created with the fee estate in the Premises or any part thereof if the same
person acquires or holds, directly or indirectly, this Lease or any interest in
this Lease and the fee estate in the Premises or any interest in such fee
estate.
23.19 No Partnership. Nothing in this Lease shall be deemed or construed by
the parties hereto, nor by any third party, as creating the relationship of
principal and agent or of partnership or of joint venture between the parties
hereto, it being understood and agreed that neither the method of computation of
rent, nor any other provision contained herein, nor any acts of the parties
hereto, shall be deemed to create any relationship between the parties hereto
other than the relationship of landlord and tenant.
23.20 No Offer. The submission of this Lease by Landlord to Tenant for
examination shall not be construed as an offer to lease or a reservation of an
option to lease. Further, it is the intention of the parties that Landlord shall
not be bound and Tenant shall not have any rights under this Lease unless and
until Landlord executes a copy of this Lease and delivers it to Tenant.
23.21 Exhibits. All exhibits and attachments attached hereto are
incorporated herein by this reference. [Check all boxes which apply. Boxes not
checked are of exhibits that do not apply.]
Exhibit A - Legal Description [X]
Exhibit B - Outline of Premises [X]
Exhibit C - Operating Expense Reimbursement [X]
Exhibit D - Building Rules and Regulations [X]
Exhibit E - Work Letter [X]
Exhibit F - Commencement Date Letter [X]
Exhibit G - Financing Statement [ ]
Exhibit H - Parking [X]
Exhibit I - Signage [X]
Exhibit J - Renewal Option [X]
Exhibit K - Right of First Refusal [ ]
Exhibit L - Guaranty of Lease [ ]
23.22 Entire Agreement. This Lease, including all exhibits attached hereto,
constitutes the entire agreement between Landlord and Tenant regarding the
subject matter hereof and supersedes all oral statements and prior writings
relating thereto. Except for those set forth in this Lease, no representations,
warranties, or agreements have been made by Landlord, Landlord's agent or
Tenant, anyone of the foregoing to the other with respect to this Lease or the
obligations to Landlord or Tenant in connection therewith.
23.23 Cancellation Option. Tenant and any Related Transferee is hereby
granted the option to cancel or terminate this Lease at the end of the thirty
sixth (36th) month after the Commencement Date (the "Cancellation Date") on the
following terms: (1) an Event of Default is not outstanding, (2) Tenant has
notified Landlord in writing a minimum of six (6) months prior to the
Cancellation Date of its desire to terminate the Lease on the Cancellation Date,
(3) Tenant has paid to Landlord at the time of delivery of the notice of
cancellation a cancellation fee of $100,000.00 plus an amount equal to the
unamortized portion of the commisions, tenant improvement allowance, and any
sublease termination fee (as described in Section 24.2, below) paid by Landlord
on this Lease. (Amortization shall be monthly over sixty (60) months, beginning
on the Commencement Date) and shall be set forth in all agreement between
Landlord and Tenant to be executed within sixty (60) days after the Commencement
Date. The option granted herein is one-time option and shall become null and
void if not exercised timely, time being of the essence.
ARTICLE 24
SPECIAL PROVISIONS
24.1 Temporary Premises. Reference is made to the fact that the Premises
are currently occupied and shall not be available prior to April 30, 2001 for
the construction of tenant improvements in accordance with the provisions of
Exhibit "E". Tenant desires to lease from Landlord temporary space (identified
- -----------
below) until such time as the Premises are delivered to Tenant. Accordingly,
Landlord hereby agrees to lease the Temporary Premises to Tenant and Tenant
agrees to rent and lease the Temporary Premises from Landlord on the terms set
forth below and otherwise in accordance with the provisions of this Lease:
Temporary Premises: 1,829 square feet of rentable area located in Suite 101,
1202 E. Arapaho Rd., Richardson, Texas
Lease Term: Commencing on December 15, 2000 and continuing
until the Premises are delivered to Tenant in accordance
with the terms of this Lease; provided, that Tenant may
extend the term of the temporary space on a
month-to-month basis on the same terms for up to an
additional one (1) month.
Base Rental: The monthly Base Rental shall be $2,286.25.
Additional Rental: Basic Costs utilized in the calculation of any Excess
(as described in Exhibit "C") for the Temporary
-----------
Premises shall be those actual costs for calendar year
2000.
Security Deposit: $2,286.25, payable upon execution of the Lease. The
Security Deposit for the Temporary Premises shall be
separate from that for the Premises and shall be
returned to Tenant upon expiration of the Lease Term for
the Temporary Premises unless otherwise applied as
permitted in accordance with the provisions of Section
4.3.
Leasehold Improvements: Landlord shall deliver and Tenant shall take the
Temporary Premises in "AS IS" "WHERE IS" condition and
with all faults. Landlord shall have no obligation to
make any alterations, modifications or repairs to the
Temporary Premises, except those repairs otherwise
required of Landlord under Section 10.1 of this Lease.
24.2 Subleased Premises. Reference is made to the fact that Tenant is
currently subleasing space from Family Guidance Center at 1222 E. Arapaho Rd.,
Suite 102, Richardson, Texas ("Subleased Premises"). Tenant has represented to
Landlord that Tenant has the option to terminate the sublease for the Subleased
Premises upon payment of the sum of $4,781.00 to the Family Guidance Center on
or before February 1, 2001. In the event Tenant elects to terminate the
sublease, it shall notify Landlord and provide Landlord with a copy of its
written correspondence electing to terminate, together with a copy of its
payment to the Family Guidance Center. Within thirty (30) days of the
Commencement Date of the Lease for the Premises, and provided no Event of
Default is outstanding hereunder, Landlord shall reimburse to Tenant the sum of
$4,781.00 to compensate for its payment to terminate the sublease.
24.3 Existing Lease. Reference is made to the fact that Tenant is currently
leasing 2,889 square feet of space from Landlord located at 1202 E. Arapaho,
Suite 102, Richardson, Texas ("Existing Premises") under that certain Lease
Agreement between Landlord and Tenant, dated May 26, 1998 ("Existing Lease").
Landlord and Tenant hereby agree to terminate the Existing Lease on the
Commencement Date of this Lease for the Premises (as opposed to the Commencement
Date for the Temporary Premises). Notwithstanding any termination of the
Existing Lease, Tenant shall continue to perform all of its obligations under
the Existing Lease and be obligated thereunder for all liabilities that accrue
prior to the date of termination. Tenant shall deliver the Existing Premises to
Landlord on the date of termination "broom clean" and in good condition and
repair, ordinary wear and tear and casualty excepted, and otherwise in
accordance with the provisions of the Existing Lease as they pertain to
surrender of the Existing Premises. Tenant shall also be liable for any holdover
following the termination of the Existing Lease, as provided therein.
Conversely, Landlord shall be obligated to return any security deposit under the
Existing Lease, save and except to the extent Landlord had the right to utilize
same in accordance with the provisions of the Existing Lease.
24.4 Right to Vacate. In the event Tenant elects to vacate the Premises, it
will notify Landlord thirty (30) days prior thereof. If the vacating is other
than for purposes of remodeling or due to a casualty, then, at any time after
receipt of such notice from Tenant, Landlord may terminate this Lease by giving
Tenant written notice electing to recapture the Premises and this Lease will
terminate, effective the later of the date Tenant notified Landlord that it
would vacate the Premises or thirty (30) days from the date of such notice from
Landlord. In the case of a remodeling, Tenant may not vacate the Premises for
longer than ninety (90) days, or if so, then Landlord's right to recapture the
Premises under this paragraph shall arise after the 90th day and before Tenant
re-occupies the Premises.
(Signature Page Follows)
EXECUTED to be effective on the day and date first written above.
LANDLORD:
AETNA LIFE INSURANCE COMPANY,
a Connecticut Corporation
By: UBS REALTY INVESTORS, L.L.C.,
(f/k/a Allegis Realty Investors LLC),
a Massachusetts Limited Liability
Company,
Its Agent and Investment Advisor
By /s/ Joseph E. Gaukler
--------------------------------------
Name: Joseph E. Gaukler
Title: Director
TENANT:
STANFORD MICRODEVICES, INC.
a Delaware Corporation
By: /s/ Thomas J. Scannell
--------------------------------------
Printed Name: Thomas J. Scannell
-----------------------------
Title: V.P. Finance & Administration
------------------------------------
EXHIBIT "A"
LEGAL DESCRIPTION
Arapaho Business Park X
- -----------------------
BEING a tract of land situated and the J. C. Skiles Survey, Abstract No. 1371
and the Baurch Cantrell Survey, Abstract No. 265, City of Richardson, Dallas
County, Texas, and also being all of Lot 4, Block 2 of the replat of Block 2 of
Arapaho Business Park, an addition to the City of Richardson as recorded in
Volume 80011, Page 2276, Deed Records, Dallas County, Texas and being more
particularly described as follows:
BEGINNING at the point of intersection of the West R.O.W. line of Presidential
Drive (a 60' R.O.W.) with the South R.O.W. line of Arapaho Road (a 100' R.O.W.);
THENCE, South along the said West R.O.W. line of Presidential Drive a distance
of 411.49 feet to a point for corner;
THENCE S 89 44'50" W, a distance of 587.85 feet to a point for comer located on
the East R.O.W. line of Glenville Drive (a 80' R.O.W.);
THENCE N 0 15' 10" W, along the said East R.O.W. line of Glenville Drive a
distance of 394.07 feet to an angle point;
THENCE North a distance of 20.0 feet to a point for corner;
THENCE East along the said South R.O.W. line of Arapaho Road a distance of
589.59 feet to the POINT OF BEGINNING and containing 243,026 square feet or 5.58
acres of land, more or less.
EXHIBIT "B"
OUTLINE OF PREMISES
[GRAPH OMITTED]
EXHIBIT "C"
OPERATING EXPENSE REIMBURSEMENT
This Exhibit is attached to and made a part of the Lease by and between
AETNA LIFE INSURANCE COMPANY ("Landlord") and STANFORD MICRODEVICES, INC.
("Tenant").
A. Tenant shall pay Tenant's Pro-Rata Share of the excess ("Excess") of
actual Basic Costs for a calendar year over (whichever one of the following is
completed shall be applicable):
(i) the actual Basic Costs for the calendar year 2001 (grossed up to
----
95% occupancy for the entire year), or
(ii) the sum of $ per square foot of rentable area
---------
(the "Expense Stop"). Landlord may make a good faith estimate of the Excess
for any calendar year or part thereof during the Lease Term, and, Tenant shall
pay to Landlord as additional rent along with each monthly payment of Base
Rental all amount equal to the estimated Excess for such calendar year or part
thereof divided by the number of months in such calendar year during the Lease
Term. From time to time during any calendar year, Landlord may revise its
estimate of the Excess and deliver a copy of the revised estimate to Tenant.
Thereafter, the monthly installments of Excess payable by Tenant shall be
appropriately adjusted. In no event will the provisions of Exhibit "C" serve to
reduce the monthly Base Rental. Notwithstanding the foregoing, for purposes of
determining Tenant's Pro Rata Share of the Excess, Controllable Basic Costs (as
defined below) for any calendar year will be deemed not to increase over the
amount of the prior year's actual or limited costs (whichever is lower) by more
than 10%. The term "Controllable Basic Costs" means all Basic Costs except costs
and expenses for taxes, insurance, and utilities.
B. Landlord will maintain books and records of all Basic Costs in
accordance with generally accepted accounting for similar types of properties,
applied on a consistent basis. After the end of every calendar year Landlord
will deliver to Tenant a statement ("Annual Cost Statement") setting forth the
actual Basic Costs for the prior calendar year, the actual amount of any Excess
for the prior calendar year, and Tenant's Pro Rata Share. If Tenant owes all
additional amount of Excess over the estimated payments made during the prior
calendar year, this will also be noted in the Annual Cost Statement and Tenant
will pay such amount, as additional rent, with the next due installment of Base
Rental. If the Annual Statement reflects all overpayment, then Landlord will
credit the amount of the overpayment against the next due installments of
additional rent payable under the provisions of this Exhibit "C", or if the
Lease Term has expired, Landlord will refund the difference to Tenant.
Other than as set forth in Section 23.23, notwithstanding any expiration or
earlier termination of this Lease, Tenant's obligation to pay Tenant's Pro Rata
Share of any Excess shall survive any expiration or termination of this Lease.
C. The term "Basic Costs" shall mean all expenses and disbursements of
every kind (subject to the limitations set forth below) which Landlord incurs,
pays or becomes obligated to pay in connection with the ownership, operation,
management, repair and maintenance (including replacement thereof) of the
Building, including, but not limited to, the following:
(a) Wages and salaries of all employees engaged in the operation,
repair, replacement, and maintenance of the Building, including taxes, insurance
and benefits relating thereto. (The wages and salaries of those employees
spending a portion of their time working at the Building shall be allocated to
Basic Costs based on the portion of time working at the Building.);
(b) All supplies and materials used in the operation, maintenance,
repair, replacement, and security of the Building;
(c) Annual cost of all capital improvements made to the Building which
although capital in nature call reasonably be expected to reduce the normal
operating costs of the Building, as well as all capital improvements made to
comply with any legal requirements, insurance requirements or environmental laws
which become effective after the date of this Lease, or to benefit or increase
the safety and security of the Building, as amortized over the useful economic
life of such improvements as determined by Landlord in its reasonable discretion
(without regard to the period over which such improvements may be depreciated or
amortized for federal income tax purposes), and the amortized portion, together
with interest on the unauthorized portion of such improvements or expenditures
at an interest rate equal to two percent (2%) over the interest rate payable on
United States Treasury securities having a maturity comparable to the period of
the amortization at the time Landlord incurred the cost, shall be included in
operating expenses in the year in which the costs are incurred and in any
subsequent years, during the term of the lease;
(d) Cost of all utilities, other than the cost of utilities actually
reimbursed to Landlord by individual tenants, or those costs of major users (in
excess of a typical tenant) which are not reimbursed to Landlord by such tenant;
(e) Cost of any insurance or insurance related expense applicable to
the Building and Landlord's personal property used in connection therewith,
including without limitation, the premiums for public liability coverage, fire
and extended coverage, and rental loss coverage;
(f) All taxes and assessments and governmental charges whether
federal, state, county or municipal, and whether they be by taxing districts or
authorities presently taxing or by others, subsequently created or otherwise,
and any other taxes and assessments attributable to the Building (or its
operation), and the grounds, parking areas, driveways, and alleys around the
Building, excluding, however, federal and state taxes on income (collectively,
"Taxes"); if the present method of taxation changes so that in lieu of the whole
or any part of any Taxes levied on the Landlord or Building, there is levied on
Landlord a capital tax directly on the rents received therefrom or a franchise
tax, assessment, or charge based, in whole or in part, upon such rents for the
Project and in lieu of the present method of taxation, then all such taxes,
assessments, or charges, or the part thereof so based, shall be deemed to be
included within the term "Taxes" for the purposes hereof;
-2-
(g) Cost of repairs, replacements, and general maintenance of the
Building; and
(h) Cost of service or maintenance contracts with independent
contractors for the operation, maintenance, repair, replacement, or security of
the Building (including, without limitation, alarm service, window cleaning, and
elevator maintenance). (Nothing herein is intended to obligate Landlord to
provide any security for the Building.)
There are specifically excluded from the definition of the term "Basic
Cost" costs for the following:
(1) Capital improvements made to the Building, other than capital
improvements described above in this Exhibit "C" and except for items which,
though capital for accounting purposes, are properly considered maintenance and
repair items, such as painting of common areas, replacement of carpet in
elevator lobbies, and the like;
(2) Repair, replacements and general maintenance paid by proceeds of
insurance or by Tenant or other third parties, and alterations attributable
solely to tenants of the Building other than Tenant;
(3) Debt service on loans to Landlord;
(4) Depreciation of the Building;
(5) Leasing commissions;
(6) Legal expenses, other than those incurred for the general benefit
of the Building's tenants (e.g., tax disputes);
(7) Wages and salaries and benefits of employees above the level of
Building manager;
(8) renovating or otherwise installing tenant improvements for
occupants of the Building; and
(9) correcting defects in the construction of the Building.
D. With respect to any calendar year or partial calendar year in which the
Building is not occupied to the extent of 95% of the rentable area thereof, the
Basic Costs for such period shall, for the purposes hereof, be increased to the
amount which would have been incurred had the Building been occupied to the
extent of 95% of the rentable area.
-3-
EXHIBIT "D"
RULES AND REGULATIONS
This Exhibit is attached to and made a part of the Lease by and between
AETNA LIFE INSURANCE COMPANY ("Landlord") and STANFORD MICRODEVICES, INC.
("Tenant").
A. The following rules and regulations shall apply to the Building,
including, without limitation the Premises:
2. Sidewalks, doorways, vestibules, halls, stairways, and other similar
areas shall not be obstructed by Tenant or used by any Tenant for purposes other
than ingress and egress to and from its Premises. No rubbish, litter, trash, or
material of any nature shall be placed, emptied, or thrown in those areas. At no
time shall Tenant permit Tenant's employees to loiter in common areas or
elsewhere in or about the Building.
3. Plumbing, fixtures and appliances shall be used only for the purposes
for which designed, and no sweepings, rubbish, rags or other unsuitable material
shall be thrown or deposited therein. Damage resulting to any such fixtures or
appliances from misuse by Tenant or its agents, employees or invitees, shall be
paid by such Tenant.
4. No signs, advertisements or notices shall be painted or affixed on or to
any windows or doors or other part of the Building without the prior written
consent of Landlord, which consent shall not be unreasonably withheld. No nails,
hooks or screws shall be driven or inserted in any part of the Building except
by personnel of Landlord or retained by Landlord. No curtains or other window
treatments shall be placed on the glass, without Landlord's prior approval. No
lighting which may be visible from the exterior of the Premises may be utilized
without Landlord's prior approval.
5. Landlord may provide and maintain an alphabetical directory for all
tenants in the main lobby of the Building.
6. Landlord shall provide all door locks in Tenant's Premises, at the cost
of Tenant, and Tenant shall not place any additional door locks in its Premises
without Landlord's prior written consent, which consent shall not be
unreasonably withheld. Landlord shall furnish to Tenant a reasonable number of
keys to the door lock's in Tenant's Premises free of cost and additional keys,
at Tenant's cost. Tenant shall not make a duplicate of any key. All keys are to
be returned to Landlord at the expiration or earlier termination of this Lease.
7. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of any merchandise or materials which require use
of elevators or stairways, common area loading docks or movement through the
Building entrances or lobby shall be conducted under Landlord's supervision at
such times and in such a manner as Landlord may reasonably require. At the time
of seeking Landlord's approval, Tenant shall provide to Landlord, in writing, a
detailed listing of the activity. Tenant assumes all risks of and shall be
liable for all
damage to articles moved and injury to persons resulting from such activity. If
any equipment, properly and personnel of Landlord are damaged or injured as a
result of acts in connection with this activity, then Tenant shall be solely
liable for any and all damage or loss resulting therefrom.
8. Landlord may prescribe weight limitations and determine the locations
for safes and other heavy equipment or items, which shall in all cases be placed
in the Building so as to distribute weight in a manner which will avoid damage
to the Building, which may include the use of such supporting devices as
Landlord may require, and which may not in any case exceed the acceptable floor
loading and weight distribution for the Building. All damages to the Building
caused by the installation or removal of any property of a tenant, or done by a
tenant's property while in the Building, shall be repaired at the expense of
such tenant.
9. Corridor doors, when not in use, shall be kept closed.
10. No birds or animals (except seeing eye dogs) shall be brought into or
kept in, on or about the Premises. No portion of the Premises shall at any time
be used or occupied as sleeping or lodging quarters or for any immoral or
illegal purposes or for any purpose which would tend to injure the reputation of
the Building or impair the value of the Building.
11. Tenant shall not commit waste and shall keep its Premises neat and
clean. All trash and debris must be placed in receptacles provided therefor.
12. Tenant shall not make or permit any improper, objectionable or
unpleasant noises or odors to emanate from the Premises to other parts of the
Building or otherwise interfere in any way with other tenants or persons having
business with them, shall not solicit business or distribute, or cause to be
distributed, in any portion of the Building any handbills, promotional materials
or other advertising, and shall not conduct or permit any other activities in
the Building that might constitute a nuisance. Tenant shall not do any cooking
or operate a restaurant or food service business from the Premises (other than a
microwave oven for use by its employees or a beverage and/or snack service that
is free or of nominal charge for use by employees and invitees).
13. No machinery of any kind (other than normal office equipment) shall be
operated by Tenant on its Premises without Landlord's prior written reasonable
consent.
14. No flammable, explosive or dangerous fluid or substance shall be used
or kept by Tenant in the Premises, except normal amounts used in cleaning.
15. Landlord will not be responsible for lost or stolen personal property,
money or jewelry from the Premises or public or common areas regardless of
whether such loss occurs when the area is locked against entry or not.
16. No coin, vending or dispensing machines of any kind may be maintained
in any Premises, except that tenant may from time to time maintain soft drink
and or snack machines for use by its employees and invitees on a no-charge or
nominal charge basis.
17. All mail chutes located in the Building shall be available for use by
Landlord and all tenants of the Building according to the rules of the United
States Postal Service.
-2-
18. Neither Tenant nor any agent, contractor or employee of Tenant shall
have any right of access to the roof of the Premises or the Building and neither
shall install, repair, place or replace any aerial, fail, air conditioner or
other device on the roof of the Premises or the Building without the prior
written consent of Landlord. Such consent may be expressly conditioned upon
Landlord's supervision of access to the roof and upon such other reasonable
restrictions as Landlord may advise Tenant. Any aerial, fan, air conditioner or
device installed without such written consent shall be subject to removal, at
Tenant's expense, without notice, at any time. Tenant shall be liable for all
damages resulting from the installation or removal of any aerial, fan, air
conditioner or other device.
19. Tenant will refer to Landlord for Landlord's reasonable supervision,
approval and control all contractors, contractor representatives, and
installation technicians rendering any service to Tenant, before performance of
any contractual service. Such supervisory action by Landlord shall not render
Landlord responsible for ally work performed for Tenant. This provision shall
apply to all work performed in the Building, including, without limitation, the
installation of telephones, computer wiring, cabling, electrical devices,
attachments and installations of any nature. Tenant shall be solely responsible
for complying with all applicable laws, codes and ordinances pursuant to which
such work shall be performed.
20. Landlord may from time to time (without any obligation to do so or
liability for not doing so) adopt a appropriate and lawful systems and
procedures for the security or safety of the Building, its occupants, entry and
use, or its contents and Tenant, its employees, contractors, agents and invitees
shall comply therewith.
21. Canvassing, soliciting, and peddling in or about the Building is
prohibited and Tenant shall cooperate and use reasonable efforts to prevent
same.
22. At no time shall Tenant permit or shall Tenant's agents, employees,
contractors, quests, or invitees smoke in any common area of the Building,
unless such common area has been declared a designated smoking area by Landlord.
23. Tenant accepts any and all liability for damages and injuries to
persons and property resulting from the serving and sales of alcoholic beverages
from the Premises. Nothing contained herein shall be construed as the consent of
Landlord to permit the serving or sale of alcoholic beverages on the Premises.
B. The Landlord reserves the right to rescind any of these rules and make
such other and further rules and regulations as in the judgment of Landlord
shall from time to time be needed for the safety, protection, care and
cleanliness of the Building, the operation thereof, the preservation of good
order therein, and the protection and comfort or its tenants, their agents,
employees and invitees, which rules when made and notice thereof given to Tenant
shall be binding upon him in like manner as if originally herein prescribed;
provided such rules do not unreasonably interfere with Tenant's conduct of
business from the Premises and are not in conflict with the provisions of
tenant's lease.
-3-
EXHIBIT "E"
WORK LETTER
This Exhibit is attached to and made a part of the Lease by and between
AETNA LIFE INSURANCE COMPANY ("Landlord") and STANFORD MICRODEVICES, INC.
("Tenant").
A. Definitions. Each term used in this Work Letter shall have the meaning
-----------
hereinafter set forth:
1. "Architect" shall mean the architect selected by Landlord and
---------
responsible for the drafting of the Plans and Specifications and shall
coordinate and supervise with the Contractor the construction of the leasehold
improvements.
2. "Construction Costs" shall mean all costs incurred in the construction
------------------
of the leasehold improvements in accordance with the Plans and Specifications,
as modified from time to time in accordance with the provisions of this Work
Letter. Such costs shall include all hard costs and soft costs to complete the
improvements. Hard costs shall include such costs as labor and materials. Soft
costs shall include such cost as architectural and engineering fees, but shall
exclude any interest incurred on funds expended during the course of the
construction. The cost of signage shall not be part of Construction Costs.
3. "Contractor" shall mean the contractor selected by Landlord and
----------
responsible for the construction of leasehold improvements. Landlord shall
obtain bids from a minimum of three (3) qualified contractors prior to selection
of the contractor. Upon receipt of the bids Landlord shall review same with
Tenant, but Landlord shall make the final selection, using reasonable commercial
judgment. The term "qualified contractor" shall mean contractors with a minimum
of two (2) years experience in constructing leasehold improvements, who maintain
insurance coverage for worker's compensation and general liability coverage in
reasonable amounts, and who are eligible for payment and performance bonds.
Tenant may recommend to Landlord qualified contractors for inclusion in the bid
process.
4. "Plans and Specifications" shall mean the final plans and specifications
------------------------
for the construction of leasehold improvements mutually agreed upon by Landlord
and Tenant, in accordance with the provisions of Section B.1 of this Work
Letter.
5. "Tenant Delay" shall mean any delay in the construction of the Work
------------
caused by Tenant for any reason whatsoever. In the event of a Tenant Delay, the
Commencement Date shall be accelerated one (1) day for every day of delay caused
by Tenant.
6. "Tenant Improvement Allowance" shall mean the sum of $302,064.00 (or
---------------------------- ----------
$14.50 per square foot of rentable area times 20,832 square feet of rentable
----- ------
area) which Landlord agrees to pay towards the Construction Costs, of which
$20,832.00 (or $1.00 per square foot) may be used towards payment of moving and
--------- ----
cabling costs, and $8,332.80 (or $0.40 per square foot) may be used for
-------- ----
architectural costs.
Notwithstanding the foregoing to the contrary, if there remain unused
amounts in one of the foregoing categories, the amounts may be applied towards
costs in one of the other categories.
7. "Work" shall mean the construction of leasehold improvements on the
----
Premises in accordance with the Plans and Specifications.
B. Construction of Premises. Landlord shall cause the Work to be
------------------------
constructed substantially in accordance with the Plans and Specifications;
provided, however, Landlord shall be solely responsible (and the costs thereof
shall not be included in the calculation of deductions from the Tenant
Improvement Allowance) for any repairs, replacements, or upgrades to the
Building and its systems, as well as with respect to exterior appearance, code
compliance and ADA compliance matters, if exterior or structural in nature.
Tenant shall cooperate at all stages to promote the efficient and expeditious
completion of the Work. Upon approval of the Plans and Specifications and
payment of any excess, as hereinafter described, Landlord shall enter into a
construction contract with the Contractor. Landlord makes no representations or
warranties as to the Work and shall have no liability therefor; Landlord's sole
obligation shall be to enforce any warranty from the Contractor with respect to
the Work.
1. Plans and Specifications Approval. Upon execution of the Lease, Tenant
---------------------------------
shall furnish to Landlord and the Architect preliminary space plans for the
construction of the Work which the Architect shall use to prepare and submit to
Landlord within the next thirty (30) days the proposed plans and specifications
for the Work. Landlord shall thereafter have fifteen (15) days within which to
approve the proposed plans and specifications or disapprove, in which event,
Landlord shall advise tenant and the Architect, in writing, of the reasons for
its disapproval. The Architect shall have fifteen (15) days from the date of
written disapproval from Landlord to make the adjustments required by Landlord,
and resubmit the revised plans and specifications to Landlord and Tenant.
Thereafter, Landlord shall again have ten (10) days to approve or disapprove the
revised plans and specifications. If Tenant fails to submit the preliminary
space plans on a timely basis, it shall constitute a Tenant Delay. The approval
of the Plans and Specifications by Landlord shall not be construed as any
representation or warranty by Landlord with respect to the accuracy of the Plans
and Specifications or their compliance with applicable laws, including, without
limitation, compliance with the Americans With Disabilities Act, for which it
shall be the sole responsibility of the Tenant to insure the Premises are in
compliance therewith. Upon receipt of the bids from qualified contractors,
Tenant may revise the Plans and Specifications with the approval of Landlord.
2. Tenant's Share of Costs. Tenant shall be liable and pay for all
-----------------------
Construction Costs except to the extent of the Tenant Improvement Allowance
which shall be paid by Landlord. Upon approval of the Plans and Specifications,
Landlord shall obtain estimates of the Construction Costs from the Contractor
and furnish copies to Tenant. In the event such estimates exceed the Tenant
Improvement Allowance, Tenant shall pay the excess to Landlord within five (5
days prior to commencement of construction. If Tenant fails to tender the excess
timely, Landlord shall not proceed with construction, and such delay shall
constitute a Tenant Delay for each day until the excess is paid. Upon receipt of
the excess, Landlord shall cause the Contractor to commence construction. Upon
completion of the construction, Landlord shall provide to Tenant an accounting
of the final costs, crediting Tenant for the Tenant Improvement Allowance and
any excess
-2-
previously paid to Landlord, but in no event shall Tenant be liable for costs in
excess of the Contractor's accepted bid (as modified by appropriate change
orders.
3. Construction of the Work. Following approval of the Plans and
------------------------
Specifications and payment of any excess by Tenant, either the Landlord or the
Contractor, as appropriate, shall apply for a building permit, and the
Contractor shall commence construction of the Work on the later of (i) May 1,
2001 or (ii) receipt of the permit and, thereafter, proceed with all due
diligence until substantial completion.
The Work shall be deemed to be substantially complete upon (i) Landlord's
obtaining a certificate of occupancy or its equivalent from the appropriate
governmental authority and (ii) the Work is sufficiently complete in accordance
with the Plans and Specifications so that Tenant may occupy the Premises for its
use, subject to any punchlist items.
4. Unavoidable Delays. Tenant and Landlord acknowledge that there may be
------------------
unavoidable delays in the construction of the Work. The term "unavoidable
delays" shall mean events beyond the control of Landlord or the Contractor,
including, without limitation, acts of God, war, civil commotion, strikes, fire,
flood, earthquake or other casualty, governmental regulation or restriction and
adverse weather conditions or continued possession by prior tenants or
occupants.
5. Changes. If Tenant requests a change, alteration or addition after the
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final Plans and Specifications have been approved, Tenant shall submit same in
writing to Landlord and to the Architect. If Landlord approves such change,
Landlord shall obtain from the Contractor and provide Tenant with an estimate of
the cost of such change. Tenant shall notify Landlord within one (1) business
day if Tenant elects to proceed with the change, in which event, Landlord shall
incorporate the change into the Plans and Specifications. The cost of such
change shall also be incorporated in the calculation of the Construction Costs.
If Landlord disapproves of such change, it shall immediately notify Tenant in
writing specifying the reasons for such disapproval and the construction shall
proceed in accordance with the previously approved, final Plans and
Specifications. Any delay in construction time (determined in accordance with
lie next sentence) caused by such changes shall constitute a Tenant Delay. The
Architect, in his sole discretion, shall determine whether such change
necessitates a delay in construction and the length of such delay.
6. Governmental Regulations. Tenant shall be solely responsible for causing
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the design and construction of the Work to conform to any and all requirements
of applicable building, Plumbing, electrical and fire codes and the requirements
of any authority having jurisdiction over the Work, as such codes and
requirements may from time to time be amended or supplemented.
7. Entry by Tenant. During the course of construction of the Work, Tenant
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may enter the Premises for purposes of inspecting the Work, installing trade
fixtures, erecting signs, stocking merchandise and such other Work as may be
necessary or desirable to prepare to occupy and conduct its business from the
Premises, provided that (i) Tenant assumes the risk of injury to person and
damage to its property, (ii) any entry shall be subject to the provisions of
this Lease, except that the Lease Term shall not commence and rent shall not be
due and (iii) Tenant shall not unreasonably interfere with the construction of
the Work on the Premises. Tenant shall also provide evidence of
-3-
insurance prior to any such entry. If such entry shall interfere with the
construction of the Work, then Tenant shall immediately leave upon the request
of Landlord.
C. Delivery of the Premises. Subject to unavoidable delays, the Work is
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estimated to be substantially completed for delivery of the Premises to Tenant
by the Commencement Date. If an unavoidable delay will prevent the substantial
completion of the Work prior to the scheduled Commencement Date, then Landlord
will notify Tenant in writing. Upon substantial completion of the Work, Landlord
will notify Tenant in writing and afford Tenant all opportunity to inspect the
Premises prior to delivery. At the inspection, Landlord and Tenant will prepare
and agree upon a punchlist of any items that remain to be completed.
If the Work is substantially completed to permit delivery of the Premises
prior to the Commencement Date, Landlord shall notify Tenant in writing and,
should Tenant elects to take occupancy early, then Tenant may inspect the
Premises and prepare, with Landlord, a punchlist prior to delivery.
D. Limitation. This Exhibit shall not be deemed applicable to any
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additional space added to the original Premises or, in the event of a renewal of
the Lease Term, to the original Premises, itself, during the renewal term,
unless expressly so provided in the Lease or any amendment thereto.
-4-
EXHIBIT "H"
PARKING
This Exhibit is attached to and made a part of the Lease by and between
AETNA LIFE INSURANCE COMPANY ("Landlord") and STANFORD MICRODEVICES, INC.
("Tenant").
Provided that Tenant is not in default under the Lease, Landlord shall make
available to Tenant throughout the Lease Term parking as required by The City of
Richardson code for this property type. As consideration for the parking spaces,
Tenant shall pay to Landlord as Additional Rental the amount, if any, set forth
below, together with each monthly payment of Base Rental. Except with respect to
any reserved parking that Landlord may establish from time to time, all tenant
parking will be on a non-reserved, first-come, first-serve basis. Landlord may
elect to establish parking zone(s) or otherwise restrict access to the parking
spaces on the Building and require specific identification and/or access cards
for those vehicles allowed to park in such zone(s) or parking spaces. Landlord
reserves the right upon written notice posted in the parking areas to
temporarily close the parking areas for repairs or alterations as Landlord may
deem appropriate.
Tenant agrees to pay to Landlord during the Lease Term the parking charge
of $0.00 per month for each parking space, beginning on the Commencement Date. A
pro rata portion of such parking charge shall be paid for any partial month
during the Lease Term. The parking charge is subject to adjustment for any levy
or assessment by a governmental authority.
Landlord shall not be liable for any damage to Tenant's vehicles, or those
of any employees, agents, contractors or invitees of Tenant who use the parking
spaces and Tenant hereby waives on behalf of itself and its employees, agents,
contractors and invitees all claims against Landlord, whether based on
negligence or otherwise, and arising out of any loss or damage to vehicles or
other property while located in the parking spaces, or arising out of personal
injury sustained in connection with the use of such parking spaces. Tenant
hereby agrees to advise each of its employees, agents, contractors and invitees
of such waiver of claims.
The failure to comply with any of the rules and regulations governing the
parking shall entitle Landlord, in addition to any other remedies provided under
the Lease, to terminate Tenant's right to use the parking spaces and low any
vehicles which are in violation of the rules and regulations at the sole cost
and expense of Tenant and without liability for damages resulting therefrom.
[Illegible]
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Landlord's initials
/s/ Tom S
----------------------
Tenant's initials
EXHIBIT "I"
SIGNAGE
Tenant shall be able to utilize signage generally conforming to that which
was present for Coollink.
. 21" x 42" Aluminum pan with radius comers-- V Depth
. Painted Sherwin Williams 2074
. Gerber Deep Mahogany Brown Copy A Border
. 4" Copy only-- 3 Line Maximum
. 1 1/2" Between Lines of Copy
. 35" Maximum Length of Copy
. Condensed or expanded copy not accepted-- See below
. Letter style-- Holvedca Compact
. Logos subject to Landlord and Architects' approval.
. Sign drawings must be submitted for Landlord and Architects'
written approval before fabrication.
Our purpose in providing the Tenants with these requirements is to create a
good business image which gives the Impression of quality and professionalism.
[GRAPH OMITTED]
EXHIBIT "J"
RENEWAL OPTION
This Exhibit is attached to and made a part of the Lease by and between
AETNA LIFE INSURANCE COMPANY ("Landlord") and STANFORD MICRODEVICES, INC.
("Tenant").
Tenant and any Related Transferee, but not any other assignee or sublessee
of Tenant, is hereby granted two (2) option(s), of three (3) years each to renew
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this Lease. Provided Tenant is not in default at the time of exercise of the
option or, again on commencement of the renewal term, Tenant may exercise each
option upon written notice to Landlord given no earlier than one hundred eighty
(180) days and no later than one hundred fifty (150) days before the expiration
of the then current term. If Tenant fails to exercise the option within the time
frame set forth in the preceding sentence, the Tenant shall be deemed to have
elected not to exercise the option and this renewal option and all other
unexercised renewal options contained herein shall be deemed to have terminated;
time being of the essence in the exercise of such option. Each renewal term will
be on the same terms and condition as those contained in the Lease except as
follows:
(a) there shall be no further rights to renew after the exercise of the
last of the renewal option(s) granted in this Exhibit;
(b) any tenant improvement allowances, rental concessions or the like
granted by Landlord to Tenant in the initial Lease Term shall not be applicable
in the renewal term; and
(c) the rental for the renewal term shall be the fair market rental rate
for the Premises based on the then prevailing market rental rate for properties
of equivalent quality, size, utility and location, taking into account a lease
for a lease term of that of the renewal term and with a tenant of the credit
standing of Tenant.
Within fifteen (15) days of receipt of Tenant's notice electing to renew,
but no earlier than one hundred eighty (180) days before the expiration of the
then current term, Landlord will advise Tenant in writing of its determination
of the fair market rental rate for the renewal term in accordance with the
provisions of subpart (c), above. If Tenant elects to proceed, Tenant must
notify Landlord within the succeeding fifteen (15) days after receipt of
Landlord's notice setting forth the fair market rental rate for the renewal
term, and Landlord will cause an amendment to be prepared for execution by
Tenant, or if Tenant does not agree with Landlord's determination, then Tenant
may elect to withdraw its notice of exercise of the renewal option by delivering
written notice of such withdrawal to Landlord within the 15 day period, in which
event, this Lease shall expire at the end of the then current term. If Tenant
fails to notify Landlord of an election to withdraw within the 15-day period,
then Tenant shall be bound by the exercise of the renewal option and the rental
for the renewal term will be at the rate set forth by Landlord in its notice to
Tenant. If Tenant elected to proceed with the renewal option or is deemed to
have done so, then Tenant shall execute and return to Landlord the amendment
within ten (10) days of the date delivered to Tenant.